Trade and Environment Law for Rio Declaration - myassignmenthelp.com

Question: Discuss about theTrade and Environment Law for Rio Declaration. Answer: Introduction Rio Declaration, or is fully referred to as the Rio Declaration on Environment and Development, was a very short document which had been produced back in 1992 at the UNCED, i.e. the United Nations Conference on Environment and Development, which is also referred o as Earth Summit. This declaration covered 27 distinctive principles which had the intention of guiding the different countries in future sustainable development. This declaration had been signed by more than 170 nations. The significance of Rio Declaration lies in the rising awareness regarding the environment before the world. Through this declaration, remarkable efforts were placed in scientific contributions which acted as a catalyst in the environmental movement[1]. Principle 2 of Rio Declaration is the prevention principle, which in many ways, is the foundational principle of this declaration. This discussion is focused on highlighting principle 2 of this declaration, along with the manner in which this principle helps in solving the global environmental problems. In doing so, the discussion would elucidate principle 2 of this declaration, along with the role played by it. The discussion would then transcend to the manner in which this principle helps in solving environmental problems. In doing all this, reference would be made to the two leading cases of Trail Smelter Arbitration Arbitral Trib.[2] and Corfu Channel Case (United Kingdom v. Albania)[3]. Contents of principle This declaration gives the principles which recognize the significance of environment preservation and puts forth the global guidelines for doing this. It presents the standards which the member nations of UN have to follow in creating their domestic and international environmental policies, and is also the basis of forming agreements as it relates to conservation and environment[4]. Principle 2 of this declaration provides that as per the UN Charter and the international law principles, the states have the sovereign right of exploiting their resources, based on their environmental and developmental policies. It further states that the states have the duty of making certain that the activities in their jurisdiction or under their control are not damaging the environment of other states or of such areas which are out of their national jurisdiction limits[5]. This prevention principle has three key components. These three are sovereignty over the natural resources, preventing transboundary environmental harm and preventing environmental harm which is beyond the natural jurisdiction. The sovereign dimension links this principle to the principle covered under Principle 3 which is of right of development, along with linking it to development set, in which the prevention dimension brings the intergeneration equity aspect covered under principle 3 together and also the principle 4, resulting in creation of environment set. There is a trend being seen in the prevention dimension being understood as a due diligence duty, in context of the environment, despite the location, which also includes the purely domestic activities. This principle presents that the states have to prevent damage to the environment and also have to work on reducing, controlling and limiting such activities which pose a risk of such damage or do actually cause damage[6]. A key point which has to be noted down regarding this principle is that principle 2 reflects customary international law, and yet it is not decisive. Regarding the activities which cause environmental degradation or pollution, this principle shoes the requirement of addressing other questions. For instance, what exactly is environmental damage, and what are the prohibited environmental damages. The responsibility imposed on the states to refrain from causing environmental damages in the areas which are out of their jurisdiction predates Stockholm Conference. Further, it is related to the states obligation of protecting the rights of other states within the territory, particularly the right of integrity and inviolability in war and peace. This obligation had been relied by arbitral tribunal in the often cited Trial Smelter case. In this case, it was provided that under the principles of international law, there was no such state which had the right of allowing the use of territory or using territory in a way which results in injury by fumes in another persons territory, where the case revolves around injury and serious results established through convincing and clear evidence[7]. The majority of writers have accepted this particular formulation as being a rule of customary international law. The example of this is the conclusion of Rapporteur of ILA Committee on the Legal Aspects of Environment after examining the state practice based on rule drawn in Trail Smelter case. This had also been cited by Judge de Castro, with apparent approval, in the dissenting statement made in the Nuclear Tests case[8]. In this particular case, ICJ had been asked by Australia to declare that carrying further atmospheric nuclear tests was no consistent with the rules which were applicable in the international law. Thus, it would have been unlawful so far it covers modification of physical condition over and of territory of Australia, along with the resources of seas and pollution of atmosphere. The precautionary principle is not something which has been present in the global environmental laws since a long time. Even then, it is a principle which has attained prominent position as being a topic of debate. This principle aims at anticipating and avoiding the environmental damages, before they even take place. This preventive measure is novel in varied manner and it ultimately services lower mitigation costs of the resulting environmental damages. Execution of precautionary principle continues to be tricky in economic sense, as it puts duty on those who form possible risks instead of posing responsibility on those who have done something in the past. It is both crucial and debatable feature that this principle shifts the burden of science based evidence from the ones who would slow down or restrict a possibly risky act to the ones who undertake the activity[9]. As stated earlier, there have been legal commentators who have raised the arguments that the precautionary principle approaches level of customary international law. There also has been pointed out that such status is not attained owing to the fact that the precautionary principle had been somewhat unclear and had been interpreted in different manners, and is not accepted on national level by much of world. One of the descriptions of this principle is that it is culturally framed and evolving concept which takes its indication from the changing notions regarding the suitable roles of politic, law, ethics, economics and science in the protection and management of environment in a proactive manner. As per James Cameron, who is one of the proponents of this principle, there are various legal principles where indirect precautionary measures were present. The most important one was the tort concept of strict liability where absolute liability in activities is provided; for instance burial of environmental waste being deemed as abnormally dangerous. The possibility of being held liable in a strict manner has been explained by Cameron when the individual acts in a manner which shows lack of reasonable care, and where the actors had to be more careful and had to consider the costs associated with the possible liabilities before they acted. Another substantial point raised by Cameron was that it is commonly criticized on the grounds of being uncertain, as this was something which could not be proved with 100% certainty[10]. Solving environmental problems This principle is of particular significance in context of solving the global environmental problems like loss of biodiversity and climate problem. Where this declaration or particularly its principle 2 is applied, the issues which threaten the environment can be prevented. To show the role of principle 2 in this context, two cases have been detailed here. The Trial Smelter Arbitration case involved a case in which US sought damages from Canada by bringing legal action against them in the court and also applied for injunction owing to air pollution in Washington, as a result of Trail Smelter, which was a Canadian company having its domicile in Canada. The rule which was applied in this case was covered under principle 2, where the states have the duty of protecting against harmful act of people within their jurisdiction at all times as being the states responsibility. The climate in Washington from period of 1925 to 1937 was damaged due to resultant effect of sulphur dioxide. The issue in this case was whether it was the responsibility of the state towards protecting the other states from the harmful ill effects by individuals at all times from within its jurisdiction[11]. The court held in this case that it was the responsibility of the state of protecting the other states from harmful acts by people at all times from its jurisdiction. The states do not have the right of using or allowing using the territory in a way which would cause damage owing to fumes to another or to the proper or other individuals as was covered under the laws of US and the international law principles. The arbitration, after looking into the facts of this case, stated that it was the responsibility of Canada, under the international law, regarding the conduct which was undertaken by the company of Canada. The responsibility was on the government of Canada to ensure that the conduct of Trail Smelter followed the obligations covered in Canada, in conformity with the international law. The company thus was required to stop causing any damage from fumes so long as the conditions present in Washington, of pollution, were present[12]. Another case which is of significance in this context is the Corfu Channel case. In this matter, the British warships were fired at by the Albanians which had been sailing across the North Corfu Channel. The Albanians stated that the foreign ships did not have the right of passing across the territorial waters of Albanian, without the previous permission and notification from authorities of Albania, when the UK protested the actions of forces of Albanian. UK put forth the argument that the states could see the ships for innocent purposes across the straits which were used in the international navigation. But this was refuted by Albanians on the grounds that the channel did not come under class F international highways, which presented the passage right, as it was meant for local traffic exclusively[13]. In this matter the court held that the geographical situation which connected two parts of high seas and the same not being used in international navigation was test of whether a chan nel had to be considered as one which belonged to class of international highways where passage could not be restricted by coastal state in peace times. The ICJ in this case had affirmed that it was not the obligation of each and every state to allow its territory to be used for acts which went against the rights of other states in a knowing manner[14]. Conclusion Thus, to bring this discussion to its conclusion, it can be stated that the purpose of this discussion has been fulfilled. Rio Declaration is a key document in context of environmental protection. The discussion provided a detail on the principle 2 of Rio Declaration in context of the role played by this preventive principle in making it the responsibility of the states to stop any such acts by their individuals or entities, which could injure or harm the environment of such area which is out of their jurisdiction. This principle effectively stops the nations from harming the environment of other nations. And this is the reason why it is deemed as the fundamental base of Rio Declaration. This point was established through the two cases, particularly the Trial Smelter Arbitration where Canada had to bear the impact of a company domiciled in Canada polluting the environment of US, as based on this principle, it was seen as a duty of Canada to control its entities. Thus, this principle is an effective principle in safeguarding the environment and also helps in solving the environmental problems, as and when they are raised. Bibliography Articles/ Books/ Journals Sands P, Peel J, and MacKenzie R, Principles of International Environmental Law (Cambridge University Press, 2012) Viuales JE, The Rio Declaration on Environment and Development: A Commentary (Oxford University Press, 2015) Cases Australia v France (1974) ICJ Reports 253 Corfu Channel Case (United Kingdom v. Albania) I.C.J. 1949 I.C.J 4. 22. Trail Smelter Arbitration Arbitral Trib., 3 U.N. Rep. Intl Arb. Awards 1905 (1941) Others Case Briefs, Corfu Channel Case (United Kingdom v. Albania) (2018) https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-17/corfu-channel-case-united-kingdom-v-albania-2/ Case Briefs, Corfu Channel Case (United Kingdom v. Albania) (2018) https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-17/corfu-channel-case-united-kingdom-v-albania-2/2/ Case Briefs, Trail Smelter Arbitration (United States v. 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