Akhtarkhavari. Transboundary Principle Muy Bien Tratado.

8/12/2019 Akhtarkhavari. Transboundary Principle Muy Bien Tratado.

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Power Environm ental Principles and theInternational Court of JusticeAfshin Akhtarkhavari

I. IntroductionThis article diseusses the role and function of environmental principles in terms ofhow they interplay with or constitute power in the context of the IntemationalCourt of Justice (ICJ) developing and delivering its written judgments. Theinteraction of litigants with each other and the Bench of the ICJ is important notonly for conveying facts and positions on the law; it shapes how the Court itselflearns what its views are on legal issues. The idea that the process of litigation cangenerate common knowledge which is shared amongst the judges of the Bench andpotentially states which might appear before the Court, as well as the futureconstituency of the ICJ, is the kind of collective social leaming that forms the basisof the discussion in this article. It argues that the focus on social leaming highlightsthe significant role that environment principles can play in decisions of the ICJ,notwithstanding their infrequent and direct use in the Co urt s de termination of thelegal position of the parties before it. The focus on social leaming suggests thatdiscussions on the rule of law ignore the pow er the ICJ has to shape disputes beforeit. It also misses the potential of certain kinds of norms to influence disputes andthe resolution of them before powerful institutions like the ICJ.

Institutions like the ICJ do not just solve disputes based on w hat the parties to acase have argued are the right and wrong interpretations of the law and the facts ofthe cas e . Functionalist approaches to courts and dispute-resolution bodies canappear disparagingly uninterested in the political character of their work.^ This ispartly symptomatic of the idea that institutions especially dispute-resolutionbodies are meant to apply their authority w ithout bias or dispositions that favouranything outside of their immediate jurisdiction.^ Courts are meant to apply rules

Senior Lecturer (PhD) at the Griffith Law School. I wish to thank Professor Rothwellwho helped me greatly in shaping this and other recent scholarly activities of mine. I


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in a neutral and direct way, and anything else is viewed as an inappropriateexercise of their power. ^ This is hardly the case, however, as shown by anabundance of research.5 When the ICJ adjudicates disputes and delivers thereasons for its decisions, it is also contributing more generally to change inintemational law and politics rather than simply applying in a neutral way a set ofrules to the facts before it. 6

It has been argued that judgments of the ICJ can contribute to change forreasons other than that they are legally binding . It is their persuasiveness thatdetermines the extent to which states will refer to or avoid them.^ Jennings pointsto the practical authority and power associated with certain judgments thatdetermine their relative impact on states and their use as a precedent for the ICJ.^These ideas encapsulate the potential that intemational organisations like the ICJhave to exercise authority and power over knowledge claims , or the deferencethat states show to their claims to certain types and kinds of knowledge andt t h O In other words, they highlight the potential role or function of the ICJ to

Governance and Power ( 1997)3 .^ For instance, commentators criticised the ICJ for its pragm atic rather than strict legalreaction to the Nuclear Tests Cases NewZealand v France) (Interim Measures)[1973] ICJ Rep 135, (Merits) [1974] ICJ Rep 457: R St J McDonald and B Hough,The Nuclear Tests Case Rev isited (1977) 20German Yearbook of International Law337; TFranck, W orld M ade Law: The Decision of the ICJ in the Nuclear TestsCas es (1975) 69 American Journal of International Law 612; J J Ruiz, M ootness inIntemational Adjudication: The Nuclear Tests Cases (1977) 20 German YearbookofInternational Law 358.^ Generally, see, MByers, Custom, Power and the Power of Rules: InternationalRelations and Customary International Law (1999) esp 120-24; AColeman, TheIntemational Court of Justice and Highly Political M atters (2003) 4 MelbourneJournal of International Law 29; J W essel, Judicial Policy-Mak ing at theIntemational Criminal Court: An Institutional Guide to Analyzing IntemationalAdjudication (2006) 44 Columbia Journal of Transnational Law7,11; TGinsburgBoun ded Discretion inIntemational Judicial Law ma king (2005) 45 Virginia Journalof International Law631 . For an insighttui review of the way the ICJ exercised itsjudicial-legislative fonction in the area of the law relating to intemationalwatercourses in the Case Concerning the Gabcikovo-Nagymaros Project(Hungary/Slovakia) [1997] ICJ Rep 7, see E Benvenisti, Cus tomary IntemationalLawas a Judicial Tool for Promoting Efficiency in EBenvenisti and MHirsch (eds). TheImpact of International Law on International Cooperation (2004) 85.

For similar ideas in the context of other courts and tribunals, see DKennedy, ACritique of Adjudication fin desiede) (1997); J Trachtman, TheDomain of W TO


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frame and structure the common and collective understanding of states whichmight litigate before them, as well as the understanding of the Court itself in termsof how it responds to issues at some future date. ' '

Section 2 of the article includes a description of the conception of power as adiffuse persuasive force, which forms the basis of the discussion which follows.This is followed in section 3 with a brief description of the use of environmentalprinciples in the judg m ents of the ICJ. The variable nature of the function and roleof environmental principles and their potential for social learning are examined inthree ways in the sections that follow. Section 4 discusses how environmentalprinciples interplay with the institutional power of the ICJ to frame the negotiationsof states post-adjudication. Although it is arguable that this is a functionalistargument as mentioned above, this section asserts that the background knowledgecreated during the dispute-resolution process makes environmental principles moremeaningful for the parties and shapes how they might use them. Section 5examines the productive power of ideas which are expressed through the ICJ indealing with legal issues before it, or in generating a common understanding of anopen-textured environmental principle. Sections 5(a) and 5(b) examine whetherenvironmental principles as abbreviated abstractions refer to ideas that shape theCourt's approach to the legal issues before it. They compare whether theprecautionary principle and sustainable development had a diffuse role inproducing the Court's approach in the Case Concerning the Gabcikovo-NagymarosProject (Hungary/Slovakia). '^ This comparative study aims to assess wh etherenvironmental principles can produce how the ICJ develops a commonunderstanding of an interpretive position in relation to issues before it. Section 6analyses whether the open-textured nature of Principle 2 of the United NationsDeclaration on Environment and D ev elop m en t'^ or Principle 21 of the 1972Declaration of the United Nations Conference on the Human Environment''* hasenabled the ICJ to generate a unique common understanding amongst several of itsjudgments, which is a significant departure from its established understanding inintemationai law.

Power of Liberal Intemationai O rganization s', above n 2.' ' There are different w ays to assess the role and function of intem ationai courts andtribunals. For some interesting exam ples, see R Keohane, A M oravcsik, andA M Slaughter, 'Legalized Dispute Resolution: interstate and Transn ational' (2000)54(3) International Organization 457; W essel, above n 5; W W eme r, 'Securitizationand Judicial Review: A Semiotic Perspective on the Relation Between the Security


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II Power and Social LearningThere is no doubt that power is a ubiquitous feature of social and political lifeinternationally. Our answers to how it is constituted, enable us to better understandwhy actors at the intemational level behave the way they do towards each other andhow they collectively form interests in particular matters. The concept of power ismore widely interpreted and critiqued than probably any other idea used in thesocial sc ienc es. ^ In intemational relations, the realist conception of pow er still hasa strong pull, although recent scholarship in the area has clearly sought to displaceit. ^ However, there are different ways to conceptually categorise power which canin tum shape how we understand particular events and decisions. Conceptions ofpower have the potential to shape how we understand and approach the work offormal or informal dispute-resolution institutions at the intemational level, and howenvironmental principles frame or stmcture change through them in intemationallaw and politics. This article adopts the conception of power discussed andtheorised in intem ational relations by Bamett and Du va ll. ^ The intem ational lawliterature m akes use of the concept of power, but draw s upon intemational relationsfor its source of sociological inspiration. ^

Bamett and Duvall define pow er as the produ ction, in and through socialrelations, of effects that shape the capacities of actors to determine their owncircumstances and fate . ^ This is quite different from the conception of pow er thatsees it in relational terms. Baldwin, for instance, views pow er as the cap acity toget somebody else to do what he or she would not have done otherwise .^ Bam ett

On varying arguments relating to conceptions of power see generally, S Guzz ini,Structural P ower: The Limits of Neorealist Pow er A nalys is (1993) 47(3)International Organization 443 ; S Guzzini, Th e Use and Misuse of Power Analysis inIntemational The ory in R Palan (ed). Global Political Economy: ContemporaryTheories (2000) 53 ; D Baldwin, Pow er and Intemational Re lations in W Carlsnaes,T Risse and B A Simmons (eds).The Handbook of International Relations (2002) 179.^ See, for instance, Gu zzini, Structu ral Power: The Limits of Neo realist PowerAn alysis , ahove n 15; Guzzini, The Use and M isuse of Power A nalysis inIntemational T heo ry , above n 15; Baldwin, Pow er and Intem ational R elation s ,above n 15; J Nye, Soft Power: The Means to Success in orldPolitics (2004). M Bam ett and R Duvalt, Pow er in Global Go vernan ce in M Bam ett and R Duvall(eds). Power in Global Governance (2005) 1; M Bam ett and R Duvall, Pow er inIntemational Politics (2005) 59 International Organization 39. This work draws onBamett and Duvall because of the particular way they have integrated moderateeonstmctivist orientations into their conceptualisations of power. Also, the various


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Pow er Environm ental Principles and the International Court of Justice 95

and Duvall would argue that their defmition brings together two core dimensionswhich wo uld differentiate it from B aldw in s. They characterise them as the kindsof social relations through which power works, and the specificity of the socialrelations through which po w er s effects are pr od uc ed .2 They use their deflnitionof power and the two dimensions of it to develop a taxonomy which avoids havingto prioritise discussions of agency and stmcture.^^Bam ett and D uva ll s taxonom y of pow er is represented be low in Figure 1.They refer in Figure 1 to the institutional and productive pow ers which this sectiondescribes as expressions of diffused power. In either instance, the real productionof the effects of power depends on actors interacting w ith each other within a socialcontext to collectively leam rather than directly being required to adjust

predetermined preferences. Additionally, as discussed in section 2 below,historically the ICJ has not often used its direct power to adjudicate the rights ofparties in terms of their obligations to comply with environmental principles. Therest of this section discusses the ideas of institutional and productive power whichare applied later in this article.

Figure 1: ^ Types of pow erRelational specificityDirect Diffuse

Power worksthrough

Interactions of specific actors

Social relations of constitutionCompulsory

Structural

Institutional

Productive

a) Institutional powerBamett and Duvall develop the concept of institutional power to refer to situationswhere actors indirectly control others through formal or informal institutions whichmediate between intemational actors. ^ Intemational institutions are exam ples ofsituations where states do not exercise direct control over each other but seek toinfluence the direction of change through their mies and procedures.^^ What isimportant for this conception of power is that the institution is not completelydominated by one actor. In fact, Bamett and Duvall draw from scholarship on the


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moderate versions of the social constmctivist tradition in intemational relations,like Abbot and Snidal,^^ as well as more recently from the work of Bamett andFinnemore,^^ to argue that it is more likely for institutions to exist independentlyof specific resource-laden actors .^^ T his position is consistent with constm ctivistontology, which argues that power and interests do not exist independently ofinteractions w ithin g roup s. ^

The social distance between taking an action and the production of its effectson an actor is a feature of this particular conception of power. As a result of thislag between stimulus and effect , the exact effects or results of pow er canno teasily be identified. 3 This particular conception sees the potential of pow er tohave effects even when the social relations between actors are at a ph ys ical,temporal and social dis tance from each other.^^ Th is means that in institutions, forinstance, an actor cannot directly control or exercise power over someone else.Although u ltimately the pow er of an actor might express itself in producing certaineffects on others, this will happen in a diffuse way. This is in contrast to theclassical realist account of power which see actor A as using their material,normative and symbolic resources to directly control actor B in a particularsituation. ^

Institutional pow er works throug h the soc ially extended, institutionally diffuserelations that parties have with each other. This means that pow er will onlyexpress itself because actors socialise with each other through and within thestmctures established within the formal or informal institution. Bamett andD uva ll s conception of institutional po wer is different from their conception ofpower as productive in terms of constituting particular social relations amongstactors. What institutional power shares with productive power is its focus on thediffuse way in which it can have effects on actors. b) Productive powerIn contrast to the concept of institutional power, productive power is moreeoncemed with constitutive social processes which are not necessarily controlledby specific actors but which are effected through the meaningful practices ofactors .^- The social processes that create mean ing for actors in terms of wh at theycan do in a particular context also shape their understanding of who they are andwhat they want. The idea of productive power, according to Bamett and Duvall, isa diffuse and general social process. This means that it is more about systems of


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considering the various ways in which actors interplay with reifications andmeaning or episteme.^^In the context of environmental issues, for instance, anthropocentricism is asystem that signifies particular ways in which an actor will relate to others in termsof how they view their relationship to the environment. It is also a discourse, or asocial process and the systems of knowledge through w hich meaning is produced,fixed, lived, experienced, and transformed .^^ In the context of anthropocentricism,it means that actors will socialise in a way that will shape intersubjectives structureto favour human interests over the environment. As a result, the preferences ofactors to protect nature for its own sake will be working against the deeperdiscourse that underpins the discussions being had about the environment. Drawingfrom Foucault, Adler and Bernstein have also argued in the context of intemationalrelations that knowledge is productive in the sense of defining and constituting thesocial reality or the orde r of global things.- ^ Ad ler and B ernstein use the termkn ow led ge to refer to the power that discourse has to produce particular socialfacts.The idea of productive pow er is built on the conception of power as a socialpro cess whereby actors come to see themselves as having particular socialidentities or capacities in particular situations. ^^ The interaction of ind ividual

judges with each other and the litigants throughout the proceedings helps producethe way they interplay with and are constituted by social facts, knowledge orreifications of various kinds, which include norms like environmental principles.This implies that this conception of power is inherently connected with the socialleaming process which shapes how the ICJ as a group of judg es interpret particularfacts or the law with which they are dealing. In this sense, power is expressedthrough the ICJ as opposed to something that it can wield against others.

III The International Court of Justice and EnvironmentalPrinciplesVarious intemational judicial, tribunal or arbitral bodies have jurisdiction and havedealt with aspects of intemational environmental law, and in particular haveemployed environmental principles in their work.^^ However, there is no singleintemational court, tribunal or arbitral body that is designed to deal solely with

Bam ett and D uvall, Pow er in Global Gov em anc e , above n 17, 20.


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intemationai environmental lawissues.^ The focus of this article is on the ICJ notdue to the strength of its contribution to shaping intemationai environmental lawbut because of its position as the most prominent dispute-settlement bodyintemationally, and because it has a more general jurisdiction than courts andtribunals of issue-specific regimes like the Intemationai Tribunal for the Law of theSea or the World Trade Organization s Dispute Settlement Panel. ^ In 1993, theICJ set up a permanent Chamber on Environmental Matters, * but it has yet to dealwith a case that raises issues solely dealing with the protection of the environmentor natural resources. ^^

It has been argued that dispute settlement has contributed very little to thedevelopment of intemationai environmental law. *^ Although dispute-resolutionbodies have not used terms such as rules , principles or standards in aconsistent way,^ the scholarship often questions the functional value of theabstract or open-textured nature of principles in directly resolving particular legal

For discussions relating to the need for an intemationai court to deal withenvironmental matters, see Amedeo Postiglione, TheGlobal E nvironmental Crisis:The Need for an International Court of the Environment (1996); ARest, TheIndispensability of an Intemationai Environmental C ourt' (1998) 7 Review ofEuropean Comm unity and International Environmental Law 6 3 .See arts34 and 36 ofthe Statuteofthe International Court of Justice establishingitsgeneral jurisdiction over intemationai disputes.Intemationai Court of Justice, Communiqu 93/20 on the Establishment of aPermanent Chamberfor Environmental Matters (19 July 1993).The Chamber will not play a role in relation to environmental disputes until aparticular partyto adispute refers acaseto it: SSchwebel, Ad Hoc ChambersoftheIntemationai Courtof Justice' (1987) 81American Journal of International L aw 831.On an unsuccessful attempt to refer easesto theChamber, see the Case Concerningthe Gabcikovo-Nagyma ros Project (Hungary/Slovakia) [1997]ICJRep7.Stephens, The Role of International Courts and Tribunals in InternationalEnvironmental Law, aboven 6, 9. For studies that have explored the way in whichdispute-resolution bodies have used intemationai environmental law, see J MG illroy,'Adjudication Norms, Dispute Settlement Regimes and Intemationai Tribunals:TheStatus of Environmental Sustainability in Intemationai Jurisprudence' (2006) 42Stanford Journal of International Law 1; JDunoff, 'Institutional Misfits: TheGATT,the ICJ and Trade-Environment D isputes' (1994) 15 Michigan Journal ofInternational Law 1043; TStephens, 'Mu ltiple Intemationai Courts and the Fragmentation of Intemationai Environmental Law (2006)25Australian Yearbookof International Law 227; Stephens, International Courts and Environmental


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or social problems before them. ^^ This means that the role and function ofenvironmental principles in the adjudication of disputes are classed and describedas indeterminate or political in nature. ^ Perhaps the ethical and aesthetic, ratherthan purely economic judgments that dominate environmental considerations makeproblems more protracted. That is, in environmental disputes it is not just thepreferences of actors that are central to a conflict but deeper judgments aboutengagement with what is good or aesthetically valuable in terms of its conservationfor the future generation. *^ The underlying issues in disputes cannot always easilybe resolved before the courts by the application of riarrow and predetermined rules.Alternatively, abstract and open-textured norms challenge the potential legitimacyof the dispute-resolution body were it to decide in favour of particular ethical ormoral positions without appearing to base its judgment on the apparent consensualnature of intemational law and politics.**^

The ICJ, in the Advisory Opinion of the Legality of the Threat or Use ofNuclear Weapons ^^ referred to its own version of what is known as Principle 21of the Stockholm Declaration or Principle 2 of the Rio Declaration. This was notthe first case where the ICJ had dealt with environmental issues,^* but it was the

^^ For instance. Cesare Romano argues, referring tointemational environmental disputes,that: Adjudication willberesorted toonly ifthe law is fairly, but not too, clear or ifthe parties agree to give the dispute settlement body a large leeway oreven toengagein creative law-m aking. : CRom ano, Intema tional Dispute Settlement inD Bodansky, J Bmnne and E Hey (eds). The Oxford Handbook of InternationalEnvironmental Law (2007) 1036, 1041. It is more common for scholars withinintemational law to refer to the indeterminacy ofnorms and extrapolate from that thepotential that might existfor its ideological abuse. In relation to Jus cogens norms, seeA L Paulus, Jus Cogens in a Time ofHegemony and Fragmentation An Attempt ata Re-appraisal (2005) 74(3-4) Nordic Journal of International Law297. On theineffectiveness of intemational courts and tribunals to make good use of broadenvironmental norms, see TStephens, The Limits of Intemational Adjudication inIntemational Environmental Law: Another Perspective on theSouthern Bluefin TunaCase (2004) 19(2) The International Journal of MarineandC oastal Law 177. ^ MKo skenniem i, Peaceful Settlement of Environmental Dispu tes (1991) 60 NordicJournal of International Law 7 3 .For an example of discussions relating to judgment in environmental ethics, seeM Sagoff, Price, Principle, and the Environment (2004) ch 1. For agood discussion ofenvironmental ethics and intemational environmental law, see CStone, Ethics andIntemational Environmental Law in D Bodansky, J Brunne and E Hey (eds). TheOxford Handbook of International Environmental L aw (2007) 29 1. This does not seem to be uniquely an environmental law and politics issue. In the


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best opportunity it had to directly apply environmental principles to a disputebefore it.^ Since its decision in the Nuclear Weap ons Advisory Opinion, the ICJhas dealt with many other cases that in some way concem the environment. 2 pthe Danube Dam Case, the ICJ initsjudg m ent referred to more than just its versionof Principle 21 of the Stockholm Declaration. This is not to suggest thatenvironmental principles have not been brought up by litigants to other casesbefore the ICJ or discussed as part of the dissenting opinions of the judges of theICJ.^^ However, since the Danube Dam Case, we are yet to see the ICJ, in the

Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/UnitedStates of America) [1984] ICJ Rep 246; Nauru Case [1992] ICJ Rep 240; CaseConcerning Maritime Delimitation in the Area Between Greenland and Jan Mayen(Denmark v Norway) [1993] ICJ Rep 38; Requ est for an Exam ination of the Situationin Accordance with Paragraph 63 of the Court s Judgm ent of 20 Decem ber 1974 inthe Nuclear Tests (New Zealand v France) Case [1995] ICJ R ep 288 .^ Cases before the ICJ that have concem ed themselves somewhat indirectly withenvironmental harm include the following that deal with the delimitation of maritimejurisdiction: Case Concerning Maritime Delimitation in the Area Between Greenlandand Jan Mayen (Denmark v Norway) [1993] ICJ Rep 38; Case Concerning the Land

and Maritime Boundary Between Cameroon and Nigeria (Cameroon v Nigeria:Equatorial Guinea Intervening) [2002] ICJ Rep 303; Case Concerning Delimitation ofthe Maritime Boundary in the Gulf of Maine Area (Canada/United States of America)[1984] ICJ Rep 246. On the relevance of these cases for environmental issues, andsustainability in particular, see Gillroy, above n 43, esp 20 -2 2; W eiss, Op ening theDoor to the Environment and to Future Ge neration s , above n 13. Also see thefollowing two cases before the Permanent Court of Intemational Justice whichconcemed intemational watercourses: Case Relating to the Territorial Jurisdiction ofthe International Commission of the River Oder (Czechoslovakia, Denmark, France,Germany, Great Britain, Sweden/Poland) [1929] PCIJ (ser A) No 23; Diversion ofWater from the River Meuse (Netherlands v Belgium) [1937] PCIJ (ser A/B) No 70.Potentially, the ICJ has had opportunities to deal with environmental harm but, for onereason or another, cases before it did not go that far. For instance, in Case ConcerningCertain Phosphate Lands in Nauru (Nauru v Australia) [1992] ICJ Rep 240, the ICJrefused jurisdiction to Nauru but the facts of the case would have necessitated aconsideration of environmental issues and law.

^ See , for instance , Ca.se Concerning the Gabcikovo-Nagymaros Project (Hungary vSlovakia) [1997] ICJ Rep 7; Fisheries Jurisdiction Case (Spain v C anada) [1998] ICJRep 432; Case Concerning Pulp Mills in the River Uruguay (Argentina v Uruguay),(Reques t for the Indication of Provisiona l Mea sures) (2006) 45 ILM 1025, and morerecently Ecuador instituted proceedings against Columbia for the aerial spraying oftoxic herbicides that is allegedly causing damage to people, animals, crops and the


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formal and written deliberations that make up its judgment, use established andcommonly referred to environmental principles.

The fact that this is the case points to the difficulty of directly applyingenvironmental principles in the context of legal dispute settlement. Importantly,although the ICJ might not commonly use environmental principles to exercise itscompulsory power over litigants, this does not indicate whether such principleshave a role or function as part of the social leaming within the Court. The sectionsthat follow aim to examine the variety of different roles and functions thatenvironmental principles have, and that they could play in relation to the work ofthe ICJ.

IV. Post Adjudication Dialogue and NegotiationQuite often, scholarship in intemational law views' the judgments of intemationaldispute-resolution bodies as an end to the relevant social context that gives shape tothe evolution of a particular dispute and its resolution.^^ In many instances,negotiations continue beyond the actual litigation before the intemational disputeresolution body. Given the social nature of interactions during the litigationprocess, post-confiict dialogue can continue in the shadow of the judicial decisionshanded down by the institution dealing with an intemational dispute. ^^ Theinstitutional stmcture that sustains this post-conflict dialogue is the traditionaldiplomatic relationships that states have with each other. It is a collective effortbecause the ICJ's judgment is integral to the way the parties engage with eachother after the relevant judgment has been handed down by the Court. It is in thissense that the ICJ is, notwithstanding the 'social distance', exercising powerindirectly and diffusely. The Court, as discussed in this section, frames socialleaming and the development of common knowledge amongst the actors bydrawing on the open-textured nature of principles to communicate with themduring their post-conflict negotiations.

principles of environmental law especially those relating to what is described inenvironmental law as the Global Commons. (Weeramantry V-P, dissenting at345).An exception in the area of intemational environmental law is C P Rom ano, ThePeaceful Settlement of International Environmental Disputes (2000). In relation to theWorld Trade O rganization, see G Shaffer, 'Powe r, G ovem ance, and the WT O: A


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Bam ett and D uva ll s co nception of institutional pow er, as discussed earlier inthis article, ^ requires that the institution be independent of the actors w ho operatewithin them. Decisions of the ICJ establish that independence by virtue of thejudgment they render for and against the parties. That is, the post-conflictnegotiations are conducted in the shadow of judgment that has established certainnormative implications for those discussions and created the necessaryindependence of the actors from each other. A resort to post-conflict negotiationsconducted in the shadow of a judg m ent can give parties further reason to n egotiatethe real differences between them in terms of the ethical and aesthetic values thatare at issue. Bamett and Finnemore have, for instance, argued that intemationalorganisations can frame issues in particular ways so that desired choices seemparticularly c om pelling . ^^ That is, intemational organisations can structuresituations and social understandings in ways that channel behaviour toward someoutcomes rather than others .^^ Intem ational organisations can engage in practiceswhereby they classify or invent social categories wh ich can then constitute the wayactors deal with the social world around them.^^ Adler and Bemstein, using asimilar idea, argue that ep istem e or intersubjectivity can be mobilised byinstitutions as a resource to shape what actors take to be valid knowledge orunderstanding of their social reality.^

Environmental principles can be mobilised by the ICJ to frame and stmcturepost-conflict dialogue. The power that the ICJ has is further promoted by givingcontext to negotiations after the actual litigation has flnished. What the litigatingparties take as useful or valid for post-conflict negotiations is an expression of thispower, which would not be mobilised as easily without environmental principles.The importance of this point is that the litigating parties might not ordinarily useenvironmental principles to frame and stmcture their negotiations arising from aparticular dispute. Ho wev er, their interactions w ith each other, as mediated throughthe ICJ, give shape to their preferences in a way which might make the use ofprinciples seem natural or the best way to continue to deal with the problemsbetween them. It is in this sense that environmental principles can frame andstmcture ongoing discussions without giving the impression that participants arecompelled to follow particular mies or narrow formulations of what is right orwrong to do. That is, the exercise of power using environmental principles isindirect because its effects are not going to be caused by the Court but rather willdepend on how the parties interpret their positions in the light of the environmen talprinciples that gives meaning to how they view their circumstances.


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In doing this, the courts and tribunals interplay with environmental principles toharness their own institutional power in a 'responsive' or 'reflexive' way. The ideathat intemationai adjudication might facilitate litigants to resolve their disputes, asopposed to ruling on all aspects of their ca se, is not new. ^^ Environmentalprinciples give courts and tribunals a chance to facilitate dialogue in a way that ispotentially responsive to the needs of each party. In this way, they are central to theexercise of power by courts and tribunals by virtue of their abstraction and thecommunicative potential that comes with those qualities. However, the power thatthe Court exercises is dependent on the knowledge that disputing states have abouttheir situation from the decision of the case they are involved with. Moreimportantly, the Court can be seen as creating opportunities for the parties toprogressively realise for themselves the implications of environmental principles inthe contex t of their disputes . ^ In this sense , the environ mental principles frame astate's ongoing self-realisation of its interests in the light of the dispute in which itis engaged. This is obviously a different kind of an argument to the power the ICJmight have in terms of principles functioning as a justiciable standard of review ofthe conduct of parties.

The idea that the ICJ engages with or relies on post-adjudicative negotiations toalleviate the reasons for the dispute arising in the first place finds expression in anumber of its decisions. For instance, in the 1984 case on the Delimitation of theMaritime Boundary in the Gulf of Maine Area (Canada/United States ofAmerica),^^ the ICJ had been asked by the United States to consider the ecologicalconditions of the marine ecosystem in the process of delimiting the Gulf of Maineas between it and Canada. ^ The proposal was aimed at ensuring that one of theparties to the dispute would have the entire region to maintain the integrity of theecosystem for straddling stocks of fish. The particular stock was at that time beingoverfished, and it was becoming endangered as a species. The ICJ decided the caseby drawing the boundaries between the two countries across the natural ecosystemand instead indicated that the United States and Canada should cooperate to takecare of the environmental challenges caused by the Court's decision.^^ Gillroyargues that the ICJ refused the sustainability argument put to it and instead opted'for the more established sovereignty principle of equ ity to create the boun dary.

In the context of theSouthern Bluefin T una Cases, (New Zealand v Japan; Australia vJapan) (Provisional Measures) (1999) 117 ILR 148 and Southern Bluefin Tuna Case(Australia New Zealand v Japan ) (Jurisdiction and Adm issibility) (2000) 119 ILR508, see D Johnston, 'Fishery Diplomacy and Seience and the Judicial Func tion'


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thus bifurcating the aqua-ecosystem between the two states.'^^ Although in thiscase the ICJ did not draw on an environmental principle to frame its post-conflictnegotiations, it explicitly relied on the fact that the United States and Canada wouldengage with each other after the litigation to ensure that the ecosystem would notget harmed as a result ofthedecision by theCourt

In the Fisheries Jurisdiction Case Germ any v Iceland),^^ the ICJ had toconsider whether Iceland could have legally extended its fisheries zone to 50nautical miles and excluded flshing vessels from it. It decided that Iceland couldnot have extended its fisheries zone beyond its territorial sea but that it hadpreferential rights over fisheries resources beyond it.'' The ICJ also emph asisedconservation measures in several statements, one of which is particularly importantfor this discussion. This is because of the way the Court connects to futureinteractions between the parties. It stated that:

both Parties have the obligation to keep under review the fishery resources in thedisputed waters and to examine together, in the light of scientific and other availableinformation, the measures required for the conservation and development, andequitable exploitation, of those resources, taking into account any intemationalagreement in force between them.^'In this paragraph, the ICJ conceptually m aps or frames what the parties need for

their interactions with each other beyond the dispute in that case. It situates thedecision to grant rights to Iceland within the language of having to negotiate inrelation to conservation oftheresources.a) TheDanube Dam Case post-adjudication and environmentaiprinciplesThe argument noted above will now be further illustrated through the work of theICJ in the Danube Dam Case.This is because it is the most recent example of thiskind of interaction between the ICJ and litigants after the formal dispute-settlementprocess has finished and also because the Court uses the language of environmentalnorms and principles to guide it. Also, Hungary and Slovakia, in the 1993 SpecialAgreement Between the Republic of Hungary and the Slovak Republic giving theICJ jurisdiction to hear the case, had agreed that the Court could also prescribewh at the parties should d o post-adjudica tion.''2 jj^gy { j already agreed that they

^ Gillroy, ab ov en 43 , 21 .^^ Weiss quotes the Court as telling the parties that the 'tradition of friendly and fruitfulcooperation' between them would be used productively to prevent harm and ensure the


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wou ld further negotiate with each other once the C ourt had issued its ruling. As aresult, the ICJ judgm ent not only declared w hat the rights oftheparties were in thatcase, but also prescribed what they should do in their post-adjudicationnegotiations.In the Danube Dam Case, Hungary had argued that, because of 'newrequirements of intemational law for the protection of the environment', it was'precluded' from performing the 1977 Treaty Conceming the Construction andOperation of the Gab cikovo-N agym aros System of Locks '* withCzechoslovakia.^^ The 1997 Treaty had envisaged, amongst other things, that twolocks would be constmcted, one at Gabcikovo (now Slovakia) and the other inNagymaros (in Hungary). A dam would also be built at Dunakiliti, which is in theHungarian portion of the Danube. These projects would develop the energy andnavigational needs of both countries as well as protect particular parts of thecountries from flooding. When Hungary pulled out of the project, one of itsarguments related to the belief that further participation in the project would not beconsistent with Hungary's obligations to protect the environment, water quality andfisheries of the Danube. Hungary had argued that the project would be inconsistentwith its intemational obligation to prevent environmental harm and the SlovakRepublics' obligations to avoid serious environmental harm.^^

Aroun d 199 1, Hun gary show ed little interest in working further on the project.Czechoslovakia (as it was in 1991) started constmcting an overflow dam inCunovo and later diverted the Danube through it. the effect of this diversion onriparian areas of the Danube in Hungary was considerable. This was in addition toreducing the total quantity of water that flowed through the Hungarian portion ofthe Danube. Before the ICJ, Hungary had argued that the diversion of the Danubeand the damage it had done were, amongst other matters, a breach of intemational

signature 7 April 1993, (1993) 32 ILM 1293 (entered into force 28 June 1993).See ibid art 5.Opened for signature 16 September 1977, (1993) 32 ILM 1247 (entered into force 30June 1978) ('1977 Tre aty'). iCase Concerning the Gabcikovo-Nagyma ros Project Hungary/Slovakia) [1997] ICJRep 7, [111]. This description is not meant to be comprehensive, given that thearguments made in these sections do not need certain details from the case. For anexcellent description of the facts and the processes leading to the judgment by the ICJ,see Aaron Schwabach, International Environmental Disputes: A Reference Handbook(2005), esp 5 1- 59 . For discussions of the legal issues, see A A-Khavari and


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environmental laws.^^ The specic points raised related, amongst other matters, tothe obligation not to cause damage to the environment beyond ones border, and theneed to give prior notification to neighbouring states of activities that might causesigniflcant damage to their environment.^^ The ICJ rejected both these argumentsrelating to the termination of the 1977 Treaty by pointing out that articles 15, 19and 20 allowed for these new and emerging concems relating to the environment tobe integrated into the bilateral contractual relationship. ^ The Court in tum arguedthat emerging environmental norms actually enhanced the relevance of articles 15,19 and 20 of that treaty for the parties as they negotiated their Joint ContractualPlan to implement the agreement.^ The Court said that new ly developed norm s ofenvironmen tal law were relevant to the ongoing discussions becau se they coulduse articles of the 1977 Treaty to agree on ways to integrate them into theirnegotiations.

The Court remained vague and ambiguous about what these new ly developednorms of environmental law w ere.^ In the Danube Dam Case, a reference to thepleadings of Hungary, which had more strenuously developed its environmentalarguments, makes it clear that it drew heavily from environmental principles indeveloping its arguments. In particular, the precautionary principle as anexpression of the more general principle of preventing harm to the environmentgave shape to H un ga ry s argum ents about terminating its obligations in relation tothe 1977 Treaty.^ ^ relation to the diversion of the Danube to operate theGabcikovo power plant, Hungary had argued, amongst other things, that this was inbreach of Czecho slovakia s (now Slovakia) obligation not to cause damag e to theenvironmen t beyond its sovereign b orders. ^ These argum ents clearly reflect thosearising out of Principle 21 of the Stockholm Declaration and Principle 2 of the RioDeclaration. Additionally, Hungary also argued that Slovakia had an obligation togive it prior notification and to consult with it in relation to the construction of

^^ For Hun ga ry s pleading s before the Cou rt in relation to its allegations thatCzechoslovakia had illegally diverted the D anube, see ibid 21 9-3 3^^ Ibid 198 -203.^ Case Concerning the Gabcikovo-Nagym aros Project (Hungary/Slovakia) [1997] ICJRep 7, [112].0 Ibid.^ In the Nuclear Tests Case (New Zealand v France) (Merits) (1995) ICJ Rep 288, atpara 64 the ICJ had stated that its order was with out prejudice to the obligations of

states to respect and proteet the natural environment, obligations to which both NewZealand and France h ave in the present instance reaffirmed their co m m itm ent .


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ower Environmental Principles and the International ourtof Justice 107Variant C and diversion of the Danube. This argument was based on, for example.Principle 19 of the Rio Declaration.^^

What is most striking when one compares the arguments of Hungary with thefmal prescriptive judgment of the ICJ is the similarities in the kind ofenvironmen tal principles it ended up referring to in its judgm ent compared withthose Hungary used in its pleadings before the Court itself First, it should be notedthat the ability of the Court to make such a recotnmendation was only possiblebecause articles 15, 19 and 20 were very generally worded to allow Hungary andSlovakia, in the process of drafting their future Joint Contractual Plans, to negotiatewith each other in relation to the quality of the water of the Danube (art 15), theprotection of nature (art 19) and fisheries (art 20). For instance, article 15 providedthat the: Co ntracting P arties shall ensure, by the means specified in the jointcontractual plan, that the quality of the water in the Danube is not impaired as aresult ofthe constmction and operation oftheSystem of L ocks. ^^

This meant that, in the context of doing what the 1977 Treaty between themprovided, Hungary and Slovakia had to think about how new norms couldprogressively be applied to their particular situation. In this sense, the Co urt sprescriptions were contextualised within the relationship that Hungary andSlovakia had already developed. Therefore, H un ga ry s reference to environm entalprinciples must naturally form the basis of any argument as to wha t those newno rm s must be, and in particular the way it must have shaped the manner in whichthe Court phrased its prescriptive formulations for Hungary and Slovakia in theirpost-adjudicative negotiations. The C ou rt s judgm ent in this respect provided thatit:

is mindful that, in the field of environmental protection, vigilance and prevention arerequired on account oftheoften irreversible character ofdamageto the environmentand of the limitations inherent in the very mechanism of reparation of this type ofdamage. ^This reference to the precautionary principle was further supported and built onwhen the Court also referred to sustainable development as a way forward for theparties to reco ncile econom ic developmen t with protection of the environm ent .^^One might argue that the exercise of institutional power to establish theprecautionary principle and sustainable development (for instance) as acommunicative norm in this particular context was paying lip service to the issue.How ever, from the Co urt s pe rspective, it had found fault in the condu ct of bothparties in ways that encouraged them to further negotiate. It had also found that


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108 Australian Year Book of Intemationai Law Vol 8

Slovakia had breached the 1979 Treaty and the law on watercourses by divertingthe Danube into a variant C of the dam system that it had constructed to avoideconomic loss. The application of the more determinate and closed rules to the caseallowed the Court to engage both parties in a way that would have no impact on, orwould maintain its own legitimacy as, a dispute-resolution body .

Since the ICJ s judg ment, Slovakia and Hun gary have not yet reached anagreement on implementation of the ruling. The two countries were meant tohave concluded an agreement in 2006 but this has not happened as yet. The effortmade to move forward cooperatively reveals that the work of the ICJ was decisivein giving direction to the environmental concems raised during the case. In 2001, adraft agreement between Hungary and Slovakia describing how they wouldproceed in their negotiations identified sustainable development and the principleof precaution as two guiding norms. Additionally, minutes of 2006 meetings heldbetween the two states reveal that they adopted a number of intemationaiagreements as between them to give further guidance in terms of theirnegotiations.^* This is important given that Slovakia, during the litigation beforethe ICJ, had emphasised the social and economic impacts of the diversion of theDanube rather than environmental c onc em s.^

What is instmc tive about this discussion is that the power of the Court over thelitigants in the post-adjudication phase was framed by emphasising that their 1977Treaty could not properly be implemented in the future without reference toenvironmental norms. This was so even though the Court did not useenvironmental principles to declare whether or not the parties had acted properly inrelation to the situation before them. This exercise of diffuse power over post-

See United Nation s Depa rtment for Econom ic and Social Affairs, Division forSustainable Development, International Rivers and Lakes Newsletter No 43 (2005) 3 at15 May 2009; B eata Balogov, Slovak ia Again Discussing C ompletion ofGabcikovo-Nagymaros Slovak Spectator (4 January 2006) at 15 March 2009.^^ Preamble to the Draft Agreement Coneluded between the Repu blic of Hungary and theSlovak Republic for the Purpose of Giving Effect to the Judgment of the IntemationaiCourt of Justice of 25 September 1997 at 15 May 2009.^ Minutes of the M eeting of the W orking Group on Legal M atters of the Deleg ations ofthe Government of the Slovak Republic and the Government of the Republic ofHungary on the Implementation of tiie Judgement of the Intemationai Court of Justice


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ower Environmental Principles and the International ourtof Justice 109adjudicative negotiations was only possible because the Court defined the interestsof parties in particular ways during the litigation. Additionally, were it not for theenvironmental principles, the Court might not have placed such emphasis on thedynamic nature of articles 15, 19 and 20 of the 1977 Treaty. The meaning of suchbroad provisions within the 1977 Treaty was potentially establishedintersubjectively by the ICJ's directive that they needed to be understood in thecontext of other environmental norms.

The open-textured nature of the norms allowed for the exercise of institutionalpower by the ICJ in ways that more determine and defined rules would not havebeen able to achieve. This is because of the impact this kind of decision wouldhave on the Court's legitimacy and presence as an intemational institution createdto do what it was precisely seen as delegating. However, the open-textured natureof the environmental principles contains a sufficient degree of intersubjectivity forthe Court to use the contours of the norms for the court to defer making policydecisions for the parties, and instead create opportunities for them to give directionto how they will commonly identify with each other. In a way, the ICJ mightindirectly be acknowledging the fact that the social or real interests of the partiesmight be resolved by opening up the legal domain in a way that allows for this tohappen. 2

V Productive Power and Environmental Principles in theDanube Dam ase

Gillroy has examined whether the principle of sustainable development is used bycourts and tribunals as an adjudicatory norm^^ that is, not as a norm capable ofbeing used directly by parties to generate propositions about their position inrelation to the other litigants, but by the Court to resolve intemational disputes.This is partly consistent with the argument that Lowe made in a powerftiUy arguedpiece discussing the normative potential of sustainable development in orderingprinciples and rules in intemational dispute reso lution. ^^ A different line ofscholarship also argues that environmental principles such as sustainabledeve lopm ent facilitate intra-disciplinary integration amongst norm s. ^^ Thisargument, put forward initially by Boyle, views the role of environmentalprinciples as reformulating existing bodies of law by integrating sustainabledevelopment into the development of other bodies of law such as for instance.


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fisheries law or water law.^ An altemative way to phrase this approach is to arguethat the concept or idea of sustainable development can penetrate olderterminology , especially when it is being applied some time in the future.^^ Thesevarious discussions appear to draw from the potential productive power of the ideaof sustainable development in shaping the way courts, tribunals and litigants beforethem constitute the world to which they are seeking to give meaning and thereconciliation of different pulls on their preferences.^^ Contrary to Lowe, Gillroy ssustained and detailed examination of the decisions of the various intemationalcourts and tribunals shows that sustainable development is not an adjudicatorynorm, even though he argues that it has a status as a principle of intemationallaw.99

Sustainable development, however, is inherently linked to the idea of protectingthe future generation, though it does not specify whether anything in particularmust be sustained for them. Sustainability, in other words, is not a particularly highstandard to meet in terms of the minimum that is required to protect the interest ofthe future generation. As an abbreviated and abstract environmental principle, ipoints to varying conceptions of how society and its relationship to nature can besocially constituted by different actors and groups. For instance, in a dispute abouprotecting an entire ecosystem, some might argue that it is necessary to maintain its

Ibid (emphasis in original). See also Intemational LawAssociation, Report of thSeventy-First ConferenceBerlin (2004) 608-09.A Boyle, Relationship Between Intemational Environmental Law and Other Branchesof Intemational Law in DBodansky, J Brunne and EHey (eds). The OxfordHandbook of International Environmental Law 2007) 125, 131.Adler and Bem stein have used the word epistem es to describe the discourses thahave produced howactors use to view the world: Adler and Bernstein, above n 36295.The idea of episteme in thecontext of the work of the ICJ has been raised insection 4. Episteme is the background intersubjective know ledge collectiveunderstandings and discourses that adopt the form of human dispositions andpractices that human beings use to make sense of theworld : Adler and Bemsteinabove n 36, 295. This background know ledge, they argue, produces institutions inparticular ways.The application ofthis idea to intemational courts and tribunals is nonew.For instance, Sandholtz and Sweet, in discussing the World Trade Organisation(WTO) dispute-settlement regime, have argued that, amongst other norms, themosfavoured nation principles generated a sophisticated, relatively autonomous domainsof legal discourse, replete with their own stable or argumentation framew orks W Sandholtz and A SSweet, Law , Politics,and Intemational Go vem ance in CReusSmit (ed).The Politics o f International L aw (2004) 238, 254 (footnotes omitted). Theypoint out at 254 that, by the 1980s, an understanding of the most favoured nation


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Pow er, Environmen tal Principles an d the International Court of Justice 111

current condition because it would otherwise deprive the future generation of cleanair. Others might equally argue that sustainability requires that the area also bepreserved because it has aesthetic benefits as well.'*'^ A useful way of exploringwhether a tribunal or court itself as an institution, is constructed by the discourseor episteme to which sustainable development or other environmental principlespoint is to examine its reaction to issues before it in the context of whether itchanges established ideas or socially learns how to respond differently toqualitative tests in legal propositions before it. It is through the actual socialpractises ofacourt like the ICJ that we can understand the meaning and function ofenvironmental principles, and potentially their ability to produce what the Courtdoes in context.

In the following discussion in sections 5(a) and 5(b), the roles of theprecautionary principle and sustainable development respectively are analysed inthe context of the Danube Dam Case. The question examined in each section iswhether the respective environmental principles produced how the Courtapproached the legal issues before it. a) Ecological necessity and the precautionary principleIn the Danube Dam Case, the ICJ was asked by Hungary to consider whether itsabandonment of the 1977 Treaty between itself and Czechoslovakia (at that time)was necessary because of the imminent peril to the ecological condition of theDanube, which constituted an essential interest of Hu ngary. This argumen t wasbased on article 33 of the Intemational Law Commission's (ILC) Draft Articles onState Responsibility, '^ which the ICJ recognised as reflecting customary law.'^^Article33(1 )(a) gives a state the ability to avoid its intemational law obligations ifwhat it did 'was the only means of safeguarding' an 'essential interest' it had'against a grave and imminent peril'.' '* :

^^ See Sagoff above n 47, esp ch 2 for a discussion of sustainability and varyingconceptions of it in the light of philosophical and ethical approaches to the protectingthe environm ent. ,' ' Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJRep 7, [49]-[58]. See also Memorial of the Republic of Hungary in the CaseConcerning the Gabcikovo-Nagymaros Project (Hungary v Slovakia) vol 1, aboven 76, 28 3- 98 . On this issue and how it relates to the precautionary principle, seeDaniel Dobos, 'The Necessity of Precaution: The Future of Ecological Necessity andthe Precautionary Principle' (2001) 17 Fordham E nvironmental Law Journal 375.


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112 Australian Year Book of International Law ol28

For the purpose of this discussion, the key portion of Hungary's argumentwhich caused difficulties was whether the damage caused by the diversion of theDanube by Slovakia was perilous and imminent. ^ j^jg Court, however, exam inedwhether the abandonment of the 1977 Treaty, as a whole, by Hungary could havebeen justified on the basis that the imminent peril of the entire project (and not justthe Variant C that Slovakia had constmcted in breach of the 1977 Treaty)necessitated stopping work on the project. The Court therefore sought to interpretwhether the potential harm inherent in the entire project established by the 1977Treaty was imminent and perilous.

The Court's interpretation of the terms 'imminent' and 'peril ' in article 33(l)(a)of the Draft Articles on State Responsibility, and its application to the facts of thecase, highlight how the precautionary principle in this situation failed to frame itsapproach. The C ourt said the following in relation to these words:

The word 'peril' certainly evokes the idea of 'risk'; that is precisely whatdistinguishes 'peril' from material damage. But a state of necessity could not existwithout a 'peril' duly established at the relevant point in time; the mereapprehension ofapossible 'p eril' could not suffice in that respect. It could moreoverhardly be otherwise, when the 'peril' constituting the state of necessity has at thesame time to be 'grave' and 'imminent'. 'Imminence' is synonymous with'immediacy' or 'proximity' and goes far beyond the concept of 'possibility'.This view of article 33(l)(a) presumes that a peril must be unavoidable at thetime it is said to eventuate if a state is allowed to evoke the state of necessityargument.' ^ The Court went on to find that the perils claimed by Hungary were'uncertain' in 1989 when Hungary took steps to terminate its obligations under the1977 Treaty. '^ It appears to have been looking for scientific 'certainty' in termsof whether there was likely to be some kind of peril for the essential interests of thestate of Hungary. The Court was certainly not bothered by the argument that thepotential peril, if ascertained with certainty, might be in the future because it stated

that:a 'peril' appearing in the long term might be held to be 'imminent' as soon as it isestablished, at the relevant point in time, that the realization of that peril, howeverfar offitmight be, is not thereby any less certain andinevitable. '^

The key reason for rejecting Hungary's argument therefore appears to have been itsassessment of the 'uncertainty' of whether the project was sufficiently perilous towarrant terminating it.


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As stated above, tbe Court did acknowledge tbat tbe term 'peril' evoked tbeidea tbat tbe material damage bad not actually occurred, but tbat there was a 'risk'it migbt bappen. Tbe ILC in its commentary on tbe Draft Articles on StateResponsibility does not appear to bave said anything about tbe level of scientificcertainty required to assess the nature of a 'peril'. *' Therefore, the Court in thiscase had the potential to determine for itself whether it would make a policy choiceto adopt the idea that the reference to the level of risk in the term 'peril' had to beestablished with certainty or could be left unce rtain. ' It has been argued that theprecautionary principle refers to 'uncertain risk' rather than requiring states to takepreventative action when risk has been established with certainty. ^ Hungary, inits written memorial to the ICJ in the Danube Dam Case, referred to theprecautionary principle as an expression of the concept of prevention inintemationai environmental law. In this way, it also highlighted the ideas of theuncertainty ofrisk ^

The difference between certain and uncertain risk is in the 'link of cause andeffect between an event that might occur and the damage anticipated as ar e s u l t' . ' ' W hat is risky about the certainty of the event occurring or theunpredictability of it is '[o]nly the length oftim that will elapse'. ^ In the contextof the Danube Dam Case, the I C J argued that 'dan gers ascribed to the upstreamreservoir were mostly of a long-term nature and, above all, that they remaineduncertain'. ^ That is, the Court was more concerned in this case with establishingthe certainty of harm than worrying about the risk of whether it would occur or notat some time in the future.Clearly, the Court was not dismissing the need to prevent environmental harm. Atone point, it said that:

' ^ On this, see also Dobos, above n 101. ' On this important distinction between certain and uncertain risk, see M van Asselt andE Vos, 'The Precautionary Principle and the Uncertainty P aradox ' (2006)9{4 Journalof Risk Research 313. On the difference it makes in the context of legal disputes, seeN de Sadeleer, Environmental Principles; From Political Slogans to Legal Rules(2005); N de Sadeleer, 'The Effect of Uncertainty on the Threshold Levels to whichthe Precautionary Principle Appea rs to be Subjeet' in M Sheridan and L Lavrysen(eds). Environmental Law Principles in Practice (2002) 32. See also H Now otny,P Scott and M Gibbons,Re-Thinking Science: Knowledge and the Public in an Age of


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114 Australian Year Book of International Law ol2 8

In the field of environmental protection, vigilance and prevention are required onaccount of the often irreversible character of damage to the environment and of thelimitations inherent in the very mechanism of reparation of this type of dam age. ^Nonetheless, it did adopt an interpretation of 'imminent' and 'peril' whicfavoured prevention as opposed to precaution. It seems to have ignored the debate

and discussions relating to 'uncertainty'. ^ This suggests that the precautionaryprinciple has yet to have a productive effect on framing the power the Court wilexercise in determining issues before it.

In appears from this discussion that the Court was being conservative about itown role in the resolution of disputes involving claims of uncertain risk to thenvironment. Its interpretation of art 33 1 ) a) of the Draft Articles on StaResponsibility as requiring certain risk in relation to establishing a 'peril' meanthat the Court was also restricting any opportunities states might have to abuse thpotential of this provision, which it claimed is now part of customary intemationalaw. It presumes the capacity of a state to be able to prove with certainty whetheharm will occur or not in making out a case for ecological necessity. It is alsoarguable that the Court has changed the potential nature of the issues that iturlitigants might raise before it where they might involve claims based on thprecautionary principle.b) Equitable utilisation and sustainable deveiopm entIn 1997, Hungary, in its submission to the ICJ in the Danube Dam Case, arguethat Variant C took away between 40 and 43 per cent of the 50 per cent of thewaters of the Danube that would otherwise be available for its use. ' '^ Slovakia haargued, however, that Variant C was a 'justified countermeasure to Hungary'illegal ac ts '.' 2 The ICJ responded to Slovak ia's argument by declaring that it hadeprived Hungary of its right to equitably use the Danube as a natural resourceThe Court also noted that one of the legal effects of its decision was that, ininterpreting articles 15, 19 and 20 of the 1977 Treaty, it had to 'look afresh at theffects on the environment of the operation of the Gabcikovo power plant' usin'new norms' and 'new standards'. '2' This discussion looks more closely at thCourt's declaration relating to the lack of proportionality in Slovakia'countermeasures against Hungary.

^ Ibid [140].For a good summary discussion of uncertainty and risk in relation to the use oprecautionary principle in intemationa l law, see A Trouw borst, Precautionary Right


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Hungary had argued that the diversion had deprived it of its right to 50 per centof the flow of the Danube. Slovakia had argued, however, that Variant C was infact the optimal way to use the Danube given that the relevant circumstances werebrought about by Hungary's intentions to terminate the Treaty.'^^ Importantly,Slovakia drew on article 6 of the 1991 ILC draft articles on the Law of Non-Navigational Uses of Intemational Watercourses '^^ to argue that the relevantcriteria for determining what was equitable and reasonable included those relatingto the social and economic impacts of the diversion rather than the environmentalcriteria.'2'' This was in total contrast to Hungary's arguments, which relied onenvironmental considerations relating to the equitable and reasonable use of theDanube as a resource.

The portion of the Court's judgment in the Danube Dam Case which isdiscussed in this section is extracted here to facilitate a closer reading of it. TheCourt wrote:

In the view of the Court, an important consideration is that the effects of acountermeasure mustbe commensurate with theinjury suffered, taking accountofthe rightsinquestion.In 1929, the Permanent Court of Intemational Justice, with regard to

navigationon theRiver Oder, statedasfollows:

Memorial of the Slovak Republic in theCase Concerning the Gabcikovo-NagymarosProject Hungary v Slovakia) vol 1 (2 May 1994), [302]-[304] at 15 May2009.Draft Articleon the Law of the Non-Navigational Usesof Intemational Watercourses(1991) 2(2) Yearbook of the International Law Commission 66 ('1991 ILC draftarticles on watercourses'). These Draft articles were amended in 1994 andagainin1997 before the UNG A approved them by 103 votes (with three against and 27abstentions)as theUnited N ations C onventionon the Law ofNon-N avigational Usesof Intemational Watercourses, openedforsignature 21May1997 (1997)36 ILM 700(not in force) ('Watercourses Convention'). On the history and analysis of theagreement,see SMcCaffrey and RRosenstock, 'Th Intemational Law Co m miss ion'sDraft Articleson Intemational Watercourses:AnOverviewandCom mentary' (1996)5(2) Review of European Community and International Environmental Law89;S McCaffrey, The Law of International Wa tercourses (2 '' ed, 2007) 217. Onintemational watercourses more generally, see PW outers (ed).International Wa terLaw: Selected Writings of Professor Charles B Bourne (1997); EBen venisti,'Collective Action in the Utilization of Shared Freshwater: The Challenges of


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[the] community of interest in a navigable river becomes the basis of a commonlegal right, the essential features of which are the perfect equality of all riparianStates in the user of the whole course of the river and the exclusion of anypreferential privilege of any one riparian State in relation to the oth ers ...

Modem development of intemational law has strengthened this principle fornon-navigational uses of intemational watercourses as well, as evidenced by theadoption of the Convention of 21 May 1997 on the Law of the Non-NavigationalUses of Intemational Watercourses by the United Nations General Assembly.

The Court considers that Czechoslovakia, by unilaterally assuming control of ashared resource, and thereby depriving Hungary of its right to an equitable andreasonable share of the natural resources of the Danube with the continuingeffects of the diversion of these waters on the ecology of the riparian area of theSzigetkoz - failed to respect the proportionality whieh is required by intemationallaw.125In this part of its judgment, the Court endorses the idea, initially developed intheC ase Relating to the T erritorial Jurisdiction of the International Com mission o

the River Oder,^^^ that there is a com mon legal right to a com munity of interesin a navigable rive r . ^^ It claimed that this right had been strengthened through[m ]od em developments of it in intemational law . ^^ Slovakia could not haveunilaterally assumed control of a shared resource namely the Danube andas a result deprived Hu nga ry of its right to an equitable and reasonable share ofthe natural resources of the Da nu be . ^ Earlier in its judgm ent, the C ourt had alsoconfirmed the importance and relevance of the idea of equitable and rea sonable usewhen it declared that Hungary had not forfeited its basic right to an equitable andreasonable sharing of the resources of an intemational watercourse just because ihad violated its terms by not continuing to implement the m . ^^ In this sense, theCourt simply confirmed the presence ofa right to an equitable and reason able shareof a natural resource, and acknowledged the rights states had to not have iunilaterally taken away from them by a state upstream to them.In highlighting the presence of this right to equitably and reasonably use anintemational watercourse, the Court referred to the 1997 WatercoursesConv ention. -^ How ever, it did not make explicit reference to article 5, whichactually codifies the idea upon w hich it had dra wn . ^ In relation to the C ou rt s

2^ Case Concerning the Gabcikovo-Nagymaros Project Hungary/Slovakia) [1997] ICJRep 7, [85].126 [1929] p c iJ (ser A) No 2 3, [27].


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pronouncement of the disproportionate nature of the countermeasure taken bySlovakia, Higgins has written that the:

Court must be taken to have linked the unilateral control to its finding that Hungarywas deprived of an equitable and reasonable share of the natural resource. And itappears to have determined that such a deprivation cannot be proportionate to anyprior illegality relating to the watercourse (and not just that the deprivation caused inthe instant case was disproportionate to the prior illegalities of suspension andabandonment). '^^What is interesting about this observation is that there is nothing wrong with astate, on its own, deciding how to use an intemational river. This is so, as long asits decision does not impact on the potential of other states to enjoy equitable use of

the same intemational w aterco urse. ' ^ W hat is therefore at issue , and whichHiggins does not really get to, is what Hungary was in fact deprived ofthat was sosignificant to have made the unilateral decision of Slovakia so meaningful for theCourt. It is therefore clear that the group of judg es deciding the case must have hadsomething else at the back of their minds when making this rather difficult and yetcrucial pronouncement in terms of the rights and interests of Slovakia in particular.That is, it could not have been the concem that Slovakia had decided unilaterally totake away Hungary's right to a natural resource. McCaffrey also confirms thevagueness of the ICJ's approach when he voices his interest in the way the Courtrejected Slovakia's claim to having taken a proportionate countermeasure. He haswritten that 'it is remarkable that the Court seemed to believe it was obvious thatSlovakia's diversion was per se a disproportionate response to Hungary'sinternationally wrongil act'.'^^ McCaffrey is suggesting that the Court must haveweighed Slovakia's actions in contrast to the disadvantages for Hungary.This is important because it has been argued that either actual or potential trans-frontier harm is not in itself problematic unless a state can show that, because of

this, it has lost its right to an equitable and reasonable utilisation of theintemational watercou rse. '^^ The C ourt certainly voiced its concem over theimpact of Variant C on Hungary. It pointed out that the diversion of the Danubehad 'continuing effects' on the ecology of the riparian area of the Szigetkoz.'^^

reference to the 1991 ILC draft Articles on Watercourses, above n 123, instead of themuch later ones: Memorial of the Slovak Republic in the Case Concerning theGabcikovo-Nagymaros Project Hungary v Slovakia) vol 1, above n 122, 302. The ICJdid in fact refer to article 5(2) of the 1977 Watercourses Convention in a later part ofits judgm ent: Case Concerning the Gabcikovo-Nagymaros Project Hungary/Slovakia)


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Nevertheless, the Court avoided evoking the idea that no har m mu st com e to anywatercourse state and thereby gave priority to the idea of equitable and reasonableutilisation. ^^ This is confirmed by the fact that the ICJ did not refer to article 7 othe 1997 Watercourses Convention which is also important in the context of thisdiscussion. Article 7 provides that w aterco urse States shall ... take all approp riatemeasures to prevent the causing of significant harm to other watercourse sta tes .

It is important to look to article 5(1) of the 1997 Watercourses Convention tounderstand this puzzling but crucial part of the judg m ent of the Cou rt, ^^ Iprovides that:Watercourse States shall in their respective territories utilize an intemationaiwatercourse in an equitable and reasonable manner. In particular, an intemationaiwatercourse shall be used and developed by watercourse States with a view toattaining optimal and sustainable utilization thereof and benefits therefrom, takinginto account the interests of the watercourse States coneemed, consistent withadequate protection ofthewatercourse. ^ What is important about article 5(1) is that, in its draft form namely the 1991and 1994 ILC draft articles on watercourses there was no reference to the termsus taina ble in the context of what equitable and reasonable utilisation might meanto states. The Preamble to the 1997 Watercourses Convention also identifies

sustainable utilisation as an important goal to prom ote for the present and futuregen erations and which was not present in the 1991 and 1994 version of the sameinstrument. It must be noted, however, that the 1997 Watercourses Convention hadbeen ado pted on 21 M ay 1997 by the G eneral Assem bly of the United N ations(UNGA) (four months before the case was heard by the Court), meaning that itsstatus as customary law was still debatable and the instrument had certainly notcome into force as a treaty at the time the ICJ was referring to it. Despite thesecomments, the Convention did reflect around 20 years of work by the ILC. *'What stands out in article 5(1) is the idea that, to equitably and reasonably usean intemationai watercourse, a state must take the sustainable and optimal use ofthe natural resource into account. Article 5(1) does not say that this has to be anexplicit part of the consideration, but a meaningful assessment of equitable usecannot ignore sustainability. Some have argued that the concept of equitable andreasonable use of a watercourse is synonymous with the idea of using itsustainably. ^^ ^Impo rtantly, considerations of sustainability potentially add newelements to what is equitable and reasonable in the sense that they bring to the

forefront the needs of the iture generation. That is, one big difference between


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ower Environmental Principles and the International ourtof Justice 119equitable and sustainable utilisation is the presence of the future generation inproducing the C ou rt s pow er ov er the litigation. In fact, before the 1997Watercourses Convention was approved by the UNGA, writers had argued that theconcept of equitable utilisation and the criteria for determining it did not value thefuture generation prope rly. *^ The reference to the future generation in thePreamble of the 1997 Watercourses Convention also confirms this new priority ofthe agreemen t as highlighted in article 5(1).

From this, one might conclude that the unsustairiability of Variant C lies in theimpact it wou ld have had on the future generation because ofthe effects not only ofthe water quality of the river but the riparian areas of Szigetkoz which the Courtitself highlighted in its judgm ent. As a result, th unilateral control of the riveris significant in terms of its implications for the future generation. This conclusion,though not obvious on an immediate reading of paragraph [85] of the judgment, isconfirmed implicitly in paragraph [140] where the Court wrote that this need toreconcile economic development with protection of the environment is aptlyexpressed in the con cept of su stainable dev elopm ent . Mo re impo rtantly itcontinued to say that:

For the purposes of thepresent case, this means that the Parties together should lookafresh at the effects on the environment of the operation of the Gabcikovo powerplant. In particular they must find a satisfactory solution for the volume of water tobe released into the old bed of the Danube and into the side-arms on both sides ofthe river.^ ^This reference to needing to reconsider their operations in the light of concemsabout sustainable development adds support to the observations about why theCourt m ight have decided that S lovakia s diversion of the D anube wasdisproportionate as a countermeasure to what Hungary had done. The inability toproperly formulate what the rights of the future generation might be worth couldhave given enough reason to the Court to avoid a discussion of it in its judg m ent.Sustainable development in its interplay with the power of the Court producedan altemative possibility for the application of the equitable utilisation ofintemational watercourses in the Danube Dam Case. It is accurate to suggest thatthe Court learnt through its interaction with Hngary and Slovakia that thearticulation of sustainability in article 5(1) of the 1997 Watercourses Conventionwas necessary. This is important given the lack of apparent connections before thiscase between the concepts of equitable utilisation and sustainable development. ^^Sustainable developm ent app ears to have functioned not as a norm w ith a particular

fixed meaning, but as an episteme that gave context and direction to what the Court


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was being asked to do in relation to the equitable use of an intemationalwatercourse. The power of the Court was disciplined in favour of giving extraprotection to the environment in circumstances that could just as easily have tippedin favour of the social and economic priorities of managing watercourses. In thissense, sustainable development appears to have heightened the awareness of theCourt in favour of existing norms that states had adopted which favoured theenvironmental dimension ofth use of intemational rivers.

In contrast to the above discussion in section 5 (a) on the precaution aryprinciple, it is arguable that sustainable development had more of a productiveeffect on the Court because it interpreted equitable utilisation in favour ofenvironmental concems raised by Hungary. This is in contrast to its interpretationof 'imminent peril', which did not favour the more environmentally sensitiveapproach that could have been produced by the Court had the precautionaryprinciple had more of an effect on it. However, the differences between the twosituations are important in terms of the way that the Court's power over Hungaryand Slovakia was produced. In assessing what 'imminent peril' meant, the Courtdid not appear to have any other evidence from, for instance, the Draft Articles onState Responsibility, which would have suggested that the practices of statesfavoured giving credence to 'uncertain' risks to the natural environment. Ininterpreting what 'equitable utilisation' of a watercourse referred to in assessingwhat Hungary had been deprived of, the Court instead had the 1997 WatercoursesConvention which, although it had not come into force at the time it was deliveringits judgment, was reflective of years of drafting work by the ILC. In other words,the approach of the Court to how it assessed whether Slovakia had deprivedHungary of its right to equitable utilisation of the Danube was socially constructedthrough the productive effect that sustainable development had on the Court'spower.V I Productive Power of Protecting the Future Generation andTransboundary Harm

The discussion in this section continues to explore the interplay between principlesand productive power, but from a different perspective. It examines whether theopen-textured nature of some environmental principles can function as frameswhich help the ICJ to develop a common understanding of deeper philosophicalviews on how the environment should be protected. The significance of thisdiscussion lies in highlighting how the ICJ can potentially develop u nique positionson environmental issues which can then be used in litigation before it, as well as inthe development of intemational law more generally.


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ower Environmental Principles and the International ourto fJustice 121Channel Case did not involve an environmental dispute, various scholars use thetransboundary harm p rinciple identified by the Court to indicate that, as far back as1949, the ICJ had made statements 'pertinent to transboundary environmentalissues'.'^* The transboundary harm principle, in its different formulations, hasbeen described as the 'cornerstone of intemational environmental law'.''*' It wasoriginally raised as a norm in the Trail Smelter Case (Canada/United States ofAmerica) arbitration decision involving Canada and the United States.'^^ Althoughnot in the form stated by the ICJ in later cases, it was codified in Principle 21 of theStockholm Declaration and then in similar terms by Principle 2 of the RioDeclaration. ' 5 ' The version that appears in Principle 21 of the StockholmDeclaration identifies that:

States have, in accordance with the Charter of theUnited Nations and the principlesof intemational law, the sovereign right to exploit their own resources pursuant totheir own environmental policies, and the responsibility to ensure that activitieswithin their jurisdiction or control do not eause damage to the environment of otherStates or ofareasbeyond the limits ofnationaljurisdiction. ^

Sands, 'Pleadings and the Pursuit of Intemational Law', above n 81, 629; N Horbachand P Bekker, 'State Responsibility for Injurious Transboundary Activity inRetrospect' (2003) 50Netherlands International Law Review 327, 343-344. On thispoint, see also the dissenting opinion of Judge Weeramantry V-P in Requestfor anExamination of the Situation in Accordance with Paragraph 63 of the Court sJudgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case[1995] ICJ Rep 28 8, where at 362 he notes that the:Corfu Channel case laid down the environmentally important principle that, if anation knows that harmful effects may occur to other nations from facts withinits knowledge and fails to disclose them, it will be liability to the nation thatsuffers damage.P Sands, Principles of International Environmental Law (2 '' ed, 2003) 236; X H anqin,Transboundary Damage in International Law (2003); G Handl, 'Transbound aryImp acts' in D Bodansky , J Brunne and E Hey (eds). The Oxford Handbook ofInternational Environmental Law (2007) 5 31 . Ho we ver, others point to the fact thatthe principle is simply about protecting the territorial integrity of a sovereign:K Bosselmann, 'Environmental Gov ema nce: A New Approach to T erritorialSovereignty' in R Goldstein (e d).Environmental Ethics and Law (2004) 293, 301.Trail Smelter Case (Canada/United States of America) (1938 and 1941) 3 RIAA 1911.On this topic, see m ore gene rally R Bratspies and R Miller (eds ), TransboundaryHa rm in International Law : Lessons from the Trail Smelter Arbitration (2006).For discussions of the differences between Principle 21 of the Stockholm Declaration


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It has been argued that if the Trail Smelter Arbitration were to be retried, itwould not be decided any differently, given the way intemational environmentallaw has evolved since that ca se. ^^ interestingly, in the Trail Smelter ArbitrationCanada did not have to stop operating the smelter that caused the pollution butrather had to ensure that its activities were harmless to the territory of the UnitedStates. Horbach and Bekker, argue that, because of the precautionary principle, theonus of proof that is on states in the light of the transboundary harm principle mayin fact cha nge . ^ As a result, some types of domestic activities m ight now causecertain types of significant transboundary harm (biosafety or biodiversity injury ) ,whether it is today or at some time in the future, and which may need to bestopped. ^^ They also poin t out that this view is consistent with a reading of article1 of the 2001 Draft Articles on the Prevention of Transboundary Harm fromHaza rdous Activities adopted by the IL C . ^^ This observation by Horbach andBekker suggests that the transb

Akhtarkhavari. Transboundary Principle Muy Bien Tratado.

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