I: VINOY’S ACTIONS VIOLATE ITS DUTIES UNDER THE INTERNATIONAL LAW
A. The Republic of Vinoy has injured the sovereignty of the Kingdom of Augustine
Sovereignty is one of the basic elements in international law. According to Article 2 (1) of the Charter of the United Nations Athe Organization is based on the principle of the sovereign equality of all its Members@. Sovereignty is also acknowledged in the Rio Convention on Biological Diversity, which expresses that States have the sovereign right to exploit their own resources. By neglecting to control importation of hazardous wastes, the Republic of Vinoy (Vinoy) has injured the territory of the Kingdom of Augustine (Augustine).
B. Vinoy has acted against the principles of the Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) 1972
As a signatory to the Stockholm Declaration Vinoy is committed Ato protect and improve the environment for the present and the future generationsA. Stockholm Declaration principle 2. In addition, the Declaration particularly states that Athe discharge of toxic substances Y in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflected upon ecosystems@. Stockholm Declaration principle 6.
As Vinoy has not controlled the actions of the FormPlast, it has failed to prevent environmental damage caused by the mercury-laden sludge.
C. Vinoy has breached its duties against the Rio de Janeiro Declaration on Environment and Development (Rio Declaration)1992
Vinoy is a signatory to the Rio Declaration which states that AHuman beings are the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with natureA. Rio Declaration principle 1. The Declaration also expresses the principle of sustainable development that is one of the key principles of the international environmental law. @The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations@ Rio Declaration 3 principle. Vinoy has not acted upon the principle of sustainable development as it did not control the environmentally harmful actions.
According to the Declaration Athe special situation and needs of developing countries Y shall be given special priority@. Rio Declaration principle 6. Furthermore itexpresses that AStates should cooperate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries@. Rio Declaration principle 12. Vinoy has neglected the special needs of a developing country.
D. Vinoy has not fulfilled its duties under the Rio de Janeiro Convention on Biological Diversity (Rio Convention) 1992
1. Vinoy has failed to control environmental damage to another State and has not acted according to the principles of international law
FormPlast is a company functioning under Vinoy`s laws. According to the Rio Convention States have Athe sovereign right to exploit their own recourses pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States@. Rio Convention principle 3. As a party to the Rio Convention has thus failed its duty to prevent environmental and humanitarian harm that FormPlast has caused Augustine.
The sovereign right must be exercised in Aaccordance with the Charter of the United Nations 1945 and the principles of international lawA. Rio Convention principle 3. The UN Charter article 55 obligates States to cooperate in order to promote higher standards of living and to seek solutions to international economic, social and health problems. These objectives require environmental conservation.
Principles of international law include principles of environmental protection and conservation at both the international and national levels. The principles express that the States have to ensure that their activities do not cause environmental damage in other States and that the States are to inform and consult each other, for example, about certain activities which may result in transfrontier hazards. Glowka & Al, A Guide to the Convention on Biological Diversity.
Vinoy has not acted in accordance with the UN Charter and the principles of international law for a company under its control caused serious environmental and humanitarian damage.
2. Vinoy has not protected biodiversity as the Rio Convention requires
As stated in the preamble of The Rio Convention, the conservation of biological diversity is a Acommon concern of the humankindA. According to that statement States should respect biodiversity in all the countries. Article 10 (e) expresses that States should Aencourage cooperation between its governmental authorities and its private sector in developing methods for sustainable uses of biological diversity@. The private sector including business and industry has an important role not only in taking and consuming biological resources but also in the production of waste. Glowka & Al, A Guide to the Convention on Biological Diversity.
The Convention also states that AThe Contracting Parties shall facilitate the exchange of the information, from all publicly available sourcesA. Rio Convention article 17 (1). The special needs of the developing countries have to be taken into account. The exchange Ashall include results of the technical, scientific and socio-economic research as well as information on training and surveying programs and specialized knowledgeA. Rio Convention article 17 (1).
The State of Vinoy, its authorities and FormPlast as a private company have not been cooperating for the benefit of environment and the inhabitants of a developing country.
E. Vinoy ’s actions do not comply with its duties under the Organization for Economic Co-operation and Development
As a party to the Organization for Economic Co-operation and Development, Vinoy does not comply with its duties. The Council Decision-Recommendation on the Reduction of Transfrontier Movements of Wastes includes important principles for the environmentally sound management of wastes. The Decision-Recommendation requires that wastes not destined for recovery operations be disposed of within the Member country in which they are generated. According to this self-sufficiency principle, only if it is not possible for a member country to manage wastes in its own territory, it can enter into bilateral or regional agreements to transport wastes to another country.
Furthermore, in the Council Decision-Recommendation on Exports of Hazardous Wastes from the OECD area, the Environment Committee decided that the member countries should prohibit movements of hazardous wastes to a non-member country unless the wastes are directed to an adequate disposal facility in that country. However, developing countries usually possess inadequate management facilities and – what is more important – limited understanding of the risks involved. In this case it does not seem likely that Augustine – as being a developing country – has a better waste management infrastructure than Vinoy. In addition, the Council Decision-Recommendation requires its members to use no less strict standards on controlling exports to non-members than to members. Furthermore, the mercury-laden sludge belongs to the so-called amber list (see OECD Council Decision C(98)202/Final), which means that its transports should be strictly controlled as it presents sufficient risk to justify waste controls.
F. Vinoy=s negligence violates the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention) 1989
Vinoy argues that since it has not ratified but only signed the Basel Convention it has no obligation pursuant to the convention. However, article 18 of the Vienna Convention sets an obligation to states not to defeat the object and purpose of a treaty prior to its entry into force. A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has signed the treaty until it shall have made its intention clear not to become a party to the treaty. Furthermore, a treaty entered into by many states may be used as evidence of an underlying custom thus binding even those states that were not parties to the treaty. Alder & Wilkinson. Law and Ethics.
The main goals of the Basel Convention are to reduce the generation of hazardous wastes, to encourage their disposal as close as possible to the source of generation (proximity principle) and to ensure that all hazardous wastes are managed in an environmentally sound manner. The primary concern is to safeguard the environment in countries with less developed technical and regulatory infrastructures against the uncontrolled influx of hazardous wastes originating in industrialized nations. In 1994, the Parties to the Convention adopted a decision to enhance the protection afforded to less industrialized countries by prohibiting transboundary movements of hazardous wastes from OECD to non-OECD countries. The Convention requires prior informed consent from the country that waste are transported to. This requirement is the main element in the procedure of waste transportation according the Convention. These principles of waste management disposal are recognized as international customary law.
Vinoy has neglected to control importation of hazardous waste to the developing country, i.e., Augustine, and has thus violated the spirit of the Basel Convention and therefore international law.
G.Vinoy is responsible and liable for the environmental and sanitary harm
and economic loss
1. Vinoy is responsible for the FormPlast actions
1.1. Sic utere principle
There are several principles supported by judicial decisions according to which states may be held accountable for transboundary pollution or other kind of environmental harm originating from their territory.
According to the maxim ’sic utere tuo, ut alienum non laedas’ (principle of good neighborliness), States are required to take adequate steps to control and regulate sources of serious transboundary harm within their territory. So, a state has a duty to prevent, reduce and control environmental harm. Support for such an obligation can be found in arbitral and judicial decisions. For example, in the Trial Smelter arbitration, a tribunal awarded damages to the United States and concluded that ‘no state has the right to use or permit the use of its territory in such a manner as to cause injury in or to the territory of another and that measures of control were necessary.
Furthermore, the judgment of the International Court of Justice in the Corfu Channel case supports a similar principle. In this case, the Court indicated that it was ‘every state’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states’. The state can be seen as a guarantor of private conduct, although its responsibility is direct.
1.2.Vinoy is responsible for FormPlast?s actions according to the Stockholm Declaration and Rio Declaration
The principle 21 of the Stockholm Declaration implies that states have Ato ensure that activities within their jurisdiction or control do not cause damage to the environment of other States beyond the limits of national jurisdictionA. This principle widens the traditional concept of *sic utere= to all the actions conducted under the state=s laws B not only in its territory . The same principle is expressed again in Rio Declarations principle 2.
In international law this Ano harm principleA is understood so that it requires States to do their best to prevent Asignificant transboundary harmA. Glowka & Al, A Guide to the Convention on Biological Diversity.
1.3.Vinoy is responsible for FormPlast`s actions in accordance with the Rio Convention
The principle is also to be found in the third article of the binding Rio Convention. The states have Asovereign right to exploit their own resources pursuant to their own environmental policiesA, but that right is linked to responsibility to ensure environmental protection. States have to Aensure that activities within their jurisdiction or control do not cause damage to other StatesA. Rio Convention principle 3.
The actions of FormPlast caused serious damage to Augustine=s environment, inhabitants and economy. The most severe consequence was the loss of several human lives. Vinoy is responsible for the actions of FormPlast, because that was functioning under Vinoy?s jurisdiction and control.
2.Vinoy is liable for the damage caused to Augustine
2.1 A general principle of compensation
The signatories to the Rio Declaration have stated in principle 7 that States should cooperate Ato develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdictionA. International law does not only mean the conventions, but also for example customary law and general principles.
The Statute of the International Court of Justice goes on to provide that the international law to be applied by the Court is to be derived from the following sources:
“(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law”. The Statute of the ICJ article 38 (1).
2.2. Vinoy as a developed country has a responsibility to compensate damage caused Augustine which is a developing country
According to principle 5 of the Rio Declaration Aall states and all people shall cooperate in essential task of eradicating poverty as an indispensable requirement for sustainable developmentA. Also the preamble of the Rio Convention states that economic and social development and poverty eradication are the first and overriding priorities of developing countries. It also stresses the importance of the cooperation among States, intergovernmental organizations and the non-governmental sector for the conservation of biological diversity and the sustainable use of its components for the benefit of the present and future generations.
FormPlast, functioning under Vinoy?s laws destroyed the economy of Khemboville, which used to be a famous tourist resort in Augustine. The mercury sludge also destroyed biodiversity in the dumping area and caused several deaths. The after-effects caused social disorder and economic loss to Augustine. The fact that Vinoy has accepted back the polluted soil does not eliminate the effects on surrounding environment, human lives and the State?s economy. Augustine is facing a considerable human and environmental catastrophe, and it is not able to repair the damages. Rebuilding the residential areas and tourist industry demand remarkable financial investments and technical knowledge. Instead of directing resources to improving standard of living and developing methods for sustainable use and better environmental management, they have to be directed to repairing work.
All developed countries, but especially parties to the Rio Convention, are obligated to support the aims of the developing countries to reach higher standard of living and, for example, assist in developing more sustainable ways of living, production, tourism and treatment of wastes. Glowka & Al, A Guide to the Convention on Biological Diversity. Vinoy has an obligation to promote the recovery in Khemboville.
2.3. Vinoy is liable for unreasonable environmental harm conducted by FormPlast
According to the polluter pays principle – which is a generally accepted principle of customary international law – a state is liable if it fails to prevent its territory being used in such a way as to prevent unreasonable transboundary damage. Birnie & Boyle. International Law & The Environment. The origins of this principle can be traced to the Trail Smelter arbitration and the Corfu Channel case. The polluter pays principle is also included in a number of treaties (e.g. the International Convention on Civil Liability for Oil Pollution Damage in 1969) and it has become a central feature of European environmental law and policy. Also the principle 16 of the Rio Declaration states that the polluter should bear the costs of pollution.
States can be held accountable for unreasonable environmental harm conducted by private parties as in the Trail Smelter case. Although private parties have conducted the activity causing environmental harm, the States responsibility for environmental harm is derived from the state’s duty of control. As stated earlier, the State?s have an obligation to Aensure that activities within their jurisdiction or control do not cause damage in other StatesA. Rio Declaration, principle 3.
The environmental harm caused to Khemboville must be considered unreasonable. While the FormPlast was functioning under Vinoy?s control, Vinoy is liable for the damage that FormPlast caused to Augustine.
2.4. Examples of compensation in judicial decisions