Energy Law and the Environment Part 3 pps

TECHNOLOGIES & SUSTAINABLE DEVELOPMENT 31 another sense, however, it is as much an energy resource as any of the primary energy resources insofar as it is capable of satisfying society’s demand for energy. Forexample, if society’s demand for electricity can be reduced by a given amount due to the use of energy conservation techniques, this means that the amount of primary energy used is correspondingly reduced. Energy saved is as effective as energy generated in satisfying society’s demands, and in this sense energy conservation is equivalent to the use of primary energy resources. 92 The definition of energy law coined above refers to the ‘exploitation’ of energy resources. The methods of turning energy resources into productive and prof- itable use differ greatly between the various sources, and the involvement of the law must be separately considered in respect of each resource. For example, the exploitation of wind energy raises issues such as: How can access to the wind be legally safeguarded for owners of wind generators? 93 What environmental safeguards exist to protect against visual pollution caused by wind generators in environmentally sensitive locations? 94 To what extent should planning laws be modified so as to permit the construction of wind generators in urban and suburban districts? 95 And what remedies exist to protect neighbouring landowners from possible damage caused by flying rotor blades, collapsing towers or microclimate modification? 96 The ‘allocation of rights and duties’ must next be considered. This expression is designed to consider the balance of legal rights and duties that must be established between the interested parties in respect of each energy resource. Again, the appropriate balance will differ fundamentally according to the nature of the resource. In the case of non-renewable energy resources, there is the initial fundamental issue of ownership rights in the resource. 97 Are or should the resources be vested in public ownership or should they be subject to private ownership? In the case of renewable energy systems, the notion of public ownership of the resource makes no sense. One cannot, for example, ‘own’ the sun, the wind, the tides or the waves. The issue in these cases is rather one of access to the resource. In the case of solar andwind energy access issues involve a balancing of the rights of a solar or wind user to erect and operate their devices as efficiently as possible; 92 A unit of energy saved as a result of energy conservation techniques is sometimes referred to as a ‘negawatt’ (a negative watt). 93 See Adrian J Bradbrook, ‘The Access of Wind to Wind Generators’ [1984] AMPLA Yearbook 433. 94 See H Wilkinson, ‘Wind Farms’ (1994) 134 New LJ 314; Adrian Bradbrook, ‘Liability in Nuisance for the Operation of Wind Generators’ (1984) 1 EPLJ 128. 95 See D Newman, ‘Empowering the Wind: Overcoming Obstacles to Wind Energy Development in the United States’ (2003) 3Sustainable DevelopmentL &Policy 5; L Coit, Wind Energy:Legal Issues andInstitutional Barriers (1979), at 9ff; J Riley, R Odland and H Barker, Standards,at91. 96 See Adrian Bradbrook, ‘The Liability of the User of a Wind Generator in Tort for Personal Injuries’ (1985) 15 Melbourne U L Rev 249; L Bass and P Weis, ‘Safety Standards Development for Small Wind Energy Conversion Systems’ (1981) 3 Solar Law Reporter 453; K Knox, ‘Strategies and Warnings for Wind Generator Buyers’ (1982) 24 Wind Power Digest 54. 97 See Michael Crommelin, ‘The US Rule of Capture: Its Place in Australia’ [1986] AMPLA Yearbook 264; RPierce, ‘Coordinated Reservoirs Development – An Alternative to the Rule of Capture for the Ownership and Development of Oil and Gas’ (1983) 4 JERL 1; Adrian Bradbrook, ‘The Relevance of the Cujus Est Solum Doctrine tothe SurfaceLandowner’s Claimsto Natural ResourcesLocated Aboveand Beneath the Land’(1988) 11 Adelaide L Rev 462. The issues also arises in relation to geothermal resources: see Adrian Bradbrook, ‘The Ownership of Geothermal Resources’ [1987] AMPLA Yearbook 353; Sato and Crocker, ‘Property Rights to Geothermal Resources’, 247. 32 ENERGY LAW AND THE ENVIRONMENT in other words, to avoid all possible physical barriers to the flow of wind and access to sunlight, with the rights of neighbouring landowners to develop their land as they consider fit. 98 In the same way as the law has to find a compromise between the state and a petroleum company in the case of the development of oil and gas resources, so the law has to achieve a balance in the case of solar and wind energy between neighbours. While the balance in the petroleum context is usually achieved by the introduction of legislation controlling petroleum exploration and production, in the case of solar and wind energy the balance is usually achieved by the use of the local planning laws. In the case of energy conservation, the roles of the individual and the State are effectively reversed. As it is in the national interest to conserve energy to the maximum extent practicable, the individuals or companies who engage in energy conservation techniques are helping the State as much as themselves, not simply financially, but in relation to other matters such as energy security or the avoidance of pollution. Thus, it is appropriate to think in terms of the individual or company having legal ‘rights’ and the State having legal ‘duties’ towards them. The preceding discussion explains why the definition of energy law referred to above refers to the allocation of rights and duties concerning the exploitation of energy resources ‘between individuals’ and ‘between individuals and the government’. We must now consider the role of energy law in allocating rights and duties ‘between governments’ and ‘between States’. The allocation of rights and duties between governments arises for consideration in federal jurisdictions such as Australia and raises issues of constitutional law. In Australia the Constitution reserves residual rights to the States and gives only enumerated powers to the Commonwealth government. Energy issues fall within the residual powers of the States and thus primary responsibility for energy laws lies at State level. To date, the existing laws affecting renewable energy resources and energy efficiency (apart from taxation issues), including the electricity industry, are purely at State level. However, with the newly established national electricity grid and a national market for electricity and other energy products, together with the increasing interconnection of the State grids, it is possible that the Commonwealth government will be able to attract jurisdiction to itself over the industry pursuant to the trade and commerce power (s 51(i)) and the corporations power (s 51(xx)) of the Constitution. 99 Finally, rights andduties in the energy sectormust be allocated by law between States. This, of course, raises a consideration of the application of the principles of international law in the context of energy. This area has evolved and continues to evolve very rapidly and represents the real cutting edge of energy law at the 98 In relation to solar energy, see M M Eisenstadt, ‘Access to Solar Energy: The Problem and its Current Status’ (1982) 22 Natural Resources J 21;JGergacz, ‘Legal Aspects of Solar Energy: Easements for Sunlight and Individual Solar Energy Use’ (1980) 18 American Business L J 414; Adrian Bradbrook, ‘The Development of an Easement of Solar Access’ (1982) 5 UNSWLJ 229. In relation to wind energy, see R Taubenfeld and HTaubenfeld, ‘Wind Energy: Legal Issues and Legal Barriers’ (1977) 31 Southwestern L J 1053; Adrian Brad- brook, ‘The Access of Wind to Wind Generators’ [1984] AMPLA Yearbook 433. 99 Adrian Bradbrook and Alexandra Wawryk, ‘Constitutional Implications of the Restructuring of the Australian Electricity Industry’ (1996) 3 Australasian Natural Resources L & Policy 239. TECHNOLOGIES & SUSTAINABLE DEVELOPMENT 33 present time. Until comparatively recently, energy was seen to be very much a national issue and one that required little, if any, international legal intervention. In recent years, however, world concern for the environment, together with the removal of trade barriers, has led to a realisation that international law has a significant role to play in this domain. The role of international law in promoting the use of renewable energy resources and energy efficiency is discussed in detail in the next chapter. 3 Energy, international environmental law and sustainable development In this chapter the international environmental law and policy aspects that are relevant to energy law and the environment are assessed. The purpose of this is to discuss the many international instruments which have together shaped the parameters of what we now refer to as ‘a sustainable energy law framework’. Principal among these is the 1992 United Nations Framework Convention on Climate Change (UNFCCC), 1 and its associated Kyoto Protocol, 2 which require thestabilisation of global greenhouse gas emissions to 1990 levels. The reason that this instrument is so significant is that it is the stationary energy sector, reliant on the burning of fossil fuels, which is, globally, the biggest emitter of greenhouse gas emissions. It is also important to understand the basic underpin- nings of the Rio Declaration 3 and Agenda 21, 4 which established the parameters for nations to move towards sustainable development. The energy and climate change outcomes of the 2002 World Summit on Sustainable Development and theG8Gleneagles Summit 2005 will also be mentioned, as they enunciate the global community’s most recent commitments to a program of action towards developing a sustainable energy framework. 3.1 The role of energy in international law Although public international law has existed for many centuries, it is only since the1970s that it has concerned itself with energy issues. Traditionally the legal 1 (1992) 31 ILM 849; 1771 UNTS 108 (in force 29 May 1992). 2 (1998) 37 ILM 22; UN Doc FCCC/CP/1997/L.7/Add.1 (in force 16 February 2005). 3 A/CONF.199/CRP/7. See <www.unep.org/Documents/Default.asp?DocumentID= 78&ArticleID=1163> (accessed 16 March 2005). 4 A/Conf 151/26; discussed in Nicholas A Robinson (ed.), Agenda 21: Earth’s Action Plan,OceanaPress, 1993. Available at <www.un.org/esa/sustdev/documents/agenda21/English> (accessed 31 January 2005). 34 INTERNATIONAL LAW & DEVELOPMENT 35 regulation of energy issues has been regarded as a matter of domestic, rather than international law, and a matter that is exclusively for the States to resolve on an individual basis. This traditional approach has changed for a variety of reasons, largely involving international trade. First and foremost, there has been an expo- nential leap in the quantum of energy use worldwide, particularly in developed countries, since the end of the SecondWorld War. This has ledto increased energy trade and increased reliance in many countries on energy imports, particularly petroleum products, which in turn has led to heightened energy security concerns. These concerns were brought to world attention by the Arab oil embargo in 1973 and the subsequent oil price increases in 1979 and 1981. Although the onlydirectlegalconsequenceflowingfromthe OrganisationofPetroleumExport- ing Countries’ (OPEC) stranglehold on petroleum exports was the agreement to create a strategic petroleum reserve, to guard against future world export prob- lems, the OPEC ascendancy in the 1970s was responsible for highlighting energy security concerns worldwide and caused many countries to rethink their energy strategies. 5 The development of free trade principles under the GATT 6 and the creation of regional and bilateral free trade agreements also have significant implications for international energy markets. In relation to regional energy markets, the European Union is creating an internal energy market and a corresponding harmonisation of the energy laws of the member nations. The North American Free Trade Agreement (NAFTA), 7 which is now as far-reaching in this regard as the European Union’s single energy market, entails a restriction on the sovereign rights of individual members to enact energy laws inconsistent with the freedom to trade across borders in the energy field. The use of the high seas in modern times for energy production and transportation has also shown the increasing relevance of public international law to the energy field. Energy transportation of fossil fuels is largely the domain of large ocean-going tankers, some of which have foundered, causing severe environmental damage to adjacent coastal States. 8 This has led to the introduction 5 On the importance of national energy security, particularly for developed countries, see United Nations Development Programme, United Nations Department of Economic and Social Affairs and World Energy Council, World Energy Assessment: Energy and the Challenge of Sustainability,United Nations, New York 2000, ch4(hereafterreferred to as World Energy Assessment); B Barton et al, Energy Security: Managing Risk in aDynamic Legal and Regulatory Environment,Oxford University Press, Oxford, 2004; J Gault, ‘European Energy Security’, OGEL at <www.gasandoil.com/ogel/>,2004, vol 2, no 2; C L Orman, ‘The National Energy Strategy – An Illusive Quest for Energy Security’ (1992) 13 Energy L J 251. 6 General Agreement on Tariffs and Trade, TIAS No 1700, 55 UNTS 194. 7 Foradiscussion of the impact of NAFTA on energy trade, see e.g. R Page, ‘Greenhouse Gas Emissions and Emissions Trading in North America: Kyoto Protocol and US Initiatives: Challenges for the NAFTA Family’ (2002) 28 Canada-United States LJ 55; O Saunders, ‘GATT, NAFTA and North American Energy Trade: A Canadian Perspective’ (1994) 12 J Energy and Natural Resources Law 4; E Smith and D Cluchey, ‘GATT, NAFTA and the Trade in Energy: A US Perspective’ (1994) 12 J Energy and Natural Resources Law 27;DMacDougall, ‘Trade in Energy and Natural Resources: The Role of GATT and Developing Countries’ (1994) 12 JEnergy and Natural Resources Law 95; C Redgwell, ‘Energy, Environment and Trade in the European Community’ (1994) 12 J Energy and Natural Resources Law 128. 8 In particular, the Erica,theExxon Valdez,theAmoco Cadiz and the Torre y Canyon. See P Birnie and A Boyle, International Law and the Environment,Oxford University Press, Oxford, 2nd edn, 2002, ch 7. In relation to oil pollution at sea more generally, R Bhatia and J Dinwoodie, ‘Daily Oil Losses in Shipping Crude Oil: Measuring Crude Oil Loss Rates in Daily North Sea Shipping Operations’ (2004) 32 Energy Policy 811. 36 ENERGY LAW AND THE ENVIRONMENT of the 1973 MARPOL Convention 9 and the 1982 UN Convention on the Law of the Sea, 10 which redefine the legal relationship between the coastal and port States, on the one hand, and the flag State, on the other hand. The effect of these conventions is to increase significantly the obligations of the flag States in relation to the protection of the seas. 11 The high seas are also used increasingly for energy exploration and production, particularly offshore oil and gas. This has given rise to significant developments in international law relating to boundary disputes, 12 pipelines and artificial islands, and the abandonment of offshore installations. 13 The involvement of energy issues in the sub-discipline of international environmental law has been even more recent. International environmental law has its origins in the Stockholm Declarationof 1972, 14 although this document makes no mention of energy. Since 1972, however, there has been increasing recogni- tion of the fact that the environmental impact of energy use has an international dimension. This message has been brought home to the international community in spectacular fashion in recent times by a series of oil tanker disasters and, in respect of nuclear energy, by the Chernobyl and Three Mile Island incidents. Other major international environmental impacts associated in whole or in part with energy use and production include acid rain, climate change and the dump- ing of radioactive wastes. To a lesser extent one can also add the depletion of the ozone layer 15 and desertification. 16 As a result of these developments, energy is now very much a part of international environmental law. The major hallmark of environmental law in recent times is that of sustainable development. This phrase was developed by the World Commission on 9 International Convention for the Preventionof Pollutionby Ships(MARPOL) (London), 12 ILM 1319 (1973) (in force 2 October 1983). Note that this Convention was amended by the Protocol Relating to the Convention forthe Prevention of Pollution from Ships (MARPOL), 17 ILM 546 (1978) before coming into force. See A Griffin, ‘MARPOL 73/78 and Vessel Pollution: A Glass Half Full or Half Empty’ (1994) 1 Ind J Global Legal Studies 419; G Peet, ‘The MARPOL Convention: Implementation and Effectiveness’ (1992) 7 Int J Estuarine and Coastal Law 277. 10 UN Convention on the Law of the Sea (Montego Bay), 21 ILM 1261 (1982). 11 See e.g. A Boyle, ‘Marine Pollution Under the Law of the Sea Convention’ (1985) 79 AJIL 347; P Allott, ‘Power Sharing in Law of the Sea’ (1983) 77 AJIL 1. 12 There have been numerous sea boundary disputes in recent times resolved either by agreement or by arbitration. These include the Gulf of Maine (United States and Canada), the English Channel (United King- dom and France), the Gulf of St Lawrence (Canada and France), the North Sea (Germany, the Netherlands and Denmark) and the Oder Bight (Germany and Poland). Disputes still unresolved include the Timor Sea (Australia and East Timor) and the Spratly Islands (the Philippines, Vietnam and China). For a discussion of this area of law, see E D Brown, Sea-Bed Energy and Minerals: The International Legal Regime,Martinus Nijhoff, Dordrecht, 1992, Vol 1, ‘The Continental Shelf’. 13 See R Higgins, ‘Abandonment of Sites and Structures: Relevant International Law’ (1993) 11 JEnergyand Natural Resources Law 6; R Bond, ‘Abandonment and Reclamation of Energy Resource Sites and Facilities: A Joint Venturer’s Perspective’ (1993) 11 Oil and Gas Law and Taxation Rev 227. 14 UN Doc. A/CONF/48/14/REV 1. 15 This area of international law is discussed in J Setear, ‘Ozone, Iteration and International Law’ (2000) 40 VaJInt L 193; L Thorns, ‘Comparative Analysis of International Regimes on Ozone and Climate Change With Implications for Regime Design’ (2003) 41 Columbia J Transnational L 795; T C Faries, ‘Clearing the Air: An Examination of International Law on the Protection of the Ozone Layer’ (1990) 28 Alberta L Rev 818; Birnie and Boyle, International Law and the Environment, (2nd edn 2002), at 517–23; A Enders and APorges, ‘Successful Conventions and the Conventional Success: Saving the Ozone Layer’, in K Anderson and RBlackhurse (eds), The Greening of World Trade Issues (1992), at 131; D Doolittle, ‘Understanding the Ozone Depletion: The Meandering Road to the Montreal Protocol and Beyond’ (1989) 16 Ecology LQ 408. 16 UNDP et al, World Energy Assessment,at66. INTERNATIONAL LAW & DEVELOPMENT 37 Environment and Development in its 1987 report, Our Common Future. 17 This report was the culmination of international research and investigation into thestate of the global environment. The 21-member Commission, chaired by Norwegian Prime Minister, Gro Harlem Brundtland, heard evidence from public meetings held on all five continents over 3 years. The Report included environmental strategies for achieving sustainable development by the year 2000 and beyond, and was hailed by the United Nations Environment Programme as the most important document of the decade. The Brundtland Report defined ecologically sustainable development as ‘development which meets the needs of present generations without compromis- ing the ability of future generations to meet their needs’.Various other definitions have been offered in national and state legislation. One of the most comprehen- sive is that in the Aquaculture Act 2001 (SA),s4: (1) Development is ‘ecologically sustainable’ if it is managed to ensure that communities provide for their economic, social and physical well-being while – (a) natural and physical resources are maintained to meet the reasonably foreseeable needs of future generations; and (b) biological diversity and ecological processes and systems are protected; and (c) adverse effects on the environment are avoided, remedied or mitigated. (2) In making decisions as to whether development is ecologically sustainable or to ensure that development is ecologically sustainable (a) long-term and short-term economic, environmental, social and equity considerations should be effectively integrated; and (b) if there are threats of serious or irreversible environmental harm, lack of full scientific certainty should not be taken to justify the post- ponement of decisions or measures to prevent the environmental harm. 18 The majority of the legal instruments relating to environmental aspects of energy law have been developed since 1987 and represent the application of sustainable development principles. Some of the earlier instruments, however, predate the Brundtland Report. We will now consider the most important of these energy- related instruments in chronological sequence, dealing first with relevant conventions and then with non-binding, ‘soft law’ declarations. First, however, we must examine whether customary international law has a role to play in this area. 17 WorldCommission on Environment and Development, Our Common Future,Oxford University Press, Melbourne, 1987. 18 See also Sustainable Forests (Timber) Act 2004 (Vic), ss 3, 5; Resource Management Act 1991 (NZ), s 5(2). Foradefinition of sustainable development in international legal instruments, see the Rio Declaration on Environment and Development, principles 1, 8, 9, 10, 12 and 15. 38 ENERGY LAW AND THE ENVIRONMENT 3.2 Customary international law There are three widely accepted principles of customary international law that appear to have potential application in this area. First, the duty to prevent and control environmental harm requires States to take adequate steps to control and regulate sources of serious global pollution or transboundary harm within their territory or subject to their jurisdiction. The origins of such a duty are the Trail Smelter decision 19 and Principle 21 of the 1972 Stockholm Declaration on the Human Environment. 20 In the Trail Smelter arbitration the tribunal held that ‘no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another of the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence’. 21 Principle 21 of the Stockholm Declaration affirms the sovereign right of States to exploit their own resources pursuant to their own environmental policies and their responsibility to ‘ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or to areas beyond the limits of national jurisdiction’. Principle 21 wasregarded by many States present at the Stockholm Conference, and sub- sequently by the UN General Assembly, as reflecting customary international law. 22 Its content has been included in a number of later instruments, including UNCLOS, article 194(2), the 1985 ASEAN Convention on the Conservation of Nature and Natural Resources, article 20, 23 and in the Preamble of the United Nations Framework Convention on Climate Change. Principle 21 has been restated in the 1992 Rio Declaration. As applied in subsequent treaties and resolutions, 24 thePrinciple recognises a duty to prevent harm rather than merely make reparation for environmental damage. The Principle has been highly influ- ential in later international developments. Older formulations of the ‘no harm’ principle dealt only with transboundary harm to other States, but conventions and declarations subsequent to the Stockholm Declaration support international acceptance of the protection of global common areas. 25 The International Court of Justice has confirmed in the 1997 Gab¸cikovo-Nagymaros (Hungary v Slovenia) decision that the duty not to cause transboundary environmental harm is a duty under general international law. 26 19 (1941) 35 AJIL 684. See also the Corfu Channel case (1949) ICJ Rep 1. 20 UN Doc. A/CONF/48/14/REV 1. 21 (1941) 35 AJIL 684 at 716. 22 On this subject, see e.g. L Sohn,‘The Stockholm Declaration on the Human Environment’(1973)14 Harvard LJ 423 at 485–93. See also UNGA Res 2996 (XXVII) (1972). 23 (1985) 15 EPL 64. 24 See, for example, Final Act, Conference on Security and Cooperation in Europe, Helsinki, August 1976; Preliminary Declaration ofa Programme ofAction ofthe EuropeanCommunities inrespect tothe Environment (1973) O.C.J. 112/1. 25 See e.g. 1982 UNCLOS, arts 145, 209; Convention for the Regulation of Antarctic Mineral Resources Activities (27 ILM 868); 1991 Protocol to the Antarctic Treaty on Environmental Protection (30 ILM 678). 26 (1997) ICJ Rep 7; discussed in P Bekker, (1998) 92 American J Int L 273; A Koe, ‘Damming the Danube: The International Court of Justice and the Gab¸cikovo-Nagymaros Project’ (1998) 20 Sydney L Rev 612; P Taylor, ‘Case Concerning the Gab¸cikovo-Nagymaros Project:A messagefrom The Hagueon Sustainable Development’ (1999) 3 NewZealand J Environmental L 109. See also the Advisory Opinion of the ICJ in the Nuclear Weapons case (1996) ICJ 226. INTERNATIONAL LAW & DEVELOPMENT 39 This first principle might initially appear to be an effective means of ensuring that adequate controls exist at international level to prevent individual States causing pollution to neighbouring States in all energy-related contexts. However, theprecise scope of the legal duty to prevent transboundary pollution is not clear. Uncertainties exist on a number of matters. For example, it is not clear whether theobligation is one of due diligence or absolute prevention of harm; 27 moreover, the type and degree of harm from which States must be protected is not settled. 28 Although it is possible to talk generally of an international obligation not to harm theenvironment of other States, it is not possible to define precisely the content of the obligation. The duty must be examined individually as it applies to each type of environmental activity or harm. Second, there is a duty of transboundary cooperation in the control of transboundary environmental risks. 29 This principle is supported in part by the law relating to the use of shared natural resources and requires prior consultation based on adequate information. 30 Pursuant to Principle 24 of the Stockholm Dec- laration, the duty extends to the case of management of transboundary or global environmental risks posed by hazardous or potentially harmful activities. These presumably include, inter alia, nuclear installations near borders and long-range transboundary air pollution.Inadditiontothe StockholmDeclaration,somemea- sure of prior notification and consultation has been called for in certain treaty regimes and in the environmental strategies of UNEP and other international bodies. 31 Identical procedural obligations will not apply to each case of environmental risk. The risk of harm must be significant or appreciable, and the obligation will depend on the circumstances of each case. For example, the obligation to consult about nuclear power stations has been narrowly construed by State practice and applies only to installations within 30 km of a State border. 32 The duty imposes an obligation to negotiate in good faith but there are no substantive limitations on activities, such as a prohibition on the installation of nuclear facilities. 33 Third, the duty of notification and cooperation in an environmental emergency is also widely accepted as customary law. State practice, case law, treaties and resolutions of international bodies support the existence of an obligation 27 According to Birnie and Boyle, International Law and the Environment,at113:‘Treaty formulations and thework of the ILC overwhelmingly favour the due diligence interpretation of states’ primary environmental obligations’. 28 See Birnie and Boyle, International Law and the Environment,at94–102. 29 For illustrations of State practice on this point, see the Lac Lanoux arbitration (1957) 24 ILR 101; Nuclear Test Cases (Australia v France) (1973) ICJ Rep 99; (1974) ICJ Rep 253; (New Zealand v France) (1973) ICJ Rep 135; (1974)ICJRep457. 30 See e.g. G Handl, ‘The Principle of “Equitable Use” as applied to Internationally Shared Natural Resources: Its Role in Resolving Potential International Disputes over Transfrontier Pollution’ (1978) 14 Revue belge de droit international 40; A Utton, ‘International Environmental Law and Consultation Mechanisms’ (1973) 12 Columbia J Transnational L 56. 31 See, for example, 1982 UNCLOS, Articles 204–206; Convention for the Regulation of Antarctic Mineral Resource Activities (1988) 27 ILM 868; Protocol to the Antarctic Treaty on Environmental Protection (1991) 30 ILM 1461. 32 See, for example, 1977 Denmark–Federal Republic of Germany Agreement Regulating the Exchange of Information on the Construction of Nuclear Installations along the Border (1978) 17 ILM 274. 33 Birnie and Boyle, International Law and the Environment,at128. 40 ENERGY LAW AND THE ENVIRONMENT to give timely notification to States at risk of transboundary environmental harm to enable them to take measures for self-protection and minimisation of damage. 34 Other principles relevant to the international control of energy-based pollution are in the process of evolving in international environmental law. These include the precautionary principle; the principle of sustainable development; intergenerational equity; transfer of technology; and, more controversially, the right to a decent environment. 35 While these various principles outlined above have application in the energy context in relation to atmospheric pollution, they are as yet insufficiently developed and defined to address adequately the environmental difficulties concerning nuclear radiation, acid rain, ozone depletion and climate change. The area where custom is perhaps of least assistance is that of climate change. It is possible to argue that the ‘no harm’ principle in customary international law applies to protection of the global atmosphere. This point is made by Birnie and Boyle who draw together different instruments which regulate activities affecting the atmosphere and argue that a duty of ‘no harm’ exists. To begin with, Principle 21 of the Stockholm Declaration forms the basis for the long-range air pollution treaties and for various provisions of the 1982 UN Convention on the Law of the Sea. Although the global environment is not an area ‘beyond the limits of national jurisdiction’ and hence within the exact terms of Principle 21, Birnie and Boyle argue that it should, by analogy, fall within the protection afforded by international law to common areas such as the high seas. 36 Further support for the application of the ‘no harm’ principle to climate change is the 1977 Convention on theProhibition of Military or Other Hostile Use of Environmental Modification Tec hniques, which indicates State concern regarding the hostile modification of the atmosphere. In addition, the 1980 UNEP Principles of Co-operation in Weather Modification recommend that weather modification activities should only be carried out in ‘a manner designed to ensure that they do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’. Birnie and Boyle conclude that customary international lawmay provide some legal constraint on the conduct of activities likely to result in global climate change. However, there is no standard of due diligence that can be applied. The standards of due diligence contained in the Long-Range Transboundary Air Pollution Convention and the Ozone Convention cannot necessarily be gener- alised into customary law. The most telling argument against the customary rule applying to global climate change is the lack of consensus among States on the 34 See, for example, Corfu Channel case (1949) ICJ Rep 22; 1982 UNCLOS, Articles 198, 211(7); 1989 Basel Convention on the Control of Transboundary Movement of Hazardous Waste, Article 13; 1976 Convention on theProtection of the Rhine Against Chemical Pollution, Article 11. 35 Foradiscussion of emerging principles of international environmental law, see H Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental Law,Graham&Trotman, London, 1994; AKiss and D Shelton, International EnvironmentalLaw,Transnational Publishers Inc, New York, 3rd edn 2004, ch 5. 36 Birnie and Boyle, International Law and the Environment,at502. [...]... nations and other developed countries, on the one hand, and eastern European and other nations which were formerly part of the USSR, on the other hand The purpose of the Charter was to encourage investment and trade in the energy markets of eastern Europe after the collapse of communism in the late 1980s.84 The Charter was signed on 17 December 1991 at The Hague by 47 nations, consisting of most western and. .. educating the public about global climate change and its effects (article 6) The Parties are also required at Conferences of the Parties to regularly review progress made in implementing the UNFCCC 3. 3 .3. 2 The Kyoto Protocol At the third Conference of the Parties in 1997, signatories to the UNFCCC met to develop a Protocol for advancing the goals of the Convention The Protocol is now known as the Kyoto... emissions or their transboundary fluxes by at least 30 % by 19 93 and report thereon to the executive body Third, article 3 of the Protocol obliges the Parties to study at the national level the necessity for further reductions beyond the initial 30 % reduction when environmental considerations warrant The 1985 Protocol on Sulphur Reductions did not apply to the control of nitrogen oxide, another pollutant... together with the United States, Canada, Japan, Australia and New Zealand Following the signing of the Charter the parties agreed to continue negotiations with a view to enshrining the terms of the Charter in the form of a binding See FCCC/CP/2001/ 13/ Add .3 available at (accessed 16 November 2004) 81 82 (1995) 34 ILM 36 0 (1995) 34 ILM 446 83 For... storage, handling and treatment facilities for radioactive materials as are on the same site and are directly related to the operation of the nuclear power plant’ The Convention does not cover the safety of military and non land-based facilities Article 4 of the Convention obliges each Party to take, within the framework of its national law, the legislative, regulatory and administrative measures and other... increase energy efficiency and to increase the use of renewable energy By article 3, the Parties must, consistent with their national laws, regulations and practices, facilitate the exchange of technologies and techniques, including those that increase energy efficiency and the use of renewable energy There is also an obligation in article 6(e) to encourage research, development, monitoring and cooperation... International environmental law relating to nuclear energy is discussed in numerous articles The best known include: B Kunth, ‘International Aspects of Nuclear Installations Licensing’ (1987) 5 J Energy and Natural Resources Law 202; A E Boyle, ‘Nuclear Energy and International Law: An Environmental Perspective’ [1989] British Yearbook of International Law 257; Birnie and Boyle, International Law and the Environment, ... in the Event of a Radiological Emergency; the Nordic Mutual Emergency Assistance Agreement in Connection with Radiation Accidents 19 63; and the Criteria for the Levels of Radioactive Releases from Nuclear Power Plants into the Environment at which it is Necessary to Inform the Other CMEA Member Countries 1984 46 ENERGY LAW AND THE ENVIRONMENT a discussion of the multilateral agreements between the. .. compliance with the IAEA standards Rather, pursuant to paragraph (viii) of the Preamble, the Convention entails a commitment to the ‘application of fundamental safety principles for nuclear installations 48 ENERGY LAW AND THE ENVIRONMENT rather than that of detailed safety standards’ Article 5 requires each Party to submit to periodic review a report on the measures it has taken to implement each of the obligations... for the current generation, and to aim to avoid imposing undue burdens on future generations The compliance system under this Convention is based on peer review The Parties are required to report on the measures that they have taken to implement the terms of the Convention Article 32 requires the Parties to submit national reports to the review meeting about nuclear safety practice and article 33 obliges . (1994) 12 J Energy and Natural Resources Law 128. 8 In particular, the Erica,theExxon Valdez,theAmoco Cadiz and the Torre y Canyon. See P Birnie and A Boyle, International Law and the Environment, Oxford. ENVIRONMENT of the 19 73 MARPOL Convention 9 and the 1982 UN Convention on the Law of the Sea, 10 which redefine the legal relationship between the coastal and port States, on the one hand, and the flag. and Canada), the English Channel (United King- dom and France), the Gulf of St Lawrence (Canada and France), the North Sea (Germany, the Netherlands and Denmark) and the Oder Bight (Germany and

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