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Australia and New Zealand argued before the International Court of Justice that
French nuclear tests in the Pacific resulted in radioactive fallout in their
territories. The Court did not pass on this argument, holding that the dispute
disappeared when the French announced they would cease nuclear testing.
Nuclear Tests Case, ICJ Reports (1974) p. 253. For Australian argument, see
ICJ Pleadings, Nuclear Tests Case, 1, p. 14.
10. American Law Institute, Restatement of the Foreign Relations Law of the United
States (Third) (St. Paul, MN: American Law Institute Publishers, 1987) section
601, vol. 2, p. 103.
13. Report of the International Law Commission 1989, U.N. Document A/44/10
(New York, NY: United Nations, 1989) pp. 222-23.
15. See Ottawa Statement of Legal and Policy Experts on Protection of the
Atmosphere (22 February 1989).
16. J. Barboza, Sixth Report on International Liability, U.N. Document A/CN4/428
(New York, NY: United Nations, 15 March 1990) p. 41.
18. See World Charter for Nature, UNGA Res. 37/7 (1982), International Legal
Materials, 22 (1983) p. 455; D. Caron, "The Law of the Environment," Yale
Journal of International Law, 14 (1989) pp. 528-29; M. Glennon, "Has
International Law Failed the Elephant T American Journal of International Law,
84 (1990) pp. 1, 28-30. See also C. Stone, "Should Trees Have Standing? —
Toward Legal Rights for Natural Objects," Southern California Law Review, 45
(1972) p. 450 (1972); Sierra Club v. Morton, 405 U.S. 727, 741-60 (1972)
(Douglas, Blackmun and Brennan, J.J., dissenting); and Treaty on Principles
Governing the Activities of States in the Exploration and Use of Outer Space,
Article IX, 610 UNTS 205, International Legal Materials, 6 (1967) p. 386.
2Z See Article 8 of ILC draft articles. Barboza, paragraph 311; sec. 601 of the
Restatement.
For a comprehensive account, see D. Fisher, Fire and Ice, (New York, NY:
Harper and Row, 1990).
The Vienna Convention on Protection of the Ozone Layer and the Convention
on Long Range Transboundary Pollution provide for cooperation of the parties
in providing data and in conducting studies regarding the pertinent
environmental dangers. The Council of the OECD has a Recommendation on
Principles Concerning Frontier Pollution which declares that: "Prior to the
initiation in a country of works or undertakings which might create a significant
risk of transfrontier pollution, this country should provide early information to
other countries which are or may be affected—and should invite comments."
The UJN. Environment Program conducts a Global Environmental Monitoring
System in collaboration with scientific bodies devoted mainly to air and water
quality. Many other informational and assessment activities are carried out by
the specialized agencies of the United Nations and by scientific and conservation
organizations. See UN Secretary-General Report, Progress Made Towards
Sustainable and Environmentally Sound Development, UN Document A/44/339
and addenda, (1989). See also L.K. Caldwell, International Environmental
Policy (Durham, NC: Duke University Press, 1984) pp. 91-96; and A. Kiss,
Droit international de T environnment, (Paris: A. Pedone, 1989) pp. 307-36.
One legal scholar supports this right as derived from general principles of law in
the sense of Article 38 (l)(c) of the Statute of the International Court. He denies
that it can be regarded as customary law because state practice does not show
that notification is practiced from a sense of legal obligation. See D. Partan,
"The Duty to Inform in International Environmental Law," Boston University
International Law Journal, 6 (1988) p. 113.
The Restatement reporters regard the duty to notify and consult as "accepted" in
regard to activities likely to cause significant injuries in another country, as long
as "inordinate delays in development projects" are not caused by notification
and consultation (Restatement, Sec. 601, reporters' note 4).
Support for international obligation of notification is supported by several
international lawyers. See Handl, American Society of International Law
Proceedings, 8 (1980), pp. 223-24; D. Magraw, "Transboundary Harm,"
American Journal of International Law, 80 (1980), pp. 305, 327-29.
Schachter, pp. 71-73.
See, for example, "Vienna Convention on Civil Liability for Nuclear Damage,
1963," International Legal Materials, 2 (1963) p. 727; and "International
Convention for Civil Liability for Oil Pollution Damage, 1969," International
Legal Materials, 9 (1970) p. 45. These provide for strict liability of the "private" actor
subject to a ceiling on the amount of compensation. The state of the operator is
liable if the operator cannot pay.
67. See Dupuy, pp. 115-16. Although victim states did not lodge claims against the
Soviet Union or against Switzerland, some governments maintained in meetings
after Chernobyl and Sandoz that the "polluter-pays" principle should be upheld.
See G. Handl, "Transboundary Nuclear Accidents," Ecology Law Quarterly, 15
(1988) pp. 203,226-27.
68. Barboza, Article 9.
(a) conform to generally accepted international rules and standards for the
prevention, reduction, and control of injury to the environment of another
state or of areas beyond the limits of national jurisdiction;...
76. ibid. The comment also says that a state is obligated to comply with an
environmental rule or standard that has been "accepted by both it and an injured
state, even if that rule or standard has not been generally accepted."
79. Japanese courts have applied negligence standards in pollution cases but have
placed the burden on the defendants to show why they should not be held liable.
The courts gave no weight to compliance by the defendants with government
rules. See Upham, "Litigation and Moral Consciousness in Japan—An
Interpretive Analysis of Four Pollution Suits, "Law and Society Review, 10
(1976) pp. 579,584, quoted in Gaines, p. 334.
The Ottawa Statement of Legal and Policy Experts (22 February 1989) called for
study of a World Climate Trust Fund to support reduction of emissions of
greenhouse gases and to mitigate effects of climate change. The beneficiaries
would be developing countries. The fund would be financed by contributions,
user fees for activities causing climate change and fines for violations of the
proposed convention on climate change.
See R. Bilder, "The Role of Unilateral State Action in Preventing International
Environmental Injury," VanderbiU Journal of Transnational Law, 14 (1981) p. 51 ;
and E. Zoller, Peacetime Unilateral Remedies (Dobbs Ferry, NY: Transnational
Publishers, 1984).
84. These proposals were made by the Experts Group on Environmental Law of the
World Commission on Environment and Development. They are included in
Our Common Future (Oxford: Oxford University Press, 1987) pp. 348-51.
85. ibid.