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The 2008 United States-India Nuclear Co-operation Agreement and the Work of the International Law Commission on International Liability for Injurious Consequences Arising Out of Acts not Prohibited by International Law

Published online by Cambridge University Press:  04 November 2011

Robert P. BARNIDGE Jr.
Robert P. BARNIDGE Jr.*
Affiliation:
University of Reading, United Kingdom
*
r.barnidge@reading.ac.uk
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Abstract

This article examines the 2008 Agreement for Co-operation Between the Government of the United States of America and the Government of India Concerning Peaceful Uses of Nuclear Energy [“123 Agreement”] within the context of the International Law Commission's (ILC) work on international liability for injurious consequences arising out of acts not prohibited by international law. Attention is paid to three issues in particular, namely how international environmental law has developed to interact with vaguely worded environmental protection provisions, such as those in the 123 Agreement, and the role of experts in this regard, the issue of civil nuclear liability, and the question of what international law might require for environmental impact assessments under the 123 Agreement to pass muster.

Type
Articles
Information
Asian Journal of International Law , Volume 2 , Issue 1 , January 2012 , pp. 1 - 19
Copyright
Copyright © Asian Journal of International Law 2011

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Footnotes

*

Lecturer in Law, University of Reading, United Kingdom. The author would like to thank Sandy Ghandhi, Christopher Hilson, James Green, Mark Wilde, Tan Hsien-Li, and the anonymous reviewers for their comments on an earlier draft of this article. The research for this article was conducted within the context of a three-year British Academy UK-South Asia Partnership grant that is studying “India, the 123 Agreement, and Nuclear Energy: Issues of International Law”, and that involves a team of scholars at the University of Reading and the Tamil Nadu Dr Ambedkar Law University, Chennai.

References

1. Agreement for Cooperation Between the Government of the United States of America and the Government of India Concerning Peaceful Uses of Nuclear Energy, 10 October 2008, online: 〈www.reading.ac.uk/web/FILES/123agreement/TEXT_123_AGREEMENT.pdf〉 [123 Agreement], art. 2(2).

2. CHIMNI, Bhupinder S., “International Law Scholarship in Post-Colonial India: Coping with Dualism” (2010) 23 Leiden Journal of International Law 23 at 46Google Scholar. In the context of international law, “dualism”, for Chimni, refers to the “double life of international law: the fact that it is an instrument of subjugation and also of liberation, exploitation and possible emancipation”, pp. 23–4.

3. Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, [2010] I.C.J. Rep. (20 April 2010), online: 〈www.icj-cij.org/docket/files/135/15877.pdf〉 [Pulp Mills]. See PAYNE, Cymie R., “Pulp Mills on the River Uruguay: The International Court of Justice Recognizes Environmental Impact Assessment as a Duty Under International Law” (2010) 14 ASIL Insight (22 April 2010), online: 〈www.asil.org/insights100422.cfm〉Google Scholar.

4. Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, 729 U.N.T.S. 161 (entered into force 5 March 1970) [Non-Proliferation Treaty]. On the nuclear non-proliferation regime under international law, see GARVEY, Jack I., “A New Architecture for the Non-Proliferation of Nuclear Weapons” (2007) 12 Journal of Conflict and Security Law 339Google Scholar; Lluis Maria DE PUIG, “Non-Proliferation International Legal Instruments on the 50th Anniversary of the IAEA” (2007) 1 Atoms for Peace: An International Journal 301Google Scholar; KUPPUSWAMY, Chamu, “Is the Nuclear Non-Proliferation Treaty Shaking at its Foundations? Stock-Taking After the 2005 NPT Review Conference” (2006) 11 Journal of Conflict and Security Law 141CrossRefGoogle Scholar.

5. SINGH, Jaswant, “Against Nuclear Apartheid” (1998) 77 Foreign Affairs 41CrossRefGoogle Scholar.

6. Non-Proliferation Treaty, supra note 4, art. 6. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. Rep 226 at 263–5 [Nuclear Weapons].

7. Mohamed EL BARADEI, “Rethinking Nuclear Safeguards”, Washington Post, 14 June 2006. See Mohamed Ibrahim SHAKER, “The Evolving International Regime of Nuclear Non-Proliferation” in Collected Courses of The Hague Academy of International Law, Vol. 321 (Leiden: Martinus Nijhoff Publishers, 2006), 181–182Google Scholar.

8. India-USA Joint Statement, Washington, DC, 18 July 2005, online: 〈www.dae.gov.in/jtstmt.htm〉.

9. Ibid.

10. Ibid.

11. Atomic Energy Act of 1954, 42 U.S.C. 2153, s. 123(a)(2).

12. The Hyde Act also allowed waivers of sections 128 and 129 of the Atomic Energy Act, ibid. See Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006 [Hyde Act], H.R. 5682, ss. 104(a)(2)–(3).

13. See ibid., at ss. 104(b)(1)–(7). See also SINGH, Bhuvanesh B., “The Hyde Act 2006: India's Nuclear Dilemma” (2007) 1 Atoms for Peace: An International Journal 307Google Scholar.

14. “Proposed Agreement for Cooperation Between the Government of the United States of America and the Government of India Concerning Peaceful Uses of Nuclear Energy”, Presidential Determination No. 2008-26, 10 September 2008, Federal Register Doc. E8-21978, online 〈http://edocket.access.gpo.gov/2008/pdf/E8-21978.pdf〉. See US Department of State, Report Pursuant to Section 104(c) of the Hyde Act Regarding Civil Nuclear Cooperation with India, 10 September 2008, online: 〈www.hcfa.house.gov/110/press091108d.pdf〉.

15. United States-India Nuclear Cooperation Approval and Non-Proliferation Enhancement Act of 2008, H.R. 7081.

16. On the complex process that led to the 123 Agreement's operationalization of the Joint Statement, see Jörn MÜLLER, “The Signing of the US-India Agreement Concerning Peaceful Uses of Nuclear Energy” (2009) 1 Göttingen Journal of International Law 179Google Scholar; Rajeswari Pillai RAJAGOPALAN, “Indo-US Nuclear Deal: Implications for India and the Global N-Regime”, Institute of Peace and Conflict Studies, 62 IPCS Special Report, December 2008; NTOUBANDI, Faustin Z., “Reflections on the USA-India Atomic Energy Co-Operation” (2008) 13 Journal of Conflict and Security Law 273CrossRefGoogle Scholar; Kesav Murthy WABLE, “The US-India Strategic Nuclear Partnership: A Debilitating Blow to the Non-Proliferation Regime” (2008) 33 Brooklyn Journal of International Law 719Google Scholar; WEISS, Leonard, “US-India Nuclear Cooperation: Better Later than Sooner” (2007) 14 Nonproliferation Review 429CrossRefGoogle Scholar; KIMBALL, Daryl G., “Introductory Note to the Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006 (P.L. 109-401)” (2007) 46 International Legal Materials 409Google Scholar; POTTER, William C., “India and the New Look of US Non-Proliferation Policy” (2005) 12 Nonproliferation Review 343CrossRefGoogle Scholar.

17. 123 Agreement, supra note 1, Preamble.

18. See ibid., art. 11.

19. Nuclear Weapons, supra note 6 at 241. See Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities, with Commentaries in International Law Commission, Report of the International Law Commission: Fifty-Eighth Session, UN Doc. A/61/10 (2006) [Principles on the Allocation of Loss, with Commentaries], at 122, Principle 2(b) (stating that the environment includes “natural resources, both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction between the same factors; and the characteristic aspects of the landscape”). See also FITZMAURICE, Malgosia A., “International Protection of the Environment” in Collected Courses of The Hague Academy of International Law, Vol. 293 (Leiden: Martinus Nijhoff Publishers, 2001), 22–27Google Scholar.

20. The United Nations General Assembly established the ILC in Resolution 174 (1947) as part of its mandate to “encourag[e] the progressive development of international law and its codification”. Charter of the United Nations, 24 October 1945, 1 U.N.T.S. XVI, art. 13(1)(a). See Statute of the International Law Commission, 21 November 1947, annex to GA Res. 174(II), UN Doc. A/RES/174(II) (1947), art. 1(1). On the ILC generally, see BOYLE, Alan and CHINKIN, Christine, The Making of International Law (Oxford: Oxford University Press, 2007) at 171–204Google Scholar. See also BIRNIE, Patricia, BOYLE, Alan, and Catherine REDGWELL, International Law and the Environment, 3rd ed. (Oxford: Oxford University Press, 2009) at 29–31Google Scholar.

21. On this already existing international treaty regime, see KISS, Alexandre, “State Responsibility and Liability for Nuclear Damage” (2006) 35 Denver Journal of International Law and Policy 67Google Scholar. See also NANDA, Ved P., “International Environmental Norms Applicable to Nuclear Activities, with Particular Focus on Decisions of International Tribunals and International Settlements” (2006) 35 Denver Journal of International Law and Policy 47Google Scholar; KAMMINGA, Menno T., “The IAEA Convention on Nuclear Safety” (1995) 44 International and Comparative Law Quarterly 872CrossRefGoogle Scholar.

22. Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries in International Law Commission, Yearbook of the International Law Commission, Vol. 2 (part 2), UN Doc. A/CN.4/SER.A/2001 (2001), 31–143 [Articles on Responsibility of States, with Commentaries].

23. Articles on Prevention of Transboundary Harm from Hazardous Activities, with Commentaries in International Law Commission, Yearbook of the International Law Commission, supra note 22 at 148–70 [Articles on Prevention of Transboundary Harm, with Commentaries]. See FITZMAURICE, Malgosia A., “International Responsibility and Liability” in Daniel BODANSKY, Jutta BRUNNÉE, and Ellen HEY, eds., The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007), 1010 at 1022–1024Google Scholar.

24. Principles on the Allocation of Loss, with Commentaries, supra note 19 at 110–82. Contrast with Institute of International Law, “Responsibility and Liability Under International Law for Environmental Damage”, Resolution of 4 September 1997, reproduced in (1998) 37 International Legal Materials 1474.

25. See Consideration of Prevention of Transboundary Harm from Hazardous Activities and Allocation of Loss in the Case of Such Harm, GA Res. 65/28, UN Doc. A/RES/65/28 (2010), paras. 1–2.

26. On the relevant treaty law framework related to civil liability and nuclear energy, see TEMPLE, Richard M., PENNY, Christina, and Mary Anne SULLIVAN, “Liability for Nuclear Incidents: Should the UK Now Follow the US Approach?” (2006) 18 Journal of Environmental Law 443 at 447–448CrossRefGoogle Scholar; BOYLE, Alan, “Globalising Environmental Liability: The Interplay of National and International Law” (2005) 17 Journal of Environmental Law 3 at 4CrossRefGoogle Scholar; Fitzmaurice, supra note 19 at 296–8; BOULANENKOV, Vladimir and BRANDS, Bram, “Nuclear Liability: Status and Prospects” (1988) 30 IAEA Bulletin 5Google Scholar.

27. Statute of the International Court of Justice, annexure to Charter of the United Nations, supra note 20, art. 38(1)(b).

28. See Boyle and Chinkin, supra note 20 at 197–200Google Scholar.

29. Birnie, Boyle, and Redgwell, supra note 20 at 141.

30. See ibid., at 321–2.

31. Sixth Committee, Summary Record of the 17th Meeting, UN Doc. A/C.6/65/SR.17 (2010), 2 [Sixth Committee Summary Record].

32. See ibid., at 2–3.

33. Ibid., at 4.

34. See ibid., at 3. Germany expressed a similar view earlier in 2010 in a response to United Nations Secretary General Ban Ki-moon. See Consideration of Prevention of Transboundary Harm from Hazardous Activities and Allocation of Loss in the Case of Such Harm, Report of the Secretary-General, UN Doc. A/65/184 (2010), 3.

35. See Sixth Committee Summary Record, supra note 31 at 5. It is interesting to note, though, that the definition of “nuclear damage” contained in Article 2(g) of India's own 2010 Civil Liability for Nuclear Damage Act is itself quite expansive. See Civil Liability for Nuclear Damage Act, Act No. 38 of 2010, online: 〈www.dae.gov.in/rules/civilnucliab.pdf〉.

36. Sixth Committee Summary Record, supra note 31 at 4.

37. Consideration of Prevention of Transboundary Harm from Hazardous Activities and Allocation of Loss in the Case of Such Harm, Addendum to the Report of the Secretary-General, UN Doc. A/65/184/Add.1 (2010), 1. For other views of states, see Report of the Secretary-General, supra note 34 at 1–7 (noting the views of Austria, Belarus, Germany, Mexico, the Netherlands, New Zealand, Panama, and Portugal).

38. In the past, the ICJ has done this, albeit only occasionally, with regard to the legal status of sets of ILC articles and principles that have not, at least not at the time of decision, been codified in treaty form. It did this with regard to Articles 4, 8, and 16 of the ILC's Articles on State Responsibility, for example, in its 2007 judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) [2007] I.C.J. Rep. 43.

39. See Pulp Mills, supra note 3, para. 152.

40. For a critical view on the posited distinction between progressive development and codification, see Boyle and Chinkin, supra note 20 at 174–5.

41. See Pierre-Marie DUPUY, “Formation of Customary International Law and General Principles” in Bodansky, Brunnée, and Hey, supra note 23 at 449, 453 (commenting upon this scholarly tendency).

42. Ibid., at 462.

43. As Dupuy notes, some of international environmental law's most fundamental concepts “should be viewed in terms of their normative potential rather than from the formal perspective of their legal status”. Ibid. See BODANSKY, Daniel, “Customary (and not so Customary) International Environmental Law” (1995) 3 Indiana Journal of Global Legal Studies 105Google Scholar.

44. For an overview of the ICJ's case-law and international environmental law, see Birnie, Boyle, and Redgwell, supra note 20 at 138–40; Edith BROWN WEISS, “Opening the Door to the Environment and to Future Generations” in Laurence BOISSON DE CHAZOURNES and Philippe SANDS, eds., International Law, the International Court of Justice and Nuclear Weapons (Cambridge: Cambridge University Press, 1999)Google Scholar 338 (particularly emphasizing Nuclear Weapons, supra note 6).

45. Corfu Channel (United Kingdom v Albania), Merits, [1949] I.C.J. Rep. 4 at 22 (stating as a “general and well-recognized principle[] […] every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”).

46. Nuclear Weapons, supra note 6 at 241–2 (recognizing that “[t]he existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment”).

47. Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, [1997] I.C.J. Rep. 7 [Gabčíkovo-Nagymaros] at 78 (stating that, “in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage”).

48. Pulp Mills, supra note 3, para. 101. Other principles of law could also be cited on this point, such as the statement in Trail Smelter that, “under the principles of international law, as well as of the law of the United States, 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 or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence”. Trail Smelter Arbitral Tribunal, Decision, Reported on 11 March 1941, to the Government of the United States of America and to the Government of the Dominion of Canada, Under the Convention Signed 15 April 1935, reproduced in (1941) 35 American Journal of International Law 684 at 716. For an overview, see Jon M. VAN DYKE, “Liability and Compensation for Harm Caused by Nuclear Activities” (2006) 35 Denver Journal of International Law and Policy 13 at 13–17. See also Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Rejoinder of Uruguay, 29 July 2008, online: 〈www.icj-cij.org/docket/files/135/15432.pdf〉, at 301–4.

49. Articles on Prevention of Transboundary Harm, with Commentaries, supra note 23 at 149, art. 1.

50. See ibid., at 150. See also Articles on Responsibility of States, with Commentaries, supra note 22 at 34, art. 2.

51. Articles on Prevention of Transboundary Harm, with Commentaries, supra note 23 at 150.

52. Ibid., at 151. See Günther HANDL, “Transboundary Impacts” in Bodansky, Brunnée, and Hey, supra note 23, 531 at 537–8.

53. See Articles on Prevention of Transboundary Harm, with Commentaries, supra note 23 at 151.

54. Ibid., at 153, art. 3. See Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (No. 17), Advisory Opinion, [2011] ITLOS (1 February 2011), online: 〈www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/adv_op_010211.pdf〉, para. 116 [No. 17].

55. Articles on Prevention of Transboundary Harm, with Commentaries, supra note 23 at 154. See further commentary on this point at 153–5.

56. Ibid., at 155.

57. Ricardo PISILLO MAZZESCHI, “The Due Diligence Rule and the Nature of the International Responsibility of States” (1992) 35 German Yearbook of International Law 9 at 41Google Scholar. On the due diligence principle and international environmental law, see pp. 36–41. See also BARNIDGE, Robert P., “The Due Diligence Principle Under International Law” (2006) 8 International Community Law Review 81CrossRefGoogle Scholar. The International Tribunal for the Law of the Sea (ITLOS) heavily referred to the due diligence principle in No. 17, supra note 54.

58. See Articles on Prevention of Transboundary Harm, with Commentaries, supra note 23 at 155, art. 4. On the duty to co-operate under international environmental law, see Van Dyke, supra note 48 at 20–3.

59. See Articles on Prevention of Transboundary Harm, with Commentaries, supra note 23 at 156–7, arts. 6–7. See also KNOX, John H., “The Myth and Reality of Transboundary Environmental Impact Assessment” (2002) 96 American Journal of International Law 291 at 308–311CrossRefGoogle Scholar. On environmental impact assessments generally under international environmental law, see David A. WIRTH, “Hazardous Substances and Activities” in Bodansky, Brunnée, and Hey, supra note 23, 394 at 420–1; Ulrich BEYERLIN, “Different Types of Norms in International Environmental Law: Policies, Principles, and Rules” in Bodansky, Brunnée, and Hey, supra note 23 at 425, 439–40.

60. See Articles on Prevention of Transboundary Harm, with Commentaries, supra note 23 at 159, art. 8.

61. See ibid., at 160, arts. 9(1)–(2). On the factors that states concerned must consider, see pp. 161–2, art. 10.

62. Ibid., at 160, art. 9(3).

63. Ibid., at 164, art. 11(1).

64. See ibid., at 164, art. 11.

65. See ibid., at 164, art. 12.

66. See ibid., at 165, art. 13.

67. See ibid., at 169, art. 17.

68. See International Atomic Energy Agency [IAEA], Declaration by the IAEA Ministerial Conference on Nuclear Safety in Vienna on 20 June 2011, IAEA Information Circular, 20 June 2011, INFCIRC/821, online: 〈www.iaea.org/Publications/Documents/Infcircs/2011/infcirc821.pdf〉. See also IAEA, IAEA International Fact Finding Expert Mission of the Fukushima Dai-ichi NPP Accident Following the Great East Japan Earthquake and Tsunami (24 May–2 June 2011), Report to IAEA Member States, 16 June 2011, online: 〈www-pub.iaea.org/MTCD/Meetings/PDFplus/2011/cn200/documentation/cn200_Final-Fukushima-Mission_Report.pdf〉.

69. It is interesting to note that the Commentaries only infrequently “flag up” civil nuclear energy activities as such. For an exception to this general trend, dealing with nuclear waste, see Articles on Prevention of Transboundary Harm, with Commentaries, supra note 23 at 165.

70. Principles on the Allocation of Loss, with Commentaries, supra note 19 at 140, Principle 3.

71. See ibid., at 121–2, principle 2(a). On a trend away from a property-centric notion of damages under international environmental law, see Birnie, Boyle, and Redgwell, supra note 20 at 532.

72. Principle 2(g) defines an operator as “any person in command or control of the activity at the time the incident causing transboundary damage occurs”, and the Commentaries make clear that the test is a functional one, namely who, or what, uses, controls, and directs the object at the relevant moment in time. See Principles on the Allocation of Loss, with Commentaries, supra note 19 at 154–5. Contrast with Convention on Supplementary Compensation for Nuclear Damage, 12 September 1997, online: 〈www.iaea.org/Publications/Documents/Infcircs/1998/infcirc567.pdf〉, Annex, art. 1(d) (defining an operator as, “in relation to a nuclear installation, […] the person designated or recognized by the Installation State as the operator of that installation”).

73. The baseline remedies that are mandated must be, to quote Principle 6, “prompt, adequate and effective”, and there are some parallels to be drawn in this respect with the law of diplomatic protection. On the law of diplomatic protection, see Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, [2007] (24 May 2007), online: 〈www.icj-cij.org/docket/files/103/13856.pdf〉.

74. Articles on Prevention of Transboundary Harm, with Commentaries, supra note 23 at 152, art. 2(d) (emphasis added).

75. Principles on the Allocation of Loss, with Commentaries, supra note 19 at 122, Principle 2(d) (emphasis added).

76. See GOU Haibo, “ILC Proposal on the Role of Origin State in Transboundary Damage” in Michael FAURE and SONG Ying, eds., China and International Environmental Liability: Legal Remedies for Transboundary Pollution (Cheltenham: Edward Elgar, 2008), 107 at 120–125Google Scholar. Contrast with Sixth Committee Summary Record, supra note 31 at 5–6 (statement by China).

77. Corfu Channel, supra note 45 at 18.

78. See ibid.

79. See Principles on the Allocation of Loss, with Commentaries, supra note 19 at 151, Principle 4(2).

80. See ibid., at 155–8. See Boyle, supra note 26 at 13–14.

81. See Van Dyke, supra note 48 at 23–33.

82. See Birnie, Boyle, and Redgwell, supra note 20 at 516–20; Boyle, supra note 26 at 6–8. Pisillo Mazzeschi phrases the fundamental distinction under international law generally as being between “obligations de résultat (qu'il vaudrait peut-être mieux appeler obligations de résultat immédiat) et obligations de due diligence (ou de moyens ou de comportement)”. PISILLO MAZZESCHI, Ricardo, “Responsabilité de l’État pour violation des obligations positives relatives aux droits de l'homme” in Collected Courses of The Hague Academy of International Law, Vol. 333 (Leiden: Martinus Nijhoff Publishers, 2008), 282–283Google Scholar.

83. See Principles on the Allocation of Loss, with Commentaries, supra note 19 at 166, Principle 5(a).

84. Ibid., at 166, Principle 5(b).

85. See ibid., at 166, Principle 5(c). States affected and states likely to be affected also have certain obligations in this regard. See ibid., at 166, Principle 5(d).

86. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980), art. 31(1). Both the ICJ and the ITLOS have held that this article reflects customary international law. See Avena and Other Mexican Nationals (Mexico v. United States), Judgment, [2004] I.C.J. Rep. 12 at 48; No. 17, supra note 54, para. 57.

87. See 123 Agreement, supra note 1, art. 15. For broad parameters as to how negotiations must be conducted under international law, see North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. the Netherlands), Judgment, [1969] I.C.J. Rep. 3 at 46–8.

88. ABBOTT, Kenneth W., KEOHANE, Robert O., MORAVCSIK, Andrew, SLAUGHTER, Anne-Marie, and Duncan SNIDAL, “The Concept of Legalization” (2000) 54 International Organization 401 at 409Google Scholar.

89. See Articles on Prevention of Transboundary Harm, with Commentaries, supra note 23 at 152–3.

90. Ibid., at 151–2, art. 2(a).

91. Ibid., at 151.

92. On the precautionary principle and customary international law, see MCINTYRE, Owen and MOSEDALE, Thomas, “The Precautionary Principle as a Norm of Customary International Law” (1997) 9 Journal of Environmental Law 221Google Scholar. On the interlinked nature of prevention and the precautionary principle, see Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Separate Opinion of Judge Cançado Trindade, [2010], online: 〈www.icj-cij.org/docket/files/135/15885.pdf〉, para. 95 [Pulp Mills, Separate Opinion of Cançado Trindade]. See also No. 17, supra note 54, paras. 125–35.

93. See Articles on Prevention of Transboundary Harm, with Commentaries, supra note 23 at 152.

94. Article 41 states: “Without prejudice to the functions assigned to the Commission in this respect, the parties undertake: (a) to protect and preserve the aquatic environment and, in particular, to prevent its pollution, by prescribing appropriate rules and [adopting appropriate] measures in accordance with applicable international agreements and in keeping, where relevant, with the guidelines and recommendations of international technical bodies; (b) not to reduce in their respective legal systems: 1. the technical requirements in force for preventing water pollution, and 2. the severity of the penalties established for violations; (c) to inform one another of any rules which they plan to prescribe with regard to water pollution in order to establish equivalent rules in their respective legal systems.” Reproduced in Pulp Mills, supra note 3, para. 190.

95. Ibid., para. 199.

96. On soft law and nuclear risks, see Boyle and Chinkin, supra note 20 at 218–19.

97. See Handl, supra note 52 at 538.

98. SAID, Edward W., Representations of the Intellectual: The 1993 Reith Lectures (New York: Pantheon Books, 1994) at 77Google Scholar.

99. Pulp Mills, Separate Opinion of Cançado Trindade, supra note 92, para. 82.

100. See Pulp Mills, supra note 3, para. 168. See also para. 236. For a critique of Pulp Mills in this regard, see Juan Guillermo SANDOVAL COUSTASSE and Emily SWEENEY-SAMUELSON, “Adjudicating Conflicts Over Resources: The ICJ's Treatment of Technical Evidence in the Pulp Mills Case” (2011) 3 Göttingen Journal of International Law 447Google Scholar.

101. For an example of the former, see Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Separate Opinion of Judge Keith, [2010], online: 〈www.icj-cij.org/docket/files/135/15881.pdf〉. For an example of the latter, see Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, [2010], online: 〈www.icj-cij.org/docket/files/135/15879.pdf〉 [Pulp Mills, Dissenting Opinion of Al-Khasawneh and Simma].

102. Pulp Mills, Dissenting Opinion of Al-Khasawneh and Simma, supra note 101, para. 23.

103. See DESAI, Ronak D., “Nuclear Liability Issue Remains Key Challenge As Obama Visits India” Harvard National Security Journal (6 November 2010)Google Scholar, online: 〈http://harvardnsj.com/2010/11/nuclear-liability-issue-remains-key-challenge-as-obama-visits-india/〉; Jayshree BAJORIA, “India's Nuclear Liability Dilemma”, Interview with Ashley J. Tellis, Senior Associate, Carnegie Endowment for International Peace, Council on Foreign Relations (4 November 2010), online: 〈www.cfr.org/international-peace-and-security/indias-nuclear-liability-dilemma/p23305〉; Amol SHARMA, “India Weighs Measure to Ease Nuclear Liability Law” Wall Street Journal (11 October 2010); YARDLEY, Jim, “India Passes Nuclear Deal” New York Times (30 August 2010)Google Scholar.

104. Civil Liability for Nuclear Damage Act, supra note 35, s. 17(b). Section 17's other rights of recourse, in clauses (a) and (c), seem to be less problematic: clause (a) allows for a right of recourse when the parties to a contract expressly agree to it in writing; and clause (c) applies in the, one would hope, extremely rare situation in which a nuclear incident results from an “act of commission or omission of an individual done with the intent to cause nuclear damage”.

105. See Pulp Mills, supra note 3, para. 204. The ITLOS has also made this point. See No. 17, supra note 54, para. 145. See also Knox, supra note 59 at 296 (making this point in 2002). It is worth noting that as early as 1995 ICJ Judge Weeramantry was of the view that the “principle [of environmental impact assessment] is gathering strength and international acceptance, and has reached the level of general recognition at which this Court should take notice of it”. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, Order, Dissenting Opinion of Judge Weeramantry, [1995] I.C.J. Rep 288 at 344.

106. Pulp Mills, supra note 3, para. 205. See No. 17, supra note 54, paras. 141–50.

107. Convention on Environmental Impact Assessment in a Transboundary Context, 25 February 1991, 1989 U.N.T.S. 309 (entered into force 10 September 1997) [Espoo Convention]

108. Pulp Mills, supra note 3, para. 205.

109. Constitution of India, online: 〈http://india.gov.in/govt/constitutions_of_india.php〉, art. 47.

110. Ibid., art. 48A.

111. This, of course, is the concept of sustainable development. On sustainable development under international law, see Pulp Mills, Cançado Trindade Separate Opinion, supra note 92, paras. 132–40; Gabčíkovo-Nagymaros, supra note 47 at 88–111 (per Judge Weeramantry, Separate Opinion); Beyerlin, supra note 59 at 425, 443–5. On sustainable development in the jurisprudence of the Supreme Court of India, see Maharashtra Land Development Corporation and Ors. v. State of Maharashtra and Anr., Civil Appeal Nos. 2147 and 2148 of 2004, Supreme Court of India, Judgment, 11 November 2010, paras. 27–9. Beyerlin refers to sustainable development as the “worldwide governing political leitmotiv for environment and development”. BEYERLIN, Ulrich, “Sustainable Development” in Rüdiger WOLFRUM, ed., Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2010)Google Scholar, para. 6.