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Some Legal Problems Concerning the Protection of the Human Environment*

Published online by Cambridge University Press:  12 February 2016

Edvard Hambro
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Extract

I am very happy and very honoured to have been invited to give the inaugural lecture in the series under the Sir Hersch Lauterpacht Chair of Public International Law at the Hebrew University of Jerusalem. It is a great honour to be connected with the name of Hersch Lauterpacht who was one of the truly great minds in the field of international law in our epoch, great as a scholar, great as an idealist, an innovator and a prophet; and it is a source of happiness to me to bear witness to the fact that he was also a great human being whose wisdom was illuminated with kindness and warmth. His friends and pupils remember him with love and gratitude.

For the purpose of this paper I invite you to accept with me the proposition that we live in an ecological crisis. The extent of the dangers confronting us is in dispute. The degree of urgency is debated. There are still serious gaps in our knowledge. The task of the scientists is enormous. Still, no one can ignore the existence of this crisis.

“The two worlds of man, the biosphere of his inheritance, the technosphere of his creation—are out of balance, indeed potentially in deep conflict. And man is in the middle. This is the hinge of history at which we stand, the door of the future opening on to a crisis more sudden, more global, more inescapable and more bewildering than any ever encountered by the human species and one which will take decisive shape within the life span of children who are already born.”

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Articles
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Israel Law Review , Volume 12 , Issue 1 , January 1977 , pp. 1 - 14
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1977

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References

1 Ward, Barbara and Dubos, René, Only One Earth, the Care and Maintenance of a Small Planet (prepared for the Stockholm Conference, 1972) 47.Google Scholar

2 See infra n. 20.

3 Collections of national statutes and international treaties are being gathered by different organizations. I do not include any bibliography simply because the literature is already so vast that it would be a work of Sisyphus.

4 See Hambro, , “The Human Environment, Stockholm and After” in (1974) 28 The Year Book of World Affairs 204.Google Scholar

5 Ot. prp. nr. 51 (1974–1975). Lov om Produktkontroll.

6 See here the interesting document: St. meld. nr. 44 (1975–76) Tiltak mot forurensinger.

7 Prp. 119, (1973/1974).

8 For further discussion see U.S. Department of State, “Statement on Proposed Canadian Legislation on the Law of the Sea” (1970) Am. J.I.L. 928–932Google Scholar; L. Henkin, “Arctic Anti-Pollution: Does Canada Make or Break International Law?” (1971) ibid. 131–136; A. Gotlieb and C. Dalfen, “National Jurisdiction and International Responsibility” (1973) ibid. 229–258. See also Morin, J. Y., “Le progrès technique, la pollution et l'évolution récente du droit de la mer au Canada” in (1970) Canadian Yearbook of International Law 188–248Google Scholar; J. A. Beesley, “The Canadian Approach to International Environmental Law” (1973) ibid. 3–12; R. S. Reid, “The Canadian Claim to Sovereignty Over the Waters of the Arctic” (1974) ibid. 111–136. And see also “Canadian Legislation on Arctic Pollution and Territorial Sea and Fishing Zones” (1970) International Legal Materials 543–554; “Documents Concerning Canadian Legislation on Arctic Pollution and Territorial Sea and Fishing Zones” ibid. 598–615.

9 See (1974–1975) I.C.J. Yearbook 53.

10 See here the interesting and illuminating article by Kiss, Alexander-Ch. in (1975) 102 Journal du Droit international, (Clunet) 207 ff.Google Scholar

11 (1949) I.C.J. Reports 22.

12 U.N.R.I.A.A. III, p. 1965.

13 A very useful (although formally restricted) list prepared by the Economic Commission for Europe is entitled “List of Treaties, Conventions and Agreements Concerning Environmental Problems of Large Areas, ENV/R. 35 of 2 October 1975.

14 St. prp. nr. 22 (1974–75) om saratykke til ratifikasjon av miljovernkonvensjon mellom Norge, Danmark, Finland og Sverige, undertegnet i Stockholm den 19. februar 1974.

15 The Barcelona Conference terminated its work on 16 February, and 12 of the participating States signed the draft convention and Protocol. Press Release UNEP/87. Published in (1975) International Legal Materials 481–503.

16 One can refer here to the two unsolved cases about Nuclear Tests between New Zealand and France (1974) I.C.J. Reports 253 ff.

17 “Nuclear weapons test.

The United Nations Conference on the Human Environment.

Considering that there is radioactive contamination of the environment from nuclear weapon tests,

Taking into account the reports of the United Nations Scientific Committee on the Effects of Atomic Radiation,

Believing that all exposures of mankind to radiation should be kept to the minimum possible and should be justified by benefits that would otherwise not be obtained,

Considering that the United Nations has endorsed world treaties such as the Partial Test Ban Treaty and the Sea-Bed Denuclearization Treaty and regional treaties such as the Tlatelolco Treaty for the Denuclearization of Latin America, and has repeatedly called for the cessation of nuclear weapons tests,

Resolves:

(a) To condemn nuclear weapons tests, especially those carried out in the atmosphere;

(b) To call upon those States intending to carry out nuclear weapons tests to abandon their plans to carry out such tests since they may lead to further contamination of the environment”.

18 “Art. 6. 1. A coastal State has a special interest in the maintenance of the living resources in any area of the high seas adjacent to its territorial sea.

2. A coastal State is entitled to take part on an equal footing in any system of research and regulation for purposes of conservation of the living resources of the high seas in that area, even though its nationals do not carry on fishing there.

3. A State whose nationals are engaged in fishing in any area of the high seas adjacent to the territorial sea of a State shall, at the request of that coastal State, enter into negotiations with a view to prescribing by agreement the measures necessary for the conservation of the living resources of the high seas in that area.

4. A State whose nationals are engaged in fishing in any area of the high seas adjacent to the territorial sea of a coastal State shall not enforce conservation measures in that area which are opposed to those which have been adopted by the coastal State, but may enter into negotiations with the coastal State with a view to prescribing by agreement the measures necessary for the conservation of the living resources of the high seas in that area.

5. If the States concerned do not reach agreement with respect to conservation measures within twelve months, any of the parties may initiate the procedure contemplated by article 9.

Art. 7. 1. Having regard to the provisions of paragraph 1 of article 6, any coastal State may, with a view to the maintenance of the productivity of the living resources of the sea, adopt unilateral measures of conservation appropriate to any stock of fish or other marine resources in any area of the high seas adjacent to its territorial sea, provided that negotiations to that effect with the other States concerned have not led to an agreement within six months.

2. The measures which the coastal State adopts under the previous paragraph shall be valid as to other States only if the following requirements are fulfilled:

(a) That there is a need for urgent application of conservation measures in the light of the existing knowledge of the fishery;

(b) That the measures adopted are based on appropriate scientific findings;

(c) That such measures do not discriminate in form or in fact against foreign fishermen.

3. These measures shall remain in force pending the settlement, in accordance with the relevant provisions of this Convention, of any disagreement as to their validity.

4. If the measures are not accepted by the other States concerned, any of the parties may initiate the procedure contemplated by article 9. Subject to paragraph 2 of article 10, the measures adopted shall remain obligatory pending the decision of the special commission.

5. “The principles of geographical demarcation as defined in article 12 of the Convention on the Territorial Sea and the Contiguous Zone shall be adopted when coasts of different States are involved.”.

19 “In cases of extreme urgency requiring measures to be taken immediately, the coastal State may take measures rendered necessary by the urgency of the situation, without prior notification or consultation or without continuing consultations already begun.”.

20 See e.g. following statement from the Final Act of the Conference on Security and Co-operation in Europe, 1975. “To develop through international co-operation an extensive programme for the monitoring and evaluation of the long-range transport of air pollutants, starting with sulphur dioxide and with possible extension to other pollutants, and to this end to take into account basic elements of a co-operation programme which were identified by the experts who met in Oslo in December 1974 at the invitation of the Norwegian Institute of Air Research”. (1975) International Legal Materials 1309.

21 P.C.I.J. Ser. A. No. 1, p. 25.

22 P.C.I.J. Ser. B. No. 17, p. 32.

23 P.C.I.J. Ser. A/B. No. 44, p. 24.

24 P.C.I.J. Ser. B. No. 4, pp. 23–24.