Principles of international environmental law

Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW Second edition This second edition of Philippe Sands’ leading textbook on international environmental law provides a clear and authoritative introduction to the subject, revised to 1 January 2003. It updates existing topics and addresses important new topics, such as the Kyoto Protocol, genetically modified organisms, and foreign investment and environmental protection. It will remain the most comprehensive account of the international principles and rules relating to environmental protection and the conservation of natural resources. In addition to the key material from the 1992 Rio Conference and the 2002 Johannesburg Conference and subsequent developments, Sands covers topics including the legal and institutional framework, the field’s historic development and standards for general application. This will continue to be an invaluable resource for students, scholars and practitioners. Philippe Sands QC is Professor of Laws and Director of the Centre for International Courts and Tribunals at University College London. He was a co-founder of FIELD (Foundation for International Environmental Law and Development), and as Legal Director established programmes on Climate Change and Sustainable Development. As a practising barrister Professor Sands has extensive experience litigating cases before the International Court of Justice, the International Tribunal for the Law of the Sea, the WTO Dispute Settlement Body, and the World Bank’s International Centre for Settlement of Investment Disputes. He also frequently acts as an advisor to governments, international organisations and non-state actors on aspects of international law. © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW Second edition PHILIPPE SANDS QC Professor of Laws and Director, Centre for International Courts and Tribunals, University College London Barrister-at-Law, Middle Temple © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information published by the press syndicate of the university of cambridge The Pitt Building, Trumpington Street, Cambridge, United Kingdom cambridge university press The Edinburgh Building, Cambridge CB2 2RU, UK 40 West 20th Street, New York, NY 10011–4211, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia Ruiz de Alarcón 13, 28014 Madrid, Spain Dock House, The Waterfront, Cape Town 8001, South Africa http://www.cambridge.org
C Philippe Sands 2003 This book is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. C Philippe Sands 1995. First published 1995 by Manchester University Press and
Reprinted 2004 Printed in the United Kingdom at the University Press, Cambridge Typeface Minion 10/12 pt. System LATEX 2ε [tb] A catalogue record for this book is available from the British Library Library of Congress cataloguing in publication data Sands, Philippe, 1960– Principles of international environmental law / Philippe Sands. – 2nd ed. p. cm. Rev. ed. of: Principles of international environmental law. c1994–c1995. Includes bibliographical references and index. ISBN 0-521-81794-3 (hb.) – ISBN 0-521-52106-8 (pb.) 1. Environmental law, International. I. Principles of international environmental law. II. Title. K3585.S265 2003 341.7′ 62 – dc21 2003046122 ISBN 0 521 81794 3 hardback ISBN 0 521 52106 8 paperback The publisher has used its best endeavours to ensure that the URLs for external websites referred to in this book are correct and active at the time of going to press. However, the publisher has no responsibility for the websites and can make no guarantee that a site will remain live or that the content is or will remain appropriate. © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information For Natalia © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information CONTENTS Foreword page xiii Preface and acknowledgments to the first edition xvii Preface and acknowledgments to the second edition xxiv Table of cases Table of treaties and other international instruments List of abbreviations part i xxi xxxv cxxiv The legal and institutional framework 1 The environment and international society: issues, concepts and definitions 3 The environmental challenge 3 The basis for decision-making: science, economics and other values 5 The international legal order 11 The environment and international law: defining terms 15 Further reading 18 2 History 25 Introduction 25 From early fisheries conventions to the creation of the United Nations 26 From the creation of the United Nations to Stockholm: 1945–1972 30 From Stockholm to Rio: 1972–1992 40 UNCED 52 Beyond UNCED: trends and directions 63 Conclusions 69 vii © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information viii contents 3 Governance: states, international organisations and non-state actors 70 Introduction 70 States 71 International organisations Non-state actors 112 Conclusions 120 72 4 International law-making and regulation Introduction 123 Treaties 125 Other international acts 140 Customary international law 143 General principles of international law Subsidiary sources 153 Introduction to regulatory approaches Direct regulation 155 Economic instruments 158 Integrated pollution control 167 Conclusions 169 123 150 154 5 Compliance: implementation, enforcement, dispute settlement 171 Introduction 171 Implementation 174 International enforcement 182 International conflict resolution (settlement of disputes) UNCED 225 Conclusions 227 part ii 200 Principles and rules establishing standards 6 General principles and rules 231 Introduction 231 Sovereignty over natural resources and the responsibility not to cause damage to the environment of other states or to areas beyond national jurisdiction 235 Principle of preventive action 246 Co-operation 249 Sustainable development 252 Precautionary principle 266 Polluter-pays principle 279 © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information ix contents Principle of common but differentiated responsibility Conclusions 289 7 Human rights and armed conflict International human rights War and armed conflict Conclusions 316 8 Atmosphere 285 291 291 307 317 Introduction 317 Urban and transboundary air pollution Ozone depletion 342 Climate change 357 Outer space 382 UNCED 385 Conclusions 389 9 Oceans and seas 322 391 Introduction 391 The treaty regime 395 Pollution by dumping 415 Pollution from land-based sources including through the atmosphere 427 Pollution from vessels 438 Pollution from seabed activities 445 Environmental emergencies 448 Liability and compensation 454 UNCED 455 Conclusions 457 10 Freshwater resources 459 Introduction 459 Customary law 461 Regional rules 477 UNCED and WSSD 494 Conclusions 497 11 Biological diversity 499 Introduction 499 General instruments of global application 505 General instruments of regional and sub-regional application Regulation of particular habitats or species 543 Conclusions 615 © Cambridge University Press 523 www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information x contents 12 Hazardous substances and activities 618 Introduction 618 Accident prevention, preparedness and response 620 Chemicals, pesticides and other dangerous substances 625 The working environment 638 Radioactive substances 641 Biotechnology 651 Other hazardous activities 662 UNCED and WSSD 670 Conclusions 673 13 Waste 675 Introduction 675 Prevention and treatment 681 Disposal 684 Recycling and re-use 688 International movement (including trade) in waste UNCED 705 Conclusions 708 14 The polar regions: Antarctica and the Arctic Introduction 711 The Antarctic Treaty regime The Arctic 727 Conclusions 730 690 710 712 15 European Community environmental law 732 Introduction 732 Sources and institutions 734 Historical development 740 Principles and rules 749 Conclusions 794 part iii Techniques for implementing international principles and rules 16 Environmental impact assessment Introduction 799 Non-binding instruments 801 Treaties and other binding instruments Conclusions 824 © Cambridge University Press 799 803 www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information xi contents 17 Environmental information 826 Introduction 826 Information exchange 829 Reporting and provision of information 832 Consultation 838 Notification of emergency situations 841 Monitoring and other information gathering 847 Access to environmental information 852 Public education and awareness 859 Eco-labelling 860 Eco-auditing and accounting 862 Conclusions 866 18 Liability for environmental damage 869 Introduction 869 State liability 871 Civil liability for environmental damage under international law Conclusions 938 19 International trade and competition 904 940 Introduction 940 Trade measures in international environmental agreements Unilateral environmental measures and international trade Competition and subsidies 1010 Conclusions 1017 942 946 20 Financial resources, technology and intellectual property 1020 Introduction 1020 Financial resources and mechanisms 1021 Technology transfer and technical assistance Intellectual property 1043 Conclusions 1053 21 Foreign investment 1037 1056 Introduction 1056 Investment treaties 1057 Insurance 1071 Conclusions 1072 Index © Cambridge University Press 1074 www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information FOREWORD It is with pleasure that I write a foreword to this timely exposition and analysis of the system of environmental law as a whole, and as it stands after the Rio Conference. If it seems a little bold to call environmental law a ‘system’, it is assuredly not so bold as it would have been before the publication of Philippe Sands’ important work. A main purpose of academic writing should be to perceive and portray patterns and relations in a body of legal rules so as to make it manageable, teachable, comprehensible and usable. The present work succeeds in doing this to a remarkable degree. The author’s statement that environmental law has a ‘longer history than some might suggest’ might be thought to border on understatement. When something is taken up as a modish ‘concern’, there is often a strong temptation to think of it as a discovery by a newly enlightened generation. It is, therefore, a useful antidote to be reminded that, of the two pioneering decisions, both still leading and much-cited cases, one was the Bering Sea arbitration, of a century ago, and the other, the Trail Smelter arbitration, of half a century ago. Nevertheless, the present-day need for law to protect the environment and to preserve resources is of a scale and urgency far beyond the imagining of the early pioneers. Seeing these questions, however, in a proper historical perspective does help to warn against the dangers of treating environmental law as a specialisation, which can be made a separate study; or, on the other hand, of regarding environmental law – and here I borrow Philippe’s words – as a ‘marginal part of the existing legal order’. A perusal of this book will readily reveal to the reader the fallacy of both of these attitudes. Part I of the book – which is entitled ‘The legal and institutional framework’ – comprises illuminating treatments of such basic subjects of international law as the legal nature of states, international organisations, non-governmental organisations, treaties and other international acts such as resolutions of the General Assembly and other international bodies, EC regulations and directives, the nature and uses of customary law, the general principles of law, and general problems of compliance, implementation and enforcement, and dispute settlement. These pages amply demonstrate that the environmental lawyer has to be equipped with a good basic knowledge of general international law before he can even get properly started on the study xiii © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information xiv foreword of environmental law. Likewise, the general student of international law will, in these pages, find illumination in plenty on these basic questions of general public international law; and indeed also of EC law. He will also find, in the later pages, valuable light upon such difficult questions as ‘sovereignty over natural resources’, the actio popularis, ‘standards’ and ‘soft law’; techniques to encourage compliance, such as reporting; the position in war and armed conflict; general principles of liability and reparation, as well as specifically environmental notions such as the so-called ‘polluter pays’ principle. It is in Part II of the book that the author broaches the immense task of setting out, and analysing in some detail, the developing substantive law for the protection of the environment and for the conservation of resources, and of biological diversity. Here, again, when it comes to classifying the areas for purposes of exposition, some of the general headings are familiar to every international lawyer: the atmosphere and outer space; oceans and seas; freshwater resources; hazardous substances and activities; waste; the polar regions; and European Community environmental law. It is in itself a valuable lesson to be able thus to see the shape and dimensions of environmental law as a whole. To establish the boundaries of a subject is an important step towards its intellectual comprehension. It is a trite observation that environmental problems, though they closely affect municipal laws, are essentially international; and that the main structure of control can therefore be no other than that of international law. Yet one result of this study of environmental law as a whole is to show that the environmental factor has already so infiltrated so many of the traditional areas of public international law that it is no longer possible adequately to study many of the main headings of public international law without taking cognisance of the modifying influence in that particular respect of the principles, laws and regulations of environmental law. There are many instances; one that might not be the first possibility that comes to mind is the law concerning foreign investment. Many readers will remember the controversies of the 1960s and 1970s over the efforts to strike some sort of balance between the principle of national sovereignty over a nation’s natural resources, and the competing principles limiting the sovereign rights of expropriation without proper compensation for the foreign investment in those resources. At the present time, this is an area of the law which can no longer be appreciated without adding the considerable factor of the need to protect the environment and therefore the need to limit certain kinds of exploitation, whether foreign or domestic, which cause international waste and harm. The problem of the destruction of tropical rainforests is probably the most dramatic and best known example of a national resource itself becoming an international problem. Another matter that needs to be thought about is how to make the law of the environment more efficient. The existing principles, laws, case law, regulations, standards, resolutions and so on, already constitute a vast and complicated © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information foreword xv apparatus of paper and of powers conferred upon certain bodies or persons. When it is considered that the existing law is, however, also seemingly quite inadequate to the problem and that much more may be needed, one is bound to ask questions about how much of the world’s resources, wealth, energy and intellect is to be spent on this task of regulation and control. Pollution resulting from an excess of the complication and sheer number of laws, regulations and officials is by no means the least of the threats to our living environment. This book is an important first step towards rationalisation, for it does, by its very able and effective exposition, enable one to see the dimensions of the problem and to get some sort of conspectus of the existing legal apparatus. Another matter of concern is the need to keep laws and regulations in this area reasonably flexible and open when necessary to changes of direction. Good laws on the environment are driven, or should be driven, by the lessons to be learned from the natural sciences and from technology. But scientists are not by any means always in agreement. It is reasonable to assume, moreover, that the enormous sums spent upon further scientific and technological research imply that the scene of scientific ‘fact’ is liable to change importantly and even suddenly; for, if not, it is difficult to see what this expensive endeavour is about. For an example of this kind of effect, it is necessary only to mention how new scientific knowledge of the dangers from dioxins have put into a wholly new perspective erstwhile schemes for conserving non-renewable sources of energy using instead the combustion of mixed wastes. We need, therefore, a law of the environment that can change with the changes in the scientific world; otherwise it will quickly and most damagingly be enforcing outmoded science. But to achieve change in international regulations, without thereby merely adding more layers of regulation, is technically by no means an easy task or even always a possible one. But the matter goes deeper than these preoccupations, important as they are. Humanity is faced with a multifaceted dilemma. There seems to be an urgent need for more and more complex regulation and official intervention; yet this is, in our present system of international law and relations, extremely difficult to bring about in a timely and efficient manner. The fact of the matter surely is that these difficulties reflect the increasingly evident inadequacy of the traditional view of international relations as composed of pluralistic separate sovereignties, existing in a world where pressures of many kinds, not least of scientific and technological skills, almost daily make those separate so-called sovereignties, in practical terms, less independent and more and more interdependent. What is urgently needed is a more general realisation that, in the conditions of the contemporary global situation, the need to create a true international society must be faced. It needs in fact a new vision of international relations and law. This is a matter that takes us beyond the scope of this book. But those who doubt the need for radical changes in our views of, and uses of, international law should read Philippe Sands’ book and then tell us how else some of these © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information xvi foreword problems can be solved. After all, this is not just a question of ameliorating the problems of our civilisation but of our survival. Sir Robert Jennings QC Former Judge and President of the International Court of Justice; sometime Whewell Professor of International Law in the University of Cambridge; Honorary Bencher of Lincoln’s Inn; former President of the Institut de Droit International © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information PREFACE AND ACKNOWLED GMENTS TO THE FIRST EDITION Principles of International Environmental Law marks the culmination of that aspect of my professional activities which was triggered by the accident at the Chernobyl nuclear power plant, on 26 April 1986. At that time I was a research fellow at the Research Centre for International Law at Cambridge University, working on international legal aspects of contracts between states and nonstate actors, and not involved in environmental issues. With the active support of the Research Centre’s Director, Eli Lauterpacht, I began to examine the international legal implications of the Chernobyl accident, which indicated that the legal aspects of international environmental issues were of intellectual and political interest, and still in an early phase of development. This led to several research papers, a book and various matters involving the provision of legal advice on international environmental issues. My interest having been aroused, the implications of environmental issues for public international law provided a rich seam which has sustained me for several years, and resulted in my founding, with James Cameron, what is now the Foundation for International Environmental Law and Development (FIELD). That, in turn, has provided me with the fortunate opportunity to participate in a number of international negotiations, most notably those preparatory to UNCED and the Climate Change Convention, and to develop an international legal practice which is varied, unpredictable, entertaining, often challenging and occasionally frustrating. This book, together with the accompanying volumes of international documents (Volumes IIA and IIB) and EC documents (Volume III), is intended to provide a comprehensive overview of those rules of public international law which have as their object the protection of the environment. I hope that it will be of some use to lawyer and non-lawyer alike, whether working for government, international organisations, non-governmental organisations and the private sector, or having an academic or other perspective. Its structure and approach reflect my belief that international environmental efforts will remain marginal unless they are addressed in an integrated manner with those international economic endeavours which retain a primary role in international law-making and institutional arrangements, and unless the range of actors participating in the development and application of international environmental law continues to expand. In that regard, it is quite clear that international xvii © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information xviii preface and acknowledgments to the first edition environmental law remains, as a branch of general public international law, at an early stage of practical development, in spite of the large body of instruments and a burgeoning literature. Over the past decade the body of law has increased dramatically, and only the best equipped researchers will be able to keep up with all developments as they occur. I have sought to state the law as it was on 1 January 1993, although the diligent reader will note that on some aspects more recent developments have also been treated. Principles of International Environmental Law therefore marks the culmination of an initial phase of my endeavours as an academic and practitioner. Its roots run deep and wide, and it is impossible to acknowledge here all the sources of input and generous support which I have received over the past several years. It seems to me to be quite appropriate, however, to acknowledge those teachers, colleagues and friends who have exercised particular influence, directly or indirectly. The fact that I became interested in international law at all is largely due to my first teacher of international law, Robbie Jennings, then in his final year at Cambridge before moving to The Hague: I am hugely grateful for his inspiring encouragement and support ever since, particularly for taking the view that the environment was, even several years ago, properly a subject for consideration in its international legal aspect. Eli Lauterpacht gave me my first professional ‘break’ and taught me, in particular, the value of a practical approach and the importance of rigour. Even at a distance, Philip Allott constantly reminds me of the need to think about the bigger picture. And lest I should slip, David Kennedy has been a critical inspiration in reminding me that there is another way. Colleagues at London University (particularly Ian Kennedy at King’s College and Peter Slinn at the School of Oriental and African Studies) have provided great support in allowing me the flexibility to combine teaching with practical efforts. I would also like to record my debt to Tom Franck for introducing me to New York University Law School, and to Dean John Sexton for giving me a more regular perch from which to base my forays to the United Nations. I am tremendously indebted to all my colleagues at FIELD. I would like to thank the Board of Trustees, and especially John Jopling, the Chairman, for allowing me to devote considerable time to this project, as well as Marian Bloom, Frances Connelly, Rona Udall and Roger Wilson for their administrative support. Many FIELD interns provided long hours of patient assistance, and I want especially to thank Carolyn d’Agincourt, Mary Beth Basile and Kiran Kamboj for going way beyond the call of duty during their extended internships, and Joanna Jenkyn-Jones, Hugo Jolliffe and Penny Simpson for helping me to get over the final hurdles more easily. But it is to FIELD’s lawyers that I extend especially warm thanks for helping me to fulfil my other obligations and for always being available to provide information and critical insights on those areas in which they are expert. James Cameron is an inspirational friend, colleague and © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information preface and acknowledgments to the first edition xix co-founder of FIELD, and I feel fortunate to have found a working partner who is able to provide me with the space and support to get on with my own efforts whilst reminding me that I also have, in all senses, broader responsibilities. Greg Rose (now at the Australian Department of Foreign Affairs and Trade), Jake Werksman and Farhana Yamin have been outstanding colleagues and friends. Richard Tarasofsky and Mary Weiss, my collaborators on Volumes II and III, assisted also in the preparation of this volume. FIELD’s many supporters have also contributed, indirectly but significantly, to the production of this book, and I would like to thank, in particular, Janet Maughan (Ford Foundation), Mike Northrop (Rockefeller Brothers Fund), Ruth Hennig (John Merck Fund) and Marianne Lais Ginsburg (German Marshall Fund) for supporting FIELD’s efforts and enabling me to participate in some of the important international legal developments since 1989. At my chambers, I want to thank Ailsa Wall for her magnificent typing efforts, and Paul Cooklin for his accommodation of my rather peripatetic needs. For their efforts on a day-to-day basis my deepest gratitude, however, is reserved for two individuals without whose support it is unimaginable that this book could have been completed. Louise Rands has run my office for the past two and a half years with the greatest efficiency, effectiveness and humour anyone could hope to benefit from, maintaining order (and priorities) in the maelstrom of activities and obligations that frequently engulf FIELD’s offices. Natalia Schiffrin has been absolutely fabulous in putting up with the demands that the book placed on our daily routine, and reminding me of what is important in life and what isn’t. I must also acknowledge the assistance of numerous other individuals, who enabled me to obtain access to information or to participate in various meetings, in particular: Andronico Adede (Office of Legal Affairs, United Nations); Raymondo Arnaudo and Genevieve Ball (United States Department of State); Dr John Ashe (Permanent Mission of Antigua and Barbuda to the United Nations); Cath Baker, A. M. Forryan and Susan Halls (UK Foreign and Commonwealth Office); Germaine Barikako (OAU); William Berenson (OAS); Giselle Bird (Department of Foreign Affairs and Trade, Australia); Celine Blais (External Affairs and International Trade, Canada); Dan Bodansky (University of Washington School of Law); Laurence Boisson de Chazournes (Institut des Hautes Etudes, Geneva); M. Borel (Departement Federal des Affaires Etrangeres, Switzerland); Jo Butler and Michael Zammit-Cutajar (Climate Change Convention Interim Secretariat); G. de Proost (Ministere des Affaires Etrangeres, Belgium); Juan-Manuel Dias-Pache Pumareda (Ministerio de Asuntes Exteriores, Spain); Dr Emonds (Bundesministerium fur Umwelt, Naturschutz und Reaktorsicherheit, Germany); Philip Evans (Council of the European Communities); Denis Fada (FAO); Dr Antonio Fernandez (International Commission for the Conservation of Atlantic Tunas); Dr Charles Flemming (Permanent Representative of St Lucia to the United Nations); Nigel Fyfe and Paul Keating © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information xx preface and acknowledgments to the first edition (New Zealand Ministry of External Affairs and Trade); Dr R. Gambell (International Whaling Commission); John Gavitt (CITES Secretariat); Professor Gunther Handl (Editor, Yearbook of International Environmental Law); Beatrice Larre (OECD); Howard Mann (Environment Canada); Norma Munguia (Mexican Embassy, Washington DC); Lincoln Myers (formerly Minister of Environment, Trinidad and Tobago); Boldiszar Nagy (Associate Professor, Eotvos Lorand University); Bernard Noble (Deputy Registrar, International Court of Justice); Manoel Pereyra (ICAO); Amelia Porges (GATT); Marie-Louise Quere-Messing (United Nations); N. Raja Chandran (Ministry of Foreign Affairs, Malaysia); Patrick Reyners (OECD-NEA); Keith Richmond (FAO); Stan Sadowski (Paris/Oslo Commissions); Candice Stevens (OECD); Wouter Sturms (IAEA); Patrick Szell (UK Department of Environment); Dr Alexandre Timoshenko (UNEP); Eduardo Valencia Ospina (Registrar, International Court of Justice); Robert van Lierop (formerly Permanent Representative of Vanuatu to the United Nations); Makareta Waqavonova (South Pacific Forum); and Linda Young (IMO). Finally, I would like to thank Vaughan Lowe for encouraging me to write this textbook (and the supporting volumes of documents), for providing clear intellectual guidance and support, and for introducing me to Manchester University Press. At the Press, Richard Purslow has been as patient and supportive an editor as one could possibly hope to find, and his colleagues Jane Hammond Foster, Elaine White and Celia Ashcroft have provided enormous assistance. Needless to say, such errors or omissions as might have crept in remain my full responsibility. Philippe Sands London 1 November 1994 © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information PREFACE AND ACKNOWLED GMENTS TO THE SECOND EDITION The second edition of Principles of International Environmental Law indicates that the legal aspects of international environmental issues are of growing intellectual and political interest, and that they have moved beyond the situation I described nearly ten years ago as reflecting ‘an early phase of development’. It is apparent from the new material which this edition treats – new conventions, new secondary instruments, new (or newly recognised) norms of customary law, and a raft of new judicial decisions – that international environmental law is now well established and is a central part of the international legal order. It is also clear that international environmental law has reached new levels of complexity, in particular as it has become increasingly integrated into other social objectives and subject areas, particularly in the economic field. The burgeoning case law, and the increased involvement of practitioners, suggests that it can no longer be said that international environmental law is, as a branch of general public international law, at an early stage of practical development. Like the first edition, this edition (together with the accompanying volume of international documents for students) is intended to provide a comprehensive overview of those rules of public international law which have as their object the protection of the environment. Those rules have become more numerous and complex, but also more accesible: the advent of the Internet often means that material which was previously difficult to track down – for example, information as to the status, signature and ratification of treaties, and acts and decisions of conferences of the parties and susbidiary bodies – is now relatively easy to obtain. But the Internet also increases the danger of becoming overwhelmed by the sheer quantity of material that is now available, a risk which is exacerbated by the very extensive (and growing) secondary literature which is produced every year, only a small proportion of which may really be said to indicate real insights into new developments. This background necessarily means that what is gained on breadth may be lost – at least in some areas – on depth. This comprehensive account cannot address all of the details that now dominate specific areas – trade, fisheries and climate change spring immediately to mind – and the reader will need to refer to more detailed accounts of particular sectors, and the websites of various conventions, to obtain many of the details. Over the xxi © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information xxii preface and acknowledgments to the second edition past decade, the body of law has again increased dramatically; I have sought to state the law as it was on 1 January 2003. This second edition has largely been inspired by my endeavours as an academic and practitioner over the last eight years, in particular contact with my academic colleagues at London and New York Universities and professional contact in connection with the various international cases I have been fortunate to be involved in. Again, it is impossible to acknowledge here all the sources of input and generous support received since 1995. It is appropriate, however, to acknowledge those colleagues and friends who have exercised particular influence, directly or indirectly. At London University, Matt Craven and Michael Anderson have provided great support, as have many other colleagues at SOAS, together with Richard McCrory, Jane Holder and Jeffrey Jowell at my new home at University College London, with help too from Ray Purdue and Helen Ghosh. At New York University, I could not have wished for greater collegiality and friendship than that offered by Dick Stewart, together with the support offered over many years by Tom Franck, Andy Lowenfeld, Eleanor Fox, Iqbal Ishar, Norman Dorsen, Ben Kingsbury, Radu Popa, Vicki Been and Ricky Revesz, as well as Jane Stewart, and for heaps of administrative support from Jennifer Larmour. At the Project on International Courts and Tribunals, Shep Forman, Ruth Mackenzie, Cesare Romano, Thordis Ingadottir and Noemi Byrd have also provided unstinting support. My former colleagues at FIELD have continued to provide support and assistance, including Jake Werksman, Farhana Yamin, Jurgen Lefevre, Alice Palmer and Beatrice Chaytor. Many of my students and former students at London and New York Universities have provided long hours of patient assistance. Two colleagues have provided particular support, to whom I extend special thanks and appreciation: Jacqueline Peel, now at the Melbourne University Faculty of Law, who has expended great efforts in assisting with research and in drafting of the highest quality and who, I hope, might become the co-author of this book in its third edition; and Paolo Galizzi, now at Imperial College London, who is coauthoring the student edition of basic documents to accompany this volume. Thanks also go to Valeria Angelini, Lauren Godshall, Ed Grutzmacher, Victoria Hallum, Miles Imwalle, Jimmy Kirby, Lawrence Lee, Bruce Monnington, Lillian Pinzon, Katarina Kompari, Denise Ryan, Anna-Lena Sjolund, Eva Stevens-Boenders and Mimi Yang. Thanks also go to Tim Walsh for electronic wizardry, and – once again – to Louise Rands in deepest Devon for helping to bring the manuscript in on time. In other places – courts and tribunals and conferences – I have benefited inestimably from the learning and experience offered to me by James Crawford and Pierre-Marie Dupuy, and from Boldizsar Nagy, Vaughan Lowe, Chris Thomas, Laurence Boisson de Chazournes and Adriana Fabra. My colleagues at Matrix Chambers have created an environment which encourages ideas to be generated © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information preface and acknowledgments to the second edition xxiii and tested, supportive of both the environmental law and the international law elements which make up this book and the experience it reflects. Finally, I would like to thank Finola O’Sullivan and Jennie Rubio at Cambridge University Press. Needless to say, such errors or omissions as might have crept in remain my full responsibility. For her efforts on a day-to-day basis – and every day – my greatest thanks are to Natalia Schiffrin, for all her help, and for continuing to remind me of what is important in life and what isn’t. And of course this time she has had a little help from Leo, Lara and Katya, each of whom has contributed uniquely over the last eight years. Philippe Sands 1 June 2003 Faculty of Laws University College London Bentham House London WC1H 0EG © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information TABLE OF CASES Permanent Court of International Justice Chorzow Factory (Germany v. Poland), PCIJ Series A, No. 17, 29 152, 873, 882–3 Diversion of the Waters from the Meuse (Netherlands v. Belgium), PCIJ Series A/B, No. 70, 76–7 152, 217 Frontier Between Turkey and Iraq, PCIJ Series B, No. 12 132 Jurisdiction of the Courts of Danzig (Poland, Advisory Opinion), PCIJ Series B. No. 15 152 Legal Status of Eastern Greenland (Denmark v. Norway), PCIJ Series A/B, No. 53, 49 131 The Lotus (France/Turkey), PCIJ Series A, No. 10 239 Mosul Case, PCIJ Series B. No. 12, 32 152 Territorial Jurisdiction of the International Commission of the River Oder [1929] (Czechoslovakia, Denmark, France, Germany, Great Britain, Sweden, Poland), PCIJ Series A, No. 23, 27 217, 462, 471, 474 The Wimbledon (Great Britain, France, Italy, Japan, and Poland (Intervening) v. Germany), PCIJ Series A, No. 1 185 International Court of Justice Asylum (Colombia/Peru) (1950) ICJ Reports 266 149 Barcelona Traction, Light and Power Company Limited (Second Application) (Belgium v. Spain) (1970) ICJ Reports 3 188 Certain Phosphate Lands in Nauru (Nauru v. Australia) (1992) ICJ Reports 240 94–5, 142, 144, 174, 217, 248, 666–9, 877, 879, 887 Continental Shelf (Libyan Arab Jamahiriya/Malta) (1985) ICJ Reports 13 145 Corfu Channel (United Kingdom v. Albania) (1949) ICJ Reports 4 152, 153, 243, 249, 471, 842, 881 Estai Case (Canada v. Spain) (1998) ICJ Reports 432 567–8, 578–80 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) (Jurisdiction) (1983) ICJ Reports 96; (Merits) (1974) ICJ Reports 175 14, 173, 567–8 xxiv © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information table of cases xxv Fisheries Jurisdiction (Estai) (Spain v. Canada) (1998) ICJ Reports 432 216, 217, 239, 567–8, 578–80 Fisheries Jurisdiction (United Kingdom v. Iceland) (Jurisdiction) (1973) ICJ Reports 3; (Merits) (1974) ICJ Reports 3 14, 152, 153, 218, 262, 561, 567–8 Fisheries Jurisdiction (United Kingdom v. Norway) (1951) ICJ Reports 116 149 Frontier Dispute (Burkina Faso/Republic of Mali) (1986) ICJ Reports 554 150–1 Gabcikovo-Nagymaros (Hungary/Slovakia) (1997) ICJ Reports 7 7, 9, 11, 65, 94–5, 106, 132, 134, 145, 146, 152, 153, 173, 174, 184, 217, 247, 249–51, 254–5, 257, 263, 274–5, 462, 469–77, 822–4, 873, 875, 877, 883, 889 Gulf of Maine Case (Canada/United States) (1984) ICJ Reports 246 152 Kasiliki/Sedulu Island (Botswana/Namibia) (1999) ICJ Reports 1045 250, 462, 467 Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Reports 226 4, 95, 99, 145, 148, 153, 257, 310, 315, 649 Legality of the Use of Force (Yugoslavia v. United Kingdom) (1999) ICJ Reports 218 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States) (1986) ICJ Reports 14 106, 145–7, 150–2, 842 North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (1969) ICJ Reports 3 145–9, 152, 153, 201, 251 Nottebohm (Liechtenstein v. Guatemala) (Judgment) (1955) ICJ Reports 4 146 Nuclear Tests (Australia v. France) (Interim Protection) (1973) ICJ Reports 99; (Judgment) (1974) ICJ Reports 253 33, 120–1, 141, 144, 151, 153, 184–5, 188, 190, 218, 241–2, 248, 317, 319–21, 649, 877, 879, 881, 887 Nuclear Tests (New Zealand v. France) (Interim Protection) (1973) ICJ Reports 135; (Judgment) (1974) ICJ Reports 457 33, 120–1, 141, 144, 151, 153, 184–5, 218, 318–21, 649, 877, 881, 887 Passage Through the Great Belt (Finland v. Denmark) (Provisional Measures) (1991) ICJ Reports 12 218 Reparation for Injuries Suffered in the Service of the United Nations (1949) ICJ Reports 174 131, 191, 1024 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) (1995) ICJ Reports 288 95–6, 173, 187, 217, 244–5, 273–4, 310, 813–14 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) ICJ Reports 15 135 South West Africa (Preliminary Objections), (1966) ICJ Reports 47 187 © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information xxvi table of cases International Tribunal for the Law of the Sea Mox Plant, 3 December 2001 7, 138, 173, 174, 184, 213, 251, 276, 436, 806–7, 828, 838, 857 Southern Bluefin Tuna (Australia and New Zealand v. Japan), 4 August 2002, 39 ILM 1359 (2000) 7, 137–8, 173, 185, 220, 275–6, 561, 580–1, 828 Volga Case (Russia v. Australia) 22 December 2002 220 Awards of international arbitral tribunals Azinian, Davitian and Baca v. Mexico, 1 November 1998, 5 ICSID Reports 269 1064 Bering Sea Fur Seals Fisheries Arbitration (Great Britain v. United States) Moore’s International Arbitration (1893) 755 29–30, 150–1, 153, 173, 185, 190, 213, 238, 253, 256, 561–6, 588 Compania del Desarrollo de Santa Elena SA v. Costa Rica, 17 February 2000, 39 ILM 1317 (2000) 1070–1 Ethyl Corporation v. Canada, Jurisdiction phase, 38 ILM 708 (1999) 1064–5 Feldman (Marvin) v. Mexico, 9 December 2002, ICSID Case ARB(AF)/99/1 1069 Gentini Case (Italy v. Venezuela) MCC (1903) 232, 234 Gut Dam Arbitration, 8 ILM 118 (1969) 486–7 Kuwait v. American Independent Oil Co., 21 ILM 976 (1982) 237 Lac Lanoux Arbitration (France v. Spain) 24 ILR 101 (1957) 34, 153, 173, 184, 202, 213, 243, 248, 250, 463–4, 838, 877, 881 Metalclad Corporation v. Mexico, 25 August 2000, 40 ILM 35 (2001) 173, 1066–9 Methanex v. United States of America, 15 January 2001 200, 1069–70 OSPAR (Article 9), 2 July 2003 857 Palmas Case 2 HCR 84 (PCA 1928) 241 People of Enewetak (Marshall Islands Nuclear Claims Tribunal, 13 April 2000), 39 ILM 1214 (2000) 889–90, 910 Pope and Talbot v. Canada, 26 June 2000 1069 Rainbow Warrior (New Zealand v. France) 82 ILR 500 883 S. D. Myers v. Canada 1065–6 Texaco Overseas Petroleum Co. and California Asiatic Oil Co. v. Libya, 53 ILR 389 (1977) 237, 305, 317–19 Trail Smelter Arbitration (United States v. Canada) 16 April 1938, 11 March 1941; 3 RIAA 1907 (1941) 4, 30, 150–1, 153, 173, 184, 213, 241–2, 248, 249, 321–5, 471, 877, 879, 881, 885–6 Waste Management Inc. v. Mexico, 2 June 2000, 5 ICSID Reports 443 1064 © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information xxvii table of cases GATT Panel Decisions Canada – Measures Affecting Exports of Unprocessed Herring and Salmon, BISD/35S/98 (1988) 953 Thailand – Restriction on Importation of and Internal Taxes on Cigarettes, BISD/37S/200 (1990) 953 Tuna/Dolphin I, 30 ILM 1594 (1991) 953, 955, 960–1 Tuna/Dolphin II, 33 ILM 839 (1991) 953, 958–61 US – Chemicals Tax, BISD/34S/160 (1987) 285, 953 US – Measures on Yellow-Fin Tuna Imports, GATT Doc. DS21/R (1991) 132, 158, 173, 185, 189, 190, 238, 1002 US – Tuna Import Measures, BISD/29S/91 (1982) 953 WTO Cases Australia – Measures Affecting Importation of Salmon, WT/DS18/R, 12 June 1998 and WT/DS18/AB/R, 20 October 1998 981–3, 985 EC – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/R, 18 September 2000 and WT/DS135/AB/R, 12 March 2001 10, 222, 973–7 EC – Measures concerning Meat and Meat Products (Hormones), WT/DS48/ AB/R, 16 January 1998; WT/DS26/R/USA and WT/DS48/CAN, 18 August 1997 7, 222, 277–8, 979–81, 985, 1019 Japan – Measures Affecting Agricultural Products, WT/DS76/R, 27 October 1998 and WT/DS76/AB/R, 22 February 1999 983–4 Swordfish Case (Chile v. EC), DS193, 12 December 2000 561, 582–3 US – Import Prohibition of Certain Shrimp and Shrimp Products, 12 October 1998, 38 ILM 118 (1999) 9, 11, 132, 173, 190, 200, 222, 238, 255, 290, 944, 945, 961–73, 977, 1009 US – Reformulated Gasoline, 35 ILM 603 (1996) 961–5, 977 World Bank Administrative Tribunal De Merode v. World Bank, WBAT Reports [1987] Decision No. 1 734 European Court of Justice Aher-Waggon GmbH v. Germany (Case C-389/96) [1998] ECR I-4473 783, 992–3 Alpharma Inc. v. Council (Case T-70/99) [1999] ECR II-2077 272 Arcaro (Case C-168/95) [1996] ECR I-4705 737 Arco Chemie Nederland Ltd (Cases 418/419/97) [2000] ECR I-4475 788 © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information xxviii table of cases Association Greenpeace and Others v. Ministère de l’Agriculture et de la Pêche (Case C-6/99) [2000] ECR I-1651 272 Bund Naturschutz in Bayern eV and Others v. Freistaat Bayern (Case C-396/92) [1994] ECR I-3717 810 Burgemeester v. Holland (Case C-81/96) [1998] ECR I-3923 810 Cali v. Servizi Ecologici Porto di Genova SpA (Case C-343/95) [1997] ECR I-1547 1016 Chemische Afvalstoffen Düsseldorp BV and Others v. Minister van Volkshuisvesting (Case C-203/96) [1998] ECR I-4075 699, 789 Comitato di Difesa della Cava (Case C-236/92) [1994] ECR I-483 737 Commission v. Belgium (Case 68/81) [1982] ECR 153 792 Commission v. Belgium (Case 69/81) [1982] ECR 163 787 Commission v. Belgium (Case 71/81) [1982] ECR 175 792 Commission v. Belgium (Case 72/81) [1982] ECR 183 772 Commission v. Belgium (Case 73/81) [1982] ECR 189 771 Commission v. Belgium (Case 239/85) [1986] ECR 3645 790 Commission v. Belgium (Case 247/85) [1987] ECR 3029 604 Commission v. Belgium (Case 1/86) [1987] ECR 2797 775 Commission v. Belgium (Case 134/86) [1988] ECR 2415 222, 768 Commission v. Belgium (Case C-162/89) [1990] ECR I-2391 760 Commission v. Belgium (Case C-42/89) [1990] ECR I-2821 771, 772 Commission v. Belgium (Case C-2/90) [1993] 1 CMLR 365 150, 987, 990–2 Commission v. Belgium (Case C-174/91) [1993] ECR I-2275 775 Commission v. Belgium (Case C-133/94) [1996] ECR I-2323 811 Commission v. Belgium (Cases C-218/219/220/221/222/96) [1996] ECR I-6817 784 Commission v. Belgium (Case C-207/97) [1999] ECR I-275 774 Commission v. Belgium (Case C-347/97) [1999] ECR I-309 792 Commission v. Belgium (Case C-79/98) [1999] ECR I-5187 785 Commission v. Belgium (Case C-217/99) [2000] ECR I-10251 994–5 Commission v. Belgium (Case C-236/99) [2000] ECR I-5657 778 Commission v. Council (Case C-300/89) [1991] ECR I-2687 223, 744 Commission v. Council (Case C-155/91) [1993] ECR I-939 223, 745 Commission v. Denmark (Case 278/85) [1987] ECR 4069 785 Commission v. Denmark (Case 302/86) [1989] 1 CMLR 619 689, 987 Commission v. France (Case 252/85) [1988] ECR 2243 604 Commission v. France (Case C-182/89) [1990] ECR I-4337 223 Commission v. France (Case C-166/97) [1999] ECR I-1719 604 Commission v. France (Case C-97/98) [1999] ECR I-08531 604 Commission v. France (Case C-374/98) [2000] ECR I-10799 604 Commission v. France (Case C-38/99) [2000] ECR I-10941 604 Commission v. France (Case C-220/99) [2001] ECR I-5831 537 © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information table of cases xxix Commission v. France (Case C-320/99) [2000] ECR I-10453 760 Commission v. France (Case C-147/00) [2001] ECR I-2387 773 Commission v. Germany (Case 208/85) [1987] ECR 4045 785 Commission v. Germany (Case 412/85) [1987] ECR 3503 604 Commission v. Germany (Case C-131/88) [1991] ECR I-825 775 Commission v. Germany (Case C-288/88) [1990] ECR I-2721 604 Commission v. Germany (Case C-57/89) [1991] ECR I-883 605 Commission v. Germany (Case C-57/89 R) [1989] ECR 2849 194 Commission v. Germany (Case C-237/90) [1992] ECR I-5937 772 Commission v. Germany (Case C-422/92) [1995] ECR I-1097 790 Commission v. Germany (Case C-431/92) [1995] ECR I-2189 808, 810 Commission v. Germany (Case C-61/94) [1996] ECR I-3989 536, 762 Commission v. Germany (Case C-262/95) [1996] ECR I-5729 774 Commission v. Germany (Case C-297/95) [1996] ECR I-6739 778 Commission v. Germany (Case C-298/95) [1996] ECR I-6747 775 Commission v. Germany (Case C-301/95) [1998] ECR I-6135 811 Commission v. Germany (Case C-137/96) [1997] ECR I-6749 786 Commission v. Germany (Case C-184/97) [1999] ECR I-7837 774 Commission v. Germany (Case C-198/97) [1999] ECR I-3257 772 Commission v. Germany (Case C-217/97) [1999] ECR I-5087 855 Commission v. Germany (Case C-71/99) [2002] ECR I-5811 537 Commission v. Greece (Case C-45/91) [1992] ECR I-2509 789 Commission v. Greece (Case C-161/95) [1996] ECR I-1979 778 Commission v. Greece (Cases C-232/233/95) [1998] ECR I-3343 774 Commission v. Greece (Case C-380/95) [1996] ECR I-4837 786 Commission v. Greece (Case C-387/97) [2000] ECR I-5047 788, 929 Commission v. Greece (Case C-103/00) [2002] ECR I-1147 539 Commission v. Greece (Case C-64/01) [2002] ECR I-2523 755 Commission v. Ireland (Case C-392/96) [1999] ECR I-5901 811 Commission v. Ireland (Case C-67/99) [2001] ECR I-5757 537 Commission v. Ireland (Case C-117/00) [2002] ECR I-5335 538 Commission v. Italy (Case 91/79) [1980] ECR 1099 175, 738, 986 Commission v. Italy (Case 92/79) [1980] ECR 1115 738, 760, 986 Commission v. Italy (Cases 30–34/81) [1981] ECR 3379 222, 771, 772, 787, 791, 792 Commission v. Italy (Case 262/85) [1987] ECR 3073 604 Commission v. Italy (Case 309/86) [1988] ECR 1237 768 Commission v. Italy (Case 322/86) [1988] ECR 3995 775 Commission v. Italy (Case C-360/87) [1991] ECR I-791 775 Commission v. Italy (Case C-291/93) [1994] ECR I-859 775 Commission v. Italy (Case C-238/95) [1996] ECR I-1451 785 Commission v. Italy (Case C-302/95) [1996] ECR I-6765 778 Commission v. Italy (Case C-225/96) [1997] ECR I-6887 776 © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information xxx table of cases Commission v. Italy (Case C-365/97) [1999] ECR I-7773 789 Commission v. Italy (Case C-159/99) [2001] ECR I-4007 604 Commission v. Italy (Case C-65/00) [2002] ECR I-1795 791 Commission v. Luxembourg (Case C-313/93) [1994] ECR I-1279 810 Commission v. Netherlands (Case 96/81) [1982] ECR 1791 772 Commission v. Netherlands (Case 97/81) [1982] ECR 1819 223, 772 Commission v. Netherlands (Case 291/84) [1987] ECR 3483 223, 775 Commission v. Netherlands (Case 236/85) [1987] ECR 3989 604 Commission v. Netherlands (Case C-339/87) [1993] 2 CMLR 360 604 Commission v. Netherlands (Case C-3/96) [1998] ECR I-3031 604 Commission v. Netherlands (Case C-152/98) [2001] ECR I-3463 774 Commission v. Portugal (Case C-150/97) [1999] ECR I-259 810 Commission v. Portugal (Case C-183/97) [1998] ECR I-4005 775 Commission v. Portugal (Case C-208/97) [1998] ECR I-4017 773 Commission v. Portugal (Case C-213/97) [1998] ECR I-3289 773 Commission v. Portugal (Case C-435/99) [2000] ECR I-1179 774 Commission v. Spain (Santona Marshes) (Case C-355/90) [1993] ECR I-4221 602–3 Commission v. Spain (Case C-92/96) [1998] ECR I-505 772 Commission v. Spain (Case C-29/01) [2002] ECR I-2503 755 Commission v. United Kingdom (Case C-337/89) [1992] ECR I-6103 772 Commission v. United Kingdom (Case C-56/90) [1993] ECR I-4109 223, 772 Commission v. United Kingdom (Case C-340/96) [1999] ECR I-2023 772 Commission v. United Kingdom (Case C-35/00) [2002] ECR I-953 791 Commission v. United Kingdom (Case C-39/01) [2002] ECR I-2513 755 Criminal Proceedings Against Giacomo Caldana (Case 187/84) [1985] ECR 3013 785 Criminal Proceedings Against Gourmetterie van den Burg (Case C-169/89) [1990] ECR 2143 604, 990 Criminal Proceedings Against Tombesi and Others (Cases C-242/304/330/94 and 224/95) [1997] ECR I-3561 678, 788 Danish Bees (Criminal Proceedings Against Bluhme) (Case C-67/97) [1998] ECR I-8033 993–4 Dassonville (Case 8/74) [1974] ECR 837 996 Enichem Base and Others v. Commune di Cinisello Balsamo (Case C-380/87) [1989] ECR 2491 224, 787 Fornasar (Case C-318/98) [2000] ECR I-4785 791 France v. United Kingdom (Case 141/78) [1979] ECR 2923 185 Francovich and Another v. Italy (Case C-6/9/90) [1993] 2 CMLR 66 928–9 Gianni Bettati v. Safety Hi-Tech Srl (Case C-341/95) [1998] ECR I-4355 762 Greenpeace and Others v. Commission (Case C-321/95) [1998] ECR I-6151 177 © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information table of cases xxxi Groupement d’Interêt Economique ‘Rhone Alpes Huiles’ and Others v. Syndicat National des Fabricants d’Huile de Graissage and Others (Case 295/82) [1984] ECR 575 791, 990 Handelskwekerij G. J. Bier v. Mines de Potasse d’Alsace (Case 21/76) [1976] ECR 1735 198 Inter-Environment Wallonie ASBL v. Région Wallone (Case C-129/96) [1997] ECR I-7411 678, 738, 788 Kemikalienspektionen v. Toolex Alpha AB (Case C-473/98) [2000] ECR I-5681 995–6 Kraaijeveld (Case C-72/95) [1996] ECR I-5403 737, 811 Luxembourg v. Berthe Linster EA (Case C-287/98) [2000] ECR I-6917 738, 808 Ministère Public v. Oscar Traen and Others (Cases 372/373/374/85) [1987] ECR 2141 789 Netherlands v. European Parliament and EU Council (Case C-377/98) [2001] ECR I-7079 516, 1047, 1051–2 Palin Granit and Vehmassalon kansanternveystyon kuntayhtyman hallitus (Case C-9/00) [2002] ECR I-3533 678 Pretore di Salo v. Persons Unknown (Case 14/86) [1987] ECR 2545 775 Preussen Elektra AG v. Schleswag AG (Case C-379/98) [2001] ECR I-2099 996–7 Procureur de la République v. Association de Défense des Brûleurs d’Huiles Usagées (Case 240/83) [1985] ECR 531 133, 742, 987 R. v. Secretary of State for the Environment and Ministry of Agriculture, Fisheries and Food, ex parte H. A. Stanley and Others and D. G. Metson and Others (Case C-293/97) [1999] ECR I-2603 284 R. v. Secretary of State for the Environment, Transport and the Regions, ex parte First Corporate Shipping Ltd (Case C-371/98) [2000] ECR I-9235 224, 537 Reference for a Preliminary Ruling: Rechtbank van Eerste Aanleg Turnhout – Belgium (Criminal Proceedings Against Brandsma) (Case C-293/94) [1996] ECR I-3159 992 Saarland and Others v. Ministry of Industry and Others (Case C-187/87) [1988] ECR 5013 793 Simmenthal (Case 107/77) [1978] ECR 629 738 Sydhavnens Sten & Grus (Case C-209/98) [2000] ECR I-3743 789 Syndicat National des Fabricants d’Huile de Graissage v. Groupement d’Intérêt Economique Inter-Huiles (Case 172/82) [1983] ECR 555 791, 987 Unilever Italia SpA v. Central Food SpA (Case C-443/98) [2000] ECR I-7535 738 Union de Pequenos Agricultores v. Council (Case C-50/00 P) [2002] 3 CMLR 1 177 © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information xxxii table of cases United Kingdom v. Commission (Case C-180/96) [1998] ECR I-2265 272 Van Gend and Loos (Case 26/62) [1963] ECR 3 734, 737 Vessaso and Zanetti (Cases C-206/207/88) [1990] ECR I-1461 677, 788 Wilhelm Mecklenburg v. Kreis Pinneberg (Case C-321/96) [1998] ECR I-3809 855 WWF and Others v. Autonome Provinz Bozen and Others (Case C-435/97) [1999] ECR I-5613 808, 811 Zanetti and Others (Case C-359/88) [1990] ECR I-1509 677, 788 Court of First Instance Jego Quere et Cie SA v. Commission (Case T-177/01) [2002] 2 CMLR 44 177 European Patent Office Harvard College, Case T19/90, [1990] 12 OJEPO 476 1048 Hormone Relaxin, Case T272/95, [1995] 6 OJEPO 388 1048 Lubrizol Genetics Inc, Case T320/87, [1990] 3 OJEPO 71 1047–8 Oncomouse, Application No. 85 304 490.7, [1992] OJEPO 589 1048–9 Plant Genetic Systems, Case T356/93, [1995] 8 OJEPO 545 7, 1048 European Court/Commission of Human Rights Arondelle v. United Kingdom (1982) 26 DR 5 300–1 Balmer-Schafroth v. Switzerland (1998) 25 EHRR 598 277–8, 306 Bladet Tromso and Stensas v. Norway (2000) 29 EHRR 125 306 Church of X v. UK, Application No. 3798/68 225 Fredin v. Sweden, Judgment of 18 February 1991, ECHR Series A, No. 192, 14 303 Guerra and Others v. Italy (1998) 26 EHRR 357 301–2, 306, 853 Hatton and Others v. United Kingdom (2002) 34 EHRR 1 302–3 Klass v. Germany (1978) 2 EHRR 214 225 Lopez-Ostra v. Spain, ECHR Series A, No. 303-C, (1995) 20 EHRR 277 301 Matos e Silva v. Portugal (1997) 24 EHRR 573 303 Oerlemans v. Netherlands, ECHR Series A, No. 219, (1993) 15 EHRR 561 303 Pine Valley Developments Ltd and Others v. Ireland, ECHR Series A, No. 222, (1992) 14 EHRR 319 303–4 Powell and Rayner v. United Kingdom, ECHR Series A, No. 172, (1990) 12 EHRR 355 302, 306 X and Y v. Federal Republic of Germany, Application No. 7407/76, Decision of 13 May 1976 on the Admissibility of the Application, 5 DR 161 (1976) 299 X v. Federal Republic of Germany, Application No. 9234/81, 26 DR 270 306 © Cambridge University Press www.cambridge.org Cambridge University Press 0521817943 - Principles of International Environmental Law, Second Edition Philippe Sands Frontmatter More information table of cases xxxiii Inter-American Commission on Human Rights Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of 31 August 2001, Inter-AmCtHR Series C, No. 79 304 Yanomami v. Brazil, Case No. 7615 of 5 March 1985, OAS Doc. OAE/Ser.L/ VII.66.doc.10 rev.1, 24 (1985) 304 Decisions of national courts Australia Commonwealth of Australia v. State of Tasmania and Others, 68 ILR 266 612–14 Belgium Count Lippens v. Etat Belge, 47 ILR 336 601 India Narmada Bachao Andolan v. Union of India and Others, Supreme Court of India, 18 October 2000 279 Vellore Citizens’ Welfare Forum v. Union of India and Others, Writ Petition (C) No. 914 of 1991 279 Italy Joined Cases 676/86 and 337 and Others, General Nation Maritime Transport Company and Others v. Patmos Shipping Company and Others, Court of Messina, 1st Civil Division, 30 July 1986 919 United Kingdom Kincardine and Deeside DC v. Forestry Commissioners, 1992 SLT 1180; 1991 SCLR 729; [1994] 2 CMLR 869; [1993] Env LR 151 811 R. v. Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611 1023 R. v. Secretary of State for the Environment, ex parte Kingston upon Hull City Council and ex parte Bristol City Council and Another [1996] Env LR 248; (1996) 8 Admin LR 509 777 R. v. Secretary of State for the Environment, Transport and the Regions and Another, ex parte Alliance Against the Birmingham Northern Relief Road and Others (No. 1) [1999] Env LR 447; [1999] JPL 231 855 © Cambridge University Press www.cambridge.org