Sustainability and sovereignty in the 21st century.

• Jurisdiction: United States
• Date: 22 June 2013
• Author: McCaffrey, Stephen C.
• Published date: 22 June 2013
• Author: McCaffrey, Stephen C.

Sovereignty has a venerable history in the field of International Environmental Law. Indeed, the history of the field can be seen as a history of the struggle to reconcile the sovereignty of states with their environmental obligations toward their neighbors and the environment generally.

This was so much the case in the first half of the 20th century that the famous Trail Smelter tribunal had to struggle to find any authority on the question of whether one state was allowed to cause transboundary pollution harm to another. (1) Finding no international cases, the tribunal finally resorted to seeking answers from decisions rendered by courts in federal systems: a Swiss case about army target practice that sent bullets whizzing into the neighboring canton (2) and American cases that were somewhat more cognate, involving interstate air and water pollution. (3)

The rule the tribunal ultimately fashioned, largely on the basis of these federal authorities, is often characterized as the fountainhead of international environmental law--in large part because, rather incredibly in today's world, it was the first time an international tribunal had said that a state cannot cause transboundary pollution damage to its neighbor. (4) These are the tribunal's words--while many of us could probably recite them in our sleep, I think it is worth stating them so they are fresh in our minds:

[U]nder 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. (5) The tribunal did not use the word "sovereignty" even once in this rule-formulation. But the specter of sovereignty clearly loomed over the proceedings like Justice Oliver Wendell Holmes' "brooding omnipresence in the sky." (6)

While the Trail Smelter tribunal said nothing about sovereignty in the rule it articulated, the equally famous Principle 21 of the 1972 Stockholm Declaration-which is commonly thought to have been inspired by Trail Smelter--gives pride of place to it. (7) Once again, Principle 21 is well known, but I would like to emphasize its oxymoronic character. It reads:

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. (8) It is true that the "sovereign right [of states] to exploit their own resources pursuant to their own environmental policies" is hedged about somewhat by the statement that states have this right "in accordance with the Charter ... and the principles of international law." (9) But if the point of this principle is to articulate a prohibition of causing transboundary environmental harm, why begin by letting the "sovereignty" genie out of the bottle?

As written, Principle 21--and the nearly identical Principle 2 of the Rio Declaration, 10 adopted twenty years later--essentially says to states: Go ahead with your resource exploitation activities until some other state cries 'ouch!' Then it is possible that you may have to moderate them if that other state can prove that you are causing 'damage' to its 'environment.' This is not a proposition with much deterrence value. The real problem with the formulation is that if the first half does not preemptively cancel the second half, and in fact, it may very well outweigh it, because the first limb of the principle gives license to "exploit" resources under the fig leaf of sovereignty. (11)

Now, one might think that the international community would have moved beyond anchoring the prohibition of transboundary environmental harm to a doctrine with roots in the Middle Ages, when "sovereigns"--princes, kings and queens--walked the Earth. But no--far from moving beyond it, we have repeated it ad nauseam in a whole litany of highly important environmental treaties and other instruments, including: the Convention on Long-Range Transboundary Air Pollution; (12) the Vienna Convention on the Protection of the Ozone Layer; (13) the Convention on Biological Diversity; (14) the Forest Principles adopted at Rio in 1992; (15) the Desertification Convention; (16) and, of course, the Framework Convention on Climate Change. (17)

The question might fairly be asked, why, in the 21St century, an era characterized by the interconnectedness of states, and one that is pervaded by environmental obligations, based both on treaties and on customary international law, do we continue to genuflect at the altar of sovereignty? This seems a rather important question, because if states are going to continue to follow the Machiavelli-inflected, self-centered idea of sovereignty, we are doomed to repeat the environmental mistakes of the past and to fail to make progress in the future--in a word, to fail to live sustainably in our remarkable, beautiful planetary home.

The great international lawyer and scholar Louis Henkin was not fooled by the concept of sovereignty. In several pieces on what he called The Mythology of Sovereignty, Henkin did the forbidden: he said that the emperor, sovereignty, has no clothes. Specifically, Professor Henkin said:

[A]s applied to states in their external relations, sovereignty ... is a mistake. Sovereignty is essentially an internal concept, the locus of ultimate authority in a society. Its origins are in "sovereign"...