International Customary Rules of Environmental Protection
| Author | Ian Brownlie |
| Published date | 01 August 1972 |
| DOI | 10.1177/004711787200400302 |
| Date | 01 August 1972 |
| Subject Matter | Articles |
240
INTERNATIONAL
CUSTOMARY
RULES
OF
ENVIRONMENTAL
PROTECTION
IAN
BROWNLIE
1.
The
Essential
Modesty
of
f Customary
Law
The
perspective
adopted
in
this
paper
is
a
simple
one.
Customary
law
provides
limited
means
of
social
engineering
and
therefore
there
is
a
particular
need
for
the
development
of
new
institutions,
standards
and
localised
regimes
to
deal
with
the
pro-
tection
of the
environment.
At
the
same
time
the
rules
of
customary
law
have
a
certain
role
and
this
should
not
be
underestimated.
In
particular,
positions
established
by
customary
rules
have
to
be
reckoned
with,
at
the
least
on
the
basis
that
they
provide
some
fundamental
competences
and
liabilities
which
set
the
scene
for
the
further
development
of
the
law.
This
is
the
case
in
spite
of
the
fact
that
the
competences
allowed
by
the
customary
law
contain
a
certain
freedom
to
abuse
the
environment.
Though
the
position
may
soon
change,
general
international
law
(or
customary
law)
contains
no
rules
or
standards
related
to
the
protection
of
the
environment
as
such.
Three
sets
of
rules
have
major
relevance
nonetheless.
First,
the
rules
relating
to
state
res-
ponsibility
have
a
logic
and
vitality
not
to
be
despised
or
taken
for
granted.
Secondly,
the
territorial
sovereignty
of
States
has
a
double
impact.
It
provides
a
basis
for
individualist
use
and
enjoyment
of
resources,
without
setting
any,
or
any
high,
standards
of
environ-
mental
protection.
However,
territorial
sovereignty
also
provides
a
basis
for
imposition
of
State
responsibility
on
a
sovereign
State
causing,
maintaining
or
failing
to
control
a
source
of
nuisance
to
other
States.
Thirdly,
the
concept
of
the
freedom
of
the
seas
(and
its
clear
equivalent
in
the
case
of
outer
space
and
celestial
bodies)
contains
elements
of
reasonable
user
and
non-exhaustive
enjoy-
ment
which
come
near
to
standards
concerned
with
environmental
protection,
although
in
truth
they
are
primarily
based
upon
the
concept
of
successful
sharing
rather
than
conservation
in
itself.
Unfortunately,
general
principles
or
concepts
are
no
basis
for
a
sufhcient
programme
of
action.
The
Royal
prerogative
in
British
constitutional
law
provides
no
longer
an
appropriate
content
for
emergency
powers
either
in
war
or
in
peace:
detailed
regulations
are
called
for.
The
rotund
wisdom
of
the
freedom
of
the
seas
has
not
prevented
the
considerable
degradation
of
the
Baltic
Sea.
On
this
somewhat
sceptical
note
a
survey
of
the
particular
institutions
of
general
international
law
may be
attempted.
2.
Imposition
of
State
Responsibility
When
a
State
causes,
maintains
or
fails
to
control
a
source
of
harm
to
other
States,
or ’the
nationals
of
other
States,
then
existing
principles
of
State
responsibility
provide
bases
of
liability
no
less
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