Principles of international environmental protection - Introduction to International Environmental Law - page 111

polluting states) has joined neither the Convention on Biological
Diversity, the Stockholm Convention, nor the Kyoto Protocol to the
climate regime.
Areas outside the jurisdiction of states
In reality, most of the Earth falls outside the jurisdiction of individual states:
the marine areas are beyond the exclusive economic zones and the seabed
beyond the continental shelves of coastal states; airspace is measured from the
outer limit of the territorial sea (at present, it is unclear how high the sover-
eignty in the atmosphere reaches, as the lower limit of outer space is disputed);
and all of Antarctica, for as long as sovereignty claims remain, is preserved by
the 1959 treaty. The space beyond our planet is also outside the jurisdiction
of states.
The principle sic tuo utere regulates pollution among states. It was extended
in 1972, when the Stockholm environmental conference adopted the no-harm
principle (italics added):
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 responsibil-
ity 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 .
This principle today forms part of customary international law and is therefore
binding on all states. It obligates them to control such actions under their
jurisdiction or control that can cause harm to the environment beyond their
jurisdiction. The requirements of the no-harm principle on states were
referred to when New Zealand and Australia sued France in the UN
International Court of Justice.
France carried out a series of atmospheric nuclear tests from 1966 to 1972 at
its Mururoa atolls in the Pacifi c Ocean. It also established exclusion zones that
extended into the high seas. Australia and New Zealand claimed, inter alia , that
in so doing, France had restricted the high seas rights secured by the international
law of the sea to them and all states, including the right to free seafaring and fi sh-
ing in the area.
The International Court of Justice did not comment on the merits of the case
in its decision in 1974 (whether France was acting lawfully or not); it founded
its decision on the unilateral, legally binding promise of France to end its atmo-
spheric nuclear testing. Even though the Court did not make comment on the
claimants' legal arguments, the process nevertheless compelled France to end its
atmospheric nuclear testing.