MINING AND INTERNATIONAL ENVIRONMENTAL LAW. Michael Kidd Joensuu June 2013

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1 MINING AND INTERNATIONAL ENVIRONMENTAL LAW Michael Kidd Joensuu June 2013

2 EFFECTS OF MINING Positive Contribution to economy Produces useful (essential?) resources Negative Inherently consumptive Clearing and degradation of land, impact on biodiversiity Erosion, sedimentation, subsidence etc Impact on water Acid mine drainage Air, noise, light pollution Solid waste Tailings Use of/production of hazardous substances Social human rights

3 ACID MINE DRAINAGE

4 TAILINGS DAM FAILURES Marcopper: On March 24, 1996, Marcopper Mining Corp. accidentally spilled deadly mine tailings into the Boac River, flooding it at the rate of 5 to 10 cubic meters (one truckload) per second. Total volume of discharge was pegged at 1.5 million to 3 million m 3 (Philippines Daily Inquirer). Philex: After months of recurring leakages, the Philex mine spill in Benguet has become the biggest mining disaster in the Philippines in terms of volume, (GMA News Online)

5 IEL TREATMENT OF MINING State sovereignty No dedicated instrument Transboundary effects of mining Indirect effect of treaties on domestic mining Prohibition of substances Mining in specific areas High Seas Antarctica Mining by foreign states General international law principles Domestic judicial decisions Soft Law (?)

6 STATE SOVEREIGNTY Principle 21 Stockholm Declaration (see also Rio Principle 2): 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.

7 TRANSBOUNDARY EFFECTS Trail Smelter 2000 Baia Mare cyanide spill Picture source:

8 TRANSBOUNDARY EFFECTS: LAW Water Quality Treaties Oceans Regional Seas Programmes Marine pollution instruments (particularly oil) Freshwater Regional/bilateral treaties Eg SADC Protocol on Shared Watercourses (Art 4.2) 1975 Statute of the River Uruguay (see Pulp Mills case)

9 INDIRECT EFFECTS OF TREATIES ON DOMESTIC MINING

10 BIODIVERSITY LAWS World Heritage Convention Ramsar Convention Convention on Biological Diversity (CBD)

11 ENVIRONMENTAL IMPACT ASSESSMENT Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) CBD Article 14(1). UNCLOS see later Requirement of international financing institutions World Bank

12 LAWS RELATING TO ATMOSPHERE UNFCCC and Kyoto Protocol GHG emissions of mining: CO2, methane, etc Fossil fuels Convention on Long-Range Transboundary Air Pollution (EU) 1998 Heavy Metals Protocol

13 HAZARDOUS WASTE LAWS Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal Bamako Convention (Africa)

14 PROHIBITION OF SUBSTANCES

15 HAZARDOUS SUBSTANCES Banning of certain substances in manufacture (heavy metals) Minamata Convention on Mercury 2013 Small-scale and artisanal gold mining Asbestos various cases Eg Cape PLC case (South Africa)

16 MINING IN SPECIFIC AREAS GLOBAL COMMONS

17 MINING IN THE OCEAN Mining within EEZ state sovereignty Outside EEZ International Seabed Area ( the Area ) Common heritage of mankind UNCLOS Art 45: Necessary measures shall be taken in accordance with this Convention with respect to activities in the Area to ensure effective protection for the marine environment from harmful effects which may arise from such activities. To this end the Authority shall adopt appropriate rules, regulations and procedures International SeaBed Authority Mining code incl. regulations (

18 MINING IN ANTARCTICA Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol) Art 7: Prohibition off Mineral Resource Activities Any activity relating to mineral resources, other than scientific research, shall be prohibited

19 MINING IN FOREIGN STATES

20 MINING IN FOREIGN STATES Numerous examples: Shell in Ogoniland, Nigeria Texaco (Chevron) in Ecuador Ok Tedi mine in Papua New Guinea BHP Billiton (Australia) Liability? Jurisdiction? International law decision: Case Concerning Certain Phosphate Lands in Nauru (Nauru v Australia (1992) ICJ Reports 240)

21 OK TEDI

22 NAURU PHOSPHATE CASE ICJ heard technical issues relating to jurisdiction (Australian objections) Largely held against Australia Cases settled A$ 107 million to Nauru in full and final settlement (1993) See Sands

23 GENERAL INTERNATIONAL LAW PRINCIPLES

24 GENERAL PRINCIPLES OF LAW Article The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations;

25 GENERAL PRINCIPLES Good neighbourliness Trail Smelter; Principle of prevention Pulp Mills (para 101) Environmental impact assessment Pulp Mills (para 204) a practice, which in recent years has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource. Sustainable development Pulp Mills (para 177) interconnectedness between equitable and reasonable utilization of a shared resource and the balance between economic development and environmental protection is the essence of sustainable development.

26 GENERAL PRINCIPLES Pulp Mills case see separate judgment of Judge Cançado Trindade Principle of Prevention Precautionary Principle Inter-generational equity Sustainable development Para 220: In sum, the applicable law in the present case of the Pulp Mills, is, in my understanding, not only the 1975 Statute of the River Uruguay, but the Statute together with the relevant general principles of law, encompassing the principles of International Environmental Law. These latter are, notably, the principles of prevention, of precaution, and of sustainable development with its temporal dimension, together with the long-term temporal dimension underlying inter-generational equity. The Hague Court, also known as the World Court, is not simply the International Court of Law, it is the International Court of Justice, and, as such, it cannot overlook principles

27 DOMESTIC JUDICIAL DECISIONS

28 DOMESTIC JUDICIAL DECISIONS Art 38(1)(d) of ICJ Statute: judicial decisions as subsidiary means for the determination of rules of law. Chanaral case: Pedro Flores Y Otros v Corporacion Del Cobre, Codelco, Division Salvador. Recurso De Proteccion. Copiapo Supreme Court Of Chile Rol Fs. 641 (1988) Ecuador: Aguinda v. ChevronTexaco

29 SOFT LAW

30 SOFT LAW (?) Stockholm and Rio Principles & Agenda 21 The Future We Want paras UN and UNEP Guidelines etc E.g. guidelines on Offshore Mining and Drilling (1982), Marine Pollution from Land-Based Sources (1985), Environmental Impact Assessment (1987) 2001 draft Articles of the International Law Commission on Prevention of Transboundary Harm from Hazardous Activities (Yearbook of the International Law Commission, 2001, Vol. II, Part Two); Private sector guidelines and codes Berlin Guidelines on Mining and Sustainable Development (1994) revised 2002 ISO 14000

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