This book is the culmination of a project which started in August 2005, when the board of the Stockholm Environmental Law and Policy Centre adopted, on its agenda, the plan for an international conference on environmental law and justice. The plans materialised, and the ‘2006 Stockholm Conference on Environmental Law and Justice’ took place at Stockholm University on 6–9 September 2006. The project could not have been accomplished without the generous support of the Swedish Research Council (Vetenskapsrådet), the Bank of Sweden Tercentenary Foundation (Riksbankens Jubileumsfond), the Swedish Research Council for Environment, Agricultural Sciences and Spatial Planning (Formas), the Cassel Foundation (Casselstiftelsen), the Department of Law, Stockholm University, and Nordforsk through the Nordic Environmental Law Network (NELN). In addition, the Stockholm Consumer Cooperative Society (Stockholms Konsumentförening) supported the conference with Fair Trade coffee and sweets.

Almost all contributions are based on papers presented at the conference. We are grateful to all the contributors for their co-operation and patience. All were generous with their time. We are particularly grateful to William Twining for advice in carrying through the book project, and to Hanne Petersen, who, although not a conference participant, responded readily to our request to fill a significant gap in the book's content. In selecting the speakers for the conference, and thus the contributors to this book, we were supported by the other members of the conference organising committee, Jutta Brunnée, Ludwig Krämer and Richard Falk.

Introduction

Questions of environmental justice, whether in the form of procedural rights or corrective remedies, as such, have on the whole not featured prominently in the legal developments governing the conduct of war. One of the unintended consequences of the Gulf War of 1991 was that it brought to the fore in profound and unexpected ways the seriousness of environmental damage caused by warfare. International conferences, United Nations agencies and the academic literature immediately started treating the issue as one of some urgency, requiring coherent and comprehensive action at the international level. There were even suggestions that a third Additional Protocol to the Geneva Conventions specifically dedicated to preventing environmental damage should be enacted. Central to these debates was the realisation that the existing normative framework did not contain procedural and substantive constraints for preventing environmental damage. The debates also revealed other significant gaps in the substantive content of responsibility for war-related damage, which had not, until now, addressed the question of who should bear responsibility for environmental damage and what form the distribution of burdens and risks should take.

This chapter takes as its starting point the inevitability of war as an activity, which although not always sanctioned by international law is nevertheless regulated by it, in particular, in terms of minimising its effects. A number of chapters in this volume consider participatory rights as the most developed medium for the realisation of environmental justice.

INTRODUCTION

When I began my research in this field a few years ago I assumed, like many writing about international environmental law, that the Trail Smelter dispute would provide a useful starting point from which to assess the framework of accountability that existed in international law for transboundary air pollution damage. The Tribunal's famous pronouncement, “that under the principles of international law, as well as 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 of persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence,” had in many ways irrevocably confirmed that transboundary environmental damage, and specifically transboundary air pollution, entailed state responsibility.

The precedential value of this passage had been acknowledged in diverse contexts such as water disputes, pollution of the seas, and in various neighbourhood disputes between European States, as well as in the extensive literature that proliferated in the period after the Stockholm Conference on the Human Environment. It substantially informed the work of the International Law Commission on the Non-Navigational Uses of International Watercourses, and on Liability for Injurious Consequences of Acts not Prohibited by International Law. It also was unequivocally endorsed, either directly or in form, in the many environmental treaties that were enacted in the wake of the Stockholm Conference.