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Future Generations and International Law

States but rather the environment per se both in other States
and in areas beyond the limits of national jurisdiction.8 Second, when seen from
the perspective of the relations between international environmental law and
other branches of international law, principles and concepts may also perform a
‘conciliation function’. For example, the concept of sustainable development
serves as a conceptual matrix to articulate the sometimes inconsistent requirements of international environmental law and international economic law.9 As
mentioned by the ICJ in the Case concerning the Gabčíkovo-Nagymaros Project:
‘This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development’.
10
Third,
concepts and principles can also perform an ‘architectural’ function in that they
can lay the foundations of an environmental regime. For example, the climate
change regime has been built upon the principle of common but differentiated
responsibilities. The same regime serves to illustrate a fourth function of concepts and principles, namely their interpretation function. The preambles of
the Kyoto Protocol as well as certain decisions adopted by the Conference of the
Parties (‘COP’) to the UN Framework Convention on Climate Change or by
the Meeting of the Parties (‘CMP’) to the Kyoto Protocol refer to the principles
enshrined in Article 3 of the UNFCCC as a guide to interpretation.11
The
‘interpretive function’ also operates beyond the direct application of these
environmental norms and instruments, in particular when the application of
other international law norms is likely to have an impact on the environment. By
way of illustration, the ICJ has held that the principle of prevention of environmental damage must be taken into account when interpreting the terms of the
right to self-defence.12 Lastly, these principles can have a ‘decision-making
function’ or, in other words, operate as ‘primary norms’. To cite just one
example, the Trail Smelter Case – a leading environmental dispute – was decided
on the basis of the no harm principle.13
Finally, a fourth distinction can be made between principles relevant to the
notion of prevention in a broad sense and principles and concepts relevant to
considerations of balance. By ‘prevention’ we refer to the need to avoid, wherever
possible, environmental damage or change that would be difficult or impossible