10 Jun In Doubt, Favour Nature? Analysing Status and Justifications for In Dubio Pro Natura as a Rule for Environmental Treaty Interpretation.
[Lavinia Stoppani is a recent graduate of the LL.B. programme in International and European Law at the University of Groningen, with research interests in environmental law and treaty interpretation]
Introduction
In 1997, the International Court of Justice (ICJ) delivered its landmark judgment in the Gabčíkovo-Nagymaros case. Judge Herczegh appended a dissenting opinion in which he argued that where uncertainty exists between short term economic loss and potentially irreversible environmental harm, the latter ought to carry greater weight; citing the maxim ‘in dubio pro natura’ (p. 184). The reference alludes to the principle that:
i.e. In doubt, favour nature.
In recent years this principle has become increasingly used within domestic jurisdictions. Previous blog contributions (see here, and here) have already discussed how, particularly in Latin America, courts have begun to prioritise the interests of nature to ensure its effective protection. However, at the international level, in dubio pro natura remains ambiguous. What is the content of the principle? Is it a rule of interpretation recognised in customary international law (CIL)? Can it nevertheless be accommodated within the established framework for treaty interpretation under the Vienna Convention on the Law of Treaties (VCLT)? These are the questions this blog explores.
The Existence of (Legal) ‘Doubt’
In dubio pro natura, as the name suggests, works to resolve situations of ‘doubt’. In the context of judicial decisions ‘doubt’ refers to situations of uncertainty. This aspect often leads to the conflation of in dubio pro natura with the precautionary principle, which requires protective action to be taken against a potential risk of ‘serious or irreversible environmental damage’ even in the absence of scientific certainty confirming this risk (1992 Rio Declaration, Principle 15). However, whereas the precautionary principle refers to scientific uncertainty, in dubio pro natura relates to legal uncertainty.
Legal uncertainty includes, firstly, cases of linguistic ambiguity, where the meaning of a term is uncertain either because it carries more than one meaning, or because evolving societal and legal circumstances have called its meaning into question (here, evolutive interpretation may come into play. E.g.: Dispute Regarding Navigational and Related Rights, para 63 et seq). Secondly, where there is ambiguity as to the scope and/or threshold of a provision, where the applicability of the provision is uncertain. Moreover, doubt may arise due to the existence of separate, perhaps contradicting, rules dealing with equal or similar subject matters, leading to uncertainty as to which rule applies. Finally, uncertainty may arise where a treaty remains silent on an issue (either deliberately or inadvertently), at which point it may be necessary to consider whether its existing provisions may be extended in scope so as to fill this gap. To illustrate, consider the recent Advisory Opinion on Climate Change, which discussed whether the meaning of ‘pollution’ extended to greenhouse gas emissions, as well as the relationship between the Law of the Sea Convention (LOSC) and the UN Climate Change regime.
An Emerging Rule of Interpretation in CIL?
In reconstructing the origin of in dubio pro natura, Serena Baldin and Sara De Vido rely on the constitutional and judicial practice of Ecuador, Costa Rica, Mexico, and Brazil, to argue that the principle may be considered an emerging rule of regional CIL (pp. 25-27). But is there state practice (and opinio juris) also pointing to it being a general rule of CIL?
Presently, explicit formulation of the principle can be found only in the 2016 ‘World Declaration on the Environmental Rule of Law’ (hereinafter: IUCN Declaration) drafted by the International Union for Conservation of Nature. Principle 5 states:
‘In cases of doubt, all matters before courts, administrative agencies, and other decision-makers shall be resolved in a way most likely to favour the protection and conservation of the environment, with preference to be given to alternatives that are least harmful to the environment.’
As a soft-law document, the IUCN Declaration remains non-binding; and although adopted in an international forum comprising State representatives, it ‘does not represent a formally negotiated outcome’ and cannot be attributed to any State actor (p. 5). Therefore, it cannot be taken as evidence of the State practice and opinio juris required to establish CIL. Yet, it could be seen as reflecting emerging consensus among institutional and legal experts as to the content of the principle. Additionally, it could function as a ‘catalyst’ to stimulate, domestically, a general practice capable of establishing a rule of CIL. Here, case-law from Argentina and Pakistan already shows how the IUCN Declaration may function as a reference point for domestic courts applying in dubio pro natura.
In Dubio Pro Natura Under the VCLT
Absence of general CIL status does not render in dubio pro natura entirely inapplicable. The question is whether the principle may be accommodated within the existing framework for treaty interpretation. According to Art 31(1) VCLT, a treaty must be interpreted in accordance with the ordinary meaning to be given to its terms, taken in its context, and in light of its object and purpose. This general rule has been used, for instance, to accommodate the pro homine principle of human rights law.
As explained by Judge Serghides (European Court of Human Rights), in cases of doubt the pro homine principle requires judges to show:
‘a preference for that interpretation which is more favourable to the right and its holder (in dubio in favorem pro liberate or in dubio pro persona)’
(p. 3). Pro homine finds justification in the principle of effectiveness, which is also found in the more general VCLT framework of interpretation as a ‘specific application’ of the treaty’s object and purpose (VCLT Commentary, pp. 578-579, para 34). Applying the same logic to in dubio pro natura, where a treaty’s object and purpose is the protection of the environment, the principle of effectiveness would direct the interpreter towards the interpretation that better serves the treaty’s protective object and purpose, because only then would the treaty produce the intended effects.
However, when making this analogy, one should question whether it is possible to group environmental treaties under a single protective purpose; or more generally, what the object and purpose of environmental treaties is, and whether it is comparable to that of human rights treaties. Moreover, the pro homine principle directs to the interpretation ‘more favourable to the right and its holder’. However, when it comes to the environment, what rights does nature have? Various blog contributions have already discussed the issue of nature as a subject of rights, and their interpretative relevance (e.g. here). Therefore, present observations are limited to the argument regarding the object and purpose of environmental treaties.
Here, the analogy becomes muddled. Differently from human rights treaties, environmental treaties lack a unified objective, their purpose ranging, inter alia, from conservation, to sustainable development and resource management. Given this diverse landscape, the application of in dubio pro natura would have to be analysed on a case-by-case basis, with the principle presenting a stronger affinity with certain treaties than others. This is particularly due to the fact that in dubio pro natura puts environmental protection as an end in itself (as argued here), which reflects a more ecological, rather than anthropocentric, conception of environmental law.
To illustrate, the Convention on Biological Diversity (CBD) aims for the conservation of biological diversity, its sustainable use, and the fair and equitable sharing of the benefits to be derived from it (Art. 1). Given its protective scope, in dubio pro natura easily fits with the conservation of biodiversity. However, does it similarly apply to the more human-centered provisions on sustainable use and equitable sharing? The CBD’s preamble recognises ‘the intrinsic value of biological diversity’, therefore it acknowledges ‘the inherent right of all components of biodiversity to exist independent of their value to humans’ (as stated here). This brings its object and purpose closer to ecological integrity. When interpreting the Convention, the protection of biodiversity must be taken into account, as the CBD’s effectiveness would be undermined if this objective was considered operative only within the context of the conservation-specific provisions. Applying in dubio pro natura to provisions dealing with sustainable development or equitable sharing would ensure that the pursuit of these objectives is not interpreted in a manner that renders the treaty’s conservation purpose ineffective.
The use of in dubio pro natura becomes harder to justify in the interpretation of treaties that do not concern ecological integrity per se, such as the LOSC, whose rationale behind its environmental regime stemmed from the fact that States considered it necessary to address issues of marine conservation as an extension of the fact that various activities regulated under the Convention have negative impacts on the marine environment (Virginia Commentary, part XII para 2). Given that States’ interests as to the use of their own maritime zones is an equally important objective under the Convention, prioritising nature becomes harder to justify.
Alternatively, in dubio pro natura may find justification through Art. 31(3)(c) VCLT (systemic integration). Here, in dubio pro natura would have to be a ‘relevant rule of international law applicable in the relations between the parties’. To qualify as a ‘rule’, it would need to stem from a formal source of international law (International Law Commission (ILC) Report, para 426); and to be ‘applicable’, it would, on the predominant view, need to be binding. Finally, its relevance would depend on the proximity of the principle to the treaty in question (Merkouris, para 24 and 34 et seq); given its ecological framing, the observations made above with respect to object and purpose apply equally here.
These requirements present significant constraints. As an emerging local custom in Latin America, in dubio pro natura could conceivably be invoked in the interpretation of treaties binding on Latin American States. For instance, in a dispute between Ecuador and Costa Rica, both of which have recognised the principle domestically, a Court might treat it as ‘applicable in the relations between the parties’. However, the OSPAR Arbitration demonstrates the difficulty of relying on principles still in ‘statu nascendi’ (paras 99-105); and even if the regional custom argument were accepted, the question remains: does ‘parties’ under Art. 31(3)(c) refers to parties to the treaty or to the dispute? This distinction determines whether the principle could extend beyond bilateral or regional treaties to multilateral instruments (Merkouris, para 25 et seq). Ultimately, until in dubio pro natura either reaches general CIL status, that of a general principle, or is incorporated in a binding international agreement, it will likely not be invokable through Art. 31(3)(c) VCLT.
Finally, as a non-binding principle, in dubio pro natura could be relied on as supplementary means of interpretation through Art 32 VCLT, which allows for recourse to be made to materials falling outside the scope of Art 31. Particularly, to the preparatory work of the treaty, either to ‘confirm’ meaning established through the general rule, or to ‘determine’ meaning when it remains ambiguous. ‘Preparatory work’ has been interpreted as to include soft-law documents, however only insofar as they played a significant role in the drafting and adoption of a treaty’s text, or functioned as the inception of the drafting process itself. E.g. in the Jadhav case, the ICJ took as preparatory work the ILC discussions on the draft text of the Vienna Convention on Consular Relations, which influenced its final text (paras 77-83). Additionally in Bosnian Genocide, the ICJ referred to the UN General Assembly Resolution A/RES/180 (II) as a document inspiring the Genocide Convention (para 163; See also: de Vries-Zou, pp. 43-44).
Overall, in dubio pro natura may be justified through the VCLT framework where a treaty’s object and purpose points toward environmental protection or ecological integrity. Absent a direct environmental link however, the principle is harder to justify through other interpretative methods, as they follow stricter requirements. As soft-law, it could be taken into account as supplementary means of interpretation, but even then, its relationship to the treaty in question would have to be clarified.
Photo attribution: by Vlad Hilitanu on Unsplash
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