32.1.1 Non-discrimination and Equality of Access to National Remedies

Equality of access to transboundary remedies is based on the principle of non-discrimination which means that where domestic remedies are already available to deal with environmental problems, international law may be used to ensure that the benefit of these remedies is extended to transboundary claimants.457 Article 32 sets out ‘the basic principle that watercourse states are to grant access to their judicial and other procedures without discrimination on the basis of nationality, residence or the place where the damage occurred’.458 Article 32 provides that where significant harm459 is or is likely to be caused by activities in one state, which may adversely affect foreign nationals (non-citizens or nonresidents) who are residing in that state or such harm crosses international boundaries, potentially affecting the citizens of another watercourse state, both classes of persons have the procedural right to pursue their claims and seek remedies in the domestic courts of the country where the cause of injury originated.460 According to the ILC commentary ‘persons who… have suffered or are under a serious threat of suffering’ significant harm, means that Article 32 is applicable ‘both to cases involving actual harm and to those in which the harm is prospective in nature’.461

The guarantee of equality of access and nondiscrimination for such persons gives these persons access to the foreign national courts or ‘any other procedures’ in this foreign jurisdiction – these ‘other procedures’ could include the provision of access to information concerning the environmental risk, participation in hearings, preliminary enquiries, participation in the domestic land-use planning development control or pollution licensing procedures that relate to the offending use, and the obtainment of compensation.462 However, states can require that nonresidents or non-citizens provide a bond in order to utilise a national Court system to cover court costs and fees.463

An important note – the Article 32 non-discrimination rule is residual in that if ‘the states concerned have agreed otherwise’, they do not have to follow the procedure of Article 32. However, they must still provide an alternative inter-state procedure for resolution of such disputes, for example through diplomatic channels.464

457 Birnie, Boyle and Redgwell, International Law and the Environment at 304. See also O McIntyre Environmental protection of international watercourses under international law at 350.

458 1994 Draft Articles at 132.

459 Ibid at 133.

460 McCaffrey, The Law of International Watercourses at 510.

461 1994 Draft Articles at 133 and see Trail Smelter Arbitration, 33 AJIL (1939) 182 & 35 AJIL (1942).

462 See 1988 General Code of Procedure and for Commentary Birnie, Boyle and Redgwell, International Law and the Environment at 308.

463 1994 Draft Articles at 132.

464 Ibid at 133.