The Relevance of International Legal Obligations Relating to Environmental Impact Assessments to Bermuda

The Relevance of International Legal Obligations Relating to Environmental Impact Assessments to Bermuda

The United Kingdom (the “UK”) is party to many international treaty obligations but how far do these international treaty obligations extend to UK territories? This question was considered in the recent case of BEST v Minister of Home Affairs [2014] SC (Bda) 61 App (6 August 2014). Given the legal autonomy Bermuda has to the UK, this case raises an interesting legal issue.

The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was adopted at Aarhus, Denmark, on June 25, 1998 (the “Aarhus Convention”). The Aarhus Convention, among other things, outlines specific procedural and content elements of an Environmental Impact Assessment and establishes a number of rights of the public as relates to environmental decision making.

The United Kingdom ratified the Aarhus Convention on February 25, 2005 and did not limit the territorial application.

It was submitted by counsel on behalf of the Bermuda Environmental and Sustainability Task Force (“BEST”) that the effect of the UK not limiting the territorial application of the Aarhus Convention was that it extended to Bermuda.

BEST’s basis for this argument was based on principles contained in the Vienna Convention of the Law of Treaties (the “Vienna Convention”). Article 29 of the Vienna Convention addresses the territorial scope of treaties and states that “Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.”

While the Chief Justice did note that the provision in Article 29 was the classical international legal principle, he noted that it was subject to modification by state practice. Additionally, the use of the words “entire territory” was somewhat ambiguous, and the Chief Justice went on to consider how the territorial scope provision had been implemented in past practice.

Counsel, on behalf of the Minister responsible for planning, relied upon the United Nations ‘Final clauses of Multilateral Treaties Handbook’ (2003),which described the UK practice in terms of signifying the territorial scope of its treaty obligations as follows:

“When expressing consent to be bound, the United Kingdom may declare in writing to the depositary to which, if any, of its territories the treaty will extend. If the instrument expressing consent to be bound refers only to the United Kingdom of Great Britain and Northern Ireland, it applies only to the metropolitan country.”

In the present circumstances, the UK was listed as a party to the Aarhus Convention but the court noted that there had been no express extension of the Aarhus Convention to Bermuda. The court considered the explanation in Ian Hendry and Susan Dickson’s ‘British Overseas Territories’:

“If the instrument states that the treaty is being ratified in the name of ‘the
United Kingdom of Great Britain and Northern Ireland, it is the practice of
the United Kingdom, in the absence of any contrary indication, to regard the
treaty as not applying to any of its territories. This approach to treaty
ratification has been applied consistently since 1967, and thus in the United
Kingdom Government’s view meets the requirement in Article 29 of the
Vienna Convention to establish a different intention, and is one with which
international organisations and other States seem content.”

The Chief Justice took a pragmatic approach and held that the Aarhus Convention did not extend to Bermuda. However, the Chief Justice did note that the Bermuda court would construe laws in manner consistent with its obligations under international law and, although not bound to do so, would expect a domestic tribunal to give effect to international commitments and declarations of policy, unless there were good reasons not to do so.