Sources of International Environmental Law

explore the structure of IEL - sources, legal principles that underlie this field

●​ Art 38 VCLT
○​ Treaties, customary law (e.g. tomorrow), general principles of law, judicial
decisions and teachings.
○​ Why so many? Environmental issues are not limited by borders and
collaboration is needed. E.g. rivers can travel through multiple countries.
○​ Relevance of national law:
■​ International agreements are implemented on the national level.
(directly if monistic country, indirectly in dualist states)
●​ Jus cogens: could ecocide become jus cogens?
●​ Soft law: not binding but not unimportant either. It can be used to interpret legally
binding agreements. I can prepare or predict what will become binding international
law.
○​ Stockholm Declaration and the language of SGS in 1982
○​ Why so many soft law instruments? 1. States don't want to be bound but they
want to show that they are committed. 2. Number of states and diversity of
states. They are different in development, economic focus etc. their interests
are different.

International Organisations
Governmental organisations
​ general/specialised
​ global /regional
Non-governmental organisation (NGO’s) - lobbying.

Compliance and Enforcement

Case Summary Judgement/Relevance

Costa Rica/ Costa Rica filed an application against Court asked both countries to refrain from
Nicaragua cases Nicaragua. activities in the contested territory.
→ use of force and undermining
Contested territory territorial integrity Principles of IEL:
Nicaragua haad occupied territory of No harm principle
Alteration of river Costa Rica by constructing a canal that
that has effects on altered the flow of the water from the San
both countries Juan River to the Colorado River. This Have to make an environmental impact
could cause damage to the territory of assessment (EIA) for every project that can
Principles of IEL Costa Rica, the wildlife and nature. be

Threshold: not every pollution is significant

2018: N. dug new canals

COMPENSATION: for the first time the court
looked at the cost for damage caused to the
environment. How to value loss of
 biodiversity?

ICJ Pulp Mills Argentina and Uruguay - water pollution Customary international law. Principle 17 of
(2010) in Uruguay from pulp from paper mills. the Rio Declaration became binding through
The river flows in both countries. ICJ judgement.
Imminent threat of
irreparable The Statute of River Uruguay allows for Obligation to inform river basin commission
damage the mills to be constructed near the river. so as to enable

Precautionary principle in IEL (not customary

law yet). They said it's relevant.

Whaling (2014) Australia brought a case against Japan ICJ accepts the case because the region is
on the issue of whaling in the high seas in claimed waters of Australia. (even if its not
Case concerning of the Antarctic. accepted by other states, the court accepted
waters outside of the argument)
national territory. Australia: Japan is breaching the ICRW -​ The whales migrate to the Australian
(International Convention on the coast
Regulation of Whaling) because it is ICJ assesses the claims: no scientific
disguising commercial whaling as production of a 20 year old research, whale
research meat sold in Japan
→ ICJ ordered Japan to revoke any
Is Australia an injured state? authorisation, permit or licence to kill, take or
treat whales and refrain from granting any
further permits.

(Japan withdrew from the ICRW, so the

obligation doesn’t exist anymore)

ICJ Hungary objects to the building of dams ICJ: pacta sunt servanda but have to follow
Gabcikovo-Nagym in the Danube river by Slovakia and obligations with a new outlook to the
aros case (1997) invokes principles of precaution. environment.
Slovakia argues that the project was
agreed in 1977. (soviet times) The obligations have to be complied with but
with consideration to the environment:
sustainable development calls for integration
economy-environment.

ICJ tells the states to go back to the

negotiation table to

ICJ Nuclear Test Australia, New Zealand & France. France The principles could not be discussed since
cases (1974) was testing nuclear weapons in the the cases were stopped.
atmosphere.
No harm principle Australia tried to launch a new case but
EIA principle The case stopped because France France stopped again.
Precautionary stopped the tests and resumed
principle underground testing.

\Enforcement of IL
●​ By injured states
○​ Report to conference of the parties
○​ Bring a dispute to the ICJ
 ●​ Compliance committees
○​ Instituted in a treaty (e.g. compliance Committee Kyoto)
■​ The enforcement branch was removed in the Paris Agreement
●​ Rules of general international law apply always even in the absence of treaty
provisions

International Courts and Tribunals

●​ ICJ (states must acce[t jurisdiction of the state)
○​ can issue interim measures in case of imminent threat. Can order states to
stop their contentious activities.
○​ Advisory opinions (Vanuatu)
○​ Chamber of environmental matters (0 cases.
●​ International Tribunal on the Law of the Sea (ITLOS)
●​ World Trade Organisation (WTO)
●​ Permanent Court of Arbitration (PCA)
●​ Ad hoc tribunals

Issue: areas beyond national jurisdiction (high seas, space, Antarctic etc.)

Regional Courts
●​ CJEU
○​ EUL but also IL
■​ EU can be a party to conventions
■​ MOX Plant case: the Court condemned Ireland for addressing ITLOS
on a dispute with the UK on radioactive contamination (precedence of
EU law)
●​ Human rights courts: ECHR, Inter American Court of HR, African Court on Human
and Peoples Rights (for citizens and other non-state actors)
●​ Proposals for an international court for the environment

WTO dispute settlement

●​ Article 20 of GATT. (disputes often on technical barriers to trade (TBT)
○​ “Necessary to protect human, animal or plant life or health” & “conservation of
exhaustible natural resources”
■​ Cannot discriminate in trade

Tuna cases at WTO Dispute Settlement Body and Appellate Body

Mexico and USA - Mexico and other countries took the USA to court because they tried to
ban “dolphin free” tuna.
Discrimination labels
This requires Mexican fishermen to follow US law and the tuna are outside of US jurisdiction.
Hinders free trade.
→ hard to use Article 20 of GATT

Shrimp - turtle cases

Thailand and the USA. The USA banned shrimp caught using methods that might kill sea
 turtles. They accept shrimp caught with TED devices (turtle excluding devices)
Cannot impose new technologies in a developing country. WTO argues you can give them
incentives but cannot impose it.
→ you have to negotiate and help countries to comply with policies.

Beef hormones case (1997)

EU tried to ban beef from the USA invoking the precautionary principle.
→ precautionary principle is not part of customary international law and cannot be used by the
WTO.

Permanent Court of Arbitration (the decisions are not far reaching and do not become
norms like judgments of the ICJ, therefore they can be more daring in their judgments, they
accept all principles as well)

Iron Rhine arbitration Belgium and Netherlands. The 1839 Separation Treaty says
(2005) that the railway between Antwerp and Germany that crosses in
the NL has to be kept open for trade. The railway fell in disuse
and EU law designated it as protected natural territory. NL
argues they cannot open the railway line because it contradicts
EU law.
PCA: pacta sunt servanda, railway has to be reopened.BUT
have to renegotiate and open the railway without harming the
nature. Integrate economy and environment.

Cases by other courts - ITLOS (MOX Plant case, Yellowfin tuna case, Arctic sunrise case)