This panel was convened at 11:15 a.m., Thursday, March 24, by its moderator, Caroline Foster of the University of Auckland, who introduced the panelists: Ronald J. Bettauer of the George Washington University Law School; Malgosia Fitzmaurice of the University of London; Natalie Klein of Macquarie Law School; and Cymie R. Payne of Lewis & Clark College of Law. **
When I was approached to participate on this panel, I said that I had difficulty both with the title of the panel and the paragraph describing it. The organizers understood this and encouraged me to explain my perspective.
This panel is titled "International Environmental Law-Making and the International Court of Justice." But, of course, according to Article 38 of the Court's Statute, (1) the Court is called on to decide cases in accordance with existing international law rather than to make new international law. New international law--including international environmental law-is made by states, either through treaties or the development of customary international law. The Court has had little to do with this.
The description of this panel states that the Court "remains the forum of choice for disputes involving environmental issues." I don't think this is true.
Finally, the panel description asks whether the Court "is capable of meeting the growing demand for global environmental governance." But the predicate for this question seems doubtful: while some may wish for a system of global environmental governance, I don't see a demand for such a system among the states that would have to create it and live under it, and I certainly don't see the Court as the UN organ that would be the institution to meet that demand if it existed.
I will begin by addressing how environmental law is developed. It is not by the Court. Taking the Pulp Mills case, (2) for example, the source of law in that case was a bilateral treaty between Argentina and Uruguay, the 1975 Statute of the River Uruguay. (3) The Court decided the case under that treaty. In passing, it did remark that customary international law requires both that a state exercise due diligence in not allowing knowingly its territory to be used contrary to the rights of other states, (4) and that an environmental impact assessment be prepared where there is a risk that a proposed industrial activity may have a significant adverse impact on a shared natural resource. (5) But I do not believe these two dicta constitute a real contribution, since I think these were customary international law requirements many years ago.
By the mid-1970s, there were some 300 bilateral treaties concerning water resources shared between states. (6) Looking at those treaties and the injunction in Principle 21 of the Stockholm Declaration that states have "the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction," a United Nations Environment Programme (UNEP) legal experts group adopted principles in the mid-1970s that provided, among other things, that states have "the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction" and that states should "make environmental assessment before engaging in any activity with respect to a shared natural resource which may create a risk of significantly affecting the environment of another State or States sharing that resource." (7)
Of course, the fact that such principles are reflected in a large number of bilateral treaties and adopted without dissent at an international organization does not necessarily mean that they reflect customary international law as opposed to being the lex specialis of the particular treaties and recommendations of the organization. But this congruence can be an indication that such principles have become customary law. While the UN General Assembly resolution recommending these principles did not take a position on whether they were legally binding, (8) I can report that I was the U.S. representative to the...