The limits of judicial mechanisms for developing and enforcing international environmental norms.

Position:Proceedings of the 2015 Annual Meeting of the American Society of International Law: Adapting to a Rapidly Changing World - Discussion
 
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This panel was convened at 9:00 p.m., Friday, April 10, by its moderators Nienke Grossman, of the University of Baltimore, and Jacqueline Peel, of the University of Melbourne, who introduced the panelists: Alan Boyle of the University of Edinburgh School of Law/Essex Court Chambers, London; Philippe Gautier of the International Tribunal for the Law of the Sea; Marcos Orellana of the Centre for International Environmental Law; and Cymie Payne of Rutgers University.

INTRODUCTORY REMARKS BY NIENKE GROSSMAN * AND JACQUELINE PEEL ([dagger])

International courts and tribunals have played a key role in the development of principles and norms of international environmental law. Over the last two decades, such bodies have been asked to resolve a growing number of disputes that involve environmental issues. The types of issues considered by international courts and tribunals in environmental disputes have also expanded in scope and complexity. For instance, disputes concerning environmental matters may involve claims of state responsibility, law of the sea questions, human rights issues, or trade and investment aspects.

Focusing on judicial mechanisms, this session asked panelists to consider how international environmental norms develop and are applied where key states disengage from the available lawmaking processes or disagree on the substantive content of the norms. Given the apparent lack of commitment or consensus on norms in some cases, a central question raised was whether international courts and tribunals are equipped to develop and apply the law case-by-case.

The session also considered to what extent these bodies might impede, rather than advance, positive normative developments. In this regard the session canvassed promising alternatives and potential reforms to dispute resolution processes. The session, co-sponsored by the International Courts and Tribunals Interest Group (ICTIG) and the International Environmental Law Interest Group (IEnLIG), took a roundtable format where panel members were asked to respond to a series of questions put by co-moderators Nienke Grossman (University of Baltimore School of Law; co-chair ICTIG) and Jacqueline Peel (Melbourne Law School; co-chair IEnLIG).

Panelists were asked for their reflections on the benefits and potential limits of judicial mechanisms in developing and enforcing international environmental norms, and as part of the overall landscape of international environmental governance. Issues canvassed by the panel included:

* Whether it is possible to characterize a dispute as purely environmental in nature;

* Whether the proliferation of international courts and tribunals and other mechanisms for dispute resolution aids or hampers the development and enforcement of international environmental norms;

* How international courts and tribunals fare in their consideration of technical and scientific material, which regularly features in environmental disputes; and

* What role non-state actors, particularly non-profit environmental organizations, should play in cases raising environmental issues.

Members of the panel were: Alan Boyle, Barrister and Professor of Public International Law, Edinburgh Law School; Philippe Gautier, Registrar, International Tribunal for the Law of the Sea; Marcos Orellana, Director, Human Rights and Environment Program, Center for International Environmental Law; and Cymie Payne, Assistant Professor, Department of Human Ecology and School of Law, Rutgers University. Remarks from each of the panelists follow.

* Associate Professor at the University of Baltimore School of Law where she teaches International Law, an International Environmental Law Seminar. International Criminal Law, and Conflict of Laws.

([dagger]) Professor of Law at the University of Melbourne Law School and an expert in the fields of environmental and climate change law.

THE ROLE OF INTERNATIONAL COURTS AND TRIBUNALS IN THE DEVELOPMENT OF ENVIRONMENTAL LAW

By Philippe Gautier *

We may all agree that international environmental law has developed significantly over the last twenty years, an evolution which is reflected in the increased number of judicial decisions rendered in environmental cases. However, the role of international courts in the development of international law is rather limited. Their task is to apply the law to a specific situation in order to settle a dispute. By doing so, they may provide answers which ensure a consistent approach in the implementation of environmental law. It is from that limited perspective that judicial pronouncements may contribute to the development of international law.

In its jurisprudence, the International Tribunal for the Law of the Sea (Tribunal) has already dealt with a number of environmental cases, particularly in the context of proceedings relating to the prescription of provisional measures under Article 290 of the United Nations Convention on the Law of the Sea (Convention). The Tribunal is then competent, pending a decision on the merits, to prescribe provisional measures "to preserve the respective rights of the parties to the dispute," as well as "to prevent serious harm to the marine environment."

In this context, the first experience of the Tribunal in environmental matters took place in 1999 with the Southern Bluefin Tuna cases (New Zealand v. Japan', Australia v. Japan). New Zealand and Australia claimed that by conducting an experimental fishing program for Southern Bluefin Tuna, Japan was breaching its obligation, under Articles 64 and 116 to 119 of the Convention, to cooperate with a view to ensuring conservation of bluefin tuna species. They further contended that the experimental fishing program would endanger the existence of the stock. In its order of August 27, 1999, the Tribunal prescribed, as a provisional measure, that the three states concerned should ' 'each refrain from conducting an experimental fishing programme involving the taking of a catch of southern bluefin tuna" in excess of the total allowable catches last agreed by the parties. This case is particularly illustrative of the interest of provisional measures proceedings in environmental disputes. This may be expressed as follows:

* Provisional measures proceedings constitute a useful tool to preserve the marine environment against a risk of serious harm. The term "serious" should be here underlined. In other words, the threshold for determining the need for provisional measures is lower than the criterion of "irreparable harm," which is used in the jurisprudence of the International Court of Justice (ICJ).

* Provisional measures proceedings are an efficient tool. The measures prescribed are binding on the parties which have to submit a report on the action taken to implement them.

* The case demonstrates that general obligations (such as the obligation to cooperate under Article 64, the obligation to preserve the marine environment under Article 192, or the duties of the flag states under Article 94) contained in the Convention are powerful tools to ensure compliance with environmental law. A state which claims that such obligations have been violated may bring the dispute to an international court or tribunal and request provisional measures to prevent damage to the environment.

* A last comment concerns the influence of international courts and tribunals in the development of environmental law. In the Southern Bluefin Tuna cases, the Tribunal stated that "the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment." (1) This may be seen as stating the obvious. In fact this is not the case if we consider that the provision which imposes on states the obligation to protect and preserve the marine environment- - Article 192--is contained in Part XII of the Convention, which deals with marine pollution, not fisheries. Nevertheless, the Tribunal made it clear that such a general obligation is not limited to pollution and is equally applicable to the protection of fish stocks. Another contribution of the Tribunal in the field of environmental law is the protection of procedural rights. Those rights (e.g., to be consulted, to be informed of the effects of an activity on the marine environment) are particularly relevant in environmental disputes which often originate in a lack of cooperation between the States concerned.

FORUM SHOPPING AND THE ROLE OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA IN ENVIRONMENTAL CASES

It should first be noted that the expression "forum shopping" in international litigation is misleading because, whenever a state contemplates recourse to judicial means, the first issue it is faced with is not to choose between different courts, but rather to find a way to have access to justice. In this context, the compulsory mechanism in Part XV of the Convention is remarkable; it entitles states to institute proceedings unilaterally in order to protect their rights under the Convention. The number of cases instituted on the basis of Part XV since the entry into force of the Convention shows that, whenever a compulsory system for the settlement of disputes is in place, it is widely used" by the international community.

Under Part XV of the Convention, states parties may choose, by a declaration, the forum (Tribunal, ICJ, or arbitration) to which their disputes should be submitted. However, if the parties to the dispute have not made a declaration selecting the same forum, arbitration will be the compulsory means. In practice, in light of the declarations made so far, in most instances no forum shopping will exist and arbitration will be the only mechanism available to the parties to a dispute, except if they agree to submit or transfer the dispute to the Tribunal.

The jurisdiction of the Tribunal is limited to cases relating to the Convention and other international agreements relating to...

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