Part IV Normative Development, Ch.27 Judicial Development

2021 ◽  
Author(s):  
Payne Cymie R
Keyword(s):  
Environmental Law ◽  
Legal Rule ◽  
Primary Role ◽  
Legal Norms ◽  
Normative Development ◽  
Human Interactions ◽  
International Court ◽  
High Degree ◽  
Advisory Opinions

This chapter examines the role of international judicial bodies' primary role with respect to the environment, which is to resolve disputes by deciding contentious cases and to guide the application of international law by issuing advisory opinions. International court and tribunals (ICTs) can influence the development of international environmental law by providing an authoritative articulation of a legal rule or principle. The chapter then looks at the development of legal norms for governing Earth's environment through ICT judgments. It describes the range of courts available, the remedies that they can offer, the capacity of ICTs to handle environmental problems, and problems that challenge their effectiveness in the overarching objective of providing a high degree of environmental quality. It does this whilst recognizing that courts and law are but one part of the system of governance, technology, politics, and economics that shapes human interactions with the environment.

The Absence of State Consent to Advisory Opinions of the International Court of Justice: Judicial and Political Restraints

2010 ◽  
Vol 24 (2) ◽  
pp. 191-207
Author(s):  
Mahasen Aljaghoub
Keyword(s):  
Main Role ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Integral Role ◽  
The Icj ◽  
Palestinian Territory ◽  
Advisory Opinions

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations, (UN) and its Statute is an integral part of the UN's Charter. The court's integral role within the UN has largely been misunderstood especially in the way the court has viewed its advisory jurisdiction. The ICJ always asserts that the delivery of an advisory opinion represents its participation in the UN's work and thus, in the absence of compelling reasons, a request for an opinion ought not to be refused. Some commentators note that the principle that the ICJ must participate in the work of the Organisation might sometimes conflict with its judicial character, which might result in not embracing the philosophy of “judicial restraint” in the court's advisory jurisdiction. They also contend that the absence of consent in advisory cases has led the court to overlook its judicial restraint. This article argues that those commentators have overlooked the main role of the ICJ's advisory function in clarifying the law and providing guidance for future action by the UN organs, and has consequently called for applying the principle of consent as a condition for giving an advisory opinion on questions relating to disputes pending between States. In the present article, the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory opinion is analysed to see whether the absence of Israeli consent has undermined the ICJ's judicial character. The author is of the view that the court, as the principal judicial organ of the UN, should, by a cautious judicial policy, provide enlightenment to the UN and participate to achieving its goals while at the same time adhering to its judicial character.

scholarly journals The Doctrine’s Role in the Field of Legal Regulation of Public Relations: Problems and Prospects

2019 ◽  
Vol 12 (5) ◽  
pp. 42
Author(s):  
Adel Abdullin ◽  
Ainur Gilmullin
Keyword(s):  
Public Relations ◽  
Legal Regulation ◽  
International Treaties ◽  
Legal Doctrine ◽  
International Court Of Justice ◽  
International Court ◽  
The Right ◽  
Advisory Opinions ◽  
Domestic Law

The paper contains a comprehensive analysis of the legal doctrine’s role in the field of legal regulation of public relations arising in modern public law practice. The theoretical and legal features of the legal doctrine are revealed. In particular, conclusions are drawn confirming the arguments that the legal doctrine allows building clear guidelines for the practice of lawmaking, enforcement of the right, and especially law enforcement and that the doctrine acts as a scientifically based criterion for the legitimacy, rationality, and effectiveness of states. Special attention is paid to the historical aspects of the legal doctrine development which have significance and influence on the formation and development of international and domestic law. Particular attention of the authors of the paper is drawn to the place and role of legal doctrine in international legal practice. The paper notes that the legal doctrine manifestation in the activities of modern states can be observed in such functions as prognostic, evaluation, regulatory, methodological, world outlook and ideological function. In addition, it is noted that the doctrine plays an important role in the activities of the UN International Court of Justice, where the doctrines of the most qualified specialists are often used in making decisions and drawing up advisory opinions; in the development of international treaties at international conferences and in international organizations, etc. Specific examples of the legal doctrine manifestations in the activities of the ECHR are given.

Part II Analytical Approaches, Ch.15 The Role of Science

2021 ◽  
Author(s):  
Johnston Sam
Keyword(s):  
Climate Change ◽  
Genetically Modified Organisms ◽  
Environmental Law ◽  
International Environmental Law ◽  
International Court Of Justice ◽  
International Court ◽  
The Subject ◽  
Dangerous Substances ◽  
Analytical Approaches

This chapter reflects on the crucial and multifaceted role of science in international environmental law, identifying and framing its challenges, threats, and problems. The role of science in international environmental law has been the subject of vigorous debate, focusing around competing claims concerning the need for action in almost every area of environmental regulation, such as climate change, restrictions on use of areas or resources such as fisheries, and restrictions on ‘dangerous’ substances such as genetically modified organisms (GMOs). The developing jurisprudence on the role of science in international environmental law articulated by various international tribunals such as the International Court of Justice (ICJ) highlights the important role that science plays in this field. The chapter then considers how science has influenced international environmental law and in turn, how international environmental law has contributed to the promotion of science. An emerging issue highlighted in the chapter is the increasing politicization of science and the need to understand the limitations of science.

Part IV Normative Development, Ch.23 Customary International Law and the Environment

2021 ◽  
Author(s):  
Dupuy Pierre-Marie ◽  
Le Moli Ginevra ◽  
Viñuales Jorge E
Keyword(s):  
International Law ◽  
Environmental Law ◽  
Case Law ◽  
Environmental Agreements ◽  
International Environmental Law ◽  
Customary International Law ◽  
Normative Development ◽  
Environmental Norms ◽  
Environmental Interests

This chapter highlights how, despite the large number of environmental agreements at all levels, the role of customary international law remains key in practice. First, many treaties in force remain largely unimplemented. Secondly, treaties only bind those states parties to them, and that introduces sometimes important variations in the scope of environmental agreements. Thirdly, there is at present no treaty formulating binding overarching principles interweaving sectorial environmental agreements. As a result, it is often necessary to revert to customary norms when difficulties of interpretation or implementation arise. Fourthly, custom is important to mediate between a range of environmental and non-environmental interests governed by different treaties. Finally, custom plays an important role in disputes concerning a disputed area or where there is no applicable treaty. The chapter then analyses the process of custom formation with reference to environmental norms in order to show both the ‘banality’ and the peculiarities of this process. It also looks at the content of customary international environmental law as recognized in the case law.

Sources of International Environmental Law

2018 ◽  
Author(s):  
Jutta Brunnée
Keyword(s):  
Environmental Law ◽  
International Environmental Law ◽  
International Court Of Justice ◽  
Stable Law ◽  
Legal Norms ◽  
Court Of Justice ◽  
International Court ◽  
The Law ◽  
Law Making

This chapter begins by outlining an alternate, ‘interactional’, understanding of the concept of ‘sources of law’, which it takes to refer to processes that are shaped by requirements of legality and through which legal norms are made and remade. This approach does not entail that the law-making methods listed in Article 38 of the International Court of Justice (ICJ) Statute have ceased to matter in international environmental law (IEL)—far from it. The interactional law framework takes seriously what international actors do. The chapter, therefore, explores the law-making processes listed in Article 38 in turn, and then moves on to consider newer processes. The interactional framework and its practice-based understanding of legality illuminate the existence of resilient and relatively stable law-making processes as well as the emergence of new law-making processes.

The Role of ICJ Procedure in the Emergence and Evolution of Erga Omnes Obligations

2020 ◽  
pp. 211-242
Author(s):  
Ravindra Pratap
Keyword(s):  
Judicial Discretion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Law ◽  
Fact Finding ◽  
Advisory Opinions

The International Court of Justice (ICJ) procedure has been, within and across contentious cases and advisory opinions, both a catalyst for, and a constraint on, the emergence and evolution of erga omnes obligations. Clarification, interpretation, and affirmation of the law have most frequently worked as catalysts for the emergence and evolution of erga omnes obligations. Judicial propriety and/or judicial discretion have most frequently tended to constrain the emergence and evolution of erga omnes obligations. Judicial propriety and/or judicial discretion, evidence, consent, and standing before the Court have been other catalysts. Formalism, jurisdiction, fact-finding, and interpretation have been other constraints on the emergence and evolution of erga omnes obligations.

An Application of the Principles of Environmental Law in Resolution of Environmental Disputes

2021 ◽  
pp. 103-109
Author(s):  
Alekseeva N. A. ◽  
Keyword(s):  
Environmental Law ◽  
Legal Regulation ◽  
Legal Norms ◽  
Environmental Disputes ◽  
Judicial Practice ◽  
Analysis And Synthesis ◽  
Judicial Lawmaking ◽  
Environmental Requirements ◽  
Legislative Support

This article examines principles of environmental law been applied by courts in their dispute resolution activities. The aim of the study is to systematize the applied in certain categories of cases principles. The tasks set by the author are to identify the correctness of the application, the correspondence of the meaning of the principle to which the court refers and the need set before the court – the dispute under consideration. Methods used in the article are method of analysis and synthesis that suits the goal. Environmental requirements and their corresponding principles are universal. The considered principles of environmental and land law are important in resolving legal disputes, playing the role of pillars of law, they are referenced in almost every court decision. Whether their indication in decisions is limited judicial lawmaking or elimination of a conflict, as well as the use of an analogy of law or law in the absence of an appropriate rule of law, is to be clarified in this study based on the analysis of judicial practice. Currently, there are a number of problems related to the application of the principles of environmental law, for example, the need to expand the list of principles of environmental law enshrined in legal norms with insufficient legislative support for the implementation. The environmental doctrine is developing actively nowadays; it provides a high probability of improving legal regulation in the field of environmental legal relations and the principles of environmental law in the future. Keywords: principles of environmental law, judicial practice in environmental disputes, application of the principles of environmental law by the courts, inconsistency of judicial practice with the essence of the principle

The International Rule of Law

2019 ◽  
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Global Justice ◽  
Structural Changes ◽  
Environmental Law ◽  
World Order ◽  
Legal Norms ◽  
The Impact ◽  
International Rule

The authors examine the role of international law in a changing global order. Can we, under the current significantly changing conditions, still observe an increasing juridification of international relations based on a universal understanding of values, or are we, to the contrary, rather facing a tendency towards an informalization or a reformalization of international law, or even an erosion of international legal norms? Would it be appropriate to revisit classical elements of international law in order to react to structural changes, which may give rise to a more polycentric or non-polar world order? Or are we simply observing a slump in the development towards an international rule of law based on a universal understanding of values? In eleven chapters and eleven comments, distinguished scholars reflect on how to approach these questions from historical, system-oriented and actor-centered perspectives. The contributions engage with the rise of European international law since the 17th century, the decay of the international rule of law, compliance as an indicator for the state of international law, international law and informal law-making in times of populism, the rule of environmental law and complex problems, human rights in Europe in a hostile environment, the influence of the BRICS states on international law, the impact of non-state actors on international law, international law’s contribution to global justice, the contestation of value-based norms and the international rule of law in light of legitimacy claims.

scholarly journals Review of the advisory role of the international court of justice

2010 ◽  
Vol 62 (4) ◽  
pp. 629-640
Author(s):  
Senad Ganic
Keyword(s):  
The Body ◽  
International Court Of Justice ◽  
Binding Effect ◽  
The Public ◽  
Court Of Justice ◽  
International Court ◽  
Starting Point ◽  
Advisory Opinions ◽  
Advisory Role

This paper presents a brief review and analysis of advisory proceedings before the International Court of Justice as well as an explanation of the nature and importance of advisory opinions as specific decisions of the International Court of Justice. The intention was to make the public more familiar with the nature of these proceedings drawing attention of the professional public to some specific elements that characterize advisory procedures, which in a sense make them closer to the proceedings in resolving disputes between states. Although not binding by their nature as are decisions of the Court, advisory opinions have, however, some weight and importance that primarily stem from the importance and authority of the body that provides them. A non-binding effect of advisory opinions is just a starting point in explaining them. Actually, it is the fact that opinions have a great authority and this requires some further explanations.

International Court of Justice: The Role of Consent in the Context of Judicial Propriety Deconstructed in Light of Chagos Archipelago

2019 ◽  
Vol 18 (2) ◽  
pp. 189-218
Author(s):  
Ksenia Polonskaya
Keyword(s):  
International Law ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Relevant Element ◽  
Advisory Opinions ◽  
Chagos Archipelago ◽  
Advisory Function

Abstract This article examines the notion of consent as an element of judicial propriety as defined by the International Court of Justice (ICJ) in the context of its advisory function. The article situates the issue of judicial propriety within a broader conversation on the Court’s normative outlooks in international law, and examines the most recent advisory opinion on the Chagos Archipelago to understand how the Court itself views its role in international law. The article concludes that the Court’s advisory opinions do not provide much clarity as to the circumstances in which a lack of consent will become a compelling enough reason to justify a refusal to give an advisory opinion. The Court appears to ritually recite consent as a relevant element in its assessment of judicial propriety, however, it continues to limit such relevance.

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