Part VIII Compliance, Implementation, and Effectiveness, Ch.60 International Environmental Law Disputes Before International Courts and Tribunals

2021 ◽  
Author(s):  
Klein Natalie
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Environmental Law ◽  
Considerable Progress ◽  
Environmental Damage ◽  
International Environmental Law ◽  
International Courts ◽  
Ex Post ◽  
International Court ◽  
Ex Post Facto

This chapter examines how international environmental law (IEL) disputes are resolved before international courts and tribunals, addressing when parties will decide to litigate an IEL dispute as opposed to utilizing another form of dispute settlement. Assuming there is reason to pursue adjudication or arbitration, it looks at questions of jurisdiction. The chapter also considers preliminary matters that emerge in these cases, notably questions of standing and whether provisional measures are needed and may be secured before an international court or tribunal. It then turns to substantive matters, but only in the context of presentation of the case in terms of evidence and use of experts. Finally, the chapter assesses the available reparations in the resolution of IEL disputes before international courts and tribunals. Ultimately, considerable progress may be noted in respect of the use of international courts and tribunals for IEL disputes, but it is prudent to observe that in this area of international law, preventing the emergence of IEL disputes is ultimately more important than ex post facto responses to environmental damage.

scholarly journals International law protecting the environment during armed conflict: gaps and opportunities

2010 ◽  
Vol 92 (879) ◽  
pp. 569-592 ◽  
Author(s):  
Michael Bothe ◽  
Carl Bruch ◽  
Jordan Diamond ◽  
David Jensen
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Environmental Law ◽  
International Humanitarian Law ◽  
Environmental Damage ◽  
Humanitarian Law ◽  
International Environmental Law ◽  
Basic Principles ◽  
Principle Of Proportionality ◽  
Definition Of

AbstractThere are three key deficiencies in the existing body of international humanitarian law (IHL) relating to protection of the environment during armed conflict. First, the definition of impermissible environmental damage is both too restrictive and unclear; second, there are legal uncertainties regarding the protection of elements of the environment as civilian objects; and third, the application of the principle of proportionality where harm to the environment constitutes ‘collateral damage’ is also problematic. These gaps present specific opportunities for clarifying and developing the existing framework. One approach to addressing some of the inadequacies of IHL could be application of international environmental law during armed conflict. The detailed norms, standards, approaches, and mechanisms found in international environmental law might also help to clarify and extend basic principles of IHL to prevent, address, or assess liability for environmental damage incurred during armed conflict.

scholarly journals [BOOK REVIEW] The Peaceful Settlement of International Disputes

2019 ◽  
Vol 06 (01) ◽  
pp. 211-215
Author(s):  
Davina Oktivana
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Environmental Law ◽  
Law Students ◽  
Law Of The Sea ◽  
International Environmental Law ◽  
Extensive Analysis ◽  
Peaceful Settlement ◽  
International Dispute

Yoshifumi Tanaka is a Professor of International Law at the Faculty of Law, University of Copenhagen. He has published widely in the fields of the law of the sea and international environmental law. I had a profound admiration for Tanaka’s writings, particularly in law of the sea subjects. He has a compelling method in deliberating issues comprehensively but still convenient to digest, especially for academicians, practitioners, and law students (postgraduate). Settlement of International Dispute is considered as a foundation of the establishment and the development of International Law. Accordingly, there are plenty of books and writings had published addressing similar topic, however, Tanaka’s book is distinctive. Tanaka successfully gives the reader an exhaustive and extensive analysis of the procedures for dispute settlement both in traditional means and newly development. In addition, He complemented figures and tables to give the reader a comprehensive understanding.

scholarly journals Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)

2018 ◽  
Vol 112 (2) ◽  
pp. 288-294 ◽  
Author(s):  
Jason Rudall
Keyword(s):  
Costa Rica ◽  
International Law ◽  
Environmental Damage ◽  
International Court Of Justice ◽  
International Courts ◽  
Goods And Services ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
First Time

Should trees have standing? The decision of the International Court of Justice (ICJ or Court) in its Question of Compensation (Costa Rica v. Nicaragua) case of February 2, 2018 provides a pioneering example of damage to the environment being litigated before an international tribunal. The judgment is the first time that the ICJ has adjudicated compensation for environmental damage, and it is only the third time the ICJ has awarded compensation at all. Nevertheless, the ICJ boldly asserted in this case that “damage to the environment, and the consequent impairment or loss of the ability of the environment to provide goods and services, is compensable under international law” (para. 42). That said, the reasoning employed by the Court leaves much to be desired. Given the increasing number of cases involving the environment, it is unfortunate that international courts and tribunals will garner only limited guidance from the methodology adopted by the ICJ in valuing environmental damage.

Sources of International Environmental Law

2018 ◽  
Author(s):  
Catherine Redgwell
Keyword(s):  
International Law ◽  
Environmental Law ◽  
International Environmental Law ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Innovative Methods ◽  
Court Of Justice ◽  
International Court ◽  
Starting Point ◽  
Environmental Norms

This chapter considers the applicability to environmental problems of the traditional sources of international law, using as the starting point the formal sources enumerated in Article 38 of the International Court of Justice (ICJ) Statute. It notes that leading treatises on international environmental law (IEL) and the account of the formal sources of IEL will likely start along the traditional positivist lines of Article 38. This chapter adheres to this practice to an extent—by discussing treaties, customary international law, and general principles. However, the discussion also moves on to, amongst other things, innovative methods of law creation, the dynamic evolution of environmental treaty texts, and the specific role played by soft law in the development and application of international environmental norms. The chapter concludes that, nonetheless, as a branch of general international law, the sources of international environmental law are the same.

scholarly journals Trans-frontier Environmental Damage in International Jurisprudence

2016 ◽  
Vol 9 (5) ◽  
pp. 102
Author(s):  
Sayyed Ghasem Zamani ◽  
Mohammadreza Alipour
Keyword(s):  
Environmental Law ◽  
Environmental Issues ◽  
Legal Order ◽  
Environmental Damage ◽  
International Environmental Law ◽  
International Courts ◽  
Vague Set ◽  
Significant Damage ◽  
International Legal Order ◽  
Rules And Principles

The enhancement of environmental awareness in both domestic and international level has been accompanied by the growing number of internal authorities and international bodies within which environmentally related disputes can be addressed. Over the years, environmental issues have been discussed by different international judicial courts and arbitration tribunals. Their contribution to enhance the legitimacy of international concerns to the protection of environment is a significant one. They have acted to clarify the international environmental rules within the international legal order and have augmented the ability of domestic legal systems to deal with associated problems more effectively. The international judicial bodies as well as arbitration tribunals have been faced with a rather vague set of rules and principles that made it an enormous task to apply the law to the particular facts of a case in question. Issues relating to the existence, contents and meaning of the certain related concepts took considerable spaces in the contributions of international courts and tribunals in<em> </em>the course of developing international environmental law, particularly the concepts of environmental damage and the liable party to make reparation.<em> </em>International judicial bodies mostly relied on procedural obligations of states and arbitration tribunals on damage itself and the necessity to compensate them. While the damage is mostly confined to significant damage of value-use aspects of the environment, and liable party is focused on the damage causing activities of the operator, the reparation modes are unsteady between only financial compensation and, if possible,<em> </em>near to<em> </em>restitution.

Certain Activities Carried Out by Nicaragua in the Border Area

2020 ◽  
Vol 187 ◽  
pp. 1-543
Keyword(s):  
Costa Rica ◽  
Environmental Law ◽  
Environmental Damage ◽  
International Environmental Law ◽  
Main Claim ◽  
International Court Of Justice ◽  
Territorial Integrity ◽  
Court Of Justice ◽  
International Court ◽  
San Juan River

International Court of Justice — Provisional measures — Requirements for the indication of provisional measures — Prima facie jurisdiction — Jurisdiction under American Treaty on Pacific Settlement, 1948 (Pact of Bogotá) — Plausibility of rights claimed — Whether rights claimed by Costa Rica plausible — Irreparable damage — Whether rights claimed by Costa Rica at imminent risk of irreparable prejudiceInternational Court of Justice — Procedure — Control of proceedings — Joinder of proceedings — Counter-claims — Admissibility of counter-claims — Whether counter-claims of Nicaragua having direct connection with main claim of Costa Rica — Conditions for establishing whether a counter-claim connected in fact and in law with main claimInternational Court of Justice — Evidence — Weight to be given — Expert evidence — Burden and standard of proof — CompensationTerritory — Sovereignty — Disputed territory — Costa Rica’s claim that Nicaragua carried out activities in territory under sovereignty of Costa Rica — Extent of disputed territory — Treaty of Limits, 1858 — Cleveland Award, 1888 — Alexander Awards, 1897 — Whether “first channel met” was the caño dredged by Nicaragua starting in 2010 — Whether disputed territory falling under sovereignty of NicaraguaEnvironment — Procedural obligations — Substantive obligations — Nicaragua’s alleged breaches of international environmental law — Whether Nicaragua having to provide Costa Rica with environmental impact assessment relating to activities in disputed territory — Whether Nicaragua breaching its obligations to notify and consult with Costa Rica — Whether Nicaragua breaching its obligation not to cause transboundary harm — Costa Rica’s alleged breaches of international environmental law — Whether Costa Rica breaching its obligation to provide Nicaragua with environmental impact assessment relating to construction of Road 1856 along San Juan River — Whether Costa Rica breaching its obligations to notify and consult with Nicaragua — Whether Costa Rica breaching its obligations under Convention on Biological Diversity, 1992 — Whether Costa Rica breaching its obligation not to cause 2transboundary harm — Whether Costa Rica breaching Nicaragua’s territorial integrityRivers — Right of navigation — Whether Nicaragua breaching Costa Rica’s right of navigation on San Juan River under Treaty of Limits, 1858 — PollutionState responsibility — Breach of provisional measures — Whether evidence showing that Nicaragua breached provisional measures — Assessing compliance with provisional measures at merits stage — Costs — Whether Costa Rica to be awarded costs as a result of Nicaragua’s breach of provisional measures — Breach of territorial integrity — Presence of Nicaragua’s military camp in disputed territory — Declaration that territorial integrity had been breached — Reparation — Compensation to be determined by Parties through negotiation within a year — Whether Court to be requested to determine amount of compensation by either Party after one year had elapsedDamages — Environmental damage — Consequences of responsibility for environmental damage — Request by Costa Rica to determine amount of compensation — Obligation to make full reparation — Hierarchy of means of reparation — Punitive or exemplary damages — Three-step approach to awarding compensation — Establishment of unlawful act — Causal link between unlawful act and injury suffered — Quantification — Compensation for environmental damage — Compensation for expenses incurred by Costa Rica — Methodology to quantify amount due — Parties disagreeing on appropriate methodology — Expenses by Costa Rica as a result of unlawful activities in disputed territory — Expenses by Costa Rica as a result of Nicaragua’s breach of provisional measures — Expenses by Costa Rica for construction and monitoring of a dyke — Costa Rica’s claim for pre-judgment and post-judgment interest — Whether pre-judgment interest necessary to ensure full reparation — Date by which compensation to be paid by Nicaragua

Part IX International Environmental Law in National/Regional Courts, Ch.67 South America

2021 ◽  
Author(s):  
Tigre Maria Antonia
Keyword(s):  
South America ◽  
International Law ◽  
Environmental Protection ◽  
Environmental Law ◽  
National Level ◽  
Environmental Damage ◽  
International Environmental Law ◽  
Multilateral Environmental Agreements ◽  
National Courts ◽  
Limited Scale

This chapter explores international environmental law in the courts of South America. Courts in South America have applied international environmental law on a limited scale. Multilateral environmental agreements (MEAs) are usually cited in higher courts to reinforce environmental principles or general norms already been incorporated in national law. Whenever applicable, national law is preferred, reducing reliance on international law. Treaties are more likely to be used as an additional argument to advance theories with lower acceptance at the national level. For example, MEAs are often cited when decisions apply the precautionary principle and favour environmental protection in the absence of scientific certainty about environmental damage. More recently, international law has also been cited in pushing forward innovative theories without national legal support, such as the rights of nature. The recent decisions in Colombia have shifted the paradigm, as these directly use international law to justify environmental protection on a broader level. In light of the growth of climate cases filed in national courts, it is likely that international law is directly applied in other national courts as well, as has happened in Colombia.

Law-making at the intersection of international environmental, humanitarian and criminal law: the issue of damage to the environment in international armed conflict

2010 ◽  
Vol 92 (879) ◽  
pp. 593-646 ◽  
Author(s):  
Julian Wyatt
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Armed Conflict ◽  
Environmental Law ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Environmental Damage ◽  
Humanitarian Law ◽  
International Environmental Law ◽  
The Relationship

AbstractThe relationship between international environmental law and international humanitarian law, like relationships between many other subsystems of contemporary international law, has not yet been articulated. The problem of environmental damage in international armed conflict lies at the intersection of these two branches and thus provides an ideal opportunity to investigate this relationship. Rather than simply evaluating the applicable international law rules in their context, we break them into elements that we separately assess from both (international) environmental law and international humanitarian/international criminal law perspectives. By doing so, we identify how international law rules for cross-sectoral problems may appropriately combine the existing expertise and institutional strengths of simultaneously applicable branches of international law, and also discover how an evaluation of the ultimate appropriateness of the cross-sectoral rules adopted may be substantially affected by the different frames of reference that are used by those working within the different fields.

Relationship Between International Environmental Law and Other Branches of International Law

2008 ◽  
Author(s):  
Alan Boyle
Keyword(s):  
Human Rights ◽  
International Law ◽  
Dispute Settlement ◽  
Biological Diversity ◽  
Environmental Law ◽  
World Trade Organisation ◽  
Law Of The Sea ◽  
Convention On Biological Diversity ◽  
International Environmental Law ◽  
The Law

International environmental law is neither a separate nor a self-contained system or sub-system of law. Rather, it is simply part of international law as a whole. It is true that many ‘environmental’ treaties and other legal instruments have been negotiated over the past half-century, and that the study of international environmental law is to a significant extent a study of these treaties and other instruments. Nevertheless, unlike World Trade Organisation (WTO) law, the law of the sea, or human rights law, international environmental law has never been systematically codified into a single treaty or group of treaties. There is neither a dedicated international environmental organisation nor an international dispute settlement process with the ability to give it coherence. This article provides the link between international environmental law and WTO law, the 1982 UN Convention on the Law of the Sea and the 1992 Convention on Biological Diversity, environment and human rights, and dispute settlement and applicable law.

scholarly journals International Courts’ Shadow Effects and the Aims of Judicialized International Cooperation

AJIL Unbound ◽  
2021 ◽  
Vol 115 ◽  
pp. 394-398
Author(s):  
Nicole De Silva
Keyword(s):  
International Law ◽  
International Cooperation ◽  
Dispute Settlement ◽  
Cost Benefit ◽  
Law Of The Sea ◽  
International Courts ◽  
International Court ◽  
International Dispute ◽  
Theoretical Mechanism ◽  
The Law

In “Judicialization of the Sea: Bargaining in the Shadow of UNCLOS,” Sara Mitchell and Andrew Owsiak make a valuable contribution to an expanding body of scholarship that considers whether and how international courts have out-of-court “shadow effects.” The authors argue that, in the UN Convention on the Law of the Sea (UNCLOS) regime, the threat of binding international dispute settlement (IDS)—which entails high costs for states—encourages rational potential litigants to settle out of court through other peaceful and less costly IDS mechanisms. In this essay, I challenge the narrow focus of Mitchell and Owsiak's analysis, considering the diverse aims and processes of judicialized international cooperation in two key ways. First, the authors’ focus on peaceful IDS as the sole outcome of interest overlooks other important cooperation goals driving judicialization and delegation to international courts. An emphasis on out-of-court IDS, even when achieved peacefully, can actually undermine other objectives for judicialized international cooperation, including the development of international law and greater compliance with international law. Second, Mitchell and Oswiak's theoretical mechanism assumes that an international court contributes to its out-of-court influence through its case law, but this discounts how international courts can engage in a range of out-of-court, non-adjudicative activities that can affect potential litigants’ cost-benefit analyses regarding judicialized versus non-judicialized IDS. Indicating its preference for increasing its “direct effects” through adjudicating disputes, the International Tribunal for the Law of the Sea (ITLOS) has developed capacity-building and training programs to encourage judicialized IDS under UNCLOS and states’ litigation at the ITLOS. Overall, I highlight how there is a broad range of actors and processes underpinning international courts’ out-of-court effects, and how these actors and processes can work towards multiple, at times conflicting, aims for judicialized international cooperation.

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