User:Kaihsu/EnvA3

International environmental law.

Module A: General aspects of international environmental law I.

Chapter 3: Sources of international environmental law.

Classical sources of international law
Article 38 ICJ Statute: "1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. […] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto."

Binding norms
Pacta sunt servanda; but without contract, obligation erga omnes (partes) is harder to prove: North Sea Continental Shelf cases.

Articles 42 (invocation of responsibility by an injured state) and 48 (invocation of responsibility by a State other than an injured State) of the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts are examples of the role of the International Law Commission in codification and progressive development.

Treaties
New techniques developed for environmental treaties include non-compliance procedures and framework treaties &rarr; protocols and annexes, allowing opt-ins and simplified amendment/adjustment procedures; e.g.
 * 1979 Geneva Convention on Long-Range Transboundary Air Pollution
 * 1985 Vienna Convention for the Protection of the Ozone Layer &rarr; 1987 Montreal Protocol on Substances that Deplete the Ozone Layer
 * 1992 United Nations Framework Convention on Climate Change &rarr; Kyoto Protocol, Paris Agreement.
 * 2001 Stockholm Convention on Persistent Organic Pollutants with its annexes.

Another techniques is a universal convention &rarr; regional agreements, e.g. Article IV 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals

Conferences/Meetings of the Parties may amend or add protocols and annexes, may pass binding decisions and resolutions, may establish compliance mechanisms, etc.: e.g. Article 23 Convention on Biological Diversity.

ICJ acknowledged “evolutionary interpretation”: Namibia, Aegean Sea. When interpreting a treaty, “new [environmental] norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past”: 1997 Gabčíkovo–Nagymaros ICJ, para 140. 1969 Vienna Convention on the Law of Treaties provides for further rules of interpretation.

Customary norms
These arise when there is a practice among states to act in a particular way, or when states act because they believe that they are obliged to do so by law (opinio juris); e.g. Trail Smelter confirmed in Corfu Channel &rarr; Stockholm Principle 21 &rarr; Rio Principle 2 sic utere tuo ut alienum non laedas (use your own property in such a manner as not to injure that of another). “The existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment”: 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons ICJ.

Rules of customary law &rarr; codifying conventions &rarr; treaty rules for the parties; e.g. some rules of international customary law were codified in 1969 Vienna Convention on the Law of Treaties. But also the other way: treaty rules &rarr; rules of customary law, e.g. equitable utilisation of shared watercourses. Beyerlin and Marauhn at 19.2 lists these possible sources of customary international law:
 * 1) Exceptionally, from former ‘comity’ or ‘courtoisie’
 * 2) Uniform treaty practice
 * 3) Emerging from soft law
 * 4) Accruing from general principles of law

The provision concerned should “be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law”: North Sea Continental Shelf cases page 42 at para 72. Customary norms require behaviour opinio juris sive necessitatis and consistent state practice, “even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected” (page 42 at para 73): North Sea Continental Shelf cases; see more widely pages 41 to 43 at paras 70 to 74. Individual ‘persistent objectors’ cannot prevent the establishment of a particular customary rule; they can only avoid being bound by it. See also Nicaragua ICJ.

Ius cogens (peremptory norms)
These are norms from which no derogation is permitted; treaties are void if they conflict with ius cogens (Article 53 Vienna Convention) even if this emerges later (Article 64). E.g. prohibitions of the use of force, of slavery, of piracy, of genocide. See 1996 Nuclear Weapons Advisory Opinion ICJ.

Erga omnes (partes)
These are obligations of a State towards the international community as a whole; e.g. “outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination”: Barcelona Traction (Belgium/Spain) (2nd Phase), ICJ Reports 1970, page 3 at paras 33, 34.

The obligations to preserve the environment of the high seas and in the area may be erga omnes or erga omnes partes; International Seabed Authority on behalf of humankind – as well as other entities/users/States – might be able to claim compensation: Advisory opinion of Deep Seabed Chamber ITLOS on Responsibility and Liability for International Seabed Mining (ITLOS Case No. 17).

General principles of law
Examples:
 * Good faith: 1974 Nuclear Test ICJ, Gabčíkovo-Nagymaros ICJ referring to Article 26 of the 1969 Vienna Convention on the Law of Treaties.
 * Equity: 1997 UN Watercourses Convention.
 * Respect for mutual interests: Stockholm Principle 21 → Rio Principle 2.

Judicial decisions
Article 38(1)(d) ICJ Statute does not provide for stare decisis. Article 59: “The decision of the Court has no binding force except between the parties and in respect of that particular case.”

Examples of important sources:
 * Arbitration cases: Trail Smelter, Pacific Fur Seal 1893; more recently 2016 South China Sea (Philippines/China) Permanent Court of Arbitration, especially VII.D protection of the marine environment, paras 815–993.
 * ICJ cases: Corfu Channel, 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1997 Gabčíkovo–Nagymaros, 2010 Pulp Mills (Argentina/Uruguay)
 * WTO Dispute Settlement Body.

Soft law
Soft law in e.g. declarations may not be legally binding, but they state principles, standards, or rules that are aspirational (potentially normative) and steer state conduct. They may later become customary international law. E.g. sustainable development, intergenerational equity, precautionary principle.

Taxonomy (Beyerlin and Marauhn, 20.2 to 20.4):
 * Legally non-binding agreement between States
 * political action programmes
 * political declarations on existing or emerging customary norms and principles
 * codes of conduct
 * accords on provisional treaty implementation &rarr; catalyst for treaty-making
 * Interinstitutional non-legal arrangements
 * Recommendations of international organizations

Article 197 UNCLOS (Cooperation on a global or regional basis): “States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.”

Resolutions of the UN General Assembly
Even if unanimous, they are not binding, but may state customary international law and provide evidence of state practice and opinio juris, e.g. 1982 World Charter for Nature. See also Nicaragua ICJ.