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Remarks by Ronald J. Bettauer

Published online by Cambridge University Press:  28 February 2017

Ronald J. Bettauer*
Affiliation:
George Washington University Law School; U.S. Department of State

Abstract

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Type
International Environmental Law-Making and the International Court of Justice
Copyright
Copyright © American Society of International Law 2011

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References

1 59 Stat. 1031, Ts 993, 3 Bevans 1153 (1945).

2 Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment of Apr. 20, 2010, available at http://www.icj-cij.org/docket/files/135/15877.pdf [hereinafter Pulp Mills case].

3 Statute of the River Uruguay, Uru.-Arg., Feb. 26, 1975, 1982 U.N.T.S. 339 (entered into force Sept. 18, 1976) [hereinafter 1975 Statute].

4 Pulp Mills case, para. 101.

5 Id, para. 204.

6 Bilder, Richard, The Settlement of Disputes in the Field of the International Law of the Environment, 144 Recueil Des Cours 139, 168 (1975-1)Google Scholar (citing UN document Legislative Texts and Treaty Provisions Concerning Utilization of International Rivers for Other Purposes than Navigation, U.N. Doc. ST/LEG/SER.B/2, U.N. Sales No. 63 V.4 (1963)).

7 Principles 3 and 4, Unep Doc. LJNEP.IG.12/2. See 17 I.L.M 1091, 1097 (1978). See also 1966 Helsinki Rules on the Uses of Waters of International Rivers, a codification effort undertaken by the International Law Association. Bilder, supra note 6, at 169.

8 U.N. Doc. A/RES/34/186 (1979) (adopted without vote).

9 For citations to scholars who take the position that environmental impact assessments had become a requirement under customary international law, see Preiss, Erika L., The International Obligation to Conduct an Environmental Impact Assessment: The ICJ Case Concerning the Gabcikovo-Nagymaros Project, 7 N.Y.U. Envtl. L.J. 307, 308 n.6, 313-23 (1999)Google Scholar.

10 1975 Statute, art. 60.

11 Application of March 31, 2008 (Ecuador v. Colom.), available at http://www.icj-cij.org/docket/files/138/14474.pdf.

12 Application of November 18, 2010, available at http://www.icj-cij.org/docket/files/150/16279.pdf.

13 Certain Activities Carried Out by Nicaragua in the Border Areas (Costa Rica v. Nicar.), Order of March 8, 2011, available at http://www.ICJ-cij.org/docket/files/150/16324.pdf.

14 Judgment of Sept. 25, 1997, available at http://www.icj-cij.org/docket/files/92/7375.pdf.

15 Judgment of July 8, 1996, available at http://www.icj-cij.org/docket/files/95/7495.pdf.

16 Bilder was somewhat prescient in his statement in his 1975 Hague Academy course: “In my opinion, it is unlikely that the International Court or other international judicial agency will, in the near future, play an important role in environmental dispute management.” Bilder, supra note 6, at 228.

17 See Alford, Neill H. Jr., Fact Finding by the World Court, 4 Vill. L. Rev. 37 (1959)Google Scholar (noting reasons for the Court’s reluctance to engage in fact-finding and discussing the difficulties the Court encounters in fact-finding). For a discussion of the Court’s difficulties dealing with evidence, see Highet, Keith, Evidence, the Court, and the Nicaragua Case, 81 Am. J. Int’l L. 1 (1987)CrossRefGoogle Scholar. For a discussion of the difficulties encountered by the criminal law context, see Gattini, Andrea, Evidentiary Issues in the ICJ’s Genocide Judgment, 5 J. Int’l Crim. Just. 889 (2007)Google Scholar (concluding at 903: “... the Court is simply not well-equipped to gather all the information that would be necessary to satisfy a standard of evidence analogous to that used in criminal cases.”) See also Shaw, Malcolm N., The International Court of Justice: A Practical Perspective, 46 Int’l & Comp. L.Q. 831, 857-59 (1997)CrossRefGoogle Scholar.

18 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Dissenting Opinion of Judge Schwebel, para. 151 (1986), available at http://www.icj-cij.org/docket/files/70/6523.pdf. For additional comments, see id., paras. 132-34. See also Stephen M. Schwebel, Justice in International Law 134-39 (1994) (discussing the Nicaragua case in the chapter Three Cases of Fact-Finding by the International Court of Justice, originally published in Fact-Finding Before International Tribunals (Richard B. Lillich ed., 1991)).

19 Oil Platforms (Iran v. U.S.), Separate Opinion of Judge Buergenthal, paras. 33-46 (2003), available at http://www.icj-cij.org/docket/files/90/9729.pdf.

20 Oil Platforms (Iran v. U.S.), Separate Opinion of Judge Higgins, paras. 30-39 (2003), available at http://www.icj-cij.org/docket/files/90/9721.pdf.

21 For a discussion of additional issues, see Teitelbaum, Ruth, Recent Fact-Finding Developments at the International Court of Justice, 6 Law & Prac. Int’l Cts. & Tribunals 119 (2007-2008)Google Scholar.

22 Biermann, Frank, Siebenhüner, Bernd & Schreyögg, Anna, Global Environmental Governance and International Organizations, in International Organizations in Global Environmental Governance 2 (Biermann, Frank, Siebenhüner, Bernd & Schreyögg, Anna eds., 2009)Google Scholar.

23 Dorn, Melissa, Summary of the Conference on Global Environmental Governance, 19 Geo. Int’l Envtl. L. Rev. 303 (2007)Google Scholar.

24 Hierlmeier, Jodie, UNEP: Retrospect and Prospect—Options for Reforming the Global Environmental Gover nance Regime, 14 Geo. Int.’l Envtl. L. Rev. 767, 769 (2002)Google Scholar. Hierlmeier states:

The U.N. has recently characterized the structure of global environmental governance as encompassing four layers. The top layer defines the realm of governance or the international decision-making process. The second layer consists of the institutional architecture at which policy decisions are taken. Actual implementation at the international level takes place in the third layer, which is defined as the management or operationalization of polices and the fourth layer involves the coordination of these decisions at the national level. See Open-Ended Intergovernmental Group of Ministers or Their Representatives on International Environmental Governance: Improving International Environmental Governance Among Multilateral Environmental Agreements: Negotiable Terms for Further Discussion, U.N. Environment Programme, 2nd mtg., at 3, U.N. Doc. UnepÆGM/2/4 (2001). Id. at 769 n.3.

25 Bodansky, Daniel M., The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?, 93 Am. J. Int’l L. 596, 610, 623 (1999)CrossRefGoogle Scholar.

27 Koskenniemi, Martti, Peaceful Settlement of Environmental Disputes, 60 Nordic J. Int’l L. 73, 82 (1991)CrossRefGoogle Scholar.

28 Compare Article 38(1) of the ICJ Statute (describing the Court’s function as “to decide in accordance with international law such dispúteselas are submitted to it”), supra note 2, with Article 1(1) of the International Law Commission’s Statute (describing the object of the Commission “the promotion of the progressive development of international law and its codification”) and Article 15 (defining progressive development as meaning “the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States”), A/RES/174(II) (Nov. 17, 1947). While it is incontestable that the Court “makes law” in the sense that it clarifies treaty provisions and existing general international law, the Court has no legislative law-making role in the sense that is implicated in a governance régime.

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