Introduction to international environmental law 2 (compliance and enforcement)
21 important questions on Introduction to international environmental law 2 (compliance and enforcement)
How do you usually have enforcement in int evir law?
• In general
– Report to Conference of the Parties (COP)
There is a reporting mechanisms in most treaties, they will have an obligation to report certain things to a committee to sort of check if they are in compliance of the treaty
– Bring a dispute before ICJ or other court/tribunal
Usually in treaties there is a provision which states which court has jurisdiction over a matter concerning the treaty, however when this is not the case jurisdiction is usually a choice of the states
What is a complaince committee?
climate change
What can a complaince committee do?
» Enforcement Branch (imposes sanctions)
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What is very rare in the kyoto enforcement?
in the Paris Agreement. Only the non-punitive facilitative role remains
What if there is no treaty, can there still be enforcement?
relevant treaty provisions (for example: no harm principle)
What are some of the problems that arise with the enforcement?
Problem: areas beyond national jurisdiction, such as the high seas, the
Antarctic, space. Can states be injured there? (see Whaling case and
Nuclear Test cases later)
How does the icj provide enforcement in envir. Law?
• Usually only when both states accept jurisdiction in specific case
• Interim measures of protection; imminent threat of irreparable damage (for
example: Pulp Mills case)
• Advisory opinions (exciting AO pending: Vanuatu climate change)
• Chamber for environmental matters (1993-2006), 0 cases...
What are some special enforcement bodies? (4)
Specific dispute settlement institutions
• International Tribunal on the Law of the Sea (ITLOS), deals with disputes arising out of
the UN Convention on the Law of the Sea (UNCLOS), in Hamburg, Germany (see
further session 10)
• World Trade Organization (WTO) Appellate body (& Dispute Settlement Body, ad hoc
panels on trade disputes)
• Ad hoc tribunals, instituted to deal with a specific conflict (example: Trail Smelter
tribunal of Canada and USA)
• Permanent Court of Arbitration, in The Hague, Netherlands (not a court, arbiters of
both states involved come up with a settlement, example: Iron Rhine case)
Which regional court in the eu can you use?
matters related to EU law. However, the EU and its member states
are often a party to international conventions, in which case a
conflict of courts may arise
When has the CJEU jurisdiction?
hen EU is a party: CJEU has jurisdiction
– CJEU explains provisions of Aarhus Convention in Slovak Bears
case, case C-240/09 (2011)
– CJEU has to be addressed by Member States in case of conflict. In
the MOX Plant Case, case 459/03 (2006), the Court condemned
Ireland for having addressed the ITLOS on a dispute with the UK
on radioactive contamination of the Irish Sea (based on the
current Art. 344 TFEU)
What are three regional hr courts?
• European Court of Human Rights (Strasbourg, France)
• Inter-American Court of Human Rights (San José, Costa Rica)
• African Court on Human and Peoples Rights (Arusha, Tanzania)
What options do individuals or ngo's have?
• No! Conflicts between states only (agreements between states!)
• Exception: human rights
• Many proposals for International Court for the Environment... never adopted
• Domestic courts... depends on domestic law
• Aarhus Convention on access to justice in environmental matters (see session 4)
Under which system is the most envir case law?
(“General Exceptions”). Disputes often on TBT Agreement (technical
barriers to trade)
Who dispute settlement body, is this easy? And name an exemple dolphin case?
restrictions. Art. XX GATT opportunities are hard to materialize.
Examples:
• 1991, 1994, 2011 tuna cases between Mexico and the USA.
Mexico objected against various measures imposed in the
US in order to prevent the sale of tuna caught under
conditions that lead to the death of dolphins (dolphins caught
up in fishing nets)
– Unilateral action is not allowed. A product ban is impossible. Even
voluntary ‘dolphin safe’ labelling was considered to have
impermissible extra-jurisdictional scope.
What is the turtle shrimp casE?
between Thailand and the USA. The USA had banned the
sale of shrimp that were caught using methods that might kill
sea turtles and required fishermen to use TED devices
(“turtle excluding devices”):
– No unilateral technology requirements can be imposed
– States involved have to negotiate agreements, taking into account
circumstances of each country, in this case especially the position of
subsistence (poor) fishermen (who cannot afford such technology)
What is the beef hormone case?
beef from the US treated with hormones, invoking the
precautionary principle
– The precautionary principle is not a principle of customary
international law and cannot be relied upon under WTO law
Who can enforce in int. Environment law?
What is the reality of enforcement in environmental law?
What is the background on the environmental chamber and why did it fail?
How do tribunals work?
How does the jurisdiction of the CJEU work exactly? Provision of aarhus convention.
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