Q. Who was Hugo Grotius and what was his contribution to the development of international law?

A.  Hugo Grotius was born in Delft, Holland on April 10, 1583. He was one of the pioneering natural rights theorists of the late 16th and early17^th centuries. His writings based the foundation for modern international law. Grotius was first a major exponent of the philosophy of natural law and of social contract. Second, he was an Aristotelian whose deepest and most abiding belief was in the power of reason and the rationality of man. Third, Grotius was a pragmatic diplomat who, through the observation and practice of diplomacy in a singularly disturbed and savage period, was fully aware of the practices of states in peace and war -- and it was war that dominated both the life of the people and the thought of Grotius. But fourth, Grotius was a humanist in the spirit and tradition of his master, Erasmus of Rotterdam, a man who abhorred the brutality and lawlessness of war and violence, and whose principal purpose, therefore, was not only to civilize the conduct of war but also to place certain limitations upon its legality. He combined this last objective with his belief in reason and in natural order in the formulation of his famous theory of the bellum iustum ("the just war"). He based his system on the law of nature and proposed the view that the already existing customs governing the relation between nations had the force of law and were binding unless contrary to natural justice.  He is known for the  establishment of the principles of international law, where  each nation state is independent and sovereign. No supra power or nation exists with the power to create law applicable to the entire world. States are the primary subjects of international law. Few international regimes allow the active participation of non-state actors in law-making. As a general rule of his principles, no State may be bound by any international obligation without its consent.  [Top]

Q. What is the significance for the development of international environmental law of the two world conferences held in Stockholm in 1972 and in Rio de Janeiro in 1992?

A. The history of international environmental law is organized around the two landmark conferences on environment and development issues: the 1972 UN Conference on the human Environment (also known as the Stockholm Conference and the 1992 UN Conference on Environment and Development (referred to as the Rio Conference). The Stockholm Conference emphasized the importance of integrating environment and development, of reducing or eliminating pollution and of controlling the use of renewable and non-renewable resources. The Stockholm Declaration placed the primary responsibility for environmental protection on national and local governments. Stockholm legitimized the environment as an area of international concern, highlighted the scientific and ecological reasons why international cooperation was necessary, and promoted the linkage between environment and development issue. Stockholm also spurred significant action at the national level. In part due to the Action Plan, many countries enacted environmental legislation and created environmental institutions either in anticipation of the conference or in response to it. Spurred on by the success of Stockholm, the remainder of the 1970’s saw a proliferation of international environmental treaties addressing mostly environmental issues like water pollution, ozone depletion, and air pollution. 

The Rio Conference emerged as a “global partnership” between North and South to achieve sustainable development. The basis of this partnership includes mutual acceptance between environmental protection and poverty alleviation, between obligations to provide financial assistance and technology transfers, and the need to slow population growth and curb consumption. These conferences took developing countries to a higher level in the international environmental affairs because the North realized that it needs the South’s cooperation to face the global environmental challenges. Both sides in order to further their own goals were willing to compromise on many issues and reach a conclusion that would benefit all of the parties involved. The Rio Declaration can be read in several ways. First, it is a political document reflecting the “grand bargain” between the North and the South. Second, it includes many emerging legal principles in the field of environmental law. By confirming that a consensus exists among states the Rio Declaration may significantly further the development of international environmental law, as well as the possibility of incorporating specific principles in subsequent treaties. 

These two conferences lead to a new beginning for furthering the development of international environmental law especially in areas of the treaty-making process. The creation of treaties and the involvement of the greater civil society are all evidence to the changes that are occurring in the sphere of international law. These two conferences marked a turning point in international law because they showed that the legal system can be successful if it incorporates more actors and allows them to actively participate in research, decision-making and implementation of policy. The treaties along with the emergence of international conferences became the frameworks of creating international understanding of problems.   [Top]

Q. In an international environmental treaty regime, what is the meaning of and what role is played by (a) COPs, (b) secretariats, and (c) subsidiary bodies?

A. Most environmental treaties create policymaking bureaucracy to help the parties fulfill treaty obligations. The institutions include CoPs, Secretariats, and subsidiary bodies.

(a) Conference of the Parties (CoPs) are the primary policy-making organs of most global environmental treaty regimes. The CoPs are formed every one or two years and conduct the major business of monitoring, revising, and enforcing the conventions. CoP acts as the supreme body of the Convention and it must keep under regular review the implementation of the Convention.

(b) Secretariats are responsible for the day-to-day operations of the convention. Among the more common functions are monitoring and reporting on treaty implementation, promoting scientific research relevant to the treaty's objectives, and contributing to the further development of the law. Also, virtually all secretariats serve as conduits for communications among the treaty parties. Their daily operations revolve around (1) Gathering, Analyzing and Distributing Information; (2) Maintaining Authoritative Convention records; (3) Supporting the Conference of the Party in preparing annual meetings of the parties; (4) Monitoring Compliance and Facilitating Implementation; (5) Coordinating with other treaty regime bodies. These are just some of the common functions of the Secretariat.

(c) Subsidiary Bodies and Committees are created to deal with specific (and usually technical) issues arising under the treaty. A subsidiary body must (a) Provide scientific and technical assessments of the effects of types of measures taken in accordance with the provisions of the Convention; (b) Identify innovative, and state-of-the-art technologies and know the ways of transferring such technologies in means of promoting development; (c) Respond to scientific, technical, technological and methodological questions that eh Conference of the Parties and its subsidiary bodies may put to the body.   [Top]

Q.  What are the major steps in the process by which an international treaty is developed, brought into existence, and modified to take account of new data?

A. States are predominant actors in the treaty making process. The treaty-making process has four steps that allow States to come to any international agreement. The first step is Identification of Needs and Goals, meaning someone must conduct research and come up with data that will demonstrate that a particular substances harms the environment. This step involves scientists who spent time with equipment stimulating results of chemical and physical reactions. The task of any designated group is to comply enough data to convince the policy makers of a global problem.  The second step is Negotiations where States through a simple exchange of diplomatic correspondence negotiate on a particular issue.  But, more often negotiations proceed through the process of informal exchange which can continue for years before a consensus is reached. States and international organizations like the United Nations General Assembly (UNGA) organize preparatory committees that are made up of experts, scientists and other private groups. During these informal discussions, information is spread and the positions of the interested states are established. The third step is Adoption and Authentication where the States accept the principle of the treaty, but it doesn't make the states bound to the treaty just yet. The treaty to become in any way a binding agreement requires a signature of the representative of the State. The final state in treaty-making process is Ratification where the State declares to the international community that it considers itself bound by a treaty. In addition to the four basic steps the treaty must be implemented, monitored for compliance and if necessary modified or amended.    [Top]

Q. What evidence is there that the American Society for International Law takes an active and formative influence in the development of international environmental law?

A. America took a leading role after the discovery of CFCs in 1974. The U.S. scientific community launched a major research campaign, involving National Academy of Science, NASA, UNEP and WMO in a conscious effort to convince governments around the world that human activities represent a substantial threat to the ozone layer with uncertainties till remaining diplomats began to debate the need for imposing international controls on CFCs. IN 1985 an unexpected revelation of ozone hole over Antarctica turned the attention of policy makers. In June 1986, EPA sponsored with UNEP a weeklong international conference on risks to human health and the environment from ozone loss and climate change. U.S takes drastic measures by passing the U.S. takes drastic measures by passing the U.S. Clean Air Act whose critical significance in this legislation was the concept that was eventually to shape the U.S. position on international controls, the entire negotiating process, and the final treaty itself-namely, that a governing authority does not require conclusive evidence, but all that is required is a standard of reasonable expectations.

In the United States, formal hearings held soon after publication of the first 0zone-depletion theory led to passage of ozone protection legislation in 1977. Congress continues to follow the issue closely in the ensuing years. After the resumption of diplomatic negotiations in December 1986, both House and Senate endorsed the U.S. position on strong new international controls. With American efforts to pose controls on CFCs the European Community (EC) throughout the negotiations leading up to Montreal seemed to many observers generally more concerned about European political and economic union than about the urgency of protecting the ozone layer. Even though the U.S. diplomatic efforts and the international negotiations were proceeding, antiregulatory forces in the Regan administration mounted a rearguard action to undermine the U.S. position on protecting the ozone layer. However, the U.S. already gained momentum overseas and support at home form influential voices in Congress, to pursue the campaign. The Department of State designed and managed a multifaceted strategy to gain acceptance of the U.S. position by as many countries as possible. Over 60 U.S. embassies were regularly provided with talking points explaining the rationale behind the U.S. proposals, as well as with scientific and policy updates.

Embassies were instructed to engage their host governments in a continuous dialogue to inform, influence, and demonstrate flexibility. A constant stream of cables between Washington and the embassies enabled the State Department to keep abreast of subtle changes in foreign attitudes and to provide new information responsive to other governments’ concerns. All of the events takes up by U.S. government as well as its persuasion on other countries finally brought them all to Montreal on September 8, 1987. The number of participating governments had now grown to over 60, of which more than half were developing countries.    [Top]

Q. What is the role of the International Court of Justice in resolving disputes between nations over environmental and resource issues, and what major decisions by the Court can you cite and summarize.

A. The International Court of Justice is the principal organ of the United Nations. Its seat is at the Peace Palace in the Hague, Netherlands. The Court has a dual role: to settle in accordance with international law the legal disputes submitted to it by States, and to give advisory opinions on legal questions referred to it by authorized international organs and agencies. The Court decides in accordance with international treaties and conventions in force, international custom, the general principles of law, and as subsidiary means, judicial decisions and the teachings of the most qualified publicists. The Court is composed of 15 judges elected to nine-year terms of office by the United Nations General Assembly and Security Council sitting independently of each other. It may not include more than one judge of any nationality. Elections are held every three years for one-third of the seats, and retiring judges may be re-elected. The Members of the Court do not represent their governments but are independent magistrates. The judges must possess the qualifications required in their respective countries for appointment to the highest judicial offices, or be jurists of recognized competence in international law. The composition of the Court has also to reflect the main forms of civilization and the principal legal systems of the world. When the Court does not include a judge possessing the nationality of a State party to a case, that State may appoint a person to sit as a judge ad hoc for the purpose of the case.  The Court decides in accordance with international treaties and conventions in force, international custom, the general principles of law and, as subsidiary means, judicial decisions and the teachings of the most highly qualified publicists. Some of the cases regarding the environment are listed below:

FISHERIES CASE: Judgment of 18 December 1951 The Fisheries Case was brought before the Court by the United Kingdom of Great Britain and Northern Ireland against Norway. By a Decree of July 12th, 1935, the Norwegian Government had, in the northern part of the country (north of the Arctic Circle) delimited the zone in which the fisheries were reserved to its own nationals. The United Kingdom asked the Court to state whether this delimitation was or was not contrary to international law. In its Judgment the Court found that neither the method employed for the delimitation by the Decree, nor the lines themselves fixed by the said Decree, are contrary to international law; the first finding is adopted by ten votes to two, and the second by eight votes to four. The judgment concludes that the method employed by the Decree of 1935 is not contrary to international law; and that the base-lines fixed by the Decree are not contrary to international law either.

NORTH SEA CONTINENTAL SHELF CASES: Judgment of 20 February 1969 The dispute, which was submitted to the Court on 20 February 1967, related to the delimitation of the continental shelf between the Federal Republic of Germany and Denmark on the one hand, and between the Federal Republic of Germany and the Netherlands on the other. The Court found that the boundary lines in question were to be drawn by agreement between the Parties and in accordance with equitable principles, and it indicated certain factors to be taken into consideration for that purpose. It was now for the Parties to negotiate on the basis of such principles, as they have agreed.

CASE CONCERNING MARITIME DELIMITATION IN THE AREA BETWEEN 
GREENLAND AND JAN MAYEN (DENMARK v. NORWAY): Judgment of 14 June 1993 In its Judgment on the case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen, the Court, by fourteen votes to one, fixed a delimitation line for both the continental shelf and the fishery zones of Denmark and of Norway in the area between Greenland and Jan Maye.

HE GABCIKOVO-NAGYMAROS (Slovakia v. Hungary): The construction of the Gabcikovo and Nagymaros dams on the Danube River sparked one of the most important trans-boundary environmental disputes in Europe, and the case presented the International Court of Justice with an opportunity to issue a broader decision on international environmental law and international water law. In the Judgment, the Court has concluded that both Parties committed internationally wrongful acts, and it has noted that those acts gave rise to the damage sustained by the Parties; consequently, Hungary and Slovakia are both under an obligation to pay compensation and are both entitled to obtain compensation. The Court observes, however, that given the fact, that there have been intersecting wrongs by both Parties, the issue of compensation could satisfactorily be resolved in the framework of an overall settlement if each of the Parties were to renounce or cancel all financial claims and counter-claims. At the same time, the Court wishes to point out that the settlement of accounts for the construction of the works is different from the issue of compensation, and must be resolved in accordance with the 1977 Treaty and related instruments. If Hungary is to share in the operation and benefits of the Cunovo complex, it must pay a proportionate share of the building and running costs.

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