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FREQUENTLY ASKED QUESTIONS IN INTERNATIONAL ENVIRONMENTAL LAW (IEL)

QUESTIONS:

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



2. 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?

3. 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?

 

4. 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?

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

6. 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?

ANSWERS:

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

Hugo Grotius, or Huegeianus de Groot was born in Delft, Netherlands in April 10, 1583. He was an extremely talented child who wrote Latin elegies at the age of eight and became a student of the Leiden University at the age of eleven, where his father worked as curator.

At the age of 15, he accompanied Johan van Oldenbarnevelt on an embassy to Henry IV of France where he was received with great honor and decided to stay and study law at Orleans. When he went back to the Netherlands, he continued to write poetry and history about his native country.
 
After becoming the Dutch Republic's official Latin histographer, he became increasingly involved in politics. Spain and Portugal claimed monopoly of trade with the East Indies and in retaliation, a Dutch admiral seized the Portugese vessel "Santa Catarina". The Dutch East India Company asked Grotius in 1604 to write a juridical treatise, "De Jure Praedae" (On the Law of Prize and Booty), where he defended seizing of the vessel on the ground that Spain and Portugal deprived the Dutch of their trading rights. One chapter of De Jure Praedae defends free access to the ocean for all nations which appeared under the title "Mare Liberum".

It was De Jure Praedae and De Jure Belli ac Pacis that became the basis of international law. These works synthesized the ideas of older writers and thinkers. Grotius insisted that nations are bound by natural law, which was separate from God's law and based on the nature of man. [TOP]

Source:   Encyclopedia Britannica.  "Hugo Grotius."
         
       http://www.britannica.com/eb/article?eu=38983&tocid=0   28 May 2001.

2.  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?

Treaties have been an important source of international environmental law. Through the Stockholm Conference in 1972 and the Rio Summit in 1992 environmental issues have been put to the forefront of international concerns.
 
The Stockholm Conference was "motivated primarily by a concern over transboundary pollution, particularly in the form of acid rain, Sweden in 1968 suggested an international conference to address global environmental problems" (Hunter, et al, 281). Scientists were getting terrible results from their research about the environment and they decided that nations all over the world should put their resources together to take better care of the environment. The result of the Stockholm Conference

          Helped lay the groundwork for the subsequent acceptance of the concept of sustainable
          development. The Declaration 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 Declaration seemed to suggest a human right to a healthy
          environment (Hunter, et al, 286).

The last part of the statement above seems to be the most critical of all the other statements mentioned. It is true that everyone, young or old, rich or poor, has the right to a healthy environment. This statement, if applied by all nation States would stop all kinds of pollution and environmental degradation in the world.

The Rio Summit, dubbed as the "mother of all summits" was held in Rio de Janeiro, Brazil in 1992 (Hunter, et al, 295). One hundred and fifteen heads of state and government attended the Summit along with thousands and thousands of delegates from around the world. It was a reaffirmation of the accomplishments of the Stockholm Conference and "brainstorming" for new ways to help the environment without jeopardizing international relations.

The most controversial part of the Rio Conference was Agenda 21 which was a "comprehensive and detailed blueprint for the future implementation of sustainable development" (Hunter, et al, 311). Agenda 21 "evaluates the progress of different levels of government in achieving the integration of environment and development" (Hunter, et al, 313). It not only protects the environment through sustainable development but also creates increased cooperation among nation States.

Treaties, the Stockholm Conference and the Rio Summit have the best interest of every one involved at its core. Although it is difficult to really create an atmosphere of genuine concern and action towards saving the environment, the laws created by both the Stockholm Conference and Rio Summit will be worth nothing without increased cooperation between nation states and the putting together of all resources every nation has to actually cause significant change for the improvement of the environment. [TOP]
 
Source:   Hunter, David, James Salzman, and Durwood Zaelke. International Environmental Policy. 
                New York: 1998.

3.  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?

An international environmental treaty regime is a contract or written instrument binding two or more states under international law. The COPs, Secretariat, and Subsidiary bodies help in the development of the treaties.

COPs-or Conference of the Parties is the supreme body of a convention. Parties meet regularly, usually once a year, to review the conventions progress and/or create protocols or amendments to the convention.

Secretariat-the organ that administers and coordinates the activities of the United Nations and is headed by the Secretary General. A secretariat is usually staffed by international civil servants and is responsible for servicing the COP and ensuring its smooth operation. The secretariat makes arrangements for meetings, compiles and prepares reports, and coordinates with other relevant international bodies.

Subsidiary body-a committee that assists the Conference of the Parties. The UNFCCC has two permanent subsidiary bodies: the Subsidiary Body for Implementation and the Subsidiary body for Scientific and Technological Advice. SBI makes recommendations on policy and implementation issues to the COP and, if requested, other bodies. SBSTA serves as the link between the information and assessments provided by expert sources (such as the IPCC) on the one hand, and the policy-oriented needs of the COP on the other.  [TOP]

Sources:   Encyclopedia Britannica.  "Treaty." 
                  http://www.britannica.com/eb/article?eu=75177&tocid=0  28 May 2001.
                 Guide to the Climate Change Negotiation Process. 
                
http://www.unfccc.int/resource/process/  28 May 2001.

4.   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?

These are the steps in the treaty-making process:

Identification of needs and goals
Different agencies, NGOs, and the scientific community put problems in the forefront. This preparatory stage usually takes years to formulate as the different agencies and organization continue to gather information about the problem. 

Drafting
Different coalition put together alternative language of the treaties.

Negotiations
Nation states and the different IGOs, and NGOs conduct a series of meetings and conferences to negotiate the provisions of the treaty.

Adoption and authentication
Adoption of the treaty means that the participants agree to the provisions of the treaty and authentication is making sure that the documents being signed by the representatives of sovereign states is the actual text that they agreed to.

Ratification
Ratification is the approval of each sovereign state to the provisions of the treaty. In most countries, like the United States and the Philippines, the treaty has to be agreed to and supported by the Senate. 

Limited consent and reservations
A State may be bound to only a portion of the treaty if it does not go against the goal of the treaty and if other States agree to limited consent. When limited consent is not allowed, a State may declare its reservation or objection to a part of the treaty, again, as long as it does not conflict with the treaty's goals. 

Entry into force
Parties of the treaty are not bound to it unless the treaty enters into force. The treaty's entry into force is determined by the State's ratification of the treaty. Sometimes a treaty will be entered into force after a certain number of States have ratified it. Once ratified, the treaty comes into effect between the ratifying states. Sanctions are usually placed on nation states that do not
follow the treaty.

The treaties can be amended upon the acquisition and release of new information about the treaty issue. These amendments, often called protocols, are agreed upon the parties involved in the treaty. [TOP]

Source:   Wandesforde-Smith, Geoffrey. "Treaty making process." University of California, Davis. 9 Apr.
                2001.

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

The American Society of International Law stemmed for the 19th century American peace movement. Within the peace movement were lawyers who thought that a permanent arbitral system was needed, with arbitrators who would apply codified rules of international law as a substitute for the use of force to settle international disputes, much as judges in domestic court systems apply rules of domestic law as an alternative to violent settlement of disputes between individuals (www.asil.org)

The end of World War II and the creation of the United Nations gave the Society a chance to influence the development of international law. The Society was particularly interested in the judicial arm of the United Nations, the International Court of Justice. The American Society of International Law believed in institutional neutrality but adopted a resolution that strongly favors the acceptance of ICJ's compulsory jurisdiction. [TOP]

The Society is often consulted regarding issues in international law especially for the economic and social council.

Source:   Kirgis, Frederick.  History of the American Society of International Law The First Ninety years.
               
http://www.asil.org/history.htm  28 May 2001.

6.  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?

The International Court of Justice is the principal judicial organ of the United Nations. Its headquarters is located at the Hague, Netherlands. The ICJ replaced the Permanent Court of International Justice in 1946, which operates under a Statute that is an integral part of the Charter of the United Nations.

The role of the court is: 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 duly authorized international organs and agencies.

The procedure followed by the ICJ is based on its Statutes. The proceedings include a written phase where parties exchange pleadings, and an oral phase which consist of public hearings where the Court is addressed. Deliberation is made in front of a camera and the judgement is final and without appeal. If the nation involved failes to comply with the Court's decision, the other nation may choose to seek help from the Security Council of the United Nations.

An example of the cases filed at the International Court of Justice is the dispute between Spain and Canada over fisheries jurisdiction and the crime of genocide between Bosnia and Herzegovina versus Yugoslavia.

On 28 March 1995, Spain filed in the Registry of the Court an Application instituting proceedings against Canada with respect to a dispute relating to the Canadian Coastal Fisheries Protection Act, as amended on 12 May 1994, to the implementing regulations of that Act, and to certain measures taken on the basis of that legislation, more particularly the boarding on the high seas, on 9 March 1995, of a fishing boat, the Estai, sailing under the Spanish flag. Spain indicated, inter alia, that by the amended Act an attempt was made to impose on all persons on board foreign ships a broad prohibition on fishing in the Regulatory Area of the North-West Atlantic Fisheries Organization (NAFO), that is, on the high seas, outside Canada's exclusive economic zone, while expressly permitting the use of force against foreign fishing boats in the zones that that Act terms the "high seas". Spain added that the implementating regulation of 3 March 1995 "expressly permit[s] such conduct as regards Spanish and Portuguese ships on the high seas". The Application of Spain alleged the violation of various principles and norms of international law and stated that there was a dispute between Spain and Canada which, going beyond the framework of fishing, seriously affected the very principle of the freedom of the high seas and, moreover, implied a very serious infringement of the sovereign rights of Spain. As a basis of the Court's jurisdiction, the Application referred to the declarations of Spain and of Canada made in accordance with Article 36, paragraph 2, of the Statute of the Court. As Canada contested the jurisdiction of the Court, on the basis of its aforementioned declaration, it was decided that the written pleadings should focus initially upon that question of jurisdiction. A Memorial of the applicant and a Counter-Memorial of the respondent were filed in that respect. By an Order dated 8 May 1996, the Court decided not to authorize the presentation of a Reply of the applicant and a Rejoinder of the respondent. [TOP]

Source:   A guide to the History, Composition, Jurisdiction, Procedure, and Decisions of the Court.
                "Foreword."
               
http://www.icj-cij.org/icjwww/igeneralinformation/ibbook/Bbookframepage.htm  28 May
                2001.  
                Case Summaries.  "Fisheries Jurisdiction (Spain vs. Canada)." 
                http://www.icj-cij.org/icjwww/igeneralinformation/ibbook/Bbookframepage.htm  28 May
                2001.

 

Last updated
August 16, 2001
Copyright Geoffrey Wandesforde-Smith, 2000, 2001. All federal and state copyrights reserved for all original material presented in this course through any medium, including lecture or print. Graphic design by  Maureen Coulson, Almira Sugatan, and Geoffrey Wandesforde-Smith, from an original design by Eric Chua, Jared Menke, and Geoffrey Wandesforde-Smith. Web development also assisted in part by a grant to UC Davis from the Mellon Foundation.