LLM Group 6 Environment and Legal Order Environment and International Legal Order 2016 Question Paper with Solutions

The founding case is the Trail Smelter arbitration between the United States and Canada, awards of 1938 and 1941. A lead and zinc smelter at Trail in British Columbia sent sulphur dioxide down the Columbia valley, damaging crops, pasture and timber in Washington State. The Tribunal awarded damages for the period 1932 to 1937 and held that no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another when the case is of serious consequence and the injury is established by clear and convincing evidence. It then prescribed a permanent emission regime with instrumental monitoring and reporting, which is the first environmental regulatory order in international adjudication.

Corfu Channel (United Kingdom v. Albania), ICJ Reports 1949 page 4, generalised the principle into every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.

Type two: shared freshwater, allocation and works

Where a river or aquifer crosses a frontier, each State's use reduces the other's. The law is equitable and reasonable utilisation together with the duty not to cause significant harm, now in Articles 5, 6 and 7 of the Convention on the Law of the Non-Navigational Uses of International Watercourses of 21 May 1997.

The fullest example is the South China Sea Arbitration (Philippines v. China), Permanent Court of Arbitration award of 12 July 2016. The Philippines complained that Chinese flagged vessels had harvested giant clams, sea turtles and corals with official knowledge and protection, and that island building on seven reefs had destroyed coral ecosystems. The Tribunal held China in breach of Articles 192 and 194(5), holding that a State must exercise due diligence to prevent its nationals from harming the marine environment and that those duties apply irrespective of any dispute about sovereignty over the features. China did not appear and rejected the award, which is itself instructive about this type.

The precautionary variant is the Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), provisional measures order of 27 August 1999, restraining an experimental fishing programme and requiring the parties to act with prudence and caution despite inconclusive science.

Type four: environmental measures challenged as trade barriers

Here the claimant is the polluter's home State and the defendant is the regulator. The forum is the World Trade Organization and the law is Article XX of the General Agreement on Tariffs and Trade.

Metalclad Corporation v. United Mexican States, ICSID Case No. ARB(AF)/97/1, award of 30 August 2000, held that a municipality's refusal of a construction permit for a hazardous waste landfill and a later ecological decree amounted to indirect expropriation and a breach of fair and equitable treatment. The counterweight is Methanex Corporation v. United States of America, UNCITRAL final award of 3 August 2005, holding that a non-discriminatory regulation for a public purpose, adopted with due process, is not expropriatory unless specific commitments had been given, and Philip Morris Brands v. Uruguay, ICSID Case No. ARB/10/7, award of 8 July 2016, applying the police powers doctrine to public health measures.

Type seven: environmental damage in armed conflict

Settled not by a court but by the Security Council. Paragraph 16 of Resolution 687 (1991) made Iraq liable for direct loss and damage including environmental damage and the depletion of natural resources resulting from its invasion of Kuwait, and the United Nations Compensation Commission's environmental panel recommended awards of about 5.26 billion United States dollars in reports concluding on 30 June 2005. The judicial counterpart is Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ Reports 2005 page 168, and the reparations judgment of 9 February 2022 awarding 325 million dollars.

Type eight: human rights claims founded on environmental harm

Brought by individuals against their own State before a regional court. Lopez Ostra v. Spain, judgment of 9 December 1994, found a violation of Article 8 from fumes and noise from a waste treatment plant. Oneryildiz v. Turkey, Grand Chamber judgment of 30 November 2004, found a violation of Article 2 after a methane explosion at a rubbish tip killed thirty nine people. Social and Economic Rights Action Centre v. Nigeria, Communication 155/96, decided 27 October 2001, found violations of Articles 16 and 24 of the African Charter in the Niger delta.

Causation is where claims fail. Argentina proved the procedural breach in Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Reports 2010 page 14, and failed on the substantive one because the evidence of harm to water quality did not establish it. That pattern repeats: tribunals enforce process because process is provable, and decline to find substantive breach because ecological causation across years and confounding variables is not.

Conclusion. Environmental disputes settled internationally fall into nine recognisable types, and each is defined as much by its forum as by its subject: transboundary harm in arbitration, shared rivers before the Court and treaty commissions, marine and fisheries claims under Part XV, conservation measures before the trade system, regulation before investment tribunals, radiological risk before the Court and the Tribunal, war damage before a claims commission created by the Security Council, environmental harm before the regional human rights courts, and now climate obligations before all of them at once. Across every type, two constants hold: no forum has jurisdiction that a State has not accepted, and substantive breach is rarely proved while procedural breach usually is. That is why the most productive settlement mechanism in the whole field is not a court at all but the non-compliance procedure, which assists rather than condemns.