Legal Imagination and Teaching

* Any views or opinions expressed in this report are those of the authors in their personal capacities and do not represent the views of their organizations, including the Department of State or the U.S. Government. This report is jointly submitted on behalf of the International Environmental Law Committee of the ABA Section on International Law (SIL) and the International Environmental and Resources Law Committee of the Section on Environment, Energy, and Resources Law (SEER) by Vice-Chairs and Co-Editors Andrew Schatz, Associate with DLA Piper LLP (US), and Sara Vinson, Environmental Claims Associate at ACE Group. Stephanie Altman, Attorney Advisor in the Office of General Counsel, International Law Section, National Oceanic and Atmospheric Administration (NOAA), contributed on marine environmental protection. Derek Campbell, Attorney-Advisor, Office of General Counsel, International Law Section, NOAA, contributed on marine conservation and trade and the environment. Lee A. DeHihns, III, Senior Counsel with Alston & Bird LLP, and Ann Powers, Associate Professor of Law at Pace University Law School contributed on sustainability. Joseph W. Dellapenna, Professor of Law at Villanova University Law School, authored the section on water resources. Royal Gardner, Professor of Law and Director, Institute for Biodiversity Law and Policy, Stetson University College of Law, contributed on the Ramsar Convention. David Gravallese, Attorney-Adviser in the Office of the Legal Adviser, U.S. Department of State, contributed on ozone. Richard A. Horsch, a Partner with White & Case LLP, contributed on hazardous waste developments. Finance-related developments are incorporated throughout and were contributed by David Hunter, Professor, and Erika Lennon, Coordinator of the Program on International and Comparative Environmental Law, at American University Washington College of Law. Erica Lyman, Clinical Professor of Law at Lewis & Clark Law School, contributed on wildlife and biological resources. Thomas Parker Redick, with Global Environmental Ethics Counsel, contributed on international regulation of biotechnology. Andrew Schatz contributed on climate change. R. Justin Smith, Assistant Chief, Law and Policy Section, Environment and Natural Resources Division, U.S. Department of Justice, contributed on international environmental litigation. 1. For developments during 2011, see Andrew Schatz et al., International Environmental Law, 46 INT’L LAW. 419 (2012). For developments during 2010, see David R. Downes et al., International Environmental Law, 45 INT’L. LAW. 409 (2011).

The relationship between international environmental law and international humanitarian law, like relationships between many other subsystems of contemporary international law, has not yet been articulated. The problem of environmental damage in international armed conflict lies at the intersection of these two branches and thus provides an ideal opportunity to investigate this relationship. Rather than simply evaluating the applicable international law rules in their context, we break them into elements that we separately assess from both (international) environmental law and international humanitarian/international criminal law perspectives. By doing so, we identify how international law rules for cross-sectoral problems may appropriately combine the existing expertise and institutional strengths of simultaneously applicable branches of international law, and also discover how an evaluation of the ultimate appropriateness of the cross-sectoral rules adopted may be substantially affected by the different frames of reference that are used by those working within the different fields.

Multilateral environmental agreements (MEAs) illustrate the maturation and sophistication of international environmental law. If anything, the diversity and flexibility of compliance approaches under MEAs highlight the limited purchase of simple dichotomies such as binding vs. non-binding or vs. ineffectiveness. This chapter begins by exploring the concept of in international law in general. It suggests that a concept of enforcement as imposition of legal sanctions, or penalties, is unduly narrow. The chapter then canvasses some of the main theoretical assumptions about international law and compliance. An exploration of this theoretical context illuminates the reasons underlying common misconceptions about international law and its enforcement, and helps put in perspective the evolution of approaches to compliance in international environmental law. Finally, against the backdrop of these general considerations, the chapter examines key features of the approaches to compliance and enforcement in international environmental law and MEAs. Keywords: enforcement; international environmental law; international law; multilateral environmental agreements (MEAs); treaty compliance

There is a gap in the international law-making forums in how north and south collaborate and contribute to the development of international laws and policies. In the field of environmental law and sustainable development, this affects the potential obligations and the commitments that the states make under international agreements. Therefore, in addition to the states, the non-state actors are increasingly becoming an important voice in balancing the scales of international politics and international law-making. The objective of this research is to bring out the need to incorporate the southern concerns through equality: which encompasses representation of southern concerns at the international law-making forums by the use of NGOs. The research involves qualitative analysis of data and international legal instruments. Third World Approaches to International Law (TWAIL) is used as a lens to analyze the north-south dimensions in international law. The research provides for justification and rationale for legitimizing the NGO participation in international environmental law and sustainable development in order to make it more participatory, equitable and just. The chapter argues that such an approach would reflect the move away from state-centric governance towards a more democratic and inclusive international governance and law-making regime. Therefore it would add to the existing legal literature on north and south dimensions in international environmental law and sustainable development law.

This book examines 'The Espoo Convention on Environmental Impact Assessment in a Transboundary Context', which celebrates the twentieth anniversary of its adoption in 2011, and its 'Kiev Protocol on Strategic Environmental Assessment' which came into force in July 2010. In addition to contributing to international environmental law, the Convention has prompted significant changes to European environmental law. The chapters in this collection explain the role of transboundary environmental impact assessment in international and European law, and explore the relationship between international and European law in the context of potential application of the Convention. They also examine examples of the Convention in practice, and consider the potential application of the Protocol. While the focus of the book is on the situation in the European Union, reference is made to the relationship between EU and non-EU member states, notably in connection with important cases in the Arctic, the Danube Delta and the Baltic Sea.

International Environmental law is a field that has made much progress through a variety of international conventions, resolutions, declarations, guidelines, action plan such as the Convention on Biological Diversity in 1992, the Framework Convention on Climate Change and its protocols in 1992, the Stockholm Declarations in 1972, the World Natural Charter in 1982, and the Rio Declarations in 1992. The common awareness of the international community on the importance of the global environment has brought controversy about the protection of the earth environment and state responsibility. In this regard, international society has introduced a number of legal principles and approaches, which have played a crucial role in the development and proliferation of international environmental law in order to solve the problems of international environmental law. At the same time, however, the legal principles and approaches have been criticized for lack of legal binding force and specificity. Research on the international environmental law has been published consistently in the Korea International Law Review. Therefore, it is very meaningful to look at the development aspect of legal theory in the filed of the international environmental law through the Korea International Law Review for the 20th anniversary of the Korea International Law Review. There is a limit to the facts that results of this study can not be generalized since scope of this research is restricted to the Korea International Law Review. However, many great scholars of the international law academic community have published articles on the Korea International Law Review. Thus, it is worthwhile that this paper can partially infer perspective of the international law academic community in korea. This research attempts to classify the articles of the Korea International Law Review concerning the international environmental law by time and a subject so as to understand advance of law theory and research trends over time.

This essay aims to launch the proceedings of international law on a high note, and to suggest that many common impressions of it are wrong in general, and particularly wrong in the context of international environmental law. Even more particularly, multilateral environmental agreements (MEAs) illustrate the maturation and sophistication of international environmental law. If anything, the diversity and flexibility of compliance approaches under MEAs highlight the limited purchase of simple dichotomies such as “binding vs. non-binding” or “enforcement vs. ineffectiveness”. The essay begins by exploring the concept of “enforcement” in international law in general. It suggests that a concept of enforcement as imposition of legal sanctions, or penalties, is unduly narrow. The essay then canvasses some of the main theoretical assumptions about international law and compliance. An exploration of this theoretical context illuminates the reasons underlying common misconceptions about international law and its enforcement, and helps put in perspective the evolution of approaches to compliance in international environmental law. Finally, against the backdrop of these general considerations, the author examines key features of the approaches to compliance and enforcement in international environmental law and MEAs. The aim is to provide a ‘bigger picture’, a context for the detailed discussions of compliance mechanisms that make up the bulk of the conference proceedings.

This article takes a closer look at the scientific, policy and catalytic functions of the United Nations Environment Programme (UNEP) and its Assembly (UNEA) and UNEA’s role in addressing emerging issues in international environmental policy and law by examining two concrete examples. The first shows how UNEA was able to contribute to the international environmental law on mercury: UNEA played a catalytic policy role by contributing to the development of international soft law, customary law, and treaty law. Further, UNEA played a policy shaping role by influencing the further development of key international environmental law principles in the negotiations of new environmental norms in other fora. The second example describes UNEA’s unsuccessful attempt to address geoengineering. Building on the two examples, the article identifies factors that support or impede the fulfilment of UNEA’s role in addressing emerging issues of international environmental policy and law.

Despite the extraordinary proliferation of instruments of international environmental law since the 1972 UNCHE Conference in Stockholm, it appears that diverse forces are acting to maintain the internal coherence of this sub-field of international law, as well as its position firmly within the international law system. A range of institutions and processes ensure the continuing unitary nature of international environmental law within a unitary system of international law, notably including the universalist instincts of the International Court of Justice, the codification routinely undertaken by the International Law Commission, and the universal, pervasive and indivisible character of increasingly relevant human rights norms. These processes of “convergence” act to unify and enrich the fabric of the increasingly elaborate and sophisticated complex of rules, principles and institutional structures comprising international environmental law, while suggesting its growing developmental maturity after 50 years of frenetic evolution and supporting its continuing coherent elaboration.

Convergence in International Environmental and Natural Resources Law

This chapter seeks to introduce this book by describing the interaction between international, European Union (EU) and Japanese environmental law. Specifically, it will show how international law influenced the EU environmental law and the Japanese Basic Environmental Law. This chapter explains how international and European environmental law impacted the Japanese Basic Environmental Law and, compares the Japanese and EU environmental law. In fact, the EU environmental law has been influenced by international environmental law, although the EU presently plays a leading role in shaping the world environmental law. This chapter will describe how the Japanese Basic Environmental Law and the EU environmental law have developed simultaneously, albeit sometimes differently. First, I briefly describe the development of the EU environmental law and movements in global environmental protection. Second, I describe the Japanese Basic Environmental Law based on the aspects of, history, structure and content.

This chapter describes the concept of precaution in international environmental law, which concerns anticipatory action in response to scientifically uncertain threats of environmental harm. Its most frequently referenced formulation can be found in Principle 15 of the Rio Declaration on Environment and Development. The Rio Declaration's endorsement of precaution in Principle 15 introduced to international environmental law a new discourse over the appropriate evidentiary foundations of global environmental regulation. The chapter then focuses on four key questions (and attendant debates) regarding precaution that have been critical in understanding its role in international environmental law. These questions concern the meaning of precaution as a conceptual pillar of international environmental law; the legal status of precaution as a principle of international environmental law; the formulation and understanding of precaution evident from international environmental treaties and case law; and the consequences of applying precaution in decision-making concerning threats of environmental damage.

At meantime the era of human rights succeeding the end of World War Ⅱ, the institution and order of international society underwent dramatic transformation that obviously featured in the expansion, specialization and systemization of international organizations, for example, the United Nations and its sub-organizations such as the unification of the European Union and American and African regional organizations. In addition, the order of international laws has changed radically. Besides the interacting development among the independent systems of international environmental law, international criminal law, international economic law, that has delicately constituted both the procedural and essential rules of international law, the relation between international laws and sovereign nations has also been re-defined. Through the introduction to the concept of ”complete value of international society”, the connection between sovereignty and international law has been re-interpreted. The most innovative breakthrough was nothing but the concepts of Jus Cogens and Obligations Erga Omnes, as well as the acceptance of the philosophical reasoning behind the concepts. Thus international law has gradually diversified its appearance and, by further development of the above concepts that jointed the different fields of international law, the institution of international law has been overturned. From the aspect of substantial norm, the continuing restriction of applying the opposition rule, development of treaty reservation, succession and admission of nation, ruling of extradition treaties, restriction on national exemption, defining the serious jeopardizing act of international crime, the gradual change of the status of international soft law and the transforming of the national liability system, have attributed to revolution of the content of international law. From the aspect of the procedural norm, the expansion of common jurisdiction and the change of international/domestic lawsuit initiation, have shown great influence that closely connected international criminal law. Therefore, Jus Cogens ought to be the most important medium of the recent development of international law that revealing the combination of Jus Cogens and state responsibility law system, also further led international law to the equivalence of rights and obligations. Frankly, the Vienna Treaty Law Convention signed in 1969, was the milestone of the international law development, which positioned the Jus Cogens in the statute law. If ”power-oriented” is the characteristic of international law in 19th century, then international law after 1950s has gradually dispensed primitiveness and become ”rule-oriented”. Although 1969 could be the beginning of Jus Cognes, suspicion on carrying out this concept in international law still remains. International law scholar, Ian Sinclair, concluded opinions toward Jus Cogens that further confirmed ”Jus Cogens is still a mystery”. Some scholars even express directly that nevertheless adopting Jus Cogens has essentially attributed to the transformation of international law, yet there is worry about the application of Jus Cognes could be contradictive, and even opening the gate for some certain countries to import particular international law systems matching their ideology, thus becoming denial to a diversified international society. Even though contrary opinions toward Jus Cogens remain, from 1968 the concept has been accepted by sovereign countries and also adopted to judgments that further expand Jus Cogens, making this theory combine with other institutions of the international law rather than be confined within treaty law field. Hence, focusing on Jus Cogens and the connection as well as the change of Jus Cogens in the late 40 years, this thesis analyzes the elaboration on Jus Cogens from national practice, international justice and scholars. However, this thesis could only be able to introduce this theory briefly due to the limited length. Therefore, this thesis mainly discuss the following particular sectors of the theory of Jus Cogens: (1) the definition and development of Jus Cogens. (2) the objects regulated by Jus Cogens and the effect. (3) connections between Jus Cogens and other international law concepts newly developing trend. (4) At last, examining and looking back to dialogues made between Jus Cogens and international law.

INTRODUCTION. The international legal content of the concept of sustainable development, so common in international treaties and sometimes expressed in different terms, undoubtedly requires modern clarification, as well as its place in the system of international law. Firstly, it is interesting to answer the question of how ideas of sustainable development have resulted in their crystallization as a concept of international law. Secondly, using treaty sources of the international law of the sea, where this notion is particularly common, it is meaningful to identify the intentions of States parties to such treaties to consider sustainable development clauses as legal obligations. Thirdly, it is important to determine whether these clauses now constitute a principle of the international law of the sea or whether they retain the status of separate treaty obligations that are not interrelated. MATERIALS AND METHODS. The article is based on the analysis primarily of the norms of the international law of the sea, in which the term «sustainable development» is applied, with reference to the scientific and legal literature and judicial decisions relevant to the topic. The research involves methods of legal construction, legal modeling, analysis and synthesis, systematic, struc­tural-functional, formal-logical, formal-legal, histori­cal and chronological methods. RESEARCH RESULTS. The analysis of international treaties and other international legal instruments applicable to the issue has shown that the long-standing ideas of «sustainable development» are now normatively well-established; that the provisions of international treaties on sustainable development have already developed as an inter-branch (cross-cutting) principle of international law at the intersection, primarily, of the international law of the sea and international environmental law; that States undertake in practice explicit obligations and exercise relevant rights in the framework of upholding this cross-cutting principle. The authors’ vision of the content of this principle is offered and its various manifestations in the international law of the sea are shown. DISCUSSION AND CONCLUSIONS. The study critically evaluates the prevailing view in the Western international legal literature that the idea of sustainable development was suggested by the 1987 Report «Our Common Future» (the Brundtland Report). It has been shown that the idea predates this report, and that the initial mechanisms for sustainable development had already been reflected in existing interna­tional treaties by 1987. The suggestion is made that the international legal concept of sustainable development has several cumulative components that together define its content. Among these there are elements that are part of this concept primarily because they are means of achieving sustainable development goals, having a much narrower scope if interpreted in isolation. The international legal principle of sustainable development seeks to resolve the tensions primarily between the States’ right to development and their duty to protect the environment, serving as a nexus that ensures that neither the one nor the other is neglected. Its social dimension is undoubtedly significant, although it has been interpreted very differently in the interna­tional legal literature. In the context of contemporary international law, it is expedient to assert an inter-branch (cross-cutting) nature of the sustainable development principle: its legal content extends beyond the scope of specific branches of international law, including international law of the sea, international environmental and economic law. However, most international treaties of a universal and especially regional character that contain some form of sustainable development clauses currently refer to sources of the international law of the sea, which may certainly change in the future.

The general understanding of law is that, it is ‘a body of rules’ or ‘social order’ that regulate the relations in human community, various entities, societal harmonization and individuals to govern their respective mutual understanding. The law defines and regulates societal relationships. It “is an element, the only one, by which we are able to differentiate definitely and successfully between a legal, moral and religious order.” It is a balancing technique of the rights and obligations of humans in their daily life. The term law is a “grand norm” and thus, a general concept replacing all kinds of “laws”; It could be municipal law of states such as civil law, criminal law, liberal law, business law, intellectual property law, economic law, feudal law, socialist law, law, medical law, land law, media law, etc. Municipal law is a domestic law, or name used in replace of the national, statutory, internal law or domestic law of states. It applies to nationals, body of politic and others within state in that limited territorial jurisdiction. The legislative organ of state has supreme power to enact and enforce such laws in the country. The municipal law of the state is usually limited in the scope to nations and regulates the domestic issues, international law is a beyond that. On the other hand, there are certain areas of law developed at international level. These are; private international Law, international human rights law, international humanitarian law, international criminal law, refugee law, international environmental law, international economic & trade law, international space law, and Islamic law [Sharia law] is among few to mention. Municipal law and international law share something communal (or have similar normative conducts as being a law and regulate certain acts). Laws, whether national or international are not permanent; it can be made, amended, reformed and altered at any time. There is no clear way to measure law, its purpose and identify clear line between them to develop a certain model for each of them. The question may arise does international law satisfy legal requirements or normative standards to be considered as [international] law? Some legal scholars and jurists argue ‘if international law can be entitled as a true law or not’. To know whether international law is a true law or not it is would be nice to know the nature and functions of international law. Those who accept the legality of international law consider it as a prefect law with similar footing as the municipal law. Is international law a law? Those who support this view says, it is law because it doesn’t have another name than to be considered as [international] law; it is law because it has a certain procedural and substantive rules to follow; it is a law because, it regulates certain international acts conducted worldwide; it is a law because municipal law is usually limited to a territorial jurisdiction and do not reach for international remedies; it is a law because world nations have something to use separately and to share communally based on general principles of international law; international law regulates the relationship between states, international organizations and individuals across the globe; international law is designed in its own way, applies among sovereign states, and usually applied by international tribunals; international laws are sometimes practiced in national courts, in foreign offices, in international organization offices, and in regional organization offices. Therefore, international law exists as a law, even as a perfect law. International law is a prefect legal system has yet to develop and it doesn’t have to be seen through the ‘eyeglass’ of the municipal law of the states. Thus, the purpose of this article is to elaborate the views regarding this issue and to forward different legal arguments. Under the following title, I have provided three topics. Opposing view, proponents, my take regarding these views and application of international law.