Setting environmental standards for the conservation of marine living resources through the practice of international judiciary: An examination from the perspectives of arbitration v. judicial settlement and Compromis application v. unilateral application

Abstract

The practice, related to the conservation of marine living resources, of international courts and tribunals such as International Court of Justice, International Tribunal for the Law of the Sea and arbitral tribunals, has contributed to setting various kinds and forms of environmental standards for such conservation, at least in the following three ways: 1) standard setting by international judiciary itself; 2) assistance for standard setting by the parties; 3) clarification of the requirements for valid domestic standard setting.The advantages of environmental standards are considerable: a standard often reduces the costs of obtaining information and doing business because those who may be affected by a decision on an environmental matter have a right to know in advance what criteria will be applied; it can determine the point at which a sanction may be applied against someone damaging the environment; it also provides a benchmark for performance; it may provide a basis for assessing the adequacy of policies and regulatory systems; and where it relates to a specified future date, it serves as an important guide for the investment plan.However, environmental standard setting through the practice of international judiciary meets at least the following five difficulties: 1) environmental standard setting needs a lot of scientific knowledge;2) environmental standards are often very technical; 3) environmental standards frequently need periodical revision; 4) policy considerations are needed to set environmental standards; 5) the scope of law-making by international judiciary – especially in the case of judicial settlement where the strict application of law is strongly required – is inherently limited.This paper aims at examining what different influence, according to the type of international judiciary and to the manner of application, is given to environmental standard setting through the practice of international judiciary.