Customary Law as Basis for International Environmental Law?
1/5 The first problem to be prepared and worked by all students is the Rotunda Problem. Please answer this after reading carefully the three precedents, namely Trail Smelter, Lake Lanoux and the France-Australia Nuclear Test cases. Recognize that you are asked to address the problem as a matter of public international law, rather than whether companies or individuals might be subject to suit in a domestic tort disaster lawsuit, etc. This problem is instead about the legal responsibility of and between states under customary international law.
2/5 The three customary law precedents in the readings are all you need to resolve this Rotunda problem, but you need to understand them in terms of how national sovereignty means a sovereign state’s activities on its own territory would normally not be subject to questioning under the customary law (and the state is in effect responsible for controlling private party actions on its own territory, not in terms of an absolute guarantee, but more in terms of reasonable efforts to regulate their behavior and activities, etc.). So traditional ideas of sovereignty entail that a first state is not subject to challenges from a second state for actions on the first state’s own territory. However, theoretically the first state is responsible for prevention of a second state being subject to injury on its own territory resulting from actions or effects on the first state’s territory. The scope of the exact rules balancing sovereignty and state responsibility in legal terms is in the decisions, and the traditional law of nations recognized also areas beyond the sovereignty of any state, with the high seas being the classic example.
3/5 The Daiichi Nuclear Disaster Problem is the second problem, but there we shall assign a group of students to analyze and present this problem. The basic facts involve a nuclear electric generation facility operated by Tokyo Electric Power Company (TEPCO). The electric plant was located in Fukushima as coastal city in a geologically active area. An earthquake caused a local tsunami, which rushed on land and took out the main and back up electric power generators cooling the TEPCO reactors, with the result that the reactors overheated and eventually breached inside their containment buildings. The rest of the sad story can be read in the wiki entry, which all students should read. Bottomline, considerable amounts of contaminated, radioactive material and water flowed into the entire coastal area from the reactors and into the Sea of Japan as a result of tsunami and reactor breach. After Chernobyl, Fukushima is probably the most significant nuclear reactor accident of the modern era. Again, please answer this after reading carefully the three precedents, namely Trail Smelter, Lake Lanoux and the France-Australia Nuclear Test cases. Recognize that you are asked to address the problem as a matter of public international law, rather than whether companies or individuals might be subject to suit in a domestic tort disaster lawsuit, etc. This problem is instead about the legal responsibility of and between states under customary international law.
4/5 What is your group’s opinion also of an indirect question concerning what is the actual legal principle behind Trail Smelter with special reference to the 1972 Stockholm Declaration? Look particularly at Stockholm Principle 21, and ask yourself whether it is an accurate statement of the customary law principle you see articulated in Trail Smelter (and for those of you without any prior background in public international law, understand that the reference to areas beyond the jurisdiction of states traditionally means the high seas, which is itself a term of art under the Law of the Sea (LOS)– so the question is whether radioactive runoff into the high seas is covered, why or why not, at least under customary law (which is the heart of the Fukushima issue). Further on the Stockholm Declaration, I want you to ask yourself what is exactly its legal status as a “source of law” (traditional public international law terminology for from where public international law comes) of something like a UN “declaration,” which is not a “treaty” within the mean of traditional formal “source of law” doctrine in public international law. Instead, it is essentially the closing conference document for a UN meeting of states. So ask yourself whether and why such a declaration either declares or makes customary law? This is asking essentially how do we make customary law in the modern international setting, which question Handl at times dodges in his comparison of the 1972 Stockholm Declaration and the 1992 Rio Declaration. This arguably represents the border between “soft” and “hard” law here, what many think the law should be, versus what the law is (up to the point where you either execute a treaty addressing the problem, or you satisfy the technical rules for the formation of customary law). Other than pedantry, why the focus on formal requirements in customary law formation?
5/5 Finally, for all students, if you look closely at the rest of the Stockholm Declaration, most of it looks more aspirational in terms of “principles” versus what you might call “law,” at least in public international law terms. Then ask yourself one more question looking at the Stockholm Declaration as a whole, namely what is the “human environment,” and is it somehow different from the “environment-environment” as you might understand it under domestic environmental law? So for purposes of international environmental law, what is the “environment” and so how do we conceive of international environmental law, if the Stockholm Declaration is the modern foundational document?
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