Nuclear Test Cases (Australia v. France), Request for the Indication of Interim Measures of Protection, [1973] ICJ Rep. 99

[NB– The background of this proceeding involves French atmospheric testing of nuclear devices on Muroroa Atoll as French territory in the South Pacific (which testing was eventually moved underground and continued until a voluntary moratorium in 1996). The French atomic tests were not unlike similar US tests at Bikini Atoll in the Marshall Islands 1946-1958. France’s nuclear tests were part of its development of the force de frappe, or independent nuclear deterrent capability during the Cold War. The ICJ proceedings were brought just as France moved from atmospheric to underground testing. Australia’s claim was that, because of its downwind location, it would inevitably be subjected to radioactive fall-out and thus France had no right to explode a nuclear device even on French territory without Australia’s consent because of the presumed injury to Australian interests.]

Excerpt from Diss. Op. Judge Ignacio-Pinto

There is another important point which does not seem to have been sufficiently taken into account in the arguments put forward by the French Government. I refer to its reiterated request to the Australian Government expressed in its Ambassador’s letter of 7 February 1973 to the Australian Prime Minister and Foreign Minister (Application. Annex 10. p. 57) that it be given some indication of the precise rules of international law which France is said to violate:

“But the French Government find it hard to see what is the precise rule on whose existence Australia relies. Perhaps Australia could enlighten it on this point.

In reality, it seems to the French Government that this complaint of the violation of international law on account of atomic pollution amounts to a claim that atmospheric nuclear experiments are automatically unlawful. This, in its view, is not the case. But here again the French Government would appreciate having its attention drawn to any points lending colour to the opposite opinion.”

This request for specific enlightenment has received no reply, and Australia has confined itself to presuming the existence of a right which in my view does not really exist, alleging moreover more or less hypothetical damage, the assessment of which is difficult in the extreme. Nevertheless the majority of the Court has seen fit to recognize that such damage, however uncertain or imprecise it may be, is sufficient to justify acceding to the request for the indication of provisional measures without any clear Statement of the nature of the rights which have to be protected or preserved.

Of course- Australia can invoke its sovereignty over its territory and its right to prevent pollution caused by another State. But when the French Government also claims to exercise its right of territorial sovereignty, by proceeding to carry out tests in its territory. Is it legally to deprive it of that right, on account of the mere expression of the will of Australia?

In my opinion, international law is now, and will be for some time to come, a law in process of formation and one which contains only a concept of responsibility after the fact, unlike municipal law, in which the possible range of responsibility can be determined with precision a priori. Whatever those who hold the opposite view may think, each State is free to act as it thinks fit within the limits of its sovereignty. And in the event of genuine damage or injury, if the said damage is clearly established, it owes reparation to the State having suffered that damage.

There is so far as I am aware, in international law no hierarchy in the exercise of the right of sovereignty, and the Order issued by the Court has- at least, for the moment- no legal ground for preventing the French Government from making use of its right of sovereignty and exploding an atomic device, as other States have done before it, and as one other State is still doing at the present time, in order to obtain the means of ensuring their own security.

Is Australia’s right, in the exercise of its sovereignty, to be regarded superior to the identical right possessed by France, which would thus rank second when it came to exercise of its own right?

By directing the French government to “avoid nuclear tests causing the deposit of radioactive, industrially in territory” (operative clauses of the Order: emphasis added), the Court certainly overstates the limits of its powers, and appears thereby to be innovating in declaring unlawful the exercise the right which can now has been regarded as falling within the sovereignty of a State. The Court is not in the Supreme Court as in municipal law, nor does have legislative powers, and if has no right to hand down a decision against a State which by a formal declaration excludes its jurisdiction over disputes concerning activities connected with national defense.

I entirely agree with Australia that the country runs considerable risk by seeing atomic fall-out descend upon its territory in seeing its people suffer the harmful effects thereof, and for my own part, I would like to see that risk finally exorcised, but I see no existing legal means in the present State of the law which would authorize a State to come before the Court asking it to prohibit another State from carrying out on its own territory such activities, which involve risks to its neighbors.

This is so pertinent that I find it expressed even in Moscow Treaty of 5 June 1963, the object to which is in fact the prohibition of atmospheric nuclear tests — the French government, incidentally, is not party to this Treaty — for Article IV thereof embodies a reservation which is so substantial, probably in order to satisfy the major States which hold the greatest stocks of nuclear weapons, that the prohibition becomes practically ineffective. Article IV provides that:

“This treaty shall be of unlimited duration.

Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other parties to the Treaty three months in advance.” (Emphasis added.)

Is it admissible that the reservation effected by these States should remain valid, so as to authorize them to recommence their nuclear experiments if extraordinary events should have jeopardized the supreme interests of their countries, while the Court’s Order forbids France to exercise its right to carry out its tests of the present time, no valid treaty obligation now exist to prevent it from doing so?

Does not the existence of such a treaty, containing such reservation, demonstrate the lack of legal basis whichever the Court to dismiss the Australian request for the indication of interim measures?

The point is that if the Court were to adopt the contention of the Australian request it would be near to endorsing a novel conception in international law whereby States would be forbidden to engage in any risk producing activity within the area of their own territorial sovereignty: but that would amount to granting any State the right to intervene preventively in the international affairs of other States. Yet Article 2, paragraph 7, of the Charter is categorical on that point.

In the present state of international law, the “apprehension” of a State, or “anxiety”, “the risk of atomic radiation”, do not in my view suffice to substantiate some higher law imposed on all States and limiting their sovereignty as regards atmospheric nuclear test.

Those who hold the opposite view may perhaps represent the figure heads or vanguard of a system of gradual development of international law, but it is not admissible to take their wishes into account in order to modify the present state of the law. …

Compare: Excerpt from Separate Opinion by Judge Ketron (1974) ICJ. Rptr. 297

For my part, I do not believe that it is possible as to set aside consideration of all the preliminary questions indicated in the order of 22 June 1973. More particularly, the Court ought in my view to have formed an opinion from the outset as to the true character of the dispute which was the subject to the Application; if the Court had found that the dispute did not concern a point of international law, it was for that absolutely primordial reason that it should have removed the case from its list, and not because the nonexistence of the subject to the dispute was ascertained after many months of proceedings.

It is from that angle that I believe I should consider the question of the admissibility of Australia’s application. It is still my view that, as I said in the dissenting opinion which I appended to the order of 22 June 1973, what is first and foremost necessary is to ask oneself whether atmospheric tests of nuclear weapons are, generally speaking, governed by norms of international law, or whether they belong to a highly political domain where the international norms of legality or illegality are still at the gestation stage. It is quite true that disputes concerning the interpretation or application of rules of international law may possess great political importance without thereby losing their inherent character of being legal disputes. It is nonetheless necessary to distinguish between disputes revolving on norms of international law and tensions between States caused by measures taken into domain not yet governed by international law. …

We can see a similar evolution taking place today in an Allied Field, that of the protection of the environment. Atmospheric nuclear tests, envisaged as the bearers of a particularly serious risk of environmental pollution, are a source of acute anxiety for present-day mankind, and it is only natural that efforts should be made on the international plane to erect legal barriers to can and that kind of test. In the present case the question is whether such barriers existed at the time of the filing of the Australian Application. That Application cannot be considered admissible if, at the moment when it was filed, international law had not reached the stage of applicability to the atmospheric testing of nuclear weapons. It has been argued that it is sufficient for two parties to be in dispute over a right for an application from one of them on that subject to be admissible. Such would be the situation in the present case, but to my mind the question of the admissibility of an application cannot be reduced to the observance of so simple formula. It is still necessary that the right claimed by the applicant party should belong to domain governed by international law. In the present case, the Application is based upon an allegation that France’s nuclear tests in the Pacific have given rise to radioactive fall out on the territory of Australia. The Australian government considers that its sovereignty has thereby been infringed in a manner contrary to international law. As there is no treaty between Australian and France in the matter of nuclear tests, the Application presupposes the existence of the rule of customary international law whereby States are prohibited from causing, through atmospheric nuclear test, the deposit of radioactive fall-out on the territory of other States. It is therefore the existence or nonexistence of such a customary rule which test to be determined.

It was suggested in the course of the proceedings that the question of the admissibility of the Application was not of an exclusively preliminary character and that consideration of it could be deferred until the examination of the merits. This raises a question regarding application of Art 67 of the 1972 Rules of Court. The main motor for the revision of the provisions of the rules which are now found in that article was to avoid the situation in which the Court, having reserved its position with regard to a preliminary question, orders lengthy proceedings on the substantive aspects of the case only to find at the end that the answer to that preliminary question has rendered such proceedings superfluous. It is true that Article 67 refers only to preliminary objections put forward by the respondent, but it is obvious that the spirit of that article ought also to apply to the consideration of any question touching the admissibility of an application, which the Court is to resolve ex officio. It is also plainly incumbent upon the Court under Art 53 of the statute, to take special care to see that the provisions of Art 67 of the rules are observed when the respondent is absent from the proceedings.

In sum, the Court, for the first time, has had occasion to apply the provision of its revised rules, which replaced the former provisions enabling preliminary objections to be joined to the merits. One may ask where the real difference between the new rule and the old lies. For my part, I consider that the new rule, like the old, this does upon the Court discretionary power to decide whether, in the initial stage of the case, such and such a preliminary question ought to be settled before anything else. In exercising this discretionary power of the Court ought, in my view, to assess the degree of complexity of the preliminary question in relation to the whole of the questions going to the merits. If the preliminary question is relatively simple, whereas consideration of the merits would give rise to lengthy and complicated proceedings, the Court should settle the preliminary question at once. That is what the spirit in which the new Art.67 of the rules was drafted requires. These considerations appear to me to be applicable to the present case.

The Court would have done itself the greatest harm if, without resolving the question of admissibility, it had ordered the commencement of proceedings on the merits in all their aspects, proceedings which would necessarily have been lengthy and complicated if only because of the scientific and medical problems involved. It should be recalled that, in the preliminary stage from which they had not emerged, the proceedings had already been subjected to considerable delays, which left the Australian government ample time to prepare its written pleadings and oral arguments on all aspects of admissibility. How, in those circumstances, could the consideration of the question had been postponed to some later date?

As is clear from the foregoing, the admissibility of the Application depends, in my view, on the existence of a rule of customary international law which prohibits States from carrying out atmospheric tests of nuclear weapons giving rise to radioactive fall out on the territory of other States. Now it is common knowledge, and is admitted by the Australian government itself, that any nuclear explosion in the atmosphere gives rise to radioactive fallout over the whole of the Hemisphere where it takes place. Australia, therefore, is only one of many States on whose territory France‘s atmospheric nuclear tests, and likewise those of other States, have given rise to deposit radioactive fallout. Since the Second World War, certain States have conducted atmospheric nuclear test for the purpose of enabling them to pass from the atomic to the thermo-nuclear stage in the field of armaments. The conduct of these States proves that their Governments have not been of the opinion that customary international law forbade atmospheric nuclear tests. What is more, the treaty of 1963 whereby the first three States to have acquired nuclear weapons mutually banned themselves from carrying out further atmospheric tests can be denounced. By the provision in that sense the signatories of the Treaty showed that they were still of the opinion that customary international law did not prohibit atmospheric nuclear tests.

To ascertain whether a customary rule to that effect might have come into being, it would appear more important to learn what attitude is taken by States which have not yet carried out the tests necessary for reaching the nuclear stage. For such States the prohibition of atmospheric nuclear tests can signify the division of international community into two groups: States possessing nuclear weapons and States not possessing them. If a State which does not possess nuclear arms refrains from carrying out the atmospheric tests which would enable it to acquire them and if that abstention is motivated not by political or economic considerations but by conviction that such tests are prohibited by customary international law, the attitude of that State would constitute an element in the formation of such custom. But where can one find proof that a sufficient number of States, economically and technically capable of manufacturing nuclear weapons, refrain from carrying out atmospheric nuclear tests because they consider that customary international law forbids them to do so? The example recently given by China when it exploded a very powerful bomb in the atmosphere is sufficient to demolish the contention that there exists at present a rule of customary international law prohibiting atmospheric nuclear tests. It would be unrealistic to close one’s eyes to the attitude, in that respect, of the State with the largest population in the world.

To complete this brief outline, one may ask what has been the attitude of the numerous States on whose territory radioactive fall-out from the atmospheric tests of the nuclear powers has been deposited and continues to be deposited. Have they, generally speaking, protested to these powers, pointing out their tests were in breach of customary international law? I do not observe that such has been the case. The resolutions passed in the general assembly of United Nations cannot be regarded as equivalent to legal protest made by one State to another and concerning concrete instances. They indicate the existence of strong current of opinion in favour of proscribing atmospheric nuclear tests. That is a political task of the highest urgency, but it is one which remains to be accomplished. Thus the claim submitted to the Court by Australia belongs to the political domain and is situated outside the framework of international law as it exists today. …

Compare: Excerpt from Dissenting Opinion by Judge De Castro

As is clear from the foregoing, the admissibility of the application depends, in my view, on the existence of the rule of customary international law which prohibits States from carrying out atmospheric tests of nuclear weapons giving rise to radioactive fallout on the territory of other States. Now it is common knowledge, and is admitted by the Australian government itself, that any nuclear explosion in the atmosphere gives rise to radioactive fall out over the whole of the hemisphere where it takes place. Australia, therefore, is only one of many States on whose territory France’s atmospheric nuclear test, and likewise those of other States, have given rise to deposit of radioactive fall out. Since the Second World War, certain States that conducted atmospheric nuclear tests for the purpose of enabling them to pass from the atomic to thermonuclear stage in the field of armaments. The conduct of these States proves that their governments have not been of the opinion that customary international law forbade atmospheric nuclear test. What is more, the Treaty of 1963 whereby the first three States to acquired nuclear weapons mutually banned themselves from carrying out further atmospheric test can be denounced. By the provision in that sense the signatories of the Treaty showed that they were still of the opinion that customary international law did not prohibit atmospheric nuclear tests.

To ascertain whether a customary rule to that effect might have come into being, it would appear more important to learn what attitude is taken by States which have not yet carried out the tests necessary for reaching the nuclear stage. For such States the prohibition of atmospheric nuclear test can signify the division of international community into two groups States possessing nuclear weapons and States not possessing them.

…

Can the question be settled in accordance with international law, or does it still fall within the political domain? There is also the question whether this is a matter of admissibility or one going to the merits. A distinction must be made as to whether it relates to the political or judicial character of the case (question of admissibility), whether it relates to the rule to be applied in the circumstances in which that rule can be regarded as part of customary law (question going to the merits). This is a difficulty which could have been resolved by joining the question of admissibility to the merits. But there is no need to settle these points. In my opinion, it is clear that the Applicant is not entitled to ask the Court to declare that atmospheric nuclear tests are unlawful. The Applicant does not have its own material legal interest, still less a right which has been disputed by the other party as required by the General Act. The request that the Court make a general and abstract declaration as to the existence of a rule of law goes beyond the Court’s judicial function. The Court has no jurisdiction to declare that all atmospheric nuclear tests are unlawful, even if as a matter of conscience it considers that such tests in general, or even all nuclear tests in general, are contrary to morality and to every humanitarian consideration.

4. The right relied on by the Applicant with regard to the deposit of radioactive fall-out on its territory was considered in the Order of 22 June 1973 (Paragraph 30). We must now consider whether reliance on this right makes the request for examination of the merits of the case admissible. The Applicant’s complaint against France of violation of its sovereignty by introducing harmful matter into its territory without its permission is based on the legal interest which is been well known since the time of Roman law. The prohibition of immissio (of water, smoke, fragments of Stone) into a neighboring property was a feature of Roman law (D.8, 5, 8, paragraph 5). The principal sic utere tuo ut aliaenum non laedas is a feature of law both ancient and modern. It is well known that the owner of property is liable for intolerable smoke or smells, “because he oversteps [the physical limits of his property], because there is immissio over the neighboring properties, because he causes injury”

In international law the duty of each State not to use its territory for acts contrary to the rights of other States might be mentioned (I.C.J Reports1949, p.22). The arbitral awards of 16 April 1938 and 11 March 1941 given in a dispute between United States and Canada mention the like precedents as to pollution of the air, but also the analogy with pollution of water, and the Swiss litigation between the cantons of Solothurn and Aargau. The conflict between United States and Canada with regard to the Trail Smelter was decided on the basis of the following rule:

“No State has the right the use of its permit to use its territory in such 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”(Trail Smelter arbitration,1938–1941, United States of America v. Canada, U.N.R.I.AAA, Vol.III, p.1965.)

If it is admitted as a general rule that there is a right to demand prohibition of the emission by neighboring properties of noxious fumes, the consequence must be drawn, by an obvious analogy, that the applicant is entitled as the Court to uphold its claim that France should put an end to the deposit of radioactive fall-out on its territory.

The question whether deposit of radioactive substances on the Applicant’s territory as a result of the French nuclear test is harmful to the Applicant should only be settled in the course of proceedings on the merits in which the Court would consider whether the intrusion or trespass into the territory of another is unlawful in itself or only if it gives rise to damage: in the latter hypothesis, it would still have to consider the nature of the alleged damage, its existence in its relative importance, in order to pronounce on the claim for prohibition of the French nuclear tests. …

Copyright 2020–21 © David Linnan.

Arbitral Tribunal November 16, 1957. [1]

(Petren, President; Bolla, De Luna, Reuter, De Visscher).

THE FACTS — This arbitration concerned the use of the waters of Lake Lanoux, in the Pyrenees. Briefly, the French Government proposed to carry out certain works for the utilization of the waters of the lake and the Spanish Government feared that these works would adversely affect Spanish rights and interests, contrary to the Treaty of Bayonne of May 26, 1866, between France and Spain and the Additional Act of the same date. In any event, it was claimed that, under the Treaty, such works could not be undertaken without the previous agreement of both parties.

Lake Lanoux lies on the southern slopes of the Pyrenees, on French territory. [Fn 2 — The planned diversion amounts to 25% of the entire of the flow of the carol, the water of which is used in Spain by 18,000 farmers]. It is fed by streams which have their source in French territory and which run entirely through French territory.
…
[The two relevant provisions of the Treaty of Bayonne are:]

“Article 10: If, after having satisfied the actual needs of users recognized on each side respectively as regular, there remains at low tide water available where the frontier is crossed, such water will be shared in advance between the two countries, in proportion to the areas of the irrigable lands belonging to the immediate respective riparian owners, minus land already irrigated.

“Article 11: When in one of the two States it is proposed to construct works or to grant new concessions which might change the course or the volume of a watercourse of which the lower or opposite part is being used by the riparian owners of the other country, prior notice will be given to the highest administrative authority of the Department or of the Province to which such riparian owners are subject by the corresponding authority in the jurisdiction where such schemes are proposed, so that, if they might threaten the rights of the riparian owners of the adjoining Sovereignty, a claim may be lodged in due time with the competent authorities, and thus the interests that may be involved on both sides will be safeguarded. If the work and concessions are to take place in a Commune contiguous to the border, the engineers of the other Country will have the option, upon proper notice given to them reasonably in advance, of agreeing to inspect the site with those in charge of it.

…

The Spanish Government asked the Tribunal to declare that the French Government should not execute works for the utilization of the waters of Lake Lanoux in accordance with the modalities and guarantees provided in the Electricite de France project, for if no agreement were previously arrived at between the two Governments on the problem of dealing with the said waters, the French Government would be committing a breach of the relevant provisions of the Treaty of Bayonne of May 26, 1866, and the Additional Act of the same date.

The French Government asked the Tribunal to declare that it was correct in maintaining that in carrying out, without an agreement previously arrived at between the two Governments, works for the utilization of the waters of Lake Lanoux on the conditions laid down in the French project and proposals mentioned in the Compromis (Arbitration Agreement) of November 19, 1956, it was not committing a breach of the Treaty of Bayonne of May 26, 1866, and the Additional Act of the same date.

“As to question (B):

“In the Compromis, the Spanish Government had already declared that, in its opinion, the French scheme required for its execution ‘the previous agreement of both Governments, in the absence of which the country making the proposal is not at liberty to undertake the works’.

“In the written as well as the oral proceedings, that Government developed this point of view, completing it by the recital of the principles which ought to govern dealings leading to such prior agreement. Two obligations, therefore, would seem to rest upon the State which desires to undertake the works envisaged, the more important being to reach a prior agreement with the other interested State; the other, which is merely accessory there to, being to respect the other rules laid down by Article II of the Additional Act.

“The argument put forward by the Spanish Government is stated on two planes — the Spanish Government takes its stand, on the one hand, on the Treaty and the Additional Act, on the other hand on the system of faceries or compascuites which exists an the Pyrenean frontier, as well as on the rules of international common law. The two latter sources would permit, first of all, the interpretation of the Treaty and the Additional Act of 1866, and then, in a larger perspective, the demonstration of the existence of an unwritten general rule of international law. The latter (it is contended) has precedents which would permit its establishment in the traditions of the system of faceries, in the provisions of the Pyrenean Treaties and in the international practice of States in the matter of the industrial use of international watercourses.

“II. Before proceeding to an examination of the Spanish argument, the Tribunal believes it will be useful to make same very general observations on the nature of the obligations invoked against the French Government. To admit that jurisdiction in a certain field can no longer be exercised except the condition of, or by way of, on agreement between two States is to place an essential restriction an the sovereignty of a State, and such restriction could only be admitted if there were clear and convincing evidence. Without doubt, international practice does reveal some special cases in which this hypothesis has became reality; thus, sometimes two States exercise conjointly jurisdiction over certain territories (joint ownership, co-imperium, or condominium); likewise, in certain international arrangements, the representatives of States exercise conjointly a certain jurisdiction in the name of those States or in the name of organizations. But these cases are exceptional, and international judicial decisions are slow to recognize their existence, especially when they impair the territorial sovereignty of a State, as would be the case in the present matter.

“In effect, in order to appreciate in its essence the necessity for prior agreement, one must envisage the hypothesis in which the interested States cannot reach agreement. In such case, it must be admitted that the State which is normally competent has lost its right to act alone as a result of the unconditional and arbitrary opposition of another State. This amounts to admitting a ‘ right of assent’, a ‘right of veto’, which at the discretion of one State paralyses the exercise of the territorial jurisdiction of another.

“That is why international practice prefers to resort to less extreme solutions by confining itself to obliging the States to seek, by preliminary negotiations, terms for an agreement, without subordinating the exercise of their competences to the conclusion of such an agreement. Thus, one speaks, although often inaccurately, of the, obligation of negotiating an agreement ‘. In reality, the engagements thus undertaken by States take very diverse forms and have a scope which varies according to the manner in which they are defined and according to the procedures intended for their execution; but the reality of the obligations thus undertaken is incontestable and sanctions can be applied in the event, for example, of an unjustified breaking off of the discussions, abnormal delays, disregard of the agreed procedures, systematic refusals to take into consideration adverse proposals or interests, and, more generally, in cases of violation of the rules of good faith (Tacna-Arica Arbitration: Reports of International Arbitral Awards, vol. II, pp. 921 et seq. ;[1] Case of Railway Traffic between Lithuania and Poland: P.C.I.J., Series A/B, No. 42, pp. 108 et seq.[2]).

“In the light of these general observations, and in relation to the present case, we will now examine in turn whether a prior agreement is necessary and whether the other rules laid down by Article II of the Additional Act have been observed.

“A. The necessity for a prior agreement.

“12. First, to enquire whether the argument that the execution of the French scheme is subject to the prior agreement of the Spanish Government is justified in relation to the system of compascuites or faceries or in relation to international common law; the collected evidence would permit, if necessary, the interpretation of the Treaty and the Additional Act of 1866, or rather, according to the wider formula given in the Spanish argument, to affirm the existence of a general principle of law, or of a custom, the recognition of which, inter alia, is embodied in the Treaty and the Additional Act of 1866 (Spanish Memorial, p. 81).
…

“13. The Spanish Government endeavoured to establish similarly the content of current positive international law. Certain principles which it demonstrates are, assuming the demonstration to be accepted, of no interest for the problem now under examination. Thus, if it is admitted that there is a principle which prohibits the upstream State from altering the waters of a river in such a fashion as seriously to prejudice the downstream State, such a principle would have no application to the present case, because it has been admitted by the Tribunal, in connection with the first question examined above, that the French scheme will not alter the waters of the Carol. In fact, States are today perfectly conscious of the importance of the conflicting interests brought into play by the industrial use of international rivers, and of the necessity to reconcile them by mutual concessions. The only way to arrive at such compromises of interests is to conclude agreements on an increasingly comprehensive basis. International practice reflects the conviction that States ought to strive to conclude such agreements: there would thus appear to be an obligation to accept in good faith all communications and contracts which could, by a broad comparison of interests and by reciprocal good will, provide States with the best conditions for concluding agreements. This point will be referred to again later on, when enquiring what obligations rest on France and Spain in connection with the contracts and the communications preceding the putting in hand of a scheme such as that relating to Lake Lanoux.

“But international practice does not so far permit more than the following conclusion: the rule that States may utilize the hydraulic power of international watercourses only on condition of a prior agreement between the interested States cannot be established as a custom, even less as a general principle of law. The history of the formulation of the multilateral Convention signed at Geneva on December 9, 1923, relative to the Development of Hydraulic Power Affecting More than One State, is very characteristic in this connection. The initial project was based on the obligatory and paramount character of agreements whose purpose was to harness the hydraulic forces of international watercourses. But this formulation was rejected, and the Convention, in its final form, provides (Article I) that

‘[The present Convention] in no way alters the freedom of each State, within the framework of international law, to carry out on its territory all operations for the development of hydraulic power which it desires’;

there is provided only an obligation upon the interested signatory States to join in a common study of a development programme; the execution of this programme is obligatory only for those States which have formally subscribed to it.

“Customary international law, like the traditional Law of the Pyrenees, does not supply evidence of a kind to orient the interpretation of the Treaty and of the Additional Act of 1866 in the direction of favoring the necessity for prior agreement; even less does it permit us to conclude that there exists a general principle of law or a custom to this effect.

…

“22. The content of the second obligation is more difficult to determine. The’ claims’ mentioned in Article II are related to the various rights protected by the Additional Act, but the essential problem is to ascertain how’ all the interests that may be involved on both sides’ ought to be safeguarded.

“It must first be determined what are the ‘interests’ which have to be safeguarded. A strict interpretation of Article II would permit the reading that the only interests are those which correspond with a riparian right. However, various considerations which have already been explained by the Tribunal lead to a more liberal interpretation. Account must be taken of all interests, of whatsoever nature, which are liable to be affected by the works undertaken, even if they do not correspond to a right. Only such a solution complies with the terms of Article 16, with the spirit of the Pyrenees Treaties, and with the tendencies which are manifested in instances of hydroelectric development in current international practice.

“The second question is to determine the method by which these interests can be safeguarded. If that method necessarily involves communications, it cannot be confined to purely formal requirements, such as taking note of complaints, protests or representations made by the downstream State. The Tribunal is of the opinion that:” according to the rules of good faith, the upstream State is under the obligation to take into consideration the various interests involved, to seek to give them every satisfaction compatible with the pursuit of its own interests, and to show that in this regard it is genuinely concerned to reconcile the interests of the other riparian State with its own.
…
[1] Found also at 24 International Law Reports 101 (1957).

Copyright 2020–21 © David Linnan.

Excerpted Complaint filed April 29, 1996, in US District Court, Eastern District for Louisiana Civil Action 96-1476 Tom Beanal et al v. Freeport McMoran, suit ultimately dismissed

[NB– The Freeport-McMoran Gold mine in Irian Jaya (now Papua) is the largest single foreign investment project in Indonesia, and has on occasion attracted criticism related to mine operations as in the case of alleged environmental violations linked to claims of violations of indigenous rights. The basic argument is that if the environment is degraded, the culture and people living traditionally in that environment go too. Two things to note, first that Freeport has always claimed that it satisfies all applicable Indonesian domestic environmental law regulation, and second to ask yourself whether there is customary law, general principles or whatever source of international law to give technical substance to the claim of environmental violations and/or cultural genocide. Is the Complaint’s underlying claim about what the law is (legally cognizable), or is it just what the parties filing the suit would like the law to be? Otherwise, ask yourself whether the person who drafted the complaint includes the cultural genocide count to oppose damage to the environment, or vice-versa? The Alien Torts Claim Act is a federal statute allowing suit in US federal courts on the basis of a violation of international law. Concerning the ATCA generally, see Alien Torts Claim Act:  United States 1789 (Britannica).

ENVIRONMENTAL VIOLATIONS

24.

The plaintiffs allege that the mining operations conducted by defendant corporations referred to herein as the Grasberg mining operation resulted in the destruction of the indigenous peoples’ natural waterways within the region; the deforestation of rain forest and the contamination of the region’s surface and ground water through ore leachate. Said violations of international environmental law are tantamount to acts of eco-terrorism.

25.

The Grasberg mining operation deposits in the local waterways approximately 120,000 metric tons of tailings which contain trace amounts of metals and are the waste product of the open pit mining operation of defendant corporations at Grasberg.

26.

The environmental ramifications of the tailings released into the waterways of the plaintiff’s natural living area include toxicity, volume and mass which have resulted in the disruption of the nature waterways, the pollution of natural waterways, the overflow and alteration of the natural waterways leading to the deforestation of the region.

27.

The FREEPORT mining concession has discharged tailings resulting in massive deposition of tailings of Ajkwa River and the sheet flow of tailings which has substantially destroyed a significant area of the low land rainforest between the Ajkwa River and the Minajeri River. The destruction of said areas has resulted and caused a major environmental, health and safety hazard within Irian Jaya.

28.

Additional problems resulting from the operation of the FREEPORT mining concession include acid mine drainage from the tailings, the concentration, mobilization and bio availability of non-toxic and toxic materials in the tailings, the degradation of surface and ground water quality, increased sedimentation, sheeting and other adverse affects that have been caused by the higher percentage of coarser grain tailings, and the mismanagement of solid and hazardous waste at the site.

29.

The FREEPORT mining concession additionally has caused the hollowing of several mountains which are beautiful, natural resources of the glacial mountain range in the region, spontaneous re-routing of major rivers, the death of a large track of the sago Forest and the increase in levels of toxic and non-toxic materials and metals within the river systems of the area.

30.

Other major rivers affected by the dumping of the tailings into the rivers of the indigenous peoples’ region are the Aghawagon River and the Otomona River equally affected by the mismanagement of the tailing released by the defendant corporations.

31.

As a result of the lack of a proper tailings management program by defendant corporations, areas as large as 50 square kilometers of fresh water swamp forest have been transformed into a denuded tailings deposit area.

32.

The contamination of the waterways by the enormous tonnage of tailings dumped by the defendant corporations prevents sunlight penetration into the water, prevention of oxygen dilution and is a practice which is unacceptable anywhere on this planet.

33.

The plaintiffs allege that acid mine drainage from the Grasberg ore zone is an equally significant international environmental violation caused by the defendant corporations and is caused by chemical and biological oxidation of sulfides and excavation of sulfide containing waste materials during mining which exposes previously unweathered rock to oxygen thereby greatly accelerating the oxidative process.

34.

One of the by products of sulfide oxidation is sulfuric acid which in turn can dissolve residual metals and other metals such as arsenic in the mine waste to produce an extremely toxic leachate.

35.

Plaintiffs allege that defendant corporations have failed to engage in adequate acid mine drainage management programs and have failed to develop a comprehensive mining and waste handling plan to ensure prevention of acid generation from waste rock tailings, open pits and underground work areas.

36.

The Grasberg mining operation within the FREEPORT concession already exhibits visual evidence of acid mine draining which is the result of sulfide oxidation within its property.

37.

The plaintiffs allege that due to the mismanagement of the defendant corporations that toxic leachates from the open pits of the Grasberg mining operation have been widely disbursed into the round water and surface waterways within the FREEPORT concession.

38.

Defendant corporations mining operations in Irian Jaya violate every acceptable international norm and has and will result in the continued destruction of the beautiful valleys, glacial mountain ranges and the rain forests of the region.

39.

The corporations mining operations disrupted the delicate ecosystem balance between the sea, the beaches, the swamp, the rain forest and the alpine areas within the FREEPORT mining concession.

40.

Plaintiffs specifically allege that the defendant corporations have failed to engage in a zero waste policy, an acceptable enclosed waste management system, have failed to maximize environmental rehabilitation, have failed to engage in an appropriate acid leachate control policy, have failed to adequately monitor the destruction of the natural resources of Irian Jaya and have disregarded and breached its international duty to protect one of the last great natural rain forests and alpine areas in the world.

CULTURAL GENOCIDE

41.

The plaintiffs specifically reallege each and every paragraph of the foregoing Complaint as if repeated herein.

42.

The plaintiffs allege that the human rights violations and the eco-terrorism engaged in by defendant corporations have destroyed the rights and culture of the Amungme and other Indigenous tribal people.

43.

Since defendant corporations have commenced their operations, many of the Amungme people have displaced and relocated to areas in the lowlands away from their cultural heritage of highland living.

44.

Other Indigenous tribal people, including but not limited to Komora Tribe, have met the same fate.

45.

The egregious human rights and environmental violations, which have terrorized the tribal communities of the Amungme and other Indigenous Tribal people, destroyed their natural habitats and caused dislocation of the populations have resulted in the purposeful, deliberate, contrived and planned demise of a culture of indigenous people whose rights were never considered, whose heritage and culture were disregarded and the result of which is ultimately to lead to the cultural demise of an unique pristine heritage which is socially, culturally and anthropologically irreplaceable.

Copyright 2020–21 © David Linnan.

Introduction on Background

1/3 Please read for our first class the following non-legal materials

• Flood Woman vs. Climate Doom (Part 1, courtesy of The Post and Courier)
• Carbonomics:  The Future of Energy in the Age of Climate Change (Goldman Sachs Equity Research 12/11/19, as redacted)

Mahathir bin Mohamad, Greening of the World to a Better Living: Address by the Prime Minister of Malaysia at the Official Opening of the Second Ministerial Conference of Developing Countries on Environment and Development, on 27 April 1992. Kuala Lumpur; Jabatan perkhidmatan Penerangan Malaysia, 1992

Linnan, “A Common View of Development: Richer Versus Better, and Who Decides?” in W El-Ansary & D Linnan, eds, Muslim and Christian Understanding: Theory and Application of “A Common Word,” at 235-57 (Palgrave MacMillan, 2010)

Porter, Gareth and Janet Welsh Brown. Global Environmental Politics. Boulder; Westview Press, 1991. pp 15-33

2/3 Please study the maps and explanations at “Map of the Week: ‘Market Size By Gross Domestic Product, 1995’” (Mappenstance, U Richmond Blog 11/03/14) and biodiversitymapping.org. Then read and consider Climate Change and the 75% problem:  The five areas where we need innovation (Bill Gates Blog 10/17/18) and A warmer world will hurt this group more than any other:  We need to help the world’s poorest people adapt to climate change (Bill Gates Blog 03/16/21).  Meanwhile, you will note that Bill Gates used as his guide worldwide averages, but the share of specific sectors like transportation is significantly greater in the United States (compare Sources of Greenhouse Gas Emissions, EPA 2019).

3/3 Please read the following legal (thought) materials
Sulistiawati & Linnan, “Covid- 19 offers preview of environmental threats” (Straits Times 05/02/20)

• Roston, Murray & Dottle, “Life and Death in Our Hot Future Will Be Shaped By Today’s Income Inequality” (Bloomberg, 08/03/20)
• Bressler, The mortality cost of carbon (nature communications 07/29/21)
• Can you beat my score on this climate change quiz? (Bill Gates Blog 10/17/18)

Copyright 2020–21 © David Linnan.

Introduction on Background

Concerning the readings, Dr. Mahathir as Malaysian prime minister was one of the Global South’s leading politicians and spokesmen for a generation. (He retired in the early 2000s, but then returned for a leadership cameo in the midst of Malaysia’s still on-going 1MB scandal, which you may read more about in the US financial pages recently in conjunction with Goldman Sachs’ apparent settlement of the related civil litigation for U$3+ billion.)

1/4 Which is the best way to approach climate change or biodiversity issues and why, Flood Woman’s moralism, Goldman Sachs Carbonomics’ economic analysis of coming changes, or Dr. Mahatir’s political analysis of the split between interests of the developed and developing world?

Ask yourself how Dr. Mahathir’s view of international environmental law matters expressed just prior to the 1992 UN Rio Conference on Environment and Development (informally known as the Earth Summit, which yielded the Greenhouse Gas Convention, the Biodiversity Convention and the Rio Declaration) compares to the contemporaneous views of states or environmental NGOs from industrialized countries (NGOs means non-governmental organizations, for example Greenpeace)? What do you think changed, if anything, in the late 1980s to early 1990s?

Does the average US or European environmental activist then or now see things the same way as Dr. Mahathir, and is Dr. Mahathir right in portraying environmentalists in the developed world as shills for “Global North” timber companies (a conspiracy view)?

When you read the Linnan piece written for a Christian-Muslim interreligious book as a presentation of differing perspectives on “development,” note the general focus on economics, but also the bridge to environmental considerations that changed as documented in the World Bank reports between the early 1990s (environmental concerns are about exhaustion of resources, impoverishing developing countries’ future) and the early 2000s (environmental concerns are about “sustainability”). How do the concerns and timeline on the development side fit either Dr. Mahatir’s views, or those of environmental activists then or now in the developed world?

You need to understand that ideas about distributional justice may drive the climate change narrative on the developing world side, since in practical terms it queered the Kyoto Protocol (an amendment in effect to the Greenhouse Gas Convention to allocate “carbon emission rights” among countries), and arguably thereafter US participation under the Paris Agreement. The modern terminology for “distributional justice” concerns in the environmental sphere would be “environmental justice,” which currently is touched on in the cross-over between BLM activists and the discussion of “green” programs generally, mostly on the progressive political side (e.g., why Columbia will never site a municipal incinerator in the Shandon neighborhood, as opposed to Northeast Richland County). As a general matter, how should/can we address distributional claims in either the domestic or international environment and climate setting? Are they the same or different in nature?

2/4 How do you interpret the Porter & Brown global environmental politics piece’s emphasis on NGO involvement in international environmental law, the role of differing state groups (north-south divide, etc.), plus the underlying point in Dr. Mahathir’s speech that the Global South as relatively poor wishes to become rich through economic development so that it perceives attempts to limit economic growth as attempts to keep them “poor & barefoot”? From the Global South perspective, they are not asking for a hand-out. Instead, they are being constrained from using their own resources in the same fashion as the developed world did 50-100-150 years ago, in the course of becoming wealthy and sophisticated industrialized countries. Is that the way Bill Gates sees matters?

3/4 Look to the 1995 world map by GDP. Does that map look the same or different now 25 years later? Why, and if it has changed, how would it look now? Understand that GDP is traditionally a rough proxy for energy use/carbon generation in industrialization, which moves the discussion smoothly towards climate change. This is a more graphic way of looking at how the pie was divided in 1995, which is not too long after Dr. Mahatir speaks in 1992, and not too long before the Bush Administration declined to ratify the Kyoto Protocol in the early 2000s. How can you deal with the idea that developing countries see their future in increasing economic growth, while environmental law is typically perceived as slowing or impeding growth (the jobs for pollution equation traditionally)? What do the biodiversity maps tell you about the geographic concentrations of biodiversity globally, and what is the connection to climate change as such?  Is Bill Gates more concerned about climate change or biodiversity, and why?

Looking back to the Porter & Brown piece, if global environmental politics are so complicated, what do you think the law will look like, and how will it be made? In fact, our international environmental law course will largely be about how the law is to be made (largely by treaty) because there are relatively few areas of environmental concern where the law currently exists in a well-developed state and is generally accepted as working (e.g., the Basel Convention on Hazardous Waste has been a step forward, but by no means addresses all our issues; meanwhile, traditional ideas of sovereignty render it difficult to address issues via customary law, etc.). How can all the competing interests be balanced, and what approach to law makes the most sense (human rights-based, treaty negotiations stressing state interests, litigation against individual polluters, etc.)?

4/4 Finally, what do you make of the Sulistiawati & Linnan Singapore ST editorial (SE Asia’s NYT equivalent) to the effect that contrary to popular belief, instead of COVID-19 displacing environmental concerns, it should be understood as a dress rehearsal for climate change difficulties? True or false, why or why not? And does it make a difference that the latest economists’ attempts to develop a better cost model for climate change demonstrate increasingly higher but disparate costs (more heat-related deaths in developing countries, as in the Roston, Murray & Dottle article)? What is the connection between Bressler’s piece on the “true” cost of carbon emissions incorporating mortality effects, whether you ask the question about whether Flood Woman, Carbonomics, or Dr. Mahatir’s approach is the best for the issues, or what the revised carbon cost numbers may imply for Goldman Sachs’ economic analysis?  [Red-hots may wish to look at Carbonomics: The green engine of economic recovery (Goldman Sachs Equity Research 06/16/20, as redacted) in working the carbon price incorporating mortality numbers, with a view to the effects of such revised numbers in the assumptions embedded in the Goldman report).

Copyright 2020–21 © David Linnan.

Introduction on Background

1/3 We shall spend our first class talking about what might be termed broader framework and background issues, so that you later have a better understanding of the significance of the more technical portions of international environmental law. We shall also do a run-through of some basic public international law principles and doctrine relevant to international environmental law. There are some distinctive aspects to international environmental law, including the heavy involvement of NGOs, overlaps to both country-level economic development, and between trade law and environmental law as a result, sharp divisions between the developing and developed world (and also within the developed world, since the Europeans are seemingly considerably “greener” than Americans and richer Asians), and a growing sense that climate change as we move from pure mitigation increasingly to an adaptation phase may involve substantial disparate impacts (most developing countries lie close to the equator, hence will suffer increasing heat and food system impacts arguably faster and more), while most industrialized countries lie further off the equator in temperate zones (so may suffer more variable weather, but probably do not face constantly increasing heat conditions like tropical and desert locations– meanwhile, the US itself may encounter special problems because of the Southwestern deserts and local pressure on water resources).

There is a sense that we increasingly need to articulate law in one form or another to address climate issues (since like the pandemic, the shared problems will not wait for us in abeyance). But how can we do that, absent agreement, or more to the point, how do you reach agreement in the first place? And what is the place of incentives like market-based principles or private industry codes articulated in part as safe harbors? We eventually face the question whether it is good enough to change behavior, regardless of whether changes result from “law,” but that is the essential trade off between “soft” and “hard” law. But is that good enough? And how to deal, together or separately, with the concept(s) that we are actually experiencing two separate climate challenges, one as to “climate change” but another under the rubric “biodiversity”?

2/3 This course looks generally at the nature of the international law process in this area (with its limited number of treaty and substantive law principles), economic and other perspectives on natural resource usage, state sovereignty and abiding tensions between industrialized and developing countries concerning pollution problems (beyond prohibitions, to technology transfer and the “who pays” question). Since established law is minimal, this course examines the framework for international environmental law de lege ferenda. We try to understand differing players’ views of the problems, since it still is relatively early in the law-making process. People begin to have a broader understanding of the problems, but for better or worse there is still visible hesitation about how to address them beyond members of the environmental community. Nonetheless, all those projected 2050 climate change developments, etc., should they eventuate, are scheduled to happen during the professional careers of currently enrolled law students. You presumably will be senior businesspeople, lawyers, judges, elected officials, and civil servants in your mid-fifties in 2050, so you should experience in your own professional lifetimes all such choices made. That is the national schedule, but guess what, sea level rise is projected to raise serious issues in Charleston increasingly already 2035-40 under the Fourth National Climate Assessment (increased sunny day and king tide flooding, as well as enhanced surge issues in hurricanes).  So issues in the Lowcountry may become increasingly serious by your late thirties, so you may have to deal with them for over half your professional careers.

3/3 Now please do the Unit 1 readings and prepare the problems and questions section before our online class. The basic pattern is that you should prepare the readings each week. The problems section will contain problems and questions sometimes to be addressed individually, and sometimes to be assigned to groups to be worked on and presented in class. But for this week, you should prepare everything individually.

Copyright 2020–21 © David Linnan.

Participating Universities

University of South Carolina Law School

Teaching Faculty

Prof. David Linnan

Coverage

Environmental concerns transcend national borders, but present distinctly different issues to differing groups of countries in an area where “soft” law predominates. We shall be looking at two things in particular this Fall. First, how things look within the US after the United States apparently has dropped out of the Paris Agreement (and questions about what we do on the Greenhouse Gas Convention)? And second, how things look in the rest of the world, both as a matter of their perceptions and the commercial reality that our private sector-business community (aka clients) do not do business only in the US? The not so hidden issue is that if international environmental law is about global issues, you can run but you cannot hide longer term. And interestingly enough, there are a number of private sector initiatives in the nature of industry safe-harbors that clients are already complying with, meanwhile the thicket of treaty law is slowly but surely thickening. So there are questions of what constitutes “law,” and does it matter if the goal is changing behavior? International environmental law does not work like traditional command and control environmental regulation of the sort you may have been exposed to in domestic environmental law courses.

This course looks generally at the nature of the international law process in this area (with its limited number of treaty and substantive law principles), economic and other perspectives on natural resource usage, state sovereignty and abiding tensions between industrialized and developing countries concerning pollution problems (beyond prohibitions, to technology transfer and the “who pays” question). Since established law is minimal, this course examines the framework for international environmental law de lege ferenda. We try to understand differing players’ views of the problems, because it still is relatively early in the law-making process. People begin to have a broader comprehension of the problems, but for better or worse there is still visible hesitation about how to address them beyond members of the environmental community. Nonetheless, all those unpleasant 2050 climate change projections, etc., should they eventuate, are scheduled to occur during the professional careers of currently enrolled law students.

Meeting Times & Places

The course is scheduled to meet regularly 09:20-11:30 Columbia time Wednesdays in South Carolina. Due to COVID-19 issues, however, we shall meet synchronously online via WebEx. Class sessions should be recorded and available on Panopto, but that is only for review purposes. Office hours will be as follows. On request, we can schedule a virtual meeting at any time (via WhatsApp, Skype, or whatever; my e-mail for scheduling an appointment is davidkeithlinnan@yahoo.com), or we just use the class connection to hang around online for a short period after class finishes. The Law School officially seeks to minimize presence in the Law School Building at 1525 Senate Street, but I shall also set office hours at the Law School Tuesday and Wednesday afternoons (tentatively 14:00–17:00), since the COVID-19 compromise seems to be that we can meet “outside” in the Law School courtyard. But please let me know if you are coming then physically, so we can arrange when to meet and where.

Text and Approach

We shall save you the cost of a commercial law casebook in this course. The order of coverage from our web-based materials follows:

• Unit 1 — Introduction on Background
• Unit 2 — Customary Law as Basis for International Environmental Law
• Unit 3 — Human, Development & Other Rights-based Legal Approaches to International Environmental Law
• Unit 4 — Human Rights Views Differing: ATCA Then, Now Business & Human Rights Approaches Internationally (Customary Law Versus General Principles)
• Unit 5 — Private Sector Voluntary Codes & ESG (Market-Orientation & Litigation Safe Harbors?)
• Unit 6 — Treaty Interpretation and Treaty Process Approaches (Framework Conventions Versus the Package Deal Approach)
• Unit 7 — Issues with Markets, Distributive Justice & Agency Problems in International Environmental Law
• Unit 8 — Trade/Scientific Risk NTBs & Non-State Aspects (GMOs Plus)
• Unit 9 — Trade & Environment (WTO & GATT Article XX(b)&(g) Exceptions
• Unit 10 — Implementation & International Monitoring on the Example of Ozone
• Unit 11 — Climate Change as the Ultimate Test for the Framework Convention
• Unit 12 — Domestic Implications of International Treaty-Making: The Basel Convention & Hazardous Waste
• Unit 13 — 1973 CITES Convention & Approaches to the Marine Environment: New Science, Old Treaties & Regional Governance
• Unit 14 — 1992 Biodiversity Convention, Sustainability & Indigenous Knowledge
• Unit 15 — Enforcement, Natural Resources & Who Decides?

This course is mostly a specialized international environmental law course, but is offered without prerequisites knowing that some students will have prior knowledge and training in public international law, while others may not. We shall try to address this via online resources and office hours, but if all else fails, the public international law nutshell and similar black letter law summaries are helpful.

Dr. Linda Yanti Sulistiawati is a faculty member at the Faculty of Law, Gadjah Mada University, Yogyakarta, Indonesia, visiting this year at the National University of Singapore on a research fellowship. You will encounter her name in a jointly authored opinion piece you read for the first class. Bu Linda will also use our website materials part of the time to teach her own online UGM international environmental law class this Fall 2020. Wearing another hat, she has also participated as a member of Indonesia’s negotiating delegation in UN environmental and climate change conferences. So she will join us online at some point to discuss and explain how those big international climate change conferences look from the inside of a major developing country delegation (and I plan to teach in the other direction in her UGM course presumably in December). It would be nice if we could set up some connection for our class to the UGM international environmental law students in their own WebEx class, but I am not sure how it could be accomplished given the different time zones, etc. Suggestions, because you are going to have to work out the questions professionally in the longer term with the UGM law students, or their developing country colleagues, who will be facing the questions themselves in 2050 at a senior level in their own system?

Assessment

Grading will be based largely on either (i) a 20-page research paper for two credit hours, or (ii) a 24-hour check-out final examination if you take the course for two credit hours. Students may choose either assessment option if they take the course for two credit hours. There is also an option to take the courses for three credit hours, including writing a 30 page paper structured to satisfy the graduation legal writing requirement. Students wishing to write a research paper should talk early and often with the instructor. Satisfaction of the graduation writing requirement means that you will be required to choose a topic in consultation with the instructor, produce an outline, followed by a first draft and then a final version of the paper. Note that you must confer with the instructor at least three times in the process: to choose a topic cooperatively, to review your writing outline together, and then for comments between your first draft and the final paper version. The process may be harder due to COVID-19 pandemic complications, but we shall work it out. We shall also organize a help session with the reference librarians to introduce you to international environmental law and climate change sources, as a way to help you get started.

You will also be required to prepare certain problems and projects for class in groups, where we shall employ a self-grading process within groups. Your grade will also reflect those on the margin (basically, up or down a half letter grade in +/- terms)

Copyright 2020–21 © David Linnan.