Enacting and developing international environmental law - Introduction to International Environmental Law - page 75

The UN Convention on the Law of the Sea (Part XV) applies both judicial
and arbitration procedures: the Convention obliges its parties to settle most of
their disputes that cannot be resolved through negotiation (with certain excep-
tions, for example relating to fi shing or marine border disputes) in one of the
judicial or arbitration procedures identifi ed in the Convention in order to result
in a legally binding outcome. States can also take disputes related to the pollution
of the marine environment to judicial settlement.
For instance, Ireland claimed that the United Kingdom had violated sev-
eral rules of the Convention on the Law of the Sea by approving the Mox
Plant which processed nuclear waste; Ireland considered the environmental
impact assessment defi cient. It claimed that the Mox Plant caused, among other
things, radioactive contamination of the Irish Sea marine environment. In 2001,
Ireland commenced arbitration proceedings related to the Mox Plant in the
Arbitral Tribunal constituted under Annex VII of the UNCLOS. (This was only
part of the legal strategy of Ireland that resulted in the EU Commission taking
Ireland to the EU judiciary. In 2006, the then European Court of Justice of the
European Communities confi rmed that Ireland had violated EU regulations by
taking a dispute within EU law to arbitration proceedings outside the EU legal
system.)
Regional courts of human rights are also considered international courts of
justice, such as the European Court of Human Rights or the Inter-American
Court of Human Rights, as well as courts of justice that are based on regional
integration, such as the Court of Justice of the European Union. During the
operation of the ad hoc criminal tribunals for the former Yugoslavia and Rwanda,
the permanent International Criminal Court (ICC) was established to address
massive atrocities such as genocide, crimes against humanity and war crimes; it
commenced in 2002. In human rights courts, individuals are litigants in cases of
state violation of human rights, whereas individuals stand accused in international
criminal courts.
So many new international courts of justice and other international dispute
settlement procedures have been created after the Cold War but some academics
fi nd this problematic. One of the problems is that states can effectively commence
dispute settlement with a strategy to fi nd the most favourable international court
of justice or court of arbitration proceedings for their specifi c dispute (the so-called
forum shopping phenomenon, an example of which can be seen in the Mox
Plant case above). A case could be considered to be an environmental protection
dispute by state B, but state A could instead interpret it as a free trade dispute and
take it to the WTO Dispute Settlement Panel.
The decisions of international courts of justice bind the disputing parties
only, but in practice can actually infl uence the development of international
law greatly as courts pay a good deal of deference to their own prior decisions
and those of one another.
It is in the permanent international courts of justice and courts of arbitration
that international law plays the most prominent role. National legal systems do
make decisions on the basis of international law as well, but in that context it is