Enacting and developing international environmental law - Introduction to International Environmental Law - page 76

just one source of law, to be taken into account alongside domestic constitutions
and national regulations. Although states do consider international law in their
foreign policies, their national interests are also crucial to decision-making. In
the UN International Court of Justice, a dispute between states is resolved on
the basis of international law only. 28
Increasing numbers of international courts of justice and courts of arbitration
have intentionally developed international law while resolving disputes
between states. The International Court of Justice has also in many cases clari-
fi ed the criteria according to which we can identify customary international
law; we could say that it has updated the principles by which international law
is created in the modern international law system.
International courts of justice are doing important work by signalling to the
international community when a principle or rule has reached the status of
customary international law and becomes legally binding to all world nations.
The status of the principle of no-harm in international environmental law (see
Chapter 4 , 'No-harm principle', p. 109), for instance, was unclear for decades,
until the UN International Court of Justice in 1996 stated that it was legally
binding worldwide. Since then, international and national courts of justice,
foreign ministries and the academic community have been able to concentrate
on defi ning more precisely the content of this principle.
Disputes relating to the exploitation and pollution of the environment are
being submitted increasingly to the UN International Court of Justice.
However, states have never resorted to the UN ICJ's Chamber for
Environmental Matters, established in 1993, which would have special expertise
in the settlement of international environmental disputes. This is presumably
because states fear that the judges in the Chamber could interpret international
law much more strictly in terms of environmental protection. Since 2006, the
ICJ has no longer elected members to the Chamber, since it had turned out
to be redundant.
From the perspective of environmental protection, the decisions of the
International Court of Justice have thus far not been very favourable, but
nonetheless have developed and specifi ed international environmental law.
This might seem paradoxical and hence merits closer examination.
In its decision on the dam dispute between Hungary and Slovakia (the Gabčíkovo-
Nagymaros case), the Court simply stated that the parties shall continue to coop-
erate by virtue of the bilateral treaty of 1977, but when interpreting it, take into
account all the rules and principles of the developing international environmen-
tal law. Since the Court's judgment in 1997, Slovakia has built a dam on its
side of the Danube and initiated another lawsuit against Hungary, claiming that
Hungary was not willing to implement the 1977 treaty in good faith.