GM crop case:

The government of State A is considering approving issuing licences to farmers to grow genetically modified (GM) crops within its territory. State B shares a land border with State A and currently imposes a ban on the planting of GM crops wi
Instructions:

International Environmental Law Essay topic
GM crop case:
The government of State A is considering approving issuing licences to farmers to grow genetically modified (GM) crops within its territory. State B shares a land border with State A and currently imposes a ban on the planting of GM crops within its territory, on grounds that it is concerned that GM planting represents a threat to the environment and public health. State B is concerned that, if licensing of GM crops goes ahead in State A, arable crops and wild flora within its territory might become subject to adverse impacts as a result of cross-pollination from GM seeds blown by winds across the shared land border. State B is accordingly very keen to prevent State A from permitting the cultivation of GM agricultural produce.
Assess to what extent customary international law assists State B in its quest to restrain State A from authorising the planting of GM crops

Legal principles of International Environmental Law: state sovereignty and responsibility
Useful sources

This seminar, first in a series of three, will consider certain foundational legal principles underpinning international environmental law. This particular seminar considers the impact of the core principles of statal sovereignty and responsibility in relation to transboundary environmental harm. In addition the principle of co-operation between states will be assessed.

Core  reading:
Textbook(s) – read at least one of the following:

Birnie/Boyle/Redgwell (2009): Chapter 3, especially sections covering pages 106-152, 175-184, 190-205, 208-210.
Sands/Peel (2012): pp187-200 of Chapter 6.
Beyerlin/Marauhn (2011): Chs 5-6

Suggested selected further reading:
-Handl G, ‘Transboundary Impacts’ – Ch22 in Bodansky/Brunee/Hey (Eds), The Oxford Handbook of International Environmental Law (2007 Oxford)
– Pages 211-237 of Ch4 of Birnie/Boyle/Redgwell

Legal sources
Transboundary harm:
-Trail Smelter Arbitration: 1938 and 1941 Trail Smelter Arbitration (USA v Canada) before the Arbitral Tribunal American Journal of InternationalLaw 33 (1939) 182
http://www.jura.uni-muenchen.de/einrichtungen/ls/simma/tel/case8.htm
-International Court of Justice’s 1996 Advisory Opinion in The Legality of the Threat or Use of Nuclear Weapons  (ICJ rulings located at: http://www.icj-cij.org/icjwww/idecisions.htm)
– ICJ 1997 ruling on the dispute between Hungary and Slovakia in the case concerning the Gabcíkovo-Nagymaros Project.  (ICJ rulings located at:
http://www.icj-cij.org/icjwww/idecisions.htm)
-International Law Commission’s 2001 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities
http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_7_2001.pdf

Extraterritorial measures:
-Bering Sea Fur Seals Arbitration (1893) Arbitral tribunal
American Jl of Int Law (1909)
-Shrimp/Turtle Case(US – Import prohibitionof certain shrimp and shrimp products(1998) World Trade Organisation Appellate Body
38 ILM 118 (1999)
-SS Lotus Case (France v Turkey) (1927) Permanent Court of International Justice PCIJ Series A, No 9
-Case C-5/94 R. v. Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas [1996] ECR I-2553. European Court of Justice.

Other selected reference materials

There are also a number of general academic and legal professional commentaries available on the subject of environmental law and policy. See for example:

General environmental law texts and commentaries:
The following reasonably comprehensive sections in EU and international law, reflecting the fact that much of the law in this area in fact stems from supra-national sources. These are less expensive that the specialist texts and provide a useful starting point for most areas although they may lack sufficient detail for in depth study. The text by the McEldowneys is a particular useful clear introduction for the non-lawyer to environmental legal issues:
•    Bell and McGillivray, Environmental Law, (7th edn), (2008: Blackstone Press)
•    Holder J/Lee M, Environmental Protection, Law and Policy (2007, Cambridge)
•    McEldowney/McEldowney, Environment and the Law (1996: Longman)
•    Sunkin, Ong and Wight, Sourcebook on Environmental Law, (2ndedn) (2002: Cavendish)
•    Wolf/Stanley, Principles of Environmental Law (5th Ed)(2010:Routledge)

Theoretical and general policy related publications
•    Coyle/Morrow, The philosophical foundations of Environmental Law (2004:Hart)
•    Dobson, Green political thought (3rd Ed) (2000:Routledge)
•    Gillespie, International Environmental Law Policy and Ethics (1997 Oxford)
•    Hawke, Environmental policy: implementation and enforcement (2002: Ashgate)
•    Hilson, Regulating pollution – A UK and EC perspective (2000 Hart)
•    Jordan et al (eds), ‘New’ Instruments of Environmental Governance (2003 Frank Cass) Selected other key general, EU and international materials:

Selected EU reference works::
•    Krämer, EC Environmental Law (7thedn) (2011: Sweet and Maxwell).
•    Davies, EU Environmental Law  (2004: Ashgate)
•    Jans, European Environmental Law (3rd edn), (2008: Europa Law Publishing)
•    Krämer, Casebook on EU Environmental Law, (2002: Hart Publishing)
•    Grant et al (eds), The effectiveness of EU environmental policy (2000: Macmillan)
•    Hedemann-Robinson, Enforcement of European Union Environmental Law (2007 Routledge-Cavendish)
•    McCormick, Environmental policy in the EU (2001 Palgrave)
•    Sands and Galizzi, Documents in EC Environmental Law (2nd Ed. 2006, Cambridge)

Where highly specialised subject areas are concerned students shall be referred as appropriate to other library texts and articles for further reading. Further references for reading on international environmental law may be found in chapter 1 of Sands’ textbook.

Journals

The University Library subscribes to a number of specialist national and international environmental law journals. Please note that several articles are available for inspection online via the Library’s electronic journal catalogue link ‘LawLinks’. Principal journals providing comment on international environmental legal developments and issues include the following:
American Journal of International Law
Colorado Journal of International Law and Policy
Ecology Law Quarterly
Environmental Law and Policy
Environmental Liability
European Environmental Law Review
European Energy and Environmental Law Review
European Journal of International Law
Fordham Environmental Law Journal and Law Review
Georgetown International Environmental Law Review
International and Comparative Law Quarterly
International Trade Law and Regulation  (contains a number of articles on the relationship between international trade and environmental protection).
Journal of Environmental Law
Review of European Community and International Environmental Law
Yearbook of European Environmental Law
Yearbook of International Environmental Law

Internet sources

A wealth of important official international documents on environmental policy and law is availably free on the internet. Definitive information on international legal developments are available on the principal official sites of relevant international organizations, including the United Nations (Environment Programme), World Trade Organisation, European Union and Council of Europe.

International internet sites:

UNITED NATIONS:
http://www.un.org  – general
http://unep.net  – United Nations Environment Network main portal

WORLD TRADE ORGANISATION
http://www.wto.org/ – World Trade Organisation

INTERNATIONAL MARITIME ORGANISATION
http://www.imo.org/

FOOD AND AGRICULTURAL ORGANISATION
http://www.fao.org/

ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT
http://www.oecd.org/

European internet sites:
The internet sites of the EU and Council of Europe are of particular interest.

EUROPEAN UNION
Europa – The European Union’s official web-site: http://europa.eu/
This is the gateway to a vast reserve of information on the EU. Apart from full texts of the EU’s founding treaties and secondary legislation, it is possible to access press releases, consultation documents such as green papers and white papers, statistics, latest developments and links to the individual Directorates of the Commission. Links are also provided to the homepages of all the EU political and judicial institutions, which are also referred to below.

European Commission: The homepage of the Environment Directorate General of the European Commission (DG ENV), which provides up to date information on all the EU’s current environmental activities, is at: http://ec.europa.eu/dgs/environment/index_en.htm
The European Commission has a number of key roles with respect to environmental policy at EU level. The Commission has a significant legislative role, in being the principal institution responsible for proposing specific legislative initiatives on environmental protection. In also has key powers in overseeing the correct implementation of EU environmental law by EU Member States. In addition, alongside EU Member States, it has powers to act as representative of the EU in negotiations with respect to the development of international environmental policy.
Council of the EU: The Council of the EU’s official website is: http://www.consilium.europa.eu/showPage.ASP?lang=en
In environmental policy matters, the Council of the EU (also known as the Council of Ministers) shares legislative power with the Council of the EU. The EP’s site provides a useful insight into the workings of the EU legislative machine, affording free access to Council documents relating to the progress of proposed EU legislation.
European Parliament: The European Parliament’s official web-site is: http://www.europarl.europa.eu/
In environmental policy matters, the EP shares legislative power with the Council of the EU. The EP’s site provides a useful insight into the workings of the EU legislative machine, affording free access to parliamentary documents relating to the progress of proposed EU legislation.

European Court of Justice:  The ECJ’s website, which contains caselaw online since 1997 is: http://curia.europa.eu/
The entire body of ECJ caselaw may be accessed from the EU’s europa website via the EUR-Lex portal: http://europa.eu/documents/eur-lex/index_en.htm

COUNCIL OF EUROPE
The CoE is a European regional international organization with a wider membership than the EU. A number of regional environmental conventions have been agreed under its auspices. In addition, the 1950 European Convention on Human Rights and Fundamental Freedoms (ECHR), which is of increasing importance with respect to environmental protection issues in Europe, is a CoE agreement.
http://www.coe.int/ -general
http://www.coe.int/T/E/Human_rights/ – human rights (ECHR)

This is a seminar questions that may benefit for essay writing
Legal principles of International Environmental Lawstate sovereignty and responsibility

1. What are Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration?

2. Assess the significance of the following rulings of international judicial bodies in relation to the legal principle stipulated in Principle 21:
•    Trail Smelter Arbitration
1938 and 1941 Trail Smelter Arbitration (USA v Canada) before the Arbitral Tribunal American Journal of InternationalLaw 33 (1939) 182
http://www.jura.uni-muenchen.de/einrichtungen/ls/simma/tel/case8.htm

•    International Court of Justice’s 1996 Advisory Opinion in The Legality of the Threat or Use of Nuclear Weapons
ICJ rulings located at: http://www.icj-cij.org/icjwww/idecisions.htm

3. Assess the contribution of the International Court of Justice in its 1997 ruling on the dispute between Hungary and Slovakia in the case concerning the Gabcíkovo-Nagymaros Project.  (ICJ rulings located at: http://www.icj-cij.org/icjwww/idecisions.htm)

4. To what extent may states under international law exert controls extraterritorially with a view to protecting the environment?  How does this have a bearing on the development of international environmental law?

The following rulings of international judicial bodies cited below are of particular interest with regard to this area:
•    Bering Sea Fur Seals Arbitration (1893) Arbitral tribunal
American Jl of Int Law (1909)
•    Shrimp/Turtle Case(US – Import prohibitionof certain shrimp and shrimp products(1998) World Trade Organisation Appellate Body
38 ILM 118 (1999)
•    SS Lotus Case (France v Turkey) (1927) Permanent Court of International Justice PCIJ Series A, No 9
•    Case C-5/94 R. v. Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas [1996] ECR I-2553. European Court of Justice (ECJ).
(ECJ judgments may be inspected on the European Union’s ‘EUR-LEX’ website which is http://europa.eu/documents/eur-lex/index_en.htm (click the icon ‘case law section’ to access search engine). Judgments are also reported in the European Court Reports (ECR) and Common Market Law Reports (CMLR) which are stocked in the Library).

Seminar questions:
Implementation and enforcement of International Environmental Law

1. To what extent have the following entities roles to play in assisting in the enforcement of international environmental law?
•    States
•    International organisations
•    Non-state actors

2. Consider the hypothetical case of the  Chemical ‘X’ Control Treaty.

For a considerable period the United Nations Environment Programme (UNEP) has been keen to take action against the use of the chemical ‘X’ used in the manufacture of certain products. There have been widespread concerns expressed about the adverse impacts on public health and the environment due to the toxic properties of chemical ‘X’ when handled improperly, such as when a product containing chemical ‘X’ comes to the end of its use and is discarded without proper safe management with respect to either its recovery or disposal.   UNEP decide to draw up an international treaty requiring a phase-out of the import, export, manufacture, marketing, distribution and use of chemical ‘X’ in products by the end of 2014. Under the treaty Contracting States agree to reduce the amount of chemical ‘X’ produced and use within their respective territories by a specific tonnage each year. As from 2015, Contracting Parties will agree to the ban on import, export, manufacture, marketing, distribution and use of chemical ‘X’. There will be exceptions to the ban, but this is to be permitted only where it is proven to be scientifically necessary and an alternative to the purpose served by chemical ‘X’ in a current product is not available.

As legal adviser to UNEP, you are requested to specify what obligations should be contained in the treaty in order to ensure that UNEP may be in a position to monitor and hold to account ContractingStates’ timely and full implementation of the treaty.
(You may wish to refer to the UNEP Guidelines on Compliance with and Enforcement of Multilateral Environmental Agreements (MEAs) 2001 for guidance (see weblink above in seminar reading. You may also wish to refer to some existing international environmental treaties relating to the management and/or phasing out of certain toxic substances, such as the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, 1989 Basel Convention on Transboundary Movement of Hazardous Waste and 2001 Stockholm Convention on Persistent Organic Pollutants. All these agreements are freely available for inspection on the internet).

3. Outline the various mechanisms of dispute resolution that may be used to address disagreements over the interpretation and/or application of international environmental treaties. Which do you think are the most and least effective?

4. Read Articles 258-260 TFEU , the text of which is  reproduced overleaf. These provisions provide the European Commission (Articles 226 and 228(2)) and Member States of the European Union (Article 227) with power to bring a legal action against a Member State of the EU before the European Court of Justice on grounds that the Member State has infringed a legal obligation under the EC Treaty . Then read the Kouroupitos judgment of the European Court of Justice (Case C-387/97 Commission v Greece (Kouroupitos) [2000] ECR I-454 and weblink provided above in the seminar reading).  What was decided in Kouroupitos? What do you think the international community could learn from this case in terms of its impact on securing enforcement of international environmental norms?

Articles 258-260 TFEU

Art.258
If the Commission considers that a MemberState has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
If the State does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.

Art.259
A MemberState which considers that another MemberState has failed to fulfil an obligation under this Treaty may bring the matter before the Court of Justice.
Before a MemberState brings an action against another MemberState for an alleged infringement of an obligation under this Treaty, it shall bring the matter before the Commission.
The Commission shall deliver a reasoned opinion after each of the States concerned has been given the opportunity to submit its own case and its observations on the other party’s case both orally and in writing.
If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it, the absence of such opinion shall not prevent the matter from being brought before the Court of Justice.

Art.260
1. If the Court of Justice finds that a MemberState has failed to fulfil an obligation under this Treaty, the State shall be required to take the necessary measures to comply with the judgment of the Court of Justice.
2. If the Commission considers that the MemberState concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court of Justice after giving that State the opportunity to submit its observations. It shall specify the amount of the lump sum or penalty payment to be paid by the MemberState concerned which it considers appropriate in the circumstances.
If the Court finds that the MemberState concerned has not complied with its judgment it may impose a lump sum or penalty payment on it.
This procedure shall be without prejudice to Article 259.
3. When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the MemberState concerned which it considers appropriate in the circumstances.
If the Court finds that there is an infringement it may impose a lump sum or penalty payment on the MemberState concerned not exceeding the amount specified by the Commission. The payment shall take effect on the date set by the Court in its judgment.

the EU before the European Court of Justice on grounds that the Member State has infringed a legal obligation under the EC Treaty . Then read the Kouroupitos judgment of the European Court of Justice (Case C-387/97 Commission v Greece (Kouroupitos) [2000] ECR I-454 and weblink provided above in the seminar reading).  What was decided in Kouroupitos? What do you think the international community could learn from this case in terms of its impact on securing enforcement of international environmental norms?

Articles 258-260 TFEU

Art.258
If the Commission considers that a MemberState has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
If the State does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.

Art.259
A MemberState which considers that another MemberState has failed to fulfil an obligation under this Treaty may bring the matter before the Court of Justice.
Before a MemberState brings an action against another MemberState for an alleged infringement of an obligation under this Treaty, it shall bring the matter before the Commission.
The Commission shall deliver a reasoned opinion after each of the States concerned has been given the opportunity to submit its own case and its observations on the other party’s case both orally and in writing.
If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it, the absence of such opinion shall not prevent the matter from being brought before the Court of Justice.

Art.260
1. If the Court of Justice finds that a MemberState has failed to fulfil an obligation under this Treaty, the State shall be required to take the necessary measures to comply with the judgment of the Court of Justice.
2. If the Commission considers that the MemberState concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court of Justice after giving that State the opportunity to submit its observations. It shall specify the amount of the lump sum or penalty payment to be paid by the MemberState concerned which it considers appropriate in the circumstances.
If the Court finds that the MemberState concerned has not complied with its judgment it may impose a lump sum or penalty payment on it.
This procedure shall be without prejudice to Article 259.
3. When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the MemberState concerned which it considers appropriate in the circumstances.
If the Court finds that there is an infringement it may impose a lump sum or penalty payment on the MemberState concerned not exceeding the amount specified by the Commission. The payment shall take effect on the date set by the Court in its judgment.
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