The Contribution of the International Court of Justice to the Development of International Environmental Law: A Contemporary Assessment
The article provides a detailed and up-to-date assessment of the contribution of the International Court of Justice (ICJ) to the development of International Environmental Law (IEL), including the potential in this respect of the cases currently pending before the Court. The author argues that the ICJ's contribution to IEL can be organized in two main waves of cases. The legacy of the first wave, which covered essentially the Corfu Channel and the Nuclear Tests cases, as well as an important obiter dictum made in the Barcelona Traction case, was the confirmation of previous case-law on transboundary damages as well as the introduction of the concept of obligations erga omnes, potentially applicable to some environmental norms. The second wave, constituted mainly by the Nauru and the Gabcikovo-Nagymaros cases, the Advisory Opinion on the Legality of Nuclear Weapons, and a number of separate/dissenting opinions, was important in consolidating the previous achievements and pointing to a number of interconnections between IEL and other sub-fields of international law such as boundary delimitation and international humanitarian law. In this context, the Pulp Mills and Aerial Herbicides cases, currently pending before the ICJ, could potentially pave the way for a third wave, providing much needed clarifications of issues such as the specific contents of IEL as well as the hierarchy and enforceability of its principles.