Cymie R. Payne

ICJ Halts Antarctic Whaling – Japan Starts Again

The International Court of Justice (ICJ) judgment in Whaling in the Antarctic , a dispute brought by Australia against Japan, found that Japan had violated the International Convention for the Regulation of Whaling (ICRW) moratoria on all commercial whaling and the use of factory ships to process whales, and also the prohibition on whaling in the Southern Ocean Sanctuary. In the course of analyzing whether special permits issued by Japan qualified for the scientific whaling exemption under Article VIII ICRW, the Court benefited from a more robust scientific fact-finding process than at times in the past. The judgment emphasized the mutual obligations of this multilateral agreement by taking the view that the provisions of the ICRW’s scientific whaling exemptions are neither self-judging nor subject to a ‘margin of appreciation’ in favour of a state party claiming the exemption. The case was driven by conflicting attitudes towards commercial whaling, and also towards global common spaces. The ICJ’s decision and Japan’s response indicate the limits of the ICRW in resolving those differences.

Public Participation and Norm Formation for Risky Technology: Adaptive Governance of Solar-Radiation Management

As the international community comes to grips with climate destabilization, it has begun to evaluate potentially risky technologies, such as geoengineering, to mitigate the effects of warming. The geoengineering technology known as solar-radiation management ( SRM ) poses many risks. There is also great uncertainty about whether society will decide to deploy SRM in the future. Managing these risks and uncertainties requires adaptive governance that will be responsive to new knowledge and changing social systems. We analyse the dimensions of public participation and norm-formation mechanisms of current SRM -related legal regimes and governance proposals. We find that there is a need for the social sciences, including legal and governance scholars, to engage with the theoretical and pragmatic challenges of engaging diverse and vulnerable publics fairly and efficiently.

Balancing the risks: Choosing climate alternatives

Very aggressive reductions in greenhouse gas emissions are needed over the next ten years to avoid a “planet on fire.” Current sub-national, national and international policy assumes that carbon sequestration, biofuels, nuclear power, ocean fertilization, atmospheric aerosols, and other such technologies, which heretofore have been considered too novel or too dangerous to use, will have to be deployed at large scale, globally. Moving forward with promising technologies that might preserve us from the consequences of global warming will be difficult because they also pose potential hazards, promise uncertain benefits, and in some cases are already burdened with restrictive legislation and poor public image. The lack of a rational process of risk assessment and public decision making is likely to lead to a poor longterm outcome. Moreover, the standard administrative and political processes used to assess such risks can take years, time that we do not have. Principled and practical policymaking demand citizens participate in the decision to develop and use these novel technologies. Environmental assessment, horizon scanning, and new research on human and organizational factors suggest techniques to improve technology development decisions.

Environmental Impact Assessment as a Duty Under International Law: The International Court of Justice Judgment on Pulp Mills on the River Uruguay

On April 20, 2010, the International Court of Justice (ICJ) announced its judgment in a dispute between Argentina and Uruguay concerning Uruguay’s authorization for pulp mills on the banks of the Uruguay River, which forms the international boundary between the two countries. This judgment is a significant step forward in the ICJ’s jurisprudence on environmental law and on shared watercourses. The Court recognized environmental impact assessment as a practice that has become an obligation of general international law in these situations.