La Cour internationale de justice et la problématique des droits de l'homme

SECTION II : CONTRIBUTION A the EMERGENCE OF NEW

FIELDS OF INTERNATIONAL LAW

The international law is a matter which is in perpetual evolution because of its effectivity, but especially of the topicality of which it is the object. The daily practice of the international law allowed the emergence of the new fields of international law to know the right of the environment (paragraphe1) and that of health (paragraphe2). The International Court of Justice by its jurisprudence deeply consolidated the emergence of these fields.

Paragraph 1 : Consolidation of the right to the environment

We will see initially the dedication of the international law of the environment (A), before examining the intervention of the environmental matter CIJ (B).

A- Dedication of the international law of the environment

The international law of the environment is the whole of the international rules and interns aiming at the environmental protection. The environmental protection is, it should be raised a rather recent concern. Indeed while passing by STOCHKOLM in 1972, RIO in 1992, and many other conventions even more recent, the international community is worried more and more by the safeguarding of the environment. From where the interest to found international institutions as well intern as external, to work out mechanisms of very serious protection to preserve fauna, the flora, the surface, water, the ground, and the basement and all the ecosystems existing.

In order to reinforce the environmental protection, the International Court of Justice in the opinion on the nuclear weapons established the existence of a right of the usual environment, which constitutes a capital fact : « the general obligation which have the States to take care that the activities carried on within the limits of their jurisdiction or under their control respect the environment in other States or in zones concerned with no national jurisdiction now forms part of the body of rules of the international law of the environment »^153(*). The Court adds that them « States must take account of the ecological considerations today when they decide what necessary is proportioned in the continuation of legitimate military objectives »^154(*).

The Court then developed a very evolutionary reasoning tending with the protection of the right to the environment in the Gabcikovo-Nagimaros business of which the judgment was handed down on September 25, 1997. The essential problem that this stop presents is that to determine if a country can, by calling upon reasons for environmental protection, to withdraw itself from the effect of a treaty.

B- The intervention of the environmental matter CIJ

The Court indeed, makes a point of raising that new standards of the right of the environment, recently appeared are relevant for the execution of the treaty binding the parts to the litigation. These standards impose on the parts, by discharging their obligations to take care that the quality of water of the Danube is not compromised so that the nature conservancy is assured. The Court estimates that while inserting in the treaty these evolutionary provisions, the parts recognized the need for possibly adapting the project.

Consequently, the treaty is not a fixed instrument and is likely to adapt to new standards of the international law of the environment. The conscience that the environment is vulnerable and recognition of what it is continuously necessary to evaluate the ecological risks continued more and more in the years which followed the conclusion of the treaty. Recognition that the parts agree on the need for worrying seriously about the environment and to take measurements which are essential.

With regard to the legal consequences of the stop, the Court does not lose sight of the fact that, in the field of the vigilance, environmental protection and prevention impose themselves because of the often irresistible character of the damage caused on the environment and the limits inherent in the mechanism even of repair of this type of damage. New standards and requirements were developed, which were stated in a great number of instruments during two last decades, it acts of the principle pollutant payer of the principle of prevention, the principle of precaution or that of participation.

The Court estimates that these new standards must be taken in suitably appreciated consideration and these new requirements, not only when the States consider new activities, but also when they engaged in the past. For purposes of this species, that means that the parts would have together, to again examine the effects on the environment of the exploitation of the power station of Gabcikovo. In particular, they must find a solution satisfactory with regard to the volume of water to be poured in the bed of the Danube and the arms located on both sides of the river.

The individual opinion of Weeramantry judge is very relevant as for the emergence of the right of the environment. Indeed, this one tackles in its opinion three questions relating to certain aspects of the right of the environment: the principle of the development which reconciles the rival requirements of the development and the environmental protection, and advisability of being useful itself of an applicable legal principle inter partes as the estoppel to solve problems which present a character erga omnes, like the damage caused with the environment.

* ¹⁵³CIJ, admissibility of the use or the threat of the nuclear weapons, advisory opinion of July 8, 1996, Rec., 1996, § 29.

* ¹⁵⁴Ibidem, §30. In this context, the Court quotes, it to approve, the principle 24 of the Declaration of Rio.