Volume 04 Issue 01-2024
71
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
01
Pages:
71-76
SJIF
I
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FACTOR
(2021:
5.
705
)
(2022:
5.
705
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(2023:
6.
584
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OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
Today, due to the development of technology and industry and the increase of human needs for natural resources, as
a result of the unwise use of natural resources and the pollution and damage of the environment, there is an ecological
crisis. - considering the importance of the decisions issued by the courts established within the framework of
international and regional organizations in the regulation of ecologist disputes arising on environmental issues and
the importance of the decisions issued by the courts within the economic interests of the parties at the heart of the
disputes arising between the parties on environmental issues comes out.
KEYWORDS
Environment, natural resources, ecology, court decisions, UN, UN International Court of Justice, European Union
Court, environmental problems, environmental damage.
INTRODUCTION
Today, the environmental problem is considered one
of the most urgent problems for mankind, and the
dangers arising from it are even more terrible than
nuclear danger, and the whole world community is
worried.
In recent years, as a result of the development of
technology and industry and the increase of human
needs for natural resources, as well as improper use of
natural resources, illegal cross-border movement of
natural resources and environmental pollution, an
ecological crisis is observed and the world civilization is
in danger.
The importance of the role of judicial authorities in
protecting the environment and resolving issues of
responsibility for damage caused to it, and the
importance of the decisions issued by them, as well as
the fulfillment of obligations regarding the elimination
of the consequences of violations and the prevention
and elimination of possible damages in the future.
Research Article
THE ROLE AND IMPORTANCE OF COURTS IN ENVIRONMENTAL
PROTECTION
Submission Date:
January 16, 2024,
Accepted Date:
January 21, 2024,
Published Date:
January 26, 2024
Crossref doi:
https://doi.org/10.37547/ijlc/Volume04Issue01-13
Halikulov Komoliddin
Teacher, Department Of International Law And Human Rights Tashkent State University Of Law, Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 04 Issue 01-2024
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International Journal Of Law And Criminology
(ISSN
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2771-2214)
VOLUME
04
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Pages:
71-76
SJIF
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(2021:
5.
705
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5.
705
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(2023:
6.
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OCLC
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1121105677
Publisher:
Oscar Publishing Services
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ensuring the right to the environment is one of the
important issues.
In order to eliminate the above environmental
problems and prevent them in the future, in 1972, the
United Nations Conference on Environmental
Protection (also known as the Stockholm Conference),
i.e. the first international forum, was held, in which the
program for environmental problems and their
solution was announced [1]. The declaration adopted
during this conference contained
26 principles [2] aimed at protecting the environment.
Louis B. Sohn noted that the results of the conference
were a breakthrough for international environmental
law: "... now diplomats and international lawyers ... can
come to a consensus that meets all formal
requirements, their work has become easier than
before. Now, thanks to the adoption and
implementation of the principles of the declaration,
they are able to create a new environmental law in the
shortest possible time..."[2]
Although this declaration is of a recommendatory
nature, many of the provisions contained in this
document have subsequently been reflected in
international and national legal documents.
The United Nations, established in 1945, is considered
the most influential organization, and it works to
maintain international peace and security, develop
mutual cooperation between countries, respect and
protect human rights, and resolve disputes by peaceful
means.
We can highlight the International Court of the UN as
the most influential international judicial div in
solving problems arising in the field of environmental
protection.
According to paragraph 1 of Article 36 of the Statute of
the International Court of Justice, "The jurisdiction of
the Court includes all cases submitted by the parties
and all matters provided for in the Charter of the
United Nations Organization or in existing treaties and
conventions" [5].
According to Article 26, Clause 1 of the Statute of the
Court, an environmental chamber was established in
1993 for consideration of environmental disputes [6],
but this chamber has not been approached by states
for 13 years to resolve environmental disputes, and in
2006 about the fact that judges were not appointed to
this chamber in 2008, the chairman of the court,
Rosalin Higgins, said that "states consider international
environmental law to be a part of international law,
and therefore there is no need for a separate chamber
for environmental issues" [5].
IMPORTANCE OF DECISIONS ISSUED BY THE
INTERNATIONAL
COURT
OF
ENVIRONMENTAL
PROTECTION.
Turning to international judicial practice, in the case of
United Kingdom v. Iceland [7], within the case of the
Federal Republic of Germany v. Iceland [8], in 1948,
Iceland adopted the law "On Scientific Conservation of
Fisheries on the Continental Shelf" . According to him,
Iceland could create protected zones where fishing by
foreign countries is prohibited. In 1971, Iceland
extended its fishing jurisdiction to 50 nautical miles, as
a result of which Great Britain and Germany did not
agree, and on April and May, 1972, they filed lawsuits to
declare the unilateral expansion of Iceland's fishing
jurisdiction as contrary to international law. In its July
25, 1974 decision, the court reiterated that Iceland did
not have the right to unilaterally close areas outside
the 12-mile zone to German fishing vessels as agreed by
the two countries in the 1961 exchange of notes on
fishing vessels. Regarding the problem between the
Volume 04 Issue 01-2024
73
International Journal Of Law And Criminology
(ISSN
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VOLUME
04
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01
Pages:
71-76
SJIF
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(2021:
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5.
705
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6.
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OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
environmental and economic interests of the states,
the court emphasized that fish stocks should be used
wisely and that they are economically useful. In
addition, the court ordered the parties to monitor the
state of fish resources and jointly consider measures
for the conservation, development and rational use of
these resources, including the limitation of fishing and
the allocation of quotas [5].
According to Darya Boklan, the statute of the court
should not distinguish between the nature of disputes,
because every international dispute arises from not
one, but several types of international relations at the
same time, so it is not always possible to distinguish
only environmental disputes or economic disputes [ 5].
Turning to another international case law, Argentina v.
Uruguay regarding the granting of permission for the
construction and commissioning of a pulp mill on the
Uruguay River (Pulp Mills on the River Uruguay) [9],
Argentina alleges that the construction and
commissioning of two pulp mills on the Uruguay River
poses a risk of deterioration of water quality in the river
and that Argentina has breached its obligations under
Article 1 of the Uruguay River Charter [10] regarding
the prudent use of the river, as the State of Uruguay
disagrees with the measures taken to prevent
environmental pollution and accuses them of not
taking enough measures to prevent environmental
pollution. The Uruguayan state, in turn, emphasizes
that, based on Article 36 [10] of the Charter, the
necessary measures to prevent changes in the
ecological balance in the river, to combat pests and
other harmful factors, will be coordinated through the
Uruguay River Commission.
Before evaluating this disputed situation, the Court
focused on the Legality of the Threat or Use of Nuclear
Weapons, (Advisory Opinion, I.C.J. Reports 1996 (I), p.
242, para. 29) and stated that "the general obligation
of states to ensure that activities under their
jurisdiction and control do not harm the environment
of other states or territories outside national control is
now a part of international law [11].
Participants in the Uruguay River Charter are held liable
if it is proven that they did not act with due diligence
and did not take all necessary measures to ensure
compliance with the relevant regulations by public or
private entities under their jurisdiction.
In its decision of April 10, 2010, the court reiterated that
the parties must carry out an environmental
assessment to protect and preserve the aquatic
environment when planning activities that may cause
transboundary damage in order to properly fulfill their
obligations under Articles 41 (a) and (b) of the Uruguay
River Charter. He also noted that if the production
activity can have a significant negative impact on the
environment, in particular, on the common natural
resource, it can be considered as an obligation in
accordance with international law. The court also
emphasized that an environmental assessment should
be conducted before the start of economic activity,
and that its impact on the environment should be
continuously monitored throughout its activity. Thus,
in its decision, the court emphasized the need to be
careful not to cause transboundary damage to the
environment during the implementation of economic
activity, and measures to prevent environmental
damage should be implemented both before starting
economic activity and during its implementation [5 ].
From the court decisions, we can see that one of the
main reasons for the origin of environmental disputes
between countries is the type of economic activity and
that there are aspects of mutual dependence between
them. and emphasized the need to use economic
means to prevent them from increasing.
Volume 04 Issue 01-2024
74
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
01
Pages:
71-76
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
THE PRACTICE OF THE COURT OF JUSTICE OF THE
EUROPEAN UNION IN THE FIELD OF ENVIRONMENTAL
PROTECTION.
If we pay attention to regional organizations for
environmental protection, the European Union is the
largest
international
economic
and
political
organization in the world, it has institutions that
determine the social and economic directions of its
member states, so within the framework of this
organization, the normative aimed at protecting the
environment Article 191 paragraph 1 of the Treaty on
the Functioning of the European Union states in the
legal document that "preserving, protecting and
improving the quality of the environment, protecting
human health, rational and reasonable use of natural
resources, solving regional or global environmental
problems, in particular against climate change we can
see that the norms "promoting measures aimed at
fighting in the international arena" [12] have been
rewritten.
According to Ludwig Krmer, "higher environmental
standards of environmental protection should be
established within the European Union, because high-
level protection measures are better defined and
applied at the level of the European Union than the
member states" [13].
If we pay attention to the regulatory legal documents
of the European Union aimed at protecting the
environment, according to Article 2, Clause "a" of
Directive 2004/35/EC, "damage to the environment is
damage to protected species and natural habitats, i.e.
habitats or any damage adversely affecting the
achievement and maintenance of a favorable
conservation status" [14] and Article 15 of Directive
2008/98/EC states that "if the waste is transferred from
the original producer or owner for pre-treatment to
one of the natural or legal persons, does not exempt
from responsibility for full recovery or destruction" [15]
we can see the return of the norms, which means that
the disposal of waste should be covered by the
previous owners or the manufacturer of the product
from which this waste originated.
Article 260 of the Treaty on the Functioning of the
European Union stipulates the norms that "if it is
determined that the member states have not fulfilled
their obligations under the treaties, then that member
state must take the necessary measures for the
execution of the decisions issued by the Court of the
European Union" [12].
If we pay attention to the analysis of court decisions on
how important the role of case law is in the formation
of the concept of environmental protection in the
decisions of the European Union Court and cases of
violations of the norms in regulatory legal documents
by member states, as well as the decisions issued by
the court on their application and interpretation, the
European Union case No.
C-188/07 (No. Case C-188/07 Commune de Mesquer v
Total France SA and Total International Ltd) [16]
considered by the court, the Italian company Enel
purchased fuel oil (hydrocarbon) from Total France SA
signs a purchase agreement, and Enel agrees with
Total International Ltd to supply this product, On
December 12, 1999, the sinking of an oil tanker off the
Breton coast of France caused damage to the
environment, and the question of who should pay for
the damage caused to the environment in this case was
answered by the Grand Chamber of the European
Court of Justice on June 24, 2008, i.e. He points out
that fuel oil (hydrocarbon) is sold economically and
does not require pretreatment, fuel oil mixes with
water and sand to form waste and cannot be used
without further treatment.
Volume 04 Issue 01-2024
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In its decision, the court states that the owner of the
ship (Total International Ltd) is a waste, and as a result
of his actions, fuel oil (hydrocarbon) turned into waste
and caused damage to the environment. Also, it is
possible to consider Total France SA as the previous
owner of the waste, but it is necessary to assess the
extent to which Total France SA contributed to
environmental pollution as a result of the actions of
Total France SA, and to impose responsibility on Total
France SA under national law, the company's actions to
prevent this situation, i.e. the company's fuel oil
(hydrocarbon ) it is necessary to evaluate the actions
of the ship's condition during transportation.
Commercial Court of St. Nazaire and Courts of Appeal
in Rennes Despite the environmental damage caused
by Total International Ltd, the Commune de Mesquer,
which brought a case against Total International Ltd,
refused to settle the claims, as France did not have the
necessary provisions to allow Total International Ltd to
be held liable under French environmental law at the
time to compensate for the environmental damage.
except for unclaimable human health, property and
other damages.
On September 25, 2012, the French Court of Cassation
ruled that Total International Ltd was liable for
environmental damage caused by its actions [17].
It should be noted that, until the case was reversed, in
France, environmental damage was considered only as
a cause of damage to human health or property. Until
this case was considered in France, damage to the
environment from a civil point of view was not
considered independently, but only as a cause of
damage to human health or property. The decision
taken by the French Court of Cassation is dependent on
the publication of Law No. 2016-1087 of August 8, 2016,
which introduces the concept of "direct damage to the
environment" ("prejudice ecologique") [17].
To conclude from the above, the decisions issued by
the courts are of great importance in the interpretation
of the norms of international and regional regulatory
legal documents, in setting standards and in their
application in the national legislation of the states
aimed at environmental protection, but the disputes
that arise on environmental issues in judicial practice
Considering that it is not only an environmental
dispute, but also includes the ecological and economic
interests of the parties (states and individuals), some
suggestions can be made:
Proposal: to establish specialized courts on
environmental issues under international and regional
courts in order to determine the damage caused by
such disputes in the future and to issue a fair decision
in the hearing of disputes related to environmental
damage and have high knowledge and experience in
the field of international environmental law should
consist of individuals.
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