CHAPTER 20
ENVIRONMENTAL LAW
CASES IN THIS CHAPTER
Pulp Mills on the River Uruguay (Argentina v. Uruguay)
European Communities—Measures Affecting Asbestos & Asbestos-Containing Products
United States—Import Prohibition of Certain Shrimp and Shrimp Products
Judgment of February 23, 1988
Skeena River Fishery: Canada
TEACHING SUMMARY
In most areas of regulation, the United States first enacted national legislation and later
considered the global ramifications. In the area of the environment, however, international
concerns preceded domestic concerns. Indeed, the environment is one issue that knows no
national boundaries. Individual countries can enact environmental standards within their
boundaries, but air, waters, flora, and fauna all move from country to country, ocean to ocean
with regard to such political subdivisions and laws. For example, the U.S. and China have a
majority of their land masses in the same latitudes. As a result, air pollution in the U.S. may be
carried into China. Similarly, polluted air from other lands may find its way into the U.S.,
notwithstanding our domestic laws ensuring air quality or pollution control. Consequently, the
environment is an issue properly requiring global cooperation, and a number of international
treaties and standards regarding the environment have developed. These include the ISO
standards and those of the European Community. In other instances, existing understandings
under WTO and GATT have been applied to environmental issues. Furthermore, strict
environmental legislation can lead to a competitive disadvantage for countries, as compliance
with domestic regulations will often make its products more expensive. Indeed, recognizing the
symbiotic relationship between environmental regulations and competition, some countries use
environmental laws not so much as a mechanism to protect the environment than as a
mechanism to limit foreign competition (making them environmentally disguised trade barriers).
CASE QUESTIONS AND ANSWERS
Pulp Mills on the River Uruguay (Argentina v. Uruguay
1. The court found that Uruguay violated its procedural duties to provide notice and seek
agreement with Argentina before launching on the project, and then it argued that it was
disproportionate to dismantle the pulp mills as a remedy for its violation. Did Uruguay then benefit
from proceeding with construction without seeking consent? How might Argentina have prevented
this from happening?
Chapter 20: Environmental Law
2. Was Argentina able to show that Uruguay’s new mills were polluting in violation of the
treaty? What would have happened if Argentina had been able to prove that?
3. The court imposed a duty to cooperate in monitoring ongoing pollution. Did such a duty not
already exist? What do you think will happen as a result of this future monitoring?
European Communities—Measures Affecting Asbestos & Asbestos-Containing Products
1. Was there any question that France’s ban would have a discriminatory impact on
Canadian asbestos products?
2. If France’s ban had been based on grounds other than protecting the health of French
residents, would it have been upheld? Do nations have greater discretion to discriminate
against foreign products if they base the discrimination on health concerns?
3. How would the Appellate Body have been perceived if it compelled France to accept
products that its democratically elected government deemed unhealthy? Do you think
this judicial rule might be partially based on the tribunal’s desire to preserve its
legitimacy?
Answer: This question calls for student opinion.
United States—Import Prohibition of Certain Shrimp and Shrimp Products
1. The United States had to change its original regulation regarding the preservation of
turtles. How does this compare to the treatment given to France’s law on asbestos? Do
nations have more discretion in discriminating to protect human health within their borders
than animal species around the world?
Chapter 20: Environmental Law
2. What changes to the rules made them acceptable “discrimination”?
3. Can a large market such as the United States change environmental policy throughout the
world using measures like this? Why? Is it antidemocratic to have the United States
impose its policies on other nations through its bargaining power?
Judgment of February 23, 1988
1. What is the major difference between this case and the Pulp Mills on the River Uruguay
case?
2. How did the Austrian court justify getting jurisdiction over a matter over 100 kilometers in
the territory of another country?
3. If an Austrian court issues a judgment and the Czech party refuses to comply, how do you
think that the plaintiff will seek to enforce the judgment?
Skeena River Fishery: Canada
Chapter 20: Environmental Law
1. How is this approach different from that taken by Austrian plaintiffs against Czechs in the
Judgment case? Does the international treaty make transnational environmental
protection easier?
2. Do the complainants in Skeena River Fishery have to prove financial damage as a result
of Canada’s alleged non-enforcement? Do the plaintiffs in the Austrian Judgment case
have to prove such damages? What was the basis for the determination that the NCSA
stated an actionable claim?
3. How will the Canadian government’s spending priorities factor into this decision? Should
the Secretariat be able to order Canada to spend money on fisheries enforcement rather
than unemployment insurance? Can the Secretariat do that?
ANSWERS TO QUESTIONS AND CASE PROBLEMS
1. Answer: If a private cause of action had existed in Czechoslovakia, the court might
have declined to hear the case on the grounds of forum non conveniens (assuming that there was
2. Answer: Neither money damage awards nor injunctive relief are likely to be
use.
Chapter 20: Environmental Law
3. Answer: Both economic and political considerations are important. If the officer’s
political views or notions of social responsibility tend to favor conservation of the environment, she
may be disinclined to make the investment on those grounds alone. To refuse to make an
investment in furtherance of one’s own political views rather than because of the interests of the
4. Answer: This question explores the conflicting legal and political positions in this
area. On the one hand, a sovereign nation has a right to democratically determine how to use the
5. Answer: Assume that Livy, a GATT member, is not also a signatory to the Montreal
Protocol, or has renounced its intent to abide by those treaty provisions. Article III would only
prohibit the U.S. from discrimination based on the production or processing method, or from
Chapter 20: Environmental Law
6. Answer: Based on the GATT Tuna from Mexico decision, the Kingdom of
MANAGERIAL IMPLICATIONS
Students may address this question in terms of legal liabilities and future ramifications. With
regard to the former, legal liabilities, there are domestic and international concerns. In terms of
domestic law, if the Bishopric of Saul has virtually no environmental laws, then there are no
causes of action available under Saul’s law by which Ortiz-Hartman (OH) can be held liable. This
could change if OH seeks membership in the WTO and subscribes to GATT principles: eventually,
GATT may begin to re-think its view that lower environmental standards constitute a legitimate
comparative advantage for global trade, or to rethink cases like the Mexican tuna/Pacific dolphin
controversy and decide that some import distinctions based on production/processing methods
may be justified.
With regard to international law, students should recognize that Saul is violating the law of nations
(Stockholm Declaration, Principle 21/Rio Declaration, Principle 2) by allowing those under its
control to cause environmental harm beyond Saul’s borders. General tort principles of negligence,
nuisance, or trespass might apply. Nevertheless, collecting damages for such acts may range
from unlikely to impossible if OH does not have assets in those neighboring countries.
In the long term, the prognosis is somewhat less favorable: students should acknowledge the
influence of ISO standards as environmental management directives. These provide industry with
benchmarks against which to measure environmental performance. Thus, if a company expects to
export to the EU, it will likely find that they cannot do business in the EU unless it conforms to
these standards. Students should also recognize that there is a tension between these standards
and WTO and GATT principles.
ETHICAL CONSIDERATIONS
This consideration calls for student opinion. In reaching their conclusions, students may be
asked whether Chevron’s response to the litigation promoted its self-interest to the greatest
degree possible as set forth in ethical egoism, whether Texaco’s conduct in Ecuador was ethical
based upon the time and place of its occurrence and whether Texaco’s conduct and Chevron’s
litigation strategy produced the greatest overall good for affected persons as set forth in
utilitarianism. From a deontological standpoint, it may be asked whether Chevron is setting an
example by which other multinational corporations may conduct their operations in the
developing world whether Texaco’s conduct treated Ecuadorians as means to the end of
exploiting oil and gas resources and whether Chevron’s decision to vigorously defend the
Ecuadorian litigation and resist settlement is the fairest and most equitable resolution as
anticipated by contractarianism.
use.