Common use of Sources of law Clause in Contracts

Sources of law. The use of international criminal law to address serious environmental harm is relatively untraversed territory. There is no specific or comprehensive regime that directly applies criminal sanctions to environmental harm under international law. Consequently, this analysis surveys the existing legal framework of the ICC for its applicability to environmental harm. Consistent with the approach within the ICC, the hierarchy of sources of law set out in article 21 of the Rome Statute is generally the framework for the assessment, albeit with complementary references to additional legal sources where relevant for illustrative purposes.41 The framework set out in article 21 applies to both substantive and procedural aspects of the Rome Statute and accompanying instruments such as the Rules of Procedure and Evidence. In accordance with article 21(1)(a), the analysis looks first to the Rome Statute of the ICC, the Rules of Procedure and Evidence, and the Elements of Crimes.42 As part of the framework, it includes the Regulations of the Court, which are adopted by the Judges of the Court to govern its “routine functioning” pursuant to article 52 of the Statute.43 environment must be achieved primarily through other measures, criminal law has an important part to play in protecting the environment.”); United Nations Economic and Social Council, Resolution 1993/28, “The role of criminal law in the protection of the environment”, Annex: Conclusions of the Seminar on the Policy of Criminal Law in the Protection of Nature and the Environment in a European Perspective, held at Lauchhammer, Germany, from 25 to 29 April 1992, para.3 (“In addition, criminal law should play a flanking and supporting and, where appropriate, independent role”). 40 Xxxxx Xxxxxxxxxxxx, “The Role of French Environmental Associations in Civil Liability for Environmental Harm: Courtesy of Xxxxx”, Journal of Environmental Law 21:1 (2009), 87-112, p.95 (noting that environmental associations reported preferring the use of civil proceedings to criminal proceedings due to the more amenable standards and burdens in the civil jurisdiction.). 41 Rome Statute of the International Criminal Court, adopted on 17 July 1998 (entry into force: 1 July 2002), 2187 UNTS 90 (“Rome Statute”). 42 Rome Statute, article 21(1)(a). It should be noted that the Elements of Crimes are not binding, but instead designed to “assist the Court in the interpretation and application of articles 6 (genocide), 7 (crimes against humanity) and 8 (war crimes)”; Rome Statute, article 9. Given its specific focus on the Elements of Crimes, article 9 appears to be lex specialis as compared to article 21(1); Xxxx Xxxxxxx et. al., Elements of Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press (2004), p.8. See also Xxxxxxx Xxxxx, “Chapter 18: Article 21 and the Hierarchy of Sources of Law before the ICC”, in Xxxxxxx Xxxxx, The Law and Practice of the International Criminal Court, (Oxford University Press, 2015) (“Xxxxx 2015”), p.411. 43 Rome Statute, article 52. As to the significance of the Regulations, see Xxxxx Xxxx, ‘The Procedural Texts of the International Criminal Court’, (2007) 5 Journal of International Criminal Justice, p.537. international law, including customary international law.44 This adheres to the approach mandated under article 21(1)(b) of the Rome Statute. Statutes and rules of other international courts and quasi-judicial bodies, as well as United Nations Security Council, and General Assembly resolutions, are discussed where relevant for the interpretation of the ICC’s instruments and customary international law.45 Article 21(1)(b) makes explicit reference to the law of armed conflict.46 The law of armed conflict is also known as international humanitarian law, and the law of war, and consists of “a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.”47 In protecting non-combatants and restricting the means and methods of warfare, international humanitarian law also provides a measure of protection against environmental harm, both directly and indirectly.48 In addition to the express prohibitions against environmental harm, the ICJ has confirmed that the underlying principles of necessity and proportionality require due regard for the environmental impact of military action, stating that “respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality”.49

Sources of law. The use of international criminal law to address serious environmental harm is relatively untraversed territory. There is no specific or comprehensive regime that directly applies criminal sanctions to environmental harm under international law. Consequently, this analysis surveys the existing legal framework of the ICC for its applicability to environmental harm. Consistent with the approach within the ICC, the hierarchy of sources of law set out in article 21 of the Rome Statute is generally the framework for the assessment, albeit with complementary references to additional legal sources where relevant for illustrative purposes.41 The framework set out in article 21 applies to both substantive and procedural aspects of the Rome Statute and accompanying instruments such as the Rules of Procedure and Evidence. In accordance with article 21(1)(a), the analysis looks first to the Rome Statute of the ICC, the Rules of Procedure and Evidence, and the Elements of Crimes.42 As part of the framework, it includes the Regulations of the Court, which are adopted by the Judges of the Court to govern its “routine functioning” pursuant to article 52 of the Statute.43 environment must be achieved primarily through other measures, criminal law has an important part to play in protecting the environment.”); United Nations Economic and Social Council, Resolution 1993/28, “The role of criminal law in the protection of the environment”, Annex: Conclusions of the Seminar on the Policy of Criminal Law in the Protection of Nature and the Environment in a European Perspective, held at Lauchhammer, Germany, from 25 to 29 April 1992, para.3 (“In addition, criminal law should play a flanking and supporting and, where appropriate, independent role”). 40 Xxxxx Xxxxxxxxxxxx, “The Role of French Environmental Associations in Civil Liability for Environmental Harm: Courtesy of Xxxxx”, Journal of Environmental Law 21:1 (2009), 87-112, p.95 (noting that environmental associations reported preferring the use of civil proceedings to criminal proceedings due to the more amenable standards and burdens in the civil jurisdiction.). 41 Rome Statute of the International Criminal Court, adopted on 17 July 1998 (entry into force: 1 July 2002), 2187 UNTS 90 (“Rome Statute”). 42 Rome Statute, article 21(1)(a). It should be noted that the Elements of Crimes are not binding, but instead designed to “assist the Court in the interpretation and application of articles 6 (genocide), 7 (crimes against humanity) and 8 (war crimes)”; Rome Statute, article 9. Given its specific focus on the Elements of Crimes, article 9 appears to be lex specialis as compared to article 21(1); Xxxx Xxxxxxx et. al., Elements of Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press (2004), p.8. See also Xxxxxxx Xxxxx, “Chapter 18: Article 21 and the Hierarchy of Sources of Law before the ICC”, in Xxxxxxx Xxxxx, The Law and Practice of the International Criminal Court, (Oxford University Press, 2015) (“Xxxxx 2015”), p.411. 43 Rome Statute, article 52. As to the significance of the Regulations, see Xxxxx Xxxx, ‘The Procedural Texts of the International Criminal Court’, (2007) 5 Journal of International Criminal Justice, p.537. As a secondary source, the analysis looks to applicable treaties and rules and principles of international law, including customary international law.44 This adheres to the approach mandated under article 21(1)(b) of the Rome Statute. Statutes and rules of other international courts and quasi-judicial bodies, as well as United Nations Security Council, and General Assembly resolutions, are discussed where relevant for the interpretation of the ICC’s instruments and customary international law.45 Article 21(1)(b) makes explicit reference to the law of armed conflict.46 The law of armed conflict is also known as international humanitarian law, and the law of war, and consists of “a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.”47 In protecting non-combatants and restricting the means and methods of warfare, international humanitarian law also provides a measure of protection against environmental harm, both directly and indirectly.48 In addition to the express prohibitions against environmental harm, the ICJ has confirmed that the underlying principles of necessity and proportionality require due regard for the environmental impact of military action, stating that “respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality”.49proportionality”.49 44 Customary international law can be described as binding principles based on general practice accepted as law amongst the actors in public international law. It consists of state practice and opinio juris, the latter of which refers to the “subjective” or “psychological” acceptance of a sense of legal obligation. See Statute of the International Court of Justice, Article 38; International Court of Justice, The North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment of 20 February 1969, I.C.J Reports 1969, p. 4, para. 77 (“[n]ot only must the acts concerned amount to a settled practice, but they must also be such, or to be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of opinio juris sive necessitates.”).