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TUGAS HUKUM INTERNASIONAL II

DOSEN: PROF. DR. MARSUDI TRIATMODJO, S.H, L.LM

Oleh :

Rieska Ayu Bella Pratiwi 19/441888/HK/22050

Fakultas Hukum

Universitas Gadjah Mada

2020
1. The Trail Smelter 1941

The United States took Canada to court for violating their sovereignty as a nation
and the resulting decision of the court established fundamental principles for international
environmental law. In 1935 a Canadian based corporation (defendant) owned a smelter
plant which emitted hazardous fumes (sulfur dioxide) that caused damage to plant life,
forest trees, soil, and crop yields accross the border in Washington State in the United
States (plaintiff). Here a rural community of farmers existed who claimed damages from
the waste emitted by the smelter. The United States charged Canada for these injuries and
the case was referred to the International Joint Commission, a bilateral tribunal that
oversees issues regarding the two countries. The decision made by the Tribunal
established the concept of Trans Boundary Harm and the principle of the “polluter pays”
to ensure sovereignty.

Response for this case :

This case being preliminary history for the principle of responsibility in crossing
national borders. In its first decision, 1938, the Tribunal concluded that harm had
occurred between 1932 and 1937 and ordered the payment of an indemnity of $78,000 as
the ‘complete and final indemnity and compensation for all damage which occurred
between such dates’. The Tribunal’s second decision (1941), The Tribunal concluded,
with respect to future harm, that: no State has the right to use or permit the use of its
territory in such a manner as to cause injury by fumes in or to the territory of another or
the properties or persons therein, when the case is of serious consequence and the injury
is established by clear and convincing evidence. I agree with the court's decision because
all countries must be able to respect the rights of other countries, including environmental
matters. Or in other ways, Canada indeed must be responsible both materially and
morally. Then, this decision should be reference if at any time there are similar cases. So,
this case has contributed to the "Principles of Paying Polluter" and then has become
jurisprudence for judges to decide on air pollution disputes.
Source :

https://intlpollution.commons.gc.cuny.edu/an-international-environmental-law-case-study-the-
trail-smelter-arbitration/

https://www.informea.org/en/court-decision/trail-smelter-case-united-states-v-canada

https://www.ecolex.org/details/court-decision/trail-smelter-case-united-states-v-canada-
b86fd680-d04e-4245-a1c2-44a1191170c0/
2. The Corfu Chanel Case, 1949

On 22 October 1946 in the Corfu Strait, two British destroyers struck mines in Albanian
waters and suffered damage, including serious loss of life. On 22 May 1947, the Government of
the United Kingdom filed an Application instituting proceedings against the Government of the
People’s Republic of Albania seeking a decision to the effect that the Albanian Government was
internationally responsible for the consequences of the incident and must make reparation or pay
compensation. Albania, for its part, had submitted a counter-claim against the United Kingdom
for having violated Albanian territorial waters. On 9 April 1949, the Court found that Albania
was responsible for the explosions and for the resulting damage and loss of human life suffered
by the United Kingdom. The Court also found that the later minesweeping by the United
Kingdom had violated Albanian sovereignty. On 19 December 1949, the Court ordered Albania
to pay the United Kingdom compensation.

Response for this case :

In my opinion, this case is complex. In conclusion, finally, the court ruled that Albania
was responsible for the explosion on October 22, 1946 under international law. Then, there is an
obligation from Albania to pay compensation to the United Kingdom. The second question is
whether the United Kingdom under international law violates the sovereignty of the People's
Republic of Albania on the grounds of the Royal Navy's actions in Albanian waters on 22
October and 12 November 13 1946 and is there an obligation to provide satisfaction? The court
concluded that Britain did not violate Albanian sovereignty on the grounds of the actions of the
British Navy in Albanian waters on October 22, 1946. And unanimously, gave judgment that by
reason of the acts of the British Navy in Albanian waters in the course of the Operation of
November 12th and 13th, 1946, the United Kingdom violated the sovereignty of the People’s
Republic of Albania.

Source :

https://www.lawctopus.com/academike/the-corfu-channel-case/

https://www.icj-cij.org/en/case/1
3. The Lake Lanoux Arbitration, 1957

France (defendant) planned to construct a reservoir for the purpose of producing


electricity at Lake Lanoux. A river running downstream from the lake led into Spain (plaintiff).
In order to alleviate any water loss that Spain might suffer as a result of the reservoir’s
construction, France offered to build an underground tunnel and supply the tunnel with water
from other sources, a volume totaling the same amount that would be used in the reservoir plan.
Spain challenged the plan, arguing that the plan violated the Treaty of Bayonne of 1866 (Treaty)
between the countries in that France could not begin this kind of construction in the absence of a
previous agreement between both countries. An arbitral tribunal was set up by France and Spain
to address the issue.

Response for the case :

The court found that the conflict occurred in the interests of the industries of the two
countries which could be reconciled through mutual concessions between France and Spain. In
this case, a court hearing based on article 11 Bayonne Agreement. And then, in this case, the
court provides that france does not breaking the rule. France has notification to spain regarding
the establishment plan power plants. Although, rejecting arguments from Spain, but there is a
kind of suggestion that France and Spain should consult on the issue. In my opinion, consultation
can be needed to handle cases and prevent cases.

Source :

https://www.quimbee.com/cases/spain-v-france-lac-lanoux-arbitration

Meinarni, N. 2016. Upaya Hukum dalam Penyelesaian Sengketa Pencemaran Lingkungan Laut
dalam Kasus Tumpahan Montara di Laut Timor. Jurnal Magister Hukum Universitas Udayana.
Vol 5 : 4
4. The Nuclear Test Case

On 9 May 1973, Australia and New Zealand each instituted proceedings against France
concerning tests of nuclear weapons which France proposed to carry out in the atmosphere in the
South Pacific region. France stated that it considered the Court manifestly to lack jurisdiction
and refrained from appearing at the public hearings or filing any pleadings. By two Orders of 22
June 1973, the Court, at the request of Australia and New Zealand, indicated provisional
measures to the effect, inter alia , that pending judgment France should avoid nuclear tests
causing radioactive fall-out on Australian or New Zealand territory. By two Judgments delivered
on 20 December 1974, the Court found that the Applications of Australia and New Zealand no
longer had any object and that it was therefore not called upon to give any decision thereon. In so
doing the Court based itself on the conclusion that the objective of Australia and New Zealand
had been achieved inasmuch as France, in various public statements, had announced its intention
of carrying out no further atmospheric nuclear tests on the completion of the 1974 series.

Response for this case :

This case raises new questions whether a country has the competence to bring
environmental pretence even if the country does not suffer material losses. Although the
principle of actio popularis may be known in several national laws, in international law, that
right is no longer known. However, if the obligation is included in erge omnes then it is
indirectly considered as actio popularis. Even though in general the erga omnes obligation is an
act of aggression and genocide and gross violations of human rights, many have the view that
erga omnes obligation can include activities that cause environmental damage in areas located
outside national jurisdiction.

So, there is a principle of state responsibility which originates in the classical principle of
international law which in Latin reads: "sic utere tuo ut alienum non laedas" or in Anglo Saxon
law that principle means "use your own property in such a manner as not to injure that of another
". This principle requires both countries, companies and individuals to respect the rights of others
in the use and utilization of community rights.
Source :

https://www.icj-cij.org/en/case/58

http://digilib.unila.ac.id/19841/15/14.bab%204.pdf
5. The Cosmos Case 1979

Cosmos 954 belongs to russia which is separated from its control center on earth which
fails to orbit and then falls in the western sea of Canada. This statement sets forth Canada’s claim
for compensation for damage the result of the intrusion into Canadian air space of a Soviet space
object, the Cosmos 954 satelite, and the deposit on Canada territory of hazardous radioactive
debris from the satellite. The claim is presented pursuant to the 1972 Convention on International
Liability for Damage caused by Space Object and the international practice states.

Response for this case :

According to Article 2 of the Liability Convention 1972 that the launching country must
be absolutely responsible for paying compensation for damages caused by space objects on the
surface of the earth or against aircraft in flight. According to the Liability Convention, the right
to sue the launching country is the state. Neither individuals nor legal entities have the right to
claim compensation based on convention. Canada does not claim about indirect damage arising
from radioactive hazards. This is because the definition of the term "damage" itself is still being
debated. Canada's total claims were initially at six million dollars, however Uni Soviet
eventually only paid a compensation fee of three million dollars, nominal value is very minimal
when compared with the total amount of funds incurred by the Canadian government to restore
areas contaminated with radioactive material. Canada as the injured party in this case is
demanding compensation to Russia by choosing negotiation methods through diplomatic
channels to resolve disputes in the Cosmos 954 case. it is based on Article 9 which states that
claims for compensation for damages must be submitted to the launching country through
diplomatic channels. So, based on the case, there should be clarity about the definition of
"damage" so that there is no confusion in interpreting it.

Source :

CANADA: CLAIM AGAINST THE UNION OF SOVIET SOCIALIST REPUBLICS FOR DAMAGE
CAUSED BY SOVIET COSMOS 954. (1979). International Legal Materials, 18(4), 899-930.
Retrieved March 1, 2020, from www.jstor.org/stable/20692062

Ciutarno, T.G. 2015. Tanggung Jawab Negara terhadap Peluncuran Benda Ruang Angkasa Ditinjau
dari Space Liability Convention 1972. Fakultas Hukum : Universitas Hasanudin.

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