Case 3: Customary International Law

Big Forest is a huge and unpopulated woodland area extending along the borders between
States A, B and C. In the late 1960s, biologists found out that Big Forest was home to
several vulnerable animal and plant species that would face extinction within a short period of
time due to increasing industrial activity in that area. This led States A and State B to
immediately adopt national measures to prevent damage to the forest’s ecosystem. In
particular, under the national law of both States, it has been illegal since then to carry out any
activity in that area that would cause long-lasting negative impact on the environment.

In addition to that States A and State B have convened the annual “Big Forest Protection
Summit”– a conference organized jointly by the ministries of the environment which has
always concluded with the signature of a joint declaration, where both ministers express their
“moral duty and determination to maintain the common effort to protect and preserve Big
Forest”.

State C, on the other hand, has never taken part in any measures or initiatives adopted by
States A and B. Furthermore, State C has consistently declared that it would not accept any
obligation under international law concerning industrial activities in Big Forest.

It is only in 2010, after lengthy negotiations, that the three States manage to reach a tripartite
agreement. They conclude the “Big Forest Conservation Memorandum” whose Article 2
prohibits any activity in the forest that would cause long-lasting negative impact on the
environment.

In 2018, vast oil deposits in the forest parts located on territories of State B and State C are
discovered. When the two countries announce the authorization of industrial extraction
projects that would lead to permanent destruction of large parts of Big Forest, State A
threatens them with legal proceedings before the ICJ. State B and State C, however, refer to
the reservation they attached to their declaration under Art. 36(2) ICJ Statute, according to
which the Court is not allowed to apply multilateral treaties when exercising its compulsory
jurisdiction.

How would the ICJ assess the claims of State A?

Please note that both States B and State C have accepted the compulsory jurisdiction of the
ICJ under Article 36(2) of the ICJ Statute.