Towards an International Green Court

Stuart A. Bruce | China Dialogue | 18 June 2012

 

Twenty years after the last Rio summit, the world still lacks a judicial body to hear and determine global environmental disputes. Stuart A Bruce sets out the case for such an institution.

In the 40 years since the UN Conference on the Human Environment in 1972, regional and multilateral environmental agreements have proliferated. The subject matter and scope of such treaties has significantly evolved over time: from regional atmospheric pollution to management of the marine environment, toxic substances, nuclear energy, international watercourses, species protection, biodiversity conservation and climate change to name a few. Treaties have also broadened in geographic scope, from bilateral transboundary matters to global matters of common concern.

Progress towards achieving treaty aims is facilitated through numerous state-agreed mechanisms – including monitoring, reporting, verification and certain non-compliance procedures – with varying degrees of success (the case of the Montreal Protocol and Vienna Ozone Convention is an exemplar of success). Compliance with treaty obligations remains inconsistent and risks undermining their spirit and purpose. Greater compliance with treaty obligations requires effective enforcement, resource transfer and better judicial dispute resolution.

The current international environmental law regime presents a mismatch between global interdependence and global governance. What is lacking is a specialised international judicial body to hear and determine transboundary and global environmental matters. Such a body would also provide greater coherence to the currently fragmented international environmental governance regime. Strengthening international environmental law mechanisms are essential to, among other things, securing sustainable development and combating climate change in fair and equitable manner.

The purpose of an International Court for the Environment (ICE) would be: to build trust among the international community; to clarify legal obligations; to harmonise and complement existing legal regimes; to provide access to justice to a broader range of actors than traditional institutions provide; and to create workable solutions to modern environmental concerns.

In particular, ICE would provide the primary forum for the resolution of disputes arising from customary and treaty-based environmental law obligations owed between states or to non-state actors. It would ensure cost-sensitive and flexible dispute resolution avenues, including: non-binding negotiation; mediation and conciliation; and binding arbitration and judicial determination, as well as judicial advisory opinions. Importantly, ICE will be accessible not only to states, but to individuals, corporations and civil society – a fundamental departure from traditional international judicial bodies and a considerable step towards facilitating international environmental justice.

ICE could also subsume the role of existing environmental treaty-based enforcement bodies, including those established, for example, under the Convention on Biological Diversity, the United Nations Framework Convention on Climate Change and the Kyoto Protocol.

In practice, there are two major pathways to forming the ICE, by mutual agreement or by treaty. After formation, the operation of ICE will be governed by its constitution. The quickest, cheapest and easiest way to establish the ICE would be by mutual agreement. In practice, parties to a dispute would simply need to agree and consent to submit their dispute to the jurisdiction of an ICE tribunal and to be bound to its decisions and constitution, which includes the tribunal’s jurisdiction, substantive rules and grounds for standing – the legal term for the right to sue.

This is akin to existing processes under international law for use of private arbitral institutions and establishing private ad hoc arbitral tribunals – including facilitation of domestic enforcement through the New York Convention. The court as a tribunal established without a treaty could be set up very quickly, within two years. This would then provide a working example of what the court can achieve and help to encourage adoption of a UN treaty to mandate a permanent ICE.

The more involved mechanism to establish the ICE would be through an international treaty. This process could start by a recommendation at an international conference, such as Rio+20 – from June 20 to 22 – supported by a UN General Assembly resolution authorising the commencement of negotiations. While a draft constitution has already been prepared, it is likely that negotiations would ensue informally for some time and culminate in an international conference where delegates of states formally agree to the final version of the constitution text – all of which has an effect on the timeframe for establishing the ICE.

After agreement of the text, a pre-determined number of states would need to sign and ratify the treaty before the ICE officially comes into being as a new stand-alone international tribunal. A prototype for this process is the establishment of the International Criminal Court that is founded on negotiations of the Rome Statute. Once ICE is established, the operations and daily functioning of the court or tribunal would be determined in the first instance by its constitution, which would set out, among other things, matters relating to jurisdiction, the types of evidence that can be relied upon, procedure, subject matter scope, standing provisions and relations of the ICE with international and domestic law.

If the court were to operate more akin to an arbitration tribunal, the parties to a dispute would have a certain degree of freedom to consensually choose the rules of evidence and procedure of the tribunal, akin to the International Centre for Settlement of Investment Disputes, in addition to relying on scientific evidence and arbitrators with subject-matter expertise.

Many stakeholders and groups have an interest in establishing the ICE. Historically, only states had standing to seek judicial settlement on the international plane, for example through the International Court of Justice (ICJ). As a result, a large number of the people who suffer from international environmental problems have no access to justice. The broad standing rules of ICE will ensure that those affected by environmental problems have a direct right of access – this will often be NGOs, civil society and affected communities or individuals. This will enable groups to bring attention to environmental degradation that their own national governments have been unable or unwilling to address and go some way to implementing the pillars of the Aarhus Convention.

Another vital constituency is the global business community. ICE will provide businesses with independent assessment of any obligations, thus legal certainty and predictability so that long-term investment risk may be effectively managed. ICE could also influence the world business community to improve environmental standards and practices to produce a corresponding reduction in the risk of environmental catastrophe. An example of a current international dispute well suited to ICE is that of Chevron v Ecuador, which has been plagued by allegations of judicial imprudence and award enforcement complexity. As a legitimate and globally recognised body, ICE would overcome many of these challenges.

ICE will supplement traditional international dispute resolution forums by providing a body that is able to receive technical and scientific evidence and is populated by judges educated in environmental law matters – a lingering lacuna in extant international courts and tribunals (see for, example, the ICJ’s 1997 Judgment in Gabcikovo-Nagymaros (Hungary v Slovakia) where sustainable development was given all but the most cursory legal analysis). This will provide similar benefits for states as it does the business community and assist in clarifying and progressively developing international environmental law.

The need for a forum providing in-depth consideration of independent science was reaffirmed with the ICJ’s Judgment in Argentina v Uruguay – the Pulp Mills dispute – in which a dissenting judgment regretted that the ICJ missed “a golden opportunity to demonstrate to the international community its ability, and preparedness, to approach scientifically complex disputes in a state-of-the-art manner”. The ICJ is a valuable institution, but it is not capable of providing the adaptability, consideration of science and access to justice for non-state actors required in environmental disputes. Indeed, in 1993, the ICJ recognised the need for environmental specialism when it established a specialised chamber to hear environmental disputes, but in part because it was still only accessible to states, it was hardly used. It has since been decommissioned.

ICE will benefit the international community of states (and non-state actors) in at least four ways: harmonising the fragmented system of international environmental law; serving as the chamber for all multilateral environmental agreements that reference Article 33(1) of the UN Charter on the settlement of disputes; resolving conflicting international law obligations, such as those between WTO rules and UNFCCC obligations; and providing interpretive guidance and judicial support to any new international environmental governance body, such as a World Environment Organisation – a proposal at Rio.

To make the ICE a reality, greater international support and proactive state sponsorship is required, as is environmental leadership from the business community. How long it takes to open the doors and the method by which ICE is established depends on the abovementioned variables. Many actors have publicly acknowledged their support or interest for an ICE of some type, including the United Nations Department of Public Information, European Parliament, Northern Alliance for Sustainability, The Access Initiative and the UK Government.

The ICE is possible, and it could play a significant role in addressing modern environmental concerns. But it requires more support to bring it to life.