International Court of Environment – Need of the Hour?
March 5, 2021
Environmental disputes are not new and have been a topic of discussion for years now. If we rewind a few years back, the need for an effective and efficient dispute settlement system was not of major concern but with the growing population, environmental issues have taken center stage and nations are more and more aware of the impact of these issues. Statements by scientists drawing attention to the urgent nature of the climate crisis are becoming ever more frequent, and alarming.
Reports by the United Nations and other overall bodies contain dire admonitions about the threat of species extinction. They accentuate the necessity for extraordinary changes to the usage of land and energy all around the globe in the event that we’re to decrease harmful greenhouse gas (GHG) releases. Some went on to extremes to say that harm to the environment is now irreversible in a couple of domains. The rapidly developing and abundant changes are an invitation to reflect and debate on the institutional transformations in the domain of global governance in order to identify and understand the challenges we face today, and ultimately devise alternatives to overcome them.
These challenges are enormous. The sovereign state is indeed one of the most advanced governance mechanisms ever created, capable of ensuring a reasonable degree of security and prosperity to its nationals. Currently, however, government and governance of states are no longer synonyms. In a vast universe of political, economic, legal, geographic, and cultural interdependencies, no individual state, as skillful as it may be, is able to adequately manage transnational problems, for instance, those related to international environmental protection.
Subsisting Settlement Mechanisms for Environmental Disputes
In the 1980s, a judge of the Italian Supreme Court, Justice Amedeo Postiglione, had proposed a model for the formation of a court that specifically deals with such disputes, in an article titled, “A More Efficient International Law on the Environment and Setting up an International Court for the Environment within the United Nations”. It was at that time in 1988 that the environment was very prominent as an international political agenda and the first IEC proposal was put forth by a committee in Rome. Much later, in 1994, the International Court of Environmental Arbitration and Conciliation (ICEAC) was also set up in the city of Mexico for conciliation of such disputes. ICE Coalition is another project that aims at exploring the existing lacunas and providing a case for the creation of IEC.
Due to the increasing disputes related to the environment, the ICJ had created a special Chamber for Environmental Matters in 1993. However, it drastically failed and closed down in 2006, because during the thirteen years of its existence, not a single case came to the Chamber. Although the ICJ has set up major precedents in dealing with the damage to the environment, such as Corfu Channel Case 1949, Pulp Mills Case 2010, and Whaling in the Antarctic Case 2014 but most rulings are given by ICJ have not been in favor of those claiming damages.
All the rulings and the jurisdiction of ICJ however play an important role, but the effectiveness for settling the current environmental disputes is still not achieved. There are various underlying reasons for this ineffectiveness. In order to set up a dispute settlement mechanism for environmental issues, an understanding of what an international environment dispute is a must. But, the road ahead has many challenges when it comes to the determination of such disputes as there is no clear definition of the International Environment Dispute, Is it an environmental issue? Is it economic? What factors determine the nature of the dispute? Would it come under the umbrella of maritime issues? etc.
The very first challenge is the vagueness of the current International Environment Law regime which can be realized by the fact that there is no standard legislative body that provides for the norms, procedures, and standards to determine if the environment disputes are international in nature. Secondly, there is also a lack of enforcement mechanisms to punish violations of environmental agreements. As a result, it is often unclear which law is generally pertinent to a debate and which international court or tribunal has better jurisdiction over the dispute.
WTO Dispute Resolution System is another model that is relevant in the current scenario. However, the Dispute Settlement Body of WTO comes into the picture only when the aggrieved party is a member state. The shortcoming of DSB is that the decisions are rendered outside of public scrutiny and are kept secret. One more deficiency in the WTO dispute settlement mechanism is that of the absence of urgent measures. Sometimes, DSB also reviews their previous positions without explicitly overturning them, which in turn creates confusion in the interpretation of such decisions. WTO rules, which are essentially aimed at liberalizing trade, have a potential impact on almost all other segments of society and law. For example, liberalizing trade may sometimes jeopardize respect for the environment.
While these existing courts and mechanisms could be corrected to provide standing. It is however important to consider that the current establishments are simply just too restricted and limited.
Is the International Court of Environment need of the hour?
In September 2019, world leaders were invited to bring their most ambitious ideas to reduce global warming to a UN Climate Change Summit. The results were disappointing. Two of the top three GHG-emitting countries, China and India, failed to make significant commitments to further limit their carbon emission reduction targets under the Paris Agreement. The third, the United States, did not respond at all on the issue. As UN Secretary-General António Guterres said, ‘we don’t make judgments about countries… we are not a court’. Maybe that is the thing that’s expected to slice through the possibly disastrous impasse.
Environmental degradation, including climate change and resource scarcity, has not attracted sufficient political worry, at least not yet. For policymakers, these issues are rarely as significant as ensuring the worldwide economy does not tank while they are in office.
There is a dire need for setting up an international court that can provide expertise for the cases which require immediate concern because it is impossible to adjudicate complex subject matters without scientific reasoning and specialized courts. It is important that such a court should operate on compulsory jurisdiction, which implies that the choices are binding on the parties. Both state and non-state actors must have standing in such specialized courts as the ICJ and WTO do not offer standing to private actors. A threshold should be imposed that only matters of grave importance will be heard before the court. It would uphold the utilization of preventive and, where fundamental, injunctive measures to restrict the ongoing ecological mischief.
There are various perspectives regarding the necessity for creating an International Environment Court for dispute settlement. One is that ICJ and similar specialized forums such as ITLOS are enough to hear environmental disputes as they have the ability to engage specialists and have broad jurisdictional competence. But these courts can be approached only if the dispute is between states, in case of private disputes, arbitral tribunals should be approached. Another perspective is that with the evolving environmental concerns, these institutions would not suffice and a specialized forum must be established.
Therefore, a centralized body could become a standard compliance and dispute settlement mechanism for the environmental treaties such as the UN Framework Convention on Climate Change, Kyoto Protocol and the Convention on Biological Diversity, etc. which in turn would reduce the monetary and human resource-related troubles associated with the multiplication of such treaty bodies. Otherwise, this may not be soon enough, and, if legitimate responses to natural change continue lingering far behind events, coming generations would consider the law to be blameworthy of acting appallingly late.
Editor’s Note The author of this article raises questions about the effectiveness of International courts in protecting our environment. The author then goes on to describe the vague nature of environmental laws and the discrepancies in International courts. The author concludes with the need for an International Court for the environment to address the environmental issues at a more centralized level to reduce complexity between multiple such treaties.