This article has been written by Gopika Kalidas Naduvilath, a fifth-year law student pursuing BBA LLB (Hons) at Alliance University, Bangalore.
Introduction
International courts and tribunals along with environmental courts and tribunals (ECTs) have substantially increased in growth since 2010. ECTs may currently be found on every continent, in nations ranging from underdeveloped to developed. They have also been included into common and civil law systems, as well as religious institutions. In a period of rising environmental degradation and the need for sustainability, courts and tribunals have grown in relevance. The lack of a definite body for international environmental litigation has heightened concerns about international courts’ involvement in international environmental law.
The Emergence of Environmental Law
The recognition of environmental issues as global concerns has led to the evolution of international environmental law and the establishment of specialized courts and tribunals. However, significant events such as the publication of Rachel Carson’s “Silent Spring” in 1962 and the United Nations Conference on the Human Environment in Stockholm in 1972 hastened the development of global environmental regulation. The Stockholm Conference of 1972 laid the framework for international environmental governance by establishing concepts such as the precautionary approach, the polluter pays principle, and the concept of sustainable development. The World Commission on Environment and Development, 1987, often known as the Brundtland Commission, published the seminal “Our Common Future” report, which introduced the concept of “sustainable development” and accelerated the development of international environmental laws.[1]
The Rio Declaration on Environment and Development, 1992 was released during the United Nations Conference on Environment and Development (the “Earth Summit”) in Rio de Janeiro. It built on the Stockholm Declaration and established key aspects of international environmental law. Subsequent international accords, such as the Convention on Biological Diversity (CBD) and the United Nations Framework Convention on Climate Change (UNFCCC), expanded the scope of environmental legislation and highlighted the need of multilateral collaboration in tackling environmental concerns. The establishment of environmental law as a distinct legal subject was a paradigm shift in legal thinking, recognizing nature’s inherent value and the need to balance economic advancement with environmental conservation.[2]
The International Court of Justice on Environmental Law
The International Court of Justice (ICJ) has long been recognized as the most important judicial organization for resolving international disputes. However, its experience in environmental challenges is limited. The International Court of Justice established a special court of Environmental Matters in 1993 in anticipation of a rise in environmental conflicts; nevertheless, this court was dismantled in 2006 without hearing a single case[3]. The lack of cases before the ICJ can be attributed to a number of factors, including non-state actors’ reluctance to file cases with the Court and the design of current environmental treaty systems, which sometimes include non-compliance mechanisms rather than clear, actionable responsibilities. [4]
Other Courts and Tribunals
In response to the ICJ’s limitations, the international community has seen the emergence of specialised environmental tribunals and courts. One such example is the Permanent Court of Arbitration (PCA), which provides a forum for addressing environmental conflicts. However, concerns have been raised about the PCA’s transparency and ability to develop precedent from arbitral case law, which may restrict its effectiveness.
In addition to the International Court of Justice, several tribunals have handled international environmental issues. The ITLOS tribunal has made significant contributions to environmental jurisprudence. The International Tribunal for the Law of the Sea (ITLOS), a child of the United Nations Convention on the Law of the Sea (UNCLOS)[5], was designed to address environmental issues from the start. The UNCLOS has a chapter on environmental concerns related to maritime law, demonstrating its environmental impact. It was inevitable that the ITLOS will encounter situations with severe environmental impact[6]. UNCLOS has designated greenhouse gas emissions as a category of maritime pollution, in addition to the requirement to avoid, reduce, and control other types of marine pollution. UNCLOS should be interpreted in conformity with the most recent findings and principles of international human rights and environmental law. To ensure a comprehensive global climate change regime, UNCLOS should be interpreted in light of international human rights and environmental law, such as the United Nations Framework Convention on Climate Change and the best available science, according to the Intergovernmental Panel on Climate Change (IPCC).
While there are courts the arbitral tribunals also have a role to play in environmental law. This is seen in the forms of the Trail Smelter Arbitration[7], the Bering Sea Fur Seals case[8], the Lake Lanoux case[9] and the Iron Rhine case[10] are few of the important International Arbitration cases. While states decide the rules for arbitration, the Permanent Court of Arbitration has issued a set of model criteria for environmental concerns.[11]
The Need for an International Court for Environment
From 1996 until 2014, the International Court of Justice issued just a few important decisions on environmental issues, including the legality of nuclear weapons and Japanese whaling. Specifically, the court ruled that the “general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international environmental law”. However, these rulings are insufficient for the contemporary day, as the International Court of Justice is unlikely to issue revolutionary environmental law decisions. [12]
As a result, the establishment of an International Court of the Environment (ICE) has become increasingly important in recent years. A specialized court would be better equipped to deal with the complex scientific and legal concerns that emerge in environmental conflicts, resulting in a more robust body of environmental case law. The proposed ICE would have the advantage of considering claims from both state and non-state actors, potentially widening the scope of environmental litigation, and holding governments and other players more responsible for environmental damage. Furthermore, the ICE might be designed to incorporate a diverse range of knowledge, including not only attorneys but also politicians and technological specialists, enhancing its ability to handle the multifaceted nature of environmental challenges.
The rising number of climate change-related claims brought before international courts and tribunals, such as those filed by tiny island governments at the ITLOS and the Inter-American Court of Human Rights, demonstrates the potential significance of this type of strategic litigation. These cases have the potential to establish significant precedents, define governments’ responsibility to protect the environment and combat climate change, and ultimately impact the future of international environmental law and governance. [13]
Conclusion
As the world confronts pressing environmental issues, international courts and tribunals play an increasingly significant role in resolving environmental conflicts. While the ICJ has limitations in this area, the establishment of specialist environmental courts and the concept of an ICE offer prospective avenues for more effective and comprehensive environmental regulation. These legal institutions have the potential to produce a substantial corpus of environmental case law, define the responsibilities of states and other players, and ultimately impact international environmental law and policy. However, the effectiveness of these initiatives will be decided by overcoming political obstacles, implementing effective enforcement mechanisms, and closing the gap between scientific understanding and legislative decision-making.
[1] Sarah Valentine and Reed Smith, International Environmental Law <https://www.a4id.org/wp-content/uploads/2016/03/International-Environmental-Law.pdf>.
[2] Philippe Gautier, The Role of International Courts and Tribunals in the Development of Environmental Law <https://www.jstor.org/stable/10.5305/procannmeetasil.109.2015.0190>.
[3] Lavanya Rajamani & Sandrine Maljean Dubois, Implementation of International Environmental Law, Hague Academy of International Law Centre for Research.
[4] Steinar Andresen, The Role of International Courts and Tribunals in Global Environmental Governance <https://www.airuniversity.af.edu/Portals/10/ASPJ_French/journals_E/Volume-07_Issue-3/andresen_e.pdf>.
[5] United Nations Convention on the Law of the Sea, 1982.
[6] UNCLOS Part XII.
[7] Trail Smelter Arbitration, United States v. Canada (1938 and 1941) 3 R.I.A.A. 1905.
[8] Reports of International Arbitral Awards, VOLUME XXVIII pp. 263-276.
[9] LAKE LANOUX ARBITRATION (FRANCE v. SPAIN) (1957) 12 R.I.A.A. 281; 24 I.L.R. 101 Arbitral Tribunal.
[10] Iron Rhine Arbitration, Belgium v Netherlands, Award, ICGJ 373 (PCA 2005).
[11] The Permanent Court of Arbitration < https://www.pca-cpa.org/upload/files/ENV%20CONC.pdf>.
[12] Justine Bendel, Environmental Disputes in International Courts and Tribunals <https://era.ed.ac.uk/bitstream/handle/1842/23597/Bendel%202017.pdf?sequence=1&isAllowed=y>.
[13] Justine Bendel, Environmental Disputes in International Courts and Tribunals <https://era.ed.ac.uk/bitstream/handle/1842/23597/Bendel%202017.pdf?sequence=1&isAllowed=y>.
