Article by Julia Bennett,
The International Court of Justice (ICJ) has a complicated role in the regulation of environmental harms. The ICJ heard its first case concerning the environment in 1973, just one year after the Stockholm Conference brought environmental harm to the international agenda. While this early interest hinted that the ICJ was going to take an active role in environmental regulations, they have since failed to hand down many environmental rulings. As a result environmental law scholars have suggested the creation of an International Court for the Environment.
ICJ as a Means for Achieving Pro-Environment Rulings
In 2010, Australia sued Japan in the most prolific and progressive public environmental law case that the ICJ had ever decided. Australia challenged Japan’s whaling program, alleging that it was in violation of the International Convention for the Regulation of Whaling which both states had signed in the 1980s. Specifically, Japan had created a scientific whaling program through which hundreds of whales were killed annually. They claimed that this program was legal under an exception to the treaty. In 2014 the ICJ ruled that this program did violate the treaty and ordered Japan to stop the program. This case was, in many ways, the most successful direct ICJ ruling on environmental harm.
ICJ as a Means to Initiate Negotiations
Since the ICJ does not hand down many environmental rulings, states have had to use the ICJ to promote environmental justice in other ways. Perhaps the ICJ’s strongest effect on regulating environmental harms is in initiating negotiations on previously deadlocked conflicts. For example, in 2006, Argentina initiated litigation against Uruguay, contending that Uruguay's erection of pulp mills on the River Uruguay violated an 1875 bilateral statute governing the two countries’ use of the river. Argentina contended that the two mills that Uruguay built affected water quality. The ICJ took a progressive approach to the conflict: the Court gave serious consideration to several environmental arguments, especially the importance of environmental impact assessments. The ICJ ultimately ruled that the mills could remain open since they did not pollute the river, but noted that Uruguay had failed in not informing Argentina of their activities. While the court's ruling fell short, Argentina and Uruguay were actually able to engage in important negotiations that pushed the two countries towards resolution by engaging the ICJ. In 2010, Uruguay and Argentina established a joint coordination of activities on the river, as the Court had recommended.
Similarly, the ICJ helped push Colombia and Ecuador towards resolution on a case surrounding the use of aerial spraying of herbicides. Between 2000 and 2007, Colombia used aerial spray on cocoa plants in a bid to stop cocaine production. Ecuador claimed that these herbicides blew across the border and harmed the environment, crops, animals, and people in the border region. The case raised novel issues of transboundary environmental harm with which the ICJ had never before grappled. Nonetheless, the ICJ’s involvement had an important, albeit indirect, impact on the conflict’s resolution. During their pursuit of ICJ litigation, Colombia and Ecuador were also engaged in negotiations. The litigation process encouraged Ecuador and Colombia to reach an agreement in their negotiations so they themselves could set the terms. In 2013, the parties announced that Colombia would accept limitations on their use of aerial herbicide sprays to prevent cross-border contamination.
While the ICJ’s ability to prompt negotiations on deadlocked conflicts is certainly positive, many environmental issues remain unresolved because the Court hears very few such disputes. One solution is the creation of an International Court for the Environment (ICE).
International Court for the Environment
ICE would have several advantages over the ICJ, namely its scope and mandate would be dedicated to environmental justice. Specifically, it could: (1) create a centralized system available to a variety of actors; (2) produce an international standard of care; (3) improve international law on the environment; (4) maintain consistency in judicial decisions; (5) promote preventative action; and (6) enforce existing treaties. The creation of ICE is a viable solution that has gained broad support by environmental law scholars. Experts envision ICE, with its own scientific body, having broad coverage, direct access to NGOs, private parties, and states. While this concept may sound novel, it is not new: ICE was first proposed in 1999.
ICE is even more relevant today than it was in 1999. Traditional mechanisms suffer from a participation deficit, especially as the interests of actors become increasingly multifaceted. In addition, different actors have different environmental needs. In recent years non-state actors have emerged as key players in international environmental governance. Therefore, a system that actively includes non-state actors will be necessary to truly regulate environmental harm. One of ICE’s many strengths is its emphasis on including a variety of actors. Allowing non-state actors to bring claims would produce more rulings on environmental harm, especially in regions where state actors are not incentivized to mitigate environmental damage. ICE would help address the current climate crisis by holding states to their commitments to existing and future climate agreements, regardless of changes in governments, economic conditions, or political relations.
In the Meantime
While international environmental law scholars are in near total agreement that ICE would be the most effective means forward, they also recognize the slow speed at which the UN and international community at large moves. In the past, an international court could be promulgated only after years of negotiations to create an international court. Stephen Hockman, an environmental lawyer, noted that “historically at least, the creation of international institutions and the development of international law have occurred, generally, at somewhat glacial speed.”
The international community should continue to push for ICE; at the same time, it should work to refine existing mechanisms, like the ICJ, for regulating environmental harm. Despite its limitations the ICJ has shown potential in handing down direct pro-environment rulings. As the ICJ has stated, there is a “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 law relating to the environment”.
Author
Julia Bennett (J.D. Candidate, Class of 2023) is a Contributor to Travaux. Her interests include human rights law and public policy. Julia graduated from the University of St Andrews in the U.K. with a degree in International Relations and Modern History. Julia is currently working with Berkeley's chapter of the International Refugee Assistance Project.