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September 2009 Archives

Rona Koifman

For years American politics has been stirred by debate over whether the United States should join or cooperate with newly emergent instruments of multilateral law such as the International Criminal Court (ICC) and the Kyoto Accords on climate change. To these ongoing controversies may soon be added another: should the United States support or oppose plans for an international court for the environment, empowered to punish states or private actors that damage irreplaceable natural resources or fail to protect imperiled species or ecosystems?

At present, the debate over such a court is mostly being heard abroad - particularly in Great Britain, where a prominent lawyer named Stephen Hockman is spearheading a campaign that has won backing for the idea from various public figures such as Exchequer secretary Alistair Darling and Dame Judi Dench (Prime Minister Gordon Brown has also made vaguely favorable noises). At some point, however, we are likely to hear more about it on this side of the Atlantic. Already one international environmentalist group well known in this country, Friends of the Earth, has declared its backing for the concept, and others are likely to follow.

If it follows the lines promoted by Hockman's campaign, an international environmental court would have the following characteristics:


  • It would be grounded on a new international treaty, most likely under the aegis of the UN, which would proclaim a universal human right to a healthy environment. Following the example of the International Court of Justice, the court's rulings would be binding on all UN member states, and it would itself be part of the UN system.
  • It would have the power to impose fines and damages on nations or (significantly) private actors that degrade the natural environment, fail to protect endangered species, or otherwise fall short of respecting or enforcing the newly declared right to a healthy environment, as well as other requirements established by international environmental treaties. In its power to reach and assess fines and damages against private actors such as corporations, it would exercise markedly wider jurisdiction than the existing International Court of Justice, which can prescribe penalties against nations only.
  • The court would be open to complaints from individuals or non-governmental organizations (NGOs), again in contrast to the narrower jurisdiction of the ICJ, which accepts complaints only from state representatives.
  • It would be led by retired judges, climate change experts, and public figures, and would include a scientific body to assess technical issues. It is unclear whether this staff would be permanent or ongoing. Some have suggested that the panel might also wield an essentially regulatory power to issue guidance on environmental practices in advance of actual adjudication.
  • The tribunal would hear not only a variety of disputes of an intrinsically international character (as for example over air pollution crossing national boundaries, or damage to ocean fisheries) but also many purely domestic environmental disputes, because its jurisdiction would be premised on the enforcement of treaties and conventions with terms that control the domestic environmental policy of signatory states.
  • Like the ICJ, the court would have the power to pronounce advisory rulings that are not legally binding. Hockman in fact suggests that the new court's main role would be in making "declaratory rulings" that embarrass countries into taking stronger environmental action.


There is nothing new in itself about pursuing environmental goals through international treaties. Compacts between particular nations, neighboring or otherwise, have addressed such problems as regional water and air pollution, migratory species, aquifer depletion and so forth. For the most part, however, such agreements have been reached among particular pairs or groupings of countries rather than under the aegis and sponsorship of the world in general.

There have been many proposals for a fully international body for the protection of the environment, but none have ever gotten off the ground. Brazil proposed such a court in 2002, while France (among others) has suggested that a World Environment Organization be established in parallel with the World Trade Organization, whose disputes sometimes involve environmental elements. Others have suggested upgrading the mostly educational and development-oriented UNEP (United Nations Environment Program) to the status of an international environmental agency. Indeed, the International Court of Justice itself already has a specialized Chamber for Environmental Matters, established in 1993 but never once called upon to decide a case in the years since then, perhaps because it is empowered to hear controversies only with the consent of both parties to the case.

Among the most fundamental problems with the new proposals is the sweeping yet undefined nature of the contemplated new "right to a healthy environment". When existing environmental treaties do address issues of pollution, they most often do not spell out emissions limits that make any absolute claim to being objectively correct or a consequence of the recognition of universal human rights. Instead, they tend to call upon member nations to lower their emissions by certain percentages, depending on current pollution levels - a practical concession to the status quo and to the need to gain political support for implementation.

In short, the concept of a right to a healthy environment cannot readily be filled in with the materials that international law currently provides. Indeed, and ironically, the best-established international customary norm relating to the use of land and resources is the one holding that countries have the sovereign right to do as they wish with their own natural resources. That norm - much prized by many nations of the developing world as well as some in the developed - is in great tension with the vision of a new international body wielding power to curtail what informed world opinion might see as excessive resource development.

Then there are problems of enforcement. At present, various multilateral tribunals face a risk that member nations will defy their edicts, as well as the wider risk (as with the refusal of the U.S. to join the I.C.C.) that nations will decline to submit to their authority in the first place. What happens when a new tribunal orders the closing down of a particular economic resource (hunting, ranching, mining, forestry) that provides what a local population finds to be a vital means of sustenance, with no power to offer countervailing incentives or subsidies to offset the economic pain?

The enthusiasm for the idea in Britain is unlikely to be matched in Washington, D.C. To begin with, the U.S. has shown great reluctance over the years to enter pacts that subject individual Americans or businesses to international jurisdiction (the ICJ, to which the U.S. has submitted, hears cases only against state actors.). Similarly, although the U.S. ratified the Universal Declaration of Human Rights in 1948, it opted out of a parallel agreement (known as the Optional Protocol of the International Covenant on Civil and Political Rights) meant to allow individual actors to seek remedy from the UN for violations committed by their home government.

Arguments of economic cost are also likely to be advanced against the idea. It will be recalled that the U.S. Senate effectively vetoed American participation in the Kyoto Protocol on climate change. At the time, President Bush estimated that ratification of the Protocol would cost the U.S. economy $400 billion and 4.9 million jobs. While there is no real way to estimate the costs of commitment to an international environmental court process, opponents would be likely to argue that the price tag would begin with the costs of being ordered to adopt measures aimed at averting climate change, and then go up from there since the court would enforce other sorts of environmental mandates as well.

Finally, tangible costs aside, the same sorts of concerns about loss of sovereignty that have loomed large in earlier international-law controversies, and which underlay the Bush administration's decision to keep the United States out of the jurisdiction of the International Criminal Court (ICC), would be heard again. Many U.S. Senators could be expected to object to the extension of the court's power over environmental issues that at present are handled within the United States as purely domestic concerns. Like other advanced countries, the United States already provides extensive remedies for those affected by many forms of environmental damage, and these domestic remedies, it will be argued, are (or at least could be made to be) more reliable and suited to local circumstances than those prescribed by an international tribunal.

What will be the view of the Obama administration? Presumably it will not be as strongly opposed as its predecessors to the idea, both because it takes a more favorable view of international law generally, and because it is broadly more supportive of environmental regulation (as with its support of climate change legislation which goes considerably further than many Republican critics would like, even if not as far as many environmentalists want).

If his early statements on international law are any indication, President Obama might be open to entering discussions concerning an environmental court, as he is open to discussions regarding the United States's relationship to the I.C.C. But this is not the same thing as saying that his administration would in fact endorse a resulting accord or commit political capital to getting a convention ratified. The same constraints of public opinion and American political culture are at work to bind the U.S. State Department as were at work under the previous administration.

The United States would inevitably face much criticism abroad if it refused to ratify a court once established, just as it has faced criticism for holding back from other international instruments. Assuming that no direct confrontation between the U.S. and the court resulted, the more practical issue would be the effect on U.S. entities operating abroad, in particular business interests. If treaty rights were asserted to the disadvantage of U.S.-owned interests in a particular ratifying nation, possible outcomes might include U.S.-based pressure on the other country to side-step the treaty obligations, or alternatively pressure on the U.S. to engage with the treaty process so as to speak up for its nationals' interests.

Advocates of the international court in the U.K. have been working with much energy to build momentum for the idea. Efforts are underway to enlist formal British government support in preparation for the Copenhagen climate change conference to be held this December, at which the Kyoto Protocols will be re-evaluated. In May, Hockman convened a meeting to get the project underway, one possible vehicle being a non-profit entity devoted to undertaking test cases under English law.

Even if the court idea as such fails - as at present seems the most likely outcome - it is possible that it will advance other objectives of international environmental advocates. By spurring discussion and putting national governments on the defensive, it could lead to more international scrutiny of domestic environmental policies and thence to pressure from more directions for more stringent domestic environmental laws. It might also encourage the expansion or reworking of existing mechanisms, such as the Kyoto Protocol, which could be seen as a comparatively moderate alternative to demands for a court with strong powers. Once the internationalization of environmental law gets under way, it is not clear that it will be readily turned back.

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Rona Koifman is an internationally experienced freelance writer, editor, and translator with degrees from New York University and the London School of Economics. This column is original to the Manhattan Institute's Point of Law and was published September 23, 2009.

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For further reading:


  • Gray, Louise; Lawyers call for international court for the environment, Telegraph (UK), December 1, 2008;
  • Gray, Louise; Greenhouse gases will be cut by a third in world's first carbon Budget, Telegraph (UK), April 23, 2009.
  • Hockman, Stephen; In search of world justice, Guardian (UK), August 19, 2008;
  • West, Larry; Should the United States Ratify the Kyoto Protocol?, About.com, undated.


 

 


Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.