3.1.2.
The Settlement of International Disputes Relating
to the Environment –
The International Court of Justice and International
Arbitration
Prof. Dr. Dieter
Blumenwitz
The last two or three decades of
world’s history have seen an increase of awareness
for ecological problems and, at the same time, a worsening
of the state of certain ecosystems or the environment
in many respects. Although there had been some earlier
activities and documents, it was basically during
the same period that a meanwhile vast body of international
law relating to the protection and preservation of
the environment has been developed. The 1992 Final
Declaration of the UN Conference on Environment and
Development in Rio de Janeiro has been a landmark
event for both environmental law and policy-making.
Principle 26 of the Rio Declaration on Environment
and Development stresses:
“States
shall resolve all their environmental disputes peacefully
and by appropriate means in accordance with the Charter
of the United Nations.”
This
is only a reaffirmation of the general duty of states
to resolve their disputes peacefully, laid down as
a principle of the UN Charter in Article 2, para. 3,
and elaborated upon by listing appropriate methods
of dispute settlement in Article 33, para. 1,
of the Charter, including conciliation, arbitration
and judicial settlement.
The
International Court of Justice (ICJ), the principal
judicial organ of the UN, was for a long time the
only available forum for judicial settlement in disputes
relating to ecological problems. Article 92 of the
UN Charter states that the Court
“shall
function in accordance with the annexed Statute, which
is based upon the Statute of the Permanent Court of
International Justice and forms an integral part of
the present Charter.”
The
Statute regulates the organization
of the Court and its competence, and contains the
basic provisions for the procedure both in contentious
cases and requests for an advisory opinion. It is
completed by the 1978 Rules of Court, which contain more detailed
rules on the members and subdivisions of the Court,
the registry, and in particular on procedural aspects.
Even
though formally adopted in 1945 at the San Francisco
Conference, the Statute of the ICJ was actually drafted
in 1920 as the Statute of the Permanent Court of International
Justice. It was only slightly altered and adopted
in order to make it compatible with the UN Charter.
The new scientific knowledge about the natural environment
and its conditions, modern developments in the law,
and the changing face of the international community
have led to doubts whether the statute of the Court
still allows an appropriate handling of cases relating
to the environment. Severe criticism of the existing
mechanisms was expressed by scholars and policy-makers,
in particular with respect to the ICJ. Some remedy
could be found in altering or amending the Court’s
Statute. There is, however, little prospect of such
a change in the near future, and, in fact, no restriction
or hindrance to the work of the Court inherent in
the Statute. The ICJ is already well equipped to handle
cases with an ecological impact and to take into account
pertinent considerations; and it has recently proven
to be able to do so. Furthermore, with international
arbitration, states and other actors on the international
scene have a similarly effective but more flexible
means to resolve their disputes without possible
restrictions in the Statute.
The Feasibility
of an Amendment of the Statute
An
alteration of or amendment of the Statute is unlikely
to succeed in the current international political
climate. The procedure for altering or amending the
Statute is the same as the amendment of the UN Charter. Leaving aside the possibility
to call a General Conference for reviewing that instrument,
an amendment to the Charter requires the adoption
by an affirmative vote of two-thirds of the members
of the General Assembly and its ratification by two-thirds
of the UN Members, including the permanent members
of the Security Council.
The
General Assembly’s Sixth (Legal) Committee has set
up a Special Committee on the Charter of the United
Nations with the task, inter alia, to examine suggestions and proposals regarding alterations
of the Charter and the Statute of the ICJ. The Committee
is the competent body for a first discussion of every
proposal for a change of the constitutional instruments,
and an issue rejected in this body is not likely to
be pursued further.
The
very high threshold for any change, however, makes
it unlikely that proposals for an environmentally
streamlining amendment to the Statute – and indeed
the Charter – will be adopted in the near future.
In the current international political climate, particularly
in the UN, it is difficult to imagine a consensus
amongst member states with respect to an issue like
this. The veto power of the permanent members of the
Security Council will prevent any amendment that is
conceived to somehow restrict the achievement of the
policy goals of these states. Given the current stance
of the United States with regard to international
environmental regimes in particular and the reservations
to international
supervisory mechanisms in general, there does not
seem to be much chance for a project like this. In
addition, if the statute – and possibly the UN
charter at the same time – is opened for amendments,
many more hotly contested issues will be on the agenda.
This might in particular extend even to the reform
of powers and composition of the Security Council.
It is doubtful whether proposals to include environment-related
provisions into the statute could survive the then
unavoidable political bargain. States are well aware
of the risky, lengthy and complex work a reform of
the Charter or the Statute would require, and are
only willing to support a proposal the gains of which
would outweigh the risks and efforts put into such
a project. In the absence of a consensus
amongst members, no further action will be taken.
The provisions
of the Statute
While
there are political factors that hinder a significant
amendment to the Statute, there are, in fact, no compelling
reasons why the ICJ could not deal with, or would
not appropriately handle, cases with ecological relevance.
Its competence ratione materiae is not restricted and there are sufficient provisions
in the Statute that allow the proper treatment of
this type of cases.
The
basic norm for the jurisdiction of the court is Article 36
of the Statute, stating the principle of consensus
as the fundamental requirement for every action of
the court. According to Article 36, para. 1,
the Court has jurisdiction where the parties have
agreed to submit their case to it, and where treaties
or conventions in force provide for such jurisdiction.
Para. 2 of the same provision opens the possibility
for a state to unilaterally recognize
the jurisdiction of the Court with respect to any
or certain disputes “in relation to any other State
accepting the same obligation”. Notwithstanding the
enumerative list of aspects of how to categorise international
legal disputes, Article 36, para. 2, does
not contain any substantive restriction to the type
of conflict amenable to settlement by the Court. The
most general reference in sub-paragraph (b) to “any
question of international law” makes this very clear.
Perhaps, however, the way of seizing the Court by
way of agreement, provided for in para. 1 – being
the same mechanism as with the compromis in international arbitration – clarifies even better,
that given the consensus of the parties, every issue
may be brought to the Court. As long as the Court
can find that a “legal dispute between the parties”
exists, there is no further restriction
ratione materiae. No type of a – legal –
dispute is excluded from the competence of the Court.
Every dispute touching on any aspect of international
law may be brought to the court, and hence also those
that concern the environment or relate to an impact
on any part of the ecosystem.
While
the Court can potentially deal with every dispute,
it has tried to make itself more attractive for the
settlement of disputes relating to ecological issues.
In 1993, the Court established a standing seven-member
Chamber for Environmental Matters. In order to seize that special
chamber, a case would have to be referred to it by
agreements of the parties. The court thus puts at the
disposal of the parties a specialised body consisting
of judges with an increased interest and expertise
in international environmental law. It thereby meets
the common criticism on existing international fora
that existing bodies would lack sufficient expertise
in environmental law matters. However, the chamber has
never been used, and it is not very likely that it
ever will be, for the implicit qualification of a
dispute as an environmental one would always meet
the objection of the party that does not see the issue
at dispute as one governed by environmental considerations.
The
Court is not only competent to deal with environmental
disputes, it has also pertinent rules of procedure.
It may not only request the parties to produce evidence
or additional explanations, but can, on its own initiative,
seek any other information, including inviting expert
witnesses, and commission an inquiry
or expert opinion. Furthermore, although it
has never done so, it could appoint assessors to sit
on the bench in order to provide the Court with expert
knowledge in an e.g. technically complex matter.
Thus,
in theory, the Court is well equipped to handle even
the most complex cases involving highly technical
issues, as may often be the case in environmental
disputes.
The Practice
of the International Court of Justice
Disputes
relating to the environment or concerning ecological
aspects have been dealt with by the ICJ in several
instances. There are sufficient examples of pronouncements
on environmental issues.
Already
the Nuclear Test cases, brought in May 1973 by New
Zealand and Australia respectively against France,
concerned, in essence, the question of a possible
negative environmental impact of the tests namely,
by radioactive fall-out. However, the Court avoided
to pronounce on the issue, for it found that the respective
claims no longer had any object, and that it therefore
was not called to give a decision thereon. Likewise,
the Fisheries Jurisdiction cases brought by the United
Kingdom and Germany against Iceland in 1972 dealt
with the unilateral extension of exclusive fishing
rights of the latter. The Court, in dealing with the
justification of preferential fishing rights, did
also refer to the need of some system of catch-limitation
in order to preserve the fish stocks.
Both
cases suffered from the non-participation of the respondent
in the proceedings, and the Court avoided to take
into account or apply norms of international environmental
law. This changed only in the mid-nineties when the
Court, in an attempted re-opening of the Nuclear Test
cases referred to the “obligations of States to respect
and protect the natural environment”. Shortly thereafter, in the
much disputed Advisory Opinion on the Legality of
the Threat or Use of Nuclear Weapons, the Court held:
“The existence of 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 law relating to the environment...”
It
also took into account other international norms and
principles relating to the environment, concluding
that
“... existing
international law relating to the protection and safeguarding
of the environment ... indicates important environmental
factors that are properly to be taken into account
in the context of the implementation of the principles
and rules of the law applicable in armed conflict.”
Of
even more relevance for the application and reconfirmation
of certain rules of international environmental law
is the case between Hungary and Slovakia concerning
the Gabcikovo-Nagymaros Project. This dispute, arising
out of a bilateral project to build a system of locks
and the subsequent unilateral termination of the treaty
and the suspension and abandonment of works on the
project, was submitted to the Court by Special Agreement
of the parties in 1993. In
its decision, the ICJ pointed out
“that
newly developed norms of environmental law are relevant
for the implementation of the Treaty and that the
parties could, by agreement, incorporate them through
the application of Articles 15, 19 and 20 of
the Treaty.”
And
further, albeit with a different emphasis:
“In
order to evaluate the environmental risks, current
standards must be taken into consideration. This is
not only allowed by the wording of Article 15
and 19, but even prescribed, to the extent that
these articles impose a continuing – and necessary
evolving – obligation on the parties to maintain
the quality of the water of the Danube and to protect
nature. ... Owing to new scientific insights and to
a growing awareness of the risks for mankind – for
present and future generations – of pursuit of
such interventions at an unconsidered and unabated
pace, new norms and standards have been developed,
... Such new norms have to be taken into consideration,
and such new standards given proper weight, not only
when States contemplate new activities but also when
continuing with activities begun in the past. This
need to reconcile economic development with protection
of the environment is aptly expressed in the concept
of sustainable development.”
In
resolving the conflict between environmental law concerns
and the law of treaties, the ICJ did not issue a definite
ruling. It noted, referring to the North Sea Continental
Shelf cases, that it was for the parties to negotiate
a solution having looked afresh at the effects on
the environment, and not for itself “to determine
what shall be the final result of these negotiations”
– a solution which would have to be, in any event,
“within the co-operative context of the Treaty”.
This
judgement, however, failed to resolve the dispute
and the case is pending anew before the Court. But
this cannot be considered to be the result of deficiencies
in the Statute. On the contrary, the Court went beyond
the functions of traditional judicial dispute settlement.
It avoided to rule on the disputed issue and basically
sent the parties back with some general advise – an
innovative but not successful method for an international
court. But this makes clear the great flexibility
the court may act with – not being restricted
by the Statute or any other document.
