Specific
Restrictions in the Statute
According
to the Statute, the Court may deal with every type
of international legal dispute,
and its jurisprudence shows that it has indeed
dealt with several cases relating to the environment
or ecological questions. However, critical remarks
remain with respect to the capability of the Court
to deal properly with disputes of this kind in several
other respects.
Such
criticism from an environmental perspective has centred
on the lack of locus standi for international organisations,
the bar for participation, in any form, of private
groups and individuals, and the lack of means to represent
the common interest in the environment in the procedure.
The
first two aspects concern issues of general interest,
i.e. they do not represent a specific environmental
problem. The clear wording of Article 34 of the
Statute prevents an International Organisation from
becoming a party in a contentious case before the
Court. In the view of the advent of international
integration organisations exercising many classical
state functions – reference is made to the European
Community / European Union – there appears actually
to be the need for an amendment of the Statute. To
the extent organisations of this type act like states
and fulfil their tasks, a need for international dispute
settlement fora exists. The newer instrument establishing
the International Tribunal for the Law of the Sea
(ITLOS) provides for the participation of an international
organisation in proceedings before that tribunal. And in the context of the
WTO Dispute Settlement System, it is also the EC,
and not any of its member states, that is party to
the disputes in that framework. In the cases concerning
the air strikes against former Yugoslavia, the true
respondent would have been NATO as an international
organisation, which commanded – and was ultimately
responsible for – the military activities.
Instead, the application named ten member States,
and thus initiated ten different and separate cases.
Objections
to reform proposals in that respect have been too
strong. A detailed proposal for an amendment of the
Statute in order to extend the competence of the Court
to disputes between States and International Organisations
was already rejected in the Charter Committee, because
there was said to be neither consensus nor need for
such a reform, which would also not be politically
feasible. Whether this was a prudent
decision with respect to the ICJ may be doubted, since
there is actually a lacuna in the statute making the
Court unsuitable for certain disputes.
International
Organizations
currently play a minor role even in contentious cases
before the court. The Statute provides for certain
participation rights. According to Article 34,
para. 2, an Organization
may, on its own initiative, present to the Court a
memorial with its views on the matter at dispute. The court may request additional
information from that organization, or it can proprio
motu, or upon application of any party, request any
International Organization to submit information
– irrespective of whether this organization has previously contacted the
court.
A
furthere point of criticism concerns the lack of standing
of NGOs, private groups or individuals before the
Court. But there is no willingness to change the very
character of the ICJ and allow private parties to
become a party in a contentious case. This would leave
the classical concept of the ICJ as an international
inter-state court. The pressure by those groups for
access as amici curiae is more likely to yield results
in general. Again, as the behaviour of member States
in the WTO has shown, there is no political consensus
to adopt a reform along those lines. It is submitted,
however, that the Court would be free to accept private
statements within the framework of the Statute, if
it wished to do so.
The
last concern voiced, i.e. that there is no provision
that would ensure that the Court takes into account
the common interest in the environment, presents a
specific demand from environmentalists. The then Vice-President
of the ICJ Weeramantry, in his Separate Opinion to
the Gabcikovo Judgement, questioned whether is was
appropriate to use the rules of inter partes litigation
to determine erga omnes obligations. In his opinion,
the procedure of the Court, aimed at providing justice
and fairness between the parties, scarcely does justice
to rights and obligations in relation to the rest
of the world – “least of all in cases involving environmental
damage of a far and irreversible nature”. Principles of general international
law such as estoppel for the regulation of bilateral
relations may be appropriate in matters which are
of concern not merely to the parties, but to many
or all states.
Even
though it is framed as a general proposal, it appears to be nothing else than the quest for participation
rights of private groups or NGOs claiming to represent
these interests. Leaving aside the difficult question
of legitimacy, it may be noted that the Court has
occasionally stressed “the great significance that
it attaches to respect for the environment, not only
for States but also for the whole of mankind ...”. And there are instances,
where individual states have argued not only with
respect to their own individual rights, but also to
common goods. In the Nuclear Test case, for example,
Australia explicitly claimed that “the interference
with ships and aircraft on the high seas and in the
superjacent airspace, and the pollution of the high
seas by radio-active fall-out, constitute infringements
of the freedom of the high seas”.
The
problems outlined in this section are common to many
international dispute settlement fora. While the access
by international organizations is accepted, as shown, in the
more modern mechanisms, the situation with regard
to the participation of private groups is more or
less the same everywhere, which shows the general
reluctance of states to accept such proposals. Before
ITLOS, private parties may appear, but only in very
specific cases, special to the regime of the UN Convention
on the Law of the Sea (UNCLOS). In the WTO dispute
settlement mechanism, a rather restricted way of dealing
with unsolicited private statements has been developed.
None
of these mechanisms provides for any institutionalised
guarantee for taking into account erga omnes interests.
The very concept of a dispute and its settlement was
modelled on a bilateral relationship: a dispute is
said to exist where “the claim of one party is positively
opposed by the other”. Any proposal to amend the
Statute in this direction would not only prompt a
debate on the whole concept, but also meet considerable
objections by a majority of the states.
International
Arbitration and Environmental Disputes
If
States are unlikely to agree on changes of the rules
in the emphasised institutionalised contexts, it might
be worthwhile to focus on alternative dispute resolution
methods. The closest to adjudication is arbitration,
which is equally recognised in Article 33 of
the UN Charter as a means of peaceful settlement of
disputes.
In
international law in general, and in particular where
it related to the environment, arbitration has always
played an important role in the settlement of specific
disputes. The development of the law in that field
has profited to a great extent from this jurisprudence.
The Behring Sea Fur Seal arbitration between the United
States and the United Kingdom was probably the first
case where specific environmental issues were at stake,
namely the protection and preservation of fur seals,
the killing, capturing or pursuing of which was severely
restricted in the award. The famous Trail Smelter
case, decided in 1941/42, and the Lac Lanoux arbitration
are other well-known examples of the important contribution
of international arbitration to the application and
development of international law relating to the environment.
As
in international adjudication, arbitration requires
the consent of both parties. This is usually expressed
in the compromis, the difference to adjudication being
that, in general, there is no way to generally express
this consent through a unilateral declaration, as
is provided for in the optional clause in Article 36,
para. 2, of the Statute.
Most
recently, the Southern Bluefin Tuna case concerning
fisheries rights under a trilateral convention between
Australia, New Zealand, and Japan, was decided by
an arbitral tribunal, and two pending cases concerning
the MOX plant between Ireland and the United Kingdom were also submitted to arbitration.
These cases were instituted not by an agreed compromis
between the parties, but by a unilateral application.
Of
course – in strict legal terms – there has
not been a departure from the principle of consensus.
The consent of the parties had been expressed in advance
and in general, i.e. with regard to any dispute arising
out of the application or interpretation of an underlying
treaty instrument. Hence, arbitration is now used
as a means of compulsory dispute settlement. The most
elaborated system where this has been applied is the
1982 UN Convention on the Law of the Sea (UNCLOS).
Chapter XV provides for a variety of dispute
settlement fora, but in the absence of any agreement
and any reciprocal declarations of the parties, arbitration
is set as the default mechanism.
With
respect to the principle of consensus of the States
involved, arbitration has thus come close to international
adjudication. The reasons for the choice of arbitration
in the treaty negotiations have been different, namely
the great flexibility of this mechanism and the greater
influence of the parties on the procedure and even
the composition of the tribunal. Perhaps the most
striking advantage of arbitration in comparison with
the ICJ has been the significant speed with which
arbitral tribunals have handled their cases. This
is particularly important where matters of some urgency
are concerned, as may often be the case in disputes
concerning exhaustible or otherwise threatened natural
resources.
The
flip side of the flexibility, however, is, among other
things, uncertainty about the applicable procedural
rules, what may result in delays in constituting the
tribunal and rendering the award. In the view of this,
the Permanent Court of Arbitration (PCA), set up by
the Hague Conventions on the Peaceful Settlement of
Disputes of 1899 and 1907 and tasked to facilitate
legal and political procedures for international dispute
settlement, has adopted a set of “Optional rules for
arbitration of disputes relating to natural resources
and/or the environment”. These rules are based on
the UNICTRAL rules for international commercial arbitration, but adapted to reflect,
inter alia, “the public international law element
which pertains to disputes which may involve States
...”. They may be used by
every arbitral tribunal in any proceeding involving
States, international organisations, private entities
or individuals, provided that the parties have agreed
in writing that the rules would be applied. Thus,
inter-state cases of the type handled by the ICJ would
perfectly fall within the scope of application envisaged
by the drafters of these rules. Other cases involving
non-state actors could also be dealt with under the
auspices of the PCA and by reference to the environmental
rules.
Arbitration
in general, and the application of the PCA environmental
rules in particular, are not restricted to strict
inter-state disputes. The flexibility of that mechanism
does not apply to procedural questions only, but also
to the constellation of parties to a dispute. As long
as the rights and interests of third parties are not
prejudiced, any two or more parties – be it a state,
an international organisation, a multinational co-operation,
a non-governmental organisation, or a private group
or individual ‑ may agree to submit
a dispute to arbitration. Thus, one of the concerns
identified above is overcome, since the problem of
restricted locus standi is alien to international
arbitration.
More
problematic, though, is the question of intervention
by a third party. In arbitration, any interference
from an outside party would require the consent of
the parties. In the framework of adjudication, this
might be dispensable because of generally applicable
provisions like Articles 62 and 63 of the Statute
of the ICJ that provide for a opportunity to intervene
for any other Member State affected by the possible
decision. The PCA environmental rules contain some
adaptations to multiparty proceedings, but there is no access granted
for any other party to intervene. The only limit to
this is the so-called Monetary Gold principle, meaning
that no award may be rendered the very subject matter
of which would be the rights or duties of a State
which is not a party to the proceedings.
Arbitration
is to a wide extent subject to utmost party control,
and usually conducted in confidentiality. The PCA
environmental rules stress the latter point, and have
established an innovative and very elaborated mechanism
to safeguard the interests of the parties in securing
the confidentiality of certain information by establishing
the institute of a confidentiality advisor who would
have access to the information and report on it to
the tribunal. However, access for private
groups or NGOs to a proceeding as amici curiae will,
in general, not be granted except where the parties
agree on it.
Surprisingly
enough, the rules contain only one provision with
an essentially ecological/ environmentalist character
– the one dealing with interim measures of protection.
The tribunal may, in the absence of any other agreement,
“take
any interim measures including provisional orders
with respect to the subject matter of the dispute
it deems necessary to preserve the rights of any party
or to prevent serious harm to the environment falling
within the subject matter of the dispute.”
This
norm is modelled on the UNCLOS provision on provisional
measures. It reflects the specific situation of an
arbitration in adding that, even though serious harm
to the environment not being a violation of a party’s right can justify the indication
of provisional measures, this may only be done where
it relates to the subject matter of the dispute. The
tribunal is thus called upon to take into account
matters of interest erga omnes, although only in the
context of provisional measures.
The
other innovative feature of the environmental rules
are two rosters of eminent experts, administered by
the Secretary-General of the PCA: one of international
environmental law experts to be available as arbitrators,
and the second – the true innovation ‑
of international technical experts in the field of
the environment. Obviously, this is only
an administrative provision authorizing the Secretary-General
to receive nominations by member states of the PCA
and to compile the pertinent lists. It is not likely
that parties will stop soliciting their own experts.
But if a tribunal wishes to do so, it is now in a
much stronger position to proceed independently and
appoint an expert. It is still the tribunal
that ultimately has to assess the expert opinion and
render the final award, but the permanent availability
of previously nominated experts could facilitate recourse
to independent expertise and thus contribute to a
sound scientific basis of a decision.
All
other provisions of the Rules are merely of a facilitative
character for an effective and swift arbitration procedure
taking into account specific needs of typical participants
in those proceedings.
Conclusion
A
reform of the ICJ Statute is neither politically feasible
nor, in fact, needed for the Court to properly deal
with environmental disputes. It is not advisable to
go beyond this, for one should be careful to load
procedural instruments like the Statute, that are
supposed to be impartial and unbiased, with norms
of a rather substantive character, which can be perceived
to be slanted towards one party. Rules or provisions
to reflect ecological concerns would, in almost all
situations, be of advantage to one, and to the detriment
of the other party. The PCA environmental rules, like,
to some extent, the Statute of ITLOS, are a good example
that there cannot much be added to the rules.
There
is, however, no real need for a general reform of
the Statute. Certain deficiencies of the ICJ, which
may particularly concern environmentalists’ interests,
could be remedied within the current system. With
regard to the problem of duration, the Court has recently
taken far-reaching measures to shorten the average
time in which a case is decided. Likewise, it is within
the discretion of the Court to accept private statements
from amici curiae if it should consider it useful.
The demands for an amendment of the Statute, and likewise
the recent proposals to establish a new International
Environmental Court, fail to take into account
the reform potential of the existing law and institutions
and, as with arbitration under the new PCA environmental
rules, turn a blind eye on available alternatives,
while they are politically unfeasible. As a highly
flexible mechanism, international arbitration using
appropriate rules can fill a perceived gap and provide
for a means for all states to comply with the request
for the peaceful settlement of disputes relating to
the environment in Principle 26 of the Rio Declaration.
