In submitting their disputes over environmental harms to an international court or tribunal the parties to the row seek a remedy for the issue that triggered the action.  Environmental disputes are a relatively recent class of cases that have been litigated in international courts.  Indeed, it has only been over the past two decades that these disputes have found their way onto the dockets of international courts. 

On the other hand, the adjudication of environmental and natural resources cases by arbitral tribunals has long-standing origins.  Four of the earliest recorded cases are the arbitrations of the Bering Fur Seals Case (US/UK) (1893), the Chamizal Arbitration (US/Mexico) (1911), The Trail Smelter case (US/Canada) Arbitration (1941) and the Lac Lanoux case (Spain/France) (1957) dispute.  The first two disputes occurred prior to World War II, while in the Trail Smelter Case the United States instituted proceedings against Great Britain on behalf of Canada under the parties’ Boundary Waters Treaty, although the Permanent Court of International Justice was still nominally extant.  In the Lac Lanoux dispute the parties agreed to arbitrate the case.  They certainly could have sought to have their dispute heard by the International Court of Justice – which at the time had been in existence for eleven years.  Each of the foregoing arbitrations yielded a remedy.  In contrast, the International Court of Justice (“IJC”) has to date, at best, provided facile or questionable remedies in the environmental disputes that it has adjudicated.

         However, how have  the adjudication of environmental issues that have come before both the ICJ and the ITLOS fared?  Not well as can be seen from the following.

 

II. The Proliferation of International Courts

One other phenomenon that is worthy of mention is the proliferation of international

courts and tribunals.  The “danger of conflicting and incompatible norms and rules”,[1] raised by the growth of these international adjudicative bodies triggers an important issue: how do international environmental lawyers deal with the fragmentation of environmental law.  Moreover, states have not given-up on the ad hoc arbitration of environmental disputes.[2]  Thus, their awards may also fragment the law.  Nevertheless, the growth in the number of international courts and tribunals has naturally led to the development of a new jurisprudence, as well as an expansion of previous norms.  To that end, both practitioners and scholars who litigate or study environmental disputes, seek to learn what types of remedies these adjudicative bodies can provide for environmental harms.

Recent international instruments and court decisions have informed the legal community’s understanding of new environmental norms.  They have similarly enhanced “the legitimacy of international environmental concerns [while] confirming that global rules can play a significant role in contributing to the protection of shared environmental resources.”[3]  Concomitantly, international courts and tribunals have also functioned as (1) interpreters as well as illuminators of the meaning and cogency of various treaty regimes; (2) as adjudicative bodies that recognize the presence, as well as, develop customary environmental law; and (3) as creators of a more central position for environmental concerns within the international legal order.

A unique characteristic of international environmental law is that the courts and tribunals that are asked to adjudicate such claims, are generally confronted with a difficult issue: they must construe treaties that are not at all clear, and more often than not, “involve a high degree of compromise, or ‘fudge’”.[4]  In other words, the treaty-bodies present the international judiciary with a set of rules and principles that can be rather vague.  Consequently, when an international court is called upon to interpret vague norms, it is placed in a difficult position when it seeks to apply the norm, and the science, to the particular facts of a dispute. 

III. The International Court of Justice Cases

A.  The Gabĉikovo-Nagymaros Project Case

The foregoing is not an undemanding undertaking, as the ICJ displayed in the Gabĉikovo-Nagymaros Project case.  There, Hungary and Slovakia instituted the proceedings by filing a notice, known as a “special agreement”, with the Court’s Registry.[5]  A “special agreement” is an accord in which parties to a dispute request the Court to interpret their treaty.[6]  In the Gabĉikovo-Nagymaros case, the parties asked the ICJ to interpret a provision that concerned “the construction and operation of the Gabcikovo Nagymaros System of Locks”[7]  on the Danube River.

Although the Court had the opportunity to fashion a remedy, particularly since Hungary argued that the ecological risks of the Project – including reduced water flow, impairment to water quality, and the resultant loss of ‘fluvial fauna and flora’, were intolerable[8] – in the end it demurred.  In so doing, the ICJ failed to provide a remedy.  It likewise weakened existing law by not incorporating into international law, the concepts of sustainable development, the precautionary principle, and the law of environmental impact assessment (“EIA”).

Indeed, in his separate opinion, Judge Christopher Weeramantry argued that the majority erred in characterizing sustainable development as ‘a mere concept’.  Rather, he deemed it to be a ‘principle with normative value’, which necessitates a balancing between development and environmental protection.[9]  Moreover, Judge Weeramantry considered the principle to be ‘an integral part of modern international law’.[10]  He also noted that sustainable development should be considered a part of customary international law, due to its widespread acceptance by numerous states and the United Nations.[11]

B.  Pulp Mills on the River Uruguay (Argentina v. Uruguay)

In the Court’s 2010 Pulp Mills on the River Uruguay [12] judgment its judges similarly side-stepped the opportunity to endorse another doctrine, this time, the the “precautionary principle”.  Rather, the Court “strongly limited, if not eviscerated, the principle.”[13]  Indeed, the ICJ “reversed a trend within international environmental law of reading the precautionary principle broadly.”[14]  Moreover, the ICJ was of the view that although an EIA must be conducted there are no binding international instruments or standards for environmental impact assessments, and therefore

it is for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment.  The Court also considers that an environmental impact assessment must be conducted prior to the implementation of a project. [15]

The Pulp Mills dispute between Argentina and Paraguay commenced on May 6, 2006, when the Argentine Government instituted proceedings against the Government of Uruguay.  In its initial submissions, Argentina asked the ICJ to impose provisional measures (interim injunction), against Uruguay for the latter’s purported violation of a 1975 treaty entered into by these two states.  The provisional measures request was the first since 2003.  In its request, Argentina contended that the discharges of chemicals from two proposed pulp mills would adversely affect the River Uruguay, as well as the communities that line the river’s banks. [16]

According to the Argentine Government, the parties’ treaty obligated them to limit their discharges into their transboundary river.  The dispute therefore centered on the construction of the two mills on the Uruguayan side of the River Uruguay.  The Court denied Argentina’s request for provisional measures.

The foregoing judgments would appear to fly in the face of the importance that the Court has placed on environmental protection in the Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion.  There the ICJ found that

the environment is under [a] daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment.  The Court also recognize[d] that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.  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.[17]

Nevertheless, even in that opinion the ICJ was split 7-7 on the important issue of whether “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.”[18]  In essence the ICJ also failed to provide a remedy in that case.

The Court’s judgment in the Pulp Mills Case[19] also raises a perplexing point.  Although it failed to provide a remedy to the Government of Argentina, in dicta, the ICJ once again reaffirmed the importance of the environment.  The Court similarly urged the two Parties in the Gabčikovo Nagymaros Project dispute to “look afresh at the effects on the environment of the operation of the Gabčikovo power plant”.[20]  Likewise, in the Kasikili/Sedudu[21] boundary limitation case – that also arose out of a special agreement[22] – Judge Weeramantry, in dissent, underscored the effects of environmental protection.  

Indeed, in his view, even in delimitation disputes, the Court must take into account the wellbeing of the environment, and when necessary, seek remedies which may diverge from a particular geometric course provided by the parties’ in their boundary agreement.  Accordingly, Judge Weeramantry noted that

[i]f there is a natural reserve which, in the interests of the ecosystem and of biological diversity cannot be divided without lasting damage, this is a factor which the Court can no less ignore than a sacred site or archaeological preserve which must be maintained in its integrity if it is to be preserved.[23]

Given the ICJ’s horatory language with regards to the importance of the environment, it is both baffling and frustrating that when the Court has been given the opportunity to make good on that language it has not provided remedies for environmental harms.  The ICJ’s judgments however have not gone unscathed by commentators.  A number of well-respected scholars have been highly critical of the Court’s judgments in environmental cases.  They have found them to be wanting and devoid of any well-defined resolution.[24] 

One final point.  In resolving most environmental and natural resources disputes courts and tribunals generally employ equity or equitable methods.  For example, the ICJ has utilized equity in remedying boundary delimitation disputes, e.g., the Gulf of Maine Case.[25]  In other disputes concerning water allocation between states courts have similarly fashioned equitable remedies.  See e.g., Kansas v. Colorado[26] and Arizona v. California.[27]  Consequently, one would expect the Court to employ equity or equitable principles in its resolution of environmental cases.  However, it has thus far not done so, which is somewhat surprising.

In the next posting, the International Tribunal for the Law of the Sea will be discussed.

[1]           See Int’l L. Comm’n, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, PP5-25. U.N. Doc. A/CN.4/L.644 (July 18, 2003).

[2]           See e.g., In re Indus Waters Kishenganga Arbitration (Pak. v. India), Final Award (Arb. Trib. Dec. 20, 2013) (Permanent Court of Arbitration), available at http://www.pca-cpa.org/showpage .asp? pag_id=1392.  See also, In re The Review Panel Established under Article 17 and Annex II of the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, Findings and Recommendations of the Review Panel (PCA Arb. Trib. July 5, 2013), available at http://www.pca-cpa.org/showpage. asp?pag_id=1520.

[3]           Philippe Sands, Session 2.2.: The Policy Framework for Investment: The Social and Environmental Dimensions, in OECD, GlobalForum VII on International Investment, Litigating Environmental Disputes: Courts, Tribunals and the Progressive Development of International Environmental Law (Mar. 27-28 2008), available at http://www.oecd.org/investment /globalforum/40311090.pdf.

[4]           Sands, supra at 5.

[5]           See Article 36.1. of the Statute of the Court, which states “[t] he jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.

[6]           One other interesting point with regards to special agreement is that parties who had their disputes adjudicated by the ICJ had an average compliance rate of 62% with special agreement cases, having the highest compliance rate: 86% of those judgments were complied with.  Eric A. Posner & John C. Yoo, Judicial Independence in International Tribunals, 93 Calif L R (2005) 1

[7]           See e.g., Gabĉikovo-Nagymaros Project supra n. 10 at ¶ 15.

[8]           Gabĉikovo-Nagymaros Judgment at 35.

[9]           Ibid. at Separate Opinion at 88‐89, 90.

[10]         Ibid. at Separate Opinion at 89, 95.

[11]         Ibid. at Separate Opinion at 93, 95, 104.

[12]         Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14.

[13]         Daniel Kazhdan, Precautionary Pulp: Pulp Mills and the Evolving Dispute between International Tribunals over the Reach of the Precautionary Principle, 38 Envtl L. Q. 527 (2011).

[14]         Ibid. at 528.

[15]         Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14, at ¶ 205.

[16]         Ibid. at 11, 17.

[17]         Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I. C. J. 226, ¶ 29 (July 8).  (Emphasis added).

[18]         Ibid at ¶ 105.

[19]         Pulp Mills on the River Uruguay supra note 21 at ¶ 193.

[20]         Gabčikovo Nagymaros Project ibid. at p. 78, para. 140.  Cited in para. 194 of the Pulp Mills Case.

[21]         Case Concerning Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I. C. J. Reports, 1999, p. 1045.

[22]         Via their agreement the parties requested the ICJ to determine a boundary established by an 1890 Anglo-German Treaty. 

[23]         Kasikili/Sedudu Island at ¶ 91.

[24]         See e. g., Vaughan Lowe, ‘Sustainable Development and Unsustainable Arguments’ in A. Boyle and D. Freestone, (eds.); Erika Preiss, ‘The International Obligation to Conduct an Environmental Impact Assessment: the ICJ Case Concerning the Gabcikovo‐Nagymaros Project’ (1999) 7 New York University Environmental Law Journal 307; Liz Heffernan, The Nuclear Weapons Opinions- Reflections on the Advisory Procedure of the International Court of Justice, 28 Stetson L. Rev. 133 (1998).

[25]         Delimitation of Maritime Boundary in Gulf of Maine Area (Can/US), 1984 I.C.J. 246.

[26]         206 U.S. 46 (1907).

[27]         283 U.S. 423 (1931).

 

 

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