Objectives of the group in terms of debate and product:

- Assess whether an International Climate Justice Tribunal or alternatively an International Environmental Court is necessary or appropriate as a means to enforce states’ commitments to reduce greenhouse gas emissions.

- Analyze the strengths and weaknesses of the existing environmental tribunals.

- Agree on the creation of an international mechanism that can legally enforce the commitment of countries to comply with their responsibilities to humanity and to nature, including the commitment to reduce greenhouse gas emissions.

§ Agree on a strategy toward establishing such mechanism under the UN framework.

Principal questions:

- Is an International Climate Justice Tribunal necessary or appropriate?

- Should the tribunal’s jurisdiction be limited to enforcing commitments under the UNFCCC or should it also have the authority to enforce other multilateral environmental treaties? Alternatively, should its jurisdiction be limited to serious crimes against nature that are considered equivalent to a violation of human rights?

- Should the tribunal have universal jurisdiction or territorial jurisdiction, limiting jurisdiction to those crimes committed by a national of a state party or on the territory of a state party?

- Should the tribunal follow the complementarity principle of the ICC whereby the case may only be brought to the international tribunal if the state party is unwilling or unable to try the crime in a domestic court?

- Who should be able to bring complaints? Only states, or also non-state actors such as individuals, companies, and NGOs? If only states, then should non-state actors be allowed to express their opinion on a particular dispute?

- Should the tribunal set up an independent commission or public prosecutor, linked to a UN organization such as UNEP, to trigger procedures against a particular state or number of states?

- Should the tribunal be constituted as a UN body, or should it be an independent body?

- How should the tribunal be composed and who should decide its composition?

- How should the tribunal be financed?

- What relief can the tribunal grant and how should its decisions be enforced?

Rationale

- Under international law, States have an obligation to ensure that activities within their jurisdiction and control respect the environment of other States and areas beyond national control. This obligation is contained in many of the present international environmental treaties.

- Unfortunately, many of these international environmental treaties lack the mechanisms to enforce state party obligations.

- The UNFCCC contains no mechanisms for trying or sanctioning countries that fail to comply with their commitments to reduce greenhouse gas emissions.

- The polluter and user of natural resources should be held accountable for the environmental harm caused by their activities.

- The scale of legal responses must correspond to the scale of the problem.

Precedents: existing legal enforcement mechanisms of International Environmental Law

Various tribunals and dispute resolution mechanisms currently exist to solve international environmental disputes. Below is a list of the most relevant mechanisms:

International Court of Justice (ICJ)

o The ICJ is the judicial arm of the United Nations and the only international court with universal jurisdiction. All UN member states may bring a case for all subject matters involving a dispute between states. However, both states must agree to its jurisdiction ex ante or ad hoc.

o Non-state actors can be neither complainant nor defendant. However, states may take up the case of an individual before the ICJ.

o The role of the ICJ is to settle legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies.

o In 1993, the ICJ appointed a Chamber for Environmental Matters, composed of 7 of the 15 ICJ judges. Use of the Chamber requires the agreement of both parties and the ICJ can appoint assessors and scientific experts to assist with scientific questions related to the environment. The Chamber has yet to be used.

o Some decisions and advisory opinions relating to the environment include the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, and Judgment in the case Concerning Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997, on the Danube Dam Project.

o Under the UNFCCC, Art. 14, a State Party may submit their disputes to the ICJ.

o In 2002, the Pacific island nation of Tuvalu contemplated suing the United States in the ICJ for its refusal to ratify the Kyoto Protocol. It decided not to do so after recognizing the difficulties of winning such a case.

Permanent Court of Arbitration (PCA)

o The PCA is neither a standing court nor a judicial organ. It is an arbitration body whose dispute resolution rules are based closely on the 1976 UN Commission on International Trade Law (UNCITRAL) Arbitration Rules and the 1980 UNCITRAL Conciliation Rules. The PCA has 110 member states.

o The PCA is independent from any environmental organizations and conventions.

o In 2001, member states adopted the Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment. They can be used by and against states, intergovernmental organizations, NGOs, multinational corporations, and private parties, as long as the parties agree that their dispute would be referred to arbitration under the Optional Rules. The Rules are based on UNCITRAL Arbitration Rules but also allow for the participation of environmental experts. PCA has handled several environmental cases including disputes under the UN Convention for the Law of the Sea (UNCLOS).

o Under the UNFCCC, Art. 14, State Parties may arbitrate in accordance with procedures adopted by the PCA.

World Trade Organization (WTO) Dispute Settlement system

o Where parties fail to seek a consensus solution, the WTO Dispute Settlement Body (DSB) establishes a panel to hear the dispute. If a measure is found to be inconsistent with WTO obligations, the member has to comply with the ruling and the recommendations, typically by removing the offending measure.

o The DSB can impose retaliatory trade sanctions for non-compliance.

o Environmental disputes have included the Shrimp-Turtle Case (1998) and Beef-Hormones case.

UN Convention on the Law of the Sea (UNCLOS)

o UNCLOS, which governs virtually all aspects of the law of the sea, provide a range of dispute settlement mechanisms in Part XV, some of which are compulsory and binding.

o Where parties fail to reach a consensus, they are obligated to settle the dispute through the International Tribunal for the Law of the Sea (ITLOS), the ICJ, or an arbitral tribunal.

o Environmental disputes have included the Southern Bluefin Tuna case.

Regional Forums

o Inter-American Court of Human Rights and the Inter-American Commission on Human Rights

- In 2005, the Inuit Circumpolar Conference (ICC) submitted a petition to the Commission seeking relief from violations of the human rights of Inuit resulting from global warming caused by greenhouse gas emissions from the United States. The petition urged the Commission to recommend that the United States adopt mandatory limits to its emissions of greenhouse gases and co-operate with the community of nations to prevent dangerous anthropogenic interference with the climate system. The petition also requested the Commission to declare that the United States has an obligation to work with Inuit to develop a plan to help Inuit adapt to unavoidable impacts of climate change, and to take into account the impact of its emissions on the Arctic and Inuit before approving all major government actions. The Petition was dismissed for insufficient evidence of harm.

o African Court on Human and Peoples’ Rights

o European Court of Human Rights (ECHR)

o Court of Justice of the European Community (ECJ)

Ethical Opinion Tribunals

o Permanent People’s Tribunal

o Latin American Water Tribunal

Preliminary Proposals

- Establishment of an International Environmental Court

o The idea of an International Environment Court (IEC) was first proposed in 1989, at the conference of the National Academy of Lincei in Rome. A draft Statute of the International Environmental Agency and the International Court of the Environment was presented at the UNCED Conference in Rio in 1992. See http://www.icef-court.org/base.asp?co_id=51.

o More recently, an IEC has been promoted by the UK group ICE Coalition, advocating for the creation of an environmental court molded on the ICJ, which will be able to enforce binding targets, enforce the right to a healthy environment, and “fine countries or companies that fail to protect endangered species or degrade the natural environment”.

o The risks associated with creating an entirely new tribunal is the potential for overlapping jurisdiction with existing international tribunals and the lack of financial resources to ensure an effective institution.

- Establishment of an International Climate Justice Tribunal

o In October of 2009, a preliminary hearing of the International Climate Justice Tribunal was held in Cochabamba, Bolivia, to hear seven cases regarding the impact of climate change and the violation of communities’, peoples’ and Mother Earth’s rights. The tribunal is a response to the absence of mechanisms and institutions that sanction crimes related to climate change. It originates from organized civil society rather than the State, and its rulings seek to have moral, ethical, and political implications. The tribunal aims to construct the necessary force to convince governments and multilateral entities to assume their responsibities with regard to equity and justice.

o In October of 2009, climate justice tribunals were also held in other parts of the world, including the Asian People’s Climate Tribunal in Bangkok, where the aim was to examine the culpability of developed countries for global warming and claim damages for the hardships inflicted on the people of Asia.

- Reform of the International Court of Justice (ICJ)

o The newly established environmental chamber could be used to enforce environmental obligations; however the ICJ has limited enforcement powers due to need for parties to agree to its exercise of jurisdiction and the lack of monitoring authority to ensure compliance with the decisions.

o The ICJ statute could be reformed in order to strengthen its enforcement powers.

- Reform of the International Criminal Court (ICC)

o The ICC allows the prosecution of individuals for the commission of the most serious crimes of concern to the international community: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.

o The jurisdiction of the ICC could be expanded to cover environmental crimes.

o However, critiques have noted that the inclusion of environmental crimes might water down the seriousness of other human rights violations. Nor does the ICC have particular expertise in international environmental law.

References

UNFCCC compliance http://unfccc.int/kyoto_protocol/compliance/items/2875.php

International Court of Justice http://www.icj-cij.org/court/

Permanent Court of Arbitration http://www.pca-cpa.org/

International Tribunal for the Law of the Sea http://www.itlos.org/

International Criminal Court http://www.icc-cpi.int/

ICE (International Court for the Environment) Coalition http://www.environmentcourt.com/icecoalition.php

International Court of the Environment Foundation http://www.icef-court.org

Ellen Hey, Reflections on an International Environmental Court, Kluwer Law International (2002).

Joost Pauwelyn, “Judicial mechanisms: Is there a need for a Weold Environment Court?” in Reforming International Environmental Governance: From Institutional Limits to Innovative Reforms, UNU Press (2005).

Latin American Water Tribunal http://www.tragua.com

The Johannesburg Principles on the Role of Law and Sustainable Development adopted at the Global Judges Symposium, Johannesburg, South Africa, on 18-20 August 2002 http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=259&ArticleID=3115&l=en

Rebecca Elizabeth Jacobs, “Treading Deep Waters: Substantive Law Issues in Tuvalu’s Threat to Sue the United States in the International Court of Justice,” Pacific Rim Law & Policy Journal (2005).

Inuit Petition to the Inter-American Commission on Human Rights to Oppose Climate Change Caused by the United States of America http://www.inuitcircumpolar.com/index.php?Lang=En&ID=316

Bolivia Rising, on the Preliminary Hearing of the International Climate Justice Tribunal http://boliviarising.blogspot.com/2009/11/international-climate-justice-tribunal.html

Asian People’s Climate Tribunal http://tcktcktck-asia.org/?cat=7

Climate Justice Programme http://www.climatelaw.org/

Climate Justice Now http://www.climate-justice-now.org/

Center for International Environmental Law http://www.ciel.org/Hre/programhre.html

About these ads