1

Pre-submission Draft

REVISITING THE ARGUMENT FOR THE ESTABLISHMENT OF AN

INTERNATIONAL ENVIRONMENTAL COURT

EDAFE UGBETA*

Abstract

Recent years have witnessed intense debate concerning the need to establish

an International Environmental Court (IEC) to address global environmental

issues. Proponents and critics of this new court have presented a number of

arguments in support of their respective views. This paper joins in the debate

and makes an argued case for the establishment of the court. In doing so, the

paper re-examines the existing arguments and suggests that in spite of the

enormous contributions that the extant international judiciary has made to

the development of international environmental law, an International

Environmental Court, if established, would not only complete the institutional

framework that is required for modern global environmental governance, but

would also fill some of the obvious gaps in the existing system.

1. Introduction

Much academic effort has been spent over the last two decades or so on the discussion

about the need to establish a specialist environmental court, an International

Environmental Court1 within the United Nations. Since the late 1980s, perhaps April

1989,2 when the proposal for the creation of the court was first mooted in Rome by a

committee of experts coordinated by an erstwhile Italian Supreme Court Judge, Amedeo

Postliglione,3 the campaign for the establishment of the court has garnered considerable

* LL.B, LL.M (Kent), B.L, Environmental lawyer and Senior Associate at Aluko & Oyebode, Nigeria;

emu3@kent.ac.uk 1 Sometimes called ‘an International Court for the Environment’ or ‘World Environmental Court’ but

hereafter referred to as ‘an IEC or ‘the IEC’ for ease of reference. 2 See Catherine Zengerline, Greening International Jurisprudence: Environmental NGOs before International Courts, Tribunals, and Compliance Committees (Martinus Nijhoff Publishers 2013), 303. 3 O.W. Pedersen, ‘An International Environmental Court and International Legalism’ Journal of

Environmental Law 24:3, (2012), 547-548; see also S.M. Hinde, ‘The International Environmental Court:

Its Broad Jurisdiction as a Positive Fatal Flaw’ (2003) 32 Hofstra L Rev, 727, at 729-730.

2

support, with the most recent attempt being championed by the International Court for the

Environment (ICE) Coalition.4

However, while commentators appear to be in broad agreement that environmental

problems extend beyond national boundaries and therefore require international control,5

a number of observers do not support the call for the establishment of the IEC.6 For

instance, though conceding that the present international judicial bodies do not look

efficiently prepared to resolve serious international environmental issues, Hinde argues

that the establishment of an IEC, if vested with unlimited jurisdiction, would ‘lead to

inconsistent judgments among the many courts able to adjudicate the same environmental

problems, as well as a fragmentation of international environmental law, and exacerbate

the problem of forum shopping.’7 Sands argues that since disputing states hardly ever

agree to characterize disputes as completely ‘environmental’, it would be preferable to

constitute ‘a body of judges with a mix of general and specialized expertise’ and adopt a

practice similar to that of the Permanent Court of Arbitration by putting together ‘model

rules on arbitration of disputes relating to the environment and natural resources, which

rules take into account the particular characteristics of environmental disputes’ instead of

creating an IEC as suggested by some analysts.8

Jennings, on his part, advocates that rather than establish an IEC and, in so doing, further

proliferate international courts and tribunals, which would result in the fragmentation of

international law, the current international courts and tribunals should be strengthened to

handle cases that have environmental component since most international disputes

involve other fields of international law.9 More recently, whilst reflecting on the way and

manner international courts and tribunals contribute to the growth of international

4 The ICE is a company limited by guarantee registered in the United Kingdom; see ICE Coalition, ‘ICE Coalition Contribution to UN Zero Draft for Rio 2012’ (2011) available at ICE Coalition

website<http://icecoalition.com/> accessed on 09 May 2015; see also Pedersen, ibid @ 548. 5 Stephen Hockman QC, ‘The Case for an International Court for the Environment’ (Report of the ICE

Coalition, Sept. 2010), p.1 available at Six Pump Court website

<http://www.6pump.court.co.uk/publication/> accessed on 09 May, 2015; see also A.E. Dehan, ‘An

International Environmental Court: Should There Be One?’ 3 TOURO J.TRANSNAT’L L., 31. 6 For detailed reading on the arguments against the establishment of the IEC, see Ellen Hey, Reflections on

an International Environmental Court (Kluwer 2000) 1-14; see also G. Pring and C. Pring, Greening

Justice: Creating and Improving Environmental Courts and Tribunals (The Access Initiative, 2009), 17-18;

available at <http://www.accessintiative.org/resource/greening-justice> accessed on 10 May, 2015. 7 Hinde (n.3) p.728; see also pp.748-756. 8 Phillippe Sands, ‘Litigating Environmental Disputes: Courts, Tribunals and the Progressive Development of International Environmental Law’ (OECD Global Forum 2008) pp. 4-7; available at OECD Website

<www.oecd.org/> accessed on 10 May, 2015. 9 Judge Sir Robert Jennings, ‘Need for an Environmental Court?’ 20 Environmental Policy and Law (1992)

pp.312-314.

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environmental law, Stephens described the calls for the IEC as ‘naive’ and ‘quixotic’

because, in his view, the proposals for the new court are not innovative and introduce

nothing different to the present international judiciary.10

Notwithstanding the above criticisms, the purpose of this paper is to pinpoint practical

reasons in an argument that the campaign for the creation of the court has merit. In this

context, the focus of the paper will be two-fold; to highlight the role that the existing

international courts and tribunals have played in the development of international

environmental law, and to advocate that there remain many weaknesses in the current

system which may be remedied by setting up the IEC.11

In achieving this task, Section 2

of the paper explores selected themes that help shed light on the contributions of the

existing international judicial bodies to development of international environmental law.

Section 3 seeks to justify why there is a need today to introduce an IEC into the global

judicial scene. Drawing on observations made in Section 2, the paper concludes by

suggesting that an IEC should be established if the international judiciary is expected to

effectively play its role and deliver the legal solutions necessary for today’s daunting

international environmental challenges.

2. An Overview of the Existing International Judicial Institutions and their Role in

the Development of International Environmental Law.

Although it is beyond the scope of this paper to embark on a detailed discussion of the

role that the existing international courts and tribunals have so far played in the

development of international environmental law,12

it appears useful to attempt to identify

the existing international judicial bodies and briefly examine the extent they have

contributed to the growth of this field of law in the course of resolving international

disputes brought before them. To that end and in order to have a firm understanding of

how the subject developed before the advent of the contemporary international courts and

tribunals, it is appropriate to start with a bit of history. Long before the contemporary

10 Tim Stephens, International Courts and Environmental Protection (Cambridge 2009) pp.59-60 11 Hinde (n.3), p.738. 12But for a detailed study on the role of the existing courts and tribunals in the development of IEL see,

James Harrison, ‘Reflections on the Role of International Courts and Tribunals in the Settlement of Environmental Disputes and the Development of International Environmental Law’ (2013) Journal of

Environmental Law, 1-14; see also E. Fisher, B. Lange and E. Scotford, Environmental Law,(Oxford 2013)

Ch.10; P. Bernie, A. Boyle and C. Redgwell, International Law & the Environment (3rd edn, Oxford 2009)

pp.138-140.

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organized international courts and tribunals were established,13

environmental disputes

were already being settled via some kinds of ad hoc courts and tribunals. Indeed, it is well

settled amongst scholars that the origins of some of the modern principles of international

environmental law, including the rules on transboundary harm14

as encapsulated in

Principle 21 of the Stockholm Declaration of 1972 and Principle 2 of the Rio Declaration

of 1992, derive from the rulings issued by some of the ancient judicial bodies, notably the

arbitral tribunal that granted the final award in the famous Trail Smelter arbitration.15

Sixteen years after the Trail Smelter award was granted, another arbitral tribunal issued a

similar award in the Lac Lanoux arbitration that a state is under an obligation to use its

territory in a manner that it does not cause injury in the territory of another or ignore the

rights of another state.16

With these background issues in place, the existing international judicial institutions and

how they have assisted in the development of international environmental law will now be

briefly considered. Clearly, the upsurge of environmental awareness across the globe,

beginning, increasingly, from the 1972 Stockholm Conference brought with it a

significant number of international judicial institutions which were introduced to address

international environmental disputes.17

Prior to the after effects of the Stockholm

Conference, the International Court of Justice, established in 1945 as a successor to the

Permanent Court of International Justice, was the only permanent court with global reach

that adjudicated on environmental related disputes.18

The situation has, however, changed

over the years as the ICJ has now been joined by a great number of international courts,

created by enabling instruments of either the United Nations or other regional

international bodies.19

Specifically, the following are some of the visible contemporary

13 Starting with the establishment of the ICJ in 1945: for further reading on the creation of the ICJ, see the

page titled ‘court history’ at<http://www.icj-cij.org/court/>accessed on 11 May, 2015. 14 for detailed reflections on the influence of the rules on transboundary harm on the evolution of modern

principles of international environmental law, see Sumudu A. Atapattu, Emerging Principles of

International Environmental Law (Transnational Publishers 2006) Ch.1; P. Sands and others, Principles of

International Environmental Law (3rd edn, Cambridge, 2012) Ch.6; Bodansky, Brundee and Hey (eds), The

Oxford Handbook of International Environmental Law (Oxford 2007) Chs. 2 & 44. 15 USA v Canada, 33 AJIL (1939)182 & 35 AJIL (1941) 684. 16 Spain v France, 24 ILR (1957), 101. 17 See Atapattu (n.14), Ch.1 for the impact of the Stockholm Conference on environmental consciousness

across the globe See Sands (n.8), p.5; see also Hockman (n.5) p.2. 18 U. Beyerlin and T. Marauhn, International Environmental Law (Hart 2011) p.380; Sands, ibid. 19 See the comprehensive list of the existing international judicial bodies that adjudicate on international

environmental cases at the website of the Project on International Courts and Tribunals<www.pict-pcti.org>

accessed on 11 May, 2015.

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international courts and tribunals,20

apart from the ICJ, that have jurisdiction to entertain

environmental disputes:

The International Tribunal for the Law of the Sea (ITLOS): The 1982 United

Nations Convention on the Law of the Sea21

established the ITLOS under Annex

VI, along with other special arbitral tribunals created under Annexes VII and VIII,

as the judicial bodies having jurisdiction to settle all disputes between contracting

states, and other entities apart from such parties, in relation to the interpretation or

application of the Convention22

or any other dispute submitted in accordance with

any agreement which grants jurisdiction to the tribunal and which is accepted by all

the parties to the dispute.23

From 16 November 1994 when UNCLOS entered into

force to date,24

ITLOS has exercised its contentious and advisory jurisdictions in

respect of twenty-two cases,25

including the Southern Bluefin Tuna case,26

the Mox

Plant (Provisional Measures) case27

and the Land Reclamation case,28

which are

environmental matters.

The Dispute Settlement Understanding (DSU) set up by the Agreements

establishing the World Trade Organisation (WTO): This is another important

judicial forum created under the WTO framework; it is made up of a panel and an

appellate body29

seised with jurisdiction to settle disputes between WTO members

which touch on international trade and the environment.30

There are other international courts and tribunals that are involved in the settlement

of environmental issues worth noting, such as the World Bank Inspection Panel,

which has now established an exceptional jurisprudence for the settlement of all

disputes relating to the operations of World Bank, including environmental

20 Only the visible international courts and tribunals would be identified here but for a deeper study on that

subject, see P.R. Kalas, ‘International Environmental Dispute Resolution: Why We Need a Global

Approach’ (Intglim, August 2002) pp.1-4; Beyerlin and Marauhn (n.19) pp. 377-388. 21 Hereafter called ‘’the Convention or UNCLOS. See the full text of the UNCLOS at<http://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm>accessed on 12 May, 2015. 22 See ‘the tribunal’ page at ITLOS website< www.itlos.org.index/> accessed on 12 May, 2015. 23 See ITLOS Statute, Article 20. 24 As of the date of writing - 12 May, 2015. 25 See ‘Cases’ and ‘List of Cases’ pages at ITLOS website (n.22) above. 26 Australia and New Zealand v Japan (2000) 39 ILM 1359 27 Ireland v UK, ITLOS No.10 (2001). 28 Malaysia v Singapore, ITLOS No.12 (2003). 29 See the WTO appellate body in the US-Gasoline case, WTO Appellate Body Reports WT/DS2/AB/R, 22 April 1996, 17 and the role it played in the development of IEL. 30 See P. Sands and P. Galizzi, Documents in International Environmental Law (2nd edn, Cambridge, 2004) pp. 1001-1005; see also Sands (n.8) p.5.

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issues.31

Similarly, there is the International Centre for the Settlement of

Investment Disputes (ICSID) established in 1965 to facilitate the settlement of

investment related disputes between states and foreign private investors by means

of arbitration and conciliation.32

Increasingly, the ICSID has been involved in the

settlement of environmental disputes in the foreign investment context.33

Furthermore, the Permanent Court of Arbitration (PCA), which is an

intergovernmental arbitral organisation established in 1899 and ‘the oldest legal

institution dedicated to resolving international disputes’34

also settles international

environmental disputes provided that one of the parties to the dispute is a state.35

There are a number of regional international judicial bodies as well, such as the

European Court of Human Rights (ECHR), the Inter-American Court of Human

Rights (IACHR), the African Court of Human and Peoples’ Rights (ACHPR), the

European Court of Justice (ECJ), the Court of First Instance (CFI), the Central

American Court of Justice, inter-alia, which often deal with environmental matters

in their respective competences.36

What makes these international judicial bodies, particularly the ICJ,37

worth

mentioning in a discussion of this nature is that in their respective effort to settle

international disputes brought before them (whether in cases where the courts have

been invited to declare the customary international law obligations or treaty

commitments of disputing parties, as in the Nuclear Tests Cases,38

the Gabcikovo-

Nagymaros Project case39

and the more recent Pulp Mills case,40

or in disputes where

they have been called upon to render advisory opinions, as in the Legality of the Threat

31

Sands (n.8) p.5. 32 See ICSID page under the heading titled Arbitration at PICT website, (n.20) above. 33 Sands (n.8) p.5. 34 Hockman (n.5) p.2 35 For general reading on the role of the PCA regarding settlement of international environmental disputes,

see the PCA page under the heading titled Arbitration at PICT website (n.20) above; see also Hockman

(n.5) p.2. 36 See the pages concerning the courts mentioned above under the heading titled Regional Bodies at PICT

website for their respective role in the development of IEL. 37 As the ICJ has been shining the light for the other international courts with respect to declaring

international environmental norms, and its role so far in the development of IEL is unparalleled: see J.E.

Vinuales, ‘The Contribution of the International Court of Justice to the Development of International

Environmental Law: A Contemporary Assessment’ (2008) available at

<http://works.bepress.com/jorge_vinuales/2/> accessed on 12 May, 2015; see also the separate opinion of Vice-President Weeramantry in the Gabcikovo-Nagymaros Project case (n.39) below.

38 Australia & New Zealand v France, ICJ Reports (1974) 253. 39 Hungary v Slovakia, ICJ Reports, (1997) 7. 40 Argentina v Uruguay, ICJ Reports (2006).

7

or Use of Nuclear Weapons advisory opinion41

), they have consistently upheld and

deployed the principles of international environmental law in issuing decisions aimed

at preserving the global environment and the global commons42

and, in so doing, have

improved their environmental jurisprudence.43

Indeed, Birnie, Boyle and Redgwell

succinctly highlight the modern developments in the environmental jurisprudence of

the existing international courts in these words:

... the first decade of the new millennium has seen an unparalleled

growth in the environmental jurisprudence of international tribunals.

No longer is it necessary to squeeze every drop of life out of the

immortal trio arbitrations- Bering Sea Fur Seals, Trail Smelter and Lac

Lanoux – which have sustained international environmental law

throughout most of its existence. A modern account now has nearly

twenty cases decided between 1996 and 2007 on which to draw from.

By any measure this is a substantial jurisprudence. Equally remarkable

is the number of courts and tribunals which have contributed to the

jurisprudence. They include the ICJ, the PCA, and the ITLOS, but also

the WTO and the European, African and Inter-American human-rights

commissions and courts.44

3. Arguments for the Establishment of the IEC.

In spite of the significant role that the existing international judiciary has so far played

in the development of international environmental law, this section seeks to argue that

there remain justifiable concerns that call for the establishment of an IEC. In doing

this, the lacunae in the current system would be cited in appropriate circumstances.

However, by way of general background, it needs to be mentioned that while in one

breath critics of the proposed court have vehemently opposed the idea of establishing

the IEC (for the reasons highlighted in the introductory section of this essay and

perhaps a few others), the self-same critics in another breath frankly acknowledge that

there are deficiencies in the current international courts and tribunals such that they are

41 ICJ Reports (1996) 226.

42 Global commons means those parts of the earth ‘‘which lie above and beyond the recognized territorial claims of any nation’’ see C.D. Stone, ‘Defending the Global Commons’ in P. Sands (eds), Greening

International Law (Earthscan, 1993) Ch.3. 43 Sands (n.8), p.2. 44 See Bernie, Boyle and Redgwell (n.12) pp.37-39; see also Sands, ibid.

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not adequately equipped to tackle the mounting international environmental issues,45

particularly those arising from the causes and effects of climate change in modern

times.46

With that mentioned, let us now turn to pinpoint why the IEC should be

established.

i. The Need for a Specialized Global Adjudicatory Forum for International

Environmental Disputes.

In the manner it is presently conceived, the IEC would be a specialized global court to

adjudicate, exclusively, all international environmental disputes, including crimes

against the environment.47

At the present time, no such institution exist thus the

campaign for the creation of one. Now, looking at the calls for establishment of the

IEC through dispassionate lens, can any tangible reasons which make apparent the

need for the establishment of that court be found? Remarkably, as most observers

would know, the international community had previously considered this issue and had

seen the need for the court, hence the ICJ constituted a special seven-member Chamber

for Environmental matters in July 1993; regrettably, it never entertained any

environmental case before it was disbanded in 2006.48

Yet, notwithstanding the reasons

that have been provided for the closure of the ICJ’s Chamber for Environmental

Matters49

as well as the arguments against the creation of the IEC, it would be argued

in the succeeding paragraphs of this section that there are several obvious reasons

which make the creation of the court a matter of necessity in the present day.50

First, against the understanding that environmental problems are largely global and

need global control,51

it stands to reason that the mere absence of a specialized

international judicial body which serves as ‘a one-stop emporium’52

for the settlement

of international environmental disputes is satisfactory reason to call for the

45 See S.D. Murphy, Does the World Need a New International Environmental Court?, 32 Geo. Wash. J.

Int’l L. & Econ. [1999-2000], 343-347; see also Hey (n.6) 1-7; Hinde (n.3) p.727. 46 Jolene Lin, ‘Climate Change and the Courts’ [Legal Studies, 2012] pp. 35-57. 47 ICE Coalition, ‘An International Court for the Environment in the Reform of International

Environmental Governance, [2011]. This publication is available online under the heading ‘’The

Campaign – ICE at Rio +20’’ at ICE Coalition website<http://icecoalition.com/> accessed on 13 May,

2015; see also Hinde (n.3), 734-735. 48 Sands (n.14) p.172; see also Hockman (n.5), p.2. 49 Sands (n.8) p.5 argues that the ICJ’s Environment Chamber was closed because ‘‘no two states will

agree that a given matter is essentially environmental’’. 50 Seventeen views have been submitted in support of the establishment of the court; see Pring and Pring (n.6) 14-16. 51 See Hockman (n.5) p.1; see also Hinde (n.3) p.738. 52 Sir Robert Carnwath, ‘Environmental Litigation – A Way through the Maze?’ (1999)11 Journal of

Environmental Law, 1-13, at p.13.

9

establishment of a court of this sort,53

particularly in the 21st century that has witnessed

an unprecedented growth in the adoption of specialized measures and groupings, such

as the adoption of specialized environmental courts and tribunals (ECTS) by states,54

which are directed at finding feasible solutions to the daunting environmental concerns

of the present day.

Besides, if the ongoing quest by the international environmental community for a

specialized global environmental institution55

is considered broadly and realistically,

then the need to set up a global environmental court cannot be overlooked, as such a

court would be necessary to complete the institutional architecture that is required to

solve or, at least, mitigate the many problems apparent in the existing international

environmental judicial system.56

In fact, it has been suggested that should the current

push to establish a ‘World Environment Organization’ (WEO) yield the desired

outcome, such an organization would of necessity need a court, analogous to the

WTO’s dispute settlement structure, to settle environmental disputes contracting

disputing parties and which would also be called upon to clarifications on the parties’

treaty obligations.57

ii. Weaknesses in the Existing International Judicial Bodies.

Aside the fact that there is a need, in itself, to set up an IEC for the purpose of

completing the institutional framework that is required for today’s international

environmental challenges, the shortcomings evident in the existing system, as various

legal scholars have observed, also make the creation of the new court a matter of

53 See Hockman (n.5) 1-6; Hinde (n.3) 738; see also the views of Amedeo Postiglione, ‘A More Efficient

International Law on the Environment and Setting Up an International Court for the Environment Within

the United Nations’ 20 Envt’l. L. (1990) pp. 321-328. 54 See G. Pring and C. Pring, ‘Increase in Environmental Courts and Tribunals Prompts New Global

Institute’ (2010) Journal of Court Innovation, 11-21; See also Pring and Pring (n.6), 1-3; Dehan (n.5)

p.31-52. 55 B.H. Dasai, ‘The Quest for a United Nations Specialized Agency for the Environment.’ (The Round

Table, April 2012), 1-13; see also Frank Biermann, ‘Reforming Global Environmental Governance: The

Case for a United Nations Environment Organisation’ (Stakeholder Forum 2012) available at<

www.stakeholderforum.org> accessed on 13 May, 2015. 56 See S.A. Bruce, ‘International Court for the Environment: The Road Ahead to Opening its Doors’

(2012), 1-2 available at<http://icecoalition.com/the-court-pathways-to-the-court> accessed on 12 May, 2015. 57 ICE Coalition, ‘Environmental Institutions for the 21st Century: An International Court for the

Environment’ [2011] p.7, available at <www.stakeholderforum.org> accessed on 13 May, 2015; Also

Hockman (n.5) p.4.

10

urgent concern.58

For instance, whilst considering the numerous problems that plague

the existing international courts and tribunals, such as limited jurisdiction, restricted

access to non-state actors and inadequate environmental and scientific knowledge,

Riches and Bruce argue that the time might have come to seriously consider the idea of

creating an IEC.59

In the same fashion, whilst conceding that the current international

judicial bodies create a serious problem of forum shopping due to overlapping

international jurisdiction, Hinde advocates that the IEC be set up to solve that

problem.60

There are, to borrow Hinde’s memorable phrase, ‘numerous valid faults

found in the existing international adjudicatory system with regard to environmental

law’61

, however, over the following paragraph, only the very crucial concerns which

make the call for the introduction of the IEC a matter worth urgent consideration

would be discussed in more detail.

In this regard, it may be convenient to start with the problem of limited access to court

by non-state actors as this is clearly an issue that demands swift intervention at the

global level.62

Without doubt, there are more than enough international environmental

treaties, including the Rio Declaration and the Aarhus Convention,63

that recognise and

emphasise the involvement of all citizens, including private persons, NGOs and other

legal entities, in the all-important task of preserving the global environment for the

benefit of the present and future generations.64

These international environmental

documents, by dint of their provisions- notably Principle 10, Rio Declaration and

Article 9(3) Aarhus Convention - also seek to afford all citizens access to all forms of

administrative and judicial review mechanisms in environmental matters.65

In practice,

however, there appears to be various statutory or case-law obstacles which prevent

most citizens (most especially NGOs even though they are most noticeable promoters

58 Postiglione calls on the UN to urgently create the IEC to address the increasing environmental problems; see Postiglione (n.53) p.323 59 P. Riches and S. Bruce, ‘Building an International Court for the Environment: A Conceptual Blueprint.’

[2013] Governance and Sustainability Issue Brief Series: Brief 7, Center for Governance and

Sustainability. This publication can also be seen online at<www.academia.edu> accessed on 13 May,

2015; see also Hockman (n.5) 5-6. 60 Hinde (n.3) 748-756. 61 ibid, 756. 62 See Zengerling (n.2) pp.308-309. 63 The Aarhus Convention is officially known as the United Nations Economic Commission for Europe

Convention on Access to Information, Public Participation in Decision-making and Access to Justice in

Environmental Matters. It was convened in Aarhus, Denmark on 25 June 1998; available at

<http://www.unece.org/environmental-policy/treaties/public-participation/aarhus-convention.htm> accessed on 14 May, 2015. 64 See V.P. Nanda and G. Pring, International Environmental Law & Policy for the 21st Century,

(Transnational Publishers 2003) pp.43-53 65 ibid, 52-53.

11

of environmental causes)66

from accessing the existing international courts and

tribunals, hence the call for a new international court which would provide the much

needed standing to all concerned citizens.67

For instance, by the ICJ Statute, the ICJ’s

jurisdiction over environmental matters is restricted to rendering advisory opinions at

the requests of only states, organs of the UN or specialized agencies so authorized, and

litigation between state parties;68

non-state parties do not have standing to initiate or

defend cases, including environmental disputes, before the ICJ,69

and even then, the

court’s jurisdiction may only be invoked upon the consent of the disputing states.70

The same problem exists at the EU level where non-privileged applicants,71

such as

private persons, corporations, NGOs and other interest groups, are required to meet a

certain direct and individual concern criterion72

before they may bring environmental

matters in the EU Courts, even though Article 9 (3) of the Aarhus Convention seeks to

grant unrestricted access to judicial review mechanisms to all members of public. It is

worth noting, and indeed regrettable, that till date the EU courts, particularly the CFI

and ECJ, have refused to adopt a broad interpretation of the access to justice

requirements of the Aarhus Convention, as such no member of the public, including

NGOs, has been granted standing in environmental matters in the EU courts, except in

cases relating to access to information.73

The International Criminal Court (ICC) faces the same constraint as its jurisdiction is

restricted to claims instituted against natural persons. In other words, corporations and

businesses cannot be prosecuted for environmental crimes at the ICC.74

Because this

66 P.R. Kalas, ‘International Environmental Dispute Resolution and the Need for Access by Non-State

Entities’ 12 Col. J. of Int’l Env. L. & Pol, (2001) 191, at 208. 67

Hinde (n.3) p.745. 68 Articles 34, 65-66 Statute of the International Court of Justice available at <www.icj-cij.org/documents> accessed on 14 May, 2015. 69 K.F. McCallion and H.R. Sharma, Environmental Justice without Borders: The Need for an

International Court of the Environment to Protect Fundamental Environmental Rights, 32 Geo. Wash. J.

Int’l. L & Econs. (2000) 351 @ 359. 70 Hockman (n.5) p. 2. 71Within the EU legal system, EU institutions and EU member states are referred to as privileged

applicants while all natural and legal persons are known as non-privileged applicant; see Fisher, Lange

and Scotford (n.12) p.372-376. 72 See Greenpeace v Commission [1995] ECR 11-2205 and on appeal [1998] ECR 1-2305. 73 See generally Aarhus Convention Compliance Committee’s findings adopted on 14 April 2011 in

respect of ACCC/C/2008/32 submitted by ClientEarth which recommends that: ‘‘...it considers that a

new direction of the jurisprudence of the EU Courts should be established in order to ensure compliance with the Convention’’. See page 22 of the Committee’s findings available at

<https://www.unece.org/env/pp/pubcom.htm> accessed on 14 May, 2015; L. Kramer, EU Environmental

Law, (7th edn, Sweet &Maxwell 2011) 148. 74 Hinde (n.3), 745.

12

gap exists in the current forum, it has been proposed that a new court be created where

these parties can either initiate or defend claims relating to environmental crimes.75

Another major fault with the existing courts and tribunals is the absence of judges and

arbitrators having the requisite expertise and experience to adjudicate accurately on

both the law and the science in complex international environmental issues.76

This

concern has been cited by virtually all proponents of the IEC, and the much revered

ICJ appears to be at the receiving end in this respect, having been overtly criticized,

particularly with reference to the Pulp Mills case for its ‘failure to grapple with and

draw conclusions from the scientific evidence presented’77

to the extent that it has ‘said

that the judgment will increase doubts in the international legal community as to

whether the ICJ, as an institution, is well-placed to deal with complex scientific

questions.’78

Other problems facing the current international courts and tribunals, which the IEC

regime would resolve as expressed in the proposals for the creation of the court

include:

a) The absence of effective enforcement mechanisms and the issues of compliance

by states with their international environmental treaty obligations.79

b) The difficulty of underdeveloped and uncertain international environmental

rules and principles, and where to find precedent in international

environmental law.80

c) The difficulties associated with the high costs of litigating international

disputes and inefficiency leading to slow resolution of international

environmental disputes.81

In the view of all these considerations, especially the fact that the existing international

judicial system is fraught with all kinds of drawbacks which makes it unprepared82

to

provide the needed legal response, it seems therefore commonsensical to call for the

75 ibid, 735. 76 Murphy (n.46) p.343. 77 Hockman (n.5) p.2. 78 ibid. 79 Hinde (n.3) 746-748. 80 ibid, 741-744; See also the Hockman (n.5), pp. 4-7. 81 Hinde (n.3) 740-741. 82 Ibid, 740; see also Murphy (n.45) 347.

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establishment of an IEC which would solve or, at least, reduce these problems83

having

first fleshed out provisions in the Charter or Statute establishing the court, that

specifically and clearly address the problems.

4. How to Establish the IEC

Before it may be seen as exhaustive, it appears necessary to consider the question of

how the court would be formed. In this respect, two alternative means of realising the

IEC have been identified – that is, either by mutual agreement or by an international

treaty.84

As to the first means, an international treaty would not be necessary to set up the court;

what is required is simply the mutual consent of the parties to an international

environmental dispute to submit such dispute to the jurisdiction of an IEC, along with

the commitment that they would be bound by its constitution.85

Bruce suggests that this

is the ‘‘quickest, cheapest and easiest way’ to create the IEC, and that it is similar to

existing modes of creating private and ad-hoc tribunals in international law.86

As to the second means, this is a more intricate way to establishing the IEC as an

international treaty would be required. As Bruce again notes, ‘this process could start

by a recommendation at an international conference, such as the Rio+20, supported by

a UN General Assembly resolution authorizing the commencement of negotiations.’87

To organise the processes that would lead to the speedy creation of the court via this

mode, such as coordinating negotiations, organising campaigns for states support, and

ultimately drawing up a draft constitution for the IEC, the ICE Coalition, a company

limited by guarantee, was founded in the UK in the late 2008.88

The ICE Coalition

presently liaises with other like-minded individuals, organisations and groups, such as

the International Court of the Environment Foundation (ICEF), to amass both

international support and states sponsorship for the establishment of the Court.89

83 See Hinde (n.3) 738-740. 84 Bruce (n.59), p.2 85

ibid. 86

ibid 87

ibid. 88

See Pedersen (n.3) 548-549; see also Hockman (n.5), p.9. 89

Hockman (n.5) p.9; see also ICE Coalition (n.57), p.7-10.

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5. Concluding Remarks

As this paper has sought to demonstrate, establishing a specialized environmental court

within the United Nations is not only necessary to complete the institutional architecture

required for today's international environmental governance, but it is also a matter that

deserves urgent consideration having regard to the fact that the current international

adjudicatory institutions are fraught with all kind of barriers which make them ill-

prepared for the expectations from the bench.

In the light of these observations, it is recommended that an IEC that is fully equipped

to provide the legal solutions needed for today's daunting environmental challenges, be

adopted and deployed if the international judiciary is expected to effectively play its

role towards preserving the global environment, which, of course, is the ultimate goal of

the existing and emerging international environmental treaties. Such a court, created

preferably alongside a World Environmental Organization would strengthen the existing

institutional framework, fill the gaps apparent in the current international courts and

ensure the progressive development of international environmental law.

“Yesterday’s solutions worked well on yesterday’s problems, but the

solutions we devised back in the 1970s aren’t likely to make much of a

dent in the environmental problems we face today.”90

90 William Ruckelshaus, A New Shade of Green, Wall ST. J., 17 April 2010 – quoted by Pring and Ping,

(n.54) p.14.