Environmental disputes are not new on the international stage; rather they date back to late 19th and early 20th century.[1] However, it was not the major concern for States in those times. In present times however, environmental issues take central stage and nations are more and more aware of the impact of these issues. Modern courts are increasingly dealing with matters concerning the environment;[2] however, they face certain lacunas while dealing with environmental disputes.

Hence, an effort is required for the creation of an international court of environment (ICE) dealing specifically in environmental disputes. The call for an ICE is not something new; it started in the 80's with Justice Postiglione who proposed a model for the formation of such a court.[3] Another was in 1994, by the name International Court of Environmental Arbitration and Conciliation,[4] to provide a forum for conciliation of environmental disputes. The third was a project named International Court for the Environment Coalition.

It consisted of an array of lawyers, academics and public servants who supported the formation of an ICE.[5] The International Bar Association has also shown support for the formation of an ICE. Hence, the document aims at exploring the existing lacunas and providing a case for the creation of ICE.

Existing Mechanisms and Drawbacks

The need for an ICE does not admit a total lack of intergovernmental or judicial bodies on an international level; however, it does mean that these were not as effective as one would assume. Over the years, countries through various treaties, agreements and similar environmental regimes (IER), have tried to solve the environmental damages because they had realized that humanity has only one earth. The most popular among them are the Multilateral Environmental Agreements ('MEA') which started with the 1972 Stockholm Declaration. Through this soft law, for the first time, environmental issues were addressed globally.

Through its principles, it declares that it is the responsibility of the state to prevent the harm caused to the environment. Later, the world saw a burst in environmental awareness with the 1985 Vienna Convention for the Protection of the Ozone Layer, 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, 1992 UN Framework Convention on Climate Change (UNFCCC) and the 1997 Kyoto Protocol and so on. These steps, nonetheless, not limited only to MEAs between a limited number of countries, but also bodies under the United Nations ('UN') and other non-state bodies formed over the years as well.

Regardless of the various MEAs and non-governmental organizations ('NGOs') cropping up, the fight between developed countries and developing counties regarding sharing of liabilities and responsibilities resulted that even willing and participating countries have no real incentive to comply with their self-declared goals and thus, environmental degradation continues and the world moves on a negative graph (as provided above).

Other than through MEAs, states also resorted to juristic bodies such as International Tribunals ('ICT') to , the most common examples being the Trail Smelter Dispute, 1905[6], . The 'next best thing' for the states was the International Court of Justice (ICJ).

Major contribution by the ICJ was the Corfu Channel Case,1949.[7] Some other notable cases were that of the Pulp Mills on River Uruguay(Argentina v. Uruguay), 2010 [8] Whaling in the Antarctic (Australia v. Japan) case, 2014 [9] and Certain Activities Carried Out By Nicaragua In the Border Area (Costa Rica v. Nicaragua), 2018.[10] Although the ICJ has witnessed a few cases dealing with damage to the environment, most rulings have not been in favor of those claiming damage.[11]

Interestingly, recognizing the increasing disputes related to environment, the ICJ created a special Chamber for Environmental Matters, 1993. However, it drastically failed and closed down because till 2006, i.e., during the thirteen years of existence, not a single case came to the Chamber.

Drawbacks
In spite of these great initiatives by the countries, there are certain lacunas which render them ineffective and further emphasize the need for an ICE. Primarily, MEAs are created taking into consideration an existing issue and yet it takes time to be actually effective, hence it would be a very specific solution with no future application. Secondly, all agreements are based on the willingness of participation, i.e., if a state is not a member, all the MEAs in the world will be ineffective.

Furthermore, there are no major incentives given in these MEAs which can encourage the countries to stay true to the agreements. Therefore, United States existed from the Kyoto Protocol easily. Thirdly, there is a lack of rigorous non-compliance mechanism in a number of MEAs; countries resort mainly to diplomatic negotiations, and sanctions only in the rarest cases.[12]

Further, the ICJ has very specific drawbacks which renders it ineffective in a number of environmental issues:

1. Only states have the competence:
   Article 34 of Statue for International Court of Justice ('Statute of the Court') enables only states to approach the Court. Thereby, if there is no trans-boundary impact of pollution by the State, no action can be taken against such activities. Or on the other hand, state is the wrongdoer, no non-state actor can go to the court. Now, this very reason, i.e., the incapacity of the non-state actors to bring the case was considered as the major reason for the death of the Chamber for Environmental Matters.
    
2. Jurisdiction:
   According to Article 36(1) of the Statute of the Court, the Court has jurisdiction only in two instance, first, by an agreement between the parties in dispute and second compulsory jurisdiction via declaration or the signing of treaty, thereby limiting its scope of jurisdiction. This limited scope has led to injustice in several cases, the 1995 Nuclear Test case was a good illustration of this limitation.[13]
    
3. Lack of specialized scientist body:
   Another area where ICJ lacks is specialized body. In the case of Gabcikovo-Nagymaros the court itself stated that environmental disputes invariably raise competing scientific claims.[14] These claims involves thousands pages of documents which need to the examined by Court. In order to do so, court sometime form as hoc bodies, but there is no permanent body which can deal with such claims. However, it is not a unique problem to the field of environment, but it definitely needs a specialized body.
    
4. Environmental claims do not arise in isolation:
   Environmental claims include other areas of law such as trade agreement in the WTO context, human rights norms or issues of general international law. Hence there is a need for a body of judges with general and specialized skills. According to one author, another reason for the failure of ICJ's Chamber of environment is that no State acknowledged that dispute is essentially environmental.[15]

A brief structure of an ICE

One of the principle ideas in a systematic structure for a working ICE includes the creation of a tribunal which would act as a precursor to a formal judicial court.[16] This would enable not only the states but also independent bodies to submit their disputes towards such a forum.

As far as formation is considered, ideally an international court would be more readily acceptable if it in association with an organization that deals specifically with the environment[17]; for example the United Nations Environment Programme. For the formation of ICE, independent framework providing its competence and powers would be a viable option.

Inspirations can be drawn from current international commercial bodies such as ICC, SIAC, and UNCITRAL etc.[18] The political mandate of the same would require attention as it would mean trespassing into a State's sovereignty, if non-state entities are to be given access to the court. However, States are more willing to grant compulsory jurisdiction to specialized courts.[19]

Allowing non-state entities to submit claims, surpassing the sovereignty of their respective State requires serious thought. A viable option could be to chalk out conditions for a non-state party to bring a claim such as exhaustion of all remedies in domestic courts, or the requirement of a minimum number of members etc.[20] It would also help to set up a body similar to a public prosecutor as majority of environmental problems are global in nature.[21]

The applicable laws for the same could be an adequate combination of IEL principles as well as general principles of International law. As environmental issues do not arise in isolation, limiting the scope will only hinder the functioning.

Hence, the panel for the same should then comprise of a wider array of professionals ranging from specialists in IEL and PIL as well as legal experts working hand in hand with scientific panels.[22] As mentioned above, dispute resolution in environmental matters, requires extensive fact finding and scientific research data which requires an independent panel of experts. Lastly, it is necessary to ensure that these judgments are binding and enforceable.

Associating ICE with international bodies such as UNEP would provide additional recognition to the decisions and would also help in forming an effective non-compliance mechanism, as monitoring such compliance would be carried out by such bodies. Counter-measures such as suspension of rights in IEL as well as trade sanctions could be considered viable.[23]

Conclusion
The importance of environment and the need for its preservation becomes more important day by day, at the same time the world also suffers from the lack of an adequate international body for resolving environmental disputes. In such times, the argument for the formation of a body to fulfill this requirement holds value.

Although ICE shows great promise, it faces certain hurdles. The primary being that the court would require signatory states to cede sovereignty over environmental matters if non-state parties are to be allowed to bring a claim. An ICE will have a stricter policies and mechanisms; therefore willingness of States to submit to it remains unknown. Though this paper provides a brief overview on the structure of an ICE, there are certain factors which require consideration. For example, funding and financing of the court is not discussed.

However, an ICE “could provide an important engine for the further development and refinement of international environmental law, including coordination between its composite elements and its relationship to other norms of international law”[24]

A step towards building ICE will not only renew the hope towards achieving sustainable goals but also strengthen the bridge between science and law. It will play a major role in unifying the myriad MEAs all across the globe. Lastly, the recognition of finite nature of the environment, the irreversibility of environmental damage and need for proper disposal of international environmental disputes asks for the development of a mechanism like ICE to provide a one stop solution.

End-Notes:

1. See, United States of America v. United Kingdom, Award, 15 August 1893, Volume XXVIII (2007) Reports of International Arbitral Awards 263-276; United States of America v. Canada, Award, 15 April 1935, Volume III (2006) Reports of International Arbitral Awards 1905-1982; France v. Spain, Award, 19 November 1956, Volume XII (2006) Reports of International Arbitral Awards 281-317.
2. Said Mahmoudi, Cesare P.R. Romano, The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach (The Hague: Kluwer Law International, 2000), 456 pages, Yearbook of International Environmental Law, Volume 11, Issue 1, 2000, Pages 796–800,
3. Amedeo Postiglione, 'A More Efficient International Law on the Environment and Setting up an International Court for the Environment within the United Nations, Environmental Law, vol. 20, no. 2, 1990, pp. 321–328.
4. Bruce, “The Project for an International Environmental Court”, in C Tomuschat, RP Mazzeschi and D Thürer (eds), Conciliation in International Law: The OSCE Court of Conciliation and Arbitration (Brill, 2016). At 20.
5. For detailed information, visit; (http://www.icecoalition.org/)
6. In the dispute between United States and Canada, Arbitration Tribunal elaborated that it is a state's responsibility to not damage environment outside its jurisdiction. this case is significant because this approach was taken by the Tribunal even before the Stockholm declaration.
7. In this case, court reaffirmed that it is the obligation of the State to not use or allow others to use its territory in such a way that it harms the rights of other states. Principle 21 of Stockholm Declaration is based on this and Trail Smelter's case.
8. In this case, Court recognized environmental impact assessment as a practice that has become an obligation of general international law. Environmental Impact assessment means is the idea that harmful impact of the project on environment should be analyzed before giving the approval.
9. In this case, the Court highlighted the responsibility of the one State party for the protection of interest of another State party to the convention. It was the first case, where court accepted that for the protection of global public interest, states collectively are liable. Hence one state party cannot breach a convention which is a system of collective guarantee and regulation. At the same time, court highlighted the importance of scientific body to determine environmental disputes.
10. It is the first case where ICJ renders environmental compensation.
11. Catherine Zengerling, Greening International Jurisprudence,(August,2013)https://brill.com/view/title/24158; Tim Stephens, International Court and Environmental Protection, 120, (2009). https://www.cambridge.org/core/books/international-courts-and-environmental-protection/01C87E1135F9B3F76238FF3B3109C827
12. F. Francioni, Dispute Avoidance in International Environmental Law, 63, Int'l Environmental Law and Policy Series, 229-243, (2003), https://www.ecolex.org/details/literature/dispute-avoidance-in-international-environmental-law-ana-071171/.
13. In this case, Australia and New Zealand moved to the ICJ to stop the testing of nuclear weapons, however before the case could be decided, France issued a declaration that the testing was complete, and no more such activities would occur. This exhausted the mandate of the court and hence could no longer proceed. The court did not consider the impact of the former tests on the environment.
14. See, E.g., Judgement in Case concerning the Gabcikovo-Nagymaros Project, 1997 ICJ Reports 7 et seq.,27,29-31 (September 25).
15. Judge Thomas A. Mensah, Law of the Sea, Environmental Law and Settlement of Disputes, 315, (Tafsir Malick Ndiaye & Rüdiger Wolfrum, eds., 2007).
16. Stephen Hockman, 'The Case for an International Court for the Environment', pg 9. (https://static1.squarespace.com/static/56c0ae80ab48de4417bd17fa/t/56d5b71362cd94808b9040a5/1456846612833/The+Case+for+an+ICE.pdf)
17. See, Karen Tyler Farr, ''A New Global Environmental Organization'', Georgia Journal of International and Comparative Law, Vol. 28, 2000, p. 493; Daniel Esty, ''The Case for a Global Environmental Organization'', in Peter Kenen, ed., Managing the World Economy, Washington, D.C.: Institute for International Economics, 1994, p. 287; and Catherine Tinker, ''Environmental Planet Management by the United Nations: An Idea Whose Time Has Not Yet Come?
18. Stuart Bruce, “The Project for an International Environmental Court”, in C Tomuschat, RP Mazzeschi and D Thürer (eds), Conciliation in International Law: The OSCE Court of Conciliation and Arbitration (Brill, 2016). At 25
19. Joost Pauwelyn, 'Judicial Mechanisms: Is there a Need for a World Environment Court' in W. Bradnee Chambers and Jessica F. Green (eds.), Reforming International Environmental Governance: From Institutional Limits to Innovative Reforms (United Nations University Press, 2005) 159
20. Ibid at 162.
21. Ibid at 163.
22. Stuart Bruce, “The Project for an International Environmental Court”, in C Tomuschat, RP Mazzeschi and D Thürer (eds), Conciliation in International Law: The OSCE Court of Conciliation and Arbitration (Brill, 2016). at 26.
23. Joost Pauwelyn, 'Judicial Mechanisms: Is there a Need for a World Environment Court' in W. Bradnee Chambers and Jessica F. Green (eds.), Reforming International Environmental Governance: From Institutional Limits to Innovative Reforms (United Nations University Press, 2005) 168.
24. Ibid at 169

Written By:

1. Abhishek Kundley - IV year student of Maharashtra National Law University, Nagpur and
2. Darshita Sethia - IV year student of Maharashtra National Law University, Nagpur