The United Nations the key organization that connects Human Rights with environmental protection across the globe. Although no article of the UN charter is solely dedicated to the protection of the environment, however, its social and economic provisions manifest that human rights are inextricably linked with a healthy environment.[1]Principle 1 and 21 of the Stockholm Declaration exteriorize the duty of the state to protect the natural resources within its territory and also principle 1 limits the action of the state to exploit its resources as well by highlighting that the right to live with dignity and environment are intertwined.[2]
International Court of Justice is one of the 6 principal organs of the UN for resolving disputes submitted to it by the state member. The contribution of ICJ in the development of International Environmental Law is immense because of its wide jurisdiction. It has the authority to deal with such cases that are not only brought to its notice through the state but extends to give an advisory opinion in all legal matters brought by the General Assembly and the Security Council.[3] The court had few occasions to deal with cases involving the question of environmental protection as the main concern. However, it has marked a milestone by delivering a fairly recent judgment in 2012 opening the scope of the scientific approach in dealing with environmental issues. The contribution of ICJ in the development of international Environmental Law can be divided into two parts before and after the epoch of StockholmDeclaration.[4]
The Court had the opportunity to set a precedent in environmental law as early as 1949 in the Corfu Channel Case where the court held one of the guiding principles which were later integrated as principle 21 of Stockholm Declaration[5] and Principle 2 of Rio Declaration.[6] The case involved a dispute between United Kingdom and Albania where the naval ships of UK were severely damaged when it hit mines laid in the river bed of Corfu Channel. The Applicant, UK in this case alleged that it was the duty of the state Albania to take the onus for the damage to naval ships because it owed a responsibility in International Law to other states for the direct damage which arises out of the action or omission of discharge of its duty. The court, in this case, expounded the principle of sic uteretuoutalienum non laeda[7]and held:
“Every State has an obligation not to allow knowingly its territory to be used for actscontrary to the rights of other States.”[8]
It is pertinent here to point out that the cases dealt by ICJ did not contain any environmental matter directly prior to 1973. Interestingly, right after the Stockholm Conference, the court dealt with first case containing some environmental undertone.[9] The interim relief by the court in the case of Nuclear Tests (Australia v. France; New Zealand v. France) hauled important question into the picture related to the effect of the nuclear test on the environment but before the court could give a final verdict, the French government withdrew the program of its nuclear test.[10]However, this case is one of the important cases till present because during the oral preceding the arguments advanced by the representatives of Australia and New Zealand surmised the environmental impact of the tests conducted by countries and how it leads to the degradation of environment magnets the attention to environmental protection and new laws related to the aftermath of such tests resulting into radio-active-fallout.[11]
Similar question arose during the proceeding of Legality of the Threat or Use of Nuclear Weapons in 1996 forwarded to the court to obtain an advisory opinion by the General Assembly.[12] The parties to proceeding during the course of the argument unfolded different dimensions of the possible threat to the health of humans by evoking principle 21 of the Stockholm Declaration.
The court held 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 thegeneral 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 and thus, the court cannot prohibit the use of nuclear weapon but the duty lies on the shoulder of such state to assess the impact of their action respecting the principles laid down in Articles 35, paragraph 3, and 55 of Additional Protocol I provide additional protection for the environment and related principles to prohibit long term and severe damage to environment.”[13]
In 2006, the Court found itself in deeper water while dealing a major case involving environmental issue as its main feature in Pulp Mills on the River Uruguay (Argentina v. Uruguay), where Argentina demanded the relief alleging that the natural resources shared by the two states are at risk due the establishment of two pulp mill at the bank of the river Uruguay which was in contradiction to the 1975 bilateral statute of the River Uruguay.[14] The Court did not order for suspension of the construction of pulp mills but adduced the mandatory environmental assessment principle by an in-depth study of sustainable economic development.[15]
As a step forward to protect the environment being an intangible part of the right to life, the Court established a permanent environmental chamber in 1993 with a view to establishing a permanent body solely dedicated to the study of further and advancement in international environmental laws across the globe.[16] However, due to the lack of any set laws in the field and lack of cases where the environmental issue arises as to the main cause of action the said chamber was abolished in 2006.[17]
The crucial development in the International Environmental Law is the contribution of the Whaling in the Antarcticcase[18] in 2014 and Costa Rica v. Nicaragua[19]in 2018. ICJ prohibited whaling by Japan in the Antarctic Ocean carried in the name of a research program after a thorough study of the international convention for the Regulation of Whaling (ICRW), 1946. By approaching the alleged violation of three provisions of the ICRW scientifically through establishing a panel of experts from Japan and Australia, the Court has set an example of advanced modus operandi with the evolution of international law.[20]
It gave an important interpretation of Article VIII of the convention of 1946, “the parties may grant to any of [they are] nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research”.[21]
The Court held that Article VIII although gives freedom to the State to grant permission of whaling for the purpose to conduct research but such permission and interpretation of ‘the purpose of research’ cannot be on sole discretion of the State.[22] The Court however held that JAPRA II is a research program but the purpose of the program was mala fide on the basis that it could not meet the requirements of the plan submitted to the scientific body for conducting the research and use of factory ship in the prohibited area in the Southern Ocean Sanctuary.[23]
The recent development in 2018 in Costa Rica v. Nicaragua is an important “precedent for recognizing conservation interests and ecosystem services.” The case brought into light the necessity of protection of rainforest and wetlands from exploitation for the economic advancement of the country.
The Court stated that “damage to the environment, and the consequent impairment or loss of the ability of the environment to provide goods and services, is compensable under international law,”[24]
It can be undoubtedly concluded that the role of the International Court of Justice is unparalleled in the demesne of Environmental Law. Although initially, the court didn’t deal on entirely pure environmental issues, however, it has contributed immensely in spreading awareness about the importance of a healthy environment for the benefit of the symbiotic relationship that we share with the environment. With the advancement in technologies, the environment is at great risk today and ICJ has propelled the need of the establishment of a permanent body for further studies for protecting the right of the environment.
[1]https://www.unenvironment.org/explore-topics/environmental-rights-and-governance/what-we-do/advancing-environmental-rights/what-0
[2]http://www.un-documents.net/unchedec.htm
[3]https://sociedip.files.wordpress.com/2013/12/the-role-of-the-international-court-of-justice-in-the-development-of-private-international-law-hans-van-loon.pdf.
[4]https://www.airuniversity.af.edu/Portals/10/ASPJ_French/journals_E/Volume-07_Issue-3/andresen_e.pdf.
[5]Report of the United Nations Conference on the Human Environment, Stockholm, 5–16 June 1972, UN Doc.A/CONF.48/14/Rev. 1, 5.
[6]Report of the United Nations Conference on Environment and Development, Annex I, A/CONF.151/26 (Vol.I).
[7]“One should use his own property in such a manner as not to injure that of another.”
[8]Corfu Channel, Merits, Judgment, I. C. J. Reports 1949, 22.
[9]Steinar Andresen, The Role of International Courts and Tribunals in Global Environmental Governance, ASPJ Africa & Francophonie – 3rd Quarter 2016.(available at https://www.airuniversity.af.edu/Portals/10/ASPJ_French/journals_E/Volume-07_Issue-3/andresen_e.pdf)
[10]HisashiOwada, International Environmental Law And The International Court Of Justice, available athttp://ias.jak.ppke.hu/hir/ias/200634sz/owada.pdf
[11]Nuclear Tests (Australia v. France; New Zealand v. France), Order of 22 June 1973, I. C. J. Reports 1973,
106 and 142.
[12]Supra 10.
[13]The legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I. C. J. Reports 1996 (I), 241.,
emphasis added.¶ 29.
[14]Pulp Mills on the River Uruguay (Argentina v. Uruguay), Application Instituting Proceedings filed in the Registry of the Court on 4 May 2006, ¶15. (text available at www.icj-cij.org).
[15]HisashiOwada, International Environmental Law And The International Court Of Justice, available athttp://ias.jak.ppke.hu/hir/ias/200634sz/owada.pdf
[16]International Court of Justice, press release, 19 July 1993, 4.
[17]Stephens, International Courts and Environmental Protection.
[18]Whaling In The Antarctic (Australia V. Japan), Application Instituting Proceedings filed in the Registry of the Court on 31 May 2010. (available at https://www.icj-cij.org/en/case/148/institution-proceedings).
[19]Construction Of A Road In Costa Rica Along The San Juan River (Nicaragua V. Costa Rica), Application Instituting Proceedings filed in the Registry of the Court on 22 December 2011.(available at https://www.icj-cij.org/en/case/152).
[20]https://www.asil.org/insights/volume/18/issue/9/australia-v-japan-icj-halts-antarctic-whaling#_edn2.
[21]International Convention for the Regulation of Whaling of 1946, Dec. 2, 1946 (entered into force Nov. 10, 1948), available at http://iwc.int/private/downloads/1r2jdhu5xtuswws0ocw04wgcw/convention.pdf.
[22]https://www.icj-cij.org/en/case/148.
[23]Id.
[24]https://www.iucn.org/news/world-commission-environmental-law/201804/icj-renders-first-environmental-compensation-decision-summary-judgment.
This Article Written by Aastha Singh, Student of Chanakya National Law University
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