Contributions of the International Court of Justice to International Environmental Law - Essay Example

?Environmental Law Question a. Contributions of the International Court of Justice to International Environmental Law Previously, when compared toother international legal issues, the work of the International Court of Justice (ICJ) was not as prominent.1 Even so, the ECJ did make important contributions toward the development of environmental protection law at the international level during the 1990s. The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226 was one such contribution. At the request of the United Nations, the ICJ stated that there was no universal code of law prohibiting the threat or use of nuclear weapons although the threat or use of nuclear weapons was contrary the United Nations Charter.2 Thus the ICJ established that an international convention pursuant to the United Nations Charter could be used to establish parameters for regulating and controlling the use of nuclear weapons which can have devastating consequences for the environment. In particular Judge Weeramantry discussed environmental issues relative to the threat and use of nuclear weapons. Judge Weeramentry specifically noted that the use of nuclear weapons “endangers the human environment in a manner which threatens the entirety of life on the planet”.3 Judge Weeramentry went on to state that although there was no binding international law relative to the use and threat of nuclear weapons, based on its destructive nature and the threat to human life, health and the environment in general, there was sufficient basis in international laws particularly humanitarian laws to outlaw the use and the threat of the use of nuclear weapons.4 The main contributions of the ICJ in terms of international environmental law is divided into the Corfu Channel case and the Nuclear Tests case and the Barcelona Traction case. These cases essentially establish the international law with respect to transborder environmental damages and the introduction of the doctrine of erga omnes. In this regard, the ICJ held in the Barcelona Traction case: An essential distinction should be drawn between the obligation of a state towards the international community as a whole, and those arising vis-a-vis another state in the field of diplomatic protection. By their very nature the former are the concern of all states. In view of the importance of the rights involved, all states can be held to have a legal interest in their protection; they are obligations erga omnes.5 The significance of this ruling is that the ICJ found a basis by which a state, despite the absence of a specific duty under international law or convention, has a duty generally to protect the environment not only within its territory, but beyond its borders. This is referred to as the doctrine of actio popularis.6 The doctrine of erga omnes expands and reinforces the duty arising under the doctrine of actio popularis by holding that states all have an interest in protecting the entire international community. The doctrine of erga omnes is thus closely related to the doctrine of actio popularis although they are different in terms of the extent of a state’s duties relative to its own territory and beyond. Erga Omnes typically refers to conduct that is outlawed in terms of aggression and humanitarian laws. It has been suggested however, the doctrine of erga omnes can be applied to international environmental law.7 Indeed it was argued by the dissenting opinions of the ICJ in the Nuclear Tests case that given the atmospheric contamination originating form a nuclear test it could be argued that the question of a state’s obligation to protect the environment for the benefit of the international community: Is one that may be considered capable of legal argument and a proper subject of litigation before this court.8 It can therefore be argued that the ICJ has established some semblance of a legal basis by which one state may bring an action to prevent environmental damages to the international community by another state. This may not be limited to nuclear tests and can thus be applied to cases where massive pollution is threatened.9 The Corfu Channel case adds to the ICJ’s dialogue on international community protection and the respect of state sovereignty. In this case it was determined that any conduct by another state in the exercise of its sovereign rights which intrudes into the territory of another is an unlawful exercise of sovereign rights.10 Thus the ICJ has established a legal parameter where practices in one state that threatens to cause or actually causes environmental damages in another state is actionable by the state to whom damages are threatened or actually occurs. In fact that ICJ ruling the Corfu Channel case, although not deliberately applicable to environmental protection is a repetition of an environmental ruling. The environmental ruling is contained in the Trial Smelter win which it was held that under international law, “no state has the right to use or permit the use of its territory” in such a way as to “cause injury by fumes in or to the territory of another” or to the “properties or persons therein” in circumstances where the consequences and the harm is serious and “established by clear and convincing evidence”.11 Thus the ICJ’s contribution to the development of international environmental law was to construct international law and to tie the consequences for environmental destruction within the framework of existing international law and obligations between states and to the international community. b. The European Court of Justice’s Approach to Environmental Protection within the European Community. It has been argued that the European Court of Justice (ECJ) has been entirely active in shaping and influencing the policies and principles of environmental protection with the European Community.12 Although the word environment is not a part of the original EC Treaty, the ECJ has ruled that the Community had the authority to implement statutes relative to environmental issues.13 In the Commission of the European Communities v Italian Republic, the commission took action against Italy when it failed to properly implement a Directive regulating and controlling the contents of detergents and the sulphur levels in liquefied fuels. Italy responded by arguing that the Treaty did not confer upon the commission the authority to make laws on environmental issues. The ECJ responded by stating that Directives formed a part of the Council mandate to remove all barriers to free trade within the community. Thus Directives had direct effect on the functioning of the common market.14 Moreover, the ECJ went farther to state that environmental protection was a compulsory requirement of the Community legislators.15 ECJ cases demonstrate that the ECJ is prepared to be flexible in its interpretation of the various provisions of the EC Treaty and its complimentary statutes to ensure that the Environmental policies of the Community are given full and effective effect.16 The amended EC Treaty with the insertion of Article 100a clearly intends to enable the implementation of secondary legislation for the protection of the environment.17 Article 100a specifically provides for the Council to adopt laws that can be broadly interpreted to respond to environmental issues. Moreover, Title VII of the amended EC Treaty specifically provides the legal basis for creating EC environmental protection law.18 Demonstrating its flexibility relative to the proper implementation of environmental laws, the ECJ ruled in Case C-155/91 Commission v Council 17 March 1993 measures intended to protect the environment require a Community approach because in the absence of a Community wide common approach to environmental protection, competition could be distorted contrary to the goals of the EC Treaty.19 Flexibility was once again demonstrated in Case 440/05 Commission v Council Judgment 23 October 2007. In this case the Council implemented a Framework Decision under Title VI of the EU Treaty relative to cooperation between community police and the judiciary in criminal issues. The Framework was aimed at improving the criminal regime within the Community with respect to enforcing laws prohibiting ship-source pollution. The Framework Decision called upon member states to take measures that reflected the nature of the ship-source pollution and the extent of its environmental damages and to ensure that criminal penalties served as a deterrent.20 The Commission challenged the propriety of the Framework Decision, arguing that it contravened the powers conferred upon the Council by the EU Treaty. The ECJ ruled that it was the court’s responsibility to ascertain whether or not administrative acts complied with the Treaty and do not represent an abuse of powers. However, the ECJ ruled that pursuant to Article 80(2) of the EU Treaty which relates to maritime transportation, the Community was competent to take all steps necessary for improving safety in maritime transport.21 Similarly in Case C-176/03 Commission of the European Communities v Council of the European Union 13 September 2005 it was held that while criminal matters were matters left to national authorities and outside of the jurisdiction of the Community, there was an important exception. The exception arose in circumstances where it was necessary to deliver criminal penalties that were effective, deterrent and proportionate for dealing with grave offences against the environment. In such a case, the Community may call upon member states to implement these penalties so that its rules relative to environmental protection are effective.22 The ECJ’s flexible approach to promoting environmental protection within the wider objectives of free trade and integration of a common market is said to correspond with the explosion of environmental concerns beginning in the 1980s. Previously, the ECJ focused its attention on the sharp and decisive promotion of free trade and fair competition (Jacobs, 2006). An obvious turn around in the ECJ’s approach was in Case 240/83 Association de Defense des Bruleurs D’huiles Usages [1985] ECR 531. In this case the ECJ a national court had inquired whether or not a Council Directive governing the disposal of oil waste was consistent with free trade, fair competition and the free movement of goods pursuant to the goals of the Treaty.23 The ECJ responded that free trade, the free movement of goods and fair competition were not “absolute rights”.24 These rights were necessarily subject to “certain limits justified by the objectives of general interest pursued by the Community” if the relevant rights “are no substantively impaired”.25 The ECJ went further to add that protection of the environment was an “essential objective” of the Community.26 Having regard to the development of environmental protection case laws on the part of the ECJ the position in Case 240/83 was repeated to the present. The ECJ essentially takes a flexible and broad approach to the interpretation of the EC Treaty and its subsequent amendments to give effect to the EU’s environmental protection policies. Question 2: The Integrated Pollution Prevention and Control Regime: The Command and Control Model as an Effective Pollution Control Mechanism in the UK The Integrated Pollution Prevention and Control (IPPC) is the long title of Council Directive 2008/I/EC codifies all of the amendments to Directive 96/91/EC.27 The IPPC sets standards for industries and sectors with a high potential for pollution in the Community. Member states are therefore required to ensure protection of the environment in general; promote non-toxic use of technology so as to reduce waste; promote innovative behaviour by permitting industries to take responsibility for finding effective remedies.28 The UK carried over its policies of command and control relative to the environmental protection regime within the IPPC framework. In this regard, the command factor refers to the establishing of standards for “potential polluters” and their obligation to adhere to these standards.29 Control refers to the rigid “monitoring and enforcement” of standards.30 The UK’s Parliamentary Office of Science and Technology, reports that command and control under the IPPC has experience “some success” particularly in the reduction of “air and water pollution”.31 Nevertheless, command and control has been generally criticized as too rigid and thus questions its ability to meet the IPPC’s requirement of industry innovation in developing satisfactory solutions. Moreover, the implementing control elements of the IPPC framework and the UK’s environmental protection policy historically have proven costly and complex.32 Wolf and Stanley offer an explanation for the UK’s difficulties with respect to command and control. The command and control factors are the UK’s most significant regulatory framework for regulating and controlling pollution and environmental damages generally. In order for command and control to be effective, administrative functions are required to have the ability to incorporate “the bureaucratic task of processing” licences and permits to pollute and notices of action relative to pollution issues that have been pointed out by regulators.33 Administrative functions also need to be in a position to actively police the compliance with the licences, permits and notices and any other regulatory standards.34 Historically however, the UK has been essentially reactive in the area of environmental protection. The UK’s government past and present has persistently demonstrated that it was more prepared to respond to pollution problems as they arise and this has been complicated by a “layer on layer” command and control regime between 1863 and 1972.35 During this time, the UK’s anti-pollution regime was characterized by fragmentation, complexity and an “unwieldy patchwork of separate controls”.36 Over the previous thirty years of the 20th century and during the first ten years of the 21st century, the UK’s government have been some attempt at achieving “a more integrated and coherent set of regulatory controls”.37 For instance in 1995 legislators implemented the Environmental Act 1995 which created the Environment Agency.38 The 1995 Act gave effect to an announcement made by then Prime Minister Tony Blair who said that the government’s primary objective was the creation of a body that would take responsibility for protecting the environment generally and would cull together all pollution control efforts that impacted air, land and water.39 This was a significant departure from the previous practice which distributed responsibility for pollution control among various government factions: Her Majesty’s Inspectorate of Pollution; the National Rivers Authority; the Waste Regulation Authorities and local authorities. Each of these agencies were responsible for control elements of the UK’s environmental protection regulatory regime and the control authority was in turn conferred upon each agency by specific statutory provisions. However, with the implementation of the Environmental Act 1995, the duties of these regulatory agencies were vested in the Environment Agency.40 Thus the fragmented approach to command and control made it difficult for industries to follow and to comply with. They were subjected to rules and regulations from different agencies. Thus the government in 1991 took the position that: the time was right for the creation of a new unified body, which would effectively provide not only greater co-ordination of environmental protection but would also provide a ‘one stop’ approach to pollution control, thus simplifying the burdens on industry.41 Despite the government’s position and the establishment of the Environment Agency, many of the problems that created confusion and fragmentation in the past continue. Environmental command and control is not as centralized as intended. As it is, local authorities continue to exercise a degree of control as well as the UK’s larger sewerage and water companies. Local authorities continue to be involved in planning environmental protection and are involved in air pollution, hazardous material, nuisances and contaminated property.42 For the most part the direct and indirect involvement of local authorities in informed by a pollution control regime that viewed command and control as the backbone of pollution and environmental control regimes generally. This mentality necessarily calls for policing and monitoring of industry standards and thus holding offenders accountable. The result is, the government continues to want to be visible in its policing and monitoring of environmental protection policies and laws. This would account for the continued involvement of local authorities despite the implementation of the Environmental Act 1995 and the introduction of a unified body, the Environment Agency in 1995. However, West argues that the command and control approach can be counterproductive when too rigidly applied. West suggested that there is now a prevailing perception that “sees involvement of markets as crucial to environmental protection” and emphasizes “the need for the economic value of nature to be recognized and consequently valued”.43 As West added: This strain of thought emphasizes the disconnect between the structures of private and public (or open-access) ownership systems and claims it is this disparity which fuels environmental degradation.44 Command and control regulatory systems of environmental protection tent to be resistant to a new approach that would encourage the commercial value of nature. It is coercive and demanding and as such does not effectively encourage a perception of the economic value of nature and preserving its integrity. West suggest that rather than command and control systems of environmental protection, governments could promote a public perception of the value of nature by allowing for some measure of benefit to those who follow a particular standard that protects nature.45 This may obviously be accomplished by the introduction of tax concessions for companies that are environmentally conscious. Not only would this reduce the costs that are typically associated with policing, monitoring and enforcing under the current command and control regime, it would encourage compliance with governments’ environmental protection policies and laws. However, West does not take account of the companies that have more to gain in terms of profits by dumping toxins into the environment and producing goods in a way that pollutes the environment. Many of these companies will not be encouraged to temper these practices unless tax incentives or some form of financial reward is provided for companies who are environmentally conscious.46 It would therefore appear that the current punitive approach encapsulated by the command and control regime is more appropriate, although not flawless. The current regime takes the view that if companies face stiff penalties and fines that reduce their profits, they may appreciate the economic value of producing goods that are consistent with industry standards that are aimed at protecting the environment. The UK government is currently attempting to relax its command and control approach to the protection of the environment under the IPPC regime. Over the past decade a number of New Environmental Policy Instruments (NEPIs) have been implemented. These instruments are aimed at facilitating a flexible approach that marks a departure from or a relaxation of the command and control system.47 These instruments reflect a combination punitive and rewards systems calculated to encourage the perception that preserving nature has economic value. For example the Market Based Instruments are designed to reverse or reduce injurious practices by raising taxes for those who do not reduce harmful emissions and using the proceeds to fund “environmental projects”.48 Another example is the Landfill Tax which places charges on waste disposal to landfills. The idea is to encourage those who produce waste to reduce waste and to find innovative remedies for disposing of waste and to consider methods of recycling.49 It therefore follows that the UK is now realizing that its previous approach to command and control has limited success when rigidly and aggressively pursued. Greater attention is now being turned to some degree of self-regulation by the imposition of economic benefit and at the same time, economic losses for those who do not attempt to preserve the environment. Bibliography 1. Barcelona Traction Company case Belgium v Spain (1970) ICJ Reports, 4. 2. Case 302/86 Commission v Denmark 1988, ECR 4607. 3. Case 187/87 Saarland v Minister of Industry 1 CMLR 529. 4. Case C-155/91 Commission v Council 17 March 1993 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61991CJ0155:EN:PDF (Retrieved 2 December, 2011). 5. Case 440/05 Commission v Council Judgment 23 October 2007. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0440:EN:HTML (Retrieved 2 December, 2011). 6. Case C-176/03 Commission of the European Communities v Council of the European Union 13 September 2005. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62003J0176:EN:HTML (Retrieved 2 December, 2011). 7. Case 240/83 Association de Defense des Bruleurs D’huiles Usages [1985] ECR 531. 8. EC Directive 2008/1. 9. Environmental Act 1995 (UK). 10. Fitzmaurice, M. (1996). “Environmental Protection and the International Court of Justice”. Cited in Lowe, V. and Fitzmaurice, M. (Eds.). Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings. Cambridge, UK: Cambridge University Press. 11. Jacobs, F. (2006). “The Role of the European Court of Justice in the Protection of the Environment.” Journal of Environmental Law, Vol. 18(2): 185-205. 12. Joined Cases 91& 92/79 Commission of the European Communities v Italian Republic, 1980, ECR 1099. 13. Lancaster, M. (2010). Green Chemistry: An Introductory Text. Cambridge, UK: The Royal Society of Chemistry. 14. Nuclear Test case (19840 ICJ Reports 253. 15. Parliamentary Office of Science and Technology. (January 2004). “Postnote: Environmental Policy and Innovation.” Number 212: 1-4. 16. Sands, P. (2003). Principles of International Environmental Law. Cambridge, UK: Cambridge University Press. 17. Schemmel, M. L. and Regt, B. (1994). “The European Court of Justice and the Environmental Protection Policy of the European Community.” Boston College International and Comparative Law Review, Vol. XVII (1): 53-83. 18. The Corfu Channel Case, UK v Albania, (1949) ICJ Report, 4. 19. Trial Smetler Case US v Canada Awards of April 16, 1938 Reports of International Arbitral Award Vol. III, 1905. 20. West, S. (2010). “Command and Control: Are Market Mechanism Capable of Delivering Ecological Integrity to REDD?” Law Environment and Development Journal, Vol. 6(3): 300-319. 21. Wolf, S. and Stanley, N. (2010). Wolf and Stanley on Environmental Law. Oxon, UK: Routledge. Read More