THE ROLE OF AN INTERNATIONAL COURT FOR THE ENVIRONMENT

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Institute of Public International Law and Comparative Public Law

2001

rok

Abstract

Even since the Rio Summit of 1992 threats and damages to the environment, environmental

catastrophies and destruction are going on, despite of all intensified endeavours on the national and

international level to avoid and prevent environmental pollution. As deleterious effects very often

pervade across national borders - as manifested for instance by the appearances of climate

change and deforestation, pollution of international watercourses and basins as well as of the seas

by oil pollutants or radiation - these transnational/transboundary problems can only be mastered by

international cooperation of all parts of the international community and society. To achieve the

target of an optimum and fair use of natural resources, i.e., of sustainable development, is the

unique challenge at present, inter alia, for national and international lawyers. In interdisciplinary

cooperation with other sciences they have to offer innovative legal instruments, to develop

progressive environmental laws and international agreements and to guarantee in particular their

implementation and execution. To combat the existing huge deficiency in the application of legal

norms, besides the creation of an effective administrative infrastructure, the tool of judicial control

by independant institutions is indispensable and of vital importance for the future. Although national

jurisdiction is unrenounceable, often it manifests a lack in the application of international law as

evidenced by practice and numerous recent comparative law studies. Cases like Chernobyl,

Mochovce, Temelin, Soboth and Mururoa, to name but a few, reveal that lawsuits of the individual

victim against the foreign polluter before domestic courts are fruitless for manifold reasons, such

as immunity from jurisdiction or enforcement, or the ordre public rule. National judges are very

hesitant to apply international environmental law, as they are presumably not so proficient in it.

Therefore, in our world of globalisation and interdependance the task of judicial control can be

fulfilled only by an International Court for the Environment having mandatory jurisdiction.

As the existing courts, such as the International Court of Justice, the International Tribunal for the

Law of the Sea, the Courts of Justice of the European Community, the European Court on Human

Rights and the International Criminal Court cannot offer an optimum solution at present - although

playing a very important complementary role for environmental dispute resolution - the idea to use

the Permanent Court of Arbitration, The Hague (PCA) as proper forum, finds worldwide growing

support by academics, lawyers and governments. As an institution with a 100 years history, being

well recognized and accepted by 91 UN Member States, the PCA is a unique and flexible dispute

settlement instrument offering preventive as well as reactive mechanisms. By a comprehensive

set of optional, procedural rules concerning inquiry/fact-finding, mediation, conciliation and

arbitration, it grants - besides States and International Organizations - also to non-state-actors and

private parties, such as Non-Governmental Organizations, businesses, environmental interest

groups and individuals legal access and a ius standi. Allowing all parts of the national and

international society to take part in the dispute resolution process it implements participatory

democracy which is indispensable for the solution of environmental problems, as stressed

vigorously by Agenda 21. The pending PCA Draft Rules for Arbitration of Disputes Relating to

Natural Resources and the Environment certainly will contribute to an enhanced, effective control

of the state of the environment and to enrich the development of environmental law. Nevertheless,

to strenghten the position of this Court - which only by agreement of the parties has jurisdiction -

to enable it to collect swiftly more practical experiences in the field of environmental protection, the

political will and support of all governments of the international community of states is strongly

needed.

Keywords dispute settlement, implementation of environmental treaties, international court for

environment, international environmental law, ius standi of private persons, judicial control, legal

access, legal instruments, permanent court of arbitration, responsibility,

transboundary/transnational environmental threats and damages