Chernobyl nuclear plant accident ….. Bhopal chemical plant accident …Exxon oil spill off Alaska …. .BP oil pipeline leakage in the Gulf of Mexico …. Burning of oil wells in Kuwait by retreating Iraqui forces …..
The list is only a few of the major environmental disasters that have occurred in recent years. Out of those incidents arose conflicts and disputes relating to numerous physical, economic, social and political factors: transborder pollution, climate change, ozone layer’s reduction, waste disposal in bodies of water and on land, transport of hazardous wastes, serious threats to biodiversity, genetically modified organisms, desertification, deforestation and drought, nuclear accidents or accidents at sea, to name a few. Where do victims bring suits to claim environmental justice ?
Unknown to many is the existence for over twenty years now of an International Court of the Environment Foundation based in Rome (Italy) which works actively and untiringly for support to create one such world court to fill a significant gap in environmental governance through law. The latest affirmation for such a need came via a call for action from lawyers and environmental law organizations around the world which recently met in Limoges (France). They appeal to world leaders to “create judicial mechanisms for environmental conflict resolution including an International Court of the Environment.”
At present, international organizations, environmental associations, non-governmental organizations (NGOs) and potentially affected individuals are not granted direct access to the International Court of Justice at The Hague (The Netherlands). Only States have direct access and not the individuals who are the direct victims of environmental destruction. And, how can the World Bank, for example, be held legally accountable for its participation in an oil and pipeline project if that project were to result in environmental harm? In that connection, take note that in recent times, international financing institutions such as the International Monetary Fund and regional development banks have become the object of ire of NGOs and even some government agencies due to development projects perceived as destructive of the environment.
As proposed, the following parties may appear before the International Court of the Environment: (a) Individuals; (b) Non-governmental organizations and environmental associations; (c) States; (d) Supranational organizations such as the European Union and the Asean; and (e) International organizations under the UN and the individual organs of the UN.
Through the last twenty years, a number of fora, symposia, meetings and conferences were held to debate on the pros and cons of creating a world court on the environment. The debates focused on issues about which, somehow, some conclusions, more or less, were drawn. Among them:
*The principle of universality vs. territorial sovereignty – Territorial sovereignty should be relaxed and adapt to new demands as environmental threats respect no State borders. The air we breathe, the flow of rivers and groundwater aquifers as well as species of plants, animals and micro-organisms know no boundaries.
*The individual as subject of international law – This position will have to change too under the influence of numerous interdependent factors, e.g., enormous increase in world population, explosive and spontaneous migratory movements everywhere including the lot of environmental refugees, the limited resources in terms of energy and the phenomenon of planetary pollution. How can international law remain oblivious to the individual this 21stt century?
*The place of the human right to the environment in international law—Judicial decisions in many States already recognize the individual’s right to the environment and provides indirect evidence of comunis opinio. Nevertheless, the best interpretation is the one which regards the environmental right as a traditional human right to be guaranteed by the State. This is the interpretation used by the Philippine Supreme Court in the landmark case of Oposa et al vs. DENR Secretary.
*Access to environmental justice – While it is commonly known that States themselves may commit or tolerate environmental crimes, it is advisable and realistic to work towards strengthening judicial guarantees for effectively protecting the rights of the individual to a healthy and undisturbed environment. Likewise, the evolution of the concept of environmental crime, the widening liability law for environmental damages and the application of the pollution-pays-principle could make a new court necessary.
The proposal for an International Court of the Environment is not merely a slogan or, much less, the creation of a duplicate of the International Court of Justice (substantially, a body for arbitrating between States) but a new institution, one that is missing today, directed mainly at protecting individuals in environmental cases.
*Ambassador Tolentino spearheaded the formulation of the Philippine Environment Policy (PD 1151), Philippine Environment Code (PD 1152) and helped develop the country’s environmental impact assessment (EIA) system. As a UN consultant on environmental law, he participated in the progressive development of UNEP’s environmental law plan now known as Montevideo Programs I,II and III.