It is well-known that the issue of enforcement remains the Achilles heel of international law in general and international environmental law in particular. Given the rate with which natural resources are depleted and the number of species facing extinction is increasing the issue of enforcement warrants attention. Perhaps that is why Stephen Hockman QC, current deputy High Court judge and former chairman of the Bar Council, is proposing an international environmental court in yesterday’s Telegraph(calls for an international environmental court are far from new and have been aired on numerous occasions in the past). Hockman argues for the creation of an environmental court moulded on the ICJ, which will be able to enforce binding targets (hopefully) agreed to at the Copenhagen climate summit next year, enforce the “right to a healthy environment” and “fine countries or companies that fail to protect endangered species or degrade the natural environment”. While Hockman’s arguments are laudable and he deserves acknowledgment for raising the issue of enforcement (or lack thereof) of international environmental agreements, the possible creation of an international environmental court raises some issues.
Firstly, it is doubtful whether the international community can at all agree to such an institution. Given the deep-rooted conflicts which exist in international environmental law and policy, in particular with reference to climate change, it is highly doubtful that agreement can be reached with regard to the establishing of an international court. Not only does conflict exist between the developed and developing countries relating to the balance to be struck between economic development and environmental protection but it is evident that even within the developed world consensus is sometimes hard to come by (albeit this might be changing given president-elect Obama’s commitment to addressing climate change). One lesson learned from the recently created ICC is that if an international court is to be effective, it must enjoy full support from as many states as possible.
Secondly, the “right to a healthy environment”, which Hockman refers to, does not even exist under international law (see here for a recent paper on the issue). Although regional instruments recognise the right to the environment, the issue of an international human right to the environment is so contentious that it is equally doubtful that the international community is likely to create such a right anytime soon.
Thirdly, the issue of punishing countries and/or companies who fail to protect the environment represents further problems. For instance, the body of international environmental law currently in place lays down very few specific limitations on what constitutes environmental pollution. International environmental law does not operate with a binding system of maximum or minimum values of acceptable emissions. Thus, it is not clear what law this proposed court would actually enforce (apart from, as proposed by Hockman, the targets which will hopefully emerge from the Copenhagen summit). Furthermore, the best-established principle of international environmental law, constituting a customary norm, is the one stating that states have the sovereign right to, by and large, do what they want with their own natural resources. In this light, it is not clear what standards the court would apply in assessing what constitutes environmental protection.
Thus, although the call for an international environmental court is a laudable one, it raises a number of concerns. Obviously, this does not mean that such a court is not a good idea. However, given the difficulties that the ICC has had in actually pursuing cases, it is clear that a court is not going to be a panacea.