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Does the world need an International Courtof Environmental Justice?

Makoto Igarashi

本論文の筆者と内容について

帝京大学法学部助教授　則　武　輝　幸

本論文は、本学法学部卒業生である五十嵐真君が、2000 年に英国

HULL 大学大学院に提出した修士論文である。筆者五十嵐君は、

1992 年４月に本学法学部に入学、96 年３月に卒業した。在学中の 94

年から 96 年にかけては、本職担当の講義や演習を履修し、国際法に

ついて研鑽を積んでいる。本学卒業後は、単身渡英し、96 年 10 月に

英国 ESSEX 大学言語学部英語学科に入学して英語の習得に努め、翌

97 年６月に卒業、同 97 年 10 月には同大学大学院政治学部国際関係

論学科に入学し、翌 98 年６月に Diploma Award（修士論文執筆資格）

を取得して卒業した。一時帰国の後、1999 年８月に HULL 大学大学

院法学部国際公法学科に入学、翌 2000 年９月に卒業し、同年 11 月に

法学修士号（LL.M.）を授与された。帰国後は、2001 年４月から８

月まで国連開発計画（UNDP）東京事務所でインターンとして勤務

し、続いて、同年８月から 2002 年 11 月までは、参議院議員の私設政

策担当秘書（安全保障・開発援助・環境・エネルギー担当）を務め

た。現在、保守新党の職員として働いている。

一三八

Does the world need an International Court of Environmental Justice? （9）

本論文のテーマは、司法的手段による国際環境法の履行の確保で

ある。筆者は、国際司法裁判所（ICJ）も、国内裁判所も、ともに国

際環境法の履行確保の手段として適切ではないこと、国際環境司法

裁判所の設立は、理念的には望ましいが、現実性に乏しいことを論

証し、最後に、現実的な方策として、1993 年に ICJ に設けられた特

別環境部の強化を提言する。本論文では、学説や国際裁判の判例の

みならず、国内裁判所の判例も豊富に引用されて、筆者の主張を実

証的に裏付けており、当紀要に掲載するに値する内容であると認め

られる。本学部の卒業生が、単身渡英して、国際環境法の履行確保

という今日的なテーマに取り組み、かかる大部の英語論文をものし

て、修士号を授与されたことは、まことに喜ばしい。かような先輩

の存在は、本学学生の励みともなろう。ここにご紹介する所以であ

る。（2002 年 11 月 8 日記）

一三七

（10）

Introduction

Chapter q

What kinds of the reasons exist for establishing an International Court

of Environmental justice?

Chapter w

A) General function of international environmental law

B) What is the current situation of the states’ obligation in the interna-

tional environmental protection?

Implementation

C) How are states made to comply with international environmental

law?

Chapter e

A) Dispute settlement and avoidance in the field of international envi-

ronmental law

1) Technical points

2) Political processes

3) Legal Means

4) Considerations in dispute settlement and avoidance in interna-

tional environmental law

B) International Court of Justice

C) How does the International Court of Justice develop international

environmental protection?

Historical Cases

D) Can the ICJ adequately work as ICEJ?

1) For ICJ

一三六


2) Against ICJ

Article 34; Competence of the Court

Jurisdiction

Enforcement

3) Can a special environmental Chamber work adequately?

Assessment

Chapter r

A) What is the role of the national court?

B) The importance of judicial attitude for implementation ; Judicial

Activism

C) What are the problems of national courts?

D) Benefit of litigation and its difficulties

E) How can damaged individuals access the national courts in the

transboundary cases? Can they succeed?

Assessment

Conclusion

Bibliography

Table of Cases

1938-1941 Trail Smelter Case (United Nations v. Canada)

1947-1949 Corfu Cannel Case (United Kingdom v. Albania)

1972-1974 Fisheries Jurisdiction Case (United Kingdom and Fed. Rep.

Germany v. Iceland)

一三五

（12）

1973-1974 Nuclear Test Case (Australia and New Zealand v. France)

1978 Cosmos 954 Case (Canada v. USSR)

1981-1984 Gulf of Maine Case (Canada v. the USA)

1986 Chernobyl Nuclear Accidents (in USSR)

1986-1992 The Land Island and Maritime Frontier Dispute Case (El

Salvador v. Honduras ; Nicaragua intervening)

1989-1993 Certain Phosphate Lands in Nauru Case (Nauru v. Australia)

1994- Gabcikovo-Nagymaros Projects Case (Hungary v. Slovakia)

1995 Nuclear Test Case (New Zealand v. France)

Table of Cases in Domestic Courts

Banwasi Seva Ashram v. State of U.P. (India 1987)

M.C. Mehta v. Union of India (India 1991)

M/s. Saraswati Sugar Mills v. Haryana State Pollution Control Board and

Others (India 1991)

OPOSA Case (Philippine 1992)

S. P Sharma Dhungel v. Godavari Marble Industries Case (Nepal 1995)

THORP Case (England 1994)

De Nieuwa Meer Case (Netherlands 1986)

Lingen Nuclear Power Plant Case (Federal Republic of Germany 1985)

Bauman Case (Federal Republic of Germany 1986)

Bonn Case (Federal Republic of Germany 1987)

Table of Statute

The Charter of the United Nations

一三四


Statute of the International Court of Justice

Rules of Court (adopted on 14 April 1978)

Rome Statute of International Criminal Court (1998)

Table of Treaties

1960 Paris Convention on Third Party Liability in the Field of Nuclear

Energy

1963 Vienna Convention on Civil Liability for Nuclear Damage

1972 Declaration of the UN Conference on the Human Environment,

in Stockholm

1972 Convention on International Liability for Damage Caused by

Space Objects (1972 Space Liability Convention)

1973 Convention on International Trade in Endangered Species of

Wild Fauna and Flora

1974 Nordic Convention on the Protection of the Environment,

Stockholm

1992 Declaration of the UN Conference on Environment and

Development, in Rio de Janeiro

Abbreviation

American Journal of International Law AJIL

Convention on International Trade in CITES

Endangered Species of Wild Flora and Fauna

European Court on Human Rights ECHR

Environmental Impact Assessment EIA

一三三

（14）

Environmental Policy and Law EPL

International Criminal Court ICC

International Court of Environmental Justice ICEJ

International Court of Justice ICJ

Permanent Court of Arbitration PCA

Review of European Community & RECIEL

International Environmental law

United Nations UN

United Nations Environmental Programme UNEP

World Health Organization WHO

Yearbook of International Environmental Law YIEL

一三二


Does the world need an International Courtof Environmental Justice?

Introduction

Today, it is widely recognized that problems of environmental dam-

age have emerged. The world environment is under threat in several

ways. New human settlements and agricultural developments to

meet the demands of a growing population destroy nature.

Moreover, as in the case of the Chernobyl nuclear plant, unexpected

accidents also cause destruction of the environment. Furthermore,

states may destroy parts of ecosystems, as Iraq did during the Gulf

War in 1990-91.

Since the 1972 Stockholm Declaration, numerous multilateral and

bilateral treaties have been formulated. International environmental

law is rapidly developing. Moreover, human awareness and concern

for a healthy environment are significantly growing. Despite recent

developments in international environmental law, protection of the

environment has apparently improved little. In fact, many states try

to neglect their international environmental obligations. There is no

enforcement/ sanction to such a delinquent states, because of lack of

an enforcement mechanism. Furthermore, in the 1997 Kyoto

Conference, some states, especially third world countries, did not

agree to increased protection of the environment, especially regula-

tion of CO2 emissions, because they are keen to raise their living

standard and develop their countries. Moreover, one of the problems

一三一

（16）

is that states involved in environmental disputes favour to resolution

by political methods such as diplomatic negotiations, rather than legal

methods using the international court of justice. These are serious

obstacles the improvement.

To break through the problems in the fields of environmental law,

some researchers since the end of the 1980 have suggested establish-

ing an International Court of Environmental Justice1. The new inde-

pendent international judiciary will afford a right to access not only

for states but also for individuals and NGO. Proponents expect that it

would contribute to further development in the field of international

environmental law and create the erga omnes obligations in relation to

the environment. Moreover, by dealing with environmental disputes

through interpretation of international environmental law, it could

establish a legal order to protect the world environment, and force

states to comply with their environmental obligations.

This dissertation will analyse the present problems of existing interna-

tional and national courts, and then try to consider the appropriateness

of the idea of the establishing of the International Court of

Environmental Justice.

The first chapter will discuss the reasons why an International Court

of Environmental Justice appears necessary at present. This chapter

will also outline what benefits are expected after establishing ICEJ. 一三〇


────────────1 International Court of the Environment Foundation, in http://www.greenchnnel.com/icef

The second chapter will briefly discuss the general function of inter-

national environmental law, and the current situation in relation to

international environmental obligations. Two questions will be

addressed; How should states domestically act after ratifying treaties?

What methods could be used to enforce states’ compliance?

In the third chapter, I will consider whether the International Court of

Justice can work adequately as a judiciary in environmental cases.

The discussion will consider dispute settlement and avoidance of

intentional environmental law, how the International Court of Justice

contributes the development of international environmental law, and

how the Court deals with environmental disputes. The question

whether ICJ should also be the ICEJ will be considered.

Fourthly, I analyse whether the national courts can work adequately,

as international environmental instruments require of them. What is

the function of domestic courts in international environmental law?

What are the problems of domestic courts? What are the benefits of

civil litigation? Should NGO and ordinary people have access to the

court, instead of only the direct victims? Then, I will focus on the

problems of transnational litigation, and consider whether an individ-

ual victim can succeed in the litigation in the case of transfrontier

harm, such as the Chernobyl nuclear accident.

Chapter q

What kinds of the reasons exist for establishing an International Court

of Environmental Justice?

一二九

（18）

Some international lawyers, particularly Amedeo Postiglione2 and

Alfred Rest3, have claimed that International Court of Environmental

Justice should be established. Postiglione, a main advocator of ICEJ,

explains the reasons why a new judicial institution is indispensable in

the field of international environmental law4.

First of all, the human right to the environment needs a structure and

permanent guarantee at the international level5. Rest pointed out in

this regard that the human right to a clean and healthy environment

cannot be effectively protected by the International Court of Justice,

because it is placed as a human right in potential6. The human inter-

est is in opposition to that of the state, which is still tied to economic

interests contrasting with human rights7. According to Postiglione, a

new permanent judicial institution can be expected “to ensure the

right of access to environmental information, the right to participate

in administrative and judicial proceedings, and the right of access to

the court are effectively protected in the widest possible social terms

everywhere, and are compatible to the global ecological system con-

stituted by the planet” 8.

Secondly, the ICEJ can be expected to strengthen the deterrence.

This new judiciary will contribute to the prevention of ecological

一二八


────────────2 see, Postiglione, An International Court for the Environment? 1993, 23/2, EPL 3 see, Rest, The Indispensability of an International Environmental Court, 1998,vol. 7, issue 1, RECIEL 4 Postiglione, op.cit p73-p785 Postiglione, op.cit. p746 infra note 14, at p1747 ibid 8 Postiglione, op.cit. p74

harm9. Environmental harm should be prevented rather than dealt

with after it occurs, because some ecological damages such as nuclear

effects almost cannot be repaired or would be time-consuming and

costly to restore. The Chernobyl nuclear plant accident is a good exam-

ple. Radioactive fallout from explosion has destroyed bio-diversity

in the richest wild life area in Europe10. The Russian government

cannot restore such great environmental disruption, because of its

financial difficulties11. By enforcing the polluter-pays principle and

setting up an adequate compensation system under the judiciary-

which means having adequate sanctions for delinquent actors-, states’

obligations in international environmental law could be strengthened.

This would contribute to the enforcement of the international legal

order on the environment.

Postiglione mentions that “the sanctioning element (although it seems

to be a non-political question to some people today) cannot be elimi-

nated because environmental damage, in as far as it is legal, social

and economic damage on a global level, is unfortunately a reality. It

is a reality that needs to be prevented effectively and compensated” 12.

Conciliation and arbitration in the case of environmental harm cannot

sufficiently provide compensation to victims. However, where there

is no enforcement mechanism in the international society, there is the

suspicion that sanctions cannot effectively function to regulate states’

一二七

（20）

────────────9 Ibid10 World News, in The Independent, Thursday, 6 June 2000, p17 carried the storyof the current situation around Chernobyl nuclear plant. 11 ibid12 Postiglione, op.cit. p76

behaviour.

Thirdly, the ICEJ could provide adequate dispute settlement in the

field of international environmental law. Existing international envi-

ronmental legal instruments generally contain special clauses on dis-

pute settlement. However, most cases of environmental damages

were resolved by diplomatic negotiation and political consideration.

There have been few cases brought to an international judiciary such

as the International Court of Justice. The victims could not receive

adequate remedy for environmental harm. In the case of ecological

harm, solutions based on political considerations between states will

have a negative influence on the international environmental legal

order. Thus, it is hoped that establishing a judiciary system would

settle the environmental disputes.

The fourth reason, although it is similar to the first reason, is to give

the right of access not only for states but also individuals, non-gov-

ernmental organizations, and environmental associations13.

Regarding dispute settlement, states are the only legal actor that can

sue to the ICJ.

On the other hand, individuals are not granted direct access to the ICJ.

They must first go through with their national courts. However,

nowadays, as the Chernobyl nuclear accidents showed, individuals are

increasingly the victims of environmental destruction14. The national一二六


────────────13 International Court of the Environment Foundation, in http://www.greenchaan-nel.com/icef

courts should be the best source of help for individuals, but now they

are showing their limitations. According to Postiglione, the reason is

that “the environmental law conflict shifts from a conflict between

neighbors, to a local conflict; from an interstate to a continental con-

flict; from a continental conflict to a conflict within the heart of the

International Community”15. Thus, the old judicial style might not be

suitable to resolve the dispute.

Postiglione expects further benefits from establishing the ICEJ.

Firstly, the Court could perform complementary tasks: advisory,

investigative, and conciliatory functions16. Secondly, the ICEJ could

fulfil an educational role. That is an indirect task for the ICEJ, but it

could foster global understanding and public awareness of environ-

mental issues17. It was stated above that the prevention of ecological

harm is better than cure. Environmental education and ethics consti-

tute the best way to achieve this.

Moreover, the ICEJ will be able to focus special attention on extra-

territorial areas18. Huge areas outside the jurisdiction of single states

now appear to be lacking a body with specific jurisdiction compe-

tence to safeguard them19. States normally pay attention to ecologi-

cal destruction of their own territory. However, extra-territorial areas

一二五

（22）

────────────14 see, Rest, Need for International Court for the Environment?-underdevelopedlegal protection for the individual in transnational litigation-, 1994, 24/4, EPL 15 Postiglione, op.cit. p7416 Postiglione. op.cit. p7517 Ibid 18 Postiglione, op.cit. p7719 Ibid

called the global commons and common heritage are not serious mat-

ters for states. The attention to areas outside individual state jurisdic-

tion will contribute not only to concentrating on the urgent problems

of protecting the global commons, but also to further developing the

concept of erga omnes obligations to environment20.

These are the main reasons for establishing the ICEJ. The next

Chapter will look at the general points and current situation of inter-

national environmental law.

Chapter w

A) General function of international environmental law

International environmental law comprises those substantive, proce-

dural, and institutional rules of international law whose primary

objections are the protection and conservation of the environment21.

The rules of international environmental laws are decided by states’

negotiations in conferences. Its legal instruments normally emerge

as the following three types: soft law such as declaration, treaty, and

customary law.

Declarations, which are not legally binding on states, are preferable to

states. Moreover, soft law can be adopted more easily and speedily,

一二四


────────────20 supra note 14, at p17321 Sands, Principles of International Environmental Law, Frameworks, Standardsand Implementation, Manchester & New York, Manchester University Press,1995, p17

while hard law such as treaty involves a longer wait to attract consen-

sus on the adoption of specific, detailed, and binding obligations22.

States are normally unwilling to bind themselves. In particular,

countries in the process of development are very reluctant to join in a

binding treaty, because it might conflict with development projects.

Thus, a flexible, non-binding approach is favored by states. Another

advantage is that many states can be invited to conventions.

Moreover, there are cases where states firstly adopt a convention (soft

law), and then a couple of years later adopt a treaty (hard law). The

soft law approach can be a step on the way to hard law. I think that

soft law has important effects, because it displays a kind of environ-

mental standard to all states. The 1972 Stockholm declaration per se

is legally non-binding, but it exists as the general standard on interna-

tional environmental law and is now seemingly becoming customary

law, especially principle 21.

The 1972 Stockholm Declaration was the first significant effort of the

international community seriously to tackle environmental problems.

Principle 21 provides that states have “the responsibility to ensure that

activities within their jurisdiction or control do not cause damage to

the environment of other States or of areas beyond the limits of

national jurisdiction”.

一二三

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────────────22 Birnie, The role of international law in solving certain environmental conflicts, inCarroll. John E.(ed), International Environmental Diplomacy, Cambridge,Cambridge University Press, First edition, 1988, p101

Principle 2 of the Rio Declaration, 20 years later, succeeded principle

21. This principle 21 was reflected in subsequent declarations,

treaties, and UN resolutions23. Regarding states’ obligations to the

international community, states have to ensure that activities within

their jurisdiction or control do not cause damage to the environment

of other states or to areas beyond the limits of national jurisdiction.

Thus, states have to act with due diligence to control and monitor busi-

ness companies and individuals to prevent the ecological disruption.

Before Stockholm, the responsibility of states not to cause environ-

mental damage in areas outside their jurisdiction was elaborated by

the Arbitral Tribunal in the Trail Smelter case24. Subsequently, this

obligation /responsibility was cited in Nuclear Test25.

However, principle 21 does not make clear, “what is environmental

damage?”26 Thus, the subsequent clause, principle 22, is critical

because it encourages the international cooperation “to develop fur-

ther the international law regarding liability and compensation for the

victims of pollution and other environmental damage caused by activ-

ities within the jurisdiction or control of such as States to areas

beyond their jurisdiction”.

What is the legal meaning of “environment” in international law?

一二二


────────────23 For instance, Para.21(d)of the 1982 World Charter for nature and UNGeneral Assembly Resolution 2996 and so on. 24 supra note 21, at p19125 ibid26 ibid

Non common definition exists in international legal documents.

Thus, the meaning given to “environment” varies27. For instance,

some environmental treaties deal with the environment in terms of

special natural resources (e.g. 1980 Convention on the Conservation

of Antarctic Marine Living Resources and 1982 United Nations

Convention on the Law of the Sea (Part Xw)). On the other hands,

other treaties mention only environmental harm (e.g.1985 Convention

for the protection of the Ozone Layer). The 1972 Stockholm declara-

tion distinguishes two kinds of environment: “natural” (Proclaim and

Principle 2, 4) and “man-made” (Proclaim and Principle 1)28.

As the meaning of “environment” in several treaties differs, the con-

tent of states’ obligations and rights also vary, depending on the pur-

pose of treaties. However, I feel that, as Birnie mentioned, the gener-

al role of the field of international environmental law is to avoid or to

minimize dispute by creating a framework for the building of a legal

order29. Clearly, law itself cannot recover the damaged environment,

like natural science. The legal role in relation to the environment is

to minimize the disruption which can be expected.

With the increasing number of environmental legal instruments, the

content of states’ obligation and rights is furthermore generalized.

The breach of obligation will raise the issue of the states’ responsibili-

一二一

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────────────27 supra note 21, at p1828 Former includes “air, water, land, flora and fauna and...natural ecosys-tem”(principle 2). The latter includes in particularly living and working envi-ronment. 29 Birnie, op.cit. p117

ty and international dispute settlement between states may be necessary.

B) What is the current situation of the states’ obligation in the interna-

tional environmental protection?

After the 1972 Stockholm Declaration, a great many environmental

treaties and convention were adopted. As above mentioned, the obli-

gations are different from one treaty to another.

Implementation

In general, after states have ratified treaties, they must first develop,

adopt, or modify relevant national legislations, or give effect to nation-

al policies, programmes or strategies by administrative or other meas-

ures30. In some treaties, member states are required to take measures

to ensure the implementation of obligations, or to take appropriate

measures within their competence to ensure compliance with the con-

vention and any measures in effect pursuant to it31. In other treaties,

states have to designate a competent national authority or focal point

for international liaison purposes to ensure domestic implementation32.

Then, after implementing a treaty, states must ensure that it is com-

plied with by those within its jurisdiction and control33. Some

一二〇


────────────30 supra note 21, at p14331 ibid32 ibid33 Sands, Compliance with International Environmental Obligations : ExistingInternational Legal Arrangements, in Cameron, Werksman, and Roderick (eds),Improving Compliance with International Environmental Law, UK, EarthscanPublished limited, 1996, p52-p53

treaties expressly require party states to ensure such compliance, or to

apply sanction or punishment for breaches or violations of national

implementing measures34.

However, it is not clear whether there is any correlation between the

existence of such an obligation in the treaty and the level of compli-

ance. For instance, Article i (1) of CITES obliges the parties to

“take appropriate measures to enforce the provisions of the present

Convention”. However, the ambiguous point is, what does “appro-

priate measures” mean? After all, it is dependent on states’ discre-

tion. Substantially, if the national legislation is not effective, it

means the same as non-implementation.

Moreover, compliance is still difficult in the domestic area, especially

in developing countries, because they lack financial and other

resources35. Thus, financial support from international organizations

and developed countries is needed in order to protect the environment

under developing countries’ regimes.

Then, states must usually report their implementing situation in the

domestic area. Most of the recent environmental agreements require

states to meet reporting obligations. Normally, they submit reports to

international organizations or other states at regular intervals. Then,

the reports are checked to see whether or not the state has adequately

implemented its obligations under the particular treaty36. However,一一九

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────────────34 ibid35 supra note 21, at p14636 supra note 33, at p54

the problem is that many states fail to fulfil the basic reporting obliga-

tions. In particular, developing states cannot meet their reporting

obligations37. For instance, the CITES convention is not satisfactory

in terms of the reporting system38. In the conference organized by

the French association, Environnment sans frontiere, it was pointed out

that states may be overwhelmed with the number of reports that must

be filed, as well as that states, especially developing states, lack

reporting skill and the financial resources39. However, national

implementation is essential for the protection of the international

environment. Unlike national law, international law does not have

absolute sanction against delinquent states. Sanctions are always

affected by politics and, in general, imposed by strong countries on

weak countries. Thus, international cooperation for encouraging

states’ compliance is necessary.

C) How are states made to comply with International Environmental

Law?

As known, international law is based on the principle “pacta sunt ser-

vanda”. It is like contract law in national law. However, there is no

absolute enforcement mechanism in the international community.

Thus, the general problem of international law is how can states

一一八


────────────37 supra note 33, at p5538 Sands, Whither CITES? The Evolution of a Treaty Regime in the Borderland ofTrade and Environment, 1997, vol.8, European Journal Of International Law, p4839 Strengthening the Application of International Environmental Law, 26/4, 1996,EPL, p173; For the 50th anniversary of the UN, this French association organ-ized the conference to study international procedures for control, enforcementand conflict settlement in international environmental law and to devise apossible rationalizationand advancement of such procedures, in 18 and 19March, 1996

secure adequate compliance with the obligations of international law?

The proposed new judiciary, ICEJ, is expected to secure states’ com-

pliance with international environmental law.

The following factors are considered to encourage state compliance

with international environmental law. First of all, financial support is

useful to encourage compliance, especially for the developing coun-

tries. Financial shortage leads to inadequate national enforcement in

developing countries. According to Sands, there are two types of

financial support: (1) multinational development and lending institu-

tions are encouraged to incorporate environmental considerations into

their activities, applying appropriate international standard, and (2)

international public sector funds are made available to assist poor

countries in meeting the costs of stringent international protection

requirements40. Recently, the World Bank plans to establish a new

fund for developing countries to conserve the habitats of animals and

plants in danger of extinction41. The fund is expected to be financed

with 150 million dollars, part of which will come from private envi-

ronmental protection groups42. Advancements in biotechnology have

highlighted the importance of biological resources in tropical rain for-

est and other habitants. However, developing countries cannot

implement adequate policies to protect the environment due to a

shortage of funds. The new fund will be aimed at helping those

一一七

（30）

────────────40 supra note 33,at p5641 Critical Ecosystem Partnership Launches $ 150 Million Fund to Better ProspectBiodiversity Hotspots, in News, Speeches and Events, in The World Bank Group(Internet resources of World Bank Group; Internet Address is written in theBibliography.) 42 ibid

countries financially. This approach is realistic, so it is welcomed.

Other international organizations investing in development projects

should link financial support with compliance with environmental

obligations.

Secondly, the creation of state liability for the environmental damage

also accelerates states’ compliance. However, state liability is pro-

ceeding slowly and no treaty rules of general applicability establish

the liability of states for environmental damages43.

To facilitate compliance, I think that monitoring/supervision activities

are very important. Such activity is aimed more at prevention and

based on a precautionary approach, which I feel is best for the envi-

ronment. Two kinds of actors might perform this monitoring role.

Firstly, international organizations such as UNEP might have a role in

monitoring. Normally, environmental treaties decide to establish an

institution/committee to monitor the implementation situation. As I

mentioned above, member states regularly report to international

organizations, which check how states are complying with their obli-

gations under environmental treaties and might advise delinquent

states.

However, one problem is that although monitoring bodies have to

check reports, the volume of reports slows the process, making it dif-

ficult for the body to know if the information it is reviewing truly一一六


────────────43 supra note 33, at p57

reflects the current situation in the states44. Moreover, even if states

neglect obligations, adequate sanction/enforcement cannot be expect-

ed from international organizations, since states are normally reluc-

tant to give enforcement power to them.

The second type of actor is NGO which, although non-international

actors, could contribute to state compliance and the development of

international environmental law. NGOs can play a monitoring role at

international, regional, and national levels. They act as “watchdogs”,

and then inform the international organizations of delinquent states

and sometimes directly criticize such governments.

Moreover, sometimes they encourage unwilling states to join an envi-

ronmental treaty through lobby activity. Certainly, they cannot make

treaties. However, they can lobby the state’s representatives, and

encourage them to participate in new environmental treaties. Such

environmental pressures from NGOs can contribute to states’ compli-

ance. Furthermore, NGOs generally can educate ordinary people.

Education indirectly contributes to the compliance to states, because

awareness of environmental disruption among ordinary people leads

to the exercise of civil power by criticizing governments.

Considering the advantages of NGOs in the environmental area, I feel

that NGOs should have the same legal rights as individuals, to some

extent. For instance, they can participate in the process of treaty一一五

（32）

────────────44 Strengthening the Application of International Environmental Law, 1996,26/4, EPL, p173

making and join in regular meetings (CITES admit NGO to join the

regular committee, article pq (7)). Also, they can be informed or, if

possible, check national reports submitted to international bodies.

They can access environmental information from government and

international organizations as much as possible. This will accelerate

the national implementation and make the erga omnes obligations,

because NGOs themselves are generally not under state influence.

They work voluntarily to serve their objective.

Chapter e

A) Dispute settlement and avoidance in the field of international envi-

ronmental law.

1) Technical points

As environmental disruption nowadays varies, environmental disputes

can arise for the several reasons. For example one state may breach a

bilateral or multilateral treaty, or customary law. In another case,

activities in or under the authority or control of one or some states

may have directly effect beyond the state, injuring another state or its

people. Most transboundary harm is of this type. The Trail Smelter

case is a millstone example.

Traditional dispute settlement mechanisms apply to environmental

issues. The Charter of the United Nations 33 lists the traditional

mechanisms of solution as “negotiation, enquiry, mediation, concilia-

tion, arbitration, judicial settlement, resort to regional agencies or

arrangements, or other peaceful means of their own choice”. The

一一四


more informal or political processes of negotiation, mediation, and

conciliation, as well as the more formal or strictly “legal” procedures

of arbitration and judicial settlement, are chose depending on the

nature of the relevant parties and their interests. The last two (arbi-

tration/judicial settlement) are the means where decision is based

most explicitly on legal rules. In the case of a political process, envi-

ronmental law, understood as the expectation of the world communi-

ty, is the basis of negotiation between disputing parties and adjust-

ment of their different views or claims45. For instance, in the case of

Cosmos 954 between Canada and USSR, the settlement was agreed in

the content of the USSR’s consideration of question of damage “in

strict accordance with the provisions” of the 1972 Space Liability

Convention46.

2) Political Processes

Most environment related international disputes are resolved by polit-

ical means.

Negotiation: One of the most effective methods of resolving interna-

tional disputes or potential disputes is negotiation47. Through delib-

eration, discussion, conference, or other means of exchange of views,

usually via normal diplomatic channels, the terms and conditions of a

bargain are resolved by mutual accord.

Mediation and Conciliation: Once negotiation (and consultation) fails,一一三

（34）

────────────45 supra note 21, at p16546 ibid 47 ibid

a number of environmental legal instruments endorse mediation and

conciliation in order to achieve a resolution48.

Both political means involve the intervention of a third person49. In

the case of mediation, the third person is involved as an active partici-

pant in the exchange of proposals between disputing parties, and may

offer informal proposals50. On the other hand, in the case of concilia-

tion, the third person assumes a more formal role and often investi-

gates the details underlying the dispute and then makes formal pro-

posals for the resolution of the dispute51.

3) Legal Means

Unlike diplomatic means, legal means of dispute settlement (arbitra-

tion/judicial settlement) result in a legally binding decision.

Arbitration: The goal of international arbitration is described as “the

settlement of disputes between states by judges of their own choice

and on the basis of respect for law”52 . In the environmental context,

the famous arbitrations were the Trail Smelter case between USA and

Canada and La Lanoux case between France and Spain.

International Court: The settlement of international disputes may also

be referred to an international court, although this often occurs after

time has been spent attempting to resolve the dispute by other

一一二


────────────48 supra note 21, at p16649 ibid 50 ibid 51 ibid 52 supra note 21, at p169

means53. In the field of environmental protection, there are several

international courts, namely, the International Court of Justice, the

European Court of Justice, courts created by regional human rights

treaties (such as the European Court on Human Rights) and the

International Tribunal for the Law of Sea54.

In this paper, I will focus on the ICJ and try to consider whether or

not it can function well in the field of international environment.

4) Considerations in dispute settlement and avoidance in international

environmental law

Bilder mentioned that the international community should pay atten-

tion to avoiding and preventing disputes in the environmental field

rather than attempting to deal with these problems only after their

emergence55. To avoid disputes, the following mechanisms are par-

ticularly important: collection of data, reporting, fact-finding, inquiry,

inspection, compliance procedures, consultation, capacity building

activities, incentives, and gathering and sharing of information

through, inter alia, transboundary environmental impact assessment

and early notification56. They are almost the same as the factors for

states’ compliance with environmental obligations. If states can

一一一

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────────────53 supra note 21, at p17054 supra note 3, at p6455 Bilder, The Settlement of Disputes in the Fields of the International Law of theEnvironment, 1975, vol.144, Recueil des Cours(Hague Academy ofInternational Law, p22356 Dispute Avoidance and Dispute Settlement in InternationalEnvironmental Law-Conclusions by the International Group of Experts-,1999, 29/2-3, EPL, p144. Bilder also displayed the methods of dispute avoid-ance, in Bilder, op.cit. p160

effectively comply with their obligation, disputes between states can

be avoided.

I absolutely agree with this idea, because modern technology and sci-

ence have a great deal of potential for grave harm to ecology.

Sometimes, restoration is not possible. For instance, radioactive fall-

out, long-term soil degradation, deforestation, and loss of bio-diversi-

ty are relevant illustrations. Moreover, regarding the legal issue, the

compensation for ecological harm is not adequate. The prevention of

disruption of the environment is to be preferred and the fundamental

purpose of international environmental law is to minimize ecological

harm. Thus, dispute avoidance has many advantages vis-a-vis dis-

pute settlement, and the international community has recently realized

that they should pay attention to dispute avoidance57.

However, once dispute avoidance fails or is not possible, dispute set-

tlement will occur between states. As mentioned above, article 33 of

the UN Charter shows the traditional technical methods of dispute set-

tlements. Since pollution and environmental damage take varies

forms and the fields of environmental law such as marine, river and

lake, and air, vary, the method of environmental dispute settlement

should be flexible58.

However, the problem of dispute settlement is that states rarely use

the third-party dispute settlement option, because they are generally一一〇


────────────57 Dispute Avoidance and Dispute Settlement in International Environmental Law-Conclusions by the International Group of Experts-, op.cit. p14358 Bilder, op.cit. p223

reluctant to submit disputes to impartial institutions59. As mentioned

above, dispute settlements are categorized into two types, political

and legal. States favour political settlement, and also do not favour

legal settlement based on states’ liability. Negotiation is still an

important approach in the contemporary international legal order60.

Although most of the existing environmental treaties provide for

recourse to ICJ or an ad hoc arbitration body, common agreements are

required of disputing states. There is no compulsion to refer a dis-

pute to legal institutions. So, judicial techniques always offered the

parties a “last resort” when other techniques have failed61. In the case

of the Gabcikovo-Nagymaros Project, Hungary and Slovakia negotiated,

but they could not achieve a solution. Then, at the suggestion of the

Commission of the European Communities, they submitted the dis-

pute to the ICJ62.

Sand mentions63 that “fifty years after the Trail Smelter case, there have

been no significant advances in intergovernmental settlement of

transnational disputes over “reciprocal” environmental obligations.

Governments have tended to avoid recourse to third-party adjudica-

tion-favoring bilateral, local, and informal channels instead.” I con-

sider that political and individual settlement might not be conductive

to the development of international environmental law and not con-

一〇九

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────────────59 Gehring International Environmental Regimes : Dynamic Sectoral LegalSystems, 1990, vol.1, YIEL, p5160 ibid 61 Bilder, op.cit. p22662 Gabcikovo-Nagymaros Case, 1998, 28/1, EPL, p1263 Sand, New Approaches to Transnational Environmental Disputes, 1991,vol.3, number 3, summer, International Environmental Affairs, p199

tribute to creating erga omnes obligations. Thus, with the new court

proposed by Postiglione, enforcement might require the use of legal

methods by disputing parties. However, that feasible?

Moreover, Sands points out that in the case of damage to the environ-

ment beyond the national jurisdiction, injured states normally bring

the claim to protect their interests, not to protect the interests of the

international community64. That is one of the reasons why

Postiglione called for creation of the ICEJ. Then, Sands raises the

question, whether a state has a general legal interest in the protection

of the environment in areas beyond its national jurisdiction such as to

allow it to exercise a right of legal protection on behalf of the interna-

tional community as a whole (actio popularis)65. After all, since erga

omnes obligations do not exist, there is suspicion that states will bring

claims to violating states or to third institutions, if other countries

cause damage to the global commons

However, dispute settlements normally raise public awareness of the

issue66. Thus, it cannot be said that the dispute settlement will not

contribute to the development of international environmental law at

all. This public awareness might lead to a social movement to

encourage the environmental protection.

B) International Court of Justice

A range of international procedures and mechanisms are available to一〇八


────────────64 supra note 33, at p6065 supra note 33, at p6166 Bilder, op.cit, p162

assist in the pacific settlement of the environmental disputes. The

Charter of the United Nations 33 shows the traditional mechanisms of

solution. As mentioned above, the dispute settlements are technically

categorized into two types. Diplomatic means, including negotiation,

consultation, mediation, and conciliation, are dependent on the

whether or not states accept the proposed settlements. They have no

legally binding power on states. On the other hand, legal means such

as arbitration and judicial settlement result in legal binding decisions.

The International Court of Justice (ICJ) is the principal judicial organ

of the United Nations. Its seat is at the Peace Palace in The Hague of

Netherlands. It began work in 1946, when it replaced the Permanent

Court of International Justice, which had functioned in the Peace

Palace since 1922. The Court operates under a Statute largely similar

to that of its predecessor, which is an integral part of the Charter of

the United Nations.

The Court has a dual role: to settle in accordance with international

law the legal disputes submitted to the Court by states, and to give

advisory opinions on legal questions referred to it by duly authorized

international organs and agencies. By fulfilling these two main roles,

the Court contributes to the development of international environmen-

tal law.

C) How does the International Court of Justice develop international

environmental protection?

The Court has contributed to the development of international envi-

ronmental protection through dispute settlement cases.

一〇七

（40）

Historical cases

In the 1949 Corfu Channel case, the Court affirmed “every state’s obli-

gation not to allow knowingly its territory to be used for acts contrary

to the rights of other states”67 . Although the case did not raise the

environmental issues between the UK and Albania, it is frequently

cited in the field of environmental law, especially with regarding to

transboundary environmental issues. Principle 21 of the Stockholm

Declaration is based on the norms of the Corfu Channel Case as well as

the Trail Smelter Case.

In 1974, in the Fisheries Jurisdiction case brought by the UK and West

Germany against Iceland in respect of the latter’s extraterritorial

application of its fisheries conservation measures, the ICJ concluded a

guideline to facilitate resolution of disputes in relation to the conser-

vation of shared natural resources68. The Court not only settled the

international environmental conflict, but also established a basis for

the future resolution of similar disputes. Disputes over natural

resources may be expected to increase and intensify in the future.

The 1995 fishery case of between Canada and Spain was similar to the

1974 case and similar ruling was made69.

一〇六


────────────67 Sands, The International Court of Justice and the European Court ofJustice, in Werksman(eds.), Greeting International Institutions, the UK,Earthscan Publications limited, 1996, p 22268 ibid 69 Reports From International Courts And Tribunals, 1995, vol.6, YIEL, p536; On28, March 1995, Spain instituted proceedings against Canada in the disputeconcerning Canada fisheries conservation measures against the Estai, aSpanish registered fishing vessel, on the high seas.

In this case, the Judgements stated that importance of the conserva-

tion of fisheries resources and said that the international community

as a whole should negotiate to resolve these issues70:

“Both States have an obligation to take full account of each other’s

rights and of any fishery conservation measures the necessity of

which is shown to exist in those waters( in the 12-miles to 50-miles

zone). It is one of the advances in marine international, resulting

from the intensification of fishing, that the former laissez-faire treat-

ment of living resources of the sea in the high seas has been replaced

by a recognition of a duty to have due regard to the rights of other

States and the needs of conservation for the benefit of all.

Consequently, both Parties have the obligation to keep under review

the fishery resources in the disputed waters and to examine together,

in the light of scientific and other available information, the measures

required for the conservation and development, and equitable exploita-

tion, of these resources, taking into account any international agree-

ment in force between them, such as the North-East Atlantic Fisheries

Convention of 24 January 1959, as well as such other agreements as

may be reached in the matter in the course of further negotiation”71.

Moreover, the Court furthered the negotiations on the regime of gov-

ernance for the sea in general72. The judgments themselves were

一〇五

（42）

────────────70 Konisky, The United Nations Depute Settlement System and internationalEnvironmental Disputes, http://www.wws.princeton.edu/~jpia/1.htm, 71 paragraph 72 of Judge of 25th July, 1974, in Fisheries Jurisdiction Case(theUK and Northern Ireland v. Iceland) 72 supra note 70

published in the middle of the second session of the Third United

Nations Conference on the Law of the Sea in which one of the many

unresolved issues was the extent and nature of coastal states’ jurisdic-

tion over the natural resources of the sea73.

In the case of the Nuclear Tests in the same year, the Court declined to

give a ruling on the merits of separate Australian and New Zealand

applications concerning the legality of French nuclear tests in the

South Pacific area74. The Courts concluded the above decision,

because France unilaterally declared the French intention not to hold

any further tests in the atmosphere there after its 1974 series of tests75.

Although France eventually did not accept that the Court had jurisdic-

tion of this issue, and continued to carry out atmospheric tests pend-

ing the coming into effect of its unilateral declaration, there are some

points worth noting in this case76. Firstly, during the pleadings, com-

prehensive environmental arguments were put to the Court on the

obligation to prevent transboundary fallout of radioactivity77.

Secondly, the Court as an interim measure of protection called on the

three countries concerned not to take the action, which would aggra-

vate the dispute and called on France to avoid nuclear tests causing

the deposit of radioactive fallout on the neighboring territory78.

一〇四


────────────73 ibid 74 supra note 67, at p 223. 75 Harris, Cases and Material on International Law, London, Sweet & Maxwell,5th edition, 1996, p 774 : In detail, p 774-p77976 supra note 67, at p 22377 ibid 78 ibid

In 1989, the ICJ was presented with an opportunity to consider some

of the environmental aspects of mining as a result of the case brought

by Nauru against Australia (Certain Phospate Lands in Nauru)79. Nauru

claimed certain legal obligation in respect of the use of natural

resources, including rehabilitation and land rights of indigenous

inhabitants, arguing that major resource had been depleted on grossly

inequitable terms and the extraction of Phosphate involved a physical

reduction of the homelands of the people of Nauru80.

In August 1993, Australia eventually offered Nauru the compensation

in settlement of the claim81. So, the Court did not have the opportu-

nity to consider the merits, including the possibility of assessing the

costs of rehabilitation82. However, in this case, some significant

developments in international environmental law are found. One of

these developments, as Sands mentioned, was that “the question of

whether states have “joint and several liability” is to be distinguished

from the question of whether one of those states may be sued alone in

respect of a claim of a breach of an international legal obligation, and

the possibility that attributing responsibility to one state might have

implications for the legal situation of other states concerned does not

establish a bar to proceedings being brought against that one state”83.

In a particular issue, it may be impossible to identify all defendants.

一〇三

（44）

────────────79 supra note 21, at p48480 supra note 21, at p48581 supra note 21, at p48682 ibid83 supra note 21, at p487

It is probably a difficult question, “who damaged the environment”84.

Australia claimed that Nauru’s application was inadmissible as the

claim was substantially against the administrative authority and any

judgment on the question of breach of the 1974 Trusteeship

Agreement would involve the responsibility of third states such as the

UK and New Zealand85. They did not accept the Court’s jurisdiction

in the case86. However, the Court rejected this Australian argument,

because although three states constituted the administering authority,

Australia had played a very special role established by the various

Agreements and by practice87.

In August 1994, New Zealand requested the ICJ to reopen its 1974

nuclear test case against France88. New Zealand relied on arguments

based on treaty and customary international law, especially the 1986

Noumea Convention for the Protection of the Natural Resources and

Environment of the South Pacific Region89. Then, it asked the Court

to declare that it would be unlawful for France to conduct under-

ground nuclear test before it had carried out an environmental impact

assessment according to international standards, which assessment

should establish that the tests would not give rise to any radioactive

contamination of the marine environment90. The Court dismissed the

一〇二


────────────84 supra note 21, at p48685 ibid 86 ibid 87 ibid 88 supra note 67, at p 223. Also, Reporting From International and Tribunals,1995, vol.6, YIEL, p531; France declared to conduct the underground nucleartesting in South Pacific from September 1995. 89 supra note 67, at p 224.90 Ibid

New Zealand’s request on jurisdictional grounds, based on paragraph

63 of the 1974 nuclear test case judgment91. The reason was the same

as the French objection against the New Zealand request on jurisdic-

tional grounds. France argued that paragraph 63 of the 1974 judg-

ment was related only to atmospheric nuclear tests, not to under-

ground nuclear tests92.

Although the ICJ had no jurisdiction in this case, the pleadings of the

case provide some indication of current views on various aspects of

international environmental law93. Moreover, the views of the dis-

senting Judges, especially Koroma, Palmer, and Weeramantry, are

useful for developments of international environmental law, especial-

ly customary law94. First of all, regarding the prevention of environ-

mental damages, Judge Weeramantry mentioned that the principle not

to cause environmental damage to other nations is grounded in com-

mon sense, case law, international conventions, and customary inter-

national law95. Secondly, New Zealand invoked the illegality under

international law of conduct that causes the introduction into the

marine environment of radioactive material, but the majority of the

Court did not address this argument96. However, the dissenting

Judges appear to have accepted the argument. Judge Weeramantry

一〇一

（46）

────────────91 Reports From International Courts And Tribunals, 1995, vol.6, YIEL,p531; para. 63 stated that “if the basis of this Judgment were to be affected,the Applicant could request an examination of the situation”92 Reports From International Courts And Tribunals, 1995, vol.6, YIEL, p53293 supra note 67, at p 224-p22594 Reports From International Courts And Tribunals, 1995, vol.6, YIEL, p53395 ibid 96 Reports From International Courts And Tribunals, 1995, vol.6, YIEL, p534

considered that the illegal of introduction of radioactive waste into the

marine environment was well, so there was no need to discuss it97.

Thirdly, New Zealand claimed regarding the obligation of an environ-

mental impact assessment, but the Court did not to address the argu-

ments98. However, Weeramantry considered that the requirement to

carry out an EIA was gathering strength and international acceptance,

and it had reached the level of general recognition at which the Court

should take notice of it99. Moreover, another Judge, Palmer, men-

tioned that customary international law may have developed a norm

of requiring EIA100. Fourthly, Weeramantry considered that the pre-

cautionary principle was gaining increasing support as part of interna-

tional environmental law101. Palmer also mentioned that the norm of

the precautionary principle had developed rapidly and might now be a

principle of customary environmental international law102.

As mentioned above, the ICJ has contributed the development of

international environmental law through its cases of dispute settle-

ment and statements, orders, and dissenting opinions of Judges con-

sidering particular disputes, although a few of technical legal points,

especially jurisdiction, barred its developments. As in the case of

dispute settlement, some of ICJ’s functions could be expected to con-

tribute to the development of international environmental law and

一〇〇


────────────97 Reports From International Courts And Tribunals, 1995, vol.6, YIEL, p53598 ibid 99 ibid100 ibid 101 Reports From International Courts And Tribunals, 1995, vol.6, YIEL,p536102 ibid

environmental protection. Thus, an interesting idea has arisen that

the ICJ could function as the ICEJ in the future.

D) Can the ICJ adequately work as ICEJ?

1) For ICJ

Some researchers claim that the United Nations and especially the ICJ

under the UN authority can adequately settle international environ-

mental disputes103. They claim that the Court not only generally con-

tributes to the development of international law, but it can also play a

role to develop international environmental law and enforcement.

The following factors would favours such as a role.

First of all, the ICJ has benefits for international environmental law as

a permanent court. Only a permanent court can fully and consistent-

ly fulfil the task of developing international law104. A permanent

court can develop international law/norms beyond dispute settlement.

However, on the other hand, an ad hoc tribunal is only established for

particular issues. This point was one of the reasons for establishing

the International Criminal Court, in Rome. After it is decided to

establish an ad hoc court, it is necessary to consider, who will/should

be selected as judges in the ad hoc court? Where will financial

resources come from to establish the court? It takes a lot of time and

money. It is a very expensive procedure. Therefore, sometimes the

九九

（48）

────────────103 Jennings; infra note 104, at p240-p244, and Konisky; supra note 70104 Jennings, The role of the International Court of Justice in the Development ofInternational Environmental Protection Law, 1992, vol.1, no. 3, RECIEL, p242

court might not be established for political reasons.

Secondly, the ICJ has power to provide advisory opinions (advisory

jurisdiction)105. Article 96 of the UN Charter mentions that;

(1)The General Assembly or the Security Council may request the

International Court of Justice to give an advisory opinion on any legal

question, and (2) other organs of the United Nations and specialized

agencies, which may at any time be so authorized by the General

Assembly, may also request advisory opinions of the Court on legal

questions arising within the scope of their activities106.

The advisory procedure of the Court is not open to states107. In a recent

case, the World Health Organization requested the court to give an advisory

opinion regarding the legality of the use of nuclear weapons108(although

the Court declined to answer the WHO’s question109). UNEP, as a UN

organization, is granted competence to ask the Court for advisory

opinions on legal questions concerning environmental protection110.

Jennings considers “that could be a very important step assisting in

九八


────────────105 ibid106 Article 65(1) of the Statute of the International court of Justice also pro-vide that “the Court may give an advisory opinion on any legal question atrequest of whatever body may by authorized by or in accordance with theCharter of the United Nations to make such a request”. 107 Malanczuk, Modern Introduction to International Law, London & New York,Routledge, 7th edition, 1997, p289108 Reports From International Courts And Tribunals, 1993, vol.4, YIEL, p487; in1993, WHO asked “in view of the health and environmental effects, would theuse of nuclear weapons by a State in war or other armed conflict be a breachof its obligations under international law including the WHO Constitution?”,later General Assembly also asked the similar questions. 109 Reports From International Courts And Tribunals, 1996, vol.7, YIEL, p359110 supra note 104, at p242.

the creation of a new law of environmental protection 111”.

Thirdly, the Court has the broad competence to deal with all interna-

tional issues112. Its jurisdiction comprises the entirety of international

law, including the recent and the innovative as well as the older law.

Nowadays, environmental issues range over the whole field of public

international law. For instance, in the case of Gabcikovo-Nagymaros

between Hungary and Slovakia, the Court deliberated whether

Hungary’s abandonment of the construction under 1977 treaty was

illegal113. Hungary had abandoned the construction, because of eco-

logical concerns. In this case, the Court dealt with the issue from the

perspectives of law of treaty and environmental law, such as the con-

vention on the law of Non-Navigational Uses of International Water

Courses, EIA, and the precautionary approach114. Eventually, the

Court accepted that Hungary was entitled to terminate the construc-

tion. Thus, it is not necessary to specialize only in one legal field.

In addition to that, recently, many researches have considered envi-

ronmental law in connection with human rights aspects.

Another significant point is that the ICJ can also contribute in respect

of sanctioning and enforcement against delinquent states. That is

crucial in the international community as whole, since there is no

world government. I have mentioned that enforcement is the best

motivation to establish the ICEJ, because sanction/enforcement will

九七

（50）

────────────111 Ibid 112 ibid 113 see Gabcikovo-Nagymaros Case, 1998, 28/1, EPL114 Gabcikovo-Nagymaros Case, op.cit. p19

make states comply with their obligations in environmental law, so

making a world legal order in the field of environment.

Two points should be noted regarding the enforcement function of the

Court. First of all, the Security Council will provide the formal

machinery of enforcement115. Article 94 (1) of the UN Charter men-

tions that each member of the UN undertakes to comply with the deci-

sions of the Court. However, the second paragraph continues that “if

any party to a case fails to perform the obligations incumbent upon it

under a judgement rendered by the Court, the other party may have

recourse to the Security Council, which may, if it deems necessary,

make recommendations or decide upon measures to be taken to give

effect to the judgement”. However, I feel that Jennings’ stance is

somewhat optimistic.

Secondly, the political significance of a judgment or an advisory

opinion from the Court should be noted116. Jennings mentions that

“once a judgment, or an opinion, is handed down, the political situa-

tion is no longer the same. A party to a dispute who has an ICJ

judgement in his favour is, to say the least, in a better position than he

was. The existence of an authoritative and reasoned decision on

what is the correct legal position, is politically as well as legally, a

very different matter from a situation which consists only in assevera-

tions from each side, each claiming to be in accord with the law”117.

九六



Moreover, citing the example of the Corfu Channel case, Jennings con-

siders that the Court can contribute to widespread compliance with

the law118. That is legally and politically of much greater signifi-

cance than payment of a sum in reparation for the illegality. The

judgement was not satisfied in the case, but the law laid down by the

Court in the Case is now universally accepted.

Furthermore, the innovative thing is that the Court has established a

special chamber for dealing with environmental matters under article

26 (1)119. The Court sees the growing importance of environmental

concerns, so it is positively addressing environmental issues. That is

an important factor in thinking about the future of the Court. The

Chamber was expected to promote the development of international

environmental law and also to work adequately for dispute settlement.

Although judgements from the various countries, developed and

developing is a recent trend inside the Court, the Court quite often

achieves a unanimous or near unanimous decision120. Also, there

have been very few cases where the alignment of judicial opinions for

or against the decision was predictable121. This encourages use of the

Court as a centre for dealing with environmental questions.

九五

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────────────118 ibid 119 Reports From International Courts And Tribunals, 1993, vol.4, YIEL, p484;The Chamber was established in July 1993. Seven judges (Schwebel,Bedjaoui, Evensen, Shahabudee, Weeramantry, Ranjeva, Herczegh) wereelected by secret ballot for an initial six-month period with effect form 6August 1993. 120 supra note 104, at p244121 ibid

Moreover, the environmental approaches of developed and develop-

ing countries are generally different. The former want to preserve

the environment. On the other hand, the latter want to utilize the

environment for their development. Debate on different approaches

to the environment might improve environmental law and lead to

states understanding each other’s different approaches.

Jennings claims in his paper that the ICJ can accelerate the further

development of international environmental law. He seemingly sug-

gests that the Court has already done well, so it is not necessary to

create a new judiciary for environmental protection.

Similarly, in opposition to the establishment of new court, Konisky

points out that the UN has the capacity of facilitating dispute settle-

ment in the environmental domain122. The UN is the best institution

to resolve the environmental disputes, and then the Court can con-

tribute as the UN’s judicial organ or an institution under the UN’s

umbrella. If the Court cannot solve a dispute, other UN agencies,

such as the Security Council or the Secretary-General and his repre-

sentative can try to settle it. The Security Council, if necessary, has

its enforcement powers and the Secretary General can encourage dis-

pute settlement by diplomatic negotiations. This means that the

Court, under the UN, can benefit for dispute settlements. Thus, it is

not necessary to set up an independent (separate) new judiciary for

the environment.

九四


────────────122 supra note 70

2) Against ICJ

It has been argued that the ICJ has the potential ability to accelerate

international environmental protection, and as the judicial organ

under the UN, it can adequately function to settle environmental dis-

putes. Thus, the ICEJ is not necessary because the Court has acted or

will act sufficiently as the World Court for environmental protection

as well.

However, is this really so? I feel that there are some reasons why the

ICJ is still not suitable institution to deal with the international envi-

ronmental disputes. The main reason why the Court cannot ade-

quately fulfil the function of dispute settlement can be explained by

its character, which limits the “competence of the Court” (Statute of

the International Court of Justice, 34-38).

Article 34; Competence of the Court

First of all, the ICJ cannot be the right forum because states alone

have direct access to the Court123. I feel that it is the main reason

why the ICJ cannot role as the ICEJ, even though the ICJ has posi-

tively tackled environmental problems, and it established a Chamber

for environmental matters. Article 34 of the Statute provides that

“only states may be parties in cases before the Court”. Politically and

realistically, it is understandable that states are reluctant to relinquish

their own sovereignty in order to allow the right of access to individu-

als and also environmental associations. However, it should not be

forgotten that “the environment is not a right of states but of the people”. 九三

（54）

────────────123 supra note 3, at p64

At present, most victims of environmental harm are individuals. For

political and economic reasons, they cannot gain sufficient remedy.

This is so, not only in the case of transboundary harm between states,

but also in the case of ecological harm in the domestic area. As I will

be shown in the next chapter, the domestic courts are sometimes

affected by political and economic considerations, so they cannot per-

form the judicial task of providing individual victims with adequate

remedy, by ordering private companies to stop harmful activity

against environment, and punishing the delinquent administration,

according to the legal interpretation.

Moreover, non-state actors such as NGOs and INGOs should be

allowed to access the international judiciary to some extent.

Nowadays, NGOs function to monitor breaches of international obli-

gations and to encourage compliance with the law. NGOs behave as

“watchdogs”, and the huge benefits for ecological protection cannot

be underestimated.

Jennings, who is a Judge in the ICJ, made an interesting points

regarding individual access to the Court124: “There is one important

change that has overtaken the Court in its fifty years of existence; but

the change has been so quiet and gradual that it is generally unre-

marked; and that is change in the effect and perspective of Article

34(1) of the Statute which provides that only states may be parties

before the Court. The fact is that nowadays a very considerable part

九二


────────────124 Jennings, The United Nations At Fifty, The International Court of Justice AfterFifty Years, AJIL, vol1 89;493, 1995, p504

of international law directly affects individuals, corporations and legal

entities other than states. This is especially true of law making

treaties”.

Some judiciaries accept individual access and also that of NGOs.

For instance, the ECJ accepts the right of access for individuals and

NGOs. Moreover, the ECHR also allows direct access for individu-

als125. However, in the case of the latter, individuals are only allowed

access to the ECHR after having exhausted all local remedies, and

once the Commission on Human Rights has agreed to bring the case

to the Court126. This time-consuming, thorny procedure considerably

blocks a better protection of environmental human rights127. Also, it

should be remembered that environment is a universal concern. Some

cases are regional issues, so they can be resolved by a regional judici-

ary. However, who should resolve disputes related to environmental

harm across other regions? Such disputes might be settled by political

methods. Moreover, a regional judiciary cannot be expected to con-

tribute the development of a universal international environmental law.

Jurisdiction

Secondly, the access to ICJ is dependent on the will of states. This

means that one of the Court’s main aspects, jurisdiction, is an obsta-

cle. According to article 36 (1) of its statute, the Court has jurisdic-

tion by agreement between the parties to the dispute, either by a spe-

cial agreement whereby two or more states agree to refer a particular

九一

（56）


dispute and defined matter to the Court, or by a compromissory clause

in a multinational or bilateral treaty. In the Gabcikovo-Nagymaros

case between Slovakia and Hungary, after they could not achieve the res-

olution of disputes, they signed an agreement to submit it to the court128.

Otherwise, the Court would not have had jurisdiction in the case.

Moreover, “the Optional Clause” under article 36(2) should be noted.

This optional jurisdiction clause was a compromise between the advo-

cators and opponents of compulsory jurisdiction129. It contains the

words “in relation to any other state accepting the same obligation”.

This is known as the principle of reciprocity. So if two disputing

states have already declared the compulsory jurisdiction under 36(2),

both states can sue each other and then the Court can exercise its

jurisdiction. It seems that the optional clause aimed to confer wider

jurisdiction and that the court is trying to be a world court, although a

precondition (states’ declarations) is necessary. However, reserva-

tions or conditions are frequent130. In fact, in some cases, states con-

tested the jurisdiction by declaration of reservations131.

九〇


────────────128 Gabcikovo-Nagymaros Case, op.cit. p12; on 7 April 1993, the “Agreementfor Submission to the International Court of Justice of the DifferencesBetween the Republic of Hungary and the Slovak Republic Concerning theGabrickovo-Nagymaros Project” was signed in Brussels. 129 Malanczuk, op.cit. p284130 supra note 124, at p495131 ibid; In May 1994, Canada terminated its existing declaration and substi-tuted one excluding “disputes arising out of or concerning conservation andmanagement measures taken by Canada with respect to vessels fishing in theNAFO Regulatory Area, as defined in the Convention on Future MultilateralCo-operation in the Northwest Atlantic Fisheries, 1978, and the enforcementof such measures”. It further reserved the right by notification “to add to,amend or withdraw” any reservations.

Jennings pointed out that “the optional clause remains an underused

and less than satisfactory method for augmenting the competence of

the Court. It remains true, as it was when Waldrock made his famous

study of the optional clause, that despite the principle of reciprocity,

states may well decide that there is some political advantage in

remaining outside a system which permits states to join more or less

on their own terms at an opportune moment. It would be difficult of

not practically impossible to change the system, given the difficulties

of amending the Statute of the Court”132. If environmental issues were

to be matters of the compulsory jurisdiction, the Court would be closer

to fulfilling the task of ICEJ. After the elapse of more than fifty years

from the ICJ’s establishment, this optional clause should be reformed.

If a dispute occurs, but the parties in the dispute do not have the will

to access to the ICJ (legal settlement), the jurisdiction cannot start.

The 1995 Nuclear Test case was a good illustration of this weak point in

the ICJ’s jurisdiction. In that case, New Zealand requested the Court

to reopen its 1974 nuclear test case against France. Its request for the

Court’s jurisdiction was based on Paragraph 63, because it did not

have any other basis for invoking the Court’s jurisdiction133. In fact

France rejected the Court’s jurisdiction, even challenging paragraph

of 63. Also, 63 paragraph, on which New Zealand relied to involve

the jurisdiction of ICJ, was not clear134.

八九

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────────────132 ibid133 supra note 67, at p224134 International Court of Justice: Request for an Examination of the Situation inAccordance with Paragraph 63 of the Court ﾕ s Judgement of 20 December 1974 inthe Nuclear Test(New Zealand v. France) Case, August 1999, vol.98, no.3, theJournal of International Law and Diplomacy, p78

In this Nuclear Test Case, Konisky points out two benefits; (1) indirect-

ly, the international community as whole put public pressure on the

French nuclear test policy, and (2) also the French decision to discon-

tinue its nuclear testing in the South Pacific was undoubtedly in large

part due to the availability of the ICJ135. I think that one of the bene-

fits of the dispute is to bring a matter to public attention, as Konisky’s

indicated. However, after all, the important issue the question of

whether or not France was liable for the deposition of radioactive fall-

out on other nations could not be considered in the Court, because of

the technical problem of jurisdiction.

This Nuclear Test Case seemingly focused more on the jurisdictional

problems of whether the ICJ could enter both disputing countries,

rather than the environmental question. Thus, ICJ’s jurisdictional

limitations reduce its opportunities for tackling important issues.

I feel that the number of environmental disputes brought to the ICJ is

very small, compared with other issues in international law. The

dependence of the Court on political and economic wills to assert

jurisdiction is very inconvenient and an obstacle to environmental

protection. I consider that environmental disruptions have become

an international concern.

Regarding jurisdiction in the ICJ, I consider that if all member states

would automatically accept jurisdiction or if jurisdiction were com-

pulsory in respect of environmental legal instruments, the Court might 八八


────────────135 supra note 70

be more able to contribute in both roles ; dispute settlement and

development of international environmental law. Since the sugges-

tion that jurisdiction on human rights agreements should be recog-

nized by all states was accepted among some states, jurisdiction on

the environment may also be recognized by all states136.

Nowadays, some international issues go beyond sovereignty. States

cannot say, “it is our problem, not your business!” Human rights

issues, as mentioned above, are a relevant illustration. They might

become a universal concern in some respect, e.g. prohibition of geno-

cide and torture. I consider that the environment is a universal issue

as well. Ecological problems cannot be resolved by only one or a

few states. Thus, I consider that this universal issue should be a mat-

ter for the universal jurisdiction. However, the question may be

raised, is environment really universal, or near universal, or a priority

issue? Although, in the recent trend, environmental protection is rap-

idly developing, will all states accept jurisdiction? In some cases,

economic/development projects have priority, rather than protection

of the environment. Environmental issues often conflict with eco-

nomic benefits, and sometimes with politics. I think that developed

countries and ecologically minded countries such as Germany and the

Scandinavian countries might accept, but third world countries in the

八七

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────────────136 supra note 124, at p495; December 7 1988, Mr. Gorbachev suggested inthe UN General Assembly that all states might recognize the jurisdiction ofthe ICJ in respect of human rights agreement. The February 10,1989 decreeof the Soviet Union recognized the jurisdiction of the ICJ in respect of the sixtreaties concerned with human rights. Former communist bloc countries fol-lowed it. They withdrew their reservations to the jurisdiction clauses ofHuman Rights conventions.

process of development will be reluctant to accept it.

Enforcement

Thirdly, I suspect that Jennings’ idea that under 94 article of the

Charter, the Security Council can perform the role of

enforcement/sanction for the ICJ’s decision is optimistic. He also put

forwards the optimistic idea in terms of “veto” that “now that the

Security Council is getting used to being able to act, and has been at

least to some extent rescued from the hobbling effect of the “veto”,

this power could in future be of practical significance. An environ-

mental issue could well be a situation where article 94 could come

into its own”137.

Security Council enforcement is very attractive in the international

community which lacks on enforcement mechanism, because as

known, international law is based on pacta sunt servanda. However,

the decisions of the Security Council are political. Certainly, during

the cold war, unnecessary use of the veto undermined international

concerns. Nowadays, the end of the cold war raises the possibility of

unanimous or near unanimous decisions in the Security Council.

Thus, it seems that the mechanism of international security in the

Security Council, which was envisaged by the drafters of UN Charter,

is being realized.

It is considered that the environment has become an international con-

cern. As Konisky mentions, the environment is also one of the secu- 八六


────────────137 supra note 104, at p243

rity concerns in the world. Political considerations should not be

allowed to undermine international environmental protection. This

would negatively influence the erga omnes obligations to international

“environmental protection”, and be a barrier to creating an interna-

tional environmental legal order. It may be questioned whether one

of the permanent members in the Security Council became a party in

a particular dispute, the Security Council would use sanctions under

article 94? And could it work well without veto and political consid-

erations? Very likely the dispute would never be referred to the

Court.

In fact, the following example show the weakness of

enforcement/sanction in the Court. As mentioned above, in the case

Gabciokovo-Nagymaros, the Court found that both Hungary and

Slovakia had breached their legal obligations in 1997138. In 1998,

again Slovakia claimed that Hungary had further delayed implement-

ing the judgements. The former maintained that it wanted the Court

to determine the modalities for executing the judgements139. As this

example shows, states sometimes do not respect decisions. The lack

of enforcement/sanction allows delinquent states to ignore the judg-

ments to ICJ.

The enforcement/sanction problem is not only a problem for the ICJ.

It is a general problem in the field of international law. I suspect that

八五

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────────────138 Gabcikovo-Nagymaros Case, op.cit. p20139 ICJ, Gabcikovo-Nagymaros Project(Hungary/Slovakia), Slovakia requests anadditional Judgment, 3, September, 1998, http://www.icj-cij.org/icjwww/ipresscom/iPress1998/ipr9828.htm

the establishment of ICEJ can resolve this problem. Even if the ICEJ

offer the enforcement to others, probably the UN (which has the most

strong sanctions), it will be affected by political considerations.

3) Can a special environmental Chamber work adequately?

As I mentioned above, a special Chamber was established under arti-

cle 26 (1) of ICJ statute. This is the first special Chamber that the

Court has created since its inauguration in 1946140. On the other

hand, there is another style, ad hoc, of Chamber based on article 26

(1). An ad hoc Chamber is formed at any times to deal with a “partic-

ular case”. The ad hoc style has a time limit, so it is not suitable to

tackle environmental issues and contribute to the development of

international environmental law. It should be welcomed that a spe-

cial environmental Chamber was established under article 26 (1).

With respect to the need for a machinery for environmental dispute

settlement, this Chamber is expected to work adequately. By article

90 of the Rules of Court, procedures before Chambers are, subject to

the Statute and the Rules relating specifically to Chambers, governed

by the provisions of the Rules applicable in contentions cases before

the Court141. Several features of the Court’s procedures are of practi-

cal significance in relation to the resolution of international environ-

mental disputes. These features, which the Chamber also enjoys and

which other Chambers have already availed of, are numbered for con-

八四


────────────140 Valencia-Oapina, The use of Chamber of the International Court of Justice, inLowe & Fitzmaurice (ed.), Fifty Years of the International Court of Justice,Cambridge University press, 1996, p521141 Valencia-Oapina, op.cit. p524

venience142;

(1) The judgements of the Chamber are binding on the parties and

parties have a right under article 94 of UN Charter to request the

Security Council to take measures to enforce the judgment in the

event of non-compliance. (2) If the resolution of the dispute need

extensive factual or scientific determinations, the Chamber could

make these determinations in consultation with assessors appointed

under Article 30 (2) of the Statute. (3) Under 41 of the Statute, the

Chamber has the power to indicate interim measures of protection to

preserve the rights of parties pending the Court’s judgments, if cir-

cumstances require it. (4) Under 62 of the Statute, the Chamber may

allow a state to intervene if it has “an interest of a legal nature which

may be affected by the decision in the case”.

Also, it should be pointed out from the experience of the ad hoc

Chamber that, compared with the full court, the Chamber can settle

matters more speedily. The full Court takes a great deal of time over

its procedures until a final judgment143. Since the Court consists of

fifteen members, its procedure is necessarily complex144. On the

other hand, however, the Chamber consists of a small number of

judges, so its procedure is quicker and simpler145. Moreover, some

Judge suggest that the Chamber should be used for consideration of

Advisory Opinions146.

八三

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────────────142 Valencia-Oapina, op.cit. p524-p526143 Valencia-Oapina, op.cit. p508-p509144 ibid145 ibid146 Valencia-Oapina, op.cit. p525-p527

However, there are some critiques of the Chamber. First of all,

Jennings himself, who regards that the Court can function well in eco-

logical cases, also comments on the present Chamber system. He

notes that the members of a Chamber remain also members of the full

Court147. He said that “if, therefore, a chamber of the Court is faced

with a very considerable task-as the Chambers were in the Gulf of

Maine case, and particularly in the Land, Island and Maritime Frontier

case-it is practically unavoidable that the full Court should mark time

in order to permit the members of the Chamber to perform their task.

Thus, the chamber system does face the Court with an awkward

dilemma”148 .

Secondly, cases of interest are most of the time submitted to the full

Court149. In fact, two big environmental cases (Nauru Cases and

Gabcikovo-Nahymarous Project Case) went to the full court150. So, will

the Chamber have the opportunity to deal with considerable environ-

mental tasks?

Sands also pointed out some negative facts to regarding the establish-

ment of the environmental chamber. The establishment of the

Chamber in 1993 was motivated by the political desire to prevent the

establishment of a separate international environmental court151.

Although a special environmental Chamber might contribute the envi-

八二


────────────147 supra note 124, at p496148 ibid 149 supra note 124, at p496-p497150 ibid151 supra note 67,at p 226

ronmental law, I cannot say anything about it. It is too early to judge

the Chamber’s work, because it does not have much experience in

dealing with environmental cases.

Assessment

The above discussion has presented the arguments for and against the

ICJ’s function in relation to environmental issues and whether it can

act instead of the ICEJ. Ideally, I feel that the ICEJ, which is an

independent judiciary from the UN, should be established. The ICJ

has contributed to the development of international environmental

law. However, the Court faces technical problems (jurisdiction) in

regard to dispute settlement.

However, the establishment of ICEJ lacks reality. Probably, states do

not want to relinquish their sovereignty by accepting the jurisdiction

of ICEJ. Normally states do not want to accept decisions from a

third party, e.g. from an International Court. As Konisky mentioned,

Postigione’s idea, the establishment of an ICEJ is “supranational” and

remote from reality152. And it is seemingly too simple an idea to

resolve the problems of environmental dispute settlement facing the

present judiciary.

八一

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────────────152 supra note 70

Chapter r

Most current victims of environmental harm are individuals.

Moreover, nowadays individuals suffered from environmental disrup-

tion not only by other states in tranboundary cases, but also by their

own governments in the domestic area. In the previous Chapter,

however, it was noted that harmed individuals in environment cases

cannot directly access the international judiciary, except for the

regional court dealing with human rights issues. It was argued that

this is an essential problem in current environmental disputes and for

making an international environmental legal order.

After all, such individuals can access only national courts for their

remedy. Thus, according to the 1992 Rio Declaration, all states

should provide “effective access to judicial and administrative pro-

ceedings, including redress and remedy”. However, one concern is

“can a national court work effectively as a judiciary in the field of

environment?” In general, the term “effective” is tricky. After all, it

is dependent on states’ discretion. If the answer is “no” or “a little”,

individuals do not have the opportunities to claim and accept reme-

dies. Also, the problem is exacerbated by non-compliance with inter-

national environmental law in the domestic area.

A) What is the role of the national court?

As mentioned above, normally, once states ratify a treaty (internation-

al law), they have to implement it adequately according to interna-

tional treaties. However, the problem is that if the treaties’ obliga-

tions are not domestically implemented, they will usually be difficult

八〇


to enforce in national courts153. Then, after implementing obligations

domestically, a state must ensure that it is complied with by those

within its jurisdiction and control.

In democratic countries, the separation of the administrative, legisla-

tive, and judicial branches of government is essential. These three

institutions should not be infringed by each other. The role of the

judiciary is, I feel, not only to deal with the cases but also to monitor

the other two branches of government. The judiciary should check if

they neglect and violate domestic law, and judiciary should some-

times advice and direct them to stop their violations.

So, then, what are the national judicial functions in the field of inter-

national environmental law? Bodansky & Brunnée suggest three

answers: (1) to resolve transboundary environmental disputes, (2) to

play a law-making role, by influencing the development of intentional

law, and (3) to implement international law154.

Regarding the first task, the national courts are governed by interna-

tional legal instruments such as 1974 OECD Council

Recommendation on Principles Concerning Transfrontier Pollution in

transboundary case. However, the Chernobyl case shows that national

courts cannot adequately work for transboundary litigation. That is

one of the main reasons for demanding the establishment of the ICEJ.

It will be discussed further below.

七九

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────────────153 supra note 21, at p144154 Bodansky & Brunnée, The Role of National Courts in the Field ofInternational Environmental Law, 1998, Vol.7, Issue 1, RECIEL, p13

On the other hand, national courts can supplement the implementation

in the circumstance where governments do not adequately comply

with their obligations under international environmental law155. After

ratifying treaties, states make the domestic law at their discretion. If

the legislature fails to make adequate domestic law, the judiciary

should point out the problem. Moreover, legislation and compliance

with international environmental obligations certainly rely on states’

capacity, interest, and political system. Developing countries inade-

quately implement international obligations, because environmental

protection conflicts with their development projects, most of the time.

They suffer from financial shortage, and so it is difficult to comply

with international environmental obligations. However, even in such

domestic situations, the national judiciary should try to play with a

supplementary role for implementation. However, this depends on

states being democratic countries.

B) The importance of judicial attitude for implementation; Judicial

Activism

I think that the judicial attitude, particularly judicial activism, could

also encourage the enforcement of international obligations in the

domestic arena. Judicial activism could be defined the behaviour of

the national judiciary to decide and act beyond the law. Judicial

activism would be important in the circumstance where the govern-

ment does not accept and is reluctant to implement international obli-

gations in the field of “environment”.

七八


────────────

155 ibid

For instance, in the current Indian case, the Constitution (42nd

Amendment) Act, 1976, which created fundamental duties of citizens

to protect the environment, was considered to be unenforceable by the

judiciary156. However, the Supreme Court added a new dimension to

the character of these fundamental duties in a remarkable decision in

M.C. Mehta v Union of India (1991). In the decision on this case, the

Court directed the other government institutions, namely, the Indian

government, Minister of Environment, and Union Minister of

Information and Broad Casting157.

This judicial activism towards making environmental regimes is wel-

comed because it encourages further protection of the environment.

However, regarding this judicial attitude beyond the law, some

researchers fear “notwithstanding the beneficial impact of the Court’s

approach on environmental protection, the trend of exercising juris-

diction without specifying the right violated leads to jurisprudential

confusion and judicial arbitrariness. The trend should be halted and a

more comprehensive and systematic method adopted”158.

C) What are the problems of national courts?

There are a couple of problems in national courts from current Indian

cases. First of all, the national courts are sometimes affected by poli-

tics, although the administrative, legislative, and judicial bodies

七七

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────────────156 Nandan S. Nelivigi, Poojitha, M.G., and Armin Rosencranz, The Judiciaryand the Environment : Recent Trends and Developments, 1993, 23/2, EPL, p103157 ibid158 Nandan S. Nelivigi, Poojitha, M.G., and Armin Rosencranz, The Judiciaryand the Environment: Recent Trends and Developments, op.cit. p103-104

should not infringe each other. For instance, in the Indian case (M/s.

Sarawati Sugar Mills v. Haryana State Pollution Control Broad and others

(1991)), the Supreme Court interpreted the Water Less Act, as a judicial

work159. The purpose of the Act was to prevent/control water pollu-

tion, and the legislature (parliament) claimed so160. However, the

Court reaffirmed that the Act is a fiscal statute, not to regulate/control

water pollution161.

However, the decision of the Case was nullified by amendments to

the above Act162. Indian researchers pointed out that the legislative

change clearly indicated that parliament disagreed with the Supreme

Court’s interpretation163. As this case shows, political infringement

on the judiciary can impede developments or compliance with envi-

ronmental obligations. Since national compliance is essential for

making environmental protection regimes, such infringement certain-

ly should not occur.

Secondly, the national courts are sometimes affected by economic

considerations, especially development projects. Development proj-

ects normally conflict with environmental protection. How can we

balance between protection of the environment and development?

That is the most difficult aspect in sustainable development.

七六


────────────159 Nandan S. Nelivigi, Poojitha, M.G., and Armin Rosencranz, The Judiciaryand the Environment: Recent Trends and Developments, op.cit. p106160 ibid161 ibid162 ibid163 ibid

According to the Indian judiciary, the Supreme Court showed “a strik-

ingly deferential approach with regard to cases involving the review

of large-scale development projects”164. The Court defers to the

political branches when large economic interests are at stake165.

In the period between the ends of 1980s and the beginning of 1990s,

there were some cases in respect of ecological disruption and the

environmental harm166. These were caused by Indian large-scale

development projects. In particular, in the case of Banwasi Seva

Ashram v. State of U.P. (1987), the Court displayed its reluctance to

interfere with large-scale developments projects167. The Court took

the stance that industrial growth and provision of energy are more

important concerns168.

Indian researchers pointed out that “the Supreme Court’s view of envi-

ronmental protection and industrial growth as two conflicting and irrec-

oncilable interests is particularly noticeable. Inevitably, the conflict is

resolved by the Court in favour of industrial growth. This is consis-

tent with the dominant mode of thinking in government circles”169.

I think that, although political branches should not infringe the judici-

七五

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────────────164 Nandan S. Nelivigi, Poojitha, M.G., and Armin Rosencranz, The Judiciaryand the Environment: Recent Trends and Developments, op.cit. p107165 ibid166 Nandan S. Nelivigi, Poojitha, M.G., and Armin Rosencranz, The Judiciaryand the Environment: Recent Trends and Developments, op.cit. p104-p105167 Nandan S. Nelivigi, Poojitha, M.G., and Armin Rosencranz, The Judiciaryand the Environment: Recent Trends and Developments, op.cit. p105168 ibid169 ibid

ary, development in developing countries is more urgent than the pro-

tection of environment. In most cases, development conflicts with

environmental issues. In most conventions, developing countries

claim their development rights rather than protection of the environ-

ment. For instance, in the CITES, South African countries like

Zimbabwe argued that they want to utilize the trade of ivory which is

listed in Appendix I (the species threatened with extinction by

trade)170. Development is the first priority for developing states.

D) Benefit of Litigation and its difficulties

I consider that litigation from citizens could contribute to the develop-

ment of environmental law. Such litigation is not just for economic

personal interest to remedy environmental damage or based upon the

citizens’ representativeness of the public interest in environmental

protection. Litigation normally raises public concern/awareness in

terms of environmental problems through mass media such as TV and

newspapers. Sive also mentioned in respect of the benefits of litiga-

tion that, as with judicial activism, litigation brings social activism171.

The social activity might trigger legislation of more adequate law and

encourage more litigation in the field of environment.

Moreover, if the national court considers environmental case, exten-

sively, obligation under international environmental law could be

七四


────────────170 See, Yamin & Gualdoni, A Case Study of A Regional Approach to Compliancewith CITES Southern Africa, in Cameron, Werksman, and Roderick (eds.), ImprovingCompliance with International Environmental Law, London, Earthscan, 1996,p187-p210171 Sive, The Litigation process in the Development of Environmental Law, 1995,25/6, EPL, p350

strengthened. Schofield &Thompson also mention some advantages

of “citizens’ suit”: 1) preventing environmentally harmful develop-

ment or projects, 2) ensuring governmental compliance with regulato-

ry requirements, 3) educating and motivating governments and citi-

zens in relation to necessary law and policy reform172.

Bodansky & Brunnée also focus on the national courts’ decisions in

environmental litigation, stating that it is their task to implement

international obligations in relation to the environment in the follow-

ing ways:

(1) by applying international environmental norms, national courts

implement the norms in the individual case, (2) if courts implement

international norms with sufficient regularity, national court decisions

could have a deterrent effect; they shape future conduct, and (3)

through their decisions, national courts can help incorporate interna-

tional norms into national law, thereby supplementing (or even cor-

recting ) the work of legislatures173.

I really feel that litigation is one of the factors to that can create envi-

ronmental enforcement regimes in the domestic arena. However,

unless ordinary people or harmed individuals can gain easy access in

cases of environmental disruption, the benefits of litigation for devel-

opment in international environmental law will not be realized. Two

points could be considered as obstacles for individuals to access the

七三

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────────────172 Schofield & Thompson, Access to Justice and the Right to a HealthfulEnvironment in Canada: Public Participation in Environmental Decision Making,1994, vol. 3, no. 4, RECIEL, p232173 Bodansky & Brunnée, op.cit. p13

courts.

The first concern, reflected in the Canadian legal situation, is that “it

takes a lot of money for litigation”174. Unless the public sector pro-

vide funds to facilitate potential litigation for environmental justice,

little litigation will occur175. Furthermore, the prospect of having to

pay legal costs for the other side is usually one of the greatest deter-

rent to litigation176.

In Canada, currently sources of funds are available for environmental

litigation. For instance, Legal Aid Societies in Canada provide the

funds for particular environmental justice cases177. It is argued

among lawyers that the government should establish funding mecha-

nisms. However, surely it cannot afford to find all environmental

justice cases.

In the general rules of Canadian jurisdiction, the Court has discretion

to decide the award of costs178. In most Canadian cases, “the loser

pays the winner’s litigation fees”179. Since prospective litigants are

rarely sure of victory, this is a great deterrent to bringing an action.

What is important for litigation is that ordinary people can have easily

七二


────────────174 see, Schofield & Thompson, Access to Justice and the Right to a HealthfulEnvironment in Canada: Public Participation in Environmental Decision Making,1994, vol. 3, nom. 4, RECIEL175 Schofield & Thompson, op.cit. p234176 ibid177 Schofield & Thompson, op.cit. p235178 Schofield & Thompson, op.cit. p236179 The same system applies in the UK, see Sands, Access to EnvironmentalJustice in the European Community : Principles, Practice and Proposals, 1994, vol.3, no.4, RECIEL p212

access. Canadian environmental lawyers have argued for the protec-

tion of public interest environmental litigants against cost awards180.

Secondly, some states, like the UK, restrict the locus standi for individ-

uals. Such restriction prevents individuals from bringing action

before the courts. Locus standi describes the ability of a person to

show a sufficient legal interest in a matter to allow him or her to bring

a case to court181.

However, the problem is how much can states accept the locus standi

for individuals and NGOs? Certain problems need to be overcome to

give them easier access to litigation procedures.

One of the problems of locus standi is, what constitutes sufficient legal

interests? The right of locus standi is dependent upon whether or not

the plaintiff has a sufficient interest in launching the action182. For

instance, in the UK, traditionally it is necessary to show a material

interest which affects a persons’ economic or physical well-being,

rather than an ideological interest relating to the affirmation of reli-

gious or moral principles. Environmental protection may lie any-

where between the two183. The question is, can ecological interest

adequately become sufficient interests? or can it be accepted by

七一

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────────────180 Schofield & Thompson, op.cit. p235181 supra note 179, at p208182 Betlem, Environmental Locus Standi in The Netherlands, 1994, vol. 3, no. 4,RECIEL, p238183 supra note 179, at p208 ; In England, it is very difficult for an individual toprove to a court that her or his physical or economic well-being will beadversely affected.

states? It is not only a legal problem in the UK, but also in other

countries. Actually, the definition of environment is ambiguous. Can

a state easily accept the locus standi for such an ambiguous interest?

The Philippine OPOSA case was innovative in terms of locus standi.

In this case, Philippine minorities, as plaintiff, brought an action

about the rapid deforestation in Philippine184. They brought the case

not only for their own remedy, but as representatives of the all citi-

zens of Philippines. That point is significant, because the minorities

sued based on the public interest (actio popuraris). Moreover, they

also considered the interests of coming generations. Thus, the peti-

tioners’ “sufficient interest” to sue on behalf of succeeding the genera-

tions can be based on the concept of intergenerational responsibility,

insofar as the right to a balanced and healthful ecology is

concerned185. Fortunately, the court accepted the locus standi and

emphasized that “every generation has a responsibility to the next to

preserve that rhythm and harmony for the full enjoyment of a bal-

anced and healthful ecology”186.

However, Rest criticized the court’s grant of the petitioner’s locus

standi, although it was welcomed187. He considered that “widening

七〇


────────────184 see, Rest, Implementing the Principles of Intergenerational Equity andResponsibility, 1994, 24/6, EPL. See also, La Vina, The Right to a SoundEnvironment in the Philippines : The Significance of the Minors Oposa Case, 1994,Vol. 3, no. 4, RECIEL185 Rest, Implementing the Principles of Intergenerational Equity andResponsibility, 1994, 24/6, EPL, p 316186 ibid187 ibid

the class suit to everyone living in the country, without any restric-

tions, seems to be dangerous and may lead to impracticability of this

instrument”188. The court should have concentrated more elaborately

on the legal interest the plaintiff must have in the subject matter of the

suit.

Moreover, Rest also made on the interesting point in respect of the

right to a balanced and healthful ecology. He stated that it is very

broad and vague, so it cannot become subject to legal rights189. That

is related with what I was said above, that the environment is an

ambiguous interest for litigation. It is seemingly hard to show a “suf-

ficient interest” for bringing the case to court. However, this case

was raised in a developing country. It was innovative and it might

contribute to the development of international environmental law,

especially intergenerational right, as mentioned in the article 1 of the

Stockholm Declaration and article 3 of the Rio Declaration.

Another problem is, who is entitled to locus standi? The question is,

can individuals and NGOs bring a case, even if they are not directly

harmed by the environmental damage? Can they access in the public

interests (action pupularis) in an environmental issue? If environmen-

tal interests groups, which do not themselves suffer environmental

damage, are entitled to bring a case on behalf of the interests of large

groups of citizens, I think that would be of great benefit for creating

六九

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────────────188 ibid189 supra note 185, at p 318

environmental protection. In fact, in two countries, the UK and

Netherlands there have been the cases where the courts accepted envi-

ronmental groups. For instance, the THORP case in the UK opened

the door to public interest litigation by environmental groups (Green

Peace in this case)190. In this case, environmental groups were recog-

nized as being able to represent the people who would be directly

affected by the governmental action complained of, if they can show a

genuine interest in the matter and sufficient expertise. After all,

Green Peace was accepted191. In the De Nieuwe Meer case (in 1986) of

in Netherlands, environmental protection groups also were entitled to

bring suits to court192. That is big step for litigation for environmen-

tal justice.

I feel that environmental groups and ordinary individuals can/should

bring litigation, instead of direct victims. Environment is not only

for some people. It is for all people, and environmental issues are

public concerns. Thus, “who has the entitled of environmental jus-

tice?” is not a serious question. In S.P Sharma Dhungel v. Godavari

Marble Industries case (in Nepal), a NGO, instead of the direct victims,

claimed that Mining Industries violated the right of the local popula-

tion to enjoy a healthy and clean environment193. The statement of

the Supreme Court was innovative: “Pollution can adversely affect

people’s right to life and it was everyone’s right to seek remedy

六八


────────────190 supra note 179, at p210191 ibid 192 Betlem, op.cit. p240-p241193 Subedi, Environmental Inputs into the Planning Process and Access to Justice,1998, 28/2, EPL, p101

against such pollution”194. The Court continued that “environmental

issues were issues of public concern and importance”195. I consider

that Environment is a public concern. Thus, it can be justified that

NGOs can access the Court instead of direct victims.

Secondly, NGOs/ordinary individuals, who bring the case to the court

instead of direct victims, may also suffer environmental harm in the

future. For instance, they may bring a case about water pollution

which directly harms minorities who live in the upper reaches of a

stream. In the future, NGO/ordinary people may also become vic-

tims, who cannot drink fresh water. We cannot anticipate expect

how and where environmental pollution may come and affect us.

Thus, NGOs represent everyone.

However, there is a counter reason to restrict the locus standi. Sive

warned against judicial activism, as well as, the possible flood of liti-

gation196. That is one of the strongest arguments against permitting

citizens’ suit in the environmental field. The UK has the reason of

preventing the flood of litigation, for keeping restrictions on permis-

sion of locus standi197. A relaxing of such requirement in environment

case would probably lead to an enormous number of litigations in the

ecological interest. This balance between locus standi and the flood

of litigation is a difficult argument.

六七

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────────────194 ibid195 ibid196 Sive, op.cit. p352 ; he mentioned that one of the problems in Americanjudicial situation is the food of litigation. 197 supra note 179, at p208

E) How can damaged individuals access the national courts in trans-

boundary case? Can they succeed?

In the case of inter-environmental disruption (transboundary harm),

individual victims cannot claim to international courts before their

own national courts, except for regional courts in matters of human

rights. Also, they cannot sue to the national courts in other countries,

which caused the transboundary pollution. Thus, the national court

should be an excellent resort for individual victims in transfrontier

cases.

The following provisions mention that individual victims can access

the national courts, and how national courts should function for indi-

viduals. As I mentioned above, article 10 of 1992 Rio Declaration

provides for the individual to have “effective access to judicial and

administrative proceedings, including redress and remedy”. Article

13 of the Declaration also encourages each state to “develop national

law regarding liability and compensation for the victims of pollution

and other environmental damage”.

Moreover, early international treaties and agreements already mention

redress for individual victims in the case of transboundary harm.

These earlier efforts sought either to establish principles or rules gov-

erning equal access to national courts by victims of tranfrontier pollu-

tion, or to establish the jurisdiction of courts in the event of trans-

boundary incidents198.

六六


────────────198 supra note 33, at p66

Several OECD Council Recommendations of the mid-1970s identify

the constituent elements of a system of equal rights of access for indi-

vidual victims who are affected or likely to be affected in their per-

sonal or proprietary interests by transfrontier environmental harm199.

These OECD recommendations200 concerned with transfrontier pollu-

tion provide that individual victims can have access, in the country

where the pollution originated, to information, participation in hear-

ings and enquiries and recourse to and standing in administrative and

judicial procedures to prevent pollution, have it abated, and obtain

compensation for the damage caused201. These non-binding OECD

instruments are supplemented by a range of treaty and other binding

obligations such as 1974 Nordic Convention on the Protection of the

Environment, which address equal access or the jurisdiction of courts

over transboundary disputes202. This convention applies to all envi-

ronmentally harmful activities resulting in discharges which cause

any form of environmental nuisance, including air and water pollution

or radioactivity. It affords individuals full procedural rights before

the courts or administrative authorities of any of the parties to the

same extent and on the same terms as a legal entity of the state in

which the activities are being carried out203.

六五

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────────────199 ibid 200 OECD Council Recommendations, Principles Concerning TransboundaryPollution, Rec. C(74)224, 1974; Equal Right of Access in Relation toTransfrontier Pollution, C(76)55, 1976; Implementation of a regime of Equalof Access and Non-Discrimination on Relation to Transfrontier Pollution,Rec. C(77)28, 1977201 supra note 33, at p67202 ibid 203 Article 3 of 1974 Nordic Convention for the Protection of theEnvironment

Also, individuals can have access for their remedy by several treaties

establishing international rules on civil liability204. For individual

victims in transboundary harm, one of the advantages of recourse to

civil liability proceedings is that this affords a direct and immediate

remedy without resort to interstate claims or the complexities of the

law of state responsibility205. Another advantage is that recourse to

civil liability helps implement the polluter pays principle206. This

principle provides an important justification for harmonization of

national environmental liability laws, and for affording transboundary

access to appropriate remedies207.

In relation to the jurisdiction of national courts, these legal instru-

ments fall into categories : those treaties requiring victims to bring

proceedings before the courts of the state in which the transboundary

pollution originated, and those which allow victims to choose the

courts of the state in which either the pollution originated or the dam-

age was suffered208. The nuclear liability conventions adopted in the

1960s, such as 1960 Paris Convention (article 13) and 1963 Vienna

Convention (article pq (1)), fall into the former category209. Both

mention that once the liability of the operator of a nuclear installation

is clearly proved, in accordance with the Conventions, jurisdiction

“shall lie only with the courts of the Contracting Party in whose terri-

六四


────────────204 supra note 33, at p67205 Birnie & Boyle, International Law & the Environment, Oxford,Clarendon Press, 1992, p201206 ibid207 ibid208 supra note 33, at p67209 ibid

tory the nuclear incident occurred”. However, without international

co-operation and agreement, transboundary civil proceedings face

several serious obstacles in many jurisdictions. If the rule is applied

by some legal systems which denies courts jurisdiction over actions

concerning foreign land, it may bar plaintiffs from bringing proceed-

ings in the courts of the state from which the harm has originated210.

Also even if the plaintiffs try to avoid this jurisdiction problem by

resorting to courts in their own state, where damage has occurred,

they encounter another problem, the defence of sovereignty

immunity211. In the case where the foreign enterprise is governmen-

tal in character, such problems might arise. Jurisdiction problems

and sovereign immunity are barriers for individual victims in trans-

boundary litigation, as in the Chernobyl case.

The second category of conventions assuring a role for individual enforce-

ment of environmental laws are those establishing private international

law rules allocating jurisdiction to national courts over a range of civil and

commercial matters, including disputes arising out of the law of tort212.

In general, these conventions fall into the latter category, allowing the

victim a choice of courts213. Although they were not prepared with envi-

ronmental pollution and disputes in mind, they are capable of being

applied to a broad range of transboundary environmental disputes214.

六三

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────────────210 Birnie & Boyle, op.cit. p202211 Birnie & Boyle, op.cit. p203212 supra note 33, at p67213 ibid 214 ibid ;1968 Brussels Convention, to which EC member states alone maybecome Parties, has number of purposes, including the free circulation ofjudgements throughout the EC and establishing jurisdiction rules for civil andcommercial matters

However, the above instruments are rarely used in transboundary

environmental litigation, certainly in German judicial experience215.

In the case of Lingen Nuclear Power Plant case, judges decided that the

Dutch-nationality plaintiff, who brought the case to the German

Court, could not derive a right to claim from the OECD Resolution

“Non-Discrimination and Legal Access”, because of its soft-law char-

acter216. States do not need implement and enforce compliance with

non-binding instruments. That is the weakness of soft law, such as

the OECD Recommendation.

Moreover, international environmental law is seldom applied in

German cases including this Lingen Nuclear Power Plant case in trans-

boundary harm. Rest researched the German judiciary in the trans-

boundary cases and then pointed out that “regrettably, an analysis of

the practice of the German judiciary in transboundary environmental

litigation shows a tendency that only few judgements address aspects

of international environmental law, and if so, they do it indirectly”217.

Rest mentioned in another paper that in cases of transboundary pollu-

tion, individual victims have no prospect of success and only a limited

opportunity to bring an action against a foreign polluter, and specifi-

cally against a foreign polluter state or its organs, before the national

court218. In fact, the Chernobyl case clearly displayed that individual

六二


────────────215 see, Rest, International Environmental Law in German Courts, 1997, 27/5,EPL 216 supra note 215, at p416217 supra note 215, at p409218 supra note 3, at p63

victims could not successfully litigate for their remedies.

The obstacles can be categorized into the following two groups, (1)

political considerations and (2) legal procedures. As I mentioned in

the previous chapter, dispute settlements are normally influenced by

political considerations or sometimes, economic considerations as

well. In the case of transboundary, individuals can firstly only bring

the case to their home-courts, and then the state might claim to the

polluter states regarding ecological damage to their sovereignty and

their nations’ interests and property. However, the relationship

between states is political. As I mentioned above, states prefer politi-

cal solutions rather than legal solutions.

In the Chernobyl case, injured countries, namely Germany, Australia,

Sweden, Switzerland, and Finland, immediately after the accident,

declared their immense indignation and determination to claim com-

pensation against the former USSR219. However, in the end, no law

suit was filed either before an international or a national court220.

They considered the existing difficult economic situation in the

USSR221. Furthermore, for political reasons, they were reluctant to

disturb and endanger the initiatory steps towards a better political

relationship with the Gorbatchov government in this moment222.

Thus, states abstain or refuse to bring actions to protect their own

injured individuals, because of political discretion. However, one

六一

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────────────219 supra note 14, at p174220 ibid 221 ibid 222 ibid

concern is that this behaviour of states hinders the further develop-

ment of a customary public international liability law of states223.

Moreover, the polluter-pays principle related to liability for environ-

mental damage was not satisfied, because after all the USSR did not

pay compensation to damaged individuals in the Chernobyl case. It

should be noted that in the Bonn case, in Germany, the German gov-

ernment paid compensation to those damaged from its own nation,

instead of the polluter, the USSR224. Individuals (plaintiffs) could

achieve their interest, compensation, from the German government.

However, in international environmental law, particularly to accom-

plish the polluter-pays principle, this behaviour of the German gov-

ernment did not contribute to development. The polluter-pays princi-

ple requires that the costs of pollution and consequential costs should

be borne by the person responsible for causing the pollution225. The

compensation in the Bonn case was borne by the German taxpayer, not

the polluter, the USSR226. This could be an obstacle to increasing

compliance with environmental obligations. To achieve full compli-

ance and to impose erga omnes obligations in the field of environment

are nowadays crucial issues, considering the significant change in the

eco-system as a result of huge environmental damage.

Secondly, regarding procedural aspects, Rest also pointed out the fol-

lowing disadvantages for individuals in the case of transfrontier

六〇


────────────223 ibid 224 supra note 14, at p176225 supra note 21, at p213226 supra note 14, at p176

harms227.

(1) Individuals mostly abstain from filing a lawsuit because of the

potentially high costs and the problem of dealing with a foreign

language.

(2) Immunity from jurisdiction may hinder the competence of the

home-courts as well as of the court of the polluter-state.

(3) Pursuant to rules on law of conflicts or of the public order, the

application of the substantive law can be excluded.

(4) Immunity from enforcement can bring down the enforcement of a

foreign decision.

Some European litigants damaged by the Chernobyl accident proved

these disadvantages in procedures. First of all, in the Baumann case

of Federal Republic of Germany (FRG), the plaintiff was faced with

financial difficulties during litigation228. Eventually he withdrew the

claim to the USSR and FRG229. That is a normal obstacle for indi-

vidual victims in litigation. They always suffer financial difficulties,

without public support.

Secondly, most of the cases in Germany and Austria caused by the

Chernobyl accidents were rejected because of jurisdiction problems230.

五九

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────────────227 supra note 3, at p63228 supra note 14, at ; for example, the Claimant had to pay 6,000DM only forexpert evidence showing that the USSR could not plead immunity of jurisdic-tion against the competence of the Munich Civil Court.229 supra note 14, at p175-p176 ; plaintiffs claimed the responsibilities ofcompensation against the USSR, Federal Republic of Germany, the federalstate of Bavaria and the municipality of Munich.230 supra note 14, at p175-p177

Plaintiffs in these cases claimed compensation against the USSR

itself. Two decisions of the Supreme Court in (Vienna) Austrian

case illustrated that the damaged individuals had no chance to claim

compensation from the foreign polluter, the USSR, before the nation-

al court, because of lack of jurisdiction231. Furthermore, as the

Supreme Court’s Decision of 14 April 1988 in Austria illustrated, the

courts denied the plaintiffs’ competence, because of lack of opportu-

nities of enforcement232. Even if the Austrian courts had judged for

the plaintiffs’ interests (compensation), the foreign state’s immunity

of enforcement from foreign judgments would hamper a successful

law suit233. Without enforcement, the judgement results would only

be “a worthless piece of paper”.

Thirdly, the Bonn case related to the Chernobyl accident also displayed

the problems in respect of substantial law. In this case, a lawsuit for

compensation against the USSR was filed before the civil court of

Bonn234. Once the court had accepted its jurisdiction, in substance it

elaborately discussed the existence of a liability claim which could be

based on the public international law obligation of early information

about radioactivity235. However, such an obligation of international

liability and compensation only exists between subjects of public

international law, i.e. the states236. Although the court furthermore

五八


────────────231 Two Vienna Supreme Court Decisions in 13th January 1988 and 14th April1988, in supra note 14, at p176-p177, 232 supra note 14, at p177233 ibid 234 supra note 215, at p415235 ibid236 ibid

stated that the action for compensation was based on the Paris and

Vienna Conventions on Third Party Liability in the Field of Nuclear

Energy, it could not come to play because the USSR had not ratified

these agreements237. Thus, the court concluded that this action could

not be directed against the state of the USSR238. After all, the court

rejected the claim for reasons of non-competence as well as the non-

existent prospect of success according to applicable substantive law239.

Assessment

As described above, national courts also have problems in internation-

al environmental law, especially individual remedy. National courts

sometimes are interfered with legislative or political considerations.

Furthermore, especially in developing countries, they are reluctant to

deal with litigation of the environmental disruption and ecocide

caused by development projects. Although domestic courts should

be effective resorts for individual victims, as article 10 of Rio

Declaration demands, courts cannot provide adequate remedy and

redress for them. Transboundary litigation, as in the Chernobyl case,

shows that the right of access for individual victims cannot succeed.

Thus, considering the individual remedy, an ICEJ is essential.

Conclusion

Does the world really need the International Court of Environmental

Justice?

五七

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────────────237 ibid 238 ibid239 supra note 215, at p416

Yes, ideally, but it is not a realistic answer to resolve the current prob-

lems in the field of international environmental law.

I have mentioned current problems of enforcement in international

environmental law. In chapter III, I have considered the problems of

dispute settlement. It is rare for environmental disputes between

states to be settled through legal methods such as accessing the ICJ.

States favour settlement by political negotiations among themselves.

I feel that even if dispute settlement is resolve politically, it will con-

tribute to environmental protection, because at least nations in disput-

ing countries are considering the environmental problems. It makes

the public awareness of environmental issues. The 1995 French

Nuclear Test was a good example, because it raised a great deal of

environmental awareness in the public and created the public pressure

on France. Also, international environmental law is used as a method

to resolve the issue during the negotiations. However, this approach

is too weak to enforce the international environmental obligations. It

is much more beneficial to resolve them using legal methods, i.e.

judgement by the ICJ. Resolution by the ICJ can make a legal order

to protect the international environment.

ICJ is now trying to tackle environmental issues, by establishing a

chamber under article 26 (1) in ICJ statute. Although it is welcomed,

jurisdiction problems still remain in the ICJ. States’ will is necessary

to invoke the ICJ’s jurisdiction. Otherwise the court cannot deal with

disputes. Moreover, individuals need the right of access to ICJ in

respect of environmental disruption, to some extent. Nowadays,

international law concerns not to only states. As in the case of

五六


human rights, international law goes beyond sovereignty. The envi-

ronment should be understood by the all people in the world to be univer-

sal, because its problems cannot be resolved by a few states and people.

Secondly, in Chapter IV, I have mentioned that although national

courts should be the “last resort” for harmed individual victims, indi-

viduals normally cannot achieve their interests such as remedy and

cessation of environmental harm. Sometimes, domestic courts are

infringed by political and economic interests, particularly in relation

to development projects. Moreover, restricted locus standi and finan-

cial problems are also obstacles to ordinary people bringing cases.

Moreover, in the case of transnational environmental litigation, indi-

vidual victims can seldom achieve their interests, because of the lack

of jurisdiction and enforcement over foreigners. Also, in such litiga-

tion, states are motivated by political consideration. They are reluc-

tant to claim compensation from polluter states for diplomatic rea-

sons. The Chernobyl case is the best example of this.

Thus, considering the problems of international and national judici-

ary, an ICEJ should be established ideologically and theoretically.

However, it is not a realistic idea and does not provide a realistic

answer to break through the current problems in international envi-

ronmental law.

First of all, we can easily understand the jurisdiction problem.

Definitely, countries are unwilling to relinquish their jurisdiction to an

international court. We can recognize this point from the process of

五五

（92）

creating the International Criminal Court. Jurisdiction was the most

controversial issue. In 1997, the Rome Statue of International

Criminal Court was signed by many states, but as known, the USA

and China opposed the treaty240. The success of the ICC is suspect.

Jurisdiction is so sensitive in international law, because states do not

want to be interfered with by others and accept the unfavourable deci-

sion from an international judiciary.

Secondly, Rest pointed out the financial problems. I agree on this

point. How much do you want to pay? I expect that developing

states will answer “nothing” or “little”. As I mentioned previous,

developing is the first priority for them. How can they pay money

for such a court, which might impede their development projects, by

judging for environmental protection?

Thirdly, it should be pointed out that there are enforcement problems,

although these are general problems in international law. There is no

global enforcement mechanism. In such a world, it is very hard to

expect that the new independent judiciary could enforce its decisions

on delinquent states, just as it is doubted whether the ICC can provide

a realistic answer in international humanitarian law. For instance,

can the ICC prosecute the American soldiers that commit genocide,

crimes against humanity, and war crimes? Which countries and pros-

ecutors would try to take them from the USA?

五四


────────────240 see, Arasanjani, The Rome of the International Criminal Court, 1999,Vol.93:22, American Journal of International Law, p22-p43

If an enforcement mechanism cannot be achieved, we should satisfy

deterrence in terms of environmental protection for all states, because

deterrence indirectly compels delinquent states. However, how can

we understand deterrence? It might not contribute to make the erga

omnes environmental obligations.

Thus, Postiglione’s idea of establishing the ICEJ is too simple and

seemingly inadequate to resolve the current problems in international

environmental law. Rest also mentioned that it is a controversial

idea241. Instead, Rest proposed another idea, which is seemingly

more realistic. He suggests the Permanent Court of Arbitration

(PCA). This institution is very flexible and unique, because it offers

facilities for four of the dispute settlement methods listed in article 33

of the UN charter; enquiry, mediation, conciliation, and arbitration242.

This PCA may grant access even to NGOs and individuals243.

Secondly, it might resolve the financial problems244. The operating

costs of the international Bureau are covered by the UN budget245.

Moreover, the costs of arbitration proceedings are borne by the par-

ties246. Thirdly, the PCA is very flexible with regard to the place of

arbitration247. Action does not need to take place in a particular place.

The place is important in the case of transboundary litigation, because

it provides the evidence of which countries caused the harm248.

五三

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────────────241 supra note 14, at p184242 supra note 14, at p183243 ibid244 supra note 14, at p184245 ibid246 ibid247 ibid248 supra note 3, at p65

However, I think that there still remain the technical problems of

jurisdiction. Jurisdiction is not compulsory249. So, if states do not

have the will to use the PCA, it will not have its jurisdiction. So I

think it is not very different from the ICJ.

So how should we tackle the current problems of dispute settlement

and of international environmental law? How can we encourage the

enforcement of obligations under international environmental law?

After all, we should resolve the problem by the existing instruments.

Focusing on the international and national judiciaries, as one sugges-

tion, ICJ could be reformed only in terms of environmental issues,

although I also wonder whether states would be willing to accept a

change in the ICJ’s structure. However, times are changing and

international law is consistently changing, and the situation of interna-

tional society is different from fifty years ago.

So what kinds of points should the court reform? First of all, the per-

manent environmental chamber should be strengthened. The mem-

bers of the chamber should be different from the members of the full

court. I think that researchers should also join in this chamber. It

should be given flexibility. By establishing the chamber in the court,

environmental issues can be resolved from different and multinational

angles. Today, environmental disputes concern in different problems

of international law. Thus, it is necessary to have help/supplement

from the full court. Secondly, the jurisdiction of the court should be

compulsory in terms of environmental issues, although this would be 五二


────────────249 supra note 14, at p183

difficult. However, the court should encourage this. Thirdly, the

right of access should be granted to individuals and NGOs.

However, there is a difficult arguments, to what extent should the

court grant access to individuals and NGOs? By granting the right of

access for NGO, probably they claim damage of the common her-

itage/global commons. NGOs’ interest is to protect whole environ-

ment. On the other hand, states normally consider the ecological

damage only in their jurisdiction, because of political considerations.

Individuals also claim their remedy.

International environmental law is now rapidly developing/increasing

day after day. Recent environmental disruption such as acid rain and

climate changing can be identified by ordinary people.

Optimistically, we are on the threshold of developing environmental

law toward erga omnes obligations. Moreover, the public awareness

of environmental harm is obviously increasing. Also, we should not

forget recent NGOs’ activities to encourage the improvement of inter-

national environmental law. I have focused mainly on dispute settle-

ment, but I feel that dispute avoidance is more essential. I take the

stance that prevention is better than cure in environmental disruption.

Thus, states should cooperate for dispute avoidance and compliance

with international environmental law. We should first think about

better methods to make states comply with their obligations, rather

than establish the new institution. To avoid disputes is better than to

settle disputes for environmental law and the environment itself.

五一

（96）

Bibliography

A) Primary Source

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Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v.

Iceland), Judgement of 25 July 1974, International Court of Justice.

Year 1974

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1) Book

Birnie, P. The role international law in solving certain environmental con-

flicts, in Carroll, J. E. International Environmental Diplomacy, the man-

agement and resolution of transfrontier environmental problems,

Cambridge, Cambridge University Press, 1988

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四八


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四四


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四二
