The Need for an International Court for the Environment in Light of the Recent Secretary-General’s Report on Gaps in International Environmental Law

By Anxhela Mile

Pursuant to United Nations General Assembly resolution 72/277[1] on a Global Pact for the Environment, UN Member States requested the Secretary-General submit a report that assesses technical gaps in international environmental law.[2]

International environmental law has contributed to many treaties that transcend national boundaries.  For example, the Montreal Protocol on Substances that Deplete the Ozone Layer is a global agreement that phased out ozone-depleting substances.[3] Without the ozone layer, life on earth would not exist.[4] However, according to INTERPOL, “…a total of 1198 multilateral environmental agreements, 1595 bilateral environmental agreements, and 250 other environmental agreements have been established since 1857 and this number is still growing.”[5] The system, therefore, can be extremely inefficient as there is an abundance of environmental resolutions.

The Secretary-General’s report is extremely critical in finding common principles throughout the resolutions and providing recommendations for how the international community should mitigate complex environmental challenges.  In his report, the Secretary-General made several findings including that, “…there is no single overarching normative framework” that sets out the rules of international environmental law.[6]  Additionally, the body of law is “fragmented” and implementation is challenging at the national and international law.”[7]

The report also emphasizes that common ground of environmental principles (prevention, precaution, polluter pays, environmental democracy, cooperation, right to a clean and healthy environment, etc.) is lacking in the environmental community.[8] Additionally, international environmental law is suffering because it lacks proper enforcement mechanisms.  Many countries do not have strong judicial systems due to a lack of finance, capacity-building, the need for compliance, insufficient law enforcement, a lack of political will, and inadequate engagement of stakeholders.[9]

Aligning with the report, a coalition of various stakeholders including environmentalists, lawyers, business officials and academics advocate for, “…an international rule of law that protects the global environment for present and future generations.”[10]  The coalition holds the position that, “…an international court is essential towards to address significant gaps in the current international environmental legal order.”[11]

An international court for the environment may be especially needed in light of climate change adaptation and mitigation. The recent Intergovernmental Panel on Climate Change (IPCC) issued a Summary for Policymakers report that assess scientific reports on climate change.  It found that, “Global warming is likely to reach 1.5°C between 2030 and 2052 if it continues to increase at the current rate (high confidence).”[12] While the Secretary-General’s report goes through the various international treaties addressing climate change established through the United Nations Framework Convention on Climate Change (UNFCC), the Paris Agreement, for example, is not binding.[13] Additionally, there are no liability and compensation mechanisms for climate change under the regime which can arguably be an important gap.[14]  According to the Secretary-General, a top-down approach, “…combined with an enforcement mechanism would have been a more direct and predictable way of staying below the threshold.”[15]

Overall, international environmental law brings together 193 countries to the negotiating table.  While there is an abundance of environmental resolutions, these resolutions lack the enforcement mechanism that domestic environmental law provides.  However, in light of challenging global issues such as climate change, the international court needs to investigate ways of providing an enforcement mechanism to ensure that nations comply with international obligations.

 

[1]G.A. Res. 72/27 (May 10 2018).

[2]G.A. Res. 73/419 (November 30, 2018).

[3]The Montreal Protocol on Substances That Deplete the Ozone Layer: Diplomacy in Action. U.S. Department of StateDiplomacy in Action, https://www.state.gov/e/oes/eqt/chemicalpollution/83007.html.

[4]Brian J. Gareau, Whatever Happened to Ozone Layer Politics?E-International Relations(Jan. 2013), https://www.e-ir.info/2013/01/29/whatever-happened-to-ozone-layer-politics/.

[5]Environmental Crime Resolutions, INTERPOL, 5 (April 7 2014), ENS/2014/RD/001/SVDB.

[6]G.A. Res. 73/419 at 1.

[7]Id. at 2.

[8]Id. ¶ 11-21.

[9]Id. at 2.

[10]ICE Coalition: Creating the International Court for the Environment, http://www.icecoalition.org/.

[11]Id.

[12]Summary for Policymakers of the Special Report on Global Warming of 1.5°C, IPCC Report, https://www.ipcc.ch/sr15/chapter/summary-for-policy-makers/ (last accessed March 9, 2019).

[13]G.A. Res. 73/419 ¶ 28.

[14]Id.

[15]Id.

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