EMERGING ALTERNATE FORUMS FOR ENVIRONMENTAL ADJUDICATION

Environmental harm can be inflicted by State acts, Private acts, or acts committed outside the territory of a state. The transboundary nature of environmental harm was well demonstrated by the landmark case of Trail Smelter Arbitration – a precedent that continues to shape the narrative on Environmental Justice through judicial forums. The victim (a person or a group) must have access to effective judicial as well as alternate remedies at both national and international levels.

Environmental harm directly impacts human rights of the victim. Countries like Portugal, South Africa, Norway, Costa-Rica, France and India have successfully incorporated Environmental rights in their constitutions (either explicit or implied/derivative manner).

It is the State’s obligation to incorporate environmental rights in legal frameworks, especially for the protection of vulnerable communities such as indigenous tribes and children under the age of 16. However, providing a forum of justice which is accessible and adequate substantive redressal as well as remedies for violation is equally important to achieve the central objective.

Apart from the International Judicial and Quasi-Judicial Forums, many other international instruments have established forums that provide dispute resolution. These Regional and National forums have played a significant role in ensuring environmental justice and furthering environmental rights.

REGIONAL HUMAN RIGHTS COURTS:

The confluence of human rights and environmental rights cannot be ignored. Issues of environmental injuries are invariably issues of human rights, fundamentally related to Right to Life and Right to Health, and also Right of Self-determination.

The 1969″American Convention on Human Rights” is the foundational instrument for the “Inter-American Court of Human Rights (IACtHR) and the “Inter-American Commission on Human Rights” (IAComHR). Till date, 25 Latin American Countries have ratified the American Convention on Human Rights. However, it is not ratified by the USA. Any person or group of persons are legally allowed to bring proceedings before IAComHR, including NGOs as well. The State can be challenged, not just private parties. However, the jurisdiction of IACtHR is limited as only state parties and IAComHR may initiate “contentious proceedings”.  Hearings are generally open for public. The IACCHR has seen its maximum cases coming from the indigenous communities who suffered Human Rights injury from industrial and commercial activities on their land. The Court as well as the Commission held these encroachments to be in violation of the right to life under Article 4 and Article 21 that is Right to property. In 2005, the IAComHR saw its first-ever significant climate change case when the Inuit Circumpolar Conference filed a petition in IACHR. It directly implicated USA for GHG emissions that were causing climate change, resulting in violation of the Inuit community. However, IACHR rejected it, that too without reasons or merits.

Along with ACHR, the European Convention on Human Rights (ECHR) also provides for a right to a healthy environment. The European Court of Human Rights as well as the European Court of Justice has seen a growing number of environment cases. The foundational instrument is the European Convention on Human Rights and its protocols and 47 states have ratified it. Under the contentious cases subject-matter, cases can be brought by a state, person, NGO, or even a group of individuals. However, the litigant has to prove that he has suffered a “significant disadvantage”. Advisory opinions can be requested, but no questions can be asked that relate to the scope or content of the freedoms and rights under Section I (Arts. 1-18) and related protocols. Hearings are generally open for public. European Court of Justice has consistently maintained a comparatively favourable and strong pro-environment position. “Environmental Protection” is recognised as an “essential objective” of the European Commission. From 1985-1995, it heard almost 150 cases. The recent amendments in the treaty of Amsterdam specifically impose heavy fines on member states who transgress the dictate of the European Court of Justice. Greece was recently fined for its failure to take care of a waste dump that polluted a European village, Crete. In the case of Lopez-Ostra v. Spain, the ECHR, found air-pollution from a tannery waste-plant causing serious health problems to be violative of Article 8 Right to Respect for private land and family life. In Tatar v. Romania, a gold mine accident ended up affecting the State of Hungary, Montenegro, and Serbia. ECtHR made conspicuous mentions of Stockholm Declaration as well as Principle 14 of the Rio Declaration, pointing that it is the duty of states to ensure that “local industrial activities” don’t result in trans-boundary injuries.

Similarly, the African Charter on Human and People’s Rights (AfCHPR) allows adjudication by the African Commission on Human and People’s Rights (AfCOMHPR) as well as the African Court on Human and Peoples’ Rights (AfCtHPR). As of now, twenty-five African states recognise the jurisdiction of the court. The African Charter gives a “peoples right to a general satisfactory environment.” Hearings are generally open for public. In 2001, AfCtHPR delivered a landmark judgment related to Human Rights and Environmental Rights – The Ogoniland decision. Two NGOs brought charges (called communications under the Commission regime) against the State of Nigeria alleging that the Nigerian government allowed operations in oil production that resulted in contamination of the environment, severely affecting the health of Ogoni people, the local residents. The AfComHPR found the charges to be true and in violation of Right to Respect for Life and Integrity, Right to property, Right to Health, and Right to a General Satisfactory Environment of the African Charter, among other articles. The Commission concluded,

“an environment degraded by pollution and defaced by the destruction of all beauty and variety is as contrary to satisfactory living conditions and development as the breakdown of the fundamental ecologic equilibria is harmful to physical and moral health.”

In the Endorois decision, The Commission acknowledged and gave explicit recognition to the connection between Endorois people and the land they once lived on. This connection was read into the Endorois people’s human rights, including the right to freely practise culture, development, religion, dispose of the property as well as natural resources.

It is worth mentioning the sincere efforts of Costa Rican Supreme Court since 1995 in shaping substantive environmental protection jurisprudence. The honourable court extended the scope of constitutional provisions concerning environmental rights. The court broke the restrictions of primary protection and went on to include factors relating to tourism, economy, farming and other activities. Between 1989 and 2012, the court gave favourable judgments 42% of the time.

In addition to this, the court went on to derive the principle of “dubio pro natura“, which means that if there is a lack of certainty whether activities might cause serious and irreparable damage, the Govt. should refrain from the activities altogether.

North American Agreement on Environmental Cooperation:

Under the North American Free Trade Agreement, the “Commission for Environmental co-operation” (CEC) was set-up. Headquartered in Montreal, the CEC main objective is to ensure that its three-member states – Mexico, Canada and USA don’t commit any violation of their domestic environmental regulations. NAAEC has managed to convert domestic environmental issues into International and regional ones. The push for NAEEC mainly came from Canada and the USA who, being neighbours to Mexico, were concerned about the flawed implementation of its domestic environmental laws. NAAEC allows for the imposition of sanctions on the member states held guilty and also for a transparent intergovernmental system that allows civil society initiatives under Article 5-6.

According to the established procedure, a member state can request “consultation” with the persistently defaulting state. In case the consultations fail, then the matter is moved for mediation and post sixty days, it goes to a technical arbitration panel of experts. The arbitration panel establishes the violation and recommends solutions and recommendations. If the non-compliant State doesn’t follow the recommendations, then pecuniary sanctions may be imposed. If such fine is not paid, then the State has to face further sanctions in form of equivalent tariffs. Along with this, the private parties in the respective states can also file complaints that lead to an independent review and factual record of the alleged situation. The record, however, is only a persuasive remedy allowing for public scrutiny of the conduct. This mechanism, facilitating inter-governmental accountability of the member states, is termed as the “Information Court” (info-court). The procedure followed is similar to that of various International Courts but here, coerciveness is substituted with substantial soft-transparency and relative sanctions. However, civil society claimants must show that their demand has merit. Also, the members of the Commission are not independent and appointed by the NAAEC members themselves. The report can be publicized only if voted by the majority. The report so publicized contains no facts on the viability of the reported violations, but only facts of the case. The Report-publication method has had a deterrent effect to some extent with legislatures and companies taking corrective measures before the publication of reports.

Conclusion:

It is important to understand that International forums like ICJ, PCA, World Bank’s ICSID and WTO DSB operate under different obligations and objectives. In such a scenario, environmental justice has to be ensured through other forums. Such regional and national forums can together play a significant role in shaping environmental jurisprudence across the globe.

Part-II of this series will focus on Environmental governance and adjudication through Non-Compliance Redressal and Regional Legal Mechanisms that Ensure Environmental Rights

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Author: Arunika Mishra, Research Scholar, Panjab University, Chandigarh.