International courts and tribunals

The settlement of international environmental disputes before international courts and tribunals is characterised as scattered and fragmented. It relies on the evolution of the system and the competence allocated to each international body. Generally, judicial and non-judicial mechanisms are used as a last resort when other diplomatic and non-judicial mechanisms fail to reach a solution to environmental disputes.

1

R.J. Lazarus, ‘Fairness in Environmental Law’ (1997) 27(3) Environmental Lan’., pp. 705-739, 711 and 713.

Not all international courts and tribunals have entertained jurisdiction in environmental disputes. After a long while, the International Court of Justice began to decide cases involving compliance with IEL. The ICJ, exercising its authority in the interpretation of the sources, has spelled out the features of compliance with IEL: namely, customary international law.[1]

The framework of the international environmental governance system is based on MEAs and a network of soft-law instruments. The role of international courts and tribunals (ICTs) is crucial in the IEL compliance system. More specifically, ICTs have so far increased the effectiveness of international environmental governance. Due to the lack of a specific International Environmental Court (IEC), the resolution of IEL disputes takes place before different bodies. The need for an IEC has been long discussed in IEL scholarship.

In the landscape of IEL compliance, judicial and arbitral proceedings constitute the traditionally predominant dispute-settlement mechanisms. Turning to the role that some ICTs have played in international environmental governance through the lenses of IEL compliance, the emphasis is on the International Court of Justice (ICJ) and the dispute-settlement mechanisms under the Law of the Sea Convention. The International Tribunal for the Law of the Sea (ITLOS) is particularly important for the protection of the marine environment and global environmental issues. Other uses of disputesettlement procedures outside of these forums can be found in the realm of the World Trade Organization (WTO). In the WTO framework, both the panels and the Appellate Body have decided various cases involving the protection of the environment, as has been extensively discussed in another chapter of this book.

Overall, the ICJ forum has only recently been used for the resolution of IEL disputes. The general competence of the ICJ covers those cases in which the application of IEL is at stake, relating to the implementation of treaty provisions or customary international law norms. The IEL framework applicable to the settlement of disputes before international law bodies comprises international and transnational law principles. Various principles of substantive and procedural character emanate from the Rio Declaration, such as the preventive and precautionary principles that guide the interpretation of IEL norms. The preventative and precautionary principles are particularly relevant to assessing due diligence on the part of actors involved in the environmental field and inform

the duty to carry out an environmental impact assessment (‘EIA’).[2] Principles are relied upon by the ICJ to ascertain obligations under I EL, as argued by the ICJ in Pulp Mills on the Uruguay River and the cases between Costa Rica and Nicaragua.

I EL cases before the ICJ include the application of some general customary rules, such as permanent sovereignty over natural resources, the principle of prevention of transboundary harm and the obligation to carry out EIAs in certain cases. Those who defend the precautionary principle as a customary rule circumscribe it as a fourth standard of this nature, placing the principle as a foundational rule of IEL, or a rule of interpretation of other norms or guidelines, by the which all States are bound, except persistent objector.30 No Court so far has ruled that the precautionary principle has the character of the customary rule of international law, but they have not wished to assert that it does not either. International courts may be receptive to the precautionary principle without having to determine whether it is a mandatory rule in international law.

However, a set of individual opinions can be identified that could crystallize into a majority opinion, which defends the customary nature of the principle. Some key concepts relating to the precautionary principle include its relationship to the environmental standard of proof; its role as a principle of interpretation of conventional norms; and its link with the duty of due diligence and, consequently, with the principle of prevention.

In this way, the precautionary principle has been addressed, especially in cases before the ICJ and the ITLOS. The issue has also been debated within the WTO Dispute Settlement System in food security.[3] However, both the Appellate Body and a Panel have noted that ‘[s]ince the legal status of the precautionary principle remains unsettled [...], we consider that prudence suggests that we not attempt to resolve this complex issue, particularly if it is not neces-

■ t S 4-

sary to do so .

Regarding the ICJ, in the Gabcikovo - Nagymaros case, Hungary argued that the obligation not to cause harm in the territory of another State had evolved towards an crga omnes obligation to prevent harm, in accordance with the precautionary principle. Although in this case, the discussion was about the implications of the precautionary measures for the project, other very relevant considerations were made therein. In the Pulp Mills case, the question was whether jurisdiction over the interpretation and application of an international treaty included the obligations of the parties under the provisions of other international treaties and general international law as well as the role they would have in a particular case. In this regard, the ICJ argued that the precautionary principle could be a relevant element for the interpretation and application of the Uruguay River Statute without indicating the extent to which it would be applicable in the case as well as its justification.

Finally, in the case of the Pulp Mills on the River Uruguay, Judge Greenwood provided a different view regarding the application of the precautionary principle. In effect, he pointed out that the nature of environmental conflicts affects not the burden of proof but rather the standard of proof. He added that the application of a high standard of environmental testing may have an effect of rendering it almost impossible to meet the burden of proof of environmental damage in terms such that the actual effect attributable to principle 15 of the Rio Declaration is to lower the standard of proof for whoever has to prove the risk or environmental damage.

Except in the case of the ICJ - which is a Court of general jurisdiction[4] - the absence of an international tribunal linked to environmental treaties obliges a court to address conflicts of this nature from the point of view of the treaty to be interpreted and applied by the respective Court. For example, in the cases of the ITLOS, environmental conflicts must be formulated from the perspective of the United Nations Convention on the Law of the Sea (hereinafter ‘UNCLOS’), whereas in the case of the WTO Dispute Settlement Mechanism, the notion of‘covered agreements’ provided in the Dispute Settlement Understanding applies. Also, it must be added that there are few international environmental treaties that provide resources for jurisdictional means of dispute settlement.

Thus, invocation of the precautionary principle has been made in certain cases depending on the treaty - when it is part of the framework of jurisdiction of the court - or as a customary rule of general international law, when its application is intended to justify beyond the treaty or when an attempt is made to interpret the provision of a treaty taking into account ‘any relevant rule of international law applicable between the parties’.

Interstate environmental disputes originated in non-compliance with IEL may also be settled by resorting to arbitration. Some environmental disputes fall within the competence of international arbitration courts, such as the Permanent Court of Arbitration (PCA), which has dealt with legal disputes that have arisen under a variety of treaties, some of them of a multilateral nature, such as the 1992 OSPAR Convention, the 1982 UN Convention on the Law of the Sea, the 1960 Indus Waters Treaty and the 1976 Rhine Chlorides Convention. Other interstate environmental disputes brought before the PCA have arisen under bilateral treaties and ad-hoc arbitration agreements. In other draft agreements, resorting to the PCA is included among dispute settlement options, such as in the Draft International Covenant on Environment and Development. It is worth noting that this is a model agreement developed by NGOs to facilitate treaty negotiations in the environmental sector. In those cases administered by the PCA, it acts as the appointing authority and the forum for the arbitration of disputes arising from a number of environmental treaties.

A good example of this can be found in the Indus Water Kishenganga case {Pakistan v. India) of the Permanent Court of Arbitration, relating to a project of a hydroelectric plant on the Kishenganga/Neelum River. Pakistan argued that, among other obligations, India should apply a precautionary approach to its

activities on the containment dam.[5] India’s response was twofold: (1) to discuss its character as a customary rule because a number of important countries had strongly discussed this customary nature and (2) because it is not applicable to the case due to its different possible meanings.

The arbitrators did not pronounced in the partial award or in the final award on this issue. However, they noted that

the Court does not consider it appropriate, and certainly not necessary, for it to adopt a precautionary approach and assumes the role of policymaker in determining the balance between acceptable environmental change and other priorities, or to permit environmental considerations to override the balance of other rights and obligations expressly identified in the Treaty.

Thus, the State in which the project or activity is carried out has a wide margin of appreciation in relation to the application of the precautionary principle. An additional question to be considered is whether the protection of the right to live in a healthy environment can lead to the obligation of the State to act under the precautionary principle in the face of a project or activity in which there is uncertainty of serious or irreversible damage to the environment, which at the same time affects this fundamental right.

In the context of non-compliance-related litigation in IEL, there is an emerging case law concerning the concept of due diligence echoed in the responsibility of the State and accountability of non-state actors vis-a-vis an obligation of conduct. In the case of environmental damage, State and non-state actions should be examined in order to prevent damage.

The concept of due diligence takes into consideration the idea that, jointly with the powers in its territory, international actors possess a corresponding obligation to protect other actors by adopting all appropriate measures and prevent environmental damage. In terms of States, this means that they have the obligation to safeguard the security of other States as well as the people under its jurisdiction. The content of the obligation to act with due diligence has been used in different fields, ranging from International Human Rights Law (IHRL) to Law of the Sea and IEL. In the field of IEL, the obligation of due diligence

has a specific meaning, and it implies preventing and progressively achieving the protection of the environment on the international level.[6] It also corresponds to the obligation to take measures in line with the duty of due diligence to prevent environmental damage.

In order to comply with the duty of due diligence from the IEL perspective, following the jurisprudence of the ITLOS on responsibilities of the State sponsoring the prospecting or exploration of the seabed beyond its jurisdiction, it can be argued that the duty of due diligence also involves the direct obligation to conduct an EIA in certain cases - reflecting the preventive principle - as well as adopting a precautionary approach when deciding on operating authorizations for specific projects, works or activities.

In addition, and following the reasoning of the ICJ in the Pulp Mills case, the preventive principle has its origins in the duty of due diligence. Moreover, the preventive dimension of environmental protection has increasingly been understood as a duty of due diligence, regardless of whether the activities are capable of causing transboundary harm or are purely domestic activities. Further, it added that, in order to comply with the obligation of due diligence to prevent transboundary environmental damage, a State must determine if there is a significant risk of transboundary harm, which may trigger the requirement to conduct an EIA, prior to carrying out an activity that has the potential to adversely affect the environment of another State.

States must ensure that activities carried out within its jurisdiction and under its control do not cause damage to the environment of other States, or areas outside the national jurisdiction (Principle No. 2 of the Rio Declaration), recognized by the ICJ as part of the corpus of international law relating to the environment. Upon this basis, environmental legislation has been developed, especially in the field of environmental management instruments, such as environmental impact assessments in the case of projects that are capable of having a significant impact on environment.

In the case of ITLOS, its jurisdiction is more restricted than that of the ICJ insofar as it is competent to hear disputes submitted to it under the UNCLOS or other agreements conferring jurisdiction.[7] In turn, in order to settle the disputes, it must resort to UNCLOS ‘and to the other norms of international law that are not incompatible with it’. Thus, ITLOS has been requested on some occasions to order preventive measures invoking the precautionary principle. ITLOS has referred to the precautionary principle when it has been requested to provide advisory opinions. In those cases, the analysis of the precautionary principle was based on texts expressed in specific agreements.

In the case of provisional measures, the first case concerned the conservation of Southern Bluefish Tuna, filed by Australia and New Zealand. In this case, the Court, was asked to order the Parties to act consistently with the precautionary principle in fishing for bluefish tuna while the substance of the matter was settled. The second was in the MOX Plantease, in which Ireland requested the Tribunal, inter alia, to suspend the authorization of the MOX Plant, arguing that the United Kingdom must prove that discharges and other consequences of the operation of the MOX Plant would not cause damage to the environment, based on the precautionary principle. From a procedural point of view -according to the Irish argument - the precautionary principle can inform the assessment of the urgency of the provisional measures to be taken in connection with the operation of the MOX Plant. Finally, in the case of the Strait of Johor, Malaysia argued that Singapore had violated several rules of UNCLOS, in addition to the precautionary principle, ‘which under international law must be a direct party in the application and implementation of those obligations’.

Consequently, one of the issues to be determined by ITLOS was to what extent the precautionary principle informs the sense of urgency that must exist to justify the imposition of provisional measures under the rules of the UNCLOS. In this regard, in Southern Bluefish Tuna, ITLOS argued that the parties should ‘act with “prudence and caution” to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna’. It also stated that there was no scientific certainty as to the measures to be taken for the conservation of that species, nor was there any agreement on the effect of the

conservation measures.[8] Moreover, although the Court could not make a conclusive assessment of the evidence submitted, it suggested that the provisional measures should be adopted as a matter of urgency to preserve the rights of the parties and avoid further deterioration of the bluefin tuna stock. In this sense, although ITLOS avoided using the words ‘principle’ or ‘approach’, the reference to the lack of scientific certainty as a main element of the decision makes it possible to point out that this was a case in which ITLOS came close to applying that principle, as has been recognized in several opinions in that case as well as in the MOX Plant case and in the Advisory Opinion on Activities in the Area, as discussed below.

In the MOX Plant case, ITLOS reiterated that ‘prudence and caution’ require the parties to cooperate by exchanging information regarding the risks and effects of the operation of the MOX Plant, developing mechanisms for risk management. In the case of the Strait of Johor, ITLOS reiterated that ‘prudence and caution’ require Malaysia and Singapore to establish mechanisms to exchange information, assess the risks and effects of land reclamation, and develop mechanisms for risk management. It can be argued, therefore, that the requirement of urgency for provisional measures is implicit when it is held that the protection of the rights of the parties or the marine environment is needed by the precautionary principle/approach.

Although in the first two cases, Australia, New Zealand and Ireland, respectively, have argued that the precautionary principle is a customary rule of general international law, ITLOS has been extremely cautious in its analysis. However, the recognition of the duty to cooperate in relation to the marine environment in the MOX Plant and Strait of Johor cases is closely connected with the precau-

• i 90

tionary principle.

In the Advisory Opinion on the Activities in the Area, ITLOS analysed the duty of due diligence, identifying certain direct obligations, such as that (1) to assist the Authority in the control that must be exercised over activities in the area; (2) to apply a precautionary approach; (3) to apply the best environmental

Non-compliance 171 practices; (4) to adopt measures in order to ensure the adoption of guarantees in the event of an emergency order by the Authority, aimed at the protection of the marine environment; (5) to ensure the availability of resources to compensate for damages caused by pollution, and (6) to develop an environmental impact 91 assessment.

In the case of the precautionary principle, both the regulation of polymetallic nodules of sulphides - relevant to the analysis of the case - contain specific provisions concerning the application of the precautionary principle in terms of Principle 15 of the Rio Declaration so that this provision becomes binding on the sponsoring States of activities in the Area in terms such that the implementation of the precautionary approach in the way it is defined in those regulations is one of its obligations.[9] However, ITLOS addressed two outstanding issues from the previous finding. The first is that the regulations on sulphides and polymetallic nodules are limited to the processes of prospecting and exploration but not exploitation. In this way, the question of whether there is an obligation to implement the precautionary principle in the latter aspect remains open. The second issue lies in the fact that Principle 15 of the Rio Declaration provides for the precautionary approach ‘in line with the capacities’ of States, thereby introducing differences in their application according to the degree of development.

In response to these questions, ITLOS recognized that the precautionary principle is an integral part of the due diligence of the sponsoring States and therefore applies even outside the scope of the regulations for sulphides and polymetallic nodules. Also, it is applied in those cases where the scientific evidence concerning the scope and negative impacts of the activity in question is insufficient, but there are plausible indications of potential risks. The Court added that the precautionary approach had been incorporated into a growing number of treaties and other instruments under the terms of Principle 15 of the Rio Declaration and therefore believed that it had begun a trend towards making this approach a customary rule of international law.

Another dimension of the precautionary principle lies in its role as an element of normative interpretation. In general, it is not complex to explain precaution as a general principle of law which may not necessarily be created to be a legal

rule but may have a relevant influence on the interpretation, application and development of other rules of law in the same way as other environmental principles, such as sustainable development.[10] In this regard, and in accordance with international jurisprudence, the precautionary principle can serve as an clement of interpretation of other rules of the legal system, both at the level of treaties and at the level of internal rules. Thus, in the Case of the Pulp Millson the River Uruguay, the ICJ pointed out that the precautionary principle may serve to interpret the Statute of 1975.

In general, the decision-making process on the precautionary principle makes it possible to identify a set of measures, which in some cases have to do with administrative decisions and in others can be applied by judges in environmental disputes. Thus, these measures usually manifest: (1) a possible obligation for policymakers to assume the worst of scenarios when evaluating the measures to be adopted for the development of a project or activity, (2) require such projects to adopt the best available technologies and measures, (3) the obligation for anyone intending to develop an economic activity to prove that such activity will not result in environmental damage or (4) prohibit any activity or project.

As can be seen, alternatives 1 and 2 are typically policy-kind decisions, often covered by the principle of institutional balance at the domestic level or by the doctrine of margin of appreciation in international law. However, measures 3 and 4 may be adopted by judicial decision.

In sum, from the standpoint of international dispute settlement, a number of non-compliance cases relating to IEL have arisen before the ITLOS, the Permanent Court of Arbitration and the ICJ. An important aspect to be highlighted concerns separate opinions which feature nuances concerning compliance. To illustrate in the ITLOS, Judge Rüdiger Wolfrum acknowledged that the precautionary principle has the effect of changing the burden of proof. Thus, it was pointed out that, in the event that there is an interest in doing or continuing an activity, one must prove that said activity is not going to result in damage. In the same vein, Judge Gavan Griffith referred to the obligations of the OSPAR Convention in his dissenting opinion referring to the arbitral award made by the Permanent Court of Arbitration.

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (ITLOS)

Advisory Opinion of 1 February 2011

Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area

The content of “due diligence” obligations may not easily be described in precise terms. Among the factors that make such a description difficult is the fact that “due diligence” is a variable concept. It may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge. It may also change in relation to the risks involved in the activity.

Source: https://www.itlos.org/cases/list-of-cases/case-no-17/

6 Human rights courts and regional mechanisms

It has long been discussed whether regional human rights courts have the specific competence to adjudicate about environmental issues. Human rights courts and bodies have dealt with environmental claims in the framework of IHRL. Clearly, the question that arises here is whether IEL compliance can be dealt with by human rights courts and regional mechanisms. While they may offer the possibility to safeguard environmental access rights, the extent to which non-compliance with IEL is addressed is always related to the protection of human rights. Moreover, many of the available human rights instruments did not initially include environmental protection within their scope. After the first cases, matters and protection developed incrementally.

In the Strasbourg system, the wording of the European Convention does not explicitly address the protection of environmental rights. Nonetheless, the European Court of Human Rights (ECtHR) case law has greatly contributed to the ‘greening’ of human rights protection based on the interpretation of Articles 2, 8 and 10 of the European Convention on Human Rights (ECHR). In turn, the American Convention on Human Rights (ACHR) mandates that States respect the rights and freedoms enshrined therein, incorporating only in Article 26 the commitment to guaranteeing the progressive development of economic, social and cultural rights.

In Europe, leading cases have heralded a new era in the protection of the environment, opening another channel to deal with non-compliance with environmental law. Amongst the cases that have arisen under Article 8 of the ECHR, the first relevant to environmental protection was Lopez Ostra v Spain, in which the court upheld a complaint against the government’s failure to deal with pollution originating in smells, noise and fumes from a waste-treatment plant located in the vicinity of the applicant’s home. The environmental damage interfered with the applicant’s private life in violation of Article 8 as the authorities had not struck a fair balance between the interests at stake. In Guerra and others v Italy the focus was placed on the right to information concerning a chemical factory producing fertiliser which has caused several accidents and poisoning in the city. The Court took the view that there had been a violation of Article 8 because of the delay in providing information to the applicants which was necessary to perform a risk assessment. Other cases, like Budayeva and Others v Russia, referring to a mudslide where people died, unveiled the interconnections between lack of compliance with environmental law and violation of human rights in a causal relation. In its conclusions, the Court determined that the Russian Federation had violated Article 2 by failing to implement land-planning and emergency relief policies in a hazardous area where there was a foreseeable risk to lives. Later cases have further delimited the scope of the protection granted under the ECHR. In Hatton and Others v United Kingdom (2003) and Kyrtatos v Greece (2003), the Court emphasised the necessary link between human rights and environmental damage. Kyrtatos v Greece concerned the challenging of a government’s decision to demolish buildings that supposedly affected protected species. The First Section of the ECtHR determined that no violation of Article 8 had been proven as the applicants were not able to demonstrate that the damage to the birds and other protected species directly infringed their private or family life rights.

Turning now to the ACHR, similarly, its text does not contain any explicit references to sustainable development or environmental protection. However, there is an intrinsic relationship between Articles 1.1, 4.1 and 5.1, and the right to a healthy environment. The Protocol to the Convention on Economic, Social and Cultural Rights (also known as the ‘Protocol of San Salvador’) of 17 November 1988 includes the so-called rights of solidarity - the right to health, food and a healthy environment, among others." It also requires States to take into account the progressive nature of such rights.

In view of this, both human rights bodies of the Inter-American System, the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights, have begun to recognize the protection of new generations of human rights, including a healthy and ecologically balanced environment in parallel with the recognition and protection of the rights of indigenous peoples.[11]

In light of specific cases, the Commission and the Court have gradually taken on the protection of the right to a healthy environment. This evolution has been possible through a systematic and evolving interpretation of the norms making

up the legal framework, considering both individual and collective rights, in particular those of indigenous communities and peoples.

In Kawas Fernandez v. Honduras the Court indicated that the protection of the environment falls within the safeguard of human rights. In this case, it determined the violation of the freedom of association of a group of environmentalists aimed at protecting natural resources.[12] Moreover, the progressive protection of the human right to the environment in the ISHR has gained importance in the case of indigenous peoples. In this case, as well as in others decided by the Court, the responsibility of the State not to guarantee the right to indigenous property was established. Indeed in Kawas, the Court compared the universal, indivisible and interdependent character of human rights to the link between civil and political rights; economic; social and cultural rights; and solidarity rights, including the right to environment. In the case of the Indigenous Peoples of Mashco Piro, Yora and Amahuaca, the Commission granted provisional measures to guarantee their life and personal integrity, and to eradicate activities of illegal logging in their legally protected territory since they were exposed to risk of extinction.

Moreover, in a number of cases, both the Court and the Commission have issued measures aimed at protecting the environmental rights of indigenous communities or persons from NGOs dedicated to environmental protection and training and counselling indigenous and peasant communities that have been persecuted and threatened, as in Yatama v Nicaragua (2005), Marco Arana Mirtha Vásquez and others v Peru and Teodoro Cabrera Garcia and Rodolfo Montiel Flores v Mexico.

The obligation to carry out an EIA is also based on international human rights law, as referred to in Saramaka v. Suriname. In this decision, the Court reiterated that the State had an obligation to consult with the Saramaka people in accordance with their customs and traditions, guaranteeing their right to be effectively consulted on legislative, administrative or other measures as well as the obligation to carry out previous studies of social and environmental impact and any restriction on property rights, particularly development or investment plans that affect them. In particular, the Court required previous studies of social and environmental impact in order to obtain objective measures of impact on land and people, and knowledge about environmental and health risks.

INTER-AMERICAN COURT OF HUMAN RIGHTS

Advisory Opinion OC-23/17

... the Court found that, to respect and ensure the rights to life and personal integrity: a. States are obligated to prevent significant environmental damages within and outside their territory, b. To comply with this obligation of prevention, States must regulate, supervise and monitor the activities under their jurisdiction that could cause significant damage to the environment; carry out environmental impact assessments when there is a risk of significant damage to the environment; prepare contingency plans in order to establish safety measures and procedures to minimize the possibility of major environmental disasters, and mitigate any significant environmental damage that could have occurred, even when this happened despite preventive actions by the State, c. States must act in keeping with the precautionary principle to protect the rights to life and to personal integrity in the event of possible serious and irreversible damage to the environment, even in the absence of scientific certainty, d. States are obligated to cooperate, in good faith, to protect against environmental damage, e. To comply with the obligation of cooperation, when States become aware that an activity planned under their jurisdiction could generate a risk of significant transboundary damage and in cases of environmental emergencies, they must notify other States that could be affected, as well as consult and negotiate in good faith with the States potentially affected by significant transboundary damage, f. States have the obligation to ensure the right of access to information recognized in Article 13 of the American Convention in relation to possible damage to the environment, g. States have the obligation to ensure the right to public participation of the persons subject to their jurisdiction, as established in Article 23( l)(a) of the Convention, in the decision-making process and in the issuing of policies that may affect the environment, h. States have the obligation to ensure access to justice, regarding the state obligations for the protection of the environment previously indicated in this Opinion.

Source: Advisory Opinion (OC-23/17) - Inter-American Court of Human Rights. On 7 February 2018, available at https://www.

corteidh.or.cr/docs/opiniones/seriea_23_ing.pdf

INTER-AMERICAN COURT OF HUMAN RIGHTS

Comunidad Mayagna (Sumo) Awas Tingni v. Nicaragua

  • 146. The terms of an international human rights treaty have an autonomous meaning, so that they cannot be equated with the meaning attributed to them in domestic law. In addition, such human rights treaties are living instruments whose interpretation has to be adapted to the evolution of the times, and in particular to the current living conditions.
  • 147. In turn, Article 29.b of the Convention provides that no provision may be interpreted as ‘limiting the enjoyment and exercise of any right or freedom which may be recognized under the laws of any of the State parties or in accordance with another convention to which one of these States is a party’.
  • 148. Through an evolutionary interpretation of the international instruments for the protection of human rights, taking into account the applicable rules of interpretation and, in accordance with Article 29.b of the Convention -which prohibits a restrictive interpretation of rights-, this Court considers that Article 21 of the Convention protects the right to property in a sense that includes, among others, the rights of members of indigenous communities within the framework of communal property, which is also recognized in the Political Constitution of Nicaragua.

Source: IACHR, Comunidad Mayagua (Sumo) Awas Tingni v. Nicaragua, Decision of August 31st, 2001 (Free translation). annulment; actions for failure to act, appeals, reviews). As regards the interpretation and application of Community environmental law, the Court’s rulings mainly come from actions for failure to fulfil obligations (Articles 226-228 of the EC Treaty) or from references for preliminary rulings (Article 234 of the EC Treaty).

Judgment of the Court of 2 August 1993

Commission of the European Communities v Kingdom of Spain

Conservation of wild birds - Special protection areas

Case C-355/90

  • 1 Articles 3 and 4 of Directive 79/409 on the conservation of wild birds require Member States to preserve, maintain and re-establish the habitats of the said birds as such, because of their ecological value. The obligations on Member States under those articles exist even before any reduction is observed in the number of birds or any risk of a protected species becoming extinct has materialized.
  • 2 In implementing Directive 79/409 on the conservation of wild birds, Member States are not authorized to invoke, at their option, grounds of derogation based on taking other interests into account. With respect, more specifically, to the obligation to take special conservation measures for certain species under Article 4 of the directive, such grounds must, in order to be acceptable, correspond to a general interest which is superior to the general interest represented by the ecological objective of the directive. In particular, the interests referred to in Article 2 of the directive, namely economic and recreational requirements, do not enter into consideration, as that provision does not constitute an autonomous derogation from the general system of protection established by the directive.
  • 3 In choosing the territories which are most suitable for classification as special protection areas pursuant to Article 4(1) of Directive 79/409 on the conservation of wild birds, Member States have a certain discretion which is limited by the fact that the classification of those areas is subject to certain ornithological criteria determined by the directive, such as the presence of birds listed in Annex I to the directive, on the one hand, and the designation of a habitat as a wetland area, on the other.
  • 4 However, Member States do not have the same discretion under Article 4(4) of the directive to modify or reduce the extent of such areas.

Source: https://eur-lex.europa.eu/legal-content/EN/ ALL/?uri=CELEX%3A61990CJ0355

EUROPEAN COURT OF HUMAN RIGHTS

Kyrtatos v Greece (2003)

The applicants challenged the Government’s failure to demolish buildings where the permits to build on a swamp had been ruled unlawful by the Greek Court. The First Section held that there was no violation of Article 8, as the applicants had not shown how damage to the birds and other protected species directly affected their private or family life rights.

Para 52: “Neither Art. 8 nor any of the other Articles of the Convention are specifically designed to provide general protection of the environment as such; to that effect, 6 other international instruments and domestic legislation are more pertinent in dealing with this particular aspect.”

Source: https://hudoc.echr.coe.int/fre#{%22itemid%22: [%22001-61099%22]| 40 EHRR 16

EUROPEAN COURT OF HUMAN RIGHTS

Grand Chamber

Hatton and Others v United Kingdom (2003)

  • 4. The Court’s assessment
  • 96. Article 8 protects the individual’s right to respect for his or her private and family life, home and correspondence. There is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8. Thus, in Powell and Rayner v. the United Kingdom, (judgment of 21 February 1990, Series A no. 172, § 40), where the applicants had complained about disturbance from daytime aircraft noise, the Court held that Article 8 was relevant, since “the quality of [each] applicant’s private life and the scope for enjoying the amenities of his home [had] been adversely affected by the noise generated by aircraft using Heathrow Airport”. Similarly, in the López Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, § 51, the Court held that Article 8 could include a right to protection from severe environmental pollution, since such a problem might “affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health”. In Guerra v. Italy (judgment of 19 February 1998, Reports of Judgments and Decisions 1998-1), which, like López Ostra, concerned environmental pollution, the Court observed that “[the] direct effect of the toxic emissions on the applicants’ right to respect for their private and family life means that Article 8 is applicable” (§ 57).
  • 97. At the same time, the Court re-iterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, for example, the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, § 48). In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy maker should be given special weight (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 32, § 46, where the Court found it natural that the margin of appreciation “available to the legislature in implementing social and economic policies should be a wide one”).
  • 98. Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure properly to regulate private industry. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see the above-mentioned Powell and Rayner judgment, § 41 and the above-mentioned López Ostra judgment, § 51).
  • 99. The Court considers that in a case such as the present, involving State decisions affecting environmental issues, there are two aspects to the inquiry that may be carried out by the Court. First, the Court may assess the substantive merits of the Government’s decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual.
  • 100. In relation to the substantive aspect, the Court has held that the State must be allowed a wide margin of appreciation. In Powell and Rayner, for example, it asserted that it was “certainly not for the Commission or the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this difficult social and technical sphere”, namely the regulation of excessive aircraft noise and the means of redress to be provided to the individual within the domestic legal system. The Court continued that “this is an area where the Contracting States are to be recognised as enjoying a wide margin of appreciation” (op. cit., § 44).
  • 101. In other cases involving environmental issues, for example planning cases, the Court has also held that the State must be allowed a wide margin of appreciation. The Court explained the reasons for this approach in Buckley v. the United Kingdom, where the applicant complained that she had been denied planning permission to install a residential caravan on land that she owned (judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, §§ 74-77):

“As is well established in the Court’s case-law, it is for the national authorities to make the initial assessment of the ‘necessity’ for an interference, as regards both the legislative framework and the particular measure of implementation.... Although a margin of appreciation is thereby left to the national authorities, their decision remains subject to review by the Court for conformity with the requirements of the Convention. The scope of this margin of appreciation is not identical in each case but will vary according to the context.... Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned.

The Court has already had occasion to note that town and country planning schemes involve the exercise of discretionary judgment in the implementation of policies adopted in the interest of the community.... It is not for the Court to substitute its own view of what would be the best policy in the planning sphere or the most appropriate individual measure in planning cases.... By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions. In so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation.

The Court cannot ignore, however, that in the instant case the interests of the community are to be balanced against the applicant’s right to respect for her ‘home’, a right which is pertinent to her and her children’s personal security and well-being.... The importance of that right for the applicant and her family must also be taken into account in determining the scope of the margin of appreciation allowed to the respondent State. Whenever discretion capable of interfering with the enjoyment of a Convention right such as the one in issue in the present case is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. Indeed, it is settled case-law that, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8....

The Court’s task is to determine, on the basis of the above principles, whether the reasons relied on to justify the interference in question are relevant and sufficient under Article 8 § 2.”

  • 102. The Court has recognised that, where Government policy in the form of criminal laws interferes with a particularly intimate aspect of an individual’s private life, the margin of appreciation left to the Government will be reduced in scope (Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, p. 21, § 52).
  • 103. The Court is thus faced with conflicting views as to the margin of appreciation to be applied: on the one hand, the Government claim to a wide margin on the ground that the case concerns matters of general policy, and, on the other hand, the applicants’ claim that where the ability to sleep is affected, the margin is narrow because of the “intimate” nature of the right protected. This conflict of views on the margin of appreciation can be reconciled only by reference to the context of a particular case.

Source: 34 EHRR 1, https://hudoc.echr.coe.int/fre#{%22ite mid%22:[%22001-61188%22]}

EUROPEAN UNION

Order of the General Court (Second Chamber)

  • 8 May 2019
  • (Action for annulment and damages — Environment — Greenhouse gas emissions — 2030 climate and energy package — Directive (EU) 2018/410 — Regulation (EU) 2018/842 — Regulation (EU)
  • 2018/841 — Lack of individual concern — Inadmissibility)

In Case T-330/18,

Armando Carvalho, residing in Santa Comba Dao (Portugal), and the other applicants whose names are set out in the annex, (1) represented by G. Winter, Professor, R. Verheyen, lawyer, and H. Leith, Barrister,

applicants,

v

European Parliament, represented by L. Darie and N Tamas, acting as Agents, and

Council of the European Union, represented by M. Moore and M. Simm, acting as Agents,

defendants,

APPLICATION under Article 263 TFEU seeking, first, annulment in part of Directive (EU) 2018/410 of the European Parliament and of the Council of 14 March 2018 amending Directive 2003/87/EC to enhance cost-effective emission reductions and low-carbon investments, and Decision (EU) 2015/1814 (OJ 2018 L 76, p. 3), in particular Article 1 thereof, Regulation (EU) 2018/842 of the European Parliament and of the Council of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/2013 (OJ 2018 L 156, p. 26), in particular Article 4(2) thereof and Annex I thereto, and Regulation (EU) 2018/841 of the European Parliament and of the Council of 30 May 2018 on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework, and amending Regulation (EU) No 525/2013 and Decision No 529/2013/EU (OJ 2018 L 156, p. 1), in particular Article 4 thereof, and, second, compensation under Articles 268 and 340 TFEU in the form of an injunction for the damage that the applicants claim to have suffered.

Source: http://curia.europa.eu/juris/document/document.jsf?

text=&docid=214164&pageIndex=0&doclang=EN& mode=lst&dir=&occ=first&part=l&cid=4417306

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  • [1] Jean d’Aspremont, ‘The International Court of Justice as the Master of the Sources’ (February 5, 2020). Carlos Esposito and Kate Parlett (eds), The Cambridge Companion to the International Court of Justice (Cambridge University Press 2021), available at SSRN: https://ssrn.com/ abstract=3532329 or http://dx.doi.org/10.2139/ssrn.3532329 accessed 1 April 2020. 2 Monica Feria-Tinta and Simon Milnes, ‘The Rise of Environmental Law in International Dispute Resolutions’ (2018) Yearbook of International Environmental Law, pp. 1-18. 3 Also, we can identify principles of cooperation (№s 7, 9, 12, 14 y 27); responsibility for environmental harm (№ 13); common but differentiated responsibilities (№ 7); polluter pays (№ 16); and certain human rights, such as healthy and productive life in harmony with nature (№ 1).
  • [2] Other procedural rights contained in the Rio Declaration are notification in case of emergency (№ 18); notification and consultation in case of risk of environmental transboundary effects (№ 19); peaceful settlement of disputes (№ 26); and the environmental democracy, which comprises rights of participation, access to environmental information and access to environmental justice (№ 10). 2 International Court of Justice, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010 https://www.icj-cij.org/files/case-related/135/135-20100420-JUD-01-00-EN.pdf 1 April 2020 accessed 1 April 2020. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) Proceedings joined with Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) on 17 April 2013, available at https://www.icj-cij.org/en/case/150 accessed 1 April 2020. 3 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, par. 203 y ss. 4 See, among others, O. Mcintyre and T. Mosedale, ‘The Precautionary Principle as a Norm of Customary International Law’ (1997) 9(2) Journal of Environmental Law, p. 221; J. Cameron and J. Abouchar, (1991): ‘The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of Global Environment’ (1991) 14(1) Boston College International and Comparative Law Review, p. 19 y ss. 5 See Ole Pedersen, ‘From Abundance to Indeterminacy: The Precautionary Principle and Its Two Camps of Custom’ (2014) 3(2) Transnational Environmental Law-, p. 323. 6 Caroline Foster, ‘Adjudication, Arbitration and the Turn to Public Law ‘Standards of Review’: Putting the Precautionary Principle in the Crucible’ (2012) 3(3) Journal of International Dispute Settlement, p. 534. 7 Philippe Sands, (2002), ‘Los Tribunales Internacionales y el Principio de Precaución’, in AA.VV. La precaución, de Rio a Johannesburgo. Actas de la Mesa Redonda de la Geneva Environment Network (Geneva Environment Network, 2002), p. 36.
  • [3] See, among others, Caroline Foster, ‘Precaution, Scientific Development and Scientific Uncertainty under the WTO Agreement on Sanitary and Phytosanitary Measures’ (2009) 18(1) Review of European, Comparative & International Environmental Law, p. 50. 2 See European Communities - Measures Concerning Meat and Meat Products (Hormones) (WT/ DS26/AB/Ry WT/DS48/AB/R), Report of the Appellate Body of January 16th, 1998; European Communities - Measures Affecting the Approval and Marketing of Biotech Products (WT/ DS291/R, WT/DS292/R у WT/DS293/R), report of the panel of September 29th, 2006, paragraph 7.89. 3 ICJ, Gabcikovo/Nagymaros Project (Hungary v Slovakia), Decision of 25th September 1997, para. 97. 4 ICJ, Gabcikovo/Nagymaros Project (Hungary v Slovakia), Decision of 25th September 1997, para. 113. 5 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, Separate Opinion of Judge Greenwood, para. 26. 6 Birnie, Boyle and Redgwell (n 9) at 154 and 157.
  • [4] As well as the case of arbitration Courts in environmental cases. 2 Vienna Convention on the Law of Treaties, Article 31.3.c). 3 Permanent Court of Arbitration, available at https://pca-cpa.org/en/services/arbitration-services/environmental-dispute-resolution/ accessed 1 April 2020. 4 IUCN, Draft International Covenant on Environment and Development. Fifth Edition: Updated Text, 2017, available at https://sustainabledevelopment.un.org/index.php?page=view& type=400&nr=2443 accessed 1 April 2020. 5 In possible contradiction of a bilateral agreement signed in 1960, concerning the use of the waters of the Indus System of Rivers, within which is situated the Kisbenganija/Neelum.
  • [5] Permanent Court of Arbitration, The Indus Waters Kishenganga Arbitration (Pakistan v. India), Partial Award of 18 February 2013, para. 223. 2 Ibid., para. 227. 3 Ibid., para. 112. 4 IACHR, Velasquez Rodríguez p. Honduras, decision of July 29th, 1988, para. 172, Godinez Cruz v. Honduras, decision of January 20th, 1989, para. 182, among others. 5 ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), February 1st, 2011, para. 117. 6 In this sense, it can be seen in the contributions of the ILA Study Group on Due Diligence, especially the 2014 (Washington) and 2016 (Johannesburg) reports, both available at http:// www.ila-hq.org/en/study-groups/index.cfm/cid/1045 accessed 1 April 2020.
  • [6] Rumiana Yotova, ‘The Principles of Due Diligence and Prevention in International Environmental Law’ (2016) 75(3) The Cambridge Law Journal^ pp. 445-448. 2 Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), ICJ Reports 2015. These are the latest in a line of cases raising key principles of international environmental law before the ICJ, following Pulp Mills (2010), Aerial Herbicide Spraying (2013) and Whaling in the Antarctic (2014). 3 Ibid., para. 122. 4 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010. 5 Jorge E. Vinuales, ‘The Rio Declaration on Environment and Development. Preliminary Study’ (2015), in Jorge E. Vinuales (ed), The Rio Declaration on Environment and Development: A Commentary (Oxford University Press 2015), p. 23. 6 ICJ, Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica V. Nicaragua) Construction of a Road in Costa Rica along the San Juan River (Nicaragua V. Costa Rica). Decision of 16 December, 2015, para. 104. 7 ICJ, Legality of the Threat or Use of Nuclear Weapons^ Advisory Opinion of 8 July 1996, para. 29; Pulp Millson the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, para. 101.
  • [7] Article 21 of the Statute of ITLOS. 2 Article 293 UNCLOS. 3 ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of February 1st, 2011; ITLOS, Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion, 2 April 2015. 4 ITLOS, Southern Bluefish Tuna Cases, Provisional Measures, Order of 27 August 1999, paras. 31.3 and 32.3. 5 ITLOS, MOX Plant Case, Provisional Measures, Order of 3 December 2001, para. 71. 6 ITLOS, Case Concerning Land Reclamation by Singapore in and Around the Straits of Johor., Provisional Measures, Order of 8 October 2003, para. 74. 7 ITLOS, Southern Bluefish Tuna Cases, Provisional Measures, Order of 27 August 1999, para. 77.
  • [8] ITLOS, Southern Bluefish Tuna Cases* Provisional Measures, Order of 27 ¿ugust 1999, para. 79. 2 ITLOS, Southern Bluefish Tuna Casesy Provisional Measures, Order of 27 August 1999, para. 80. 3 ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), February 1st, 2011, para. 132. 4 ITLOS, MOX Plant Case* Provisional Measures, Order of 3 December 2001, paras. 82 to 84. 5 ITLOS, Case Concerning Land Reclamation by Singapore in and Around the Straits of Johor* Provisional Measures, Order of 8 October 2003, para. 99. 6 B. Kwiatkowska, ‘The Ireland p United Kingdom (Mox Plant) Case: Applying the Doctrine of Treaty Parallelism’ (2003) 18(1) The International Journal of Marine and Coastal Law* p. 40. 7 F. Orrego, ‘The International Tribunal of the Law of the Sea and Provisional Measures: Settled Issues and Pending Problems’ (2007) 22(3) The International Journal of Marine and Coastal Law* p. 458.
  • [9] ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), February 1st, 2011, paras. 121 and 122. 2 ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), February 1st, 2011, para. 127. 3 ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), February 1st, 2011, para. 131. 4 ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), February 1st, 2011, para. 135.
  • [10] A. Boyle, ‘The Environmental Jurisprudence of the International Tribunal of the Law of the Sea’ (2007) 22(3) The International Journal of Marine and Coastal Law, p. 375. 2 ICJ, Pulp Mills on the River Uruguay (Argentina p. Uruguay), Judgment, I.C.J. Reports 2010, para. 164. 3 ITLOS, MOX Plant Case, Provisional Measures, Order of 3 December 2001, Separate Opinion of Judge Wolfrum. 4 Permanent Court of Arbitration, Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v. United Kingdom), Final Award, 2 July 2003, Dissenting Opinion of /Gavan Griffith QC, para. 72.
  • [11] 2 Moreover, the Inter-American Commission of Human Rights extended the Rapporteurship on Economic, Social and Cultural Rights to environmental Rights, see https://www.oas.org/en/ iachr/desc/ accessed 1 April 2020.
  • [12] IACHR, Kawas Fernández p. Honduras, Decision of April 3, 2009. 2 Ibid. 3 IACHR, 22 March 2007. 4 In this case, the Court recognizes the right of political participation and the judicial protection of the members of indigenous and ethics communities of the Caribbean coast, organised in defense of the historical rights of the indigenous peoples and their territories, in order to establish and protect their cultural identity, customs and autonomous organization. 5 IACHR, 23 April 2007. These people were part of an organisation dedicated to the environment, technical and legal assistance, and were threatened by pro-mining people. 6 Petitioners were dedicated to the protection of environmental and human rights and were objects of assaults and violations of their associative rights. That was the reason why the Commission suited on June 24th, 2009. 7 IACHR, Pueblo Saramaka p. Surinam, Decision ofNovember 28th, 2007 and August 12th, 2008.
 
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