Oleh: Stijn Cornelis van Huis
Global warming and environmental degradation are issues that recently have gained renewed attention, not the least because the issues have been taken up by the school students climate movement, with Greta Thurnberg as its most well-known representative. According to them the climate is in such a bad state that governments must act now.
How to start such a change of mindset on an international level? It is not that environmental issues have not been regulated at the international level. Since the first international environmental treaty was signed between Germany, Swiss and Austria in 1857 to regulate the flow of water from the Constance lake, more than 750 international multilateral environmental agreements have been signed. This includes the 2016 Paris Agreement on climate change, of which the USA is party, although perhaps not for long as President Trump has vowed that the USA will leave the Paris Agreement.
According to the Thurnbergs of today, the current international response is too slow and the current international environmental law framework too unresponsive to the climate emergency. Indeed, international environmental law mainly consists of commitments between states, and because of the sovereignty principle in international law, most agreements do not have much teeth. Transgressions of environmental law are difficult to enforce as it remains the responsibility of individual states to act on the commitment they have made.
Two recent developments in international environmental law have fed speculation and hopes among environmentalists that the international framework is changing. The first development concerns a judgment of the ICJ in the Costa Rica vs. Nicaragua case. The ICJ ruled in 2018 that in the context of an internationally wrongful act committed by a state “loss of ecological services” constitutes environmental damage that must be compensated by the responsible state. The second development involves the decision of the ICC to admit environmental crimes. The ICC issued a policy paper in 2016 in which it announced that it would prosecute environmental crimes if they are committed in the context of crimes regulated under the Rome Treaty. The 2016 ICC protocol was welcomed by environmentalist, as the ICC prosecutes individuals (but not legal entities such as corporations). Moreover, the ICC prosecutor may open a case based on reports by persons and civil society organizations, whereas the ICJ only adjudicates disputes between states, filed by states.
Some have read these developments as to mean that environmental protection has now become jus cogens under international law, meaning an absolute underogable right, and that compliance and enforcement of these norms are erga omne: an obligation to all. Indeed, the two developments set new standards for the adjudication of future environmental cases by the two main international tribunals: the International Court of Justice (ICJ) and the International Criminal Court (ICC). However, as I will explain below, these new standards are strict, as environmental crimes (unlike genocide) will not be treated as international crimes in their own sake: they either must be committed in the context of harm inflicted to another state (ICJ), or in the context of crimes against humanity.
The Costa Rica vs. Nicaragua case
The Costa Rica vs. Nicaragua case concerns a border dispute. Both Costa Rica and Nicaragua claimed that the other had intruded its territory and conducted activities that harmed the environment. In 2010 Costa Rica brought the case to ICJ against the Republic of Nicaragua for unlawful incursion, occupation and use of Costa Rican territory, including claims of serious damage to protected rainforests and wetlands. In 2011 Nicaragua responded with a counterclaim that Costa Rica had violated its sovereignty and had caused environmental harm, through road construction works in the border area. In 2013 the ICJ decide to join the two cases together.
In 2015 the ICJ decided in favour of Costa Rica and ruled that Nicaragua had committed an Internationally Wrongful Act. Nicaragua was ordered to pay reparations to Costa Rica for the inflicted harm. However, as the parties could not agree upon the compensation and the damages within the time period set by the court, the ICJ proceeded the compensation case based on principle of international law that a breach of an obligation gives rise to an obligation to make reparation in adequate form.
Costa Rica demanded compensation for loss of ecological goods and services, whereas Nicaragua only wanted to pay the replacement value of the environmental damage. Where “loss of ecological services and goods” refer to damage to the ecosystem as a whole, “replacement value” refers to repayment of costs for replanting trees that had been cut by Nicaragua in the framework of digging canals in the border region.
In 2018 the Court ruled that “damage to the environment, and the consequent impairment or loss of the ability of the environment to provide goods and services, is compensable under international law.” Thus, the lack of certainty as to how to monetize damage to the ecosystem and the ecological services it provides, did not preclude the ICJ from awarding compensation for the impairment or loss of such environmental services.
In establishing the compensation, the court took into account the improbability that the rich biological diversity prior to Nicaragua’s unlawful activities could be repaired in the near future. Among the damages recognized by the ICJ were reduced capacity of the ecosystem in gas regulation and air quality services. The latter is important to note as up to now customary international environmental law has mainly developed through judments concerning cross- border water flows.
The importance of the ICJ decision is threefold
- It is for the first time the ICJ established the amount of compensation to be paid in an international environmental law case.
- The ICJ recognized “loss of ecological services and goods” as environmental harm subject to compensation in the context of an internationally wrongful act.
- Especially important for Indonesia: among loss of ecological services and goods mentioned the ICJ mentioned the loss in capacity of the ecosystem to reduce gasses and preserve air quality.
Still, while recognizing the importance of this new development in international environmental law, it is unlikely that the judgment of the ICJ will impact international environmental legal practice in ways climate activists would like to see. It is unlikely that it will cause a large increase of international transboundary environmental cases brought before the ICJ on the basis of “loss of ecological services and goods”. Besides the political reason of maintaining international relations, there are several legal reasons for this:
First, the Costa Rica vs. Nicaragua case is not an international transboundary environmental case but much more a case about unlawful incursion of a state’s territory. The activities by Nicaragua that harmed Costa Rica’s environment took place on the territory of Costa Rica. In transboundary environmental cases it is much more difficult to attribute liability for environmental harm to a neighbouring state.
Second, a state is not required to prevent all significant transboundary harm, as the principle of “due diligence” applies: a state must take the normal standard of care, meaning that sufficient procedures must be in place to prevent environmental harm and these procedures must be implemented by the state (see ICJ 2010 Argentina vs. Uruguay). Thus, while the “do-no-harm principle” has been widely recognized as customary international environmental law, a state is in principle only liable for environmental harm as a result of its active disposition. When damage is inflicted by companies, liability will be attributed to a state only when it is proven that the state did not act diligently when carrying out its activities to prevent harm – which is difficult to do.
Finally, the ICJ underlined itself that the “ecosystem services approach” must not be taken as a new standard since “there is no prescribed method of valuation for the compensation of environmental damage under international law and that the Court would have to take into account the specific circumstances and characteristics of each case”.
The ICC and environmental crimes
In 2016 the ICC Prosecutor Fatou Bensouda announced in a policy paper that the ICC would assess crimes that result in “the destruction of the environment or of protected objects”. The ICC would give “particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”
From this statement it was unclear whether the ICC would prosecute environmental crimes in its own right or in its connection to other crimes. A short legal analysis makes it clear that this is not the case. The ICC has jurisdiction to prosecute individuals for “the most serious crimes of concern the international community as a whole” and a policy paper is no legal instrument that can introduce “serious environmental harm” as a new “most serious crime”. Hence, environmental crimes must be placed within the existing legal framework.
The four recognized “most serious crimes” in the Statute of Rome are genocide, crimes against humanity, war crimes, and the crime of aggression. Environmental harm must be prosecuted in the framework of one of these four crimes. “Crimes against humanity” seems the most fitting category to incorporate environmental harm. However, the definition of “crimes against humanity” makes such incorporation of environmental harm still very complicated. “Crimes against humanity” are defined as crimes “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” The environmental harm, therefore, must be part of a larger attack and this attack must be systematic and directed at a specific group. In other words, the harm experienced by a group must be the intention of the act – it does not suffice that environmental harm is a consequence or by-product of another, for instance, economic motivation. To fit the Rome Statute framework the environmental “attack”, must be directed at a specific population and must have the objective to “exterminate” or “forcefully transfer” this population.
The ICJ and ICC cases demonstrate how legal interpretations and new policies within an existing legal framework can result in legal change, but that such change will inevitably be slow. The ICJ may now hold countries accountable for “loss of ecological services and goods” but the ICJ only adjudicates disputes between states and in most transboundary environmental cases it will remain very difficult to attribute liability for environmental harm to a state. At a first glance, the policy paper of the ICC appears to open up the possibility to prosecute individuals for environmental crimes. However, causing serious environmental damage alone is insufficient legal grounds to prosecute individuals, unlike some environmental activists had hoped for. The ICC can only prosecute environmental crimes in combination with other “crimes against humanity” that are deliberately directed to a specific population with the object to remove or to exterminate that population.
The Costa Rica vs. Nicaragua case might be relevant to Indonesia though, as it ruled that loss of ecological services, including the relation between ecological damage and reduced air quality, is a harm that (despite the difficulty to establish its value) must be compensated by the state, if the harm is the result of an Internationally Wrongful Act. Combined with the customary international law principle of “due diligence,” this ruling may provide a legal basis for neighbouring countries to start proceedings at the ICJ for compensation for transboundary environmental harm in the form of reduced air quality caused by forest fires in Indonesia.
In 2002, ASEAN members agreed on the ASEAN Agreement on Transboundary Haze Pollution (AATHP). Indonesia only ratified the Agreement in 2014. Article 11 of the haze agreement obliged state parties to:
‘ensure that appropriate legislative, administrative and financial measures are taken to mobilise equipment, materials, human and financial resources required to respond to and mitigate the impact of land and/or forest fires and haze pollution arising from such fires.’
In case of a suit, the neighbouring states would have to prove Indonesia’s lack of diligence in implementing environmental protection and forest prevention procedures. In such a case, Indonesia will present proof of laws, procedures and all the measures it has taken to prevent the fires from happening and spreading, as well as the penalties it has imposed in the past on corporations that were considered liable for the forest fires. It is very doubtful that a legal proceeding at the ICJ, if it will ever arise at all, will succeed. To date the ICJ has only attributed state liability for trans-boundary environmental harm in much less complex and relatively clear-cut cases.
Jessica Durney, Crafting a Standard: Environmental Crimes as Crimes Against Humanity Under the International Criminal Court, 24 Hastings Envt’l L.J. 413 (2018) Available at: https://repository.uchastings.edu/hastings_environmental_law_journal/vol24/iss2/13
Nilufer Oral, ICJ Renders First Environmental Compensation Decision: A Summary of the Judgment, IUCN.org, (9 April 2018). Available at: https://www.iucn.org/news/world-commission-environmental-law/201804/icj-renders-first-environmental-compensation-decision-summary-judgment
Alessandra Lehmen, ICC to Focus on Environmental Crimes: A Landmark Move For International Environmental Law, Experts Guides.com (21 March 2017). Available at:https://www.expertguides.com/articles/icc-to-focus-on-environmental-crimes-a-landmark-move-for-international-environmental-law/arljgbwe
Matthew Taylor and John Barlett, Fresh Wave of Climate Strikes Take Place Around the World, theguardian.com (27 September 2019). Available at: https://www.theguardian.com/environment/2019/sep/27/fresh-wave-of-climate-strikes-take-place-around-the-world
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