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Enforcement of Environmental Obligations by International Tribunals

New York Law Journal

December 31, 2012

In previous columns I have discussed the difficulty of enforcing under domestic law the emerging international standards for environmental conduct by corporations ("International Standards for Corporate Conduct," April 30, 2012) and of using an international forum under the North American Free Trade Agreement to assure enforcement of the parties' domestic environmental laws ("Environmental Enforcement and Protection Under NAFTA," Aug. 25, 2008). This column considers the effectiveness of two major international bodies, the International Court of Justice (ICJ) and the Inter-American Commission on Human Rights, in enforcing environmental obligations arising under treaties and customary international law against nations that violate those obligations.

As discussed below, despite its progressive language on the implied incorporation of international environmental standards into treaties, the ICJ has shown reluctance to decide the merits of environmental disputes, or to enforce the environmental judgments it does render, preferring instead to require the parties to negotiate in good faith to find environmentally responsible solutions to their disputes. The Inter-American Commission has been willing to consider certain large-scale environmental abuses within the scope of its human rights jurisdiction, but it too has failed to fashion enforceable remedies for such abuses. Whether court-ordered negotiations or strongly worded "recommendations" are an adequate remedy for violations of international environmental obligations is the subject of this column and an increasingly important question as the nations of the world confront the challenges of climate change.

The Danube River Diversion

The dispute between Hungary and Slovakia illustrates the difficulty the ICJ has had in enforcing international environmental obligations. In September 1977, Hungary and Czechoslovakia entered into a treaty to construct and operate the Gabcikovo-Nagymaros Barrage System on the Danube River. (After the division of Czechoslovakia in 1993, Slovakia succeeded to Czechoslovakia's rights and obligations.) The treaty contemplated a cross-border series of dams and locks to produce electricity, improve navigation, protect the surrounding environment, regulate ice removal and protect adjacent areas from flooding. The treaty specified that the parties would act to ensure that water quality in the Danube would not be impaired by the project.

Construction of the project began in 1978, but was suspended by Hungary in 1989 due to growing waves of protest over the project's alleged environmental impacts, including decreased groundwater levels, water pollution, and economic effects on regional agriculture and fisheries. Over the next three years, negotiations continued between Czechoslovakia and Hungary to try to address these concerns and carry out the treaty's objectives. However, while negotiations were under way, Czechoslovakia undertook the unilateral diversion of the Danube onto Czech territory, causing the downstream portion of the river to recede below its all-time low water mark. Czechoslovakia justified this diversion on the ground that Hungary's suspension of the treaty made it impossible to carry out the work as initially contemplated and required Czechoslovakia to pursue alternative means of realizing the treaty's principal objectives.

Hungary responded by terminating the treaty in 1992 and applying to the ICJ to resolve the dispute. In 1997, after extensive briefing and argument by the parties, the ICJ held, first, that Hungary's 1989 suspension of work on the dam was illegal; second, that Slovakia's diversion of the Danube was also illegal; and, third, that Hungary's 1992 termination of the treaty was invalid, so that the treaty remained in effect. The ICJ also held that developing international environmental standards must be deemed to be incorporated into the treaty.

Although the treaty was ratified before many modern environmental norms were developed, it was not to be read or interpreted as a static document, but must be construed to include evolving international environmental standards, even if those standards were not referenced in the treaty or recognized at the time of the treaty's ratification. "The environment," said the court, "is not an abstraction but represents the living space, quality of life, and the very health of human beings, including generations unborn."

The ICJ then directed the parties to negotiate to carry out the objectives of the still-effective treaty and to consult with a third party to help decide how best to achieve the treaty's environmental goals. In these mandatory negotiations, the countries were to look afresh at the effects of the Danube power plant on the environment and were to seek agreement on the volume of water to be released into the Danube's historic channel. Vigilance, said the ICJ, is required in this area because environmental damage is often irreversible, and both parties were under an obligation to avoid that damage if at all feasible.

Unfortunately, while the ICJ articulated a compelling environmental principle with major implications for treaty interpretation in other international disputes, negotiations between Hungary and Slovakia as to how best to implement the ICJ ruling are still ongoing 15 years later. In this conflict at least, the ICJ's remedy of obligatory negotiations to remedy environmental violations—and to prevent potentially irreparable environmental injury—has not yet proved effective.

'Orion' Mill on River Uruguay

In a more recent decision, involving a sharply contested environmental dispute between Argentina and Uruguay, the ICJ found that a challenged project could continue to operate despite Uruguay's clear violation of an environmental treaty with Argentina to protect the River Uruguay that formed their border. This "pulp mill" dispute began in 1961 when a treaty was signed that defined their common boundary along the River Uruguay and also contemplated a future bilateral regime to govern use of the river. That future "Statute of the River Uruguay" was entered into in 1975 and established "CARU," a joint institution to oversee the operation of the river and ensure that the objectives of the 1975 Statute were fulfilled.

In 2003 and 2005 Uruguay authorized two private firms to build pulp mills along the river. Only one, the "Orion" mill, was completed because Argentine environmental protesters across the river from the planned mills began a blockade of the international bridge over the river (in 2006 work on both mills was suspended because of these blockades). The protesters contended that the mills were already contaminating the river and harming the aquatic and surrounding environment.

After negotiations between the countries failed, Argentina sued Uruguay in the ICJ in 2006, arguing that Uruguay had violated the 1975 Statute both substantively and procedurally. Substantively, Argentina claimed that Uruguay had violated its obligation to contribute to the optimum and rational utilization of the river; had failed to ensure that management of the soil and woodland would not impair the river area or the quality of the river water; had not coordinated measures to avoid changes in the ecological balance; had not prevented pollution; and accordingly had not preserved the aquatic environment. Argentina also alleged that Uruguay had failed to inform CARU of its plan to build pulp mills, as required under the 1975 Statute, so that CARU could determine if the plants would cause significant environmental damage to Argentina and, if so, to direct the parties to cooperate to prevent that damage.

While the case was pending before the ICJ, the Orion mill began operations, with resulting strong odors that raised further environmental concerns and provoked many Argentine complaints. Environmentalists in Argentina maintained an almost permanent blockade of the bridge between Argentina and Uruguay during the four years that the case was pending before the ICJ in the Hague. In 2010 the ICJ finally issued its decision, finding that, while Uruguay had breached its procedural obligation to inform CARU of its plans and thereafter to negotiate with Argentina to avoid adverse impacts, Uruguay had not violated any substantive environmental obligation under the 1975 Statute. Accordingly, requiring Uruguay to dismantle the plant was not an appropriate remedy since Argentina had failed to demonstrate that the increased pollution in the river could be traced directly to the Orion mill.

Instead, the ICJ focused on the importance of cooperation among nations on environmental issues and characterized CARU as a pivotal mechanism to ensure such joint environmental action. The ICJ thus appeared more concerned with strengthening the parties' ongoing negotiations over river use than with the potential environmental effects of Uruguay's pulp mills.

As it turned out, this approach worked. A few months after the ICJ decision, Argentina and Uruguay signed an agreement reinforcing their commitment to environmental protection of the River Uruguay. The agreement provided for joint environmental monitoring of the river, allowing each country's scientific team to monitor pollution levels and report all results to CARU. This contrasted with the continuing stalemate between Hungary and Slovakia, which have still not arrived at a mutually acceptable solution to their dispute, which involves not simply water pollution from a single plant but the diversion of a major river from its historical course to the clear detriment of the downstream country and its citizens.

Brazil's Yanomami Lands

If the ICJ has had difficulty deciding the merits of environmental disputes between neighboring states, can less formal international tribunals or commissions address such issues more directly, particularly where only one state is involved and the complainants are private citizens? The Inter-American Commission on Human Rights, which consider human rights complaints involving the 35 members of the Organization of American States (OAS), provides several examples suggesting that even such quasi-judicial international bodies are limited in addressing the merits of human rights disputes with significant environmental implications. Two examples involve the Yanomami people in Brazil and the Inuit people in Alaska and Canada.

In 1997 the commission undertook a comprehensive review of human rights in Brazil, including alleged human rights violations by the government that also had a devastating environmental impact on the Yanomami's historic lands. Brazil's 1988 constitution recognizes the "original domain" of indigenous peoples to the land they have historically occupied. Through a process known as "demarcation," Brazil granted permanent recognition to the customs, beliefs, and traditions of indigenous people and granted ownership of the lands occupied by them to help preserve their culture and livelihoods.

Beginning in the 1950s and continuing until the present, economic expansion in Brazil introduced new people into indigenous areas, causing widespread destruction of tropical forests and natural habitat and devastating indigenous populations, culture, and customs. The Yanomami people were severely affected by the construction of the Northern Perimeter Highway in the 1970s, which introduced nonindigenous workers into the Yanomami lands and sparked epidemics that decimated the unvaccinated population.

When valuable minerals were also discovered in the area, new waves of prospectors and attendant suppliers, traders, and other representatives of a growing Brazil brought a new wave of disease to the Yanomami and destruction to their historic lands. As with so many conflicts involving indigenous communities, the impacts from the exploitation of natural resources by the larger and more developed civilization had severe environmental and human rights consequences, particularly when human rights are understood to include social and economic (as well as civil and political) rights.

In 1980, a complaint was filed with the commission by the Yanomami protesting Brazil's attempted reduction of Yanomami native lands. Five years later, the commission, in its 1985 decision involving Brazil, noted serious human rights violations and recommended that the Yanomami lands be demarcated to avoid further violations. In its 1997 report, the commission noted that the recommendations from the 1985 decision had been carried out by Brazil and the Yanomami lands demarcated. Yet the commission found that a number of Yanomami land programs had been terminated and, as a result, so-called "invaders" and others had moved back onto demarcated Yanomami lands in order to mine or otherwise exploit them.

The commission concluded that, despite the demarcation of Yanomami lands, Brazil's irregular and feeble protection of the Yanomami people left them in constant danger and their environment suffering continuing deterioration. The commission therefore recommended that Brazil institute federal protection measures for all indigenous lands threatened by outside interests, with special attention to the Yanomami.

Nothing is that simple, however, in the context of Brazil's rapid economic development and its consequent demand for increasing electric power, fuel for its ethanol cars and trucks and land for its export crops such as palm oil, soy and beef. While Brazil has made substantial progress in the last several years in reducing deforestation in some areas, it is now, contrary to the commission's 1997 recommendations, considering a bill that would allow mining on indigenous lands in return for paying the indigenous owners 2 percent of the profits. While some indigenous groups endorse the bill as an economic windfall, the Yanomami and other groups oppose it because they believe (probably correctly, based on history) that it would bring more disease, land destruction and confrontation to their lands. While no vote is expected on this legislation until mid-2013, it seems clear that Brazil feels free to ignore, without penalty, many of the commission's recommendations with respect to the long-term protection of its indigenous lands.

Inuit Challenge to U.S. Policy

The United States, of course, has its own shameful record of abusing both Native Americans and their environment on which their cultures depend. Climate change has brought the latest iteration of this practice in Alaska, as warming seas have threatened both food supplies, settlements and traditional cultures of many Inuit communities. In 2005, the Inuit Circumpolar Conference and Inuit individuals from both the United States and Canada sought redress from the Inter-American Commission of Human Rights, claiming that the United States' failure to address climate change violated the Inuits' rights under the American Declaration of the Rights and Duties of Man, the 1992 U.N. Framework Convention on Climate Change and customary international environmental law.

The Inuit noted that the United States was then the world's largest emitter of greenhouse gases and should therefore bear the greatest share of responsibility for global warming. The arctic has felt the impact of global warming more acutely than any other region in the world, with direct impacts on everyday Inuit life. Sea ice, which the Inuit use for travel, hunting, and harvesting, is deteriorating at an alarming rate; weather is increasingly unpredictable, with disastrous effects on Inuit travel and hunting; increased temperatures have led to increased skin cancer, cataracts, immune system disorders and heat-related health problems. Projected climate impacts are expected to be much worse and to threaten an increasing number of villages and much of the Inuits' traditional culture.

The Inuits therefore asked the commission to find that the failure of the United States to adopt greenhouse gas emissions limits, to cooperate with other nations to reduce global emissions and to provide assistance to the Inuit people to adapt to the impacts of climate change constituted a violation of the American Declaration. The commission, however, dismissed their petition in November 2006, holding, in an unpublished opinion, that the Inuit failed to establish that these alleged facts would constitute a violation of rights protected by the American Declaration.

Conclusion

The urgent need for the nations of the world to agree on, and take, concrete actions to confront climate change—both by reducing their respective greenhouse emissions and helping developing countries adapt to the impacts of global warming—has underscored the need for reliable mechanisms to enforce countries' climate change and other environmental commitments. Unfortunately, the records of the ICJ, a judicial body with global jurisdiction, and the Inter-American Commission on Human Rights, a regional quasi-judicial body, in seeking to enforce international environmental obligations through negotiations (in the case of the ICJ) or recommendations (in the case of the commission) indicate that a more effective, and more timely, remedy is required if the international community is to succeed in limiting and adapting to climate change and protecting the already scarce environmental resources on which human life and civilization depend.


Stephen L. Kass is a partner and co-director of the environmental practice group at Carter Ledyard & Milburn and an adjunct professor at Brooklyn Law School and Columbia University's School of International and Public Affairs. Katherine Mirett, an associate at Carter Ledyard, assisted in the research for this column.

Reprinted with permission from the December 31, 2012 edition of the New York Law Journal © 2012 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.


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