1 dismal total of zero cases and1 dismal total of zero cases and

1 INTRODUCTION For a successful
international environmental legal system, no doubt effective enforcement
mechanisms should be involved. The lack of an enforcement institution for
international environmental law calls into question its effectiveness and the
perceived absence of sanctions. The ICJ had attempted to plug the enforcement
institutional gap for international environmental law by constituting the
short-lived Chamber for Environmental Matters in 1993, however after thirteen
years of existence the Chamber had seen a dismal total of zero cases and was
thus inevitably disbanded. The ill-fated destiny of the ICJ’s environmental
Chamber contrasts with the full Court which has seen cases with distinct
aspects of international environmental law concerning matters such as
transboundary pollution, the protection of land and marine natural resources,
the environmental sustainability of development projects, the impact of nuclear
weapons testing or use on the environment, and industrial uses of international
watercourses.1 Despite
this, the ICJ has only marginal enforcement capacity or none at all.2
This article will therefore investigate the enforcement mechanisms in
international environmental law and the role played by the ICJ in shaping it. The
first part will consider the approaches to enforcing international
environmental law with a view to discerning why these approaches may actually
be considered its ‘weakest link’. The latter part will explore the influence of
the ICJ, or lack of, in shaping international environmental law. 2 THE APPROACHES TO
ENFORCING INTERNATIONAL ENVIRONMENTAL LAWThe approaches to
enforcing international environmental law, as advocated by O’Connell, involves
avoiding the use of “coercive enforcement”.3
This is taken to mean a type of enforcement relating to one without the use of
force of threat. Tomkins notes that adopting this type of approach relies on
‘conciliatory and educational strategies to persuade individuals, organizations
and governments to comply’,4
as opposed to the ‘coercive powers to demand compliance to environmental laws,
generally labelled “command and control” strategies’.5
O’Connell argues that international environmental law is generally obeyed and
its enforcement is based primarily on compliance, not enforcement hence the
approaches taken are one of avoiding a coercive nature.6
From the outset, it is clear that deploying a compliance-based enforcement
system is preferred. This implies that an active discouragement to a
sanctioning culture of breaches of international environmental rules is sought
because in international environmental law, the ultimate goal is to obtain
compliance before the environment is harmed, not after the harm has occurred.7
To do so would be illogical since once the environment is harmed, the damage is
already done and irreversible hence adopting an induced compliance approach has
the advantage of coming before the breach, not after.8
There would be only consolatory use in gaining compliance once a breach has
occurred and no matter what sanctions are imposed as a result, whether it be
financial or trade, it would not undo the harm. It would thus appear that the
best incentive to gaining compliance of international environmental law would
be to avoid using a coercive type of enforcement.On the other hand,
Koskenniemi observes that, in international environmental law, when a
significant, persistent violation of a legal rule occurs, ‘it is doubtful
whether such compliance procedures suffice to deter or to deal with serious
or persistent breaches.’9
Such procedures relies on a relationship based on trust and are clearly
designed for implicit compliance. Should there be habitual offenders who abuse
that trust then they do so knowingly without there being any severe repercussions.
Here lies within a weak link in the lack of serious enforcement. O’Connell
concedes that ‘when the legal obligation is clear, negotiations have been held,
positive inducements have been made, and a time to comply has been given,
coercive enforcement is needed.’10
She therefore acknowledges that, in the unlikely event of persistent offenders
of international environmental rules, coercive enforcement should be used as a
last resort.In light of the above,
O’Connell was at the forefront in setting out several reasons to support
avoiding coercive enforcement in international environmental law. Firstly, ‘for
much environmental damage, there is no violation of a prohibitory rule which
could lead to the taking of enforcement action.’11
For instance if a member State party to the Kyoto Protocol is not in compliance
with its emissions limitation, then that State is only required to make up the
difference during the second commitment period plus a measly additional 30%. In
addition, that State will be suspended from making transfers under an emissions
trading program.12
This demonstrates that where States are prohibited to exceed their set emission
levels and they do indeed do so, there is no such meaningful enforcement
action. States are merely subjected to a trade suspension. In exercising their
sovereignty, any further punishing sanctions would undoubtedly stop States from
subscribing to the Protocol altogether. In a selfless manner, States are thus
far more likely to comply with their emissions limitations as it will be in
their interests to be able to participate in their emissions trading programs
rather than persistently exceeding it to no benefit to anyone other than to themselves.
In a similar sense, parties to the Kyoto Protocol may terminate the membership
of another party for material breach of the Protocol,13
for example if a State has exceeded the emissions limitations and they continue
to participate in emissions trading programs, such a sanction would be
counterproductive as it would be unlikely to encourage a breaching party back
into compliance.14 The
interest of the Protocol is first and foremost in protecting the environment
and by terminating the membership of another party simply does not help improve
the environment. This demonstrates further that States possess significant
advantages over the reality of a lack of enforcement consequence, highlighting
evermore the weak elements of enforcement in international environmental law.
State-to-State disputes in the above context will only ever be resolved by
countermeasures in the hope that they will yield and realize that the best way
to protect the environment is to cease to become selfish and adhere to all environmental
Treaties and Protocols.In spite of that, the majority
of international environmental law concerns corporations and individuals.
Taking the above into consideration in relation to the Long-Range Transboundary
Air Pollution Treaty (LRTAP), it is not as simple as States adhering to their pollution
emissions. It is mainly the corporations and individuals of the State who
create these emissions, therefore the responsibility falls on the State to
control and monitor their emissions in order to comply with the Treaty. In
order to do so effectively, Stephens notes that domestic courts have an
important role to play in enforcing environmental laws and regulations,
including those that implement treaty obligations,15
in line with Principles 10 and 13 of the Rio Declaration.16
However the Conference on Environment and Development held in Rio only resulted
in a Declaration and thus only soft law documents were produced which were not
subject to enforcement.17
This means that if States who have not ratified the protocol under the LRTAP
requiring the reduction of sulphur dioxide release into the atmosphere, such as
the United States, whilst they have a moral obligation to develop national law
to compensate victims affected by the sulphur dioxide emissions in accordance with
Principle 13 of the Rio Declaration, they do not have a legal obligation to.
Thus, the corporations and individuals in the US are free to burn unlimited
soft coal having the double effect of not being obliged to compensate anyone
who is a victim of the pollution and the US not having violated any treaty
obligation. The ease of the ability of the United States to escape culpability
in such a manner further highlights the flimsiness of enforcement in
international environmental law and the preference to avoid using coercive enforcement. 3 THE ROLE THE ICJ HAS
PLAYED IN SHAPING INTERNATIONAL ENVIRONMENTAL LAWAs alluded to in the
introduction, the ICJ has seen several cases concerning distinct aspects of
international environmental law. However the actual influence the ICJ has had
in shaping it is somewhat questionable. This is because some of the cases
brought before the ICJ were frustrated because it did not have the jurisdiction
in the matter.18As with the 1974 and 1995
Nuclear Tests Jurisdiction Judgements, these cases were frustrated because the
ICJ did not ultimately have jurisdiction to deal with them in the end. In
short, Australia and New Zealand had issued proceedings against the French Government
for carrying out a series of nuclear tests in the South Pacific. Whilst they
had relied heavily on the environmental damage done by the nuclear tests, their
main argument centred on an infringement to their sovereignty. The Court thus
indicated provisional measures on 22 June 1973 affirming that ‘the French
Government should avoid nuclear tests causing the deposit of radioactive
fallout on the territory’ of the States concerned.19
The choice of the word “should” by the ICJ is not entirely convincing of its
authority, the term implores rather than demands an obligation. Nevertheless,
the Court in 1974 declared that the ‘claim of New Zealand no longer has any
object and that the Court is therefore not called upon to give a decision’20
after France had retreated their nuclear testing in the atmosphere in the South
Pacific on their own accord. If France’s commitments were not complied with,
the ICJ stated that ‘the Applicant could request an examination of the
situation…’21 A
few years down the line in 1995, France announced it would conduct a series of
eight nuclear weapons tests in the South Pacific to which New Zealand invoked
the aforementioned “examination”. Intriguingly, the ICJ struck down the New
Zealand request for an examination because the nuclear tests conducted by
France were ‘not atmospheric but underground…’22
Thus the ICJ ultimately did not have jurisdiction in the case. The failure to decide authoritatively
on the case demonstrated a reluctance to exercise power by the ICJ. If the ICJ
were truly omnipotent and infallible, they would not have hesitated to hand
down a judgement declaring that France’s nuclear actions were encroaching on
the Applicant’s territories, instead they had undone themselves over a
technicality. The Court had recognized the existence of ‘obligations of States
to respect and protect the natural environment’23
but had chosen to take the position on different questions, one being the
obligation not to cause damage to the marine environment resulting from radioactive
pollution. Had the ICJ shown fearlessness they would have recognized that the
South Pacific is geographically not anywhere near France and that any type of nuclear
activity in that region would be damaging on the environment and be intruding
on the Applicant’s territories. The cowardice shown by the ICJ in this instance
demonstrates that they play an insignificant role in shaping international
environmental law.However, as enumerated in
the introduction, the ICJ has exercised jurisdiction over several
environmentally related cases in recent times and the ICJ’s environmental case
law has grown dramatically. Thus this may indicate a shift in the role being
played by the ICJ into becoming an increasingly significant one. Nevertheless,
in some cases, the Court’s ‘reasoning is caught in an unescapable paradox’24
where it has ‘experienced difficulties in dealing with the scientific aspects
involved in environmental litigation and especially in assigning the burden of
proof concerning allegedly environmental risks of damages, an area where
problems relating to proof are rampant.’25
This is because ‘environmental law is based on prevention and the ICJ’s
findings are based only on actual harm.’26
This goes to show that the ICJ prioritises the claims of the States over the protection
of environmental law, thus the role the ICJ plays in shaping environmental law
is ultimately an insignificant one. 4 CONCLUSIONUltimately, enforcing
international environment law remains its weakest link. Having said that, the
avoidance of the coercive use of enforcement may be weak in nature, however it
is assuredly the most suitable approach in achieving compliance in international
environmental law. Finally, despite the growing jurisprudence of environmental
matters in the ICJ, for as long as they prioritise State’s claims over
protection of the environment, the role they play will remain an insignificant
one.          BIBLIOGRAPHY BOOKS·        
Birnie P, Boyle A, Redgewell C, International Law and the Environment (3rd
edn, OUP 2009)·        
Stephens T, International Courts and Environmental Protection (CUP 2014) JOURNAL ARTICLES·        
Brunnée J, ‘Enforcement Mechanisms in
International Law and International Environmental Law’ (2005) Environmental Law Network
(ELNI)·        
Fitzmaurice M, ‘Environmental Protection
and the International Court of Justice’ in V Lowe and M Fitzmaurice (eds) Fifty Years of the International Court of
Justice: Essays in Honour of Sir Robert Jennings (CUP, 1996) 293-315·       
Juste-Ruiz
J. (2013) The International Court of Justice and International Environmental
Law. In: Boschiero N., Scovazzi T., Pitea C., Ragni C. (eds) International
Courts and the Development of International Law. T.M.C. Asser Press, The Hague,
The Netherlands·        
Koskenniemi M, Breach of Treaty or
Non-Compliance? Reflections on the Enforcement of the Montreal Protocol, 3 Y.B.
INT’L ENVTL. L. 123, (1992)·        
O’Connell ME,
‘Enforcement
and the Success of International Environmental Law’ (1995-1996) 3 Ind. J. Global Legal Stud. 47
·        
Prost M, Camprubi A. T, ‘Against Fairness?
International environmental law, disciplinary bias, and Pareto justice’ (2012) Leiden Journal of International Law 

1
Jose Juste-Ruiz (2013) The International Court of Justice and International
Environmental Law. In: Boschiero N., Scovazzi T., Pitea C., Ragni C. (eds)
International Courts and the Development of International Law. T.M.C. Asser
Press, The Hague, The Netherlands, 384

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2
ME O’Connell, ‘Enforcement and the Success of International Environmental Law’
(1995-1996) 3 Ind. J. Global Legal Stud. 47, 51

3
ibid., 53

4 Kevin Tomkins, ‘Police, Law Enforcement and the Environment: Current
Issues in Criminal Justice’ Volume 16, Issue 3; Mar 2005, 294

5 ibid.

6 O’Connell (n2) 47

7 ibid., 56

8 ibid.

9 Martti Koskenniemi, Breach of
Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal
Protocol, 3 Y.B. INT’L ENVTL. L. 123, (1992) 127-28.

10 O’Connell (n2) 56

11 ibid., 53

12
http://unfccc.int/kyoto_protocol/items/2830.php

13 Vienna Convention on the Law of
Treaties, opened for signature May 22, 1969, art. 60

14 O’Connell (n2) 56

15 Tim Stephens, International Courts and Environmental Protection (CUP 2014)

16 Principle 10 provides that
‘environmental issues are best handled with the participation of all
concerned citizens, at the relevant level… Effective access to judicial
administrative proceedings, including redress and remedy, shall be provided.’
Principle 13 provides that ‘states shall develop national law regarding
liability and compensation for the victims of pollution and other environmental
damage’.

17 See Report of the United Nations
Conference on the Human Environment, U.N. Doc. A/CONF. 48/14/Rev. 1, U.N. Pub.
E. 73, II.A. 14, 1973.

18 Juste-Ruiz (n1)

19 ICJ: Nuclear Tests (New Zealand v
France), Order (22 June 1973) 36

20 ibid., (Judgement) (20 December
1974) 55

21 ibid., 63

22 Juste-Ruiz (n1) 386

23 Nuclear Test (n20) 64

24 Juste-Ruiz (n1) 399

25 ibid.

26 ibid.

3 O’Connell (n2) 56

4 Tim Stephens, International Courts and Environmental Protection (CUP 2014)

5 Principle 10 provides that
‘environmental issues are best handled with the participation of all
concerned citizens, at the relevant level… Effective access to judicial
administrative proceedings, including redress and remedy, shall be provided.’
Principle 13 provides that ‘states shall develop national law regarding
liability and compensation for the victims of pollution and other environmental
damage’.

6 See Report of the United Nations
Conference on the Human Environment, U.N. Doc. A/CONF. 48/14/Rev. 1, U.N. Pub.
E. 73, II.A. 14, 1973.