ICTs as the New Environmental Sentinels 1

1 Introduction

Throughout the history of international law, courts and tribunals have played a crucial role. They have developed alongside growth in the body of international law. Understanding role of international courts and tribunals (ICTs) is important for peaceful settlement of international disputes through the instrumentality of law. The rapid upswing in the number of specialized ICTs (in areas such as trade, human rights, law of the sea, criminal justice and environment) can be perceived as an attempt by the sovereign states to maintain viability of the ICTs in light of perplexity in the international law-making process, 1 growing recognition of peaceful co-existence, quest for institutionalized cooperation and emergence of some of the ‘common concerns of humankind’. 2

The gradual ‘greening’ of international law and international institutions has taken deep roots even as international environmental law-making process has come of age at a time of great perplexity. 3 Hence, it could not but have affected existing dispute settlement forums such as International Court of Justice (ICJ), Permanent Court of Arbitration (PCA), WTO Dispute Settlement Mechanism, International Tribunal for Law of the Sea (ITLOS) and others. In many of the cases, the ICTs have sought to balance competing developmental requirements and environmental considerations within the corpus of International Environmental law (IEL).

In the wake of judicial churning, several principles have emerged that include ‘no harm’, ‘strict liability’, ‘polluter pays’, ‘precaution’ and even ‘sustainable development’. Hence ICTs have gradually emerged, alongside political processes of the sovereign states, not only to make sense of the existing principles of IEL as it exists (de lege lata) but also in the future (de lege feranda) to address the global environmental problematique.

It is contended that ICTs “ensure the strength, quality, and longevity of environmental protection against other interests pursued by parties”. 4 In the wake of process, practice and pattern of addressing environment specific problematique, ICTs have emerged as important global actors for environment protection and growing penchant for sustainable development. Their advent, survival, growth, contribution to problem resolution and ultimate legitimacy are duly shaped by vagaries of interests, concerns and political currents of the sovereign states at the altar of institutionalized cooperation. In the post-decolonization era, shrinking of geographical distances and communication explosion has brought about a “substantial transformation in the content and character of international law”. 5

2 UN Charter Template

The UN Charter (1945) requires the member states to achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character (Article 1(3)). It also contains a general prohibition against ‘threat or use of force’ (Article 2(4)). As a corollary, there is a commensurate obligation on the member states to cooperate to settle disputes by ‘peaceful means’ (Article 2(3)). 6 In addition to that the UN Charter expressly lays down an obligation “to settle disputes which are likely to endanger international peace and security” Article 33 (Chapter VI).

Even as the UN Charter offers a range of methods (such as negotiation, mediation, conciliation, good offices and inquiry) to achieve peaceful settlement, this chapter seeks to focus on the settlement through ICTs i.e. international adjudication and arbitration. In view of constraints of time and space, it seeks to deal with international disputes between states only. In this context, there are two noteworthy developments: (i) growth and proliferation of MEAs that address sectoral environmental issues as well as institutionalized form of cooperation and dispute settlement mechanisms (non-compliance procedures) and (ii) growth in the number of ICTs on international plane that perform more specialized and diverse functions.

In view of the above, an effort has been made to contextualize the role played by some of the judicial institutions such as International Tribunal on Law of the Sea (ITLOS) and Annex VII Arbitral Tribunals established under UN Convention on the Law of Sea (UNCLOS), arbitral tribunals facilitated by Permanent Court of Arbitration (PCA) as well as a new approach being followed by International Court of Justice (ICJ) to push states (parties to MEAs) to cooperate with each other to give ‘due regard’ and perform obligations in ‘good faith’.

ICTs new avatar marks a significant departure from their traditional role as mere dispute settlers. They pursue other goals such as international norm advancement and maintenance of co-operative international arrangements. It negates a misplaced notion that due to its inherent adversarial nature; judicial settlement is not a best method to resolve environmental disputes. The current patterns of institutionalized environmental cooperation require closer scrutiny in view of global environmental crisis, expectations of the sovereign states and questions regarding the reinvented role of ICTs as judicial institutions. Hence, it makes to decipher the broad contours of ‘duty to cooperate’ as laid down by ICTs in some of the recently decided cases.

3 Global Cooperative Enterprise

The global regulatory technique of multilateral environmental agreements (MEAs) encompasses flexibility, pragmatism, in-built law-making mechanism as well as step-by-step consensual approach to norm-setting. 7 In fact it is truism to state that:

MEAs have emerged as one of the best ways of institutionalizing international (environmental) cooperation and triggering national action in the environmental sector...increasing number of treaties and secretariats responsible for their administration, coherence and coordination of efforts has emerged as a central issue for effective international environmental governance. 8

The development of institutional patterns of MEAs has made positive advances amidst overall architecture international environmental governance (IEG). 9 In the last five decades, MEAs have emerged as one of the important tools for institutionalized intergovernmental cooperation to address specific environmental issues. As sui generis regulatory tools, MEAs reflect a ‘pattern’ as regards nomenclature, form, in-built law-making process and institutions such as plenary and subsidiary organs. These treaty-driven processes carry unique features to redress a specific problematique. It explains rationale for development of treaty-making as a fine art and craft comprising new tools and techniques to address sectoral environmental issues. It is through such giant treaty-making ‘process’ that the UN has catalyst for “major shift in the normative structure of international law”. 10

Thus, treaties seem to have now become cornerstone of global regulatory enterprise. As a result, this sui generis law-making process has made inroads in to cherished domain of sovereign jurisdiction of the states. Increasing need for international environmental cooperation has propelled states to share common institutional platforms. In a way, the notion of sharing sovereignties in common, as described by the German Constitutional Court, by the states to address some of the global common concerns of humankind has come to be institutionalized. In this organic process, sovereign states have sought to create and, in turn, rely upon ICTs for environmental dispute resolution.

4 Compliance as Dispute Settlement Tool

One of the significant issues in international law in general and environmental law in particular is compliance control–the international monitoring and supervision of state parties’ implementation of and compliance with treaty-based obligations. 11 There are multiple factors that make compliance control a matter of special concern in the context of international environmental law, due to sensible reasons such as:

First, as international environmental regulations become more technical and detailed, therefore more complex, they entail a commensurately greater need for international control of individual states’ compliance. Second, as the economic cost of compliance with such environmental regulation rises, states have an increased interest in making sure that other states, subject to the same international regulations live up to their obligations, thereby ensuring competition on a level playing field. Third and perhaps most significantly, normative changes within environmental treaty regimes tend to be frequent and often the result of informal steps taken by the conference of parties (COP) thus are apt to give rise to questions about the scope, if not the very existence, of the obligations at stake. In such situation compliance control serves not just verification of a state’s abidance by its obligations, but also–preliminarily–ascertainment of the existence of the norm(s) potentially in dispute, as well as of the exact nature and scope of the individual state’s obligations flowing therefrom. 12

Presently, a number of MEAs 13 provide for a non-compliance (NCP) procedure. These procedures address compliance problems in a targeted, responsive and non-confrontational manner as compared to traditional dispute settlement mechanisms. NCP seek to provide encouragement to comply with States treaty obligations in a flexible approach in cases of non-compliance as compared to the traditional modes for settlement of disputes in international law. In some cases, however, NCPs function with ‘duality’ for “enhancing compliance with, and responding to non-performance of international obligations” 14 alongside traditional dispute settlement provisions (DSPs). 15 It is warranted by the need for a more sophisticated approach to enforcement and compliance rather than one based primarily on the award of damages or the third-party adjudication of claims to resources. 16

In this context the web of institutional machinery could include a compliance committee and meeting of the States parties to coordinate policy, develop the law, supervise implementation, resolves conflict of interest and community pressure on individual states. Hence, they could work more effectively than traditional bilateral forms of dispute settlement. Still, these bodies suffer from inherent weakness as regards inability to reach an agreement on difficult issues or to ensure full participation of all the concerned states. Even in a case where adequate participation is achieved; such bodies are often open to the criticism that their decisions represent only ‘lowest common denominator’. NCP might well contribute to ‘softening’ of normativity of individual rules and regulations as state parties could perceive compliance with obligations as negotiable.

The above quandary has led to a lot of churning in the scholarly realm and in policy making circles about relationship between compliance mechanism and dispute settlement mechanism. 17 The parallel existence of dispute settlement and NCP could raise some concerns. For instance, is there any hierarchy in the application of these systems or are they mutually exclusive? Due to parallel existence of NCP and DSP, a defaulting state could find itself subject to both the regimes. The rise of such institutions, assigned with specialized functions, appear to be a product of the “compelling force of circumstances” 18 or “evident need” 19 for institutionalized cooperation among the sovereign states.

5 ICTs: Cooperative Forums

ICTs, as international institutions, stand as testament to one of the deepest and most puzzling forms of institutionalized cooperation in the international system. 20 It is also reflected in the process of ‘institutionalization’ 21 of international environmental law itself.

Since the states cherish sovereignty, they are generally reluctant to engage a third party in the settlement of disputes. There are genuine fears about the third party adjudication. This is especially so because of uncertainty about legal validity of the case as well as outcome in of dispute settlement. They consider it problematic first to give consent to refer the dispute to either a special or general body for adjudication. 22

The declaration accepting compulsory jurisdiction in ICT such as ICJ could expose each State to broad categories of disputes involving uncertain and contested principles of customary international law. 23 These issues, sometimes, could assume nationalistic fervor and create highly surcharged atmosphere in flashpoints such as the Suez Canal, the Falkland Islands, Diego Garcia, Kosovo, Crimea, Catalonia. Nevertheless, there are cases wherein the States could overcome the fears and possibly consider judicial settlement as a better option than recourse to the use of force. There have been several cases wherein the concerned states jettisoned reservations and chose to refer contentious cases for international adjudication.

In an effort to understand the shift in the behavior of states, some scholars, have opined that often the ICTs serve as functional solution to cooperation dilemmas among the states. 24 It is also perceived that “functions and international cooperation generally are inherently benign”. 25 As a corollary, states create ICTs to overcome “collective action problems, signal their credibility, and reduce transaction costs”. 26 The role of the ICTs as institutions had been modest in the past. 27 The result was that many international disputes remained unresolved, numerous international law norms and doctrines remained underdeveloped, and international law, in general, remained under enforced. This period witnessed an absence of robust judicial institutions giving rise to institutional vacuum. 28

In recent years, we have witnessed a wave of ‘new’ ICTs established for a broad variety of issues. 29 An increasing number of ICTs that produce a growing stream of decisions appears to be one of the dominant features of the international legal order in the post-UN Charter period. Hence, understanding these ICTs, as institutions, is important for the peaceful settlement of international disputes through the instrumentality of law. How do international courts work? Why do states create them, confer jurisdiction on them and (generally) obey them? What explains their workability, popularity and their fragmentation? We still do not adequate answers to the questions plaguing the international legal system.

The behavior of States, in increasing complexity of international relations, indicates their belief and trust in the very idea of ‘institution’ of international law. There is widely perceived misconception that States break law more often than they respect it. Still, almost all of them do feel the need to abide by the law as they end up justifying their conduct within the limits of existing law. 30 Several factors including emergence of the so-called ‘new nations’ 31 and the resolute role of the UN system in the past 75 years as regards “institutionalisation of ‘multilateralism”’, 32 international law has come of age to be a stronger, widely accepted and more complete system. 33

With the passage of time, ICTs have become more diverse and specialized. Interestingly, almost all of the new judicial and quasi-judicial institutions created in recent decades were invested with compulsory powers of jurisdiction in the sense that the new courts could accessed unilaterally against parties to their constitutive instruments. 34 Apart from it, jurisdiction is also parceled out to coequal institutions with no higher appellate authority to resolve jurisdictional conflicts. 35 Increasing use of these institutions suggests that the growth of ICTs has not remained a mere “bubble, fragile and ephemeral”. 36 The cumulative effect of these developments underscores that “international adjudication (which was once the exception to the rule –diplomatic settlement) is becoming the default dispute settlement mechanism in some areas of international relations”. 37

In fact, these institutions have become fulcrum for global governance. 38 The exponential rise in the number of ICTs and expansion of their powers can be primarily understood as a change in the attitude and aspirations underlying the functions of these institutions. With the changing times, these institutions are reinventing and revitalizing themselves by moving beyond remaining as mere dispute settlers. 39 In this context, it has been pertinently contended by Bogdandy and Venzke that:

“[i]nternational courts stabilize normative expectations, which includes the reassertion of international law’s validity and its enforcement; they develop normative expectations and thus make law; and they control and legitimate the authority exercised by others”. 40

In a sense, international judicial institutions must consider how their decisions will be understood not only by today’s litigants, but also by potential litigants in future and other legal actors. In an effort to redefine them, ICTs seem to be maintaining “co-operative international arrangements”. 41 This especially applies to ICTs based on specific legal regimes such as WTO, ITLOS, etc. These new ICTs not only promote goals of their overarching regimes but also help to maintain the “political, economic and legal equilibrium”. 42 It seems this serves as a basis around which ICTs come into being, serve as cooperative institutions and most of the UN member states respect them as international judicial forums. They appear to have become indispensable for complex state-centric global affairs of the twenty-first century.

6 ICTs: New Environmental Sentinels

The global environmental issues constitute a unique class having larger ramifications for our future affecting humans, other species and natural resources. In turn, they require sensitivity, distinct approaches and institutionalized cooperative methods for resolution of problems. Gradually, the environmental considerations have crystallized as significant factors in the whole structure of international law and relations. The whole notion of security–as traditionally understood in terms of political and military threats to national sovereignty–is being expanded to include the growing impacts of environmental stress. 43

Environmental factors have been increasingly acknowledged to be a potential high voltage source of international tension and disputes. They could transform into actual threats to international peace and security as seen in some recent conflicts between sovereign states. As a result, many of the considerations seem to justify heightened attention for the prevention and settlement of environmental disputes. In fact, perennial quest for resources (such as water, oil, gas, minerals, forests, habitats) are already grounds for frictions, diplomatic posturing, high profile negotiations as well as subject matter of concern for international organizations, civil society and scholars. The growing demand and need for access to natural resources, coupled with a limited or at least shrinking resource base has already triggered disputes among the sovereign states. 44

Furthermore, the nature and extent of international environmental obligations has increased enormously as states assume broader and deeper commitments in a wide variety of areas of developmental activities. These, in turn, provide fertile ground for legal issues of state responsibility for breach of a treaty or any other international legal obligation. The thickening web of MEAs and norms increases possibilities that disputes might arise as regards interpretation of these obligations. As these international environmental obligations affect national interests, and impose large administrative, economic, and political costs, sovereign states that do not comply with these obligations are perceived to gain an unfair competitive advantage. Thus, it seems, in an increasingly globalizing world, sovereign states are likely to be dragged into international disputes due to environmental harm resulting from activities of their nationals within the country or in other countries when they make investments (in activities such as coal mines, other mineral resources or nuclear power plants or port projects).

There are adjudicative bodies that presently operate in the field of international environmental law. Thus, ICTs form an essential part of the larger mosaic of international environmental governance (IEG). 45 It is contended that the existing architecture of adjudication is confrontational, adversarial and could end up providing unpleasant outcomes. It also involves a limited number of parties, and can only deal with a narrow range of issues. 46 Still, adjudicatory processes also have some positive aspects as they help in insulating the matter from political processes. Furthermore, they involve a third party in the dispute settlement process comprising judges who adhere to high standards of independence and impartiality. The adjudicatory process rests upon verifying claims made on the basis of reasoned arguments and render judgment bases upon relevant legal principles.

Hence, it seems, international environmental adjudication is a rational procedure that can draw trust and give effect to the wishes of the parties. The process could in fact help in upholding environmental or other public values embodied in legal norms applicable to the case at hand. 47 Cumulatively, these attributes could make ICTs in dealing with environmental cases unique (among other international environmental institutions) as they could provide an authoritative recognition to the concerns of a larger community. It is reflected in proliferation and diversification of international judicial institutions. 48

The concerted process has been described as ‘judicialisation’. While the term ‘proliferation’ is used to describe the quantitative increase in the number and type of international courts, ‘judicialisation’ captures the idea that there has been a qualitative expansion in the role of international courts in some area of international relations. Thus, it is construed as:

“the process through which a (triadic dispute resolution) mechanism appears, stabilizes and develops authority over the normative structure governing exchange in a given community. The judicialisation of politics is the process by which triadic lawmaking progressively shapes the strategic behavior of politics actors engaged in interactions with one another” 49

Due to such ‘judicialisation’ in some areas of international law, the concept of adjudication seems to have shifted from being a device exclusively designed for promoting international peace to being a means for responding to new governance challenges such as the protection of human rights, the imposition of individual international criminal responsibility and resolution of complex commercial disputes.

Hence, there can be substantial increase in international litigation on environmental issues in courts of general jurisdiction, in courts and tribunals having a specialization in non-environmental issue areas and in specialized environment dispute settlement forums. 50 On the contrary, as a parallel to these developments, growing corpus of international environmental law has witnessed interesting pattern of non-compliance procedures (NCPs) under the “thickening web of multilateral environmental agreements”. 51 Notwithstanding some scholarly concerns as regards fairness and “legitimacy”, 52 NCPs are designed to facilitate greater levels of institutionalized cooperation and coordination among the sovereign states in responding to complex environmental challenges.

As a consequence of the above, the institutionalized IEG process shows two trends: (i) the relevance of courts and tribunals in some regimes signals a preference for a more confrontational, enforcement-oriented method of environmental dispute settlement (ii) the use of NCPs (and other treaty bodies) indicates a more cooperative approaches at work for ensuring compliance with treaty-based legal obligations of the state parties. Can these trends be reconciled?

In many of the recent MEAs, we can find simultaneous (but separate) provisions for the dispute settlement and compliance mechanisms. 53 As seen earlier, it raises question of relationship between the two. Thus, there appears a need to make an appraisal of working of the existing courts and tribunals that deal with environmental issues. Are these existing (non-specialized) ICTs adequately equipped to address the peculiarities of international environmental dispute settlement? Do we need a specialized international environment court (IEC)?

At global level, there has been considerable growth in third party dispute settlement forums. 54 The relevant ICTs invoked for resolution of environmental disputes include International Court of Justice (ICJ), Permanent Court of Arbitration (PCA), International Tribunal on Law of Sea (ITLOS), World Trade Organization (WTO). The competence and jurisdiction of these ICTs vary greatly but all of them could consider environment disputes. In some way, each of these forums falls short of providing an effective option for the settlement of international environmental disputes. Still, the impact of ICT decisions in environmental cases is clearly discernible. As noted by one of the writers:

[T]heir most obvious normative importance has been in articulating directly applicable rules and principles. A secondary impact has been in illustrating potential environmental problems, and identifying (if not necessarily addressing) the range of legal issues that are implicated. The factual scenarios encountered in some cases therefore provide a template against which the efficacy of subsequent legislative developments can be measured. A third important, yet also indirect, influence has been in highlighting gaps in the international legal framework as it applies to environmental matters and thereby catalyzing further developments to address these deficiencies. 55

Thus, ICTs have emerged as important legal actors as, through innovative judicial interpretation, they help in shaping the law-making process itself.

7 Taking Duty to Cooperate Seriously

As aforementioned, the ICTs are increasingly assuming the role to secure the functioning of the “global network”. 56 Their emergence is in part attributable to a recalibration of the ambitions and reach of international judicial institutions. The perceived shift coincides with a more general change in international law from law of co-existence to the law of cooperation. 57 It arises from the need to “proactively working together, serving objectives that cannot be attained by single actor” especially since cooperation works as “the voluntary coordinated action of two or more States which takes place under a legal regime and serves a specific objective”. 58

A general inter-state duty to cooperate in all fields was asserted by the 1970 Friendly Relations Declaration. 59 The duty to cooperate plays an important role in international environmental law. However, Wolfrum has sought to distinguish between a general obligation to cooperate (which has fairly limited support as a norm of customary international law) and the obligation to cooperate in the specific areas of international law (especially as to spaces beyond national jurisdiction, international environmental law, the protection of human rights and international economic law). 60

In a semantics exercise, the Group of Experts convened (in 1995) by Commission on Sustainable Development (CSD) to identify principles of international environmental law sought to distinguish between duty to cooperate “in spirit of global partnership” and a duty to cooperate in a “transboundary context”. 61 The first set of duty can be construed to encompass the relation among states with respect to the ‘global commons’ as well as principles and concepts such as ‘common concern of humankind’, ‘the common heritage of mankind’ and ‘the common but differentiated responsibility and respective capabilities’. In the second set of duty some minimal forms of cooperation required are reflected in principles such as reasonable and equitable use of shared resources, duty of notification and consultation as well as principle of prior informed consent (with states potentially affected by an activity/event having consequences on environment, on obligation to conduct an environment impact assessment).

Here the crux of ‘cooperation’ can comprise an obligation of conduct whose specific manifestation depends upon what could be expected from a state acting in ‘good faith’. The ICJ observed in Nuclear Tests cases:

“One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international cooperation, in particular in an age when this cooperation in many fields is becoming increasingly essential” (emphasis added). 62

In general, this is perceived as an exercise to judge a state’s ‘good faith’ that can be “objectively assessed by international courts and tribunals when reviewing the state’s domestic decision-making processes in accordance with international standards”. 63

As decided cases show, the content of duty has been defined by the ICTs. However, duties of states to cooperate within environmental regimes (such as UNCLOS, International Convention for the Regulation of Whaling (ICRW), Convention on Biological Diversity (CBD) and several other MEAs have become part of specific institutional and procedural mechanisms. This has found reflection in the jurisprudence of the ICTs. It allows them to deal closely with institutional aspects that formerly received less judicial attention.

In an advisory opinion of 07 February 2018, the Inter-American Court of Human Rights (IACHR) has sought to juxtapose a sovereign state’s basic obligations under two areas of International Law –environment and human rights –specifically in the transboudary context. As such it is claimed to be the first ruling ever by an international human rights court that truly examines environmental law as a systemic whole. IACHR sought to reaffirm and extrapolate the ratio of the Trail Smelter Arbitration and observed:

“As regards transboundary harms, a person is under the jurisdiction of the State of origin if there is a causal relationship between the event that occurred in its territory and the affectation of the human rights of persons outside its territory. The exercise of jurisdiction arises when the Stateof origin exercises effective control over the activities carried out that caused the harm and consequent violation of human rights”. 64

It underscored the role and value of new normative benchmarks that can be set by the inter-regional courts too.

The concerns about the evolution of underlying legal obligations through a pronounced duty to cooperate remain real and justified. It is so because the so-called duty to cooperate is highly dependent upon specifics of the relevant regimes. Nevertheless, few of the ICTs are proactive in the application of this obligation. It was applied by the International Tribunal on Law of Sea (ITLOS) in the 2001 Mox Plant case (2001), 65 wherein it declined to issue provisional measures requested by Ireland on the ground that there was insufficient urgency to justify their prescription. This dispute arose between Ireland and UK concerning establishment of a mixed oxide fuel (MOX) plant at the Sella field nuclear processing facility located on the Irish Sea. Ireland strongly objected to the plant on health and environment grounds. It sought provisional measures in ITLOS for the suspension of authorization of the plant pending constitution of an Annex VII tribunal to determine its claims. Interestingly, the tribunal ordered a provisional measure that was not requested and observed that:

[T]hat the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law and that rights arise there from which the Tribunal may consider appropriate to preserve under article 290 of the Convention . . . [E]ach party is required to submit to the Tribunal a report and information on compliance with any provisional measures prescribed. 66

Furthermore, the provisional measure order given by the Tribunal on 03 December 2001 underscored:

“Ireland and the United Kingdom shall cooperate and shall, for this purpose, enter into consultations forthwith in order to:

exchange further information with regard to possible consequences for the Irish Sea arising out of the commissioning of the MOX plant;

The Mox Plant case set a benchmark in understanding broad contours of the duty to cooperaten. In a similar fashion, the Tribunal in Land Reclamation case (2003) 68 between Malaysia and Singapore related to land reclamation activities carried out by Singapore in and adjacent to the Straits of Johor ordered the parties to cooperate. The order directed that the two states:

“Malaysia and Singapore shall cooperate and shall, for this purpose, enter into consultations forthwith in order to:

establish promptly a group of independent experts with the mandate

to conduct a study, on terms of reference to be agreed by Malaysia and Singapore, to determine, within a period not exceeding one year from the date of this Order, the effects of Singapore’s land reclamation and to propose, as appropriate, measures to deal with any adverse effects of such land reclamation;

The ratio of the above-mentioned cases was recently applied by the Tribunal in its advisory opinion concerning the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SFRC). 69

The application of the obligation was further explored by the Annex VII arbitral tribunal constituted under UNCLOS in Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom). 70 It ruled on alleged failures by the UK in consulting and cooperating with Mauritius (obligation to exchange views under Article 283 of UNCLOS) in establishing a marine protected area (MPA) around the Chagos Archipelago. In their scathing joint dissenting and concurring opinion, 71 Judges Wolfrum and Kateka expressed doubt that if the UK had not acted under an ulterior motive in the declaration of MPA and the conduct of UK violated the standard of good faith. Going a step further, the judges saw in the UK’s conduct a similar disregard for rights of Mauritius that had continued from the colonial period.

The issue again came to be reaffirmed in the ICJ Advisory Opinion on Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, delivered on 25 February 2019, as the Court concluded that “the process of decolonization of Mauritius was not lawfully completed when that country acceded to independence” and that “the United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible”. 71

Thus, the duty to cooperate is being extensively used by an overarching dispute settlement mechanism (ITLOS and Annex VII Tribunal) established under the UNCLOS. Cumulatively, it provides a basis to understand the precise meaning and defining the contours of duty to cooperate and its application of duty beyond UNCLOS. Such an occasion arose when the ICJ dealt with the case of Whaling in the Antarctic (Australia v Japan: New Zealand Intervening). 72 In this case Australia had claimed breach of the International Convention for the Regulation of Whaling (ICRW) by a Japanese program that involved the killing of whales in the Antarctic known as “JARPA II”. 73 In its 2014 final decision (by 12 votes to 4), the Court found that the special permits granted by Japan in connection with JARPA II did not fall within a category of scientific whaling permitted under an exception to the ICRW (Article VIII.1).

The striking feature of the decision handed down by the ICJ remained the ‘duty to cooperate’. The Court’s articulation of a duty of states to cooperate comes from the obligation under the ICRW by a state party granting permit for whaling to immediately report it to the International Whaling Commission (IWC) about all such authorizations. Hence, in this context, the obligation came from Japan’s duty to cooperate with the IWC and its Scientific Committee which it failed to perform. The obligation was given a detailed treatment by Judge ad hoc Charlesworth in her separate opinion wherein she has succinctly put legal obligation of duty to cooperate in the environmental context as:

The concept of a duty of co-operation is the foundation of legal regimes dealing (inter alia) with shared resources and with the environment. It derives from the principle that the conservation and management of shared resources and the environment must be based on shared interests, rather than interests of one party”. Moreover, the decision envisaged that “[s]tates may not take a narrow or formalistic approach to the duty of cooperation. It is a substantive duty to consider the views of the IWC and the Scientific Committee and to co-operate with the international scientific community in any research on whales” (emphasis added).74

The Court’s formulation of duty to cooperate has significant implications for the role of states and international organizations in a fragmented legal order. This is especially so in the context of MEAs (in terms of scientific uncertainty and technicality of issues) that increasingly form a basis for relief sought by the State Parties to a treaty.

Interestingly, series of recent judicial opinions and decisions such as the IACHR advisory opinion (07 February 2018) spelling out legal consequences for transboundary environment harm as well as ICJ’s path breaking judgements in Costa Rica v. Nicaragua 74 (02 February 2018) calculating the principles, criteria and quantum of total compensation awarded to Costa Rica (US $ 378,890.59) and Bolivia v. Chile 75 (01 October 2018) on spelling out the difference between “willingness to negotiate” and “obligation to negotiate” on the basis of acquiescence, have opened up new vistas for judicial innovations. Can we decipher meanings and content of a new ‘duty to cooperate’ from the legal views of these ICTs as the new environmental sentinels in cases of transboundary environmental harm?

8 Towards an International Environment Court?

In view of emerging role of ICTs as the new environmental sentinels, there has been concerted scholarly discourse for some time on the need for an International Environment Court (IEC). It appears to be the product of need based response mechanisms, based on functionalism, pursued by globally in various areas of international law. It is reminiscent of a similar quest for adjudication of criminal matters through a specialized International Criminal Court (ICC). 76 Therefore, it seems pertinent to have a glimpse into the rationale for a similar special court for international environmental disputes. The proposal for a new specialized court was made as early as in The Hague Declaration on Environment (1989). 77 The concrete steps for the establishment of International Environment Court (IEC) were in the form of a Draft Convention and a Draft Treaty. In 2002 UNEP Global Judges Symposium 78 also examined the need for an independent credible judicial forum that can help resolve environmental disputes.

Several arguments have been advanced to justify the establishment of an IEC. These arguments include the many pressing environmental problems that humans are facing and the need for specialized adjudicatory bench comprising experts in international environmental law to consider these problems, the need for international organizations to be able to be parties to disputes related to the protection of environment, the need for individuals and groups to have access to environmental justice at the international level and need for dispute settlement procedures that enable the common interest in the environment to be addressed. 79

The plethora of cases dealt with by the ICTs illustrates the difficulties involved in defining an international environmental dispute. These cases can all be defined in terms of environmental law and thus potentially could have been brought before an IEC, if it had existed.

In fact, in the Gabcikovo-Nagymores case, 80 apart from involving international environmental law, the court had to deal with international water law, the law of state succession and law of treaties. Therefore, it was contended that “environmental track record of the ICJ is rather unimpressive, since environmental concerns and well-established international norms with regard to the environment have played almost no role in cases such as the Gabcikovo-Nagymaros Project case”. 81 Similarly, it has been already felt that “ICJ is actually a highly conservative tribunal...avoiding politically contentious cases as it did in France’s nuclear testing”. 82 Thus, there has been genuine concern as regards limits of the ICJ’s role and ability to serve as a global environmental sentinel.

It is in the wake of abovementioned judicial decisions and arbitral awards of the ICTs pertaining to environmental issues and a grim scenario for international environmental adjudication; it makes sense at this critical juncture to bid for scholarly audacity to explore possibility for a specialized IEC as an ‘ideal’ environmental sentinel. Within the limits of this article, it is not possible to provide a detailed legal analysis on the role, justification and prospects for such an IEC. Hopefully, in near future, the author would be able to provide a concrete scholarly blueprint on proposed IEC as an ‘ideal’ in forthcoming works.

9 Conclusion

In the era of institutionalized international environment cooperation, an effort to carve out robust institutions for governance of the environment appears to be need of the hour. The simmering global environmental challenges envisage new patterns of law-making in the field. In fact, it has come a long way from ‘limited/utilitarian concerns’ to ‘common concerns of humankind’. 83 The new perspective has in a way changed the attitude of sovereign states towards the environment protection including smooth adoption of the UN General Assembly driven new threshold of global cooperation in 2030 Sustainable Development Goals (SDGs). 84 It has resulted in the coming together of sovereign states on an institutionalized platform as well as lying down of consensual threshold for their environmental behavior. The growth and proliferation of MEAs has now come to stay as a consensual cooperative method for dealing with the global environmental problematique. Their existence is determined by political will of the contracting states. It has been tailored to needs of sovereign states in order to address a specific environmental challenge at this time of perplexity.

SDGs 2030 will now provide a new fulcrum to the sovereign states as it includes issues such as climate change, forests, biodiversity and desertification. It also reflects strong sense of multilateralism at work to address some of the common concerns of humankind that sovereign states consider necessary to regulate through these instrumentalities wherein lines get blurred between ‘hard’ law and ‘soft’ law. It is in this new context that the ICTs have a role cut out for them to give a strong impetus as the ‘New Sentinels’ for the protection of the global environment.

In the meantime, ICTs have come to play an important role due to rise in their number and specialized treaty-based regimes wherein these judicial institutions are located. The growth in both MEAs and ICTs are significant developments taking place concurrently on the international plane. There was a misplaced notion that ICTs are not suitable mechanisms for implementation of international environmental law as they create work in an adversarial system.

It can, however, be surmised that the new ICTs do attempt to bring about global cooperation through tools and techniques that are sui generis in the environmental field. As corollary to this robust trend, we could expect more innovative approaches adopted by the ICTs in the future to address problem-specific environmental dispute resolution in the twenty-first century. Notwithstanding this important role of ICTs, as institutional actors to resolve environmental disputes, lingering question still remains as regards the need for a specialized IEC (as it was on the need for ICC till advent of the 1998 Rome Statute). Will such an IEC emerge as a robust environmental sentinel in the foreseeable future even as the humankind faces a crisis of survival on the planet earth? An answer to this simmering question lies in the womb of the future.