Chamber for Environmental Matters: International Court of Justice (ICJ)
- Environmental disputes — Chambers
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
1 In principle, questions and cases brought before the International Court of Justice (‘ICJ’ or ‘Court’) are decided by the full Court (Art 25 ICJ Statute). The Statute of the ICJ (‘ICJ Statute’ or ‘Statute’) provides for different types of chambers (International Courts and Tribunals, Chambers). This includes the Chamber of Summary Procedure (Art 29 ICJ Statute), the so-called ad hoc Chambers (Art 26 (2) ICJ Statute), and Chambers ‘for dealing with particular categories of cases’ (Art 26 (1) ICJ Statute). Under the latter provision, the ICJ established the Chamber for Environmental Matters (‘Chamber’ or ‘Environmental Chamber’) in 1993. The Chamber was never seized in thirteen years of existence, and was eventually dissolved in 2006.
B. Legal Framework
1. A Legacy from the Permanent Court of International Justice
2 In addition to the plenary Court, the Statute of the Permanent Court of International Justice (PCIJ) (‘PCIJ Statute’) provided for two Chambers, whose jurisdiction was defined ratione materiae. One of them was to hear labour cases (Art 26 PCIJ Statute), while the other would deal with cases relating to transit and communications (Art 27 PCIJ Statute). Given the substances of these questions, Articles 26 and 27 PCIJ Statute also contemplated assistance by technical assessors. Even though dedicated bodies may be best placed to decide on such technical issues, none of these chambers was ever seized.
2. Article 26 (1) ICJ Statute
3 The ICJ is the continuation of the PCIJ, and the drafters of the ICJ Statute drew lessons from its predecessor. The unsuccessful experience of technical chambers at the PCIJ certainly acted as a deterrent to the institution of similar formations in the new Court. The ICJ Statute does not pre-establish chambers for particular categories of cases, and Article 26 (1) ICJ Statute provides for an amended version of the chambers:
[t]he Court may from time to time form one or more chambers, composed of three or more judges as the Court may determine, for dealing with particular categories of cases; for example, labour cases and cases relating to transit and communications.
4 The possibility of forming such chambers is left to the discretion of the Court, as emphasized by the use of the word ‘may’. Regarding the exercise of this discretion, Article 16 (1) Rules of the Court of the ICJ (‘ICJ Rules’) requires that the Court determines ‘the particular category of cases for which each Chamber is formed, the number of its members, the period for which they will serve, and the date at which they will enter upon their duties’.
5 Regarding temporal aspects, chambers under Article 26 (1) ICJ Statute may be formed ‘from time to time’—whereas ad hoc chambers may be formed ‘at any time’. Despite different wordings, both provisions appear to be equally permissive, and no temporal restriction can be inferred from this article. Interestingly, both translate into ‘à toute époque’ in the French version of the Statute. The same liberality arguably prevails as to the number of chambers, although the Court has not challenged the limits of this discretion so far. Under Article 26 (1), the number of judges is also determined by the Court, with a minimum of three. It has been conjectured that ‘the composition of any chamber may not exceed seven, since nine judges constitute the quorum of the full Court’ (Ostrihansky, 1988, 34).
6 Likewise, the Court is to determine the ‘categories of cases’ dealt with by these chambers. The chambers cannot be of general jurisdiction: categories must be ‘particular’. Article 26 (1) ICJ Statute maintains a reference to ‘labour cases’ and ‘cases relating to transit and communications’, as mere examples. These examples suggest that the ‘particular categories of cases’ are to be defined ratione materiae. The establishment of an Environmental Chamber coincides with this interpretation.
C. Establishment of the Chamber for Environmental Matters
7 Following its adoption, Article 26 (1) ICJ Statute remained a dead letter for decades. The Court made use of this provision for the first time in 1993; it reported on the establishment of a Chamber under Article 26 (1) in the following terms:
[i]n view of the developments in the field of environmental law and protection which have taken place in the last few years, and considering that it should be prepared to the fullest possible extent to deal with any environmental case falling within its jurisdiction, the Court has now deemed it appropriate to establish a seven-member Chamber for Environmental Matters composed as follows (International Court of Justice Annual Report 1992–1993 (‘ICJ Annual Report’), 1993, 17).
1. Category of Cases
8 The jurisdiction of the Chamber would broadly cover ‘any environmental case’, with no clear definition or delineation. Although pending cases were presumably not affected by the creation of the Chamber, the Court mentioned two of them for their environmental implications, ‘namely those concerning Certain Phosphate Lands in Nauru (Nauru v Australia) and the Gabčíkovo-Nagymaros Project (Hungary/Slovakia)’ (Press Release 93/20). It is understood that the ‘developments’ of environmental law implicitly include the Rio Conventions adopted in 1992. The United Nations Convention on the Law of the Sea may also have been considered. President Robert Jennings pointed out that ‘there is no legal question or problem concerning the environment over which the ICJ does not have full jurisdiction and competence ratione materiae’ (ICJ Annual Report 1991–1992, 1992, 215). Therefore, the Court may have felt no need to set specific restrictions on the jurisdiction of the Environmental Chamber.
9 The Court remained silent as to whether environmental cases involving other questions of international law may still be submitted to the Chamber. This question has remained unresolved, while two such cases have been decided by the plenary bench (Gabčíkovo-Nagymaros Project, Hungary/Slovakia, 1997; Pulp Mills, Argentina v Uruguay, 2010). In a similar vein, there have been discussions about whether the Chamber, under Article 26 (1) ICJ Statute, was to deal specifically with ‘highly technical cases’ (Palchetti, 2012, 491), or rather with ‘minor cases’ (Oda, 1993, 60), or with both. The procedure before the Chamber does not significantly differ from that of the Court (Art 90 ICJ Rules); it is possibly shorter (Art 92 ICJ Rules), but not necessarily (Art 101 ICJ Rules). The degree of complexity or specificity of cases was apparently not decisive in the establishment of the Environmental Chamber.
2. Composition of the Chamber
10 The Environmental Chamber was composed of seven judges, elected ‘from among the Members of the Court’ (Art 16 (2) ICJ Rules). The election took place by secret ballot (Art 18 ICJ Rules). Provisions on ad hoc judges (Art 31 ICJ Statute) and assessors (Art 30 (2) ICJ Statute) may have applied, had a case been filed with the Chamber (Ad hoc judge; Assessor: International Court of Justice (ICJ)). The selection of sitting judges is a crucial step: it has to ensure the legitimacy of their decisions vis-à-vis the parties, and to remain in line with the Court itself.
11 For the purpose of the election, account is taken of ‘any special knowledge, expertise or previous experience’ they may have—an innovation introduced by the 1972 revision of the ICJ Rules (Art 16 (2) ICJ Rules). The Court proved faithful to this provision in appointing the first Chamber (Valencia-Ospina, 1996, note 57 at 522). In addition to the individual qualifications of judges, international courts and tribunals—and chambers thereof—should also reflect the diversity of Member States (Pillepich, 1987, 45). Although Article 9 ICJ Statute does not apply to chambers, the five Regional Groups of the United Nations were constantly represented within the Environmental Chamber. Over the 1993–2006 period, the Eastern European Group and the Latin American and Caribbean Group occupied one seat each, while the other five seats of the Chamber were split between the African Group, the Asia–Pacific Group, and the Western European and Others Group.
12 The creation of a Court chamber, alongside the plenary body, must also not threaten the unity and consistency of the case law. The composition of chambers should arguably be representative of the full bench, and their decisions should reflect those of the Court. Along these lines, the President and the Vice-President are members ex officio of the Chamber of Summary Procedure (Art 15 ICJ Rules). While the chambers established under Article 26 (1) are subject to no similar provision, it is significant that the President and the Vice-President were systematically elected to the Environmental Chamber. The resulting Chamber compares to a ‘small plenum’ at the European Court of Justice (Guillaume, 2003, 82–3; see also Chambers: Court of Justice of the European Union (CJEU)). When the membership of a Chamber includes the President of the Court, Article 18 (2) ICJ Rules provides that he or she is to preside over the Chamber ex officio. Therefore, the Environmental Chamber never had to elect a President.
3. Term of Office and Renewal of the Members
13 The Court did not communicate much on the pre-electoral period and on the voting process, but some facts can be inferred from the outcome of the votes. The Chamber was originally formed for six months in August 1993 (ICJ Annual Report 1992–1993, 1993, 17). The situation of the Chamber during these first six months of existence is somewhat unclear. Between August 1993 and February 1994, Judge Bedjaoui was not yet the President in office, and the Chamber seemingly had no President at that time. In February 1994, when the election of judges took place, the initial members of the Chamber were re-elected for one year (ICJ Annual Report 1993–1994, 1994, 18). Judge Bedjaoui became President of the Court, and President of the Chamber. In 1995, the term of office of the members of the Chamber was extended again until February 1997 (ICJ Annual Report 1995–1996, 1996, 17). It took until 2000 (3rd term) for the Court to explicitly mention the three-year term of duty of the members in its report (ICJ Annual Report 1999–2000, 2000, 20). Within this framework, elections to the Chamber would coincide with the triennial elections of the members of the Court. In 2001, after Judge Bedjaoui resigned from the ICJ, Judge Elaraby joined the Chamber for the remainder of the term of office. In 2003, the Chamber was renewed for three years (ICJ Annual Report 2002–2003, 2003, 23).
14 The composition of the Chamber also shows that members were eligible for re-election, as long as they were members of the Court. Between 1993 and 2006, several members were re-elected to the Chamber. For example, Judge Ranjeva was a member of the Chamber throughout its existence. Most others left the Chamber upon their departure from the ICJ, and/or when the Chamber was terminated. Among sixteen former members, only three judges have left the Chamber but have remained members of the Court: Judge Fleischhauer left the Chamber in 2000, and Judges Elaraby and Al-Kasawneh in 2003.
4. Procedure before the Chamber
15 The Court has full competence to decide on the establishment of an Environmental Chamber. However, the submission of a case to the Chamber, rather than to the full Court, is a decision for the disputants (Art 26 (3) ICJ Statute). The Environmental Chamber has jurisdiction upon request by the parties. In principle, the request cannot occur after the institution of the proceedings (Art 91 (1) ICJ Rules).
16 Unless otherwise provided, the procedure before chambers is similar to that of the full Court (Art 90 ICJ Rules). As an exception to regular Court proceedings, Chamber procedure involves a single pleading by each side, unless otherwise agreed. Parties may also dispense with the hearing (Arts 92 and 101 ICJ Rules). In practice, these provisions do not prevent extensive proceedings. The Gulf of Maine Case, heard by an ad hoc Chamber, is an example (Gulf of Maine, Canada v United States, 1984; see also Oda, 1993, 60). More generally, Article 101 ICJ Rules gives the parties some latitude to adapt procedural details before the chambers. Chamber proceedings supposedly result in decisions, which are ‘considered as rendered by the Court’ (Art 27 ICJ Statute). When necessary, chambers are also competent to decide on requests for revision or interpretation of their own decisions (Art 100 ICJ Rules).
5. Dissolution of the Chamber
17 The fourth three-year term of the Environmental Chamber expired in 2006. The Court noted that no case had been submitted to the Chamber in thirteen years of existence, and therefore decided not to hold elections for the renewal of the Chamber. The Court made no explicit mention of a dissolution, but it left no doubt that the Chamber was no longer available (ICJ Annual Report 2005–2006, 2006, 28–9). Article 16 (3) ICJ Rules requires no formality for dissolution; the smooth discontinuance of the Chamber reflects its undisturbed existence. The President of the Court, Judge Rosalyn Higgins, emphasized that the standing Environmental Chamber may suitably be replaced by ad hoc chambers, ‘should Parties in future cases request a chamber for a dispute involving environmental law’ (ICJ Annual Report 2006–2007, 2007, 307). The possibility to have environmental cases heard by ad hoc chambers or by the full Court are not only suitable alternatives to the Environmental Chamber: they may be blamed for its lack of success.
D. Assessment of the Chamber
18 The Environmental Chamber was never seized, and there is an obvious temptation to declare it a complete failure. However, the fact that the Chamber has remained unused does not mean it failed. A proper assessment of the Chamber shall carefully consider the reasons for its establishment and for its dissolution.
1. A Specialized Chamber for Better Justice
19 The 1980s witnessed growing concern about the environment and the emergence of environmental issues as a major challenge to public authorities. This situation was reflected in the development of international environmental law as a new field of international law (see Environment, International Protection). As such, the increasing diversity and complexity of international law would require new specialists (Guillaume, 2003, 76). Following the adoption of the Rio Conventions in 1992, it was easy to foresee a surge in international environmental disputes, the resolution of which would supposedly involve the ICJ (Agenda 21, Chapter 39.10). Taking into account the peculiarities of environmental issues, any diligent and dedicated jurisdictional body may deem it appropriate to provide itself with a specialized organ (Palchetti, 2012, 490). When the Environmental Chamber was established, the Court expressed the need to ‘be prepared to the fullest possible extent’ to decide on such cases (ICJ Annual Report 1992–1993, 1993, 17). The declared objective was to render justice and to meet the States’ expectations. The Chamber was established immediately after, and in consideration of the filing of the Gabčíkovo-Nagymaros case (Press Release 93/20).
2. A Specialized Chamber as a Safeguard of Jurisdiction
20 The ICJ also had to take a wider perspective. The decision to create the Environmental Chamber did not happen in a vacuum: it arose in response to the developments of international law, in line with a specific vision of environmental protection and of the role of the Court. At that time, the view was expressed that ‘there was no proper machinery for settlement of environmental disputes’ (Singh, 1989, 165). A special chamber was by no means the only option for dealing with environmental issues (Environmental Dispute Settlement). Some suggested that a new, distinct environmental tribunal might be an adequate answer (International Environmental Court). The ICJ did not share that view, and it was determined to retain jurisdiction over environmental disputes and to reaffirm its role as the principal judicial organ of the United Nations. The Court had to be protective of its own jurisdiction (Ranjeva, 1994, 434–37).
21 The establishment of the Environmental Chamber was a dual response to this concern. On the one hand, ‘the ICJ may have reassured States that it is environmentally-minded’ (Fitzmaurice, 1997, 407). The Court was to assert its authority, expertise, and legitimacy as a relevant forum for the adjudication of environmental disputes. The establishment of the Chamber was a means ‘to emphasize the role of the Court in this field’, in the words of President Singh (1989, 325). It was hoped that the newly created Chamber would ‘provide the catalyst for states to turn to the Court to reach a settlement of their environmental disputes’ (Valencia-Ospina, 1996, 527). On the other hand, the creation of an Environmental Chamber was expected to render alternative proposals unnecessary and undesirable. The Chamber did not target the plenary Court, but any other court or tribunal, whether actual or potential. Calls for an international environmental tribunal may have been instrumental in the establishment of the Environmental Chamber (Oda, 1993, 54; Palchetti, 2012, 491). In that sense, it has been suggested that the objective was to attract cases not only to the Chamber itself, but above all to the Court (Karagiannis, 2003, 39).
3. Environmental Law Remains Within International Law
22 Another question is why it was so important for the Court to deal with environmental cases. The development of a new, special field of international law may have justified the creation of a new, special international tribunal. Specialized judicial bodies are supposed to take due account of the specificities of such particular issues. The Court took a different view, and this was a matter of principle, rather than an act of self-promotion. Generally speaking, the late twentieth century witnessed a fierce debate about the alleged fragmentation of international law. The proliferation of international courts and tribunals raised serious concern about ‘the great danger that international law will itself become fragmented’ (Jennings, 1998, 60; see also Stephens, 2006, 230). International environmental law was not regarded as a special field of international law. Quite the contrary: the Court’s commitment to include environmental disputes within its general jurisdiction was a commitment to include environmental law within general international law. It was feared that a special jurisdictional body may have marginalized environmental disputes, and environmental law itself.
23 In 1992, ICJ President Robert Jennings delivered an insightful and visionary statement on the role of international law and litigation in environmental issues. The main idea was that environmental law is part and parcel of international law. On the one hand, he made it clear that environmental issues cannot be solved in isolation: ‘it is not possible to seek solutions only in terms of the environment’. On the other hand, Judge Robert Jennings argued that environmental issues must belong to the wider sphere of international law: ‘the core legal system for these matters has to be public international law’, and ‘the necessary legal syllabus is no specialist affair at all’. Therefore, environmental disputes would necessarily fall within the jurisdiction of the ICJ (ICJ Annual Report 1991–1992, 1992, 212–15). In the same vein, Judge Ranjeva found that fundamental principles of customary international law were relevant to environmental issues and had resulted in valuable developments in the Court jurisprudence (Ranjeva, 1994, 438; see also Valencia-Ospina, 1996, 523). Alternative judicial bodies would not only divert environmental cases from the docket of the court, but also impede the development and implementation of international environmental law.
4. Rise and Fall of the Chamber
24 The reasoning is clear about the necessity to keep environmental law as part of general international law, but this is not an argument for the Environmental Chamber. In fact, President Robert Jennings has not shown great enthusiasm about this project. In his own words, ‘there is also no reason why an environmental dispute should not be submitted, like other disputes, to an ad hoc chamber of the Court’, or to the full Court (ICJ Annual Report 1991–1992, 1992, 217). This is exactly what happened, and the Chamber was never seized. There was indeed no reason for States to prefer the Chamber to the full Court. Disputants would presumably prefer to have their dispute heard by the full Court, rather than by a small number of its members (Oda, 1993, 54). It is even doubtful whether the membership of the Court, limited to fifteen judges, may be suitable for the institution of chambers (Pillepich, 1987, 60). Apart from that, the procedure remained substantially the same; ‘the parties could not choose the judges, and the judges would not necessarily be experts’ (Environmental Dispute Settlement). Some States may also have feared a proactive approach to environmental issues. Compared to the full Court, the Environmental Chamber did not represent a significant added value (Palchetti, 2012, 493; Karagiannis, 2003, 39).
25 Should they prefer a smaller bench, disputants had good reasons to opt for an ad hoc chamber, rather than for the preconstituted Environmental Chamber. In addition to the provisions on ad hoc judges (Art 31 ICJ Statute), the establishment of an ad hoc chamber provides an opportunity for the parties to influence its composition. Disputants are to approve the number of judges composing the chamber. Before the Court elects the judges, the President ‘shall ascertain [the parties’] views regarding the composition of the Chamber, and shall report to the Court accordingly’ (Art 17 ICJ Rules). While some disputants regarded ad hoc chambers as a sound alternative to arbitration, the latter provision raised criticism from among commentators and judges (Schwebel 1987; Oda 1988). For the rest, procedural rules applicable to chambers under Articles 26 (1) and 26 (2) ICJ Statute are quite similar and flexible.
26 On the other hand, some views on fragmentation may have evolved. Judge Rosalyn Higgins soon expressed the view that the ‘decentralization’ of certain fields of international law was ‘not a cause of regret’ (2001, 122). In May 2006, Argentina lodged a claim against Uruguay regarding pulp mills on the River Uruguay. A few months later, then-President Rosalyn Higgins mentioned the dissolution of the Chamber before the General Assembly of the United Nations as follows:
[c]ases such as the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) and Pulp Mills on the River Uruguay (Argentina v. Uruguay) have been submitted to the plenary Bench. A survey of State practice suggests that States prefer environmental law not to be compartmentalized, but to find its place within international law as a whole. Indeed, environmental law has now become an important part of what we may term the mainstream of international law (ICJ Annual Report 2006–2007, 2007, 299).
The two aforementioned cases reflect the trust States have in the Court—if not in the Chamber. It also appears that the inclusion of environmental law within general international law, advocated by the late Robert Jennings in 1992, has come to be praised by the States themselves. Whatever role the Chamber may have played in this process, this was certainly its greatest achievement.
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