Access to domestic courts to enhance environmental governance
The 2022 declaration should consider the multiplication of lawsuits brought by individuals, mainly related to climate change, and thus recognize the key role played by domestic courts in the enforcement of international environmental law and in the environmental governance democratization.
1. A global dynamic in favor of environmental justice through domestic courts
Fifty years after the United Nations Conference on the Human Environment was held in Stockholm, we have been witnessing, nearly all around the world, a multiplication of lawsuits brought to domestic courts, related mainly to climate change matters, and conducted against both States and corporations. Widely brought publicized by media and social networks, most of these legal and political disputes incidentally question the enforcement of international environmental agreements covering cross-border environmental issues, such as climate change. They are somehow challenging the international legal order requiring that disputes relating to the enforcement of international environmental agreements signed and ratified by States should primarily fall under the jurisdiction of the International Court of Justice.
NGOs, foundations, indigenous communities, individuals, acting solely or collectively, do not hesitate anymore to ask domestic jurisdiction to force governments to adopt policies in line with their international commitments and in respect of the human right to a healthy environment. The latter’s recognition has been undertaken by the Stockholm and Rio Declarations, then proclaimed by regional agreements and is currently anchored in the constitution of more than 100 States.
Whether their purpose is the recognition of a government’s failure to reduce its GHG emissions in consistence with international treaties, compensation for environmental harm, or a nullity action for breach of a constitutional environmental provision, all these legal actions and proceedings call for environmental justice and reveal the key role likely to be played by domestic courts in the enforcement of international environmental law. In this regard, the decision held on June 24th, 2015 by the Hague District Court, in the case Urgenda Foundation v. The State of the Netherlands seemed to have a ripple effect in other jurisdictions concerning legal proceedings against States themselves.
This current judicial dynamic is no surprise in a context of climate emergency requiring rapid and efficient political and legal responses for current and next generations. The youth is rightly concerned by environmental issues and necessary policies should be carried out by governments to address them. And climate litigation seems to show a certain efficiency in that regard.
2. Domestic courts as complementary judicial mechanisms for the enforcement of international environmental law
Access to domestic courts as an additional means of ensuring compliance with international environmental agreements should be strongly emphasized. It may fill the gap between international environmental commitments, whose compliance by States is crucial for people and private actors, and traditional international dispute mechanisms of which they are deprived.
Current international control mechanisms speak for themselves.
The International Court of Justice has no compulsory jurisdiction. Moreover, it has no jurisdiction to deal with the complaints of individuals. Environmental treaties endow limited powers to monitoring bodies or compliance committees. A good example is given by the Paris agreement on climate change, of December 12, 2015, whose article 15.1 refers to a mechanism consisting of a committee that shall “be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive”.
This weakness has been clearly emphasized by the UN Secretary General’s report published on November 30, 2018, entitled Gaps in international environmental law and environment-related instruments: towards a Global Pact for the Environment. It recalls that “compliance bodies do not render judicial decisions (…) and do not generally permit non-State actors to raise complaints”. The report calls for an improvement of national implementation through enhanced participation of non-State actors in decision-making and implementation, in line with the Rio Declaration of 1992 itself, which promotes effective access by individuals to judicial proceedings, including redress and remedy.
Access to domestic courts for all disputes related to environmental treaties is nothing less than an approach of good sense. It is bound to improve global environmental governance by giving a real effect to the core principle of participation. Efficient environmental governance must be associated to broad and facilitated participation.
The climate change crisis reveals this urgent need for multi-dimensional mechanisms of international environmental law enforcement. Recourse to domestic courts may be considered as another relevant judicial mechanism. Global environmental issues, such as climate change, require a teamwork effort between the international, regional, and internal orders. They should intervene complementarily, to the extent that each judge has a role to play and each legal order presenting strengths likely to remedy the weaknesses of the others.
Many legal disputes relating to the application of international treaties may indeed raise essential questions; legal interest in bringing an action, admissibility of the application, conflicts of jurisdiction, division of powers considering that many cases tend to put into question national environmental policies. But legal cases influence each other, particularly in terms of procedural and material means invoked by applicants. A sentence held by a domestic court will inspire other judges. This dynamic will enable domestic judges to get more expertise in cross-border environmental issues and gradually lead to the adoption by courts of common procedural criteria likely to facilitate the conduct of judicial proceedings.
Beyond the dispute settlement dimension and the potential ability to reorient States’ environmental policies and companies’ economic strategies, domestic courts may foster a better diffusion and understanding of all values and principles linked to international environmental law. This creates a positive double effect for enhanced environmental governance.
3. The 2022 political declaration: an opportunity to encourage access to domestic courts
A process in favor of access to national courts for cross-border environmental litigation is already underway that an upcoming political declaration, even if not legally binding, could support by recognizing that domestic courts may play a significant role in the promotion and enforcement of international environmental agreements.
Considering the causal link between obligations and duties States are supposed to assume under international environmental law and the right to a healthy environment by which individuals are legitimately entitled to benefit from effective jurisdictional guarantees, the 2022 declaration needs to recognize the domestic court as the primary judicial authority to ensure that States comply with their international environmental commitments.
Such a political declaration would support and reinforce the jurisdictional guarantees requirements provided by the article 9 of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, of June 25th, 1998 and the Goal 16 of the 2030 Agenda for sustainable development
Concerning more precisely climate change matters, this declaration would also be on line with the Oslo Principles on Global Climate Change Obligations drafted on March 30th, 2015 by legal and climate experts, which call for fair proceedings adjudicated by independent courts or tribunals holding effective decisions.
In this regard, the 50th anniversary of the Stockholm Conference is a wonderful opportunity. It could promote and implement environmental justice as an essential tool to enforce international environmental law and democratize global governance.
The fundamental right to live in an environment of quality announced fifty years ago by the Stockholm Declaration could be, by this way, celebrated constructively for the benefit of all and an enhanced international environmental governance.