In Rio – A Proposal for an Environmental Tribunal
From Rapporto dall’Europa 2, June 1992Among the proposals that various non-governmental organisations will take to the conference in Rio, there is a very precise and detailed one, which, while it enjoys wide international support, comes principally from Italy: to establish an “Agency and International Tribunal for the Environment” at the United Nations, as one of its permanent organs. This idea will be put forward within the “Global Forum” by a delegation of the Committee promoting the International Tribunal for the Environment, under the leadership of a magistrate of the Cassation Court, Amedeo Postiglione, for years the leading light behind the initiative.
For the time being, it may seem a futuristic idea. At present the instruments for international legal protection of the environment are still few and of little effect, partly because it is very difficult to constrain sovereign states to respect international law. The International Court of Justice in The Hague knows something of this. It adjudicates - with extreme difficulty and taking account of innumerable diplomatic considerations - in disputes between states, without any guarantee that its judgements will really be respected. They were aware of this in Nicaragua, where, in due time, they received a favourable sentence against the USA’s mining of its ports, without there then being any “international bailiff” who could ensure the sentence was respected.
But there does exist a comparable precedent: the European Court of Human Rights in Strasbourg, which is rightly considered a major step forward in judicial civilization. The states subscribing to the European Convention on Human Rights (of the Council of Europe) accept that their citizens can appeal to an international court in respect of violations of their fundamental rights, and they undertake - even if reluctantly and with many subterfuges - to respect its judgements. This means that the solemn declarations about human rights have some instruments of legal protection.
Now we are at the stage where something similar should occur in the environmental sphere. Increasingly, the right to a safe and healthy environment is being considered a human (and not only human) right. Environmental rights are no longer being seen as a matter of state sovereignty or private property. But the Court in The Hague can only deal with these issues when conflicts between states are involved (e.g. over rights to take environmental samples or over compensation for damage inflicted).
It would be very different if some fundamental rights were finally formalised in a U.N. charter, and some judicial instruments were established (for instance, an International Environmental Agency with controlling and monitoring functions, and an International Environmental Tribunal with judicial functions, accessible to citizens and associations, not only states). These would represent a common pledge to respect and implement the agreed and recognised rights and obligations.
This idea is now no longer an abstract concept, but has been in development for some years, and has gradually crystallised. A Committee for its promotion began to operate from 1987 onwards, supported in various ways by the “Movimento cristiano per la pace” (Christian Movement for peace), some local authorities (among the first, the Council of Reggio Emilia) by the “Anni verdi” (Green Years) of the ACLI1 and, above all, by a whole network of legal experts, academics and magistrates, centred primarily on the Court of Cassation’s Data Analysis Centre. Since then, two major international congresses have been held, at the Accademia dei Lincei (1989) and at the Palazzo Vecchio in Florence (1991) respectively, which have turned the idea of an international convention to safeguard the human right to a safe and healthy environment (with the establishment of an Agency and International Tribunal), into a detailed project.
According to the project approved in Florence in May 1991, it should start with a Charter of Principles signed by the governments belonging to the UNO, relating to a “fundamental right to the environment” and “a binding obligation of solidarity to preserve life on earth for the benefit of present and future generations”, guaranteeing every person rights and duties in this context - including access to environmental information, legal action to protect the environment, and the obligation to use natural resources equitably and sparingly. Specific obligations for states (ranging from forecasts of the impact of measures on the environment to the conservation of ecological habitats) would be laid down in general terms, and on this basis, the two organs of international assurance - the Agency and the Tribunal - would carry out their work.
The project envisages that each should be composed of fifteen members, nominated by the UNO General Assembly. The Tribunal, in particular, should be able to deal with environmental disputes of such dimensions as to be of international relevance (obviously with a filtering of access that would allow the Tribunal itself to choose the cases to address) at the request of individuals, non-governmental organisations, states and international organisations. The implementation of the rulings would fall under the responsibility of the Security Council.
In Rio de Janeiro it will still not be possible simply to decide on the establishment of such an organisation. None of the UNO member states has, up to now, added this objective to the agenda of the international negotiations, although they have the European Parliament resolution (Collins resolution) of 13 February 1992, in which the establishment of an International Environmental Tribunal is explicitly recommended, as an example.
But in Rio de Janeiro, the action to spread this idea, and persuade various organisations which are committed to effective and coordinated protection of the environment, will be able to reach many new potential partners, above all in the southern hemisphere. The patient and persistent lobbying and promotion activity which the Committee associated with Postiglione is undertaking - with the support of the Cassation Court and important city councils, including Venice, Florence, Rome and Milan – should make a qualitative leap forward at the Rio meeting.
According to Postiglione, the establishment of a “Foundation for an International Environmental Tribunal”, supported by various organisations and authorities, and the involvement of famous international personalities (ranging from the Nobel prize-winner, Carlo Rubbia to Lester Brown, the director of the World Watch Institute) should also contribute to this. We will need to see how much attention and support the proposal receives in the various meetings in Rio, and whether, after UNCED, the objective to be reached is among those generally recognised and accepted.
A lot will depend on how it is received and evaluated amongst the non-governmental organisations, but the decisive word will undoubtedly come from governments: only if they start to take account of the proposal at this level, will it really be possible to realise it - perhaps by the end of the century.
From Rapporto dall’Europa 2, June 1992