The Case for an International Environmental Court
Co-authered with Judith McDaniel, who teaches law and
politics at the University of Arizona and Union Institute and
University. She is also a Fellow in the OpEdProject.
Photo by Martha Gilliland, climbing Mt. Kilimanjaro
World leaders have begun to ratify the Paris agreement
and it is a good thing. India just recorded an all time high
temperature of 123.8 F. The U.S. and China, which together account for
38% of global carbon dioxide emissions, have announced they will sign
by the end of the year. Fifty-five nations must ratify it for the
agreement to take effect, a likely outcome once the U.S. and China sign.
This is good
news! The Paris agreement is an exciting start to global cooperation on
the health of planet earth. But a big piece is still missing: a way to
enforce it.
In the US, we have a model: the Environmental Protection Agency
(EPA), which was established in December 1970, seven months after the
first Earth Day, in spite of the outcry that the environmental
regulations imposed would cost too much to implement and, thereby,
severely damage the US economy.
Since 1970, the
US has cleaned up its air and waterways, saved species and their
habitats, protected wetlands and coastal zones, and tackled the
hazardous waste buried in various landfills. Motivated by these
regulations, entrepreneurs invented high tech equipment to remove
pollutants, and the US Gross Domestic Product grew by 420% in constant dollars. In short, the EPA has been effective and the predictors of doom were wrong.
We need an
institution similar to the EPA at the planetary level. We have a model
there, too: the International Criminal Court. The ICC handles war crimes
and crimes against humanity, not the environment, but it can be a
model. The ICC was established in 1988 and entered into force on July 1,
2002, after being ratified by 60 nations. The first person convicted by
the ICC was Thomas Lubanga Dyilo from the Democratic Republic of the
Congo. While he no doubt committed horrific crimes himself, he was tried
and convicted for crimes of “leadership,” crimes like recruiting and
conscripting children under the age of 15 and using them to commit war
crimes. Dyilo was sentenced in 2012 and is serving 14 years in a prison
in the DRC. Similarly, an International Court for Environment, while it
might not put heads of state in jail, could impose sanctions.
If we start
now, we can have an international environmental court by the
50thanniversary of the first Earth Day, April 2020. Many will say this
is a pipedream, indicating again that the economic costs will be too
high. Four years before the EPA was established, many were similarly
skeptical. The results speak for themselves.
Culturally, we
are in a very similar moment of social support for such a move. In the
US, pressure for a federal agency to protect and clean up America’s
environment was building throughout the 1960’s, spirited by astronauts’
photos of our strikingly beautiful blue planet hanging in space. These
photos transformed our emotional understanding of our home, as Rachel
Carson’s Silent Spring demonstrated that pesticides, which accumulated
in the food chain, were poisoning it. Television images of a fire on the
Cuyahoga River in Cleveland, thick smog in Pittsburg, and dead, oil
soaked birds and mammals on the beautiful beaches of Santa Barbara also
changed the national discourse and opened the door for leadership. Powerful supporters emerged in Congress. In his State of the Union address in 1970, President Nixon called for a decade of environmental transformation. The EPA was established that December.
Today, images
of glaciers melting, disappearing coastlines, and piles of trash in the
ocean have gone viral. It is common knowledge that extremes in weather patterns,
including floods, droughts and storms are linked to global warming. In
the United States, the first human community is being relocated as their
island home sinks into the sea. 2015 was the hottest year on record, and March 2016
is the eleventh consecutive month in a row that the earth has recorded
its warmest respective month on record. People are understandably
concerned.
The United
Nations has some of the scaffolding for an environmental court now. The
UN Conference on the Environment in Stockholm in 1972 established the
United Nations Environment Programme, which coordinates its
environmental activities and assists developing countries with
environmentally sound policies. But coordinating and assisting, while
helpful, lack the power to protect.
Since 1972, the
UN environmental conferences have resulted in dozens of opinions,
statements of concerns, and conventions, for example, the Vienna
Convention for the Protection of the Ozone Layer. In 1988, The 70th
Plenary of the General Assembly passed a statement of concern noting
that greenhouse gases could produce global warming with disastrous
consequences for mankind.
Opinions,
protocols and statements of concern are useful but are not enough to
protect the planet. The Paris Climate Agreement relies on peer pressure
for enforcement. Countries are mandated to measure and report
activities. Activities are to be made public and verified. No one yet
knows how this will work. An environmental court could solve that.
Proposals for a UN environmental agency with teeth have already emerged. Both the International Bar Association and the Coalition for an Environmental Court have proposed an International Court on the Environment. The World People’s Conference proposed an International Climate Justice Tribunal. A real Environmental Court by Earth Day 2020 is not a pipedream.