It is a great honor to have been invited to participate in this UNEP
sponsored "English-Speaking Caribbean Chief Justices Meeting on
Environmental Law" in the beautiful surroundings of Braco, Trelawny, and I
sincerely hope that my detention yesterday in Georgetown on the vexing matter of
helping to develop a CARICOM Common Fisheries Policy and Regime did not
inconvenience the Meeting too much.
I had a similar honor in being invited to participate as Observer at the Arab
Chief Justices Meeting convened jointly by UNEP and the Supreme Constitutional
Court in Cairo, May 29-31, 2004 - and I must express my sincere gratitude for
the warm hospitality extended particularly by the Hon. Justice Adel Omar Sherif,
Deputy Chief Justice of the Supreme Constitutional Court of Egypt, who is with
us here today.
The Cairo Statement, which was issued at the conclusion of that Meeting, was
a ringing endorse of the Johannesburg principles on the Rule of Law and
Sustainable Development adopted at the UNEP Judges' Symposium in August 2002.
Another conviction expressed by the Arab Judges brings us more specifically to
our topic. The Judges noted that:
"Obstacles to access to environmental justice include the rules of
standing and their interpretation by judicial officers. They called for closer
examination of these and other relevant issues by judiciaries of the Arab
countries with a view to facilitating access to justice in environmental
matters."
Hon. Justices who were present at the April 2001 St. Lucia Meeting of
"Caribbean Judges on Environmental Management", (also organized with
the support of UNEP) may recall that this question of access to the courts was
one of the concerns of my presentation on that occasion. That UNEP has asked
that I return to the topic today does not suggest, I hope, any lack of progress
in the intervening 3 years.
Indeed, rather than merely repeating the pleas of the St. Lucia meeting, and
I understand that much of the relevant cases and concerns were discussed
yesterday, and with an eye to the second half of the topic, I propose to share a
few thoughts with you on the role of the Caribbean Court of Justice (CCJ) in
securing access to environmental justice.
Of course, the topic refers to "existing" mechanisms for the
settlement of environmental disputes, and this does present certain challenges
given that the CCJ is not yet operational. However, the Agreement Establishing
the Court entered into force July 23, 2002 - almost two years now - and those
with the responsibilities for such matters have advised the inauguration of the
Court is likely to be in the reasonably near future.
Before looking at the CCJ from the perspective of dispensing environmental
justice, it may be useful to affirm the basic principle that Caribbean states
have clearly accepted the principle of access to environmental justice. The 1994
Barbados Plan of Action (BPOA) following the SIDS Conference, commits Caribbean
States to the admonition, codified in Principle 10 of the 1992 Rio Declaration,
that governments should provide 'effective access to judicial ... proceedings'
for litigation of environmental issues.
Principle 10 is fully reflected in a number of international instruments to
which we have subscribed, including: World Charter for Nature (Principle 23);
the 1992 Biological Diversity Convention (Article 14); and the 1994 UN Draft
Principles on Human Rights and the Environment.
INTERNATIONAL TRIBUNAL
The CCJ is a unique judicial institution in that it is both an international
tribunal of first instance and a municipal court of last resort. In the exercise
of its original jurisdiction the decisions of the Court will necessarily relate
primarily to interpreting and applying the Treaty arrangements related to the
functioning of the CARICOM Single Market and Economy (CSME). This was after all
the raison-d'etre for the original jurisdiction as conceived in the OCCBA
recommendations of 1972 and reaffirmed in the Report of the West Indian
Commission. The Commission was of the view that, aside from establishing the CCJ
to replace the Judicial Committee of the Privy Council (JCPC) as the municipal
court of last resort, the process of integration was another good reason to do
so:
"Integration in its broadest economic sense - involving a Single
CARICOM Market, monetary union, the movement of capital and labour and goods
and functional co-operation in a multiplicity of fields must have the
underpinning of Community Law. A CARICOM Supreme Court interpreting the Treaty
of Chaguaramas, resolving disputes arising under it, including disputes
between Government parties to the Treaty, declaring and enforcing Community
law… is absolutely essential to the integration process."
In the context of CARICOM being a Community of Sovereign States (often with
the emphasis more on Sovereignty than Community) with independent legal systems,
it is imperative that there be a single authoritative source to interpret and
apply the treaty arrangements. One Commentator takes the point to its logical
conclusion by linking the economic environment of CARICOM as largely a capital
importing region with the need of the foreign investor for a stable, predictable
investment climate and concludes:
"this is where the CCJ is required to play a critical role by
importing certainty, stability, uniformity and predictability on the regional
investment climate."
The tools for the Court to perform its rule of policing the CSME are provided
in Part II (Articles XI - XXIV) of the Agreement Establishing the Court.
These provisions correspond to Articles 211 - 222 of the Revised Treaty
of Charguaramas which, while not yet definitively in force, is being
provisionally applied.
Essentially these provide that:
1. The Court enjoys compulsory and exclusive
jurisdiction to hear and determine disputes concerning the interpretation and
application of the Revised Treaty.
2. National courts seized of an issue whose
resolution involves the interpretation or application of the Treaty should refer
the matter to the CCJ for determination before delivering judgment.
3. The Court has power to prescribe interim
measures where necessary to preserve the rights of either party.
4. Judgments of the Court constitute stare
decisis: decisions are legally binding precedents for the parties to the
proceedings in which they were given.
5. Member States and others to whom a judgment
of the Court applies are obliged to comply with that judgment.
Against this background, it would seem reasonable to conclude that the
Revised Treaty and Court it establishes for resolving disputes are principally
concerned with the establishment and smooth functioning of the CSME rather than
with environmental issues. However, a number of considerations demonstrate that
the functioning of the CSME will be circumscribed by environmental concerns in
the determination of which the Court will play a vital role.
First, the CCJ is expressly requested to apply international law in
the exercise of its original jurisdiction. It is increasingly being accepted
that several rules of international environmental law have risen to the level of
customary rules, possibly rules of jus cogens, or peremptory norms of
public policy, and would therefore be applicable even in the absence of express
provision in the Treaty. The Vienna Convention on the law of Treaties
prohibits parties from derogating from jus cogens in the Treaty
arrangements. In the Gabcikovo-Nagymaros Project Case 1, the International
Court of Justice was concerned with the applicability of sustainable development
to alleged breach of treaty obligations between Hungary and Slovakia. In the
course of its analysis the World Court acknowledged the existence of
environmental norms as part of the general corpus of international law, and in
reconciling the environmental and developmental conflicts of the situation, the
Court directed the parties to consider the principle of sustainable development,
a principle that both Hungry and Slovakia agreed was applicable to the
situation.
Secondly, although the Revised Treaty is by no means a green
document, it does contain several references to environmental principles, which
may come up for adjudication. For example, there is a reference in the preamble
to the Community's determination to pursue agricultural policies, on an
environmentally sound basis. Certain Community Institutions, most conspicuously,
(Council on Trade and Economic Development (COTED) and Council on Human and
Social Development (COHSOD), are obliged to pursue policies that promote
protection of the environment (Articles 15 (2) (h), Article 17 (2) (f). The
provisions in the Revised Treaty on sectoral development are infused with
environmental considerations. For instance, in relation to promotion of
industrial policy, COTED, "shall have regard to the provisions of the
Treaty relating to environmental protection" (Art. 52 (5). Similarly, the
program for tourism development must have the objective, inter alia, of
conserving the natural and cultural resources of the region (Art. 55 (2) (f).
Among the several other references in the Revised Treaty to the requirements of
environmental management: Art. 51 (2) (a), (g); 52 (5); 55 (2) (f), 56 (1) (a),
(f), 57 (2) (b), 58, 60, 61, 65, 135 (1) (d), 140 (1) (c), (3), (5) (b), (c),
Article 141.
Third, it is imperative that the influence of the environmental
content of the Revised Treaty on the CSME be viewed from the perspective of the
general exceptions to the obligation to observance of CSME provisions. Article
226 provides that nothing in the Revised Treaty prevents the adoption or
enforcement by any Member State of measures, among other things:
(b) to protect
human, animal or plant life or health; or
(j) relating to the conservation of
natural resources or the preservation of the environment.
The extent to which
these exceptions contain the ability to place restraint on the Treaty impulse
towards liberalization of trade and the development of a single economic space
ought not to be under-emphasized. It is precisely upon the vaguely worded
exception justifying environmental measures to "protect human, animal or
plant health or life" in Article XX of the GATT and World Trade
Organization (WTO) which was argued in WTO jurisprudence as justifying the right
to restrict trade on environmental grounds.
The Tuna-Dolphin cases2 litigated the
U.S. Marine Mammal Protection Act (MMPA), under which countries seeking to
export yellow-fin tuna into the U.S. had to show that they had a tuna fishing
regulatory program comparable to that of the U.S. and the dolphins taken
incidentally by their tuna fishing boats was no greater than 1.25 times the US
rate. Under Mexico's complaint to the GATT, a Dispute Panel found that the US
embargo violated GATT Article XI (1), which forbids measures prohibiting or
restricting imports or exports, and that the measures in the Act were not
necessary to the protection of animal life within the reservation of Article XX
(b).
The Tuna-Dolphin I Panel concluded that the natural resources and living
things protected under these provisions were only those within the territorial
jurisdiction of the country concerned. This decision was criticised by many
environmentalists for its narrow interpretation of Article XX.
The Tuna-Dolphin
II decision involved the legality of a secondary embargo of tuna products from
countries that processed tuna caught by Mexico and the offending countries. Here
again the GATT Panel concluded that GATT Article XX could not justify the US
tuna import ban. However, the Tuna-Dolphin II panel distinguished between
extra-territorial and extra-jurisdictional application of Article XX, holding
that governments may enforce an Article XX (g) restriction extra-territorially
only against their own nationals and vessels, but not extra-jurisdictionally.
In
the Reformulated Gasoline case both the Panel and the Appellate Body ruled that
trade restrictive measures taken by the US under its 1990 Clean Air Act. Under
the new rule, could not be justified under Article XX but the reasons given
differed. The Panel found that the regulation must be primarily aimed at the
conservation of exhaustible natural resource in order to be upheld under Article
XX. The Appellate Body, on the contrary, recognised the action was primarily
aimed at protecting the environment and should be viewed as such for Article XX
(g) purposes. But it ruled that the regulation of the U.S. discriminated between
domestic and foreign producers. However, in the Shrimp-Turtle case4 , the
decisions between the Panel and Body were much different.
In the Shrimp-Turtle
case the US regulations could not be justified under the Article XX exception
but only because the Appellate Body found that implementation of the regulations
was discriminatory; the parent Act was not invalidated. Indeed the Body spent a
full paragraph to emphasize a need to protection for sea turtle:
"We have
not decided that the protection and preservation of the environment is of no
significance to the Members of the WTO. Clearly, it is. We have not decided that
the sovereign nations that are Members of the WTO cannot adopt effective
measures to protect endangered species, such as sea turtles. Clearly, they can
and should. And we have not decided that sovereign states should not act
together bilaterally, plurilaterally or multilaterally, either within the WTO or
in other international organisations, to protect endangered species or to
otherwise protect the environment. Clearly, they should and do."
STANDING
As to the critical question of standing to access environmental justice in
the CCJ, scrutiny of the Revised Treaty/Agreement Establishing the Court,
suggest rather traditional understandings: Under Article 216 of the Revised
Treaty, Member States agree to recognize as compulsory the original jurisdiction
of Court referred in Article 211. However, Article 211 would appear to restrict
that jurisdiction to four rather narrow categories:
(1) Disputes between the
member states parties to the Agreement
The narrow wording of this provision
appears to cover only litigation between parties in dispute, but it bears noting
that the actual words used are "parties to the Agreement" and does not
therefore expressly rule out an actio popularis.
(2) Disputes between Member
States and Community.
(3) Referrals from national courts of Member States
(mentioned earlier)
(4) Applications by persons in accordance with Article 222.
Article 222 is of particular interest. Traditionally, only sovereign states had
the legal competence to be parties in contentious matters before international
tribunals. This remains the position in the case of the International Court of
Justice, where "Only States may be parties in cases before the Court."
Therefore, at first blush Article 222 appears to be a revolutionary provision in
opening up the possibility of private individuals having access to the Court.
However, on closer examination the Article appears to be restricted by so many
limitations as to be of very limited utility as a means of ensuring
environmental justice. For example:-
(1) Nationals of a Contracting Party
require the special leave of the Court, appear as parties in proceedings before
the Court; and
(2) The Court must determined that the Treaty intended that a
right conferred by or under the Treaty on a Contracting party should inure to
the benefit of such persons directly; and
(3) The persons concerned must
establish that they are prejudiced in respect of the enjoyment of the Treaty
benefits; and
(4) The Contracting Party entitled to espouse the claim must
either have:-
(a) omitted or declined to espouse the claim, or
(b) expressly
agreed that the persons concerned may espouse the claim of the Contracting Party
so entitled; and
(5) The Court has found that the interest of justice requires
that the persons be allowed to espouse the claim.
Municipal Court of last resort
In its role as the municipal court of last resort, the CCJ has jurisdiction
over appeals from the courts below either as a matter of right, and with the
leave of those courts in certain cases, namely in questions involving general
public interest or such other cases as prescribed by the law of the Contracting
Party. Article XXV of the Agreement Establishing the Caribbean Court of Justice
specifies several cases in which the entitlement of litigants to appeal to the
CCJ as a matter of right may well call for consideration of environmental
issues. For present purposes, it may be useful to identify three contexts in
which the Court may be asked to make rulings that will decide on the scope of
access to environmental litigation.
The first context concerns the trend towards
liberal rules of standing, or allowing intervention by NGOs as developed by
Supreme Courts.
Until recently, the courts adopted a restrictive interpretation
to the standing requirement. A number of cases decided that environmental
pressure groups or public spirited individuals did not satisfy the Boyce v.
Paddington Borough Council test so as to obtain review. In Rose Theatre Trust
(1990), an interest group specifically formed to defend the remains of an
Elizabethan theatre, was refused standing on the basis that, as individuals,
none of the group had any special interest in the matter over and beyond the
general interest of the public. This case was faithfully followed in Caribbean
litigation. Reference may be made to two famous cases on this point. In Spencer
v. Canzone Del Mare (Spencer No. 1) the applicant was a Member of Parliament of
Antigua and Barbuda and the (then) Leader of the Opposition. He alleged that the
Acting Chief Town Planner, acting on behalf of the Land Development Control
Authority, had ordered the defendants to halt all development activities at its
Coconut Hall site because the work there was environmentally unfriendly and
required an environmental impact assessment, which had not been done. It was
further alleged that the Prime Minister had improperly written to the developer
allowing the continuation of construction. The application for declaratory
orders and an injunction was dismissed on the ground that the plaintiff lacked
standing because he had not shown 'sufficient interest' in the matter to be
litigated.
Spencer v. Attorney-General of Antigua and Barbuda et al (Spencer No. 2), decided in April 1998, rejected an application from Mr. Spencer for a
declaration that the agreement between the Government and a private developer
for a tourist development on Guiana Island was unconstitutional. One ground
advanced by the applicant was that the proposed development was harmful to the
ecology and was contrary to common law principles that protect the environment.
At first instance, Saunders, J. found that the applicant had standing but
rejected his arguments on the merits. This decision on standing was overturned
on appeal. In the view of the Appellate Court, the applicant had failed the
constitutional requirement that he should have a "relevant interest"
in order to be granted standing.
Whether the Boyce v. Paddington Borough Council
test, developed in the context of a private action for public nuisance, is
appropriate to determine standing for judicial review of environmental
decision-making seems debatable. It seems entirely reasonable that in nuisance,
where the plaintiff is attempting to recover compensation or to halt damage to
an interest in land, that special loss should be the measure of compensation and
of whether an injunction is appropriate. But in situations where the applicant
sues to ensure sound environmental management, the paramount concern is the
vindication of the public interest. It is instructive to note that significant
relaxation of the standing requirement has occurred in some English decisions
(R. v. Pollution Inspectorate, ex p. Greenpeace (No. 2) (1994)), and (R. v.
Secretary of State for Foreign Affairs, ex p World Development Movement (1995)).
The 2004 Privy Council decision in The Belize Alliance of Conservation
Non-Governmental Organizations v The Department of the Environment recognizing
the right of a group of environmental organizations in Belize to challenge the
building of the Chalillo Dam, appears to adopt this more recent, liberal
approach. There remains, of course, the important question of what will be the
status of this decision with the CCJ. The practice of states de-linking from the
JCPC appears to be that both past and future decisions of that body are treated
as persuasive and not binding. In this regard the most apt dictum is provided by
the Court of Appeal of Guyana in Persaud v Plantation Versailles (1971) WIR 107
at 132, where Crane, J.A. said:
"It is my considered opinion that
consequent on the removal of the Privy Council as our final court of appeal, the
doctrine of stare decisis in so far as that court is concerned is a dead letter
with us: its former judgments are now only of persuasive authority. Of course,
we shall regard them as we have always done with the highest esteem, we shall
continue to cite, apply and follow them and, when we do so, they will thereafter
speak with our authority: but henceforth it will be our privilege, it not our
duty, to decline to follow them if we think fit to do so. It seems to me that it
is only the natural consequence of its abolition as the final Court of Appeal
for Guyana that the Privy Council should lose its place as a binding force in
the hierarch of authority. Ipso jure, its pronouncements have ceased to be
authoritative."
In the context of the Caribbean adoption of the
international admonitions expressed in Principle 10 of the Rio Declaration,
alluded to earlier, it is to be hoped that this perspective of the JCPC in
relation to grant of access will be followed.
A second context in which issues
of access may arise concerns the interpretation of legislation granting the
right to individuals to bring actions in the public interest.
Hopefully, the CCJ
will reconsider treatment given in Scotland District Association Inc. v.
Attorney-General to Sect. 6 (2) of the Administration of Justice Act 1980. The
Judge in that case, King J., gave a rather limited reading to the ambit of
section 6 - which goes beyond ordinary standing based on special interest - and
makes allowance for suits to be brought in the public interest.
A third context
might relate to matters which make their way up to the CCJ from actions started
in specialist courts in the Region.
For example in Trinidad and Tobago, there
are several aspects of the scope of the private party action not clearly spelt
in the Environmental Management Act 2000: there are questions concerning the
availability of the procedure of judicial review of actions of Environmental
Management Authority; and the availability of the remedy of injunction; even the
constitutionality of the Environmental Commission itself. It is likely that
decisions of the Environmental Commission may be appealed from Commission to the
Court of Appeal and then up to the CCJ in the normal way (certainly there is
nothing in the Environmental Management Act which suggests that appeals
terminate in Court of Appeal, as compared with the Trinidad and Tobago
legislation on the Industrial Court).
Conclusion
The CCJ will be at the centre of deciding upon effectiveness of
access to judicial forum for environmental litigation. It is clear that in
exercise of both original and appellate jurisdictions the Court will set the
stage for determining how far Caribbean states can be said to be in conformity
with international commitments on this topic. It is to be hoped that by the time
we meet again in a forum such as this, there will be some decided cases from the
Court that will indicate how it proposes to exercise its stewardship of
environmental litigation.
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