Last month the International Criminal Court (ICC) shocked the world when it announced it would start to consider crimes against the environment as crimes against humanity. Activists and victims of large-scale environmental destruction see much to celebrate in the ICC decision. And though the environment can’t speak for itself, signs of deterioration everywhere clearly communicate that our earth’s land, air and water can use all the friends they can get.
But before everyone—from earth lovers to those who have seen their lands and their livelihoods disrupted—celebrates, we may want to wait. The devil behind this good news may lie in the details.
The shift in the ICC mirrors a broader trend that has been emerging everywhere: the advent of green courts. Supreme courts in many countries have taken seriously their citizens’ right to a healthy environment. The experiences of national courts offer some important lessons for the ICC and its future claimants in environmental cases.
Environmentally active judges
Witnessing the ongoing failure of state agencies has prompted judges to become active stewards of environmental rights. For example, the Supreme Court in the Philippines stepped in to remedy the persistent pollution of the Manila Bay at the behest of families seeking damages. The same thing has been happening in India, with attempts to clean up the Ganges River, and in Argentina, which infamously hosts one of the most polluted watersheds on earth.
In 2006 and 2008 Argentina’s Supreme Court issued landmark rulings on behalf of 14 neighbors from the Riachuelo River basin in Buenos Aires who had complained of severe health damages from living among pharmaceutical, petrochemical and other sources of unchecked industrial and domestic pollution. For close to 200 years executive and congressional leaders proved unable to deal with these sources of pollution that affect over five million people living in the heart of one of the world’s largest cities. The Argentine Supreme Court agreed to hear the case and took the lead in attempting to deliver better environmental governance. It created a new water authority, mandated the creation of a new environmental rehabilitation plan—setting precise timelines, monitoring indicators and sanctions—and established a collaborative body of watchdog and advisor NGOs that would keep the Court abreast of implementation.
This kind of active court, which could take charge in protecting the environment and the populations that were most affected by its devastation, was received with a triumphant cheer. National and international press covered the news, academic articles and case law reviews analyzed the potential of this landmark ruling to turn the tide for environmental protections.
Ten years later, though, the Riachuelo remains polluted. To make matters worse, the damages sought against the polluting industries were not awarded, and compensation for health damages were denied. There has been a continuing redrawing of plans, timelines and targets (the most recent requested by the Supreme Court last month).
The Argentine Court has become embroiled in the messy, political process of policy-making. The same has happened in other once-celebrated cases. In the Philippines and India, the Supreme Courts have become bogged down by their environmental stewardship.
The strategy of resorting to courts as a remedy to unresponsive politicians poses some clear risks. One is the lack of responsiveness and accountability of the courts. When elected representatives fail to deliver on many of their environmental promises, citizens always retain one last decisive resource: they can vote their politicians out of office and try again with new ones. This is the most basic tool of citizens of liberal democracies, and of course it relies heavily on active and vigilant journalism informing the electorate. A parallel may be drawn to consumers in a market who can vote with their dollars and reward good businesses or vote with their feet and abandon poor services. There are no such provisions to hold judges accountable.
By design, supreme court judges always have the last word. This is desirable when courts stay within their role to adjudicate conflicts and allow the parties to achieve resolution. Having the last word doesn’t work when judges become activists instead of adjudicators. Despite their best intentions to end environmental devastation and help the most vulnerable populations, judges are neither technical specialists nor project managers—and most important, they are not subject to direct sanctions from citizens the way politicians are.
There is a lesson for the ICC in the experience of national courts that go green. Beware of exceeding the traditional adjudicative role of a court while safeguarding the environment. And, for the many potential claimants, beware of the dangers of resorting to a final tribunal to govern the environment without first demanding a mechanism to ensure accountability in case the judges happen to get it wrong.
Teresa Kramarz, PhD, is a professor and research associate at the Munk School of Global Affairs in the University of Toronto. She is a Fellow of the Earth System Governance Research Alliance, and Co-Director of the Accountability in Global Environmental Governance Task Force. Her current research focuses on accountability in global environmental governance, energy and the environment in Latin America, and assessing the potential for democratic environmental governance in multi stakeholder initiatives. Her most recent publications appear in Environmental Policy and Governance, Review of Policy Research, and Global Environmental Politics. You can follow her on Twitter @teresakramarz.