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.
