Slowly but surely, the world is waking up to the serious consequences of environmental degradation for human civilisation. The detrimental effects of climate change and pollution are already being felt today, and their impacts are felt most strongly by the most vulnerable in global society. Recent developments show us that international law is adapting to meet these challenges, driven by both State conduct and institutional initiatives.
The ICJ’s February 2018 remedies ruling in Costa Rica v Nicaragua is an important development in international law’s protection of the environment, being the first time that the ICJ has considered the issue of compensation for environmental damage.2 The case related to a Costa Rican claim for compensation for Nicaraguan dredging and excavation in and around the San Juan river. Having previously found that the relevant area, which had previously been the subject of a sovereignty dispute between the two States, did belong to Costa Rica, the ICJ determined at the that Costa Rica was entitled to monetary compensation. It was adjudged that the total sum payable by Nicaragua would be US$378,890.59.3
In setting out the methodology for the calculation of damages, it was deemed established that international law did compensate ‘damage to the environment, and the consequent impairment or loss of the ability of the environment to provide goods and services’.4 The ICJ further stated that ‘active restoration measures’5 may be warranted where necessary to return the natural environment to as close to its previous state as possible. As such, there can no longer be any doubt that not only will States responsible for environmental damage affecting the territory of other States be made to pay compensation, they may also be made to undertake positive obligations to rectify the situation.
Additionally, the ICC has positioned itself as perhaps an unlikely institutional mechanism to combat environmental degradation, through the prosecution of what have been dubbed ‘climate crimes’. More technically, ‘climate crimes’ refer to the environmental damage which results from the commission of those core international crimes the ICC was designed to pursue: war crimes, crimes against humanity, and genocide. The ICC’s Office of the Prosecutor laid out in 2016 that in deciding its caseload, a particular emphasis would be placed on those crimes which resulted in ‘inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land’.
The significance of this move is twofold. Firstly, it demonstrates an increasingly widened understanding of the impacts of the atrocities the Court guards against. The narrative which can be sometimes presented as just a matter of putting war criminals, for instance, behind bars has been given greater nuance. The ICC’s latest step shows that it is willing to take into account the variety of harms and the variety of victims which the gravest human rights violations inevitably have. This is in line with other developments in the ICC’s approach, including the successful prosecutions of both rape as a weapon of war and the destruction of cultural heritage.
Second, the ICC’s stated willingness to prioritise cases involving environmental damage contributes to an increasingly rigorous regulatory framework which multinational corporations are obliged to adhere to. On both the international and the national levels, businesses can no longer afford to ignore compliance with environmental and broader human rights standards. A cursory look at national statutes and jurisprudence will tell you as much. France adopted a 2017 Duty of Corporate Vigilance Law, which prescribes that companies must identify and prevent environmental and human rights violations, whether arising from their own activities or from those of their suppliers. In the UK, the Court of Appeal has also recently held that a UK-based parent company may owe a duty of care to those in foreign States adversely affected by the activities of its subsidiary (although the matter has yet to proceed to trial on the merits). The case, Lungowe v Vedanta Resources Plc,6 concerned Zambian citizens who suffered harm due to mining operations carried out by Vedanta’s subsidiary in the country. The onus is hence on businesses to ensure that they follow the UN Guiding Principles on Business and Human Rights, and implement stringent checks across their supply chains to ensure full compliance.
States, institutions, and the international legal order as a whole continue to demonstrate a new sensitivity to the protection of the natural environment. This has been through the imposition of increasingly onerous obligations upon States, corporations and individuals alike, reflective of a growing consensus as to the necessity of effective safeguards. Such progress is to be welcomed - to borrow the words of the ICJ in its Nuclear Weapons Advisory Opinion, ‘the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn’.7