Tim Stephens

In April the International Court of Justice (ICJ), the principal judicial organ of the United Nations, was seised of a new environmental case, brought by Ecuador against Colombia.

Around a dozen cases involving environmental issues have been brought to the ICJ since it was established in 1945. The most well known include the Nuclear Test Cases (1974 and 1995), Nauru Case (1993), the Nuclear Weapons Advisory Opinion (1996) and the Danube Dam Case (1997).

Despite the importance of some of these decisions, overall environmental cases have never dominated the ICJ's docket. Indeed the 1993 Chamber for Environmental Disputes established within the Court has never been used, and in 2006 the Court decided to cease the usual practice of holding annual elections for the Chamber’s membership.

Although the Environmental Chamber remains empty of litigants (and judges), the Court in plenary has recently been called upon to decide two significant and controversial environmental cases. In 2006 Argentina commenced proceedings against Uruguay in relation to the construction of paper pulp mills on the River Uruguay. The Court turned down Argentina's request for provisional measures in 2007, in a brief judgment that paid limited regard to the apparent environmental effects of Uruguay's pulp mills. We now await a decision on the merits, which could be the most significant international decision on the protection of freshwater ecosystems since the Danube Dam Case.

And now the ICJ also has Ecuador's case, the first transboundary pollution dispute ever to be brought before the ICJ. It concerns aerial spraying by Colombia of toxic herbicides near the border with Ecuador as part of efforts to control illicit coca and poppy plantations in frontier areas. Ecuador alleges that the spraying is having a range of negative health and environmental effects in its territory, and is also damaging economically important crops and affecting local indigenous peoples.

Ecuador's application to the ICJ is the perfect model of a pleading, as it sticks to the facts and does not stray into an account of the legal basis for Ecuador's complaint. However we can make some educated guesses as to Ecuador's argument as the law is well settled, as a result of the Trail Smelter Arbitration (1938 and 1941) - which is the only other example of an international adjudication of a transboundary pollution case - and subsequent efforts to codify and develop the celebrated dictum from that case:

[N]o state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein when the case is of serious consequence and the injury is established by clear and convincing evidence.

Ecuador's application is interesting for the weight it places on ecological concerns. It is noted that Ecuador is an undisputed global biodiversity hotspot - containing a disproportionate share of the world's biodiversity. Much of Ecuador has been identified as one of 34 global biodiversity hotspots by Conservation International.

(me on ABC Radio National, Perspective, 20 February 2008)

Last year the Intergovernmental Panel on Climate Change released its Fourth Assessment Report, the most comprehensive assessment to date of global warming, which confirmed the need for immediate action to be taken to reduce greenhouse gas emissions.

The heat is literally on to find the quickest, easiest and cheapest ways to cut emissions - to pick low-hanging fruit - before we confront the more difficult task of weaning the global economy from its dependence on fossil fuels. The most obvious opportunity to reduce emissions is to halt tropical deforestation, which accounts for 20 per cent of global carbon emissions, around 6 billon tonnes of carbon dioxide annually.

The single largest contributor to emissions from deforestation is Australia's neighbour Indonesia, due in large part to rampant illegal logging and forest fires that destroy two million hectares of tropical forest every year. Deforestation and other land use changes account for around 85 per cent of Indonesia's greenhouse gas emissions and make the country the world's third largest emitter, behind the United States and China.

The world has an obvious incentive to keep carbon safely stored in Indonesia's magnificent forests and peatlands. Indonesia is also acutely aware of the need to address global warming given that its archipelago is highly vulnerable to climate change impacts, especially sea level rises. Protecting Indonesia's forests and wetlands is important for many other reasons too, as it can safeguard the livelihoods of forest dependent communities and preserve countless plant and animal species in this global biodiversity hotspot.

However, tackling deforestation in Indonesia is no easy task and carries economic costs for this developing country. There are intense financial pressures to convert forests and peatlands to palm oil plantations to supply global appetites for cooking oil and, in a terrible irony, developed country demands for climate friendly biofuels.

At the UN Climate Change Conference in Bali last December, negotiators canvassed ways by which the international community could provide incentives to developing countries to reduce deforestation. In a highly significant development, the Bali Action Plan recognised that the reduction of emissions from deforestation in developing countries must be included in the next international climate change framework. This would be a major development, as current Kyoto Protocol rules do not allow the trading of carbon credits for avoided deforestation.

The challenge is now to find the right international formula to help Indonesia and other developing countries protect their forests. Two main options are on the table. The first is a fund-based approach, by which countries would make voluntary financial commitments to finance forest protection. The second is a market-based mechanism, which would allow credits to be generated from protecting forests and then traded on global carbon markets. Whichever approach or combination of approaches is selected there remains a host of complex technical issues to be hammered out. For instance, how can we be sure that a certain forest would have been razed had it not been for the avoided deforestation scheme? Or that by protecting one forest we won't simply encourage illegal loggers to move to another less well protected landscape?

At the Australian Centre for Environmental Law we are researching the challenges being faced within Indonesia in taking advantage of an international avoided deforestation scheme. It is clear that there will need to be a comprehensive regime of laws, regulations, guidelines and policies for sustainable forest management and accreditation. And these will need to be backed up by effective and transparent structures of administration and governance which can stamp out corruption and cronyism. Above all the legal and institutional arrangements must ensure that international payments for avoided deforestation are distributed equitably, and reach and reward those who are responsible for protecting forests and peatlands.

Judging by the many pilot projects proposed or underway, Indonesia is becoming a critical real-life laboratory for testing the effectiveness of avoided deforestation schemes in reducing carbon emissions. It is critical that these experiments deliver real results, for Indonesia and its people, and for a planet facing a climate catastrophe.

The Sydney Morning Herald ran a short article today on legal options available to challenge Japan's humpback hunt in the Southern Ocean. There was a brief reference to the Convention on International Trade in Endangered Species (CITES), but not to the real nub of the argument.

CITES is a veritable treaty. Concluded back in 1973, it is one of the first comprehensive multilateral environmental agreements to come into existence.

CITES is there to stop commercial trade in threatened species of plants and animals. It applies to species also covered by other international agreements, such as whales which have their own regime in the form of the International Convention for the Regulation of Whaling which established the International Whaling Commission.

Basically, all of the great whale species are inscribed in Appendix I to CITES, which means that strict limitations on trade apply. Commercial trade is completely out of the question, but moving specimens about for research is okay. The only exceptions will be if governments have entered reservations, which a number of states have done.

Japan has made reservations in relation to a range of whale species but, very significantly, not humpbacks. This means that CITES applies with full force to this species and Japan will be in breach of its CITES obligations if it goes ahead and harvests humpbacks this summer. This is because the convention applies to introduction of species from the high seas in the same way as it applies to cross border trade in animal specimens, and it expressly prohibits taking species from the high seas for commercial purposes.

There has been speculation in the press over the last few days that Japan may back down on its plans to kill humpbacks. It was even reported last night that Japan may never have intended to hunt the whale because the Nisshin Maru factory ship it has sent to the Southern Ocean does not have sufficient refrigeration capacity to take the extra hundres of tonnes of whale meat. It may well be that Japan has been using the proposed humpback hunt as a negotiating tactic to retain its much larger minke hunt.

(me in Crikey today)

At the Bali climate change summit the Rudd government demonstrated that it is streets ahead of the previous government on the global environmental challenge of our time. This week presents another opportunity for leadership in environmental diplomacy, this time on the vexed issue of Japanese whaling in the Southern Ocean near Antarctica.

The government is moving swiftly to begin surveillance of the Japanese whaling fleet, which has been dispatched to kill an unprecedented number of whales this summer. Projected catches for Japan’s "scientific" whaling program are 935 minke whales and, for the first time, 50 fin whales (which are an endangered species) and 50 humpback whales (which are vulnerable).

This is a dramatic escalation of the Japanese whaling program, which is now reaching an intensity not seen since the days of full blown commercial whaling. Although justified by the Japanese as scientific research under a loophole provision of the Whaling Convention, in reality it is commercial whaling conducted against the express advice of the Scientific Committee of the International Whaling Commission. Consider here not only the scale of the program (Japan will kill in one summer more whales for research than it did between 1954 and 1986) but also the lethal "research" methods (despite the existence of proven non-lethal alternatives).

The government’s surveillance efforts will collate evidence that could be used in a international case against Japan. Apparently we will soon learn what Australia’s litigation strategy will be. In this respect it is very welcome news that Prime Minister Rudd and Environment Minister Garrett have dusted off the report of the Sydney Panel of Independent International Legal Experts, which had been hidden in a bottom draw by the former government.

The Sydney Panel Report outlines a suite of legal options for successfully challenging Japan’s whaling program. These include taking a case to the International Court of Justice in The Hague for breaching the Whaling Convention, which allows genuine scientific research but prohibits plainly commercial whaling. Both Australia and Japan have accepted the jurisdiction of the World Court, so there is no impediment to bringing a case immediately.

Japan could also be hauled before the International Tribunal for the Law of the Sea in Hamburg for breaches of the Law of the Sea Convention. One of the advantages of this option is that the Tribunal can issue immediate provisional measures requiring Japan to cease is unlawful whaling activities. Other equally strong options include initiating compliance procedures under the Convention on International Trade in Endangered Species which could lead to a collective trade embargo.

There are many good legal options available to the Rudd government to move things forward on this issue. Although international litigation ought to be a last resort, Japan has simply not responded in good faith to any diplomatic overtures made over many years. On fisheries and whaling matters it continues to make ambit claims for ever increasing catches, against scientific advice and the wishes of the international community. Although international litigation is unlikely to bring a quick fix, and does carry risks, it can lead to positive change as was seen most clearly in the case of French nuclear testing in the South Pacific.

Dr Tim Stephens was Rapporteur for the Sydney Panel of Independent International Legal Experts and co-author of the Sydney Panel’s Report.

On 27 November 2007 the NSW Land and Environment Court handed down one of the first major judgments turning on the issue of climate change adaptation: Walker v NSW Minister for Planning [2007] NSWLEC 741.

Up to now most climate change litigation in Australia (and elsewhere) has been concerned with mitigation. For instance cases have been brought challenging approvals for coal mines or coal-fired power stations that are contributing to rapidly rising greenhouse gas emissions globally.

Walker v Minister concerned a concept plan approval by the Minister for a residential subdivision and retirement development at Sandon Point, a picturesque spot on the coast near Wollongong. The applicant argued that the approval was invalid because, among other things, the Minister failed to take into account an implied mandatory consideration namely whether the flooding impacts of the project would be compounded by climate change.

Following an exhaustive review of the concept of Ecologically Sustainable Development and its incorporation in Australian law by legislators and the courts, Biscoe J made the following findings:

Climate change presents a risk to the survival of the human race and other species. Consequently it is a deadly serious issue...Climate change flood risk is, prima facie, a risk that is potentially relevant to a flood constrained, coastal development such as the subject project.

... ... ... ... ... ... ... ...

In my opinion, having regard to the subject matter, scope and purpose of the [Environmental Planning and Assessment Act 1979 (NSW)] and the gravity of the well-known potential consequences of climate change...the Minister was under an implied obligation to consider whether it was relevant and, if so, to take it into consideration when deciding whether to approve the concept plan. The Minister did not discharge that function.