Bringing Deforestation before an International Court?

Deforestation is a key issue in the fight against climate change. In all areas of the world, forests are being transformed for different uses, all leading to a loss of forest cover “from 31.6 percent of the global land area to 30.6 percent between 1990 and 2015”. Recently, the Amazon fires have caused concern around the globe, not only because of their scale but also because of the importance of the Amazon for everyone, as one of the largest rainforests in the world, and therefore crucial for both mitigating climate change and hosting millions of species. Much concern has been raised at why such fires had intensified compared to previous years. Human-driven deforestation has been shown to be the main reason for the fires, and with less environmental oversight from the current Brazilian government, different political actors have pointed fingers at its responsibility. Brazil is not the only country where important forests are threatened. Other major forested areas in Western and Central Africa and South-East Asia are not spared from large-scale deforestation. The few original forests in Europe are also under threat.

Between legal and illegal deforestation, more forested territory is converted for various uses, from agriculture to mining. Moreover, many areas of major forests are inhabited by indigenous peoples, who suffer directly from the consequences of deforestation. President Bolsonaro has been very clear that he intends to use the land for economic prosperity as he claims that it is his sovereign power to do so. The tension between economic development and environmental protection is not specific to the Amazon and struggles over how to achieve economic development in the forested lands, with people already living and using those lands exist elsewhere too.

One rhetorical question arising from this dramatic situation is whether there are avenues to use the international judicial system to try to hold the states accountable for the deforestation happening in their territory. Is there a chance for interstate litigation to succeed?

First hurdle: applicable obligations

The problem of an interstate judicial procedure for ascribing international responsibility for causing deforestation is the notion of sovereignty. It takes shapes in the general principle of permanent sovereignty over natural resources. With this in mind, multilateral treaties have been developing certain frameworks that go beyond state sovereignty and ask for specific obligations to be complied with within states’ territories. However, it is less clear how an international tribunal would judge on this.

The international legal frameworks that exist in relation to deforestation have had to not only navigate states’ sovereignties but also balance different interests when it comes to understanding what economic development means in relation to forests. Two multilateral conventions come to mind when thinking about deforestation: the UN Framework Convention on Climate Change (UNFCCC) and its Paris Agreement, and the Convention on Biological Diversity (CBD).

The Paris Agreement has finally legally enshrined the importance of forests as it now includes forest-related policies towards mitigation now. Article 5 of the Paris Agreement sets the tone as it says that “parties should take action to conserve and enhance […] forests”. However, the drafting of this article may be insufficient to create direct responsibility on states (typically using ‘should’ and not ‘shall’), and it is rather broad and undetermined. It would require further elaboration from the tribunal to become fully operational.

Similar conclusion can be reached for obligations stemming from the CBD. These two conventions create similar types of obligations, which are drafted in broad terms and are not easily convertible into actionable obligations. Moreover, the CBD framework only addresses directly forests conservation in subsequent COP decisions, and not in the main body of the Convention. It is only through treaty-body decisions that it created an “expanded programme of work on forest biological diversity”. They have been the basis for multiple plans and programmes of action, and a substantial amount of decisions have been taken, all belonging to the category of soft law.

Moreover, in some cases like for the Amazon forest, a regional treaty like the Amazon Treaty exists between the states sharing the forest. Despite its focus on cooperation between countries in the Amazonian Basin for better economic prosperity, its Article I mentions that the State parties must pursue “joint actions [that] produce equitable and mutually beneficial results and achieve also so preservation of environment, and the conservation and rational utilization of the natural resources of those territories.” At first reading, it does not create specific obligations for each State party to comply with, rather it allows for further cooperation.

The legal question binding those existing obligations is: are they strong enough to create state responsibility recognised by an international tribunal? The answer to this is not straightforward, making a case against deforestation difficult to win.

However, a case based on certain customary obligations might be more successful. Indeed, other existing customary obligations could be invoked such as the obligation not to cause transboundary harm on other states’ territory. This obligation would work better in cases where a neighbouring state which shares the forest initiates a judicial procedure. In that scenario it could work similarly to a claim over a shared river, as for example when Costa Rica built a road near the San Juan river in the 2015 case before the ICJ.

Second hurdle: jurisdiction

In the 73 States that have declared the jurisdiction of the ICJ compulsory under Article 36(2) of the ICJ Statute, a few are especially concerned in the fight against deforestation, such as Cameroon and the DRC for the Congo Basin, or Cambodia for the Southeast Asian Rainforest. For Brazil, the jurisdiction of the ICJ would come through the Pact of Bogotá (Article XXXI), only through the filing by another American State party to the Pact. In cases where no declaration exists, the ICJ would not be the easy way to file a case.

Under both the CBD and the UNFCCC, if any other means to settle a dispute fails, a procedure of conciliation shall be started, which makes conciliation the method by default. This does not create a strong framework for interstate adjudication.

Therefore, if all fails, only two options remain available to hear a case before the ICJ: either a Special Agreement under Article 36(1) of the ICJ Statute, or the case of a forum prorogatum, whereby a state like Brazil would have to accept the ICJ’s jurisdiction after the filing of a potential dispute by one of the parties to the treaty. To use the ICJ’s jurisdiction, a procedure for an advisory opinion might be more successful, through the UNGA, as done in the Chagos opinion. Despite being non-contentious and non-binding, it has the benefit of clarifying the legal obligations and shaming the country potentially at fault.

States could also choose to go to arbitration, however this would also entail that both parties have to agree to settle a dispute in that particular forum. Another possibility could be to use arbitration clauses from investment treaties which have more stringent jurisdiction clauses as a way in for litigating deforestation issues.

Third hurdle: standing

The question of which State would have standing in an interstate claim also contains a set of difficult questions to answers. As the traditional threshold for having standing is generally understood as having a “legal interest to sue”, it would be easier to imagine standing for neighbouring States who share the forest. In this case, such States would be given standing more easily as the decisions of one State can affect neighbouring States, such as the spread of the fires, the pollution it creates, and the loss in biodiversity it creates also in the territories of the neighbouring States. They could make a case for having a special interest in conserving the shared forest.

Another way to grant standing is through the erga omnes partes nature of the obligations contained in the multilateral treaties mentioned above: in that case, it would allow States members to those conventions to initiate a judicial procedure. The latest judicial procedure to be initiated on that basis is the case brought by the Gambia against Myanmar, where the Gambia argues that because the Genocide Convention creates obligations erga omnes, “all States “have a legal interest” in the protection of the rights involved”(para. 123).

Fourth hurdle: proof

If all other hurdles are overcome, another question arising is whether the causes for deforestation can be linked to the state in question to be held responsible under international law. For example, can we prove that the government of Brazil is responsible for the fires? This would be especially difficult if the obligation to be proven to be breached is the obligation not to cause transboundary damage, as the proof has to be given for the damage in the territory of the other state, as opposed to the damage within the Brazilian part of the Amazon for example. The attribution between the causes and effects will create extra hurdles. The prevention and the precautionary principles will be used in this context to show harm or significant risk of harm and attribute the consequences of the fires to Brazil.

However, in the cases of violations of either the Paris Agreement or the CBD, the proof of harm within the state of Brazil is less of an evidentiary issue from a scientific perspective. Ample evidence on the links between deforestation and both climate change and biodiversity loss exist. The problem here is the legal attribution to the state of Brazil more easily and the fact that this harm in Brazil affects all other States. In this attribution, the proof will be easier to provide if the obligations breached are negative rather than positive.

Conclusion

Procedural and substantial hurdles make interstate litigation more difficult to succeed in judicial cases brought to fight deforestation. Other avenues might be more successful and create more rapid impact such as litigation at the national level (as seen in Pakistan and Colombia), or regional human rights litigation, as it circumvents the sovereignty barrier of interstate adjudication. However, it is not to say that no case would be successful and overcome the hurdles mentioned. For example, a case brought on the basis of customary international law may be more successful, or an advisory opinion from the ICJ may be more realistic, or interstate arbitration based on investment treaties might offer stronger clauses for litigation.