A Rendering for an International Judicial Architecture for Enforceable Environmental and Human Rights

By  Kirk Boyd, Anna Maddrick & Lauren Banham

Legal Pact is linking people, NGOs, businesses, and governments to design and build an international judicial architecture for enforceable environmental and human rights.

To this end, Legal Pact does not claim to have a specific design for an international judicial architecture: Legal Pact is a facilitator, linking various proposals for strengthening and expanding courts. Legal Pact searches for an array of organizations working on the development of courts and the rule of law, not to pick or choose, or in judgment, but to further collaboration among them, both for fit, so the judicial architecture can stand strong, and to muster collective clout so that the architecture gets built.

With this understanding, that the architecture is evolving, this blog offers overs an architectural rendering, a sketch, of a continuum of courts for the enforcement of environmental and human rights, from domestic courts to international ones.

To make it easier to conceptualize this sketch, we have picked six separate organizations working on the strengthening and expansion of courts and law. They can be a part of a renewed social contract. These are only a few to consider; Legal Pact is not endorsing one or the other, and welcomes others. Simply, these are worthy of discussion, with many others, at the Summit of the Future, and for consideration to be included, in whole or in part, within the Pact for the Future.

When a movement for the International Criminal Court was being built, there was some disagreement about what should be included as crimes, how the Court should operate, etc., but their was an underlying belief by the people and organizations that participated that the Court was essential. They found their way; the result was one of the most successful coalitions in history, and the creation of the Court.

This too is the intention of the Legal Pact. There will be disagreement about what the design of an international judicial architecture should be, and these disagreements will be discussed in an open, transparent manner, but core support for judicially enforceable environmental and human rights should be unwavering. This is why Legal Pact asks people, NGOs, businesses and governments to take one minute on the Legal Pact website and link - to build this bedrock agreement - then, linked with a fundamental goal, we can consider all proposals and collaborate to ensure that a renewed social contract, with enforceable rights, is built at the Summit of the Future, and beyond.

With this basic understanding in mind, the following proposals are mentioned here because they are worthy of discussion, not because Legal Pact agrees with every aspect of what they are doing, but because through linking, discussion and collabortion we can raise our collective clout, so that enforceable environmental and human rights can be discussed at the Summit of the Future, and unltimately realized in the courts of all countries.

Proposals

Earth Law is a good example of the expansion of environmental law at the domestic level to make law enforceable in courts. Legal Pact is not only facilitating linkage with people, NGOs and businesses that favor the refurbishing and construction of better courthouses, which are needed at the domestic level internationally, but also the improvement of law that can be enforced in those courthouses.

Earth Law is the idea that ecosystems have the right to exist, thrive, and evolve—and that Nature should be able to defend its rights in court, just like people can. Partnering with advocates in Panama and Ecuador, Earth Law has been applied in domestic courts and is expanding into other countries.

Eleanor Lives! argues for enforceable environmental and human rights at the regional level, particularly the strengthening and expansion of the regional court systems.  

Eleanor Lives carries on the original intent of the Universal Declaration of Human Rights that the rights in the UDHR, with the addition of environmental rights, can become enforceable in the courts of all countries. This transition is well underway. Today Regional Courts, including the European Court of Human Rights, the African Court on Human and Peoples' Rights, and the Inter-American Court of Human Rights, are issuing decisions that cover more than half of the countries on Earth. These courts should be expanded, with the addition of more regional courts internationally.

Stop Ecocide International is working on an international level with a growing global network of lawyers, diplomats, and across all sectors of civil society, towards making ecocide an international crime.

Presently, the Rome Statute of the International Criminal Court list four crimes. Stop Ecoside International proposes to amend the Statue to add a fifth crime: Ecocide. The definition of the crime is the following: “Unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts."

Making ecocide a crime creates an arrestable offence. It makes those individuals who are responsible for acts or decisions that lead to severe environmental harm liable to criminal prosecution.

Law Not War works at an international level with a new global campaign to enhance the jurisdiction and use of the International Court of Justice (ICJ) in order to assist countries, resolve international disputes peacefully rather than through recourse to the threat or use of force.

The principal objective of the Law Not War campaign is to increase the number of States accepting the compulsory jurisdiction of the ICJ, with the aspiration to achieve universal acceptance of jurisdiction by 2045, the 100th anniversary of the United Nations.

It is significant that the ICJ is already an effective Court, approximately 90% of ICJ cases are implemented – either fully or mostly.

The International Anti-Corruption Court also works at the international level. An International Anti-Corruption Court (IACC) would fill the crucial enforcement gap in the international framework for combatting grand corruption. It would constitute a fair and effective forum for the prosecution and punishment of kleptocrats and their collaborators; deter others tempted to emulate their example; and recover, repatriate, and repurpose ill-gotten gains for the victims of grand corruption.

Nearly 300 world leaders — including former Heads of State and Government, Nobel laureates, current and former government officials, and representatives of civil society, business, and faith communities — from more than 80 countries call for the creation of an IACC.

The Climate Governance Commission is another body working at the international level. The Climate Governance Commission aims to fill a crucial gap in confronting the global climate emergency by developing, proposing and building partnerships that promote feasible, high impact global governance solutions for urgent and effective climate action to limit global temperature rise to 1.5°C or less.

To reach these aims, the Commission has issued a report "Governing Our Planetary Emergency" in November 2023. As part of that Report, a call is made to establish an International Court for the Environment (p.75). The Court would have the power to adjudicate environmental disputes of an appreciable magnitude, order emergency and injunctive relief, mediate, arbitrate, and launch investigations.

In Summary

There is a common a thread that weaves together the common strands of support for enforceable rights into a tapestry. Through the consideration of the proposals mentioned here, and many other proposals to be considered, the renewal of our social contract can be achieved through the enhancement of the rule of law.

In his "Common Agenda Report" in preparation for the Summit of the Future, the Secretary General states: "I will therefore mobilize the whole United Nations system to assist countries in support of a renewed social contract, anchored in human rights."

Law is central to social contract theory. Courts are the means by which lists of rights, and the social contract they embody, are enforced. A fundamental flaw that the Summit of the Future must address is that our existing social contract, as enunciated in the UN charter, the Universal Declaration of Human Rights, and other documents, is being inadequately enforced in courts.

As was insightfully and eloquently stated in the book "Global Governance and the Emergence of Global Institutions for the 21st Century ", published in 2020: "We think that the time is ripe to reexamine the architecture of our current institutions of global governance, not as an academic exercise but to assist in catalyzing processes of change that lead to concrete progress."

The time is still ripe, even more so with the Summit of the Future on the horizon. Yet, to date, the High-Level Advisory Board that is leading the preparations for the Summit of the Future, and the outcome document, Pact for the Future, has done little to incorporate law, or an international judicial architecture, as part of the discussion.

Something must be done, but no single organization has sufficient clout to change the agenda for the Summit of the Future, or the outcome, to include law and courts: linkage and collaboration by many organizations are essential both for the design of an international judicial architecture, and discussion of its construction at the Summit of the Future, and beyond.

The Legal Pact for the Future, is facilitating a collaborative effort, but in the end, its success, and the inclusion of law, including the strengthening and expansion of courts, rests upon the willingness of people, NGOs and businesses to lead by linking. Through that linkage, and with the linkage of some governments as well, many governments will heed the Secretary General's call for a "renewed social contract" and the Summit of the Future may achieve success.