Jurisdictional Phases of the ICJ in adjudicating environmental disputes:

The ICJ has gone through three phases in adjudicating environmental disputes between the states. Still, the condition of the ICJ in adjudicating environmental matters is evolving, unlike other diplomatic matters. Meanwhile, this essay will recognize various phases that the ICJ has undergone for international environmental law.

1. Initial Phase: Role of the ICJ in advancing environmental law through Obligatio Erga Omnes;
   The initial phase shows the ICJ's rulings, whereby it connects states to their obligations by setting precedents in various cases and laying the groundwork for showing the direct relation of environmental harm with the violation of Human Rights and aligning them in direct proportion. For example, the supporting cases of the [1]Corfu Channel and the [2]Barcelona Traction was not directly interlinked with environmental law, they nevertheless reflect the ICJ's early concern with environmental harm but raise concern for state obligations.
   
   The Corfu Channel case, first decided by the ICJ marked the principle that using of own territory resources shouldn't undermine the rights of another country. Although not specifically referring to environmental issues, this ruling influenced Para 1 and Para 21 of the Stockholm and Rio Declaration and attributed a foundation for interstate understanding of environmental responsibilities. This early ruling acted as a tool for the development of environmental jurisprudence, denoting how the ICJ's early ruling indirectly fostered the evolving principle of environmental law and substantial development.
   
   Another is the Barcelona Traction case, which embraced the notion of Salus Populi Suprema Lex Esto reinforcing the welfare of the people. This case is also not directly linked to environmental disputes, but the ruling of the ICJ encompasses environmental protection as it relates to 'communitarian interests'. If the states seek to invoke erga omnes obligation their consequences will connect with the environmental concern that would naturally fall within the scope and lead to the demand of action towards the state. Thus, the initial phase of the ICJ's jurisprudence laid a strong foundation for subsequent cases to follow.
    
2. Consolidation Phase: Surmounting Procedural Obstacles:
   During this phase, the ICJ analyses how procedural hurdles prevented its adjudication in member states. This phase draws attention to the court's difficulties in handling environmental matters, including its limited jurisdiction due to the state's consent while adjudicating the matters, making it difficult to uphold the matter. In the key example case of [3]Australia v. France (also known as the Nuclear Tests I Case), the ICJ missed the opportunity to adjudicate a significant environmental matter.
   
   The case concerned Australia's claims against France for conducting atmospheric nuclear tests in the Pacific, which allegedly caused harm through radioactive fallout. Australia argued that there were significant interstate ramifications from the aftermath, including harm to its population and ecology. However, the ICJ chose not to rule since France promised to stop the testing by a unilateral declaration, which helped to settle the controversy.
   
   Even though the lawsuit was dismissed, whereby [4]Judge De Castro observed that "Radioactive fallout on the territory of another state was illegal, affecting both human rights and the environment" This sets a significant legal precedent for environmental protection under international law. This demonstrates how procedural obstacles, such as a unilateral declaration, can prevent substantial adjudication while still allowing for future conflicts.
   
   This indicates how procedural barriers including unilateral declaration can prevent comprehensive adjudication. In the 1990s, environmental consciousness surged globally, reflecting the maxim salus populi suprema lex esto, accumulating various international environmental treaties, however, due to jurisdictional constraints, these treaties were considered ultra vires and thus did not influence the ICJ's decision. For instance, in the [5]Nauru Case, Nauru claimed compensation from Australia for environmental degradation caused by phosphate mining during Australia's trusteeship. Despite this important issue, the case was settled before reaching the merits, thus missing another opportunity to develop the IEL jurisprudence.
   
   Similarly, in the[6] Nuclear Tests II Case, New Zealand filed an appeal in the World Court to review the judgment in the case of Australia v. France,1974. New Zealand raised concerns about underground nuclear testing by France in Polynesia's Mururoa Atolls, anticipating the Environmental Impact Assessment (EIA) principles set out in the Protection of Natural Resources and the Environment (1986), the case was dismissed by the as it was beyond the scope of judgment on which New Zealand relies.
   
   Yet, in this case, Judges Weeramantry, Koroma, and Geoffrey Palmer expressed their support for environmental protection, going beyond the majority's general assessment. They highlight the extension of Customary International Law(CIL)by adding Precautionary principles like Environmental Impact Assessment(EIA). This recognition underscored the integration of International Environmental Law (IEL) into the court's mainstream deliberations and marked a step towards incorporating environmental matters into the ICJ rulings. However, the ICJ was still beset by procedural constraints and lacked the specialized knowledge required to properly comprehend the intricate elements of environmental impact assessments, underscoring the ongoing challenges in addressing environmental cases.
    
3. Third Phase: Stare Decisis and Lacunae in International Environmental Rulings:
   After researching upon the initial phase and the procedural hurdles in deciding the matters, the third categorization of the phases of the ICJ's proceedings is the phase in which the ICJ delivered its judgment and set a significant precedent. This essay will not only consider its prevalence but also show the gaps in the interpretation and application of the judgment.
   
   The observation is being dignified in the landmark case of [7]Argentina v. Uruguay, 2006 (commonly known as the Pulp Mills Case), the conflict arises on Uruguay's authorization to construct pulp mills on the bank of the River Uruguay, a waterway jointly managed by the country Uruguay and Argentina under its 1975 statute.
   
   The matter was brought before the World Court, whereby Argentina objected to the construction as it was derogatory to the provisions of the statute which concerns environmental protection, whereby the ICJ adjudicated the matter and in its decision, highlighted the procedural elements of International Environmental Law (IEL), notably:
   
   • To obligate the negotiation in good faith:
     The ICJ underscored the importance of this principle, to engage parties in a meaningful dialogue when there is a dispute in international treaties.
      
   • The obligation of conduct:
      The court emphasized the negotiation to be substantive not merely formal to fulfill the need for a genuine effort to resolve the dispute.

The court also acknowledged that conducting the Environmental Impact Assessment (EIA) is not specifically mentioned in the 1975 statute but it was noted that international law's general principles so states must conduct the EIA when their activities are concerned with environmental protection. This was another case where the ICJ ruling played the role in dominating the concerns of environmental protection on priority.

This case is regarded as the most priority case whereby the case tested the interplay between environmental protection, procedural obligation, and the principle of Good Faith. Although the ICJ left some important concerns regarding the assessments Whether the obligation of the EIA should be fulfilled via an international framework or by member states' domestic legal framework. The phase leaves behind the question of the widespread of the Environmental Impact Assessment (EIA).

Mechanisms for the ICJ's Contribution to Environmental Jurisprudence and Lex Lata:

After examining the various phases of the ICJ's jurisprudence on environmental law, this essay will now explore how the ICJ can contribute to environmental disputes. It will outline different paths through which the ICJ can contribute to its jurisprudence. The following are the key aspects of the contribution:

1. Issuance of Advisory opinion:
   This is regarded as the most crucial and significant way through which the ICJ can contribute to solving the stand of the development of issues by advisory opinions. By issuing advisory opinions on the issues which also acted as precedents, providing future guidance for similar cases, and identifying the general principle of international environmental law.
   
   The Recent opinion of the ICJ on climate change, which stands for the principle of due diligence states that the state should acknowledge the concerns of crossing borders when there is an activity that would result in an environmental threat also Court reaffirms that the duty of due diligence is a procedural obligation under international environmental law, this can be exemplified in the case of [8]Costa Rica v. Nicaragua, wherein the ICJ provided a fresh perspective on Customary International Law, particularly identifying principles like the EIA.
   
   Such decisions reinforce the capacity of the Court to shape and develop environmental jurisprudence the leading case of the [9]Gabcikovo-Nagymaros Project is a river dispute project involving Hungary and Slovakia which is concerned with the environmental harm whereby The ICJ emphasized the duty of the state to avoid such activity that may have significant transboundary environmental harm or avoid actions that refrain from the sustainable development principle.
   
   Aligning with the case, the [10]ICJ had an advisory opinion regarding the lawful justification for the use of nuclear weapons whereby the ICJ concedes the dire consequences of environmental harm, although the decision of the court was 'non-liquet', but one of the paragraphs highlighted:
   "When determining what is essential and appropriate in achieving lawful military goals, a state must take factor in the impact on the environment".
   
   This paragraph outlines how the state protects the environment while having armed conflicts. [11]Judge Christopher Weeramantry in his opinion said that concepts like Intergenerational Equity, the Precautionary Approach, and common heritage resources should be inserted in customary international law and are crucial for the continuation of humanity.
    
2. Integrating Environmental laws with other disciplines of the International Law:
   The ICJ plays a decisive role in linking environmental law to international humanitarian law. For exemplification, it was studied already in the advisory opinion of 1996 ICJ's Legal justification on the use of nuclear weapons, the ICJ recognized the connection between armed conflict with ecological concerns, highlighting the consideration of ecological necessity and environmental protection, weighing environmental consideration in achieving military objectives.
    
3. Valuation of Environmental Harm:
    The ICJ acknowledges the valuation of environmental harm in its adjudicative process, thereby setting a precedent for nations, so in order they can uphold their obligation and help in promoting global environmental justice. The studied case of Costa Rica v. Nicaragua, where the first time the ICJ awarded compensation for environmental damage in 2019. This ruling was a milestone in environmental jurisprudence and also shows its impactful role in environmental disputes.
    
4. Interpreting International Agreements:
   ICJ used its power to interpret international agreements which may violate Customary International Law, this can be understood in the case of [12]Australia v. Japan (also known as the Whaling Case), where the ICJ interpreted the convention, which is an environmental treaty. The Court emphasized that the state must avoid significant transboundary harm and obliges them to use the sustainable development principle in environmental decision-making and advances the principle of precaution in international environmental law.

End Notes:

1. United Kingdom v. Albania, I.C.J. 4, 22 (1949).
2. Belgium v. Spain, I.C.J. 3, 32 (1970).
3. Australia v. France, I.C.J. 253, 270 (1974).
4. Judge Manuel Díez de Velasco y de Castro was a prominent Spanish jurist and judge at the International Court of Justice (ICJ). He was known for his contributions to international law, especially in matters of state sovereignty and the use of force.
5. Nauru v. Australia, I.C.J. 240, 258 (1992).
6. New Zealand v. France, I.C.J. 288, 304 (1995).
7. Argentina v. Uruguay, I.C.J. 113, 137 (2006).
8. Costa Rica v. Nicaragua, I.C.J. 33, 58 (2018).
9. Hungary v. Slovakia, I.C.J. 7, 36 (1997).
10. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), I.C.J. 226, 257 (1996).
11. Judge Christopher Weeramantry, a Sri Lankan judge at the International Court of Justice, was known for his strong advocacy of humanitarian law and environmental protection.
12. Australia v. Japan, I.C.J. 148, 172 (2014).

Written By: Om Prakash Tiwari, 3rd -Year Student Of The BA LL.B. program at School of Law, FIMT, Guru Gobind Singh Indraprastha University, New Delhi