Wednesday, March 10, 2010A Court for the Environment

Ominike Robinson-PickeringThe Potential Impact On The BVI & The Caribbean

Although the BVI Constitution provides the Legislature with wide powers to enact laws to protect the environment, the Judiciary has just handed down its first judgment in an environmental case, Virgin Islands Environmental Council v Attorney General and another (the VIEC case) which has sparked the ignition of discussions locally surrounding whether there is a need for an International Court of the Environment (ICE) and its possible impact on the BVI. Calls for an ICE are far from new and have been aired on numerous occasions spanning over a decade. The mandate of the ICE is to include “enforcing the right to a healthy environment” and “imposing fines on countries or companies that fail to protect endangered species or degrade the natural environment”. Whilst the arguments for the creation of such an international court have proved deserving of consideration, the difficulties and hindrances that will be encountered in the creation of such a court must be simultaneously acknowledged. The judgment in the VIEC case demonstrates that such issues are not reserved to the shores of developed countries arguing about the effects of climate change, such as the G-20 and their allies. The arguments for and against the establishment of such a Court and more specifically its impact on the BVI need to be thrashed out in advance of being faced with the decision.

The dispute in the VIEC case involved a challenge of the approval given by the former Chief Minister and Minister of Planning for the construction of a five-star Resort, Marina and Signature Golf Course on the currently sparsely populated Beef Island. Although many grounds were proffered by the VIEC for the revocation of the approval, the only argument that found force with Justice Indra Hariprashad-Charles was that the proposed development would severely affect one of the mangroves, Hans Creek Fisheries as it was a “marine protected area”. Justice Hariprashad-Charles stated that the decision of the Minister was illegal because it was made in contravention of regulation 51(5) of the Fisheries Regulations read in conjunction with the applicable statutory provisions. The High Court Judge was careful to note that the VIEC had not asked the court to adjudicate upon the merits of the Beef Island Project or whether it may result in adverse environmental impacts. However, she seemed to suggest that she would be in favour of a decision to allow the Beef Island Project not to be quashed in its entirety but rather, that the aspects of the development such as the hotel, inner marina, residential development, commercial development and infrastructural development which may not give rise to illegality should be preserved by the decision-maker. This is understandable as the Beef Island Project is intended to boost tourism, one of the mainstays of the BVI economy.

If the ICE actually comes into being, the deciding factor would be whether the BVI should become a Signatory State. Notwithstanding a population of 30,000 and growing, with 435,679 active companies on the Companies Register as of 31 March 2009, this is not a question that can be answered lightly as the decision will affect not only the citizens and residents of the BVI but also all companies incorporated under the Business Companies Act, 2004. This is because the ICE would have jurisdiction over the territories of Signatory States as well as private individuals (including corporate individuals) resident/incorporated/domiciled in a Signatory State. In addition, there is the possibility of jurisdiction in relation to non-Signatory States through corporations domiciled or incorporated in Signatory States with operations in non-Signatory States. The sanctions imposed by the ICE would include fines and orders to restore and rehabilitate damaged habitats. Although rulings would not be binding, in the case of a small countries like the BVI, international political considerations will undoubtedly be brought to bare.

Furthermore, an ICE might have far reaching impacts on the economic survival of the BVI because of the limited diversification of our economy thus far. It is no secret that the BVI relies heavily on tourism and financial services for its economic sustenance but, just one “adverse” ICE judgment may severely impair either or both of the twin pillars. International environmental law is not consistent with the polluter pays principle; neither is it consistent with the common but differentiated responsibilities and respective capabilities of small island States such as the BVI. While small island nations emit less than one percent of global greenhouse gas emissions, their geographic and economic characteristics put them at risk to experience the effects of climate change with more immediacy and severity than anywhere else in the world. The BVI and its other Caribbean counterparts do not have the resources and the capacities to participate in international fora where environmental standards are set and enforcement would require the enactment of national legislation, establishment of specific enabling administrative/institutional arrangements, public awareness and education, environmental management measures, and regulation and enforcement. The question is-Who is going to finance this?

It can be predicted that most of the environmental disputes in the BVI’s future will involve the need to strike a balance between economical development and environmental preservation. As British Virgin Islanders strive to maintain the standard of living to which they have become so accustomed, the call for development and enhancement of what has been thus far relatively low key development in the hotel sector is becoming ever more persistent. On one hand because the BVI is dependent on tourism and financial services, a strong argument could be made that those economic bastions supersede the need for the ICE. If the BVI is a Signatory, the tenets of the ICE may indirectly impose such severe restrictions on development that it might actually stagnate our tourism sector as well as repel companies which might otherwise have incorporated in the BVI due to fears of being subject to the jurisdiction of the ICE by being incorporated in a Signatory State even though their main operations take place in non-Signatory States. This will no doubt negatively impact on the overall economic viability of the financial services industry.

There is no guarantee that global interference would produce any real merits or at the very least, benefits that cannot be derived by sovereign adjudication. To address serious international environmental harms, the introduction of an ICE may prove more difficult than the current courts and tribunals. International environmental law is a particularly broad subject matter that affects many fields, such as labor, trade, energy, sovereignty, international fisheries law, health, international treaty law, and human rights. While existing courts and tribunals may not deal effectively with serious international environmental problems, the establishment of this new court arguably will lead to inconsistent judgments among the many courts able to adjudicate the same environmental problems, as well as a fragmentation of international environmental law.

The converse is that if the BVI refuses to become a Signatory State, then it may have no redress when “accidents” which occur in far off jurisdictions impact the BVI. It has been surmised that Chernobyl and other environmental disasters have shown that pollution does not respect national borders, so defence of the earth cannot just be left to individual states. Activists for the ICE advance this argument by stating that the system at present provides inadequate legal avenues to seek redress for environmental disasters that cross boundaries.

A suggestion which at first blush seems to marry the concerns of both sides of the arguments is the promotion of the BVI as an ecotourism destination. Ecotourism would provide funds for conservation and directly benefits the economic development and political empowerment of communities all the while minimising the negative aspects of conventional tourism. Sir Richard Branson is already on this train, having recently purchased Mosquito Island with the intention of developing it as an eco-resort. It has been reported that plans for the resort include energy power from wind turbines and solar panels, with the buildings designed to utilize local wind patterns which would avoid the need for air conditioning. It is proposed that all the food will come from local, organic sources and all motorized transport will be powered by bio fuels. If this type of operation is in the pipeline, do we really need an ICE to help with the laws that dictate how we manipulate our environmental resources particularly at the risk of irreparably damaging our economic stability?

As a Signatory State to the ICE it would be expected that basic regulations in relation to pollution limits, proper garbage disposal mechanisms, recycling and littering restrictions would be adhered to. Air standards would also be implemented and this may lead to calls for an increased use of hybrid vehicles as well as limitations on the number of vehicles per household or per capita. Are these restrictions ones which BVIslanders are ready and willing to adopt? Can we adapt to the changes which being an environmentally conscious society will bring? Changes in consumption and the composition of our waste.

As it now stands, the BVI has one of the highest levels of waste production per capita and this problem is compounded by the lack of sufficient garbage disposal mechanisms and no island-wide recycling. In order to meet the stipulated regulations massive upgrades would have to take place and this would be no inexpensive feat. The strain on the economy to implement international standards will weigh heavily both upon financial and human resources and may well outweigh the economic benefits to be obtained from such output. However, adherence to the regulations might be just the catalyst the BVI needs to get its waste disposal act in order. Currently, there is a proposal by GreenVI, a non-profit organisation, to start with bottle recycling and have the disposed bottled re-used to make bottle blown art work. Submitting to the jurisdiction of the ICE would make projects like these more attractive to organisations that may otherwise be reluctant to provide the funding necessary for these types of upgrades particularly since, as mentioned previously, companies incorporated in the BVI would be subject to the ICE.

Justice Hariprashad-Charles aptly stated that, “For many of our Caribbean people, the ocean is the life-support of our planet: it provides much of the food we eat, the air we breathe and drives the climate we need to survive.” Thus, although it is acknowledged that it is the sovereign right of every country to utilise their natural resources in the way that they see fit, it is similarly acknowledged that environmental issues are not restricted to territorial and sovereign boundaries as such issues and concerns have nothing less than a contagion effect on neighbouring islands, States and Territories and on a grander scale, universally. It is the result of this consequence that weighs heavily in the corner of the establishment of an International Court of the Environment. The proponents believe that the principal causes and effects of the world’s major environmental problems are, as a result of this contagion effect, international in nature and thus require solutions which are also international.

Hopefully, the magnitude of the disputes that the BVI is likely to encounter in the near future will not require international intervention. The fact is that without the ICE there is no redress if a company comes onto the shores of the BVI and does whatever it wants. There is however, no certainty that having one regulator enforcing worldwide compliance would make much of a difference. It is understood that there are no borders to environmental breaches and therefore neighbouring and distant countries may do things which affect our shores and if do not become Signatories we have no redress. It is undeniable that the concerns which are raised engender the need for the BVI to take a look at its local environmental practices before it can seriously consider submitting to the mandate of the international community. In any event, whether we actually have to begin addressing our minds to the question of the help or hindrance of an International Court of the Environment is left to be seen as a draft Statute of the International Environmental Agency and the International Court of the Environment was presented at the UNCED Conference in Rio de Janeiro since June 1992 and there has been no tangible progress in relation to ICE. Whether or not the court becomes an immediate reality, the BVI has a responsibility to future generations to take a serious look at the way its current environmental practices will impact the long term health of the land and sea that has been providing us with serenity that we want to maintain as Nature’s Little Secrets.

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