Filling the Gap: How an International Land and Environmental Court Could Provide Remedies to Project-Affected Communities
Vol. 42 Associate Editor
As businesses around the world contribute to human rights abuses and the environmental degradation in countless communities, local community members have few options for redress. Because judicial remedies are rarely available to impacted groups, non-judicial grievance mechanisms (NJGMs) are often the channel through which those subject to business-related harm attempt to seek remedies. However, such mechanisms are also mired with procedural barriers to justice. This blog post outlines some of the issues with existing judicial and non-judicial remedies available to those whose lives and land are impacted by development projects. This post ultimately advocates for the creation of an international land and environment court (ILEC) to address accessibility and enforcement gaps.
Current Judicial Remedies Are Inadequate
While the International Court of Justice (ICJ) and other regional human rights courts, such as the European Court of Human Rights and the Inter-American Court of Human Rights, may adjudicate land and environmental cases, these institutions are often either inaccessible or inadequate as an option for project-affected communities and individuals. Only States can appear before the ICJ. In other words, individuals, communities, NGOs, and other non-State actors are unable to bring a case unless a State does so on behalf of its nationals. However, when State governments often benefit from the very industries causing harm to its citizens, it is unlikely that the State will advocate for its most marginalized groups. Similarly, the jurisdictional and enforcement powers of regional human rights courts are often limited. For example, in the Inter-American Court of Human Rights, only States Parties and the Inter-American Commission have the right to submit a case—not individuals or organizations. In addition, national litigation in the host country of harmful developments often leads to no redress for those most impacted. While the reasons vary across countries, the common obstacles are a lack of political will and insufficient legal capacity. Alternatively, litigation in a corporation’s country of origin may be an option and may lead to better results if the country has a stronger judicial system. However, the legal systems will still provide inconsistent, “patchy” and “unpredictable” domestic law remedies.
The Proliferation of NJGMs Is Not Enough
The lack of judicial remedies leaves individuals and communities that have been subject to social and environmental harms as a result of development with one other option: NJGMs. Some sectors develop their own standards and grievance mechanisms to handle complaints, and many businesses have even established project or corporate-level grievance mechanisms. However, such avenues are tainted by serious conflicts of interests as the actors who have allegedly transgressed are the same ones tasked with responding to the complainants. More robust grievance mechanisms include intergovernmental NJGMs, which are created by international agreement between states. For example, OECD member states created the National Contact Points (NCPs), which handle complaints regarding breaches of the OECD Guidelines for Multinational Enterprises. Grievance mechanisms associated with Development Finance Institutions (DFIs) are another well-known accountability channel within the development space. A DFI’s grievance system receives complaints from adversely affected individuals and communities harmed by activities financed by that particular DFI. Prominent examples include the Compliance Advisor Ombudsman of the International Finance Corporation and the Inspection Panel of the World Bank. While the scope and jurisdictions of these NJGMs vary depending on the type of mechanism and the institution itself, most perform two functions: (1) mediation, and (2) compliance. The former centers on dialogue-based communication between the corporate transgressor and the impacted communities, and the latter investigates whether relevant standards were followed in the activities highlighted in the complaint. However, countless scholarship and reports expose the ineffectiveness of many of these NJGMs. Many marginalized groups struggle to access such institutions and may not even be aware of the existence of NJGMs. However, even when complainants file a grievance, there is no guarantee for a remedy. Data examining filed cases in eleven different NJGMs found that approximately 74% of all complaints filed never reached either the problem solving or compliance review stages of the process. Only 19% of cases reached problem solving before they were closed, and only 13% of cases reached compliance review before they were closed. In cases where the compliance review stage is reached, the NJGMs rarely have the authority to order corrective measures to go along with their investigation. Furthermore, the entire process is riddled with procedural hurdles. For example, mediation is typically voluntary and requires the consent of both parties. Therefore, it may be difficult for the actors that caused harm to agree to any kind of mediation or dialogue. If complainants are brought to the table, substantial power imbalances threaten the efficacy of the process. In addition to less social, economic, and political power, asymmetrical information and a lack of expertise impedes an equitable and fair process, especially when little is done to provide resources to level the playing field.
Revisiting the Call for an International Land and Environment Court (ILEC)
NJGMs have proven insufficient in securing and enforcing remedies for most project-affected communities, and existing judicial avenues significantly limit who has access to justice. In the face of such impediments to justice, an ILEC could give project-affected communities who have been systematically ignored a day in court. In recent years, the international community has seen the growth of environmental and/or environment and land courts around the world. Over 1,200 environmental courts and tribunals are operating worldwide at the national and state/provincial level,  such as the Land and Environment Court of New South Wales and the Environment and Land Court of Kenya. While no ILEC exists, the idea is not new. In the 1980s, an international conference in the Hague called for a “new institutional authority” within the United Nations. Efforts remained stagnant until 2008 when another campaign was established in the United Kingdom: The International Court for the Environment. The International Bar Association, comprised of 200 bar associations worldwide, also supports the creation of such a body. An ILEC has the potential to fill important gaps both in international and regional courts with limited jurisdictions and in NJGMs. While non-State actors are unable to bring cases in the ICJ and face other jurisdictional restrictions in regional courts, the ILEC would allow non-State actors to file claims directly. Furthermore, the ILEC would have the power to enforce its rulings, distinguishing it from the NJGMs that typically do not have the authority to order corrective measures and remedies. In the past, critics of an ILEC have been hesitant to create a body that would “only” hear environmental cases. This argument is obsolete at a time where forests are on fire and communities are deprived of their land and livelihoods. The preservation of lands and people are inextricably linked. Providing compensation and redress for environmental harms necessarily serves social and economic needs as well. An ILEC would not “just” adjudicate environmental cases but would also address land grabs and unjust land acquisitions. It will be born from an environmental justice movement rather than an environmental one.
With a staggering increase in land grabs worldwide, mass physical and economic displacement, climate change, and a host of other human rights abuses stemming from corporate activity, appetite is growing for an ILEC. Such an institution could provide project-affected communities with access to justice and enforce decisions. The inadequacy of suitable options, from judicial recourse to NJGMs, available to project-affected communities is no longer tenable. This, for one, is non-negotiable.
 Frequently Asked Questions, International Court of Justice, https://www.icj-cij.org/en/frequently-asked-questions.  Id.  Inter-American Court of Human Rights, ABC of the Inter-American Court of Human Rights: What, How, When and Why of the Inter-American Court of Human Rights: Frequently Asked Questions 16 (2019).  Véronique Van Der Plancke et al., Corporate Accountability for Human Rights Abuses: A Guide for Victims and NGOs on Recourse Mechanisms 193 (Antoine Bernard ed., 3d ed. 2016).  See, e.g., id.  Jennifer Zerk, Corporate Liability for Gross Human Rights Abuses: Towards a Fairer and More Effective System of Domestic Law Remedies, A report prepared for the Office of the UN High Commissioner for Human Rights Abuses 7 (2014).  The Centre for Research on Multinational Corporations (SOMO), The Patchwork of Non-Judicial Grievance Mechanisms 2 (2014).  National Contact Points for the OECD Guidelines for Multinational Enterprises, OECD, https://www.oecd.org/investment/mne/ncps.htm#:~:text=Governments%20adhering%20to%20the%20Guidelines,alleged%20non%2Dobservance%20of%20the.  SOMO, supra note 7.  Id.  Id. at 3.  E.g., id; Accountability Counsel, Recent Trends in Accountability: Charting the Course of Complaint Offices (2014). In the case of NCPs specifically, OECD Watch found that “only one percent of the 250 NCP complaints filed by communities, individuals and NGOs have resulted in an outcome that directly improved conditions for the victims of corporate conduct.” Caitlin Daniel et al., Remedy Remains Rare 19 (OECD Watch 2015).  Accountability Counsel, supra note 12.  Id.  SOMO, supra note 7, at 4.  Caitlin Daniel et al., supra note 12, at 22.  See, e.g., id. at 21-22.  George Pring & Catherine Pring, Environmental Courts & Tribunals: A Guide for Policy Makers 1 (UN Env’t Programme 2016).  Steinar Andresen, The Role of International Courts and Tribunals in Global Environmental Governance, Air & Space Power J.-Afr. & Francophonie, Sept. 2016, at 67, 75-76.  Id. at 76.  Id. at 76-77 The views expressed in this post represent the views of the post’s author only.