China should back eco justice

A proposal for an international court for the environment offers China the opportunity to seize the moral and diplomatic high ground on environmental issues, writes Philip Riches.

The campaign for an international court for the environment (ICE) has the potential to transform the position of China in the environmental debate. 

The approach China decides to adopt in response to the proposal for an ICE will have a profound impact on those likely to use the court – be they states; businesses; non-state actors, such as NGOs; or individuals – as well as on the environment itself. In addition, the approach adopted seems likely to affect how China sees itself and how it is seen as a player in the international community.

Why would the Chinese leadership want to consider supporting the ICE proposal? After all, if the ICE is established as an institution mandated by international treaty, it could mean potential intrusions on China’s sovereignty and breach the dearly-held principle of non-interference in internal affairs.

Even if the ICE is established simply as a tribunal offering services to parties consenting to its jurisdiction, having individuals, businesses and communities in China seeking redress from a body not subject to the authority of the Chinese state might be thought unacceptable to Beijing. These are serious obstacles to securing China’s support for the ICE.

But there is still good reason to believe that China might support the ICE. How it plays out might be affected by who has the upper hand in Beijing: the “engagers”, who seek to use international norms and structures to help China’s development; or the “realpolitikers”, who assert a hard-nosed view of China’s increasingly important place in the world. Yet even the latter group may find the ICE useful. A snapshot of those reasons would include:

*The ICE provides significant scope for affected parties – be they the Chinese state itself, regional bodies, individuals or businesses – to seek to assert their international rights, including those deriving from the Stockholm and Rio Principles, not to be harmed by others’ development. Climate change is but one example: at the global level, there is good evidence to suggest that climate change is a significant cause of the increasingly precarious water supply issues in northern China. As a possible additional benefit, the ICE could provide an outlet for frustration among Chinese citizens with corruption and lack of enforcement of environmental rules at the provincial and local level.

*Chinese business is international; it needs international protection. The expansion of Chinese businesses overseas is well documented, particularly in mineral extraction, agriculture and infrastructure development in Africa. Cross-border environmental disputes and questions already arise concerning this booming economic activity. At present there is no obvious forum to determine those disputes or questions.

Recent arguments over the potential damage to the Serengeti National Park from the new railway being built from Uganda to the Tanzanian coast by the China Civil Engineering Construction Company (CCECC) illustrate this well. That dispute has been dealt with by political agreement, but this is not a sustainable approach. Businesses, with long-term investments, debt to repay, shareholders and deadlines, crave certainty – something that political negotiations, dependent on the whim of politicians, do not offer.

The ICE, on the other hand, offers an expert and impartial interpretation of a clearly enunciated body of law, which it will continue to develop as required by its users. The Chinese state has a direct interest in this certainty and predictability that the ICE can bring, whether as owner of some of these overseas businesses or as the ultimate interested party in the wellbeing of the Chinese individuals involved.

*China already agrees to be bound by international legal institutions. Chinese courts regularly enforce foreign judgments and arbitration awards in China. Chinese individuals and businesses, including those owned or controlled by the state, regularly participate in foreign litigation and arbitration before international courts and tribunals – international arbitration in London is one particularly good example. The Chinese state, as a party – directly or indirectly – to these foreign proceedings in international forums, regularly agrees to be bound by foreign or international determinations and makes financial payments when unsuccessful. Equally, when successful, it is happy to seek the help of these international or foreign institutions to enforce judgments and awards in its favour.

China’s approach appears to be a practical one. If economic growth, and thus internal stability, is helped by participation in these international forums, as it is, China will work with them and use them. Even if the ICE court mandated by international treaty might be a step too far in the immediate future, the model of the ICE as an arbitral tribunal used by those consenting to its jurisdiction is something which China could support and use to its advantage. China could permit its businesses and citizens to use the ICE, while keeping the state itself out of reach – a tentative initial step that would allow it to test the usefulness of the ICE before committing itself to any further support.

*Supporting the ICE offers China the chance to reassert itself as the leading voice for the developing world. China’s long-standing efforts to position itself as the leader of the developing world are under real threat. The UN climate-change conference in Durban in 2011 was but the latest example of a gulf opening between China and the global south, with China being portrayed as abandoning those most threatened by climate change in its hell-for-leather drive for growth. The irony of the formerly colonised poorest nations allying themselves with the former colonisers in the European Union cannot have been lost on Beijing. Support for the ICE does not have to mean wholehearted support for every radical scheme that is dreamt up to slow climate change, but it would help stem perceptions of China as having abandoned the global poor.

From wherever on the Chinese political spectrum one views the issue, there are many reasons why support for the ICE would be in China’s interests. Other issues will also determine whether and, if so, how and to what extent China will support the ICE. In particular, the development of Chinese civil society will play a key role, since it is grassroots organisations, taking their lead from their membership rather than from on high, which have so often proved to be the principal drivers of initiatives such as the ICE.

Although it is likely that it would be Chinese business that is the greatest cheerleader for the ICE at the outset – seeing it as providing clarity and certainty presently unavailable – in the longer term, it may well be Chinese civil society that determines the extent to which China is involved in and influences the ICE story.

Backgrounder: Why I am involved?

Over 20 years ago, I came upon a Greenpeace leaflet that, in a few lines, presented the life of 4.6 billion year-old earth as if it were 46 years old, with dinosaurs appearing last year, mammals eight months ago, modern humans about eight hours ago and the industrial revolution in the last minute. It brought home clearly how destructive man has been in such a short space of time. It began for me a lifelong fascination with the relationship between man and the environment, but also left unanswered the most important question: what could in fact be done?

I am now a lawyer. As my practice has developed, I have come to appreciate law’s powerful tool kit for repairing many of the deficiencies in society and how law is one of the few things that can fundamentally alter human behaviour: both directly, by regulating our actions; and indirectly, by establishing norms and by guiding us down certain paths. It crafts the framework of informal and formal standards by which we live. I have come to realise that one of the best ways of moderating man’s impact on the environment is to build legal frameworks that encourage that moderation.

Many countries have done this over the past few decades, with what are now mature environmental laws and respected environment courts. However, when environmental issues cross borders between countries, there remains a gap. There is no international environmental court to help guide human behaviour and to reconcile conflicting interests. Since so many serious environmental problems are cross-border, this is a serious gap.

This is the role the ICE seeks to play. It aims to use legal tools to build frameworks to help resolve international environmental issues and conflicts, including over: water use; sustainable development; and the rights of the unborn. Much of the ICE’s work will be about building trust, but it will also be about establishing norms by which we can minimise our negative impact on the environment at the international level. Without an institution that helps in this process, it seems clear that environmental conflicts will only increase.

Philip Riches is an international dispute resolution barrister and a director of ICE Coalition.