Environmental disputes in international courts and tribunals: overcoming the obstacles through judicial adaption
Embargo end date06/07/2018
International law regulating the protection of the environment has grown exponentially over the years, with the adoption of many conventions covering the protection of specific environmental issues at the global, regional and bilateral levels. The variety of rules and types of protection is vast, and the question then is how to resolve potential conflicts. Within the field of interstate dispute settlement, the mechanisms that exist to solve international environment conflicts present a critical pressure point. Instead of a smooth process of adjudication, conducive to timely judgments that benefit all parties, a disjointed system offering more stumbling blocks than solutions seems to exist. There is this idea that the interstate judicial settlement is old-fashioned, and therefore inadequate to respond to the new legal developments in international environmental law. This pessimistic view on the existing mechanisms and the development of parallel theories on how to achieve greater compliance with environmental rules have consequently led to the creation of alternative types of conflict resolution mechanisms, labelled as non-compliance procedures. Indeed, it is true to say that the roles of international courts and tribunals in environmental disputes have been challenged by certain specific features of environmental disputes, bringing into question their usefulness and effectiveness. However, we should not be too hasty in dismissing the role of courts and tribunals in this context. This thesis seeks to investigate whether there is a place on the international stage for international courts and tribunals when it comes to solving environmental disputes. In doing so, the analysis focuses on the design of interstate adjudication and arbitration. Some judicial mechanisms which are often not considered could be adequately used in the context of international environmental law. By concentrating on the various relevant legal tools available to international judicial bodies, this thesis argues that international courts and tribunals can be used favourably in an environmental context. This thesis adopts three main perspectives from which the role of international courts and tribunals is assessed. First, the analysis concentrates on how the judicial procedures can be triggered (or the question “how to get in”). Then it looks at the mechanisms and procedural problems attached to the judicial bodies (or “once you are in”). Finally, the research focuses on the location of judicial bodies within the broader dispute settlement regime relevant for the application of international environmental law (or “in/out relationships”). With these three elements, it is then possible to evaluate the role international courts and tribunals play, their limitations and their advantages.