The environment’s protection is not only undisputably vital but also increasingly urgent. Yet, steadily growing reliance on international dispute settlement as environmental protection means is not uncontroversial, raising three distinct sets of issues regarding: the nature of adjudicative fora and the environment, as determinant of the former’s suitability to protect the latter (ontological issues); wider assumptions and frameworks, notably concerning law-making and law-ascertainment (methodological issues); and processes for creating and implementing environmental obligations under general and particular regimes of international law, in turn influenced by the forecited ontological and methodological stances (processual issues).
These issues lie at the core of unsettled debates in scholarly literature, as seen in the works reviewed in this essay, on international dispute settlement’s suitability for environmental protection: Sobenes, Mead, and Samson’s edited volume, entitled The Environment Through the Lens of International Courts and Tribunals, and Bendel’s monograph, entitled Litigating the Environment: Process and Procedure Before International Courts and Tribunals.Footnote 1 Since the works reviewed in this essay appeared, various international courts and tribunals have issued, in the exercise of their advisory or contentious jurisdiction, major pronouncements specifically addressing climate change, including, most prominently, the United Nations (UN) International Court of Justice (ICJ),Footnote 2 the International Tribunal for the Law of the Sea (ITLOS),Footnote 3 the Grand Chamber of the European Court of Human Rights (ECtHR),Footnote 4 and the Inter-American Court of Human Rights (IACtHR).Footnote 5 Although climate change is but one among the many environmental challenges addressed by the reviewed works, these judicial developments lend even further credence to the significance of the reviewed works’ central theme, showing international dispute settlement is assuming an increasingly more prominent role in the ways the international community seeks to tackle the world’s gravest environmental challenges.
The remainder of this essay comprises three major parts, dealing with each of the three sets of issues identified above, followed by some conclusory reflections.
I. Ontological issues
The very questions of what the environment and international dispute settlement “are” underpin debates about the latter’s suitability for environmental protection. The presumably inherent “anthropocentric” character of international law and, by extension, of international dispute settlement, is widely regarded as determining whether and, if so, to what extent, international dispute settlement fora can protect the environment.
The ontological conceptions undergirding international dispute settlement involve competing anthropocentricFootnote 6 and eco-centric approaches that, despite being abstract and arguably “ideological”,Footnote 7 can determine rather “technical” outcomes, like compensation for damages.Footnote 8
The ways disputing parties formulate their disputes are arguably anthropocentric: insofar as they determine how adjudicative fora frame their jurisdiction over, and the law applicable to, those disputes,Footnote 9 they may subordinate environmental interests to anthropocentric ones.Footnote 10 This subordination, however, is not confined to ad hoc fora. Under Article 8(2)(b)(iv) of the Statute of the International Criminal Court (ICC), the environment is arguably neglected, with environmental harm still being conceptualised as warfare’s “unfortunate bi-product”.Footnote 11 In turn, the ICC would be ill suited for prosecuting environmentally harmful conduct: intentional environmental destruction is criminalised only if civilians, as opposed to the environment, are targeted.Footnote 12 Similarly, since the European Convention on Human Rights (ECHR) only protects “living” persons, the ECtHR would presumably prove unsuitable as an environmental protection forum.Footnote 13
The root of, yet preeminent means to overcome, anthropocentrism arguably lies in treaty interpretation.Footnote 14 Such reliance is understandable for, as the ICJ has recently recalled, “when several rules bear on a single issue, they should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations”.Footnote 15 A hermeneutical shift can prove decisive, as exemplified by recent pronouncements of the IACtHR,Footnote 16 notably its “Advisory Opinion on Environment and Human Rights” (AO 23).Footnote 17 However, AO 23 should not be overestimated, lest other regional human rights courts’ seminal role be neglected: indeed, AO 23 arguably drew inspiration from the African Court of Human and Peoples’ Rights’ decision in CERAC and CESR v. Nigeria.Footnote 18 And, while AO 23 features among other “pioneering” judicial pronouncements reversing the anthropocentrism often ascribed to international human rights regimes,Footnote 19 such reversal is perhaps more evident in ANAW v. Tanzania,Footnote 20 in which the East African Court of Justice (EACJ) first upheld an “obligation to protect the environment per se”.Footnote 21
Granting legal personality to nature, which alternatively addresses anthropocentrism, has ontological implications, refashioning both legal personhood and nature, by according the latter to the former, as seen in the IACtHR’s practice.Footnote 22
The nature of international dispute settlement fora, notably whether they need be third-party, adjudicative, and, more precisely, judicial to be suitable for environmental protection, raises vexed issues.
Third-party international dispute settlement comprises non-adjudicative fora, paramount among which is the UN Security Council (UNSC).Footnote 23 The UNSC, exercising its UN Charter Chapter VII powers, has addressed environmental issues, notably by creating the UN Compensation Commission (UNCC), to repair those injured by Iraq’s invasion and occupation of Kuwait.Footnote 24
Turning to adjudicative fora, while the ICJ is typically portrayed as their epitome, other adjudicative fora exist “beyond the Great Hall of Justice”.Footnote 25 In this vein, whether all international courts and tribunals need be “judicial” raises separate, more controversial, issues. Yet, Bendel suggests, adjudicative fora need be “judicial”: referring to “interstate tribunals, namely the ICJ, the ITLOS, or arbitration”, Bendel argues, “that states accept the character of such entities as judicial organs, and […] that judicial bodies have inherent powers […], is critical for the success of the international judiciary”.Footnote 26 Bendel’s narrow characterisation of adjudicative fora, however, is problematic: arbitral, like judicial, bodies exhibit qualities Bendel confines to judicial ones, notably inherent powers.
II. Methodological issues
The methods for identifying and interpreting environmental rules, as well as for implementing obligations arising thereunder,Footnote 27 raise issues concerning a forum’s suitability for environmental protection.
These issues first and foremost revolve around the sources of environmental rules, given, as McGarry notes, “the difficulty of systematizing the sources of law classified in Article 38(1) of the ICJ Statute”.Footnote 28 McGarry’s remark implies that provision’s classification of sources is applicable qua treaty in settings beyond the ICJ.Footnote 29 Yet, the general applicability of the rules reflected in ICJ Statute Article 38(1) should not be uncritically assumed but seen in light of their use in general practice – arguably accepted as law and, thus, qua general custom.Footnote 30
The role of international “pronouncements”, a category encompassing arbitral or judicial decisions and (judicial, yet non-binding) advisory opinions, raises various controversies germane to a forum’s suitability for environmental protection. The relevance of international pronouncements to the methodological issues considered in this part mainly stems from the ways they are relied on to identify, interpret, and apply environmental rules. This section, thus, is not concerned with international dispute settlement’s output, notably the bearing of (un)enforceability of arbitral and judicial decisions on the (un)suitability of international dispute settlement fora for environmental protection, in terms of their (in)effectiveness (a matter to which Part III turns); instead, it focuses on the “methods” employed in international adjudicative processes and, in particular, whether and to what extent international adjudicators (can) validly rely on international pronouncements as they set out to identify, interpret, and apply environmental rules. As discussed below, the ways international pronouncements tend to be relied on to articulate the ascertainment of certain environmental principles or rules, which arguably lack a legal basis (or bases) in treaty, custom, or general principles of law, may lead to the contestation of the law-ascertainment methods at issue and, ultimately, culminate in challenges to the suitability of international adjudicative fora on “methodological” grounds.
Various rights invoked for environmental protection purposes, despite lacking an expressly recognised treaty-based status, are often asserted to have such status exclusively based on international pronouncements. Despite acknowledging that, like other treaties and non-binding instruments, the American Convention on Human Rights does not include environmental rights, Feria-Tinta affirms, a “remedy” for such omission lies in the IACtHR’s judgment in Lhaka Honhat v Argentina,Footnote 31 which, Feria-Tinta asserts, “[d]oubtlessly […] will be followed by other such decisions”.Footnote 32 However, Feria-Tinta’s assessment unwarrantedly assumes the Lhaka Honhat judgment will necessarily be upheld in future IACtHR decisions, uncritically neglecting its weaknesses: the IACtHR’s approach is based on “the pro homine principle”, a (curiously anthropocentric) maxim that establishes “the scope of a right which has already been recognized, but does not extend to providing a legal basis for that right’s recognition”;Footnote 33 also, the majority supporting it “prevailed by virtue of the Court’s incumbent president’s casting vote”.Footnote 34
The customary status of certain rules is likewise often grounded on an exaggerated, if not exclusive, reliance on international decisions. While “State practice and the consideration given by ICTs suggest that the [precautionary] principle is slowly gaining wider recognition […] as […] customary international law”, Sobenes and Devaney argue, “[i]f this trend continues, it may not take long for ICTs to recognise the principle as a customary rule”.Footnote 35 Their argument implies international courts and tribunals’ recognition of that trend suffices, independently of states’ acceptance thereof as law. Likewise, Atapattu submits, the ICJ’s “advisory opinion on the Legality of Nuclear Weapons consolidated the customary status of Principle 21”.Footnote 36 These approaches not only overlook the absence of a stare decisis doctrine in international law but also are inconsistent with the “two-element approach” to custom-identification, insofar as neither general practice attributable to, nor acceptance as law by, states are established.Footnote 37 Yet, as Bodansky and Nguyen respectively observe, international court and tribunals’ proclivity ‘to pay lip-service to environmental principles’Footnote 38 may lead to cementing “ideas often considered part of customary international law but which do not reflect state practice”.Footnote 39
General principles of law are often neglected, despite the above inconsistencies in customary international law-identification. For instance, Atapattu ponders whether Principle 21’s legal status can be justified without resorting to custom. Despite arguing Principle 21 originates “in the common law principle of sic utere tuo ut alienum non laedus”,Footnote 40 Atapattu does not consider whether it could be a general principle of law. Sobenes and Devaney equally neglect general principles of law. Indeed, their assessment of the “common but differentiated responsibility” principle simply concludes that, “though this principle […] has featured in environmental litigation at the national level – […] which has, international transboundary implications – it is virtually unaddressed in the jurisprudence of the ICTs”.Footnote 41 Their analysis not only reinstates their almost exclusive reliance on international decisions but also exemplifies how potentially relevant state practice, arising in connection with national litigation, whether accepted as customary law or recognised as a general principle of law, is often neglected.
General principles of law, however, should not be overlooked. In ANAW, the EACJ considered general international law relating to an environmental dispute arising under the Treaty establishing the East African Community (EAC Treaty).Footnote 42 The EACJ held EAC Treaty Article 130(1) enables “compliance with other international commitments than those contained in the EAC Treaty”.Footnote 43 The EACJ’s Appellate Division considered such non-EAC Treaty, yet treaty-based, principles “as reflecting general principles of law in the meaning of Article 38.1c) of the Statute of the ICJ”.Footnote 44
General principles of law are often portrayed as performing a purely “gap-filling” role, as a source of law applicable only by default, absent specific applicable treaty-based or custom-based law.Footnote 45 Yet, general principles of law may arguably also operate as sources of obligation.Footnote 46
The distinction between source of law and source of obligation may shed light on formal sources’ diverse roles in environmental protection.Footnote 47 Bendel, for instance, correctly states “international courts and tribunals cannot legislate” yet considers they “make law, especially when dealing with inevitable gaps”.Footnote 48 Bendel distinguishes between “general law-making in the legislative sense and creating a rule applicable to the parties to a particular dispute”.Footnote 49 This statement not only relies on an artificial, somewhat tautological subcategory of law-making that is “legislative” but also fails to recognise international decisions apply existing legal rules, instead of creating new ones. Indeed, as Bendel observes, international courts and tribunals’ power “is shaped by the specific circumstances under dispute and at the parties’ request”, and “judicial law-making”, after all, “cannot be conceived a priori”.Footnote 50 Hence, Bendel concludes, “judicial decisions are not a formal source of law”.Footnote 51 Yet, Bendel’s conclusion might neglect international decisions’ role as formal sources of obligation, creating concrete legal relations for disputing parties, while applying the applicable law to a given dispute. Indeed, as Bendel’s analysis of potential interactions between compliance committees under multilateral environmental treaties and the ICJ shows, ICJ judgments may operate as sources of obligations, with compliance committees serving as “enforcers of the operative part of a judgment”.Footnote 52
The very distinction between jurisdiction and applicable law also raises methodological issues, as illustrated by Hébert’s analysis.Footnote 53 Yet, far from clarifying, Hébert’s analysis proves confusing. Hébert defines “norms related to jurisdiction as ‘norms of jurisdiction’, and […] norms that a particular tribunal may apply as ‘norms of applicable law’”.Footnote 54 This definition neglects that, in ascertaining its jurisdiction, a tribunal applies the (applicable) law governing its jurisdiction. Hébert further states “norms found in a treaty on the basis of which the jurisdiction of a court […] would be established are […] norms of jurisdiction”.Footnote 55 This statement risks conflating source of jurisdiction and source of obligation. This is perhaps due to the usual (albeit not necessary) confluence of both sources in the same instrument, notably a treaty creating obligations and conferring jurisdictional powers (possibly, though not necessarily, confining jurisdiction to disputes involving breaches of that treaty’s obligations). Yet, a treaty may incorporate sources of obligation external to that treaty, most notably via its most-favoured-nation clause, and grant jurisdictional power over breaches of such extra-treaty obligations.
III. Processual issues
The processes for creating and implementing international environmental protection obligations involve a wide array of regimes of international law, general and particular,Footnote 56 and participants, ranging from states and international organisations to non-governmental organisations and (increasingly) individuals, ultimately affected by environmental degradation.Footnote 57
State consent, however, remains essential for creating (those) international obligations and vesting jurisdiction in international adjudicative fora, whether arbitral or judicial.Footnote 58 Against this background, Spijkers explores “world law tradition[s]” as a means of justifying non-consensual environmental obligations.Footnote 59 World-law traditions arguably empower “judges […] to use their authority […] to claim a degree of independence from the will of States when identifying, interpreting and applying […] international law”.Footnote 60 While such “world-law traditions” raise the spectre of “‘dikastocracy’ […], […] a world ruled by judges”,Footnote 61 reliance on separate opinions as focal points for “[t]he scholarly community […] to rally round”, without “causing reputational damage to ‘their’ court”, would arguably address dikastocracy’s perils.Footnote 62
The above tendency towards predominantly, if not exclusively, grounding customary international law-identification on international (mostly judicial) pronouncements (an issue among other methodological problems examined above) calls for a reversal, so as to properly account for states’ position (and, to varying, albeit limited, degrees, that of international organisations in whom law-making powers are vested) in law-making processes, as law-makers.Footnote 63 Such a reversal is offered by Mead’s and Maxwell’s contribution, refreshingly defending an approach that “departs from the focus […] on international courts and tribunals and looks instead at […] national courts”,Footnote 64 since “international courts and tribunals are by no means the only site of international law activity”.Footnote 65 Indeed, “[n]ational courts play a dual role”, for they “enforce” and “are […] ‘agents of development’ of international law”.Footnote 66 The latter role, in turn, stems from the place “domestic jurisprudence” has in the “development of custom”:Footnote 67 under ICJ Statute Article 38(1)(b), “domestic judgments can be evidence of State practice and/or opinio juris”.Footnote 68
Whether and to what extent an adjudicative forum allows for participation by non-state or non-disputing parties is increasingly portrayed as conditioning that forum’s suitability for environmental protection. Indeed, granting procedural rights to redress limited access to adjudicative fora has been widely advocated, mostly within regional regimes.Footnote 69
The “public law dimension” of disputes with environmental elements arguably justifies such greater access to adjudicative fora.Footnote 70 In this vein, the benefits of arbitral over judicial fora, notably investor-state dispute settlement (ISDS), have increasingly garnered attention.Footnote 71 Unlike existing interstate adjudicative fora, international arbitration can allow for non-state participants.Footnote 72 In particular, ISDS proves more suitable than some forms of interstate arbitration, as exemplified by United Nations Convention on the Law of the Sea (UNCLOS) Annex VII arbitral tribunals, which have addressed issues of “access and participation by non-parties” in marine environment protection disputes.Footnote 73 By contrast to those UNCLOS Annex VII tribunals’ reluctance to admit unsolicited amicus curiae submissions,Footnote 74 ISDS has displayed openness to non-disputing party participation.Footnote 75 ISDS arbitral tribunals’ proclivity towards non-disputing party participation may arguably be due to not only contextual factors, notably the “backlash” against ISDS’s “lack of transparency and legitimacy”,Footnote 76 but also ISDS’s very nature.Footnote 77 Of course, ISDS’s benefits do not detract from its limitations: for instance, the fact that disputing parties are “directly responsible for funding” can arguably impair ISDS’s public interest role.Footnote 78
The debates on access to adjudicative fora raise an important issue concerning the relationship between the nature of an adjudicative forum, as a procedural feature of a particular (substantive law) regime, and that particular regime’s suitability to implement environmental obligations.Footnote 79
In particular, adjudicative fora within the particular regimes on human rights and foreign investment (ISDS) have features other than greater procedural access rendering them particularly suitable for environmental protection. In this sense, the distinction between inward-oriented and outward-oriented obligations, originally developed by an International Law Association (ILA) study group, may prove pertinent.Footnote 80 Indeed, by contrast to international law’s traditional interstate dimension, which implied “norms were generally ‘outward-looking’”, the increasing international regulation of “affairs […] within the domestic legal order” has resulted in a “corresponding rise in ‘inward-looking’ international norms”.Footnote 81 Inward-looking obligations arise under not only “human rights law which imposes obligations on States with respect to individuals within their jurisdiction, but […] also […] international environmental law”.Footnote 82 Likewise, investment treaties create “inward-looking” obligations for host states vis-à-vis foreign investors and their investments within their territories, whose “environmental impacts” may be subject to ISDS.Footnote 83
Other processual aspects also involve particular regime interactions, such as issues concerning evidentiary burdens under specific treaty-based liability regimes.Footnote 84 General regimes, for their part, also interact with particular regimes,Footnote 85 notably by framing the operation of such particular regimes to varying, though at some point indispensable, degrees.Footnote 86 The law of international responsibility, codified in the Articles on Responsibility of States for Internationally Wrongful Acts,Footnote 87 is paramount among those general regimes,Footnote 88 alongside the law of treaties, as codified in the Vienna Convention on the Law of Treaties.Footnote 89
Yet, whether and to what extent the law of international responsibility allows for adequately remedying environmental harm raises questions as to the suitability of (probably all international) adjudicative fora. Fitzmaurice contends that, while the ICJ has “ascertained that damage to the environment itself is compensable”,Footnote 90 its restrictive approach to compensation has “focused only on one form of repairing environmental harm”.Footnote 91 More generally, Fitzmaurice submits, the law of international responsibility’s role to remedy “transboundary harm is currently limited” since “non-quantifiable, non-individual harm to the environment […] cannot be remedied based on available methods of reparation”.Footnote 92 And, more fundamentally, basic “components of international responsibility” may prove ill suited to address “environmental harm”.Footnote 93
The implementation of international obligations through international dispute settlement culminates in the enforcement of international decisions, whether arbitral or judicial. Hence, last, but by all means not least, enforceability is an important, distinctly processual feature determining an adjudicative forum’s suitability for environmental protection (as anticipated in Part II’s analysis of related “methodological” issues). In this vein, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral AwardsFootnote 94 creates a procedural regime suitable for environmental protection,Footnote 95 given the “ease of enforceability” of arbitral awards thereunder,Footnote 96 by contrast to various limitations for enforcing international judicial (and interstate) arbitral decisions. The NYC performs not only a “facilitative” role but also a “preventive” one. In its facilitative capacity, the NYC “imposes a general obligation on State courts to recognize and enforce international arbitral awards”,Footnote 97 rendering their enforceability the “most valuable characteristic” of arbitral fora and, more pertinently, “an important benefit in […] environmental disputes”.Footnote 98 In its preventive capacity, the NYC may preclude the enforcement of arbitral awards jeopardising environmental protection.Footnote 99 Indeed, although such a situation may be “highly unlikely”, the “enforcement of such an award could be refused […] on the ground of public policy” under the NYC.Footnote 100
IV. Conclusion
This essay has provided a critical review of recent scholarship on international dispute settlement’s suitability for environmental protection, notably in terms of commonly faced ontological, methodological and processual issues.
Part I has considered ontological issues and shown that, despite a trend towards submitting disputes with environmental elements to various international courts and tribunals, the main obstacle for those adjudicative fora to provide effective means for environmental protection lies in their presumably inherent “anthropocentric” orientation. Solutions to these limitations range from hermeneutic adaptation to legal fictions, notably granting nature legal personality. The feasibility of these solutions, for now adopted regionally, remains to be seen.
Part II has turned to methodological issues and revealed glaring inconsistencies between law-ascertainment methods advocated by the scholarship reviewed and the general regimes on law-ascertainment. More fundamentally, it has rendered tangible another ontological issue: more than being “anthropocentric”, international law is assumed or asserted to be primordially “judge-made”, raising the spectre of “dikastocracy”, despite its pre-eminently state-centric nature. This conundrum, in turn, raises the wider question of whether the judiciary, national or international, should be the focal point of or catalyst for solutions requiring engagement by public and private entities, at all levels, globally and locally.
Part III has examined processual issues, concerning the processes for creating and implementing international environmental protection obligations. It has considered interactions among participants in such processes and among relevant general and particular international law regimes. It has notably focused on schools of thought advocating various reversals of perspective that promisingly address some of the paradoxes observed in Parts I and II: notably, a shift of focus away from judicial to arbitral fora (the latter allowing for (greater) non-state or non-disputing party participation and enforceability of international decisions) and from purported “judge-made” law to law-making processes and law-ascertainment methods properly accounting for states’ general practice, primarily as developed in domestic national environmental litigation, accepted as law by states, as (customary) law-makers proper. It has lastly considered implementation processes and emphasised the greater enforceability of arbitral awards over that of other (international) judicial decisions, as a crucial processual factor determining an adjudicative forum’s suitability for environmental protection.
Acknowledgements
This manuscript builds on research conducted during the author’s trimestral position as Visiting Research Professor at the Universidad Complutense de Madrid, in Madrid, Spain, during the summer of 2024.
Funding statement
None.
Competing interests
None.
Diego MEJÍA-LEMOS holds a Distinguished Research Associate Professorship at Xi’an Jiaotong University School of Law, Xi’an, China.
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