Reading 14: Stevens
Stephens, Tim. (2009). "Introduction" and "Chapter 4: International courts and environmental governance" in: International Courts and Environmental Protection. Cambridge University Press.
International environmental law has come of age, yet the global environment continues to deteriorate. The challenge of the twenty-first century is to reverse this process by ensuring that governments comply fully with their obligations, and progressively assume stricter duties to preserve the environment. This book is the first comprehensive examination of international environmental litigation. Analysing the spectrum of adjudicative bodies that are engaged in the resolution of environmental disputes, it offers a reappraisal of their relevance in contemporary contexts. The book critiques the contribution that arbitral awards and judicial decisions have made to the development of environmental law, and considers the looming challenges for international litigation. With its unique combination of scholarly analysis and practical discussion, this work is especially relevant to an era in which environmental matters are increasingly being brought before international jurisdictions, and will be of great interest to students and scholars engaged with this vital Field.
Questions for discussion
- The community interest character of environmental protection as well as the overriding need to prevent environmental harm, rather than devising punitive measures once harm has occurred, have pulled the adjudicative landscape in international environmental law into two, different directions: On the hand, there are an increasing number of international courts dealing with an increasing amount of litigation on environmental issues. On the other hand, international environmental law has developed so called “in-house”, treaty-based non-compliance mechanisms. While the first avenue leads to more confrontational, adversarial processes, resulting in dichotomous results, does the latter facilitate greater space for cooperation among and collective learning by states.Which legitimacy concerns/arguments support the development in one or the other direction? Can these trends be reconciled? In which circumstances (if any) can courts be more effective in securing environmental protection?
- International environmental adjudication is based on an uncoordinated patchwork of jurisdictions, several of which operate in competition with one another. Various international courts and tribunals have jurisdictions extending to environmental claims/aspects. These ICT include courts with general competence and also institutions with focused subject-matter jurisdiction (which is NOT environmental). Such proliferation and patchwork raises questions, such as whether non-environmental courts/tribunals may have a negative influence in the (a) development of international environmental law by developing rules and principles that privilege their non-environmental agendas, and (b) by disfavouring effective environmental protection. Which legitimacy concerns raises the fact that non-environmental courts deal with environmental matters? How could they be addressed?
- It can be stated that the judicial treatment of environmental disputes has more often than not been unsatisfactory. Adjudicatory opportunities for courts to develop a jurisprudence that advances issues of ecological sustainability have often not been taken, or have been avoided. From a legitimacy point of view, should courts take an “activist” stance to address problems and issues that have not been adequately dealt with through legislative developments (i.e. “fill the gap”)? Or should courts retain a “formalistic” approach, applying the law as it is found and bringing the issue/dispute to a close (even if it is possible to adopt an interpretation or application of the law that more effectively advances environmental objectives)?