International Environmental Litigation: What Future?

• DOI: http://doi.org/10.1111/1467-9388.00120
• Published date: 01 April 1998
• Date: 01 April 1998
• Author: Philippe Sands

Volume 7 Issue 1 1998 International Environmental Litigation

Philippe Sands

Introduction

Over the past decade two sets of developments have

combined to set the scene for more international

environmental litigation. The f‌irst is the very rapid

increase in the body of rules of international environ-

mental law establishing substantive and procedural

norms.

1

The second is the increased case-load of the

established judicial and quasi-judicial bodies

(International Court of Justice (ICJ), European Court of

Justice (ECJ), European Court of Human Rights, Inter-

national Centre for the Settlement of Investment

Disputes), the creation of a number of new such bodies

(Appellate Body of the World Trade Organization, Inter-

national Tribunal for the Law of the Sea, World Bank

Inspection Panel, non-compliance procedure of the Mon-

treal Protocol on Substances that Deplete the Ozone

Layer), and the number of cases being brought before

these new bodies.

2

These two features of modern inter-

national society conspire to make it likely that in the

future we can expect more international environmental

cases to be reported, to accompany the developments

before various municipal courts which are discussed in

this issue of RECIEL. And, possibly, to guide and assist

municipal courts in their own decision-making.

These developments raise a number of questions. Two

strike me as being particularly important. Are existing

(or new) international courts adequately equipped to

address the peculiarities of international environmental

litigation? And what happens where two or more courts

are presented with the same (or a similar) question but

reach different conclusions? These questions present

issues which touch upon the proper function of inter-

national courts and tribunals and the unity (or

coherence) of the international legal order, matters

which go beyond the environmental f‌ield.

I have written previously about the capacity and willing-

ness of two international courts and tribunals – the ECJ

and the ICJ – to address environmental issues.

3

I posed

three questions: had these courts shown a willingness

to recognize the place of environmental objectives in the

international legal order? had they shown a willingness

to give environmental protection objective precedence

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1

over other societal objectives? and had they appreciated

the particular characteristics of environmental issues?

Writing in 1995 I noted that ‘[t]he ICJ is yet to make a

really signif‌icant contribution to the development of

international environmental law, as opposed to simply

conf‌irming that environmental obligations exist’.

4

I con-

cluded that on the basis of the very limited case-law thus

far it was not possible to reach conclusions as to the

likely direction the Court would take, although the estab-

lishment of an Environmental Chamber in 1993 indicated

the Court’s recognition of the growing political impor-

tance of the environment in international relations. The

decision to establish the Chamber may have been mot-

ivated by the desire to pre-empt the establishment of a

specialized International Environmental Court. In sharp

contrast, by 1995 the European Court had already estab-

lished a signif‌icant environmental case-load of over 150

cases. I concluded that:

The ECJ has recognized the place which environmental protec-

tion has in the Community legal order. It has given (on occasion)

environmental protection objectives an equal (or occasionally

greater) weight over entrenched economic and trade objectives.

And it has demonstrated a willingness to recognize and act upon

some of the special characteristics of environmental issues.

5

Recent Developments in the

Jurisprudence of

International Courts and

Tribunals

Since 1995 there have been signif‌icant developments at

both the ICJ and ECJ, as well as in others. For its part the

ICJ has been presented with environmental arguments in

no less than three cases. In September 1995 it declined

to accede to New Zealand’s Request to consider the

legality of the resumption by France of underground

nuclear testing.

6

Nevertheless, it ruled that its Order was

‘without prejudice to the obligations of States to respect

and protect the natural environment, obligations to

which both New Zealand and France have in the present

instance reaff‌irmed their commitment’.

7

Reference to

those pleadings suggests that the Court may have had

in mind, amongst others, Principle 21 of the 1972 Stock-