International Judicial Practice on the Environment: Questions of Legitimacy edited by Christina Voigt Published by Cambridge University Press, 2019, 476 pp., £85.00, hardback.

• Published date: 01 July 2020
• DOI: http://doi.org/10.1111/reel.12340
• Date: 01 July 2020
• Author: James Harrison

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reading to anybody interested in the relation between natural disas-

ters and the law.

ORCID

Jakub Handrlica https://orcid.org/0000-0003-2274-0221

Jakub Handrlica

Law Faculty, Charles University in Prague

DOI: 10 .1111/reel .12340

INTERNATIONAL JUDICIAL PRACTI CE ON THE

ENVIRONMENT: QUESTIONS OF LEGITIMACY

edited by Christina Voigt

Published by C ambridge Univer sity Press, 2019, 476 pp., £85.00, ha rdback.

Over the past de cade, there has bee n a steady growth in the n umber

of environmenta l disputes being a ddressed by inter national cour ts

and tribunals . Such disputes tend to raise comp lex questions of law

and fact. Ma ny environmental rule s are ambiguous or abst ract in na-

ture, leaving inte rpreters with a lot of latitude wh en giving content

to these rules . Environmental d isputes may also ra ise tensions be-

tween environ mental protec tion and other so cietal values , such as

economic liber alization or human rights. At on e extreme, such ten-

sions present th emselves as potent ial conflicts of n orms betwee n

different fi elds of international law, but, more co mmonly, such ten-

sions can arise in t he interpretation of a singl e rule. Alongside these

legal challenges, the science underpinning many environmental dis-

putes is often un certain. In the face of a ll of these challenges, ju dges

and arbitrato rs are expecte d to settle the dis pute in an author ita-

tive manner, whilst al so potentially deve loping the law for a mu ch

broader audie nce. This is no easy task and it has le d to accusations

of overreach and ju dicial activis m on the one hand, a nd timidity or

lack of expert ise in relation to key environm ental issues on the oth er

hand. This edite d collection sets out to explo re the procedur al and

substantive c hallenges faced b y international co urts and tri bunals

in deciding envir onmental dispu tes, comparing a nd contrastin g the

practices of different judicial institutions involved in the interpreta-

tion and applic ation of this growing body of law thr ough the lens of

legitimacy.

The concept of legit imacy is both com plex and conteste d, but

the editor does a n admirable job in the introduc tion of explaining

why this analyt ical framewo rk was chosen and wh at it means in

the context of the settlement of environmental disputes by inter-

national cour ts and tribun als. A single defin ition of legitima cy is

avoided in favour of a num ber of legitimac y questions or themes,

around which th e chapters of the bo ok are organized. T hese

questions ad dress a range of issue s, including bot h ‘procedural

legitimacy ’ and ‘substantive legitimacy ’. Each part of th e book re-

sponds to specif ic challenges: a ccess to courts i n environmenta l

cases; the role of scientific evidence and experts in environmental

litigation; the p owers of courts and tribun als to interpret environ-

mental norms a nd balance diff erent interest s inherent in the la w;

and the effec ts of judicial de cisions once rende red. In their ind i-

vidual chapter s, authors ref lect upon how th e practice of judi cial

institution s furthers our unders tanding of the challenges invol ved

in settling inte rnational envir onmental disp utes and what refor m

may be necessar y in order to increase the l egitimacy of the judicial

role in this contex t. This is not a book of high t heory; most chap ters

draw upon the eme rging body of case law and the de tailed proce-

dural rules of int ernational cour ts and trib unals in order to make

practica l observatio ns on the pract ice of internationa l courts and

tribunals, or t o advance concrete recommen dations for changes in

doctrine.

It is difficult t o capture the full ra nge of arguments in th is volume,

given the variet y of themes and dif ferent judicial bodi es that are cov-

ered. Indeed , the book includ es not only judici al practice of cou rts

and tribunals o perating within the fr amework of public internat ional

law, but significa nt attention is also paid to Eur opean Union (EU) law,

particular ly in the part o n what is termed ‘pro cedural legitim acy’,

where all three c hapters are concerned wi th access to justice before

EU courts. In t heir respective cha pters, Krämer, Rath and S choukens

argue that the ap proach taken to ac cess to courts i n the EU often

fails to promote env ironmental jus tice and the Cou rt of Justice of

the European Uni on (CJEU) has at time s been contradi ctory in it s

practice by pr omoting access to nationa l courts, whils t taking a more

restricti ve approach to access to EU ju dicial bodies. All th ree authors

agree that this po sition is untenable, and t hey advocate for a change

of approach. Wh ilst these are impor tant observatio ns, other aspect s

of ‘procedural le gitimacy’ be fore other intern ational court s and tri-

bunals are lef t unaddressed, despite t he fact that there are inte rest-

ing questions a bout the role of amicus curiae in international di spute

settlement a nd how to integrate considerat ions of community inter-

ests into contentious proceed ings.

Other part s of the book achieve a better ba lance, drawing upon

more varied pr actice of international cou rts and tribunals. A s would

be expected , the Internation al Court of Just ice (ICJ) receive s par-

ticular attent ion, but more spe cialist cour ts and tribuna ls are also