Are International Courts the Best Adjudicators of Environmental Disputes?

Encyclopedia of Environmental Law: Volume II, 2016

Hebrew University of Jerusalem Legal Research Paper No. 17-24

12 Pages Posted: 6 Sep 2016 Last revised: 1 Jun 2017

Date Written: August 31, 2016

Abstract

In submitting disputes over environmental harms to an international court or tribunal, the parties to the conflict seek a workable remedy for the issue(s) that triggered the action. Environmental disputes are a relatively recent class of cases that have been litigated in international courts. Indeed, it has only been over the past two decades that these disputes have found their way onto the dockets of international courts. On the other hand, the adjudication of environmental and natural resources cases, by arbitral tribunals, has long-standing origins. Four of the earliest recorded cases are the arbitrations of the Bering Fur Seals Case (US/UK) (1893), the Chamizal Arbitration (US/Mexico) (1911), The Trail Smelter Case (US/Canada) Arbitration (1941) and the Lac Lanoux Case (Spain/France) (1957) dispute. Each of the foregoing arbitrations yielded a remedy. In contrast, the International Court of Justice (ICJ) has to date, at best, provided facile or questionable remedies in the environmental disputes that it has adjudicated.

This Article is devoted to the adjudication of environmental issues that have come before both the ICJ and the International Tribunal for the Law of the Sea (ITLOS) with a specific focus on international law remedies issued by these two bodies. Initially, it analyses disputes adjudicated by the ICJ, while reviewing their outcome and the remedies the Court issued. It then evaluates three disputes adjudicated by the ITLOS. Finally, it compares the two systems, and suggests that ad hoc arbitration may be the better course for states litigating environmental disputes.

Keywords: Adjudication, ad hoc arbitral tribunals, environmental disputes, the International Court of Justice, the International Tribunal for the Law of the Sea, Remedies, Precautionary Principle, International Law Commission

JEL Classification: D74, D81, F51, F53, F55, K10. K19, K32, K33, Q28, Q30

Suggested Citation

Kornfeld, Itzchak E., Are International Courts the Best Adjudicators of Environmental Disputes? (August 31, 2016). Encyclopedia of Environmental Law: Volume II, 2016, Hebrew University of Jerusalem Legal Research Paper No. 17-24, Available at SSRN: https://ssrn.com/abstract=2832887

Itzchak E. Kornfeld (Contact Author)

Environmental Consultant ( email )

Rabin 17
Ma'alot Tarshicha, IL 21011 91905
Israel

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