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7 Rev. Eur. Comp. & Int'l Envtl. L. 1 (1998)

handle is hein.journals/reel7 and id is 1 raw text is: 


Volume 7 Issue 1 1998                                                       ItrainlEvrnetlltgto


   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.' 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.' 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


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.'


  Recent Developments in the

  Jurisprudence of
  International Courts and

  Tribunals

Since 1995 there have been significant developments at
both the ICJand ECJ, as well as in others. For its part the
ICJhas 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.' 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'.' Reference to
those pleadings suggests that the Court may have had
in mind, amongst others, Principle 21 of the 1972 Stock-


@ Blackwell Publishers Ltd. 1998, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.


1


                   IIerlNationalI


                Environmental



Litigation:m What Future?




                         PAhiope Sands


International Environmental Litigation

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