Extract

The general rules of international law applicable to inter-state dispute settlement apply to inter-state environmental disputes. That is, Article 33 of the United Nations Charter applies. It requires states to settle their disputes “by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice”. This means that states are bound to settle their disputes peacefully, but that they are free to use a procedure of their own choice to attain this end. It also means that states are not bound to settle their dispute by judicial means, in other words, via international courts or tribunals, including arbitral tribunals. In order for an international court or tribunal to have jurisdiction in a specific dispute the states parties to that dispute will have had to consent to the court or tribunal exercising its jurisdiction. It is generally agreed that states are reluctant to submit their disputes to judicial settlement procedures, probably because compared to other procedures for dispute settlement, the control that parties have over the outcome of the procedure is limited.

In case of disputes involving international environmental law, inter-state judicial procedures for the settlement of disputes present a number of drawbacks. First, these procedures tend to take place after the environmental damage has occurred. Second, inter-state judicial procedures tend to be confrontational whereas environmental degradation and unsustainable development, especially if linked to lack of technology and know-how or financial resources, may be better addressed through dialogue and...