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Advanced Introduction to International Environmental Law

Ellen Hey

This Advanced Introduction provides both an overview and a critical assessment of international environmental law (IEL) written by one of the leading authorities in this field. An invaluable entry point to this complex area of the law, the book pinpoints essential principles and institutions and distils the vast and often technical corpus of legal doctrine whilst also offering insights that stimulate critical thinking. Covering the origins, substantive content, institutional structure and accountability mechanisms of IEL, the book discusses substantive and procedural fairness, thus exploring questions of distributive justice, accountability and legitimacy. Providing an invaluable entry point to this complex area of the law, this book will prove a useful resource for professors, practitioners and policy-makers needing to quickly gain an understanding of the core principles of this multi-faceted topic. It will also serve as a stimulating introductory text for both undergraduate and postgraduate courses.
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6 Dispute settlement and accountability mechanisms

Ellen Hey

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...

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