Ever since environmental matters emerged as a subject of international concern, debate has surrounded the value of arbitration and judicial settlement in addressing environmental disputes. This debate has often appeared one sided, with an array of arguments mounted against the capacity of international courts to resolve complex environmental controversies or hold states to their environmental obligations. It was seen in the previous chapter that states increasingly prefer supervisory institutions to perform these functions, a trend which appears to vindicate many criticisms of international environmental litigation. However, the adoption of a managerial approach to dispute settlement and compliance control has not been universal within or across environmental agreements. Not only do several judicial mechanisms exist alongside treaty bodies in environmental regimes, but adjudicative elements have also been incorporated within newer and softer enforcement institutions. This chapter assesses this diversity of practice and identifies the value that adjudication can bring to international environmental governance. Drawing on international relations scholarship it is argued that the constraints upon judicial bodies assuming a more prominent role stem less from inherent limitations with the adjudicative process than from the positioning of international courts within environmental regimes.

International courts and environmental governance

There has been an increasing use of the concept of ‘governance’ to explore the ways in which environmental issues can be managed in a more integrated, coordinated, and effective manner.