International Judicial Practice on the Environment
Questions of Legitimacy

Evaluates the fundamental legitimacy of judicial practice in the growing number of environmental cases heard before international courts.

Christina Voigt (Edited by)

9781108497176, Cambridge University Press

Hardback, published 18 April 2019

502 pages
23.4 x 15.8 x 3 cm, 0.83 kg

'The concept of legitimacy is both complex and contested, but the editor does an admirable job in the introduction of explaining why this analytical framework was chosen and what it means in the context of the settlement of environmental disputes by international courts and tribunals … This volume brings together a rich tapestry of practice from various international courts and tribunals …' James Harrison, Review of European, Comparative and International Environmental Law

More and more environmental cases are being heard and decided by international courts and tribunals which lack special environmental competence. This situation raises fundamental questions of legitimacy of the environmental practice of international courts. This book addresses inter alia questions of who has legal standing to bring an environmental claim before an international court, on which legal norms is the case decided and whether judges have the necessary expertise to adjudicate environmental cases of often complex nature. It analyses which challenges international courts face, which possibilities they have and which advances international judicial practice has been able to make in protecting the environment. Through the prism of legitimacy important insights emerge as to whether international courts and tribunals are fit for addressing some of the most pressing global challenges of our time.

Introduction: international courts and the environment: the quest for legitimacy Christina Voigt
Part I. Procedural Legitimacy of Judicial Environmental Practice: Access to Justice: 1. The environment before the European Court of Justice Ludwig Krämer
2. The EU Aarhus Regulation and EU administrative acts based on the Aarhus regulation – the withdrawal of the CJEU from the Aarhus Convention Katja Rath
3. Access to justice before EU courts in environmental cases against the backdrop of the Aarhus Convention: balancing between pathological stubbornness and cognitive dissonance? Hendrik Schoukens
Part II. Legitimacy and Scientific Certainty – Environmental Adjudication, Use of Experts and the Limits of Science: 4. Scientific uncertainties: a nightmare for environmental adjudicators Tracey Kanhanga
5. Ignorance, uncertainty and biodiversity: decision making by the court of justice of the European Union Volker Mauerhofer
Part III. Judges as Law-Makers: Legitimate Development of Environmental Law: 6. Sustainable development before international courts and tribunals: duty to cooperate and states´ good faith Kazuki Hagiwara
7. New legal avenues to support a transboundary harm claim on the basis of climate change Kurt Winter
8. The Court of Justice of the European Union and the high level of environmental protection – transforming a policy objective into a concept amenable to judicial review Delphine Misonne
Part IV. Legitimacy of Outcomes: Performance, Effects (and Side-effects): 9. When environmental protection and human rights collide: four heuristics of conflict resolution Marie-Catherine Petersmann
10. Silent implications of US-Tuna II: greening market behaviour through the WTO Cristiane Derani and Arthur Rodrigues Dalmarco
11. Adjudication of environmental impact assessment claims before international courts and tribunals Andrew B. Loewenstein
12. Litigation as a climate regulatory tool Jacqueline Peel and Hari Osofsky
Part V. The Legitimacy of Non-Compliance Procedures: 13. Administrative procedures and rule of law values in the Montreal compliance system Anna Huggins
14. Legitimacy questions of non-compliance procedures: examples from the Kyoto and Montreal Protocol Zerin Sava?an
Part VI. The Limits of Environmental Justice through Courts: Balancing Legitimacy with the Need for Creativity: 15. Environmental Ombudsman: its role in the system of accountability mechanisms for administrative environmental decision making Mahito Shindo
16. The role of NGOs in monitoring compliance under the World Heritage Convention: options for an improved tripartite regime Evan Hamman
17. Beyond litigation: the need for creativity in working to realize environmental rights Lisa Chamberlain.

Subject Areas: Courts & procedure [LNAA], International courts & procedures [LBHG], International organisations & institutions [LBBU], International environmental law [LBBP], Public international law [LBB], International law [LB], Law [L]