Bosselmann, Klaus --- "The Environmental Jurisprudence of International Tribunals: Does Sustainability Make a Difference?" [2011] ELECD 307; in Paddock, Lee; Qun, Du; Kotzé, J. Louis; Markell, L. David; Markowitz, J. Kenneth; Zaelke, Durwood (eds), "Compliance and Enforcement in Environmental Law" (Edward Elgar Publishing, 2011)

Book Title: Compliance and Enforcement in Environmental Law

Editor(s): Paddock, Lee; Qun, Du; Kotzé, J. Louis; Markell, L. David; Markowitz, J. Kenneth; Zaelke, Durwood

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448315

Section: Chapter 3

Section Title: The Environmental Jurisprudence of International Tribunals: Does Sustainability Make a Difference?

Author(s): Bosselmann, Klaus

Number of pages: 22

Extract:

3. The Environmental Jurisprudence of
International Tribunals: Does
Sustainability Make a Difference?
Klaus Bosselmann*

1. INTRODUCTION

While sustainable development has established status as a principle or, at least,
part of international law within an evolving environmental jurisprudence, its
importance in the resolution of international disputes has been rather limited. This
anomaly exists for normative and institutional reasons. First, normatively, for a
legal principle to guide international dispute resolution, it must not only be a legal
principle, but a rule-generating adjudicatory norm. This has not occurred for
sustainability because the "principle" of sustainable development itself is not of a
sufficiently definitive rule-creating character; it contains a number of competing
and even contradictory sub-principles that dilute its normative power. Second,
institutionally speaking, the international judiciary system has been evolving as a
set of parallel, closed legal regimes with specific adjudicatory norms. Therefore,
a new legal principle, in order to become an adjudicatory norm, requires
institutional refinements preferably in the form of a new (perhaps specialized)
dispute settlement regime, i.e. an International Environmental Court.
Fundamentally, international law is shaped around the core value of state
sovereignty. This has not changed over the past 60 years despite new challenges
to sovereignty, for example, through the emergence of human rights as universal
norms or the emergence of global concerns such as economic liberalization and
environmental sustainability. The International Court of Justice (lCJ) has not
altered its core adjudicatory norm of sovereignty to accommodate sustainable
development. And while the International Tribunal for ...