The International Court of Justice: A Proper Forum for the Balanced Adjudication of Trade-Environment Disputes

The World Trade Organization’s (WTO) Dispute Settlement Body (DSB) sometimes adjudicates cases with environmental undertones while hearing trade disputes. Considering that the DSB is mainly responsible for the application of WTO international trade rules to these cases, it is arguable whether the DSB is the most appropriate adjudicatory forum on cases with environmental undertones. The article analyses four cases decided by the DSB: (1) The United States – Restrictions on Imports of Tuna (Tuna-Dolphin I), (2) the United States – Restrictions on Imports of Tuna (Tuna-Dolphin II), (3) the European Communities – Measures Affecting the Approval and Marketing of Biotech Products (Biotech Product’s case), and (4) the United States – Import Prohibition of Certain Shrimp and Shrimp Products (the US Shrimp case). It also analyses four cases with trade and environment considerations decided by the International Court of Justice (ICJ): (1) Whaling in the Antarctic (Australia v Japan), (2) Gabčíkovo-Nagymaros (Hungary v Slovakia), (3); Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua)/Construction of a road in Costa Rica along the San Juan River (Nicaragua v Costa Rica); and (4) Pulp Mills on the River Uruguay (Argentina v Uruguay). From the analysis, this article finds that the ICJ, rather than the DSB, would be the appropriate arbiter of trade cases with environmental undertones. This article finds that, unlike the DSB, the ICJ has a history of balanced adjudication of cases with trade-environment conflict and appears a better fit to decide cases with elements of trade and environment. As such, this option would guarantee a more neutral avenue for the adjudication of trade-environment conflicts.