International Dispute Settlement and Environmental Protection: Ontological, Methodological and Processual Issues

Abstract The steadily growing reliance on international dispute settlement as environmental protection means is not uncontroversial, raising three sets of issues regarding: (i) the nature of adjudicative fora (ontological issues); (ii) wider assumptions and frameworks (methodological issues); and (iii) processes for creating and implementing environmental obligations (processual issues). Accordingly, this review essay is threefold. Despite a trend towards greater reliance on international dispute settlement fora, Part I discusses whether their presumably inherent ‘anthropocentric’ orientation hinders their suitability and assesses the feasibility of solutions advocated in judicial discourses. Having observed inconsistencies between the law-ascertainment methods deployed by adjudicative fora and the general regimes on law-ascertainment, Part II contends, international law-based environmental protection risks becoming overly “judge-centric”, despite international law-making’s state-centric nature. Part III concludes considering various reversals of perspective, potentially countering the shortcomings of overly “judge-centric” environmental protection, in addition to factors such as enforceability, plausibly justifying greater reliance on arbitral fora.