An International Environmental Court and International Legalism

Author(s): Ole W. Pedersen

Source: Journal of Environmental Law , Vol. 24, No. 3 (2012), pp. 547-558
Published by: Oxford University Press
Stable URL: https://www.jstor.org/stable/10.2307/26168447

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

Oxford University Press is collaborating with JSTOR to digitize, preserve and extend access to
Journal of Environmental Law

This content downloaded from

102.117.2.147 on Tue, 17 Jan 2023 12:01:40 UTC
All use subject to https://about.jstor.org/terms
 Journal of Environmental Law 24:3 ß The Author 2012. Published by Oxford University Press.
All rights reserved. For Permissions, please email: journals.permissions@oup.com
doi:10.1093/jel/eqs022 Advance Access published on 15 October 2012
.......................................................................

Analysis

An International
Environmental Court and
International Legalism
Ole W. Pedersen*

Abstract
This essay offers an assessment of the most recent attempt lead by the
International Court for the Environment (ICE) Coalition to garner
support for an international environmental court. The essay argues
that the concept of legalism, as developed by Judith Shklar and more
recently advanced by Eric Posner, offers us a conceptual background
against which to view this campaign. In doing so, the essay argues that
a narrow focus on legal solutions, which emphasise legal responsibility
and blameworthiness, is likely to prove insufficient. Despite this, it is
argued that the ICE Coalition’s contribution to the debate on how to
best address collective action problems harming the environment may
in the long run assist us in developing viable solutions.

1. Introduction
Discussions onthe advantages and the feasibilityof an international environmen-
tal court regularly (re)surface in academic debates. Joining in these discussions
are grassroots, environmental organisations and legal practitioners supporting
the creation of such a tribunal to varying degrees. The late1980s witnessed a con-
certed call for an international environmental court when a group of experts,

* Newcastle Law School and Academic Associate New Park Court Chambers
(ole.pedersen@ncl.ac.uk). This essay is based on shorter articles presented at the
International Law Weekend hosted by the American Branch of the International Law
Association in New York City October 2010 and at Sheffield Law School in November 2011.
Special thanks is owed to Duncan French, James May, Richard Mullender, Patrick
O’Callaghan and Chris Rodgers. The usual caveats apply.

...........................................................................
Journal of Environmental Law 24:3 (2012), 547^558

This content downloaded from

102.117.2.147 on Tue, 17 Jan 2023 12:01:40 UTC
All use subject to https://about.jstor.org/terms
548 Ole W. Pedersen

headed by former Italian Supreme Court Justice Amedeo Postliglione, met in

Rome. In 1992, The International Court of the Environment Foundation (ICEF)
was established with the aim of campaigning for the creation of such a court.
Most recently, the calls for an international environmental court have received
backing from the newly established International Court for the Environment
(ICE) Coalition, founded as a limited company in the UK.1
Are there any reasons to take seriously yet another proposal for an interna-
tional environmental court? On the face of it, there seems to be little gained
from another attempt to garner support for a court which, following more
than 20 years of advocacy, has not yet materialised. In a recent account of
how international courts and tribunals contribute to the development of inter-
national environmental law, the idea of an international environmental court
is described as being somewhat ‘naı̈ve’and ‘quixotic’ by virtue of the many pro-
posals bearing little resemblance to existing international courts.2 In light of
this, this essay discusses the possible relevance of an international environ-
mental court focusing on the most recent proposal by the ICE Coalition.3 In
order to gain analytical purchase on the role of an environmental court, this
essay frames the debate by way of relying on the concept of legalism. The
essay argues that legalism offers us a conceptual background, outlined below,
against which to view the campaigning for a court. While other international
initiatives aimed at addressing environmental problems (both generally and
specifically) may be judged as legalistic, the essay argues that the particular at-
tempt by the ICE Coalition to address international collective action problems
through judicial avenues is a particularly strong example of legalism.

2. Overview of the International Court Debate

The debate on the need for an international environmental court traces its
roots back to late 1980s and early 1990s, when a number of critical voices gar-
nered support for the idea.4 In 1989, a conference was held in Rome by the

1 See website of the International Court for the Environment Coalition 5http://www.environ
mentcourt.com/4 accessed 17 July 2012.
2 Tim Stephens, International Courts and Environmental Protection (CUP 2009) 59^60.
3 As such the essay does not engage in an analysis of the need of special environmental courts
and tribunals on the domestic level. See instead George Pring and Catherine Pring, Greening
Justice: Creating and Improving Environmental Courts and Tribunals (The Access Initiative
2009) and Malcolm Grant, Environmental Court Project: Final Report (Department of the
Environment, Transport and the Regions 2000).
4 For an extensive examination of the arguments for and against a court see Ellen Hey,
Reflections on an International Environmental Court (Kluwer 2000); Susan M Hinde, ‘The
International Environmental Court: Its Broad Jurisdiction as a Possible Fatal Flaw’ (2003) 32
Hofstra L Rev 727; and Stephens (n 2) 56^61. See, for a more specific application of the envir-
onmental court argument, Sep Jayanti, ‘Recognising Global Environmental Interests: A Draft
Universal Standing Treaty for Environmental Degradation’ (2009) 22 Geo Int’l Envtl L Rev 1;
and Marguerite Hutchinson, ‘Moving Beyond the WTO: A Proposal to Adjudicate GMO
Disputes in an International Environmental Court’ (2008) 10 San Diego Int’l L J 229.

This content downloaded from

102.117.2.147 on Tue, 17 Jan 2023 12:01:40 UTC
All use subject to https://about.jstor.org/terms
 International Environmental Court and International Legalism 549

Congress on a More Efficient International Law on the Environment and

Establishing an International Court for the Environment.5 This was followed
by the establishing in 1992 of ICEF, which produced a draft statute for a court
the same year.6 In the draft statute, the case for an environmental court was
placed in the wider context of the perceived need for an international environ-
mental agency, alongside an international treaty declaring the fundamental
right for everyone to the environment.7 The draft statute further declared that
an ICE shall be established as a permanent organ with the responsibility ‘to
protect the environment as a fundamental human right in the name of the
International Community’.8 In addition, supporters intended the Court to
decide on any environmental dispute involving state responsibility to the inter-
national community, as well as any dispute ‘concerning environmental
damage, caused by private or public parties, including the State, where it is
presumed that, due to its size, characteristics and kind, this damage affects
interests that are fundamental for safeguarding and protecting the human
environment on earth’.9 Partly as a result of the draft statute’s ambitious aim
and wide scope (particularly the aim of resolving disputes in relation to ‘envir-
onmental damage’ seems ambitious in light of the lack of a general liability
regime for such damage in international law), it was scaled down and a new
draft treaty dealing only with the perceived need for an international court
was presented at a conference in Washington in 1999, sponsored by the ICEF.10
In late 2008, the newly established ICE Coalition began campaigning for an
international environmental court in the build-up to the United Nations
Framework Convention on Climate Change (UNFCCC) Conference of the
Parties 15 (COP15) meeting in Copenhagen in December 2009.11 The ICE
Coalition has subsequently gone on to organise a number of seminars and
events probing the prospects of an international environmental court, mould-
ing its advocacy on the experience of the Coalition for the International
Criminal Court, which successfully advocated for the creation of the ICC. The
main thrust of the ICE’s argument is, in line with many of the previous

5 Amedo Postiglione, ‘A More Efficient International Law on the Environment and Setting up
an International Court for the Environment within the United Nations’ (1990) 20 Envtl L 321.
6 See Draft Statute of the International Environmental Agency and the International Court of
the Environment 5http://www.icef-court.org/4accessed 17 July 2012.
7 On this subject see eg Chiara Feliziani, ‘The Duty of Member States to Guarantee the Right to
a Healthy Environment: A Consideration of European Commission v. Italy (C-297/08)’ (2012)
24 JEL 535.
8 (n 6) art 10.
9 ibid.
10 The conference in turn facilitated a symposium on the need for an international environmen-
tal court published in (2000) 32 Geo Wash J Int’l L and Econ.
11 See in general website of the Coalition 5http://www.environmentcourt.com/index.php4 ac-
cessed 17 July 2012; Stephen Hockman, ‘A n International Court for the Environment’ (2009)
11 Env L Rev 1; and Stephen Hockman, ‘In Search of World Justice’ The Guardian (London,
19 August 2008).

This content downloaded from

102.117.2.147 on Tue, 17 Jan 2023 12:01:40 UTC
All use subject to https://about.jstor.org/terms
550 Ole W. Pedersen

suggestions for an international environmental court, that the world is con-

fronted with a long list of environmental problems that need urgent attention.
More specifically though, we can divide the arguments in favour of an en-
vironmental court into two categories: one relating to the (in)effectiveness of
current international regimes and the other relating to procedural practices
of international courts. While these are intertwined, the former takes an in-
strumental bent and assumes that current international dispute-settlement
regimes are not geared to dealing with serious environmental challenges. The
procedural critique seeks to highlight points such as the lack of standing for
non-state actors before international tribunals and lack of appreciation of en-
vironmental issues among international judges.
An example of the instrumental critique is found in the argument that
existing institutions fail to afford appropriate consideration to the environ-
ment.12 Advocates of an international environmental court find evidence of
this in the decisions from the International Court of Justice (ICJ) and the
World Trade Organization (WTO) (and the General Agreement on Tariffs and
Trade (GATT)) panels.13 For example, while the ICJ has on several accounts
stressed the importance of protecting the environment, it has explicitly found
that such consideration is insufficiently compelling to outlaw the use of nu-
clear weapons, just as such considerations could not be relied upon to excuse
non-fulfilment of treaty obligations.14 As a result, proponents of an environ-
mental court argue that a special court able to hear environmental disputes
only would go some way in affording the environment the special attention
that it needs.15 In many ways, such an approach is understandable insofar
as adjudicatory institutions lend significant credibility to a legal system. As
explained by Gardner: ‘it is no legal system if there are no institutions that

12 Sands questions, by reference to the ICJ’s Gabcikovo decision (n 14), whether the Court ‘missed
an opportunity to indicate a real willingness to show its environmental credentials?’ (with-
out, however, arguing for a special environmental court). Philippe Sands, ‘International
Environmental Litigation and its Future’ (1999) 32 U Rich L Rev 1619, 1633. A similar argu-
ment is found in the Joint Dissenting Opinion of Judges Al-Khasawneh and Simma to the
Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) Judgment of 20 April
2010, (where Judges Al-Khasawneh and Simma criticise the Court for not applying a more
preventive approach to the environmental risks associated with the mill), 25.
13 Recently, Sands observed, when assessing environmental litigation before international tribu-
nals, that ‘international courts are anthropocentric’. See Philippe Sands, ‘Water and
International Law: Science and Evidence in International Litigation’ (2010) 22 ELM 151, 161.
14 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons opinion of 8 July 1996
(ICJ Reports 1996, 226) and Case Concerning Gabc› ikovo-Nagymaros Project (Hungary/Slovakia)
decision of 25 September 1997 (ICJ Reports 1997, 7). See also John Gillroy, ‘Adjudication
Norms, Dispute Settlement Regimes and International Tribunals: The Status of
‘‘Environmental Sustainability’’ in International Jurisprudence’ (2006) 42 Stan J Int’l L 1,
23^31.
15 Gillroy, ibid 50^52.

This content downloaded from

102.117.2.147 on Tue, 17 Jan 2023 12:01:40 UTC
All use subject to https://about.jstor.org/terms
 International Environmental Court and International Legalism 551

are charged with resolving disputes that arise from the non-observance
of the rules’.16 In other words, an international environmental court could be
taken to add credibility to the body of international environmental law and
perhaps give impetus to its development as a distinct legal discipline.
This criticism, however, overlooks the fact that it is often difficult to discern
the ‘environmental aspects’ of a dispute from ‘non-environmental aspects’.17
Although the ICJ’s decision in Gabc› ikovo-Nagymaros Project (Hungary v
Slovakia) may for many purposes be considered as an environmental case, the
central point of contention in the dispute related to the right to unilateral sus-
pension of treaty obligations.18 It is difficult to see how a dispute could arise
which is exclusively ‘environmental’, without either having some relation to
general public international law, international trade law or foreign investment
law, for that matter.19 In these kinds of cases, commentators argue that a gen-
eralist court is better placed than a specialist one. As observed by Sir Robert
Jennings: ‘However esoteric one’s professed speciality may be, it is the
common experience that, faced with particular problems, one is often at a
loss unless one has a mastery of the elements of the ordinary everyday law’.20
The procedurally orientated arguments in support for an international en-
vironmental court include the argument that proceedings before the ICJ are
only open to states, thereby excluding applications from private individuals
and environmental organisations.21 While this goes against current trends in
regional environmental agreements (most notably the Aarhus Convention,
which in itself recognises the important role played by NGOs while simultan-
eously affording them a central role in respect of the workings of its
Compliance Committee), a number of international initiatives go some way
towards remedying the exclusion of non-state actors. For instance, in 2001,
the Permanent Court of Arbitration (PCA) launched its Optional Rules

16 John Gardner, ‘The Virtue of Justice and the Character of Law’ (2000) 53 CLP 1.
17 See Malgosia Fitzmaurice,‘Environmental Protection and the International Court of Justice’ in
Vaughan Lowe and Malgosia Fitzmaurice (eds), Fifty Years of the International Court of Justice:
Essays in Honour of Sir Robert Jennings (CUP 1996) 293, 313; Patricia Birnie, Alan Boyle and
Catherine Redgwell, International Law and the Environment (3rd edn, OUP 2009) 250; Sean D
Murphy, ‘Does the World Need a New International Environmental Court?’ (2000) 32 Geo
Wash J Int’l L & Econ 333, 344; Philippe Sands, ‘Litigating Environmental Disputes: Courts,
Tribunals and the Progressive Development of International Environmental Law’ (OECD
Global Forum on International Investment 2008); and Robert Jennings, ‘Need for an
Environmental Court?’ (1992) 20 Envtl Policy and Law 312.
18 Fitzmaurice, ibid. Similarly, the central claim in the Pulp Mills decision (n 12) may be con-
strued as primarily relating to the issue of whether Uruguay had fulfilled its procedural obli-
gations in relation to consultation of the Commission for the River Uruguay (CARU) before
commencing construction irrespective of any environmental implications resulting from this.
19 See Sands (n 17).
20 Jennings (n 17) at 313. See also Hey (n 4) 9^14 (who warns that the creation of a specialist en-
vironmental court made may have the unwarranted side effect of contributing to further frag-
mentation of international law).
21 See in general Peggy R Kalas, ‘International Environmental Dispute Resolution and the Need
for Access by Non-State Entities’ (2001) 12 Colo J Int’l Envtl L and Pol’y 191.

This content downloaded from

102.117.2.147 on Tue, 17 Jan 2023 12:01:40 UTC
All use subject to https://about.jstor.org/terms
552 Ole W. Pedersen

for Arbitration of Disputes Relating to Natural Resources and/or the

Environment, which are open to non-state actors.22 Although the Rules have
been criticised as being ‘essentially the UNCITRAL Rules with a twist’, they
hold some potential for future environmental arbitration.23 Of course, one sig-
nificant drawback of the Rules is that they maintain a strong emphasis on con-
fidentiality, where the parties to the dispute find this is needed, with the
result that resolutions may be kept from the wider public.24
The interests of non-state actors have not, however, been entirely ignored.
In 1994, the International Court of Environmental Arbitration and
Conciliation (ICEAC) was set up in Mexico by a group of international law-
yers.25 The Court has as its function to ‘facilitate, by conciliation and arbitra-
tion, the settlement of environmental disputes between States, natural or
legal persons submitted to it by agreement of the parties to the dispute’.26 In
addition, the Court also provides consultative opinions upon request. From
the Court’s website, however, it would appear that most of the Court’s decisions
relate to consultative opinions (often relating to domestic questions) and that
no state has yet accepted a petition for conciliation.27
From this brief overview of the environmental court debate, which has
taken place over the past 20 years, one thing seems clear: the setting up of an
international environmental court is not uncontroversial, generating a long
line of arguments for and against. It would seem, in light of the non-existing
caseload of the now-abandoned environmental chamber of the ICJ, that states

22 Permanent Court of Arbitration, 2001 Optional rules for Arbitration of Disputes Relating to
the Environment and/or Natural Resources. In 2002, the PCA adopted its optional rules on
conciliation in environmental disputes. For an appraisal of the Rules see Dane P Ratliff, ‘The
PCA Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the
Environment’ (2001) 14 Leiden J Int’l L 887.
23 See Matthew Vespa, ‘A n Alternative to an International Environmental Court? The PCA’s
Optional Arbitration Rules for Natural Resources and/or the Environment’ (2003) 2 LPICT
295, 322 and Alfred Rest, ‘Enhanced Implementation of International Environmental
Treaties by Judiciary ^ Access to Justice in International Environmental Law for Individuals
and NGOs: Efficacious Enforcement by the Permanent Court of Arbitration’ (2004) 1
MqJICEL 1, (who argues that ‘the Rules contain a lot of innovative instruments which will
contribute to an enhanced judicial control concerning the application of environmental law
and strengthen the legal position of NGOs as well as of the individual victims of deleterious
environmental activities’) 24.
24 Sceptics, however, question whether disputes between citizens, states and environmental or-
ganisations ought at all to be settled internationally. See Hey (n 4) 14^16.
25 See also Eckard Rehbinder and Demetrio Loperena, ‘Legal Protection of Environmental
Rights: The Role and Experience of the International Court of Environmental Arbitration
and Conciliation’ (2001) 31 Envtl Policy and L 282 and Vespa (n 23) 328^29, for an account
of the Court’s background.
26 Statute of the Court available 5http://iceac.sarenet.es/Ingles/Stat.html4 accessed 17 April
2012.
27 See also Rehbinder and Loperena (n 25). A good example of this is the Court’s consultative
opinion on the liability of public and private actors for genetic contamination of non-GM
crops issued in June 2005, EAS ^ OC 13/04.

This content downloaded from

102.117.2.147 on Tue, 17 Jan 2023 12:01:40 UTC
All use subject to https://about.jstor.org/terms
 International Environmental Court and International Legalism 553

are reluctant to define a dispute as ‘environmental’ for the purpose of interna-

tional adjudication.28 In this light, the ICE Coalition’s recent proposal may
well run aground.

3. Legalism
However, one way to conceptualise the attempts to set up an international
environmental court is by way of the concept of legalismçhere playing out
in an international context.29 International legalism is the extension of legal-
ism (from the domestic arena) to the international discourse done in the
name of addressing global collective action problems.30 In the domestic con-
text, legalism often manifests itself in the disposition for so-called ‘judicialisa-
tion’.31 ‘Judicialisation’ may be defined as ‘the transfer of decision-making
rights from the legislature, the cabinet, or the civil service to the courts’ or, at
least,‘the spread of judicial decision-making outside the judicial province prop-
er’.32 Before applying these definitions of legalism to the international environ-
mental court debate, we should, briefly recall some of the criticism levied
against the concept of legalism based on the argument that the concept is too
wide and suffers from imprecision.33 It is, for instance often pointed out that
the definition of legalism deployed by Judith Shklar in her influential work is
used to describe two distinct phenomena, unnecessarily confusing the termin-
ology.34 In addition to describing legalism as maintaining a strong emphasis
on judicial proceedings according to which the ‘court of law and the trial

28 See Malgosia Fitzmaurice, ‘The International Court of Justice and Environmental Disputes’ in
Duncan French, Matthew Saul and Nigel White (eds), International Law and Dispute
Settlement (Hart 2010) 17, 54^55, for a discussion on the ICJ’s Chamber for Environmental
Matters.
29 Leslie Green considers legalism the ‘vice internal to law’. To Green, legalism has two charac-
teristics: over-valuation of legality at the expense of other virtues and the alienation of law
from life. See Leslie Green, ‘Positivism and the Inseparability of Law and Morals’ (2008) 83
NYUL Rev 1035, 1057^58.
30 Applied internationally, legalism seeks the ‘replacement of politics by law as the solution to all
the problems of international conflict’: Judith Shklar, Legalism: Law, Morals, and Political
Trials (Harvard University Press 1986) 139. See also Eric Posner, The Perils of Global Legalism
(University of Chicago Press 2009) 24.
31 See Torbjorn Vallinder,‘When the Courts Go Marching In’ in C Neal Tate and Torbjorn Vallinder
(eds), The Global Expansion of Judicial Power (New York University Press 1995) 13.
32 ibid 13.
33 We also ought to note the criticism applied by the critical legal studies (CLS) movement of
legal structures in general and thereby implicitly also the concept of legalism. This critique
was primarily based on the inherent indeterminacy of the law. Such indeterminacy would
naturally undermine the premises on which Shklar’s definition of legalism is based, insofar
as law is innately unstable. See in general Neil Duxbury, Patterns of American Jurisprudence
(OUP 2001) ch 6; Roberto M Unger, ‘The Critical Legal Studies Movement’ (1983) 96 Harv L
Rev 561 and Robin West, ‘Reconsidering Legalism’ (2003) 88 Minn L Rev 119, 127^29, for the
application for the CLS movement’s arguments to legalism.
34 West, ibid 125^26 and see Shklar’s definition (n 30).

This content downloaded from

102.117.2.147 on Tue, 17 Jan 2023 12:01:40 UTC
All use subject to https://about.jstor.org/terms
554 Ole W. Pedersen

according to the law are the social paradigms, the perfection, the very epitome,
of legalistic morality’, legalism is also taken to entail ‘the ethical attitude that
holds moral conduct to be a matter of rules following, and moral relationships
to consist of duties and rights determined by rules’.35 While such imprecision
inevitably undermines the authority of the concept, it by no means renders
the concept inapplicable to the present discussion as the focus in this article
is primarily on the first phenomena of ‘judicialisation’. Consequently, legalism
would seem to offer us a conceptual underpinning of the current calls for an
environmental court.
This is particularly so when we consider the aim behind such calls with ref-
erence to environmental issues. If the intention behind such calls is to spur
international judicial action in an attempt to conjure a solution to environmen-
tal problems (in the absence of institutional support for environmental issues)
then legalism would seem to be at play. On the face of it, such approaches
seem benign and worthyçafter all, with specific application to the issue of an-
thropogenic climate change (which remains a central argument in the ICE
Coalition’s claim for support for a court) the international community is faced
with a ‘super-wicked’ problem and has thus far failed to come up with viable so-
lutions.36 This, however, is not necessarily the case.
As Shklar notes, legalism is best defined as an ideology competing with
other political preferences.37 In this view, legalism is merely another political
ideology which, like other ideologies, ‘express[es] itself in politics, in institu-
tional structures, and in intellectual attitudes’.38 While legalists can seek com-
fort in the fact that they at least adhere to ‘the policy of justice’, legalism is, to
Shklar, no more than another political dogma, which competes for attention
alongside other political doctrines.39 This perception is closely tied to the ob-
servation that law as a discipline does not hold any elevated position as such
within society; and law, as an enterprise, is necessarily intertwined with
morals and politics. As Shklar observes: ‘The tendency to think of law as

35 Shklar (n 30) 1^2.

36 Richard J Lazarus, ‘Super Wicked Problems and Climate Change: Restraining the Present to
Liberate the Future’ (2009) 94 Cornell L Rev 1153. In this attempt to facilitate distinct legal so-
lutions to collective action problems, we arguably find traces of what Richard Posner terms
the ‘lawyers’ hubris’ used to describe the idea that the ‘lawyers’ training and experience
equip them to determine what weight should be given to any factors, however arcane, tech-
nical, or otherwise remote from the knowledge and experience of a lawyer’ (original em-
phasis). See Richard Posner, Law, Pragmatism and Democracy (Harvard University Press
2003) 308^09.
37 Shklar (n 30) 2. Shklar considers legalism an ‘essentially conservative’ ideology in that it seeks
to ‘promote the security of established expectations’ 9. See, however, West who observes that
legalism is not necessarily the same as ‘rule fetishism’and that ‘legalists, still true to legalism,
sometimes break from a Burkean respect for the past’ (n 33) 126.
38 Shklar (n 30) 8.
39 ibid.

This content downloaded from

102.117.2.147 on Tue, 17 Jan 2023 12:01:40 UTC
All use subject to https://about.jstor.org/terms
 International Environmental Court and International Legalism 555

‘‘there’’as a discrete entity, discernibly different from morals and politics, has its
deepest roots in the legal profession’s views of its own functions, and forms
the very basis of most of our judicial institutions and procedures’.40
Accordingly, prima facie benevolent appeals to ‘the policy of justice’ are partly
undone by the fact that justice is in many ways contingent. To Shklar, ‘justice
is but one personal virtue among others’.41 On this account, we can forge a
link to the work by the pragmatist philosophers. For instance, Richard Rorty
saw justice as being a practical goal rather than a grand political objective.42
This approach is partly founded on Rorty’s general scepticism towards grand
metaphysical claims based on ideas and persuasions of truth.43 In this light,
we should recognise legalism for what it is: ‘a form of political action, among
others’.44 Applying this to the ICE Coalition’s calls for an environmental court,
we should bear in mind that the urge to promote legal solutions is but one
option among many.
International legalism hence captures the idea that wherever a collective
action problem is identified, international law (and in particular adjudication)
offers a readymade answer.45 A contributing factor, as identified by Tate, is
that calls for ‘judicialisation’ are prominent where interest groups exercise in-
fluence on debates while calling for judicial involvement as political decisions
go against their interests.46 This latter point may go some way to explain the
ICE Coalition’s arguments if we link to the role played by so-called epistemic
communities in forging responses to international problems.47 An epistemic
community is a network of professionals (from varying backgrounds), who
share a set of normative and casual beliefs with the view to facilitating a
common policy enterprise.
In the case at hand, this is exemplified by the emphasis on an international
environmental court to address significant environmental problems and in
particular anthropogenic climate change. In other words, where international

40 ibid at 9.
41 ibid at 114.
42 See for a recent analysis of Rorty and justice, Ian Ward,‘Bricolage and Low Cunning: Rorty on
Pragmatism, Politics and Poetic Justice’ (2008) 28 Legal Studies 281.
43 Richard Rorty, Truth and Progress: Philosophical Papers, vol 3 (CUP 1998) 1^42.
44 Shklar (n 30) 143.
45 We can forge a link between the aim of the international legalists and what Kelly considers
naturalism in international law. Here naturalism is taken to mean ‘the articulation of legal
rules or principles extrinsic to positive enactment by the relevant political community’. See J
Patrick Kelly, ‘Naturalism in International Adjudication’ (2008) 18 Duke J Comp & Int’l L 395,
396. Kelly argues that the emphasis on naturalism is partly driven by what he calls
‘Progressive Internationalists’ which is contrasted by the interests of ‘State Power
Rationalists’ who are concerned about reductions in state sovereignty, 396^97.
46 C Neal Tate, ‘Why the Expansion of Judicial Power?’ in Tate and Vallinder (n 31) 29.
47 See in general Peter M Haas, ‘Introduction: Epistemic Communities and International Policy
Coordination’ (1992) 46 Int’l Organ 1.

This content downloaded from

102.117.2.147 on Tue, 17 Jan 2023 12:01:40 UTC
All use subject to https://about.jstor.org/terms
556 Ole W. Pedersen

and global problems arise, international law and international institutions are
considered as the best option.48 On this reading, international legalism can be
seen as a response to the criticism which international law is occasionally sub-
ject to on grounds of weak enforcement, lack of legitimacy and (sometimes)
low implementation rates. Thus, in Posner’s account, legalism ‘is the world gov-
ernment approach except without the government. Legalists recognise that a
world government is not likely in the near future, but they believe that law
without government can nonetheless solve global problems’.49 Consequently, a
strong and independent international judiciary is favoured by the legalists, as
this follows neatly on from domestic legal structures. The problem with such
an approach is that many environmental problemsçin particular climate
changeçare multi-scalar and comprehensive problems which arguably
require responses on multiple scales. As observed by Eleanor Ostrom: ‘A n
important lesson is that simply recommending a single governmental unit to
solve global collective action problems ^ because of global impacts ^ needs to
be seriously rethought and the important role of smaller-scale effects
recognized.’50 That is to say, a focus on legal solutions that emphasise legal
responsibility and blameworthiness is likely to prove insufficient.

4. Conclusion
Estimates of whether the international community is likely to get together any
time soon to create a treaty facilitating an international environmental court
are likely to amount to little more than guesswork. On the one hand, such esti-
mates seem entirely unrealistic in light of the ongoing impasse when it comes
to agreeing a continuation of the Kyoto Protocol’s commitment period. We can
assume, arguably with some strength, that if states are unwilling to give
ground when it comes to lowering emissions of greenhouse gasses by reference
to the need to secure and maintain domestic economic development and
feeble recovery, then they are equally unlikely to support an international en-
vironmental court. On the other hand, supporters of a court may find comfort
in the fact that experience indicates that states are more willing to afford com-
pulsory jurisdiction to specialist courts and tribunals with narrow jurisdic-
tional competences. For instance, the ICC’s jurisdiction is limited to the crimes

48 Posner notes how global legalists maintain a strong emphasis on international institutions. To
Posner, however, global legalism is not a specific theory or doctrine. It is more akin to an atti-
tude or a set of beliefs (n 30) 25.
49 ibid 24 (anglicised).
50 Elinor Ostrom, ‘A Polycentric Approach to Climate Change’ (2009) Policy Research Working
Paper 5095, The World Bank 5http://papers.ssrn.com/sol3/papers.cfm?abstract_id¼1494833
&4 accessed 17 July 2012, 35.

This content downloaded from

102.117.2.147 on Tue, 17 Jan 2023 12:01:40 UTC
All use subject to https://about.jstor.org/terms
 International Environmental Court and International Legalism 557

of genocide, crimes against humanity, war crimes and the crime of aggression
(by 2017) while simultaneously being complementary (thus affording states
an opportunity to take judicial steps prior to any ICC intervention).51 This ar-
guably indicates that an environmental court stands a better chance of seeing
light someday provided its remit is sufficiently narrow.52
Having sought to establish that an international environmental court is not
necessarily the best way forward, we may argue that the continuing attempts
to set up such a court ought to be abandoned. This is particularly so when we
consider that the ICJ has recently witnessed an increase in environmental-
related disputes (although the base point is admittedly low).53 As observed by
one commentator: ‘if existing international tribunals are not sufficiently sensi-
tive to international environmental law, then the most efficient means of ad-
dressing the problem is to sensitise them’.54 Others have argued that this is to
some extent already happening. French notes that despite the overall numbers
of environmental cases remaining low, ‘there is a sense ^ however inchoate ^
of an emerging jurisprudence’ before international courts, arbitral tribunals
and regional courts.55 In this light, sceptics of an international environmental
court can argue that the incrementalism, which is likely to come with this
emerging jurisprudence, is as good as it is likely to get.
If the foregoing analysis is correct, an overly narrow focus on international
judicial approaches, as this is put forward by the ICE coalition, will provide
little relief in the attempt to address international environmental problems. In
this regard, the tenuous optimism in exclusively judicial solutions found in
the campaign for the establishment of a court is akin to legalism as this is
explored in the works by Shklar. Having said that, one should not be entirely
dismissive of the attempts by groups such as the ICE Coalition just because
their aim may come across as utopian or ‘quixotic’. First of all, it is exactly, to
use Rawls’ terminology, by probing the boundaries of the practically possible
that progress is made and improvements are achieved. As Isaiah Berlin told

51 Art 5 of the Rome Statute of the International Criminal Court.

52 Joost Pauwelyn, ‘Judicial Mechanisms: Is there a Need for a World Environment Court?’ in W
Bradnee Chambers and Jessica F Green (eds), Reforming International Environmental
Governance: From Institutional Limits to Innovative Reforms (United Nations University Press
2005) 150, 159.
53 Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (n 12) and pending
cases of Arial Herbicide Spraying (Ecuador v Columbia) and Whaling in the Antarctica (Australia
v Japan). See also Don Anton (2010) ‘Case Concerning Pulp Mills on the River Uruguay
(Argentine v. Uruguay) (Judgement) [2010]’ ANU College of Law Research Paper No 10^84
5http://papers.ssrn.com/sol3/papers.cfm?abstract_id¼17058104 accessed 17 July 2012
(arguing that ‘one wonders if it might not be appropriate for the Court to begin holding elec-
tions again for the Chamber for Environmental Matters’) 10.
54 Murphy (n 17) 343.
55 Duncan French, ‘Environmental Dispute Settlement: The First (Hesitant) Signs of Spring?’
(2006) 19 Hague Ybk Int’l L 3, 9. French further observes that, ‘subject to a substantial note
of caution, this plethora of forums is per se a healthy indicator of the pervasive nature of en-
vironmental arguments’, 31.

This content downloaded from

102.117.2.147 on Tue, 17 Jan 2023 12:01:40 UTC
All use subject to https://about.jstor.org/terms
558 Ole W. Pedersen

us: ‘utopias have their value ^ nothing so wonderfully expands the imaginative
horizons of human potentialities’.56 In other words, the ICE Coalition’s norma-
tive arguments and contribution to the debate on how to best address collect-
ive action problems harming the environment may in the long run assist us
in developing viable solutions. On this account, groups like the ICE Coalition
deserve praise for their effort to draw attention to international environmental
problems and in that process offering legal resolutions. We must, however,
bear in mind that the legalistic calls for an environmental court are but one
of many responses.

56 Isaiah Berlin, ‘The Pursuit of the Ideal’ in The Proper Study of Mankind (Farrar, Straus and
Giroux 2000) 12.

This content downloaded from

102.117.2.147 on Tue, 17 Jan 2023 12:01:40 UTC
All use subject to https://about.jstor.org/terms