A third distinguishing feature of
environmental law-and this is a legal,rather than factual,characteristic-is
that environmental claims are rarely,if ever,raised in isolation of other
international legal arguments.In other words,the environmental law arguments
will almost always involve arguments about other substantive areas of the
law.such other areas include trade agreements in the WTO context,human rights
norms before human rights courts,and issues of general international law,such
as the relationships between treaty and custom,or the law of the environment
and the law of state responsibility.This combination suggests most strongly
that an international tribunal composed solely of experts in international
environmental law might not fare well in attracting cases.Therefore,what is
needed is a body of judges with a mix of general and specialized expertise.This
also explains why no cases thus far have been presented to the ICJ’s
Environment Chamber and,in my view,why none may ever do so:no two states will
agree that a given dispute is essentially “environmental”.
A fourth distinguishing feature,relating more
to issues raised before global bodies than regional bodies,is that the
international community does not yet have a common appreciation of where
environmental objectives stand in the general legal and political hierarchy.There
are understandable differences of view between developed and developing
countries as to what the priorities should be,and it seems clear that those
differences will also extend to the bench.There are equally sharp differences
of opinion between different regions,and evev between developed countries.For
example,the current debate over genetically modified organisms indicates that a
German judge may be more likely to be risk-averse and “precautionary” than an
American judge?