The Limits of International Adjudication in International Environmental Law: Another Perspective on the Southern Bluefin Tuna Case

Abstract

AbstractThe Southern Bluefin Tuna case has provoked extensive commentary examining the implications of the litigation for the settlement of controversies involving the dispute settlement mechanisms of multiple treaties. However the case has a much broader significance. Drawing upon an analysis of the impact of the litigation on the Commission for the Conservation of SBT, this article explores the role of international adjudication in securing positive environmental outcomes. The case illustrates the significance of provisional measures in responding to environmental threats. However, judicial settlement is subject to several major limitations: generally it is reactive, can only involve a few parties and can only deal with a limited set of legal questions. More fundamentally, the effectiveness of international courts or arbitral panels may be constrained by the nature of environmental instruments themselves, which often lack precision in terms of objective rules of conduct and are often deeply ambivalent in terms of their objects and purposes.