Recueil des cours, Collected Courses, Tome 405


Watch the interview with Jutta Brunnée on Procedure and Substance in International Environmental Law

Jan Paulsson, Issues arising from Findings of Denial of Justice:
In the last 20 years, claims of denial of justice before international tribunals have multiplied with the expansion of the numbers of treaty-based investor-state arbitrations.
Claims of denial of justice in such cases pose unusual problems with regard to the definition and assessment of damages which did not arise in the many old cases where denial of justice involved wrongful prosecution and therefore had a simple solution: annulment. These lectures focus on this matter as well as other issues of recent prominence in this field.

Jutta Brunnée, Procedure and Substance in International Environmental Law
The interplay between procedure and substance has not been a major point of contention for international environmental lawyers. Arguably, the topic’s low profile is due to the mostly uncontroversial nature of the field’s distinction between procedural and substantive obligations. Furthermore, the vast majority of environmental law scholars and practitioners have tended to welcome the procedural features of multilateral environmental agreements and their potential to promote regime evolution and effectiveness. However, recent developments have served to put the spotlight on certain aspects of the procedure-substance topic. Notably, the ICJ’s Pulp Mills and Costa Rica v Nicaragua / Nicaragua v Costa Rica judgments revealed ambiguity concerning aspects of the customary law framework on transboundary harm prevention that the field had taken for granted as largely settled. In turn, in the treaty context, the Paris Agreement’s retreat from binding emission targets and its decisive turn towards procedure reignited concerns in some quarters over the proceduralization of international environmental law. The two developments invite a closer look at the respective roles of, and the relationship between, procedure and substance in international environmental law and, more specifically, in the context of harm prevention under customary and treaty law.
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