This Article aims to investigate how environmental governance unfolds in the globalized world and how the increasing level of participation of non-state actors impacts the so-called “new governance”— a process involving many levels of international, domestic, regional, and local levels of decision-making, often without the participation of governments or formal international organizations. In one respect, the instruments of the new governance are inclusive; thus, in a field where multilateral efforts have reached a stalemate and the “treaty congestion” phenomenon has developed, they could represent a breath of fresh air by offering flexible, bottom-up solutions. At the same time, however, these instruments are often multifaceted and even chaotic; therefore, the coordination and overarching structures typical of traditional governance methods are much needed to confer cohesion to the system. With that backdrop, an architecture encompassing new institutions is proposed: this Article focuses on resolution of controversies by an International Environmental Court (IEC) that would incorporate the participation of non-state actors, both as plaintiffs and defendants. By analyzing the successes and failures of other international experiences, this study identifies the main characteristics around which such a court would be organized.
The dissipation of communication borders inherent to the globalized world exposed a series of problems with the traditional notion of governance centered on states and intergovernmental organizations. The need for cooperation can no longer be supported by relationships marked by reciprocity, and global efforts for the protection of common resources demand the recognition of, and abidance by, environmental erga omnes obligations.

It is also noticeable that traditional diplomatic relations—notably when it comes to international protection of the environment—suffer from a serious participation deficit. The interests of relevant actors have become increasingly multifaceted and sometimes incoherent. This, added to the extreme diversity among local scenarios and the marked inequality that characterizes power relations, has resulted in the inadequacy of traditional representation to include all the relevant stakeholders in the decision-making process. The increasing participation of non-state actors is, therefore, the main feature of what this Article chose to call the “new” global environmental governance.

The same occurred with the classic sources of international environmental law. The phenomenon of treaty congestion and the recent stalemates in negotiations of environmental treaties, namely in the climate change domain, have resulted in a multilateralism crisis. These circumstances force a difficult but indispensable reflection on the effectiveness of international environmental law, and urge the international community to consider new alternatives to promote it.

At the same time, the growing protagonism of non-state actors is noticeable in the flourishing of voluntary initiatives involving various degrees of public and private participation at the global, regional, and local spheres, whose recognition culminated in the coining, at the Johannesburg Summit, of the expression Type II Partnerships.166 Therefore, we are witnesses to a crucial paradigm shift: the adoption of contractual, voluntary forms of pursuing the goals of international protection of the environment.

If the instruments of the new governance are inclusive, they are also fragmentary and sometimes chaotic. What can be done to ensure that the flexibility of bottom-up solutions is not threatened and the system gains cohesion and effectiveness? This Article proposes that the instruments of traditional governance and those of the new governance should coexist in a new institutional and regulatory architecture, in whose articulation the law plays a fundamental role.

This Article proposes that the new institutional design encompasses an International Environmental Court (IEC) to be developed around the characteristics and lessons learned from different models dealing with international dispute resolution in the environmental arena. By outlining the features below, this Article intends to provide a point of departure for further reflection, which will be of the essence as the many challenges regarding implementation of the court unfold. The key point lies with the recognition that any such institution cannot ignore the main feature of the new global environmental governance, and should, therefore, devise a means for inclusion of non-state actors.

Check out the article: The Case for the Creation of an International Environmental Court: Non-State Actors and International Environmental Dispute Resolution,  26 Colo. Nat. Resources, Energy & Envtl. L. Rev. 180 (2015)

Alessandra Lehmen
*Alessandra Lehmen is a lawyer admitted in Brazil and in New York. She holds an LL.M. degree in environmental law and policy from Stanford Law School, where she was a Woods Institute Rising Environmental Leaders Fellow, the winner of the Olaus and Adolph Murie Award for best written work in environmental law, and a member of the board of the International Law Society. She also holds J.D., LL.M., and Ph.D. degrees in international law from the Federal University of Rio Grande do Sul and an M.B.A. from the Getulio Vargas Foundation of Brazil.