Chapter 4 analyses the three selected challenges facing international tribunals – managing change, reviewing State conduct for compliance with international law, and dispute resolution – in the International Court of Justice (ICJ)’s environmental case law. The ICJ has repeatedly adapted aging treaty frameworks given relevant developments in international law and has also faced the problem of change in relevant facts. While the terminology of a standard of review is not firmly established in the ICJ’s case law, the underlying functional problem – concerning the intensity of an international tribunal’s scrutiny of determinations made by domestic authorities – is clearly present. Although three-step proportionality analysis is not entrenched in the ICJ’s case law, the Court has repeatedly used a reasonableness-based test that operates similarly to least restrictive means testing. Finally, the ICJ often adjudicates in a forward-looking, facilitative manner, seeking to assist the parties to manage their relationship after adjudication. Throughout, the chapter reflects on how the ICJ’s practices are shaped by its institutional features, such as its lack of any compulsory jurisdiction.

Chapter 3 analyses the three selected challenges facing international tribunals – managing change, reviewing State conduct for compliance with international law, and dispute resolution – in the environmental case law of the International Tribunal for the Law of the Sea (ITLOS) and arbitral tribunals constituted under the UN Convention on the Law of the Sea (UNCLOS). UNCLOS tribunals have often interpreted the Convention in a manner that takes account of relevant developments in international law. This is partly due to features of UNCLOS itself, including that it contains many generic or open-ended terms. The chapter demonstrates that the standard and method of review are significant issues in the environmental case law of UNCLOS tribunals, in the context of the Convention conferring on coastal States discretionary powers. These issues raise similar functional questions to those seen in the other adjudication contexts studied, for example regarding the rationales for some deference to domestic authorities. Finally, the chapter demonstrates that UNCLOS tribunals often adjudicate in a facilitative, forward-looking manner, aiming to assist the parties to rebuild their relationship.

Chapter 2 analyses the three selected challenges facing international tribunals – managing change, reviewing State conduct for compliance with international law, and dispute resolution – in World Trade Organization (WTO) adjudication, focusing on environmental disputes. WTO tribunals have often been faced with potential changes in international legal norms or changes in relevant facts. The chapter analyses the approach to the standard of review developed under the Agreement on the Application of Sanitary and Phytosanitary Measures. While this approach avoids WTO adjudicators determining questions of scientific correctness, it requires them to decide what counts as an adequate risk assessment process. The chapter then analyses the necessity tests developed by WTO adjudicators for scrutinising measures that pursue a permissible regulatory aim but also restrict a treaty-protected interest in trade liberalisation. Finally, the chapter interrogates an aspect of the WTO’s ‘chapeau jurisprudence’ that many commentators have read as a desirable example of international tribunals engaging in a procedural form of scrutiny and pushing regulating States to consider affected foreign interests.