When do states implement environmental obligations? The answer is often presented as a dichotomy between sanctions and cooperation. But making European and international law work isn't about choosing one over another, argues Andreas Corcaci. Instead, different paths lead to success, and courts and committees can improve outcomes through intermediation
Picture yourself as a government minister. An international court just ruled against your country’s environmental practices. Do you implement the ruling because you fear sanctions, or because you believe the decision is legitimate? This choice shapes how countries respond to environmental obligations – and whether our planet is protected from harm.
My analysis of over 20 major environmental cases reveals a striking finding: both enforcement and management work – but only under specific conditions. Intermediation by courts and committees improves implementation – and, over time, even helps states reach negotiated settlements.
Protecting the environment is a global task that doesn’t stop at borders. Damage to nature and people alike from industrial activity – or even environmental disasters – can result from countries ignoring their legal obligations. It can also lead to conflicts that reach across borders and territorial levels of governance.
Protecting the environment is a global task that doesn’t stop at borders
Such situations can create conflicts between states, which are resolved beyond the nation state. This happens through legal and administrative decisions or negotiated settlements that may emerge from court proceedings over time. In either case, they must be put into practice.
The world faces an implementation dilemma. Environmental damage is intensifying; natural habitats are disappearing. Right-wing governments and populist regimes are undermining protective measures. Without specialised environmental courts, implementation becomes the last line of defence in a complex international arena.
But knowing what countries must do is not the same as them actually doing it. I developed an analytical framework to better understand when states implement their obligations, and how they can achieve success – even outside official proceedings. Using Qualitative Comparative Analysis (QCA), I discovered that several approaches could succeed – but only under specific conditions.
I examined major environmental cases spanning hazardous waste, water and air resource management, and marine protection, involving powerful courts like the Court of Justice of the European Union and cooperative committees from environmental agreements like the Basel Convention.
With climate challenges intensifying and environmental degradation accelerating, international institutions urgently need effective implementation mechanisms. The traditional enforcement approach treats environmental obligations like traffic rules: make violations expensive enough, and behaviour changes.
The traditional approach to environmental obligation enforcement uses a 'stick-only' approach. But could incentives work more effectively?
Japan's response to the Whaling in the Antarctic case proves this works – at least temporarily. After the International Court of Justice ruled Japan's whale research programme violated international law, Japan initially complied by introducing a new programme but questioned the Court's legitimacy. This triggered diplomatic backlash. Ultimately, Japan withdrew from the International Whaling Commission altogether, resuming commercial whaling.
This case shows the power and limits of enforcement. Strong international pressure forces immediate adaptation, but without legitimacy, countries may even exit the system entirely. This is what happens when populist governments undermine international institutions.
But this 'stick-only' approach misses part of the story, as recent court rulings suggest. Over time, a 'carrot alternative' emerged: the management approach. This flips the script, focusing not on sanctions but on national capacities and transparency, reflecting broader patterns in multilevel environmental governance. Countries often want to adapt but lack technical capacity, clear guidelines, or resources.
Bhutan's decade-long struggle with hazardous waste reporting illustrates this perfectly. Rather than sanctions, the Basel Convention Implementation Committee intermediated, providing training, technical assistance, and financial support. They helped Bhutan build reporting systems from scratch based on their high legitimacy. Result? Bhutan submitted complete reports and a compliance action plan by 2020. Case closed.
Similarly, the EU's approach to environmental policy now emphasises capacity building alongside traditional implementation procedures. The EU's environmental directives succeed not just through infringement proceedings, but technical assistance, funding programmes, and collaborative governance networks.
Here‘s the most surprising discovery: courts and committees don’t just issue decisions, they act as intermediaries. These bodies change, improve implementation over time, and facilitate negotiations – a finding that challenges assumptions about how judicial institutions operate.
Courts and committees act as intermediaries, improving implementation over time, and facilitating negotiations. This finding challenges assumptions about how judicial institutions operate
The Southern Bluefin Tuna case shows this in action. Japan disputed the jurisdiction of the International Tribunal for the Law of the Sea while continuing experimental fishing programmes. Instead of forcing confrontation, provisional measures created negotiation space. Separated in time, the case was resolved through an extra-judicial agreement incorporating the court’s key concerns while allowing Japan some fishing activities.
Similar temporal patterns emerged repeatedly. The Aerial Herbicide Spraying case between Ecuador and Colombia ended with negotiated agreements establishing buffer zones and a monitoring commission. The Swordfish case between Chile and the EU concluded with technical cooperation agreements – not binding judgments.
The framework I developed accounts specifically for temporality, showing how conditions can change over time through intermediation.
Three policy recommendations emerge from my research:
The Water Convention's graduated approach – voluntary assistance first, rights suspension for persistent violations later – offers a proven model in multilateral environmental agreements. Governments need frameworks combining support with consequences.
Implementation succeeds when countries view institutions as legitimate. This means procedural transparency, civil society, and fair representation in decision-making bodies. Research confirms that high legitimacy improves implementation.
Courts and committees are independent, and have tools to make legal obligations transparent: expertise, rule interpretation, assistance, and conflict resolution. Recognition and integration of these intermediation functions in implementation mechanisms makes a difference.
The stakes have never been higher. The International Tribunal for the Law of the Sea delivered a groundbreaking advisory opinion in May 2024, ruling greenhouse gas emissions constitute marine pollution under international law.
The International Court of Justice is expected to issue its historic climate advisory opinion in 2025, according to the Center for International Environmental Law. This ruling could create powerful new precedents on environmental and climate obligations globally.
Environmental protection succeeds when legal and managerial institutions become bridges between conflicting interests and abilities, not just arbiters of rights and wrongs. The planet's future depends on how well we build those bridges.
