Routledge Handbook of International Environmental Law

Erika J. Techera

• Publisher: Routledge
• Year: 2012
• Print ISBN: 9781138838970, 9780415687171
• eBook ISBN: 9781136202865
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

The Routledge Handbook of International Environmental Law is an advanced level reference guide which provides a comprehensive and contemporary overview of the corpus of international environmental law (IEL). The Handbook features specially commissioned papers by leading experts in the field of international environmental law, drawn from a range of both developed and developing countries in order to put forward a truly global approach to the subject. Furthermore, it addresses emerging and cross-cutting issues of critical importance for the years ahead.

The book is split into six parts for ease of reference:

• The Legal Framework, Theories and Principles of International Environmental Law - focuses on the origins, theory, principles and development of the discipline;

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• Implementing International Environmental Law - addresses the implementation of IEL and the role of various actors and institutions, including corporations, intergovernmental organisations and NGOs;

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• Key Issues and Legal Frameworks - brings fresh perspectives of the common general issues of international environmental law, such as biological diversity and marine environmental law;

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• Regional Environmental Law - explores the specific regimes developed to address regional environmental issues, considering the evolution, prospects and relationship of regional law and mechanisms to IEL;

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• Cross-Cutting Issues - considers the engagement of international environmental law with other key fields and legal regimes, including international trade, human rights and armed conflict;

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• Contemporary and Future Challenges - analyses pressing current and emerging issues in the field including environmental refugees and climate change, REDD and deforestation, and 'treaty congestion' in IEL.

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This up-to-date and authoritative book makes it an essential reference work for students, scholars and practitioners working in the field.

Part I

The legal framework, theories and principles of international environmental law

1

The environment and international society

Issues, concepts and context

James R. May and J. Patrick Kelly*

International environmental law is the study of the norms, means and processes to address global and regional environmental challenges. The world’s domestic and transboundary ecosystems are under enormous strain. International environmental law includes the study of how treaties, principles, custom and other sources of international law can be used to address these strains. Accordingly, this section provides a brief survey of threshold principles in international law, including common issues, concepts and definitions, and associated international law constructs. In addition, it views how these concepts are shaped by external and emerging notions of global trade, economics, sustainability and environmental rights.

Introduction

The world’s resources are under enormous strain. The population of the planet has eclipsed seven billion people, many if not most of whom desire a better quality of life. Population stress naturally contributes to the rising demand for food, energy, metals and materials. These demands create enormous pressure on domestic and transboundary ecosystems.

International environmental law is the study of how treaties, principles, custom and other sources of international law can be used to address these strains. This book examines what international environmental law is, and how it is or can be used to address the planet’s wide array of complex and seemingly intractable challenges, including human-induced climate change, resources-based conflict, rising sea levels, loss of timber, biological and cultural diversity loss, diminution of liveable land and fresh water, pollution of the oceans, seas and coastal areas, persistent organic pollutants, by-products of technology and nanotechnology, overharvesting of forests and oceans, global disposal of chemical and hazardous wastes, trade in endangered plants and animals, minerals harvesting in the polar regions and a human right to a quality environment.

Part I of this volume introduces the legal framework, theories and principles of international environmental law, and how it is implemented and enforced, including ethical considerations. This section provides a brief survey of threshold principles in international law, including common issues, concepts and definitions, and associated international law constructs. In addition, it views how these concepts are shaped by external and emerging notions of global trade, economics, sustainability and environmental rights.

What is international environmental law? Common issues, concepts and definitions

As discussed elsewhere in Part I, international environmental law provides and describes the global institutional means for engaging the global ecological challenges. It is conceptually commodious, a reflection of interconnected ends that can be global, parochial and everything in between. It consists of a loose affiliation of treaties, principles and customs that define and describe norms, relationships and responses among and between states to meet these many global ecological challenges.¹ It can be poetic and inscrutable, as shown by the definition of ‘sustainable development’: ‘development … that … meets the needs of the present without compromising the ability of future generations to meet their own needs.’² Regardless of whether it appears as positive hard law, normative soft law, or a hybrid of these, international environmental law is essential to the global order of environmental law.³

International environmental law is also evolutionary. It reflects the confluence of 500 years of opinio juris, lex suprema and customary law coupled with more modern conventions and general principles of international environmental law, with added ingredients of environmental ethics, ecology and economics and human rights.

Moreover, as Part II of this book suggests, most treaty negotiations – from climate change to fish stocks – reflect endogenous political, cultural, religious and ethnic consilience and division, and exogenous influences respecting who should pay for what and when, who participates, and who decides. It reflects the inescapable binomialism of the global age: north and south, east and west, developed and developing, financially rich and poor, biologically endowed and barren, givers and takers around the globe. Part II considers concepts of implementation, including international environmental institutions, stakeholders, funding, dispute settlement and the role of multinational corporations. Confounding, cross-cutting factors also serve as a kind of proxy for global realpolitik, including trade, economics, property rights, constitutional constraints and conflict, as addressed in Part V.

Sceptics argue that international environmental law is unnecessary at best and unwise at worst. This view invites a political and societal backlash by trivializing huge moral and ethical challenges, engendering unnecessary counter-colonial effects, facilitating scapegoating, diluting sovereignty and autonomy, creating ‘spill over’ effects that curtail private property, and undermining more sensible cooperative efforts. International environmental law is also shaped by principles of geography, population distribution, engineering, land use planning and the applied sciences.

As suggested in Part II, international environmental law also has a dizzying array of stakeholders. It is shaped by nation-states, international institutions such as the United Nations Environment Programme (UNEP), non-governmental organizations (NGOs) such as the International Union for Conservation of Nature (IUCN), corporate associations, individuals, academics and the concern for future generations.⁴

To complicate matters, as Part IV on regional environmental law suggests, no two countries implement international law in the same way. The constitutions of some countries allow the head of state to negotiate and implement binding agreements unilaterally. Other countries require parliamentarian ratification and legislation to implement an international accord. Many countries fall somewhere in between. Domestic implementation is also complicated by domestic policies concerning the use and disposition of natural resources, energy policies and national security. Many countries lack the resources and statutory and regulatory architectures to implement, or the wherewithal and resources to enforce, international laws. Correspondingly, Part V addresses cross-cutting issues, including trade, financial investment, intellectual property, human rights, global constitutional environmental rights and environmental protection during conflict.

The international legal constructs

International law constructs include principles, rules and norms that are binding on nations and sub-national actors. Environmental legal principles and policy prescriptions emerge from the use of international sources and processes to make law and to cooperate to solve problems. While international law and legal processes may be mechanisms to address transboundary environmental problems, it is a relatively undeveloped and cumbersome system, not an integrated, hierarchical system of universal rules and principles.

International law is complex, to say the least. The international legal system is a decentralized system of independent nation-states with different histories, values and interests. The international system lacks a legislature with the authority to make law, an authoritative court with mandatory jurisdiction to articulate norms, an executive with delegated authority to make law or execute legal norms, or an international police force to enforce norms.

Accordingly, international society has been conceived as made up of independent states that must consent to restraints on their authority. These limitations make solving problems on the basis of consent or consensus difficult and slow.

Hence, the international legal system has been criticized for its anarchic character. Critics particularly within the international legal community have called for a new sense of common humanity to transcend the limited vision of states asserting sovereignty rather than solving common problems.

The primary means of creating international environmental norms are treaty, customary law, general principles of law and soft law processes. Under conventional theory, substantive international law is largely consensual. International law is formed by express consent in the case of treaty law and implied consent in the case of customary international law (CIL).⁵

Treaties negotiated, signed and ratified by nations have several distinct advantages as a form of law-making. The norms created and nations bound are clearly identified. Nations have agreed in advance to accept such norms as law and to comply. In several cases the treaties contain the means of resolving disputes and the sanctions or procedures for encouraging or policing compliance. In some cases specific legal norms in treaties may become CIL if the requirements for customary law are met. On the other hand, treaty norms do not generally bind non-parties states that may be useful or necessary to achieve the ends of a treaty.

One of the most significant developments of the last 50 years has been the birth of Multilateral Treaty Regimes (MTR). Such MTRs are not just treaties with defined norms. The treaty instruments, by their terms, create ongoing legislative and administrative bodies that expand the limited contractual nature of treaties themselves. For example, the Ozone Layer Treaty Regime discussed elsewhere in this book began with a framework convention that created an ongoing institution, a conference of parties that meets regularly and a means for resolving disputes and/or managing compliance.⁶

The conference of parties or another mechanism with the authority to make decisions such as the Ministerial Conference of the World Trade Organization (WTO) will typically monitor new information, technology and needs. The Conference of Parties will then assess the need for amendments or protocols that may define the standards with greater particularity or expand the subject matter of the treaty to new areas such as the expansion of the trade regime into intellectual property. As discussed in chapters by Stephens and Carr, some MTRs such as the WTO have formal dispute settlement bodies that adjudicate disputes and render formal opinions that become a form of precedent that creates law or at least ongoing rules of decision.

Such treaty regimes mu...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface
• Acknowledgements
• Contributors
• List of abbreviations and acronyms
• Introduction
• Part I: The legal framework, theories and principles of international environmental law
• Part II: Implementing international environmental law
• Part III: Key issues and legal frameworks
• Part IV: Regional environmental law
• Part V: Cross-cutting issues
• Part VI: Contemporary and future challenges
• Bibliography
• Index