The Scope of International Environmental Law
Nongovernmental Actors
Environmental NGOs
There are roughly two broad categories of actors in the environmental movement: the mainstream environmentalists and the deep ecologists.
According to the official line of mainstream environmentalism, development has to be sought, but standards must be developed so that environmental deterioration is minimized for the benefit of public health and quality of life.
At the other end of the spectrum, deep ecologists have argued for a “protection of environment for the sake of environment” approach based on the belief that the “the interests of nature” override or, at least, are at the same footing as the interests of humans. According to these advocates, the current paradigm for development, one that is derived from the Judeo-Christian tradition, views human life as the center of all creation. According to deep ecologists, life must be reconsidered under an ecological-ethical perspective allowing for the creation of small communities and survival through hunting, gathering, and gardening. An offshoot of the deep ecology approach is the animal rights movement, which has made its impact on international instruments, for instance, the instruments that prohibit whale hunting.
Deep ecology is a result of the resentment against globalization – and what is implied by globalization, free markets. Some strands of deep ecology, it could be argued, have assumed the role of an alternative ideology to that supported by free markets. The deep–ecology approach is based on different philosophical assumptions than those shared by the majority of people in the world today. As long as the assumptions differ, the chances for achieving a common ground are substantially reduced. Deep ecology stands against technological innovation and the model of industrialization as we experience it. It is tempting to point out, however, that pursuing “what is good for nature” will not be helpful in prescribing standards to manage and protect the environment. Only by attaching values – a human artifact – can the course of action be determined that is appropriate for the protection of the environment and human health.
That the deep-ecology approach has been developed and has juxtaposed itself to the current model of development is not surprising. A quest of modern civilizations has been for a return to an unadulterated mythical past, one that probably never existed. What is most striking is how deep ecology has affected some of the outputs of the mainstream environmental movement and international environmental law and policy. The influence of the deep-ecology approach on the mainstream environmental movement can be seen in the propagation of policies that favor strict preservation and the establishment of exclusionary protected biodiversity areas through the forcible exclusion of people. The effects of deep ecology can be seen on policies that ban animal hunting even when such hunting provides the sole source of income for certain indigenous societies. A deep-ecology slant can be detected in the pursuit of self-sufficiency in the markets for the transfers of hazardous waste and the articulation of policies that exhibit zero tolerance for pollution. The environmental movement had its birth in the developed world and has acted as an opposition to untrammeled development by emphasizing the importance of quality of life based on a clean environment. Environmental groups have lobbied governments in developed countries to adopt stringent regulations for the reduction of pollution and protection of natural resources. Although not always as successful as intended, these efforts have borne fruits and have improved the quality of life in many areas of the developed world.
Because many environmental problems have global dimensions, environmental groups have tried to spread their activities in the developing world. Environmental issues have received mixed response in the developing world. Sometimes governments support exclusionary protected areas for ecotourism or for achieving better control over ethnic minorities. But, in most cases, developing countries’ governments balk at taking decisive action on other problems, such as marine pollution or the supply of clean drinking water.
The NGOs of developing countries have been overwhelmed by the more prosperous NGOs of developed countries. In fact, much of the funding for developing countries’ NGOs comes from developed countries’ foundations. Some economists have claimed that developed countries’ NGOs have been able to set the agenda of the developing countries’ NGOs and that, accordingly, such agendas have little to do with the problems that developing countries face. Specific environmental problems prevalent in developing countries, such as dwindling supplies of drinkable water and malnutrition, are not adequately addressed.
Because of allegations of transposing developed world ideals to developing countries, many environmental organizations have changed their discourse and have proposed that the management of environmental problems has to be executed with the participation of local people. The participation of local communities, however, is not always applied in practice.
To be fair, environmental NGOs in developed countries are not always monolithic. Whereas for some members of these organizations, local participation is a simple switch in discourse to please new audiences, others view public participation as the means to change the substance of environmental policies. Community-oriented participation discourses, even if they do not end up in substantial public participation, are an important means of defining and legitimizing local interests. Community participation dialogues provide room for maneuverability to local groups who view the management of environmental problems as a way to address their economic and social needs.
Environmental NGOs have challenged further the club model of interstate relations and have sought to become involved in intergovernmental fora. Environmental NGOs have had significant influence in the shaping of some environmental regimes.
The evolution of the London Convention, the Whaling Convention, the Basel Convention, the CITES, and the World Heritage Convention has been influenced substantially by the actions of environmental NGOs. In other cases, the impact of environmental groups has been weaker but, nevertheless, has remained influential. NGOs have attempted to infiltrate international organizations that are not prima facie confronted with environmental issues, such as the WTO, with less success. Interestingly, developing states, which are now entering these club-type organizations, are less prone to welcome NGOs than their developed countries’ counterparts.
Industry NGOs
Industry NGOs are not as visible as environmental NGOs, but they are not less powerful. Actually, in some fora, where expert advice is needed, industry could appear more credible because it has the resources to put together the expertise and, thus, provide an authoritative analysis of an environmental issue. It has been claimed, for instance, that industry NGOs are successful in the European Commission – the initiator of legislative proposals within the European Union.
Industry NGOs are generally perceived as reluctant to provide leadership for the abatement of environmental problems for which industries are responsible. Industry has attempted to delay or to curtail environmental action when such action is perceived as too costly. Industry has claimed frequently that scientific uncertainty is a valid reason for inaction. The standards that some industries apply for the protection of environment in developing countries often lag behind those adopted in developed countries.
Having said that, it would be wrong to classify all industries as culprits of environmental deterioration. Some industries have been innovators and are at the forefront of environmental engineering.Within an industry or a company are often dissenting voices that attempt to reorient discourse to corporate responsible solutions and to redefine the allegiance of corporations not strictly to shareholders but to a broader category of stakeholders that includes employees, the surrounding communities, and the general public. Industry has learned the hard way that environmentally irresponsible behavior is not only costly in terms of liability but also in terms of reputation.
Scientists
The role of science has been prominent in the development of international environmental law.Scientists, however, rarely agree on the definition of an environmental problem or the prescriptions for its solution. Sometimes the disagreement is the result of the use of different data (for instance, in fisheries) or of the application of different models (climate change). Given the lack of scientific certainty, most decisions on environmental matters have to be made based on political considerations.
However, scientific communities and informal networks among scientists often frame the environmental discourse. UNEP,WMO, and national scientific institutions (such as the United States National Aeronautics and Space Administration [NASA]) have executed the research on ozone depletion. The Intergovernmental Panel on Climate Change (IPCC) was organized by UNEP and WMO to provide insights on the climate change debate.
The positions of scientists are used often by proponents or opponents of an environmental action to advance their own view. The climate change discourse has been influenced by the inability of scientists to reach consensus on whether climate change really exists and its possible repercussions. The lack of scientific consensus has provided some countries with justification to delay purposive action for the abatement of carbon dioxide emissions, the main culprit of climate change.
By contrast, scientific consensus on the ozone hole over Antarctica precipitated decisive action to phase out ozone-depleting substances. Environmental law could be conceived as a series of dialectic interactions between what are perceived as opposing trends: one devoted to development as usual and the other to the injection of eco-development as “new” paradigm for development. The role of science in these series of dialectic interactions is the role of facilitator.
Indigenous Peoples
The Indigenous Peoples Forum is an informal network of indigenous groups that seeks to bring to prominence issues that affect indigenous peoples. The Indigenous Peoples Forum lacks a clear legal personality. However, it has been able, through a series of gradual steps, to establish itself as an influential international institutional network.
Indigenous peoples have asserted their fundamental human rights through the Draft Declaration on the Rights of Indigenous Peoples. A number of ILO standards, which are currently in force, are not considered sufficient to guarantee indigenous peoples rights. The interaction of indigenous peoples with environmental organizations has been ambivalent. Indigenous peoples have occasionally colluded with the environmental movement against corporations whose pollution adversely affects their traditional livelihoods. Other times, however, the indigenous people movement has collided with the environmental movement, especially, with regard to land-use rights. Environmental groups prefer state control over land, especially forested land. Environmentalists are not convinced that indigenous groups, if left to their own devices, would opt for environmentally sound solutions. Indigenous peoples prefer to exercise control over the land through property rights and, thus, to retain discretionary control over its use. The preference of environmental groups for state control perpetuates, as should be expected, a rift between the indigenous peoples’ movement and the environmental movement.
INTERNATIONAL LAWMAKING PROCESS
International law develops as states get together to calibrate their interaction and formalize their relationships. States frequently enter into agreements with one another about matters of mutual concern. This way, states explicitly set the law that would regulate their behavior. Other times, states engage in practice under the perception that such practice constitutes or should constitute law. If such practice is general and is exercised under the opinion that it constitutes law, it is considered general custom and, thus, a source of international law. Law could be derived from what are called general principles of law, judicial decisions, and the teachings of the “most highly qualified publicists.”
Article 38 of the Statute of the International Court of Justice is cited most often as the authoritative text on sources of law. According to that article: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
1.International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2.International custom, as evidence of general practice accepted as law;
3.The general principles of law recognized by civilized nations;
4.Subject to provisions of article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary for the determination of the rules of law.
Treaties
International agreements, called “treaties,” “conventions,” “covenants,” and “charters,” could be bilateral or multilateral. Usually, multilateral treaties signed by a number of states are deemed to have lawmaking effects, whereas bilateral treaties are viewed more or less the way contracts are viewed in domestic law (as having effect between the parties that signed them). The process of multilateral treaty creation involves a number of states that wish to resolve an issue of international importance.
These states usually request an international organization with authority on the subject matter (for instance, the World Health Organization, in matters of public health, the International Labor Organization on labor matters) to establish a working group to draft a treaty. This initiates a process of treaty negotiation and bargaining until a consensus is established. Usually, states attempt to reach consensus during treaty negotiations, which often results in the adoption of the lowest common denominator.
Instances exist, however, in which states would adopt a convention without a consensus. Lack of a consensus in the adoption of a convention is likely to affect the lawmaking character of the convention. This is particularly the case if countries explicitly refuse to sign or ratify the convention.
The Vienna Convention on the Law of the Treaties is the document used frequently to interpret the text of many international treaties. The Vienna Convention has codified some of the general principles that are enshrined in the law of the treaties such as pacta sunt servanda and that treaties must not in principle have retroactive character. The Vienna Convention demonstrates a preference for the peaceful settlement of disputes and requires parties to perform their treaty obligations “in good faith.” The Vienna Convention provides for the establishment of a Conciliation Commission in case a disagreement arises during treaty performance, but the decisions of the Conciliation Commission are not binding.
The convention provides for the possibility of reference of a dispute to the ICJ or arbitration. States are free to make reservations to specific articles of a convention. This creates in effect an `a la carte convention system. Too many reservations on the text of a convention undermine the authoritative character of the convention. For this reason, certain treaties prohibit reservations. Many environmental and human rights treaties do so. The prohibition of reservations enhances the consistency and uniformity of treaties but, at the same time, restricting the possibility of reservations implies less state participation in the treaty regime. If reservations are allowed, without any restriction, state participation is facilitated but the lawmaking attributes of a treaty are diluted.
After a convention is signed, it enters into a process of ratification. This means that states must ask their legislative organs (e.g., a parliament) to adopt the convention and to incorporate it into the domestic legal order. Unless a state ratifies a convention, the convention does not have binding effects on that state (provided that the rules included in the convention have not become a rule of customary law).
A convention specifies in one of its articles the number of states that are required for ratification. After this prespecified number of states ratify the convention, it is said that “the convention enters into force,” that is, it has become binding law among the states that ratified it. The number of states required to ratify a convention varies depending on the reach of the convention. The Law of the Sea Convention (UNCLOS), which is considered the constitutive instrument of the law of the seas, required sixty ratifications. Because of its wide reach, it took fourteen years for the UNCLOS to enter into force. For some conventions, ratification by certain states is important because nonratification by these states would risk depriving these conventions of a convincing legal authority. For instance, the civil liability instruments for oil pollution attempt to ensure the participation of states where major carriers of oil reside. The climate change instruments attempt to ensure the participation of countries that are major emitters of carbon dioxide.
Many international environmental treaties are umbrella framework treaties – setting the parameters of international environmental action – followed by protocols defining the specific standards of state behavior. The model of a framework convention followed by specific protocols has been adopted as the regulatory archetype for a number of environmental problems, such as ozone depletion, acid rain, and climate change. The rationale behind the framework-protocol approach is for states to commit to engage, initially, in cooperative behavior to manage what seems to bean emerging environmental problem through a framework convention. As scientific evidence accumulates or the political will manifests to tackle the problem more decisively, further specific regulatory protocols can be adopted.
The framework/protocol legislative approach is not the only regulatory process for the management of environmental problems. In the case of marine pollution, specific conventions, such as the 1972 London Dumping Convention and the 1973 MARPOL Convention, preceded the 1982 UNCLOS. The UNCLOS is the framework convention that has established the basic rules that govern the oceans. The process of adopting a constitutional convention that attempts to address environmental and other issues presented in the exploitation and protection of a medium (for instance, seas, water, air) can be time-consuming, however. In the case of the UNCLOS, it took more than ten years to adopt a coherent text for the protection of the oceans.
Custom
The relevance of custom as a source of international law has been debated. Some scholars maintain that custom is an authoritative source of international law, whereas others purport that custom is anachronistic and even hard to prove in an international environment rich in bilateral and multilateral agreements among states.
According to article 38 of the Statute of the International Court of Justice, there are two elements that are needed for the establishment of international custom: general practice and opinio juris (opinio juris sive necessitatis). General practice could be derived from a number of material acts, for instance, domestic law, newspaper reports, and government statements. Opinio juris requires that states behave in a certain way under the stated belief, which does not have to be a genuine belief, that their behavior is law or is becoming law. The International Court of Justice has established that some degree of uniformity is required for custom to become law. However, it is possible for custom to develop if a number of states follow consistently a practice that has had an impact on international relations because of the authoritative influence of these states. The role of maritime powers in the establishment of the law of the sea, and the role of the United States and the Soviet Union in the development of space law are indisputable. Thus, even in the creation of international custom that, according to article 38, must be based on general practice, one can decipher the role of authoritative power in lawmaking. For the practice of a state to develop into custom, it is not necessary for that state to believe that its behavior constitutes law.
What is necessary is that its behavior remains unchallenged by other states . For a state not to be bound by customary international law it has to have objected consistently to the creation of such law (the doctrine of persistent objector). Opposition expressed for the first time after a rule has been established firmly will not generally prevent a state from being bound.
Eventually, one can never prove a rule of customary law in an absolute manner but only relatively. After all, the Statute of the International Court of Justice speaks of “general practice” – not universal practice. It has been maintained that the consent of half of the states of the world is sufficient or that the consent of third world states is necessary. Arguments also have been made about the existence of regional custom that is established among the states of a particular geographic region.
Special custom prevails over general custom – lex specialis derogat legi generali – unless the general custom amounts to what has been called jus cogens or a peremptory norm of international law. Examples of jus cogens include the prohibition of genocide and slave trade and the principle of diplomatic immunity. Treaties can provide evidence of customary international law – unratified treaties as well. This is so because treaties provide irrefutable evidence that some states believe that a certain practice is law.
It is more difficult to try to assemble state practice found in disparate sources that could provide convincing proof of the combination of elements of state practice and opinio juris.
It is apparent from the development of customary international law that protest and consent play a vital part in the formulation of international law. The weight attached to protest and consent depends on the number and authoritative power of states that support them.
