Lecture Notes on International Environmental Law
Definition of international law
A body of legal rules considered binding upon states in their mutual relations.---Source: The International Law Dictionary
The term binding means that states (nations) are required under international law to comply with certain rules or responsibilities.
Types of international law
Customary law (the original type of international law)
Treaty law (has become more common in recent decades)
Resolutions (non-binding documents adopted by international bodies by majority votes)
Customary law and treaty law are considered hard law (real law), whereas resolutions are commonly referred to as soft law (something that falls short of being real law)
The Nature of Customary Law
Definition---norms of behavior observed by numerous states over time which they consider to a legal requirement.
Additional observations:
-Customary law is not written down in the written codes
-Customary law is considered to be binding on all states, except those that made an
effort to object to a norm while it was becoming widely accepted by other states
-To determine what the customary law is on a subject, one should simply view the
past behavior of states. Since this can be a very cumbersome task we look to two
types of interpretations of what the customary law is at any given time of history.
1. the writings of noted legal scholars who express what they observe as the
norms of behavior of states
2. the written opinions of judges in international court cases
A famous court case is the Trail Smelter Case decided in 1941. The US brought suit against Canada for air pollutants from a smelter near the border with the State of Washington, which were causing damage to agriculture in the latter. A special tribunal found in favor of the US and Canada was assessed a modest fine and ordered to take steps to correct the situation.
-The principles of customary law are generally rather vague leaving much room for
contrasting interpretations in specific cases
-In the modern world with many more states and high levels of interdependency,
customary law has become increasingly inadequate for resolving conflicts and
addressing problems.
The Nature of International Treaty Law
Definition: treaties are formal written agreements negotiated between states that spell out privileges and obligations in their relations among among each other. Treaties may be between as few as two states or as many as the entire number of states in the world (roughly 200)
Certain types of treaties are referred to by these names:
Conventions - treaties that are negotiated among large numbers of countries and available to all countries to become parties. (Note that in international law, the word convention always refers to a treaty of this type--and not to a meeting as in common use of the word in English)
Protocols - a treaty that follows or supplements an earlier treaty on the same same subject. The former are commonly referred to as framework conventions. Protocols usually have more specific regulations (teeth) than framework conventions, which simply provide a legal foundation for addressing a problem, but require little of the countries that accept them.
Charters - refers to treaties that establish international organizations, for example the Charter of the United Nations that was adopted in 1945.
Some examples of environmental treaties---
Limited Test Ban Treaty (1963)
Agreement on the Conservation of Polar Bears (1973)
Convention on the Law of the Sea (1982)
Convention on the Protection of the Ozone Layer (1985)
Montreal Protocol on Substances that Deplete the Ozone Layer (1987)
Convention on the Control of Transboundary Movement of Hazardous Wastes (1989)
Convention on Biological Diversity (1992)
Kyoto Protocol on Climate Change (1997)
Steps in the treaty process---
-Negotiations (talks, often extended, among representatives of countries in which they attempt to reach agreement on the precise wording of a treaty)
-Signature (once the wording of a treaty has been agreed upon, the countries involved in the negotiation sign the treaty indicating their support for it, but this does not constitute official acceptance of the agreement, nor a commitment to abide by it)
-Ratification (the nations that sign a treaty then must decide whether to go to the next step of ratifying it, which formally commits them to complying with the provisions of the treaty. States that have ratified a treaty are said to have become parties to the treaty. In the case of the US, this is done by a 2/3 vote of the Senate; often the Senate is unwilling to ratify treaties that have been negotiated and signed by the executive branch, such as the Comprehensive Test Ban Treaty that was rejected by the Senate in 2000).
Major Environmental Treaties and U.S. Status
-Entering into force (a treaty doesn't become official international law until it has been ratified by a specified number of countries--indicated in the treaty; in the case of the the 1982 Law of the Sea, it took 12 years to get the required 60 ratifications for the treaty to enter into force; while waiting for the required number of ratifications, the countries that have signed/ratified the agreement are expected to make good faith efforts to abide by the treaty, although they are not formally required to do so)
Barrett (2003) suggests that there are 225 multilateral environmental agreements in force (only four were adopted before 1945), and 72 other treaties adopted since 1945 that could still enter into force.
-Implementation and enforcement (after ratifying a treaty, it becomes necessary for most states to adopt implementing legislation--for example containing rules that will bring the country, and the people under its jurisdiction, into compliance with the treaty)
Fletcher School Multilaterals Project (good for complete texts of environmental treaties)
Environmental Treaties and Resource Indicators (ENTRI) - an online data base on international environmental treaties--can be used to get texts of treaties and check on ratifications
The Nature of Resolutions (Soft Law)
Definition: resolutions are documents adopted by a majority vote in an international body such as the UN General Assembly. They are introduced by one or more countries, often sent to a standing committee for consideration, returned to the full General Assembly for final debate and a vote.
Declarations (such as the Universal Declaration of Human Rights) stand out as more important resolutions.
Resolutions (and declarations) are not considered binding on countries, even on those that vote for them. If there is an overwhelming vote for a resolution, some might argue that it indicates a norm of behavior that might qualify as customary law (this, however, is a very disputed point in international law).
Examples of some important resolutions:
Stockholm Declaration (1972) - principles adopted at the landmark Stockholm conference to guide the development of international environmental policy
Rio Declaration (1992) - a similar document adopted at the Earth Summit in Rio.
Agenda 21 (1992) - the lengthy plan of action for implementing sustainable development, also adopted at the Earth Summit
Code of Conduct for Responsible Fisheries (1995) (full text)
While they are not officially binding on states (and thus are considered soft law), resolutions have an advantage over treaties in that they can be adopted relatively quickly, and have thus been referred to as instant international law.
Small countries and developing countries like resolutions, because in many international bodies there is a one nation/one vote rule. Since they are more numerous, they can often mount large voting majorities. The US often finds itself in a small minority of dissenters.
Resolutions can be the first step in addressing international environmental problems. The principles contained in them may become the basis for later negotiations on treaties.
How Is International Law Enforced?
Enforcement of international law is fundamentally different from national laws. It is the difference between vertical and horizontal legal systems.
Vertical systems characterize national systems in that there is a hierarchy of governing institutions that make the laws, detect violations, bring indictments, try cases, and impose sanctions (fines and prison sentences)---analogy with intercollegiate basketball games in the ACC
Horizontal systems, such as international laws, are characterized by law making and enforcement being handled at the level of those to whom it applies---analogy with pick-up basketball games.
Thus, the basic expectation is that nations have the responsibility to enforce international law on themselves. Since international law is basically consensual (sovereign states agree to rules and responsibilities only if they want to), they should be willing to enforce it upon themselves. If they don't, other nations may take steps to pressure them into doing so. Thus, enforcement normally proceeds as follows:
self-enforcement (states pass implementing legislation)
failing that, other states may complain about violations and ask the offending state to alter its behavior
if complaints fail, other states may apply sanctions such as expelling diplomats of the offending state or imposing trade sanctions
if all else fails, other states may intervene militarily, as a US led coalition did when Iran attacked Kuwait in 1991 and NATO did when ethnic cleansing was alleged to have occurred in Kosovo.
Why do nations usually comply with international law
A well known legal scholar named Louis Henkin once wrote:
It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.
Some would dispute this assessment, but assuming it is largely true, why might states be so willing to comply with international law even when it may not be in their immediate interest to do so.
reciprocity - a state cannot expect other states to observe international law, unless it is willing comply with the same principles of law. As soon as one state violates a law, others are relieved of their obligations to comply with those rules in dealing with that state. For example, a failure of the US to comply with treaties limiting nuclear arms, free up the Soviet Union/Russia to follow through on its reciprocal commitments.
preserve reputation as a law abiding countries - countries that fail to abide by international law can become outcasts and the target of sanctions that can have a very adverse impact on the country (examples are Libya, Iraq, and Serbia). Countries that have a reputation for being unreliable in fulfilling treaty obligations risk that other countries in the future will not be willing to negotiate further agreements with them.
stake in international law - in a larger sense, states (especially larger ones) that willy, nilly violate international law weaken its fabric--possibly resulting in a more disorderly world that doesn't work to the advantage of anyone.
domestic pressure - in some countries, the public may expect their governments to abide by international law, violations may become campaign issues in future elections or erode support for a government