International Environmental Law

Ecological Interdependence and International Law

• Ecological interdependence does not respect national boundaries, and issues previously considered domestic concerns now have international implications.
• Progress in developing international legal control of activities has been gradual, piecemeal, and often reactive to particular incidents or new scientific evidence.

Sources of International Law

• Article 38(1) of the Statute of the International Court of Justice lists four sources of international law:
  • International conventions establishing rules expressly recognized by contesting states.
  • International custom as evidence of a general practice accepted as law.
  • General principles of law recognized by civilized nations.
  • Judicial decisions and teachings of highly qualified publicists as subsidiary means.

Non-Legal Factors Influencing International Environmental Law

• Science, economics, politics, and other social objectives and values influence international environmental law.
• Factors increasing the likelihood of achieving an agreement:
  • Greater scientific consensus about the cause and seriousness of a problem.
  • Increased public concern.
  • Perception of fair share among negotiating states.
  • Increase in short-term political benefits.
  • Existence of previous, related multilateral agreements.
• Factors decreasing the likelihood of achieving an agreement:
  • Upward costs of environmental controls.
  • Increase in the number of states negotiating a treaty.
  • Existence of an appropriate international forum for negotiation.
  • Nature of arrangements for dealing with non-compliance.

Traditional International Legal Order: A Challenge

• The traditional international legal order is based on:
  • Legislative, administrative, and adjudicative functions of international law.
  • Political boundary based on territory.
  • State sovereignty as a cornerstone of international law.
• Challenges to the traditional order:
  • Role of non-state actors in environmental degradation.
  • Asymmetry of power and resources among states.
  • Environmental problems unfolding over extended periods, making it challenging to establish clear causation and attribution.
  • Limited legal mechanisms for representing the interests of future generations.

Sovereignty and Territory

• States are sovereign and have equal rights and duties as members of the international community.
• Three principal corollaries of sovereignty:
  • Jurisdiction, prima facie exclusive, over a territory and permanent population.
  • Duty of non-intervention in the area of exclusive jurisdiction of other states.
  • Dependence of obligations arising from customary law and treaties on the consent of the obligor.
• Exclusive jurisdiction over territory includes:
  • Land within its boundaries, including the subsoil.
  • Internal waters, such as lakes, rivers, and canals.
  • Territorial sea, including its seabed, subsoil, and resources.
  • Airspace above its land, internal waters, and territorial sea.
• No exclusive jurisdiction: 'global commons' (high seas, outer space, atmosphere, Antarctica).

International Legal Order vs. Environmental Order

• The international legal order does not co-exist comfortably with an environmental order that consists of a biosphere.