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date: 16 January 2018

International Environmental Law

Summary and Keywords

Over the course of the twenty-first century, international environmental cooperation has been spurred through various new international environmental institutions and programs, and a dramatic strengthening of international environmental law-making. With the burst of environmental treaty-making the corpus of international environmental law (IEL) has expanded to include significant international environmental agreements (IEAs) in the sphere of climate change, ozone layer depletion, biodiversity, and so on; as well as the recognition of important principles such as good neighborliness and the common heritage. IEAs function similarly to international treaties—indeed, the only difference between an IEA and other international treaties lies in the subject matter. IEAs function as the instrument for laying down the principles of international laws binding upon states was established by the 1815 Congress of Vienna. Over the years, IEAs have not simply increased in number, but have also undergone an evolution in their structural design. In the early 1930s, IEAs tended to be simple in terms of their requirements, vague in terms of their objectives, and utilitarian in their ethos for protecting the environment. With time, however, as environmental sciences evolved to incorporate new principles and concepts, the structure of IEAs has followed in tandem to incorporate the new understandings and the new concerns.

Keywords: international environmental cooperation, international environmental laws, international environmental agreements, IEL, IEAs, environmentalism

Introduction

Our twenty-first century has been characterized by a growth of “global consciousness” (Iriye 2002). The phenomenon of our “international society” (Bull 1997) has been reflected in the rise of intergovernmental organizations and transnational advocacy networks, as well as in the remarkable growth of international cooperation, especially in the field of the environment. International environmental cooperation has been spurred through various new international environmental institutions and programs, and a dramatic strengthening of international environmental law-making.

Indeed, there has been a major burst in environmental treaty-making from the 1970s onwards. Based on the United Nations Environment Programme (UNEP) Register of International Treaties and Other Agreements in the Field of the Environment, the number of international environmental agreements (IEAs) adopted by the international community in fact doubled from the 1960s to the 1970s, commensurate with an increase in global environmental concern and an intensified willingness to cooperate for international environmental protection.

The corpus of international environmental law (IEL) now includes significant IEAs in the sphere of climate change, ozone layer depletion, biodiversity, marine pollution, fauna and flora protection, hazardous wastes, fisheries, environmental impact assessment (EIA), and public participation, inter alia; as well as the recognition of important principles such as good neighborliness, the common heritage, precaution, sustainable development, the polluter-pays, and common-but-differentiated responsibilities. The field has also seen the transnational activism of various non-traditional actors, such as nongovernmental organizations (NGOs) and epistemic communities, and the emergence of a growing number of environmental courts and tribunals.

Scholars often differentiate between “hard” and “soft” law. “Soft” IEL is understood to be “deliberately nonbinding in character but still ha[s] legal relevance” (Skjaerseth et al. 2006:104). Thus, “soft” IEL includes the “nonbinding declarations, codes, guidelines, and recommended principles” (McDorman 2004:337), as well as the “resolutions by international organizations and international plans of action or codes of conduct” (Skjaerseth et al. 2006:104). In the parlance of IEL, “soft” IEL would thus include the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment, the 1987 Brundtland Report (Our Common Future), the 1992 Rio Declaration on Environment and Development, as well as the resolutions and declarations adopted by UNEP, the Commission on Sustainable Development (CSD), and international environmental conferences such as the International North Sea Conferences (INSC) (Skjaerseth et al. 2006). “Hard” IEL, on the other hand, refers to the “international treaties and international legal principles” (McDorman 2004:337), and is thus taken to comprise two main components: customary law and treaty law (Lang 1999:170).

IEL is now a major subfield of International Law (IL), with its own distinctive identity, and its own set of treaties, customs, judicial decisions, norms and principles. Further, as in any other body of law, IEL also has its own share of unresolved or “unresolvable” legal issues. Prominent among these is contention relating to: the legal status of many of the principles mentioned above; locus standi; liability; the proposal for an international environmental court; the strategies for IEA formation, their effectiveness, and the participation incentives incorporated in the IEAs; the rights of indigenous peoples; environmental justice and equity principles; intergenerational equity and the rights of future generations; and the rights of investor firms against those of host countries, inter alia.

To fully appreciate IEL, both its present status and likely future developments, there is a need to understand the sources of IEL; the jurisprudence in the discipline; and the mechanics of the legal instruments of IEL, viz. their development, their implementation and compliance, their effectiveness, and the level of international support thereof. Accordingly, this essay is divided into four sections. In the first section, the essay focuses on the various sources of IEL. The second section deals with the status of international environmental jurisprudence. In the third section, discussions center on the main instrument of IEL, viz. IEAs – their characteristics, their formation and evolution, their effectiveness, and the levels of participation in them. Finally, the fourth section provides some brief analysis on the future directions of IEL.

Sources of IEL

The term “source” as applied to IL is often deemed to be confusing and contentious (e.g., Slomanson 1995:10; Gamble Jr 1998). A simple understanding, however, considers “source” to be “where one may find the substantive content of International Law” (Slomanson 1995:9), and under this general precept the sources of IL are taken to comprise treaties, custom, general principles, and judicial decisions, in line with Article 38 of the Statute of the International Court of Justice (ICJ) (Slomanson 1995:9).

While it is generally accepted that there is a variety of “sources” of IL (e.g., Malanczuk 1997:35), there is no general agreement as to whether Article 38 of the ICJ Statute establishes a hierarchy of such sources (e.g., Czaplin’ski 1989:162). Within the domain of IEL, custom is often seen as being less important than treaties (Bodansky 2006:305), mostly due to the fact that IEL is still young and “duration or passage of time” is heeded as being essential for the development of an international custom (Brownlie 1990).

Notwithstanding the above, arguments have been made that the time element is not that relevant if there is extensive State practice (Malanczuk 1997:46). In its 20 February 1969 decision on the North Sea Continental Shelf cases, the ICJ weighed up the possibility of the development of customary IEL, even though there was a short time duration, with the caveat however that there needs to be extensive and uniform State practice. The Judgment reads as follows (para. 74):

Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. [Source: ICJ, www.icj-cij.org/]

Though in this specific case the ICJ opined that there was insufficient evidence of general State practice, the judgment nonetheless established the possibility for the development of customary IEL over a short time frame if there has been “extensive and virtually uniform State practice.” However, in many cases, establishing such an evidentiary rule of a “general practice accepted as law” (Article 38, ICJ Statute) is not a clear-cut or easy undertaking. Customary law can therefore be an elusive and fuzzy concept, and has aptly been characterized as being “a highly difficult and complex area of law” and as “a body of law in constant movement and with contents and contours that are sometimes not easily distinguishable” (Lang 1999:170). Within the IEL context, it is commonly agreed that the Stockholm Declaration was instrumental in establishing the basic norms of customary IEL (Kiss and Shelton 1991; Palmer 1996).

Treaty law, on the other hand, is more easily comprehensible as it embodies the written international agreements and protocols that have been adopted by the international community. International treaties are deemed to be the “primary” source of international law (Slomanson), and to form “the juridical basis for creating rights and obligations between the parties” (Levi 1991). The Vienna Convention on the Law of Treaties (VCLT) establishes treaties as “a means of developing peaceful cooperation among nations, whatever their constitutional and social systems” (preamble, VCLT).

Treaties are also considered to be important for the development of customary law. The role of a treaty vis-à-vis customary law is taken to be threefold: (i) declarative, whereby the treaty may contain customary norms binding at the time of its conclusion; (ii) crystallizing, where the treaty may constitute a final stage in a process of elaboration of customary norms; or (iii) generative, when the treaty may propose a new norm, to be subsequently confirmed by State practice (Czaplin’ski 1989:153, quoting E. Jimenez de Arechaga, former President of the ICJ). According to Czaplin’ski (1989:155–6), even “[m]ultilateral agreements which are not yet in force can also produce generative and/or crystallizing effects.”

While treaties may aid the development of customary law, as mentioned above, it is also true that the textual content of treaties is as well often predetermined by the prior adoption or existence of general principles of IL or of legislative declarations (Kiss and Shelton 1986:158, quoted from Lang 1999; Szasz 1992:158, quoted from Lang 1999). According to Sands (1995), “principles” can be of two types: those reflective of customary law, and those reflecting merely an emerging rule. One way of distinguishing between the legal effect of the two types of principles involves studying their “textual context, the specificity of [their] drafting, the circumstances in which [they] are relied upon, [their] use in treaties, and reliance on [them] by international tribunals” (Sands 1995:163 quoted from Lang 1999).

In an attempt to catalogue the principles of IEL, Lang (1999:171) has undertaken a comparative reading of four texts embodying IEL principles – viz. the 1972 Stockholm Declaration; the 1992 Rio Declaration; the 1996 UNEP’s Final Report on IEL aiming at sustainable development (UNEP/IEL/WS/3/2); and the 1995 CSD’s Background Paper on the identification of principles of IL for sustainable development. Based on whether the principles present in the four texts were more than twenty-five years in existence and on the frequency of their invocation in the four texts, Lang has proposed the following three typologies for the principles of IEL (i) principles of existing IEL, which are taken to comprise the principle of responsibility/liability for environmental damage, and the prohibition to use nuclear weapons and other weapons of mass destruction; (ii) principles of emerging IEL, which comprise intergenerational equity, the right to a healthy environment, procedural duties (e.g., access to judicial proceedings, environmental impact assessment, monitoring compliance), the duty not to use the environment as an instrument of warfare, and the notification and information of other states in the case of imminent disaster or of potential damage; and (iii) potential principles of IEL, which include the integration of environmental considerations into the development process, common-but-differentiated responsibilities, and precaution.

However, as recognized by Lang (1999:171) himself, the above categorization may likely be considered “too conservative and too narrow.” In fact, it can be argued that the texts used by Lang for his three-pronged cataloguing are not representative of the whole gamut of IEL principles, and thus, the list of principles to be catalogued is inadequate and unrepresentative. According to Lang (1999:172), the “future legal value” of the IEL principles rests largely on whether they are “corroborated not only in the various preambles of treaties but also fully incorporated in the very body of these conventions,” on whether they inform State practice, and on the opinions of legal experts and NGOs. Using Lang’s prescription, it may be stated that within the decade since Lang’s publication, the “potential” principles have progressed from “potential” status to “emerging” status in view of their incorporation within existing IEAs (e.g., the Climate Change Treaty, the Biodiversity Convention), and their increased recognition by States and NGOs.

Nonetheless, there is a general shroud of uncertainty regarding the definitive status of the principles, with a marked preference for emphasizing the “non-binding” character of the principles. For example, UNEP’s 2006 Training Manual on International Environmental Law refers to the various principles of IEL as emerging principles/concepts, thus eschewing the need to make a determination as to whether these principles are binding in IL. The principles listed include both long-established ones such as sustainable development, common heritage, and responsibility for transboundary harm, as well the newer concepts of intergenerational and intra-generational equity, common-but-differentiated responsibilities, precaution, transparency, public participation, access to information, and benefit sharing regarding natural resources.

In view of the general hesitancy or inability to commit to the definitive status of several of the IEL principles, a determination of how the judiciary has understood, interpreted, and invoked the various principles of IEL can provide some light on the “binding” or “non-binding” character of the relevant principles. The next section looks at international environmental jurisprudence.

International Environmental Jurisprudence

The post–Cold War era has witnessed a “proliferation and reinvigoration of international tribunals” (Kingsbury 1999; Granger 2007:1298), and a “greater density, complexity, and diversity of [the] normative content” of IL (Abi-Saab 1999:925). According to Romano (1999), this growth in judicial bodies can be explained by the expansion of IL into heretofore state-restricted domains or vacua legis, the end of the bipolarism associated with the now defunct Cold War, the “repudiation of Marxist-Leninist interpretations of International Law and Relations” (733), the growth in the number of regional economic integration agreements, and the grant of standing to non-state actors such as international organizations, individuals and national courts.

Within the domain of the environment, the current body of environmental courts and tribunals includes both international and national settings. The international fora include (i) the various tribunals set up under relevant IEAs (e.g., the Law of the Sea (LOS) Tribunal, set up under the LOS Convention; the OSPAR Tribunal established under the OSPAR Convention (Convention for the Protection of the Marine Environment on the North-East Atlantic, September 22, 1992); the ICJ (especially; through its Environmental Chamber); the North American Free Trade Agreement (NAFTA) Tribunal (through the North American Agreement on Environmental Cooperation); as well as (ii) the various non-environmental tribunals which contribute to environmental case law through their considerations of environmental cases – e.g., the European Court of Justice (ECJ), which has been considered to be “pre-eminent as an international tribunal in dealing with legal aspects of environmental protection” (Sands 1996:28); the panels of the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO); the Inspection Panel of the World Bank; and the several human rights courts, inter alia (Sands 1996:28; Robb 2001).

Within the national arena, the system of environmental tribunals and courts has evolved in different fashions in different areas of the world. According to Kaniaru (2007), in Scandinavia, there are regional Environmental Courts and an Environmental Supreme Court, while in Australia, environmental courts exist in several states, with one of the most recognized being the Land and Environment Court of New South Wales. Environmental courts have also been established in several developing countries such as India, Pakistan, Mauritius, Kenya, and Tanzania. Due to the “unique legal traditions and circumstances of different countries and jurisdictions” (Wells, 1996), different courts have developed different “attributes peculiar to their circumstances” (Kaniaru 2007:459). In fact, different tribunals have different “character,” which is taken to be a function of the tribunals’ “constitutive document […], the composition, functional capacity, scope of authority, accessibility by stakeholders, procedural flexibility, and transparency of process” (Kwiatkowska 2003:1303).

The recent explosion in environmental tribunals and the attendant growth in environmental cases has occasioned their compilation in the five volumes of the International Environmental Law Reports (IELR), and the several volumes of UNEP’s Compendium of Judicial Decisions on Matters Related to the Environment. The cases in the five IELR volumes span the period from the 1880s to early 2000s, and deal with issues such as trade and the environment; human rights and the environment; the decisions of national courts on themes pertaining to precaution, the polluter-pays principle, intergenerational equity, and sustainable development; and the decisions of the ICJ. UNEP’s Compendia include decisions pertaining to aspects such as locus standi, EIA, the precautionary principle, the polluter-pays principle/liability for environmental damage, the rights of communities to local resource utilization, animal protection, police power and compulsory acquisition in environmental management, and the place of culture in environmental management. Cases are from countries such as the USA, South Africa, Kenya, the Philippines, Bangladesh, Malaysia, Pakistan, Australia, India, New Zealand, Tanzania, inter alia.

Numerous studies have been conducted on the implications of the growth and diversity of the courts and tribunals. On the positive side, the increase in the number of tribunals and courts is considered to promote “creativity and iterative development of the law through dialogue among tribunals” (Kingsbury 1999:681), and to provide a diverse and flexible means of peaceful settlement of disputes (Kwiatkowska 2003:385). From the perspective of democratic theory, the increase in the number of tribunals is considered to promote democratic ideals. In his examination of four disputes in Latin America (viz. maritime border between Honduras and Nicaragua; fisheries off the coast of Chile; oil exploration in Ecuador; and proposed pulp mills in Uruguay along the Argentinian border), Granger (2007:1299) notes that having cases heard by numerous tribunals helps to promote transparency, enhanced participation from various stakeholders, including non-state actors, and thus general democracy (Granger 2007:1299, 1324, 1334–5).

Within the domain of customary IEL, the growth in the environmental tribunals and the associated growth in environmental case law are considered to be catalyzing the development of basic principles of IEL and the establishment of customary IEL (Sands 2007:66). Further, the environmental tribunals are considered to be an easy and cheap means of dispute resolution; to be effective in relieving the ordinary courts of backlog (Kaniaru 2007:460); and to reduce the rigidity and increase the flexibility in the adjudication of environmental cases (p. 461).

As mentioned in the previous section, analysis of previous judicial decisions can assist in determining the status of important environmental principles. Famous early cases such as the 1957 Lake Lanoux Case, the 1941 Trail Smelter Case, the 1893 Bering Sea Fur-Seals Case, and the 1910 North Atlantic Fisheries Case have established important principles governing international environmental protection, viz. the principle that a state does not have the right to use its territory to cause injury to other states; the concept of damage and compensation; the principle of common heritage; and the concept of responsibility and liability.

However, resorting to judicial decision-making may not necessarily resolve the “identity crisis” of some of the principles. This is because invocation of the principles in courts depends not only on the specific court’s inclination to entertain, give expression to and summon the principles, but also on the way that the principles are interpreted by the various judicial bodies. One such example would be the precautionary principle, which in 1999 was considered by Lang (1999) to be a “potential” principle of IEL, whereas in 1996 already, in the case of Vellore Citizens Welfare Forum v. Union of India, the Indian Court had recognized the principle as being an “essential feature” of sustainable development, and thus as being part of customary IEL.

On the other hand, a look at the judgment in the 1994 case of Jeffrey Nicholls v. Director General National Parks and Wildlife Service shows that the Land and Environment Court of New South Wales in Australia considered that while the precautionary principle might be “framed appropriately for the purpose of a political aspiration,” it nevertheless could lead to “interminable forensic argument,” and in practice it amounted to being an “unworkable” principle (case accessed from the Environmental Law Alliance site at www.elaw.org/). Similarly, in the 1998 Beef Hormones case, the Appellate Body of the World Trade Organization (WTO) indicated that the precautionary principle had not become binding for the WTO since it was not clear that “it had become a part of general customary law,” even though it might have “crystallized into a general principle of customary environmental law” (ILC 2006:34, 73). Sands’ (1999a) discussion of the concept of sustainable development highlights the same differential interpretation and readings of the concept by the ICJ and the WTO Appellate Body in the cases of 1997 Gabcikovo-Nagymaros (Hungary v. Slovakia) and the 1998 United States – Import Prohibition of Certain Shrimp and Shrimp Products (United States v. India, Malaysia, Pakistan, Thailand), respectively.

The above exemplifies how different courts and tribunals may submit varying interpretations of the legal status of the various principles of IEL, giving rise to “incompatible rulings by multiple forums” (Granger 2007:1346), thereby establishing a “state of normative anarchy” (Sands 1999a quoting Judge Weeramantry). Other problems that have been associated with the increase in the number of courts and tribunals relate to issues of fragmentation, overlapping and conflicting jurisdiction, coordination problems, a general erosion of international law, and of “forum shopping,” where the “rights and obligations of legal subjects may depend on which body is seized to recognize them” (e.g., Dupuy 1999; Kingsbury 1999; Petersmann 1999:797; Treves 1999; ILC 2006:2, 247).

In an attempt to provide a single interface for the various courts and tribunals, New York University’s (NYU) Center on International Cooperation and the Foundation for International Environmental Law and Development (FIELD) in London partnered in 1997 to implement the Project on International Courts and Tribunals (PICT). However, environmental tribunals do not figure prominently in the PICT project. The Synoptic Chart on the international judiciary provided by the PICT (also discussed in Romano 1999), for example, makes mention merely of the following: the LOS Tribunal, the proposed International Court for the Environment (discussed below), and the implementation bodies set up under the IEAs. There is no reference to the increasing number of other tribunals established under the different IEAs (e.g., the OSPAR Tribunal and the Southern Bluefin Tuna Tribunal established under the 1982 LOS Convention). A more appropriate locus of information on the emerging body of international environmental judiciary would thus be UNEP’s Division of Environmental Law and Conventions (DELC). The DELC is focused on various aspects of compliance and enforcement of IEAs, and also provides information on national environmental courts – e.g., the environmental courts in Sudan, Australia, Trinidad and Tobago, and Guyana, inter alia.

Given the fact that various courts’ and tribunals’ decision-making is characteristically non-uniform and case-specific, many of the environmental principles will likely remain within the realm of “non-binding” status in the foreseeable future, unless they are codified within the legal instruments of IEL. Indeed, there have been proposals for the codification of fundamental environmental norms within a single comprehensive treaty to consolidate many of the environmental norms (UNEP, 2006). Though such an endeavor, if successful, will likely bring the principles from “general nonbinding” status to “binding” principles, it is not clear, however, that consensus will be easily achieved on many of the principles.

There have also been proposals for the establishment of an International Environmental Court to, inter alia, provide a forum open to non-state actors, to establish the corpus of IEL, to enhance compliance with IEAs, and to address the conflicting environmental decisions made by the various institutions (Vespa 2003:295). Such a proposal has however met with criticisms pertaining, inter alia, to the difficulty of circumscribing an environmental dispute solely within the domain of the “environmental,” and the possibility of such a Court “exacerbat[ing] the multiplication of international fora” (Sands 1999b:1636–41; Vespa 2003:303). Given the unlikely nature of having such an International Environmental Court in the near future, and upon the recommendation of Member States, the Permanent Court of Arbitration adopted in July 2001 the Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment (Vespa 2003:304–9).

In view of the growing number of IEAs being negotiated, and especially in the wake of the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus, Denmark), the future will likely see a growing number of access points for environmental dispute resolution. For effective implementation of IEL, it is therefore important to understand the dynamics of IEA formation, the legal characteristics and implementation of IEAs, as well as factors influencing participation in them. IEAs are indeed the major instrument of IEL, and the next sections focus on IEAs.

International Environmental Agreements (IEAs)

That the “treaty” should be used as the instrument for laying down the principles of international laws binding upon states was established by the 1815 Congress of Vienna (Agrawala 1972). Subsequently, in 1949, the newly formed International Law Commission (ILC) of the United Nations (UN) requested 59 states to give consideration to the issue of the law of treaties. After 17 reports and 292 meetings on the subject, the Vienna Convention on the Law of Treaties (VCLT) was adopted by the Vienna Conference on May 23, 1969 (Villiger 1985). Article 2, para. 1(a) of the VCLT defines a treaty as:

an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

The same definition holds for an IEA. The only difference between an IEA and other international treaties lies in the subject matter; otherwise, an IEA, very much like any other treaty, is an agreement which is “governed by international law.” There are many terms which have come up to denote a treaty. In the jargon of international law, we commonly use such terms as convention, protocol, accord, covenant, pact, agreement, charter, statutes or regime to denote a treaty.

Legal Characteristics of IEAs

According to the principles of IL, states have to willingly enter into IEAs. There is no supranational authority to exert compellence. However, once an IEA has been adopted by the international community, the IEA is governed by the articles of the VCLT, which bestows certain legal characteristics upon IEAs. Some of these characteristics include the following: (i) IEAs can be made by every independent state (Article 6); (ii) IEAs must be honored by the states entering into them (Article 26); (iii) IEA enforcement is not subject to the internal laws of the parties (Article 27); (iv) an IEA is non-retroactive (Article 28); (v) an IEA does not create either rights or obligations for a third State (Articles 34–7); (vi) an IEA can be amended by agreement between the parties (Article 39); (vii) an IEA may be declared invalid in case of error, fraud, corruption, coercion, use of force, or conflict with Jus Cogens (Articles 48–53); and (viii) a material breach of an IEA by one of the parties entitles the other parties to suspend the operation of the treaty in whole or in part or to terminate it (Article 60).

Classification of IEAs

An IEA can be classified in three main ways: (i) according to the geographical scope of the nature of the environmental problem/issue; (ii) according to the membership criteria of the agreement; or (iii) according to the main objectives of the agreement.

Geographical Scope of the Issue Area

Based upon the geographical scope of the environmental problem, an environmental agreement can fall into three main categories: bilateral, regional, or global. The issue area of a bilateral agreement normally affects only two states – understandably, the two states which conclude the agreement. An example of a bilateral agreement is the US–Mexico Treaty Relating to the Utilization of Waters of the Colorado and Tijuana Rivers of the Rio Grande (Feb. 3, 1944).

A regional agreement deals with an environmental problem restricted to a particular region of the world and it is normally concluded among more than two states which are located in that same geographic region. Examples of a regional agreement are the International Convention for the High Seas Fisheries of the North Pacific Ocean (1952), and the Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki, March 22, 1974). A global agreement is one which deals with an environmental issue which affects, or has the potential to affect, the whole globe. For example, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973) (CITES) aims at controlling the global trade in threatened and endangered species. Another example would include the Climate Change Convention.

Based on the IEAs listed in the 1993 UNEP Register of International Treaties and Other Agreements in the Field of the Environment, the proportion of global and regional agreements concluded from the 1930s to around 1995 is 31 percent and 69 percent respectively. Among the various regions, Europe stands out as the area with the maximum number of regional IEAs (47 percent). The other regions’ share is Africa: 14 percent; America: 8 percent; Asia: 7 percent; Atlantic: 11 percent; and the Pacific: 13 percent.

Membership Criteria

IEAs can be classified as either open or limited agreements, depending upon whether membership is open to any state of the world or restricted to specific countries, respectively. The membership criteria are normally stipulated within the text of the agreement. The Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (Moscow, 1963) and the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (1971) are examples of open agreements because they are open to all States and any country can adopt them. On the other hand, the Convention Concerning the Protection of Workers Against Occupational Hazards in the Working Environment Due to Air Pollution, Noise and Vibration (1977) is a limited agreement because Article 18 (1) of the Convention restricts membership to members of the International Labour Organization (ILO). Some regional treaties do have open membership – e.g., the Phyto-Sanitary Convention for Africa South of the Sahara (London, 1954). Though this agreement deals with one specific area of the world, it allows the whole international community to take part in it.

Main Objectives of the Agreements

Different IEAs treat different issue areas, and IEAs can be broadly classified under various categories, depending upon their main objectives. Based on the listing of IEAs provided in the 1993 UNEP Register, the share of various issue areas is as shown in Figure 1. Marine pollution has commanded the greatest concern of the international community, accounting for more than a quarter of all IEAs.

Anatomy of an IEA

In general, the structure of an IEA can be broken down into the following main sections: (a) a preamble, stating the general concern of the Parties; (b) the definition of terms used in the convention; (c) articles on the main objectives; (d) the main body (institutions to be set up – e.g., Secretariats, Council, Commission, Committee; legislative requirements to give effect to the IEA or to specific articles of the IEA; reporting requirements; monitoring procedures; scientific or technological collaboration; special financial mechanism or financial assistance; research incentives; specific measures to be adopted; and sovereignty concerns); (e) dispute settlement; (f) amendments; (g) entry into force; and (h) reservations/denunciation.

Evolution of IEAs

Over the years, IEAs have not simply increased in number, but have also undergone an evolution in their structural design. In the early 1930s, IEAs tended to be simple in terms of their requirements, vague in terms of their objectives, and utilitarian in their ethos for protecting the environment. With time, however, as environmental sciences evolved to incorporate new principles and concepts, the structure of IEAs has followed in tandem to incorporate the new understandings and the new concerns.

Specifically, IEAs have evolved to recognize new ecological principles, the intrinsic value of natural resources, market mechanisms (such as emissions trading), and the need to provide participation incentives. The most recent IEAs now commonly include provisions for promoting the participation of developing countries, based on the recognition that developing countries cannot, or are reluctant to commit financial resources to protect the environment at the expense of economic development (GAO 1992). The Montreal Protocol, for example, allows developing countries a moratorium of ten years to comply with control measures and implement the quantitative targets. Both the Climate Change Convention and the Biodiversity Convention contain special provisions for financial assistance, technological transfer, technical support, and scientific collaboration. The Kyoto Protocol includes flexible market mechanisms such as emissions trading, the Clean Development Mechanism and Joint Implementation.

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Figure 1 Share of various categories of IEAs

In view of the increasing role and importance of NGOs in the process of international environmental negotiations and environmental treaty-making (Arend 1990; Laws 1990; Benedick 1991; Lindborg 1992; Grubb et al. 1993; McMahon 1993; Feld et al. 1994), recent IEAs now include provisions for granting observer status to NGOs – e.g., the Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 1979) – Article VII (8, 9); the Climate Change Convention – Article 7 (6); and the Convention on Biological Diversity – Article 23 (5). As observers, NGOs can submit documents, can address various sessions of the convention, and can attend sessions as non-voting participants (Lindborg 1992).

Self-reporting by parties has been found to be the preferred choice to increase the transparency and effectiveness of regimes (Young 1992; Chayes and Chayes 1995). Reporting requirements are present, inter alia, in the Convention on Long-Range Transboundary Air Pollution (Geneva, 1979) (LRTAP, Article 8), the Basel Convention, the CITES (Articles VIII and XII), the Climate Change Convention (Article 12), and the Biodiversity Convention (Article 26).

Many IEAs make use of supplementary agreements to make more detailed, and often more binding, the requirements of specific articles of the parent IEAs. In many cases, the supplementary agreements take the form of protocols (often called the framework-protocol approach). The 1987 Montreal Protocol was elaborated under the framework of the Vienna Convention for the Protection of the Ozone Layer (Vienna, 1985). Likewise, eight protocols have been negotiated under the LRTAP Convention. Both the Kyoto Protocol and the Biosafety Protocol have been negotiated under the aegis of the Climate Change Convention and the Biodiversity Convention respectively.

The framework-protocol approach model is considered effective for designing IEAs because it breaks down complex negotiations into simpler issues which are more amenable to successful negotiations (Granda 1990). The comprehensiveness of the LOS Convention, for example, has been blamed for the lengthy negotiation period of twenty years before adoption of the final text (Sand 1991; Harvard Law Review 1992:53). Moreover, with the framework-protocol approach, the main convention tends to be more broad and general, which is more conducive for enlisting wider participation. Ongoing dialogue after the main convention has been negotiated can thereafter lead to other agreements which strengthen the main convention (Sand 1991; Rojas and Thomas 1992). According to Sand (1991), the ongoing dialogue after the adoption of the LRTAP Convention allowed the 30 percent reduction of sulfur emissions to be widely accepted by the Contracting Parties.

However, the framework-protocol approach may also bring an element of “indeterminacy” whereby states agree only on broad policy guidelines and leave out the details for later negotiations (Handl 1991). Article 12 of the Basel Convention, for example, leaves key definitions such as “environmentally sound management of wastes” and “liability” to be worked out after the entry into force of the Convention (Handl 1991). However, there is always the risk that negotiations may not proceed quickly enough after the framework convention is signed and no measures be adopted for solving the problem (Gundling 1991; Sand 1991). Further, there is no guarantee that all Contracting Parties will ratify the protocol(s).

It is perhaps an inescapable problematique that many IEAs often regulate the same environmental parameters. This is especially true for those IEAs dealing with the protection of fauna and flora, or marine water protection. For example, the importation and exportation of protected fauna are regulated under both CITES (Articles III–V) and the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (Article IX). Bird protection is ensured under both CITES and the International Convention for the Protection of Birds. Likewise, the dumping of organohalogen compounds, mercury, cadmium and their compounds, inter alia, is prohibited both under the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London, 1972) and the Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (Oslo, 1972). Hence, if a state is party to one specific treaty but not to another which is closely related, the success of implementation strategies may not be fully realized.

In some instances, the effective implementation of one specific treaty is contingent upon the implementation mechanisms set out in other closely related treaties. For example, successful implementation of the African–Eurasian Migratory Waterbird Agreement (AEWA) is dependent on the protection of wetlands and the safeguarding of biodiversity in these habitats (UNEP/CMS Secretariat, March 24, 1997). Hence, domestic implementation of the terms of AEWA is also dependent on the implementation of the clauses of both the Ramsar Convention and the Convention on Biological Diversity (CBD), which deal, inter alia, with the protection of wetlands and the protection of biodiversity respectively.

In increasing recognition of these interconnections among various IEAs, it is a common feature nowadays to witness treaty bodies endeavoring to link and coordinate their strategies in an attempt to better resolve the relevant environmental problems. For example, a 1996 report of the Helsinki Commission (HELCOM) established the Baltic Sea Area (delineated under Article 1 of the Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki, 1992)) as a Special Area under Annex I of the International Convention for the Prevention of Pollution from Ships (also known as MARPOL 73/78). In the same fashion, during the twelfth session of the Global Biodiversity Forum, held during the 1998 meeting of the Conference of Parties (COP) to the United Nations Convention to Combat Desertification (CCD), discussions pertained specifically to the synergies between the CCD and the treaties relating to biodiversity protection (WRI 1998). Linkages have also been established between climate change, biodiversity and desertification (Dharmaji and Pisupati, 2005:4–5).

Nonetheless, it is likely that the operation of IEAs will continue to be associated with the legal repercussions of the “doctrine of treaty parallelism,” which, according to the ILC, arise both in the substantive content of treaties and in their means of dispute resolution (also Kwiatkowska 2003:376; ILC 2006:21). Illustrative cases are the Southern Bluefin Tuna Case (Australia and New Zealand v. Japan) and the MOX Plant Case (Ireland v. United Kingdom). The Southern Bluefin Tuna Case involved both the 1982 LOS Convention and the 1993 Convention on the Conservation of the Southern Bluefin Tuna, while the MOX Plant Case had three different institutional settings: an Arbitral Tribunal set up under Annex VII of the LOS Convention; the OSPAR Tribunal; and the dispute settlement procedure under the European Community and Euratom Treaties within the ECJ (ILC 2006:12).

Issues of IEA Formation, Compliance and Effectiveness, and Participation

IEA Formation

The formation of environmental regimes has been informed by research conducted within the framework of (i) interdependence and global governance (Keohane 1984, 1989; Diehl 1997; Young 1997); (ii) game theory (Downs and Rocke 1995; Downs 1998; Finus 2001); (iii) interest-based analyses (e.g., Young 1993; Sprinz and Vaahtoranta 1994); and (iv) the influence of epistemic communities (Haas 1990, 1992; Young 1993; Wilkening et al. 2000).

Numerous researchers have argued that scientific consensus and the involvement of effective epistemic communities tend to strengthen international commitments to relevant IEAs by sharpening agenda-setting and by the clear articulation of desired goals and objectives (Krasner 1982:510; Haas 1989:398; Kolk 1996:31; Weale and Williams 1998:85). The theory of epistemic communities has been used to explain the formation of the Mediterranean pollution control regime (Haas 1989, 1990, 1993), the Montreal Protocol (Granda 1990; Haas 1992), and the Climate Change Convention (Bodansky 1994), among others.

IEAs being a product of international negotiations, various negotiating strategies have been recommended to secure wide participation in the IEAs (e.g., Mautner-Markhof 1989; Arend 1990; Laws 1990; Barrett 1992; Dupont 1994; Susskind 1994; Carraro 1997; Botteon and Carraro 1998; Underdal 1998; Tussie 2000; Chasek 2001). The negotiations process has been broken down into various phases – a process often referred to as phased process analysis (Chasek 2001:35). While many phases have been postulated in the literature (for a summary, see Chasek 2001:38–49), a simple one is that provided by Porter and Brown (1991), who consider that the development of multilateral negotiations involves the following four processes: issue-definition, fact-finding, bargaining, and regime strengthening. Porter and Brown (1991) have further categorized negotiating states into four groups, depending on their stance and moves during international negotiations.

The qualities and level of expertise of international negotiators have also been deemed important in determining whether negotiations proceed smoothly or get mired by deadlocks and preventable delays (e.g., Citron 1989; Grunert 1989; Lundstedt 1989). The influence of other themes such as issue area characteristics, the North–South conflict and sovereignty concerns on the formation of environmental regimes has also been studied (e.g., Elian 1979; Andresen and Ostreng 1989; Boehmer-Christiansen 1989; Young 1989; Corrales and Dreyfus 1990; Granda 1990; Doos 1991; Handl 1991; Porter and Brown 1991; Najam 1993; Bodansky 1994; Borione and Ripert 1994; Dasgupta and Maler 1995; Nitze 1994; Susskind 1994; Chayes and Chayes 1995; Nayar and Ong 1996).

Compliance and Effectiveness

The literature makes clear distinctions between compliance and effectiveness (e.g., Mitchell 1994; Chayes et al. 1998; Jacobson and Weiss 1998:5). Put simply, compliance deals with whether a state party is within the legal bounds of the obligations of a treaty. Compliance with the legal stipulations of a treaty, however, does not necessarily lead to effectiveness. This is partly because the objectives of IEAs tend to be very broad, vague and general – an inevitable outcome of international environmental negotiations, as these are predominantly typified by compromises and ambiguity in the wording of the texts.

Thus, phrases such as “as appropriate and necessary” (e.g., Article 4 of the 1979 Convention on the Conservation of European Wildlife and Natural Habitats) permit Parties to be in compliance with IEL, even though the basic aims and objectives of the IEAs may not be served. Moreover, the permissibility of taking reservations to specific clauses of IEAs effectively weakens the IEAs, causing them to fall into Donnelly’s typology of “international standards with self-selected national exemptions” rather than “authoritative international norms” (Donnelly 1986:603).

Though countries participate widely in IEAs, there is a general perception that many of the environmental problems giving rise to the treaties remain unresolved or, if addressed, then to an unsatisfactory level (e.g., Congleton 2001:252, 259–60). It is commonly stated that few IEAs have succeeded in significantly reducing pollution (Susskind and Ozawa 1992), or in adequately protecting natural habitats and wildlife (e.g., Caldwell 1988). This “effectiveness deficit” (Kutting 2000:65 #633) has been attributed to ambiguity in the wording of IEAs, lack of clear stipulation of goals, lack of timelines for implementation strategies, absence of quantitative targets, and difficulties associated with treaty implementation and enforcement, and the transformation of IEAs within domestic legislation (e.g., Hurrell and Kingsbury 1992:22; Sand 1992a; Balistrieri 1996:36–8; Rest 1999; Kutting 2000:65).

A review of the literature shows that various definitions and assessment methodologies have been provided for the term “effectiveness,” supporting Young’s statement of it being an “elusive concept” (Young and Levy 1999:3). While Peterson (1997:115) has provided a simple dichotomy between “compliance effectiveness” and “result effectiveness,” others have provided a multilayered focus on effectiveness. Vogler (1995), for example, has considered effectiveness from four different angles, while Young and Levy (1999:3) have provided five distinct approaches for analyzing effectiveness.

Among the various competing approaches mentioned above, the international relations literature has shown a strong predilection for the behavioral modification perspective. Indeed, it seems that the “object of the agreement is to affect state behavior” (Chayes and Chayes 1993), and most of the analyses conducted on effectiveness have been done within the framework of regime theory, whereby effectiveness is linked to the behavior modification potential of the regimes (e.g., Andresen and Ostreng 1989; Chayes and Chayes 1993; Levy 1993; Levy and Young 1994; Mitchell 1994; Vogler 1995; Greene 1996; Young and Levy 1999; Wettestad 2001). The research project on the Implementation and Effectiveness of International Environmental Commitments, launched by the International Institute for Applied Systems Analysis (IIASA) in 1994, was guided by the same behavior modification perspective (Victor et al. 1994:3, 1998).

However, despite the numerous studies conducted in the field of environmental regime effectiveness (e.g., GAO 1992; Sand 1992a; Mitchell 1994; Churchill 1996), it is not yet clear to what extent the IEAs have been successful in improving global environmental conditions. Recently, there have been a handful of scholars who have attempted to analyze the concept of regime effectiveness from a perspective other than that of behavior modification (e.g., Kaczorowska 1995; Helm 2000; Kutting 2000). Kaczorowska (1995) submits to an impact-related perspective on effectiveness, analyzing the effectiveness of trade conventions by determining whether they “produce the desired effect.” Helm and Sprinz (2000) have attempted to directly use the problem-solving approach to determine IEA effectiveness, relying on the construction of an effectiveness score based on a “no-regime counterfactual” and a “collective optimum.” However, Helm and Sprinz’s methodology is limited by its exclusive focus on emissions-based IEAs. The method developed cannot be used for the many other IEAs which are directed toward the protection of natural habitats, the conservation and preservation of plant and animal species, or the safeguard of biodiversity.

Kutting (2000) has strongly criticized the popular concept of “institutional effectiveness,” (e.g., Young 1992; Haas et al. 1993; Levy 1993), considering it to be an “artificial” measure (Kutting 2000:134). Kutting instead proposes the term “environmental effectiveness” to “establish the linkage between society and nature” (Kutting 2000:8) and to suggest that analysis of the effectiveness of IEAs needs to consider the environmental impact of IEA implementation. Concern with environmental improvements is also reflected in Seelarbokus’s (2005a) notion of “effectiveness as environmental modification,” and the subsequent focus on an assessment of the trends of treaty-based environmental indicators.

Participation

Increasing participation in treaties concluded by the international community has always been deemed “desirable” (ILC 1963; Maffei et al. 1996, Agenda 21, Section 39). From an IL perspective, a high level of participation is important since it increases the probability that the specific treaties may “take on the stature of customary law” (Vig 1999:25) or may “generate customary international law upon coming into force” (Carr and Scott 1999:314).

Research into the field of participation in IEAs has been conducted mostly from the econometrics literature. Economic analyses have estimated the likelihood that countries would sign and implement IEAs, the types of countries that are most likely to sign the treaties, and the kinds of treaties that are most likely to be signed (e.g., Congleton 1992; Murdoch et al. 1997; Congleton 2001). Researchers within the econometrics field have also typically focused on the optimal size for an IEA, the cost-effectiveness of IEAs, and the design of instrument choices to attract high participation, often commonly referred to in the literature as the “incentive compatibility” of IEAs for enhanced cooperation (e.g., Downs 1998; Carraro 1999a; Helm and Sprinz 2000; Schmidt 2000:4).

The design of IEAs is seen as a “crucial” determinant of participation in IEAs, as well as a significant factor influencing the “stability and global efficiency” of the environmental coalition (Sand 1992b; Helm 2000:164; Schmidt 2000; Helm and Sprinz 2000; Finus 2001:236, 238). Several researchers have argued that the stricter the requirements of an IEA, the less likely it is that countries will participate in the IEA (e.g., see Schmidt 2001:214), and free-riding incentives will prevail (Finus 2001:279). Carraro (1999b:9), for example, notes that those treaties which are “rather empty in terms of quantitative targets and/or deadlines” tend to enlist greater participation than those with precise commitments. Likewise, Finus (2001:314) considers that more countries sign IEAs which are meant to “achieve little.” Barrett (2000:119) considers that the Climate Change Convention benefited from earlier ratification and entry into force than the Kyoto Protocol because it did not require any “particular target by any particular date.”

The minimum ratification clause, or threshold number, has been considered as an “internal stabilization” instrument, making participation “contingent” on the participation of others (Schmidt 2001:220). Black et al. (1993) report that the threshold number helps to increase participation in IEAs while deterring free-riding (also Barrett 2000:137; Carraro et al. 2003). In this sense, the threshold number is seen as being important in making cooperation more profitable (e.g., Black et al. 1993) and more stable by decreasing the number of free-riders and increasing the number of signatories (Carraro et al. 2003).

From outside the economics domain, researchers have tried to empirically link states’ varying levels of participation in IEAs to their domestic characteristics such as their levels of democratic governance, trade openness, economic parameters, pollutant emissions, demographics, or land area, inter alia (e.g., Dietz and Kalof 1992; Frank 1999; Fredriksson and Gaston 2000; Dolsak 2001; Neumayer 2002a, 2002b; Recchia 2002). Roberts et al. (2004) have relied on the perspective of world-systems theory to analyze the participation of 192 nations in 22 treaties. Using the premise of realist and liberalist theories on international cooperation, especially those strands which emphasize the national–international linkages, Seelarbokus (2005b) has studied the influence of domestic variables (e.g., economic development, corruption, the environmental resource base, environmental vulnerability, participation in intergovernmental organizations, the strength of governmental institutions, military expenditures, level of human development, inter alia) on participation in 110 global IEAs. Results of the research have empirically demonstrated that state participation in IEAs is influenced by the following four main factors: (i) the impact of domestic and international institutions (e.g., presence of strong governmental institutions; participation in international environmental organizations); (ii) human development (e.g., quality-of-life parameters such as infant mortality, level of malnutrition, economic development, literacy rates); (iii) power motivations (e.g., military expenditures; environmental vulnerability; natural resource base); and (iv) IEA design (e.g., presence of clauses allowing for financial or technological transfers; flexibility mechanisms; dispute settlement mechanisms).

Future Directions for IEL

Since it is likely that IEAs will remain as the “centerpiece of international efforts to deal with global environmental problems” (Hurrell and Kingsbury 1992), mechanisms for their formation, effective implementation, and for securing wide participation will prevail as future research agendas. So far, the themes of IEA formation, participation, compliance and enforcement, and effectiveness have remained dissociated from each other, with each field focusing on its own agenda, without any interdisciplinary sharing of knowledge. Yet, themes such as participation and effectiveness are intricately linked, with participation acting as a determinant of effectiveness. What is missing from the current research template therefore is a holistic understanding of the theme of IEL. IEL should not be taken to connote solely the legal aspects of the field – it should also include understandings related to the formation of the international environmental legal instruments (viz. the IEAs), their domestic transformation and implementation, measures for enlisting global participation, and determinants of the effectiveness of the legal instruments. The various research fields (such as econometrics, environmental sciences, international relations, and international law) need therefore to be integrated to provide a complete framework of all the key contextual factors influencing effective implementation of IEL.

Overall, there is great scope for further research into the field of international environmental jurisprudence. The field is very young still and there are many issues which need to be further studied. There is no doubt that the various handbooks on IEL (e.g., Bodansky et al. 2007), various compendia on the national and international decisions on IEL cases, and the periodic reviews of IEL (e.g., the Montevideo Programme of UNEP) are extremely useful for the analysis of trends in IEL and for establishing the legal status of the principles of IEL. However, mere summarizing, compilation, and case-by-case analysis are not sufficient for an overall assessment of the field of IEL.

Research into the field needs to go one step further: there needs to be a critical assessment of the overall interpretation and application of the norms and principles to determine how the law has developed, evolved, and crystallized. And to be able to achieve this, both national and international court decisions will have to be studied in detail to parse out the following: a full listing of the IEL principles that were cited/invoked by the judicial bodies, and the status that was accorded to them; the number of times that each principle has been invoked by the various courts/tribunals; an analysis of the temporal variation in judicial invocation and interpretation/application of the principles and norms, inter alia. This type of matrix will provide information not only on the frequency and density of the principles/norms, but it will also enlighten on State practice with regard to IEL, thus aiding in our understanding of the evolution of customary IEL. The importance of studying how national courts interpret and apply environmental laws and principles cannot be overemphasized; apart from the implication for the development of customary IEL, national courts are also often at the forefront of early application of new and evolving principles of IEL. For example, the Supreme Court of the Philippines granted standing to 42 children as representatives of themselves and future generations to protect their right to a healthy environment (Weiss 1999:351).

For further development of IEL, there has to be a point in time when jurists and courts/tribunals will be willing to refer to and invoke recent environmental cases that have been considered in the light of new rules and principles of IEL, rather than to the age-old and oft-cited ones such as Lake Lanoux and Trail Smelter. For this, there has to be not only a good compilation and analysis of the various cases, as mentioned above, but also a modern and competent judiciary willing to entertain and consider new shifts in values and new principles of IEL. In one sense, the greatest obstacle to progress in fulfilling the telos of the “public good” is genuine lack of awareness. Thus, education and training of the judiciary will be key for the progressive advancement of IEL, a fact which has been recognized by various circles (e.g., Sands, quoted from McDorman 2004:337), and which has also occasioned training manuals such as the Judicial Handbook on Environmental Law (UNEP 2005).

Future directions for research in IEL will also likely involve further investigation into the field of environmental security (for more information on the concept see Birnie 1988; Bjorkbom 1988; Von Moltke 1988; Homer-Dixon 1991; Barnett 2001:12; Harris 2001:227; Conca and Dabelko 2002; Manwaring 2002) and environmental protection in times of war. Researchers working in the field of human rights protection have long recognized the close relationship between the state of the environment and personal wellbeing or welfare (Bretschger and Egli 2001:187). The right to a clean environment is now widely acknowledged as falling among the “third generation of rights” (Hertel 1994:2; Felice 1996:31), or “subsistence rights” (Donnelly 1986:607). Thus, further research in the development in IEL will likely be directed toward the notion of environmental justice, the rights of indigenous peoples, and the evolution of the norms of intergenerational and intra-generational equity. Without fail, principles such as sustainable development, common-but-differentiated responsibilities, the precautionary principle, and prior informed consent will continue to elicit interest on the part of relevant stakeholders. In fact, some researchers are already talking about an International Sustainable Development Law (Atapattu 2007).

IEL will also evolve in furtherance of greater citizen involvement in the judicial process. Various NGOs are working toward the democratization of international dispute settlement. For example, the Center for International Environmental Law (CIEL) has a special project to increase public participation and the public’s right to know, and it has also successfully enabled the webcasting of hearings. CIEL has also submitted amicus curiae briefs in the 2007 Suez/Vivendi Case, and this will likely be a more prominent feature in the future. Writing mostly in the context of investment–environment disputes, Tienhaara (2007:242) has stated that further research in the field would involve the analysis of the impact of amicus curiae briefs on the outcome of cases and on awareness-raising; and how third-party participation affects the legitimacy of arbitration in the disputes.

Given the fact that IL is a “horizontal” system characterized by a lack of hierarchy (ILC 2006:166), fragmentation will remain an inevitable outcome and an enduring concern. The challenge will be how to reconcile the inherent incompatibilities of different “specialized systems” of IL. As pointed out by the ILC (2006:65), “selfcontained regimes” such as trade law, human rights law, and environmental law each have a different governing “ethos” or objectives. Thus, for coherence in IEL, there will be a need to resolve the dissonance in the way that principles are considered by different regimes (e.g., trade law and environmental law as in the Tuna-Dolphin Cases: ILC 2006). As in any other discipline, once specialized understanding of particular research domains has been mastered, it seems that the next step is to move away from specialization and toward integration. Integration, indeed, is the key word where IEL is concerned. In this context, institutional mechanisms such as UNEP’s DELC can function as an important clearing-house and coordinating framework for the various environmental courts and tribunals.

Last but not least, for a strong, effective and coherent corpus of IEL, policies will need to be devised to integrate international endeavors for global environmental protection with measures to strengthen national judicial bodies, domestic institutions, and general domestic environmental governance. Unless and until human development is strengthened in States of the world, IEL will likely take a place at the back burner.

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