Formality and Informality

This article explores contested terrain in the no-man's land between international law and politics – the work of ‘norms’ in social, including legal, change. International environmental law has served as the crucible for much of the theoretical debate, and a central focus of this debate has been on the effectiveness of various types of formal norms and informal norms. The common core of the concept of ‘norm’ is that the desideratum contained in the norm is intended to influence human behaviour. Since norms operate in many different ways, they relate to the concepts of formality and informality differentially as well. Norms can be formal rules of law, but they can also be informal social guides to proper conduct. More surprisingly, they can be informal and precise as well as informal and vague; formal and precise as well as formal and vague. This article concludes by tying together the theoretical insights traced out earlier in the light of ‘soft law’ discourse in international environmental law.

Compliance Theory

International lawyers and legal scholars often assess the effects of international environmental agreements (IEAs) in terms of the extent to which states comply with their commitments. International relations scholars tend to examine IEA effects through a broader set of questions. They are concerned with any behavioural or environmental changes that can be attributed to an IEA – whether these changes involve compliance or not and regardless of whether these changes were desired, unintended, or even perverse. International relations scholars also focus on the reasons why states change their behaviour and what aspects, if any, of an IEA explain those behavioural changes. To see the difference between these approaches, consider four categories of behaviour: treaty-induced compliance, coincidental compliance, good faith non-compliance, and intentional non-compliance. This article reviews the theoretical terrain and shows that nominally ‘competing’ perspectives have different insights to offer those seeking to improve the practice of international environmental law.

Treaty-Making and Treaty Evolution

This article examines how the establishment and operation of environmental treaty systems helps to create and develop international environmental law. It inquires into the emergence of environmental treaty systems and identifies two characteristics of the evolving law-making structure: first, the ‘constitutionalisation’ of treaty systems through the creation of new structures for the making of international environmental law, and, second, the institutional fragmentation of international environmental governance. The article then considers the policy-making dimension of environmental treaty systems and identifies three areas of intra-institutional activity relevant to the law-making process: broadening and tightening commitments over time; elaborating upon, and in some cases redefining, existing obligations through an administrative process; and undertaking scientific and technical assessments to reinforce and accelerate normative development. It also explores the output of the law-making process, arguing that different types of law emerge. Whereas regular treaty law is still the most important single output of environmental law-making, it is supplemented by law emerging from simplified amendment procedures and secondary decisions of competent treaty bodies.

Compliance Procedures

The Montreal Protocol on Substances That Deplete the Ozone Layer was among the first international agreements in which a specific non-compliance procedure was envisaged, and it is generally held to be the most developed example to date. Non-compliance procedures have become rather prevalent in international environmental law. Allowing for variations across regimes, most mechanisms have at least one compliance committee, usually composed of representatives of a limited number of parties (eight to fifteen) to the underlying multilateral environmental agreement and reporting back to the plenary body set up by that agreement (often dubbed the conference of the parties or meeting of the parties). Compliance (or non-compliance) procedures are usually said to exist, and be necessary, in international environmental protection because the environment cannot, for a number of reasons, be entrusted to the workings of traditional international law.

An Economic Theory of International Environmental Law

International law, of which international environmental law is a part, shapes and constrains state behaviour. Essentially, it tells states what they are permitted to do, what they are prohibited from doing, and what they are required to do. In this respect, international law is indistinguishable from domestic law. In other respects, however, domestic and international law could not be more different. Domestic law develops and is applied within a vertical system of governance, with a legislature that creates law, a judiciary that interprets law, and an executive that enforces law. International law, by contrast, is rooted to a horizontal system – states at once make, interpret, and enforce international law. This article presents an economic theory of international environmental law, showing how international law can restructure incentives, making it in the interest of states to change their behaviour, and so protect the environment. It examines customary law, theory of treaty design, treaty participation, minimum participation, compliance, narrow and deep versus broad and shallow treaties, tipping treaties, trade restrictions, asymmetric countries, and payment compensation.

Equity

If perceptions of fairness or equity affect the level of participation and positive action among heterogeneous states, then they are likely to factor in the long-term success of an environmental regime or agreement. This article assesses the potential impact of equity on international environmental law. First, it examines the various meanings attributed to the term ‘equity’ in international law in general, and in international environmental law in particular; the roles equity has played in multilateral environmental agreements; and how different equitable principles are, or may be, implemented in practice. The article then discusses intra-generational equity and inter-generational equity, sovereign equality and equity, distributive justice in international law, principles for determining equitable allocation, and different ways of implementing principles of equity (substantive rules of equity, procedural rules).

Paradigms and Discourses

Both paradigms and discourses are a type of inter-subjective understanding that condition individual action, and social outcomes, in the international system no less than elsewhere. They have no formal existence resembling that of organisations, constitutions, laws, and treaties. Yet paradigms and discourses can be none the less effective in coordinating the behaviour of large numbers of actors, and this is especially true in a political system as de-centralised as the international one, where formal sources of order are weak. It is impossible to understand international environmental law without getting to grips with the informal understandings that condition its creation and operation. This article explores basic concepts about paradigms and discourse, the transition from industrialism to environmentalism, and major environmental discourses including survivalism and its Promethean opposite, problem-solving discourses, sustainability, and green radicalism.

Atmosphere and Outer Space

What is ‘atmosphere’ and what is ‘outer space’? The term ‘atmosphere’ is sometimes used interchangeably with ‘air’. Moreover, it is often assumed that ‘outer space’ is simply the area above and beyond ‘air space’ (another term often used). While understandings such as these are certainly reasonable for most discussions, the effective development of international environmental law may well demand more precise definitions. This article provides an overview of key atmospheric and outer space environmental challenges that have been – and continue to be – addressed by international environmental law. It examines transboundary air pollution, ozone layer depletion, global climate change, and outer space. For each of these issue areas, the article describes a particular environmental problem (or set of environmental problems). It also reviews key elements of the international legal response (including especially significant agreements), focusing on innovative approaches taken as part of this response. In addition, the article discusses transboundary transport of industrial pollutants as well as major industrial accidents.

Instrument Choice

This article examines the different types of environmental regulatory instruments and their role in international environmental regulation. Environmental regulatory instruments are designed to implement public norms of environmental protection, and redress the limitations of private law, market ordering, and criminal law in securing appropriate behavioural changes on the part of these actors. The article looks at command and control regulation, economic instruments, information-based approaches, and hybrid regulatory approaches. It then focuses on the characteristics and performance of different environmental regulatory instruments, environmental regulatory instrument choice in the domestic context, environmental regulatory instrument choice in the international context, distinctive characteristics of international environmental regulation, international regulatory instruments governing interactions among states, domestic regulatory instruments to implement international environmental agreements, international agreements that do not specify domestic implementing instruments, functional characteristics and performance of different instruments, positive theory regarding instrument choice, environmental governance issues, and the evolution of international environmental law.