Unit 24 Lecture Notes - International Environmental Law

International law is in the view of some an oxymoron. Those that take this view are of the opinion that law cannot exist absent some government and its police existing to enforce it. Those that take this view fail to understand the nature of law. Indeed domestic and international law are little different in theory. It is true that ultimately force is necessary to the existence of law. There will always be some small percentage of the population, not bound by morals or good will, for whom there appears to be advantage in violating society's rules of conduct. And the application of force to these individuals will be required to make the cost of their actions higher than the expected gain therefrom. Nonetheless, force alone is not an adequate basis for the existence of law. Law cannot exist without the consent of those to whom it is applied. Even in the most tyrannical societies some portion of the population must acquiesce in the application of the society's laws or there would be no one through whom force could be exercised. Consent to law is given because of the belief that such law is in the best interest of society, and derivatively a substantial portion of the individuals who make up that society. To give a domestic example of the necessity of consent of the governed to the enforcement of laws consider the application of state laws governing sexual conduct of consenting adults. Even in those states that have such laws (and North Carolina is among those states) consenting adults who violate these laws are rarely prosecuted. The prosecutor who seeks to enforce such laws risks public scorn (and loss of the next election). Thus enforcement of domestic laws requires not only the ability to apply force but, in addition, the agreement of those to whom the laws are applied that such laws are appropriate.

International law in theory and practice is little different than domestic law. Countries and the individuals that make up those countries agree to international law because they believe that such law is in their best interest. Force exists although its application may be slightly more subtle than in the domestic context (after Kosovo it may no longer be true that the threat of force is so subtle; indeed, the international community seems to be increasingly willing to apply force to enforce international law.) Usually, however, the application of force is more subtle. It may consist of a refusal to trade in particular goods (for example, the refusal of some countries to allow the importation of tuna caught in a manner that kills porpoises) or a refusal to admit or extend certain privileges to the citizens of offending countries.

Categories of International Law

International law may be categorized based upon the parties governed. Public international law governs the conduct of nations. A convention to prohibit testing of nuclear weapons is an example of public international law. Private international law governs the conduct of individuals and companies. Laws governing international contracts are an example.

International law may also be categorized based upon the manner by which it was created. Customary international law is the oldest category of international law. It dates to ancient Greek and Roman times, or perhaps even earlier, as it seems to have had a fairly universal existence among all peoples who engaged in trade. Maritime law is a good example of this category. Maritime law governs shipping, ships and sailors. Originally it was unwritten. It arose to facilitate trade and has continued to exist to this day because trade could not exist without it. In contrast to customary international law is conventional law. In its simplest form it is represented by the bilateral treaty. A treaty is an agreement negotiated between two or more countries. A treaty to which many countries are party is called a convention. Treaties and conventions may be enforced either through the operation of an international agency charges with the power to enforce, or, more commonly, by incorporation of the treaty terms into the domestic law of the signatory countries. Once incorporated into domestic law a treaty is enforced in the same manner as any domestic law.

Actors on the International Stage

The nation-state, as an institution, arose almost five hundred years ago. At one time it exercised a virtual monopoly over the creation and enforcement of international law. The dominant position of the nation-state has been greatly eroded in this century with a wide variety of institutions now playing a role in international law. Indeed private organizations and their members are now a very important source of international law.

The International Standards Organization, <http://www.iso.org/iso/home.htm>, is a very important actor in international environmental law. It is a private nonprofit organization that seeks to protect the environment through the ISO 14000 standard. Companies that adhere to ISO 14000 have agreed to implement certain environmentally friendly practices in their manufacturing processes. There are rivals to this approach such as that proposed by the Rainforest Alliance, <http://www.rainforest-alliance.org/>.

Confusion

There are now over 900 international legal instruments that have one or more elements of environmental regulation. This makes it difficult to determine the applicable law. The existence of a web site listing environmental treaties, <http://sedac.ciesin.org/entri/>, has helped.