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Global Change
Instruction Program
I. What is International
Environmental Law?
Environmental Laws in General States, the most common examples of national
Environmental laws are the standards that law are federal and state legislation and judicial
governments establish to manage natural decisions. Agency regulations and executive
resources and environmental quality. The broad orders would also fall within this category.
categories of “natural resources” and “environ- Although these national laws are adopted by
mental quality” include such areas as air and an individual country, they may have internation-
water pollution, forests and wildlife, hazardous al impacts. A foreign manufacturer whose defec-
waste, agricultural practices, wetlands, and land- tive product injures a person living in the United
use planning. In the United States, some of the States may be held liable for resulting damages
more widely known environmental laws are the under U.S. law. The U.S. Corrupt Practices Act
Clean Air Act, the Clean Water Act, the National prevents a U.S. corporate executive from bribing a
Environmental Policy Act, and the Endangered foreign government official. While these laws
Species Act. The body of environmental law affect international activities and non-national
includes not only the text of these laws but also parties, they are generally not considered interna-
the regulations that implement and the judicial tional law. Rather, they are considered extraterrito-
decisions that interpret this legislation. rial applications of national law.
In general, the standards set forth in environ- International law, on the other hand, concerns
mental laws can apply to either private parties or agreements among different nations, or between
the government. The Clean Air and Clean Water citizens or corporations of different nations.
Acts, for example, are frequently used to regulate Agreements or treaties among different nations are
the polluting activities of private enterprises. generally referred to as public international law.
These laws mandate certain pollution-reducing Contracts between private parties (corporations or
technology or limit the levels of pollution for citizens) residing in different nations are generally
power plants and factories. The National referred to as private international law. Because the
Environmental Policy Act (NEPA) applies only to field of international environmental law focuses on
the actions of the U.S. government. NEPA the relations and agreements among nations, it is
requires that the federal government undertake a part of public international law.
comprehensive environmental impact assessment Distinguishing between Hard and Soft
before it can proceed with projects that are likely International Law
to harm the environment.
Distinguishing National Law from Adistinction is often made between hard and
International Law soft international law. Hard international law
generally refers to agreements or principles that
To understand the nature of international are directly enforceable by a national or interna-
environmental law, one must first understand the tional body. Soft international law refers to agree-
difference between national and international law. ments or principles that are meant to influence
National law is law that is adopted by the govern- individual nations to respect certain norms or
ment of an individual country. In the United incorporate them into national law. Soft interna-
tional law by itself is not enforceable. It serves to
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Understanding Global Change: Earth Science and Human Impacts
articulate standards widely shared, or aspired to, ments to enforce rulings. For economic and polit-
by nations. ical reasons, this cooperation is often withheld.
Similar parallels can be found at the national Asmall number of environmental agreements
level. Often an official, a legislative body, or an have established international institutions that
agency will announce a new public policy or pri- can directly impose trade sanctions (such as the
ority. In this announcement, or proclamation, Montreal Protocol, discussed on p. 20) or have
there are often pledges to incorporate this new authorized member states to impose trade sanc-
policy or priority into specific legal provisions. tions against violating parties (such as the
While the announcement itself is not enforceable International Convention for the Regulation of
in court, it nonetheless can have a powerful influ- Whaling, discussed on p. 29). For instance, in
ence on the development and implementation of response to Japan’s violation of the International
specific legal provisions. Whaling Commission’s whaling moratorium, the
Private international law generally concerns United States threatened to restrict Japanese fish-
business transactions between citizens or corpora- ing vessel activity in U.S. territorial waters. Japan
tions of different countries. Because most of the elected to accede to the whaling moratorium
rules governing these private transactions are rather than suffer any such restrictions.
enforceable in the courts of the concerned coun- The type of sanctions envisioned under the
tries, these rules are usually deemed hard interna- Montreal Protocol and International Whaling
tional law. Most of international environmental Commission are procedurally very difficult to
law, however, concerns general principles agreed impose. In general, there is no international body
upon among nations. Although these principles authorized to directly enforce international envi-
sometimes oblige countries to adopt implementing ronmental law. The task of direct enforcement is
legislation, they are not usually enforceable on their left to the member nations, whose governments
own in court. propose and adopt implementing policies.
The soft status of international environmental Sometimes the implementing national legislation
law, and most international law, is a result of con- is identical to the international agreement. For
cerns over sovereignty. Nations are generally example, Canada implemented the Migratory
reluctant to surrender control over their territory, Birds Treaty (with the United States) by adopting
peoples, and affairs to external international the Migratory Birds Treaty Act. Because the lan-
authorities. Even when nations have joined in guage of this act is identical to language in the
international agreements, many of them have treaty, the law is basically a legislative codifica-
added reservations to preserve their right to tion of the international agreement.
decline to be bound by particular parts of the Other times, however, the international envi-
agreement. The exercise of this power weakens ronmental agreement is of a general nature and
the total effectiveness of many international national governments must draft and implement
agreements. more specific laws. For instance, in 1989 the
Means of Implementing and Enforcing International Convention on Transboundary
International Environmental Law Movement of Hazardous Waste was signed in
Basel, Switzerland. This convention forbids the
There are forums where international envi- export of hazardous wastes to countries that lack
ronmental disputes can be adjudicated, such as “adequate means to dispose of them.” Under the
national courts, the International Court of Justice, terms of the convention, signatory nations are
and international arbitration panels. These called upon to draft their own more specific
forums, however, generally require that the dis- national laws to implement this pledge.
puting parties voluntarily submit to the Although international institutions are gener-
jurisdiction of the court or panel. Additionally, ally not responsible for directly implementing
even when these forums obtain jurisdiction over and enforcing international environmental law,
an international environmental dispute, they they often play important monitoring, informa-
must rely on the cooperation of national govern- tional, and diplomatic roles. For example,
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International Environmental Law
agendas adopted at the 1992 Convention on the Framework Convention on Climate Change,
Environment and Development at Rio de Janeiro and the Biodiversity Convention provide eco-
created a new international body, the nomic incentives in the form of technical assis-
Commission on Sustainable Development (CSD). tance, technology transfers, and money to build
The CSD meets yearly at the United Nations in the administrative capacity of national environ-
New York to review and advance the implemen- mental agencies. These incentives have been of
tation of Agenda 21—an enormous and complex particular value in promoting the involvement
mandate. Most global agreements, such as the and compliance of developing countries—part of
Biodiversity Convention and the Framework the Rio bargain between northern (developed)
Convention on Climate Change, are implemented and southern (developing) countries. The Global
by an annual or biennialConference of Parties Environmental Facility (GEF), a new international
(COP). These COPs lack the power to bring funding institution, also provides money for
enforcement actions against either governments training, equipment, and enforcement related to
or private parties. They help monitor national environmental protection measures. Some recent
compliance by requiring member nations to sub- international environmental agreements, such as
mit annual reports. Through meetings and publi- the Biodiversity Convention, have designated the
cations, COPs also provide a forum to discuss GEF as their exclusive funding mechanism.
and debate issues associated with the implemen- Jurisdiction for Disputes: Courts,
tation of the agreement. Parties, and Enforcement
There are other institutions similar in func-
tion to the CSDs and the COPs. The North Roughly speaking, jurisdiction may be
American Commission on Environmental defined as a court’s legal ability to hear a com-
Cooperation (NACEC), based in Montreal, plaint. If the subject matter of the case is not
Canada, monitors compliance with the North within the scope of a court’s jurisdiction, or if one
American Agreement on Environmental of the parties, either the one bringing the case
Cooperation, one of the side agreements under (plaintiff) or the one against whom it is brought
the North American Free Trade Agreement (defendant) is not within a court’s jurisdiction, the
(NAFTA). The European Environmental Agency, court will not hear the dispute. This is particularly
based in Copenhagen, Denmark, monitors the relevant to international environmental law for a
compliance of individual European countries number of reasons. First and foremost, if a treaty
with environmental directives adopted by the or convention does not specify an international
European Union. forum that has subject-matter jurisdiction, often
Although the CSD, COPs, NACEC, and the the only place to bring a suit with respect to that
European Environmental Agency indicate that treaty is in the member state’s domestic court sys-
the international community is trying to improve tem. This then presents at least two additional
compliance with environmental agreements, there hurdles. If the member state being sued does not
is still a lack of effective implemention and have domestic implementing legislation in place to
enforcement. A1992 study by the U. S. General hear the dispute, there will be no forum available.
Accounting Office concluded that international Even in the event that the domestic legislation pro-
environmental agreements lack adequate proce- vides for suits of this nature, the judges who
dures to monitor and ensure compliance. decide the case are residents of the country against
Countries have become skilled in negotiating which it is brought, and the resulting potential
international environmental agreements, but they conflicts of interest are apparent.
are much less skilled at making the agreement With respect to parties, only nations are bound
operate effectively. by treaties and conventions. In international
In the past two decades, states have also used forums, such as the International Court of Justice,
economic incentives and trade bans to encourage countries must consent to being sued in order to
compliance with international environmental preserve their sovereignty. Thus, it is often impos-
agreements. For example, the Montreal Protocol, sible to sue a country. In any case, it is often a
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Understanding Global Change: Earth Science and Human Impacts
transnational corporation (TNC), not a country, Countries usually accept or avoid interna-
that has violated an international agreement. It is tional environmental obligations because it is in
nearly impossible to sue a country for not enforc- their economic self-interest to do so. Nations
ing its laws against a TNC or for not enacting suf- rarely take actions that may harm their domestic
ficient implementing legislation. economy or their international trade for altruistic
The final difficulty in the jurisdictional arena is reasons. They take these actions expecting some
the question of who may bring a suit. Often, only economic or political benefit sooner or later.
countries may sue countries, not individual citi-
zens and not nongovernmental organizations.
This has huge repercussions in that the environ-
mental harm must be large and notorious for a
country to even notice it. Second, for a country to
have a stake in the outcome of the subject matter,
some harm may have to cross the borders of the
violating country into the country that is suing.
Finally, even if transboundary harm does exist,
the issue of causation, especially in the environ-
mental field, is often impossible to demonstrate
with any certainty.
In addition, in all fields of international law
no country is ever in perfect compliance with
every international obligation. Moreover, some
countries are substantially more powerful than
others. This may seem self-evident and unimpor-
tant, until one considers that suing another coun-
try may expose the plaintiff country to retaliatory
actions. In spite of this political reality, however,
Mexico successfully challenged the United States
in the World Trade Organization in the Tuna-
Dolphin Case, and several Asian countries suc-
cessfully challenged the United States over U.S.
efforts to compel shrimp-exporting countries to
harvest shrimp without harming turtles.
The enforcement issue is one where advocates
for a safer environment often find themselves
stymied. The entirety of international law, beyond
the environmental field, remains largely unen-
forceable, even if a treaty or convention provides
for specific substantive measures to be taken by a
country (which is not always the case, since many
treaties merely provide frameworks), and even if a
forum for litigation or dispute resolution is speci-
fied or sanctions by member states for noncompli-
ance are authorized. Acountry cannot be forced to
do what it is not willing to do. One can sanction
the country, order damages, restrict trade, or, most
frequently, declare noncompliance, but beyond
that, if a country will not comply, there is very lit-
tle to be done.
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