This chapter focuses on the need for international attention to global environmental challenges. It asks to what extent law is an appropriate vehicle to address the large number and variety of environmental and natural resource problems. The chapter sets the stage for later analyses of characteristics of an effective legal response.
Dateline: The Pacific, 2030
The small island state of Mondonia was completely evacuated last week. An 85-year-old couple whose lives the media have been following daily became the last people to leave this lush tropical nation. The two were taken by helicopter from their lifelong home in the village of Susper. The airstrip that would have been their point of departure has not been in service for months, having been inundated by the rising waters of the Pacific Ocean.
Mondonia is the most recent of several small islands to be depopulated by the climate change that has resulted from what scientists forty years ago labeled the "greenhouse effect." The term refers to the increase in temperatures worldwide as the result of a variety of processes, most notably the burning of fossil fuels by humans.
At the turn of the century, Mondonia was the home of 50,000 people and a destination point for tourists who wished to experience the delights of tropical South Sea life. Now, one tenth of its earlier physical mass, with its splendid beaches washed away, it will be visited only by atmospheric scientists and the curious with high-powered boats. It stands as an eerie memorial to the excesses of contemporary industrial and consumer life.
Mondonia first felt the impact of global climate change twenty years ago when its modest production of foodstuffs began to drop, first by about 5 percent a year, then in much larger amounts as areas became flooded with salt water. Flash floods visited periodically. At the same time, sections of the country were in rare periods of drought, causing further erosion of the previously sustainable supply of crops. Exacerbating this problem was the intrusion of salt water into the country's main aquifer. Mondonia's small fishing take was eliminated when new species, foreign to the native population, replaced the fish that were a mainstay of the Mondonian diet. Migratory birds, forever an indicator of changing seasons, were seldom spotted. This was followed by reports of massive coral bleaching. About fifteen years ago, there was a spread of several infectious diseases previously not known on the island. Cases of encephalitis and cholera were reported in increasingly large numbers. Then a series of cyclones hit, though they had previously been very rare in the region.
There is neither a Susper nor a Mondonia, of course. But the story is not fiction; it is an extrapolation of the best science that exists to predict environmental conditions in the next several decades. Mondonia's story concerns the impacts of global warming.
Types of Global Environmental Challenge
To begin this treatment of law and the world environment, I could have told stories about matters other than the greenhouse effect or climate change, taking what science knows today and projecting it to the not-so-distant future. I could have focused on the rapidly dwindling population of rhinos or tigers or elephants in the world. From 1970 to 1998 the rhinoceros population decreased from 65,000 to 11,000; from 1900 to 1998 the tiger population decreased from 100,000 to 5,000; elephant herds plummeted from 1.3 million individuals to about 600,000 in the decade after 1979. The natural orangutan will be extinct in one decade if present patterns persist. I could have described the destruction of fish, quantifying the loss of specific species. In 1999, for instance, the biomass of spawning western bluefish was 13 percent of its 1975 level, and by 1999 60 percent of the world's fisheries were at or near declining points. In regard to regional catches, from 1986 to 1996 the number of fish species in the Black Sea dropped by about 75-80 percent. I could have chronicled the loss of sea turtles, four species of which—the loggerhead, the green leatherback, the hawksbill, and the Kemp's ridley—now face extinction, or decimation of the rich resources, including deep-sea corals, of the high seas. I could have addressed the escalating number of skin cancers related to the ongoing destruction of the protective ozone layer. By 2050 the number of new cases of nonmelanoma skin cancer in the United States linked to the drop in protective ozone may be as many as 100,000 a year (de Guijl 1995).
I could have drawn pictures of the cumulative effects of the loss of productive agricultural land (10 million acres each year). I could have viewed agricultural land more critically and focused on what its development takes away or what accompanies its successful development; up to 5 million cases of acute poisoning occur from pesticides annually. Loss of forest and woodland in the period 1700-1980 is estimated at one fifth, down from 47 percent of the global area in 1700 to 38 percent in 1980. From 1990 to 1995, 65 million hectares of forest were lost. I could have listed the thousands of species that will not be knowable by future generations because they will have been systematically wiped from the earth's surface. According to the Global Biodiversity Assessment, since 1600 extinction has occurred at 50 to 100 times the average estimated natural rate. Furthermore, the extinction rate is expected to rise between 1,000 and 10,000 times the natural rate.
Problems of water quantity, distribution, and quality are also enormous. Daily there are 25,000 deaths attributable to poor water quality and waterborne diseases. One fifth of the world's population is without a safe drinking water supply and a full 50 percent lacks access to a safe sanitation system (Global Environment Outlook 2000). One third of the world's coastal regions are in jeopardy, particularly from the development of infrastructure such as homes, commercial sites, roads, and sewers and from land-based pollution sources. Pollution and global warming have combined to destroy a quarter of the world's coral reefs. Tourism and oil spills (both from tankers and from fuel bunkers) threaten coastal areas in many regions of the world. Illegal transboundary movement of hazardous substances is rampant. A global estimate is lacking, but the value, if it were legally handled, is clearly in the billions of dollars. In one year alone tens of thousands of tons of ozone-depleting substances were smuggled, making chlorofluorocarbons (CFCs) the second most valuable smuggled contraband in Miami, following cocaine (International Environment Reporter, 4 August 1999, 648).
The first United Nations Global Environment Outlook (in 1997) summarized environmental trends by region, ranking them as "increasing," "remaining relatively stable," and "decreasing." Land degradation, forest loss and degradation, biodiversity loss and fragmentation of habitat, pollution and scarcity of fresh water are all increasing in at least half of the world's regions. Atmospheric pollution is increasing in two regions and remaining stable in the others. Urban and industrial contamination and waste is stable in half of the regions but worsening in the other half. The only trend labeled as green was for decreasing land degradation in North America. At the millennium, Global Environment Outlook 2000, although reporting in a different manner, saw similar challenges.
Ethnic and regional wars, hostilities, and military action also bring about air pollution related to the deliberate setting of oil fires, serious destruction of water systems, loss of habitat, and blocking of important flows in rivers by weapons and military vehicles. Although remarkably removed from the policy agenda in very recent years, the close-to-ultimate environmental destruction that would result from a nuclear confrontation has not been fully resolved.
All this degradation has occurred in a world populated now by about 6 billion people. Since 1960, the population doubled, and even though the rate of population growth has begun to slow, the increase from 6 billion to 7 billion will take eleven years. Within a half-century thereafter the number of people on Earth, each potentially a protector of the environment but each a consumer, each making an environmental impact, will be around 10 billion (Economist, 18 February 1996). The fastest-growing regions include parts of Africa that have the least developed environmental management systems.
The Outlook did cite some progress in international environmental developments: greater international cooperation and public participation, the emergence of private-sector action, and the emergence of legal frameworks, economic instruments, environmentally sound technologies, and clean production processes. Progress has been made in coordinating action to prevent further destruction of the ozone layer. Nonetheless, its damage continues.
Acid rain and transboundary air pollution are now found in many regions of the world. Energy-demand projections linked to economic development indicate an ever-increasing use of fossil fuels, with concomitant environmental challenges. Several regions continue to experience the accumulation of radioactive waste and the effects of past radioactive spills. Long-range transport of a variety of pollutants threatens areas once considered pristine, including the planet's poles.
It is necessary to differentiate the seriousness of global environmental challenges when focusing on world environmental problems with a view toward legal intervention. The alternative is to accept the position of systems breakdown resulting from the devastating effects of environmental problems such as global warming. Such warming goes hand in hand with desertification and ozone layer destruction that results in massive global health problems and decimation of species. In this scenario at the least, "changes in global bio-geochemical cycles and the complex interactions between environmental problems such as climate change, ozone depletion, and acidification may have impacts that will confront local, regional, and global communities with situations they are unprepared for. . . . The future might hold more . . . surprises" (Global Environment Outlook 1997, 3).
Global environmental challenges differ along several dimensions. Climate change is created by almost all nation-states or entities within those states and has global impacts. Other environmental challenges are created by regions of nation-states and have extraregional effects (e.g., disposal of untreated wastes within a river basin). Some involve illegal actions (e.g., destruction of oil fields and resulting air pollution, illegal trade in hazardous wastes, deliberate setting of fires to clear land). Global environmental change is aggravated by the intentional (in some places legal and some places illegal) actions of small groups of people or small numbers of nations (e.g., burning of the forests in Southeast Asia and the Amazon). The uncountable number of daily activities of significant percentages of the world population, nonmalicious actions of billions of people simply living their consuming lives (e.g., driving automobiles), also contributes to global environmental change. Other global environmental challenges result from not-so-innocent activities (e.g., dumping from cruise ships).
Global environmental problems may take years if not decades to register as unacceptable insults to human health. Examples include the effects of exposure to rays associated with destruction of the ozone layer or diseases related to climate change. Others manifest themselves immediately and in dramatic ways. Results of transboundary pollution can be macabre: In 1997 two Australians fell into the Yarkon River in Israel and died, not from drowning but from exposure to toxics. In the early 1990s several cases of encephalopathy were reported in Texas areas bordering Mexico. There were froglike babies with undeveloped brains and eyes on the sides of their heads. Some investigators linked these abnormalities to contamination by industrial wastes. The wastes also affect people who are forced to work in areas where the infrastructure is more primitive than in medieval times and to use water from putrid wells. Some get their water delivered in barrels formerly used to store radioactive wastes.
In the terminology of jurisprudence, the actions that law needs to target are those of misfeasance, malfeasance, and nonfeasance. Law speaks of violations of norms within sovereign entities. Norms are to be enforced by sanctions and incentives. Other fields employ different terms for the behaviors that law seeks to control. In the language of political science they are both legal and illegal actions of individual nation-states, regions, single actors, and collective actors. Sociology characterizes some of the actions as organizational outputs, others are the work of elites, still others of individuals. Economists describe the macroeffects of individual or collective action and failure to internalize external costs (Haas 1990, ch. 1).
My focus is on global environmental problems in their many forms. Degradation of the great seas; destruction of the earth's protective systems; loss of biodiversity; depletion of life-sustaining resources; transport across borders, physical and ecological, of substances that injure and kill; the end of natural beauty and cultural traditions—all are problems and all are potential targets of law. In addition, I will maintain a focus on change, worldwide, in climate patterns and events and evolving legal responses to it.
The Legal Response: Major Themes
As we shall see, the response to the Mondonia challenge of global climate change reflects a maturing understanding of what can be done through the law to protect the planet. Several important themes are marking the negotiations that have continued for more than a decade. To a certain extent the climate case builds on the experience of other multinational legal efforts. To some extent it is breaking new ground. In general in international environmental lawmaking there is a growing expectation that multinational negotiations should be transparent (a widely used term that means activities should be open and visible and understandable to interested people), accessible, responsible, and equitable. Reliance on economic incentives is evolving, although not trusted equally by all participants. There is also faith among many that corporate expertise and capabilities, advances in science and technology, and private investment will lead to desirable alternatives to the current international climate predicament. International efforts also emphasize a balance between cooperation and coercion, the recognition of state interdependency and sovereignty, the role of voluntary commitments and of environmental activists and the business sector, and the importance of information accessibility.
This book is about whether these strategies are sufficient for creating effective treaties and other international instruments. We now have three decades of experience with a modern international environmental law. A large number of approaches have been taken. In effect, there has been a natural experiment on what works well and what does not in the complex system of the physical and sociolegal environments. A voluminous literature exists regarding virtually all of the major initiatives. There is an evolving consensus about some approaches, and there are criteria for resolving matters where consensus does not now exist. Many studies, including those done specifically for this book, have tested alternative understandings across cases that range from atmospheric and ocean pollution to procedural initiatives. Scholars from many disciplines have generated a rich set of perspectives from which a rather comprehensive assessment of law's role can be made.
The Function of Law and Its Relationship to Other Institutions
Law aims to influence behavior in order to promote environmental quality. It works in parallel with other institutions. It also works according to dynamics that some theorists would not classify as institutional. Law interacts—sometimes effectively, sometimes awkwardly, sometimes counter productively—with other systems that seek to order behavior and achieve social control. But law is a distinctive institution.
A precise meaning of law is less self-evident in the international arena than in national domains. Neither is the import of international law on the global environment stage a matter of consensus. Some conclude that the world environment will be sacrificed in the absence of significant new international legal agreements. Other analysts hold that environmental quality can improve in spite of the law and that the law is almost irrelevant in achieving environmental goals. These critics include both those who look to nonregulatory mechanisms and market systems as alternatives to legal regimes and those who put great confidence in
local efforts, including grassroots and nongovernmental (NGO) efforts.
What to include within the construct of law at the international level is not a simple choice. The number of instruments that indirectly affect the quality of the environment is gigantic. The boundaries between law and other institutions aimed at influencing individual and collective behavior to promote environmental quality internationally are both weak and permeable. More so than at the domestic level, characterizing an institutional response as a legal initiative is a matter of some subjectivity, although most analysts will conclude that a legal instrument will involve decisions regarding jurisdiction, sanctioning, and standard, rule, or norm formation.
Many disciplines, including law, political science, economics, anthropology, organizational theory, and others, assist in understanding law's contribution to protection of the environment at the international level. Traditionally when legal scholars bound international law they point to several standard sources. These are international instruments (treaties, protocols, conventions, agreements); customary law, the general principles of law recognized by civilized nations; judicial decisions; and the writings of scholars.
Views on the nature of what should be fostered in international law differ dramatically. Some scholars and policy analysts promote a law that would create supranational organizations with innovative and unprecedented powers, including trade sanctions and criminal sanctions imposed by a central agency or world organization (Koskenniemi 1996; Vicuna 1992; Smith and Hunter 1992; Szasz 1992). On the other end of the continuum are scholars (Blatter, n.d.; Holdgate 1996; Hurrell and Kingsbury 1992; Ingram and Fiederlein 1988; Kamieniecke 1993; Lipschutz 1996; Mumme 1993; Shabecoff 1996; Switzer 1994) who conclude that only through participatory efforts can international legal initiatives be successful. These initiatives need to be structured by law but undertaken at the local level or among selective environmental alliances in ad hoc ways that are aware of the particular circumstances of an environmental problem. "Civic environmentalism," "civil society," and "environmental governance" are among the terms used by those in this policy camp.
Other writers and theorists accept some elements from either pole but emphasize additional characteristics (Chayes and Chayes 1991; D'Anieri 1995; Downs, Danish, and Barsoom 2000; French 1994; Gehring 1994; Haas and Haas 1995; Jurgielewicz 1995; Keohane 1995; Koh 1997; Mulenex 1991; Ostrom 1990; Raustiala 1997a,b; Sand 1991b; Sands 1993; Stone 1993; Susskind 1994a,b; Weiss 1993; Wettestad 1999; Young 1991). These include open exchange of relevant information, a hierarchy of progressively applied liability rules, understandable dispute resolution processes, coordination among related agreements, and establishment of independent secretariats.
Flexibility in achieving implementation, inclusiveness of parties, the involvement of NGOs, the existence of clear relationships to existing institutions, and a reasonable economic and considerable political commitment are also recognized. Still other theorists emphasize clarity of communication within and about the legal instrument itself, the natural or physical characteristics of the environmental objectives, scientific consensus, and a low threshold for initial entry by interested parties (i.e., a modest commitment and modest infringement on sovereignty).
The list of explanatory factors is long. This range of opinion is understandable since there is limited empirical work on the ground to assess what legally seems to have made a difference in promoting international environmental quality.
There are many other reasons for disagreement about how international environmental law should be structured. Potential parties to international environmental agreements reflect a range of conflicting interests: the generally wealthy North versus the poorer South, industrialized versus developing nations, Europe versus the United States and Australia. Alliances are numerous and shifting. There are also different understandings of the goals of international environmental law: how can success be determined when studying effects that may take decades to manifest themselves across billions of people throughout the globe, on land, in the seas, and in the atmosphere?
Some measure success in empirical, concrete terms. Is the water drinkable and fishable? Is the air no longer dangerous to breathe? Have we stopped the decimation of species? Is the global average temperature stabilizing? Other benchmarks can be used (Young, Demko, and Ramakrishna 1996). The law might be said to have made a considerable contribution if the behaviors of those who affect environmental conditions are influenced positively. It has been successful, in the views of some analysts, when it fosters international cooperation or when it makes decision making on environmental matters more democratic and inclusive. Finally, both analytical and politically driven differences abound regarding the most efficacious ways of reaching agreed-on goals: what kinds of legal and other institutional changes should be attempted?
The Approach of the Book
What kinds of environmental law work in what international situations? How should the world's nation-states organize themselves to create law aimed at stopping serious environmental degradation and at controlling the pollution created by multinational corporations, governments, organized criminals, unorganized groups, and individuals? To what extent should society look to nation-states, organized or individually, for greater environmental protection through law? How much should law be based on centralized rule-oriented control strategies, versus bottom-up participation, or economic incentives? For what set of challenges should legal design incorporate combinations of all of these approaches? This book uses these questions to structure a global assessment of law and the planet's environmental status and future.
It is facile to conclude that nothing works well in the international arena when evaluated by the standards of the most developed domestic legal systems. Some fairly sophisticated generalists in law and policy so conclude. Others grudgingly concede that in extreme situations there has been some marginal international progress that can be attributed to legal efforts. Whether these assessments are accurate and whether that is the most that can be expected from law are foci of this work.
I attempt to make the case here that our knowledge of the kind of law that makes a difference is considerable. We have had some impressive successes, including with ozone depleting substances and pollutants of the atmosphere, oil pollution, endangered species, pesticides and chemicals regulations and hazardous substances control. Just as important, we are learning how to structure international environmental law; we are identifying the conditions under which it is better to rely on conventional regulatory approaches, the circumstances when a focus should be on process and actions should be aimed at creation and dissemination of norms of environmental protection—before specific decisions are made on what is to be controlled, at what level, and under which institutional design. And we have learned about the important function of participation of those to be affected, from the individual to the giant multinational company, in the development of the law. Substantively we have slowed down some of the destructive actions of society on the environment, although not as effectively and as quickly as we need to. Procedurally, despite the involvement of different cultures, value systems, political systems, and needs, we are learning how to cooperate to the ends of environmental protection. We are doing so as the stresses on the global environment increase dramatically with population growth and economic development. It is clear that for some environmental challenges, initiatives including those of the law will find it very difficult to keep pace. The place of international law in the race, however, is not a mystery, and it is considerable, although erratic.
My aim is to add to the analysis of the efficacy of international environmental law and the policy directions that law should be taking. In the following chapters I first inventory, historically, the lawmaking activities of global and regional entities. This entails description of the institutions that make and implement the law. The meaning of law in the international environmental context is treated here. Cataloged are the main instruments of control and influence within the legal domain.
Chapter 3 then asks: who and what needs to be influenced by international environmental law? This question involves a presentation on sources of the challenges. I summarize first the actual and potential role that multinational enterprise organizations can take in solving the world's environmental problems. A major premise of the analysis is introduced: one cannot simply wish changes in human behavior that have not been manifest over decades or even centuries as a condition for international environmental strategy. Lawmakers cannot assume that large organizations are going to behave differently, although they are quite capable of saying they will do so. Contributions to global environmental quality of green or environmental management (eco-auditing, eco-labeling, green products and processes, green policies, environmental quality life cycle analysis) suggested or required by law are assessed.
Next is a look at individuals who degrade the environment and an inquiry into how law should target them. These include rogues, the poor, and the desperate. The spotlight then turns from them to the normal consumer. Here too lawmakers cannot assume that those who are or who constantly become more affluent will change their consuming behaviors because they recognize impacts on species or human communities other than their own.
The chapter addresses whether each of these individuals or groups, whatever its contributions to the environmental problem, needs to be targeted by law. Are other institutions likely to be more effective than law?
Chapter 4 focuses more sharply on some examples of international environmental law. Which have succeeded and which have been less than successful in adequately influencing behavior? In addition to global, generic, and comprehensive evaluations, several case studies are employed. Why have carefully and exhaustively drafted instruments sometimes not achieved their goals? Why have some nontraditional international approaches been so impressive?
Chapter 5 is based on an integration of the analysis in the first four chapters. This is in two parts. The first lays out expectations of conditions in which law will operate, including shared interests, science, and capacity and commitment of institutions public and private. The second part offers my recommendations. Which legal strategies might work better under what conditions? What factors will be present in successful attempts to protect this planet through the law?
According to Jacob Werksman (1996), the two main groups that study international institutions are lawyers and political scientists:
Lawyers tend to concentrate their attentions on the formal end of the scale, on international institutions that are known as "international organizations." . . . The definitions and taxonomies of the political scientist, on the other hand, take us away from legal formalities . . . focusing their definition of an institution on the extent to which it affects state behaviour rather than the formal legal structure of the institutions . . . as "persistent and connected sets of rules and practices." . . . They may take the form of bureaucratic organizations, regimes (rule-structures that do not necessarily have organizations attached), or conventions (informal practices).
(Werksman is quoting Haas, Keohane, and Levy 1993.)
I combine both traditions and those of organizational theory, sociology, and other disciplines to describe the function of law and to explain that function.