The Role of International Law in Preserving the Environment - Essay Example

?International Law, Global Norms, and the Environment In the contemporary international arena, international law occupies a somewhat amorphous position. This position is unfortunate, if unavoidable, in that international law offers one of the only potential mechanisms for truly addressing global environmental problems. This paper will explore some of the promises and problems of such an approach, before concluding that international law's most promising influence may not be, strictly speaking, legal. One must first understand the problematic status of international law, particularly in issues of the environment. On the one hand, intuition and logic demands that an international or regional response is in many contexts a practical necessity. The nations of the world routinely confront challenges that are global or regional in scope—challenges in areas as diverse as environmental change, communications technology, and regional security. These challenges demand a more coordinated and concerted approach than any single, national solution can provide. Should criminals launch from a server twenty feet into a neighboring sovereign state, it would be foolhardy to believe that the country whose citizens were targeted by such criminals could effectively investigate and prosecute the criminal agents. Should refugees flood into a region because of instability in one-state, the stability, welfare mechanisms, and infrastructure of all affected regional states are challenged by the sudden flux in displaced persons. It would be ignorant to assume that the actions of one state are not directly affected by the actions of other states. So it is with the environment. Should carbon dioxide spill out of factories run by Western businesses and make their way into the stratosphere, the areas affected by the resulting greenhouse effect won't be limited to the areas where those factories were built. Should toxic waste be dumped into a river that in turn feeds a lake or an ocean, the water will carry that waste to shores far removed from the polluters. One nation can do little to change the world, when their neighbors or their peers remain unconcerned about their own contributions. On the other hand, these same nations exist as legal entities thanks to a juridical system inherited from a time when legal purviews were far more provincial. As such, the legal regimes in place within each nation-state tend to privilege the sovereignty of that state, which is to say that they accord that state near-absolute control over the legal decisions that occur within their borders. The boundaries of jurisdiction are thus by default the dividing lines between different models or standards for jurisprudence, and should a nation will itself immune to the pressures or legal regimes in other countries, it can do so. Problematically, the incentive to do just that correlates positively with the relative power-status of the country in question. Weaker, smaller, less developed countries may feel that external legal pressures that might compromise national sovereignty are nonetheless in their best interest, since they do not wish to alienate the great military or economic powers, especially if they rely on those power for financial or military assistance, or for regular trade. The more powerful countries, by contrast, have every incentive to view their own sovereignty as inviolate, a reflection of their global standing. These countries also tend to be more effective in resolving problems within their own borders, and as such may feel like their approach to larger-scale problems should be adopted by less-powerful nations, rather than engaging in cooperative solutions that would compromise their own sovereignty alongside those of other state participants. Sadly, this scenario is precisely what has unfolded with many of our international institutions. The United Nations, for example, gives a select group of countries, the United States chief among them, de facto veto power over the will of the General Assembly. Perhaps most exemplary of this tendency is the WTO, which has as its mission international trade liberalization, and even has the ability to overrule member states' own sovereign legal regulations if they are deemed to be in conflict with free trade and thus conflicting with the member state's obligations as a signatory to the WTO charter. In this, the WTO provides an international face to what has long been the economic gospel of the United States and other Western economic powers: free trade benefits all, or so the convention goes, and in this the WTO is allowed to trump state sovereignty precisely because the largest states, those responsible for the GATT, and subsequently, the WTO, feel like any short-changing of state sovereignty will be in the sovereign interests of their own economic agenda. Similar histories inform agencies like the World Bank and the International Monetary Fund, which put international force behind the American conviction that structural adjustment policies were necessary for underdeveloped countries to develop, and to do so in a way that counterbalanced socialist/communist impulses and influences. In those few instances in which international accords have departed from U.S. strategic interests, or the interests of other largely influential states, like China or Russia, these countries have been able to absent themselves from these agreements with little consequence. The Kyoto Protocol went into effect without either China or the U.S. as a signatory, and is largely ineffective as a result. The International Covenant on Civil and Political Rights supposedly governs international civil and political rights, but it does so without the full involvement of the U.S., who found the original compromise position on capital punishment (namely that states could not execute juveniles) to be unacceptable to American jurisprudence. The various international coalitions for military action or sanctions rise and fall with the will of the United States, a state that then comfortably violates the sovereign territory of other states under the auspices of its own legal charter (enemy combatants and the recent killing of Osama bin Laden stand as two well-publicized examples). Hence the particular dilemma confronting international law: it is perhaps the only real mechanism capable of influencing and effecting the sort of action necessary to avoid significant environmental calamity, but it can only do so – in a fully legal sense – if the big powers agree that such actions are concordant with their own sovereign interests and thus agree to the full backing of various international regimes. At the same time, “during the last two decades, there has been a growing economic interdependence amongst states, accompanied by changes to technology and financial markets and an associated growth in numbers of transnational corporations” (Horn 2007, p. 53). With these changes have come a growing recognition that interdependence requires pragmatic compromises that might run counter to traditional sovereign interests. And, although the cases are slight, there are instances in which the potential of international law to address environmental problems has actually been fulfilled, most notably in the Montreal Protocol, which regulated substances that were adversely harming the stratospheric ozone layer, resulting in increased amounts of harmful UV-B rays into the atmosphere. The Montreal Protocol is notable here for two major reasons. First it represents a moment when a full range of international partners cooperated on the understanding that their own activities must be sublimated to the collective good—a phrase that would receive some codification, years later, as the “common concern of humankind” (henceforth, CCH) in the preamble to the Rio Convention on Biological Diversity. Second, it involved the major players taking steps to change their own behavior, modeled on environmentally harmful models of development, and incurring the cost of such changes for themselves and for lesser-developed countries. In addition, this agreement has been resilient, being amended several times, most notably in London and most recently in Beijing. The agreement stands out as an example of what international law can do when parties mobilize around the collective concern of humankind. Nonetheless, the Montreal Protocol must be understood as exceptional in a more disappointing sense, in that the Protocol, one of less than a handful of other substantive international environmental accords, is an exception to the norm and it hints at how infrequent and non-productive such international legal regimes typically are. The task for activists, legal scholars, and policymakers is to maximize the possibility that international law can once again be tapped, especially when dealing with the issue that is likely to define the 21st century: development, sustainable or otherwise. The 21st century has already seen periods of swift development occurring in countries that were once relegated to lesser-developed status. Explosions in information and communication technology infrastructure on the African continent, the Indian subcontinent, and a host of other areas have brought with them rapid economic growth, consumption, shifting and expanding demographics, and environmental repercussions. Development will happen—is already happening—and the question that confronts the more developed countries today is whether or not those new developments will take place with the same environmental recklessness that marked the rapid industrialization of the great powers, especially in the West. If that takes place, then the global consequences will be severe. Unfortunately, something of a trust deficit is at work. Lesser developed countries know all too well the ways in which international law has been twisted to align with the interests of the more powerful, more developed countries. They are all too keenly aware that “international law has at times been used as a tool to legitimize the actions of the victors and the powerful. Unjustified use or forceful justification of international law has created more problems than resolutions. The heart of such problems is the use and abuse of international law by western countries, with developing countries relegated to the role of observers” (Archarya 2007, p. 402). To suddenly suggest that the development of these less influential countries should be qualified by those same countries whose developmental cycles are currently responsible for so much global environmental malaise seems hypocritical. As such, it would seem that any international legal agreement predicated on limiting developing states while maintaining the status and standards of the already developed nations will be uncompelling, and ultimately, unsuccessful. One proposal is to look toward the “soft law” of recent international legal preambles, and the history of justifications for other international accords, like the Montreal Protocol, and derive from them core principles that can govern future legally binding treaties and their implementation. The Common Concern of Humankind is an example of such a principle, one that supersedes and thus directs sovereign interest through the idea that certain problems cannot be addressed or even understood as the concern of some regional or national power, no matter its size or resources. As Laura Horn notes, In order to achieve sustainable development, there must be cooperation between states at an international level which should flow through regional and national levels so that individuals at the local level receive support in their communities to carry out action to achieve environmental protection. The CCH can thus be seen to operate as an overarching concept that can directly influence the operation of related concepts of international law (Horn 2007, p. 58). If we take the CCH as an antecedent legal principle to that of national sovereignty, the manner in which treaties conceived in this manner would approach the sustainability of development, or other super-regional or global environmental issues would change considerably. The problem, though, is that there exists a wide gap between the soft law of a lofty principle and the hard law of legal justification. And while the CCH no doubt enjoys a certain appeal, it does not have a history of legal precedents to fall back upon, and thus fails to provide a source for litigation. As such, the term sustainable development is something of a misnomer or misapplication, in that it allows concern for global environmental effects to produce unequal treatment under international law: The concept of the Earth as a single environmental entity and the people of the Earth as a single family has not been recognized, so real equity under law, which is embraced in the idea of the right to development, has been diminished by the concept of sustainable development. Under such conditions, sustainable development can be viewed not as development, but rather as a tool sustaining the lifestyles of those who already enjoy every material advantage... (Archarya 2007, p. 413) Put differently, the CCH cannot be the foundation for a legal regime in and of itself: “The problem remains of how to integrate international legal norms and principles, particularly also the principle of common but differentiated responsibility, along with human rights and other norms” (Horn 2007, p. 66). Still, this problem of integration suggests a solution. If the goal is integrate the CCH within existing legal regimes, this step has already been taken, in that the CCH has already been formally recognized in the Rio Convention. It would be but a short step to retroactively amend other international treaties – Montreal, Kyoto, CEDAW, “and so on – as legal entities consistent with the CCH as a principle. In this, the CCH “can encourage the further development of other principles and concepts of environmental law such as the precautionary principle and intergenerational and intragenerational equity” (Horn 2007, p. 78). A principle thus serves an auxiliary purpose to a legal statute, in that it helps to define the contours and intent of the law and while it cannot provide the sort of legal standing that formalized rights can, a principle like CCH can contextualize and inform how and why legal regimes are executed when the agreement translates its global ambitions into regional or national action. In addition, principles like the CCH establish a new set of norms. We should remember that the model of legal sovereignty that the nation states today inherited did not itself spring from the font of creation as if it was the only organizing principle the world could know. Instead it emerged from a long and contested period of world history, and developed as an acceptable norm. It was, at some point, a principle, much like CCH is today. If we are to create an international legal regime capable of responding to the international problems endemic to the 21st century, we must endeavor to elevate the principle of CCH to a norm, a new norm, from whence the legal implements of a new international law can develop. Bibliography Archarya, U.D. 2007, 'Is development a lost paradise – trade, environment, and development: a triadic dream of international law', Alberta Law Review, vol. 401, no. 45, pp. 401-420. Horn, L. 2007, 'Globalisation, sustainable development and the common concern of humankind', Macquarie Law Journal, vol. 80, no. 7, pp. 53-80. Read More