(Joseph F. C. DiMento) The Global Environment and

THE GLOBAL ENVIRONMENT AND INTERNATIONAL LAW
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THE GLOBAL
ENVIRONMENT
AND Joseph F. C. DiMento
INTERNATIONAL
LAW
University of Texas Press

Austin
Copyright © 2003 by the University of Texas Press
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Printed in the United States of America
First edition, 2003
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The paper used in this book meets the minimum requirements of
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Library of Congress Cataloging-in-Publication Data
DiMento, Joseph F.
The global environment and international law / Joseph F. C.
DiMento.—1st ed.
p. cm.
Includes bibliograpical references and index.
isbn 0-292-71620-6 (cloth : alk. paper)—isbn 0-292-71624-9
(pbk. : alk. paper)
1. Environmental law. International. I. Title.
k3585 .d54 2003
341.762—dc21
2002012296
To
Donald N. Michael (in Memoriam)
and
Joseph L. Sax
I’m hopeful . . . and this is important to us as a species . . . we
tend to do the right things when we get scared.
—Octavia Butler, novelist, New York Times interview,
1 January 2000
CONTENTS
Preface ix
Acknowledgments xi
List of Acronyms xiii
1. Worldwide Environmental Quality and the Role of Law 1
2. Law Trying to Save the Earth: Strategies, Institutions,

Organizations 13
3. Law’s Targets: Whose Behavior Needs to Be Influenced? 57
4. An Accounting: Successes and Failures in International

Environmental Law 82
5. International Environmental Law: Expectations and

Recommendations 141
Notes 187
Bibliography 201
General Index 237
Author Index 243
Conventions Index 247
Case Index 249
PREFACE
Those who have followed the attempts in Rio de Janeiro, The Hague,
Nairobi, Stockholm, Montreal, Kyoto, Buenos Aires, and Johannesburg
to construct an international law of the environment have witnessed an
intense, active, colorful, fascinating, and often confusing drama. They
may have wondered whether the sometimes circuslike sessions involving
heads of state and indigenous people and observers actually can produce
what they understand to be effective law. Many legal specialists also
question the contribution of the immense outpouring of instruments
created to address global environmental degradation in the last several
decades.
This book aims to answer the question “To what extent has interna-
tional environmental law mattered?” I seek to do so in several ways. I
summarize the history of the movement in law toward regional and global
efforts to protect species, conserve resources, and stop pollution. I evalu-
ate the effectiveness of efforts found in hundreds of treaties, customary
laws, soft laws, and related international agreements. I describe the in-
struments that have been employed and the characteristics they share.
Some of the lawmaking techniques are new and innovative. They
reflect experiments to organize hundreds of nations and thousands of
cultures to confront unprecedented global challenges. International en-
vironmental law is a part of international law itself, but it also has been
a major harbinger of change in global law generally. It has been a labo-
ratory to test approaches to lawmaking and implementation that may be
more generally applicable.
Two objectives come together in the newer international environ-
mental law. One is substantive: slow down environmental harm, restore
ecological health. The other is procedural: try to do so through cooper-
ative activities that recognize and respect widely differing cultures and
value systems. These are objectives to which I was first introduced by the
people to whom I dedicate this work. Joseph Sax helped make the envi-
x The Global Environment and International Law
ronment a subject of worldwide interest. Donald Michael helped policy-

makers understand how social process can be structured to reach long-
range goals.
I think that the topic is too important to be the domain only of spe-
cialists, so I have written for both professionals who are in dialogues
about matters of fundamental importance to a law that works and for
the citizen who wants to know how the law can better address global
protection.
I aim to tell a story not well known by many concerned world citi-
zens. In doing so I try to make competing legal frameworks under-
standable to people who often have rigid ideas about the role and po-
tential of the law, to make social control and environmental policy
comprehensible to legal scholars and practitioners, and to provide a
framework for appreciating what can make the law effective.
International environmental law is an enterprise that often is mis-
understood and too facilely maligned. In fact it has had considerable
successes and, while facing daunting challenges, has an even greater
potential.
Irvine, California, September 2002
ACKNOWLEDGMENTS
Many of the ideas set forth in this book evolved through conversations
with colleagues in international environmental law and policy. Among
the most important were those with Stefano Nespor, editor of Rivista
Giuridica Dell’Ambiente, an environmental law journal. Stefano also
introduced me to ELNI, the Environmental Law Network International.
Helen Ingram pointed me toward a literature that is not in the main-
stream of environmental law but should be. Gilbert Geis, as always, kept
me working in as intelligent a way as I am able. Pamela Doughman con-
tributed immeasurably throughout and centrally to the sections on the
North American Free Trade Environmental Side Agreement. Suzanne
Levesque, then a graduate student, summarized brilliantly a section of
the literature. Reviewers for the University of Texas Press offered ex-
tremely useful suggestions. UCI librarians Kay Collins and Julia Gelfand
assisted in bibliographic research. Carol Wyatt, Dianne Christianson,
and Ben Yater of UCI provided typically flawless word-processing assis-
tance. Deborah Newquist, my wife, and my no longer little ones Joseph
and Allie created an environment that allowed me to make this small
contribution to the environment. The National Science Foundation Di-
vision of Law and Social Sciences, the Canadian Government Research
Council, the Global Peace and Conflict Studies program at UCI, and the
University of California-Irvine Institute on Global Conflict and Cooper-
ation funded underlying research for sections of the work and an inter-
national workshop that generated personal contributions of Byung-Sun
Cho, Elizabeth DeSombre, Ronnie Lipschutz, Richard Matthew, Albert
Mumma, Christopher Stone, Kilaparti Ramakrishna, Prue Taylor, and
Tullio Scovazzi. Finally, my mother has never stopped supplying support
in many ways.
ACRONYMS
BSEP Black Sea Environmental Programme

CEC Commission for Environmental Cooperation, under the
NAFTA Environmental Side Agreement
CERES Coalition for Environmentally Responsive Economies
CFC chlorofluorocarbon, an ozone-depleting substance
CITES Convention on the International Trade in Endangered
Species
COP Conference of the Parties
EC or EEC European Economic Community
ECJ European Court of Justice
EIA environmental impact assessment
EMAS Eco-Management and Audit Scheme of the European
Union
EU European Union
FAO Food and Agriculture Organization
FCCC Framework Convention on Climate Change
GAO General Accounting Office, United States
GATT General Agreement on Tariffs and Trade
GEF Global Environmental Facility
GMO genetically modified organism
ICJ International Court of Justice
IGO intergovernmental organization
INC International Negotiating Committee of the FCCC
IPCC Intergovernmental Panel on Climate Change
JPAC Joint Public Advisory Committee of NAAEC
MARPOL International Convention for the Prevention of Pollution
from Ships and Its Protocol
MEA multilateral environmental agreement
NAAEC North American Agreement on Environmental
Cooperation
xiv The Global Environment and International Law
NAFTA North American Free Trade Agreement

NATO North Atlantic Treaty Organization
NCP noncompliance procedure
NGO nongovernmental organization
ODS ozone-depleting substance
OECD Organization for Economic Cooperation and
Development
POPs persistent organic pollutants
TREMs trade-related environmental measures
UNCED United Nations Conference on Environment and
Development
UNCLOS United Nations Convention on the Law of the Sea
UNDP United Nations Development Programme
UNEP United Nations Environment Programme
USAID United States Agency for International Development
WMO World Meterological Organization
WTO World Trade Organization
Y2Y Yellowstone to Yukon Conservation Initiative
THE GLOBAL ENVIRONMENT AND INTERNATIONAL LAW
1. WORLDWIDE ENVIRONMENTAL QUALITY
AND THE ROLE OF LAW
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.
MONDONIA
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 fol-
lowing daily became the last people to leave this lush tropical nation.
The two were taken by helicopter from their lifelong home in the vil-
lage of Susper. The airstrip that would have been their point of de-
parture 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 depopu-
lated 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 pro-
cesses, 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 vis-
ited 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
2 The Global Environment and International Law
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 be-
came 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 fol-
lowed 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 in-
creasingly 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 en-
vironmental 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 popu-
lation 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 1979.1 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 bio-
mass 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 log-
gerhead, the green leatherback, the hawksbill, and the Kemp’s ridley—
Worldwide Environmental Quality and the Role of Law 3
now face extinction, or decimation of the rich resources, including deep-

sea corals, of the high seas. I could have addressed the escalating num-
ber 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).2 I could have
viewed agricultural land more critically and focused on what its devel-
opment 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 Assess-
ment, 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.3
Problems of water quantity, distribution, and quality are also enor-
mous. Daily there are 25,000 deaths attributable to poor water quality
and waterborne diseases. One fifth of the world’s population is with-
out 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 de-
velopment 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 move-
ment 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 (Interna-
tional Environment Reporter, 4 August 1999, 648).
The first United Nations Global Environment Outlook (in 1997) sum-
marized environmental trends by region, ranking them as “increasing,”
“remaining relatively stable,” and “decreasing.” Land degradation,
forest loss and degradation, biodiversity loss and fragmentation of habi-

tat, 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 bil-
lion to 7 billion will take eleven years. Within a half-century thereafter
the number of people on Earth, each potentially a protector of the envi-
ronment 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 en-
vironmental management systems.
The Outlook did cite some progress in international environmental
developments: greater international cooperation and public participa-
tion, the emergence of private-sector action, and the emergence of legal
frameworks, economic instruments, environmentally sound technolo-
gies, and clean production processes. Progress has been made in coordi-
nating action to prevent further destruction of the ozone layer. None-
theless, its damage continues.
Acid rain and transboundary air pollution are now found in many re-
gions of the world. Energy-demand projections linked to economic de-
velopment indicate an ever-increasing use of fossil fuels, with concomi-
tant 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 sys-

tems 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 inter-
actions 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 signifi-
cant percentages of the world population, nonmalicious actions of bil-
lions of people simply living their consuming lives (e.g., driving auto-
mobiles), 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 reg-
ister as unacceptable insults to human health. Examples include the ef-
fects of exposure to rays associated with destruction of the ozone layer
or diseases related to climate change. Others manifest themselves imme-
diately 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 bor-
dering Mexico. There were froglike babies with undeveloped brains and
eyes on the sides of their heads. Some investigators linked these abnor-
malities 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 radio-
active wastes.
In the terminology of jurisprudence, the actions that law needs to tar-
get are those of misfeasance, malfeasance, and nonfeasance. Law speaks
of violations of norms within sovereign entities. Norms are to be en-
forced 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 sys-
tems; loss of biodiversity; depletion of life-sustaining resources; trans-
port across borders, physical and ecological, of substances that injure
and kill; the end of natural beauty and cultural traditions—all are prob-
lems and all are potential targets of law. In addition, I will maintain a
focus on change, worldwide, in climate patterns and events and evolv-
ing legal responses to it.
THE LEGAL RESPONSE: MAJOR THEMES

As we shall see, the response to the Mondonia challenge of global cli-
mate 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 equi-
table. Reliance on economic incentives is evolving, although not trusted
equally by all participants. There is also faith among many that corpo-
rate expertise and capabilities, advances in science and technology, and
private investment will lead to desirable alternatives to the current in-
ternational 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 impor-
tance 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 com-
plex 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 pol-
lution 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 qual-
ity. It works in parallel with other institutions. It also works according to
dynamics that some theorists would not classify as institutional. Law in-
teracts—sometimes effectively, sometimes awkwardly, sometimes coun-
ter 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 environ-
mental 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 al-
ternatives 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 be-

havior to promote environmental quality internationally are both weak
and permeable. More so than at the domestic level, characterizing an in-
stitutional 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, anthro-
pology, 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 prin-
ciples 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 unprece-
dented powers, including trade sanctions and criminal sanctions imposed
by a central agency or world organization (Koskenniemi 1996; Smith and
Hunter 1992; Szasz 1992; Vicuna 1992). On the other end of the contin-
uum 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 suc-
cessful. 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 prob-
lem. “Civic environmentalism,” “civil society,” and “environmental gov-
ernance” 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; Wet-
testad 1999; Young 1991). These include open exchange of relevant
information, a hierarchy of progressively applied liability rules, under-
standable 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 in-
stitutions, and a reasonable economic and considerable political com-
mitment 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 under-
standable 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 inter-
national 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, indus-
trialized 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 Ra-
makrishna 1996). The law might be said to have made a considerable
contribution if the behaviors of those who affect environmental condi-
tions 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, or-

ganized 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 chem-
icals 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 con-
ventional regulatory approaches, the circumstances when a focus should
be on process and actions should be aimed at creation and dissemina-
tion of norms of environmental protection—before specific decisions
are made on what is to be controlled, at what level, and under which in-
stitutional 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 en-
vironment, although not as effectively and as quickly as we need to. Pro-
cedurally, 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 chal-
lenges, 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 envi-

ronmental law and the policy directions that law should be taking. In
the following chapters I first inventory, historically, the lawmaking ac-
tivities of global and regional entities. This entails description of the in-
stitutions 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 interna-
tional 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 in-
troduced: one cannot simply wish changes in human behavior that have
not been manifest over decades or even centuries as a condition for inter-
national 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 environmen-
tal 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 in-
quiry 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 be-
haviors because they recognize impacts on species or human communi-
ties other than their own.
The chapter addresses whether each of these individuals or groups,
whatever its contributions to the environmental problem, needs to be tar-
geted by law. Are other institutions likely to be more effective than law?
Chapter 4 focuses more sharply on some examples of international en-
vironmental law. Which have succeeded and which have been less than
successful in adequately influencing behavior? In addition to global, ge-
neric, 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 ap-
proaches 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 condi-
tions 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 bet-
ter under what conditions? What factors will be present in successful at-
tempts 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 af-
fects state behaviour rather than the formal legal structure of the in-
stitutions . . . as “persistent and connected sets of rules and prac-
tices.” . . . They may take the form of bureaucratic organisations,
regimes (rule-structures that do not necessarily have organizations at-
tached), 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.
2. LAW TRYING TO SAVE THE EARTH:
STRATEGIES, INSTITUTIONS, ORGANIZATIONS
This chapter addresses law as an instrument of international environ-

mental protection. It first presents a short history of international envi-
ronmental law. It then describes modern law by type: global, multi-
lateral, and regional within the treaty regime; court-made law; and soft
law. Then the analysis describes criteria that distinguish an instrument
as law and relates the meeting of these criteria to international law’s
effectiveness.
The proliferation of treaties, conventions, and protocols on environ-
mental protection regionally, from a transboundary perspective, and
globally has been dramatic. In the last quarter-century nation-states
have entered into more than 250 international environmental instru-
ments. Overall, almost 1,000 instruments have at least one provision ad-
dressing the environment. To be sure, the actual number of major trea-
ties in which the main focus is an environmental issue is smaller, but the
number is significant because it communicates how the environment has
been legally recognized internationally. A modest environmental law
based on custom has also evolved, and the development of various forms
of soft law has accelerated, such as in hortatory statements of the Bio-
diversity Convention and the Statement of Forest Protection Principles
and in norm recognition. The growth of international environmental
law led the United Nations to pass a resolution directing that both the
Security Council and the General Assembly be kept informed of inter-
national environmental conventions.1
The widespread concern over global protection of the natural envi-
ronment is primarily a recent phenomenon. Contemporary surveys con-
sistently identify saving of endangered species, control of atmospheric
pollution, and related phenomena as legitimate foci of public policy rec-
ognized by a cross section of people worldwide. Though general public
concern was not evident even a few decades ago, the international focus
is not a completely new one. Legal efforts to address problems of oceans,
of endangered species, of migratory birds, of landscapes, and of other

natural resources date back well into the 1800s.2
By the mid-nineteenth century, although the term “environment” was
not yet part of the legal vocabulary, protection of nature was the subject
of several international laws, treaties, and organizational efforts. Bilat-
eral treaties such as the 1818 Convention Respecting Fisheries, Bound-
ary and the Restoration of Slaves between the United States and the
United Kingdom that addressed natural resources existed even before
that time, but the objective was not protection, rather it was allocation
of rights. In 1867 France and Great Britain entered into a convention
relative to fisheries, and two years later Constance and Basle created a
convention regulating fishing in the Rhine. Salmon fishing in the same
river’s basin was addressed in a treaty signed by Germany, Luxembourg,
The Netherlands, and Switzerland in 1886. In 1891 an agreement was
reached between the United States and the Government of Her Britan-
nic Majesty for a modus vivendi in relation to fur fisheries in the Bering
Sea, and an international arbitration over the catch of fur seals was
settled between the United States and Great Britain in 1898.3 By 1902
the second International Congress on the Protection of Birds had been
held in Paris, with a focus on birds useful to agriculture.
The International Conference on Protection of African Mammals met
in London in 1900. This was the first international agreement aimed at
preserving wildlife in Africa. The signatories were France, Germany,
Great Britain, Italy, Portugal, and Spain, all then colonial powers. The
1900 Convention was ambitious, although flawed when viewed a cen-
tury later. It considered crocodiles, poisonous snakes, and pythons un-
worthy of protection; in fact, it declared that they should be destroyed
(Lyster 1985) and that herds of lion, leopard, hyena, dog, and certain
birds should be reduced. Its primary goal was to preserve supplies for
trophy hunters and traders and dealers in ivory and skins. According to
the preamble, the convention aimed “to prevent the uncontrolled mas-
sacre and to ensure the conservation of diverse wild animal species in
their African possessions which are useful to man or inoffensive.” Ar-
ticle 2, nonetheless, prohibited the killing of all specimens of species
listed and “all other animals which each local government judges neces-
sary to protect, either because of their usefulness or because of their rar-
ity and danger of disappearance” and the killing of nonadults and fe-
males “when accompanied by their young” of “elephant, rhinoceros,
hippopotamus, zebra other than mountain zebra, buffalo, antelope and
gazelles, ibex and mouse deer.” Some methods of killing, including by
Law Trying to Save the Earth 15
explosives, were outlawed. The convention also encouraged the estab-

lishment of nature reserves.
The Hague Conference on Natural Resources took place in 1906,
and the International Conference for the Protection of Nature was held
in Paris in 1909. In that year the United States and the United Kingdom
entered into the Boundary Waters Treaty, which stated (in article 4) that
water “shall not be polluted on either side to the injury of health or
property on the other side” of the U.S.-Canadian border. Also in North
America, the United States entered a convention with Mexico address-
ing equitable distribution of irrigation waters of the Rio Grande (1907).
The Treaty for the Preservation and Protection of Fur Seals was drafted
in this period, and the Consultative Commission for the International
Protection of Nature was created in 1913. In 1916 attempts at protec-
tion of migratory birds were made in a convention.
The twenties saw the creation of the International Council for Bird
Preservation (1922) and the International Office for the Protection of
Nature (1929). In the thirties several nations entered a convention to
preserve fauna and flora “in their Natural State.” It aimed to promote
the establishment of national parks and natural reserves, to preserve for-
est areas, to control “firing the bush on the borders of forests,” to en-
courage “domestication of wild animals susceptible of economic utilisa-
tion,” to protect species noted in an annex (which included gorilla,
lemur, wolf, antelope, ibex, zebra, rhinoceros, and others), to regulate
the traffic in trophies (including those of ivory and rhinoceros horn, eggs,
and plumage), and to regulate types of hunting, including by airplane or
by use of “dazzling lights, flares, poison, or poisoned weapons.” 4
Migratory birds and game mammal protection were the subjects of a
1936 convention. Four years later the Washington Convention on Na-
ture Protection and Wild Life Preservation in the Western Hemisphere
was made. In 1935 the Roerich Pact was created. It aimed “to preserve
in any time of danger all nationally owned and privately owned immov-
able monuments which form the cultural treasure of peoples.” 5
The first international efforts to address whaling occurred in this pe-
riod; it is surprising from a modern perspective that they did not receive
popular attention. In 1931 the League of Nations adopted a convention
to strengthen efforts to regulate the whale industry. It applied only to
some types of whales, however, although it covered the waters of the
world. The International Agreement for the Regulation of Whaling was
signed in London on 8 June 1937, and an amending protocol was added
the following year, in part, establishing a new sanctuary for baleen
whales.6 Then in 1946 the International Convention on the Regulation

of Whaling was passed, and it entered into force two years later. It
started with a somewhat internally inconsistent and clearly controversy-
producing preamble: “Having decided to conclude a convention to pro-
vide for the proper conservation of whale stocks and thus make possible
the orderly development of the whaling industry . . .”
A treaty on utilization of the waters of rivers shared by the United
States and Mexico was made in Washington in 1944. In 1948 the prede-
cessor to the World Conservation Union was formed as the International
Union for the Conservation of Nature and Natural Resources. In Paris in
1950 the Convention Internationale pour la Protection des Oiseaux was
drafted. Plant protection was the focus of a 1951 convention, and pro-
tection of fisheries of the North Pacific Ocean was the concern of a 1952
convention. Six years later the Geneva Convention addressed more gen-
erally “fishing and conservation of the living resources of the high seas.”
In 1954, in the midst of the Cold War, the International Convention for
the Prevention of Pollution of the Sea by Oil was adopted. In 1958 it was
followed by conventions on the Continental Shelf and on the high seas.
The fifties also saw the making of the Food and Agricultural Organiza-
tion Plant Protection Agreement for South-East Asia and the Pacific Re-
gion in Rome (1956). The Treaty Establishing the European Economic
Community in Rome was entered in 1957, but at its beginning it did not
contain any specific environmental provisions.
Treaty agreements, as I explain below, depend to a large degree on
political links among nations: the cooperative actions promoted by the
1958 Convention for the Conservation of Shrimp between the United
States and Cuba, which entered into force in 1959, were officially termi-
nated two decades later. Despite the political tensions between the two
nations, agreements concerning fisheries off the coasts of the United
States were signed in Washington in 1977, transmitted to Congress, and
entered into force in September of that year. The aim, taking into con-
sideration discussions on the Law of the Sea, was “to establish a com-
mon understanding of the principles and procedures under which
fishing may be conducted by vessels of the Republic of Cuba for the liv-
ing resources over which the United States exercises fishery management
authority as provided by United States law” (article 1).
In 1960 the Black Sea Fishing Convention became effective. The
Antarctic Treaty became international law the next year (1961), and
conservation of Antarctic fauna and flora was the subject of Agreed
Measures of 1964. A liability convention was made in Brussels in 1963.
The Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer

Space, and Under Water entered into force in 1963, in Moscow. That
same year a convention to protect the Rhine River against pollution was
signed.
Dozens of other regional and multinational agreements were made in
the sixties. The subjects ranged from tuna protection (1966) to detergent
use. They included attempts to protect outer space and the moon (1967)
and African natural resources (1968). The need to control oil pollution
of the seas became evident internationally, and the International Con-
vention Relating to Intervention on the High Seas in Cases of Oil Pollu-
tion Casualties was entered in 1969. Its protocol was added in 1973.
Along the way, both existing and new international organizations
adopted policies aimed at regional and global environmental protection.
An example is the World Bank, formerly highly criticized for economic
development policies that were insensitive to environmental impacts. In
1980 the World Bank, along with other development banks, adopted a
declaration aimed at introducing environmental factors into project
consideration. It called for the creation of systematic environmental as-
sessment and evaluation procedures for all development activities and
support for projects that enhanced the environment and the natural re-
source base of developing nations.
INTERNATIONAL ENVIRONMENTAL LAW: A TAXONOMY

Most of those efforts were formal international agreements. Much con-
temporary understanding of international law is associated with written
contracts among nation-states and among states and international or-
ganizations, that is, treaties. The main corpus of international environ-
mental law is treaty based; however, the field also includes customary
law and soft law, which I discuss later in this chapter. The institutions
that make treaty law include world organizations (mainly the United
Nations and multinational organizations such as the European Union)
and nation-states through bilateral and multilateral agreements. Nation-
states and multinational organizations also create customary law. Soft
law is generally understood as emanating from international organiza-
tions. These distinctions, however, are not always clear. There is no con-
stitution of international environmental law, and leading theorists and
states do not speak with one voice or even with the same vocabulary
about custom and soft law. Furthermore, distinctions continue to de-
velop with the proliferation of instruments.7
From Stockholm to Rio de Janeiro and the Next Generation

Early international efforts were relatively uncoordinated. Modern inter-
national environmental law is commonly understood to begin with the
Stockholm United Nations Conference on the Human Environment
(1972), which was proposed by Sweden. At Stockholm 113 countries
participated. (The Soviet Union and Eastern European countries boy-
cotted the effort.) The roots of the Stockholm conference lay in recog-
nition of regional environmental problems affecting northern Europe.
The Scandinavians, particularly the Swedes, supportive of the U.N. since
its formation, saw it as an institution that could help solve the acid-rain
and other international environmental problems (Shabecoff 1996, 32).
The conference issued the Declaration on the Human Environment,
with 26 principles and 109 recommendations. It approved the creation
of a new agency, the United Nations Environment Programme (UNEP),
established soon thereafter in Nairobi. Some of the flurry of inter-
national environmental agreement-making that followed Stockholm
was promoted by UNEP. For example, it fostered treaties on endan-
gered species, regional seas, and marine pollution and dumping. It now
has administrative responsibility for seven major conventions. Other
international environmental instruments were generated through other
institutions.
The first generation of efforts of modern international environmental
law was characterized by articulation of general principles and frame-
works for further action. Treaties generally called for monitoring, re-
search, and exchange of information. A second generation focused on
emissions reduction and technology changes and implementation and
compliance. Compliance might be sought through dispute resolution
and enforcement regimes, innovative economic instruments, or other
forms of incentives. Strategies included providing for central interna-
tional environmental funds, emission trading techniques, and differenti-
ation of responsibilities for rich and poor nations. Edith Brown Weiss
(1992, 11) noted at the culmination of that second generation: “Many of
these agreements were thought to be impossible ten years ago; some were
thought impossible as briefly as two years before they were concluded.”
A third generation of the law began its evolution roughly in the late
nineties.8 In more recent efforts environmental analyses are integrated
into other cooperative efforts of nations, and information about and par-
ticipation in decisions are more widely available to nonofficial actors.
Some modern treaties are global, some regional, and some limited to
a small number of countries. They address the full range of media (air,
water, land), pollution sources (industry, agriculture, municipal waste,
and commerce), threats (exploitation of nuclear energy, disposal of haz-
ardous material), and conservation of species as well as forest and desert
resources. Some treaties focus on certain areas or places (Antarctica, the
wetlands); others aim to organize interstate cooperation in facing envi-
ronmental challenges. Many are framework conventions that articulate
overall principles and objectives that will, if cooperation continues, be
given form and effect in later treaties. Some call for national inventories,
action programs, and reporting mechanisms. Most expect that member
countries will adopt regulations, standards, and limits at the national
level—rather than implementing through supranational authorities.
Momentum created by the Stockholm Convention led to the signing
in 1982 of the long-debated and immensely complex United Nations
Convention on the Law of the Sea (UNCLOS), which entered into force
in 1994. It contains several environment provisions, most of which are
found in part 12. It addresses land-based sources of pollution (article
207), seabed activities within national jurisdiction (article 208), seabed
activities beyond national jurisdiction (articles 145 and 209), dumping
(article 210), vessels (article 211), the atmosphere (article 212), duties to
prevent pollution from use of new technologies and introduction of
alien species, monitoring and environmental assessment, and conserva-
tion and management of marine resources.
The inventory of treaties can be divided among those that are funda-
mentally global or multilateral, where multi connotes many countries
from many regions; those that are multilateral and regional; and those
that are bilateral, or among a small number of nation-states. The tax-
onomy is not precise, however, since global treaties do not include all
nation-states; regions are defined variously, depending on the environ-
mental problem; and bilateral agreements often add additional parties
over time. Table 2.1 lists major treaties of a large regional or global
scope. The list is not exhaustive and grows yearly. Recent foci, for ex-
ample, have been on the elimination of so-called POPs (persistent or-
ganic pollutants, such as DDT, PCBs, aldrin, endrin, and toxaphene), on
efforts to promote safe international trade in genetically modified or-
ganisms (Cartagena, the Biosafety Protocol), and on access to informa-
tion and public participation and environmental justice in environmen-
tal decisions (the Aarhus Convention).
TABLE 2.1. Treaties of the Modern Era of International

Environmental Law1
Convention on Wetlands of International Importance Especially as Waterfowl

Habitat (Ramsar, 2 February 1971) and amendment.
Convention on the Prohibition of the Development, Production, and Stockpiling
of Bacteriological (Biological) and Toxic Weapons, and their Destruction (London,
Washington, Moscow, 10 April 1972)
Convention Concerning the Protection of the World Cultural and Natural Heritage
(Paris, 23 November 1972)
Convention on the Prevention of Marine Pollution by Dumping of Waste and
Other Matter (London, Mexico City, Moscow, Washington, 29 December 1972)
Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES) (Washington, 3 March 1973)
International Convention for the Prevention of Pollution from Ships (MARPOL)
(London, 2 November 1973)
Agreement on the Conservation of Polar Bears (Oslo, 15 November 1973)
Convention on the Protection of the Environment by the Nordic Countries (Stock-
holm, 19 February 1974)
Convention on the Prevention of Marine Pollution from Lead-based Sources (Paris,
4 June 1974)
Convention for the Protection of the Mediterranean Sea Against Pollution
(Barcelona, 16 February 1976)
Convention for the Protection of the Rhine Against Chemical Pollution (Bonn,
3 December 1976)
Convention on the Prohibition of Military or Any Other Hostile Use of Environ-
mental Modification Techniques (Geneva, 18 May 1977)
International Convention for the Prevention of Pollution from Ships, as modified
by the Protocol of 1978 (London, 17 February 1978)2
Amendment to the Convention on the Prevention of Marine Pollution by Dump-
ing of Wastes and Other Matter Concerning Settlement of Disputes (London,
12 October 1978)
Convention on the Conservation of Migratory Species of Wild Animals (Bonn,
23 June 1979)
Convention on the Conservation of European Wildlife and Natural Habitats (Berne,
19 September 1979)
Convention on Long-Range Transboundary Air Pollution (LRTAP) (13 November
1979)
Agreement Governing the Activities of States on the Moon and Other Celestial
Bodies (New York, 18 December 1979)
Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)
(Canberra, 20 May 1980)
Regional Convention for the Conservation of the Red Sea and Gulf of Aden Envi-
ronment (Jeddah, 14 February 1982)
Benelux Convention on Nature Conservation and Landscape Protection and Nat-
ural Resources (Brussels, 8 June 1982)
United Nations Convention on the Law of the Sea (Montego Bay, 10 December
1982)
Convention for the Protection and Development of the Marine Environment of
the Wider Caribbean Region (Cartagena de Indias, 24 March 1983)
Vienna Convention for Protection of the Ozone Layer (1985)
Single European Act (Luxembourg, 17 February 1986)
Convention on Early Notification of a Nuclear Accident (Vienna, 26 September
1986)
Convention on Assistance in the Case of a Nuclear Accident or Radiological Emer-
gency (Vienna, 26 September 1986)
Convention for the Protection of the Natural Resources and Environment of the
South Pacific Region (25 November 1986)
Protocol on Substances That Deplete the Ozone Layer (Montreal, 16 September
1987)
Convention on the Control of Transboundary Movements of Hazardous Wastes
and Their Disposal (Basel, 22 March 1989)
Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific
(23 November 1989)
London Amendments to the Montreal Protocol (29 June 1990)
Protocol on International Convention on Oil Pollution Preparedness Response and
Co-operation (London, 30 November 1990)
Bamako Convention (Bamako, 30 January 1991)
Convention on Environmental Impact Assessment in a Transboundary Context
(Espoo, 25 February 1991)
Environmental Protection of the Antarctic Treaty (Madrid, 4 October 1991) and
Annexes
Convention on the Protection of the Alps (7 November 1991)
Treaty on European Union (Maastricht, 17 February 1992)
Convention on the Transboundary Effects of Industrial Accidents (Helsinki,

17 March 1992)
Convention on the Protection of the Black Sea Against Pollution (Bucharest,
21 April 1992)
United Nations Framework Convention on Climate Change (New York,
9 May 1992)
North American Agreement on Environmental Cooperation (Washington, Ottawa,
Mexico City, September 1993)
Biodiversity Convention (Rio de Janeiro, 29 December 1993)
United Nations Convention to Combat Desertification in Countries Experiencing
Serious Drought and/or Desertification, Particularly in Africa (Paris, 14 October
1994)
Oslo Sulfur Protocol (1994)
Agreement for the Implementation of the Provisions of the United Nations Con-
vention on the Law of the Sea of 10 December 1982 Relating to the Conservation
and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (New
York, 4 December 1995)
Kyoto Protocol to the United Nations Framework Convention on Climate Change
(10 December 1997)
Rotterdam Convention on the Prior Informed Consent Procedure for Certain Haz-
ardous Chemicals and Pesticides in International Trade (10 September 1998)
1 For a more complete list see Sands et al. 1994.

2 Since 1979 the International Maritime Organization has adopted 30 treaties cover-
ing the marine transport of oil. Among the best known is the Convention on the Pre-
vention of Marine Pollution by Dumping of Waste and Other Matters (known as the
London Dumping Convention). At first the convention created a blacklist of materials
and a gray list that was less strict. In 1988 the convention was extended to cover the
ocean incineration of waste. In 1996 a protocol rejected the gray and black list ap-
proach and prohibited the dumping of any waste or other matter unless listed in
annex 1. Dumping of annex-1 materials requires a permit. Annex-1 materials include
dredge materials, sewage sludge, fish wastes, certain vessels, inert material, natural
organics, and some steel, concrete, and iron materials.
To any list of modern treaties addressing evolution of a sector of in-

ternational law must be added the Vienna Conventions on the Law of
Treaties. They govern the meaning of treaties and codify the customary
law on the significance of treaties. Even for countries that have not
ratified them, the Vienna Conventions are generally seen as a source of
binding principles. Because the international personality of some orga-
nizations was recognized by the International Court of Justice there are
in fact two Vienna Conventions on Treaties, one among states (1980)

and another among international organizations or between a state and
an international organization (1986).
The vocabulary of international law varies among nation-states.
Some, such as the United States, distinguish treaties that require the ad-
vice and consent of the Senate 9 from executive agreements in which the
president may bind a nation without the legislature’s consent. The dis-
tinction has itself led to controversy over whether an instrument has ac-
tually been entered. A treaty must be signed and must be ratified. It then
enters into force only for the ratifying parties once instruments of rati-
fication are deposited by the requisite number of countries (although a
few treaties, including some in the environmental arena, specifically ex-
tend some rights to nonparties). According to the Vienna Convention on
the Law of Treaties, no minimum number is required for nations to en-
ter treaties. The Vienna Convention also addresses the grounds for
treaty termination (article 60-62), which include a state of necessity, im-
possibility of performance, a fundamental change in circumstances, a
material breach by a party, and the development of new norms of inter-
national law.
The Ozone Regime

Among the best-known international efforts are those involving the
problem of the degradation of the ozone layer. That situation led first in
1985 to the Vienna Convention for Protection of the Ozone Layer and
soon thereafter, in recognition of the crisis nature of the problem, to the
Montreal Protocol on Substances That Deplete the Ozone Layer (1987).
The protocol, addressed as a case study in Chapter 4, defined the sub-
stances to be controlled, established precise quantitative restrictions on
the use of chlorofluorocarbons (CFCs) and halons, and set a time-scale
for reducing the production and consumption of such substances. It also
defined the trade restrictions applicable to nonparties and gave devel-
oping countries a ten-year grace period for the implementation of the
measure.
The ozone regime marked a major turning point in the consideration
of the world’s environmental problems. It was an implicit recognition
that no nation, “no matter how powerful or isolated, could defend itself
from global environmental threats by exercising its sovereign powers,
even within its own borders.” With some scientific license it was said that
a “puff of CFCs from an aerosol foam can of shaving cream squirted in
Tokyo can contribute to dangers of skin cancer in Chile” (Shabecoff

1996, 114). The treaty was the first to establish cooperation in circum-
stances where it is impossible to determine the contribution of each coun-
try to an environmentally harmful effect (Scovazzi and Treves 1992, 33).
Rio de Janeiro
The next major milestone in modern international environmental law
was the United Nations Conference on Environment and Development
(UNCED) held in Rio de Janeiro in 1992. The so-called Earth Summit
attracted more heads of government than had ever assembled in one
place, 50,000 NGO representatives, and thousands of civil servants.
Through its Declaration on Environment and Development, it affirmed
the Stockholm Declaration and laid out twenty-seven principles to guide
environment and development. It adopted the Convention on Biologi-
cal Diversity, the Framework Convention on Climate Change, and the
Statement of Principle on Forests. It also adopted Agenda 21, itself not
a binding entity but rather a guide to implementation of the conventions
and the articulation of principles of sustainable development. The 800-
page, 40-chapter agenda addressed several themes: a bottom-up ap-
proach to environmental quality that would involve women, indigenous
peoples, and others in a participatory approach to fostering coopera-
tion; the need for open governance and for adequate information; the
need for institutional coordination; and the use of both regulatory and
market mechanisms to reach the goals of “fulfillment of basic needs, im-
proved living standards for all, better protected and managed ecosys-
tems and a safer, more prosperous future” (Preamble, ch. 1). Both envi-
ronmental protection and economic development were to be sought
through an emphasis on sustainability.
Agenda 21 established the United Nations Commission on Sustain-
able Development and the Global Environmental Facility (GEF). GEF
began in 1990 as a three-year pilot program to assist developing coun-
tries with global environmental problems by providing funding for in-
vestments and technical assistance. Global warming, biodiversity, inter-
national waters, and ozone depletion are its foci. Later, the GEF was
designated the interim operational entity for the financial mechanisms
established under the Biodiversity Convention and the Climate Change
Convention and the financing instrument for relevant activities under
Agenda 21.
Agenda 21 articulated priority areas on which UNEP should con-
centrate. One specific objective is further development and implementa-
tion of international environmental law and coordination of functions

arising from an increasing number of international legal agreements
(ch. 38, 22). This goal focused on the possible need to coordinate ac-
tivities of secretariats and to slow their proliferation. “Effective, full and
prompt implementation” of legal commitments was called for. Agenda
21 exhorts states to establish efficient and practical reporting systems
for full and prompt implementation of international law.
Regional, Multilateral, and Bilateral Agreements

Regional and multilateral activity has been common and widespread
during this modern period. The North Atlantic Treaty Organization
(NATO) has sponsored some instruments. Others are more modest in
their number of parties, such as the Helsinki Accord that focused on the
environment and the 1974 Convention on the Protection of the Envi-
ronment that involved Denmark, Finland, Norway, and Sweden.
In 1992 scholars could identify 256 regional environmental instru-
ments. They share many characteristics, but they also differ. Under the
most developed, decisions are made at a supranational level, and the de-
cisions have a binding effect on the national members. Member states
and even citizens of member states may bring actions in a judicial forum
or some other dispute resolution forum to address the action of another
member state. Sanctions or other forms of redress are available if a
member is found in violation, or not in compliance, with the regional re-
quirements. Virtually all regions are represented (Global Environment
Outlook 2000).
The North American Agreement on Environmental Cooperation
(NAAEC, a case study in Chapter 4) committed Canada, Mexico, and the
United States to environmental cooperation to monitor, counter the neg-
ative impacts of, and exploit the positive effects of free trade among
the parties to NAFTA (North American Free Trade Agreement). The
Convention on the Organization for Economic Co-operation and De-
velopment pledged many countries in Europe to do the same. The Con-
vention on Long-Range Transboundary Air Pollution (Geneva, 13 No-
vember 1979) established a framework for cooperation among North
American and European states to control and reduce transboundary pol-
lution and to monitor and evaluate emissions to assess the effectiveness of
earlier agreements. The Convention on the Protection and Use of Trans-
boundary Watercourses and International Lakes (Helsinki, 17 March
1992) under the sponsorship of the Economic Commission for Europe
is a framework treaty that provides that riparian states shall act to elimi-
nate contradictions with the precautionary principle, the polluter-pays

principle, and the principle of consideration for future generations. These
are elements of soft law explained later in this chapter. The Convention
on the Protection of the Environment by the Nordic Countries, which en-
tered into force in October 1976, seeks to prevent environmental harm
from discharges into waterways of the parties and the continental shelf of
the contracting states, and incorporates a general concept of nuisance.
The Association of Southeast Asian Nations Convention on the Con-
servation of Nature would address ecosystem protection and endan-
gered species trade controls. Also in Asia, in March 2001, the seven
nations bordering the South China Sea signed a joint agreement for
regional cooperation to address problems of climate change, overfish-
ing, coastal development, and pollution. Elsewhere nations entered the
Comprehensive Agreement for the Zambezi River Basin to encourage
regional cooperation and to promote sustainable development. The
treaty addresses environmental assessment, management, legislation,
and supporting measures. Under the Declaration of Brasilia, Amazon
Basin countries created two new commissions, one to conserve fauna
and flora and the other to protect indigenous people.
The most advanced regional efforts are those of the European
Union.10 The EU is “unmatched as a manifestation of international law
in both its substantive and procedural content and in bringing a wide
spectrum of the international community into the international legal
process” (Sands 1991, 2523). It has four main institutions. The Com-
mission, based in Brussels, has representatives nominated by their na-
tional governments from each of the member states in varying numbers.
The Council of Ministers is made up of representatives, most commonly
ministers, in the field of interest (e.g., environment). The Parliament is
popularly elected. The Court of Justice, described later in this chapter,
has jurisdiction over European Union matters.
The most common forms of legislation in the European Union are
regulations, which are directly and generally enforceable in member
states, and directives. The latter are binding as to results on each mem-
ber state addressed; however, individual nations can choose the form
and method of implementation (EEC Treaty, article 189). Regulations
are addressed to individuals, member states, and community institu-
tions. Directives, after an act of transposition by national legislatures,
are addressed to member states and, once transposed (or in some special
circumstances even if not in a timely manner transposed) create legal
rights for citizens.
As a follow-up to the Stockholm Conference in October 1972, the

member heads of state or government built environmental policy into the
European Union. Since then, more than 200 items of environmental leg-
islation have been enacted. Before that date there were a few examples of
regulation in the region in what would become known as environmental
law. For example, in 1957 European nations entered the European
Agreement Concerning the International Carriage of Dangerous Goods
by Road, and eleven years later the European Community restricted the
use of certain detergents in washing and cleaning products (1968).
The Single European Act of 1987 built environmental policy into the
Treaty of Rome. The Treaty of the European Union of 1992 enhanced
the union’s authority and allowed majority voting on environmental leg-
islation. It also introduced the concept of sustainable growth respectful
of the environment. The Environmental Action Program, which lays out
the EU’s environmental principles and objectives, was updated and ex-
tended in 1977, 1983, 1987, 1992, and 1998. Implementation of the
Fifth Program for the EU emphasizes coordination in which high envi-
ronmental standards for almost all pollutant emissions, discharges, and
wastes are combined with positive incentives for industry. The Maas-
tricht Treaty, adopted in 1994, spells out a comprehensive agenda for
sustainable, noninflationary growth demonstrative of environmental
values and defined environmental principles in article 130R. These seek
to preserve, protect, and improve environmental quality; to protect
health; to ensure prudent use of natural resources; and to promote in-
ternational measures to address regional and global environmental
problems. Soft law principles, described later in this chapter, are also in-
corporated in article 130R.
EU directives and regulations now number more than 225 and cover
a range of European environmental challenges, including protection of
waters against pollution from agricultural sources, regulation of new
municipal waste plants and municipal waste incineration plants, the
Seveso directives (1 and 2) on the control of major accident hazards in-
volving dangerous substances, noise pollution, conservation of wild
fauna and flora, urban wastewater treatment, bathing water quality, and
environmental impact assessment of public and private projects.
Among the most ambitious regional environmental law initiatives is
the EU’s Eco-Management and Audit Scheme, commonly referred to as
EMAS (Reg. 1836/93 from 29 June 1993). EMAS establishes the legal
basis throughout the European Union for business participation in a
system of environmental management, environmental audits, and dis-
semination of environmental information to the public. The directive

on environmental impact analysis, generally known as EIA, seeks to
promote transparency and public participation in environmentally in-
formed decision making. EIA has been adopted in other regional ar-
rangements, including the NAAEC, the U.N. Economic Commission for
Europe (Aarhus Convention), and the Espo Convention.
The great seas of the world have been an environmentally critical re-
gional focus. In 1973 UNEP’s governing council declared the regional
seas to be an area of special priority. Since then it has sponsored 23 trea-
ties through the Regional Seas Program. The Barcelona Convention of
1976 on the Protection of the Mediterranean Sea Against Pollution was
the first and set a pattern. A framework instrument allows member
states to adopt jointly or all together appropriate measures to prevent,
reduce, and control pollution in general and from various specified
sources. Members also agree to cooperate in monitoring and addressing
critical problems.
The Mediterranean program was followed with more specific proto-
cols: on cooperation for combating pollution by oil and other harmful
substances in cases of emergency (Barcelona, 16 February 1976), on the
protection of the sea against pollution from land-based sources (Athens,
17 May 1980), and on specially protected areas (Geneva, 3 April 1982).
Within the Regional Seas Program, countries have concluded the
South Pacific Resource and Environmental Protection Agreement with
two protocols (dumping and emergency assistance); the Black Sea Envi-
ronmental Programme evolving from the Bucharest Convention (1992)
and the Odessa Protocol 1993 among Bulgaria, Georgia, Romania, the
Russian Federation, Ukraine, and Turkey (another case study in Chap-
ter 4); the Caribbean Regional Seas Convention (protected areas and
considerations for a protocol on land-based sources of marine pollu-
tion); the Kuwait Regional Convention; and those for West and Central
Africa (1981), the Southeast Pacific (1981), the Red Sea and the Gulf of
Aden (1982), the Wider Caribbean Region (1983), East Africa (1985),
and others. Additional regional efforts outside UNEP’s regional pro-
gram address pollution prevention, abatement, and rational manage-
ment of resources of the marine environment. For example, the Con-
vention on the Conservation and Management of Pollock Resources in
the Central Bering Sea (known as the Donut Hole Convention), in force
in December 1995 among the United States, Japan, the Republic of Ko-
rea, Poland, and China, addressed the problem of declining catches of
Aleutian Basin pollock stock. The Agreement on the Conservation of

Small Cetaceans of the Baltic and North Seas (the Ascobans Agreement)
entered into force in 1994, and another agreement on cetaceans, this
one for the Black Sea, the Mediterranean, and the contiguous Atlantic
Ocean, was signed in 1996.
Less ambitiously, but in some cases more effectively, countries have en-
tered into numerous bilateral agreements: the United States and Canada
and the United States and Mexico on the transport of hazardous wastes;
the United States and Canada on the Great Lakes (also on the Niagara
River and on the Arctic); the United States and Mexico on urban air pol-
lution, on the environment at the border (the La Paz Agreement), and on
border environment cooperation and its financing (BECC-NADBANK);
Brazil and Argentina on nuclear accident consultation; Canada and Chile
on trade and environment. There are more than 200 large watercourses
that two (or more) nations share, providing a strong motivation for bi-
lateral and multilateral agreements (Upadhye 2000). These exist world-
wide with varying degrees of impact, from the treaty involving the Ama-
zon Basin among Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru,
Suriname, and Venezuela to those of the Zambezi Basin.
Customary Law
The boundaries of the other sources of international environmental law
are less defined than the written, signed, and ratified treaties. Nonethe-
less, they are recognized by the legal community. The two most important
are customary law and soft law. Informal tacit customs are also recog-
nized by some scholars as a distinct category (Chayes and Chayes 1995).
Those norms and rules that are customarily followed by civilized na-
tions and binding on the states make up customary international law.
Customary international environmental law includes the duty of a state
to warn other states promptly about emergencies of an environmental
nature and environmental damages to which other states may be ex-
posed. The duty to warn was called an elementary consideration of hu-
manity in the 1949 Corfu Channel case involving damage caused to
warships of the United Kingdom by the placing of mines in Albanian
waters.
The point at which a principle achieves the status of customary law is
not always clear. Several principles have widespread but not universal
recognition: the Stockholm Declaration’s principle 21 and principle 2 of
the Rio Declaration regarding state sovereignty over all of a nation’s

natural resources and the responsibility not to cause environmental
degradation, the precautionary principle, the principle of prevention, the
principle of good neighborliness and international cooperation, the prin-
ciple of sustainable development, the polluter-pays principle, and the
principle of common but differentiated responsibility. Certain global and
regional treaties have adopted some of these principles, but only principle
21, principle 2, and the good neighborliness and international coopera-
tion principle are sufficiently recognized and substantive at this time to
create a legal obligation, the violation of which would give rise to a legal
remedy. A few of these and others are considered by some to be soft law
(addressed in the next section) until they are incorporated into an instru-
ment, most likely a framework convention, or in practice become fol-
lowed by the international community.
Some scholars see custom as “the main source of general interna-
tional law” (Pauwelyn 2001, 537); however, there is in fact very little
customary environmental law. Scholars debate how little or how much
in part because the boundaries of the entity are not precise. Those
who see a greater incidence have made a couple of generalizations,
themselves controversial. Some conclude that customary rules can also
apply to countries that are not parties to treaties. For instance, the
behavior of a state that permits its ships to discharge substances at
sea can be evaluated according to the rules of customary international
law even if that state does not belong to the conventions against mar-
itime pollution. Others assert that treaties create “instant customary
international law” (D’Amato 1994). The International Court of Justice,
discussed below, suggests that treaty provisions can become cus-
tom if the number of states that have accepted the treaty is large enough,
if among those states are nations important to the treaty’s goals, and
if the treaty does not allow reservations (Scott and Carr 1996). These
conditions strictly limit the proliferation of custom through treaty
making.
In certain cases, as in the early fur seals arbitration and the yellow-fin
tuna case under the General Agreement on Tariffs and Trade (involving
an effort to ban the import of the fish from countries that used purse
seine nets), attempts to articulate customary law have been rebuffed
on the ground that they were seeking to “apply national laws extra-
territorially.” The attempts might have been more successful if the com-
plainants could have proven the existence of a rule of customary inter-
national law (Sands 1995b, 153).
Some theorists are adamant about the limitations of customary law.

J. Patrick Kelly (2000) has argued that much customary law is not
empirically customary and should be abolished. Critics maintain that
such principles are not procedurally sound. They are said to be aspi-
rational or recommendary and not based on an international commit-
ment necessary to create a natural legal conviction. Such law is often
based only on normative statements of academics and advocates and
is biased toward Western ideology. It is anchored in fundamentally non-
specific, indeed subjective, notions such as implied consent of nations.
It allows powerful actors to avoid customary objectives simply by their
objections: “A theory that applies asserted universal norms to the
majority of humankind without consent, while permitting others to
escape from consensus norms under the persistent objector principle
premised on individual consent, cannot serve as a source of legitimate
norms” (536).
Wirth (1999) notes the irrelevance of the body of theory on the
obligation not to engage in transboundary pollution and of state-
responsibility theory in the case of the 1986 Chernobyl nuclear accident
in the Ukraine, about which the USSR did not inform the world for
72 hours. “Genuine proof of a pattern of actual state practice amount-
ing [to] custom is painstaking and often unrewarding work performed
surprisingly infrequently by international lawyers despite its central doc-
trinal role in the field. . . . the mere repetition of words unsupported by
action does not give rise to custom” (436). Upadhye (2000, 61), chal-
lenging a specific tenant of customary law, asserts flatly that “despite
lofty commentary otherwise,” international law does not forbid a de-
veloping country from exploiting an international watercourse: “Tam-
ing a watercourse is a catalyst for evolutionary societal progress; and it
behooves a developing nation to act consistently with development, not
necessarily with respect for the international environment. The only
constraint is that the development of the watercourse cannot signifi-
cantly damage other nations.” Boyle and Freestone (1999) describe how
attempts to make the defense of “a state of ecological necessity” a part
of customary law have not prevailed.
Customary law plays a limited role in state practice on environmen-
tal issues. As norms of environmental protection continue to make their
way into international relations, however, custom will play a somewhat
more significant role. Civilized nations will behave in a manner consis-
tent with principles that are not yet customary law but that are com-
pelling in their logic and the benefits of their application.
Judicial Contributions
International Courts
International environmental law includes the opinions of international
courts, few in number and with limited authority, but of considerable
interest to those who promote an international legal presence on envi-
ronmental matters. These tribunals include the International Court of
Justice (ICJ), also called the World Court. It is the principal judicial
body of the United Nations, created by the U.N. charter in 1945 and lo-
cated at The Hague. Its fifteen members are elected by the General As-
sembly from candidates nominated by national groups (i.e., groups of
jurists in the Permanent Court of Arbitration). Since 1993 it has had the
Chamber for Environmental Matters, which has seven members. In re-
cent years the ICJ has averaged about 10 cases (rising to 25 in 1999).
Many of its opinions have addressed maritime disputes and the Law of
the Sea.
Cases can be brought before the International Court of Justice by
consensual jurisdiction, by agreement between the disputing parties, or
by agreement to a compromissory clause in a multilateral or bilateral
agreement [Statute of the International Court of Justice, article 36(1)].
Under this provision it is also possible for parties to an environmental
treaty to accept compulsory arbitration or recourse to the ICJ. Under ar-
ticle 36(2) parties to the Statute of the Court can recognize compulsory
jurisdiction on several different types of legal matters including treaty in-
terpretation. The court also can give advisory opinions to the United
Nations General Assembly and the Security Council. These are not bind-
ing, but as with such opinions by courts of other legal systems, in cer-
tain circumstances they can be as influential as a legally binding opin-
ion. Under article 41, the court also can indicate interim measures to
preserve the rights of parties to a dispute.
Other international courts with some environmental caseload are the
Law of the Sea Court, the European Court of Justice, and a few regional
treaties tribunals. Their opinions can contribute to customary law, but
they may have separate and distinct objectives, such as settling individ-
ual idiosyncratic conflicts.
The European Court of Justice (ECJ), also called the Court of Justice
of the European Communities, is composed of judges and advocates-
general who are appointed by member states for terms of six years. A
president of the court is elected from among them. The court sits in a
plenary session, if requested, in actions brought by member states or
European institutions. Otherwise, it sits in chambers and deliberates pri-

vately. Decisions are by majority vote.
The ECJ may clarify the rights and obligations of the European insti-
tutions in relationship to each other and do the same for the member
states in relationship to the European Union. It verifies the compatibil-
ity of secondary legislation with the treaty and with general legal prin-
ciples. It may also behave as an administrative court, a civil court, and
an arbitration court; and it can provide opinions on the compatibility
with the European Community (EC) treaty of planned EU agreements
with other entities. Thus, it takes responsibility in monitoring the valid-
ity of international laws.
In 1988 the Court of First Instance was added to the ECJ. It now has
jurisdiction in actions against measures taken by the European institu-
tions; these may be brought by individuals or entities granted a legal per-
sonality. A large percentage of the court’s caseload involves economic
issues and competition, but it also has addressed human rights and en-
vironmental disputes.
The ECJ’s judgments are published and are binding, and since 1993
the ECJ has had the power to impose penalties on member states that
have failed to comply with a court judgment. Those are enforceable
judgments that require payments to be made and can be implemented by
the member state.11
One of the steps in the development of what is in effect an interna-
tional common law of the environment is opening judicial forums to
parties other than nation-states. Both the EU and the NAFTA countries
allow such access for environmental and other complaints. The EU is
also considering the creation of a public prosecutor, an individual at
the regional level who will be able to bring actions in national courts.
The idea is attractive to some because it avoids problems associated
with the creation of a supranational authority. At the same time it is re-
sponsive to difficulties that can arise when individual states are allowed
to process complaints within their own sovereign territories using rules
that govern standing and other obstacles to effective enforcement. The
idea is to cast a scrutinizing light on the environmental law performance
of a party without greatly sacrificing that party’s sovereignty.
Domestic Courts
Nation-state courts play an important role in the development of inter-
national environmental law in what international lawyers call either
monist or dualist legal systems (Cho 2000-2001). In a monist unified le-

gal order, no separate implementing measures are needed to bring the
international environmental convention into domestic force. If there is
a conflict between the convention and domestic constitutional or statu-
tory obligations, legal norms of hierarchy determine the outcome. In
a dualist system, international law is distinct from domestic law; the
former regulates only conduct among states. Dualist states are legally
bound to a treaty on ratification as a matter of international law. The
treaty is not a part of domestic law, however, and has no internal effect
until passage of domestic legislation incorporates it.
Incorporation can come in one of three ways: (1) domestic legislation
can be amended or extended to take account of a treaty’s obligations,
(2) the treaty can be rewritten and its text formally incorporated into
domestic legislation, or (3) the treaty can be formally incorporated, un-
changed, into domestic legislation. International law and national law
operate in parallel. In dualist states, therefore, national legislatures faced
with a conflict will be required to take steps to harmonize differences.
The position of a treaty in relation to domestic legal norms is a matter
of national law. Nowhere does an international treaty supersede consti-
tutional provisions. In most nations, treaties occupy a status between
constitutional provisions and statutes or are coequal to statutes. In a few
countries, treaties are inferior to domestic statutes and judge-made law.
The evolution of the meaning of treaties may come from domestic
court interpretation of the international law. The Japan Whaling case is
illustrative. That dispute involved an attempt by conservation groups to
force the United States under the Packwood-Magnuson Amendment to
the 1976 Fishery Conservation and Management Act to certify that Ja-
pan was acting to diminish the effectiveness of the International Con-
vention for the Regulation of Whaling. Environmentalists took this ac-
tion despite what the administration considered to be discretionary
authority not to certify under that amendment and an earlier law, the
Pelly Amendment to the Fishermen’s Protective Act of 1967. Beginning
in 1981, Japan had exceeded quotas set in accordance with the Whaling
Convention, and both Japan and the United States understood that the
United States could impose economic sanctions under the amendments
if Japan continued to exceed the quotas. The two countries, however,
entered an executive agreement in 1984 under which Japan accepted
specified harvest limits and pledged to cease commercial whaling by
1988. The Secretary of Commerce for the United States determined that
the short-term continuance of limited whaling by Japan, coupled with
the 1988 discontinuance, would not diminish the effectiveness of the

convention.
In the Japan Whaling opinion the U.S. Supreme Court held that a
doctrine of United States constitutional law, the political question doc-
trine, does not bar judicial resolution of a controversy. A political ques-
tion is one that a court will not decide because of possible encroachment
on powers of other branches of government. The Supreme Court further
concluded that the courts have the authority to construe international
treaties and executive agreements and to interpret congressional legisla-
tion. The challenge to the Secretary’s decision not to certify Japan pre-
sented “a purely legal question of statutory interpretation.” 12
The Concept of Soft Law

The law evolves through international meetings and conferences and
other fora that articulate principles aimed at structuring later actions of
members of the international community. The principles are often called
soft law. They can evolve (and often do, as in the case of the U.N. Dec-
laration on Human Rights) into the hard law of binding agreements or
treaties. Some scholars consider soft law with sufficient nation-state rec-
ognition to be customary law. Van der Mensbrugghe (1990, 16) points
out a hierarchy of nontreaty international law: “those [matters] which
are to be situated in the realm of law although they are but weakly com-
pulsory and largely discretionary (so-called soft law) and those that have
a purely moral or rather political character and do not entail legal com-
mitments even if they too have to be respected bona fide.” Others use
the term “soft law” to describe international attempts to “not simply
ratify existing practice, but to elevate it” (Koh 1997, 2631).
Among principles of international environmental soft law is the pro-
hibition against causing damage to the environment, principle 21 of the
Stockholm Declaration: “States have, in accordance with the Charter of
the United Nations and the principles of international law, the sovereign
right to exploit their own resources pursuant to their own environmen-
tal policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other
States or of areas beyond the limits of national jurisdiction.” This is sim-
ilar to the provision of the World Charter for Nature of the United Na-
tions General Assembly (1982, resolution 37/7): “Activities which are
likely to impose a significant risk to nature shall be preceded by an ex-
haustive examination; their proponents shall demonstrate that expected
benefits outweigh potential damage to nature, and where potential ad-

verse effects are not fully understood, the activities should not proceed.”
More generally, actions likely to cause irreversible damage to the en-
vironment shall be avoided. This precautionary principle is variously
articulated. Slightly different versions are found in the World Charter,
the ozone protection regime, the Treaty on European Union, the Bio-
diversity Convention, the Climate Change Convention, and elsewhere.
The Rio Declaration states in article 15: “Where there are threats of se-
rious or irreversible damage, lack of full scientific certainty shall not be
used as a reason for postponing cost-effective measures to prevent envi-
ronmental degradation.”
Soft law is not necessarily lesser law, or less law, or less useful law.
Sohn (1973) has said of the Stockholm Declaration that despite the lack
of specificity, the overall tone of the document counsels dedication to the
international norm of protection. Nonetheless, the evaluation of the ef-
fectiveness of international environmental law is complicated if one in-
cludes soft law principles. Van der Mensbrugghe (1990, 21), describing
declarations that need to be carried out in good faith and that “certainly
have a legal significance in so far as they announce an action which will
(it is hoped) be cast in legal terms, later and elsewhere, at the appropri-
ate levels,” comes to an important conclusion: “Undoubtedly, the pro-
liferation of instruments of this kind creates a rather confused situation
that impairs the normativity of rules.” I include soft law in Chapter 4’s
assessments but treat it as a separate category where that is possible (i.e.,
where soft law principles are not integrated with hard law requirements
in multilateral environment treaties).
INSTITUTIONAL DEVELOPMENT AS INTERNATIONAL LAW:

ORGANIZATIONS AND REGIMES
The adoption of formal instruments is a major source of international
environmental law. To appreciate international law, however, it is im-
portant to understand the context in which the law evolves and is im-
plemented. Some institutions advocate lawmaking and others imple-
ment law. The law interacts with other institutions and organizations,
or fails to do so.
Political scientists speak of regimes to promote environmental pro-
tection, where “regime” is variously and sometimes imprecisely defined
but usually includes “principles, norms, rules, and decision-making pro-
cedures, around which actor expectations converge in a given issue-
area” (Krusner 1983, as described in D’Anieri 1995). Some scholars add

that the resulting injunctions must be effective and durable (Underdal
1995). However defined, the notion is that international law comes
about from ideas generated in national and international organizations
and is variously effective, depending on the extent to which it is com-
patible with the procedures, norms, and rules of other institutions.
Strategic planning frameworks, for example, such as the United Nations
Plan of Action to Combat Desertification (1977), the World Conference
on Agrarian Reform and Rural Development (1979), and the World
Conservation Strategy (1980), lay groundwork for future treaty consid-
eration. Other entities then make operational international law and at-
tempt to implement it.
Mainly from the development of multilateral environmental agree-
ments (MEAs) has come an innovation in international law, the “au-
tonomous institutional arrangement.” These arrangements develop the
content of regulatory regimes created by international agreements, and
they supervise compliance and implementation. They typically include
a conference of the parties (COP) or meeting of the parties, both with
decision-making powers. Often they have a secretariat and some sub-
sidiary bodies that are expert in the agreement’s functions or goals.
These arrangements, “because of their ad hoc nature, are not intergov-
ernmental organizations (IGOs) in the traditional sense . . . [but] as the
creatures of treaties . . . [they] add up to more than just diplomatic con-
ferences” (Churchill and Ulfstein 2000, 623). The powers of these enti-
ties can include the adoption of amendments without unanimity, as is
the case with the Convention on the International Trade in Endangered
Species (CITES) and a small number of other conventions. Furthermore,
an interpretation of a COP can be legally binding. It could be subsequent
practice by the parties, which, according to the Vienna Convention on
the Law of Treaties, article 31(3)(b), “is an element that may be taken
into account in interpreting the treaty” (641). In a small number of cases
these bodies can also suspend voting rights and suspend or expel mem-
bers. As is the case for the Climate Change Convention, some are inter-
national entities with a legal personality (647).
Numerous other organizations make rules that impact the environ-
ment and interact with the formal lawmaking institutions. Their per-
formance affects law’s influence in the environmental sphere. They in-
clude management organizations such as the International Boundary
and Water Commission between Mexico and the United States and the
Great Lakes Basin Commission between the United States and Canada.
Regional organizations, although not explicitly lawmaking institutions,

can greatly influence the evolution of ideas that may be put into law and
the implementation of existing international law, and they can affect be-
haviors that are the target of law. Among the most notable are the Or-
ganization of Economic Cooperation and Development and the Organi-
zation for Security and Cooperation in Europe.
Since 1948, the International Union for Conservation of Nature, a
group of governments and NGOs, has promoted wise use of the environ-
ment and assumed a major role in promoting adoption of treaties, CITES
among them. The World Bank (or International Bank for Reconstruction
and Development), the Inter-American Development Bank, the Euro-
pean Development Fund, the African Development Bank, the Asia De-
velopment Bank, the Arab Bank for Economic Development in Africa,
and other regional development banks all make loans on projects that can
have extraordinary effects on the environment.
The Global Environment Facility, established as a World Bank pilot
project in 1991, provides funding for implementation of treaties that tar-
get global warming, biodiversity, international waters, and ozone deple-
tion. It is jointly implemented by the World Bank, United Nations Devel-
opment Programme, and UNEP. Views of its record determine not only
approaches to implementing law but also the choice of substantive pro-
visions for future treaties (as in the Global Climate Change debate, ad-
dressed in Chapters 4 and 5). The World Trade Organization (WTO) has
an immense influence on the environment, as do specialized United Na-
tions agencies that implement policies. These latter include the Food and
Agriculture Organization, the United Nations Education, Scientific, and
Cultural Organization, the World Health Organization, and the World
Meterological Organization. These organizations are intervening actors
in the implementation of international environmental law (Young 1993;
D’Anieri 1995). In certain situations, such as with regard to the ozone re-
gime, some have played aggressive roles, in part because in the environ-
mental sphere they are not as closely monitored by nation-states as they
are in regard to national security issues. In some situations, they are more
active than an enabling mandate would suggest (D’Anieri 1995, 160).
COMPLIANCE, IMPLEMENTATION, ENFORCEMENT:

PRINCIPLES AND INSTRUMENTS OF CONTROL AND INFLUENCE
The imprecise boundaries of much of international environmental law
and the lack of consensus on what makes up a regime create challenges
in assessing the effectiveness of this body of law.13 The student of inter-

national law, to appreciate its potential contribution to global environ-
mental protection, needs to understand the meanings of jurisdiction and
of norms and the extent to which they are shared and enforceable in the
international community. Appreciation of alternative ways of promoting
compliance with the law is also essential. Historically each of these sub-
jects has received critical attention but with interpretations that vary, of-
ten considerably.
Jurisdiction
“Jurisdiction” can have many meanings and denote varying degrees of
strength and reach of legal institutions. In environmental affairs there
are numerous examples of initiatives to establish international jurisdic-
tion. At one level the United Nations has jurisdiction on matters of the
environment. For example, Agenda 21 recognizes the General Assembly
as “the supreme policy-making forum that would provide overall guid-
ance to Governments, the United Nations system and relevant treaty
bodies.” As Werksman (1996, xiv) observes, however: “The General As-
sembly’s universal membership and extremely broad mandate has al-
lowed it to take up many issues of global concern. Yet it is constrained
by powers which are limited to making recommendations that are not
binding on its Member States. . . . [It] has had to rely upon subtler stuff,
primarily the sensitivity of Member States to the hortatory character of
its pronouncements, and the publicity that can attend its debates.” Al-
though “subtler stuff” has limitations, persuasion through sound analy-
sis can “make a contribution to the shaping of state behavior and the ad-
vancement of sustainable environmental development objectives at least
as valuable as the design and enforcement of new standards and regula-
tion” (Werksman 1996, xv).
Some treaties create jurisdiction by common agreement, while others
go beyond, providing that the parties need to submit their dispute to
some form of arbitration. Referral of the dispute to the International
Court of Justice or some other court may be mandated. Under the Con-
vention on the Conservation of Antarctic Marine Living Resources ar-
ticle 25, a not atypical range of options exists:
1. If any dispute arises between two or more of the Contracting Parties
concerning the interpretation or application of this Convention,
those Contracting Parties shall consult among themselves with a view
to having the dispute resolved by negotiation, inquiry, mediation,
conciliation, arbitration, judicial settlement or other peaceful means

of their own choice.
2. Any dispute of this character not so resolved shall, with the consent
in each case of all Parties to the dispute, be referred for settlement to
the International Court of Justice or to arbitration; but failure to
reach agreement on reference to the International Court or to arbi-
tration shall not absolve Parties to the dispute from the responsibility
of continuing to seek to resolve it by any of the various peaceful
means referred to in paragraph 1 above.
Under article 287 of the 1982 United Nations Convention on the Law
of the Sea, parties need to confer jurisdiction, by declaration, to one or
more of these four fora: (1) the International Tribunal for the Law of the
Sea in Hamburg, Germany, (2) the International Court of Justice, (3) an
arbitral tribunal, and (4) a special arbitral tribunal. Under the Law of the
Sea system, some disputes require compulsory judicial settlement when
informal and noncompulsory techniques do not achieve a settlement.
Protection and preservation of the marine environment within the ex-
clusive economic zone, freedom of navigation and overflight, and laying
of cables and pipelines are among the controlled subject matter. Other
treaties, such as the Vienna Convention for the Protection of the Ozone
Layer, require submittal to a neutral third party, rather than merely sug-
gesting its possible utility. Finally, parties under certain treaties “may
lodge a complaint with the Security Council of the United Nations,” as
is the case under the Convention on the Prohibition of Military or Any
Other Hostile Use of Environmental Modification Techniques.
Jurisdictional issues also arise across treaty regimes. For example, in
a case involving Australia and New Zealand against Japan regarding
southern bluefin tuna fishing, the arbitral tribunal, in rejecting Japan’s
position that the dispute arose exclusively under one convention, ex-
plained the doctrine of parallelism in international law:
the Tribunal recognizes . . . that it is a commonplace of international
law and State practice for more than one treaty to bear upon a par-
ticular dispute. There is no reason why a given act of a State may not
violate its obligations under more than one treaty. There is frequently
a parallelism of treaties, both in their substantive content and in their
provisions for settlement of disputes arising thereunder. The current
range of international legal obligations benefits from a process of ac-
cretion and cumulation; in the practice of States, the conclusion of an
implementing convention does not necessarily vacate the obligations

imposed by the framework convention upon the parties to the imple-
menting convention.14
In the European Union, a member state has standing to bring another
member state that it alleges has failed to fulfill a treaty obligation before
the European Court of Justice. This power was used, for example, when
France brought proceedings against the United Kingdom for the latter
nation’s enforcement of domestic legislation setting a minimum size for
prawn fisheries. Under the European system, violation, not demon-
strated injury, is sufficient to allow standing.
Under article 169 of the Treaty of Rome (the EEC treaty), the Euro-
pean Commission can bring to the court, as it often has done, a matter
of state noncompliance with a reasoned commission opinion that re-
sponded to a failure to meet a treaty obligation. Article 230 (ex article
173) also establishes jurisdiction. Under it, the ECJ may review the le-
gality of acts adopted jointly by the European Community Council and
the Parliament or by the commission “on the grounds of lack of compe-
tence, infringement of an essential procedural requirement, infringe-
ment of [the] Treaty or of any rule relating to its application, or misuse
of powers.” Actions may be brought by a member state, the council, or
the commission, or “by any natural or legal person” if the specified act
is a “decision addressed to that person or against a decision which, al-
though . . . addressed to another person, is of direct and individual con-
cern to” the former.
Article 177 is another basis for the ECJ to address environmental
issues; under it EU national courts may refer to the ECJ interpretative
questions regarding the EC Treaty and the validity and interpretation
of acts of the EC institutions. This jurisdiction is available if a deci-
sion on the question is necessary to enable the national court to give a
ruling. As Sands (1993, 58) explains, “Preliminary references from na-
tional courts to the ECJ are used when a dispute before the national
courts raises a complex question of EEC law or where the dispute turns
on the EEC point and no appeal lies against the decision of the national
court.”
The Court of First Instance of the EU may hear environmental cases
brought to it under certain provisions of the treaty, including articles
173 and 175. The court is one of limited jurisdiction, however, extend-
ing only to institutions of the community and to certain competition
cases. Review on appeal is to the ECJ.
Article 3 of the 1972 Nordic Environmental Protection Convention

allows any person who is affected or may be affected by a nuisance
caused by “environmentally harmful” activities in another member state
to have the appropriate court or administrative authority of that state
review the permissibility of the challenged activities. This review ex-
tends to questions of compensation and measures to prevent damage.
Although it is unclear to what extent it is being utilized, the 1971 Oil
Pollution Fund Convention, article (2)(2), establishes and endows the
fund with legal personality. This applies to the laws of each party and
gives the fund rights and obligations; it can be a party in proceedings,
both legal and enforcement, before national courts (Sands 1993, 155).
Werksman points to the “absolute centrality of a compulsory adjudi-
catory system to any highly developed body of law” (1996, xvi). Yet he
also recognizes the evolution of newer approaches to enforcement, such
as noncompliance regimes. More subtly, he points out that the existence
of judicial or adjudicatory fora is not necessarily tied to predictability of
the promotion of any one set of norms, such as environmental norms:
“The absence of a single overarching court of appeal in the international
system may allow the institution with the more rigorous dispute settle-
ment procedures to determine the outcome of a particular dispute”
(xvii). Particularly the WTO may pose a significant challenge to realiza-
tion of environmental goals through its dispute settlement procedure for
resolution of conflict between environmental protection and free trade
objectives, a concern returned to in Chapter 5.
The 1968 Brussels Convention on Jurisdiction and Enforcement of
Judgments established rules of jurisdiction for member states (which in-
clude European Union nations), including matters “relating to tort,
delict or quasi-delict.” It conferred jurisdiction on the courts of the na-
tion where the harmful event occurred. In a case involving massive dis-
charges of chloride into the Rhine River in France that caused damage
in the Netherlands, the ECJ interpreted the treaty to mean that an ac-
tion can be brought either at the place where the damage occurred or the
place of the event “giving rise to it.” 15
Norms
Whether potential parties to new instruments share understandings of
their commitments on acceptable performance, behavior, and comport-
ment is the issue of norm existence. There is now a massive and growing
attention in the legal community to norms (Downs et al. 2000; Etzioni
2000; Farkas 1998; McAdams 1997; Mueller 1989; Posner 2000; Rawls
2001; Siegal 1998; Szasz 1992). One’s understanding of the effectiveness

of international environmental law turns in part on a grounding on the
relationship between norms and compliance. Here I consider norms as
precursors to rules of law. “Law seeks to realize that which begins con-
ceptually” (Cameron, Werksman, and Roderick 1996, 29). Others differ.
Some count rules as norms. McAdams (1997, 340) sees norms as “infor-
mal social regularities that individuals feel obligated to follow because of
an internal sense of duty, because of fear of external nonlegal sanctions,
or both.” Law can create, weaken, or strengthen a norm. Jurgielewicz
(1995) argues that regime norms and rules may share the same “legally
significant expectations” as formal rules. Beyond these distinctions lies
the question of whether norms have been expressed with sufficient clar-
ity to be part of a shared communication. The constituent questions
about attempts to articulate norms are: Did the parties come to agree-
ment on what they are pursuing? Were they successful in communicating
that agreement?
Some cases are clearer than others. The behaviors expected of mem-
bers to both the Montreal Protocol and the Basel Convention discussed
in Chapter 4, for example, are matters of general agreement (if not com-
pliance). The expectations of other regimes, however, are much less mat-
ters of consensus. Chapter 38 of Agenda 21 stipulates that “implementa-
tion of Agenda 21 and other conclusions of UNCED shall be . . .
consistent with the principles of universality, democracy, transparency,
cost-effectiveness and accountability.” A U.N. General Assembly resolu-
tion following up on UNCED specifically endorsed the mandate. Soft law
principles such as this and the precautionary principle generate many dif-
ferent understandings of what governments and their peoples must do.
In some contexts the prerequisite conditions are not easily reached.
Regarding the protection of the global commons after principle 21 of
the Stockholm Declaration, there is no widely shared norm on liability
of states for causing harm to the global commons, who represents the
international community, which tribunal can receive claims of this na-
ture and how, what are compensable injuries, who is the beneficiary of
compensation, how to enforce a decision, and the remedies that are
available (Adede 1993, 180).
Enforceable Norms?
Many terms in international law lack precision, often intentionally. If
making domestic law is like making sausage, making international
law is like making a sausage stew. Shabecoff (1996, 142) colorfully
described how “virtually every chapter of Agenda 21 became a combat

zone as countries and blocs of countries sought to insert their own fa-
vored issues and delete any sentence, phrase, or comma deemed con-
trary to their perceived interests. . . . Nation after nation wanted to in-
sert its own pet hobbyhorses into the document [Earth Charter] and by
the end of the prepcomm more than one hundred countries, from Aus-
tralia to Zaire, had submitted language.”
A binding treaty is elusive when norms are not shared. This has been
the case with attempts to protect the forests of the world. Only a vague
compromise was reachable: an agreement to negotiate “Principles on
World Forests,” which might or might not become the basis for a future
convention on forest preservation. The Conservation of Biological Di-
versity in chapter 15 of Agenda 21 offers another illustration. It reads in
part, “Biological resources constitute a capital asset with great potential
for yielding sustainable benefits.” The language allows for a vast range
of positions on what is acceptable exploitation of these resources.
Enforceability is the more difficult because legally trained people try-
ing to protect the interests of their own nations write the instrument’s
terms. More precisely, lawyers may be acting to protect what they per-
ceive to be the interests of what they consider the most important clients
among their domestic agencies. In the United States, the State Depart-
ment and the Department of Commerce weigh more heavily in interna-
tional negotiations than the Environmental Protection Agency. Legally
trained negotiators may wish to avoid implementation of law or they
may have little experience in implementation.
Many of the phrases cobbled together by lawyers and policy analysts
cannot offset behaviors on the ground. Indeed, in some cases it is not at
all clear whose behavior is targeted by the vague, flowery, unfocused
language of the instruments assembled by hundreds of negotiators over
dozens of months in numerous sites. The very use of the phrase “and
other conclusions of the UNCED,” referred to above in chapter 38 of
Agenda 21, raises the issue of implementation. Whatever this refers to,
“transparency” and the string of other policy attributes are necessary.
Implementation of the agenda and of concerns “shall” be consistent
with criteria that are themselves imprecise in a legal document that is
formally nonbinding.
As Koskenniemi (1996, 237) notes: “The parties may not agree on a
procedure for determining what constitutes a ‘refusal to fulfill a treaty
obligation,’ i.e., a formal breach . . . or the alleged violation may concern
a collective interest (environmental or human rights treaties are obvious

examples) but there is no state or body which could claim to represent
that interest,” and treaties contain “aspirational and open-textured lan-
guage” that makes it difficult to determine compliance or breach.
For example, the Convention on the Protection and Use of Trans-
boundary Watercourses and International Lakes states: “To prevent, con-
trol and reduce transboundary impact, the Parties shall develop, adopt,
implement and, as far as possible, render compatible relevant legal, ad-
ministrative, economic, financial and technical measures, in order to en-
sure” several important objectives of the treaty. “As far as possible” is a
vague term in any domestic system. In a world law system room for in-
terpretation is almost infinite. Similarly, article 266 of the 1982 UNCLOS
states that members “shall endeavor to foster favorable economic and le-
gal conditions for the transfer of marine technology for the benefit of all
parties concerned on an equitable basis.” Article 13 of the Association of
Southeast Asian Nations Agreement on the Conservation of Nature and
Natural Resources requires that the contracting parties “shall . . . take all
measures possible in their power to preserve those areas which are of an
exceptional character and are peculiar to their country or the Region as
well as those which constitute the critical habitats of endangered or rare
species.” There are at least two referents here that can generate vastly dif-
ferent conclusions about what is required.
Flexible norms do have some advantages. International law aimed at
protecting fresh water, for example, might more suitably endorse a
vague standard of equitable use over a clearer rule (such as no significant
harm). The former choice increases the likelihood of cooperation among
nations by encouraging negotiation, rather than litigation, and allowing
for changing circumstances (Benvenisti 1996).
International environmental law can involve such complex analyses
that there is no clear predictor of whether an action violates a norm. The
concept of equitable utilization of international rivers offers an example.
A “non-exhaustive” catalogue of the criteria to be employed is part of
article 6.2 of the Draft Articles of the International Law Commission. It
is composed of seven elements, from “(a) geographic, hydrographic,
hydrological, ecological and other factors of a natural character” to
“(g) the availability of alternatives, of corresponding value, to a partic-
ular planned or existing use.” The International Law Association, on the
other hand, in adopting the Helsinki Rules on the Uses of Waters of In-
ternational Rivers in 1966 listed eleven relevant factors and concluded
that assessment should not be limited to these. Enumerating them makes

graphic the gap between existing rhetoric and language that would en-
courage involvement and realization of a workable international norm:
(a) the geography of the basin, including in particular the extent of the
drainage area in the territory of each basin State;
(b) the hydrology of the basin, including in particular the contribution
of water by each basin State;
(c) the climate affecting the basin;
(d) the past utilization of the waters of the basin, including in particular
existing utilization;
(e) the economic and social needs of each basin State;
(f) the population dependent on the waters of the basin in each basin
State;
(g) the comparative costs of alternative means of satisfying the eco-
nomic and social needs of each basin State;
(h) the availability of other resources;
(i) the avoidance of unnecessary waste in the utilization of waters of the
basin;
(j) the practicability of compensation to one or more of the co-basin
States as a means of adjusting conflicts among users;
(k) the degree to which the needs of a basin State may be satisfied, with-
out causing substantial injury to co-basin State. (Fuentes 1997, 338)
Fuentes adds the environmental impact of the use of the river on other
basin states as a relevant factor in establishing equitable utilization
(340).
Do all of these factors need to be assessed in each determination of
what is equitable? If a few are not, might that make for a defense by a
nation-state that has, for example, engaged in unnecessary waste (i) and
has sufficient other water resources (h)? How are the factors to be
weighted when they are internally inconsistent? The rules in fact have
been used only once and even then not for a specific allocation of water
(Beach et al. 2000).
Conversely, absolutist terms are used in international law without
generating confidence that a norm has actually been identified and is

shared. The World Charter for Nature demands that “Nature shall be
respected and its essential processes shall not be impaired.” What is the
value of this phrase in the context of the innumerable meanings within
and across cultures of “respect,” “essential processes,” and “impair”?
To be fair, the charter is viewed as soft law by many, but it has a section
on implementation that requires, among other mandates, that the char-
ter principles “shall be reflected in the law and practice of each State”
(section 14) and that “Military activities damaging to nature shall be
avoided” (section 20). Section 21 states:
States and, to the extent they are able, other public authorities, inter-
national organizations, individuals, groups and corporations shall:
(a) Co-operate in the task of conserving nature through common activ-
ities and other relevant actions, including information exchange and
consultations;
(b) Establish standards for products and manufacturing processes that
may have adverse effects on nature, as well as agreed methodologies
for assessing these effects;
(c) Implement the applicable international legal provisions for the con-
servation of nature and the protection of the environment;
(d) Ensure that activities within their jurisdiction or control do not
cause damage to the natural systems located within other States or
in the areas beyond the limits of national jurisdiction;
(e) Safeguard and conserve nature in areas beyond national jurisdiction.
In arguing for an ecosystem-oriented norm for international environ-

mental law that is based on sustainability, intergenerational equity, and
related principles, Brunnee and Toope (1997, 59) criticize international
lawyers for seeking precise definitions before there are shared under-
standings of fundamental values that an instrument should promote:
“Premature attempts to generate binding legal norms are unlikely to so-
licit adherence.”
It is true that unanimity is not required in some newer environmental
law instruments, making the need to seek a universally accepted norm
less relevant to rule formation and enforcement. Some recent global
environmental treaties have included the use of “streamlined inter-
national rule making” instead of traditional principles of unanimity
(Dunoff 1995). These approaches are, however, experiments and do not

negate the importance of articulating shared norms in international en-
vironmental law, especially when the concern is with the effectiveness of
resulting rules.
Impacts on Sovereignty
It is generally understood that for law to be effective, compliance with
its provisions cannot be voluntary and selective. Yet selective acceptance
is common in international law, found mainly through the process of
reservation. “Reservation” as defined in the Vienna Convention, arti-
cle 2 (1)(d), means “a unilateral statement, however phrased or named,
made by a state when signing, ratifying, accepting, approving or acced-
ing to a treaty, whereby it purports to exclude or to modify the legal ef-
fect of certain provisions of the treaty in their application to that state.”
A reservation, according to article 21 of the convention, “modifies for
the reserving state in its relations with that other party the provisions of
the treaty to which the reservation relates to the extent of the reserva-
tion; and . . . modifies those provisions to the same extent for that other
party in its relations with the reserving state.” 16
Poland, as an example, made a reservation to the 1967 Convention
on Conduct of Fishing Operations in the North Atlantic:
The Government of the Polish People’s Republic does not consider it-
self bound by the provisions of Article 13, which states that any dis-
pute between two or more Contracting Governments in respect of the
interpretation or application of the Convention may, at the request of
any of the parties to the dispute, be submitted to arbitration or placed
before the International Court of Justice for settlement. The Govern-
ment of the Polish People’s Republic states that submitting the dispute
to arbitration as well as placing it before the International Court of
Justice requires the consent of all parties concerned in the dispute in
each individual case.
One blatant attempt to use a reservation involved the 1990 amend-
ments to the CITES. Just before the period for entering reservations was
to expire, the United Kingdom and other nations entered a reservation
that excluded application of an endangered species ban to Hong Kong.
Only through the organized efforts of NGOs was sufficient pressure
brought so that the United Kingdom backed away and allowed the res-
ervation to expire. Interestingly, it was through other elements of inter-
national law that the reservation was derailed: the NGOs had petitioned
for an independent and formal legal opinion about the matter (Sands
1995b, 162).
Sovereignty is clearly compromised under some instruments of inter-
national environmental protection. Nation-states, for instance, may be
empowered to act outside the boundaries of their sovereign territory.
The Brussels Convention on Intervention on the High Seas in Case of Oil
Pollution Casualties, as an example, codifies the right of the coastal state
to act beyond the limits of the territorial seas in cases of major pollution
or threat of pollution caused by maritime casualties.17 The Law of the
Sea Convention has sufficient characteristics of a hard law created, im-
plemented, and enforced by suprasovereign entities that its consider-
ation involved an extraordinarily long period of discussion and contro-
versy. It is “the only example of a global instrument which envisions the
protection of the marine environment from the broadest perspective,
and which at the same time, clarifies the question of the extent of the
coastal states’ authority in the various maritime areas” (Scovazzi and
Treves 1992, 150). The Montreal Protocol also notably limited sover-
eignty; it adopted simplified majority decision making and precluded
reservations.
Perversely from the point of view of international environmental pro-
tection, the worldwide movement toward free trade can compromise na-
tional sovereignty exercised to achieve environmental goals. It does so
by allowing challenges to environmental laws that aim to have impacts
outside the individual nation-state. This applies to both the extraterrito-
rial reach of domestic law and the laws of regions, such as the European
community. In world organizations, the WTO, formerly the General
Agreement on Tariffs and Trade (GATT), allows members to challenge
domestic environmental laws of other nations using the argument that
they create artificial barriers to trade.
Theoretically, free trade challenges are not an insurmountable prob-
lem for environmental law, and some of the newer-generation regimes
have even built environmental protection into trade agreements. To a
modest degree this is true under NAFTA and some other trade institu-
tions described in Chapter 4, but the threat of international trade agree-
ments to environmental law persists. Although worldwide concern with
environmental protection is high, interest in free trade historically is
more powerful globally. Policymakers, politicians, and business people
generally accept the assumption that free trade promotes environmental
protection. Pro-trade commentators assert that liberalized trade creates
wealth, which engenders a greater social interest in environmental qual-

ity and a greater capacity to realize environmental goals. Some argue
that with greater income, developing nations will be able to collect more
taxes and use the increased revenue to fund pollution control measures.
Others state that trade agreements affirmatively promote environmental
policies. The following chapters return to this issue.
The alleged weakness of international courts is one indication that
sovereignty is rarely sacrificed in the international regime. ICJ members,
for example, can withdraw from acceptance of compulsory jurisdiction.
Furthermore, the ICJ is a very slow-moving institution; long periods
pass before cases are heard and judgments reached. When the court does
rule, its opinions may be disappointing to environmentalists, as in its de-
cision over diversion of the Danube River for a hydroelectric dam. There
the court ruled that both Slovakia and Hungary had broken a treaty and
both were “ordered” to negotiate in good faith. The case involved Slo-
vakia’s diversion of 80 percent of the river’s flow to build the dam. The
project threatened extinction of 90 percent of the flora and fauna over
an area of 32,000 acres (Perlez 1999).
Sanctions and Enforcement

In international environmental law examples of enforcement capacity
exist, although generally they are limited. For example, they do not mir-
ror the U.N. Security Council capacity under chapter 7 of the Charter of
Member States to take military action for the maintenance or restora-
tion of international peace and security or the suspension of a party’s
rights or concessions for violation of GATT (now WTO) obligations.
Nonetheless, accretion of enforcement authority has been a quiet but
persistent element in the evolution of global environmental law.
The Law of the Sea treaty has a number of sanctioning options, and
some scholars hold that the powers set forth in article 220 of the con-
vention are now part of customary law (Scovazzi and Treves 1992, 152).
The Straddling Fish Stocks and Highly Migratory Fish Stock Agreement
has innovative compliance and enforcement provisions. It authorizes
officials of parties to board and inspect vessels on high-seas areas cov-
ered by the agreement. It also provides that where there is evidence that
the boarded vessel has violated a fishing organization’s conservation and
management measures, the vessel’s flag state shall investigate and en-
force or authorize the boarding state to take action. In cases of possible
serious violations, the inspectors may remain on board to secure evi-

dence and may even bring the vessel to port.
The Convention on the Conservation and Management of Pollock Re-
serves in the Central Bering Sea has several important compliance provi-
sions. The Donut Hole Convention requires that (1) parties exchange in-
formation on a real-time basis using real-time satellite-fixing transmitters
while fishing in the Bering Sea, (2) vessels of the parties carry an observer,
preferably from a party other than the flag state, and (3) parties utilize en-
forcement provisions embodied in the Fish Stocks Agreement.
Regional organizations such as the European Union have stronger
sanctioning powers, although they too are limited. As we have seen, the
European Commission can enter into infraction proceedings against
member states, and a state can be taken before the Court of Justice if it
does not conform to a reasoned opinion. If the court recognizes that a
member state has failed in its obligations, that state must take the nec-
essary measures to respect the decision of the court. In a typical year the
commission cites a majority of the member states for at least some vio-
lations. They may range from a challenge to the scope of monitoring re-
quired under a directive to a general failure to cooperate. The European
Union also allows NGOs to play an active role in enforcement. In one
year alone (1991) the commission received more than four hundred
complaints concerning noncompliance with environmental obligations,
and on the basis of these NGO efforts it initiated several formal investi-
gations (Sands 1995b, 157).
The European Convention on Human Rights and Fundamental Free-
doms also works under a system of judicial review in which the deci-
sions of the Strasbourg Court are formally binding. The committee of
ministers supervises implementation.
Some international organizations can expel a noncomplying member.
This power has seldom been used. As Koskenniemi (1996, 238) notes:
“Such a dramatic measure . . . may make settlement of the underlying
dispute more difficult.” More common is suspension of a violating
state’s rights or privileges, such as to vote.
There is a small but vigorous movement to create a regime of crimi-
nal sanctions for violation of international environmental law. Some en-
forcement officials have advocated greater United Nations promotion of
criminal justice type interventions, using the World Customs Organiza-
tion and Interpol, the International Criminal Police Organization (Inter-
national Environment Reporter, 4 August 1999, 648). The wisdom of
adopting a criminal sanction strategy in selected contexts is addressed in

Chapter 5.
Identification of who is authorized to act in the interest of pursuing
sanctions is another important issue in assessing the law’s effectiveness.
Internationally, authorization to pursue environmental enforcement ac-
tions is quite circumscribed. Trees do not have standing, rocks do not
have rights, and porpoises lack an international legal personality. Who
will represent the interests of such environmental resources?
Answers vary with regimes, but overall standing is limited inter-
nationally. Koskenniemi (1996, 238) has noted that “reciprocal non-
performance cannot be invoked meaningfully in the context of human-
itarian or human rights treaties, treaties that establish rights in favor of
third states or that are intended for the protection of collective interests
(e.g., environmental treaties).” The Rio Declaration states that effective
access “to judicial and administrative proceedings, including redress
and remedy, shall be provided” (principle 10), but that principle gener-
ally has not been followed. Examples of NGO and private party stand-
ing do exist, such as in the European Union and in the NAAEC. Article
18 of the 1993 Lugano Convention was the first international conven-
tion to lay out rules addressing access to nation-state courts to allow en-
forcement of environmental obligations.
Self-help actions are also available in international environmental
law, as they are in international law generally. These include retorsion,
which involves cutting off economic aid, aimed at injuring the violator
of the international law, and reprisals, such as property expropriation,
normally illegal but acceptable under international norms if in response
to a prior illegal act by another state (Akehurst 1993, 6). Akehurst adds,
however:
The importance of sanctions must not be exaggerated. They are not

the main reason why the law is obeyed in any legal system. People do
not refrain from committing murder because they are afraid of being
punished, but because they have been brought up to regard murder
as unthinkable; habit, conscience, morality, affection and tolerance
play a far more important part than sanctions. Sanctions are effective
only if the law-breaker is in a small minority; if he is not, sanctions
are powerless to secure compliance with the law, as is shown by wide-
spread violation of speed limits. . . . It is unsound to study any legal
system in terms of sanctions. It is better to study law as a body of
rules which are usually obeyed, not to concentrate exclusively on
what happens when the rules are broken. We must not confuse the
pathology of law with law itself. (78)
Young (1979) has gone so far as to argue that arrangements featuring
enforcement as a means of eliciting compliance are not useful in interna-
tional society, and that retaliation risks the breakdown of cooperation.
Compliance
Fundamentally, the goal of any legal institution is to achieve compliance
with a set of norms.18 When the objective of law is so stated, a wide
range of ideas on means of influencing behaviors or achieving social
control comes forward. Enforcement is joined, and in the views of some
theorists even supplanted, by management notions.
Many international negotiations conclude that there are more effec-
tive means of achieving compliance than through the use of strict sanc-
tions and enforcement. Agenda 21 encourages nation-states to create
systems aimed at full implementation. Similarly, the 1993 Lucerne ECE
(Economic Commission for Europe) Ministerial Declaration urges con-
tracting parties to environmental conventions to adopt
noncompliance procedures (NCPs) which (1) aim to avoid complex-
ity; (2) are nonconfrontational and transparent; (3) leave the compe-
tence for making decisions to the determination of the contracting
parties; (4) allow contracting parties to consider what technical and
financial assistance may be required within the context of the specific
agreement; and (5) include a transparent and revealing reporting sys-
tem and procedures as agreed to by the parties. (Handl 1994, 327) 19
Under the Montreal Protocol’s NCP, one or more parties may initiate
a complaint about another party’s compliance; or the noncomplying
party or the protocol’s secretariat may begin the procedure.20 The Im-
plementation Committee then reviews the matter and reports its finding,
including recommendations, if any, to the Meeting of the Parties. The
review by the Implementation Committee seeks to achieve an amicable
settlement respecting the provisions of the protocol. The committee can
recommend the provision of appropriate assistance to the noncomply-
ing party, the issuance of cautions, or the suspension of rights and privi-
leges under the protocol. Where a party’s inability to comply suggests a
general problem, the committee may also recommend “an adjustment of
normative parameters” (Handl 1994, 328).
The primary purpose of the NCP is to help a party come into com-
pliance, rather than to label a state as in default (Handl 1994). This is

part of an effort at continued consensus building that may reflect the
normative weakness of obligations or different levels of normativity
within the regime. NCPs “straddle traditional law-making and law-
enforcement functions.” They are attractive to some international law
scholars because they permit the parties “to take a ‘boutique’ approach
to enforcing normative expectations.”
Conversely, as normative expectations among the parties may extend
beyond and vary from the formally accepted normative structure or
substance of the regime, formal dispute settlement “in accordance
with international law” might entail a denial of the “legal quality” of
these nonformally established normative expectations. In these situa-
tions, NCPs represent a necessary alternative, an internal dispute
settlement process that is more attuned to prevailing normative per-
ceptions. In short, NCPs, or equivalent international reporting and
review mechanisms, are ideally suited to nudge states towards com-
pliance with the very type of “soft” obligations that make up the bulk
of the commitments that were established at Rio. (329)
Both explicitly as parts of NCPs and independent of them, economic
strategies may promote compliance. International environmental law al-
ready includes considerable use of subsidies and trading schemes. Some
environmental policymakers call for more aggressive use of these mech-
anisms. In Chapter 5 I address the potential contribution of taxes, sub-
sidies, civil liability regimes, joint development approaches, direct pay-
ments, and reinterpretation of international property rights.
A loose confederation of experts sometimes grouped as “The Mana-
gerial School” asserts that the level of state compliance with interna-
tional agreements is high, with enforcement playing little or no role in
that result. In the words of Chayes and Chayes, what ensures compli-
ance is not the threat of punishment but “a plastic process of interaction
among the parties concerned in which the effort is to reestablish, in the
microcontext of the particular dispute, the balance of advantage that
brought the agreement into existence” (Downs, Rocke, and Barsoom
1996, 380). Downs and his colleagues elaborate that “the causes of non-
compliance are to be found in (1) the ambiguity and indeterminacy of
treaties, (2) the capacity limitations of states, and (3) uncontrollable so-
cial or economic changes.”
Several others scholars have elaborated on the pioneering under-
standings of Chayes and Chayes; they address the dynamics of an effec-

tive interaction among states. Many emphasize the important role that
evolution of international norms plays in the choice of instruments to
promote compliance. I return to those contributions in Chapter 5 and
describe the conditions under which “management for compliance” is
effective and suggest limitations on achieving law’s goals based mainly
on participation and interaction.
As important as it is, the managerial approach does not tell nearly the
whole story. Some cases exist where intentional, deviant, highly focused
behavior causes environmental damage. As Downs and his colleagues
(1996, 395) note: “Even in the case of environmental regimes, the
source of many of the managerialist examples, enforcement plays a
greater role in successes than one is led to believe and its absence is con-
spicuous in some notable failures.” They mention international fisheries
commissions and the Mediterranean plan, “an embarrassing failure”
(396), and the early failures of international efforts to regulate inten-
tional oil pollution by tankers—prior to the addition of relatively strong
enforcement mechanisms. In the latter case the enforcement approach
was a detention provision, a single day of which can mean $20,000 in
opportunity cost to the noncomplying ship operator. Management may
work much better for “shallow” treaties than for “deeper” treaties that
require specific responses. Handl (1994, 329) recognizes a serious weak-
ness of the NCP approach: “the procedure might become an avenue for
parties to ‘hide the real difficulties they have in performing their obliga-
tions while avoiding judicial or arbitral scrutiny, or more subtle forms
of diplomatic persuasion’” (quoting Koskenniemi 1992).
Some international environmental law also emphasizes compliance
as the ultimate objective by focusing on mediation and other processes
of alternative dispute resolution where punishment and sanctioning are
not relevant. Numerous examples exist in international environmental
law and related trade law: the International Joint Commission of the
Boundary Waters Treaty, the European Commission, the Dispute Settle-
ment Panels of the GATT, the processes to foster conciliation under the
1985 Vienna Convention and the 1982 Biodiversity Convention, the
processes involving complaints by the parties in the NAFTA regime
under NAFTA itself and under the NAAEC and the Implementation
Committee of the Montreal Protocol. These are only the better known
of numerous instruments that adopt mediation or some form of arbitra-
tion to promote the ultimate ends of the international law.
CONCLUSION
For more than a century, nation-states have adopted international envi-
ronmental instruments that aim to have the force of law. They are of var-
ious types: global, multilateral, regional, and bilateral within the treaty
regime; court-made and customary law; and soft law. They vary in the
extent to which they affect national sovereignty and establish jurisdic-
tion. Some law reflects fairly consensual international norms. Other in-
struments are vague about norms to be enforced. Some are weak on
ways to enforce such norms. Certain provisions—strong in articulation
of compliance-promoting requirements—are not fully implemented.
Meaningful sanctions exist in some regimes; for other treaties the sanc-
tions described are quite different from those actually imposed.
The short history of global environmental law hints that its evolution
may be more aggressive than in other areas. “International environ-
mental policy is at the forefront of many progressive developments that
prefigure more general trends in public international law, a relatively
primitive legal system whose limitations in responding to the pressing
demands of globalization are apparent” (Wirth 1999, 927). Several of
those developments explain the extent to which the law has been effec-
tive, a subject to which I return explicitly in Chapter 4.
3. LAW’S TARGETS: WHOSE BEHAVIOR
NEEDS TO BE INFLUENCED?
This chapter describes the sources of environmental degradation world-

wide. It classifies them according to how they manifest themselves
(global, transboundary, within a nation) and how they affect the environ-
ment. The analysis differentiates behaviors as innocent, misfeasant, or
malfeasant. It addresses the extent to which they are amenable to change
through various interventions, including the law. The chapter focuses on
business and commerce, but it also treats the public as a source of envi-
ronmental impact.
Basic changes in the natural systems that define environmental degra-
dation arise from many sources. Major contributors to worldwide envi-
ronmental deterioration are mismanaged economic expansion and high
levels of consumption. Economic growth has taken an ominous toll on
the air, water, soil, plants, animals, and life-supporting microorganisms,
“altering the very chemistry of the planet—significantly shifting, for
example, the natural carbon, sulfur, and nitrogen cycles.” The result has
been alterations in the fundamental flows of planetary chemicals and
energy (Shabecoff 1996, 16). As we shall see, however, wealth in certain
circumstances also promotes environmental protection.
A focus on development and consumption patterns is essential, but
it is not the whole story. The etiology of degradation also lies in massive
and rapid population growth. The decades-old discussion of the relative
contribution to environmental degradation of population and con-
sumption cannot be resolved here, but I will address implications of that
debate for international environmental law’s approaches and potential.
Other elements of the challenge facing international environmental
law involve behavior that is more discreet: hazardous waste abuses in-
cluding illegal trade and disposal or, in more homely examples, the
dumping of waste from cruise ships or the smuggling of ozone-depleting
refrigerants; failure to manage resources in ways that would make them
sufficiently sustainable to avoid global systems changes, such as the
burning of the rain forest to create agricultural land; failure to abide by

ordinary rules of commerce, resulting in nuclear and chemical disasters
such as Chernobyl, Seveso, Vajont, Bhopal, and Union Carbide.
The law aims to right many other wrongs: hunting of the last indi-
viduals of an endangered species (bear, whales, monkeys) to sell their
parts or simply as an end in itself; refusal to label the dangers of pesti-
cides destined for foreign markets; refusal to inform downstream par-
ties of the imminent arrival of toxic effluents; refusal to announce in fac-
tories of multinational companies the risks of working with certain
chemicals; also clear-cutting of regional forests, fishing with banned de-
vices such as long drift nets, refusal to desist from activities (such as tests
of nuclear devices) that create considerable environmental risks across a
land or water boundary.
The challenges that environmental law faces at the international level
fall into several categories that are useful for understanding how envi-
ronmental difficulties arise and devising strategies to confront them. We
can distinguish regional problems from global problems, and we can
differentiate among problems that derive from business behavior and
from the acts of desperate people and from the behavior of the success-
ful and affluent.
Environmental problems manifest themselves in the global commons,
across boundaries, and within regions. Commons problems at the inter-
national level are those that result from overuse of resources that have
no national status as property. Outcomes include ozone depletion, cli-
mate change, destruction of endangered species, and overfishing in
global waters. Transboundary environmental pollution problems cross
nation-state frontiers. These include acid precipitation in one region of
Europe triggered by activities in another (or likewise between the United
States and Canada); despoliation of water systems in the Black Sea ba-
sin, in the Mediterranean, in the Dead Sea, and in the Gulf of Aqaba;
and downstream waterway pollution from human wastes, agricultural
production, and industrial flows. Sometimes regional problems manifest
themselves in a number of nation-states across several different jurisdic-
tional boundaries. Examples are air pollution throughout Europe, haz-
ardous waste dumping in Africa, and pollution of watersheds that serve
several countries. Some problems are hybrids, such as deforestation,
where the initial activity is destruction of a resource in one or a small
number of countries but ultimately the results are regional or global.
The behaviors that law confronts encompass an entire range of social
actors, from the very biggest enterprise to the lone individual. People
Law’s Targets 59
may pollute and degrade as they try to sustain their very existence. They
destroy resources and disrupt environmental systems as they consume
well beyond sustenance levels. They do so also through the way they
govern and serve themselves. Of course, people motivated to behave
with a focus on the environment as a priority are also the source of
environmental stewardship.
MULTINATIONAL CORPORATIONS
There were as of the early nineties approximately 37,000 transnational
corporations worth, collectively, $2 trillion (Fowler 1995). Surely in the
following decade these numbers increased. Large enterprises that do
commerce in many nations (loosely clustered under the term “multi-
national corporation,” or MNC) lead many lists of the targets of inter-
national environmental law. Many people associate these giant, concen-
trated, wealthy entities that engage in business transnationally with
deforestation, oil spills, destruction of species, degradation of the air
and water, and especially with ozone- and oxygen-depleting substances
and greenhouse gas emissions. MNCs often engage on a massive scale in
exploitation of raw materials, resource cultivation, or extraction; man-
ufacturing with nonrenewable resources or the nonsustainable use of
renewable resources; environmentally unsound waste disposal, packag-
ing, and distribution; marketing aimed at creating demand for nonre-
newable or inefficiently renewable resources; and wasteful production.
Modern views about the impact of corporate enterprise on the inter-
national environment vary. There is no question that MNCs have been
responsible for major environmental catastrophes, their new language
of green management and enlightened business practice notwithstand-
ing. They export risk, such as when a transnational or multinational
corporation decides in its production strategy to site dangerous indus-
trial activities in distant locations, for example, to locate chemical pro-
duction involving tetrachlorodibenzoparadioxine in Seveso or methyl
isocyanate in Bhopal (Scovazzi and Treves 1992, 25).
The Corporation as Villain

Indeed, the list of companies associated with the most sensational envi-
ronmental disasters of the last quarter-century reads like an interna-
tional Fortune 500 roster, with names such as DuPont, Exxon, Union
Carbide, and Montedison. In addition to the export of the dirtiest, most
dangerous processes across borders to less environmentally vigilant

countries, MNCs have used river systems as sinks for waste products,
denuded giant areas of forest land, threatened the very existence of an
ocean resource by overfishing, and exploited mineral resources with
little concern for restoration.
The case against MNCs from an environmental perspective has been
made eloquently, if not always convincingly, by several activists. Korten
(1995, 269) concluded:
Standardization and uniformity seem to be almost inevitable out-
comes of a globalized economy dominated by massive globe-span-
ning corporations geared to mass production and marketing in a cul-
turally homogenized world. It is difficult to imagine a civilization
moving more totally toward standardization and uniformity than one
unified by Coca-Cola and MTV. The processes of economic global-
ization are not only spreading mass poverty, environmental devasta-
tion, and social disintegration, they are also weakening our capacity
for constructive social and cultural innovation at a time when such
innovation is needed as never before. As a consequence, we are rap-
idly approaching an evolutionary dead end.
Ralph Nader is no less critical. He cites numerous examples of the
negative effects of MNC-driven trade liberalization. It will “undo vital
health, safety, and environmental protections won by citizen groups
across the globe in recent decades” (Nader 1993, 1). Under global and
regional free-trade systems, corporations will achieve autocratic gover-
nance and further pollute air and water, harmonize environmental stan-
dards downward, and exacerbate health problems at borders. These
free-trade entities worsen a situation in which “large corporations are
already forcing U.S. workers and communities to compete against Dick-
ensian industrialization” (8).
Pearce and Tombs (1998, 49 –50) focus on one sector, the chemical
industry, and in a measured and analytical manner, they identify serious
problems with MNCs:
Given many of the characteristic features of the industry—the sheer
size and scale of many chemicals companies, their dominance in
home markets and the role of many chemicals companies as national
champions, the restricted nature of entry to oligopolistic, science-
technological markets, particular forms of state-industry relation-
ships, the interrelationships between key actors within the largest
Law’s Targets 61
companies on an international scale, the vulnerability of companies

to recessions and in particular to oil prices—it is hardly surprising
that the chemicals industries have a long history of activity bordering
upon the illegal.
They mention specifically “death, injury and ill-health caused to work-
ers and populations through occupational and environmental health
and safety practices and offences,” and they generalize to industries that
interact with the chemical group, concluding that these oil and pharma-
ceutical enterprises are “amongst the most criminogenic.”
Because of the immense power and wealth of the modern multi-
national business enterprise, some question their very ability to behave
responsibly from the point of view of environmental protection. The ar-
gument is that to compete internationally the MNC must locate where
the costs are the lowest, must cut expenditures on health and safety, and
must transport in a manner that emphasizes only internal costs. Fur-
thermore, to influence governments in places where MNCs operate,
standard operating procedures must emphasize trade over the environ-
ment when those two objectives conflict, profit over protection, wait-
and-see over the precautionary principle, voluntary measures over re-
quired and proven pollution control strategies.
When Ford Motor Company’s CEO conceded that sport utility ve-
hicles cause serious environmental problems by contributing more to lo-
cal smog problems and global warming, he also said that the company
would continue to produce them because of their profit margins (New
York Times, 12 May 2000). At the same time, commenting on Ford’s
commitment to seek technological improvements, a market analyst con-
cluded that Wall Street “would tolerate the Company’s emphasis on so-
cial responsibility provided that it did not prove enormously expensive.”
MNCs also have “options space” that provides considerable auton-
omy from national public policy, and that space is created by global pro-
duction, logistics, and marketing systems (Pearson 1987; Nordquist
1995). A transnational entity may perform in an environmentally sensi-
tive way in one country and much less so in another where enforcement
may be weak, infrastructure may be lacking, the workforce may be in-
adequate, or monitoring may be lax or nonexistent (Fowler 1995).
Still others conclude that it is not their opposition to compliance that
impels MNCs to act irresponsibly. Rather, transboundary pollution and
other international environmental damage result from “the disparity of
the rules of different legal orders, each asserting authority to prescribe,
each applying its own laws or its own choice-of-law rules” (Rubin 1994,
12). In this understanding, MNCs may actually desire international en-
vironmental standards, codified in law, both to lessen their liability and
to communicate information as to what is socially acceptable.
MNC decisions about support of or opposition to proposed environ-
mental regulation (and later the manner corporations choose to pro-
mote or to resist even relatively impotent implementation mechanisms)
can have mammoth effects on the environment. Consider, for example,
the histories of packaging law (Golub 1996b), recycling law in general,
and detergent production regulation. Different nation-states have con-
trolled disposal practices of major companies very differently, and the
effects on bodies of water through, for example, eutrophication and on
land through landfill contamination are dramatic.
Positive Behaviors
These assessments differ radically from descriptions of the new environ-
mental or green management that has become the strategy of choice at
some multinationals. They also differ greatly from what many giant cor-
porations say about themselves, sometimes accurately and relatively ob-
jectively, sometimes, as an American judge chided, using “flowery cor-
porate happy-talk” to portray (inaccurately) its environmental record
to shareholders.1 There are numerous examples of innovative multi-
national environmental protection actions. Transnational corporations
generally have better records in regard to environment, health, and
safety concerns than do local or state-owned companies in developing
countries (Fowler 1995). They tend to favor standardization of environ-
mental regulations across nation-states, even if it is at a higher level of
harmonization than some of the rules enforced in individual markets.
UNEP describes environmental advances by several MNCs and notes
they are not “reflected widely in the practices of small and medium-sized
companies that form the backbone of economies in many countries”
(Global Environment Outlook 1997, 3).
UNEP, in collaboration with the International Chamber of Com-
merce, has recognized some companies as leaders in environmental
management. In 2000, they were Aluminium Bahrain, Brazil’s Cellulose
S.A., the Canadian-based International Forest Products Ltd., HiPP of
Germany, BSES in India, Israel’s Nesher-Israel Cement Enterprises, the
Japanese firm Tokyo Electric Power, Altos Hornos de Mexico S.A.,
Law’s Targets 63
Peru’s Cervesur, the Swiss-based Rohner Textile Company, Siam Com-

pressor Industry in Thailand, and the U.K.’s Beacon Press. Although not
all the firms met each of the criteria used to measure environmental per-
formance, they had all introduced cleaner production and more efficient
operating procedures (UNEP 2000a).
In Germany the multinational auto companies have taken a leader-
ship position in pollution control, and green and gold ecolabeling for
efficient energy producers has begun (International Environment Re-
porter, 2 February 2000, 79). Swedish industry’s early leadership in
compressors, based on stringent standards for noise abatement, is well
known, as are Japan’s strict norms for automobile energy usage. The
CEO at Ford was labeled green on his appointment and promised to
have his company at the forefront of environmental protection.
Numerous surveys suggest that multinationals seek to incorporate
environmental concerns as a priority. McKinsey and Company (1994)
noted overwhelming support for environmental protection worldwide
and described how numerous multinationals have adopted environmen-
tal policies and internal audit systems. Senior executives of these com-
panies also have come out in favor of international harmonization of
governmental policies of environmental protection.
MNCs may disseminate environmental ideology. Garcia-Johnson
(2000) points to the U.S.-based chemical industry and its export of a
form of corporate environmental volunteerism called Responsible Care
to Mexico and Brazil. Importing countries may adopt the new approach
in order to be accepted within the world of international trade. There re-
mains the question of whether the program is actually implemented;
nonetheless, at some level a commitment has been made to certain goals
of international environmental policy: sharing of information; adopting
comprehensive health, safety, and environmental management pro-
grams; risk communication; and public monitoring and reporting of
emissions.
MNCs may take these initiatives to gain competitive advantages, to
counter competitive disadvantages, to promote an image that is favor-
able, or to preempt strict environmental controls.
There are cases where private vice is public virtue in the classical po-
litical theory recognition, or as Oye and Maxwell (1995) note, when the
green and the greedy come together. In addition to the ozone-depletion
case developed in the next chapter, they cite several other instances
when profit from a product substitution has led MNCs to accept, if not
hail and promote, environmental controls. A market for unleaded gas
was created by the ban on leaded gas. The manufacture and sale of
higher priced pesticides followed restrictions on DDT use.
Then there are headline-grabbing individual decisions and programs.
Ford Motor Company finances Conservation International’s research in
the Pantanal on the conversion of cattle ranches into private reserves and
on other wildlife management activities (Friedman 1998). Chevron has
joined a partnership with the World Wildlife Fund to protect flora and
fauna around the Kikari oil fields of Papua, New Guinea. Home Depot
announces that it will stop selling products made from wood from areas
that are environmentally sensitive. Unilever, a major purchaser of frozen
fish, helps fund the Marine Stewardship Council. British Petroleum lim-
its its emissions of greenhouse gases, expressing a concern over global
warming not articulated by its major competitors. It later commits to a
voluntary reduction of emissions of these gases to 10 percent below
1990 levels by 2010. Daimler Chrysler drops out of an industry consor-
tium that opposes regulatory restrictions to achieve climate stabiliza-
tion. The Chemical Manufacturers Association in the United States and
the Canadian Chemical Producers Association push Responsible Care,
pledging to make environmental health and safety a priority for all
products and processes (Farha 1990, 394). Toyota, General Motors,
and Honda begin development of a hybrid vehicle to curb emissions of
greenhouse gases (International Environment Reporter, 27 October
1999, 886). Shell International, Suncor Energy Inc., Ontario Power
Generation, Alcan (a Canadian aluminum company), and Pechiney Ca
Frena create a partnership with environmental groups to reduce emis-
sions of greenhouse gases 15 percent below 1990 levels by 2010 (Inter-
national Environment Reporter, 25 October 2000, 831).
Collections of businesses and industry groups can also wield consid-
erable influence on markets that affect environmental quality. Dow
Jones in September 1999 created a new set of indices, the Dow Jones
Sustainability Group Indexes, with a market capital value of $4.3 tril-
lion. The indices allow tracking of industrial and financial performance.
Indices are both global and regional (International Environment Re-
porter, 15 September 1999, 757). Japan may list products linked to
global climate change and greenhouse gas reductions on its commodi-
ties exchange (Aritake 2000). Also, while controversial among environ-
mentalists, some market theorists suggest that the type of environmen-
tal performance reporting that major companies have undertaken can
translate into stockholder and company attention to environmental im-
Law’s Targets 65
provement. Germany leads the world in percentage of major companies

that report annually on their environmental performance (International
Environment Reporter, 15 September 1999, 774).
The potential environmental contribution of the multinational cor-
poration is staggering. A world where hydrogen fuel cells break con-
sumer dependence on fossil fuels or where biodegradable plastics are
produced from organic matter would need fewer environmental legal
controls (Berle, Plant, and Wirth 1999). If the private sector would lead
the way in finding alternatives not only to the internal combustion en-
gine but also to the appeal of the individually owned vehicle, the effects
could be revolutionary. Should a major maquilladora company decide
to dedicate itself to the environmental repair of a border city in Mexico,
its results could easily outpace the underfunded activities of govern-
mental enforcers. There are countless environmentally constructive ac-
tivities the company could choose to do (or be legally required to do):
help fund a treatment plant, promote environmental education, create
foundations with environmental protection goals, and fund local
cleanup projects, all at costs well below those required to meet environ-
mental standards in affected regions from which they must move, such
as Los Angeles. There, even some of the most cooperative manufactur-
ing industries cannot meet air quality requirements. Should MNCs
choose to invest in new clean technologies rather than to continue their
reliance on end-of-pipe strategies, as is their preference in some regions,2
the industrial impact could be substantial, both in a direct manner and
through multiplier effects.
As few as ten international companies could meet the world’s needs
for industrial wood and wood fibers while halting logging of old-growth
forests (Environment News Service, 15 March 2001). McDonald’s
commitment to purchase recycled materials for renovation and con-
struction of new restaurants and to buy millions of dollars of recycled
paper products is an example of forward-looking approaches. So too is
its effort to push its suppliers to provide environmentally friendly prod-
ucts without charging a premium. The company spends $350 million a
year on dining trays, construction materials, paper, and other products
(International Environment Reporter, 2 February 2000, 84). Starbucks
has one fifth of the $10 billion annual coffee sales market and is ex-
panding throughout the world. Its decision to serve shade-grown coffee
has significant environmental implications. Many other sources of cof-
fee beans involve forest clearing, done to produce coffee in the open sun,
which has major negative environmental effects. A tiny innovator,

Green Martin Coffee of Vermont, has seen its market share grow rapidly
because of consumer preferences for organic blends.
GREEN MANAGEMENT AND INTERNATIONAL

ENVIRONMENTAL REGULATION
These examples, cases, and anecdotes do not aggregate to a world of
ever-improving environmental quality with no need for law; however,
multinational corporations are among the major foci of a worldwide in-
terest in environmental management. Sometimes colloquially called
“green management,” the strategy (which can both respond to and in-
fluence environmental law) involves a profusion of activities undertaken
by firms that have effects on the natural environment. Green manage-
ment has several constituent parts. They include a commitment to re-
search and development to create innovative technologies and processes
for use in a company’s own production or as a product for sale, inno-
vations aimed at improving environmental quality in the firm’s relation-
ships with its dependents and subsidiaries, and development of products
that do less environmental harm than others in the same market. Green
management is the set of activities that moves firms to act independently
of existing domestic and international standards for environmental pro-
tection so as to decrease environmental costs or increase benefits from
the company’s actions.
If one believes the rhetoric of green management, the need for inter-
national environmental law is understood quite differently from the
view that the MNC has to be cajoled and coerced to behave in an envi-
ronmentally acceptable manner. Thus it is important to understand how
green management is promoted and to assess its potential critically
within international environmental law. The relationships are not linear
and direct. Incentives to manage with regard to environmental consid-
erations may be internal, may come from the outside, and often are a
combination of both.
Internal incentives derive from conclusions that it is in the firm’s self-
interest to adopt a green strategy. This view was made famous by
Michael Porter’s analyses of the competitive advantages of being a lead-
ing firm in terms of environmental indicators (Porter 1990). Modern
economic theorists predict that market niches will be found, market
shares will be increased or a market will be truly dominated, and costs
associated with the economic waste of actual waste will be minimized.
Law’s Targets 67
Green management also has the potential to improve the firm’s rela-
tionships with government regulators. It can increase both customer and
employee satisfaction. Insurance may be less expensive, especially lia-
bility coverage, and related business world advantages may be reaped.
Externally, among the best-known international initiatives to pro-
mote green management are those of the International Standards Or-
ganization and those of the European Community (the first nongov-
ernmental, the second involving international environmental law). The
International Standards Organization or International Organization
for Standardization (ISO) is a Geneva-based body, composed of about
120 entities. It is the official standard-setting and labeling body recog-
nized by the World Trade Organization and other international agen-
cies. Members are governmental institutions or organizations that have
been incorporated through the public law. ISO’s budget is provided by
corporate members and by governments. Given its makeup, ISO is
sometimes referred to as a quasigovernmental entity, but that is not a
precise term and the organization is not a government, although its pro-
cedures, which include voting by all member countries, resemble gov-
ernmental processes. For example, a draft international standard be-
comes an international standard if 75 percent of the voting members
support it.
The ISO 14000 series is its environmental management element. The
aim of the standards, recommended by a technical committee composed
of industry, government representatives, and some NGOs, is to encour-
age environmental management and to rely on market forces to effect
environmental performance improvement, aided by environmental im-
pact analysis and auditing. Other elements of the 14000 series are prod-
uct life cycle assessment and environmental product labeling. ISO
14000 standards are action-forcing in that they require a firm to do
several things to be certified: articulate an environmental policy, cre-
ate senior management commitment and an organizational structure
and training and implementation systems, and monitor whether the firm
is actually making progress as measured by environmental performance.
Among the requirements under EMAS (the European Union envi-
ronmental management regulation that became effective in 1995) are:
an inventory of environmental impacts of production processes, a writ-
ten corporate environmental policy, a program to track performance
that uses environmental measures, and the audits and other activities of
a full management system. In the European law, a company must meet
these requirements to be certified, and to maintain certification it must
be periodically assessed for compliance by a third party recognized un-

der established criteria.
The Organization for Economic Cooperation and Development has
also considered recommendations for establishing environmental man-
agement programs for its members (International Environment Re-
porter, 2 February 2000). Bilaterally, the United States and Mexican gov-
ernments have recruited companies on both sides of the border to a
“Seven Principles of Environmental Stewardship” program. Cospon-
sored by business, it promotes company strategies to surpass environ-
mental compliance, to invest in pollution prevention systems, to practice
efficient energy use, and to support sustainable development. Adopting
ISO 14000 or another environmental management system is encouraged.
When a country defines environmental standards for products sold
domestically and its standards are more restrictive than those of other
countries, it may be able to limit importation of the regulated items. Ex-
amples include the German Packaging Law, which requires that almost
three fourths of beverages must be sold in a specified type of bottle, and
the Danish ban on marketing liquids in certain types of glass and plas-
tic. After a challenge by competitors, the European Court of Justice up-
held the Danish law, concluding that environmental protection require-
ments can limit the rules of a free market. On the other hand, the
introduction of rigorous standards from an international perspective
can also favor foreign competitors if the domestic industry is not pre-
pared to meet such standards. In response to United States EPA regula-
tions, the U.S. multinational Cummins Engines developed a low emis-
sions diesel engine that allowed it to gain international market position.
In some cases external pressures combine with industry strategy to
create coalitions for international environmental controls. DeSombre
(2000, 10 –11) explains that although industry and environmentalists
rarely have identical goals, nevertheless they both have on their priority
list an interest in subjecting other nations to similar regulations, or to
use her term, “internationalizing environmental regulation.” MNCs
and environmental activists may be more likely to attain their shared
goals by working together. DeSombre points to cases (endangered spe-
cies) where environmentalists were most important for internationaliz-
ing environmental regulations and cases (fisheries) where industry led
the coalition. Thus tuna fisheries joined environmental organizations to
promote worldwide dolphin protection. Environmentalists have also
partnered with MNCs to promote environmental goals in developing
Law’s Targets 69
countries. Sometimes they link with government regulators to assert a

philosophy of “going beyond compliance” with existing law (Garcia-
Johnson 2000, 193). In fact, governments, both domestic and interna-
tional, may refrain from rule making when industry and the environ-
mental community are dramatically at odds.
The predicted markets for green products are staggering in size. The
United States Agency for International Development (USAID) reported
that the market for technology and services to mitigate greenhouse gas
emissions could grow into an amount counted in the trillions.
DuPont is an interesting case of MNCs and international law. In the
eighties, DuPont controlled about 50 percent of the U.S. domestic mar-
ket of CFCs. Globally, DuPont also was a major player, representing
25 percent of the world’s total CFC production. In September 1987 the
Montreal Protocol was signed. The treaty (the subject of a case study in
Chapter 4) might have been seen as a menace for the CFC industry and
for DuPont especially. Instead, in March 1988 DuPont announced that
it would cease production of CFCs. In 1990, while the Montreal Proto-
col was being renegotiated to include a ban on CFCs, DuPont was mak-
ing large investments, twice those of the entire rest of the industry, to de-
velop alternative products. Its strategy as industry leader was to push
regulators to force consumers toward substitute products and thereby to
achieve a competitive advantage.
Another DuPont example is its voluntary emissions inventory for
greenhouse gases. DuPont’s goal is to reduce its emissions by 65 percent
by the year 2010 from the 1990 levels. Fewer than 200 other compa-
nies began climate change measuring and tracking activities early on.
DuPont officials concluded that eventually there would be regulations
(perhaps national, perhaps international) to control the pollutants.
Again the effect on its reputation was a plus, and by taking the lead it
may be able to influence the way government eventually forms its regu-
latory standards (International Environment Reporter, 15 September
1999, 766).
MNCs may also choose to be an early innovator in environmental
management for defensive purposes, to preempt national and interna-
tional efforts to set standards that they oppose or believe they cannot
meet. Concerns of regulators nationally, regionally, and internationally
are lessened if they conclude that companies truly are pursuing environ-
mental protection on their own and are self-regulating. Signing en-
vironmental codes of conduct is one action that a firm can take to
communicate its commitment to environmental quality. Examples are

the CERES (Coalition for Environmentally Responsive Economies)
principles in the United States and the Valdez Society principles in Ja-
pan. They include a commitment to waste reduction, use of renewable
resources if possible, wise use of energy, the appointment of environ-
mental managers and directors, and protection of company whistle-
blowers against retaliation. As of 1997, only 50 companies had adopted
the CERES principles (Stenzel 2000).
There are criticisms of reliance on green management strategies for
international environmental protection. Corporate cultural shifts, de-
spite rhetoric, are difficult to achieve, and there is no reliable evidence
that executive management can develop and sustain a green orientation
(Crane 1997). Some environmentalists complain that environmental
management strategies seek to make the firm’s decisions even less trans-
parent and the relationship between industry and government less open
to NGOs and other groups. Lipschutz (2000 –2001) and Hauselmann
(1996) note that for ISO 14000, ISO’s procedures on consensus and par-
ticipation have not been well followed—“civil society groups” have not
been allowed to attend standards-setting meetings. Some fault the ISO
series for focusing on environmental conformance rather than perform-
ance (Gleckman and Krut 1998) and procedural standards rather than
emissions limits and process changes (Roht-Arriaza 1995). The series is
also criticized for failing to embrace the spirit of democratic interna-
tional decision making and for countering the evolving norm of right-to-
know by viewing environmental information gathered by the firm as
confidential (Gleckman and Krut 1998). ISO standards may also be-
come harmonized at a low level. Most serious, according to critics, is the
legal significance given to ISO standards when higher standards are chal-
lenged under world rules banning technical barriers to trade (discussed
in Chapter 5). Here, again, the result may be harmonization downward.
The immense range of opinion about what are necessary elements of
modern life leads to dramatic differences in assessments of actions to im-
prove and maintain environmental quality. These differences translate to
conclusions about whether a corporate act is a significant environmen-
tal protection measure or just green-marketing camouflage of a process
or product that is fundamentally inconsistent with global environmen-
tal improvements. For some critics the environmental problem associ-
ated with multinational fast-food companies is not only packaging. The
consumptive patterns that McDonald’s meets, indeed fosters, are at the
heart of the concern. The environmental disruptions created by the pro-
Law’s Targets 71
duction of an ever-increasing amount of meat demanded by fast-food

companies may be much more serious than whether the product is de-
livered in a package that will biodegrade in a year or in ten years.
Similarly, although some environmental groups have hailed Dow
Chemical Company’s development of light materials that make cars less
consumptive of fossil fuels or automobile manufacturers’ efforts to pro-
duce vehicles that use alternative fuels or are relatively fuel efficient, oth-
ers take a more skeptical position. It is the very dependence on the auto-
mobile that produces environmental degradation. It creates a need for
more roads and for more open space for greater suburban development.
The products themselves create significant waste streams as vehicles
become accessible to millions, if not billions, more consumers. Other
discreet contributions to environmental initiatives often are viewed dif-
ferently by environmentalists and business. When the government of
Gabon and a French logging company completed agonizing negotia-
tions over land transfers in Gabon’s rich tropical forest, some saw the re-
sult as saving sections of the Lopé Reserve; others concluded that it was
a giveaway of valuable land to the foreign company. The government
could instead have simply enforced its other environmental laws to pro-
tect its remarkable herds of mammals.
Independent of their record to date, multinational corporations can
be viewed as amenable to major environmental contributions. After all,
they are another way in which parts of society organize themselves. If
society becomes concerned or afraid enough, those who are influential
in the global firms can organize to produce products that recycle, that
do not emit toxins, that do not overheat the atmosphere, that are com-
patible with environmental protection worldwide.
DOT COM AND THE INTERNATIONAL ENVIRONMENT

The massive increase in the use of the computer and other high tech-
nologies raises another question about the international environmental
law challenge. What worldwide environmental impacts will the cyber
revolution and its related phenomena have?
Proponents of greater use of electronic and related means for com-
merce point to several promising dynamics. Computer-based business
can lessen energy consumption by limiting the need for physical move-
ment of the buyer. Networks driven by computers can increase the effi-
ciency in use of transportation entities. Now, for example, almost half
of all trips taken by truck are return trips when the vehicle is empty.
Computers can lessen the need for virgin products, and rapidly avail-
able information about inventories can decrease demand for storage
space and decrease spoilage. Ease of modeling can promote control of
harmful emissions. Computers can dramatically increase the flow of
ideas on environmental protection strategies, on new laws and their
potential effectiveness, and on appropriate sustainable technologies.
E-based networks can make for the rapid dissemination and effective use
of environmental management systems. Telecommuting, evaluated one
way, consumes much less energy than working at the office or factory.
A person at home reportedly uses about a third as much energy as an
office worker (Hemminger 2000). In recent years, the proliferation of
e-commerce overall has been accompanied by a slowing of growth in en-
ergy consumption.
To be sure, there is another possible scenario. The work-at-home fig-
ure does not account for the impacts the at-home worker may have in
nonwork ways. The rapidity with which e-commerce allows consump-
tion can accelerate the use of natural resources. Per capita shopping may
increase online. High-technology industries themselves have challenging
environmental problems, including the risks of contamination from the
use of solvents in the production process. Considerable waste accrues
with the rapid obsolescence of computer devices. It is becoming com-
mon now for families to have half a dozen old machines sitting unused
and awaiting disposal. Will the equipment enter landfills and compete
with other waste, will it be dumped in the Third World, or will it be used
in the production of a new generation of machines? The paperless soci-
ety seems far away as word-processing equipment allows for numerous
printed drafts. “Our ignorance about this is deep and profound and our
knowledge superficial and consists mainly of ideology,” concluded
Braden Allenby, an AT&T executive at a symposium on e-commerce
and the environment (Hemminger 2000, 21).
NATIONAL ENTERPRISES
It is not only with the multinational enterprise that international law
concerns itself. Companies doing business exclusively within a nation-
state also affect the global environment. Large multinational companies
may have the potential to do massive environmental harm or good, but
individual companies, even those with small numbers of employees and
with charters in only one country, can also have a considerable effect on
environmental quality. The Harvard Business Review reported that
Law’s Targets 73
while 70 percent of the large companies in Mexico have implemented

some type of environmental management, only one fifth of smaller com-
panies have done so (Champion 1998). For many developing countries,
small companies generate up to 95 percent of economic activity; often
they lack, or claim to lack, resources to behave in an environmentally re-
sponsible manner.
The leading environmental criminal cases of the last several years
often have involved relatively small national companies. Toxic wastes il-
legally disposed of across borders can create serious localized, but bi-
national, environmental problems. Microenterprises such as tanneries
often are macropolluters (Blackman 2000), and small companies may
engage in midnight dumping that creates environmental hot spots across
boundaries. Dumping from vessels flying one national flag can pollute
large regional seas, and independent fishing companies can have signifi-
cant effects because of the technologies they use for their catch. A small
whaling business can disrupt a species in the global commons. Yet an
environmentally sensitive production process adopted in a single border
town (such as a brick maker in Mexico who substitutes a less polluting
fuel like propane for commonly used car tires) can dramatically improve
air quality both at home and in border cities. An innovative company
can create technologies that combat pollution in one district and im-
prove the quality of the air or water across frontiers.
Similarly, the large company without multinational presence, an in-
creasingly rare entity in the global economy, can be motivated to mine,
manufacture, sell, and dispose in ways that are either environmentally
sensitive or profoundly harmful internationally. In some ways, large na-
tional companies are simply another version of the smaller polluters.
The distinction is made here, however, for two reasons. Large compa-
nies have greater potential for creating specialized environmental units
within their corporate structures, which can act as the environmental
control centers of the firm. Second, large companies are potentially more
difficult to influence if such systems are not created. The absence of di-
visions responsible for environmental compliance can make it difficult
to attribute responsibility for performance and to punish and reward the
firm’s various segments.
Classic research found that size may not be a good predictor of envi-
ronmental performance. Larger firms tend to commit more violations of
all types; however, they commit “no more violations per unit size than
do smaller corporations” (Clinard and Yeager 1980, 130). The research
is not definitive, but environmental performance appears to be a func-
tion of factors (economic health, corporate culture) that are independent

of the size of the company.
ROGUES, POOR PEOPLE, THE DESPERATE

One complicating and sensitive consideration for those who seek to im-
prove the environment, or to slow down its destruction, is that signifi-
cant environmental degradation results from actions of the poorest and
least organized human beings. Recognizing that environmental damage
can be correlated with improvement in standard of living creates chal-
lenges in designing legal tools to promote environmental quality. Many
examples of environmentally destructive behavior by the poor are well
known. Settlers, whose labor options are miserably limited, burn eco-
logically important jungles, including rain forests in Indonesia and
Brazil, to clear land for cultivation. Mexican brick makers rely on highly
polluting energy sources to fire their kilns. Tribes people in some Afri-
can nations sacrifice giant mammals to sell them or their parts in illegal
markets for rare and exotic goods. Unemployed people in South Amer-
ica rob from the world’s cultural heritage and archeological resources to
pay for a day’s worth of food. Rural fishermen use techniques that de-
stroy the living resources of a body of water in order to be competitive
in fish markets. American villagers cut precious and rare hardwood trees
and smuggle their lumber to luxury furniture producers.
Like the multinational corporations, however, the poor can be mod-
els of environmentally sensitive behavior. They offer appropriate tech-
nology, ecotourism, and sustainable practices to the larger world audi-
ence. They model how to fish and log. They use clothing materials that
biodegrade. They create habitats based on local conditions rather than
importing life styles that disrupt ecological niches. They recognize what
is a sustainable hunt. They know how to make use of much of what they
gather and catch.
CONSUMPTION AND THE KUZNETS CURVE

Attempts to improve international environmental quality must also ad-
dress the economically well off and the middle class. Consumption pat-
terns create and contribute to major environmental challenges.
The Global Environment Outlook (1997) concluded that if the Chi-
nese population had the same number of cars per person as Americans,
a fifth of China’s arable land would be covered by roads and parking
spaces. It also calculated that if all the billions of people on Earth emu-
Law’s Targets 75
lated the consuming patterns of the advanced industrial nations, “rapid

ecological collapse would be the inescapable sequence.” Almost 80 per-
cent of all marine pollution can be traced back to terrestrial sources.
Agriculture, car traffic, industrial emissions, domestic wastes, and ero-
sion all are major contributors (Biermann 1998, 39). Canada and the
United States rank number one and number two internationally in con-
sumption of energy, with annual use around 220 Btu per person. Within
those countries, however, there are dramatic differences that are related
to life styles, land use patterns, and consumption choices. Alaskans use
1,139,000 Btu annually, but New Yorkers use only 215 Btu per year
(New York Times, 1 November 1998).
Both population and per capita consumption are increasing in most
regions. The Global Environment Outlook (1997, 224) reported that
“the growth in the number of motor vehicles world-wide is among the
factors responsible for continuing high levels of nitrogen oxides emis-
sions despite technological advances in the design of car engines.” The
Asian economic miracle and the sometimes predicted African boom in-
dicate further growth in use of the automobile, primarily vehicles with
an internal combustion engine.
Industrial countries still account for almost two thirds of the total
global emissions of the principal greenhouse gas, carbon dioxide, and the
United States alone is responsible for almost a quarter of those emissions,
though developing countries pose a major potential problem. Within two
decades, carbon dioxide emissions in developing countries are predicted
to exceed those of industrialized countries. China could emit within the
century more greenhouse gases than the entire world does today (Bodan-
sky 1997a). Thus population size and shifts in regional resource use can
negate many of the regulatory victories that come from environmental
law control.
The worldwide duplication of the consumer patterns of the upper-
income suburban American could have dramatic environmental im-
pacts: a utility vehicle that averages 12 miles of travel per gallon of fuel,
another one to two automobiles, two refrigerators, a tenth acre of land
with a heavily irrigated and treated lawn, a garbage disposal, central
heating and air conditioning for a 2,400-square foot wood and stucco
home, perhaps a power boat, a golf cart, a dishwasher, a trash com-
pactor, two to three computers with printers, washers and dryers, a
Jacuzzi or swimming pool, furniture built from hardwoods like ma-
hogany, overhead fans to blow rising heat back down in rooms built
with mansion-style high ceilings.
In addressing the role of law when both the poor and the better off
are sources of global environmental degradation, it is interesting to con-

sider theorized relationships between economic growth and environ-
mental quality. Some studies have shown that although pollution in-
creases in the early stages of industrialization, once income reaches a
certain level pollution levels fall. Put another way, as incomes rise, so too
does the quality of the environment. Graphing pollution against income
produces an inverted U, in this context known as an environmental
Kuznets curve, or EKC (Spengler 2001).3 The conclusion for some, in-
cluding strong free trade advocates, is that environmental problems are
self-correcting with economic growth.
If the curve is an accurate description of a dynamic that applies world-
wide, the implications are significant for the types of international law
promoted. Perhaps, for example, this relationship would favor trade lib-
eralization over the negotiation of multilateral environmental agree-
ments, or perhaps those multilateral agreements should emphasize eco-
nomic incentives and subsidies over other compliance-promoting
mechanisms. Interpretation of Kuznets curves, however, is a matter of
considerable disagreement (Arrow et al. 1995). Some analysts conclude
that the turning of the curve is not automatic but rather results from po-
litical and social will, which exerts pressure on institutions, usually dem-
ocratic institutions, to undertake environmental policy improvements.
According to a 1999 report by the World Trade Organization, the
EKC hypothesis “may be valid for some types of environmental indica-
tors, but equally untrue for other important indicators” (WTO Secre-
tariat 1999, 6). The inverted U patterns are seen for some air pollutants
such as sulfur dioxide and some types of freshwater pollutants such as
arsenic but not for pollutants of a more global nature, including carbon
dioxide (Charnovitz 2000). Thus, the “existence of an eventual turning
point depends almost entirely on the type of emission reviewed” (WTO
Secretariat 1999, 53). There may be more than one turning point and
very differently shaped curves, and some changes come at very high in-
comes. For certain emissions such as heavy metals and inert toxic com-
pounds, the turn may come too late because “the cumulative harm in-
flicted during the transition up to the peak of the EKC may exceed the
ecosystem’s carrying capacity and may even be irreparable” (58), sug-
gesting the need to apply the precautionary principle.
The WTO reached other important conclusions. Overall economic
growth does not necessarily bring down pollution. Rather, active inter-
vention by governments is needed to promote environmental quality,
and democratic decision making tends to favor such intervention. Pol-
Law’s Targets 77
lution reduction requires increased income to be followed by tighter en-

vironmental standards. In one interpretation, less hydraulic than earlier
economically driven views, “governments promulgate regulations not
because countries are richer but because citizens demand that regulators
act” (Charnovitz 2000, 534).
Beyond the overall aggregate effects of increasingly large numbers of
consumers are the environmental effects of certain discrete actions.
Some are linked to cultural and religious practices. In India, believers
put human corpses into the Ganges because it is thought to be a holy
place. Some cultures use gall bladders of protected bears as aphrodisi-
acs. Pills made from tiger parts are treasured by some, because the pe-
nis bone is believed to promote virility and relieve rheumatism. Else-
where, turtle eggs are coveted as a delicacy and also for supposed
aphrodisiac powers. In 1997 in the Mexican state of Oaxaca, govern-
ment officials seized a truckload of 300,000 turtle eggs. The poignancy
of the legal struggle for environmental protection was captured in a re-
port describing Mexican officials’ attempts to stop illegal poaching of
eggs of an endangered turtle. “Before finding the intact nest that moon-
lit night, Valdarez [an enforcement officer] had come across two others
that poachers had visited first. They had scooped up the eggs as the
mother had laid them, two by two, before she carefully covered up the
empty nest and lumbered back into the ocean” (Kraul 1997). In some
nations, whale meat is a gourmet item and whaling represents a histor-
ically significant tradition. For certain tribes, whaling is a spiritual act
and defines members as a people (Philbrick 2000). Others covet feath-
ers, serpents, tusks, and rare birds.
Industrialized Western food consumption patterns also create major
resource problems. The environmental strains caused by daily meat-
based diets are well documented, but tastes for specialty foods also can
cause serious damage. Caviar consumption, 44 tons annually in Ger-
many, for example, may lead to the disappearance of sturgeon from the
Caspian Sea. Tragically, fish that do not produce the delicacy eggs are
sacrificed in the caviar search. To obtain females, fishermen kill males in
equal numbers because it is difficult to distinguish the sex of the fish
(Tagliabue 2000).
Some of these habits can be tolerated, judging from one indicator of
environmental health, the absence of systems breakdown. Some are
more serious, based on many indicators, including species loss.
Debates on the issue of consumption were central at the Rio Confer-
ence. The United States (almost alone) opposed language about global
consumption patterns. In finally deciding to attend the summit, then-

president George Bush warned that the American life style was not
negotiable.
Should consumption patterns that have major negative environmen-
tal effects be against the law, including international law? Forms of
global environmental agreements that focus on attempts to alter stan-
dards of living face formidable political opposition, yet many activists
maintain that international law of the environment must address pollu-
tion and natural resource depletion aggressively. Others conclude reluc-
tantly that the challenge is one best put aside: reductions in consump-
tion patterns are the least likely phenomena to be successfully targeted
by law. Still others say that focusing on some forms of consumption is
legal colonialism. The whale, for example, is said to be “the poster child
of our politically correct age” (Philbrick 2000, 6).
If consumption patterns that allegedly despoil the environment are to
be an international legal focus, nations need to agree on the criteria for
choosing subjects. Whether actions are targeted because of the nature of
their environmental impact, as opposed to, for example, their ease of
regulation, is a question of equity. Major elements of the air pollution in
Los Angeles come from the private automobile. Many commuters drive
alone 10 to 15 miles to work and back each day. That threatens the lung
capacity of children of the area and, according to the regional Air Qual-
ity Management District, prematurely kills 1,600 people annually. It
also affects environmental conditions across boundaries. The driving
occurs side by side with now closed factories, the stationary sources that
once were more concentrated and targetable sources of pollution whose
activities were made illegal. Many of those sources provided employ-
ment to lower-income residents in the region. Along the same lines, con-
sider attempts to regulate pleasure boats in the Mediterranean and the
other great seas. Should rules against their disposal of wastes be more
strictly enforced, as opposed to focusing legal resources on stationary
sources that provide employment?
GOVERNMENTS
Ironically, nations that make policy and law to promote global environ-
mental quality also often are a major source of international environ-
mental challenges. National governments destroy the international en-
vironment in many ways. They undertake regionally or globally
destructive military tests. They engage in environmentally devastating
Law’s Targets 79
wars. They fail to warn of incidents that have serious transboundary en-
vironmental and environmental health effects. They aggressively pursue
policies that favor nonsustainable energy use, exploiting resources for
short-term economic gain. Through their export credit agencies, they
promote investments in developing countries that increase air polluting
emissions (World Resources Institute 2000).4 They support commercial
activities at home that have insidious long-term effects on resources and
people across national lines, destroying seas or countrysides.
Governments fail to act in situations in which the linkages to environ-
mental degradation are less direct, such as in setting transportation fees
for recycling, establishing energy taxes on various fuel sources, and re-
moving subsidies for forms of nonsustainable development. They refuse
to enforce their own environmental law. They ignore assessments of en-
vironmental impacts of major public works and private development
actions. They place ill-informed cultural clichés over rational analysis
of consumer behaviors that destroy species. They allow transboundary
movements of dangerous and risky materials to places that cannot pro-
cess the received hazards and toxics. They allow their flags to fly on com-
mercial vessels that disgorge polluting emissions into the land and water.
They permit uses on fragile lands that cannot be sustained. Finally, they
take positions in international fora that favor destructive activity in nat-
ural resource or wildlife sectors over more environmentally protective
positions.
It must be noted, however, that governments also can be the major
source of environmental protection. They pass domestic environmental
laws, of course, and that is fundamental. They have almost limitless po-
tential for environmentally protective programs. Take some examples:
Germany contemplates an electronics recycling ordinance for the col-
lection of old appliances and the dismantling and reuse of components.
That country alone has 2 million tons of discarded electronic products a
year (International Environment Reporter, 4 March 1998). It also pro-
poses proliferation of environmentally acceptable technology in its an-
nual (more than $40 billion) investment program (Schmitt-Roschmann
2000). European cities, this time led by Italy, develop an approach to car-
sharing to stem the high use of second vehicles among households (Inter-
national Environment Reporter, 27 October 1999, 889). National gov-
ernments create certification programs, such as Switzerland’s for wood
products from sustainable forests, that encourage use of environmentally
sensitive commercial and consumer products (International Environ-
ment Reporter, 15 September, 761). In the United States, New Jersey
leads a group of state and local governments in an effort to coordinate

climate change policies with programs that include buying properties in
sensitive floodplains (Johnson 2000). The European Union regulates la-
bel criteria for products ranging from footware to refrigerators and wash-
ing machines (International Environment Reporter, 2 February 2000,
79). The Scandinavian countries fund environmental mitigation activities
well outside their borders. Nations establish substantial prizes for envi-
ronmental leadership. States and regions put high priorities on cultural
and world heritage preservation.
Governments can promote ecotourism. Travel to natural areas can be
part of the environmental education of foreigners and at the same time
generate revenues for national environmental protection projects. Eco-
tourism can include trips to areas of special ecological significance that
increase appreciation of sustainable practices of the area and its local
peoples. The Annapurna mountain range in Nepal (part of the King Ma-
hendra Trust for Nature Conservation), the Masai Mara Reserve in
Kenya, and Costa Rica’s Monteverde Cloud Forest Reserve are all eco-
tourist attractions. To be sure, ecotourism can also open up significant
resources to degradation as the numbers of the environmentally curious
surpass a nation’s ability to protect a site or ecological systems or sub-
systems are damaged by overzealous tourists. Breeding patterns can be
disrupted, coral reefs overwhelmed, river systems polluted.
Governments, alone or with other governments and trade organiza-
tions, can establish certification programs that characterize products or
processes as less damaging to the environment or even environmentally
friendly. These programs are created for individual foodstuffs, such as or-
ganically grown coffee, or for whole industry sectors, where regulation
through conventional international laws and regimes has been limited.
Government is involved in new forms of global regulation of for-
estry practices, including public agreements and conventions (Lipschutz
2000 –2001). These are primarily interstate and intergovernmental and
seek harmonization of standards. An example is the Kyoto Protocol; its
signatory countries may establish terms and conditions to meet its pro-
visions regarding management of forests and their role as carbon sinks.
The U.N. International Tropical Timber Organization has committed to
have all tropical timber that enters international markets come from
sources that promote sustainable management (International Environ-
ment Reporter, 22 November 2000, 910).
Sustainable forestry regulation has moved toward certification of na-
tional as well as private practices through ecolabeling. For example, the
Law’s Targets 81
Forest Stewardship Council (FSC) does third-party independent labeling

and auditing. It also has adopted global “Principles and Criteria” for
forest management, and it accredits organizations that agree to abide by
them. FSC aims to monitor the operations and portfolios of certifying
groups. Fourteen countries have created regional or national processes
to provide more detailed standards for these principles. Though actual
ecological and social outcomes of the FSC system are not yet clear (Lip-
schutz 2000 –2001), the potential for real improvement is very high.
FSC certification requires a company to undertake comprehensive in-
ventories of trees to be cut; to employ technologies that move lumber
with minimal damage to soil, water, and biodiversity; and to prove that
a forest, once cut, can recover. The World Wildlife Fund has estimated
that the amount of acreage certified will increase dramatically in the
next several years (Kopp 2000).
CONCLUSION
An effective international environmental law recognizes the myriad
sources of environmental degradation, from the poor rural villager to the
multinational corporate entity. It reflects an understanding of the relative
seriousness of impacts. It understands how behaviors manifest them-
selves, across borders, multinationally, regionally, and globally. It also
creates incentives for beneficial environmental behavior of people and
groups, exploiting the models they have created. It does so while priori-
tizing environmental harm within other public policy concerns, including
recognition of cultural diversity, deep poverty, and social welfare.
4. AN ACCOUNTING: SUCCESSES AND FAILURES
IN INTERNATIONAL ENVIRONMENTAL LAW
This chapter presents several overall assessments of the contribution of

international environmental law. It first lays out the complexities of un-
dertaking global evaluations. After summarizing the negative and posi-
tive evaluations, the chapter then takes a closer look at five case stud-
ies. It closes with a description of a set of characteristics linked to effec-
tive law.
International environmental law contains a broad range of instru-
ments. Assessing it is complex not only because of its scope but also
because of distinctions among the instruments. Some instruments aim
at most to be policy prescriptions without the same referents as hard
law provisions, which generally are clear and substantive about what
is required. Some are frameworks, articulating broad principles that
will guide future international legal considerations. Many are hybrids
with characteristics of framework development, policy promotion, and
hard law.
Assessment is also complicated by the varying criteria used to define
success and the seriously inadequate data and institutions for generating
better data. The Global Environment Outlook 2000 (xvii) found
The monitoring and data collection infrastructure of most develop-
ing countries is severely handicapped or non-existent due to limita-
tions in resources, personnel and equipment. Constraints are also
faced by international organizations. Keeping well-trained personnel
in publicly funded institutions is difficult. In some cases, there is no
organization mandated to collect and report time-series data interna-
tionally on specific issues on a regular basis. . . . Data are reported for
different geographical areas by different agencies and organizations.
As a result, it may be impossible to use and compare otherwise valu-
able aggregated datasets in global and regional assessments [and] . . .
the data management infrastructure of many countries is weak and
data reporting is fragmented.
An Accounting 83
Nonetheless, evaluations can be made. At the millennium, many ob-

servers, including several leading international law experts, concluded
that the great inventory of treaties, conventions, international tribunal
decisions, custom, agreements, soft law principles, and other instruments
aggregate in substance to less than the sum of the parts, and the sum itself
is disturbingly inadequate. As we shall see, however, this general conclu-
sion masks several elements of a history of success in some areas.
NEGATIVE ASSESSMENTS
It is common to reach conclusions about this body of law that point to
its weaknesses, its lacunae, its failures. Koskenniemi (1996, 236) illus-
trated the tendency:
the massive increase in international legislation during the last quar-

ter of a century, particularly in the environmental field has not cre-
ated a new world order. In fact, the gap between law in books and
how states act may now appear wider than at any other time in his-
tory—the more rules there are, the more occasion there is to break
them. After years of active standard-setting, global and regional
organizations stand somewhat baffled in front of a reality that has
sometimes little in common with the objectives expressed in the
inflated language of their major conventions and declarations.
Koskenniemi’s view has been characterized as approaching the “ni-

hilistic.” He believes that most international environmental law bears a
“minimal relationship with general international law.” Furthermore,
dispute settlement clauses are more a reflection “of ritual than any real-
istic belief that compliance problems should, or could, be dealt with
through the doctrines of fault and attributability which characterize the
legal doctrine of state responsibility” (1996, 247). Worse yet, even if
compliance was achieved, the compliance is with law that cannot solve
the problem that it putatively addresses. The Italian international
scholar Gaja agrees (1998).
Pallemaerts (in Sands 1993, 18 –19) is also highly critical, claiming
that international environmental law has been regressive. He attempts
to show how the concept and ideology of “sustainable development”
undermines the autonomy of environmental law as a body of rules and
standards created to prevent environmentally destructive activity. There
may even be reason to fear that the Rio meeting was the beginning of
the decline of international environmental law as a separate branch of
international law. Pallemaerts worries that international environmental

law could become a mere appendage of international development law.
It would then be subordinated to economic considerations.
Nespor (2001) argues that international law has wrongly responded
to the desires of Western environmentalists. In doing so, it has sacrificed
work on solvable pressing and real environmental problems in the Third
World, the poor and developing countries, to focus on speculative global
disasters that could affect future generations. Meyer and his colleagues
(1997, 647) conclude that the “environmental sector,” which includes
law, “is clearly ineffective in comparison to the rapidly expanding claims
on it.”
Susskind (1994a, 16), in a treatise seeking a new approach to nego-
tiating environmental agreements, maintains that knowledgeable ob-
servers agree that the most notable global treaties have failed to reverse
environmental deterioration. Those who look to reform international en-
vironmental law will “see glaring weaknesses: the rules are very sketchy;
no one is really in charge; much of the negotiation process is ad hoc and
unregulated; there is no central authority to manage the process or com-
pel compliance; and the dispute resolution mechanisms available through
the International Court of Justice are not definitive” (29). Hurrell and
Kingsbury (1992) similarly conclude that the majority of international
environmental agreements they studied had not substantially improved
environmental conditions.
The Environmental Law Network International (1999, 2) is pessimis-
tic: the law often is worded in “vague and cautious” terms, raising the
question of the extent to which the international enterprise is only “sym-
bolic legislation . . . without . . . creating binding rules with teeth capable
of setting concrete and precise standards of environmental behaviour
and conduct.” Biermann (1998, 46) characterizes the legal and policy
framework for the management of global marine pollution as insuffi-
cient, “a patch work approach” that lacks significant coordination and
sufficient cooperation between the northern and southern hemispheres.
Handl (1994, 305 –306) first acknowledges that the U.N. Conference
on Environment and Development (UNCED):
has had a tremendous impact in terms of raising global environmen-
tal consciousness, setting in motion or accelerating the search for so-
lutions to global environmental problems, and refocusing attention
on the necessity for a more equitable distribution of resources among
nations. It has helped narrow . . . the gap between the concepts of en-
An Accounting 85
vironment and development and has made a major contribution

to . . . empowerment of nonstate actors.
But he concludes that “a careful analysis provides a much less reassur-
ing picture,” pointing to weaknesses in the Climate Change Convention,
polarization over issues at sessions of the U.N. Conference on Straddling
Stocks and Highly Migratory Fish, and problems in movement toward
a global forest convention.
Sands (1995a, 143–148) concludes that mechanisms for improving
compliance are underutilized and questions whether law can address the
growing range of challenging environmental issues. Not optimistic
about UNCED, he argues that it will likely not significantly improve ex-
isting arrangements. Further, he suggests that domestic compliance with
environmental obligations is inadequate and compliance with interna-
tional obligations is largely absent. Many states fail to meet the most ba-
sic requirements of the law, such as reporting, and substantive obliga-
tions remain unimplemented. The data he presents are discouraging:
only 19 of the 64 parties to the 1972 London Convention reported on
the number and types of dumping permits they issued in 1987; only 13
of the 57 parties to MARPOL 73/78 reported violations and penalties
they had imposed in 1989; only 25 of the more than 100 parties to the
1973 CITES submitted reports on 1989 import and export certificates
for listed endangered species.
Others similarly conclude that effective enforcement of the treaties has
been lacking (M. J. Kelly 1997, 448) and that there simply are too many
treaties, engendering a kind of “treaty congestion” (Kelly 1997; Weiss
1993). An analysis by the U.S. General Accounting Office (1992b, 3– 4)
of implementation also is quite negative: “many reports are submitted
late or incomplete, or are not submitted at all.” Almost half of the reports
to the Montreal Protocol Secretariat had information gaps. Equally if not
more discouraging responses were reported for MARPOL, CITES, and
the International Tropical Timber Agreement. The GAO further noted
that those nations that carry out agreements may be put at a competitive
disadvantage compared with countries that do not because of the high
costs involved in coming into compliance. After citing some success in the
number of international environmental instruments being concluded,
Freestone warns that if they are not implemented, they “may not simply
be worthless: they may be worse than worthless if they give the impres-
sion that all is well when the opposite is in fact true” (Boyle and Freestone
1999, 360).
At the regional level, assessments are more varied but still critical.
Johnson and Corcelle (1992, 340) conclude about the European Union:
Generally speaking, numerous weaknesses and gaps in the imple-
mentation of environmental directives have been noted by the Com-
mission: often inclusion of these directives in national law is delayed;
they are often only partially incorporated; in practice, the directives
have been considered as recommendations, rather than provisions
having a restrictive legal power; in some cases even the decisions of
the Court of Justice recognizing an infraction on the part of a Mem-
ber State, have not been followed.
Enforcement procedures within the European Community, both at na-
tional and at community levels, are ineffective (Sands 1995a); defini-
tions within European law remain elusive; and it is characterized by
“messiness in certain areas and absurdities in others,” although the case
with European waste law may ultimately make for a more balanced as-
sessment (Tromans 2001, 156).
In a criticism that she generalizes to the UNEP, Kutting (1994, 238)
notes the potential weakness of focusing on compliance rather than the
effectiveness of international environmental law. About the Mediter-
ranean Action Plan (MAP) she observes, “If cooperation rather than im-
plementation is seen as the aim of MAP, it can be described as a suc-
cessful agreement. Unfortunately, cooperation without implementation
does not improve the state of the marine environment. Thus, MAP lacks
effectiveness.” Explicitly addressing progress in environmental terms,
John Carroll (1988, 276) concluded of the International Joint Commis-
sion that “in broader societal concerns of water and air pollution, it has
achieved little of significance when measured against getting the prob-
lem solved, and that should be the only real measure.”
Some observers attend to the weakest parts of treaties and generalize
therefrom. They see vague definitions such as the undeveloped “ecosys-
tem approach” in the Convention on the Conservation of Antarctic Ma-
rine Living Resources (Redgwell 1999); loopholes, such as through bi-
lateral agreements in the Basel Convention; incentives to defect from the
Montreal Protocol and absence of effective compliance-promoting
mechanisms; failure to address air pollution emissions from vessels un-
der MARPOL and related regimes; creation of polarization rather than
consensus with the Straddling Stocks and Highly Migratory Fish Treaty
and its failure to address protection of the 90 percent of the world’s
fisheries within the 200-mile exclusive economic zones of coastal na-
An Accounting 87
tions; the possibility of trade between members and nonmembers of

CITES, its provision allowing downgrading of species from extremely
endangered to threatened, and failure to provide adequate financing to
meet obligations; ineffective monitoring and management under certain
fish protection conventions; and vote buying, expensive use of scientific
research, and aboriginal catch exemptions under the international whal-
ing regime.
In addition, the Commission on Sustainable Development has made
only modest progress in implementing Agenda 21, and its activities have
been decried as “depressingly slow” (Handl 1994, 307) and remaining
in a very preliminary stage (Bergesen and Botnen 1996). The Bamako
Convention has a noble objective and contains a precautionary prin-
ciple, but it lacks an effective monitoring and enforcement mechanism,
commitment from some African states, and sufficient funding (Schnei-
der 1996, 265). The International Convention for the Conservation of
Atlantic Tuna has been ineffective in reversing the trend of declining
tuna stocks in part because some fishing nations did not sign the treaty.
Among those that did are countries, such as the United States, that have
not been sufficiently influenced by the regime’s compliance rules. Quo-
tas set by participating parties have been unlawful. For example, the
U.S. quota was set at three times its allocation (Nickler 1999). True, a
trade measure element exists in the regime, but it is focused on non-
members.
Dauvergne (1998, i) is anticipatorily pessimistic on forestry: “Even if
current efforts to develop a global forest convention are successful, even
as governments embrace new environmental institutions and laws, and
even as international activist groups and local nongovernmental groups
gain influence, genuine reforms will still occur slowly, perhaps too
slowly to save the remaining old-growth tropical forests of the Asia-
Pacific.” By 2000, internationally traded tropical timber was to come
entirely from sustainable sources (Humphreys 1996b). That goal has
not been met.
Anecdotes fuel these negative assessments. The standoff between the
United States and Canada on overfishing in the Pacific Northwest has
been embarrassing. Canadian fishermen were a graphic reminder of the
fragile nature of international environmental law, as they encircled Amer-
ican ships with their small vessels to block them from leaving the bay.
Other examples are regressive: Germany’s plan to phase out a water
pollution tax established in 1976, an action incompatible with principle
16 of the Rio Declaration and chapters 4 and 18 of Agenda 21 (Handl
1994, 308); the European Union’s failure to adopt an EU-wide carbon

tax, despite the EC’s political commitment to stabilize carbon dioxide
emissions at 1990 levels by the year 2000 (308); the American reliance
on voluntary cooperation by business and industry for reducing green-
house gas emissions (308); the failure at the U.N. Conference on En-
vironment and Development to produce a global forests convention
(Humphreys 1996b).
The 1991 Air Quality Agreement between the United States and Can-
ada lacks external control over environmental impact assessment. Nei-
ther it nor the ECE Convention on environmental impact assessment
has substantive value if the procedural obligations (consultations or
conciliation) are unsuccessful. Indeed, in a survey the Secretariat of the
United Nations “was unable to uncover any instance where an activity
was enjoined on account of the environmental risks it entailed, even
though such requests had at times been made” (Okowa 1997, 288).
The 1986 Convention on Early Notification of a Nuclear Accident
allows a state to evade its duties by concluding that the accident is not
“radiologically significant” (Okowa 1997, 297). With regard to a pro-
cedural obligation provided by treaty, pertaining to the exchange of in-
formation, Okowa (301) summarized:
The determination of breach of obligations of this character is bound
to be problematic in so far as their performance cannot be tested
objectively. There are no uniform principles or rules regulating the
collection or dissemination of information. A State may decide to
supply minimal information, or install inadequate monitoring equip-
ment, but in the absence of institutional or third party mechanisms or
criteria for determining the level of compliance it would be very dif-
ficult to make out a case of breach.
The provisions regarding land-based sources of marine pollution in
the controversial Law of the Sea Treaty (UNCLOS) are strikingly weak,
“certainly the weakest formulations to be found in international legal
documents” (Biermann 1998, 39). UNCLOS articles 207 and 212 may
be understood only as a general rule of state conduct whose content is
still determined by the individual will of states (Biermann 1998, 39) and
collective scientific interests of the community of nations as a whole are
not protected (Burke 1996). UNCLOS had devoted little attention to
the conservation and management of high-seas fish stocks. From 1982,
fishing outside the 200-mile zone increased as nations sought new areas
to exploit. Concomitantly, there was mismanagement and overexploita-
An Accounting 89
tion of resources within the 200-mile limit, renewing pressures on those

fish stocks that straddle the 200-mile boundaries (Davies and Redg-
well 1997, 200), although the protection of these stocks has been ad-
dressed in an agreement that came into force almost two decades after
UNCLOS. The continued hegemony of the flag state in respect to pros-
ecution of violations of fisheries conservation measures on the high seas
is another defect (273). Furthermore, the UNCLOS mechanisms for dis-
pute settlement have contributed to the proliferation of international tri-
bunals, whose uncoordinated actions can fragment both substantive law
and procedures for settling disputes (Boyle 1997).
With the exception of the European treaty regimes, the 40 regional
seas environmental treaties have not been effective. The regimes are
characterized by a vagueness similar to UNCLOS articles 207 and 212.
The Antarctic Treaty System has prohibited mining under a compre-
hensive environmental protection regime, but a long-run solution for
stopping the evolution of mineral exploitation is not in sight. The pro-
tocol’s 50-year ban rule has temporarily resolved some discrepancies,
but this issue can be reopened at any time and certainly will be in the fu-
ture (Schram and Vidas 1997, 293).
POSITIVE OVERALL ASSESSMENTS

Other assessments are more positive. Sands (1993, 147) counters his own
dismal statistics on compliance in general with much more encouraging
data for the International Whaling Commission and the Montreal Proto-
col. Susskind (1994a, 17–18) points to countries previously uncaring
about natural resource management that now make explicit commit-
ments to be responsible. He also cites the increased number of whales, the
recognition of wetlands preservation and the rescue of 30 million hectares
of wetlands (an area the size of Italy), control of mineral development in
the Antarctic, protection of 80 “natural world heritage” sites, and clear
delineation of migratory flyways. Also, many provisions of the Law of the
Sea have come into practice. Susskind’s list goes on and includes reference
to the ozone treaties and those on hazardous waste transport.1 De Ytur-
riaga (1997) also locates strengths in his assessment of the Law of the Sea.
Scovazzi concludes that “There is hardly any doubt that treaties are
considered to be the best tools in improving the protection of the envi-
ronment at the international level” (Scovazzi and Treves 1992, 28). The
Global Environment Outlook (1997, 2) concluded: “World-wide, the
greatest progress has been in the realm of institutional developments,
international co-operation, public participation, and the emergence of

private-sector action. Legal frameworks, economic instruments, envi-
ronmentally sound technologies, and cleaner production processes have
been developed and applied. Environmental impact assessments have
become standard tools.” The policy grandfather of domestic environ-
mental impact assessment law, Lynton Caldwell (1999), has in his later
analyses praised the contribution of international global law. He recog-
nizes a body of precedent-setting law and practice as having the charac-
ter of an international constitution for the world environment.
Juxtaposing his assessment with Henry Kissinger’s view of diplomacy
as the exercise of competitive power politics among nations, Shabecoff
(1996, 116) states that “the rise of green diplomacy in the latter part of
the 1980s seemed to reflect something different: a growing awareness of
a new realpolitik that must be addressed not by competition but by co-
operation and not by unilateral exercise of sovereign power but by pool-
ing that power to confront the complex array of environmental and eco-
nomic problems that threaten all nations.” He enumerated the targets of
international environmental law to demonstrate its importance: nothing
is more real than poverty and hunger, disease caused by polluted water,
massive relocations of people to avoid scarcity, and global climate
change and ozone depletion.
The Environmental Law Network International (1999) balances
some of its negative analysis, noting that environmental law principles
“are by no means devoid of legal force and effect.” The International
Court of Justice has given weight to certain of those principles, as have
individual nation-state courts, including the German Federal Constitu-
tional Court. Although the ICJ’s pronouncements are more recom-
mendatory than prescriptive, such as in the Gabcikovo-Nagymaros case
between Hungary and Czechoslovakia-Slovakia over damming of the
Danube and interpretation of a treaty on locks and other facilities, the
U.N. judicial organ is helpful in promoting “a process of ongoing nego-
tiations geared toward achieving a political result that is mutually ac-
ceptable” (Oxman 1998, 278).
French (1992), attributing a long list of achievements at least in part
to international agreements, noted that sulfur dioxide emissions fell sub-
stantially in Europe from 1980 to 1990, the health threat of radiation
from atmospheric testing decreased dramatically since the 1963 test
ban, and the percentage of “clean and safe” beaches in the Mediter-
ranean grew impressively since the adoption of the 1975 Mediterranean
Action Plan. Also, whale harvests have fallen from tens of thousands to
An Accounting 91
tens since the International Whaling Commission tightened its regula-

tions; poaching of elephants dropped precipitously in Africa since 1989;
Antarctica has been protected from mining, military activities, and
other environmentally degrading actions; and hazardous waste imports
have fallen. Nonetheless, for each success, French names a rather daunt-
ing “remaining challenge.” 2
Stone (1993, 119 –120), in a comprehensive treatment of law and
other institutions as means of protecting the global environment, iden-
tifies several significant weaknesses in environmental treaties, most no-
tably vagueness in language, and then concludes:
the notion of more ambitious multilateral conventions will and
should go forward. . . . Nonetheless . . . no one should doubt that
even without “hard” sanctions backing them up, treaties, and even
vague, aspirational declarations of principle, have significant effects
on patterns of behavior in the international community. Indeed, no
one should doubt the salutary effects in the mere process of bringing
diplomats together to discuss global problems.
Other analysts focus on the strengths of particular treaties, such as:
the effective use of trade-related environmental measures (TREMs) to
promote compliance in the Basel Convention, numerous innovations in-
cluding the funding mechanism for TREMs in the Montreal Protocol,
and effective regulation of the international trade in pesticides. Hough
(1996) concluded that (unlike other pesticide-related issues such as in-
dustrial safety and environmental pollution) “the rules established by
UNEP and the FAO [Food and Agriculture Organization] have been ob-
served by both the chemical industry and government and have had an
impact on political behavior.” Hough’s assessment is important because
the most powerful affected actors—the agrochemical industry and the
United States and Great Britain— did not support the establishment of
the FAO and UNEP rules, which appeared, they proclaimed, “not to be
in their interests.” 3
In their thorough review of fourteen case studies, Victor, Raustiala,
and Skolnikoff (1998, 2) concluded that for most of the eight areas of
regulation they identify, “regulated behavior has changed markedly in
the past two decades.” They cite virtual elimination of ozone-depleting
substances, dramatic decreases in emissions of sulfur dioxide, stabiliza-
tion of emissions of nitrogen oxides, the banning of hazardous chemi-
cals and pesticides, protection of whales, and elimination of dumping
at sea of high-level radioactive wastes—all at least in part related to
implementation of international environmental law. Weiss and Jacobson

(1998) at about the same time concluded that compliance with the
World Heritage Convention has been quite respectable; that notwith-
standing some weaknesses, CITES has been linked to an end of trade in
some species; that despite major problems with compliance, the London
Dumping Convention has been relatively successful, with decreases mea-
sured in the millions of tons of dumped wastes; and that the Montreal
Protocol has been unusually effective. Van Heijnsbergen (1997, 217)
also concluded that CITES “functions well,” despite noting that a third
of the parties do not have adequate implementing legislation and that the
convention does not have a binding dispute resolution mechanism.
A quarter-century after the UNEP Regional Seas Program was initi-
ated, Boyle and Freestone (1999) found a mixed record that included
some positive results. The Mediterranean Action Plan has established,
with “a measure of success,” the legal and institutional basis for coordi-
nation of national programs and measures. Potentially devisive issues,
such as interregime control of land-based pollutants, have been ad-
dressed through the MAP process. The Kuwait Action Area agreement
has successfully introduced environmental impact assessment into its re-
gion and has fostered an innovative approach to control of land-based
pollution. Similar successes with regional control of land-based and other
emissions have been achieved in the North Atlantic and the Baltic Sea.
Nonetheless, again, there are “major short-comings” in all the regional
arrangements, including poor implementation capability, insufficient at-
tention to dispute resolution, and neglect of civil-liability strategies.
As to oil pollution of the seas, Mitchell (1994), contrasting the MAR-
POL regime to that of an earlier convention, found that MARPOL has
achieved nearly universal compliance. He gave several explanations for
its success: transparency of actions, provision of potent and credible
sanctions, and reduced implementation costs for states because MAR-
POL builds on established infrastructures. Duruigbo (2000) also recog-
nizes the value of MARPOL’s compliance-promoting devices (with near
universal installation of ballast tanks and oil washing), although he
notes challenges to enforcement related to limitations on jurisdiction,
part of a “predicament” that hangs “like an albatross around the neck
of international law generally.”
Okowa’s assessment of the procedural requirements of consultation
is fairly positive, and her overall conclusion (1997, 334 –335) regarding
this type of treaty obligation (“procedural environmental”) is at least
mixed:
An Accounting 93
In many contexts the obligations are not defined with precision, and
much uncertainty persists as to their essential components. . . . As
found in treaty regimes, [however,] there is little doubt that these ob-
ligations have legal force for the parties to them. To that extent the
obligations they impose are strictly speaking justiciable, notwith-
standing their general imprecision. . . . As independent legal duties,
procedural obligations are likely to influence the behaviour of even
the most reluctant of States.
Assessments of soft law, customary law, and framework law also
vary. The campaign to control high-seas pelagic driftnet fishing through
nonbinding legal means “seems to have succeeded” (Rothwell 2000,
145). U.N. resolutions are being reevaluated with increasing respect for
their effectiveness (Shelton 2000). The International Law Commission
concluded that “there is overwhelming support for the doctrine of equi-
table utilization as a general guiding principle of law for the determina-
tion of the rights of States in respect of the non-navigational uses of in-
ternational watercourses” (Nollkaemper 1996, 44). But Nollkaemper
characterized the doctrine as “highly indeterminate,” based on an un-
wieldy weighting of seventeen factors. It is “an open-ended framework
for political compromise without an independent legal identity. . . . The
flexibility of the principle means that it easily dwindles into a ‘might-is-
right’ paradigm” (46). Bergesen and Botnen (1996) conclude that the
activities of the Commission on Sustainable Development have re-
mained in a very preliminary stage. Kaplan (1991) concludes that cus-
tomary law has not been able to address adequately the challenge of sub-
seabed nuclear waste disposal.
A CLOSER LOOK: FIVE CASE STUDIES

These very different assessments reflect the variable success of individual
efforts, but they also underscore the different criteria for evaluating suc-
cess, different understandings of the goal of an international law of the
environment, and different accounting schemes. Another way of looking
at the record is offered by detailed case studies that examine evaluative
criteria and give a more textured picture of success and failure and the
methods used to reach those conclusions. The following cases cover in-
ternational attempts to protect the air (Montreal Protocol and its
amendments), water (Black Sea Environmental Programme), and land
(Basel Convention) and, more generally, environmental protection and
enforcement (the NAFTA-related North American Agreement on Envi-

ronmental Cooperation). Global climate change is the focus of the last
study, which addresses earth systems more generally.
AIR: THE MONTREAL PROTOCOL AND ITS AMENDMENTS

No consensus has emerged on which international environmental law
has been the most successful. Among the most broadly acclaimed
treaties, however, is the Montreal Protocol and its amendments. The
protocol, which aims to reduce the release of gaseous chemicals that
damage stratospheric ozone, is hailed as a model for north-south coop-
eration on global environmental problems.
Certain chemicals used in industrial and industrializing societies have
caused an increase in the amount of ultraviolet radiation that reaches the
earth’s surface. Refrigerants (CFCs) used in private homes and automo-
biles, flame retardants (halons) found in fire extinguishers, and other
gases react with ultraviolet radiation when they reach the stratosphere.
Chlorine free radicals are released by the ultraviolet radiation, and a se-
ries of chemical reactions is catalyzed. “The natural stratospheric re-
moval processes for ozone are then supplemented by chlorine-based se-
quences. . . . The average ozone molecule survives for a short time
and less ozone is present than before” (Rowland 2001, 1269). The re-
actions upset the natural processes of ozone creation, destruction, and
re-creation. (A single chlorine atom can destroy thousands of ozone
molecules in the stratosphere.) As a result, the protective layer of ozone
that surrounds the earth is weakened and the earth’s surface is exposed
to elevated levels of ultraviolet radiation. Increased exposure to ultravi-
olet radiation induces cataracts, suppresses or destroys the human im-
mune system, and causes some forms of skin cancer. It endangers many
species of phytoplankton, essential to the survival of nearly all fish pop-
ulations. Man-made materials also suffer damage.
None of this was known when chlorofluorocarbons were first pro-
duced in 1928. According to the standards used at the time to test new
chemicals, chlorofluorocarbons were thought to be safe. They were not
toxic. They were not flammable, and they are chemically stable in the
lower atmosphere. The inventor of the first CFC compound sought to il-
lustrate its safety by inhaling its vapors and using his CFC-loaded breath
to blow out the flame of a candle (Litfin 1994, 58).
By the eighties, use of CFCs and other ozone-depleting substances
was well established in industrialized countries. Their production and
An Accounting 95
use in developing countries had been small by comparison, but absent

the presence of accessible and affordable alternatives, these nations
would be likely to increase use greatly. Scientific understanding of the
nature, magnitude, and consequences of the CFC problem was growing,
but the issue was still controversial in the seventies. In 1974 Mario
Molina and F. Sherwood Rowland published a paper showing the chem-
ical process by which CFCs, which remain in the atmosphere for de-
cades, could cause continued damage to stratospheric ozone. The paper
launched a heated scientific debate, and industrial acceptance of the ex-
istence of risk was slow. As of 1980, leaders at DuPont, the world’s
largest CFC producer, maintained that the environmental threat posed
by CFCs was not established well enough to warrant continuing re-
search on replacement compounds (Litfin 1994, 70).
Later, when the dangers were recognized, it was clear that the pos-
sible effects of reduced levels of stratospheric ozone could not be con-
trolled by any nation in isolation. Without international cooperation, ef-
forts to cut back on production in one country would likely be offset by
activities elsewhere. Some effects of ozone depletion are concentrated in
particular nations, but others are more diffuse. Many political leaders
were begininng to conclude that an international agreement was essen-
tial to reduce the likelihood and magnitude of potentially devastating
damage to life around the globe.
International Environmental Law Response

In 1976 the Governing Council of UNEP organized a meeting of IGOs
and NGOs to review information about the ozone layer, and one year
later UNEP began working on ways to address the ozone issue. It cre-
ated a Coordination Committee on the ozone layer in collaboration with
the World Meteorological Organization. This group of IGO, NGO, and
national and scientific organization representatives was to produce a
semiannual assessment of the depletion of the ozone layer and its effects.
There followed several important events. In 1985 the Vienna Conven-
tion on the Protection of the Ozone Layer was adopted. It called for co-
operation on many matters: on research and information exchange on
human effects on the ozone layer and human health effects of modifica-
tion of the layer; on formulation of protocols and annexes; on basic sci-
entific research; and on exchange of relevant scientific, technical, socio-
economic, commercial, and legal information (article 4). It established a
conference of the parties to adopt protocols. It described how amend-
ments to the convention would be made by consensus, except, “as a last

resort,” by a three-fourths majority of parties present and voting; how
amendments to any protocol were to be made; and how annexes were
to be adopted and amended. Settlement of disputes would be by negoti-
ation, good offices, or mediation by a third party, and arbitration or sub-
mission to the ICJ.
The convention solidified the commitment to find ways to protect the
ozone layer and improve understanding of stratospheric ozone reduc-
tion, but it contained no specific CFC standards or regulations. As late
as December 1986 only half a dozen nations had ratified it. The next
two years witnessed greater public interest in the ozone problem, further
scientific publications reporting on its severity, the recognition by in-
dustry (most notably DuPont) that CFC substitutes could be developed
within a small number of years, and continued expert workshop activ-
ity under the auspices of UNEP.
In 1987 governments of developed and developing countries agreed
to the Montreal Protocol on Substances that Deplete the Ozone Layer,
despite continuing uncertainty about the existence of damage to the
ozone layer and conflicting political interests over possible courses of ac-
tion. Under article 8 of the Montreal Protocol, parties must establish
means of determining noncompliance with the protocol and they must
also determine how to treat noncompliance. The Copenhagen Amend-
ments (1992) met this requirement by creating an implementation com-
mittee constituted of ten parties and giving that committee the author-
ity to receive submissions by a party regarding reservations about
another party’s implementation of protocol obligations. The committee
makes recommendations to the Meeting of the Parties. In Copenhagen
hydrochlorofluorocarbons (HCFCs) and other substances were added
to the list of controlled substances. The 1997 Montreal Amendments de-
termined several measures that the Meeting of the Parties would be able
to take in cases of noncompliance, namely: suspend protocol privileges,
issue warnings, and provide financial and technical assistance. This is
done through the Montreal Protocol Multilateral Fund, the institutional
characteristics of which are were laid out in article 10 of the 1990 Lon-
don Amendments.
There are several fundamental requirements of the protocol regime.
Specific timetables for restrictions have been created, and a phaseout or
ban of most of the ozone-depleting substances (ODSs) has been
adopted; for some substances the requirement is a freeze on production.
Cooperation in scientific research and exchange of information are pro-
An Accounting 97
moted. Abatement measures for ODSs have been adopted. those sub-
stances now include CFCs, halons, carbon tetrachloride, methyl chloro-
form, fully halogenated CFC, HCFC, hydrobromide fluorocarbons,
and methyl bromide. A permanent funding entity is in place and trade
restrictions can be imposed for noncompliance. Member countries com-
mit to establish licensing systems for trade, and a mechanism for avoid-
ing disputes and settling them when they are not avoidable, the non-
compliance procedure has been initiated. The regime adopted the
revolutionary concept in international law of simplified majority deci-
sion making, and no reservation is allowed. The ozone regime, in addi-
tion to the state parties, includes the Meeting of the Parties, the Imple-
mentation Committee, and the UNEP Ozone Secretariat, which is
empowered, among other matters, to initiate a formal dispute resolution
procedure, a first in international law (Yoshida 1999).
Ambassador Richard Benedick, who led the United States participa-
tion in the negotiations for the Vienna Convention and the Montreal
Protocol, said that negotiations were characterized by “a sense of his-
tory making.” At the conclusion of the negotiation of the Montreal Pro-
tocol, Mostafa Tolba, the UNEP executive director whose strong per-
sonality had helped build support for substantive commitments in the
protocol, stated that “the environment can be a bridge between the
worlds of East and West, and of North and South. . . . This Protocol is
a point of departure . . . the beginning of the real work to come”
(Benedick 1991, as cited in Hunter, Salzman, and Zaelke 1998, 214).
This agreement was achieved despite the lack of measurable evidence of
damage to the ozone layer at the time (545).
Assessment: Physical Parameters

The Montreal Protocol and its amendments will lead to a reduction in
the magnitude of loss of stratospheric ozone in the twenty-first century
provided that signatory nations comply with their commitments. Be-
cause the ozone-depleting substances that are currently in the strato-
sphere will continue to affect stratospheric ozone for a number of de-
cades, the problem has not been eliminated.4 Assuming that all
commitments made in the Montreal Protocol and its amendments are
met, the ozone layer is predicted to stabilize near the year 2050 (Hunter,
Salzman, Zaelke 1998, 576), although some analysts conclude that it
will be the middle of the century before an adequate comprehensive
assessment of the regime’s impact can be undertaken (Sims 1996).
In the United States, many organizations that have used large amounts
of substances regulated by the Montreal Protocol are now exemplary in
their compliance, especially McDonald’s (no more CFCs in packaging),
Whirlpool (CFC-free refrigerants), and the U.S. military (phaseout of
halons in fire-fighting equipment)(World Resources Institute 1996).
There have been some problems associated with the incentive-based
mechanisms for industrial compliance, most notably the black market in
chlorofluorocarbons. DeSombre (2000 –2001) argues that changing eco-
nomic, technological, and regulatory conditions will reduce the magni-
tude of the problems over time.5 Other challenges, however, are not based
on bad faith but are simply reflections of capacity to implement. The
United Kingdom, for example, faced with destroying CFCs in the foam of
millions of refrigerators, lacks adequate facilities to perform the task
(Tracey 2001).
Meanwhile, measurements of CFCs in the atmosphere indicate con-
tinued growth in absolute terms but a decrease in the rate at which CFCs
are added to existing levels.6 Evidence from the U.S. National Aero-
nautics and Space Administration and the National Oceanic and Atmo-
sphere Administration shows that the loss of stratospheric ozone con-
tinues to affect all latitudes outside the tropics, with areas near the South
Pole experiencing the greatest losses.7
The worst year to that point for the size of the ozone hole was 1998
(Environmental News Network, 7 October 1998). Because tempera-
tures in the stratosphere over the South Pole were warmer in 1999, the
ozone hole did not grow as large as it did in 1998 (Associated Press,
7 October 1999). Global climate change is expected to contribute to the
size of the ozone hole. Although global climate change is anticipated to
increase average temperatures near the earth’s surface, it is expected to
decrease temperatures in the stratosphere. Colder temperatures in the
stratosphere create conditions conducive to larger losses in stratospheric
ozone due to CFCs and other ozone-depleting substances (Environmen-
tal News Network, 7 October 1998).
Assessment: The Contribution of International Environmental Law

Expert assessments of the effectiveness of the ozone regime are predom-
inantly positive. The Vienna Convention and the Montreal Protocol and
subsequent amendments are structured so that efforts to address strato-
spheric ozone reduction can evolve with improvements in scientific un-
derstanding of the situation and political willingness to act. Flexibility
An Accounting 99
of the regime has enabled international cooperation to reduce the use of

ozone-depleting substances. The flexibility is made possible by three
characteristics of the agreement: the convention-protocol structure, the
adjustment system, and the role of the administrative bodies created to
implement the protocol (DeSombre 2001). Success of the regime derives
in part from UNEP’s decision to involve both environmental NGOs and
industry groups, in this case a concentrated class (Petsonk 1990).
The convention-protocol structure involves progressive levels of po-
litical commitment and technical specificity. Through the convention,
signatory parties agree to support a general idea and to participate in pe-
riodic negotiations over details. The details are noted in the protocols
and their amendments subsequently negotiated. Parties are obliged to
comply with the convention, protocols, and amendments agreed to
prior to their ratification, but they can choose among subsequent pro-
tocols and amendments.
The adjustment system, in contrast, allows substantial scientific but
limited political flexibility. To adjust the specific commitments of the
Montreal Protocol (e.g., the time frame for ending the use of a chemi-
cal), a majority of developed and a majority of developing countries
(provided that their numbers combine to equal at least two thirds of the
parties to the agreement) must vote in favor. If they do, then all of the
signatory parties are obliged to comply, whether they voted in favor of
the change or not.
The organizations created by the Montreal Protocol to oversee im-
plementation and the expenditure of funds have been very effective in in-
sisting on coordination among work programs and in reporting efforts
and concerns at each meeting of the parties. In addition, the parties have
established a number of subsidiary bodies, which facilitate ongoing
working-level communication on new issues.
Another feature of the Montreal Protocol’s flexibility is its noncom-
pliance procedure. It enables a fast and conciliatory approach to non-
compliance (Yoshida 1999). Under the procedure, parties that do not
comply with their commitments are subjected to informal persuasion
and a “politics of shame.” This strategy relies on public reporting, eco-
nomic incentives, and multilateral pressure from other signatory parties.
The NCP regime is a dispute avoidance and settlement mechanism in-
ternal to the regime, based on a collective reaction rather than con-
frontational bilateralism common to formal dispute settlement mecha-
nisms. Yoshida (1999) considers it more flexible, simple, and rapid than
traditional judicial settlements and claims that it demonstrates great
respect for the sovereignty of member states. Flexibility is also evident in

the protocol’s use of economic incentives to promote industrial devel-
opment of technologically derived alternatives and the participation of
developing countries in the phaseout of ozone-depleting substances.
Perhaps the most important means by which the protocol solicits a
poorer country’s participation is its willingness to hold industrialized
and developing countries to different standards. For instance, less devel-
oped countries consuming ozone-depleting substances below a specified
level (0.3 kilograms per capita) can delay compliance with their com-
mitments under the protocol for ten years beyond their scheduled im-
plementation dates (article 5). In addition, the protocol fund helps de-
veloping countries meet the costs incurred by eschewing the use of
ODSs. The protocol also contains technology transfer mechanisms to
facilitate the diffusion of replacement technologies to developing coun-
tries. Nonetheless, there are varying degrees of responsiveness among
developing nations, linked in part to differing assessments about north-
south relations encompassed in the regime. China, for example, was
more accepting than India of the Montreal Protocol (Sims 1996).
The Montreal Protocol, as the first “precautionary treaty,” provides
a precedent that diplomats can draw on in future negotiations on global
environmental problems fraught with scientific uncertainty (Hunter,
Salzman, and Zaelke 1998). In particular, it employs technology-forcing
mechanisms to enable implementation as future hazards and circum-
stances require (545). The protocol regime entities have been active and
effective. By the end of 1997, for example, the Meeting of the Parties, in
accordance with the Rules of Procedure, had already made more than
200 decisions, many of them related to noncompliance and ODS regu-
lation (Yoshida 1999, 118).
Even Lipschutz, who is skeptical about traditional top-down treaty-
based regimes, concedes that the Montreal Protocol “seems to have
worked” (1996, 27). “The ozone agreements have been ratified by most
of the countries of the world and include provision for the transfer of
technology and resources to Third World countries that might otherwise
find themselves put at an economic and technical disadvantage by the
ban on ozone-depleting substances.” Miller and McFarland (1996) are
sufficiently positive to advise that the climate-change regime might do
well to explore characteristics of Montreal: (1) the power of scientific
consensus, even when under conditions of some uncertainty, (2) the
value of affected industries working with government and environmen-
An Accounting 101
talists, (3) the economic benefits of early action, and (4) the need for rec-
ognition of the impacts on developing countries.
There have been criticisms of the regime. There is a risk of noncom-
pliance with its rules because it is not everywhere clear what compliance
means (Yoshida 1999). Norms are not well defined. Furthermore, choice
of the World Bank as the main implementing agency of the fund has been
strongly attacked because, allegedly, the bank continues to fund projects
that use technologies that rely on ozone-depleting substances. The bank
also reportedly established markets in the south for destructive, obsolete
technologies (Greenpeace 1994). The financial assistance mechanism
sets a precedent and creates expectations for similar subsidies in other
environmental agreements. A demand by developing countries for finan-
cial and technical help may be construed as a failure to take responsi-
bility for a share of the costs of protecting the global environment. In a
political atmosphere in some nations of waning support for overseas de-
velopment assistance, these demands can weaken diplomatic support for
international environmental agreements. Furthermore, if the assistance
decreases the amount of profit obtainable from research investment in
replacement substances, it will reduce the incentive for industrialized
countries to develop new technologies and undermine research efforts in
developing nations as well. Provision of subsidies may also result in per-
verse rewards for developing countries to increase production of ODSs
in the short run. China exploited such an opportunity for short-term
gains from ODS production (DeSombre 2000 –2001). Finally, although
experts differ, some observers feel that illegal CFC trade is inevitable and
will continue because of problems inherent in the regime, such as ex-
emptions for recycled CFCs (Clapp 1997) and a grace period for devel-
oping countries (Papasavva and Moomaw 1997).
Conclusions
The Montreal Protocol with its amendments is a historic precedent. In
the face of a severe global environmental problem steeped in scientific
uncertainty, industrialized and developing nations agreed to an innova-
tive arrangement. One of the new principles set forth by the protocol is
the idea that nations should take precautions against plausible environ-
mental threats even if irrefutable evidence of their existence is not yet
forthcoming. Another principle applies to the distribution of costs and
benefits across nations that bear common but differentiated responsibil-
ities for past and future threats to the global environment. This ap-
proach is characterized by differentiated commitments among signatory
nations and technology transfer to assist developing nations to reduce
the environmental damage that their industrialization is likely to cause.
Because of the development of a black market in ozone-depleting sub-
stances, the ozone layer is unlikely to stabilize as soon as scientists had
predicted. As subsequent provisions of the agreement come into force,
however, black-market demand is expected to subside. Also of central
concern to policymakers in the international arena are the possible
countervailing effects of controls on certain climate-change gases.
In addition to the flexibility that allows the regime to incorporate an
evolving scientific consensus and the regime’s use of innovative strategies
to promote compliance, a few other factors help explain the consider-
able success of the Montreal Protocol. The goals of the agreement are
clear, precise, and straightforward, and their realization is subject to ob-
jective evaluation. Entry into the agreement was not a major obstacle to
the agreement’s creation. Through an innovative multilateral fund, sup-
port has been adequate to help meet defined goals. The Secretariat and
its subsidiary bodies have been professional and effective. The approach
to dispute resolution is clear, recognizing increasing outside assistance if
required. The regime builds on ever-developing political acceptability
linked to the private sector’s recognition of the importance of the ODS
problem and industry’s role in creating substitutes.
WATER AND THE GREAT SEAS: THE BLACK SEA

ENVIRONMENTAL PROGRAMME
The Black Sea efforts represent one of more than forty in the UNEP Re-
gional Seas Programme. The Black Sea Environmental Programme is
not the most developed, and it is not representative of the degree of suc-
cess reached in other seas; however, its history is useful for describing
the challenges to a regional water effort and for isolating the factors
linked to the success of such a regime (DiMento 2001).
The Black Sea region denotes the six riparian states, a presently un-
recognized former Soviet republic (also riparian), and the neighboring
states that are part of the mammoth watershed of the Black Sea. The ri-
parians are Bulgaria, Georgia (Abkhazia), Romania, the Russian Feder-
ation, Ukraine, and Turkey. Major rivers that drain into the sea include
the Danube, Dnieper, and Don, which rank second, third, and fourth
among major European rivers. The sea’s surface area is one fifth the size
An Accounting 103
of its catchment area, and its depth in parts exceeds 2 kilometers. The
only ocean outlet to this gigantic water resource is the narrow and shal-
low 19-mile-long Bosporus Channel, established as an international sea
lane under a 1936 convention. The environmental problems associated
with the Black Sea are immense, and its environmental management is
a formidable task.
While scientists analyze and debate just exactly how serious the situ-
ation is, pollution and ecological degradation of the Black Sea is on al-
most every list of major environmental problems in the world.
Under the Soviet system (which in a sense was an international effort,
albeit a peculiarly centralized one), a large number of specialists in all
areas of relevance to water-body management worked on Black Sea en-
vironmental problems; however, connections between their work and
official decision making were not strong. As a Georgian retrospective
summarized: “National environmental legislation was often based upon
objectives and standards which were too strict to be enforced or were
not linked to effective economic instruments such as fines or permit
charges. As a result of years of isolation, many institutions lacked the
modern equipment and know-how necessary to face the challenge of
providing reliable information on the state of the environment itself”
(Republic of Georgia 1996). The problems were even greater than this
summary suggests, involving lack of coordination among the Soviet
states and their neighbors, lack of public participation, nontransparency
of decision making, and absence of other factors that promote imple-
mentation, such as a modern regulatory approach, technical assistance,
and adequate funding.
The environmental problem in the Black Sea is multifaceted, ranging
from loss of landscape to the extinction of species. The Black Sea’s
ecosystem has changed “irreversibly” (Global Environment Facility
1997, 139), and by the early nineties, terms such as “dead,” “close to
collapse,” and “unholy mess” were common descriptors of the status of
this giant and beautiful natural resource. Widespread pollution discour-
ages or destroys recreation, tourism, biodiversity, fishing, and water
quality. The destruction of the fish species alone in the sea is “one of the
greatest ecological catastrophes” of our time (Woodard 1997).
The riparians include Turkey and nations whose cleanup technologies,
monitoring stations, and environmental laboratories are in considerable
disrepair. As the watershed area (the drain) for more than thirty rivers,
the sea receives the effluents of 160 million people from seventeen na-
tions, one third of Europe. It is also polluted by oil and the radiation fall-
out from the accident at Chernobyl and, by some accounts, by heavy met-
als including chrome, copper, mercury, lead, and zinc (Sampson 1995).8
A great quantity of organic matter from rivers feeds the Black Sea. In
the Bosporous Strait alone the untreated sewage of 10 million people is
regularly dumped, and that represents only about 6 percent of the pol-
lutants received into the Black Sea (Sampson 1996). Dissolved oxygen
cannot complete the process of decomposition. Organic material strips
oxygen from sulfate ions, creating hydrogen sulfide, a toxic gas. The
Black Sea “is the single largest reservoir of hydrogen sulfide and the
biggest natural anoxic basin in the world. To a depth of 150 –200 me-
ters, the sea is teeming with life, but below that level, the water is
‘anoxic’ or ‘dead.’” With no oxygen there are no fish, shellfish, or bac-
teria (Global Learn 1996), a condition that in part dates back to the
waning of the last ice age as rising waters from the Mediterranean en-
tered the Black Sea basin (Ballard 2001).
The loss of biodiversity is a major problem resulting from eutrophi-
cation, “clearly the main ecological concern in the Black Sea” (Global
Environment Facility 1997). Eutrophication is the overfertilization of a
water body with nitrogen and phosphorous compounds. In the Black
Sea, that results from fertilizers and urban and industrial sewage. An
overproduction of phytoplankton and reduced sea grass and algae result
in a concomitant loss of crustaceans, fish, and mollusks. Besides, Mne-
miopsis leidyi was introduced into the region by accident from the east-
ern seaboard of America in the ballast water of a ship. This jellyfish-like
species consumes fish larvae and tiny animals that small fish feed on.
The species reached a mass of 900 million tons, which is ten times the
annual fish harvest worldwide. Many fish species were pushed to ex-
tinction, and the fish catch in the sea degenerated to 250,000 tons in
1991 from a total of 850,000 tons less than a decade earlier. One esti-
mate is that the number of fish species in the sea dropped from around
25 to only 3 to 5 in the ten-year period from 1986, when the sea had five
times the fish production of the Mediterranean, to 1996.9 Giant stur-
geon are endangered, other sturgeon species are depleted, and many
other species are either depleted or in serious decline. In addition to pol-
lution effects, sturgeon and shad cannot run upstream to breed because
of damming of the big rivers that drain into the sea.
Tanker and operational accidents have been sources of oil pollution
(about 45,000 tons annually), as has the direct dumping of solid waste
into the sea or onto wetlands. The pollution from rapid oil industry de-
velopment (1,500 tankers and tens of thousands of other cargo boats car-
An Accounting 105
rying 32 million tons of oil pass through the Bosporous Straits in each di-
rection annually), sedimentation, beach erosion, and the overall absence
of coastal zone conservation are also strongly felt. About 82 million tons
of hazardous and explosive materials also pass through the strait each
year (Moore 2000).

The Black Sea Environmental Programme (BSEP), developed under the
auspices of UNEP and the Global Environmental Facility (GEF), is one
response to the sea’s degradation. The program was established in the
early nineties and modeled on the 1976 Barcelona Convention for the
Mediterranean Sea. Bulgaria, Georgia, Romania, the Russian Federa-
tion, Ukraine, and Turkey signed the Convention for the Protection of
the Black Sea Against Pollution in April 1992 in Bucharest, and it was
rapidly ratified. The Ministerial Declaration on the Protection of the
Black Sea followed; it was signed in April 1993 in Odessa. Reflecting the
thrust of the Agenda for the Twenty-first Century (Agenda 21) adopted
at the Rio Summit in 1992, it declared among other goals “protection,
preservation and, where necessary, rehabilitation of the marine environ-
ment and the sustainable management of the Black Sea.” Furthermore,
countries were to elaborate and implement national integrated manage-
ment policies, including legislative measures and economic instruments,
in order to ensure sustainable development. The declaration encourages
public participation (including by NGOs), the precautionary principle,
use of economic incentives to promote environmental protection, envi-
ronmental impact assessment, environmental accounting, and coordi-
nation of regional activities.
The Bucharest Convention entered into force on 15 January 1994.
Other affiliate international legal instruments that make up the BSEP re-
gime include the Protocol on Protection of the Black Sea Marine Envi-
ronment Against Pollution from Land-Based Sources (21 April 1992),
the Protocol on Co-operation in Combating Pollution of the Black Sea
Marine Environment by Oil and Other Harmful Substances in Emer-
gency Situations (21 April 1992), and the Protocol on the Protection of
the Black Sea Marine Environment Against Pollution by Dumping (not
yet in force).
Initially GEF, the European Union, Austria, Canada, Japan, the Neth-
erlands, Norway, and Switzerland provided funding. Funding also comes
from UNEP and is to be contributed by the member countries.10 The Pro-
gram Coordination Unit of the BSEP was located in Istanbul. In spring

1998 it was replaced by the Project Implementation Unit, comanaged by
the U.N. Development Programme, with the hope that it becomes a pre-
cursor to a secretariat to be financed by the member countries.
The regime that evolved was noteworthy for at least two reasons.
First, it came into being very quickly. Nation-states that were on oppo-
site sides in the Cold War developed ways (theoretically, at least) to co-
operate a few short years after Turkey and the former Soviet Union
states developed formal relations. Second, rather than easing into the
world of international environmental law, the parties became the first to
adopt a regional seas agreement built on the principles of Rio.
In 1993 three objectives of the BSEP were highlighted: improve the ca-
pacity of Black Sea countries to assess and manage the environment, sup-
port the development and implementation of new environmental policies
and law, and promote sound environmental investments. Activity centers
to be hosted by the individual Black Sea countries were created.11
In October 1996 the Black Sea border countries signed the Strategic
Action Plan (BSEP 1996). Its preamble reaffirms the commitment of the
member states to the rehabilitation and protection of the Black Sea and
the sustainable development of its resources. One element of the short
plan, which the BSEP describes as a flexible document responsive to
contingencies, sets out principles seen as the basis for international co-
operation. In addition to reaffirming ideas in the 1993 Ministerial Dec-
laration, it emphasizes regional cooperative and coordinated activity
and enhanced transparency through rights of access to information and
improved public awareness.12

There is some scientific debate about several aspects of the Black Sea’s
environmental status, including the extent of the human contribution to
the hydrogen sulfide cycles and the amenability to midscale interven-
tions. Another area of scientific uncertainty is the discharge of chemical
and microbiological contamination in coastal and marine areas. Only in
recent years has there been movement toward standardization of the
protocols and methodologies for scientific investigation, even within the
participating nations (Sampson 1995).
As of 1996, a BSEP report could provide a somewhat more encour-
aging perspective of the physical status of the sea. The Black Sea Trans-
boundary Diagnostic Analysis “clearly demonstrates that the Black Sea
An Accounting 107
environment can still be restored and protected.” The Strategic Action

Plan of 1996 concluded that “environmental monitoring conducted
over the past 4 –5 years . . . reflects perceptible and continued improve-
ments in the state of some localized components of the Black Sea ecosys-
tem.” Furthermore, there are reports that Mnemiopsis, although still a
plague, is in decline and that water quality along the Turkish coast is
within national limits, not a “desperate situation” (Ozturk and Tanik
1999, 172). Improvements have not been linked explicitly to interna-
tional environmental law, however, and may be a result of other factors,
such as the extraordinary economic downturn in the former Soviet
Union after the collapse of communism.

The program has had serious problems with implementation, including
very slow realization of the commitment to modest funding by the mem-
ber states. At his departure, its first head gave the program an extraor-
dinarily candid evaluation: “The truth . . . is that very little has been
done to fulfill the initial commitment made to the people of the Black
Sea countries when their six legislative assemblies ratified the conven-
tion in 1993. . . . decisions taken through democratic processes have
been disregarded and political momentum has been lost. . . . This sce-
nario is a depressing one” (UNDP et al. 1998).
Some factors linked to successful implementation of international en-
vironmental law are clearly present in the Black Sea regime, not only in
relationship to the specific entity but also in the larger context of insti-
tutional initiatives. The analysis of other elements suggests, at least for
now, slow movement toward international water cooperation in the sea.
“BSEP appears to have contributed little to overall regional awareness
about environmental problems or their solutions, except for people who
have participated directly in the BSEP education and publicity efforts”
(Sampson 1999, 76).
Major barriers to cooperation include the emergence of two types of
inward-looking movements in the region, nationalism and religious fun-
damentalism. Also, the infrastructure for communicating across na-
tional boundaries, even when the intention is established, is very limited
(Sampson 1995). Furthermore, economic conditions hinder the realiza-
tion of the full potentials of the scientific and environmental communi-
ties in the former Soviet states. A leading example is Romania, where
economic problems combined with concerns over sovereignty threaten
to make the Black Sea program largely a “dead letter” (Oldson 1997,
519). Finally, as in many other regional treaties, dispute resolution
methods are not developed.13
There are some other countervailing forces in the region that make
prospects for the refinement and implementation of new regimes more
promising. Among them are:
1. Scientific findings on the nature and scope of the environmental chal-
lenge: The search for better data, more precise models, better equip-
ment to test models, and basic science to underpin the models is an
opportunity for cooperation recognized by most actual and potential
participants in the Black Sea processes. The region has a rich resource
of scientific expertise. Besides, the international community, environ-
mentally progressive nation-states, and U.N. organizations have tar-
geted the Black Sea as an area deserving major contributions of tech-
nical expertise and funding.
2. Shared perspectives: The Black Sea has had immense historical im-
portance for each of the riparians. Common understandings on the
environmental challenge may be more readily achieved than on other
matters of international policy, on which cultural, ethnic, and reli-
gious differences make consensus difficult. Also, there is increasing
interest, shared by each of the riparians, in economic development.
The relative success of the Black Sea Economic Program, a parallel re-
gional effort, demonstrates that trade and commerce may be effective
vehicles for promoting cooperation.
3. Further, the Black Sea regime, at least de jure, recognizes new prin-
ciples of international environmental law. Numerous new NGOs are
rapidly appearing in the region. Removing obstacles to their partici-
pation in decision making may be an effective means for reaching en-
vironmental goals, more so than creating official new government
structures (Laurence D. Mee in UNDP et al. 1998) or adopting addi-
tional agreements. Under evolving national and transboundary legal
systems, this may mean granting legal standing to parties, individu-
als, and NGOs not formerly recognized in the decision-making struc-
tures of some of the member-states.14
4. Epistemic communities may further develop. Epistemic communities
are communities without borders— of scientists, lawyers, engineers,
or other specialists. Their members share core beliefs and under-
standings and have strong alignments with objectives that transcend
An Accounting 109
their affiliation with a political jurisdiction or position (Haas 1990).

In the Black Sea region, at least for certain goals, they may play some-
what the same function as they did in the early years of the Medi-
terranean Action Plan. They may demonstrate how to cooperate on
international matters. They may create new understandings of ap-
propriate responses to environmental degradation, making policy
choices a bit easier for government officials. They may give govern-
ments supporting rationales to take difficult, even unpopular, steps to
control pollution. They may attract much-needed funding as outside
groups become impressed with regional cooperation. They may offer
a means for transferring technology.
The fragility or strength of the BSEP depends in significant part on
the commitment of leaders in the area. These leaders are involved in a
two-level game: one level is international, the other domestic. At home,
there are several constraints on a leader’s ability to cooperate across na-
tional boundaries. The economic and political challenges in the Black
Sea region, with problems of currency devaluation, ethnic conflicts, and
priority setting, serve as significant obstacles to an official’s attention to
water issues. So too does the extreme weakness of the environmental
sector in each of the Black Sea governments (Mee in UNDP et al. 1998,
ii). Significantly, even some MARPOL provisions and those of other
agreements related to oil pollution management have not been imple-
mented in the past several years. With the death of President Turgut
Ozal of Turkey, there remained little political push for Black Sea envi-
ronmental cooperation (Sampson 1999); however, support of environ-
mental protection is now attractive in the region, both to please emerg-
ing green domestic constituencies and for extraregional motives, such as
to gain admission to the European Union and access to the GEF and
other international environmental funds.
Conclusions
BSEP incorporates, at least at a rhetorical level, elements of a new under-
standing of transboundary interaction structured by international envi-
ronmental law. It institutionalizes procedures that can be the core of pro-
ductive linkages among Black Sea nations, the type of ongoing iteration
essential to international cooperation. International law has made a pre-
liminary modest contribution to improving the region’s environmental
quality. Sound environmental management of the Black Sea, however,
remains an immense challenge. It was so under previous regimes, and

there are many reasons to hold only limited expectations about major
shifts under the embryonic international environmental law.
The BSEP has not had ongoing strong NGO involvement from the
parties themselves, and the dispute resolution process has not been
developed. The regime has made environmental impact assessment a
centerpiece as a legal goal, but not in practice. Means of promoting
compliance are nicely stated, but they have not been sufficiently imple-
mented. Furthermore, although entry into the agreement was made easy
in part through the flexibility built into instruments, there is little politi-
cal commitment to even the limited steps necessary to make a difference
on the ground. Additionally, the sometimes embryonic political and le-
gal systems of the parties have made it difficult to monitor actual com-
mitment. Finally, funding has been miserably inadequate, and an effec-
tive secretariat has not yet evolved.
On the positive side, BSEP’s goal-setting has generally benefited from
agreement on the appropriate science to aid in decision making. There
is at least a commitment to the generation of relevant scientific infor-
mation through cooperative means, and a community of Black Sea sci-
entists has at times been useful. Environmental impact assessment and
NGO involvement are formally provided for, giving the regime some po-
tential if other factors can be addressed. External interest in the region,
both for environmental and sociopolitical reasons, also suggests that
funding may become available.
LAND: THE BASEL CONVENTION

The Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and Their Disposal is the major legal response of the
international community to the problems caused by the annual world-
wide production of 400 million tons of wastes that are toxic, poisonous,
explosive, corrosive, flammable, ecotoxic, or infectious. Improper dis-
posal results in soil contamination, underground water degradation
from leachate and runoff, and destruction of habitat for fish and ani-
mals. It is also linked to increased cancer and birth defects (Abrams
1990). Management problems result in large part from the extraordi-
nary gap in the cost of disposal in developed and developing countries
and the serious challenges involved in monitoring movement of danger-
ous wastes.
An Accounting 111
Prior to Basel, there were many scandalous stories of developed coun-

tries’ attempts to get rid of hazardous waste at the expense of developing
nations. The Koko case is one such episode. In 1988 a farm in Koko, a
small town in Nigeria, was used as the dumping ground for 18,000 drums
of waste, including polychlorinated biphenyls (PCBs), asbestos, and per-
haps dioxin, from Italy. The waste arrived, as wastes had been arriving in
other parts of Africa from the United States, France, and other developed
nations, based on an agreement with an unscrupulous businessman. For
about $100 per month he would store the materials on one of his com-
mercial properties. The barrels were labeled as substances “relating to the
building trade, and as residual and allied chemicals.”
An official government response to the illegal dumping followed the
publication of an article in a Lagos newspaper based on a tip by Nige-
rian students. The resulting cleanup led to the hospitalization of many
workers, and one report linked the toxicity at the dumpsite to a cluster
of premature births (Nigeria-Italy Waste Trade n.d.).
To communicate their outrage and to pressure the Italians to remove
the waste, the Nigerians seized control of an Italian ship. The interna-
tional media also placed pressure on Italy to respond. The Italians then
removed the waste from Nigeria. Signifying international censure, one
waste-laden ship was denied entry into the United States and a number
of European ports. It took over a year for the Italians, facing protests at
home over water contamination linked to disposal of the materials, to
find resting grounds for all of the materials.
To prevent the human and environmental toll associated with the
Koko case and others, Nigeria banned the importation of hazardous
waste. Cameroon did the same. In both countries the penalty for violat-
ing this ban is death (Wallace 1994; Ovink 1995 as cited in Hunter,
Salzman, and Zaelke 1998, 860).
Shortly before the Koko contamination, a shipload of hazardous
waste from the United States was caught in a similar international scan-
dal. The Khian Sea left port with 15,000 tons of incinerator ash con-
taining low concentrations of heavy metals from Philadelphia. After be-
ing denied permission to dump its cargo in the Bahamas, the ship moved
on to Haiti. The captain told Haitian authorities that the cargo was fer-
tilizer ash and received permission to unload. One fifth of the cargo had
been put ashore before the Haitians learned what the material was.
Compelled to leave, the ship tried various other ports over an eighteen-
month period but was unable to gain admission. Somewhere along the
way, the cargo was illegally dumped, and the ship arrived in Singapore
unburdened (International Environment Reporter, 14 October 1987,
504; Allen 1995; Gudofsky 1998).
Other cases involve developed nations as victims. In 1983, 41 barrels
of topsoil contaminated with dioxin were found in a barn in northern
France. They were products of a notorious chemical plant explosion
that had occurred in Seveso, Italy, years earlier, materials transported
without notice across European national boundaries (Abrams 1990).
The bizarre world of hazardous waste pollution results from a number
of factors. Few sites are capable of proper disposal of hazardous waste, as
political opposition holds up their construction. Additionally, the nature
of the facilities needed makes sanctioned disposal very expensive. Most
significant, the opportunities for immense profit are considerable, as the
cost of disposal in industrialized nations can be 50 times that in
developing nations (Hunter, Salzman, and Zaelke 1998, 858). Disposal
cost in Africa in the eighties averaged between $2.50 and $50 per ton;
in OECD (Organization for Economic Cooperation and Development)
countries it ranged up to $2,000 per ton (Krueger 1998; Tolba and Rum-
mel-Bulska 1998). In 1988 Guinea-Bissau was offered $600 million, an
amount five times that nation’s gross national product, to accept private
companies’ toxic wastes from Europe and the United States.

In 1982 UNEP addressed the international transportation and disposal
of toxic wastes after a group of environmental experts met in Monte-
video, Paraguay. In 1985 it issued the Cairo Guidelines and Principles
for the Environmentally Sound Management of Hazardous Wastes (Ba-
sic Document 5.3). Two years later UNEP established a draft Conven-
tion on the Transboundary Shipment of Hazardous Waste and created
an ad hoc working group composed of legal and technical specialists.
The group analyzed several UNEP drafts and ultimately developed a fi-
nal recommendation for the Basel Convention. It needed to address both
the strong preference by developing countries for a ban on hazardous
waste transfers from the north to the south and the OECD regulatory
orientation favoring notification and consent. After two years of debate,
34 nations signed the Basel Convention on 22 March 1989. It entered
into force 5 May 1992. By 2002 the number of parties to the convention
had reached 150.
The Basel Convention regulates the transport and disposal of haz-
An Accounting 113
ardous and other wastes and seeks to make transport a matter of public
record. “Hazardous” is defined by the originating, receiving, and tran-
sit countries. The goal is to protect human health and the environment
from the dangers of such wastes. The principle underlying the conven-
tion is that wastes should be disposed of in the state where they were
generated. Basel ultimately seeks to have parties take appropriate mea-
sures to ensure that the generation of hazardous and other waste is re-
duced to a minimum. The convention restates the right of every state to
ban the entry or disposal of foreign hazardous wastes in its territory [ar-
ticle 4(1)], either by reference to categories set out in an annex (1), un-
less they do not possess the characteristics listed in another annex (3),
or if so classified by national legislation (article 1). Exports to Antarc-
tica are prohibited (article 4.6).
Many obligations also apply to “other wastes,” listed in annex 2,
which encompasses household wastes or residue from the incineration
of such wastes (article 1). Radioactive wastes and wastes discharged
from the normal operation of ships so long as they are regulated by
other international instruments are not covered by Basel. Subsequent to
a period of controversy and confusion, the fourth Conference of the Par-
ties (COP-4), in 1998, clarified somewhat which wastes are covered by
the convention so that recyclable materials including scrap paper and
scrap metal are not wastes under Basel.
Other annexes (8 and 9) now list waste by classification. Countries
exercising their right to prohibit the import of hazardous wastes are to
inform the other parties and to provide information on any national
legislation pertaining to the definition of hazardous wastes (article 3).
Each party must prohibit the export of such wastes to any state that
has notified the party of its prohibition (article 4). Under Basel, “dis-
posal” is broadly defined to include not only disposal but also recov-
ery and recycling. Countries may enter regional agreements with non-
party countries. Thus, for example, the United States, although not a
party to the treaty, can continue to trade in recyclable wastes with
OECD countries.
Any waste transported or disposed of in contravention of the con-
vention is considered an illegal traffic and can be made a criminal offense
[articles 4(3), 4(4), and 9], although the convention does not contain en-
forcement provisions and relies on parties to take domestic measures.
Movement of waste is permitted only if the generating state does not
have the technical capacity or sites suitable for its disposal or if the im-
porting state needs the waste as raw material for industries engaged in
recycling or recovery [article 4(9)]. Legal movements of waste must be

tracked by a written document.
A duty to reimport applies when a movement of hazardous waste has
been consented to but “cannot be completed in accordance with the
terms of the contract” (article 8). Article 11 allows transfer of wastes to
parties and nonparties where movements are subject to another appro-
priate bilateral, multilateral, or regional agreement.
The Conference of the Parties reviews implementation of the agree-
ment and promotes harmonization of waste management policies (ar-
ticle 15). Dispute resolution takes place through any means the parties
choose. The convention allows the parties to agree to submit their dis-
putes to the International Court of Justice or to arbitration as provided
in annex 6 (article 20).
Article 15 provides for representation: “The United Nations, its spe-
cialized agencies, and States not party to the Convention, may be ob-
servers at meetings of the Conference of the Parties. Other national, in-
ternational, governmental, or non-governmental organizations that are
qualified in fields relating to hazardous wastes may be admitted as ob-
servers after informing the Secretariat, unless at least one-third of the
parties present objects.”
The convention specifies a preference that amendments be adopted
by a consensus at a meeting of the Conference of the parties, but if that
should prove elusive, amendments may be adopted by a three-fourths
majority of the parties present and voting (article 17). A further excep-
tion is that adoption may also be achieved by two thirds of the parties
to the protocol to be amended who are present and voting [article
17(4)]. After adoption, amendments must be ratified by a specified pro-
portion (three fourths or two thirds, respectively) of the parties who
voted to subject themselves to its provisions.
Decision 3/1 is the most controversial amendment that emerged from
the decision at COP-3 to ban hazardous waste exports for final dis-
posal from OECD, the European Community, and Liechtenstein (an-
nex 7 countries) to nonannex 7 countries. That decision would also ban
exports intended for recovery and recycling. To enter into force, the
1995 amendment must be ratified by the 62 parties present at the time
of its adoption. Initial movement was slow, with only 8 countries ratify-
ing in the first three years. The Protocol on Liability and Compensation
for Damage Resulting from Transboundary Movements of Hazardous
Waste and Their Disposal was adopted by the parties at COP-5 in Basel
in December 1999. At that time, the ministers declared minimizing haz-
ardous wastes a major focus for the decade 2000 –2010.
An Accounting 115

The actual effects of Basel on the movement of hazardous waste are dif-
ficult to ascertain. A main source of information is the UNEP Secretariat
of the Basel Convention, which reports on data supplied by the parties.
The Secretariat cautions that “due to the differences in national defini-
tions of hazardous wastes, variations in national reporting and the diffi-
culties in comparing the quality and availability of accurate data, figures
presented are not directly comparable” (Basel Convention 1998). For
the reporting year 1998, the Secretariat noted that of the 74 parties that
provided information, 47 supplied data on the export of hazardous and
other wastes, 20 reported that no export took place from their coun-
tries, and 23 parties gave figures for import of wastes. Total wastes ex-
ported were 4,114,722 metric tons; the import figure was 3,816,232
metric tons. The export data indicate that of the wastes that moved
worldwide, 10 percent went for disposal and 83 percent were recycled.15

Assessment of Basel has been mixed, although recent activities of the
Conference of the parties generally have been supported.
On the negative side, in a thorough and balanced assessment, Gudof-
sky (1998, 285) concludes that although Basel is “the backbone of the
international waste regime. . . . The Parties . . . have been gradually mov-
ing away from developing a unified system for controlling wastes and
have instead bifurcated the system by creating one group of countries . . .
that are entirely inaccessible to another group.” Further, insufficient at-
tention has been paid to recycling and recovery. In general, the conven-
tion has been widely criticized for being “curiously ambivalent on the
question of distinguishing hazardous wastes that were being exported
for purposes of final disposal (e.g., landfill or injection) from those that
were destined for reclamation, recycling or other methods of resource
recovery” (O’Reilly and Cuzze 1997, 515). Some parties recognized po-
tential benefits of recycling, others predicted “sham recycling.”
The convention fails to address the principle of liability both with re-
gard to actors (generator, exporter, receiver) and with regard to type
(fault-based or strict liability) (Hackett 1990; Schneider 1996; and
Hunter, Salzman, and Zaelke 1998). Parties supposedly were to cooper-
ate to develop a protocol to establish rules and procedures for liability
and for damages arising from the transboundary movement of haz-
ardous wastes (article 12); however, Basel does not comprehensively an-
swer the question of who should pay for damages (Hackett 1990). Crit-
ics question the wisdom of imposing fault on nation-states rather than on
multinational corporations that violate the convention. A more effective
regime would focus on building capacity to help all countries to manage
and dispose of wastes safely rather than on the relatively rare sensational
incidence of illegal transboundary transport (Hunter, Salzman, and
Zaelke 1998). Furthermore, the Secretariat based in Geneva has limited
supervisory functions and is underfunded (Krueger 1998), and the Trust
Fund established in 1992 suffers from late and missing payments.
Moreover, aspects of the convention counter the overall objectives of
the agreement. For example, the preamble includes vague language:
“Convinced that hazardous wastes and other wastes should, as far as is
compatible with environmentally sound and efficient management, be
disposed of in the State where they are generated” and “Taking into ac-
count also the limited capabilities of the developing countries to manage
hazardous wastes and other wastes.” Similar phrases appear throughout
the agreement: “take such steps as are necessary” [4(2)(c)], “to the max-
imum consistent with the environmentally sound and efficient manage-
ment of such wastes” [4(2)(d)], “shall take appropriate legal, adminis-
trative and other measures” [4(4)], “in accordance with other criteria to
be decided by the Parties” [4(9)(c)]. The definition of hazardous waste
itself is problematic since the convention allows nation-state variability
in definition.
The convention’s early versions were laden with such ambiguities and
loopholes. The classification scheme for wastes is susceptible to diver-
gent interpretation and engenders confusion (Schneider 1996, 268), al-
though at COP-4 a list drawn up by a technical working group was ac-
cepted. There is insufficient involvement of NGOs (Schneider 1996) and
no executive body for enforcement (Jaffe 1995). Cusack (1990, 420) has
been wide-ranging in criticism: “The Basel Convention has legitimized
the international toxic waste game and proclaimed industrial nations
the winners. . . . Supporters . . . are not challenging the fundamental
bipolar economic inequities that force Third World nations to accept
shipment of toxic wastes.”
Furthermore, the ban under decision 3/1 does not reflect a true con-
sensus among developing countries. It unreasonably assumes that all
non-OECD countries are and will remain incapable of processing re-
cyclable wastes (Grout 1999), leading some countries and analysts to
conclude that needy economies will be deprived of the benefits of re-
An Accounting 117
ceiving imported wastes that can be economically and safely recycled

(Waugh 2000). These countries are joined here by some environmental-
ists who bemoan the possible decline in recycling, including forcing the
use of virgin materials. Business interests also conclude that revisions are
necessary to make clear which are “benign wastes” that can be exported
(O’Reilly and Cuzze 1997). Finally, a ban on trade in recyclable wastes
may violate important trade principles (Grout 1999) as a nonenviron-
mentally based barrier.
On the positive side, “It is generally accepted that the Basel Conven-
tion has helped to eliminate the most harmful of international hazardous
waste transfers destined for final disposal,” and some environmentalists
characterize the “Basel Ban” as the most significant environmental
achievement since the Rio Earth Summit in 1992 (Krueger 1998). There
now is international consensus that rich countries should not send haz-
ardous wastes to poorer countries for final disposal.
Other assessments of Basel praise the scope of its objectives. Because
its scale includes a large number of countries, world economic forces
and political pressures favor compliance. Also, the regime establishes a
framework for a common definition for hazardous waste. Compliance
with the tracking system for waste meeting the Basel definition is en-
forceable under domestic law of the party in which the international
transportation of hazardous waste was instigated. For example, individ-
uals illegally exporting hazardous waste from the United States to an-
other country are subject to U.S. criminal law. Under this system two
men who knowingly exported hazardous waste from the United States
to Pakistan without obtaining the required consent from the importing
country were convicted by a U.S. federal jury for violations of the U.S.
Resource Conservation and Recovery Act (Henry Weinstein 1993). This
enforcement system was employed and convictions achieved even
though the United States is not a party to the agreement.
Tolba and Rummel-Bulska (1998, 116), active leaders in the Basel ne-
gotiations, conclude: “We believe a reasonable goal was achieved: a flex-
ible treaty that can be amended or adjusted in view of new facts or new
information.”
“Positive,” of course, is a relative term. The Secretariat reported in
October 1999 on the “growing commitment of the Parties to report on
articles 13 and 16 of the Convention.” The evidence was the 63 re-
sponses received by late 1999 to a 1997 questionnaire seeking informa-
tion on, among other items, transboundary movements, measures for
implementation of Basel, and sources of advice and expertise. The num-

ber of responses grew to 74 parties for 1998; thus, just over half of the
total number of parties met the modest commitment of reporting.
Conclusions
By regulating the transport of hazardous waste and requiring prior
informed consent from importing nations, the Basel Convention facili-
tates the collection of information on the location of dangerous material.
Although it does not reflect a true consensus and it contains a number
of ambiguities, Basel provides an increasingly standardized definition of
hazardous waste and a clear mechanism for determining enforcement
jurisdiction. Its Secretariat has performed its modest obligations rela-
tively effectively. The convention itself is designed to allow ease of en-
try. More difficult issues are subject to later amendments by parties
who find its goals palatable. Nongovernmental organizations have not
been uniformly pleased with Basel’s progress, but they have de jure been
given rights as observers. The Basel Convention does not yet, however,
protect developing countries from the risk of becoming colonized by
other people’s hazardous waste. Nor does it substantially alter the eco-
nomic incentives that make such a scenario attractive to unscrupulous
individuals. It does not fully address the polluter-pays principle. Nor
does it utilize the most advanced understandings of the law’s compliance-
promoting potential.
Despite its initial enthusiasm and its early signing of the Basel Con-
vention, as of December 2001 the United States has not yet enacted do-
mestic implementing legislation. Here as in other areas of international
law, the question arises whether a treaty bypassed by the world’s lead-
ing power can be effective. In the case of Basel, considerations are
unique and countervailing. Because the United States is responsible for
such a large proportion of the world’s hazardous waste [e.g., in 1995 it
produced 279 million tons of hazardous waste and exported 226,000
tons of it (U.S. EPA 1998)], its failure to ratify the Basel Convention can
undermine the treaty’s potential to operate effectively. In any event, re-
fusal to participate weakens the ability of the United States to influence
international environmental law on waste transport.
The absence of the United States may also reduce the amount of haz-
ardous waste that can be legally transported across national boundaries.
Recall that parties to the Basel Convention are prohibited from trans-
porting hazardous waste to or from nonparties unless a separate agree-
An Accounting 119
ment with the nonparty has been made. Such agreements must be com-
patible with the Basel agreement if they predate Basel, or they must re-
quire procedures that are more stringent than Basel if they postdate
Basel. Parties are required to notify the Basel Secretariat of the existence
of agreements between parties and nonparties. Where agreements or
arrangements have not been made, the nonparty status of the United
States prevents the possibility of legal transport of hazardous waste be-
tween the United States and other nations. The United States has entered
into a multilateral agreement among OECD countries regarding recy-
clable wastes and bilateral agreements with Canada, Mexico, Malaysia,
and Costa Rica (U.S. EPA 1998).16
Incentives for U.S. ratification are limited. Only 1 percent of U.S. haz-
ardous waste is exported, and 95 percent of that 1 percent goes to Can-
ada and Mexico. Ratification may make the United States more suscep-
tible to private legal actions both by domestic parties and foreign
plaintiffs under the Alien Tort Statute (Rogus 1996). Changes in do-
mestic law needed prior to ratification (including in the U.S. Resource
Conservation and Recovery Act) are complex and cumbersome.
GENERAL ENVIRONMENTAL PROTECTION AND

ENFORCEMENT: THE NORTH AMERICAN AGREEMENT
ON ENVIRONMENTAL COOPERATION
Pressure groups, including environmental NGOs, linked the interna-
tional trade of goods and services to environmental degradation, if not
disaster, during negotiations for the North American Free Trade Agree-
ment (NAFTA) among Canada, Mexico, and the United States. In re-
sponse to these concerns, the North American Agreement on Environ-
mental Cooperation, or the Environmental Side Agreement, was entered
at the same time as NAFTA (DiMento and Doughman 1998).
NAFTA and the Environmental Side Agreement were developed in
the face of growing concern about the effects on the environment of lib-
eralized international trade. One fear was that environmentally insensi-
tive growth would become unstoppable, especially though not exclu-
sively at national borders. A second worry was that green firms would
be less competitive than nonconcerned businesses, thereby weakening
incentives for compliance. Also, national laws and policies would be
compromised by trade liberalization, a fear exacerbated by the 1991 rul-
ing by the GATT dispute-resolution panel on the tuna and dolphin
case. The panel declared that the U.S. Marine Mammal Protection Act,
intended to protect dolphins from harm from certain kinds of nets used
in tuna fishing, constituted an unacceptable barrier against Mexican
trade. In addition, trade liberalization raised the possibility that pollut-
ing industries would flee jurisdictions with high environmental stan-
dards for lax jurisdictions, resulting in a net increase in pollution from
a global perspective and greater unemployment in communities intent
on protecting air, water, and soil from contamination.
Despite controversy, negotiations for NAFTA were completed in Au-
gust 1992. Signed four months later, NAFTA created the world’s largest
free trade zone, containing 370 million people and more than $6.5 tril-
lion in goods and services each year.17 Reflecting political pressures,
NAFTA was the first trade agreement to address the environment di-
rectly. It contains provisions governing environment and investment [ar-
ticles 1114 and 2101(3)], food and safety standards (chapter 7), and
other environmental standards (chapter 9). It also lists three interna-
tional environmental agreements that take precedence over NAFTA,
particularly in regard to dispute resolution procedures (article 104).
These are the Montreal Protocol, the Convention on International Trade
in Endangered Species, and the Basel Convention on Hazardous Wastes.
Many influential environmental groups felt that NAFTA had not ad-
equately addressed environmental issues.18 In addition, the processes set
up under NAFTA were seen as insufficiently transparent and represen-
tative and, therefore, undemocratic (Greenpeace 1993). Some environ-
mentalists began shifting focus to negotiations for the side agreement,
seeing it as a vehicle to remedy some of NAFTA’s omissions.

William Clinton, as the U.S. president-elect, had promised to negotiate
and sign the environmental (and a labor) side agreement before the
promulgation of NAFTA (Winham 1994). With divided environmental
group support, Canada, the United States, and Mexico signed the
NAFTA Environmental Side Agreement on 13 September 1993. Subse-
quently, NAFTA and the side agreements were ratified and promulgated
by the legislatures of the parties.
The objectives of the environmental agreement are general and broad
and are carried out through several distinct programs. The goals are to
foster protection and improvement of the environment, to promote sus-
tainable development based on cooperation and mutually supportive en-
vironmental and economic policies, and to increase cooperation to better
An Accounting 121
conserve, protect, and enhance the environment. To further those objec-

tives, the Environmental Side Agreement establishes the Commission for
Environmental Cooperation (CEC), composed of a council, the Joint
Public Advisory Committee (JPAC), and the Secretariat. The CEC Coun-
cil consists of one cabinet-level (or equivalent) representative from each
party. The JPAC is responsible for facilitating public participation and
communication regarding CEC activities. It consists of fifteen presiden-
tial appointees, five from each party. The Secretariat is the administrative
arm of the CEC. It is responsible for implementing the agreement, in-
cluding undertaking studies and assessments and overseeing the consid-
eration of submissions (as specified in articles 14 and 15) asserting that a
party “is failing to effectively enforce its environmental law.” Such sub-
missions are a form of complaint made by private citizens and NGOs.
The most severe penalty under this NAFTA procedure, if such an asser-
tion is substantiated, is release of a factual record to the public. “Factual
record” is not defined in the agreement, but in practice it has contained a
summary of the submission, a summary of the challenged party’s re-
sponse, a summary “of all other relevant factual information,” and an-
nexes that give a chronology of the case and maps of the area involved.
Part 5 of the side agreement provides for a party to allege that there has
been a persistent pattern of failure by another party to enforce its envi-
ronmental law effectively. Under it, a party could be fined and ultimately
denied NAFTA free trade privileges up to the amount of the unpaid fine.

“Many environmental indicators in the North American region are
worsening, and these alarming trends are particularly evident at the
U.S.-Mexico border, an area that figured prominently in the political de-
bate leading to NAFTA’s adoption,” summarized a leading student of
NAFTA institutions. Mumme noted, however, that the chain of causa-
tion is not easily tied to NAFTA’s Environmental Side Agreement. The
situation may be due more to economic and social trends already at
work in 1994. NAFTA, he notes, strengthened governmental commit-
ments to environmental protection within the North American region,
“commitments that otherwise might not have been attainable” (Mumme
and Sprouse 1999).
An analysis of physical effects of an international instrument as gen-
eral and as complex as the side agreement must rely on approximations
and models and relationships that can be described in theory but not
empirically by means of convincing statistics. Data can be compiled, but

they say very little about the influence of an agreement that is not spe-
cific to a particular place or physical resource. Some information, how-
ever, is available. The CEC did conclude that pollution releases from in-
dustrial sites in Canada and the United States increased 1.2 percent from
1995 to 1997, reversing progress seen in earlier years. Direct releases de-
creased 9 percent, but transfers of toxic pollutants to offsite facilities for
treatment rose 27 percent. (Braninga 2000). Such data, however, are vir-
tually irrelevant to the analysis of the side agreement’s effects.
The CEC’s own attempt to address the impact of NAFTA on envi-
ronmental parameters resulted in a highly intricate description of pos-
sible relationships in an early report and a set of evaluative papers in
2000. These papers addressed fisheries, the forestry sector (including the
export of finished wood products), North American air pollution, trans-
boundary shipment of hazardous wastes, and wastewater treatment.
Again, limited access to data and the complexities of the links made for
few convincing conclusions. For example, regarding fisheries, one paper
(Chomo and Ferrantino 2000) concluded that NAFTA “could have ei-
ther a positive, negative, or negligible environmental impact.” The pa-
per on forests was somewhat more conclusive, reasoning that tariff elim-
ination under NAFTA itself would have a degrading effect on Mexican
forests and that the industry likely will oppose national forestry regula-
tions in order to stay competitive. Some commentators concluded that
the NAAEC framework was not sufficiently developed to fulfill the side
agreement’s mandate to protect the North American environment.
The side agreement submission process is likely to have little direct
impact on environmental quality. Bugeda (1999) cites as an example the
Cozumel case, which involved challenges under article 14 to the con-
struction of a 1,800-foot pier for luxury cruise liners near a coral out-
cropping off the Yucatan Peninsula. Environmental groups charged that
the project was initiated without a declaration of environmental impacts
and was located within the limits of a protected coastal zone. The re-
lease of the factual record “had very little impact on the environmental
community, and none whatsoever on the tourist project in Cozumel.”
Assessment: Contribution to International Environmental Law

Assessment of the NAAEC has been mixed, with an initial criticism of
its weaknesses evolving into a conclusion that if looked at broadly, its
An Accounting 123
effects on environmental cooperation and ultimately on the North

American environment may be positive.
There are several noted weaknesses of the agreement. Its definitions
of “environmental law” are problematic; most important, it excludes
laws regulating the harvesting of natural resources. The agreement is
unclear as to whether strip mining, soil conservation, energy extraction,
coastal fishing, and sustainable timber harvesting are included or ex-
cluded (Charnovitz 1994b, 267). In general, submissions on timber har-
vesting have been ruled to be outside CEC purview, but submissions re-
garding coastal fishing have not been rejected on such grounds.19 In
1999 a submission against the United States was filed, linking timber
harvesting to the death of migratory bird species, and a factual record
was ordered.20
The term “failure to effectively enforce” has created implementation
challenges, and the submission process has generated several citizen ini-
tiatives but relatively little action by governments.21 Applying definitions
internationally also raises challenges. A government is the expert on its
own law (Charnovitz 1994b). A dispute system based on second-guessing
a country’s conclusions involves complex matters of judgment. A reason-
able exercise of prosecutorial discretion and deference to bona fide re-
source allocation decisions are allowed under the agreement; however,
this deference makes it more difficult to demonstrate noncompliance
(280). In practice, the submission process has provoked Mexican, Cana-
dian, and U.S. government opposition in which they deny its applicabil-
ity to the issues involved.
The general nature of certain duties under the agreement also makes
judging implementation difficult. An example is the obligation to
“strengthen cooperation on the development and continuing improve-
ment of environmental laws and regulations.” Other duties are discre-
tionary: the agreement lists eighteen issues for which the council may
consider and develop recommendations (Charnovitz 1994b, 263). Fur-
thermore, the principles laid out in the preamble to the agreement con-
flict; they “reflect the intrinsic difficulty of integrating environmental
concerns into international trade law” (Johnson and Beaulieu 1996,
141). Vague language such as that indicating that the council “may con-
sider and develop recommendations” also is a barrier to tracking suc-
cessful implementation.
Because of differences in domestic environmental law in the three
countries, determinations of harmonization and of the failure to enforce
are problematic matters for international organizations. What is “down-

ward movement” in environmental protection, which the agreement is
intended to counter, when the law requires environmental assessment or
lays out procedural rules for participation?
Support for development of NAFTA side institutions has been lim-
ited. Agency positions within the United States about the value of, and
means of implementing, the agreement are ambivalent and mixed. There
is strong interest in protecting domestic missions, including the State
Department, the United States Trade Representative, and the Environ-
mental Protection Agency. The political side, in efforts both to shield
ministers from demanding, overly sensitive or overly powerful positions
and to protect against unacceptably independent acts of the CEC Coun-
cil, has constrained the ministers. Many government officials in fact are
not bothered by slow institutional development. Some American envi-
ronmental and labor groups saw in NAFTA “the first hemispheric link
between trade and social policy,” but governments, Mexican officials in
particular, felt that an American social agenda was forced on them.
Greater integration such as in the European Community is not a goal
(Economist, 18 February 1994).
Experts criticize the absence of independence of the Secretariat
(Charnovitz 1994b, 265; Hogenboom 1998, 221), failure to make clear
whether the council or Secretariat has a legal personality such as exists
for other international organizations, and failure of the organizations to
act independently of governments. The provision for citizen submissions
diminishes the control that the CEC has over the types of issues that it
must address, exposing it to more criticism than if regulation were lim-
ited to governments (Mumme and Duncan 1998, 11). Finally, the CEC
has no explicit role in the important work of the NAFTA committees on
sanitary and phytosanitary measures and standards-related measures.
The enforcement strategies incorporated in the agreement are soft
teeth, but opinion differs on whether such soft teeth are necessary for the
agreement to be successful. A representative of the World Wildlife Fund
concluded that “NAFTA’s so-called teeth are small, soft, and way in the
back of the mouth,” and that is how it should be (International Envi-
ronment Reporter, 16 December 1994, d3). Stone (1999), however,
finds the sanctioning mechanism possibly “worse than weak; it may ac-
tually provide perverse incentives. A Party that toughens its laws in-
creases the risk of being judged a persistent non-enforcer.” The enforce-
ment approach is “more like a tunnel hole . . . than a loop hole” (Lavelle
1994). Further, the NAFTA regime offers a strong defense for enforce-
An Accounting 125
ment laxity. Mexico can argue that its failure to enforce the law results
from a commitment of its limited resources to more pressing problems.
Imposing trade sanctions against a country that failed to enforce its en-
vironmental laws is a protracted and cumbersome process (Charnovitz
1994b, 270); it takes, at a minimum, 755 days from the initiation of a
complaint. Even then the agreement lacks any real commitment to ac-
tion beyond consultation. Nonetheless and somewhat ironically, both
private environmentalists and the JPAC expressed grave disapproval to
the CEC of “secret negotiations” in 1999 over possible change in the
guidelines for submissions under articles 14 and 15 on enforcement
matters. Although flawed, the guidelines could only be made weaker by
party intervention without involvement by the NGO communities.22
Facing the strong and nontransparent dispute resolution processes
under NAFTA proper, the side agreement does not achieve a balance be-
tween promoting trade and protecting the environment. The NAFTA
processes allow companies to challenge imposition of environmental
protections that they interpret as disguised barriers to trade. If such bar-
riers are found by an appointed panel, the government enforcing those
rules faces significant costs, payments that would not be likely under do-
mestic laws on infringement of property rights.23
By other, positive accounts, the side agreement is an initiative that
meets critical criteria for effective international environmental law.
The submission process does focus international attention on the en-
vironmental records of the parties. Although specific CEC conclusions
may not dramatically affect the outcome of any one case, the attention
that Mexico, Canada, and the United States receive regarding enforce-
ment positively influences their decisions regarding environmental pro-
tection. Submissions can also foster cooperation among challenging en-
tities. Jointly, Canadian, Mexican, and U.S. NGOs have brought several
of the CEC complaints. What’s more, although individual challenges
may lack merit or be considered trivial (one asserted that the construc-
tion of a paved, multipurpose bicycle path through the Jamaica Bay
Wildlife Refuge, in Queens, New York, will “destroy critical habitat for
endangered and threatened species and . . . result in the taking of mi-
gratory birds”), the dozens of actions add up to a report card and force
governments to review environmental policy implementation. If the par-
ties make even a modest commitment to continuing implementation, the
agreement “will directly and durably undermine the idea that environ-
mental enforcement is a reserved domestic jurisdiction solely with the
exclusive sovereignty of the parties. . . . That is not very far from saying
that environmental policy is no longer a strictly sovereign matter within

the NAFTA area” (Johnson and Beaulieu 1996, 257).
Cooperative activity that the agreement has engendered may be more
significant than the submission process. The side agreement has potential
to make a contribution to environmental protection in North America by
focusing on matters other than immediate physical change or number of
cases filed. Its organizations facilitate environmental problem-solving by
state and local governments and NGOs, providing them with modest
amounts of money, expertise, and organizational capacity. Its institu-
tions allow for a degree of influence for the previously unheard, such as
Mexican farmers (Wilder 2000). The CEC has promoted several joint ef-
forts among enforcement officials. For example, it has helped enforcers
control illegal big game hunting and game farming, understand better the
legal framework for hunting in North America, and find ways to counter
import and export fraud and smuggling. The CEC has brought together
promoters of organic agriculture to promote sustainable crops, such as
shade-grown coffee. The agreement also helps development of epistemic
communities that have worked on plans for pervasive environmental
contaminants and studies of means to protect ecosystems.
Conclusions
The Environmental Side Agreement, one part of the institutional
arrangement that evolved from the NAFTA considerations, has achieved
some important goals and retains a promise for achieving greater envi-
ronmental protection. Several factors help explain its relative success. It
has benefited from the parties’ agreement on appropriate science to aid
in decision making and the generation of scientific information through
cooperative efforts. It has allowed for considerable NGO involvement.
It has taken environmental impact assessment seriously, both in its con-
stituent actions, including review of a party’s activities when challenged
under submissions, and also as a fundamental element of the regime’s
architecture: the environmental impacts of NAFTA, difficult to concep-
tualize let alone measure, are nonetheless a fundamental spotlight of the
CEC’s concerns.
To the extent that the agreement has been disappointing, certain fac-
tors have been at play. NGO involvement in the public advisory com-
mittee has been inefficient at times. The means of promoting compliance
that NGOs emphasize are not innovative. Rather, they rely on a cum-
bersome adversary process with almost meaningless sanctions, them-
An Accounting 127
selves highly improbable in most cases. Furthermore, the goals of the

agreement, while clear, are imprecise. Although entry into the agree-
ment was not a major obstacle to its creation, the provincial legal sys-
tem of Canada has made that country’s participation less than smooth.
Finally, while funding has been adequate to help assemble a relatively ef-
fective Secretariat, it is insufficient for achieving the comprehensive
goals of the agreement.
GLOBAL CLIMATE CHANGE

Sources of greenhouse gases contributing to global climate change are so
numerous that they are virtually uncountable. The effects of global cli-
mate change are just beginning to be felt. The causal links among emis-
sions, climate destabilization, and environmental damage have only re-
cently become matters of scientific consensus. Impacts, which include
some benefits, are relevant to most peoples of and places in the world.
Institutions at several levels of government and many nongovernmental
organizations have now recognized climate change as an international
problem.
Correlates of climate change, including carbon dioxide and other
greenhouse gases (methane, nitrous oxide, CFCs, HFCs, PFCs, sulfur
hexafluoride), as well as black carbon soot, have increased substantially
in the last hundred years. With these higher concentrations have come re-
ductions in the flow of infrared energy to space. Thus, the earth receives
somewhat more energy than it radiates. In the long run, the earth must
shed energy into space at the same rate that it absorbs it from the sun.
Climate change can be driven by an imbalance between the energy the
earth receives from the sun, largely as visible light, and the energy it
radiates back to space as invisible infrared light. The “greenhouse ef-
fect” is caused by the presence in the air of gases and clouds that ab-
sorb some of the infrared light flowing upward and radiate it back
downward. The warming influence of this re-radiated energy is op-
posed by substances at the surface and in the atmosphere that reflect
sunlight directly back into space. These include snow and desert
sand, as well as clouds and aerosols. (Jacoby, Prinn, Schmalensee
1998, 56)
Estimating the effects of greenhouse gases on the earth’s weather and
climate systems is complex, and even now some of the assessment
remains controversial. Nonetheless, advances in the science and tech-
nology underlying climate models have facilitated consensus building

within the scientific community, although more research is needed be-
fore regional climatic surprises can be more confidently predicted (IPCC
1995, sec. 2.12). There is still some debate over the extent of change in
global temperature that is man-made, but there is no serious doubt that
“the balance of evidence suggests a discernible human influence on
global climate” (IPCC Working Group I 2001). Knowledge about the
dynamics of climate change is converging, although questions about
what interventions will be successful over what periods of time generate
serious disagreements across scientific disciplines, including in the social
sciences, and across parties.
In 1988 the U.N. Environment Programme (UNEP) and the World
Meteorological Association (WMO) created the Intergovernmental
Panel on Climate Change (IPCC) to assess available information on
global climate change.24 In its Second Assessment Report, released in
1995, the panel concluded that the global average surface temperature
had increased 0.3– 0.6 degrees Celsius and sea level had risen 10 –25 cm
in the twentieth century (IPCC 1995, sec. 2.4). The IPCC then predicted
that global average temperatures would increase by about 1–3.5 degrees
Celsius and sea level would rise by 15 –95 cm in the next hundred years.
For the next century (from 1990 to 2100) the range of predictions based
on recent assessments was: temperature increases of 1.9 –2.9 degrees
centigrade and sea level rises of 46 –58 centimeters. These changes are
predicted to increase the number of heat-induced deaths, the spread of
disease, threats to food security, water resource problems, and a decline
in the viability of important natural ecosystems (IPCC Working Group
II 1995). By 2000 in the Third Assessment, the report had changed its
prediction to an increase of 1.5 – 6 degrees centigrade by 2100, almost
twice the previous IPCC predictions.
The effects of global climate change may actually be aggravated by
progress in the control of other emissions. The Global Environment
Outlook (1997, 228) reported that if emissions of gases associated with
acid rain were reduced while those of greenhouse gases were not, “de-
creasing sulfur dioxide particle concentrations would ‘unmask’ the
warming caused by greenhouse gases, leading to even greater increases
in global temperature affecting both industrial and developing nations.”
Levels of greenhouse gases in the atmosphere have increased substan-
tially since about A.D. 1750: carbon dioxide from 280 to 360 parts per
million by volume, methane from 700 to 1,720 parts per billion by vol-
ume, and nitrous oxide from 275 to about 310 parts per billion by vol-
ume (IPCC 1995, sec. 2.3).
An Accounting 129
Developed countries have played the leading role in emissions linked

to climate change. A major cause has been the burning of fossil fuels. In
1990 the United States was responsible for roughly a quarter (23 per-
cent) of global carbon emissions each year. The European Union con-
tributed another 13 percent. The total contribution of industrialized na-
tions, which account for one fifth of the world’s population, was about
two thirds of the total global emissions of carbon dioxide.25
U.S. emissions of carbon dioxide per unit of gross national product
(GNP) are greater than all other nations, except China if GNP is mea-
sured in purchasing power parity exchange rates (World Resources In-
stitute 1996).26 Many developing countries have rain forests that pro-
vide important carbon absorption functions in the global climate system
(sometimes called sinks). Nonetheless, developing nations are expected
to release a growing proportion of global greenhouse gas emissions in
the coming decades. China alone will emit more of these gases by the
end of the century than the whole world does today.
The International Environmental Law Response

Over the last few decades scientific and political debate on climate
change has influenced and been catalyzed by milestones in the creation
of an international legal response. The perception of an emerging scien-
tific consensus on the existence and severity of the problem, the possi-
bility that multinational corporations may profit through the manufac-
ture and sale of innovative clean technology, and the political willingness
of some historically egregious emitters of greenhouse gases (e.g., devel-
oped countries) to commit to legally binding reductions of emissions
have influenced the development of the international response.
In 1979 the concern among scientists regarding global climate change
prompted the WMO and other international organizations to sponsor
the First World Climate Conference, held in Geneva. Its focus was sci-
entific modeling of the potential effects of global climate change on nat-
ural resources (such as agriculture, fishing, forestry), hydrology, and ur-
ban life. Conference participants endorsed the “Declaration of the
World Climate Conference” (IUCC 1979). The declaration stressed the
role of carbon dioxide in global warming and identified the leading
causes of its release into the atmosphere (e.g., the use of fossil fuels and
deforestation). Furthermore, it asked that governments around the
world “prevent potential man-made changes in climate that might be
adverse to the well-being of humanity.” Conference participants also
supported the WMO suggestion to establish a new program for cli-
mate research. This suggestion led to the creation of the World Climate
Programme.
In 1987 the World Commission on Environment and Development,
formed by the United Nations General Assembly, issued Our Common
Future (the Brundtland Commission Report). In its wake the IPCC built
on the World Climate Programme foundation, endorsing sustainable de-
velopment. Popular concern over global climate change grew from other
events, including the success of the Montreal Protocol, the North Amer-
ican heat wave and drought in 1988, press coverage of the concept
(Time magazine named Earth the “Planet of the Year”), a number of im-
portant consensus-building international conferences, the release of the
IPCC’s First Assessment Report in 1990 (Bodansky 1997a), and, in
1998, the devastation caused by Hurricane Mitch in the Caribbean and
Central America (COP-4 1999).
The Second World Climate Conference, held in November 1990 in
Geneva, attracted 137 nations and the European Community. It marked
the arrival of global climate change on the worldwide political agenda.
Participating nations were unable to endorse specific targets for reduc-
ing emissions, but they did agree on a number of concepts, including the
view that global climate change is a “common concern of humankind”
and that equity and the principle of “common but differentiated re-
sponsibilities” should figure prominently in future negotiations. They
also endorsed the precautionary principle, an evolving notion of pre-
ventive policy, and stressed the importance of sustainable development.
The “Declaration of the Second World Climate Conference” recorded
these and other areas of agreement.
In December 1990 the United Nations General Assembly created the
Intergovernmental Negotiating Committee (INC) for the Framework
Convention on Climate Change (FCCC). One hundred and fifty nations
signed up. The INC was charged with producing a draft consensus doc-
ument in time for the 1992 Rio Conference. They had less than a year
and a half to make their deadline.
Through the five negotiating sessions of the INC, several innovative
policy mechanisms were proposed. A carbon tax imposed by each mem-
ber state, emissions trading, and joint implementation 27 were among the
most important and popular, although controversial, ideas. Fairness
questions arose over each of these proposals. The negotiations proved
too contentious to enable the INC to include firm limits on emissions by
the time of the Rio Conference. Most prominently, the United States re-
fused to agree to stabilize emissions at 1990 levels by the year 2000.28
An Accounting 131
Conflicting interpretations of the science underlying global climate

change were used to justify changes in the policy stances of the United
States and some nation-states.
At Rio the great majority of participating parties adopted the frame-
work. Delegates from 154 nations signed the convention, characterized
by a nonbinding aim to reduce greenhouse gases. But the initiative was
weakened by the United States position on an abatement target. The
framework did include the idea that global climate change was a “com-
mon concern of humankind” and that equity, “common but differenti-
ated responsibilities” (article 3.1), sustainable development, and the pre-
cautionary principle should characterize any international response.29
Common but differentiated responsibilities were assigned according
to the leadership principle (article 4.2.a):
Each of these Parties shall adopt national policies and take corre-
sponding measures on the mitigation of climate change, by limiting
its anthropogenic emissions of greenhouse gases and protecting and
enhancing its greenhouse gas sinks and reservoirs. These policies and
measures will demonstrate that developed countries are taking the
lead in modifying longer-term trends in anthropogenic emissions
consistent with the objective of the Convention.
As international leaders, developed countries (also referred to as annex
1 parties) 30 were expected to provide the “agreed full incremental cost”
of developing countries’ treaty compliance, including money for the
transfer of technology (article 4.3). Furthermore, the signatory nations
agreed that annex 1 parties would adopt policies and measures to re-
duce greenhouse gases “with the aim of returning individually or jointly
to their 1990 levels of these anthropogenic emissions of carbon dioxide
and other greenhouse gases not controlled by the Montreal Protocol”
(article 4.2.b). For developing countries, the FCCC encourages volun-
tary commitments to reduce greenhouse gas emissions (article 4.2.g).31
In addition to the leadership principle, the FCCC holds that response
measures “should be cost-effective so as to ensure global benefits at the
lowest possible cost” (article 3.3). The framework also recognizes that
greenhouse gas emissions can be “addressed” through “the conserva-
tion and enhancement, as appropriate, of sinks” (article 4.1.d).32
Following the entry into force of the FCCC in May 1994, the Confer-
ence of the Parties process organized implementation and negotiation ef-
forts.33 The first conference (COP-1) was held in Berlin in March 1995.
Participants agreed to establish a negotiating process to strengthen the
FCCC commitments to reduce global greenhouse gas emissions for the

period following 2000. The document that authorized and defined the
purpose of that negotiating process was called the Berlin Mandate. It
elaborated policies and measures “to set quantified limitation and reduc-
tion objectives within specified time-frames such as 2005, 2010, and
2020.” It also required that the negotiations be based on an equitable dis-
tribution of burdens and benefits, acknowledge the principle of common
but differentiated responsibilities, and refrain from adding any new com-
mitments for parties not included in annex 1. Newly industrializing na-
tions (Brazil, India, and China are among the most significant from the
environmental perspective) would continue to be exempt from future,
legally binding agreements to reduce emissions.
It was also in 1995 that the IPCC published the Second Assessment
Report (SAR). Based on peer review by 2,000 experts, it concluded that
the balance of evidence suggests that humans do in fact influence the
global climate.
At COP-2 in Geneva, in July 1996, the European Union, as well as a
number of its member states, was a strong advocate for the Second As-
sessment Report and argued that it should be used as the basis for the
work of the Berlin Mandate. A number of oil-producing countries (Ni-
geria, Syria, Kuwait, and the Russian Federation, among others) op-
posed using the SAR as the basis for policy.
Despite conflicting views, representatives did agree to hold COP-3 in
Kyoto, Japan, and to “take note” of a COP-2 summary statement,
which they called the Geneva Declaration. Among other things, it en-
couraged countries to
recognize and endorse the SAR, . . . noting in particular its findings
that the balance of evidence suggests a discernible human influence
on climate and that significant reductions in net GHG [greenhouse
gas] emissions are possible and feasible; believe that the findings of
the SAR indicate dangerous interference with the climate system; . . .
recognize the need for continuing IPCC studies to minimize uncer-
tainty; and reaffirm existing commitments to the FCCC, especially of
Annex I Parties.
In December 1997 about 10,000 delegates, observers, and media rep-
resentatives gathered in Kyoto, Japan. The negotiation text prepared un-
der the Berlin Mandate served as the basis for a COP-3 agreement known
as the Kyoto Protocol to the Framework Convention on Climate Change.
In the 27 articles of the Kyoto Protocol, annex 1 countries agreed to
An Accounting 133
reduce greenhouse gas emissions by “assigned amounts” specific to each

country: “The parties included in Annex I shall, individually or jointly,
ensure that their aggregate anthropogenic carbon dioxide equivalent
emissions . . . do not exceed their assigned amounts . . . with a view to re-
ducing their overall emissions of such gases by at least 5 percent below
1990 levels in the commitment period 2008 to 2012” (article 3.1).
Annex 1 countries are most industrialized and some central Euro-
pean nations. Annex 2 countries do not include the latter. Their “re-
duction commitments” range from 92 percent (change from the base
year) to 108 percent (for Australia). No developing country that signed
the FCCC, including China, committed to any assigned amount or
quantitative limit on greenhouse gas emissions. The role of developing
countries in reducing greenhouse gases is not specified in the Kyoto Pro-
tocol other than as potential partners in efforts by annex 1 countries to
meet their commitments (articles 4 and 6) 34 and as recipients of tech-
nology transfer (article 3.14). Developing countries are mentioned as
potentially subject to undesirable side effects that may result from re-
duction of greenhouse gases. To guard against such outcomes, article 2.3
of the Kyoto Protocol requires annex 1 countries to “strive to implement
policies and measures under this Article in such a way as to minimize
adverse effects, including the adverse effects of climate change, effects on
international trade, and social, environmental and economic impacts on
other Parties, especially developing country Parties.” Similarly, article
3.14 of the protocol requires annex 1 countries to “strive to implement
the commitments mentioned in paragraph 1 above in such a way as to
minimize adverse social, environmental and economic impacts on de-
veloping country Parties.”
After a 1998 meeting in Argentina, the Fifth Conference of the parties
took place in Bonn, Germany, in 1999. It addressed details of emissions
trading, the clean development mechanism (CDM), joint implemen-
tation (the so-called flexibility mechanisms), accounting of greenhouse
gas emissions, and development of a “credible” compliance system
(FCCC 1999). Emissions trading occurs among industrialized nations.
Joint implementation offers emission reduction units for financing proj-
ects in other developed countries (such as power plant conversions). The
CDM provides credit (certified emissions reductions, or CERs) for
financing emission-reducing or emissions-avoiding projects in develop-
ing countries.
In November 2000 at COP-6, parties met in The Hague to move the
general language of the Kyoto Protocol to specifics on how the goals of
the regime would be met. On the one hand, and as characterized by much
of the news media, the meetings were a failure (Corriere della Sera,
26 November 2000; International Herald Tribune, 27 November 2000).
The percentage of a nation’s goals that could be met by use of the flexi-
bility mechanisms, the extent to which sinks could be counted against
emissions limitations, and the nature and application of compliance-
promoting mechanisms divided the participants. Blame was assigned var-
iously to the refusal of the Americans to recognize the need for at least
some changes in their profligate use of energy, to the inflexibility of the
European Union or the failure of their lead nation (France) to compre-
hend details of the highly technical proposals, to the extreme proposals
made by the Saudis for compensating oil-exporting nations that would be
economically hurt by decreased reliance on fossil fuels, or to the inertia
of less developed nations that continued to insist that they need do little
to solve the problem since they do not cause it.
With the inauguration of George W. Bush as president, the United
States decided that it was not interested in the Kyoto Protocol because
that instrument was “fatally flawed.” Nonetheless, when 180 nations
met again in Bonn in July 2001 to complete COP-6, 178 of them reached
a compromise agreement. Attributed in part to the persistent efforts of
the chairman of the conference and the willingness of Europe to make
concessions to Japan, the conference agreed to several points. Emission
credits will be earned for carbon sinks and can include revegetation and
management of grazing lands, forests, and croplands, but sinks can ac-
count for only a fraction of a nation’s target. Developed parties are to
refrain from using nuclear facilities in their CDMs. Rights to emit will
be tradable; those nations that do not meet their own targets can pur-
chase rights from those that have exceeded theirs. The flexibility mech-
anisms all are to be supplemental to domestic actions. The aim of the
program to address noncompliance with emission limitations will be to
insure “environmental integrity,” not “reparation of damage to the en-
vironment,” a phrase that was deleted from the regime’s language. En-
forcement was limited to the notion of increasing emission reductions in
a later phase for every ton emitted above a party’s target. Three new
funds were created that will assist developing countries: an adaptation
fund, one for assisting with implementing climate-related measures, and
a third for the least developed countries. In November 2001 COP-7 met
in Marrakech, where steps were taken (based on a compromise between
Japan, Russia, Canada, and Australia on one side and the European
Union on the other) to develop a compliance-promoting mechanism and
to determine credit mechanisms under the flexibility programs.
An Accounting 135
The climate change regime’s fundamental characteristics are summa-

rized in Table 4.1.
TABLE 4.1. Climate Change Regime Summary
• Its ultimate objective is the “stabilization of greenhouse gas concentrations in

the atmosphere at a level that would prevent dangerous anthropogenic inter-
ference with the climate system.This level should be achieved within a time-
frame sufficient to allow ecosystems to adapt naturally to climate change, to
ensure that food production is not threatened and to enable economic devel-
opment to proceed in a sustainable manner.”
• The regime is guided by several principles.The precautionary principle holds
that lack of full scientific certainty should not be used as a rationale to post-
pone action when there is a threat of serious or irreversible damage.The
principle of common but differentiated responsibilities looks to the developed
countries to take the lead in combating climate change.The principle of sus-
tainability focuses on social and economic development and recognizes the
need for increased energy consumption in developing countries. Climate
change is seen as a common concern of humankind, but the leadership principle
looks to the developed countries as the main source of the problem and of the
resources to achieve solutions.The special needs of developing countries are
recognized.The extent to which developing-country parties implement their
commitments will depend on financial and technical assistance from the de-
veloped countries.
• Both developed and developing countries will adopt national programs for
mitigating climate change and will develop strategies for adapting to its im-
pacts.They will promote technology transfer and the sustainable manage-
ment, conservation, and enhancement of greenhouse gas sinks and reservoirs.
They will take climate change into account in their relevant social, economic,
and environmental policies; cooperate in scientific, technical, and educational
matters; and promote education, public awareness, and the exchange of infor-
mation related to climate change.
• Annex 1 countries commit to adopting policies and measures aimed at return-
ing their greenhouse gas emissions to specified amounts by specified dates
between 2008 and 2012. Several states may together adopt a joint emissions
target.
• Annex 2 countries will fund the full cost incurred by developing countries for
submitting national communications.These cannot be redirected from devel-
opmental aid funds. Annex 2 countries will also help finance other projects,
and they will promote and finance the transfer of, or access to, environmentally
sound technologies, particularly for developing-country parties. Other “flexibil-
ity mechanisms” for meeting emissions goals are provided for, as are programs
for partially reaching goals through best forestry management practices.
• The supreme body of the climate change regime is the Conference of the Par-
ties (COP).The COP comprises all the states that have ratified the convention. It
promotes and reviews implementation of the convention. It will periodically
review existing commitments in light of the convention’s objectives, new sci-
entific findings, and the effectiveness of national climate change programs.
The COP can adopt new commitments through amendments and protocols.
• A secretariat makes arrangements for sessions of the convention bodies, as-
sists parties in implementing their commitments, provides support to ongoing
negotiations, and works with the secretariats of other international bodies, no-
tably the Global Environment Facility (GEF) and the Intergovernmental Panel
on Climate Change (IPCC).
• Financial mechanisms provide funds on a grant or a concessional basis.

Most observers conclude that full implementation of the Kyoto Protocol
is insufficient to control the negative effects of change. More significant,
however, are the data in Table 4.2, demonstrating that critically impor-
tant nations are not meeting even their 2008 –2012 goals under the
modest targets, sometimes missing by giant margins. Furthermore, un-
less the term is to be stripped of any common meaning, the goal of
“demonstrable progress” by 2005 is not met. Beyond these official data
are numerous scientific observations and anecdotes related to the phys-
ical assessment: the disappearance of glaciers, blooming trees and flow-
ers during autumns in the temperate zone, the lengthening of the grow-
ing season in some regions, the early arrival of migratory birds.
In areas where there have been emission reductions and deceleration
of emissions increases, these have not uniformly been linked to the effect
of law. For example, Russia and other former Soviet states experienced
an immense economic downturn in the reporting periods.
The relationships between goal-setting for climate change and the ac-
tual atmospheric results are so complex that we can draw very few con-
vincing conclusions, but it is clear that progress, if that term can be ap-
plied at all, is limited. To be fair, some of the emissions increases were set
in place before the regime was conceptualized. Also, changes in the Kyoto
part of the regime are possible and are generally predicted; of 75 partici-
pants in a high-level meeting on climate change, fewer than 10 saw the
Kyoto Protocol as the final agreement on greenhouse gas controls, and
most expected a future replacement measure (Pew Center on Global Cli-
mate Change n.d.).
An Accounting 137
TABLE 4.2. Performance of Kyoto Protocol Participants

Selective Illustrative Data
Total emissions in tons

of CO2 or CO2 equivalent
Region in 1990 and in 1998 Percentage change
Asia from 1,631 million tons

to 2,466 million tons 50.0%
Latin America from 922 million tons
Australia from 423,237 Gg
to 484,699 Gg 15.0%
United States from 4,844 million tons
Japan from 1,048 million tons
Germany from 1,208,807 Gg
to 1,019,745 Gg 16.0%
European Union from 3,320 million tons
United Kingdom from 741,484 Gg
to 679,850 Gg 8.0%
Russia from 2,299 million tons
Africa from 599 million tons
to 729 million tons 21.7%
China from 2,389 million tons
Sources: United Nations FCCC, Subsidiary Body for Implementation,“National Com-

munications from Parties Included in Annex I to the Convention: Green Gas Inventory
Data from 1990 to 1998,” 11 October 2000, plus newspaper coverage for some devel-
oping regions. COP-6 reported that 20 countries reported increases from 1990 through
1998.

In considering the climate change case, I address a regime that includes
the law of the FCCC and of the Kyoto Protocol and its refinements in
numerous Conferences of the Parties. The regime has recognized the
need in international environmental law for innovations in compliance
promotion. These include allowing the involvement of NGOs, provid-
ing financial and other economic incentives for participation, empha-
sizing education, and recognizing that for many nations self-interest
ultimately will call for the control and management of global warming.
Innovations offered include the flexibility devices. Market mechanisms
are generously recognized. Furthermore, the regime attracts the partici-
pation of many nations by requiring little of them and provides for their
reporting before they need to commit to controls.
The Secretariat has performed in a professional manner, and the Con-
ference of the Parties strategy has been able to respond to some, al-
though not all, challenges to ongoing cooperation. It recognizes the need
in international environmental law for indefinite iterations among coun-
tries to resolve differences. Overall the COP approach reflects a general
ability of even large numbers of nation-states to work over long periods
of time toward cooperative outcomes. The regime has credible and im-
pressive links to the evolving scientific information base. There is an ap-
propriate adoption of principles of soft law, including the precautionary
principle and that of common but differentiated responsibilities of coun-
tries. Definitions are relatively clearly articulated, and a financial mech-
anism is being provided. Furthermore, the design builds on an evolving
acceptance by the private sector of the problem and the alternatives to
its control.
Yet there are very large weaknesses. Ease of entry is countered by ease
of exit, as the decisions by the United States and later Australia to aban-
don the Kyoto process demonstrated dramatically. Emission limitations
are both unrealistic in the short run and inadequate in the long run. It is
not clear what ultimately will be done to enforce obligations, reflecting
a desire to avoid difficult choices about what must be done. The same
can be said for the consideration of regulatory measures and for what
many consider inevitable, a global carbon tax. Some acceptable ap-
proaches under the flexibility devices may be in conflict with interna-
tional trade law.35
Most fundamentally, the regime has not evolved to influence suffi-
ciently, through any means, consumption by the billions of sources of
greenhouse gases, and it lacks an acceptable position on equity in seek-
ing changes in consumer patterns. Climate change affects people differ-
entially in terms of location, age, and income (Miller, Sethi, and Wolff
2000). Unless there are compensatory strategies generated for the effects
of cutbacks on the poor, the very young and very old, and certain geo-
graphic groups, opposition to across-the-board requirements to limit
consumption could be significant.36
An Accounting 139
CONCLUSION: LESSONS LEARNED, COMPONENTS

OF EFFECTIVE LAW
The overall assessments presented in the beginning of this chapter and
the five case studies suggest the immense challenges that international
environmental law faces. They also reveal the diversity of analyses of the
effectiveness of the law. Conclusions about the elements that make an in-
ternational legal instrument effective reflect both absence of consensus
on goals and differences as to the paths or influences to realize them.
There is some convergence, however, on what might be called factors
linked to successful environmental law. Of course, effectiveness can
mean many things. Most simply, but most ambitiously, it denotes a so-
lution of the environmental problem that brought together the lawmak-
ers. It can focus on changing behavior in relevant ways. It may translate
to realizing declared objectives (short of or different from quantified en-
vironmental improvements) or to creating correspondence between in-
stitutional outputs and expert advice. It can mean improving environ-
mental quality over some hypothetical state of affairs (Levy, Keohane,
and Haas 1993).
However defined, the list of factors linked to effectiveness is almost
embarrassingly long. Credible analysts do offer the following more man-
ageable list. A fair amount of scientific consensus about the existence
and causes of the international problem is fundamental, as is political
support within the participating nations. The organizational capabilities
of the secretariat and other implementing institutions should be sup-
ported. The secretariat needs to have resources and information. The re-
gime institutions must be able to create ad hoc alliances among them-
selves, and the regime must have an understandable and legitimate
dispute resolution process. It should be open to public and scientific in-
put. NGO involvement of a clearly determined type is important. A
modest entry commitment should suffice for nation-state participation.
A compliance-promoting mechanism, whether a taxing capacity or a
subsidy or trust fund, and recognition of varying capacities of developed
and developing nations are essential.
The regime should be based on consensual understandings of clear
policy objectives. It should ensure to all stakeholders, including NGOs
and the public, open communication and access to relevant information.
It should establish and strengthen norms for cooperation, implementa-
tion, and compliance. These should be promulgated by a legitimate,
competent, recognized authority with a willingness and ability to inter-

pret treaty terms and to enforce them. Questions of liability and sanc-
tions should be answered clearly. The institutions involved should foster
collaboration and cooperation in agenda setting, negotiating, and bar-
gaining. Public participation should be encouraged not only during pol-
icy formation but also in implementation. The treaty regime should em-
body consensus-building mechanisms and provide for an ongoing forum
to manage issues. Finally, the regime’s organizations must have sufficient
human and financial resources.
5. INTERNATIONAL ENVIRONMENTAL LAW:
EXPECTATIONS AND RECOMMENDATIONS
This chapter lays out conditions that are expected in the policy world in
which international environmental law evolves. They address the func-
tions of science in the law, the roles of private industry, and perspectives
on how to attain desirable international outcomes. The chapter then
presents a set of recommendations for improving the effectiveness of the
law, recognizing the considerable challenges of fostering change in com-
plex systems.
By several criteria the development of international environmental
law has been impressive. Increasingly sophisticated instruments have
been drafted. Much of the world community has accepted principles
that reflect progressive, scientifically based understandings of environ-
mental protection. Several regimes have focused on ways of successfully
implementing principles of protection. Compliance-promoting ideas
have been offered and employed.
Despite these overall positive conclusions, as elaborated in the last
chapter, the record is rather mixed. For every few successes (reductions
in whaling and in the production of ozone-depleting substances, for in-
stance), there is a failure or at least a relatively weak initiative, such as
BSEP or the Forestry regime. Principles are often co-opted to favor in-
terests incompatible with environmental protection. Some instruments
are ratified but very incompletely implemented. Other initiatives, pos-
sessing characteristics of effective law, are insufficiently funded.
An evaluation of the success of international environmental law must
include an analysis of effects on the physical environment itself, the con-
crete challenge that is the subject of the initiatives. When so understood,
the question is empirical, one that in most cases is not sufficiently mod-
eled and understood. Results come from assessments of physical pa-
rameters and from expert judgments, the former being the most signifi-
cant benchmark. As Chapter 4 noted, it is a benchmark that also is
difficult to quantify adequately, and tracing its roots to various phases

in the evolution of a legal regime is a task filled with uncertainties.
There is nonetheless a growing understanding that, even by the most
rigorous criteria, a more effective law can be realized. Here I highlight
characteristics needed to achieve that goal. I first lay out conditions that
are expected in the world of policy-making in which the law evolves.
There is an evolving appreciation that green is good, that environmental
management achieves important national and corporate objectives,
and that multinational organizations will increasingly accept these
understandings.
Unfortunately, talking green is also good, so there has been an adop-
tion of terminology associated with environmental protection indepen-
dent of changes in performance. Expectations for the conditions in
which law will be made include a greater incidence of democratic par-
ticipation at the international level, greater convergence in the science
that is the background for the consideration of treaties, and some con-
vergence in the assessment of the effectiveness of international environ-
mental instruments. I also expect more widely shared understandings of
what needs to be done to create effective legal regimes. Each of these
conditions has implications for the design and reform of international
environmental law.
This chapter then moves to my recommendations, several of which
account for changes expected in international policy-making and others
that I consider necessary independent of anticipated changes. I address
regulatory techniques, alternative enforcement and compliance-promot-
ing strategies, involvement of NGOs, procedural reform, organizational
changes linked to successful implementation, and incentives and sanc-
tions including trade sanctions. The recommendations recognize the
challenge of linking law, often soft law, to behavior that is established
and entrenched. Some recommendations are specific to a class of global
environmental problems. Others generalize to most all attempts to use
law to protect world resources and the environment.
EXPECTATIONS
The Greening of Geopolitics
Expect new environment-friendly concepts and worldviews to enter the

everyday discourse of international activities, including politics, trade,
and development.
International Environmental Law 143
The significance of international environmental protection is increas-

ingly recognized. There is no dearth of concepts on which to build
meaningful international environmental regimes, and the concepts are
moving ever more quickly into the official statements of institutions that
matter. Societal conditions are creating a strong public interest in the en-
vironment, including ecosystem survival and its relationships to the
health of the world population. A greening of geopolitics has been made
possible by the collapse of the Soviet Union and the recognition of the
limits of armed resolution of conflicts. As former Norwegian prime min-
ister Brundtland noted, “already, a new awareness of global ecological
interdependence is filling the political space which used to be occupied
by divisive Cold War concerns” (Shabecoff 1996, 115).
An overall assessment of this potential requires an analysis of the in-
terests that international environmental law serves. Many of the new un-
derstandings will be implemented within a policy-making world that
will not change dramatically over a short period of time. Forces that gen-
erated decades-old institutions likely will not respond much to the dis-
covery of new conceptual understandings, or speculations, or models of
how the world operates. These often are offered by academics, members
of NGOs, and others who are usually at the periphery of actual decision
making. Mostafa Tolba said after the Stockholm Declaration that gov-
ernments “need to change gears. We need a change of heart” (Shabecoff
1996, 45). Such changes come, if at all, slowly and with considerable
cost. Also, discourse can change dramatically without an air shed being
saved, a river cleaned, a species returned from the brink of extinction.
An underlying set of premises within the newer environmental law no
doubt reflects the same interests that underscored the major environ-
mental and economic policies of previous decades. Nonetheless, themes
such as sustainable development, environmental management, privati-
zation, and ecosystem analysis will continue to enter the vocabulary of
regional and global environmental strategies.
The meteoric rise of the concept of sustainability is a case in point.
The United Nations Conference on Environment and Development,
through Agenda 21 and the Rio Declaration, brought the concept to the
international community in an explicit way. Much earlier the ground-
work was laid (without the exact term being used) for its emphasis in
domestic and international affairs. It is at the very basis of UNEP by its
constituent act, U.N. General Assembly Resolution 2997 (27), which
stressed the need “to assist developing countries to implement environ-
mental policies and programs that are compatible with their develop-
ment plans” (Timoshenko and Berman 1993, 39). In 1983 UNEP’s role
in pursuing sustainability was recognized by the World Commission on
Environment and Development (the Brundtland Commission), which
gave the term general use. The idea was to reorient major international
organizations through improved coordination and cooperation toward
sustainable development (Timoshenko and Berman 1993). Brundtland
defined this as “development that meets the needs of the present with-
out compromising the ability of future generations to meet their own
needs.” UNEP in its fifteenth Governing Council attempted to clarify the
idea: “Progress towards national and international equity, as well as the
maintenance, rational use and enhancement of the natural resource base
that underpins ecological resilience and economic growth.”
UNEP introduced the concept into planning for environmental law.
The first long-term Programme for the Development and Periodic Review
of Environmental Law (the Montevideo Programme) was prepared by a
meeting of senior government environmental law experts in 1981 (Timo-
shenko and Berman 1993, 40). After Rio, the United Nations Com-
mission on Sustainable Development was created with the power to
recommend policies to the U.N. Economic and Social Council. Nation-
states have also institutionalized efforts to adopt sustainability as a pol-
icy anchor. The United States, for example, formed the 25-member Pres-
ident’s Council on Sustainable Development. In 1988, 22 directors of
U.N. agencies and programs met to plan and to coordinate their activities
to promote sustainability (Caldwell 1990, 82).
The 1992 Biodiversity Convention defines sustainable development
in its biological context: “The use of components of biological diversity
in a way and at a rate that does not lead to the long-term decline of bi-
ological resources, thereby maintaining its potential to meet the needs
and aspirations of present and future generations.” Both it and the Cli-
mate Change Convention can be seen as making sustainability part of
positive law. The WTO’s constitutional instrument refers to “optimal
use of the world’s resources in accordance with sustainable develop-
ment” (Uruguay Round 1994).
The sustainability concept avers that “the environment and economic
growth need not be in conflict . . . without protection of ecological sys-
tems, global economic decline . . . [is] inevitable. Conversely, without
economic progress, elimination of poverty, satisfaction of the material
wants of people of the developing countries, and extension of human
rights, efforts to protect nature and the earth’s life-support systems . . .
[are] doomed to failure” (Shabecoff 1996, 4).
Notions of sustainability will continue to motivate the development
of international law, but whether they will help create effective law
will depend on whether common meanings linked to making the en-
vironment a priority are adopted. As used so far, there has been con-
siderable skepticism. Howard Mann argues that all international law
should “be seen as being for sustainable development, rather than hav-
ing the legal community struggle to define a new, separate or overarch-
ing branch of law—international law of sustainable development”
(Sands 1995b, 67). Sustainable development, furthermore, is a concept
that can invite “an overly anthropocentric and instrumental interpre-
tation,” which can lead to a “development-oriented view of environ-
mental resources” (Handl 1994, 312, fn 43). It can be applied politi-
cally: “sustainable” means based on participation of local interests, but
those interests may or may not conserve resources for future genera-
tions. The literature on indigenous resource exploitation suggests that
these forms may generally be more sustainable, but the record is not
clear. Some indigenous patterns are environmentally destructive, and
“local” participation no longer equates with “indigenous” in many
parts of the world (Sirola 2001). Locals may be among those most fo-
cused on short-term gains that derive from exploitation. Articulating
high-sounding terms such as “sustainability” may also divert interna-
tional efforts to achieve consensus on more practical matters, matters
backed by science and politically acceptable, which can be effectively
implemented in the mid-run. The most severe critique of sustainability
holds that the environmental movement can be the handmaiden of
forms of polluting development based on assertions that such develop-
ment is green.
Nonetheless, different meanings of sustainability need not counter ef-
fective international environmental actions based on law. Doughman
(1999), in a study of the use of the term by multilateral development
banks, governments, NGOs, and the private sector in regard to water
infrastructure projects in Mexico, suggested that variations may pro-
mote communication and, eventually, cooperation. There are more di-
rect implications for an international environmental law. Critical analy-
sis of such phrases (“ecosystem-based analysis,” “privatization,” and
“environmental management” are similarly imprecise) is essential and is
available in work by NGOs and in the academic literature. These gen-
eral terms are a starting point for discussions of specific choices by
states; they can be a means of bringing negotiators together at a high
level of generality. They can provide ideas for joint setting of a research
agenda, and they may stimulate consideration of specific strategies that
environmental law can promote.
Participation of Nongovernmental Organizations

Expect that international environmental legal regimes will embrace
forms of participation that will promote greater compliance.
The continued involvement of new actors with interests that counter
an environmentally destructive status quo can be expected. In Rio and
in Johannesburg, large numbers of people with strong environmental
agendas participated in the conventions and in their parallel people’s
versions and influenced official actions. Since that time, hundreds of en-
vironmental action groups have been formed in every region of the
world. In North America under the NAFTA institutions, the number of
submissions brought by NGOs and private entities is striking when con-
trasted to the few consultations and arbitral panels assembled by the
parties themselves. Green parties at the domestic level have played no-
table roles in promoting national legislation. They were influential in the
collapse of the environmentally destructive Soviet regimes, and they have
earned considerable legislative power in the United States and in Europe.
As it relates to the effectiveness of law, however, this expectation
must be tempered. As recently as 1996, Koskenniemi could write,
“non-governmental organizations (NGOs) do not play an official role in
compliance review in any field of international law” (244). That is no
longer precisely accurate in the international field, but environmental
NGOs generally have limited roles in official proceedings. Where they
are active, an international environmental law also needs to recognize
that although NGOs can be productive players in treaty making, their
contributions are not always positive. Many NGOs have objectives in-
consistent with global environmental protection. Some are not particu-
larly democratic, and rules for involving them in international proceed-
ings may themselves be undemocratic. Motivations for participation
include sustaining an organization independent of its impact on treaty
evolution. Furthermore, competence is low in some NGOs, and even
when objectives are clear and philosophical positions compatible with
global stewardship, logistically it can be difficult to include large num-
bers of participants in the mundane tasks of instrument preparation and
implementation.
Cooperation Based on Science

Expect science to establish causal links sufficiently compelling that
nation-states will more readily accept inroads into sovereignty.
Science will continue to move toward consensus in some areas that
inform the design of international law. Epistemic communities of scien-

tists will grow in number and influence. International organizations,
such as UNEP, will promote activities furthering agreement through col-
laborative meetings of scientific and technical bodies (UNEP 1999).
The function of science is important in creating agreement, in de-
creasing uncertainty, and in suggesting policy responses to global degra-
dation. Some observers, however, have exaggerated its role. They choose
to select unrepresentative examples of scientific findings that led to in-
ternational policy initiatives, or they fail to consider cases where scien-
tists disagree in fundamental ways about the importance of information.
An example involved negotiations over the treaty on persistent organic
pollutants (POPs). Some environmental groups, focusing on scientific
information on ecological threats, called for global termination of pro-
duction and use of DDT, but 400 medical researchers countered with
data suggesting that DDT helps control malaria, which has approxi-
mately 3 million victims each year (International Environment Re-
porter, 15 September 1999, 745). Both groups are correct scientifically,
but the issue is larger than finding the best data. Science cannot deter-
mine which objectives of an international environmental policy are most
important.
Another example involves genetically modified crops and organisms.
Here serious disagreements are found between the north and south,
among the Western industrialized nations and within them. Scientific is-
sues may over time be more amenable to empirical investigations rather
than conclusions about values and priorities, but sorting one from the
other is not easily done in the politically charged world of trial crops,
square tomatoes, giant vegetables, and enhanced meat, poultry, and fish
products.
True, the dominant scientific view internationally is that the risks of
development and use of genetically modified crops and organisms are
small and manageable. A type of biotechnology—plant hybridization—
has a long and benign history. Critics, including some scientists, how-
ever, counter that the behavior of viral sequences encoded on plants is
not well understood, that DNA migration through ecosystems has not
been well studied, that secondary metabolite or protein toxins could re-
sult from gene manipulation, that the level of uncertainty in predictions
of some results of experiments is very high, that risk assessment criteria
are not a matter of scientific consensus, and that resistance of some
crops could undesirably spread to weeds (Hunter, Salzman, and Zaelke
1998). Furthermore, the science that forms the basis for the conclusion
that genetic modification is safe from a broad human and environmen-
tal health perspective does not offer the last word on “the broader cul-
tural, social, and economic dimensions that are of wide concern to the
public and many NGOs” (Nelkin, Sands, and Stewart 2000, 526). Lab-
oratories that seek to learn more about the dynamics of genetic modifi-
cation may be controversial when sited in developing nations without
environmental impact assessment guidelines.
These and other disagreements, including skepticism about the exis-
tence of objective science when economic and regulatory implications of
results are great, help explain the very different domestic laws on the
regulation of genetically modified organisms.1
The dynamic among science, policy, and law may be more complex
in the context of certain environmental problems. As Levesque (2000),
following Litfin, explained for the function of scientific information in
transboundary resource management between Canada and the United
States:
“the power of competing knowledges—likely to be decisive of scien-

tific uncertainty—was the critical factor” [in the outcome of the
global ozone regime] (Litfin 1994, 178). Atmospheric science did not
provide a foundation of objective, value-free facts that resulted in in-
ternational cooperation. Instead, scientific knowledge “was framed
in light of specific interests and pre-existing discourses so that ques-
tions of value were rendered as questions of fact, with exogenous fac-
tors shaping the political salience of various modes of interpreting
that knowledge” (Litfin 1994, 5 – 6). Litfin’s study demonstrates that
scientific knowledge, as opposed to epistemic communities of scien-
tists, was critical to the outcome of the negotiations. It highlights the
fact that ability of scientific knowledge to foster cooperation was me-
diated by how scientific information was interpreted and framed as
well as by whom the knowledge was interpreted and framed.
As to the origin and development of a regional conservation initiative

(Yellowstone to Yukon), Levesque observed:
Y2Y does not derive its power from the guidance of a consensus-
based epistemic community of scientists or from the ability to coor-
dinate consensual action based on a body of objective, value-free
facts. Instead, the network’s power is derived from its ability to
achieve consensus-based collaboration by interpreting and framing
scientific information and knowledge in ways that reinforce and sup-
port network interests, identities and goals.
Other than the idiosyncratic Montreal Protocol, there are few ex-
amples of science driving international action, although in many more in-
stances science has played a large role in promoting new official actions.
Diplomats do rely on scientists, including government-appointed
experts, to undertake risk assessments and to relate policy options to
effective risk management (Weiss 1992). Putting it more gently than
some critics, Weiss noted that “on the one hand, this gives govern-
ments confidence in the outcomes, which is essential; on the other it may
invite what has been termed ‘negotiated science,’ a matter about which
some of the international scientific community have been particularly
critical.”
Negotiations for the climate-change convention illustrate some of the
processes of science and policy interaction. From the perspective of in-
ternational environmental lawmaking, two expectations about scientific
consensus need to be critically addressed. First, the science on climate
change’s causes, its effects, and approaches to successful intervention
will continue to converge. Second, science will drive an effective inter-
national legal response.
Convergence is occurring for some of the science. Recent independent
studies confirm that there are changes in the earth’s outgoing long-wave
radiation spectrum, that there is a warming trend in the surface temper-
ature over the past 20 years, that ocean temperatures are rising, that the
thickness of Arctic sea ice is declining, that the Greenland ice sheet is
melting, that the ice-free season has gotten longer in the past century,
and that the Himalayas are warming.
The Third Assessment Report in 2001 made several reaffirmations of
the IPCC’s earlier work and added new findings. It characterized its re-
sults with qualitative descriptions of their certainty. The panel stated
with high confidence (i.e., with a 67–95 percent judgmental estimate)
that recent regional changes in temperature have had discernible effects
on many physical and biological systems and that some social and eco-
nomic systems have been affected by the increasing frequency of floods
and droughts.
Other IPCC conclusions also suggest convergence but underscore
considerable gaps in knowledge that relates to policy response. There
was high confidence in the prediction of a significant disruption of
ecosystems. Large-scale changes in oceans will include increases in sea
surface temperature and mean global sea level, decreases in sea ice cover,
and changes in salinity, wave conditions, and ocean circulation. Heat
waves in urban populations, increased stress on coral reefs, and in-
creases in the transmission of malaria and dengue–two vector–borne

infections will be experienced.
Some quantitative projections are beyond respectable challenge, but
some scientists criticize the IPCC 3 results as rushed and unconvincing
(Revkin 2000a), and certain assessments related to law are made with
very limited confidence. In sections they are obvious; they would not ad-
vance policymakers’ inclinations to change their international obliga-
tions drastically. A few noted scientists continue to insist that there is
not “any evidence that this is a serious problem.” 2
Scientific consensus about predictions of effects can be achieved while
scientific consensus about means to address global warming remains
elusive. “Regulatory uncertainty” (E. D. Elliott 1992) is as much a con-
straint on policy choice as is scientific uncertainty. For example, COP-6
(at The Hague in November 2000), faced with the question of how to
account for the removal and storage of carbon from the atmosphere by
forest sinks, was stymied by a split between parties who viewed knowl-
edge as complete enough to include sinks in emissions reduction calcu-
lations and those who read the science either as incomplete or as identi-
fying serious problems with reliance on sinks. Economic science also
fails to converge on the value of models that describe proposed effects of
different strategies, from taxes to subsidies and from trade programs to
regulation. Scientific consensus likely will continue to grow, but it will
constitute only one factor in choices among politically controversial
control options and implementation strategies.
One can debate the notion that pure scientific findings exist and still
recognize attempts to politicize science to achieve one or another end—
not necessarily a less environmentally stringent end—in international
environmental law and policy. Maurice Strong has said (begging the
question but certainly giving understandable reasons for the absence of
effective worldwide efforts at controlling environmental pollution),
“Environmental problems are like a cancer spreading insidiously
through the body. They will probably kill us eventually, but the symp-
toms are not acute enough to prod us into saving ourselves” (Shabecoff
1996, 140 –141).
Some environmentalists argue that a scientific explanation of the en-
vironmental threat is qualitatively different from that of other subjects
of legal control and that it demands a different kind of international re-
spect. Even where scientific consensus is not complete, dramatic new
centralized international initiatives are warranted because ecosystem
collapse and related environmental disasters suggest the compelling
need for the precautionary principle. Others consider this position not
only unjustified but also unscientific and dangerous, pointing as Nespor
(2000 –2001) does to the history of poor prediction in the environmen-
tal policy arena. Nespor’s examples include miscalculation of coal and
oil reserves, gross underestimation of food production, overly dire state-
ments about deforestation and the contribution of chemicals to car-
cinogenesis, as well as exaggerated assessments of the process of de-
sertification. Furthermore, advocacy of particular lifestyles may be
driving interpretations of data and decisions on environmental policy.
Aggressive precaution with costly side effects on economies and other
social goals may follow.
Still, science may lead to greater cooperation in international envi-
ronmental matters in another way. Although the science on a particular
question may not be compelling, the entry into public discussion of sci-
entific considerations of environmental problems has been dramatic; it
may suggest a more general interest in actions to preserve environmen-
tal resources than either the scientific community or governments ac-
tively promote. In tracing the impressive growth of a sector of world so-
ciety concerned with the environment, the “rise of scientific discourse
and association has been central. It universalized and legitimated earlier
and narrower conceptions of the environment as the locus of either sen-
timent or particular resources” (Meyer et al. 1997, 645). States may be
pushed farther into international cooperation despite the mainline ob-
jectives of preserving sovereignty that they would seek absent popular
domestic concern.
The implications of these observations are straightforward. In the
limited number of circumstances of clear and consensual scientific ap-
preciation of an environmental impact link, law will be able to guide
nation-state movement to select among control strategies. In other situ-
ations, negotiators will face choices where values other than environ-
mental protection are salient and where science is the basis of compet-
ing, not converging, advocacy.3
Corporate Advocacy of Green Management

Expect the business sector to advocate less need for regulation because
of green management strategies.
As elaborated in Chapter 3, for several reasons major private sec-
tor enterprises have recognized the value of promoting environmental
protection policies. To a certain extent, green management of the kind
espoused by Ford, DuPont, and major German and Scandinavian com-

panies reflects the values of company executives, but the expectation
articulated here is based on the more systemic factors that I discussed
earlier. Green management can save money, it can enhance a firm’s re-
lations with its customers, it is a wise marketing technique, and it can
improve a company’s relationships with insurers and with domestic and
international regulators.
As a case example, industry will continue to assert that climate
stability can be achieved if business takes a leadership role. Strong
initiatives on the part of major multinational corporations to pursue
technology-trading approaches, serious commitments by leading CEOs
to fundamental production changes, and consumer-driven changes in
product types will be seen.
Some corporations will identify solutions to specific climate-altering
problems, and markets will disseminate the innovative approaches that
they identify. Ford, DuPont, Mitsubishi, BP Amoco, Royal Dutch Shell,
United Technologies, and others will see the benefits of taking anticipa-
tory measures to combat climate change.
Major European and other industrialized wealthy nations will con-
tinue to hold the position that the private sector must be deeply con-
cerned about the environmental threat of climate change and can profit
by being an early adopter. A case in point was the surprising response
to the World Bank’s Prototype Carbon Fund. It closed its first subscrip-
tion period (15 January to 10 April 2000) with $35 million more than
expected, almost $135 million in contributions. The fund sponsors proj-
ects designed to produce emission reductions consistent with the Kyoto
Protocol. Private companies and government investors will receive a
share of the reductions as credits. Canada, Finland, the Netherlands, Ja-
pan, Sweden, and Norway have led the way on this initiative (Interna-
tional Environment Reporter, 4 May 2000, 352). In the United States
the private Joyce Foundation has funded an innovative experiment in
trading greenhouse gases by the Chicago Climate Exchange.
Increasing availability of critical information will make the misuse of
green discourse risky, and over time the positions that a company pub-
licizes will become part of its culture, driving the decisions and actions
of new employees. A related expectation nonetheless persists: the un-
derlying consumption-promoting ethos of the multinational corporation
will be at the heart of certain types of environmental degradation. A
cleaner Ford continues to affect land patterns and use natural resources
in ways ultimately antithetical to climate stabilization, sustainable de-

velopment, and related environmental goals.4
The implications of these corporate orientations for international en-
vironmental law are twofold. Policymakers will see an ever-expanding
inventory of strategies that focus on business’s contributions to global
environmental stewardship. At the same time, critics will question the
actual performance of these approaches and contrast them with poten-
tial results of regulation and other government-guided interventions.
Policymakers will need to make difficult decisions about the nature of
the legal provisions that focus on industry.
Innovations in Compliance Mechanisms

Expect greater innovation in pursuing compliance with international
environmental law.
As summarized in Chapter 2, legal scholars, policy analysts, and gov-
ernment officials offer many compliance-promoting mechanisms, and
several have been introduced into international instruments. They range
from establishing participatory mechanisms for making treaties to iden-
tifying funds and other economic incentives, to creating ongoing com-
pliance committees. Managerial approaches to achieving international
environmental goals will be more widely advocated as criticism of regu-
latory strategies mounts.
This focus on compliance will nonetheless confront implementation
challenges, complicated in the national arena (Pressman and Wildav-
sky 1973) and much more difficult at the supranational level—both
under traditional environmental diplomacy and under the managerial
innovations.
In introducing innovations, the translation of concepts into dozens of
languages across hundreds of countries is an enormous challenge.
Where agreement is reached about meaning of terms at one level of ab-
straction, making the terms significant on the ground can be difficult.
Beyond these relatively cosmetic differences are serious and enduring
cultural disagreements about the best practices for reaching goals under
a rule of law and without developed legal systems (Sievers 2001). Fund-
ing may also be an obstacle to implementing innovative ideas, such as
fostering NGO participation or creating compliance accounts, not only
because some countries lack money but because of shifting priorities in
national budgets. Furthermore, those who commit to implementing a
regime must communicate needed changes to numerous agencies, regu-

lated entities, and the public. This is not easily done in many countries.
Some implementation difficulties derive from federalism. Subfederal
levels of government may have strong conflicting positions on interna-
tional treaties, and in some jurisdictions those governments can block
effective implementation. Witness the struggle of commonwealth versus
state authority in Australia over the question of how to respond to
global climate change. In Canada, the full impact of NAAEC has not
been realized in part because some provincial governments have not
adopted the side agreement.5
These expectations—a growing rhetoric about and some commitment
to a sustainable physical environment (to greening international law), a
growing consensus in some global environmental science, a greater con-
vergence of private sector goals and the public interest in environmental
protection, and increasing knowledge about ways to achieve compli-
ance—underscore the recommendations I offer for the next generation of
international environmental law.
RECOMMENDATIONS FOR THE STRUCTURING

OF INTERNATIONAL ENVIRONMENTAL LAW
Within the context set out above and the context of a pluralistic world
of international policy, what can be done to enhance law’s role in reach-
ing global preservation? Among the array of available tools, which ones
should the international community of sovereign nations select, pro-
mote, use, and enforce? Based on experience with successes, based on
disappointment with failures, which characteristics of lawmaking and
implementation should be emphasized?
Not all of the recommendations address each of the challenges sum-
marized in this book. As developed in chapters 1 through 4, these range
from attempts to control separate nonmalicious actions of millions of
people to measures against a few individuals who destroy natural re-
sources to achieve a financial or military advantage (international arson
on oil fields, illegal movement of toxic materials). Groups of states or in-
dividual countries create harm outside their regions, on a single nation
downstream or a large air shed that covers many countries. Some de-
struction, such as burning of the forests in Indonesia or Brazil, involves
the deliberate but legal activities of small groups of people or a few na-
tions. Some, such as dumping from cruise ships, comes from daily vio-
lations of many people. Some manifests itself immediately in clear and
dramatic ways (loss of another species of once abundant fish). Some, such
as global warming, will take years if not decades to register as insults.
The history of the performance of international environmental law is
one of common characteristics, but it is not explainable by a single
dynamic (Flores 2002). Remarkably particular at times, generally ap-
plicable at others, are factors that promote successful treaty making
and implementation. Some are unique to the environmental circum-
stances, so that addressing them in policy for a different problem will
not be useful. Others—those identified by managerial and participa-
tion-centered analyses of why nations comply, those of the regime theo-
rists among political science, and those from organizational theory—
are relevant to many efforts to influence complex behaviors. Their
insights combine to approximate a midlevel theory (Merton 1967) of ef-
fectiveness of international environmental law. That theory generates
some shared recommendations.
Recommendations build on knowledge of what works in the interna-
tional community. These are not particularly ambitious. The most am-
bitious strategies are not only unrealistic but are also, in many cases, un-
desirable. Some should not be implemented. For example, I do not
advocate creation of centralized supranational authorities with strong
powers. Prerequisites for them to be effective and fair do not exist in-
ternationally. Citizens must be watchful of centralizing authority in their
own states, and they need to be triply concerned about delegating au-
thority upward to organizations that do not possess records that merit
assumption of such power. Unfortunately, some elements of the less ef-
fective United Nations agencies remain cases in point.
Considerable progress has already been made. It provides the back-
drop for evaluating just how much change recommendations require. As
Edith Brown Weiss (1992, 11–12) wrote, “The provisions in the new
agreements are generally more stringent than in the previous ones; the
range of subject matters is broader; and the provisions for implementa-
tion and review are more sophisticated. One encouraging observation
from this experience is that the learning curve demonstrated in interna-
tional environmental law is unexpectedly steep.”
Although learning by nations has been smooth, implementation has
not. Furthermore, each successive attempt to assure implementation and
compliance will be scanned with ever more vigilance; nations wonder if
the benefits of entering international regimes are worth the sacrifices.
The U.S. Senate’s Byrd-Hagel resolution (U.S. Senate 1997) during the
Kyoto negotiations is instructive. It opposes U.S. signing of climate
change instruments if developing countries are not also required to limit

emissions or if they would harm the U.S. economy.
The mammoth proliferation of international environmental law sug-
gests that the international community should have a greater experience
in its workings before making large and fundamental additions to its
corpus. Less frequent adoption of new instruments and more effective
implementation of those that exist are needed:
International lawyers . . . should have a special interest in avoiding
environmental legal window-dressing or fictitious law making: Leg-
islation without concern for the effectiveness of the norms enacted, or
the commitments states enter into, is self-defeating. More time and
effort must be spent on strengthening monitoring of compliance and
implementation of already existing commitments. Unless interna-
tional environmental law on the whole . . . remains credible, no
progress toward that goal [sustainable development] will be possible.
(Handl 1994, 331)
There are a few other points of departure. First, international envi-
ronmental law contributes to fixing a set of norms and then influences by
sanctions and incentives those entities that deviate in some significant
way for some significant time from those norms. Second, although there
are sound arguments against centralized lawmaking, in select areas it has
been effective. The conditions for such action (peacemaking in the former
Yugoslavia, selective intervention in Africa) have been particular and spe-
cial. Occasionally they may exist in the environmental arena. Third,
many nonlegal instruments—from environmental education to green
management—show promise for achieving environmental protection.
To focus on the law is not to deny the utility of other methods. Rather, my
purpose here is to highlight where the law has a unique function and to
demonstrate how law can be used to channel some of the most effective
elements of other instruments. They can then work in parallel to influence
collective action. Law is not everything. It is not the only thing. Nor is it
impotent (as some have argued in treatments of its deficiencies in gen-
eral). It is a separate, identifiable institution that influences behavior, even
very complicated behavior that creates climate change, destroys the pro-
tective ozone shield, and threatens the existence of a species.
Participation-Centered Global Lawmaking

Fundamental to the creation of effective global green law is participa-
tory agreement making by nation-states. A further orientation toward
an ongoing, egalitarian, interactive environmental diplomacy is called

for. Countries thereby will learn about each other’s priorities, not only
as those are set out in policy briefings but in face-to-face deliberations.
Values will be communicated and interpreted. Negotiators will reach
conclusions about the accuracy and trustworthiness of information that
is supplied by their peers. Disputes over provisions can be mediated in
processes equitable to participants with vastly different international ne-
gotiating capabilities.
A discourse with few if any parallels in complexity needs to evolve: it
touches on subjects as diverse as tools for monitoring pollutant emis-
sions and effects, human rights, and specified levels of consumption and
comfort. Communications must be orchestrated among large numbers
of people with different professions, languages, and world views.
Despite globalization, including in communication, the amount of
misunderstanding, ignorance, and misinterpretation of the positions of
people on the other side of boundaries is significant. Perceived differ-
ences jeopardize the creation of a common understanding of treaty and
other instrument choices. Transactive processes and joint participatory
efforts are indispensable to the movement toward consensus in law, as
in many other areas of international commerce and policy.
It can be surprising how different cultural perceptions are about the
need for international intervention. At the 1999 Seattle meeting on
global trade, some delegates from developing countries believed that
the U.S. government was responsible for the violent street demon-
strations, choreographed to justify the American position on a need
for links between trade and environment and labor objectives. Also
startling to Western NGOs was the position of some academics and
NGO leaders from Africa, Asia, and Latin America that culminated in a
statement opposed to including environmental and labor issues. Third
World representatives asserted that these goals were promoted for eco-
nomic gain by the wealthier nations, selectively targeting the developing
world.
The tuna embargo against Mexico; the shrimp controversy involving
the United States on one side and India, Pakistan, Malaysia, and Thai-
land on the other; the controversy over contaminants in gasoline in-
volving Venezuela and Brazil as exporters; the concern, principally of
the United States, with toxic inhalation hazards associated with inade-
quately packaged materials; Sweden’s assessment of risks associated
with transport of hundreds of millions of airbag items; France’s ban on
chrysotile asbestos, citing a risk of cancer at any exposure; the value of
flexibility mechanisms to combat climate change; the need for regulation
of genetically modified organisms— each involved strongly held cultural

and national differences on subjects of international environmental law.
Ignoring such differences is a formula for treaty stillbirth. Joint and
iterative articulation of the nature of an international environmental
problem, joint analysis of the strategies that might be used in addressing
it, transactional generation of ideas on successful implementation and
compliance-promoting activities are essential. Treaty making must
involve both governmental negotiators open to learning (including
through joint fact finding) as well as teaching and civil society. As the
Salzburg Initiative noted, treaty making should implement a “bottom-
up” approach to “aggregating increasingly larger clusters of countries”
into coalitions that can articulate important negotiating points (Suss-
kind 1994a).
Social science provides some theoretical basis for advocating cooper-
ation (Gehring 1994; Keohane 1995; Haas et al. 1994). “It is a central
insight of almost all approaches to international regimes that actors may
cooperate and establish international regimes without having to sacri-
fice the pursuit of their own interests” (Gehring 1994, 482). Gehring’s
work may be subject to some criticism because the cases he studied do
not provide solid support of his theory (Mitchell 1995); nonetheless, the
rationale is convincing (Gehring 1994, 483– 484):
During negotiations the actors gradually develop similar interpreta-
tions of recognized facts. Their appraisal of the desirability of certain
options for action converges, and coincident expectations of appro-
priate behaviour emerge on this basis. Common interpretations,
views and expectations are the result of a communication process
during which understanding is reached. The result is collectively ac-
cepted by the actors involved and has already passed the coordina-
tion mechanism of the regime. . . . The gradual development of col-
lectively agreed views of a social problem and its appropriate solution
transforms a group of participating actors into a community.
In a process that aims to exchange information, rather than impose a
position, what seems obvious to one side at the beginning becomes, un-
der certain negotiating scenarios, more open to understanding by the
other side. Compliance with a requirement is influenced by the presence
or absence of an actor’s participation in articulating norms and rules.
This is among the most lasting findings of social psychological and or-
ganizational research (DiMento 1976, 1986). It helps to explain com-
pliance with international law by nation-states, which on the ground
must participate as people in groups (Allison 1971). Dynamics of norm

internalization occur and generalize, spread among the nested small
groups in an organization, within the institutions in the nations, and
within the international organization or regime. Many leading students
of international law have described the dynamics of norm creation, in-
ternalization, removal of barriers linked to ignorance, and creation of le-
gitimacy. The legal scholar Harold Koh (1997) further develops the un-
derstandings made in part by professors Chayes and Fisher in the
international context, offering what he calls “the missing causal ele-
ment,” transnational legal process:
Such a process can be viewed as having three phases. One or more
transnational actors provokes an interaction (or series of interac-
tions) with another, which forces an interpretation or enunciation of
the global norm applicable to the situation. By so doing, the moving
party seeks not simply to coerce the other party, but to internalize the
new interpretation of the international norm into the other party’s in-
ternal normative system. The aim is to “bind” that other party to
obey the interpretation as part of its internal value set. Such a
transnational legal process is normative, dynamic, and constitutive.
The transaction generates a legal rule which will guide future trans-
national interactions between the parties; future transactions will fur-
ther internalize those norms; and eventually, repeated participation in
the process will help to reconstitute the interests and even the identi-
ties of the participants in the process.
Much of the research on participatory dynamics involves problems
addressed at the small group and community levels. Application inter-
nationally, however, is merited for several reasons. First, the interna-
tional arena is composed of dynamic aggregations of smaller-scale lev-
els. Negotiations take place among groups and communities of experts.
Second, domestic policy and lawmaking are more mature than in the in-
ternational community, but they are similar in several fundamental
ways. Entities that have chosen to come together to control themselves
for common benefit are seeking the best ways to do so, with imperfect
information and often different cultural understandings. There is a need
to establish or reaffirm legitimacy. There is a need to create understand-
ability and clarity.
These appreciations not only provide a rationale for participation-
based international law but also generate tool kits and instruments of
active management (Koh 1997; Chayes and Chayes 1991, 1993, 1995).
They include transparency, reporting and data collection, mechanisms

of verification and monitoring aids, dispute settlement fora, capacity
building, and strategic review and assessment. Other helpful conditions
include iterative functionalism. Feldman (1995, 188) defines it as “the
replication and gradual refinement of procedures, rules, and obligations
negotiated by nation-states in previous agreements in larger, more com-
plex contexts.” Supportive circumstances include a comparable voice
among countries, an equitable commitment of resources, a careful se-
lection of activities determined on the basis of organizational consensus
and expertise, and an earned trust by a secretariat and its subsidiary
bodies.
This checklist provides some of the bones of a skeleton of a lawmak-
ing mechanism and a body of law. It needs to be fleshed out with details:
What does transparency mean in the CITES context? What data collec-
tion is most important in the Black Sea international legal regime? How
is confidence created among such a large number of representatives, of-
ten changing even within a nation, in a Conference of the Parties on cli-
mate change or transboundary hazardous waste?
Not only will the body of resulting law reflect achievable substantive
goals, but it will also have the important additional element of imple-
mentability. Lipschutz (1992, 23) asks about some of the activities:
“The key question is: Can all of these efforts, taken together, substitute
completely for international agreements on environmental cooperation?
No, but it is possible that they can form the basis for systems of imple-
mentation of those agreements.”
Advocating participatory treaty making in a world of billions of
people may sound unrealistic. It is clear that some daunting challenges
to this model exist for some international environmental goals. In con-
fronting problems that affect hundreds of nations, using different lan-
guages, accepting responsibility differentially, emphasizing drastically
different values, in facing a task that requires addressing a large number
of issues, effective process models are not obvious. It is not that the Cli-
mate Change Secretariat does not know how to structure meetings, ne-
gotiations, and interactions to assure cooperative resolution; it is that no
one is confident about how to do that for unprecedented environmental
problems.
The November 2000 Conference of the Parties of the global climate
change regime represented to some a learning process. To others it was
a failure. New York Times columnist Andrew Revkin (2000b) explained
a part of the challenge:
Part of the problem was also a cultural rift, negotiators on both sides
said. The European Union, where Green Party politics is a driving
force, never found a way to compromise with the United States,
where the environmental movement is increasingly working with in-
dustries to influence change. “It is extremely difficult to negotiate be-
tween groups where political cultures are so different,” Dominique
Voynet, the French Environment Minister and a Green Party mem-
ber, told the plenary sessions.
It is clear, however, that interacting with people over time in struc-
tured settings entered to achieve a generally accepted outcome is more
useful for creating common understandings of how to get to goals (or
how to refine them) than, say, having small groups in hierarchical situ-
ations dictate ends and means through resort to their own views. The
numbers of people who must be influenced are in the tens of thousands.
To the extent that all regions wisely use and coordinate resources, meet
regularly, focus on leading environmental problems, and mutually
choose strategies that can influence behavior, a relatively small percent-
age of the world population can be significant. “Interaction breeds loy-
alties both to persons and more often to causes that may transcend a
particular representative’s instructions and especially the vaguely ex-
pressed directives that emanate from most governments in respect of in-
ternational political enterprises far from home” (Szasz 1992, 74).
Conversely, small numbers of powerful actors who choose not to par-
ticipate in lawmaking can seriously counter environmental protection.
The global climate treaty and the treaty on the international banning of
land mines are important illustrations. Realpolitik analyses consider
these efforts weak in the face of U.S. refusal to engage actively. For some
law challenges it remains an open question whether progress is possible
without a reorientation of a treaty-making style that aims to impose and
persuade rather than to cooperate and create.
Command and Control and Regulatory Systems

There remains a selective, customized role for regulatory systems.
Global Environment Outlook (1997) concluded that one form, called
command-and-control standards in domestic settings, is “effective in
many cases in terms of short-term environmental improvements,” al-
though costs of implementation, enforcement, and compliance are high
and may hinder economic development. Although such policies have
proven effective for pollution control, they are less useful for resolution
of problems associated with management, protection, and conservation
of natural resources, “particularly when a large number of different
groups and people use these resources.” Part of the reason the applica-
bility of command and control is seen as limited is that environmental
issues are said to have developed from “simple (local, attributable,
quantifiable, easy-to-solve, low-risk, and with short time horizons) to
complex (global, non-attributable, non-quantifiable, difficult-to-solve,
high-risk, and with long time frames)” (131). The comparison may be
too stark and incomplete, but this conclusion (simple to complex) is use-
ful for sorting out the approaches that work under specified conditions
and for specified environmental problems. Many environmental prob-
lems in the past clearly were high risk and had long time horizons mea-
sured by environmental impact perseverance. Also, some were not eas-
ily attributable; witness the morass in assigning liability under the U.S.
Superfund law. It serves little purpose to say that today’s environmental
problems are nonattributable. As I have tried to demonstrate in this
book, they are not all attributable to the same sources, but attribution
can be made. Further, many of the problems to be addressed manifest
themselves not globally but in transboundary and regional contexts.
Mainstream regulatory efforts have long histories in domestic settings
and in a few international settings.6 They provide certain advantages in
selective and strategic applications where states have sufficiently agreed
on objectives. As Downs and his colleagues remind us, we know quite a
bit about the impact of enforcement coupled with managerial variables
such as transparency. They contrast this knowledge with “ideas and rel-
ative prices,” which are not well-specified strategies that direct policy-
makers to ways to increase compliance. “We know relatively little about
how to use ideas to change preferences about discount rates, consump-
tion versus savings, or the environment” (Downs, Rocke, and Barsoom
1996, 398).
One must look critically at the wholesale rejection of regulatory ap-
proaches. Where do they originate? To what are they compared? They
arise in part from frustration with implementation, but implementation
is often attempted by agencies that have excessive mandates and limited
resources. Problems are not always inherent in the strategy itself. Some-
times command and control is theoretically contrasted with economic
incentives, self-regulatory activities, environmental management, and
managerial thinking, which have limited histories and lack evaluation
with real world complexity.
Certain international problems cannot avoid regulatory solutions.

Ozone depletion and species extinction would not have lessened with-
out rules and sanctions. Should the dominant understanding of the
causes and controls of climate change continue, a greater commitment
to a regulatory regime seems inevitable. Some nations will adopt self-
controlling rules without the need for supranational requirements, but
others will not. External pressure will be necessary, including providing
national leaders with support for a decision that (although essential) is
unpopular domestically.
Even in a climate stabilization system characterized primarily by
flexibility mechanisms, market force, and trading, there remains a need
for some kinds of sanctions and liability rules if reports on greenhouse
gas emission reductions are not accurate (Nanda 1999). Other initia-
tives include requiring signatories to enforce effectively their environ-
mental laws that already regulate carbon emissions or to pursue vigor-
ously regulatory strategies provided for but not yet implemented in
domestic law.
Whether typified as regulatory or otherwise, there is a need to clarify
several elements of the system for climate stabilization. We must still de-
termine time tables, further define terms (What is a forest? Under what
circumstances does it qualify as a sink?), decide percentages of commit-
ments that can be met by alternative means, and determine who will
monitor and certify emissions reductions. Finally, however character-
ized, rates for taxation strategies must be established, monitoring must
be done, and penalties must be assessed for failure to pay.
Certainly reliance on centralized top-down control, including through
a supranational authority, should be limited. Sir Crispin Tickell, a for-
mer ambassador to the United Nations from the United Kingdom, fore-
saw a world police force operating under the authority of the Security
Council “to compel environmental rectitude,” although he concedes
that the thought “is somewhat distasteful” (Shabecoff 1996, 118). It
also is highly unrealistic and fraught with serious problems of value dif-
ferences and implementation challenges and should not be a part of a
regulatory model. In 1989 at The Hague, the prime ministers of France,
Norway, and Holland suggested considering the creation of a world en-
vironmental legislative body to draw up global regulations and impose
sanctions on noncompliers. The idea did not go forward because most
governments were unwilling to cede important sovereign powers. Even
the sponsoring nations were confident they would never have to be
bound by their own ideas (Shabecoff 1996, 121). There may be ex-
tremely exceptional circumstances that justify suggestions such as

Shabecoff’s (118): “Military forces may increasingly be deployed to de-
fend global security. Not only would the military engage in a precau-
tionary role of monitoring and research but could also be called on
to carry out its traditional ‘coercive’ function to protect the global
commons from destruction and to enforce international environmental
treaties.” Rare, indeed, are scenarios that indicate the latter actions.
An international environmental agency within the United Nations
with power and authority along the lines of the International Labor Or-
ganization has also been proposed (Esty 1994; G. Palmer 1992). It
would rule in a super treaty system that sets environmental standards of
international applicability by a two-thirds majority, and it would pro-
mote compliance. In light of the considerable power of trade and com-
mercial enterprises, including the WTO, the proposal has some appeal.
A world environmental organization could balance the excessive focus
on progress measured in narrowly defined economic terms and seen as
mainly linked to free trade. It could have substantial symbolic value,
much like a constitutional provision for environmental protection in a
domestic legal system. It could bring environmental interests nearer to
an equal footing with commercial interests.
Such an organization, however, could not be effective until a consen-
sus develops about its need, including recognition that the benefits of
trade must be put into a context of localized costs. Second, it might well
mushroom into a large bureaucracy that would operate heavily accord-
ing to narrow political considerations, as many other international or-
ganizations do. Once established, it likely would not be sufficiently
funded. This treatment would further erode the credibility of interna-
tional environmental law. Furthermore, conflict with evolving and frag-
ile but promising regional bodies is probable. A major question is what
would be included and what would be outside the jurisdiction and sub-
ject matter of the organization. The parallel but much less ambitious en-
vironmental regime, the NAFTA Commission for Environmental Coop-
eration (CEC), in excluding several significant enterprises from the
definition of environment, disappointed many initial supporters.
Command, Control, and Enforcement

The question of how compliance with the regime is to be fostered re-
mains, whatever strategy is emphasized. Means range widely. They in-
clude domestic NGOs empowered to hold governments accountable for
their actions or inactions, trade measures, citizen submission processes,

direct private actor liability with subsidiary state liability invoked when
a private operator cannot meet the obligation, financial guarantees such
as bond posting, an international claims commission, procedural rules
developed to ease barriers to effective enforcement, alternative dispute
resolution techniques, and (in very limited settings) mandated criminal
sanctions.
Focusing first on the most draconian choice, criminal sanctions have
only a very circumscribed role in international environmental law.
Nonetheless, a recognizable history of its consideration and advocacy
exists. A major United Nations effort resulted in several research reports
and a request to the Secretary General. This encouraged the incorpora-
tion, where appropriate, of international environmental law provisions
by which states would be expected to enact sanctions under national
criminal law and to examine the possibilities “of further harmonization
of the provisions of existing international instruments entailing penal
sanctions under national criminal law” (Resolution 45/121, 14 Decem-
ber 1990).
Many environmental conventions include penal provisions (Cho
2001). Some, such as the Basel Convention, require parties to take ap-
propriate measures to ensure the application and the punishment of in-
fractions. A second type, exemplified by the Convention for the Preser-
vation of Fur Seals in the North Pacific, requires parties to enact and
enforce necessary legislation to make effective the provisions “with ap-
propriate penalties for violation.” A third type makes violations punish-
able under national law. The Convention on the Physical Protection of
Nuclear Materials is an example. A fourth approach focuses on legisla-
tion and other measures necessary “for the purpose of giving effect” to
the agreement. There are also numerous bilateral, regional, and multi-
lateral agreements of this kind, including a 1973 agreement to protect po-
lar bears (Cho 2001). The Convention on the Protection of the Environ-
ment Through Criminal Law of the Council of Europe would obligate
signatories to impose financial sanctions or imprisonment for illegal
movements of hazardous waste and would apply extraterritorially. None-
theless, few examples can be found of actual use of criminal sanctions
outside domestic law, and there is no significant international environ-
mental community that is a pressure group for criminal law enforcement.
Some hope to create an international criminal forum that would reach
environmental violations. In 1998 the United Nations Diplomatic Con-
ference of Plenipotentiaries on the Establishment of an International
Criminal Court (the Rome Conference) adopted the Rome Statute of the
International Criminal Court. The statute’s preamble affirmed “that the
most serious crimes of concern to the international community as a whole
must not go unpunished and that their effective prosecution must be en-
sured by taking measures at the national level and by enhancing interna-
tional cooperation.” Article 1 established an International Criminal
Court at The Hague that “may exercise its functions and powers . . . on
the territory of any State Party and, by special agreement, on the territory
of any other State” (article 4).
Crimes within the jurisdiction of the court are limited to the most se-
rious international offenses, such as genocide. War crimes (article 8) for
which the court has jurisdiction include, as relevant to the environment,
“extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly” and “in-
tentionally launching an attack in the knowledge that such attack will
cause incidental loss of life or injury to civilians or damage to civilian
objects or widespread, long-term and severe damage to the natural en-
vironment which would be clearly excessive in relation to the concrete
and direct overall military advantage anticipated.”
Among the laws that the court will consult are applicable treaties and
the principles and rules of international law, including the established
principles of the international law of armed conflict. In certain circum-
stances it will also apply general principles of law derived by the court
from national legal systems, including, as appropriate, the laws of states
that would normally exercise jurisdiction over the crime. This language
could encompass domestic environmental crime statutes.
Certainly, some actions merit response with criminal sanctions. The
application of penal law philosophically and from a policy perspective
needs to be treated seriously for general deterrence purposes in cases of
repeated violations.
The symbolic value of the criminal sanction can be immense. As it
does at the domestic level, it can communicate the importance to the in-
ternational community of deliberate destruction of environmental re-
sources. It can set out lines beyond which no civilized nation or one of
its constituent entities or one of its residents can go. One such line is in
the draft articles of the International Law Commission, which includes
criminal responsibility for “a serious breach of an international obliga-
tion of essential importance for the safeguarding and preservation of the
human environment.” Another factor equates serious deliberate envi-
ronmental degradation with a violation of human rights. In the human
rights sphere, there is close to consensus that criminal sanctions are ap-
propriate for punishment of violations.
Use of the criminal sanction internationally must be viewed with very
modest expectations. Among the few instances where international law
has resorted to criminal sanctions, only a small number have been suc-
cessful. In certain limited circumstances the world community can mo-
bilize itself to locate alleged perpetrators of heinous international envi-
ronmental crimes, achieve jurisdiction over them, subject them to fair
and impartial trials, and apply meaningful criminal sanctions if the ac-
cused are found guilty. Strategies should be contextual. For deliberate
destructive actions aimed at securing an unfair advantage or at meeting
a military strategic objective, resort to a seated or an hoc criminal tri-
bunal is merited. But those conditions will be rare.
For other enforcement goals, continued movement toward civil lia-
bility is more advisable. There have been some promising steps. UNEP
encourages states to develop a civil liability regime. The 1982 Jeddah
Regional Convention on the Protection of the Red Sea and the Gulf of
Aden Environment introduced its consideration. The Law of the Sea
Convention, in article 235(3) of the 1982 UNCLOS, has gone perhaps
as far as any international instrument in this area:
With the objective of assuring prompt and adequate compensation in
respect of all damage caused by pollution of the marine environment,
States shall co-operate in the implementation of existing international
law and the further development of international law relating to re-
sponsibility and liability for the assessment of and compensation for
damage and the settlement of related disputes, as well as, where ap-
propriate, development of criteria and procedures for payment of ad-
equate compensation, such as compulsory insurance or compensa-
tion funds.
In 1997 the Institute of International Law adopted a resolution de-
claring that the “breach of an obligation of environmental protection es-
tablished under international law engages responsibility of the State (in-
ternational responsibility), entailing as a consequence the obligation to
reestablish the original position or to pay compensation.” It called for
environmental regimes “to include specific rules on responsibility and li-
ability” and “strict liability of operators as the normal standard.”
Once adequate substantive liability rules are put into law, they must
be accessible. In 1960 the Paris Convention and in 1963 the Vienna
Convention required victims of nuclear damage to make claims in fora
extremely far from the point of damage. [By their terms they do not
clearly allow for claims for environmental damage, although increased
acceptance of that view has been noted (Sands 1995a, 161).] In the Bho-
pal disaster, releases of a toxic chemical from a Union Carbide factory
in India led to the death of thousands and injury to hundreds of thou-
sands. There legal liability and access to justice were problems in India
and the United States.
In general, movement toward a more formal understanding of the re-
sponsibilities of nations and the private sector adds an element of seri-
ousness to the statements countries sign about the environment. Re-
quired is (Sands 1995a):
The establishment of procedural safeguards, presumptions, rules of
evidence and interpretation which define the legal process, including
the notions of fault, accountability and blameworthiness. . . . Such
settlement may be weak in that there are no police to enforce it. But
as it inevitably creates a norm (instead of applying one) . . . (quoting
Sir Robert Jennings) “A plea that X is depleting the ozone layer may
be legally less effective than a plea that, in so doing, X is not only de-
pleting the ozone layer but also, being in breach of the 1985 Vienna
Convention on the Ozone Layer, is in breach of the general inter-
national law of treaties and of its cardinal principle of pacta sunt
servanda.”
Hortatory approaches to increase compliance also deserve further
use. These small steps can have a greater potential to be effective in cer-
tain circumstances than that of sanctioning efforts. For example, if a
member of the International Labor Organization fails to carry out a rec-
ommendation of the commission, the International Labor Conference
may take any action “it may deem wise and expedient to secure com-
pliance therewith.” Reports may be required from the members and ex-
amined by a committee of experts. The experts may note with “con-
cern” or “regret” the implementation status of a country. Annually, a
committee of experts may single out serious cases of noncompliance or
violation. This negative publicity holds promise for improving the be-
havior of a member state—and even a nonmember state (Koskenniemi
1996, 246).
Hortatory statements when emphasized by respected spokespeople
or energetic diplomats can also make a difference in the world’s reac-
tions to suggested legal reforms. The leadership styles of Mostafa Tolba
of UNEP and Maurice Strong are effective. Personality cannot be
cloned, but it is worthwhile to seek and to support committed leaders

who prioritize compliance with international agreements. Persistence
and charisma effects generalize to the largest global arenas.
NGO Involvement
A proper role for NGOs must be created, but what status should non-
governmental organizations be granted in negotiating treaties and in
meetings of the parties? 7 How formal a role in implementation should
they assume? The amount of authority given to nonofficial actors is an
important international policy matter.
Since citizen participation became widespread in the sixties in the
War on Poverty in the United States, it has become a goal impossible to
deny. It has meant creating roles for individuals and groups who do not
have official governmental positions so that they can become involved in
decision making. Citizens engage in activities ranging from commenting
in public hearings to serving on committees that have specified govern-
mental authority. Examples of the use and misuse of this approach are
legion in both the social and environmental movements.
In the newer generation of activities, organized private citizens with
interests in the international environment and NGOs or environmental
NGOs have places at the table with negotiators and decision makers.
They (1) advise representatives to treaty making in written and verbal
forms, (2) introduce scientific background materials, and (3) engage dis-
pute resolution processes by bringing actions against parties or entities
within parties for failure to meet the objectives of a treaty.
Unofficial actors may help official representatives recognize and build
on innovative strategies for policy development and implementation.
They may be active locally in suggesting and implementing policies that
are state treaty responsibilities. They may influence green attitudes to-
ward risky behavior and promote consumer practices that enhance the
viability of legal instruments (Drumbl 1999). NGOs may offer examples
for national and international action. Greenpeace and other environ-
mental NGOs have for several decades suggested policies outside the
boundaries of official national positions, but they are influential in mak-
ing countries’ positions more environmentally aggressive. Internal poli-
tics may constrain the stances taken by nation-states at international
meetings. Politics may be short-term and shortsighted and not represen-
tative of even the subject country’s interests. The posture of the United
States during the Earth Summit negotiations was a “textbook illustra-
tion that the realpolitik that motivates participants in international ne-

gotiations is not necessarily or even usually the interests of their nation.
Their positions are frequently driven instead by the narrow and imme-
diate partisan political needs of whoever is in power” (Shabecoff 1996,
136). NGOs can take positions that transcend the routine output of in-
dividual administrations. They can also be a force to prevent backslid-
ing by a nation-state, to counter its free-riding (benefiting from a multi-
lateral agreement that it does not support), and to expose instances of
noncompliance (Cameron, Werksman, and Roderick 1996).
NGOs have played important roles in several international spheres.
At the Rio meeting, their presence was invaluable for realizing elements
of an agenda that some states had characterized as too aggressive. Or-
ganizations active at Rio were the Third World Network and the Envi-
ronmental Liaison Center for the developing-country NGOs, the
U.S. Citizens Network, the Consortium for Action to Protect the Earth,
Friends of the Earth, the Sierra Club, the Environmental Defense Fund,
the Natural Resources Defense Council, the National Wildlife Federa-
tion, the National Audubon Society, the European Environment Bureau,
and the Congress of NGOs (which has United Nations consultative sta-
tus) (Shabecoff 1996, 150). NGOs were visible and involved in negotia-
tions for the Montreal Protocol in a way modeled on CITES, which
strongly endorses their participation. At the global climate change Con-
ferences of the Parties, NGOs from all over the world are advocating po-
sitions and providing assessments of scientific information and recom-
mended strategies. They number in the hundreds. and there is a rational
process for their recognition. Officially under the regime, the Confer-
ence of the Parties or the Secretariat can utilize NGO services, coopera-
tion, and information [FCCC article 7(2)(1)], admit NGOs to sessions
[FCCC article 7(6)], engage “legal entities” to work on emission reduc-
tion programs [Kyoto Protocol article 6(3)], and coordinate expert re-
view teams that include NGO representatives (Kyoto Protocol article 8).
NGOs can comment on the scientific basis for a recommendation. They
sit as observers of all open meetings at the conference and have regular
contact, including in environmental NGO briefings.
The Land Mines Treaty is another example of effective NGO involve-
ment. Among the factors linked to success of this initiative (in addition to
clearly specified deadlines and outcomes realizable in a reasonable period
of time) was the strategic coalition of nongovernmental groups that came
together with national entities; they undertook a campaign-style diplo-
macy that overcame the staid diplomatic resistance of some states.
NGOs can contribute distinctive skills and resources that promote in-
ternational cooperation, and they may enhance the abilities of states to
regulate globally (Charnovitz 1998b), but the “long-term effects of
NGO participation on the international system are not clear. Wider par-
ticipation is not an unmitigated good. While NGO participation eases
political pressures (often from the same groups) and enhances the abil-
ity of states to create and maintain international regulatory rules, such
participation brings with it dangers of capture, missed opportunities,
and slower, more complex negotiations” (Raustiala 1997a, 737). In
short, for environmental lawmaking, “civil society is not inherently
‘good’ and state power ‘bad.’” (726).
Several other caveats exist. NGO participation usually heightens in-
fluence of the developed nations to the further disadvantage of the Third
World. Purely logistically the large numbers of NGOs may be difficult to
accommodate. Where not prohibitively numerous, NGO commentary
may be irrelevant or it may displace useful negotiation by states. Ac-
commodating numerous NGO positions may result in “least common
denominator” policy positions or harmonization downward of interna-
tional rules (Raustiala 1997b). Sometimes NGO presence does not add
fresh and necessary perspectives; rather, certain NGOs exist for exclu-
sionary or nationalistic purposes. Others, especially in regions with im-
mense competition for limited external resources, work mainly to pro-
mote their own goals. They may, as in the Caspian Sea region, effect a
“negative civil society” that is no more than a “counter-productive wel-
fare program” (Sievers 2001, 394). Nearby, BSEP head Laurence Mee
stated (in UNDP et al. 1998, iii):
Where are the Black Sea NGOs in all of this? Sadly, their role is often
as weak as the governmental agencies. In many cases, they are discon-
nected from the “grass roots” of society and have become special in-
terest “clubs” of individuals who huddle together shielding themselves
from the outside world. . . . It sometimes surprises me . . . that so much
energy is put into meetings rather than “hands on” activities.
If international law is to behave more like other law, NGOs should
not be decision makers. Their views should be solicited, and they should
be given adequate time, within reason, to present to official bodies. But
NGOs are self-appointed and not necessarily democratically represen-
tative, although they must respond to the values and concerns of their
members. They should not be able to bootstrap themselves into posi-
tions filled by people who must meet the stringent appointment and re-
view processes of international law. Where NGOs promote interests not

otherwise represented, however, their roles in treaty making and imple-
mentation should be more central and stronger. Third parties can legit-
imately and effectively represent the interests of nature and its species.
Although details remain as to who should be chosen to represent, these
can be addressed, as Christopher Stone (1993) has attempted to do in
his call to establish a system of guardians to defend the global commons.
NGOs played an appropriate role during discussions of the Montreal
Protocol. The protocol was negotiated under a “polycentric model of
decision making” (Shabecoff 1996, 125). “Environmentalists, scientists,
corporate executives, and other outside interests, including the media,
were integral parts of the process, pressing their own points of view . . .
a more open, democratized diplomacy, vastly different from the diplo-
macy of traditional realpolitik.”
NGOs can also be influential in decisions not to participate, as
they were in response to a 1999 invitation by the Organization for Eco-
nomic Cooperation and Development to discuss exemptions of certain
waste shipments from the Basel Convention. They reasoned that by be-
ing involved they would be a part of a process undermining the Basel
waste trade ban (International Environment Reporter, 10 November
1999, 919).
Finally, international law can promote productive activities among
NGOs, even if these are only of an advisory nature. Just as collaboration
among nation-state representatives fosters appreciation of strongly held,
but previously not understood, positions of other nations, NGO inter-
actions can foster understandings needed to create and implement in-
ternational law. Models include formal government-funded groups,
such as the Joint Public Advisory Committee of the CEC, and more in-
formal processes, such as that associated with the Black Sea Environ-
mental Program or Yellowstone to Yukon described in Chapter 4 (Le-
vesque 2000).
Environmental Impact Assessment

Environmental impact assessment (EIA) should be undertaken at several
steps of regime creation. International circumstances are sufficiently dis-
tinctive to merit advocacy of analysis of proposed projects that can have
a major environmental effect, despite deserved criticisms in regard to
domestic law use.
Some critics consider EIA to be overly focused on process, to give to

citizens the appearance of involvement in decision making while limit-
ing their actual substantive effect, to be expensive, and to be insuffi-
ciently controlled to make a difference. However, influencing decision
makers through information presentation, turning a focus to environ-
mentally controversial projects, calling attention to the differential envi-
ronmental effects of projects across boundaries, and adding new sources
of data to the decision-making record are important functions. EIA can
channel discussion of highly charged international issues into manage-
able fora. President Clinton’s November 1999 executive order, requiring
environmental review of proposed trade agreements, is an example.
Written reviews, undertaken early in both bilateral and multilateral ne-
gotiations, were to be monitored by both the Council on Environmen-
tal Quality and the Office of the U.S. Trade Representative and made
widely available for public comment (International Environment Re-
porter, 24 November 1999, 948). The World Bank’s attempts to address
environmental impacts associated with its lending is another step to-
ward making the bank’s actions more transparent and thus more sub-
ject to evaluation (International Environment Reporter, 29 September
1999, 798).
Some scholars conclude that EIA is already an element of customary
international law (Hunter, Salzman, and Zaelke 1998), and regional im-
pact assessment regimes exist in a small number of settings (Knox
2002). Experiences with EIA in the Economic Commission for Europe,
OECD, the European Community, and NAAEC have been promising.
The analytical framework for the latter was developed collaboratively
by the parties, subjected to rigorous expert review, and customized to
make application realistic. It is being applied progressively to various
environmental stressors. The concept has been adopted in the Protocol
on Environmental Protection to the Antarctic Treaty (annex 1, at
Madrid, 4 October 1991) and is the subject of the Convention on Envi-
ronmental Impact Assessment in a Transboundary Context, done at
Espo, Finland, in 1991 (30 ILM 800, signed 25 February 1991). That
treaty would require each party to establish an EIA process that permits
public participation, to undertake an EIA for listed projects that are
likely to have adverse transboundary impacts, and to notify affected
parties of proposed activities. Conversely, the climate change regime
fails to undertake adequate environmental impact assessment of pro-
posed policy choices (Taylor 2000 –2001). Needed is more assessment
of policy alternatives, including technology-based approaches and those

based on new economic and ecological strategies.
Guidelines that parallel those developed by nation-states are neces-
sary: what is a major action that affects the quality of the regional or
world environment? It is also necessary to alter the rules “widely pro-
vided” that the state proposing is the only determinor of the likelihood
or seriousness of adverse impact and that the conclusion of the source
state is final (Okowa 1997, 284). Broad access to the creation of the as-
sessments and broad dissemination of results, including to the public,
should be provided. To build a strong EIA process internationally, other
questions need to be considered,8 but they do not raise insurmountable
negotiating issues.
EIA procedures and knowledge-based strategies build on the public’s
right to know and to have access to relevant information about envi-
ronmental issues that affect it. The embryonic Aarhus Convention holds
some promise. Aarhus provides as its objective:
In order to contribute to the protection of the right of every person of
present and future generations to live in an environment adequate to
his or her health and well-being, each party shall guarantee the rights
of access to information, public participation in decision-making,
and access to justice in environmental matters in accordance with the
provisions of this Convention.
The recommendation of more widespread use of environmental im-
pact analysis reemphasizes the obligation of countries to consult when
they are considering major actions that can have substantial environ-
mental effects across borders.
Secretariat Design
Administrative entities for multilateral environmental agreements
(MEAs) must be custom designed to help solve specific global environ-
mental problems. Ultimately law, domestic or international, is imple-
mented by organizations created by legislation or treaties, funded and
staffed by political actors. A focus on institutional characteristics is es-
sential for effective international environmental law. Proper design
avoids excessive routinization of international law, an outcome that has
taken place in some national environmental agencies. At the same time
it is also important to provide for needed processes and standard oper-
ating procedures. Some routine is necessary for law to achieve credibil-

ity. Without predictability there will be very little trust in a new inter-
national entity.
One element of design is the size of international institutions; this
dimension has been addressed in relationship to performance. Large-
ness does not necessarily indicate waste, inefficiency, mismanagement,
and corruption, as developed countries have often said about the United
Nations. The developing countries have raised similar concerns about
the Bretton Woods organizations: the World Bank, the International
Monetary Fund, and the former GATT (Gosovic 1992). At times, how-
ever, size does correlate with complacency and inflated rhetoric about
improving environmental quality. Environmental law’s agents, as any
other type of growing human enterprise, should be subjected to system-
atic analysis and evaluation.
Another issue in organizational development is whether integration
or differentiation best reaches stated goals. Some analysts advocate sec-
retariats that administer multiple environmental treaties. Except, for
example, with the integrated Law of the Sea negotiations, international
environmental agreements have generally followed a pattern of differ-
entiation that has provided flexibility and efficiency. One cost of organi-
zational differentiation is absence of coordination and treaty congestion.
Sjoberg (1996, 161–162) suggests, however,
Should the Conventions decide to use the GEF as an integrated finan-
cial mechanism for global environmental problems, the contours of
an entirely new type of regime emerge. . . . A regime established along
these lines preserves the flexibility that has been the hallmark both of
the process whereby legal agreements have been created and the evo-
lution of the GEF. Rather than create a formal organization, this re-
gime is more decentralized and builds on linkages between units with
different purposes. Its design is in line with findings in organizational
theory which suggest that while a hierarchical model works well in a
stable environment, an organic and decentralized form is most ap-
propriate in areas and times of change.
GEF itself may be a controversial choice. Many nations consider its
priorities narrow or biased toward the West. In any event, further con-
sideration of a 1991 UNEP recommendation on coordination is merited.
Enhancing policy clarity and consistency is one goal, but there are oth-
ers. The UNEP director proposed the creation of an intersecretariat
coordinating committee to promote more effective monitoring and in-

formation dissemination, including through reports on means of im-
proving verification activities. Also suggested was establishing monitor-
ing systems even where agreements do not call for them. This idea was
deferred and has limited application to instruments initiated through the
United Nations, but it is a relatively promising means of increasing
knowledge about implementation of international law.9
The suggestion that secretariats should be merged and that functions
should be integrated across environmental treaties comes from conclu-
sions that some secretariats are working at cross-purposes with others,
that efficiencies in allocation and use of financial resources can be
achieved with integration, and that learning about systemic elements of
international environmental degradation can be fostered by proximity
of staffs and scientific advisors and consultants. Oil pollution’s effects,
fisheries knowledge, seabed resource exploitation, and conservation
should be considered as one challenge, not as independent phenomena.
In theory, the suggestion is persuasive; however, a few secretariats are
sufficiently successful (such as that of the Montreal Protocol) that to re-
quire a change in direction would jeopardize further progress. More-
over, the science needs to be improved before organizations are merged
on the basis of understandings of the synergies in environmental degra-
dation and repair, such as between climate change and ozone depletion.
Finally, efficiencies linked to integration of functions may best come
with new ideas for secretariats; otherwise there may be a tendency to du-
plicate, rather than to streamline organizational elements. Pluralism and
competition are healthy in this early period of international environ-
mental law and policy.
When a secretariat is professional and fair and is moving the global
environmental agenda, its authority should be enhanced. This is the
case, for example, with the CEC. Because of the need for political over-
sight, strengthening should be subject to a periodic review at the minis-
terial level with the default on failure to evaluate being continuation of
the authority. Strengthening a secretariat involves, as for the United Na-
tions generally, providing for a professional, independent, and moti-
vated staff and adequate independent financing that will reduce depen-
dence on major donors (Gosovic 1992, 211).
In secretariat design a balance must be struck between the public’s
right to know and incentives to encourage national cooperation to as-
sure that data supplied to meet treaty goals are protected. The FCCC ad-
equately addresses this concern in article 12. The aim of some reforms
is to assure that information exchange is full, open, and prompt, but sec-
retariats must earn the reliance that nation-states put on them to care
properly for sensitive and proprietary information (Susskind 1994b).10
Although a single world environmental organization is not useful, in-
ternational environmental law can be strengthened by organizational
improvements. Existing secretariats, part of a regime of law, need to
convert their missions to concrete actions that address environmental
quality. To do so, several secretariat characteristics are important. Flex-
ibility in responding to environmental problems and to changing infor-
mation is high on the list. Perceived legitimacy of the secretariat is im-
portant—by those who must be managed whether they be nations, oil
companies, farmers, tourists, or ordinary daily consumers of environ-
mentally sensitive products. Openness to public input and transparency
of decision making are significant attributes. Operational capability (the
wherewithal, in human and economic terms, to carry out a program) is
essential as well. Without those resources the best designs can be
stymied. Good professionals without considerable financial resources
are more effective overall than inexpert professionals with flush re-
sources. Ultimately, given the immense challenges of cleaning world
oceans, stopping global warming, saving endangered species, and pre-
venting waterborne environmental health disasters, both accomplished
people and considerable funds are necessary.
Creating effective secretariats admittedly is a tall order. Limitations
and gaps are typically not the fault of staff or a function of mistakes in
design. The issue is much larger than individual personalities or ele-
ments of organizational structure.
Effective models are not known for confronting challenges that affect
hundreds of nations, using different languages, accepting responsibility
differentially, emphasizing drastically different values, in facing a task
that requires addressing multiple issues. To be sure, theorists have of-
fered approaches to dealing with uncertainties, ambiguities, knowledge
gaps, varying risk assessments, and other characteristics of complex
problems. They speak of “future-responsive-societal-learning” (Michael
1973) and transactive management. As recommended earlier, some of
these strategies need to be tried, but there is little empirical review of
them, and as Italian Nobel prizewinner Carlo Rubbia noted, “there is
not a mature decision-making structure that is capable of governing
global environmental emergencies, to make decisions in the interests
of all.” 11
A focus related to organizational design is on the growth of the
international law itself. No doubt there will be discoveries and realiza-

tions that call for new international laws. POPs is a recent example. But
the international community needs to attend to making existing laws ef-
fective, to improving them, and to coordinating their implementation.
Edith Brown Weiss (1992, 12) focuses on administrative, monitoring,
and financial provisions. She rightly says that it is time to slow the rate
of negotiating international agreements, since resources needed to
engage in global environmental diplomacy are burdening developing
countries. The effective implementation of agreements already con-
cluded is a priority, presaging greater reliance on soft law.
Treaty development is best facilitated after further work generates
at least general agreement on priority problems. The field of biodivers-
ity protection is both an example and a metaphor. Scientists have iden-
tified about two dozen areas, from California to the Caucasus, that
they label hot spots for native species protection. These are defined,
among other characteristics, as places with 1,500 or at least half a per-
cent of the world’s 300,000 plant species as native. Focusing efforts,
including international legal efforts, on these areas makes the biodiver-
sity crisis more manageable and may be preferred policy. Conversely,
if the hot spots degrade further, a large proportion of global biodiver-
sity will be lost regardless of success elsewhere (Stevens 2000). Pro-
tecting vertebrate and plant species is also said to protect insects and
invertebrates.
Selectivity is attractive (perhaps essential) and generalizes theoreti-
cally to other foci of international environmental law. This idea must be
analyzed critically, however. It can be abused to promote unneeded de-
velopment, and it can create international environmental injustice if hot
spots tend to be found only in certain regions.
Incentives for Cooperation

Most efforts at implementing international environmental law, whether
generated by top-down or participatory mechanisms, benefit from the
strategic use of economic and other incentives. These are of several
types: subsidies, direct payments, loans, taxes, trading schemes, trans-
fers, and innovative interpretations of global property rights.
Global Environment Outlook 2000 (141) points to a number of suc-
cesses with their application at the regional level. Reporting obligations
under the Montreal Protocol were met much more commonly after fi-
nancial assistance was given to developing countries. The number of
parties providing data rose to 73, well above the 18 that had reported
by 1992. European Union law provides several incentives to promote
cooperative movement toward environmental goals.12 Elsewhere, the
Convention on the Prohibition of Military or Any Other Hostile Use of
Environmental Modification Techniques, the Barcelona Convention for
the Protection of the Mediterranean Sea Against Pollution, and the
Cartagena Convention for the Protection and Development of the Ma-
rine Environment of the Wider Caribbean Region offer new ideas on
technology transfer and technical assistance for developing countries.
They address the terms under which transfer is to take place, the role of
patent and other intellectual property rights, and innovative develop-
ment and enhancement of endogenous technologies of developing coun-
tries (Susskind 1994b, 123).13
A fully functioning environmental protection regime that exploits
economic forces requires some changes in international property law
under which it is now difficult to establish and protect rights. It will be
necessary in climate change and in other areas of international commons
regulation to develop structures to facilitate the exchange of rights in or-
der to enforce rights (Esty 1999). The more difficult a problem is to com-
prehend and the broader the spread of harm, however, the more difficult
it is to internalize externalities (a fundamental property goal) and to
achieve collective action (1546). Thus environmental law and policy ex-
perts should emphasize incentives and property concepts that foster en-
vironmental improvements and technology transfer. Environmental ed-
ucation (including preambles to policy instruments) should recognize
that developed countries are polluting out of proportion to their num-
bers, violating fundamental but not yet legally recognized property no-
tions. Relevant is Garrett Hardin’s conclusion about commons proper-
ties: for certain problems “mutual coercion mutually agreed upon” is
essential. Customary law also provides that the “principle of permanent
sovereignty over natural resources requires each state to respect all other
states in the use of their natural resources, which inherently includes the
obligation not to cause transboundary pollution” (Perez 1996, 1212).14
When the task is clear and depends less on major policy concerns of
a state than on availability of resources, direct economic assistance is
reasonable. Dependence on incentives, however, can communicate that
nations have an obligation to comply with international environmental
standards only if they are subsidized. Incentives without greater in-
volvement in attempts to build capacity in developing countries can be
counterproductive. The funding commitments in the Montreal Proto-
col, the FCCC, and the Biodiversity Conventions are narrow means of
capacity building. Attempts to increase the number, strength, compe-
tence, and constellation of governmental and NGO actions; to make rel-
evant information more available; and to foster institutional relation-
ships are superior. “True capacity-building involves a reconfiguration of
political, economic, and social institutions; in some cases, it may even
require these institutions to be created outright” (Drumbl 1999, 304).15
Some environmentalists do not accept that the less developed coun-
tries must be subsidized for movement toward environmental protec-
tion; development patterns of the industrialized nations are not an enti-
tlement of all nations. In fact, some say, they were a mistake. What is
needed is not a guilt-ridden policy that fosters further global destruc-
tion; rather, programs should admit the failures of the past and move
forward both in the first and third worlds with less destructive consumer
and development patterns. Incentives, subsidies, and technology should
nonetheless be made available through international legal instruments.
There is some possibility that replication of destructive patterns will oc-
cur, but the next generation of international environmental protection
must be aware of the limitations of law to influence behaviors that are
among the most fundamental of the species. If Third World countries
are forced to choose between economic development and environment,
the economy will prevail. Movement in the direction of enhanced pro-
tection can come only through realistic steps that recognize a politics
that is not driven (in the absence of egregious environmental disasters)
by environmental concerns alone. Thus subsidies and other incentives
should be parts of treaties. In return, the treaties should create expecta-
tions of increased contributions by the south and be contingent on mea-
surable progress by those nations.16
Trade Sanctions
Powerful forces of the market should be recognized in creating and im-
plementing multilateral environmental agreements. The relationship be-
tween economics and international environmental stewardship is no-
where more important than in consideration of the use of trade
sanctions. They are implicated in global environmental law in two crit-
ical ways. Trade sanctions may be employed to reach environmental ob-
jectives (trade-related environmental measures, or TREMS), and they
are employed in trade agreements to punish alleged misuse of environ-
mental law.
At least 20 treaties authorize some form of trade sanction to influence

members. CITES is based centrally on regulation of trade of protected
species. It also provides that parties may adopt stricter measures re-
garding conditions of trade of species, both included in its appendices
and not so included [article 14 (1)]. The provisions of CITES do not af-
fect domestic measures or treaty obligations “relating to other aspects
of trade,” including those that address public health and other matters
[article 14 (2)]. The convention does not affect regional actions that
maintain or remove customs control insofar as they relate to trade
among the region’s members [article 14 (3)]. The Montreal Protocol pe-
nalizes nonparties by placing restrictions on their access to foreign mar-
kets. Noncompliance with prior informed consent requirements of the
Basel Convention can lead to a ban on the importation of hazardous
wastes. Other important environmental agreements with trade provi-
sions are the Convention on Biological Diversity (1992), the FCCC
(1994), the Rotterdam Convention on the Prior Informed Consent Pro-
cedure for Certain Hazardous Chemicals and Pesticides in International
Trade (PIC 1998), and the Cartagena Protocol on Biosafety (2000). De-
spite these potential sources of trade sanctions, the United Nations re-
ported at the end of 1999 that “fortunately, no formal dispute has yet
occurred in the WTO over the use of trade measures contained in multi-
lateral environmental agreements.” 17
Domestic law also may authorize trade sanctions. Under the 1971
Pelly Amendment to the Fishermen’s Protective Act of 1967, the United
States may use sanctions for environmental violations of exporting
countries. Under the 1979 Packwood-Magnuson Amendment to the
Fishery Conservation and Management Act of 1976, the U.S. Secretary
of State must reduce a foreign state’s fishing quotas in U.S.-controlled
zones if the Secretary of Commerce certifies that the state is engaged in
actions that diminish the effectiveness of the International Convention
for the Regulation of Whaling. Without the threatened use of trade sanc-
tions by the United States to enforce compliance with the United Na-
tions resolution on high-seas driftnet fishing, Japan, South Korea, and
Taiwan likely would not have stopped their destructive activities
(Makuch 1996; Rollin 2000).
TREMS may directly affect violating companies. Trade bans jeop-
ardize a firm’s capacity to do business abroad. Limitation of access to
major markets is a severe penalty for companies, which communicate
their concerns to their governments. TREMS are controversial, how-
ever. Even if adopted, the question arises whether the penalty would ac-
tually be imposed, as opposed to becoming a symbol of a larger inter-

national relations disagreement. If imposed, the measure may not al-
ways influence actions of the noncomplying state in the direction de-
sired. An unintended consequence is to solidify opposition to other
parts of a multilateral environmental agreement.
Trade sanctions can also work at odds with environmental law. In
some situations (such as GATT, its successor institution the WTO, and
NAFTA), sanctions may be imposed if environmental standards are con-
sidered discriminatory trading behavior. A trading partner may allege
that the environmental action is a disguised barrier to free trade, or an
investor from one party can submit a claim that a putative environmen-
tal measure is a protectionist act or even an expropriation (chapter 11
of NAFTA).18 This may have a chilling effect on lawmakers, inhibiting
them from incorporating regulatory measures and other instruments. If
the challenger prevails, environmental controls may need to be lifted or
the challenging party compensated.
The Charter of the International Trade Organization, which was to
provide the institutional home for GATT but never entered into force,
specifically allowed countries to take measures pursuant to an intergov-
ernmental agreement relating to the conservation of fisheries, migratory
birds, or wild animals (Makuch 1996, 101). Later the WTO (established
in 1995 subsequent to the 1993 Uruguay Round of trade negotiations)
did take steps toward the inclusion of environmental protection and sus-
tainable development within the world free-trade regime. For example,
in the shrimp-turtles case, Thailand and other nations challenged the
United States for imposing import limitations on shrimp from countries
that had allegedly inadequate conservation measures for endangered
turtles. The WTO’s appellate body recognized the principle that unilat-
eral measures aimed at environmental protection could be valid, al-
though in that case the United States was initially found to have failed
to meet WTO requirements.
The environmental exceptions to the requirement that a law incon-
sistent with trade rules must be withdrawn or changed are found in ar-
ticle 20 of GATT. A state wishing to use the exception must justify its
use and select the least trade-restrictive measure available to achieve its
objectives. Environmentalists assert that the WTO provisions on sani-
tary and phytosanitary regulations are too narrowly defined, that the
Agreement on Technical Barriers to trade will force downward harmo-
nization of environmental law, and that WTO dispute settlement proce-
dures are not transparent and do not sufficiently recognize environmen-
tal interests.
The NAFTA regime takes some steps but does not go far enough in
integrating trade and environmental goals with regard to phytosanitary
provisions. On food and safety, NAFTA emphasizes the autonomy of
each signatory to establish its own sanitary and phytosanitary standards
and the right to vary them by region, provided the standards are based
on “scientific principles” (chapter 7). Chapter 7 also requires an im-
porter of goods from a less rigidly regulated region to prove with scien-
tific principles that the imported goods meet the safety requirements of
the more restrictive region. Other sections of NAFTA [chapter 9 and
article 904(2)] extend the assurance of autonomy from sanitary and
phytosanitary to more general environmental standards. In contrast to
the former, other environmental standards need not be justified by sci-
entific principles. NAFTA provides access to formal dispute resolution
procedures for certain food and safety and environmental claims. Other
articles (760, 762) encourage notification and cooperation among the
three parties.
The European Union has quite environmentally friendly trade rules.
It has well-developed institutions that allow NGO involvement and,
based on qualified majority voting, permit nations with strong environ-
mental policies to promote them aggressively in the face of free trade
challenges (Steinberg 1997). The EU has allowed dozens of actions har-
monizing sanitary and phytosanitary measures upward. It permits mem-
ber states to ban imports not produced according to EU environmentally
sensitive processes and production methods. In certain cases the ban
may be mandatory.
The EU serves as an excellent model for future trade-environment
agreements. I also recommend establishing objective panels (as objective
as they can be in these matters) composed of both trade and environ-
ment experts who give their views on the environmental intervention.
They can determine, for instance, whether a rule is based on the best
available expertise in the environmental sciences. Is it as narrowly ap-
plied as possible to achieve its aims? The burden of proof should take
into consideration all relevant factors, including the nation’s environ-
mental record. In rare situations where conflicts cannot be resolved, re-
sort could be to the environmental chamber of the ICJ.
The link between trade and the environment must put greater em-
phasis on the environment. In a world where trade regimes now regu-
larly trump environmental concerns, to call for greater coordination and
parity between environment and free trade is impotent without a major
new commitment of states to create that parity. To make this recom-
mendation meaningful, environmental ministries must be raised to a
status comparable to that of trade and commerce. Along the way, changes
in international rules on investment may further the environmental
agenda; they “could turn out to be the very tool for allowing policy mak-
ers to escape their ‘prisoner’s dilemma’ and pave the way for solutions
out of the race-to-the-bottom-scenario at the trade-and-environment-
interface” (Deimann, 1999, 37). Finally, as more world citizens begin to
understand trade organizations like the WTO, more balance with non-
trade societal goals is needed. Trade law “must be interpreted in light of
other rules of public international law” (Pauwelyn 2001, 577). Spe-
cifically the WTO should be pressed to pursue trade goals by emphasiz-
ing international negotiation over sanctioning (Oesterle 2001; Char-
novitz 2001).
RECOMMENDATIONS IN CONTEXT
Application of these recommendations must be realistic about the
potential for change among international law’s many subjects, from
the individual to the multinational organization. Patterns that have cre-
ated global environmental degradation are entrenched and not readily
changeable with either encouraging statements or commands without
controls and enforcement.
Some degrading actions are rational responses to systems that do not
sufficiently charge for violations. Others stem from poverty. As a Mexi-
can environmental planner said, “It is not easy to sell local citizens on a
dimly perceived environmental benefit, when the alternative can put
food on the poor family’s table. . . . A mature turtle is worth $50 to a
poacher for its meat, skin, and eggs, and it takes him an hour of work
in the cool night air to get one. To earn that much in another way, he’d
have to work two weeks at minimum wage harvesting watermelons in
the hot sun. What would you prefer?” (Kraul 1997). International envi-
ronmental law must go beyond adjusting the perceived costs of a viola-
tion. It must create benefits of compliance as well.
Recommendations must also address capacity to promote consensus
about ownership of global resources. As the tortuous negotiations over
the Law of the Sea made clear, agreement on international property
rules will not come quickly, but in areas as divergent as demarking zones
of territorial control and addressing the effects of deregulation and pri-
vatization, understandings of ownership effects can assist a move toward
international cooperation.
Building on the concept of resources of all humankind, a system is
needed to delineate natural resources that are not national resources.

Resources—fish, air, water, animals, plant materials—pass back and
forth through nations. The early treaties on migratory birds can serve as
models. That system will come slowly, and law cannot get too far ahead
of prevailing understandings. As an example, customary law of territo-
rial seas with its jurisdictional demarcation for fishing and economic
zones fails to take into account that environmental effects occur with-
out regard to that zoning. So, too, transboundary rivers have been sub-
ject to customary property law. Even its more progressive doctrine of
limited territorial sovereignty does not solve environmental problems,
including upstream. Rather, it creates other problems, such as effluents
in a limited national area and degradation of the groundwater.
Some advocates of a stronger international property law are clear on
what needs to be done. They argue for example that all commonpool
freshwater resources (those that cross political boundaries and are sub-
ject to externality problems) should be placed under international regu-
lation (Benvenisti 1996). The lakes, rivers, aquifers, and unrelated com-
bined groundwater need to be viewed as international water resources.
Recommendations for an evolving global law, however, must realize
that major international players are not yet ready to go so far.
Finally, until a major shift occurs in geopolitics, one important ele-
ment of effective international environmental law will remain absent:
binding jurisdiction, the inability to walk away from a legal commit-
ment if a party chooses not to comply. That major shift is in the balance
of power of nations. As long as there are countries who can abide by the
rules when they choose but fear no reprisals when they do not, interna-
tional environmental law will be subject to some of the criticisms with
which this book began. Balance of power in modern times, however, is
not only a military question. There are many forms of global influence,
as the nonhostile fall of the Soviet Union, the dependence of superpow-
ers on resource-rich states, and the adoption of treaties without partici-
pation by the United States suggest. Coalition building can create con-
ditions in which environmental law based on the principles articulated
above can succeed. To be sure, coalition building can also stymie envi-
ronmental law.
Verdicts about success of an international environmental law ulti-
mately depend on definitions. Global environmental improvement is
certainly a function in some part of international law within the set of
all law. Improvement will be variously understood. As we have seen, it
can be seen as cooperation aimed at improvements in environmental
quality. It may be viewed as creating a learning system among nations

with environmental improvement as the goal. It can be defined as con-
sensus resulting in learning that actually leads to objective improve-
ments, though blissful cooperative ignorance and deliberate avoidance
of difficult decisions are at least logical alternatives. It can have higher
standards: substantial implementation of cooperative mechanisms that
result in improvements in the air, water, flora and fauna, and natural re-
sources as measured by commonly accepted indices. From a global per-
spective it means improvements in all the areas addressed in this book:
the world commons, regional challenges, and across borders. If this per-
spective is realized, law will have played a necessary role.
NOTES
Chapter 1. Worldwide Environmental Quality and the Role of Law

1. Press release from the Committee on Resources (Don Young, Chairman),
U.S. House of Representatives, Washington, D.C., 15 October 1998, “Rhi-
noceros and Tiger Conservation Bills Sent to President Clinton.” The Javan,
Sumatran, and Indian rhino of Asia and Africa’s black and hook-lipped rhi-
noceros are in serious danger, but in South Africa both black and white rhi-
nos are flourishing through an interesting yet controversial program that in-
cludes privatizing their ownership (Stewart 2001). In some regions the tiger
has made a comeback; in others the species are near extinction.
2. U.S. Senate, Senator Jeffords speaking on “Protecting the Earth’s Soil Fertil-
ity, June 17, World Day to Combat Desertification,” Congressional Record
(17 June 1999), pp. S7238 –S7239, “Today, dust bowls are occurring in
more than 90 countries with an alarming annual loss of 10 million acres of
productive agricultural land worldwide.”
3. The first Global Environment Outlook (GEO) produced by the United Na-
tions Environment Programme (UNEP), in 1997, concluded on p. 237 that
“between 1700 and 1980, the amount of non-domesticated area decreased
globally by more than one-third—from about 95 percent to about 65 per-
cent . . . mainly due to the conversion of natural forests and grassland into
cropland and pasture.” The forest loss figures are from the same source,
p. 238, and from the 2000 GEO. The expected extinction rate is a 1995 fig-
ure, also from the 1997 GEO, p. 237.
Chapter 2. Law Trying to Save the Earth:

Strategies, Institutions, Organizations
1. Resolution 3436 (XXX) of 9 December 1975. The quantitative analysis of
treaties suggests that the proliferation may be decelerating somewhat. Meyer
and his colleagues (1997) concluded: “The total number of international en-
vironmental treaties has continued to rise in recent decades, but growth in
the rate of treaty formation has slowed, reflecting the emergence of more of-
ficial intergovernmental organizations. New issues are increasingly likely to
be handled by the expansion of extant official organizations rather than by
the signing of new, specialized treaties.”
188 Notes to Pages 14–39
2. The Prince-Bishop of Basel and the King of France in 1781 entered a con-
vention to protect game birds and forests (Van Heijnsbergen 1997).
3. “Bering Sea Fur Seals Arbitration” (Great Britain v. United States), re-
printed in J. Moore, International Arbitrations. History, 755 –961 (Wash-
ington, D.C.-Government Printing Office, 1898.
4. http://fletcher.tufts.edu /multi /chrono.html.
5. Formally called “Protection of Artistic and Scientific Institutions and His-
toric Monuments Treaty Between the United States of America and other
American Republics” (http://fletcher.tufts.edu /multi /chrono.html).
6. Influential newspapers paid only modest attention. New York Times,
18 May 1938, 4 June 1938, 25 June 1938.
7. Churchill and Ulfstein (2000, 625), for example, speak of “autonomous in-
stitutional arrangements” that are distinct from intergovernmental organi-
zations (IGOs) in that they are “more informal and more flexible, and often
more innovative in relation to norm creation and compliance.”
8. Sands et al. (1994, 25) categorize the history slightly differently, identifying
“at least four distinct periods” of international environmental law: from bi-
lateral fisheries treaties to 1945, from the creation of the United Nations to
Stockholm, from Stockholm to 1992 and the UNCED, and thereafter “the
period of integration: when environmental concerns should, as a matter of
international law and policy, be integrated into all activities.”
9. U.S. Constitution, Art II, sec 2, giving the president the power “by and with
the consent of the Senate, to make treaties, provided two thirds of the Sena-
tors present concur.”
10. The EU was formerly the European Community, created under the Treaty
Establishing the European Economic Community, 25 March 1957, 298
UNTS 3 (1958), commonly called the Treaty of Rome. It became the EU by
the Treaty of the European Union, Maastricht, 7 February 1992. The EC has
international legal personality, and the EU encompasses it, the European
Coal and Steel Community, and the European Atomic Energy Community.
The EU also encompasses the Common Foreign and Security Policy and the
Justice and Home Affairs (Jaquemont 2001).
11. The International Law Commission in 1994 prepared a draft statute for a
Permanent International Criminal Court. In July 2002, enough nations had
signed the resulting agreement made in Rome (discussed in Chapter 5) for it
to enter force. There is little expectation, however, that this will be a com-
mon forum for environmental issues.
12. Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221 (1986),
pp. 229 –230.
13. Some environmental regimes, as we shall see, bear little relationship to gen-
eral international law. Compliance control replaces the more traditional
processes of dispute settlement, violation, and sanction. Implementation is a
financial or technical issue addressed through consultation and help, instead
of being viewed normatively; blameworthiness and punishment are irrele-
vant. Although many environmental treaties, for example, contain a clause
on the settlement of disputes, there is little belief that compliance can be ad-
Notes to Pages 41–53 189
dressed through a fault and attributability regime, such as under the legal
doctrine of state responsibility. Criticisms of international law in general are
well summarized by Koh (1997), who describes the attacks by many legal
philosophers including Hans Kelsen, John Austin, and H. L. A. Hart. Koh
also points out that in 1789 Jeremy Bentham coined the term “inter-national
law,” which rejected “the monistic vision of a single, integrated transna-
tional legal system in favor of a notion that the public law of nations oper-
ates on a separate horizontal plane for states only” (2609).
14. Southern Bluefin Tuna (Australia and New Zealand v. Japan) http://www
.worldbank.org/icsid//bluefintuna/award080400.pdf, 4 August 2000.
15. Handelskwekerj GJ Bier v. Mimes de Potasses d’Alsace.
16. A party may also register a declaration simply stating that despite acknowl-
edging that convention procedures have been followed, it does not accept a
regulation. Japan, Norway, and the former USSR used this entity to reject
the zero whaling quotas of the IWC in the 1980s (Lyster 1985).
17. 29 November 1969, completed by a London protocol of 2 November 1973.
18. Compliance may not be truly significant in itself in all regimes. Some in-
ternational agreements are entered only when a nation-state understands that
it will be in its interest to, convenient to, easy to comply: “We do
not know what a high compliance rate really implies. Does it mean that even
in the absence of enforcement states will comply with any agreement from the
set of all possible agreements, or does it mean that states only make agree-
ments that do not require much enforcement” (Downs, Rocke, and Barsoom
1996, 383). Toward one major goal, environmental improvement, some ob-
servers conclude that low compliance with challenging standards
is superior to high compliance with lesser standards (Victor, Raustiala,
and Skolnikoff 1998; Mitchell 1996). Still others conclude that “even perfect
compliance with a strong regime is . . . not a sufficient condition for achiev-
ing policy goals defined in terms of biophysical impact” (Miles et al. 2001, 7).
19. See Declaration by the Ministers of the Environment of the Region of the
United Nations Commission for Europe (UN/ECE) and the Member of the
Commission of the European Communities Responsible for the Environ-
ment, 7 para. 22.1 (30 April 1993).
20. The provisions of the treaty illustrate the sensitivity, caution, and deference to
sovereignty with which international environmental treaties are written. Ar-
ticle 10(3) of the Vienna Convention reads: “The Parties shall make every ef-
fort to reach agreement on any proposed amendment to this Convention by
consensus. If all efforts at consensus have been exhausted, and no agreement
reached, the amendment shall as a last resort be adopted by a three-fourths
majority vote of the Parties present and voting at the meeting, and shall be
submitted by the Depository to all Parties for ratification, approval or ac-
ceptance.” Article 8 of the Montreal Protocol walks softly as well: “Non-
Compliance. The Parties, at their first meeting, shall consider and approve
procedures and institutional mechanisms for determining non-compliance
with the provisions of this Protocol and for treatment of Parties found to be
in non-compliance.”
Chapter 3. Law’s Targets: Whose Behavior Needs to Be Influenced?

1. United Paperworkers Int’l. Union v. Int’l. Paper Co., 985 F.2d 1190 (1993),
noted in Rice (1993).
2. France’s Ministry of Industry reported in 1999 that French companies favor
by a large margin use of end-of-pipe technologies over investments in new
clean technologies (International Environment Reporter, 1 September 1999,
733). Some elements of international property law need to be made more
flexible if benefits based on widespread dissemination of green products are
to be more fully effective. The WTO’s Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPS) sets generous rewards for holders of
intellectual property rights. For example, some rights including patent pro-
tection extend 20 years. In Chapter 5 I argue that liberal interpretation of
the exception to TRIPS is necessary: members of the world body are not ob-
ligated to grant patents for products or processes where “the prevention . . .
is necessary to protect . . . human, animal or plant life or health or to avoid
serious prejudice to the environment.”
3. The curve is named for the economist Simon Kuznets, who described the re-
lationship between growth and economic inequality.
4. In May 2001, OECD countries pledged to phase out within a decade envi-
ronmentally degrading tax exemptions and subsidies to the energy and agri-
cultural sectors (Environment News Service, 17 May 2001).
Chapter 4. An Accounting: Successes and Failures

in International Environmental Law
1. Nonetheless, Susskind gives “several reasons to be pessimistic about the
prospects for achieving the level of cooperation required to manage shared
(or common) resources like the ocean, space, Antarctica, the atmosphere, or
the diversity of species” (1994a, 18). They are the north-south split on these
issues, the persistence (he calls it “stubborn”) of national sovereignty, and
the lack of incentives for nations to bargain.
2. Others find overall assessment too difficult: “International environmental
law is so many-sided that a simple description of its status is impossible. The
picture is in fact rather contradictory; in some respects dynamic and inno-
vative; in other respects extremely cautious and conservative. On some is-
sues there have been important achievements; on others a frustrating inertia
and even setbacks” (Bugge 1995, 53).
3. In a provocative conclusion, Hough states: “Thus the issue contradicts the
traditional belief that regimes are established in order to maximize the in-
terests of dominant actors and it appears that norms of behavior in interna-
tional politics, on which regimes develop, can have their source in morality
as much as in the priorities of the powerful.”
4. Statement by David Hofmann, director of the Climate Monitoring and Di-
agnostics Lab in Boulder, Colorado, as cited in Environmental News Net-
work, 7 October 1998: “According to the WMO/UNEP 1998 Assessment
of Ozone Depletion . . . the Antarctic ozone hole will remain severe for the
next 10 to 20 years. Following this period a slow healing is expected with

full recovery predicted to occur in the 2050 time frame. Climate change,
which is predicted to include a colder stratosphere, will affect the rate of re-
covery, Hofmann said.”
5. See also Landers (1997).
6. Excerpt from Center for International Earth Science Information Network
(CIESIN 1996): “Trends in CFCs have shown a nearly constant increase at
all monitoring locations. The vast majority of CFC production is in the
Northern Hemisphere but, due to their stability, CFCs become well-mixed
in the troposphere. CFC-11 and CFC-12 have been increasing globally at a
rate of approximately 3.7 to 4.0 percent per year from the late 1970s
through the late 1980s. . . . however, Elkins et al. (1993) indicate a slow-
down in the increase of CFC-11 and CFC-12. Global rates have shown de-
creasing growth from 11 1 parts per trillion per year (ppt /yr) during the
mid 1980s to 2.7 ppt /yr for CFC-11, and 19.5 2 ppt /yr in the mid 1980s
to 10.5 0.3 ppt /yr for CFC-12. These trends coincide with industry re-
ports of decreased production of these compounds. If such trends continue,
peak levels of chlorine in the stratosphere may be reached before the turn of
the century and a downturn may follow.”
7. Excerpt from CIESIN (1996): “The most widely used source of ozone data is
the TOMS data set. In an analysis of 13 years of daily ozone measurements
from 1979 to 1991, Stolarski et al. (1991) show statistically significant de-
creases in total column ozone at all latitudes outside the tropical regions in
‘Total Ozone Trends Deduced from Nimbus-7 TOMS Data.’ Greatest loss is
observed at high latitudes due to the unique conditions that lead to polar
ozone depletion. Losses in the Antarctic show a maximum downward trend
of approximately 3 percent per year during the spring months over the course
of TOMS observations. Ozone loss at mid-latitudes ranges from 0.2 – 0.8 per-
cent decrease per year. More recent TOMS data analysis by Gleason et al.
(1993) in ‘Record Low Ozone in 1992’ shows globally averaged ozone levels
reached all-time lows during 1992. Measurements from the National Aero-
nautic and Space Administration’s Stratospheric Aerosol and Gas Experiment
(SAGE) and ozone sonde launches have indicated that depletion has occurred
primarily at low stratospheric altitudes, between 17 and 25 km.”
8. Early reports of pollution by heavy metals and pesticides are countered by
the Black Sea Transboundary Diagnostic Analysis, which concludes that
“the concentration of . . . pesticides and PCBs . . . was found to be rather
low in most cases . . . [and] it is quite apparent that the Black Sea is not gen-
erally polluted by heavy metals” (Global Environment Facility 1997, 74).
9. Conclusions regarding the status of a species differ, and the 1997 BSEP An-
nual Report states that 33 species exist in the Black Sea, with 4 species pro-
viding 80.4 percent of the total catch.
10. Personal communication with Program Coordination Unit staff member,
28 August 1998. See also BSEP Annual Report. In late 2001 the European
Union announced that Black Sea countries will voluntarily implement the
EU’s water directive (Environmental News Network, 2 November 2001).
11. Their foci ranged from biodiversity at Batumi, Georgia, to integrated coastal
zone management in Russia. A similar program coordinating national ef-

forts has also been created for the Caspian Sea (Sievers 2001).
12. Specifically, article 67 of the Strategic Action Plan states, “By 1998, all Black
Sea coastal states will adopt criteria for environmental impact assessments
and environmental audits that will be compulsory for all public and private
projects. The coastal states will cooperate to harmonize these criteria by 1999
and where possible, to introduce strategic environmental assessments.”
13. Brunnee and Toope (1997, 47) conclude that “despite the numerous dispute
settlement provisions included in international environmental treaties, these
mechanisms are not widely employed. Dispute avoidance schemes linked to
river commissions, such as consultation mechanisms and prior notification
rules, have proven useful, but most third-party dispute settlement processes
remain unused.” The availability of domestic and international fora to par-
ties outside the jurisdiction where the environmental problem occurred is a
matter of international law addressed in a variety of ways. Under the
NAFTA regime described in a later section, individuals, NGOs, and others
may initiate a submission alleging that any of the three parties to the Envi-
ronmental Side Agreement has failed to enforce its environmental law effec-
tively. In the European Community, see Esty and Geradin (1997, 309) and
the Treaty Establishing the European Community, 7 February 1992, OJ
(c 224) 1 CMLR 573 (1992), article 169. In this regard a reported legal ac-
tion by scientists from the Black Sea nations against Austria and Germany
is illuminating. The action would challenge nitrogen discharges by the two
countries into the Danube, more than 200 tons a year, which is 35 percent
of the Black Sea total receipt. The discharges may violate the European
Union’s directives on wastewater and nitrogen and thereby embarrass na-
tions that take pride in pursuing strong environmental protection policies
within their own borders and in other international contexts. The decision
to pursue a legal action was reportedly made by a group of scientists and re-
ligious leaders. There are conflicting views of what actually was proposed
(Laurence D. Mee in UNDP et al. 1998).
14. The Black Sea Transboundary Diagnostic states that some of the remedial
actions required at the national and regional levels are “to establish . . . le-
gal basis for environmental NGOs’ participation in policy-making, imple-
mentation and assessment; . . . to adopt . . . legislation providing for the pos-
sibility to submit a law suit against a State official or State organ; to
adopt . . . rules obliging State officials to meet with the public on their re-
quest and to answer questions on environment; . . . to ensure . . . open ac-
cess to judicial organs, also in transboundary context.” Each of these reme-
dial actions was to have been done by 1997.
15. The difference between the export and import figures is approximately 8 per-
cent. The amounts reported for the previous year, 1997, were considerably
smaller, but that is probably mainly a reflection of the fewer countries re-
porting. The total waste exported was 1,890,000 metric tons, and total
waste imported was 2,171,000 metric tons. The 1998 export data do not ac-
count for the 7 percent of wastes remaining after disposal and recycling. The
import data have a gap of 13 percent; reported was 14 percent for disposal
and 73 percent for recycling. The Secretariat also reported a difference of

about 23 percent between the total quantities reported by exporting and im-
porting parties for disposal operations and an 18 percent difference for re-
cycling operations. Countries reporting varied in size, region, and economic
conditions and did not include the United States.
In 1998 the countries listed in the Secretariat’s Country Fact Sheets were
Albania, Algeria, Andorra, Antigua and Barbuda, Argentina, Australia,
Austria, Bahrain, Belgium, Benin, Bolivia, Brazil, Bulgaria, Burundi, Can-
ada, Chile, China, Colombia, Croatia, Cuba, Cyprus, Czech Republic, Den-
mark, El Salvador, Estonia, Finland, Gambia, Germany, Greece, Hungary,
Iceland, Indonesia, Iran, Ireland, Japan, Kuwait, Kyrgyzstan, Latvia, Leba-
non, Lithuania, Luxembourg, Malawi, Malaysia, Micronesia (Federated
States of), Moldova, Monaco, Mongolia, Morocco, Netherlands, New
Zealand, Nigeria, Norway, Oman, Panama, Poland, Portugal, Republic of
Korea, Romania, Russian Federation, Saint Lucia, Senegal, Seychelles, Slo-
vakia, Sri Lanka, Switzerland, Thailand, Turkey, Turkmenistan, Uganda,
United Kingdom, Uzbekistan, Viet Nam, and the former Yugoslav Republic
of Macedonia.
16. For a discussion of the effects of nonratification of Basel, see Bradford 1997.
17. Trade with Canada and Mexico accounts for approximately one third of all
U.S. exports and 27 percent of all U.S. imports (Simos and Triantis 1995).
18. See Ferretti 1992, especially regarding the imposition of U.S. risk-benefit
analysis onto Canadian health and safety regulations.
19. For example, regarding SEM-98-002, the CEC ruled as follows: “On
23 June 1998 the Secretariat determined not to review the Submission be-
cause it did not refer to environmental law as defined by the NAAEC. The
subject matter of the submission is a commercial forestry dispute under law
that, because of its primary purpose (managing the commercial exploitation
of natural resources), is expressly excluded from Article 14 review by the
definition of environmental law in Article 45(2)(b) of the Agreement.” In re-
sponse to a submission alleging that Canada had “jeopardized the future of
Canada’s east coast fisheries” (SEM-97-004), however, the CEC made the
following determination focusing on process: “Under the circumstances, the
submission does not appear to have raised the issue of non-enforcement in
a timely manner in light of the temporal requirement of Article 14(1) estab-
lished by the use of the words ‘is failing.’ The significant delay between the
time of the alleged failure to enforce and the filing of the submission con-
travenes the purpose and intent of Article 14(1) in light of the circumstances
described below” (CEC 2000).
20. According to the CEC, the submission (SEM-99-002) alleges that the Mi-
gratory Bird Treaty Act implements four international treaties, including
agreements with Canada and Mexico, aimed at protecting migratory birds,
and in section 703 prohibits any person from killing or “taking” migratory
birds “by any means or in any manner,” unless the U.S. Fish and Wildlife
Service issues a valid permit. The submission alleges that “the United States
deliberately refuses, however, to enforce this clear statutory prohibition as it
relates to loggers, logging companies, and logging contractors.” The CEC
did not rule that this submission is beyond its purview; rather in Decem-
ber 1999 it requested a response from the United States.
21. As of June 2002, a total of 34 citizen submissions on enforcement matters
had been filed with the CEC, and five factual records had been ordered.
Three factual records had already been completed and released: SEM-96-
001 “Cozumel,” SEM-97-001 “B.C. Aboriginal Fisheries,” and SEM-98-
007 “Metales y Derivados.” Submissions have varied considerably. As noted
in the text, “Cozumel” involved challenges to the environmental evaluation
process of a public harbor terminal for tourist cruises on the Island of
Cozumel in Quintana Roo, Mexico. In the fisheries submission the submit-
ters alleged that the Canadian government is failing to enforce a section of
the Fisheries Act and to utilize its powers pursuant to another law to ensure
the protection of fish and fish habitat in British Columbia’s rivers from on-
going and repeated environmental damage caused by hydroelectric dams.
22. In June 2000 the council approved a new role for the JPAC in reviewing is-
sues about the submissions process.
23. The conflict has arisen in a number of cases. One involved Canada’s attempt
to ban the cross-border movement of hazardous wastes, including PCBs.
Operating under the provisions of NAFTA chapter 11, a dispute resolution
panel indicated that Canada’s regulation treated a U.S. business differently
from Canadian investors. Another case involved the claim of a Canadian
business, Methanex Corportation, that the United States must pay almost
$1 billion because California planned to remove the toxic chemical MTBE
(methyl tertiary butyl ether) from gasoline to prevent water contamination.
A third involved U.S. attempts to regulate Mexican truck movement into the
United States in a broad manner rather than on a case-by-case basis. Alleg-
edly, the United States was limiting access for safety reasons. In yet another
conflict, an American firm recovered millions in damages against Mexico for
that country’s attempts to regulate a waste disposal facility. See the discus-
sion on trade and the environment in Chapter 5.
24. IPCC assesses scientific, technical, and socioeconomic information relevant
for the understanding of the risk of human-induced climate change. It does
not carry out new research or monitor climate-related data. It bases its as-
sessment on published and peer-reviewed scientific technical literature.
From “About IPCC,” http://www.ipcc.ch, accessed 21 July 1999.
25. Carbon emissions per capita per year were 5.3 metric tons in the United
States (the highest per capita carbon dioxide emission rate in the world),
1.0 metric ton in Argentina, and 0.1 metric ton in Paraguay. The average for
industrial nations was 3.1 metric tons (Herber and Raga 1995, quoting
World Resources Institute 1991).
26. The U.S. Energy Department has predicted that for the near future, U.S.
emissions of carbon dioxide and other heat-trapping greenhouse gases from
energy use will grow faster than previously expected (New York Times,
13 November 1997).
27. The distinction between trading and joint implementation arose after the
first COP vowed to ban trading as a means of meeting quantitative commit-
ments under the joint implementation provisions of the framework (Driesen
1998, fn. 181).
28. According to one estimate (International Energy Agency), this and related
decisions suggested that by the beginning of the millennium U.S. emissions
would be 16 percent higher than they were in 1990 (Driesen 1998).
29. From FCCC article 3.3: “The Parties should take precautionary measures to
anticipate, prevent, or minimize the causes of climate change and mitigate its
adverse effects. Where there are threats of serious or irreversible damage,
lack of full scientific certainty should not be used as a reason for postponing
such measures.”
30. The 39 annex 1 parties include Australia, Austria, Belgium, Bulgaria, Can-
ada, Croatia, Czech Republic, Denmark, Estonia, European Community,
Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan,
Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, Netherlands, New
Zealand, Norway, Poland, Portugal, Romania, Russian Federation, Slova-
kia, Slovenia, Spain, Sweden, Switzerland, Ukraine, United Kingdom of
Great Britain and Northern Ireland, and United States of America.
31. Article 4.2(g): “Any Party not included in Annex I may, in its instrument of
ratification, acceptance, approval or accession, or at any time thereafter,
notify the Depositary that it intends to be bound by subparagraphs (a) and
(b) above. The Depositary shall inform the other signatories and Parties of
any such notification.” See also article 12.4: “Developing country Parties
may, on a voluntary basis, propose projects for financing, including specific
technologies, materials, equipment, techniques or practices that would be
needed to implement such projects, along with, if possible, an estimate of all
incremental costs, of the reductions of emissions and increments of removals
of greenhouse gases, as well as an estimate of the consequent benefits.”
32. “Sinks” are locations or chemical configurations that result in effective re-
moval of pollution from biological, chemical, and physical processes. For
example, forests act as a sink for carbon dioxide.
33. Although the COP process replaced the INC, the INC continued to meet up
until the first COP (COP-1) to facilitate start-up issues of the FCCC (Bo-
dansky 1997b, sec 4.1.5).
34. The Kyoto Protocol specifies, among other requirements, that only projects
that provide “a reduction in emissions by sources, or an enhancement of re-
movals by sinks, that is additional to any that would otherwise occur” may
be used to meet annex 1 reduction commitments (article 6.1.b).
35. Countries that provide subsidies for energy-efficient products could be in
conflict with the Agreement on Subsidies and Countervailing Measures of
WTO rules, although there is an environmental protection exception. Most-
favored-nation treatment may be inconsistent with a multilateral regime al-
lowing trading only among parties to the Kyoto Protocol. The regime’s
compliance rules can, however, be promoted in ways that are technically
consistent with WTO principles. They can be designed so as to avoid being
considered a “service” and to not be “differentiated by their country of ori-
gin.” More satisfying and more compatible with progressive international
law is the conclusion that efforts to promote climate stabilization are exempt
from the WTO restrictions— even if they look like trade activities, which,
were they not so motivated, may confront challenges (Wiser 1999; Camp-
bell 2000b). Certainly this will require creation of some means of monitor-
ing CDM activity. More important, it will require some trust in nation-states
that are asserting this exemption.
36. Domestic policies considered in national law that are promising include ex-
pansion of federal weatherization assistance, location-efficient mortgages,
recovery of inefficient cars and appliances, expansion of emergency man-
agement agency activities, and federal provision of health insurance (Miller,
Sethi, and Wolff 2000).
Chapter 5. International Environmental Law:

Expectations and Recommendations
1. The Cartagena Protocol reads remarkably like the Basel Convention in as-
sessments of benefits and risks of geneticallly modified organisms. Among its
requirements is that importing countries would be given prior notification of
movements of genetically modified crops and that the importing nation’s
right to regulate and to bar the organism would be recognized. Some ex-
amples of the conflict over risk assessment make comical fodder. A number
of Greenpeace members, including a noble, were arrested in Norfolk, En-
gland, for using a mower to tear up a trial crop of maize. The crop was one
of a number of government-supported genetic modification trials in England
(International Environment Reporter, 4 August 1999, 660). Even the royal
family disagrees within itself about the role of genetic modification in Brit-
ish agriculture.
2. Richard S. Lindzen of MIT, who is the Alfred P. Sloan professor of meteo-
rology, argues, “We don’t know what determines upper level water vapor,”
a factor he says is “crucial and central to the predictions of future climate
change” (William Stevens, New York Times, 1 December 1997). Uncertain-
ties about interactions between and among natural systems, human systems,
and climate remain numerous (Revkin 2000a).
3. A logical possibility in some spheres is that science will discover that legal
intervention is too late. Although researchers offered the example to en-
courage improved resource management, in 2001 scientists reported that
overfishing historically was a major cause of ecological extinction of some
marine megafauna. Part of the cause was already triggered in the late ab-
original stage (Lazaroff 2001).
4. In 2000, Ford announced major efforts to make mileage improvements in its
sport utility vehicles. The fleet had been among the industry’s most
profitable, but Ford management concluded that greater company sales
could make up profit differences between SUVs and more efficient vehicles
and that the increased sales might evolve from a commitment to environ-
mental improvement (International Environment Reporter, 2 August 2000,
448). Critics consider these initiatives much too modest: the average fuel
economy of Ford SUVs was 16 miles per gallon at the time, and environ-
mental organizations such as the U.S. Public Interest Research Group were
advocating a standard of 45 miles per gallon (International Environment
Reporter, 2 August 2000, 612).
5. As of June 2002, only Alberta, Manitoba, and Quebec had signed the
NAAEC side agreement (personal communication with CEC, 25 June 2000).
6. What is regulatory is a matter of semantics. Some analysts include taxes;

others do not. Weiner (1999) lists technology-based requirements, harmo-
nized policies, pollution taxes, fixed performance targets, tradeable allow-
ances, as well as command and control, property rules, etc.
7. The numbers of these organizations are impressive. Massam and Earl-
Goulet (1997), limiting their scope to only fourteen Central and Eastern Eu-
ropean countries, analyzed 1,700 environmental nongovernmental organi-
zations. At about the same time (1994), the count of all intergovernmental
organizations was about 1,700 (Meyer et al. 1997). Meyer put the count of
nongovernmental organizations with liaison with the UNEP Environmental
Liaison Center at more than 10,000 by the mid nineties.
8. Which projects are of international environmental concern? At what point
is international notification required? How is a response to comments de-
fined across nation-states? Is information readily available in a national con-
text diplomatically sensitive in an international setting? How is “environ-
ment” to be defined? Are social elements of the environment to be included?
9. Designing means of coordinating IGO activities can itself be an organi-
zational challenge. In 1978 the United Nations attempted to promote com-
munication and information-sharing among its constituent environment-
focused organizations. It created the DOEM (Designated Officials on
Environmental Matters), but the results have done “little in the way of pri-
ority setting, program steering or implementation design” (Hempel 1996,
144). UNEP now is establishing the Division for Environmental Conven-
tions (UNEP 1999).
10. It has never been confirmed, but some of the problems that led to the pre-
cipitous resignation and firings in the CEC Secretariat in 1998 may have had
to do with information leaks or the creation of improper channels between
Secretariat members and their native states.
11. Translated by the author, from Corriere della Sera, 27 November 2000:
“Ma, nel frattempo, non e’ maturata una struttura decisionate che sia ca-
pace di governare la globalizzazione delle emergenze ambientali, di prendere
decisioni nell’interess di tutti.”
12. The purchase price of new vehicles is dependent on their fuel-efficiency by
means of a tax or subsidy. A system of tradable emissions credits allows car
manufacturers more flexibility in reaching emission standards, providing for
both trading and banking for future use (Koopman 1995, 56).
13. Private economic initiatives also can foster efforts at cooperation. The strate-
gic use of wealth by major foundations, such as Packard, and megarich in-
dividuals, such as Ted Turner and Bill Gates, can provide the means to im-
plement cooperation where law design has been accomplished but means are
scarce (in the Black Sea, for example).
14. Other specific asserted property rights need to be addressed. Some are quite
technical. Under the climate change regime, for example, countries such as
Russia (with economies in transition) have generated what is called hot air.
Hot air is the amount by which a Kyoto target exceeds its probable emis-
sions in the target year without climate change policies and mechanisms.
These countries had agreed to reduce their emissions by an assigned
amount, but many of them experienced considerable slowdowns in their
economies. International law can help determine whether hot air is now
property to which the transition nations are entitled. Furthermore, should
the notion of hot air be generalized to developing nations because they have
not been responsible for generating the climate change problems (Batruch
1999)? If hot air is property, how much should it be worth? What market
should set the value? It is, in any event, highly unrealistic to think that West-
ern nations would willingly create sufficient funds to funnel billions of dol-
lars into Russia for this commodity (Raustiala 2000b). At COP-6 an Indian
professor raised the issue of ownership of the atmosphere, which can be both
sink and source; he wondered who might get credit if the lower parts were
declared to be a sink for methane.
15. Choosing strategies that are driven by incentives does not obviate the need
for several other important steps in international law. Terminology in the
amendment to the Montreal Protocol illustrates that reliance on economic
incentives creates its own set of implementation challenges: “The parties
shall establish an Executive Committee to develop and monitor the imple-
mentation of specific operational policies, guidelines and administrative
arrangements, including the disbursement of resources, for the purpose of
achieving the objectives of the Multilateral Fund. The Executive Committee
shall discharge its tasks and responsibilities, specified in its terms of refer-
ence as agreed by the Parties, with the co-operation and assistance of the In-
ternational Bank for Reconstruction and Development (World Bank), the
United Nations Environmental Programme, the United Nations Develop-
ment Programme or other appropriate agencies depending on their respec-
tive areas of expertise.”
16. Customary international law binds states to cooperate in the protection of
the environment (Scovazzi and Treves 1992, 27) independent of economic
exchanges. Principle 24 of the Stockholm Declaration declares, “Interna-
tional matters concerning the protection and improvement of the environ-
ment should be handled in a cooperative spirit by all countries, big or small,
on an equal footing. Cooperation through multilateral or bilateral arrange-
ments or other appropriate means is essential to effectively control, prevent,
reduce and eliminate adverse environmental effects resulting from activities
conducted in all spheres, in such a way that due account is taken of the sov-
ereignty and interests of all States.” The obligation to cooperate manifests
itself as “a duty to act in good faith,” to meet the mutual interests of the
states directly concerned and the general interest of the international com-
munity. The North Sea Continental Shelf case, a judgment of the ICJ (Re-
ports 1969, 47), held that the parties are under an obligation not merely to
go through a formal process of negotiation but also to conduct themselves
so that the negotiations are meaningful (Scovazzi and Treves 1992, 27).
17. The EU has called for trade sanctions against countries that do not ratify the
POPs convention (Rollin 2000).
18. The U.S. Ethyl Corporation settled for $13 million a dispute with Canada
wherein the company claimed that a Canadian fuels additive act was a bla-
tant domestic protectionist measure. A NAFTA tribunal in November 2000
Note to Page 182 199
found Canada in breach of NAFTA’s investment protection provisions for

temporarily banning transboundary movement of wastes containing poly-
chlorinated biphenyls. The ruling found that the Canadian regulation
treated an American company differently from Canadian businesses (Inter-
national Environment Reporter, 22 November 2000, 901) Earlier that year
an arbitration panel ordered the Mexican government to pay almost $17
million to an American company. The firm’s plans to build a hazardous
waste facility in San Luis Potosí were blocked by Mexican officials’ conclu-
sion that the site was environmentally unsound (Brevetti and Nagel 2000).
There have been a handful of other demands for compensation under the
NAFTA regime (Deimann 1999).
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GENERAL INDEX
acronyms, xii–xiv Caribbean, convention to protect, 28

alternative dispute mechanisms, 55. CERES (Coalition for Environmen-
See also arbitration; dispute reso- tally Responsive Economies) prin-
lution mechanisms ciples, 70
animals, history of international certification, programs for reaching
efforts to protect, 14 –16 international environmental
African Development Bank, 38 goals, 80. See also environmental
Agenda 21, 24 management
Arab Bank for Economic Develop- Charter of the International Trade
ment, 38 Organization, 182
arbitration, as dispute resolution chemical industry, environmental
mechanism, 32 impacts of, 60 – 61
Asia, international environmental Chernobyl nuclear accident, 31
agreements of, 26 chlorofluorocarbons. See ozone-
Asia Development Bank, 38 depleting substances
atmospheric pollution, incidence of, 4 civil liability in international environ-
Autonomous Institutional Arrange- mental law, 167–168
ment, 37, 188n.7 civil society, function in international
environmental law, 171
Basel convention: case study of, 110 – climate change. See global climate
119; Decision 3/1 of, 114. See also change
Conventions Index command and control, strategies in
Bhopal, 59, 168 international environmental law,
biodiversity, loss of, 2 161–168
Black Sea: case study of, 102 –110; Commission on Sustainable Develop-
conventions to protect, 28; scien- ment, 87, 93, 144
tific findings on pollution of, 103– common but differentiated responsi-
105, 108, 191n.8; species loss in, bility, principle of, 30, 130, 131,
2. See also Conventions Index 135
Black Sea Environmental Programme common concern of humankind,
(BSEP), 28, 141, 191n.10. See also principle of, 130, 135
Black Sea compliance: command and control
British Petroleum, 64 and regulatory systems and, 161–
Bruntland Commission. See World 168; factors in achieving in inter-
Commission on Environment and national environmental law, 9;
Development innovations in achieving, 153–
154; as objective of international environmental impact assessment:

environmental law, 38 –56, 85; recommendation for in interna-
strategies for achieving, 18 tional environmental law, 172 –
conference of the parties, understand- 174; in regional initiatives, 28, 90
ing of, 37; See also individual environmental management: critical
conventions assessment of, 70 –71; European
courts: domestic in international law, Union initiatives in EMAS, 27, 67;
33; international with environ- expectations of, 142 –146, 151–
mental jurisdiction, 32 –33; role 153; as strategy for achieving
of in international environmental international environmental goals,
law, 32 –33 66 –72
criminal law, in international envi- epistemic communities, function in
ronmental law, 51, 165 –167 international environmental coop-
customary law, 29 –32; definition of, eration, 147
29; incidence of, 30; international equitable utilization of international
property law and, 185; limitations waters, principle of, 45 – 46
of, 31; principles considered to be, European Court of Justice. See Euro-
30, 198n.16 pean Union
European Economic Community. See
Declaration on the Human Environ- European Union
ment, 18 European Union: Court of Justice
desertification, 5 of, 26, 32; enforcement record
dispute resolution mechanisms, in within, 86; environmental direc-
international law, 192n.13 tives of, 27; history of environ-
dot com and international environmental law in, 16, 27; institutions
mental protection, 71–72 of, 26
Dow Chemical Company, 71 executive agreement, definition of, 23
dumping, efforts to control in oceans, expropriation and international envi-
85 ronmental law, 182
DuPont, 69, 96, 152
fisheries: attempts to save straddling
Earth Summit, 24 stocks of, 50, 86; environmental
ecolabeling, 63. See also environmen- degradation and loss of, 2
tal management flexibility devices, in global climate
ecotourism, 80. See also environmen- change regime, 133
tal management Food and Agriculture Organization
EIA. See environmental impact (FAO), 91
assessment Ford Motor Company, 61, 63, 64,
endangered species: effectiveness of 152, 196n.4
international efforts to protect, 85, forests, loss of, 3
89; loss of, 3, 24. See also Con- framework convention, definition
ventions Index, Convention on the of, 19
International Trade in Endangered
Species (CITES) Gates, Bill, 197n.13
enforcement in international environ- General Agreement on Tariffs and
mental law, 50 Trade (GATT): dispute resolution
General Index 239
processes under, 119; and trade indigenous people, role in interna-

sanctions, 182 tional environmental protection,
genetically modified organisms, 147 145
Georgia, Republic of: role in Black Inter-American Development Bank,
Sea Environmental Programme, 38
103 intergovernmental organizations
global climate change: Berlin Man- (IGOs), 38, 197n.9
date on, 132; case study of, 94 – Intergovernmental Panel on Climate
102; concept of hot air in regime Change (IPCC). See global climate
for, 197–198n.14; function of sci- change, case study of
ence in, 149; Geneva Declaration International Bank for Reconstruc-
on, 132; Intergovernmental Panel tion and Development. See World
on Climate Change (IPCC) of, Bank
128, 194n.24; Kyoto Protocol on, International Boundary and Water
132; Pew Center on, 136; regime Commission, 37
summary of, 135 –136; relation- International Chamber of Commerce,
ship to ozone depletion, 190 – 62
191n.4; Second Assessment Re- International Conference on Protec-
port on, 128, 132; sinks as factor tion of African Mammals, 14
in, 134; Third Assessment Report International Congress on the Protec-
on, 149 tion of Birds, 14
Global Environmental Facility (GEF), international cooperation, principle
24, 38, 103, 104, 105, 175 of, 30
Global Environment Outlook, 3, 5, International Council for Bird Preser-
62, 74, 75, 82, 128, 161, 178, vation, 15
187n.3 International Court of Justice, 30, 32,
good neighborliness principle, 30 39, 50, 84
governments, and international envi- International Criminal Court, 165 –
ronmental protection, 78 – 81 166, 188n.11
Great Lakes Basin Commission, 37 international environmental degrada-
greenhouse effect, 1. See also global tion, sources of, 57– 81
climate change international environmental law:
green management. See environmen- components of effective, 139 –140;
tal management dualist versus monist systems of,
Greenpeace, 101, 120, 169, 196n.1 34; economic strategies in, 178 –
180, 198n.15; function of judici-
The Hague Conference on Natural ary in, 32 –35; general assessment
Resources, 15 of successes and failures in, 82 –
hazardous waste: case study of con- 93; goals of, 82, 185 –186; history
trol of management of, 110 –119; of, 13–17; participation in, 156 –
definitions of, 118; illegal trans- 161; procedural characteristics of,
port of, 3; liability issues in han- 92; recommendations for, 154 –
dling of, 115 –116 186; sources of, 8; supranational
authorities in, 155; taxonomy of,
incentives, economic, in international 17–36
environmental law, 178 –180 International Joint Commission, 86
International Law Association, 45 Montreal Protocol: case study of,

International Law Commission, 166, 94 –102; Multilateral Fund of, 96,
188n.11 198n.15. See also Conventions
International Office for the Protection Index
of Nature, 15 Multilateral Environmental Agree-
International Organization for Stan- ment, 37, 174. See also treaties
dardization (ISO), 67; ISO 14000 multinational enterprise organiza-
series of, 67 tions, 11; as sources of environ-
international watercourses, treaties to mental challenges, 59 – 62; as
protect, 25 –26 sources of environmental solu-
International Whaling Commission, tions, 62 – 66
89, 91
NAFTA. See North American Free
jurisdiction: compulsory, 50; of the Trade Agreement
International Criminal Court, national enterprises, and interna-
166; as issue in international en- tional environmental protection,
vironmental law, 32; sources of, 72 –74
39 – 42 national laws, and international envi-
ronmental protection, 78 – 81
Khian Sea hazardous waste case, noncompliance procedures, 53, 54; in
111 Montreal Protocol, 99; strengths
Koko hazardous waste case, 111 and weaknesses of, 54 –55
Kuwait Action Area agreement, 92 nongovernmental organizations
Kuznet’s Curve, 74 –78, 190n.3 (NGOs), incidence of partici-
Kyoto Protocol. See global climate pation in international environ-
change; Conventions Index mental lawmaking, 24, 52, 139,
146
land degradation, incidence of, 3 norms: function in international envi-
Law of the Sea. See United Nations ronmental law, 10, 42 – 48, 171;
Convention on the Law of the Sea relationship to rules, 43
(UNCLOS) North American Agreement on Envi-
leadership principle, 131, 135 ronmental Cooperation (NAAEC):
liability, doctrine of states in inter- case study of, 119 –127; Commis-
national environmental law, 43 sion for Environmental Coopera-
tion (CEC) of, 193n.20; invest-
MARPOL, 85, 92 ment protection provisions and,
McDonald’s, 65, 70, 98 182 –183, 198 –199n.18; Joint
MEA. See Multilateral Environmen- Public Advisory Committee
tal Agreement (JPAC) of, 125, 172, 194n.22;
Mediterranean Action Plan, 86, 90, Secretariat of, 176, 197n.10; sig-
92 natories to, 196n.5; submission
Michael, Donald, ix, x process under, 125, 192n.13,
migratory birds, protection of, 15 193nn.19 –20, 194n.21
MNC. See multinational enterprise North American Free Trade Agree-
organizations ment, 25; chapter 11 provision of,
Montevideo Programme, 144 194n.23
General Index 241
North Atlantic Treaty Organization, regional organizations, role in inter-

25 national environmental law of, 51
nuclear: hostilities and international regional seas initiatives, 28, 89, 102.
environmental law, 4; treaties See also Conventions Index
related to, 19 regional treaties: in Asia, 26; in
Africa, 26; in South America, 26.
Organization for Security and Coop- See also Conventions Index
eration, 38 regulatory systems, as strategies in
Organization of Economic Coopera- international environmental law,
tion and Development, 38, 68 161–168
ozone agreements, 23–24 reprisals, 52
ozone-depleting substances, 23, 69; reservation. See treaties
background, 94 –95; black market Responsible Care, 63, 64
in, 102; international environmen- retorsion, 52
tal law response to problems with, Rio Declaration. See United Nations
95; trends, 5, 191n.6. See also Conference on Environment and
Montreal Protocol, case study of Development
Packwood-Magnuson Amendment, Salzburg Initiative, 158

34 sanctions in international environ-
“pacta sunt servanda” principle, 168 mental law, 50
participation: function in compliance Sax, Joseph, ix
with international environmental science, function of in international
law, 10; treaty to promote, 19 environmental law, 126, 139, 142,
Pelly Amendment, 34, 181 146 –151
persistent organic pollutants (POPS), Secretariats, design for international
19 environmental law, 174 –178
pesticides: environmental impacts of, soft law: definitions of, 17, 30, 35 –
3; international efforts to manage, 36; relationship to customary
91 law, 35
polluter-pays principle, 30 sovereignty, relationship of inter-
population size, 4 national environmental law
poverty, and international environ- to, 49
mental challenges, 74 –78 space, treaty banning nuclear tests
precautionary principle, 30, 36, 130, in, 17
131, 135, 195n.28 standing, in international environ-
Principles on World Forests, 44 mental cases, 33, 41, 52
property law, and international envi- Starbucks, 65
ronmental law, 179, 185 Stockholm conference. See United
Nations Conference on the
radioactive waste, 4 Human Environment
realpolitik, and international environ- Stockholm Declaration, 29, 143,
mental law, 172 198n.16
regime: definition of in international straddling stocks. See fisheries
environmental policy, 36; ratio- sustainability, general, 24, 83,
nale for, 190n.3 143
trade and the environment: general, national environmental conven-

157, 180 –184; NAFTA conflict tions, 13, 187n.1; role in inter-
provision of, 194n.23; phyto- national environmental law, 13,
sanitary provisions and, 183; 39, 40
WTO conflict provisions of, United States, General Accounting
195n.35 Office of, 85; participation in
trade-related aspects of intellectual international environmental agree-
property rights (TRIPS), 190n.2 ments, 118 –119; Senate Byrd-
trade-related environmental measures Hagel resolution of, 155
(TREMS), 91, 180 –183
treaties: list of, 20 –22; process of Valdez Society principles, 70
making and terminating, 23; reser-
vations in, 48, 97; types of, 19, war and the international environ-
25 –29. For specific treaties, see ment, 4, 166
Conventions Index waste. See dumping; hazardous waste
Turner, Ted, 197n.13 water degradation, incidence of, 3
whaling, history of international law
UNCLOS (United Nations Conven- on, 15
tion on the Law of the Sea): Court World Bank, 17, 38; environmental
of, 32; environment provisions of, impact considerations and, 173;
19. See also Conventions Index Prototype Carbon Fund of, 152;
UNDP (United Nations Development relationship to Montreal Protocol
Programme), 107 Multilateral Fund, 198n.15
UNEP (United Nations Environment World Charter of Nature, 35, 47
Programme), 18, 63, 102, 128 World Commission on Environment
United Nations: Conference on Envi- and Development, 144
ronment and Development, 24 – World Conservation Union, 16
25; Conference on the Human World Court. See International Court
Environment, 18, 27, 84; Desig- of Justice
nated Officials on Environmental World Meteorological Association,
Matters in, 197n.9; Division for 128
Environmental Conventions of, World Trade Organization (WTO),
197n.9; International Tropical 49, 76, 195n.35
Timber Organization of, 80; reso-
lution on information about inter- Yellowstone to Yukon initiative, 148
AUTHOR INDEX
Abrams, David, 110 Carr, Craig, 30

Adele, Andronico, 43 Carroll, John, 86
Akehurst, Michael, 52 Champion, David, 73
Allen, Mark, 112 Charnovitz, Steve, 77, 123, 124, 125,
Allison, Graham, 159 171, 184
Aritake, Toshio, 64 Chayes, Abram, 8, 29, 54, 55, 159
Arrow, K., 76 Chayes, Antonia, 8, 29, 54, 55, 159
Cho, Byung-Sun, xi, 34, 165
Ballard, Robert, 104 Chomo, Grace, 122
Barsoom, Peter, 8, 54, 162, 189n.18 Churchill, Robin, 37, 188n.7
Batruch, Christine, 198n.14 Clapp, Jennifer, 101
Beach, Heather, 46 Clinard, Marshall, 73
Beaulieu, André, 123 Corcelle, Guy, 86
Benedick, Richard, 97 Crane, Andrew, 70
Benvenisti, Eyal, 45, 185 Cusack, M., 116
Bergesen, Helge, 87, 93 Cuzze, Lorre, 115, 117
Berle, Peter, 65
Berman, Mark, 144 D’Amato, Anthony, 30
Biermann, Frank, 75, 84, 88 D’Anieri, Paul, 8, 37, 38
Blackman, Allen, 73 Danish, Kyle, 8
Blatter, Joachim, 8 Dauvergne, Peter, 87
Bodansky, Daniel, 75, 195n.33 Davies, Peter, 89
Botnen, Trond, 87, 93 Demko, George, 9
Boyle, Alan, 31, 85, 89, 92 DeSombre, Elizabeth, xi, 68, 98, 99,
Bradford, Mark, 193n.16 101
Braninga, Susan, 122 DiMento, Joseph, 158
Brunnee, Jutta, 47, 192n.13 Doughman, Pamela, xi, 145
Bugeda, Beatriz, 122 Downs, George, 8, 42, 54, 55, 162,
Bugge, Hans, 190n.2 189n.18
Burke, W. T., 88 Dreimann, 184
Butler, Octavia, vi Driesen, David, 194n.27, 195n.28
Drumbl, Mark, 169, 180
Caldwell, Lynton, 90, 144 Duncan, Pamela, 124
Cameron, James, 43, 170 Dunoff, Jeffrey, 48
Campbell, Laura, 195n.35 Duruigbo, Emeka, 92
Earl-Goulet, Robert, 197n.7 Jacoby, Henry, 127

Elliott, E. D., 150 Jaff, Daniel, 116
Esty, Daniel, 164, 179, 192n.13 Jennings, Robert, 168
Etzioni, Amitai, 42 Johnson, Kirk, 80
Johnson, Pierre, 123
Farha, Alfred, 64 Johnson, Stanley, 86
Feldman, David, 160 Jurgielewicz, Lynne, 8, 43
Ferrantino, Grace, 122
Ferretti, Janine, 193.n18 Kaplan, Robert, 93
Fiederlein, Suzanne, 8 Kelly, J. Patrick, 31, 85
Flores, Marcello, 155 Keohane, Robert, 8, 12, 158
Fowler, Robert, 59, 61, 62 Kingsbury, Benedict, 8, 84
Freestone, David, 31, 85, 92 Kissinger, Henry, 90
French, Hillary, 8, 90, 91 Knox, John, 173
Friedman, Thomas, 64 Koh, Harold, 8, 35, 159, 189
Fuentes, Ximena, 46 Koopman, Gert, 197n.12
Kopp, Mike, 81
Gaja, Giorgio, 83 Korten, David, 60
Garcia-Johnson, Ronnie, 63, 69 Koskenniemi, Marti, 8, 44, 51, 52,
Gehring, Thomas, 8, 158 55, 146, 168
Geis, Gilbert, xi Kraul, Chris, 77, 184
Geradin, Damien, 192n.13 Krueger, Jonathan, 112, 116, 117
Gesovic, Branislav, 175, 176 Krut, Riva, 70
Gleckman, Harris, 70 Kutting, Gabriella, 86
Golub, Jonathan, 62
Grout, Deborah, 116, 117 Lavelle, Marianne, 124
Gudofsky, Jason, 112, 115 Lazaroff, Cat, 196n.3
Levesque, Suzanne, 148, 172
Haas, Ernst, 8, 109 Levy, Marc, 12
Haas, Peter, 8, 12, 158 Lipschutz, Ronnie, xi, 8, 70, 81,
Hackett, D., 115, 116 100, 160
Handl, Gunther, 53, 54, 55, 84, 86, Litfin, Karen, 94, 95, 148
87, 157 Lyster, Simon, 14, 189n.16
Hardin, Garrett, 179
Hauselmann, Pierre, 70 Makuch, Zen, 181, 182
Hempel, Lamont, 197n.9 Mann, Howard, 145
Herber, Bernard, 194n.27 Massam, Bryan, 197n.7
Hogenboom, Barbara, 124 Matthew, Richard, xi
Holdgate, Martin, 8 Maxwell, James, 63
Humphreys, David, 87, 88 McAdams, Richard, 42, 43
Hunter, David, 97, 100, 112, 115, McFarland, Mack, 100
116, 147, 173 Mee, Laurence, 108, 109, 171
Hunter, Roszell, 8 Merton, Robert, 155
Hurrell, Andrew, 8, 84 Meyer, John, 84, 151, 197n.7
Michael, Donald, ix, x, 177
Ingram, Helen, 8 Miles, E., 189n.18
Miller, Alan, 100
Jacobson, Harold, 92 Miller, K., 138, 196n.36
Author Index 245
Mitchell, Ronald, 92, 158, 189n.18 Rocke, David, 54, 162, 189n.18
Moomaw, Willian, 101 Roderick, P., 43, 170
Moore, Molly, 105 Roht-Arriaza, Naomi, 70
Mueller, John, 42 Rollin, Sara, 181, 198n.17
Mulenex, David, 8 Rothwell, Donald, 93
Mumma, Albert, xi, 8 Rowland, F. Sherwood, 94
Mumme, Stephen, 121, 124 Rubin, Alfred, 62
Rummel-Bulska, Iwona, 112, 117
Nader, Ralph, 60
Nanda, Ved, 163 Salzman, James, 97, 100, 112, 115,
Nelkin, Dorothy, 148 116, 147, 173
Nespor, Stefano, ix, 84, 151 Sampson, Martin, 104, 106, 107,
Nickler, Patrick, 87 109
Nolkaemper, A., 93 Sand, Peter, 8
Nordquist, J. 61 Sands, Philippe, 8, 26, 30, 41, 42, 49,
51, 86, 89, 145, 148, 168, 188n.8
Oesterle, Dale, 184 Schmalensee, Richard, 127
Okowa, Phoebe, 88, 92, 174 Schmitt-Roschmann, Verena, 79
Oldson, William, 108 Schneider, William, 115, 116
O’Reilly, James, 115, 117 Schram, Stokke, 89,
Ostrom, Elinor, 8 Scott, Gary, 30
Oxman, Bernard, 90 Scovazzi, Tullio, xi, 49, 50, 59, 89,
Oye, Kenneth, 63 198n.16
Ozturk, E., 107 Sethi, Gautam, 138, 196n.36
Shabecoff, Philip, 8, 43, 57, 90, 143,
Pallemaerts, Marc, 83 144, 150, 163, 164, 170, 172
Palmer, G., 164 Shelton, Dinah, 93
Papasavva, Stella, 101 Siegal, Charles, 43
Pauwelyn, Joost, 30, 184 Sievers, Eric, 153, 171, 192n.11
Pearce, Frank, 60 Simos, Evangelos, 193n.17
Pearson, Charles, 61 Sims, Holly, 97, 100
Perez, Fran, 179 Sirola, Paula, 145
Perlez, Jane, 50 Sjoberg, Helen, 175
Petsonk, C., 99 Skolnikoff, Eugene, 91, 189n.18
Philbrick, Nathaniel, 77, 78 Smith, Turner, 8
Plant, Jon, 65 Spengler, Katherine, 76
Porter, Michael, 66 Sprouse, Terry, 121
Posner, Eric, 42 Steinberg, Richard, 183
Pressman, Jeffrey, 153 Stenzel, Paulette, 70
Prinn, Ronald, 127 Stevens, William, 178, 196n.2
Stewart, Richard, 148
Raga, Jose, 194n.25 Stone, Christopher, xi, 8, 91, 124,
Ramakrishna, Kilaparti, xi, 9 172
Raustiala, Kal, 8, 91, 171, 189n.18, Strong, Maurice, 150, 169
198n.14 Susskind, Larry, 8, 84, 89, 158, 177,
Rawls, John, 42 179
Redgwell, Catherine, 86, 89 Switzer, Jacqueline, 8
Revkin, Andrew, 150, 160, 196n.2 Szasz, Paul, 8, 43, 161
Tagliabue, John, 77 Waugh, Theodore, 117

Tanik, O., 107 Weiner, Jonathan, 197n.6
Taylor, Prue, xi, 174 Weinstein, Henry, 117
Tickell, Crispin, 163 Weiss, Edith, 8, 18, 85, 92, 149,
Timoshenko, Alexander, 144 155, 178
Tolba, Mostafa, 97, 112, 117, 168 Werksman, Jacob, 12, 39, 42, 43,
Tombs, Steve, 60 170
Toope, Stephen, 47, 192n.13 Wettestad, Jorgen, 8
Tracey, Patrick, 98 Wildavsky, Aaron, 153
Treves, Tullio, 49, 50, 59, 89, Wilder, Margaret, 126
198n.16 Winham, Gilbert, 120
Triantis, John, 193n.17 Wirth, David, 31, 56
Tromans, Stephan, 86 Wirth, John, 65
Wiser, Glen, 195n.35
Ulfstein, Geir, 37, 188n.7 Wolf, Gary, 138, 196n.36
Underhal, Arild, 37 Woodard, Colin, 103
Upadhye, Shasbank, 29, 31
Yeager, Peter, 73
Van der Mensbrugghe, 35, 36 Yoshida, O., 97, 99, 100, 101
Van Heijnsbergen, P., 92 Young, Oran, 8, 9, 38, 53
Victor, David, 91, 189n.18
Vicuna, Francisco Orrego, 8 Zaelke, Durwood, 97, 100, 112, 115,
Vidas, Davor, 89 116, 147, 173
Wallace, Charles, 111

CONVENTIONS INDEX
Aarhus Convention, 19, 174 Convention for the Preservation of

Air Quality Agreement between the Fur Seals in the North Pacific, 165
United States and Canada, 88 Convention on Biological Diversity,
Antarctic Treaty, 16, 89, 173 24, 181
Convention on Early Notification of
Barcelona Convention on Protection a Nuclear Accident, 88
of the Mediterranean Sea against Convention on Environmental
Pollution, 28, 105, 179 Impact Assessment in a Trans-
Basel Convention on the Control of boundary Context, 173
Transboundary Movements of Convention on Long-Range Trans-
Hazardous Wastes and Their Dis- boundary Air Pollution, 25
posal, 110, 165, 172 Convention on the International
Biodiversity Convention, 144 Trade in Endangered Species
Black Sea Fishing Convention, 16 (CITES), 92, 181
Boundary Waters Treaty, 15 Convention on the Physical Protec-
Brussels Convention on Jurisdiction tion of Nuclear Materials, 165
and Enforcement of Judgments, Convention on the Prohibition of
42 Military or Any Other Hostile Use
Bucharest Convention on Protection of Environmental Modification
of the Black Sea against Pollution, Techniques, 40, 179
28 Convention on the Protection and
Use of Transboundary Water-
Caribbean Regional Seas Convention, courses and International
28 Lakes, 25
Cartagena Convention for the Protec- Convention on the Protection of the
tion and Development of the Environment through Criminal
Marine Environment of the Wider Law, 165
Caribbean Region, 179, 196n.1 Convention Respecting Fisheries,
Cartagena Protocol on Biosafety to Boundary and the Restoration of
the Convention on Biological Slaves between the United States
Diversity, 19 and the United Kingdom, 14
Comprehensive Agreement for the
Zambezi River Basin, 26 Declaration of Brasilia, 26
Convention for the Conservation of
Shrimp between the United States ECE Convention on environmental
and Cuba, 16 impact assessment, 88
Framework Convention on Climate 49, 53, 89, 92, 96, 149, 176, 178,
Change, 24, 85, 130 –131, 181 179, 181, 198n.15
International Agreement for the Reg- Nordic Environmental Protection

ulation of Whaling, 15 Convention, 42
International Convention for the Pol- North American Agreement on Envi-
lution of the Sea by Oil, 16 ronmental Cooperation, 25
International Convention on the Reg-
ulation of Whaling, 16, 181 Statement of Principles on Forests, 24
International Convention Relating to Stockholm Convention on Persistent
Intervention on the High Seas in Organic Pollutants, 19
Cases of Oil Pollution, 17 Straddling Fish Stocks and Highly
International Tropical Timber Agree- Migratory Fish Stock Agreement,
ment, 85 50, 86
Jeddah Regional Convention on Treaty Banning Nuclear Weapon

the Protection of the Red Sea and Tests in the Atmosphere, in Outer
the Gulf of Aden Environment, Space, and Under Water, 17
167 Treaty of Rome, 21, 188n.7
Treaty of the European Union,
Kuwait Regional Convention, 28 188n.7
Kyoto Protocol to the Framework
Convention on Climate Change, United Nations Convention on the
132, 136, 195n.35, 197n.14 Law of the Sea, 19, 40, 49, 50, 88,
89, 167
Land Mines Treaty, 170
London Dumping Convention, 92 Vienna Convention for Protection of
the Ozone Layer, 23, 40, 95, 168
Mastricht Treaty, 27 Vienna Convention on the Law of
Montreal Protocol on Substances Treaties, 22 –23, 37, 167–168,
That Deplete the Ozone Layer, 23, 189n.20
CASE INDEX
Corfu Channel, 29 shrimp-turtles, 182
fur seals arbitration, 30 tuna cases, 30, 119 –120, 157; South-
ern Bluefin Tuna (Australia and
Gabcikovo-Nagymaros, 90 New Zealand v. Japan), 189n.14
Handelskwekerj GJ Bier v. Mimes de United Paperworkers Int’l. Union v.

Potasses d’Alsace, 189n.15 Int’l. Paper Co., 190n.1
Japan Whaling, 34, 35, 188n.12
North Sea Continental Shelf,

198n.16

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THE GLOBAL ENVIRONMENT AND INTERNATIONAL LAW

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Library of Congress Cataloging-in-Publication Data

1. Worldwide Environmental Quality and the Role of Law 1

2. Law Trying to Save the Earth: Strategies, Institutions,

3. Law’s Targets: Whose Behavior Needs to Be Influenced? 57

4. An Accounting: Successes and Failures in International

5. International Environmental Law: Expectations and

ronment a subject of worldwide interest. Donald Michael helped policy-

BSEP Black Sea Environmental Programme

NAFTA North American Free Trade Agreement

This chapter focuses on the need for international attention to global

TYPES OF GLOBAL ENVIRONMENTAL CHALLENGE

now face extinction, or decimation of the rich resources, including deep-

forest loss and degradation, biodiversity loss and fragmentation of habi-

toward legal intervention. The alternative is to accept the position of sys-

THE LEGAL RESPONSE: MAJOR THEMES

interdependency and sovereignty, the role of voluntary commitments

THE FUNCTION OF LAW AND ITS RELATIONSHIP

and other institutions aimed at inﬂuencing individual and collective be-

Flexibility in achieving implementation, inclusiveness of parties, the

THE APPROACH OF THE BOOK

the pollution created by multinational corporations, governments, or-

My aim is to add to the analysis of the efﬁcacy of international envi-

capacity and commitment of institutions public and private. The second

This chapter addresses law as an instrument of international environ-

of endangered species, of migratory birds, of landscapes, and of other

explosives, were outlawed. The convention also encouraged the estab-

whales.6 Then in 1946 the International Convention on the Regulation

The Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer

INTERNATIONAL ENVIRONMENTAL LAW: A TAXONOMY

From Stockholm to Rio de Janeiro and the Next Generation

TABLE 2.1. Treaties of the Modern Era of International

Convention on Wetlands of International Importance Especially as Waterfowl

Convention on the Transboundary Effects of Industrial Accidents (Helsinki,

1 For a more complete list see Sands et al. 1994.

To any list of modern treaties addressing evolution of a sector of in-

in fact two Vienna Conventions on Treaties, one among states (1980)

The Ozone Regime

Tokyo can contribute to dangers of skin cancer in Chile” (Shabecoff

tion of international environmental law and coordination of functions

Regional, Multilateral, and Bilateral Agreements

nate contradictions with the precautionary principle, the polluter-pays

As a follow-up to the Stockholm Conference in October 1972, the

semination of environmental information to the public. The directive

Aleutian Basin pollock stock. The Agreement on the Conservation of

the Rio Declaration regarding state sovereignty over all of a nation’s

Some theorists are adamant about the limitations of customary law.

European institutions. Otherwise, it sits in chambers and deliberates pri-

monist or dualist legal systems (Cho 2000-2001). In a monist uniﬁed le-

the 1988 discontinuance, would not diminish the effectiveness of the

The Concept of Soft Law

beneﬁts outweigh potential damage to nature, and where potential ad-

INSTITUTIONAL DEVELOPMENT AS INTERNATIONAL LAW:

area” (Krusner 1983, as described in D’Anieri 1995). Some scholars add

Regional organizations, although not explicitly lawmaking institutions,

COMPLIANCE, IMPLEMENTATION, ENFORCEMENT: