The Emergence of Global Environmental Law (El Surgimiento Del Derecho Ambiental Global)
DESARROLLO SUSTENTABLE: GOVERNANZA Y DERECHO: ACTAS DE LAS CURTAS JORNADES DE DERECHO AMBIENTAL, V. Duran, S. Montenegro & P. Moraga, eds., 2008
16 Pages Posted: 25 Sep 2008
Date Written: 2008
Legal systems across the globe are responding to environmental concerns in surprising new ways. As nations upgrade their environmental standards, some are transplanting law and regulatory policy innovations derived from the experience of other countries, including nations with very different legal and cultural traditions. New national, regional, and international initiatives have been undertaken both by governments and private organizations. Greater cross-border collaboration between government officials, nongovernmental organizations, multinational corporations and other entities is shaping environmental policy in ways that blur traditional private/public land domestic/international distinctions. The result has been the emergence of a kind of "global environmental law" - law that is neither purely domestic nor purely international in its origins and scope.
This paper will begin by describing the concept of "global law," why it is different from domestic and international law, and the areas of law in which it is developing. Environmental law is one of several important fields in which forms of "global law" are emerging as legal systems cope with the consequences of globalization in areas including securities regulation, intellectual property, trade and competition policy. After describing examples of this phenomenon, the paper will examine how the forces of globalization are driving the emergence of "global law" in the environmental law field.
These forces include the dramatic growth of global trade, which has created powerful incentives for harmonization of legal standards, pushing divergent legal systems towards greater convergence. Even where legal standards diverge sharply, multinational corporations find it increasingly difficult to defend the use of less protective practices in the developing world when these come under the spotlight of the international media and organizations raising environmental justice concerns. Companies now realize that their activities anywhere in the world quickly can become a focus of global protests by environmental and human rights activists.
Improvements in the global transfer of information also have made it easier for countries to borrow legal and regulatory policy innovations from each other. Elements of national environmental law have been "uploaded" into international agreements and international legal norms have in turn been "downloaded" into national and regional approaches to environmental law. While this is not a new phenomenon, it is now occurring on an unprecedented scale. As countries learn from the regulatory policy experience of others, convergence is occurring around a few principal approaches to environmental regulation that are being widely adopted throughout the world. Convergence of environmental standards is most pronounced with respect to product regulation, but countries upgrading their pollution control standards also are freely borrowing regulatory strategies from other jurisdictions.
The growth in worldwide concern for the environment also has spawned several quasi-private/quasi-public initiatives to promote more sustainable development policies. Global environmental law has evolved away from a system controlled entirely by state actors to one in which public interest groups and multinational corporations now play a significant role in the articulation and implementation of global norms. They do so through a variety of regional and global entities, some created by treaties. Enlightened corporations also are undertaking purely private initiatives that also are playing a more important role in shaping global environmental policy. Improvements in global communication and transportation have contributed to the rise of international networks of environmental activists. This trend will continue to increase pressure on multinational corporations operating in the developing world to improve their performance even in countries where they are not legally required to do so.
The paper concludes by discussing the future implications of the emergence of global environmental law. It predicts that globalization will not result in the complete harmonization of global environmental standards, but rather the emergence of a few principal approaches to regulation employed throughout the world with local adaptations. The environmental lawyers and policymakers of the future will need to be educated in the new discipline of global environmental law by studying these approaches and the experience of the countries that employ them. Thus, they will need to be exposed not only to domestic law, but also to the principal approaches to environmental regulation that are emerging around the world. As globalization blurs traditional public/private and domestic/international distinctions in environmental law, it is time to approach the subject instead as the field of "global environmental law."
Keywords: environment law, global law, environment
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