New Ways to Make International Environmental Law
86 American Journal of International Law 259
26 Pages Posted: 12 Dec 2012 Last revised: 23 Feb 2015
Date Written: 1992
This article suggests new ways to make international law for the environment. The existing methods are slow, cumbersome, expensive, uncoordinated and uncertain. Something better must be found if the environmental challenges the world faces are to be dealt with successfully. Unless we devise a better way to make international law for the environment, future progress is likely to be piecemeal, fitful, unsystematic and even random. The justification for taking bold steps now rests on analysis of three factors: the formidable nature of the environmental issues that must be dealt with; the condition of international organization relating to the environment, particularly the United Nations system; and the methods currently used to make international environmental law.
A myriad of issues concern the health of our planet and the capacity to sustain life upon it. But the United Nations lacks any coherent institutional mechanism for dealing effectively with environmental issues. Strengthening its capacity and structure should be high on the list of priorities for the 1992 Conference on Environment and Development. The only way to cure the problem is to create a proper international environmental agency within the United Nations system that has real power and authority. Other environmental components within the UN system should also be restructured and reorganized.
While the number of instruments which have developed international law for the environment is impressive, and some of them will have slowed down degradation, it cannot be assumed that they have led to an improvement in the overall situation. A strong argument can be made that, during the time of development, the worldwide environmental situation became worse and is deteriorating further. There is not effective legal framework to halt this; nor do many international agreements necessarily mean many ratifications.
The paper considers a range of legal options: customary international law, the Stockholm Declaration, the International Law Commission, and soft law, and finds all to be deficient in some way. It evaluates treaty law and the rule of unanimous consent, recognising that developments in treaty law have led to instances in which unanimous consent is not required and nations who do not agree with a particular norm nevertheless will be bound by it.
It then turns to consider the necessity for a new institution, raising that the weakness of the international machinery has not escaped comment. It submits that there are basically four policy options in the institutional area. First, things could be left as they are. Second, UNEP could be strengthened and given formal responsibilities. Third, the secretariat approach of the Vienna Convention could be embroidered upon and developed so that a series of secretariats operate for separate environmental issues. The fourth broad option is to create a new international institution.
Keywords: international law, international environmental law, UNEP, United Nations
JEL Classification: K32, K33
Suggested Citation: Suggested Citation