The Duty to Cooperate in International Environmental Law: Constraining State Discretion Through Due Respect

Abstract

While the duty to cooperate has been central to the protection of the global environment, it has received much less attention than the (due diligence) obligation to prevent harm to the environment. This paper traces the development of the duty to cooperate in international environmental law in both its general and specific form. At the heart of the duty to cooperate is its procedural approach to mediating competing state claims by requiring states to take the interests of other states and the global community seriously. The duty to cooperate is “other regarding” - it requires states to consider the impacts from the perspective of the affected state and to seek a resolution based on good faith and due respect. What unifies the duty to cooperate across these forms is that it structures State discretion by requiring that States exercise their discretion in ways that are responsive to ‘community interests’. The essence of this article is to explore when and how States are constrained in their freedom of action by having to consider the interests of other States.

Keywords: International Environmental Law, Duty to Cooperate, Procedural Obligations, Discretion