International Environmental Law

by

Jutta Brunnée

• LAST REVIEWED: 22 April 2013
• LAST MODIFIED: 22 April 2013
• DOI: 10.1093/obo/9780199796953-0052

Introduction

International environmental law encompasses the legal norms and processes that address transboundary, regional, or global environmental issues. International environmental concerns generally result from human impacts on the natural environment, such as pollution or resource use related to production or consumption processes. Environmental problems pose at least five distinctive challenges for international law. First, because they typically result from private activities (Nonstate Actors) rather than from government action, international environmental law must either engage these actors directly or, as has been the predominant approach to date, prompt states to regulate private actors under their jurisdictions. Second, because international environmental problems, or scientific understanding of them, tend to evolve rapidly and sometimes unexpectedly, international environmental law often operates under conditions of uncertainty and must be adaptable to changing needs or knowledge. Third, international environmental law must deal with multiple interconnections. International environmental problems, by definition, not only transcend jurisdictional boundaries, but they also implicate social, political, and economic processes, as has come to be expressed through the concept of sustainable development (Sustainable Development). Moreover, because many international environmental problems are intertwined with one another, action or inaction on one issue implicates one or more other issues. Fourth, many international environmental issues, and virtually all global environmental concerns, require cooperation between industrialized and developing countries (History and Evolution), raising complex and highly charged questions of equity and capacity (Common but Differentiated Responsibilities). Finally, international environmental problems frequently require not only the balancing of potentially competing contemporary interests and priorities, but also have significant implications for future generations of humanity (Intergenerational Equity). The evolution of international environmental law has been shaped by these closely intertwined challenges (History and Evolution). Customary or soft law principles (Key Principles) have emerged that reflect the various dimensions sketched above. Perhaps in recognition of the fact that environmental problem-solving requires cooperation rather than confrontation, the primary role of these principles has been to help frame the negotiation and operation of international environmental agreements (Multilateral Environmental Agreements) and the activities of international institutions (International Environmental Institutions). Indeed, the bulk of international environmental lawmaking, implementation, and compliance control (Compliance Mechanisms) occurs today under the auspices of the hundreds of environmental agreements that are now in existence. International courts and tribunals (Courts and Tribunals) have played only a relatively small role in the application of customary or treaty law to environmental issues in the course of dispute settlement. Similarly, the law of state responsibility has found only limited application in the environmental context and states have preferred to negotiate civil liability regimes to address specific risks, such as those posed by oil pollution or nuclear energy production (Responsibility and Liability). This article focuses on the major structural elements and key characteristics of international environmental law rather than on developments in the various substantive issue areas.

General Overviews

Many general overviews of international environmental law take the form of textbooks (Textbooks). However, a number of monographs are available that survey or analyze the key developments in, and the main features of, the field, including Bodansky 2010, DiMento 2003, Kerbrat and Maljean-Dubois 2011, Kiss and Shelton 2007, and Louka 2006. In addition, two major edited collections, Bodansky, et al. 2007 and Fitzmaurice, et al. 2010, blend theoretical analysis and subject matter review.

• Bodansky, Daniel. The Art and Craft of International Environmental Law. Cambridge, MA: Harvard University Press, 2010.

  Provides an overview of the key traits of international environmental law, the main actors, and the main challenges of negotiating, implementing, and enforcing international environmental norms and regimes. Written by a leading scholar with extensive involvement in negotiation practice. Offers an accessible blend of practical perspective and theoretical insight.

• Bodansky, Daniel, Jutta Brunnée, and Ellen Hey, eds. The Oxford Handbook of International Environmental Law. Oxford: Oxford University Press, 2007.

  The biggest names in international environmental law and related fields provide concise, stand-alone overviews on key topics in international environmental law as well as “bigger picture” analysis. Many chapters offer a broader policy and theoretical perspective, written by authors who draw on insights from law, political science, economics, and philosophy.

• DiMento, Joseph F. The Global Environment and International Law. Austin: University of Texas Press, 2003.

  Although somewhat dated, this volume still provides an accessible and thoughtful introduction to the legal tools available to address international environmental problems, the main actors, and the main challenges.

• Fitzmaurice, Malgosia, David Ong, and Panos Merkouris, eds. Research Handbook on International Environmental Law. Cheltenham, UK: Edward Elgar, 2010.

  The chapters, many authored by leading experts, provide helpful introductions to the international environmental law system, its key theories and concepts, the main substantive legal principles, human rights to environment, responsibility and liability issues, dispute settlement and compliance, biodiversity, and selected specific environmental protection regimes.

• Kerbrat, Yann, and Sandrine Maljean-Dubois. The Transformation of International Environmental Law. Oxford: Pedone and Hart, 2011.

  This volume edited by two younger French scholars traces the conceptual and institutional transformations of international law in the environmental context. Takes up key preoccupations in contemporary international law scholarship, such as fragmentation, constitution making, universalism and differentiation, norm conflicts, hard versus soft law, implementation, and enforcement.

• Kiss, Alexandre Charles, and Dinah Shelton. Guide to International Environmental Law. 2d ed. Boston: Martinus Nijhoff, 2007.

  DOI: 10.1163/ej.9781571053442.1-329

  Two leading scholars offer a concise introduction to the main sources, concepts, and substantive areas in the field as well as an overview on linkages to other areas of international law. The book will be most useful for those looking for brief overviews rather than in-depth analysis.

• Louka, Elli. International Environmental Law: Fairness, Effectiveness, and World Order. New York: Cambridge University Press, 2006.

  DOI: 10.1017/CBO9780511618109

  Provides a thorough and pragmatic introduction to the main concepts, approaches, and debates in the field with a focus on political and power dynamics. Overviews of key areas (marine environment, water resources, fisheries resources, biodiversity, air pollution, trade and environment, hazardous and radioactive waste) are illustrated through case studies.