INT’L ENVIRON.
LAW
BACKGROUNDER
Prof David K. Linnan
USC LAW # 666
Unit One
ADMIN I
COURSE PAGE AT
http://www.lfip.org/laws666spring05/index.htm
READING ASSIGNMENTS POSTED ON COURSE
MATERIALS AT
http://www.lfip.org/laws666spring05/cm666-05.htm
HARD COPIES ON LIBRARY RESERVES TOO, DO
YOU WANT CD-ROMS? NOTE WATCHING
STREAMING VIDEOS TOO (IN ADVANCE OF
CLASS)
ADMIN II
YOU MUST SIGN UP FOR LISTSERV
intlenviro (INSTRUCTIONS AT CLASS
ADMINISTRATION LINK ON COURSE
PAGE), SEE
http://www.lfip.org/laws666spring05/ad
min.htm
CLASS PROBLEMS & ACCESSMENT
ECONOMIC ACTIVITY
WHAT DOES THE BELOW MAP TELL YOU
ABOUT COUNTRIES AND ECONOMIC
ACTIVITY AS AN UNDERLYING REALITY
OF INT’L ENVIRONMENTAL LAW?
http://www.lfip.org/laws666spring05/index
.htm
WHAT IS DR. MAHATIR’S VIEW OF
INT’L ENVIRONMENTAL LAW?
WHY?
WHAT INT’L LAW?
WHAT IS INT’L LAW?
WHAT ARE DIFFERENT APPROACHES
OF PUBLIC INTERNATIONAL LAW?
WHAT IS INTERNATIONAL
ENVIRONMENTAL LAW?
INT’L ENVIRON. LAW?
WHAT IS INT’L ENVIRONMENTAL LAW?
1. A fixed body of rules, like NEPA writ
large?
2. A question about how to make law,
recognizing that we have problems?
3. What are the interests at stake, etc.
according to Dr. Mahatir? Other
reading?
PIL ISSUES
NATURE OF SYSTEM, IS IT ABOUT STATES
VERSUS INDIVIDUAL RIGHTS? “SPECIES-ISM”
WHO OR WHAT CAN MAKE A CLAIM, AND WHERE?
IS THERE A PERMANENT JUDICIAL BODY WITH
MANDATORY JURISDICTION AKA WORLD
COURT?
IS THERE A CENTRAL ENFORCEMENT AUTHORITY
AKA SHERIFF?
WHO “MAKES” THE LAW AKA LEGISLATURE?
PIL CONCEPTS I
Differing approaches floating around past
100 years (like styles of constitutional law)
1. Traditional law between nations (state
centered, hidden sovereignty ideas)
2. Human rights law post WW II
(individual rights ideas, but also issues
social & economic versus political &
civil rights, natural law reborn?)
PIL CONCEPTS II
Differing approaches floating around past 100 years
(like styles of constitutional law) Cont’d
3.
Increasing emphasis on multilateral
organizations (League of Nations 1919,
UN
Charter 1945, structural issues of
independent organizational life versus
member political control and
obligations/rights distinctions)
4.
Changing int’l scene introducing different
groups of states and views (e.g., Socialist
states, ex-colonies)
PIL CONCEPTS III
Differing approaches floating around past 100 years
(like styles of constitutional law) Cont’d
5.
Increasing legalization of numerous areas like
international economic law (EU, NAFTA,
GATT/WTO, IMF, World Bank) or
environmental law, “third generation” human
rights law in terms
of youth, gender,
sustainable development, etc.
6.
Increasing judicialisation attempted (e.g., ICC
and Rome Treaty, ad hoc tribunals for Former
Yugoslavia, Rwanda)
PIL CONCEPTS IV
Differing approaches floating around past
100 years (like styles of constitutional law)
Cont’d
7. Media & pressure groups (NGOs)
increasingly try to affect int’l behavior
often through the domestic political
process
8. Int’l relations cross-over into politics
(e.g., hegemon-speak, battles of
civilizations, preemptive war doctrines)
PIL CONCEPTS V
Differing approaches floating around
past 100 years (like styles of
constitutional law) Cont’d
9. Intellectual attempts at recasting
into self-enforcing structure (e.g.,
Draft Code on State Responsibility)
SOVEREIGNTY
What is sovereignty, and what are its
pluses and minuses conceptually?
Self-preservation and preemptive
war post-9/11
Nature of global environmental
probs
COMMUNALISM
Communalism and economic
interdependence are currently trendy
concepts, what about them?
Community of nations, etc. as alleged
European view post 9/11)?
What is Bush Administration view re
Kyoto & global warming, and why?
RICH & POOR
Where do development, distributional
justice and path dependency fit ?
UN Charter & economic prosperity’s
failure from a developing country
perspective
ENVIRONMENTAL LAW
INT'L VERSUS NAT'L LAW, CONCEPT
INT'L ENVIRONMENTAL LAW, NOT
TRADITIONAL
COMMAND
&
CONTROL ENVIRONMENTAL LAW
SINCE THERE IS NO CENTRAL
INTERNATIONAL LAW SOVEREIGN,
LAW AS “VOLUNTARY” IN THEORY
LAW VS POLICY
PROBLEM
IS
TRADITIONALLY
LAW
CREATION SINCE INTERNATIONAL LAW
ALLOWS FOR NO RULES ABSENT
PERMITTED FORMATION (SO RECENT
CONCERNS MOSTLY ABOUT HOW TO
CREAT THE LAW RATHER THAN EXACT
SUBSTANCE-WITNESS
GLOBAL
WARMING CONTROVERSY)
IS INT’L LAW “LAW” OR “POLICY” AND
DOES IT MATTER?
PARTS PER MILL?
NATURE OF INT'L LEGAL SYSTEM
1. WHO ARE PLAYERS (SUBJECTS OF
INT'L LAW/STATES TRAD./NGOs
IMPORTANTLY FOR INT’L
ENVIRONMENTAL LAW)
2. SOVEREIGNTY & LACK OF
ENFORCEMENT MECHANISM
3. DECENTRALIZED, MEANING ALSO
TRAD. NO COURTS/SHERIFF
4. CAN YOU GET TO PARTS PER
MILLION LEVEL, AND HOW?
SOURCES OF LAW
CLASSIC INT'L LAW SOURCES
1. TREATIES (AGREEMENTS WITH
VS. WITHOUT LEGAL FORCE)
2. CUSTOMARY LAW (BEHAVIOR
UNDER LEGAL COMPULSION &
OPINIO JURIS)
3. GENERAL PRINCIPLES OF LAW
4. BEST (ACADEMIC) WRITINGS
TREATY
Treaty, express agreement written or oral
[int’l law treaty different from full US constitutional
treaty with Senate supermajority vote]
Bilateral versus multilateral, now organic
constitutional making own rules (problem
negotiating up front versus longer term
governance in technical areas
Issues now of treaties leading to legal effects on
non-members
CUSTOMARY LAW
Customary Law (opinion juris & state
practice)
How long to form, how specific in its
dictates?
GENERAL PRINCIPLES
General Principles of Law
Substantive vs. procedure problems
Problem of hidden preference over
customary law, but problem rather
with customary law
WISTFUL THINKING
Two sometimes alternate categories attempted,
wistful thinking unless you are a multilateral
Soft law & general principles claims (eg, what
amounts to best practice), e.g.
http://www4.worldbank.org/legal/legen/legen_iel.h
tml
International environmental law on model of
human rights law (probably general principles),
e.g.
http://www.ciel.org/Publications/olpaper3.html
SOURCES PRO & CON
What are the PROs & CONs of law
formation for int’l environmental law
under
1) Treaty
2) Customary Law
3) General Principles
4) Other
E.g., what are the nature of underlying
problems and how do they interact
with options?
TREATY?
WHAT IS THE BEST WAY TO MAKE
LAW IN A DETAILED TECHNICAL
AREA WITH UNCERTAINTY ON
SCIENCE & ECONOMICS?
What are the default rules, why?
Probably treaty, but why?
PRACTICALLY
WHO OWNS WHAT & HOW?
WHO ALLOCATES OWNERSHIP?
WHO EXERCISES CONTROL OVER
RESOURCES/REGULATION
&
HOW?
WHAT IS THE DIFFERENCE BETWEEN
POLICY & LAW FOR THESE
PURPOSES?
ASSIGNMENT
FOR NEXT WEEK, TO UNDERSTAND
SOVEREIGNTY & INT’L ENVIRONMENTAL
LAW DO UNIT 19 AT
http://www.lfip.org/laws783fall04/cm783fall0
4.htm
WATCH THE STREAMING VIDEO UNIT THEN
DO THE ROTUNDA PROBLEM FOR CLASS
DISCUSSION (NOTE SAME AS THIS
COURSE UNIT TWO, EXCEPT STREAMING
MATERIAL TO WATCH IN ADVANCE)