Environmental “Law”Environmental “Law”and Globalizationand Globalization

Environmental Law 2Environmental Law 2

Spring 2007Spring 2007

How does the “international” layer How does the “international” layer affect other layers of environmental affect other layers of environmental

law and regulation?law and regulation?

Multinational and binational Multinational and binational agreementsagreements

Federal lawFederal law State lawState law Municipal lawMunicipal law Collaborative “law”Collaborative “law” Private ordering (e.g., forest Private ordering (e.g., forest

certification)certification)

Do the higher levels--Do the higher levels--

Control the layers below (supremacy Control the layers below (supremacy clause model)?clause model)?

Influence the layers below? (“New Influence the layers below? (“New York and California” model)York and California” model)

Get ignored by the layers below?Get ignored by the layers below?

YES!

Hard Law/Soft LawHard Law/Soft Law

““Hard law”=real Hard law”=real lawlaw• Binding norms of Binding norms of

conductconduct• Applied in litigation Applied in litigation

or dispute-or dispute-resolution resolution mechanismmechanism

• Backed by coercive Backed by coercive power of the statepower of the state

““Soft law” = ?Soft law” = ?• Creates norms, but Creates norms, but

often vagueoften vague• Either no Either no

mechanism to mechanism to enforce, or enforce, or enforcement left enforcement left unclear, or unclear, or enforcement only enforcement only though state-to-though state-to-state negotiationstate negotiation

Some forms of international law:Some forms of international law:

TreatiesTreaties Conventions, protocols, executive Conventions, protocols, executive

agreementsagreements Customary international lawCustomary international law DeclarationsDeclarations

General approaches to the General approaches to the relationship between domestic and relationship between domestic and

international lawinternational law MONIST—MONIST—

International law is International law is part of the part of the domestic law of the domestic law of the countrycountry

Most common in Most common in civil law countriescivil law countries

DUALIST—DUALIST—International law International law not part of the not part of the domestic law of the domestic law of the country unless it is country unless it is brought in by brought in by implementing implementing legislationlegislation

Most frequent in Most frequent in common-law common-law countriescountries

Ways in which international Ways in which international agreements can find their way into agreements can find their way into

domestic lawdomestic law

Create explicit right of Create explicit right of private action private action

Implied right of private Implied right of private actionaction

Incorporation by Incorporation by implementing implementing legislationlegislation

Give content to broad Give content to broad norms (“reas. prudent norms (“reas. prudent person” and person” and precautionary precautionary principle)principle)

Binding norm on Binding norm on agenciesagencies

Constrain agency Constrain agency discretiondiscretion• Via implementing Via implementing

legislationlegislation• By virtue of national By virtue of national

commitment to the commitment to the principleprinciple

Justify agency actionJustify agency action

If an international norm isn’t “hard” If an international norm isn’t “hard” enough to do any of the foregoing,enough to do any of the foregoing,

is it worth a damn?is it worth a damn?