INTERNATIONAL INTERNATIONAL ENVIRON. LAWENVIRON. LAWINTRODUCTIONINTRODUCTION

Prof David K. LinnanClass One - LAW A545

03/29/04

INT’L ENVIRON LAWWHAT IS INT’L LAW?

WHAT ARE DIFFERENT APPROACHES OF PUBLIC INTERNATIONAL LAW?

WHAT IS INTERNATIONAL ENVIRONMENTAL LAW?

PUBLIC INT’L LAWNATURE OF SYSTEM, IS IT ABOUT STATES VERSUS

INDIVIDUAL RIGHTS?

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?

PUBLIC INT’L LAWDiffering 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?)

PUBLIC INT’L LAWDiffering 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 ofindependent 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)

PUBLIC INT’L LAWDiffering 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)

PUBLIC INT’L LAWDiffering 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)

PUBLIC INT’L LAWDiffering 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)

PUBLIC INT’L LAWWhat is sovereignty, and what are its

pluses and minuses conceptually?

Self-preservation and preemptive war post-9/11

Nature of global environmental probs

PUBLIC INT’L LAWCommunalism 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?

PUBLIC INT’L LAWWhere do development, distributional

justice and path dependency fit ?

UN Charter & economic prosperity’s failure from a developing country perspective

INT’L ENVIRON LAWINT'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

INT’L ENVIRON LAWPROBLEM 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?

BASIC INT’L LAW CONCEPTS

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 MECHANISM3. DECENTRALIZED, MEANING ALSO

TRAD. NO COURTS/SHERIFF4. CAN YOU GET TO PARTS PER MILLION

LEVEL, AND HOW?

SOURCES OF LAWCLASSIC 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

SOURCES OF LAWTreaty, 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

SOURCES OF LAWCustomary Law (opinion juris & state

practice)

How long to form, how specific in its dictates?

SOURCES OF LAWGeneral Principles of Law

Substantive vs. procedure problems

Problem of hidden preference over customary law, but problem rather with customary law

SOURCES OF LAWTwo sometimes alternate categories attempted,

wistful thinking unless you are a multilateral

Soft law & general principles claims (eg, what amounts to best practice), eghttp://www4.worldbank.org/legal/legen/legen_iel.html

International environmental law on model of human rights law (probably general principles), eg http://www.ciel.org/Publications/olpaper3.html

SOURCES OF LAWWhat are the PROs & CONs of law formation

for int’l environmental law under1) Treaty2) Customary Law3) General Principles4) Other

Eg, what are the nature of underlying problems and how do they interact with options?

BASIC CONCEPTS LAW CREATION

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?

BASIC CONCEPTS LAW CREATION

WHO OWNS WHAT & HOW?WHO ALLOCATES OWNERSHIP?WHO EXERCISES CONTROL OVER

RESOURCES/REGULATION & HOW?

WHAT IS THE DIFFERENCE BETWEEN POLICY & LAW FOR THESE PURPOSES?