How to Approach an International Environmental Law Question

• Author: Charles E. Di Leva
• Pages: 23-45

CHAPTER 3

How to Approach an International

Environmental Law Question

CHARLES E. DI LEVA

This chapter is intended to explain some key steps a practitioner should fol-

low when addressing an international environmental law (IEL) question.

First and foremost is the need to determine the relevant jurisdictions in

which legal obligations might arise or policy considerations may be relevant.

This exercise alone may be complex, as exemplified by the U.S. Supreme

Court’s decision in Kiobel v. Royal Dutch Petroleum, which addresses the

applicability of laws to multinational corporations with headquarters out-

side the United States.1 Second, once the relevant jurisdictions are identified,

it is necessary to delve into the character of the international law obligations

at issue and how said jurisdictions view those obligations. Third, the breadth

of international law encompasses obligations that might fall outside a tradi-

tional domestic realm, and therefore should include obligations flowing from

institutions themselves, such as from internal compliance obligations, or

from soft-law obligations, or beyond, such as reputational issues that arise in

the perceived court of public opinion. All three steps are discussed below.

I. The Context for Approaching an IEL Question

The approach to questions concerning IEL will depend on a multiplicity of

factors. Broad categories of questions might be divided into those pertaining

to public versus private law matters; treaty versus statute; or binding versus

nonbinding hortatory measures; as well as categories of information reason-

ably available to the practitioner such as legal and regulatory measures

available in the ordinary course of business as opposed to those that imme-

diately launch one into a world of foreign law firms, consultants, and

translators.

At the outset, this vast body of law stretches across all nation-states.

Indeed, it is generally assumed that by now all sovereign states and their

territories have some body of environmental law as part of their legal

framework, albeit with significant differences in approach, completeness,

and stringency. Moreover, as is clear in this chapter and other parts of this

23

volume, the environmental and corporate social responsibility movements

have led numerous global and regional public and private institutions—be

they financial, industrial, or resource-based—to develop their own environ-

mental standards and codes, and to develop accountability systems to

address noncompliance with those provisions. In addition, governments

have taken seriously the negotiation of a wide range of so-called soft instru-

ments, that is, those instruments that are considered nonbinding under inter-

national law but that retain important political and moral commitments.

The massive growth in environmental law at the international level

began with the U.N. Conference on the Human Environment in 1972 (Stock-

holm Conference), but particularly accelerated in the days leading up to the

U.N. Conference on Environment and Development in 1992 (Rio Confer-

ence).2 This growth has been particularly dramatic in developing countries

and emerging economies. Some of this growth in developing countries has

been informed and aided by the international and bilateral development

community, such as the United Nations Environment Programme (UNEP)

and international development aid and financial institutions, such as the

World Bank and the Asian Development Bank. The U.S. Agency for Interna-

tional Development and the European Union (EU) have also been heavily

involved. However, it would be an inaccuracy to indicate that the growth in

environmental law at the international level is a result of donor country

impetus alone—developing countries have been taking a major oar to move

this field forward on their own as witnessed in many of the chapters in this

volume.

Given this remarkable growth, what is IEL? At the inception of this field,

IEL encompassed the literally hundreds of multilateral environmental agree-

ments (MEAs) that are binding on the member states that have ratified them.

Such treaties represent a classic example of “hard law”—that is, binding as a

matter of international law on the actors that ratify them. As IEL began its

significant growth, some commentators distinguished “hard law” and “soft

law” for international legal instruments.3 As noted below, that distinction

still has utility.

However, in recent years, it has been understood that IEL should be

approached through a wider lens.4 This wider focus has emerged as lawyers

facing environmental issues that go beyond their borders frequently find

legal or quasi-legal implications emanating not only from treaties, but also

from a wide array of legal instruments. Moreover, another recent phenome-

non is that international and regional organizations have been consistently

promulgating environmental or environment-related standards, codes, and

practices to which their members have agreed to be bound. Such agreements

lend IEL status to these measures, including those emanating from organiza-

tions with mandates as widely different as the International Maritime Orga-

nization and Codex Alimentarius and those emanating from regional trade

agreements such as the North American Free Trade Agreement (NAFTA),

especially in its side agreement on Environmental Cooperation, and the Cen-

tral American Free Trade Agreement (CAFTA). Both NAFTA and CAFTA

24 INTERNATIONAL ENVIRONMENTAL LAW