Document Type
Article
Publication Date
1992
Publication Information
35 German Y.B. Int'l L. 293 (1992).
Abstract
New international environmental law is emerging at an unprecedented pace. In addition to the hundreds of treaties already adopted and the many more in the midst of negotiation, a new and important rule of customary international law is developing which obligates States to take steps to prevent environmental harm before it occurs. But can this newly emerging law be enforced? Many have the impression that international environmental law cannot be enforced or is rarely enforced. While it is true that the enforcement picture is not overly impressive, it is not true that enforcement is impossible or cannot be improved. This article describes the emerging law of the environment and assesses three approaches to enforcing it. At least one of these approaches - enforcement through negotiation may hold the key to improving enforcement.
All three approaches to enforcing international environmental law differ fundamentally from domestic law enforcement. International law lacks the usual domestic enforcement institutions. It must, therefore, rely more on voluntary compliance than enforcement. Consistent with this fact international legal rules are developed through consent-based mechanisms and, as a result, most States comply with most rules, having agreed to them, most of the time, thereby reducing the need for enforcement. Nevertheless, enforcement will at times be necessary and is available in international law. Lacking institutions to do so, States themselves are permitted to coerce compliance with legal obligations through individual or collective counter-measures. It is argued here, however, that the simple use of counter-measures, without more, is only one approach to enforcing environmental obligations. While States may ultimately have to rely on counter-measures, combining litigation with counter-measures or negotiation with counter-measures may prove more successful. It is further argued, however, that only negotiation combined with counter-measures will generally succeed in enforcing the new obligation to take preventive measures to protect the environment.
Evidence of the prevention obligation and other new international environmental law is presented in Part I; approaches to enforcement are discussed in Part II.
Recommended Citation
Mary Ellen O'Connell,
Enforcing the New International Law of the Environment,
35 German Y.B. Int'l L. 293 (1992)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1854
Comments
Abstract from introduction.