Collapse: can international law protect the earth's natural resources?

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 1:00 p.m., Thursday, March 29, by its moderator, John Setear of the University of Virginia School of Law, who introduced the panelists: Edith Brown Weiss of the University of Georgetown School of Law; David Freestone of the World Bank; and Lakshman Guruswamy of the University of Colorado School of Law. *


By John K. Setear ([dagger])

George Carlin says that optimists see the glass as half full, pessimists see the glass as half empty, and he sees the glass as too big.

Some people are optimistic about international environmental agreements. Many people think that the Montreal Protocol has done a wonderful job, for example. Within that optimistic camp, there are even divisions of optimism and pessimism, with some double-optimists believing that the Montreal Protocol represents a triumph over a global problem of daunting scientific complexity, while the less optimistic temper their enthusiasm for the general applicability of the ozone example by pointing to the paucity of actors involved and the ready availability of economically viable substitutes for the relevant pollutants. David Freestone is ah optimist about the Kyoto Protocol because he believes that it has promoted cost internalization among European executives in connection with a European trading system that, while not directly mandated by the Protocol, clearly has its genesis in that agreement.

Some people are pessimistic about international environmental agreements. Pessimists might point to the fact that the Kyoto Protocol does not bind the United States, the largest current producer of greenhouse gases. The Kyoto Protocol does not even attempt to impose binding reductions upon China and India, who are sure to become colossal producers of greenhouse gases in the not-too-distant future. And many believe that the targets of the Kyoto Protocol are much too modest. Similarly, the Biodiversity Protocol has not generated much enthusiasm. Membership is broad, but commitments are shallow.

If you listen to enough of these evaluations, however, then you begin to realize that a good deal of them depend on how large the evaluator is making his or her glass.

Take the Montreal Protocol on Substances That Deplete the Ozone Layer. If you define the problem as "current production of ozone-depleting substances," then you have a relatively small glass that is almost entirely full, since the current production of such substances approaches zero. If you enlarge the glass to the size of a problem like "protection of the ozone layer," then the glass is partly full, since human activities did a good deal of damage to the ozone layer for a significant period of time and, because of the persistence of ozone-depleting substances in the stratosphere, that harm has not yet ceased to have current effects. If you enlarge the glass to a very large size such as, "the elimination of atmospheric pollutants," then the agreements on ozone-depleting substances can at most represent only a few drops in a glass that also includes, most prominently, greenhouse gases but also sulfur and nitrous oxides.

One might draw a similar example from a biodiversity treaty extant long before the Biodiversity Protocol: the International Convention for the Regulation of Whaling. If you define the problem as "an end to the whaling of Earth's largest creatures," then the agreement has done an excellent job. The agreement affects a general ban on commercial whaling, and compliance with that ban in terms of the blue whale, the fin whale, and the other large whales is generally quite high. If you define the problem as "an end to whaling," the glass is not quite as full. Japan and Norway, through different mechanisms, continue to take a thousand or so minke whales each year. The minke is the smallest and most plentiful whale, but it is a whale nonetheless. If you define the problem as "the preservation of biodiversity," then of course an agreement limited to the largest marine mammals can hardly by itself fill the relevant glass.

Our own panelists represent the same spectrum of glass sizes. When David Freestone pronounces some satisfaction with the Kyoto Protocol, it is largely because he focuses on the intersection of Europe, trading mechanisms, and business actors. When Lakshman Guruswamy pronounces some dissatisfaction with the Kyoto Protocol, it is largely because he believes that we must change the fundamental basis of our civilization from an oil-based economy to an economy based on renewable resources. One focuses on the equivalent of a shot glass, the other on the equivalent of the town water tower.

The same analysis might well apply to the overall question of this panel: Can international law protect the Earth's natural resources? In one sense, the flawless protection of all the globe's natural resources is much too large a glass for international law, or indeed for any single area of human endeavor, to fill. Neither international lawyers nor politicians nor engineers nor CEOs nor ordinary individuals can by themselves protect the environment. If we take the question to involve a smaller glass, however, then international law can certainly do its part. International environmental agreements are sure to be a part of the twenty-first century's approach to environmental policy, and thus international lawyers will surely have a role to play.


By David Freestone **

The conference organizers have posed the panel some interesting questions that I will address in my comments. What is the most important environmental challenge facing the world today? A simple answer would be: climate change, climate change, and, for emphasis, climate change. However, in my mind the biggest environmental challenge facing the world is not actually climate change per se, but managing responsible and sustainable growth in a world already committed to climate change. By 2050 the world will be very different. World income is estimated to grow from $35 trillion today to $135 trillion, the population from 6 to 9 billion, and with these growth rates, 40% of world income would be in low and middle income countries--double their 20% share today. More than 65% would live in urban areas, most of them in housing and serviced by infrastructure yet to be designed. (1)

At the same time the Intergovernmental Panel on Climate Change (IPCC) in its fourth report tells us that with current emissions of greenhouse gases (GHGs), we are already committed, by 2050, to a 1[degrees]C rise in average temperatures, much more severe weather events, and a half meter rise in sea levels, which will permanently displace at least 200 million people, and may result in the extinction of 15-40% of species. The recently released Stern Review, commissioned by the U.K. Chancellor of the Exchequer, warns us that the costs of dealing with a world in which the concentrations of carbon have gone above 550 parts per million (ppm) could be as high as 20% of global income annually. Action within the next 10-15 years to keep carbon concentrations under that critical level could cost 1% of global product--i.e., some $3.5 trillion a year. This is still a great deal of money but a highly cost effective investment, for, as the Stern Review points out, there is an "extremely high price for delay."

What is the role of international law, and international environmental law in particular, in such a scenario? Any effective action by the international community must be within the context of collective decisionmaking, and it is perhaps instructive to look at the ways in which international treaty regimes have been more or less effective in catalyzing such actions.

I am not alone in thinking that the most effective international environmental regime to date must be the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer. The consumption of ozone-depleting substances (ODS) has declined from over a million tons per year to less that 10,000 and is predicted to be eliminated by 2010. The ozone hole, first identified by British scientists in the Antarctic in 1985, has stopped getting larger and is estimated to close by 2050, thereby saving 20 million cases of skin cancer and 130 million eye cataracts. As a legal instrument, why has it been so successful?

Perhaps it is easier to address a problem when the cause of the problem is clear and the action necessary also relatively clear. However, this has not always been a recipe for success in international agreements. So although the majority of the ODS were identified, and technology was developing alternatives, there was also strong political will. It is also worth recalling...

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