Distinguishing from or integrating into - what is the relationship between international environmental law and public international law?

Author:Gray, Kevin R.
Position:International Environmental Law at the Beginning of the 21st Century - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

I would like to begin my comments by addressing the theme regarding the "distinct" nature of IEL. The idea of being distinct stands in contrast to the integration of IEL into general public international law. Is there a tension between having distinct characteristics and integrating fully into public international law that might lend more credibility to the field held among more traditionally minded international lawyers? Moreover, being a distinct area may be a disservice for an area of law with an overarching objective of integrating its subject matter (environment) into economic decision making. My question would be whether such distinctiveness, as mentioned by the previous speakers, undermines the credibility of international environmental law as perceived by public international lawyers by merely differentiating itself.

As any good student of public international law would begin their analysis, I will briefly comment on the sources of IEL. This serves as a backdrop inferring a public international law perspective which arguably distorts the analysis of IEL.

A number of the customary international law principles in IEL consist of a series of principles that are amorphous and difficult to operationalize and enforce, to say nothing about the challenge in demonstrating the existence of opinio juris. Yet such principles yield real outcomes that show their legitimacy. For instance, the principle of common-but-differentiated responsibility, of which there is no treaty-based hard-law obligation, has led to significant transfers of technology and finances to developing countries. The notion of sustainable development has engendered novel regulatory approaches such as the use of market based instruments. Professor Brunne also has remarked how the concept of common concern has engendered multilateral action and unique institutional structures to support such action. In some way, MEAs with their sophisticated decision-making machinery offer a fluid response to the shared problems among states.

The proliferation of MEAs has enriched the corpus of IEL. Moreover, the Agreements have developed innovative regimes and sophisticated responses to environmental problems. But has this led to the disaggregation of the commonalities in MEAs, reduced the potential for MEA synergies, and contributed to the ensuing difficulty of international environmental law specialists to remain experts in their field?

In looking at the opinion of jurists, since the...

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