IEL is a relatively young field. In 1945, when the United Nations was created, environmental issues did not even rate a mention in the Charter. Indeed, as recently as 1964, when Wolfgang Friedman wrote The Changing Structure of International Law, he did not include environmental protection among his "new fields of international law"--even though international environmental law is a paradigmatic case of the new law of international cooperation that he argued was emerging.
But in its comparatively short history, IEL has emerged into virtually an industry. It is taught in more than one hundred law schools across the country and is the subject of four casebooks and several specialty journals. Therefore, this is perhaps a good time to step back and take a broader look at the field.
The question I want to address is whether one can now say that IEL represents a distinct field. Of course, it is a distinct field in the sense that it addresses a distinct set of problems and has developed a wide body of primary rules in response. However, is it a distinct field in the stronger sense of having its own characteristic methodologies and techniques?
A number of scholars still answer this question in the negative. In their view, IEL represents nothing more than the application of international law to environmental problems. Furthermore, to the extent that IEL has developed distinctive features, some have argued that this is a bad thing because it undermines the fundamental unity and coherence of international law, thereby contributing to the fragmentation of international law into different subfields.
In my talk today, I want to take issue with both of these arguments. First, in my view, IEL does not represent merely the application of international law to environmental issues, but instead has its own distinctive features. Second, the emergence of IEL as a distinct field is not a bad thing but is instead an entirely appropriate response to the distinctive character of international environmental problems.
But first, a caveat. I will be painting with a very broad brush. I will be taking a view, as it were, from 30,000 feet. The picture on the ground is obviously more complicated and murky. Nevertheless, I think taking this broad view, although oversimplistic, helps throw into sharper relief the ways in which international environmental law is similar to, and different from, other areas of international law.
Now, in saying that IEL has become a distinct field, the first question to consider is, distinct from what? Discussions of the fragmentation of international law all presuppose...