Environmental Protection, Free Trade, and Democracy

• DOI: 10.1177/0002716205281493
• Published date: 01 January 2006
• Date: 01 January 2006
• Subject Matter: Articles

10.1177/0002716205281493
THE ANNALS OF THE AMERICAN ACADEMY
ENVIRONMENTAL PROTECTION, FREE TRADE, AND DEMOCRACY
January
603
This article explores the links between international
environmental law and the law of free trade. Democratic
countries have tended to favor both environmental law
and free trade more so than other countries. The more
interesting question is whether the converse is true, that
is, do environmental law and free trade aid democracy
and the development of the rule of law? This article
addresses that question.
Keywords: environmental law; international law; free
trade; democracy; rule of law
Environmental
Protection,
Free Trade,
We know that environmentalism played a
key role in the revolutionary changes in
Central Europe. (Bowman and Hunter 1992,
and Democracy 923). In what was then Czechoslovakia, an envi-
ronmental group wrote an exposé demanding a
solution to the industrial pollution in and around
Bratislava (ibid., 926). The circulation of this
publication, and the subsequent attempt to jail
By
its authors, was “a central rallying point” for the
DAVID M. DRIESEN
prodemocracy revolution in 1989 (ibid.). In the
same year, “when five thousand people gathered
in Sofia, Bulgaria, to protest environmental pol-
lution, it was the country’s first public protest in
forty years” (ibid.). One week later, the
Bulgarian leader resigned (ibid.).
David M. Driesen is the Angela R. Cooney Professor of
Law at Syracuse University College of Law, an affiliate
of the Maxwell School of Citizenship Center for Environ-
mental Policy and Administration, and an adjunct pro-
fessor at the State University of New York College of
Environmental Science and Forestry. Professor Driesen
is the author of The Economic Dynamics of Environ-
mental Law (MIT Press, 2003), the winner of the Lynton
Keith Caldwell Award for the best book of the year on
science, environment, and technology. He has written
numerous law review articles on national and interna-
tional environmental law and on constitutional law. Pro-
fessor Driesen holds a J.D. from the Yale Law School
(1989) and served as an attorney for the Natural
Resources Defense Council, a leading citizen group,
prior to joining the Syracuse University faculty.
NOTE: I would like to thank Noelle Valentine for
research assistance. Any errors belong to me.
DOI: 10.1177/0002716205281493
252
ANNALS, AAPSS, 603, January 2006

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ENVIRONMENTAL PROTECTION, FREE TRADE, AND DEMOCRACY
253
Environmental damage was a very visible flaw of communist rule in countries
such as Hungary, Bulgaria, and Slovakia. Citizens could actually see, taste, and
smell the pollution, but they were not allowed to talk about it (ibid.). This dichot-
omy between the visible effects of industrial pollution and the inability to speak
about them was one of the intolerable aspects of daily existence. The communist
regime did permit “nature protection” activities and groups formed to transplant
native plants, build tunnels for native frogs, and the like (ibid., 927). These groups
allowed citizens to discuss environmental problems and slowly evolved into hot-
beds of dissident activity, which spawned many postrevolution leaders.
Professor Schwartz has asked me to describe how the law of environmental pro-
tection and free trade might contribute to the development of democracy around
the world, a key aspect of the development of the world rule of law. In this dramatic
case, the demand for a clean environment played a significant role in stimulating
democracy. But usually the relationship between environmental law (and free
trade) and democracy is more subtle. I will argue that both bodies of law have some
capacity to aid development of democracy but that the relationship between envi-
ronmental protection, free trade, and democracy is somewhat complex.
I will begin this analysis by providing some basic background on international
environmental law and international trade law, emphasizing how both bodies of
international law interact with domestic legal regimes. I will then discuss the rela-
tionship between these bodies of law and more general democratic and rule of law
ideals.
International Environmental Law
Notwithstanding some early-twentieth-century conservation treaties, modern
international environmental basically came into being in the 1970s. It includes
both global environmental agreements with large numbers of parties; regional
pacts, such as agreements managing various transboundary water bodies and
airsheds; and some customary law.
A lot of classic international law involves states agreeing to some restraints on
their own conduct. Examples include conventions limiting the use of force.
International environmental law, however, often addresses problems that have
their roots in some of the unfortunate by-products of private productive activities.
Thus, the Convention to Regulate International Trade in Endangered Species of
Flora and Fauna (CITES) addresses the sale of animal parts in international trade,
an economically valuable activity. Unfortunately, the sale of these animal parts
encouraged those hoping to profit from the trade to kill so many animals that some
species became endangered (Reeve 2002, 7-15). The Montreal Protocol on Ozone
Depleting Substances addresses substances serving valuable economic functions,
refrigerating food, cooling down cars, acting as solvents in a variety of industrial
processes, and protecting crops from pests. The manufacturers of these sub-
stances, however, unwittingly unleashed forces destroying the stratospheric ozone
layer, which shields us from ultraviolet radiation capable of causing widespread

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THE ANNALS OF THE AMERICAN ACADEMY
skin cancer (Ozone Secretariat 1993). The Kyoto Protocol to the United Nations
Framework Convention on Climate Change addresses the burning of fossil fuels,
an economic activity at the heart of transportation, manufacturing, and the produc-
tion of electricity for homes and offices. Unfortunately, we have abundant evi-
dence that burning fossil fuels has warmed the earth’s average mean surface...