IUCN as catalyst for a law of the biosphere: acting globally and locally.

• Author: Robinson, Nicholas A.
• Position: International Union for the Conservation of Nature and Natural Resources

1. INTRODUCTION II. ENVIRONMENTAL LAW: MEDIATING BETWEEN NATURE AND HUMANS III. CHANGE AS THE "DEFAULT" LEGAL ASSUMPTION IV. IUCN's INTEGRATED VISION OF HUMANS IN NATURE A. The Convention on Trade in Endangered Species (CITES) B. Part XII of the UN Convention on the Law of the Sea (UNCLOS) C Convention on Migratory Species (CMS) D. Convention on Biological Diversity (CBD) V. IUCN's "CREATIVE" CATALYTIC ROLE: CONCEPTUAL LAW DEVELOPMENT VI. COMPARATIVE LAW ANALYSIS: AN ESSENTIAL ENVIRONMENTAL LAW PRIORITY A. The Significance of Comparative Law Techniques B. Environmental Impact Assessment C. Coastal Zone Management D. Insights Gained Through Comparative Law VII. IUCN's UNIQUE STATUS AS CATALYST FOR INTERNATIONAL COOPERATION AND THE PROGRESSIVE DEVELOPMENT OF ENVIRONMENTAL LAW A. The Acts Constituting IUCN B. IUCN's Legal Status Under International Law 1. International Law Criteria for Determining International Personality 2. The Lex Specialis of IUCN as an International Person 3. State Practice with Respect to IUCN's International Personality a. Capacity to Enter Agreements b. Treaty Recognition c. Increasing Cooperation 4. IUCN's Legal Capacity Under Municipal Law VIII. AN EVOLVING RECONCILIATION BETWEEN HUMANS AND NATURE I. INTRODUCTION

   Rene Dubos, the French microbiologist who popularized the maxim "think globally, act locally" (1) in connection with the 1972 Stockholm Conference on the Human Environment convened by the United Nations (U.N.), came to view the relationship of "humankind and Earth" as "a diversity of systems of symbiosis that constantly undergo adaptive changes and thus contribute to a continuous evolution process of creation." (2) His view of the future of the biosphere is an optimistic one. He posits that nature and humanity will interact and adapt, and that human creativity is an essential sustaining force whereby civilizations learn to make the most of the natural environments on Earth.

   Dubos's concepts provided a philosophical and scientific vision to inspire the 1972 Stockholm negotiations that created the U.N. Environment Programme (UNEP) and ushered in the processes establishing environmental law at both national and international levels. Since then, the enormity of the current changes that humans are causing around the Earth has made his vision ever more relevant; the pace and scale of global change poses challenges for societies across all parts of the biosphere. (3) Two decades after the U.N. Conference on the Human Environment in Stockholm, nations took stock of the deteriorating environmental trends when 8,000 governmental delegates and 116 heads of state from 172 nations assembled at the 1992 U.N. Conference on Environment and Development (the Rio Conference). This "Earth Summit" in Rio de Janeiro starkly concluded that "[h]umanity stands at a defining point in history." (4)

   Despite well-considered recommendations that the Earth Summit set forth in its thoughtful action plan, "Agenda 21," (5) the Rio Conference has stimulated rather modest reforms, inadequate to stem the accelerating deterioration in global environmental problems across the world. (6) In response to alarm about signs of further environmental degradation and chronic poverty experienced by billions of persons, the U.N. World Summit on Sustainable Development convened in 2002 and endorsed the "Johannesburg Plan of Implementation" to spur nations on to action. (7) Since then, there remains scant evidence of enhanced work to abate worldwide environmental degradation. Large intergovernmental conferences may be necessary, but are not by themselves sufficient to force implementation of environmental reforms.

   If the trends in environmental degradation are to be reversed and more sustainable patterns of human interactions with natural systems established, it will be necessary to identify how recommendations can be leveraged into action. It is the thesis of this Essay that human "creativity" can induce governments to take the effective actions that are promised but as yet unrealized. Such creativity can be stimulated by innovative governmental or intergovernmental programs or by persons acting individually or gathered into nongovernmental organizations (NGOs). There are ample examples of this creativity at work. (8) If harm to the environment is to be corrected, it will be important to understand how these creative instances can be identified and emulated.

   One little-appreciated record of such creativity is found in the work of the International Union for the Conservation of Nature and Natural Resources (IUCN or the Union). In 1948, 18 governments, 124 national agencies and nongovernmental organizations, and a collective of individual scientists and lawyers met in France to create IUCN, or the Union for the "Protection" of Nature as its original name provided, to help the nations of the world address emerging threats to the environment. (9) Since then IUCN has consistently worked on nature conservation issues across local, national, and international levels, earning a unique status among international organizations. (10) Because knowledge about Earth's environmental problems is becoming more widespread, the demands on IUCN are ever greater. (11) In order to understand the past significance and future potential of IUCN, it is important to evaluate its sui generis character status under international law.

   IUCN works with governments at all levels. IUCN's Commission on Environmental Law has stimulated a wide range of international lawmaking activities. (12) When environmental problems manifest themselves, state and local authorities are motivated toward enacting and implementing environmental laws at a remarkably fast pace, often with IUCN's assistance. For the past three decades, IUCN has also been involved with environmental lawmaking at the national level in all regions of the Earth. (13) These lawmaking phenomena are hard to perceive because public comment focuses on the final legislative product, rather than on the processes that produce new treaties or statutes. In its programs to facilitate lawmaking, IUCN concentrates on providing the expertise needed for the success of the process. IUCN's endeavors in building the web of national, local, and international environmental law deserves to be emulated more widely in order to resolve environmental problems more effectively.

   This Essay describes the quiet and creative role that IUCN has undertaken in building the field of environmental law. In evaluating IUCN's environmental law programs, it becomes clear that greater study and teaching of comparative environmental law is essential. As is discussed below, (14) comparative law analysis permits a fuller understanding of creative innovations in national and local environmental laws. That understanding, in turn, can show the way to replicate creative legal innovations, which if multiplied could do much to abate environmental problems worldwide. Environmental lawmaking is a powerful way to realize sustainability values and leverage implementation of recommended solutions to abate pollution, reverse desertification, supply potable water, or conserve biodiversity.

   Recognition of the numerous local environmental lawmaking actions, many of them reflecting global thinking, has been masked because the UN, the media, and even the academic world devote their attention to the failures of nations to agree internationally on new treaties, implementation of Agenda 21, or establishment of new international environmental intergovernmental organizations. (15) There is a growing literature about the need to strengthen UNEP or to set up a new environmental agency to counter other bodies such as the World Trade Organization. (16) These debates about building new institutions tend to divert attention from the accomplishments of existing institutions, in particular the local environmental law innovations. They bemoan the lack of universal action to sustain Earth's natural systems without acknowledging what has been accomplished, and how. Rather than pursue this formalistic insistence on building a new international intergovernmental body, much more study should be devoted to seeking and studying the locally effective, creative innovations.

   To learn from the many national or local environmental success stories and replicate this sort of action more rapidly, legal practitioners, government officials, and scholars alike must devote attention to the subject of comparative legal studies. Because this sort of study and analysis cannot proceed without comparative law, such studies are likely to develop. (17) Just as the field of environmental law itself has emerged in less than one generation, these comparative law studies will grow enormously in the next generation. In turn, students of comparative environmental law will help develop the adaptable legal framework necessary to reverse environmental degradation.

2. ENVIRONMENTAL LAW: MEDIATING BETWEEN NATURE AND HUMANS

   Rene Dubos's vision of creativity stimulating adaptive responses to environmental conditions in the evolving symbiotic relationship of humans and nature is illustrated by the emergence of the field of environmental law. Before 1972, no one would have posited that any such legal discipline existed. (18) Yet between 1972 and the adoption of the U.N. World Charter for Nature in 1982, (19) the field of environmental law had emerged, (20) In the Charter for Nature, drafted by IUCN and endorsed by UNEP, (21) the U.N. General Assembly codified and restated many of the basic norms of current environmental laws. (22) The Charter for Nature is a forceful international "soft law" instrument. Also during this period, legal education in environmental law began and law reviews such as Environmental Law at Lewis & Clark Law School rigorously defined and critiqued the young field. (23) Human creativity was at work fashioning new bodies of law and legal institutions across the United States (24)...