Daniel Bodansky

 

On his book The Art and Craft of International Environmental Law

Cover Interview of April 19, 2010

A close-up

My favorite chapter concerns the nature of international environmental norms.  This may sound like an abstruse topic, but international environmental norms are closer to home than most people realize.  In countless ways, we are affected by international norms—some social, others legal; some quite general, others very specific.

When my air conditioning system broke down a few years ago, the technician reported that the coolant had leaked out.  In its place he installed a synthetic chemical called HCFC-22.  If the same problem had occurred twenty years earlier, the replacement would have been a more ozone-unfriendly chemical, CFC-12.  In the future, it will be an even more environmentally benign chemical that does not contain chlorine.  The changes have been driven not by changes in technology or in domestic law (though technology and domestic law have both played a part) but by developments in the international treaty regime to protect the ozone layer.

In the Wal-Mart near my house, fish packages now display labels saying that the fish were harvested in a sustainable manner, in compliance with standards developed by the Marine Stewardship Council.  The Council is an independent non-profit organization that, according to its web site, “promote[s] sustainable fishing practice.”  Along similar lines, a leading home improvement store, Home Depot, has announced that it will, to the extent possible, buy wood from sustainably managed forests.

At home, my ten-year-old daughter used to reject tuna fish because she believed that eating it would harm dolphins.  Once she asked, in a worried tone, whether we had any ivory in the house. And when, to be provocative, I responded, “Is rhino horn okay?,” she answered emphatically, “No, it is not!”

What are the central features of these norms, and how might norms influence behavior?  How do we determine which ones are “legal” in character?  In the absence of judicial enforcement of international law, or sanctions for violations, does the legal status of a norm even matter?  In what sense can we say that a non-enforceable norm is “binding”?

The answers to these questions are not self-evident. Most people unconsciously transfer their understanding of domestic law to the international sphere and assume, in a common-sense way, that, if an agreement is legal in character, then its provisions are “legally binding” and the penalties for violation are also binding.

The Kyoto Protocol negotiations indicate otherwise.  The negotiating mandate for the Protocol was to develop a “protocol or other legal instrument,” but for the first year of the negotiations, a central issue was whether this legal agreement should contain legally binding obligations.  Then, after countries agreed to negotiate legally binding emissions targets, they adopted a provision on compliance that left open the “binding” character of the non-compliance regime.  It is no wonder that confusion is widespread.

In working on the Kyoto Protocol negotiations, I often encountered the view that, if the Protocol’s compliance committee cannot impose “binding” sanctions on violators, then this means that the Protocol itself is not legally binding.  Such a view is certainly understandable.  How can a norm be legally binding if the legal consequences for its violation aren’t binding?  Isn’t this like saying that stealing is illegal, but the jail sentences imposed against violators are optional?

To try to make sense of these puzzles, I explore the nature of international norms and their relation to behavior.  I then analyze what it means to characterize a norm as “legal” or “binding” and examine other important dimensions along which international environmental norms vary.