Daniel Bodansky

In a nutshell

How and why do international environmental norms arise? In what ways do they affect behavior? Do they change what states and individuals actually do, and, if so, why? How effective are they in solving international environmental problems? These are some of the questions I examine in The Art and Craft of International Environmental Law.

The book has several defining features. First, it focuses on the processes by which international environmental law is developed, implemented, and enforced, rather than on the substance of international environmental law itself. Accordingly, it is organized thematically, with chapters on such topics as the causes of environmental problems, obstacles to international cooperation, the design of international agreements, policy implementation, enforcement, and effectiveness. Process issues have received increased attention in recent years but have not yet received a book-length treatment. The Art and Craft of International Environmental Law aims to fill that gap.

Second, the book is multi-disciplinary. To understand the international environmental process, we need to consider not only law, but also political science, economics, the natural sciences, and, to a more limited degree, philosophy, sociology, and anthropology.

Third, the book is theoretical in its orientation, but tries to ground its discussions of theory through the use of concrete examples. In a wonderful book entitled Nuts and Bolts for the Social Sciences, Jon Elster wrote that his subtitle might have been “Elementary Social Science from an Advanced Standpoint.” That has been my goal as well: to write an elementary book from an advanced standpoint, with a stronger methodological and philosophical orientation than is typical in an introductory work.

Finally, the book aims to be pragmatic, reflecting my experience working on international environmental issues as a U.S. government negotiator, adviser to non-governmental-organizations, and U.N. consultant. It tries to provide a real-world perspective on how international environmental law works—and sometimes doesn’t work.

Students and scholars of international law fall along a spectrum, from true believers at one end to complete cynics at the other. My book seeks to chart a middle course. It reflects a degree of skepticism about some of the more visionary claims regarding the role of international environmental law. But it does not throw out the baby with the bath water. Rather, it seeks a realistic understanding of both the role and the limits of international environmental law.

The wide angle

I decided to write this book after a personal incident that took place more than a decade ago—with which I begin the introductory chapter.

I was living in Seattle at the time. One evening the doorbell rang and it was an environmental volunteer asking for contributions for his organization. I wasn’t a big fan of his NGO, so I declined and when he asked why, I said that I disagreed with some of his organization’s positions. He asked which ones and I responded, “Norwegian whaling.” After an inconclusive debate about the status of minke whales in the North Atlantic, the volunteer, in frustration, played his trump card, exclaiming, “I suppose it doesn’ t matter to you that Norway is in violation of international law!” That really got me going, so I replied—somewhat pedantically—that I happened to be a professor of international law and that, as a legal matter, Norway is in compliance with the International Whaling Convention. He stomped off in search of greener pastures.

I found the encounter fascinating because it illustrated so many themes in international environmental law: the intertwining of normative and factual disputes, the special status of legal argumentation, the various design features of international agreements. And I got to thinking, what could a person read to get a broad, realistic, pragmatic overview of the field, which synthesizes the range of work in different disciplines on international environmental problems? I couldn’t think of anything and decided to write this book.

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.

Lastly

Is international environmental law on the right track?

Some think it has been a complete failure, but I view the picture as more complicated. Yes, the looming threat of global warming, the deterioration of many ecosystems, and the high rates of species extinctions should disabuse us of too optimistic an outlook. At the same time, international environmental law has achieved some notable successes—the Montreal Ozone Protocol and the North Pacific Fur Seals Convention, to name two. In doing so, international environmental law has displayed impressive ingenuity, developing a wide range of mechanisms for setting standards and promoting implementation.

In the end, international environmental law aims to find not the optimal outcome, but rather the skillful compromise that bridges the gap between competing positions and advances the ball, even if only a little. This view of international environmental law is admittedly more prosaic than heroic. It counsels us to resist the tempting oversimplification. It accepts that international environmental law, like politics, is the art of the possible—and seeks to find the “sweet spot,” which goes as far as feasible but not beyond. Above all, it sees the discipline of international environmental law, not as a panacea, but rather as an art and a craft.