Realism, Utopia and the Future of International Environmental Law

Abstract

In spite of its impressive development at the level of treaty law and soft law, international environmental law remains a weak and under-developed body of law. This is due especially to the persistent institutional “deficit” and lack of compulsory dispute settlement mechanisms that hamper effective monitoring and implementation of environmental standards. To overcome these limits, in a perspective that avoids wishful thinking, such as the project of an “international court for the environment”, and the hard realism of an unfettered sovereignty over the natural resources, this paper argues for a “realistic utopia” that recoups the original idea of the natural environment as a “common good”. Congruent with this idea is the re-discovery of the category of erga omnes obligations to be administered in the interest of the international community as a whole. At the normative level, this entails a re-conceptualisation of “sovereignty” in terms of responsible exercise of state powers over natural resources located in the national territory and over activities capable of impacting on the global environment, so as to make such exercise responsive and functional to the achievement of the goal of conserving the quality of the environment that sustain our life. At the institutional level this approach invites two responses: rejection of the need for reform of global institutions and reliance instead on market mechanisms of self-regulation and transnational private enforcement; or a search for reform of the institutional system of environmental governance in view of creating effective multilateral institutions that can mirror what has been done in other areas of international law, such as trade, investments and human rights. This paper argues that the two approaches are not mutually exclusive. They should be complementary because the first one can hardly work without the other.