International Environmental Law: Rising to the Challenge of Common Concern?

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We were asked whether IEL is up to the challenge of common environmental concerns: whether its norms are "precise enough to influence states' and other actors' behavior," and whether it is "forceful enough to impose itself in the face of important economic and political interests." These questions appear to assume that to succeed IEL must be "precise" and "forceful," and that it may not sufficiently meet either of these demands. In my remarks, I will reflect on these assumptions and consider both the conceptual structure of IEL and its processes for law-making, implementation, and enforcement.

IEL remains rooted in customary law concepts that aim to balance competing sovereign interests. Under the foundational harm principle, environmental concerns have legal relevance only to the extent that they coincide with a direct impact on a state's territory. Collective environmental concerns, such as climate change, are difficult to capture in this framework. Of course, the conceptual structure of IEL has expanded beyond the classical interstate paradigm. The emergence of a legal concept of common concern of humankind suggests that certain types of environmental decline are matters of community interest. Although the concept of common concern does not imply a specific rule for the conduct of states, it does signal that their freedom of action may be subject to limits even where other states' sovereign rights are not affected in the direct transboundary sense envisaged by the harm principle. Such limits flow precisely from the fact that the concept identifies certain types of environmental degradation as of concern to all, which would appear to imply that obligations are owed erga omnes. In turn, …