The Gnat Is Older Than Man: Global Environment and Human Agenda

By Christopher D. Stone | Go to book overview

CHAPTER V
Treaties as Antidotes

THE VIRTUES OF A TREATY-BASED APPROACH

I HAVE expressed doubts that the slow-growing body of general principles of international law (those rules that prevail in the absence of any special treaty) should be relied upon to provide significant protection for the biosphere. Part of the explanation lies in the list of hurdles a litigating nation faces: getting the defendant to submit to jurisdiction, resolving complicated questions about causality, meeting standards of state responsibility, obtaining satisfaction on a judgment, should one eventually be forthcoming, and so on.

All of these defects in the general rules point to the advantage of bilateral and multilateral treaties that are hammered out and specially tailored to anticipate specific disputes in advance. 1 In conference, the negotiators can translate the nebulous contours of the customary law (which often amount to little more than “don't use your territory in such a way as to injure others”) into a more specific, reckonable and realistic set of obligations. Although treaties bind only the signatories, which is a distinct limitation, the other side of that coin is that the signatories have control over whom they are going to deal with, and who will be empowered to call them to account.*

There are several virtues to such agreements. First, while customary international law moves slowly, treaty negotiations provide focal opportunities both to clarify the controlling law and to establish the

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*
In addition, the more signatories a treaty can marshall, the stronger the case for applying the principles it embodies to nonsignatories indirectly on the basis that the widespread acceptance of the treaty is evidence that its principles have become part of the body of generally accepted principles and “customary law” that binds all members of the world community.

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