Basic Functions and Principles of International Environmental Law in the Context of Managing Water Resources

By Nafziger, James A. R. | Denver Journal of International Law and Policy, Summer 2011 | Go to article overview

Basic Functions and Principles of International Environmental Law in the Context of Managing Water Resources


Nafziger, James A. R., Denver Journal of International Law and Policy


I. INTRODUCTION

International environmental law plays an important role in shaping and giving effect to institutional policies for managing natural resources. Its rules, principles, and procedures are normative not only when they are binding as hard law but also when they provide non-binding guidance as soft law for national and sub-national policies. In either normative capacity, international environmental law lends greater authority and coherence to divergent sectoral policies and fills gaps where effective policies are incomplete or do not exist. The law also facilitates the transfer of institutional policies and techniques from one political unit or system to another. This harmonizing effect is particularly apparent within integrated regional systems such as the European Union and federal systems such as the United States. But the systems themselves are also becoming more congruent with each other. The growing structural convergence of the European and United States systems is itself a good reason to undertake trans-Atlantic analysis of institutional policies for regulating and managing resources. We can learn a great deal from each other's experiences in having to grapple, more and more, with the same or similar complexities.

The purpose of this survey is to introduce the essentials of international environmental law and suggest how it can be efficiently integrated into postsecondary education concerning the comparative environmental impacts of different institutional policies for managing natural resources. The focus is on the environmental management of shared water resources. The aim is to give students, whether law-trained or not, a deeper understanding of the uses of international environmental law in a variety of ecological sectors, from the oceans to the mountains, and on all tiers of natural resource management, from local to international.

This survey therefore summarizes the general legal framework and historical development of international environmental law, then identifies several of its essential functions and general principles, and concludes with a brief commentary on a few of its contributions and challenges to it. Expressing the uses of the law primarily in terms of the essential functions of multilateral agreements and the most important principles is intended to highlight the utility of international environmental law and institutions. At the very least, a familiarity with such functions and principles, within the context of shared water resources, yields a common vocabulary to express diverse policy alternatives.

II. THE GENERAL LEGAL FRAMEWORK

Public international law, primarily, but also private international law (1) play significant roles in resolving transboundary, environmental disputes. Limited extraterritorial application of national regulatory law is also noteworthy. (2) Although public international law as a whole was once confined, in the positivist tradition, to relations between States, it infuses nearly every sector of human activity today. (3) Regardless of whether particular rules of law are hard, in the sense of being legally binding, or soft, when they are normative but non-binding, they not only govern relations between sovereign States but also shape expectations and decisions within national and sub-national systems. Thus, clean-air issues implicate the law of transfrontier pollution whereas issues of water quality and accessibility engage the international law of watercourses and drainage basins. By the same token, local management of fisheries may need to take account of international rules applicable in coastal zones. International environmental law also promotes such ecological projects as the establishment of natural heritage sites, reserves, other protected areas, and biological diversity programs.

Several examples illustrate the role of international environmental law in managing water resources. In the Case Concerning the Gabcikovo-Nagymaros Project, (4) Hungary and Slovakia disputed each other's construction of dams on the Danube River. …

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