What future for international environmental law?
Jan 2, 2011

by Kenji Watanabe and Saeko Ikeda on December 24, 2010 Keywords: convention, environmental agreement, environmental law, governance, international law, policy, treaty

(Excerpts)

A new publication from the United Nation University (UNU) Press, entitled The Future of International Environmental Law, attempts the demanding task of assessing the effectiveness of existing international environmental law.

In the face of today’s rapidly evolving environmental crises of climate change, biodiversity loss and ocean acidification, such appraisal is important for informing the world’s policy-makers about how they can better develop and enforce multi-lateral governance.

Unfortunately, to date — as editors David Leary from the University of Sydney and Balakrishna Pisupati of the United Nations Environment Programme put it — “despite the proliferations of international environmental agreements, environmental hazards and new environmental challenges have continued to emerge”…

… In Europe, the Aarhus Convention epitomises the concept of the kaleidoscopic system. The Convention contains three main pillars: the right of the public to access information about the environment, the requirement for public participation in certain environmental matters, and the public’s access to courts and tribunals of law for environmental matters.

In Chapter 5, writing about public participation in ecologically sustainable development, Donna Craig and Michael Jeffery state that “these factors are a pre-requisite if public participation in environmental governance is to be meaningful. Public participation has functional benefits. It contributes to the quality of decision-making, increases legitimacy in the environmental governance process and builds local capacities which ultimately improve the quality of life of the public.”

The norm of public participation in environmental governance originates from the Rio Declaration on Environment and Development, specifically Principle 10. However, it is not devoid of risks. Greater public participation increases the financial costs of implementation and lengthens the time it takes to develop and implement effective laws. Furthermore, there is a real danger of overrating what public participation, per se, is capable of achieving in environmental governance.

Nevertheless, Craig and Jeffery emphasize that the costs of failing to include public participation in the long run are much greater than any costs associated with public participation. One example they provide is that of M.C. Mehta, an Indian citizen who filed a suit to save the iconic Taj Mahal from gradual decay from industrial air pollution and neglect.

Thanks to Mehta’s intervention, the Supreme Court of India closed more than 600 offending industries to meet stringent environmental pollution regulations. These and other cases are proof that cooperation among individuals, academics, corporations, and politicians can lead to more effective solutions, but only if pursuant to law….

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