Environmental Law and Globalization Environmental Law 2 Spring

Environmental “Law” and Globalization Environmental Law 2 Spring 2007

How does the “international” layer affect other layers of environmental law and regulation? n n n Multinational and binational agreements Federal law State law Municipal law Collaborative “law” Private ordering (e. g. , forest certification)

Do the higher levels-n n n Control the layers below (supremacy clause model)? Influence the layers below? (“New York and California” model) Get ignored by the layers below? YES!

Hard Law/Soft Law n “Hard law”=real law • Binding norms of conduct • Applied in litigation or disputeresolution mechanism • Backed by coercive power of the state n “Soft law” = ? • Creates norms, but often vague • Either no mechanism to enforce, or enforcement left unclear, or enforcement only though state-tostate negotiation

Some forms of international law: n n Treaties Conventions, protocols, executive agreements Customary international law Declarations

General approaches to the relationship between domestic and international law n n MONIST— International law is part of the domestic law of the country Most common in civil law countries n n DUALIST— International law not part of the domestic law of the country unless it is brought in by implementing legislation Most frequent in common-law countries

Ways in which international agreements can find their way into domestic law n n Create explicit right of private action Implied right of private action Incorporation by implementing legislation Give content to broad norms (“reas. prudent person” and precautionary principle) n n Binding norm on agencies Constrain agency discretion • Via implementing legislation • By virtue of national commitment to the principle n Justify agency action

If an international norm isn’t “hard” enough to do any of the foregoing, is it worth a damn?