Environmental “Law” and Globalization

1. Environmental “Law”and Globalization Environmental Law 2 Spring 2007

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

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

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

5. Some forms of international law: • Treaties • Conventions, protocols, executive agreements • Customary international law • Declarations

6. MONIST—International law is part of the domestic law of the country Most common in civil law countries 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 General approaches to the relationship between domestic and international law

7. 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) Binding norm on agencies Constrain agency discretion Via implementing legislation By virtue of national commitment to the principle Justify agency action Ways in which international agreements can find their way into domestic law

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