Learning to Live with Losing: International Environmental Law in the New Millennium
By John K. Setear
INTRODUCTION
For United States environmental law, the turn of the millennium augurs a number of exciting improvements: emissions trading, reg-neg, watershed- or ecosystem-oriented management, conservation by non-governmental actors, and the Internet's boost to these and other environmental endeavors. It will be a brave new world that has such innovative and contextualized organizational mechanisms in it, especially since these approaches will build upon a system that has matured remarkably in less than three decades of sustained political prominence.
For international environmental law, this essay argues, the outlook is gloomier. The Earth Summit in Rio de Janeiro opened the last decade of the previous millennium with a flood of publicity and optimism about international environmental cooperation. At Rio in 1992, the international political system expressly turned its attention to two truly global problems--biodiversity and climate change--that raised difficult issues of science, economics, and politics. The Summit produced two treaties, the Convention on Biodiversity and the Framework Convention on Climate Change, that were both signed by more than 150 nations and that both entered into force less than two years later. Tens of thousands of people were present in Rio for what appeared to many to be the creation of a new environmental order.
Almost ten years later, however, such optimism seems largely misplaced. The biodiversity issue has proven to be so complex and contentious that nations have yet to go beyond the vague generalities of the Convention on Biodiversity and impose any binding duties on nations to take concrete steps to preserve the earth's biological diversity. The climate-change train, by contrast, has gone a bit further down the tracks, but it appears headed for derailment at the sixth Conference of the Parties (“COP-6”) at the Hague, set for mid-November of 2000. Five years after the Earth Summit, the nations of the world signed the Kyoto Protocol, which sets forth binding, concrete obligations for reductions in greenhouse gases emitted by the industrialized nations.2 Unfortunately, however, no industrialized nation has actually ratified the Protocol and thus committed itself to treat the Kyoto Protocol as legally binding. The COP-6 meeting, originally intended to iron out some important imprecisions in the Kyoto Protocol, looks instead as if it will be the forum for a debacle of unparalleled proportions in international environmental law--the decisive failure of an ambitious, laboriously negotiated, and comprehensive approach to an important international environmental problem.
This essay argues that the derailment at the COP-6 meeting will prove to be a turning point for international environmental law at the turn of the century. Looking back from the year 2000, the COP-6 derailment of climate-change cooperation is effectively unprecedented and especially disturbing. Looking ahead from 2000, the same substantive problems plaguing the COP-6 are likely to hinder international cooperation on the rest of the international environmental agenda of the early 21st century. This essay also argues that, procedurally, international environmental law in the late 20th century has adopted a “legal-textual” approach of which the climate-change negotiations are but one example, and that the 21st century will require either great patience with such an approach or an alternative paradigm of international environmental cooperation.
The essay begins with a survey of the legal and political landscape as the COP-6 meetings approach. The essay predicts that the COP-6 meetings will fail to produce meaningful progress. The essay then sets forth a typology of failure for international cooperative efforts and argues that the predicted failure at the COP-6 meetings will be both almost unprecedented and especially disheartening. It is one thing for an international environmental regime to fail for lack of rigorous enforcement of its rules, or because those rules are formulated too late or too loosely. It is another thing for an international environmental regime to struggle for a decade and then be unable to produce any binding rules at all.
The essay then takes a step back from the particular and proximate phenomena surrounding the COP-6 and looks at the deeper structural factors behind the failure. Climate change involves great scientific, political and ideological complexity. These factors have combined to stymie progress on achieving legally binding, concrete international agreements. The essay then steps back from the climate-change arena to examine other international environmental issues likely to be prominent in the early 21st century, and argues that these issues involve the same deep structure that has prevented progress on climate-change cooperation. The essay concludes by examining a variety of procedural paradigms--including the dominant legal-textual paradigm, but also examining a technological, a technocratic, and a “legal-institutional” paradigm--with which to approach the substantive problems of international environmental law in the 21st century.
For United States environmental law, the turn of the millennium augurs a number of exciting improvements: emissions trading, reg-neg, watershed- or ecosystem-oriented management, conservation by non-governmental actors, and the Internet's boost to these and other environmental endeavors. It will be a brave new world that has such innovative and contextualized organizational mechanisms in it, especially since these approaches will build upon a system that has matured remarkably in less than three decades of sustained political prominence.
For international environmental law, this essay argues, the outlook is gloomier. The Earth Summit in Rio de Janeiro opened the last decade of the previous millennium with a flood of publicity and optimism about international environmental cooperation. At Rio in 1992, the international political system expressly turned its attention to two truly global problems--biodiversity and climate change--that raised difficult issues of science, economics, and politics. The Summit produced two treaties, the Convention on Biodiversity and the Framework Convention on Climate Change, that were both signed by more than 150 nations and that both entered into force less than two years later. Tens of thousands of people were present in Rio for what appeared to many to be the creation of a new environmental order.
Almost ten years later, however, such optimism seems largely misplaced. The biodiversity issue has proven to be so complex and contentious that nations have yet to go beyond the vague generalities of the Convention on Biodiversity and impose any binding duties on nations to take concrete steps to preserve the earth's biological diversity. The climate-change train, by contrast, has gone a bit further down the tracks, but it appears headed for derailment at the sixth Conference of the Parties (“COP-6”) at the Hague, set for mid-November of 2000. Five years after the Earth Summit, the nations of the world signed the Kyoto Protocol, which sets forth binding, concrete obligations for reductions in greenhouse gases emitted by the industrialized nations.2 Unfortunately, however, no industrialized nation has actually ratified the Protocol and thus committed itself to treat the Kyoto Protocol as legally binding. The COP-6 meeting, originally intended to iron out some important imprecisions in the Kyoto Protocol, looks instead as if it will be the forum for a debacle of unparalleled proportions in international environmental law--the decisive failure of an ambitious, laboriously negotiated, and comprehensive approach to an important international environmental problem.
This essay argues that the derailment at the COP-6 meeting will prove to be a turning point for international environmental law at the turn of the century. Looking back from the year 2000, the COP-6 derailment of climate-change cooperation is effectively unprecedented and especially disturbing. Looking ahead from 2000, the same substantive problems plaguing the COP-6 are likely to hinder international cooperation on the rest of the international environmental agenda of the early 21st century. This essay also argues that, procedurally, international environmental law in the late 20th century has adopted a “legal-textual” approach of which the climate-change negotiations are but one example, and that the 21st century will require either great patience with such an approach or an alternative paradigm of international environmental cooperation.
The essay begins with a survey of the legal and political landscape as the COP-6 meetings approach. The essay predicts that the COP-6 meetings will fail to produce meaningful progress. The essay then sets forth a typology of failure for international cooperative efforts and argues that the predicted failure at the COP-6 meetings will be both almost unprecedented and especially disheartening. It is one thing for an international environmental regime to fail for lack of rigorous enforcement of its rules, or because those rules are formulated too late or too loosely. It is another thing for an international environmental regime to struggle for a decade and then be unable to produce any binding rules at all.
The essay then takes a step back from the particular and proximate phenomena surrounding the COP-6 and looks at the deeper structural factors behind the failure. Climate change involves great scientific, political and ideological complexity. These factors have combined to stymie progress on achieving legally binding, concrete international agreements. The essay then steps back from the climate-change arena to examine other international environmental issues likely to be prominent in the early 21st century, and argues that these issues involve the same deep structure that has prevented progress on climate-change cooperation. The essay concludes by examining a variety of procedural paradigms--including the dominant legal-textual paradigm, but also examining a technological, a technocratic, and a “legal-institutional” paradigm--with which to approach the substantive problems of international environmental law in the 21st century.