Environmental “Law” and Globalization Environmental Law 2 Spring 2007

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

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

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

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

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

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

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