Complies with, and is within, the law

“Ensuring environmental quality is a feature of all functioning democracies and thus all such democracies have environmental law.

But environmental problems are never solved by a statute or a court case. Legislation does not magic away waste. A court case will not ensure the enduring protection of endangered species.

What is needed is the ongoing management of complex environmental problems in a reasoned and legitimate way that both complies with, and is within, the law.

That is why environmental law is as much about environmental governance as environmental standards – it is about public institutions directing, regulating, authorising, guarding, and being responsible for environmental protection.”

M. Lee and L. Fisher, ‘Environmental Governance after the EU: The Need to Ensure Accountability’, Environment EU Ref Blog, Nov 2016 <https://environmenteuref.blogspot.de/2016/11/environmental-governance-after-eu-need.html&gt;

To empower, constrain, and compel

“International law empowers, constrains, and compels governments in various ways and at various levels.

For example, a country that enters into free trade agreements gains economic advantages it would not otherwise enjoy but, at the same time, its freedom to pursue other policies will be affected. It may no longer be permitted to protect domestic industries, thus increasing unemployment in some sectors of the economy, and making it more difficult to promote the economic and social welfare of some of its citizens. Other parts of its economy may develop more rapidly, putting pressure on land, natural resources, water supply, and air quality, leading to unsustainable development, environmental degradation, and poorer conditions of health.

It may thus be harder to meet commitments undertaken in the International Covenant on Economic, Social and Cultural Rights or at the UN Conference on Environment and Development. Equally, those same commitments may restrict certain forms of economic development and limit the country’s ability to benefit from free trade in natural resources.

Ultimately, governments make policy choices about how to balance competing objectives of this kind on political, social, economic, or ethical grounds. These choices will be reflected in the agreements they sign or in the state practice that contributes to general international law.

The relationship between these environmental concerns, international trade policy and human rights law is best negotiated by states acting through the United Nations, the World Trade Organization (WTO), and other international organizations.

However, few governments can foresee in detail all of the consequences of the commitments they make. Even when they do foresee them, it is not always possible to secure the agreement of other governments on how to address whatever tensions may arise out of the interaction of the commitments into which they have entered.”

A. Boyle, ‘Relationship Between International Environmental Law and Other Branches of International Law’, in Bodansky, Brunnée, Hey (eds) The Oxford Handbook of International Environmental Law (OUP 2008) 126

The fictitious dichotomy

“Looking back, it was acknowledged that environmental problems had to developed, through international diplomacy, responsive actions against various adverse effects.

The ultimate goal for the modern approach was to find harmony between the technosphere and the biosphere – between the natural and man-made environments. To this end, it was held necessary to impose restrictions upon activities in the technosphere in order to protect the elements of the biosphere: the hydrosphere, the atmoshere and the lithosphere.

However, in the face of new environmental threats it was recognised that the modern attempt to protect environmental elements was simply too “elementary”. In its drive to protect air, water and the terrestrial environment, modernism had led to a static approach which failed to pay sufficient attention to the dynamic role of and the interaction between environmental elements.

It appeared that international environmental law was becoming too abstract and was, in fact, losing sight of environmental issues. Indeed, it seemed a gap was emerging between man and nature. The gap had formed as a consequence of a too rigid distinction between the technosphere and the biosphere.

In the end, the dichotomy between man and his environment was a mere fiction, and gave a wrong impression of human activities being separate from the surrounding natural environment.”

T. Kuokkanen, International Law and the Environment: Variations on a Theme (Volume 4 of the Erik Castren Institute Monographs on International Law and Human Rights Series, Brill 2002) 240-241

Us in the middle

“[T]he two worlds of man – the biosphere of his inheritance, the technosphere of his creation – are out of balance, indeed, potentially, in deep conflict.

And man is in the middle.”

Ward and Dupos (1972), cited in T. Kuokkanen, International Law and the Environment: Variations on a Theme (Volume 4 of the Erik Castren Institute Monographs on International Law and Human Rights Series, Brill 2002) 141