|Environmental Change and International Law: New Challenges and Dimensions (UNU, 1992, 493 pages)|
|Issues in international environmental law|
|2. International norm-making|
The international legislative process is productive and capable of expressing as international law whatever rules and regimes the world or the appropriate special or regional community can agree on. Such law is most conveniently set out in the form of multilateral treaties applicable to the states that become parties, but may also take the form of less precise but generally applicable customary law stimulated and crystallized by the systematic adoption of formal declarations and even as the by-product of widely accepted conventional rules: finally, certain norms may, at least initially, take the form of non-binding but still generally observed soft law.
The quality of the international environmental rules thus established depends in the first instance on the expertise of the specialized representative, expert, and secretariat organs charged with carrying out or assisting these legislative tasks, which for the most part are likely to be the organs of a number of existing IGOs active in this field. Such organs are already quite numerous in the UN system and in some of the major regional agencies, though it may be useful to establish some even more technically specialized organizations and organs, for example such as might be required to deal with the threats of global climatic changes or to protect certain international commons from pollution. The establishment of such organizations and organs of course itself requires and is also part of the international legislative process.
The great weakness of that process, i.e. the considerable unevenness in the applicability of even carefully formulated conventional law, due in part to reservations and options but largely to the quantitative and technical incapability of many states to deal with the increasing flow of international legislation, should be recognized and countered by effective measures to assist states, particularly the developing ones, in becoming parties to and in absorbing into their domestic legal systems the considerable body of existing conventional environmental law, and then to perform the same service in respect of later additions to the canon.
Because of the great expertise, energy, and sometimes the material resources of national and international environmental NGOs, these should be encouraged and permitted to participate as far as possible in all aspects of the relevant international legislative process: the studies required to decide whether to initiate the process in respect of a particular problem; the formulation of instruments designed to deal with that problem; the adoption of such instruments by competent international bodies; and finally the rapid ratification of such instruments by as many as possible of the potential parties thereto. Such encouragement will also make the process more responsive than most international actions to the aspirations and concerns of the world's people.
It has been pointed out that the international legislative process is anything but too rigid; indeed, its formlessness and flexibility may be disturbing to some who, used to well-established but narrowly constrained municipal procedures, consider anything so variegated as multilateral treaty-making to constitute not really a "process" but at best unstructured diplomatic interactions that may fortuitously result in some useful codification or progressive development of international law but cannot really be relied on to do so. Actually, however, while an overall survey of the process may, at least at first sight, be confusing because of its manifold manifestations, certain specialized law-making units have over the years evolved rather precise and predictable legislative methodologies, which those who are experienced can rely on and use. However, and generally speaking this should be deemed an advantage, with the possible exception of a few organizations and fore, the multilateral treaty-making process remains flexible enough so that it can be adapted to the needs of particular situations and proposed instruments. Moreover, being flexible, it can more easily adapt as improvements are suggested, either by the imagination of some of the participants or arising out of institutional experience or news of the experience of other similar bodies. In short, international institutions are basically young and can and do learn,59 and that learning generally - unless occasionally false lessons are absorbed results in improving the operations of these organizations.
There is another, perhaps more surprising, observation to make about international law-making. One might believe that in a process largely carried out by the instructed and to a considerable extent freely replaceable governmental representatives, there would not be much room for individual initiative or merit, or cause to assign individual credit - or blame - for the success or failure of a particular legislative enterprise. Such a conclusion, however, would be quite wrong. The international legislature ultimately consists of people who interact, often for many years, sometimes in respect of many political enterprises and sometimes predominantly in respect of one. This interaction breeds loyalties both to persons and more often to causes that may transcend a particular representative's instructions and especially the vaguely expressed directives that emanate from most governments in respect of international political enterprises far from home.60 There are therefore any number of examples of how a particular individual, or sometimes several, will decisively and essentially personally influence the formulation of a particular treaty. These persons more often than not are representatives of minor states (the major ones tending to control their delegates more closely) who through their merits (usually including a dose of longevity) capture key positions in developing some instrument: chair of an influential expert group, of a drafting committee, or of a more prominent body such as the formulating organ; indeed, often they work their way up, tending to a particular draft instrument in different and sometimes ever-more prominent roles over the years. Alternatively such persons may occupy leading positions (e.g. executive head) in the competent secretariat or unit. In other instances, strong support has come from rank outsiders, who are persistent and skilful in lobbying or pressuring governments or their representatives in some self-adopted cause on behalf of a public-spirited body. In any event, an instrument or project that attracts the support of one or more talented and dedicated legislative heroes, preferably from nominally opposite camps, is much more likely to succeed than can be predicted by a sober political analysis of the supposed interests of power blocks.