To prevent automated spam submissions leave this field empty.
This was a fascinating panel, with speakers addressing questions related to the role of international law in facilitating efforts to “green the economy.” Moderater Elizabeth Dowdeswell began by offering a trajectory of international environmental law, presenting the concept of greening the economy as the current theme, naturally following on from sustainable development. Markus Gehring’s presentation described this as an exciting time in the history of the green economy, as lawyers begin to work on what this policy slogan might actually mean and how it can be implemented. He described studies that he and colleagues had conducted that investigated obstacles in international law that could hamper national governments moving to a green economy and that surveyed national laws with innovative approaches. The evidence is that this is a global phenomenon, occurring in countries around the world, with certain principles emerging as common principles, even as the details of implementation differ slightly. For international lawyers, Dr. Gehring observed, the question was primarily whether international law would stand in the way of domestic efforts to green the economy. His study had found that there was nothing inherent in international law that would hamper a country adopting a green economy, but questions still remain about whether international law could actually facilitate countries moving towards a green economy.
Dr. Kamal Hossain spoke next, focusing on the extent to which international law could facilitate the transition to greening the economy. He talked about the history of international instruments concerning the environment being adopted as soft law instruments, which he didn’t think was ideal, and the need to change the conduct of multiple parties, including governments, private entities, farms, and individual consumers. The problem, he said, was multi-layered and multi-scale, and required interdisciplinary efforts. Dr. Hossain also urged that the international community move beyond North-South polarization. He ended his presentation by observing that the international community must keep responding to the challenge, and that this is a continuing struggle.
Professor Esty spoke next and urged a fresh approach to the role that international law might play in advancing efforts to green the economy. He acknowledged the role that international law can play in consolidating norms and guiding behavior, and argued that the norm for the 21st century should be one focusing on environment, energy, and innovative approaches. He urged a commitment to integration. Professor Esty also argued strongly in favor of more use of soft law, benchmarking, and monitoring, with international law playing a role in distributing best practices and data regarding performance as measured against those benchmarks. Although he acknowledged that some hard targets had worked in the past, as with the Montreal Protocol on Ozone Depleting Substances, he urged rejection of the “targets and timetables” approach going forward. Interestingly, he urged that performance be measured against peer groups of countries, so that countries would not be measured against countries with completely different attributes.
The panel was a fascinating exploration of an important topic. There was less consensus on Professor Esty’s preference for soft law approaches. Dr. Hossain urged that instead of focusing on whether law was soft or hard, the international community should instead evaluate international law measures according to whether they were effective or ineffective. Professor Esty did not disagree that effectiveness should be the test, but stuck to his view that hard law approaches were not appearing to be fruitful in international negotiations right now. All the speakers agreed, however, that there is a need for change and progress in developing green economies. Integration, the need to include the private sector in efforts, and the recognition that much of the “greening” activity will come from national innovation and efforts were all strong themes throughout the presentations. The sense was that the role of international law should be both to facilitate those national efforts if it could, and, perhaps more immediately, not to stand in the way of greening efforts with impediments in areas such as trade law or investment law.
Annecoos Wiersema is the Ved P. Nanda Chair & Associate Professor of Law at the University of Denver Sturm College of Law.