Editorial

• Date: 01 July 2012
• Published date: 01 July 2012
• DOI: http://doi.org/10.1111/j.1467-9388.2012.00757.x

Editorial

‘What is international environmental law’ is one of

those existential questions that international environ-

mental lawyers ask themselves every now and again. It

is a nagging question, as answering it may lead to the

realization that international environmental law may

not be that ‘special’ after all. Specializing in the field

gives us some comfort. The term points us to specific

sources, actors, norms, concepts, decision-making pro-

cedures, etc., with which we are familiar. And, indeed,

as has become clear over time, international environ-

mental law has distinctive traits that have made it – at

least in some people’s views – into a special field of

international law.1At the same time, it is clear that

addressing what we have come to know as ‘environmen-

tal’ problems (air pollution, biodiversity loss, chemical

pollution, climate change, deforestation, hazardous

waste, water scarcity, etc.) will be affected by, and have

implications for, many other areas of international law.

Many of the root causes of global environmental prob-

lems (e.g., energy use, excessive consumption, popula-

tion growth) cannot necessarily be tackled by the body

of international environmental law as we know it alone.

Moreover, the effects of international environmental

law may well go beyond the boundaries of the field, and

may impact on, for instance, human rights and trade

flows. In other words, truly understanding and respond-

ing to environmental problems requires an analysis of

the interactions between the special field of interna-

tional environmental law and its others.2This complex-

ity is one of the aspects that make (international)

environmental legal scholarship so challenging – if not

exciting.3However, including the root causes and ulti-

mate effects of environmental problems could also cast

the net very wide. As Bodansky notes: ‘Indeed, if as

some claim, everything is interconnected, then every-

thing becomes an environmental problem.’4What

becomes apparent is that the boundaries of interna-

tional environmental law are amorphous, but that it is

useful for international environmental lawyers to look

beyond the more narrowly defined area of international

environmental law.

Sometimes these existential questions about interna-

tional environmental law have very practical implica-

tions. As Editor of RECIEL, it means that in some cases

I have to interpret the scope of the journal with respect

to international (as well as European) environmental

law. Mostly this is a straightforward exercise. Few

would question whether RECIEL is an appropriate

outlet for legal analyses of the precautionary principle,

a discussion of the compliance mechanism of the Kyoto

Protocol or an assessment of the effectiveness of CITES,

just to give a few examples. Many would also find it

self-evident that contributions to RECIEL do not focus

on the prohibition of the use of force contained in

Article 2.4 of the UN Charter, drug trafficking or how to

delimit countries’ exclusive economic zones. However,

between these admittedly clear-cut cases are many

shades of grey. Does the scope of the journal include

articles on, for instance, international trade, human

rights, genetic resources and conflict situations? As the

reader can infer from the contents of this issue, the

answer is affirmative in principle. However, there is

no blanket rule, and a new assessment will be needed

for each new submission, and will depend on the spe-

cific topic dealt with, as well as the views of individual

reviewers. Suffice it to say that RECIEL encourages

submissions that push the boundaries of international

environmental law – both literally and figuratively!

The first article of this issue, written by Caroline Foster,

emphasizes the (by now well-known) relevance of inter-

national economic law for international environmental

law. Focusing on two issues in international judicial

practice – the burden of proof and the standard of

review – Foster critically analyzes recent case law of

the Appellate Body of the World Trade Organization

(WTO) and the International Court of Justice (ICJ).

Whereas Foster’s analysis of the Whaling in the Ant-

arctic case before the ICJ leads her to conclude that

international adjudicators may in some cases in which

1See, e.g., M.A. Fitzmaurice, ‘International Environmental Law as a

Special Field’, 25 Netherlands Yearbook of International Law (1994),

181, at 183–185; D. Bodansky, J. Brunnée and E. Hey, ‘International

Environmental Law: Mapping the Field’, in: D. Bodansky, J. Brunnée

and E. Hey (eds.), The Oxford Handbook of International Environ-

mental Law (Oxford University Press, 2008), 1, at 24.

2The need to examine interactions between different bodies of inter-

national law has received particular attention following the inclusion

of the fragmentation of international law on the agenda of the Inter-

national Law Commission. See Fragmentation of International Law:

Diff‌iculties Arising from the Diversif‌ication and Expansion of Interna-

tional Law. Report of the Study Group of the International Law Com-

mission (A/CN.4/L.682, 13 April 2006), found at <http://untreaty.un.

org/ilc/documentation/english/a_cn4_l682.pdf>.

3L. Fisher, B. Lange, E. Scotford and C. Carlarne, ‘Maturity and

Methodology: Starting a Debate about Environmental Law Scholar-

ship’, 21:2 Journal of Environmental Law (2009), 213, at 218.

4D. Bodansky, The Art and Craft of International Environmental Law

(Harvard University Press, 2009), at 11.

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Review of European Community & International Environmental Law

RECIEL 21 (2) 2012. ISSN 0962 8797

© 2012 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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