The Role of National Courts in the Field of International Environmental Law

• Published date: 01 April 1998
• Date: 01 April 1998
• Author: Jutta Brunnée,Daniel Bodansky
• DOI: http://doi.org/10.1111/1467-9388.00122

Volume 7 Issue 1 1998 National Courts and IEL

Daniel Bodansky and Jutta Brunne

´e

Introduction

Richard Falk once spoke of the potential role of the

national court as ‘an agent of an emerging international

system of order, an agent that accords precedence to

the norms of international law when these norms come

into conf‌lict with the dictates of national policy’.

1

But

while national courts have played a signif‌icant role in

promoting human rights law,

2

little work has been done

on whether national courts have played, or could play,

a similar role in the f‌ield of international environmen-

tal law.

To help f‌ill this gap, in 1996 the American Society of

International Law’s Interest Group in International

Environmental Law (ASIL-IELIG) undertook a compara-

tive study of the application of international environmen-

tal law by national courts. The present issue of RECIEL

contains six articles adapted from reports from this

study. The full study will be published by the British

Institute of International and Comparative Law,

3

and will

include reports on a broad range of countries from

around the world. Each country report surveys the dom-

estic case-law involving the direct or indirect application

of international environmental law, as well as the bar-

riers to the greater application of international environ-

mental law by national courts. This article provides

background on the rationale of the study, its relationship

to existing scholarship, the criteria for case selection,

and an analysis of the project results.

Rationale and Relationship to

Existing Scholarship

The study of international environmental law in national

courts implicates two bodies of literature. The f‌irst con-

cerns implementation of and compliance with inter-

national environmental norms; the second, the role of

domestic courts in the international legal order. To

understand the rationale of the present project, it is use-

ful to locate the project within these two broad

research traditions.

Blackwell Publishers Ltd. 1998, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.

11

Implementation of International

Environmental Law

In recent years, there has been a surge of interest among

both international lawyers and political scientists on the

question of the effectiveness of international environ-

mental regimes.

4

Presumably, this is a sign of the matu-

ration of the f‌ield.

Initially, attention focused on the process of negotiation

and standard-setting. Writers applied negotiation theory

to international environmental problems;

5

assessed the

importance of interests, power and knowledge in the

emergence of international environmental regimes;

6

and

analyzed new lawmaking devices such as the framework

convention/protocol approach.

7

Now that a substantial

body of international rules and standards has

developed, attention has quite naturally shifted to the

question of whether these rules and standard are effec-

tive – whether they have actually changed the behaviour

of states and individuals in ways that help the environ-

ment.

What types of factors might contribute to the effective-

ness (or ineffectiveness) of an international environmen-

tal regime? One possibility is the nature of the problem

that the regime seeks to address. According to game

theory, for example, we would expect regimes address-

ing so-called ‘co-ordination’ problems to be more effec-

tive than those addressing ‘co-operation’ problems,

8

since in a co-ordination game, participants have no

incentive to cheat, whereas in a co-operation game

states can gain an advantage by ‘free-riding’ on the

efforts of others. Other scholars have tried to identify a

wider range of differences between ‘benign’ and ‘malign’

problems, including the distribution of costs and bene-

f‌its and the degree to which the problem results from

entrenched activities that are resistant to change.

9

Features of the international political system may also

have an important effect on the success of international

environmental regimes. For example, a regime is more

likely to be successful if backed by a powerful state such

as the United States, and less likely to be successful if