Monday, February 29, 2016

From rules of general application to regulatory regimes in international law

Jaye Ellis recently posted "Form Meets Function: The Culture of Formalism and International Environmental Regimes". This highly theoretical piece has a brief historical argument, as well, which I'll excerpt here. The contents of the footnotes in the original appear here in brackets:
A formalist approach exercised influence in international environmental law until perhaps the late 1980s or early 1990s, during which time authors relied heavily on both public international law and private law within municipal systems in their attempts to articulate potential future directions for international environmental law. [International environmental literature from the 1960s-80s is replete with the articulation of rules of general application, anchored in public international law and in private municipal law. See, for example, G. Handl, ‘Liability as an Obligation established by a Primary Rule of International Law: Some Basic Reflections on the International Law Commission’s Work’ 16(1) (1985) Netherlands Yearbook of International Law 49-79; C.W. Jenks, ‘Liability for Ultra-hazardous Activities in International Law’ 117 (1966) Recueil de cours de l’Académie de droit international 99-198; L.F.E. Goldie, ‘Liability for Damage and the Progressive Development of International Law’ 14 (1966) International and Comparative Law Quarterly 1189-1264; L.F.E. Goldie, ‘Concepts of Strict and Absolute Liability and the Ranking of Liability in terms of Relative Exposure to Risk’ 16 (1985) Netherlands Yearbook of International Law 175-248; P.-M. Dupuy, ‘Due Diligence in the International Law of Liability’ in OECD (ed), Legal Aspects of Transfrontier Pollution (Paris: OECD Publications, 1977) p. 369. Most academics lost interest in these questions around the time of the 1992 Summit on Environment and Development; fortunately, there are some important exceptions, including A. Boyle, ‘State Responsibility and International Liability for Injurious Consequences of Acts Not Prohibited by International Law: A Necessary Distinction?’ 39 (1990) International and Comparative Law Quarterly 1-26; J. Barboza, The Environment, Risk and Liability in International Law (Leiden; Boston: Martinus Nijhoff, 2011); X. Hanqin, Transboundary Damage in International Law (Cambridge University Press, 2003). This literature is canvassed in J. Ellis, ‘Liability for International Environmental Harm’ (2013) Oxford Bibliographies Online - International Law.]
A trend away from such an approach and towards the construction of regulatory regimes became apparent in the late 1980s and seems to have been well established by the time of the second earth summit in Rio de Janeiro, Brazil, in 1992. [This trend can be illustrated by the trajectory of the regime to regulate ozone-depleting substances: the framework Vienna Convention for the Protection of the Ozone Layer was adopted in 1985 and entered into force in 1988. The Montréal Protocol on Substances that deplete the Ozone Layer was adopted in 1987 and entered into force in 1989. The Montréal Protocol was an innovative instrument, featuring schedules for the elimination of ozone-depleting substances (arts 2A-I) and a flexible amendment procedure that permitted both the expansion of lists of substances subject to regulation and the acceleration of phase-out schedules (art. 11 and Rules of Procedure for Meetings of the Parties to the Montréal Protocol, Decision I/1 of the Meeting of the Parties to the Montréal Protocol (MOP), contained in Annex I to the Report of the First Meeting of the Parties, Helsinki 1989). The famous and highly innovative Non-compliance Procedure was adopted by II/5 of the MOP, contained in Annex III of the Report of the Second Meeting of the Parties, London, 1990. The ozone depleting regime contains many features that came routinely to be incorporated in other multilateral environmental agreements, including robust reporting requirements, panels tasked with researching and reporting on various technical, technological, and scientific issues, and financial mechanisms for the provision of assistance to states, notably developing states, that required assistance in meeting their obligations under the regime. Not all of these features were innovations at the time of the adoption of the Montréal Protocol, of course, but this regime was a pioneer in the manner in which it brought together a wide range of mechanisms and procedures in a complex regulatory regime.]

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