Brunnée: International Environmental Law and Community Interests: Procedural Aspects

Jutta Brunnée (Univ. of Toronto - Law) has posted International Environmental Law and Community Interests: Procedural Aspects (in Community Obligations in International Law, Eval Benvenisti & Georg Nolte eds., forthcoming). Here's the abstract:

This paper is a contribution to a book on obligations to collectively protect common goods in international law. It explores the procedural aspects of international environmental law’s evolution towards the protection of ‘community’ interests.

The paper first examines the interplay between procedural and substantive obligations, focusing on efforts to flesh out the standard of due diligence that is at the core of the harm prevention obligation in customary law. The recent decisions of the International Court of Justice in the Costa Rica v Nicaragua / Nicaragua v Costa Rica cases suggest that the specifics of the connections between procedure and substance may be less well settled than one may have assumed. Next, the paper surveys the rich array of procedural approaches to promoting and protecting community interests that has evolved in this setting, including law-making, implementation and oversight, and compliance and dispute settlement processes, as well as the range of ways in which non-state actors can be involved in these processes. Special attention is paid to the global climate regime that has evolved under the umbrella of the UN Framework Convention on Climate Change, including through the Paris Agreement adopted in December 2015.

The central argument of the paper is that, both under general international law and in the context of treaty-based regimes, the procedural dimensions of international environmental law hold the key to its ability to serve community interests. Procedure can promote the protection of community interests in concrete ways. For example, procedural requirements can step into the breach when substantive requirements lack specificity or when states are reluctant to invoke them. In the context of treaty-based regimes, procedural elements play crucial roles when participants hold divergent positions, work towards shared understandings of community interests and collective action, or work to develop, apply, or revise, substantive requirements. But the procedural aspects of international environmental law also are important in their own right. Procedure serves to enable, guide and at times even compel interaction between states and other international actors, including non-state actors. In so doing, procedural norms and practices contribute to the legitimacy and resilience of international law.