DevelopmentsLawInternational 1991

Developments in the Law: International Environmental Law
Source: Harvard Law Review , May, 1991, Vol. 104, No. 7 (May, 1991), pp. 1484-1639
Published by: The Harvard Law Review Association
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DEVELOPMENTS IN THE LAW
INTERNATIONAL ENVIRONMENTAL LAW
"Man is endowed with reason and creative powers to increase and multiply
his inheritance, yet up to now he has created nothing, only destroyed. The
forests grow ever fewer; the rivers parch; the wild life is gone; the climate is
ruined; and with every passing day the earth becomes uglier and poorer."
ANTON CHEKHOV
UNCLE VANYA, act I (M. Frayn trans. I987) (circa I896)
"Perhaps it is the collective menaces,

arising from the world's scientific and technological strides
and from their mass consequences,
which will bind together nations,
enhance peaceful cooperation and surmount,
in the face of physical danger,
the political obstacles to mankind's unity."
UNITED NATIONS SECRETARY GENERAL U THANT

Statement at Opening of the Preparatory Committee for the
United Nations Conference on the Human Environment (I970)
"Of all possible worlds, we only got one

We gotta ride on it
Whatever we've done,
we'll never get far from what we leave behind
Baby, we can run, run, run, but we can't hide .
THE GRATEFUL DEAD

We Can Run
(IceNine Publishing Co., Inc. I989)
I484

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I99I] DEVELOPMENTS - INTERNATIONAL ENVIRONMENTAL LAW I485
TABLE OF CONTENTS
PAGE
I. INTRODUCTION ............................................................ I487
II. STATE LIABILITY AND PROCEDURAL NORMS .................. ... ............. I492
A. State Attribution and Breach of Duty ................. .................... I494
I. State Attribution ............. ....................................... I494
2. Breach of Duty: Sic Utere ............................................ I496
B The Stillborn Regime of International Liability .......... .. ................ I498
C. Custom as the Source of Law: Getting Off on the Wrong Foot? ..... ......... I504
D. The Codification of State Responsibility and the Sic Utere Principle ......... . I506
I. State Responsibility ............ ...................................... I507
2. Breach of Duty ............... ....................................... I508
E. An Exercise in Futility: The Rise of Procedural Duties ..... ................ I5II
I. Duty to Assess ............... ....................................... I5I3
2. Duty to Inform or Disclose ......... .................................. I5I7
F. The Limits of Legal Analysis ..................... ........................ I520
III. THE CREATION OF INTERNATIONAL ENVIRONMENTAL AGREEMENTS ......... ... I52I

A. The Creation of International Agreements: The Law and the Process .. ....... I522
B. Special Characteristics of Environmental Problems ......... .. .............. I529
I. The Interaction of Science and Politics ....... ......................... I529
2. The Use of Global Commons ......... ................................. I534
3. The Interests of Future Generations ....... ............................. I539
C. The Convention-Protocol Approach ................. ...................... I542
D. Recommendations for Global Warming Negotiations ........ .. .............. I546
E. Conclusion ............................................................ I550
IV. ASSENT TO AND ENFORCEMENT OF INTERNATIONAL ENVIRONMENTAL
AGREEMENTS ........................................ ................ . I550
A. Introduction ............................................................. I550
B. Sovereignty ............................................................. I552
I. Approaches to the Sovereignty Problem: Getting States to
(a) Cooperation Agreements .......... ................................. I555
(b) Limited Agreements ........... ................................... I556
(c) Exemptions and Opt-outs ......... ................................ I557
(d) Objectivity and Agencies .......... ................................ I559
2. Approaches to the Sovereignty Problem: Getting States to Comply ...
(a) Sovereignty Problems: The Failure of International Adjudication ...... I56I
(b) Monitoring by International Agencies: A Response to Sovereignty
Problems ........................................................ I563
C. Economic Defection .................................................... I566
I. Incentive Structures ...................... ........................... I567
2. Circumventing the State Level: NGOs and States ........ .. .............. I569
3. Circumventing the State Level: International Agencies and States .... ..... I57I
D. Additional Benefits of International Environmental Agencies ............. ... I573
I. Bypassing the State Level: International Agencies ......... .............. I573
2. Agency Structure ........................ ............................ I576
E. Conclusion ............................................................ I579
V. INSTITUTIONAL ARRANGEMENTS . . . .580

A. The Current "System" .. ....................... ........................... I58I
I. Relations Among IGOs ............ ................................... I58I
2. Relations Between IGOs and Nation-States ...... ....................... 586
3. Relations Between IGOs and the Public ....... ......................... I588
B. The Grail of Centralized Supranational Authority ......... .. ............... I590

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I486 HARVARD LAW REVIEW [Vol. I04:I484
C. Facilitating Coordination ..................... .......................... I593

I. Evaluating Decentralization ......... .................................. I594
2. Alternative Arrangements .......... ................................... I596
D. Broadening Participation ................................................ i6oo
I. Why Involve Non-State Actors? ........ ............................... i6oi
2. Which Non-State Actors Should Be Involved? ...... .................... I602
3. Ensuring Public Participation ......... ................................ I603
E. Encouraging Compliance ............................... . I604
I. Recommend Standards ........... .................................... I605
2. Audit Compliance ............. ...................................... i6o6
3. Investigate Complaints ........... .................................... I607
4. Set Standards Subject to Plurality Rejection ...... ...................... I607
5. Set Binding Standards Subject to Opting Out ...... ..................... i6o8
F. Conclusion ............................................................. I609
VI. EXTRATERRITORIAL ENVIRONMENTAL REGULATION ...... .................. . I609

A. The Rise of Extraterritorial Environmental Regulation ................... ... i6I2
I. Environmental Regulation in Strong and Weak Regimes ............. . I6I3
(a) Legislation ...................................................... I6I3
(b) Adjudication .............. ...................................... I6I4
2. The Need for and Power of Extraterritorial Regulation ................. .. i6i6
(a) Extraterritorial Adjudication ........ .............................. I6I7
(b) Extraterritorial Legislation ........ ................................ I622
3. The Proper Scope of Extraterritorial Environmental Regulation ... ........ I623
B. The Need to Develop Coherent Doctrines for Extraterritorial Environmental
Regulation ............................................................ I624
I. Extraterritorial Adjudication ................... ....................... I624
(a) Choice of Law ............. ...................................... I624
(b) Choice of Forum ............ ..................................... I627
2. Legislation ................................. I630
C. A Method for Determining When Extraterritorial Regulation Is Appropriate ... I63I
I. Identifying Costs and Benefits ......... ................................ I632
2. Weighing the Costs and Benefits ........ ............................... I634
3. Applying the Presumption .......... .................................. I636
4. Approaching the Question of a Reasonable Environmental Regime .... ..... I637
D. Conclusion ............................................................ I638

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I. INTRODUCTION
Recent events have dramatically reminded the world that environ-

mental protection is an international responsibility. In I984, methyl
isocyanate gas leaked from a plant at a Union Carbide subsidiary in
Bhopal, India; 2000 people were killed and 200,000 injured in the
worst industrial disaster in history.' In I986, an explosion at the
Chernobyl nuclear reactor in the Soviet Ukraine caused the first offi-
cially reported radiation deaths in a nuclear power plant accident2
and released radioactive material that drifted as far as the United
States.3 Later that year, fire hoses used to combat a Swiss warehouse
blaze washed thirty tons of chemicals into the nearby Rhine River, in
an event decried as one of Europe's most serious environmental ca-
tastrophes.4 The Bhopal accident, the Chernobyl fire, and the Swiss
spill announced with apocalyptic fury that states cannot seal their
borders from environmental disasters.
Meanwhile, long-term global environmental menaces such as ozone
depletion,5 climate change,6 and acid rain7 pose new, potentially in-
1 See, e.g., Diamond, Union Carbide's Inquiry Indicates Errors Led to India Plant Disaster,
N.Y. Times, Mar. 2I, I985, at Ai, col. i; Hazarika, Gas Leak in India Kills at Least 410 in
City of Bhopal, N.Y. Times, Dec. 4, I984, at Ai, col. 6.
2 See Lee, 6 at Chernobyl Died of Radiation, Burns, Soviets Announce, Wash. Post, May
I3, I986, at Ai, col. 4. At least 3I people died within a few weeks as a direct result of the
accident, and the full effects of the accident on people, property, and the environment remain
difficult to assess. See Sands, Introduction, in CHERNOBYL: LAW AND COMMUNICATION 2 (P.
Sands ed. I988).
3 See, e.g., Sullivan, Fallout Found in U.S. Is Said to Pose No Risk, N.Y. Times, May
I3, I986, at A6, COI. 4; Schmemann, Delay Reported on Evacuation at Nuclear Site, N.Y.
Times, May 7, I986, at Ai, COI. 2.
4 See, e.g., Netter, Poison Silt Pulled out of Rhine, Chi. Tribune, Nov. i8, I986, ? i, at
6, COI. 4; Siegert, Death Watch over the Rhine, Chi. Tribune, Nov. ii, I986, ? I, at I2, COI.
4.
5 See Montreal Protocol on Substances That Deplete the Ozone Layer, opened for signature
Sept. i6, I987, 26 I.L.M. I54I [hereinafter Montreal Protocol] (entered into force Jan. I, I989)
(establishing specific obligations to limit and reduce the use of chlorofluorocarbons and perhaps
other chemicals that deplete the ozone layer). The Montreal Protocol was drafted as a supple-
ment to the Vienna Convention for the Protection of the Ozone Layer, opened for signature
Mar. 22, I985, 26 I.L.M. I5I6 (entered into force Sept. i, I988). Concluded under the auspices
of the United Nations Environment Programme (UNEP), the Vienna Convention established a
framework for international cooperation on research, monitoring, and information exchange on
the extent and the effects of ozone layer depletion; signatories to the convention pledged to take
steps to protect the environment from degradation of the ozone layer.
6 In I988 representatives from 30 states agreed to begin drafting a global warming treaty,
and plans call for its adoption at or before the I992 United Nations Conference on Environment
and Development in Brazil. See Chayes, Managing the Transition to a Global Warming Regime
or What to Do til the Treaty Comes, in GREENHOUSE WARMING: NEGOTIATING A GLOBAL
REGIME 6i, 6i (J. Mathews ed. I99I); UNEPIWMO Panelfrom 30 Countries to Work Toward
Global Warming Treaty, ii Int'l Env't Rep. (BNA) 644 (Dec. I4, I988).
7 See, e.g., Memorandum of Intent Between the United States and Canada Concerning
Transboundary Air Pollution, Aug. 5, I980, 32 U.S.T. 252I, T.I.A.S. No. 9856; Protocol to

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calculable dangers to human survival. The recent discovery of an

"ozone hole" in the stratosphere above Antarctica8 heightened concerns
about evidence linking the destruction of the ozone layer to increased
incidence of skin cancer and cataracts, suppression of the human
immune system, and crop destruction.9 Massive deforestation and the
continued release of industrial byproducts into the atmosphere have
led to predictions of dramatic global climate change10 and accom-
panying rises in sea levels, permanent inundation of coastal plains,
and widespread heat waves.11 Finally, acid rain is suspected of con-
taminating water supplies and fish with dangerous metals and of
posing grave threats to human health.'2
Faced with the enormity and urgency of such international envi-
ronmental problems, the world has experienced a political awakening.
Although environmental issues are not new to international relations,13
world leaders 'increasingly have moved environmental issues from the
periphery to the center of their political agendas. International con-
ferences and treaties regarding global warmingl4 and ozone depletion15
are but a few signs that the world has entered a "new age of envi-
ronmental diplomacy" in which environmental issues will share center
stage with "more traditional economic and military concerns."16 In-
deed, thousands of representatives of governments, environmental
the I1979 Convention on Long-Range Transboundary Air Pollution on the Reduction of Sulphur
Emissions or Their Transboundary Fluxes by at Least 30 Per Cent, July 8, i985, U.N. Doc.
ECE/EB.Air/I2, reprinted in 27 I.L.M. 707.
8 See R. BENEDICK, OZONE DIPLOMACY: NEW DIRECTIONS IN SAFEGUARDING THE PLANET
I18-20 ( I 99I).
9 See Benedick, Protecting the Ozone Layer, in PRESERVING THE GLOBAL ENVIRONMENT
II2, 113 (J. Mathews ed. I99I).
10 See Wirth, Climate Chaos, FOREIGN POL'Y, Spring 1989, at 3.
11 See id. at 7-9.
12 Acid rain consists in part of sulfur dioxide that is chemically transformed into sulfate
particles that mix with water in the air, liquefy, and become aerosols that can penetrate delicate
lung tissue with toxic metals and gases. See French, Clearing the Air, in STATE OF THE WORLD
I990, at 98, IOI (L. Brown ed. iggo).
13 For example, as early as 1927, the United States and Canada were embroiled in a dispute
over the damage that a private smelting operation in British Columbia had caused to crops in
the state of Washington. See Trail Smelter Case (U.S. v. Can.), 3 R. Int'l Arb. Awards 1911
(1938). Historically, states have also devoted considerable diplomatic energy to limiting pollution
of oceans and shared rivers. See, e.g., Convention for the Protection of the Rhine Against
Chemical Pollution, Dec. 3, I976, 1124 U.N.T.S. 375; Convention on the Prevention of Marine
Pollution by Dumping of Wastes and Other Matter, Dec. 29, I972, 26 U.S.T. 2403, T.I.A.S.
No. 8i65, 1046 U.N.T.S. I20 (entered into force Aug. 30, 1975); Convention for the Prevention
of Marine Pollution by Dumping from Ships and Aircraft, Feb. 15, 1972, 932 U.N.T.S. 3.
14 See supra note 6.
15 See Hunt, Conference Urges Faster Action on CFCs, Financial Times, Mar. 8, I989, at
24 (describing an international conference hosted by British Prime Minister Margaret Thatcher
regarding the reduction of chlorofluorocarbon use).
16 Brown, The Illusion of Progress, in STATE OF THE WORLD I99o, supra note 12, at 3, 13.

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groups, and businesses currently are preparing for the I992 United
Nations Conference on the Environment and Development, the largest
convocation of the world community on environmental matters to
date. 17
Paralleling these developments, international environmental law
has emerged as a distinct academic discipline. A growing number, of
commentators, diplomats, and practitioners are concentrating on
transboundary and global environmental issues, and in the last few
years many of the leading law schools in the United States have begun
to offer classes devoted to the study of legal responses to international
environmental problems.'8 This surge in scholarly attention heralds
a period of intense development of international environmental law.
The international environmental regime'9 is composed of custom-
ary law, treaties, institutions, and extraterritorial application of do-
mestic environmental law. In an attempt to use customary interna-
tional law to protect the environment, commentators have spent the
last two decades elaborating rules of state responsibility and liability
specifically designed to address transboundary pollution.20 States have
begun to build on this liability regime by developing international
agreements designed to prevent harmful environmental activity. Fur-
thermore, to develop explicit regulation to address special environ-
mental problems, states continue to experiment with different modes
of treaty creation such as the convention-protocol method,2' and to
search for new methods of treaty enforcement.22 Meanwhile, a pleth-
ora of intergovernmental organizations now monitor pollution and
regulate environmentally harmful behavior.23 Finally, frustrated by
the slow pace of public international law, scholars and litigants have
stepped up their calls for states with strong environmental laws to
extend unilaterally their jurisdiction to environmentally harmful activ-
ities occurring in other states.24
This Note assembles these recent developments in international
environmental law and assesses their potential for protecting the en-
vironment. Focusing on the different components of the emerging
international environmental regime, this Note questions whether and
17 See Conference on Environment and Development '92 - Preparatory Process, 20 ENVTL.

POL'Y & L. 72 (I990).
18 See Harvard Envtl. Law Soc'y, Survey of Environmental and Related Courses at Leadin
Law Schools (I990) (on file at Harvard Law School Library).
19 As used in this context, a regime consists of "norms, rules and procedures agreed to i
order to regulate an issue area." Haas, Why Collaborate? Issue Linkage and Internationa
Regimes, 32 WORLD POLITICS 357, 358 (I980).
20 See infra pp. I498-99.
21 See infra p. I528.
22 See infra pp. I56I-68, I573-76.
23 See infra pp. I582, I586-87.
24 See infra Part VI note 5.

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I490 HARVARD LAW REVIEW [Vol. 104:1484
to what degree international law and institutions can overcome two

fundamental obstacles to global environmental protection: states' re-
luctance to cede sovereignty and conflicting state interests. The Note
also suggests legal and political responses that address some of the
limitations on global environmental cooperation inherent in a world
of sovereign states. To the extent that the problems of state sover-
eignty and conflicting state interests arise in other contexts of inter-
national law, the themes in this Note may have wider application to
the general challenges facing international law.
Part II analyzes legal experts' continuing reliance on international
custom as a source of rules for assigning state liability in instances of
transboundary pollution. The codification of international custom for
rules governing state conduct necessarily falters on an irreconcilable
tension: unelaborated, the obligations are too vague to impose mean-
ingful restrictions on behavior; given specific content, the duties risk
positing norms too idealized to obtain the consent of states necessary
to an international environmental regime. The modern response to
the failure to develop an effective state liability regime has been the
codification of procedural duties of prior assessment and disclosure in
treaties and international charters. This strategy, however, replaces
substantive norms against transboundary pollution with procedural
obligations that require no curtailment of environmental harm. Thus,
customary international law remains at the periphery of any regime
designed to control extraterritorial pollution. Part II concludes that
legal analysis serves at best a hortatory purpose and fails to overcome
the divergence of states' interests in international environmental con-
trol.
Parts III and IV examine international treaties as a means of
preventing environmental harms. Part III discusses the creation of
international environmental agreements, especially global treaties such
as the Montreal Protocol for the protection of the ozone layer and the
current negotiations for a framework agreement on global climate
change. States have confronted the special problems that arise in the
context of environmental agreements, such as the need for quick action
despite scientific uncertainty and the difficulties inherent in managing
global commons, with different methods for reaching agreements. The
apparent success of the Montreal Protocol negotiations has generated
widespread enthusiasm for a convention-protocol approach. Part III
argues that this approach by itself will not produce effective agree-
ments for environmental harm that may become irreversible before
any protocols are established. Instead, especially in the current global
warming negotiations, states should augment the convention-protocol
approach with a supplementary regime in which states develop do-
mestic regulations to address environmental threats while they are
negotiating protocols.

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I99I] DEVELOPMENTS - INTERNATIONAL ENVIRONMENTAL LAW I49I
Part IV addresses the problems states confront in enforcing inter-

national environmental agreements. Many agreements are not en-
forceable because either states' obligations are so vague that violations
are ambiguous or no coercive mechanism exists to redress even clear
transgressions. States often are unwilling to sign more enforceable
environmental agreements because such agreements would impinge on
state sovereignty by limiting states' autonomy or discretion. Rather
than trying to construct coercive mechanisms, Part IV argues, states
should place greater reliance on international agencies. These agencies
can monitor treaty compliance and can also mobilize the publicity and
political pressure necessary to enhance treaty enforcement. Further,
by generally fostering an environmental ethic within state bureaucra-
cies, these agencies can encourage assent to and implementation of
international agreements.
Part V analyzes the role of international institutions in the creation
and enforcement of international environmental law. States have es-
tablished dozens of intergovernmental organizations for daily cooper-
ation on international environmental issues, but many observers have
questioned their effectiveness. Rejecting the popular notion that en-
vironmental problems can be addressed only by a centralized supra-
national authority, Part V argues that the effectiveness of intergov-
ernmental organizations flows from their credibility, which is primarily
a product of the perceived legitimacy of the processes these institutions
use to make decisions. Urging increased regularity and openness in
the decisionmaking processes of these institutions, Part V proposes the
adaptation of two useful models from United States environmental
law: the Administrative Procedure Act25 and the National Environ-
mental Policy Act.26
Finally, Part VI examines the emergence of extraterritorial envi-
ronmental regulation. Unlike public international law such as custom-
ary and treaty law, extraterritorial regulation does not attempt to
strengthen the environmental policies of states with lenient environ-
mental regimes. Rather, it seeks to subject activities within these
countries to the more stringent environmental standards of states with
stronger environmental regimes. Although states such as the United
States face increasing demands for the application of their environ-
mental regulation abroad and may have the power to engage in ex-
traterritorial environmental regulation, such regulation may conflict
with the economic development needs of other states. Part VI argues
that the doctrines United States courts use to balance United States
and foreign interests fail to resolve the tension between the environ-
25 5 U.S.C. ?? 55I-706 (I988).

26 42 U.S.C. ?? 432I-4370 (I988).

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I492 HARVARD LAW RE VIEW [Vol. 104:1484
ment and development and proposes an alternative method to mediate

such conflicts.
II. STATE LIABILITY AND PROCEDURAL NORMS
Pollution respects no jurisdictional boundaries. Air and water

carry dangerous substances from one nation to another. Such trans-
frontier pollution' can arise from a single accident in one state that
harms the environments of other states or from a continuous emission
of substances that affects the environments of other states. Faced
with pollution that knows no borders, legal analysts have resorted to
principles of international law, writ large, to develop a comprehensive
framework of environmental protection.2
Under classical principles of international law, the obligation to
prevent transnational pollution falls solely upon the state.3 Attempt-
ing to address pollution committed by private parties, international
legal analysts have developed the doctrine of state responsibility to
attribute activities of private citizens to states. Drawing upon inter-
national custom as the primary source of law, publicists4 have sought
to develop an international liability scheme to regulate transboundary
pollution5 and have codified rules of customary international law to
clarify the legal duty upon states to prevent serious transnational
environmental harm.
Efforts to develop an effective international liability scheme, how-
ever, have failed utterly. Publicists have presupposed that extrapo-
lations from rules of customary international law coincide with the
shared interests of the individual states upon whose participation a
liability regime depends. Yet a regime constructed from custom ob-
scures - without resolving - the differences between the conflicting
values states assign to environmental protection. The codification of
general customary duties founders upon this quandary of legitimacy:
1 One commentator defines transfrontier pollution as those "disturbances that originate in

one country, are transmitted through a shared natural resource and take effect in another."
McCaffrey, Pollution of Shared Natural Resources, 7I PRoc. AM. SOC'Y INT'L L. 56, 56 (I977).
This Part uses the terms "transfrontier," "transboundary," and "transnational" interchangeably.
2 See, e.g., J. BRUNPE, ACID RAIN AND OZONE LAYER DEPLETION 3 (i988).
3 See Wetstone & Rosencranz, Transboundary Air Pollution: The Search for an International
Response, 8 HARV. ENVTL. L. REv. 89, I20 (I984).
4 A "publicist" is "one versed in, or writing upon, . . international law." BLACK'S LAW
DICTIONARY I229 (6th ed. I990). Publicists often work within international organizations ded-
icated to the codification of international law. See, e.g., McCaffrey, The Work of the Interna-
tional Law Commission Relating to Transfrontier Environmental Harm, 20 INT'L L. & POL.
7I5, 7I5 (I988) (describing the mandate of the International Law Commission (ILC) of the
United Nations, a group of 34 international legal experts, as the "codification and progressive
development of international law").

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as these duties are furnished with more determinate content, they

become more controversial, and as a result, many states refuse to bind
themselves to the commands of the regime. Without codification,
however, the vague customary duties communicate no normative ex-
pectations or specific commands, and states can claim that almost any
conduct comports with international law. The codification of stan-
dards of care thus falters over the trade-off between infusing deter-
minate but inevitably controversial content into general norms and
ensuring broad international consensus through vague generality.
Faced with the failure to develop an operational liability regime,
many publicists have attempted to broaden the scope of state respon-
sibility.6 Unlike those traditional commentators who conceived the
doctrine of state responsibility as applying after transboundary envi-
ronmental injury has taken place,7 modern analysts have sought to
impose procedural obligations upon states - such as the duty to assess
potential environmental harm to another state from domestic activity
and the duty to inform other nations of activity threatening transfron-
tier environmental injury8 - to apply the doctrine of state responsi-
bility before transnational pollution has occurred. Modern interna-
tional legal scholars believe that the theoretical imposition of liability
on states after damage has taken place fosters confrontation, under-
mines cooperation and fails to prevent the injury in the first place.9
The front-loading of procedural requirements, publicists argue, en-
ables states to address transnational pollution preemptively through a
"dispute-avoidance" system of mutual cooperation.10
This proliferation of procedural requirements, however, reflects a
misunderstanding of the true defect in the current international lia-
bility regime: the regime has not structured incentives that make the
benefits of membership outweigh the benefits of noncompliance in any
single instance. The move toward procedural duties provides only a
superficial gloss of international consensus. Procedural duties merely
highlight the costs and benefits of a proposed activity and leave un-
answered the critical normative question of how much weight state
decisionmakers should place on the costs and benefits thus exposed.
State compliance with procedures bears little relation to curtailing
transboundary pollution, and by thus emphasizing form over sub-
stance, international environmental law has veered toward irrele-
vance.
6 See, e.g., A. SPRINGER, THE INTERNATIONAL LAW OF POLLUTION I42 (I983).

7 One authority notes that "state responsibility comes into play when damage has already
occurred" and that "[a]t that stage it aims at the victim's compensation." J. BRUNEE, supra
note 2, at II2; see also Wetstone & Rosencranz, supra note 3, at I23 (noting that "[d]isputes
that bring international law into play tend to arise only after damage has occurred").
8 See infra pp. I5 I2-20.
9 See infra pp. I5II-I2.
10 See infra p. I5I2.

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I494 HARVARD LAW REVIEW [Vol. I04:1484
This Part traces these developments and argues that legal analysis
the postulation of abstract norms of behavior and the derivation
of rights and duties from those norms - plays at most a marginal
role in the development of future international regimes for environ-
mental protection. Future environmental regimes can succeed only
by advancing a common locus of states' interests. The challenge for
global environmental management rests in identifying these interests
and constructing a system based on them. Political realities suggest
that attempts to develop broad principles of international environ-
mental "law" must remain purely academic inquiries.
A. State Attribution and Breach of Duty
To invoke state responsibility for extraterritorial pollution, the

complaining state must first establish that the offending conduct is
attributable to the defendant state.11 Next, the victim state must
prove three further elements: breach of an international duty, a causal
relationship between the conduct and the injury, and material dam-
age. 12 Because the causation and material damage requirements have
also vexed many domestic nuisance systems,13 this section focuses on
the efforts by publicists and world organizations to develop the doc-
trine of state attribution and to give content to a state's duty to prevent
transnational pollution.
i. State Attribution. - International jurisprudence has established
that acts committed by a state's organs or agents in violation of an
international obligation may be attributed to the state.'4 The position
of the state organ within the governmental structure does not alter
the extent to which the conduct of the organ may be imputed to
the state. 15 For example, states may be held responsible for the
conduct or omissions of their legislative bodies or their courts.16
11 See Anzilotti, La responsabilite internationale des etats d raison des dommages soufferts
par des etrangers, I3 REVUE GENERALE DE DROIT INTERNATIONAL PUBLIC 5, 29I (I906).
12 See Handl, Territorial Sovereignty and the Problem of Transnational Pollution, 69 AM.
J. INT'L L. 50, 75 (I975).
13 See, e.g., R. DIAS & B. MARKESINIS, TORT LAW I09 (2d ed. I989).
14 See Draft Articles on State Responsibility Adopted by the International Law Commission
on First Reading, art. 5, [I980] 2(2) Y.B. INT'L L. COMM'N 30, 3I, U.N. Doc. A/CN.4/SER.A
ig8o/Add.i [hereinafter Draft Articles]. In I929 one commentator noted that "[t]he activity of
the State is in fact the activity of the individuals duly authorized by the State.... The activity
of the agents of the state being the activity of the state, the violation that they commit constitute
therefore a violation committed by the State itself." D. ANZILOTTI, COURS DE DROIT INTER
NATIONAL 497 (6th ed. I929) (author's translation).
15 See Draft Articles, supra note I4, art. 6, at 3I.
16 See Case concerning German interests in Polish Upper Silesia (Ger. v. Pol.), I925 P.C.I.J.
(ser. A) No. 6, at 5; M. ALACANTARA, RESPONSABILIDADE DO ESTADO POR ATOs LEGISLATIVOS
E JURISDICIONAIS 54-70 (I988). One commentator has explained that "[t]he State . . . may be
held responsible either for positive acts of legislation in contradiction to international law, or

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Even ultra vires acts17 may be attributed to the state,18

as long as the state organ has acted with the state's apparent
authority. 19
Although international law attributes the conduct of police, legis-
latures, and administrative officials to the state, these state organs
and representatives rarely have a hand in producing transboundary
pollution. State-owned commercial entities, however, can harm the
environment beyond national jurisdiction. But scholars have given
scant attention to the question whether such conduct is attributable
to the state, and the law remains inchoate on this point. One scholar
suggests that "[w]hen the state elects to act in a central role in a
commercial enterprise, through organization, ownership, capitaliza-
tion, receipt of profits, administration and similar involvements, that
action dictates that the entity be treated, at least for purposes of
international attribution, as a 'public' representative of the state."20
If the conduct of private parties is in question, principles of inter-
national jurisprudence require states to exercise "due diligence" to
prevent conduct that, if performed by the state, would breach its
"primary" international duties.21 Thus, a state has an obligation to
take all reasonable measures to prevent substantial transboundary
for the failure to provide legislation necessary in order to fulfill its international obligations."
C. EAGLETON, THE RESPONSIBILITY OF STATES IN INTERNATIONAL LAW 66 (1928); see also
SS Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 9, at 24 (Judgment of Sept. 7) (holding the
state responsible for judicial breaches of international obligations). The actions of subsidiary
governments within a state may also be attributed to the state. See, e.g., Pellat Case (Fr. v.
Mex.), 5 R. Int'l Arb. Awards 536 (1929).
17 "Ultra vires" conduct here refers to activities "beyond the scope or in excess of legal power
or authority" vested in a state organ or representative. WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY 2480 (I986).
18 See Draft Articles, supra note 14, art. io, at 31. One commentator noted in 1928 that
"[miodern writers . . . are in practically complete agreement that the state is responsible for th
acts of its agents, even in excess of their powers." C. EAGLETON, supra note I6, at 55 n.4i.
19 See Caire (Fr. v. Mex.), 5 R. Int'l Arb. Awards 5i6 (1929). The Caire tribunal proposed
a two-pronged test for the attribution of ultra vires conduct to the state: the state agents or
representatives must have acted, at a minimum, with the apparent authority of the state and
the power or means used must have had an official character. The tribunal held that "it is
necessary that they acted at least apparently as competent functionaries or organs or that, in
acting, they availed themselves of the powers or means corresponding to their official capacity."
Id. at 530 (author's translation).
20 B. SMITH, STATE RESPONSIBILITY AND THE MARINE ENVIRONMENT 30 (I988).
21 See C. EAGLETON, supra note I6, at 213 (noting that "the extent of the obligation put
upon the state is usually merely to use a proper diligence in preventing acts of individuals or
in redressing them"). The Environment Committee of the OECD has noted that there exists a
"custom-based rule of due diligence imposed on all States in order that activities carried out
within their jurisdiction do not cause damage to the environment of other states." OECD,
REPORT BY THE ENVIRONMENT COMMITTEE, RESPONSIBILITY AND LIABILITY OF STATES IN
RELATION TO TRANSFRONTIER POLLUTION 4 (I984) (emphasis added). Arbitration panels have
also supported the due diligence standard. See, e.g., Home Frontier and Foreign Missionary
Society (U.S. v. U.K.), 6 R. Int'l Arb. Awards 42 (1920).

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pollution.22 For example, when a state fails to enact adequate envi-

ronmental regulations, the polluting conduct can be attributed to that
state, and the state breaches its international duties.23 If a state
exercises due care but private parties within its jurisdiction or control
nonetheless inflict substantial harm upon the environment of another
state, the source state must take all necessary steps to punish the
offenders.24 Otherwise, the polluting conduct may be attributed to
the state.25
2. Breach of Duty: Sic Utere. - Even if the conduct in question
can be attributed to the source state, the imposition of state respon-
sibility requires the breach of an international obligation. For trans-
boundary pollution, responsibility attaches to conduct attributable to
the state that violates the principle of sic utere tuo ut alienum non
laedas.26
Under the principle of sic utere, a state has a duty to refrain from
acts that would cause injury to persons or property located in the
territory of another state.27 The I938 Trail Smelter28 arbitration in-
troduced the principle into international environmental jurispru-
dence.29 In Trail Smelter, the tribunal held Canada liable for the
damage that a private smelting operation in British Columbia had
caused to property in the United States but reserved judgment on an
injunction against future pollution. After drafting a pollution abate-
ment program in the first phase of the arbitration, the tribunal issued
an injunction against further operations and stated in dicta:
Under the principles of international law, . . . no State has the right

to use or permit the use of its territory in such a manner as to cause
[environmental] injury . . . in or to the territory of another or the
22 See Dupuy, International Liability for Transfrontier Pollution, in TRENDS IN ENVIRON-

MENTAL POLICY AND LAW 363, 369 (M. Bothe ed. I980). Dupuy points out that "the use of
the concept of 'due diligence' concerns unlawful omissions by a State" and that due diligence
"is the diligence to be expected from a 'good government', i.e., from a government mindful of
its international obligations." Id. Numerous treaties specify the obligation of the state to prevent
actors under its jurisdiction from causing substantial environmental injury outside national
jurisdiction and condition claims for compensation on the failure of the state to take the requisite
action. See A. SPRINGER, supra note 6, at 128.
23 See J. LAMMERS, POLLUTION OF INTERNATIONAL WATERCOURSES 588 (I984).
24 See, e.g., Chase Case (U.S. v. Mex.), 4 R. Int'l Arb. Awards 337 (1928); R. WALLACE,
INTERNATIONAL LAW I58 (I986).
25 See J. LAMMERS, supra note 23, at 588 (noting that "[j]udicial organs ... may be negligent
by not properly punishing the offenders of the water pollution legislation and ordinances").
26 This principle dictates that "one should use his own property in such a manner as not to
injure that of another." BLACK'S LAW DICTIONARY, supra note 4, at 1380.
27 See C. EAGLETON, supra note I6, at 8o.
28 Trail Smelter (U.S. v. Can.), 3 R. Int'l Arb. Awards 1905 (1938) (initial decision), further
proceedings, 3 R. Int'l Arb. Awards 1938 (I94I) (final decision).
29 See d'Arge & Kneese, State Liability for International Environmental Degradation: An
Economic Perspective, 20 NAT. RESOURCES J. 427, 429-30 (I980).

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properties of persons therein, when the case is of serious consequence

and the injury is established by clear and convincing evidence.30
A few subsequent decisions by international courts and tribunals

have ratified the sic utere principle in international law.31 Interna-
tional legal scholars have similarly asserted that transfrontier pollution
violates principles of customary international law.32 Indeed, the I987
Restatement (Third) of the Foreign Relations Law, whose "principles"
for environmental law "are rooted in customary international law,"33
specifies that a state must take all necessary measures, to the extent
possible, to prevent activities within its jurisdiction or control from
causing significant injury to the environment outside its jurisdiction.34
The Restatement also codifies the state's responsibility "for any signif-
icant injury, resulting from such violation, to the environment of areas
beyond the limits of national jurisdiction."35 Moreover, states have
ratified international treaties and declarations reaffirming the obliga-
tion to prevent significant transboundary injury. For example, Prin-
ciple 2I of the Stockholm Declaration on the Human Environment of
I972,36 recognized today as the codification of a rule of customary
international law,37 imposes upon states a "responsibility to ensure
that activities within their jurisdiction and control do not cause [sig-
30 Trail Smelter, 3 R. Int'l Arb. Awards at I965 (final decision). Commentators have since
regarded this statement as an articulation of a rule of customary international law. See, e.g.,
P. SANDS, CHERNOBYL: LAW AND COMMUNICATION II (I988).
31 See, e.g., Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Judgment of Apr. 9) (affirming
"every State's obligation not to allow knowingly its territory to be used for acts contrary to the
rights of other States"). Many commentators interpret Coru Channel as establishing a principle
of state responsibility for transfrontier pollution. See, e.g., J. BARROS & D. JOHNSTON, THE
INTERNATIONAL LAW OF POLLUTION 75 (1974).
32 See, e.g., Carella, Casi di inquinamento marino e comportamento degli stati, in DIRITTO
INTERNAZIONALE E PROTEZIONE DELL'AMBIENTE MARINO 323, 337 (V. Starace ed. I983).
33 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES
?? 60I-604 introductory note (I987).
34 See id. ? 6oi(i). Section 6oi(i) states:
A state is obligated to take such measures as may be necessary, to the extent practicable
under the circumstances, to ensure that activities within its jurisdiction or control
(a) conform to generally accepted international rules and standards for the prevention,
reduction, and control of injury to the environment of another state or of areas beyond
the limits of national jurisdiction; and
(b) are conducted so as not to cause significant injury to the environment of another
state or of areas beyond the limits of national jurisdiction.
Id.
35 Id. ? 60I(2)(b). Section 601(3) underlines the responsibility of states for transboundary
environmental harm: "A state is responsible for any significant injury, resulting from a violation
of its obligations under Subsection (I), to the environment of another state or to its property,
or to persons or property within that state's territory or under its jurisdiction or control." Id.
? 60I(3).
36 Stockholm Declaration on the Human Environment, U.N. Doc. A/CONF.48/i4 and
Corr.i, reprinted in II I.L.M. 1416 (1972) [hereinafter Stockholm Declaration].
37 See A. Kiss, DROIT INTERNATIONAL DE L'ENVIRONNEMENT 8i (I989).

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nificant] damage to the environment of other states" or the environ-

ment of any area beyond their jurisdiction.38
B. The Stillborn Regime of International Liability
The last two decades have witnessed the proliferation of scholarly

literature on international liability for transnational pollution.39 Schol-
ars have treated the subject as if an actual regime exists for adjudi-
cating disputes and imposing liability upon a state for activities within
its jurisdiction or control that injure the environment of another
state.40 Meanwhile, the International Law Commission (ILC) of the
United Nations41 has set its thirty-four experts to the task of codifying
doctrines of state responsibility and international liability from cus-
tomary international law.42 Other international organizations, such
as the Organisation for Economic Cooperation and Development
(OECD), the United Nations Environment Programme (UNEP), and
the World Commission on Environment and Development (WCED),
have similarly extrapolated rules of liability for states from customary
38 Stockholm Declaration, supra note 36, at 72, reprinted in ii I.L.M. at I420. The
Stockholm Declaration is not binding upon the signatories. Article I94(2) of the Law of the Sea
Convention, a binding treaty, echoes this obligation:
States shall take all measures necessary to ensure that activities under their jurisdiction
or control are so conducted as not to cause damage by pollution to other States and their
environment, and that pollution arising from incidents or activities under their jurisdiction
or control does not spread beyond the areas where they exercise sovereign rights in
accordance with this Convention.
United Nations Convention on the Law of the Sea, opened for signature Dec. 20, I982, U.N.
Doc. A/CONF.62/I22, art. I94(2), reprinted in 2I I.L.M. I26I, I308 [hereinafter Law of the
Sea Convention].
39 See J. SCHNEIDER, WORLD PUBLIC ORDER OF THE ENVIRONMENT I77 (I979) (noting that
"dispute settlement in general and environmental dispute settlement in particular are very
popular topics among both practitioners and scholars"); Bothe, International Legal Problems of
Industrial Siting in Border Areas and National Environmental Policies, in TRANSFRONTIER
POLLUTION AND THE ROLE OF STATES 79, 93 n.I (OECD ed. I98I) (observing that "[t]he legal
problems of transfrontier pollution have given rise to a substantial body of literature").
40 See, e.g., d'Arge & Kneese, supra note 29; Gaines, International Principles for Transna-
tional Environmental Liability: Can Developments in Municipal Law Help Break the Impasse?,
30 HARV. INT'L L.J. 3II (I989); Handl, State Liability for Accidental Transnational Environ-
mental Damage by Private Persons, 74 AM. J. INT'L L. 525 (I980).
41 The ILC was established in I947 to codify and develop international law progressively.
See I. SINCLAIR, THE INTERNATIONAL LAW COMMISSION I20 (I987).
42 See McCaffrey, supra note 4, at 7I5-I6. In I978, the ILC appointed a special rapporteur
on "international liability for injurious consequences arising out of acts not prohibited by
international law." Report of the Working Committee on International Liability for Injurious
Consequences Arising Out of Acts not Prohibted by International Law, [I978] 2(2) Y.B. INT'L
L. COMM'N I50, U.N. Doc. A/CN.4/SER.A/I978/Add.I. The ILC has since published numerous
reports on international liability. See, e.g., Barboza, Second Report on International Liability
for Injurious Consequences Arising Out of Acts not Prohibited by International Law, [I986] 2(I)
Y.B. INT'L L. COMM'N I45, U.N. Doc. A/CN.4/SER.A/I986/Add.I.

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practices, general principles of law, treaties, charters, and interna-

tional judicial decisions.43
Notwithstanding the close attention that the international legal
community has given the issue of international liability for transfron-
tier pollution, no operational system for adjudicating liability has
emerged. The International Court of Justice (ICJ) has heard only one
dispute of note, the Nuclear Tests case,44 and international arbitration
has entertained only a few notable cases, principally the Trail Smelter,
Lac Lanoux,45 and Gut Dam46 arbitrations. No state even brought
suit against the Soviet Union following the I985 Chernobyl accident,
although more than twenty states registered significant increases in
radioactivity levels.47 Moreover, no downstream states sought any
remedy under international law against Switzerland for the damages
caused by the I986 Sandoz spill of toxic chemicals into the Rhine
River, despite possible Swiss violations of a treaty that provided for
arbitration of all disputes.48 Publicists' efforts at codifying standards
43 See, e.g., B. LAUSCHE, UNEP ENVIRONMENTAL LAW IN-DEPTH REVIEW I98I, at 14-
15 (I982); OECD, COMPENSATION FOR POLLUTION DAMAGE (I98I); WCED, OUR COMMON
FUTURE 348-5I (I987) [hereinafter WCED]. The OECD Council recently instructed the OECD
Environment Committee to prepare "a programme of work designed to elaborate further"
principles for transfrontier pollution. OECD Recommendation C(74)224, reprinted in OECD,
OECD AND THE ENVIRONMENT I42-43 (I986).
After its creation in 1972, UNEP dedicated its first decade primarily to the task of developing
the law of state liability for transboundary harm. See Petsonk, The Role of the United Nations
Environment Programme (UNEP) in the Development of International Environmental Law, 5
AM. U.J. INT'L L. & POL'Y 351, 362 (I990).
44 See Nuclear Tests (Austl. v. Fr.), I974 I.C.J. 253 (Judgment of Dec. 20); (N.Z. v. Fr.),
I974 I.C.J. 457 (Judgment of Dec. 20). The ICJ has heard a few cases dealing tangentially
with transboundary pollution. See, e.g., Gulf of Maine (U.S. v. Can.), I984 I.C.J. 246 (Judg-
ment of Oct. I2); Fisheries Jurisdiction (U.K. and N. Ir. v. Ice.), 1974 I.C.J. 3 (Judgment of
July 25); (W. Ger. v. Ice.), 1974 I.C.J. I75 (Judgment of July 25).
45 Lac Lanoux (Spain v. Fr.), 12 R. Int'l Arb. Awards 28I (I956).
46 Gut Dam Claims (Can. v. U.S.), 8 I.L.M. ii8 (I969).
47 See P. SANDS, supra note 30, at i. Sands describes in detail the financial costs and health
effects of the contamination. See id. at 2.
48 Switzerland violated article 7 of the Convention for the Protection of the Rhine Against
Chemical Pollution, openedfor signature Dec. 3, I976, II24 U.N.T.S. 375, by failing to ensure
by all necessary legislative and administrative means that the storage of hazardous substances
would not pose any danger to the Rhine. See id., art. 7., II24 U.N.T.S. at 409. For a
discussion of how standard administrative practice in Switzerland allowed for the negligent
storage of such substances near the Rhine, see Rest, The Sandoz Blaze and the Pollution of the
Rhine in Regard to Public International Law, Private International Law and National Liability
Issues, I MILIEU AANSPRAKELIJKHEID 59, 6o (I987). Article I5 of the Convention for the
Protection of the Rhine, II24 U.N.T.S. at 4II, provides for arbitration between signatories in
the event of a dispute over the interpretation or implementation of the Convention. See id.
No nation sought compensation from Switzerland through arbitration or even negotiation. See
Note, The Sandoz Spill: The Failure of International Law to Protect the Rhine from Pollution,
i6 ECOLOGY L.Q. 443, 443 (I989). Sandoz has, however, agreed to pay compensation to victims.
See id. at 450.

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of conduct notwithstanding, international liability remains an empty

abstraction.
Moreover, the scant international environmental case law that does
exist possesses little precedential value because the cases are decided
not on environmental liability, grounds but rather on narrow mootness
or treaty grounds. Thus, neither scholars nor international judges can
legitimately rely upon these cases to generate more specific liability
rules. In the Nuclear Tests cases, the ICJ issued interim orders in-
structing France, which had refused to enter an appearance before
the Court, to desist from nuclear testing that would deposit radioactive
fallout on Australian or New Zealand territory.49 In its final judg-
ment, however, the ICJ reasoned that the French government's public
pledges to cease testing rendered moot the international environmental
claim raised by Australia and New Zealand.50 In the Lac Lanoux
arbitration, the tribunal rejected a Spanish claim that the French
diversion of water from a French lake into a hydroelectric system
affected Spanish water use.51 The tribunal was primarily concerned
with interpreting treaty obligations requiring the parties to reach
agreement regarding activity interfering with either state's use of Lake
Lanoux or the Carol River.52 The Gut Dam tribunal similarly based
liability on an indemnification agreement that Canada had granted in
exchange for the United States' consent to construction of a dam on
the two nations' border.53 Even the Trail Smelter arbitration, her-
alded as "the locus classicus of international legal principles on trans-
national pollution,"54 has limited precedential value, because the tri-
49 See Nuclear Tests (Austl. v. Fr.), I973 I.C.J. 99, io6 (Interim Order of June 22); (N.Z.
v. Fr.), I973 I.C.J. 135, I42 (Interim Order of June 22).
50 See Nuclear Tests (Austl. v. Fr.), I974 I.C.J. 253, 267-72 (Judgment of Dec. 20); (N.Z.
v. Fr.), I974 I.C.J. 457, 472-478 (Judgment of Dec. 20); A. Kiss, supra note 37, at 77. Kiss
adds that "[i]t is . . . difficult to consider this case as constituting a jurisprudential precedent
that would demonstrate the existence of a specific rule of international law prohibiting trans-
frontier pollution." Id. (author's translation).
51 Lac Lanoux (Sp. v. Fr.), 12 R. Int'l Arb. Awards 28I, 3I7 (I956).
52 See id. at 300-05; see also I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW
271-72 (3d ed. 1979) (observing that the tribunal's decision did not rest on customary interna-
tional law).
53 Gut Dam Claims (Can. v. U.S.), 8 I.L.M. 114, 121 (I969). One scholar notes that the
Gut Dam tribunal "was not called upon to pronounce either on Canada's liability in principle
or on the standard of liability to be applied" but rather had to accomplish "the much more
limited task of arbitrating damages." Handl, supra note 40, at 538. Another commentator
observes that in Gut Dam the tribunal confined its inquiry to the causal link between the damage
and the construction of the dam. See L. DfAz, RESPONSABILIDAD DEL ESTADO Y CONTAMI-
NACI6N 89 (I982).
54 Handl, Territorial Sovereignty and the Problem of Transnational Pollution, 69 AM. J.
INT'L L. 50, 6o (I975). One commentator observes that "international lawyers continue to
extrapolate principles from this venerable single precedent, like good generals rehearsing the
wars of yesteryear." Sand, International Cooperation: The Environmental Experience, in PRE-
SERVING THE GLOBAL ENVIRONMENT 236, 269 (J. Mathews ed. I99I).

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bunal determined Canadian responsibility from the terms of a

compromis55 reached between the two nations and never considered
whether Canada's conduct violated rules of customary international
law.56
The scarcity of noteworthy decisions and their limited precedential
value have stifled doctrinal development and rendered an embryonic
liability system unable to communicate expectations about the conse-
quences of action or inaction to prospective polluting states. The
dearth of case law deprives the principle of sic utere of the specificity
that applications to particular instances of transboundary pollution
would arguably furnish it. Instead, sic utere remains an abstraction,
an empty concept that commentators hope to fill with substantive
content, preferably content bearing the imprimatur of the United
Nations or some other international organization.
Yet the illusory nature of liability for transboundary environmental
harm hardly stems from a simple failure to develop specific content
for the principle of sic utere. Rather, the lack of case law reflects the
refusal of states to countenance even the partial relinquishment of
sovereignty that submission to binding third-party adjudication would
entail.57 States will not submit to such adjudication unless they have
already entered into a binding treaty entitling one party to seek redress
in an international tribunal - an exceedingly rare occurrence58 -or
55 See Trail Smelter (U.S. v. Can.), 3 R. Int'l Arb. Awards 1938, I938 (final decision) (I94I).
For international arbitration, the compromis is the statute outlining the stipulations of the parties
as to the subject of the dispute, the powers of the tribunal, and the procedures to be followed.
See J. SCHNEIDER, supra note 39, at I84.
56 See P. Dupuy, LA RESPONSABILITE INTERNATIONALE DES ETATS POUR LES DOMMAGES
D'ORIGINE TECHNOLOGIQUE ET INDUSTRIELLE i86 (1976); Handl, Balancing of Interests and
International Liability for the Pollution of International Watercourses, I3 CAN. Y.B. INT'L L.
156, I67-68 (i975).
57 See, e.g., T. O'RIORDAN, ENVIRONMENTALISM 294 (2d ed. I98I) (identifying the "reluc-
tance of states to relinquish or to appear to relinquish their territorial sovereignty" as the "chief
barrier" to effective international institutions of environmental protection). The jurisdiction of
any international tribunal over an environmental dispute between two or more states requires
the consent of all parties. See, e.g., Eastern Carelia (Fin. v. USSR), 1923 P.C.I.J. (ser. B) No.
5, at 27 (July 23); Statute of the International Court of Justice, June 26, 1945, art. 36, 59 Stat.
1031, 1042, T.S. No. 993, at 30, 3 Bevans 1153, ii62 [hereinafter ICJ Statute].
58 Although many environmental accords encourage signatories to submit their disputes to
the ICJ, of the principal antipollution treaties only the 1954 International Convention for the
Prevention of Pollution of the Sea by Oil, May 12, 1954, 12 U.S.T. 2989, T.S. No. 56, 327
U.N.T.S. 3, creates an explicit duty to do so. See A. SPRINGER, supra note 6, at 157. According
to two international legal scholars:
In most existing environmental agreements, the dispute settlement provision consists solely
of a stipulation for voluntary arbitration or reference to the International Court of Justice.
It seems safe to assume that . . . these provisions will seldom be invoked. The charac-
teristic distaste of states for judicial settlement is likely to prevail in future international
environmental regimes.
Chayes & Chayes, Adjustment and Compliance Processes in International Regulatory Regimes,
in PRESERVING THE GLOBAL ENVIRONMENT, supra note 54, at 280, 287.

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unless they believe beforehand that they will prevail. In particular,

states refuse to yield sovereign decisionmaking to independent judicial
institutions when "vital interests" are at stake. France in the Nuclear
Tests cases refused to enter an appearance before the ICJ on military
grounds.59 The United States' statement in a I972 United Nations
General Assembly survey of attitudes toward the ICJ explains the
hurdles that international adjudication must clear: "Cases of secondary
importance to the vital interests of States are often considered not
worth the expenditure of time and money, and cases which do affect
those vital interests are regarded as too important to entrust to any
third party."60
International adjudicatory institutions, such as the ICJ, exacerbate
their impotence by maintaining restrictive standing requirements.
Only states may appear as parties before the ICJ.61 Consequently,
nongovernmental organizations and individuals, who may be the most
zealous enforcers of environmental norms, must rely on their national
governments to espouse their claims.62 For political or economic rea-
sons, however, states are often unwilling to take up these claims.63
Moreover, a state must demonstrate injury to a legally protected
59 See DuPuy, L'Affaire des essais nucleaires francais et le contentieux de la responsabilite

internationale publique, 20 GER. Y.B. INT'L L. 375, 376 (I977). The nonappearance may have
even served to benefit France. One scholar notes that the final decision in Nuclear Tests of the
ICJ "was clearly in favour of France, in spite of - or maybe even in consequence of - the
fact that no pleadings were filed by the French government, it was not represented at the oral
proceedings, and no formal submissions were made by it to the Court." J. SCHNEIDER, supra
note 39, at I90.
60 Review of the Role of the International Court of Justice, Report of the Secretary General
U.N. Doc. A/8382, para. 46, at 20 (1972).
61 See ICJ Statute, supra note 57, art. 34, at 1042, T.S. No. 993, at 29, 3 Bevans at II62;
L. CALDWELL, INTERNATIONAL ENVIRONMENTAL POLICY 91 (I984).
62 One commentator notes that "international law, as presently conceived, does not provide
an alternative to the state acting as international attorney-general." Sands, The Environment,
Community and International Law, 30 HARV. INT'L L.J. 393, 397 (1989). Domestic environ-
mental law, by contrast, often relies on private suits by interested individuals and groups. See
J. MILLER, CITIZEN SUITS: PRIVATE ENFORCEMENT OF FEDERAL POLLUTION CONTROL LAWS
4 (I987).
63 Some pollution source states may be reluctant to espouse claims because they may, on
other occasions, assume the role of polluter. See Sands, supra note 62, at 406 (noting that
"outstanding disputes regarding acid rain in Scandinavia" likely discouraged the United Kingdom
from demanding reparations from the Soviet Union for damages caused by the Chernobyl
disaster); Note, supra note 48, at 470 (suggesting that West Germany refrained from pursuing
international legal remedies against Switzerland for the Sandoz spill because it "has been
responsible for at least as many toxic spills as Switzerland"). State espousal of claims may also
complicate a nation's foreign policy. See McCaffrey, Trans-Boundary Pollution Injuries: Juris-
dictional Considerations in Private Litigation Between Canada and the United States, 3 CAL.
W.L. REV. 191, 191 (1972) (suggesting that by encouraging governments to invoke international
process for transfrontier environmental damage, international adjudication risks undermining
"harmony among nations").

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I99I] DEVELOPMENTS - INTERNATIONAL ENVIRONMENTAL LAW 1503
interest to satisfy standing requirements under international law.64

When shared resources and global "commons" suffer environmental
harm,65 however, no individual state has standing to sue the pollution
source state.66 Admittedly, the actio popularis doctrine, under which
one state may vindicate the rights of the entire world community for
damage to a common resource,67 has begun to gain support,68 but the
ICJ has refrained from adopting this doctrine to broaden standing.69
Despite the difficulties of restrictive standing and states' reluctance
to submit to international adjudication, many legal scholars still insist
that an international adjudicative regime could settle disputes involv-
ing transfrontier pollution.70 States qua sovereigns have certain in-
terests - often explained in terms of reciprocity or collective action
- in participating in international regimes such as strategic alliances,
trade agreements, and arms control treaties. Thus, states often will-
ingly surrender partial sovereignty in exchange for membership in
such a regime. Sovereignty, therefore, is not an absolute bar to the
creation of an international liability regime, but rather a value that
can potentially be exchanged for a competing value.
64 See D. ANZILOTTI, TEORIA GENERALE DELLA RESPONSABILITA DELLO STATO NEL DIRITTO
INTERNAZIONALE 96 (1902); A. SPRINGER, supra note 6, at 158.
65 In his landmark article The Tragedy of the Commons, Garrett Hardin describes the
vulnerability of resources held in common to destructive exploitation. See Hardin, The Tragedy
of the Commons, I62 SCIENCE 1243 (I968). Marine pollution and ozone depletion exemplify the
pollution of the global "commons." See, e.g., WCED, supra note 43, at 261-86.
66 One commentator laments that when "harm is inflicted upon the environment of an area
beyond all territorial jurisdiction - the high seas and marine depths, international air space,
the cosmos, Antarctica - no state may bring a claim on behalf of humanity which is the real
victim of the environmental injury." A. Kiss, supra note 37, at iO5 (author's translation).
67 See Makarewicz, La protection internationale du droit a l'environnement, in ENVIRONNE-
MENT ET DROIT DE L'HOMME 77, 87 (P. Kromarek ed. I986).
68 See A. SPRINGER, supra note 6, at 158. The ICJ in Barcelona Traction Light & Power
Co. (Belg.- v. Spain), 1970 I.C.J. 4, recognized the existence of certain obligations owed to the
world community of states. See id. at 32 (Judgment of Feb. 5).
69 In the South West Africa Case (Ethiopia v. S. Afr.; Liberia v. S. Afr.), 1966 I.C.J. 4
(Judgment of July i8) (Second Phase), the ICJ held that no state had standing to assert the
responsibility of South Africa for violations of its obligations to the community as a UN
Mandatory. See id. at 47. According to the ICJ, the doctrine of actio popularis "is not known
to international law as it stands at present." Id.
70 See, e.g., J. SCHNEIDER, supra note 39, at 177; Note, Economic Implications of European
Transfrontier Pollution: National Prerogative and Attribution of Responsibility, i i GA. J. INT'L
& COMP. L. 5I9, 559 (I98I). The United Nations Association of the United States and the
Sierra Club similarly endorse international adjudication in the ICJ for transboundary pollution
disputes. See UNA/SIERRA CLUB, UNITING NATIONS FOR THE EARTH I6-17 (1990). Many
commentators propose the creation of an international court of the environment under United
Nations auspices. See, e.g., Mestre, Verso una Corte Internazionale dell'Ambiente, in PER UN
TRIBUNALE INTERNAZIONALE DELL'AMBIENTE 637, 643 (A. Postiglione ed. 1989); Postiglione, A
More Efficient International Law on the Environment and Setting Up and International Court
for the Environment Within the United Nations, 20 ENVTL. L. 321, 321 (1990).

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The challenge for the publicists, then, l

an international liability regime that so adv
that nations will surrender some of their s
in the system.71 By deriving duties from immanent principles and
customs of international law, however, publicists have presupposed
that vague customs coincide sufficiently with the shared interests of
states to secure eventual acceptance of the liability regime. The next
section suggests that the publicists may have assumed what they first
should have set out to prove.
C. Custom as the Source of Law:

Getting Off on the Wrong Foot?
In constructing a regime of state liability for transnational pollu-

tion, publicists have chosen customary international law as the pri-
mary source for liability standards.72 A rule of customary interna-
tional law develops when states follow a constant practice under the
conviction that international law requires their conduct.73 Interna-
tional legal analysts have located evidence of customary international
law in state practice, treaties, charter declarations, the works of in-
ternational lawyers, and judicial decisions of international tribunals. 74
Presumably, international custom serves as a promising point of
departure for the elaboration of a liability system. After all, the very
concept of international custom assumes nearly unanimous acceptance
71 See Chayes & Chayes, supra note 58, at 289.

72 See, e.g., RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED
STATES ?? 60I-604 introductory note (I987) (identifying customary international law as the
source for its rules of state responsibility and liability). Thus, two commentators have intimated
that
international legal principles of environmental responsibility are likely to emerge
from two sources: from international declarations and resolutions that lack the form and
. . . effect of lawmaking treaties and from the express commitments and implied as-
sumptions common to a growing variety of international environmental agreements of
limited scope.
J. BARROS & D. JOHNSTON, supra note 31, at 74. Norms extrapolated from such sources
constitute rules of customary international law.
73 See North Sea Continental Shelf (W. Ger. v. Den. and Neth.), I969 I.C.J. 4, 44 (Judgment
of Feb. 20); Note, Judicial Enforcement of International Law Against the Federal and State
Governments, 104 HARV. L. REv. 1249, 1273 (I99I). A rule of customary international law
generally requires "opinio juris sive necessitatis," a psychological component defined as a con-
viction felt by a state that a certain practice is required by international law. See RESTATEMENT
(THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES ? 102 comment c (1987);
A. TRINIDADE, PRINCfPIOS DO DIREITO INTERNACIONAL CONTEMPORANEO 5 (198I). Opinio
juris distinguishes common practices motivated by a legal obligation from common practices
done out of expediency or convenience. See C. ROUSSEAU, DROIT INTERNATIONAL PUBLIC 78
(IIth ed. I987).
74 See, e.g., W. GORALCZYK, PRAVO MIEDZYNARODOWE PUBLICZNE W Z
S. WILLIAMS & A. DE MESTRAL, AN INTRODUCTION TO INTERNATIONAL

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of certain practices75 and thus a quasi-participation of states in an

implicit, unstated regime. Yet rules of customary international law
rarely specify required behavior. Rather, these rules state interna-
tional duties that are too vague to provide any guidance about what
behavior is acceptable76 or to facilitate ready application of these rules
to specific disputes.77 When publicists endow these abstract duties
with substantive content and attempt to generate determinate out-
comes for future disputes, they inevitably privilege the interests of
some states over others.78
Many developing nations, moreover, refuse to consider themselves
bound by rules of customary international law, however determinate
the rules may be. In particular, newly independent states regard such
rules as relics inherited from the wealthy, powerful states of a bygone
era of colonialism and imperialism.79 Such resistance undermines the
assumption that states accepted, implicitly or explicitly, customary
international duties upon entering the community of nations.80
Developing nations' resistance is especially acute in the context of
international environmental law. Developing countries often regard
the application of customary international law to transboundary pol-
lution as an attempt by developed nations to curtail Third World
industrial growth. At the 1972 Stockholm Conference, for example,
developing countries resisted the imposition of environmental stan-
dards created by the industrialized powers.81 The Brazilian delegate
at Stockholm declared that "his country had no interest whatever in
the subject of pollution control," which he viewed as a "rich man's
problem."82 Although developing nations have begun to moderate
75 See Sohn, "Generally Accepted" International Rules, 6i WASH. L. REV. 1073, 1074 (I986)
76 Vague customary duties allow states to claim that a broad range of conduct accords with
international custom. See, e.g., Jennings, What Is International Law and How Do We Tell It
When We See It?, 37 ANNUAIRE SUISSE DE DROIT INTERNATIONAL 59, 68 (I98I) (observing
that, with regard to customary international law, "not surprisingly each Party is always able to
give [the] identical body of practice the stamp of its own particular thesis").
77 See, e.g., K. HAKAPAA, MARINE POLLUTION IN INTERNATIONAL LAW 137 (I98I) (describ-
ing the customary rule of sic utere as so vague that it "can provide only little guidance for the
verification of specific state obligations").
78 See infra pp. I5 IO-I I.
79 See L. CHEN, AN INTRODUCTION TO CONTEMPORARY INTERNATIONAL LAW 406 (I989);
see also A. SPRINGER, supra note 6, at 32 (arguing that "the validity of some customary practice
as a basis of legal obligation in environmental matters may be challenged by representatives
from recently independent states that played a limited role in the evolution of that practice").
80 See, e.g., L. ARAUJO, TEMAS DE DIREITO INTERNACIONAL PUBLICO 9 (I983).
81 See Biswas, Environment and Law: A Perspective from Developing Countries, in THE
FUTURE OF THE INTERNATIONAL LAW OF THE ENVIRONMENT 389, 389-91 (P. Dupuy ed.
I 984).
82 M. ROYSTON, POLLUTION PREVENTION PAYS 3 (1979); see also N.Y. Times, Feb. 13,
1972, at Aii, col. 3 ("Brazil has argued . . . that poor unpolluted countries should have the
right to do some polluting of their own for the sake of benefits that industry has already brought
to rich, polluted countries.").

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i506 HARVARD LAW REVIEW [Vol. I04:I484
their opposition to environmental protection,83 they continue to regard

customary principles of environmental protection as infringements on
their development.84 Arguing that the developed nations benefited
from the absence of environmental standards to,exploit resources and
promote growth before the latter part of the twentieth century, the
developing countries maintain that the developed nations should bear
the cost of abating the environmental harm they have wrought.85
The reluctance of developing states to accept custom as binding
law reveals the primary shortcoming of an approach to liability that
adopts rules of customary international law as its point of departure:
the assumption of universally-shared norms. The dominant approach
to codification presupposes a set of values common to all states. But
the heterogeneity of interests motivating states' behavior compels the
articulation of customary duties in the most vague and general
terms.86 Divergences of norms and values explain why one cannot
codify more specific obligations of international custom without sac-
rificing the consensus that state practice and opinio juris necessarily
imply. Yet publicists have misconstrued this generality as indicative
of a homogeneity and consistency. When the publicists embarked on
the codification project to create a system of international liability,
they failed to examine the propriety of choosing custom as their start-
ing point.
D. The Codification of State Responsibility

and the Sic Utere Principle
The development of an international legal regime requires a body

of substantive norms that corresponds to the myriad interests of states.
When the norms posit ideals much more ambitious than the interests
of the states, international law detaches itself from the expectations
of its subjects and becomes a utopian vision. The viability of an
international liability system thus hinges on the possibility of promul-
gating a regime that avoids impractical idealism. But international
legal publicists, whose codification efforts often bear the imprimatur
of the United Nations, have failed to avoid this danger.
83 See Leonard & Morell, Emergence of Environmental Concern in Developing Countries: A

Political Perspective, 17 STAN. J. INT'L L. 28I, 284 (I98I).
84 See Feraru, Environmental Actors, in ENVIRONMENT AND THE GLOBAL ARENA 43, 50
(K. Dahlberg, M. Soroos, A. Feraru, J. Harf & B. Trout eds. I989) (citing a "widespread
reluctance" of developing nations "to subordinate economic needs to environmental protection").
85 See id. at 49-50.
86 Cf. J. Chen, Code, Custom and Contract: The Impact of the Uniform C
Trade Usage Vision on the International Law Merchant (forthcoming 27 TEX. INT'L L.J. (i99i))
(observing that trade usage provisions in international sale of goods conventions are ambiguously
drafted to ensure the acceptance of developing and socialist nations).

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If commentators were merely to articulate general duties, inter-

national law would posit ideals so vague that states could claim that
any conduct conformed with legal obligations. When the subjects of
the law can construe the law for themselves, law no longer constrains
their behavior. Law hollows out into pure form without substance.
No operational regime can emerge in the absence of determinate,
substantive norms capable of binding states.
The difficulty of mediating between the need for specificity and
the need for international acceptance haunts the codification of the
state responsibility doctrine and the sic utere principle.
i. State Responsibility. - Publicists have sought to broaden the
scope of private activities attributable to states and, in so doing, have
ensured that states will resist liability for the breach of an international
engagement. The ILC's study of international liability, for example,
eschews the traditional "due diligence" standard of the state respon-
sibility doctrine and holds states liable for almost all private activity
within their territory or control.87 According to one ILC member, the
study grounds its broad sweep on "the state's duty to regulate private
activities and possibly on its ability to require private actors to obtain
insurance or financial security."88 It is difficult to conceive how such
an expansion of the attribution of private conduct to states comports
with the interests of states. A regime predicated on broad notions of
state attribution requires more intrusive government scrutiny of pri-
vate economic activities and makes economic development more ex-
pensive. The publicists seem to have ignored many states' recent
efforts to reduce the role of government in their national economies
and to deregulate private industry.
The expansive notion of state attribution implies, moreover, a
fictional homogeneity in the capabilities of states to control private
activity within their respective territories. By backing such a broad
concept of state attribution, the ILC overlooks the different levels of
economic resources and technical expertise that states may marshal to
regulate industry. The modes and intensity of government interven-
tion in the operation of private enterprise vary considerably from state
to state, and the current level of government intrusion affects the
ability of the state to control private activities. A broad notion of
state attribution disregards the domestic political realities of individual
87 See Fifth Report on International Liability for Injurious Consequences Arising Out of Acts
Not Prohibited by International Law, [I984] 2(I) Y.B. INT'L L. COMM'N i55, U.N. Doc. A/
CN.4/383/Add. i (I984) (stating that international liability encompasses "activities and situations
which are within the territory or control of a State, and which give rise or may give rise to a
physical consequence affecting the use or enjoyment of areas within the territory or control of
any other State").
88 Magraw, The International Law Commission's Study of International Liability for Non-
prohibited Acts as It Relates to Developing States, 6i WASH. L. REv. 1041, 1046 (I986).

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1508 HARVARD LAW REVIEW [Vol. 104:1484
states and instead posits overarching norms unrelated to the under-

lying variety and complexity of national industrial policies.
Recent events do reveal one point of true consistency among states:
they are reluctant to agree to any standards of liability for transfrontier
pollution. Although the historic Principle 21 of the 1972 Stockholm
Declaration places a "responsibility" upon states to prevent trans-
boundary harm,89 states have sidestepped the issue of liability. Stock-
holm Principle 22 mandates only that states "co-operate to develop
further the international law regarding liability and compensation" for
the victims of transnational pollution.90 But, as one commentator
notes, "[s]ince 1972 little has been done to further develop the inter-
national law of liability and compensation. "91 Indeed, since I972,
conventions on marine pollution have deferred the issue of state lia-
bility for extraterritorial injury.92 Ten years after Stockholm, the I982
Law of the Sea Convention essentially reiterated the call enunciated
in Stockholm Principle 22 to develop further the international law of
liability and refrained from codifying any standards:
States shall cooperate in the implementation of existing international

law and the further development of international law relating to re-
sponsibility and liability for the assessment and compensation of dam-
ages and the settlement of related disputes.93
Yet publicists still doggedly look to Stockholm Principle 22 as their

inspiration for codifications of international liability principles.94
2. Breach of Duty. - The nuisance-like standard of the sic utere
principle cannot a priori answer the crucial question of what level of
environmental damage constitutes unacceptable damage,95 nor can it
sufficiently describe what exercise of a state's rights causes unaccept-
able harm.96 By answering these questions independently, judicial
decisions could give content to the normative principle. The lack of
international case law, however, leaves a substantive void. Publicists
89 See Stockholm Declaration, supra note 36, Principle 2I, at 7, reprinted in II I.L.M. 1420.
90 Id.
91 P. SANDS, supra note 30, at 23.
92 See, e.g., Convention for the Protection and Development of the Marine Environment o
the Wider Caribbean Region, Mar. 24, I983, art. 14, 22 I.L.M. 22I, 23I (I983); Convention
for Co-operation in the Protection and Development of the Marine and Coastal Environment
the West and Central African Region, Mar. i6, I98I, art. 15, 20 I.L.M. 746, 751 (I98I).
93 Law of the Sea Convention, supra note 38, art. 235, reprinted in 21 I.L.M. at I3I5.
94 See, e.g., Gaines, supra note 40, at 3II-I5.
95 See, e.g., D. ABECASSIS & R. JARASHOW, OIL POLLUTION FROM SHIPS I5 (I985).
96 The sic utere maxim "is mere verbiage. A party may damage the property of another
where the law permits; and he may not where the law prohibits: so that the maxim can never
be applied till the law is ascertained; and, when it is, the maxim is superfluous." Rose v.
Socony Vacuum Corp., 54 R.I. 411, 4I6, 173 A. 627, 629 (I934).

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have attempted to fill this void by defining the standard of perfor-

mance required of a state in preventing transboundary pollution.
In choosing between negligence and strict liability as the standard
of care, publicists have ignored the practical realities involved in
applying either doctrine. Commentators have endlessly debated ab-
stract legal questions such as whether Stockholm Principle 2197 sup-
ports strict liability,98 or whether Trail Smelter and Lac Lanoux serve
as solid precedents for negligence.99 In this way, international legal
scholars construct their systems from the sparse material of interna-
tional tribunal decisions and charter declarations instead of proceeding
from the basic building blocks of concordant state interests and as-
pirations. An examination of the practicality of negligence and strict
liability standards reveals the difficulties of the publicists' enterprise.
International law has traditionally conditioned the imposition of
state responsibility on a showing of negligence.100 In the 1929 Me-
cham case, for example, the Mexico-United States General Claims
Commission found responsibility by determining "whether what was
done shows such a degree of negligence, defective administration of
justice, or bad faith, that the procedure falls below the standards of
international law."101 Yet the negligence standard poses great diffi-
culties in international environmental law. Domestic courts have cod-
ified yardsticks, such as Learned Hand's famous "BPL" formula,102
to endow the concept of negligence with determinate content. But
these standards, notwithstanding their mathematical polish, have de-
fied uniform application, because controversial value judgments in-
evitably seep into evaluations of costs and utility.103 The indetermi-
nacy and subjectivity of negligence resist codification. Negligence
epitomizes the paradox of creating a universalist system from a radi-
cally subjective concept.
This paradox hampers the formation of the consensus required for
a functioning international liability regime. A negligence-based regime
97 See supra pp. I497-98.

98 Compare De Arechaga, International Law in the Past Third of a Century, [I978] I RECEUIL
DES COURS I, 272 (claiming that Principle 2I "lend[s] some apparent support" for strict liability)
with Handl, supra note 40, at 536 (arguing that "the Stockholm Conference did not resolve the
issue of liability for transnational pollution, in particular its nature and scope").
99 See Handl, supra note 56, at I67-70 (summarizing the debate over whether Trail Smelter
and Lac Lanoux stand for negligence or strict liability).
100 See i L. OPPENHEIM, INTERNATIONAL LAW 311 (H. Lauterpacht 8th ed. I963).
101 Mecham v. United Mexican States (U.S. v. Mex.), 4 R. Int'l Arb. Awards 440, 443
(I929).
102 See United States v. Carroll Towing Co., I59 F.2d I69, I73 (2d Cir. I947) (weighing th
probability and severity of a harm against the burden of preventing the harm).
103 Even Judge Learned Hand, author of the Caroll Towing opinion, acknowledged that the
difficulties in employing his algebraic formula for negligence "arise from the necessity of applying
a quantitative test to an incommensurable subject-matter." Moisan v. Loftus, I78 F.2d I48,
I49 (2d Cir. 1949).

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1510 HARVARD LAW REVIEW [Vol. I04:I484
for international environmental law wou

ies in adjudication and a subsequent deter
ness of a state's conduct. If states held similar normative views of
the meaning of negligence, conceivably a negligence-based regime
could overcome its subjectivity through the shared understandings
among those states. But just as judges within a particular domestic
judicial system may interpret negligence differently, the cultural, po-
litical, and economic dissimilarities between nations may preclude
uniform understandings of negligence internationally. For a liability
regime that necessarily functions through findings of the legal standard
of care, the subjectivity that attaches to interpretations of negligence
places the adjudicatory body in a dilemma. If the tribunal imposes
liability, it will do so only by positing norms that do not correspond
to the interests of many of the states whose participation remains
crucial to the enterprise. Should the tribunal consistently find no
liability, the liability regime imposes no obligations and serves no
useful purpose.
These difficulties with the negligence approach have prompted
many modern commentators to posit a standard of strict liability for
transboundary pollution.104 Strict liability would grant redress auto-
matically after the occurrence of significant injury.105 For its propo-
nents, strict liability garners the legitimizing cachet of objectivity.106
But the disjunction between strict liability and states' interests pre-
cludes an international consensus for strict liability:
[T]his automatic right to redress, so attractive to victims of pollution,

.. . makes many industrial States mistrust the system. ... In
addition, such an automatic right ignores the special geographical
situation in certain countries; for example, in the case of one-way
pollution of an international river, the upstream State would have to
continually pay compensation for the exclusive benefit of the down-
stream State.107'
Strict liability is anathema to developing countries as well. Devel-

oping states often lack the information needed to predict the extent
of transnational harm that will result from domestic activities, espe-
cially the activities of foreign entities upon whom these states often
rely for economic development. 108 By increasing the costs of industrial
104 For example, the WCED, a United Nations organization, proposes strict liability as a
legal principle for transfrontier pollution. See WCED, supra note 43, at 349.
105 'States . . . shall ensure that compensation is provided should substantial transboundary
harm occur even when the activities were not known to be harmful at the time they were
undertaken." Id.
106 See, e.g., B. SMITH, supra note 20, at I5-2I.
107 DuPuy, supra note 22, at 373-74.
108 See Magraw, supra note 88, at IO5O.

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operations, strict liability may also hinder developing states' ability to

compete internationally and thus impede their economic growth.109
Strict liability, moreover, can never fully escape the subjectivity
that disables negligence as a basis for a universalist regime of inter-
national liability. The blanket imposition of liability for all trans-
boundary harm would create an unimaginably complex and unwork-
able system. Yet separating out those "ultrahazardous" activities and
those "significant" environmental harms that compel the application
of strict liability requires a case-by-case balancing between the risk
and utility of particular conduct. "Almost all human activity and
technology may affect the environment," writes one scholar.110 "The
problem then is to weigh the benefits of such activities, and the costs
of controlling them, against the probable environmental conse-
quences. " 1 Defining the conduct that triggers the application of strict
liability necessarily reintroduces subjectivity into the inquiry.
E. An Exercise in Futility:
The Rise of Procedural Duties
The failure to develop an operational liability regime has prompted

some critics to denigrate the role that state responsibility may play in
international environmental law.112 These legal experts have found
the whole concept of international adjudication especially inadequate
for transnational pollution, because any proposed regime would nec-
essarily operate ex post facto.113 Any system of liability takes time to
deter parties from polluting, because individuals will have to sum up
many outcomes of "tort" adjudication to reach a predictive assessment
of the potential liability attaching to their actions. According to pub-
licists, current environmental problems pose too devastating a threat
for a liability system alone to protect the environment.114
Moreover, many commentators complain that the central charac-
teristic of adjudicatory systems - ex post facto intervention to develop
109 Cf. Robinson, Problems of Definition and Scope, in LAW, INSTITUTIONS AND THE
GLOBAL ENVIRONMENT 43, 48-49 (I972) (describing developing nations' suspicion that environ-
mental norms championed by developed states will interfere with the achievement of Third
World economic objectives).
110 Bilder, The Settlement of Disputes in the Field of the International Law of the Environ-
ment, [I975] I RECEUIL DES COURS I39, I54.
111 Id.
112 See, e.g., A. LEVIN, PROTECTING THE HUMAN ENVIRONMENT x (I977).
113 See, e.g., J. SCHNEIDER, supra note 39, at 50.
114
[L]iability is insufficient to ensure the protection of the environment. . . . The damage

that [the environment] suffers is often definitive, the deterioration irreversible . . . or
then the cost of restoration is extraordinarily high. . .. For all of these reasons, an
intervention a posteriori whose outcome frequently remains in doubt . . . cannot be
considered an efficient remedy.
A. KISS, supra note 37, at I31 (authqr's translation).

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15I2 HARVARD LAW REVIEW [Vol. I04:I484
rules for disputes that have already arisen - has a divisive effect on
international relations. A liability regime fosters "adversary confron-
tations" that undermine transnational environmental protection.115 In-
deed, such confrontations run counter to the current model of inter-
national law as "govern[ing] a community . . . of states" and as thus
depending upon states' mutual cooperation.116
In an effort to forestall significant extraterritorial environmental
injury17 and to avoid the confrontational proceedings inherent in a
liability regime,118 international legal analysts have developed rules of
state conduct designed to prevent environmental harm before the harm
occurs.119 Procedural obligations, including duties to assess potential
transboundary harm and to disclose dangerous activities to other na-
tions, have emerged to dislodge the substantive obligation of sic utere
as the doctrinal bulwark against transnational pollution. Indeed, the
recent proliferation of international treaties and charters imposing
duties on states to assess transboundary environmental dangers and
to inform potentially affected states of dangers120 signals the move
away from ex post determinations of compliance with legal standards
of care toward a new regime of procedural requirements.
Procedural obligations, however, fail to prevent the confrontations
that a nuisance-style liability regime would breed. The breach of a
duty of prior assessment or disclosure would not subject a state to a
claim of liability until after damage has occurred.121 Thus the shift
115 J. SCHNEIDER, supra note 39, at 197.

116 I. BROWNLIE, supra note 52, at 287. Such a model presupposes once again shared values
and truths among all peoples. "The theory of inter-state community coincides with the Christian
concept of universal brotherhood. " A. VALLE, FILOSOFIA DEL DERECHO INTERNACIONAL I I 7
(I985) (author's translation).
117 A former UNEP expert complains that "traditional judicial review mechanisms based on
liability . . . only intervene after the fact" and that "[t]here is a clear need for preventive
environmental controls to be scheduled before it is too late to take corrective action." Sand,
supra note 54, at 275. One commentator proposes "a system of prior authorization" obviatin
"'the need to wait for damage to be suffered in order to intervene against environmental harm."
A. SPRINGER, supra note 6, at I42 (quoting A. KISS, SURVEY OF CURRENT DEVELOPMENTS IN
INTERNATIONAL ENVIRONMENTAL LAW 55 (I976)).
118 One expert argues that "the main thrust of international efforts should be directed at the
resolution of potential conflicts before they crystallize into adversary confrontations." J. SCHNEI-
DER, supra note 39, at I97.
119 See, e.g., Kiss, Le controle d'activite's prejudiciables a 1'environnement par des regim
d'autorization prealable, ou de declaration, in TRENDS IN ENVIRONMENTAL POLICY AND LA
supra note 22, at 8i, 8I-82; Sand, supra note 54, at 274. One scholar asserts that "awareness
and consideration of [detrimental] effects at the planning stage . . . will obviously result in
sound planning and . . . avoidance of international disputes." Cooper, The Management of
International Environmental Disputes in the Context of Canada-United States Relations, I986
CAN. Y.B. INT'L L. 247, 296. See generally F. KIRGIS, PRIOR CONSULTATION IN INTERNA-
TIONAL LAW (I983) (discussing the extensive treaty practice of procedural obligations).
120 See infra pp. I514, I5I5, and note I47.
121 "[T]here is a liability to remedy damage resulting from a breach of international law

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to pre-injury responsibility fails to prevent pollution any better than

would an ex post facto liability approach.
Moreover, substitution of procedural duties for substantive com-
mands ironically limits the role of international law in environmental
protection. In itself, an evaluation of likely environmental hazards
affords no direction concerning what courses of action will violate
international law. A duty to inform mandates nothing; it provides no
guidance about whether and how pollution source states should alter
their behavior in light of the new information. Adherence to duties
of prior assessment and disclosure will scarcely reduce transboundary
pollution. Thus, the shift to procedural obligations renders compli-
ance with international law inconsequential for actually protecting the
environment.
The move towards procedural duties may in fact legitimate envi-
ronmentally hazardous conduct. As procedural duties to assess and
inform replace substantive commands to prevent significant trans-
boundary pollution,122 states may discharge their international obli-
gations simply through the production of assessment and information
reports.123 Procedural duties may give a state an implied license to
pollute, as long as procedural technicalities are fulfilled.
Finally, by failing to provide any determinate content to the pro-
cedural obligations,124 the new regime compounds the errors that
publicists have committed in their attempts to develop a liability
regime. The failure to codify the substantive norm of sic utere has
stemmed from an inability to maneuver between the dangers of gen-
eral duties that impose no meaningful obligations on the one hand
and specific duties that conflict with the aspirations of states on the
other. The proponents of procedural obligations have fallen into the
former trap by promulgating a series of vague duties long on hope
and painfully short on specifics.
i. Duty to Assess. - Designed to promote environmentally con-
scious decisionmaking,125 the duty to assess constitutes the principal
procedural obligation imposed upon states. The Lac Lanoux arbitra-
tion contains one of the earliest articulations of a state's duty to
evaluate the extraterritorial damage that activities within the state's
jurisdiction or control threaten to cause. The tribunal stated in dicta
thus it is a derived liability which arises only after the damage and for that reason cannot
normally be used as a legal instrument for preventing damage." DuPuy, supra note 22, at 379
(emphasis in original).
122 See, e.g., J. BRUNEE, supra note 2, at 4 (noting that international environmental law
has gone "from a reactive to a preventive approach").
123 See infra pp. 15i6-17, 1520.
124 See infra pp. 1515, I5i8.
125 See Wirth, International Technology Transfer and Environmental Impact Assessment,
TRANSFERRING HAZARDOUS TECHNOLOGIES AND SUBSTANCES: THE INTERNATIONAL LEGA
CHALLENGE 83, 84 (G. Handl & R. Lutz eds. I989).

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1514 HARVARD LAWREVIEW [Vol. I04:I484
that "the upstream State . . . has the obligation to take into consid-
eration the different interests at stake . . . and to demonstrate that
. . . it is genuinely concerned about reconciling the interests of the
other riparian with its own."1126 The International Law Association's
Montreal Rules on Transfrontier Pollution127 urge states to prepare
environmental assessments to evaluate the risk of transfrontier pollu-
tion posed by a proposed activity.'28 The OECD calls on states
providing development assistance to developing countries to subject
proposed projects to "in-depth environmental assessment."1129
Some state practices similarly recognize the duty of a state to take
into account the extraterritorial impact of activities within its national
jurisdiction. For example, the Council of the European Communities
adopted its final directive on environmental assessment in i985 re-
quiring appraisal of environmental effects in other member states.130
In I983, Canada issued a Guidelines Order131 for its environmental
assessment review procedures that requires that the "external" envi-
ronmental consequences of a federal government proposal be fully
considered.132 A 1977 U.S. Executive Order requires that environ-
mental impact statements filed in compliance with the National En-
vironmental Policy Act (NEPA)133 be prepared for "all major Federal
actions significantly affecting" the "natural and physical" environment
beyond United States territorial control.134 This evidence prompts
one commentator to characterize the duty to assess as the "least
controversial"135 of the procedural duties.
126 Lac Lanoux (Spain v. Fr.), 12 R. Int'l Arb. Awards 28i, 315 (1956) (author's translation).
127 See Rules of International Law Applicable to Transfrontier Pollution, in INT'L L. ASS'N,
REPORT OF THE 60TH CONFERENCE I58 (I982).
128 See id. at 171.
129 OECD Recommendation C(85)1O4, reprinted in OECD, STRENGTHENING ENVIRONMEN-
TAL CO-OPERATION WITH DEVELOPING COUNTRIES 138 (I989).
130 See Directive on the Assessment of the Effects of Certain Public and Private Projects on
the Environment, 28 O.J. EUR. COMM. (No. L I75) 40 (I985). The member states are required
to implement the Council directive. See Treaty of Rome, Mar. 25, I957, art. I89, 298 U.N.T.S.
II, 78.
131 Environmental Assessment and Review Process Guidelines Order, Registration SOR/84-
467, June 22, I983, II8(2) Can. Gaz. 2794 (I984).
132 See id. ? 4(I)(a), at 2795.
133 42 U.S.C. ?? 432 I-4370a (i988).
134 Exec. Order No. I2,II4, 3 C.F.R. 356 (I979). One commentator maintains that the
executive order is "obviously susceptible to circumvention through agency manipulation of its
multiple exemptions." Note, The Extraterritorial Application of NEPA Under Executive Order
12,114, I3 VAND. J. TRANSNAT'L L. I73, 2I5 (Ig80); see also National Resources Defense
Council, Inc. v. Nuclear Regulatory Comm'n, 647 F.2d I345, I368 (D.C. Cir. Ig8I) (holding
that the National Environmental Policy Act did not require the Nuclear Regulatory Commission
to prepare an environmental impact statement assessing the foreign effects of an American
nuclear reactor in the Philippines).
135 A. SPRINGER, supra note 6, at 145.

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Yet attempts to codify the duty to assess as a customary obligation

under international law stumble over the same obstacles encountered
with the sic utere principle: unelaborated, the duty to assess remains
too general to provide any standards by which one can judge a state's
conduct. If the duty is imbued with determinate content, however,
states will repudiate the duty as inconsistent with their interests.
States have preferred the former result. In I978, for example, the
United States prepared a Draft Treaty on International Environmental
Assessments that would have required signatories to prepare stan-
dardized evaluations for "major" activities within their territory or a
global commons area "which may be reasonably expected to have a
significant effect on the environment of other nations or on a global
commons area."1136 The treaty would have obliged signatories to sub-
mit the environmental assessments to affected states and to UNEP. 137
The proposal has garnered meager international backing, and one
commentator notes that the duty "means little without further devel-
opment and harmonization of evaluation procedures."1138 The envi-
ronmental assessment requirements that states ratified in articles 204
to 206 of the I982 Law of the Sea Convention impose a more ambig-
uous, watered-down duty on states to "assess the potential effects of
such activities on the marine environment" and to transmit their
findings to "the competent international organizations."1139
Although designed to nip extraterritorial damage in the bud, the
duty to assess imposes no obligation upon states to forego environ-
mentally harmful activities. Assessment requires the determination of
costs and benefits of a proposed project; it does not specify how they
should be weighed. States may have a duty to consider the trans-
boundary harm of a proposed activity, but no international consensus
indicates the weight that national decisionmaking must accord to the
"cost" of environmental harm abroad. The dearth of precise criteria
precludes the imposition of liability, prior to the damage, for a state's
decision to adopt a harmful course of action.
Thus, the duty to assess remains a purely procedural obligation
that creates no opportunity for judicial review of either the substantive
merits of the consequent decision to act or even the procedural ade-
quacy of a state's assessment of extraterritorial effects.140 Indeed,
136 S. Res. 49, 95th Cong., 2d Sess., I24 CONG. REC. 22,204 (I978).
137 See id.
138 A. SPRINGER, supra note 6, at I46.

139 See Law of the Sea Convention, supra note 38, arts. 204-206, reprinted in 2I I.L.M. at
I309.
140 It is necessary to distinguish two types of situations in which some form of env
impact assessment may be required: governmental actions and actions by international
zations such as the multilateral banks. Although this Part focuses primarily on enviro

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I5 I6 HARVARD LAW RE VIEW [Vol. 104:1484
national decisionmaking pursuant to a state assessment has remained

largely immune from substantive challenge. Notwithstanding the un-
usual tradition of active judicial review in the United States, courts
in this country may review agency decisions based on environmental
impact statements only under the "arbitrary and capricious" stan-
dard.141 Some United States courts, however, have attempted, in
effect, to smuggle in substantive review of agency decisionmaking
through stringent procedural review of the environmental impact as-
sessment process.142 Whatever substantive effect an environmental
impact assessment has on agency decisionmaking derives mostly from
the desire to avoid prolonged procedural and judicial battles with
those opposing a project. But the improbability of international ju-
dicial review of the procedural sufficiency of a state's environmental
assessment dilutes the substantive impact of the duty.
Some commentators have asserted that environmental impact as-
sessments at least have the salutary effect of mobilizing political op-
position to the environmentally hazardous projects. 143 It remains un-
clear whether the obligation to assess will increase the political costs
of undertaking a particular venture. If an environmental assessment
really can trigger international resistance to a proposed enterprise, the
source state will likely minimize in its report the magnitude and risk
of harm that such activity may truly threaten. The requirement of
prior assessment thus creates a perverse incentive for states to white-
wash environmental dangers in their assessments and even risksfrus-
trating political campaigns. If anything, the mobilization of political
opposition to a proposed project will emerge in spite of, not because
of, the international obligation to provide a prior assessment.
Indeed, the emergence of the international duty to assess heralds
a misguided doctrinal emphasis on placing procedural obligations on
states, because states may effectively ratify environmentally hazardous
impact statements prepared by states, the criticism of the duty to assess as a procedural
whitewash for environmentally hazardous behavior applies equally well in the other context.
The absence of judicial scrutiny of the actions of international organizations substantially di-
minishes the opportunity for effective external review of environmental impact reports filed prior
to the organizations' actions. Unsurprisingly, the environmental assessment program of multi-
lateral development banks has been criticized for failing to safeguard the environment, in part
because the banks are not responsible for the environmental effects of the projects they finance.
See, e.g., Rich, The Multilateral Development Banks, Environmental Policy, and the United
States, I2 ECOLOGY L.Q. 68i, 688-703 (I985). One commentator has pointed out that the
World Bank's environmental policies "do not seek to reevaluate the nature of assistance or the
types of projects it supports." Muldoon, The International Law of Ecodevelopment: Emerging
Norms for Development Assistance Agencies, 2 2 TEx. INT'L L.J. I, 33 (I987).
141 See, e.g., Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28
(i 980).
142 See McGarrity, Judicial Enforcement of NEPA-Inspired Promises, 20 ENVrL. L. 569,
570 (I990).
143 See Sand, supra note 54, at 273-75.

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I99I] DEVELOPMENTS -INTERNATIONAL ENVIRONMENTAL LAW I5I7
behavior through formal compliance with the duty to assess extrater-

ritorial environmental effects.144 Without any enforcement mecha-
nism, the environmental assessment program remains a procedural
formality bereft of any substantive impact on national decisionmaking.
2. Duty to Inform or Disclose. - States are also deemed to have
the duty to inform other states of activities posing a risk of environ-
mental harm. The Lac Lanoux arbitral tribunal stated in dicta that
France was required under the Treaty of Bayonne145 to give Spain
notice of the proposed construction of a dam. 146 Although the tribunal
never addressed the issue whether the duty to inform would have
applied without the Treaty of Bayonne, international legal scholars
have exhibited little hesitation - based on an overwhelming consensus
of numerous treaties, charters, and resolutions147 - in proclaiming
that as a rule of customary international law, a duty to inform applies
to states when planned activity attributable to them carries a risk of
significant transfrontier environmental harm. 148
Notwithstanding the plethora of evidence, the duty to inform lays
questionable claim to the status of international custom. At the I972
Stockholm Conference, a proposed draft for Principle 20 included
language requiring states to communicate "[r]elevant information . . .
on activities or developments within [states'] jurisdiction or under their
control whenever they believe, or have reason to believe, that such
144 Cf. Blumm, The National Environmental Policy Act at Twenty, 20 ENVTL. L. 447, 4
(I990) (noting that "agencies know that they can take NEPA's goals rather lightly if they produce
enough paperwork to satisfy NEPA procedures"); Sax, The (Unhappy) Truth About NEPA, 26
OKLA. L. REV. 239, 239 (I973) (characterizing reliance on NEPA's procedures for environmental
improvement as "nine parts myth and one part coconut oil").
145 Traite pour determiner la frontiere depuis l'embouchure de la Bidassoa jusqu'au point oii
confinent le departement des Basses-Pyrenees, l'Aragon et la Navarre, in II TRAIT#S ET CON-
VENTIONS EN VIGUEUR ENTRE LA FRANCE ET LES PUISSANCES 9TRANGPRES I (I919).
146 See Lac Lanoux (Spain v. Fr.), 12 R. Int'l Arb. Awards 28I, 3I4 (I956).
147 The OECD and the Law of the Sea Convention codify a duty to inform. See OECD
Doc. C(74)224 (Nov. 2I, I974), reprinted in I4 I.L.M. 242, 246 (I975); Law of the Sea
Convention, supra note 38, arts. 204-206, reprinted in 2I I.L.M. at I309 (requiring publication
of the anticipated environmental injury arising from activities within a state's jurisdiction and
control); see also J. BRUNPE, supra note 2, at io6-o8 (identifying United Nations General
Assembly, International Law Association, and United Nations Environment Program resolutions,
as well as multilateral and bilateral treaties, that impose a duty to inform upon their signatories).
148 See, e.g., Bothe, Transfrontier Environmental Management, in TRENDS IN ENVIRON-
MENTAL POLICY AND LAW, supra note 22, at 39I, 394; Handl, The Environment: International
Rights and Responsibilities, I980 PROC. AM. SoC'Y INT'L L. 223, 224. Commentators acknowl-
edge an exception for national security. See, e.g., F. KIRGIS, supra note iI9, at 36I. Such an
exception is inevitable because "states will not provide information that jeopardizes national or
even industrial security, and a rule that did not make allowance for that reality would be
weakened in all respects by noncompliance (if it were even agreed to in the first place)." Magraw,
Transboundary Harm: The International Law Commission's Study of "International Liability,"
80 AM. J. INT'L L. 305, 328 (I986).

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I5I8 HARVARD LAW RE VIEW [Vol. 104:1484
information is needed to avoid the risk of significant adverse effects

on the environment in areas beyond their national jurisdiction."1149
This Draft Principle was jettisoned, however, in part because devel-
oping nations, particularly Brazil, expressed concern about the pos-
sible hindrances that a duty to inform would pose to Third World
economic development and because some states insisted on the sov-
ereign right to determine the kind of information they wished to
transmit.150 Thus, the notion of a customary duty of prior disclosure
enjoys only dubious status.151
By codifying the duty to inform, publicists risk depriving the
norms they posit of the necessary correspondence with states' real
aspirations. Because states perceive a specific obligation of prior dis-
closure as contrary to their interests, the duty is abstracted to such a
level of generality that states may plausibly construe a wide range of
conduct to satisfy the obligation. Indeed, many agreements fail to
specify even a standard for timeliness.152 Charters and resolutions,
moreover, typically enunciate vague requirements of "relevant and
reasonably available information,"1153 "all relevant and available in-
formation,"154 "appropriate information,"'155 or, quite simply, "infor-
mation."1156 No universally accepted standards have emerged for de-
termining whether information is "relevant" or "available."1157 Nor do
treaties shed much light on the threshold degree of harm or risk of
harm needed to trigger the duty.158 Like the sic utere principle, the
duty to inform is an empty abstraction voicing high hopes.
The underlying rationale for the duty to inform rests on unproven
and highly contestable assumptions. One scholar insists that a duty
to provide information will allow a potentially affected state "to pro-
tect itself and to assert its interest in enjoying an unharmed environ-
149 Draft Declaration on the Human Environment, U.N. Doc A/CONF. 48/4, Annex, para.
20, at 4 (I972).
150 See J. SCHNEIDER, supra note 39, at I59; Sohn, The Stockholm Declaration on the
Human Environment, I4 HARV. INT'L L.J. 423, 500 (I972). One commentator explains that
because "at the time Brazil was engaged in an environmental dispute with Argentina, it resisted
the incorporation of any duty on prior notification or consultation." J. BRUN#E, supra note 2,
at io6.
151 See A. SPRINGER, supra note 6, at I47.
152 See A. LEVIN, PROTECTING THE HUMAN ENVIRONMENT 9 (I977).
153 INT'L L. ASS'N, REPORT OF THE 52ND CONFERENCE 84 (I966).
154 Schematic Outline, Third Report on International Liability for Injurious Consequences
Arising Out of Acts Not Prohibited by International Law, [I982] 2(2) Y.B. INT'L L. COMM'N
5I, 62, U.N. Doc. A/CN.4/36o and Corr.i, ? 2, art. I (I982).
155 OECD Recommendation C(77)28, reprinted in OECD, LEGAL ASPECTS OF TRANSFRON-
TIER POLLUTION 29 (I977).
156 Charter of Economic Rights and Duties of States, art. 3, U.N. Doc. A/RES/328i, re-
printed in I4 I.L.M. 25I, 255 (I975).
157 See Magraw, supra note I48, at 328.
158 See J. BRUN#E, supra note 2, at io8.

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ment."'159 Another asserts that the duty is "obviously" designed to

minimize harm to affected states and hypothesizes that, had the
United States known about the sloppy training and plant design at
the Union Carbide plant in Bhopal, India, "notification of those dan-
gers to India would have permitted India to take remedial action and
might have averted the disaster entirely."'160 But even if one were to
attribute Union Carbide's conduct to the United States,161 the I984
Bhopal incident illustrates the futility of imposing a duty to inform:
a lumbering state bureaucracy will often be unable to mobilize itself
to respond to the information provided. India was in a much better
position to learn of the dangers than the United States, and news
reports have suggested that India knew of safety lapses at the plant
prior to the accident. 162 Even if the United States had informed India
of the plant's hazards, it seems doubtful that the Indian government
would have roused itself to close the plant or to clear the population
from the vicinity.
On a more general level, it remains unclear how the simple pro-
vision of information will reduce transboundary environmental harm.
After all, the mere duty to supply data does not necessarily entail any
obligation to forego activities that pose a large risk to the environment
beyond national jurisdiction. The absence of any liability standards
or cause of action prior to the infliction of harm163 makes it difficult
to envision how prior notice will enable a state to assert its legally
protected interest to an unspoiled environment.
In spite of these difficulties, commentators are nearly unanimous
in their praise of the duty to inform. 164 At first blush, the duty upon
states to supply information seems beyond reproach, and the draw-
backs outlined above may portray it as at worst innocuously ineffec-
tive. Yet the duty to inform may undermine the goal of environmental
protection, particularly as it is codified in treaties and declarations.
First, careless drafting of a duty to inform provision may allow states
to claim that they have performed their responsibility of avoiding
transboundary harm simply by supplying information to the affected
159 Bothe, supra note 148, at 394. Another commentator states that the duty to inform
affords victim states "an opportunity to adapt to the new conditions." F. KIRGIS, supra note
II9, at 370.
160 Magraw, supra note 148, at 328.

161 One commentator asserts that "[i]f the question were whether the United States could be
found liable under contemporary international law for the injuries from the Bhopal disaster, the
short answer . . . would be no." McCaffrey, supra note 4, at 724.
162 See Diamond, Indians Disciplined over Plant Safety, N.Y. Times, Dec. 29, I984, ? I,
at 4, col. 3 (commenting that bureaucrats in the Labor Department of the Indian government
ignored information about previous safety lapses at the plant).
163 "Failure to comply with the duty to inform . . . does not give rise to a right of action."
Magraw, supra note 88, at 312.
164 See, e.g., Bothe, supra note 39, at 79, 87.

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states. Indeed, the Mexican representative to the I972 Stockholm

Conference opposed Draft Principle 20 on the grounds that it could
be interpreted to mean that "the responsibility to ensure protection of
the environment, embodied in [P]rinciples 2I and 22, could be met
by merely informing neighbouring countries."'165 Second, the vague-
ness of the type of data that states have a duty to supply risks
permitting states to fulfill their obligations by furnishing incomplete
or inadequate information. The national security exception,166 the
uncertainty of the standards of disclosure, and the general reluctance
of states to disclose information suggest that the duty to inform will
tend to be construed in favor of the source state.167 Thus, a state
will be able to vindicate its behavior as satisfying international obli-
gations even as it flouts the spirit of its duties. Third, assuming
arguendo that the duty to inform may serve as a trip wire setting off
international resistance to a major project, the indeterminacies of duty
to inform provisions will allow states to claim that their late provision
of incomplete information fulfilled international duties. The duty to
inform is tailor-made to allow states to clothe environmentally dan-
gerous acts in the legitimizing raiment of international law.
F. The Limits of Legal Analysis
International legal experts persist in their attempts at prising open

all the possibilities supposedly contained in the vast body of treaties,
charters, and state practices that comprise customary international
law. They continue drawing inferences and conclusions that are either
too controversial to garner international acceptance or too vague to
provide any guidance for determining acceptable conduct. The utility
of customary international law depends on its ability both to generate
relatively determinate outcomes to normative problems168 and to ad-
vance the corpus of shared interests that prompts states to participate
in international regimes. With respect to the former, relentless at-
tempts to eradicate the uncertainties, ambiguities, and incoherencies
of customary international law collide with notions of state sovereignty
and realities of competing interests. With respect to the latter, the
articulation of generalized norms drain law of its normative content.
Ongoing attempts to make regulation of transboundary environmental
harm conform to the abstract principles of international law only
165 United Nations General Assembly Twenty-Seventh Session, Second Committee, U.N.
Doc. A/C.2/SR.147o, at I9 (prov. ed. 1972).
167 Cf. Magraw, supra note 88, at 328 (making a similar point about the duty to inform
provision of the ILC's study of international liability).
168 See M. KOSKENNIEMI, APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL L
GAL ARGUMENT II (I989) (noting that "[i]f the law lacked determinate content, it would be
singularly useless in communicating any ideas or expectations or procedures").

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I99I] DEVELOPMENTS -INTERNATIONAL ENVIRONMENTAL LAW I52I
highlight the inapplicability of classic international legal paradigms to

extraterritorial pollution.
International regimes derive their legitimacy less from their ability
to implement general legal rules than from their capacity to reshape
the context within which states conceive their self-interest. Instead of
multiplying statements of vague international legal principles and ob-
ligations, publicists need to engage in the much more empirical work
of identifying common interests and constructing a regime based on
them. The divergent nature of states' interests in international envi-
ronmental control suggests that such an enterprise may require that
environmental issues be linked to economic or political issues.169 By
batching issues, such as development assistance, debt relief, and eco-
nomic aid along with environmental management, a broader inter-
national regime would foster bargaining and, ultimately, cooperation
among states by allowing for more potential quids for each quo.170
Ultimately, legal analysis will play at best a peripheral role in
international environmental protection. The dirty work of pinpointing
common interests lies within the expertise of diplomats, economists,
financiers, and scientists, not lawyers. Law can do little but express
the paramount objectives of these efforts - for example, the cessation
of significant transboundary pollution and the payment of compensa-
tion for damages. The codification of abstract legal norms embodying
the concerns of a few must give way to a focus on the matrix of
shared interests attracting the adherence of all.
III. THE CREATION OF INTERNATIONAL ENVIRONMENTAL

AGREEMENTS
International environmental agreements are the predominant legal

method for addressing environmental problems that cross national
boundaries. 1 Many environmental agreements involve localized trans-
169 Cf. Chayes & Chayes, supra note 58, at 280, 287 (predicting that future international
environmental agreements "will embody compromises and trade-offs between environmental,
economic and other interests").
170 See R. KEOHANE, AFTER HEGEMONY 91 (I984). Keohane notes that "[w]ithout inter-
national regimes linking clusters of issues to one another, side-payments and linkages would be
difficult to arrange in world politics; in the absence of a price system for the exchange of favors,
institutional barriers would hinder the construction of mutually beneficial bargains." Id.
1 For the purposes of this Part, "international" means agreements between two or more states
or international organizations such as the European Economic Community. Such agreements
can be classified roughly as bilateral (between two states), regional (among more than two states
sharing geographic proximity), or global (among more than two states not sharing geographic
proximity). "Agreement" means any agreement in written form and governed by international
law; all treaties fit this definition of agreement, as do many agreements called (somewhat
misleadingly) conventions and protocols. See The Vienna Convention on the Law of Treaties,
opened for signature May 23, I969, art. 2, para. i(a), II55 U.N.T.S. 331, 333 [hereinafter 1969
Vienna Convention] (entered into force Jan. 27, I980) (defining "treaty" as "an international

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boundary pollution such as acid rain or a shared physical resource

such as a river or a lake.2 As environmental problems become in-
creasingly global in nature, however, broader agreements pertaining
to the oceans, the atmosphere, the global climate, Antarctica, and
endangered species will assume a greater role in the preservation of
the earth's environment.
This Part examines the problems that arise in the creation of
international environmental agreements and the methods used to re-
duce or avoid those problems. Section A introduces the law that
governs the adoption of international agreements and describes the
methods that have been used to negotiate these agreements. Section
B examines special characteristics of environmental problems that
distinguish them from other subjects of international agreements.
These problems include acting in light of scientific uncertainty, regu-
lating the use of global commons, and determining the interests of
future generations. Section C considers the currently favored method
of creating multilateral international environmental agreements, the
convention-protocol approach, and argues that it will not produce an
effective global warming agreement. Section D recommends that
states supplement a framework convention on global warming with
provisions that call for parties to adopt domestic environmental reg-
ulation.
A. The Creation of International Agreements:

The Law and the Process
International agreements are created in two stages: representatives

first meet to negotiate a text of the agreement, and states then ratify
it. International law, however, does not specify how to implement
this two-step process. The primary sources of law governing the
creation of international agreements are the I969 Vienna Convention
on the Law of Treaties3 and the I986 Vienna Convention on the Law
agreement concluded between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever its particular
designation"). Finally, "creation" refers to all activities undertaken by the negotiating states
during the period beginning with discovery and identification of the environmental problem and
concluding when the agreement enters into force.
2 Approximately 300 international agreements deal with rivers, lakes, or drainage basins
alone. See Bilder, The Settlement of Disputes in the Field of the International Law of the
Environment, 144 RECUEIL DES COURS D'ACADgMIE DEDROIT INTERNATIONAL 139, i68 (I975).
3 I969 Vienna Convention, supra note i. The I969 Vienna Convention is largely a codifi-
cation of preexisting customary international law. See S. ROSENNE, THE LAW OF TREATIES
41-46 (1970); see also S. ROSENNE, DEVELOPMENTS IN THE LAW OF TREATIES 1945-1986, at
I-I0 (I989) [hereinafter S. ROSENNE, DEVELOPMENTS] (discussing unaddressed issues in the
codified law of treaties); I. SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES
10-2t (2d ed. I984) (examining the extent to which the I969 Vienna Convention was codification
of customary law or progressive development). Thus, even though the United States is not a

202.190.66.222 on Mon, 31 Jul 2023 08:18:24 +00:00
of Treaties Between States and International Organizations or Be-

tween International Organizations.4 The former applies to agreements
between states5 and the latter to agreements involving international
organizations such as the United Nations,6 but they are virtually
identical in substance. Under both conventions, states and interna-
tional organizations have the capacity to enter binding agreements7
but cannot be bound by any agreement without their consent.8
A state or international organization that seeks to enter into
an agreement must send a valid representative9 to negotiate
an authentic text of the agreement. 10 Once the negotia-
tions produce an authentic text, each state may express its
consent to be bound by the agreement, usually by ratifying it,1"
party to the treaty, many of its provisions have been incorporated into the American Law
Institute's Third Restatement of the Foreign Relations Law of the United States. See RES-
TATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES ?? 3II-339
(I986) [hereinafter RESTATEMENT OF FOREIGN RELATIONS].
4 Opened for signature Mar. 2I, I986, U.N. Doc. A/CONF. 129/15, reprinted in 25 I.L.M.
543 [hereinafter I986 Vienna Convention].
S See I969 Vienna Convention, supra note I, art. 2, para. i(a), 1155 U.N.T.S. at 333.
6 See I986 Vienna Convention, supra note 4, art. 2, para. i(a)(i), reprinted in 25 I.L.M. at
545.
7 See I986 Vienna Convention, supra note 4, art. 6, reprinted in 25 I.L.M. at 549; 1969
Vienna Convention, supra note I, art. 6, 1155 U.N.T.S. at 334.
8 See I986 Vienna Convention, supra note 4, art. 34, reprinted in 25 I.L.M. at 564; 1969
Vienna Convention, supra note I, art. 34, 1155 U.N.T.S. at 341; I. SINCLAIR, supra note 3, at
98-99.
9 See I986 Vienna Convention, supra note 4, art. 7, reprinted in 25 I.L.M. at 549-50; I969
Vienna Convention, supra note I, art. 7, 1155 U.N.T.S. at 334. Under these provisions, the
head of state or a diplomat bearing a formal document entitled a "full power" has the authority
to represent the state, and such authority also can be inferred from the state's practice or other
circumstances. See generally I. SINCLAIR, supra note 3, at 29-33 (describing the origins of the
"full powers" requirement and the purposes of the provisions in the I969 Vienna Convention).
If an agreement is entered by someone not authorized to represent the state, the agreement has
no legal effect unless the state subsequently confirms it. See I986 Vienna Convention, supra
note 4, art. 8, reprinted in 25 I.L.M. at 550; I969 Vienna Convention, supra note I, art. 8,
II55 U.N.T.S. at 334.
10 See I986 Vienna Convention, supra note 4, arts. 9-IO, reprinted in 25 I.L.M. at 550-51;
I969 Vienna Convention, supra note I, arts. 9-IO, 1155 U.N.T.S. at 335. For agreements
negotiated at an international conference, "[t]he adoption of the text of a treaty . . . takes place
by the vote of two-thirds of the States present and voting, unless by the same majority they
shall decide to apply a different rule." I969 Vienna Convention, supra note I, art. 9, para. 2,
II55 U.N.T.S. at 335; see also I986 Vienna Convention, supra note 4, art. 9, para. 2, reprinted
in 25 I.L.M. at 55I. Otherwise, the conventions provide that the parties adopt the text of the
treaty by consensus. See I986 Vienna Convention, supra note 4, art. 9, para. I, reprinted in
25 I.L.M. at 550; I969 Vienna Convention, supra note I, art. 9, para. I, II55 U.N.T.S. at
335; see also I. SINCLAIR, supra note 3, at 33-39 (describing the process for treaty adoption in
the I969 Vienna Convention). A text of the agreement is established as authentic when the
representatives sign or initial the text or a final act incorporating the text, unless the agreement
specifies otherwise. See I986 Vienna Convention, supra note 4, art. io, repninted in 25 I.L.M.
at 55I; I969 Vienna Convention, supra note I, art. IO, II55 U.N.T.S. at 335.
11 The conventions provide that an agreement enters into force when all negotiatin

202.190.66.222 on Mon, 31 Jul 2023 08:18:24 +00:00
and may enter reservations that alter the terms of the

agreement. 12
Beyond these basic requirements, the Vienna Conventions do not
mandate any particular processes of negotiation or ratification. Thus,
each state is free to select its own method of ratifying agreements.
Given the diversity of methods, it may take several years before
and international organizations have expressed their consent to be bound, unless the agreeme
specifies otherwise. See I986 Vienna Convention, supra note 4, art. 24, reprinted in 25 I.L.M
at 559-60; I969 Vienna Convention, supra note I, art. 24, II55 U.N.T.S. at 338. States may
express their consent to be bound by signing the agreement, by exchanging instruments consti-
tuting a treaty, by ratifying the agreement, by acceding to the agreement (that is, by becoming
a party to the agreement after it has entered into force for other parties), or by any other means
agreed upon by the parties. See I986 Vienna Convention, supra note 4, arts. Ii-i6, reprinted
in 25 I.L.M. at 55I-55; I969 Vienna Convention, supra note i, arts. ii-i6, II55 U.N.T.S. at
335-36.
In practice, most agreements specify when and how they enter into force. For example,
some bilateral agreements specify that they enter into force upon signature by both parties. See,
e.g., Agreement Between the United States and Canada on Great Lakes Water Quality, Nov.
22, I978, art. XIV, 30 U.S.T. I383, 1397, T.I.A.S. No. 9257, at I5; Agreement on Cooperation
in the Field of Environmental Protection, May 23, I972, United States-USSR, art. 7, 23 U.S.T.
845, 850, T.I.A.S. No. 7345, at 6. Other bilateral agreements specify that they enter into force
upon the exchange of notes certifying that each party has completed its necessary "internal
procedures." See, e.g., Agreement on Cooperation for the Protection and Improvement of the
Environment in the Border Area, Aug. I4, I983, United States-Mexico, art. I9, T.I.A.S. No.
I0827, at 8.
For regional agreements between a relatively small number of state

enters into force only when all parties have ratified it. See, e.g., Conv
of the Rhine Against Chemical Pollution, Dec. 3, I976, art. I7, II24 U.N.T.S. 375, 4II
(requiring the ratification of all six parties). Regional agreements among many states and globa
agreements usually set a minimum number of required ratifications. See, e.g., Basel Convention
on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, opened
for signature Mar. 22, I989, art. 25, para. I, 28 I.L.M. 649, 676 [hereinafter Basel Convention]
(requiring the ratification of 20 parties); Barcelona Convention for the Protection of the Medi-
terranean Sea Against Pollution, Feb. i6, I976, art. 27, I5 I.L.M. 290, 296 (requiring the
ratification of six parties) [hereinafter Barcelona Convention]. When the minimum number of
ratifications has been achieved, the agreement enters into force only for those states that have
ratified it.
12 See I986 Vienna Convention, supra note 4, arts. I9-23, reprinted in 25 I.L.M. at 556-
59; I969 Vienna Convention, supra note i, arts. I9-23, II55 U.N.T.S. at 336-38; RESTATEMENT
OF FOREIGN RELATIONS, supra note 3, ? 313. See generally S. ROSENNE, DEVELOPMENTS,
supra note 3, at 424-36 (discussing the historical development of the law of reservations); I.
SINCLAIR, supra note 3, at 5I-78 (describing the traditional rules regarding reservations and the
provisions of the I969 Vienna Convention). Reservations are unusual in bilateral agreements;
reservations made at the time of signature normally would be incorporated into the final draft
of the agreement, and reservations made upon ratification are in effect a rejection of the old
agreement and a counter offer of a new agreement that the other party must accept and ratify.
See RESTATEMENT OF FOREIGN RELATIONS, supra note 3, ? 313 comment f. Reservations are
often an important part of the process of creating multilateral international agreements. States
generally formulate reservations upon ratification. See generally I. SINCLAIR, supra note 3, at
44-47 (describing the difficulties that arise when parties attach reservations to their ratification
and entry into force is conditioned upon ratification by a minimum number of states).

202.190.66.222 on Mon, 31 Jul 2023 08:18:24 +00:00
iggi] DEVELOPMENTS - INTERNATIONAL ENVIRONMENTAL LAW I525
enough parties ratify an agreement for it to enter into force. Although

every state that signs an agreement has an obligation to "refrain from
acts which would defeat the object and purpose of the [agreement]"
until it enters into force, 13 the details of this obligation remain vague. 14
Moreover, signatory states are not required to take affirmative actions
to comply with agreements that have not yet taken effect. Thus,
delay pending ratification can render environmental agreements inef-
fective if the underlying environmental problem worsens or becomes
irreversible. 15 States occasionally even reverse their position and re-
fuse to ratify agreements they have negotiated. 16
The United States' ratification process illustrates how problems of
delay or reversal may arise. Because most multilateral environmental
agreements are article II treaties, not executive agreements,17 two-
thirds of the Senate must consent for the United States to ratify
them.18 In some instances, the Senate has explicitly rejected inter-
national agreements reached by the President.19 On other occasions,
13 i986 Vienna Convention, supra note 4, art. i8, reprinted in 25 I.L.M. at 556; i969 Vienna
Convention, supra note i, art. i8, II55 U.N.T.S. at 336.
14 See RESTATEMENT OF FOREIGN RELATIONS, supra note 3, ? 3I2 comment i (noting that
"[it is often unclear what actions would have [the] effect [of defeating the object and purpose
of the agreement]").
15 See Sand, International Cooperation: The Environmental Experience, in PRESERVING THE
GLOBAL ENVIRONMENT 236, 250-5I (J. Mathews ed. i99i).
16 In the recent negotiations of the Convention on the Regulation of Antarctic Mineral
Resource Activities (CRAMRA), June 2, i988, 27 I.L.M. 869, for example, the parties took six
years to reach agreement. Due to lobbying by environmental groups, two key signatories -
Australia and France - have indicated that they will not ratify the Convention. See Shapely,
Polar Thinking on the Antarctic, N.Y. Times, Oct. I7, i989, at A27, col. 2. The Convention
was adopted by consensus of the 20 participating states and will enter into force when ratified
by i6 of those states. This number must include all seven states with original territorial claims
in Antarctica. Because Australia and France are both claimant states, CRAMRA will not enter
into force without their ratification. See CRAMRA, supra, art. 62, 27 I.L.M. at 896; Laws,
The Antarctic Minerals Regime Negotiations, in NINE CASE STUDIES IN INTERNATIONAL EN-
VIRONMENTAL NEGOTIATION I2I, I32 (L. Susskind, E. Siskind & J. Breslin eds. I990) [here-
inafter NINE CASE STUDIES].
17 For a general discussion of the origins of and differences between article II treaties a
executive agreements, see L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION I29-88
(I972). Some commentators have suggested that executive agreements might be better suited
for environmental problems. See, e.g., Stewart & Wilshusen, U.S.-Canadian Negotiations on
Acid Rain, in ACID RAIN AND FRIENDLY NEIGHBORS: THE POLICY DISPUTE BETWEEN CANADA
AND THE UNITED STATES 6i, 69-70 (J. Schmandt & H. Roderick eds. I985) [hereinafter ACID
RAIN AND FRIENDLY NEIGHBORS]. Some executive agreements, however, require implementing
legislation before they take effect under United States law, and even "self-executing" executive
agreements can be superseded by subsequent congressional legislation. See L. HENKIN, supra,
at I85-86. Cooperation between the President and Congress is therefore essential to both article
II treaties and executive agreements. As a result, the use of executive agreements will not solve
the problems inherent in the United States' ratification process.
18 See U.S. CONST. art. II, ? 2, cl. 2.
19 For example, the Senate rejected the League of Nations Agreement supported by President

202.190.66.222 on Mon, 31 Jul 2023 08:18:24 +00:00
the President has not attempted to obtain the Senate's consent to a

treaty in light of indications that the treaty would be rejected.20 More
often, the Senate has imposed conditions on its consent to ratifica-
tion.21 A condition may require the President to formulate a reser-
vation,22 in which case the United States can become a party to the
agreement only if other parties accept the reservation.23 The formu-
lation of such a reservation may reopen political issues resolved during
the original negotiations.24 Thus, the United States' ratification pro-
cess not only may delay the entry into force of an agreement, but also
may jeopardize its very existence.25
Wilson. See J. STOESSINGER, CRUSADERS AND PRAGMATISTS: MOVERS OF MODERN AMERICAN

FOREIGN POLICY 2I-27 (I979).
20 For instance, President Carter put aside efforts to obtain Senate approval of the Strategic
Arms Limitations Treaty (SALT II) because, in light of the Soviet invasion of Afghanistan, it
was unlikely the treaty would be ratified. See Oberdorfer, U.S. Is Ready for ist Round of
Missile Talks, Wash. Post, Sept. 8, I980, at A29, col. I.
21 See L. HENKIN, supra note I7, at 133-34. The Senate's power to impose conditions on
its consent was established in Haver v. Yaker, 76 U.S. (9 Wall.) 32, 35 (I870). The most
controversial "reservation" to an environmental agreement occurred in the Convention for the
Diversion of the Waters of the Niagara River, Feb. 27, I950, United States-Canada, I U.S.T.
694, T.I.A.S. No. 2I30. Canada accepted the reservation. See L. HENKIN, supra note I7, at
I34-35; see also Henkin, The Treaty Makers and the Law Makers: The Niagara Reservation,
56 COLUM. L. REV. II5I, II54-58 (I956) (quoting the relevant portions of the treaty and the
diplomatic exchanges).
22 See RESTATEMENT OF FOREIGN RELATIONS, supra note 3, ? 314 comment b.
23 When another state makes a reservation to an agreement to which the United States is a
party, the United States cannot accept the reservation without the Senate's consent. However,
for multilateral agreements, the Senate's consent may be inferred from its tacit acceptance of
the President's acquiescence to the reservation. See id. ? 314 comment c.
24 Some scholars downplay the importance of this problem. See, e.g., L. HENKIN, CONSTI-
TUTIONALISM, DEMOCRACY, AND FOREIGN AFFAIRS 5I (I990) ("The world has grown accus-
tomed to - but not much happier with - [the United States'] treaty process."). i
25 Past trade agreements demonstrate two attempts to solve the problems resulting from the
United States' ratification process. Congress could pass a resolution authorizing the President
to negotiate and enter agreements without subsequent congressional approval. See, e.g., The
Reciprocal Trade Agreement Act of I934, ? 350, I9 U.S.C. ? I35I (i988). Such a "blank check"
approach would eliminate delay, but at the price of completely excluding Congress from the
negotiations. Given its experience with trade agreements, however, Congress most likely would
be unwilling to pay this price in the context of environmental agreements. See Koh, Congres-
sional Controls on Presidential Trade Policymaking After I.N.S. v. Chadha, i8 N.Y.U. J. INT'L
L. & POL. II9I, II97-I200 (i986) (describing Congress's reluctance to give President Kennedy
unfettered authority to negotiate trade agreements).
Another possible solution to the problems inherent in the United States' ratification process
is the "fast-track" approach. This approach is designed both to force Congress to act quickly
in approving or disapproving agreements and to eliminate Congress's ability to modify agree-
ments. Under this approach, as currently formulated in the Trade and Tariff Act of i984, the
President must submit any proposed agreement to the House Ways and Means Committee and
to the Senate Finance Committee at least 90 days before entering the agreement. Unless either
committee objects within 6o days, the agreement is then put before both houses for a vote with
no discussion and no opportunity to amend the agreement. See The Trade and Tariff Act of

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Before the issue of ratification even arises, states must decide how
to conduct negotiations. For example, states must determine voting
procedures and decide which scientific or technical information they
will accept. They also must determine the form and scope of the
agreement, whether they will negotiate independent issues simulta-
neously, and how specific an agreement they will attempt to reach.
The negotiations of the Law of the Sea Convention26 demonstrate
that these choices have considerable impact on the success of the
negotiations and the effectiveness of the ultimate agreement. In I973,
after three years of preparatory work, the Third United Nations Con-
ference on the Law of the Sea began to negotiate a comprehensive
agreement intended to govern all use of the oceans. At the organi-
zational meeting, a dispute arose over the procedural rules to be used
during the negotiations.27 When the dispute was finally resolved in
June I974, the parties adopted the United States' proposal that a two-
thirds majority vote be required on "substantive questions."28 This
provision allowed a coalition of Landlocked and Geographically Dis-
advantaged States to block decisions on, for example, the extent of
coastal states' rights to use the ocean bordering their coastlines.29
As the Law of the Sea experience shows, choosing an inefficient
decisionmaking process can stall negotiations.30 More important, ne-
gotiations may fail if the parties ambitiously seek to negotiate a single,
comprehensive agreement. It may be more effective to reach several
I984, ? 248, I9 U.S.C. ?? I330(d)(4), 2I92(a)(I)(A), 2253(c) (I988); see also Koh, supra, at I2I2-
I3 (describing the "fast-track" approach).
The "fast-track" approach appears to be an effective way of eliminating reservations and
lengthy delays. However, it gives enormous power to the members of these two committees;
because an objection by either committee is likely to doom the agreement, the President often
will feel obliged to consult with these members during the negotiations. See Koh, supra, at
I2I3-2I. Even if the committees approve of the expedited vote, either house still can kill the
agreement by a majority vote.
26 United Nations Convention on the Law of the Sea, opened for signature Dec. IO, I982,
U.N. Doc. A/CONF.62/I22, repTinted in 2I I.L.M. I26I [hereinafter Law of the Sea Conven-
tion].
27 See Miles, The Structure and Effects of the Decision Process in the Seabed Committee
and the Third United Nations Conference on the Law of the Sea, 3I INT'L ORG. I59, i8o-8i
(I977).
28 Id. at I8I-83.
29 See id. at I84-85.

30 At the time, one expert predicted that the "complex, cumbersome, and inefficient decision
system" used in the Law of the Sea negotiations gave future negotiations a high probability of
failure. Id. at I59. The negotiations continued until I982, when I59 states signed the Conven-
tion. The United States did not sign the Convention, however, and other important signatories
- Great Britain and West Germany - refused to ratify it. See Sebenius, Crafting a Winning
Coalition: Negotiating a Regime to Control Global Warming, in GREENHOUSE WARMING: NE-
GOTIATING A GLOBAL REGIME 69, 7I (I99I) [hereinafter GREENHOUSE WARMING]. As of I990,
more than 20 years after work began, the Convention still had not entered into force.

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agreements on narrow issues than to attempt to negotiate one com-

prehensive agreement and risk reaching no agreement at all.3' As one
commentator observed, the decision to negotiate everything simulta-
neously was "the major error of the whole enterprise."32
The difficulties of the Law of the Sea negotiations, together with
the apparent success of the Montreal Protocol33 negotiations, gener-
ated enthusiasm for an alternative approach to multilateral environ-
mental agreements - the convention-protocol approach.34 Unlike the
comprehensive agreement pursued in the Law of the Sea negotiations,
the convention-protocol approach does not attempt to resolve all sub-
stantive issues in a single set of negotiations. Rather, it segregates
the negotiation of separate issues into separate agreements. States first
adopt a framework convention that calls for cooperation in achieving
broadly-stated environmental goals.35 The parties to the convention
then negotiate separate protocols, each containing specific measures
designed to achieve those goals.36
The use of the convention-protocol approach to multilateral envi-
ronmental agreements is not new. In the mid-i97os and early I98os
it was used in a series of regional agreements pertaining to pollution
of shared water systems.37 More recently, it was used in the I989
Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and Their Disposal,38 and officials of the United
Nations Environment Programme (UNEP) and world leaders have
31 See Sebenius, supra note 30, at 71.

32 Miles, supra note 27, at 232.
33 Montreal Protocol on Substances That Deplete the Ozone Layer, opened for signature
Sept. i6, I987, 26 I.L.M. I54I [hereinafter Montreal Protocol] (entered into force Jan. i, I989).
34 As one commentator has noted, the convention-protocol approach "to address climate
change has practically assumed the status of conventional wisdom." Sebenius, supra note 30,
at 70.
35 See, e.g., Vienna Convention for the Protection of the Ozone Layer, opened for signat
Mar. 22, I985, art. 9, 26 I.L.M. 1529, I532-33 [hereinafter Vienna Ozone Convention] (enter
into force Sept. i, I988).
36 See, e.g., Montreal Protocol, supra note 33, which was adopted pursuant to the Vienn
Ozone Convention, supra note 35. Generally, the convention contains specific provisions creatin
the framework for the adoption of protocols. Often a proposed protocol must be submitted
the Secretariat well in advance of a regular meeting; the Secretariat then sends the proposal
the other parties a certain amount of time (for example, six months) before the meeting. S
e.g., Vienna Ozone Convention, supra note 35, arts. 8, 9, 26 I.L.M. at 1532. At the meetin
the parties discuss the proposal and try to reach agreement by consensus. If they cannot re
a consensus, those parties present can vote to adopt the protocol (a supermajority, such as thre
fourths or two-thirds, is usually required). See, e.g., Vienna Ozone Convention, supra note 3
art. 9, 26 I.L.M. at 1533.
37 See, e.g., Barcelona Convention, supra note ii; Kuwait Regional Convention fo
operation on the Protection of the Marine Environment from Pollution, Apr. 24, 1978, 17
501; Convention for the Protection and Development of the Marine Environment of th
Caribbean Region, Mar. 24, I983, 22 I.L.M. 221.
38 See Basel Convention, supra note ii.

202.190.66.222 on Mon, 31 Jul 2023 08:18:24 +00:00
called for the negotiation of a framework convention and subsequent

protocols to combat global warming.39 However, special character-
istics of environmental problems may render the convention-protocol
approach ineffective for creating future environmental agreements.
B. Special Characteristics of Environmental Problems
i. The Interaction of Science and Politics. - Environmental

agreements differ from many other types of agreements because they
respond to scientific evidence of a problem. The unique role of sci-
entific evidence places conflicting demands on the negotiation process:
negotiators need sufficient data to understand the problem and to
formulate effective solutions, but they may have to act quickly to
prevent the problem from worsening or becoming irreversible.40 Be-
cause scientific evidence is always somewhat uncertain, and because
research is expensive and time-consuming, states face a dilemma: to
act in the face of uncertainty or not to act at all.
As the United States-Canada acid rain negotiations demonstrate,
failure to resolve this dilemma is often equivalent to inaction. In I980
the states signed a Memorandum of Intent4l to negotiate a bilateral
agreement to combat transboundary air pollution and to take interim
measures for the same purpose. Despite this promising beginning,
negotiations quickly stalled.42 Canada asserted that the states needed
to adopt interim measures to protect the environment from irreversible
damage while scientists conducted further research; the United States
maintained that it would be better to invest limited resources in more
research than to adopt costly regulation43 that might not solve the
problem.44 Thus, the United States doubled its spending on acid rain
39 See, e.g., United Nations Environment Programme: Governing Council Decision on Global
Climate Change, May 25, I989, 28 I.L.M. 1330, 1333; see also Wirth & Lashof, Beyond Vienna
and Montreal - Multilateral Agreements on Greenhouse Gases, in GREENHOUSE WARMING,
supra note 30, at 13, 16-17 (quoting statements by world leaders that a framework convention
on global climate change is necessary).
40 See R. BENEDICK, OZONE DIPLOMACY: NEW DIRECTIONS IN SAFEGUARDING THE PLANET
201 (199I).
41 Memorandum of Intent Between the United States and Canada Concerning Transboun-
dary Pollution, Aug. 5, I980, 32 U.S.T. 2521, 2524, T.I.A.S. No. 9856, at 4.
42 In I982 Canada proposed that each state reduce its sulphur dioxide emissions by 50% by
I990; the United States rejected this proposal then and again in I983. See Stewart & Wilshusen,
supra note 17, at 65-66.
43 In I985 the costs of proposed legislation were estimated to be between three and six billion
dollars per year. See OFFICE OF TECHNOLOGY ASSESSMENT, ACID RAIN AND TRANSPORTED
AIR POLLUTANTS 3 (i985).
44 See Stewart & Wilshusen, supra note I7, at 68. Areas of scientific uncertainty included
the extent of current damages, the nature of future damages, the degree to which emissions in
one region caused deposits in another region, and the effectiveness of any strategy to reduce
damage in one region by limiting emissions in another. See OFFICE OF TECHNOLOGY ASSESS-
MENT, supra note 43, at 32-36; see also DeRidder, The Nature and Effects of Acid Rain: A

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research in I983'45 but neither reached an agreement with Canada

nor adopted interim measures.
States must develop methods of dealing with uncertainty that do
not always result in delay and inaction. One common method of
dealing with uncertainty is to apply an expected-value calculation.46
For example, oil companies often must decide whether to drill when
they are uncertain if a given site contains oil. Assume the cost of
drilling is $5000 per well, the probability of striking oil is ten percent
for each well, and the value of an oil-producing well is $ioo,ooo. If
an oil company drills ioo wells at a total cost of $500,000, it will on
average strike oil ten times for a total value of $i,ooo,ooo. Under
these circumstances the company's net profit would be $5oo,ooo. Be-
cause the project has a positive expected value, the company should
drill the ioo wells.
In the context of environmental regulation, an expected-value cal-
culation would require states to estimate the magnitude of damage
resulting from an environmental problem and to multiply that estimate
by the estimated probability that the damage will occur. States would
then compare the expected value of the damage to the costs of pre-
venting or reducing the problem and try to achieve a solution that
minimizes total costs plus damages.47 It is often difficult, however,
to quantify precisely the harm to environmental resources. Many
estimates refer to the impact on industrial activities; for example,
government estimates of the damage caused by acid rain are based
Comparison of Assessments, in ACID RAIN AND FRIENDLY NEIGHBORS, supra note I7, at 31
45, 58-59 (specifying areas of agreement and disagreement over cross-border contributions to
acid deposition); Meyers, Acid Deposition: A Search for Solutions, in ACID RAIN CONTROL:
THE COSTS OF COMPLIANCE 5-6 (D. Gilleland & J. Swisher eds. I985) (noting the lack of
quantitative precision by which to devise a proper strategy to reduce emissions).
45 See Stewart & Wilshusen, supra note 17, at 66.
46 See, e.g., F. HILLIER & G. LIEBERMAN, OPERATIONS RESEARCH 597-60I (2d ed. 1974).
47 For example, suppose that if there is no reduction in fossil fuel emissions, acid rain will
cause damage of $i,ooo,ooo with probability 0.3 and damage of $2,o00,o0o with probability
o.6 and no damage will occur with probability o.i; if emissions are reduced by 5o% at a cost
of $5oo,ooo, damage of $i,ooo,ooo will occur with probability o.s, $2,ooo,000 with probability
0.2, and no damage with probability o.3; and if emissions are reduced by 9o% at a cost of
$I,200,000, damage of $I,000,000 will occur with probability 0.2, $2,000,000 with probability
O.I, and no damage with probability 0.7. The expected value of environmental damage is
$1,500,000 in the first case, $goo,o00 in the second, and $400,ooo in the third. The best solution
is to reduce emissions by 50%, because this minimizes the total expected damage and costs
($1,400,000 in this case).
Reduction Cost Expected Damage Total Cost + Damage

none 0 $1,500,000 $1,500,000
50% $500,0o0 $900,000 $I,400,0Q0
90% $1,200,000 $400,000 $I,600,000

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on its effect on income derived from industries such as agriculture

and lumber.48 Yet such estimates do not take into account nonecon-
omic damage to environmental resources, such as the loss of recrea-
tional use and aesthetic value.49
Another objection to the use of expected-value calculations is that
such calculations are most effective when applied to many identical
decisions, but environmental problems often require "one-shot" solu-
tions. For example, an oil company can decide many times whether
to drill for oil. If it fails to strike oil on the first try, it can still be
confident that in the long run it will make a profit if the expected
value of the project is positive; conversely, if it decides not to drill
and later research reveals a greater probability of striking oil, little
has been lost - the oil is still there. Unlike oil companies, states
facing environmental problems are not repeat players. If states fail
to address problems such as global warming or the extinction of a
species, there will be no second chance to undo environmental dam-
age.
These difficulties in applying expected-value calculations often lead
states to postpone negotiations in the hope that more scientific research
will eliminate the uncertainty.50 Such delay may be acceptable when
the benefits of more information outweigh the research and delay
costs.51 When states deal with problems that pose threats of irre-
versible harm to the environment, however, delay for the sake of
research that may produce only slight informational gains is unjusti-
fiable.52
48 See OFFICE OF TECHNOLOGY ASSESSMENT, supra note 43, at 89-90.

49 Cf. Anderson, The Ethical Limitations of the Market, 6 ECON. & PHIL. I79, 202-03
(I990) (discussing the argument that market value is not an appropriate measure of the value
of some goods because trading the good in a market economy alters the way it is used).
50 For example, the United States took this position in its acid-rain negotiations with Canada.
See supra p. I529.
51 Oil companies, for example, may rationally decide to postpone drilling until better est
mates of the probability of striking oil can be made. See F. HILLIER & G. LIEBERMAN, supra
note 46, at 609-I0.
52 Other commentators also question the value of delay:
More research will not . . . allow us to discover "the answer" to the policy questions of
acid rain. Even if . . . all the pure scientific uncertainties were resolved tomorrow, the
economic and political questions would still remain. Research can help guide policy-
makers part of the way towards resolving these uncertainties; it is no substitute for hard
policy choices.
Schmandt, Roderick & Morriss, Acid Rain Is Different, in ACID RAIN AND FRIENDLY NEIGH-
BORS, supra note I7, at 7, I7. Another expert, examining the advisory role of the Scientific
Committee on Antarctic Research, found that "[i]t has allowed the decisions-makers to divest
themselves of the responsibility for the decisions which should be theirs, and theirs alone, to
take and has pushed that responsibility onto the scientific method .... [T]he scientific method
cannot sustain such a responsibility." Heap, The Role of Scientific Advice for the Decision-
Making Process in the Antarctic Treaty System, in ANTARCTIC CHALLENGE III, at 2I, 23 (R.
Wolfrum ed. I988).

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Even when states do attempt to address environmental problems,

they face a wide range of estimates of the resulting environmental
damage. Seeking to minimize the costs of regulation, some states may
insist upon the estimates at the lower end of the range. If subsequent
international agreements are based on these estimates, they will rep-
resent lowest-common-denominator solutions to environmental prob-
lems that systematically yield underregulation.53 Thus, states should
resist the tendency to compare the relatively certain and easily quan-
tifiable costs of environmental regulation with the most optimistic
predictions of damage.54 This is not to suggest that states should take
all steps, no matter how costly, to prevent the worst-case scenario.
Rather, they should make policy choices in light of all available in-
formation - the full range of estimates of environmental harm as
well as the probability that these estimates are correct - recognizing
that the costs of environmental regulation will reduce or eliminate the
possibility of damage.
Conflicting estimates of environmental damage result not only from
scientific uncertainty, but also from politics.55 States often rely on
estimates that support special interests unrelated to environmental
preservation.56 One way to narrow the range of estimates is to entrust
research to scientists perceived to be neutral and objective. Interna-
tional organizations and non-governmental organizations (NGOs) can
play an important role in this respect.57 In the Law of the Sea
53 See Sand, supra note I5, at 240-50; Wirth & Lashof, supra note 39, at 22. Suppose, fo
example, that acid rain damages and costs of solutions are the same in each state and state
believes the expected value of acid rain damage to be $i,ooo,ooo, state B $8oo,ooo, and state
C $700,000. Because state C can refuse to enter into any agreement that calls for reductio
in fossil fuel emissions that cost more than $700,000, the states will adopt the "lowest-common
denominator" agreement calling for reductions that cost $700,000 (unless A and B agree to mak
payments to C or to have different reduction requirements for each party).
54 See R. BENEDICK, supra note 40, at 204-05.
55 During the early years of the Law of the Sea negotiations, for example, "technical expe
. . were tightly controlled by their delegations. ... [Repeated assertions about the necessi
of facilitating disinterested scientific investigations of the world ocean were consistently de
This was a fight to redistribute ownership and control over world ocean resources and sc
was seen to be a weapon in this fight." Miles, supra note 27, at 153-54.
56 For example, some of the scientific research on acid rain presented to the House Subcom-
mittee on Health and the Environment was conducted by the Electric Power Research Institute,
an industry-based research group that "urge[d] no immediate implementation of S02 and NOx
emissions control measures" because of "[ilts position that regulatory decisions should be based
only on quantifiable results." Albin & Paulson, Environmental and Economic Interests in
Canada and the United States, in ACID RAIN AND FRIENDLY NEIGHBORS, supra note I7, at
I38, I47-48.
57 At least one agreement has expressly recognized the importance of partici
national and non-governmental organizations. The Convention on Internatio
dangered Species of Wild Flora and Fauna, opened for signature Mar. 3, I973
T.I.A.S. No. 8249, 993 U.N.T.S. 243 [hereinafter CITES] (entered into force

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negotiations, for example, negotiators made little progress on technical

issues such as the costs of deep seabed mining until an independent
group of scientists from the Massachusetts Institute of Technology
presented a model that enabled the negotiators to surmount the ob-
stacles posed by these issues.58
Although international organizations and NGOs may facilitate
more objective scientific research, such organizations are not immune
from politics. They may at times hinder negotiations in pursuit of
their own agendas. During the negotiations of the I989 amendment
to the Convention on International Trade in Endangered Species of
Wild Flora and Fauna (CITES),59 for example, the "uncompromising,
doctrinaire, and often shrill expression of [the] interests [of the Hu-
mane Society of the United States and Wildlife Conservation Inter-
national] made compromise and work with other parties . . . difficult
if not impossible."60 A similar problem has arisen in negotiations of
treaties regarding Antarctica. As one commentator noted, "officials
. . . are in a state of more or less perpetual irritation with the
environmentalists for what is often seen as their demand for absolutes,
their unwillingness or inability to comprehend the reality of interna-
tional politics, and the processes of negotiation among sovereign
states."61 Thus, if such organizations are to be successful, their re-
search must be perceived as independent, credible, and accessible.62
Another way to facilitate neutral scientific research is to promote
collaboration among scientists of different states by establishing inter-
national scientific committees. For example, the Executive Director
of UNEP, Mostafa Tolba, convened a group of experts that met six
times before the negotiations leading to the I989 Basel Convention.63
Similarly, the International Panel on Climate Change (IPCC) has a
scientific panel that has been studying global warming in preparation
for the I992 conference in Brazil. To the degree that international
allows the United Nations, its specialized agencies, the International Atomic Energy Agency,
and "[a]ny body or agency technically qualified in protection, conservation or management of
wild fauna and flora" - whether they be governmental agencies or national or international
NGOs - to have observers participate in (but not vote at) the regularly scheduled meetings of
the parties. Id. art. XI, paras. 6 & 7, 27 U.S.T. at II05, T.I.A.S. No. 8249, at I9, 993
U.N.T.S. at 252.
58 See J. SEBENIUS, NEGOTIATING THE LAW OF THE SEA, 27-40 (I984).
59 See supra note 57. For a series of articles analyzing CITES, see 5 B.U. INT'L L.J. 225-
36I (I987).
60 Arend, Ivory, Elephants, or Both: Negotiating the Transfer of the African Elephant to an
Appendix II Within CITES, in NINE CASE STUDIES, supra note I6, at 99, io8.
61 P. QUIGG, A POLE APART I79 (I983).
62 Apparently this was a large factor in the acceptance of the MIT model by the Law of th
Sea negotiators. See J. SEBENIUS, supra note 58, at 52.
63 See Hilz & Radka, The Basel Convention on Transboundary Movement of Hazardous
Wastes and Their Disposal, in NINE CASE STUDIES, supra note I6, at 75, 77.

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I534 HARVARD LAW' RE VIEW [Vol. I04: I484
scientific committees in fact rely upon the

however, they may lack the necessary independence and credibility.
2. The Use of Global Commons. - Another characteristic that
distinguishes many environmental agreements from other agreements
is that environmental agreements involve global commons - shared
resources or resources that affect the international community as a
whole. Because the management of such resources often requires
international cooperation, it raises problems of states that render in-
ternational agreements ineffective by refusing to cooperate (hold-outs)
and states that enjoy the benefits of international regulation while
refusing to share the costs of regulation (free riders).65 Hold-out prob-
lems are especially acute in the environmental context because hold-
out states can not only prevent other states from reaching effective
agreements, but also exacerbate the underlying environmental
threat.66
There are three types of global commons, each of which raises
different regulatory challenges. The first consists of resources such as
the tropical rain forests in Brazil and the herds of elephants in Africa
that are contained within the territorial boundaries of one state or
group of states but have an impact on the global environment. The
destruction of the Brazilian rain forests could alter global tempera-
tures, for example, and the extinction of African elephants would
diminish the rich diversity of the earth's wildlife. Some scholars argue
that the best way to preserve such resources is to privatize them.67
Others believe that these resources belong to the possessor states to
manage as they please.68 Recently, however, possessor states have
64 For example, three of the four scenarios of future greenhouse gas emissions used through-
out the IPCC report were constructed with two models - one developed by the United States
Environmental Protection Agency, the other by the Netherlands National Institute for Public
Health and Environmental Protection - at a meeting attended by representatives of only those
two states. See EXPERT GROUP ON EMISSION SCENARIOS, RESPONSE STRATEGIES WORKING
GROUP, INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, EMISSIONS SCENARIOS 2 (I990).
65 Free-rider problems are a familiar concept in microeconomics. See, e.g., S. MAURICE &
0. PHILLIPS, ECONOMIC ANALYSIS: THEORY AND APPLICATIONS 607-o8 (5th ed. i986); H.
VARIAN, INTERMEDIATE MICROECONOMICS: A MODERN APPROACH 569-70, 574-76 (I987).
66 Unlike hold-outs, free riders do not jeopardize the effectiveness of an agreement; they
simply shift their share of the costs of environmental regulation to other parties. Thus, it is
pointless to induce free riders to share the costs with offers of financial assistance. Domestic
and international political pressure may be the best means to persuade would-be free riders to
bear their part of the burden. In some cases, it may be better to tolerate free riders than to
have no agreement at all.
67 See, e.g., Block, Environmental Problems, Private Property Rights Solutions, in Eco-
NOMICS AND THE ENVIRONMENT 282, 309-I8 (W. Block ed. I990) (arguing that "the case for
elephant privatization is airtight"). But see Glennon, Has International Law Failed the Ele-
phant?, 84 AM. J. INT'L L. I, 5-6 (I990) (arguing that, due to market failure, regulation is
necessary to save the elephant).
68 For example, until I989 Brazil resisted foreign involvement in the Amazon rain forests,
and even when President Sarney agreed to debt-for-nature swaps, military leaders in Brazil still

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been more willing to take the position that such resources are part of
the "common heritage of mankind" and thus belong to the world
community; in return, these states have demanded that the world
community share the costs of protecting these resources by granting
financial and technical assistance.69 Hold-outs from such arrange-
ments may undermine the effectiveness of protecting these resources
through international agreement. For example, the effectiveness of
an amendment to CITES70 designed to protect African elephants from
ivory poachers has been jeopardized by the refusal of five African
states to abide by the amendment.71
The second type of global commons is unallocated commons
resources such as Antarctica and parts of the oceans in which no state
has property rights. For such resources, the main issue is not whether
their use should be subject to international regulation but who should
control such regulation. In the I970s, for example, technological ad-
vances raised the possibility of exploiting Antarctica's marine and
mineral resources, which led to the negotiation of the Convention on
the Conservation of Antarctic Marine Living Resources (CCAMLR)72
and the Convention on the Regulation of Antarctic Mineral Resource
Activities (CRAMRA).73 The parties to these negotiations were the
consultative parties to the I959 Antarctic Treaty.74 The primary issue
voiced the opinion that "[e]verytime someone in the U.S. says the Amazon belongs to mankind,
it becomes more difficult here to have a rational discussion." Simons, Brazil Agrees to Accept
Aid to Save Rain Forests, N.Y. Times, Feb. 5, I989, at 3, col. 2 (city ed.).
69 See, e.g., Glennon, supra note 67, at 28 ("'That Tanzania has a rich wildlife resource is
an accident of geography. It belongs to all mankind. The international community should
therefore contribute to its survival."' (quoting address by President Ali Hassan Mwinyi of
Tanzania)); see also M. PETERSON, MANAGING THE FROZEN SOUTH II9-22 (I988) (describing
attempts by African states to have Antarctica declared the "common heritage of mankind" by
United Nations resolution). See generally Francioni, Antarctica and the Common Heritage of
Mankind, in INTERNATIONAL LAW FOR ANTARCTICA IOI, IOI-I7 (F. Francioni & T. Scovazzi
eds. I987) (describing the history of the "common heritage of mankind" principle with respect
to Antarctica and its status under international law). Even a Brazilian official recently agreed
that "[t]here is room for international cooperation" in efforts to preserve the Amazon rain forests.
Simons, supra note 68.
71 See Glennon, supra note 67, at I7, 22-28. Proponents of the amendment wanted to shift
the African elephant to the list of most-protected species, a move that would have banned all
international ivory trade. Southern African states - those with well-managed herds that could
continue to support limited ivory trade - opposed the amendment; they supported a "split-
listing" proposal that would have permitted them to continue to manage their own herds and
to sell ivory. However, some eastern African states - those whose herds were on the verge of
extinction (Kenya, Tanzania, and Somalia) - favored the amendment. See Arend, supra note
6o, at I06-07. The amendment eventually passed, but unsurprisingly five of the southern
African states (South Africa, Zimbabwe, Zambia, Mozambique, Malawi, and Botswana) entered
reservations that exempt them from abiding by it. See Glennon, supra note 67, at I7.
72 May 20, I980, 33 U.S.T. 3476, T.I.A.S. No. I0240 (entered into force Apr. 7, I982).
73 June 2, I988, 27 I.L.M. 859.
74 Prior to I959, seven states (Argentina, Australia, Chile, France, Great Britain, New

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I536 HARVARD LAWREVIEW [Vol. 104:1484
raised by the negotiations of CCAMLR and CRAMRA was who

should decide how to regulate the use of Antarctica's natural resources.
The Law of the Sea experience made the parties to the Antarctic
Treaty wary of expanding the decisionmaking process to include more
states. 75 But these states were sensitive to arguments that Antarctica
is part of the "common heritage of mankind," and as such should be
regulated by an international agreement of all states.76 As a result,
the parties to the Antarctic Treaty attempted "to achieve a reasonable
trade-off between responsible trusteeship by the few and equitable
sharing among the many."77
The third type of global commons is "true commons" - resources
such as the atmosphere and the global climate that are not contained
in any one state and for which allocation of property rights remains
impossible. The regulation of true commons by international agree-
ment poses serious hold-out and free rider problems. For example,
because the technology of producing chlorofluorocarbons (CFCs) is
easily mastered, any agreement to reduce future CFC production
would be futile without the cooperation of highly populated states
such as China and India that will someday have a large demand for
CFCs and the technological capacity to produce CFCs.78
Zealand, and Norway) claimed territorial rights in Antarctica, some of which conflicted wit
one another. These claims were suspended under the I959 Antarctic Treaty, which was nego-
tiated by the seven claimant states, Belgium, Japan, the Soviet Union, and the United States
See Antarctic Treaty, Dec. I, I959, I2 U.S.T. 794, T.I.A.S. No. 4780, 402 U.N.T.S. 7I (entere
into force June 23, I96I). Since then more states have become parties to the treaty by accession.
Parties are now grouped in two categories: consultative parties (CPs) and non-consultative parties
(NCPs). CPs include the parties to the original agreement and parties that have met the articl
IX test of conducting "substantial scientific research activity" in Antarctica. NCPs are states
that acceded to the treaty but have not met the substantial scientific research test. CPs hav
the right to vote in negotiations of new agreements such as CRAMRA, whereas NCPs do not
Brazil, China, India, and Uruguay recently achieved CP status, bringing to 25 the total numbe
of CPs; there are currently I3 NCPs. See Laws, supra note I6, at I22-26.
75 See P. QUIGG, supra note 6i, at 4.
76 See, Note, Thaw in Internationtal Law? Rights in Antarctica under the Law of Common
Spaces, 87 YALE L.J. 804, 828-32 (I978). In fact, diplomats from excluded states such as Sri
Lanka and Peru have occasionally called for the United Nations to become involved in the
management of Antarctica. See P. QUIGG, supra note 6i, at I67-70. Parties to the Antarctic
Treaty are vulnerable to charges of hypocrisy because they require new parties to conduct
substantial scientific research to attain voting status, even though two original parties perform
no scientific research in Antarctica. See id. at 2I0; supra note 74.
77 P. QUIGG, supra note 6i, at 208. Participation in the Antarctic Treaty system has been
expanded in two ways: by increasing the number of parties with the power to vote in negotiations
of new agreements, see supra note 74, and by granting observer status to parties without the
power to vote. See Laws, supra note I6, at I29-30. Commentators have generally praised the
efforts of the Antarctic Treaty states to manage Antarctica in the best interests of all states.
See, e.g., P. QUIGG, supra note 6i, at 2I8; Francioni, supra note 69, at I34-35; Laws, supra
note i6, at I43.
78 Cf. Wirth & Lashof, Beyond Vienna and Montreal - Multilateral Agreements on Gr
house Gases, in GREENHOUSE WARMING, supra note 30, at I3, 22 ("[F]or some time ther

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Hold-out problems frequently necessitate lowest-common-denomi-

nator solutions that result in underregulation.79 The Montreal Pro-
tocol demonstrates one attempt to avoid this result. By imposing
higher regulatory requirements on industrial states than on developing
countries, negotiators reached an agreement that was acceptable to all
states and still provided for substantial CFC reductions.80 This
method of avoiding lowest-common-denominator solutions may be
effective as long as industrialized states are willing to bear an unequal
share of the cost of environmental regulation.
Theoretically, customary international law could reduce the prob-
lems hold-outs cause by creating rights and obligations for states that
do not join the agreement.81 For example, during the Law of the Sea
considerable concern about the reluctance of India and China to accept the obligations of [the
Montreal Protocol]. Without their participation, atmospheric chlorine levels would continue to
increase, and the likelihood of a return to pre-Antarctic hole atmospheric concentrations in the
foreseeable future would be virtually nil."). Similar hold-out problems may arise in the upcoming
negotiation of a global warming convention because China, India, and Brazil are key participants
in any such agreement. See Nitze, A Proposed Structure for an International Convention on
Climate Change, in GREENHOUSE WARMING, supra note 30, at 35.
79 See supra note 53 and accompanying text.
80 See Montreal Protocol, supra note 33, art. 5, 25 I.L.M. at I555.
81 The I969 Vienna Convention expressly preserves the possibility that customary law re-
flected in a treaty can create both rights and obligations for states which are not parties to the
treaty. See I969 Vienna Convention, supra note i, art. 38, II55 U.N.T.S. at 34I; see also
Caminos & Molitor, Progressive Development of International Law and the Package Deal, 79
AM. J. INT'L L. 87I, 879 (I985) (explaining that treaties can both codify existing rule and create
new law). The Vienna Convention is an example of such a treaty. See supra note 3. State
practice during the course of negotiations may also create customary law. See M. VILLIGER,
CUSTOMARY INTERNATIONAL LAW AND TREATIES 3-4 (I985). For the generally accepted
practices of states to become customary law, the practice must be continuously undertaken over
a sufficient period of time and regarded as binding. See Macrae, Customary International Law
and the United Nations Law of the Sea Treaty, 13 CAL. W. INT'L L.J. i8i, 202-04 (I983).
The practice need not be unanimous to qualify as "generally accepted." See id. at 203.
The most prominent cases addressing the creation of customary law during the negotiation
of treaties are the North Sea Continental Shelf Cases (W. Ger. v. Den., W. Ger. v. Neth.),
I969 I.C.J. 3 (Judgment of Feb. 20). In those cases, Denmark and the Netherlands argued
that West Germany was bound by article six of the I958 Geneva Convention on the Continental
Shelf because West Germany had accepted the rule in article six through its own conduct. See
id. at 4I. The International Court of Justice rejected this claim. See id. at 45. The court
recognized that the creation of a customary law rule by state practice during the negotiation of
treaties "is a perfectly possible [process] and does from time to time occur," but stated that "this
result is not lightly to be regarded as having been attained." Id. at 4I. First, the court doubted
whether article six was "of a fundamentally norm-creating character such as could be regarded
as forming the basis of a general rule of law." Id. at 42. Although "it might be that, even
without the passage of any considerable period of time, a very widespread and representative
participation in the convention might suffice," id., "[n]ot only must the acts concerned amount
to a settled practice, but they must also . . . be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law." Id. at 44. The court held that Denmark and the
Netherlands failed to provide evidence that the states concerned felt legally compelled to act as
they did. See id. at 44-45.

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negotiations, many states adopted the practice of declaring 200-mile

"Exclusive Economic Zones" (EEZs) in which they have exclusive
rights to offshore resources.82 Some scholars now contend that states
have a right under customary international law to declare 200-mile
EEZs regardless of whether they sign the Law of the Sea Convention
or whether it ever enters into force.83 The United States maintains
this position as well; citing the existence of a right under customary
international law, President Reagan proclaimed an EEZ for the United
States in I983 even though the United States was not a party to the
convention.84
However, it is unlikely that the application of customary interna-
tional law will prevent hold-out problems in most environmental ne-
gotiations. Although states may be willing to accept the creation of
general rights such as EEZs by customary law, they may resist the
imposition of specific obligations. Furthermore, there is little custom-
ary international law to be codified regarding the global environment,
and it is unlikely that states will develop a consistent practice of
managing global commons during negotiations. Finally, because ob-
ligations under a global environmental agreement are likely to be part
of a "package deal" of compromises between industrial states and
developing countries,85 any assertion that some elements of that pack-
age have become customary law through state practice while others
have not threatens to upset the balance of interests achieved by the
negotiations. 86
82 See Law of the Sea Convention, supra note 26, part V, reprinted inl 2I I.L.M. at I280-
84. As of I986, 73 nations had declared EEZs of some sort. For a compilation of these
documents, see R. SMITH, EXCLUSIVE ECONOMIC ZONE CLAIMS: AN ANALYSIS AND PRIMARY
DOCUMENTS 6I-498 (I986).
83 See, e.g., Caminos & Molitor, supra note 8I, at 888; Macrae, supra note 8I, at 2
generally B. KWIATKOWSKA, THE 200 MILE EXCLUSIVE ECONOMIC ZONE IN THE NEW
OF THE SEA 27-37 (I989) (describing the opini3ns of various authors on the status of E
the reasons for divergence in their opinions).
84 See Proclamation 5030, Exclusive Economic Zone of the United States of America, Mar.
IO, I983, 22 I.L.M. 464, 465 [hereinafter Proclamation 5030].
85 The Law of the Sea Convention is one such package deal. See Caminos & Molitor, supra
note 8i, at 873-78.
86 Such a controversy arose concerning the various provisions of the Law of the Sea C
vention. The United States asserted that provisions in the Law of the Sea Convention regar
deep seabed mining do not reflect customary law, but that the provisions regarding EEZs
See Proclamation 5030, supra note 84, 22 I.L.M. at 465, and accompanying statement by
President, id. at 465 ("Deep seabed mining remains a lawful exercise of the freedom of the
seas open to all nations."); see also RESTATEMENT OF FOREIGN RELATIONS, supra note 3, ?
comment b ("[Even] if states generally accept the principle that mining in the deep sea-be
permitted only pursuant to the international regime established by the [Law of the Sea Conve
tion], the United States will not be bound by that principle, having continued to dissent f
it."). However, other states have taken the position that because the Law of the Sea Conven
was formulated as a package deal, it can attain the status of customary law only in its enti
(except for provisions that reflected customary law when the negotiations began). See
KWIATKOWSKA, supra note 83, at 35-37. The Soviet Union is such state. See id.

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A more reliable method of solving hold-out problems is to provide

incentives for potential hold-out states to enter the agreement. The
Montreal Protocol illustrates the use of positive incentives to enter the
agreement and disincentives to hold out. It provides for technical
assistance to states that enter the agreement and calls for trade sanc-
tions against states that do not participate.87 The ratification of the
Montreal Protocol by developing countries such as Kenya, Nigeria,
and Uganda indicates that these measures can effectively induce states
to enter negotiations and ultimately join the agreement.
Incentives based on financial or technical assistance may not al-
ways prove effective, however. United States representatives at the
Montreal Protocol negotiations feared that financial assistance provi-
sions would set a costly precedent: if developing countries were
"bribed" to enter the ozone agreement, a much larger bribe would be
required to induce them to enter a global warming agreement.88
Moreover, bribes will not succeed when the hold-out state is not a
developing country that desires technical or financial assistance. Dis-
incentives to hold out may also fail - widespread use of trade sanc-
tions could lead to a trade war that would wreak havoc upon the
world economy. This danger is diminished when, as in the Montreal
Protocol, trade sanctions are limited to the materials regulated by the
agreement.89 Narrow sanctions also are easier to organize and thus
are more effective than more general trade sanctions.
Hold-out problems can sometimes be solved by linking otherwise
independent issues. For example, although the official policy of the
United States and Canada is not to link issues of separate negotia-
tions,90 there may have been an implicit relationship between a
concession by the United States in acid rain negotiations and Canada's
agreement to a five-year extension of the North American Air Defense
Agreement.91 Similarly, states could link participation in a global
warming regime to expansion of the Antarctic Treaty system.92 As
the Law of the Sea negotiations demonstrated, however, too much
issue linkage can make negotiations complex and unmanageable.93
3. The Interests of Future Generations. - Environmental policy
is designed in part to preserve the environment for future genera-
87 See Montreal Protocol, supra note 33, arts. 4 (trade sanctions) & io (technical assistan
26 I.L.M. at I554-55, I557; see infra pp. I567-68.
88 See Green Diplomacy: A Cool Look at Hot Air, ECONOMIST, June i6, I990, at I7, 20
[hereinafter A Cool Look at Hot Air].
89 See Montreal Protocol, supra note 33, art. 4, 26 I.L.M. at I554-55.
90 See Stewart & Wilshusen, supra note I7, at 72-73.
91 See Schroeer, Progress Toward Canadian-U.S. Acid Rain Control, in NINE CASE STUDIES,
supra note i6, at I77, I94; Kneese, The Politics of Acid Rain, Wall St. J., Apr. I0, I986
(Letters to the Editor), at 33, col. 2.
92 See infra note I54 and accompanying text.
93 See supra p. I527.

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I540 HARVARD LAWREVIEW [Vol. I04:I484
tions.94 Because future generations are n

of international agreements, members of the current generation must
represent their interests. The representation of future interests raises
two basic problems. First, it is difficult for members of the current
generation to measure the interests of future generations. Second,
states must decide who will make these value judgments on behalf of
future generations.
There are two extreme models of the obligation the current gen-
eration owes to future generations; both are incompatible with the
goal of reaching agreements to preserve the environment. At one
extreme is the preservationist model: the current generation must
preserve all resources for the future.95 This model would preclude an
industrial economy, which requires that the current generation con-
sume or degrade some resources.96 At the other extreme is the opulent
model: the current generation is entitled to exploit resources however
it wants. This model denies any obligations to future generations.97
Recently, commentators have proposed a third, intermediate
model: the theory of "intergenerational equity."98 This model is based
on the idea that states should determine intergenerational rights and
obligations from general principles, as if they did not know to which
generation they would belong.99 There are three basic principles of
intergenerational equity: each generation must conserve the diversity
of the base of natural and cultural resources ("conservation of op-
tions"); each generation must maintain the quality of the planet ("con-
servation of quality"); and each generation must provide its own mem-
bers with equal access to resources and must conserve this access for
members of future generations ("conservation of access"). 100 According
94 See, e.g., Barcelona Convention, supra note ii, I5 I.L.M. at 290 (preamble); Stockholm
Declaration on the Human Environment: Report of the United Nations Conference on the Human
Environment, U.N. Doc. A/CONF.48/I4 (I972), reprinted in ii I.L.M. I4I6, I4I6-I7. Such
provisions reflect the notion that we are stewards of the world and consequently have an
obligation to leave it inhabitable for our descendants. The notion of stewardship has roots in
many cultures. See, e.g., B. KADER, A. SABBAGH, A. GLENID & M. IZZIDIEN, ISLAMIC
PRINCIPLES FOR THE CONSERVATION OF THE NATURAL ENVIRONMENT I3 (I983) ("[E]ach
generation [should use] nature, according to its need, without disrupting or upsetting the interests
of future generations . . . . [M]an should not abuse, misuse or distort the natural resources as
each generation is entitled to benefit from them but is not entitled to own them permanently.");
Genesis I7:7-8 ("And I will establish my covenant between me and you and your descendants
after you throughout their generations for an everlasting covenant . . . . And I will give to
you, and to your descendants after you, the land of your sojournings, all the land of Canaan,
for an everlasting possession . ...").
95 See E. WEISS, IN FAIRNESS TO FUTURE GENERATIONS 22 (I989).
96 See id.
97 See id. at 23.
98 The most complete articulation of this theory can found in E. WEISS, supra note 95.
99 See id. at 23-24; J. RAWLS, A THEORY OF JUSTICE 287 (1971).
100 See E. WEISS, supra note 95, at 38.

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to this view, "the human community [is] a partnership among all

generations," and "the purpose of human society [is to] protect the
welfare . . . of every generation."101
Even if the theory of intergenerational equity correctly resolves the
balance between the interests of current and future generations, it
does not provide much guidance for measuring future interests. The
value of natural resources to each generation depends on how that
generation uses them. It is impossible for the current generation to
predict how future generations will use such resources because tech-
nological advances may dramatically increase the value of some re-
sources and decrease the value of others. 102
Measuring future interests is also difficult because the premises
underlying the standard economic method of discounting future values
become problematic. One such premise relates to time preferences:
goods now are preferred to goods later. 103 Treating future generations
fairly, however, requires that the interests of the present generation
not be preferred to those of future generations. Another premise
relates to the opportunity costs of forgone investment: the use of
resources now may produce wealth later. 104 For long-range environ-
mental problems, the possibility that the savings incurred by continued
industrial production will result in technological advances and other
investments that increase the wealth of future generations is far too
speculative to justify the use of a model that yields trivial present
values for future benefits.105 Yet even if the mathematical formula
used in the discounting method fails, one cannot completely ignore
the opportunity costs of projects involving scientific research and de-
velopment forgone for the sake of preserving natural resources.
Because there is no obvious method of measuring the value of
natural resources to future generations,106 states are free to decide
how to represent the interests of their own future generations. The
problem with this approach is that for some states, the costs of en-
101 Id. at 23.
102 Cf. Baird, Self-lnterest and Cooperation in Long-Term Contracts, I9 J. LEGAL STUD.
583, 585 (I990) (discussing the potential for technological change to affect long-term contractual
obligations).
103 See Lind, A Primer on the Major Issues Relating to the Discount Rate for Evaluating
National Energy Options, in DISCOUNTING FOR TIME AND RISK IN ENERGY POLICY 2 I, 2 I
(I982).
104 See id. at 22.
105 See R. BENEDICK, supra note 40, at 202. For example, the present value of a resource
valued at one million dollars ioo years from now, at a discount rate of io%, is $72.57. Another
problem with using the discount method to evaluate long-range environmental problems is the
difficulty of choosing the appropriate discount rate. Cf. Lind, supra note I03, at 55-59 (sum-
marizing arguments that market rates are inappropriate for social cost-benefit analysis), 77-87
(examining the relative merits of four ways of choosing a social discount rate).
106 See Thacher, Focusing on the Near Term: Alternative Legal and Institutional Approaches
to Global Change, in GREENHOUSE WARMING, supra note 30, at 46.

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I542 HARVARD LAW RE VIEW [Vol. I04:I484
vironmental regulation may be greater than the anticipated damage

to the interests of their own future generations, but less than the
damage to the interests of all future generations.107 Some commen-
tators have suggested that designating a formal representative of the
interests of future generations as a whole would protect these interests
more efficiently. 108 One way to select such a representative would be
to designate or create an international organization to represent the
world's future generations. An alternative would be to designate rep-
resentatives of the resources themselves. 109 Regardless of the identity
of the representatives, states will resist granting them any real power,
especially because there is no reason why they would be inherently
better than states at measuring future interests. 10
A better approach would encourage states to make policy decisions
based on estimates of the total costs of environmental regulation and
the anticipated total damage to the resources in question.' 1 Suppose,
for example, that Canada and the United States are negotiating an
agreement to preserve Lake Michigan. Assume that Lake Michigan
is currently polluted and that the total cost to both states of restoring
it to a pristine state in ioo years is one million dollars. For the sake
of future generations, the two states should decide whether together
they would pay one million dollars to have a clean Lake Michigan
ioo years from now. If so, they have an obligation to future gener-
ations to begin the clean-up. In seeking to fulfill that obligation, the
two states could then decide how to share the costs.
C. The Convention-Protocol Approach
Due to the apparent success of the recent ozone negotiations, the

convention-protocol approach has become the favored method of cre-
ating multilateral environmental agreements.112 The adoption of this
approach can be viewed as a response to some of the characteristic
problems of creating environmental agreements discussed in section
B.113 Although the convention-protocol approach may be an improve-
ment on the Law of the Sea negotiations, it still leaves some problems

108 Cf. E. WEISS, supra note 95, at 26 (asserting that "all countries have an intergenerational
obligation to future generations as a class, regardless of nationality").
109 Cf. Stone, Should Trees Have Standing? - Toward Legal Rights for Natural Objects, 45
S. CAL. L. REV. 450, 464-73 (I972) (arguing that people should have standing to sue on behalf
of natural objects).
110 This may explain why past calls to allow private or governmental organizations to
represent the environment in other contexts such as lawsuits have fallen on deaf ears. See, e
Sierra Club v. Morton, 405 U.S. 727, 736-4I (1972).
"11 See supra p. I532.

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i99I] DEVELOPMENTS - INTERNATIONAL ENVIRONMENTAL LAW I543
unsolved. Its weaknesses suggest that it may fail to produce an

effective agreement in the upcoming global warming negotiations.
Admittedly, the convention-protocol approach might solve some of
the problems that occur in the creation of environmental agreements.
For example, it could reduce free rider problems by inducing states
to enter a relatively costless agreement (the convention) as a prelude
to more costly ones (the protocols). Presumably, once states are parties
to a convention, they will be under greater pressure and thus more
likely to join protocols reached at subsequent conferences. In addi-
tion, the ozone negotiations culminating in the Montreal Protocol
seemed to show that the convention creates a framework of coopera-
tion in which states can reach agreement quickly when new scientific
evidence becomes available, thus enabling them to respond to envi-
ronmental problems before the damage becomes much worse or irre-
versible. 114
The convention-protocol approach, however, has not met complete
success. No African state except Libya has signed the I989 Basel
Convention, even though the agreement was negotiated at the insis-
tence of developing countries.115 Even the convention-protocol agree-
ment most widely considered to be a success, the Montreal Protocol,116
may ultimately prove a hollow victory. Although the negotiations
quickly produced an agreement, it remains to be seen whether that
agreement will achieve the stated goal of preventing further depletion
of the ozone layer.117 Some scientists and environmentalists believe
that the CFC reduction targets adopted in the Montreal Protocol will
be "too little too late."1118
Moreover, the convention-protocol approach has inherent weak-
nesses that may undermine future negotiations. First, two rounds of
ratification are necessary before any environmental regulation enters
114 The Montreal Protocol negotiations culminated in an agreement in less than two years
after the discovery of the hole in the ozone layer above Antarctica. See Sebenius, supra note
30, at 72.
Wastes and Their Disposal, in NINE CASE STUDIES, supra note I6, at 75, 91-92.
116 The Montreal Protocol has been hailed as a "landmark" agreement, Morrisette, The
Evolution of Policy Responses to Stratospheric Ozone Depletion, 29 NAT. RESOURCES J. 793,
794, 817, 820 (I989), and a model for future international environmental negotiations, see Note,
The Future's So Bright, I Gotta Wear Shades: Future Impacts of the Montreal Protocol on
Substances That Deplete the Ozone Layer, 29 VA. J. INT'L L. 211, 248 (I988). It also has been
praised for demonstrating a spirit of international cooperation; for showing that agreement is
possible even without conclusive scientific evidence of an existing problem; for creating inno-
vative solutions to a global environmental problem, see Morrisette, supra, at 820; and for
achieving a flexible solution that can be adapted to changing circumstances, see Note, An
Attempt to Stop the Sky from Falling: The Montreal Protocol to Protect Against Atmospheric
Ozone Reduction, I5 SYRACUSE J. INT'L L. & COM. 39I, 395, 428 (I989).
117 See Montreal Protocol, supra note 33, 26 I.L.M. at 550-5I (preamble).
118 Jones, In Search of the Safe CFCs, 26 NEW SCIENTIST 56, 56 (May I988).

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into legal force (one for the convention and one for the protocols), and
the environmental problem may become irreversible in the interim.
Thus, the appearance that the convention-protocol approach leads to
agreements more quickly than comprehensive negotiations is deceiv-
ing. The relevant time frame starts with the beginning of the con-
vention negotiations and lasts until the protocol enters into force. For
example, although the Montreal Protocol was adopted in a relatively
short time span (two years following the Vienna Convention for the
Protection of the Ozone Layer119), one must also consider the time
required to negotiate the Vienna Convention (four years) and the time
taken until the Protocol entered into force (two years).120 The ozone
regime thus took nearly eight years to go into effect - hardly an
improvement on the Law of the Sea negotiations. 121
Second, although the convention-protocol approach may reduce
free rider problems, it does not reduce the threat of hold-outs in the
regulation of global commons. 122 An incumbent government may join
the convention to share in the domestic political rewards of reaching
an agreement without ever joining a protocol and incurring the costs
of environmental regulation. This problem may be solved by requir-
ing every party to the convention to be party to at least one protocol;
in fact, some conventions include such a provision.'23 But parties
could still join only those protocols that are favorable to them. For
example, under the Convention on International Trade in Endangered
Species (CITES),124 any state can enter a reservation to a change in
the lists of protected species (the CITES equivalent of protocols) and
thereby exempt itself from the Convention with respect to that spe-
cies.'25 As a result, the effectiveness of CITES has been severely
limited by Japan's reservations regarding four species of whales'26 and
the reservations of five African states regarding African elephants.'27
119 See Vienna Ozone Convention, supra note 35, 26 I.L.M. at 1529.
121 The Montreal Protocol does, however, contain some provisions designed to avoid the
time delay caused by the need to ratify new agreements. By a two-thirds vote, the parties can
make adjustments to the list of controlled substances that become effective six months later.
See Montreal Protocol, supra note 33, art. 2, para. 9, 26 I.L.M. at I553-54. Similarly, by a
two-thirds vote, the parties to CITES can adopt amendments to the lists of endangered species
that enter into force go days later (except for parties that enter a reservation). See CITES,
supra note 57, art. XV, 27 U.S.T. at 1110-12, T.I.A.S. No. 8249, at 24-26, 993 U.N.T.S. at
254-55.
122 See supra pp. 1534, 1537-39.

123 See, e.g., Barcelona Convention, supra note ii, art. 23, 15 I.L.M. at 296.
124 See supra note 5 7.
125 See CITES, supra note 57, art. XXIII, 27 U.S.T. at iii6, T.I.A.S. No. 8249 at 30, 993
U.N.T.S. at 257.
126 See S. FITZGERALD, INTERNATIONAL WILDLIFE TRADE: WHOSE BUSINESS IS IT? 377
(1989).

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A global warming convention could be similarly hobbled by the ref

of states such as China and India to join key protocols that would
limit their economic development.'28
The convention-protocol approach might even accentuate hold-out
problems because it precludes one possible solution - issue linkage.
Although the Law of the Sea negotiations demonstrated that negoti-
ations can become unmanageable when they are too comprehensive,
it may be easier for states to make concessions by linking a compro-
mise on one issue to an agreement on another.'29 Issue linkage may
be a necessary part of any agreement on global warming because of
the "shared and parallel sacrifice[s]" that will be required of every
state.130 In the convention-protocol approach, linkage may prove
difficult to achieve because each issue is addressed in a different
protocol.
Finally, future environmental problems might lack the unique
characteristics of the ozone problem that led to the completion of the
Montreal Protocol.'3' The discovery of the ozone hole above Antarc-
tica offered convincing proof of the problem and therefore reduced
the dilemma raised by scientific uncertainty.'32 This discovery, com-
bined with increasing public awareness of the risks of skin cancer
caused by ozone depletion, placed considerable pressure on the ne-
gotiators to reach an agreement.'33 Furthermore, the proposed re-
strictions on the production of CFCs were supported by the leading
producer of CFCs, DuPont, which had called for worldwide limits on
CFC emissions and had begun research to develop alternatives to
CFCs.'34 Affected industries are usually a powerful source of oppo-
sition to environmental regulation.'35

129 See supra p. 1539.
130 Sebenius, supra note 30, at 77.
131 See generally R. BENEDICK, supra note 40 (describing in detail the events leading to the
completion of the Montreal Protocol and subsequent developments).
132 See A Cool Look at Hot Air, supra note 88, at i8; see generally Morrisette, supra note
iI6, at 812-13 (arguing that evolving scientific understanding of the problem was a key factor
in reaching the Protocol).
133 See Morisette, supra note ii6, at 814-15. Although there was no conclusive evidence
that CFCs caused the Antarctic ozone hole, scientific studies had linked the depletion of the
ozone layer to the emission of CFCs into the atmosphere. See Kerr, Halocarbons Linked to
Ozone Hole, 236 SCIENCE 1182, 1183 (June 1987); Peterson, Evidence of Ozone Depletion Found
over Big Urban Areas, Wash. Post, Mar. i6, I988, at Ai, col. I; Nesmith, New Tests of
Antarctic Ozone 'Hole' Heighten Worry Over Possible Global Effect, Atlanta Const., Nov. 9,
1987, at 3, col. i. The fact that earlier protocol negotiations broke down attests to the
importance of this discovery. See Wirth & Lashof, supra note 39, at i8.
134 See Sebenius, supra note 30, at 8o-8i; Thacher, Alternative Legal and Institutional
Approaches to Global Change, in GREENHOUSE WARMING, supra note 30, at 37, 5I; A Cool
Look at Hot Air, supra note 88, at i8.
135 For example, the United States electric and coal-mining industries opposed legislation
designed to curb acid rain. See Albin & Paulson, supra note 56, at 152-55.

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In contrast, the upcoming conference on global warming will enjoy

few of these advantages. No scientific "smoking gun" similar to the
Antarctic ozone hole will exist to arouse diplomats to prevent global
warming; in fact, scientists are still unsure whether the observed
increase in global temperatures over the last century is due to man-
made contributions to the greenhouse effect or to natural climate
variation.'36 Even if scientists agree that temperatures are rising,
potential causes of global warming include a wide range of human
activities.'37 Thus, it will be more difficult to solve the problem not
only scientifically, but also politically, because potential hold-out states
will be much more reluctant to enter the agreement.'38
D. Recommendations for Global Warming Negotiations
Notwithstanding its advantages over the Law of the Sea negotia-

tions, the convention-protocol approach has its limitations. It may
induce would-be free riders to join an agreement, but it does not
eliminate hold-out problems. It provides the framework under which
states can negotiate specific agreements in light of new scientific evi-
dence such as the discovery of the Antarctic ozone hole, but it does
not prevent scientific uncertainty from frustrating progress in the ne-
gotiations. What is needed, therefore, is an approach that retains the
strengths of the convention-protocol approach, but is sensitive to the
problems that the convention-protocol approach fails to address.
Several commentators have recognized that adopting a framework
convention as a prelude to specific protocols on global warming may
delay effective regulation.'39 Some have therefore recommended that
states at the I992 United Nations Conference on the Environment
and Development in Brazil negotiate key protocols simultaneously
with the convention or include more specific provisions in the con-
136 See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, SCIENTIFIC ASSESSMENT OF

CLIMATE CHANGE 21-22 (I990) [hereinafter IPCC STUDY].
137 See Sebenius, supra note 30, at 74. Scientists have already identified two possible man-
made causes of an increase in global temperatures. One is the emission of substances that
deplete the ozone layer (CFCs and halons), thereby damaging the shield that prevents some of
the sun's radiation from reaching the surface of the earth. Another is the emission of so-called
"greenhouse gases" (primarily carbon dioxide, methane, and nitrous oxide) into the atmosphere.
These substances contribute to the "greenhouse effect," in which the earth's atmosphere absorbs
solar radiation that is reflected by the earth's surface, thus trapping the heat. See IPCC STUDY,
138 See Benedick, Lessons from the "Ozone Hole," in GREENHOUSE WARMING, supra note
30, at 9, IO-Ii ("[A]s energy is so essential to the development of such heavily populated, low-
income countries as China and India, they will be reluctant to forego fossil fuels unless econom-
ical alternatives are available. ... [D]eveloping countries, with their huge and growing
populations, could undermine efforts . . . to forestall Greenhouse warming.").
139 See generally GREENHOUSE WARMING, supra note 30 (collecting several articles recom-
mending a different approach to a global warming agreement).

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vention itself.140 Others have noted the difficulties of segregating a

response to global warming into protocols on specific affected indus-
tries (such as transportation, forestry, and agriculture) and have ar-
gued for a comprehensive action plan designed to take into account
all industries at once.'4'
Scientific uncertainty and the threat of hold-outs, however, will
make quick agreement on specific measures difficult.'42 Moreover,
linking separate issues will increase the complexity of the negotiations,
a result the convention-protocol approach was designed to avoid.'43
Given the enormous variety of human activities that generate green-
house gases,'44 any attempt to reach a comprehensive agreement could
make the difficulties encountered in the Law of the Sea negotiations
pale in comparison.'45
Accordingly, other commentators have suggested that to combat
global warming, states should try to create a regime founded on
domestic environmental regulation as well as on international agree-
ments.146 These commentators argue that such a "bottom-up" ap-
proach would more effectively combat global warming because it
would allow each state to address its own economic costs and political
constraints.'47 The main goal of this approach is to "offer an array
of procedural devices designed to stimulate [states'] action rather than
prescribe it. "148 Thus, rather than attempting to negotiate an agree-
ment that sets precise standards of reduction of greenhouse gas emis-
sions for each party, states at the I992 United Nations conference
could incorporate into the initial framework convention provisions that
call for all parties to formulate their own national plans and create
an internatiojial institution to help them do so.
The main advantage of augmenting the convention-protocol ap-
proach with such provisions is that this sort of agreement might lead
to action more quickly than will a purely regulatory international
agreement. A bottom-up approach may expedite effective environ-
140 See, e.g., Benedick, supra note 138, at II-I2; Wirth & Lashof, supra note 39, at 18-I
141 See, e.g., Thacher, supra note 134, at 44.
142 See R. BENEDICK, supra note 40, at 209.
143 See Sebenius, supra note 30, at 77-78.
144 These activities range from wood fires and rice growing to air and automobile travel.
See Richardson, Elements of a Framework Treaty on Climate Change, in GREENHOUSE WARM-
ING, supra note 30, at 25, 26.
146 See, e.g., Chayes, Managing the Transition to a Global Warming Regime or What to Do
Til the Treaty Comes, in GREENHOUSE WARMING, supra note 30, at 6i; Nitze, A Proposed
Structure for an International Convention on Climate Change, in GREENHOUSE WARMING,
supra note 30, at 33; Richardson, supra note 144, at 25.
147 See Mathews, Introduction and Overview, in GREENHOUSE WARMING, supra note 30,
at i, 6; Nitze, supra note 146, at 34.
148 Richardson, supra note 144, at 26-27.

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mental regulation because parties to the convention could begin for-

mulating domestic policy before protocols enter into force. Thus,
rather than waiting until negotiators reach agreement on specific pro-
tocols, industrial states that currently have the largest greenhouse gas
emissions could take steps to reduce their emissions before the problem
worsens significantly.'49 Under either a regulatory agreement or a
bottom-up approach, these states would be required at some point to
fulfill their commitments through domestic regulation. The earlier
they take such action, the greater the likelihood of preventing irre-
versible environmental damage.
Meanwhile, the framework convention could establish the machin-
ery to help developing countries formulate their own policies when
they acquire the technology to produce greenhouse gases. This ma-
chinery would also be useful to industrial states that currently hesitate
to adopt extensive reductions but that might be more willing to do so
in light of changes in the political climate.'50 Moreover, if each state
were required to formulate its own domestic plan, states might avoid
the tendency to accept the lowest-common-denominator solutions char-
acteristic of international standards. 15'
The success of a bottom-up approach, of course, depends on the
willingness of states to adopt domestic regulation. An international
institution'52 might play a useful role in facilitating this regulation by
collecting and disseminating information. Toward this end, the frame-
work convention might either require the parties to submit reports of
their greenhouse gas emissions or give the institution the power to
monitor each party's emissions and to publish its findings.'53 Parties
might also be required to consult with the institution's experts to
review past action and future plans."54 The international institution
149 See R. BENEDICK, supra note 40, at 2I0. The actions of just a few states can make a
large difference in preventing global warming. For example, the ban of CFC use in aerosol
cans during the 1970S by the United States, Canada, and the Scandinavian countries prevented
CFCs from becoming a larger contributor to global warming than carbon dioxide. See Mathews,
supra note 147, at 6.
150 Cf. Chayes, supra note 146, at 62 (arguing that if this machinery is not created until
scientific uncertainty is reduced, the problem may become irreversible before any policy responses
take effect).
151 See supra p. 1532 & note 53.
152 This institution could be either an existing international organization or a newly created
organization. The existing organization most likely to fill this role is UNEP, which has a total
annual budget of only $30 million. See Chayes, supra note 146, at 62. Some commentators
have argued that UNEP, which acts in the limited role of providing "administrative and
housekeeping services," lacks the power to secure compliance with a global warming regime.
Id. at 63. However, if the role of the international institution were confined to gathering
information and providing technical assistance to developing countries, it would be unnecessary
to endow the institution with more power.
153 See id. at 64; Richardson, supra note I44, at 29.
154 See Chayes, supra note I46, at 64.

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might also facilitate scientific consensus by conducting independent

scientific research or coordinating collaborative research efforts. 155
The institution could collect statistical data on climate change and
develop quantitative criteria for evaluating each party's perfor-
mance. 156
Finally, an international institution could centralize the adminis-
tration of assistance programs for developing countries that have lim-
ited scientific, technical, and administrative resources. It could collect
a fund from industrial states to provide technical and financial assis-
tance to developing countries that are parties to the agreement.157
Alternatively, it could work with multilateral lending institutions such
as the World Bank to condition loans to developing countries upon
their participation in the global warming regime.158 Finally, it could
explore the possibility of allowing developing countries that participate
in the global warming regime to become consultative parties to the
Antarctic Treaty system. 159
An approach that focuses in the short-run on encouraging states
to adopt domestic environmental regulations need not preclude con-
tinued efforts to reach specific protocols that set standards designed
to prevent global warming. Indeed, the international institution en-
visioned here could also serve as the Secretariat to the negotiations of
specific protocols. 160 However, a convention-protocol approach alone
is not enough. It is imperative that industrial states adopt environ-
mental regulation sooner than any protocol would enter into force.
These states must take the lead in combating global warming, not
only to prevent irreversible damage, but also to set a positive example
for developing countries whose cooperation will remain vital. Even
advocates of a comprehensive action plan designed to combat global
warming recognize that "unless the United States and other major
powers take unilateral actions to reduce their own [carbon dioxide]
emissions, no 'comprehensive' approach is likely to be agreed upon
155 Cf. Richardson, supra note I44, at 30 (recognizing the need for more coordination of
research activities).
156 See Chayes, supra note I46, at 65-66.
157 See id. at 65-66; Nitze, supra note I46, at 35.
158 See Chayes, supra note I46, at 65; Richardson, supra note I44, at 29-30.
159 Legally, such issue linkage would be fairly easy to accomplish because the I959 Antarctic
Treaty can be modified by a majority vote of the parties at a meeting called by any one party.
See Antarctic Treaty, supra note 74, art. XII, para. 2, I2 U.S.T. at 799-800, T.I.A.S. No.
4780, at 6-7, 402 U.N.T.S. at 82. Politically, such issue linkage would both lessen the contro-
versy about the management of global commons by a self-selected group of states, see supra
notes 75-77 and accompanying text, and provide the international cooperation necessary to
combat global warming.
160 In addition to the reduction of greenhouse gas emissions, potential subjects of such
protocols include automotive transportation, industrial energy use, tropical forestry, agricultural
practices, sea level rise, technology transfer, population growth, and a carbon tax. See Sebenius,

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i550 HARVARD LAWREVIEW [Vol. I04:I484
that can deal with climatic change."'161 Augmenting the convention-

protocol approach with provisions in the framework convention that
call for each party to adopt domestic environmental regulation might
provide the political impetus for such unilateral policy changes.
E. Conclusion
International agreements will play a major role in any solution to

worldwide environmental problems such as global warming. The
international law governing the creation of international agreements
allows states to choose among many methods of adopting a global
warming convention. Although the convention-protocol approach is
an improvement on the Law of the Sea negotiations, its weaknesses
will prevent negotiators from dealing with some of the problems that
may arise in the upcoming global warming negotiations. In adopting
a global warming convention, states should augment the convention-
protocol approach with provisions that call for each party to formulate
domestic environmental regulation.
IV. ASSENT TO AND ENFORCEMENT OF INTERNATIONAL

ENVIRONMENTAL AGREEMENTS
A. Introduction
Environmental regulation does not, and should not, stop at state

borders. Because both pollution and ecosystems cross state lines, a
patchwork of national environmental regulations is ineffective1 and
inefficient. Global environmental resources, such as rain forests, that
lie within the territory of a state that provides little environmental
protection may be unnecessarily squandered; meanwhile, increased
environmental protection in one country may simply drive polluting
industries to other nations.2 These possibilities necessitate the creation
of at least some international environmental agreements.
To formulate and implement effective environmental agreements,
states must squarely confront several problems specific to the environ-
mental area. First, because detrimental state activity often produces
transboundary effects, states rarely bear the full costs of the environ-
mental damage they cause.3 Thus, states may underestimate environ-
mental problems and conclude that negotiating or assenting to agree-
161 Thacher, supra note I34,, at 52.
1 See Note, Carbon Dioxide's Threat to Global Climate: An International Solution, I 7 STAN.
J. INT'L L. 389, 402 (I98I) (quoting A. Kiss, SURVEY OF CURRENT DEVELOPMENTS IN INTER-
NATIONAL ENVIRONMENTAL LAW I2 (I976)).
2 See French, A Most Deadly Trade, WORLD WATCH, July-Aug. I990, at ii, II.
3 See Hardin, The Tragedy of the Commons, I62 SCIENCE I243, I245 (I968).

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ments is too costly. Second, states must avoid discounting the long-
term environmental harms caused by their activities. Because envi-
ronmental harms span generations, traditional cost-benefit analysis
may fail.4 Third, developing countries have historically viewed the
environmental movement with skepticism and feared that it is merely
another effort by the industrialized countries to solidify their economic
advantages.5 Fourth, environmental agreements pose unusual prob-
lems for national governments. Because environmental agreements
often require extensive monitoring, national regulation, and scientific
expertise, state agencies and bureaucracies may not have the re-
sources, authority, or staffs to implement them fully.6 Finally, al-
though traditional international law largely concerns itself with inter-
state actions, most environmental damage is caused not by states, but
by individuals and corporations.7
Environmental treaties also face many of the same problems that
other international agreements face. Because states are sovereign,
they may be unwilling to cede any authority by signing an environ-
mental agreement. They may effectively "reserve" power and author-
ity both before and after signing a treaty. Yet by drafting vague
provisions, limiting the scope of treaties, providing opt-outs and ex-
emptions, and establishing neutral international agencies (or, by dom-
inating those agencies politically), states can increase the probability
of treaty ratification.
Unfortunately, techniques that facilitate assent tend to compromise
enforceability. Moreover, even after a state has ratified a treaty, it
still may defect; effective treaty implementation therefore requires
monitoring and enforcement of the treaty's provisions. International
adjudication does not provide an adequate enforcement mechanism
because it is consensual. However, international agencies that can
4 See Page, Economics of a Throwaway Society; the One-Way Economy, in ECONOMICS

RESOURCES POLICY 74, 78-82 (J. Butlin ed. I98I); Rich, The Multilateral Development Banks
Environmental Policy and the United States, I2 ECOLOGY L.Q. 68i, 744 (I985); Weiss, The
Planetary Trust: Conservation and Intergenerational Equity, ii ECOLOGY L.Q. 495, 5I6-I9
(I984).
5 See, e.g., Fuller, Hemley & Fitzgerald, Wildlife Trade Law Implementation in Developing
Countries: The Experience in Latin America, 5 B.U. INT'L L.J. 289, 292 (1987) ("Some officials
and traders view [the Convention on the International Trade in Endangered Species of Wild
Fauna and Flora] as an imperialistic effort by foreigners to conserve species at the exporting
countries' expense."). This skepticism has decreased markedly in recent years. In fact, many
Less-Developed Countries (LDCs) are now in the forefront of international environmental pro-
tection. See Muldoon, The International Law of Ecodevelopment: Emerging Norms for Devel-
opment Assistance Agencies, 22 TEX. INT'L L.J. I, I9-2I (I986).
6 See U.N. EVN'T PROGRAMME, THE STATE OF THE WORLD ENVIRONMENT 66-67 (I987).
7 In wildlife protection treaties, for example, "the real conflict of interests is not between the
states; it lies between those whose economic or other interests involve the exploitation of animal
and the animals whose welfare is at stake." Bowman, The Protection of Animals Under
International Law, 4 CONN. J. INT'L L. 487, 494 (I989).

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monitor treaty compliance and lower info

cessing costs may be better able to enforc
can aid the efforts of environmental orga
that may bring pressure to bear on states that do not comply.
States also may have economic incentives either to refuse to assent
to an environmental treaty or to cease complying with one. Although
a treaty may attempt to build an economic incentive structure to
address these concerns, in practice these structures are not completely
effective.8 Non-governmental organizations (NGOs) and international
development agencies also can provide economic incentives to comply
with international environmental agreements. For example, NGOs
can purchase foreign debt in exchange for a state's promise to provide
enhanced environmental protection within its borders; international
development agencies can make their loan programs contingent on
environmental criteria.
The role that NGOs and international agencies can play in offering
economic incentives suggests a new way of addressing traditional
barriers to the success of environmental agreements - focus on activ-
ity below the state level. Instead of attempting to constrain states'
activity through coercive sanctions or direct regulation, international
agencies can work with state officials and individual citizens to in-
culcate in them an environmental ethic. These efforts cost little and
are unlikely to raise significant sovereignty concerns. International
agencies, established to monitor treaties, can work at the grass roots
level to build domestic support for international environmental policies
among environmental groups. They can also cooperate with other
international organizations and NGOs. These environmental groups,
if they have adequate access to international agencies, could increase
the probability that the agencies will advance environmentalism as a
goal. Lastly, international agencies can foster the development of
communities of environmental scientists and experts, and can influence
and train state officials.
B. Sovereignty
It is a well-settled principle of international law that sovereign

states can bind themselves through international agreements. The
principle of pacta sunt servanda, which demands that states obey
commitments in good faith, stands as perhaps the central precept of
international law.9 States do assent to treaties10 that effectively cede
I See infra pp. I567-69.

9 "Every treaty in force is binding upon the parties to it and must be performed by them i
good faith." The Vienna Convention on the Law of Treaties, opened for signature May
I969, art. 26, II55 U.N.T.S. 33I, 339 [hereinafter I969 Vienna Convention] (entered into forc
Jan. 27, I980).
10 An international treaty is "an international agreement concluded between States in written

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aspects of their sovereign authority to other states or to international

organizations.11 Unfortunately, states often do not translate this the-
oretical ability to enter international agreements into action. Although
international cooperation has increased markedly over the past several
years,12 the international system is most appropriately characterized
by anarchy; states are sovereign. 13 States often vigorously defend their
sovereignty because they weigh their physical integrity and continued
political existence as important elements in their foreign policy. 14
All else being equal, states are less likely to assent to proposed
agreements that sacrifice a greater degree of sovereignty. Even a state
that is completely satisfied with a proposed agreement may worry that
circumstances affecting the agreement could change unpredictably.
Additionally, a state may fear that its assent to an agreement will
lead private persons, organizations, and other states to form expec-
tations about its future behavior that may constrain the state's freedom
of action. 15 States usually can withdraw from treaty obligations, but
the resulting public embarrassment and political pressure may be
costly.
Sovereignty considerations may undermine an agreement even
after it has been consummated. Although international law insists
that states honor their commitments, states may unilaterally withdraw
from a regime16 to which they have previously assented. International
law and international agreements, however, are undermined if states
withdraw clandestinely. To prevent clandestine defection, some actor
or actors must monitor international agreements. Without monitoring,
enforcement becomes impossible.
Although most legal regimes provide a framework for monitoring
form and governed by international law, whether embodied in a single instrument or in two
more related instruments and whatever its particular designation." Id. art. 2, ? i(a), II55
U.N.T.S. at 333.
11 For a discussion of the creation of these commitments, see supra Part III.
12 Cf. R. KEOHANE, AFTER HEGEMONY: COOPERATION AND DISCORD IN THE WOR
LITICAL ECONOMY 7-IO (I984) (discussing potential for cooperation).
13 See Art & Jervis, The Anarchic Environment, in INTERNATIONAL POLITICS I, 2-4 (R.
Art & R. Jervis eds. I985).
14 See K. WALTZ, THEORY OF INTERNATIONAL POLITICS 9I-92 (I979).
15 The actual significance of the distinction between legal commitments and political expec-
tations is blurred. See Davidow & Chiles, The United States and the Issue of the Binding or
Voluntary Nature of International Codes of Conduct Regarding Restrictive Business Practices,
72 AM. J. INT'L L. 247, 255 (I978).
16 International regimes consist of "sets of implicit or explicit principles, norms, rules, and
decision-making procedures around which actors' expectations converge in a given area of
international relations." Krasner, Structural Causes and Regime Consequences: Regimes as
Intervening Variables, in INTERNATIONAL REGIMES I, 2 (S. Krasner ed. I983).

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and enforcing the commitments that parties to the regime undertake,17

the architects of international regimes face the dual challenges of
minimizing monitoring costs and maintaining effective and efficient
enforcement18 without the benefit of a central authority to coordinate
these tasks. Sovereignty, which is embodied in the decentralized struc-
ture of the international system, creates special problems. First, be-
cause states are generally free to act as they choose,19 they often must
rely on collective action to monitor and implement treaties. However,
collective action further increases the likelihood that some states may
defect or opt-out of international agreements.20 Second, some states
may become free riders, exploiting the environmental goods preserved
by states that are expending resources to monitor and enforce com-
mitments. If substantial, these problems may discourage the forma-
tion of agreements in the first place.21
I. Approaches to the Sovereignty Problem: Getting States to As-
sent. - Several approaches can reduce the problem sovereignty poses
for securing states' assent to international environmental agreements.
States may conclude vague, unenforceable agreements that do not
infringe upon sovereignty; they may ratify narrow agreements that
limit interference with sovereignty; they may design agreements that
provide exemptions and opt-outs; or they may set up international
agencies, which act in ways that states may predict or which they
may attempt to dominate.22 Each of these methods entails a trade-
17 See J. DAWSON, W. HARVEY & S. HENDERSON, CASES AND COMMENT ON CONTRACTS

185 (5th ed. 1987).
18 Enforcement of mutually agreed-upon commitments, or compensation in the event of
breach (which is unlikely in most international environmental agreements because of the difficulty
involved in assessing damages), is assumed to be desirable. This assumption makes sense if
parties act rationally and have good information. If monitoring costs associated with enforce-
ment are minimized, allocative efficiency increases. Cf. A. POLINSKY, AN INTRODUCTION TO
LAW AND ECONOMICS 11-14 (I989) (discussing the effect of transaction costs on efficiency). See
generally Zalob, Approaches to Enforcement of Environmental Law: An International Perspec-
tive, 3 HASTINGS INT'L & COMP. L. REV. 299 (I980) (surveying and analyzing various enforce-
ment schemes).
19 States may, however, be bound by customary international law. See M. AKEHURST, A
MODERN INTRODUCTION TO INTERNATIONAL LAW 25-34 (6th ed. 1987).
20 Although cooperation resulting in an international agreement may benefit the whole system
by lowering total costs, states may rationally perceive their own interests differently and each
may conclude that it is in its interest to opt out of, or defect from, a proposed regime. Cf. A.
POLINSKY, supra note i8, at 3I-34 (discussing efficient breach of contract). See generally R.
LUCE & H. RAIFFA, GAMES AND DECISIONS 327-70 (1985) (discussing game theory and the
prisoner's dilemma).
21 See generally R. AXELROD, THE EVOLUTION OF COOPERATION 18-154 (1984) (outlining
basic obstacles to cooperation).
22 Even if it is a state's intention to dominate an agency, norms generated by the agency,
NGOs, and other states may constrain its ability it do so. See infra p. I56i.

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off between securing assent and creating meaningful and enforceable

agreements.
(a) Cooperation Agreements. - Assent to an international environ-
mental treaty is more easily obtained if the treaty creates few concrete
obligations and merely pronounces a vague commitment to address
broad environmental concerns. Such an agreement may require the
parties to cooperate in the field of environmental protection,23 study
pollution and its effects on the environment,24 exchange scientists and
technical information, or participate in bilateral conferences and other
forms of cooperation upon which the parties may agree.25
States may be attracted to this type of cooperation agreement,
which creates no real duties or obligations, because it entails no cession
of sovereignty and may create positive publicity. Like all instances
of international law, if such agreements can gain political legitimacy,
they may significantly affect the behavior of people and govern-
ments.26 They establish environmental protection as a worthwhile
international goal. For example, United Nations Declarations and
General Assembly Resolutions, although nonbinding, have played a
major role in placing international environmental concerns on the
discussion table.27 These agreements may also foster awareness of
particular international problems, as agreements in the field of inter-
national human rights have done.28 The lack of monitoring and
enforcement mechanisms or specific limits on environmental activity,
23 See, e.g., Agreement on Cooperation in the Field of Environmental Protection, May 23,
1972, United States-USSR, art. I, 23 U.S.T. 845, 847, T.I.A.S. No. 7345, at 3 [hereinafter
Agreement on Cooperation in Environmental Protection].
24 See id. art. 2, 23 U.S.T. at 847, T.I.A.S. No. 7345, at 3.
25 See id. art. 3, 23 U.S.T. at 848, T.I.A.S. No. 7345, at 4.
26 This phenomenon has occurred, for example, in the area of international human rights:
That is why the lawmaking process in the international human rights field is so important
and needs to be encouraged. It gives legitimacy to the struggle for human rights in many
parts of the world; it serves, more often than we probably know, to restrain repressive
governmental behavior, and it provides the international community with internationally
accepted standards by which to judge and condemn violations of human rights.
Buergenthal, International Human Rights Laws and Institutions: Accomplishments and Pros-
pects, 63 WASH. L. REv. i, i8 (I988).
27 See, e.g., Stockholm Declaration on the Human Environment: Report of the Un
Nations Conference on the Human Environment, U.N. Doc. A/CONF.48/14 (1972), r
in ii I.L.M. 1416 [hereinafter Stockholm Declaration]. This is one of the fundamen
nouncements in the area of international environmental protection. Principle 2I declares:
States have . . . the sovereign right to exploit their own resources pursuant to their
environmental policies, and the responsibility to ensure that activities within their ju
diction or control do not cause damage to the environment of other States or of areas
beyond the limits of national jurisdiction.
Id., reprinted in ii I.L.M. at 1420.
28 See, e.g., Scammell, The Prophet and the Wilderness, NEW REPUBLIC, Feb. 25, I99I, at
29, 29 (discussing the impact of human rights norms in promoting policy changes).

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however, prevents cooperation agreements from making a substantial

contribution to environmental protection. These agreements illustrate
a recurring tension in international environmental law: the less sov-
ereignty an agreement sacrifices, the more likely it is to gain assent,
but the more likely the agreement will fail to accomplish significant
environmental goals.
(b) Limited Agreements. - Instead of drafting treaties so broadly
as to deprive them of practical application, states may create nar-
rowly-focused treaties that do not infringe significantly on state sov-
ereignty. For example, the Convention for the Protection of the Rhine
Against Chemical Pollution,29 one of the many treaties regulating the
environment in and around the Rhine River, is less effective than it
could be because "[a]ttempting to put precise restrictions on the emis-
sions of a number of sources involves a complex analysis of the relative
value of each, an assessment that few states are yet prepared to entrust
to international decision-making bodies or even to negotiate on an
international level."30 In contrast, the Convention for the Protection
of the Rhine Against Pollution by Chlorides3l restricts its attention to
one type of pollutant and sets discharge limits for each of the riparian
states for particular sections of the Rhine. Treaties such as the Con-
vention on the Protection of the Rhine Against Pollution by Chlorides
probably are more attractive to states because they have a limited
scope and because they are less costly to monitor.
Reducing the scope of environmental treaties, however, does not
automatically guarantee success. The existence of many narrow en-
vironmental agreements increases aggregate monitoring and informa-
tion costs for states, international agencies, and NGOs. Narrow trea-
ties may simplify monitoring for their respective treaty agencies (if
they exist), but collectively may hinder agency communication and
coordination with state governments, state officials, and NGOs.32
Narrow treaties like the Convention on the Protection of the Rhine
Against Pollution by Chlorides are also prone to failure because they
cannot adequately address the environmental requirements of ecosys-
tems. Reducing chloride pollution in the Rhine is an important goal,
but it is only one step in cleaning up the river. The Convention on
the International Trade in Endangered Species of Wild Fauna and
Flora (CITES),33 which has been praised as "perhaps the most suc-
cessful of all international treaties concerned with the conservation of
wildlife,"34 protects only species, not habitats or ecosystems. Envi-
29 Dec. 3, 1976, 1124 U.N.T.S. 375.

30 A. SPRINGER, THE INTERNATIONAL LAW OF POLLUTION 99 (I983).
31 Dec. 3, 1976, i6 I.L.M. 265.
32 Cf. infra pp. 157379 (discussing coordinating role of agencies).
33 Opened for signature, Mar. 3, I973, 27 U.S.T. 1087, T.I.A.S. No. 8249, 993 U.N.T.S.
243 [hereinafter CITES] (entered into force July I, 1975).
34 S. LYSTER, INTERNATIONAL WILDLIFE LAW 240 (I985).

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I99I] DEVELOPMENTS - INTERNATIONAL ENVIRONMENTAL LAW I55 7
ronmental law scholars increasingly have emphasized the importance

of habitat and ecosystem protection. Under CITES, even if a species
is threatened by international trade, destruction of its habitat by
deforestation, urbanization, or pollution may render protection of the
species moot.35 Even treaties that address a broad range of environ-
mental concerns, but do so over a narrow geographic area, may
provide only limited environmental protection.36 Finally, states may
find it easier to defect from narrow regimes, which attract less pub-
licity and therefore generate less political pressure to comply.
(c) Exemptions and Opt-outs. - Environmental agreements may
have greater appeal and attract more support if states may be ex-
empted from particular disagreeable provisions or if they may opt out
of current and future provisions. For example, if neighboring riparian
states wish to clean up a polluted river, they will have to regulate a
variety of chemical products. Because the environmental harm to the
river is easily divisible into the harms caused by individual chemicals,
states, especially those responsible for the chemical pollution, will
attempt to include exemptions and opt-outs in the treaty language.
The more control a state has over which treaty provisions are binding,
the less interference with that state's sovereignty the treaty poses.
Exemptions are a particularly useful tool in securing state assent
to treaties. The CITES treaty, adopted by a majority of the countries
of the world,37 enjoys wide success in part because it imposes only
import and export controls, which require little cession of sovereignty.
This success is enhanced by exemptions such as the trade exemption
for tourists' souvenirs.38 Similarly, although the Montreal Protocol on
Substances That Deplete the Ozone Layer39 sets reduction schedules
35 See Batchelor, The Preservation of Wildlife Habitat in Ecosystems: Towards a New

Direction Under International Law to Prevent Species' Extinction, 3 FLA. INT'L L.J. 307, 309,
333 (i988); cf. Teclaff & Teclaff, International Control of Cross-Media Pollution - An Ecosystem
Approach, in TRANSBOUNDARY RESOURCES LAW 289, 289-g0 (A. Utton & L. Teclaff eds. I987)
(arguing for river basins as an appropriate focus of attention).
36 The environmental agreements in the treaties concluded between the United States and
Panama over the disposition of the Panama Canal provide an interesting example. See Panama
Canal Treaty, Sept. 7, 1977, i6 I.L.M. 102i; Treaty Concerning the Permanent Neutrality and
Operation of the Panama Canal, Sept. 7, 1977, U.K.T.S. ii (i983), i6 I.L.M. Io40; see also
Robinson, Introduction: Emerging International Environmental Law, 17 STAN. J. INT'L L. 229,
235-44 (i98i) (discussing provisions and effectiveness of Panama Canal environmental agree-
ments).
37 By March I979, 5' states had ratified the treaty. This number increased to 82 by October
i983 and to 94 by November i986. See Favre, Tension Points Within the Language of the
CITES Treaty, 5 B.U. INT'L L.J. 247, 248 n.2 (i987). Currently, 103 countries are parties to
the Convention. See M. BOWMAN & D. HARRIS, MULTILATERAL TREATIES, INDEX AND
CURRENT STATUS 138 (I984 & Supp. 1990).
38 See CITES, supra note 33, art. VII(3), 27 U.S.T. at Iogg-IIoo, T.I.A.S. No. 8249, at
13-14, 993 U.N.T.S. at 249.
39 Opened for signature, Sept. i6, i987, 26 I.L.M. i54i [hereinafter Montreal Protocol]

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for ozone-depleting chemical production, the Protocol allows member

states to overshoot the imposed limits by ten to fifteen percent if they
do so for purposes of "industrial rationalization"40 or to meet the basic
domestic needs of developing countries.41 Developing countries may
defer compliance for up to ten years and may even increase production
and consumption of ozone-destructive chlorofluorocarbons (CFCs)
above I986 levels.42 One of the main problems with exemptions,
however, is that they may also accommodate political trade-offs that
dramatically undercut a treaty's goals. The Montreal Protocol, for
instance, not only allowed certain exemptions for developing countries,
but also accommodated the Soviet Union's five-year plan for new
CFC-producing plants.43 In short, every exemption undermines en-
vironmental protection.
Opt-out provisions may be equally effective in reducing states'
sovereignty-based objections to environmental treaties. By explicitly
creating zones of state discretion, a treaty can allow states to withdraw
partially from an environmental protection regime without suffering
negative publicity or political pressure, or any formal sanctions the
treaty might otherwise impose. In the Montreal Protocol, parties may
opt out of trade restrictions by objecting to an annex that lists products
containing controlled substances. Only parties that do not object must
ban or restrict importation of the specified products.44 Opt-outs may
also be institutionalized in the treaty structure through the use of a
protocol format, which is essentially a formal treaty amendment sys-
tem. The Long-Range Transboundary Air Pollution Convention45
(entered into force Jan. I, I989). The Montreal Protocol was drafted as a supplement to the
Vienna Convention for the Protection of the Ozone Layer, opened for signature Mar. 22, 1985,
26 I.L.M. I5 i6 (entered into force Sept. i, I988). The Convention, concluded under the auspices
of the United Nations Environment Programme (UNEP), established a framework for interna-
tional cooperation on research, monitoring, and information exchange on the extent and effects
of ozone layer depletion. See id. arts. 3-6, 26 I.L.M. at 1531.
40 The Protocol defines industrial rationalization as "the transfer of all or a portion of the
calculated level of production of one Party to another" which is permitted if it increases economic
efficiency or if it anticipates shortfalls caused by plant closures. Montreal Protocol, supra note
39, art. i(8), 26 I.L.M. at 1552.
41 See id. art. 2(I)-(4), 26 I.L.M. at 1552-53.
42 See id. art. 5(I), 26 I.L.M. at '555.
43 See Note, The Future's So Bright, I Gotta Wear Shades: Future Impacts of the Montreal
Protocol on Substances that Deplete the Ozone Layer, 29 VA. J. INT'L L. 211, 232-33 (1988).
44 See Montreal Protocol, supra note 39, art. 4(3)-(4), 26 I.L.M. at I555.
45 Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, T.I.A.S. No.
10541, reprinted in i8 I.L.M. 1442 [hereinafter LRTAP]. LRTAP, concluded by 34 countries
in Europe and North America under the auspices of the United Nations Economic Commission
for Europe (ECE), is the first environmental agreement between Eastern European and Western
European nations. The Convention was a response to the growing global problem of acid
deposition, also know as "acid rain," caused by atmospheric emissions of sulphur dioxide (SO2)
and nitrous oxide (NOx). See J. BRUNNEE, ACID RAIN AND OZONE LAYER DEPLETION:

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(LRTAP) established such a flexible protocol framework, which was

undoubtedly a factor in its wide acceptance.46
Although exemptions and opt-outs may be useful in securing rat-
ification, if cast broadly they may reduce the treaty to a vague co-
operation agreement. LRTAP, the first multilateral treaty to address
transboundary air pollution, established notice and consultation
requirements47 for changes in the national policies of parties that
might significantly affect levels of transboundary air pollution.48
However, the Convention permits parties to continue their existing
environmental policies or change them at will, and requires the parties
only to pledge to "endeavour to limit and, as far as possible, gradually
reduce and prevent air pollution. "49 By allowing certain types of
pollution to continue, opt-outs like those in LRTAP can easily threaten
the very purpose of a treaty.
(d) Objectivity and Agencies. - States also find more appealing a
treaty that includes an explicit framework of procedures and duties
governing its implementation. Such a framework will often require
the creation of a treaty secretariat or agency to coordinate the various
treaty functions. Coercive sanctions need not be a part of this struc-
ture. International agencies can constrain state activity by shaping
norms and expectations in an environmental protection regime and,
by so doing, make treaty implementation more predictable. If a state
knows at the time of ratification that its assent will generate certain
norms and expectations, it will be less worried about unforeseen norms
constraining its activity in the future. Of course, the more authority
and power a proposed international agency has, the more likely sov-
ereignty concerns will prevent the ratification of its authorizing treaty.
Some sovereignty concerns may be lessened if the proposed interna-
INTERNATIONAL LAW AND REGULATION 5-49 (i988) (discussing the scientific background of
acid rain).
46 One official at the United Nations Economic Commission for Europe Secretariat for the
Convention explained: "Paradoxically perhaps, the very open-endedness and generality of [the
Convention's] provisions - frequently pointed out by its critics . . . may be one of its main
assets, as new priorities for action continue to arise and are met in turn by the flexible 'protocol'
system." P. Sand, Regional Approaches to Transboundary Air Pollution 7 (n.d.) (paper presented
at the U.S. National Academy of Engineering Symposium: An Energy Agenda for the I990s,
Irvine, Cal., May 11-12, I988), quoted in Comment, The Convention on Long-Range Trans-
boundary Air Pollution: Meeting the Challenge of International Cooperation, 30 HARV. INT'L
L.J. 447, 457-58 (i989).
47 See LRTAP, supra note 45, arts. 5, 8, T.I.A.S. No. 10541, at 4-6, reprinted in i8 I.L.M.
at 1444, 1445.
48 See id. art. 8, T.I.A.S. No. 10541, at 6, reprinted in i8 I.L.M. at 1445.

49 Id. art. 2, T.I.A.S. No. 10541, at 4, reprinted in i8 I.L.M. at 1443. The subsequent
Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on the Reduction
of Sulphur Emissions or Their Transboundary Fluxes by at Least 30 Per Cent, July 8, I985,
U.N. Doc. ECE/EB.AIR/12, reprinted in 27 I.L.M. 707, did establish a flat-rate percentage
reduction in sulphur emissions.

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tional agency has scientific legitimacy and expertise. If states believe

that an agency will make decisions and take actions according to
objective standards, they may be more comfortable in ceding some
sovereignty, because they will be able to predict the agency's activities.
The Basel Convention on the Control of Transboundary Move-
ments of Hazardous Wastes and Their Disposal50 illustrates that states'
fears about uncertainty, due in part to the lack of a central agency,
may interfere with the process of treaty ratification. Although the
Basel Convention establishes informed consent for international ship-
ments of waste and entails little cession of sovereignty, many countries
were reluctant to sign it. The Convention has no central enforcing
agency, but instead incorporates widely divergent definitions of haz-
ardous wastes from member countries, thus creating confusion and
ambiguity about what constitutes "waste" and about how much waste
triggers the Convention's hazardous waste criterion.51 Moreover, few
developing countries have signed the Basel Treaty because issues such
as technical assistance, technology transfer, funding, and liability rules
were left unresolved.52 A central treaty agency with the authority to
make, or at least recommend, waste definitions would solve some of
these problems. Such an agency could reduce the confusion over
standards and definitions, and alleviate any fears that these definitions
were generated by political, rather than scientific, means. Less pow-
erful states unable to fend for themselves in a political process might
prefer such a system. Science can thus serve to legitimate environ-
mental decisions.53
Environmental science, however, has not yet achieved complete
precision or accuracy. Measurements can be wrong, and analyses can
be misguided. Even if scientific results are accurate, new data may
50 Opened for signature Mar. 22, I989, 28 I.L.M. 649 [hereinafter Basel Convention]. The
Basel Convention regulates, rather than bans, the export of hazardous wastes. The regulation
of these shipments has become increasingly important as the volume of hazardous waste gen-
erated annually worldwide has risen to more than 300 million metric tons and as developed
nations turn to developing ones for waste disposal. See Hackett, An Assessment of the Basel
Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Dis-
posal, 5 AM. U.J. INT'L L. & POL'Y 291, 294-98 (i990).
51 See Hackett, supra note 50, at 313-I6.
Wastes and Their Disposal, in NINE CASE STUDIES IN INTERNATIONAL ENVIRONMENTAL
NEGOTIATION 75, 92 (L. Susskind, E. Siskind & J. Breslin eds. i99o) [hereinafter NINE CASE
STUDIES]. The Basel Convention does provide that the parties are to develop a protocol to
establish rules and procedures for liability arising out of international shipments of hazardous
wastes. See Basel Convention, supra note 5o, art. 12, 28 I.L.M. at 668. The protocol has not
yet been completed. Although exporting countries must take back waste that cannot be properly
disposed, see id. art. 8, 28 I.L.M. at 666, the Convention does not specify which country is
responsible for paying the costs of waste cleanup.
53 Cf. Gray, The United Nations Environment Programme: An Assessment, 20 ENVrL. L.
291, 309 (i990) (arguing that UNEP's legitimacy stems from its scientific base).

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change circumstances as much as political considerations. Moreover,

there is no guarantee that an international agency will use, or will
continue to use, scientific standards in its decisionmaking process.
Without such a guarantee, states may prefer openly political agencies
in which member states exercise influence and control.54 States' sus-
picions of "objective" decisionmaking procedures therefore stand in
constant tension with desires not to be constrained by expectations
and norms generated through political processes. Powerful states able
to dominate international agencies may dislike objective agencies,
whereas weaker states may prefer them. The promise of agencies lies
in the fact that even powerful states, once they are involved in con-
structing an environmental protection regime, may be constrained by
environmental norms provided by the interaction of states, NGOs,
and a treaty agency. Even if they initially try to dominate the agency
politically, powerful states may find themselves unable to do so. En-
vironmental regimes thus may be "transformative, leading to the em-
powerment of new groups of actors who can change state interests
and practices."55
2. Approaches to the Sovereignty Problem: Getting States to Com-
ply. - To enhance treaty compliance, some observers have empha-
sized the role of international adjudication. International adjudica-
tion, however, is largely consensual; states unwilling to bind
themselves to coercive sanctions are just as wary of compulsory ad-
judication. Agencies that can monitor treaty compliance, gather and
analyze information, and lower information costs without significantly
reducing state sovereignty offer a more realistic alternative for en-
hancing treaty enforcement. By increasing the effectiveness of tradi-
tional mechanisms such as publicity and political pressure, interna-
tional agencies can catalyze enforcement.
(a) Sovereignty Problems: The Failure of International Adjudica-
tion. - Although international courts may offer some guiding prin-
ciples for states regarding their conduct in the environmental area,
ultimately they can do little to prevent environmental damage. The
crux of the problem is that there is no adequate forum for resolving
environmental disputes. The International Court of Justice (ICJ) is
the only international body that can resolve issues of customary in-
54 This may explain why some bilateral treaty agencies for regulating transboundary pollution
have been reasonably successful. See infra p. 1578. However, in the case of the International
Boundary and Waters Commission (IBWC) established by the United States and Mexico, see
infra note 143, the United States, although certainly not fearing that it would be dominated,
has often been unwilling to risk an unfavorable outcome by referring disputes to impartial
mediation in the IBWC. See Note, The International Joint Commission (United States-Canada)
and the International Boundary and Water Commission (United States-Mexico): Potential for
Environmental Control Along the Boundaries, 6 INT'L L. & POL. 499, 5I6 (I973).
55 Haas, Do Regimes Matter? Epistemic Communities and Mediterranean Pollution Control,
43 INT'L ORG. 377, 380 (I989).

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I562 HARVARD LAW RE VIEW [Vol. I04: I484
ternational law.56 For example, the court has held that each nation
has an obligation to control pollution that adversely affects other
nations.57 In the I949 Corfu Channel case,58 the ICJ held that "
every State's obligation not to allow knowingly its territory to be used
for acts contrary to the rights of other States."59 Similarly, a tribunal
in a United States-Canadian dispute over fumes from a smelter in
British Columbia said in dictum that no state "has the right to use or
permit the use of its territory in such a manner as to cause injury
. . .to the territory of another or the properties or persons therein,
when the case is of serious consequence and the injury is established
by clear and convincing evidence."60 However, these general princi-
ples of international law are unlikely to be very helpful in preventing
environmental damage. They are not well defined, nor are they read-
ily applicable to particular disputes. Parties to a dispute ordinarily
will call these principles into play only after an environmental harm
has occurred. Moreover, it will often be difficult to demonstrate
specific, identifiable sources of pollution as required by international
law.6' Although the actio popularis doctrine, which allows a com-
plaining state to vindicate the rights of the international community,
has been gaining support, the court has been reluctant to recognize
this line of argument.62
Courts such as the ICJ do not necessarily possess sufficient exper-
tise in environmental matters to enforce environmental commitments.
Only states have standing before the court; NGOs and individuals
may be the best situated and most willing to bring suits, but are
barred from doing so and must look to their own countries to espouse
their cases.63 Moreover, unless the suit is brought under an environ-
mental treaty that provides for compulsory adjudication of a dispute,64
56 Other appropriate international bodies may be able to pronounce customary law, although
the ICJ may have final jurisdiction. Cf. M. Bos, A METHODOLOGY OF INTERNATIONAL LAW
65-66 (I984) (discussing role of "competent international authority" in pronouncing customary
international law).
57 Cf. Stockholm Declaration, supra note 27, Principles 2I-22, reprinted in ii I.L.M. at
I420 (stating the general obligation).
58 (U.K. v. Alb.), I949 I.C.J. 4 (Apr. 9).
s Id. at 22.
60 Trail Smelter (U.S. v. Can.), 3 R. Int'l Arb. Awards 1905, I965 (I941) (final decision).
61 Cf. Wetstone & Rosencranz, Transboundary Air Pollution: The Search for an International
Response, 8 HARV. ENVTL. L. REv. 89, 122-23 (I984) (discussing the difficulty of identifying
specific sources of pollution and the legal requirement to do so).
62 See A. SPRINGER, supra note 30, at 158.
63 See Statute of the International Court of Justice, June 26, 1945, art. 34, cl. I, 59 Stat.
1055, T.I.A.S. No. 993 [hereinafter ICJ Statute].
64 While some environmental treaties do encourage the parties to submit disputes to the
court as a matter of last resort, few explicitly create a duty to do so. See A. SPRINGER, supra
note 30, at 157. The Basel Convention directs parties to arbitrate disputes, and if arbitration
fails, to pursue the dispute in the International Court of Justice. See Basel Convention, supra

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I99I] DEVELOPMENTS -INTERNATIONAL ENVIRONMENTAL LAW I563
or unless the parties to the dispute have agreed to the court's juris-
diction in other statements, the court's jurisdiction depends on the
consent of both parties.65 The refusal of France to submit to the
adjudication of its dispute with Australia and New Zealand regarding
pollution generated by French nuclear testing in the South Pacific
exemplifies the problems inherent in noncompulsory jurisdiction.66
(b) Monitoring by International Agencies: A Response to Sover-
eignty Problems. - Although international adjudication of environ-
mental treaties enforced by coercive sanctions is unlikely to emerge,
the simple step of having agencies monitor treaty compliance may go
a long way toward ensuring meaningful treaties.67 International agen-
cies can lower the information gathering and processing costs incurred
by states, NGOs, and international organizations without significantly
interfering with state sovereignty, thereby making a contribution to
monitoring treaty obligations. In the United States, the Securities and
Exchange Commission (SEC) performs an analogous function. Indi-
vidual investors do not usually read SEC reports in order to protect
themselves. Instead, they rely on intermediaries - brokers and in-
stitutional investors - who do read the SEC reports.68 In the inter-
national field, an international agency established by an environmental
treaty would correspond to the SEC, states would correspond to bro-
note 50, art. 20, 28 I.L.M. at 675. Only a handful of other environmental treaties concluded
prior to the Basel Convention adopted similar mechanisms. See, e.g., International Convention
for the Prevention of Pollution of the Sea by Oil, opened for signature May I2, I954, I2 U.S. T.
2989, T.I.A.S. No. 4900, 327 U.N.T.S. 3. Although both the Convention on Early Notification
of a Nuclear Accident, opened for signature Sept. 26, I986, 25 I.L.M. I370 [hereinafter Early
Notification Convention], and the Convention on Assistance in the Case of a Nuclear Accident
or Radiological Emergency, opened for signature Sept. 26, I986, 25 I.L.M. I377 [hereinafter
Nuclear Assistance Convention] specified that dispute resolution would take place in the Inter-
national Court of Justice, these provisions were contained in optional protocols. Most countries
ratifying the treaties opted out of these provisions. See Reservations and Declarations Com-
municated in Writing to the Depositary, 25 I.L.M. I395, I395-I407.
65 See ICJ Statute, supra note 63, art. 36. However, the court can determine its own
jurisdiction "in the event of a dispute." Id. See generally S. ROSENNE, THE WORLD COURT:
WHAT IT IS AND How IT WORKS 97-I02 (I989) (discussing preliminary objections to court's
jurisdiction).
66 See Nuclear Tests (Austl. v. Fr.), I974 I.C.J. 253, 255-57 (Judgment of Dec. 20); Nuclear
Tests (N.Z. v. Fr.), I974 I.C.J. 457, 458-6I (Judgment of Dec. 20). Because France announced
its intention to stop atmospheric nuclear testing by the end of I974, the court, in its final
judgment, stated that the issue raised by Australia and New Zealand had been rendered moot.
See Austi. v. Fr. at 27I; N.Z. v. Fr. at 476.
67 See A. Chayes, Managing the Transition to a Global Warming Regime or What to Do
Till the Treaty Comes 3-4 (Aug. io, I990) (unpublished manuscript on file at Harvard Law
School Library) (arguing that international organizations can improve compliance through sys-
tematic reporting, consultation, and surveillance).
68 The SEC's goal "is to mitigate imperfections in the securities markets by making it easier
for participants to engage in informed decision making." R. CLARK, CORPORATE LAW ? 17.2. I,
at 720 (I986).

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kers and individual investors (depending upon their size and sophis-
tication), and NGOs and citizens would correspond to the individual
investors in the securities market. By gathering, analyzing, and dis-
tributing environmental data, international agencies can lower the
costs for these actors, and in so doing raise the probability that they
will become involved in the enforcement process.69 The agencies can
also increase the effectiveness of traditional enforcement mechanisms
such as negative publicity and political pressure.
The costs that can be saved by adoption of a centralized system
of international agencies may be significant even when monitoring the
environmental harm at issue is relatively straightforward.70 In the
case of the two nuclear accident conventions,71 the development and
implementation of a monitoring mechanism is left to the individual
states in which nuclear facilities are situated, except for those tasks
already assigned to the International Atomic Energy Agency. Al-
though this system may be efficient for wealthy nations that want to
protect their citizens from nuclear accidents, a better monitoring sys-
tem would be centralized and would be capable of "acquiring, ana-
lyzing, and synthesizing data from a worldwide network of stations,
and mandated to take speedy notification and assistance decisions
should the need come."72 By centralizing monitoring efforts and fa-
cilities, states can reduce redundant expenditures, share costs on a
more equitable basis, and thereby provide LDCs with access to the
same information that is available in developed countries.
International agencies must also expend resources to monitor,
gather, and analyze data. LRTAP, for example, has moved toward
increased centralization. It has established an Interim Executive Body
to coordinate control of transboundary air pollution under the ECE
Secretariat.73 The Interim Executive Body, composed of high-level
officials from LRTAP's signatory states, meets annually and is sup-
ported by a permanent Secretariat headquartered with the ECE in
Geneva.74 Initially, the Body set up a multilateral research program,
69 In the human rights field, watch groups established under the auspices of the Conferenc
on Security and Cooperation in Europe: Final Act, Aug. I, 1975, 14 I.L.M. 1292, have played
a major role in the development of human rights in Eastern Europe. See Scammell, supra note
28, at 29.
70 Most environmental monitoring is not straightforward. For example, in ground an
pollution, there are thousands of toxic chemicals that may require substantial scientific i
gation to track and identify. In air pollution, tracking the source of the pollution may b
difficult, if not impossible.
71 See Early Notification Convention, supra note 64; Nuclear Assistance Convention, supra
note 64.
72 Bodea, The Convention on Early Notification and on Assistance in the Case of Nuclear
Accident, in NINE CASE STUDIES, supra note 52, at I99, 2II.
73 See LRTAP, supra note 45, art. IO, T.I.A.S. No. I0541, at 7, reprinted in i8 I.L.M. at
I47.
74 See Comment, supra note 46, at 447, 456-57.

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gathered country-specific information on sulphur control policies, and

established a consultation mechanism for signatories. Subsequently,
it has directed research activities such as monitoring the concentration
and location of air pollutants, developing control technologies, and
conducting cost-benefit analyses of emission reduction programs. 75
Unfortunately, the ECE Secretariat is underfunded and its environ-
mental unit has only seven staff members who must deal with many
environmental problems in addition to transboundary air pollution.76
Nevertheless, the efficiencies of centralized monitoring (eliminating
redundant state-based monitoring and free riders) should outweigh the
costs of such a scheme. Over time, by fostering environmentalism in
member states' governments,77 international agencies may demon-
strate these benefits to those states, and persuade them to increase
agency funding.
By lowering states' costs for gathering and analyzing data, inter-
national agencies may permit states to shift resources to other priorities
and at the same time allow NGOs and environmental groups to
monitor treaty compliance. By reducing NGOs' costs for gathering
and analyzing information, international agencies can enable these
organizations to spend more resources on publicity campaigns and
direct political pressure. Public embarrassment can be more easily
brought to bear on states that are not complying with environmental
treaties if data on compliance is readily available. Agency monitoring
can also reduce the fears of complying states that other countries will
become free riders. Finally, by generating scientific and objective
data, an international agency can legitimize its statements and rec-
ommendations, thus giving the agency further leverage in convincing
recalcitrant states to comply with treaty obligations.
Centralized monitoring imposes other noneconomic costs. Treaty-
established international agencies may raise sovereignty concerns for
states, as discussed above. 78 Unfortunately, there is a tension between
respecting state autonomy and ensuring effective treaty compliance.
The greater the effort to protect state sovereignty, the more monitoring
may suffer. For example, the Secretariat designed to supervise the
Basel Convention's implementation79 facilitates the flow of informa-
tion contained in the treaty-mandated waste manifests that must ac-
company every international shipment of waste;80 it does not monitor
compliance.81 The CITES Secretariat has only a slightly larger role,
75 See Wetstone & Rosencranz, supra note 6i, at 89, I05.

76 See id.

78 See supra pp. I560-6I.
79 See Basel Convention, supra note 50, art. i6, 26 I.L.M. at 67I.
80 See id. art. 6, 28 I.L.M. at 664.
81 See Hackett, supra note 50, at 29I, 3I9.

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"[acting] as a clearing-house for information on wildlife trade, com-

municating with party and non-party governments, inter-governmen-
tal agencies, and non-governmental organizations."82 Nothing, how-
ever, precludes the creation of agencies with broader powers. The
exact balance between monitoring capabilities and sovereignty con-
cerns will depend on the nature of the treaty. For example, an
international agency established to monitor water quality in a river
that crosses several state borders could set up stations to monitor the
emissions from an upstream state just inside the border of the next
downstream state. In this way, each monitoring station would not
directly implicate the host state's activities. The task of monitoring
becomes more problematic in the case of air pollution, in which
hundreds or thousands of point sources within each state may be
implicated. Unless monitoring facilities are established within each
pollution producing state, it may be impossible to determine the source
of transboundary pollution. Monitoring waste disposal and waste
production within states rather than monitoring ambient air quality is
even more problematic, as it would be more intrusive. Conversely,
in the case of intentional transboundary shipments, of wastes or wild-
life, international agencies may be better positioned to monitor and
even control shipment authorizations and permits. In these cases,
monitoring will raise fewer sovereignty concerns than other enforce-
ment mechanisms such as coercive sanctions.
C. Economic Defection
Sovereignty concerns are not the only barriers to effective inter-

national environmental commitments. Environmental treaties, de-
pending on their scope and subject matter, require substantial eco-
nomic sacrifices by the nations that are parties to them. These
economic concerns may both inhibit treaty ratification and undermine
treaty compliance. For example, the United States' desire to minimize
the costs associated with industrial activity has continually inhibited
any comprehensive agreement with Canada on acid rain.83 A possible
solution to the impasse would be for Canada to pay the United States
to install pollution control equipment on its acid rain producing plants
and equipment. Whether Canada would be willing to pay is uncer-
tain, but the situation illustrates the principle that environmental
82 Thomsen & Brautigam, CITES in the European Economic Community: Who Benefits?, 5
B.U. INT'L L.J. 269, 27I (I987).
83 For example, a Memorandum of Intent Between the United States and Canada Concern
Transboundary Air Pollution, Aug. 5, I980, 32 U.S.T. 252I, T.I.A.S. No. 9856, was signed
I980. The Memorandum, however, has neither force nor effect as a treaty and relies mer
upon mutual goodwill for its implementation. See Smith, Acid Rain: Transnational Perspect
4 N.Y.L. SCH. J. INT'L & COMP. L. 459, 498-99 (I983); see also J. BRUNNEE, supra note 45,
at I98-207 (discussing the history of the Memorandum's implementation).

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protection will not come cheaply. States that want increased environ-
mental protection may have to compensate other states for costs in-
curred in abstaining from or curtailing harmful economic activities.
These transfers could be incorporated into an economic incentive
system established by an environmental treaty, but establishing and
monitoring such a system may raise sovereignty concerns. The Mon-
treal Protocol, the only environmental treaty that has used this ap-
proach, has not constructed a totally effective system. NGOs and
international development agencies also may provide economic incen-
tives, and thereby circumvent the state-to-state level of traditional
international law. By marshaling funds from many individuals,
NGOs can provide a small economic carrot to induce states to increase
environmental protection, and international development agencies can
threaten denial of their resources to goad states into environmentalism.
i. Incentive Structures. - The most prominent example of an
international environmental treaty that incorporates an economic in-
centive structure is the Montreal Protocol. The Montreal Protocol
establishes schedules for the ultimate elimination of the production of
certain chemicals that deplete the ozone layer, the layer of the Earth's
atmosphere that protects the surface from the harmful effects of the
sun's ultraviolet light. The scientific community has long recognized84
that certain chemicals known as chlorofluorocarbons (CFCs) used in
refrigeration systems, air conditioners, insulation, and aerosol spray
cans,85 and chemicals called halons used in fire extinguishers,86 can
cause serious damage to the ozone layer. Although the Protocol pro-
vides for the curtailment of production and consumption of CFCs, it
merely freezes production and consumption of halons at I986 levels.87
The Protocol provides for a multiple-step freeze and percentage re-
duction of CFC levels.88
The Protocol attempts to ensure enforcement through an incentive
system of trade barriers and side payments. It erects trade barriers
on three types of products: controlled substances in bulk form, CFC-
products, and products made with CFCs.89 Although the Protocol
requires signatories to ban the import of bulk CFCs within one year
of the Protocol's entry into force, it postpones the determination of
which CFC-products will be banned. Products made with CFCs,
84 Concerns initially arose in the early I970s. See Molina & Rowland, Stratospheric Sink
for Chlorofluoromethanes: Chlorine Atom Catalyzed Destruction of Ozone, 249 NATURE 8io
('974).
85 See Doolittle, Underestimating Ozone Depletion: The Meandering Road to the Montreal
Protocol and Beyond, I6 ECOLOGY L.Q. 407, 4IO (I989).
86 See Recent Developments, International Agreements, 29 HARV. INT'L L.J. I85, I87
87 See Montreal Protocol, supra note 39, art. 2(2), 26 I.L.M. at I552.
88 See id. art. 2(I)-(4), 26 I.L.M. at I552-53.
89 See Note, supra note 43, at 227-28.

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such as electronic equipment cleaned with CFC solvents, may be

subject to a future ban if the parties deem such a ban "feasible."90
Countries not party to the Protocol are disadvantaged by the trade
barriers and do not have access to environmental technologies related
to CFCs developed by parties.9'
The incentive structure has gaps, however. Because certain prod-
ucts produced with CFCs may be imported by a party without vio-
lating the Protocol, countries that make these products may have no
incentive to join the Protocol and in fact may have an incentive to
augment or create new CFC-using industries. Moreover, developing
countries can join the Protocol but effectively opt out in order to meet
"basic domestic needs."92 It is unclear whether this exemption in-
cludes export markets. If it does, developed countries that are parties
to the Protocol can transfer CFC industries to developing countries,
thus undercutting the goal of reducing CFC production.93
The Protocol also provides for payments by developed countries
to LDCs to refrain from using CFCs and to purchase CFC substitutes.
At the parties' I990 London meeting, a three-year, $240 million inter-
national ozone defense fund was established to convert factories in
developing countries that use CFCs and other ozone-depleting sub-
stances to more ozone-friendly chemicals, to implement country stud-
ies, and to train people.94 Payments of this type raise a fairness issue:
should a country such as the United States pay according to its share
of environmental benefit, or according to its capacity to do so? Dis-
agreements over the answer to this question may complicate negotia-
tions of future treaties. The Protocol also exacerbates the inadequacy
of the incentive structure and the side payments because it does not
provide any monitoring or enforcement mechanisms. Instead, it leaves
these issues for resolution at the first meeting of the parties.95
90 Montreal Protocol, supra note 39, art. 4(4), 26 I.L.M. at I555.

91 See id. art. 4(5)-(6), 26 I.L.M. at I555.
92 Id. art. 5, 26 I.L.M. at I555-56.
93 See Note, supra note 43, at 240. A similar effect may take place in the context of the
CITES treaty, in which corporations and individuals may move their processing facilities to
countries with indigenous populations of endangered species, taking advantage of both the
treaty's inability to regulate internal trade and the inability of CITES enforcement agents to
identify processed animals and plants. Commercial specimens bred in captivity receive special
exemptions under CITES. See CITES, supra note 33, art. VII(5), 27 U.S.T. at II00, T.I.A.S.
No. 8249, at I4, 993 U.N.T.S. at 249.
94 See Montreal Protocol: Phase-Out of CFCs Achieved, 20 ENVT'L POL. & L. I34, I35
(I990).
95 See Montreal Protocol, supra note 39, art. 8, 26 I.L.M. at I556. At the I990 meeting in
London, the parties instituted a more rapid phase-out for controlled CFCs and halons and
added chemicals to the regulatory list. See Benedick, Protecting the Ozone Layer: New Direc-
tions in Diplomacy, in PRESERVING THE GLOBAL ENVIRONMENT I 12, 137 (J. Matthews ed.
I99I). The parties, however, did not make much progress towards addressing monitoring or
enforcement. See Montreal Protocol: Phase-Out of CFCs Achieved, supra note 94, at I34-35.

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In spite of the relatively strong system of trade barriers and side

payments incorporated into the Montreal Protocol, there are reasons
to suspect that states may not honor their commitments under systems
similar to the Protocol. In the ozone layer regime, unlike, for example,
the animal wildlife protection regime, there are strong economic in-
centives for state defection. The killing and illegal transport of wild-
life primarily benefits poachers and individual collectors, whereas in-
come derived from wildlife tourism is a powerful incentive for states
to comply. The tremendous pressure on developing countries, how-
ever, to build and modernize their infrastructures and provide services
for their citizens inevitably creates a demand for CFCs. Payments by
developed countries to LDCs can help offset these economic pressures,
but they cannot completely compensate for the incentives to produce
and use CFCs caused by the deficiencies in the Protocol itself, defi-
ciencies which resulted from the need to address sovereignty con-
cerns.96 Moreover, developed countries may be especially unwilling
to pay the much larger amounts required to compensate LDCs for
refraining from activities such as those responsible for producing
global warming gasses.
Although the Montreal Protocol has serious shortcomings, its po-
tential for success is relatively enhanced because only a small number
of corporations produce CFCs and at least one of them, DuPont, is
actively pursuing production of an ozone-friendly substitute.97 Other
global environmental problems that raise the same tensions between
developed and developing countries such as global warming will not
fare as well in the absence of the special favorable conditions of the
Montreal Protocol. 98 Substantive quantitative emissions limits on
global warming gases will not be established for some time, if at all.99
2. Circumventing the State Level: NGOs and States. - Because
states often compete with each other for economic resources, and
because national governments will usually feel that they bear primary
responsibility for the welfare of their citizenry, side payments such as
those in the Montreal Protocol probably will not be a common feature
of international environmental agreements in the near future. The
global and intergenerational spread of environmental harms leads
states to discount environmental harms and makes them less willing
Undoubtedly, sovereignty considerations are partially responsible: both monitoring production

of ozone-depleting chemicals and establishing sanctions for violations would infringe substantially
upon state autonomy.
96 See supra pp. I557-59.
97 See Granda, The Montreal Protocol on Substances that Deplete the Ozone Layer, in NINE
CASE STUDIES, supra note 52, at I, 32.
98 "[TIhe indications to date are that the developed countries will not provide large financial
incentives for limiting [global warming] emissions, at least not initially." A. Chayes, supra note
67, at 3.
99 See id.

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to pay other states to mitigate these harms. At the same time, because
many developing countries cannot bear the cost of eliminating the
regional or global environmental externalities that they produce, in-
ternational environmental treaties may be endangered by state defec-
tion.100 Because many developing countries are also debtor nations,
they may be obliged by market pressures and institutions such as the
International Monetary Fund to use, rather than preserve, environ-
mental resources. For example, several Latin American countries
have been converting rain forests to agricultural use in order to satisfy
economic needs. To address the dual problem that developing coun-
tries face, Thomas Lovejoy, then vice-president of the World Wildlife
Fund, devised the concept of debt-for-nature swaps. In a debt-for-
nature swap, an international environmental organization buys foreign
debt in exchange for an agreement by the debtor country to protect
its natural resources or to promote conservation. Although the em-
phasis of debt-for-nature swaps is on conservation rather than on
relieving debt, debt-for-nature swaps do relieve debtor countries from
having to pay the future interest that would have added to the coun-
try's total debt.101 As of early I990, ten major swaps of commercial
bank debt had been concluded between international nonprofit orga-
nizations and eight countries, including Bolivia, Ecuador, Costa Rica,
The Philippines, Zambia, Madagascar, and the Dominican Repub-
lic.102 To encourage banks to donate LDC debt for charitable pur-
poses, tax policies in the United States and other developed countries
could be restructured. 103
Although the details of each swap vary, debt-for-nature swaps
often specify standards for conservation strategies and require local
conservation organizations to collect and submit data to the interna-
tional environmental organizations. Debt-for-nature swaps also some-
times establish special oversight committees to monitor the implemen-
tation of agreements. However, enforcing the implementation of local
conservation programs has been problematic. Countries such as Bo-
livia do not have the capacity to enforce their domestic environmental
commitments because they lack funding and personnel.104 Enforce-
ment ultimately depends on the developing country's commitment to
the agreement and its capacity to implement it.
100 See Note, supra note i, at 403.

101 See Dawkins, Debt-for-Nature Swaps, in NINE CASE STUDIES, supra note 52, at I, 2.
102 See id. at 5.
103 In the United States, the Department of the Treasury has already taken encouraging
steps by issuing Rev. Rul. 87-I24, I987-2 C.B. 205, which permits deductions for debt-for-
nature swaps. Critics suggest that this ruling is prone to abuse. See Comment, Revenue Ruling
87-124: Treasury's Flawed Interpretation of Debt-for-Nature Swaps, 43 U. MIAMI L. REV. 72I,
723-26 (I989).
104 See Dawkins, supra note ioi, at I3-I6.

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iggi] DEVELOPMENTS - INTERNATIONAL ENVIRONMENTAL LAW I57I
Despite these problems, debt-for-nature swaps could be used as a

foundation for regional or international environmental conservation
treaties. Developing countries would welcome efforts by developed
countries to share the costs of environmental protection and the pros-
pect of such aid might entice otherwise unwilling countries to nego-
tiate. Developed countries, which might not wish to pay other nations
for environmental protection, would also welcome the financial par-
ticipation of environmental groups. Because the environmental
groups' funds are contributed by volunteers, only those who want to
bear their share of the cost of global environmental protection will do
so.105 Additionally, because membership in environmental groups is
international, the international community would truly contribute to
protecting globally-significant environmental resources. Moreover,
debt-for-nature swaps can be self-enforcing if violations of the terms
of the swap would return the obligation for the debt to the developing
country. The threat of return would serve as an enforcement mech-
anism for as long as the debt remained outstanding.106 Enforcement
also could be enhanced if international environmental organizations
were given standing in national courts and international tribunals.107
Because the amount of debt that could be retired through debt-
for-nature swaps is small, however, it is unlikely that these swaps
will have a significant impact on environmental conservation. Only
about $ioo million of outstanding debt has been retired through debt-
for-nature swaps.108 Moreover, projects subsidized through debt-for-
nature swaps are oriented toward parks, wild lands, and protection
programs. The swaps are not as well-suited to undertake broader
environmental projects, which are usually carried out by government
agencies and the private sector. 109 Finally, although outstanding debt
obligation is certainly a contributing factor, it is not the only reason
developing countries fail to cooperate in environmental protection.110
Nevertheless, by encouraging the participation of NGOs, private in-
dividuals, and environmental experts in both developed and devel-
oping countries, debt-for-nature swaps could help modestly in many
parts of the world.
3. Circumventing the State Level: International Agencies and
States. - Development agencies and financial institutions can play a
105 Of course, this mechanism raises the familiar free rider problem.
106 Over time, however, the deterrent effect would diminish.
107 Cf. Sands, The Environment Community and International Law, 3O HARv. INT'L L.J.
393, 414-I7 (I989) (arguing that flexible standing requirements would facilitate enforcement of
supranational rules).
108 See Dawkins, supra note ioi, at 2.
109 See Patterson, Debt-for-Nature Swaps and the Need for Alternatives, ENV'T, Dec. I99O,
at 5, IO.
11O See id. at 6.

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large role in controlling the environmental impact of developing coun-

tries' development projects. 1" Over the past two decades, develop-
ment assistance agencies have begun to recognize that development
may cause permanent and serious damage to the environment, damage
that ultimately impedes sustainable economic growth. Accordingly,
these agencies have begun to reformulate their policies to include
environmental protection incentives. The goal of this policy, known
as ecodevelopment, is "development that is ecologically, economically,
and socially sustainable.""112
Among the most important of these agencies has been the Inter-
national Bank for Reconstruction and Development (the World
Bank)."13 The multilateral development banks, and especially the
World Bank, have more influence on development financing and pol-
icy than any other international or bilateral institutions. In I983, the
banks lent over twenty billion dollars to fund projects in developing
countries, four times the amount committed by the United States
Agency for International Development, the largest bilateral develop-
ment agency. 114 The World Bank was also the first multilateral
agency to take into account the environmental impact of its activi-
ties. 115
The major multilateral development assistance agencies in I980
agreed to the Declaration of Environmental Policies and Procedures
Relating to Economic Development.116 Later that year the signatories
of the Declaration established the Committee of International Devel-
opment Institutions on the Environment (CIDIE) to review periodi-
cally the progress of signatories in furthering the goals of the Decla-
ration."17 The World Bank also has adopted regulations that preclude
financing any project involving the export or disposal of hazardous
waste from another country.118
Although the World Bank has been a leader of international or-
ganizations in environmental policy, its Office of Environmental and
Scientific Affairs has only a handful of staff members to review the
environmental impact of the projects it funds."19 The World Bank
111 See Barbut, What Financial Institutions Can Do, in STRENGTHENING ENVIRONMENTAL
CO-OPERATION WITH DEVELOPING COUNTRIES 8I (OECD ed. I989).
112 Muldoon, supra note 5, at 5 (footnote omitted).
113 The World Bank consists of the International Bank for Reconstruction and Development
(IBRD), the International Development Association (IDA), and the International Finance Cor-
poration (IFC). The other major multilateral development banks are the Inter-American De-
velopment Bank, the Asian Development Bank, and the African Development Bank.
114 See Rich, supra note 4, at 685.
115 See Note, Providing for Environmental Safeguards in the Development Loans Given by
the World Bank Group to the Developing Countries, 5 GA. J. INT'L & COMP. L. 540, 544 (I975
116 Feb. I, ig80, i9 I.L.M. 524.
117 See Muldoon, supra note 5, at 27-28.
118 See Hackett, supra note 5o, at 3IO.
119 See Rich, supra note 4, at 707.

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has prepared environmental guidelines, but as one commentator ob-

served, "existing regulations and staffing are insufficient to ensure their
systematic use and early integration into project design."'120 Moreover,
the Bank does not automatically initiate environmental assessments
even for projects with large environmental impacts. 121
Although the World Bank has begun some environmental pro-
grams on its own initiative, there is little reason to believe that these
programs will be significantly augmented in the future or that the
Bank will use its influence to enforce international environmental
commitments. None of the Bank's three "accountability systems"
strongly induces the Bank to implement environmental policies. 122 In
the financial arena, the Bank is not accountable for the environmental
impact of individual projects.123 In the political arena, the structure
of the Bank provides little opportunity for members to impose their
policies. National finance ministries, which have the most influence
at the Bank, are usually unconcerned with environmental policy.124
Furthermore, in the community of development professionals, lobby-
ists, scholars, other international agencies, and borrowing members,
no group has a decisive influence on the Bank's policies.125 Conse-
quently, the success of the Bank and other similar multilateral devel-
opment agencies has been rather checkered. Increasing NGO access
to the Bank could alleviate these problems. 126
D. Additional Benefits of International

Environmental Agencies
i. Bypassing the State Level: International Agencies. - Interna-

tional environmental agencies, by monitoring treaty compliance, can
increase the likelihood that environmental treaties will be signed and
enforced. Their actions also can indirectly lead to greater environ-
mental protection. By establishing links with grass roots environmen-
tal organizations, the agencies can minimize local problems that might
threaten treaty implementation. By maintaining contacts with envi-
ronmentalists and experts, the agencies can influence national policy
from within the state, working with and within national governments
to train officials and foster an environmental ethic. International
120 Id. at 708.

121 See id.
122 Horberry, The Accountability of Development Assistance Agencies: The Case of Environ-
mental Policy, 12 ECOLOGY L.Q. 817, 850-55 (1985).
123 See id. at 85I & n.I22, 854.
124 See id. at 854.
125 See id. at 855.

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agencies can undertake these activities at a low cost and without

significantly impinging on state sovereignty.
The context of the transfer in October I989 of the African elephant
from an endangered listing to a threatened listing under CITES127
provides an interesting example of how local economic problems may
threaten treaty implementation, and how agencies could help to reduce
such a threat. The transfer has been widely praised as an important
step in protecting the African elephant, especially in Kenya, but do-
mestic factors may limit its success. Although Kenya may derive
significant funds from wildlife tourism to offset the costs of ceasing
its ivory trade, other countries are not so fortunately situated. A
healthy tourist trade does little to encourage local populations to be-
come involved in elephant management and protection. These people
often see the elephant merely as a threat to their crops and livelihood.
Yet without their cooperation, the elimination of elephant poachers
may be insufficient to protect the elephant population. However,
moving elephants into small parks or reserves where they would not
interfere with local agriculture could endanger important woodland
ecosystems, other species, and even the elephants themselves.128
The CITES Secretariat, as well as other international agencies,
could address these problems by contacting local groups, teaching local
populations about elephant management, and encouraging conserva-
tionism. These activities would require only a small number of people
to train volunteers who could then train others throughout the country;
costs would be minimal. States such as Kenya, which will receive
the benefits of larger elephant populations and increased tourism,
improved agricultural techniques, and possible technology transfer,
will be unlikely to object to these contacts on sovereignty or economic
grounds. 129 Even if they are aware that the CITES Secretariat would
be shaping the attitudes of their citizens, these states will likely dis-
count this effect in favor of more immediate economic interests. More-
over, they probably will be unwilling to challenge environmentalism
itself, especially if they are already parties to at least some environ-
mental treaties. In the field of human rights, for example, the Soviet
Union likely did not anticipate, or it discounted, the effects of its
participation in the Helsinki process that created domestic watch
127 See Arend, Ivory Elephants or Both: Negotiating the Transfer of the African Elephant to
an Appendix II Within CITES, in NINE CASE STUDIES, supra note 52, at 99, I00.
128 See Nova: Can the Elephant Be Saved? (PBS television broadcast, Nov. 20, I990)
(transcript on file at the Harvard Law School Library).
129 Even those states that do not enjoy a large tourist trade because they are less accessible
will not object on sovereignty grounds. Economic pressures in these states may still threaten
the survival of the elephant. At the very least, research conducted by NGOs and international
agencies in these states may lead to the discovery of new ways to make elephant protection
economically viable.

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groups. 130 A public renunciation of these principles would arouse

substantial negative publicity and political pressure.
NGOs, like international agencies, can play a role in grass roots
activities. Debt-for-nature swaps often specify standards for conser-
vation strategies and require local conservation organizations to collect
and submit data to the international environmental organization. By
maintaining this exchange of information and requiring the partici-
pation of local groups, NGOs can help foster an environmental ethic
at the local level. If local populations are causing environmental
damage because they lack sufficient information to make informed
decisions, these programs can educate them. Moreover, because en-
vironmental costs are often to some degree speculative, in marginal
cases grass roots activity may be sufficient to convince people that the
costs of continuing damage outweigh the benefits (perhaps by altering
the cost-benefit analysis itself in favor of environmentalism).131 Ad-
mittedly, when individuals have knowingly accepted the costs, com-
munication and education will not advance environmental protection.
Although the attitudes of individuals, such as the farmers in
Kenya, may pose serious problems for international environmental
protection regimes, cooperation alone cannot guarantee that these re-
gimes will be built or maintained. State governments must also assent
to and implement treaties. By encouraging the formation and devel-
opment of "epistemic communities"132 of environmental experts inside
and outside state governments who have the scientific and political
clout at the state level to build and transform international environ-
mental regimes, international agencies can bypass the traditionally less
effective state-to-state level of international law.
States, like corporations, are legal fictions, composed only of or-
ganized groups of individuals. International law traditionally has
treated states as "black boxes" and has been unconcerned with their
internal structures. This focus has resulted in proposals to strengthen
environmental regimes and to constrain states by building agencies
with broad regulatory powers or by constructing coercive sanctions
systems. Modern international human rights law has begun to ac-
knowledge that states are not black boxes, by focusing on the duties
states owe to their own citizens. 133 By similarly shifting the focus of
attention from the state-to-state level to that of NGOs, experts, and
government officials, international agencies can increase the probabil-
130 "[T]he strategy of early Soviet dissidents like Alexander Esenin-Volpin and Valery Chal-
idze was precisely to force the Soviet authorities to observe their own laws, their own legal
enshrinement of some of these rights." Scammell, supra note 28, at 30.
131 Cf. supra p. I55I (discussing the concept of intergenerational equity and its effect on
cost-benefit analysis).
132 See Haas, supra note 55, at 377.
133 See B. CARTER & P. TRIMBLE, INTERNATIONAL LAW CASEBOOK 825 (I99I).

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ity of state cooperation with environmental protection regimes. For

example, the International Joint Commission (IJC) established by the
United States and Canada in I909 by the Boundary Waters Treaty134
lacks the regulatory authority to directly enforce its recommendations,
but it does have powers that depend not on the I909 treaty itself but
"on its ability to build a coalition among governmental experts and
interested members of the general public in support of its recommen-
dations."1135 Similarly, by establishing direct links that bypass national
foreign ministries (with permission from the relevant states), the
United Nations Environment Programme (UNEP) has achieved such
successes as the Mediterranean Pollution Monitoring and Research
Programme. 136 By fostering environmental communities, and by
widely publicizing its activities, UNEP has contributed to the devel-
opment of an environmental ethic.137
International agencies can enhance compliance with environmental
treaties in a more direct fashion by providing training for state offi-
cials. The costs of training programs for state officials probably would
be low. Moreover, the benefits of saving even a few more endangered
species from extinction would outweigh the associated costs. By fo-
cusing on the people who comprise state governments, rather than on
the governments themselves, international agencies can encourage en-
vironmentalism at the national level. To be sure, states still may face
strong economic pressures to refuse to sign or implement environmen-
tal treaties. Yet to the extent that state officials may be making
environmental decisions based on inadequate information, interna-
tional agencies can help educate these officials and thereby eliminate
unnecessary environmental damage. Even when the economic choices
are starker, such as when LDCs agreed under the Montreal Protocol
to refrain from producing ozone-depleting chemicals, the total costs
and benefits of treaties are often unclear. If LDCs still were skeptical
about the goals of the environmental movement, they may have re-
jected the Montreal Protocol even with its side payments. In these
marginal cases, an environmental ethic imparted by international
agencies and NGOs may be enough to move states into compliance.
2. Agency Structure. - International agencies may benefit by
adopting certain structural features.138 International agencies should
attempt to allow for maximum NGO access. Although resistant states
134 Boundary Waters Treaty, Jan. ii, I909, United States-Great Britain, 36 Stat. 2448,
T.I.A.S. No. 548 [hereinafter Boundary Waters Treaty].
135 A. SPRINGER, supra note 30, at I64.
136 See Development, The United Nations Environment Programme After a Decade: The
Nairobi Session of a Special Character May I98I, I2 DEN. J. INT'L L. & POL'Y 269, 278 (1983).
137 See Gray, supra note 53, at 304.
138 For a more detailed discussion of this issue, see infra pp. I6oo-04.

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could block the development of substantive environmental policies in

these agencies, environmentally-conscious states could insist on open
access by NGOs.139 Greater access by environmental groups will
increase the probability that an international agency will adopt an
environmental ethic. International agencies should also be flexible
and open to input on a variety of environmental issues in order to
increase their visibility and prominence. Common cultural perspec-
tives or independent treaty staffs may facilitate such an open ap-
proach. These open structures require no additional cession of sov-
ereignty and no additional expenditure of resources. By shifting the
focus of attention from substantive policies to structural issues, states
can encourage environmentalism in international agencies.
Access by NGOs to international institutions can significantly con-
tribute to strengthening environmental commitment below the state
level. The present structure of the World Bank and the other multi-
lateral development banks may inhibit the generation and flow of
information about environmental policies. As one commentator has
written, "[a] less centralized and hierarchical structure that would
allow greater public access to information would improve the banks'
ability to respond to ecological concerns."1140 Restructuring the banks
to allow NGOs and other groups greater access would also create an
additional accountability network that would encourage the develop-
ment of environmental policy. 141 The banks could be restructured to
accommodate formal environmental impact hearings at which NGOs
could make recommendations, or even actively participate in fact-
finding. NGO participation is not a completely novel idea. In the
CITES regime, for example, NGOs are allowed to attend and partic-
ipate at CITES meetings, but cannot vote.142 Restructuring might
also create within the multilateral development banks a community
of professionals committed to progressive environmental policies. 143
139 States often will not resist repeated efforts to increase access because they will discount
these costs in favor of more immediate benefits. Cf. Supra pp. I574-75 (discussing a similar
effect in the context of agency access to local populations). Moreover, they may hope that
NGOs that are more resistant to - or even oppose - environmental policies will participate
in policy formulation. However, because these NGOs often have their own economic interests,
their credibility with agencies, states, and other NGOs may be limited.
140 Rich, supra note 4, at 736.
141 See generally P. LOWE & J. GOYDER, ENVIRONMENTAL GROUPS IN POLITICS 7-85 (1983)
(discussing the environmental movement, organization of environmental groups, and their role
in national politics).
142 See CITES, supra note 33, art. XI(7), 27 U.S.T. at II05, T.I.A.S. No. 8249 at I9, 993
U.N.T.S. at 252. But cf. Bowman, supra note 7, at 495 ("[I]t is perhaps ominous that a number
of organizations with CITES observer status recently have found it necessary to form a contact
group in order to forestall what they perceive as attempts to limit their participation at future
CITES conferences.").
143 A lack of such a community within the United States "section" of the International

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I578 HARVARD LAWREVIEW [Vol. 104:I484
A comparison of the International Joint Commission (IJC) estab-

lished by the United States and Canada in 1909144 with the IBWC
illustrates that international environmental agencies are more success-
ful when they have a wider scope of activity. Although the Boundary
Waters Treaty creating the IJC did not define the terms "pollution"
or "injury," it did give the IJC the authority to interpret these terms
upon adjudication of a dispute arising under the treaty.145 Initially,
the IJC did not exercise its broad mandate, but it has since expanded
its role;146 all projects involving new water uses are subject to its
investigation and approval and it makes proposals and creates auxil-
iary organs to facilitate its work. The IJC also supervises new projects
and formulates standards of conduct.147 IJC boards are staffed by
engineers, economists, and lawyers from both the United States and
Canada who make recommendations concerning the development of
the Great Lakes area. Although the precise boundaries of its juris-
diction are unclear and almost certainly understated, the IJC never-
theless appears to NGOs and to the treaty parties to be competent to
handle a wide range of environmental problems.
The IBWC, in contrast, was designed as a water use and bound-
ary-setting body, with the power to initiate and execute research,
planning, construction, and administration of water works. The
IBWC has had one major success in the environmental area. When
Mexico began to protest an increase in the Colorado River's salinity
in the ig6os, the United States and Mexico mutually designated the
IBWC as the forum for resolving the dispute. In I973, following
Boundary and Waters Commission (IBWC), which almost always defers to the judgment of the
Army Corps of Engineers, precludes extensive involvement and input by environmental orga-
nizations and NGOs. The IBWC was created by the Treaty Relating to the Utilization of the
Waters of the Colorado and Tijuana Rivers and of the Rio Grande (Rio Bravo), Nov. 14, 1944,
Mexico-United States, 3 U.N.T.S. 314 [hereinafter IBWC Treaty]. The IBWC is the descendant
of the International Boundary Commission (IBC) established in I889 to resolve boundary
problems created by the Rio Grande and Colorado Rivers. See Convention to Facilitate the
Carrying Out of the Principles Contained in the Treaty of Nov. I2, I884, Mar. i, I889, United
States-Mexico, 26 Stat. I5I2, T.I.A.S. No. 232.
144 Boundary Waters Treaty, supra note I34. For a general discussion of the resolution of
American and Canadian environmental disputes, see Comment, Who'll Stop the Rain: Resolution
Mechanisms for U.S. -Canadian Transboundary Pollution Disputes, I2 DEN. J. INT'L L. & POL'Y
5I (i982); see also Cooper, The Management of International Environmental Disputes in the
Context of Canada-United States Relations: A Survey and Evaluation of Techniques and Mech-
anisms, I986 CANADIAN Y.B. INT'L L. 247 (discussing various environmental dispute resolution
mechanisms).
145 See Boundary Waters Treaty, supra note 134, art. Io.
146 See generally L. BLOOMFIELD & G. FITZGERALD, BOUNDARY WATER PROBLEMS OF
CANADA AND THE UNITED STATES (I958) (discussing IJC and summarizing dockets through
I958).
147 See Caponera, Patterns of Cooperation in International Water Law: Principles a
stitutions, in TRANSBOUNDARY RESOURCES LAW i, i8 (I987).

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IBWC negotiations, the United States conceded that Mexico was en-
titled to water free from excess salinity.'48 Although river salinity is
clearly an environmental issue, and although Congress authorized the
IBWC to undertake pollution studies,149 the United States section of
the IBWC maintains that the authorizing treaty confers jurisdiction
only upon problems involving fluvial boundaries and not environmen-
tal concerns.150 Conceived as a water works body, at least by the
United States, the IBWC cannot enjoy the same position as does the
IJC in the domestic community of environmentalists. The IBWC has
been dismissed by critics and by environmentalists as merely an ad-
ministrative water works agency. A larger environmental role for the
IBWC would not necessarily entail formal treaty restructuring nor
implicate sovereignty concerns; the IBWC could informally increase
its contacts with NGOs and other organizations. Because the IBWC
is staffed solely by United States and Mexican officials, however, it is
unlikely the IBWC will pursue this policy unless both governments
desire it. The IBWC thus illustrates the need for independent treaty
staffs who can make their own decisions about which contacts to
pursue. International agencies with independent staffs will more likely
place environmentalism at the top of their agendas.
E. Conclusion
Sovereignty concerns and economic pressures currently hamper the

ratification and enforcement of international environmental treaties.
Although traditional techniques of encouraging treaty ratification may
solve some of these problems, they make treaty enforcement more
difficult. Monitoring by international agencies can partially address
these difficulties. Sovereignty and economic concerns, however, are
so strong that international environmental institutions should, to the
extent possible, bypass the state-to-state level of traditional interna-
tional law and focus on fostering communication among non-govern-
mental organizations, international agencies, and state officials. By
fostering new norms, values, and expectations, international agencies
and NGOs can advance the drafting and enforcement of new and
effective international environmental agreements. Over time, these
activities will yield more substantial results than hoped-for environ-
mental regimes with coercive sanctions and extensive formal provi-
sions.
148 See Agreement on Colorado River Salinity, Aug. 30, I973, United States-Mexico
U.S.T. I968, T.I.A.S. No. 7708.
149 22 U.S.C. ? 277 (I988).
150 See Note, supra note 54, at 520.

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V. INSTITUTIONAL ARRANGEMENTS
Although treaties provide useful periodic opportunities for nations

to reevaluate their activities and establish general principles and pro-
cedures,' environmental problems require ongoing solutions.2 Effec-
tive international environmental agreements must therefore establish
institutional arrangements for continuous cooperation.3
Many observers have questioned whether the current institutional
framework - whose broad outlines have not changed since the I972
United Nations Conference on the Human Environment in
Stockholm4 - is equal to the growing international environmental
challenges of global warming, ozone depletion, biodiversity loss, trade
in hazardous materials, and management of the oceanic and polar
commons.5 States have recognized these problems as matters of living
standards, security, and even survival,6 and there is broad agreement
that international action is the best, if not the only, means to address
them. 7
After twenty years of experience with the Stockholm framework,
the United Nations Conference on Environment and Development
scheduled for June I992 in Brazil will provide a rare opportunity to
1 See C. JENKS, THE COMMON LAW OF MANKIND I83-84 (I958).

2 See Sand, International Cooperation: The Environmental Experience, in PRESERVING THE
GLOBAL ENVIRONMENT 236, 24I (J. Mathews ed. i99i).
3 See Caldwell, Beyond Environmental Diplomacy: The Changing Institutional Structure of
International Cooperation, in INTERNATIONAL ENVIRONMENTAL DIPLOMACY I3, I3 (J. Carroll
ed. I988); Chayes, International Institutions for the Environment, in LAW, INSTITUTIONS, AND
THE GLOBAL ENVIRONMENT I, 2 (J. Hargrove ed. I972); Chayes & Chayes, Adjustment and
Compliance Processes in International Regulatory Regimes, in PRESERVING THE GLOBAL EN-
VIRONMENT, supra note 2, at 280, 308; Tolba, Building an Environmental Institutional Frame-
work for the Future, I7 ENVTL. CONSERVATION I05, I05 (I990); Richardson, How to Fight
Global Warming, N.Y. Times, Feb. 7, I990, at A25, col. I; cf. Franck, Legitimacy in the
International System, 82 AM. J. INT'L L. 705, 752 (I988) (observing that rules made within
institutional frameworks have greater force).
4 The Stockholm Conference was the first and only time that the global community came
together to plan such a system of cooperation. Nevertheless, in many ways the Stockholm
participants avoided dealing with the central questions of institutional structure. See Feraru,
Environmental Actors, in ENVIRONMENT AND THE GLOBAL ARENA 43, 56 (K. Dahlberg, M.
Soroos, A. Feraru, J. Harf & B. Trout eds. I985).
5 See, e.g., Chayes & Chayes, supra note 3, at 280; Schevardnadze, Ecology and Diplomacy,
20 ENVTL. POL'Y & L. 20, 23 (I990); Tolba, supra note 3, at I09. The early 1970s' focus on
"pollution," see Mathews, Introduction and Overview, in PRESERVING THE GLOBAL ENVIRON-
MENT, supra note 2, at I5, 25, seems quaint in comparison with today's more complicated
problems. See Wirth, Climate Chaos, 74 FOREIGN POL'v 3, 3 (I989).
6 See Hague Declaration on the Environment, Mar. ii, I989, 28 I.L.M. I308 [hereinafter
Hague Declaration].
7 See M. QING-NAN, LAND-BASED MARINE POLLUTION 209 (I987); ORG. FOR ECON. CO
OPERATION AND DEV., OECD AND THE ENVIRONMENT 5 (i986); Tolba, supra note 3, at 10
This is not to deny the complementary and essential role of improved domestic policies. S
Paarlberg, Domesticating Global Management, 54 FOREIGN AFF. 563, 570-7I (I976).

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evaluate and reform the institutional system for international environ-

mental cooperation.8 In comparison with the many effective environ-
mental regulatory agencies at the domestic level, the international
regulatory structure that developed out of the Stockholm Conference
appears to many as an "unfamiliar network of haphazardly coordi-
nated [agencies,] . . . a fantasm, with mirage-like powers, a creaking
and fragmented process for deciding policy, and a surfeit of bureau-
cratic fiefdoms that consistently muster inadequate resources to meet
even the most urgent challenges."9
This Part describes and analyzes this institutional polyarchy and
argues that coercive enforcement power is not essential to international
efforts to protect, manage, and improve the global environment.10
Rather than advocating the unlikely creation of a centralized enforce-
ment authority, this Part proposes arrangements for facilitating coor-
dination among international actors, broadening participation in policy
formulation and implementation, and encouraging compliance by na-
tions and individuals.
A. The Current "System"
In broad form, the current system of intergovernmental organiza-

tions (IGOs)11 with environmental competence12 is hardly a system at
all. The multitude of separate units with overlapping jurisdictions
includes two international bodies ostensibly responsible for coordina-
tion: a group of high-level officials who meet infrequently (the United
Nations Administrative Committee on Coordination) and a small or-
ganization lacking authority and resources (the United Nations En-
vironment Programme). In the absence of effective coordination, each
institutional unit makes policy in its own manner, without authority
to compel states to act and without consistent, fair, and efficient
methods of involving the non-state actors that ultimately determine
the success of the institution's efforts.
I. Relations Among IGOs. - The defining characteristic of the
institutional framework for international environmental cooperation is
8 Indeed, institutional reform is expected to dominate the Conference agenda. See Brown,
The Illusion of Progress, in STATE OF THE WORLD I990, at 3, I3 (I990); Schevardnadze, supra
note 5, at 23; Conference on Environment and Development '92 - Preparatory Process, 20
ENVTL. POL'Y & L. 72, 73 (I990).
9 UNITED NATIONS ASS'N OF THE U.S.A., INC., UNITING NATIONS FOR THE EARTH 33
(I990) [hereinafter UNA REPORT].
10 No attempt is made here to evaluate the substantive contributions of existing institutions.
For such an evaluation, see ENVIRONMENTAL PROTECTION: THE INTERNATIONAL DIMENSION
(D. Kay & H. Jacobson eds. I983).
11 As used here, the term IGO encompasses permanent institutions that are formed by
primarily composed of nation-states and that act almost exclusively by administrative mea
12 The term competence is used here to denote delegated authority or jurisdiction; it assum
nothing about the skill or effectiveness of various IGOs.

202.190.66.222 on Mon, 31 Jul 2023 08:18:24 +00:00
its decentralization. The number of IGOs with competence in the

environmental area is astounding.13 Almost every IGO deals with
environmental issues, whether exclusively,14 substantially,15 or as a
by-product of its other responsibilities.16 These organizations' envi-
ronmental activities overlap. 17 Furthermore, dozens of domestic gov-
ernmental agencies have jurisdiction over environmental issues on
which decisions are made at the international level.'8
The international community has long sought to coordinate these
myriad IGOs.19 Although the first attempt to create a universal co-
ordinating structure (the League of Nations) failed,20 the United Na-
tions (UN) has succeeded in bringing most of the significant global
IGOs into its sphere. Article 63 of the UN Charter mandates that
the UN Economic and Social Council (ECOSOC) initiate mutual re-
lations with any organization "established by intergovernmental agree-
ment and having wide international responsibilities" in economic and
social fields.21 ECOSOC has negotiated agreements with sixteen such
13 See Jacobson & Kay, A Framework for Analysis, in ENVIRONMENTAL PROTECTION: THE
INTERNATIONAL DIMENSION, supra note I0, at i, I3.
14 Prominent examples include the United Nations Environment Programme, see infr
I584-85, and the International Joint Commission, see J. CARROLL, ENVIRONMENTAL D
MACY 39-58 (I983).
15 Prominent examples include the United Nations Educational, Scientific, and Cu
Organization (UNESCO), see J. KIWANUKA, ENVIRONMENTAL PROTECTION 36-37 (I9
International Maritime Organization (IMO), formerly the Intergovernmental Maritim
tative Organization, see id. at 40-43, the Organisation for Economic Co-operation and
opment (OECD), see id. at 48, 53-56, and the United Nations Development Programme
(UNDP), see G. SCHIAVONE, INTERNATIONAL ORGANIZATIONS 249-50 (I983).
16 For example, the multilateral development banks are involved in attempts to reduce the
negative environmental effects of projects they fund. See Rich, The Multilateral Development
Banks, Environmental Policy, and the United States, 12 ECOLOGY L.Q. 68I, 688-712 (I985).
17 See Jacobson & Kay, supra note 13, at 9-I3.
18 From I970 to I980, the number of nations with environmental agencies increased from
ten to nearly one hundred. See Feraru, supra note 4, at 65. In the United States, a broad
range of agencies in addition to the Environmental Protection Agency have significant environ-
mental responsibilities, including the Departments of Agriculture, Defense, Energy, Housing
and Urban Development, the Interior, and Transportation. See COUNCIL ON ENVTL. QUALITY,
ENVIRONMENTAL QUALITY 2I9-27 (I988) (listing federal agencies' National Environmental
Policy Act liaisons). Other countries face similar challenges in coordinating the efforts of multiple
domestic agencies. See Zalob, Approaches to Enforcement of Environmental Law: An Interna-
tional Perspective, 3 HASTINGS INT'L & COMP. L. REV. 299, 30I-04 (I980).
19 See H. AMERI, POLITICS AND PROCESS IN THE SPECIALIZED AGENCIES OF THE UNITED
NATIONS 63-97 (I982).
20 See D. BOWETT, THE LAW OF INTERNATIONAL INSTITUTIONS 9-I0 (I982).
21 U.N. CHARTER art. 57. Article 57 seems to mandate that "[t]he various specia
agencies . . . shall be brought into relationship with the United Nations," id. (emphasis a
even though Article 63 seems only to authorize ECOSOC to secure agreements with these
See D. BOWETT, supra note 20, at 65.

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"specialized agencies,"22 including eight with significant environmental

competence. 23
These agreements have increased to some degree the flow of in-
formation between these IGOs and ECOSOC.24 In the absence of
special arrangements between sibling agencies,25 however, any coor-
dination effort must first be channelled up to ECOSOC and then back
down to each agency. As a result, the coordination that occurs in this
structure has been mostly perfunctory.26
Early in its existence, ECOSOC attempted to address these inad-
equacies by establishing the Administrative Committee on Coordina-
tion (ACC),27 which twice a year brings together the UN Secretary-
General and the executive heads of the specialized agencies to resolve
coordination issues.28 Nevertheless, several factors have limited the
ACC's effectiveness in the environmental area. First, the ACC meets
22 These agencies are listed in UNITED NATIONS, EVERYONE'S UNITED NATIONS I9-20 (ioth
ed. I986). The unit most recently to become a specialized agency is the UN Industrial Devel-
opment Organization (UNIDO). See UNITED NATIONS, BASIC FACTS ABOUT THE UNITED
NATIONS i6o (I987).
23 See L. CALDWELL, INTERNATIONAL ENVIRONMENTAL POLICY 9I-96 (I984). These or-
ganizations are the Food and Agriculture Organization (FAO), the International Bank for
Reconstruction and Development (World Bank), the International Labor Organization (ILO),
the International Maritime Organization (IMO), the International Monetary Fund (IMF), the
UN Educational, Scientific, and Cultural Organization (UNESCO), the World Health Organi-
zation (WHO), and the World Meteorological Organization (WMO). The environmental pro-
grams and policies of each (except the World Bank and IMF) are described in J. KIWANUKA,
supra note I5, at 30-5I. For more general information on each, see G. SCHIAVONE, supra note
15, at III-I4 (FAO), I33-39 (World Bank), I52-64 (ILO, IMO, IMF), 250-53 (UNESCO),
277-80 (WHO), 283-86 (WMO). An eighth organization, the International Atomic Energy
Agency (IAEA), has negotiated a similar agreement directly with the General Assembly and the
Security Council. See Agreement Concerning the Relationship between the United Nations and
the International Atomic Energy Agency, 28I U.N.T.S. 369 (I957); G. SCHIAVONE, supra note
I5, at 126-30.
24 The agreements commonly provide that: (i) ECOSOC and the agency may be represented
and may propose agenda items at each other's meetings; (2) ECOSOC and the General Assembly
may make recommendations to the agency; (3) ECOSOC and the agency must exchange infor-
mation freely; and (4) the agency must issue a regular report to ECOSOC, which ECOSOC
usually transmits with comments to the General Assembly. See D. BOWETT, supra note 20, at
66-67.
25 One such arrangement resolves conflicts between the IMO and the ILO over standards
for training ship crews in pollution prevention. See R. M'GONIGLE & M. ZACHER, POLLUTION,
POLITICS, AND INTERNATIONAL LAW 74-75, 76 (I979).
26 See H. AMERI, supra note I9, at 93; Skolnikoff, Comments on Professor Chayes' Paper,
in LAW, INSTITUTIONS, AND THE GLOBAL ENVIRONMENT, supra note 3, at 27, 29; Hargrove,
Editorial Analysis, in LAW, INSTITUTIONS, AND THE GLOBAL ENVIRONMENT, supra note 3, at
I69, I72-73.
27 E.S.C. Res. I3 (III), I U.N. ESCOR Supp. (3d Sess., No. i) at I7-I8, U.N. Doc. E/62/
Rev. I (I946).
28 Heads of some other UN organs, including the UN Environment Programme, also par-
ticipate. See H. AMERI, supra note I9, at 59; L. CALDWELL, supra note 23, at 89; UNA
REPORT, supra note 9, at 37.

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too infrequently to resolve conflicts as they arise in this rapidly chang-

ing field.29 Second, because environmental issues are of peripheral
concern to many of the specialized agencies, coordination of such
issues may never occur in a forum involving only high-level officials.30
Third, although effective environmental management requires priori-
tizing functions and filling gaps in the overall framework ("positive"
coordination), the ACC's efforts have focused on avoiding conflicts
and duplication of functions ("negative" coordination).31 Finally, be-
cause the ACC does not include regional IGOs32 or organizations with
non-state members,33 its efforts with this small group of UN agencies
can only partially address the overall coordination problem.
In response to the acknowledged inadequacy of ECOSOC's and
the ACC's efforts in the environmental area, in I972 the Stockholm
Conference proposed34 and the General Assembly created35 the United
Nations Environment Programme (UNEP), "a small co-ordinating
body to lead and direct environmental initiatives at the international
level and to co-ordinate and stimulate action, serving as a catalyst
rather than as an executing agency. "36 Because it was formed directly
29 See H. AMERI, supra note I9, at 88.

30 See D. WILLIAMS, THE SPECIALIZED AGENCIES AND THE UNITED NATIONS I09 (I987).
31 See Skolnikoff, supra note 26, at 29. This is the terminology of Socini. See R. SOCINI,
RAPPORTS ET CONFLITS ENTRE ORGANISATIONS EUROPPENNES 45-50 (I960). For a critical
overview of UN efforts at coordination, see D. WILLIAMS, supra note 30, at io8-i8.
32 Several of the most effective environmental IGOs work on a regional basis. These include
the European Community, see J. KIWANUKA, supra note I5, at 56-65, the UN Economic
Commission for Africa, see ECONOMIC COMM'N FOR AFRICA, REPORT OF THE SEMINAR FOR
LAWYERS ON DEVELOPMENT OF ENVIRONMENTAL PROTECTION LEGISLATION IN THE ECA
REGION 3-I7 (I980), the OECD, see ORG. FOR ECON. CO-OPERATION AND DEV., supra note 7,
at 8-I4, the Danube Commission, see L. CALDWELL, supra note 23, at II2, and the International
Joint Commission, see J. CARROLL, supra note I4, at 39-58.
33 Several of the most important data-gathering and monitoring organizations have non-state
members. These include the International Union for the Conservation of Nature and Natural
Resources (IUCN), see ENVIRONMENTAL PROTECTION: THE INTERNATIONAL DIMENSION, supra
note io, at 9-I0, and the International Council of Scientific Unions (ICSU), see W. FELD, R.
JORDAN & L. HURWITZ, INTERNATIONAL ORGANIZATIONS 245-49 (I983).
34 See Stockholm Declaration on the Human Environment: Report of the United Nations
Conference on the Human Environment, U.N. Doc. A/CONF.48/14 (1972), reprinted in II
I.L.M. I4I6, I466-69 [hereinafter Stockholm Declaration]. This resolution followed several
proposals for new institutional arrangements. See, e.g., NATIONAL ACADEMY OF SCIENCES,
INSTITUTIONAL ARRANGEMENTS FOR INTERNATIONAL ENVIRONMENTAL COOPERATION 24-3I
(I972) [hereinafter NAS REPORT]; Joyner & Joyner, Prescriptive Administrative Proposal: An
International Machinery for Control of the High Seas, 8 INT'L LAW. 57, 62-72 (I974). The
Stockholm Conference also proposed, and the General Assembly created, an Environmental
Coordinating Board "under the auspices and within the framework" of the ACC. Stockholm
Declaration, supra, reprinted in ii I.L.M. at I469. In I977, realizing that this group's activities
duplicated those of the ACC, the General Assembly merged their functions. See G.A. Res. 32/
I97, 32 U.N. GAOR Supp. (No. 45) at I2I, I26, U.N. Doc. A/32/45 (I977).
35 See G.A. Res. 2997, 27 U.N. GAOR Supp. (No. 3o) at 43, U.N. Doc. A/8730 (I972).
36 UNITED NATIONS, EVERYONE'S UNITED NATIONS i68 (gth ed. I979).

202.190.66.222 on Mon, 31 Jul 2023 08:18:24 +00:00
by the General Assembly, UNEP is not a specialized agency subject

to coordination by ECOSOC. UNEP does provide reports to the
General Assembly through ECOSOC,37 but its place on the organi-
zational chart has been left unclear in order to reduce its encroachment
on the authority of the specialized agencies.38 UNEP has also been
chronically underfunded. In I989, nations' contributions to its Envi-
ronmental Fund were below the I979 level in real terms.39 Its I989
budget of thirty-seven million dollars is less than one percent of that
of the U.S. Environmental Protection Agency (EPA).40 As a result,
UNEP "has very limited ability to influence policies of the . . .
specialized agencies"41 or those of other IGOs outside the UN system.
Despite these shortcomings, UNEP has been praised for achieving
remarkable successes, most notably the establishment of Earthwatch,
a scientific assessment program, and the Mediterranean Sea Pro-
gramme, which brings together sixteen states to plan and manage
their common sea.42 UNEP has also sponsored numerous conferences
and assisted in the negotiation of many significant environmental
agreements.43 Nevertheless, calls persist for strengthening UNEP's
role in policy coordination and implementation.44
Outside the ECOSOC structure, the UN Charter provides two
other means of coordination, neither of which has proved effective in
practice. First, article I03 calls for obligations under the UN Charter
to supersede those under the charters and decisions of all other
IGOs.45 Because these obligations are limited to binding decisions of
37 See Gray, The United Nations Environment Programme: An Assessment, 20 ENVTL. L.

29I, 296 (I990).
38 See Johnson, The United Nations' Institutional Response to Stockholm: A Case Study in
the International Politics of Institutional Change, in WORLD ECO-CRISIS 87, I04-I0 (D. Kay
& E. Skolnikoff eds. I972).
39 See UNEP: I5th Session of the Governing Council, i9 ENVTL. POL'Y & L. 86, 87 (I989);
see also Note, The United Nations Environment Programme After a Decade: The Nairobi Session
of a Special Character, May I98I, I2 DENVER J. INT'L L. & POL'Y 269, 284 (I983) (discussing
the decline in funding from I979 to I983).
40 See UNA REPORT, supra note 9, at 34.
41 Caldwell, International Environmental Politics: America's Response to Global Imperatives,
in ENVIRONMENTAL POLICY IN THE iggos, at 30I, 316 (N. Vig & M. Kraft eds. I990).
42 See Gray, supra note 37, at 297-30I.
43 See id. at 30I-06; Petsonk, The Role of the United Nations Environment Programme
(UNEP) in the Development of International Environmental Law, 5 AM. U.J. INT'L L. 35I,
354-62 (1990).
44 See Gray, supra note 37, at 3I2-I3; Tolba, supra note 3, at Io9; Note, supra note
282-83.
45 See U.N. CHARTER art. I03; H. SCHERMERS, INTERNATIONAL INSTITUTIONAL LAW
? I5ii, at 849 (I980); Lauwaars, The Interrelationship Between United Nations Law and
Law of Other International Organizations, 82 MICH. L. REv. I604, I605 (I984). Conflicting
obligations are not automatically void. Instead, the parties to such an agreement must take
steps to resolve the conflict in favor of the UN Charter. See id. Therefore, like article 63,
article 103 primarily effects negative, rather than positive, coordination of policies.

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the UN Security Council,46 however, article I03 can operate only as

an instrument of coordination with respect to questions that implicate
"the maintenance of international peace and security."47 In addition,
article 96 permits agencies to request advisory opinions of the Inter-
national Court of Justice (ICJ) as a means of settling disputes over
the scope of their authority.48 Most agreements between specialized
agencies and ECOSOC, however, forbid this practice.49
Finally, coordination among IGOs could be performed by the
member-states themselves, many of whom belong to the majority of
IGOs.50 Although some states do coordinate their work in different
IGOs, at least on high priority issues,51 most have proved unable to
coordinate policies even within their domestic systems.52 It is un-
realistic to expect them to shoulder this burden on the international
level.
2. Relations Between IGOs and Nation-States. - Whereas do-
mestic efforts at environmental protection and improvement rely ex-
tensively on regulation, international agencies primarily provide tech-
nical assistance and information and coordinate research.
Nevertheless, IGOs play an indispensable role in the creation and
enforcement of international law.53 Almost every major environmen-
tal treaty was initiated by an IGO. For example, UNEP's involve-
ment was essential in negotiations leading to the series of agreements
on reduction of ozone-depleting chemicals.54 Currently, UNEP and
the World Meteorological Organization are managing negotiations on
the most significant environmental agreement yet conceived - a
46 See Lauwaars, supra note 45, at I607.

47U.N. CHARTER art. 24, para. i. Nevertheless, given the importance of environmental
health for international security, see Myers, Environment and Security, 74 FOREIGN POL'Y 23,
24 (1989), it is conceivable that the Security Council may need to become involved in dispute
with environmental causes. Cf. Postiglione, A More Efficient International Law on the Envi
ronment and Setting Up an International Court for the Environment Within the United Nation
20 ENVTL. L. 321, 323 (I990) (discussing environmental crises as a source of conflict).
48 See U.N. CHARTER art. 96.
49 See D. BOWETT, supra note 20, at 277-79.

50 See G. SCHIAVONE, supra note I5, at 301-08.
51 For instance, the United States coordinated its activities in the OECD, FAO, and UNEP
as these organizations endeavored to establish a regime for controlling exports of hazardous
chemicals. For background information on this process, see Goldberg, Efforts to Prevent Misuse
of Pesticides Exported to Developing Countries: Progressing Beyond Regulation and Notification,
I2 ECOLOGY L.Q. 1025, 1039-43 (1985).
52 See D. WILLIAMS, supra note 30, at 49.
53 See A. BENNETT, INTERNATIONAL ORGANIZATIONS I4-I5 (3d ed. I984); W. FELD, R.
JORDAN & L. HURWITZ, supra note 33, at vii; F. MORGENSTERN, LEGAL PROBLEMS OF INTER-
NATIONAL ORGANIZATIONS I (I986).
54 See Benedick, Protecting the Ozone Layer, in PRESERVING THE GLOBAL ENVIRONMENT,
supra note 2, at II2, II8-20.

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global climate change treaty.55 Furthermore, many environmental

IGOs serve as secretariats for treaties whose technical standards may
be revised by the IGO, a smaller group of state representatives, or a
specialized group of experts. The adoption of such standards has
proved extremely useful in working out the details of regimes that
address environmental subjects.56
Nevertheless, the power of IGOs to adopt standards has been
limited to technical areas.57 Outside these circumscribed areas, no
environmental IGO has been endowed with supranational authority
to promulgate rules binding either on states or on individuals. In
fact, the fundamental rule of international law that states can be
bound by new legal obligations only with their consent58 has denied
significant supranational authority to all but two IGOs. The UN
Security Council can make decisions that are binding on member
nations in the furtherance of peace,59 and the European Community
can make broad policies related to the environment, but these are
binding only within Western Europe, whose states share similar po-
litical and economic systems.60 Other IGOs, in order to take actions
that are binding on states, must adhere to principles consistent with
the doctrine of consent.6' Insofar as these principles are derived from
the same notions of state sovereignty on which treaty making is based,
they are susceptible to the same criticisms:62 the process takes too
55 See High-Level Decisions on the Environment, 20 ENVTL. POL'Y & L. 2, 2 (I99O); Global
Warming: Progress on Strategies, I9 ENVTL. POL'Y & L. I48, I48-49 (1989).
56 See, e.g., Jacobini, The New International Sanitary Regulations, 46 AM. J. INT'L L. 727,
727-28 (1952) (health-related water quality); Meyer, Travaux Preparatoires for the Unesco World
Heritage Convention, 2 EARTH L.J. 45, 45-8i (1976) (conservation of protected areas); Scarff,
The International Management of Whales, Dolphins, and Porpoises: An Interdisciplinary As-
sessment, 6 ECOLOGY L.Q. 326, 354-57 (I977) (protection of marine life).
57 See Zamora, Voting in International Economic Organizations, 74 AM. J. INT'L L. 566,
575 (I980).
58 See D. BOWETT, supra note 20, at I46.
59 See U.N. CHARTER arts. 4I-43, 48-49.
60 See D. BOWETT, supra note 20, at I99-214; Lew, The EEC Legislative Process: An
Evolving Balance, 27 COLUM. J. TRANSNAT'L L. 679, 679-8I (I989).
61 There are six such "confederal" principles: (i) rules must be approved by unanimous or
near-unanimous consensus; (2) members may always sever their ties to an organization and
revoke their consent to its rules; (3) while remaining a member, a state may unilaterally interpre
rules to which it has consented; (4) the administrative structure of the organization may only
rarely make rules; (5) delegates represent their governments and not themselves; and (6) the
international organization has "no direct relationship with private citizens of the member-states."
C. ARCHER, INTERNATIONAL ORGANIZATIONS I63-64 (I983).
62 See J. BRIERLY, THE LAW OF NATIONS 97-98 (I963); C. EAGLETON, INTERNATIONAL
GOVERNMENT I83-20I (3d ed. I957); C. JENKS, supra note i, at I83-84.

202.190.66.222 on Mon, 31 Jul 2023 08:18:24 +00:00
1588 HARVARD LAWREVIEW [Vol. I04:1484
long to be effective,63 and agreement may be jeopardized by the

actions of only one party.64
3. Relations Between IGOs and the Public. - At traditional in-
ternational law, only states are authorized to participate and vote on
issues before an IGO: the public's views are represented at the inter-
national level by their national governments. This indirect form of
representation is largely ineffective in the environmental area, where
the public's views are rarely focused enough to force a directly trace-
able change in government policy65 and where few states welcome the
participation of non-state parties in negotiating an agreement.66
Because their activities implicate the interests of thousands of local,
national, and international nongovernmental organizations (NGOs),67
environmental IGOs consider the public's views primarily by granting
nonvoting observer or consultative status to NGOs.68 For example,
ECOSOC divides NGOs into three categories.69 Those expected to
contribute most to the work of ECOSOC and its subsidiary bodies70
are entitled to attend meetings, submit short written statements, be
granted hearings, and propose agenda items. Those whose contribu-
tions are expected to be confined to only a few of ECOSOC's fields
63 Rapid change in the environment and human behavior affecting the environment almost
always outpaces the long process required to reach agreement among multiple parties. See
supra pp. I525-26, I544. For example, the standards agreed to in the original Montreal Proto
were already obsolete by the time it entered into force. See Benedick, supra note 54, at I30-
33.
64 See Sand, supra note 2, at 240. There are substantial incentives, such as competitive
trade advantages, for potential parties not to cooperate. See Hahn & Richards, The Interna-
tionalization of Environmental Regulation, 30 HARV. INT'L L.J. 42I, 429 (I989).
65 A rare example is the I988 "greening" of British Prime Minister Thatcher, which was
widely attributed to domestic public opinion. See Vogel, Environmental Policy in Europe and
Japan, in ENVIRONMENTAL POLICY IN THE I 99S, supra note 4I, at 257, 266-67.
66 Although then-President Mobutu of Zaire in I975 hosted a meeting of the IUCN, at whi
the World Charter for Nature originated, see W. BURHENNE & W. IRWIN, THE WORLD
CHARTER FOR NATURE I4-I6 (I983), such an initiative has not been repeated.
67 A i982 report estimated that there were 2230 environmental NGOs in developing countries
and I3,000 in developed countries. See Caldwell, supra note 3, at I9. As used here, NGOs
are groups of individuals, of businesses, or of other groups. The term does not include single
individuals, single businesses, or any organization affiliated with a national government.
68 See, e.g., D. BOWETT, supra note 20, at 68-69 (listing the NGOs granted observer or
consultative status by ECOSOC); R. M'GONIGLE & M. ZACHER, supra note 25, at 64-67 (listing
NGOs recognized by the IMO); Sands, The Environment, Community, and International Law,
3o HARV. INT'L L.J. 393, 415 (I989) (listing NGOs recognized by the IAEA). No environmental
IGO grants individuals formal participatory rights.
69 See E.S.C. Res. I296, 44 U.N. ESCOR Supp. (No. i) at 2I, 22, U.N. Doc. E/4548
(I968); D. WILLIAMS, supra note 30, app. C at 26I-62.
70 As of i986, there were 34 NGOs in this category, including the International Chamber of
Commerce and the International Federation of Agricultural Producers. See i Y.B. INT'L ORGS.
EE3377 (24th ed. i987) (Union of International Associations).

202.190.66.222 on Mon, 31 Jul 2023 08:18:24 +00:00
of activity71 are entitled to all of these privileges except for propo

agenda items. Finally, those expected to make merely "occasional and
useful contributions"72 may only attend meetings and, at the request
of the Secretary General, submit written statements. Some environ-
mental IGOs follow the three-tiered ECOSOC model, but others do
not differentiate among those NGOs granted minimal privileges.73
This practice of granting consultative status to certain NGOs has
provided questionable benefits to IGOs74 and NGOs. Each IGO has
its own idiosyncratic procedures, which are often little understood by
lawyers and diplomats without years of experience working with the
IGO.75 Thus, participatory rights are meaningful primarily for well-
organized, well-financed, and well-informed NGOs.76 Because such
NGOs tend to represent the citizenry of developed countries,77 allow-
ing public participation only by NGOs may heighten the influence of
developed nations. Furthermore, because participatory rights are
often granted on an ad hoc basis, the participation scheme may merely
serve the ends of the Secretariat or member governments.78 The
Organisation for Economic Co-operation and Development (OECD),
for example, is open to charges of undue influence by business interests
because it has accredited only two groups of NGOs - one represent-
ing industry and the other trade unions.79
Some non-state actors also participate in policy making through
informal contact with officials and staff of IGOs. Because almost
every major international environmental negotiating session is accom-
71 As of i986, there were 268 NGOs in this category, including the Environment Liaison
Centre, the International Council of Environmental Law, the ICSU, and the IUCN. See id.
72 E.S.C. Res. I296, supra note 69. As of i986, there were 453 NGOs in this category,
including the European Council of Chemical Manufacturers' Federations, the European Liq-
uefied Petroleum Gas Association, Friends of the Earth International, and the National Parks
and Conservation Association. See i Y.B. INT'L ORGS. EE3377 (24th ed. I987) (Union of
International Associations).
73 See D. WILLIAMS, supra note 30, app. C at 262.
74 See D. BOWETT, supra note 20, at 7o; D. WILLIAMS, supra note 30, app. C at 266-67.
75 See T. BUERGENTHAL, LAW-MAKING IN THE INTERNATIONAL CIVIL AVIATION ORGA-
NIZATION I-3 (I968).
76 See R. M'GONIGLE & M. ZACHER, supra note 25, at 67; D. WILLIAMS, supra no
app. C at 266. Because consortiums of NGOs can share resources and combine clout, the
often more effective than individual NGOs. See, e.g., L. CALDWELL, supra note 23
(discussing the Environmental Liaison Centre, a consortium of 252 NGOs from 62 count
77 Only a very small proportion of internationally active NGOs are headquartered i
Third World. See D. WILLIAMS, supra note 30, app. C at 264.
78 This has prompted calls for the parent organs of IGOs to issue "general guidelines" for
granting such rights. See Suy, The Status of Observers in International Organizations, i6o
RECUEIL DES COURS D'ACADtMIE DE DROIT INTERNATIONAL 75, I59 (I978).
79 See Wirth, Panel on International Law: The Year in Review, 84 PROC. AM. SOC'Y INT'L
L.I45, I50 (I990). Environmental NGOs are not included in either of these groups.

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panied by a "shadow conference" of nongovernmental parties,80 NGOs

that can afford their representatives' travel costs can influence the
domestic and international officials involved in the decisionmaking
sessions. Although costly, maintaining frequent informal contacts with
IGO bureaucrats and national representatives can be effective for
some NGOs.81 Again, however, these informal processes increase the
disproportionate influence of NGOs from developed states, which in
some cases exceeds that of poorer member-states unable to support a
presence in a large number of IGOs.82
IGO decisionmaking is also influenced by media reports of public
opinion polls, scientific studies, and criticisms made by NGOs,83 but
this influence is both limited and biased. Because IGOs rarely release
proposals during their consideration, outsiders cannot respond through
the media. Moreover, because the world's most influential media
outlets are based in developed states, reports tend to amplify issues
of interest to their inhabitants.84
B. The Grail of Centralized Supranational Authority
The lack of centralized supranational regulatory authority is often

cited as the crucial barrier to effective environmental protection and
management.85 In preparation for the Stockholm Conference, then
UN Secretary General U Thant proposed a new "global authority,"86
"a legislative body capable of establishing binding standards . . . and
an enforcement authority with power to make conclusive determina-
tions as to compliance."87 Such proposals appeal to environmentalists
80 See P. LOWE & J. GOYDER, ENVIRONMENTAL GROUPS IN POLITICS I64 (I983); D. WIL-
LIAMS, supra note 30, app. C at 266.
81 See D. WILLIAMS, supra note 3O, app. C at 266; D. Wirth, Legitimacy, Accountability,
and Partnership: A Model for Advocacy on Third World Environmental Issues I-5 (rev. ed.
Jan. I6, 1991) (forthcoming Ioo YALE L.J. (i99i)).
82 Cf. D. Wirth, Remarks at the National Association of Environmental Law Societies
Conference, Washington, D.C. 8-9 (Feb. I, I99I) (transcript on file at Harvard Law School
library) (noting that citizens of developing states may have more effect on IGOs through NGOs
located in the developed world than through their own governments).
83 See Reisman, Reporting the Facts as They Are Not Known: Media Responsibility in
Concealed Human Rights Violations, 78 AM. J. INT'L L. 650, 650-5I (I984).
84 Nearly 90% of the international news circulated worldwide is supplied by four agencies:
the Associated Press (based in the United States), the United Press International (based in the
United States), Reuters (based in the United Kingdom), and Agence-France Presse (based in
France). See W. FELD, R. JORDAN & L. HURWITZ, supra note 33, at I97.
85 See, e.g., Gray, supra note 37, at 317-I8; Greenberg, IMCO: An Environmentalist's
Perspective, 8 CASE W. RES. J. INT'L L. I31, I44 (I976); Tolba, supra note 3, at IO9.
86 8 PUBLIC PAPERS OF THE SECRETARIEs-GENERAL OF THE UNITED NATIONS 350 (A.
Cordier & M. Harrelson eds. I977).
87 Chayes, supra note 3, at 2 (paraphrasing Thant). More detailed proposals were also made.
See, e.g., Hull & Koers, Introduction to a Convention on the International Environmental
Protection Agency, I97I LAW OF THE SEA INST. I-II (Occasional Paper No. I2).

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accustomed to life in the domestic regulatory state.88 It is certainly

hard to picture the EPA without authority to cancel registrations,
deny permits, or seek injunctions. It is likewise hard to picture the
EPA and other U.S. environmental agencies operating coherently
apart from a single executive or legislative authority. To domestic
policymakers, public interest organizations, and affected businesses,
environmental management means centralized regulation enforced by
fines, injunctions, and even incarceration.
There are few instances in which states have ceded some portion
of their sovereign authority to an international body over which they
may have little control.89 Nevertheless, proponents have argued that
the urgency of environmental problems raises the costs of non-coop-
eration to such a level that a global supranational authority with
environmental competence should be considered a realistic possibility,
if not a necessity.90 Certainly at the time of the I972 Stockholm
Conference there was no scientific consensus on the imminence of
environmental crises.91 Nor was it conceivable then that the UN
Security Council would authorize coordinated military action as it has
against Iraq or that European states would integrate their economies
under a federation. In light of these developments, the creation of a
supranational environmental IGO is no longer unthinkable.92
It remains unlikely, however, that states will create a supranational
environmental authority.93 Although the Security Council operates
globally and supranationally, its competence is limited to peace-keep-
ing. That states are willing to cede supranational authority in this
area, which many consider the foremost goal of international coop-
eration, implies little about their willingness to cede authority in the
environmental area. Furthermore, the Security Council has very little
experience as a supranational body; until recently the political conflict
between the United States and the Soviet Union prevented it from
taking significant action.94 The European Community, of course, has
much broader competence and may provide a useful example of su-
88 See UNA REPORT, supra note 9, at 33.

90 See, e.g., B. WARD & R. DUBOS, ONLY ONE EARTH 214-20 (1972); Schevardnadze, supra
note 5, at 2 1-23.
91 See Chayes, supra note 3, at 2-3. Such a consensus does exist today, at least within the
limits of scientific certainty, on such issues as global climate change, see Rathjens, Energy and
Climate Change, in PRESERVING THE GLOBAL ENVIRONMENT, supra note 2, at 154, 160-63,
and depletion of the ozone layer, see Benedick, supra note 54, at 131-33.
92 Indeed, the Soviet Union has proposed the establishment of a UN body similar to the
existing Security Council to enforce environmental obligations that affect states' security. See
Schevardnadze, supra note 5, at 23.
93 See Franck, supra note 3, at 7 1.
94 See Lewis, The United Nations Comes of Age, Causing Some Anxiety, N.Y. Times, Aug.
5, 1990, ? 4, at 3, col. I.

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pranationality for other regions, but its successes may not be easily
transferred to the more pluralistic global community.95
Proposals for centralizing international environmental efforts under
a single authority96 encounter many of the roadblocks preventing the
creation of a supranational authority.97 Centralization would not only
threaten states' sovereign ability to establish IGOs outside a central
structure, but also reduce the independence of the thousands of inter-
national bureaucrats whose support would be essential for the success
of any centralization effort.98
Aside from the limited examples of the Security Council and the
European Community, the international legal system, particularly
with respect to IGOs, is fundamentally different from domestic sys-
tems. For the foreseeable future, the basic rule of the international
system remains that states are bound to observe only those obligations
to which they have acceded, either by agreement or by customary
practice with the intention to be bound.99 In IGO decisionmaking (as
in treaty making), this rule often means that binding obligations may
not be created except by unanimous agreement of the parties.1?? It
is within these constraints that the international environmental struc-
ture must operate.
The difficulty of achieving unanimous agreement largely motivates
the quest for supranational authority. Yet even under such an au-
thority, a state will violate a rule if it is willing to suffer domestic
and international consequences such as diminished standing in the
international community or coercive economic or other sanctions.10'
95 Cf. Schachter, International Law in Theory and Practice, 178 RECUEIL DES COURS
D'ACADtMIE DE DROIT INTERNATIONAL 10, 121-23 (I982) (questioning whether majority voting
among politically and culturally diverse states is consistent with democratic aims).
96 For example, legal experts from 27 states have recently proposed an International Court
for the Environment that would be "accessible . . . to United Nations organs," Postiglione,
supra note 47, at 327, implying that it could decide issues regarding the legal authority of
agencies acting on environmental matters.
97 A practical obstacle to the creation of an all-encompassing environmental IGO is the
difficulty of defining its jurisdiction. Cf. H. SCHERMERS, supra note 45, ? I5I8 at 852 ("In
practice, it is often difficult to limit competences clearly . . . ."). Although an agreement could
enumerate existing activities, this would limit the IGO's ability to respond to changing environ-
mental needs. Furthermore, because environmental concerns have no inherent bounds, see J.
SCHNEIDER, WORLD PUBLIC ORDER OF THE ENVIRONMENT 4 (I979), an agency responsible for
"environmental" issues could draw charges that it is a de facto world government.
98 A major impediment to the cooperation of existing IGOs is their stake in the institutional
status quo. See D. WILLIAMS, supra note 30, at io9; cf. H. SCHERMERS, supra note 45, ? I496
at 838-39 ("The separate development of each agency makes it very difficult to change the [UN
Charter] by merging the organizations of the UN Family into one organization.").
99 See D. BOWETT, supra note 20, at I45-46.
100 See supra note 6i.
101 See L. HENKIN, How NATIONS BEHAVE 50 (I979). This axiom may apply equally
to individuals in the domestic legal system. See J. BENTHAM, Principles of Penal Law, in THE
WORKS OF JEREMY BENTHAM 365, 396, 399-402 (J. Bowring ed. I962) (ist ed. I843).

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Although a supranational authority may compel greater compliance,

even it would encounter the crucial question faced by IGOs in the
decentralized system: how to increase the adverse consequences suf-
fered by states that do not conform to their norms. The capacity of
an IGO to effect serious consequences for failure to conform increases
in proportion to the legitimacy with which the institution and its rules
are viewed by the international community. 102 In turn, the legitimacy
of a rule is founded on the perception that it has come into being in
accordance with "right process."'103 Reforms designed to increase com-
pliance must therefore increase the perceived legitimacy of IGO de-
cisionmaking procedures. Reformers should abandon their search for
a single entity with coercive enforcement power and instead devote
their efforts to the discovery of mechanisms by which environmental
IGOs can induce compliance with their decisions.
C. Facilitating Coordination
In the absence of centralized authority, the efforts of many diplo-

mats, international lawyers, and commentators, almost since the
founding of the UN, have been devoted to improving coordination of
the various components of the UN system. 104 These efforts have met
with little success.105 Recent proposals for reform in the environmen-
tal area would increase the status of an environmental unit within the
UN system in order to increase the attention paid to environmental
issues and improve the UN's coordination efforts. 106 Some states have
suggested that UNEP be made a specialized agency equal in status to
many of the IGOs whose work it attempts to coordinate, while others
have suggested that the UN create a separate environmental council,
equal in status to ECOSOC and having its own specialized agen-
cies. 107
Although these proposals have their merits, they are manifestations
of the misguided quest for hierarchical authority and the correspond-
ing tendency to equate organizational status with clout. Some of the
most influential IGOs operate from the bottom of the UN organiza-
tional chart (for instance, the World Bank) or from positions entirely
outside it (for instance, the OECD). Furthermore, the focus on the
102 See Franck, supra note 3, at 708-og.

103 Franck, supra note 3, at 71I. Although lawyers focus on procedural aspects of legitimacy,
"right process" in this context includes consideration of scientific views. Thus, reforms must
also strengthen IGOs' scientific capacities. See UNA REPORT, supra note 9, at 35-36.
104 See H. AMERI, supra note I9, at 63-97.
105 See id. at 93.
106 See UNEP: I5th Session of the Governing Council, i9 ENVTL. POL'Y & L. 86, 93 (I989).
Some nations are receptive to the creation of a new institution. See G7: Economic Declaration,
I9 ENVTL. POL'Y & L. I83, I83-84 (I989).
107 See UNEP: Preparations for 1992, 20 ENVTL. POL'Y & L. 124, 126 (I990).

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UN ignores the reality that virtually every IGO, regardless of UN

affiliation, is implicated in efforts to improve environmental protection
and management.'08 By recognizing the political reality preventing
major structural changes and by focusing instead on the functional
needs of the existing system, reformers will be better able to discover
arrangements for achieving effective coordination of IGOs within the
current system.
i. Evaluating Decentralization. - The functional needs of the
current system result largely from its decentralized structure. The
problem most commonly associated with this system is duplication of
activities. Because environmental IGOs have so many overlapping
competences, two or more IGOs are often involved in a similar ef-
fort. 109 Although entire programs rarely overlap, duplication of
smaller activities within programs run by different IGOs can be dif-
ficult to identify.110 Moreover, once recognized, duplication can be
resolved only by agreements between IGOs, which incur substantial
transaction costs."' The system's decentralized nature may account
for much of this duplication, but it is not clear that a larger, central-
ized organization would be inherently better suited to coordination.
Compared with smaller, better managed units, a large centralized
organization might have less transaction costs of coordination but
more general bureaucratic inefficiency. Furthermore, duplication may
in some cases lead to better policies through healthy competition and
safety-net redundancy.112
A related criticism of the current system is that it is unable to
exploit economies of scale in personnel and administrative resources.
Nevertheless, because most IGOs associated with the UN frequently
consult each other on personnel policies,113 the practical differences
between a centralized institution and the existing polyarchy may be
overstated.
A third criticism of the current system is that it results in a less
effective legal regime because states attempt to select the process or
institution that best meets their needs.114 In resolving international
legal disputes, states and other parties commonly examine their
chances of prevailing in each of the available forums - the ICJ,
arbitral panels, and domestic courts - before submitting to any au-
108 See J. SCHNEIDER, supra note 97, at 4.

109 See H. AMERI, supra note I9, at 66-67.
110 See id. at 66.
111 A great of deal of effort has been expended to reduce duplication among some IGOs.
See id. at 63-68, 84.
112 See id. at 67.
113 See D. BOWETT, supra note 20, at 67; H. SCHERMERS, supra note 45, ? 152I at 85
114 Cf. R. SHINN, THE INTERNATIONAL POLITICS OF MARINE POLLUTION CONTROL 125
(1974) (arguing that the "maze of alphabet soup acronyms . . . is a symptom of the lack of
political will" to "choose an organization and use it").

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thority.115 Similarly, states employ the entire spectrum of options in

making and implementing law. For instance, many states participated
in the separate processes initiated by the OECD, the Food and Ag-
riculture Organization, and UNEP to establish a regime for regulating
trade in hazardous materials.116 Furthermore, by adjusting its con-
tributions, a wealthy state can ensure either the viability or the virtual
expiration of an IGO and its policies.117
Despite the dangers of forum shopping among IGOs, the avail-
ability of such options has also been heralded as one of the system's
greatest strengths because it both ensures consideration of more issues
and allows for greater policy innovation.118 Depending on the issue,
one organization may be better suited technically or politically to
negotiate its resolution. For instance, maritime business interests view
the International Maritime Organization (IMO) as attentive to their
concerns, 119 whereas developing states see UNEP as attentive to
theirs. 120 Some agencies are better at working on both sides of the
North-South divide,121 while others are better at bridging the gaps
between labor and management. 122 This diversity increases the
chances for resolution of a given issue. Furthermore, to the extent
that different IGOs arrive at similar conclusions, these overlapping
norms have greater credibility and force. 123
A related virtue of the decentralized system of environmental IGOs
is its ability to adapt to change. Environmental policy makers rec-
ognize that the world is facing rapid environmental change,124 both
in the natural environment125 and in man-made systems that affect
115 Cf. Juenger, Forum Shopping, Domestic and International, 63 TULANE L. REV. 553,
560-70 (I989) (discussing forum shopping among national court systems).
116 See Goldberg, supra note 5I, at I039-43. The availability of such alternative processes
may lead to agreement on the lowest-common-denominator policy because each national gov-
ernment can take credit for an agreement without bearing the costs of more effective action.
See Paarlberg, supra note 7, at 572-73.
117 Broad-based financing might prevent situations such as the United States' threat to
withhold funds from the UN should it enhance the status of the Palestinian Liberation Orga-
nization. See Lewis, Arabs at UN Ask 2 Concessions from Washington on P.L.O. Issue, N.Y.
Times, Dec. 5, I989, at A5, col. 3.
118 See Sand, supra note 2, at 236, 239.
119 See Greenberg, supra note 85, at I35.
120 See Gray, supra note 37, at 305.
121 UNEP views this as a major part of its mission. See Tolba, supra note 3, at IO9.
122 The ILO makes such efforts. See G. SCHIAVONE, supra note I5, at I52-53.
123 Cf. Cover, The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation,
22 WM. & MARY L. REv. 639, 674-75 (I98I) (noting the benefits of having norms reiterated by
different courts).
124 See Brown, Flavin & Postel, Foreword to STATE OF THE WORLD I989, at xv (L. Starke
ed. I989).
125 Scientists' ability to measure environmental change is constantly improving; thus
can now recognize and understand changes they previously would not have observed. See Sand,
supra note 2, at 236. Whether such observations represent a true increase in the rate of change

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the environment through technology,126

The smaller, more focused IGOs in the current system may be able
to react more quickly because fewer decisionmakers have to be con-
vinced of the wisdom of a policy change.
A final criticism of the system of smaller IGOs is that it appears
to be susceptible to undue influence by special interests. For instance,
the IMO has been criticized for bowing to pressure from the shipping
industry,129 and the International Whaling Commission has been as-
sailed for inaction due to opposition from whalers.130 The problem
of agency capture is well documented in domestic administrative law:
agencies that regulate single industries appear to be more susceptible
to capture than agencies with broader missions, who can "demur from
the regulated group's demands on the basis that [they] need[] to com-
promise in order to take into account the demands of others."'131
Likewise, IGOs with universal membership and broad-based financial
support might be less susceptible to disproportionate influence from
individual states.132 Whether an agency is captured, however, may
be determined more by the field it seeks to regulate than by its
institutional structure.133 Because most policies addressing environ-
mental degradation burden a recognizable, relatively small class in
order to benefit the public, agency capture is a significant risk in the
environmental context regardless of the institutional structure. 134
2. Alternative Arrangements. - One way to reduce duplication of
activities among IGOs within a decentralized system would be simply
to amend the charter of each environmental IGO to avoid overlapping
competences. Such a process would, however, encounter the same
in the natural environment or simply an increase in our ability to observe changes that ha
been occurring all along, they clearly drive changes in policy. See id. at 236-38.
126 For instance, scientists annually create approximately I200 new organic chemical prod
ucts, each with potential commercial value. See D. SAROKIN, W. MUIR, C. MILLER & S.
SPERBER, CUTTING CHEMICAL WASTES I (I985).
127 For example, the I992 merger of European nations into a common market has significant
implications for the environment. See Sand, supra note 2, at 249-50, 27I-73.
128 For instance, growing public concern over environmental degradation has sparked potent
grass-roots movements such as green consumerism. See Cleaning Up, ECONOMIST, Sept. 8,
I990, at I, 4-6 (special supplement).
129 See R. SHINN, supra note II4, at I23; Greenberg, supra note 85, at I34.
130 See Scarff, supra note 56, at 626 n.843.
131 M. REAGAN, REGULATION: THE POLITICS OF POLICY 59 (I987); see also P. QUIRK,
INDUSTRY INFLUENCE IN FEDERAL REGULATORY AGENCIES 4-2I (I98I) (discussing agency
capture); M. REAGAN, supra, at 52 (same); Stewart, The Reformation of American Administrative
Law, 88 HARV. L. REv. I667, I684-87 (I975) (same).
133 See M. REAGAN, supra note I3I, at 59-60.
134 Cf. A. BLINDER, HARD HEADS, SOFT HEARTS I90 (I987) ("Policies that impose concen-
trated and visible costs on the few, to garner diffuse and subtle benefits for the many, labor
under severe political handicaps." (emphasis omitted)).

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practical and political difficulties as those inherent in establishing a

central IGO.135 Alternatively, IGOs could regularly bring their staff
and members together with colleagues in the growing international
environmental community.136 Yet, although such periodic conven-
tions as the Stockholm and Brazil Conferences can strengthen this
community,137 they are insufficient to diminish the problems of ever
day coordination in the current system.
A more effective way to increase coordination would be to expand
reciprocal relations among environmental IGOs. Thus far, IGOs that
have established reciprocal relations138 have limited such arrange-
ments to sharing information, recognizing representatives without vot-
ing privileges, and considering recommendations made by other or-
ganizations. True coordination would be strengthened by providing
outside representatives with voting or veto privileges and by estab-
lishing a procedure for one IGO to recognize another's regulations.
None of the major environmental IGOs accords another a vote in
its proceedings. Because many states participate in several IGOs,
such a vote might be considered superfluous. Nevertheless, member-
states occasionally cast contradictory votes in different organizations
due to a conflict in internal policy or a lack of information. 139 Under
a system of reciprocal voting, policy coordination within a given state
would be achieved by having its representatives to various IGOs each
vote on the same issue - either indirectly to instruct the IGO to cast
its vote on the principal IGO's proposal, or directly to express its
opinion on the principal IGO's proposal.
IGOs could also agree to give force to the standards of other IGOs.
The World Bank, for example, could diminish financing for projects
in states that do not abide by the Convention on International Trade
in Endangered Species, which is administered by UNEP; such a policy
would ensure compliance with the Convention by states that depend
on World Bank financing. 140 Such agreements could construct a more
135 See supra notes 97-98 and accompanying text.

136 Such meetings serve important functions; one observer has attributed the success of
initiatives to control pollution in the Mediterranean Sea to the involvement of a community of
experts with common knowledge and values. See Haas, Do Regimes Matter? Epistemic Com-
munities and Mediterranean Pollution Control, 43 INT'L ORG. 376, 384 (I989).
137 See P. LOWE & J. GOYDER, supra note 8o, at I64.
138 See H. SCHERMERS, supra note 45, ? I499.
139 Cf. D. WILLIAMS, supra note 30, at 49 (noting difficulties in coordination among agencies
within a nation).
140 Various commentators have suggested that the World Bank act as a sanctioning agency
to ensure compliance with standards adopted by other organizations. See, e.g., Joyner & Joyner,
supra note 34, at 70. By capitalizing on inequalities in the worldwide distribution of wealth,
however, such a system may undercut environmentalists' efforts in the Third World. See
Address by Fabio Feldmann, member of Brazil's House of Representatives, John F. Kennedy
School of Government, Harvard University (Mar. I, I99I) (commenting on political repercussions
in Brazil of the World Bank's denial of financing for Brazil's energy plan because, in part,

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cohesive framework of international environmental regulation without

centralization or supranational authority.
Nevertheless, negotiation of such agreements would be compli-
cated, difficult, and time-consuming. Because many U.S. agencies,
like IGOs, regularly take actions or implement policies with significant
environmental impacts,141 this experience may provide helpful ana-
logues. Although these agencies are responsible to the President and
Congress, efficiency precludes coordination at such high levels.142
Recognizing the need for some check on - and coordination of -
these agencies in the interrelated environmental area, Congress en-
acted the National Environmental Policy Act (NEPA) of i969.143
NEPA requires that before taking any "major Federal action[]
significantly affecting the quality of the human environment,"144 ag
cies prepare and publish an environmental impact statement (EIS).
The main components of an EIS include a description of the proposed
action, an analysis of its expected environmental impacts (whether
positive or negative), and a discussion of alternatives to the proposed
action. Although NEPA does not prohibit actions with net environ-
mental costs, it does ensure that these costs are considered by agencies
and the public.145 By establishing systematic procedures, NEPA has
greatly improved the regularity of environmental decisionmaking.146
Furthermore, by publicizing proposed actions and requiring inter-
agency comments, NEPA has proven effective in coordinating policies
among agencies.147 Many other countries have enacted similar envi-
ronmental impact assessment procedures. 148
Brazil has not agreed to nuclear non-proliferation standards). It may also be counterproductive
to withhold technical assistance in the environmental area from a non-conforming state, because
its non-conformity may be due to a lack of technical resources.
141 See Jacobson & Kay, supra note I3, at 4.
142 See M. REAGAN, supra note 13I, at 53; S. TAYLOR, MAKING BUREAUCRACIES THINK
THE ENVIRONMENTAL IMPACT STRATEGY OF ADMINISTRATIVE REFORM II (1984).
143 Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. ?? 4321-4370
(i988)). NEPA notes the responsibility of the Federal government to "coordinate Federal plans,
functions, programs, and resources." Id. ? 4331. For a history of NEPA, see Calvert Cliffs'
Coordinating Comm., Inc. v. Atomic Energy Comm'n, 449 F.2d IIO9, II11-22 (D.C. Cir. 1971).
144 42 U.S.C. ? 4332(C) (1988).
145 See Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 228 (
curiam). But see Yost, NEPA's Promise - Partially Fulfilled, 20 ENVTL. L. 533, 534 (1990)
(arguing that, by not giving NEPA substantive content, courts have slighted legislative history).
146 See L. CALDWELL, SCIENCE AND THE NATIONAL ENVIRONMENTAL POLICY ACT 51-74
(1982); Culhane, NEPA's Effect on Agency Decision Making, 20 ENVTL. L. 68I, 690 (I990); see
also S. TAYLOR, supra note 142, at 198-231 (discussing NEPA's effect on U.S. Forest Service
decisionmaking).
147 See S. TAYLOR, supra note 142, at 269-7I; Blumm & Brown, Pluralism and the Envi-
ronment: The Role of Comment Agencies in NEPA Litigation, 14 HARv. ENvTL. L. REV. 277,
306-o8 ( 1990).
148 See, e.g., Gundling, Public Participation in Environmental Decision-M

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On the international level, the secretariats of IGOs could prepare

an EIS for every major action affecting the environment. In order to
enhance coordination among environmental IGOs, this statement
should be available for review and comment by other IGOs and the
public prior to the final decision.149 Although the threat of judicial
enforcement drives NEPA compliance in the United States, IGOs
would resist subjecting their decisions to review by international tri-
bunals.150 Nevertheless, for the same reasons that states often adhere
to non-binding decisions of IGOs,151 a NEPA-like procedure for IGO
decisions would have force of its own accord, regardless of any "en-
forcement" by an IGO or judicial body. 152
An international EIS system could be established in several
ways.153 A model code of EIS procedures could be approved by
delegates to the Brazil Conference, who would urge that IGOs adopt
it. In addition to this hortatory proposal, one IGO could centralize
efforts at procedural harmonization and, continuing after the Brazil
Conference, encourage other IGOs to adopt these procedures. Ob-
vious candidates for such a role are UNEP'54 and ECOSOC,155 who
might engage in a combined effort. This IGO could also serve as a
clearinghouse through which all EISs would flow from IGOs to other
interested IGOs, NGOs, and individuals. 156 The widespread adoption
of EIS procedures would provide this IGO with a constant flow of
information on IGO activities that affect the environment, and thereby
enable it to provide the positive coordination the system needs. In
this way, the bewildering array of IGOs with environmental compe-
tence can be better coordinated not by rearranging the organizational
chart but by improving the regularity of IGO procedures through
increased information and decreased ad hoc decisionmaking.
IN ENVIRONMENTAL POLICY AND LAW 131, 136 (M. Bothe ed. I980) (Australia, France, and
New Zealand); McSwiney, The European Community Perspective, in UNDERSTANDING U.S.
AND EUROPEAN ENVIRONMENTAL LAW 132, 132-38 (T. Smith & P. Kromarek eds. 1987)
(European Communities); Sand, supra note 2, at 262 (Colombia, Algeria, and Germany).
149 Cf. H. AMERI, supra note I9, at 66 (noting that coordination is fostered by knowledge).
151 See supra pp. 1592-93.
152 Cf. S. TAYLOR, supra note 142, at 283-94 (comparing the effectiveness of procedures
with and without judicial oversight).
153 Because most IGOs are authorized to establish procedures for the review of proposals
and publication of reports thereon, member-states would not need to confer new authority on
IGOs.
154 UNEP undoubtedly has the greatest experience in encouraging other IGOs to inject
environmental considerations into their programs. See Gray, supra note 37, at 302-03.
155 ECOSOC has more formal authority over the UN specialized agencies through reporting
provisions in their agreements. See supra notes 21-24 and accompanying text.
156 This clearinghouse function could include the publication of a document similar to the
U.S. Federal Register compiling IGO proposals under consideration.

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i6oo HARVARD LAW REVIEW [Vol. 104:1484
D. Broadening Participation
The perceived legitimacy of the decisionmaking process derives

from both its regularity and its fairness to interested parties. At the
core of this fairness is the opportunity for meaningful participation. 157
To the extent that IGO decisionmaking procedures provide affected
parties with an opportunity to participate meaningfully, the procedures
will be considered more legitimate and the standards they produce
will have greater credibility and thereby greater force.158
Unlike U.S. administrative rulemaking, in which all interested
persons are allowed to participate,159 IGOs determine both who can
participate and the level of their participation. Although rights and
obligations at international law have traditionally run to states and
not directly to individuals,160 commentators have documented the
recognition of limited international legal personality for individuals'61
- particularly in the context of human rights162 - as well as the
emergence of a "new human right to a healthful and decent environ-
ment."1163 Intergovernmental agreements proclaim the principle that
environmental rights and obligations run to individuals,164 and clearly
it is "human beings and not legal constructions, such as States, [that]
suffer from the degradation of the environment."1165 Despite these
developments, IGOs have not granted individuals rights to participate
directly in making and implementing international environmental law
157 See, e.g., Roller v. Holly, 176 U.S. 398, 409 (1900); J. MASHAW, DUE PROCESS IN THE
ADMINISTRATIVE STATE 177-80 (1985); Cramton, A Comment on Trial-Type Hearings in Nuclear
Power Plant Siting, 58 VA. L. REV. 585, 593 (1972); Michelman, Formal and Associational
Aims in Procedural Due Process, in NoMos XVIII: DUE PROCESS 126, 126-29 (J. Pennock &
J. Chapman eds. 1977).
158 See Franck, supra note 3, at 706 (arguing that "in a community organized around rules,
compliance is secured - to whatever degree it is - at least in part by perception of a rule as
legitimate by those to whom it is addressed" (emphasis in original)); cf. Sands, supra note 68,
at 399-401 (discussing NGO participation as a source of legitimacy).
159 See 5 U.S.C. ? 553(c) (1988).
160 See H. KELSEN, PRINCIPLES OF INTERNATIONAL LAW I94 (2d ed. 1966).
161 See, e.g., M. AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW 72-75
(6th ed. 1987); H. KELSEN, supra note i6o, at I94, 203-20, 22I-42; G. MARIS, INTERNATIONAL
LAW: AN INTRODUCTION 58 (1984).
162 See H. KELSEN, supra note i6o, at 226-30.
163 W. GORMLEY, HUMAN RIGHTS AND ENVIRONMENT: THE NEED FOR INTERNATIONAL
CO-OPERATION 2 (1976). The proposed International Court for the Environment would be
"accessible to . . . private citizens," Postiglione, supra note 47, at 327, for the vindication of
their environmental rights according both to the "'primary norm' .... [of] peaceful enjoyment,"
id. at 324, and to a proposed universal Convention for the Environment as a Humnan Right,
see id. at 322.
164 See Hague Declaration, supra note 6, at 1308; Stockholm Declaration, supra note 34,
Principles I & 4, reprinted in ii I.L.M. at 1417-I8.
165 Hull & Koers, supra note 87, at IX.

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I99I] DEVELOPMENTS - INTERNATIONAL ENVIRONMENTAL LAW i6oi
and policy. They have, however, granted rights of some significance

to NGOs.166
i. Why Involve Non-State Actors? - Because international envi-
ronmental law ultimately seeks to regulate non-state actors - whether
NGOs, businesses, or individuals - the involvement of these actors
in rule formulation would increase the legitimacy of the international
legal regime.167 The traditional state-centered system assumes that
states will represent the views of their citizens on the international
level.168 However, this assumption is barely warranted, even in the
context of democratic societies. 169 Even if it were valid, participation
through state representatives is further limited by the lack of infor-
mation available to popular constituencies during negotiations. 170
More direct public participation would simply acknowledge the
ultimate political power - in an increasingly democratized world-
of non-state actors.171 Public awareness and cooperation, as opposed
to coercive enforcement, are the foundation of many environmental
policies.172 Furthermore, they are often essential to the enactment of
domestic implementing legislation; because NGOs and individuals can
delay or even preclude the entry into force of an agreement negotiated
without their participation,173 it would be more efficient to involve
them at an earlier stage. 174
166 See Sands, supra note 68, at 415; supra pp. 1588-89.
167 See Sands, supra note 68, at 400 n.28; cf. R. DWORKIN, LAW'S EMPIRE 213 (1986)
(arguing that true community "commands that no one be left out"); J. RAWLS, A THEORY OF
JUSTICE 224-25 (I97I) (arguing that democratic principles mandate that all citizens be afforded
a fair opportunity to influence the political process).
168 See, e.g., R. M'GONIGLE & M. ZACHER, supra note 25, at 67 (noting that the represen-
tation of environmental interests in the IMO has been left to governments).
169 Foreign policy often operates outside the realm of democratic control. See Kaiser, Trans-
national Relations as a Threat to the Democratic Process, 25 INT'L ORG. 706, 712-15 (1971).
For instance, foreign affairs functions of the U.S. government are exempt from the participatory
requirements of the Administrative Procedure Act. See 5 U.S.C. ? 553(a)(I) (I988).
170 See Kaiser, supra note I69, at 714.
171 See, e.g., Vogel, supra note 65, at 257, 266-67 (noting British policy changes resulting
from public concern about the environment); cf. R. M'GONIGLE & M. ZACHER, supra note 25,
at 362-63 (arguing, before the recent changes in Eastern Europe, that the "lack of bureaucratic
accountability limits the role environmental values can play in . . . the Soviet bloc states").
172 See, e.g., COUNCIL ON ENVTL. QUALITY, ENVIRONMENTAL QUALITY I77-226 (I986)
(describing the "Take Pride in America" campaign).
173 The Convention on the Regulation of Antarctic Mineral Resource Activities, June 2,
I988, 27 I.L.M. 859, agreed to after six years of negotiations among 33 states, collapsed due to
the opposition of naturalist Jacques Cousteau and NGOs such as Greenpeace, the Environmental
Defense Fund, and the Wilderness Society. See Bogart, Antarctic Accord Must Protect Envi-
ronment, N.Y. Times, Oct. 24, i989, at A26, col. 4; Manheim, Support Gore Plan, N.Y. Times,
Oct. 24, i989, at A26, col. 5; Shapley, Polar Thinking on the Antarctic, N.Y. Times, Oct. I7,
i989, at A27, col. 2; Browne, France and Australia Kill Pact on Limited Antarctic Mining and
Oil Drilling, N.Y. Times, Sept. 25, I989, at Aio, col. i.
174 See Suy, supra note 78, at 84, I59.

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Finally, greater involvement of non-state actors can bring useful

information to the decisionmaking process and thus improve the sci-
entific credibility and, in turn, the effectiveness of the resulting rules.
Recognizing that "[e]nvironmental policy-making is only as good as
its primary scientific information system,"1175 UNEP frequently calls
on the expertise of NGOs to assist it in making scientific assessments
that many IGOs and states use in their decisionmaking.
2. Which Non-State Actors Should Be Involved? - Although the
reasons for increasing participation by non-state actors apply equally
well to individuals and businesses as to NGOs, IGOs have favored
the NGO form of organization by granting limited participatory rights
to certain NGOs but not to other NGOs or to individuals. Calls for
expanded public participation have likewise focused on NGOs.176
Such proposals encounter serious practical difficulties. Universal
enfranchisement of the thousands of NGOs active in the environmen-
tal area would surely hamstring the efficient operation of IGOs; simply
providing speaking rights to every NGO that wanted them would
enormously increase the length of sessions. Because this is avowedly
not the aim of most commentators and NGOs, it is implicit in calls
for increased participation of NGOs - whether through voting rights
or through standing to bring cases - that some NGOs are more equal
than others, and that not all deserve to participate.
But advocates of expanded NGO rights do not state how they
would determine which NGOs should be entitled to such rights. The
current ad hoc practice, whereby IGOs decide which rights to grant
to various NGOs, ties formal rights to the political power and credi-
bility of the NGO, admitting to the inner circle only NGOs whose
voices have already penetrated it. Nevertheless, IGOs could hardly
avoid being swamped with NGOs if they attempted to restrict the list
to general categories. 177 Using "neutral" criteria such as size or mem-
bership to restrict participation raises the likelihood of arbitrarily
excluding some of the most worthwhile parties, such as grass-roots
groups in developing countries.178 Viewed in this light, granting for-
175 R. SHINN, supra note II4, at I24.

176 See Caldwell, supra note 3, at 24-26; Sands, supra note 68, at 396-401.
177 Suggested definitions of NGOs are provided by Caldwell, supra note 3, at I3, I7 (defining
NGOs as "groups of persons organized to promote some common purpose and to persuade
governments to act on [their] behalf"), and Sands, supra note 68, at 394 (defining environmental
NGOs as groups that "have been active for many years in identifying threats to the environment,
in attempting to force governments to take measures to protect the environment, and in signaling
breaches of existing international environmental regulations").
178 See, e.g., Durning, Mobilizing at the Grassroots, in STATE OF THE WORLD I989, supra
note I24, at I54, I57. It is likewise hard to justify granting rights of formal participation to
groups such as Greenpeace International, see Sands, supra note 68, at 394, before such rights
are granted to entire peoples such as Palestinians, black South Africans, and Tibetans, who
arguably have no formal national representation on the international level and yet much more
closely resemble nation-states.

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mal rights to NGOs (and not to individuals and businesses), although

ostensibly designed to weaken the grip of nation-state politics on
environmental policy, may in fact merely entrench certain well-estab-
lished organizations.
Because changing the participants can change the outcome,179
proponents of greater NGO involvement, knowing that some of the
best organized NGOs support stringent environmental regulation, may
be suspected of manipulating the system to produce stronger substan-
tive policies. Although this push for greater involvement of NGOs
might be justified on the grounds that regulated industries are already
adequately represented at the international level,'80 reformers should
not attempt to orchestrate the involvement of various groups because
to do so would undermine the perceived legitimacy of IGO processes.
Rather, IGOs should improve their means of involving all members
of the public without formally differentiating among those who are
organized in a particular manner or who claim to represent certain
interests.
3. Ensuring Public Participation. - In U.S. agency decisionmak-
ing, the need for greater and more systematic public participation led
to notice, comment, and petition procedures18' rather than to formal
representation of various interests on regulatory commissions. In in-
ternational decisionmaking, the same need requires IGOs to adopt a
more systematic procedure for considering the public's views rather
than to grant special state-like privileges to a select few.
A model method is the U.S. Administrative Procedure Act
(APA). 182 Its main rulemaking components - provision of notice and
review of comments before a proposal is adopted - greatly reduce
the cost of participation and thereby open up the process. 183 Although
agencies need not heed comments,184 they must consider them, and
this mandate, regardless of whether it ultimately changes agency de-
cisions, increases the legitimacy of the rulemaking process.
179 See E. SCHATTSCHNEIDER, THE SEMISOVEREIGN PEOPLE 2 (I960).

180 See Kaiser, supra note i 69, at 7 I 2.
181 See Wong Yang Sung v. McGrath, 339 U.S. 33, 36-37 (I950); 5 U.S.C. ? 553(b) (I988)
(requiring notice); id. ? 553(c) (I988) (requiring the opportunity to comment); id. ? 553(e) (I988)
(requiring the opportunity to petition).
182 5 U.S.C. ?? 551-706 (I988). Despite criticisms, the basic structure of the APA is generally
acknowledged as sound. See Breger, The APA: An Administrative Conference Perspective, 72
VA. L. REV. 337, 338 (I986). These criticisms should, in fact, inform attempts to translate the
model to the IGO context.
183 Aside from the cost of formulating comments, postage is the primary cost to parties in
the notice and comment procedure, as compared with the salaries, flights, and phone bills
involved in maintaining a presence near the agency were notice and comment not required.
184 Courts do, however, review agency decisions in light of the comments received, see
Citizens to Preserve Overton Park, Inc. v. Volpe, 40I U.S. 402, 4I3-i6, 420 (I97i), and agencies
must, in justifying their decisions, respond to "significant" comments, see Portland Cement Ass'n
v. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973), cert. denied, 4I7 U.S. 92I (I974).

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Within existing authority, each environmental IGO could establish

procedures for notifying the public of upcoming proposals and for
receiving and disseminating the comments of interested parties prior
to decisionmaking sessions.185 IGOs would need few additional re-
sources to oversee the process because member-states would evaluate
the comments, much as they currently evaluate comments of other
states and NGOs.186
There may be efficiency costs to allowing all parties to be heard
without regard to their organizational form, the views they espouse,
or the resources they have to influence the process. In the long run,
however, it is an investment that will yield greater conformity with
the IGO's policies. Providing notice of proposals under consideration
and enhancing the uniformity of the decisionmaking process will make
broadened public participation meaningful. The adoption of similar
procedures by IGOs will increase the accessibility and, therefore, the
legitimacy of all international institutional decisionmaking. 187 Because
states and individuals are more likely to comply with IGO decisions
when they perceive IGO processes and the rules they produce to be
legitimate, efforts to broaden and harmonize public participation pro-
cedures will ultimately make IGO decisions more effective.
E. Encouraging Compliance
At traditional international law, "right process" - the perception

of which determines a rule's legitimacy188 - is simply the consent of
each affected state, as expressed either in agreements or in long-
standing practice with the intention to be bound.189 As the preceding
sections have shown, however, "right process" also includes regularity
and openness in decisionmaking. Thus, IGOs may be able to take
effective action in the absence of unanimity or supranational authority
by establishing procedures for adopting substantive standards in a
185 For the sake of consistency and coordination, it would be wise for each environmental
IGO to agree to similar standards and even to share a common periodical for publication of
their proposals and notices of their decisions. See supra note I56 and accompanying text.
186 Although there likely would be many useless comments, member-states could select the
most relevant comments from the complete record based on their individualized opinions of the
authors' expertise, credibility, and political clout. Furthermore, just as the APA allows individ-
uals to petition agencies for changes in regulations, see 5 U.S.C. ? 553(e) (I988), IGOs could
consider proposals (as opposed to mere comments on member-states' proposals) by members of
the public.
187 Accessibility has been cited as a reason for maintaining uniformity in domestic agency
procedures. See Breger, supra note I82, at 344-45 (quoting letter from Antonin Scalia, then
Chairman of the Administrative Conference of the United States, to Congressman John Dingell).
188 See Franck, supra note 3, at 7I.
189 See D. BOWETT, supra note 20, at I46.

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way that raises the political costs of nonconformity.190 Although for

years IGOs have successfully used many such procedures, environ-
mental IGOs have not fully exploited their potential.191 Reformers at
the Brazil Conference should therefore press IGOs and states to con-
sider the following options for encouraging compliance. 192
i. Recommend Standards. - Although a state that objects to
recommended standards does not have to obey them, the force of
world opinion often alters the political decisionmaking process within
a potentially dissenting state and thereby encourages its eventual ac-
quiescence.193 In fact, absent the coercive power of a supranational
authority, recommended standards may in some cases be more effec-
tive than binding ones. Whereas the unanimity requirement for the
adoption of binding standards often leads to a lowest-common-denom-
inator result,194 recommended standards can be more stringent. Even
if such standards are not observed universally, the force of interna-
tional opinion virtually requires nonconforming states to put forth
reasons - even if based on notions of sovereignty - for their non-
observance;195 they cannot merely hide behind their formalistic lack
of consent to the rule. By maintaining aspirational norms, IGOs that
adopt recommended standards encourage states to conform partially
while generating an ongoing dialogue as to how these standards can
accommodate important national interests.196
Although most IGOs have the explicit authority to promulgate
nonbinding standards,197 states may also consider such authority to
190 Political costs are raised simply by an IGO's existence. See C. ARCHER, supra note 6i,
at I44.
191 See Chayes & Chayes, supra note 3, at 280, 308. Nevertheless, two environmental IGOs
have blazed the trail: the International Whaling Commission, see infra p. i6o8, and the Marine
Environment Protection Committee of the IMO, see infra pp. I607-08.
192 The current international legal order requires that states must explicitly agree to such a
procedural system before it can be established, states must first explicitly agree to it. See Chayes
& Chayes, supra note 3, at 286; Feshchenko, Phenomenon of Supranationality in Activities of
International Organizations, I987 SOVIET Y.B. INT'L L. I70-7I. This process is undoubtedly
subject to some of the same problems as the creation of substantive rules by treaty. See sources
cited supra note 62. Nevertheless, the "veil of uncertainty" that arises from the difficulty of
predicting the effect of particular procedural rules on substantive outcomes may reduce the
conflicts over substantive considerations and thereby diminish these problems. See Young, The
Politics of International Regime Formation: Managing Natural Resources and the Environment,
43 INT'L ORG. 349, 36I-62 (I989) (citing G. BRENNAN & J. BUCHANAN, THE REASON OF
RULES: CONSTITUTIONAL POLITICAL ECONOMY 29-30 (I985)).
193 See W. FELD, R. JORDAN & L. HURWITZ, supra note 33, at 9I, I43.
194 See Sand, supra note 2, at 240.
195 See Chayes & Chayes, supra note 3, at 290-9I.
196 This process is analogous to some views of the creation of customary international law.
See G. VAN HOOF, RETHINKING THE SOURCES OF INTERNATIONAL LAW 89-90 (I983). It
therefore may be similarly susceptible to the criticism that it develops too slowly to be useful
in the environmental area. See, e.g., G. MARIS, supra note i6i, at 47.
197 See, e.g., U.N. CHARTER arts. io, II, I3, I4; Convention on the Intergovernmental

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i6o6 HARVARD LAW REVIEW [Vol. 104:I484
be implicit in the very purposes for which an IGO is formed.198

Because recommended standards can be aimed directly at the conduct
of individuals and businesses, the predominant source of harms in the
environmental area, they can effectively circumvent states' objections
to standards that would bind their citizens directly or require the
adoption of domestic laws. 199
2. Audit Compliance. - Although the mere publication of stan-
dards supported by a significant number of states and a respected
secretariat may be quite persuasive,200 the further step of auditing
compliance increases their effectiveness. Few IGOs have explicit au-
thority to monitor compliance, but such authority has often been
written into the original resolutions adopting standards.201 In such
schemes, states regularly report on their compliance, and IGOs then
audit these reports to ensure their accuracy.202 The results of the
audits are sometimes revealed only to the state involved, particularly
in instances when there is some question about the violator's capacity
to comply and the audit serves as a basis for technical assistance.203
In other cases, IGOs rely on the publication of serious violations for
the "mobilization of shame"204 that leads to greater conformity. Fur-
thermore, in cases in which IGO authority is lacking or ineffective,
NGOs are often quite effective in investigating and publicizing
transgressions. 205
Maritime Consultative Organization, Mar. 6, I948, art. 3, para. (a), art. i6, para. (i), 9 U.S.T.
62i, 624, 627, T.I.A.S. No. 4044, at 4, 7, 289 U.N.T.S.. 48, 50, 56; Constitution of the
International Labour Organisation, June 28, igig, art. 405, 49 Stat. 27I2, 2722-24, T.I.A.S.
No. 874, at I2, 225 Parry's T.S. 378-79; Statute of the International Atomic Energy Agency,
Oct. 26, I956, art. III, para. A.6., 8 U.S.T. I093, IO96, T.I.A.S. No. 3873, at 4, 276 U.N.T.S..
3, 6.
198 For a history of the implied powers of IGOs, see R. KHAN, IMPLIED POWERS OF THE
UNITED NATIONS 3-38 (I970). Because NGOs can promulgate effective model codes of conduct,
it would seem incongruous to deny IGOs such tools. For example, the Sullivan Principles
promoted by NGOs are thought to have hastened reform in South Africa. See Wren, Sanctions
Do the Job, But Apartheid's Critics Are Not All for Them, N.Y. Times, June 4, i989, ? 4, at
2, col. I. An environmental NGO is now promoting the "Valdez Principles" to encourage
corporations to assume environmental responsibilities. See Feder, Who Will Subscribe to the
Valdez Principles?, N.Y. Times, Sept. IO, I989, ? 3, at 6, col. I.
199 See F. MORGENSTERN, supra note 53, at II5, I27.
200 This is particularly true in new areas where there are few conflicts in national law and
in other areas where there are practical and economic advantages to harmonization. See Chayes
& Chayes, supra note 3, at 285; Contini & Sand, Methods to Expedite Environment Protection:
International Ecostandards, 66 AM. J. INT'L L. 37, 49 (I972).
201 See, e.g., F. MORGENSTERN, supra note 53, at 125-27 (discussing the use of this method
by the UN General Assembly, the ILO, and the WHO).
202 See Sand, supra note 2, at 2 73-76.
203 Although many developing states have improved their ability to monitor and enforce
domestic environmental policies, see L. CALDWELL, supra note 23, at 278, such efforts continue
to demand the assistance of IGOs such as UNEP, see J. KIWANUKA, supra note I5, at 3I, 50.
204 F. MORGENSTERN, supra note 53, at 125.
205 See Chayes & Chayes, supra note 3, at 297-98.

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Because auditing can detect nonconformity and promote compli-

ance with a standard before significant harm has occurred, it has
distinct advantages over adjudication206 and investigation of com-
plaints. For example, given the catastrophic consequences of global
warming or transnational nuclear accidents, for which ex post liability
is difficult to assign, commentators and UN officials have proposed a
global auditing body.207
3. Investigate Complaints. - By far the most severe form of
"jawboning" is the investigation of complaints charging noncompliance
with recommended standards. Unlike recommended standards and
audits of voluntarily submitted reports, investigation often entails an
adversarial inquiry. Thus, it is usually thought to require express
authorization in the institution's charter or by agreement of the mem-
bers,208 and several IGOs are so authorized.209 Even absent such
authority, world opinion might be effectively mobilized to induce an
accused state to accept an investigation once a credible charge is made.
In investigation, as in auditing and promulgation of recommended
standards, NGOs can play an extremely important role by coordinat-
ing their work with IGOs. In the formalized European Community
complaint procedures, NGOs bring many of the strongest complaints
against member-states,210 and in systems without formal investigation
procedures, NGOs routinely investigate and publicize complaints of
noncompliance.
4. Set Standards Subject to Plurality Rejection. - Although states
often delegate decisions on technical questions to IGOs, they rarely
do so for significant issues.211 Nevertheless, states do occasionally
agree in advance to be bound by IGO standards adopted without
unanimity, subject to potential annulment should a plurality of states
object. A prominent environmental example is the Marine Environ-
ment Protection Committee of the IMO, which can act in a quasi-
legislative manner. A special majority of this committee can adopt
amendments to technical provisions in the I973 Convention for the
Prevention of Pollution from Ships; the amendments then enter into
force until objected to either by more than one-third of the states
207 This institution would "periodically evaluate the performance of states (and per
organizations) in complying with their international [environmental] obligations." Sand, sup
note 2, at 275.
208 See H. SCHERMERS, supra note 45, ? I253, at 694-95.
209 See id. ?? 1246-125i, at 692-94, ?? 1256-1270, at 695-706. Prospects for IGO inves-
tigative authority have increased with the Soviet Union's acceptance of on-site verification in
the Intermediate Nuclear Forces Treaty. See Chayes & Chayes, supra note 3, at 294.
210 See Sand, supra note 2, at 271-73. Of course, few IGO complaint procedures provide
standing to non-states, on the theory that only the interests of member-states are affected at
international law. See F. MORGENSTERN, supra note 53, at II5-i6.

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i6o8 HARVARD LAWREVIEW [Vol. I04:I484
party to the Convention or by states that in combination control a

majority of the world fleet tonnage.212 By establishing a presump-
tively binding norm, this tacit acceptance procedure alters the status
quo and thereby shifts the burden of justifying noncompliance from
the institution to the nonconforming state.
5. Set Binding Standards Subject to Opting Out. - Unlike the
plurality rejection procedure, opt-out procedures maintain the rule in
force on all member-states that do not publicly join the plurality
rejecting it. Because they bring world pressure to bear on individual
states, opt-out procedures raise the political cost of nonconformity and
shift the burden of justifying it to a greater extent than the procedures
discussed above. This second form of tacit acceptance procedure has
been used for many years by IGOs with widely varying compe-
tences,213 including the International Whaling Commission.214
Because they are explicitly compatible with traditional notions of
state consent, opt-out procedures may jeopardize the overall effective-
ness of a standard: depending on the topic, regulations can be under-
mined if a small minority of states with disproportional impact on the
issue opts out.215 Nevertheless, the high political216 and economic217
costs associated with rejecting IGO standards prevent many states
from opting out.218 Moreover, although states whose cooperation is
essential can exact concessions in IGO resolutions, opt-out procedures
in practice may simply reduce the uniformity of standards without
reducing their effectiveness. For instance, during negotiation of the
Montreal Protocol, the Soviet Union, which was then constructing
facilities that produce chemicals harmful to the ozone layer, won a
special provision grandfathering the production of these plants into
the I986 base figures from which reductions are to be made.219 With-
212 See Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, art. i6, para.
(2)(f)(iii), I3 I.L.M. I3I9, I33I; R. M'GONIGLE & M. ZACHER, supra note 25, at 48-49, 357.
213 See, e.g., Convention on International Civil Aviation, Dec. 7, 1944, art. 38, 6i Stat.
ii8o, ii 9i, T.I.A.S. No. I59I, at 15, 15 U.N.T.S.. 295, 322. For further examples, see Contini
& Sand, supra note 200, at 50-5I & n.83.
214 See International Convention for the Regulation of Whaling, Dec. 2, I946, art. V, para.
3, 62 Stat. I7I6, I7I9, T.I.A.S. No. I849, at 5, i6i U.N.T.S. 72, 80-82; Scarff, supra note
56, at 357.
215 For example, in the context of the Montreal Protocol, the population and proposed spread
of refrigeration in China made its participation essential to efforts to reduce ozone-depleting
chemicals. See Benedick, supra note 54, at 138-42.
216 See, e.g., Adams v. Vance, 570 F.2d 950, 956 & n.13 (D.C. Cir. 1977) (noting political
costs of United States opting out of International Whaling Commission action).
217 Opting out of a set of standards aimed at international uniformity may hamper a state's
ability to participate in international trade. See Chayes & Chayes, supra note 3, at 285.
218 See Contini & Sand, supra note 200, at 5i n.87. Furthermore, a rush to opt out can be
slowed by requiring prior approval by the IGO. The International Sanitary Regulations of the
WHO use such a procedure. See D. BOWETT, supra note 20, at 144 n.49.
219 Montreal Protocol on Substances That Deplete the Ozone Layer, opened for signature
Sept. i6, i987, art. 2, para. 6, 26 I.L.M. 1541, 1553 (entered into force Jan. I, i989).

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out such concessions, either the Soviets may not have participated in
the reductions at all or the agreement might have "jelled at a lower
level of collective commitment."220 In essence, a standard addressed
to the different impact each state has on an environmental problem
can meaningfully improve the status quo without applying equally to
every state.221
F. Conclusion
Despite the absence of a centralized, supranational authority, the

international community can more effectively address the environ-
mental problems facing the biosphere. Institutional arrangements for
such action must incorporate the international and domestic experience
of the last twenty years, which shows that through improvements in
the regularity and openness of IGO decisionmaking processes, the
existing international environmental machinery can, even without
complete consensus, take meaningful action that states will observe.
Still, just as "no institution - no matter how lofty the intent, how
forceful the mandate, how careful the design - can in itself save our
planet,"222 neither can the mere redesign of IGO decisionmaking pro-
cedures. Reforms adopted at the Brazil Conference can improve in-
ternational cooperation, but states must commit themselves, through
financial and technical resources and political cooperation, to solving
the problems that threaten our survival. Reformed legal arrangements
are necessary, but they alone are not sufficient to overcome the en-
vironmental challenges of our generation.
VI. EXTRATERRITORIAL ENVIRONMENTAL REGULATION
The body of customary norms and international agreements that

comprise the public international legal system do not provide compre-
hensive environmental protection. In those areas in which public
international law does not protect the environment, international en-
vironmental protection is only as strong as the sum of individual states'
domestic environmental regimes. Consequently, any treatment of in-
ternational environmental law must consider how domestic environ-
mental regimes may add to the protection of the global environment.
The efficacy of an international regime constructed from the en-
vironmental regulation of individual states will depend on two factors.
First, each country must set stringent standards and must extend the
protection of its standards to foreign citizens injured by transboundary
pollution emanating from that country. Second, each country must
220 Sand, supra note 2, at 242.

221 See id. at 244-46.
222 Tolba, supra note 3, at 105.

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i6io HARVARD LAWREVIEW [Vol. I04:I484
have the power to enforce these standards domestically. In recent

years, environmentalists have criticized the international community's
reliance on a regime that depends on the ability and willingness of
each state to regulate the potentially harmful activities that occur
within its own borders. Commentators note that this system would
work well if every state had a strong environmental regime and
provided foreign citizens equal access to its domestic procedures for
seeking redress.1 They conclude, however, that an international sys-
tem consisting of discrete national policies fails to protect the environ-
ment because some states have weak environmental regimes - that
is, some states either set low environmental standards,2 do not allow
foreign citizens to invoke these standards,3 or lack the power to
enforce these standards.4
To remedy these weaknesses, environmentalists and commentators
have urged states with strong environmental regimes, such as the
United States, to extend the reach of their legal systems to govern
conduct in other countries.5 This approach circumvents the need to
1 See, e.g., McCaffrey, Private Remedies for Transfrontier Pollution Damage in Canada and
the United States: A Comparative Survey, I9 U. W. ONTARIO L. REv. 35, 38-39, 94 (i98i);
Organisation for Economic Co-operation and Development Secretariat, Equal Right of Access
in Matters of Transfrontier Pollution in OECD Member Countries, in LEGAL ASPECTS OF
TRANSFRONTIER POLLUTION 54, I27 (OECD ed. I977).
Nonetheless, even if all countries enacted stricter standards and allowed foreign citizens and
governments equal access to the domestic legal regime, an atomistic system would still face
certain limitations. See Handl, State Liability for Accidental Transnational Environmenta
Damage by Private Persons, 74 AM. J. INT'L L. 525, 525-27, 564-65 (I980) (arguing that states
should be held liable for transnational environmental damage caused by private actors over
which the state exercises control when the individuals lack adequate financial resources to
compensate the victims); Magraw, Transboundary Harm: The International Law Commission's
Study of "International Liability," 8o AM. J. INT'L L. 305, 32I (I986) (stating that certain type
of environmental problems, such as acid rain, require a high degree of coordination and
cooperation among states).
2 See, e.g., Note, Equal Rights of Access in Matters of Transboundary Pollution: Its Prospects
in Industrial and Developing Countries, I4 CAL. W. INT'L L.J. I92, I99-203 (I984) (describing
the narrow definitions of pollution that developing countries use). For a discussion of how low
environmental standards harm the global environment, see infra p. I6I7.
3 For example, Canadian jurisdictional rules prevent suits by U.S. citizens who claim that
their land was damaged by pollution emanating from Canada. See McCaffrey, Trans-Boundary
Pollution Injuries: Jurisdictional Considerations in Private Litigation Between Canada and the
United States, 3 CAL. W. INT'L L.J. 191, 224-29 (I973).
4 Strong standards and liberal access to courts may be meaningless because courts are
ineffective at enforcing environmental laws. See, e.g., Sinchez, Health and Environmental
Risks of the Maquiladora in Mexicali, 30 NAT. RESOURCES J. I63, 176-80, 184-86 (I990)
(describing how difficulty of detection combined with weak institutional controls and minimal
penalties have undermined the efficacy of Mexican hazardous waste regulation).
5 See Bilder, The Role of Unilateral State Action in Preventing International Environmental
Injury, 14 VAND. J. TRANSNAT'L L. 51, 90-95 (I98I); Lutz, The Export of Danger: A View
from the Developed World, 20 INT'L L. & POL. 629, 67I-76 (I988); Turley, "When in Rome":

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I99I] DEVELOPMENTS -INTERNATIONAL ENVIRONMENTAL LAW i6ii
secure foreign states' adherence to strict environmental standards set

forth under public international law. Instead, it simply subjects in-
dividuals acting in territory governed by weaker regimes to the stricter
environmental standards of other states.6 States can extend the reach
of strong domestic regimes by two means: extraterritorial legislation7
and extraterritorial adjudication.8 These methods are collectively re-
ferred to here as extraterritorial regulation.9 An example of extrater-
ritorial environmental legislation would be a federal statute requiring
foreign subsidiaries of U.S. corporations to adhere to the standards
promulgated by the Environmental Protection Agency (EPA). Extra-
territorial adjudication occurs when a U.S. court hears a private claim
against a U.S. corporation whose manufacture and export of pesticides
causes harm abroad. Although there have been few instances of actual
extraterritorial environmental regulation by U.S. courts and legisla-
Multinational Misconduct and the Presumption Against Extraterritoriality, 84 Nw. U.L. REV.
598, 655-62 (I990); Note, Constructing the State Extraterritorially: Jurisdictional Discourse,
the National Interest, and Transnational Norms, I03 HARV. L. RiEV. I273, I297-I30I (I990).
But see Grundman, The New Imperialism: The Extraterritorial Application of United States
Law, I4 INT'L LAW. 257, 264-66 (I980).
Most attention, however, has focused on the possibility of bringing suit against transboundary
polluters in a country with a strong environmental regime. See, e.g., Cooper, The Management
of International Environmental Disputes in the Context of Canada-United States Relations: A
Survey and Evaluation of Techniques and Mechanisms, I986 CANADIAN Y.B. INT'L L. 247,
27i-8I (discussing judicial and legislative approaches to resolving transboundary pollution dis-
putes in the receiver state); Sand, The Role of Domestic Procedures in Transnational Environ-
mental Disputes, in LEGAL ASPECTS OF TRANSFRONTIER POLLUTION, supra note I, at T46,
I58-97 (focusing on how transboundary pollution cases can be resolved in the courts of the
country where the harm occurs).
6 A discussion of the use of domestic courts for adjudicating claims brought against foreign
governments for violating customary international law or treaty obligations is beyond the scope
of this Part. For one case providing background on this topic involving an attempt to force
Japan to adhere to its obligations under an international treaty, see Japan Whaling Ass'n v.
American Cetacean Soc'y, 478 U.S. 22I, 240-4I (I986). See also infra note 36 (discussing the
application of customary international law to environmental disputes).
7 As used in this Part, extraterritorial legislation refers to the application of one state's
statutes and regulations to activities occurring within another country's territory.
8 As used in this Part, extraterritorial adjudication refers to the use of courts (usually U.S.
courts) to resolve common law disputes, such as private torts, that arise out of activities carried
on in foreign territory. In some instances the term also encompasses the decision whether to
apply U.S. or foreign tort law to determine the standard of care.
9 Extraterritorial regulation concerns the use of the domestic legal system to control activities
occurring in foreign territory. This Part divides the discussion of extraterritorial regulation
between statutory claims and common law or tort claims. This typology corresponds roughly
to a division between public and private law. It also reflects two frequently used legal ap-
proaches to environmental regulation. Such a functional approach permits a clear discussion of
the issues that motivate proposals for regulation and therefore provides a base on which to
examine the different doctrines that courts employ in determining how to respond to such
proposals.

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I6I2 HARVARD LAW REVIEW [Vol. 104:1484
tures,10 at least one recent court decision suggests that extraterritorial

regulation may become more common.11
Expansive application of one state's domestic legal regime may not
always be appropriate. Many commentators believe that a tradeoff
exists between environmental protection and economic growth. To
the extent that one state's extraterritorial regulation successfully raises
the environmental standards to which actors in another country must
adhere, it may reduce the second country's rate of economic growth
and disrupt its economic development. 12 Proponents of extraterritorial
regulation rarely detail either how effective their plan will be in
protecting the environment or the costs regulation will impose on
economic development. Even more rarely do they discuss the manner
in which these costs and benefits will be distributed among states with
weaker and stronger regimes or the criteria according to which states'
competing interests should be weighed. As a result, it is difficult to
determine whether, in a particular instance, extraterritorial environ-
mental regulation would be desirable.
Focusing on the United States as the paradigmatic strong environ-
mental regime, section A of this Part discusses the arguments for
extraterritorial environmental regulation. Section B examines the doc-
trines that U.S. courts confronted with environmental challenges use
to determine whether extraterritorial regulation is warranted. The
section concludes that these doctrines fail to provide sufficient guid-
ance either because they do not take into account the costs and benefits
of extraterritorial regulation or because the costs and benefits they do
consider do not include the considerations specific to environmental
regulation. Section C identifies the costs and benefits particular to
environmental conflicts and suggests a method by which U.S. courts
should balance these competing interests.
A. The Rise of Extraterritorial Environmental Regulation
A state with a strong environmental regime can regulate extrater-

ritorially in two distinct ways: through legislation and adjudication.
10 Extraterritorial environmental regulation, particularly in the form of adjudication, is more

common in Europe. For examples of intervention, see J. LAMMERS, POLLUTION OF INTERNA-
TIONAL WATERCOURSES 68-78 (I984); Nuniez-Miuller, The Schoenberg Case: Transfrontier Move-
ments of Hazardous Waste, 30 NAT. RESOURCES J. 153, I57-6I (I990); and Sand, supra note
5, at I58-97.
11 See Dow Chem. Co. v. Alfaro, 768 S.W.2d 674, 679 (Tex. I990) (holding that the Texas
legislature has statutorily abolished the forum non conveniens doctrine in suits to enforce a
personal injury or wrongful death claim in Texas courts), cert. denied, III S. Ct. 671 (1991).
As a result, foreign citizens from certain countries will be able to sue in Texas courts whenever
they are injured by environmental harm caused by U.S. companies over which Texas courts
have personal jurisdiction.

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I99I] DEVELOPMENTS - INTERNATIONAL ENVIRONMENTAL LAW I6I3
A general understanding of how domestic environmental legislation

and adjudication operate in both strong and weak environmental
regimes may be helpful for understanding the details of extraterritorial
regulation.
i. Environmental Regulation in Strong and Weak Regimes - (a)
Legislation. - Most countries have enacted some sort of regulatory
regime that establishes environmental standards for domestic activi-
ties.13 The amount of environmental protection that these laws pro-
vide, however, varies widely among countries.14 For example, the
United States heavily regulates domestic land use in order to prevent
air, water, and noise pollution. 15 Similarly, the United States regulates
the domestic use of environmentally hazardous items such as chemicals
and pesticides by requiring that these items be approved by the EPA
as environmentally acceptable before they are sold in the domestic
market. 16 By contrast, many states have adopted significantly more
lenient pollution standards.17 For example, many allow the use of
pesticides such as DDT that the United States has prohibited as
environmentally unacceptable. 18
Domestic regimes differ not only in the standards they set, but
also in the effectiveness of their enforcement. Even stringent stan-
dards require robust enforcement mechanisms to ensure adequate pro-
13 See Feraru, Environmental Actors, in ENVIRONMENT AND THE GLOBAL ARENA 65-66
(K. Dahlberg, M. Soroos, A. Feraru, J. Harf & B. Trout eds. I985) [hereinafter GLOBAL ARENA]
(noting the growth of environmental agencies in many countries); Note, supra note 2, at 2I0
(recounting the results of a survey revealing that essentially all countries have some form of
environmental protection law).
14 The amount of protection varies significantly between developed and developing countries.
See Note, supra note 2, at I95. Although member countries of the Organisation for Economic
Cooperation and Development (OECD) have similar levels of economic development, significant
differences still exist among the levels of protection that they provide. See Kopp, Portney &
DeWitt, Comparing Environmental Regulation in the OECD Countries, RESOURCES, Fall I990,
at io.
15 See generally W. RODGERS, HANDBOOK ON ENVIRONMENTAL LAW ?? 3.I-5.I0, at 208-
6i8 (I977) (describing the U.S. environmental protection system).
16 See id. ? 8.4, at 857-63. Products banned for use in the United States, such as DDT,
can be exported to other countries. Federal regulations require, however, that the exporter
obtain the consent of the appropriate officials in the importing country before the item can leave
the United States. Additionally, the manufacturer must meet most of the labeling requirements
applied to products sold in the United States. See Comment, Efforts to Prevent Misuse of
Pesticides Exported to Developing Countries: Progressing Beyond Regulation and Notification,
I2 ECOLOGY L.Q. I025, I034 (i985).
17 See Kopp, Portney & DeWitt, supra note I4, at I3. Indeed, many foreign countries have
not developed coherent environmental requirements. See Kuku, Environmental Planning for
Industry in a Developing Country, ii INT'L BUS. LAW. 49, 49 (I983); Note, supra note 2, at
209-I0.
18 See Note, Restrictions on the Exportation of Hazardous Products to the Third World:
Regulatory Imperialism or Ethical Responsibility?, 5 B.C. THIRD WORLD L.J. I29, I34-35
(I985).

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I6I4 HARVARD LAW REVIEW [Vol. 104:1484
tection. 19 Although many states have created agencies to enforce

environmental regulations,20 many of these agencies lack the resources
and expertise to detect and prosecute violations.21
(b) Adjudication. - Most states also provide some system of
adjudication in which private harm - including environmental harm
- can be redressed through the courts.22 Whether adjudication suc-
cessfully protects the environment depends in part on the substantive
rules that govern liability. The most protective rule is strict liability,
which most American courts will apply to an environmentally haz-
ardous activity.23 Under a strict liability rule, courts require polluters
to pay for the damage they cause whether or not their behavior was
reasonable.24 Knowing this, polluters normally minimize their liability
for environmental harm either by reducing the level of harmful
activity25 or by employing technology to reduce the activity's ill effec
Many states employ a negligence rule,26 according to which polluters
are forced to pay only if the polluting activity was conducted without
reasonable care.27 Both rules provide a deterrent to potential exces-
19 In addition to enforcement by government agencies, many countries allow enforcement

through private citizen suits. See J. MILLER, CITIZEN SUITS: PRIVATE ENFORCEMENT OF
FEDERAL POLLUTION CONTROL LAWS I0-I5 (I987). Although a state might grant its citizens
standing to sue under regulatory statutes for environmental harm, that option is unlikely to
have much impact when there is a strong backdrop of central government regulation. See
Ottley & Valauskas, China's Developing Environmental Law: Policies, Practices and Legislation,
6 B.C. INT'L & COMP. L. REv. 8I, II3-I7, II9 (I983).
20 See GLOBAL ARENA, supra note I3, at 65 (noting that nearly IOO countries now have
environmental protection agencies).
21 See Sen, Environment Planning for Industry in the Developing Countries, II INT'L Bus.
LAW. 55, 56 (I983) (comparing the relative effectiveness of different countries' regulatory agen-
cies); Comment, supra note i6, at I030 ("The entire staff of a ministry of agriculture in a
developing country may consist of only one or two people with 'nothing but a motorcycle and
no fuel."' (quoting interview with L. Caltagirone, Professor of Entomology at the Center for
Biological Control, University of California, Berkeley and Advisor to USAID in Central America
(May ii, I984))); see also Rao & Sumitra, A Critique of the Environment Act, II COCHIN U.L.
REv. i8, 25, 3I (I987) (noting that although India's new environmental protection legislation is
quite strict in certain respects, the government failed to delegate enforcement to an effective
agency).
22 In strong environmental regimes, these suits supplement the general protection provided
by environmental regulation. See Note, supra note 2, at 209.
23 The United States tends to employ strict standards for the sale of pesticides and toxic
chemicals and for environmentally hazardous activities such as the operation of a pesticide
factory. See W. RODGERS, supra note I5, ? 2.3, at io8-io, ? 8.2, at 84I-44.
24 See id. ? 2.3, at IO9-IO.
25 Alternatively, the polluter may simply pass this cost increase on to consumers who will
decrease the demand for the item, thereby decreasing the actual activity necessary for productio
Of course, this assumes that pollution increases incrementally and that demand is elastic.
26 See Note, supra note 2, at 2I0.
27 See W. KEETON, D. DOBBS, R. KEETON & D. OWEN, PROSSER AND KEETON ON TORTS
?? 32-35, at I75-220 (5th ed. I984) [hereinafter PROSSER & KEETON ON TORTS]. Reasonableness
is often defined in terms of the social utility of the activity. See id. ? 32, at I73; R. POSNER,
ECONOMIC ANALYSIS OF LAW ? 6.2, at I22-23 (2d ed. I977).

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sive polluters, although the deterrent effect is greater under strict

liability.28 Among states that apply a negligence rule, the level of
protection can vary considerably.29
The efficacy of domestic adjudication in providing environmental
protection may also depend upon factors that are less related to the
substantive environmental standards than to the adjudicatory process
itself.30 For example, U.S. courts aid injured plaintiffs by allowing
such procedural advantages as broad discovery and class actions.
American plaintiffs' lawyers also facilitate environmental suits by
working on a contingency fee basis. Similarly, the remedies awarded
by U.S. courts tend to be significantly higher - and, therefore, of
greater deterrent value - than those awarded by foreign courts.3' In
contrast, adjudicatory systems in many states discourage environmen-
tal litigation32 through such means as damage award caps.33
A related issue is the ability of plaintiffs who reside in one country
but who were harmed by the activities of a company in another
country to seek redress under the environmental laws and judicial
procedures of the source state. For example, the United States allows
foreign states and their citizens standing in U.S. courts and provides
28 Standards in tort law remain inherently open-ended; thus, negligence and strict liability
rules can lead to similar results. See PROSSER & KEETON ON TORTS, supra note 27, ? 78, at
552, ? 79, at 559-60.
29 Negligence standards derive from notions of reasonableness and social utility. Certainly,
what is socially useful or reasonable will depend upon the specific circumstances and cultural
norms of the country in question. Therefore, the substantive content of a negligence standard
will vary according to the economic needs of a particular country:
One cannot in good faith transfer standards used in the U.S. and other Western countries
for use in developing countries. . .. Climatic conditions influence the assimilation
capacity of the environment and thus alter the acceptable amount of pollutants to be
discharged to the environment. Technology available for waste treatment must be taken
into account in setting standards. In addition, developing countries may be willing to
sacrifice the environmental quality for industrial development.
Defries, The Role of Environment in the Development Process, II INT'L Bus. LAw. 52, 53
(I983).
30 Procedural advantages can result in greater environmental protection. See McCaffrey,
supra note I, at 94 (concluding that although U.S. and Canadian environmental laws are similar,
U.S. law is more environmentally protective, in part because plaintiffs have access to contingent
fee attorneys and higher damages).
31 The amount that an injured plaintiff may recover varies widely among countries. A recent
study conducted by the International Bar Association found that damages for the same personal
injury will vary from $2,000,000 in the United States to $io,ooo in Switzerland and $2,000 in
Greece. See IBA on Product/Environmental Liability, World Loss Report, Oct. 20, I989, at 5
(copy on file at the Harvard Law School Library).
32 See, e.g., Galanter, Legal Torpor: Why So Little Has Happened in India After the Bhopal
Tragedy, 20 TEX. INT'L L.J. 273, 274 (I985) (noting that the Indian legal system requires
plaintiffs in civil suits to pay an ad valorem fee on a regressive scale in order to bring suit).
33 See Wiehl, Texas Courts Opened to Foreign Damage Cases, N.Y. Times, May 25, I990,
at B6, cOl. 3 (noting that Costa Rica caps recovery at $I500 per person); see also Galanter,
supra note 32, at 276 (observing that although India has the most advanced bar in the Third
World, Indian judges impose low damage awards and almost never impose punitive damages).

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I6I6 HARVARD LAW REVIEW [Vol. I04:I484
them roughly the same degree of protection from environmental harms

that originate in the United States as it affords its own citizens.34
Other states, however, do not allow such relief to foreign nationals.35
2. The Need for and Power of Extraterritorial Regulation.
Public international law has traditionally limited its concern to envi-
ronmental harm that spreads from one state to another, such as drift-
ing smoke, and harm that affects the global commons, such as the
destruction of the ozone layer.36 Environmentalists contend that ex-
34 Although the issue has never been raised explicitly, foreign citizens have been allowed
under state law to sue U.S. corporations for pollution that originates within the United States
and causes harm abroad. See Michie v. Great Lakes Steel Div., 495 F.2d 2I3 (6th Cir.), cert.
denied, 4I9 U.S. 997 (I974). Foreign governments are allowed to sue under many U.S. envi-
ronmental regulations if they provide reciprocal protection to the United States under their
regulatory regimes. See The Queen ex rel. Ontario v. United States EPA, 9I2 F.2d I525, I527
(D.C. Cir. I990) (dismissing a suit brought to protect Canada from acid rain because the EPA
is not yet able to identify specific sources in the United States of pollutants that cause harm in
Canada). Foreign environmental groups and government entities have participated in suits
requiring the preparation of environmental impact statements to consider harms that will occur
abroad from domestic activities. See, e.g., Swinomish Tribal Community v. Federal Energy
Regulatory Comm'n, 627 F.2d 499, 5I2 (D.C. Cir. I980); Canada Community Improvement
Soc'y v. City of Michigan City, 742 F. Supp I025 (N.D. Ind. I990).
For a description of the possible bases upon which Canadians could sue for environmental
harms originating in the United States, see McCaffrey, supra note i, at 40-60; and McCaffrey,
supra note 3, at 2I7-39.
35 See, e.g., Cooper, supra note 5, at 273-74 (noting that U.S. citizens cannot seek redress
in Canadian courts because of an interpretation of the local action rule used by Canadian courts);
cf. Note, supra note 2, at 2I4-I5 (observing that the legal right to bring suit in many developing
countries does not result in environmental protection because court systems and enforcement
mechanisms are often inadequate).
36 This section does not formally address the traditional conception of public international
environmental law as set forth in part VI of the Restatement (Third) of the Foreign Relations
Law of the United States. The Restatement has no binding force but merely codifies the
American Law Institute's understanding of U.S. obligations under public international law.
Moreover, it provides no basis for approaching extraterritorial environmental regulation because
it adheres to the territorial view traditionally accepted in international law. First, it does not
apply to purely internal affairs of foreign countries; therefore, it would not apply unless trans-
boundary environmental harm or pollution of the global commons was involved. See RESTATE-
MENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES ? 6oi comment c,
part VI introductory note (I987) [hereinafter RESTATEMENT OF FOREIGN RELATIONS LAW].
Second, in cases in which pollution enters the United States, the Restatement directs injured
U.S. citizens to sue in the country from which the pollution emanates. That jurisdiction is
supposed to provide the injured plaintiff the same level of protection as it provides its own
citizens. See id. ? 602 comment b. In the absence of effective relief in the foreign court system,
the Restatement provides that victims may sue in U.S. courts if these courts are willing to
exercise jurisdiction over the claim, but it fails to state which state's law should govern the
dispute in this instance. See id. ? 602 comment b, comment c. Finally, it specifically does not
apply to environmental harms not connected to transboundary pollution, such as pesticide
exports or control of multinational corporations. See id. part VI introductory note. See generally
Caron, The Law of the Environment: A Symbolic Step of Modest Value, I4 YALE J. INT'L L.
528 (I989) (criticizing the Restatement for failing to extend its reach so that it would govern
activities conducted soley within foreign territory).

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traterritorial regulation should apply not only to these harms but also
to environmental harms contained within the territory of a single state,
such as the destruction of a lake. They argue that the environmental
threat posed by weak regimes is never purely local because the global
environment is interconnected.37 In addition, they claim that the
operation of competitive international markets means that the exis-
tence of weak environmental regimes undermines the willingness of
any state to enact stricter environmental standards. Because firms
subject to rigid environmental regulation are likely to have higher
costs than firms in a country with little regulation, domestic political
pressures to equalize the commercial playing field by relaxing stan-
dards may result in a race to the bottom in environmental regulation.38
To remedy the danger that weak regimes pose to international
environmental protection, environmentalists have called upon the
United States to intervene and apply its stricter environmental regime
extraterritorially. Incidents that have prompted plaintiffs to resort to
U.S. courts include the pesticide plant disaster in Bhopal, India,39 the
dumping of mercury into Lake Erie by a Canadian company,40 and
the use of hazardous pesticides in Costa Rica.4' These and other
incidents42 have also generated numerous legislative proposals for
extraterritorial legislation.
(a) Extraterritorial Adjudication. - Three conditions must be met
for plaintiffs to obtain effective extraterritorial adjudication: first, U.S.
courts43 must have jurisdiction to hear the case; second, the substan-
37 Environmentalists make two types of arguments to show how the United States is ad-
versely affected by what might appear to be purely localized, foreign environmental harm.
First, all environmental harms potentially hurt the United States because of the interconnect-
edness of the biosphere. See Kurup, Environmental Protection Act: A Scientist's View, iI
COCHIN U.L. REv. I2, I3 (I987) ("The earth, as a whole, has one atmosphere. The global
atmosphere cannot be divided into Indian, American or Russian."). Second, chemical agents
such as pesticides that have been banned in the United States, but sold for use abroad, may
return on food imports. See Comment, supra note i6, at I028-29.
38 See J. Kalt, The Impact of Domestic Environmental Regulatory Policies on U.S. Inter-
national Competitiveness 30-32 (Mar. i985) (Energy & Environmental Policy Center Discussion
Paper on file at the John F. Kennedy School of Government Library) (detailing the cost increase
associated with strict environmental standards); see also Kopp, Portney & DeWitt, supra note
14, at I3 (noting that the strict hazardous waste standards maintained in the United States may
reduce U.S. competitiveness); Sanchez, supra note 4, at I85 (stating that many U.S. firms have
fled California to take advantage of the relaxed environmental standards in Mexico).
40 See infra pp. i6I9-20.
41 See infra p. i6i8.
42 For example, widespread publicity about the journey of a barge loaded with American
waste that spent over a year at sea after being denied entrance by more than seven countries
on three continents prompted the proposal of numerous bills for restricting waste exports from
the United States. See, e.g., H.R. 50I8, iooth Cong., 2d Sess. (i988) (proposing a ban on the
export of any waste from the U.S.); see also Gilmore, The Export of Nonhazardous Waste, I9
ENVTL. L. 879, 879-89 (I989) (detailing legislative proposals to limit waste exports).
43 To simplify the discussion, this Part refers to state and federal courts collectively as

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i6i8 HARVARD LAW REVIEW [Vol. 104:1484
tive environmental law being applied must be strong enough to estab-

lish liability; and third, courts must be able to enforce the judgment
against the polluter.
United States courts have broad jurisdictional44 powers that permit
them to hear claims concerning environmentally harmful activities that
occur in the territory of other states. There will always be at least
one U.S. court with general personal jurisdiction over a given U.S.
citizen; thus, some U.S. court can hear any claim brought against a
U.S. defendant, no matter where that claim arises.45 As a result,
many foreign plaintiffs, attracted by the advantages of the American
legal system, have sued American corporations in the United States
for activities and harms that have occurred abroad.46 For example,
Pepsi was recently sued in the United States for injuries caused by a
bottle that exploded in Jamaica.47 An analogous case has arisen in
the environmental context. In Dow Chemical Co. v. Alfaro,48 Costa
Rican farm workers were permitted to bring suit in a U.S. court for
injuries caused by a pesticide manufactured in the United States and
exported to Costa Rica.49 Filing suit in the United States was clearly
more favorable to the Alfaro plaintiffs because American attorneys
were willing to represent the injured indigent farm workers for a
contingency fee and because litigating in the United States allowed
the plaintiffs to avoid a $I,500 cap that Costa Rica places on recovery
in personal injury cases.50 Environmentalists believe that suits of this
sort will reduce U.S. corporations' willingness to export environmen-
tally hazardous pesticides.51
United States courts may also have personal jurisdiction over for-
eign corporations. If corporations maintain "continuous and system-
"United States courts." In most instances of international environmental adjudication, the

difference between foreign and United States courts, is bound to be more salient than the
difference between federal and state courts, because any court in the United States is likely to
provide more environmental protection than its foreign counterpart. See supra p. I6I3.
44 This Part does not discuss subject matter jurisdiction in private suits. Because state courts
are courts of general jurisdiction, they have subject matter jurisdiction in all suits, unless
specifically denied jurisdiction by statute. See G. BORN & D. WESTIN, INTERNATIONAL CIVIL
LITIGATION IN UNITED STATES COURTS 404-05 (I989); E. CHEMERINSKY, FEDERAL JURISDIC-
TION ? 5.I, at 2I7 (I989).
45 See von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 HARV.
L. REV. II2I, II43 (I966).
46 See W. FREEDMAN, FOREIGN PLAINTIFFS IN PRODUCTS LIABILITY ACTIONS: THE DE-
FENSE OF FORUM NON CONVENIENS ?? 2.I-2.4, at I7-25 (I988).
47 See White v. Pepsico, 866 F.2d 1325 (iith Cir. i989).
48 768 S.W.2d 674 (Tex. I990), cert. denied, iii S. Ct. 67I (199i).
49 See id. at 68i (Doggett, J., concurring).
50 See Wiehl, supra note 33, at B6, col. 3.
51 See id.; see also Alfaro, 768 S.W.2d at 687-89 (Doggett, J., concurring) (explaining that
the outcome in this case will force multinational corporations to reduce their exports of hazardous
pesticides to foreign countries that might not ban the use of such substances).

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I99I] DEVELOPMENTS - INTERNATIONAL ENVIRONMENTAL LAW I6I9
atic" business contacts within the United States, courts can constitu-
tionally claim general jurisdiction over these entities and hear any
claims brought against them.52 Thus, a foreign corporation that pro-
duces pesticides in a foreign factory and sells pesticides to Costa Rica
might, like Dow in Alfaro, find itself subject to a suit in U.S. courts
if it has maintained sufficient contacts with the United States to
support an assertion of general jurisdiction.53
When the foreign corporation does not retain sufficient contacts to
support general jurisdiction, U.S. courts can still claim specific juris-
diction over foreign corporations that have minimum contacts with
the United States. Growing out of the transactional notion of juris-
diction developed in International Shoe Co. v. Washington,54 specific
jurisdiction permits U.S. courts to exercise jurisdiction over foreign
defendants for a particular claim if it was reasonably foreseeable that
the activity giving rise to that claim might cause harm within the
United States.55 In Ohio v. Wyandotte Chemicals Corp.,56 the state
of Ohio brought such a claim against a Canadian subsidiary of Dow
Chemicals that was dumping mercury into Canadian streams that fed
directly into Lake Erie.57 The plaintiff argued that the defendant had
52 See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 4I4-I8 (I984) (setting
out the requirements necessary to support general jurisdiction against a foreign corporation
"doing business" within a state).
53 Not only will U.S. courts have personal jurisdiction over the foreign defendant, but they
will also have subject matter jurisdiction over the case because many state courts are courts of
general subject matter jurisdiction. Although the U.S. court may have jurisdiction to decide
such a case, the suit would most likely be dismissed on grounds of forum non conveniens. See
generally W. FREEDMAN, supra note 46, ?? 9.I-9.9, at I19-3I (discussing various claims brought
by "foreign plaintiffs against foreign defendants in U.S. courts").
54 326 U.S. 3I0 (I945).
55 The Court is presently in the process of articulating workable limits to this jurisdictional
scheme so that every foreign actor whose actions might result in some harm in the United States
is not liable to be haled into court in the United States. See, e.g., Asahi Metal Indus. v.
Superior Court, 480 U.S. I02, III-I3 (I987) (holding that foreign defendant did not have the
minimum contacts necessary for the court to retain jurisdiction). See generally Note, Asahi
Metal Industry Co. v. Superior Court: Effect of State Court Jurisdiction on International Trade,
3 AM. U.J. INT'L L. & POL'Y I97 (I988) (noting that the Asahi test provides little guidance and pro-
posing some rules in the international context to limit the scope of state courts' jurisdictional reach).
56 40I U.S. 493 (I97I).
57 See id. at 494. Although the case was dismissed on other grounds, see id. at 503-05, it
is generally accepted that U.S. courts can claim specific jurisdiction over foreign companies that
operate in other countries if these companies could reasonably foresee that their actions would
cause environmental harm within the United States. See World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 306-07 (I980) (Brennan, J., dissenting) (citing Wyandotte for the
proposition that jurisdiction can be exercised over foreign individuals who reasonably foresee
that their activities will cause pollution in the United States); A. LOWENFELD, CONFLICT OF
LAWS 623 n.x (I986); McCaffrey, supra note 3, at 246-47; see also United States v. Conservation
Chem. Co., 6I9 F. Supp. I62, 249 (W.D. Mo. I985) (allowing expansive use of a long-arm
statute to acquire personal jurisdiction over an out-of-state defendant in cases involving the
Comprehensive Environmental Response, Compensation, and Liability Act of I980 (CERCLA),
42 U.S.C. ?? 960I-9675 (I988)).

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sufficient connection with the forum because it knew that the pollution
would harm the territorial waters of the United States.
These jurisdictional bases for extraterritorial environmental regu-
lation have been augmented by the courts' ability to pierce the cor-
porate veil. Because a corporate parent and its subsidiary are two
distinct entities that may have different citizenships, a U.S. court
might lack jurisdiction over a foreign corporate entity. Using doctrines
of alter ego58 and agency, however, courts can extend their reach to
environmental activities that occur abroad.59 For example, in In re
Union Carbide Corp. Gas Plant Disaster,60 Indian plaintiffs, injured
by a cloud of toxic gas released from a pesticide factory owned by
Union Carbide of India (UCIL), brought suit in U.S. courts against
the American parent, Union Carbide Corporation (UCC).61 Bypassing
capital-poor UCIL,62 whose contacts with the United States might not
have been sufficient to justify jurisdiction in American courts,63 the
Indian plaintiffs directly sued UCC, a corporation over which the
American court could clearly exercise personal jurisdiction.
In many instances, access to U.S. courts may be at least as im-
portant to plaintiffs as the standards applied by those courts. Not
only do plaintiffs benefit from favorable procedures in U.S. courts,64
but also the simple ability to bring suit will give plaintiffs greater
leverage to force defendants to settle.65
58 See Note, Piercing the Corporate Law Veil: The Alter Ego Doctrine Under Federal
Common Law, 95 HARV. L. REV. 853 (I982) (outlining the methods by which courts approach
veil-piercing by applying notions of alter ego and instrumentality).
59 See generally G. BORN & D. WESTIN, supra note 44, at 104-I8 (explaining how U.S.
courts can use veil-piercing techniques to expand their jurisdictional reach).
60 634 F. Supp. 842 (S.D.N.Y. I986), aff'd as modified, 809 F.2d 195 (2d Cir. I987).
61 See id. at 844-45.
62 After the accident, UCIL had a net worth of approximately $27 million, which included
the debilitated factory, and faced claims over $i billion. The assets of UCC, which owned 5i%
of UCIL, would have to be attached to satisfy any reasonable judgment. Therefore, the, ability
to pierce the corporate veil and proceed directly against UCC was necessary for effective
recovery. See Westbrook, Theories of Parent Company Liability and the Prospects for an
International Settlement, 20 TEX. INT'L L.J. 321, 327 (I985).
63 The availability of a U.S. judicial forum was considered essential in order to obtain
judgment against UCC because the systemic limitations of the Indian tort system - including
delay, the rare use of class action litigation, and limited discovery - might have prevented the
case from being adequately resolved in India. See Galanter, supra note 32, at 273-8i. Even
if the plaintiffs had obtained a judgement against UCC, U.S. courts might not have honored
the Indian decision. See Davis, The Bhopal Litigation, 29 J. INDIAN L. INST. 321, 351-55
(I987).
64 See, e.g., IBA on ProductlEnvironmental Liability, supra note 3', at 5 (citing one attorney
as claiming that due to the various differences between the systems "a plaintiff's lawyer would
be open to charges of negligence if he did not consider pursuit of a claim in the U.S. courts");
Juenger, Forum Shopping, Domestic and International, 63 TULANE L. REV. 553, 572-73 (I989)
(noting that perhaps the most important factor in international forum shopping is not the
substantive law but the procedural advantages that a particular jurisdiction may offer plaintiffs).
65 American defendants - whatever the strength of their legal positions - may be unwilling
to risk the possibility of large jury awards and will therefore choose to settle. See IBA on

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If a court does exercise jurisdiction, it must apply a standard

stringent enough to provide meaningful environmental protection. In
some instances, plaintiffs may prefer to sue in the United States
because U.S. laws offer stricter standards of liability66 and U.S. courts
are more likely, under American choice-of-law rules, to select U.S.
law to govern the dispute.67 Even when the United States and the
foreign state maintain similar standards,68 U.S. courts tend to apply
standards more stringently.69
The effectiveness of extraterritorial adjudication would be signifi-
cantly reduced if judgments could not be enforced. 70 Most judgments
rendered in the United States will be easily enforced because many
polluters are U.S. citizens, have assets in the United States, or trade
with the United States. Even if the defendant corporation does not
have assets in the United States, U.S. courts can pierce the corporate
veil to ensure that judgments are satisfied by the assets of closely
related companies or corporate affiliates.71 If unilateral enforcement
within the United States proves impossible, the plaintiff may be able
to obtain enforcement of the judgment abroad.72
ProductlEnvironmental Liability, supra note 31, at 5 (noting that "any client at all involved in
an environmental incident should be advised to negotiate an exit very quickly, otherwise they
would see the transaction costs mount equally fast"). Even if the suit is ultimately dismissed,
plaintiffs may still benefit from bringing suit in U.S. courts because the court may, as a condition
of dismissal, require the defendant to submit to the jurisdiction of a foreign court. See INCON-
VENIENT FORUM AND CONVENIENT CATASTROPHE: THE BHOPAL CASE 6-8 (U. Baxi ed. I986)
[hereinafter INCONVENIENT FORUM].
66 See supra p. i613.
67 See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 247-5I, 255 (i98i); infra p. i627.
68 See McCaffrey, supra note i, at 94 (noting the similarity of United States and Canadian
environmental laws); Weinberg, Insights and Ironies: The American Bhopal Cases, 20 TEX.
INT'L L.J. 307, 309 (I986) (claiming that there are no significant differences between Indian
and American tort laws).
69 In applying foreign law based on a reasonableness standard, a U.S. court might employ
a stricter understanding of what is reasonable than a foreign court and thus would provide more
protection. Cf. Harrison v. Wyeth Laboratories, 5I0 F. Supp. I, 4, 8 (ig80) (noting that U.S.
courts may encounter difficulty using foreign standards, especially when U.S. courts employ a
world view that places a greater weight on protection in determining whether an activity is
unreasonable).
70 In the context of extraterritorial environmental regulation, courts are likely to limit the
relief they grant to monetary damages rather than injunctive relief. Injunctions are difficult to
enforce abroad, particularly judgments relating to the use of foreign land. See Vanity Fair
Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 647 (2d Cir. 1956) (refusing to enjoin activity in
another country even though the court had established personal jurisdiction over the defendant).
71 See Aronofsky, Piercing the Transnational Corporate Veil: Trends, Developments, and the
Need for Widespread Adoption of Enterprise Analysis, io N.C.J. INT'L L. & COM. REG. 31,
37-44 (I985) (discussing different cases in which the doctrines of alter ego, instrumentality, and
agency were used to reach the assets of multinationals).
72 See W. FREEDMAN, supra note 46, ? 9.9, at 129-31. Whether foreign courts enforce
judgments issued by U.S. courts may depend, in part, on how expansively the American court
has asserted jurisdiction and whether the foreign court interprets the expansiveness to have
violated norms of international comity. See id. Many states have found that the U.S. courts

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(b) Extraterritorial Legislation. - Almost any type of extraterri-

torial legislation enacted by Congress will be enforced by U.S.
courts.73 Currently, several U.S. laws govern activities conducted in
foreign territory. Some legislation, like the antitrust laws, bind all
corporations acting anywhere in the world if the corporation's actions
have a substantial effect on the U.S. market.74 Other laws, such as
the Export Administration Act,75 apply only to U.S. corporations and
their subsidiaries operating overseas.76
With increasing frequency environmentalists have been lobbying
for the enactment of environmental legislation that would apply ex-
traterritorially. Their proposals include extending the National En-
vironmental Policy Act (NEPA)77 to require environmental impact
statements to be completed for activities carried out under the auspices
of the U.S. government in foreign countries.78 The Bhopal tragedy
has prompted many environmentalists and legal commentators to ad-
vocate the enforcement of U.S. environmental regulations against for-
eign subsidiaries of U.S. multinational corporations.79 Similarly, en-
vironmentalists and politicians have also begun considering limitations
exert jurisdiction too expansively and therefore will not automatically enforce judgments ren-
dered by U.S. courts. See Smit, The Proposed United States-United Kingdom Convention on
Recognition and Enforcement of Judgments: A Prototype for the Future?, I7 VA. J. INT'L L.
443, 448 (I977).
73 The courts have adopted a canon of statutory construction under which they presume
that a rule, although normally given extraterritorial effect, will not govern when its application
would violate norms of international comity. See infra p. I630. Nonetheless, by clearly artic-
ulating its intention Congress can ensure that legislation will be applied extraterritorially even
when application will violate norms of international comity and international law. See Com-
mittee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 938-39 (D.C.
Cir. I988); G. BORN & D. WESTIN, supra note 44, at 434.
74 See, e.g., United States v. Imperial Chem. Indus., I00 F. Supp. 504, 5ii (S.D.N.Y. i95i)
(applying antitrust laws against a foreign company). Courts now require a particular application
of antitrust laws to be consistent with' norms of international comity. See Turley, supra note 5,
at 608-I3 (describing the history of extraterritorial application of antitrust laws); see also infra
note 124 (discussing the extraterritorial application of antitrust laws).
75 50 U.S.C. ?? 2401-2420 (I988).
76 The Export Administration Act prevents U.S. corporations and subsidiaries operating in
foreign countries from reexporting goods and technology that originated in the United States.
See Tittmann, Extra-Territorial Application to U.S. Export Control Laws on Foreign Subsid-
iaries of U.S. Corporations: An American Lawyer's View from Europe, i6 INT'L LAW. 730, 731-
32 (1982).
77 42 U.S.C. ?? 4321-4343 (I988).
78 See, e.g., Turley, supra note 5, at 627-34.
79 See Note, Exporting Hazardous Industries: Should American Standards Apply?, 20 INT'L
L. & POL. 777, 792 (I988); see also Paul, Comity in International Law, 32 HARV. INT'L L.J.
I, 73 (I99I) (arguing that by refusing to apply U.S. regulatory laws to foreign subsidiaries of
U.S. multinationals, courts "encourage businesses to consider noneconomic incentives that distort
investments and result in inefficiency").

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on waste shipment and the export of pesticides to developing coun-

tries. 80
3. The Proper Scope of Extratemitorial Environmental Regulation.
- Although the United States may have the power to regulate extra-
territorially it may not always be desirable for it to do so. Commen-
tators who urge regulation in particular cases have not articulated a
coherent framework for determining when the United States should
attempt extraterritorial regulation.81 Thus, they often fail to balance
the value created by environmental protection against the costs pro-
tection imposes on economic development.82 For example, some states
prefer lenient pollution standards as a method of encouraging the
development of certain industries83 and strengthening their competi-
tive advantage in those industries.84 Thus, environmental standards
may have a significant impact on the goods and jobs that a country
produces and the foreign exchange reserves that it maintains,85 and
weak environmental regimes may encourage strong economic devel-
opment. 86
Some commentators acknowledge the development needs of foreign
countries but believe that many countries fail to weigh properly the
long-term effects that environmental degradation will have on their
development prospects.87 Others justify particular types of extrater-
80 See, e.g., Gilmore, supra note 42, at 893-907 (advocating limitations on the export of
waste from the United States and detailing numerous legislative proposals designed to accomplish
this end); Comment, supra note i6, at 1035-39 (examining the calls for pesticide export restric-
tions); Note, supra note i8, at 149 (focusing on the need to curtail pesticide exports).
81 But cf. Note, supra note 5, at 1297-1305 (attempting to articulate a new, transnational
framework to govern all extraterritorial disputes and using environmental law as a model for
developing this framework).
82 For example, McCaffrey does not seriously address the conflict between economic devel-
opment strategies that would plague extraterritorial action between the United States and
Canada, countries with relatively similar levels of environmental protection. See McCaffrey,
supra note 3; cf. Cudahy, Clouds on the Horizon: Acid Rain in Domestic Courts, in COMMON
BOUNDARY/COMMON PROBLEMS 82, 85 (I982) (observing that many extraterritorial claims be-
tween the United States and Canada will require a reconciliation of divergent economic and
energy policies and therefore should be settled at a political and not judicial level).
83 See Ashford & Ayers, Policy Issues for Consideration in Transferring Technology to
Developing Countries, I2 ECOLOGY L.Q. 871, 875 (I985) (observing that industries producing
potentially hazardous products may become an integral part of the investment within a country
because they create jobs and add to capital infrastructure).
84 See J. Kalt, supra note 38, at I9 (noting that "mandated pollution abatement expenditures
have a negative impact on trade performance").
85 See Ogolla, Role of Environmental Law in Development, 29 J. INDIAN L. INST. I87, 189
(I987) (criticizing the pursuit of economic development and GNP growth at the expense of the
environment).
86 Developing countries could point to the theory that the American legal system subsidized
economic growth during the nineteenth century. See M. HORWITz, THE TRANSFORMATION OF
AMERICAN LAW, 1780-I860, at ioo-oi (1977).
87 See Ashford & Ayers, supra note 83, at 876-82.

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i624 HARVARD LAW REVIEW [Vol. 104:I484
ritorial regulation by suggesting that developing countries lack the

ability to interpret scientific evidence of environmental risks,88 that
corrupt officials often allow environmentally degrading activities
within the country solely for private gain,89 or that developing coun-
tries lack the mechanisms necessary to enforce meaningful environ-
mental regulation.90 Although these are weaknesses in developing
countries' calculations of development costs and environmental bene-
fits, commentators have failed to offer courts coherent criteria by
which these calculations should be made or procedures by which a
balance should be struck.91
B. The Need to Develop Coherent Doctrines

for Extraterritorial Environmental Regulation
Cases involving extraterritorial adjudication and legislation inevi-

tably raise conflicts between competing policy interests. The doctrines
U.S. courts have developed to reconcile these interests, however, ei-
ther fail to address explicitly the particular concerns posed by envi-
ronmental disputes or fail to provide criteria by which a court can
balance competing interests. Thus, a court determining whether ex-
traterritorial environmental regulation is justified in a particular in-
stance must often decide without appropriate information or standards
by which to weigh conflicting concerns.
i. Extraterritorial Adjudication. - United States courts deciding
whether and how to hear private international environmental disputes
must determine both what substantive law should apply to the case
and which country's forum should hear the dispute. The general
doctrines developed to decide these questions ought to be adapted to
apply to the special area of environmental torts.
(a) Choice of Law. - United States courts have the power to
adjudicate a wide range of international environmental claims because
they have broad personal jurisdiction over U.S. and foreign citizens
as well as far-reaching power to pierce the corporate veil.92 Because
88 See Comment, supra note I6, at 1045; Note, supra note 2, at 207.
89 See Gilmore, supra note 42, at 884-85.
90 See, e.g., Knickerbocker, World Opens Eyes to Environment, Christian Sci. Monitor, Mar.
23, 1990, at 6, col. 2 (noting that "India's environmental agency has just two lawyers to track
lawbreakers"); see also supra note 21 (describing some shortcomings of foreign environmental
regimes).
91 To some extent, environmentalists who claim that the foreign government has failed to
appreciate the needs of the developing country often may be unable to escape their own
preconceptions about environmental protection. They tend to undervalue the extent to which
foreign governments may have actually considered environmental protection.
92 Courts and legislatures could restrict this broad power by limiting personal jurisdiction,
see Born, Reflections on Judicial Jurisdiction in International Cases, I7 GA. J. INT'L & COMP.
L. I, 34-42 (I987), or by limiting the scope of applicable U.S. laws. The latter method would
entail preempting state law with federal law of limited scope. Cf. Note, A Question of Com-

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i99i] DEVELOPMENTS - INTERNATIONAL ENVIRONMENTAL LAW I625
many of the claims that these courts could potentially hear involve
activities in which a foreign government has a substantial policy
interest, U.S. courts have adopted choice-of-law rules intended to
reduce policy conflicts. These rules are generally tailored to a partic-
ular area of the law, such as tort or contract.93
Currently, environmental law is not treated as a distinct area under
choice-of-law rules but rather is considered under the broad rubric of
torts. 94 Three choice-of-law approaches potentially apply. One ap-
proach, lex loci delicti, applies the law of the forum in which the tort
occurred.95 A second approach, adopted by the Restatement (Second)
of Conflict of Laws96 weighs the various substantive interests that
different governments have in the activity and selects the law of the
state with the most significant policy interest.97 A third approach
permits courts to look beyond the specific policies pursued by the
states and allows courts to apply a standard which embodies the
"better law. "98 In the rare circumstances when U. S. courts have
petence: The Judicial Role in the Regulation of Pharmaceuticals, 103 HARV. L. REV. 773, 785-
go (ig90) (arguing that state tort claims for defective pharmaceutical products should be
preempted by federal regulation).
93 See E. SCOLES & P. HAY, CONFLICT OF LAWS ? 3.2, at 50-51 (I982).
94 The Restatement (Second) of Conflict of Laws does not differentiate environmental torts
from other types of torts. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS ? 145 (I97I);
see also Cooper, supra note 5, at 276. This Part argues that environmental disputes should be
treated as a distinct choice-of-law field and that presumptions should be developed that accord
with the particular policy issues raised by environmental law. Cf. E. SCOLES & P. HAY, supra
note 93, ? 2.15, at 39, ? 2.17, at 45 (arguing that choice-of-law rules should recognize recurring
fact patterns and tie governmental policies to these patterns to determine which jurisdiction's
law will apply); M. Neste, Choice of Law in Products Liability Law 12-13 (i985) (unpublished
thesis on file at the Harvard Law School Library) (recommending the removal of products
liability from the general heading of tort law for choice of law purposes).
95 See W. FREEDMAN, supra note 46, ? 7.3, at 100-03. Some versions of this approach
favor a particular environmental policy by defining the place of the tort specifically as either
the place of the injury or the place of the wrongful conduct. When the law of the place of
injury governs, the court is, in effect, favoring the environmental protection policies of that
state, whereas, when the law of the state in which the wrongful conduct took place controls,
the court is favoring the economic development policies of that state. See Canadian Delegation
to the Environment Committee of the OECD, Transfrontier Pollution (TFP): Liability and
Compensation, in LEGAL ASPECTS OF TRANSFRONTIER POLLUTION, supra note i, at 283, 297-
98.
96 See RESTATEMENT (SECOND) OF CONFLICT OF LAWS ? 6 (I97I).
97 See, e.g., In re Union Carbide Corp. Gas Plant Disaster, 634 F. Supp. 842, 862-66
(S.D.N.Y. i986) (applying the "governmental interests" test), aff'd as modified, 809 F.2d 195
(2d Cir. i987). There are several variations of this policy-sensitive approach. For example, one
variation attempts to identify the center of gravity of a particular tort. See id. at 866 (applying
the "weight of contacts" test); Babcock v. Jackson, 12 N.Y.2d 473, 48i-82, i9i N.E.2d 279,
283, 240 N.Y.S.2d 743, 749 (i963) (explaining that a grouping of contacts test will help ensure
that the laws of the state with the most significant policy interest in the tort will apply).
98 See Maguire v. Exeter & Hampton Elec. Co., 114 N.H. 589, 590, 325 A.2d 778, 779-80
(i974).

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applied this choice-of-law approach, they have identified the outcome

dictated by "sound" policy and selected the law best suited to achieve
that outcome.99
As currently employed by courts, choice-of-law rules fail to address
the particular policy issues raised by environmental disputes. The
rules that determine the law according to the location of the tort (lex
loci delicti) ignore the competing environmental and developmental
interests that arise in any particular case. 100 Although the location of
a tort may be manipulated to permit U.S. courts to apply domestic
standards in cases in which they believe extraterritorial regulation is
appropriate, the rule does not permit courts to acknowledge openly
the conflicting policy interests at stake in a given case. 101 Thus, courts
may tacitly be making policy decisions with insufficient information
concerning the relevant costs and benefits of environmental regulation.
In theory, the Second Restatement's move toward considering the
competing interests of the involved states would remedy the weak-
nesses of the locus approach.102 The Restatement, however, does not
specify how those interests are to be balanced103 and leaves courts
unable to determine which should prevail. 104 As a result, courts have
99 Although rarely used, this approach acknowledges that in some instances a judge must
choose between two laws promoting conflicting policies. Judges frequently will simply use the
open-endedness inherent in choice-of-law rules to select the laws that further their own policy
goals. See Weintraub, The Conflict of Laws Rejoins the Mainstream of Legal Reasoning (Book
Review), 65 TEX. L. REV. 2I5, 223 (I986). This choice-of-law rule has been frequently criticized
for allowing the court to usurp the power of the legislature. See id. at 225.
100 Rather, these rules presumably reflect previously established policies. To the extent that
the method for defining the site is unique to a particular type of tort, rules based on finding the
site for tort may be considered inappropriate for determining choice of law in environmental
disputes because the rules themselves ignore the various policy interests at stake in all but one
class of cases - the cases for which the rules were originally designed.
101 Parties and judges can easily manipulate the conflict of laws rule based on the site of the
tort to justify the application of a preferred law without explicitly discussing the policies behind
the choice. See R. CRAMTON, D. CURRIE & H. KAY, CONFLICT OF LAWS 58-147 (4th ed.
i987). In the Bhopal case, the policy issues surrounding the application of U.S. law were not
discussed explicitly. Rather, the characterization of the site of the tort determined the choice of
law. To many, it seemed intuitive that the accident should be governed by Indian tort law.
See In re Union Carbide, 634 F. Supp. at 866. The plaintiffs, however, attempted to charac-
terize the United States as the locus of the tort by claiming that decisions made in the company's
West Virgia offices resulted in the accident. See INCONVENIENT FORUM, supra note 65, at 290-
9i (reprinting an amicus brief filed on behalf of the plaintiffs in the Bhopal litigation).
102 See E. SCOLES & P. HAY, supra note 93, ? 2.8, at 24-25.
103 The Restatement intentionally maintained open-ended standards. See RESTATEMENT
(SECOND) OF CONFLICT OF LAWS ? 145 comment c (1971) (noting that it will often be difficult
to weigh the different policies). The Restatement envisioned that this difficulty would lessen as
case law with regard to specific fact patterns emerged and provided guidance to courts. See
id. ? i45 comment a ("It seems clear that the best way to bring precision into the field is by
attempting to state special rules for particular torts and for particular issues in tort.").
104 See Weintraub, supra note 99, at 223 (quoting Professor Hancock's conclusion that in

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i99i] DEVELOPMENTS-INTERNATIONAL ENVIRONMENTAL LAW I627
little guidance in determining which law produces an optimal policy

result. 105 Similarly, an approach that would require courts to choose
the law that would produce the "best policy outcome" does not provide
guidance as to how to weigh the competing policy concerns. 106 More-
over, U.S. courts are likely to be biased in favor of stricter U.S.
environmental laws, regardless of the law's effect on a foreign coun-
try's economic development. 107
(b) Choice of Forum. - Currently, courts treat choice of forum as
an issue that is distinct from choice of law. If the courts of two or
more states can exercise jurisdiction over the same case, U.S. courts
can decline jurisdiction to promote the fairness of the trial or to avoid
conflict with significant policy interests of a foreign sovereign.
The doctrine of forum non conveniens generally requires courts to
determine whether adjudication of a suit in a particular forum would
be inconvenient or unjust.108 Courts have frequently resorted to
forum non conveniens to dismiss international environmental suits.109
The court first examines whether an alternative forum exists.110 If
so, the court must determine whether the interests of the parties (in
conducting discovery, impleading witnesses, and actively participating
in the trial) and the interests of the court (in managing its docket,
cases of real conflicts, the judge has no criteria by which to determine the outcome of the case
and cannot decide it without choosing a particular result or looking to the law of the forum).
105 The failure to develop a special, more particularized rule for choice of law in environ-
mental torts has meant that courts tend systematically to undervalue the development interests
that foreign countries may have in a certain activity. For example, analyzing the export of
pesticides within the framework of products liability seriously underestimates the value of
pesticides to a foreign economy. To compare the export of a pesticide to the export of a Pepsi
bottle is incongruous. If the price for a Pepsi increases to include the cost of product liability
awards, the price increase probably will not significantly affect a foreign nation's economy.
Because most pesticides are thought to play an important role in the amount of food and foreign
exchange reserves available to a developing country, however, an increase in the price of
pesticides would probably be more economically significant.
106 See Weintraub, supra note 99, at 224-25.
107 See E. SCOLES & P. HAY, supra note 93, ? 17.34, at 605; Maier, Interest Balancing and
Extraterritorial Jurisdiction, 3I AM. J. COMP. L. 579, 590, 594-95 (I983).
108 See W. FREEDMAN, supra note 46, ? 1.3, at 4-II.
(S.D.N.Y. i986) (dismissing international environmental tort case on forum non conveniens
grounds), aff'd as modified, 809 F.2d 195 (2d Cir. i987); Stewart v. Dow Chem. Co., 865 F.2d
103, io6-07 (6th Cir. i989) (same). In Dow Chem. Co. v. Alfaro, 768 S.W.2d 674 (Tex. I99O),
cert. denied, iii S. Ct. 671 (iggi), the court found that Texas had statutorily abolished
of forum non conveniens in accidental death cases. Id. at 677-79. Claims growing out of the
same incident as Alfaro were dismissed in three other cases brought in other states. See Sibaja
v. Dow Chem. Co., 757 F.2d 1215, 1219 (iith Cir.), cert. denied, 474 U.S. 948 (1985); Aguilar
v. Dow Chem Co., No 86-4753 JGD #i (S.D. Cal. i987); Barrantes Cabalceta v. Standard
Fruit Co., 667 F. Supp. 833 (S.D. Fla. i987), aff'd in part and revd in part, 883 F.2d i553
(IIth Cir. i989).
110 See RESTATEMENT (SECOND) OF CONFLICT OF LAWS ? 84 comment c (1971).

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i628 HARVARD LAW REVIEW [Vol. 104:1484
applying law accurately, and hearing this type of dispute) are best
served by retaining jurisdiction.1"' The doctrine, therefore, seeks to
promote convenience to the parties and ensure the fairness of the trial.
Although the forum non conveniens doctrine appears to rest fun-
damentally on procedural, rather than substantive, considerations,
courts may exercise their discretion under this doctrine to make sub-
stantive judgments about the preferred level of environmental protec-
tion. In doing so, they may mask these judgments as determinations
about the relative fairness of the adjudicative process12 and may
thus be making substantive policy decisions without adequate infor-
mation about the relevant costs and benefits of regulation. The ap-
plication of forum non conveniens doctrine to environmental disputes,
therefore, may often be inappropriate because the decision to adju-
dicate or to dismiss should not reflect the unstated preferences of the
court but rather should follow a candid analysis of the appropriate
balance between economic development and environmental protection.
United States courts sometimes inject international comity concerns
into traditional forum non conveniens analysis in order to limit their
exercise of jurisdiction over international cases.113 Comity consider-
ations explicitly allow courts to consider the substantive policy inter-
ests of a foreign country in a particular case.114 Courts have invoked
international comity to decline jurisdiction when foreign governments
have demonstrated a strong substantive interest in an area by, for
example, enacting domestic regulations.115 Thus, comity is more fre-
quently applied in cases of public regulatory law, such as antitrust,116
than in cases of private law, such as torts.117
Mll See id. When federal courts hear international cases, forum non conveniens analysis does
not include policy considerations related to choice of law. See Piper Aircraft Co. v. Reyno, 454
U.S. 235, 247 (i98i) (holding that substantial weight should not be given to substantive law in
deciding the forum non conveniens issue); Note, Considerations of Choice of Law in the Doctrine
of Forum Non Conveniens, 74 CALIF. L. REV. 565, 565 (I986).
112 Justice Doggett, in his Alfaro concurrence, explained that courts' decisions to use (or not
use) forum non conveniens are often based on the desire to obtain a particular result that is
entirely separate from fairness concerns. See Alfaro, 768 S.W. 2d at 689 (Doggett, J., concurring);
see also Note, supra note i i i, at 567 (arguing that a substantively driven forum non conveniens
doctrine may be developing).
113 Although international comity remains a vague notion, it is often invoked by U.S. courts
in the context of international civil litigation to justify declining jurisdiction over a particular
case. See G. BoRN & D. WESTIN, supra note 44, at I4-I9.
114 See Paul, supra note 79, at 6i-63 (explaining that the balancing of competing government
interests is one function that comity serves).
115 See, e.g., Timberlane Lumber Co. v. Bank of America Nat'l Trust & Sav. Ass'n, 749
F.2d I378, I384-86 (gth Cir. i984) (examining the significant intrusion of U.S. antitrust laws
on the economic policies of Honduras), cert. denied, 472 U.S. I032 (i985).
116 See, e.g., id.
117 Comity is rarely used to dismiss cases in private international tort adjudication. See,
e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 885 (ig80) (explaining that "it is an expression of

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Because courts address environmental claims under the broader

rubric of tort law, they often draw analogies between environmental
claims and other kinds of tort actions such as product liability
claims."18 Unlike these areas of private law, however, environmental
law is highly regulated. Governments that have enacted environmen-
tal legislation necessarily have a strong substantive interest in the
regulated area.1"9 For jurisdictional purposes, environmental torts
may be more appropriately analogized to other heavily regulated areas
of public concern, such as antitrust. As a result, when deciding to
exercise jurisdiction over international environmental suits, courts
should refer explicitly to principles of comity and should not limit
themselves to forum non conveniens analysis.120
By treating all international environmental lawsuits as public law
claims, courts would simplify their choice-of-law and choice-of-forum
analysis. When hearing suits based on private law, courts may split
their inquiry into choice of forum and choice of law, thereby deciding
to exercise jurisdiction but apply foreign substantive law. In public
law cases, however, the two inquiries collapse into one, because courts
of one country will rarely apply the regulatory, public law of an-
other.121 Thus, in the area of environmental law, U.S. courts should
adopt a rebuttable presumption that environmental torts are an area
of public law and the state whose law governs the suit should exercise
jurisdiction.122 Such a presumption would ensure that foreign courts
hear those claims that should be governed by foreign law, thus guar-
anteeing that foreign and not U.S. courts conduct the cost-benefit
analysis associated with such claims.
comity to give effect to the laws of the state where the wrong occurred" and therefore the
application of foreign tort law in the United States does not violate comity).
118 Environmental cases are frequently compared to product liability for purposes of both
choice of law, see supra note I05, and for purposes of jurisdiction, see supra note 57.
(S.D.N.Y. i986) (noting the substantive interest that India had in the suit because of its extensive
environmental regulation), aff'd as modified, 809 F.2d I95 (2d Cir. i987); Harrison v. Wyeth
Laboratories, 5io F. Supp. I, 4 (E.D. Pa. I980) (dismissing a pharmaceutical product liability
suit arising from harm in Britain because the extensive British regulatory framework indicates
that regulating the pharmaceutical industry is a concern for British courts).
120 Although principles of comity incorporate concern for issues beyond conflicting govern-
ment policies, forum non conveniens wholly obscures the competing policy interests because it
focuses on issues of fairness and convenience to the parties. In the Bhopal and Alfaro litigation,
the courts' use of forum non conveniens doctrines masked a balancing of policy considerations
that would have been better treated directly under principles of international comity. See Paul,
supra note 79, at 6I-63.
121 See Hayes v. Gulf Oil Corp., 82i F.2d 285, 290 (5th Cir. I987); see also E. SCOLES &
P. HAY, supra note 93, ? 8.24, at 290-9I (explaining that courts do not apply foreign regulatory
or public law).
122 Such a presumption is contingent on the efficacy of the foreign state's legal system. For
further elaboration on rebutting this presumption, see infra p. i635.

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2. Legislation. - A case involving the extraterritorial application

of public legislation raises many of the same issues as a suit involving
a private claim, but in a case involving legislation the court examines
issues of legislative intent and reasonableness. Although U.S. courts
will not import foreign regulatory law, they may export U.S. regula-
tory law. Two canons of statutory interpretation guide the decision
to apply U.S. legislation extraterritorially. The first requires courts to
determine whether Congress intended the statute to have extraterri-
torial effect. 123 If courts find congressional intent, they then determine
whether the extraterritorial application of the law in a particular case
would violate norms of international comity.124 To make this deter-
mination, courts inquire whether the United States has the power to
legislate over the defendant'25 and whether the exercise of legislative
123 Absent a finding of legislative intent to the contrary, courts presume that Congress meant
for legislation to govern only activities carried out in U.S. territory. See Foley Bros. v. Filardo,
336 U.S. 28I, 285 (I949); G. BORN & D. WESTIN, supra note 44, at 434. The extent to which
courts require legislative intent to be clearly articulated, however, usually depends upon their
own judgments about the desirability of giving the law extraterritorial effect. For example,
despite similarly-worded legislative materials, courts have determined that Congress intended
the antifraud provisions of the Securities Exchange Act, I5 U.S.C. ? 78c(a)(I7) (I988), but not
provisions of NEPA, 42 U.S.C. ? 4332 (2)(C) (i988), to apply extraterritorially. Compare
Schoenbaum v. Firstbrook, 405 F.2d 200, 206 (finding Congressional intent for extraterritorial
application), rev'd on other grounds, 405 F.2d 2I5 (2d Cir. i968) (en banc), cert. denied, 395
U.S. 906 (i969) with Natural Resources Defense Council v. Nuclear Regulatory Comm'n, 647
F.2d I345, I366 (D.C. Cir. i98i) (finding that NEPA does not apply extraterritorially to Nuclear
Regulatory Commission export licensing decisions) and Greenpeace USA v. Stone, 748 F. Supp.
749 (D. Haw. ig90) (finding that NEPA does not apply extraterritorially to movements of United
States munitions being transported with the agreement of West Germany), appeal dismissed,
924 F.2d I75 (gth Cir. i99i). Given the courts' tendency to confine the scope of environmental
legislation, see Turley, supra note 5, at 6oi, 6I5, 628-29, any effort to strengthen an extrater-
ritorial environmental regime requires that Congress explicitly express such an intent.
124 This notion of comity was first developed in a series of antitrust cases, such as Timberlane
Lumber Co. v. Bank of America Nat'l Trust & Sav. Ass'n, 549 F.2d 597, 6I3-I5 (gth Cir.
I976), and later codified as a canon of statutory interpretation in ? 403 of the Restatement of
Foreign Relations Law. See G. BORN & D. WESTIN, supra note 44, 459-46I. To the extent
that this limitation is a canon of interpretation, courts should always apply a law extraterritorially
when Congress clearly intended this result even if extraterritorial application violates norms of
comity. See id. at 434. Although Congress could enact a law that violates principles of
international comity, courts presume that Congress did not intend to do so and will not apply
the law unless the statute cannot be given narrow interpretation that accords with deference
due to a foreign sovereign's policies. See RESTATEMENT OF FOREIGN RELATIONS LAW, supra
note 36, ? 403 comment g.
125 This power is known as prescriptive jurisdiction and accords with notions of international
comity. See RESTATEMENT OF FOREIGN RELATIONS LAW, supra note 36, ? 403 (I). The criteria
for prescriptive jurisdiction are detailed in ? 402. To the extent that nationality and territoriality
are the primary bases of jurisdiction, see id. ? 403 comment a, they are similar to the bases of
personal jurisdiction: nationality corresponds to the general jurisdiction over claims arising
against a United States citizen, see supra p. I6I8, and territoriality corresponds to specific

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power in this case would be reasonable.126 If both requirements are

satisfied, courts may apply U.S. law extraterritorially.
Once it has been determined that Congress intends legislation to
apply extraterritorially, whether a court will apply the legislation in a
particular instance turns on the same criteria that underlie the choice
of law and the international comity inquiries, that is, whether it is
reasonable for courts to apply U.S. law in a particular case.'27 In
fact, the reasonableness constraint is defined in the same manner as
the choice-of-law rule found in the Restatement (Second) of Conflicts
of Laws that balances states' relative interests in a particular suit.'28
Here, as with the Second Restatement of Conflicts of Laws, courts
have yet to develop criteria specifically suited to balance the particular
interests implicated by extraterritorial environmental regulation. 129
Thus, identifying the costs and benefits specific to environmental pro-
tection and setting forth a method by which courts can balance these
interests may help courts decide when environmental disputes should
be subject to U.S. tort law, U.S. public law, and U.S. jurisdiction.
C. A Method for Determining When

Extraterritorial Regulation Is Appropriate
In the absence of legislative guidance, courts should determine

whether to regulate extraterritorially by openly balancing the likely
effects of their actions. 130 To ensure uniform and informed balancing
personal jurisdiction because it applies to activities likely to cause harm within the forum, see
supra p. I6I9.
126 See RESTATEMENT OF FOREIGN RELATIONS LAW, supra note 36, ? 403 (2).
127 See Paul, supra note 79, at 45-47.
128 See RESTATEMENT OF FOREIGN RELATIONS LAW, supra note 36, ? 403 reporter note iO
(explaining that the criteria of reasonableness for prescriptive jurisdiction are the same as the
criteria for choice of law under the Restatement (Second) of Conflict of Laws).
129 See, e.g., Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 949-
50 (D.C. Cir. I984) (criticizing the unprincipled balancing because, due to "[t]he inherent
limitation of the Judiciary, which must weigh these issues in the limited context of adversarial
litigation, we seriously doubt whether we could adequately chart the competing problems and
priorities that inevitably define the scope of any nation's interest in a legislated remedy").
130 Many commentators and courts have expressed a distaste for judicial balancing of con-
flicting national laws, claiming that such balancing is a legislative function. See id. at 948-5I;
Paul, supra note 79, at 74-77. Currently, courts are confronted with suits calling for extrater-
ritorial environmental regulation and must decide these suits without any legislative guidance
detailing an approach in the environmental field. Ultimately, the best solution might be to enact
a special substantive law governing international disputes. See von Mehren, Special Substantive
Rules for Multistate Problems: Their Role and Significance in Contemporary Choice of Law
Methodology, 88 HARV. L. REV. 347, 358-59 (I974). For now, courts must be free to assume
this "legislative" function.

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of the interests that arise in environmental regulation, courts should

adopt a rebuttable presumption'3l that foreign environmental regu-
lations should govern activities conducted in foreign territory.132
I. Identifying Costs and Benefits. - Courts should conduct two
distinct inquiries to determine whether extraterritorial environmental
regulation is reasonable. Courts must determine the costs and benefits
associated with such regulation in terms of environmental protection
and burdens on economic development. In addition, they should
consider whether independent political and ethical values favor or
disfavor extraterritorial regulation.
The effectiveness of the United States' extraterritorial environmen-
tal regulation cannot be assumed. In some circumstances, the United
States may enhance environmental protection by forcing polluters to
internalize the costs of their pollution. In other instances, however,
a "substitution effect" may undermine the benefits of extraterritorial
regulation: those foreign polluters who escape liability in U.S. courts
may capture the market share of those firms subject to liability. For
example, by holding Dow liable for the export of hazardous pesticides
to developing countries, the Texas court in Alfaro'33 may force Dow
to internalize the costs of the environmental harm that its product can
cause, thereby increasing the cost of its product compared to foreign
competition. Significant price increases may lead to the replacement
of the Dow product with foreign products whose prices do not reflect
the costs of potential environmental liability. When foreign firms
maintain lower environmental standards, substitution might actually
result in a reduction of environmental protection. 134
131 This presumption should not be confused with the jurisdictional presumption developed
in the previous section. That presumption applies to private claims, such as tort suits, and
determines that U.S. courts should decline jurisdiction in cases governed by foreign law. See
supra p. i629. The presumption developed in this section involves the issue of determining
when foreign law should govern a dispute.
132 By selecting law according to the location of the activity, this approach becomes subject
to some of the criticisms levelled against the lex loci delicti approach. Some of the ambiguity
inherent in territorial approaches can be reduced by specifying in greater detail where the
activity occurs. See supra note 95. The presumption should locate the activity by referring to
the last action that a state could have prevented through domestic regulation applied only within
its territory. The Bhopal dispute would be placed in India because the Indian government could
have regulated the activity of the factory. The transboundary tort involved in Wyandotte clearly
occurred in Canada because the United States could not have prevented the spread of the
pollution.
133 See Dow Chem. Co. v. Alfaro, 768 S.W.2d 674 (Tex. I990), cert. denied, iii S. Ct. 67I
(I99I).
134 Some U.S. corporations maintain global standards for their manufacturing facilities and
thus use the same anti-pollution technology overseas that they develop to conform with strict
U.S. standards. See McGarity, Bhopal and the Export of Hazardous Technologies, TEX. INT'L
L.J. 333, 338 (i986) (noting that the Union Carbide plant in India probably had the same design
as U.S. plants). As a result, facilities run by these corporations normally emit less pollution

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The benefits of stronger environmental protection must be weighed

against the constraints that regulation will impose on economic de-
velopment. In weighing costs and benefits courts should distinguish
between economic growth and economic development. GNP and for-
eign exchange measure only economic growth, whereas development
includes not only aggregate growth, but also the manner in which the
benefits of that growth are distributed. 135 Economic growth and the
distribution of its fruits are merely means of improving the quality of
human existence.136 Focusing on the purely economic costs of envi-
ronmental regulation may fail to capture the true costs the regulation
places on development. 137
Regardless of whether U.S. regulatory efforts are desirable as en-
vironmental policy, the decision to intervene may be influenced by
ethical and political considerations. 138 For example, the United States
prohibits the export of certain highly concentrated polychlorinated
biphenyls (PCBs). 139 Supporters of this type of action frequently argue
that even if this ban fails because PCBs are being acquired from
foreign suppliers, the ban at least satisfies the United States ethical
interest in not being directly responsible for the PCB-related environ-
mental harm. 140 Courts, however, often confuse these values with the
and better protect against accidents than do facilities controlled by many foreign firms. Interview
with Pei-Tse Wu, Chemical Section Editor of the Journal of Commerce (Mar. 5, 199I).
In one instance of detrimental substitution, a U.S. paper firm contracted with the government
of a developing country to harvest a forest in that country. The foreign government imposed
minimal standards on the U.S. company. The company, however, had planned to use more
stringent harvest procedures than required, which would have involved not cutting a certain
amount of trees in order to preserve the environment and to allow for the re-growth of the
forest. Due to consumer pressure in the United States, the firm decided not to pursue the
project. The foreign government subsequently contracted with local firms that intended simply
to raze the forest. See A. Stern, The Fate of the Forest (forthcoming 69 HARV. Bus. REv.
(i99i)); Interview with Alissa J. Stern (Mar. 22, I991).
135 For example, curtailing the use of pesticides might reduce GNP by reducing the output
of cash crops (such as cotton) destined for export but may help overall development by encour-
aging the planting of food crops that help avert starvation among subsistence farmers at home.
See Note, supra note i8, at I33.
136 Indeed, some commentators have argued that environmental protection is a necessary
component of development because the concept of development incorporates concern for the
quality of human existence, not just the aggregate wealth of a nation. See, e.g., Defries, supra
note 29, at 54.
137 See Ashford & Ayers, supra note 83, at 879.
138 Of course, these considerations do not simply indicate that extraterritorial regulation is
desirable. They can just as readily justify not extending protection.
139 See Comment, U.S. Controls on International Disposal of Hazardous Waste, 22 INT'L
LAW. 775, 783 (I988).
140 See Note, supra note i8, at 129-30 (outlining the different morally based approaches to
intervention). But cf. In re Union Carbide Corp. Gas Plant Disaster, 634 F. Supp. 842, 867
(S.D.N.Y i986) (stating that intervention would be an intrusive and patently paternalistic
imposition, especially since India has just emerged from its colonial past), aff'd as modified, 809
F.2d I95 (2d Cir. i987).

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more tangible costs and benefits of environmental regulation rather

than considering them as one of several equally valid factors. 141
2. Weighing the Costs and Benefits. - Case-by-case calculation of
the costs and benefits of extraterritorial environmental regulation
would be time-consuming, expensive, and wasteful; it would require
a greater level of expertise and more resources than are available to
courts. In particular, it may be difficult for a U.S. court to assess the
burdens environmental regulation imposes on a foreign nation's de-
velopment. United States courts, however, need not make these de-
terminations because foreign governments, in formulating their own
environmental regulations, have already determined the optimal bal-
ance between development and environmental protection. 142 Foreign
governments are likely to make their decisions on the basis of more
complete information and are likely to be more sensitive to local
economic, political, and social conditions than U.S. judges. Thus,
the balance reached by a foreign government best reflects the entire
range of relevant costs and benefits.
In addition to the jurisdictional presumption developed in section
B, in which U.S. courts would decline jurisdiction over a case gov-
erned by foreign environmental law, U.S. courts should adopt a re-
buttable presumption that foreign regulations governing environmen-
tally harmful activities embody the appropriate balance between costs
and benefits. Under this regime, U.S. courts should initially refrain
from applying domestic law extraterritorially when a foreign regula-
tory standard exists. They would instead assume that the existence
of a foreign regulatory standard demonstrates the foreign government's
interest in the policy area in question and that the foreign standard
embodies the best environmental policy to apply. The foreign gov-
ernment need not calculate its interests "correctly" for such a pre-
sumption to be valuable. In many cases, in fact, the foreign regulation
may not be the best policy because it is the product of inadequate
analysis,143 corruption, 144 or insufficient information. 145 The pre-
sumption may still be valuable, however, to the extent that it provides
a basis from which to focus discussion on the relevant costs and
benefits. 146 The presumption requires plaintiffs to justify any e
141 See Dow Chem. Corp. v. Alfaro, 786 S.W.2d 674, 688-89 (Tex. I990) (Doggett, J.,
concurring) (ignoring development concerns and confusing effective environmental protection
with the goal of reducing the moral double standard in United States pesticide exports), cert.
denied, iii S. Ct. 67I (I99I).
142 Ogolla, supra note 85, at I99 (observing that developing countries are increasingly weigh
ing developmental and environmental needs and are establishing clearer environmental stan-
dards).
146 The goal of the presumption is procedural, not substantive. It merely focuses the dis-

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territorial application of U.S. standards by providing information ex-

plicitly concerning the need for the extension, the likely effectiveness
of such action, and the ramifications -the action will have for environ-
mental protection and economic development. Any subsequent deci-
sion regarding intervention will thus be better informed.
A party could rebut the presumption that foreign law would apply
or the presumption that U.S. courts should decline jurisdiction when
foreign law governs a dispute either by showing that deference would
not promote sound environmental policy or by demonstrating that
independent considerations of fairness and moral foreign policy rec-
ommend retaining jurisdiction. Shifting the presumption on the basis
of sound environmental policy would require a two-step inquiry. The
first inquiry should focus on whether the foreign regime promotes
sound environmental policy. In this inquiry the court will examine
either the foreign state's environmental standard or the ability of its
courts to enforce this standard. A party could show that the standard
poses an unreasonable risk to the environment.147 Even when the
foreign regulatory standard embodies sound policy, the plaintiff could
demonstrate that the foreign government is incapable of enforcing its
standards. 148 If, for example, foreign plaintiffs have no meaningful
redress for environmental injuries, U.S. courts may retain the case to
protect the environment. 149 Second, when deference to a foreign
environmental regime provides insufficient environmental protection,
the court still should examine whether unilateral action by U.S. courts
will effectively correct the deficiency in the foreign regime. In partic-
ular, the court should examine whether a substitution effect will un-
dermine the presumed benefits of extraterritorial environmental reg-
ulation.
Alternatively, a party may shift the presumption by demonstrating
that retention will further U.S. goals of fairness and moral foreign
policy. 150 For example, as mentioned above, even if foreign states
will not ban the export of PCBs, thereby rendering unilateral action
ineffective, the United States may decide to prevent the export of
PCBs because it refuses to contribute to the environmental harm that
these cause. A court will have to consider, however, whether such a
ban is justified as moral foreign policy or is really an instance of
cussion on the efficacy of regulation as environmental policy and the political desirability of
extending U.S. regulations extraterritorially.
147 Thus, the plaintiff would be shifting the presumption that the foreign law embodies the
best environmental policy.
148 See Note, Jurisdiction by Necessity: Examining One Proposal for Unbaring the Doors
of Our Courts, 2I VAND. J. TRANSNAT'L L. 401, 414-15 (I988).
149 Thus, the plaintiff would be shifting the presumption against retaining jurisdiction when
foreign law should govern the dispute.
1'O See, e.g., supra pp. I633-34.

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i636 HARVARD LAW RE VIEW [Vol. I04:I484
unwanted paternalism and will be perceived by the foreign country

as U.S. imperialism.
3. Applying the Presumption - The following hypotheticals dem-
onstrate how a presumption against extraterritorial regulation will help
focus courts' analysis on the most important policy issues raised by
environmental regulation. Courts will focus their inquiries on the
efficacy of a foreign state's environmental regime and on the ability
of U.S. courts to improve environmental protection through unilateral
action. In addition, courts will separately consider values that may
justify extending U.S. standards extraterritorially or retaining juris-
diction.
Case i: A U.S. corporation exports a hazardous product to a
developing country. The product meets the country's environmental
standards but causes an environmental disaster. Injured plaintiffs sue
in the United States. In this case, there would be a presumption in
favor of the U.S. court declining jurisdiction based on the existence
of a foreign regulatory standard. That presumption may be rebutted,
however, because the disastrous harm caused by the product suggests
that the cost-benefit analysis embodied in the foreign country's regu-
latory laws may undervalue environmental protection. The burden
rests on the plaintiffs to prove that the foreign regulatory standard
poses an unreasonable risk to the environment.
If the court determines that the developing country's regulatory
standard is unreasonable - and therefore exercises jurisdiction - it
then must determine whether extraterritorial regulation would be ef-
fective and, if so, which country's tort standard to apply. Given the
difficulty U.S. courts may have in identifying -foreign liability stan-
dards,151 they may choose to apply U.S. tort law.
Case 2: A U.S. corporation's activities in a foreign country violate
foreign regulatory standards, but the plaintiffs are unable to redress
their grievances locally. Here, the presumption against jurisdiction
may be rebutted by the fact that the plaintiffs were denied a remedy,
despite the defendant's violation of the standard. This scenario sug-
gests that the foreign country's legal system cannot fairly compensate
injured plaintiffs and does not effectively enforce its environmental
standards. If the court were to determine that extraterritorial regu-
lation - in the form of access for plaintiffs to the U.S. court system
- would be effective, it may exercise jurisdiction and apply the
foreign regulatory standard.
151 Liability under tort often arises only when an activity is unreasonable. In an attempt to
understand a foreign country's understanding of reasonableness, a U.S. court might want to
examine foreign regulatory standards. If these standards have not been violated, the activity is
presumptively reasonable. A U.S. court would encounter difficulty in identifying finer gradations
of reasonableness without simply imposing American standards of care and conceptions of
reasonableness.

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Case 3: A U.S. corporation sells a nuclear reactor to a foreign

country with a well-developed legal system. The reactor meets foreign
standards, but an environmental group sues in the United States,
claiming that the defendant violated U.S. nuclear safety legislation.
Even if Congress intended the legislation to apply abroad, the U.S.
court must determine whether in this instance exercising jurisdiction
would be reasonable under principles of international comity. Given
the existence of a foreign regulatory standard, the U.S. corporation's
compliance with that standard, and the availability of legal recourse
in the foreign country, the court may exercise extraterritorial jurisdic-
tion only if the plaintiffs show that the foreign standard itself is
unreasonable. If the plaintiffs successfully bear this burden, a court
deciding whether to retain jurisdiction could also consider the ethical
interests in regulation, notwithstanding the efficacy of the foreign
country's regulatory efforts.
4. Approaching the Question of a Reasonable Environmental Re-
gime. - Although a presumption in favor of a foreign government's
regulations may help focus attention on the policy considerations
unique to extraterritorial environmental regulation, it cannot ensure
that courts will uniformly agree when the presumption should stand.
Inquiries into reasonableness and effectiveness are bound to rely on
indeterminate standards and will often degenerate into a choice be-
tween more environmental protection or more economic development.
In some instances, these competing interests can be reconciled because
declining jurisdiction strengthens the foreign country's environmental
regime and at the same time broadens its understanding of economic
development.
Deference to a foreign country's environmental regime might ac-
tually help improve the system for global environmental protection in
the long run. When U.S. courts engage in extraterritorial regulation
they may, in many instances, discourage the development of regulatory
regimes in foreign countries. The Bhopal tragedy illustrates this point.
India's legal system was not prepared to handle litigation of complex
environmental torts of the sort ensuing from the disaster. It lacked
contingency fee attorneys, the power to implead necessary defendants,
broad discovery rules, and a formal class action mechanism.152 In
addition, because so few tort cases had previously been brought in
India, some uncertainty surrounded the liability standards that Indian
courts would apply; India did not clearly embrace either a negligence
standard or a more rigorous strict liability standard for ultrahazardous
activities.153 Since the accident, the Indian government has enacted
152 See Galanter, supra note 32, at 273-80 (outlining these and various other weaknesses
that might limit the chances for recovery in India).
153 See INCONVENIENT FORUM, supra note 65, at 21 (claiming that the U.S. district court
erroneously assumed that strict liability had been adopted in India).

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measures to increase access to the Indian court system. For example,

if a plaintiff is indigent the government may set aside the usual
requirement that a tort plaintiff pay a tax for bringing suit.154 Ad-
ditionally, Indian attorneys filed a suit that amounted to a class action,
a device rarely used in India. 155 Such innovation seemed to stop once
the case was consolidated in U.S. courts and resumed only after the
U.S. court eventually dismissed the suit on forum non conveniens
grounds. Soon after the dismissal, the Supreme Court of India an-
nounced a strict liability standard to govern torts involving ultrahaz-
ardous activities.156 The Indian tort system probably would have not
undergone such an evolution had the United States reduced the pres-
sure for change by intervening more aggressively.
The Bhopal litigation also suggests that the type of case most likely
to inspire U.S. intervention - one involving a large American mul-
tinational corporation - is precisely the type of case that might
prompt the strengthening of the foreign environmental regime. Do-
mestic political pressure to ensure a recovery against a foreign mul-
tinational may force rapid change in the legal system of a country
that does not provide an adequate remedy.157 Thus, the Bhopal
tragedy may have prompted India to reconsider the balance between
environmental protection and economic development in its system and
may have encouraged the development of a stronger legal regime that
protects the environment against both Indian and U.S. polluters.158
D. Conclusion
Because the public international legal system is of only limited

effectiveness in encouraging sovereign states to improve their environ-
mental regimes, extraterritorial regulation by states with strong envi-
ronmental regimes may seem intuitively useful. Nations such as the
United States, however, may find it difficult to regulate extraterrito-
rially in a manner that is sensitive to the costs and benefits faced by
foreign countries. Even if environmental preservation were the only
interest at stake, extraterritorial regulation by the United States would
not always be desirable. Not only may unilateral action be under-
154 See Dheavan, For Whom? And for What? Reflections on the Legal Aftermath of Bh
20 TEX. INT'L L.J. 295, 300 (1985).
155 See Galanter, supra note 32, at 287 n.77.
156 See M.C. Mehta v. India, i S.C.R. 8i9, 842-44 (i986).
157 See, e.g., Galanter, supra note 32, at 28i (observing that an outraged public in India
demanded that Union Carbide be held liable for the Bhopal tragedy).
158 For example, one year after the Bhopal accident, India adopted a comprehensive envi-
ronmental protection act. See Rao & Sumitra, supra note 2i, at 21-22. Similarly, the Bhopal
accident also sparked calls for India to adopt legislation requiring environmental impact state-
ments similar to those used in the United States. See Leelakrishan, Towards a Better Regime
of Environment, COCHIN U.L. REv. 329, 345 (I987).

202.190.66.222 on Mon, 31 Jul 2023 08:18:24 +00:00
mined by substitution effects, but such action may also discourage

foreign countries from further developing their own regulatory re-
gimes.159 To the extent that extraterritorial environmental regulation
supplements the contribution of public international law to environ-
mental protection, it would be a welcome interim development. The
ultimate goal, however, must remain the development and strength-
ening of each state's own regulatory regime. 160
159 The emerging environmental systems in developing countries need not always follow the
United States model. See Galanter, supra note 32, at 293-94. In some instances, foreign
governments could incorporate the protections of the stronger environmental systems into their
domestic protections. For example, India could circumvent the presumption of territoriality in
U.S. courts by requiring - either by contract as a joint venture partner or through its foreign
investment law - U.S. corporations to agree to suit in U.S. courts. Other alternatives, such
as requiring submission to an international arbitration board, may prove more useful. Cf. Stein,
The Settlement of Environmental Disputes: Towards a System of Flexible Dispute Settlement,
I2 SYRACUSE J. INT'L L. & COM. 283, 296 (I985) (encouraging the use of structured negotiations
in the Bhopal case).
160 See, e.g., Ashford & Ayers, supra note 83, at 89I-900 (outlining ways that more develop
nations, such as the United States, could help foreign countries develop better environmental
policies); A Cool Look at Hot Air, ECONOMIST, June i6, I990, at I7 (noting that Sweden and
other countries have abandoned the idea of suing Eastern European polluters and are instead
providing pollution-reducing technology).

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DevelopmentsLawInternational 1991

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Developments in the Law: International Environmental Law

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INTERNATIONAL ENVIRONMENTAL LAW

"Perhaps it is the collective menaces,

UNITED NATIONS SECRETARY GENERAL U THANT

"Of all possible worlds, we only got one

THE GRATEFUL DEAD

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I. INTRODUCTION ............................................................ I487

III. THE CREATION OF INTERNATIONAL ENVIRONMENTAL AGREEMENTS ......... ... I52I

V. INSTITUTIONAL ARRANGEMENTS . . . .580

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C. Facilitating Coordination ..................... .......................... I593

VI. EXTRATERRITORIAL ENVIRONMENTAL REGULATION ...... .................. . I609

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Recent events have dramatically reminded the world that environ-

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calculable dangers to human survival. The recent discovery of an

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17 See Conference on Environment and Development '92 - Preparatory Process, 20 ENVTL.

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to what degree international law and institutions can overcome two

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Part IV addresses the problems states confront in enforcing inter-

25 5 U.S.C. ?? 55I-706 (I988).

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ment and development and proposes an alternative method to mediate

II. STATE LIABILITY AND PROCEDURAL NORMS

Pollution respects no jurisdictional boundaries. Air and water

1 One commentator defines transfrontier pollution as those "disturbances that originate in

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as these duties are furnished with more determinate content, they

6 See, e.g., A. SPRINGER, THE INTERNATIONAL LAW OF POLLUTION I42 (I983).

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A. State Attribution and Breach of Duty

To invoke state responsibility for extraterritorial pollution, the

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Even ultra vires acts17 may be attributed to the state,18

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pollution.22 For example, when a state fails to enact adequate envi-

Under the principles of international law, . . . no State has the right

22 See Dupuy, International Liability for Transfrontier Pollution, in TRENDS IN ENVIRON-

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properties of persons therein, when the case is of serious consequence

A few subsequent decisions by international courts and tribunals

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nificant] damage to the environment of other states" or the environ-

B. The Stillborn Regime of International Liability

The last two decades have witnessed the proliferation of scholarly

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practices, general principles of law, treaties, charters, and interna-

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of conduct notwithstanding, international liability remains an empty

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bunal determined Canadian responsibility from the terms of a

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unless they believe beforehand that they will prevail. In particular,

59 See DuPuy, L'Affaire des essais nucleaires francais et le contentieux de la responsabilite

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interest to satisfy standing requirements under international law.64

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