EMERGING TRENDS IN

INTERNATIONAL ENVIRONMENTAL
LAW
 1. Developments in customary international law relating
to the environment
There is increasing maturity, borne in part of experimentation and innovation, in the
content of international environmental law. Developments in customary international
law have been important sub-disciplines of international environmental
law, such as international law governing watercourses.

2. Crystallization of principles of international environmental law

The legal status of some of these principles, such as the principle of sustainable development, has crystallized, while that of others, such as the precautionary principle, remains in the process of crystallization. More broadly, there is a growing realization that the formal legal status of these principles is less critical than their operational significance.

3. Expansion in the legal tool-kit

Although far fewer multilateral environmental treaties were negotiated in the last
decade than previous decades, the ones that have, mark a step change from the earlier
generation of such treaties in several respects. States have begun to experiment with
a wider range of regulatory instruments, including market-based ones, that embrace ‘flexible market forces rather than legal coercion’ under these treaties.
C. Shifting Focus of International Environmental Law

1. Facilitative and catalytic

2. Procedural ‘turn’

3. Greater deference to national sovereignty, circumstances,

and capacities

4. Tailored and nuanced differentiation

5. Increased reliance on soft law

6. Treaty-making to treaty interpretation and implementation

EMERGING TRENDS IN
INTERNATIONAL ENVIRONMENTAL
LAW
1. Facilitative and catalytic
Environmental treaties have begun to focus on identifying objectives rather than prescribing how states are to
achieve them. Instruments negotiated in the last decade, notably the 2013 Minamata Convention on Mercury and
the 2015 Paris Agreement, identify goals, and provide a menu of regulatory options, but are facilitative and
catalytic rather than ‘top down’ and prescriptive, as many earlier instruments were.

2. Procedural ‘turn’

The Paris Agreement creates a web of inter-locking procedural commitments requiring states to submit
‘Nationally Determined Contributions’(NDCs) to address climate change, as well as detailed information,
subject to expert review, to clarify these contributions as well as to track the conduct of states in achieving
their NDCs. It does not, deliberately, create substantive obligations of result in relation to NDCs
3. Greater deference to national sovereignty, circumstances,
and capacities
That the lack of political will for a substantive standard-setting role for international environmental
law, may, at least in part, explain the turn to procedure in international environmental law is
supported by yet another general trend in recent international environmental instruments, namely,
that of greater deference to national sovereignty, circumstances, and capacities.

4. Tailored and nuanced differentiation

Recent international environmental instruments, in keeping with shifting geopolitics, indicate

increasing parity between states in terms of duties, as well as greater complexity in the form and
amount of distinction between and among poor and rich nations.
5. Increased reliance on soft law

This is most evident in the Paris Agreement, the provisions of which blur the boundaries of law, soft
law, and non-law, and between all of which there is dynamic interplay. More generally, soft law,
at the core of international environmental law from the start has further consolidated its hold on
international environmental law.

6. Treaty-making to treaty interpretation and implementation

Some regional treaty-making activity has also been evident, including the conclusion of the Escaz
Agreement and the ongoing development of environmental protection rules within the European
Union (EU). Regional treaties, such as the 1992 UNECE (UN Economic Commission for Europe)
Convention on the Protection and Use of Transboundary Watercourses and International Lakes
(Helsinki Water Convention) have also expanded their potential reach by allowing accession by
parties outside the region.
D. Increasing Resort to International Courts and Tribunals
In line with the increasing expansion and proliferation of international environmental organizations, The turn of the century signaled the start of a
EMERGING TRENDS IN
period of rapid expansion in the legal profession. International environmental law is becoming judicialized. International courts and tribunals,

INTERNATIONAL ENVIRONMENTAL
especially in the last two decades, have played an important role in the development of international environmental law by providing authoritative
articulations of rules and principles, and in identifying standards and expectations associated with these rules and principles.

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E. Enhanced Decentralization and the Emergence of

Polycentric Governance
The number of actors, projects, and networks has increased dramatically during the previous decade.
International environmental law, both between and within governments. The business community,
including multinational corporations, banks, investors, and insurers, is more deeply and constructively
engaged in international environmental law than at any period in the past. Non-state and sub-national actors
are both active participants in shaping international environmental regulation, and effective vehicles for its
implementation.
Thank you for
listening!