Increasing Specialisation

There are currently over 500 international treaties and other agreements relating to the environment. Within many of these multilateral environ-mental agreements, law-making is continuously undertaken, and on aver-age 300 days per year are spent in intergovernmental negotiations to fur-ther develop and enhance the implementation of international environ-mental law. As a result, international regimes have become increasingly specialised. A growing number of soft law instruments and, exceptionally, of new treaties (mostly in the forms of protocols) are adopted, while the practice of monitoring or managing subsidiary institutions is increased.

The ultimate goal is to see to the development of more targeted approach-es to global environmental challengapproach-es, and identifying new and emerging environmental threats. Notwithstanding the form and legal force of these developments, they all contribute to more sophisticated and unprecedent-ed legal and quasi-legal approaches to environmental protection and man-agement.

Consequently, there remain fewer and fewer generalist international environmental lawyers, while the number of specialists is on the rise: in-ternational climate lawyers, inin-ternational biodiversity lawyers, and inter-national chemicals lawyers, to name but a few examples. And within each category, further specialisations are developing: in the case of climate law, lawyers specialising in emission trading, the Clean Development Mechanism, or Reducing Emissions from Deforestation and Degradation;

or in the case of international biodiversity law, lawyers specialising in conservation, biosafety, or access and benefit-sharing. The need for a broader understanding and a comparison of different international envi-ronmental regimes, and their mutual interactions, is, however, not dimin-ished. But it has become a team effort rather than a task for an individual

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expert, in order to garner and build upon in-depth understanding of the specificities of, and specialist legal solutions within, each international environmental (sub)regime.

“Global” environmental law is thus a concept that can capture the increasing interactions and reciprocal influences between different re-gimes of international regulation, which have in common the focus on is-sues of common interest to humanity as a whole. This common trait led to a shift from a discretionary to a functional role of States (as protectors of the common interest of humanity) that is visible, but emerges in different forms, across multilateral environmental agreements. As a result, individ-uals and groups are identified as “beneficiaries” (not as “addressees”) of international environmental law: that is, international environmental law

“formally addresses States” but it assumes a global dimension in crucially

“affect[ing] States and individuals and groups in society”.¹ For instance, under the Convention on Biological Diversity (CBD), institutional prolif-eration has resulted in a continuous and evolving interpretation of the Convention text, through the development of thematic and crosscutting programmes of work, and the adoption of guidelines and principles aimed not only at affecting national implementation, often through reforms of national laws and administrative practices, but also at influencing the conduct of private operators, particularly in their relationships with indig-enous and local communities.

“Global” environmental law also calls attention to the increasing role of international organisations in the making and implementing of in-ternational environmental law. Inin-ternational institutions have become more and more significant players in setting the international agenda, in-fluencing intergovernmental negotiations with expertise and administra-tive services, monitoring and guiding the conduct of States in implement-ing and complyimplement-ing with international instruments, and interactimplement-ing with non-State actors and occasionally directly influencing private behaviour.

A glaring example is provided by the Convention on International Trade in Endangered Species (CITES) and its National Legislation Project, which has enabled the CITES Secretariat in the absence of an explicit ba-sis in the Convention to determine whether State Parties’ national

1 See Ellen Hey, “Global Environmental Law and Global Institutions: A System Lack-ing ‘Good Process’”, in R. Pierik and W. Werner (eds.), Cosmopolitanism in Context:

Perspectives from International Law and Political Theory, Cambridge University Press, 2010, p. 45.

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tion adequately implements CITES. The project has increased the CITES Secretariat’s work in assisting countries in developing or revising their implementing legislation, both at the international level through the in-volvement of CITES parties in the Convention’s relevant subsidiary bod-ies, but also through on-the-ground workshops, projects, and expert mis-sions. As highlighted by Ellen Hey, among the questions that emerge in connection with this dimension of global environmental law is that of the accountability of international organisations.

3. Globalisation

These on-going and increasingly specialised developments at the interna-tional level are paralleled by continuous efforts in the development and implementation of environmental law at the European, regional, national and sub-national levels. This leads to the creation of complex interactions and cross-fertilisation between different levels of environmental regula-tion, and between different specialised areas of environmental law. These multi-directional interactions are also captured by global environmental law, which refers to the promotion of environmental protection as a global public good through a multitude of legal mechanisms, relying on a plu-rality of legal orders.

Global environmental law thus places international environmental law in the context of interactions between a plurality of legal orders and creative patterns of interplay between international, national and local regulation. In that regard, global environmental law reflects the contem-porary presence of international, national and transnational traits of envi-ronmental law and the contributions of a variety of international, transla-tional, national and sub-national actors to environmental regulatory sys-tems. It underscores the increasing regulatory influences exercised not on-ly by international organisations, but also by transnational networks of experts providing legislative advice in the context of development aid, and other forms of international technical cooperation provided by non-governmental organisations (NGOs), and involving indigenous and local communities and private actors.

As Young and Percival illustrate, global environmental law can be seen as the result of transplantation: the borrowing of legal principles and tools from the national by the international level, in addition to the adapta-tion of legal principles and tools from one country to another. It can also result from convergence, that is, the spontaneous similarities in legal

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sponses between different countries to similar external pressures and the linking of national systems. This can be explained by the growing con-straints imposed upon States by international environmental law and the expectations international environmental law creates in terms of imple-mentation by private entities.

Innovative instruments that quintessentially embody global envi-ronmental law are the ‘biocultural community protocols’, developed through a bottom-up approach. Through such protocols, indigenous or lo-cal communities articulate their values and customary laws, relating to its traditional knowledge and natural resources, against the background of in-ternational environmental law. These protocols therefore are an attempt to use international law in a national context, in order to support the local manifestation of the right to self-determination. Community protocols are the product of international and transnational networks of experts com-prising State and non-State entities: they have already been developed through the involvement of networks of NGOs, intergovernmental organi-sations (the UN Environment Programme), and bilateral donors, with a view to prepare communities before engaging in contractual negotiations with private entities. A recent international environmental treaty, the 2010 Nagoya Protocol on Access and Benefit-Sharing under the CBD, specifi-cally recognises this innovative instrument and requires State Parties to support the development of such protocols by indigenous and local com-munities. This is quite significant, as parties to the Nagoya Protocol are specifically called upon to respect the customary laws of indigenous and local communities at all levels of implementation of their international ob-ligations. The Nagoya Protocol also provides for other avenues for bot-tom-up inputs into the international legal regime on access and benefit-sharing. For instance, it encourages the use of model contracts and codes of conduct to allow different groups of stakeholders and different sectors to experiment with more specific approaches to the implementation of in-ternational law. As a complement, it calls upon the protocol governing body to take stock of these stakeholder-led developments, thereby creat-ing a formal opportunity for the international community to learn from experiences on the ground, and possibly insert some of the lessons learned and successful ideas into the international regulatory system.

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