Global Environmental Change and International Law: Prospects for Progress in the Legal Order

Global Environmental Change and International Law: Prospects for Progress in the Legal Order

by Lynne M. Jurgielewicz

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This is one of the few books dealing with regime theory to be written from a legal point of view. Jurgielewicz's book is part of an effort to promote interdisciplinary research on the nature of the international legal order. Her work explores the concept of international regimes within the international legal order, utilizing the policy-oriented approach to


This is one of the few books dealing with regime theory to be written from a legal point of view. Jurgielewicz's book is part of an effort to promote interdisciplinary research on the nature of the international legal order. Her work explores the concept of international regimes within the international legal order, utilizing the policy-oriented approach to international law. The study uses examples of global environmental change as models. By examining the general international law applicable to climate change and ozone layer depletion, the author attempts to explain the original need for regime formation in these areas. Next, Jurgielewicz looks at the role of regimes within international law, focusing on their formation, maintenance, source of legal obligation, and compliance mechanisms. The book concludes that regimes are present within the international legal order and play a vital role in maintaining that order. This book will appeal to students in law schools, graduate schools, or advanced undergraduate seminars covering international relations, international legal theory, international law, and international organizations.

Editorial Reviews

International Environmental Affairs
...provides a useful introduction to the problems of coping with ozone depletion and climate change...the juxtoposition of regime analysis and the New Haven School of jurisprudence is an interesting move.
The Law and Politics Book Review
...a good book...
Law And The Politics Book Review
"...a good book..."
Anthony Patt
Lynne Jurgielewicz has written a good book. She attempts to bring together theories from international law, public policy, and international relations, to examine what frameworks exist for the regulation of stratospheric ozone depletion climate change. It is a difficult undertaking. The difficulties stem primarily from the general lack of international environmental law. Finding principles that create binding rules for global environmental change is a bit like pulling blood from a stone. International law has many sources, none of which applies very well to global environmental change, especially climate change. The first source is international conventions or treaties. In the case of stratospheric ozone depletion, the Montreal Protocol does give some basis for law, and its rules are well spelled out. In the case of climate change, while there is the Framework Convention for Climate Change (FCCC), nations have yet to set binding emissions limits. Therefore, this source of international law provides little help. The second source is customary law. Customary law "results from a general and consistent practice of states followed by them from a sense of legal obligation." (p. 38). One would be hard pressed, however, to cite customary law as a source applicable either to ozone depletion or to climate change; the history of international or national concern over these issues is so short that few if any states would have an applicable set of customs. The third source is general principles of law. This is like natural law, applicable to acts such as genocide, which are unambiguously wrong. Unfortunately, the practices and beliefs encompassing global environmental change are ambiguous at best. The next source is the collection of national and international legal opinions, as expressed either by judges or by scholars. In the case of global environmental change, no judicial decisions exist, and the range of academic opinions too wide to be of any use. Finally, Jurgielewicz cites soft law. As the term implies, this is difficult to define: it could be non-binding resolutions, bilateral treaties, or "statements prepared by individuals in a non-governmental capacity." (p. 45). Soft law, of course, is non-binding, although over time it can take on the form of more binding customary law. Jurgielewicz also cites a number of sources of law that might apply to global environmental change in particular. The first is prevention of environmental harm, the primary legal precedent for which is the Trail Smelter case. In that case, a Canadian smelter located near the United States border was causing unambiguous cross-border harm. The principle that "the victim has to wait for the harm to be done before he can take action" (p. 53) did therefore pose no problem. In the case of global environmental change, by contrast, the requirement of waiting would be fatal to any effective, proactive regulation of behavior. Jurgielewicz cites the principle of international cooperation to protect the environment as a potential source of liability. Under this principle, states would have certain duties, of which the failure to perform could result in liability. One duty is to inform of harm being done. Another is to consult with potential victims of the behavior, prior to undertaking it. A final duty is to assess. None of these duties means much in the context of global environmental change: everyone is informing each other, everyone is a victim, and everyone is assessing. But still change is occurring. Finally, Jurgielewicz cites some new concepts in international law. These are the precautionary principle, the principle of intergenerational equity, the principle of respecting common or shared resources, and the polluter pays principle. Unfortunately none of these has any teeth when it comes to an issue, such as climate change, fraught with uncertainty and diverse arrays of costs and benefits. In short, then, both the traditional sources and the new directions of international law offer little in the way of binding obligation of states’ behavior. Against this backdrop of the limited applicability of international law, Jurgielewicz presents regime theory as a "middle ground" (p. 97) between anarchy and world order. First, she discusses the general definition of regimes. Unfortunately, the definition appears somewhat tautological: a regime is that which brings order, at some level of middle ground between world order and anarchy. If a functionalist definition comes up short, a structuralist one does better. Generally, regimes come about through international communication, agreement, or expectations that do not otherwise rise to level of being a source of international law. If they are to be effective, regimes must provide some mechanism for enforcement of their rules, procedures for the evolution of those rules, and dispute settlement mechanisms. Trustworthy regimes have some level of accountability and transparency, and give states the ability to exclude non-compilers from the benefits of membership. Jurgielewicz examines some of the critical regime issues applicable to global environmental change. These include the ability of regimes to cope with—and overcome—scientific, economic, and development uncertainty. A critical catalyst for the formation of regimes is the leadership of one or more states or non-state organizations, such as an NGO or an IGO. For a regime to be effective, it must have support at the domestic level. Often, a perceived crisis will provide the impetus for a regime. Jurgielewicz then analyzes to what extent regimes are in force and are effective in the issue areas of stratospheric ozone layer depletion and climate change. The two issues are similar in some respects: both are caused by action around the world, both effect all parts of the planet, although differentially, and both can only be solved through extensive international cooperation. The two issues, however, have a great number of dissimilarities. First, the production and use of ozone depleting substances are far less central to world economies than are greenhouse gases, most notably those formed through the burning of fossil fuels. Second, stratospheric ozone depletion is surrounded by less economic uncertainty. Third, stratospheric ozone depletion became the subject of alarm, when the Antarctic ozone hole was first identified. Given this variance, one would expect to see difference in the shape and effectiveness of international regimes. It is therefore no accident that Jurgielewicz finds more of a regime in place for ozone depletion than for climate change. Jurgielewicz’s thesis is that regimes can provide a mechanism for international legal enforcement of global environmental change, especially since other sources of international law have yet to rise to the level of offering binding constraints on behavior. Still, it is difficult to identify any legal obligations arising under the climate change regime, since states have been explicit about not incorporating binding obligations. The analysis of the climate change regime, such as the FCCC, necessarily involves more focus on how the regime is currently going about the process of negotiating the preliminaries of binding targets, rather than what rules it has developed, and how it enforces those rules. It is a prime subject for study within the rubric of international relations, and of far less use to highlight principles of international law. Jurgielewicz does not miss this difficulty: "The important point is that there is a path or a process (regime formation and maintenance) to substantive legal regulations—a path that if overlooked, may prevent the reaching of one’s destination." (p. 225). Jurgielewicz encounters her greatest difficulty in trying to identify the usefulness of regime theory to the field of international law. The former is concerned with the evolution of processes for negotiation and social learning; the latter is concerned with binding obligations and duties. While regime theory is interesting and important to academics and to politicians, it is not the basis for legal arguments. The subtitle of Jurgielewicz’s book reads Prospects for Progress in the Legal Order. This may be wishful thinking. There is little sign that international law will recognize that global environmental change presents new challenges to international governance for which its traditional sources are ill-equipped. If change is to occur, however, it will be out of more efforts at interdisciplinary scholarship, like the one that Jurgielewicz has undertaken.

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Meet the Author

Lynne M. Jurgielewicz is Adjunct Lecturer in Environmental Studies at Santa Clara University.

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