The role of States has changed within the international framework. The evolution of international law led to envisage sovereignty under equality, effectiveness, and freedom amongst States. Some scholars claim that these three elements can be summarized under the laissez-faire approach. Consequently, classical international law recognizes States to be equally free provided they submit to “certain rules of the game.”(1) Hence, States are still relevant in implementing legislation, but more importantly, they are fundamental as legislators and enforcement agency for international environmental law. However, there has been a shift in the role they play. States have become much more operational. They are considered as an instrument for the implementation and development of international environmental law. Some scholars argue that the concept of statehood has shifted from a status-oriented approach to an action-oriented model. (2) This concept implies that there is a common ground for the development of common interests and institutions thereof. Although States have the final say in ratifying an agreement within law-making processes, they have lost the influence they used to have in the process of law-making.
States are, in fact, authors, addresses and guardians of international environmental law. Although States have been decentralized within the system of international law, they still play a crucial role, being the authors thereof. A significant number of multilateral environmental agreements have been drafted more frequently under the auspices of international organizations. Moreover, there has also been the presence of non-governmental organizations (NGOs) that have had a material impact on the substance of the law. (3)
However, it is necessary to consider States not only as authors of international law but also as addresses. Subsequently, States have to follow three types of obligations: obligations to refrain, obligations to prevent, and obligations to preserve. International environmental law considers the obligations to refrain as a duty to avoid unsafe and hazardous behaviour that might endanger others. (4) Therefore, dumping dangerous waste on land or sea, destroying ecosystems, or releasing toxic substances in the atmosphere are all examples of actions that States ought to avoid. Moreover, the State, as an addressee, must prevent harmful conduct from non-state actors. Finally, the State must preserve from further degradation of the ecosystem. (5) States are also guardians of international environmental laws.
They do so with law enforcement. Ultimately, contemporary statehood is evolving. (6) Hence, the international (environmental) system is transforming depending on the position each State assumes with effect on the global system as a whole. International environmental policies depend on these interdependencies.
Hence, contemporary statehood has to coexist with a growing plurality of actors and regimes. As mentioned earlier, international institutions and organizations played a pivotal role in shaping international environmental law. The gradual rise in the value of international institutions has brought new actors to the scene. Although one of the first institutions within the environmental framework was the International Whaling Commission (IWC), the major development in the system was the creation of UNEP and the other institutions that followed. Additionally, NGOs have also actively advocated for environmental rights. International environmental law has granted NGOs varying degrees of legal status. Finally, it is also necessary to consider individuals in actors. Environmental rights have been under the attention of policymakers through international treaties. For instance, States must consider the impacts of some of their policies to both its national citizens and the world citizens as well. (7)
Moreover, the plurality of regimes has increasingly shaped the concept of sovereignty. Not only did States move from bilateralism to multilateralism, but they increasingly engaged in a significant number of conventions. Environmental regimes have three main characteristics: they focus on a particular environmental issue or source of pollution; they increase administrative duty, they act subsidiarity capacities for States. (8)
In conclusion, the continuing evolution of contemporary statehood has brought new actors in the making of international environmental norms. (9) A meaningful milestone was the United Nations Conference on the Human Environment (in Stockholm in 1972) that established the United Nations Programme (UNEP) along with a significant number of other international environmental institutions. These international institutions helped in developing a coherent and stable regime. (10) Moreover, NGOs have also taken part in the creation of this system. Their prominent role supported environmental initiatives and projects that eventually influenced the governments positively.
Gennaro Stefanelli
1 Cassese, A. (2005). International Law. Oxford University Press. p. 46-47
2 Marauhn, T. (2007). Changing Role of the State. Oxford University Press. p. 728-732
3 Ibid. p. 733
4 See Wolfrum, R (1999). Means of Ensuring Compliance with and Enforcement of International Environmental Law.
272 Recueil des cours. p. 9
5 Marauhn, T. (2007). Changing Role of the State. Oxford University Press. p. 732-735
6 Schrijver, N. (2000). The Changing Nature of State Sovereignty. 70 Br. Y.B. Int’l L. p. 65.
7 Marauhn, T. (2007). Changing Role of the State. Oxford University Press. p. 736-738
8 Ibid. 739
9 Cassese, A. (2005). International Law. Oxford University Press. p. 124-150
10 See Loibl, G. (2001). The Role of International Organizations in International Law-Making International Environmental Negotiations. 1 Non-State and International Law 41.
La disillusione 