The Environment & The
Law of Nations
Jeffrey G. Miller Pace Law School

Pollution and other environmental problems don’t recognize political borders: depletion of ocean fisheries, mercury from coalburning power plants, and global warming, are a few. No country can solve such problems by itself. It takes an international effort grounded in international law. Understanding international environmental law is therefore the key to understanding whether and how these transnational problems can be addressed.

Treaties are agreements that bind only nations that adopt
and ratify them. Treaties may be between two nations (bilateral)
or multi-national, such as the United Nations Charter. The Boundary Waters Treaty of 1909 between the United States and Canada has proved useful in managing many trans-boundary disputes. Indeed,
before the enactment of pollution control laws in the United States, the United States and Canada agreed to international arbitration regarding pollution from a lead smelter in British Columbia that damaged apple orchards in Washington State, the Trial Smelter Case. Scholars have counted over 35,000 treaties of all kinds and over 1,000 treaties involving environ- mental matters. Treaties may establish secretariats to administer the treaty and oversee dispute resolution mechanisms. In general, however, treaties rely on their signatories to
take necessary actions to implement treaty obligations domestically. Several US federal statutes (including the Ocean Dumping Act, the Endangered Species Act, and the Migratory Bird Treaty Act) implement treaty obligations undertaken by the United States International law differs from domestic law in that there is no international legislature and no international executive. There is an International Court of Justice, but it has jurisdiction over a dispute only if the parties agree to submit their dispute to it. Once the IJC decides a dispute, it has no means to enforce its judgment. Some treaties create quasi-legislative, quasi-executive, and quasijudicial institutions to implement their provisions. But only rarely can they force a nation to act when it refuses to do so.

Because public international law is the law of nations, it provides few opportunities for Waterkeepers and other public interest advocates to enforce. They can not, for instance, bring a suit to the International Justice Court. The public does, however, have a role in forcing domestic legislation to enact treaty obligations. The United States’ Constitution then makes treaty obligations "the supreme law of the land," presenting other opportunities for NGOs in domestic litigation.

Although international environmental law could be effective in addressing global environmental problems, the biggest barrier for its doing so is the United States government. The Bush administration is as reluctant to submit to international law as it is reluctant to seriously address environmental problems at home or abroad. Our refusal to agree to the Kyoto Protocol (a treaty to reduce greenhouse gas emissions to ease climate change) or the International Criminal Court are two recent examples of the administration’s unwillingness to lead environmentally or internationally. Without the agreement of the world’s largest economic and military power, international efforts are unlikely to be effective.