Yearbook of International Environmental Law, (2020), pp.

1–19
doi:10.1093/yiel/yvaa072

Thirty Years Later: Top Ten Developments in

International Environmental Law

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Daniel Bodansky

I. INTRODUCTION

I had just started life as an academic in 1990, when the Yearbook of International
Environmental Law first appeared. International environmental law had recently
emerged from the doldrums and again seemed to brim with promise. The
Montreal Protocol had been adopted only three years earlier, along with the
Brundtland Commission’s report Our Common Future, which popularized the
concept of sustainable development.1 The so-called ‘Earth Summit’ was upcom-
ing in 1992, commemorating the twentieth anniversary of the Stockholm
Conference on the Human Environment, which had anchored the first wave of
legal and institutional development in the early 1970s. And negotiations of two
major agreements were on the horizon, addressing climate change and biodiver-
sity. In 1988, Time Magazine had named ‘Endangered Planet Earth’ as its news-
maker of the year, and George H.W. Bush had just been elected US president,
vowing to meet the greenhouse effect with the ‘White House effect.’
The ensuing thirty years have tempered that early optimism. According to the
Whig theory of history, the world moves in a single, progressive direction. But
the history of international environmental law has been one of downs as well as
ups. Problems such as climate change and biodiversity loss have proved more in-
tractable than many expected back in 1990, when the regimes to address them
were first being developed. Despite multiple agreements, the upward curve of
greenhouse gas emissions is essentially unchanged and loss of biodiversity con-
tinues apace. Perhaps these will turn out to be bumps in the road and the Whig
theory will eventually be vindicated. But the checkered history of international
environmental law may also show its limits in addressing problems whose solu-
tion requires fundamental societal change.
That said, international environmental law has remained an unusually dynamic
field. The thirtieth anniversary of the Yearbook presents an opportunity to take

Daniel Bodansky, Regents’ Professor, Sandra Day O’Connor College of Law, Arizona State
University, Phoenix, AZ, United States. Email: [email protected]. Thanks to Susan Biniaz
and Bryce Rudyk for providing very helpful suggestions on this article.
1
Montreal Protocol on Substances That Deplete the Ozone Layer, 1987, 1522 UNTS 3 (Montreal
Protocol); World Commission on Environment and Development, Our Common Future (1987).

C The Author(s) 2020. Published by Oxford University Press. All rights reserved.
V
For permissions, please e-mail: [email protected]
2 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW

stock of how it has developed since 1990, both as a subject area and as a discip-
line. In this article, I briefly outline the foundational elements of international en-
vironmental law—which were largely in place as of 1990—and my top ten list of

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developments since then.

II. FOUNDATIONS

International environmental problems have several distinctive features. To one

degree or another, they involve significant technical complexity; they are rapidly
changing; they are uncertain; they result primarily from private, rather than gov-
ernmental, conduct; and they implicate fundamental aspects of domestic policy,
which are central to states’ sovereignty.
As I have argued elsewhere, international environmental law has developed dis-
tinctive approaches to standard setting, institutions, and compliance in response:
. it sets standards through dynamic treaty regimes;
. its key institution is the meeting of the parties to multilateral environmental
agreements (often referred to as the ‘conference of the parties’ [COP]); and
. it promotes compliance through transparency and forward-looking, non-adver-
sarial procedures, aimed at improving effectiveness, rather than through trad-
itional international dispute settlement, which takes a backward-looking
approach, focusing on the issue of state responsibility.2

By 1990, when the Yearbook was launched, the first two of these foundational
elements of international environmental law had been laid and the third was
about to be launched, although it would take time for their significance to be fully
appreciated in the scholarly literature.

1. Dynamic Treaty Regimes

One of the most characteristic features of international environmental law is dy-
namic treaty regimes.3 In contrast to agreements in many other areas of inter-
national law, which crystallize a set of agreed norms at a particular point in time,
international environmental treaties are designed to evolve over time in response
to new information, new problems, and changing perceptions and values. This
dynamic quality of environmental treaty making was appreciated early on in the
scholarly literature. Indeed, the inaugural volume of the Yearbook included a
seminal article on the subject.4
2
Daniel Bodansky, ‘Does One Need to Be an International Lawyer to Be an International
Environmental Lawyer?’ (2006) 100 Proceedings Am Soc Intl L 303.
3
See generally Thomas Gehring, Dynamic International Regimes: Institutions for International
Environmental Governance (1994).
4
Thomas Gehring, ‘International Environmental Regimes: Dynamic Sectoral Legal Systems’
(1990) 1 YIEL 35.
 TOP TEN DEVELOPMENTS IN INTERNATIONAL ENVIRONMENTAL LAW 3
A. Framework Convention/Protocol Approach
One means of making treaty regimes dynamic has been the framework con-
vention/protocol approach, which allows international cooperation to develop

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in an incremental, stepwise manner. First, a framework convention is adopted,
establishing a basic system of governance for an issue area. Then, as greater
consensus emerges about how to address a problem—in many cases, as a
result of the processes established by the framework convention itself—
regulatory responses are elaborated in protocols.5 The 1979 Convention on
Long-Range Transboundary Air Pollution (LRTAP Convention) was an early
example of a framework convention6 and has been followed by eight proto-
cols addressing specific pollutants such as sulphur dioxide, nitrogen oxides,
volatile organic compounds, persistent organic pollutants, and ground-level
ozone. The framework convention/protocol approach was also used prior to
1990 in the United Nations Environment Programme’s regional seas program
and the ozone regime.

B. Rapid Amendment Procedures

Ordinarily, amending a treaty is almost as difficult as adopting it in the first place
since amendments require the affirmative consent of states, enter into force only
after a specified number of states have ratified, and bind only those states that af-
firmatively consent. To allow greater dynamism, multilateral environmental
agreements often put detailed regulatory materials in an annex, schedule, or ap-
pendix that can be amended more easily than the convention itself. Under these
rapid amendment procedures, amendments can be adopted by a qualified major-
ity vote and enter into force for all parties after a specified period of time, except
for those countries that file a notice of objection.7 If a state fails to object, it is
considered to tacitly consent. This rapid amendment procedure goes all the way
back to the 1946 International Convention for the Regulation of Whaling
(Whaling Convention), which places its regulatory requirements (for example,
addressing open and closed seasons, open and closed waters, size limits, specifi-
cations of gear) in a schedule that can be amended by a three-quarters majority
5
Daniel Bodansky, ‘The Framework Convention/Protocol Approach,’ WHO Technical Briefing
Series, Doc WHO/NCD/TFI/99.1 (1999).
6
Convention on Long-Range Transboundary Air Pollution, 1979, 1302 UNTS 217 (LRTAP
Convention).
7
Although rapid amendment procedures generally give states the right to opt out, the Montreal
Protocol, supra note 1, art 2(9), authorizes its meeting of the parties to ‘adjust’ control measures by a
qualified majority vote, with no opt-out right. Some recent conventions limit their rapid amendment
procedure by allowing states to opt out of it when they ratify (in which case amendments apply to
them only if they affirmatively consent). Eg, UN Convention to Combat Desertification in Those
Countries Experiencing Drought and/or Desertification, Particularly in Africa, 1994, 1954 UNTS 3,
art 34.4; Stockholm Convention on Persistent Organic Pollutants, 2001, 2256 UNTS 119, art 25.4
(Stockholm Convention).
4 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW
8
vote. More recent examples of agreements with rapid amendment procedures in-
clude the 1973 Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES), which lists endangered and threatened species

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subject to special permitting procedures in two appendices that can be amended
by two-thirds majority vote;9 the International Convention for the Prevention of
Pollution from Ships (MARPOL Convention), which specifies its detailed regula-
tions in annexes that can be amended by two-thirds of the parties representing 50
percent of the world’s gross merchant tonnage;10 and the 2001 Stockholm
Convention on Persistent Organic Pollutants, which lists the pollutants subject to
its various regulatory requirements in three annexes.11

2. COPs Conference of Parties

If the key mode of normative development in international environmental law

has been dynamic treaty regimes, the key institution has been the COP.12 The
two elements go together since COPs are the institution that makes environmen-
tal regimes dynamic—for example, by adopting additional legal agreements,
amending annexes, and making other decisions that elaborate the original regime.
For this reason, one of the most important functions of framework conventions
and other multilateral environmental agreements has been to establish a regular
meeting of the parties. It is this feature that distinguishes the 1946 Whaling
Convention from its predecessors and contemporary environmental agreements
from early ones like the 1940 Convention on Nature Protection and Wildlife
Preservation in the Western Hemisphere, which is still technically in force but
has largely been forgotten because it did not establish any ongoing institutional
infrastructure.13
In contrast to dynamic treaty making, the significance of COPs—and the
broader infrastructure of treaty institutions—was not immediately appreciated in
the scholarly literature, despite their importance. Neither of the first two treatises

8
International Convention for the Regulation of Whaling, 1946, 161 UNTS 72, art III(2)
(Whaling Convention).
9
Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973, 993
UNTS 243, art XV(1)(b) (CITES).
10
International Convention for the Prevention of Pollution from Ships, 1973, 1340 UNTS 61,
amended by 1978 Protocol, art 16.2(f)(i) (MARPOL Convention).
11
Stockholm Convention, supra note 7, art 22.4.
12
Conferences of the parties go by many names: for the LRTAP Convention, the Executive
Committee plays that role; for the MARPOL Convention, there is the Marine Environment
Protection Committee of the International Maritime Organization; and, for the Whaling Convention,
there is the International Whaling Commission.
13
Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, 1940,
161 UNTS 193. The Convention on Wetlands of International Importance Especially as Waterfowl
Habitat, 1971, 996 UNTS 245 (Ramsar Convention), did not originally establish a regular meeting of
the parties and had to be amended to provide for one.
 TOP TEN DEVELOPMENTS IN INTERNATIONAL ENVIRONMENTAL LAW 5
on international environmental law mention them in their chapters on inter-
national institutions.14 Indeed, as late as 2000, in their seminal article on COPs,
Robin Churchill and Geir Ulfstein still referred to them as a ‘little-noticed
phenomenon.’15

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3. Non-Compliance Procedures
Non-adversarial, forward-looking non-compliance procedures are a third founda-
tional element of the international environmental process.16 These procedures re-
flect a managerial, rather than an enforcement, approach to compliance.17 Their
political and pragmatic character contrast with the more legalized dispute settle-
ment characteristic of other areas of international law, such as human rights law,
which states have been reluctant to embrace in environmental regimes. They
made their first appearance in 1990 in a Montreal Protocol decision establishing a
non-compliance procedure on an interim basis. Their significance was recognized
early on, in particular, in an article by Martti Koskenniemi that appeared in 1993
in the third volume of the Yearbook.18 Various versions of compliance mecha-
nisms are now found in many other multilateral environmental agreements,
including the Basel Convention on the Transboundary Movement of Hazardous
Wastes (Basel Convention), the Kyoto Protocol, several protocols to the LRTAP
Convention, the 1991 Convention on Environmental Impact Assessment in a
Transboundary Context, and, most recently, the Paris Agreement.19

III. TOP TEN DEVELOPMENTS SINCE 1990

Although the foundations of international environmental law had been laid as of

1990, international environmental law has maintained its dynamic character and
looks quite different today:
. it has become both wider and deeper;

14
Alexandre Kiss and Dinah Shelton, International Environmental Law (1991), ch III; Patricia W
Birnie and Alan E Boyle, International Law and the Environment (1992), ch 2.
15
Robin Churchill and Geir Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral
Environmental Agreements: A Little-Noticed Phenomenon in International Law?’ (2000) 94 AJIL
623.
16
Tullio Treves et al, eds, Non-Compliance Procedures and Mechanisms and the Effectiveness of
International Environmental Agreements (2009).
17
Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with
International Regulatory Agreements (1998).
18
Marti Koskenniemi, ‘Breach of Treaty or Non-Compliance: Reflections on the Enforcement of
the Montreal Protocol’ (1993) 3 YIEL 123.
19
Basel Convention on the Control of Transboundary Movements of Hazardous and Their
Disposal, 1989, 1673 UNTS 126 (Basel Convention); Kyoto Protocol to the UN Framework
Convention on Climate Change, 1997, 2303 UNTS 148; LRTAP Convention, supra note 6;
Convention on Environmental Impact Assessment in a Transboundary Context, 1991, 1989 UNTS
309; Paris Agreement on Climate Change, 2015, 55 ILM 740 (2016) (Paris Agreement).
6 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW

. it has developed innovative approaches to treaty design in order to encourage

participation and take account of varying national circumstances;
. in addition to treaty making, new modes of normative development play in-
creasingly important roles: decisions of the parties to multilateral environmen-

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tal agreements, private regulation, and judicial decisions;
. it engages more directly with non-state actors;
. it has become more closely intertwined with other areas of international law;
and
. it has matured as a discipline.

The following is my personal top ten list of developments since 1990. It should
be noted that, in a number of cases, the features I highlight are not entirely new
but, rather, the flowering of seeds sewn earlier.

1. Widening
To begin with, international environmental law has tackled many new issues. The
expansion from an initial focus on nature conservation and marine pollution to a
wider set of environmental issues had already begun by 1990, with the adoption of
agreements in the 1980s on acid rain, the protection of the stratospheric ozone layer,
and transboundary movements of hazardous wastes. Since then, the ambit of inter-
national environmental law has expanded much further and now includes binding
agreements on climate change, biodiversity, desertification, persistent organic pol-
lutants, trade in chemicals and pesticides, mercury, environmental impact assess-
ment, and public participation, as well as non-binding principles on forestry.20
Notable gaps still exist in the coverage of international environmental law—for ex-
ample, marine plastics. And critics argue that the field still fails to focus sufficiently
on the root causes of environmental problems, such as population and consumption
growth. But, today, international environmental law at least addresses—if not sol-
ves—a much greater fraction of the world’s environmental issues.

2. Deepening
Existing international environmental regimes have also deepened along several
dimensions.

A. Stringency
The Montreal Protocol illustrates deepening through more stringent commit-
ments. When adopted in 1987, it regulated only eight ozone-depleting substances,
requiring a 50 percent reduction in consumption and production for five
20
See generally Philippe Sands and Jacqueline Peel, Principles of International Environmental
Law (4th edn, 2018).
 TOP TEN DEVELOPMENTS IN INTERNATIONAL ENVIRONMENTAL LAW 7
substances and the stabilization of another three. Through a series of amendments
and adjustments, it now regulates nearly 99 percent of ozone-depleting substan-
ces and requires the phase out of nearly 100 substances.21

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B. Legal Bindingness
A second type of deepening involves converting a non-binding instrument into a
legal agreement. For example, prior to 1990, states had adopted non-binding prior
informed consent procedures for trade in pesticides and chemicals.22 These be-
came the basis in 1998 for a legally binding treaty—the Convention on the Prior
Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in
International Trade.23

C. Precision
A third type of deepening involves making vague provisions more precise. For
example, the Ramsar Convention requires parties to promote as far as possible
the ‘wise use’ of wetlands in their territory,24 but it does not specify what ‘wise
use’ entails. Through a series of decisions, the Ramsar parties progressively ela-
borated the meaning of ‘wise use,’ first in a definition in 1987, then in guidelines
adopted in 1990, and then in greater detail in a conceptual framework adopted in
2005.25

D. Compliance/Enforcement
CITES illustrates a final form of deepening: stronger mechanisms to promote
compliance. Based on a very modest provision in CITES itself on ‘international
measures,’26 the COP developed an elaborate compliance system that, in extreme
21
Tina Birmpili, ‘Montreal Protocol at 30: The Governance Structure, the Evolution, and the
Kigali Amendment’ (2018) 350 Comptes Rendus Geoscience 425 at 427.
22
Food and Agriculture Organization, Code of Conduct on the Distribution and Use of Pesticides
(1985); United Nations Environment Programme (UNEP), London Guidelines for the Exchange of
Information on Chemicals in International Trade (1987).
23
Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and
Pesticides in International Trade, 1998, 2244 UNTS 337.
24
Ramsar Convention, supra note 13, art 3(1).
25
Wise Use of Wetlands, Ramsar Recommendation 3.3 (1987); Guidelines for the Implementation
of the Wise Use Concept, Ramsar Recommendation 4:10 (2010); A Conceptual Framework for the
Wise Use of Wetlands and the Maintenance of Their Ecological Character, Ramsar
Recommendation 9.1, Annex A (2005). The Ramsar Convention’s Secretariat compiles the guidance
adopted by the parties, together with COP information papers, case studies, and other relevant publi-
cations, in a series of handbooks. The fourth edition of the Ramsar Convention Handbooks, pub-
lished in 2010, includes sixteen volumes of materials relevant to wise use. Ramsar Convention
Secretariat, Ramsar Convention Handbooks, vols 1–16 (4th edn, 2010).
26
CITES, supra note 9, art XIII (authorizing the conference of parties to review information pro-
vided by parties and to make recommendations).
8 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW

cases, provides for recommended trade suspensions with countries that have per-
sistent problems of implementation.27

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3. Innovative Ways to Promote Participation
A key challenge of multilateral treaty design is to encourage participation by
states. Without broad participation, particularly by the countries most responsible
for a problem, even a strong environmental agreement will not be effective. Over
the years, international environmental law has developed an extensive toolkit to
encourage participation.28 The ozone regime provides a good illustration. It
started with a framework convention in 1985, the Vienna Convention for the
Protection of the Ozone Layer, which established few commitments and, hence,
was easy for states to join.29 Then, to encourage states to join the much more
demanding Montreal Protocol, it included both carrots and sticks: on the one
hand, it gave developing countries with low per capita consumption of ozone-
depleting substances an additional ten years to comply; on the other hand, it pro-
vided for trade measures against non-parties.30 When these did not prove suffi-
cient to get big developing countries such as China and India to buy in, it
established a multilateral fund in 1990 to help developing countries implement
their commitments. Since 1990, international environmental law has continued to
show impressive creativity in devising a range of tools, explored below, to en-
courage participation.

A. Choice of Commitments
Some agreements promote participation by allowing states to choose among a
menu of possible commitments rather than defining a single type of commit-
ment.31 For example, the 1999 Gothenburg Protocol to the LRTAP Convention
requires parties to apply specified emission limits to each new stationary source
within specified source categories. But the protocol provides that parties may
apply, as an alternative, different emission reduction strategies so long as the
strategies ‘achieve equivalent overall emissions levels for all source categories
together.’32 Similarly, the 2013 Minamata Convention on Mercury provides that
27
CITES Compliance Procedures, CITES Conference Resolution 14.3 (Rev. CoP18) (2007,
amended in 2019); see generally Rosalind Reeve, Policing International Trade in Endangered
Species: The CITES Treaty and Compliance (2004).
28
Susan Biniaz, Join the Parties: 25þ Ways to Promote Participation in Multilateral
Environmental Agreements, Sabin Center for Climate Change Law, Columbia Law School (March
2018).
29
Vienna Convention for the Protection of the Ozone Layer, 1985, 1513 UNTS 323.
30
Montreal Protocol, supra note 1, arts 4–5.
31
This paragraph is drawn from Daniel Bodansky, Building Flexibility and Ambition into a 2015
Climate Agreement, Center for Climate and Energy Solutions (2014) at 5.
32
Gothenburg Protocol to Abate Acidification, Eutrophication and Ground-Level Ozone, 1999,
2319 UNTS 81, art 3(2).
 TOP TEN DEVELOPMENTS IN INTERNATIONAL ENVIRONMENTAL LAW 9
parties shall not allow the manufacture, import, or export of certain products con-
taining mercury. But it allows a party to adopt different measures if the party can
demonstrate that it has already achieved de minimis levels of manufacture, im-
port, and export for the vast majority of listed products.33 Since states have very

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different legal and regulatory systems, giving them a menu of options makes par-
ticipation easier by allowing them to choose a type of commitment that fits their
national circumstances and is compatible with their domestic law.

B. Self-determined Commitments
Another technique that affords states even greater flexibility is allowing them to
self-determine their commitments. The Paris Agreement, for example, allows
states to ‘nationally determine’ the type and stringency of their mitigation contri-
butions,34 in stark contrast to the rigid regulatory approach of the Kyoto Protocol,
which defined a single type of commitment (absolute, quantitative, economy-
wide emission reduction targets)35 and set the stringency of each country’s com-
mitment through international negotiations—an approach that proved acceptable
to only a small number of states, mostly in Europe. Given the political sensitivity
of the climate change issue, the Paris Agreement’s bottom-up approach was es-
sential for getting broad buy-in and helps account for its rapid entry into force.

C. Hybrid Agreements
The Paris Agreement also illustrates a third means of encouraging participa-
tion—namely, a hybrid approach to legal form.36 The issue of legal form was
central to the Paris negotiations from the start. Some countries wanted a legally
binding agreement requiring states to reduce their greenhouse gas emissions,
including the European Union and small island developing states (SIDS); others
such as the United States and India were reluctant to accept legally binding emis-
sion limitations. Ultimately, the issue of legal form was resolved through a hybrid
approach. On the one hand, the Paris Agreement is a ‘treaty’ within the meaning
of the Vienna Convention on the Law of Treaties.37 On the other hand, the central
feature of the Paris Agreement—parties’ nationally determined contributions
(NDCs) to limit emissions—are not legally binding. Parties have procedural
33
The products are listed in Part I of Annex A. Minamata Convention on Mercury, 2013, 55 ILM
582 (2016), art 4 (Minamata Convention).
34
Paris Agreement, supra note 19, art 4.2.
35
Kyoto Protocol, supra note 19, art 3.1.
36
The Paris Agreement, supra note 19, is the most prominent example of a hybrid instrument, but
not the first. The 1992 United Nations Framework Convention on Climate Change also had a hybrid
legal form. It was a legally binding instrument that contained non-binding provisions—in particular,
its emission limitation goal for Annex I parties. United Nations Framework Convention on Climate
Change, 1992, 1771 UNTS 107, art 4.2 (UNFCCC).
37
Vienna Convention on the Law of Treaties, 1969, 1155 UNTS 331.
10 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW

obligations to communicate and maintain a NDC and to report on implementation

of their NDC. But they do not have a substantive obligation to achieve their
NDC. This hybrid approach to legal form was essential to achieve participation

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both by countries unwilling to accept legally binding limits on their emissions
and by those for whom a legally binding agreement was essential.

4. More Nuanced Approaches to Differentiation

International environmental law has also developed more varied, nuanced
approaches to the issue of differentiation,38 reflecting the fact that differentiation
can have many bases (for example, historical responsibilities, capacities, national
circumstances), can distinguish countries in many ways (for example, on the
basis of a list, objective criterion, or general descriptor such as ‘developing coun-
try’), and can take many forms (for example, different obligations, different
timing, flexibility in implementation, and assistance). Early environmental
agreements such as the London Convention, MARPOL Convention, Ramsar
Convention, and CITES did not create different obligations for different countries
but often allowed parties to take into account their particular national circumstan-
ces through ‘contextual’ standards that included qualifiers such as ‘as appropri-
ate’ or ‘as far as possible.’39 By 1990, however, differentiation of commitments
had entered international environmental law’s ‘toolkit’—in particular, in the
Montreal Protocol, which gave ‘Article 5’ parties (developing countries whose
consumption of chlorofluorocarbons is less than 0.3 kilograms per capita)40 an
extra ten years to comply, as well as in the 1989 Basel Convention, which
focused in particular on exports of hazardous wastes to developing countries.41
In 1991, when I first began attending the United Nations (UN) climate change
and Rio Conference negotiations, differentiation was conceptualized by many
primarily in North versus South, ‘developed’ versus ‘developing’ country terms,
under the banner of the principle of ‘common but differentiated responsibil-
ities,’42 with developing countries largely negotiating as a bloc, through the so-
called Group of 77 (G-77). This approach is generally reflected in the United
38
See generally Lavanya Rajamani, Differential Treatment in International Environmental Law
(2006).
39
Daniel Barstow Magraw, ‘Legal Treatment of Developing Countries: Differential, Contextual,
and Absolute Norms’ (1990) 1 Colorado J Intl Envtl L Policy 69 at 91; Convention on the Prevention
of Marine Pollution by Dumping of Wastes and Other Matter, 1972, 1046 UNTS 120; MARPOL
Convention, supra note 10; Ramsar Convention, supra note 13; CITES, supra note 9.
40
Because the term ‘developing country’ is not defined internationally, the Montreal Protocol’s
parties adopted a decision listing the countries that should be considered ‘developing’ for the pur-
poses of Article 5. Montreal Protocol Decision I/12E: Clarification of Terms and Definitions:
Developing Countries (1989).
41
Basel Convention, supra note 19.
42
The principle of common but differentiated responsibilities was enshrined in the Rio
Declaration on Environment and Development, 1992, 31 ILM 874 (1992), principle 7 (Rio
Declaration).
 TOP TEN DEVELOPMENTS IN INTERNATIONAL ENVIRONMENTAL LAW 11
Nations Framework Convention on Climate Change (UNFCCC), which divided
the world into ‘Annex I’ and ‘non-Annex I’ country parties, roughly correspond-
ing to developed and developing countries, at least as of 1992 (although the con-

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vention left ambiguous whether differentiation was based on historical
responsibilities or current capabilities and recognized the ‘specific needs and con-
cerns’ of narrower categories of countries, including SIDS, countries with low-
lying coastal areas, countries prone to natural disaster, and countries whose
economies are highly dependent on income generated from fossil fuels).43 The
Kyoto Protocol carried this approach to an extreme, imposing legally binding
emission limitation targets on Annex I parties but no new commitments for non-
Annex I parties.
More recently, however, approaches to differentiation have themselves be-
come more differentiated. The Paris Agreement, in particular, takes a highly
nuanced, calibrated approach to differentiation in its various provisions. It added
a third basis for differentiation (different national circumstances) to the two bases
in the UNFCCC (responsibilities and capabilities).44 Its mitigation provision
imposes the same commitments on all parties but allows parties to self-
differentiate the content of their NDCs.45 Its adaptation articles gives special con-
sideration to parties ‘particularly vulnerable to the adverse effects of climate
change.’46 Its financial assistance provision imposes commitments on developed
countries but not on developing countries, the same general approach as the
UNFCCC.47 In contrast, its transparency framework gives flexibility not to all
developing countries but, rather, only to ‘those developing country Parties that
need it in the light of their capacities.’48 And, throughout the agreement, it gives
special consideration to various other groups, including least developed countries
and SIDS49 and parties with ‘economies most affected by the impacts of response
measures.’50
Approaches to differentiation outside the UN climate change regime show
even greater variety in who and what is differentiated. In the Minamata
Convention, parties’ obligations to control releases of mercury are not differenti-
ated. Instead, the convention addresses the needs of developing countries by creat-
ing a financial mechanism to support their implementation efforts.51 In the new
International Civil Aviation Organization’s market-based scheme to reduce
43
UNFCCC, supra note 36, arts 3.1, 4.8–4.10.
44
Paris Agreement, supra note 19, preambular recital 3, arts 2.2, 4.3, 4.19.
45
Ibid, art 4.
46
Ibid, arts 7.2, 7.6.
47
The Paris Agreement’s financial provision differs somewhat from that of the UNFCCC, in that
it applies to ‘developed countries,’ a less-clear cut category than the Annex II list to which the
UNFCCC’s financial provision applies. Ibid, art 9.
48
Ibid, art 13.2.
49
Ibid, arts 4.6, 9.4, 9.9, 11.1, 13.3.
50
Ibid, art 4.15.
51
Minamata Convention, supra note 33, art 13.
12 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW

aviation emissions, only limited categories of developing countries were excluded

from the second phase of the scheme, including least developed countries, land-
locked developing countries, and SIDS.52 And in the Kigali Amendment to the

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Montreal Protocol, which limits hydrofluorocarbons, the parties abandoned the
protocol’s pre-existing approach to differentiation—which distinguishes between
‘Article 5’ and non-Article 5 countries and grants the former an extra ten years to
comply—because it did not sufficiently take into account differences in national
circumstances within the two groups. Instead, the amendment creates five
categories of countries, two categories for non-Article 5 parties and three for
Article 5 parties, based on a combination of lists and a criterion (high ambient
temperature).53

5. Elaboration through Decisions of the Parties

As discussed earlier, COPs have long played a key role in the development of
international environmental law by adopting new agreements (for example, pro-
tocols) or amending the regulatory annexes of existing ones. In such cases, COP
decisions are a necessary, but not sufficient, step in the law-making process.
Additional conditions also need to be satisfied,54 and what ultimately becomes
part of the body of international environmental law is the resulting agreement or
amendment, not the COP decision itself.
Increasingly, however, COP decisions play a more direct role in the standard-
setting process, by elaborating the provisions in an agreement.55 For example, the
detailed rules operationalizing the Kyoto Protocol and the Paris Agreement were
adopted through COP decisions—the Marrakesh Accords for the Kyoto
Protocol56 and the Katowice Rulebook for the Paris Agreement.57 In many cases,
COP decisions are so numerous that the treaty text itself represents just the tip of
the normative iceberg of the regime that it creates. The Operational Guidelines
for the Implementation of the World Heritage Convention,58 for example, are
more than 175 pages long, ten times the length of the World Heritage Convention

52
ICAO Resolution A40-19 on Carbon Offsetting and Reduction Scheme for International
Aviation (2016) at para 9(e).
53
Amendment to the Montreal Protocol on Substances That Deplete the Ozone Layer, Doc UNEP/
OzL.Pro.28/12, Annex A (2016).
54
For amendments that require affirmative consent, ratification by a sufficient number of states for
entry into force; for amendments requiring only tacit consent, the passage of time and the lack of ob-
jection by more than a specified number of states.
55
Annecoos Wiersema, ‘The New International Law-Makers? Conferences of the Parties to
Multilateral Environmental Agreements’ (2009) 31 Mich J Intl L 231.
56
UNFCCC, Marrakesh Accords, Decisions 2/CP.7-24/CP.7, UN Doc FCCC/CP/2001/13/Add.1-3
(2001).
57
Paris Agreement, Katowice Rulebook, Decisions 3/CMA.1-20/CMA.1, UN Doc FCCC/PA/
CMA/2018/3/Add.1-2 (2018).
58
Operational Guidelines for the Implementation of the World Heritage Convention (2019)
<https://whc.unesco.org/en/guidelines/>.
 TOP TEN DEVELOPMENTS IN INTERNATIONAL ENVIRONMENTAL LAW 13
itself, while the Montreal Protocol’s handbook, which compiles important deci-
sions of the parties, now runs to more than 950 pages.59
Unless an agreement gives its COP authority to adopt legally binding decisions

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on a particular subject, COP decisions do not have the ‘force’ of law. New legal
rules require an amendment. Nevertheless, COP decisions generally play an im-
portant role in setting normative expectations, whether or not they are formally
binding. The decisions by the Ramsar Convention’s parties spelling out the
meaning of ‘wise use’ provide helpful guidance to states—the value of which
does not depend on the decisions’ legal status. The same is true of trade suspen-
sions ordered by the CITES Standing Committee against non-compliant states,60
which are only recommendations since the CITES compliance system was estab-
lished through decisions of the parties and is not legally binding.

6. Normative Development by Courts and Tribunals

International environmental law got its start through an arbitral decision: the ar-
ticulation of the so-called principle of prevention in the Trail Smelter decision.61
But, until recently, that was virtually the only judicial decision of note.62
Although negotiated agreements still play the dominant role in the international
environmental process, judicial decisions have become more important both in
elaborating existing norms and in articulating new ones.63 For example, the
International Court of Justice confirmed in its Nuclear Weapons advisory opinion
that the principle of prevention is ‘now part of the corpus of international law,’64
and it then elaborated the principle in Pulp Mills65 and Costa Rica v
Nicaragua,66 holding that it constitutes a duty of due diligence, which requires
states to undertake environmental impact assessments and to notify and consult
with potentially affected states. In addition, international human rights tribunals
have developed an extensive jurisprudence about the relationship between

59
UNEP, Handbook for the Montreal Protocol on Substances that Deplete the Ozone Layer (14th
edn, 2020) <https://ozone.unep.org/sites/default/files/Handbooks/MP-Handbook-2020-English.pdf>.
60
CITES, ‘Countries Currently Subject to a Recommendation to Suspend Trade’ <https://www.
cites.org/eng/resources/ref/suspend.php>.
61
Trail Smelter Case (United States v Canada), reprinted in (1941) 3 UNRIAA 1905.
62
Writing in 1991, Peter Sand commented: ‘[O]ver the past 50 years, there have been only two
inter-governmental dispute adjudications that could even remotely be compared to Trail Smelter—
and even these claims . . . concerned classical questions of water use and flood damage, rather than a
genuine environmental problem.’ Peter Sand, ‘New Approaches to Transnational Environmental
Disputes’ (1991) 3 Intl Env Aff 193.
63
Tim Stephens, International Courts and Environmental Protection (2009).
64
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226 at
241–2, para 29.
65
Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, [2010] ICJ Rep 14 at 79,
para 197.
66
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua),
Judgment, [2015] ICJ Rep 665 at 724, para 168.
14 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW

environmental degradation and human rights.67 For example, the Dutch Supreme
Court found that human rights law imposes an obligation on the Netherlands to
reduce its greenhouse gas emissions.68 Finally, the International Tribunal for the

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Law of the Sea has helped elaborate Part XII of the Convention on the Law of the
Sea,69 concerning the protection of the marine environment.70

7. Private Regulation
Private regulation represents another mode of standard setting that has become
increasingly prominent since 1990. A recent study found that it has grown ‘pre-
cipitously’ from only twelve regulatory schemes established from 1960 to 1990
to 107 established from 1990 to 2010. As the author concludes, ‘[m]ore private
actors are making rules, and more firms, organizations, and individuals are adopt-
ing them.’71
Private regulation can take many forms, including:
. codes of conduct—for example, the chemical industry’s Responsible Care pro-
gram, adopted in response to the Bhopal disaster, or the Equator Principles,
adopted by private financial institutions to manage environmental risks;
. environmental reporting standards—for example, the Greenhouse Gas
Protocol, developed by the World Resources Institute and the World Council
for Sustainable Development; and
. green labelling and certification schemes—for example, the Marine
Stewardship Council’s blue fish label.72

Some of these private regulatory schemes have been developed by environmental

groups, others by business, and others by collaborations between business, non-

67
Eg, Human Rights Committee, Portillo Caceres v Paraguay, Communication no 2751/2016,
UN Doc CCPR/C/126/D/2751/2016 (9 August 2019) (Paraguay’s failure to act to protect people
from pollution violated their right to life). Regional human rights tribunals have been particularly ac-
tive in elaborating environmental rights. See, eg, European Court of Human Rights, Fact Sheet:
Environment and the European Convention on Human Rights (March 2020). Recently, the Inter-
American Court of Human Rights held in an advisory opinion that there is an ‘autonomous’ right to a
healthy environment. State Obligations in Relation to the Environment in the Context of the
Protection and Guarantee of the Rights to Life and to Personal Integrity–Interpretation and Scope of
Articles 4(1) and 5(1) of the American Convention on Human Rights, Advisory Opinion, 15
November 2017, OC-23/17, Inter-Am Ct HR (Ser A) No 23, para 62–3.
68
State of the Netherlands v Urgenda Foundation, Case no 19/00135, Judgment of the Supreme Court
(12 December 2019) <https://uitspraken.rechtspraak.nl/inziendocument?id¼ECLI:NL:HR:2019:2006>.
69
United Nations Convention on the Law of the Sea, 1982, 1833 UNTS 1993.
70
Alan Boyle, ‘The Environmental Jurisprudence of the International Tribunal for the Law of the
Sea’ (2007) 22 Intl J Marine Coastal L 369.
71
Jessica Green, Rethinking Private Authority: Agents and Entrepreneurs in Global
Environmental Governance (2013) at 79, 91–2, Figure 3-1.
72
Philipp Pattberg, ‘The Institutionalization of Private Governance: How Business and Nonprofit
Organizations Agree on Transnational Rules’ (2005) 18 Governance 589.
 TOP TEN DEVELOPMENTS IN INTERNATIONAL ENVIRONMENTAL LAW 15
73
governmental organizations, and sometimes governments. In many cases, pri-
vate regulation has been driven by consumer demand for green products and the
interest of companies to market themselves as green.74 Sometimes it may also be
used by business as a means to forestall public regulation.75 In most cases, the

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regulation is ‘hard,’ in that it is relatively precise and involves third party certifi-
cation to verify compliance, although the degree to which it improves environ-
mental outcomes remains an open question.76

8. Deeper Engagement with Non-State Actors

As non-state initiatives have become more prominent, international environmen-
tal regimes have begun to engage with them more directly. Although non-state
actors have long been involved in the international environmental process, they
have, until recently, operated primarily through governments or as adjutants to
international organizations. The International Union for the Conservation of
Nature, for example, hosts the Ramsar Convention’s Secretariat, it provides legal
support for the Convention on Migratory Species (CMS),77 and its Red List of
Threatened Species informs decisions by CITES and the CMS to protect species.
What is different today is the extent to which non-state actors play an independ-
ent role in the international environmental process.78
The increasing importance of non-state actors in addressing climate change is
the most prominent example. Concern that the UN climate change regime might
not deliver sufficient action by states to reduce emissions has led non-state actors
to undertake a wide variety of initiatives. Sub-national governments have agreed
to link their carbon trading systems. Transnational coalitions of cities have
agreed to common emission reduction targets. Businesses have agreed to take ac-
tion either individually or collectively (for example, on a sectoral basis).
Investors have agreed to disclose the carbon footprint of their portfolios. Public-
private partnerships have agreed to finance research and development, for

73
Kenneth Abbott and Duncan Snidal, ‘The Governance Triangle: Regulatory Standards
Institutions and the Shadow of the State’ in Walter Mattli and Ngaire Woods, eds, The Politics of
Global Regulation: Political Authority in Transition (2009) 44.
74
Benjamin Cashore uses the term, ‘non-state market-driven governance (NSMD)’ to refer to pri-
vate regulation. Benjamin Cashore, ‘Legitimacy and the Privatization of Environmental Governance:
How Non-State Market-Driven (NSMD) Governance Systems Gain Rule-Making Authority’ (2002)
15 Governance 503.
75
Green, supra note 71 at 84–5.
76
Ibid at 84, 91.
77
Convention on the Conservation of Migratory Species of Wild Animals, 1979, 1651 UNTS 333.
78
Jessica Green makes a similar point in distinguishing between non-state actors as ‘agents of the
state,’ with ‘delegated’ authority, and non-state actors exercising ‘entrepreneurial’ authority. Green,
supra note 71.
16 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW

example, of clean energy. Collectively, more than eighteen thousand non-state

actors had listed more than twenty-five thousand climate actions on the Climate
Action Portal as of mid-2020.79

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Traditionally, international environmental agreements did not engage directly
with non-state initiatives such as these; instead, they relied on states to serve as
the transmission belt to promote non-state action. But this has begun to change.
Although the UN climate regime remains state-centric—its legal agreements are
open and apply only to states—it has developed a variety of ways to engage more
directly with initiatives of non-party stakeholders:
. In 2014, the Peruvian and French COP presidencies jointly established the
Lima-Paris Action Agenda to mobilize action by state and non-state actors,
including cities, regions, and other sub-national governments, international
organizations, civil society, and business. As part of this initiative, Peru and
France established the online Non-State Actor Zone for Climate Action portal
(now the Climate Action Portal), which allows non-state actors to register their
climate commitments.
. In 2015, the COP decision adopting the Paris Agreement welcomed the efforts
of non-party stakeholders and decided to appoint two high-level climate cham-
pions to promote, support, and track non-state initiatives.
. At climate COPs, official events are now devoted to transnational initiatives on
various themes such as forests, oceans, and cities.

The result has been to bring non-state actions more directly into the UN climate
change regime. They are no longer treated ‘as an alternative to the UNFCCC pro-
cess, or as merely a helpful addition, but as a core element of its logic of spurring
rising action on climate over time.’80
The Climate Change Action Agenda is perhaps the most notable example of
international environmental law’s greater engagement with non-state actors. But
it is part of a larger development, which began in 2002 in conjunction with the
Johannesburg World Summit on Sustainable Development, when Secretary
General Kofi Annan launched the idea of ‘Type-2 Agreements’ between public
and private actors as a means of implementing the Millennium Development
Goals. It reflects the fact that, in tackling problems that will require fundamental
societal changes, international environmental law needs to mobilize a broader
range of actors rather than acting only through states.

79
The Climate Action Portal (also known as the Non-State Actor Zone for Climate Action
[NAZCA] portal) is an online portal maintained by the UN climate change secretariat to record non-
state commitments.
80
Thomas Hale, ‘“All Hands on Deck”: The Paris Agreement and Nonstate Climate Action’
(2016) 16 Global Environmental Politics 12 at 13–14.
 TOP TEN DEVELOPMENTS IN INTERNATIONAL ENVIRONMENTAL LAW 17
9. International Environmental Law and . . .
Today, the intersections of international environmental law with other areas of
international law have become so prominent that it may be difficult to con-

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ceive that they were only beginning to emerge in 1990 in the run up to the
1992 Rio Conference. Although the 1972 Stockholm Declaration had pro-
claimed a ‘fundamental right to freedom, equality, and adequate conditions of
life, in an environment that permits a life of dignity and well-being,’ little
was done in the intervening years to elaborate the concept of environmental
rights.81 Tellingly, although the inaugural volume of the Yearbook included
the entry ‘human rights obligations’ in the table of contents of its ‘year in re-
view,’ nothing was included under it, and the only mention of human rights
occurred in the discussion of several cases before regional human rights tribu-
nals.82 The entry ‘Trade rules’ similarly was included in the table of contents
without any accompanying report.83
What put the study of ‘international environmental law (IEL) and’ on the map
was the 1991 decision by a General Agreement on Tariffs and Trade panel in the
Tuna/Dolphin case.84 Since then, the study of ‘IEL and’ has exploded. After not
addressing the issue of trade law at all in volume 1, the Yearbook included an en-
tire article on the subject in volume 2.85 Today, huge literatures have developed
both on human rights and the environment and on trade and environment. And
there is increasing interest in the intersections of international environmental law
with other areas of international law such as intellectual property law, investment
law, and migration law. As a result, the goal of ‘mainstreaming’ international en-
vironmental law, which was just beginning to be discussed in 1990,86 has made
substantial headway.

10. Maturation as a Discipline

Finally, international environmental law has matured as a discipline in two
senses. First, it has grown significantly as a field of study. Although a large body
of international environmental law had been created by 1990, the study of

81
Stockholm Declaration on the Human Environment, 1972, 11 ILM 1416 (1972) (Stockholm
Declaration).
82
(1990) 1 YIEL 273.
83
Ibid at 209.
84
General Agreement on Tariffs and Trade, 1994, 55 UNTS 194 (GATT); Restrictions on Imports
of Tuna (Mexico v United States), Panel Report, WT/DS21/R (3 September 1991).
85
James Cameron and Jonathan Robinson, ‘The Use of Trade Provisions in International
Environmental Agreements and Their Compatibility with the GATT’ (1991) 2 YIEL 3.
86
An early book on the subject edited by Phillippe Sands, Greening International Law (1994),
included chapters on environmental security, Bretton Woods, the GATT, and international humani-
tarian law, but not human rights, investment, or intellectual property.
18 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW

international environmental law was still in its infancy. The first law journal dedi-
cated to the subject was founded only two years earlier, in 1988;87 the first trea-
tise did not appear until the following year,88 and the first casebook not until
three years later, in 1994.89 As a result, when I first taught international environ-

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mental law in 1992, I had to put together my own materials. Today, by contrast,
there are multiple casebooks, treatises, and journals on the subject, not to mention
a mountain of scholarship. Indeed, the discipline has become so large that it has
become difficult to follow it as a whole. As a result, many scholars now specialize
in sub-fields within international environmental law, focusing on climate change,
for example, or biodiversity or chemicals.
Second, international environmental law has matured as a distinct field. The
three foundational elements described at the outset had already begun to distin-
guish it from other areas of international law. The developments since 1990 in
standard setting, treaty design, and engagement with non-state actors have built
on this foundation.

IV. WHAT NEXT?

Despite the increasing density of international environmental regulation, con-

cerns remain about real or imagined ‘gaps’ in international environmental law.
One perceived gap is the lack of an overarching legal agreement on the environ-
ment, like the two international covenants on human rights. The Stockholm and
Rio Declarations articulate general environmental principles but are not legally
binding.90 Supporters of the proposed Global Pact on the Environment argue that
it is needed to fill this ‘gap,’ although critics question whether the potential bene-
fits of legally binding principles are worth the cost in negotiating effort, not to
mention the risks that environmental principles would be watered down in the
negotiating process or receive limited acceptance from states.91 Moreover, it is
worth considering that international environmental law has advanced over the
past thirty years largely through the development of detailed treaty regimes, care-
fully tailored to the particularities of an environmental issue, rather than through
one-size-fits-all principles.
A more unambiguous gap in international environmental law is the lack of a
binding instrument on a particular problem. Many such gaps have been filled
over the past thirty years—for example, by the Minamata Convention with re-
spect to mercury. But some gaps remain—most notably, the lack of an
87
Georgetown Journal of International Environmental Law.
88
Kiss and Shelton, supra note 14.
89
Lakshman D Guruswamy, Geoffrey WR Palmer and Burns H Weston, International
Environmental Law and World Order: A Problem-Oriented Casebook (1994).
90
Stockholm Declaration, supra note 81; Rio Declaration, supra note 42.
91
See, eg, Susan Biniaz, 10 Questions to Ask about the Proposed ‘Global Pact for the
Environment,’ Sabin Center for Climate Change Law, Columbia Law School (April 2017).
 TOP TEN DEVELOPMENTS IN INTERNATIONAL ENVIRONMENTAL LAW 19
agreement, binding or otherwise, on marine plastics. In general, however, the big-
gest challenge facing international environmental law is not to develop additional
legal regimes but, rather, to make existing regimes more effective. This should be
the focus of our efforts, so that the next anniversary volume of the Yearbook will

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be able to report that this challenge has been met.