Environmental Multilateralism and its Discontents
Book project by professor Christina Voigt (Routledge, forthcoming 2019).
This project deals with the recourse to international courts in the interest of protecting or utilising global public environmental goods.Given the intricate relationship between preserving the sovereign autonomous policy space while addressing issues of common importance and concern, it is not surprising that multilateral environmental solutions are not the quickest, most efficient or decisive in bringing about normative and behavioral change. But in the absence of an attractive, effective, legitimate and feasible alternative, they are, arguably, the best option.
In the face of the limitations of Multilateral Environmental Agreements (MEAs), (some) states might voice discontents and resort to various other means of state behaviour: they could take other states to court over non-compliance with MEAs, they might openly breach MEAs with no particular consequences or they could implement unilateral measures to compel non-complying states or non-members to implement particular policies.
Some states will implement their obligations and comply with the agreement. Other states may, for economic or other reasons, choose to withdraw or to simply ignore the obligations set out in the agreement. Depending on the compliance mechanism at hand, this might be met with some criticism – but rarely implies any punitive consequences.
States may also choose to take other states to court over non-compliance with international agreements. One example was the case brought by Australia against Japan before the International Court of Justice (ICJ), concerning Japans alleged non-compliance with the International Convention on the Regulation of Whaling. A court can then be seen as an interpreter and ‘clarifier’ of the vague terms of international treaty as well as a ‘time guard’ of the agreement, reading it in the light of contemporary challenges and legal developments since its inception. However, the mere fact that states take other states to court over compliance issues with MEAs also tells something about the limits of such MEAs.
This project will analyse when and under what conditions (which legal claims) states seek recourse to international courts based on rights, entitlements or obligations contained in MEAs. It is hoped that this analysis provides insights into to the relationship between normative content of those MEA´s and the likelihood (and possible outcome) of disputes between states. The hypothesis is that MEAs contain a particularly delicate balance between states´ autonomous interests and the protection of collective interests, expressed mainly in flexible and ambiguous terms, that the determination of a breach of treaty obligations or an internationally wrongful act becomes difficult, if not impossible. While this insight is not new, the character of MEAs is changing towards even greater deference to dynamism, pragmatism and sovereign autonomy, caused by the emergence of a more balanced global power structure due to the rise of the Global South and decline of the dominance of the West/North. In the light of these developments, the likelihood of recourse to international courts might further decline.