Is There an International Environmental Constitution?

Transcription

1 Draft: January 11, 2008 VERY PRELIMINARY DRAFT PLEASE DO NOT CITE OR QUOTE Is There an International Environmental Constitution? DANIEL BODANSKY University of Georgia School of Law Presented at the Workshop on Global Constitutionalism: Process and Substance Kandersteg, Switzerland January 18, 2008 Introduction In recent years, there has been a surge in interest among international lawyers in constitutionalism. Writers have variously argued that:! An international constitutional order already exists reflected, for example, in the UN Charter. 1! An international constitutional order is in the process of emerging. 2! An international constitutional order should emerge. 3 The focus on constitutionalism is part of a broader emphasis on the phenomenon of legalization in international relations the idea that international relations is increasingly becoming governed by rules rather than merely power and interests. As with constitutionalism, the focus on legalization has both a descriptive and a normative dimension. Descriptively, scholars have focused on actual processes of legalization: for example, greater reliance on hard sources of law such as treaties, 1 Bardo Fassbender, The United Nations Charter as Constitution of the International Community, 36 Columbia J. Transnat l L. 529 (1998); Christian Tomuschat, International Law as the Constitution of Mankind, in International Law on the Eve of the Twenty-First Century 37 (UN 1997). 2 3 Erika De Wet, The International Constitutional Order, 55 ICLQ 51 (2006). Anne Peters, Compensatory Constitutionalism, 19 Leiden J. Int l L. 579, 582 (2006). 1

2 4 more precise rules, and legalized methods of dispute resolution. Normatively, some scholars have argued for strengthening the rule of law in international relations. 5 The subject of international environmental constitutionalism raises three principal questions. First, as a conceptual matter, what is constitutionalism, and what is its relation to other key concepts such as legalization and legitimacy? Second, as a descriptive matter, to what extent is there an international environmental constitution? (Or, to put it somewhat differently, to what extent does the concept of constitutionalism help us better understand and explain what is actually taking place in international environmental law?) Finally, as a normative matter, would it be desirable to have an international environmental constitution and, if so, why? In other words, what are the benefits of constitutionalism as a mode of governance? What Do We Mean by Constitutionalism? Three Initial Distinctions In considering the current discourse on international constitutionalism, it is useful to draw several distinctions. First, we need to distinguish constitutionalism as a mode of political governance from constitutionalism as an intellectual movement. Constitutionalism as an 6 intellectual movement within international law is interesting in its own right. What accounts for the increasing focus among international lawyers on constitutional governance? Does it reflect actual changes in international relations an actual growth in constitutionalism as a mode of governance? Is it a reaction to increasing concerns about fragmentation and illegitimacy in international law an attempt to put international law on a stronger normative footing? Can it be explained in terms of European lawyers extrapolating or generalizing from the EU experience to global politics more generally? Does it serve an ideological function? Does it represent a power play by international lawyers a means of self-aggrandizement by giving greater preeminence to judicial rather than political processes? Or is it simply 4 Judith Goldstein et al., Legalization and World Politics, 54 Int l Org. 385 (2000) (special issue on legalization). 5 Jeremy Waldron, The Rule of International Law, 30 Harvard J. L. & Pub. Pol y 15 (2006). 6 See, e.g., Jeffrey L. Dunoff, Constitutional Conceits: The WTO s Constitution and the Discipline of International Law, 17 EJIL (2006) (analyzing constitutionalism as an intellectual movement). 2

3 academic talk a way of giving a fashionable label to more prosaic features of international law? Although these questions are interesting, they are not the primary focus of this paper. Instead, we will concentrate on constitutionalism as a potential mode of environmental governance. Second, we need to distinguish between a constitution, on the one hand, and constitutionalism more generally. A constitution consists of the fundamental rules governing a political community, generally but not always in written form. In contrast, constitutionalism refers to a broader set of qualities or values generally 7 associated with constitutions limited government, separation of powers, human rights protections, and so forth what Koskeniemmi has referred to as a 8 constitutional mindset. Because constitutions and constitutionalism are distinct, it is possible to have, on the one hand, constitutions without constitutionalism (as was true in former communist countries and in some developing countries), and, on 9 the other, constitutionalism without a constitution. Third, we need to distinguish between the general concept of a constitution and 10 particular conceptions of constitutions. The general concept of a constitution that is, a higher body of law, typically of an enduring nature, focusing on foundational matters of political governance allows a wide variety of more specific conceptions, 11 which define constitutions in narrower ways. For example, Western liberal constitutionalism emphasizes such important features as democracy, separation of powers, checks and balances (including, in particular, judicial review), and protections of fundamental civil and political rights. This more particular conception of a constitution has many virtues, but its features are not intrinsic to the general concept of a constitution. 7 8 Peters, Compensatory Constitutionalism, supra, at 582. Martti Koskenniemi, Constitutionalism as Mindset: Reflections on Kantian Themes about International Law and Globalization, 8 Theoretical Inquiries in Law 9 (2007). 9 See generally Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law (2d ed. Foundation Press 2006) (including chapters entitled constitutions without constitutionalism and constitutionalism without a constitution ). 10 Both Rawls and Dworkin make use of this distinction between concepts and conceptions. See John Rawls, A Theory of Justice (Harvard Univ. Press 1971); Ronald Dworkin, Law s Empire (Harvard Univ. Press 1986). 11 Jeff Dunoff masterfully surveys the range of conceptions of constitutionalism put forward by international trade lawyers in his article, Constitutional Conceits: The WTO s Constitution and the Discipline of International Law, 17 EJIL 647 (2006); see also Joel Trachtman, The Constitutions of the WTO, 17 EJIL 623 (2006), 3

4 The Concept of a Constitution How, then, should we understand the concept of a constitution? At the most general level, a constitution consists of the fundamental rules of a political 12 community. These rules can be of two types. First, constitutions set forth the procedural rules that establish the basic political institutions of a community and define how other norms are created, interpreted, changed and enforced what H.L.A. Hart referred to as secondary rules and what Fassbender calls metarules. 13 Second, constitutions may, in addition, contain substantive rules, such as basic human rights protections. Although these substantive rules are not as obviously constitutive as the procedural rules that establish the basic framework of government, they also help constitute a political community by defining its core values. In his excellent article, Constitutionalism: An Analytic Framework, Thomas 14 Gray notes that constitutions can vary along many dimensions. They can be enacted (as in the case of the U.S. constitution) or arise through a customary process (as in 15 the case of the British constitution). They can have an extralegal status, or have the 12 See generally K.C. Wheare, Modern Constitutions (2d ed., OUP 1966); cf. Anne Peters, Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures, Leiden J. Int l L. 579, 581 (2006) (defining a constitution as the sum of basic (materially most important) legal norms which comprehensively regulate the social and political life of a polity ). Because a constitution consists of the rules of a political community, it does not simply consist of a description of how a community is, in fact, governed, but necessarily has a normative aspect. See Thomas st Cottier and Maya Hertig, The Prospects of 21 Century Constitutionalism, 7 Max Planck Ybk. U.N. L. 261, 279 (2003) (distinguishing descriptive and normative concepts of a constitution). It should be noted that Cottier and Hertig s distinction between descriptive and normative differs from the usage in this paper: for them, the term normative refers simply to the rule-like character of constitutions. 13 H.L.A. Hart, The Concept of Law (OUP 1961); Bardo Fassbender, The Meaning of International Constitutional Law, in R. St. John MacDonald & Douglas M. Johnston, eds., Toward World Constitutionalism: Issues in the Legal Ordering of the World Community, at 842 (Martinus Nijhoff 2005). See also Alfred Verdross, who saw an international constitution as establishing "those norms which deal with the structure and subdivision of, and the distribution of spheres of jurisdiction in a community. Quoted in Fassbender, supra at Thomas Gray, Constitutionalism: An Analytic Framework, in J. Roland Pennock and John W. Chapman, Constitutionalism 189, at (NYU Press 1979), 15 Of course, this dichotomy is an over-simplification, since in most cases constitutions involve a combination of enacted and customary norms. For example, although the U.S. constitution is primary enacted, some of its norms have had a customary character (the two-term limit on the presidency, for example, arose through a customary process, before being ultimately enacted through the Twenty-Second Amendment). Conversely, while much of the British constitution arose through a customary process, Her 4

5 status of ordinary or fundamental law. They can be enforced through political or judicial processes. They can be federal, unitary or confederate. And they can be defined narrowly to include just the formal rules in a particular document, or more broadly to include all of the fundamental rules of a political community, both formal and informal, written and unwritten. 16 Nevertheless, constitutions typically share a number of features: First, they aim primarily to regulate governmental rather than private actors they represent a type of public rather than private law. Most attempts to adopt constitutional limits on private conduct such as the Twenty-First Amendment in the United States, which prohibited the sale of alcoholic beverages have been unsuccessful. 17 Second, because constitutions address fundamental issues and are intended to provide a stable framework of governance, of indefinite duration, they typically are entrenched they are more difficult to change than ordinary laws. In some cases, entrenchment is formalized by requiring special procedures for amendment, such as super-majority voting or even consensus. In other cases (as, for example, in the case of the British constitution), the entrenchment is informal. It represents a social norm rather than a legal requirement. In either case, entrenchment serves to take constitutional issues outside the zone of normal politics. Third, by the same token, constitutions typically take precedence in case of conflict with other norms they represent a hierarchically superior form of law, 18 which trumps ordinary legislation. Analytically, superiority and entrenchment are distinct a norm could be superior but not entrenched, or entrenched but not Majesty s Stationery Office, as of 1995, listed 38 Acts of Parliament in its volumes on constitutional law, including the Articles of Union with Scotland and Northern Ireland. See S.E. Finer, Vernon Bogdanor & Bernard Rudden, On the Constitution of the United Kingdom, in Comparing Constitutions (2d rev. ed., OUP 1995). 16 Wheare, Modern Constitutions, supra (distinguishing broad and narrow meanings of a constitution ) The Thirteenth Amendment to the U.S. Constitution, outlawing slavery, is a notable exception. In Roman law, the constituo was imperial legislation that transcended all other law. Douglas M. Johnston, World Constitutionalism in the Theory of International Law, in Ronald St. John Macdonald and Douglas M. Johnston, eds., Towards World Constitutionalism: Issues in the Legal Ordering of the World Community 3, 17 (Martinus Nijhoff 2005). 5

6 superior. But generally, constitutions share both features, because both derive from the same source: the fundamental nature of the rules contained in a constitution. Of course, these features are not shared by all constitutions they are not necessary conditions of a constitution. Most constitutions have a special legal status, for example, but some have the status of ordinary statutes, and indeed, in some respects, the British constitution does not even have a legal character, let alone a supra-legal character. Instead, the concept of a constitution is better seen as a family 19 resemblance, reflecting various features that systems of governance that we characterize as constitutional share to greater or lesser degrees. For this reason, attempts to define the necessary and sufficient conditions of constitutionalism, and then to measure systems of governance that aspire to the status of constitutionalism against these defining features, seem misguided. Instead, we need to employ a less categorical approach in considering whether an international environmental constitution has emerged. What Functions Do Constitutions Serve? Constitutions are sometimes depicted primarily as limitations on public power. 20 But they, in fact, serve a dual function, both constituting and constraining power. 21 As the term constitution suggests, constitutive rules defining the basic values, institutions and decisionmaking processes of a political community are central to the 22 concept of a constitution. In modern liberal constitutions, substantive limits are also common (such as human rights protections), but it is worth remembering that, in the United States case, the Bill of Rights was not part of the original constitution. 23 In its original form, the US constitution was almost entirely constitutive, defining 19 Gray, Constitutionalism: An Analytic Framework, supra, at For a classic articulation of the view that constitutions serve as limitations on government, see Giovanni Sartori, Constitutionalism: A Preliminary Analysis, 56 Am. Pol. Sci. Rev. 853 (1962). 21 See Graham Maddox, A Note on the Meaning of Constitution, 76 Am. Pol. Sci. Rev. 805 (1982) (challenging Sartori s view, and arguing instead that constitutions are a combination of...power and its control ). 22 The Latin term constituere means to set up, establish, construct. See id.. at The Contracts Clause is one of the comparatively few substantive rights provided for in the U.S. Constitution itself. 6

7 the basic structure of government in particular, the separation of powers among the three branches of the federal government and the relationship of the federal government to the states. It was adopted not so much to limit public power the federal government under the Articles of Confederation had few powers to begin with but rather to create a new government with stronger powers. This is true of most constitutions: they are conceived as creative (even revolutionary) instruments, either establishing a new political order or providing a fresh start for an existing one. Nevertheless, the common emphasis on the constraining nature of constitutions is well-founded, since a central feature of constitutional governance is that it is limited. This is most obvious in the case of constitutions that impose substantive constraints on power for example, by prohibiting ex post facto laws or by protecting human rights. But even when a constitution is purely constitutive, it is still constraining, since the procedural rules set forth in a constitution do not simply create institutions, but also define and thereby limit those institutions, in much the same way that the rules of a game both create the game and limit the moves that can be made. By limiting governmental authority, constitutions serve an important legitimating function. A constitution creates, as John Adams put it, a government of laws, not of men (or in the case of international law, not of states). In this respect, 26 constitutionalism is closely related to legalization. But it goes beyond legalization by limiting the legislature itself through a body of rules that are fundamental, entrenched and hierarchically superior to ordinary law. 27 At the same time, the limits imposed by constitutions are often pliable in ways that ordinary laws are not. Because they establish ongoing systems of governance, intended to persist indefinitely into the future but difficult to amend, constitutions must be framed at a broad level of generality, which allows considerable flexibility, 24 Massachusetts Constitution, Declaration of Rights, art. XXX (1777). The phrase was originally used by Adams in a 1774 essay Peters, Compensatory Constitutionalism, supra, at 583. The relationship between constitutionalism and legalization is even closer to the extent that the rule of law is conceived as having substantive as well as procedural aspects. 27 Philip Allott, Intergovernmental Societies and the Idea of Constitutionalism, in Jean-Marc Coicaud and Veijo Heiskanen, eds., The Legitimacy of International Organizations 69, at 90 (UNU Press 2001) (characterizing constitutionalism as more than the rule of law and less than natural law ). Particular conceptions of constitutions may contain additional legitimating features, such as separation of powers and human rights protections. 7

8 if they are to avoid becoming outdated. This open-ended quality of constitutions is manifested in the doctrine of implied powers which is stated explicitly in the necessary and proper clause of the US Constitution and has been inferred in the case of international organizations as well as in the more spacious approach often employed to interpret constitutions as compared to ordinary laws. 28 Constitutionalism in International Law Recent efforts to analyze international law in constitutional terms represent one of several attempts to reconceptualize international governance. Another related 29 effort is the research project on global administrative law. Both draw on domestic legal models to identify common threads in emerging international institutional arrangements as well as to prescribe a model for the future development of these governance arrangements. When international lawyers argue that international law now has a constitutional aspect, what exactly do they mean? The answer is not always clear, since the concept of constitutionalism has a protean quality, and is often discussed in vague and changeable ways. At the most basic level, claims about constitutionalism call attention to the constitutive function of many international agreements, which create ongoing systems of governance. The treaties establishing international organizations are 28 Cf. John Marshall s famous phrase in McCulloch v. Maryland, 17 U.S. 316 (1819), we must never forget that it is a Constitution we are expounding. See also Benjamin Cardozo, The Nature of the Judicial Process (1921) ( A constitution states or ought to state not rules for the passing hour, but principles for an expanding future. ). It should be noted that many leading constitutional scholars, particularly in the United States, reject the view that constitutions should be interpreted in a more teleological manner than ordinary statutes, and instead advocate an originalist or strictly textualist approach. As Jan Klabbers notes, the tension between a constitution s constraining function and its open-ended, living nature is nicely captured in Wheare s observation that courts may choose to treat a constitution as a living instrument, but they must treat it first of all as a constitution. Jan Klabbers, Constitutionalism Lite, 1 Int l Org. L. Rev. 31, 52 n.101 (2004) (quoting K.C. Wheare, Federal Government (1947)). 29 Benedict Kingsbury, Nico Krisch, Richard B. Stewart and Jonathan B. Weiner, eds., Symposium: The Emergence of Global Administrative Law, 68 L. & Contemp. Problems 1 (2005); Nico Krisch and Benedict Kingsbury, eds., Symposium: Global Governance and Global Administrative Law in the International Legal Order, 17 EJIL 1 (2006). 8

9 30 examples of constitutions in this thin sense. They establish institutions, set forth the rules that guide and constrain these institutions, and entrench these rules through their amendment procedures. But characterizing international law in constitutional terms is usually intended not merely to call attention to the constitutive function of many international agreements. Rather, it serves as a short-hand for a stronger set of claims some putatively descriptive, others more openly normative. The descriptive claims have the general form international law has some set of features characteristic of constitutional governance, and therefore represents an emerging constitutional order. For example, international law is developing a constitutional character because it represents the law of an emerging international community, with shared responsibility and solidarity, and has a higher status, not dependent on state consent. 31 In this regard, the UN Charter is often cited as the preeminent example of an emerging constitutional order in international law. As many have argued, the UN Charter shares some of the general features of a constitution: 32! It articulates the fundamental rules of the international system (such as the principles of sovereign equality and self-determination, the prohibition on the use of human force, and the obligation to promote and respect human rights).! These fundamental rules represent more than simply bargains negotiated by states. Instead, they represent core values of an emerging international 30 See Joseph Raz, On the Authority and Interpretations of Constitutions: Some Preliminaries, in Larry Alexander, ed., Constitutionalism: Philosophical Foundations 152, at 153 (Cambridge Univ. Press 1999) (distinguishing thick and thin senses of constitutions). 31 st See, e.g., Cottier and Hertig, The Prospects of 21 Century Constitutionalism, supra, at ; De Wet, The International Constitutional Order, supra. 32 See, e.g., Pierre-Marie Dupuy, The Constitutional Dimension of the Charter of the United Nations, 1 Max Planck Yearbook of United Nations Law 1 (1993); Bardo Fassbender, The United Nations Charter as Constitution of the International Community, 36 Columbia J. Transnat l L. 529 (1998). If the UN Charter is a constitution, however, it is a quite limited one, since it does not create institutions with general law-making or enforcement powers, and many of the most fundamental secondary rules of international law are found in other instruments, such as the Vienna Convention on the Law of Treaties and the ILC Articles on State Responsibility. Moreover, it does not have many of the features of the Western liberal conception of a constitution, including democratic decisionmaking, a strong separation of powers, and judicial review. See Jose Alvarez, Constitutional Interpretation in International Organizations, in Jean- Marc Coicaud and Veijo Heiskanen, eds., The Legitimacy of International Organizations 104 at (UNU Press 2001) (describing unconstitutional aspects of the UN Charter). 9

10 political community, which are outside of politics and thus no longer dependent on the capriciousness of sometimes well-meaning, sometimes egoistic states. 33! The rules of the UN Charter are intended to provide a stable framework of governance, of indefinite duration. Accordingly, they are entrenched, requiring for amendment ratification by two-thirds of the member states, including all of the permanent members of the Security Council.! Finally, Article 102 makes the Charter hierarchically superior to other treaties. Similar types of claims are made for the two other leading candidates for 34 constitutional status in international law: the WTO Uruguay Round Agreements and 35 the UN Convention on the Law of the Sea. In contrast to these descriptive claims, normative claims regarding constitutionalism in international law start from the common premise that constitutionalism is desirable, but then proceed in different ways, depending on the degree to which they view (as a descriptive matter) international law as already having a constitutional character.! On the one hand, to the extent that international law has already developed into a constitutional order, then this has certain normative implications. For example, it gives international law greater legitimacy. Or it means that Fassbender, The Meaning of International Constitutional Law, supra, at 142. See Deborah Z. Cass, The Constitutionalization of the World Trade Organization: Legitimacy, Democracy and Community in the International Trading System (OUP 2005); Ernst-Ulrich Petersmann, Constitutional Functions and Constitutional Problems of International Economic Law (Westview 1991); John H. Jackson, The WTO Constitution and Proposed Reform: Seven Mantras Revisited, 4 J. Int l Econ. L. 67 (2001). As Dunoff has explored, writings on WTO constitutionalism focus on different aspects of the WTO regime: its general institutional structure, its normative commitments, and its mechanisms of judicial review. Dunoff, Constitutional Conceits, supra. 35 See Shirley V. Scott, The LOS Convention as a Constitutional Regime for the Oceans, in Alex G. Oude Elferink, ed., Stability and Change in the Law of the Sea: The Role of the LOS Convention, at 9 (Brill 2005). At the end of the negotiations, the president of the negotiating conference, Tommy Koh of Singapore, argued that UNCLOS represented a constitution for the oceans because of its comprehensiveness, wide participation, coherence with the wider system of international governance, and promotion of global interests and equity. See David Anderson, Constitutionalism and the Law of the Sea (unpublished manuscript) (noting that Koh s term has an element of hyperbole or metaphor ). 10

11 international law should be seen as superior to national law, or should be interpreted liberally, using a teleological approach, as befits a constitution. 36! On the other hand, to the extent that the international legal system still falls short of a constitutional order, it needs to move in the direction of greater constitutionalization. Even the United Nations Charter, for example, does not include many of the central features associated with the Western liberal conception of constitutionalism, such as democratic decisionmaking, a separation of powers and judicial review. In order to become more legitimate and effective, and thereby compensate for the declining authority of states, the international legal system needs to become more constitutional for example, by limiting public power through checks and balances, human 37 rights protections, and judicial review, or possibly through new constitutional structures appropriate to multilevel governance and shared sovereignty. 38 Each of these claims is debatable. But rather than focus on their merits, I want to focus on the more general question: What benefit is provided by characterizing these claims in constitutional terms? Or to put the question differently, what analytic work does the concept of constitutionalism do? What additional insights does it generate? Consider, for example, the descriptive claims regarding constitutionalism. Why can t these stand on their own bottom, so to speak? Why can t we consider whether international law is a comprehensive system, or is developing a nonconsensual character, or reflects the law of an emerging international community, without regard to the vexing question of whether it has assumed a constitutional character? For example, having described the UN Convention on the Law of the Sea as an entrenched, stable system of governance, of indefinite duration, intended to address ocean issues comprehensively, with aspirations for universal membership, 36 Tetsuo Sato, Evolving Constitutions of International Organizations (Springer 1996); cf. Laurence Helfer, Constitutional Analogies, 37 Loyola L.A. L. Rev. 193, 204 ( ) (distinguishing WTO dispute settlement from constitutionalism because of its less teleological method). 37 Peters, Compensatory Constitutionalism, supra. On judicial review, in particular, see Erica De Wet, Judicial Review as an Emerging General Principle of Law and Its Implications for the International Court of Justice, 47 Neth. Int l L. Rev. 181 (2000); James Crawford, Marbury v. Madison at the International Level, 36 George Washington Int l L. Rev. 505 (2004). 38 st Cottier and Hertig, The Prospects of a 21 Century Constitutionalism, supra, at 299ff (describing a five story constitutional house). 11

12 39 what does the label constitution contribute? Similarly, with respect to the normative claims, why can t we consider whether judicial review or greater human rights protections would be a good thing, without introducing the concept of constitutionalism? What, if anything, does the concept of constitutionalism add to our analysis? To my mind, the constitutionalist movement in international law has not sufficiently addressed this question. One possible answer is that examining international law through the lens of constitutionalism helps to focus attention on characteristics of the international legal system that might otherwise be overlooked or insufficiently appreciated. If the different features of a constitutional order (entrenchment, superiority, judicial review, etc.) are typically correlated, then the presence of one constitutional feature may suggest the presence of others. The constitutional lens may, in this way, help us better understand contemporary developments in international law. This argument is coherent, but its persuasiveness rests, in the end, on the degree to which the constitutionalist lens succeeds in allowing us to see international law in a different and useful way. A related argument in favor of analyzing international law in constitutional terms is that the descriptive claims regarding constitutionalism have normative implications. If the international trade regime has achieved a constitutional status, for example, then it should provide human rights protections. Or to the extent that the UN Charter serves as a constitution for the international community, then it can legitimately make demands on non-member states and even non-state actors; it should be able to develop as a living instrument, including through dynamicevolutionary interpretation; it should be open to all states; it should provide for 40 judicial review; or it should have direct effects in domestic law. In contrast to the first argument, which rests on the descriptive assumption that the different features of constitutionalism are, in fact correlated, this argument rests on the normative view that these different features should go together so the presence of some constitutional features implies the need for others. While, as a theoretical matter, this might be true, here the constitutional lens does more to obscure than to clarify. In my view, we would be better off directly considering the arguments in favor of judicial review, or human rights protections, or implied powers, or direct effects or 39 See Scott, The LOS Convention as a Constitutional Regime for the Oceans, supra. 40 Fassbender, The United Nations Charter as Constitution of the International Community, supra, at

13 whatever normative implications are drawn from the supposedly constitutional status of international law without wrapping these arguments in a constitutional gauze, which merely makes it more difficult to focus on the possible normative relationships between different features of the international legal system. A final, more general, argument in favor of the constitutionalist lens is that, because constitutionalism has become the touchstone of legitimacy, the constitutional 41 status of international matters deeply. To put it crudely, if constitutionalism is a good thing, then it is important to determine whether international law has become a constitutional order, since if the answer is yes this syllogistically implies that international law is a good thing as well. Like the previous argument, this argument makes logical sense, but founders on the complexity and vagueness of the concept of constitutionalism. Rather than attempt to ground the legitimacy of international law in its constitutional status, we would do better to unpack the concept of constitutionalism into its component elements (democracy, separation of powers, judicial review, and so forth), and consider the proper role of each of these ideas in the distinctive context of international governance. Is There an International Environmental Constitution? Is there an international environmental constitution? As the preceding discussion makes plain, the answer depends in large measure on what we mean by the term constitution. Certainly, many international environmental agreements have a constitutional dimension in the limited sense that they constitute or create new 42 international regimes. The UN Framework Convention on Climate Change, for example, or the Montreal Protocol, or the International Whaling Convention do not simply elaborate a set of static commitments by states. Rather, they are dynamic arrangements, which establish ongoing systems of governance to address particular issue areas like climate change, ozone depletion or whaling. Although these treaties differ in their particulars, each performs basic constitutive functions, including: 41 See Peters, Compensatory Constitutionalism, supra; Klabbers, Constitutionalism Lite, 1 Int l Org. L. Rev. 31, at (2004). 42 Peters refers to this as micro-constitutionalist analysis. Peters, Compensatory Constitutionalism, supra, at

14 elaborating general objectives and principles to guide the evolution of the regime, specifying decision-making rules, and establishing compliance procedures. Consider, for example, the 1946 International Convention for the Regulation of Whaling (ICRW). In contrast to earlier whaling agreements, which had consisted 43 solely of specific regulatory limits on whaling, the 1946 Convention served a constitutive function as well, establishing the International Whaling Commission (IWC) and authorizing it to adopt regulations on an ongoing basis by a three-quarter 44 majority vote, which are set forth in a schedule to the Convention. The particular regulatory limits imposed by the 1946 Convention are now long forgotten. But the ongoing system of governance it established has proven remarkably robust, eventually leading to the adoption by the IWC of a moratorium on commercial whaling in 1982, which continues to this day. Many other environmental treaties serve a constitutive as well as a regulatory function. For example, the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer not only set forth targets and timetables to reduce the use of certain ozone-depleting substances; it also established procedures to amend and adjust these regulatory requirements This has led to a progressive tightening of the reduction schedule for CFCs and halons, the two classes of chemicals originally addressed, as well as the inclusion of numerous other ozone-depleting substances in the Protocol s regulatory scheme, including carbon tetrachloride, methyl chloroform and HCFCs. As constitutive instruments, treaties such as the ICRW and the Montreal Protocol are typically just the tip of the normative iceberg. The majority of the norms in regimes such as these are created not by the treaty itself, but through the more flexible and dynamic governance arrangements created by the treaty. International environmental regimes usually distinguish between their constitutive elements and non-constitutive elements by placing them in different instruments. The constitutive elements establishing the basic institutions and decisionmaking procedures of the regime are included in the treaty text itself, which like a constitution is difficult to amend. Meanwhile, the regulatory elements are placed in protocols, annexes, schedules, or decisions of the parties, which are easier to change. 43 The 1931 Whaling Convention, 3 Bevans 26, TS 880, prohibited the taking of right whales, as well as immature whales and female whales accompanied by calves or suckling whales. 44 International Convention on the Regulation of Whaling, arts. III, V. 14

15 Nevertheless, although multilateral environmental agreements serve as constitutions of the regimes they create, they are constitutions in only a thin rather than a thick sense. They do not serve the stronger functions often ascribed to constitutions by international lawyers for two related reasons. First, they do not typically create systems of governance with significant independence from states. Multilateral environmental regimes addressing climate change, ozone depletion, hazardous chemicals or endangered species are still very much state-driven. States generally retain the right of exit, by withdrawing from the 45 treaty. The secretariats established by multilateral environmental agreements are, in most cases, comparatively weak, and it is unclear whether the agreements even establish international organizations with an independent legal personality. 46 Although non-state actors play a significant role in the standard-setting and compliance process, this influence is generally extra-constitutional, because it takes place through informal processes, outside of the formal arrangements provided for by the regime s foundational instrument. Second, multilateral environmental agreements do not provide for judicial review. As a result, the constraints imposed by these agreements are primarily political in nature. Consider, for example, the International Whaling Convention. In theory, the Convention sets limits on how the International Whaling Commission may operate. According to the Convention, the IWC should act on a scientific basis, and should have as its purpose the orderly development, not the abolition, of the 47 whaling industry. Nevertheless, although Japan has raised colorable claims that the moratorium on commercial whaling adopted by the IWC more than two decades ago is inconsistent with both of these provisions, there is no way that Japan can bring a legal challenge to enforce the Convention s constitutional limitations on the IWCs powers because the Convention does not provide for any process of judicial review. 45 See Helfer, Constitutional Analogies, at (discussing role of exit in international treaty design). 46 This issue has been the subject of dispute in the case of the UN Framework Convention on Climate Change. See generally Robin Churchill and Geir Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law, 94 AJIL 623, (2000.) 47 International Convention for the Regulation of Whaling, preamble, Art. V(2)(c). 15

16 As the whaling case illustrates, international environmental agreements are better 48 at constituting than constraining. They serve primarily to create new political arenas, rather than to take issues outside of politics. A dramatic illustration of this point was provided in the ozone regime in 1990, when the London Amendments to the Montreal Protocol were adopted. Because the Montreal Protocol does not set forth any rule concerning its own amendment, the relevant rule is found in its parent instrument the Vienna Convention for the Protection of the Ozone Layer which provides that amendments of protocols must be ratified by two-thirds of the protocol 49 parties in order to enter into force. Despite this constitutional constraint, however, when the parties to the Montreal Protocol adopted the London Amendments in 1990, they decided to ignore this rule, and provided instead (in the London Amendments themselves) that the Amendments would require ratification by only twenty states in order to enter into force. In essence, the attitude of states was this is our treaty, and if we want to adopt an amendment, we can do so using whatever rules we like hardly an attitude characteristic of those who view a legal order as constitutional in character. If multilateral environmental agreements qualify as constitutions at all, they are at most constitutions with a little c rather than a big C. They are constitutions in the thin sense that they establish ongoing systems of governance and default rules for how those systems of governance will operate. But they are not constitutions in the fuller sense of establishing institutions with significant independence from states, or of taking issues outside the zone of politics by imposing effective constraints, either procedural or substantive, on how international environmental institutions behave. Nor do they establish a constitutional order for international environmental law as a whole; they establish a balkanized system, with a multiplicity of regimes, each with their own constitutions. In essence, they contribute to, rather than counteract, the phenomenon of fragmentation. 50 Is there an international environmental constitution more generally, which applies to international environmental law as a whole? Certainly, international environmental law has a number of characteristic features, which serve to distinguish 48 Jan Klabbers makes the same point about international organizations more generally. Klabbers, Constitutionalism Lite, at Vienna Convention for the Protection of the Ozone Layer, art. 9(5). I use the word phenomenon rather than problem deliberately, since it is not clear to me that fragmentation is problematic in the international environmental context. Cf. Martti Kosenniemi and Päivi. Leino, Fragmentation of International Law: Postmodern Anxieties? 15 Leiden J. Int l L. 553 (2002). 16

17 51 it from classical international law widespread use of the framework convention/protocol approach, rapid amendment procedures, a distinctive system of 52 treaty bodies, and non-compliance procedures that are more political than judicial 53 in nature. But these distinctive features of international environmental law do not amount to a constitution in any meaningful sense of the term. They do not establish unitary requirements with regard to the creation and operation of international environmental law secondary rules about how international environmental law is developed and enforced. (Indeed, some prominent features of international environmental law such as the use of politically-oriented noncompliance procedures cut strongly against the concept of constitutionalism.) Rather, they represent a toolbox that states can use when addressing new problems, much like a carpenter s toolbox of hammers, screwdrivers, drills, and measuring tapes. We do not consider the carpenter s collection of instruments to be a constitution for carpentry. Neither is the toolbox of international environmental lawyers a constitution of international environmental law. There may be a more promising candidate to fill the role of an international environmental constitution: the general principles of international environmental law, such as the polluter-pays principle, the precautionary principle, the principle of common but differentiated responsibility, and the principle of sustainable 54 development. Do these general principles represent a core value system for the international community, which might be analogized to a constitution? Perhaps. But if they do represent an incipient international environmental constitution, they are a weak and vague one. Although norms such as the precautionary principle and the principle of sustainable development serve to structure international discourse on environmental problems, they have so many different meanings that they exercise little real constraint on the behavior of states or 51 Daniel Bodansky, Does One Have to Be an International Lawyer to Be an International Environmental Lawyer?, 100 Proc. Am. Soc. Int l L. 303 (2006); Daniel Bodansky, Jutta Brunnée and Ellen Hey, International Environmental Law: Mapping the Field, in Oxford Handbook of International Environmental Law 1 (2007). 52 See Churchill and Ulfstein, Autonomous Institutional Arrangements in Multilateral Environmental Agreements, supra. 53 Marti Koskenniemi, Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol, 2 Ybk. Int l Envtl. L. 123 (1992). 54 De Wet, International Constitutional Order, supra, at

18 55 international institutions. And even to the extent that they do serve a constitutional function by articulating a set of overarching, shared values, this is only one of several constitutional functions. International environmental law still lacks a general system of governance a world environmental organization, for example which could provide a common framework for the multiplicity of existing international environmental regimes. Conclusion Although states face shared problems such as climate change and loss of biological diversity, which require a collective response, they still have very different interests and values. These differing interests and values in part account for the weak commitment of states to constitutionalism and indeed even legalization, as illustrated by the refusal by the International Whaling Commission to lift its moratorium on commercial whaling, the reliance in multilateral environmental regimes on nonjudicial compliance procedures, and the adoption of the London Amendments to the Montreal Protocol by a procedure at variance with the regime s requirements. In today s world, at least in the environmental arena, sovereign states prefer to retain significant flexibility, rather than precommit to constitutional constraints. They remain far from developing the sense of community that underlies constitutional governance. Over the long haul, it is unclear whether this state-driven approach will be sufficient to address international environmental problems. As I have argued elsewhere, addressing problems such as climate change will likely require the 56 creation of international institutions with greater authority. Such a development could push international environmental law in the direction of greater constitutionalization, to address concerns about the legitimacy of new, more powerful institutions. But any transformation of this kind still lies in the future. For the 55 See, e.g., Christopher D. Stone, Is There a Precautionary Principle? 31 Envtl. L. Rep (2001); Daniel Bodansky, Deconstructing the Precautionary Principle, in D.D. Caron and H.N. Scheiber, eds., Brining New Law to Ocean Waters, at 381 (Brill 2004). 56 Daniel Bodansky, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law, 93 AJIL 596 (1999). 18

19 moment, international environmental law remains a series of commitments by states, rather than a constitutional order. 19