Edited by Samuel Cogolati and Jan Wouters
Chapter 13: Procedure and substance in international environmental law and the protection of the global commons
International environmental law provides especially good terrain for assessing to what extent the law has evolved from a bilateral, consent-based legal system to one that reflects a multilateral approach to the collective protection of global commons. Questions about common goods, and hence obligations designed to further their protection, are at the heart of the field. Indeed, environmental global commons, such as the high seas, fisheries, the atmosphere or the global climate, also relate to ‘classical’ commons issues pertaining to tangible natural resources. However, to get at the attendant legal and conceptual issues, it is necessary to look beyond the global commons themselves and to the legal interests around the protection of which international law has grown. Since no state can lay a claim to the global commons as such, the key question is who owes legal obligations to protect the global commons, to whom, and under what circumstances states have a legal interest in global commons protection, or can invoke a collective legal interest. It is worth asking, then, whether contemporary international environmental law now also looks beyond individual state interests and embraces the global concerns of humanity as a whole. This chapter focuses on the procedural dimensions of international environmental law’s evolution towards the protection of collective or community interests and, by extension, its capacity to protect global commons. It begins by exploring the close conceptual and practical connections between procedural and substantive obligations in international environmental law, focusing on efforts to flesh out the standard of due diligence that is at the core of the harm prevention obligation in customary law. Against the backdrop of this assessment, the significance of treaty-based efforts to address community interests in the protection of global commons can be appreciated. Under the auspices of multilateral environmental agreements (MEAs), international practice has been able to transcend the gaps and constraints of the customary law framework. This chapter suggests that, both under general international law and in the context of treaty-based regimes, the procedural dimensions of international environmental law hold the key to its ability to serve community interests in the protection of the global commons.
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