The future of international environmental law - Introduction to International Environmental Law - page 185

1 Collective decision mechanisms, by which humankind has the fl exibility to
make scientifi cally based decisions in order to avert environmental problems.
2 An extensive understanding of who is able to participate in international
environmental protection, and how.
3 Acceptance of the principles and mechanisms that give access to decision-
making to those who may be affected by the decision, and the requirement
that all human activity should be environmentally sustainable.
4 Strict liability for environmental damage. The operator must compensate
for any harm caused to the environment without the affected party
having to prove the operator's negligence. Strict liability also has a pre-
ventive function. Operators who know that they will be obliged to
compensate for any injuries will take a more diligent attitude to their
operations.
How successful has international environmental law been in distancing itself
from classical international law and in adopting a new approach? The main
difference is that international environmental law has developed its own methods
for the negotiation and enactment of international environmental protection
rules. International environmental regulation has to be quick to respond to
changes as new scientifi c data emerges. It is also important to create administra-
tive structures in which states focus less on defending their sovereignty than on
considering themselves parts of a collective that makes the decisions that are
best for our shared environment. The soft-law instrument offers a good way of
reacting quickly to an environmental problem. It allows states and other actors
to adopt tentative regulation rapidly and fl exibly, without the challenges and
procedures involved in international treaties, which protect state sovereignty.
This method sustains a fast, tentative, non-binding international environmental
regulation that evolves gradually over time into internationally binding law.
The ability of international environmental law to create novel ways of reacting
to international environmental problems is best shown by the fact that treaty
regimes have become the prominent method of regulating international envi-
ronmental problems. The objective is to create a collective decision-making
body that, instead of penalizing individual members of the regime, focuses on
encouraging the parties to work with various actor groups on the basis of scien-
tifi c research to resolve an environmental problem. Interestingly, regimes are
being constructed on the basis of both legal rules and principles and soft-law
norms. Non-binding decisions by meetings of parties are often more effective
than treaty amendments in affecting the reaction to an environmental problem;
they can be made quickly and by consensus and they are considered acceptable
in international environmental law since all parties have been involved with their
creation. Compliance committees have proven effective in reacting to problems
relating to the compliance of individual states. It is essential that the treaty
community fi rst helps a party to return to the path of compliance. International
treaty regimes have been able to create powerful scientifi c institutions that can
infl uence the decisions taken by the various actor groups within the regime.