Basic issues in international environmental law - Introduction to International Environmental Law - page 8

The whaling regime has reached stalemate. More and more governments
want to put an end to whaling, but those that support it stick to their opinions.
This can be seen in the annual meetings of the IWC where the governments for
and against whaling have accused each other of recruiting compliant countries
into the commission and infl uencing their votes by promising to grant or threat-
ening to withhold fi nancial aid.
Australia recently initiated contentious proceedings against Japan before the
International Court of Justice, asking it to declare that Japan is in violation of
the whaling agreement. The Australian argument is that Japanese whaling is not
intended for the purposes of scientifi c research but is in fact a smokescreen for
harvesting whale meat to sell for food. The International Court of Justice has
much to decide, and its decision may direct the development of whaling-related
international law.
Although the scientifi c committee of the treaty regime has recommended
limited whaling, it no longer seems to be a scientifi c issue but an issue of how
governments and individuals relate to whales: are whales a natural resource that
can and should be used for food, or are they an intelligent and sociable species
that man should protect for future human generations? Or should man protect
whales regardless of his own interests, just for the sake of the whales themselves?
Multiple actors
International law is a state-oriented legal system. States and their organizations
can establish legally binding rules and agree international treaties. Similarly, it
is primarily the practices and attitudes of states and their mutual organizations
that have a bearing when deciding whether a rule has evolved into a rule of
international customary law that binds states.
In contrast, international environmental law has challenged the idea that only
governments can steer foreign policy. The de facto power of non-governmental
actors is a key contributing factor in the creation and implementation of inter-
national environmental law, although it is governments that formally ratify the
agreements and implement the rules of environmental treaties. This trend began
on a large scale at the time of the preparations for the Rio UN environmental
conference in 1992. Agenda 21 recorded the world community's plan for
promoting sustainable development in the twenty-fi rst century. A key element
of the plan, initiated in 1989 and endorsed by 178 governments, is Section III,
which strengthens the role of major groups such as women, children and youth,
indigenous peoples, non-governmental organizations, local authorities, trade
unions, business and industry, the scientifi c and technological community, and
farmers in promoting sustainable development.
In any environmental regime or in negotiations for any international envi-
ronmental agreement, non-governmental actors have used actual power in a
number of different ways. Epistemic communities of scholars - communities
that share roughly the same way of classifying the world intellectually - have