Document Type

Article

Disciplines

International Law

Abstract

Environmental law specialists continue to debate when environmental law originated and whether it properly may be regarded as a branch of law or legal science. Few doubt, however, that environmental legal concerns have played a special role in East-West legal and international relations. This role became evident in the late 1960s and early 1970s when common environmental concerns became a principal arena for dialogue and cooperation between the Great Powers. The major countries of the world were searching for a non-political yet functional subject to facilitate the process of detente. Environmental discussions survived the disappointments of the mid-1970s when the policies of detente and cooperation could not be sustained at their original pace.

While the environment served the process of detente superbly, it was by no means an artificial issue. Environmental deterioration was marked in all industrial societies, as both the specialist and the general public increasingly were aware. Much of the pressure generated on behalf of environmental measures originated spontaneously as a public response to the ravages of progress. Often the pressure was exerted in a highly organized manner in which voluntary citizens' organizations played an influential part. Out of these principally coincident national reactions against disregard for the environment emerged an international awareness that environmental deterioration might have transnational implications requiring bilateral or multilateral regulation. Indeed, certain, such as the Arctic and outer space, require public international law to become the principal means of regulating the environment in the interests of averting disturbances that may adversely adverse the entire planet.

International conferences discussing legal aspects of environmental protection attracted a younger, more activist constituency. Many of the participants were private practitioners extensively engaged in environmental litigation and personally committed to improving environmental quality. From the Anglo-American legal world, at least, these practitioners were remedy-minded lawyers. While playing an influential and sometimes powerful role in shaping environmental legislation, they continued to enjoy considerable success in advancing the cause of environmental protection by taking advantage of the adversarial legal system and the summary remedies shaped by the common law. In the United States, especially, environmental lawyers advocated judicially created law and filed suits to forestall environmental deterioration or to receive an evaluation of the environmental impact of contemplated developments. Considerable imaginative innovation in the development of law took place precisely because of their efforts.

One must suppose that sound instinct led this new breed of environmental lawyer to the realization that relevant ideas and experience might be found in other legal systems. Stimulated by international conferences that provided a forum for the exchange of legal information, environmental lawyers were confronted by the fundamental virtues and problems of the comparative legal process. As a comparatist, it was fascinating to watch them intuitively sense the opportunity to adapt ideas and approaches from other legal cultures while beginning to appreciate that legal rules and institutions were not merely parts of a "mechanism" readily transferable from one system to another. Indeed, the literature on environmental law began to reflect, on the basis of its own experience, some of the eternal concerns of comparative legal studies.

The converse, regrettably, has not been true; the general world of comparative legal studies has given only passing attention, if any, to environmental law and the issues it may pose as a process for comparison. The learning of comparative law has not become an integral part of environmental law notwithstanding the urgent need to shape and implement practical measures and reforms. The environmental lawyer is left to become an amateur comparatist as best he can while the world of comparative law too often is content to occupy itself with conceptual trivialities.

Yet, a spirit exists within the world of environmental law in all countries that other branches of law would do well to emulate. From the late 1960s, the cause of environmental protection has exhibited a degree of candor and openness uncharacteristic of other realms of legal activity. Public dialogue about environmental deterioration and the reasons for it has been lively and sometimes ferocious. Powerful interests have been affected by the conflict of priorities in seeking two socially desirable ends: social betterment through economic development and conservation and protection of our natural milieu. While no environmentalist will accept that the degree of openness is adequate, it nonetheless has been a stark and often exciting contrast with other branches of law.

The candor of environmentalists doubtlessly has contributed to another salient feature of environmental law-the calm, constructive, and mutually reinforcing nature of their deliberations, informed by a sense of self-criticism and restraint. It is perhaps no wonder that, in the difficult years of East-West tensions, interstate environmental agreements have been concluded most readily and have proved most enduring.

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