Laurence Boisson de Chazournes, visiting professor for the 2022–2023 academic year at the Avenir Commun Durable Chair , organized an international symposium on May 12, 2023, at the Collège de France on the topic of “International Environmental Law and the Challenge of Effectiveness .” The text below is a transcript of her opening remarks.
All of the presentations are available on the institution’s YouTube channel .
International environmental law has developed significantly since the 1970s. A large number of agreements and instruments with regional and global scope have been adopted. Often portrayed as a young field of law, it has nevertheless reached a certain level of maturity, even if it still exhibits normative and institutional weaknesses.
In this context, the question of the creation of international environmental law is becoming less relevant. Attention is now focused on its implementation and enforcement—what is referred to as its “effectiveness.” The concept of effectiveness refers to the translation of law into practice. It is generally distinguished from “efficacy,” although these terms are often used interchangeably. Efficiency refers to the suitability of the rule—or principle—for its intended purposes. Highlighting the links between these two concepts, the English term “effectiveness” encompasses both effectiveness and efficiency.
At first glance, one might consider effectiveness to be a somewhat redundant concept. Jean Carbonnier stated that “most rules of law […] involve a percentage that is always appreciable, and sometimes considerable, of ineffectiveness” [1]. Although it may be acknowledged that ineffectiveness is, to some extent, inherent in legal rules [2], the focus of this symposium examines the presence of obstacles and difficulties in a specific area—that of environmental protection—and suggests the need for additional efforts to ensure the practical application of rules and principles aimed at protecting the environment. The ecological emergency of our time makes it essential to strengthen the rules in this area. To achieve this, we will examine, in particular, the impact of international environmental law in the face of global and planetary changes (Session 1), but we should also take into account the assessment of these factors at the regional and local levels. The issue of effectiveness in the face of global and planetary challenges rests in part on the transposition of standards within states and on the environmental powers of local authorities. The global, regional, and local levels go hand in hand and are interconnected.
Any analysis of effectiveness must take into account the challenges at hand—both those related to the legal tools that seek to address them, as mentioned above, and the scientific and empirical factors that are causing environmental degradation.
It is indeed necessary to supplement the legal analysis with sociological—if not behavioral—approaches. This leads us to examine the influence of law on individual and collective behavior. Law plays a major role in shaping and structuring social morality. What, then, should be done to ensure that international environmental law best fosters the identity and defense of the social values at stake? The question of granting legal personality to elements of nature will allow us to reflect on this challenge. As we shall see, at the national level, a trend is emerging that recognizes legal personality for natural entities through methods that may vary. This movement introduces new forms of social relations and governance, notably by involving local and Indigenous communities, and by reintegrating nature into citizens’ lives [3] (Session 3). We will examine whether these approaches can be transposed into international law.
Law can also be understood as a “reflection of the state of public opinion” [4]. Is there a gap between the state of the law and the state of society that could lead to ineffectiveness? Various questions come to mind. How can this law be implemented when the subject matter of regulation is complex, as in the case of ecosystem protection based on the concept of interrelationships? What can international law do to address the challenges of climate change, such as issues related to rising sea levels?
Another question concerns sanctions—or the lack thereof. What type of sanction is appropriate? One solution to address the ineffectiveness of international environmental law is to introduce new criminal offenses, such as ecocide. But are there not other forms of sanctions that should be considered? Shouldn’t we focus more on the purpose-driven dimension of international environmental law—that which aims to ensure the protection of human health and human dignity and to guarantee the conservation of the environment and living organisms? Could a clearer articulation of these purposes help strengthen the effectiveness of environmental law? Strengthening the links between environmental protection and human rights moves in this direction (Session 2). We will see how the environment is gradually being recognized as a sine qua non for the fulfillment of fundamental rights.
Finally, it is worth noting that the role of the judge serves as an indicator of emerging trends. The pioneers of legal sociology systematized the concept of a jurisprudence sensitive to social movements and ties. National litigation in the field of environmental protection illustrates this consideration of the dynamics linking law and desired social objectives. Decisions by the International Court of Justice and the International Tribunal for the Law of the Sea, for their part, have helped clarify states’ obligations regarding environmental preservation. Recent requests for advisory opinions filed with these bodies regarding states’ obligations in the area of climate change underscore the societal demand for the judicial enforcement of international environmental law, particularly with regard to the protection of common interests, in order to establish the applicable law objectively for and by all (Session 4). Whether in international law—at the universal or regional level—or in domestic law, judges contribute to current developments in environmental law in the pursuit of greater effectiveness. Here, too, the issue cuts across the various levels of governance.
The issue of the effectiveness of international environmental law is more relevant than ever and must be continually updated. This symposium, organized in the form of four roundtables, will provide us with an opportunity to reflect on this issue.
[1] J. Carbonnier, “Effectiveness and Ineffectiveness of the Rule of Law , ” L’Année sociologique (1940/1948), 1957–58, Third Series, Vol. 9 , Presses universitaires de France, Paris, 1958, p. 11.
[2] Ibid. , p. 17.
[3] As T. Perroud explains in his analysis of the Mar Menor case: “Toward Democratic Governance of the Public Domain Through the Legal Personality of Natural Entities. The Case of Mar Menor,” Chemin Publics , Oct. 12, 2022: https://www.chemins-publics.org/articles/vers-une-gouvernance-democratique-du-domaine-public-a-travers-la-personnalite-juridique-des-entites-naturelles-le-cas-de-mar-menor.
[4] P. Lascoumes, E. Serverin, “Theory and Practice of Legal Effectiveness,” Droit et société , No. 2, 1986, p. 110.
