Abstract

An assumption is often made that treaty-making in the sphere of international environmental law is at the vanguard of more general developments in treaty law. Patricia Birnie, Alan Boyle and Catherine Redgwell for example, describe the development of international environmental law as ‘one of the most remarkable exercises in international law making, comparable only to the law of human rights and international trade in the scale and form it has taken’. However, this assumption—though not without notable elements of accuracy, especially as regards progress by, and within, multilateral environmental agreements (MEAs)—risks caricaturing the supposed innovation and progression in the use of treaties to resolve many of the world’s environmental problems. In particular, whereas key developments in matters such as amendment, breach, the relationship between treaty rules and institutional law have indeed been novel, much of what has been achieved so far is either a logical extension of developments in other fields of law or is much less innovative when considered alongside the challenges that remain. Moreover, the developments that have taken place—and by no means in all environmental treaties or in all subject-matters of environmental law—invariably occur within the conceptual boundaries of pacta sunt servanda and the underlying principles of the 1969 Vienna Convention on the Law of Treaties (VCLT). Thus innovations which have undoubtedly occurred do not challenge the underlying features of treaties in general international law. Nevertheless, there remains a growing body of opinion which seeks to argue that the nature and extent of the environmental problems facing the international community demands a much more radical response, including moving towards a form of international legislation, namely binding rules which have not otherwise been expressly consented to ex ante. The issues of consent and treaty-making thus provide much of the central narrative of this chapter.