Lynne Jurgielewicz has written a good book. She attempts to bring together theories from international law, public policy, and
international relations, to examine what frameworks exist for the regulation of stratospheric ozone depletion climate change. It is
a difficult undertaking. The difficulties stem primarily from the general lack of international environmental law. Finding principles
that create binding rules for global environmental change is a bit like pulling blood from a stone.
International law has many sources, none of which applies very well to global environmental change, especially climate change.
The first source is international conventions or treaties. In the case of stratospheric ozone depletion, the Montreal Protocol
does give some basis for law, and its rules are well spelled out. In the case of climate change, while there is the Framework
Convention for Climate Change (FCCC), nations have yet to set binding emissions limits. Therefore, this source of international
law provides little help. The second source is customary law. Customary law "results from a general and consistent practice of
states followed by them from a sense of legal obligation." (p. 38). One would be hard pressed, however, to cite customary law
as a source applicable either to ozone depletion or to climate change; the history of international or national concern over these
issues is so short that few if any states would have an applicable set of customs. The third source is general principles of law.
This is like natural law, applicable to acts such as genocide, which are unambiguously wrong. Unfortunately, the practices and
beliefs encompassing global environmental change are ambiguous at best. The next source is the collection of national and
international legal opinions, as expressed either by judges or by scholars. In the case of global environmental change, no
judicial decisions exist, and the range of academic opinions too wide to be of any use. Finally, Jurgielewicz cites soft law. As
the term implies, this is difficult to define: it could be non-binding resolutions, bilateral treaties, or "statements prepared by
individuals in a non-governmental capacity." (p. 45). Soft law, of course, is non-binding, although over time it can take on the
form of more binding customary law.
Jurgielewicz also cites a number of sources of law that might apply to global environmental change in particular. The first is
prevention of environmental harm, the primary legal precedent for which is the Trail Smelter case. In that case, a Canadian
smelter located near the United States border was causing unambiguous cross-border harm. The principle that "the victim has
to wait for the harm to be done before he can take action" (p. 53) did therefore pose no problem. In the case of global
environmental change, by contrast, the requirement of waiting would be fatal to any effective, proactive regulation of behavior.
Jurgielewicz cites the principle of international cooperation to protect the environment as a potential source of liability. Under
this principle, states would have certain duties, of which the failure to perform could result in liability. One duty is to inform of
harm being done. Another is to consult with potential victims of the behavior, prior to undertaking it. A final duty is to assess.
None of these duties means much in the context of global environmental change: everyone is informing each other, everyone is a
victim, and everyone is assessing. But still change is occurring. Finally, Jurgielewicz cites some new concepts in international
law. These are the precautionary principle, the principle of intergenerational equity, the principle of respecting common or
shared resources, and the polluter pays principle. Unfortunately none of these has any teeth when it comes to an issue, such
as climate change, fraught with uncertainty and diverse arrays of costs and benefits. In short, then, both the traditional sources
and the new directions of international law offer little in the way of binding obligation of states’ behavior.
Against this backdrop of the limited applicability of international law, Jurgielewicz presents regime theory as a "middle ground"
(p. 97) between anarchy and world order. First, she discusses the general definition of regimes. Unfortunately, the definition
appears somewhat tautological: a regime is that which brings order, at some level of middle ground between world order and
anarchy. If a functionalist definition comes up short, a structuralist one does better. Generally, regimes come about through
international communication, agreement, or expectations that do not otherwise rise to level of being a source of international
law. If they are to be effective, regimes must provide some mechanism for enforcement of their rules, procedures for the
evolution of those rules, and dispute settlement mechanisms. Trustworthy regimes have some level of accountability and
transparency, and give states the ability to exclude non-compilers from the benefits of membership.
Jurgielewicz examines some of the critical regime issues applicable to global environmental change. These include the ability of
regimes to cope with—and overcome—scientific, economic, and development uncertainty. A critical catalyst for the formation
of regimes is the leadership of one or more states or non-state organizations, such as an NGO or an IGO. For a regime to be
effective, it must have support at the domestic level. Often, a perceived crisis will provide the impetus for a regime.
Jurgielewicz then analyzes to what extent regimes are in force and are effective in the issue areas of stratospheric ozone layer
depletion and climate change. The two issues are similar in some respects: both are caused by action around the world, both
effect all parts of the planet, although differentially, and both can only be solved through extensive international cooperation. The
two issues, however, have a great number of dissimilarities. First, the production and use of ozone depleting substances are far
less central to world economies than are greenhouse gases, most notably those formed through the burning of fossil fuels.
Second, stratospheric ozone depletion is surrounded by less economic uncertainty. Third, stratospheric ozone depletion
became the subject of alarm, when the Antarctic ozone hole was first identified. Given this variance, one would expect to see
difference in the shape and effectiveness of international regimes. It is therefore no accident that Jurgielewicz finds more of a
regime in place for ozone depletion than for climate change.
Jurgielewicz’s thesis is that regimes can provide a mechanism for international legal enforcement of global environmental change,
especially since other sources of international law have yet to rise to the level of offering binding constraints on behavior. Still, it
is difficult to identify any legal obligations arising under the climate change regime, since states have been explicit about not
incorporating binding obligations. The analysis of the climate change regime, such as the FCCC, necessarily involves more
focus on how the regime is currently going about the process of negotiating the preliminaries of binding targets, rather than what
rules it has developed, and how it enforces those rules. It is a prime subject for study within the rubric of international relations,
and of far less use to highlight principles of international law. Jurgielewicz does not miss this difficulty: "The important point is
that there is a path or a process (regime formation and maintenance) to substantive legal regulations—a path that if overlooked,
may prevent the reaching of one’s destination." (p. 225). Jurgielewicz encounters her greatest difficulty in trying to identify the
usefulness of regime theory to the field of international law. The former is concerned with the evolution of processes for
negotiation and social learning; the latter is concerned with binding obligations and duties. While regime theory is interesting and
important to academics and to politicians, it is not the basis for legal arguments. The subtitle of Jurgielewicz’s book reads
Prospects for Progress in the Legal Order. This may be wishful thinking. There is little sign that international law will
recognize that global environmental change presents new challenges to international governance for which its traditional sources
are ill-equipped. If change is to occur, however, it will be out of more efforts at interdisciplinary scholarship, like the one that
Jurgielewicz has undertaken.
