Pain, gain, or shame: the evolution of environmental law and the role of multinational corporations. (Symposium on Operationalizing Global Governance)

Introduction

 
   no man is an island, entire of itself; 
   every man is a piece of the continent, 
   a part of the main (1) 

The ecological problems in the last century have brought home the idea that every action carried out by a person or a state will have a profound effect on another, and it is this interconnectedness that has provided the impetus for the development of environmental law. The pollution by an upstream riparian state has a major effect on downstream riparian states, just as the burning of forests in one state has a major effect on its neighbors. Environmental law has developed through the background of this interconnectedness, and it is subsequently embedded in various legislative and policy frameworks that were developed in the past century.

Global environmental problems have been growing in magnitude. With global problems, we have come to believe, must come global solutions. From industrial accidents to climate change, this article will analyze how environmental law has responded to these challenges and has evolved in scale, reach, and complexity in the last century. In the early twentieth century, environmental law consisted mostly of domestic legislation. In the middle of the twentieth century, bilateral and regional legislation gained prominence. By the late twentieth century, the emphasis on global cooperation became the dominant trend. The evolution of environmental law in the past century has been linked to the growing acceptance of the notion of collective global responsibility. Recently, the focus of environmental law has shifted from the creation of global frameworks to deal with environmental problems to compliance with those frameworks. As a result, the primary actors in environmental law have shifted from the state and the global community to corporations. As a consequence, environmental policies must develop along legally holistic lines. By legally holistic I mean that environmental policy makers should consider all the laws and policy options available to incentivize or discourage a particular behavior and not limit their responses to the enactment of domestic or international environmental regulations or treaties.

I. Historical Succession of Environmental Actors

Before we explore the direction in which environmental policies should go, we have to examine from whence they came. The analysis of environmental law's evolution is vital in determining its future development. This Part will give a general overview of how environmental law has changed from the early twentieth century to today. This section will also explore the various trends in environmental law and determine possible approaches that environmental law should consider. We suggest the following diagram to illustrate the historical trends and future trajectory of environmental law.

A. Age of Legal Frameworks