Normative hierarchy in international environmental law : a constitutional reading

Abstract

The current environmental law and governance regime is in need of urgent reform to the extent that it leaves too much room for state sovereignty and states' non-compliance with their environmental obligations. To some extent, this is due to the inadequacy of multilateral environmental agreements (MEAs) and environmental principles to effectively limit state sovereignty. MEAs are only binding upon state parties by their choice and much of the environmental principles' normative status remains unclear. Further, international environmental law as a whole is in a fragmented state and many non-state actors remain unaccountable for harm which they may cause to the environment. As a result, the environment is continuously deteriorating, as there is generally poor compliance with and enforcement of international environmental law (IEL). As a reform measure, this study seeks to extend the normative hierarchy debate that prevails in international law and global constitutionalism to the international environmental law context to identify ways to ameliorate the shortcomings of IEL referred to earlier. It specifically investigates the extent to which it can be said that a normative hierarchy exists in IEL; the relevance of such a normative hierarchy for global environmental law and governance from a global constitutionalism point of view; and whether there are customary international law or jus cogens norms in IEL, and if it is possible that they might come about.