3 Vt. J. Envtl. L. 1 (2001-2002)

handle is hein.journals/vermenl3 and id is 1 raw text is: VERMONT JOURNAL OF ENVIRONMENTAL LAW
Volume Three 2001-2002
The Environment and International Law: Rethinking the Traditional Approach
Dr. Rajendra Ramlogan *
1.0 Introduction
Protecting the global commons from acts of environmental vandalism is becoming even more urgent as
we begin the 21st century. The environmental crisis has several idiosyncrasies that necessitate
implementation of a new vision of environmental protection -- a vision transcending national
boundaries and embracing the global collective.
A cursory examination of the legal environmental systems of some developing countries lends
credibility to the argument that nation states, particularly those of the developing world, cannot be
relied upon to pursue environmental objectives beneficial to the global commons. The results of some
country studies, for example, Mexico, Chile, and Brazil take this position. R. Findley, in his study of
Brazil, noted that the enforcement of environmental standards tended to be lax. He acknowledged that
there were gaps and uncertainties in the law, as well as shortages of enforcement personnel and
resources, but felt that the problem was primarily due to the lack of political will to deal with the various
environmental crises.[1] Findley went on to point out that since 1973, Brazil has developed a
substantial body of pollution control laws and regulations, similar in many respects to those of the
United States.[2] Edesio Fernandes, in a more recent study, endorses Findley's view of
Brazil. Fernandes insists that environmental legislation in Brazil could be considered sufficient to give
judicial support to public policies and private actions in the field of environmental protection.[3] In
essence, the problem is political rather than legal, raising questions as to the role of the economic
interests of Brazil's elite, and casting doubt on the merits of passing new laws without a change in
attitude.[4]
Similarly, Chile's environmental laws tended to be vague and difficult to interpret. This was particularly
true in the era of General Pinochet, who took a laissez-faire approach to environmental policies.[5] The
few laws that existed were largely un-enforced and ignored.[6] With the removal of Pinochet in 1990,
the new head of state, Patricio Aylwin Azocar, began rectifying the situation with environmental
laws. Indeed, over 2,000 laws and regulations affecting the environment were enacted.[7] Some of the
laws were so stringent that enforcement was almost impossible. Yet, other laws were left without
necessary regulations and, in many instances, selectively enforced.[8] Despite massive efforts to create
an appropriate legal regime for protection of the environment, it was noted that unless Chile committed
itself to enforcing the laws, the environment would continue to suffer.
In Central America a similar trend was observed. A study of the environmental laws of Mexico led to
conclusions no different than other developing nations.[9] A survey of air and water pollution laws
revealed that the failure of the legal system rose out of a lack of financial resources dedicated to legal
enforcement, multiple agencies performing overlapping functions, and a general failure to implement
laws.[ 10]
The enactment of far reaching environmental legislation can also be observed in India. Yet, a variety of
problems remained; namely, uncertainty about the legislative authority of the central government to
implement environmental statutes, enforcement problems, lack of private right of action, and
insufficient resources to implement environmental laws.[1 1] In an evaluation of pollution control
legislation conducted by Abraham and Rosencranz, it was emphasized that despite weaknesses in the
law, the bureaucratic structure for pollution control was adequate -- the problem was non-enforcement of
existing laws.[ 12] They observed that the failure to enforce laws operated to diminish their intended
impact.[13]

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