Discretion in International Environmental Law

Abstract

Environmental treaties that are well-drafted are more likely to contribute to the solution of environmental problems. One central question that arises in the context of treaty-drafting is: Are some types of norms more effective than others? One factor that is relevant to the effectiveness of a treaty is whether the provisions grant discretion to the treaty parties or to international dispute settlement bodies.

This paper analyses why discretionary treaty provisions have an impact on a treaty’s effectiveness. It contrasts provisions granting “implementing discretion” and provisions granting “interpretative discretion”. Their impact is both positive and negative: On the one hand, discretion can be a very valuable feature of environmental treaties, because environmental problems tend to require flexible responses from decision-makers. Discretionary norms are therefore the right choice when treaty-drafters seek to govern changing and unpredictable situations, as is often the case in environmental law. On the other hand, discretion in treaties may have a negative impact on the behaviour of states as well as on the decisions of international dispute settlement bodies. This paper identifies and explains three reasons for this negative impact of discretionary provisions on a treaty’s effectiveness: 1. Discretionary provisions may be read as legally non-binding; 2. They may be drafted as “indirect” obligations; 3. Discretionary provisions are a weaker defence against claims based on other instruments of international law.