IUCN as catalyst for a law of the biosphere: acting globally and locally.

I.   INTRODUCTION
II.  ENVIRONMENTAL LAW: MEDIATING BETWEEN NATURE AND HUMANS
III. CHANGE AS THE "DEFAULT" LEGAL ASSUMPTION
IV.  IUCN's INTEGRATED VISION OF HUMANS IN NATURE
     A. The Convention on Trade in Endangered Species (CITES)
     B. Part XII of the UN Convention on the Law of the Sea (UNCLOS)
     C Convention on Migratory Species (CMS)
     D. Convention on Biological Diversity (CBD)
V.   IUCN's "CREATIVE" CATALYTIC ROLE: CONCEPTUAL LAW DEVELOPMENT
VI.  COMPARATIVE LAW ANALYSIS: AN ESSENTIAL ENVIRONMENTAL LAW PRIORITY
     A. The Significance of Comparative Law Techniques
     B. Environmental Impact Assessment
     C. Coastal Zone Management
     D. Insights Gained Through Comparative Law
VII. IUCN's UNIQUE STATUS AS CATALYST FOR INTERNATIONAL COOPERATION
     AND THE PROGRESSIVE DEVELOPMENT OF ENVIRONMENTAL LAW
     A. The Acts Constituting IUCN
     B. IUCN's Legal Status Under International Law
        1. International Law Criteria for Determining International
           Personality
        2. The Lex Specialis of IUCN as an International Person
        3. State Practice with Respect to IUCN's International
           Personality
           a. Capacity to Enter Agreements
           b. Treaty Recognition
           c. Increasing Cooperation
        4. IUCN's Legal Capacity Under Municipal Law
VIII. AN EVOLVING RECONCILIATION BETWEEN HUMANS AND NATURE

I. INTRODUCTION

Rene Dubos, the French microbiologist who popularized the maxim "think globally, act locally" (1) in connection with the 1972 Stockholm Conference on the Human Environment convened by the United Nations (U.N.), came to view the relationship of "humankind and Earth" as "a diversity of systems of symbiosis that constantly undergo adaptive changes and thus contribute to a continuous evolution process of creation." (2) His view of the future of the biosphere is an optimistic one. He posits that nature and humanity will interact and adapt, and that human creativity is an essential sustaining force whereby civilizations learn to make the most of the natural environments on Earth.

Dubos's concepts provided a philosophical and scientific vision to inspire the 1972 Stockholm negotiations that created the U.N. Environment Programme (UNEP) and ushered in the processes establishing environmental law at both national and international levels. Since then, the enormity of the current changes that humans are causing around the Earth has made his vision ever more relevant; the pace and scale of global change poses challenges for societies across all parts of the biosphere. (3) Two decades after the U.N. Conference on the Human Environment in Stockholm, nations took stock of the deteriorating environmental trends when 8,000 governmental delegates and 116 heads of state from 172 nations assembled at the 1992 U.N. Conference on Environment and Development (the Rio Conference). This "Earth Summit" in Rio de Janeiro starkly concluded that "[h]umanity stands at a defining point in history." (4)

Despite well-considered recommendations that the Earth Summit set forth in its thoughtful action plan, "Agenda 21," (5) the Rio Conference has stimulated rather modest reforms, inadequate to stem the accelerating deterioration in global environmental problems across the world. (6) In response to alarm about signs of further environmental degradation and chronic poverty experienced by billions of persons, the U.N. World Summit on Sustainable Development convened in 2002 and endorsed the "Johannesburg Plan of Implementation" to spur nations on to action. (7) Since then, there remains scant evidence of enhanced work to abate worldwide environmental degradation. Large intergovernmental conferences may be necessary, but are not by themselves sufficient to force implementation of environmental reforms.

If the trends in environmental degradation are to be reversed and more sustainable patterns of human interactions with natural systems established, it will be necessary to identify how recommendations can be leveraged into action. It is the thesis of this Essay that human "creativity" can induce governments to take the effective actions that are promised but as yet unrealized. Such creativity can be stimulated by innovative governmental or intergovernmental programs or by persons acting individually or gathered into nongovernmental organizations (NGOs). There are ample examples of this creativity at work. (8) If harm to the environment is to be corrected, it will be important to understand how these creative instances can be identified and emulated.

One little-appreciated record of such creativity is found in the work of the International Union for the Conservation of Nature and Natural Resources (IUCN or the Union). In 1948, 18 governments, 124 national agencies and nongovernmental organizations, and a collective of individual scientists and lawyers met in France to create IUCN, or the Union for the "Protection" of Nature as its original name provided, to help the nations of the world address emerging threats to the environment. (9) Since then IUCN has consistently worked on nature conservation issues across local, national, and international levels, earning a unique status among international organizations. (10) Because knowledge about Earth's environmental problems is becoming more widespread, the demands on IUCN are ever greater. (11) In order to understand the past significance and future potential of IUCN, it is important to evaluate its sui generis character status under international law.

IUCN works with governments at all levels. IUCN's Commission on Environmental Law has stimulated a wide range of international lawmaking activities. (12) When environmental problems manifest themselves, state and local authorities are motivated toward enacting and implementing environmental laws at a remarkably fast pace, often with IUCN's assistance. For the past three decades, IUCN has also been involved with environmental lawmaking at the national level in all regions of the Earth. (13) These lawmaking phenomena are hard to perceive because public comment focuses on the final legislative product, rather than on the processes that produce new treaties or statutes. In its programs to facilitate lawmaking, IUCN concentrates on providing the expertise needed for the success of the process. IUCN's endeavors in building the web of national, local, and international environmental law deserves to be emulated more widely in order to resolve environmental problems more effectively.

This Essay describes the quiet and creative role that IUCN has undertaken in building the field of environmental law. In evaluating IUCN's environmental law programs, it becomes clear that greater study and teaching of comparative environmental law is essential. As is discussed below, (14) comparative law analysis permits a fuller understanding of creative innovations in national and local environmental laws. That understanding, in turn, can show the way to replicate creative legal innovations, which if multiplied could do much to abate environmental problems worldwide. Environmental lawmaking is a powerful way to realize sustainability values and leverage implementation of recommended solutions to abate pollution, reverse desertification, supply potable water, or conserve biodiversity.

Recognition of the numerous local environmental lawmaking actions, many of them reflecting global thinking, has been masked because the UN, the media, and even the academic world devote their attention to the failures of nations to agree internationally on new treaties, implementation of Agenda 21, or establishment of new international environmental intergovernmental organizations. (15) There is a growing literature about the need to strengthen UNEP or to set up a new environmental agency to counter other bodies such as the World Trade Organization. (16) These debates about building new institutions tend to divert attention from the accomplishments of existing institutions, in particular the local environmental law innovations. They bemoan the lack of universal action to sustain Earth's natural systems without acknowledging what has been accomplished, and how. Rather than pursue this formalistic insistence on building a new international intergovernmental body, much more study should be devoted to seeking and studying the locally effective, creative innovations.

To learn from the many national or local environmental success stories and replicate this sort of action more rapidly, legal practitioners, government officials, and scholars alike must devote attention to the subject of comparative legal studies. Because this sort of study and analysis cannot proceed without comparative law, such studies are likely to develop. (17) Just as the field of environmental law itself has emerged in less than one generation, these comparative law studies will grow enormously in the next generation. In turn, students of comparative environmental law will help develop the adaptable legal framework necessary to reverse environmental degradation.

II. ENVIRONMENTAL LAW: MEDIATING BETWEEN NATURE AND HUMANS

Rene Dubos's vision of creativity stimulating adaptive responses to environmental conditions in the evolving symbiotic relationship of humans and nature is illustrated by the emergence of the field of environmental law. Before 1972, no one would have posited that any such legal discipline existed. (18) Yet between 1972 and the adoption of the U.N. World Charter for Nature in 1982, (19) the field of environmental law had emerged, (20) In the Charter for Nature, drafted by IUCN and endorsed by UNEP, (21) the U.N. General Assembly codified and restated many of the basic norms of current environmental laws. (22) The Charter for Nature is a forceful international "soft law" instrument. Also during this period, legal education in environmental law began and law reviews such as Environmental Law at Lewis & Clark Law School rigorously defined and critiqued the young field. (23) Human creativity was at work fashioning new bodies of law and legal institutions across the United States (24) and in many other nations (25) to cope with widespread pollution, depletion of natural resources, extinction of species, and deteriorating public health conditions for humans.

Environmental law gradually came to embody the norms and means by which organized human society in each nation seeks to sustain the yield of renewable natural resources, abate water pollution, avert adverse unintended environmental effects of development through techniques such as environmental impact assessments, and protect the habitats of species threatened with extinction. While none of these tasks is complete and many of the other responsibilities assigned to environmental law remain to be implemented fully, further challenges are being assigned to evironmental law as new problems emerge, such as climate change, sea-level rise, the use of bio-engineered crops, or the spread of zoonotic disease vectors causing avian flu or Severe Acute Respiratory Syndrome (SARS). (26)

Most governments still view environmental law prosaically, as an approach to "restore" clean water and air, (27) "conserve" parklands and species, (28) or "preserve" natural resources, (29) Important as these traditional and continuing missions may be, the field of environmental law must take on new responsibilities such as addressing the spread of infections diseases. It also must strive toward an ecosystemic scope to its application and not function in segments or in isolated sectors. Moreover, because environmental laws invariably must reflect nature and natural systems, decision makers turn to environmental law as they confront the awesome and unpredictable tasks of refashioning laws and legal institutions to cope with global change. Eventually, environmental law will need to become an integrated set of laws for the biosphere, a body of "Earth law." (30)

The Earth is changing, and societies worldwide need to focus on how to manage that change. Melting of Arctic ice and mountain glaciers, (31) shifting weather patterns, (32) rising sea levels, (33) loss of habitats, (34) and other changes in the natural order will force human societies across the globe to adapt to changed conditions. The law will either facilitate this adaptation or be rendered inadequate because of it. Although the Earth is changing measurably, the consequences are but dimly perceived. Human communities and their laws have grown accustomed to stable conditions and the vested economic interests that rely upon those conditions. When a society does not yet perceive any environmental change, its leaders will see little need for changing the laws. For many, it is counterintuitive that any change will be required, and the politics of inertia reaffirm the current regime.

Much environmental degradation remains hard for leaders or the public to comprehend. In dally life around the world, most take for granted that the sun will rise and set and nature will sustain human life as it always has. Others are so caught up in the turmoil of civil strife, poverty, or political and social causes that deflect all attention from environmental change that none perceive the need to plan for adaptation. Since the citizens in most nations hardly discern such changes in the Earth, it is easy to forget about these gradual threats when considering issues of terrorism, public health crises such as SARS, or lesser political events surrounding national elections or debates over taxes and current economic difficulties.

Environmental law will need to help induce reforms to accommodate adaptations, and provide for education and procedures to cope with the resistance to change. (35) Adaptations will be easier and more effective if the creative and successful innovations in one locality are understood and emulated elsewhere.

III. CHANGE AS THE "DEFAULT" LEGAL ASSUMPTION

Notwithstanding the difficulties that many may have in perceiving global change and the consequent need to change laws and human institutions, there are parts of the world that live with such change already and have for some time. Communities that live near volcanoes, on seismic fault lines, or in the paths of hurricanes or typhoons know that change must be anticipated and prepared for. Along many seacoasts, communities have been adapting to change for years. For instance, on Cape Cod in Massachusetts, communities live amidst rapidly evolving geological time. The Atlantic Ocean reshapes parts of Cape Cod each year, all year. Cape Cod is the easternmost part of the United States; Henry David Thoreau concluded his book, Cape Cod, by declaiming: "A man may stand there and put all of America behind him." (36) Thoreau hiked across Cape Cod repeatedly, closely observed its geology and flora and fauna, and thoughtfully interpreted what he found. (37) Thoreau wrote at a time well before our contemporary understanding of how the Laurentian Ice Sheet advanced 21,000 years ago into New England, leaving in its wake a vast moraine of rocks and sand. The Atlantic Ocean level was 400 feet lower than it is today, and as it rose with the melting of the glaciers 6,000 years ago, the sea embraced these glacial deposits, forming Cape Cod. (38) Long before the Pilgrims arrived, the sea had begun an active geologic sculpting of Cape Cod's shores. The Pilgrims and their progeny did not perceive these changes; it took three centuries for humans to come to perceive geological change on Cape Cod.

"Perhaps what the ocean takes from one part of the Cape," Thoreau speculated, "it gives to another--robs Peter to pay Paul." (39) Thoreau saw how the Atlantic eats into the Great Outer Beach. In the Town of Wellfleet, (40) the Great Outer Beach has a sea cliff 100 to 150 feet high, and this Beach runs for 15 miles along the Atlantic. In 1999, the Highland Light was moved some 300 feet inland from the cliff; the site where it was first erected will soon be lost to the sea. The Atlantic Ocean already has consumed all the signal towers in Wellfleet that Marconi built above the cliffs to send the first wireless message across any ocean from President Theodore Roosevelt to King George in England. Each winter the Atlantic Ocean takes over 40 feet of the shore beach and pushes the cliffs of the Great Outer Beach further inland. The sands taken from Wellfleet are then washed up north around the tip of Cape Cod to fill in the inlets and coves inside Cape Cod Bay or are pushed south against the vast Nauset Marsh, now a part of the Cape Cod National Seashore. (41) Indeed, one of the arguments for Congress taking the lands to establish the Cape Cod National Seashore as public domain over much of the Great Beach was to make space for humans to let these natural forces play out without encountering the problems of catastrophic loss of property, tort claims, federal flood insurance, disaster relief, and the like. (42) When Congress established the National Seashore, it was not establishing a static site such as park, but rather enacting a creative law capable of accommodating human activity to change in nature.

Each year Cape Cod experiences dramatic change. In the Great Blizzard of 1978, waves 14 feet high swept away Henry Beston's "Outermost House" (43) from the Great Beach at Nauset. One of the few designated National Wilderness Areas in the eastern United States, Monomoy Island, (44) a critical part of the national system of wildlife refuges, was cut in half by the storm. Cape Cod is perpetually changing. The ecology and economy of life on the Cape has altered greatly since European settlement. Flux and change are the order of the day, and the local and state governments and their citizens have come to accept such dramatic change as a part of the established order.

Thoreau knew nature was dynamic. Others, like Thoreau's contemporary, George Perkins Marsh--a lawyer, congressman, and later Fish Commissioner of Vermont--made similar observations. While abroad, Marsh studied how the hand of man had gradually altered the landscape. As America's Ambassador in Turkey, and later the newly-united Italy, Marsh traveled throughout Italy, Greece, and Egypt. He observed how years of grazing goats and sheep had denuded the hills of grasses and how erosion had washed away the soils across the entire Mediterranean region, (45) On his return to New England, Marsh described what he had seen in his 1864 book Man and Nature. (46) Marsh wrote,

   Apart from the hostile influence of man, the organic and the
   inorganic world are, as I have remarked, bound together by such
   mutual relations and adaptations as secure, if not absolute
   permanence and equilibrium of both, a long continuance of the
   established conditions of each at any given time and place, or at
   least a very slow and gradual succession of changes in those
   conditions. But man is everywhere a disturbing agent. Wherever he
   plants his foot the harmonies of nature are turned to discords. (47)

Marsh concluded, "The earth is fast becoming an unfit home for its noblest inhabitant." (48)

Also during this period, Charles Darwin published his Origin of Species. (49) Darwin posited a new worldview of evolution in all life. Life, through the evolution of species, was all about change. (50) This view came to revolutionize the study of biology and open a new social concept of nature. When Ernst Haeckel used the word "ecology" in 1866 to describe the relationships of living organisms with their surrounding environment, he launched a new field for scientific inquiry. (51) Nature would henceforth be seen by science as dynamic and changing, rather than static.

Thoreau and Marsh described the natural world as intrinsically mutable, explaining that humans can inadvertently be agents that harm nature. Darwin, Haeckel, and others studied and described change in nature without human intervention. Yet these intellectual insights by scientists did little to influence the content or enactment of society's laws. The body politic did not modify legislative or other legal norms to take into account a dynamic set of relationships with nature. Society's laws continued to conceive of land as a static resource--a property or commodity available for real estate development or for harvesting natural resources such as fish, timber, or agricultural crops. Nature could be owned and developed. Parks would be delimited, "preserved," and set aside. The natural world was assumed by law to be a stable place, available for continued exploration and development.

Across the United States and around the world, most laws still assume that nature is static, not dynamic. (52) International law principles of national sovereignty and international intergovernmental regimes are premised on the paradigm of a static Earth on which national states can be defined. Law schools teach this static model in their courses on property law and international law. Recorded deeds set out metes and bounds, as if the land will be there in perpetuity; rules for accretion or loss of lands along rivers or bays are considered somewhat arcane exceptions to these standard property norms. Municipal zoning carves up development densities and uses. Insurance systems reimburse for casualties in order to rebuild or restore property. We rush disaster relief to victims of hurricanes and floods and then facilitate the rebuilding of areas of high hazard, as if the events were random accidents unlikely to recur.

Each jurisdiction--whether a nation or a village--tends to regard the natural system within its territory largely as a fixed, unchanging natural resource base. Few local authorities have any knowledge about which habitats within their boundaries are part of the migratory flyway or contribute to a global climate system. Few local authorities manage their impervious new land cover, such as parking lots and roads, so as to retain 100 percent of the rainwater on site; most planning authorities engineer to remove the water from their site downstream, letting storm water volume or quality become someone else's concern. (53) Most pesticide laws are based upon a legal presumption that chemicals used in accordance with the instructions on their labels will impact only the pest, (54) when in fact these chemicals bioaccumulate in the food chain. (55) Hazardous waste laws strive to contain 100 percent of waste chemicals, storing them in perpetuity in a treatment, storage, and disposal facility. (56) Water pollution laws imperfectly establish water quality standards and effluent limitations as if local conditions are all that matter. (57) The United States tolerates vast dead zones at the mouth of the Mississippi River, in the Chesapeake Bay, and elsewhere where chemical waste and the chemical and biological oxygen demand have eliminated conditions suitable for marine life. (58) Air pollution laws pretend that emission trading has controlled the problems associated with acid rain. (59) when it is clear that acid rain still harms eastern Canada and the United States, threatening the unique sugar maple. (60)

As Asia's economy booms, it is producing air and water pollution on a vaster scale than produced during the Industrial Revolution in Europe and North America. India has 23 cities with more than 1 million persons, and none meet the World Health Organization's air quality standards for healthy air. (61) Acid rain is China's largest "export" to Japan. (62) We can trace Asian aerosols arriving here in North America. (63) But the bulk of Asia's air pollutants contribute to acidic water vapor that sweeps across Southeast Asia, forming a cloud over the Indian Ocean that is two miles deep and 3,000 miles long. The monsoon pushes this "atmospheric brown cloud" up into the Indian subcontinent, where it precipitates as acid rain. (64) Throughout Asia, the combination of soot with other air pollutants has reduced the amount of sunlight that reaches the surface of the earth by ten percent, thereby reducing agricultural yields. (65) The current problems in Asia are not atypical; more than three decades after Sweden put acid rain on the world agenda at the United Nations' 1972 Stockholm Conference on the Human Environment, acid rain from within Europe still harms Scandinavia. (66)

All nations continue to treat pollution as a local phenomenon. They manage land use with a local perspective, ignoring global problems. The laws for private property, spatial planning, and development invariably reinforce this paradigm. The environment remains an assumed "given"--a place to dump wastes, a source of resources, and land to be molded to our needs. The law treats the environment as a static component of the socioeconomic world. If there is a problem with a natural phenomenon, sound engineering can solve it.

This "static" legal paradigm has worked effectively within its limits. Setting aside areas of natural or aesthetic wonder for protection remains a core effort of environmental law. Thoreau and Marsh had called for protecting areas of nature from destructive human development, (67) and by the late nineteenth century, the United States heeded this call, creating national parks. (68) Across the world, as human development has encroached on extraordinarily wondrous natural areas, other nations have independently established national parks, local parks, land conservancies, marine parks, and wilderness areas. The World Commission on Protected Areas, one of the commissions within IUCN, compiles data for the U.N. Secretary-General's List of Protected Areas. (69) If all the designated protected areas around the world were gathered in one place, they would comprise an area vaster than the Indian subcontinent. (70) No treaty requires this action; nations emulate each other and take pride in establishing their national parks.

While protected areas serve myriad environmental functions such as benefiting migratory species and sustaining the biological diversity of flora and fauna, governments treat these areas as static. Few "protected areas" are designated to cope with patterns of their natural destruction like Cape Cod National Seashore, which accommodates human use despite radical geological change. Most protected areas exist within the confines of a line on a map and require other land uses to acknowledge and conform to that designation.

This static model of law is m-suited to a world of environmental change. When the volcano on the Caribbean island of Monserrat erupted, its citizens became ecological refugees. (71) Some have been in New York City for years; the U.S. State Department announced in 2004 that it wants to expel them because the volcanic eruption is over and their emergency refugee status no longer exists. (72) Yet, they cannot return to their island because much of it is uninhabitable. The Haitian boat people are also ecological refugees. They flee their barren hills and valleys depleted of life, and the U.S. intercepts them and sends them home. (73) The people of many South Pacific islands have experienced rising sea levels and wonder where they shall remake their lives once their homelands can no longer sustain human settlements. (74) Elsewhere, expanding desert areas displace humans and fauna, producing more ecological refugees. (75)

Sea-level rise is a phenomenon occurring in all regions of the world. (76) The seas are reshaping the coasts all over the world, just as they have always done on Cape Cod. People in the low-lying regions of Bangladesh already experience the tragic consequences of flooding and sea-level rise. (77) Yet the static perspective blinds each coastal jurisdiction as if it need only worry about its own local coastline.

Thanks to the studies and reports of the Intergovernmental Panel on Climate Change, (78) leaders in many nations have come to understand that each nation's climate and weather are linked in a global pattern. Most nations prefer to focus on issues of public concern other than their own contributions to increased carbon dioxide levels in the atmosphere. (79) National leaders defer worrying about changes in weather and climate because these changes are uncertain in intensity and effect. (80) From time immemorial, people have asked, "What can you do about the weather anyway?"

IV. IUCN's INTEGRATED VISION OF HUMANS IN NATURE

In contrast to the longstanding geopolitical and legal assumption that nature serves primarily as a static substrate for human activity, a different scientific and legal paradigm is gradually emerging. Emerson, (81) Thoreau, (82) and Marsh (83) elaborated ideas about conservation of nature in the nineteenth century, which Theodore Roosevelt began to enact into law in the early twentieth century, (84) Comparable conservation activity was afoot in Europe. (85) In the second half of the twentieth century, conservationists advocated enactment of laws to ensure that humans take nature into account in all their activities. Since 1948, IUCN's coalition has grown to number 82 state members, 112 environmental agencies, and 851 nongovernmental organizations, all collaborating in a union for world conservation. (86) Through IUCN's Species Survival Commission, over 7,000 scientists worldwide prepare the "Red Data Books" on species that are threatened or in danger of extinction. (87) IUCN's World Commission on Protected Areas works with most of the national parks services around the world and every decade holds a World Parks Congress assessing global efforts to protect designated park areas. (88)

IUCN's Commission on Environmental Law, currently numbering over 900 environmental law experts from all regions of the world, has taken the lead on developing environmental law. In 1948, the founders of IUCN set forth among the new Union's objectives the duty "to instigate international agreements on the protection of nature." (89) By 1958, the Union began to receive requests from different nations for experts to assist in preparing nature conservation laws. By 1963, the Union established its Commission on Legislation and Administration, the precursor of its present Commission on Environmental Law. (90) From the start, the leaders of the Commission worked on the assumption that the natural systems of the Earth were dynamic and interrelated. Like those engaged in shaping the first generation of environmental law within the United States and in most other nations, the Commission's early leaders such as Dr. Wolfgang E. Burhenne and Prof. Keith Lynton Caldwell promoted studies toward a new body of legislation and treaties that could promote sustainable yields from natural resources, preserve species and their habitat, and integrate the stewardship of natural systems with management of human social and economic systems. (91)

IUCN envisions Earth as one biosphere where all living systems are linked and where the role of environmental laws is to guide and adapt governmental and other legal systems toward a conservation ethic. (92) Stewardship of nature depends first on the scientific understanding of the environment. This understanding has evolved as the science of Earth's systems has advanced. Environmental law is not a static field. For instance, protected areas are no longer viewed just as parks with defined borders. All protected areas need to be surrounded by buffer zones, including wildlife corridors and other programs to mediate between the preserved areas and adjacent developing areas. (93) IUCN has adopted a well-elaborated set of criteria for classifying and managing different types of protected areas. (94) However, a second generation of legislation and adjustments to environmental preservation laws are required. (95) Legislation must evolve and adapt as the natural or human environments change.

The IUCN Commission on Environmental Law has studied and advanced several international agreements to guide nations in the process of adapting from a fossilized view of nature toward one that accommodates change. Four brief case studies demonstrate how IUCN's expertise and quiet diplomacy have helped to establish important elements of both international and national environmental law.

The first agreement to illustrate IUCN's catalytic role is the 1973 Washington Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES), (96) in which the United States convened the diplomatic conference where the treaty was negotiated and signed. The second agreement is the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals (CMS), (97) to which the United States is not yet a party. Third is Part XII of the U.N. Convention on the Law of the Sea (UNCLOS), (98) which forms the environmental law norms for the world's oceans, a treaty the United States has signed but not yet ratified. (99) The fourth is the Convention on Biological Diversity (CBD), (100) which the United States has signed but not yet ratified. (101) Together with the "soft law" norms in the U.N. Charter for Nature, (102) for which the IUCN Law Commission had prepared the initial text, these laws represent key elements of an emerging body of global law for the biosphere. The Commission has contributed to many other treaties and national statutes, (103) but the pattern for these other legal initiatives is similar to the treaties described here.

A. The Convention on Trade in Endangered Species (CITES)

IUCN's Commission on Environmental Law received a mandate to study a possible new treaty to help curb poaching and trade of endangered species in 1966. (104) The Commission convened a drafting group of legal experts, led by Dr. Francoise Burhenne-Guilman (IUCN Secretariat) and Cyrill de Klemm, which prepared a study draft entitled "Convention on the Import, Export and Transit of Certain Species." Two years of quiet negotiations about this text ensued; by 1971, over 120 nations had been consulted.

During this time, Congressman John Dingell held hearings in Congress on proposals to strengthen the Lacey Act, (105) which made it unlawful to ship any wildlife in interstate commerce within the United States if the species was taken in violation of the wildlife laws of the states. The IUCN draft convention was made a part of the record and the executive branch agencies endorsed the concept of a new treaty to curb unlawful international trade in endangered species. (106) The support of Russell E. Train, then Under Secretary of the Department of the Interior, of IUCN was later made a part of the record in the Senate hearings on the Endangered Species Conservation Act of 1969. (107) In passing the 1969 Act, Congress endorsed the idea that IUCN's

Commission on Environmental Law had been advocating:

   To assure the worldwide conservation of endangered species and to
   prevent competitive harm to affected United States industries, the
   Secretary, through the Secretary of State, shall seek the convening
   of an international ministerial meeting on fish and wildlife prior
   to June 30, 1971, and included in the business of that meeting
   shall be the signing of a binding international convention on the
   conservation of endangered species. (108)

With the support of Congress, IUCN's Commission on Environmental Law worked with the United States Department of State to organize a diplomatic conference on the treaty. The United States convened the diplomatic conference in February of 1973. The year before, IUCN's Commission had worked with the parties gathered at the 1972 U.N. Stockholm Conference on the Human Environment and won the recommendation of Stockholm in favor of an endangered species treaty. (109) This support presented international consensus in favor of the treaty, ensuring that the United States' invitation would be well received by other nations. IUCN had laid a supportive foundation for the treaty over a period of nearly a decade, thereby guaranteeing its successful negotiation and ratification, as well as its entry into force on July 1, 1975. (110)

IUCN's Law Commission understands, however, that it is not enough to secure a new treaty's entry into force. IUCN consistently dedicates its legal experts as volunteers through the Commission on Environmental Law, its scientific experts through the Species Survival Commission, and its small number of staff lawyers and staff scientists, to the implementation of the convention. Just as it took a decade for the idea of this an international law to become a reality, it has taken three decades of hard work to ensure its implementation. IUCN worked with national governments on the design of implementing legislation, (111) and sent lawyers to the conferences of the parties to CITES to provide expertise regarding the elaboration of appendices, rules of procedure, and decisions. (112) IUCN's members continue to assign the Commission on Environmental Law a mandate to monitor and assist the implementation of CITES.

B. Part XII of UN. Convention on the Law of the Sea (UNCLOS)

The U.N. Convention on the Law of the Sea is a remarkable legal instrument. It was intended to be a codification of centuries-old rules for the high seas, as well as the restatement of rules on coastal waters and the governance of the exclusive economic zone in which coastal states could exploit natural resources. (113) Aside from some general principles of international law, (114) there were no accepted norms for protection of the marine environment before the negotiations for the law of the sea convention began. In 1970, the U.N. General Assembly had agreed to convene a conference to codify the law of the sea and to update the four Geneva Conventions that had been the product of the first U.N. Conference on the Law of the Sea in 1958. (115) This would be the first international plenary negotiating conference for many of the newly independent nations now members of the UN. The agenda for this Third Conference on the Law of the Sea (UNCLOS III) included issues of marine environmental protection.

Members of IUCN's Commission on Environmental Law participated in the plenary negotiating sessions as observers. (116) An IUCN Task Force was set up to support the consultations. (117) This Task Force consulted widely with delegates and also conducted a series of seminars on the natural history and environmental problems of the oceans for diplomats attending the several negotiating sessions for the convention. Plenary deliberations in multilateral negotiations are frequently delayed while small contact groups of key delegates negotiate quietly to agree on consensus proposals to submit back to the plenary. While these contact group negotiations are advancing, there are periods when little can proceed in the plenary session. It was during these quiet periods, primarily at the sessions held from June to August 1974 in Caracas, Venezuela, that the IUCN Environmental Law Commission and others convened scientific seminars for the diplomats on the environmental management issues that should be addressed in any new treaty for the oceans. (118)

During the nine years of UNCLOS III negotiations from 1973 to 1982, IUCN, UNEP, and others were developing the elements of marine environmental management. In the United States, environmental NGOs and scientists had pressed Congress for the enactment of the Coastal Zone Management Act of 1972 (CZMA), (119) the Marine Protection, Research and Sanctuaries Act of 1972, (120) and the Marine Mammal Protection Act of 1972. (121) The implementation of these national laws provided a body of experience to present to diplomats charged with negotiating the law of the sea convention.

After its establishment in 1973, the U.N. Environment Programme also began to negotiate its "Regional Seas Programme," which included the adoption of treaties for the environmental management of the Persian Gulf in the Kuwait Agreement of 1978 (122) and for the Mediterranean Sea in the Barcelona Convention of 1976. (123) Like IUCN, UNEP recommended expanding UNCLOS's vision to include provisions on the marine environment.

IUCN's role was to identify national innovations and best practices that should be embraced as international norms. IUCN had put forth a number of specific proposals for the Revised Single Negotiating Text of the U.N. Third Conference on the Law of the Sea, (124) much of which drew upon a strategy that IUCN and the World Wildlife Fund's Marine Programme had prepared in 1976. (125) Although many of the elements of the strategy dealt with specific species at risk, the general thrust of the proposal became items for inclusion in the negotiation of Part XII.

Preparation of the provisions of Part XII of UNCLOS became possible as a consensus emerged that environmental protection norms for the oceans should be included in the treaty. The IUCN Commission on Environmental Law convened a small consultation on environmental protection at the United Nations in New York in 1977. With the support of Elliott Richardson, who headed the U.S. delegation to UNCLOS III, and others such as Dr. Alexander Yankov, then chair of the Committee of the U.N. Conference on the Law of the Sea for the marine environment, research and technology transfer, meetings were convened to work on the new section on marine environmental protection. (126) Large contact group sessions were held in Geneva, Switzerland, in 1979 and 1980. (127) Subsequent meetings were held during the Law of the Sea Institute Conference in Kiel, Germany, and at the "Pacem in Maribus" Conference in Vienna, Austria. (128) A consensus draft of Part XII emerged and became a part of the Convention that was finally agreed to and opened for signature in Montego Bay, Jamaica, in 1982. (129)

While many individuals, national delegations, and organizations can take some credit for the innovative negotiations of Part XII of UNCLOS, IUCN's involvement was significant. Part XII reflects the innovations in national environmental law on marine stewardship that IUCN was able to explain to the international diplomats engaged in the negotiations. IUCN's sharing of scientific information in a legal context and its comparative legal analysis of national initiatives provided the precedents that were incorporated into the international norms set forth in Part XII. (130) IUCN's Commission on Environmental Law did not stop in 1982. It worked to assist nations on the national implementation of the treaty and to secure ratification. (131) By the time UNCLOS entered into force in 1994, IUCN's marine law experts had devoted nearly another decade to the implementation of the Convention. (132)

C. Convention on Migratory Species (CMS)

The Bonn Convention on Migratory Species of Wild Animals (CMS) is an important treaty for IUCN, although the CMS is not well known in North America because the United States has not yet adhered to it. Since its founding in 1948, IUCN has made a priority of protecting migratory species across all nations within the migratory range of the species. Negotiation of an international agreement to help protect migratory species also required a multi-year undertaking by IUCN staff.

The U.N. Stockholm Conference on the Human Environment in 1972 had recommended negotiation of "international conventions and treaties to protect species inhabiting international waters or those which migrate from one country to another." (133) Later that year, the IUCN General Assembly meeting in Banff, Alberta, Canada, also called for a migratory species treaty. (134) In 1974, the German government took the lead in proposing implementation of these recommendations, and invited the IUCN Environmental Law Centre in Bonn, Germany, to help. By 1975, IUCN Commission members had prepared a draft convention, (135) which the Federal Republic of Germany sent to nations with which it then maintained diplomatic relations for consultations. In 1976, a meeting was held in Germany to review the draft and the comments it spawned. The German government invited IUCN's Commission to prepare a revised draft convention in light of the comments made, and the second draft appeared in 1978.

Germany convened a diplomatic conference in Bonn in 1979; following negotiation of the final text, 21 nations signed the new treaty. (136) IUCN's Commission then consulted with these nations regarding their ratification of the CMS, which entered into force in November of 1983. (137) A Secretariat was established in Bonn, Germany. IUCN's Law Commission then addressed specific issues regarding the regional implementation of the convention. (138) IUCN's actions involving the CMS also illustrate the importance of quiet diplomacy over a period of a decade, followed by attention to the implementation of the terms of the agreement. For instance, IUCN actively participated in the development of the African-Eurasian Waterbird Agreement, (139) which grew out of the IUCN's consultations on the CMS. With the support of the Netherlands, the Waterbird Agreement was negotiated and entered into force in 1999, addressing management of the migratory range of over 235 species of birds in 117 countries. (140) IUCN's Commission and Environmental Law Centre continue to advise the Convention Secretariat in Bonn and work with state members on the elaboration of the management provisions for listed and yet-to-be-listed migratory species.

D. Convention on Biological Diversity (CBD)

While UNCLES addressed issues of pollution and environmental impact assessment of actions affecting the marine environment, the CMS addressed migratory species, and other treaties IUCN helped develop addressed parks (141) and wetlands, (142) there remained the need for a set of global norms to conserve biodiversity in all its aspects. The study of such an overarching international agreement became a priority for IUCN after the adoption of the U.N. World Charter for Nature in 1982. (143) IUCN had worked closely with UNEP to build the global consensus for the World Charter for Nature, which provided a normative framework within which other international agreements might be developed.

After four years of study within IUCN and its Commissions and with other interested groups such as the Kew Royal Botanical Gardens, (144) the Commission on Environmental Law presented a draft for a Convention on Biological Diversity in 1988 at the IUCN General Assembly held in Costa Rica. (145) The Commission on Environmental Law held a workshop to present its draft of the convention. Following revisions to this draft, IUCN shared it with other interested international organizations, including UNESCO, UNEP, Food and Agriculture Organization (FAO), and others.

IUCN's consultations with UNEP through its Chair, Dr. Wolfgang E. Burhenne, led to a consensus among states represented in the UNEP Governing Council that a convention on the subject of biological diversity was needed. Through the leadership of the United Kingdom and others, the Governing Council requested establishment of an ad hoc group to develop a convention on in situ preservation and a convention on biological diversity. The IUCN study draft became the basis for the work of the ad hoc group, which of course included IUCN's environmental law experts. In 1990, FAO had prepared a study on ex situ biodiversity conservation that also addressed issues regarding potential uses of biodiversity. The ad hoc group then recommended negotiation of a wide convention, encompassing all the elements identified as relevant.

Through the expert leadership of the head of IUCN's Environmental Law Centre, Dr. Francoise Burhenne-Guilmin, IUCN actively participated in the negotiation of the new convention. In 1991, the UNEP Governing Council convened an International Negotiation Committee made up of interested U.N. member states. IUCN Commission members such as Dr. Viet Koster of Denmark participated as delegates. After four plenary negotiating sessions, the Convention on Biological Diversity (CBD) was submitted to the United Nations Conference on Environment and Development to be opened for signature in Rio de Janeiro in 1992. The opportunity to present a further convention to the 1992 "Earth Summit" had provided the stimulus needed to conclude the negotiations, but without the IUCN study draft, the convention could not have been developed in such a short time.

IUCN continued to work on the CBD, preparing a detailed publication explaining its terms and the scientific foundations for the agreement. (146) IUCN consulted widely with states on the ratification of the agreement, which entered into force in December of 1993. (147) Consultations then began regarding national implementation of the agreement. (148) IUCN's Commission on Environmental Law was asked to assist in the negotiation of the first protocol to the CBD, the Biosafety Protocol, which opened for signature in January of 2000, (149) and in turn prepared and published another study on the legal and scientific aspects of this further agreement. (150) The Commission and Law Centre provide legal advice for the IUCN submissions to the meetings of the Conference of the Parties to the CBD.

The CBD is a framework agreement whose elements are now being elaborated by the decisions of the Conference of the Parties. (151) It is remarkable that IUCN was able to secure negotiation and ratification of this agreement in a period of six years. The global concern for the environment, manifested in the 1992 meetings in Rio de Janeiro, certainly explains the remarkable success of the effort. In accordance with the framework provided by the CBD, nations in all regions are now revising their national legislation on biological diversity issues, and IUCN is providing expertise as requested in this process.

V. IUCN'S "CREATIVE" CATALYTIC ROLE: CONCEPTUAL LAW DEVELOPMENT

These four case studies illustrate how IUCN's Commission on Environmental Law has been a creative force in shaping the elements of a new law for the biosphere at both international and national levels of government. IUCN's Commission on Environmental Law calls this process "conceptual law development." (152) This creative process requires a core of legal and scientific experts working together over a significant period of time. Conceptual law development is very different from the political advocacy campaigns of NGOs (153) or the foreign policy programs of a given government's administration, (154) because conceptual law development requires quiet diplomacy and a willingness to work through expert studies to establish the foundation for an international consensus for new reform. IUCN's Commission is willing to devote its expertise over a period of at least a decade, study the issues, discuss and brief the nations and other stakeholders, participate in formal negotiations (often taking a back seat), and work with the state parties to an agreement to assist them in their national and international implementation of conservation agreements. IUCN's Commission on Environmental Law and Environmental Law Centre are supported by modest allocations of IUCN's budget and the substantial in-kind contribution of legal services by experts pro bono publico.

IUCN, of course, is not the only organization engaged in such conceptual law development activities. Individual nations have taken such a role, as Sweden did with the design and negotiation of the Stockholm Convention on Persistent Organic Pollutants (POPs). (155) UNEP has been the principal force in this field for many multilateral environmental agreements (MEAs). (156) Several MEAs were advanced under UNEP's Executive Director, Dr. Mostafa Tolba. These MEAs include the many regional seas agreements, (157) the Vienna Convention for the Protection of the Ozone Layer, (158) the Montreal Protocol, (159) and other agreements where UNEP convened diplomatic conferences and worked with member states to prepare draft conventions and then negotiate their acceptance. Each of these international agreements is a strand in the new tapestry of international environmental law binding nations to cooperate in combating threats to the global environment from human activity and to cope with global environmental change. Like IUCN, UNEP also works to assist nations in the implementation of the national laws needed under the MEAs.

The difference between the UNEP approach and that of a purely intergovernmental international organization is that all of UNEP's work is based on the direction of its state members. In contrast, IUCN's leadership is due in large part to its commissions of senior experts who volunteer their time to advance conservation of nature and natural resources. These experts devote much of their academic or professional careers to furthering IUCN's work. They represent a pool of expert talent that cannot be bought. UNEP and similar bodies rely on hired consultants who may or may not engage the most experienced specialists available. IUCN's Environmental Law Commission represents experts from all regions, developing and developed alike, and from all legal systems, whether based upon the common law, civil law, Islamic law, socialist law, or customary law. (160) No other consultancy, even if hired by intergovernmental organizations such as FAO or UNEP, can command such a range of expertise. Moreover, no consultancy can devote over a decade of expertise to work through all steps required for conceptual law development.

The role of IUCN is difficult to assess, partially because it is a unique international organization that is overlooked by political scientists and legal experts, and partially because its accomplishments cannot be understood without studying both international public environmental law and comparative national environmental law. IUCN's unique status under international law is delineated below for the first time in a publication. (161) As IUCN becomes better understood, further legal scholarship should evaluate IUCN's contributions and in so doing advance the field of environmental diplomacy. IUCN does not boast of its accomplishments, but simply gets on with its work, leaving scholars to study and evaluate its efforts. (162)

IUCN's successful process for conceptual law development has six distinct phases. The four case studies above have illustrated these steps. They can be restated as follows:

First, IUCN's initiatives are derived from the observations and recommendations of environmental scientists. Only after the scientists associated with IUCN (163) arrive at a consensus that an environmental problem needs remediation do the environmental law specialists in IUCN begin their studies about what range of options for legal instruments or activities might ameliorate the problem.

Second, IUCN's Commission on Environmental Law convenes a team of legal experts who understand the scientific issues and can bring to bear the perspectives of different geographic regions and the world's diverse legal traditions. Cultural sensitivity is already a part of the different legal systems around the world, and an acceptable range of legal options can be arrived at by consulting in each tradition.

Third, once a proposed legal reform has been researched and described, IUCN consults with key decision makers and other environmental legal experts. (164) Because they need to be conducted globally, these consultations can last for months or years. This process combines a peer review with an off-the-record political critique. It is done without publicity and usually results in significant and realistic changes to the design of the proposed legal reforms.

Fourth, IUCN then convenes appropriate technical meetings, at which legal experts from the interested stakeholders in all affected regions study, critique, and refine the revised proposal. (165) This step has the effect of both honing the proposal and securing a degree of political support for the refined proposal.

Fifth, based on the growing consensus among legal officials from one or more nations, IUCN consults with a state that is willing to sponsor the refined legal reform, either by introducing it for action in an appropriate intergovernmental forum or by convening a diplomatic conference to adopt the reform. At this point, the process is public and interested nations assign representatives to negotiate a formal agreement using the proposal as a study draft. (166) The intergovernmental process results in the adoption of some version of the proposed reform.

Sixth, once the international agreement is in place, IUCN then works with those nations that have agreed to the reform to determine the available options for implementing the reform through national legislation and national or local administrative action. This final step is essential to the process and distinguishes IUCN's approach from that of organizations who consider their work completed once the international agreement is formally in place. When IUCN is involved, implementation, compliance, and enforcement are an integral part of the design and proposal.

These six phases of conceptual law development are based on contributing expertise and engaging in quiet environmental diplomacy. The negotiation of the first five phases can be evaluated using the traditional tools of international legal research. Evaluation of the sixth phase is more complicated. To measure and assess IUCN's role in implementing the international norms at the national level, comparative environmental legal research is required. Since comparative environmental law is a subject rarely taught in law schools, there is little capacity among most national or international environmental law experts to work across legal traditions. If the remedial purposes of environmental law are to be realized internationally, more resources must be devoted to strengthening comparative environmental law. (167) In Dubos's vision, we need to understand how local law is capable of thinking globally. (168) Today's international environmental law runs the risk of being purely formalistic, uninformed by any understanding of whether the international norms are effective within a nation.

VI. COMPARATIVE LAW ANALYSIS: AN ESSENTIAL ENVIRONMENTAL LAW PRIORITY

How can one know that the international law for the biosphere is taking root around the world? Are these treaties merely a set of policy instruments, or is the cooperation that they stimulate having an effect? What explains, for instance, whether Russia's implementation of the Kyoto Protocol (169) will be effective? To answer such questions, one must assess national environmental laws. Environmental law is a continuum of legal norms and instruments, embracing actions from the local level through the global level and vice versa.

Environmental law does not exist purely as a subfield or component of international public law, although most international law experts consider it as such. Admittedly, at the international level, environmental law serves to integrate decision making among nations, encourage the use of the same scientific methods and sharing of comparable data, and build the capacity of nations to establish environmental management regimes that permit them to implement their common agreements under the differentiated conditions appropriate to each nation. These are traditional functions for public international law agreements. Yet one cannot progressively advance or study international environmental law without paying as much or more attention to how environmental legal instruments are adopted and function at the national and local levels, often independent of any international obligations. Both sectors of law are part of the same continuum of laws governing human management of natural phenomena. Conceptual development of environmental law requires the use of comparative law.

A. The Significance of Comparative Law Techniques

Comparative law is not a branch of law, but rather a methodology. Comparative law teaches methods for finding, understanding, and applying the law of different jurisdictions, often with very different legal traditions. (170) One nation or state within a federal nation may enact the law of "manslaughter," as in the Penal Law of New York (171) (or the Model Penal Code (172)), but Parliament has not enacted such a "crime" in the United Kingdom. Similarly, when an environmental injury causes loss of human life, the criminal law sanctions in different nations can regard the event in disparate ways. Since corporations engage in the same manufacturing activities around the world, being able to compare how the environmental laws treat these same activities is of substantial importance to corporate managers. From another perspective, the lack of the manslaughter classification of criminal conduct might require a prosecutor to classify the same sort of industrial accident with loss of life as murder in one jurisdiction and the lesser crime of manslaughter in another. India's criminal indictment of the former Chairman of Union Carbide, residing in the United States, as a result of the deaths in the Bhopal tragedy in India is a graphic illustration of this point. (173)

As global patterns of trade, finance, and communications render the world a global village, it is important for lawyers to understand how the distinct legal systems of each nation relate to one another. (174) Comparisons of environmental regulations can identify why one tradition may be more effective with one sort of environmental process or rule than another tradition. (175) Comparative environmental law analysis is needed in order to understand creative environmental measures applied in one nation and apply them in another. (176) Since many environmental impacts are transboundary in effect or affect shared resources such as the oceans or atmosphere, comparative law analysis cannot be avoided.

Comparative law also brings the attorney into touch with the Roman law roots shared by the common law and civil law traditions and where those roots diverge in contemporary practice. The Roman "public trust doctrine" derives from Justinian's Institutes, (177) which took hold in England, was received as part of the common law of the United States, (178) and was recently recognized by India's Supreme Court based on the law received from Great Britain during the period of the Raj. (179) Comparative legal analysis acquaints the lawyer with how the civil law tradition has evolved in Europe and how it has taken root in South America and Meso America, in Russia, and even in Japan, which chose to adopt the German Civil Code as a model for its law reform. (180) Comparative law orients the lawyer to socialist law traditions (181) still in use in China and Vietnam and in the various oblasts and autonomous republics of the Russian Federation. This field facilitates understanding of Islamic law as a basis for government in theocratic states, where the Holy Qu'ran is the basic law. (182) In like vein, environmental norms may require an understanding of the unwritten customary laws of indigenous peoples. (183)

Because comparative environmental law is premised on studying how different legal systems address the same phenomena of the natural sciences, the problem of "incommensurability" is less troubling for the environmental lawyer. (184) Because most environmental laws have been enacted since 1972, they appear as a form of administrative law, engrafted onto the legal tradition. The same technologies cause or allow solutions to pollution; the same functions of the hydrologic cycle transfer chemicals from acid rain to surface and ground waters; the same human health impacts recur. Comparative environmental law, as a relatively new focus of study, can examine creative innovations across nations and not get bogged down in sorting through comparability issues among the jurisdictions studied. (185)

IUCN has always focused on comparative law approaches to environmental conservation across regions and nations. IUCN maintains one of the world's largest and oldest law libraries on the environmental laws of different nations. (186) Without such a reference library, IUCN's approach to conceptual law development could not have succeeded as well as it has. These materials now are increasingly collected on electronic databases available through the Internet, (187) making comparative law more accessible to environmental law specialists worldwide. How can a lawyer find this law? How does she or he interpret it? What can you learn from another nation's laws that enables you to better understand how to solve the same sort of problem that you encounter in your own country? Comparative law provides the method by which to answer these questions. (188)

Because every nation is rapidly elaborating its systems of environmental law, the techniques of comparative law are exceptionally useful. Earth's natural systems are integrated throughout the biosphere, and the effectiveness of one nation's environmental statutes is complemented or undermined by the efficacy of another nation's comparable enactments. (189) Framework treaties such as the U.N. Framework Convention on Climate Change (190) or Part XII of the U.N. Convention on the Law of the Sea increasingly set forth common obligations for different nations, but it is the national laws linked to the framework treaties that must do the real work to govern human conduct consistently. Only such national laws can restore the stratospheric ozone layer, protect migratory species, maintain the environmental systems of the polar regions, or abate acid rain.

Comparative legal analysis facilitates understanding of how environmental law is becoming a harmonized, if not congruent, body of administrative law in nations with different legal traditions. CITES is entirely implemented and administered at the national level; acting under national authority, each nation's customs officials are, in effect, the environmental enforcement agents for curbing trade in endangered species. (191) In 1992, the U.N. Conference on Environment and Development in Rio de Janeiro assigned a priority to elaborating national law in accordance with the recommendations in Agenda 21. (192) Many nations formulated a national version of Agenda 21 to guide their legislative efforts. (193) Comparative environmental law lets us understand how environmental law can provide the harmonized means toward sustainability.

Employing comparative law techniques is key to identifying where environmental laws are being implemented effectively at the national level, even when there is no treaty to guide them. This is true in the case of managing national parks or engaging in environmental impact assessments of actions. One can also identify how each nation innovates to implement an international norm, such as those in a multilateral environmental agreement. In the first instance, the importance of comparative law can be illustrated by briefly reviewing national regimes for the law of environmental impact assessment. In the second instance, comparative law affords access to national laws in order to discern how coastal zone management techniques help to implement UNCLOS Part XII.

B. Environmental Impact Assessment

Environmental impact assessment (EIA) has become perhaps the most common procedure that governments worldwide can employ as a way to cope with environmental change. (194) EIA was initially an American idea, born with the enactment of the National Environmental Policy Act of 1969. (195) Almost immediately, Ontario, Canada; New South Wales, Australia; California; and New York City enacted laws based on NEPA. (196) Gradually since then, national governments as well as local authorities have been enacting EIA laws. (197) The European Union's Directive in 1985 launched the Dutch and French revisions to their EIA laws and introduced EIA into the laws of the United Kingdom and elsewhere. (198)

By the time the United Nations convened its Conference on Environment and Development--the Rio de Janeiro "Earth Summit"--in 1992, EIA had gained international support. Principle 17 of the Rio de Janeiro Declaration provides, "Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority." (199) While all provinces and states in Canada (200) and Australia (201) have enacted EIA, only 19 of the states in the United States have done so. (202) EIA is widely adopted and used in developing nations. (203)

EIA is exceptionally useful in addressing environmental change because it is flexible and contextual. Every impact needs to be factually evaluated in terms of its short-term and long-term effects, alternative means of attaining the desired result, unavoidable impacts, and ways to mitigate adverse effects. (204) EIA requires public disclosure of the environmental analysis and the opportunity for public comment. (205) At its best, EIA is a full disclosure and mediation or conflict resolution process. All stakeholders can present their views, and their interests are taken into account. Where EIA procedures are avoided or incomplete, judicial review is available to ensure that the procedures are followed. (206)

Since EIA examines the cumulative impact of actions, (207) it is well suited to assessing how incremental additions of carbon dioxide emissions can be avoided, how habitat for migratory species can be enhanced, or how energy conservation can be best achieved. EIA can take into account increased storm water runoff levels as a consequence of climate change and require measures to retain increased storm waters on site. EIA can anticipate sea-level rise and the impacts on developments in coastal zones and flood plains. All this can be done without the need to revise local ordinances or bylaws or state and national statutes.

EIA can also be used for programs and planning. "Strategic Environmental Assessment" in European practice, (208) the programmatic EIS in NEPA practice, (209) and the generic EIS in practice under the New York State Environmental Quality Act (210) allow agencies to take an in-depth early look at how overall programs can avoid adversely affecting the environment. EIA is almost entirely a matter of national law. It is the subject of two treaties negotiated through the U.N. Economic Commission for Europe: the Espoo Convention on Environmental Impact Assessment in a Transboundary Context (211) and the more comprehensive Arhus Agreement on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. (212) Both treaties have entered into force. The latter mandates EIA on a pan-European basis and has been ratified by all of the former Republics of the U.S.S.R. except Russia. Although the United States is not a party to either agreement, NEPA applies in a transboundary context in North America. (213) A somewhat weaker law governs in Russia. (214)

Despite the near universal applicability of EIA procedures, there are still many who resist the use of EIA. Ministries and project proponents who "know" they want their project or will economically benefit from it are less interested in taking the time to restudy the impacts of their projects. Parties who view development as an entitlement are often uninterested in the side effects on other stakeholders. EIA is only well-regarded when parties understand the need to take a broad environmental view in light of the ecological links, social consequences, and long-term cumulative impacts of the proposed action. Often they need to walk through the process to attain this understanding, which is why strict enforcement of procedures requiring agencies to take a "hard look" at impacts is needed. In this regard, the U.S. Supreme Court is entirely correct in requiring strict adherence to EIA procedures. (215) Because environmental analysis cuts across borders and can extend beyond a single jurisdiction, EIA requires states to look at change beyond their boundaries. The fact that environmental laws already require the use of EIA across many regions means that methods for assessing sea-level rise or any other environmental effect could be rapidly designed on a standardized basis and instituted widely. Comparing EIA procedures among different nations provides useful insights regarding how to enhance this environmental law as it is applied. Innovations in using EIA to cope with the effects of climate change (216) will be an important focus for future comparative law studies.

EIA is similar to another environmental tool, coastal zone management (CZM). EIA should, of course, also be used in all specific actions in the coastal zone. CZM, or "integrated coastal zone management" as it is called in Asia and elsewhere, seeks to manage competing uses for the coasts through a planning process that can anticipate possible conflicts and adverse effects and avoid them.

C. Coastal Zone Management

Since most of the world's population chooses to live along the coasts of oceans, lakes, and rivers, conflicts over competing economic and social demands for coastal resources arise often. To cope with such conflicts, recent legislation has required coastal planning procedures that anticipate and avoid such conflicts by mapping coastal zones and adopting procedures to select certain uses when more appropriate to a site than others. The first statute to set up such a process was the Coastal Zone Management Act of 1972, (217) in which the U.S. Congress provided resources for the states to inventory and zone their coastal areas pursuant to a standard set of policies. Once the state zones were enacted and found to be consistent with the federal standards, all federal agencies were required to follow the state's zoning decisions. (218) In this way, consistency in decision making on the coasts could be assured at local, regional, and national levels of government.

Following the successful implementation of coastal zone management in the United States, others sought to explain and urge implementation of the process in other regions. Chapter 17 of Agenda 21 outlined the purpose and process of CZM. (219) In order to differentiate it from mere spatial zoning or allocation of land uses under a town and country planning system, the U.N. Conference on Environment and Development emphasized in Agenda 21 the use of "integrated" coastal zone management (ICZM). (220) ICZM encourages the integration of social, economic, and environmental uses of coastal areas and resources in a more comprehensive way: "Coastal states commit themselves to integrated management and sustainable development of coastal areas and the marine environment under their national jurisdiction." (221)

In response to the recommendations of Agenda 21, organizations like the World Bank, IUCN, FAO, and UNEP prepared and published guidelines for IZCM. (222) In Asia, UNEP launched extensive capacity-building programs to educate officials on the use of ICZM. (223) The Association of South East Asian Nations (ASEAN), with grant support from the U.S. Agency for International Development, studied CZM in Southeast Asia from 1986 to 1992, eventually recommending use of ICZM in that region. (224) As a result, ASEAN nations came to use ICZM widely. (225) The United Nations Development Programme (UNDP) successfully supported application of ICZM in the Philippines' Batangas Bay and in China's Xiamen Province. (226) UNEP also promoted the use of ICZM within the Wider Caribbean Region. (227) Comparable coastal land-use planning procedures exist in Western Europe. (228)

ICZM has been emulated by many nations because its process has proven to be effective. Nations implement ICZM voluntarily; there is no obligation to do so under any treaty. To date, ICZM has addressed ways to reconcile contending claims on the same scarce coastal resources. In the future, however, all CZM and ICZM programs will need to cope with the effects of climate change and sea-level rise. Rather than merely providing for ways to manage competing uses, future coastal planning must help all users adapt to higher flood tide surges and more pervasive coastal erosion accompanying higher average water levels. There will be a need to restore or enhance coastal wetlands as buffers against storm surges and to avert erosion of upland areas, as well as a need to provide habitat for coastal fish and shellfish resources, as former habitats may be adversely affected with sea-level rise and intense coastal storms. Coastal infrastructure for shipping, docks, and channels will need to be reassessed in light of sea-level rise.

In short, ICZM must become "Adaptive" CZM (ACZM). Environmental law needs to anticipate the sort of new procedures coastal regions will need to develop. The cascade of excess reactive nitrogen washing off from fertilized lands into coastal waters is already causing "dead zones." (229) Land-based sources of pollution have not been effectively controlled in most regions of the Earth. ACZM will need to leverage a renewed commitment to removing pollutants, while providing means to cope with the new challenges resulting from sea-level rise. Since relative sea-level rise of a meter or more is predicted during the coming century as polar glacial ice melts, (230) nations should prioritize developing ACZM policies and practices. IUCN, other bodies such as UNEP, and even regional organizations can help accelerate such planning and assist nations in implementing ACZM. Comparative law techniques can be used to identify successful ACZM models from given nations so that other nations can study the examples and adapt them to their own circumstances.

D. Insights Gained Through Comparative Law

Various national governments have made innovations as they implement both EIA and ICZM within their environmental protection systems. Without the comparative study of national environmental law, it would be difficult to perceive the widespread use of these techniques, much less the more innovative features. Enactment of EIA or ICZM laws will not be evident from an examination of the environmental obligations of states under international law. Nations choose to adopt such techniques when they encounter environmental problems and seek ways to manage them. As governments consider how other nations have dealt with comparable situations, they choose to emulate procedures that appear attractive. A more systematic and robust use of comparative law techniques could advance the transfer of environmental conservation experience among nations.

Comparative legal research can also assist in gauging how capable a nation may be in implementing new international environmental obligations or how effective the nation is in complying with obligations already assumed. Since the natural systems of the biosphere interact and are interlinked, the laws for their protection are only as strong as the weakest legal link. Implementation of the U.N. Framework Convention on Climate Change depends on containing the greenhouse gas emissions of each signatory nation. Similarly, enhancing the migration of a species requires conservation of habitat throughout any given species' range. Analysis of national environmental law regimes is necessary in evaluating the implementation of environmental treaties.

For instance, as the Kyoto Protocol to the U.N. Framework Convention on Climate Change enters into force, (231) an international law perspective might commend the Russian Federation for its adherence and criticize Australia or the United States for not joining the convention. This view ignores the many measures adopted by state governments in both the Australian and American federations to curb greenhouse gas emissions. (232) Moreover, the international perspective based on formal ratifications tends to assume that the Russia Federation and Japan can and will implement the Kyoto Protocol's terms. Japan clearly has the technological capacity to reduce greenhouse gas emissions by six percent from the 1990 levels between 2008 and 2012, but domestic economic and political opposition to making the adjustments needed to do so make such reductions unlikely. As London's Financial Times has observed, "Japan's only chance of meeting its targets is to buy huge amounts of credits, particularly from Russia.... Japan is likely to become one of the most active emissions trading markets." (233) Having closed obsolete industrial facilities after 1990 with the end of the Soviet Union, the Russian Federation emits fewer greenhouse gases and thus has credits to sell. (234) Yet there is little indication that in return for the sale of its credit, the Russian Federation will enhance its environmental laws or its capacity to make the further reductions in greenhouse gases that eventually will be needed to stabilize climate conditions.

Comparative law analysis permits a more profound understanding of when nations will be able to implement environmental laws and when that implementation is unlikely. Until political consensus exists to support implementation, governments may view environmental laws as disruptive of settled rights and entitlements, and thus may seek to limit the scope or effect of such laws. (235) Consider, for instance, the reluctance of the U.S. Supreme Court to further the remedial intent of environmental laws. (236) Despite the creative conceptualization of EIA in NEPA in 1969, the U.S. Supreme Court has consistently read NEPA only to embrace a procedural rule, ignoring its substantive mission to guide decision makers to anticipate and avoid or mitigate adverse environmental impacts. (237) On the other hand, 34 American states (which make up 99.9 percent of the nation's coastline) have enacted coastal zone management laws, providing effective management of demands on scarce coastal resources. (238)

Jurists in the United States, of course, are not alone in misunderstanding the legislative purpose of environmental laws. The Russian Federation makes up 40 percent of the northern hemisphere, and how the Federation protects its environment and implements its obligations under multilateral environmental agreements is critical to the biosphere. The Russian Federation is a party to the U.N. Framework Convention on Climate Change and the Kyoto Protocol, but comparative legal analysis of the condition of the Federation's domestic environmental law produces grave concerns as to its capability to implement its obligations under either treaty.

Before its dissolution, the U.S.S.R. was on the verge of shaping important environmental law reforms. (239) Environmental cooperation with the United States and others had advanced sharing of environmental data and joint efforts to combat pollution and conserve resources. (240) After the U.S.S.R. dissolved, however, the focus on environmental matters declined markedly in the newly formed Russian Federation and elsewhere in the former U.S.S.R. Since the privatization of the state industries and the shift of economic power from government to oligarchs in various commercial sectors such as oil, gas, and banking, governmental agreements to restore damaged environmental areas and address new environmental challenges have been set aside. President Vladimir Putin was persuaded to abolish the Ministry of the Environment (Minpriroda) and even to merge the environment agency (Goskompriroda) into the Natural Resource Ministry, the agency charged with developing and exploiting natural resources. (241)

Other authorities in the Russian Federation have challenged this neglect of environmental protection. The Commissioner on Human Rights, Oleg Orestovich Myronov, submitted a report to President Putin and to the State Duma, the parliament of the Russian Federation, in October of 2002, entitled "The Environment and Violations of Human Rights." (242) The Commission on Human Rights is established under the Russian Federation's Constitution and thus is not subject to executive termination like the state environmental agency. (243)

Although the Russian Federation strengthened its "Law on Protection of the Environment," (244) adopted an administrative decree on "Ecological Doctrine" in 2002, and increased federal funding for some aspects of nature protection, most of the norms prescribed by law are not yet implemented in practice. Former Human Rights Commissioner Myronov recognized these deficiencies, noting that the state bodies for sanitary and epidemiological supervision have not addressed the pollution from the economic sector: "Approximately one sixth of the territory of the country, residence to about 60 million people, is environmentally unsafe." (245) Air and water pollution are unabated in most urban and industrial areas, (246) and contamination from radioactivity is a continuing crisis in many areas. (247) The Commissioner found violations of the rights of the indigenous peoples to their traditional wildlife management, (248) and he determined that the Russian Federation's Constitutional guarantees of full access to environmental information were being denied in a number of instances. (249)

The Commissioner's report documents the slow implementation of government programs for sanitary protective zones and recites the failure to prosecute environmental crimes. The report is extraordinary in providing an overview of how the Federation's declared environmental values are largely disregarded in practice. Commissioner Myronov's report indicates that when normal administrative systems for environmental protection are impaired and the problems of environmental health are acute, it is necessary for special state bodies to act. The Commissioner concluded his report soberly:

   The care for nature is the care for people. The protection and the
   rational use of the environment is an important prerequisite for
   the well-being of the society, its further life and development.
   Otherwise, the grandsons and greatgrandsons of the people living
   today will inherit the country polluted with radiation and heavy
   metals, the country with no forests, with rivers that look like
   sewage ditches, with shoaled and poisoned seas. The result of all
   of this is going to be poor health of the population, congenital
   illnesses and genetic disorders. (250)

With these domestic crises and much of the nation being denied its basic human right to a livable environment, it is easy to see why the Russian Federation will struggle in fulfilling its Kyoto Protocol obligations: the Federation's systems of implementation for meeting the obligations of a treaty simply do not exist. Study of the Human Rights Commissioner's report does more than illuminate shortcomings in how the Russian Federation implements its environmental laws; the dissemination of the report is itself a part of international environmental cooperation. The Center for Russian Environmental Rights in Moscow, headed by Dr. Alexey Yablokov, arranged with the Commissioner for Human Rights for the translation and international publication of this report. The Russian Federation is a state member of IUCN, and the Federation's environmental law experts have been leaders in the IUCN Commission on Environmental Law for many years. (251) Yablokov serves as a member of the Council of IUCN, and a grant from IUCN's Commission on Environmental Law supported the translation and publication of the Human Rights Commission's report in English. IUCN's Commission on Environmental Law cooperates with colleagues in the Russian Federation, helping build the Federation's environmental law capabilities wherever possible.

Comparative law is an integral part of the process of conceptual law development in the work of IUCN's Commission on Environmental Law. Without recourse to comparative law techniques, it is difficult to assess the effectiveness of both international and national environmental regimes. IUCN's operations, working both locally and globally, have prompted it to employ comparative law actively in national and international law. All those who would build environmental law worldwide need to study and use this experience.

VII. IUCN's UNIQUE STATUS AS CATALYST FOR INTERNATIONAL COOPERATION AND THE PROGRESSIVE DEVELOPMENT OF ENVIRONMENTAL LAW

Greater use of IUCN's experience in conceptual law development on the part of nations, international organizations, or NGOs could strengthen and extend the evolving environmental law for management of the biosphere. IUCN represents opportunities to creatively apply new environmental laws to sustain development and the natural systems that development depends upon. Through IUCN's commissions and the combined efforts of its members, IUCN is a catalytic agent for conceptualizing and implementing new laws for Earth's biosphere. IUCN has the legal status and capacity to expand its creative roles. To understand how IUCN functions differently from nation states, the UN's specialized agencies and subsidiary organs, and other international organizations, it is important to understand the sui generis status that IUCN enjoys under international law.

IUCN is constituted through its Statutes. (252) Following a three-year period of consultation and deliberation, the World Conservation Congress (formerly the IUCN General Assembly) revised the IUCN Statutes of 1948 at its members' meeting in Montreal, Canada in October of 1996. (253) The revised Statutes were adopted by unanimous consent of all IUCN state members and nongovernmental organization members.

Article 1 of the IUCN Statutes provides as follows:

   The International Union for Conservation of Nature and Natural
   Resources (IUCN) (also known as The World Conservation Union)
   is constituted in accordance with Article 60 of the Swiss Civil
   Code as an international association of governmental and
   non-governmental members. Therefore, it has legal personality
   and may perform any act in accordance with its objectives. (254)

The objectives of IUCN were also revised and restated in article 2 as follows:

   The objectives of IUCN shall be to influence, encourage and
   assist societies throughout the world to conserve the integrity
   and diversity of nature and to ensure that any use of natural
   resources is equitable and ecologically sustainable. (255)

IUCN is unique among international organizations in that it was created by and has consistently possessed a membership of sovereign states, (256) state governmental agencies, (257) international and national nongovernmental organizations (NGOs), (258) and nonvoting affiliate members. (259) IUCN's decision making process at its World Conservation Congress occurs through a bicameral voting process. The IUCN members' delegates accredited to the Congress sit collectively; however, the states and governmental agencies vote in one chamber, while the NGOs vote in another chamber. Under IUCN's Statutes, each state member has three votes in the World Conservation Congress, one of which is shared by that state's government agency members; the national NGO members have one vote; and the international NGO members have two votes. (260) This weighted voting, and the fact that a majority of the states must vote in favor of any decision taken at the Congress for that decision to be adopted, defines the intergovernmental character of IUCN.

IUCN's constitution is unique among international organizations, and therefore it is necessary to provide some clarifications regarding IUCN's legal status. In understanding the unique characteristics of the IUCN Statutes, it is useful to examine two issues: 1) the state acts which created IUCN in 1948 (the states that established IUCN knew they were founding a unique, new international organization for conserving nature and natural resources); and 2) IUCN's legal status under international law and the Union's relationship with member states under municipal law.

A. The Acts Constituting IUCN

When IUCN was founded in 1948, it marked the culmination of over three decades of work following the initial recommendations of a diplomatic conference in 1913. (261) Acting in response to recommendations from the Ligue Suisse pour la Protection de la Nature, (262) the International Association of Game, Fish & Conservation Commissions, (263) the Congress of Zoology, (264) and the representatives of 17 nations (265) convened in Berne, Switzerland, in 1913 and agreed to establish an international commission for the international protection of nature. Unfortunately, World War I interrupted this initiative, and when the 16 states met in Paris in 1921 to reactivate the Commission, there was insufficient support from the Ligue Suisse pour la Protection de la Nature and the Swiss Confederation to launch the body. Thereafter, in 1925 and 1928, the International Union of Biological Sciences (266) called for the establishment of an international union for conservation, and finally the International Office for the Protection of Nature was established as an expert NGO in 1935 to further cooperation with national conservation programs.

Immediately following the Second World War, governments, scientific bodies of experts, and NGOs again called for establishment of an international organization to address the conservation of natural resources around the world. The United Nations Educational, Scientific and Cultural Organization (UNESCO) agreed to convene a meeting to establish the new body, but refused to limit membership to governments alone. In 1947, a preparatory meeting attended by representatives of the U.N. Trusteeship Council, UNESCO, FAO, 23 states, and several NGOs convened in Brunnen, Switzerland. (267) The meeting prepared a draft provisional constitution for the International Union for the Protection of Nature and called upon UNESCO to convene a conference to establish the new union and build on the initial 1913 diplomatic recommendations. (268)

Following this, the UNESCO General Conference instructed its Director General to convene an international technical conference for the protection of nature at its second session sitting in Mexico. The Ligue Suisse pour la Protection de la Nature urged UNESCO and the Republic of France to convene the meetings in France. Eventually, it was mutually agreed that France would invite other states, UNESCO would invite international organizations, and the Ligue Suisse pour la Protection de la Nature would invite the NGOs. (269)

UNESCO organized the Constitutive Conference of the International Union for the Protection of Nature in France at Fontainbleau, from September 30th to October 7th, 1948. At the same time, UNESCO also arranged a scientific technical meeting on conservation. The need for the new IUCN to have scientific commissions of experts was evident from its founding: most of the scientific experts for conservation were employed by universities and institutes, rather than states or their ministries. Since 1948, IUCN has enjoyed the contributions of the world's leading experts on subjects related to conservation.

At Fontainbleau, it was decided that the new Union should have both state and NGO members, giving it a unique constitution well suited for the special challenges of harnessing public and private interests needed to achieve conservation. (270) It was also agreed that the new Union should assist the then newly established United Nations system. The Preamble to the 1948 Statutes declared,

   'Protection of Nature' is a matter of vital concern to all nations,
   and furthering of it is the primary concern of no single effective
   international agency [and] ... it would be of assistance to various
   governments, the United Nations and its Specialized Agencies and
   other interested international organizations, if an effective
   international agency were established for the 'Protection of
   Nature.' (271)

Acting on these premises, the Statutes established a role for scientific experts, organizing them into commissions whose mandates and chairs would be decided by the General Assembly. This remains IUCN's method of directly involving scientists in its work. For example, in 1996 the World Conservation Congress voted on the mandates for six commissions of scientific experts and elected their chairs. (272)

IUCN's governance was structured to efficiently utilize both public and private expertise. (273) Originally, the IUCN General Assembly was comprised of both state and NGO members voting together; the division of the assembly's governance into state and NGO voting chambers was established in amendments to the IUCN Statutes adopted in 1956 at Edinburgh, Scotland. (274) IUCN's founding states also created a novel means of associating the state members with the NGO members by structuring the Statutes for the new Union under the expansive provisions of article 60 of the Swiss Civil Code. (275) In this format, the constitutive process for the new Union permitted states to become members of IUCN simply by announcing their decision to "adhere" to the Statutes, government agency members were permitted to join with the consent of their state, and NGO members were admitted to membership by decision of the IUCN Governing Council, which was elected by the General Assembly. (276)

The Statutes constitute a treaty obligation on the part of the states adhering thereto, (277) and a corporate and contractual obligation on the part of the NGOs admitted to membership. The Statutes in 1948 provided that "[t]he Executive Board may take such action as it considers desirable to give the Union legal capacity in the countries in which it operates that may be necessary for the fulfillment of its objects." (278) Under the principles of the international law of cooperation in the Charter of the United Nations, (279) IUCN became yet another of the growing number of specialized international organizations established immediately following World War II mandated to draw together the expertise on how best to conserve nature and natural resources.

IUCN and its members have been so successful in this mission that IUCN's concept of "sustainable development" (280) was endorsed in the 1987 Report of the U.N. World Commission on Environment and Development, (281) and later became the policy theme for the recommendations of the United Nations Conference on Environment and Development (UNCED) in 1992. (282) One of the hallmarks of UNCED recommendations was the call for a partnership between public and private interests to work toward realizing sustainable development. For the past 50 years, IUCN's state members, governmental agency members, and NGO members have demonstrated how one unique international organization can work to make this partnership a reality.

Today, IUCN's members meet every four years in the World Conservation Congress to adopt the program and budget for the Union, establish the mandates for its commissions of scientific experts, elect the governing Council and chairs of its commissions, and adopt policy directives for the Union. IUCN has members and offices in each region of the world. IUCN currently is comprised of 82 states, 112 governmental agencies, and 774 nongovernmental organizations. (283) Altogether, IUCN has some 927 members in 138 states, as well as Palestine and certain territories. (284) The seat or headquarters of IUCN is situated in Gland, Switzerland, where its governing Council meets.

B. IUCN's Legal Status Under International Law

IUCN's unique character under international law can be evaluated from several perspectives. First, the international personality of IUCN must be understood. Second, IUCN's own Statutes constitute a kind of lex specialis, which states acknowledge under international law. Third, state practice has been to accord IUCN recognition as an intergovernmental organization. Fourth, and finally, IUCN's status under municipal law facilitates its transnational mission and activities.

1. International Law Criteria for Determining international Personality

IUCN's legal personality has been recognized under international law. IUCN is an international person in terms of the criteria accepted in international law as indicia of legal personality. In light of decisions of the International Court of Justice, as well as general state practice, Dr. Ian Brownlie restates these criteria as follows:

1) [A] permanent association of states, with lawful objects, equipped with organs; 2) a distinction, in terms of legal powers and purposes, between the organization and its member states; 3) the existence of legal powers exercisable on the international plane and not solely within the national systems of one or more states. (285)

While one may restate these criteria broadly, Dr. Brownlie cautions that "these criteria relate to delicate issues of law and fact and are not always easy to apply." (286) Dr. C.F. Amerasinghe has aptly described the nature of international institutional law as "inherently a lex specialis, a law proper to each organization, lacking general implications." (287) The International Court of Justice, ruling in Reparations for Injuries Suffered in the Service of the United Nations (Reparations), (288) observed that "the rights and duties of an entity such as the Organization must depend upon its purpose and functions as specified or implied in its constituent documents and developed in practice." (289) Dr. Amerasinghe elaborated on the International Court of Justice rifling in the Reparations case:

   (i) [T]he fulfillment of these criteria is to be tested in relation
   to the 'intention' behind the establishment of the organization as
   reflected in the objective circumstance of such establishment
   including the constitution of the organization ... and (ii) any
   negative elements in those circumstances, including the
   constitution, must be taken into account in determining whether
   international personality does not exist. (290)

Commentators have applied these criteria to evaluate whether an organization has international personality using either the inductive approach (examining the rights and duties conferred by states upon the organization and deriving the status therefrom) (291) or the objective approach (examining those aspects of the organization's structure which indicate international characteristics to find whether international law would accord recognition to the organization). (292) Under either of these methods of evaluation, IUCN has the constitutive indicia of international personality.

IUCN is a permanent association of states with international and nongovernmental organizations that was formed to advance conservation of nature and natural resources. IUCN is equipped with the organs necessary to obtain these objectives; it has a plenary assembly of members, a governing Council, specialized commissions of experts, and a permanent international secretariat, including a headquarters and offices around the world. (293) Moreover, there is a clear distinction in terms of legal powers and purposes between IUCN and its member states; the biosphere of the Earth consists of interrelated natural systems that extend beyond the jurisdiction and control of any one state. The state members of IUCN have acknowledged that this scientific interdependence necessitates their cooperation through IUCN. IUCN meets the needs that its member states cannot meet alone. Finally, IUCN has duties assigned to it by states under its Statutes, several different environmental international agreements, and through its regional and bilateral agreements with certain states, which oblige IUCN to operate internationally and not solely, or even partially, within the national systems of one or more states.

In the founding of IUCN and in the repeated acts enhancing IUCN's functions, the state members of IUCN have defined its duties and functions on an international plane. As Dr. Manuel Rama-Montaldo has observed,

   It may now be considered to be customary international law that
   every time States create an organization fulfilling those objective
   preconditions they endow it with international personality as
   already defined. However, since it is for the States to create the
   preconditions of the existence of a complete international person,
   they are also entitled to limit by constitutional provisions some or
  other of the rights arising from that personality. (294)

The states that established IUCN by the Act of the UNESCO Conference in 1948, and the states that have since adhered to the IUCN Statutes, have established IUCN as an international juridical body for the specifically delimited role of advancing conservation and sustainable natural resource use. Thus, IUCN serves a mission on which all states depend and which no state can accomplish alone.

2. The Lex Specialis of IUCN as an International Person

IUCN's structure and activity illustrate the international personality of the Union. IUCN is established as an international organization solely in command of the decisions affecting its operations. IUCN exists in order to maintain the integrity and diversity of nature and the equitable and sustainable use of natural resources. (295) The members of IUCN agree to these ends, and they thus have the right to participate in the World Conservation Congress, (296) nominate candidates for election to IUCN's offices, submit motions to the Congress, and vote in sessions of the Congress and at other times via mail ballot, (297) The members undertake express obligations to support IUCN's objectives, pay the assessed dues, and submit information to IUCN relevant to these duties. (298) Failure to meet these obligations results in the suspension of the right to vote or of membership. (299) Over the past 50 years, both state and NGO members have had these sanctions applied to them. Many nations have also undertaken to host the World Conservation Congress (300) and have entered into formal, written agreements with IUCN both to contribute to bearing the extraordinary costs associated with the Congress and to ensure that "all persons entitled to attend the World Congress shall be admitted to that State without discrimination" and that "all participants ... shall have the right of free expression in the sessions of the World Congress and associated meetings." (301)

One of the clear attributes of international legal personality is an entity's autonomy in its decision-making process. IUCN clearly possesses this autonomy. No state or other international organization can direct IUCN; only its members have this right. As discussed earlier, (302) IUCN's Statutes provide the methods of voting separately for states and for NGO members; (303) states enjoy a weighted three votes, with their government agency members voting within one of the votes allotted to the state of which that agency member is a part. (304) The Statutes further provide that a decision of the Congress shall be deemed taken only if a simple majority of the states voting agree to favor a question put to a vote, and a simple majority of the NGOs voting also agree. (305) The Congress takes all the business of the Union, including appeals from various decisions. (306) In addition, IUCN's members determine their internal procedures, and have adopted formal regulations to that end. (307) The Rules of Procedure of the World Conservation Congress were initially adapted from the Rules of Procedure of the United Nations General Assembly. (308)

The World Conservation Congress elects a Council which has the powers of the Congress when the Congress is not sitting and can amend the Regulations of IUCN. (309) The Council also appoints the Director General of IUCN. When adhering to IUCN's Statutes, the state members of IUCN agree to "respect the exclusively international character of the responsibilities of the Director General and the staff, and not seek to influence them unduly in the discharge of their responsibilities." (310) The Congress also defines the mandates and programs for the specialized commissions of experts, each of which has the academic or professional independence of its discipline. This expertise and its role in IUCN is independent and accountable ultimately to the Congress alone. The Council reports solely to the Congress and its members.

3. State Practice with Respect to IUCN's International Personality

Beyond these constituent characteristics of IUCN, external recognition of the Union's functional attributes also indicates its international status. As set forth below, IUCN is treated as an international organization with the capacity to enter into agreements with other international organizations; IUCN is recognized as an international juridical person in a number of treaties, including four multilateral agreements; and IUCN's mission and role within the international law principles of cooperation give it a unique character among international organizations.

a. Capacity to Enter Agreements

IUCN has entered into a number of international agreements with other organizations. For instance, IUCN and the United Nations (through the United Nations Environment Programme) have agreed to establish a Joint Environmental Law Information System (JELIS). (311) IUCN has several special agreements with UNESCO and provides services to the UNESCO Secretariat for UNESCO programmatic obligations. By mutual agreement, IUCN prepares for the United Nations Secretary General the United Nations List of Protected Areas. (312) IUCN has entered into formal agreements for cooperation with the United Nations Development Programme and the United Nations Environment Programme, among other agencies.

b. Treaty Recognition

States have assigned duties and obligations to IUCN under a number of international agreements. Not all the state parties to these international agreements are members of IUCN, and thus a significant number of IUCN non-member states have acted to accept IUCN's juridical role under these treaty regimes. Under the UNESCO World Heritage Convention, the state parties have constituted a World Heritage Committee; the Convention requires that this Committee "cooperate" with IUCN and provides that "for the implementation of its programmes and projects, the Committee may call on such organizations, particularly ... the International Union for the Conservation of Nature and Natural Resources." (313) IUCN prepared the initial proposals for and participated in the drafting of the Washington Convention on the International Trade in Endangered Species and maintains a role as chief scientific advisor to the Conference of the Parties in application of article XI, paragraph 7. (314) IUCN is expressly assigned secretariat functions for the Conference of the Parties under the Ramsar Convention on Wetlands of International Importance where the state parties provide in article 8 of the Convention that IUCN "shall perform the contInuing bureau duties under this Convention." (315)

Additionally, IUCN is an active expert participant in several of the Antarctic Region treaties, (316) and the states party to the Wellington Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA) have expressly authorized the Commission established by CRAMRA to "cooperate with the International Union for the Conservation of Nature and Natural Resources." (317) IUCN participated in the formulation, negotiation, and implementation of the Rio de Janiero Convention on Biological Diversity (IUCN serves as a principal scientific advisor to the Conference of the Parties in application of article 23, paragraph 5) (318) and other international agreements. (319) IUCN has also initiated and facilitated adoption of numerous "soft law" instruments such as the World Charter for Nature. (320) In light of these formal treaty obligations that states have invested in IUCN, it is evident that IUCN is both a "subject of international law" as that term is used in article III of the Vienna Convention on the Law of Treaties (321) and maintains international personality because it independently performs international expert and policy roles--initiating studies, proposing protocols and new conventions, entering into agreements with states and international organizations, assisting states in treaty implementation, and providing expert advice.

c. Increasing Cooperation

IUCN's international role has expanded substantially as states and scientists have come to a more complete understanding of the challenges of maintaining healthy conditions on Earth. Since the United Nations Conference on Environment and Development in Rio de Janeiro in 1992, all states have acknowledged the importance of IUCN's functional mission. IUCN's evolution is not unlike that of other sui generis international organizations, such as the International Committee of the Red Cross (ICRC). ICRC is also juridically organized under article 60 of the Swiss Civil Code, but now has international status under humanitarian and international law, has duties assigned to it under the Geneva Conventions, and has been accorded Observer Status by the United Nations General Assembly. However, unlike the ICRC, IUCN has immediate and controlling participation of states in its governance as full members of the organization. IUCN's international legal status has evolved since 1948 and continues to evolve. IUCN may perform any international act it is in a practical position to undertake within the limits set forth in the IUCN Statute, and so long as it does not impose obligations on its member states without the states' prior agreement. (322)

This pattern of international organizations serving specified functions has been in existence since the founding of the Rhine (1815) and the Danube (1856) Commissions, (323) the Universal Postal Union (1874), the ICRC, and others. The International Court of Justice recognized that the capacity to function on the international plane was an essential element of international personality. (324) Since IUCN has developed new programs beyond those of any of its members, IUCN serves its members in ways not otherwise available to them. It is evident that IUCN meets the criteria for international personality: IUCN's World Conservation Congress and Council express a will detached from that of the member states and possess defined objectives to be attained through the fulfillment of the functions of the Union. (325)

The states adopting the IUCN Programme in the World Conservation Congress have assigned to IUCN numerous international duties, especially with respect to building the capacity of developing nations for sustainable development. No one nation can save a migratory species if the habitat of that species is preserved in one nation but destroyed in another; no one state can stop hazardous chemicals from entering its ecosystems and food chains from another state unless the discharges in the other state are controlled; no downstream state can prevent the flooding from natural resource misuse by an upstream state. Solving these problems calls for the expertise of an institution such as IUCN. The IUCN Programme facilitates the cooperation of the public and private sectors, the work of national and local authorities, and the expertise of scientists and citizens alike.

4. IUCN's Legal Capacity Under Municipal Law

Even though IUCN meets the generally accepted criteria for international status under public international law, it is generally acknowledged that the presence of "international personality" under international law does not necessarily determine the organization's status under municipal law. (326) Thus, it remains necessary for each state also to accord to IUCN such legal capacity as IUCN requires for its operations with and within that state. (327)

IUCN has entered into agreements with a number of states where it operates offices. These agreements accord IUCN such privileges and immunities as are necessary for the performance of the Union's functions in that state. IUCN has entered agreements with the Swiss Federal Council, the United States, Equador, and Kenya in regard to exemption from taxation of personnel, exemption from duties, free movement of staff, and other matters. These agreements are premised upon recognition of IUCN's international personality and constitute "organizational immunities" as appropriate to the objectives and functions of IUCN. (328) As noted above, IUCN has regularly entered into written conference agreements with the states that undertake to host the World Conservation Congress and its predecessor General Assembly. (329)

IUCN's members have chosen to resolve questions of a private law nature with respect to the headquarters secretariat of IUCN by choosing to be constituted in accordance with article 60 of the Swiss Civil Code. (330) Recourse to Swiss law has facilitated the organization and operation of the IUCN Secretariat. Such a choice of law provision is in keeping with the functional development of IUCN's programmes. (331) Similarly, IUCN chose Swiss law to govern the disposition of assets in the unlikely event of dissolution. (332)

IUCN's member states recognize the international personality of IUCN even in the absence of formal agreements with IUCN. (333) States that are not members of IUCN have legal procedures to recognize the juridical status of IUCN under their municipal laws, as is demonstrated by IUCN's work in over 65 nations that have not yet adhered to the IUCN Statutes. All nonmember states are also obliged to recognize IUCN's international personality under the principles of international law of international organizations set forth above.

In April of 1998, IUCN's Council decided to approach its member states to explore a request to the United Nations General Assembly to grant it Observer Status. In seeking Observer Status, IUCN reflected the interests of its members to work more fully within the United Nations system for sustainable development, as expressed in a Resolution of the World Conservation Congress adopted in Montreal in 1996. (334) Confirmation of IUCN as a unique international and intergovernmental organization occurred in 2000 when the United Nations General Assembly invited IUCN to become an Observer (335) and in 2001 when IUCN's Director General, Maritta KochWeser, opened IUCN's resident Observer Mission in New York at the U.N. headquarters. (336) As IUCN's Statutes provide, IUCN has legal personality and "may perform any act in conformity with its objectives ... to influence, encourage and assist societies throughout the world to conserve the integrity and diversity of nature and to ensure that any use of natural resources is equitable and ecologically sustainable." (337)

VIII. AN EVOLVING RECONCILIATION BETWEEN HUMANS AND NATURE

IUCN's evolution from a small organization in 1948 to a global union in 2005 mirrors a growing social concern for the health of humans and nature within the biosphere. The recognition that nations now accord to IUCN's status reflects their commitment to foster improvements in environmental conditions. States recognize that environmental protection is one of the three pillars of sustainable development, equal to the economic and social pillars. (338) Through such declarations and the establishment of environmental laws, the process of responding affirmatively to combat environmental degradation can be discerned. As Rene Dubos observed,

   The ecological image of human life that is now emerging is in part a
   consequence of concern for environmental degradation.... Starting
   from natural conditions, human societies have created cultural
   environments that in turn have influenced the course of their social
   evolution--a process of feedback characteristic of all ecological
   systems. (339)

IUCN has grown enormously since 1948, as has the field of environmental law since it emerged after the U.N. Stockholm Conference on the Human Environment in 1972. IUCN's founding members have regularly expanded its programs and called upon it to do more. IUCN has moved its focus from the protection of nature to equitable and ecological sustainability in the use of natural resources. At the same time, it has become fully international in the geographic representation of its governing Council and in the worldwide operations of its commissions and Secretariat. The expansion of IUCN's operations since 1948 has taken place during a period when "the scope and content" of international law itself has rap