Form Meets Function: The Culture of Formalism and International Environmental Regimes

Abstract

This article presents a critical appraisal of central developments in international environmental law, a field in which the phenomena of managerialism and deformalisation developed in the work of Martti Koskenniemi are clearly evident. Early attempts to bring international law to bear on transboundary, and later global, environmental degradation employed formal approaches to law, which were soon eclipsed by the development of purpose-built administrative regimes in which scientific and other forms of expertise came to predominate, leading to a clear threat of colonisation of law by science, economics, and politics in particular. I bring to bear on these phenomena the work of Gunther Teubner, who, like Koskenniemi, is concerned with these threats of colonisation. While their points of departure and analyses differ, I argue that bringing their approaches into conversation with one another provides important insight into the continued relevance of law as an autonomous social system to highly technical domains such as environmental protection.

Keywords: International environmental law; culture of formalism; systems theory; constitutional mindset; science and law