Reciprocity and International Environmental Law

This chapter examines the different roles that reciprocity plays in international environmental law. In doing so, it identifies four primary forms of reciprocity in multilateral environmental governance: formal, stochastic, substantive and structural. Through these lenses, the chapter will reveal that reciprocity has a much more prominent role in international environmental law than commonly thought, and can in fact be seen in many of its cornerstone principles. Indeed, reciprocity can be found at the heart of this area of law in the form of the duty to prevent transboundary harm. It is also evident in the duty to co-operate in various environmental regimes, and it is playing a particular role with the emergence of transparency and accountability influencing the commitments states make and how they comply with them. In a less obvious way, reciprocity can be said to underpin the increasingly important principle of common but differentiated responsibilities by bringing equity to environmental obligations and, in turn, extending participation in environmental governance processes in a way that would not otherwise be possible. Finally, other areas of international law are being transformed by reciprocity as they encounter matters of environmental protection. In particular, the area of investor-state dispute settlement has witnessed states embracing reciprocity by negotiating new treaties that seek to extend environmental obligations to corporations and availing of procedural tools like counterclaims in dispute settlement processes to hold private corporations accountable for environmental damage they cause. Overall, this chapter provides the insight that reciprocity serves as a driving force that has shaped and continues to shape legal norms intended to protect the environment. That said, the chapter concludes it is not possible to characterize it as a meta-legal rule or principle because of the inconsistent and piecemeal way it operates.