Dancing with the Transposition of the Public Trust Approach in the Realm of Conventional Environmental Governance

Theme I

I have a lot of sympathy with the view that expert knowledge is particularly difficult to transfer. As Rolf Dobelli perceptively remarks “insights do not pass well from one field to another” and he calls this effect “domain dependence”[1]. This seems to be particularly true with regard to legal approaches and insights in the multidisciplinary world of international environmental governance. In this context, technical and economic knowledge have, predictably and inescapably, the upper hand in the pursuance of a holistic, interdisciplinary management of the highly complex and continually evolving issues related to the protection of the environment and its sustainability. Here, legal approaches and insights, although fundamental and potentially crucial for better and more participatory governance, are rarely considered. And when tackled, they are handled with the utmost care and from a very narrow angle. This has something to do with the fact that, during the negotiations taking place at the various institutional levels of international agreements establishing environmental regimes, the accredited delegations rarely include scholarly legal experts or specialized international lawyers. But there is another aspect to it, much more subtle and much more difficult to comprehend. It is, in fact, the way we generally conceive and interpret the relationship between international law and governance. Beyond the “domain-dependence” effect of Dobelli, it seems that there is a more covered, a more resistant “domain-hardening” effect featuring international legal thinking.

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