International Environmental Law

International Environmental Law

Specificities of International Environmental Law

International environmental law has specific features that distinguish it from other branches of public international law.  The specificities of international environmental law stem from the way it is generated to the way it is implemented and enforced. The sources of the law are influenced by myriad challenges including the competing state interests, the divide between the developed and developing nations, the interrelationships between environmental protection and economic development, the complexity of environmental problems, and the active role played by non-state actors. Another key challenge that has greatly influenced how environmental norms are generated is the need to cope with scientific and technological development. As a result of these challenges, the legal responses and the enforcement mechanism developed to address environmental degradation has been specific- mostly resulting in treaties, declarations, and resolution. To some extent, such legal responses deviate from the hard law approach that is common with public international law. There are different reasons for this deviation, but in summary, environmental challenges are inherently sui generis in nature thereby warranting for inherently sui generis responses. In order to expound on these reasons, this essay will look at the specificities of international environmental law both in terms of the sources and in terms of enforcement. The essay starts with the sources and then progresses into how the generated environmental law is enforced.

The sources of international environmental law

Traditionally, as Article 38 of the ICJ posits, the main sources of international law have been international conventions, international custom, general principles of law, judicial decisions, and with some limits juristic writings of highly qualified people. Presently, however, there has evolved a range of new law-making processes that are generally grouped as soft laws. International environmental law is one of the branches of law that is readily accepting the new international law-making practices while still borrowing from traditional sources. The reason for this will be discussed in a short while. In that sense, treaties and international agreements have emerged as the major sources of international environmental law. This, however, does not mean that international customs do not form part of the environmental law; they do but in a very limited sense.

Since the adoption of the Stockholm Declaration of 1972, treaties and other forms of international agreements have emerged as the most preferred source of international environmental law. One of the reasons is the novelty of environmental problems that renders prior customary norms inadequate. Environmental problems are not static, they evolve over time. For instance, environmental problems have evolved from single environmental problems such as point source pollution control to multiple, bigger, and more complex environmental and resource management problems. More important to note is that the framing of the problem and policy responses is now shifting toward sustainability where environment and development are linked to the ecological, social, and economic agenda. In this context, it is natural that treaties would be more suited to address the emerging problems rather than the international customs which are normally static. This assertion makes sense bearing in mind that treaties can be amended to suit the emerging environmental problem. More importantly, environmental concerns are relatively new phenomena; they cannot be compared, say, to the customary law governing maritime trade and war, which have crystallised over centuries.

Second, environmental problems are transboundary in nature – environmental problems and economic activities extend beyond state borders. The atmosphere, for instance, the wildlife and the waterways resources for that matter do not adhere to political state boundaries. In that case, their regulation “has a significant institutional and procedural dimension, which can be better addressed through treaty law." The third reason for the prevalence of treaties is the global unbalance and conflicts normally characterised by the North versus South discourse. This is to mean that the interest of developed nations and developing nations as far as environmental protection is concerned do not normally converge. It is therefore difficult to have a universal law that caters to these differences. The North and South nations are at different faces of development and given that economic development is a key factor in environmental pollution, the developing nations cannot easily accept regulations that will hamper their economic development. To accommodate these differing interests, treaties arise as the best option since they have room for differentiation in the state's obligation. For instance, the Kyoto Protocol is framed on differentiated greenhouse gas emissions.

In addition to the above reasons, it is also true that treaties are important mediums for communicating a pre-existing shared understanding. Indeed, treaties help in crystallising and specifying these understandings. In the context of environmental law-making, there are many players –state and non-state actors. All these actors have a pre-existing understanding, with significant common grounds. That common ground becomes an important starting point in a topic that is inherently controversial. This yields fruits especially in an environment where non-state actors such as NGOs are given room to contribute to the framing of a treaty. Though the states are the formal lawmakers, in treaty adoption, the influence of NGOs and other environmental experts cannot be ignored. 

The Rise of Soft Law

The other specificity associated with environmental law is the increasing rise of soft law in the environmental regime. Soft law includes declarations, resolutions, recommendations, and guiding documents that are not legally binding and are discretionary in nature. Examples of these include The 1982 World Charter for Nature, the Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-based Activities 1985, and the 1992 Rio Declaration on Environment and Development. Unlike soft laws, treaties are binding so long as they have been formed in accordance with the Vienna Convention on the Law of Treaties and so far as the state is a party to the treaty and has ratified it.  Again, like with the treaties, there are reasons that have driven the rise of soft law in the environmental regime. Just like treaties, soft law is equally a response to the sui generis challenges posed by environmental degradation. It has developed rapidly for the last three decades. The most outstanding example is the Agenda 21 plan of action adopted at the 1992 Rio Earth Summit.

There are several reasons leading to the proliferation of the soft law. First, soft laws are easily acceptable by interested parties in a given environmental issue. Since soft laws do not spell penalties and remedies for noncompliance, they offer a concrete ground for building consensus on a given environmental issue. In this case, the participant approaches discussion and negotiations with not much to fear. Secondly, soft law over a broader room for participation by non-state actors such as non-governmental organisations and the business organisation compared to treaty negotiations. This heightens acceptability and preference. Martella and Groko have also added that soft law influence “domestic decision makers ... who are faced with new or emerging environmental challenges at the domestic level that can directly affect practitioners.

Dupuy adds more reasons for the rapid growth of soft environmental law. According to Dupuy, the growth can be attributed to the existence and development of a network of permanent institutions at the international and regional levels. In this, Dupuy gives the example of the UN, particularly the UNEP which develops the framework for normative negotiations among member states. Another reason attributed to this growth is the diversification of the global community which basically means the arrival of developing nations at the international law-making table. Soft laws are accommodative of the new entrants. Last, but not least, is the growth of the international economy and the increased global interdependence coupled with the advancement in science and technology. These new transformations call for new approaches in international lawmaking.

That said and done, a question would arise about the effectiveness of the new set of laws in environmental protection. The fact that soft law is nonbinding does not mean that it is irrelevant nor does it mean that hard international law is more important compared to soft law. Soft law has its own benefits. As Ahmed and Mustofa argue, "soft law can reduce contracting costs and threat to sovereignty, while still providing a number of benefits." Such benefits include the low contracting cost while at the same time being the basis for the generation of hard law. The Stockholm Declaration and the Rio Declaration for instance initially had the status of soft law but have since evolved to be the basis and the face of international environmental law. But comparing the main sources of international environmental law – treaties and the soft law – soft law emerge as the effective alternative. In a nutshell, treaties are generally shallow, take longer to negotiate, are limited by ratification, and lack effective enforcement mechanisms. Such drawbacks necessitate the need for alternative responses to global environmental challenges. As such, soft law derives its advantage from its own nature – nonbinding and discretionary. The non-binding nature means that they can take more members on board leading to more development of the international environmental law. Once there is consensus on the soft law, the law can easily evolve into a more acceptable hard law, like a treaty.  Their flexibility also encourages quicker responses to emerging environmental issues. In summary, the soft law approach to environmental law promotes the spirit of cooperation that is vital in international law-making. But this approach has also some weaknesses that will appear in the next topic on enforcement.

Enforcement

Due to the sui generis nature of the environmental law, the traditional enforcement mechanism of penalties or remedies for noncompliance is ill-suited to address cases of noncompliance. As Dupuy and Vinuales point out, the characterisation of given conduct as a breach of a legal norm common with the traditional mechanism used for the implementation of international law and the determination of the ensuing legal consequences are not the best approaches to address “cases of non-compliance resulting from the inability (financial or technical) of a State to abide by a norm”. As such, environmental law deviates from the adversarial approach common with other international laws and instead creates a host of techniques to facilitate and manage compliance. These techniques can be summed as incentive mechanisms, managing scientific uncertainty, and management of non-compliance.

The incentive mechanism operates by creating incentives for environmental protection rather than compelling compensation or penalties for environmental degradation. In addition, the soft law of environmental protection seeks to offer assistance to developing countries in order to achieve sustainable development. For instance, the Kyoto Protocol introduced incentives for early action on climate change through a formula described as credit and banking. Countries that took early action to reduce gas emissions receive credit for their actions. The protocol sets targets for each country. The UK for instance has an agreed target of 12.5% by 2012, 80% by 2050, and an interim target of 34% by 2020.

The other issue affecting the implementation of environmental laws is scientific uncertainties. As science develops, new knowledge – on the causes of environmental degradation and the best way to protect it – emerges. As a result, the environmental regime has to remain flexible in order to incorporate- emerging scientific know-how. For instance, the Montreal Protocol contrasted with the current known causes of stratospheric ozone depletion. This uncertainty affects the measures put to enforce the law.  It is therefore not lost that in the context of these uncertainties, international environmental law is based on the concept of facilitating and managing compliance rather than punishing noncompliance.

The other unique aspect of the environmental regime is how it manages non-compliance. While the violation of international law is normally characterised as a breach – with specific penalties -, non-compliance in environmental regimes hardly fits into this characterisation. To the environmental regime, noncompliance is a deviation that should be contained and managed rather than punished. This is a unique enforcement principle. This explains why the environmental regime provides for non-compliance procedures (NCPs) to address failures by contracting parties to abide by their treaty obligations. The NCPs therefore can be found in the 1987 Montreal Protocol to the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic just to mention a few. As Fitzmaurice and Redgwell acknowledge that the “recourse to non-compliance procedures is evidence of a growing awareness that traditional rules of international law concerned with material breach of treaty obligations and with state responsibility are inappropriate – and, indeed, unable- fully to address problems of environmental treaty compliance." This is due to the non-reciprocal nature of environmental problems.

In conclusion, the inherently unique nature of environmental problems calls for inherently unique environmental regime. As a result, international environmental law slightly deviates from public international law though remaining one of its key subsets. The environmental regime – both in terms of its sources and implementation of the law – exhibits specificity that is not common with the other branches of international law. This specificity has seen treaties and other international agreements dominating international environmental law.

Bibliography

Books & Journals

Ahmed, A and J Mustofa, ‘Role of Soft Law in environmental protection: An overview’, (2016) 4 Global Journal of Politics and law Research 2, pp. 1-18

Bodansky, D et al, ‘The Oxford handbook of International Environmental Law’, (Oxford University Press, 2007)

Brunnee, J “Enforcement Mechanisms in International Law and International Environmental Law’, (2005) Environmental Law Network International Review, p 3-13

Churchil, R and G Ulfstein, “Autonomous Institutional Arrangement in Multilateral Environmental Agreements: A Little Noticed Phenomenon in International Law’, (2000) 94 AJIL p.623, at p. 644

Dupuy, P and J Vinuales, ‘International Environmental Law’, (Cambridge University Press, 2015)

Dupuy, P, ‘Soft Law and the International Law of the Environment’, (1991) 12 Michigan Journal of International Law 420, pp 420-435

Fisher, E et al, ‘Environmental Law: Texts, Cases & Materials’, (Oxford University Press

Fitzmaurice, M and C Redgwell, “Environmental non-compliance procedures and international law’, (2000) 31 Netherlands Yearbook of international Law pp. 35-65 at p.35

Martella, R and B Grosko, ‘International Environmental Law’, (American Bar Association, 2014)

Vihma, A “Chapter 7 Analysing Soft law and Hard law in climate Change’, (2013) 21 IUS Gentium 143, 146

Wettestad, J, ‘Soft Law, hard Law, and Effective Implementation of International Environmental Norms’, (2006) 6 Global Envtl. Politics 104, 106

Conventions

Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992

Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992

Kyoto Protocol, 1997

Long-Range Transboundary Air Pollution Treaty, 1979

Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-based Activities 1985

Rio Declaration on Environment and Development, 1992

Statutes of the International Court of Justice

Stockholm Declaration of 1972

United Nations Framework Convention on Climate Change, 1998

Vienna Convention on the Law of Treaties, 1966

World Charter for Nature, 1982