(10) Environmental Law

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Lecture 2: Dispute Settlement, Compliance & International Institutions

Natural Resources Defense Council - ENVIRONMENTAL LAWS & TREATIES

Environmental Law

IEL

Foundations of International Environmental Law

INTERNATIONAL INSTRUMENTS

Most international environmental regimes are centered on a legal instrument that defines their initial articulation and influences their future evolution. Some of these international instruments, for those uninitiated in international law, would seem as empty requirements. Some of the conventions for the protection of the seas from land-based pollution, for instance, urge states to cooperate and may prohibit some forms of pollution but are deprived of strict regulatory standards.

From the perspective of a domestic legal order, these instruments have no teeth. From an international perspective, however, even broad instruments that set the parameters of cooperation among states are vital because they further the goal of a minimum order. These instruments present, at least, an agreement of states to cooperate on a specific subject matter. For most international lawyers who participate in what sometimes seem tedious negotiations, this is a significant achievement.

As international environmental instruments have progressed from the 1970s, the command-and-control character of the instruments has increased. Treaties deprived of concrete obligations are supplemented by protocols that are quite specific.

The institutional framework generated by international conventions is responsible for the promulgation of a number of recommendations that may not have binding force but, nevertheless, are persuasive and create expectations of performance.

One could characterize many of the recently adopted instruments for the control of pollution as command-and-control instruments. The Ozone Protocols and the Kyoto Protocol are definitely such instruments that provide detailed standards for implementation. The same is true for the protocols that have exemplified the transboundary air pollution regime. The treaties for the control of marine pollution from land-based sources, as they have been amended in the 1990s, straddle the boundary between command-and control regulations and more unspecified agreements. The LC and the MARPOL treaties are definitely command-and-control, technology-forcing instruments. The LC is a prohibitory such instrument, whereas the MARPOL rests on a number of technological standards.

In terms of natural resource management, international instruments tend to be less specific because it would not make sense to establish taking standards, such as total allowable catches (TACs) for fisheries or other species, at the international level. The promulgation of TACs is generally conceived as a national or a regional problem. Different TACs may be necessary in different regions or states depending on the availability of a resource today, future prognosis, and the needs of countries involved.

Regional instruments for the protection of fisheries resources have not yet acquired a legitimacy that would pool together states in their implementation. Regional fisheries agreements and related regulations on catches are frequently flouted even by states that subscribe to a regional agreement. Most fisheries agreements could beef up their regulatory effectiveness if they did away with the right of states to veto regulations that they do not agree with. The command-and-control character of fisheries agreements is diminished by the number and extent of opt-out clauses.

The Convention on Biological Diversity (CBD) is a framework convention that relies on interstate cooperation for the protection of national biodiversity. The convention proposes new ways to look at biodiversity as it is related with biotechnology inventions and innovations. But the convention does not provide concrete standards for international transfers of germplasm or for the transfer of biotechnology. A number of issue-specific agreements have attempted to do so. These agreements basically are trade agreements that establish the parameters of trading among participants. The Treaty on Plant Genetic Resources for Food and Agriculture is such an agreement. So is the Biosafety Protocol and the CITES Convention. Furthermore, a number of regional/bilateral agreements exemplify the letter of the convention.

The flourishing of instruments that have attempted to clarify the Biodiversity Convention in conjunction with the TRIPs agreement and the WIPO instruments have transformed the biodiversity regime to more of a command-and-control regime. At this point, the nesting of the regime in many different international fora has created some confusion about the rules of the game proposed by the regime. The freshwater regime is centered on an international convention that is based on a number of procedural requirements of notification and the principle of equity that states are to apply when entering into regional freshwater agreements. Because the principle of equity does not provide specific standards, states are – more or less – left to their own devices in configuring the regional agreements for allocation of freshwater resources. Such agreements have acquired varying degrees of specificity and control.

Most of these agreements have established RBOs the purpose of which is to interpret a regional freshwater treaty progressively. The idea behind RBOs is that regional agreements would need fine-tuning; RBOs are to undertake such fine-tuning, thus sparing states the hassle of negotiating new agreements. Regional freshwater agreements are usually quite specific with regard to the amount of water allocated to each state and what would happen in situations of water scarcity. Sometimes, however, the agreements present a political compromise to avoid the escalation of conflict in a region. In an attempt to diffuse conflicting situations, for instance, parties have promised to provide water to coriparians without specifying where the water is to come from.

The waste regime is a par excellence regulatory command-and-control regime in both national and international fora. The Basel Convention on the trade in hazardous wastes controls and waste transfers is based on a system of prior notification and consent. The liability protocol has completed the regulatory character of the regime. Whether the command-and-control approach through restrictions on waste trade is the way to curb the externalities of waste production has still to be proven. Another characteristic of the command-and-control regulation, in addition to its increasing stringency, is a phenomenon called differentiation.

Increasing the number and stringency of standards beyond the implementing capacity of concerned actors may lower overall performance. This is because whether a standard would be complied with depends on the capacities of those who are to implement the standard. For instance, a new stringent standard has more chances to be implemented by a new, state-of-the-art facility than by an older facility. Therefore, it may be more desirable to adopt non uniform standards – higher standards for new facilities and less stringent standards for old facilities. In international law, differentiation means that often standards must be tailored to meet the capacity level and needs of developing countries.

This notion of differentiating standards is encountered in some of the most recent international environmental instruments. For instance, the Kyoto Protocol and the Montreal Protocol differentiate between developed countries, developing countries, and even least-developed countries. Also, many soft law instruments refer to the concept of common but differentiated responsibilities among states with regard to the abatement of pollution. The UN Framework Convention on Watercourses mentions that the needs of countries should be taken into account in shaping the notion of equitable allocation of resources. Some fisheries agreements make room for the needs of the least–developed countries in a region.

The differentiation made explicit in many international agreements is recognition of the reality that not all countries are the same; thus, they cannot be similarly bound. After differentiation is introduced, the question is how to establish mechanisms to control differentiation so that countries that are entitled to differentiating standards do not take advantage of such standards to be permanently exempted from international regimes. Mechanisms to control differentiation are becoming quite developed in regional fora, especially fora that present more or less a federal state structure (e.g., the European Union). In international law, mechanisms to control differentiation are weaker because of the nature of international law as an incentive-based instrument. However, the control of differentiation is not totally absent as some of the recent compliance proceedings have demonstrated.

A side effect of increasing regulation is the creation of illegal markets. International illegal markets exist today for products coming from endangered species, ozone-depleting substances, and hazardous and radioactive wastes. The illicit trade in endangered species is estimated to be quite significant. The black markets for ozone-depleting substances are expected to grow as some developing countries are acquiring the capacity to produce such substances. The illegal transfers of hazardous and radioactive wastes are well documented. Some commentators have challenged the effectiveness of the CITES and the Basel regimes because of the illegal markets they have generated. The effectiveness of the ozone regime has come under doubt for the same reasons. Commentators suspect that a number of banned substances may be entering the seas through illegal dumping by ships or from land based sources.

Because regulation can be costly, market-based instruments have been proposed to address international environmental problems. Market-based instruments have worked well in some domestic systems, but their administrative complexity may thwart their application at the international level. The implementation of market based instruments in the climate change regime should be followed closely so as to extract lessons for the future of market-based instruments in international law.

International regimes can be classified from 1) the perspective of the level of enclosure strived for or achieved and 2) perceptions of accomplishment of distributive equity that may be correlated with regime effectiveness. The classification of regimes based on whether they have generated perceptions of fair allocation of resources or of the allocation of externalities associated with the use of resources. Fair allocation of resources or of externalities is frequently associated with effective management. Classification of regimes can be based on whether they have been enclosed effectively or on whether are still perceived as open access resources.

The enclosure pursued by the fisheries regime has been perceived as inequitable from the perspective of states that are left outside regional fisheries arrangements or from the perspective of insiders whose fishing efforts would be restricted. Attempts to enclose global fisheries have been intense but such enclosure has yet to be completed due to the strong resistance of states left outside.

The enclosure of “raw genetic material” has been conceived as a tit-for-tat enclosure geared to compensate for the enclosure of “worked genetic material.” Various intellectual property rights devices have been used by pharmaceutical companies and biotechnology companies for the enclosure of “worked genetic resources.” Both enclosures of plant genetic resources and related knowledge (PGR) are pursued in a rigorous manner by the states involved. Both enclosures have been perceived by states that have not been included in them as inequitable.

The enclosure of freshwater resources, in terms of effective regulation and allocation of what otherwise could become open-access resources, has not been pursued with the same vigor in all regions. Whenever this has been accomplished, the enclosure has been perceived as equitable depending on how inclusive it has been designed to be. The monopolistic enclosure of resources by a hegemonic power has been conceived rarely as equitable.

The results of the enclosure of the air are still in the making. One could claim that the ozone regime and the climate change regime could be effective. This is because the attempts to enclose the resource are inclusive. Developing countries have been promised compensation for their participation in the ozone and climate change regimes. If the compensation is deemed sufficient, the regimes could be considered equitable and, thus, could become effective in managing air quality. If the compensation is considered insufficient, the enclosure is unlikely to be finalized and the regimes could malfunction.

The enclosure achieved by the Transboundary Air Pollution Regime (TAP) has enjoyed a high level of legitimacy. This is because the countries that participate in the regime exhibit more or less similar levels of development.

The enclosure of the seas has been less eventful in terms of distributive conflicts. This is because controlling pollution inputs in the seas has yet to materialize in an effective fashion. States still treat the seas in terms of polluting inputs as an open access resource.

The international enclosure of national biodiversity resources is still in the works. Countries have principally resisted the international enclosure of their national biodiversity resources and have perceived such an enclosure as inequitable. The enclosure of wastes has been motivated by concerns of equity. Some developed and developing states have assumed that it is equitable for each state to become self-sufficient in the management of its wastes. Otherwise, wastes could become an open-access negative resource. Although perceptions of equity of the regime are high, in certain circles the regime has been challenged by countries that still wish to import wastes to keep their industries afloat or to strengthen their recycling sector. Some countries view the notion of equity as self-efficiency as antithetical to corrective notions of equity and the articulation of cooperation among states.

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