International Environmental Law Section C: Particular subjects of International Environmental Law
Environmental Law and Conventions - UNEP
SETTLEMENT OF DISPUTES
It is not uncommon for disagreements among states to escalate into international disputes and methods have been developed by the international community to resolve or, at least, to contain such disputes. Such efforts include conciliation, good offices and mediation, arbitration, and adjudication.
One of the first means used for the settlement of disputes is conciliation. A formal conciliation procedure involves the establishment of a Conciliation Commission. The Vienna Convention on the Law of Treaties, the Law of the Sea Convention and a number of environmental agreements provide explicitly for a conciliation commission in case a disagreement develops among state parties to these conventions.
Good Offices and Mediation
Good offices and mediation involve further efforts to contain disputes that have span out of the control of disputants. A country or an international organization may offer their good offices or offer to mediate in a dispute. The difference between good offices and mediation is not very clear. In principle, a “good offices” proposition assumes a nonnegotiating role for the party that offers good offices. In mediation, the intervening party takes part in the negotiations.
One way for a mediator to resolve an issue is by altering parties’ perception of differences facing them. A mediator may break down contested issues into smaller sub issues that are more easily resolved. Or a mediator may combine seemingly unrelated issues so that a compromise can be struck. As a rule, negotiating mechanisms that are flexible and relatively informal are preferable for seeking resolution of difficult disputes. Negotiation and mediation can be more effectively carried out in private rather than in public meetings. This does not mean, however, that “parliamentary diplomacy” and public statements cannot be used to help bring resolution.
Arbitration, in contrast to conciliation and mediation, leads to a binding settlement. The arbitral body is composed of judges who are normally appointed by the parties but who are not subject to their instructions. The arbitral body may be established ad hoc or it may be a continuing body set up to handle certain categories of disputes. Arbitration differs from judicial settlement in that the parties have competence, as a rule, to appoint arbitrators, to determine the procedure to be applied and to indicate the applicable law, to some extent. The Permanent Court of Arbitration deals with many types of arbitration proceedings.
An undertaking to arbitrate an issue usually does not resolve all detailed questions that must be settled before arbitration takes place. It may specify the manner in which the arbitrators are to be selected. Usually, each party is to select an arbitrator and a third arbitrator is appointed by an agreement of the parties. Other detailed questions are usually answered in an agreement between the parties called compromis d’arbitrage.
International law does not lay down specific rules concerning the weight of evidence in arbitration proceedings. Admissibility of evidence and the weight to be attached to it are largely left to the arbitral tribunal. For the most part, the rules followed by arbitration tribunals are more flexible than those applied generally by domestic courts.
States can sabotage arbitral proceedings by refusing to appoint an arbitrator. And it is not unusual for a country to try to avoid arbitration by frustrating the arbitration proceedings. Treaties include often clauses, therefore, about the procedure to be followed to appoint an arbitrator when a party refuses to enter into arbitration proceedings or has failed to appoint an arbitrator.
States are generally reluctant to use the ICJ for the resolution of their disputes. The reasons behind this reluctance have to do with the time-consuming and uncertain character of litigation. Governments resent losing control over a case that may not be resolved to their satisfaction and being bound by an outcome that they do not favor.
International law is perceived as too intertwined with politics to make room for real judicial decisions. Legal issues are viewed as but an element of the political reality with trade-offs to be made that do not have much to do with legal regulations.
MONITORING AND ENFORCEMENT
Monitoring is the prerequisite of enforcement. Some international agreements are well monitored. For instance, states often carefully monitor treaties for the control of weapons, whereas states do not devote many resources to the monitoring of environmental treaties. Because of innovative technologies, however, that allow to pinpoint the location of ships or developments in DNA technology that allow for the identification of endangered species, it is generally presumed that environmental agreements are better monitored today than in the past.
If monitoring proves that a state has violated the law and the elected dispute resolution mechanisms do not resolve the issue to the satisfaction of the offended parties, one would expect that enforcement would follow. This is not the case, however, in many international treaties. Unless a vital state interest is at stake, states generally exhibit a remarkable amount of tolerance to treaty violation.
The Vienna Convention does not give much guidance regarding treaty violation. Article 60(1) provides that: “A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty
or suspending its operation in whole or in part.” This provision is not particularly helpful with regard to environmental treaties. If two states have signed a treaty under which they undertook the obligation to prevent waste dumping in the sea, the breach of the treaty by one of the parties – by engaging in dumping – would mean that the other party could suspend the treaty. But the suspension of the treaty would not be of any help to the nonviolating party if that party wishes to implement the treaty.
The same problematic applies to multilateral treaties, for instance, treaties that oblige parties to cut or stabilize their polluting emissions. If a state party violates such a treaty by increasing its emissions and another party retaliates by increasing its own emissions, that retaliating action would not only be harmful to the retaliating state but also unfair to the other parties to the convention. In that case, the violating party would have achieved the demise of the international regime that other states are striving to establish.
In general, states have used an array of measures to ensure compliance by other states. Frequently, countries retaliate against a state that violated a treaty by breaching another treaty. A whole range of self-help measures – short of the threat of use of force or the actual use of force against the political independence or territorial integrity of a state – have been considered legitimate. Following the alleged breach of a particular treaty or another international obligation, diplomatic relations are ruptured, foreign assets are frozen, seized, or attached, shipments of surplus food and other forms of foreign aid are discontinued, internal subversion is tacitly encouraged, and trade sanctions are initiated. Resort to war is allowed also in cases of self-defense in order to counter an armed attack. It has been claimed even that an armed attack does not have to be present in order for a country to engage in self-defense. It just has to be imminent. Some governments have evoked the right to preemptive or anticipatory self-defense. These retaliation measures are often called self-help measures or countermeasures.
The enforcement of environmental treaties has rarely involved retaliatory measures such as those described here. However, this does not mean that all international environmental treaties are deprived of enforcement mechanisms. Certain environmental treaties, for example, the Montreal Protocol for the Protection of the Ozone Layer, authorize trade sanctions against not only parties that have not implemented the treaty provisions but also against nonparties, thereby extending the jurisdictional reach of the convention to states that are not formally bound by it.
The United States has used actively trade sanctions to force the extraterritorial application of its environmental legislation. The Tuna-Dolphin and Shrimp-Turtle cases have caused a lot of acrimony in GATT/WTO fora. As a rule, however, countries have applied more carrots rather than sticks to ensure the implementation of environmental legislation. Generally, distribution issues, with regard to allocation of water, fisheries resources, and biodiversity, have generated the most disputes. Pollution matters, as long as they are not clearly defined as allocation matters, have generated less acrimony. Depending on the configuration of power in a region might or have been used more or less convincingly for the management of environmental disputes.
Foundations of International Environmental Law
FUNCTIONS OF LAW
Status Quo and Change
Institutions provide the rules of the game in a society. These are the rules concocted by humans to assist them in their cohabitation. Law is an institution. One of the goals of law is to establish rules that would increase the predictability and certainty of outcomes and, thus, facilitate transactions in a society. As an economist would put it, the purpose of law is to reduce the transaction costs of cooperation among individuals or other legal entities, such as corporations and states. Transaction costs include the costs of defining and enforcing property rights and the costs of remedying the information asymmetries among parties about to enter a transaction. A vast amount of society’s resources is devoted to monitoring and enforcing behavior to ensure conformity with the rules of law.
The purpose of international law is to facilitate state interaction by introducing order where, otherwise, would be disorder, anarchy, and war. The primary goal of the United Nations is to safeguard peace, a precondition for cooperative outcomes. Various international organizations and treaties have been adopted with the purpose of coordinating state interaction by standardizing expected behavior.
The pursuit of order and stability perpetuates a view of a law as an institution of the status quo. To give an example, the principle of stare decisis is explicitly endorsed in Anglo-Saxon systems but also is implicitly adhered to in civil law systems. The principle of stare decisis perpetuates a perception of law as an institution that is unreceptive to social change. But the content of law has changed through the years. The question then is how law, an institution that serves the status quo, can accommodate social change.
Change in law like in any other institution can be abrupt. This is, for instance, in case of a revolution when established norms seem to be subverted overnight. In most cases, however, change in law, as in most institutions, is so gradual as to be imperceptible to people/states that experience it. Change in law may happen when a constituency of interests is able to propose counter norms to already established norms. These counter norms are initially only part of the rhetoric of certain groups. If they reach a disaffected audience, however, they may become ingrained in the mainstream and subvert established norms. It may take decades or even centuries but, when circumstances are ripe (e.g., in terms of economic/technological developments or emerging new entrants), the established norms would be challenged and could be replaced by new norms. The emancipation of women and the termination of slavery are relatively newly established norms pushed forward by industrialization and the demise of traditional agricultural society. Ideas regarding the injustices done to women and the fundamental unfairness of slavery were floating around, however, for centuries. Eventually, circumstances became ripe for these ideas to take hold. Colonization similarly lost the moral ground that it claimed in the nineteenth century, and the wars of decolonization brought new states in the international arena.
Formal and Informal Rules
Even as formal rules change, informal rules could remain the same. Such rules usually are unwritten. They are the codes of conduct in a society. They are customary rules that are passed from one generation to the next and are quite resistant to change. Some of these informal rules could be in direct conflict with existing rules or could violate the spirit of change brought by the new rules. Thus, the real world often involves a mixture of newly established rules and old codes of conduct. It would be misguiding for a scholar to focus on the formal rules and to neglect the informal rules of conduct. Such a focus is likely to produce a distorted picture of reality. Michael Reisman puts this eloquently when he says that one must verify words against practice before pretending to understand the norms according to which social groups, including the international society, operate.
Power is not an overt prescription in most formal rules of international law. But it definitely shapes the rules of the game as iterated among various states.
Informal rules are important in the configuration of rules of the game in the international society. The international system has been described as an anarchical system in which no central authority can take decisive action that would subjugate the will of many and disparate actors. Some commentators have argued that international law is a fiction that mirrors rather than constrains state behavior. A view of international law as a system shaped as much by power as by formal rules of conduct is also echoed by international lawyers. Anarchy and coercion, however, could be costly even for powerful states that view stability and predictability as advantageous in terms of cost reduction in their everyday interaction with other states. Therefore, as Louis Henkin has observed, in what has become a classic line in international circles, “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”
The result is a decentralized legal system with many formal rules but also many informal rules and various patterns of consistent or inconsistent state practice. Because the international legal system is so diffuse, the notion of a “system” seems like a future ambition. Some commentators prefer to use, therefore, the notion of “international regime.”
International regimes have been described as the convergence of expectations, patterns of behavior, and practice.13 Regimes have been defined as international arrangements characterized by implicit and explicit principles, norms, rules, and decision-making processes around which the expectations of different actors converge.
The regimes examined in this study include:
• The Marine Pollution regime as articulated in the Law of the Sea Convention (UNCLOS), the Convention on pollution from ships (MARPOL Convention), the London Dumping Convention, and various regional instruments;
• The Shared Watercourses regime that is centered on the 1997 UN Watercourses Convention and further exemplified in various regional instruments;
• The Fisheries Resources regime that is the focus of a number of instruments such as the UNCLOS and the 1995 Fisheries Agreement. A number of instruments have attempted to apply the regime in regional fora;
• The Plant Genetic Resources (PGR) regime that centers around the Convention on Biological Diversity and has to do with the protection of and property rights over “raw” germplasm resources and intellectual property rights over “worked” germplasm resources, as they may be articulated in biotechnology inventions or pharmaceutical inventions;
• The regime for the protection of the ozone layer that is articulated in a framework convention and a number of protocols, the regime for the reduction of greenhouse gases that are responsible for climate change, and the regime for transboundary air pollution that deals with pollutants that could have transboundary effects as they are emitted by certain states but end up in the environment of other states; and
• The waste regime as it has come into focus in the international arena through the trade (legal or illegal) of hazardous and radioactive wastes and, specifically, the unsound transfer and disposal of hazardous wastes in countries of the developing world.
Some regimes have been characterized as issue-focused, such as the regime for the protection of the ozone layer. The ozone regime is comprised of a convention and a number of protocols and has imposed specific regulations for the phasing out of ozone depleting substances. Issue-focused regimes include also the transboundary air pollution regime. The climate change regime seems at this point issue-focused.
However, as the regime may expand to implement the clean development mechanism, joint implementation or tradable allowances, it may increase in complexity.
The waste regime is also issue-focused as it is centered basically on the Basel Convention and a limited number of regional instruments that have simply banned waste imports into particular regions.
Other regimes have been characterized as complex as they have attracted attention in various international fora that have infused these regimes with different normative directions. The Plant Genetic Resources regime developed under the Biodiversity Convention (CBD) has been characterized as such a regime. The regime is comprised of a number of soft norms and hard rules dispersed in a number of international fora, such as the WIPO, the WTO, the CBD, the FAO, the IARCs, and UN Human Rights bodies. Some authors have characterized these regimes as conglomerate regimes or regime complexes. Such regimes emerge as actors dissatisfied with outcomes on an international issue in a particular forum engage in “regime shifting” or “regime shopping.” Frequently, actors disaffected with the evolution of an international regime in a particular forum attempt to establish regime counter norms in another forum, hoping that such counter norms would take root and lead to regime change.
Some regimes straddle the borders between issue-focused and complexity. The marine pollution regime and the fisheries regime are organized around a couple of international instruments (namely, the UNCLOS, the LC, the MARPOL, and the 1995 Straddling Fisheries Agreement) but then are expounded in a number of regional instruments the purpose of which is to make these agreements implementable on the ground. Various legal bodies have created, therefore, soft norms not always synchronized with each other. Not the same hazardous substances, for instance, are controlled by regional instruments regulating sea pollution. Some hazardous substances may coincide among regimes and others may differ. This makes the coordination among interrelated regimes occasionally complex as countries; for example, have to report on different substances under different regimes and to conform to different technological requirements.
The freshwater management regime is also quite complex as a quite broad international convention has been interpreted in different regions in ways that conform more with the regional balance of power rather than with consistent perceptions of equity. Many multilateral and bilateral agreements had been adopted before the convention that does not conform exactly with the spirit of the convention. The situation is so fluid that some commentators have challenged the normative value of the UN Watercourses Convention.
Within the biodiversity regime, the Plant Genetic Resources sub regime is quite complex, as explained earlier. Given the regional dimension of biodiversity, many regional conventions have been adopted that add substance and texture to the Biodiversity Convention. Species-specific and habitat-specific treaties also abound. Understanding and coordinating the interrelationship among all these instruments (that also claim overlapping jurisdictional boundaries) and a large number of soft norms that have been enacted is a complex task even for the expert.
Overall, regimes that deal with pollution tend to be more issue-focused, whereas regimes that deal primarily with allocation issues tend to be more complex. Regimes that deal primarily with the allocation of natural resources present by definition distribution issues that tend to be the most contentious in any society. It is not surprising then that actors engage in forum shopping in an attempt to find distributive solutions that better fit their needs. All international environmental regimes are to some degree distributional regimes. In some regimes, the distributional conflict and ensuing complexity with regard to the allocation of a resource is much more pronounced.
Complexity, Redundancy, and Networks
Complexity in international regimes is sometimes seen as redundancy. Often, international lawyers lament the coexistence of regimes dealing with essentially the same matter, the multiplicity of institutions concerned with similar issues, and the number of soft norms and hard norms that have to be put together painstakingly to understand complex international regimes. This multiplicity in international law is often viewed as an undesirable redundancy and many international scholars have recommended the simplification and the streamlining of the international system.
Redundancy may not be an undesirable phenomenon, however. Scholars that have studied public law systems have commented on the beneficial effects of redundant or what otherwise could be called parallel systems. It has been mentioned that parallel systems are essential in administrative structures in order to reduce serious errors, to induce healthy bureaucratic rivalry, and to implement risk management. If all elements of an administrative structure hinge on a central mechanism, the collapse of that mechanism would induce the collapse of the depending administrative structure. But when multiple, parallel, and overlapping systems are at work that are not dependent on each other, the collapse of one system would not necessarily induce the demise of all systems. The importance of decentralized systems is made explicit by today’s information technology, such as the Internet, that functions based on a system of organized, independent, and also overlapping networks. The collapse of one of these networks is unlikely to cause the collapse of the whole system.
Commentators have noted the importance of building parallel bureaucracies that would act as a check on each other or that could, at least, take over if one of them becomes disfunctional. The importance of parallel systems is underlined also for developing countries’ administrative systems where corruption is often prevalent. Because in developing countries building accountability is more important than the pursuit of efficiency, corruption is prevented by pitting parallel, yet overlapping, bureaucracies against each other.
The international system could be conceived as a system of parallel and yet overlapping networks. This overlapping structure has been actually the trademark of international law, despite repeated calls to reform such law after the model of centralized domestic administrative structures. The decentralized and overlapping nature of international environmental instruments and institutions is generally not viewed as efficient as resources are spent on multiple organizations dealing with more or less the same subject matter.
Decentralization coupled with overlap has been important, however, for the maintenance of minimum public order as issues, which cannot be resolved in a forum, could be shopped to another forum until the disaffected parties are satisfied. Decentralization and overlapping have played an important role in the maintenance of peace in the international system. The PGR regime is a clear example of how what could be conceived as a redundant system has helped in the diffusion of tension. States dissatisfied with the Whaling Convention have transferred their concerns to other fora, therefore averting a possible crisis. The number of organizations, treaties, and networks that deal with biodiversity ensure that if an issue is neglected in one forum it may find successful resolution in another forum. The FAO deals with issues of agro biodiversity. This has forced the COP of the CBD to deal more decisively with issues of resource ownership and control. One could conclude, therefore, that institutional redundancy may not always be undesirable in international law and that some redundancy built into the international system may have some beneficial effects.