(14) International Environmental Law

UNEP

UNECE-Guidance on Implementation of the Protocol released in English and Russian

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2003 Kiev Protocol

The Aarhus Convention was supplemented in 2003 by the Kiev Protocol on Pollutant Release and Transfer Register. The objective of the protocol is to improve access to information through the establishment of coherent, nationwide pollutant release and transfer registers (PRTRs) in state parties to the protocol. The PRTRs are to be facility-specific with respect to reporting on point sources; could accommodate reporting on diffuse sources; are pollutant-or waste-specific as appropriate; and must distinguish among releases to air, land, and water. Furthermore, PRTRs are developed based on periodic mandatory reporting; must include standardized and timely data; and must be coherent, user-friendly, and publicly accessible (this includes electronic formats). PRTRs are supposed to be structured, computerized databases or several linked databases maintained by a competent authority.

The Kiev Protocol requires reporting on a wide range of activities and pollutants (eighty-six pollutants are covered under the protocol). Thus, although the Kiev Protocol does not regulate pollution per se, it is expected that, though a “name and shame” the polluter rationale, it would be able to exert pressure for the reduction of pollutants. Although the protocol has been adopted under the UN/ECE framework, it is open to all states for signature. By December 2003, thirty-six states had signed the protocol, including the European Community (EC).

Application of Right to Information

The issue of the content and amount of information that a state is required to provide under modern access to information requirements came under scrutiny in the OSPAR case examined by the Permanent Court of Arbitration. The facts of the case are as follows.

British Nuclear Fuels (BNFL), a company owned by the United Kingdom, operates a nuclear reprocessing plant in Sellafield. In 1993, BNFL applied to a local authority to build a Mixed Oxide Fuel (MOX) plant to reprocess fuel used in nuclear reactors. The license to build the plant was given in 1994 and the construction was completed in 1996. Ireland challenged the construction of the plant, claiming that the plant would pollute the Irish sea with radioactive waste and pointing out the dangers presented by the transfers of radioactive material (to be shipped in and out of the plant).

Before bringing the case to the Permanent Court of Arbitration, Ireland attempted to bring the case before the ITLOS with no success. Both the United Kingdom and Ireland are members of the European Union (EU) and, thus, the case potentially could be brought before the European Court of Justice. In addition, under article 37 of the Euratom Treaty – of which both the United Kingdom and Ireland are signatories – it is provided that members must provide the European Commission of the EU with their plans to dispose of radioactive waste and that the European Commission must deliver its opinion within six months. Based on this provision, the United Kingdom had submitted its MOX construction plans to the European Commission, which concluded that: the implementation of the plan for the disposal of radioactive wastes arising from the operation of the BNFL Sellafield mixed oxide fuel plant, both in normal operation and in the event of an accident of the type and magnitude considered in the general data, is not liable to result in radioactive contamination, significant from the point of view of health, of the water, soil or air space of another Member State.

Furthermore, the government of Ireland had participated in the public consultation procedures regarding the operation of the plant. During these procedures, Ireland opposed the operation of the plant on the grounds that it would perpetuate the nuclear fuel reprocessing industry in Britain. In addition, Ireland charged that potential discharges from the plant in the Irish Sea were objectionable and unacceptable. Further consultations were followed because there were concerns that the BNFL did not provide the public with sufficient commercial information that would justify the commissioning and the operation of the plant. The BNFL consulted with independent firms about the information that should be submitted to the public domain and information that could be withheld because it would involve giving up its competitive advantage; or because the release of information would breach safeguards and security requirements with regard to the location, quantities, and movements of plutonium.

The parties agreed to bring the case before the Permanent Court of Arbitration (PCA) based on the right to information requirements included in the OSPAR Convention. According to Ireland, article 9 of the OSPAR Convention provides it with the right to be informed on the following matters:

  • Estimated annual production capacity at the MOX facility;
  • Time taken to reach that capacity;
  • Sales volumes;
  • Probability of achieving higher sales volumes;
  • Probability of being able to win contracts for recycling fuel in “significant quantities;”
  • Estimated sales demand;
  • Percentage of plutonium already on site;
  • Maximum throughput figures;
  • Lifespan of MOX facility;
  • Number of employees;
  • Price of MOX fuel;
  • The number of contracts, if any, to purchase mixed oxide fuel from Sellafield;
  •  Arrangements to transport plutonium to Shellafield and mixed oxide fuel from Sellafield;
  • The number of transfers of plutonium and mixed oxide fuel to and from Sellafield.

The tribunal had to examine the following questions:

1. Whether article 9(1) of the OSPAR Convention provides for an obligation of the United Kingdom to disclose the information requested by Ireland;

2. Whether the information requested by Ireland was within the scope of definition of information provided for in article 9(2) of the OSPAR Convention;

3. If the information requested by Ireland was indeed within the scope of article 9 whether any of the exceptions included in article 9(3)(d) applied. Article 9(3)(d) of the OSPAR Convention provides that a party may refuse to provide information of “commercial and industrial confidentiality, including intellectual property.”

The tribunal first examined whether the United Kingdom’s obligation to provide Ireland with information was derived directly from article 9(1). Article 9(1) provides:

The Contracting Parties shall ensure that their competent authorities are required to make available the information described in paragraph 2 of this Article to any natural or legal person, in response to any reasonable request, without that person’s having to prove an interest, without unreasonable charges, as soon as possible and at the latest within two months.

According to the United Kingdom, article 9(1) provided for the obligation of states to establish regulations on the provision of information. The merits of an application for information were to be determined, thus, by U.K. municipal law. Ireland argued, on the other hand, that the United Kingdom’s obligation derived directly from article 9(1) and, thus, the tribunal had the jurisdiction to decide on the merits of the United Kingdom’s refusal to provide information. The tribunal agreed with Ireland. According to the tribunal, article 9(1) “is pitched at a level that imposes an obligation of result rather than merely to provide access to a domestic regime which is directed at obtaining the required result” and concluded that the United Kingdom was under an obligation to provide information.

The tribunal went on to examine whether the information requested by Ireland was under the purview of article 9(2).

The tribunal clarified that article 9(2) identified information as:

• Any available information on the state of the maritime area;

• Any available information on activities or measures adversely affecting or likely to affect the maritime area;

• Any available information on activities or measures introduced in accordance with the convention.

The tribunal disagreed with the Ireland that article 9(2) involves the release of all environmental information. The tribunal added that even if article 9(2) was interpreted to require the disclosure of all environmental information, the information requested by Ireland was not of the environmental type but more of the type of information on “economic justification.” The tribunal noted that article 9(2) was carefully crafted to include information on measures likely to have adverse effects on the maritime area and not on all measures.

Furthermore, the tribunal rejected Ireland’s claim that it had the authority to apply “evolving international law and practice.” Ireland had cited the decision of the ICJ in the Gabˇc´ıkovo-Nagymaros case, in which the Court stated: new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past.

The tribunal disagreed with Ireland that this passage from the Gabˇc´ıkovo-Nagymaros case gave it authority to apply law in statu nascendi that is still evolving rather than established law. The tribunal, furthermore, did not take into account the right to information as elaborated in the Aarhus Convention. The Aarhus Convention entered into force after the tribunal heard oral arguments. Neither the United Kingdom nor Ireland had ratified the convention at the time of the proceedings.

The tribunal balked at a broad interpretation of right to information requirements as articulated in various international instruments. It would be interesting to see how international law on the provision of information would evolve now that the Aarhus Convention has been ratified and new instruments are added that include access to information provisions. The tribunal was right to distinguish that for the right to information in environmental matters to function, a balance must be maintained between the interest of the public to know and the interests of states or companies that wish to keep commercial information confidential. As what is commercially important - and, thus, better kept confidential - and what the public must know may often intersect, this would, indeed, be a difficult balance to keep.

The multiple compliance and governance mechanisms analyzed in this chapter serve a number of functions including that of prevention of damage (EIAs and SEAs, notification requirements), monitoring (through accumulation of data, exchange of information and reporting), and enforcement (compliance procedures). The adoption of environmental instruments and methods that apply across environmental issues and economic sectors provides evidence of the increased sophistication of international institutions in handling environmental matters. Compliance and governance mechanisms provide a network of options to states regarding the implementation of environmental law. Overall, the provision of information under a “name, help, and, as a last resort, shame” a polluting state rationale is expected to produce more results than strict enforcement devices. In the information age, the most potent enforcement device may be the dissemination and use of information.

Permanent Court of Arbitration: https://pca-cpa.org/en/home/

UNECE – Environment Policy: http://www.unece.org/env/welcome

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(13) International Environmental Law

International Environmental Law

A Basic Guide to International Environmental Legal Research

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Compliance and Governance Mechanisms

Some of the most recent conventions provide for more extensive reporting requirements. For instance, the Climate Change Convention provides that state parties must provide a national inventory of emissions of greenhouse gases and of the removal of greenhouse gases by sinks using comparable methodologies. Developed countries are to provide a detailed description of policies and measures they have undertaken to address greenhouse emissions. Information designated by a party as confidential, however, should be treated by the secretariat as confidential, thereby removing possible fears of state parties regarding the release of sensitive information.

The Kyoto Protocol, as further implemented, may provide for a most structured reporting procedure.

Most compliance procedures provided for in international environmental treaties today recognize the review of compliance of a state’s reporting requirements, as one of their explicit functions. However, it has been noted that the requirements of reporting included in most international instruments often overwhelm the capacities of national bureaucracies to respond with adequate and meaningful reports.

No reporting, underreporting, or misreporting is, therefore, prevalent.

VERIFICATION AND COMPLIANCE

On-Site Inspections

On-site inspections by an international body to verify matters of compliance in areas under the jurisdiction of a state are rare, indeed, in international law. Inspections by the IAEA are the best known. The purpose of the IAEA inspections is to verify the conformance of nuclear reactors of states with international standards. However, even these inspections require that the IAEA enters into specific arrangements with the states concerned, and “surprise inspections” are not allowed.

With regard to pollution from various and diffuse sources of pollution, meaningful inspections, provided that are accepted by states as legitimate, do not seem to be feasible under the current structure of international law.

Formal Compliance Procedures

International environmental instruments are increasingly incorporating no adversarial Compliance Procedures (CPs).

Pursuant to article 8 of the Montreal Protocol, for example, parties to the ozone regime have established an Implementation Committee. The ozone implementation committee held about thirty meetings as of December 2003.

A compliance procedure has been adopted also under the UN/ECE Convention for Transboundary Air Pollution (CLRTAP). Although the convention itself does not provide for a compliance procedure, the 1991 and 1994 protocols specifically include such a procedure. A decision was made, therefore, to adopt a joint procedure that would apply to the convention and to the protocols simultaneously. Thus, a joint Implementation Committee has been established.

In 2002, parties to the 1998 Aarhus Convention adopted a compliance procedure in accordance with article 15 of the convention. What is interesting about this procedure is that members of the public can initiate the compliance proceedings under certain circumstances.

Under the UN/ECE EIA Convention, a compliance procedure has been adopted, despite the fact that the text of the convention does not provide for such a procedure. The procedure is being reviewed to incorporate provisions on public participation.

Under the Basel Convention, the first meeting of the Implementation Committee was held in October 2003. The compliance procedure under the Kyoto Protocol was finalized in 2001.

Furthermore, adoption of compliance procedures is being negotiated in other fora: the Biodiversity/Biosafety forum; the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides; the 2001 Stockholm Convention on Persistent Organic Pollutants; the 1996 Protocol to the London Dumping Convention; and the UN Watercourses Convention.

Other procedures that do not strictly qualify as noncompliance procedures (because there is not a specialized body to deal with noncompliance) are those adopted under the CITES and the Bern Convention for the Conservation of European Wildlife and Natural Habitats. The procedure established under the Bern Convention, for instance, provides that, when the secretariat of the convention comes across a case of noncompliance (e.g., through information provided by a party or an NGO), it first investigates the case. If it determines that action needs to be taken, it seeks further information from the party concerned. Following the response of the party, the secretariat decides whether to put the case before the COP meeting of the Bern Convention, which may have to undertake further action if needed.

Other procedures are geared more toward the initiation of a consultation process. Article 13 of the Climate Change Convention provides for a multilateral consultative process the purpose of which is to resolve questions of implementation of individual states rather than to pursue cases of noncompliance. State parties have to come to an agreement about the body that is to administer the multilateral consultative process.

In addition to the procedures included in international instruments, the UNEP and the ECE have adopted general guidelines on the compliance with and implementation of environmental agreements.

In general, compliance procedures do not serve the same function as dispute settlement arrangements.

• The function of a compliance procedure is to achieve uniform compliance with the provisions of an international treaty. Thus, the goal is to trigger erga omnes compliance from the violating state. By contrast, the purpose of a dispute settlement procedure is generally to resolve a dispute between two parties.

• The compliance procedure affects the future behavior of a noncompliant party. The purpose of a dispute settlement provision, on the contrary, is retroactive. Dispute settlement has to do with compensation and restitution of the harmed person.

• The compliance procedure is no adversarial. Although the dialogue between an Implementation Committee and a noncompliant party may become confrontational, it cannot be characterized as adversarial. The purpose of a compliance procedure is not to declare winners and losers but to find a common ground for the implementation of international legislation. Dispute settlement, on the contrary, is adversarial.

For compliance procedures to be viewed as legitimate some procedural requirements – namely transparency, fairness, predictability, and due process – have to be followed. Due process requirements include informing a party of a submission against it; allowing time for a response; allowing participation by the noncompliant party in the procedure; and providing for the scrutiny of information submitted against a party to determine its reliability.

Bodies that execute compliance procedures are usually appointed by the parties to a treaty. In some compliance procedures, it is emphasized that the individuals appointed are to serve “the common good” as understood under a specific treaty, rather than to accommodate the interests of the parties that appointed them. Another way to ensure the independent character of members of a compliance body is to lessen their dependence on state parties and to stress their expertise in the subject matter of the treaty.

In terms of who should be entitled to trigger a compliance procedure, current procedures offer a variety of alternatives, including the noncompliant party itself, another state party, the secretariat of a convention, the COP, or other treaty bodies. Compliance committees have a number of remedies at their disposal; these range from cautions/warnings and declarations of noncompliance to the adoption and application of a compulsory action plan that would address the implementation difficulties of a noncompliant state. Some procedures provide for the suspension of rights and privileges of the noncompliant party under the treaty in question, but the legal basis for the adoption of such an extreme measure is highly contested.

Nonforcible Countermeasures

As retaliation to an alleged contravention of an environmental obligation, states could adopt trade sanctions. Cases that have come before the WTO involve trade sanctions imposed unilaterally by states on other states because of an alleged violation of an environmental obligation. The WTO, as discussed in Chapter 9, has frowned on unilateral sanctions for the enforcement of conservation measures. The WTO has indicated, however, that multilateral trade sanctions may be viewed more favorably. Such multilateral trade sanctions are provided for in the Montreal Protocol against nonparties to the protocol or noncompliant state parties.

RIGHT TO INFORMATION AND PARTICIPATION AND ACCESS TO JUSTICE

International Instruments

The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was adopted in 1998 and entered into force in 2001. The convention was adopted under the UN/ECE framework. The convention is the first international instrument that develops unequivocally the right of the public to access information, to participate in decision making, and to access justice. As such, the convention, despite all the exceptions that (if read expansively) could defeat its purpose, is considered a revolutionary instrument that recognizes in a practical manner a human right to a healthy environment.

Although the convention provides for the right to a healthy environment, it is not the only instrument to acknowledge such a right. Many other instruments implicitly or explicitly have done so in the past. The convention, however, went many steps further than usually expected for international environmental law instruments by providing the procedures through which the right to information and participation can be materialized.

States as a general rule are reluctant to provide information either because they do not conceive it to be their function to do so or because they are weary about the consequences of the provision of too much information on their power to control the electorate. Thus, the right to information appears to increase the transparency and openness of government structures, as it allows citizens to have access to information at states’ disposal. At the same time, however, this seemingly democratic right empowers states because it legitimizes their role as collectors and organizers of information. This role can be taken advantage of in the collection of private information. The right to access information, the right to participation in decision making, and the right to access to justice have been called the three pillars of the convention.

Before analyzing the articles of the convention, one has to clarify the definition of public authorities against which the information and participation rights can be asserted. The definition of public authority is quite inclusive and comprises what traditionally could be considered public authorities and “natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment under the control of ” a traditional public authority. This includes government-created or government-financed corporations that perform public functions. In the United Kingdom, for instance, public functions are performed by private companies. Such private companies, because they perform public functions, fall under the scope of the convention. “Environmental information,” as defined under the convention, is also quite inclusive.

The convention is explicit that persons, organizations, or groups that exercise their rights under the convention:

• Must be recognized and supported;

• Shall in no way be penalized, persecuted, or harassed for their involvement; and

• Shall have access to rights established under the convention without discrimination as to citizenship, nationality, or domicile.

The convention supports what has been called active and passive access to information. Passive access to information has to do with the right of public to gain access to information at its request. Active access to information speaks of a government’s duty to collect and disseminate information on its own initiative.

To provide access to information, information must be collected. The state, according to the convention, has a central role in the collection and dissemination of environmental information. Public authorities not only must possess and update environmental information but also must establish systems to ensure the adequate flow of information. Public authorities must disseminate information to the public in the event of an imminent threat to human health and the environment so as to prevent and mitigate harm coming from the threat. If information is available but it is still hard to obtain, the purpose of the convention will be defeated. Effective access to information can be accomplished by a variety of means: publicly accessible lists, registers and files, positive official support, and the identification of points of contact. States are required to ensure that all information becomes available in electronic databases easily accessible through public telecommunications networks. States are required to establish a coherent, nationwide, and publicly accessible database – compiled through standardized reporting. States also are required to publish facts that affect major environmental issues and to make accessible relevant explanatory material.

The requirement not only to provide information but also to organize it so that it can be effectively accessed is the innovative element of the convention. The goal is for pollution inventories to contain information on discharges and emissions of each and every polluter so that the public acquires full knowledge and could name and shame polluters. The wide publication of noncompliance – which could undermine corporate reputations – is what policy makers are relying on to foster implementation. However, as mentioned earlier, the right to information, despite its democratic credentials, could become an intimidating tool in the hands of states. States absorbed in their now legitimate role as collectors and organizers of information may be willing to collect all kinds of information based on various public interest objectives. The convention provides explicitly that authorities must respond to requests of information “within the framework of national legislation” with copies of actual documentation141 without requiring the public to demonstrate an interest and in the form that the public requested. The convention provides explicitly that information requested must be provided within a month after a request has been received.

There are broadly formulated exceptions, however:

• The one-month deadline can be extended to two months when the volume and complexity of information justify such an extension;

• The information can be provided in a different form than that requested by the public.

The request also can be refused if:

• It is manifestly unreasonable or formulated in too general a manner;

• It concerns material in the course of completion or internal communications of public authorities when such an exception is provided by national law or customary rights;

• It violates the confidentiality of proceedings of public authorities;

• It adversely affects international relations, national defense, or public security;

• It hampers the ability to receive a fair trial or criminal/disciplinary proceedings;

• It adversely affects the confidentiality of commercial and industrial information or other legitimate economic interest including intellectual property rights with the exception of information on emissions;

• It corrupts the confidentiality of personal data where such confidentiality is provided for in national legislation;

• The interests of a third party would be affected and that party has not consented to the release of the information.

The sheer number and indefinite character of many of these exceptions could undermine seriously the purpose of the convention. Therefore, the text of the convention provides for grounds for refusal, which must be interpreted strictly by performing a cost-benefit analysis between the public interest served by the disclosure and the interest protected by nondisclosure. Refusal must be in writing if the applicant requests it; this must state the reasons for denying information and must be provided within a month or, for complex requests, within two months after the request has been submitted. The refusal must contain information on the process of appeal.

A public authority that does not possess a certain kind of information must refer an applicant to another authority. Parties can charge for supplying information, but the charges are not meant to deter access to information.

Right to Participation

One of the first instruments that refers to a right to participation is the UN/ECE Convention on Environmental Impact Assessment. The convention explicitly states that the assessment of proposed activities likely to have an environmental impact should take place with the participation of the public.

The Aarhus Convention establishes three types of participation:

• Public participation in decisions on specific activities, here called specific public participation;

• Public participation concerning plans, programs, and policies relating to the environment, here called general public participation;

• And public participation in the preparation of executive regulations and of legally binding instruments, here called normative public participation.

The general themes that run through these types of participation include:

• Reasonable time frames – that public participation procedures should allow sufficient time to inform the public and for the public to prepare and participate effectively;

• Early in the process – that public participation should occur early in the process when all options are still open;

• Accounting for results – that the state must take into account the results of public participation.

For specific participation, the activities to which this type of participation applies are listed in the Annex to the convention, but it is provided that other activities could be included that may have significant environmental impact in accordance with national law.The public must receive notice early in the process in an adequate, timely, and effective manner. This means that just posting a notice in any public medium is not adequate and effective if the public concerned does not have access to the medium or the information is buried under all other sorts of information.

Individual notice also may be necessary, according to the circumstances. The convention provides that, for a notice to be effective, it must include inter alia the proposed activity, the nature of possible decisions and draft decisions, and the public authority responsible for making decisions. The notice also should include information about the participation procedure itself – namely, when the procedure starts; the opportunities for the public to participate; the time and venue; and an indication of the type of environmental information already available. The public authority must enable the public to participate by providing all information useful for decision making. This includes the site and physical and technical characteristics of the proposed activity, the effects of the activity on the environment, the measures envisaged to prevent and to reduce adverse effects, an outline of the main alternatives, and a nontechnical summary. In other words, for the countries that have adopted the EIA Convention, this convention specifically requires authorities to provide the public with documentation potentially included in an EIA.

General public participation in plans and programs also is authorized under the convention, but the provision is broader than the provision for specific participation. It is provided, however, that participation in plans and programs must take place under “a transparent and fair framework,” which indicates that, at least, participation must be effective. The requirement for public participation in plans and programs links this convention to the SEA Convention that provides for the environmental assessment of plans and programs. The convention becomes even more laconic with regard to participation in environmental policies.

Regarding normative participation, it is underlined that the public should be given the opportunity to comment either directly or through representative consulting bodies on the preparation of executive regulations and legally binding instruments. Draft rules should be published and be available publicly

Access to Justice

Access to justice is provided for in the convention when the request for information has been refused wrongfully, when it has been ignored, or when it has been answered inadequately. Under these circumstances, the convention provides that the public should have access to a review procedure before a court or an independent and impartial body. The procedure provided for must be free of charge or inexpensive. Certain countries have decided to create independent and impartial bodies to review access to information cases. For instance, France has established the Commission for Access to Administrative Documents. Most countries also have administrative appeal processes that are usually free of charge. The convention provides that those who have standing to bring access to information complaints must either have sufficient interest or maintain that their rights have been impaired. For the purposes of the convention, NGOs are deemed to have sufficient interest and deemed to have rights capable of being impaired.

An interesting facet of the access to justice provisions is that they are not only available for procedural and substantive violations of the access to information rights but also for any violation of national environmental law. Access to justice should provide adequate and effective remedies – including injunctive relief – that must be equitable and timely. Moreover, judicial decisions must be in writing and must be publicly accessible.

Other Provisions

The governing body of the Aarhus Convention is the Meeting of the Parties that takes place every two to three years. In the meantime, working groups are to elaborate on the different aspects of the convention. The parties to the convention have established a compliance committee. The compliance committee reviews cases of noncompliance through submissions by parties, referrals by the secretariat of the convention, or communications from the public. The compliance committee cannot engage in enforcement but has to report to the Meeting of the Parties on its findings. The Meeting of the Parties may take measures against a state that has breached its obligations under the convention that range from assistance and cautions to the suspension of privileges accorded under the convention.

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(12) International Environmental Law

Center for International Environmental Law (Video)

International Society for environmental Information Sciences

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Compliance and Governance Mechanisms

STATE OBLIGATIONS

Exchange of information, prior notification, consultation, and informed consent are considered the “staples” of many international treaties. States do not hesitate to inject these procedural requirements into international agreements. These requirements are so frequently used that one could claim that they have become rules of customary international law. Other commentators argue, however, that, although states have been involved in many notification and consultation procedures, most of this involvement results from a specific treaty requirement rather than from a belief in the existence of a general rule of customary international law requiring notification and consultation. According to the same commentators, except for the requirement to notify and to consult in emergency situations, which could be considered a customary international rule, there is no general customary notification and consultation rule in international environmental law.

There many reasons why states may be hesitant to exchange information, to notify another country, or to consult with another country. States may be engaging in dangerous activities, and the discovery of this by other states could trigger claims of state liability or responsibility. Some activities of states or private operators located in their territory may constitute trade secrets, the revelation of which could compromise the comparative advantage of states. Information on how to monitor or best address an environmental problem could involve the exchange of commercially valuable knowledge. In other cases, the revelation of an environmental accident could adversely affect the reputation of states. For all these reasons, it seems that states have an inherent interest in hiding rather than in divulging information, let alone notifying other states about the true content of the information in their possession.

In some cases, states may be more willing to reveal information, for instance, in cooperative situations in which none of the parties is perceived to hold privileged information, when the revelation of information may have positive reputation effects, or when information may assist in putting together alliances against a third state.

Exchange of information also is preferred in regions in which countries have resolved to engage in collaborative efforts to address common environmental problems. Thus, in order to determine whether the exchange of information, notification, and consultation requirements is emerging as rules of customary international law, one has to make some comparisons. One needs to pinpoint circumstances under which states have revealed information, even if this is not strictly required under a treaty, versus circumstances under which they did not. Because there is no knowledge on how many potential notifications states have missed – for example, when it would have been a good idea to notify – it is hard to determine how frequently notification and consultation are followed as a customary rule of international environmental law.

It must be noted, however, that some developments, for example, the general progress in technology (e.g., the information technology, or Vessel Monitoring Systems), and developments specific to the international environmental field, including:

• The right to information, participation in decision making, and access to justice convention;

• The establishment of joined monitoring systems; and

• The transparency that is necessary for the proper functioning of some environmental instruments, indicate that more information is available in the international system with the assistance of or in spite of the resistance of states.

Exchange of Information

Exchange of information is a routine form of cooperation among states. Many treaties have provided as a matter of course for exchange of information. The UN/ECE Convention on Transboundary Air Pollution (CLRTAP) includes many articles on the exchange of information. Article 8 of the convention more specifically provides that states must exchange information on emissions and major changes in national policies and technologies for reducing transboundary air pollution. Similar provisions for exchange of information are included in the protocols to the convention.

The EMEP monitoring system under the CLRTAP has been instrumental in supplying parties with information about emissions and compliance by other parties. Other instruments that provide for the provision and exchange of information include the Stockholm Declaration, the Rio Declaration, Agenda 21, the Basel Convention, the 1986 IAEA Notification Convention, the UNCLOS, the Vienna Convention for the Protection of Ozone Layer, and the Montreal Protocol for the Protection of the Ozone Layer.

The Montreal Protocol is quite detailed regarding the exchange of information. State parties must exchange information on the best technologies for improving the containment, destruction, and recycling of ozone-depleting substances (ODS); on the possible alternatives to ODS; and on the costs and benefits of various control strategies. Such exchange of information could be quite extensive, and it may involve patents and trade secrets that could be viewed as a competitive advantage of certain states. Companies usually are reluctant to release this type of information to other countries and competing companies. Because of the difficulties of enforcing the exchange of information on new technologies, the Climate Change Convention is less demanding in this respect. The convention, therefore, cannot be interpreted as forcing the release of confidential private information.

The Convention on Biological Diversity urges the parties to transfer technology, and the knowledge associated with it, especially to developing countries. This provision has not been well received by companies in the developed world, which are more concerned with preserving their intellectual property rights rather than with transferring technology and the knowledge associated with it. Overall provisions for exchange of information play a pivotal role in international environmental law. Accumulating credible information can discourage states from flouting international conventions and could alert other states about potential issues of noncompliance.

Notification

One way to obtain information is through notification by a state of origin of transboundary environmental issue. The EIA Convention requires the state of origin to notify the state affected. The EIA Convention goes as far as to require the response of the affected state within the time frame set in the notification. The duty of states of origin of polluting activities to notify states that may be affected is included in many treaties. The UN/ECE Convention on Transboundary Air Pollution provides for notification.67 Many bilateral treaties on air pollution and nuclear installations provide for an obligation to notify. A number of bilateral treaties on nuclear installations contain detailed provisions on notification and the supply of information with regard to the construction, maintenance, and operation of nuclear installations, especially those that are close to frontier areas.

A number of international instruments include the obligation to notify in emergency situations. The 1986 IAEA Notification Convention69 provides for early notification in case of a nuclear accident. The treaty was adopted after the Chernobyl accident, when the then Soviet Union failed to notify affected states promptly.

This treaty places on the state of origin of a nuclear accident the duty to notify all affected states. The notifying state must respond to requests from affected states for further information and consultations.70 The IAEA Convention has some limitations because it applies in cases of accidents that pose actual or potential risk of transboundary radioactive contamination. The convention applies to accidents of “radiological safety significance” but does not apply to accidents that may occur in military nuclear installations.

The duty of notification in emergency situations or when a country is to engage in an activity likely to have transboundary environmental impacts is provided in a number of other instruments, such as the Rio Declaration, the UNCLOS,  the Basel Convention, the Biodiversity Convention, and the 1997 UN Watercourses Convention. The 1997 UN Watercourses Convention provides for a detailed notification procedure. A state that is to undertake measures that would affect a shared watercourse must notify the affected state and wait six months for a reply. During this period, the notifying state is not to put into effect any measures that would affect the shared watercourse. The convention provides for the reply to the notification as well as the course of action to be taken in cases in which notification is not given or there is no reply to the notification.

Consultation

Consultation is the natural extension of notification. The EIA Convention provides for the obligation of a state of origin to consult with an affected state after the notification is given. It must be noted that the requirement of consultation does not give a veto power to an affected state with regard to an activity planned by a state of origin. But an obligation to consultation means that, at least, the comments of affected states are taken into account in the planning of a project. Otherwise, the obligation for consultation would be an empty requirement.

The duty of notification and consultation can be found in early cases of international environmental law, for example, the Lac Lanoux arbitration. In the Lac Lanoux case, the tribunal concluded that France had the duty to notify and to consult with Spain with regard to works planned on Lake Lanoux but that such consultations did not give Spain the right to veto France’s decisions. The duty of consultation is implied in the Fisheries Jurisdiction cases in which the ICJ concluded that a state that contemplates to extend its fisheries zone is to take the interests of affected states into consideration. This duty can be realized through consultations.

Other international conventions that provide for the duty of consultation include the UN/ECE Transboundary Air Pollution Convention and several bilateral treaties on nuclear installations.The COPs of most conventions constitute fora for the exchange of information and consultation of state parties to a convention.

The obligation to conduct consultations is also provided in the IAEA Notification Convention, the Ramsar Convention, and the UNCLOS. Principle 17 of the Rio Declaration provides for the requirement of consultation.

Some more recent conventions provide, in addition to notification/consultation, for the prior informed consent of the notified party. This requirement could be considered a “consultation-plus” procedure, in which the affected party has, in effect, the power to veto the activity of the originating party. For instance, with regard to the transfers of hazardous wastes, in order for a state party to the Basel Convention to transfer wastes to another country, it must obtain the prior informed consent of that country. If the importing country refuses to consent to the waste shipment, the shipment cannot take place, at least not legally. The prior informed consent requirement is included in the Rotterdam Convention on Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals in International Trade. Even more elaborate consultation requirements are included in the 2000 Biosafety Protocol, in which it is provided that, for a transboundary transfer of living modified organisms to take place, the PIC of the importing country is required in addition to an Advance Informed Agreement (AIA) procedure.

Reporting/Monitoring

Data gathering is a prerequisite to lawmaking. Without data, one cannot get a concrete understanding of the nature and extent of environmental problems and, thus, cannot devise institutional means for addressing those problems. Accurate data have been an important precondition for the successful conclusion of regional water treaties. The absence of accurate data on the state of fisheries resources has marred international and regional fisheries management regimes.

Because of the importance of data for the proper functioning of international law, many treaties provide as a task of states to gather various types of information on issues that a treaty deals with and to report back to the treaty institutions, usually the COPs, through secretariats. Most international environmental regimes provide for the requirement of reporting. However, the record of compliance with reporting requirements is not always stellar. Reporting requirements are taken seriously in the International Labor Organization (ILO), but compliance with reporting is fair to poor in most environmental treaties. Reporting is quite problematic under many human rights instruments.

Some conventions require state parties to report on their performance with respect to standards established under these conventions. Other conventions require parties to report on future plans and programs to meet treaty goals. Yet other conventions require reporting in order to feed information databases established under the convention. Several international institutions have established monitoring bodies. The purpose of these bodies is to collect information on the state of environment. The UN/ECE Convention on Transboundary Air Pollution has established a monitoring program, called EMEP, which has played an important role in air quality control in Europe.

Most international environmental treaties provide for reporting/monitoring requirements more or less explicitly. Such conventions include the UNCLOS, the 1997 UN Watercourses Convention, the Vienna Convention for the Protection of the Ozone Layer, the Climate Change Convention, the Biodiversity Convention, the MARPOL Convention, and the 1995 Fisheries Agreement.

Frequently, the subject matter of a treaty dictates the content of reporting. Certain treaties request parties to report on their emissions or discharges or to provide the inventories of their natural resources.95 Other treaties concentrate on the violations of a convention by persons under the jurisdiction of states. Still other conventions ask states to report on measures they have undertaken to comply with the convention.

The problem with periodic reporting requirements is that they are rarely accompanied by an independent evaluation of the reports. States provide reports on the overall measures they have undertaken to address an environmental problem, but rarely do they provide information to enable a third party to determine whether these measures have been sufficient. Also, most treaties do not provide for independent evaluators who would examine reports provided by states and explore potential discrepancies. Most reporting requirements do not specify the content of reports and fail to provide for a uniform reporting format.

Some of the most recent conventions provide for more extensive reporting requirements. For instance, the Climate Change Convention provides that state parties must provide a national inventory of emissions of greenhouse gases and of the removal of greenhouse gases by sinks using comparable methodologies. Developed countries are to provide a detailed description of policies and measures they have undertaken to address greenhouse emissions. Information designated by a party as confidential, however, should be treated by the secretariat as confidential, thereby removing possible fears of state parties regarding the release of sensitive information.

The Kyoto Protocol, as further implemented, may provide for a most structured reporting procedure. Most compliance procedures provided for in international environmental treaties today recognize the review of compliance of a state’s reporting requirements, as one of their explicit functions.103 However, it has been noted that the requirements of reporting included in most international instruments often overwhelm the capacities of national bureaucracies to respond with adequate and meaningful reports. Nonreporting, underreporting, or misreporting are, therefore, prevalent.

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(11) Environmental Law

Lecture Environmental Impact Assessment - Video

Environmental impact assessment - Wikipedia

Strategic environmental assessment - Wikipedia

Impact Assessment Law, Policies and Practice

STRATEGIC ENVIRONMENTAL ASSESSMENT (SEA) current practices, future demands and capacity-building needs

Environmental Impact Assessment and Strategic Environmental Assessment: Towards an Integrated Approach - 2004 - UNEP

Strategic Environmental Assessment - SEA - European Union

IEL

Compliance and Governance Mechanisms

This texts examines compliance and governance mechanisms as they apply to most international environmental issues. Environmental impact assessments are needed, for instance, for most development projects, independent of whether they affect air quality, water, or species diversity. The right to information and participation in decision making applies to a large number of environmental issues.

In addition to general governance mechanisms, many treaties contain requirements for the exchange of information among states or for state reporting to institutions established under a treaty – either about the level of state compliance or regarding the state of the environment. Many environmental instruments include the requirement of notification and consultation with other states, which are especially important in emergency situations. However, before 1990, it was rare for environmental treaties to establish implementation committees or independent inspection panels.

Compliance and governance mechanisms could be instrumental in addressing environment problems, provided that states are willing to comply with their obligations. For instance, prompt notification in case of an environmental emergency can save lives and lead to preventive efforts that would thwart further contamination. States reporting on the severity of their environmental problems and their compliance record could provide information that would help clarify the nature of these problems and indicate measures to address them. The importance of information must not be overlooked in environmental matters, the effective management of which is based on the availability of correct information. Improving the quality of information about the nature of a problem and the means available to address it could go a long way toward resolving some of the thorny environmental issues (e.g., fisheries management, in which accurate information has been notoriously unavailable, or climate change, in which some scientific uncertainty has prevented countries with high emissions from taking action).

ENVIRONMENTAL AND STRATEGIC IMPACT ASSESSMENT

The Environmental Impact Assessment (EIA) was adopted first in the United States as a way to assess the environmental implications of development projects. Since then, a large number of national and international environmental instruments have included provisions for assessment.

The United Nations Economic Commission for Europe (UN/ECE) Convention on Environmental Impact Assessment (EIA) in a Transboundary Context provides for EIA for activities that are likely to cause a significant adverse transboundary impact, leaving the definition of what constitutes a “significant” impact open to interpretation.

The convention provides for a four-step process for EIA for projects likely to have transboundary impacts. First, the state of origin must notify the affected state. This notification must contain information on the proposed activity, the nature of possible decision, and an indication of a reasonable time within which a response is required. If the affected state does not respond within the time set in the notification, or indicates that it does not intend to participate in the procedure, then the transboundary EIA process stops there.

Otherwise, on receipt of response of the affected party, the state of origin must send information on the EIA procedure and the proposed activity. The notification process can be initiated by the affected party if that party considers that it would be affected by an activity listed and no notification has been given by the state of origin. In that case, the treaty provides for an exchange of information between the state of origin and the affected state in order to determine whether there would be a transboundary impact. If the parties cannot agree, then they can submit the matter to an Inquiry Commission (unless they agree on another method of settling the dispute). It is worth noting that an Inquiry Commission has yet to be used in a transboundary EIA. Furthermore, it is provided that the public of the affected party must be informed and must be provided with possibilities of making comments on or of filing objections to the proposed activity. Such comments or objections must be transmitted to the state of origin.

The second step for a transboundary EIA involves the preparation of the environmental impact assessment information. Appendix II of the convention set outs the minimum requirements for an EIA, which must be communicated to the affected state. The requirements must include a description of the proposed activity, alternatives to the activity, including a no-action alternative, mitigation measures, and postproject activities.The state of origin of the transboundary activity is required to allow for the participation of nationals of the affected state in the decision-making process, on the same terms, as it allows for its own nationals.

The third step involves consultation between the state of origin and the affected state on the basis of information supplied by the state of origin.Consultations must happen within a reasonable time frame. The state of origin is not required to refrain from the proposed activity based on the failure of consultations with the affected state, but in its final decision it must take into account the comments provided by the affected state.

The fourth step involves the final decision and post project analysis. The purpose of the post project analysis is to monitor compliance with the conditions set out in the authorization or approval of the proposed activity and the effectiveness of mitigation measures. Post project analysis is undertaken if the concerned parties determine that it is necessary to do so.

The record of state compliance with the convention is mixed. The implementation of the convention has encountered some problems, for example late notification, notification in the language of the country of origin, inadequate information in the notification, difficulty of understanding the originating party’s EIA procedure and problems with processing notifications. Some of the parties reported that the content of the EIA documentation they received was inadequate. Most of the parties noted, though, that their comments had been taken into account by the state of origin.

Regarding the participation of the public of the affected state in the EIA process, some of the common problems states describe include difficulties in interpretation, a lack of public interest, and border controls. Parties reported that comments received from the public of the affected state were taken into account in decision making.

Some parties reported that they have been involved in EIA procedures in which the party of origin did not initiate consultations. Issues regarding the translation of the EIA documents in other languages, and who should undertake the costs of these translations, also emerged. Even after reviewing the record of implementation by state parties, it is difficult to decipher whether the EIA process has any real impact on the decision-making Appendix process or whether it is one more procedural requirement by which a number of steps are mechanically followed as items to check off a list. In this context, one should not underestimate the information in the hands of the state of origin and the leverage that such information gives to that state. A state may decide to divulge or bury such information, and this could affect the quality of EIA.

The EIA is especially powerful when it is used by international financial institutions as a condition for providing assistance for national projects. The World Bank adopted its own EIA procedures, the World Bank Operational Directive on EIA, in 1989, and it has been revised frequently. The World Bank has performed three reviews of its own EIA procedure. The first review revealed that the EIA process was operative and was producing results, but several problems were reported. Such problems included a weak process of public consultation, insufficiently analyzed site and design alternatives, inadequately developed mitigation, monitoring, and management plans, and a limited EIA impact on project design.

The second review was performed in 1997. It was noted that the EIA was incorporated firmly into the Bank’s policies but there were questions about the supervision of the EIA procedure and the increasing workloads regarding the performance of EIAs. The study noted that the most important improvements in the performance of EIAs occurred in the areas of mitigation, planning, and monitoring. But public consultation and analysis of alternatives remained a weak point, although some evidence of progress was reported. The review recommended the employment of more environmental specialists (especially local ones) and the greater use of local NGOs. The review stressed the importance of Sectoral Environmental Assessments (SEAs) as the Bank is attempting to adopt a sector wide view of its loan policies. The review noted that SEAs were a more effective means of addressing sector-related environmental issues that were only partly addressed with project-specific EIAs.

A 2002 review of the World Bank’s EIA process followed up on the recommendations of the 1997 review. The Bank appeared to be beefing up its training programs on EIA and tried to improve the capacities of borrowing countries. The Bank established measures to ensure that public consultation was strengthened and that alternative projects were actually proposed during the EIA process. Further efforts have been undertaken so that EIAs are executed early in the process; recommendations provided for in an EIA are transformed into precise legal requirements in the loan and credit agreements. There is an understanding that, unless EIA results are precisely incorporated into the legal loan and credit instruments, they would be disregarded.

Furthermore, efforts are made so that category A projects (projects with significant environmental impacts) and category B projects (projects with potential environmental impacts) are supervised annually by an environmental or social specialist.

The World Bank has now incorporated EIA into its environmental and social safeguard policies. The purpose of these policies is to include environmental and social policy requirements in the projects undertaken by the Bank. In addition to EIA, various safeguard policies have been adopted. The Bank also has established a Quality Assurance and Compliance Unit (QACU). This unit functions within the Environmentally and Socially Sustainable Development (ESSD) Network of the Environmental Department at the Bank. The QACU is making progress in ensuring the implementation of safeguard policies at the Bank.

However, several problems remain that the Bank is attempting to address. The Inspection Panel, which the Bank has established to its credit, has discovered several breaches of safeguard policies of the Bank. Several other problems have been encountered in EIAs.

The initial categorization of a project as an A project guarantees that the project commands more attention. The EIAs performed on category A projects have improved. B project categorization, as a rule, generates less attention in a number of areas, including analysis of alternatives, public consultation, and supervision. Because a categorization of a project as a B project would involve “less effort,” there is an inherent personnel bias to categorize all projects as B projects.

Other problems include the lack of supervision by environmental specialists and the need for better tools in identifying long-termenvironmental and social impacts.Although public consultations have improved, in general, most of this improvement is noticeable in category A projects rather than in category B projects. This has led to an incentive to categorize all projects as B projects. In the context of bilateral donor assistance, the issue of coherent EIAs has been raised within the OECD. The OECD has attempted to devise “terms of reference” that would be common in all bilateral assistance projects, but the practicality of such an endeavor has been challenged by some donors that view EIAs as issue-specific.

The OECD has pointed out the complexity involved in the EIA process, namely, the involvement of multiple stakeholders, the multijurisdictional legal/regulatory framework, the complex scientific data, and sophisticated analytical methods. Because of this complexity, the effective management of the EIA process is a significant challenge for most states.

A new instrument was adopted in 2003 as a protocol to the EIA Convention, the Protocol on Strategic Environmental Assessment (SEA). SEAs have been popular nationally and internationally as a means of improving the understanding of environmental effects of development projects. The World Bank’s Sectoral Environmental Assessments are, in essence, SEAs for a specific sector. The EU also has adopted a directive on SEAs.

The EIA and the SEA differ in their scope. The EIA takes place after a policy has been decided for the projects that would implement the policy. The SEA takes place at the level of policy formulation. For instance, if a government decides to cover its energy needs by using more coal than other resources, EIA can be used to assess the effects of coal use on the environment for each project that implements the policy.

By contrast, SEA would be applied at the sectoral level, at the point at which the government makes a decision on the methods to cover its energy needs. In practice, what differentiates SEA from EIA is that SEA is applicable before a plan or a program is adopted or submitted to legislation, whereas EIA is applicable after a plan or program is adopted for the individual projects that implemented it. SEA, whenever performed, is likely to reduce the number and scope of EIAs because many of the issues and alternatives usually addressed at the EIA level would be addressed at the SEA level. Despite the possibilities of implementation of SEA at the policy level, most SEAs today are performed at the program and planning level.

The 2003 protocol provides the sectors for which SEAsmust be performed, which include agriculture, forestry, fisheries, energy, industry including mining, transport, regional development,waste management,water management, telecommunications, tourism, town and country planning, and land use.

The World Bank has increased its use of SEAs and has performed SEAs in various countries and regions on different sectors of the economy, including energy, power, water, wastewater, and transportation. The Bank has noted several advantages with the performance of SEAs. Such advantages include the identification of key environmental issues at an early stage, a better framework for a legal agreement, and better decision making. The Bank also has been involved in a limited number of Regional Environmental Assessments (REAs), which could accurately be described as strategic assessments with a regional outlook.

The execution of SEAs has been more challenging in bilateral donor assistance. Most governments have not developed the methodologies and lack experience in conducting SEAs. Some commentators have characterized SEAs as the reincarnation of national/regional planning. Because such planning is performed at a higher level of government than project planning, “outside” intervention is not often welcomed (e.g., by donors or NGOs). This has to do with the degree of confidentiality that often accompanies and is expected of high-level policy decisions. Having said that, the outright exclusion of NGOs from the SEA process may not be politically feasible today.

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(10) Environmental Law

Facebook Page - Environmental Global Warming - Education Website

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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(9) Environmental Law

Lecture 1: The Scope of International Environmental Law

INTERNATIONAL ENVIRONMENTAL GOVERNANCE - UNEP

IEL

Foundations of International Environmental Law

ENCLOSURE OF GLOBAL COMMONS - ENCLOSURE OF GLOBAL COMMONS AND GLOBAL WELFARE

The gradual enclosure of global commons is a fact. The question that must be answered is whether this enclosure is beneficial for the global welfare or whether international policy makers should pursue a different course of action for the development of international law, a course of action more likely to increase global benefits.

Even the use of term “global welfare,” however, could be looked on with distrust. An argument that enclosure instruments, or any instrument for that matter, could have some effects on “global welfare” seems to be premised on an assumption of a world that shares the same interests. As often repeated in this study the world is divided between developed and developing countries and even between developing and least-developed countries. Even within the same group of countries, developed or developing, states could very well conceive that their interests are not aligned with those of their counterparts. Many could argue, justifiably then, that global welfare is a fiction that attempts to generate unity in a world divided between the haves and the have-nots or, even worse, according to nationally conceived interests.

The notion of global welfare is examined here from the foundational perspectives of international environmental law – namely, minimum order, equity, and effectiveness.

In other words, the question we attempt to answer is whether the enclosure of global commons can generally be perceived as an equitable, effective enterprise for all of those that participate in that enterprise.

In terms of effectiveness, the instruments are judged on whether they have been able to bring a minimum order (some sort of collaboration among states) or a maximum order (the effective management of an environmental problem that could, at least, partially generate a resolution of such a problem).

From the perspective of effectiveness as a minimum order, one could easily conclude that most environmental regimes have been able to bring order in what is often conceived to be a chaotic international scene.

From the respective of the effective resolution of environmental problems, international environmental instruments have had a mixed record of achievement. This is because some of the instruments have not been able to address the distributional issues that are at stake. Dissension and disagreement, therefore, are perpetuated in international fora as countries engage in forum shopping to achieve the resolution that would best serve their interests.

International environmental regimes may become ineffective also because countries have been reluctant to invest the resources that would allow for regime monitoring, enforcement, and for the minimum infrastructure for regime development.

As environmental issues compete with other issues (such as various conflicts and epidemics) considered of relatively higher importance in international agendas they rarely acquire the priority they could deserve.

International environmental regimes, thus, may lack in effectiveness either because they have not addressed distributional issues in a satisfactory fashion or because they have not acquired the importance in international arenas that would attract the attention and resources of states.

Fisheries

The enclosure movement in fisheries has produced a number of regional agreements that attempt to control the fisheries of an area by giving priority to coastal states and distant-water fishing states with historical rights in fisheries. These agreements are usually perceived as equitable among the states that agree to share a resource. For those who remain outside, however, these agreements are perceived as inequitable. The issue is, for instance, why historical rights should be given preference over newer claims. Sometimes also skirmishes develop among states that have entered the agreement – between states more attuned to preserve the resource (usually coastal states) and states more interested in the quick economic profit (usually distant water fishing states). The distributional issues in fisheries management are bound to be the most explosive issues in the future management of the resource. The success and, thus, the effectiveness of the regime would depend on its ability to generate perceptions of equitable distribution among the insiders and to compensate outsiders for nonparticipating. In the absence of means of compensation, effective and, thus, legitimate enforcement means must be put in place.

The distributive character of fisheries regime is particularly relevant in some regional fora. The Pacific fisheries resources regime has been evolving into a regime in which small island states have started to assert control over their fisheries resources and are using the regime as a mechanism to spur collective action that would generate rents from the resource. In the past, such rents were not forthcoming as better-equipped distant water fishing states tended to dominate the management of the resource.

The cost-effectiveness of regional enclosures has not been examined, specifically, as the effectiveness of the regimes is still under question. The international system is by definition an incentive-based system and, thus, a cost-effective system because it avoids in principle third-party enforcement. It seems unlikely that the fisheries regime, as it develops through exclusionary enclosures, however, would avoid traditional enforcement. It is highly likely that the regime will be challenged by states that remain outside the regime. Because the compensation of losing states may not be high enough to be considered satisfactory by them, only the credible threat of enforcement would prevent unregulated fishing in the high seas.

A final question is whether regional fisheries agreements are more effective than the prior regime of freedom of fishing in the high seas. The anarchical situation in the high seas combined with threats to the sustainability of fisheries resources presented the enclosure of fisheries – in terms of regulation and assertion of jurisdictional control by coastal states – as the only reasonable outlet. It seems that, in the case of fisheries, the choice is between two evils: open access and ownership by exclusion.

As open access is becoming untenable, ownership by exclusion seems to be the future evolving norm.

Germplasm and Related Knowledge

In the plant genetic resources regime, two enclosure tendencies are in place. The first one concerns the physical enclosure of resources within the territory of a state. The other has to do with the enclosure of intellectual commons. The physical enclosure of plant genetic resources has been pursued more as the restoration of distributional equity and the tit-for-tat response to intellectual property rights over “worked genetic resources” expressed as plant breeders’ rights or patent rights on biotechnology inventions. Plant breeders’ rights have been protected for years and new laws have been enacted for the patented protection of biotechnology inventions.

As a response to the “enclosure of intellectual commons,” countries rich in biodiversity, but not advanced in biotechnology, started to view the enclosure of their physical resources as fair and the perfect retaliation against the assertion of developed countries concerning intellectual property rights over “worked resources.” It was expected that the enclosure of “raw” biodiversity resources, and the concomitant assessment of fees for accessing those resources, would bring countries economic advantages. It was further expected that new norms would emerge for sharing in the profits of intellectual property rights over resources. Although new norms have emerged that provide restricted conditions of access to unprocessed biodiversity resources, the advantages envisaged by developing counties in enclosing their germplasm resources have yet to materialize, at least, to the extent that developing countries had contemplated.

Overall, the regime for the enclosure of “raw germplasm resources” has been characterized as ineffective. Too many barriers have been placed on the access to “raw genetic resources” so as to inhibit research and innovation without making developing countries wealthy. The control of access to germplasm resources inspired by corrective justice concerns has been unable to address in an effective fashion the distributional issues of the present, namely, how resources that are found in some biodiversity rich areas of the world could be accessed by those who want to generate profitable knowledge by providing, at the same time, some measurable profitable outcomes for the developing world.

Developing countries believe that they are entitled to some compensation, given that it is knowledge extracted from their resources that generates wealth for international corporations. Without these “raw resources,” often propagated and preserved by local populations, many of the “inventions” of multinational companies might have never happened.

Multinational companies, by contrast, do not seem willing to provide any substantial compensation for the acquisition of resources. This is because they perceive that the value they add to the resource, after many years of experimentation, is what generates profits and not the resource itself. Some bio prospecting agreements between developing countries and companies of the developed world attempt to address the concerns of developing states without, at the same time, ceding too much ground in terms of monetary benefits to such states.

Demands to open the intellectual property rights regime, at least with regard to biotechnology, are unlikely to shake the foundations of such a regime. Biotechnology is a new technology and countries (and companies) are likely to continue to be zealous of biotechnology innovations generated within their borders. It is unlikely that biotechnology would become open-access technology any time soon, as many developing countries would prefer.

Although demands to open the intellectual property rights regime are unlikely to produce the demise of the regime, they could affect the shaping of such a regime. Challenges to biotechnology patents based on the existence of prior knowledge may discourage the filing of superficial patents. Forcing the disclosure of knowledge obtained from indigenous communities, and on which a biotechnology invention may be based, could assist in some of the benefits from intellectual property trickling down to those communities.

Demands to open intellectual property, so that inventions become common property immediately after they are recognized, are unlikely to find soon a fertile ground. But demands to open the intellectual property rights regime are likely to make such a regime more responsive to claims of equity, especially with regard to the appropriation of prior knowledge, when such knowledge should have remained in the public domain as open-access knowledge. The intellectual property rights regime over “worked resources” that originate in developing countries is likely to continue to be conceived as inequitable from the perspective of countries within the territories of which such a resource is located. This is likely to be so even if the “worked resource” involves a clear “inventive step” in the isolation of valuable material within the resource.

Demands to open the intellectual property rights regime are not always based on equity concerns. They have to do with the effectiveness of the regime as well. For instance, in an era when the distinction between discoveries and inventions is becoming blurred, it has been charged that intellectual property rights on knowledge are bound to undermine rather than to spur innovation.

The fundamental premise of intellectual property rights regime is that it encourages innovation because it allows scientists to obtain monetary and reputational benefits from the fruits of their endeavors. Demands to open the intellectual property rights regime challenge this fundamental assumption. Claims are made, for instance, that the sharing of more knowledge and the appropriation of less knowledge would result in more innovation. This is because so many of the new intellectual property rights claims are made not on “inventions,” as inventions were understood in past, that is some sort of device ready for application. Intellectual property rights also are made on substances found naturally, provided that a scientist has been able to isolate these substances and identify them in the laboratory. Declaration of property rights over a process to isolate a naturally occurring substance, when other competing processes of isolation have yet to be invented, essentially declares a monopoly over the use of the substance. Legitimate concerns can then be raised whether such an effective monopoly is preferable to a sharing arrangement.

As technology has developed to include more than improvement in mechanical devices, the intellectual property rights regime has had to evolve to encompass the new life technologies. The debate over what should be considered patentable, and what should not, would continue as such technology is further refined and developed. The declaration of property rights over living material is unlikely to cease. Courts and legislators, however, would need to define further the parameters of protection of intellectual property ownership.

Developed countries do not intend to unravel intellectual property rights protection in order to accord biotechnology concessions to the developing world. It is also unlikely that developing countries would balk at the enclosure of their unprocessed germplasm resources. The enclosure of “raw germplasm resources” is not motivated so much by the benefits it would bring to developing countries but, rather, seen as an expression of corrective justice hard fought for and won in international arenas. The enclosure of germplasm resources is not the most effective international regime, but it is likely to continue to reign when more would have been gained for the global welfare if literally anyone interested in germplasm was allowed to collect germplasm and experiment with it to find out potential useful applications. The gene bank system and that of International Agricultural Research Centers (IARC), as it enveloped in the past, was based on the premise of free collection, use, and experimentation. Although that germplasm resources system was far from a perfect system, it had achieved much for the preservation of useful or rare seeds, the development of new cultivars, and the distribution of much needed genetic material to countries in need.

The current system of enclosure of “raw germplasm resources” and intellectual property rights over “worked resources” is a system that is based on the enforcement apparatus of domestic systems and their jurisdictional reach into other systems.

Countries that have enclosed “raw germplasm resources” must ensure that none of their indigenous natural resources cross their national borders without their consent. Countries that have enclosed “worked germplasm resources” must verify that patent rights on biotechnology inventions are respected in the developing world. The costs of third-party enforcement for the enclosure of germplasm resources and the protection of intellectual property rights could be potentially quite high. The costs of enforcement could be quite high because many developing countries do not have effective control over their territories and borders. Thus, potentially many people could infiltrate these countries who may wish to collect plants and seeds for further experimentation. The extensive piracy regarding many products produced in developed countries, especially software and various other technological devices, demonstrates that the enforcement of intellectual property rights in many countries with regard to biotechnology inventions is bound to be challenging.

It was hoped that the TRIPs agreement, as it is situated under the umbrella of an international organization, would be able to bring to the protection of intellectual property rights a new legitimacy in the developing world. Such legitimacy, however, has yet to be attained as the debate over intellectual property on pharmaceutical products has aptly demonstrated.

Freshwater Resources

With regard to freshwater resources that cross national frontiers, states have to come to a common agreement on how to apportion such resources. Equity concerns are paramount in the regime for the protection and allocation of freshwater sources. The 1997 UN conventional explicitly refers to equity. Many regional agreements have claimed that they constitute an attempt to share resources equitably. The meaning of equity within the regional fora where freshwater agreements have been concluded has varied. It is rare that equity means a fifty-fifty allocation of a resource.

Many times, states have decided to share their waters based on their respective needs. Other times, equity has meant negotiation on a bundle of resources. In that case, concessions with regard to a resource in the bundle are accompanied by the acquisition of advantages in another resource. One could clearly decipher, behind the equity discourse, that the needs of hegemonic states have held more weight in some cases. Sometimes, the distribution of resources reaches a Pareto optimal outcome in terms of the achievement of win-win situations. Other times, states that have heightened interests in the use of a resource are willing to provide other states what can be considered adequate compensation with the promise of renegotiation as the needs of states may change.

Because one of the purposes of law is to redress the imbalance between the powerful and the weak by searching for equitable results, the question is what equity has been translated to mean in the regional freshwater agreements. According to a dictionary definition, equity means that the rules of the game are observed: for instance, in the sense of a fair game, the rules of boxing are observed. A correct appreciation of equity in regional freshwater agreements would involve an in-depth understanding of the rules of the game as they are configured and reconfigured in a specific region. Such rules of the game are not included only in formal instruments. They have to do with implicit rules that have been formed, inter alia, by the use of effective power in a region. To assume, for instance, that each state in a region has the same say in the distribution of a resource is to assume a world not motivated by power, a hardly realistic assumption.

Regional agreements for the allocation and protection of freshwaters vary in the degree of effectiveness they have achieved for the development and protection of freshwater resources. Some agreements just serve minimum order purposes as they are basically there to ensure that conflict does not escalate out of control. Other agreements have been more substantive and actually have led to a balance in the development of a resource. Agreements among countries in developed regions have been more effective because these countries do have the financial means to engage in the sound management of a resource. Some agreements in developing regions have been effective in bringing in line the expectations of countries with regard to the future management of a resource.

Whether such agreements have been cost-effective is something that needs further examination. Again, as in the case of regional fisheries agreements, an evaluation of efficiency of regional arrangements would have to examine these arrangements in light of a competing proposition. Such a competing proposition does not seem to exist at this point. The international management of all freshwater resources that would involve the establishment of an international authority to deal with these resources seems to be out of the question for the time being. Given that freshwater resources lie within the jurisdiction of each state, such an international authority would be unlikely to develop. Even if such an international authority were developed, it would have to work through a number of regional cooperative arrangements so that management does not become chaotic. In the absence of a competitive proposition, regional management would be the way of the future. But regional arrangements would benefit from benchmarking studies that would demonstrate best practices and how these practices could be applied to different regions to enhance efficient and effective water management.

Regional freshwater agreements are generally in tune with the self-enforcing apparatus of international law. Regional agreements often establish a commission, the purpose of which is the interpretation of the agreement in terms of the allocation of benefits from water use – but the agreement does not remain static, evolving as time passes. The establishment of an institutional framework, which deals with dispute resolution and the future management of freshwaters at stake, frequently is considered more important than the achievement of water distribution at a specific point in time. Commissions have been granted extensive powers and, when granted such powers, have been able to play the role of final arbitrator in international water disputes. The success of commissions, however, has not been uniform. In some cases, commissions have languished because state parties to an agreement were reluctant to delegate to them power and authority.

Regional water management organized around a commission usually involves the centralization of many water services and water authorities that were previously diffused among different states and regions. Commissions usually are made up of scientists who specialize in water management. These scientists often bring their expertise in water management matters and have been able to use their expertise and hard data to diffuse the political nature of a dispute. Regional commissions equipped with information could become effective organs in the management of water resources in many regions.

Air

Transboundary Air Pollution

The global enclosure of the air has taken effect through a number of regulatory and market-based instruments.

Transboundary air pollution centers around the UN/ECE Convention on Transboundary Air Pollution. The regime involves the cooperation of similarly developed countries that have decided to work together to reduce the transboundary impacts of their discharges. This regime has become increasingly more stringent with regard to the emissions of certain pollutants and now regulates effectively a number of pollutants that are responsible for transboundary air pollution.

This regime has been perceived as effective in reducing emissions. Much needs to be accomplished, however, in terms of certain pollutants, such as Volatile Organic Compounds (VOCs) and Persistent Organic Pollutants (POPs). Typically, less developed countries in the region, are allowed to increase their emissions, whereas major polluters agree to reduce their emission discharges. The distributive effects of transboundary air pollution regime have not been challenged significantly by any of the participating countries.

The cost-effectiveness of the regime has to be examined thoroughly. The question is whether the regime would be less costly or more effective if, instead of command and-control technological requirements, it had made available to its members more of incentive-based instruments. Market-based instruments have been introduced in national fora with substantial gains in efficiency. The duplication of such instruments in international fora, therefore, seems to be desirable. Some market-based mechanisms have been incorporated in the transboundary air regime. But market-based instruments have yet to be developed internationally. There are no international markets for buying and selling emission credits. The complexity of creating such markets, given the regulatory and cultural disparities among states, would probably outweigh the expected efficiency gains at this point. But it should not be excluded in the future. The transboundary air pollution regime is highly regulatory, and participants in the regime need to investigate how to manipulate the regime to take advantage of the self-enforcing nature of international law.

Protection of Ozone Layer

The ozone regime started as a regulatory enclosure of the global commons. But it was soon realized that such an enclosure could not be implemented without the consent of all potential stakeholders. Unlike the enclosure of fisheries, where a number of states can create an exclusionary ownership regime, the enclosure of air was not amenable to exclusionary ownership. Ozone-depleting substances can destroy the ozone layer independent of whether they come from developed or developing countries. The enclosure of global commons of the air had to be inclusive. Such inclusion could be coercive or consensual. The treaties that make up the ozone regime have established a number of incentives, in terms of delayed targets and timetables and in terms of financial compensation, that facilitate compliance by developing states. At the same time, however, sticks in the form of trade sanctions and noncompliance remedies are available.

Theoretically, the ozone regime should be effective because those who have the most to gain from the reduction of ozone-depleting substances are willing to compensate those that are to lose in terms of forfeiting cheap industrialization made possible by ozone-depleting substances. Whether the compensation offered would be considered satisfactory so that countries would be willing, indeed, to forfeit cheap industrialization remains to be seen. The regime, in addition to compensation, provides for trade sanctions for the countries that refuse to comply. But restrictions, in terms of sanctions, are unlikely to be as successful because the smooth functioning of the regime is already threatened by the existence of black markets for ozone depleting substances

The regime has been considered effective in terms of actually achieving some of the recovery of the ozone layer. But the effectiveness of the regime still remains under question as now developing countries have to apply specific targets. Given the potential amount of ozone-depleting substances that could emitted by newly industrialized countries, the defection of developing countries from the regime could decidedly undermine the effectiveness of the regime.

Climate Change

The climate change regime is more complex than the ozone regime. There is some uncertainty about what climate change would involve and which countries it would adversely affect. Thus, although it could be presumed that most countries would prefer to remedy the ozone problem such presumption does not necessarily hold for climate change. Some countries/regions are to benefit from climate change, whereas others are to be losers. Furthermore, certain countries have come to contest the science behind climate change making the regulation of climate change even more complex and acrimonious. The enclosure of global commons of the air in terms of climate change control started with a framework convention and was firmed by the Kyoto Protocol. The Kyoto Protocol has established a number of mechanisms, such as joint implementation, emissions trading, and the Clean Development Mechanism, to induce cooperation.

Given the nature of air as global commons, an inclusionary property regime had to be established based on the coercion or consensual accord of all possible stakeholders. It remains to be seen whether the enclosure of the air, in terms of control of greenhouse gases, would become effective because major emitters, such as the United States, have refused to join in the regime, claiming that the scientific evidence behind climate change claims is faulty. Assuming that there are no enticements for the United States to participate and in the absence of a coercive mechanism against a global hegemony, the air could remain an open access resource for major CO2 emitters.

Thus, the regime would be ineffective because those who perceive themselves as winners cannot compensate or even entice a major emitter that has much to lose in terms of current growth by the drastic reduction of greenhouse gases. Demands for the proper allocation of costs of the enclosure of the air have been articulated by developing countries. Countries in the developing world – such as India and China, which are to become large CO 2 emitters – have refused to join in the regime. These countries claim that the benefits they would forfeit in terms of further industrialization by joining in the regime outweigh significantly any compensation that would be offered by developed countries. The implied demand behind these claims is that unless substantial compensatory measures – such as availability of cleaner state-of-the-art technology at subsidized cost – are to become available, developing countries are not to abandon the business as usual scenario for their industrialization.

The climate change regime has just entered into force. This means that the market-based mechanisms included in the Kyoto Protocol that provide schemes of joint implementation among developed countries and between developed and developing countries could become soon fully operational. Experimentation with such schemes has already started.146 The degree of participation of developed and developing countries in such schemes would determine whether regulation of greenhouse gases is to be achieved in a more cost-efficient way rather than by command and-control measures. The market-based mechanisms included in the Kyoto Protocol need a comprehensive and quite laborious administrative apparatus to function smoothly. The development of such a well-functioning administrative apparatus would present a challenge for international institution-making.

Seas

As mentioned earlier, the effectiveness of an enclosure depends on how inclusive it is. If all potential participants agree on the rationale for an enclosure and decide to limit their takings (or discharges), then enclosure would be an effective means of managing the global commons. Another solution, the one most frequently encountered in practice, is to opt for the enclosure of a resource by a limited number of participants.

The other potential stakeholders would then be bought off (compensation or side payments) or be coerced to compliance. The marine pollution regime is based on the rationale of inclusiveness. With regard to sea dumping and pollution from ships, states have striven to develop regimes in which the majority of polluting countries would participate. Although participation seems to be satisfactory in terms of numbers, it is still lacking in terms of substance. Many countries, for instance, fail to report on the amount of hazardous substances they dump in the seas. The regime on the control of pollution from ships seems to be more successful because it is based on construction standards. There is speculation, however, that many illegal discharges still happen in the high seas.

The enclosure of the seas in terms of discharges from land-based sources has been the most challenging because there are so many sources of pollution. Countries that surround specific areas of the seas have usually entered into agreements to control pollution, but such regimes have been largely ineffectual given the nature of the problem involved. As a result, many land-based sources of pollution treat the seas as an open-access area. Because pollution from land-based sources constitutes the bulk of sea pollution, the seas, in terms of pollution control, have remained open-access areas.

The regime for the control of marine pollution has not been challenged significantly in terms of its distributive outcomes. Both developed and developing countries have been laggards with regard to restricting the number of substances they introduce into the seas as the regime for the control of land-based sources of pollution has demonstrated. At the same time, most developing countries are not considered to be significant polluters of the seas, as their level of industrialization is quite low.

The regime for the prevention of marine pollution acquired new steam after the 1992 Rio Conference. Many of the conventions for the protection of the seas have been revamped to include more explicit regulatory requirements. Some progress has been made in the certain regions of the developed world, as the Rhine River regime and the Danube River regime have demonstrated. These regimes have included a number of decisive measures to control the harmful substances that enter into the rivers and, consequently, into the seas. Overall, however, despite the number and increasingly stringent character of international conventions, not much has been accomplished in practice for the control of entry of pollutants in the seas. Therefore, one could claim that the regime has been lacking in effectiveness, as states have not seen marine pollution as a problem of such an international magnitude that would allow for the devotion of credible resources for its implementation.

Waste Management

For international waste transfers, the notion of equity has been translated to mean self-sufficiency. At the core of the waste regime is the achievement for every country of self-sufficiency in waste management. Equity as self-sufficiency dictates that states need to become self-reliant in the management of their environmental externalities so that they do not impose such externalities on other states. Behind this notion of equity as self-sufficiency lurks the belief that, unless self-sufficiency is imposed, the more powerful states would let their environmental externalities be borne by weaker states. Self-sufficiency attempts an ex ante distribution of externalities rather than an ex post facto correction of such externalities. Notions of self-sufficiency echo notions of equity as capability. Those responsible/capable of producing pollution must bear the externalities of polluting events.

There is a competing notion of equity, with regard to the waste issue, that has do with an appreciation of the fact that waste generation is a matter of common responsibility. All countries generate some waste. Requiring each country to become self-sufficient in all types of waste treatment and disposal seems to negate the notion of corrective equity, frequently expressed as solidarity. Furthermore, self-sufficiency undermines the function of international law as a device that cultivates cooperation among states. Corrective equity (or solidarity) has taken many forms in international law– such as assistance to countries with less capacity and resources and humanitarian intervention. Expressions of solidarity are not that infrequent in international arenas as, for instance, when countries send assistance to states hit by disasters.

The pursuit of self-sufficiency undermines cooperative behavior in international law that is so much needed in tackling issues of common concern. Self-sufficiency could threaten minimum order as it tends to promote isolationism. Notions of self-sufficiency in waste management could lead to ineffective and inefficient waste management decisions.

Furthermore, most international law, and especially international trade law, is based on the assumption that countries cannot be self-sufficient in everything. This is why it makes sense to trade with other countries. If waste could be reconceptualized as another good that states are willing to trade among themselves, the transnational management of wastes, based on the principle of sound waste management, could become a reality.

Wastes have acquired a bad name because they are by-products of industrial and household activity. Industries and households generate waste, but none of those responsible for waste generation is eager to shoulder the externalities of waste production. Altering notions of self-sufficiency with regard to waste management would require a change in assumptions about waste usability. Redefining wastes as potential sources for other material and energy production would be important in changing such perceptions.

The waste regime has been influenced by equity considerations with regard to who should be responsible for waste management and transfers and, thus, how to distribute the costs of an externality called waste. In an attempt to find an equitable solution, countries have enacted complex regulatory apparatuses. The international system for the control of waste movements, which has been replicated in regional fora (e.g., the EC context), is similarly quite burdensome. The implementation of an international waste control system has encountered difficulties. Waste generators have bypassed regulation by finding refuge in illegal markets. A stringent regulatory apparatus accompanied with the lack of credible enforcement demonstrates that, despite all rhetoric, states have not appreciated waste trade as a priority issue the way they have evaluated other matters, for instance, the control of trade in weapons of mass destruction.

National Biodiversity Resources

In principle, biodiversity resources are under the jurisdiction of a state. States often have asserted ownership over natural resources located within national borders. Thus, usually, resources not privately owned are likely to be government owned. Common property regimes, as a spontaneous development, have ceased to exist in most countries, whereas some countries are now experimenting with induced common property institutions, such as the CAMPFIRE program. States have been eager, otherwise, to state that they are effective sovereigns over their national resources. Given that states have been quite zealous in asserting sovereignty over their natural resources, an international enclosure of national commons does not seem to have much of a chance for success. An international enclosure of national commons would mean that governments have nominal control over their biodiversity resources and that the actual control is effectuated by states or other constituencies who have the power, will, and economic resources to play a decisive role in the management of natural resources of other states.

Government jurisdiction and control over national biodiversity resources have not always been effective. This is particularly the case in developing countries, where many governments may not have the capacity to monitor effectively the use of their resources that end up becoming open-access resources. Therefore, certain states and a number of environmental constituencies have made a conscious attempt to internationalize the management of certain national biodiversity resources. Internationalization of the protection of biodiversity resources has been attempted more or less successfully in different international fora. Some international instruments mention that biodiversity is the common concern of the global community.

There are instruments on the protection of specific habitats, species, species trade, and debt-for-nature swaps. Through these instruments, a number of states and environmental constituencies have been able to dictate management decisions in the developing world. The enclosure of biodiversity resources at the global level has been made possible through the enactment of various instruments that suggest management methods for national biodiversity resources by mandating, for instance, the establishment of protected areas and restrictions on the trade in endangered species. Some of these suggestions have been incorporated into the policies of certain developing countries under the presumption that eco development will bring more benefits than traditional development.

The international enclosure of biodiversity has been creeping into national systems under the name of effectiveness. It is assumed that if the international community intervenes in the management of national biodiversity resources of certain states such management would become more effective. International governance structures, it is assumed, more objectively gauge the benefits and costs of conservation of biodiversity resources. Governments, by contrast, are likely to be sidetracked by various short-term problems of economic development and are to neglect the preservation of resources.

The enclosure, however, has not been complete, as it has encountered resistance in developing countries. Developing countries have maintained an ambivalent attitude with regard to the internationalization of their resources. In terms of financial assistance, when the benefits are plentiful, enclosure is tolerated. But when the benefits are meager, enclosure is resisted. If those wishing to preserve biodiversity resources are able to provide satisfactory compensation to those who are willing to forfeit benefits from resource exploitation at the right price, international enclosure is successfully effectuated. In all other cases, internationalization is resisted. In terms of effectiveness, it is hard to claim that international enclosure has worked. Despite the number of international instruments adopted and stringent measures, including trade restrictions and prohibitions, many resources remain degraded. This is because international managers (as they spring from the bureaucracy of international organizations or NGOs) do not really have the insight to substitute local knowledgeable managers.

Expertise in environmental matters cannot substitute knowledge about local conditions. Environmental management decisions require some sensitivity to the social and economic conditions of local populations. Sometimes, international bureaucracies could become impervious to such concerns. Pronouncements of international institutions on the management of local resources are frequently conceived as out of touch with the realities that developing countries face. The decision to ban the trade in ivory was viewed as damaging to local management programs for endangered species and, thus, inequitable. Pressure to create international instruments for the protection of tropical forests have been perceived as one-sided (and by some as disguised trade restrictions) if similar protection measures are not to be placed on temperate forests. It is generally perceived as inequitable that some countries should bear the costs of resources preservation, whereas other countries were not (or are not) inhibited by similar concerns in their development.

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(8) Environmental Law

Law of Treaties Section D:Legal aspects of iInvalidity, termination and suspension

ENVIRONMENTAL LAW - UNEP

IEL

Foundations of International Environmental Law

REGULATION OF NATURAL RESOURCES

The foundations of international environmental law are the pursuit of a minimum order and sound environmental management through the satisfaction of perception of equitable outcomes. The pursuit of these goals gives international environmental law its meaning. Without the maintenance of peace, one could not even begin to discuss an international legal order. Most international environmental issues involve the management of common resources – basically, an allocative enterprise.

Environmental issues are common pool resource issues. The tragedy associated with the use of common property resources is all well known in environmental resource management. As Hardin explained, the problem with common property resources is the inability to exclude others from the use of the resource. Because all users of a common property resource are wealth maximizers, they try to get as much of the resource in an effort to outperform other users. As everybody maximizes their takings, the resource eventually collapses. Common property issues can be articulated as “taking out” problems (e.g., deforestation, fishing) or “putting in” problems (any form of pollution). The rationale of a polluter is the same as that of an extractor.

Because each individual polluter and resource extractor are wealth maximizers, in the minds of each of these individual wealth maximizers the costs of the sustainable management of a resource or the costs of avoiding pollution would always outweigh the benefits. Environmental management becomes, thus, a collective action problem.

That is, even if an individual polluter or extractor takes measures to diminish his/her impact on a resource, others would continue to behave as profit maximizers, leading sooner or later to the collapse of the resource.

The remedy for such common property problems is government control or private property. As Hardin expounded, taxes and property rights are examples of coercive means to escape the tragedy of commons. He admitted that taxes or private property are generally not perceived as equitable solutions. But he believed that they are “necessary evils” for the avoidance of destruction of resources. Some commentators have elaborated on the tragedy of commons described by Hardin and have refined some elements of his account. Commentators have tried to distinguish between the nature of a resource and the system of governance of a resource. The existence of commons does not necessarily presuppose a common property system. The commons could be open-access resources, they could be under private entitlements, or they could be government property. Therefore, in order to separate the nature of a resource from the system of governance of a resource, it is more appropriate to use the term “common pool resources.”

Common pool resources are resources that could be accessed by all. Access to the resources by some, however, subtracts from the utility of resources to subsequent users. In this respect, common pool resources are distinguished from public goods. For public goods, access by some users does not subtract from the enjoyment of future users. Air quantity, for instance, could be conceived as a public good because it is not subject to subtractibility. By contrast, air quality is a common pool resource because the pollution of air by some users would subtract from the enjoyment of other users.

Common pool problems are essentially collective action problems. Collective action problems in the management of common pool resources involve distributive decisions in terms of deciding Who is to be included in the management of a resource (and thus, who is to be excluded); How to distribute the benefits to those included; and How to compensate the excluded.

Environmental decision making has to do with the distribution of common pool resources. The question for decision makers is often how to distribute the use of natural resources or how to distribute the burden of an externality caused by the use of a resource.

International environmental problems dealt with in this study are common pool problems. Air quality, the high seas, and high-seas fisheries are, by definition, common pool resources because they constitute global resources that could be accessed by everyone. The use of these resources by some would subtract from the use of others. Other problems have become common pool problems because of the lack of effective jurisdictional control. Such problems include biodiversity, plant genetic resources, and freshwater sources.

Air quality is a common pool resource because the pollution of the air by some affects the utility of the air for others. The high seas are also a common pool resource because the pollution of waters by some would disadvantage the use by others. High sea fisheries are common pool resources because the depletion of fisheries by a state would affect other states that wish to fish in the high seas. Freshwater resources, such as lakes and rivers, are common pool resources among the states in a region that share those resources. Subtracting too much water by one state could affect the availability of water in another state.

One must qualify, however, that freshwater sources do not necessarily have to present the problematic of common pool systems, given that states have the power to exclude other states from the use of a resource (especially upstream states versus downstream states). States that have “physical” jurisdictional control over a resource should, in principle, have the power to exclude others from the use of the resource.

The question is whether they are willing and capable to use that power (which depends on the power configuration in a region and their general level of enforcement capacity).

Many river basin systems today could be characterized as common pool resources. These resources are shared by states that are the common “owners,” users of the resource because they share jurisdictional control over the resource. States often use these resources as if they are the only beneficiary, and rapacious use by many users has led to the degradation of many regional river basin systems.

Terrestrial biodiversity resources do not seem to be common pool resources as biodiversity resources are under the jurisdiction and thus, one would assume, control of states. Usually, however, the assumption that control follows jurisdictional assertion is wrong. As a matter of fact, states are not always in control of their biodiversity resources, and the lack of effective control transforms such resources to open access resources. As time has gone by, however, the vise of state control over national biodiversity resources has become tighter.

Wastes are not prima facie common pool resources. Actually, one could hesitate to call waste a resource. Because wastes are materials of generally perceived low or zero value, they are frequently disposed haphazardly and generators, transporters, and disposers are eager to get rid of them in a legal or an illegal fashion. For those who generate waste, waste is an externality, and they would be content if they could shift such externality to the rest of the society.

States have chosen to deal with waste, which is basically the by-product of industrial or household activity, under “you generate it you own it” mantra. This is a forced enclosure of a negatively valued resource. Without this forced enclosure, waste could lie in exposed landfill areas without safeguards on the disposal or further use, becoming in effect an open-access negative resource. The situation of abandoned landfills in developed countries is well known. This situation resulted from the lack of regulatory controls with regard to the ownership of disposed wastes.

Private corporations have been pushed to take responsibility over the waste they produce and transfer under the assumption that a conscious undertaking of responsibility would lead to sounder disposal practices and waste reduction. States have adopted the principle of self-sufficiency, namely, that each country should become self-sufficient in waste management. The purpose of the self-sufficiency principle is to enclose wastes within national borders, thus preventing the infliction of externalities from the transfer and disposal of such wastes on third states and on the global commons. The side effect of this forced enclosure has been the development of a black market in the transfers of hazardous and radioactive wastes.

ENCLOSURE OF NATIONAL COMMONS

Various systems have been devised for the management of common pool resources: common property, government ownership, and private ownership. Commentators document the evolution in the management of common pool resources as follows. First, common pool resources are under a common property system. The system involves a small number of individuals or, more commonly, households that make use of a resource. These households are familiar with each other, and thus are able to monitor each other’s uses and avoid excess in the use of a resource. After all, it is in their interest to prevent resource collapse.

With a change in population dynamics, new users make claims on the resource. Prior users, the first claimants, are unable to assert their rights over the new users and the resource becomes a de facto open access resource. Then the state intervenes to prevent the collapse of the resource and appropriates the resource under a rationale that state ownership would improve management. Now users have to pay fees for use. Users that cannot afford the fees are excluded. Oftentimes, however, governments fail to maintain proper control over resources and an open access phenomenon may ensue again. A last resort option, therefore, is to develop private ownership rights or rights of use, such as quotas.

The evolution in the management of common pool resources does not have to lead fatalistically to the collapse of the resource or private property or government control. Common property resource systems can work when sincere efforts are made to restrict the number of users. After all, corporations and share contracts, as well as other modern forms of ownership today, are in essence common property systems.

Some preconditions for the development of common property include:

• A limited number of users;

• A community of users;

• Clearly defined boundaries of a resource;

• Monitoring of use;

• Ability to exclude outsiders;

• Graduated sanctions for violations;

• Minimal recognition of the rights to self-organization;

• A common understanding about the uses of a resource; and

• Good information about the resource and its potential.

Common ownership resource systems regained popularity when it was realized that private property did not remedy many of the problems encountered in the developing world with regard to the use of common pool resources. Exclusionary property rights regimes do not provide answers about what to do with the “outsiders.” These are the people who live at the fringes of common pool resources and find themselves on the onset of privatization, totally excluded from the resource.

Common property resource systems also attracted attention because states were unable to assert effective control over common pool resources. Problems with regard to the protection of biological diversity have been attributed to states that as apathetic spectators or instigators have allowed the decimation of natural resources. The situation is more acute in developing countries, where it is assumed that corrupt officials let companies do anything for the right price. Sometimes, the right price would dictate support for logging/fisheries operations engaging in over harvesting.

Other times, the right price would involve the preservation of protected areas for ecotourism projects. Community resource management systems have been developed for the management of biodiversity resources. CAMPFIRE is a well-known such system that has been marred by a variety of problems. An ideal Community-Based Natural Resources Management (CBNRM) system would involve: collective action defined as an action taken by a group as a whole in defense of its shared interests; an enabling environment that is legislation and an institutional structure in support of the devolution of power to the local community; property rights and /or user rights (access to resource, withdrawal (e.g., rights to take fish, plants); and control rights (including exclusion, alienation and management)). Furthermore, user groups would need access to financing and skills and linkages to other groups.

CBNRM is more appropriate for small-scale resources because its enforcement – and, thus, its success – is based largely on the ability of users to observe each other’s behavior. Extraction activities are more easily monitored by the users of a resource. By contrast, emissions/discharges of polluting substances into the environment are not that easily monitored and, thus, are not subjected frequently to CBNRM.

CBNRM systems are tailored better to the management of complex resources, such as wildlife. A fundamental problem with all CBNRM systems is that they are closed systems. Extensive commercialization of a resource could undermine these systems. Supporting such systems would involve shielding them from outside commercial pressures – a difficult-to-meet requirement in today’s globalized economies.

Despite the renewed attention paid to common management resource systems, efforts to privatize common pool resources have not relented. Flexible privatization systems with regard to the management of fisheries and air pollution have had some degree of success in developed countries. Such systems start with the establishment of a level of maximum allowable pollution or a total allowable catch (TAC) (e.g., for fisheries). Permits are assigned to users of a resource (air, fisheries) that define their quotas of allowable pollution or catch (called individual transferable permits – ITPs or individual transferable quotas – ITQs). Rules for permit trading among users are established so that those who under use their quotas could sell them to others unable to limit their emissions or catches to their initially assigned rights.

Individual Transferable Quota (ITQs) systems could be applied to larger-scale resources than those appropriate for CBNRM systems. The function of ITQs is based on trade and trading needs large markets to operate. For instance, ITQs have been successful for the management of long-range pollutants, such as sulphur dioxide, but are less successful for localized pollution. In the area of resource management, ITQs have been successful in certain areas in managing fisheries that usually straddle national or sub national frontiers. One disadvantage of ITQ systems is that they are less responsive to complex situations that may demand a reexamination of the assumptions on which they were established. ITQs systems must be able to give quota holders a reasonable amount of security that the system would continue as established, at least for the foreseeable future. Without such an implicit guarantee, not many potential buyers would be willing to purchase quotas.

The operational logistics of ITQs systems present an amount of complexity that may limit their application in the international arena. They also may be perceived as inequitable. The initial allocation of quotas in these systems usually is based on historical rights. These rights could very well be contested later by potential new entrants who believe that they have legitimate claims to access a resource.

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(7) Environmental Law

International Environmental Law Section D: Particular subjects II

Environmental Law

IEL

Foundations of International Environmental Law

FOUNDATIONS

Law has been defined as an institution of status quo preservation but also as a means for social change. The question to be answered here is what the foundations of international environmental law are that would enable it to alternate between these two functions. The issue that needs to be examined involves the foundational purposes that, if absent, would deprive international environmental law of meaning as such law.

Dictionary definitions are useful in stripping down a concept to its basic meaning. Dictionaries define “foundations” as the fundamental principle on which something is founded, the basis. Dictionaries also define “foundations” as that on which an idea or belief rests. International environmental law was initially conceived as an institution that would establish rules for the management of environmental problems that started to become all too obvious in the late 1970s. In dealing with these problems, states gradually discovered that they are not amenable to easy solutions. It was quickly apprehended that environmental issues are complex issues and that the best way to address them is to:

  • Define them in the midst of scientific uncertainty;
  • Devise management solutions that are not too costly; and
  • Deal with the distributive issues involved.

The pursuit of effectiveness and the pursuit of equity are the foundational purposes of international law. Effectiveness can be broken down into two pursuits: the pursuit of minimum order (the preservation of peace) and the pursuit of maximum order (the successful management of environmental issues). Equity is understood as an element of law that constitutes also the normative direction of law.

Notions of cost-effectiveness have not been paramount in international law. The development of an accountable and responsive international system has acquired precedence over an efficient one. As underlined earlier, many commentators have criticized the international system for waste of resources on what seems to be a redundant administrative structure. What may seem as an inefficient overlapping structure, however, may be, in effect, an efficient way to diffuse tension and conflict in international arenas.

Although international instruments rarely pretend to be cost-effective instruments, cost-effectiveness is examined here for the purposes of adding to the depth of understanding of international environmental issues. After all, it would be hard to characterize an excessively wasteful system as effective.

Furthermore, effectiveness and equity are not clearly separable. Usually, an effective resolution of an issue would entail satisfactory distributive outcomes. Equity perceptions could assist in achieving effectiveness and in maintaining effective outcomes.

Minimum Order

The primary function of law is to maintain a minimum public order. This minimum public order involves the maintenance of peace and the creation of rules that would increase the predictability and certainty of transactional outcomes. These rules often tend to be procedural. Basic rules of law that make possible a minimum order include: pacta sunt servanta, due process (or treat like cases alike), publication of laws in force, and consistency in the articulation and administration of international norms.

Some authors have taken the existence of a minimum public order even further and have defined it as the existence of an organized government operating through legal instruments of command. In this sense, all societies, in which some form of government is based on rules, are minimum-order societies (independent of whether this government is liberal, socialist, democratic, or despotic). A minimum order is one in which there is a hierarchy of command, rules are implemented consistently and predictably, and coercive instruments are used against those who violate the rules.

A minimum order, thus, would not necessarily entail the support of human rights but only in the fundamental sense of avoiding excessive cases of inconsistency in the administration of justice. Taking human life may be allowed, for instance, exclusively by the state apparatus as long as some procedural safeguards exist that do not threaten the existence of the minimum order and those who support it. For instance, for a common type of offense a defendant may be afforded a defense in front of a semi-independent body and be given a sentence corresponding to a violation of a rule of law published in advance. For offenses designed to undermine the established order, the predictability of a serious punishment would almost always be equally fulfilled. A minimum order is not a state of terror in which people resolve to obey because they are constantly coerced to do so. It is not a maximum order either, however, in the sense that the individual is respected. A minimum order contains rules that guide the everyday life with a considerable amount of predictability. These rules do not necessarily have to be conceived as fair or as directed towards equitable outcomes.

But they have to be conceived as a fair game in the sense that if someone chooses to follow the rules, they would expect predictable outcomes and, in general, a normal life under the rules of the game as they have been defined. Such a minimum order is often referred to in international law as peace, which is the absence of war among states. Peace does not presuppose justice but is, in essence, the absence of a Hobbesian state of affairs of perpetual and irresolvableconflict. International law is based on a number of devices the purpose of which is the maintenance of peace: such as diplomacy and various more or less formal networks and organizations. The purpose of these formal and informal networks and organizations is to diffuse tension and avert war.

International environmental law, as “a branch” of international law, has similarly as its purpose the maintenance of peace among states with regard to the management of global commons. International environmental law shares the same discursive apparatus with international law, namely, diplomacy and various formal or informal organizations and networks. New organizations have been created to deal specifically with environmental problems. Such apparatus enables international law to control environmental conflict.

The fundamental purpose of international law is the maintenance of peace. Law and the maintenance of peace are, in some way, tautological expressions of the same phenomenon. Peace cannot exist without some rule of law and law cannot further develop unless peace preexists. Behind this seeming peace, though, strife is often prevalent as rivaling consistencies are battling to change the established order but there is no conflict in the sense of war of all against all. An order penetrated by law has to cultivate perceptions that “things are under control.”

Commentator’s uninitiated to international law is often taken aback by assertions of international lawyers about the effectiveness of international regimes. International lawyers often pronounce international environmental regimes effective independent of whether they have been effective at resolving the environmental problem at hand. It is enough that they manage to bring states to the table to discuss and attempt to resolve an issue. For those who would like to see an environmental problem resolved, regimes that just manage to bring parties to the negotiating table are perceived as merely preparatory and not of high relevance. From a maintenance of the minimum-order perspective, however, the first and foremost goal of any legal order, these regimes are quite successful in that they have averted conflict and have managed to bring parties together to pursue common outcomes. This may seem a meager objective to those who would have liked to see environmental problems banished. Given the experience of two world wars, however, and the constant friction in many regions of the world over the allocation of natural resources, achieving a common ground from which collaborative efforts could be launched is by no means a negligible accomplishment.

Equity

States are not equal in real terms. States possess different degrees of power and resources. The “elite of states” is often able to induce concessions from other states. Sometimes this elite is aggressive and rapacious but – because it is too costly to rule the world by using terror – elites often make concessions inmatters that would not jeopardize their fundamental interests. Elites are powerful but they are not omnipotent. Unless they judiciously use their power, they could be toppled.

A substantive concept of equity may involve the pursuit of various and mutually exclusive objectives. Equity could be conceived as: Distributive equity.

Distributive equity involves the pursuit of equality through equal distribution of power and resources according to a socialist ideal or a pursuit of a paradigm in which those who win in a transaction are willing to provide satisfactory compensation to losers;

Survival of the fittest in various articulations of meritocracy, ability or capability rewarding systems. This idea of equity has not much to do with equality but starts with the assumption that people are unequal and, thus, rewards would have to match the level of merit, ability, and capacity; and

Corrective equity: correct the imbalance in the existence of power by providing assistance to the weaker members of society and those in need. Corrective equity is a sort of redistributive equity with the goal of addressing past inequalities. In this respect, equity may be dedicated to the pursuit of the reduction of the gap between the rich (powerful) and the poor (weak). Such notion of equity emanates from notions of solidarity among humans. In this case, equity has not much to do with the achievement of an ideal level of equality, where all people would be equally powerful and wealthy, but with the reduction of inequalities – most people achieving a minimum standard of living (food, shelter, and education). In addition to these conceptualizations of equity, other versions include what could be called punitive equity, the tit-for-tat approach, or procedural equity – the right process. Examples of right process include elements that define a minimum order, such as pacta sunt servanda and due process.

The notion of equity has found articulation in various areas of law and is expressed in multiple concepts, such as that of unjust enrichment (that one should not obtain unfair enrichment at the expense of others) and of estoppel or good faith and in instruments of resource allocation.41 In general, equity has been used by courts to mitigate the effects of stringently implemented rules of law.

International law is rife with examples where the concept of equity has been used in legal instruments to achieve corrective and distributive outcomes. Corrective equity is often articulated in agreements that give preferential treatment to developing countries to correct imbalances that come from the fact that they are weaker members of the international community. Trade agreements, such as the Lom´e Treaty, that grant preferential treatment to developing countries could be classified under this category.

Equity, as it has been articulated in international rules of water allocation, biodiversity protection, and sea-bed mining has more of a distributive than a corrective overtone. The idea here is to establish ex ante some equitable distributive outcomes so that correction does not become necessary. Principles of equity also are mentioned in the United Nations Law of the Sea Convention (UNCLOS) with regard to the delimitation of the EEZ and by courts in the delimitation of the continental shelf.

No matter the substantive content of equity, it must be understood within the framework of the power balance in a region or in the world. Equity is not something that can be accomplished in a vacuum. Equitable outcomes that do not subvert the existing order, to become operational, must be accepted by the powerful and be satisfactory to the weak.

For equity to be executed within an established order to achieve results, it must function within the rules of the game understood as the aggregate of formal and informal rules that regulate conduct in a society. Such formal - and particularly informal - rules have to do with the power configuration in the international society.

The international system has acknowledged power but also has tried to constrain it through concepts such as equity. The international system has attempted to deal with distributive issues through resource transfer, knowledge transfer, and financial assistance to developing countries. International environmental issues are essentially distributional issues. International environmental law is an institution that has been used to arbitrate resource use and appropriation problems.

A common view of international environmental law is as a device to manage or, for optimists, to resolve environmental problems. As the law has evolved from Stockholm to the WSSD, however, distributional concerns are becoming more vocal. Distributional issues have been always implicit in international environmental instruments.

The WSSD brought distributional issues to the limelight as it specifically addressed problems pertinent to developing countries, such as poverty, sanitation, disease, and lack of drinking water. These are not “the-run-of-the-mill” environmental problems as perceived from a developed country perspective (e.g., ozone depletion, climate change, and endangered species protection). These are clear-cut problems that face developing countries. Since the late 1980s, developing countries have attempted to usurp the environmental arena and use it as a forum to present environmental problems as essentially development problems – a classic case of forum shopping. Development problems have failed to capture the attention of developed countries and are addressed frequently with meager handouts. Issues of poverty make headlines but frequently are met with donor fatigue.

The second generation of human rights, such the right to food, shelter, education, and a minimum standard of living, was an attempt to use human rights language to bring the concerns of the developing world to the forefront of the international agenda. The effort was a mixed success, as some developed countries still view rights as negative expressions of liberty that involve the abstention of state from the realm of individual freedom. Positive rights in terms of entitlements to a standard of living have not obtained the recognition that they deserve. The right to development, albeit positioned by developing countries as entitlement to wealth and prosperity, has not been recognized to the extent that would allow for its materialization.

Because development issues have not acquired much attention in international fora, developing countries attempted to use the area of environmental protection, as the new forum, to bring their claims. The cooperation of developing countries in the management of environmental issues has been considered essential. Most revered forest resources are located in developing countries. The destruction of ozone and climate change cannot be addressed without the assistance of developing countries that, because of increasing industrialization, are bound to emit most pollutants in the future. Developing countries made clear that without significant additional financial resources they should not be counted on to participate in international environmental agreements. It was a basic distributional reticence.

Environmental protection has been used as the subterfuge to bring distributive issues in the international debate. A successful rearticulation of a distributional issue as an environmental issue has been encapsulated in the notion of sustainable development.

Sustainable development, for most developing countries, is a rearticulation of the right to development in “eco-speak.” This rearticulation has been successful. Only one of the three pillars of sustainable development is devoted to the environment. The others have to do with social and economic development. Other articulations, such as common but differentiated responsibilities and additional financial assistance, have taken root. In the WSSD, developing countries have taken the bold step to redefine development issues as environmental issues. Forum shifting has worked for some developing countries that have been able to extract additional resources from the developed world for the advancement of sustainable development or biodiversity protection.

Effectiveness as Equity

The purpose of rules of law is to serve order and justice. Rules of law are concocted to address issues as they emerge from social, technological, and other changes. Recently,rules of law have been developed to address the Internet and information technology, cloning, and biotechnology.

Environmental laws have been developed to deal with environmental problems. Environmental problems are understood as problems brought by industrialization that has led to the despoilment of environment in terms of diminishing air quality, water quality, and biodiversity resources. Some of the first instruments that were enacted to address environmental problems set as a goal zero pollution. Soon it was realized, however, that zero pollution was not a feasible goal for managing a phenomenon-companion to industrialization. Thus, even if statutory goals were set on zero pollution, reality involved the management and reduction of environmental problems. Because environmental legislation has been adopted to deal with environmental problems, it is not surprising that when such legislation is appraised from the perspective of effectiveness, it is judged based on whether it has managed the environmental problem with some measure of success.

For international environmental legislation to be called effective, it must meet two preconditions. First, it must establish a minimum order (convince states that cooperative solutions are better than conflict). Second, it must address successfully the distributional issues. Only after it addresses minimum-order and distributive issues with some success could it be claimed that the legislation has begun to address the environmental problem effectively.

Environmental issues are not high-conflict issues in the way that other issues could be, for instance, issues of nuclear proliferation, terrorism, or the possession of chemical weapons. Even in areas in which one would expect high conflict; such conflict has yet to materialize.

States have been willing to enter into agreements to protect the global commons, especially as these agreements are usually vague and nonstandard setting. Thus, one could claim that the first goal of international environmental law – that is, the maintenance of a minimum order - is usually within the reach of states.

Resource allocation issues are more difficult issues to resolve. Distributive issues are thorny for any legal system because they have to do with perceptions of fairness. Even if there is a consensus on how the appropriate allocation may be executed, parties may have difficulty in getting from words to deeds. The water management regime and the plant genetic resources regime are regimes in which the equitable distribution of resources has baffled policy makers. Other times, the quest for equity may present corrective overtones. For instance, in the ozone regime there has been agreement that financial assistance is necessary to induce cooperation from developing countries.

International environmental instruments work through commands or incentives. Environmental instruments usually prescribe how much pollution is to be emitted and by whom (e.g., developed countries, developing countries, economies in transition) or which fisheries and by whom are to be exploited (e.g., coastal states, distant water fishing states). These are by nature sensitive allocation decisions thatcould create disaffection and turmoil in societies.

For environmental instruments to be effective, they must be perceived as resulting in:

  1. Win-win (or Pareto optimal) situations; or Situations in which losers would be compensated whereas winners would still remain better off (Kaldor-Hicks optimal situations).
  2. Environmental instruments are unlikely to manage in an effective consensual fashion the environmental problem at hand unless they are appreciated as fair. Unless the losing constituency is compensated for concessions it makes, it is likely that it will sabotage solutions that would disadvantage it.

Understanding effectiveness as the pursuit of optimal outcomes presents effectiveness as a global welfare maximizing decision based on assessing the global social benefits versus the total social costs. Thus, efficiency concerns, in terms of societal welfare maximization, are brought to bear on the evaluation of effectiveness outcomes. Furthermore, a pursuit of a global wealth maximizing decision has in it distributive elements, at least, in terms of compensation of those who are to lose the most from the welfare maximizing outcome.

Fair distributive outcomes, for instance, are considered achieved in some international fora when certain instruments, such as those that focus on climate change and ozone protection, pursue pollution reduction, thus maximizing global social welfare while, at the same time, addressing justice concerns by compensating countries for which pollution reduction would be too costly. If that compensation is deemed to be sufficient (something that is still not clear in the ozone protection and climate change regimes), distributive justice from a Kaldor-Hicks optimality perspective would be achieved. Thus, a global wealth-maximizing outcome would be viewed simultaneously as an equitable outcome.

Assuming that Pareto optimal and Kaldor-Hicks outcomes are not attainable (and commentators agree that Pareto and Kaldor-Hicks outcomes rarely can be achieved), only coercive enforcement could convince the losers to comply. Governments are not eager to oblige with such enforcement, however, either for lack of will (unwillingness to offend other states) or way (lack of resources). Resistance from a losing constituency, combined with the lack of an effective and willful enforcement, is the reason why environmental legislation has not been implemented effectively on the ground.

The issue of enforcement is particularly sensitive in international law. This is because international law lacks an organized enforcement apparatus that would apprehend offenders and deliver punishment. As many commentators have lamented, the international system lacks an organized international police force. The international world is comprised of states that are the makers and enforcers of law. States generally are unwilling to pursue and demand of other states to obey the law, unless their vital interests are at stake.

 “A Pareto-superior transaction is one that makes at least one person in the world better off and no one worse off.” According to the Kaldor-Hicks principle of optimality, a change is identified as wealth maximizing if those who gain from the change could, in principle, compensate the losers and still be better off.

This unwillingness to pursue enforcement actions is due also to the origins of international law. International law was established as an institution to bring peace among belligerent states. If states were to pursue the enforcement of environmental law to the point of committing acts of aggression against other states (that could culminate from trade sanctions to reprisals), one of the fundamental pillars of international law – that is the maintenance of peace – would cease to exist and international law would begin to look incoherent. Because the fundamental purpose of international law is the maintenance of peace, environmental issues are usually not allowed to escalate to open confrontation and many environmental transgressions are tolerated, forgiven, or are traded off.

Cost-Effectiveness

The Self-Enforcing Character of International Law

Scholars who have studied the effectiveness of international regimes have expressed doubts that such regimes can be examined from the point of view of cost effectiveness. International law has been so overwhelmed with problems of minimum order and equity that dealing with the issue of achievement of benefits with the least cost appears to be overambitious.

Having said that, one should not assume that efficiency concerns are outside the ambit of international law. Efficiency concerns are, in fact, part of the rationale in decision-making in international law. This is because of the reliance of international law on self-enforcing rather than coercive mechanisms. Reliance on self enforcement may create other administrative costs, but it could be justified for the purposes of equity. In international environmental law, in general, efficiency decisions cannot be neatly separated from equity considerations.

Efficiency is viewed, generally speaking, as a concept that guides decision making so that the costs of an elected outcome are not higher than the benefits. If the costs are higher than the benefits, the outcome would be considered inefficient. Usually, various solutions with different cost/benefit articulations are compared with one another to determine which solution produces the most benefits with the least cost. In the pursuit of efficiency, an assumption is made that instruments that give parties incentives to comply would generally be more efficient than instruments based on third-party enforcement. Third-party enforcement is responsible for a large chunk of costs of administering decisions. The less the need for third-party enforcement - and the more the reliance on self-enforcement, incentive-based devices – the more the likelihood that costs would be reduced, thereby creating efficient outcomes. In domestic systems, attempts have been made to enshrine efficiency considerations in the decision-making process with mixed success. Domestic systems traditionally are based on command-and-control instruments and are heavily dependent on third-party enforcement. These domestic systems have been challenged from anefficiency perspective as failing to produce optimal outcomes (that is, the achievement of most benefits at the least cost). A whole school of law, the law and economics approach has as its objective to assess domestic command-and-control instruments and propose more efficient alternatives.

From an efficiency viewpoint, international law could be characterized as a self-enforcing institution. Enforcement is not absent in international law, but it is dispersed among a number of different actors that are usually reluctant to pull enforcement actions against recalcitrant states unless they perceive that vital interests are at stake. Actors in international law usually make a conscious choice to avoid coercive mechanisms and, instead, rely on persuasion. To be successful in persuasion, incentives usually are provided to induce compliance. These incentives may take the form of financial assistance, knowledge transfer, or trade preferences. Although international environmental instruments recently have assumed an increasing command and-control regulatory character, the self-enforcing nature of international law has remained, leading to efficiency results in areas where third-party enforcement would be expensive. The self-enforcing nature of international law is demonstrated by the facts that instruments that rely primarily on command, such as the blanket prohibition of certain activities, have not been that successful. A prime example is provided by the Basel regime and the CITES regime. Because enforcement has not been credible in these regimes, the emergence of illegal markets is the ensuing phenomenon.

This self-enforcing nature of international law, based on a number of decentralized incentives, saves on the costs of third-party enforcement, but it creates other costs in terms of coordination and the running of parallel and overlapping administrative systems that are expensive. The question then is whether a more centralized system relying more on third-party enforcement would be more desirable than the current decentralized incentive-driven system based on a number of costly administrative overlaps. The evolution of international law seems to point to the second direction, as the achievement of a perception of equitable results makes an overlapping apparatus desirable.

Cost-Effectiveness and Equity

Cost reduction issues cannot be separated neatly from equity issues. An outcome, for instance, cannot be considered cost-effective if the initial decision reduces costs, over the costs of competing decisions, but the eventual outcome is constantly sabotaged by the losers. For an outcome to be efficient, it has to address concerns of equity with some sort of effectiveness. Another option is to use coercion to force efficient outcomes, but the costs of using coercion may outdo the cost savings initially presumed.

For decision making that involves issues of national development and environmental management, it would be misguiding to perceive efficiency as a simple calculation of benefits and costs. Many of the benefits would resist quantification and many of the costs may not be that obvious, especially social costs.

In terms of environmental management or development decisions that have overall global beneficial effects but also entail many losers – in terms of displacementof populations or the wiping-out of traditional occupations - a Kaldor-Hicks criterion seems to be a more appropriate way to take into account equity concerns.

This is because the criterion considers global wealth maximizing effects but recognizes, simultaneously, the need to compensate the losers. Therefore, although the criterion is presented as a criterion of efficiency, it is imbued with equity considerations. Of course, the criterion does not provide a clear guidance about the level of compensation that is considered satisfactory to the losers, because this would vary according to individual circumstances and situations, but it does provide a more organized framework concerning how to combine effective, efficient, and equitable outcomes.

A Kaldor-Hicks criterion has been applied in the climate change and ozone regimes in which achievement of global beneficial environmental effects has been pursued by providing compensation to developing countries that have the most to lose for reducing their emissions. Whether the regimes would be successful would depend on whether the compensation provided would be considered satisfactory to developing countries - which mean that proceeds received from compensation should outweigh the benefits of pursuing polluting technologies.

A Kaldor-Hicks criterion has yet to be applied in development/environmental management decisions in which the uprooting of populations is justified for purposes of maximizing the global welfare (e.g., in terms of global biodiversity protection). Compensation in cases of internal displacement is rarely provided and, if it does, it is rarely considered satisfactory.

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