International Environmental Law Section D: Particular subjects II

Environmental Law

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.