(8) Environmental Law
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Law of Treaties Section D:Legal aspects of iInvalidity, termination and suspension
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.
