Enforcement of International Environmental Law

Challenges and Responses at the International Level

Martin Hedemann-Robinson

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351066563
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The international community has generated several hundred multilateral environmental agreements, yet it has been far less successful in developing means to ensure that contracting parties honour them in practice. The subject of law enforcement has traditionally attracted relatively little attention amongst international policy-makers at the formation stage of a multilateral environmental accord. Commonly, the question of how to secure collective adherence to environmental treaty regimes might well only be considered in depth at a much later stage of an environmental agreement's evolution, if at all. At the same time, the significance of the issue of enforcement has gradually received more considered attention by states and international institutions. Providing an analysis of the nature, extent and current state of the international legal framework concerned with enhancing effective implementation of international environmental law, this book considers the scope and impact of international rules of law whose remit is to require or promote compliance by states with their international environmental legal obligations.

Part I

Challenges of enforcing International Environmental Law

1 Introduction

Ever since nations gathered together for the first seminal international conference on environmental protection in 1972, namely the United Nations Conference on the Human Environment in Stockholm,¹ the international community has not been found wanting in terms of generating significant numbers of multilateral environmental agreements (MEAs). The United Nations Environment Programme (UNEP) has identified over 500 agreements (regional and multilateral) now in existence relating to environmental protection issues.² However, delivery on MEA commitments has been far less forthcoming, with several state parties often having poor or mediocre track records on implementing international environmental treaty obligations.³

The system of international law is based on the premise that states, as its principal subjects, are primarily responsible for the implementation of their international duties, in so far as they do not make other arrangements by way of international agreement.⁴ Whilst it is possible for states to agree with each other to endow independent entities (e.g. international bodies established under the aegis of a treaty) with powers to supervise the proper implementation of treaty obligations by contracting parties, including the power to impose coercive measures as a means of assisting in this objective, in practice very few treaty regimes concerning environmental protection have set up credible international enforcement structures and systems. Enforcement may be defined in basic general terms of being ‘the process of compelling observance of a law’, whilst ‘sanction’ may be depicted as a means to ensure the adherence to a legal requirement or set of requirements by ‘attaching a penalty to transgression’.⁵ Yet powers of compulsion and imposition of penalties are not elements usually embedded within with the rules and institutional structures constituting the framework of the body of international principles and agreements that collectively may be said to form the legal domain known as international environmental law (IEL). Making the writ of IEL run’ by virtue of the deployment of international systems and measures designed to enhance enforcement, regrettably still remains a relatively rare as opposed to a standard occurrence.

At the same time, though, it would be fundamentally incorrect to dismiss the issue of enforcement as a matter of little relevance to the evolving legal framework of IEL. As is widely acknowledged, the establishment of means to ensure that nation states comply with their international obligations concerning environmental protection is of crucial importance to upholding IEL’s credibility and effectiveness.⁶ For unless states take appropriate steps to implement their IEL duties within their respective territories, the brutal reality will be that international agreements on the environment will most likely remain simply words on scrap paper rather than key tools to address regional and global environmental problems and challenges. It is a foundational tenet of international law that states must respect their international legal commitments, as reflected in the principles of pacta sunt servanda⁷ and that a conflict with national law is not normally permissible as a defence to non-compliance with an international legal requirement.⁸ Notwithstanding that these principles are well established within the corpus of international law, in practice there has been a long-standing problem of widespread non-compliance by states with MEAs,⁹ not least given the fact that these principles are not self-executing within a national legal system unless stipulated or otherwise recognised to be the case by a state’s constitution.

The pre-eminent status of the nation state as actors of international relations also raises significant challenges in relation to any attempt to establish international agreement over environmental problems. Whilst the environment respects no borders, international law certainly does. The principle of sovereign equality of nation states¹⁰ which underpins the foundations of international law means that the substantive content and development of any MEA intended to address an environmental problem is dependent upon the consent of each contracting party, unless otherwise agreed. This raises the problem of how to ensure that international environmental standards avoid those favoured by the lowest common denominator. Moreover, it is also a well-established principle that states have exclusive control over activities conducted within their territorial frontiers, in so far these do not have significant adverse environmental effects elsewhere. Whilst the principle of state responsibility has emerged in international law so as to hold individual states to account for transboundary environmental damage perpetrated as a result of activities operated within their respective territories, this does not extend to damage caused to the environment located within their internal frontiers.

This short book considers in outline the contribution made by various international legal principles and treaty initiatives which have been intended to enhance the degree of statal compliance with IEL. Since the 1992 UN Conference on Environment and Development in Rio (the so-called ‘Earth Summit’) the international community has been increasingly mindful of the significance of the issue of IEL implementation and the need to achieve better rates of compliance with MEA commitments.¹¹ Particular attention will be paid to the role played by the relatively recent innovation of collective peer-review type systems instituted within a number of MEA regimes to address suspected or uncontested instances of non-compliance. These arrangements are of notable interest, precisely because they are designed to transfer, at least to some extent, control away from individual states over implementation supervision and into the hands of the collective interest of contracting parties underpinning MEA objectives.

In addition to this brief introduction, Part I spans two other short chapters. Chapters 2 and 3 place the subject of enforcement of IEL into its broader context. Chapter 2 considers the extent of problems the international community has experienced with the challenge of realising the implementation of IEL amongst contracting parties (examining the track record) as well as the general reaction to this issue as expressed at international level. Chapter 3 steps back somewhat and reflects upon the differing theoretical considerations relating to statal motivations and priorities concerning the matter of adhering to IEL requirements as well as upon the care needed when using terminology in this legal field (such as ‘enforcement’, ‘compliance’ and ‘implementation’). Part II explores the range of procedural mechanisms and obligations that have been developed over time in order to address scenarios of non-compliance with international environmental obligations, taking into consideration traditional inter-statal dispute resolution principles and mechanisms as well as more recent and innovative systems of collective compliance review in various MEA systems (notably non-compliance mechanisms and the unique system of law enforcement apparatus of the European Union [EU]). Part III takes a brief look at the availability of sanctions that may be deployed at international level in respect of non-compliance with certain IEL sources before Part V concludes with some brief reflections and tentative conclusions on the prospects for international level systems of enforcement of IEL.

Notes

1 See Report of the 1972 UN Conference on the Human Environment (UN Doc. CONF.48/14/Rev.1) available for inspection at: http://www.un-documents.net/aconf48-14r1.pdf

2 See UNEP, GEO5 Global Environment Outlook: Environment for the Future We Want (2012) at 464 (available at: http://www.unep.org/geo/geo5.asp).

3 See e.g. Krämer (2016) at xviii.

4 Sands/Peel (2018) at 153.

5 The Shorter Oxford English Dictionary 6th ed (Oxford UP, 2007) Vol. I at 833 and Vol. II at 2661 respectively.

6 See e.g. Bodansky (2010) at 226; Boyle (1991) at 226; and Birnie/Boyle/Redgwell (2009) at 211.

7 Art.26 Vienna Convention on the Law of Treaties (VCLT) (8 ILM 679 (1969)).

8 Arts.27 and 46 VCLT.

9 See Neumayer (2012) at 4.

10 See e.g. Sands/Peel (2018) at 12 and Brownlie (1990) at 287.

11 See Section 4 ‘Means of Implementation’ of the blueprint and action plan document for delivery of sustainable development agreed at the 1992 UNCED Agenda 21: Programme of Action for Sustainable Development (UNCED Report, A/CONF.151/26/Rev.1) (Vol.1) (1993) 247–284.

2 Implementation shortcomings and international reaction

As the number of international environmental agreements has increased significantly over time since the early 1970s, the international community has recognised the importance of the need to ensure and develop procedures to promote and review their full and timely implementation.¹ However, the overall track record regarding MEA implementation across the international community of states has been less than impressive. The phenomenon of ‘treaty congestion’ has been criticised, namely a situation characterised by a proliferation of international agreements (bilateral, regional and multilateral) concerned with particular shared environmental problems but hampered in particular by often poor delivery on treaty commitments and a lack of co-ordination between them.²

A number of MEA regimes have noted for several years that many contracting parties fail to honour their treaty obligations, notably with regard to the provision of national reports containing information pertinent for the purposes of assisting review on their implementation performance. A few recent examples serve to illustrate the general long-standing problem of widespread shortcomings concerning implementation. Only 13% of contracting parties submitted their annual report for 2013 on dumping permits under the aegis of the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention).³ Only 47% of contracting parties of the 1996 London Protocol⁴ to the 1972 Convention had submitted marine dumping permit reports for 2013, whilst just 25% of contracting parties had submitted their reports on implementation measures by 2015.⁵ In 2013 only 50% of the contracting parties to the 1973 Washington Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES)⁶ were considered by the 16th Conference of the Parties (COP) to have adopted satisfactory implementation legislation.⁷ As at March 2016, significant shortcomings over data (which should have been supplied by contracting parties) affected 58% of wetland sites of international importance designated under the 1971 Convention on Wetlands of International Importance especially as Waterfowl (Ramsar Convention).⁸ Between 2000 and 2014 a total of 40 non-compliance decisions were made by the Executive Body to the 1979 UNECE Convention on Long-Range Transboundary Air Pollution (CLRTAP)⁹ containing 155 adverse findings against individual contracting parties in respect of reporting obligation violations. During the same period the Executive Body handed down 75 decisions confirming 78 breaches of CLRTAP provisions requiring air pollution emissions reductions by various contracting parties.¹⁰ Some 50% and 55% of contracting parties to the 1989 UN Convention on the Control of the Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention)¹¹ failed to submit their national annual reports on waste data for 2011 and 2012 respectively, whilst only 0.5% and 5% of parties had reported to the Basel Secretariat in 2015 as having submitted complete reports for these two years respectively.¹² As at June 2016, only about half of contracting parties had submitted the three national implementation reports required thus far under the aegis of the 2001 UN Convention on Persistent Organic Pollutants (Stockholm Convention),¹³ according to information provided by the MEA’s Secretariat.¹⁴ Only some 30% of Contracting parties to the 2000 Cartagena Protocol on Biosafety^15...