International environmental law compliance: theoretical framework, current trends and future scenarios

Redefining compliance with international environmental law

Compliance with International Environmental Law (IEL) has focussed on MEAs in order to secure observance of the treaties by individual States and international organisations that may be allowed to become parties to MEAs. Compliance and implementation of treaties are often used interchangeably. As a specific term ‘implementation’ refers to the measures taken to bring a treaty to life within the respective individual States. In this vein, implementation means not only enacting relevant laws and regulations but also adopting relevant policies as well as other measures and actions required for parties to meet their obligations under an MEA.

This chapter dissects the essential features and specific characteristics of compliance with IEL. It looks at the differences between compliance and enforcement, providing a general framework for international responsibility and liability under various regimes. In an extensive examination of the regimes, the chapter indicates the main trends in terms of mechanisms and approaches to compliance in IEL.

By merely looking at the normative inflation experienced in IEL, one may fall prey to the view that compliance is less of an issue than it used to be. Modern environmental law-making was kick-started by the Earth Summit in Rio de Janeiro in 1992 and Agenda 21, which, despite being a soft-law instrument, led to the adoption of various treaties.1 At the Conference, the climate and biodiversity treaties embodied the two respective regimes.

Although numerous compliance mechanisms have been set up in the treaties this does not automatically mean effective compliance. A further distinction must be drawn between implementation, including formal implementation and effective implementation on the ground.[1] In identifying several layers of implementation,

Guruswamy distinguishes various types of meanings of implementation. ‘Formal implementation’ is understood as the ‘process by which a treaty is incorporated into domestic law through legislative, judicial, or executive action’.[2] In turn, ‘compliance’ designates ‘the extent to which a party has adhered to its treaty obligations by deploying the formal implementing machinery established by the treaty. The third dimension of implementation can also be referred to as material implementation, focussing on effective implementation on the ground by a party to an MEA.

External factors that are shaping compliance with IEL fall into different categories. Alongside the internal or intrinsic factors observed in addressing specific environmental problems, such as air pollution, water pollution, land degradation, deforestation and anthropogenic climate change, new external factors are emerging. Among others, it is worth mentioning the impact of technology and science on environmental compliance. Available scientific evidence has traditionally been relied upon, in line with the application of the precautionary principle. Technological development influences compliance by providing more accurate environmental information.

The various generations of MEAs have addressed and regulated environmental problems in light of scientific evidence and evolution of the technology. Best available technology represents one of the core tools in the definition of compliance with environmental law at the domestic level, and the concept has been distinctly deployed in IEL. Best available technology or best available techniques (BAT), understood as the technology approved by legislators or regulators for output standards of a certain process, is at the centre of pollution prevention and key in the achievement of sustainable development. BAT has also become relevant in other realms, such as in the field of international trade law as regards environmental protection and processes and production methods.

Environmental protection and sustainable development are intertwined in the setting of sustainable development goals. Contemporary law-making shows numerous examples of soft law in the form of action plans, outlining actions to be undertaken by a wide range of actors. Various initiatives have emerged under existing multilateral environmental agreements, establishing links between the different areas.

Along with formal MEAs, recent years have witnessed the adoption of a series of ‘voluntary international agreements’, such as in the shape of declaratory provisions or provisions with a hortatory content also involving the private sector. An example of this is Article 6 of the Paris Agreement, which states that ‘[p]arties recognize that some Parties choose to pursue voluntary cooperation in the implementation of their nationally determined contributions to allow for higher ambition in their mitigation and adaptation actions and to promote sustainable development and environmental integrity’.[3] In specific IEL areas, in the last few decades, institutions have developed guidelines for compliance with regard to sectoral environmental protection. See, for instance, the 2015 Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Wastes.

Compliance issues confront States with a series of questions about the fulfilment of international obligations. Obligations of conduct or result, as set out in IEL norms, are required from States under different international environmental regimes. States subject to these obligations are supposed to demonstrate compliance with the norms through the adoption of the necessary measures to fulfil the obligations set forth in the specific MEA. Ultimately, the effectiveness of MEAs relies on the respective contracting states to implement the norms domestically.

What is a source of concern amongst states concerning environmental protection on the international level depends on a myriad of factors. Classical dynamics relating to consistent collective action in relation to global environmental problems can be observed in the articulation of mechanisms and the creation of institutional machinery to monitor compliance. Ensuring compliance and implementation with IEL also involves a question of values, whether their nature be ethical, societal or market-related. These values are interwoven into the legal framework of IEL.

One particularly difficult aspect is the solution of disputes that may arise with regard to imperfect or inadequate compliance with MEAs. Wherever non-compliance with IEA or a dispute arises, States resort to classical means of dispute settlement, scattered throughout various areas of international law. However, there is no permanent settlement mechanisms for the resolution of environmental disputes. Formal methods available to States party to a controversy (art 33 UN Charter) consist of judicial and non-judicial (or diplomatic) methods, the latter offering the benefits of flexibility, cheapness, privacy and freedom to determine the details of the proceedings.11 Global commons problems bring up different compliance problems, such as ozone depletion, climate change or deep-sea bed exploitation.

Many deficiencies of the traditional IEL system have become evident. Traditional inter-state dispute settlement is ill-suited to address the question of compliance. Moreover, scholars have pointed out the deficiency of the law of state responsibility to address lack of environmental compliance.[4] The law of state responsibility falls short of responding to the challenges posed by IEL. Environmental harms are widely distributed, and there is no specific incentive to undertake enforcement actions.

Efforts to modernize environmental compliance are evinced by the adoption of new international treaties and additional protocols or agreements to MEAs previously concluded. Implementation relies on measures which States adopt to make international agreements effective in their respective domestic law systems. Although some MEAs are self-executing and do not require the adoption of national legislation, many of them do ask for specific mechanisms. Systems and mechanisms which have remained unused for decades have hereby come to life.

Many scholars have addressed compliance with IEL from different angles. Compliance has traditionally been linked to legal effectiveness, which relates to specific environmental problems that the relevant environmental treaty attempts to solve. Scholars like Bodansky have categorized treaty-based compliance systems in terms of their legal effectiveness as follows: compliance, behavioural effectiveness, and problem-solving effectiveness. Questioning the formal concept of compliance, Bodansky offers several contrasting ways in which to interpret compliance. First, the concept of legal effectiveness, more related to compliance in a material meaning, scrutinizes whether the results obtained are aligned with the legal requirements set out in the specific environmental treaty. In this sense, States obey the obligations laid down in a treaty, providing for measures such as the creation of a permit system for trade in endangered species (under CITES) or instituting reporting obligations on greenhouse gas emissions (under the Kyoto Protocol).

From a formalistic standpoint, a state is compliant as long as it acts consistently with the obligations set forth in the treaty. Clearly, if the obligation is an obligation of result, states will be deemed in compliance when the outcome is achieved, as in the stipulated reduction or curbing of gases. In a second meaning identified by Bodansky, behavioural effectiveness relates to a change in state behaviour influenced by a treaty, even though the state may not formally comply with the wording of the treaty. Finally, from a teleological perspective, problem-solving effectiveness refers to the extent to which a certain treaty contributes to the achievement of environmental goals or to solving an environmental problem.

Taking the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (hereinafter referred to as ‘the Montreal Protocol’) as an example, Bodan-sky illustrates the various connotations of compliance as understood in IEL. The main goal set for States is to reduce the consumption and production of Ozone Depleting Substances (ODS) by the required limits. Legal effectiveness resides in the effective reduction of consumption and production of ODS. From a behavioural perspective, it is deemed to be effective only if the reductions are a direct consequence of the Protocol. Finally, the problem-solving effectiveness consists in the actual reversion of the depletion of the stratospheric ozone layer.[5] Equally, the Kyoto Protocol allows for both States and international organisations to become parties to the treaty. In another example, Bodansky identifies diverse layers of effectiveness evaluating the problem-solving effectiveness of CITES. Legal effectiveness is thus different from behavioural effectiveness as the former may not necessarily be induced by the adoption of new environmental standards. Guruswamy further differentiates between effectiveness and the impact of IEL norms. Key contributions from Downs and Raustiala to the IEL literature point out the obstacles in obtaining compliance.

Interdisciplinary theoretical stances, such as political sciences approaches, place emphasis on different elements of the process. Indeed, from a political science perspective, behavioural changes carry more relevance than any potential formal attempt to conform to IEL norms. Other scholars, such as Miles et al., offer evidence-based approaches examining the various environmental regimes and have classified them into separate categories: effective, mid-performance and ineffective regimes. Under the first category, they mention the Sea Dumping of Low-Level Radioactive Waste, Management of Tuna Fisheries in the Pacific and Vienna Convention and Montreal Protocol on Ozone Layer Depletion. Examples of mixed-performance regimes include Land-Based Pollution Control in the North Sea, the Convention on Long-Range Transboundary Air Pollution, Satellite Telecommunication and Management of High Seas Salmon in the North Pacific. Ineffective regimes, by contrast, include the Mediterranean Action Plan, Oil Pollution from Ships at Sea, International Trade in Endangered Species, International Whaling Commission and Convention for the Conservation of Antarctic Marine Living Resources.

Diplomatic means are more political and pragmatic, and non-legalistic; forward-looking, as their goal is to manage environmental problems in order to

International environmental law compliance 39 achieve a reasonable level of compliance in the future; and non-adversarial, rather than contentious in nature. Characteristically in this approach, compliance and non-compliance is part of a continuum.

In a broader sense, compliance with IEL involves compliance devised through its other branches.[6] Interestingly, motivation for this compliance poses various other questions: Why do states engage in compliance with IEL? Does it really foster compliance, or is it merely reflecting behaviour? What is the desired behaviour? What is expected from the various actors? How can compliance with IEL be induced?

Notably, varying levels of compliance or non-compliance are observed in practice. Thus, there are cases of small and big violations, bare compliance and over-compliance, and compliance and breach. Each regime reflects multiple approaches to these issues, such as the Espoo Convention on Transboundary Environmental Impact Assessment, the Kyoto Protocol, the Basel Convention, the Aarhus Convention on Public Participation, the Cartagena Biosafety Protocol, the London Protocol, the Rotterdam Chemicals Convention and the Stockholm Convention on Persistent Organic Pollutants.

Several parties are involved in the environmental compliance process: the non-compliant States, non-state actors, international organisations, nongovernmental organisations and other stakeholders. Implementation is influenced by the structure of the state. Multilevel governance and regional organisations represent another feature in the current landscape for compliance. Given the increasing number of environmental norms, overlaps between international, regional and national levels often occur.

Compliance implies assessing the steps which States have taken to comply with the obligations, procedural or substantive. Flaws in the legal technique and in the wording of the MEAs may condition the implementation. Sanctions are used as deterrents to encourage compliance and punish offenders. Although formal implementation may be measured by determining how States have achieved the stated objectives of the treaty, what is crucial is to address the environmental problems tackled in the MEAs.

  • [1] United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, Agenda 21, available at https://sustainabledevelopment.un.org/content/documents/Agenda21. pdf accessed 25 March 2020. 2 Malgosia Fitzmaurice and Catherine Redgwell, ‘Environmental Non-compliance Procedures and International Law’ (2000) 31 Netherlands Yearbook of International Lan pp. 35-65.
  • [2] Lakshman D. Guruswamy, International Environmental Law (4th edn West 2012) at 56. 2 Ibid., at 57. 3 Ibid. 4 Ray Purdy, ‘Satellites: A New Era for Environmental Compliance?’ (2006) 3(5) Journal for European Environmental and Planning Law, pp. 406-413. 5 OECD, available at https://www.oecd.org/chemicalsafety/risk-management/policies-on-best-available-techniques-or-similar-concepts-around-the-world.pdf accessed 1 April 2020. See also Panos Merkouris, ‘The Principle of Sustainable Development and Best Available Technology under International Law’, in K. Makuch and R. Pereira (eds), Environmental and Energy Law (Wiley-Blackwell 2012), pp. 37-60,24. 6 Renske A. Giljam, ‘Extended Application of‘Best Available Techniques’ as a Means to Facilitate Ecological Governance’, (2018) 36(2) Journal of Energy & Natural Resources Law, pp. 181-208.
  • [3] 2 Decision 14/30 of the Governing Council of UNEP, of 17 June 1987, available at https:// wedocs.unep.org/handle/20.500.11822/29578?show=full accessed 1 March 2020. 3 Patricia Birnie, Alan Boyle, and Catherine Redgwell, International Law and the Environment (3rd edn Oxford University Press 2009).
  • [4] Haroldo Machado Filho, ‘Looking for Adequate Tools for the Enforcement of Multilateral Environmental Agreements: Compliance Procedures and Mechanisms’, European Society of International Law 2018, available at https://esil-sedi.eu/wp-content/uploads/2018/04/Filho.pdf accessed 1 March 2020. 2 Daniel Bodansky, The Art and Craft of International Environmental Law (Cambridge University Press 2011) at 63. 3 Bodansky (n 13) at 64. 4 Ibid.
  • [5] Ibid. 2 Ibid., at 67. 3 Guruswamy (n 3). 4 Alan E. Boyle, ‘Saving the World? Implementation and Enforcement of International Environmental Law through International Institutions’ (1991) 3(2) Journal of Environmental Lawy pp. 229-245. 5 Edward L. Miles, Steinar Andresen, Elaine M. Carlin, Jon Birger Skjcerseth, Arild Underdal and Jorgen Wettestad, Environmental Regime Effectiveness Confronting Theory with Evidence (MIT Press 2001).
  • [6] Alan E. Boyle, ‘Relationship between International Environmental Law and Other Branches of International Law’, in Daniel Bodansky, Jutta Brunnee, and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2008). 2 Andrew T. Guzman, ‘A Compliance Based Theory of International Law’ (2002) 29(90) California Law Review., p. 1823. George W. Downs, David M. Rocke, and Peter N. Barsoom, ‘Is the Good News about Compliance Good News about Cooperation?’ (1996) 50(3) International Organization^ pp. 379-406.
 
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