Fragmentation of compliance monitoring in IEL

Compliance is subject to the obligations established by various MEAs and the actual conduct or results of States subject to these obligations. Implementation

and compliance processes in international law are not, however, centralized, and, thus, compliance is not straightforward.

Obligations contemplated in MEAs may overlap with other commitments imposed on states under different treaty regimes.[1]

Considered a feature of contemporary international environmental law, the proliferation of international environmental instruments has created potential incompatibilities. Endogenous incompatibility arises when environmental law treaties regulating different areas of environmental law clash. Exogenous incompatibility arises when international environmental treaties present contradictions with other areas of international law, such as international economic law. Scholars classify these conflicts by distinguishing between normative conflicts and legitimacy conflicts.

Some international environmental treaties are more prone to interactions with other areas of international law, such as the following: the Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973; the International Tropical Timber Agreement, 18 November 1983; the International Maritime Convention on the Prevention of Marine Pollution by Dumping of Wates and Other Matter, 29 December 1972; and the Montreal Protocol on Substances that Deplete the Ozone Layer, 6 September 1987.

The type of obligations set forth in environmental treaties, whether procedural or obligations of conduct, may lead to normative conflicts. Beyond the IEL realm, several international treaties envisage obligations with a bearing on the environmental realm. The diversification and expansion of international law has led to the co-existence and overlap of regimes. For example, the obligations set out in the UN Framework Convention on Climate Change are intertwined with other commitments assumed by states under other treaty

27

regimes.L '

Treaty congestion has been criticized by IEL scholarship, led by Brown Weiss, which has underlined the ‘operational inefficiency’ deriving from the multiplication of international environmental treaties. This clearly has an impact on international environmental management. In managing fragmentation, various

strategies have been proposed, such as relying on interpretation tools. Relevant literature has shifted from fragmentation to a more holistic approach to the coexistence of the regimes.

Compliance as a function and as a category responds to different treaty regimes. There are many relevant factors, such as the nature of the activities; the treaty itself; the characteristics of the states; policy factors; information; and the behaviours and attitudes of NGOs, other states and IGOs. Amongst these various legal systems conceived as islands of compliance, fragmentation in the compliance with IEL can be observed. Certain self-contained regimes within IEL, such as biodiversity, bring about more complexity as they encompass other compliance categories.

Environmental law scholars have devised strategies to manage the overlap between two legal regimes in IEL, concerning such areas as the interconnected global environmental threats of biodiversity loss and climate change.[2] The interface between climate and biodiversity exists more as an overlap with some potential conflicts between different regimes. Various cases can be used to illustrate the processes of compliance under other regimes. This phenomenon has been underlined with regard to forest carbon sinks under the Kyoto Protocol and measures to tackle deforestation.

With respect to the multiplicity of regimes, there are several key stakeholders involved in compliance with environmental law. Other regimes, such as trade and investment, comprise environmental provisions that influence implementation and compliance with IEL. For instance, under the trade regime, the Technical Barriers to Trade Agreement (TBT) and the Sanitary and Phytosanitary Agreement (SPS) both broadly encompass environmental provisions.

From a dispute resolution perspective, some scholars have also attributed the increase in fragmentation to international dispute settlement and the features of international environmental litigation that takes place before adjudicative institutions, including permanent courts, ad-hoc arbitral tribunals, regional courts and judicial bodies. Arguably, this particular characteristic of contemporary environmental dispute resolution has led to more fragmentation. In particular, this can be observed in two specific fields: human rights and the trade dispute settlement system. It has been claimed that some judicial and quasi-judicial bodies undermine rules and principles of IEL by following specific purposes of non-environmental regimes rather than applying IEL. Fragmentation in international dispute resolution has to be examined against the backdrop of the recent

expansion of the body of international case law on environmental issues in the human rights and international trade law fields.[3]

Pluralism in IEL is evidenced in the emergence of various specialized regimes set up through rules and institutions. Some commentators have argued that the development of quasi-autonomous legal orders leads to the compartmentalization of IEL, while others propose that the decentralization contributes to community objectives which cannot be reached through general rules.

MEAs which have been widely accepted and ratified by States, such as the Convention on Biological Diversity (CBD), create separate legal regimes. Several problems are intertwined and require an adequate policy response. What is interesting is the question of compliance at the intersection of the different regimes in cases of conflicts and convergence between regimes. Convergence depends on how a particular system accommodates the requirements under the other regime. Studies have focussed particularly on the relationship between the climate and the biodiversity regimes.

Although some environmental problems are interrelated, legal regimes governing them may have evolved separately, and thus the interactions on the international law level are less common. In the face of these differing environmental problems and challenges, convergence between regimes would bring more cooperation and improve compliance.

The field of species, ecosystems and biodiversity constitutes a fertile ground for the analysis of the interactions between the regimes, and top-down and bottom-up regulations. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) deals with the trade of certain species comprised in the list annexed to the Convention. Differing obligations are stipulated for the categories in appendixes I, II and III.''' Obligations set out by the treaty apply to these species.

In terms of the interface with other branches of international law, environmental claims have arisen in the context of international economic law disputes in the investment and trade realms. In the investment realm, this includes cases concerning compulsory taking of property by the host state, environmental considerations in the permitting cycle, claims concerning environmental liability and measures ordering reparation for environmental damage and measures concerning renewable energy. In international trade law, the WTO dispute settlement system has witnessed an increase in the number of controversies with

International environmental law compliance 43 environmental content. The so-called environmental exceptions laid down in Article 20 paragraphs b and g of the General Agreement on Tariffs and Trade (GATT) have been invoked to justify the adoption of measures otherwise in breach of the trade liberalization principles. These particular types of clashes or conflicts will be examined in detail in another chapter of this book.

One way of anticipating and avoiding conflict is through a sustainability impact assessment of proposed trade and investment agreements during the negotiating period and before they are concluded.[4] Used in the negotiation of international trade and investment treaties, this type of assessment provides a tool to monitor in advance the environmental risks attached to the implementation of treaties frequently used in development cooperation. However, its effectiveness is limited as these types of assessments are not prescribed, being regulated through soft-law norms rather than by stringent international norms.

Through the lenses of compliance, fragmentation and segmentation of the regimes may create normative and practical hindrances to the implementation of IEL. Normative conflicts may arise if the same type of state behaviour is considered lawful under one regime while being in breach of another. Practical problems may thus be generated.

HANDBOOK FOR TRADE SUSTAINABILITY IMPACT ASSESSMENT (2ND EDITION, EUROPEAN COMMISSION 2016)

Definition of SIAs

SIAs are trade-specific and independent ex ante assessments carried out by external consultants simultaneously with major trade negotiations. They assess in depth the potential economic, social, human rights and environmental impacts of the agreement under negotiation. SIAs help to steer the trade negotiations by feeding them with evidence on an ongoing basis.

Trade SIAs consist of two complementary components of equal importance: (i) a robust analysis of economic, social, human rights and environmental impacts, using, among other methods, modelling techniques and

(Continued)

causal chain analysis. This component is undertaken in a clear and objective manner using state-of-the-art techniques; (ii) a wide consultation process involving stakeholders both in the EU and in the partner country, which provides opportunities for information-gathering and dissemination of results’ (Page 9).

Source: https://trade.ec.europa.eu/doclib/docs/

2016/april/tradoc_154464.PDF

  • [1] Martti Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, A/CN.4/L.682 (13 April 2006), available at https://legal.un.org/ilc/documen-tation/english/a_cn4_1682.pdf accessed 1 March 2020. 2 International Environmental Agreements (IEA) Database Project, 2002-2019, available at https://iea.uoregon.edu accessed 1 April 2020. 3 Edith Brown Weiss, ‘International Environmental Law: Contemporary Issues and the Emergence of a New World Order’ (1993) 81 Georgetown Law Journal, p. 675. 4 Pierre-Marie Dupuy and Jorge Vinuales, International Environmental Law (CUP 2015) at 385-386. 5 Panagiotis Delimatsis, Research Handbook on Climate Change and Trade Law (Edward Elgar 2016). 6 Brown Weiss (n 25) at 697-699.
  • [2] Harro Van Asselt, ‘Managing the Fragmentation of International Environmental Law: Forests at the Intersection of the Climate and Biodiversity Regimes* (2012) 44 International Law and Politics,^. 1205. 2 Tim Stephens, ‘Fragmentation of International Environmental Law’, Chapter 10 -Part III -Contemporary Challenges in International Courts and Environmental Protection (Cambridge University Press 2009), pp. 304-344, available at https://doi.org/10.1017/CB097805115 76034.012 accessed 1 April 2020.
  • [3] Ibid. 2 Van Asselt (n 29) at 1212. 3 CITES, Annexes I, II and III, available at Appendices I, II and III valid from 26 November 2019, available at https://www.cites.org/eng/app/appendices.php accessed 1 April 2020. 4
  • [4] European Commission, Handbook for Trade Sustainability Impact Assessment, European Commission, External Trade, March 2006, available at https://www.wto.org/english/forums_e/ public_forum_e/sia_handbook.pdf accessed 1 April 2020. 2 Jean Huge, N. Mukherjee, C. Fertel, J.P. Waaub, Thomas Block, Tom Waas, N. Koedam, and F. Dahdouh-Guebas, ‘Conceptualizing the Effectiveness of Sustainability Assessment in Development Cooperation’ (2015) 7(5) Sustainability, pp. 5735-5751.
 
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