Special regimes. An overview of the main compliance mechanisms in international environmental law

The response to a breach of an IEL obligation has included a range of possibilities, ranging from non-compliance claims to a series of dispute settlement mechanisms, such as negotiation, consultation and quasi-judicial and judicial mechanisms. MEAs have modified this original landscape by introducing other mechanisms which aim to prevent the breach of obligations and assist States in their preparation to ensure compliance. These new mechanisms have added to the traditional dispute resolution mechanisms, creating a network of treaty bodies tasked with compliance and non-compliance procedures. Reporting and information processes are now common across the various MEAs which represent a stage before any formal procedure takes place. In practice, there are as many compliance systems as MEAs observable in IEL.

Incentives, financial mechanisms and technology transfers are used in IEL to foster compliance. Examples are the programs offered by World Bank, the International Development Bank and the International Finance Corporation (IFC). Some of these financial institutions, such as the World Bank, have a mixed record in compliance with IEL. The World Bank has come under scrutiny for funding projects with negative effects on the environment. Due to the pressure put on it by NGOs and activists, the World Bank changed its strategy to assume sustainable commitments, assessing the environmental impacts of the development projects it sponsors. The Strategic Environmental Assessment includes the participation of key stakeholders to give a say to ‘those affected by policy, program, and plans’. Clearing house mechanisms have proliferated in MEAs; the main function of these mechanisms is to coordinate information exchange between the parties to the respective treaty. Capacity building and

1

World Bank» Strategic Environmental Assessment, Concept and Practice, World Bank Environmental Strategy Note N14 (2005).

International environmental law compliance 53 technology transfer also contribute to compliance. Other facilities at the international level have been established to provide financial and technical assistance to developing countries, promoting environmental protection, and supporting projects in the areas of biodiversity, climate change, international waters, land degradation, the ozone layer and persistent organic pollutants (POPs).

In a brief review of the judicial mechanisms available to settle environmental disputes, one must refer to the role of the International Court of Justice (ICJ) and other international courts and tribunals with a bearing in the area of environmental law, such as the International Tribunal for the Law of the Sea (ITLOS).[1] As stated in the Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, it was made clear that the Court can entertain environmental issues in an ever-changing international landscape. In 1993, the ICJ set up a permanent environmental chamber made up of seven members with the goal of providing a specific forum to decide cases with an environmental dimension. Yet the chamber was never used, and it was abolished in 20 06. At this point, it is worth underlining the fact that international environmental litigation takes place in other realms, such as investment and trade courts of law. A detailed examination of the role of international courts and tribunals in international environmental litigation is presented in Chapter 6.

New specialized environmental courts and tribunals established in domestic jurisdictions around the world may indicate that the time is ripe to create a similar court or mechanisms to resort to international conflict resolution processes. Despite the possibility of submitting claims before a growing number of environmental courts and tribunals, their jurisdiction is still confined to territorial borders. The creation of an environmental tribunal at the international level would require a new theoretical model capable of explaining and accommodating environmental adjudication. While there have been initiatives to create an International Environmental Court and other multi-national environmental adjudication bodies, they have not received significant support from States.

The legal profession and non-profit organisations have favoured the creation of an international environmental court.[2]

More recently, Informal Environmental Conflict Resolution (IECR) mechanisms have emerged within the overall institutional justice architecture. Recent years have witnessed a proliferation of environmental courts and tribunals which conceivably furthers access to environmental justice, yet IECR and transnational law-making have become more significant.

Most MEAs provide for a panoply of institutional arrangements, ranging from reporting mechanisms, including conferences, to the creation of institutional structures and embryonic international organisations in charge of the implementation of IEL. In a review of the typology of the mechanisms, many MEAs institute a ‘Conference of the Parties’ (COPs), assisted by a secretariat and sometimes scientific advisory bodies. This can be seen in the case of the COPs under the Vienna Ozone Convention and regular COPS under Chapter 7 of the Montreal Protocol or the Biodiversity Convention. Other examples of regular COPs are the Convention for the Protection of the Marine Environment of the North East Atlantic (OSPAR Convention) and CITES, which establishes a COP meeting at least every two years. The UNFCCC represents a more advanced model as it sets up an annual COP.

Non-compliance procedures (NCP) can address the failure by Contracting Parties in properly implementing their treaty obligations. Examples of NCPs instituted under MEAs include the 1987 Montreal Protocol to the 1985 Vienna Convention on the Protection of the Ozone Layer, the 1991 VOC and 1994 Sulphur Protocols to the 1979 Long-Range Transboundary Air Pollution Treaty, the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic and the 1997 Kyoto Protocol to the 1992 Framework Convention on Climate Change. All these MEAs create separate mechanisms for compliance, having been established under the treaty with nuances.

NCPs are seen as a response to the inadequacies of the SR regime and a move away from classical international law schemes that focus on material breach of treaty obligations in an attempt to properly address problems of environmental treaty compliance. Since its inception, IEL has been confronted with problems related to the particular nature of international environmental obligations, relating to the constraints in addressing treaty breaches due to a failure to act on the part of the responsible State. A specific shortcoming of the SR system which these NCPs attempt to mitigate is the unfitness of SR in preventing harm, especially with regard to the global commons.

Table 2.1 Compliance mechanisms in MEAs: an overview

MEA

Compliance Mechanism

Periodicity

Dispute Resolution

UNFCCC

Conference of the Parties (COP)

Yearly

No specific conflict resolution mechanism

OSPAR

Meetings of the

Parties (Art 23)

Action Plans

Dispute resolution

mechanism of Article 32

CITES

COP (Art XI)

Resolution Conf.

14.3, CITES compliance procedures Submission of

CITES annual reports

Negotiation, and by mutual consent, submit the dispute to arbitration, in particular that of the Permanent Court of

Arbitration at The Hague (Art XVIII.1 and 2)

CBD

COP

At intervals determined by the parties

(Art 26)

Negotiation, good offices, mediation. Subject to consent: Arbitration or Submission to the International Court of Justice (Art 27)

Source: Author’s own elaboration.

Below is an overview of the institutional machinery of main MEAs. They have operated the transition from bilateral dispute settlement to multilateral means in different forms: mainly, intergovernmental commissions and meetings of treaty parties which coordinate policies, plans and programmes (Table 2.1).

  • [1] Tim Stephens, ‘International Courts and Environmental Governance’, in International Courts and Environmental Protection (Cambridge Studies in International and Comparative Law Cambridge University Press 2009), pp. 91-118. 2 International Court of Justice, Chambers and Committees, available at https://www.icj-cij.org/ en/chambers-and-committees accessed 1 April 2020. 3 Philippe Sands, ‘Litigating Environmental Disputes: Courts, Tribunals and the Progressive Development of International Environmental Law’, in Tafsir Malick Ndiaye and Rüdiger Wolfrum (eds), Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Brill Academic Publishers 2007), available at http://www.oecd.org/investment/globalfo-rum/40311090.pdf accessed 1 April 2020. 4 Richard Lazarus, ‘Pursuing ‘Environmental Justice’: The Distributional Effects of Environmental Protection (1992-1993) 87 Northwestern University Law Review, p. 787. 5 Ceri Warnock, ‘Reconceptualising Specialist Environment Courts and Tribunals’ (2017) 37(3) Legal Studies, pp. 391-417. 6 Ole Pedersen, ‘An International Environmental Court and International Legalism’ (2012) 24(3) Journal of Environmental Law, pp. 547-558.
  • [2] Anne Me Millan, Time for an International Court for the Environment, International Bar Association (IBA) 2011, available at https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=7 lb817c7-8026-48de-8744-50d227954e04 accessed 1 April 2020. 2 D.C Smith, ‘Environmental Courts and Tribunals: Changing Environmental and Natural Resources Law around the Globe’ (2018) 36(2) Journal of Energy & Natural Resources Law, pp. 137-140.
 
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