Innovative approaches to compliance: current trends and future scenarios

In defining the concept of innovation in IEL, various elements need to be taken into consideration: the manner in which mechanisms are designed in the legal instruments, the regulatory strategy, the introduction of other mechanisms outside law to reinforce compliance, the approach to liability and the role of the courts. It holds true that innovation depends upon the specific subsystem of IEL in question, e.g. water management, pollution or regulation of chemicals. This translates into various ways in which to understand innovation pertaining to the specific sub-area of IEL. Conversely, what can be defined as innovative in one sub-branch of IEL may not prove effective in another specific theme-area.

For most of the 20th century the overall approach to compliance with IEL has been responsive rather than preventative, focussing on specific sectors in

1

Boyle (n 19) at 230.

which enforcement is crucial. Responsive solutions take into account structures and systems of regulators and regulated sectors. ‘Control and command’ has been the predominant stance, laws laying down the prescribed standards (such as emissions and technology standards) by which compliance is monitored: a breach of an IEL obligation sets in motion compliance mechanisms.

Against this backdrop, innovation in IEL has the goal of keeping abreast of, preventing and adapting to environmental phenomena.[1] In defining innovation in the compliance with IEL, various aspects are revealed as crucial. The core elements of compliance distil inter-state elements. Erg a omnes obligations have been hailed as a solution to the non-reciprocal character of environmental law obligations.

Innovation presents a variety of dimensions - social, economic, and technological - that should be integrated into the legal responses and mechanisms geared towards IEL. Whether these new international legal responses fulfil the needs and requirements of the society and environmental protection in what has been called the Anthropocene (an era dominated by human activity’s influence on climate and the environment) is still an open question.

Law-makers are confronted with evidence stemming from cases pertaining to non-compliance with IEL. The new legal design of various instruments brings about innovative procedures and mechanisms, which include various slants of innovation. Although, because of their features, NCPs are often treated as innovative mechanisms, there is a considerable overlap between them in some cases, and their effectiveness is disputed. Other approaches that encourage compliance with IEL or enforcement include voluntary cooperation frameworks. Self-regulation emerges as an innovative practice. Within this idea of self-regulation, individual agreements are reached in targeted sectors between governments and specific industries to tackle specific environmental problems.

From the perspective of innovation, the introduction of market mechanisms may prove effective in addressing certain environmental problems. Equally relevant, different forms of liability regimes and measures may offer new methods to address environmental problems on the international level.

In the pursuit of compliance, a recalibration of the IEL system is necessary to strike the right balance between economic progress and environmental protection. Newly independent and developing States’ stances on IEL should also be taken into consideration to guarantee equality in international society.

Bibliography

Birnie, P, Boyle, A, and Redgwell, C, International Law and the Environment (3rd edn Oxford University Press 2009).

Bodansky, D, The Art and Craft of International Environmental Law (Cambridge University Press 2011).

Boyle, AE, ‘Saving the World? Implementation and Enforcement of International Environmental Law through International Institutions’ (1991) 3(2) Journal of Environmental Law, pp. 229-245.

Boyle, Alan E, ‘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), pp. 125-146.

Brown Weiss, Edith, ‘International Environmental Law: Contemporary Issues and the Emergence of a New World Order’ (1993) 81 Georgetown Law Journal, p. 675.

Brunnee, J, ‘ESIL Reflection Procedure and Substance in International Environmental Law Confused at a Higher Level?’ (2016) 5(6) ESIL Forum, available at https://esil-sedi.eu/post_name-123/ accessed 1 April 2020.

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.

Craik, N, Jefferies, Cameron, Seek, Sara, and Stephens, Tim, (eds), Global Environmental Change and Innovation in International Law (Cambridge University Press 2018).

Crawford, J, State Responsibility: The General Part, Cambridge Studies in Comparative and International Law (Cambridge University Press 2014).

Delimatsis, P, Research Handbook on Climate Change and Trade Law (Edward Elgar 2016).

Downs, George W, Rocke, David M, and Barsoom, Peter N, ‘Is the Good News about Compliance Good News about Cooperation?’ (1996) 50(3) International Organization, pp. 379-406.

Dupuy, Pierre M and Vinuales, Jorge, International Environmental Law (CUP 2015), pp. 385-386.

Esposito, Robert, ‘The ICJ and the Future of Transboundary Harm Disputes: A Preliminary Analysis of the Case Concerning Aerial Herbicide Spraying (Ecuador v. Colombia)’, Pace International Law Review. Online Companion, August 2010, at 1.

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.

Fitzmaurice, MA and Redgwell, C, ‘Environmental Non-compliance Procedures and International Law’ (2000) 31 Netherlands Tearbook of International Law, pp. 35-65.

Giljam, RA, ‘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.

Goeteyn, Nils Frank Maes, ‘Compliance Mechanisms in Multilateral Environmental Agreements: An Effective Way to Improve Compliance?’ (2011) 10(4) Chinese Journal of International Law, pp. 791-826.

Guruswamy, L, International Environmental Law (4th edn West 2012).

Guzman, Andrew T, ‘A Compliance Based Theory of International Law’ (2002) 29(90) California Law Review, p. 1823.

Hanqin, Xue, Transboundary Damage in International Law (Cambridge University Press 2003).

Huge, Jean N Mukherjee, Fertel, C, Waaub, JP, Block, Thomas, Waas, Tom, Koedam, N, and Dahdouh-Guebas, F. ‘Conceptualizing the Effectiveness of Sustainability Assessment in Development Cooperation’ (2015) 7(5) Sustainability, pp. 5735-5751.

ILC, Chapter VI. Protection of the Environment in Relation to Armed Conflicts, available at https://legal.un.org/ilc/reports/2019/english/chp6.pdf. See also, Conflict and Environment Observatory, UN lawyers approve 28 legal principles to reduce the environmental impact of war, available at https://ceobs.org/un-lawyers-approve-28-legal-principles-to-reduce-the-environmental-impact-of-war/ accessed 1 March 2020.

Institut de Droit International, Session of Strasbourg - 1997, Responsibility and Liability under International Law for Environmental Damage (Eighth Commission, Rapporteur: Mr Francisco Orrego Vicuna), available at https://www.idi-iil.org/app/ uploads/2017/06/1997_str_03_en.pdf accessed 1 April 2020.

International Court of Justice, Chambers and Committees, available at https://www. icj-cij.org/en/chambers-and-committees accessed 1 April 2020.

International Environmental Agreements (IEA) Database Project, 2002-2019, available at https://iea.uoregon.edu accessed 1 April 2020.

Kiss, Alex and Shelton, Dinah L, ‘Strict Liability in International Environmental Law. Law of The Sea’, in Tafsir Malick Ndiaye and Riidiger Wolfrum (eds), Environmental Law And Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Brill Academic Publishers 2007). GWU Legal Studies Research Paper No. 345, GWU Law School Public Law Research Paper No. 345, available at SSRN: https://ssrn.com/ab-stract=1010478 accessed 1 April 2020.

Koivurova, T, Introduction to International Environmental Law (Routledge 2012).

Koskenniemi, Martti, 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/documentation/english/a_cn4_1682.pdf accessed 1 March 2020.

Kotzé, Louis (ed), Environmental Law and Governance for the Anthropocene (Bloomsbury 2017).

Lazarus, R, ‘Pursuing ‘Environmental Justice’: The Distributional Effects of Environmental Protection (1992-1993) 87 Northwestern University Law Review, p. 787.

Linden, M, ‘Environmental Damage in Armed Conflict to What Extent Do the Remedies Available for Environmental Damage in Armed Conflict Reflect the Polluter Pays Principle? The Cases of the Jiyeh Power Station and the Niger Delta Conflict’ (University of Gottenburgh 2017), available at https://gupea.ub.gu.Se/bitstream/2077/53076/l/ gupea_2077_53076_l.pdf accessed 1 April 2020.

Machado Filho, H, ‘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/up-loads/2018/04/Filho.pdf accessed 1 March 2020.

Mackielo, Andrea Laura, ‘Core Rules of International Environmental Law’ (2009) 16(1) ILSA Journal of International & Comparative Law, Article 11, pp. 257-299.

Maljean-Dubois, Sandrine, ‘International Litigation and State Liability for Environmental Damages: Recent Evolutions and Perspectives’ in Jiunn-rong Yeh (ed), Climate Change Liability and Beyond (National Taiwan University Press 2017), available at https://halshs.archives-ouvertes.fr/halshs-01675506/document accessed 1 April 2020.

Me Millan, A, Time for an International Court for the Environment, International Bar Association (IBA) 2011, available at https://www.ibanet.org/Article/NewDetail.as-px?ArticleUid=71b817c7-8026-48de-8744-50d227954e04 accessed 1 April 2020.

Merkouris, P, ‘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.

Miles, Edward L, Andresen, Steinar, Carlin, Elaine M, Skjasrseth, Ion Birger, Underdal, Arild, and Wettestad, Jorgen, Environmental Regime Effectiveness Confronting Theory with Evidence (MIT Press 2001).

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.

Okowa, Phoebe State Responsibility for Transboundary Air Pollution in International Law (Oxford University Press 2001).

Palosaari, Tuomas, ‘More than Just Wishful Thinking? Existence and Identification of Environmental Obligations Erga Omnes’, University of Eastern Finland Law School, Master’s Thesis Seminar, 27 March 2018, available at https://epublications.uef.fi/pub/ urn_nbn_fi_uef-20180404/urn_nbn_fi_uef-20180404.pdf accessed 1 March 2020.

Pedersen, O, ‘An International Environmental Court and International Legalism’ (2012) 24(3) Journal of Environmental Law, pp. 547-558.

Plakokefalos, Ilias, ‘Causation in the Law of State Responsibility and the Problem of Overdetermination: In Search of Clarity’ (2015) 26(2) European Journal of International Law, pp. 471-492, available at https://doi.org/10.1093/ejil/chv023 accessed 1 March 2020.

Purdy, R, ‘Satellites: A New Era for Environmental Compliance?’ (2006) 3(5) Journal for European Environmental and Planning Law, pp. 406-413.

Sands, P, ‘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/globalforum/40311090.pdf accessed 1 April 2020.

Smith, DC, ‘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.

Stephens, T, ‘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/CB09780511576034.012 accessed 1 April 2020.

Stephens, T, ‘International Courts and Environmental Governance’, in T. Stephens (ed.), International Courts and Environmental Protection (Cambridge Studies in International and Comparative Law Cambridge University Press 2009), pp. 91-118.

UNEP, 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.

UNEP, Guidelines on Compliance with and Enforcement of Multilateral Environmental Agreements, available at https://wedocs.unep.org/bitstream/handle/20.500. 11822/17018/UNEP-guidelines-compliance-MEA.pdf?sequence=l&isAllowed=y accessed 1 April 2020.

UNEP, Protecting the Environment during Armed Conflict: An Inventory and Analysis of International Law (UNEP 2009).

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.

Van Asselt, H, ‘Managing the Fragmentation of International Environmental Law: Forests at the Intersection of the Climate and Biodiversity Regimes’ (2012) 44 International Law and Politics, p. 1205.

Warnock, C, ‘Reconceptualising Specialist Environment Courts and Tribunals’ (2017) 37(3) Legal Studies, pp. 391-417.

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

Yang, Tseming and Percival, Robert V, ‘The Emergence of Global Environmental Law’ (2009) 36 Ecology Law Quarterly, p. 615.

  • [1] Neil Craik, Cameron Jefferies, Sara Seek, and Tim Stephens (eds), Global Environmental Change and Innovation in International Law (Cambridge University Press 2018). 2 Louis Kotze (ed), Environmental Law and Governance for the Anthropocene (Bloomsbury 2017). 3 Nils Goeteyn and Frank Maes, ‘Compliance Mechanisms in Multilateral Environmental Agreements: An Effective Way to Improve Compliance?’ (2011) 10(4) Chinese Journal of International Law, pp. 791-826. 4 Barboza 2010:4.
 
Source