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


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.


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