Tools and mechanisms of compliance: a. Hard law and soft-law instruments, b. International agreements c. Market-based mechanisms

A variety of processes and tools in IEL are put forward to implement substantive obligations imposed on States. Mechanisms instituted in IEL are designed to enhance compliance and to disincentivise non-implementation through the state responsibility regime. Most tools in IEL are adopted under both regimes.

Traditionally, the approach has been to respond to a breach of an IEL norm, then resort to judicial mechanisms and other forms of alternative dispute settlement (inquiry, mediation, conciliation and arbitration). Non-compliance mechanisms are quite a recent phenomenon in IEL, modelled upon the mechanism of the Montreal Protocol, which provided the blueprint for other similar mechanisms and tools.15 Transplants between regimes and regions are also frequent.

15 Antonio Cardesa-Salzmann, ‘Constitutionalising Secondary Rules in Global Environmental Regimes: Non-Compliance Procedures and the Enforcement of Multilateral Environmental Agreements’ (2012) 24(1) Journal of Environmental Law, pp. 103-132.

Contemporary environmental treaty-making reflects the evolution of IEL, indicating a shift from a notion of compliance based on the notion of dispute settlement to a more nuanced stance, with emphasis on prevention and avoidance of non-compliance.[1]

a Hard-law and soft-law instruments

There is a significant literature on the interaction between so-called ‘hard’ and ‘soft’ law, much of which describes the relation of mutual support and argues that the ‘soft’ law relies on ‘hard’ law or on a ‘hard’ law framework to be effective. Usually, in IEL States negotiate non-binding legal instruments when it is not possible to reach consensus on binding commitments at the international level or when a binding treaty setting specific legal obligations faces obstacles in the Congress or Parliament. The expectation, then, is that soft-law instruments may address new environmental problems rapidly.

Generally, the distinction between hard law and soft law has had a clear effect on the different types of compliance mechanisms. Hard-law instruments in IEL, designed to ensure compliance with international environmental treaties, include a wide range of elements and techniques. Treaty bodies instituted under specific regimes and management by international organisations are often the tools relied upon.

In contrast, soft-law instruments do not entail compulsory enforcement to secure compliance with IEL. They may act in differing ways, such as incentives or disincentives by putting pressure on the defaulting States. Although they lack mechanisms for enforcement, states will seek to maintain good standing and reputation, and wrongdoing states will try to restore their reputation. Equally, soft law in IEL may lay the groundwork for the adoption of hard law. To illustrate, the Stockholm Conference on the Human Environment, held in 1972, nurtured the idea of prevention of environmental harm and fostered the concept of conservation and sustainable development.

Nevertheless, the differentiation between hard and soft law seems artificial as often MEAs embody both types of norms. Boyle has exhaustively examined the functions which soft-law performs in international law.

The categorisation of international soft-law norms varies greatly. Some non-binding legal processes have been considered as ‘elaborative soft law’, consisting of authoritative norms referring to the interpretation, elaboration and application of hard law, and providing a general framework for the development of hard-law norms, like the UNFCCC.[2] Soft-law norms can also demonstrate emergent hard law, paving the way (or even calling) for the adoption of legally binding norms in a specific area of IEL, such as the Rio Declaration. An international declaration concerning environmental protection of a hortatory nature may lead by the development of state practice and opinion juris into customary international law. Soft-law norms can be ‘hardened’ by way of treaty or custom, as happened with environmental access rights and environmental impact assessment in IEL.

In some areas of IEL, soft-law institutions may be more effective than hard-law mechanisms. This is the case in the protection of the marine environment and reduction of transboundary air pollution, amongst others. Soft-law institutions are more advantageous than legally binding ones as they do not require domestic ratification and offer greater flexibility and participation. However, it should be borne in mind that arguably voluntary compliance with soft-law norms does not suffice to transmute soft law into legally binding norms for it falls short of the necessary will. In this event a different law-making process should operate the transformation.

b International agreements

Treaty-negotiations in IEL often become quite lengthy. The international framework highlights the importance of compliance and enforcement with IEL. Reliance on international institutions presents limitations as they should be endowed with appropriate powers and responsibilities under the respective legal framework.

Institutional arrangements for the implementation of MEAs comprise a wide range of mechanisms, as follows: conferences or meetings of the Parties of the specific MEA, treaty Secretariats, advisory bodies and a wide variety of non-compliance procedures/mechanisms (reporting mechanisms tracking progress in the implementation of treaties, financial mechanisms, capacity building programmes). Against this background, the role of international organisations and compliance and enforcement networks in ensuring the effectiveness of the non-compliance procedure is pivotal.

Of the different methods to ensure compliance, the following are most often considered by the mainstream literature: interpretation; research; data collection and/or dissemination; registration, reporting obligations and reporting back; assessments (monitoring and/or reporting) and reviews of performance; management by international organizations; and enforcement.

Interpretation is used in some MEAs as a compliance technique in line with the methods set out in the Vienna Convention on the Law of Treaties (VCLT). This is the case in the Montreal Protocol on Substances that Deplete the Ozone Layer, which relies on interpretation to clarify treaty obligations, particularly those included in Annex A.[3] This has enabled, for instance, the inclusion of an Ozone Depletion Potential figure by way of interpretation. The Meeting of the Parties (MOP) even adopted a non-compliance procedure that was not expressly set up in the Protocol, providing for an amicable resolution of disputes through a decision made by the MOP. Equally, other MEAs refer to treaty interpretation as a compliance tool.

In turn, research plays an important role in the definition of technical aspects in order to determine the extent of environmental harm and the impacts of some processes necessary to identify if parties are treaty-compliant. The UNFCC mentions research as a way to establish the causes, effects and evolution of climate change-related events as well as the economic and social effects of ad-hoc policies and strategies (UNFCCC, Articles 4 (g) and 5). The Arctic Convention contemplates research as a way to help conservation. Similarly, the Biodiversity Convention foresees research as a contribution to conservation and sustainable use of biodiversity. A common practice observed is the setting up of subsidiary bodies tasked with research functions, such as the Subsidiary Body on Scientific, Technical, and Technological Advice.

Data collection and dissemination of research can assist in ensuring compliance. The traditional reporting back obligation often includes information sourced through research and data collection. Reporting activities can also be performed by the organisation on behalf of State Parties. All these activities aim to bring compliance issues to the attention of other states and the international organisation.

Reporting is closely related to the obligation to provide assessments and reviews: for instance, the UNFCCC, which allocates this responsibility on contracting States to submit to the COP an overview of the measures to implement the Convention and a detailed description of anthropogenic emissions determining the sources and the removal of carbon sinks (Articles 4 (l)(a) and (j), 12(l)(a) and (b)).

Panels of Experts, such as those established under the Montreal Protocol, the UNFCCC and the Biodiversity Convention, are envisaged to simplify the process of treaty amendment. These special scientific bodies are particularly helpful to interpret the protocols and scientific annexes. Parties may employ diplomatic or other means to enforce IEL when a party fails to comply with its obligations.

c Market-based mechanisms

Regulatory and market-based perspectives have determined the evolution of IEL and policy. The evolution has gone from a command-and-control legislative approach to the internalisation of environmental costs. Market-mechanisms can be seen as incentives to entice compliance.

Dissimilar patterns in the evolution of IEL have led to various mechanisms. Initiatives to take more advantage of the potential of market mechanisms have paved the way for the emergence of new types of instruments, which impact on the question of compliance.

The idea is that environmental protection requirements should be made an integral part of the economic process, which induces compliance. Analysing the motivations behind compliance, States decide to abide by IEL for numerous

29 reasons.

The emergence of a new paradigm of compliance with IEL represented the shift from the so-called ‘command-and-control’ approach to environmental policy instruments that involve the active participation of private parties: for instance, the question of joint implementation and the Clean Development Mechanisms (CDMs).

The shift from command-and-control to market-based instruments experienced in environmental policy instruments might be the result of the goal to internalise external environmental costs.

d Guidelines issued by international and regional organisations

In the quest to ensure compliance with IEL, non-binding guidelines produced by international and regional organisations support States and non-state actors in the implementation of IEL. Although non-binding, they provide actors with relevant insights in terms of implementation and, sometimes, capacity building.

e Environmental compliance networks

Considered a transnational law phenomenon, environmental compliance networks engage various actors involved in compliance with IEL. The International

29 Harold Hongju Koh, ‘Why Do Nations Obey International Law?* (1997) Faculty Scholarship Series 2101, available at https://digitalcominons.law.yale.edu/fss_papers/2101 accessed 1 April 2020.

Network for Environmental Compliance and Enforcement (INECE) represents an example of a transnational network for assuring environmental compliance with laws designed to protect human health and the environment. INECE is a

unique trans-governmental network dedicated to the three-fold mission of: raising awareness of the importance of environmental compliance and enforcement; strengthening capacity through the regulatory circle to implement and secure compliance with environmental requirements and developing networks for enforcement and compliance cooperation.[4]

The concept of Transnational Legal Orders (TLO) further assists us in understanding the main features of IECR. In the formulation of Halliday and Shaffer, a TLO ‘seeks to produce order in a domain of social activity or an issue area that relevant actors (stakeholders) have construed as a problem of some sort or another’.

A very active network in the international arena is the International Network for Environmental Compliance and Enforcement (INECE) that encompasses environmental compliance and enforcement practitioners devoted to raising awareness of compliance. INECE also operates through regional networks which focus on regional environmental problems.

In Europe, the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL) was established as an international non-profit association of the environmental authorities of the European Union Member States; acceding and candidate countries of the EU, EEA and EFTA countries; and candidates for joining the European Community.

There are other environmental compliance networks operating in other regions, such as the Americas and Asia. The INECE has created various regional networks to strengthen compliance and enforcement networks at all levels of governance (national, regional and global). Regional networks are spread in Europe, the European Accession countries, Eastern Europe, the Caucasus and central Asian region, Australasia, Asia, East Africa, the Arab region, North Africa, North America and Central America. The main goal of the networks is to enable and encourage compliance through a series of techniques, such as data collection, dissemination and fostering public participation in environmental matters.

  • [1] Alan Boyle, ‘Saving the World? Implementation and Enforcement of International Environmental Law through International Institutions’ (1991) 3(2) Journal of Environmental Law, pp. 229-245. 2 Jon Skjærseth, Olav Stokke and Jorgen Wettestad, ‘Soft Law, Hard Law, and Effective Implementation of International Environmental Norms’ (2006) 6(3) Global Environmental Politics, pp. 104-120. 3 Julio Barboza, The Environment, Risk and Liability in International Law (Brill 2010). 4 United Nations Conference on the Human Environment, Stockholm Conference on the Human Environment in 1972, available at https://legal.un.org/avl/ha/dunche/dunche.html accessed 1 April 2020. 5 Alan E. Boyle, ‘Some Reflections on the Relationship of Treaties and Soft Law’ (1999) 48(4) International and Comparative Law Quarterly, pp. 901-913.
  • [2] Christine Chinkin, ‘Normative Development in the International Legal System’, in Dinah Shelton (eds), Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (Oxford University Press 2003), pp. 30-31. 2 Ibid., at 30. 3 Skjatrseth, Stokke and Wettestad (n 17), pp. 104-120. 4 Chinkin (n 21) at 31.
  • [3] See also the resolution of controversies regarding the interpretation or application, available at https://unep.ch/ozone/pdf/Montreal-Protocol2000.pdf accessed 1 April 2020. 2 Lakshman Guruswamy, International Environmental Law in a Nutshell (4th edn West 2012), p. 74. 3 Biodiversity Convention, Article 12. 4 Biodiversity Convention, Article 25.
  • [4] Thomas Hale and David Held (eds), The Handbook of Transnational Governance: Institutions and Innovations (Polity Press 2011). 2 Terence C. Halliday and Gregory Shaffer (eds), Transnational Legal Orders (Cambridge University Press 2015). 3 INECE consists of a partnership of government and non-government enforcement and compliance practitioners from more than 150 countries. Information available at https://www.mece. org/about/ accessed 1 April 2020. 4 IMPEL has 55 members from 36 countries including all EU Member States, North Macedonia, Serbia, Turkey, Iceland, Kosovo, Albania, Switzerland and Norway. 5 Michael Faure, Peter De Smedt, and An Stas (eds), Environmental Enforcement Networks: Concepts, Implementation and Effectiveness (Edward Elgar Publishing 2015). 6 Ibid., at 88.
 
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