Priya Ganotra, Student, Maharashtra National Law University, Nagpur
Introduction
International Environment Law has gained a lot of momentum on a global scale in the last few decades. There has been a rise of awareness and concern in the international community towards environmental problems. Previously, nations believed that the environmental issues operated within the domestic sphere only; however, the disclosure of environmental degradation and its impact globally has led to significant international cooperation. One may say that from 1972 to the period to date, the evolution of international environmental law has been innovative and dynamic. For centuries, humans believed that the Earth and the environment are indestructible. It is now that they realize the vulnerability of the planet, and aim towards living in a healthier, sustainable planet. Even though humans and several institutions are largely conscious of environmental threats, a lot of damage has been done. Ascending environmental concerns have resulted in a burst of law-making efforts in the international community. These include the United Nations Stockholm Conference on the Human Environment, 1972, United Nations Convention on the Law of the Sea, 1982, Vienna Convention for the Protection of the Ozone Layer, 1985, including the Montreal Protocol on Substances that Deplete the Ozone Layer, 1987, the United Nations Rio Conference on Environment and Development, 1992, Framework Convention on Climate Change (UNFCCC), 1992, including the Kyoto Protocol, 1997, and the Paris Agreement, 2015 among others.
However, the success of these laws largely depends on adequate enforcement mechanisms. The development and compliance of the legal framework rely primarily on the enforcement mechanisms of environmental law. The enforcement of these principles is imperative to protect the environment from human consequences.
Enforcement mechanisms Of The Law
In simple words, one can say that enforcement means “compelling the obedience to law[1].” Enforcement mechanisms ensure that a law or policy is implemented. There are multiple enforcement mechanisms for international environmental law to cooperate with environmental matters and enforce the legal system. These environmental organizations or instruments help in analyzing and resolving environmental problems.
The United Nations enforcement mechanisms are positive and negative. Positive enforcement mechanisms consist of positive obligations and affirmative actions, whereas negative enforcement mechanisms contain negative obligations where states are refrained from acting in a particular manner. The United Nations system incorporates various types of enforcement mechanisms. Here, an enforcement mechanism is the type of United Nations body that acquires communications or executes the monitoring process[2]. It primarily operates in the domain of multiple international instruments and can be categorized into the following[3], namely-
· Charter-based mechanism,
· Treaty-based mechanism,
· Mechanisms incorporated in United Nations specialized agencies, and
· Rapporteurs appointed by the United Nations General Assembly (hereinafter “General Assembly)
The United Nations plays a significant role in facilitating and coordinating efforts and information exchange of environmental concerns. It is a fact that the efforts undertaken by the United Nations have helped in enhancing cooperation in the international community. Their infrastructure to facilitate this cooperation has led to compliance with international environmental law and its enforcement globally[4].
Talking about enforcement mechanisms of international environmental law, the first organization that comes into the picture is the United Nations Environment Programme (hereinafter “UNEP”). The General Assembly established the UNEP in 1972 as an organization aimed towards promoting cooperation, coordination among states. UNEP is a leading environmental organization in the United Nations system. The UNEP primarily assesses and monitors the global environmental situation from time to time, conducts research, and executes information exchange to evaluate and perform a constant review of the global environment and emerging issues[5]. The UNEP also recommends environmental policies and deliver general policy guidelines concerning the environment for nations.
It is a fact that customary international law, international agreements or treaties, and general law principles are significant international law sources. These principles form the foundation of enforcing international law in the international community. It can be said that the UNEP is a "soft" law when it comes to enforcement of international environmental law[6]. When it comes to strict compliance with environmental principles, the requirement of "hard law" comes into the picture. Hard law generally reflects the obligation of a state to comply with obligations listed in the agreement. It is imperative to understand that treaties in international environmental law framework play a remarkable role in enforcing compliance with environmental principles. This enforcing instrument binds nations to a particular law and aims to obtain ratifying states’ compliance before any harm is done. One example of this is the Long-Range Transboundary Pollution Treaty[7] (hereinafter "LRTAP"). The United Nations Economic Commission for Europe (hereinafter "UNECE") formed the Convention after the Trail Smelter[8]Arbitration that led to the establishment of the "no-harm" principle. The framework agreement in 1979 was signed by thirty states and identified specific measures to be taken by signatories to cut the emission of air pollutants and transboundary air pollution. Another treaty law in the domain of environmental law is the Law of the Sea Convention[9] (hereinafter "LOS"). The LOS is a comprehensive regime of law that gives states the rights and responsibilities concerning their use of the world's oceans. It provides guidelines for businesses, the environment, and managing marine life and natural resources. At present, there are 168 signatories of the Convention on LOS.
Lastly, the United Nations Special Rapporteurs are special procedures undertaken by an independent expert on human rights or any such experts that undertake the responsibility to report and advise on the issue concerned. The United Nations Special Rapporteur (hereinafter “UN Special Rapporteur”) in 2019 released a report on “Safe Climate: Human Rights and the Environment”. The report demonstrates a sustainable environment as a human right and discussed the global climate emergency. The U.N. Special Rapporteur addresses climate change issues and various other integral factors to a clean, safe, and healthy environment. It remarks on the Right to a Healthy Environment of every human and describes the impact of the environment on people's health.
Hence, in the domain of international environmental law, the UNEP, treaty obligations, and special rapporteurs of the United Nations play the role of enforcement mechanisms. They facilitate compliance, coordination, and cooperation in the international community regarding environmental concerns. The United Nations cannot always order or control a member state, but the existence of proper enforcement mechanisms help in wielding substantial power through diplomatic pressure and public opinion. This only helps in acquiring compliance of states and seeking legitimacy for internal principles worldwide. Once compliance culture establishes, states begin to conform to a globally acceptable behaviour even when a specific compliance act may be contrary to a short-term interest in their domestic regime[10].
Existing Hurdles To The Enforcement Mechanism
To ensure the protection of the environment, it is necessary to properly regulate, coordinate, and comply with international policies. The United Nations bears a significant responsibility in the internal community to manage and undertake efforts to protect the global environment. But the existing infrastructure of the current enforcement mechanisms for environmental protection faces certain hurdles that lead to inefficiency and ineffectiveness.
When it comes to UNEP, it is paramount to know that even if UNEP undertakes the primary responsibility to develop guidelines, policies, and safeguarding the environment on a global scale, it does not have the power to enforce it, not create a binding law in this concern. The UNEP can only create general principles, guidelines, deliver reports, and adopt charters and non-binding resolutions. UNEP, as a United Nations Body, is small and inferior to a specialized agency. It is financed via voluntary contributions to the Environmental Fund and is mainly insufficient for funding. Further, the lack of enforcement power leads to a problem of implementation as it is at the discretion of a member state to implement or comply with UNEP's principles or protocols.
Treaty law is a good enforcement mechanism to enforce international environmental law, but it is not free from obstacles. As per the principle of sovereign equality of states, every state enjoys the rights that are inherent to it in full sovereignty and have the absolute power to choose for themselves[11]. The Vienna Convention on the Law of Treaties recognizes the principle of free consent and good faith in the domain of international law[12]. The principle of state sovereignty establishes the need for consent for a state to be bound by a rule or a treaty and so a treaty cannot be bound a state without its consent[13]. Hence, the operation of a treaty requires a pre-requisite consent of a state. The lack of consensus among member states poses a massive hurdle to employing treaty law as a suitable enforcement mechanism of international environmental law. Sometimes treaties are particular and are narrowly tailored. Many times states defend their political identity and physical integrity and wait for proper collective action by other member states concerning a treaty. A state also tries to protect its commercial profit by not becoming a party to a treaty; they are not always ready to give up a tangible benefit for a no real instant reward[14]. This category of an enforcement mechanism also suffers from bureaucracy, controversy, and "international nepotism." There can be international politics or any political pressure that may affect states' willingness to ratify a treaty. This is essential because an international agreement's ratification becomes an apparent means of enforcement, and an act of non-compliance attracts legal punishment.
Lastly, the General Assembly resolutions and special rapporteurs are not legal and have no substantive binding power on states. They can only induce states' moral obligation, give rise to environmental ethics within them, and encourage implementation but not enforce compliance.
Hence, factors like lack of enforcement power to UNEP and other United Nations enforcement instruments, inadequate funding, fear of loss of commercial gain, reluctance within the international to be bound by environmental treaties pose to be constant hindrances to international environmental law.
Criticism
The present enforcement mechanism framework of international environmental law is labelled inadequate. The current structure hasn’t changed since the United Nations Conference on Human Environment of 1972. In December 2015, the Paris Agreement was adopted at the 21st United Nations Climate Change Conference to pressure developing nations to control future emissions, given alarming levels of global warming[15]. But the agreement suffers from similar hurdles as the UNEP. The Paris Agreement is not legally binding and primarily depends on voluntary pledges from states[16]. Further, it lacks proper climate financing due to no particular specific financial support concerning the objective[17]. Similarly, the Bern Convention on the Conservation of European Wildlife and Natural Habitats (hereinafter “Berne Convention”) came as a legal instrumented directed towards the conservation of nature, natural habitats, wildlife, and endangered species. The Berne Convention’s overarching objectives of conservation of nature and wildlife population are well thought. Still, lack consistency as the international legal system consists of independent states who exercise sovereignty and are responsible for their own environmental law commitments. The interpretation of individual state responsibility creates constraints the potential of the instrument in achieving its objective[18].
Coming to UNEP, it was the first conference where the international community, for the first time, came on a common platform to discuss global environmental concerns and develop a plan to deal with the contingencies. However, back then, a proper institutional framework or structure to enforce environmental law was not addressed in the Stockholm Conference. The criticism of UNEP can largely be attributed to how it is not codified and is a mere soft law in the international environmental law domain. It is not unknown that an international agreement takes years to obtain ratification from constituent states. The delay in securing ratification can play a massive role in deteriorating an underlying environmental concern.
Hence, a significant hurdle of enforcing international environmental law is the consent-based approach. The effect of a consent primarily reflects upon the validity of the law or set of rules laid down. Especially when state practice is not devoid of diplomacy in the international domain[19]. This is already co-existing with the issue of inadequate funding towards environmental concerns. The existence of these difficulties only highlights the lack of due diligence, compliance, and can easily worsen the environmental condition and, in some cases, make the damage irreversible.
Conclusion
It can be said the existing framework of international environmental law is primitive despite significant progress in the last few years. Several international legal instruments working towards environmental protection and progress are mainly dependent on state ratification. The law fails to progress due to lack of implementation and enforcement, which impedes any tangible positive outcome in this area. Further, implementing bodies of this law is underfunded and politically weak, which primarily signifies why environmental objectives fall short of their goals. The persistence of these drawbacks even after three decades of environmental efforts is a clear depiction of how far the international community is from achieving environmental harmony.
Years of carelessness requires a rather collective action to undo the damage to the environment and protect the Earth's future, but this requirement persists. There is no representation of any significant departure from the traditional manner of enforcing the law. In my opinion, this restricts the growth of international environmental law. Unless no authority can enforce environmental regulations on states, the current enforcement mechanism is “without teeth”. There is a need to address the vagueness and uncertainty in the ongoing process of enforcing international environmental law. There should be proper awareness of environmental problems at the global scale and encouragement to participate. This participation should avoid any dissimilar linkages and should address common concerns of special members or states. States who do not wish to be a part of this environmental, ethical regime and encourage environmental harmony must be denied any advantages by the international community and the United Nations. Until that happens, we will continue living in a world where environmental problems are second-tier to economic growth and saving the global economy's needs are prioritized over ensuring our future generations' sustainability.
[1] Black’s Law Dictionary 528 (1990). [2] Enforcement Mechanisms, United Nations Economic and Social Commission for Western Asia, available at: https://www.unescwa.org/enforcement-mechanisms, last seen on 15/08/2020. [3] Ibid. [4] Andrew Watson Samaan, Enforcement of International Environmental Treaties: At Analysis, Vol. 5 No.1 Fordham Environmental Law Review, 261, at 263, (2011), available at https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1352&context=elr, last seen on 31/07/2020. [5] Ibid, p.265. [6] Bharat H. Desai, UNEP: A Global Environmental Authority?, Volume 36 Issue 3-4, IOS Press Journal of Environmental Policy and Law, 137, 139, (2006), available at: https://www.iucn.org/sites/dev/files/import/downloads/cel_op_desai3.pdf last seen on 15/08/2020. [7] United Nations Economic Commission for Europe, Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, 18 I.L.M, 1442 (entered into force Mar. 16, 1983). [8] Trail Smelter Arbitration (U.S.A. v. Canada), 3. R.I.A.A. 1905, 1965 (1938, 1941). [9] United Nations Treaty Series, United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833, U.N.T.S. 397 (entered into force 16 Nov. 1994). [10] Catherine Tinker, Environmental Planet Management by the United Nations: An Idea Whose Time Has Not Yet Come?, New York University Journal Of International Law And Politics, 793, 796, (1990). [11] U.N. General Assembly, Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations, Sess. 25, U.N. Document A/RES/2625(XXV), available at: https://www.un.org/ruleoflaw/files/3dda1f104.pdf last seen 15/08/2020. [12] Vienna Convention on the Law of Treaties, United Nations Treaty Series, U.N. Document U.N.T.S Vol. 1155 p.331, available at https://www.oas.org/dil/Vienna_Convention_on_the_Law_of_Treaties.pdf last seen 15/08/2020. [13] North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark, Federal Republic of Germany v. Netherlands), 1969 I.C.J p. 3 (20 February, 1969). [14] See Supra Note 4, p. 277. [15] Paris Agreement, United Nations Framework Convention on Climate Change, U.N. Document FCCC/CP/2015/10/Add available at https://unfccc.int/resource/docs/2015/cop21/eng/10a01.pdf last seen on 15/08/2020. [16] Raymond Clemencon, The Two Sides of the Paris Climate Agreement: Dismal Failure or Historic Breakthrough, Vol. 25 (1) Issue 3-24, Journal of Environment & Development, 3, 4, (2016) available at https://journals.sagepub.com/doi/10.1177/1070496516631362 last seen 15/08/2020. [17] Ibid, at 10. [18] Arie Trouwborst, Floor m. Fleurke, John D. C. Linnell, Norway’s Wolf Policy and the Bern Convention on European Wildlife: Avoiding the “Manifestly Absurd”, Vol. 20, Journal of International Wildlife & Policy (2017), 155, 164, available at https://www.tandfonline.com/doi/pdf/10.1080/13880292.2017.1346357 last seen 15/08/2020. [19] Pierre-Marie Dupuy, Soft Law and the International Law of the Environment, Vol. 12 Issue 2, Michigan Journal of International Law, 420, 435, (1990) available at https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1648&context=mjil last seen 15/08/2020.
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