Why is it so hard to have an efficient international environmental protection?
International Environnemental Law 2020
International Environmental Law
Extension of prevention, goes beyond the traditional approach of prevention, which is based on scientific knowledge.
Precaution is anticipation of anticipation because of IRREVERSIBILITY.
Origins of the precautionary principle
domestic principle (Germany).
At the international level, the principle started to be formulated in 1987, at the second international conference on the protection of the North Sea. Final declaration: the precautionary principle is necessary even if a causal link has not been established with absolutely clear scientific evidence. idea of the absence of clear scientific evidence.
Real birth of the Precautionary Principle: Rio declaration.
recognition that in case of scientific uncertainty, States have to adopt measures. Precaution is a sophistication of prevention.
Convention on biological diversity (1992). The treaty is based on the idea of precaution.
Climate change convention (1992): precautionary approach is one of the principles that governs the fight against climate change.
Migratory fish stock (1995): More legalistic approach, positive statement. Try to operationalize the precautionary principle.
Cartagena protocol on biosafety (2000): treaty that is dealing with GMOs. Reaffirms the precautionary approach. Shows that soft law can become hard law (here It’s a protocol).
Legal stages of the precautionary approach / principle
Variation in the practice because there is not a strong consensus at the international level.
Hungary / Slovakia (1997): The court has said “vigilance and prevention”. Because precaution was still sensitive.
Hormones case (1998) at the WTO: EU vs USA and Canada. This principle has not necessarily been recognized in the International Law outside of the environmental field (Appellate Body).
Pulp Mill case : the court has been a bit more open minded. “(…) The precautionary approach may be relevant in the interpretation (…)”.
Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the area (Seabed Dispute, 2011): precaution is now becoming customary international law. Precaution is part of customary international law. evolution of IL (soft law becomes customary law).
There is still resistance today, some courts don’t go as far as the international tribunal in the seabed dispute.
Burden of proof (who has to prove that something can cause damage)? Hormone case: the State calling upon a precautionary approach has to prove ; but very hard to prove the uncertainty !
Resistance that still exists in the system, the idea of precaution is not fully integrated yet.
United Nations framework convention on Climate Change (1992):
Adopted as the very first instrument to deal with climate change.
Context of scientific uncertainty only pave the way. Weak objective; lot of uncertainties in the instrument.
Very soft.
Specific differentiation between States regarding obligations: Annex 1 countries, Annex 2 countries, non-Annex 1 countries.
Several layers of differentiation make the system very complex. Not only developed and not developed, but essentially annex 1 and non-annex one.
Framework convention, lots of limits. No quantified obligations e.g. (very soft). But still, it was very revolutionary to have this kind of instrument based on scientific uncertainty.
The Kyoto Protocol
Idea to implement and quantify the obligations of the IPCC.
Art.25 par.1 conditions for the entry into force:
55 state have to ratify (quantitative condition)
These 55 states have to represent 55% of the emission coming from Annex 1 (qualitative condition).
Russia saved the protocol with its acceptance to ratify (55% of the emission was fulfilled).
Difference between Kyoto and Rio:
Annex A and B. A: list of greenhouse gases targeting. In Rio, no mention at all to that. List of the sectors of the economy that are targeted. B: quantified emission limitation or reduction commitment - the obligations are quantified (≠Rio). Tons of carbons that each state in annex B can emit. Now the states have credits of emission, and they can sell them if they don’t use them (that’s why Russia was attracted).
Economic instruments:
Carbon market, art.17
Clean development mechanism (CDM) art.12. Get credit in order to pollute more. P.eg. if France goes to Burkina and implement green investments (to reduce emission of greenhouse gases), it can have credits and use them to pollute more in France or then sell them on the carbon market.
Joint application mechanism, art. 6 : annex 1 state which invest green investments in another annex 1 (usually economies in transition), it won’t get credits, but the reduction is considered as if the state has reduced in his own territory. E.g. Germany invest in Ukraine, but the reduction goes to Germany AND Ukraine.
Bali Action Plan
2007: IPCC and Al Gore received the peace Nobel price.
The Bali Action Plan is a turning point for two reasons:
Par.1 a) global action : for the first time since 1992, the negotiators have accepted that climate change would be an issue for every country, need to go to a long term cooperative action. Paradigm shift. No distinction between Annex 1 and no-Annex 1 (only developed and developing country).
Par.1 c) enhances action on adaptation. We need to think about how countries can adapt to climate change. Before, only mitigation, now adaptation. Mitigation = more pressure, so it has to be adaptation, too. Now the negociations are even more complicated.
The Copenhagen Accord
“Accord”, not agreement. Developing countries and developed countries were very strict about their positions. Developing countries would not agree to make commitments.
At the end of Conference, there was no consensus, so this accord was never adopted. It is a political declaration, but not an agreement.
Doha amendment to the Kyoto Protocol
This amendment only allows Kyoto to be clinically alive (actually it’s dead).
Paris Agreement
Implementation of the UN-FCCC. It’s playing the role of a protocol, but they didn’t want to call it so (USA).
This is the death of a top-down approach in the fight against climate change. Now every State is free to communicate what it is intending to do. Top down = Kyoto = international commitments. Bottom up = every state has to communicate its contribution.
Global agreement: Every state (even the developing). But the counter side is bottom up.
Every state reduces the level that it chooses. The dream of top-down with a strict system of control has ended.
Legal Tools and Techniques
* Conventional instrument
Agreements / treaties concluded between states and governed by international law. Rio was not an agreement (only a declaration). Different kinds:
Framework conventions:
UNFCCC
Conventions that are not entitled framework (but actually are): Convention on biological diversity, Convention of the protection of the ozone layer
Framework = flexibility. Many issues are characterized by scientific uncertainty (e.g. UNFCCC then the issue of climate change had no certainty). A framework convention is very adapted here because it allows to build the pillow of a regime / fix a foundation without going into strict rules / obligations. Whereas traditional conventions are characterized by very strict and detailed procedures.
Soft law instruments.
Protocols:
Strengthen / consolidate / clarify the regime established on framework conventions. Very specific function, always comes with a convention.
Cartagena protocol on biosafety
Montreal protocol (to the Vienna Convention on the protection of the ozone layer)
Hard law instruments. Very detailed rules, obligations and procedure.
Annexes:
Deal with technical aspects, highly scientific issues, e.g. level of chemical composition qualified as dangerous.
* Non-conventional instruments
Sometimes, more impact than treaties. Different kinds:
Declarations that are made at the end of the conference.
Soft law
Reflect the consensus of the international community on the fundamental conception that should have the environmental governments.
Principles: Very important specific tool of IEL. Regulating via principle.
Programmes of action: Agenda 21, applicate till today. Sustainable development goals. Recommendations with respect to different env. issues (water, pollution, species etc.). Given to state in order to better preserve the global environment.
Soft law but still very important.
Monitoring enforcement of environmental obligations
Three levels of control:
Reporting:
The state has to communicate information about the measures adopted.
Convention on the international trade of endangered species : point7 : each party shall prepare periodic reports.
Ozon layer convention, art.5 : transmission of information
Not only IEL, general International public law.
Verification:
Experts go check if a country does what he claims. E.g. reduction of greenhouse gazes as mentioned in the reports.
In the field of environmental protection, verification is very important.
Compliance control:
When there is a gap between reporting and verification (the state has not given the right information). Identify whether there is an issue of compliance.
First treaty to put in place compliance mechanism: Montreal protocol. Today all big env. agreements establish compliance procedure.
IEL has developed very specific compliance procedure. Compliance and non-compliance mechanism.
Soft responsibility mechanism. Some States are taking advantage of that, but if it where punitive, the States would not be part of these conventions (whaling: many States left the convention).
Conclusion : Global Governance and the environment
Global governance is characterized by fragmentation and scientific uncertainty. The international community has not succeeded in putting in place a real system of global governance.
United Nation Charter: No institutional pillar for the protection of the environment.
Stockholm: Very first UN program in charge of environmental protection (UNEP created in a resolution of the General Assembly at the end of Stockholm).
UNEP : was not created as an international organisation; it is only a subsidiary organ of the UN.
- Problem: an institution can’t coordinate when it is not empowered.
Today, no multilateral organisation empowered to deal with the environment. No World Environment Organisation.
Since Rio, idea of greening in the system. A lot of international organizations do sustainable development
The UNEP has no hierarchy or higher place in the system, so it can’t tell for example the Word Bank what to do.
fragmentation, incoherence and competition in the global environmental governance.
Things have changed in 2012. The outcome document of Rio + 20 (“The Future we want”) has finally empowered the UNEP par.88. UNEP has become the environmental institutional pillar ; but not clear what this involve, especially regarding coordination with other institutions.
empowering without empowering = post 2013 agenda. UNEP will still be confronted to problems in the system and the global env. governance will still be characterized by fragmentation.
Positive point : since 2012, the UNEP is no longer composed of only 58 states, it’s universal. Now it’s called UN environment assembly.
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