International Environmental Governance: Ensuring Compliance

SCHOOL OF INTERNATIONAL STUDIES (SOIS)

COLLEGE OF LAW, GOVERNMENT AND INTERNATIONAL STUDIES

GFLA 3133 INTERNATINAL ENVIRONMENTAL LAW

SEMESTER 2018/2019, SESSION 1 (A181)

GROUP ASSIGNMENT:

International Environmental Governance: Ensuring Compliance

LECTURER: DR RATNARIA WAHID

NO GROUP MEMBERS MATRIC NO

1. NUR ADIBA AIN BINTI SHAMSUDDIN 242830

2. NUR HAYATI MAHIRAH BINTI SHAHINI 243175

3. NUR AZLEN BINTI OTHMAN 242827

Contents

1.0 Introduction 

2.0 Ensuring Compliance 

3.0 Compliance Control 

3.1 Case study: Montreal Protection

3.2 Case study: Kyoto Protocol

4.0 International mechanisms to ensure compliance and enforcement

4.1 Compliance Assistance

5.0  Environmental Dispute Settlement

6.0 Conclusion

Conclusion 

References 

1.0 INTRODUCTION

International environmental governance is a well-established field of research for commentators and policymakers alike. Whilst academic enquiry focuses primarily on the effectiveness and legitimacy of international environmental governance, policymakers are more directly concerned with reform. No less than four major international environmental governance reform processes and reviews have been undertaken during the last ten years and numerous smaller studies have been carried out by MEAs acting individually or collectively. International Environmental Governance can be defined as “the sum of organizations, policy instruments, financing mechanisms, rules, procedures and norms that regulate the processes of global environmental protection.”

2.0 ENSURING COMPLIANCE

Compliance mechanisms can be found in treaties regulating such diverse issues as human rights, disarmament law, and environmental law. Compliance with norms of international environmental law, in particular those included in MEAs, has been of interest for many years, both from a theoretical and practical point of view. Compliance with MEAs is a matter that differs greatly from compliance with domestic environmental rules. Compliance with MEAs is a matter that differs greatly from compliance with domestic environmental rules. There are a number of theories that attempt to address the complex issues involved in the legal basis of compliance as well as the best methods to ensure it, ranging from facilitative to compulsory techniques. The theory of compliance comprises the debate on the extent of functions of the organs established by MEAs (such as the compliance committees Conference of the Parties (COPs), Meeting of the Parties (MOPs), or both).

3.0 COMPLIANCE CONTROL

Compliance control appears to be in need of strong, effective and efficient international institutions or mechanisms (these two notions are used interchangeably), because in each and every case of non-compliance the tension between sovereignty and interdependence, between political convenience and respect for legal obligations, is likely to arise. Compliance control to be successful has to be based on the shared political will of all participants in a specific regime. Control takes place only to the extent that it is accepted by those to be controlled.

There are already a great number of diverse compliance procedures attached to various MEAs, such as in the 1987 Montreal Protocol on Substances That Deplete the Ozone Layer and the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change. It should be kept in mind that MEAs and noncompliance procedures do not exist in a normative vacuum. Compliance theories are linked with general international law; for instance, in terms of the question of the use of countermeasures in compliance control and material breach of treaties. Even nonbinding norms may have a role in promoting compliance with obligations undertaken under MEAs. In practice, environmental compliance and the gradual evolution of compliance procedures in international environmental law is one of most vibrant and stimulating subject matters in international law and is still evolving.

3.1 1987 Montreal Protocol on Substances That Deplete the Ozone Layer

The Montreal Protocol, finalized in 1987, is a global agreement to protect the stratospheric ozone layer by phasing out the production and consumption of ozone-depleting substances (ODS). The stratospheric ozone layer filters out harmful ultraviolet radiation, which is associated with an increased prevalence of skin cancer and cataracts, reduced agricultural productivity, and disruption of marine ecosystems. The United States ratified the Montreal Protocol in 1988 and has joined four subsequent amendments. The United States has been a leader within the Protocol throughout its existence, and has taken strong domestic action to phase out the production and consumption of ODS such as chlorofluorocarbons (CFCs) and halons.

The Montreal Protocol on Substances That Deplete the Ozone Layer

*sources: U.S Department of State website

The Montreal Protocol has proven to be innovative and successful, and is the first treaty to achieve universal ratification by all countries in the world. Leveraging worldwide participation, the Montreal Protocol has sent clear signals to the global market and placed the ozone layer, which was in peril, on a path to repair. Full implementation of the Montreal Protocol is expected to result in avoidance of more than 280 million cases of skin cancer, approximately 1.6 million skin cancer deaths, and more than 45 million cases of cataracts in the United States alone by the end of the century, with even greater benefits worldwide. The Montreal Protocol’s Scientific Assessment Panel estimates that with implementation of the Montreal Protocol we can expect near complete recovery of the ozone layer by the middle of the 21st century. Further information on the science of the Stratospheric Ozone Layer can be found on the NASA and NOAA websites, and information on the U.S. domestic implementation of the Montreal Protocol can be found on the EPA website.

3.2 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change.

In December 1997, in Kyoto, Japan, over 160 parties to the 1992 United Nations Framework Convention on Climate Change (FCCC or Convention) adopted the Kyoto Protocol, which, for the first time, establishes legally binding limits for industrialized countries on emissions of carbon dioxide and other “greenhouse gases.” The Kyoto Protocol (the Protocol) is quite complex, reflecting the complicated political, economic, scientific and legal issues raised by human-induced climate change. The result of more than two years of preparatory discussions and eleven days of often-intense negotiations in Kyoto, the Protocol will be opened for signature in March 1998 for one year, although countries may accede to it after that period. It will enter into force ninety days after at least fifty-five parties to the FCCC, encompassing FCCC Annex I parties that accounted in total for at least 55 percent of the total emissions for 1990 of carbon dioxide (CO2) of Annex I parties, have ratified, accepted, approved or acceded to the Protocol.

The Kyoto Protocol is an international agreement linked to the United Nations Framework Convention on Climate Change, which commits its Parties by setting internationally binding emission reduction targets. Recognizing that developed countries are principally responsible for the current high levels of GHG emissions in the atmosphere as a result of more than 150 years of industrial activity, the Protocol places a heavier burden on developed nations under the principle of "common but differentiated responsibilities." The Kyoto Protocol was adopted in Kyoto, Japan, on 11 December 1997 and entered into force on 16 February 2005. The detailed rules for the implementation of the Protocol were adopted at COP 7 in Marrakesh, Morocco, in 2001, and are referred to as the "Marrakesh Accords." Its first commitment period started in 2008 and ended in 2012.

4.0 International Mechanism to ensure compliance

IEG also foresees the mechanisms to address compliance and enforcement of international environmental law. Compliance with and enforcement of MEA obligations raise a number of difficult issues. The Guidelines on Compliance with and Enforcement of Multilateral Environmental Agreements (UN Environment Programed) provide a useful distinction between the terms compliance and enforcement at international and national level. If a State persistently fails to implement its international obligations, there are only limited mechanisms for enforcing compliance at the international level. Cases of noncompliance are frequently settled by negotiation and compromise among the Parties to a MEA. The most important fora for such negotiations are the regular meetings of the Parties, often referred to as the Conference of the Parties (COP). A COP offers an opportunity to discuss and resolve differences, provide guidance on interpretation as well as to adopt specific mechanisms to deal with compliance issues, such as compliance committees. These approaches are a good mechanism to put pressure on State vis-à-vis their obligations and reputation within the international community

Many MEAs, such as the Montreal Protocol on Substances that Deplete the Ozone Layer, the Convention on International Trade in Endangered Species of Wild Fauna and Flora or the Basel Convention on the Control of Transboundary Movements of Wastes and their Disposal, have developed compliance procedures. This was, in part, a response to the fact that the formal dispute settlement mechanisms under MEAs were not being used despite worrying levels of non-compliance. Compliance mechanisms vary from MEA to MEA as they are tailored to the specific circumstances of that agreement.

4.1 Compliance Assistance

Compliance assistance is the body that ensures the laws comply with regulation. It plays a fundamental role in building the foundation for the rule of law, good governance, and sustainable development. In addition, compliance assistance exists to provide services that increase environmental knowledge and change behaviours. Giving the example of the a) Environmental Compliance Assistance Centre for Micro-Small to Medium Enterprises Department of Environment and Natural (Philippines) and b) Division of Compliance Assistance (DCA) in Kentucky, U.S.

a) ECAC (Philippines)

According to Department of Trade and Industry Philippines, 99.6% registered enterprises in the Philippines 69.9% jobs generated by multi-SMEs. They contribute 32% of the total economic output of the Philippines. Thus, the steady growth means that multi-SMEs widely contributes significant impacts to the environment. Hence, multi-SMEs are mandated by the government to comply with environmental laws, rules, regulations and standards.

The main objective of ECAC is to assist multi-SMEs comply with environmental laws, regulations and standards Republic Act 9275 Philippine Clean Water Act of 2004 Republic Act 8749 Philippine Clean Air Act of 1999 Republic Act 6969 Toxic Substances, Hazardous and Nuclear Waste Control Act of 1990 Presidential Decree 1586 Environmental Impact Statement (EIS) Statement of 1978. Thus, how the ECAC assist? ECAC gives information on various environmental compliance matters; 1) Points out environmental management responsibilities of multi-SMEs 2) Provides information on how to comply with applicable environmental laws, regulations and standards.

Seminar conducted by ECAC in 2017

b) DCA (Kentucky)

The Division of Compliance Assistance (DCA) exists to provide services that increase environmental knowledge and encourage behavioural changes. Importantly, DCA aims to improve regulatory compliance, achieve exceptional performance and enhance the quality of Kentucky’s environment and communities. Below are the Principles of DCA:

1. Simplifying Compliance

 DCA assist and educate regulated entities so they understand and can comply with their environmental obligations.

2. Living Greener, Growing Stronger

 DCA assist, educate and encourage Kentucky’s citizens, communities and businesses so they make informed choices that value Kentucky’s environment and create healthier, stronger communities.

3. Certifying Professionals

 DCA certify select environmental professionals to maximize appropriate actions and effective operations at regulated locations.

Waste Management Introduction & Compliance Workshop at Kentucky EPA

5.0 Environmental Dispute Settlement

Dispute Settlement Procedures (DSPs) under Multilateral Environmental Agreements (MEAs)

Before proceeding further and focusing on the significant aspects of DSPs under MEAs, first of all, it should be underlined that, all MEAs do not contain “the complete model” (Treves, 2009, pp. 499-501) of dispute settlement including both judicial and diplomatic procedures.

There can be three distinct group agreements according to their inclusion these procedures: First group consists of all procedures completely, e.g. the Vienna Convention for the Protection of Ozone Layer, art. 11 (applicable also to the Montreal Protocol etc.) the United Nations Framework Convention on Climate Change (UNFCCC), art.14 (applicable also to the Kyoto Protocol) etc. Second group adopts the negotiation and submission of the dispute to the arbitration and judicial settlement, e.g. the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, usually known as the Aarhus Convention, art. 16, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, usually known as the Basel Convention, art. 20, etc.).

Third group involves merely negotiation, e.g. the Convention on Long-Range Transboundary Air Pollution, often abbreviated as Air Pollution or CLRTAP, art. 13 and its four protocols, the European Pollutant Emission Register (EPER) Protocol, art.7, the first Sulphur Protocol, art.8, the Protocol concerning the Control of Emissions of Nitrogen Oxides or their Transboundary Fluxes (NOx Protocol), art. 13, the Protocol concerning the Control of Emissions of Volatile Organic Compounds or their Transboundary Fluxes (VOC Protocol), art. 12) (Treves, 2009, pp. 499-501).

Also, the provisions included to the MEAs for settling disputes can differ according to the features of different MEAs, so, it becomes necessary to examine every MEA with its own conditions. However, as the aim of this paper is to draw a general framework on the MEAs’ DSPs, but not exhaustively deal with the various aspects of each of these procedures inserted into different MEAs, each procedure under “the complete model” (Treves, 2009, pp. 499-501) of dispute settlement will be briefly explained with its significant aspects in this part.

On the other hand, trade in wildlife is no longer an emerging issue. The scale and nature of the challenge has been recognized in decisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the UN Commission on Crime Prevention and Criminal Justice, the Economic and Social Council (ECOSOC), the UN Security Council, UN General Assembly, INTERPOL, the World Customs Organisation (WCO) and others, including at national levels. Highlevel political conferences have also addressed the issue, most notably recently convened in Botswana and Paris (December 2013), London (February 2014), and Dar es Salaam (May 2014).

However, the responses in terms of impact on the ground are still behind the scale and development of the threat to wildlife, including forests, as well as increasingly also development goals. The illegal trade in fauna and flora excluding timber, charcoal and fisheries, has been estimated by different sources to be worth 7–23 billion dollars annually. The trade involves a wide range of species including insects, reptiles, amphibians, fish and mammals. It concerns both live and dead specimens or products thereof, used for pharmaceutical, food, pets, ornamental or traditional medicinal purposes.

The consequences are increasingly evident: illegal wildlife trafficking constitutes a barrier to the achievement of both sustainable development and environmental sustainability. As reflected in a range of decisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, the UN Office for Drugs and Crime, the UN Commission on Crime Prevention and Criminal Justice, INTERPOL, the UN Security Council, and others, the illegal trade in wildlife and environmental crime are now widely recognized as significant threats on a global scale, to be tackled with urgency.

6.0 Conclusion

Since 1960s, it wasn’t just a response to environmental problem, it also part of commitment to societies or just more fair and more democractic, What is required Is the creation of legal frameworks which ensure of ongoing management of an environmental problem in as fair and just a way as possible. The principles and the rules of general application which have been described has provided a framework to shape the future development of international environmental law. Each principle is important and has its own particular role. From what we have learn, precautionary principle is a critical principle and its impact over time should not be understated. The extent to which it is applied at the international level will serve as a barometer to measure future developments in international environmental law.

Recommendations to cknowledge the multiple dimensions of environmental crime and its serious impact on the environment and sustainable development goals, and help support and balance the appropriate coordination and sharing of information from stakeholders, such as civil society, private sector, indigenous peoples, governments and a wider UN system with the need and recognition of also the role of law enforcement in good environmental governance.

Implement a comprehensive coordinated UN system and national approach to environmental crime by helping coordinate efforts on environmental legislation and regulations, poverty alleviation and development support with responses from the enforcement sector to curb environmental crime, as part of a holistic approach to challenge the serious threat to both the environment and sustainable development caused by the continued environmental crime. Support UNEP as the global environmental authority to address the serious and rising environmental impacts of environmental crime and to engage the relevant coordination mechanisms of the UN system to support countries and national, regional and international law enforcement agencies with relevant environmental information to facilitate their efforts to combat the illegal trade in wildlife species and their products, as well as illegal logging and illegal trade in timber.

Strengthen support to INTERPOL, UNODC, WCO and CITES, such as through ICCWC as well as individual programmes, to enable them to support member states and other relevant stakeholders to further identify, develop and implement the most appropriate responses to environmental crime, reflecting and acknowledging the serious threats and effects it has on environmental governance, wildlife, ecosystems and the services it provides.

Invest in capacity building and technological support to national environment, wildlife and law enforcement agencies to enable them to further protect key populations of iconic endangered species threatened by poaching, such as but not limited to, rhinos, tigers and the African elephant as a necessary response to safeguard these species from poaching, alongside renewed efforts to strengthening habitat protection and management. Strengthen environmental legislation, compliance and awareness and call upon enforcement agencies and countries to reduce the role of illicit trade and taxing of forest and wildlife products for threat finance to non-state armed groups and terrorism. Strengthen specifically the research on the possible role of trade in wildlife and timber products including charcoal for threat finance and identify gaps in environmental legislation that may facilitate this.