Law Analysis
Local implementation of international environmental norms
Md. Saiful Karim
Implementation of international legal norms refers to the legislative, institutional and practical actions that states take to make international law operative in their national legal system. Implementation therefore establishes the relationship between the national and international legal systems. Compliance of international norms is the aim of establishing this link. Compliance is generally defined as the extent to which the behaviour of a state, party to an international treaty, actually conforms to the conditions set out in the treaty. Compliance may be divided into two heads such as compliance with the treaty's explicit rules and compliance with the treaty's objectives. On the other hand enforcement may be defined as “compelling of obedience” to law. In international law context enforcement means the measures taken to fuller implementation of international legal norms in domestic arena.
Domestic enforcement or compliance of environmental protection norms can be divided into two broad dimensions namely enforcement of national laws related to environment and establishing proper mechanism for enforcement of international environmental law. Both the dimensions are indivisibly interlinked with each other. International law is enforced in state territory by national law at the same time international law influences the progressive development of national environmental legal regime.
Traditional international law scholars consider state responsibility and dispute resolution by competent authority as the only way of enforcement of international environmental law. But like other branch of international law enforcement of international environmental low is also notoriously difficult as judicial dispute resolution in international arena entirely depends on the consent of the party to be sued. This deficiency of enforcement led some scholars to think international environmental law as a largely sanction-less creation "full of sound and fury, signifying nothing," the "jurisprudential equivalent of vapourware. " Some scholars go further and say “if international law stands at the vanishing point of law, then international environmental law, despite the repetitious tomes that appear on it, stands at the vanishing point of international law. It is a subject full of pious prescriptions but little bite.” This difficulty led the global community to search alternative mechanisms for enforcement of international environmental law beyond the custody of old fashioned command and control approach.
Over the years a wide range of techniques and forms of enforcement evolved which include transmission of information, monitoring, verification, and inspection. Another commonly used mechanism is monitoring national compliance with the obligations undertaken under the environmental agreement by review mechanism which is primarily based on national self-reporting, although some conventions provide for independent means of gathering information. Another popular mechanism for obtaining participation and ensure compliance is "carrot and stick" approach. This mechanism is used in Montreal Protocol on Substances that Deplete the Ozone Layer under which trade restrictions can be imposed on imports to and exports from non-parties and a fund has been created to assist countries in complying with their obligations. Again Kyoto Protocol of United Nations Framework Convention on Climate Change provides a number of mechanism including cooperative implementation, emissions trading, and technology transfer to assist parties to meet their commitments.
Apart from these mechanisms, watchdog roles of non government organisations, scientific institutions, intergovernmental organisations, increasing public participation in environmental decisions making process are also playing a significant role in enforcement of international environmental law. In some cases for including all necessary players on board by divorcing orthodox command and control mechanism international environmental law created different types of mechanisms which I believe have their own intrinsic exquisiteness. These mechanisms not only give us solution of some critical problems but also created progressive means of resource transfer and allocation to developing countries.
Using competent international financial institutions is another way of enforcement of international environmental law. For example, before financing a project, the World Bank considers potential environmental harm. Therefore for this purpose it has established policies and guidelines to review each project from an environmental perspective. In this respect it endeavours to ensure that each project affecting renewable natural resources does not exceed the regenerative capacities of environment. It refuses to finance the projects which will cause irreversible or severe environmental deterioration and projects which are implemented without acceptable mitigatory measures. Furthermore the World Bank will refuse to finance any project which breaches any international environmental agreement to which the member country concerned is a party. In addition to these it also will not finance any project that would significantly modify natural areas designated by international conventions as World Heritage Sites or Biosphere Reserves, or designated by national legislation as national parks.
In 1996 the World Bank approved disclosure of emissions data as an enforcement technique, stating that this technique is especially useful for developing countries that have weak enforcement of their environmental laws. Again The Global Environment Facility (GEF) established in 1991 to provide financing for incremental costs of projects with global environmental benefits in four areas: biodiversity, climate change, international waters, and the ozone layer. The World Bank, the United Nations Environment Programme (UNEP) and the United Nations Development Programme (UNDP) are the implementing agencies of the GEF and World Bank also act as trustee of this fund. By providing an economic incentive for developing countries to comply with international environmental treaties, the GEF is an example of global approach based on the principles of cooperation and global environmental partnership.
Disproving others' views not necessarily proves any one's own opinion. The skeptics of international environmental law themselves failed to come out with a reasonable and equally efficacious alternative of international environmental law for protection of global environment. So I believe legal researchers should try to find some amicable solutions of the problems rather relentlessly engaging them in identifying deficiency of international environmental law. If we evaluate the international environmental law from an orthodox parameter we will not do real justice to the system and people behind it. It is not a child's play to make an environmental legal order in a world of sovereign countries divided into several hundred political boundaries although natural environment knows no boundary.
We should be aware of how appreciably international environmental law influence national environmental protection system in last few decades. One glaring example can be that before 1972 United Nations Conference on Human Environment and Stockholm Deceleration on Human Environment how many countries had separate Ministry/Department/National Agency for environment and how many countries now have it? Now-a-days separate government agency for conservation of environment is a common trend all over the world which was totally alien in the vocabulary of public administration before Stockholm Declaration. In some countries whole environmental legal regime is a post Stockholm phenomenon and direct upshot of international environmental law movement. In this juncture I like to conclude with some words from Joel B. Eisen:
"The recent and rapid developments in international environmental law can influence our domestic system of environmental law. We should abandon any conceptual separation of the two bodies of law, and instead think of the two as having evolved into a new relationship in which international environmental law can and does play a role in the development and refinement of domestic law."
The writer is a lawyer with the Bangladesh Environmental Lawyers Association (BELA), presently a Research Scholar at the Faculty of Law, National University of Singapore.
