ABSTRACT
This paper discusses the historical development of International Environmental Law with a focus on the international and national instruments created over the years to address climate change and other related issues. This theoretical framework serves as an outline to better understand these laws' effectiveness in addressing environmental matters. For our analysis, two "opposite" countries have been compared: The United States of America and China. The former has a more structured legal system, which helps to implement several legal measures toward climate and environmental protection. However, the widespread inability to effectively implement national legislation is hampering the efforts to tackle environmental concerns. For what concerns China, the country has a less consolidated legal system, but since China is a Party of the UNFCCC, some provisions have been implemented.
Nevertheless, rampant corruption might erode the breakthroughs. At least in part, problems both at the national and international levels are to blame for the failure of enforcement of the global environmental rule of law. The lack of efficient enforcement mechanisms on the international level and the lack of proper rules at the state level contribute to this failure
Authors: Klarisa Stafa (Junior Researcher), Erica Trotta (Junior Researcher).
Mondo Internazionale, G.E.O. - Environment
1. Introduction: The development of environmental law
One of the most significant changes in recent decades has been the increase in public concern for the environment on a global scale. Society and the state of the environment are now more connected than ever because of globalisation, therefore Environmental protection is becoming more closely linked to national security, trade, and human rights. At the same time, environmental issues are becoming more global and constitute a significant threat to the planet's health. Thus, it has become crucial for governments worldwide to create more effective environmental laws and legal frameworks to steer economic development and progress toward environmental sustainability.
International environmental law has significantly changed during the past 40 years, growing along with the rise in environmental dangers. The concept that ecosystems and other significant natural resources should be the subject of legislative protection was not widely accepted before the late 19th century. Environmental law did not have separate domestic or international legislation prior to the 1960s. Even in the 1970s, there were only a handful of multilateral accords about environmental law, and most nations lacked environmental legislation (Law Times Journal, 2020). Nowadays, there are countless bilateral and international environmental accords, and every country has at least one environmental law or set of rules.Along with states, several other players influence the creation, application, and observance of international environmental law (Weiss, 2011).
There can be distinguished three different areas to study the development of international environmental law: the Traditional Period (1900–1972), the Modern Period (1972–1992), and the Post-Modern Period (1992-2012). These periods correspond to the years when the structure of International Environmental Law evolved and solidified (Law Times Journal, 2011).
1.1. 1900-1972: The First Hints of International Environmental Law
International Environment Law grounds its roots in managing natural resources, bilateral and regional regulatory agreements between states and dispute resolution plans regarding the shared use of watercourses. (Sand, 2015). Therefore, the first policy motives for such lawmaking were blatantly utilitarian and self-serving goals. However, the twentieth century also saw the introduction of a sort of "conservation ethics" to the treaty agenda, reflecting the international community's fresh concerns for preserving the shared natural heritage and averting environmental threats worldwide (Sand, 2015). One of the first steps that were taken in this direction was President Theodore Roosevelt’s failed attempt to hold the International Conservation Conference at The Hague in 1909 (Driesen, 2003).. Environmental law later made strides with the London Convention Relative to the Preservation of Fauna and Flora in Their Natural State in 1933 and the Washington Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere in 1940 (Annecoos, 2009). In 1948 the International Union for the Protection of Nature was established and became an essential resource for upcoming treaty efforts (Sand, 2015). The Ramsar Convention on Wetlands of International Importance, Particularly as Waterfowl Habitat, and the Paris Convention for the Protection of the World Cultural and Natural Heritage, both adopted in 1971, were joint initiatives of the United Nations Educational, Scientific and Cultural Organization (UNESCO) (Sand, 2015). These conventions, together with other UN specialised agencies and bodies, increased the already available pool of sectoral international law and governance practice and created a solid foundation for environmental law that was prepared to evolve and mature.
1.2. 1972-1992: The Modern Era
The inaugural UN Conference on the Human Environment, held in Stockholm on June 5, 1972, and now recognised as World Environment Day, marks the dawn of "modern" international environmental legislation (Sand, 2015) since for the first-time countries gathered to recognise and confront environmental issues. The idea of sustainable development was developed at this conference, which was centred on the tension between economic progress and environmental conservation. (Pandey, 2020). This conference resulted in the creation of the United Nations Environment Programme (UNEP). The Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matters, the Convention for the Protection of World Cultural and Natural Heritage, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) are other significant multilateral agreements connected to the Stockholm Conference from 1972 and 1973, respectively. These accords served as the foundation for early international environmental legislation and, together with the UN Conference, helped pave the way for its advancement (Pandey, 2020). Most importantly, the modern era marked a new tendency for international environmental law by encouraging the creation of "soft law," a revolutionary kind of worldwide consensus legislation-making (Sand, 2015). More than 1000 international legal instruments were created over the following 20 years, including several international environmental agreements (Pandey, 2020). These agreements established a system of monitoring and reporting specific environmental threats. They also had their instruments to help countries implement the agreements and separate protocols for negotiating international agreements on issues like transboundary air pollution, ozone, climate change, etc.
1.3. 1992- 2012: The Post-Modern Era
When countries gathered in Rio de Janeiro, Brazil, in June 1992 to commemorate the twentieth anniversary of the Stockholm Conference in 1972, the Post-Modern Era officially began. In the previous era, the world witnessed a massive proliferation of new multilateral environmental instruments and norms. Moreover, the institutional framework for carrying out the numerous treaties was highly decentralised: it comprised a network of conferences of the parties that were essentially autonomous and were typically hosted by various existing international organisations and connected by inter-agency coordination agreements (Chambers, 2008). For these reasons, the Rio Conference was focused on the 'effectiveness' of the existing international legal instruments (Sand, 2015). The Rio Conference resulted in the creation of four key documents of international environmental law: the Rio Declaration on Environment and Development, which served as the foundation for the design of new international environmental law principles; the Convention on Biodiversity; the UN Framework Convention on Climate Change; and Agenda 21 (Pandey, 2020). International environmental law and policy have undergone significant changes since the Rio Conference. It has grown more substantial and thorough. Old norms and principles have been reinterpreted while new ones have evolved. International concerns have taken centre stage in place of local ones. The significant developments since the Rio Conference can be classified into four main categories (Pandey, 2020):
· The integration of international environmental law with other legal systems,
· The emergence of actors other than States that are influencing international environmental law, such as NGOs,
· Creation of new international standards,
· Stress on implementation of international environmental treaties.
2. Main instruments to address Environmental issues
As stated before, all governments adopted the UN Framework Convention on Climate Change during the post-modern era. By doing this, they started on one of the most pressing environmental issues currently confronting humanity. On December 11, 1997, countries made a significant step by approving the historic Kyoto Protocol. In fact, built on the Convention's framework, the Protocol pioneered new territory with its legally binding restrictions on greenhouse gas emissions and its creative "mechanisms" intended to lower the cost of emissions regulation (UNFCCC). The Kyoto Protocol is one of the most important instruments of international climate policy, but it is not the only one.
2.1.International agreements
Since 1979 several hundred international agreements have been concluded. Even though many of these agreements are bilateral or trilateral, and thus are binding only for those states that have ratified them, they are crucial to the global environmental system. The IEA Database Project has identified over 3,000 international environmental instruments, including the fundamental conventions (IEA). This section will focus on the most important agreements, namely the Montreal Protocol, UN Framework Convention on Climate Change (UNFCCC), The Kyoto Protocol, and the Paris Agreement.
Montreal Protocol, 1987
The Montreal Protocol was a landmark in the environmental agreements field since it served as a template for subsequent climate change diplomacy, even though it was not designed to address the subject. Once all the countries adopted the pact, they were obligated to stop producing chemicals that harm the ozone layer, such as chlorofluorocarbons (CFCs). The procedure has successfully eliminated nearly 99 percent of these ozone-depleting chemicals. In addition, through the Kigali Amendment, parties agreed in 2016 to cut back on the production of hydrofluorocarbons (HFCs), potent greenhouse gases that contribute to climate change (Maizland, 2021).
UN Framework Convention on Climate Change (UNFCCC), 1992
On March 21, 1994, the UNFCCC went into force. Nowadays, almost every country worldwide is a member of it. Parties to the Convention are any of the 198 nations that have ratified it. The UNFCCC's ultimate goal is to prevent "dangerous" human involvement with the climate system (UNFCCC). It was the first global treaty that addressed climate change. It is also essential since it created the system of the Conference of the Parties, or COP, as a yearly venue for international negotiations to stabilise the atmospheric concentration of greenhouse gases. These summits resulted in the Kyoto Protocol and the Paris Agreement (Maizland, 2021).
The Kyoto Protocol (1997)
On December 11, 1997, the Kyoto Protocol was formally adopted. Due delays in its ratification, it finally became effective on February 16, 2005. One hundred ninety-two countries are currently Parties of the Kyoto Protocol. The Kyoto Protocol, in brief, operationalises the United Nations Framework Convention on Climate Change by requiring industrialised nations and economies in transition to set and achieve individual emission reduction targets for greenhouse gases (GHG). The Convention only requires governments to develop mitigation-related policies and procedures and regularly report (UNFCCC).
The Paris Agreement (2015)
The Paris Agreement on climate change is a binding international agreement. It was accepted by 196 Parties at COP 21 in Paris on December 12, 2015, and it went into force on November 4, 2016. Its objective is to keep global warming below 2 degrees Celsius, ideally below 1.5, relative to pre-industrial levels. Countries want to reach the global greenhouse gas emissions peak as soon as feasible to build a climate-neutral world by the middle of the century to meet this long-term temperature objective. The Paris Pact is a turning point in the global climate change process because it is the first time a legally enforceable agreement unites all countries in the fight against climate change and attempts to adapt to its effects (UNFCCC).
2.2. Domestic level: how the international instruments translate into national policies
Countries differ significantly in their institutional frameworks, resource endowments, industrialisation degrees, and highly politicised situations. Therefore their policymakers will unavoidably consider diverse instruments. When determining their ideal (and practicable) portfolio of greenhouse policy tools, tates must consider many criteria :
- Environmental effectiveness: it refers to the degree to which a policy achieves its intended environmental purpose or produces favourable environmental results;
- Cost-effectiveness: the degree to which a policy may accomplish its goals at the lowest possible cost to society;
- Distributional issues: which include, among other things, justice and equity, are the incidence or distributional effects of a policy;
- Institutional feasibility is the likelihood of a policy instrument being accepted, approved, and put into practice.
So far, various tools have been employed in multiple world places to handle environmental issues.
· Regulations and standards: Governments often impose environmental regulations, including banning particular activities, demanding regular monitoring, obtaining licenses for using land or water, and more. In addition, different standards apply depending on the environmental action type (Nath, 2009).
· Taxes and charges: Environmental taxes support the "polluter pays principle," which states that the expenses of pollution prevention and control should be reflected in the cost and output of products and services that produce or consume pollution (OECD)
· Tradable permits: an economic policy tool that allows for the open or restricted exchange of permits to use certain resources or release pollutants. Examples include tradeable depletion rights to mining concessions, marketable discharge licenses for water-borne effluents, and individual transferable quotas in fisheries (EEA).
· Subsidies and Incentives: Subsidies are types of financial support provided by the government for endeavours deemed to be environmentally beneficial. A subsidy compensates a polluter for lowering emissions instead of taxing them for their pollution (EPA).
· Research and Development: Unquestionably, R&D has changed the direction of the energy economy. Over the past century, the energy sector has significantly evolved thanks to innovative technology. Furthermore, whether low-emission routes can be accomplished in the long run will be substantially influenced by how quickly low-emission technologies advance over the following years (Nath, 2009).
· Information Instruments: By empowering consumers to make more informed decisions, informational tools like public disclosure regulations and awareness/education initiatives may positively impact environmental quality (Nath, 2009).
Information Content | ||
1 | Confirmed | Confirmed by other independent sources; logical in itself; coherent with other information on the topic |
2 | Presumably true | Not confirmed; logical in itself; coherent with other information on the topic |
3 | Maybe true | Not confirmed; reasonably logical in itself; coherent with some other information on the topic |
4 | Uncertain | Not confirmed; possible but not logical in itself; no other information on the topic |
5 | Improbable | Not confirmed; not logical in itself; contradicts with other information on the topic |
6 | Not able to be evaluated | No basis to evaluate the validity of the information |
Trustworthiness of the source | ||
A | Trustworthy | No doubt about authenticity, reliability or competence; has a history of total trustworthiness |
B | Normally trustworthy | Small doubts about authenticity, reliability or competence, nevertheless has a history of valid information in a majority of cases |
C | Sufficiently trustworthy | Doubts about authenticity, reliability or competence; however, has supplied valid information in the past |
D | Normally not trustworthy | Significant doubt about authenticity, reliability or competence, however has supplied valid information in the past |
E | Not trustworthy | Lack of authenticity, reliability or competence; history of invalid information |
F | Not able to be evaluated | No basis to evaluate the validity of the information |
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