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The Short Analysis of Importance of Non-Binding Regulations in the Field of Environmental Law

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The Short Analysis of Importance of Non-Binding Regulations in the Field of Environmental Law DRAFT- DO NOT CITE! Paulina E. Sikorska, LLB LLM Candidate in Air and Space Law, Institute of Air and Space Law, Faculty of Law, McGill University, Montreal, QC, Canada [email protected] Soft laws equal no laws? The short analysis of importance of non-binding regulations in the field of environmental law McGill Annual Graduate Conference in Law “Emerging Scholars, Emerging Scholarship” McGill University Faculty of Law Montreal May 29 – 30, 2014 DRAFT- DO NOT CITE! I Soft law as an alternative to hard law Nowadays, in the absence of political willingness at international level to create binding laws [hereinafter “hard law”] dealing with environmental protection, the legally non-binding instruments [hereinafter “soft law”] seem to be the only alternative, as it is better to have something than nothing. Examples of soft laws include the following: declarations (i.e. the Stockholm1 or the Rio2 Declarations), recommendations (i.e. the adaptation of the “polluter pays” principle by The Organization for Economic Co-operation and Development (OECD3), best practices (i.e. the usage of Recommended Environmental Best Practices for Federally-Funded Projects by The US Environmental Protection Agency 4). The cardinal difference between hard law and soft law lies in the non-binding nature of the latter. In other words, soft law means a voluntary commitment by a particular state to obey, for example, the provisions of the Stockholm Declaration; there are no legal implications or penalties for breaches of soft law. Nevertheless, soft law is an extremely influential and authoritative source of regulations and it can tackle the environmental concerns at international, European and national levels. In the case of corporations, breaches of soft law can bring negative publicity which might then be followed by decreasing sales and public ostracism. Thus, Zu observes that companies “with an image of high corporate social responsibility, have more low-cost implicit claims and higher financial performance”5. There are clear indications, therefore, that social and political pressure, combined with the soft law instrument can be effective. Pauwelyn sees that the growing need for an informal law- 1 Declaration of the United Nations Conference on the Human Environment, adopted at Stockholm on 16 June 1972 2 The United Nations Conference on Environment and Development, Having met at Rio de Janeiro from 3 to 14 June 1992 3 OECD (1992). The Pollute-Pays Principle: OECD analyses and recommendations Doc. OECD/GD(92)81, Paris: OECD 4 Recommended Environmental Best Practices for Federally-Funded Projects (The U.S. Environmental Protection Agency, Region 9 (EPA))online: <http://www.epa.gov/region9/water/grants/sap/pdfs/Green-Grant-Practices.pdf> 5 Liangrong Zu, Corporate social responsibility, corporate restructuring and firm’s performance: Empirical evidence from Chinese enterprises (Springer, 2008) at 10. DRAFT- DO NOT CITE! making process derives from the “stagnation of international law”6. The field of environmental law is not alone in this stagnation. As exemplification of this, the last binding law in international space legislation was the Moon Treaty7 of 1979, ratified by only 11 countries. Since then, no international space law convention/treaty or any other form of binding law has been created. On the other hand, there are successful soft laws dealing with issues such as space debris8. II The influence of soft law on hard law Soft law instruments can be a first step to the creation of binding instruments. Slaughter assesses that the process of non-binding law-making is one of the methods of global governance9. The milestone for environmental protection and the raising of public awareness of it was the Stockholm Declaration, which established 26 principles. Twenty years later the Rio Declaration set out principles on which binding laws are to be built, namely: sustainable development (no 1), the precautionary principle (no 15) and the polluter pays principle (no 16). The Rio Declaration places the responsibility for preventing harm to the environment on human beings (the main cause of harm), as participants, and also established the “participation principle” (enshrined in Principle 10). The principles from non- binding instruments could eventually reach the status of binding customary laws confirmed in states’ practices and in opinio juris. The second most important principle - Rio's “precautionary principle” - is taken into account in the Helsinki Convention on the Protection of the Baltic Sea10, the Framework Convention on Climate Change11 and the Montreal Protocol12. In the MOX Plant case13, the 6 Joost Pauwelyn, Ramses A Wessel & Jan Wouters, “The stagnation of international law” (2012). 7 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of 1979 8 Inter-Agency Space Debris Coordination Committee (IADC) space debris mitigation guidelines (2002, as revised in 2007); For further reading, please see Elias Andrade, “The Dilemma of Space Debris”, online: <http://espi.marmara.at/docs/Elias-Andrade.pdf>; Daria Diaz, “Trashing the Final Frontier: An Examination of Space Debris from a Legal Perspective” (1992) 6 Tul Envtl LJ 369. 9 Anne-Marie Slaughter, “International law in a world of liberal states” (1995) 6 Eur J Intl L 503 at 215. 10 CONVENTION ON THE PROTECTION OF THE MARINE ENVIRONMENT OF THE BALTIC SEA AREA, 1992 Art 3(2). 11 United Nations Framework Convention on Climate Change 1992 Art 3(3). 12 The Montreal Protocol on Substances that Deplete the Ozone Layer 1987 13 Myron H Nordquist, John Norton Moore & Said Mahmoudi, The Stockholm declaration and law of the marine DRAFT- DO NOT CITE! precautionary principle was perceived to be a part of customary international law. The promotion of the principle of sustainable development is stated in two UK Acts: The Local Government Act14 and the Government of Wales Act15. Even if this is only referred to as “promotion”, it constitutes a step forward in taking the environment into account. In the Gabcikovo case16, the sustainable development principle was emphasized by means of balancing the economic development and environmental protection and also, in the separate non-binding opinio juris, Vice President Weeramantry perceived the principle as a part of modern binding international law.17 The promotion of the principle was also included in Art. 2 of the Treaty of Maastricht18. It was a very important step in addressing environmental issues arising from the recognition of humans' substantial contribution to environmental damage and, subsequently, created a coherent legal framework (a bit like a “signpost” for states), even if a non-binding one. III The weaknesses of hard law Craik pointed out that “the mandatory provisions of so-called hard law can lead to soft responsibility when there are no credible compliance and enforcement mechanisms”19. In other words, the fact of the creation of a treaty does not mean that there is a sufficient command-and-control mechanism without which the treaty is not effective at all. Additionally, there is the similar problem of vague definitions or the absence of definitions in the hard law context: thus, it will be left to judges to assess what meaning ought to be applied on a case by case basis. One example could be the Nitrates Directive20 in which the imprecise definition of “serious harm” (where is the boundary between serious environment (Martinus Nijhoff Publishers, 2003) at 201. 14 “Local Government Act 2000”,, online: <http://www.legislation.gov.uk/ukpga/2000/22/contents> Section 4. 15 “Government of Wales Act 2006”,, online: <http://www.legislation.gov.uk/ukpga/2006/32/contents> Section 121. 16 CASE CONCERNING THE GABCIKOVO-NAGYMAROS PROJECT (HUNGARY/SLOVAKIA), 1997 (INTERNATIONAL COURT OF JUSTICE). 17 JESSICA Howley, “The Gabcikovo/Nagymaros case: The influence of the international court of justice on the law of sustainable development” (2009) 2:1 QLSR 1 at 8. 18 Treaty on European Union - Maastricht Treaty of 1992 Art 2. 19 P Krishna Rao, International environmental law and economics (Blackwell Oxford, 2002) at 138. 20 Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources. DRAFT- DO NOT CITE! and non-serious?) undermines the purpose and effectiveness of the Directive. Another example could be the absence of a definition of “waste” in the Waste Framework Directive21. The Vienna Convention22 states that “the Parties shall adopt appropriate legislative or administrative measures and co-operate in harmonizing appropriate policies to control [...] these activities [which] are likely to have adverse effects resulting from modification or likely modification of the ozone layer”23. The obvious question is what actually constitutes the “appropriate measures”. Hence, the fact a treaty or a directive has been ratified does not mean that it is clear and precise enough to allow nations discretion in interpretation and application in practical terms. Last but not least, powerful states (such as the US, the Russian Federation, China and India) may refuse to sign, for instance, a binding Kyoto Protocol24 concerning reduction of greenhouse emissions. In President Bush's view, the Protocol “would hurt the economy”25. Russia ratified the Protocol but was concerned about its impact on “economic growth”.26 Unfortunately, again, economic and financial aspects outweigh the need for environmental protection. IV Politicization and economization of international law and environmental law The international law-making process is affected by politics and economics and the trend is referred to as politicization and economization of law. Brown argues that "negative politicization” occurs when any decisive legal organ or legal member goes beyond its competence in order to fulfill political expectations27. Therefore, this “practice” allows the most powerful states to manipulate international law by interpreting it according to their own favored standards, or by pressurizing other countries to change their opinions on a particular legal matter. 21 DIRECTIVE 2006/12/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 5 April 2006 on waste.
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