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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in Law “Emerging Scholars, Emerging Scholarship” McGill University Faculty of Law Montreal May 29 – 30, 2014 DRAFT- DO NOT CITE!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:
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:
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:
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. 22 The Vienna Convention for the Protection of the Ozone Layer 1985. 23 Ibid Art 2(b). 24 KYOTO PROTOCOL TO THE UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE 1998 25 “Bush: Kyoto treaty would have hurt economy”,, online: msnbc.com
Scholars often claim that the main problem respecting law-making is caused by conflicting political, economical and social interests and the law of environmental protection is an exception to this rule. The politicization of law has a corrupting effect both in the powerful institutions such as the
World Bank28, or in judicial branches in Latin America which aim to be impartial and independent29 and legal fields such as the law of armed conflict30, penal law31, constitutional law32, or the law of environmental protection33. Professors Havel and Mulligan analyzed in their article the judgment of the
European Court of Justice Case C-366/10, arguing that the validity of the Directive 2008/101/EC is politically influenced in order to “satisfy powerful political constituencies”34. According to Posner, the vital consequence deriving from the expanding politicization of law is “the lack of faith of citizens in law's objectivity”35, thus undermining the main purpose of law as a normative, impartial source.
The economization of law is a fact which was confirmed by a number of scholars including
Treubner36 and Goetz37. Each lobbying group tries to advance its economic interests38, which is legitimate as long as it does not neglect the letter of the law. Economy is concerned with profit maximization and economic growth. However, this concern may act as an advocate for soft law.
According to one line of thought: “outdated laws and inadequate mechanism for the enforcement of
28 Bartram Stewart Brown, The United States and the politicization of the World Bank: issues of international law and policy (Routledge, 1992). 29 Pilar Domingo, “Judicialization of Politics or Politicization of the Judiciary? Recent Trends in Latin America” (2004) 11:1 Democratization 104. 30 Joshua L Kessler, “Goldstone Report: Politicization of the Law of Armed Conflict and Those Left Behind, The” (2011) 209 Mil Rev 69. 31 Eugene McLaughlin, John Muncie & Gordon Hughes, “The permanent revolution: New Labour, new public management and the modernization of criminal justice” (2001) 1:3 Criminol Crim Justice 301. 32 Matthew D Lassiter, Does the Supreme Court Matter? Civil Rights and the Inherent Politicization of Constitutional Law (JSTOR, 2005). 33 Brian Havel & John Mulligan, “The triumph of politics: reflections on the judgment of the court of justice of the European Union validating the inclusion of non-EU airlines in the emissions trading scheme” (2012) 37:1 Air Space Law 3. 34 Ibia at 33. 35 Richard A Posner, “Conventionalism: The Key to Law as an Autonomous Discipline?” (1988) Univ Tor Law J 333. 36 Gunther Teubner, “Altera pars audiatur: Law in the Collision of Discourses” (1997). 37 Charles J Goetz, Law and Economics (West, 1984). 38 José Angelo Estrella Faria, “Future Directions of Legal Harmonisation and Law Reform: Stormy Seas or Prosperous Voyage” (2009) 14 Unif Rev 5 at 10. DRAFT- DO NOT CITE! legal rights are now recognized as generating economic inefficiency and hindering sustainable economic development”39, Soft law meets the expectations set out by Faria as it is easier to amend compared with hard law.
The economization of European environmental law40 is visible in the example of the European
Directive no 2008/101/EC, concerned with regulation of the emissions from the aviation industry. The changes introduced by the Directive, which include market-based measures (i.e. taxes, levies, charges) for both European airlines and third-states airlines (the airlines owned by the non-EU member states), caused a “turbulence” in international environmental law. Firstly, the European Union usurped international jurisdiction over civil aviation and, secondly, it interfered with the sole responsibility of the International Civil Aviation Organization for imposing any market-based measures on international aviation. The most balanced approach, which ought to be applicable in environmental laws as well as in other legal fields, has been expressed by Judge Frank Easterbrook who stated “that economics is value- free and should be used generously to deepen our understanding of legal issues41. In the view of the author, there is no doubt that politicization of law is harmful; on the other hand the economization of law is necessary - within the field of environmental law also.
V The advantages of soft law
Carter and Trimble stated that “soft law is where international law and international politics combine to build new norms”42. In those circumstances, it is difficult to establish hard laws which are based on “legitimacy, control and accountability”43. The solution lies in soft law which is characterized
39 Ibid at 15. 40 Nicole Ahner, Economisation of European Environmental law—Emissions Trading as legal instrument (December 2008) (IEEE, 2009). 41 Eleanor M Fox, “Politics of Law and Economics in Judicial Decision Making: Antitrust as a Window, The” (1986) 61 NYUL Rev 554. 42 Rao, supra note 19 at 138. 43 Joost Pauwelyn, Ramses Wessel & Jan Wouters, Informal international lawmaking (Oxford University Press, 2012) at 125. DRAFT- DO NOT CITE! by “less costly legal negotiations”44, less impact on state sovereignty45, and fast availability to non-state players, such as corporations, international organizations or the non-governmental bodies46. Moreover, the non-binding legal instrument can be the background to future, potentially binding law.
The further advantage of soft law instruments is that they are less time-consuming in the process of implementation, because there is no need for ratification, accession or signature. In addition, the potential process of amendment of soft law is easier than for hard law.
Despite the advantages of soft law described above, Wessel points out several questions which have to be analyzed before a total reliance on informal soft laws can be achieved. To cite one of these questions: how and if soft law can enact the binding legislation, what should be the position of soft law in the legal analysis of the judges?47
VI Conclusions
In conclusion, soft law plays and will be playing a vital role in environmental protection legislation, regardless of the political, economic and social contexts. The strongest benefit possessed by soft law is that it creates room for maneuver for states and releases them from the pressure of implementing particular binding laws. The distinct nature of environmental protection legislation demands soft law, which is able to elaborate a common denominator for the various interests of different states.
44 Mark Pollack & Gregory Shaffer, “The Interaction of Formal and Informal Lawmaking” (2012) at 5. 45 Ibid. 46 Ibia at 6. 47 Ramses A Wessel, “Informal International Law-Making as a New Form of World Legislation?” (2011) 8:1 Int Organ Law Rev 253 at 265.