Introduction

Marine birds are among the most conspicuous elements of coastal ecosystems. Their variety, abundance, visibility, and behavior resonate with the public. They are also particularly vulnerable to oil spills. Most marine-bird species forage at or beneath the water’s surface, where they are at risk of exposure to floating oil. Additionally, many feed and nest along shorelines where floating oil can accumulate, and some form large breeding colonies that are susceptible to oil spills. Over 200 000 marine birds died as a direct consequence of the Exxon Valdez oil spill, and images of oiled birds dominated media coverage. Federal regulations requiring documentation of injuries to natural resources from oil spills (see Chapter 1) prompted multiple studies of marine birds, fueling debates about short- and long-term effects of the spill and subsequent recovery.

Determining how an oil spill (or any large environmental disturbance) affects marine birds is complicated by variation in the environment and in how birds respond to that environment. Coastal environments vary substantially from place to place and time to time. At high-latitude locations such as Prince William Sound (PWS), diurnal and monthly changes in tides; seasonal variations in storms, water temperatures, and productivity; and multiyear changes in ocean temperature and circulation such as El Niño events and the Pacific Decadal Oscillation can have dramatic effects. At any time, marine birds may be responding to a host of environmental factors over a range of scales, from the availability of suitable nesting sites along a small stretch of shoreline to the abundance of prey over a broad region or to variation in hemispheric-scale forces affecting the ocean. Because these influences do not disappear when an oil spill occurs, they and any associated environmental variations must be accounted for when assessing spill effects. Population changes attributed to an oil spill must be rigorously tested and documented, not just inferred.

Introduction

Every oil spill is different from the ones that preceded it. This is due in part to differences in the spill itself – the nature of the oil and the circumstances of the release – but it also stems from differences in the context of the spill – the setting, the resources at risk, and how people respond to the spill. All of these factors affect how science is brought to bear on investigating the spill and its consequences.

The two chapters in this section consider these factors in two ways. Chapter 1 (to which many of the authors contributed) introduces the environmental setting of the Exxon Valdez oil spill, what happened during the spill and to the oil that was released, the cleanup responses and the launch of scientific studies, and the regulatory and legal context of the spill responses and studies. Separate discussions consider: the characteristics of crude oil; the importance of assessing exposure of biota to the oil in gauging potential effects; the thorny issue of defining “impact,” “effect,” “injury,” and “recovery”; and the legal issues that followed from the spill.

In Chapter 2, Paul Boehm, Erich Gundlach, and David Page take a broader view. When oil is released in a marine environment, it immediately begins to undergo transformations resulting from a variety of physical and chemical processes. Although these changes are continuous, they can be separated into three overlapping phases that align with shifts in the focus of scientific studies over time. Recognizing these phases can help to plan which studies to conduct, and when. This, in turn, can facilitate an efficient and effective allocation of research efforts.

Introduction

For over 4000 years, humans have lived, fished, hunted, and developed industries in Prince William Sound (PWS). When Exxon Valdez oil spilled in 1989, hundreds of archaeological sites and artifacts were potentially at risk. Many were at least superficially known, but most were not. Archaeologists and other cultural resource experts had to move quickly to identify vulnerable sites and work with others engaged in the response to safeguard Alaska’s heritage from oil and incidental harm during cleanup. Exxon created the Exxon Valdez Cultural Resource Program (hereafter the “Program”) to address potential threats to archaeological sites and to comply with state and federal laws.

The 28 archaeologists contracted to Exxon in 1989 coordinated with archaeologists from governmental agencies and Alaska Native organizations to assess the integrity of sites, identify oil concerns, and protect sites from impacts during shoreline cleanup. The archaeological contractors and their agency counterparts were knowledgeable in all areas of cultural-resource management, laws, and the region’s pre- and postcontact history.

Introduction

Recent decades have seen a remarkable proliferation of sophisticated and innovative legal arrangements to protect the global environment; yet major pressures on the biosphere and its alarming rate of deterioration continue largely unabated. Not surprisingly, enforcement is therefore considered an Achilles’ heel of international environmental law. The current regime lacks a central, overarching body to ensure enforcement; instead relying on domestic compliance by the very nations it seeks to commit.

Climate governance is no exception. The mitigation of climate change is a prime example of a collective action problem. It reveals the precarious balance between strong commitments and effective enforcement: efforts to achieve safe greenhouse gas concentrations in the atmosphere will fail unless there is a means of coercion or an incentive that is unavailable to non-participants. Yet, aside from the relatively limited options provided by the law of state responsibility, sovereign states cannot be coerced without prior consent. In turn, the expectation of strict enforcement may undermine their willingness to enter into meaningful substantive commitments. If the international community decides to intensify its cooperative efforts with deeper and more ambitious commitments, enforcing the latter will become an ever greater challenge.

The role of facilitative approaches in promoting compliance

Standard environmental texts tend to address the issue of compliance exclusively as a question of enforcing or ensuring compliance with treaty obligations through formal and informal methods for settling disputes and monitoring compliance. With a number of environmental treaties now including a compliance procedure, the increased attention on the role of international compliance in the effective implementation and enforcement of international environmental treaties is unsurprising. As the burgeoning literature underscores, the primary objective in establishing compliance procedures is to provide, within a multilateral context, encouragement to states to comply with their treaty obligations and, in the event of non-compliance, to provide a ‘softer’ system to address non-compliance than that afforded by traditional dispute settlement procedures under general international law. In the climate change context these ‘traditional procedures’ comprise the multilateral consultative process and dispute settlement provisions of the UN Framework Convention on Climate Change (FCCC), which are extended to the Kyoto Protocol (KP) with its additional, bespoke compliance procedures. Facilitating compliance is clearly a part of this process, as the mandate of the KP’s bifurcated compliance body underscores: ‘[t]he objective of the procedures and mechanisms on compliance is to facilitate, promote and enforce compliance with commitments under the Protocol’. Practice under the first-ever compliance mechanism, established under the Montreal Protocol, reveals a particular reliance on facilitative approaches even though the Implementation Committee thereunder is not bifurcated in the manner of the Kyoto Compliance Committee.

In the climate change context, as elsewhere, there has been a tendency to equate compliance facilitation with formal (non-) compliance procedures. For example, in their guide to the climate change regime, Yamin and Depledge explain ‘provisions in the climate regime that facilitate compliance by Parties with their international commitments and, where necessary, correct cases of non-compliance’ exclusively by reference to the dispute settlement, multilateral consultative, and compliance procedures and mechanisms of the FCCC and KP. Matters such as finance, technology, and capacity building are addressed elsewhere as resources relevant for achieving the substantive commitments set out in the FCCC and KP.

Introduction

The Kyoto Protocol compliance mechanism was designed to strengthen the protocol’s environmental integrity, ensure transparency of accounting by parties, and support the global carbon market’s credibility. Its objective is to ensure an effective implementation and enforcement of the protocol in accordance with international law, under the auspices of the Compliance Committee. Even if the current climate regime does not explicitly refer to measurement, reporting and verification (MRV) it does in fact contain important related requirements which provides parties with an implementing framework and, where appropriate, the necessary information to trigger the compliance mechanism.

In this context, MRV and compliance are different and should not be confused. MRV can help identify non-compliant situations through a technical procedure, whereas the compliance mechanism provides for a set of legal (and quasi-judicial) procedures to determine and address cases of non-compliance, through facilitative and enforcement measures, including punitive consequences. Both processes have proved to be complementary in ensuring an effective international climate regime.

Introduction

International lawyers have not traditionally concerned themselves with compliance issues. Or, to be more precise, the lawyer’s traditional role has been to offer a legal assessment of whether or not a particular state was in compliance with its international legal commitments. If a state was not in compliance, lawyers would advise on the legal consequences and on the available avenues for dispute settlement or enforcement. By contrast, international lawyers did not inquire into the explanations for states’ compliance or non-compliance with international commitments, or into suitable strategies for promoting compliance.

These questions were seen to be within the purview of another discipline, that of international relations (IR). In the context of multilateral environmental agreements (MEAs), however, the international lawyer’s traditional compliance toolkit has so far been of limited utility. The law of state responsibility and the dispute settlement clauses in MEAs have remained largely unused. What is more, given states’ collective interest in the effectiveness of MEAs as problem-solving devices, policy-makers have tended to prefer promotion of compliance to enforcing legal responsibility for breaches of law. Hence the MEA context was one of the first in which a lively exchange emerged between international lawyers and IR scholars on compliance issues.

Introduction

In 2007, the parties to the UN Framework Convention on Climate Change (FCCC) agreed, through the Bali Action Plan, to enhance action on mitigation through consideration of ‘nationally appropriate mitigation commitments or actions, including quantified emission limitation and reduction objectives, by all developed country parties, while ensuring the comparability of efforts among them, taking into account differences in their national circumstances’.

This chapter considers the concept of ‘comparability of efforts’ for developed country parties in the context of the negotiation of post-2012 targets under the Kyoto Protocol, and long-standing efforts within this negotiating process to extend quantified emission reduction commitments and core elements of the Kyoto Protocol compliance system, both to Annex I parties that are not parties to the Kyoto Protocol (i.e. the United States), and to large developing country economies with a substantial and growing share of global emissions (e.g. China, India, Indonesia, Brazil). It considers two aspects of comparability of efforts in the context of the Bali Action Plan, and the Copenhagen Accord and Cancun Agreements which followed: (1) stringency of mitigation efforts; and (2) applicable rules for monitoring, reporting and verification of greenhouse gas inventories and achievement of targets.

Introduction

Compliance with the obligations under the Kyoto Protocol is key to the protocol’s environmental integrity; it supports the carbon market’s credibility and ensures transparency of accounting by parties. Annex I parties, including countries that are undergoing the process of transition to a market economy (EITs), are required to comply with their quantified emission limitation and reduction targets, the methodological and reporting requirements for greenhouse gas inventories, and the eligibility requirements under the flexibility mechanisms.

Emission trends of EITs indicate that rather than struggling with meeting their emission targets, they face the challenge of utilizing their ‘carbon surpluses’ for the sustainable development of their economies. The issue of over-compliance is closely linked to the question of how to leverage surplus emission allowances through Joint Implementation and Green Investment Schemes in a way that ensures the environmental integrity of the Kyoto Protocol and supports the sustainable development of EITs. While emissions targets currently do not seem to raise compliance issues for EITs, compliance with methodological and reporting requirements on the other hand has raised some criticism and led to the involvement of the Kyoto Protocol Compliance Committee.