Introduction

In the preceding chapters, we have discussed the substantive regulation of environmental problems at the international level. In particular, we have analysed the obligations imposed on States in relation to the protection of the hydrosphere, the atmosphere, the biosphere and dangerous substances and activities. We now turn to the processes through which these obligations are implemented.

The traditional approach in this area assumed that compliance with international obligations only depended upon a State's will to comply. From a substantive law perspective, the main mechanism to encourage compliance was to make any violation costly for the State, notably through the application of secondary norms of State responsibility. From a procedural standpoint, breaching a norm could have several consequences, ranging from the first allegations of non-compliance, often followed by negotiations and consultations between the States concerned, to judicial mechanisms of dispute settlement and, where appropriate, alternative dispute settlement, such as mediation, conciliation or inquiry.

However, the transition from compliance to non-compliance with the requirements of a norm is better understood as a process, which admits degrees. Such degrees provide a useful basis for the discussion in this chapter because they help to locate the different implementation mechanisms at the stage where they are most likely to intervene. Four ‘stages’ may be distinguished along the compliance spectrum. Figure 8.1 summarises this understanding graphically.

Some mechanisms only play a role ‘upstream’ before allegations of noncompliance emerge (Stage 1). The main mechanism at this stage is the monitoring and reporting of information showing a State's behaviour in relation to its international obligations (section 8.2). By contrast, ‘downstream’ (Stage 4), we find the more formal mechanisms for the characterisation of a breach by third parties (adjudicatory or quasi-adjudicatory mechanisms) and the determination of the ensuing consequences attached by the law of State responsibility (section 8.3) or other secondary norms. Between these two extremes lies a grey area where the level of compliance is unclear. This area has traditionally been the province of so-called diplomatic or political mechanisms for the peaceful settlement of disputes. However, we will see in Chapter 9 that in international environmental law, this area has been populated by new methods of facilitating compliance (Stage 2) and managing non-compliance (Stage 3) with environmental standards.

Introduction

The heading of this chapter might suggest that the Earth's atmosphere is protected as a single object in international law. However, regulation is generally built around specific problems, rather than in relation to the atmosphere as such. The atmospheric issues tackled are as diverse as fumes emissions with transboundary effects, climate change, the acidification of the environment or the depletion of the ozone layer. This is not to say that a small number of overarching principles cannot be identified, as does Part XII of the United Nations Convention on the Law of the Sea (UNCLOS) for the marine environment. But the on-going process in the context of the International Law Commission (ILC) to chart the principles of a ‘law of the atmosphere’ have been subject to important and controversial limitations since the very beginning, thus raising some uncertainty as to the prospects of such an endeavour.

This said, referring to the protection of the atmosphere remains convenient for pedagogical purposes, as the different problems addressed by the instruments discussed in this chapter all relate to the composition of the gaseous envelope that extends from the Earth's surface outward into space, retained by gravitational attraction, in particular, that of the two layers closest to the Earth's surface, namely the troposphere (up to about 12 km altitude) and the stratosphere (approximately between 12 and 50 km altitude).

An alternative but complementary way of approaching the protection of the atmosphere is to distinguish the various problems according to the geographical scope of their regulation. From this standpoint, the different regulatory regimes can be organised according to whether they address local, regional or global problems. It is worth recalling that even when dealing with a ‘local’ problem in international law, we refer to a situation that, due to its transboundary effects, involves two or more States. As for the specific threshold between the categories ‘local’, ‘regional’ and ‘global’, the determination depends, strictly speaking, upon the spatial scope specified in the regulation. Such scope normally coincides with the spatial dimension of the environmental problem tackled by the regulation. However, there is no necessary link between the two. Global issues, such as certain aspects of climate change or land-based pollution of the marine environment, may be tackled at a local or regional level.

Introduction

In the preceding chapter, we identified four stages in the process of compliance with a primary environmental norm. We saw that the traditional approaches used in international law to implement international obligations focus on the first (information) and the fourth stages (reparation). The techniques dealing with information gathering/reporting as well as with the characterisation of a breach (through adjudication) and the determination of the ensuing legal consequences (responsibility/liability) play a significant role in environmental protection, but they also raise significant challenges. We identified in the process going from compliance to non-compliance, a grey area characterised by uncertainty as to the level of compliance (information without breach characterisation). This area, which one might call the ‘soft belly’ of the compliance process, is important for our discussion because it is the main target of the implementation system of many environmental treaties.

This strategic choice is based on two main considerations. On the one hand, in an environmental protection context, prevention is much more important than the reparation of environmental damage, which is often very difficult. On the other hand, the techniques relevant for the first and fourth stages assume that non-compliance with an obligation is a matter of willingness rather than one of financial and technological capacity. This assumption is not necessarily accurate for all States. The costs and technical expertise involved in complying with environmental treaties sometimes make their implementation difficult for States that do not have the necessary resources. Moreover, even when a State has the resources, minimising the costs associated with the implementation of measures remains important to make compliance more efficient. These two factors have led to the development of new approaches to implementation. Figure 9.1 identifies the stages where these approaches intervene.

The main techniques to facilitate compliance with environmental obligations (Stage 2) seek to provide ‘assistance’ and ‘efficiency’ gains (9.2). Technical and financial assistance are intended to give developing States the means to create the necessary infrastructure for the implementation of their environmental obligations. Other techniques aim to increase efficiency to reduce the cost of compliance with environmental obligations. The latter are relevant for both developed and developing countries and they are usually structured as market mechanisms. Regarding techniques to manage cases of noncompliance (Stage 3), their purpose is to maintain the effectiveness of the regime within reasonable bounds through a combination of renewed assistance, diplomatic pressure and sanctions (9.3).

Introduction

In the preceding chapter, we left open the question of the principles and concepts that underlie international environmental law and define its contours. This chapter can therefore be regarded as a continuation of Chapter 2, as it further develops the characterisation of international environmental law outlined there. In addition, the analysis of the principles and concepts of international environmental law is an important step in the study of its substantive aspects, which will be discussed in the second part of this book.

To understand the importance of the principles and concepts of international environmental law, as well as the difference between these two categories, it is helpful to first introduce some analytical distinctions (3.2). These distinctions will allow us to present the fundamental principles and concepts that conform the structure of international environmental law in the light of the two main values advanced by this body of law, namely prevention (3.3) and balance (3.4). The last section will link these principles and concepts to the environmental regimes examined in the second part of this book (3.5).

Some Analytical Distinctions

The elements that form the subject matter of this chapter have already been discussed in some detail by legal commentators, although they are often presented in different ways depending on the criteria employed by each author. To facilitate a useful comparison with these other views, distinctions that are sometimes implicit in these analyses should first be made explicit to prepare the ground for an introductory discussion of the material.

First, we must distinguish between the use of the term ‘principle’ to refer to a type of statement or formulation of a norm, and its use to describe the legal foundation of a norm, whether it is a treaty, customary international law or, subsidiarily, a general principle of law. These are two different questions because the formulation of a norm as a principle, for example in a soft-law instrument, says little about its legal grounding in one formal source of international law. The assessment of whether a given principle has a certain legal character is an exercise that must be performed on a case-by-case basis, as will become evident later.

Second, it is useful to classify environmental norms using three categories (concepts, principles, rules), according to their degree of generality/particularity.