Lecture 10 - Compliance, Enforcement, Communication Flashcards
(34 cards)
Stages of Implementation of Environmental Law
(Paddock et al., 2011):
1. Institutional design: International = complex regimes; national = government legislator (usually two-tiered)
2. Standard setting and compliance: International = treaties, protocols, conventions; National= Constitution, principles, laws, regulations
3. Enforcement: International = Non-compliance, scientific committees (about diplomacy, more about support than punishment); National = Control bodies at admin levels and judicial bodies
Issues of Implementation of International Environmental Law
Factors include:
- Softness of international obligations (usually vague, open, non-quantified) or specifities of environmental harm
- States in some cases have no or little capacity to meet requirements imposed by IEL
- Cost of non-compliance is declining state of global environment
The Cost of Non-Compliance and the Declining State of Global Environment
- GHG emissions growing; 50% since ‘90 and 35% by -00
- 1 mil. animals/plants extinction threat
- 87% of wetland resources lost since 1700
Traditional Dispute Settlements are Inadequate for Enforcement of IEL because…
Not just one state being impacted and one state impacting them so who is taking who to court and which court? Complex.
- No modern pollution case has gone to international court over cross-border damage
- Also issue of sovereignty; diplomatic solutions are preferred to litigation ones
Types of Compliance Tools for nature Conservation Treaties
Can’t just kick out a country because need all state partiicpation in MEA (that’s the point) so use:
1. Carrots (incentive-based) [preferred]:
- Tech assistance, financial support, access to financing
2. Sticks (punitive/enforcement):
- Trade suspension under CITES, listing on Danger list, etc.
Monitoring and Oversight of Nature Conservation Treaties
-First gen treaties had minimal oversight and over time, developed feedback loops to implement, monitor, report, and review and non-compliance mechanisms
- Compliance review is now from COP oversight
- Series of docs that can be monitored and reported on so complaince can be checked
- Compliance review has been effective - soft approach to get state compliance w international law
- If non-compliant action happens then compliance committee assesses the issue and makes recommendation –> push for compliance instead of pushing state away
Non-Compliance Mechanisms (NCMs) in Science-Based Treaties
-Many mechanisms have formed, dynamic and flexile alternatives to traditional dispute resolution that foster cooperation > conflict
- Not courts and can’t issue binding rulings; provide recommendations like financial or tech assistance of penalties if persistent non-compliance
- Non-Compliance Committees under these agreements will monitor and review compliance under the treaty (could come from another party raising concern, self-report, secretariat of body, etc.)
- Each treaty has its own functions and often behinid closed doors; non-transparent
Scientific Committees and Their Contribution to Compliance
- Not primarily established to enforce compliance but may help states implement treaty provision and determine if obligations have been violated
- Serve advisory capacity, provide guidance on prcedures and effective treaty admin
- BUT can overlap w other aspects like tribunals or international courts (ICTs)
- Serve as complementary mechanisms to NCMs and ICTs
International Court Tribunals (ICTs) and Contribution to Compliance
Last resort after other compliance mechnisms
- Communication = key to compliance
- Not all treaties have this option of compliance –> must be stated in the treaty itself
- E.g. treaties Southern Bluefin Tuna Convention allows for unrsolved disputes to be referred to the ICJ
Three Aspects of Compliance of International Environmental Law
- Non-Compliance Mechanisms (NCMs) (e.g. suggest financial assistance, penalities)
- Scientific Committees (review actions and penalities)
3.International Courts & Tribunals (ICTs) [last resort]
Judicial v. Scientific Contribution to Compliance
-Who actually most legit to give a resolution answer? Technical or scientific?
- Judicial Dming emphasized due process and legally binding reasoned outcomes WHILE scientific bodies are advisory
- Operate in distinct but complementry spheres (often scientific committees are first step, clarifying facts for judicial bodies)
- Question of who should have greater weight and how is the expert chosen?
Example Cases:
- Whaling case: Critics argued IWC’s scientific committee was better suited to evaluate Japan’s actions
- Bay of Bengal Case: ITLOS delimited the continental shelf beyond 200mi despite CLCS advisory roles
- Nicaragua v. Colombia: ICJ ruled on scientific matters reinforcing judicial authority
NATIONAL Compliance of IEL
-If countries engage in treaty negotiations, presumed they will implement obligations domestically after adoption
- Domestic implementation should align with treaty provisions (compliance)
- National mechnisms must promote enforcability of international instruments
- States decide whether international law has legal force in their domestic legal order (not in UK, but is in France)
Types of National Environmental Law, Regulation and Governance
- LAW: Highly-specific state-based law (through parliament and interpreted by courts).
- State = central player - REGULATION: Broader;
- More flexible forms of social control to harness governments and markets (as w/ economic instruments).
- State = central player (e.g. tradeable permits is based on market forces but must operate according to state rules & enforcement) - GOVERNANCE: State loses cenral role, just another player
- Subnational and community based regulation
- Represents polycentric state where no single soverieng authority dominates
UK Legal & Regulatory Framework: Hierarchical Layers
Top: Acts of Parliament
Then: Statutory Instruments
Then: Licenses
Then: Codes
Evolution of State-Driven Regulation and Compliance
Broadly, has evolved from strict command and control (e.g. emissions limits) in 1970s, to pureley market-based and voluntary in 80s and then to management-based in late 1990s.
1970s: Command & Control Regulation
1980-90: Voluntary approach to regulation
Mid-to-late 1990s: Management-based regulation and Meta-regulation
Evolution reflects ongoing tension of balancing efficiency, regulatory capability, power of regulators themselves, etc. And usually never one mechnism but a combo of them
Command and Control State-Driven Regulation: 1970s
-Focused on setting env’tl targets (e.g. emissions limits) with penalties for non-compliance:
- Success: Led to significant enviornmental improvements like reduced pollution from pulp and paper mills in USA
- Criticism: By 1980s, criticised for inflexibility, high costs, and inefficiency for complex issues like runoff
- Rise of neo-liberal ideologies promoted deregulation and market-bsaed solutions (e.g. Reagan-Thatcher era) and industry lobbied agianst economic burdens
All in all, C&C was effective for straightforward, point-source pollution, but diverse issues needed a flexible regulatory solution
Voluntary & Market-based Approaches to State-Driven Regulation in 1980 and Early 1990s
-Introduced economic instruments like taxes, tradable permits, subsidies to reduce reliance on direct gov’t intervention. Trying to get efficiency through markets
- E.g. Acid Rain Programme of US Clean Air Act Amendment of 1990 set an industry-wide cap on sulphur dioxide emissions at half of historic levels. Allowed emissions trading.
- Businesses pushed back over cost concerns, compeitiveness, etc. Wanted self-regulation like industry-led initiatives for chemicals (but though these were popular, saw limited benefits, usually just awareness)
Evolution of State-Driven Regulation into the Mid-to-late ’90s (management-based)
-Shifted to a light-handed approach, emphasizing cooperative relationships with businesses
- Performance standards replaced prescriptive regulations; encourages innovation and flexibility but only mandated minimum-compliance, lacked incentives for continuous improvement
- MGMT.-BASED REGULATION: Introduced by Clinton-Gore, require firms to develop internal mgmt system standards to achieve regulatory goals. Allows firms to find cost-effective solutions.
- Tools focused on systematic problem-solving through risk assessment, problem solving, etc.
- Canadian programs offered regulatory rewards for adopting environmental mgmt systems
- META-REGULATION: Focuses on risk-managing risk mgmt. of enterprises, shifting regulators’ roles from enforcing prescriptive rules to scruitinizing internal processes & systems
Motivations for Businesses to Go Beyond Minimum Compliance Required by Regulation (Business-Driven Regulation)
- Note: Regulation is primary driver of improved environmental perofrmance; Effective policies should conbine strong baselines regulations w frameworks to incentivize businesses to exceed standards
- Cost redution & competitive advantage
- Reputational enhancement and protection
- Risk mgmt
- Market opportunities in ‘green’ services
Market Mechanisms (State and Business-Driven Regulation)
Market mechanisms (e.g. charges, taxes, permits, quotas, subsidies) work best when combined w other regulatory tools and have clear oversight and address verifiable impacts and have strong monitoring systems
State and Business Driven Regulation Today - REGULATORY SANDBOXES
- A facility created and controlled by a regulator to allow conduct of testing experiments with novel products or processes prior to full entry into marketplace.
- Essentially provids a ‘safe space’ for businesses to experiment without immediately facing full regulatory requirements under regulator supervision
- Involves business & heavy gov’t support
Benefits of Sandboxes
Can address the following historical challenges:
- Inflexibility of traditional regulation
- Need for innovation in complaince approaches
- Desire for cooperative > adversarial relationships
- Balance b/w flexibility & public protection
Questions still to be answered on Sandboxes
- How to maintain adequate oversight while enabling innovation
- Ensuring experimental approaches can scale effectively
- Balncing innovaiton w environmental protection
- Managing transition from sandbox to full regulation
Energy Regulatory Sandbox
-Allows for testing of digitalisation, decentralisation, decarbonisation, democratization
- Key objective is keep stable markets and consumer protection
- Entrepreneurs: Projects leave as failures, learning objectives, etc. and sandbox helps them overcome uncertainty and reduce procedural and gov’t approval costs so they can test new products
- For public, sandbox allows gov’t to help bring useful new tech to customers
- For regulators, chance to learn about and adapt regulation and ensure compliance
