The Pros and Cons of International Environmental Soft Law

Sep 23, 2014 by

The United Nations brought attention to the globalization of our society and with it the need to understand international relations especially in regards to the environment. The international community, in which we are all passive members, must focus on our atmosphere, waterways and wildlife because these resources do not adhere to political boundaries.

A treaty is one of the most familiar examples of international cooperation. The Montreal Protocol on Substances that Deplete the Ozone Layer is instrumental in decreasing dangerous ozone depleting substances and repairing the ozone layer to its prior condition. The Vienna Convention on the Law of Treaties governs the procedures for treaty formation, enforcement and interpretation. A treaty is only legally binding between States which are party to the convention and that formally ratify the treaty. Although international environmental treaties exist, there has been an emergence of several environmental soft laws that cover topics including pollution, global warming and endangered species.

Soft law has been around since the 1970s and has become increasingly popular as environmental issues take center stage in the global community.((Antto Vihma, Chapter 7 Analyzing Soft Law and Hard Law in Climate Change, 21 IUS GENTIUM 143, 146 (2013). )) Soft law is a non-binding agreement, recommendation or resolution that can be issued by States, non-governmental organizations or other international entities such as the United Nations Environment Program.((Pierre-Marie Dupuy, Soft Law and the International Law of the Environment, 12 MICH. J. INT’L L. 420, 423 (1991) )). Hard law, to the contrary, is a legally binding obligation that is clearly written and can be interpreted by a third party.((Vihma, supra, at 148. )) A treaty is such an example and as illustrated by the Vienna Convention hard law is created through formal negotiations and procedures thus subjecting it to scrutiny. Soft law is typically considered to be imprecise and ambiguous. Instead of creating rules and obligations that must be strictly followed, soft law creates goals and aspirations that States can strive to achieve. If a State fails to achieve the environmental objectives encompassed in a soft law document there is no recourse available or enforcement mechanism to force compliance.

Even though soft law can be seen as irrelevant or immaterial to a discussion on environmental law because of its non-binding character there are several aspects of this form of international law that can be quite persuasive. First, States entering into a soft law agreement can do so quicker than by going through formal treaty procedures.((Id. at 150. )) This method is conducive to environmental catastrophes that need a quick response in order to mitigate serious and irreparable harm. Second, due to the lack of formal procedures it is less costly for States to participate in these negotiations which makes this form of international law much more appealing.((Id. )) Finally, soft law is an excellent vehicle in delineating solutions to complicated international environmental concerns that are influenced by political pressures.((Dupay, supra, at 430. )) These recommendations are at least the beginning of a conversation that otherwise might never even have started.

At the same time there are significant draw backs to soft law creation and proliferation. The immediate concern stems from the negotiators themselves that typify the soft law convention.((Id. at 423. )) Non-governmental organizations and other groups that have their own interests in mind encompass many of the conventions that issue these soft law recommendations. These groups may argue that the recommendation is evidence of international custom and is therefore binding on certain States. Although soft law can be a harbinger of new international norms, the actual recommendations themselves are meant to be aspirational and do not carry with them the force of law. Therefore, the credibility of soft law is a major limitation to it being a tool in shaping international environmental law.

These two forms of law can work together in order to improve and preserve our environment. The North Sea clean-up is a great example of countries that reached an agreement by non-binding goals through the declarations of the International North Sea Conferences (INSC) and its influence on the European Union (EU) and the Oslo and Paris Commissions (OSPAR).((Jon Birger Skjaerseth, Olav Schram Stokke & Jorgen Wettestad, Soft Law, Hard Law, and Effective Implementation of International Environmental Norms, 6 GLOBAL ENVTL. POLITICS 104, 106 (2006). )) The North Sea is located in the Atlantic Ocean between Great Britain, Scandinavia, Germany, Belgium, France, and the Netherlands and was used as a dumping ground for hazardous materials. The decade of the 1980s saw a increase in toxic substances being dumped into the North Sea and resulted in deadly algal blooms and marine mammal epidemics.((Id. at 107. )) The EU and OSPAR, because of political pressures, could not facilitate cooperation between the coastal States to create binding international obligations.((Id. at 106. )) It was the INSC that triggered action in regards to the dumping of toxic materials into the sea.((Id. )) Recommendations were put in place to regulate nutrients and hazardous substances in order to decrease the pollution. The EU and OSPAR eventually were able to transform the commitments and goals contained in the INSC into legally binding obligations.((Id. at 107. )) The EU adopted the Nitrates Directive and the Water Framework Directive, all in order to combat the pollution problem in the North Sea.((Id. )) OSPAR banned the incineration and dumping of hazardous substances and implemented best environmental practices to control the situation.((Id. )) INSC fostered agreement and cooperation among the North Sea States that otherwise could not find the appropriate ground to negotiate. The INSC declarations became a means in order to bring light to public opinion and essentially to protect a natural resource.

As an environmental or energy lawyer is the 21st Century it is vital to understand global politics and international relations in the promulgation of environmental laws. Even though our day-to-day work might revolve around local or municipal law, the inescapable reality is that we live in an interconnected society and future technical advancements will only further enhance the possibility that we might touch on an issue of international environmental law. We must understand and identify environmental soft law because it just might be a launching pad that transforms into legally binding hard law. As one commentator put it “ . . . it is evident that a substantial part of “soft” law today, in an impressionistic way, describes part of the “hard” law of tomorrow.”((Dupuy, supra, at 433. )) Generally speaking, soft law can be viewed as the world’s opinion on environmental matters and someday we might play an integral part in shaping the malleable nature of soft environmental law.

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