Enforcement of International Environmental Law : the Kyoto Protocol
Shalini Prakash
shalini@sdalt.ernet.in
Individuals
and countries abide by laws for their collective well being and have
been
in existence for many years. However, formal international
environmental laws have come into existence only during the
mid-nineteenth century, with conservation laws for wildlife
(fisheries, birds and seals) and conservation of the rivers and
seas. These laws were a result of human impacts on nature and the
environment.
The
next phase in the development of an international environmental
legal regime began with the creation of the intergovernmental
institutions like UN and specialized agencies in 1945. During this
phase, many international organizations emerged at the regional
level and countries began to address environmental problems at the
global level. In the late 1960s, there was a significant increase in
the number of multilateral international environmental agreements.
The
modern international environmental regime emerged roughly in 1972,
when countries gathered for the UN Conference on the Human
Environment in Stockholm where the United Nations Environmental
Programme (UNEP) was established. One major outcome was the
“Stockholm Declaration”, which has served as the basis for the
subsequent development of the international environmental law, such
as bilateral and multilateral conventions, treaties and agreements.
Also during this phase, many conferences and negotiations took
place, such as negotiations for the World Heritage Convention and
the Convention of International Trade in Endangered Species.
At the
Earth Summit in Rio de Janeiro in 1992, the United Nations
Framework Convention on Climate Change (UNFCCC) was the
centre piece of global efforts to combat global warming. It also has
been one of the international community’s most essential tools in
the struggle to promote sustainable development. A great deal has
been accomplished since Rio — but the most difficult decisions still
lie ahead.
Enforcement of international Environmental laws
International environmental laws are generally initiated as soft
laws that are not binding per se but play a
vital role in formulation of international environmental
rule-making. Soft law sources point to the likely future direction
of formally binding obligations by indicating acceptable norms of
behaviour. They also facilitate “codification and progressive
development” of rules of customary international environmental law,
which forms treaties and agreements at bilateral and multilateral
levels. Sometimes, treaties and agreements remain at the soft law
stage as a valuable instrument for enhancing or supplementing rules
of international environmental law within the treaties and
agreements.
There
are many principles which form the basis of the international
environmental laws. The Principle of State Sovereignty, which is
core to any international environmental law, states that: “The
country has sovereign rights over the natural resources of its
territory.” Other principles include The Precautionary Principle;
The Principle of Preventive Action; The Principle of
Intergenerational Equity, which means that as the members of the
present generation, we hold the earth for the future generation; The
Polluter pays Principle; The Principle of Sustainable Development,
which is one of the widely accepted principle in most of the
environmental treaties; and the Principle of Common But
Differentiated Responsibility, which is present in the UN Framework
Convention on Climate Change.
The
enforcement of international environmental laws has been enforced
through diplomatic channels and intergovernmental institutions like
UN. Enforcement also depends on domestic pressure, supervision and
application of international rules before domestic courts and
administrative, yet judicial institutions.
The
influence of various non-governmental organizations (NGOs) in the
field of environmental law and policy has been manifested in several
treaty negotiations, where their participation has resulted in
stricter rules and the acknowledgement of new progressive notions.
NGOs also play an increasing role in the implementation of
international agreements and treaties by acting as watch dogs with
respect to policy makers.
The
Kyoto Protocol
During
the Conference of Parties 3 (COP 3) in 1997 more than 160 nations
met in Kyoto, Japan to negotiate binding limitations on greenhouse
gases for the developed nations, pursuant to the objectives of the
Framework Convention on Climate Change of 1992. The outcome of the
meeting was the Kyoto Protocol, in which the developed nations
agreed to limit their greenhouse gas emissions, relative to the
levels emitted in 1990. The United States agreed to reduce emissions
from 1990 levels by 7 percent during the period 2008 to 2012 but US
later did not ratify the Protocol. It is important to note though
that in 1909, Water Boundary Treaty between United States of
America and Canada was the first one to commit its parties to
prevent pollution.
To
come into force, the treaty must be ratified by enough
industrialized nations to account for 55 percent of carbon emissions
in 1990, Kyoto’s baseline year. The US withdrawal put its leading 36
percent share off limits, making participation by the other major
players even more important. Russia, accounting for 17% of 1990
emissions, holds the second place.
The US
withdrawal from international negotiations over carbon emissions
dealt a blow to the Kyoto Protocol that many thought might be fatal.
However, Russia has emerged as an unlikely saviour. The only
impediment to the Kyoto protocol entering into force now is the
Russians. The only global agreement to save climate, which has been
ratified by 110 countries, is still in limbo. At the end of 1997 in
Kyoto, no one could predict that only Russian ratification would
block its entry into force, or that the fate of the protocol would
still be uncertain, even in mid-2003 after it had been ratified by
110 countries.
Without Russia, the Kyoto protocol cannot enter into force, assuming
the US does not change their position. Global efforts to combat
climate change will be undermined for at least 5–10 years; and
business confidence in carbon markets will be eroded. This means
that the rapid promotion of renewable energy technologies and energy
efficiency techniques expected will also be hampered.
Conclusion
So
far, the world community has accepted approximately more than 870
international legal instruments that have one or more provisions
addressing environment and nature, which includes bilateral and
multilateral instruments (binding and non-binding). Therefore, it
can be concluded that the situation is not all that gloomy and the
world community is aware of the dangers from environmental
degradation.
Russian reaction on the ratification of the Kyoto Protocol has been
controversial and incomprehensible so far. It seems that the Russian
position is unpredictable and subject to sudden change, so they may
ratify the Kyoto Protocol.
The
reason for non-enforcement of such a vital environmental treaty lies
in the failure of basic principles. The Kyoto Protocol is based on
The Principle of Common but Differentiated Responsibility, which has
developed the application of equity. But the very principle has not
been accepted by the major contributors to the greenhouse gases
causing global warming, like US and others. Hence, equitable
distribution and acceptance of the responsibilities has been absent
from the Protocol, which is the main reason for the non-enforcement
of Kyoto Protocol.
There
is an imbalance in the distribution of world economic and political
power and this has influenced inter-governmental institutions to a
considerable extent. These institutions play a vital role in the
enforcement of any environmental treat; hence this also is one of
the major reasons for the non-enforcement of Kyoto Protocol.
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