Daniel Bodansky 1
5 Implementation, compliance and effectiveness
Translating policy into action is notoriously difficult. Many policies are characterized, as Richard Elmore once quipped, by ‘grand pretensions, faulty execution and puny results’.57 Because international environmental law typically aims to control not merely state conduct but also private conduct, its implementation poses particular challenges.
States serve as the primary transmission belt for putting international environmental rules into effect, with international environmental agreements generally imposing obligations on states and relying on states to implement their commitments. For this reason, the success of treaties such as the Montreal Protocol, the Kyoto Protocol,58 and CITES depends on the degree to which they are ‘domesticated’. Some treaties spell out the duty to implement explicitly; but, even in the absence of any explicit provision, the rule of pacta sunt servanda59 – the foundation of international treaty law – requires states to do whatever is necessary to implement their treaty obligations.
Implementation is not simply a technical, top-down process, involving directives from the government. Rather, in practice, it is a political process in which industry groups and environmental organizations all participate to varying degrees. Industry can contribute positively by providing expertise in designing technically feasible and
56 ‘Large-scale pelagic drift-net fishing and its impact on the living marine resources of the world’s oceans and seas’, UNGA Res. 45/215 (1991).
57 Richard F. Elmore, ‘Organizational Models of Social Program Implementation’, 26 Public Policy (1978) 185–228 at 186.
58 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto, 11 December 1997, in force 16 February 2005, 37 International Legal Materials (1998) 22.
59 This Latin maxim, observed also in many national legal systems, means that ‘contracts are served’ or
‘promises must be kept’.
cost-effective approaches; but it may also seek to weaken implementation measures in order to reduce its own adjustment costs. Public participation is also an increas-ingly integral part of the national implementation process.
Treaties vary considerably in how much freedom they give states in the choice of implementation methods. In most cases, international law gives states significant discretion as to the choice of implementation methods. A typical formulation found in many treaties simply requires states to take ‘appropriate’ measures; which allows each state to take into account its own legal system, regulatory culture, and other national circumstances in determining what measures may be ‘appropriate’. At the far extreme, treaties establishing an obligation to achieve some overall result, such as the national emissions targets in the Kyoto Protocol, give states almost complete flexibility in determining how they will reach the required outcome – whether by means of education, emission limits, product standards, subsidies, taxes, voluntary agreements with industry, and so forth. At the other end of the spectrum, some agreements set forth quite specific obligations of conduct that leave little discretion.
For example, MARPOL60 requires that flag states prescribe precise rules for the con-struction and design of oil tankers, and to prohibit and sanction violations of these standards by vessels operating under their authority.
A threshold issue in treaty implementation which often arises is that of whether implementation requires national legislation. For a variety of reasons, sometimes the answer will be ‘no’. A treaty may focus on governmental actions such as reporting, which can be performed by the executive branch on its own authority, without any need for legislative approval. Alternatively, under a country’s constitution, treaties may have the force of domestic law directly, making additional legislative implemen-tation unnecessary; or existing legislation might provide the necessary authority for implementation of a treaty’s obligations. Even when implementing legislation is re-quired, however, the adoption of legislation is usually only the first step in the plementation process. Most treaties require also various types of administrative im-plementation; such as further rule-making to give greater specificity to general legislative mandates, monitoring and assessment, preparation of reports, issuance of permits, and the investigation and prosecution of alleged violations.
In contrast to legislative and administrative implementation, judicial implementa-tion of internaimplementa-tional environmental law remains comparatively rare. A notable excep-tion was a Philippines case which applied the principle of intergeneraexcep-tional equity61 to allow a group of children to challenge timber licences issued to log in old growth forests.62
60 See supra note 17.
61 The principle that the rights and interests of future generations should be given consideration alongside those of present generations.
62 Minors Oposa v. Secretary of Environment and Natural Resources, Supreme Court Reports Annotated (G.R.) No. 101083, (S.C. July 30, 1993), reprinted in 33 International Legal Materials (1994) 174.
Even in the absence of international enforcement, many (if not most) states do im-plement their international environmental obligations almost as a matter of course.
Many causal factors help to account for this practice of self-implementation: bureau-cratic routines, calculations of self-interest, a sense of normative commitment, or severe pressure (or even litigation) by environmental groups.
6 Conclusion
It might be asked, in conclusion, whether international environmental law has been successful; and whether it is on the right track. Certainly, in many respects interna-tional environmental law falls short of these two goals. But although it has failed so far to solve many pressing problems, such as climate change, it has also had some notable successes. In achieving these successes, it has displayed impressive ingenuity, developing a wide range of mechanisms to set standards and promote implementa-tion.
It remains to be seen whether the world will be able to move beyond the third stage of its development, as discussed above,63 and become a coordinated whole instead of being characterized by piecemeal development.
Ultimately, international environmental law ought not to be seen as a panacea, but rather as a process to encourage and enable international cooperation. It represents a part – and only a part – of the solution to the environmental problems facing the world.
63 See supra Part 2.1.