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«EURASIAN INTEGRATION: LEGAL AND EDUCATIONAL ASPECTS Novosibirsk, 3–5 of December 2014 SECOND SCHOOL OF INTERECOLAW Novosibirsk, 4–5 of December ...»

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and the transboundary pollution by a Canadian smelter in the United States (US) in 1935 [50]. Such regional or bilateral issues gave rise to correspondingly regional norms or bilateral agreements, which, in fact, continue to comprise the majority of international environmental law today [51].

More recently, environmental issues have become increasingly globalized [52]. Marine pollution, ozone depletion, acid rain, and climate disruption were among the first global environmental issues to receive the attention of the international community. MEAs with a global scope of applicability were adopted, some of which now enjoy near universal membership. Although the geographical divisions have become blurred to some extent, the sectoral divisions persist along the lines of sub-specialisms of international environmental law. We have separate laws by type of pollution or source of generation. For example, there are separate treaties for fisheries, marine pollution, and climate change regulation, which were developed independently of each other without reference to the ways in which they would interact or create regulatory gaps and overlap.

Therefore, each MEA is limited to the particular sectors or activities within its mandate, to the environmental media it is intended to address, and to its geographic area of application [53]. The result is a series of piecemeal international legal responses to the larger patterns of global environmental change through the proliferation of ‘autonomous institutional arrangements’ of modern MEAs [54]. International environmental law has evolved into a fragmented, as opposed to an integrated and coordinated, system [55]. There is no single authority, but multiple, formally independent centres of decision-making with equal legal authority to act on different aspects of the global environmental crisis [56]. Although international environmental law has developed a certain level of coherence through the inclusion of general principles in different legal instruments [57], its core value system remains weak and vague [58].

As such, the historical conditions have not been conducive to the emergence of a single goal. The concept of a goal here is intended to mean a grundnorm that gives all international regimes and organizations a shared purpose to which their specific treaty objectives must contribute. The goal or grundnorm would be in the form of an amalgamation of minimum environmental standards that are essential for protecting planetary boundaries. It would establish a normative hierarchy and function as a supreme norm that prioritizes planetary environmental concerns, to which all other subsidiary rules and principles must adhere.

In thinking about the integration of a grundnorm in this way, it is useful to juxtapose international environmental law with other branches of international law with clearly identifiable goals. The ultimate goal of international human rights law, for example, is to ensure that every human being can fully experience human security, particularly in relation to the government [59]. The Universal Declaration of Human Rights [60] has been regarded as the constitution in that field of law, the norms of which have now assumed acceptance at the level of customary law that binds all states. The goal of international trade law, ‘free trade’ or the liberalization of the trade systems worldwide, although still the subject of significant controversy, is nevertheless a dominant mode of practice [61]. Many of the different issue areas of world trade law are currently being regulated under the overarching principles enshrined in the Agreement Establishing the World Trade Organization [62].

These are some examples of ‘superior’ norms that override other norms and bind almost all states [63]. Yet international environmental law lacks such a normative hierarchy comparable with that of international trade and human rights law.

Some might opine that the 1972 Stockholm Declaration [64], the 1982 World Charter for Nature [65], or the 1992 Rio Declaration on Environment and Development [66], set out fundamental goals of international environmental law. However, such a claim could arguably be dismissed on the ground that none of them Интерэкоправо в антропоцене: к вопросу о целенаправленной системе... 203 has constitutional features [67]. The Rio Declaration, which is probably the most authoritative document in international environmental law, provides at best a ‘framework of global reference’ [68]. It bears little resemblance to the Universal Declaration of Human Rights or to the international covenants on human rights [69]. In particular, the Rio Declaration, being soft law in nature [70], does not create a normative hierarchy [71] and lacks the capacity to exercise real constraint on the behaviour of states. As Bodansky put it, ‘international environmental law as a whole lacks the hallmarks of a constitutional order’ [72]. The system remains an incoherent set of commitments by states without a clearly established value hierarchy [73].

4. Dysfunction of international environmental law in the absence of a goal An important, but often overlooked question [74] is how the absence of such a single unifying goal or grundnorm has affected the overall functioning of international environmental law. In the discussion that follows, we provide an explanation as to why we should agree on and specify a grundnorm of international environmental law and how it would make a difference.





4.1. The Current Mode of Institutional Cooperation and Coordination UNEP has not been effective in accomplishing its mission of coordinating environmental programmes within the United Nations (UN) system [75]. The international community has, more or less, relied on the self-organized mode of coordination and cooperation among its international regulatory regimes [76]. Many modern MEAs, such as the UN Framework Convention on Climate Change (UNFCCC),77 include provisions that oblige their secretariats ‘[t]o ensure the necessary coordination with the secretariats of other relevant international bodies’ [78]. Similarly, the Conferences of the Parties (COPs) are required to ‘[s]eek and utilize, where appropriate, the services and cooperation of, and information provided by, competent international organizations and intergovernmental and non-governmental bodies’ [79]. The treaty bodies sometimes enter into formal arrangements by signing bilateral Memoranda of Understanding with other such bodies or international organizations with an aim of enhancing cooperation and partnership [80].

However, there are inherent limits to horizontal coordination. From a governance perspective, this method is one of integration by stealth [81], in which coherence is advanced in a piecemeal approach through cooperation on technical matters, while avoiding the fundamental questions of raison d’être and organizing principles of international environmental law as a whole. Environmental conflicts are normative in nature and cannot be fully resolved solely by technical cooperation [82]. Fostering linkages between individual regimes might be a pragmatic solution to institutional ad hoc-ism [83], but insufficient to address normative fragmentation in the context of global environmental governance [84]. The different environmental objectives of individual MEAs need to be balanced in a principled manner [85].

Furthermore, from a legal perspective, the obligations of treaty bodies to cooperate and coordinate with others are conditioned by due respect for the legal autonomy of the treaties [86]. It has been noted that ‘any effort by actors in one regime to influence rule development in another will be limited by the extent to which memberships are congruent’ [87]. For example, an important barrier to cooperation between the UNFCCC and the Convention on Biological Diversity (CBD) [88] has been that the US is party to the former, but not to the latter. In its submission to the UNFCCC, the US noted that these ‘Conventions have a distinct legal character, mandate and membership’, and insisted that biodiversity issues be dealt with outside the UNFCCC [89].

Similarly, at the 11th meeting of the UN Open-Ended Informal Consultative Process on Oceans and the Law of the Sea in 2010, the Group of 77 and China emphasized the need to avoid choosing topics such as climate change, which fell within the mandate of specific international organizations or institutions [90].

The legal autonomy of the treaties has been emphasized repeatedly because ‘importing’ concepts or rules between treaties with different memberships is perceived as an erosion of national sovereignty [91]. This is a legitimate concern which relates to the question of accountability of the regime to its state parties and, more generally, to the legitimacy of that regime [92]. However, the same concern has made MEAs inward-looking, either unable or reluctant to share or give away part of what they perceive as their ‘sovereignty’ [93]. In a sense, national sovereignty of states has been translated into ‘institutional sovereignty’ of treaty regimes [94]. This is particularly problematic in the field of international environmental law. Although the same holds true for human rights treaties, most human rights norms have attained the status of jus cogens, and hence they are universally applicable irrespective of state consent.

204 Р.  Э. Ким, К. Боссельман   Where an MEA regime seeks to extend its scope to link with other agreements or organizations, due care needs to be exercised to ensure it is not seen as an attempt to intrude on the work of other bodies. Often the best an MEA can do is merely to make information available for use. Information exchange between the UNFCCC and other institutions takes place largely on an ad hoc basis or relies on the submissions of individual parties or observers. For example, the CBD established the Ad Hoc Technical Expert Group on Biodiversity and Climate Change to issue a series of reports, in the hope that the reports’ recommendations will be reflected in the future decisions of the COP to the UNFCCC. However, for the UNFCCC, the connection with issues other than its own has been seen as an unwanted distraction to achieving its narrowly defined and interpreted object and purpose.

4.2. Environmental Problem Shifting among Planetary Boundaries The neglect for cross-sectoral interactions on the part of MEAs comes with a high risk of transfer of harm or hazards from one area or medium to another, or the transformation of one type of environmental harm into another. This so-called ‘problem shifting’ can even happen as an unintended consequence of action taken to protect a part of the environment. A number of MEAs, including the UN Convention on the Law of the Sea (UNCLOS), have a provision aimed at preventing such environmental problem shifting, yet the issue has received little attention. A quantitative analysis of the extent of problem shifting across the entire institutional landscape is beyond the scope of this article. What follows are some selected illustrative examples of problem shifting across planetary boundaries.

A notable example of environmental problem shifting across multiple planetary boundaries is the expansion of biofuel crop plantations for the purpose of climate change mitigation. Biomass combustion is assumed to be carbon-neutral under the greenhouse gas accounting rules of the UNFCCC [104]. However, in many cases, expanding the cropland for the feedstock involves clearing of land and incurs a ‘carbon debt’ that is unaccounted for [105]. The time required for biofuels to offset the carbon dioxide (CO2) emissions released during land clearing has been estimated to be from 100 to 1,000 years, depending on the specific ecosystem involved in the land use change event [106]. For example, converting forests currently sequestering CO2 to bioenergy crops, harvesting live trees for bioenergy and allowing forest to regrow, diverting crops or growing bioenergy crops on otherwise high-yielding agricultural land are likely to result in a net increase in CO2 emissions in the near term [107]. In terms of problem shifting, replacing gasoline with bioethanol shifts the net environmental impacts primarily towards increased eutrophication and water scarcity through greater use of fertilizers and freshwater.108 Furthermore, using agricultural land for cultivating biofuel feedstocks naturally leads to less production of food, endangering food security [109].

Similar forms of problem shifting can be observed in afforestation and reforestation projects, which are driven partially by perverse incentives that promote the conversion of natural forests into monoculture tree plantations. At the heart of this problem is the definition of ‘forest’ [110] adopted in 2001 under the Marrakesh Accords of the Kyoto Protocol [111]. It inadvertently allows continued unsustainable exploitation of forest resources principally because natural forests and plantations are not differentiated [112].

Refining the definition is required to prevent problem shifting from climate change to biodiversity loss. It will also be an important factor in ensuring the successful operation of the Reducing Emissions from Deforestation and Forest Degradation Programme (REDD1) and delivering co-benefits to other environmental efforts such as biodiversity conservation [113].

Ocean fertilization provides another example of potential environmental problem shifting. Ocean fertilization is a type of geoengineering based on the purposeful introduction of nutrients such as iron into the upper ocean to encourage phytoplankton growth, which in turn is expected to remove CO2 from the atmosphere. However, there are many uncertainties involved with quantifying the amount of CO2 removed on a long-term basis and the likely impact on marine ecosystems and biodiversity [114]. The 2008 COP to the CBD requested its parties, and urged other governments, to ensure that ocean fertilization activities do not take place until there is an adequate scientific basis on which to justify such activities [115]. However, arrangements for international governance of further field-based research on ocean fertilization are currently being developed [116], primarily under the London Convention [117] and its Protocol [118].



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