International Environmental Treaties and Institutions

&

Intersection with Business

Environmental Business Law-Lecture 2 Université de Cergy-Pontoise Prof. Patrick Clairzier Email: patrick.clairzier@u-cergy.fr

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Lecture Outline

1. Section1: The Role of International

Institutions and Organizations

2. Section 2: Environmental Treaties and

Institutions and the Intersection

with Business

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Why do we have IOs?

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Rethinking Global Governance

Ian Goldin: Professor of Globalization and Development, University of Oxford

https://www.youtube.com/watch?v=XlGvzoEDCWc

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Problems can’t be managed by individual states acting alone no matter how powerful

Arms Control/trade and Nuclear Weapons/WMD

Climate Change and Global Warming

Regional Conflicts

Multinational Corporations and their power

Economics, Trade, Financial Crisis

General Environmental Issues and Resource Depletion

Food and Water shortages Agriculture

Unbalance Power Between Nations

GM Food

Geopolitics

Health Issues

Human Population and Migration

Human Rights Issues

Iraq and Afghanistan Crises

Middle East

Natural Disasters

Palestine/Israel

Sustainable Development

Third World Debt

War on Terror

World Hunger & Poverty

Require coordinated interaction and cooperation to be resolved via a governance structure

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What is Global Governance?

• Commission on Global Governance 1995- defined it as “the sum

of the many ways individuals and institutions, public, and private,

manage their common affairs. It is a continuing process through

which conflicting or diverse interests may be accommodated and

cooperative action may be taken. It includes formal…as well as

informal arrangements that people and institutions have

agreed to or perceive to be in their interest.”

• Note: global governance is not global government it is not

supposed to be a top-down, hierarchical structure of authority.

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What are the Pieces of Global Governance?

Cooperative problem-solving arrangements and activities that states and other actors have put in place to deal with issues and problems-they include international rules or laws, norms or soft law, IGOs, decision-making and dispute resolution processes, information gathering and analysis and operational capabilities to deal with all sorts of developments and technical needs.

• International rules or laws (Hard) = 3000+ multilateral agreements, customary practices and judicial opinions. (Int Humanitarian Law = Geneva Conventions)

• Norms or Soft Law = some human rights, some labor rights and framework conventions on climate change and biodiversity (Declaration of Human Rights)

• Structures formal and informal = IGOs, international courts, global conferences, Group 8, NGOs providing humanitarian relief, development aid, human rights monitoring, Ad hoc conferences such as for landmines treaty

• International regimes = linked principles, norms, rules, decision-making structures for a given issue area such as trade, nuclear proliferation, food aid, transportation,

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Examples for the list above

• International laws (laws that apply across national boundaries) are treaties negotiated and ratified by the governments of the participating nations.

• The definition of a ‘norm’ is generally stated as “a standard of appropriate behavior for actors with a given identity.” – Human rights and (International Classification for Standards). ICS is a way of classifying standards into fields such as electrical engineering or paper

• An institution is a collection of norms and rules about a particular subject such as sovereignty and slavery.

• Regimes "are more specialized arrangements that pertain to well-defined activities, resources, or geographical areas and often involve only some subset of the members of international society." Examples CITES (Convention on International Trade in Endangered Species of Wild Flora and Fauna), the Basel Convention which governs the international movement of hazardous waste, Regimes may or may not take the form of international organizations. The global nuclear regulatory regime, the International Atomic Energy Agency. treatment of prisoners of war.

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A distinction must be made between International Institutions and International Organizations

• “to achieve order states have created international institutions… which are

defined as complexes of norms, rules, and practices that prescribe behavioral

roles, constrain activity and shape expectations…while international organizations

are physical entities that have staff, head offices…institutions can exist without

organizational structure.” (Baylis, 2007)

• International nongovernmental organizations (INGOs): non-governmental

organizations (NGOs) two types: International non-profit organizations and .

Multinational corporations.

• Intergovernmental organizations, made up primarily of sovereign states :

examples include United Nations (UN), Organisation for Economic Co-operation

and Development (OECD), World Bank and International Monetary Fund

• Note: The first and oldest intergovernmental organization is the Central

Commission for Navigation on the Rhine, created in 1815 by the Congress of

Vienna.

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What are the principal functions accorded to international organizations?

They may be summarized under four headings:

• studies or the collection and dissemination of

information;

• setting internationally acceptable norms;

• fostering cooperation through meetings;

• engaging in technical cooperation activities.

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Note: these require some intrusion in the domestic affairs

of nations by other actors public and private.

What is State Sovereignty and nonintervention? The concept of sovereignty became a central tenet of International Relations (IR) beginning at the end of the Thirty Years War between European states with the signing of the Treaties of Westphalia in 1648. The treaties codified the concept of the equality of sovereign states and the right of noninterference in each others’ affairs.

Over the four hundred years since the establishment of the Westphalian nation-state system, more powerful states have repeatedly violated the territorial, economic, and political sovereignty of other, weaker states in pursuit of their national interests. Notwithstanding the numerous examples of states violating each other’s sovereignty, today the nation-state stands as the foundation on which the current definition of sovereignty within mainstream IR thinking is constructed.

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What are the theoretical foundations of global governance? 1

• International Liberalism = “The concept of liberal internationalism is

often associated with former US President Woodrow Wilson, thus

sometimes being referred to as ‘Wilsonianism’ (Hoffman, 1995: pg

159). Wilson suggested that the cause of instability and conflict was

the “undemocratic nature of international politics”, particularly in

regards to foreign policy and the balance of power (Baylis et al. 2008:

pg 111). Having identified the cause of conflict, it is possible to suggest

that the aims of liberal internationalism are expanding democratic

practices and free trade, defending democracy from its rivals while

protecting and promoting human rights” (Miriam Dornan, 2011). They

see norms modifying state behavior.

• Neoliberalism = believes that interaction base on self-interests

regardless of the injustice and inequalities in the international system

provides the best framework for private/public players in the system to

build trust, cooperation and a functioning prosperous system. They

advocate for free association which for them the free-market

represents the highest form of that.

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Realism = believes that individuals and states are generally power seeking and act only in self-interest to accumulate power and ensure security in an anarchic world. So states use the international institutions as tools to achieve their desires thus they assert the irrelevance of international institutions, because they do not alter the self-interested anarchic system of States.

Marxism = based of the concept Historical materialism – in order for humanity to survive it must reproduce the material requirements for life thus Social organization is driven by forces of economic production first and fore most and those that control the forces of production control society. So it rejects the realist/liberal view of state conflict or cooperation, instead focusing on the economic and material aspects of society. Economics trumps other concerns, viewing the international system as an integrated capitalist system in pursuit of capital accumulation. Thus, the period of colonialism brought in sources for raw materials and captive markets for exports, while decolonialization brought new opportunities in the form of dependence.

What are the theoretical foundations of global governance? 2

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Role of International Organizations in World Politics

Three Dominant Views

Liberal: “It is widely believed that international organizations should be

responsible for the maintenance of international peace and stability, be

this economic, social or political, and that they should act in the interest

of the international community.” (Sophie Crockett, 2012)

Realist: Classical and neo-realists claim the international system is an

anarchic, self-interested, power struggle between States, which is why there

is a vast amount of distrust in global institutions such as the UN. But many

have affirmed that, “in a world of multiple issues imperfectly linked, in

which coalitions are formed transnationally and trans governmentally,

the potential role of international institutions is greatly increased.”

(Nye and Keohane: 1989)

Neoliberalism = believes that interaction base on self-interests regardless

of the injustice and inequalities in the international system

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Section 2: Environmental Treaties and

Institutions and the Intersection

with Business

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Multilateral Environmental Agreements 1 Sources International Environmental Law

• “International law concerns principles, rules, and norms that

are binding on nations and sub-national actors. It consist of

Hard international law which refers to agreements or principles

that are directly enforceable by a national or international body.

Soft international law refers to agreements or principles that are

meant to influence individual nations to respect certain norms

or incorporate them into national law.” (Rosencranz, Kibel, and

Yurchak, 1999)

• “International environmental law (IEL) is the study of the

norms, means and processes to address global and regional

environmental challenges…It includes the study of how

treaties, principles, custom and other sources of international

law can be used to address these strains.” (May and Kelly,

2013)

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Principle judicial organ of the United Nations (UN) the International Court of Justice

(ICJ) in Article 38 (1) of its statute establishes the four sources of international law

and their respective hierarchy in settling disputes.

1. The Court, whose function is to decide in accordance with international law such

disputes as are submitted to it, shall apply:

a) international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states; (Treaties)

b) international custom, as evidence of a general practice accepted as law; (Customary

international law)

c) the general principles of law recognized by civilized nations; (general principles)

d) subject to the provisions of Article 59, judicial decisions and the teachings of the

most highly qualified publicists of the various nations, as subsidiary means for the

determination of rules of law. (Precedent --judicial decisions )

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono (what is just and

fair or according to equity and good conscience), if the parties agree thereto.

Multilateral Environmental Agreements 2 Sources International Environmental Law

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Multilateral Environmental Agreements 2.1 Sources International Environmental Law

Definitions

Treaty: Article 2(1)(a) of the 1969 Vienna Convention defines it as “an international agreement

concluded between states in written form and governed by international law, whether embodied in

a single instrument or in two or more related instruments and whatever its particular designation.”

It encompasses, the terms convention, agreement, pact, protocol, charter, statute, covenant,

engagement, accord, exchange of notes, modus vivendi, and Memorandum of Understanding.

International Customary Law: two criteria for determining if a rule of international customary

law exists: (1) the state practice should be consistent with the “rule of constant and uniform usage”

(inveterata consuetudo) and (2) the state practice exists because of the belief that such practice is

required by law (opinio juris). Both elements are complementary and compulsory for the creation

of customary international law. Since customary law requires this rather heavy burden of proof

and its existence is often surrounded by uncertainties.

General principles of Law: are basic rules whose content is very general and abstract, sometimes

reducible to a maxim or a simple concept. (Please see section 2 of lecture 1 for more details)

Judicial Decisions: article 38(1)(d) of the Statute of the International Court of Justice, judicial

decisions and the teachings of the most highly qualified publicists of the various nations, is

qualified as an additional means for the determination of rules of law. Decisions of the ICJ itself or

of other international tribunals, and writings of publicists are considered if: there is no treaty on a

particular contentious issue in international law, no customary rule of international law and no

applicable general principles of international law. (United Nations Environment Programme and IUCN Academy of Environmental Law- Kurukulasuriya and Robinson)

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International level implementation Montreal Protocol (MP) International law national law national implications

• Recognized as one of the most successful Int Env agreements because all stakeholders helped

design it and formal non-compliance procedures can be invoked by any party to the Protocol

• Established institutions- Meeting of the Parties to the Montreal Protocol (MOP)- ensure

effective implementation keeps the Protocol’s implementation under continuous review. It

adopts amendments, makes adjustments in time schedules and additions to or removal from any

Annex of substances

• During the negotiations three major issues: 1) broad adherence to the MP was essential and

concern about the financial abilities of developing countries to implement the MP. 2) MP

needed to be drafted in a flexible way in order to timely adjust to new scientific evidence and

changing needs of its parties. 3) determine an economically feasible and detailed time schedule

for the phase out of ozone depleting substances.

• Establishes firm targets for reducing and eventually eliminating consumption and production of

a range of ozone depleting substances.

• Precautionary action proved to be possible, necessary and successful. US chemical industry

helped to lead the way recognizing problem and its willingness to seek replacement substances.

• Differentiated responsibility recognized developed nations bore more responsibility for the

creation of the problem and provided longer period of adaptation for developing countries and

new financial and technical incentives were adopted to encourage developing countries to

switch as quickly as possible to alternative substances and technologies.

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• Malaysia- Government of Malaysia created a National Steering Committee for Environment

and Development (“NSCED”), which paved the way for Malaysia's ratification in 1989.

NSCED is comprised of a Technical Committee and Industrial Working Groups and other

groups were established later to keep pace with the Protocol's amendments.

• 1996, the Department of the Environment created the Ozone Protection Unit (“OPU”) to serve

as the focal point and monitor Malaysia's phase-out activities.

• Key features of Malaysia's response and implementation strategy is the concept of integrated

stakeholder partnership with the industrial sector. Active involvement of Civil Society and

Non Governmental Organizations

• Canada --As an early signatories to the 1987 Montreal Protocol, Canada ratified it in June

1988 has since made significantly reduced the emissions of ozone-depleting substances.

• Canada implemented the 1987 Montreal Protocol through strong control measures by federal,

provincial and territorial governments, changes in technologies and voluntary actions by

industry.

• Canada has adopted regulations to meet its Montreal Protocol commitments. The Ozone

Depleting Substances Regulations (1998) and subsequent amendments are administered under

the Canadian Environmental Protection Act (1999). These regulations control the import,

manufacture, use, sale and export of ODS. They require gradual reductions of production and

import of these substances according to fixed schedule established by the Montreal Protocol.

National level implementation Montreal Protocol (MP) International law national law national implications

(United Nations Environment Programme and IUCN Academy of Environmental Law- Kurukulasuriya and Robinson)

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Dupont

• International law corporate adoption, business implications

• Quick compliance with Montreal Protocol and elimination of CFCs

• Developed new products for internal and external use

• Pushed standards and time tables for the corporate community

• Developing new products to comply with the UNFCCC—before there are

even compliance standards set by the UNFCCC

• Ahead of the curve, innovative, business advantage-HFCs

Corporate level implementation Montreal Protocol (MP) International law national law national implications

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IEL Inducing Regional National and Local level Policy

Ecolabelling

“Ecolabelling is a voluntary method of environmental performance certification and labelling that is

practiced around the world. An ecolabel is a label which identifies overall, proven environmental

preference of a product or service within a specific product/service category.” (Global Ecolabelling

Network)

• Consumer information tools based on the principles of modern governance such as transparency,

participation and shared responsibility between government, private sector and civil society to

contribute to reaching sustainability policy objectives.

• World Summit on Sustainable Development (WSSD) 2002, stakeholders reaffirmed commitment

to the Rio principles with the introduction and agreement to the Johannesburg Plan of

Implementation (JPOI). The JPOI called for stakeholders to “develop and adopt, where

appropriate, on a voluntary basis, effective, transparent, verifiable, non-misleading and non-

discriminatory consumer information tools to provide information relating to sustainable

consumption and production.

• It encourages and promotes the development of a 10-year framework of programs in support of

regional and national initiatives to accelerate development of ecolabels

• Today ecolabelling projects exists in developed and developing regions and countries: Singapore,

China, Brazil, USA, Australia, Thailand, Malaysia and Europe to name a few.

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Business and Compliance of Multilateral Environmental Agreements

Business provide much-needed commodities, services and undertake a variety of export

and import related economic activities. Providing employment, and a source of

livelihood for many people across the globe. However, they also contributes greatly to

environmental damage and depletion of natural resources.

Thus, laws, rules and regulations have been created specifically to control business

activities to prevent these harms.

Three levels of Environmental Law

International and Regional level: law exists in the form of binding rules and

regulations that have been established in international treaties and agreements and

customary practices.

Regional level: such as the European Union and the North American Free Trade

Agreement, both legal instruments and voluntary codes of conduct help regulate

environmental impacts.

National level: countries create domestic laws to regulate businesses. Some created do

to rules stipulated by international agreements. In addition, there is self-regulation in

the business community.

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Compliance & Enforcement of Multilateral Environmental Agreements

Compliance with and enforcement issues in MEAs were negotiated between the states

implementing any international environmental legal instrument. But more recently the

international community has been developing mechanisms to assist and promote compliance.

2002 Governments in the UNEP Governing Council recently adopted decision SSVII/4 setting

global guidelines on enhancing compliance and enforcement referred to as Guidelines for

Compliance with and Enforcement of Multilateral Environmental Agreements.

Compliance means the conformity with obligations, imposed by a state, its competent authorities

and agencies on the regulated community, whether directly or through conditions and

requirements, permits, licenses and authorizations, in implementing MEAs Compliance also

means the fulfilment by the contracting parties of their obligations under a MEA.

Environmental law violation means the contravention of national environmental laws and

regulations implementing MEAs.

Environmental crime means the violations or breaches of national environmental laws and

regulations that a state determines to be subject to criminal penalties under its national laws and

regulations.

Enforcement means the range of procedures and actions employed by a state, its competent

authorities and agencies to ensure that organizations or persons, potentially failing to comply

with environmental laws or regulations implementing MEAs, can be brought or returned

compliance and/or punished through civil, administrative or criminal action.

(United Nations Environment Programme and IUCN Academy of Environmental Law- Kurukulasuriya and Robinson)

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Example: EU Law v. National Law 1

Court of Justice of the European Union or European Court of Justice (ECJ)

• Established in 1952 highest legal authority in EU

• Ensures the activities of EU institutions are within their legal mandate

• Ensures EU Members are complying with their numerous EU treaty

obligations

• Adjudicates cases between Member States and their challenges to EU Laws

• Considered the interpreter of EU Law and ensures the enforcement of the

rules and regulations across the community. Pro

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Key Concept

Doctrine of Supremacy - Costa vs. ENEL (1964) this case established the precedent of the

supremacy of EU law over National law of Member States. Thus, Member States relinquished

a certain level of Sovereignty in the process.

Internationale Handelsgesellschaft GmbH v Einfuhr- und Vorratsstelle für Getreide und

Futtermittel (1970)- in this case the ECJ held that EU law takes precedence over the

constitutional laws of member states as well as national law.

EU Law Supremacy is not be seen as hierarchical such as the Supremacy Clause in the United

States Constitution.

Members such as Germany claim the ‘right of review and reservation.’

Members still contend that their respective Judicial systems have the right to scrutinize the

level of fundamental rights protection of EU Law,

A preparedness to look at whether the EU has grossly over-stepped its competency as set out

in the Treaties

Example: EU Law v. National Law 2

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Three common Litigation Claims that Businesses Face

• Profits over safety

• Suppression of knowledge

• Business Negligence

MDL No. 2179 In re: Oil Spill by the Oil Rig “Deepwater Horizon” Judge Carl J.

Barbier of the U.S. District Court for the Eastern District of Louisiana oversees this

MDL in New Orleans: a consolidation of thousands of lawsuits regarding impacts of

the oil discharge. The lawsuits involve the following claims:

• Economic loss claims of individuals, businesses, and governments;

• Medical injury claims of individuals;

• Clean Water Act (CWA) civil penalty claims.

BP oil spill triggers lawsuits: https://www.youtube.com/watch?v=rC9V-yiL96U

BP Oil Spill 5 Years Later: https://www.youtube.com/watch?v=B5pZzinEkxk

BP Deepwater Horizon Oil Spill

Ruling September 2014, found BP guilty of deliberate misconduct and gross

negligence, which means the company is subject to a possible $18 billion in

penalties in addition to the $28 billion already paid out for cleanup costs.

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Environmental Business Law: Lecture 2

END

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