Crimes Against Nature: The Hard Truths of Soft Law

Written by Christian Delev, LLB 2

 

 The Horns of the Dilemma

Political controversy over the environment pales at the havoc wreaked to date. With iridescent, oily waves ebbing and flowing in the Persian Gulf, cities cloaked in lethal mists in China, the community of nations is faced with a fateful juggernaut. NASA’s vital signs show that the current atmospheric concentration of carbon dioxide has reached 406.17 ppm, exceeding amounts as far back as those 400 thousand years ago. This disastrous trend correlates with the exponential temperature rise of the Earth’s surface. Augmenting this mix, global sea level rise has increased up to 3.4 mm/year as of February 2017. This drift towards destruction, affirmed as ‘human-induced’ by at least 18 scientific associations, has led some scientists to claim that a Holocene Extinction has already begun.

 

In light of these well-verified facts, the international community has witnessed the emergence of international environmental law. This contradicts classic models by William Forster Lloyd and Thomas Malthus that envisioned inherent antagonism between people, profit, and planet. These models portray that natural resources are depleting because of human activity, monetary depletion causes social inequality, and the escalating growth of the world’s population spins these vicious cycles ever more rapidly. The modern environmental outlook was pioneered in the sustainable development definition offered in the Brundtland Report: ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs.’ While many landmark successes have been achieved, they have almost all been pyrrhic. Amongst the issues present, one of the most significant breakdowns persists at the vanguard of international efforts: soft law. Defined as ‘guidelines of behaviour… that are not binding in themselves but are more than mere statements of political aspiration’, this approach reaches for a reasonable middle ground between environmental conservationism and local interests.  While many successes of such treaties are undeniable, their tone and ideals have faltered in overcoming pressing environmental hurdles. Thus, focus will be placed in this article on the lack of application of soft law principles in domestic and intergovernmental measures, the uneven successes in conflicting aspects of environmental degradation, and how the ‘common but differentiated approach’ principle has transferred environmental protection from the global to regional plane. Furthermore, suggestions for the improvement of the contemporary environmental law framework will be made.

 

High Hopes and Low Outcomes

Soft law has become the forefront of international environmental law as a form of social, international cohesion since the 1990’s. It can be claimed that environmental law does not consist of a clear ‘dichotomy’ between hard and soft law, with soft law existing outside and within treaty frameworks, even the United Nations’ ‘climate regime’. Soft law has had its practical advantages, including aiding faster recognition of environmental issues and the safe and secure procurement of political frameworks that aspire to be domestically translated into results. The presence of soft law can be credited to historical state reluctance to enact environmental measures. For example, in 2012, the United States had failed to ratify 10 major environmental treaties it had signed. Soft law is a development that assists the environmental law regime in forming an environmental consensus among domestic regimes through political declarations.

 

However, while there are some verifiable benefits of employing soft law cohesively next to hard law, present-day outcomes are threatened by the predominant role played by such non-binding obligations. While soft law may present principles that allow for budding issues to be solved in the future, even its supporters accept that in the absence of supporting regulations and repercussions, as is the case of the Rio Declaration, it becomes obsolete. Likewise, the issue of whether international commitments are translated into domestic law brings about the question of effectiveness. Although soft law aims at progressively moving towards a trend of international and domestic legalization, this has been a slow and unsteady process. Exemplary of this is the recent failure of the United Kingdom to follow up on its air pollution obligations per the Aarhus Convention. As no repercussions were listed, the convention lacks the incentive to force states to act within legally binding limits. Lastly, the fusion of soft and hard law risks diluting the lines between binding and non-binding provisions. As Rajamani has pointed out concerning the 2016 Paris Agreement, this practice threatens to transform genuine obligations into unenforceable aspirations. Hence, the peril of environmental detriment is not met with commensurate measures, but merely with high hopes of political communion.

 

Unevenly Yoked

In its development, environmental protection has witnessed numerous successes, amongst them the Montreal Protocol, which has regimented modern efforts to fight the release of atmospheric pollutants. These achievements have underlain critical victories in the fight against ozone hole growth, with scientists concluding in 2016 that ‘healing of the Antarctic ozone hole is emerging’. However, this positive outcome is antithetical to other climate change efforts. In 2014, the Intergovernmental Panel on Climate Change declared that the ‘warming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia.’ The vast disparity between outcomes boils down to political understanding seemingly surpassing the needed call for action. While this is in many ways a short-term solution to decreasing interstate tension and presumably adapting principles to domestic circumstances, too much is at stake in the gamble.

 

Environmental law is tested by a success-rate disparity. Climate change, pollution management, amongst other fields, have shown that the use of soft law architecture is a timely process that cannot effectively deter these staggering processes. While some contend that such methods ultimately help localise environmental crises, tackling them faster and more broadly, a better result may be reached when a more complex and well-regulated instrument is created, as was the case with the Montreal Protocol. Indeed, as then-Prime Minister Gordon Brown commented following the Copenhagen Accords, the soft law framework served as a ‘vital first step’; however, ‘a legally binding treaty as quickly as possible’ is truly needed.

 

The gap between environmental efforts likewise leads to an overall slowing of international efforts. Frequently, compromises are reached to involve more and more states in treaties. By doing so, the duties that can be imposed on states showing a willingness to be bound are sometimes limited, as was the case with the aforementioned Copenhagen Accords. However, certain flexible elements within treaties also arise from the trending decline of hard law. Indeed, the Kyoto Protocol’s administration of a carbon credits system, whereby fixed amounts of carbon dioxide may be produced by each state, was jeopardised by the option that states may buy and sell these units to one another. Such a policy, a show of hard law in retreat, inevitably allows for leeway that grants richer nations a loophole to continue producing CO2 emissions at business-as-usual rates. States initiate such policies due to the lack of reinforcement measures – a result of non-binding statements with their ignition being greater state autonomy.

 

A Fool’s Freedom

Proponents of soft law frequently posit that it allows for domestic economies to thrive without being subjected to fixed Procrustean measures. While the example of the Montreal Protocol’s use of compromise in achieving greater and more nuanced solutions can dispel the crux of the argument by showing a better alternative, another point must not be avoided. A rather sensitive aspect of international environmental law and its use of soft law to achieve differentiation is the burgeoning of developing economies. This fact and the need for competition in the global market has led to greater appreciation for these countries’ situations, with the most evident example contained in Principle 6 of the Rio Declaration: ‘The special situation and needs of developing countries… shall be given special priority.’ This statement places certain domestic interests, especially the need for express industrialisation at the head of state obligations, even beyond attempts at dealing with environmental issues.

 

While this principle may appear to take account of states’ circumstances, it forgets the fact that these states are the most prone to suffer from environmental calamities. According to the World Bank, climate change, one of the most notorious environmental challenges to date, ‘affects the poorest people in developing countries the most.’ Such a development connotes that short-term setbacks to an emerging economy, contrary to the pattern of development adopted in the West during the Industrial Revolution, would lead to decreased environmental pollution in the long run and the creation of eventually sustainable national frameworks. By contrast, rapid industrial development would have threefold negative effects: farmers from predominantly agricultural states will suffer crop deficiencies, climate change will lead to permanent population disposition due to increased desertification and sea-level rise, and countries will be in economically weaker states in the future due to their inability to handle plummeting production rates of their main primary sector exports. To illustrate, up to 40% of arable land may be lost to the sea level rise in Southern Bangladesh, affecting farmers’ pockets, national exports and the population at large. These currently predictable changes in the model of climate change are pessimistic and a laissez-faire approach demonstrates that the lack of interstate cooperation could lead to invariable disasters, such as the man-made Aral Sea crisis, where the inland sea decreased in a short period of time to ‘just 25% of what it was during the Soviet Era.’

 

Filling the Void

 Soft law’s purpose to date has been to manage where hard law has failed: in bringing together the international community to achieve political agreements over environmental issues. With the impending rise of new environmental challenges, alternatives must now be sought to correct the mistakes left behind by soft law. Amongst the pool of possibilities, an ambitious contender includes the establishment of legally binding framework legislation with localised solutions.

 

By implementing this form of legislation at the international level, states are allowed to foster solutions that best fit their own local setting. Subsidiarity, namely solving issues at the lowest level possible, serves as a guarantee that neither the global concern directly interferes with individual states’ interests, nor do local commitments come before these frameworks’ set objectives. Its effective framework legislation has already shown its prospects in the Montreal Protocol. On the heels of the recently adopted soft law Vienna Convention for the Protection of the Ozone Layer, the Montreal Protocol served to lay the foundations of a mechanism for state-level regulation. Through state-funded projects, the framework legislation has led to the significant phasing out of HCFC’s globally. Moreover, the vision that greater scientific understanding would lead the way in defying ozone depletion was ‘built into’ the fabric of the Montreal Protocol. This very elaborate combination of scientific knowledge, state-centricity and specific international obligations has made this complex instrument into a demonstrably viable and applicable option that other fields may adapt.

 

Conclusion

The place of soft law in international environmental law is both tentative and controversial. While more states become involved in collective efforts, this is done at the cost of slower and less feasible solutions to impending environmental issues. By relying on soft law, the baton is unconditionally passed to national governments that must decide for themselves whether and how to follow up on these informal obligations. Such measures undoubtedly have their many pitfalls that underpin the business-as-usual model without solving issues in the long run with clear-cut schemes and foresight. Consequently, domestic changes due to soft law are minuscule, efforts with respect to different environmental issues become varied and, as such, lack holistic prudence.  Moreover, the placement of economic development over a healthy environmental equilibrium naturally results in the socially weakest having to bear the brunt. Hence, new approaches are required in order to strengthen global cooperation in handling the hydra of environmental disaster. In this article, is argued that a brave contender in this arena is the establishment of binding grassroots-level legislation, similar to the Montreal Protocol, to augment greater independent monitoring, cooperation and secure policy between nations. Thus, when standing before hardship, it is not disregard, but defiant resolve that must pull us through.