Enforcing environmental security: the challenges of compliance with international obligations.

• Author: Sands, Philippe
• Position: Keeping the Peace: Conflict Resolution in the Twenty-First Century

Humanity stands at a defining moment in history. We are confronted with a perpetuation of disparities between and within nations, a worsening, of poverty, hunger, ill health and illiteracy, and the continuing deterioration of the ecosystems on which we depend for our well-being.(2)

The emerging importance of environmental concerns to international security(3) was emphasized in a January 1992 statement by the 15 members of the United Nations Security Council, declaring that "non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security."(4) Six months later, the majority of the world's nations gathered in Rio de Janeiro for the U.N. Conference on the Environment and Development (UNCED), which had, as one of its major objectives,

to assess the capacity of the U.N. system to assist in the prevention and settlement of disputes in the environmental sphere and to recommend measures in this field, while respecting existing bilateral and international agreements that provide for the settlement of such disputes.(5)

Implicit in the international legal instruments adopted at UNCED is the recognition that the members of the international community must act together to address global environmental challenges and to prevent the occurrence and escalation of international environmental conflicts.(6)

In this broader security context, states' compliance with their international environmental obligations has become a more critical issue in international affairs than ever before. This is evident from the attention the subject received during UNCED as well as the negotiation of recent landmark environmental treaties, including the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (1987 Montreal Protocol) and the 1992 Conventions on Climate Change and Biological Diversity.

Three factors underlie this increased concern with compliance. First, the growing demands and needs of states for access to and use of natural resources coupled with a finite, and perhaps even shrinking, resource base lay the groundwork for increasing interstate tension and conflict. Second, as international environmental obligations increasingly affect national economic interests, states that do not comply with their environmental obligations are perceived to gain unfair competitive economic advantage over other states. Finally, the nature and extent of international environmental obligations have been transformed in recent years as states assume greater environmental treaty commitments.

Despite the recent emergence of the concept of environmental security, the challenges it poses are not new to the international legal order. Indeed, the legal issues facing the international community today in relation to the environment are remarkably similar to those addressed one hundred years ago.(7) Over the past century, the international legal system has developed institutions, mechanisms and techniques for preventing and resolving international environmental disputes that have emerged as certain natural resources diminish. The controversial issues include transboundary air pollution, the diversion of international rivers, conservation of fisheries resources, national import restrictions adopted to enforce environmental objectives and responsibility for rehabilitation of mined lands.(8) The existing institutions that deal with environmental security are the United Nations, regional and other organizations established by UNCED and earlier environmental agreements. Furthermore, in the last two decades since the 1972 Stockholm Conference on the Human Environment, which was the precursor of today's environmental movement, the international community has created a large body of international environmental law to establish standards and procedures on handling disputes. The current dispute between Hungary, the Czech Republic and Slovakia over the diversion of the Danube illustrates the range of enforcement and dispute settlement options available, as Hungary seeks to prevent further dam construction by taking the case to the International Court of justice (ICJ), as well as to arbitration and the emergency procedures of the Conference on Security and Cooperation in Europe (CSCE).(9)

Although the legal mechanisms for ensuring compliance and resolving environmental disputes have developed significantly, these mechanisms are still used infrequently and have yet to be tested by a major conflict. In the absence of clear rules establishing acceptable global and regional standards of environmental behavior with regard to such areas as atmospheric emissions, waste disposal and production of hazardous substances, interstate disputes will occur with increasing frequency. Similarly, the failure to comply with minimum standards of good neighborliness - carrying out transboundary environmental impact assessments, exchanging information or consulting on projects likely to have transnational effects - will cause significant tension. It is unclear whether the international legal system has the resources to meet these and other imminent challenges to environmental security. UNCED provided an opportunity to develop stronger enforcement mechanisms, but it now appears that this opportunity was not fully utilized. Achieving international environmental security thus demands setting firmer standards and procedures to enforce compliance with these obligations. Non-compliance by states and international institutions limits the overall effectiveness of environmental treaties, undermines the international legal process and contributes to conflict and instability in the international system.(10) Non-compliance raises three separate but interrelated legal questions regarding implementation, enforcement and conflict resolution:

1. What formal or informal steps must a state or international institution take to implement its international legal obligations? 2. Who may seek to enforce the international environmental obligations of a state or international organization? 3. What techniques and bodies exist under international law to settle disputes over alleged non-compliance with international environmental obligations?

This article briefly considers these three questions, and then identifies some of the more critical issues that are likely to face the international legal system in the near future. Case examples highlight possible techniques to resolve those disputes. The article concludes with a brief assessment of UNCED and the capacity of the international legal system to respond effectively to growing threats to environmental security. The discussion notes that although considerable precedent exists with regard to environmental law, the international legal system does not yet have the institutional capacity to deal with new environmental challenges that transcend national boundaries and require a supranational response. Recent developments, however, suggest that the international community recognizes this problem and is preparing to address it.

Resolving Environmental Conflicts

International environmental conflicts arise when states conduct or permit activities that other states consider to have adverse or illegal environmental consequences. At the root of international environmental conflict lies the actual or perceived failure of a state to fulfill its international environmental obligations under customary law, as codified for example in Principle 21 of the 1972 Stockholm Declaration(11) or international treaty obligations.(12) State compliance requires action in three ways: It must adopt national enabling legislation, policies and programs; it must ensure compliance within its jurisdiction and control; and it must fulfill any obligations to the appropriate international institutions, such as reporting the national measures taken to give effect to the obligations.

National Enforcement

A state formally accepts an international environmental obligation through ratification of a treaty or acceptance of the act of an international institution. Subsequently, the state will need to develop, adopt or modify relevant national legislation, policies and programs through administrative, legislative or other means. Some treaties require states to take appropriate measures to ensure the implementation of obligations,(13) or to "take appropriate measures within its competence to ensure compliance with [the] Convention and any measures in effect pursuant to it."(14) Most also require states to designate a competent national authority or focal point for liaison purposes.(15)

Once an environmental commitment has been mandated by national legislation, the state then has the obligation to ensure full and effective compliance. A number of treaties attempt to enforce compliance either by those measures existing within the state's jurisdiction or control, or through the application of national sanctions or other punishment.(16) Enforcing national compliance is a matter for the public authorities of each state; some states also allow private enforcement through suits brought by citizens.

Like other international legal obligations, almost all environmental treaties now require that signatory states report certain information to a designated international institution. This information varies with each treaty, but typically includes: statistical information on production, imports and exports; the grant of permits or authorizations to pollute; measures adopted for implementation and enforcement of the treaty's provisions; relevant judicial decisions; scientific information; and breaches or violations that occurred under a state's jurisdiction or control.(17) These reports provide the international community with a means for assessing state implementation of its obligations. It has become quite clear, however, that many states are unwilling to meet even the basic obligation to provide a regular report of their activities...