The EU, the US and Global Climate Governance

Christine Bakker, Francesco Francioni

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9781472426529
• eBook ISBN:
  9781317033394
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

This volume presents a critical analysis of transatlantic relations in the field of environmental governance and climate change. The work focuses on understanding the possible trends in the evolution of global environmental governance and the prospects for breaking the current impasse on climate action. Drawing on research involving experts from eleven different universities and institutes, the authors provide innovative analyses on policy measures taken by the EU and the US, the world's largest economic and commercial blocs, in a number of fields, ranging from general attitudes on environmental leadership with regard to climate change, to energy policies, new technologies for hydrocarbons extraction and carbon capture, as well as the effects of extreme weather events on climate-related political attitudes. The book examines the way in which the current attitudes of the EU and the US with regard to climate change will affect international cooperation and the building of consensus on possible climate policies, and looks to the future for international environmental governance, arguably one of the most pressing concerns of civilisation today. This book, which is based on research carried out in the context of the EU-financed FP7 research project TRANSWORLD, will appeal to academics, policy makers and practitioners seeking a deeper understanding of the challenges resulting from climate change.

PART I
The Evolution of the Global Environmental System and Leadership

Chapter 1
The Evolution of the Global Environmental System: Trends and Prospects in the EU and the US

Francesco Francioni and Christine Bakker

1. Introduction

More than half a century has passed since the modern ecology movement started to take hold and make environmental protection a political cause at the domestic and international levels. This movement owes its first impulse to many people. However, in a research dedicated to transatlantic relations, it is fitting to underscore that at its origin there is the work of scientists and concerned individuals, especially from the United States and Europe. The groundbreaking work of Rachel Carson on the devastating impact of industrial toxic waste on the environment (Carson 1962), the pioneering research of the biologist Barry Commoner documenting the harmful effects of radiological fall-out on children, Aurelio Peccei’s Club of Rome, a precursor of the concept of sustainable development (Meadows et al. 1972), they all contributed to the nascent and powerful movement of modern ecology.

The efforts of these early pioneers did not display their effect only in academia and the closed circle of concerned scientists. They delivered policies that have had long-lasting effects at a normative and institutional level. The Partial Nuclear Test Ban Treaty saw the light in 1963,¹ triggering the process of gradual phasing out of atomic weapon tests in the atmosphere, in outer space and under water. In 1970, the United States established the first Environmental Protection Agency, a model later followed by Europe at both national and EU level.² In April of the same year, the United States inaugurated the first Earth Day. In Europe, despite the absence of specific environmental provisions in the European Economic Community Treaty (EEC 1957), in the 1970s the European Court of Justice (ECJ) began to develop a jurisprudence recognising the importance of environmental protection in the process of interpreting and applying provisions on the functioning of the common market (ECJ 1979 and 1979a; 1985). It was in this context that the first UN Conference dedicated to the environment was convened in Stockholm in 1972 and that the Stockholm Declaration on the Human Environment was adopted (UN 1972), a seminal document from which a vast law-making movement in the field of environmental protection has since evolved.

While the Stockholm Declaration can be seen as the act of birth of modern international law on the environment, there is no denying that even before the Declaration international law had played a role with regard to the protection of nature and natural resources. As early as the beginning of the twentieth century, we can find treaties on the protection of migratory birds (1902 Paris Convention) and on the conservation of seals (1911 Treaty of Washington). Later, the arbitral award in the Trail Smelter dispute between the United States and Canada (Int. Arbitral Award 1938 and 1941), which involved damage caused by trans-boundary air pollution coming from Canada to the United States, set a precedent which is still widely cited in international practice and still relevant to the adjudication of claims for damages in trans-boundary environmental disputes.

This notwithstanding, the Stockholm Declaration remains a watershed in the evolution of the system of global environmental governance for at least two reasons. First, the Declaration introduces the term ‘environment’ into the lexicon of international law, doing away with the previously used expression, ‘nature conservation’. This is not only a terminological change: it reflects a transformative step in a normative perspective. By shifting the focus from nature to the ‘environment’, international law somehow abandons a normative perspective in which nature and its components are themselves the worthy objects of protection and focuses instead on the ‘environment’ as the space for all human life and activities. In this way, the protection of nature ceases to be an end in itself and becomes instead an instrument in the service of human needs. This is confirmed by the official title of the Stockholm Declaration, which adopts the expression ‘human environment’ and opens up with the solemn proclamation, ‘Man is both the creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth’. This ‘instrumental’ vision of nature was bound to persist in the subsequent evolution of the system of environmental governance. Actually, 20 years later, the Rio Declaration on Environment and Development (UN 1992) marked a turn toward an even narrower instrumental conception of the natural environment, in the sense of nature being at the service of economic growth and economic development.

Second, and most importantly, the Stockholm Declaration emancipates environmental law from the original limits of ‘private law’ and elevates it to the rank of public international law. This means that prior to the Stockholm Declaration, nature protection was mainly incidental to the application of rules regulating relations between neighbouring states (as in the abovementioned US–Canada dispute in Trail Smelter), or the use of shared natural resources, such as lakes or trans-boundary waterways, for which the private law principles of nuisance and good neighbourliness were the applicable law. With the Stockholm Declaration, the protection of the environment is recognised as part of the public interest of the international community as a whole, independently of the specific reciprocal relations and interests of individual states. This is confirmed by the specific reference in Principle 21 to the responsibility of states to ensure that activities within their jurisdiction and under their control do not cause damage to ‘the environment … of areas beyond the limits of national jurisdiction’.³ This obviously refers to common spaces such as the high seas, the international seabed area, outer space and Antarctica. In this language we find a strong resonance with the 1970 finding by the International Court of Justice (ICJ) that certain obligations under international law – notably in the field of maintenance of peace, human rights and environmental protection – are not reciprocal but protect the general interest of the international community and therefore may be characterised as erga omnes (ICJ 1970:32).

Today, it is generally recognised that the environment is a ‘concern of humankind as a whole’. Forty years after the adoption of the Stockholm Declaration, this concern persists and has become one of the main issues on the international agenda. Significant results have been achieved at the normative level, with the adoption of a large number of legally binding instruments, including international treaties and various declarations and other soft law instruments. However, important gaps still exist, both at the normative and at the institutional level. In particular, the lack or deficiency of enforcement mechanisms is a major weakness of the current system of environmental law, concerning which the 2005 World Summit Outcome on the reform of the UN Charter has produced no meaningful progress.

There is a long way to go before achieving a global system of environmental governance which can effectively address the challenges of protecting and preserving the environment as a public global good, and of providing redress to victims when internationally agreed norms are violated. As practice has shown, important differences in perspectives persist among states on the policies and measures to adopt, on the type of commitments to make and on how to share responsibilities, especially between industrialised countries on the one hand and developing countries on the other. However, attitudes and policies among the industrialised states also differ significantly. The EU and its member states have shown a consistent commitment to addressing environmental concerns. This is confirmed by the recent Communication from the European Commission (‘A policy framework for climate and energy in the period from 2020 to 2030’ of 22 January 2014). On the other hand, the United States has been far more reluctant to make any binding commitments at the multilateral level.

This chapter aims to provide a general overview of the political, social and legal context of environmental governance, analysing the progress made so far at the normative level and identifying the main trends in this process (2), and to examine the achievements and gaps in terms of enforcement mechanisms (3). Based on this analysis, the chapter suggests possible ways to address some of the deficiencies of the current system of environmental governance through global institutional reform (4).

2. The Political, Social and Legal Context of Environmental Governance: Progress by Stages

Over the last 50 years, international law and policy on environmental protection have evolved in several main phases, each representing a fundamental trend. In the first phase, starting with the 1972 Stockholm Declaration, there was a gradual development of a body of international law on environmental protection, with the adoption of a large number of conventions and soft law instruments. The second phase was characterised by the recognition that environmental problems are not just a question of accommodation within the bilateral relations between states, but involve also obligations towards the international community as a whole, and that common spaces – such as oceans or the outer space – need to be protected as global public goods. Thirdly, one can observe the development of general principles of customary international law by way of judicial and arbitral practice, and by their incorporation in domestic law and in the institutional law of regional groupings. A fourth phase can be distinguished, in which environmental protection is increasingly seen as a cross-cutting dimension of many areas of international law, such as trade, investment and human rights, rather than a distinct branch of international law. From this perspective, a further trend concerns the increasing reliance of public institutions on the private sector as a partner in the fight against environmental degradation, especially climate change. A closely related issue is the question of how science and scientific evidence influence the development and enforcement of environmental regulation.

In this section, we will briefly analyse these trends and the relevant instruments and practice, focusing on the normative developments. In order to illustrate the current state of affairs, a closer look will then be taken at two major areas: climate change and bio-diversity, and the main policy attitudes adopted by the European Union and the United States will also be identified.

A. Environmental Instruments Adopted after ‘Stockholm’

After the momentum created by the Stockholm Declaration, the attention for environmental issues and the commitment to take normative action led to the adoption of numerous legal instruments dealing with specific aspects of environmental protection. During this first phase, which spanned the 1970s and 1980s and the initial years of the next decade, more than a hundred universal and regional Multilateral Environmental Agreements (MEAs) were concluded.⁴ Some of them took an innovative approach, such as the World Heritage Convention (UNESCO 1972), which combines the protection of cultural and natural heritage of outstanding universal importance. Other international instruments adopted in this period are the Washington Convention on Trade in Endangered Species (1973), the MARPOL system on the prevention of marine pollution from ships (1973a) and Part XII of the Law of the Sea Convention (1982) and the Geneva Convention on Long-Range Trans-boundary Air Pollution (1979). However, as argued in previous publications (Francioni 2012a and b), the sector-by-sector approach followed by the vast majority of the early conventions disregarded the interdependence of various elements of the biosphere and the need for an ecosystem approach to the preservation of environmental quality. Moreover, these legal instruments often failed to adequately integrate environmental standards into economic development policies, thereby denying a concern that was explicitly expressed in the Stockholm Declaration. Another weakness was the systematic absence of rules on liability for breach of obligations to respect and protect the environment. In general, the approach taken in most of the instruments adopted in this period on the conservation of environmental resources was still ‘utilitarian rather than ecological’ (Beyerlin and Marauhn 2011: 11).

B. Environmental Resources as Global Public Goods

The environmental conventions and agreements adopted in the second phase, starting just before the 1992 Rio Declaration, reflect the sense of urgency within the international community to respond to scientific evidence of irreversible environmental threats as a result of greenhouse gas (GHG) emissions, deforestation and other damaging human activities. The discovery of the erosion of the ozone layer led, first, to the adoption of the 1985 Vienna Convention and the 1987 Montreal Protocol on the Control of Substances that Deplete the Ozone Layer. Global warming became a priority on the international political agenda with the 1992 Earth Summit held in Rio de Janeiro, the ensuing Rio Declaration (UN 1992), the adoption of the United Nations Framework Convention on Climate Change (UNFCCC) (UN 1992) and the subsequent Kyoto Protocol (UN 1997). In that same period, biodiversity degradation was recognised as a ‘common concern of humankind’, with the adoption of the Convention on Biological Diversity (1992a).

A common feature of these instruments is the recognition – in more or less explicit terms – that environmental resources need to be considered as global public goods, and that their protection is in the interest of all people.⁵ This development reflects a trend that can also be seen in other fields of international law, whereby the role of states as the primary subjects and actors is gradually becoming less exclusive, and the interests of other subjects, including private actors, individuals and groups of people – or indeed of humankind as a whole – are recognised. This trend is also emerging in judicial practice.⁶

The consideration of the environment as a global public good is closely related to the recognition of a relationship between the environment and human rights. This recognition has principally taken two forms: (a) adoption of an explicit new right to an environment characterised in terms such as healthy, safe, satisfactory or sustainable; and (b) heightened attention to the relationship to the environment of already recognised rights, such as rights to life and health. Whereas the right to a healthy, safe or satisfactory environment has progressively been included in constitutions at the national level, to date, no agreement has been reached on the recognition of such a right and on its exact content, at the international level. However, the relationship between the environment and human rights has been addressed in various international fora, and it has been the object of several UN resolutions and declarations (inter alia, UN 1972, 1990, 2012; UN HRC 2008, 2009, 2011a, 2011b).

In this context, in 2012 the Human Rights Council decided to establish a mandate on human rights and the environment (UN HRC 2012) and appointed John Knox as the first Independent Expert on human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. The Independent Expert was requested, inter alia, to study the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, in consultation with relevant stakeholders; to identify best practices relating to the use of human rights o...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Boxes, Figures and Tables
• Table of Cases
• Table of Treaties, Other International Instruments and Legislation
• List of Abbreviations
• Notes on Contributors
• Acknowledgements
• Introduction Christine Bakker and Francesco Francioni
• PART I THE EVOLUTION OF THE GLOBAL ENVIRONMENTAL SYSTEM AND LEADERSHIP
• PART II EU COMPETENCES AND POLICIES ON ENVIRONMENTAL ISSUES AND CLIMATE CHANGE
• PART III US POLICIES ON ENVIRONMENTAL ISSUES AND CLIMATE CHANGE
• PART IV CROSS-CUTTING ISSUES
• Index