Compliance (and enforcement) with international environmental obligations/norms

Question 1

Do states generally comply with international law?

Answer 1

Lou Henkin:
Most people see the media and shit and think not, but in actual fact there is a tonne of international law and most of it is complied with by most states

NB: even powerful countries will observe legal processes in situations where they don’t want to comply
-E.g. US signed Kyoto, but then they went through the legal process of withdrawing rather than just saying ‘nah fuck you’

Question 2

Just a note to remember:

There might be many different reasons why a state might not want to comply with the law. So if we think a state might not comply, then we can put in place a system so they might comply

Point: a good international legal system will take into account all of those reasons for not complying with the law and try to tackle them

Answer 2

Julz likes penis on toast

I am suing for defamation.

Firstly, that comment would convey to the ordinary, fair-minded reader that I am a cannibal who likes to indulge in penis on burnt bread (Charleston).

Secondly, as cannibalism is not an accepted practice in society, such a derogatory statement would tend to lower my standing in the estimation of right thinking members of society (Sim v Stretch).

And lastly, because fuck you thats why!

Question 3

What is a possible difference between international environment law and other areas of law (re compliance)?

Answer 3

Maybe the consequences aren’t immediate- more diffuse and less obvious (cf running a red light and crashing, with immediate results)

Question 4

How can transparency from monitoring and reporting aid compliance and enforcement?

Answer 4

This means that a country needs to provide a periodic report of compliance telling other countries what steps they’ve taken to comply with the treaty/ data/ quotas/ etc.

If other countries know that every other country is complying then there is an incentive to do so as well, otherwise you’d be exposed as a free rider

Also shines a light on other countries who are not complying

Question 5

How can clarification of treaty language aid compliance and enforcement?

Answer 5

Create a treaty with clear obligations

If it is too vague, there could be problems by either:

1. Easy to argue states evasion of compliance
2. Could say every state is complying because states can comply how they want

Point: compliance is about meeting the obligations, but if they’re not clear enough, it might be an ineffective treaty

Question 6

How can legitimacy of the norms aid compliance and enforcement?

Answer 6

NB: Goes back to legitimacy of things like the Security Council

If you have a fair and equitable process, then states are more likely to comply

One way is to require consensus for decisions

Again, this is how you build the regime

Question 7

How can dispute settlement provisions aid compliance and enforcement?

Answer 7

They provide recourse

NB that court/ arbitration etc. in international law is only a small part of overall compliance. But if they’re not there, you could get an ongoing stale mate

Question 8

How can sanctions aid compliance and enforcement?

Answer 8

It’s essentially going to cost the state something, monetary or otherwise
-Comes back to punishment

One example was the Kyoto protocol setting up an emissions target for the first compliance period of 4-6 years. If you didn’t meet that, states had a penalty for the 2nd period imposed on a basis that states will be compelled to comply.
However, this failed miserably, so sanctions might not always work

Question 9

How can liability regimes aid compliance and enforcement?

Answer 9

Think back to the oil-spill/ outer space examples we have looked at

They sound good, although they are hard to get agreement on

Question 10

How can capacity building (including financial and technical assistance) aid compliance and enforcement?

Answer 10

If a poor country can’t comply because they’re too poor, then rich countries will provide aid to help them achieve compliance

This is a huge thing internationally

Question 11

How can non-compliance procedures aid compliance and enforcement?

Answer 11

This essentially describes a particular type of system you can put in a treaty. So it could include anything you want- you just have to get states to sign up to it

Question 12

How can diplomatic pressures aid compliance and enforcement?

Answer 12

Naming and shaming

Reputational pressures and fears of relationship issues with other states

NB: this may be more affective on some states than others

• E.g. NZ likes looking good and we hold ourselves pretty high and mighty, so we would take quite a bit offence if another state accused us of non-compliance
• Cf: India and China- they don’t give AF about accusations of breaches of human rights

Question 13

The International Convention on the Regulation of Whaling contains no formal dispute settlement provisions and no compliance mechanisms. So you might be able to get them to do comply where they are not willing or have not been responsive to negotiations.

How have the US’s attempts to put trade sanctions (keeping Japanese fishermen out of US EEZ) on Japan gone?

Answer 13

Shit.

1. Japan just stopped entering the EEZ
2. Runs the risk of breaching international trade laws
3. Applied relatively inconsistently
   - E.g. Canada were named as not achieving their obligations because eskimos were still whaling
4. Relies heavily on the US
   - Dafaq is NZ gonna do in this situation?

So essentially, the whole sanction is seen as illegitimate

Question 14

What are 2 issues with domestic legal action being able to aid with compliance and enforcement?

Answer 14

Re Australian legislation pertaining to their sovereign claims over their section of Antarctic waters

1. Standing to sue
   - Fortunately the legislation said private citizens could bring claims against companies (Humane Society bought one against Japanese whaling contractor company)
2. Legitimate jurisdiction
   - The injunction that the court issues was tentative at best because Australia’s sovereign claim is not internationally recognised
   - It’s one thing arresting a Jap ship in Aus EEZ, it’s another trying to arrest it in what is effectively the high seas

Question 15

Despite being pretty legally ineffective at an international level, how can domestic legal action aid with compliance and enforcement?

Answer 15

To raise publicity on the issue
-Raising the issue to the Aus public, who would then put pressure on the gov to do something more at an international level

Question 16

How can ‘direct action’ against Japanese whaling ships be affective?

Answer 16

Primarily because of the physical disruption to the hunt the whale hunt
-Ramming Japanese vessels
-Throwing shit
-Shining lasers
Sea Shepherd’s efforts caused caused Japanese efforts to catch far fewer whales than usual

Again, also raises publicity as well

Question 17

What is a key issue with ‘direct action’ against Japanese whaling ships?
And how have the Japanese responded to Sea Shepherd?

Answer 17

A lot of this action potentially deals with international Maritime law and how you’re meant to deal with people at sea
-Basically breaching everything

Also concern about human safety at sea, and environmental disasters (ships hull breaching and spilling oil)

The Japanese consider SS as eco-terrorists (especially because Japan consider themselves to be complying with the Convention)

Question 18

What is the risk of taking a compliance dispute to the ICJ for resolution?

Answer 18

The ICJ could say agree with the other side and endorse their actions
-NB: no appeal process in ICJ

Question 19

How did Japan respond to the ICJ ruling?

Answer 19

Fuck you world.

We stop our whaling programme. But now we make NEW whaling programme that ICJ ruling doesn’t pertain to.
Plus we amend our ICJ agreement to not allow jurisdiction over the matter, so no chance of bring this one to court Australia

Question 20

Where non-compliance procedures HAVE been incorporated into a MEA, are they punitive?

Answer 20

Not at first (starts off fairly light)

Often there is an attempt to recognise that punitive measures are not necessarily the best way to get states to recognise their obligations

Often the compliance issue relates to non-capacity. In this case committees can recommend that further assistance be given etc.- i.e. funnelling capacity building funds from developed countries to undeveloped countries

Eventually, shit will get punitive though

Question 21

What is the main point of non-compliance procedures (besides the obvious)?

Answer 21

Point: designing the treaty for a range of obligations
-I.e. compliance issues aren’t always the same, so a good treaty will try to deal with every situation and get compliance one way or another

Question 22

Is a country reporting on its efforts critical to getting compliance?

Answer 22

No

Reporting is the best way for compliance, but not critical- there are other ways to monitor compliance

Question 23

What is one argument for and against decentralising compliance procedures and giving authority to local communities?

Answer 23

Generally, local people with get behind the implementation if its their own

BUT in some cases local communities might not- they simply might not give a shit about the issue

Question 24

How can NGOs cause MORE problems for the environment?

Answer 24

Businesses
-Capitalist pigs

They might not give a shit how much their factory is dumping into Hutt river

Question 25

How can a free market (economic influences) be counter-productive to promote compliance?

Answer 25

E.g. if you’re phasing out a product, you might get more if it sold in the time leading up to prohibition
or you might get a black market subsequently pop up