Laws and Regulations, International
Laws and Regulations, International
The problems of pollution are not limited to the borders of any one country. Because the harmful effects of pollution often extend to areas beyond the country where the pollution originated, the international legal system is an important means of controlling pollution. (The text here refers to "countries," but the reader should be aware that countries are usually termed "states" in the parlance of international law.) International efforts to control pollution are numerous and complex. The following section identifies some of the main features of the system.
International Legal System
The two primary sources of international law are custom and treaties, and both play a role in regulating international pollution. Customary international law emerges when countries engage in certain practices in the belief that those practices are required by international law. To become customary law, a practice must be generally followed, rather than just being the practice of a few countries. In contrast, treaties, which are often referred to as conventions or protocols, are legally binding agreements between countries or intergovernmental organizations. Treaties typically do not enter into force until a specified number of countries have expressed their consent to be bound by the treaty; even after the treaties enter into force, only the countries that expressed their consent are bound. A treaty is only effective to the extent it is implemented domestically by the parties to it. Each treaty raises its own questions of domestic implementation.
Customary International Law
Many environmental activists and other observers believe that countries have an obligation through customary international law to not cause transboundary environmental harm. Principle 21 of the Stockholm Declaration (1972) and Principle 2 of the Rio Declaration that emerged out of the 1992 Earth Summit both clearly state this principle. The Rio Declaration affirms that countries have "the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction." Under this principle, countries are prohibited from undertaking or allowing actions that will cause pollution in other nations.
Another important concept, known as the precautionary principle or precautionary approach, addresses circumstances where significant health, safety, or environmental risks may be involved although full scientific certainty is lacking. Many countries, especially those in Europe, consider the precautionary principle to be a part of customary international law, but this legal status is debated by other countries, such as the United States. Considerable controversy also exists over exactly what the precautionary principle means. Principle 15 of the 1992 Rio Declaration reads, "Where there are threats of serious or irreversible damage, lack of scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." Another formulation is that a country is not prohibited from taking measures to protect health or the environment because of the existence of scientific uncertainty. A more aggressive formulation is that countries should err on the side of caution when dealing with environmental problems rather than wait until a risk is certain to occur before acting, by which time it will often be too late to reverse the damage. For example, under this more aggressive interpretation of the precautionary principle, if there is evidence that a pollutant might be dangerous, even if the risk is not certain, a country should take action to prevent the risk involved despite the scientific uncertainty. Under any formulation, questions remain about what level of risk warrants precautionary action and what level of precaution may or should be taken.
Treaties and Regulations
There are hundreds of treaties and other international instruments relating to pollution. Some prominent examples include the following: The 2001 Stockholm Convention on Persistent Organic Pollutants (POPs) calls for an immediate ban on certain chemicals, severely restricts the use of others, and provides for POPs to be disposed of and managed using environmentally sound methods. To address the problem of climate change, which is caused by an increased concentration of carbon in the atmosphere, countries negotiated the United Nations Framework Convention on Climate Change, which entered into force in 1994, and finalized the Kyoto Protocol related to that convention in 1997 (not yet in force). A treaty that addresses other forms of air pollution is the Convention on Long-Range Transboundary Air Pollution formulated by the UN Economic Commission for Europe in 1979 and its protocols. The 1981 UN Convention on the Law of the Sea, several regional agreements on specific seas, and various other treaties address maritime pollution. The 1998 Convention for the Application of Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (not yet in force) would ensure that countries have the opportunity to make informed decisions on whether to allow hazardous chemicals to enter their borders. There have also been important treaties regulating oil and nuclear pollution, such as the International Convention on Oil Pollution Preparedness, Response and Cooperation in 1990, and the International Atomic Energy Agency Convention on Nuclear Safety in 1994.
Since food is often imported and exported among countries, international regulations can be significant in reducing the amount of pollution contained in food that travels beyond national borders. The Codex Alimentarius Commission, created in 1963 by the United Nations, has as its highest priorities the protection of consumer health and guarantee of fair practices in trade. With those objectives in mind, it develops standards for, among other criteria, food labeling, food additives, contaminants, methods of analysis and sampling, food hygiene, nutrition and foods for special dietary uses, food import and export inspection and certification systems, residues of veterinary drugs in foods, pesticide-residue levels in food, and guidelines to protect consumer health. These standards are not automatically binding, either domestically or internationally. However, because most countries must at some point conform to international trade law—which requires that certain health-related standards be science-based and recognizes following codex standards as one way of meeting that requirement—some pressure exists for them to adopt codex-sponsored standards in their own regulations.
An important question is how international law regarding pollution can be enforced. There is no international police agency with the authority to enforce international law or any international court system with broad compulsory jurisdiction to make binding decisions on countries without their consent. Despite the lack of a central force, however, countries generally comply with their international legal obligations. Among other reasons, this is because countries will usually only assume obligations in the first place if they believe it is in their best interest to do so. In the event of noncompliance, economic sanctions may sometimes be imposed under the terms of certain agreements, and nonviolating countries may sometimes take other measures against countries that violate international law. The risk of negative publicity may also persuade countries to comply with their obligations.
Studies have shown that noncompliance, especially among developing countries, more often results from a lack of capacity than willful defiance. Compliance with international agreements regarding pollution usually requires a significant amount of scientific expertise that not all countries possess. In addition, some governments may not have the administrative capability necessary for monitoring actions, such as the emissions of pollutants, which take place within their countries, or a legal system capable of enforcing laws. Finally, countries, especially developing countries, also may be unable or unwilling to comply with their international legal obligations to restrict pollution because efforts to alleviate poverty in the immediate term take priority over environmental protection.
The United States, generally speaking, takes compliance with pollution-related treaties very seriously. For example, the United States has not become a party to the PIC and POPs Conventions, mentioned above, as well as the Basel Convention on the Transboundary Movement of Hazardous Waste (1989) because it does not have the domestic legal authority to implement those agreements fully. On the other hand, many environmentalists would argue that the United States has not fulfilled its obligations under the framework convention on climate change.
Voluntary Corporate Codes of Conduct
Transnational corporations exercise enormous economic power and engage in practices that result in the release of large amounts of pollution. However, the conduct of transnational corporations frequently is not effectively regulated by any environmental regime; since domestic law (especially in developing countries) often is not adequately enforced, it typically does not address the environmental activities of overseas corporations, and international law is not adequate to fill in the gaps. Given the lack of effective laws concerning pollution that govern transnational corporations, a recent trend has been the emergence of voluntary corporate codes of conduct. Although corporations have no legal obligation to follow these codes, the demands of the market may persuade international companies to adopt voluntary environmental codes in order to remain competitive. Compliance with these voluntary codes can result in reduced pollution.
The International Organization for Standardization (ISO), a nongovernmental body that develops worldwide standards to facilitate the international exchange of goods, has created a series, ISO 14000, of voluntary environmental management standards for corporations. ISO 14000 does not include specific environmental regulations for corporate compliance. Instead, the series contains general procedures for developing management systems that address the environmental impacts of corporate activities, including pollution, and thus can be adapted to different types of organizations. In order to become certified under ISO 14000, the top-level management of an organization must establish an environmental policy that takes into account all activities of the company which have environmental implications, and commits the organization, among other things, to the prevention of pollution. The environmental management system must have a planning process that creates specific environmental goals, methods of implementation and operation, and a system of monitoring and measuring environmental performance. Because ISO 14000 certification—like compliance with other voluntary codes of conduct—is sometimes contractually required by a company's customers to do business, ISO 14000 can encourage organizations to develop policies that reduce pollution.
Several other corporate codes of conduct relating to pollution prevention have been established. One example is the Ceres Principles, a moral code of environmental conduct that corporations can choose to adopt. It facilitates investment by shareholders in companies that have taken steps to improve their environmental performance. By 2000 approximately fifty-four major U.S. corporations, including General Motors, Ford Motor Company, Ben & Jerry's Ice Cream, and Domino's Pizza, had endorsed the Ceres Principles. The International Chamber of Commerce (ICC), a nongovernmental organization, has developed a set of environmental standards known as the Business Charter for Sustainable Development. The ICC also documents examples of successful environmental management practices for other companies to model. In addition, the United Nations has established the Global Compact, a set of voluntary corporate codes that incorporates principles from international environmental and human rights treaties. A final example is the Organization for Economic Cooperation and Development (OECD) Guidelines for multinational corporations, which include a chapter on the environment.
see also Enforcement; Environmental Crime; Government; ISO 14001; Laws and Regulations, United States; Legislative Process; Precautionary Principle; Public Policy Decision making; Right to Know; Toxic Substances Control Act (TSCA).
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Daniel Barstow Magraw & Janice Gorin