Published on Nov 19, 2021
Law Optional writing practise solution
Sources of International Environmental law. Role of Soft law. [UPSC 2020]
Sources of International Environmental law. Role of Soft law. [UPSC 2020]

Evaluate the main sources of International Environmental Law. Explain and discuss in particular the emergence of “Soft Law” and principles of International Environmental Law and how this has influenced the development of this area of International Law. [UPSC 2020 Q.8(b)]

International environment law is an international effort of States to act within a framework of sustainable development to combat the environmental crisis. The international environmental law regulates the subjects like ozone layer depletion, conservation of natural resources, preservation of flora and fauna, maintaining the hydrological and ecological cycles. These laws are soft laws that serve to influence and aspire member nations to comply with the standard norms and principles, without compelling their enforcement. This is an outcome of the sovereignty concerns of the nations that make them reluctant in submitting control over their people and their affairs to an external authority.

Sources: There is no fixed international authority or organisation to create laws on the subject of the environment. These laws are a contribution of a variety of sources created by different international bodies from time to time.

Treaties: Treaties, commonly known as conventions, agreements or protocols are the primary sources of international law. An agreement having a binding effect on its member nations. The evolving environmental concerns have prioritised the use of treaty law amongst the nations. As a result, a plethora of multilateral and bilateral agreements have been entered into by the States. Some of the major treaties are as follows:

Vienna Convention, 1985: The UNEP created a global framework on the protection of the ozone layer. It came into effect in 1988 and is now reckoned as the most widely accepted treaty in UN history. The Vienna Convention provides the global framework for managing and controlling anthropogenic activities leading to stratospheric ozone depletion with international cooperation in the scientific assessment and research activities. The Convention outlined the regulation of CFCs in the atmosphere by the process of exchange of information and research outcomes amongst the nations followed by their implementation.

Montreal Protocol, 1987: Under the aegis of the Vienna Convention, Montreal Protocol aiming at the monitoring and reducing of the limits of the toxic substances depleting the ozone layer was adopted. It came into effect on 16 September 1987, now celebrated as International day for Ozone Protection. A country can only be a member of the Protocol if it has ratified the Vienna Convention. The Protocol sets binding obligations on the countries to discontinue the use of hazardous ozone threatening substances namely chlorofluorocarbons (CFCs), hydrofluorocarbons (HFCs), carbon tetrachloride, bromochloromethane, methyl bromide and other halo compounds. 

Article 3 of the protocol estimates the levels of production, import and export, consumption and the emission of these substances by the developed and the developing countries. The Protocol inserts special provision with respect to the developing countries in the disguise of Article 5 by providing them with a delay period of ten years to comply with the set standards and deadlines, a consumption limit of 0.3 kg per capita and access to the assistance Fund. 

Basel Convention, 1989: The Conference of Plenipotentiaries further adopted eight resolutions associated with subsequent future developments in the Convention. The Convention aims at regulating the movement of hazardous waste from one jurisdiction to another. Its scope precludes waste that is radioactive in nature. 

Article 4 of the said Convention binds the parties with certain obligations in relation to export and import, generation, transboundary movement and disposal of hazardous waste. It makes the illegal traffic or transboundary movement of waste without complying with the standard norms provided under Article 9, an offence. The nations are promoted to employ techniques and methods that do not disturb the equilibrium of the environment while handling such waste. The Convention provides for the establishment of an interim fund to serve emergency purposes under Article 14.

United Nations Framework Convention on Climate Change, 1992 (UNFCCC): An international level Negotiating Committee was constituted under the UN General Assembly to provide an intergovernmental framework composed of legal instruments and commitments to prevent the negative effect of human-induced activities on the climate. Article 1 of the Convention defines climate change as the disturbance in the composition of the atmosphere as a result of dangerous human activities. The objective of the framework and other associated legal instruments is to limit the emissions of greenhouse gases by the Parties within a time frame to ensure economic progress within a sustainable framework. This is envisaged under Article 2. The Convention, under Article 3, outlines the principles of international cooperation to adopt cost-efficient socio-economic measures and promote a stable economic system to realise the objective of sustainable development.

Kyoto Protocol, 1997: The nations eventually realised that the commitments set by the UNFCCC under Article 4 were not adequate enough. Hence, an Ad Hoc Committee was constituted to negotiate on the need to impose more adequate commitments on the nations to manage the greenhouse gas emissions. The final draft of the Protocol was adopted in 1997 in the city of Kyoto, Japan. The framework outlined innovative mechanisms for firm enforcement of the existing commitments of the UNFCCC. The Protocol mandates the measures and policies to be adopted by the nations to achieve the minimum target of emission under Article 2 and 3. It majorly includes promoting the use of alternative forms of energy, phasing out of taxes and subsidies on emission centres and controlling emissions from the sources not falling under the aegis of Montreal Protocol like that from marine and aviation fuels. The nations are required to follow these set policies to combat the adverse effect of anthropogenic activities and quantify the emissions. There is an obligation on the nations to correspond to the levels of emissions set by the Protocol. 

Stockholm Declaration, 1972: The United Nations Conference on Environment and Development in its first global conference in Stockholm in 1972 made a declaration (Declaration of the United Nations Conference on the Human Environment), addressing the environmental challenges. It attempted to promote economic growth along with sustainable development of the environment. It also addressed the challenges faced by the developing countries due to lack of food and shelter and the developed countries due to the process of rapid industrialisation.

Rio Declaration, 1992: It consolidated the previously laid principles. The Declaration is composed of a preamble and 27 human-oriented principles. It calls for international cooperation to combat poverty and climate change. Principle 2 focuses on the State’s responsibility to prevent the effect of its activities beyond the territories of the State. However, these principles only have persuasive value and  are not obligatory in nature.

The growing environmental concerns encountered by the developed and developing nations have resulted in the formulation of global instruments regulating international behaviour. The enforceability of these instruments depends upon the intention of the parties consenting to be bound. Several organisations have efforts over the time to strengthen the environmental principles in form of treaties, making it obligatory for the parties to meet the commitments outlined by the instrument so adopted. These efforts in the form of treaties, conventions and protocols attract a sense of legality making parties responsible for their actions.