Environmental regulations
Recycling bins in the visitor centre of the Paracas nature reserve in the province of Pisco in Peru, February 2016
Credit: Lucile Maertens
Summary
In the early 1970s, the environment was revealed to be an international problem—multilevel, multisectoral, multi-actor and transborder. Not only does the cross-boundary nature of environmental issues complicate their management, but the absence of clear leadership in terms of international governance also weakens a fragmented system which has potentially competing regulatory tools at its disposal.
Ratification of international treaties is one of various methods adopted to regulate environmental issues since the environment emerged as a problem of transnational importance. In December 2015, the first global agreement (the Paris Agreement) was the principal outcome of the international climate change conference, COP21.
A political and international issue
The Great Smog of London in 1952 – the worst atmospheric pollution in the history of the British capital – followed by a proliferation of environmental accidents in the 1960s, drew attention to the relationship between environmental crisis and human health. As early as 1962, Rachel Carson was already exposing the effects of pesticides in her book Silent Spring. While industrialized countries were increasingly concerned with pollution issues, in the South – in the throes of decolonization – new states were seeking to assert their sovereignty over their own natural resources. In this context, the ecology movement became increasingly radical, buttressed by the first satellite images of the Earth, which demonstrated its interdependencies (in the late 1960s). In the early 1970s the environment was established as a transnational issue, at once multilevel, multisectoral, multi-actor and transborder.
Climate change cases in court, March 2017
Comment: There has been a huge increase in action taken by civil society climate protestors and NGOs, who appeal to the law and the courts for the purpose of making state and private actors responsible for continuing with activities that damage the climate. The map shows that these are mainly taking place in the societies of developed countries (more than 90%) and the United States but also, to a lesser extent, in Colombia, South Africa, Nigeria, Pakistan, India, and the Philippines. For example, in December 2018, a collective of four NGOs claiming allegiance to the movement for climate justice, protection of the environment, and international solidarity, launched proceedings to prosecute the French state for its lack of climate action (the petition “L’Affaire du Siècle” [the Case of the Century] was supported by over two million signatories).
The United Nations Conference on the Human Environment, held in Stockholm in 1972, marked the starting point of the international institutionalization of environment management. This first Earth Summit led to the creation of the United Nations Environment Program (UN Environment), at which point the idea of protecting the environment began to spread more widely. In 1992, in a post-Chernobyl, post-Cold War context, the United Nations Conference on Environment and Development in Rio marked the institutionalization of the sustainable development concept, defined in the Brundtland Report (1987) and enshrining the belief that the market economy, technological progress and environmental protection could be compatible (ecological modernization). It led to the adoption of Agenda 21 and three major Conventions (on climate change, biodiversity and desertification). In 2012, UN Environment Assembly was created in the wake of the Rio+20 summit, but this did not fully resolve environmental governanceissues.
Fragmented governance
The multilevel nature of environmental questions makes managing them all the more complicated: a conflict between an indigenous population and a multinational corporation on the use of a given territory’s natural resources operates at local level, while the resources in question are often traded internationally and the economic actors involved do not necessarily originate in the territory concerned. State policies regulating greenhouse gas emissions affect companies located within that state’s territory – but also have an impact on the global fight against climate change which, in turn, has highly localized impacts, particularly in countries of the South. Similarly, regional regulations have an impact at national level – as in the case of the European Union. This tangled web of connections implicates a growing number of actors whose political and economic interests potentially diverge: citizens, experts, national and international NGOs, private companies, local and regional authorities, governments, regional organizations and international organizations. These actors are involved both in structuring environmental problems and in developing regulatory tools. Yet the current transnational governance system, both complex and difficult to reform, is marked by institutional fragmentation. International regimes structure negotiations that are compartmentalized by theme (climate change, biodiversity, hazardous waste, etc.) and the regulatory tools they develop can potentially compete with one another.
Civil society participation in international environmental negotiations, 1994-2017
Comment: NGOs and other non-state actors (such as academic and private-sector institutions) can register for international environmental negotiations as observers. This enables them to monitor the process, inform the public, and initiate proceedings against government delegations. The diagram shows that, of the three themes (forests, biodiversity, and climate), NGOs are mainly engaged in climate negotiations, where they have an ever greater presence (they were five times more numerous by the end of the 1994-2017 period than they were at the beginning), with the number of representatives per NGO ranging between five and ten, but this has been decreasing over the last decade.
Diverse modes of regulation
Two kinds of discursive and conceptual opposition shape the modes of regulation adopted: those relating to priority (protecting species vs protecting vulnerable populations, economic development vs environment, reparation vs prevention, etc.) and those relating to standards and representation (e.g. is the problem a scientific/legal/economic one – or is it about justice, ethics?). Environmental regulations are structured around four modes of implementation: regulation (contractual obligation), incentives (incentivizing measures), persuasion (information mechanisms), benefits (compensation). They can therefore be embodied in various forms: scientific initiatives (groups of experts, specialist IOs, etc.), political choices (privatization or nationalization, decentralized governance, public-private partnerships, etc.), market instruments (pollution permits, payment for ecosystem services, carbon tax, etc.) and often highly technical legal tools.
Timeline of the main international legal instruments on the environment, 1960-2018
Comment: Only four international legal documents preceded the 1972 United Nations Conference on the Human Environment (Stockholm), which was when international management of the environment was institutionalized. Since that time, as the diagram indicates, 26 new texts have seen the light of day. The states that are signatories enter a commitment, and civil societies bring cases before the courts in order to incite governments to action. The United States’ withdrawal from the Paris Climate Agreement (COP21, December 2015) revealed the dual function of these legal documents: on the one hand they make global governance on the environment visible to the wider public but, at the same time, they have limits, and other key actors can play a role (there were thousands of signatories to the initiative “We Are Still In,” which aims to pursue climate action in the United States despite the federal government’s withdrawal, and over two million signatories to the petition “L’Affaire du Siècle,” in late 2018, aiming to prosecute the French state for its lack of climate action).
The environment issue is characterized not just by the juxtaposition of different jurisdictions – international law, custom, doctrine; regional agreements, bilateral agreements; federal, national and local jurisdictions; public policy in general – but also by an absence of clear international leadership. In fact, UN Environment was deliberately created as a normative agency with limited powers and the organization of secretariats associated with various multilateral environmental agreements diluted its ability to facilitate a coherent system of governance. Some issues tend to be over-treated due to the existence of multiple environmental regimes and negotiation forums, while the lack of leadership leaves other questions entirely unresolved.
- decolonization > Decolonization
- The empires that resulted from the two great waves of colonization were called into question by colonized countries during the inter-war period. They subsequently collapsed after World War II. The United Kingdom relied on the Commonwealth to make a relatively smooth exit from colonialism, whereas France lost two wars, one in Indochina, the other in Algeria. In 1955, the Bandung conference brought together representatives from twenty-nine countries to mark their support for independence struggles. Spain and Portugal were the last European states to cling to their empires, which nevertheless collapsed in 1975. Although the colonial empires have all disappeared, they have left their mark on territories that are claiming their independence. The last half-century has witnessed the ongoing Israeli colonization of Palestine.
- interdependencies > Interdependency
- Mode of relationship based on dense, continuous interaction between social and political entities, leading to reduced autonomy for each of them individually as they are partially reconfigured in relation to each other. Used of states primarily in the context of globalization, implying a reduction or modulation of sovereignty as well as a relativization of power: after all, interdependence goes both ways, implying a reliance of the strong on the weak just as much as of the weak on the strong.
- institutionalization > Institutionalization
- Institutionalization refers to the process by which society’s workings are organized on a long-term basis. It includes the creation and implementation of systems of rules, standards, routines, roles and beliefs shared by a social group. This process concretizes generally held values in the form of enduring institutions, generally formal and codified (law, courts, parliament, currency, church, marriage, etc.). The term is also used of the creation of organizations charged with implementing a political decision. Conversely the permanence of institutionalized practices can be challenged by a process of institutional dismantling in which the codified system is transformed, replaced or abandoned.
- sustainable development > Sustainable development
- Sustainable development is a form of development which fulfils present needs without compromising the ability of future generations to satisfy their own needs. The concept is defined in the UN Brundtland Report, Our Common Future, which recognizes the compatibility between a market economy and environmental protection; as such, it has been criticized in some quarters. Based on three foundations (economic, social, and environmental), sustainable development seeks simultaneously to attain economic growth, greater social equity in order to limit global inequality, and respect for the ecological balance.
- market economy > Capitalism
- An economic system based on private ownership of the means of production and the free market (free enterprise, free trade, free competition, etc.; the foundations of liberalism). In this system, the capital holders (as distinct from employees who form the workforce and who, according to Marx, are exploited) seek to maximize their profits (accumulating capital). After the end of feudalism, the system took hold during the Industrial Revolution. Now adopted by all countries (with the exception of communist ones), it takes multiple forms, and still includes state intervention (to a greater or lesser extent), for the purpose of regulation (notably in the Rhineland model or the social market economy in Scandinavian countries) or as actor and planner (Japan, Singapore, France, etc.).
- climate change > Climate changes
- The UN defines climate change as “a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods” (United Nations Framework Convention on Climate Change [UNFCCC], 1992). The expression is used to describe global warming of the Earth’s surface, whose extent and rapidity are without precedent in the planet’s history, and results from the increase in anthropic greenhouse gas emissions (principally carbon dioxide and CO2, but also methane, nitrous oxide, perfluorocarbons, hydrofluorocarbons, and sulfur hexafluoride).
- biodiversity > Biodiversity
- This notion originated during the preparatory work for the 1992 Rio Earth Summit. It describes the diversity of the living world in the strictest sense, emphasizing the unity of all life, and the interdependency connecting the three elements of biological diversity: genes, species, and ecosystems. The concept takes the living world out of the restricted field of natural sciences and places it at the center of international debate. Today, biodiversity is a global heritage to be protected and a source of potential revenue that is hotly disputed between states, multinational companies, and local communities.
- governance > Governance
- Inspired by management and entrepreneurship, the expression global governance refers to the formal and informal institutions, mechanisms and processes through which international relations between states, citizens, markets and international and non-governmental organizations are established and structured. The global governance system aims to articulate collective interests, to establish rights and duties, to arbitrate disputes and to determine the appropriate regulatory mechanisms for the issues and actors in question. Governance takes various forms: global multilateral governance, club-based governance (restricted to members, e.g. G7/8/20), polycentric governance (juxtaposition of regulatory and management mechanisms operating at various levels), and so on.
- conflict > War
- Violent confrontation between armed groups over values, status, power or scarce resources, in which the aim of each party is to neutralize, weaken or eliminate their adversaries. This organized, collective, armed violence can be undertaken by states (via their national armies) or by non-state groups; it can bring several states into opposition (interstate war) or occur within a single state (civil war). The former, progressively codified within a legal framework, have become rare, while the latter, today primarily caused by state institutional failure, are tending to become more international in scope, to last over time (sometimes decades) and to be extremely devastating, especially for civilian populations.
- indigenous > Indigenous
- Although there is no universally accepted definition to describe indigenous or first peoples, the UN has declared that “indigenous peoples are inheritors and practitioners of unique cultures and ways of relating to people and the environment. They have retained social, cultural, economic and political characteristics that are distinct from those of the dominant societies in which they live.” The United Nations Declaration on the Rights of Indigenous Peoples was adopted in 2007. According to the UN, indigenous peoples represent 370 million individuals, forming over 5,000 different groups, present in around 90 countries on five continents and speaking more than 4,000 languages, most of which are becoming extinct.
- multinational corporation > Multinational corporation
- Company that has undertaken foreign direct investment (FDI) giving it access to facilities that it owns fully or in part (subsidiaries). The first MNCs date from the late 19th century; corporations of this kind have become widespread in the early 21st century. The majority of FDI takes place between industrialized nations. Such companies are now transnational rather than multinational, the largest among them tending to evolve into global corporate networks.
- citizens > Citizen
- The origin of citizenship goes back to Antiquity, and it denotes the enjoyment of civic and political rights within democratic regimes (right to vote, right of eligibility, exercise of public freedoms). By granting rights and obligations to citizens, popular sovereignty provides the foundation for the state’s legitimacy. Citizenship is an element of social cohesion, with citizens forming a political community (theory of the social contract) to which they owe primary allegiance. Depending on the period and country, it has been refused to some sections of the population: women, slaves, the poor, the illiterate, soldiers, foreigners, or minors. The Maastricht Treaty (1992) created a European citizenship within the European Union.
- International regimes > International Regime
- This notion used in international relations has been employed by different theoretical currents (realist, liberal, constructivist) since the late 1970s to designate “systems of functional cooperation” that operate internationally. According to Stephen Krasner, international regimes are “sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations” (International Regimes, 1983, p. 2). Whether or not they are institutionalized (intergovernmental organizations), they usually involve state and non-state actors (NGOs, companies, experts, etc.) in specific areas of international cooperation (trade, health, environment, human rights, etc.).
- regulations > Regulation
- The term regulation refers to all the processes and mechanisms that enable a system to function in a normal, regular fashion. At the international level, it refers to the set of processes, mechanisms and institutions that act to correct imbalances that might threaten the global order and to ensure that actors behave predictably, thereby ensuring stability. It is closely linked to the notions of governance and global public goods.
- public-private partnerships > Public-Private Partnership
- A method of financing and managing public infrastructure (hospitals, water supply, highways, etc.) through which a public body delegates the funding, building and/or commercialization and maintenance of the facility to a private operator, while retaining public ownership. In exchange, the private operator receives payment from the state (in the form of rent) or charges users for the service. While this system absolves governments from having to provide the necessary funding themselves, it is criticized for leading to the privatization of profits and, often, a significant rise in the ultimate cost to the taxpayer (total value of rents paid by the state far exceeds the sum invested, increased charges paid by users, etc.).
- pollution permits > Pollution Permits
- Pollution permits are based on the principle that the polluter pays. They place the financial burden of environmental externalities (pollution, damage, exhaustion of resources, etc.) on those who cause them rather than on the society as a whole. Frequently used at the national level, environmental taxes exact payment for the use of resources or according to an actor’s ecological footprint, for example in terms of greenhouse gas emissions. The market in pollution rights often makes use of economic instruments enabling the sale and purchase of carbon credits, adopted under the Kyoto Protocol.
- payment for ecosystem services > Payment for Ecosystem Services
- A voluntary mechanism by which a purchaser pays for an ecosystem service in exchange for access to it. In the context of environmental services, the term refers to incentives aimed at private or public actors, who receive payment in exchange for implementing environmental protection measures. Developed by ecologists during the 1990s, the concepts of ecosystem services and natural capital were initially understood as metaphors in the promotion of conservation policies. They have since been transformed into innovative financial mechanisms that assign nature a monetary value with the aim of ensuring its conservation, but also risk leading to privatization and commercialization.
- federal > Federalism
- At national level, federalism is a mode of government that grants a high level of autonomy to the political communities federated within it. The allocation of responsibilities between federal and regional levels of government, in principle strictly defined, often remains flexible in practice (e.g. the paradiplomacy conducted by the province of Quebec, the German Länder, the Swiss cantons and the states of Brazil). Internationally the federal model is defended within the European Union by advocates of greater political integration, opposed by defenders of the sovereignist model which is more intergovernmental, inter-state in its approach.
- national > Nation
- Political community based on an awareness of shared characteristics and/or a will to live together. It is common practice to contrast political and cultural concepts of the nation – which in practice are mutually influential and tend to converge. In the political concept, the nation is invented and produced by a state: the territory precedes the nation and defines its contours (this is known as the French concept, based on the republican melting pot and jus soli, right of the soil). In the cultural understanding of nation, a shared common culture produces the nation. The national project consists in bringing this population together on a single territory (the cultural or romantic or German concept of the nation, based on jus sanguinis, right of blood). The latter concept intrinsically produces conflicts and can lead to ethnic cleansing or genocide (Nazi Germany, Greater Serbia, etc.).
- negotiation > Negotiation
- Practice which aims to secure agreement between public or private actors, satisfying the participants’ material and symbolic interests by means of mutual concessions. International negotiations are one of the methods of peacefully resolving disputes and can be bilateral (between two actors) or multilateral (three or more actors). They often result in an official document (joint declaration, peace agreement, trade treaty, international convention). Collective negotiation (or collective bargaining) refers to negotiations within a company between the employer and workforce representatives (generally belonging to trade unions) regarding the application of labor law.