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A New Modus Operandi for the International Institutions with Environmental Competence

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Science-Based Lawmaking

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Abstract

A new modus operandi for the international institutions with competence on environmental issues should be devised. It should not only include lawmaking processes that enhance the science-base of the international environmental laws, but also reinforce the overall acts of an international institution, in order to balance the disadvantages and imbalances that a science-based lawmaking model may create. It should also place the science-based lawmaking model under a large-scale system perspective. A comprehensive new modus operandi should be instrumented based on sorting out the most successful organizational and regulatory decision-making models deriving by both the national and international administration in order to achieve the model optimization. The new procedures and institutional structures that the science-based lawmaking requires should incorporate elements of all the types of legitimacy in order that the model be optimal from every aspect and also be sustainable in the long run.

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Notes

  1. 1.

    SYSTEMS THEORY (Michael Decleris ed., edited by G. S. Group. Athens - Komotini: Ant. N. Sakkoulas 1986).

  2. 2.

    On accountability vis-à-vis various constituencies, see N. Kirsch, The Pluralism of Global Administrative Law, 17 EUR. J. OF INT'L L. 247-278 (2006).

  3. 3.

    For further details, see One World Trust, Power without Accountability?, The Global Accountability Report 3 (2003).

  4. 4.

    See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 664-70 (Oxford, U.K. and New York: Oxford University Press, 6th ed. 2003).

  5. 5.

    Anne Peters, International Organizations: Effectiveness and Accountability, SSRN Electronic Journal (2016), https://ssrn.com/abstract=2770606 (last accessed February 2019).

  6. 6.

    The International Law Commission has only recently begun to consider the responsibilities of international organizations in the wake of its completion of its work on state responsibility. See Report of the ILC, 55th Session, General Assembly Official Records, 58th Session, Supplement No. 10, UN Doc. A/58/10, Chapter 4 and Report of the Sixth Committee (UN Doc. A/58/514) of November 7, 2003, Part 3, §5.

  7. 7.

    In relevance to the responsibility by international organizations, Brownlie cites on p. 665 the work of KLEIN, LA RESPONSABILITÉ DES ORGANIZATIONS INTERNATIONALES (1998); WELLENS, REMEDIES AGAINST INTERNATIONAL ORGANIZATIONS (2002); and DOMINICÉ, MELANGES VIRALLY 225-38 (1991).

  8. 8.

    See information about the Responsibility of the International Organizations by the Codification Division of the Office of the Legal Affairs of the International Law Commission, archived at https://web.archive.org/web/20120326195759/http://untreaty.un.org/ilc/summaries/9_11.htm (last accessed January 2019). See also Frank Hoffmeister, Litigating Against the European Union and its Member States – Who Responds under the ILC’s Draft Articles on International Responsibility of International Organizations, 21 EUR. J. INT'L L. 723 (2010).

  9. 9.

    Visit the official webpage of the IPCC, available at www.ipcc.ch (last accessed January 2019).

  10. 10.

    SUSAN ROSE – ACKERMAN, RETHINKING THE PROGRESSIVE AGENDA 34 (New York: The Free Press 1992). See also Giandomenico Majone, Controlling Regulatory Bureaucracies: Lessons from the American Experience 22 (1993) (EUI Working Paper SPS No. 93/3) (Badia Fiesolana, San Domenico (FL): European University Institute, Florence, Department of Political and Social Sciences); Giandomenico Majone, Independence vs. Accountability? Non-Majoritarian Institutions and Democratic Government in Europe 21 (1994) (EUI Working Papers in Political and Social Sciences) (European University Institute, Florence).

  11. 11.

    In addition, the Treaty of Lisbon incorporates the Charter of Fundamental Rights and the European Convention of Human Rights, which includes a right to good administration. Good administration means that administration is obligated to give reasons for its decisions.

  12. 12.

    Domestic administrative laws in various jurisdictions provide for such duty, such as in Greece and the UK. See, e.g., C. Graham, Self-Regulation, in ADMINISTRATIVE LAW AND GOVERNMENT ACTION (G. Richardson & H. Genn eds., Oxford 1994).

  13. 13.

    See Codex Procedural Manual, Nineteenth Edition, available at http://www.fao.org/docrep/012/i1400e/i1400e.pdf, joint edition by FAO and WHO (last accessed January 2019).

  14. 14.

    For example, Greek administrative law provides for such requirement and Canadian law does the same. See, e.g., Baker v. Canada, [1999] 2 CLR 273 (HCA).

  15. 15.

    See, e.g., Articles 19 and 20 of the Constitution of WHO and Article 19 para 1 and 2 of the Constitution of ILO.

  16. 16.

    For a comprehensive analysis of the role of the ICJ as a supreme global judicial body, see GIULIANA ZICCARDI CAPALDO, THE PILLARS OF GLOBAL LAW 95 (Ashgate Publications 2008).

  17. 17.

    See Sect. 3.1.

  18. 18.

    ICJ Reports 1993, pages 467 - 468. In 1946 the General Assembly authorized the WHO to request advisory opinions from the ICJ on judicial issues arising in the framework of its activity in accordance with articles 96.2 of the Charter, 76 of the Constitution of the WHO and X.2 of the agreement between the UN and the WHO.

  19. 19.

    As regards the power to make a reference to the Court, see Article 35 of the Treaty of the European Union and the table of declarations made by the Member States in accordance with that provision, OJ 2005 C 143, pp. 1-4. See also Article 23a of the Protocol on the Statute of the Court of Justice and Article 104b of its Rules of Procedure, OJ 2008 L24, p. 39-43.

  20. 20.

    CHRIS MOONEY, THE REPUBLICAN WAR ON SCIENCE (The New York Times 2005).

  21. 21.

    Paragraph 5 of the Non-Compliance Procedure (1998), following procedure has been formulated pursuant to Article 8 of the Montreal Protocol, UNEP/OzL.Pro/WG.1/18/CRP.8, p. 581.

  22. 22.

    The problem of lack of continuity was raised during a review of experience with the procedure lasted over the previous six years, conducted by the Ad Hoc Working Group of Legal and Technical Experts on Noncompliance. UNEP, Ad Hoc Working Group of Legal and Technical Experts on Non-Compliance with the Montreal Protocol, Report on the Work of the Ad Hoc Working Group of Legal and Technical Experts on Non-Compliance with the Montreal Protocol, U.N. Doc. UNEP/OzL.Pro/WG.4/1/3 (Nov. 18, 1998), p. 16, available at http://www.unep.ch/ozone/docs/adhoc-rpt.doc (last accessed January 2019). Changes were then adopted in 1998 by the Tenth Meeting of the Parties. Montreal Non-Compliance Procedure.

  23. 23.

    Svitlana Kravchenko, The Aarhus Convention and Innovations in Compliance with Multilateral Environmental Agreements, 18 COLO. J. INT'L ENVTL. L. & POL’Y 1 (2007), at 12.

  24. 24.

    See Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT'L ORG. 427 (1988); see also DOUBLE-EDGED DIPLOMACY (Peter Evans et al. eds. 1993).

  25. 25.

    See Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT'L ORG. 427 (1988); see also DOUBLE-EDGED DIPLOMACY (Peter Evans et al. eds. 1993).

  26. 26.

    See the official cite of the IUCN, www.iucn.org (last accessed January 2019).

  27. 27.

    See Article 8 of the Stockholm Convention.

  28. 28.

    See, e.g., Understanding the Codex Alimentarius Commission – Revised and Updated, a Report by the FAO, available at http://www.fao.org/docrep/008/y7867e/y7867e06.htm#TopOfPage (last accessed January 2019).

  29. 29.

    FAO provides the Secretariat of the International Plant Protection Convention. International Plant Protection Convention article 2, Dec. 6, 1951, 150 U.N.T.S. 67 [hereinafter IPCC]. The IPCC is an international plant health agreement, established in 1952, that aims to protect cultivated and wild plants by preventing the introduction and spread of pests. For more information, visit the official website of the convention, https://www.ippc.int/ (last accessed January 2019).

  30. 30.

    Ronald B. Mitchell, Compliance Theory: An Overview, in IMPROVING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL LAW 3-28 (James Cameron, Jacob Werksman, & Peter Roderick eds. 1996); Michael Bothe, The Evaluation of Enforcement Mechanisms in International Environmental Law: An Overview, in ENFORCING ENVIRONMENTAL STANDARDS: ECONOMIC MECHANISMS AS VIABLE MEANS? 13, 27-29 (Rüdiger Wolfrum ed. 1996).

  31. 31.

    See the stages of the regulatory process, as they are presented in Part I and Part II of the Book.

  32. 32.

    Kal Raustiala, Compliance & Effectiveness in International Regulatory Cooperation, 32 CASE WESTERN RESERVE J. INT'L L. 387 (2000).

  33. 33.

    See Principle 19 of the draft “Principles of International Law for Sustainable Development” prepared for the 4th session of the UN Commission on Sustainable Development: “monitoring of compliance with international commitments” formulated as an obligation of States to accept collective supervision of their compliance with agreed norms. About the status of the principle of sustainable development as a principle of international law, see, e.g., CHRISTINA VOIGT, SUSTAINABLE DEVELOPMENT AS A PRINCIPLE OF INTERNATIONAL LAW – RESOLVING CONFLICTS BETWEEN CLIMATE MEASURES AND WTO LAWS (Martinus Nijhoff Publishers 2008). This volume provides a framework for the doctrinal foundation of sustainable development as a principle of integration in International Law. See, Peter H. Sand, Institution-building to Assist Compliance with International Environmental Law: Perspectives, in 1 MAKING LAW WORK, ENVIRONMENTAL COMPLIANCE AND SUSTAINABLE DEVELOPMENT 225 (Durwood Zaelke et al. eds, Cameron May 2005.)

  34. 34.

    See Sect. 6.2.3.

  35. 35.

    For more information, visit the page of the Chemical Review Committee on the official website of the Convention of the Rotterdam Convention, http://www.pic.int/TheConvention/ChemicalReviewCommittee/OverviewandMandate/tabid/1059/language/en-US/Default.aspx(last accessed January 2019).

  36. 36.

    See Sect. 6.2.1.

  37. 37.

    Cf. Article 226 (Art. 258 TFEU) introduces the infringement procedure and empowers the Commission to bring a Member State before the ECJ for failure to fulfill Community obligations.

  38. 38.

    GEORGE A. BERMANN ET AL, ADMINISTRATIVE LAW OF THE EUROPEAN UNION, JUDICIAL REVIEW 69 (National Book Network publishers 2008).

  39. 39.

    THOMAS M. FRANK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS (Oxford University Press Publisher 1997).

  40. 40.

    LeRoy Paddock & Jessica A. Wentz, Next generation environmental compliance and enforcement (Environmental Law Institute, Washington, D.C. 2014), p. 6.

  41. 41.

    ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY – COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 27 (Harvard University Press, Cambridge, Massachusetts, London, England 1995, p. 135.

  42. 42.

    Michael Wood, Speech at the Chatham House, The Principle of Non-Intervention in Contemporary International Law: Non-Interference in a State’s Internal Affairs used to be a Rule of International Law: Is It Still? (Feb. 28, 2007), archived at https://studylib.net/doc/8433936/the-principle-of-non-intervention-in (last accessed January 2019).

  43. 43.

    During the last year of her life, Rachel Carson discussed before a U.S. Senate subcommittee her emerging ideas about the relationship between environmental contamination and human rights. She urged recognition of an individual’s right to know about poisons introduced into one’s environment by others and the right to protection against them. Rachel Carson on environmental human rights: Senate Testimony hearings before the Subcommittee on Reorganization and International Organizations of the Committee on Government Operations, Interagency Coordination in Environmental Hazards (Pesticides)‖, US Senate 88th Cong., 1st Sess, June 4, 1962.

  44. 44.

    See, e.g., the main convention on the topic which is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), 1999, 38 I.L.M. 517. About the Aarhus Convention, see S. Stec & S. Casey-Lefkowitz, The Aarhus Convention: An Implementation Guide (New York and Geneva, United Nations 2000) serving practically as an implementation guide for the convention, available at https://www.unece.org/fileadmin/DAM/env/pp/acig.pdf (last accessed January 2019). See also Directive 2003/4/EC on public access to environmental information and repealing Council Directive 90/313/EEC [2003] OJ L41/26. The Directive is one of a number of measures designed to bring EU environmental law into line with Aarhus requirements. See also Winfield J. Wilson, Legal Foundations for NGO Participation in Climate Treaty Negotiations, 10 SUSTAINABLE DEV. L. & POL’Y 54 (2010).

  45. 45.

    See, e.g., Francesco Francioni, International Human Rights in an Environmental Horizon, 21 EUR. J. INT'L L. 41 (February 2010).

  46. 46.

    KENNETH C. DAVIS, 1 ADMIN. LAW TREATISE 207-8 (2d ed. 1978).

  47. 47.

    Ethyl Corp. v. EPA, 541 F. 2d 1, 68 (D.C. Cir. 1976) (LEVENTHAL, J.).

  48. 48.

    About “harmonization”, see David W. Leebron, Claims for Harmonization: A Theoretical Framework, 27 CAN. BUS. L. J. 63 (1996); Joanne Scott also refers to the concept of “procedural harmonization”: THE LAW OF THE SINGLE EUROPEAN MARKET: UNPACKING THE PREMISES (Catharine Barnard and Joanne Scott eds., Hart Publishing, Oxford 2002); Thomas O. Main, The Procedural Foundation of Substantive Law, 87 WASH. U. L. REV. 801 (2010).

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  1. European Institute of Law, Science and Technology, Athens, Greece

    Dionysia-Theodora Avgerinopoulou

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Avgerinopoulou, DT. (2019). A New Modus Operandi for the International Institutions with Environmental Competence. In: Science-Based Lawmaking . Springer, Cham. https://doi.org/10.1007/978-3-030-21417-3_13

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