The Crossroad Of International Environmental Law Enforcement

Introduction

The relevance of International Environmental Law (IEL) has taken a significant leap as the international community acquired awareness of the increasing exploitation of natural resources beyond planetary boundaries. Humanity is running out of time to ensure environmental sustainability and stop climate change, and strong compliance with environmental international norms is not only advisable, but indispensable for the survival of flora, fauna and, of course, humans.

However, the effectiveness of IEL has been challenged by multiple factors, including the lack of accountability for its violations, and a propensity for soft compliance mechanisms that are non-adversarial and non-confrontational. These mechanisms may be considered adequate in terms of providing a greater space for States to develop sufficient capacities to comply with IEL obligations at a pace that respects their capabilities. However, it may also be argued that the urge to revert environmental impacts does not leave room for progressive enforcement, and that more accountability is needed to ensure the effectiveness of IEL. Nevertheless, IEL lacks strong enforcement mechanisms.

In contrast to the soft enforcement of IEL, other fields of law may open paths through which IEL obligations may be enforced, due to the close connection between the environment and societal challenges. In this regard, environmental law obligations have been channeled through tort law, constitutional law, international trade law, or human rights law –inter alia–, particularly in relation to subsistence human rights, such as the right to an adequate standard of living, and related rights aimed at covering basic material needs, such as food, water, and housing. In this process, IEL is translated into a tort law, constitutional law, trade law or human rights law discourse, which may impact how objectives are prioritized and goals are pursued. The translation of environmental obligations into the law and language of these other legal regimes calls for an evaluation of the systemic risks such a merger may entail.

In the first place, it is necessary to reflect on the adequateness of these regimes in the light of the particularities, ethos and objectives pursued by IEL; in the second place, considering the different –and perhaps non-aligned– interests pursued by the different regimes, it is necessary to identify whether it is in the interest of the enforcement of IEL for adjudicators from other fields of law to become interpreters and adjudicators on IEL, thereby creating jurisprudence and participating in the progressive development of IEL.

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