THE PROBLEM OF THE INEFFECTIVENESS OF THE

INTERNATIONAL FIGHT AGAINST CLIMATE CHANGE

1
 THE GENERAL CONTEXT OF STUDY

Towards the end of 1970 and early 1980’s, the world started experiencing a shift from
the scope of power rivalry to the quest for development. This was as a result of the fact that
the world’s natural and human caused disasters were like cankerworm eating into the fabrics
of the human habitable environment. The quest for this development entails the need for
economic stability, social viability, and cultural revitalisation, in fact just to name a few.
Amongst these other new forms of contemporary squabbles affecting the entire planet is the
unprecedented change of the world’s climate, which endangers the environment rendering it
inhabitable for both plants and animals. The international body (states as a preponderant actor,
Transnationals’ and non-governmental organisations) have gone a long way to help engaged
into collective multilateral agreements to reduce as well as curb environmental problems. By
multilateral agreements we are referring to some internationally signed and ratified treaties or
agreements which are intended to preserve, finance and protect our biodiversity. Since the
early 1970’s, a considerable number of multilateral agreements have been concluded in the
environmental domain that establishes a common pattern of institutionalised arrangements 1.
One of the very important, even though not the most, multilateral agreement is the 1972
United Nations conference in Stockholm. Briefly, this is a north south environmental
negotiation which was aimed at rendering an environmental treaty which is fair, wise,
efficient and stable. Even though the article addresses the issued from the point of view of the
south but it has a vision for the entire world.

The ineffective application of the dispositions of the above enumerated

conference2, let to the unravelling of other major conferences. To this light the Rio de Janeiro
conference of 3 to 14 June 1992 came to the lamplight. The objectives of this conference even
though not too far from that of the previous, were to instigate and to place a favourable
platform onto which countries can comfortably implement climatic laws. They were to
formulate some constructive and instructive norms and institution to help reduce the rapid
effect of the planet’s climate. Amongst their goals, they were to preserve the earth’s
biodiversity, impliedly protecting the vulnerable species and their habitats, preventing
destructive resources and reducing pollution of green housed gases into the atmosphere3.
1
Autonomous Institutional Agreements in Multilateral Environmental Agreements. A Little
Notice in International Law by Robbin R. Churchill and Geri Ulf stein.
2
The Stockholm conference of 1972
3
Will voluntary agreements at the level of the EU deliver on environmental objectives? By
Guilio Volpi, Stephen Singer. World Wide Fund for Nature, climate and energy policy unit.

2
Since the development of the EU’s fifth Environmental Action Programme4 which argued for
the need to broaden the range of policy instruments , voluntary agreements or better still
multilateral environmental agreements are increasingly been used as a new policy tool in
solving environmental problems. Amongst other conferences and convention to help fight
against imbalance in the environment are, the Energy Efficiency Benchmarking Agreements
aimed to achieve Best Practice targets between 2000 and 2010 in Netherlands, Climate
Change Agreement agreed by the federal government in Germany, Climate Change Pact in
Italy, and just to name a few5. If the United Nations Framework Conference on Climate
Change (UNFCCC) seems interesting, it’s because is the centrepiece of global efforts to
combat turbulence of the environment and its ultimate objective 6 as stated in article 27 of the
convention is to stabilise the atmospheric concentration of the greenhouse gases (GHG’s) at a
safe level to allow economic development to proceed in a sustainable manner8 or better still
‘dans la longue duree’9. It was under the framework of the UNFCCC10 that the famous Kyoto
protocol degenerated.

In December 1997, in Kyoto over 160 parties to the 1992 United Nation Convention
adopted the Kyoto protocol11which for the first time establishes legally binding limits for
industrialised countries on emissions of carbon dioxide and other ‘greenhouse gases’ by
reducing emission related targets for Annex 1 Parties (G-77 convention as listed in Annex 1
4
The European Community adopted its first five year environmental action plan that was
intended to guide the future (1973-1977). This was followed by another second five year
programme (1978-1982)
5
For more of such voluntary multilateral agreements we can visit ‘Managing Compliance
with International Law’; A good practice guide December 2005
6
UNFCCC (New York 9, may 1992) printed in 31 ILM (1992)849(entered into force 21
march 1994) hereinafter (UNFCCC);see UNFCCC article 2
7
The UNFCCC 15th Conference of the parties. (Copenhagen protocol). Director; Sarai
Cosgrove.
8
NC Environmental Stewardship Initiative defines environmental sustainability as
meeting the need of the present without compromising the ability of future generations
to meet their needs
9
Fernand Braudel, ‘Ecrits sur l’histoire’, Paris, Flammarion, 1985, p 44, L’auteur désigne
par le terme »longue durée », une histoire d’ampleur séculaire dont les données sont
manifestement permanentes. Il l’oppose à l’histoire traditionnelle ou événementielle, qui
selon lui, est attentive au temps bref, à l’individu, à l’évènement et qui est d’un souffle
court.
10
The UNFCCC is an international environmental conference treaty produced at the
UNCED, formally known as the earth summit held in Reo De Janeiro
11
UNFCCC opened for signature June 4,1992 treaty DOC No 102-38(1992)entered into
force March 21,1994

3
of the convention. We should note that the protocol is quite complex reflecting the
complicated political, economic, scientific, and legal issues raised by human induced climate
change. Due to this complication the text failed absolutely to provide guidelines for
guaranteeing the transparency, credibility and reliability of voluntary environmental
agreements on the parts of states and some other international actors. There are no mandatory
binding forms to qualify these signatories and beside not all major pollutants have ratified the
treaty.in fact there was no stipulated commission to canalise and monitor the results, so
therefore the effectiveness of the text is highly questioned. There is however, a tremendous
gap between theory and practice.

It was in the light of the ineffective application of the dispositions found in the Kyoto
protocol that then, came up the Copenhagen summit in Denmark in December 2009. We will
therefore proceed to analyse our particular domain of environmental problems which will be
climate change.

SPECIFIC CONTEXT OF STUDY

Climate change is a very vast domain of study so much so that if we want to recollect
all facts about it will be more or less impossible. In this light we will project a cognitive
period which ranges from 1961 to 1997 and present dates. This is because these periods
provide the most observable data on volume changes on the earth’s planet. 12 Climate change
is the rapid changes of the earth’s features of cooling and warming inappropriately. But note
should be taken that the earth has always experience change in its climate that is, going or
flowing through a series of warming and cooling cycles. However, recent large scale
anthropogenic influences have led to dramatic changes within this system. As a result the
earth has entered into a warming cycle of unprecedented speed at a time when it should be
cooling.13 The issue of climate change is a very complex one which is evolving now and will
for ever evolve in the future. Reducing GHG’s is not the only prudent step to problem shoot

12
visit, www.pnas.org/cgi/adclick/ Science Session PNAS Podcast
13
Gray V (2002) The Green House Delusion; A critique of ‘climate change 2001’
Multiscience Publishing Co ltd.UK

4
the wide spreading effects of climate change. Nevertheless it was in the light of this reduction
that in 2001 the Climate Change Action Plan was implemented14 by various countries. We
have the Ontario CCAP, Delaware CCAP and Montana CCAP as examples. It was also in the
light of fighting for climate ramification that the United Nations in 1988 formed the
Intergovernmental Panel on Climate Change15 to help accelerate resolutions of this
contemporary societal defect.

The rapid changes of cooling and warming may lead to an increment of the earth’s
temperature which may not be habitable for both plants and animals hence; there exist the risk
of some mammalian extinction. Other susceptible affected areas are the transport system;
agriculture, energy resources, industry, deforestation, just to name a few. These frightening
and highly devastating ramifications caused the UN to formulate the UNFCCC to help
propagate climatic solutions. To therefore re-enforce this convention, the Kyoto protocol was
formulated in 1997 and only entered into force in 2005, eight years after the idea was
conceived. If the Kyoto protocol seem interesting therefore, it’s because is the backbone onto
which climatic dispositions were multilaterally signed. 184 countries of the north and south
have ratified it but only 38 industrialised countries have the obligation to reduce their
emission of 5.2% from 2008 to 2012, in relation to 1990. If we have to judge from this view
therefore, there are two domains of negotiations, which are UNFCCC and the Kyoto protocol.

Noticing that the Kyoto protocol terminates in 2012, the objective of the COP – MOP
in Copenhagen in 2009 was to find another accord to engage polluting and non-polluting
countries, indirectly attesting the failure of the Kyoto protocol. Even though the Kyoto
protocol stipulated emission reduction rates, many industrialised countries did not respect the
rule.16

Knowing fully well that the effects of climate change will mostly been felt by the less
develop and the developing countries, we realised that the even the non-polluting countries
have a role to play. The effects are as far reaching as the causes most especially the falling of
the agricultural productivity17, drought, flood and sea level rise etc. to this therefore we realise
14
It was initiated to regroup commitments to meet or exceed the targets set by the Kyoto
protocol. The protocol is viewed as an opportunity for innovation and an incentive to
develop sources of clean and renewable energy.
15
The IPCC was jointly established by the WMO and the UNEP
16
France 0%, Japan -6%, Germany -21%, Australia +8% etc.
17
Global warming and agriculture; Impact estimates by country William R Clive

5
that the principle of solidarity is a prerequisite to help solve the climate problem as was
mentioned by Pope John Paul in his Populorum Progressio 48 speech ‘the duty of promoting
solidarity also falls on the shoulders of states’18. All in all it will be instructive for us to
examine the existing juridical instruments which fight against the various factors (causes) of
climate change. We will therefore base our work on the content, pertinence and the
effectiveness of these juridical documents. How effective have they been applied that is, to
determine if the proceeding dispositions have attained their objectives or not. So the objective
of our work will be to analyse if these norms and institutions placed to combat climate change
have been effective absolutely.

SCOPE OF WORK

Knowing fully well that climate change is a global phenomenon19; we should note that
the institutions needed to implement effective policy reside mainly with national government.
But however, our scope of work will not be to examine the degree of implementation of all
government respectively. Instead we will try to examine the necessary instruments to combat
climate change like text and institutions that have been put in place to fight its ramification.
This is at the level of our material scope of work. We will examine the effectiveness of these
climate change policy instruments20, what is their degree of efficiency.

The spatial scope of our work will be as broad as the effects of climate change are as
varied. So in this light, we will determine therefore the stipulated areas of application
designed by the existing text. For instance, the Kyoto protocol was aimed at reducing
emissions in the stratosphere, not European stratosphere neither American stratosphere but the
entire community. But however, we will be stressing the most likely, if not, then heavily
affected areas like the developing and less developed countries.

18
Commission of Bishops Conference of the European Community Expert Group; A
Christian view of climate change
19
A Madisonian Approach to Climate Policy; David G. Victor
20
Faure, M, Gupta J and Nenjes A (2003) Key instrumental and Institutional design issues
in climate change policy.

6
 CONCEPTUAL CLARIFICATION

CLIMATE CHANGE

The definition of climate change is not static because of the ever increasing published
articles that pop up now and then, but however we will try to scientifically define it from the
definitions of other meteorologist and references. Accepting the fact that climate change is a
current phenomenon, we will emphasize on the definitions and the historical background of
the problem. So in this light we will be looking at the definition of climate change and the
historical development of the current societal problem. We should also note that the climate
change problem is the very first environmental problem that affects humankind and equally
affects the biosphere. In this light we have the following definition and statistics.

Climate change as defined by Herve Kempf in his noble article ‘La crise ecologique;
une question de justice’ in which he said ‘le changement climatique est du a l’accroissement
de l’effet de serre; certains gaz, tels que le dioyde de carbone ou le methane, ont la propriete
de piege pres de la planete une partie du ratonnement qu’elle reflechit vers l’espace. Du fait
de l’accumulation recente de ces gaz dans l’atmosphere, la chaleur moyenne de celle-ci
augmente.21’ From his definition we can deduce that they are the combustion caused by
humans that have altered the earth’s climatic rhythm. The veritable question is what are the
causes of this recent change of the climate? However we will summarise the causes by
stipulating that there are the concentrations of greenhouse gages in the atmosphere that were
or have and are still been emitted by the highly industrialised countries like United States of
America, China, India and the rest of the annex I countries. We should note that the
ecological crisis have taken a considerable ‘ampleur’ in our recent years but the paradox is
that, the effects of it are surely falling on the non-culprits, that is, the less develop countries,
who are not even the most major pollutants. At this point we realise that the problem of
climatic changes poses a crucial question of equity in a unique world for a common good and
common danger respectively.

21
Une crise ecologigue d’ampleur historique N 727 fevrier 2010

7
 Whilst the historical backgrounds of climate change22 dates back to the 12th century as
some scientific authors say, it will be very instructive for us to give a clear cut period of our
work. Our point of focus will be from the period of 1980’s to present date. The development
of the climate change regime until the conclusion of the Kyoto protocol in 1997 can usefully
be divided into five periods; firstly, the foundation period, during which scientific concern
about global warming developed23, secondly the agenda-setting phase from 1985 to
1988when climate change was transform from an environmental issue to a policy issue24.
Thirdly there was the pre-negotiation period from 1988 to 1990 when government became
heavily involved in the process. Fourthly was the formal intergovernmental negotiation phase
which led to the adoption of the Framework Convention on Climate Change (FCCC) in May
199225 and fifthly was the post-agreement phase focusing on the elaboration and
implementation of the FCCC and the initiation of negotiations on additional commitment,
leading to the adoption of the Kyoto protocol in December 199726.

Although the greenhouse warming theory was put forth by more than a century ago by
the Swedish chemist Svante Arrhenius (1896), climate change did not emerge as a political
issue until 1990’s. However as late as 1979, efforts by the organizers of the first world climate
conference to attract participants proved unsuccessful, and even in 1985 when a workshop for
climate change was held in Villach, Austria was still unsuccessful. It was only by the late
1980’s that the US was holding frequent hearings on global warming. The issue was also been
raised and discussed in the UN general assembly; and some other international meetings such
as the 1988 Toronto conference, the 1989 Hague and Noordwijk conferences, the IPCC first
Assessment Report 1990, second world climate conference in 1990, which attracted numerous
ministers and even some heads of government.

Talking about international environmental agreements, they have a long history but for
the purpose of better understanding we will make it short and concise. Many regional
agreements were concluded in the early twentieth century and a range of treaties which
formed the united nations in 1945. But the growth of environmental agreements is closely
22
The history of the global Climate Change regime by Daniel Bodansky
23
For general discussions, see Ausubel 1983; Cain 1983; Kellogg 1987; Revelle 1985;
Weiner 1990.
24
See general Pomerance 1989 page,259
25
Mintzer and Leonard 1994
26
See generally Victor and Salt 1994; Rowlands 1995

8
linked to two key international events; the 1972 United Nations Conference on the Human
Environment at the Stockholm and the 1992 United Nations Conference on Environment and
Development (UNCED) at Rio de Janeiro. The 1972 Stockholm Conference can be seen as
the culmination of efforts to foster attention and political momentum for the environment,
leading to the creation of the United Nations Environment Programme (UNEP). From the
above enumerated we can deduce the facts that the climate change question have gained
prominence in our recent years.

All in all what we can say is that over the past two decades, global climate change has
developed from a concern from the scientific community into a major agenda item for policy
makers. Global climate change is perhaps a model case therefore of global environmental
problems, given that anthropogenic and natural emissions around the world, regardless of
location, contribute to the alteration of the earth’s atmosphere. Therefore, the response to this
must be global, even though the effects to this thing vary by region. So far, despite the
growing recognition of the importance of the problem, the international climate change
regime is still under construction. So in this light, we cannot compare it with other
environmental regimes, such as the Vienna Convention on the protection of the Ozone Layer
and the Montreal Protocol that followed it in 1987. Note that unlike the climate regime, the
ozone regime contains binding obligations for most states and the benefits from the support of
an international consensus.

INEFFECTIVENESS

To better understand the main object of the exercise, it will be very instructive to
highlight the importance or significance of the effectiveness of environmental dispositions as
‘corpus normatif’ to combat climate change. The effectiveness of a climatic provisions as note
should be taken has got nothing to do with the scientific knowledge or understanding of the
regulations. So, therefore, the mere fact of comprehension does not confirm effectiveness. For

9
instance, in the Framework Convention on Climate Change (FCCC), the world’s nations
aspire to stabilizing ‘greenhouse gas (combustion gases) concentrations in the atmosphere at
the level that would prevent dangerous anthropogenic interference with the climate system’.
And this was clearly stipulated in the FCCC 1992 text, Article 2. Now the aspect is that the
central issue for evaluating this regime lies in the question of effectiveness- that is, will the
regime achieve that ambitious objectives? For us to determine whether or not a regime is
effective means we should trace back to see if that regime accomplished its goals, to see if the
FCCC has put in place institutions to achieve these set forth objectives. Answering the
question, therefore, requires the analyst to define, implicitly or explicitly, the goals against he
will evaluate the regime’s (FCCC) performance. The FCCC will eventually be evaluated
against a range of normative and empirical criteria.

Note that many jurists have pointed out this aspect of effectiveness with diverse points
of view. Effectiveness in this light, evaluates the degree of success of that climatic
dispositions and at the point, the norms render researchers to evaluate the concrete effects that
the said norm was created to accomplish.27 Another author opines that for us to absolutely
determine the effectiveness of climatic norms for example, we should take into consideration
the finality of that norm, the content of that norm, and its legal scope.28 So the problem is to
know whether or not the climate change norms were applied effectively and whether climate
change was averted successfully and also whether the FCCC caused, or how much it
contributed if at all it did, to the outcome of effectiveness (Andresen and Wettestad 1995).

However, the regime’s effectiveness depends on several factors29 while the

ineffectiveness of the climatic regime can be accounted for the following reason, because of
the failures of political will, failure of knowledge, failures of implementation. The failure of
climatic regime can also be accounted because member states want to resolve a problem but
are unwilling to take the steps and incur the cost necessary to do so. More so, some
governments want to extract whatever political benefits can be gained by negotiating and
signing an environmental agreement without expending the resources required fulfilling the

27
Lagmani, S ‘l’effectivite des sanctions des vilation des droits fondamentaux.
Developpement recents’in l’effectivite des droits fondamentaux dans les pays de la
communaute francophone. Collloque AUPELF-UREF,Port-Louis,1994 pp 541-543
28
Conac, G ‘Les constitutions des Etats de l’afrique et leur effectivite’ in Dynamiques et
finalites des droits africains. Paris, Economica,1980,p.387
29
Bernauer 1995; Jacobson and Brown Weiss 1995; Victor, Raustiala, and Skollnikoff
1998; Wettestad 1995

10
corresponding commitment. So therefore, these and some other similar facts have introduced
a large gap between the climatic goals laid out in the Kyoto preamble and the actual intention
of the member states.

So therefore, explaining ineffectiveness in these cases involves considerable attention

to the political willingness for the member states to act upon the climatic norms. So, in this
light, we will be evaluating the degree of success of the climatic dispositions, which to our
greatest guess, have not been applied to the latter. The question now is what are the reasons
for these or what can account for this ineffectiveness of environmental dispositions in general
and climatic dispositions in particular.

SIGNIFICANCE OF TOPIC

Our topic, which is all about climate change, has two significant propellers. The first is
the practical significance while the second is the scientific significance. In other words, why
this topic? Why are we so interested in this topic? In the following paragraphs we will be
viewing the reasons concisely.

Practical significance;

Since the early 1990’s much attention has been accorded to the climate change
problem. We have witness much growth of a body of knowledge about climate change. And
because climate change by its very nature is a global problem where responsibilities are
difficult to attribute, and where activities in one country can affect the other in a faraway
region, mitigating global climate change can only be achieved efficiently through
International Corporation. And for this reason scholars of international relations have
developed considerable attention to this topic as was stipulated by Urs Luterbacher and Derlef
F. Sprinnz in his book entitled ‘Problems of global environmental corporation’. This facts
tells us that the climate problem have occupied the international scholarly world which also
ignites us to try as much as possible to evaluate the field of studies.

11
 Moreover, the current global climate change will be an increased challenge to all
earth’s inhabitants, even though the impacts are presume to vary substantially from region to
region. Evaluating the historical trends of climate change from the 1980’s up to present date
we will realise that the impacts will be mostly felt in marginal agricultural areas which are
mostly located in the developing countries. This will go a long way to affect humankind
which is something very delicate. This tells us how technical this part of studies can be and
makes one eager to want to explore the solutions accrued to the human race. This explains the
social interest and significance we accrued to this topic.

More so, looking at the social point of view, the amount of participants recorded in all
climate conventions and conferences who are present testifies the central place occupied by
climate change in the international relations. Also this planetary environmental crises is been
massively caused by the formidable expansion of economic activities of giant industrialize
countries. Also the question of climate change also raises some sub-questions like, cutting
down on industrial companies which will in turn slow down development, it talks about other
sources of energy other than burning fossil fuels which may rather be more expensive for
developing states, the question of International Corporation, and even the questions of natural
materials like petrol. All these things instigate us to have this particular practical interest for
the topic. It’s at this point that we see our economic interest.

Scientific significance;

Notwithstanding the considerable volume of work accrue by the scientific community

to the questions and stakes of climate change; it will be very instructive for us to ascertain the
fact that it’s a very recent field of work and the construction of its disciplines are always very
active. It is at the level of the construction of its disciplines that we take part. It’s at this point
that our interest is presented. Significance in this aspect can be seen in a larger sense than
what international law recognises today. The significance of this topic defeats the norms of
international law for instance, ‘la materialite ne fait pas tourjours l’unanimite’, this is
because there is still recurrent tensions in the field of climate change. They are still some
vigorous and harsh conflicting disciplines which does not proof unanimity. These tensions
can be traced looking at the specific interest of the racing actors. A glaring example can be

12
seen at the level of the tensions can occur between the industrialised countries commonly
called the Annex 1 and the developing countries at the south. So the north south tensions are
one of them. Also there is also the tension between the natural human needs and the aspect of
ecosystem preservations. It will be very instructive therefore, to pay particular attention to the
text that guides our climate change regime and to determine the putting in place of these texts
by its various actors.

LITERATURE REVUE

It is worth noting that, since the Stockholm conference of 1972 on the environment,
the international community has been experiencing and is still undergoing a series of literature
on the issues of climate change. Most of it has been written in the form of articles while others
are cognitive documents, some of which we will be analysed in the preceding paragraphs.

A prime illustrative case in question that demonstrates certain principles of climate

change can be found in ‘International Relations and Global Climate Change’ by Luterbacher
and Sprinz, editors’.30 This didactic book is a key instrument in analysing the global climate
change contemporary issues in relation to the international community. As concerns the
available remedies for climate change, there have been lots of divergences and relatively to
this issue diverse actors of international relations have shared their views. A glaring example
of such remedy is International Corporation. Paradoxically Daniel Bodansky in the History of
Climate Change31, declared, after having portrayed all the different views, that international
corporation is close to impossible. Daniel Bodansky demonstrated the diverse views of
different actors pertaining to the climate issue when he portrayed that, at the Second World
Climate Conference (SWCC) in November 1990, countries and other international actors
organised themselves into Alliance of Small Island States (AOSIS), and note that it was at this
conference (SWCC) that major subsequent FCCC negotiations for the emissions reductions
were met. Also at the other pole, the oil producing states questioned the scientific existence of
climate change. In the middle, the big industrialisation such as Brazil, China, and India tended
to insist that the measures for combating climate change not infringe on their sovereignty in

30
‘International Relations and Global Climate Change by Luterbacher and Sprinz, editors’
31
History of Climate Change

13
particular and their rights to develop economically in general. They also argued as presented
by Daniel Bodansky that the North has historically been responsible for creating the climate
change problem, the north should be responsible for solving it. These current diplomatic
difficulties clearly emphasize the necessity to analyse and synthesise recent scholarly
knowledge about ways to envisage and suggest corporative strategies on climate change. All
these testify that achieving the goal of corporation to solve this common problem will be close
to a myth.

Continually, in as much as environmental law has experience and undergone

impressive growth over the past twenty years as note should be taken, when the climate issue
emerged in the late 1980’s, the international environmental law had little to say about it. The
reason advanced for such failure is mainly because of the sophisticated nature and rules
guiding the environmental system. And we should also note that the effects of the climate
crisis can be graver than any other and it was in this light that Urs Luterbacher and Detlef F
Sprinz32 postulated the need for global collaboration and widespread unity. They made
mention to the fact that the responses to global climate change is very weak and very faint
taking into consideration the fast growing and voluminous effects of the crisis at hand. It was
in this light that they went as far as proposing the main approaches that are to be followed to
solve international climate change ‘problems of global climate change’ – page 6, 1st
paragraph33. In fact International Corporation is often needed to achieve a collective good and
to create a particular framework to keep free-riding from occurring.

More so, in respect to the environmental problems in general and climatic problem in
particular, much attention should be placed on implementation policies. It is at this point that
Ian H. Rowlands in ‘Classical Theories of International Relations’ focuses on global climate
change implementation policies. He tries to question those cognitive strategies put in place
and how effective they have been applied. What are those schemes that will be needed to
implement environmental and or climatic provisions? We should note however that, because
of the spatial differences in climate change impacts, as well as the differences in net benefits

32
Problem of Global Environmental Corporation, Overcoming the problems endangered
by global climate change raises the question of international corporation and
collaboration.
33
A first group of studies stresses the influence of global climate change on the workings
of international systems at all levels while the second approach is concerned with the
impacts of driving forces on the global environment, and , ultimately on the climate
system

14
or cost of abatement, some international organs or actors have greater motivation than others
to endorse climate change policies when we talk of implementation, the key stone document
that comes to mind is the Kyoto Protocol as a text 34 and also the United Nations Framework
Convention on Climate Change as an institution to enable and ease implementation35. Despite
early hopes that the text and the structure respectively would include a clear commitment to
stabilise and reduce the concentration of combustion gases in the atmosphere, rather it
contains only a cumulated and ambiguous aim by industrialise countries to return to 1990
emission levels by the end of the decade. Now the fatal and frustrating question is how have
these two instruments of international law (the Kyoto protocol and the UNFCCC) been
effectively implemented to curb the widespread effects of climate change? Talking about the
Kyoto protocol, this document was intended to serve for two main purposes, to Daniel
Bodansky in ‘International Law and Regime Design’ they are; it outlined specific emission
targets for each developed country party, for 2008-2012 ‘commitment period’ and it also
outlined a variety of mechanisms to allow states to achieve these targets in a flexible manner.
This said document was opened for signature on March 16; 1998and will enter into force after
it has been signed by fifty-five states, representing 55 per cent of the total 1990 carbon
dioxide emissions of developed countries. Although this does not allow any one country to
block the protocol’s entry into force, in practice, entry into force will be extremely unlikely
without ratification by the United States. How then, can we expect implementation and
compliance to be effective? Still, Daniel Bodansky an eminent climate scholar projects that
the climate problem reflects two contrasting approaches to international law- what to him,
could be termed as ‘Hard’ and ‘Soft’ approaches. For brevity’s sake let’s peruse just a few of
his lines. The former approach views international environmental law essentially in domestic
or internal criminal law terms, as a command backed by the threat of sanctions; whilst the
latter views it in facilitative terms. The ‘Hard’ approach to international law reflects certain
core propositions which are amongst others are backed by the idea of punitive measures.36 To
this light therefore, subscribers to these approaches believe that the object of climate change

34
The document; Kyoto protocol; http; www.fccc.de/resources/docs/convkp/kpeng.html
January 15, 2001
35
See generally Barratt-Brown, Hajost, and Sterne 1993; Bodansky 1993; Golberg 1993;
Grubb et al. 1993; Sands 1992
36
The main purpose of international law is to impose specific obligations on states, the
obligation should be enforced through compulsory, binding dispute resolution, violators
should be subject to sanctions

15
 37
treaty should be impose with ‘teeth’ an illustrative instance is; former prime minister of
New Zealand, Geoffrey Palmer, has argued that the climate change problem necessitates the
development of new types of international institutions; he said ‘first, there must be a legislative
process which is capable of making binding rules which states must follow, even when they do not
agree. Second, there must be some means of having compulsory adjudication of disputes, if not to the
international court of justice, then perhaps to a special tribunal……….. Finally there needs to
be…….. an institutional authority capable of monitoring what the nation states are doing, blowing the
whistle on them when necessary, and acting as an effective coordinator of what action needs to be
taken ( Palmer 1992, 17)’ 38.

As for the UNFCCC non-compliance has been its very weakness from the very first
day it was concocted. The FCCC firstly contains no provisions specifying sanctions for
notorious culprits. Taking into consideration the Kyoto protocol’s stricter commitment, the
need for non-compliance procedure is more pressing. The fact that the Kyoto called on its
parties to consider the question of compliance tells you how important and vibrant the issue
is.39. Even at the COP-14 held in Buenos Aires, states agreed to begin a process to develop a
non-compliance system for the protocol. For brevity’s sake, the above enumerated books
coupled with their numerous chapters culminate to address in a scientific manner a cognitive
summary of the intergovernmental strategies put forth to combat climate change. However,
most of these books, if not all, goes beyond analysing only issues of climate change. They
also evoke broad social development and ways humans organise their relations with the
physical system and its processes. We can however not deny the fact that many fundamental
developments are closely link to the climate shifts as was seen. The period of economic
growth that took place in the international system after World War II, as well as the
industrialisation and acceleration of resource movements tremendously and constantly
increased the impacts of human activities on the environment. We cannot deny but affirm that
substantial population growth has occurred everywhere alongside mass migration, especially
in the developing of Asia and Africa, and this has also accentuated pressure on the
environment. Consequently, environmental degradation was realised coupled with increased
use of natural resources which have been associated with social problems. All in all, these
series of books present the world with a corporative challenge.

37
International law and Regime Design; Hard and Soft Approaches to International Law
38
Geoffrey Palmer- former New Zealand prime minister 1992
39
See Kyoto protocol ; ARTICLE 8

16
 Very importantly, the major stake is not the actual need for International Corporation.
The problem is not cooperating but its first of all states will to corporate and to this effect this
must begin in their national scope. What these books have actually failed to do was to outline
measures that national governments can implement to start preservation back in national
territories. Putting in place what these states have to do to preserve their forest and to cut the
use of fossil fuel to generate other source of energy for their industries.

Furthermore, in ‘An Appeal to Reason; A Cool Look at Global Warming with a New
Afterword’ Nigel Lawson calls for the international community to face the veritable and
dangerous problem eating up the entire world. He projects the less developing countries as
those to whom the pain might heavily fall on and at the same time he portrays the developing
and industrialised countries like China and India as the main emitters. Paradoxically, these
emitters claim that their emission rate does not equate neither does it even attain that of the
developed countries listed under Annex I, and that until then, and for some cogent reasons,
there can be no question of their agreeing to any binding restrictions on their emissions
irrespective of whether there is any change in the US policy on this issue after the bush
presidency has come to an end or not. In effect Nigel Lawson in chapter 5 of this scientific
piece, questions if the world can ever come up with any global agreement? We should also
have it in mind that ‘the overriding priority of the developing countries is to continue along
with the path of rapid economic growth and development’. And to them it is only through this
method that they can curb the widespread poverty and misery which affects their people
nations and even their wild life. To them as portrayed by Nigel Lawson, it was through
industrialisation that countries in the western world achieve their posterity and prosperity and
that it’s their time to do same. It was at this point that Nigel went further to advance the
reasons postulated by China for not complying with the climate scheme. China amongst other
developing and industrialised countries have made it clear that they will not be responsible for
such problems as was affirmed by the Chinese president Hu Jintao declared to the G8
‘considering both historical responsibility and current capability, developed countries should
take the lead in reducing carbon emissions and help developing countries to ease and adapt
to climate change’40. So there is the theme of justice that therefore runs in the strands. Nigel
points out that in as much as the international community is craving for an antidote to calm
down the rapid diversified dangers attached to this anthropogenic greenhouse gases in the
atmosphere, massive developing and other industrialised countries are doing little or nothing
40
Richard Spencer and Peter Foster, ‘ China and India reject climate change deal’, The
Daily Telegraph, 9 June 2007

17
to assist poorer countries of the burden. Accepting that in due course of an international
agreement, there will be the need for significant adaption aid for poorer countries, and quite
possibly a non-carbon technology transfer from developed to the less developed world. But to
our greatest dismay as pointed out by Nigel, the former idea was sought in vain at the Bali
conference. It was at this point that Nigel declared the Kyoto protocol as sick, dead and
buried.41 For brevity’s sake, Nigel Lawson carefully and succinctly examines the legal
interpretation surrounding climate change issues even though he made mention of the fact that
its cost of mitigation will seem very high. But this doesn’t cost a thing after all, no pain no
gain as the saying goes. While acknowledging the fact that his book is very instructive and
meaningful, his book ended up with little or no proposition as to any document that should
oblige the various international actors under international law to act upon. At least he would
have outlined some mandatory measures that will help these international actors of the
impending crises. I think he would have set forth compulsory rules under which states should
work.

The ‘UNSTOPPABLE GLOBAL WARMING; EVERY 1,500 YEARS’ by S. FRED SINGER

AND DENNIS T. AVERY is a cognitive document that vividly expresses certain questions that
articulates the key legislative arsenal that guides and helps construct the evaluative processes
of the international climate change problem. Without doubt, the Kyoto protocol serves as a
corner stone for the international treaty intended to be the ‘first step’ towards making the
requirements for a climate change free society. S Fred Singer and Dennis T Avery starts in
chapter 13 by cracking down on the document as seemingly very expensive. And they were
supported to this idea by Bjorn Lomborg in ‘The Skeptical Environmentalist’ 42. However,
only a portion of this amount can give all third world inhabitants access to basic health,
education and water43. In effect Africa is in deep pain and misery so saving them will
impliedly mean saving the ecosystems44. In this view the criticisms of the Kyoto protocol can
be overheard. Our question now is how will there be a collective and objective agreement of
41
Chapter 5, paragraph 2, lines 2-6
42
He estimates that the Kyoto protocol will need 150 billion USD annually, Bjorn Lomborg,
‘The Skeptical Environmentalist’; London; Cambridge University Press 200 page 322
43
The UNICEF body estimates that 70 – 80 billion can provide for water, education and
basic health to third world countries.
44
John Christy; Testimony before the US house of representative Committee resources
May 13, 2003

18
climate change when the text in itself is presented as weighty for sponsorship? This question
remains very uncertain and paints the future to be very bleak and to my point of view the
answer lies in the human conscience. Let social vices like egoism and self-interest stay far
from these issues of climate change. The issue now will be determining the prospects of the
Kyoto protocol that is, addressing and interpreting the content of the text in its entirety 45. The
protocol which whose aim was to cut emission at a particular border line should be respected.

We cannot however terminate this project without necessarily mentioning Vaclav Smil
in Global Catastrophes and Trends in chapter 4 when he listed other causes of climate
change other than the anthropogenic concentration of greenhouse gases in the atmosphere. He
however, points out that these latter have been historically prominent in masking the
environment. To him, he thinks they are some other worrisome large scale human activities
that have pondered on the smooth operational system of our climate. Conversion of forests,
grasslands, wetlands to crop fields and deforestation driven by the need for wood and charcoal
to heat homes and smelts and for lumber to construct cities and ships, changed the natural
ecosystems on a large scale in preindustrial Europe and Asia. All these also caused a shift in
agriculture. In all, we know that the devastating effects of this outcome might be very
outrageous. But his work ended without the absence of propositions upon how to help face
these problems.

We possibly cannot talk about climate change without citing the cognitive and
scientific article of Michel Ruimy in ‘Sauver la Planete, nouveau role des Etas’? In this his
didactic piece of work, Michel portrays the climate problem as an economic problem in which
way he outline the climate problem as closely linked to the economy of states. He therefore
went ahead to stipulate that states have defined roles to play in search for a climate solution.
He placed the states as major argent in search for sustainable development. The introduction
of the notion of sustainable development was defined in the Brundtland report of 1987 as, a
development which responds to the needs of the present without necessarily compromising
the capacity of the future generations to respond to theirs.46 States economic enhancement

45
Page 226, WHAT THE KYOTO PROTOCOL WOULD DO
46
‘Sauver la planete, nouveau role des Etas?’ no 56 diexeme trimester 2007, societe
d’etude, de recherché et de publications economiques (SERPE) 29, rue de Lisbonne
75008 Paris….

Tout d’abord, l’introduction de la notion de ‘developpement durable’; celui-ci a ete define

dans le rapport de Brundtland (1987) comme ‘ un developpement qui repond aux besoins
du present sans compromettre la capacite des generations futures a repondre aux leurs’

19
should be carried out without necessarily polluting the ecosystem. In this manner a free
pollution atmosphere will constitute riches, as Michel puts it ‘le fait d’etre sous-pollueur
constitue une richesse virtuelle’47. States should therefore take up to the propositions of
certain climate and economic experts upon finding other means to creating energy for their
industries rather than burning up fossil fuels. States should be at the forefront in search for
pollution free atmosphere. Knowing fully well that there is a very large uncertainty
surrounding environmental questions, it is very instructive for us to always consider the
economy however. Still, this must be done while guaranteeing equity and justice
intergenerational. The climate problem is purely intergenerational in nature note should be
taken.it was at this point that Michel postulates that the questions about the environment is not
the problems faced by it but the solutions attached to it. Humans to him, only react when they
are scared and have seen physical ramifications. The idea that some climatologist have is that
may be and maybe not there might be ‘climatic dictatorship’ someday if care is not taken. It is
therefore worthwhile for a break in logical confrontations and gives places for more
corporative comportment.

Subsequently, another very pragmatic piece of art is that of an eminent

environmentalist called Herve Kempf in his article ‘La crise ecologique; une question de
justice48. There is no doubt that the ecological crises have taken a considerable attention of all
actors of international relations these recent years. Many, if not, all subjects under
international law have taken a considerable loom at the ecological problems. This can be
proven looking back at the Copenhagen summit in December 2009, where numerous heads of
states and government were present. This ecological crises as denounced by Herve, was
aggravated by the formidable economic expansion of emerging countries like China which
came to be added to the ones already done by the developed countries. However, the
ecological crises turn to affect the third world countries the most, even though they are not
responsible for the emissions. This article pose therefore, in a crucial manner the question of
equity in a world faced with a unique problem. But the article however, failed in that it did
not actually outline the measures and processes that will help canalise states into handling
both their economies and the ecosystem crises contemporaneously. They at least would have
set forth such measures. And more to this, they did not actually table the problem that hinders

47
Michel Ruimy Societal – le marche des droits a polluer
48
Defense nationale ‘ la crise ecologique; une questioned justice’ no 727, fevrier 2010
Ecole Militaire 1, place Joffre BP 8607, 75325 Paris cedex 07

20
the application of environmental dispositions to combat climate change. What is actually the
raison d’etre why these principles and laws are not created?

STATEMENT OF RESEARCH PROBLEM

Ever since the 1972 Stockholm conference on Human and the Environment that led to
the creation of the United Nations Environmental Programme (UNEP), ever since the
Brundtland commission report, Our Common Future in 1987 with the discovery of the
stratospheric ‘ozone hole’ which led to the publication of the World Commission on
Environment and Development, ever since the 1992 United Nations conference on
Environment and Development which led to the adoption of the United Nations Framework
Convention on Climate Change, ever since the creation of the key stone environmental
document – the Kyoto Protocol in 1997 and which only came into force in 2005, and also the
holding of several environmental seminar sessions like the December 2009, Copenhagen
conference in Denmark and the Borne conference in Germany coupled with the prospects for
Cancun in Mexico, multiple initiatives and dispositions have been created. All these
dispositions were created in an implied way to enhance sustainable development. They were
all created to project a new mode for the realisation of sustainable development and economic
aggrandisement simultaneously.

How then have these dispositions been effectively applied to achieve the very reasons
for which they were created, that is, how have these dispositions been effectively applied to
enhance the numerous questions of climate change for which they were mobilised? For
instance how have they been managed to efficiently curb or better still, reduce the
concentration of greenhouse gases in the atmosphere to enhance sustainable development?
The notion of sustainable development is closely link to economic growth, and sustainable
development as defined by Brundtland report of 1987, is providing the needs of the present
without necessarily affecting the future, so can these climatic dispositions assures the
economic development of states, all at the same time guaranteeing the preservation and
conservation of the environments or better still, the ecosystem in the long run? In order to
explore international efforts to define collaborative strategies to address phenomena of a truly

21
global magnitude, let’s base our interest on the available text and institutions. Which
institutions are already in place? What text guides climatic problems and why are they not
been applied effectively? What is the interest of the various protagonists? These are some of
the questions we will be analysing.

HYPOTHESIS

To Madeleine Grawitz ‘l’hypothese est une proposition de reponse a la question

posee, elle tend a formuler une relation entre des faits significatifs’49. We are therefore been
posed a question or series of questions in our problematic which is analysing the reasons why
environmental dispositions are not been applied effectively to combat climate change. What is
the problem? It should be noted that if these dispositions contribute to the realisation of
preserving the ecosystem while at the same time enhancing economic growth, then we cannot
deny the fact that there are certain stages whose effectiveness have to be impose and this will
subsequently, help to efficiently apply climatic provisions. In this light, application of climatic
dispositions can be seen at three stages. The first stage dates back to the preindustrial period
of the developed countries. During this period mass extraction of the African and Asian forest
was the main deal of these countries. They fell down trees and timbers for the reconstruction
of their war torn cities, and also for the construction of ships and other transportation means.
Even though to a lesser extent, some of these industrialised countries still hunt for these raw
materials from the third world countries. Preservation first of all of our forest and the entire
continent will be very helpful for the application of climatic dispositions. These extractions
during the decolonisation period of Africa have been very detrimental to the general public.
The second stage is at the level of the judicial systems of states, where we observe that the
normative, institutional and jurisdictional environmental dispositions are always present, but
rarely ineffective as to what concerns their application. It is actually the problem of
l’effectivite du droit’. It is very obvious that if states cannot apply just national legislations,
then it’s not internationally ratified treaties they will. And the last stage is at the level of the
economy coupled with the advent of the emerging economies. These emerging countries use
more fossil fuel to generate energy meant for their industries; to them it is a ‘ressource

49
Madeleine Grawitz, Methodes de sciences sociales, 11 edition, Paris, Dalloz, 2001,
P.398

22
vitales’. They as well don’t want any infringement in their sovereignty and at this stage they
will really need to cut down on their use of fossil fuels as a source for their energy.

RESEARCH METHOD

Method is a logical procedure by which one wants to intrude in a domain of reality,

before writing, explaining and understanding. Method in a scientific piece places us to an
explicative procedure, which canalise us to get to discover pertinent issues of reality. In other
words research method constitute an intellectual operation by which a discipline searches the
truth that its follows and verifies50. To some others, a methodological procedure assures a
scientific work; in fact, method clarifies the hypothesis and determines the conclusion of a
scientific piece of work.51

Having understood what method is, it’s worth noting that the character of our study
will highly determine the method of our work. At this point we will be using juridical
analyses to examine the key factors and instruments to guarantee the effective application of
environmental dispositions to combat climate change. The role of the jurist is searching to
know the rule and its criticisms in relation to the reality of social environment 52. It is at this
point we study the juridical text and the context of soft law to gracefully analyse the problem
faced by climatic dispositions to combat climate change. The main idea to ameliorate and
reconstruct the various existing text and institutions respectively that were mobilise to solve
the problem of ineffectiveness of climatic dispositions. So it will be very instructive for us to
identify and interpret the text in question and try to determine if it accomplishes the very
reason for which it was created or intended.

However, in as much as this scientific piece will be dominated by juridical analyses, it

is very important to note that other differentiated themes may pop up. So in as much as we are
50
Madeleine Grawitz, Methodes des science social
51
Pr. Maurice Kamto, ‘ la demarche methodologique conditionne le travail scientific, car
la method eclaire les hypotheses et determine les conclusion’
52
Pr. Maurice Kamto ‘chercher a comprender la regle telle qu’elle est et de la critiquers’il
le faut, au regard de la realite de l’environnement social’

23
taking a juridical standpoint, we should expect the occurrence of other themes of a purely
transnational nature.

THEORITICAL FRAMEWORK

Theories are of utmost importance when it comes to analysing and explanation certain
issues of international relations. In this predominant paragraphs therefore, we will sought
throughout to show how theories of international relations and social science methodologies
helps us to understand the reluctant responds by various countries to the challenge of climate
change. One of the most vital purposes of these theories is to explore the contribution that
different ‘classical theories’ of international relations can help to formulate our understanding
and comprehension of International Corporation of global climate change. More specifically,
the four approaches that have predominated in the in the post-World War II international
relations discipline will be examine. The origins, key elements, and representative works of
each will be identified and how they canalise the international debate of climate change.

Our first illustrative theory will be realism and neorealism respectively. For many
practitioners of international relations, and within much of the academic discipline as well, the
most influential approach during the first quarter century after World War II was ‘realism’.
Realism arose after the perceived failure after the policy of appeasement (and idealism)
during the 1920s and 1930s53, the realist argued that the international society was anarchical54,
been dominated by individual states that were each striving to maximise their own power and
security. Because of the fact that these states were busy towards conflict and competition,
International Corporation will always prove elusive, even when the potential benefits of such
corporation were universally recognised. At this time they instead seek for alliances55.

Still, during the past two decades ‘neorealist’ have adopted the traditional assumptions
of realism56. However, this ‘neorealist’ has shifted the traditional realist aspect of security to
international political economy. Even though still very pessimistic about the aspect of
53
Edward H.Carr 1983
54
Hedley Bull 1977
55
See Hans Morgenthau
56
See Keohane 1986; Waltz 1979

24
International Corporation, they have however argued that international corporation can only
be possible if preponderance of power exist which will be ‘hegemon’57. Now applied to the
climate change issue, an international relations neorealist would look to the distribution of
power among the world states in order to assess the prospects for corporation. Given the
nature of the climate change issue, however, it is difficult to ascertain the most appropriate
measures of power. Certainly, the possession of military strength could still be relevant even
though not very absolute. In this light, one actor might be able to issue threats and cajole the
other in changing its activities that greatly contribute to climate change. Similarly, ‘power’
defined in economic terms, could well be pertinent; one major actor might take trade
sanctions against a ‘climate violator’.58 But now the question is does neorealism explain the
course of the climate change negotiations to date and also do they really exist a hegemon on
this issue? There actually exist a hegemon but this hegemon which is the United States
actively participates in the actual emissions. However, we cannot but affirm that there are
certainly instances where the apparent preferences of the United States have been reflected in
international agreements. Perhaps the best illustration comes from the negotiations leading up
to the agreement of the Framework Convention on Climate Change (FCCC) in 1992. But this
theory of international relations expels other nation-states actors to participate in the climate
problem, let alone that of non-state actors59.

The third and fourth general approach has not attracted much in the field of
international relations particularly within the United States. Amongst other things, ‘historical
materialism’ and ‘neo-Marxism’ comprise of diverse actors and ideas60. Most of the authors
here however concentrate on economic relations within a global and historical context. They
agree that patterns of International Corporation can be achieved by regrouping the most
powerful actors within the capitalist world61. This might certainly not work because the vast
difference of wealth between the countries of the industrialised North and those of the less

57
Gilpin 1975; kindleberger 1973 this actor is identified as the ‘hegemon’ and the broader
idea is labeled ‘hegemonic stability theory’ by Keohane 1980
58
This has already occurred on other environmental issues, for trade restrictions are key
components of three major international agreements (Montreal Protocol, Basle
Convention, and the convention on international trade in endangered Species of flora and
Fauna; see chapter 13 of ‘Classical theories of international relations’ by Ian H. Rowlands
59
See chapter 5 in this volume
60
For relevant reviews, see Brown 1985 and Smith 1994
61
Amin et al. 1982

25
industrialised South nevertheless mean that international corporation will concentrate on the
former. The dependency theory also highlights the fact that the Northern exploitation and
domination of the South have continued in the ‘post-colonial period’. Compared to the
colonial times, the only difference is that political domination has now been replaced by
economic influence. What expectations on global climate change would be generated by
historical materialism approaches? In this light, we will be expecting capital to advance an
international agreement. Drawing form the works of dependency theory, we would expect
some North-South tensions to exit on global climate change, though we would also expect
some agreement between core elites in North and South. Conclusively, the aforementioned
reviews the state of knowledge with respect to the ways international corporation on climate
change might ensue. To this end, brief synopses of the major approaches within the
international relations have been presented. Each of the four perspectives seems to be able to
offer some explanation as to the developments to date of the international negotiations on
climate change. They all have help in structuring and analysing the dictates of climate change
dispositions.

All in all, over the past two decades, global climate change has developed from a
concern of scientific community into a major agenda item for policy makers. Global climate
change is perhaps a model case of global environmental problems, given those anthropogenic
and natural emissions around the world, regardless of location, contributes to the alteration of
the earth’s atmosphere. Therefore, the response must also be global, even though the effects
of such change vary by region. So far, despite the growing recognition of the importance of
the problem, the international climate change regime is still under construction. To my point
of view it cannot compare with effectiveness with other environmental regimes, such as the
Vienna convention on the protection of the Ozone layer and the Montreal protocol that
followed in 1987. Unlike the climate change regime, the ozone regime contains binding
obligations for most states and benefits from the support of international consensus. Such a
consensus has not yet been achieved with climate change. Acknowledging the fact that there
seem to be reason advance for the lack of this consensus, it will be very instructive to make
mention of the fact that these reason no matter what, can be adjusted by the international
community.

26
 PLAN OF WORK

Our plan of work will simply be unravelling the chronology of our thesis. This plan of work
will elaborate in details the specific and general point of views of our topic. At the end, we
will be enumerating the plan below.

PART ONE; The causes of ineffectiveness

Chapter one; the economic causes

Section one; confrontation between preservation of the environment and other exigencies

Paragraph; Confrontations between Sustainable Development and the Preservation of the

Environment

A Misconception of the idea of ‘preservation of the environment’

B The Need for Sustainable Development

27
Section two; Industralisation as a Preponderant factor of Ineffectiveness

Paragraph; the Confrontation between Industrialisation and the Preservation of the

Environment

A) There was the urgent need for Industrialisation and development.

B) Lack of concern and purported interest over environmental issues.

Chapter two; the political cause’s ineffectiveness

Section one; major political instruments as setbacks for climate regime

Paragraph; Sovereignty and Lack of Binding Rules as Major Obstacles towards Climate
Change Dispositions

A) Rights of sovereignty as an obstacles towards climatic regime.

B) Absence of an objective binding legal instrument to foster climatic governance.

Section two; absence of credibility of environmental law

Paragraph; Normative qualities of environmental laws

A) Non-Legitimisation of Environmental Norms

B) Environmental norms are non-conventional in nature.

Conclusion

PART TWO; The implications of ineffectiveness

Chapter one; the effects of ineffectiveness

Section one; short and long term consequences of climate change as result of ineffectiveness

Paragraph; The immediate impacts of Climate Change as a result of ineffectiveness of

environmental dispositions

A) Economic potentials of developing states are at risk

B) Socio-political consequences are highly visible

Section two; the long term impacts of climate change as a result of ineffectiveness

28
Paragraph; Questioning the principles of sustainability- sustainable development and inter
and intra-generational equity.

A) The very motive for sustainable development will be defeated.

B) Sustainable principle of inter and intra-generational is been killed

Chapter two; propositions

Section one;

Paragraph; Advanced proposition to help ameliorate the environmental pandemic

A) Permanent Sovereignty to Flexible or Dynamic Sovereignty

B) Some other strategy for environmental sustainability.

Section two; other forms of propositions

Paragraph; the Necessary Conciliation between Necessity of Development and the

Exigencies of Environmental Preservation

A) Compliance mechanisms must be put in place

B) Enforcement and implementation policies must be effective

Conclusion

General conclusion

29
PART ONE; THE CAUSES OF INEFFECTIVENESS.

It is clear that several major issues are competing with each other for international attention.
These competitions went up to the extent that the post-world war II international system was
associated with security problems arising from the psychological or cold war. Another theme
that preoccupied international system during this era was the questions of economic growth or
trade liberalisation following the reconstruction of Europe and Asia. At this time the
international scenario did not look at international environmental problems as a point of
interest. In effect, international climate change problem were not seriously considered. But
things started to change with the advent of the détente in the 1970 and the realisation that the
unprecedented period of economic and population growth that had occurred since the 1950s
have led to major environmental problems. It was during this time that a minute concern for
environmental problems started hitting the world even though it was not absolutely universal.
The orientation was not universal it remained only at a particular part of the world. Moreover,
political emphasis was placed more on local, if not regional pollution problems.62 It was only
62
The 1972 Stockholm conference on the Human Environment was largely concerned
local environmental issues involving several countries situated in a common geographical

30
after the 1980s that global environmental issues like depletion of the ozone layer, climate
change and biodiversity loss came to the forefront of the international agenda. The end of the
cold war and the reduce importance of international security helped to move the world
towards addressing global international environmental issues and sustainable development,
two themes, that were largely emphasised at the United Nations Conference on Environment
and Development (UNCED) at Rio de Janeiro an important thing that surrounds the Rio
agenda was the signing of the FCCC.

Talking about the Rio Conference, it was initially meant to cover environmental problems and
note should be taken this institutive the conference even though the reason for which it was
created was defeated it became the very first initiative for the call for international corporation
to combat climate change. Amongst other things, the conference advocated for sustainable
development and it also addressed the problem of global climate change. Amongst other
environmental conferences, the Conference at Rio de Janiero in 1992 was the first major
landmark of all climate change regimes.it was at this stage that the significance of climate
change became probable and started interfering into the affairs of international actors. An
important item on the Rio agenda was the signing of the FCCC and this treaty has evolved
since 1992. The most vital development was the elaboration and signing by major countries of
the Kyoto protocol in 1997. Whereas the FCCC treaty imposes a general framework without
any well- specified obligations, the Kyoto protocol enumerates a series of goals and
instruments to achieve them by setting binding rules on industrialised (Annex B) countries.
Discussing about the applications and implementation of the Kyoto protocol has already
generated two new rounds of negotiations in Buenos Aires (1998), Bonn (1999), and The
Hague (2000). We however cannot but affirm the fact that the litany of the global climate
change hazards has become very familiar and the so called ‘protective document’ that
regulates the latter problems has not been effectively applied enough to contain the trouble.
Both the context and from of application were channelled wrongly. We will in this sphere,
take a look at an appreciative point of view to determine how much contribution the Kyoto
protocol has been to the climate change issues at hand.

Global warming as note should be taken is hardly the only environmental hazard, but in many
countries, if not all, it is rising high as a policy priority for which we think is very justifiable.
Most definitely, the growing consensus for action has made the world to design an effective
challenge for policy response. It was in this light that the earth summit was held in Rio in

area, such as a particular river basin, lake, a confined sea or coastal area.

31
1992 were diplomats adopted the framework convention on climate change. The convention
interpreted the international laws of climate change to its own limited level. Then, five years
later, diplomats completed the Kyoto protocol which initially sets targets and time tables for
38 nations to control emissions of greenhouse gases. In almost about a decade these very
diplomats and other actors of international relations acting under the auspices of international
law are were found ‘still’ trying to work out cognitive rules and other crucial issues that were
left vague in the Kyoto. If in somewhat ‘miracle’ they finally reach to a consensus, then it
must be said that legislatures in the industrialised countries must then decide to whether to
ratify commitments made in the Kyoto or not. This of course will mean imposing on certain
industrialise countries to regularise and cut back on their productive economic measures. The
international treaty, in other words the Kyoto protocol has not only proven incapable but
likewise ineffective. It is at this point that we question the effectiveness of international law
(l’effectivite du droit). Evidently then, the effects of the non-compliance of the Kyoto
protocol indicates the need for clear thinking about the effectiveness of international treaties
as devices for regulating behaviour. The limited influence Kyoto has accorded to the
international climate change issue requires therefore a more careful design of make the levers
of international law be recognised. It is at this time that we look up to the process of
‘legalization’ in international affairs which is the focus of a fruitful collaboration between the
international actors with their national laws. From the above analysis we cannot deny that
reason for which Kyoto was created has been defeated.

The bond of contention will not be actually to determine if Kyoto has failed or not,
the issue will be to determine what can be accountable for these failure. It will be our position
to try as much as possible analyse and interpret the economic and political causes of climate
change. Talking about the economy, how it affects climate change will be very instructive and
weighty. Let’s start with the economic factors of climate change. We all know that developing
countries will need to burn their by-products to create energy for their productive industries
and its only when they do this that they can have access to the world’s competitive markets. It
is the burning of these fossil fuel raw materials that go to concentrate the biosphere and hence,
global climate change emanates. So halting the spread of carbon dioxide in the atmosphere
will indirectly mean stopping the growth of the world’s economy, how contradictory this can
be. Turning these economies around to comply to somewhat Kyoto limits would require a
costly crash program. At this point to catch up and comply with the Kyoto protocol limits by
2012 would require imposing substantial, politically unrealisable, cost on their economies.

32
For example, in the United States compliance to the Kyoto protocol would mean or require a
herculean effort. By the end of 1999, US emissions had risen about 12% above 1990 levels
and were on track to rise another 10% by 2008. Yet the Kyoto protocol requires a 7% cut
below 1990 levels in total, about a 30% cut. So turning the economy around to meet the
Kyoto targets could cost over $1000 per household per year. 63 The scenario becomes worst
when developing countries are called upon to take part in the solution problem of the climate
change effects, knowing fully well they are not the principal causes of these climatic
problems but however statistics have proven that in three decades they will topple the
emission rates of developed countries. Substantially, emissions vary with the economic
growth, so the more a countries boom is recorded so too is her emission increasing. The
factual question is if growing and prosperity economies are the back bone of sustainable
development as promulgated by the 1992 Rio conference on Development, how then can we
attempt to stop or halt our industries sources of energy and expect to have booming
economies which comes with sustainable development? How can we carry on with our
economic activities while at the same time preserving our environment? In fact the trickiest
question lies in the fact that how can we reconcile these two notions of international relations-
that is growing economies and sustainable development?

After having analysed all these it will be instructive for us realised that despite all
these stages that were incurred for the eradication of climatic effects we still noticed that there
have been very little or no success in relation to the effectiveness and compliance in this
domain. It will be in the light of writing this dissertation that look at the causes of
ineffectiveness in the two preceding chapters. The first chapter will be analysing the
economic causes of climate change which is subdivided into two sections - the first will be
evaluating the confrontations between the development and the preservation of the ecosystem
and the second will be the confrontation between the industrialised north and the preservation
of the environment.

While chapter two will be talking about the political causes of climate change and this chapter
just as the first will be further subdivided into two sections. The first section will be talking
about the rigid sovereignty put forth which have greatly hindered the smooth application of
environmental dispositions whereas the second section will analysing the problem of
legitimisation of climatic norms that roam in the international scenario.

63
The Collapse of the Kyoto Protocol and the struggle to slow global warming; A Council
on Foreign Relations Book Princeton university press 41 Williams street

33
CHAPTER ONE; ECONOMIC CAUSES OF CLIMATE CHANGE

The depletion of the stratospheric ozone is mainly caused by industrial chlorofluorocarbons

(CFCs)64 and hexafluorocarbons (hFCs) and all these perhaps illustrates that human activities
are the prime factors of climatic changes. Ironically, these emissions of chlorofluorocarbons
per fluorocarbons are largely emitted through the economic process of productivity but they
are the same carbon dioxide that goes to concentrate the biosphere. CFCs are released
predominantly from the Northern Hemisphere and yet the most striking effects of their release
occur over the South Pole65. In effect what we are saying is that the industrialise economies
are directly and highly in relation to the developing nations responsible for the outcome of the
climate change issue. And also they will do everything to protect their economies no matter
what the cost of protection can be. For example previous research into the oil crises of the
1970s led to the conclusion that industrialised countries had sufficient resilience to resist
64
This was the main reason why the Montreal protocol on substances ‘That Deplete the
Ozone Layer’ was held. This convention objective was to struggle for the preservation of
the global environment. This protocol not only provides example of science in the service
of public interest but sets a very important precedent that demonstrates the different
sectors of the society (scientist, industry people, policymakers, and environmentalist) can
work together and be very productive by functioning in a collaborative rather than in an
adversarial mode. And that it cannot be solved without the active participation of all the
countries of the world most importantly.
65
Leroy-Ladurie 1971; Parry 1990; Rosen Zweig et al. 1993

34
profound shocks to their economic systems66. Climate change is thus expected to exacerbate
the differences between developing and developed countries’ welfare and this may have the
consequences of increasing migratory tendencies. Still, if this aid migration occurs on a
massive scale to more advance regions this economic development will likely lead to both
absolute and per capita increases of greenhouses gas emissions in industrialised regions. In
conclusion climate change is likely to lead to a more fragile and overused resource base
migratory pressure67. In effect that we are implying is that economic variations have greatly
contributed to the unstable nature of climate change even though all of them emanates from
human activities. But this does not suffice because man is part of his environment and has to
take the initiative to protect it from harmful resources.

From the above there is no doubt that there are the human activities that produce local
emissions of greenhouse gases. The mixing of these gases in the atmosphere is so thorough
that they are believed to contribute to the changes in our climate. In this light there is no
priority relationship between knowing who has the most economic activities that have led to
these changes but how to ultimately reduce the activities that have led to these changes or
better still, find some other substitutive measures to carry out these economic activities. It was
in this light that Garrett Hardin’s in 1968 established a descriptive phrase to climate change as
‘the tragedy of the commons’. The time has passed for blames to be attached to some country
or region, let’s all work collectively to handle the climate problem.

The main objective of the United Nations Framework Convention on Climate Change
(FCCC) of 1992 is to ensure that current populations of the world and future generations will
live under climate conditions that permit sustainable social and economic development. There
is no doubt that there is somewhat clarification that has to be made between sustainable
development was can only be realised through massive economic activities and preservation
of the environment. These are two notions that will cover our preceding sections as we
continue. We are not however, saying that only commercial industries do emits these
substances in the atmosphere but it’s largely caused by it. And it’s these industrious waste that
have made us to start observing the changes in our climate so therefore much attention has to
be placed on them. Within the debate of the climate change context distributive inequities are
noted between the developed and the developing countries.it is between these two groups (we
will see momentarily that the mere fact of categorization is in itself a problematic) that the
66
Luterbacher et al. 1978
67
See Kuhn, Weigandt, and Luterbacher 1992; Luterbacher and Weigandt 1991, 1994

35
greatest differences about the appropriateness of certain allocations are observed. Developing
countries note that most environmental damage, certainly global warming results from
practices occurring predominantly by the industrialised or developed countries. And yet they
also fear that imposing limits on their emissions through the reduction of population growth
will impede their social and economic development. In the meantime, developed countries are
urging that for the sake of the future generations all nations must be active participants in
finding a solution to this problem. Even though another sharpening differences between North
and South is the evaluation of impacts of and vulnerability to the potential consequences of
climate change, they still are very adamant to change their views. Since the developing
countries are still so tired to carrying on with their developmental plans, how then will the
climate regime come to a unique document fighting for a common course? Similarly,
political positions in the developing world makes equally clear the perception- the current
problem is largely the responsibility of the industrialised countries and so compensatory
provisions must be instituted in any negotiated document. It was in this light that both in the
FCCC and the Kyoto protocol, developing countries resisted any commitment to limit their
greenhouses gas emissions, arguing that they are not responsible for creating the climate
change problem and they claim that they had other priorities, most importantly economic
development. As earlier mentioned however, industrialise countries in general and the United
States in particular termed the climate change notion as a ‘common concern of mankind68’ and
unless the developing-country emissions is contained they can be no solution to the climate
change problem. Thus, a continuing theme that keeps arising in the climate change debate is
that of ‘meaningful participation’ of developing countries in particular , namely, whether they
should assume ‘voluntary commitments’ to limit their greenhouse gas emissions for example,
by joining Annex I of the FCCC or Annex B of the Kyoto protocol.

All along we have been talking about developing countries not wanting to compromise
their economic activities just because of the mere fact that if they have to follow the Kyoto
protocol or the FCCC Annex I, they will lose not attaining sustainable development. The
question now is how we can attempt to reconcile the confrontations between sustainable
developments while at the same time sticking unto the notion of ‘preservation of the
environment’. In this light we will proceed to our section one of this scientific piece which of
course carries the details.

68
This is one of the very fundamental principles of the FCCC document in relation to
climate change. Article 3, describes the climate change problem as ‘common concern of
mankind’

36
SECTION I.

CONFRONTATION BETWWEEN PRESERVATION OF THE ENVIRONMENT AND

OTHER EXIGENCIES

The economic reasons that have rendered climatic dispositions not to be effective, hence
causes of ineffectiveness will be examined below. In the first paragraph we will be looking at
the confrontations between the major economic countries or countries with economies in
transition, in the light of their growing economies. They have been a point of conflict between
preserving the ecosystem and carrying out their economic activities because these economic
activities are directly affecting the ecosystems. So in the first paragraph we will be analysing
how because of this phobia to grow economically, developing countries have turned to ignore
the necessary climatic dispositions.

Paragraph

Confrontations between Sustainable Development and the Preservation of the

Environment

Countries with economies in transition (CEIT) and the developing countries have vehemently
denounced the idea of compromising their economic activities for a common climate change
problem. And note that, they are the uprising causes of the economic activity’s that perturb
our climate system. Now they are the same people not wanting to comply to either the FCCC
Annex I or the Kyoto protocol Annex B to reduce their emissions. However acknowledging
that these massive economic activities at the same time damages the environment and keeps
the entire scope in total peril they still don’t want to comply. Now these two notions that
circles the thoughts and aspects of the world in general and the developing world in particular,
it will be very instructive for us to subjectively analyse each of these notions as to their true
meanings in relations to international law. We will in effect, first of all take a deep look at the
meaning of the notion of sustainable development while at the same time matching it to that
of the notion of ‘ preservation of the environment’.

37
 A

Misconception of the idea of ‘preservation of the environment’

Many industrialised countries have misconstrued the very meaning of preservation

of the forest and have taken it to mean something else. And more so, the international efforts
towards protecting the forest have been very slow mainly because of the need to grow
economically. In the light of this paragraph we will first of all identify the very brief history
of preservation of the forest and also try to explore the true meaning of preservation of the
forest. It will be in this light that we will be able to determine the misconstrued idea of
preservation of the forest.

Partially parallel to the negotiations on the Framework Convention on Climate Change

(FCCC), the Convention on Biological Diversity (CBD) was negotiated and formulated and
later signed at the UNCED. The underlying environmental problem is, efforts towards the
preservation of richness in species flora and fauna. Subsequently, the consequences of climate
changes in the world can affect species both plants and animals, as it was estimated that 1 and
11% of species have or will become extinct per decade during the period of 1975 to 2015. 69
We should note that attempts at the regulation of biodiversity arose only with the beginning of
the 20th century and during this period of its orientation; only agreements covering particular
species or regions have been concluded. The biodiversity regimes have had a very short
history in terms evaluating rules pertaining to its protection. A brief history of some of its
illustrative attempts might suffice. Backed by the Reagan administration in 1987 in the U.S
for example, the UNED governing council created an ad hoc group of experts to explore the
opportunities for a global framework.70 Subsequently as in the case of FCCC, an
intergovernmental negotiating committee successfully prepared the Convention on Biological
Diversity (CBD) after only five sessions during the 1991 to the 1992 and only presented the
CBD for signature of the UNCED conference in 1992. And it laid down the following
objectives; the “Convention of Biological Diversity as one, the sustainable use its component
69
World Resource Institute 1996, pages 247 to 248, see also the German Scientific
Advisory Council on Global environmental change has estimated that 10 to 15 percent of
species are at risk of extinction during the next fifty years which is approximately 1000 to
10000 times the natural rate of extinction (WBGU), 1996.
70
Victor and Raustiala 1996, page 18, the Bush administration took a different stance on
biodiversity by refusing to sign an agreement. As of Nov. 2000, the US has neither signed
nor ratify the CBD

38
(components of the forest) as two and lastly, the fair and equitable sharing of the benefits
arising out of the utilization of its resources.”71 Having seen a brief history of the biodiversity
regulating attempts, we will now proceed to spell out exactly what we refer to as biodiversity.
The word “biodiversity” in context will mean the world’s forest. Roughly 40% of the earth’s
land is covered by forest and wooded land. While they are local or regional in scope, they also
provide for especially species-rich habitats, and natural forests, like those of the pacific North-
West of America or tropical forests, are at the particular risk. 72 In addition, forests are the
basis for fuel, wood and commercial forest-related products, but fuel also serves social and
cultural purposes of indigenous and local communities. Moreover, they act as a sink for
carbon dioxide commissions. It should be noted that despite these manifold function of our
forest and the fact that it provides for export revenues to some developing countries, the
world’s forest coverage is in deep decline.73

During this period from 1981 to 1990, Latin America, Asia, and Africa combined 9%
of their forest area74. Despite the importance of the biodiversity regime, the preservation and
sustainable use of the earth’s forest have not yet been globally regulated. Early attempts of the
CBD did not launch a work program on forest maintenance and this was partially due to peer
pressure from timber producing companies or countries, which feared the impact of legally
binding obligations and as a result of lack of clarity as to which UN institution is in charge of
forest. Thus the CBD failed to become the global regime in charge of preservation of the
world forest by means of protocols75. In as much as the CBD recorded some negativity in its
regime, at least she had some positive effects as far as preserving the forest is concerned. The
CBD adopted a program for forest biodiversity at the fourth Conference of Parties. Moreover,
71
CBD article 1, the text of the CBD can be found at
http;www.biodiv.org/chm/conv/art1.htm ( July 7, 2000)
72
World Resource Institute 1996, pages 203
73
It has been estimated that by the early 1990s, about 40% of the earth’s land surface
has been converted from forest and grasslands to cropland and permanent pasture.
World Resource Institute 1996, pages 201. Comparing the Global Climate Change Regime
with other Global Accords by Detlef F Sprinz
74
Committee for National Institute for the environment. http;/www.cnei.org/nle/for-
4html#CONTENT (December11, 1998.
75
McNeely, Rojas and Martinet 1995, page 36 the German Scientific Advisory Council on
Global Change suggest that this option be pursued ( German Advisory Council on Global
Change (WBGU) 1996, pages 178 to 182

39
this didactic organ instituted some salient and impressive boards which were meant to
regulate the sustainable use and preservations of tropical forests within the world. Some of
these regulatory organs created were the International Tropical Timber Agreement (ITTA)
and the International Tropical Timber Agreement Organization (ITTOA) since the 1980’s,
and the dispute about whether to protect forest comprehensively or to regulate their economic
use has led to a “Non-Legally Binding Authoritative statement of principles for a global
consensus on the management, conservation and sustainable development of all types of
forests” on the occasion of UNCED in 1992. Since then, the diplomatic process leading up to
the attempts to arrive at a global regime on forest preservation has been landed to the
Intergovernmental Panel on Forest (IBF) in 1995. Following the reluctance of the IPF on this
issue, work of the former was continued by the Intergovernmental Forum on Forest (IFF).
Because of the importance of our forest, its regulation falls in between the domains of the
CBD (ecosystem function), the FCCC (carbon sequestration), the UNCED (land degradation),
the WTO (trade), the ITTO and the Food and Agricultural Development (FAO). To this, we
can affirm that authorities of the forest and its preservation have been dispersed. In view of
the institutional history to promote sustainable forest, the UNECOSOC has established United
Nations Forum on Forest to continue the work of the IPF and IFF at a politically elevated
level.

Talking about sustainable forest, in other words preservations of the forest is actually
what captivates our attention. As per the CBD in its article 1 of the protocol, the objectives is
“to contribute to ensuring an adequate level of protection in the field of the safe transfer,
handling and use of living modified organisms resulting from modern biotechnology that may
have adverse effects on the conservation and sustainable use of biodiversity, taking into
account risk of human health, and specifically focusing on trans boundary movements” 76. It is
in this light that the notion of environmental preservation is meant. And it is to this principle
that both developed and developing countries have to operate to render and enhance
sustainable development. They must ensure sustainable forest use, while at the same time
acquiring sustainable development.

Talking about sustainable development, we realize that the developing nations and developed
countries defeated the very reason for which the CBD protocol was created in the course of
these economic activities. Considering the fact that the world’s continent is under a sharp
decline, the developing countries still cannot get it. They keep on exploring the rich
76
See text of the Cartagena protocol on biosafety

40
vegetation and this hampers the future generations. But before having to criticize whether or
not the developing countries exploit our biodiversity, it will be instructive for us to first of
define what is considered to them as sustainable development. To this effect, we have our sub
(ii) of section one.

B)

The Need for Sustainable Development

Our concept of environmental responsibility as we closely approach the 20th century

is based on some tenets expressed many years ago. In his 1864 classic ‘Man and Nature’,
George Perkins Marsh tells us “man can control the environment for good as well as ill”. In
this light, he is saying that in as much as the human society can construct the environment to
be suitable for habitation, so too can man damage the very environment and render it very
uncomfortable. George Perkins sees development as “wisdom lies in seeking to preserve the
balance of nature” and “the presence has an obligation, above all, to secure the welfare of the
future generations”. Still, even more recently, in this 1964 “Essays of a Humanist”, William
Huxley viewed man both as part of nature and as essentially unique. So destroying or risking
the environment will purportedly mean risking the very existence of man77. Note that not
every writer or scholar agreed on the necessity to couple development with environmental
responsibilities, in a broader sense, a concept that has come to be called “sustainable
development”. Notably, the developing countries in about a decade did not believe in this idea
or notion of “sustainable development”. They did not look at it as attached to the
environment, to some of them, they viewed the outcry of environment degradation as merely
tactics of the rich countries to keep the poor from industrializing, and some political leaders
even went as far as saying that if pollution meant having industries then they would welcome

77
Global Environmental Diplomacy; Negotiating Environmental Agreements for the world,
1973 to 1992 by Mostafa K. Tolba with Iwona Rummel Bulska Cambridge – MA August
1997, and also foreword by Mario Molina Institute Professor, Massachusetts Institute of
Technology

41
it wholeheartedly. Many of them, however succumbed, not because of the need to formulate
environmental protection principle, but because they are aware of the fatal ramifications that
are attached to the climate problem and of course that can be fall them. To this effect, after the
agreed panel of experts from both developed and developing countries were created in 1971
in Founex-Switzerland, the Stockholm conference became instrumental and clarified the link
development and the environment and suggested an approach that would enhance and
recognize the socioeconomic factors behind many environmental problems and cure the
effects by treating the causes.78

Diametrically opposed to each other are the notion of capitalism and the
environmental protection with sustainable development playing the match maker. Just as
Principle 21 has purportedly try to curtail sovereignty, sustainable tries to do for the tradeoff
between economic development and environmental protection. The notion of equity have
corrupted the capitalistic uprising which purports to uphold the principles of sustainable
development, but it’s not the same or consistent with the principles of inter and intra
generational equity. Many people are of the opinion that sustainable development be left for
the domain of lawyers, economist, ecologist and politicians but however, it will be very
derailing because this approach has a multidisciplinary character in today’s globalized world.
The genesis of sustainable development was first read in the World Conservation Strategy79
and we should note though that initially it was an economic concept with little attention to
economic growth. Seven years later, the Brundtland report exploded the notion so much so
that ‘it has been taken up by almost every international institution agency and NGO’ since its
existence.80 It was only in the Rio that for the first time economic development could be
reconciled with environmental protection- sustainable development was the agenda. For
instance principle 1 and 3 enshrine inter and intra generational equity and principle 4 brought
environmental considerations into the core of international law in terms of economic
development. The Stockholm redefined the aims of development, making a high quality life
rather than the endless acquisition of material possessions, the main anterior for success. In
this view, defining environment as the dynamic stock of physical and social resources
available at any given time for the satisfaction of human needs, and development as a
78
However, this was in contrast to the earlier technocratic approach, with its heavy
emphasis on technology.
79
(IUCN/UNEP/WWF/1980)
80
Neil Cater ; Understanding Sustainable Development, http/www.fathom.com/course/21
701763/sessionl.html

42
universal process aimed at increasing and maintaining human well-being, makes it very
evident that the issue becomes more complex. In the view of the above enumerated definitions
it is clear that environmental and developmental objectives are complementarily interlinked.
There is however some similar principles in differentiated documents that have granted legal
effects to sustainable development attached to environmental protection. The Polish
constitution in its Art 5, the Economic Community Treaty in its Art 2 and 6 and many other
European Union Directives, for example directive 2002/96/EC, 2001/42/EC, but however in
none of these documents have there been a clear cut definition of sustainable development
found. As a result there is a mass proliferation of definitions of the concept, for example
David Pearce ET all provides over 40 of them.81 Sadly, we can say that it is due to its
vagueness rather than highlighting the real environmental protection gals that the concept has
promulgated so ferociously leading to not only ineffective environmental protection but poor
realization of the much needed inter and intra generational equity.

We cannot however deny that the environment agenda must be expanded. If

development is defined as has been enumerated above, then the objectives which are to
develop the analytical and theoretical underpinnings crucial to our understanding of the
relationship between these two notions will be defeated. So in this light, our notion of
development has to take a new sphere. Thus with the Stockholm conference, a search began
for a new, more rounded concept of development related to the limits of the “natural resource
base and in which environmental considerations play a central role while still allowing
opportunities for human activity.” We cannot refute, but affirm clearly that, earlier patterns of
development were not sustainable whereas, new patterns of development are “claimed” to be
sustainable. This without any fear of contradiction is a capital false. Although this new kind
of development has implications for both rich and poor countries and will lead to new
directions for both growth and development while in corporately the environment dimensions,
it will however take different forms in the industrialized and developing countries. That is, the
developing world in the course of this kind of new development is lacking the infrastructure
and available resources to meet the needs and aspiration of its people. Consequently, they will
continue to pursue material ends. The industrial world on the other hand must be encouraged
to value the non-physical areas of development that represents the highest level of human
achievement, educating health and other cultural pursuits.

81
David Pearce et al; Blue Print for a Green Economy; pages 173to 185 cite d in Neil
Cater. Op cit

43
 So in effect, as far as the Cocoyoc Symposium, this generation must not jeopardize the
well-being of future generations by squandering the planet’s limited resources. And those
economic and social factors were often the root causes of environmental degradation, as
patterns of wealth, income distribution and economic behavior- both within and between
countries, impeded the real course of development. The environmental development has been
the top priorities of many countries, including some in the industrialized world. Due to this
awareness, certain legislations, guidelines, principles under the UNEP have been adopted to
protect the natural environment and to canalize countries into the true meaning of “sustainable
development.”

When an environmental issue is ripe for quick international actions, but governments are not
prepared to enter into the treaty process, “soft laws” may be enacted. These are agreed upon
codes of conduct, guidelines and principles that can be put to effect without lengthy
ratification processed, and this is the more reason why these environmental accords are not
respected and allied to the latter mainly as a result of no sanctions attached to the appropriate
norms. States “free-ride” the scenario, consequently they denounce legislated norms and can
go scout-free because they are no or were no binding agreements attached to the
environmental regime at the time it was being formulated. In the process of enhancing
development, many industrialised countries exploit the environment knowing fully well the
associated risk and strong uncertainty that characterises the climate change scenario. The
economist view of the concept of “sustainable development” does not differ but tallies with
those of the environmentalist themselves. To them (economist) sustainable development is a
“non-decreasing levels of real consumption over time”, which in a broader term means that,
the aspect of intergenerational equity must be included. Therefore any development can only
be termed sustainable, if it has, and will not record any non-declining character. Sustainable
therefore requires a development process that allows for an increase in the wellbeing or
welfare of the current generation, while contemporaneously avoiding uncompensated cost-
that is, no environmental damage cost recorded for the future generations.82 In this light the
poorest country should not be affected in the future and moreover there should be a higher
probability for them to achieve a comparable level of wellbeing like the past generations. 83
The sustainability factor therefore is based on a long term perspective and preaches the
maintenance of a healthy global system.
82
The most publicized definition of sustainable development must also include an
intragenerational equity criterion(WCED, 1987)
83
Pearce, Barber and Markandya 1990

44
 Looking back to our climate problem at hand, we note that if the environment is been
affected today, it’s because of the industrial polluted waste of carbon dioxide into the
atmosphere in the past years, and these industrialised countries have been noted for claiming
to be in the quest of sustainable development. How therefore can we call it sustainable
development when the effects of their gigantic economic activities infringe in our ecosystem,
which consequently will affect future generations? For development to be sustainable, it must
incorporate the intergenerational and intra-generational equity principles, and in the latter
context it must be capable of providing sustainable livelihoods to those whose livelihoods are
primarily natural resource dependent. We therefore see that both the economic system and the
environmental systems are linked in different complex and dynamic ways.

Denying the fact that climate change will not strain economy’s capacity to achieve sustainable
development will render the argument of this scientific work very worthless. The climate
regulation will be seen imposing unpredictable and significant damage cost to the economy.
Developing economies and the industrialised country’s economies will be faced with
disproportionalities, followed by severe economic slowdowns, mostly for developed and
developing countries but this is not bad, because in the light of climate ramifications, they
(developing and less developed world) are the most vulnerable and susceptible to its pangs.
Their socio-economic systems will not support the rough ecological system at the time. Not
forgetting the fact that climate change is only one component to global environmental change,
numerous other factors are; increasing urbanisation, population growth, increasing
industrialisation and massive intensification agriculture, increasing rate of economic growth,
just to name a few. As earlier mentioned many developing countries and to a lesser extent
some regions of the north, for example, the coastal region of developed countries are already
under heavy environmental pressure and potential climate change impacts are also traceable
in their agricultural sector.

As for the climate change risk and its implication for sustainable development, it should be
noted that this is mostly portrayed at the regional levels. We can guarantee the assertion that,
it’s because of the risk associated to climate change that the very reason for sustainable
development is been defeated. The global scope of these potential changes means that there is
collection risk which affects large number of persons. Notwithstanding the economy and the
environment are two determined systems which are now very significant. The confrontation
between these two complimentary systems poses a multifaceted challenge which has to be
addressed via a collective decision-making framework operating at the both national and

45
international levels. It is time for self-interest to be buried and lost, a healthy ecosystem will
of course, a smooth economic system and a guarantee of intra-generational and
intergenerational regimes84.

SECTION TWO:

INDUSTRALISATION AS A PROPONDERANT FACTOR OF INEFFECTIVENESS

We can however say that industrialisation has been one of the main factor why countries and
other international business units have not adhere to the to the climate regime in place. It is
very sure and certain that the climate regime in place must touch the smooth functioning of
the economy of many states and other international business units. In this light we will look
at the confrontations between the need for industrialization and preservation of the
ecosystems, we will try to reconcile the situation at the end of our work but at the same time
we will demonstrate how because of industrialisation, many states have not comply to the
climate regime in place. In the preceding paragraph we will see therefore the confrontations
between industrialization and the preservation of the environment.

PARAGRAPH

The Confrontation between Industrialisation and the Preservation of the Environment

There is now an overwhelming body of scientific evidence that human activity is causing
global climate change in general and global warming in particular. The main sources of these
ecological disabilities are the greenhouses gases which emanates as a result of too much
industrialisation, electricity generation, land-use changes (most importantly deforestation),
agriculture and transport. The problem is no doubt global in its cause; greenhouse gases have
broadly the same impacts on the climate wherever and whenever in the world they are

84
Sustainable Development and Climate Change by R. Kerry Turner; Centre for Social and
Economic Research on the Global Environment University of East Anglia and University
College London

46
emitted. Many fundamental developments in recent history are closely linked to climate shifts
as we have seen in the aforementioned paragraphs.

A)

There was the urgent need for Industrialisation and development.

Industrialisation is, if not, the main causes of ineffectiveness in that, it is due to it that many
countries in the developed world have denied being loyal to the present climatic regime.
Talking about industrialisation, the period of economic growth that took place in the
international scenario after the World War II brought with it lots of industrial benefits as
following the re-birth of broken companies during the war as well as the destabilisation of
many economic pillars around the world. It was mostly felt in the industrialised world with
the war torn countries like Germany, France, Belgium, Italy, and with most countries of
Eastern Europe. This further led to the internationalisation and the acceleration of resource
movements which tremendously increased the impact of human activities on the environment.
Substantially, population growth and industrial companies emerged with desired competition
to topple the other. Population growth occurred everywhere, especially in the developing
countries or Countries with Economic Transition (CIEF), Asia and Africa, like China, India,
Brazil, Russia, Ukraine, Nigeria and South Africa for example. All these have precipitated
pressures on the environment. Now these industries needed energy for their productivity to be
constant and available to equate the uprising population. In this light, there was a grand use of
fossil fuels and fluorocarbons. Moreover, the excess burn of this fossil fuel to generate energy
has gone a long way to concentrate the ecosystem and has come with lots of impending
consequences. Also, deforestation was another aspect that greatly contributes in hampering
our environment through industrialisation. Note that, these industrialised North always
exploited and looked up to their less developed and developing South counterparts for raw
materials and resources. In the advent of this dependency, lots of forest in the developing
countries was assaulted and this killed the greening effect of the climate. This also came along

47
with increases in agricultural production considering the fact that, most organic and nutritive
agricultural products leave the South to the North. Urbanization was also another factor that
have caused in widespread effects of climate change after the WWII. All these have led to
great rise in the quantity of greenhouses gases. As a result, according to some researchers,
environmental factors have contributed to both domestic and international conflict, that these
environmental issues risk causing either war or peace as was instituted by the famous article
of Herve Kempf in his article ‘La crise ecologique; une question de justice This conflict is
basically between the industrialised North and the less developed and developing countries of
the South. Industrialisation, paradoxically has its good side and of course its bad side. Talking
about the credits of industrialisation will be singing an old song that has always been sung.
Our focus will be to determine how industrialised countries cannot meet up or satisfy the
various reasons of preserving the environment while following their principles of
development. In as much industrialisation is meant to breed urbanisation, to render a
profitable standard of living, it has come along side with its own after effects which have
forced us to question the principles of its very existence. That is questioning the reason why
development instead of bringing its purported benefits, it is instead destroying the possibilities
for the future generation to a means of livelihood.

B) Lack of concern and purported interest over environmental issues.

Interest is one major factor that has lured industrials countries to resist the climate
change regulations. May be sometimes they seem to forget that the very problems of climate
change was caused by their too much phobia for development and indutrialisation. The lack of
concerned and diverted interest of state actors have deviated the substratum of conventional
climate regimes and this have gone a long way to disabilise the entire climate system. And
moreover interest has led to the persistent evolution of economic activities in developing
countries irrespective of the risk these activities have to the environment. Most specifically,
self-interest explains the adamant nature of these industrial countries to change from emitting
by-products that destroy our ecosystems. Interest can be seen at two levels, firstly at the
national level where by domestic groups pursue their interest by pressuring the home

48
governments to adopt favourable policies, and for politicians they seek power by constructing
coalitions amongst these groups. But at the international level, seeks to maximize their own
ability to satisfy domestic wants and needs irrespective of whether or not it’s detrimental to
their environment. They do this while at the same time minimizing the adverse consequences
of foreign developments. Neither of these two illustrative aspects or limbs of interest can be
ignored by the central decision-making, so long as their countries remain independent, yet
sovereign.85 Still, national governments, mostly governments in the developing countries or in
the Countries with Economies in Transition try to institute the diplomatic policy of a ‘win set’
nature. They only seek measures how they can initiate, negotiate and apply a win-win policy
towards environmental crisis. We cannot but affirm the fact that for there to be a clear cut
solution to the environmental problem, economies of many countries will have to slow down
for some time. These economies will have to face substantial sanctions or halt their economic
growth for there to be equitable and justified solutions of climate problem. Many developing
countries rely on what they stand to gain before interpreting, ratifying and implementing
environmental dispositions. They think they have some other priorities like for example
unlike the United States and Germany; India plays a rather reactive and passive within and out
of the FCCC process. Let’s take India as an example to illustrate this point.

Due to drastic economic restructuration and construction since the 1980s climate
change ranks very low on the public file in India,86consequently public orientation on the
issue is at minimal rate and most environmental organisations are dealing with problems
rather at a local level. Only NGOs like the Centre for Science and Environment (CSE) are
even though to a lesser extent trying to systematically influence the government’s positions on
global climate change. Just because most of the energy intensive industries like steel, cement,
aluminum, fertilizers, are public owned by as a consequence of the national strategy of self-
reliance, there is little business pressure on the Indian government. With this as a result, many
of these industrial countries in general and India in particular become very unconcerned about
‘potential repercussions for future industrial activities from international agreements on
climate change’.87 It is obvious that the Indian government should know by now that
refraining from active participation during the early stage of international negotiation on the
protection of the stratospheric ozone layer, will likely have repercussions for the domestic

85
Putnam 1988 page 434
86
Kandlikar and Sagar 1997 page 16
87
Jacobsen 1998, pages 29-30

49
economy in particular and development at large. Talking about the Indian government’s
reluctance, NGOs like the Tata Energy Research Institute (TERI) and the CSE have tried to
help orient the Indian government to understand the link between global environmental
problems (and negotiations) with development and general South-North issue. Sadly, the
government has limited itself only to participate and to monitor. In fact the developing
countries interest motives for other things make them deviates from their objective reasoning
within the context of the more immediate concerns of public health, economic growth and
poverty alleviation. To this effect there is little attention to global environmental problems of
climate change. The bottom line is that these developing countries have their various interests
as to the reasons why they are not absolutely paying attention to the climatic plagues.

We can therefore draw a conclusion that industrialization has gone a long way to affect our
climate in many aspects. In deed while the principal responsibility for the production of
greenhouse gas emissions lies with the developed countries, some of the worse impacts will
befall on developing and less developed nations. This discrepancy has the potentials to
worsen existing tensions and to raise news disputes between industrialised and developing
countries and even between poorer nations themselves. It was in this light that Peter H Gleick
in his article ‘Climate Change and International Politic; Problems Facing Developing
Nations’ identifies the severe risk facing developed and developing nations from rapid climate
change and proposes actions to prevent or mitigate the worse international frictions that may
rise. If nations act today and now collectively, it may be possible to increase the time
available to understand and prevent the worse impacts, and to reduce the possibility of
international disputes and conflict.

50
CHAPTER II

THE POLITICAL CAUSES OF INEFFECTIVENESS

One thing very obvious is that the political causes of climate change have a broader
undertone. Unlike the economic causes is attached with themes like deforestation, land over
used, massive industrial activities just to name a few, the political causes on the other hand
deals with guidelines, principles and norms surrounding the aspects of international
agreements. These political causes are mostly in relations to the roles of states in the
negotiation process of international environmental law. How they implement, comply and
enforce the necessary environmental regulations and norms in the international scenario.
Unlike the socioeconomic causes of climate change, the political cause’s deals directly with
the behavioral patterns of states and other major non-state actors of international relations.
Many school of thought hold that the ineffective application of environmental norms lies in
the hands of states and their procedures put forth in interpreting internationally signed
agreements. In effect what we are insinuating is that in as much as economic causes are very
vibrant in depleting the stratospheric ozone layer, the political causes also demonstrate its
weaknesses with the same intensity if not more. In the light of this argument we will look at
the sovereign rights of states as one of the main causes of ineffective application of
environmental dispositions in general and climate change in particular in section I of chapter
Two and also at the non-legitimization of environmental norms to combat climate change in
section II of our chapter two.

SECTION I

51
MAJOR POLITICAL INSTRUMENTS AS SETBACKS FOR CLIMATE REGIME

The world’s six billion people and most of its geographical regions are divided into some 200
separate units called states. These states are sovereign in the sense that they control their
individuals, natural resources and territory subject to their jurisdiction. The concept of
sovereignty is a microscopic manifestation of private property. This concept has been
mentioned in hundreds of treaties88 which have today influence to a lesser extend the very
meaning of the word. Nevertheless, environmental problems do not care about sovereign
borders most especially when its effects wants to be manifested, consequently the strict
nation-state system of sovereignty is not compatible with environmental protection. Yet
sovereignty is the most important thing taken into consideration while drafting international
environmental laws. Not only sovereignty, we also have the problem of lack of binding rules
to govern the environmental regimes. The drafting of environmental dispositions in general
and climatic norms in particular has no universal and legally binding format. To this light, it
has no commitments force. We will therefore, in our preceding paragraph see that these two
obstacles have greatly influenced the climate regime.

Paragraph.

Sovereignty and Lack of Binding Rules as Major Obstacles towards Climate Change
Dispositions

These are two political instruments that have contributed greatly in hampering our climate
regime in place. These two areas of failures have gone a long way to lessen the strict system
of environmental law application into the international systems. These two areas will be
determined below.

A) Rights of sovereignty as an obstacles towards climatic regime.

88
See Phillip Sands, Principles of Environmental law (1995 volume I pages 187-188 for
example

52
Sovereignty can be defined scientifically as the supreme, absolute and uncontrollable power
by which an independent state is governed and from which all specific political powers are
derived, the intentional independence of a state, combined with the right and power of
regulating its internal affairs without foreign interference. In other words sovereignty is the
power of the state to do everything necessary to govern itself, such as formulating, executing
and implementing its national laws; like imposing and collecting its home taxes, making war
and peace and engaging in treaties and also initiating commence with foreign nations. In fact
it is the exclusive right of a state to exercise its powers within the boundaries of its territory.

That was the notion of sovereignty and sadly, this notion has greatly played a low key in the
application of climatic problems in the international scenario. It should be noted that states
have turn to use this notion of sovereignty to flee from collective signed international treaties
and refuse from applying them. Many states have used their sovereign rights to dissipate lots
of international treaties just because of the fact that they are aware of the fact that without
them applying the norms they will not be punished because of their sovereign rights. Because
of the strict nature of the sovereign rights of states, many people prosed that there should be a
binding rule that guarantees the application of environmental laws both into the international
scenario and the national framework of states. From time to time and perhaps even more out
of frustration than anything else, proposals like the one enumerated above – calling for a
supranational body with power to override national sovereignty have failed. They however,
do not succeed because certain countries fight desperately to maintain their individual state
rights and privileges. This is not different from environmental regulations in general and
climate change in particular in which case many countries have refused the idea of having an
overriding power over their sovereignty with a supranational character. This has been seen in
many treaties and most especially climatic treaties. Most environmental agreements in general
and climatic change agreements in particular worked out through ad hoc negotiations are
often not completed, which means that there was only the presents of the weak monitoring
and enforcement provisions that are usually taken into considerations. The main
implementation mechanisms are most often not seen which contrarily presents itself as the
important aspect of the finality of law. In effect, they let go the vital compliance and
implementation procedures that account for the successes of international law or agreements.
By so doing, they exert the function of national efforts to maintain not only control over all
decisions within their geopolitical borders but autonomy over actions that affect common
areas and resources as well. For example the international convention for the Regulation of

53
Whaling established the international Whaling Commission to oversee the provisions of that
treaty but failed to give it enforcement powers. So we realized that treaty violations are noted
and announced, but cannot be brought against nations that have violated these treaties. This is
exactly what happens to climatic international treaties in particular and to other environmental
international agreements in general. The climatic provisions are not backed by sanctions, and
even if they are, they are not mandatory and have no enforcement institutions. Indeed if the
contrary happens, that is, if a country is upset about been charged with violations it can
threaten to ‘cop out’ of the agreements or better still, she can organise a rump group to set
competing standards which of course will be very catastrophic to the international agreement
in question.

In this view we are saying that let climatic dispositions carry some monitoring and
enforcement powers. These monitoring powers are not granted because they appear to conflict
with national sovereignty. They are highly in an opposite direction with the views of
sovereignty. Monitoring and enforcement here will mean that a designated organ or institution
is empowered which will be in charge of supervising the implementation, enforcement while
at the same time monitoring the application of environmental norms and dispositions. Without
effective monitoring and enforcement arsenals, implementation of treaties will be difficult.
Most countries comply with most existing international agreements but also in the same lane,
there are many instances of blatant disregard for rules and deadlines. Sovereignty is often
used as an excuse in such cases and their recalcitrant fellows go unpunished. Countries that
find themselves under some forceful compliance measures asserts that their sovereignty is
been undercut by other nations. It was in this light that Susskind concludes that
‘environmental protection strategies that made sense when they were first proposed represents
‘too little, too late’ by the time they were implemented.

Let’s take a look at the Tauna Dolphin case89 in 1991 substantiates that any country can only
control the consumption of a natural resource ‘only to the extent that the production or
consumption is under its jurisdiction’, and this clearly states that, countries must recognize
first of all ‘International Environmental Law as International Law’ as Eco Vitality argues.
That international law is the fundamental unit of the state and not the ecosystem, of which its
fundamental principle is national sovereignty, not the conservation of nature. But this concept
contrarily has been altered in recent years. Principle 21 of the 1972 Stockholm declaration
embodies this concept to a larger extent however. While it does uphold sovereignty, it also
89
GATT Case DS21

54
states that ‘states should not be absolutely responsible for environmental damage’. Principle
21 tried to limit the scope of national sovereignty by incorporating the much cited ‘good
neighborliness principle’.90

One school of thought in international relations holds that because sovereign nations will
always act in their own interest, international institutions become more or less irrelevant. That
is, such institutions whose role was to lure states into understanding and comprehension of
international treaties will become obsolete. They will never have that effrontery to convince
nations to preserve a course of action inconsistent with their self-interest. While another
school of international relations believes that we do not need multilateral institutions because
self-interested nations in a competitive setting will always work to achieve mutually
beneficial exchanges without any prodding from any international body, whatsoever that
organ maybe as Arthur Stein writes in ‘Why Nations Corporate (1990)’. We are not saying
totally that states are denouncing the fact that they have instituted to enhance corporation in
relation to the diffused climatic provisions in their national boundaries. But they do this in
spite of their desire to give up their sovereignty. This can be seen in a cognitive example
during the G8 summit of 2010 where the China’s prime minister made mention of the fact that
China does not mind taking active role in the implementation process of climatic dispositions
but that they should not infringe into their sovereign rights and laws of their nation. And the
controversial thing is inherent in the FCCC and the Kyoto Protocol; there are substantial
imposing articles which must be taken into effect for there to be a fair and justifiable regime
of climate change. These articles must go a long way to break certain rules of national laws
without doubt.

Sovereign states seeking to pursue self-interest often realized that their ability to build and
maintain cooperative relationships depends on their capacity to sustain appropriate
international assistance. In the same way as in the formation of community governments,
where in the process the people give up their autonomy in exchange for security, the nations
of the world too must in the same way, when they are together, they will work out ways of
handling global problems and surrender some degree of sovereignty. The most important
point, though, is that they do this by choice. They should have been left with no option than to
succumb.

90
While only a principle it has been cited by other environmental treaty session; 1992
Baltic Convention, wholly incorporated in the 1972 London Convention, the 1979 LRTAP
Convention, 1985 Vietnam Convention and Art 3 of the 1992 Biodiversity Convention.

55
A case in point where states sovereignty infringes in the smooth application of environmental
disposition was in the 1982 Law of the Sea Treaty. This treaty advances certain objectives
towards environmental protection and wanted the problem to be unique in nature. To this
respect they outlined the idea of a ‘common heritage of mankind’, that would have diminished
the zone of absolute sovereign of states. They brought up this connotation to reflect a situation
whenever their actions threatened global environmental quality. But this was challenge by the
sovereign rights of states. Many states did not want to adopt, sign or even dare ratify the
treaty. To them, they can do anything they want outside the jurisdictions of other states.

Of course many nations ago accepted, even though to a limited extent, certain limitations to
their sovereignty. But note that some of them did this mainly because they were driven by
their character of self-interest as highlighted above. For instance, some limited their
sovereignty in order to partake of the advantages of international communications and trade.
The operation of ports, airlines, telecommunication and other global systems are all governed
by international authorities. So we realize here that the more countries increasingly
economically become interdependent, the more their sovereignty diminishes. Another
cognitive example is in the field of technology, how it is closely link to security that
diminishes sovereignty. As new satellite technologies allow global monitoring without direct
access to territory, we realize from this that the traditional hardcore notions of sovereignty are
further softened. Nevertheless, while notions of national sovereignty over the management of
natural resources (both within the borders of a country and in common areas) are evolving in
response to technological and economic change, they still pose a substantial obstacle to
effective environmental treaty making.91

From the above analysis, we cannot deny that there is so much complexity entangled between
the two notions of conservation of nature and sovereignty as all fundamental principles
international law. As Hans Morgenthau92 pointed out that there is a paradox following these
two issues. He postulates that how can international law impose constraints upon nations
when sovereignty preludes a sovereign state been subject to legal restraints? He therefore
concludes by saying that sovereignty is incompatible with a strong international law, but that
the concept is consistent and very operational following a weak and ineffective legal order

91
Environmental Diplomacy; Negotiating More Effective Global Agreement, Lawrence E
Susskind
92
Morgenthau H.J and KW Thompson1985, Politics Amongst Nations- the struggle for
peace and power 6th edition New York

56
because ‘sovereignty is the very source of that decentralization, weakness and
ineffectiveness’. From Morgenthau’s lucid conclusion, it is clear that even though the
principles emerging from Stockholm seem to resolve the issue it is merely a Plackian step.
Therefore far greater institutional and ideological reforms need to be conducted for effective
protection. We can however conclude by saying that sovereignty which means international
law by its very nature is inherently weak in formulation and implementation. The common
criticism is that international agreements do not secure a veritable and real environmental
protection simply because their design and operation ultimately affect national interest over
environmental supervision93. So in effect we need a more advance focus and potential
institutional mechanisms to enhance and diffuse environmental provisions into national
boundaries.

B) Absence of an objective binding legal instrument to foster climatic governance.

Talking about a binding document in international environmental law, we will have little or
nothing to say about this progress. It has been noted that in the field of climatic dispositions,
there has been no binding legal document that can help regulate the environmental regime.
Lots of international actors have advocated that there should be a binding document that will
obliges both states and non-state actors to act in one format. In this light, they will be
committed to respect the necessary rules that that bind them. Knowing fully well that the
environmental regime is s one based on interest of many parties, it will be very difficult to
enhance an objective projects if there are no legally binding rules. It was because of this
reason why many individuals have advocated in certain international forums for there to be a
mandatory text that obliges states to comply with certain international agreements but the idea
was refuted and many states were against it. Some recalcitrant fellows refused the idea for an
obligatory text that would hold countries liable which will be backed by sanctions. For
example in March 1989, at The Hague the Prime Minister of France, Holland and Norway
proposed an ambition plan to create a cognitive global environmental legislative body with
the power to impose new environmental regulations and a didactive binding legal sanction on

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Thomas J Cioppa O pCit

57
any state that failed to carry them out. The proposal did not only fail but never came up again,
although they did adopted a declaration calling for a new United Nations authority unto which
will be empowered to act even without a unanimous agreement. In all, what we are saying is
that there has been lack or absence of a didactic document that will render these states to be
committed to their climate restrictions. It is in this way that we clearly portray the failures of
certain superpowers like the United States of America who was supposed to act like a
‘hegemon’ actor over all other nations. But just for the fact that she has not ratify the Kyoto
protocol makes many other states to not comply to the climatic regime put in place.

Talking about the Kyoto protocol which is the corner stone of all environmental regimes,
there should be a remarkable note that even that document does not say whether or not actors
have to be obliged to follow its regulations. The protocol self-failed to stipulate strict
restrictions to states, it also failed to set mandatory rules for which states have to comply and
this can be traced right from the very beginning of formulation of the text itself.

Even though the European Union has made tremendous effort to unify its climate rules by
integrating the 1997 Kyoto protocol into its legislative laws, it is just a Plackian step since
much still has to be done. The European parliament and the Council of Ministers entered into
force the rules of the Kyoto protocol and with this step, all provisions of the protocol have
become EU laws, and the EU has reaffirmed its global leadership in fighting climate change
and implementing the protocol but this is not enough because many states in the south eastern
part of Asia seem not be to legally binding to the EU climate rules. There is the need for a
globally binding climate rules which will help foster the climate governance. It is in this light
that we urge that there should be a unique legislation that will carry out commitments of all
member states under the Kyoto protocol. The mere fact that only 121 countries have ratified
the protocol proves that the judicial instrument cannot take effect until countries accounting
for 55% of developed nations’ carbon dioxide emissions in 1990 ratify it. So we see clearly
that that are still some recalcitrant fellows who do not want to ratify mainly because they are
not oblige to. In fact, leaders will need to come out with a ‘politically binding’ agreement, in
other words, a public commitment that would be difficult and embarrassing for governments
to renege upon and that would cover mitigation, adaptation, finance and technological
accessories.

58
SECTION II

ABSENCE OF CREDIBILITY OF ENVIRONMENTAL LAW

The rules of environmental law due to certain weaknesses have lack credibility in the
international scene in general and to the national territories in particular. Many international
environmental laws have not been able to penetrate the national boundaries of state mainly
because of the fact that, these laws are perceived to be lacking the necessary arsenal to foster
climatic governance in the world. It is in this light that we try to exploit the reason why these
rules are not seen to be valid and legitimate. The rules seem not to be conventional and to this
effect they are not diffused easily into the international community. We will see in the
preceding paragraph how much credibility environmental has in the international community
at large.

Paragraph

Normative qualities of environmental laws

Talking about credibility, we will be looking at the normative qualities of environmental law
in the international community at large. We will qualify how they have been very
instrumental in protecting the climate. Knowing fully well how soft laws are very technical in
formulation and in implementation we will try to see how effective these environmental laws
have been to the international community.

A) Non-Legitimisation of Environmental Norms

59
Legitimacy in global environmental governance inspired us to evaluate whether or not
normative or contextual derivatives act as a problematic as to why climatic dispositions are
not absolutely and effectively attainable. The notion of norm legitimacy rose very evident in
the past two decades as was predicted by Daniel Bodansky in one of his salient articles of
1999- Legitimacy in Global Environmental Governance. However, the dictates of
international law have rendered the question of norms legitimacy to occupy a central place in
international law. Just as the authority over environmental law moves increasingly from a
domestic point of view to international settings, so too are the perceptions that decision
making in the international scenario have become ‘insufficiently democratic’ as Daniel
highlights. At this point we notice that the necessary norms instituted to combat climate
change malfunction lacks legitimacy or better still its void of an impressive legalisation, in
which case nation-sates consequently beat the system and get away with it. So we realize that
because of the fact that climatic norms lack legitimisation, they are not backed by sanctions
and the fear of violation is not very evident. In this light, many states do not actually follow
rules puts in place by international community mainly because they are not legitimate in
nature, in other words they lack authentication from a supranational body or organ. Recently
there is hardly an article that does not make mention of norms legitimisation, many articles
now make mention of this part of weaknesses of the law.94The legitimacy of norms can be
characterized by rules and regulations unto which have been attached sanctions, in other
words these rules’ application or implementation must be backed by retributive measures if
recalcitrant actors emerge. So therefore the illegitimate nature of environmental laws
demonstrates an exemplary reason why enforcement becomes difficult. One of the very
factors that accounts for the illegitimate nature or character of environmental norms to combat
climate change stems from their very start of formulation. They are not actually very strict at
the beginning of their creation. Some of the laws are not strict in nature; they are very weak
and simple. Sadly, after been formulated it becomes very difficult implementing and diffusing
these measures into national legislations. Whereas, all member states pertaining to a particular
organization or under the framework of the laws in question are expected to respect, apply
and implement the rules to the latter. In the prospect of analyzing the contribution of
illegitimate norms that contribute greatly to enhance reasons why environmental dispositions
lack credibility, we will have it done in two folds. Firstly we will examine the various existing
environmental text put in place to combat climate change and coupled with their attached

94
International Law and International Relations page 135 (2004/2005)

60
institutions and mechanisms for the implementation of climatic norms and on the other part,
we will portray them as very illegitimate in nature and in their process of application.

The institution like the United Nations framework Convention on Climate Change will be
examined in details coupled with its product- the Kyoto protocol that was initiated in the post
1990s.

The climate problem was first signaled in 1827 by Fourier and 1896 by Arrhenius. Since,
there has been very little or no comments concerning the changing nature of our climate.
Sporadic concerns about the notion only came up in 1979 at the first World Climate
Conference organized by the World Meteorological Organisation. During the next decades
research activities were intensified and a series of international scientific and political
meetings on the subject became eminent. So in the course of response to the growing political
awareness of the climate issue, the United Nations General Assembly established the
Intergovernmental Negotiation Committee (INC) in December 199095 to initiate negotiations
leading to the adoption of a framework Convention on Climate Change (FCCC). After a
series of INC meetings, the FCCC was adopted in May 1992. The convention was signed by
152 countries and subsequently was ratified by 165 countries. It entered into effect in March
1994. The FCCC consist of a preamble, 26 articles and two Annexes. Annex I the names of
developed countries with other countries with Economies in Transition. Whereas Annex II
includes only the names of developed country parties and these countries are noted for their
high level of industrialization. We will, for brevity sake examine the text of the FCCC below
while the text in full will be posted to this scientific work as other annexes.

The preamble of this text is a microcosm of the protocol in full. It highlights even though in a
smaller version all what is in the text per se. The preamble identifies the climate problem as a
‘common concern for humankind’ as opposed to the ‘common heritage concept’. The
preamble states that just as humankind is responsible for destroying the atmosphere, so too
should they take the responsible initiative to lessen the dangers that awaits humankind from
the effects of climate change. It also repeats the Rio version (Declaration of Rio 1992) of
principle 21 of the Stockholm Declaration which states that ‘states have… the sovereign right
to explore their own resources pursuant to their own environmental and developmental
policies and the responsibilities to ensure activities within their jurisdiction or control do not
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61
cause to the environment of other states or of areas beyond the limits of national jurisdiction.
The preamble in effect recognizes the need for industrialised countries to take actions firstly
and it also acknowledges the low per capita emission of developing countries, their higher
vulnerability or susceptibility, institutional problems and their need to grow.

The ultimate objective of the FCCC as stipulated in article 2 is the ‘stabilization of the
greenhouse gas concentration in the atmosphere at the level that would prevent dangerous
anthropogenic interference with the climate system. Such a level should be achieved within a
time frame…with economic development to proceed in a sustainable manner.’ This objective
is intended to keep countries on tract while they pursue their emission targets. Bodansky
explains that countries wish to give the objective a higher legal status, since the ultimate
objective is included as an article and not in the preamble. However, the FCCC highlights five
principles that serve as guidelines to article 3 and it ranges from article 3.1 to 3.5 96. in the
same light all countries are expected to prepare national inventories of greenhouse gas
emissions, that is, prepare national climate change policy programs and adoption plans. This
is what the text defined as Joint Fulfillment of Commitment. The parties are therefore called
upon to corporate in research and monitoring and to promote education, training and public
awareness on the issue. But as earlier said, upon all these the text does not mandate all its
member states how to corporate and to promote all what t demanded.

Another concern that strikes our attention in the Kyoto protocol is the mechanisms and
institution put in place for the implementation of the FCCC. The effective implementation of
the FCCC depends solely on the formulation of the mechanisms and institutions to implement
the convention. These can be divided into three categories; mechanisms to promote bilateral
and multilateral actions; organisations to promote the implementation of the FCCC; and the
third is other mechanisms. All these mechanisms are the key things that guide the text but
unfortunately there are not applied as planned.

After having taken a glance at the FCCC text lets now determine its effectiveness. It is
however true that the internal legal approach states that normative forces of a norm and its
legitimacy determines its effectiveness. Institutions of global governance therefore must be
politically legitimate just as Stephen Gardiner highlighted in his book the ‘Climate Ethics”.
The institution for ensuring and monitoring of climatic problems over states must first of all

96
The Climate Change Convention and Developing Countries; from Conflict to Consensus
by Joyeeta Gupta Klumar academic publishes PO Box 17, 3300 AA Dordrecht The
Nederland’s

62
have political legitimacy and it is in this light that the normative force of their norms can have
credibility and hence, the rules will be rendered legitimate. We should however note that the
central issue with respect to the ordering function of environmental norms in global society
relates to their perceived legitimacy. This is an important factor for the consolidation of global
environmental norm. Even in places where environmental norms are perceived to be
addressing rightful issues of societal behavior, in as much as it is void of legitimacy, it will
have no application and implementing force. Without this aspect of legitimacy the political
will which determines the success of a rule of law will be little or nothing. Besides legitimacy,
some other factors like fairness (void of anger), are necessary for the consolidation of global
environmental norms as cited by Rosemary Foot , Andrew Walter in ‘China, the United States
and Global Order’ in which she said that, these two nations perceive the FCCC as lacking the
necessary dictates of legitimacy, fairness and political willingness of states. This is one of the
major reasons that environmental laws lack credibility. More flexibility mechanisms need to
be attached to global environmental laws. One of these very flexible mechanisms is sanctions.
The FCCC text did not stipulate anywhere in the document that analyses penalties for member
states who do not comply with their emission targets. In fact the regime’s legitimacy has to be
reconsidered. In effect what we are saying is that, due to the illegitimate nature the
environmental norms to combat climate change, states and some other actors of international
relations take delight in breaking climatic rules as they are aware of the non-danger or
punishment attached to their actions. We therefore convene a didactic forum that will set up
objective rules attached to climate norms that will help promulgate compliance,
implementation coupled with effective monitoring and enforcement mechanisms.

B)

Environmental norms are non-conventional in nature.

One thing that accounts for the absolute failure of environmental norms application is the fact
that they are non-conventional both in nature and in context. Conventional norms are sets of
agreed, stipulated or generally accepted standards, laws which often take the form of a
custom, which may also become a law after effective application. Conventional laws are
primarily sources of international law and it only results to be effective when states follow
certain practices generally and consistently out of a sense of legal obligation. And it is only
when these laws have been applied smoothly that they can be called customarily laws which

63
then be codified as was in the Vienna Convention on the law of Treaties. For laws or norms to
be conventional there must be a dignified international agreement and to which the
contracting parties will agree upon. Even though agreements may be made in respect to any
matter except to the extent that the agreement conflicts with the rules of international law
incorporating basic standards on international conduct or the obligation of a member state
under the Charter of the united nations organisation. These international agreements create
law for the parties of the agreement. Norms also become convention when they are intended
for adherence generally and are in fact widely accepted. And moreover conventional law are
just parts of international law and the parties of international law takes into account the other
actors of international relations not only states. But this is not the case with international
environmental laws. First of all, international environmental laws are not generally accepted
by all parties concerned. There are lots and lots of divergences when we talk of international
environmental law. Many parties are putting interest in whatever they do. In this light,
climatic norms lack the necessary substratum of conventional character. To this effect,
international environmental law normative quality is very low and may not be achievable.

Conclusion

64
PART TWO

THE IMPLICATIONS OF INEFFECTIVENESS

From the above enumerated explanations, it is very certain that ineffectiveness will have some
negative implications to both the human environment and to the things like plants and animals
surrounding it. From the above we have tried to explore how best global environmental
negotiations be attained. Due to this, internal and external pressures have been mounted on
the national committees, and how this committee can address effectively environmental laws.
Obviously, such negotiations must take account of each country’s desire to pursue its national
interest while recognizing the absolute necessity of promoting Effective Corporation if we are
actually willing to protect the biosphere. This then is the main reason behind the difficulty of
global environmental negotiations.

Consider for example, the Earth’s summit in Rio de Janeiro of 1972, where preparations for
this mega event were attended by 400 officials and 30,000 unofficial negotiators which took
many years. It culminated in a two weeks of face to face interactions, during which the
negotiators tried to work out details and conclusion of several incredible and complex issues.
In the fall of 1989, when the United Nations General Assembly called for the conference on
Environment and Development (as it was officially titled), there was some hope that treaties
dealing with climate change, trans boundary air pollution, deforestation, soil loss, desert
expansion and drought, conservation of biological diversity, protection of the oceans and seas,
protection of fresh water resources, and strategies for financing all these improvements could
be signed in Rio.

But the unfortunate thing is that at the end the highly evaluated conference managed to sign
just two treaties; Convention on Climate Change and a Convention on Biological diversity.
However, these documents must still be ratified by at least 60 of the legislative branches of
the 150 plus government units that signed. The leaders present in Rio also presented and
initiated a general declaration of concern about the environment called the Rio Declaration,

65
supported a long list of ‘action projects’ called agenda 21, and drafted statements of principles
to guide future treaty making of forest protection and desert expansion. At this point we
realized that this organ at Rio was unable to nurture a clear cut provision that fights against
ultimate climate change effects. Even to the extent that the moderated amount to be
contributed annually could not be attained.

We cannot say absolutely that Rio de Janeiro meeting was totally fruitless. At least the
delegates succeeded in reaching a testament which demonstrates the growing worldwide
concern about environmental threats facing the planet. Leaders from all over the world were
under tremendous pressure to show progress to a considerable level. Yet, the two treaties that
did emerged are; for the most part, only very general statements of concern or what are called
‘Framework Conventions’. The failure stems up from the fact that the climate change
convention includes neither timetables nor targets for reducing the emissions of so called
greenhouse gases that are allegedly blamed for global warming trends. The biodiversity
convention was unacceptable by the United States for example which claimed that it did not
adequately protect intellectual property rights and would discourage technological
innovations.

The task of generating international agreements is extremely difficult. And more specifically
on environmental issues which have other themes attached to it like scientific uncertainty,
politics, citizen and industry activism with economies are probably the most difficult.
Unfortunately, the procedures with which environmental agreements are determined to be
sorted are not the best to handle the unique demands of climate change. Moreover, they also
fail to take account about the dynamics of multi-issue, multiparty negotiations.

Indeed they have been relative ineffectiveness in promoting the unique kind of worldwide
collaboration required to handle these problems.

66
CHAPTER I

THE EFFECTS OR IMPACTS OF INEFFECTIVENESS

Studies of the interactions of climate change with both the environmental and societal
activities show clearly that they have some important interconnections. This idea of
interconnecting the environment and societal activities was mentioned about a century ago by
Fourier in 1826 and Arrhenius in 1896 wherein they all accepted and acknowledge the
inextricable link between man and nature. This conception, though absolutely true has been
agreed upon by contemporary documents, agencies and vital institutions like the IPCC,
eminent Advisory groups, government agencies, professional societies and prominent
scientific researchers. Still, long term observations confirmed that our climate is now
changing at a rapid rate and the science postulates that the 21st century appears to be warmer
than the previous 20th century; consequently, the world is substantially getting warmer.
Climate provides a platform for both the environment and societal activities. So therefore
changes in the climate will have diverse adverse consequences for both the environmental
systematic pattern and the normalized societal activities. The ramifications for this outcome
will of course be very undesirable and even though the implications will have a geopolitical
character, it will hit the less developed and developing countries the most. These effects and
consequences will touch almost, if not all, the prime sectors of human life on earth, hence, we
will have the ecosystems, agricultural sector, economics, drought, floods, conflicts and it will
leave the highly affected region’s existing challenges of economy and agriculture.

Despite all these warnings alongside their side effects, the policymakers have not taken a
considerable step in promoting environmental dispositions. They have been very reluctant in
the field of the environment. Even the already existing norms are not effective; in fact they
have not been applied effectively. This ineffectiveness of environmental dispositions can be
traced as a result of the fragmentation and poor enforcement mechanisms. Or better still, the
inadequate driving force of the text and institutions put in place to combat climate change.

67
Knowing fully well how the government’s action is always partial towards environmental
actions the reasons for ineffectiveness can also be attributed to lack of political will to
mitigate environmental dispositions especially in regions where developing countries and
industrialised countries co-exist. The Mediterranean region is an example. Another reason that
can account for ineffectiveness is the absence of a systematic approach to environmental laws.
This systematic approach was supposed to dictate corporation between the authoritative
regulatory supranational body and the states, be it less developed, developing or developed
countries. All these recorded failures have gone a long way to hamper states approach towards
climatic dispositions.

There are however, certain key elements that can help us evaluate the climate change regime
from the point of view of the institutions. First of all, the FCCC as a major institution for
enhancing climate change laws took a ‘soft’ approach towards addressing global climate
change issues. It establishes an infrastructure of institutions and legal mechanisms which were
intended to create a long term process in addressing climate change issues, instead of
imposing strict obligations. If we should recall, its two main objectives were; national reports
tabled by states and that financial support be granted to developing and less developed
countries. These two obligations are to encourage, rather than require national actions to
combat climate change. Instead, it’s the Kyoto protocol that presents a progression in the
climate change regime towards ‘harder’ law, defining more precise commitments of
developed countries to limit their greenhouse gas emissions and suggesting the need for
stronger compliance measures. In effect, the very nature of the laws created alongside its
institutions for implementation is very weak and incompetent. So ineffectiveness is somehow
justified in this domain.97

After having seen the reasons for ineffectiveness, this work will be charged with evaluating
the legal interpretations of climate change, examining and summarising the potential
ramifications brought by the ineffectiveness and non-implementation of global environmental
law. The effects will be examined in two folds, the immediate effects and the long term
effects.

97
See table for key Kyoto and FCCC provisions in our annexes

68
SECTION I

SHORT AND LONG TERM CONSEQUENCES OF CLIMATE CHANGE AS RESULT OF

INEFFECTIVENESS.

Due to the ineffective application of environmental or climatic norms, there have been varied
consequences recorded both long term and short term. These ramifications can be classified
into two; that is the immediate and the long term effects. In the preceding paragraph we will
be analysing the said consequences.

Paragraph

The immediate impacts of Climate Change as a result of ineffectiveness of

environmental dispositions

Due to the vehement refusal of states to comply with the stipulated environmental law
principles as enacted in various environmental accords, they impliedly render our society to
vulnerable environmental or climatic harm. The susceptibility of our society to climatic
changes will however come along with devastating effects. Following the publications in
2008 of the National Intelligence Assessment of the National Security Implications of global
climate change to 2030 (NIA 2008-01, June 2008), the National Intelligence Council detailed
the impacts of climate change and portrayed the effects or impacts as having a geopolitical
character.98In as much as these impacts will vary nationally and regionally, they will also be
felt in the political, socioeconomic, and even cultural sectors of some individual countries in
the developed world. Climatic changes are presumed to cause inter and intra state migrations,
cause economic hardship or even results in increase social tensions or state instability within a
region. In effect, we will consider the probable impacts of climate change in the world’s
social, political and economic perspectives. This workshop will focus mainly on the less
developed and developing countries in particular and the entire world in general.
98
North Africa; The Impacts of climate Change to 2030; geopolitical implications prepared
jointly by the CENTRA Technology, Inc. and Scitor Corp

69
The panelist idea that future state failures will not be attributed to climate change but that, the
climatic stress, coupled with socioeconomic crises and ineffective state response could
generate government failures and humanitarian collapses as estimated in the next three
decades. By the way, the effects or impacts of climate change will exacerbate the region’s
9developing and less developed) already existing challenges of insufficient water and food
resources, low economic growth, inadequate urban infrastructure and of course weak political
systems. Moreover, this region might or is likely to face civil conflicts over scarce resources
such as water, arable land, food or employment which will be explicitly express in the
upcoming paragraphs. In all, ineffective state response to climate change will pave the way
for devastating social, economic and geopolitical ramifications and this will leave them with
crucial agricultural, demographic and economic challenges.

There is the tendency that economic positioning renders environmental degradation in

developing countries as policymakers and scholars will say, but however, we have neglected
the failures of regulatory design of environmental law. Much of the research into the failures
of environmental regulations has focused on implementation and enforcement problems
coupled with excessive economic activities, but we argue that one of the primary reasons for
such regulatory failures that policymakers have not paid enough attention to designing
regulations appropriate to the legal, economic, political and social institutions in which they
must function. In fact, developing and less developed countries have had bad experiences in
environmental regulatory regimes. Knowing fully well that environmental laws by their very
nature transcend national boundaries99, these highly vulnerable countries have used the
weaponry device of sovereignty to serve as a blockade to climatic law principles from
diffusing into national territories. Even though emerging international environmental law has
tried to challenge this traditional device by proposing a Trans boundary variation of the no
harm principle, the principle of good neighborliness, and other similar precepts that form part
of the body of international law.100All these precepts have culminated to hinder the effective

99
See Daniel C. Esty and Maria H. Ivanova, ‘Towards a Global Environmental Mechanism,
in WORLD’S APART GLOBALISATION AND THE ENVIRONMNET 67, PAGE 68-71 (James
Speth ed, 2003). Gunther Handl, ’Trans boundary Impact, in THE OXFORD HANDBOOK OF
INTERNATIONAL ENVIRONMNET LAW pages 531, and 533 ( Daniel Bodansky et al eds
2007)
100
See Trail Smelter Arbitration (US, v. Cam) for the earliest articulating of this principle.
The continuing important of this approach to environment damage was confirmed in the
legality of the threat of Use of Nuclear Weapons, Advisory Opinion

70
application of environmental dispositions in the world and they have come with side impacts
which we are going to examine below.

In the past, efforts to assist developing countries in crafting environment regulations have
relied upon the importation of legal schemes by colonial powers and the transplantation of
regulatory models developed in the northern hemisphere. Sadly, this reliance on an imported
model has ill-suited developing countries. As earlier mentioned many critiques of
international law and international relations have tended to center on the difficulties of
enforcement and implementation mechanisms put forth to dilute these environmental
dispositions into national legislations. We should note however that the very existence of
legal rules does not r is not sufficient to guarantee effective laws. Enforcement is crucial for
the objectives of substantive law to be realised.101 Effective enforcement is closely linked to
the increase rate of compliance, so if the prospects for enforcement are absence, then the
incentive to disobey the law increases. Thus ‘all prescription of behavior (and the sanctions
set out for violating them) require enforcement’ in order to be effective.102But for numerous
reasons, however, law enforcement in developing countries is frequently ineffective and
violators are not held liable and most of them go unpunished. Firstly all stages of the
enforcement process may be adversely affected by corruption and sadly, the laws in question
can be rendered toothless by a combat judiciary or police force. Another reason is the
influence gigantic industrial lobby groups have at various levels of the government. 103 Where
their influence is strong it is unlikely, that legislation stopping industry activities will be
implemented. A further difficulty is at the level of administrative resources. The qualified
personnel’s necessary to influence and implement enforcement measures may not be
available, or better still, there might still be scarcity of other resources to monitor compliance
and to follow up with enforcement mechanisms in the event of a mechanism breach.

Equally problematic in developing countries are those situations in which enforcement of

legislation relies upon the involvement of an active citizenry. This is very particular in
101
GERAINT HOWELLS and STEPHEN WEATHERILL; CONSUMER PROTECTION LAW; page
50 (2nd edition 2005).
102
George J Stigler ‘The Optimum Enforcement of Laws’ 78J Pol.Econ pages 526, 526 –
536 (1970)
103
For example opposition from Chinese industry prevented strong incentive for pollution
reduction. Pollution charges in China were set slightly above average operating cost of
pollution control facilities. In practice they were not indexed to inflation, thus eroding
their real value over time. Efforts to raise the charge met industry resistance see
O’Connor, Supra note 40 at 96-97

71
environmental laws. Active citizenry are adversely needed to report violations. Similarly,
when attempting to enforce conservative laws, the wide areas of land to be monitored require
a large number of eyes. In this type of situation therefore, it is important that the local
population be involve in monitoring compliance.104

From the above we can argue that however that even though enforcement problems are not to
be underestimated, and indeed are an important source of the ineffectiveness of environmental
law in developing countries, the substantive content of environmental law is also very vital
and must be taken into consideration. By this we mean that if there are well designed
regulations and effective legal instruments that are developed sufficiently to adapt to the
possibilities and problems of the country in question, then from here environmental
effectiveness may seem plausible. A good regulatory model of environmental regime might
render enforcement achievable. So we are in effect attributing that, failure to enforce a given
law might actually result simply from choosing the wrong type of environmental instrument.
After having looked at the reasons for ineffectiveness, it will be very instructive for us to
determine the probable effects that might be caused by climate change to our society bearing
in mind that the effects or impacts will take the form of a geopolitical implications; they will
inversely affect mostly the developing and less developed countries. As per the Regional
Climate Change Index (RCCI), the Mediterranean has a higher rate of possibility to be
affected the most and they are very responsive to climate change, given the ecological and
socioeconomic characteristics of the Southern Mediterranean countries. The impact of climate
change may be felt more in the enumerated zone than in any other region in the entire world.
Without much ado, let’s take a look at the immediate impacts of climate change below.

104
See for example T. Holmern et al ‘Local law Enforcement and Illegal Bush Meat
Hunting Outside’ the Serengeti National Park, Tanzania 34 ENVIRONMENTAL
CONSERVATION 55,56(2007) Zambia, for example was successful due to the local
citizens’ familiarity with the conservation area and their enthusiasm for the conservation
effort.

72
A) Economic potentials of developing states are at risk

Economically one of the very first impacts will be felt on the smooth agricultural pattern of
developing countries and their less developed counterparts. It will distort the agricultural
systems of most of these countries. The model systems of agriculture will not, if care is not
taken, match the consistent changes of the climate. Knowing fully well that temperature,
precipitation and atmospheric carbon dioxide will be the dominant factors that rely on
intensive agriculture; these variations will be most affected by the climate stress. The rapid
cooling and warming will make all these things to change too at an unprecedented rate. This
will not only distort but it will negatively influence the normal yielding of agricultural
products. For example modeling studies suggest that future increases in air temperature will
have a negative effect on growing seasons in Egypt. And this of course will lead to intensive
irrigation practices in the region and this may result to further salinity, which my intern lead
to desertification, hence the agricultural exportation of many developing countries will fall
drastically. They will have little or no revenue from agricultural exports, which will affect
their economies greatly. In effect, the climate turbulence will hinder the smooth productivity
of crops in so many countries in the world. Sadly, while many of these countries rely heavily
on their agriculture for food for their inhabitants and their Gross Domestic Product (GDP) for
exports, climate stress may greatly affect the agricultural pattern. Adaptation strategies,
development of regional and local climate models in the coming years can help divert these
upcoming agricultural ramifications.

Moreover, energy which is the main source of power to gigantic industries in the north risk to
be extinct, that is there are more or less perceive not to be existing. Many hydrocarbon
industries in the developed or industrialised world depend highly, if not, solely on the
exported fossil fuels that are been exported from developing countries. Because of the
excessive benefits or revenues that these developing countries receive from their European
counterparts for exporting fossil fuel, they are to a certain degree more vulnerable to the
ravaging climate impacts on their resources than any region in the world. The developing
economies to a larger extend depend on hydrocarbon for their industries and for this reason
they have tended to import more natural gas and oil. For example Algeria, Libya, and Egypt
rely massively on these for their home industries. But this will greatly endanger the very
existence of their national industries if care is not taken.

73
Continually, one of the productive economic sectors of developing countries is the emergence
of their touristic sites. Tourism is an important source of income for many developing
countries like Brazil, South Africa, South East Asia, Egypt, just to name a few. Tourism has
been very beneficial to the economic life of these countries. Tourism in developing countries
like South Africa, North Africa, and part of East Asia has played a fundamental life in the
economic life span of these regions. For countries in North Africa like Egypt, Algeria, and
morocco there have been a large concern of water shortage coupled with the little attention
that the government of this region have given water provisions in the past. And there is the
high possibility that due to the changing nature of the climate, there will be some extinction of
both plants and animals. Still, talking about extinction, there is the possibility that because of
the effects of climate, some beautiful water canals which served as a touristic site for these
countries might be gone. Thus increase water scarcity, sea level rise will subsequently have an
impact on this sector of tourism and consequently the economies of these countries will not be
at a boom.105 Due to the scarcity of water supply, water borne diseases will likely be eminent
and this will make water borne diseases one of the leading causes of death. We should
however note that already two third of the world’s population live in areas of water
shortage,106 and also 180 million people in Africa live in areas where they compete for water
and land. Still in Marine waters, nearly three quarter of all commercial fish stocks are
harvested earlier than they can actually produce107 as was stipulated by the Food and
Agricultural Organisation (FAO) in 2002. Even the World Health Organisation (WHO) in
2003 had that five hundred people in Asia die every year from disease related to air pollution
from auto and industries. In fact, climate change will reduce water availability and quality
creating the potential for severe water shortages in both developing and less developed cities
and rural areas. As statistic portray in 2030, three quarters of Egyptians will have inadequate
access to fresh water.108 In fact species and other touristic sites will become extinct at an
unprecedented rate taking with them potential yet unknown sources of medicine, nutrition and
other benefits. And this will cause high economic loss to these regions. Re-largest

105
Water stress as used by the IPCC refers to a per capita water availability of below 1000
cubic meters per person per year. The IPCC formally defines a country as water stressed
when withdrawals exceed 20% of renewable water supply
106
Judicial Handbook of Environmental Law
107
FAO 2002 reports
108
Munich Re-largest Insurance Company-2030.

74
Reinsurance Company predicted that in 2003 that the global economic loss due to weather
events would reach 30 billion USD annually by 2050.

B) Socio-political consequences are highly visible

Socio-politically, climate change can cause adverse effects on the relations between countries
both within and without. Some governmental failures can be ascertained as a result of the
climatic stress that proportionately is heating down on the entire world in general and the
developing countries in particular. The most vulnerable regions like the Northern part of
Africa and the developing Asian countries are likely to face civil conflicts over scarce
resources such as water, arable land , food and unemployment which may be expressed in
sectarian, ethnic or anti-regime tensions. North Africa especially faces increase risk of inert
state conflicts with southern neighbores over the next twenty years owing to the substantial
impacts of climate change. For example an attempt by Sudan or other upstream to expand
their use of the Nile River in response to climatic stress would seriously threaten Egypt and
this could provoke armed conflict between them. As an addictive, the North African states
may be drawn into conflicts or climatic crises in the susceptible Sahel region to the South.

As a connection, these conflicts could involve nomadic population crossing state borders. In
recent years the developing countries have experience vast migration pressures from their
home countries heading to the North. However, climatic experts did not see climate change as
directly and proportionally leading to migration from developing countries to developed
countries. Nevertheless, warmer climates and changing temperature patterns which would
likely affect viable cropland and reduce access to water will increase urbanization and hence,
make accommodation needs of a growing population very difficult. Besides food and water
resources, climate change natural calamities or disasters can prompt people to relocate. The
wide range of future estimates in sea levels is very sensitive and delicate to the human society.
The intensity and frequency of floods along the coast of developing countries are expected to
increase by the middle of the 21st century. Droughts, salinisation which are contributory
factors that can force farmers off their fertile lands are highly expected to hit the developing
countries. In fact highly populated and agriculturally important coastal cities of developing
countries are the most vulnerable to this effect.

75
After having analysed the substantial immediate effects of climate change, it will be very
instructive for us to conclude by stating that, in as much as the effects of climate change will
hit mostly the developing world; it is a course of action that calls for a unique endeavor to
help curb this foreseen devastating impacts. It is to this view that we attribute the rule of a
‘common but differentiated responsibilities’109 towards a ‘common heritage’. Corporation in
this field is not a question of option but a mandatory action that all sates have to participate.
However, even in the absence of climate change, developing countries will face sociopolitical
challenges over the next two decades. The region will have to contend it’s increasingly youth
population, tenuous economic growth, persistent unemployment, urbanization and other
related stress including inadequate housing and infrastructures. So therefore, the effects or
immediate impacts of climate change will exacerbate these political and economic and social
challenges which care is not taken will only plunge the entire region into crises. These
developing countries should then move from a standpoint of contestation to participation to
engagement.110

109
The idea has been substantiated by the so-called Environmental Kuznets Curve (EKC)
Bucking the Kuznets Curve; Designing Effective Environmental Regulation in Developing
countries- MICHEAL FAURE; MORAG GOODWIN and FRANZISKA WEBER
110
ADIL NAJAM- the Fletcher School of Law and Diplomacy, 160 Pactatred Ave. Medford
MA 02155,USA

76
SECTION TWO

THE LONG TERM IMPACTS OF CLIMATE CHANGE AS A RESULT OF

INEFFECTIENESS

Climatic stress is noted for encumbering a long trance of ramifications which may hamper the
future lives of man and his nature. If care is not taken, the climatic changes can come with
long term effects which may even be more devastating than the immediate ones. In as much
as climate change has immediate effects, it also has some long term effects which of course,
still would affect the developing countries the more. These long term effects would affect the
future generations which puts to question the very concept of sustainable development. It is
due to this that the concept of sustainable development has laws embedded into the national
legal frameworks and have been accorded equal status alongside other economic and political
considerations. In the preceding paragraph we will determine how much climate change can
affect the concept of sustainable development.

Paragraph

Questioning the principles of sustainability- sustainable development and inter and

intra-generational equity.

It was not an accident that the Stockholm summit was United Nations Conference on Human
Environment, an emphasis very reflective of the environmental challenge and preservation of
the ecosystem. The development argument advance before the Stockholm and after, did
orchestrate many other ideas for the protection of the future generation and this resulted first
in the World Commission on Environment and Development (WCED). And later in the Rio
conference another conference was held whose aim was to protect the development and
preservation of the environment, this conference was called United Nations Conference on
Environment and Development, rather than the United Nations Conference on Human
Environment. In fact all these conferences came to portray an argument between sustainable
development and preservation of the ecosystem.

77
A) The very motive for sustainable development will be defeated.

We cannot but affirm that with the numerous worlds’ summits on sustainable development,
the politics of the environment has now shifted to be the politics of sustainable development.
As Adil Najam puts it that ‘the southern argument has had considerable, even remarkable
influence on this transformation of the ‘environmental agenda’ into a ‘sustainable
development agenda’ not only in the titles of these mega conferences but even in the mission
statements of global institutions like the World Bank and the World Trade Organisation
(WTO)111. So therefore, the recent place taken by the need to preserve sustainable
development has occupied a considerable zone in the international system. No doubt
therefore, the climate crisis will disrupt the organizing principles of sustainable development,
which have now become the dominant motives of global environmental dispositions. In fact
all the above enumerated conferences for the preservation for the principles of sustainable
development portray that if care is not absolutely taken, then, the idea behind long term
development will be defeated.

The idea of sustainable development mostly, if not, over ways on the south side of the
developing countries. In effect what we are saying is that, the south is mainly in pursuit of
sustainable development. Yet, sustainable development should not only be seen as a southern
interest, and it is neither an opposition to the north. But ‘combating climate change is very
vital to the pursuits of sustainable development and equally the pursuit of sustainable
development is integral to lasting climate change mitigation’. The pursuit of sustainable
development is the clearly stated goal of both the UNFCCC and the Kyoto protocol; see for
example the preamble and article 2 and 3 of the FCCC and article 2 and 10 of the Kyoto
protocol. Yet, there has been some great degree of reluctances from those from those
operating in the ‘climate arena’ to earnestly deal with the concept of sustainable development.
Even in the Rio conference of 1992, the summit clearly placed sustainable development as a
common interest for all countries, less developed, developing as well as industrialised. So in
effect we are saying that the concept of sustainable development is somewhat crucial in as far
as climatic substantial consequences are concerned. If precautions are not taken correctly and
at the right time, then, the concept will be clamored upon by the widespread impact of climate
change. So it is time that those involve in climate policy recognize the central place that
sustainable development occupies. In this light, they will also understand that the concept of
sustainable development is similarly important to their goals and there is a need for
111
Najam 2005

78
implementation and enforcement of climatic dispositions so that its effects would not hamper
the prospects of sustainable development. The climate change regime would be a stronger
regime only if it forcefully re-establishes its links with sustainable development and by so
doing it will certainly get more support from the developing countries concern. Ignoring
sustainable development’s importance to climate policy may or may not impact the future of
sustainable development but will certainly have an adverse impact on the future of the global
climate regime. Sustainable development is in fact a vital tool for climatic stress, so its
variables have to be handled with care not to alter the climate system just as Munasinghe said
that’ sustainable development is needed because it can provide the conditions in which
policies can be best implemented’112. The veritable question now is could a new climate
bargain be struck which explicitly links the goals of combating climate change with those of
sustainable development? The answer will be of course a yah. But this can only happen if
governments, academicians and other climate activist from the south take the forefront in
actively enabling such change. The lead for such a restructuration of the climate debate will
have to emerge from governments of the south since they are the principal ‘demandeurs’ of
such change.113 Once the task of bringing the Kyoto protocol into force is completed, we will
have to start thinking what measures that have to follow the protocol. Developing countries
which have essentially sat on the side lines of the climatic discussion for the last ten years
now have both the responsibility and the opportunity to become more active in, if not become
the leaders of this discussion and this will be reflected in what the United States called
‘meaningful developing countries participation’114 in the climate regime. In effect, a need for
substantial collaboration between countries of the South is vital to help curb climate
unforeseen circumstances which might in another way distort the processes of sustainable
development.

B) Sustainable principle of inter and intra-generational is been killed

112
Munasinghe, 2000, Beg et al, 2002
113
Najam and page 1997; Sagar and Kandlikar,1997; Banuri and Gupta, 2000, Sokona and
Denton, 2001
114
Negotiations Beyond Kyoto Protocol; developing countries concerns and interest; ADIL
NAJAM, SALEEMULHUG, YOUBA SOKONA FLETCHER school of law and diplomacy MA
02155

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Furthermore, we should note that the principles of sustainability are often undermined by the
most rapidly industrializing economies when carrying out their activities of enhancing
development. Contrarily, several principles of sustainability instead expressed the plight of
the most disadvantageous nations who are the developing nations of Africa, the oceanic’s,
Latin America and East Asia. Some of these principles of sustainability are; the concepts of
‘intra generational equity’ and ‘common but differentiated responsibilities’. So we realized
that while the discourse of sustainable development has been embraced by nearly all
governments worldwide, its relevance to and implementation in post-colonial societies remain
problematic.115 So we realize that there is still massive tension between the nature
conservation and local communities social and economic needs, even their Trans national
corporation activity in developing countries and by so doing, they defeat the very reason of
sustainable development by not complying to the dispositions of climate change. In in as
much as climatic effects are not avoided, it will hinder the essence of sustainable
development. It was in this sense that the concept of sustainable development has been
impounded into the national legislation of many developing countries. They have, in recent
years made lots and lots of references to the principle of ‘sustainable development’ and this
can be seen in their statutory regime.116 They however have done this with the assistance of
international institutions like the World Conservation Union (WCU) and the UNEP. A case in
point is the Vietnam’s Law on Environmental Protection 1993 which declares its goal as
‘serving the cause of sustainable development in the country’117 , another example is the
Zambia’s Environmental Protection and Pollution Control 1990 which also in the same light,
gives the National Environment Council the duty to ‘identify, promote and advise on projects
which further or are likely to further… sustainable development’118-section 6 (2). But, in spite
of the fact that they have stipulated these rules in their national statutory law, they still
however lack the enforcement tools or arsenals in their legal systems to implement these
norms. Unlike examples from some developed countries like New Zealand’s Resource
Management Act of 1990, most of these developed countries lack the policy tools to
implement and enforce sustainability.

115
AD Hecht ‘The Trails of sustainable Development; Promoting Sustainable Development
in Developing Countries (1992) 8 (2) ‘journal of environment and Development 111’
116
SO Subedi, Incorporation of Principles of Development into the Development Policies of
Asian Countries 2002, 32 Environmental Policy L85; Hecht, above n 2
117
The preamble available at www.vietnamlaws.com
118
Section 6 (2) (m) Cap 204 of the Laws of Zambia

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In as much as sustainable development was defined in 1987 in a report of the world
commission on environment and development (also known as the Brundtland report) as
development that ” meets the need of the present without compromising the ability of the
future generations to meet their own needs”. It is at this point that we urge our national,
regional, international government and institutions to help apply implement and enforce the
statutory rules of curbing climate change, so as not to alter this definitions motive. This is
because if these precautions which have been indicted in the national and international
provisions are not followed with care, then the principles of sustainability- intergenerational
equity for example will be a fiasco. Hence, the effect on both the future generations and to
some patches of the present generations however regionally will be devastating. So we
therefore, have foreseen these effects and it is in this light that we try to formulate some
propositions which even though will be optional, might be contributing factors to help abstain
the calamities that awaits the world in general and some regions of the developing countries in
particular.

CHAPTER TWO

PROPOSITION

The scientific work will not be completed if at the end we don’t highlight some propositions
on how to ameliorate the rapid changing climate. The work however, guaranteeing the greater
effectiveness of environmental law, it also stresses that ineffectiveness of environmental law
has deep roots which obviously must be faced with pragmatically and eradicated absolutely.
Environmental law encounters many difficulties in its actual enforcement. And there are many
complex and sophisticated explanations for such obstacles, including cultural, political,
economic, technical and scientific causes. Paradoxically, there have been a lot more of
orientation about environmental degrading process of the society, both in the national
statutory provisions and internationally.

Paragraph

Advanced proposition to help ameliorate the environmental pandemic

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We cannot but affirm the fact that national comprehension and understanding of the
environmental scenario have increased in a considerable manner but we should not forget that
a mere comprehension of a text does not mean we should expect positive outcomes. At the
national level for example, the Nigerian Constitution provides that ‘the state shall protect and
improve the environment and safeguard the water, air and land, forest and wildlife of
Nigeria.119 We cannot but also affirm without fear of contradiction that recent decades have
been marked by more comprehensive legislative efforts constructed in the consciousness of
environmental management and advancement. Some of these legislations, of course national,
have embedded in them principles and guiding rules to the preservation of the environment.
They stipulated the preservation of the environment. They stipulate the precaution measures
of air pollution, land use planning, environmental impact control for example in Pakistan
there is the Environmental Protection ordinance of 1983, in Egypt there is the Environmental
Protection Law of 1994, in Uganda there was an adoption of the National Environment Act of
1994, in Brazil there is a national Environment Policy Law of 1981120. This is at the level of
their norms and rules but even at the level of their institutions, they have done read good in
explanting institutions which are aimed at enforcing and monitoring environmental
realization. In India for example, there is the Ministry of Environment and Forest, even in
Chile, there is the National Commission for the Environment, not forgetting Nigeria wherein
is the Federal Environment Protection Agencies.

But despite the evolution and enactment of the numerous environmental laws and regulations,
the environmental crisis continues to worsen because the issues triggering the problem have
not been evicted. The need to improve environmental enforcement and compliance is apparent
in national, regional and international law. In other words this is a ‘common challenge’ for
which a ‘common response’ has not yet been found as was confirmed by Amedeo Postiglione
judge of the Supreme Court of Cassation of Italy. 121 Most of the reasons of the failure of these
environment dispositions can be accounted to the nature and content of laws or climatic
regime fabricated at the beginning. The content and nature should be a little more stringent or
119
Constitution of the Federal republic of Nigeria 1999, S20,EE Okon, the Environment
Perspective in the 1999 of Nigeria constitution (2003) 5 Environmental Law. Rev 256
120
For these and more examples see ED McCutcheon, ‘Think Globally (En) Act Locally;
Promoting Effective Environmental Law Regulatory Infrastructure in Developing Nations
(1998) 31 Cornell international LJ 395
121
He is also the vice president of the European Forum of Judges for the Environment,
Director of the International Court of the Environment Foundation (ICEF), via Cardinal
Pacca 1900165 Rome (Italy), ieef.postiglione@fiscali.it

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better still, ‘harder’ than what is now owing to the complex nature of the issue at hand. Most
environmental issues are long term, climatic change is particularly so. The test of any
environment regime is general or climatic change in particular is not simply what it will or
will do in few years, but also what it is likely to achieve in decades to come, even centuries,
why not millennium. Any valuable policy architecture put in place is likely to remain with us
for very long time as was stipulated in Jacoby et al 1998. It is therefore very important that the
‘policy architecture we construct is robust enough to stand the political as well as the climatic
test of time’. The Kyoto protocol even though it is an internationalized step in the right
direction, leaves s much to be desired in terms of its implications for long term policy as was
in Copper 1998. That was in the point of view of the world in general while specifically in
terms regime architecture will be one that defines its targets not in terms of symbolic short
term measures but long atmospheric stabilization, which gives all countries a clear signal on
what is likely to be expected of them in the future, which is based on clear and objective
principles derived directly from the UNFCCC and which is seen to be fair and equitable to all
countries- north and south. This should not be called as an abandonment of the Kyoto but
instead a restructuration and qualification of the need to build Kyoto provisions by returning
to the UNFCCC basics. This can however not be successful if the North does not actually
understand the plight and pledges of the South. In as much as the former does not understand
the latter, the, there will be absolutely no restituted measures for climate change

A)

Permanent Sovereignty to Flexible or Dynamic Sovereignty

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The existence of approximately one hundred and ninety (190) permanent sovereign states
does not facilitate the adoption of effective measures at the international level. Sovereignty is
just like a shield to states which of course is a brilliant idea that is, for states to have the
absolute control of their own national resources, territorial integrity, government and just to
name a few. But this rigid nature of sovereignty have however, serve as major obstacle for the
ease with which environmental norms were to be penetrated into the national platforms of
states. And now this lack of effective supranational executive and adjudicating body for the
global environment is justified by valid political obstacles. It must be acknowledged that
progress has been made within the system of the European Union, the United Nations
Organisation, and the International Network for Environmental Compliance and Enforcement
and even through constitutional amendments to help lessen the strings of sovereignty to no
avail. To this effect, we cannot but say that international law is inherently weak and cannot
supply sufficient protection for the environment for one- permanent sovereignty. This
insistence on states on maintaining rigid sovereignty leads to many legal formulation
problems and an absence of implementation, enforcement or sanctions for non-compliance.
So therefore, criminalized environmental misconduct cannot be penalized because of states’
stringent measures of sovereignty. So, finally it is at this juncture that we acknowledge the
important part that is been demanded from national implementation measures.

Normally, environmental problems do not care about permanent sovereign borders. The
effects of the misusage of natural resources from one country affect the other without noticing
whether or not there was a boundary. Consequently the strict nation-state system of
sovereignty is not compatible with environmental protection. Yet, sovereignty is the weapon
and tool of states to help escape the application and strict rule of environment norms. It is at
this point that we urge the international community to take a deep look into the limitations of
sovereignty as regards the application and implementation of environmental law. It was due to
the harshness of the permanent and traditional rule of sovereignty that Principle 21 came,
even though not to abrogate the law, but to help soften it and make it more comprehensive. It
was starting from this point that the concept of sovereignty has been altered as a response to
environment concern in recent times. This principle (Principle 21) of the Stockholm
Declaration is an embodiment of the ‘harsh rights’ accrued to sovereign states. While it does
uphold sovereignty, at the same time it specifies clearly responsibilities for states that they ‘do
not cause damage to the environment of other states’. This proves to us that in as much as
states have this right of ‘sovereignty’ attached to them, they are not abstain from carrying out

84
responsibilities for which they are main causers. All these are just trying to deviate states from
the chronic idea of sovereignty to a more flexible and dynamic one which will enhance and
advance the environmental regime plausible.

Still, as Sands has commented ‘Principle 21 is the corner stone of international environmental
law’. It has tried to limit the scope of sovereignty by incorporating the much cited goal of
‘good neighborliness principle’. While only a principle it has been referred to, in the 1992
Baltic Convention, fully incorporated in the 1972 London Convention, 1979 LRTAP
convention, 1985 Vienna Convention and article 3 of the 1992 Biodiversity Convention, and
many more wholly re-enacted this principle so as to lessen the tighten grip into states and
their sovereignty. Furthermore, Principle 2 of the 1992 Rio Declaration rehearsed Principle 21
and more importantly it mentioned in the preamble of the 1992 Climate Change Convention
(CCC). The objectiveness of this Principle 21 which originated from the Stockholm
Declaration of 1972 portrays to us that it is only when states will reduce, if not considerably,
but deeply in their sovereign benefits that we can acquire a well stratified, dignified and
rectified climate regime.

In the same lane, many authors too have questioned this aspect of sovereignty alongside
international law rules. Just as our famous writer Hans Morgenthau questions the same idea
when he asked that ‘how can international law impose constraints upon nations when
sovereignty preludes sovereign states been subject to legal restraints? He then went further
to conclude that sovereignty is only compatible with a strong and effective system of
international law, but the concept of sovereignty however is very much alive and consistent
with a rather weak and ineffective legal order mainly because this sovereignty is the first and
major source or reason for that decentralization, weakness and ineffectiveness. From all
indications, Hans Morgenthau is indirectly implying that even though Principle 21 emerging
from Stockholm which was subsequently adopted by other international law instruments (both
regionally and internationally), it only seem to resolve issue at the surface level. To this light
therefore, greater institutional and ideological reforms need to be concluded for effective
protection. Institutionally, there must be a designated supranational governing force or organ
that will be able to implement, enforce and at the same time monitor the application of
climatic dispositions into national territories, while at the same time having sub institutional
organs under the auspices of the supranational body, that will be in charge of interpreting and
implementing with a clear cut follow-up of climatic dispositions in respective states.

85
Meanwhile at the ideological level, there should be a periodic forum of consciencetisation
organized by states, that will help orient states on how to shift this traditional notion of
sovereignty to a more modest, flexible and dynamic model of sovereignty which will
welcome all influential dispositions to combat climate change.

B) Some other strategy for environmental sustainability.

Certainly, it is at this stage that we absolutely recognize we have so many challenges to put in
place for the realization of a clear cut and substantial environment administration. The most
pressing challenge in this regard is to ‘strengthen the social, economic and technical resilience
of the poorest and most vulnerable against extreme climatic events. The priority must go on
those countries that are climatically most vulnerable as well as economically impoverished
and therefore unable to ‘cope’ and ‘adapt’ with sudden significant climatically induced
disasters. And it is this stage that the meaningful participation of the North has to be rectified
and felt but if however they remain quiet and uninterested, the developing countries can now
seize the opportunity to change the terms of the discussion and of the regime by reopening the
question of regime architecture, of investment in capacity building (adaptation), of historical
responsibility, of equity in climate change policy and of course meaningful linking of
sustainable development policy to climate change policy .122 Furthermore talking about
sustainable development in view of developing countries is more complex and sophisticated.
As per Alan D. Hecht in his famous article ‘The Traids of Sustainable Development;
Promoting Sustainable Development in Developing Countries’123, the ability of developing
countries to practice sustainable development is affected by many factors, three of which are
defined in his didactic article and these three factors can make the concept of sustainable
development a more achievable goal.

The first is, there should be domestic policy actions with steps taken towards creating and an
open and free economy. Additionally, there should be sound and enforceable environment
policies, and most importantly public participation in decision making.

122
See Banuri and Sagar 1999
123
US Environmental Protection Agency (EPA)(1989-present)

86
The second, there should be elaborative and simplified financing policies of the bilateral and
multilateral lending institutions.

And the third, even though not the least, there should be an active involvement of private
sector investment and a clear technology development in climatic regime. The interactions of
these factors form a trait for sustainable development. This article discuss these factors and
offers recommendations for furthering a positive relationship among them in promoting
sustainable development in developing countries.

From the look of things without a strong and multifaceted action by every person, the
biosphere may become unable to sustain human life. At the least, coming generations will
suffer deprivations and hardship unless current patterns of production, consumption and waste
management are dramatically and pragmatically altered. Sustainable development needs to
become the watchword and policy of all public agencies and officials and the responsibility of
every person. Certainly, our scientific piece will be very inadmissible if a set of proposition
are not tabled to aid channel and urge the international community to the right direction.
However optional, it will be organized in two sections. Section I reviews some of the
fundamental principles and approaches of permanent sovereignty which have been a major
political stumbling block to the environmental infiltration in the society, and focuses on a shift
from permanent sovereignty to a more flexible and dynamic sovereignty that would
incorporate principle 21 of good neighborliness as was stipulated in the Stockholm conference
of 1972. Meanwhile, section II will be focusing on some other proposition but will be trying
to reconcile the conciliation between the necessity of development and other exigencies for
the preservation of the environment or nature

SECTION II

OTHER FORMS OF PROPOSITIONS

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A shift from permanent sovereignty does not absolutely cures the pandemic of the vast
environmental problems. Climatic problems need a recollection of many principles and
actions for there to be a somewhat appropriate solution to the rapid growing environmental
problem. It is in this light that we try to formulate some other propositions to help curb the
rising environmental problem. To this light we will try to reconcile the various themes that
run through the center of environmental law.

Paragraph

The Necessary Conciliation between Necessity of Development and the Exigencies of

Environmental Preservation

Development is one concept very vital to the less developed and developing countries. And
they don’t seem to let loose their processes of development in compromise of climate change,
but now we are trying to portray that, even though they have to continue with their
developmental plans, they will have to now do it while considering the dangers it probably
might cause on the future generations. They have to foster development no doubt without
necessarily obstructing the smooth functioning of the ecosystem in particular and the
environment in general. So in this view, we will be analysing while proposing measures
which we think might be followed to help assist these countries in their developmental
process. Not many people realize that the processes we often use to negotiate global
agreement are as important as the technical capabilities and the scientific understanding that
the negotiators bring to the table. In fact good and qualified solutions are always unattainable
because the negotiators are not able to overcome the cultural, ideological and political
differences that divide them. A new consensus- building process is required and the
institutional arrangement on which we have relied must be changed. We also need to rebuild
productive working relationship between the developed nations of the North and the
developing nations of the South which have deteriorated markedly in recent years. The recent
and constant squabble between the North and the South makes progress on environmental
issues almost impossible. It is in this light that we will attempt some propositions in the

88
following paragraphs which will serve as guiding rules and principles to those seeking
environmental revival.

A) Compliance mechanisms must be put in place

Firstly, for there to be a systematic and somewhat achievable process of environmental laws,
there should be an effective implementation of, compliance with, and enforcement of
environmental law. For this to be achievable, the international communities have to promote
the effective implementation of environmental law through the participation of states in
multilateral environmental agreements. With this at hand, there will be the development of
relevant strategies, mechanisms and dignified national laws. For this to be possible, states and
other actors of international relations have to first of all identify the underlying causes of non-
compliance. By doing this they will impliedly improve the effectiveness of both domestic and
international environmental law. In this light, domestic laws will not be harsh towards
internationally ratified environmental laws. In fact what we are implying is that there should
be a simultaneous understanding between the national environmental laws and international
environmental laws. Still, for there to be an effective implementation process, the
international body will need to first of all identify effective means to address major problems
faced especially by developing countries, and in particular, the least developed amongst them
and equally countries with economies in transition (EIT) in implementing environmental
laws. Those constraints that are faced by these groups of countries have to be eradicated for
there to be a smooth and effective implementation procedure of climatic laws. Still, there
must be an absolute corporation with states, particularly paying attention to means of
providing assistance to developing countries both in cash and in kind. This can be done
through the development of National Action Plans or Strategies and, where appropriate
regional action plans to assist in the implementation of national environmental laws. Another
method of providing assistance is to develop where appropriate, as advice to competent
national authorities’ model laws or any equivalent climate guidance material for the
implementation of international environmental law. These are measures through which
effective implementation can be achieved both internationally and nationally. Effective
implementation process in all needs Perfect Corporation amongst states and other actors on
international relations.

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Talking about compliance, for there to be an appropriate and good solution to environmental
problems, compliance must be able to be achievable, otherwise rules and other regulatory
instruments will be vain. Compliance can only be achieved if and only if a prepared document
highlighting compliance mechanism is produced. There should be reporting and verification
mechanisms under the different multilateral environmental agreements and in other aspects of
international law. Other means that can facilitate compliance to international environmental
law is the institution of financial mechanisms, technological transfer and coupled with other
economic incentive. This should be done alongside with a code that criminalises
environmental misconduct. With the code in question, enforcement of environmental law will
be assured and why not guaranteed. So we realized that compliance mechanisms have to be
handled with care because without compliance to international law, all text and institutions to
combat climate change will be in a fiasco.

B) Enforcement and implementation policies must be effective

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After compliance, the next is enforcement which is somehow the final stage of a negotiation
process. Enforcement is not the least important however but it is the last stage of an enacting
process. It is a stage that calls for collaboration between the various actors of international
relations. For instance, the international body will need to explore options for advancing the
effective involvement of non-state actors in promoting enforcement at the national level. In
this light, regional collaboration will be visible and hence the effective implementation,
compliance and enforcement mechanisms will be realized to curb the environmental
problems.

Furthermore, another vital proposition that is very instructive is the aspect of capacity
building-building. The major objective of capacity building is to strengthen the regulatory and
institutional capacities of developing countries, most importantly the least developed
countries and small island states, and countries with economies in transition, to develop and
implement environmental law. The strategy for this to be attained is to provide appropriate
technical assistance, education and training for to those concerned based on the assessment of
needs. This technical assistance cuts across all spheres of national life. Capacity-building can
be felt by less developed and developing countries the most. For instance, the international
body can assist in the development and strengthening of domestic environmental legislations,
regulations, procedures, and institutions. It can also arrange seminars, workshops and
exchange programs for government officials, the judiciary, the legal profession and others
concerned on environmental law and policy, all with the aim of promoting implementation of
environmental law through capacity-building. With all these at hand, the international
community will experience drastic changes in environmental problems both nationally and
internationally. Also, supranational body should provide appropriate and cognitive trainings
and support to enhance the participation of representatives of developing countries in
international meetings and negotiation related to environmental law. More so, it can be done
through the promotion and fostering of teachings of domestic, regional and international and
comparative international law in universities and other law schools, and at the same time
develop teaching materials, including information technology and other, if possible, electronic
media for sensitization. But however, this can only be done following the smooth
collaboration between government and other relevant international bodies in facilitating
educational programs in international law at a wide range. This will go a long way to
strengthen coordination amongst relevant international organization and institutions including

91
those that provide financing on educational projects related to environmental law, its
implementation and enforcement and even the underlying causes of environmental damage.
To this end, we all together say that in as much as environmental problems are eating the
fabrics of our entire society; we have however postulated some salient propositions which can
help remedy the situation at hand.

Conclusion

General conclusion

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