Environmental Law and IPCC Secretariat - Essay Example

Running Head: ENVIRONMENTAL LAW Environmental Law [The [The of the Environmental Law Introduction A good way to describe climate change would be a cancer that is spreading through the world affecting everything in its path. Who is to cause for such a harmful thing to all living organisms on earth? People are, and because of our fossil fuel based economies the situation gets worse every day. It is very important for law makers from countries all around the globe to participate in plans to correct the climate patterns. This problem only gets more confusing and the debates more heated than the sun because every nation state is looking out for its own interest in this matter. The economies of the world hang on legislation passed global environmental law making bodies like the United Nations (IPCC Secretariat).   Fossil fuel is what drives the global economy, everything from your car to get to work, to the transnational shipping chain around the world. Business revolves around fuel and our nations revolve around that very business to build strong financial systems. How does fossil fuel cause climate change? Well, the answer lays around particular greenhouse gases that are released into the atmosphere. Like a greenhouse these gases allow heat from the sun to pass through the ozone layer and trap infra red radiation inside the layer, causing the earth to heat up if the right conditions are met for such a thing to happen (Goldberg D. 1993, 244-51).         Climate Change happens naturally. Some factors that contribute to the earths climate change in the past deal with volcanic activity, continental drift, ocean heat exchange and atmospheric chemistry. This in relation to the global carbon cycle gives scientist and pro fuel lobbyist something to cheer about. But since man has been driving his cars and burning his refined fuels, man-made greenhouse gases have been presented to the atmosphere as well. Gases like carbon dioxide, methane, nitrous oxide and chlorofluorocarbons all have taken shelter in the atmosphere. The intergovernmental board on climate alter stated there was a "discernible" human pressure on climate; and that the pragmatic warming trend is "unlikely to be completely natural in origin." In the mainly present Third Assessment Report the panel wrote "There is new and stronger evidence that most of the warming observed over the last 50 years is attributable to human activities." These gases only make up three percent of the earths atmosphere, But that small percent can have catastrophic events on climate patterns all over the world (Intergovernmental Panel, 2004).         So far the global temperate has only risen by one degree f. This might not seem like a lot but, one degree can mean a horde of problems. Having the temperature change even that little amount can lead to problems around the world dealing with health, wildlife, our ecosystems and resources are all at risk. The Scientist at the IPCC have pointed this out using computer models that these incremental problems can add up. After the ICPP third assessment review they have pointed out ocean and sea level risings due to global warming. A three degree change over the course of 1000 years can melt the entire Greenland ice sheet and raise the ocean seven meters. Small islands and island nations might be erased from the maps! Costal and marine ecosystems will also suffer, causing harm to tourism, fisheries, fresh water and costal habitats. The hydrological cycle responsible for the placement of vital rains in places will be affected. A scientist from the IPCC said "There is the possibility that a warmer world could lead to more frequent and intense storms, including hurricanes. Preliminary evidence suggests that, once hurricanes do form, they will be stronger if the oceans are warmer due to global warming" (EPA 1).          Agriculture could be affected in the long run; more so in the arid regions of developing or less developed nations. Another factor harming food out put due to global warming is the Desertification of the soil. This could yield horrible effects to the people who use the land around the deserts due to degradation and the shifts in growing seasons, plus the irreversible effects it has on the soil in those areas. One weapon to fight carbon build up is carbon reservoirs and sinks provided by the forest and other vegetation that removes carbon from the atmosphere via photosynthesis. These forests are being chopped down and used for agriculture and fuel. The ICPP noted on this "A sustainable managed forest comprising all stages of a stand life cycle operates as functional system that maintains an overall carbon balance, retaining a part in the growing trees, transferring another part into the soils, and exporting the carbon as forest products"( (LexisNexis, 2005)).         Public health is also at risk due to Vector borne diseases like malaria. Increased heat stress and mortality from extreme weather would also be increased due to climate shifts. Problems like this effect nations on the state and local levels as well. Issues can be brought up on adjusting funding for public services to ease temperature related condtions and problems, as stated above. Soon you could have a small problem like farmers in Iowa getting malaria and having to move away because the soil output is poor and families are going broke. This could increase state and local budgets, thus putting pressure on the federal government to do something about it.         All these problems associated with global warming seem biblical on scale, the future of assessing these risks is vital to the international community. Environmental Problems dealing with global warming may seem uncertain, but regardless they are problems that can be avoided with the right implementation of regulations and laws. The ICPP is working hard to make sure that information is presented to the all the appropriate heads of state for them to make the right choices. But the right choice might concern nation A or B, not really both. Nation A might want free trade while nation B might want Nation A to reduce gases. Reaching a general understanding in vital for a treaty like this one to placed into action. This action requires the means to get the job done. And for everyone to do the right thing for the environment they have to have the capacity first to do so (Hanley. Charles J. 2004). Who is Concerned? In 1979 the WMO addressed the issue of global climate change to the world. The IPCC was set in place in 1988. Lead by the IPCC Secretariat and the WMO the IPCC job is to present information to state actors about climate change. The First IPCC Assessment Report was finished in 1990. The Report leads way to establishing the Intergovernmental Negotiating Committee for a UN Framework Convention on Climate Change by the UN General Assembly. "The UN Framework Convention on Climate Change (UNFCCC) was adopted in 1992 and entered into force in 1994"(IPCC 1). In 1990 the IPCC with materials from the Vienna Convention put together the information along with the protocols to reduce greenhouse gases. Task reports that outlay the scientific data and recommendations to be presented to the individual nations, recommendations often suited towards each class of nation (developed, less developed and such). After some work was done to correct certain obligations to nations to reduce levels of greenhouse gases the UN established a committee at the world climate conference. The cooperation committee for the structure climate convention was born and those years lead to the establish on negotiations on the matter. Talks have taken place and over time countries (mostly the European community) agreed to lower greenhouse gas emissions. Major nations who signed on and were willing to make the cuts to emissions where Germany, Japan, Denmark, Switzerland, Sweden, Australia, Austria, Canada and Norway, also lesser developing nations acknowledged that they had a responsibility also to not be major polluters like the USA. Finding the Contractual Environment The stigma between the EC and USA grew after the US declined and refused to follow the proposed timetables and goals to reduce gases. Even after many talks and negotiations the USA stood firm on its plan not to sign on due to economic forethought. The concern for many is based around the might of the dollar. The USA alone contributes greatly to this problem. The USA emits more greenhouse gases per person than any other country on earth. Alone the USA emits 30.3 percent of co2 emissions. Not far at the back is China and India with 12.2 percent, mutually are less developed nations that inside years, outstanding to augmented growth can reach even more than that number "China is taking off economically and burning a lot of fuel. India, too," said Pieter Tans, a prominent carbon-cycle expert at NOAAs Boulder lab (Hanley 1). With Industrial activity inevitably going to increase in these up and coming developing nations, like china and India are looking to further their economies and are using fossil fuels with no regard. They want to pump up their economies by increasing trade and transportation (United States Environmental Protection Agency, 2000). Thus you have more carbon dioxide and other man made chemicals from industry including HFCs, PFCs and SF6 being thrown into the atmosphere. Since the USA is fundamental to any policies that want to be addressed on the world stage it is important to understand that counties like India and China take the stand on our side by saying "If the USA, who is this big time world super power doesnt want to follow the rules, we shouldnt either" That fosters the type of non voluntary feelings towards environmental policy that G8 and other up and coming nations have already. The USA is doing a bad job of leading by example by putting its economy first and foremost when it comes to policy. The results of the framwork convetion on climate change werent a failure in light of what really got done. First the objective in article two of the convention that requires parties to the stabilization of greenhouse gas concentrations that wouldnt damage the climate system was a step in the right direction. The COP makes sure this is implemented by monitoring and evaluating parties involved. On the downside the treaty doesnt provide any legally binding obligations, just "try" to meet target goals (Keeling, 1994). The global north (or G8 body of nations) as a whole contributes greatly to the problem of global climate change. Because of our highly industrialized systems and high standard of living, we are again reluctant to change our ways when it comes to the environment. For instance in regards to the Kyoto protocol the senate passed Resolution 98, the Byrd-Hagel Resolution, which called on the President not to sign any accord or conformity in Kyoto except two situations were met. initial, the United States must not be party to any legally binding obligations on greenhouse gas release reductions unless developing country parties are necessary to get together the similar standards. Second, the President should not sign any treaty that "would result in serious harm to the economy of the United States" (B. Boer, 1994, 77-78). This undermines Treaties like the Kyoto protocol and makes in increasing hard for legislation on climate change to be signed and ratified. On the same side the global south (G88 body of nations) wants the technology transfer from the G8 countries so they can have the capacity to rid the problem. Contractual Environment The call for action began in the 1970 and carried on into 80s and 90s with UNCED calling for a convention to pull together a framework for all the countries to reduce greenhouse gases. In 1992 the structure convention on climate change was signed. This complete it probable for convention to put jointly goals to halt climate change. But who are the actors in setting up and carrying out actions to discontinue climate change? In the end global climate change will affect everybody and each nation on the planet. This raised the query of "If everyone is affected, why each nation doesnt help to solve the difficulty? The answer is rolled up by the financial impacts that following a accord like the one on climate change might associate. Institutions like the convention on climate change can only present a set of rules and laws to help govern nations from side to side a difficulty such as this. It is up to the nation to sign on and agrees to follow those rules and laws, For example, getting one hundred roommates to agree on what TV show to watch on Tuesday and Thursday nights. A difficult task in deed, but if a few roommates told the other ones that they would buy the snacks if they agreed to watch, might provide an incentive to participate (J. Cameron & R. Mackenzie). This analysis is a far cry from the vision of environmental assessment on which the federal Environmental Assessment Review Process Guidelines Order and the subsequent Canadian Environmental Assessment Act have been based. Environmental assessment in Canada was created to ensure that environmental concerns were adequately considered in decision making. Twenty years ago, the Berger Inquiry established standards for how that consideration should take place in Canadas North and elsewhere, and they have remained ever since. Berger established clearly that "environment" includes human social and cultural concerns and cannot be considered adequately without them; that all those affected by the proposal have a right to a fair hearing and to have their concerns included in decision making; and that environmental assessment must be a transparent and accessible process in which traditional knowledge and Western science join forces to produce the best possible information base for decision making. He also made it clear that none of this could be accomplished without adequate time for a thorough review (Jared Blumenfeld, 1994). Experience by environmental appraisal in Canada and somewhere else over the past two decades has established that sufficient attention to equity issues is necessary. Environmental equity ensuring that flora, fauna and the land, air and water which support them have representation at the decision-making table is generally understood as fundamental to the purposes of environmental assessment. Human equity concerns are equally important to effective, fair and efficient environmental assessment, but their role and importance has not historically been recognized. Despite some movement forward, this continues to be the case. The recently proclaimed Canadian Environmental Assessment Act requires assessment of only those human effects that result from impacts on the natural environment, thereby leaving out all direct impacts on human communities. Beyond its substantive devaluation of human community concerns, the act also has serious weaknesses in its procedures and processes with respect to human equity (Robert Housman & Durwood Zaelke, 1991). Good environmental assessment is not possible without adequate attention to three major dimensions of human equity: * Political equity ensures that those who will be affected have commensurate influence in decision making. It provides the basis for a concern with adequate community participation and an increasing interest in negotiation and other forms of decision making, creating new possibilities beyond the conflict-based win-lose options inherent in quasi-judicial hearing processes. * Economic equity ensures that those who create problems bear the costs of solving them and that benefits are fairly distributed. It has generated increasing levels of interest in monitoring, enforcement of mitigation requirements and, in the case of resource development projects, longer term biophysical and socio-economic decommissioning and site reclamation issues. * Intergenerational equity ensures that the quality of life of future generations is not compromised by decisions made today. It has stimulated interest in cumulative effects. In turn, it has become apparent that traditional knowledge is essential to adequate cumulative effects assessment in the North. Western scientific knowledge is too incomplete to give the depth and breadth of data essential, while customary knowledge provides a dependable source of nearby exact intergenerational information (Allen R. Myerson, 1994). In the 70s, many people saw the Berger Inquiry as the beginning of an era in which environmental assessment could be used to balance out the inequities inherent in large-scale resource growth projects, make sure accountability and inject a apposite tone of precaution into decision making. In the years since then, the significance of community-level participation, cooperation, monitoring, recovery, cumulative effects and effectual consideration of customary knowledge have been affirmed. Experience with the federal review process suggests, however, the Berger Inquiry may have been the high point of an era, rather than its beginning. Participants at the CARC workshop came up with a long list of concerns about the process and content of the BHP review. In the opinion of Kevin OReilly, a CARC staff member based in Yellowknife, the review was "neither rigorous nor procedurally fair." Communities were not adequately included, in part because the panel was operating with very limited time and financial resources. Among the sections of the EIS most severely criticized were those that deal with monitoring, site reclamation and traditional knowledge (C.M. Chinkin, 1989, 157). Experience to date with the BHP review raises serious questions about the state of environmental assessment in Canada. As a regulatory and planning mechanism designed to ensure fair, effective and efficient decision making, it does not seem to be working. At the CARC workshop, the general consensus was that environmental assessment is expensive, time consuming and wearing for all concerned. In the case of BHP, people correctly predicted that the panels recommendation would be that the mine should go ahead and that its report would not adequately address their concerns and interests. It is tempting to conclude that participation in the exercise of environmental assessment is simply not worthwhile. International Law as a Source of Environmental Standards Considerable support has been uttered in recent years for the growth of international environmental standards. For instance, Agenda 21, the worldwide action plan for environmental management take on at the United Nations Conference of Environment and Development in Rio de Janeiro in 1992, states as one of its exact objectives: "To promote, during the gradual growth of universally and multilaterally negotiated agreements or instruments, international standards for the defense of the environment that take into account the different situations and capabilities of countries." (Milton Freeman, 1988, pp. 54-59). Though, there is a rising body of opinion, which Agenda 21 recognizes, that international environmental standards be supposed to not be of a uniform nature. 1. International Environmental Standards Uniform or Minimum Some substantial criticisms have been leveled at the concept of uniform international standards, irrespective of whether the standards arise by way of international agreement or through a process of harmonization of national standards. Such uniformity, critics say, could work against sustainable development by forcing inappropriate priorities on developing countries. For example, developing countries do not need "high levels of environmental protection against cancer . . . at the expense of basic human need[s] such as protection from high infant mortality and rampant malnutrition." (Robert Gibson, 1992, pp. 223-55) Criticisms based on economic analysis suggest that uniform standards would not equalize the international competitive position of TNCs and would not be economically efficient. If TNCs were to face uniform ambient standards, local variables such as the level of industrial activity, its spatial dispersion, and topographical and climate conditions would preclude harmonization of environmental control costs and competitive positions. Similarly, the costs and benefits of emission and disc charge standards would vary from one country to another. Differences in national ecological principles can be necessary by arguing that the differences reproduce geographic, ecological, and demographic variations in the middle of countries and hence conflicting capacities to incorporate pollution (L.G. Smith, 1993). Environmentalists worry that uniform standards lead unavoidably to a lowest ordinary denominator result which could threaten environmental gains in a number of countries, chiefly if new free trade rules deem higher standards to be illegal barriers to trade. These concerns have prompted environmentalists to promote new approaches to environmental protection that focus on pollution prevention or waste minimization, rather than the end-of-pipe solutions which environmental standards usually entail. One response to the arguments against uniform international standards is to challenge the reliance placed on the concept of comparative assimilative capacity. As economists may consider it more well-organized for a few countries rather than others to host unclean industries and apply less severe standards, they fail to account for long-term environmental injure. "No country should have the right to degrade the environment irreversibly for future generations in the name of national competitiveness." (Thomas Berger, 1995) A refinement of the concept of uniform international standards is the concept of minimum international environmental standards. Under this approach, countries would linger free to assume additional stringent environmental standards if warranted by their exacting circumstances. The extra stringent standards could comprise measures designed to endorse pollution prevention. This modification would assist prevent the unhelpful effects of downward harmonization, at least to the degree that person nations would remain free to apply more stringent standards inside their own countries with no risking the accusation that they are in breach of free-trade rules. Smallest standards, rather than being the same, could operate on a code of mutual recognition based upon the sameness of requirements in national laws. The North American Free Trade Agreement adopts yet one more approach by requiring the parties, to the maximum degree possible, to make well-matched their own standards-related measures. mutually of these alternatives constitute examples of the harmonization approach, as distinct from direct international directive, but nevertheless offer interesting alternatives to the consistency of standards option (James B. Murphy, 2006). Even critics of uniform international standards agree that such standards are appropriate in two areas: first, with respect to merchandise standards and testing procedures; and second, where there are international externalities in the form of transboundary pollution (counting worldwide concerns such as ozone reduction and the greenhouse effect) or damage to or loss of biodiversity which is of worldwide value. Recent developments in international environmental law reflect recognition by the international community of the need for international regulation in these particular areas. 2. Prospects for the Setting of International Environmental Standards The Tufts University study revealed strong support among TNCs for international standardization of environmental, health, and safety regulations. However, it suggests that standards would have to be perceived as reasonable and enforcement would need to be even among countries in order to provide substantial benefits to TNCs in the form of a "level playing field."(123) Similar findings were reached in a major United Nations survey. "In the only statistical case complete to date on TNCs and environmental presentation, two-thirds of TNCs consideration that the UN ought to work toward standardizing national environmental rules and regulations. A greater part also felt that the UN ought to be vigorous in setting international policy guidelines." (E. Brown, C. Flavin and L. Stark, 1996) It seems clear that TNCs view the development of international environmental standards as a less attractive procedure than the standardization or "harmonization" of national environmental standards. Commentators assert that "At the same time as TNCs recognize that better environmental practices will only happen through legislation, most firms take strong public exception to international environmental regulations." (S. Buckingham-Hatfield, 1996) Thus, TNCs appear to want a level playing field but are resistant to the use of formal international agreements to achieve this goal. This attitude is attributed to a reluctance to take the lead in proposing international environmental regulations. But a reluctance to lead is not the same as a "strong public exception." The seemingly contradictory positions of TNCs probably reflect a deep-seated resistance to regulation, even where TNCs recognize that beneficial outcomes are likely. TNCs would prefer to see national laws brought more closely into line, perhaps through "soft law" mechanisms which provide guidance to states but do not entail firm obligations, rather than have standards prescribed by international agreement. The extensive promotion of "self-regulation" by corporations and individual TNCs, Coupled with some stem resistance even to certain "soft law" measures such as the draft U.N. Code of Conduct for Transnational Corporations, tourist attractions the weakness of any support alleged to exist in the middle of TNCs for the expansion of international environmental standards (International Development Research Centre, 1996). Thus in spite of the rising interest in the idea of lowest amount international environmental standards, and the precedents for international instruction where transboundary or worldwide commons issues are concerned, the realism is that the instruction of detailed growth standards for environmental, health, and safety matters through legally binding international agreements does not currently appear to have widespread governmental or industry support. Nevertheless the smallest standards approach has considerable potential and is worthy of further discussion. In particular, some closer attention could be directed to the types of standards which might be best suited to this approach. If prescribed through international agreements which are signed by and bind national governments, it would seem more appropriate for ambient standards, rather than discharge or emissions standards, to be adopted. The few existing examples of international environmental agreements in which standards of a quantifiable nature have been prescribed generally avoid discharge or emissions standards. Instead their effect on TNCs is indirect, and is felt through national legislation designed to implement targets for the reduction or elimination of emissions prescribed for the parties by the relevant agreement. Whichever approach to standards-setting is adopted at the international level, TNCs appear likely to remain beyond the reach of a comprehensive, international regulatory scheme for some time to come (Centro de Estudios, 1996). However, more limited developments in international standards-setting may be envisaged over a shorter time scale. In exacting, regional environmental structures and principles may play a important role in the growth of international environmental standards. A few regional organizations, such as the South Pacific Regional Environmental Programme (SPREP), have come out by now for the purpose of developing ordinary approaches to environmental management. Others may arise as part of latest trading blocs which might come out in the latest international climate of free trade. The European Union provides an outstanding example of this. The NAFTA Environmental Side Agreement may also provide an important precedent with respect to other, similar regional arrangements which have a free trade basis. However, the capacity of trade related environmental measures to make a positive contribution to environmental protection remains an extremely contentious question. The European Union experience suggests that as economic integration progresses within a region, relevant environmental measures also will evolve in terms of their detail and sophistication. But NAFTA may prove a failure in this regard, and clearly much will depend on the nature of the environmental arrangements which are developed in these kinds of regional trade agreements (R. Costanza, O. Segura, 1996). 3. Standardization Through the Use of Soft Law Instruments Some supporters of international regulation also attach considerable importance to the role of soft law instruments, particularly since these may be addressed directly to TNCs, unlike formal international agreements. Rather than place emphasis on legal form, it is argued that the more important consideration is the political commitment of those states who endorse particular instruments (E. Eide and R. Van den Bergh, 1996). though soft law instruments inflict no firm obligations on signatories, they may give a foundation for amalgamation into domestic law and finally attain the status of international usual law binding on all countries from side to side resulting changes in state put into practice and spoken intent. In exacting, they offer an avenue for the growth of standards in a way which could lead, from side to side their acceptance by states, to better coordination of domestic standards (Innovative Policies, 1996). A fundamental difficulty with soft law instruments is that they often constitute a compromise where widespread international consensus has not yet been reached on particular measures. They may not enjoy the support of a large majority of nations and their language may be particularly open-ended or diluted to accommodate differences of opinion. Nevertheless, soft law instruments now exist in considerable numbers with respect to environmental matters. They constitute therefore a significant avenue for the development of international standards in relation to environment, health, and safety matters. Another international law approach to obtaining uniform application of environmental standards to TNCs is to incorporate a "choice of standards" rule in international agreements. This would involve specifying the types or sources of environmental standards to be applied specifically to TNCs by signatory states. Such a possibility seems extremely slim, even in the context of a soft law approach, in light of past efforts to produce international guidelines or codes of conduct for TNCs and the current fervor for the promotion of FDI rather than TNC regulation. The draft United Nations Code of Conduct of Transnational Corporations, which was the subject of negotiation for over fifteen years, was formally abandoned in 1992 largely as a result of ongoing resistance by industrialized countries and industry organizations to elements of the Code which were perceived to have a regulatory effect. This underlines the limited capacity even of soft law instruments to achieve accountability and responsibility on the part of TNCs, and the depth of the reservations which exist within the international business community concerning any form of international regulation. In any event, the only means of giving effect to a "choice of standards" rule embodied in an international agreement would be by way of domestic legislation, which therefore raises the same issues and considerations that need to be addressed in considering the option of unilateral, domestic action. While the preceding discussion has focused on the subject of international environmental standards, since these have been at the center of the debate concerning regulation of TNC activity, other mechanisms exist which can contribute to environmental management objectives and which may warrant attention at the international level. One example is environmental impact assessment, which now enjoys broad international support in terms of its value as an environmental management tool. Another emerging tool is compulsory environmental information disclosure. The United Nations Centre for Transnational Corporations, prior to its disbandment in 1993, called for uniform principles on information disclosure for TNCs to be developed for consideration in an international agreement. An exacting complexity will be to establish consensus on the nature and reason of environmental information revelation requirements, chiefly given that there are a few important differences among the United States and European Union approaches to this topic. Conclusion Environmental assessment can and should be an excellent process for determining whether or not the outcomes of economic development are likely to be positive or negative for communities and for ensuring that environmental and human equity concerns provide the ethical base for decision making about what happens and when. The conditions for creating good environmental assessment have been well-known for over 20 years and are feasible: adequate time for review, careful and thorough information gathering and analysis, which gives full value to traditional knowledge, inclusive and accessible procedures for public participation, and clearly defined strategies for monitoring of impacts and enforcement of recommendations. 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Tanega, "Implications of Environmental Liability in the Insurance Industry," 8 JEnvl 115 ( 1996). Read More