SAINT LOUIS UNIVERSITY

SCHOOL OF LAW

SUB
MITT
ED
BY

RYA
N
EM
MA
NUE
L S.
MA
NG
ULA

The Effectivity of International Environmental Law

I. Introduction
The command and responsibility to take care of the environment
began as early as the story of how God created everything. God created man
in his own image and likeness. After creating them, he said to them that he
is putting them in charge of everything. Thus, Man is not only created in the
image and likeness of god, man was also created to become the stewards of
the earth and everything inside it.
Still, the first instance of the man experiencing the wrath of nature
was recorded in the bible when God used the great flood to basically redo
everything and start all over again. God always used the nature to convey
his message to his people. He uses the lightning, the fire, the wind, the
animals, etc to show the people what he wants.
God also used the earth to create man and that unto dust man must
return which means that nature or the environment plays and important
part in the life of every person. Basically, we get our needs in nature. They
also said that man needs nature to survive but nature does not need man in
its survival.
In our time today, we are again experiencing this cycle. Reality would
tell us that man is supreme over nature. We would want that nature would
be under our discretion. We see to it that nature would be subservient to our
wants. This is the frightening part of reality. Mans seeming control over the
environment transformed him into a mad scientist which gives him a
mindset to exploit everything around him and to exploit it which would
eventually lead to its destruction.

Our taste for affluence is insatiable. As Mahatma Gandhi put it, "Earth
has enough to satisfy every man's need, but not every man's greed." From
1970 onwards, the world has been in an ecological overshoot; our demand
on environmental resources is exceeding the earth's supply capacity.1
The obvious destruction of the earth is very alarming. Because of such
destruction, we are experiencing unprecedented events in human history.
Storms are stronger which causes our tracking system inutile; earthquakes
are more unpredictable; and the glaciers are melting very rapidly.
Imagine a world in which environmental change threatens peoples
health, physical security, material needs and social cohesion. This is a world
beset by increasingly intense and frequent storms, and by rising sea levels.
Some people experience extensive flooding, while others endure intense
droughts. Species extinction occurs at rates never before witnessed. Safe
water is increasingly limited, hindering economic activity. Land degradation
endangers the lives of millions of people. This is the world today.2
The call to preserve the environment reached its peak in the aftermath
of the Second World War. The rise of the nuclear age introduced fears of a
new kind of pollution from deadly radiation. The environmental movement
gained new momentum which warned about the agricultural use of
synthetic chemical pesticides.3 After the 1960s, a new phenomenon on the
field on environmental law emerged which was embodied in the United
Nations Conference on the Human Environment or commonly known as the
Stockholm Declaration of 1972. It contained 26 principles which called
1 http://greenliving.lovetoknow.com/How_Do_Humans_Affect_the_Environment ,
accessed May 4, 2016
2 David Leary and Balakrisha Pisupati, The future of environmental law, United
Nations University, 2010
3 http://www.un.org/en/globalissues/environment/index.shtml , accesed May 8, 2014

upon the Government and peoples to exert common efforts for the
preservation and improvement of the human environment, for the benefit of
all the people and posterity.4 The Stockholm Declaration, considering the
need for a common outlook and for common principles to inspire and guide
the peoples of the world in the preservation and enhancement of the human
environment5. This declaration was considered as the guidepost which
influenced every environmental actions and programs that we have now.
The Stockholm Conference marked the beginning of the third and
modern era of international environmental law. The Stockholm Conference
set the scene for international activities at the regional and global level, and
influenced legal and institutional developments up to and beyond UNCED.
Developments in this period are of two types: those directly related to
Stockholm and follow-up actions; and those indirectly related thereto. The
period was marked by: a proliferation of international environmental
organizations (including those established by treaty) and greater efforts by
existing institutions to address environmental issues; the development of
new sources of international environmental obligations from acts of such
organizations;

new

environmental

norms

established

by

treaty;

the

development of new techniques for implementing environmental standards;

including environmental impact assessment and access to information; and
the formal integration of environment and development, particularly in
relation to international trade and development assistance. 6

4 Joaquin Bernas, Introduction to Public International Law, Rex Printing Company,

September2012, p. 323
5 https://www.wcl.american.edu/environment/iel/four.cfm, accessed May 8, 2016
6 David Leary and Balakrishna Pasupati, The future of International Environmental
Law, United Nations University Press, 2010, p. 6

Picking up on the energy generated by the Conference, the General

Assembly, in December 1972, established the United Nations Environment
Programme (UNEP), which leads the efforts of the United Nations family on
behalf of the global environment. Its current priorities are environmental
aspects of disasters and conflicts, ecosystem management, environmental
governance, harmful substances, resource efficiency, and climate change.
In 1983, the Secretary-General of the United Nations invited Dr. Gro
Harlem Brundtland, a medical doctor, master of public health and former
Prime Minister of Norway, to establish and chair a World Commission on
Environment and Development.
Dr. Brundtland was a natural choice for this timely role, as her vision of
health had long extended beyond the confines of the medical world into
environmental
Brundtland

issues

and

Commission,

human
as

it

development.

came

to

be

In

April

known,

1987,

the

published

its

groundbreaking report, Our Common Future which brought the concept

of sustainable development into the public discourse. 7
After that, the United Nations Conference on Environment and
development spearheaded another conference in Brazil. It is commonly
called as the Rio Declaration. The Rio Declaration on Environment and
Development established an equitable global partnership through the
creation of new levels of cooperation among States, key sectors of societies
and people in working towards international agreements to protect the
global environment and the developmental system.8
7 http://www.un.org/en/globalissues/environment/index.shtml, accessed May 8,
2016
8 https://www.wcl.american.edu/environment/iel/four.cfm, accessed May 8, 2016

It is not only the Rio declaration which was important during this
conference. It also created the Climate Change Convention which was
important in the creation of the Kyoto Protocol and the Paris Agreement.
There was also an agreement to battle activities on the land of indigenous
peoples that can degrade their environment which may be considered as
sacred or which may be culturally important to them. Lastly, to ensure the
call to practice sustainable development, the conference also created the
Commission on Sustainable Development.
The Stockholm Declaration and Rio Declaration were just declarations
similar to the UDHR. While it is true that they are only considered as soft
laws, these declarations manifest the true intention of the international
community to protect and conserve the environment not only for present
purpose but also for future generations.
This

is

the

thrust

of

Sustainable

Development.

Sustainable

Development is development in a manner and according to the methods

which do not compromise the ability of future generations and other states
to meet their need.9 This ideal is something which every people look
forward to. If this ideal is strictly followed, maybe, we are not experiencing
environmental problems that we have now. If only every person knows how
to use the environment responsibly, maybe, we still have a beautiful
environment to live with.
Thus, this failure makes me think of the effectivity and efficiency of
International Environmental Law. In terms of complying with the Stockholm
declaration and Rio declaration and all the subsequent treaties to them,
where are we now in terms of protecting and preserving the environment?

9 Bernas, Introduction to Public International Law, p. 322

What have we done to contribute to this Sustainable Development? This

paper, then, wishes to examine what ails International Environmental Law in
terms of enforcing its principles and agenda.

II. Body
Despite the noble intention of the International Community with regard
to the protection and preservation of the environment, why is it that our
environmental condition is worsening? Why is it that despite the voluminous
amount of treaties and agreement, it is as if we cannot feel their effects?
Despite

the

proliferation

of

international

environmental

agreements,

environmental degradation has continued and new environmental challenges

have continued to emerge.10
The greatest challenge that the International Environmental Law is
facing is the continued rise of climate change. It is the greatest threat
against all living things. The most affected area of this climate change will be
the poor and developing countries. Climate change is the guiding post of
International

Environmental

Law;

the

actions

of

the

International

Environmental Law is receptive to the developments of Climate. Still, despite

these action, Climate change is affecting the earth unprecedentedly.
This paper, as stated earlier, wishes to examine why International
Environmental Law is seemingly ineffective in achieving its goal which is to
promote sustainable development and for future generations to come. This
paper will also try to provide what solutions can be done to boost the
effectivity of International Environmental Law.

10 Leary, The Future of International Environmental Law, p.6

In this paper, there are three reasons that will be cited in assessing the
effectivity of International Environmental Law. The first reason is treaty
congestion;

second

is

the

failure

to

connect

the

relationship

of

environmental issues with that of human rights; lastly, cooperation and

implementation.
Treaty congestion is the first reason for the seeming ineffectiveness of
International Environmental Law. As Edith Brown Weiss would put it:
The number and variety of environmental agreements has reached the
point that some critics ask whether they may not severely strain the physical
and organizational capacity of countries to handle them. There are signs of
treaty congestion, in the form of separate negotiating fora, separate
secretariats

and

funding

mechanisms,

overlapping

provisions

and

inconsistencies between agreements, and severe demands on local capacity

to participate in negotiations, meetings of parties, and associated activities.
This affects the international community as a whole, since there will always
be limited resources to address difficult issues and some countries may
suffer particular inequities in their ability to participate effectively in new
regimes . . .with such a large number of international agreements, there is
great potential for overlapping provisions in agreements, inconsistencies in
obligations, significant gaps in coverage, and duplication of goals and
responsibilities . . . International environmental law has developed in a
piecemeal, almost random, manner . . .Treaty congestion also contributes to
significant inefficiencies in implementing international agreements. There are
usually separate secretariats, monitoring processes, scientific councils,
financing mechanisms, technical assistance programs and dispute resolution
procedures . . . Finally, treaty congestion leads to overload at the national
level

in

negotiating

and

implementing

the

agreements

Even

industrialized

states

with

well-developed

regulatory

mechanisms

and

bureaucracies show signs of being overwhelmed. As attention shifts to the

need to comply with existing agreements, the burden on the administrative
capacity of states will become more acute.11
The above- quoted article clearly shows the problem with treaty congestion.
Since the Stockholm Declaration, there are numerous treaties about the
environment and they are entered into by States. However, these States do
not only concur to one treaty, they enter into treaties which they think are
applicable to them. Because of that, they result to responsibilities which they
cannot comply with and conflicting mandates from different treaties. What
happens here is that one State was not yet able to comply with one treaty
then they will again enter into another environmental treaty. This will result
to confusion as to how to implement all these treaties which they entered
into. It is true that the main organ of the International Community is the
enactment of treaties, but because of its sheer volume, treaties lose their
essence and effectivity. As a result, there is failure of implementation of
these treaties where they only remain in papers and no real actions are
done.
The possible solution to this treaty congestion is not to totally stop
making treaties. Instead, States must carefully examine first if indeed they
need to enter into new environmental treaties. States must think if such
treaties would really benefit not only their country but the international
community as well. Clearly therefore, as new environmental challenges
arise, careful thought needs to be given as to whether new law or
institutions are needed, or whether it might be more appropriate for existing

11 Edith Brown Weiss, New Directions in International Environmental Law, United

NationsCongress on Public International Law, New York, 1995,

laws, mechanisms and institutions to be utilized or adapted to meet new

environmental challenges.12
Another solution is to revisit all the treaties that States entered into. They
must assess the effectivity of every one of them. They must also assess how
far they reached in their implementation of the treaties. After such
assessment, the States must decide or prioritize treaties which are most
beneficial and most effective to them. They must also step up the pace of
complying with their international obligations. By doing these measures, the
State can restart the running of these international legislations.
Second reason for the ineffectivity of International Environment Law is
the failure to connect the relationship of environmental and human rights
law. The way that international mechanisms deal with issues such as
environmental refugees and ecosystem rights reflects their failure to take
into account sufficiently the links with other international laws such as
human rights law.13
Human Rights and Environmental rights are interrelated with one
another. The right to a decent environment is included in numerous treaties
already enacted. Similarly, in our country, we adopted the same right in the
case of Oposa vs. Factoran Jr. wherein the Supreme Court recognized
intergenerational responsibility wherein the present generation must take
care of the environment for the benefit and use of the future generations.
Thus, Principle 1 of the Stockholm Declaration is on point when it stated
that: Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a life of dignity

12 Leary, The Future of International Environmental Law, p.7

13 http://ourworld.unu.edu/en/what-future-for-international-environmental-law,
accessed, May 9, 2016

and well-being, and he bears a solemn responsibility to protect and improve

the environment for present and future generations.
We cannot really separate human rights from that of environmental
rights. We can still say that global human rights problems are the product of
environmental problems. Climate change is already undermining the
realization of a broad range of internationally protected human rights,
primarily including the rights to water, food, health and property and rights
associated with livelihood, culture, migration, resettlement and personal
security in the event of conflicts.14 As we can see, these two are interlinked.
But why is it that despite such, people still fail to protect the environment.
The answer is that people or even the government fail to see these links.
What is worst is that they forgot these links. Failure to see these linkages
has also undermined the effectiveness of international environmental law. As
stated in the introduction, that when people exploit the environment, they
do not think of the long term effects to the world; all they think is the profit
that they can get from such exploitation and in the process people lose their
true identity.
Now, the solution that I can think in this problem is educating the public.
The Government as well as NGOs must help hand- in- hand in bringing these
linkages back to the awareness of everybody. There must be a program that
would be spearheaded by these entities that would make the people realize
that whatever we do to the environment would be reciprocated to us, one
way or another. Information regarding the environment should not be
withheld from the public. They must be available to everybody. However,
recalling these linkages is not a one- way process, but two- way. The people
must also open themselves to the possibility of changing their way of living
14 http://ourworld.unu.edu/en/what-future-for-international-environmental-law,
accessed May 9, 2016

for the environment. After all, when stability in the environment is achieved
once more, everybody will benefit from it.
Lastly,

problem

on

implementation

hampers

the

effectivity

of

International Environmental Law. For me, I see this problem as the most
pervasive of the three. It may even include the first two reasons in the
effectivity of International Environmental Law. This problem has the widest
coverage. Environmental problems transcend borders. It is not only confined
within the United Nations; it is a collective effort ranging from the lowest
person in the community to the highest person, from the poorest State to
the richest. But this collective effort is the same reason why implementation
of these treaties is a seeming insurmountable task. Environmental
agreements articulate international approaches to address environmental
challenges. There are estimated to be over 700 different international
environmental agreements, at bilateral, regional and multilateral levels. As
environmental treaties proliferate, so do the challenges of implementing
them. Most importantly, many national administrations, especially in
developing

economies,

lack

the

capacity

necessary

to

effectively

implement.15
In Public International Law, there is no Central Government, so to speak.
Membership to the United Nations is based on voluntary consent. So it is
really up to the signatories of environmental treaties on how they will
implement and enforce the same. Another effect of not having an
International Government is that treaties do not have tooth to punish
those who do not follow.
Since there is no Government to check whether these treaties are
faithfully followed, the International Community shy away already from the
15 Gregory Rose, Gaps in the Implementation of Environmental Law at the National,
Regional and Global Level, p. 6

traditional notion that States are the main actors in the International
Community. Clearly to view international relations, international policy and
international law as only shaped by the nation state is to deny the reality
that a range of non-state actors now shape world affairs and responses to
the major global environmental challenges of our times.16
Again in the words of Edith Brown Weiss:
At the same time as globalization and integration are increasing, there
is increased fragmentation within States and pressures for decentralized
decision making . . . While there is growing integration and fragmentation,
the international system is also becoming kaleidoscopic. Shifting, ad hoc
coalitions and associations, as well as individuals are becoming important
actors . . . This stage in the evolution of the international system, with its
emerging bottom-up empowerment, may be characterized as kaleidoscopic.
It is informal, and the actors and coalitions constantly change. These
developments pose challenges for the international legal system and at the
same time opportunities to strengthen and expand the foundations of
international law. International law must operate in a new multi-layered
system consisting of States, international institutions, private sector and
nongovernmental

organization

networks,

the

wide

range

of

formal

transnational bodies . . . and the new kaleidoscopic pattern of informal

coalitions and individual initiatives.17
It is easily ascertainable that the task of implementing these treaties is very
hard. The International Community recognizes this as well. As a result,
States ask also the cooperation of Non- governmental organizations,

16 Leary, The Future of International Environmental Law, p. 10

17 Edith Brown Weiss International Law in a Kaleidoscopic World, paper presented at the
Second Biennial General Conference of the Asian Society of International Law, Tokyo, 12
August 2009

transnational

corporations

and

intergovernmental

organization

in

the

implementation of treaties.
Now, the possible solutions to this problem of implementation will be
legislation, enforcement, and coordination. In legislation, it is not enough
that States will enter into treaties with other States. These States must be
able to transform or incorporate them into their legal system. They must
make laws in order for these treaties to have stricter implementations.
Framework legislation can serve to implement Multilateral Environmental
Agreement obligations in a coordinated and cohesive way. To allow for the
necessary flexibility, it usually specifies the principal concepts, obligations,
rights and duties in regard to each Convention and leaves the detailed
institutional arrangements to be specified in regulations. 18
Next is enforcement which is the natural effect of legislation. Enforcement is
'the range of procedures and actions employed by a State, its competent
authorities and agencies to ensure that organizations or persons, potentially
failing to comply with environmental laws or regulations implementing
multilateral environmental agreements, can be brought or returned into
compliance and/or punished through civil administrative or criminal action.

19

This is what States must do in order that their treaty obligations will be
complied. Their government must establish schemes to ensure faithful
compliance.
A State implements an international norm at the domestic level in
three phases: first, by adopting national legal measures; second, by
enforcing them; and third, by reporting on the implementation measures.

18 Rose, Gaps in the Implementation, p. 8

19 Rose, Gaps in the Implementation, p. 9

National legal measures might include enacting legislation, formulating

policies or administering resources.20
The obvious mode of enforcement is resort to the judiciary. Domestic
courts already enforce a significant portion of international law. The idea of
expanding the use of domestic courts for international environmental law
enforcement against citizens and governments of other countries is a more
recent and interesting concept. The use of domestic courts makes particular
sense in the environmental area because domestic courts tend to focus on
the most common polluters-- individuals and corporations. The courts' clear
authority over assets and persons is necessary for successful enforcement.
Most courts can issue injunctions which may prevent environmental damage
before it occurs.21
Lastly, there is also a need for coordination among State- signatories.
It was already discussed earlier that these treaties overlap one another so
there is a need for those responsible to promote efficiency and avoid wasting
time and effort in the implementation of their obligations.

Effective

enforcement of environmental legislation is contingent upon the availability

of adequate staff and financial resources, the administrative and political will
of the enforcement agencies and the level of awareness of environmental
laws. It is common, however, to find situations where responsibility for
enforcement of laws is divided amongst a number of government agencies
that pursue conflicting interests, thereby delaying or forestalling the
implementation of these laws. The sectoral approach to environmental
management has had the effect of diffusing power and responsibility across
diverse government departments (and in certain cases, local authorities)
20 Rose, Gaps in the Implementation, p. 8
21 Mary Ellen O Connell, Enforcement and Success of International Environmental
Law, p. 57

without any mechanisms for coordination. Jurisdictional overlaps and

conflicts

have

implementation

inevitably
of

arisen,

sustainable

inhibiting

development

not

only

policies,

the
but

effective
also

law

enforcement. These major practical problems result from the difficulties in

establishing an effective system of control and mechanisms to enforce the
law.22

III. Conclusion
To recapitulate, the need to address environmental problems is very
imminent. Climate change damages every facet of life here on earth. The
intention of Environmental treaties, be it Multilateral or bilateral, is very
noble. They seek to protect, rehabilitate and conserve the only environment
that we have.
International Environmental Law has undergone many phases from lip
service in Stockholm to sustainable development in Rio reflecting the
increased participation of developing countries in international diplomatic
initiatives on the environment. For the last 4 decades, there has been
impressive number of environmental agreements that many countries have
signed up to and sworn to implement the same. There are many challenges
and gaps in implementation that remain and a growing gap between
ambition and action on the ground. However, such volume may be seen to
have hampered rather than helped in realizing the aspiration of having a
decent environment to live once again.
In this paper I have enumerated three possible reasons about the
ineffectivity of International Environmental Law: a. Treaty Congestion; b.
22 Rose, Gaps in the Implementation, p. 10

Failure to link the relationship between Human rights and Environmental

Rights; and c. implementation.
In Treaty Congestion, I was reminded of the words of Cicero when he
said: summum ius summa iniuria (the more law, the less justice). Because
of treaty congestion, this results to responsibilities which they cannot comply
with and conflicting mandates from different treaties. What happens here is
that one State was not yet able to comply with one treaty then they will
again enter into another environmental treaty. This will result to confusion as
to how to implement all these treaties which they entered into. Because of
treaty congestion, treaties lose their essence and efficiency. Brown Weiss
identified that the surfeit of international environmental law could constitute
too much of a good thing and result in negative efficiency outcomes. The
problem with treaty congestion is that more environmental treaties we have
might overwhelm the States and international organizations to manage, to
implement and to comply with so many obligations particularly the new
treaty obligations. Another downside of treaty congestion is that these
environmental laws would result to inconsistent obligations, overlapping
mandates, and even duplication of norms. The solution to this problem is to
examine once more the treaties that have been entered into by a particular
State and then it must prioritize the treaties which will benefit the country
the most. As much as possible, States must avoid, in the meantime, to enter
into treaties.
In the second problem, the link between environmental rights and
human rights must be rediscovered. People think that these two rights are
separate from one another. As a result, people surmise that they can give
up one over the other. This is exactly why environmental treaties are also
not effective. People lose their identity and forget that they are the center of

human rights and eventually environmental rights. These two are actually
interconnected with one another as Principle 1 of the Stockholm Declaration
stated that: Man has the fundamental right to freedom, equality and
adequate conditions of life, in an environment of a quality that permits a life
of dignity and well-being, and he bears a solemn responsibility to protect
and improve the environment for present and future generations.
Now, the solution that I can think in this problem is educating the
public. The Government as well as NGOs must help hand- in- hand in
bringing these linkages back to the awareness of everybody. There must be
a program that would be spearheaded by these entities that would make the
people realize that whatever we do to the environment would

be

reciprocated to us, one way or another.

The

last

reason

is

the

problem

of

implementation.

In

Public

international Law, there is no government so to speak. Membership to the

United Nations is based on voluntary consent. Thus, there will be organ to
monitor the implementation of environmental treaties. As a result, the
international community will rely more on the individual efforts of every
States on how they will put these treaties into action. In turn, States cannot
also faithfully monitor the implementation of these treaties, they will rely
now to Non- governmental organizations, transnational corporations and
intergovernmental organizations. The rise of non-state actors in the
implementation of treaties is very much evident.
The possible solution to this problem is three- fold which include
legislation, enforcement and coordination. There is a need that States must
transform or incorporate their treaty obligations into domestic law. In this
way, the State can monitor their treaty obligations by imposing stricter
measure to ensure compliance. In enforcement, States must establish

mechanisms to ensure the enforcement of these treaties. The most obvious

way of enforcement is to resort to domestic courts. Domestic courts can help
in the interpretation of the international obligations of States. Lastly,
coordination is needed so that there will be no wastage of funds and efforts.
Coordination is needed so that there will be proper communication among
those responsible on how to implement these treaties.
As a final note, the call to protect the environment is stronger than
ever. With the chilling effects of climate change is very much evident, the
International Community calls upon each and every one of us to be have
collective efforts in the protection, rehabilitation and conservation of the
environment. We must remember that this is the only environment that we
have now, and this is the same environment that the future generations will
have.