Soft law regards to international norms that are deliberately non-binding in character, but are of great legal relevance. This has unique policies that lie between law and politics. Noticeable examples include resolutions by international organizations and global plans of actions of conduct. Soft laws operates under a different model from “hard law” that is associated with legally binding obligations. Furthermore, soft laws are characterized with less degrees of precision when compared with hard laws. Some scholars argue that soft law is ambiguous because its legal effects and its implication is often difficult to identify. Soft law mainly constitutes various part of the modern law-making process. International environmental regulations indicate a successful application of the soft law. Scholars believe that soft law outweighs the classical and familiar legal categories of law that form a platform of international regulations. Soft law is associated with various concerns; however, it has strategic mechanisms for imposing its proposals. The law is primarily structural in nature because it includes the existence and development of an organized network of permanent institutions at international and regional levels. Rio+20 conference provides a practical example of emphasize of soft law in the international environmental regulations. Studies indicate that the Rio+20 seminar on environmental sustainability did not create any successful agreements or commitments; however, it provided a global platform for discussing demanding issues in the effort to secure international sustainable development.
Inhaltsverzeichnis
Introduction
Preference of the soft law instruments in international environmental regulations
The Rio+20 and the establishment of International environmental laws
The Rio+20 provisions in relation to Soft law
Bibliography
Introduction
Soft law regards to international norms that are deliberately non-binding in character, but are of great legal relevance. This has unique policies that lie between law and politics. Noticeable examples include resolutions by international organizations and global plans of actions of conduct. Soft laws operate under a different model from “hard law” that is associated with legally binding obligations. Furthermore, soft laws are characterized with less degrees of precision when compared with hard laws. Some scholars argue that soft law is ambiguous because its legal effects and its implication are often difficult to identify. Soft law mainly constitutes various parts of the modern law-making process. International environmental regulations indicate a successful application of the soft law. Scholars believe that soft law outweighs the classical and familiar legal categories of law that form a platform of international regulations[1]. Soft law is associated with various concerns; however, it has strategic mechanisms for imposing its proposals. The law is primarily structural in nature because it includes the existence and development of an organized network of permanent institutions at international and regional levels. Rio+20 conference provides a practical example of emphasize of soft law in the international environmental regulations. Studies indicate that the Rio+20 seminar on environmental sustainability did not create any successful agreements or commitments; however, it provided a global platform for discussing demanding issues in the effort to secure international sustainable development. The conference proposed various soft law related strategies for promoting a healthy world. Examining the context of Rio+20 strategies could be effective in describing how international environmental law is dependent on soft law instruments.
Preference of the soft law instruments in international environmental regulations
The “UN family” of institutions has spearheaded legislation and adoption of international environmental regulations that inclines toward the dimension of soft law. These institutions provide the global community with a standing structure of organization that controls permanent and ongoing political, economic and essential negotiations among the member States of the international community[2]. Moreover, the important role of non-governmental institutions offers an effective complement to the present intergovernmental framework by creating a dynamic inter-state diplomacy and global public opinion. Environmental strategists have opted for soft law because of the diversification of the components of the world community. The need of including underdeveloped countries on the international environmental plans has made it necessary to adapt and re-examine the diverse international traditional norms that had not been elaborated when these countries were not part of the global environmental protection team[3]. Furthermore, these new states have teamed up to lobby for the utilization of “soft” instruments like resolutions and recommendations of global bodies with the intention of adjusting various regulations and principles of the global legal order[4]. The underdeveloped and developing states prefer soft law regulations because they seem friendly especially when compared with the hard law principles.
Another factor that has made environmental legal experts prefer the concept of soft law includes the rapid evolution of the global economy and increasing state interdependence. The strategy has also been encouraged by the development of new field of practices created by the endless development of science and technology. These situations have highlighted that the environmental law demands a versatile scheme in order to realize its objectives. This is because the phenomenon demands timely creation of new disciplines of international law that are flexible and applicable to each level of achievement attained from technological advancement. Consequently, international law associated with the protection of human environment present a legislation section area in which soft regulations have dominated. Mceldowney and Mceldowney argue that the present body of global environmental law has entirely emerged from the principles of “soft” norms[5]. Particularly, these regulations emphasize a broad-spectrum of sociological and juridical concepts that align with the idea of “soft” law. For example, the Rio+20 scheme prioritizes some soft ideologies proposed by the 1972 Stockholm Declaration that has informed UN conferences on the Human Environment. This includes establishing environmental programs that encourage community participation. From the formal perspective, environmental regulations are mainly non-binding resolutions. However, many of their principles rely upon the idea of governments justifying their legal rights and duties. Consequently, provisions that are based on such undertakings have informed the Rio+20 guidelines for ensuring effective protection of the environment[6].
The Rio+20 and the establishment of International environmental laws
The Rio+20 conference held in June 2012 targeted securing special political commitment to sustainable development, examining the progress and remaining gaps in the adoption of proposes of main conferences on sustainable development and discussing emerging challenges. The conference mainly concentrated on the significance of developing a green economy by prioritizing sustainable development and minimizing poverty. Furthermore, it explored the need of developing institutional frameworks that could foster sustainable development. The conference received proposals regarding establishment of sustainable economies from diverse sources that included the corporate world, local authorities, NGOs, trade unions, scientific and technical community and indigenous people among others[7]. All these stakeholders were provided with the opportunity of sharing their views and presenting recommendations that could inform the final document. Besides describing the importance of green economy and proposing for the establishment of new institutional strategies for sustainable development, the Rio+20 plan explored other concerns including energy, oceans and cities. Interestingly, the policies and recommendations aimed at promoting the proposed strategies present a unique dimension of the concept of soft law.
As an effort towards empowering international environmental regulations, Rio+20 proposed for the need of strengthening the United Nations Environment Program (UNEP) by encouraging universal membership. This voluntary plan provides evidence of the application of the soft law strategy in global environmental law. This is because the strategy did not oblige countries to enrol in the program; instead, the program encouraged only interested UN member countries to participate fully in strategic activities for protecting environment[8]. Furthermore, Rio+20 plan emphasized the need of establishing a high-level environment protection forum that builds upon and reinstates the Commission on Sustainable Development. This forum would be effective in addressing challenges associated with the adoption and implementation of the proposed environmental regulations. This would provide stakeholders with free ground for presenting their concerns toward the proposed provisions that would develop a framework of environmental law.
Another strategy of Rio+20 highlighting the reliance of global environmental law on soft law tools includes the proposal of calling for an inclusive, intergovernmental procedure to formulate Sustainable Development Goal (SDGs) to develop quantifiable goals for a sustainable, organized and coherent post-2015 plan. The concepts of inclusiveness and interrelations align with the soft law’s ideology of implementing law by utilizing relaxed measures. This proposal ensures that the global fraternity occupies a significant position in the law making process. This is because countries are allowed to set goals that they consider effective in establishing a sustainable environment. This enhances commitment and compliance because countries have high chances of respecting self-set regulations or strategies. This contrasts with the ideology of the hard law that imposes strict regulations on entities while providing them with limited options of affecting legislation procedures.
The plan has also established international environmental laws by launching a framework of actions for considering effective mechanisms from integrating environmental and social components into national measures by surpassing the present measures of Gross Domestic Product (GDP). Approaches toward developing global environment law have prioritized communal or joint interventions the implementation of the protective strategies. By integrating environmental laws in the administrative system of nations, the plan has ensured that the each country is working towards realization of its objectives. In order to foster such a situation, Rio+20 strategies engage in persuasive advocacies that make the global fraternity value the need of observing environmental regulations. Furthermore, the strategy has established a reward plan that encourages global countries practice environmental law.
Furthermore, the Rio+20’s effort of extending actions on the eradication of harmful fossil fuels subsidies beyond the G-20 by asking other nations to reduce inefficient subsidies highlight the reliance of environmental regulations on soft law instruments. The summit argued that the subsidies especially the ones for fossil fuels promote destructive consumption, distort markets and challenge investment in clean energy while acting against efforts of dealing with climate change. The documents identified that only 8% of these subsidies benefited the poor population. Surprisingly, some nations spend more on fossil fuels subsidies than they do on other sectors such as education[9]. Consequently, the summit was convinced that minimizing fossil fuel subsidies would provide significant environmental benefits and help the global community save money that would be used in social and environmental protection and investments. Although environmental legal experts understand the significance of minimizing the release of harmful substances to the environment, they have not advocated for hard regulations when establishing the solution to the challenge. Environmentalist and policy makers have emphasized legislations that encourages entities to care for the environment instead of concentrating on imposing penalties to those who violent environmental regulations[10]. Particularly, global environmental protection strategies advocate for the concept of excellent corporate social responsibility (CSR).This principle encourage entities to be accountable by ensuring that they are sensitive on the consequences of their activities to the environment. This demands entities to present high levels of commitment in managing their waste products[11]. Consequently, the strategy has popularized the idea of sustainability through effective exploitation of natural resources. The proposed sustainable exploitation of resources includes promoting sustainable fisheries, elimination of destructive fisheries subsidies and protecting marine environment. These strategies are supported by the consideration of the great importance of oceans. The summit argued that unhealthy fisheries subsidies result to overfishing including illegal and unregulated fishing. The strategy has been effective in protecting environment by reducing excessive exploitation of resources and contaminations[12].
Rio+20 has also formulated provisions that encourage the international community to participate in cooperative global study on ocean acidification. Furthermore, most of environmental regulations based on the Rio+20 objectives have presented commitment to adopting the 10-year plan for sustainable production. This is a unique multi-stakeholder voluntary partnership scheme[13]. International environmental law provides strategic guidelines for ensuring sustainable production within the global community. This is because the experts involved in the formulation of these laws believe that production is an important aspect to consider when designing environmental regulations. This is essential considering that production is associated with the release of materials such as emissions and hazardous waste products. It is apparent that a community that has healthy production mechanisms is likely to have clean environment. This highlights a silent application of tools of soft law in the environment protection plans[14].
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[10] M., John, and Mceldowney, Sharron, Environmental Law (New York: Longman, 2010).
[11] Richardson, Benjamin, and Woods, Stepan, Environmental Law for Sustainability (Hart; Oxford, 2006).
[12] Moral, Soriano, “Environmental ‘Wrongs’ and Environmental Rights: Challenging the Legal Reasoning of English Judges”, Journal of Environmental Law, 13/3 (2001) 297.
[13] N., Ved, and Georg, Pring. International Environmental Law and Policy for the 21st Century (New York: Hart Publishing, 2012).
[14] P, Birnie, Alan Boyle, and Catherine, Redgwell, International Law and the Environment (3rd ed.) (Oxford: OUP, 2009), Chapters 1-4 passim