Panel 2C: Enforcement of International Environmental Law
November 14, 2014
Claudia Comenarez Ortiz
University of Gent
North American Agreement on Environment Cooperation, Commission on Environmental Cooperation
2016 JD/MA Candidate
The three panelists approached the issue of international environmental law from three vastly different perspectives with each presenting different issues to be considered when seeking effective enforcement of environmental standards.
The first panelist, Claudia Comenarez Ortiz, presented on enforcement issues with regards to biosafety regulations related to the use of Genetically Modified Organisms (GMOs). While technology brings many benefits, it also can result in adverse effects. The problem with biotechnology is that the lack of immediate environmental damages makes it difficult for countries to implement effective legislation to address these adverse effects. As the environment is a public good, the damage is different than traditional damage to persons or economic interest. Consequently, as the operator has the most expertise with regards to the science behind the technology and the relevant risk assessment as well as the direct economic interest, an administrative approach to liability is most effective to apply a polluter pays principle.
The second panelist, Hugh Benevides, presented on the North American Commission for Environmental Cooperation’s (CEC) fact finding role in international environmental law. The CEC, a product of NAFTA negotiations, allows for any member of the public or an NGO to make a submission asserting that either Canada, the US or Mexico has failed to enforce its environmental law. This initiates a process whereby the state must respond and, where necessary, a factual record on the matter is established. While the system has no formal authority to enforce compliance, the body encourages dialogue on these key environmental issues and requires parties to be transparent. While difficult to draw a causal link between the CEC’s work and enforcement, there is anecdotal evidence of shifting incentives due to its work.
The third panelist, Shams Al-Din Al Hijjaji, presented preliminary findings from his research on issues of criminal liability for breaches of environmental law at the International Tribunal for the Law of the Sea (ITLOS). Looking specifically at ITLOS’ approach to issues of bond and seizure of vessel and fish, he argued that the conception of criminal liability adopted by the Tribunal differs significantly from that of national courts. ITLOS tends to adopt a much more flexible approach to granting bail and in releasing confiscated property. According to the panelist’s argument, this is a function of the state’s reluctance to having an international actor interfere into affairs of a criminal nature. States would prefer that the tribunal adopt a less intrusive approach which, it is argued, does not mirror parallel domestic criminal law procedure.