Enforcement of International Environmental Law : the Kyoto Protocol

Shalini Prakash    shalini@sdalt.ernet.in

Individuals and countries abide by laws for their collective well being and have been in existence for many years.  However, formal international environmental laws have come into existence only during the mid-nineteenth century, with conservation laws for wildlife (fisheries, birds and seals) and conservation of the rivers and seas.  These laws were a result of human impacts on nature and the environment.

The next phase in the development of an international environmental legal regime began with the creation of the intergovernmental institutions like UN and specialized agencies in 1945.  During this phase, many international organizations emerged at the regional level and countries began to address environmental problems at the global level. In the late 1960s, there was a significant increase in the number of multilateral international environmental agreements.

The modern international environmental regime emerged roughly in 1972, when countries gathered for the UN Conference on the Human Environment in Stockholm where the United Nations Environmental Programme (UNEP) was established. One major outcome was the “Stockholm Declaration”, which has served as the basis for the subsequent development of the international environmental law, such as bilateral and multilateral conventions, treaties and agreements.  Also during this phase, many conferences and negotiations took place, such as negotiations for the World Heritage Convention and the Convention of International Trade in Endangered Species.

At the Earth Summit in Rio de Janeiro in 1992, the United Nations Framework Convention on Climate Change (UNFCCC) was the centre piece of global efforts to combat global warming. It also has been one of the international community’s most essential tools in the struggle to promote sustainable development. A great deal has been accomplished since Rio — but the most difficult decisions still lie ahead.

Enforcement of international Environmental laws

International environmental laws are generally initiated as soft laws that are not binding per se but play a vital role in formulation of international environmental rule-making. Soft law sources point to the likely future direction of formally binding obligations by indicating acceptable norms of behaviour.  They also facilitate “codification and progressive development” of rules of customary international environmental law, which forms treaties and agreements at bilateral and multilateral levels.  Sometimes, treaties and agreements remain at the soft law stage as a valuable instrument for enhancing or supplementing rules of international environmental law within the treaties and agreements.

There are many principles which form the basis of the international environmental laws. The Principle of State Sovereignty, which is core to any international environmental law, states that: “The country has sovereign rights over the natural resources of its territory.” Other principles include The Precautionary Principle; The Principle of Preventive Action; The Principle of  Intergenerational Equity, which means that as the members of the present generation, we hold the earth for the future generation; The Polluter pays Principle; The Principle of Sustainable Development, which is one of the widely accepted principle in most of the environmental treaties;  and the Principle of Common But Differentiated Responsibility, which is present in the UN Framework Convention on Climate Change.

The enforcement of international environmental laws has been enforced through diplomatic channels and intergovernmental institutions like UN. Enforcement also depends on domestic pressure, supervision and application of international rules before domestic courts and administrative, yet judicial institutions.

The influence of various non-governmental organizations (NGOs) in the field of environmental law and policy has been manifested in several treaty negotiations, where their participation has resulted in stricter rules and the acknowledgement of new progressive notions. NGOs also play an increasing role in the implementation of international agreements and treaties by acting as watch dogs with respect to policy makers.

The Kyoto Protocol

During the Conference of Parties 3 (COP 3) in 1997 more than 160 nations met in Kyoto, Japan to negotiate binding limitations on greenhouse gases for the developed nations, pursuant to the objectives of the Framework Convention on Climate Change of 1992. The outcome of the meeting was the Kyoto Protocol, in which the developed nations agreed to limit their greenhouse gas emissions, relative to the levels emitted in 1990. The United States agreed to reduce emissions from 1990 levels by 7 percent during the period 2008 to 2012 but US later did not ratify the Protocol. It is important to note though that in 1909, Water Boundary Treaty between United States of America and Canada was the first one to commit its parties to prevent pollution.

To come into force, the treaty must be ratified by enough industrialized nations to account for 55 percent of carbon emissions in 1990, Kyoto’s baseline year. The US withdrawal put its leading 36 percent share off limits, making participation by the other major players even more important. Russia, accounting for 17% of 1990 emissions, holds the second place.

The US withdrawal from international negotiations over carbon emissions dealt a blow to the Kyoto Protocol that many thought might be fatal. However, Russia has emerged as an unlikely saviour. The only impediment to the Kyoto protocol entering into force now is the Russians. The only global agreement to save climate, which has been ratified by 110 countries, is still in limbo. At the end of 1997 in Kyoto, no one could predict that only Russian ratification would block its entry into force, or that the fate of the protocol would still be uncertain, even in mid-2003 after it had been ratified by 110 countries.

Without Russia, the Kyoto protocol cannot enter into force, assuming the US does not change their position. Global efforts to combat climate change will be undermined for at least 5–10 years; and business confidence in carbon markets will be eroded. This means that the rapid promotion of renewable energy technologies and energy efficiency techniques expected will also be hampered.


So far, the world community has accepted approximately more than 870 international legal instruments that have one or more provisions addressing environment and nature, which includes bilateral and multilateral instruments (binding and non-binding). Therefore, it can be concluded that the situation is not all that gloomy and the world community is aware of the dangers from environmental degradation.

Russian reaction on the ratification of the Kyoto Protocol has been controversial and incomprehensible so far. It seems that the Russian position is unpredictable and subject to sudden change, so they may ratify the Kyoto Protocol.

The reason for non-enforcement of such a vital environmental treaty lies in the failure of basic principles. The Kyoto Protocol is based on The Principle of Common but Differentiated Responsibility, which has developed the application of equity. But the very principle has not been accepted by the major contributors to the greenhouse gases causing global warming, like US and others.  Hence, equitable distribution and acceptance of the responsibilities has been absent from the Protocol, which is the main reason for the non-enforcement of Kyoto Protocol.

There is an imbalance in the distribution of world economic and political power and this has influenced inter-governmental institutions to a considerable extent. These institutions play a vital role in the enforcement of any environmental treat; hence this also is one of the major reasons for the non-enforcement of Kyoto Protocol. q 

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