Basic issues in international environmental law - Introduction to International Environmental Law - page 13

then implements the treaty through legislative acts (usually directives), which
are then implemented in the various member states under domestic law.
For an individual offi cial, there is a great responsibility in applying an inter-
national agreement. If a ministry in state A contacts a fellow party to an agree-
ment, state B, to discuss a case of pollution damage potentially caused by that
state, it is a challenging situation for offi cials in state B, as the reputation of
their state in the international community is at stake. 14
An interesting older example of the pressure to comply with international envi-
ronmental law can be seen in the case of the Enskeri , a Finnish tanker. Neste
Oy's tanker the Enskeri was on its way to dump a large amount of arsenic on the
high seas in the southern Atlantic in 1975. The matter was publicized at a time
when the UN Convention on the Law of the Sea was being negotiated, and
it aroused an enormous spate of criticism against Finland, as the operation was
probably against Finland's international environmental obligations. As a result,
Finland stepped back from the dumping. 14
The question of how states' compliance of international environmental treaties
could be improved has been the subject of much scholarly debate. The
so-called facilitative school argues that contracting parties to an international
environmental treaty should be aided and assisted by the treaty community to
meet their obligations. Underlying this approach is the presumption that states
do not intentionally breach their treaty commitments, but they do so rather
because of lack of resources or knowledge. Downs 15 and his colleagues in the
enforcement school counter this by arguing that international environmental
treaties may well be observed primarily because the obligations they establish
are so weak (such as those established by the Convention on Biological
Diversity). Their argument is that when international obligations start to hurt
(so-called deep obligations) states' own primary interests, they will no longer
observe these treaties. 16
Both schools therefore argue for different approaches for the observation of
treaty regimes (even those treaty regimes that lay down deep obligations) in
order to make sure that treaty obligations are respected and observed. The
facilitative school seeks to encourage treaty parties to focus their efforts in
assisting those states that have problems in complying, and to only penalize
them as a last resort. Since the enforcement school presumes that states violate
deep commitments intentionally, they argue for treaty regimes to establish
strict compliance committees with the authority to punish any violations,
thereby retaining the trust of the parties that do abide by the terms of the
treaty.
As we will see in this topic, it is the facilitative school that has had the most
infl uence on how the treaty regimes try to make sure that their obligations are