Environmental Engineering Reference
In-Depth Information
were, though, non-binding, and so the negotiations continued to bring about a
protocol on the basis of the Bonn Guidelines. This was fi nally accomplished in
Nagoya, Japan, in the tenth meeting of the parties of the treaty system, when a
legally binding protocol 9 was accepted on 29 October 2010.
Soft-law instruments are not always just predecessors to an actual treaty
employed by states to test their readiness to commit themselves to a legally bind-
ing treaty. Many scholars consider the programme of action against marine
pollution from land-based sources 10 adopted in Washington in 1995 to be a good
example of how global environmental regulation can be based on a non-binding
soft-law instrument. The practical implementation is linked with the UN
Environment Programme (UNEP) Regional Seas Programme.
Another case of effi cient use of a soft-law instrument is the UN General
Assembly resolution of 1991 to prohibit driftnet fi shing on the high seas. A
General Assembly resolution, even if not legally binding, was well observed
by those states whose vessels had carried on fi shing with wide driftnets, which
are destructive to the ecosystem.
Similarly, many of the instruments through which international environmen-
tal law is enacted are actually non-legally binding instruments. Even if the instru-
ment itself is not legally binding, this does not mean that the adoption of the
instrument would be without legal relevance. In fact, many important develop-
ments in international environmental law have been effected via non-legally
binding instruments. Some good examples are presented by the 1972 Stockholm
and 1992 Rio Declarations, the latter of which is widely considered to be the
most authoritative codifi cation of international environmental law principles.
UNCED also produced Agenda 21, which, even if non-binding in international
law, has infl uenced the development of international environmental law.
Decisions taken during meetings of the parties to multilateral environmental
agreements have also been particularly signifi cant in international environmental
law. Even if they are not legally binding, these decisions are normally adopted
via consensus and thus exercise infl uence on the extent to which states develop
and implement the treaty regime.
Although soft-law instruments may be infl uential in changing the behaviour
of states and other stakeholders, it is important to remember that from a strictly
legal point of view they are not legally binding. They may be politically or
morally binding on states and their leaders, but not legally. Instruments endorsed
by private actors, such as the Equator Principles adopted by private banks (see
Chapter 1 , p. 26) are sometimes characterized as soft-law instruments, but they
do not create any obligations (not even political or moral) on states. 11 Even if
international treaties include very soft obligations, such as Article 8( j) of the
Convention on Biological Diversity (which we considered previously), these
remain legal obligations, the content of which may be open-ended but needs to
be determined in any case. (There are, of course, also provisions in international
treaties that are worded in such a way that does not create a legal obligation,
through the use of modal verbs such as 'should', for example.)
 
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