Learning from Intellectual Property: Operationalizing Multilateral Agreements Domestically to Protect the Environment, Part I – Georgetown International Environmental Law Review

Utsav Gupta - Learning from Intellectual Property

Learning from Intellectual Property: Operationalizing Multilateral Agreements Domestically to Protect the Environment, Part I

By Utsav Gupta, Staff Contributor

The world has witnessed an unprecedented growth in an international intellectual property regime. However, we have yet to see similar growth in an international environmental regime. In this three-part series GIELR online takes lessons from the harmonization of the international intellectual property regime and proposes applying them to the environmental context. In doing so, it performs a comparative analysis and discusses challenges. Part I discusses changes in our climate and the immediate need to develop enforcement mechanisms for environmental protection. Part II explores the history of the intellectual property and its link to free trade. Part III will discuss the application of the lessons learned from intellectual property and linking free trade to environmental law, using Mexico and the North American Free Trade Agreement (NAFTA) as case examples.

This series proposes that the development of the international intellectual property regime showcases the use of free trade as a carrot and a stick to create harmonization of the regime through multilateral treaties. The carrot is the liberalization of trade, and the stick is retaliation by reducing free trade for failing to enforce the treaty obligations. These treaties were given effect through the domestic operationalization of the agreement. Enforcement of the actual private rights created by the treaties is therefore provided domestically through the judiciaries of the member states instead of through a central international mechanism. Doing so prevents collective action problems that are otherwise evident in the current state of international environmental law.

The Climate Change Crisis

We are experiencing climate change. A recent report from the Intergovernmental Panel on Climate Change (“IPCC”) makes clear that the world is close to missing a chance to limit the global warming that is caused by human activity. The climate change risks include: coastal flooding, widespread hunger, damage to cities from flooding, and extreme storms and weather.

These changes will affect every country in every region of the world – “from the tropics to the poles, from small islands to large continents, and from the wealthiest countries to the poorest.”1 The science is clear and the debate is over. However, the gap between the science and what governments are doing remains huge. Governments around the world need to invest more in planning for climate change.

Developing countries face increased economic impacts and health risks. For example, developing countries face increased risks to important ecological resources, wetlands, forests, and other wildlife habitats everywhere. Developed countries like the United States, Canada, Japan, and the European nations will be the least affected by global warming because the economic activity most affected is agriculture.

The Current State of International Environmental Law is Poor

What can developing countries do domestically to mitigate climate change? Developing countries face similar challenges in operationalizing international patent and environmental law agreements. These countries either do not have the resources to implement law, or believe that the laws will stunt the growth of their economies.

The international community has had some success, and has protected “the atmosphere, Antarctica, the high seas, … international fisheries and global biodiversity.”2 Examples include several “significant multilateral environmental agreements enforced through international trade restrictions.”3 These include the Basel Convention, the Montreal Protocol, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”).4

However, “enforcement of international agreements … is difficult.”5 Indeed, there are very few institutions that provide enforcement of obligations.6 The United Nations Environment Program (“UNEP”) comes closest to “a central agency” responsible for the international environmental regime.7 It lacks formal powers and has little authority.8

Even should a developing country desire to enforce international obligations, they “lack sufficient financial and technical resources to develop adequate domestic legislation, set up effective administrative systems, and hire and train enforcement personnel.”9 The issue is expounded when developed countries do not “give high priority to international environmental agreements.”10

Moreover, “[i]t is not that states are intentionally violating important, substantive environmental protection rules, rather the rules are inadequate to protect the environment.”11 International environmental law is not a sophisticated regime.

International Environmental Harmonization is Possible

The issues presented above are not dispositive that harmony in environmental protection cannot be achieved between the developed and developing world. The International Maritime Organization (“IMO”) is a good example of harmonization. The IMO coordinates “national marine pollution standards and other marine environmental protection efforts around the world.”12 The IMO administers several treaties and provides “both technical and policy leadership.”13 Another example is the Montreal Protocol. This “regime was successful in linking and coordinating international goals for the gradual worldwide reduction or phase-out of ozone depleting substances production and consumption with individual national regulatory efforts.”14

“[P]rivate initiatives … have also contributed to harmonization of environmental standards.”15 For example, the International Standards Organization has promulgated the ISO 14000 family of standards. The ISO 14000 family of standards creates management tools to help corporations improve their environmental performance.16 This initiative involves the participation of over 161 countries.17

Harmonization in the international environmental regime is possible. However, harmonization must be incentivized. Linking to free trade can provide this incentive, especially for developing countries that have little short-term incentive to implement environmental protection.

Domestic Enforcement of Environmental Protection is Proven

Two cases display successful domestic enforcement of environmental rights, a useful comparison against the suffering international regime. These cases make the case that the future forward is the domestic enforcement of environmental rights. Future international environmental regime building should work towards operationalizing harmonized environmental law by domestically providing private causes of action.

The first case concerns the Indian Supreme Court. The Indian Supreme Court “used its powers of judicial review” to infer environmental rights within the Indian Constitution.18 The Supreme Court then “mandated that diesel buses be replaced with compressed natural gas … vehicles,” improving the air quality in New Delhi.19

The second case involves the Supreme Court of Argentina. In 2006, the court ordered the federal government “to clean up the heavily polluted Riachuelo-Matanza River” where millions lived.20 The Court’s decision “promoted the national government to … spend $1.8 billion over the next fifteen years to clean up the area.”21

These cases before the Supreme Courts of India and Argentina display the power of domestic judicial enforcement. While they do not implicate international law, they show how domestic law and regulation can be effective at protecting the environment even in the developing world. If more developing countries domestically operationalize environmental protections, we will begin to witness increased harmonization of environmental protection across the world.

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1 IPCC Press Release, IPCC Report: A Changing Climate Creates Pervasive Risks but Opportunities Exist for Effective Responses (Mar. 31, 2014).

2 Charles R. Fletcher, Greening World Trade: Reconciling Gatt and Multilateral Environmental Agreements Within the Existing World Trade Regime, 5 J. Transnat’l L. & Pol’y 341, 345 (1996).

3 Chantal Thomas, Should the World Trade Organization Incorporate Labor and Environmental Standards?, 61 Wash. & Lee L. Rev. 347, 348 (2004).

4 Id.

5 Fletcher, supra note 2, at 345 (footnotes removed).

6 Thomas, supra note 3, at 352.

7 Id. at 353.

8 Id.

9 Vandana Date, Global “Development” and Its Environmental Ramifications – the Interlinking of Ecologically Sustainable Development and Intellectual Property Rights, 27 Golden Gate U. L. Rev. 631, 656 (1997).

10 Id.

11 Mary Ellen O’Connell, Enforcement and the Success of International Environmental Law, 3 Ind. J. Global Legal Stud. 47, 54-55 (1995) (citations omitted).

12 Tseming Yang & Robert V. Percival, The Emergence of Global Environmental Law, 36 Ecology L.Q. 615, 638 (2009).

13 Id. at 639.

14 Id.

15 Id.

16 Id. at 639-40.

17 Id. at 640.

18 Tseming Yang & Robert V. Percival, The Emergence of Global Environmental Law, 36 Ecology L.Q. 615, 634 (2009).

19 Id.

20 Id. at 634-35.

21 Id. at 635.

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