Introduction
The indivisibility associated with the global environment means that degradation of one of its components has a subsequent negative impact on the overall environment.[1] Protecting the environment has, over the past four decades,, become an issue of central concern among governments and the international community.[2] Efforts aimed at enhancing environmental protection have resulted in remarkable developments in international environmental law.[3] According to Sands et al., international law serves as a framework of nurturing collaboration between members of the international community in their quest to protect the local, national, regional, and global environment.[4] The numerous global conferences on the environment that have been organized have resulted in the formulation of diverse binding documents that are aimed at enhancing environmental protection.[5] Subsequently, there has been a significant increase in the number of international environmental laws.[6] There are over 1,000 environmental law instruments relating to diverse aspects of environmental protection. Amongst the areas covered are biodiversity, pollution and waste, marine, habitats, water, and heritage. Increased recognition of the importance of environmental protection has resulted in the establishment of diverse bilateral and multilateral agreements between countries. According to Sands et al., international environmental law outlines the means that global institutions should adopt in dealing with ecological challenges.
International environmental laws are categorized into either hard or soft law. According to Alam, hard laws entail legally binding and compulsory rules and regulations. Thus, hard laws make it obligatory for stakeholders to follow the hard laws. Some of the instruments that comprise international law include conventions and treaties. Usman argues that hard laws outline the consent by countries that become legally binding.[7] In the context of international law, hard law comprises customary and international agreements. Hard laws helphelp solidify the credibility of commitments that states make. Apart from restricting behavior, Sancin asserts that hard laws limit the sovereignty of a state regarding the environment.[8] Unlike thirdd laws, soft laws are comprised of non-legally binding laws and are mainly aimed at guiding policy.[9] According to Alam, soft laws mainly originate from policy dialogues and resolutions reached by various parties in international conferences. Thus, any of the ‘lawlike’ but nonbinding resolutions reached in such conferences is considered as soft law. For example, any of the documents signed by states participating in international conferences may be classified as soft law in spite of its failure ttheirtheiratisfy the requirements of a treaty. Soft laws are characterized by a relatively weaker legally binding force compared to hard laws.
In spite the degree of complexity, the principles of hard and soft laws are the same. According to Bulkeley and Betsill, one of the goals of international environmental laws is to resolve the diverse auciaploei problems that are currently being experienced[10]. Climate change ranks amongst the most challenging hard facing the contemporary global environment. Wagner and Zeckhauser are of the view that climate change has become a long-term, global, and under,tain issue facing humanity. According to Tarlock and Dernbach, the effects of environmental problems that operate in one operate might be felt in another[11]. This aspect underlines the interconnected nature of the environment. Therefore, it is imperative for governments the need to ensure that environmental laws are effective in dealing with environmental problems. This paper examines whether soft law can be applied in solving hard problems. In responding to this question, the essay evaluates the use of soft law and hard law in international responses to climate change as an international environmental problem. The analysis examines the extent to which soft law has provided an effective response to the current climate change challenges.
Discussion
Climate change poses a significant challenge to humanity not only because of its potential global catastrophic impact on ecological systems and human health but also because of the extensive human response that is required in order to successfully avert its potential harsh impacts.[12] Climate change thus constitutes a hard problem to resolve[13] (Brown 4). Considering the fact that climate change is a global problem, a global solution is necessary. Hourcade and Grubb question whether it is possible to achieve a solution on climate change if approaches to resolve does not take do account a moral and ethical approach. This assertion is underlined by the fact that climate change impacts millions of poor people who had little or no input in its occurrence.[14] Adoption of effective measures or approaches to address climate change is central in safeguarding the sustainability of the global environment. This goal can only be achieved with the integration ofthe effective international environmental laws. Nevertheless, the efficacy of soft and hard laws in dealing with international environmental problems varies significantly as evaluated in this paper.
Comparative analysis on the effectiveness of hard and soft law in solving environmental problems
Unlike soft laws, hard laws are considered to be more effective in solving environmental problems. The effectiveness of hard laws emanates from the fact that they are based on treaties and are hence binding. The treaties entail strong obligations which enhathatthenhancectiveness in limiting the party’s behavior. Considering the interconnected nature of the global environment, it is imperative for an effective approach to be adopted in resolving climate change. This outcome can be achieved through the integration of hathe head laws. The appropriateness of hard laws compared to soft laws can be explained on the basis of diverse aspects as discussed herein.
Compliance
According to Shelton, the rule of law stipulates that compliance is fundamental in order for the law to be effective.[15] In order to enhance compliance, effective measures must be adopted. Compliance is central to resolving the problems posed by climate change. The significance of compliance is underlined by the fact that the member states are compelled to behave and take specific actions in order to avert the effects of climate change[16]. Despite thEven though which soft laws that are formed require the parties to comply with the required issues, compliance is mainly ineffective because the obligations are either weak or not adhered. The fact that hard laws are based on treaties significantly increases compliance because of the obligatory nature of treaties. Even though they are not legally binding, they are ineffective in changing individual states' attitudes with regard to climate change.[17]
Compliance under hard laws has, in some instances been c, been characterized by challenges. One of the notable cases of non-compliance relates to the Kyoto Protocol, which is a classic case of hard law. The Protocol stipulates that the industrialized countries must be committed to limiting and reducing greenhouse gas (GHG) emissions. Yotova notes that the concentration of GHG is one of the major causes of climate change. This arises from the fact that the greenhouse gases result in a considerable le increase in the rate of global warming.[18] Hard laws further set up the specific rules and approaches that countries must adopt in order to address climate change. The Kyoto Protocol is further characterized by a comprehensive system to monitor the degree to which states comply with climate change. Climate change can only be addressed through a collaborative approach between global states. To achieve this outcome, the United Nations established the United Nations Framework Convention on Climate Change (UNFCCC). The role of the UNFCCC is to mediate between countries hence cul, culminating in the reduction of climate change. The Kyoto Protocol is a result of efforts by the UNFCCC. Hohmann accentuates that the protocol quantified the volume of GHG that the industrialized countries should reduce and the timeframe for achieving the set target.[19]
Under the protocol, the industrialized countries were required to reduce their combined GHG emissions by 5.2% between 2008 and 2012.[20] Individually, countries such as Japan and the US were required to reduce greenhouse gas emissions by 7% and 6% respectively. However, critics argue that the timeframe within which countries are required to achieve the set target is considerably short. Thus, the possibility of hard laws resulting in meaningful long term lg-termlong-term climate change is considerably low. Moreover, there is minimal incentive for countries to pursue long-term measures to reduce climate change under the hard laws. Thus, the efficacy of hard laws resulting in long-term benefits is stifled. Despite these targets, the Kyoto Protocol has been characterized by notable levels of non-compliance. Member states of the Kyoto Protocol that fail to adhere to the set targets are subjected to the Compliance Committee, which has the power to invoke facilitative and enforcement measures against such countries. Fisher, Lange, and Scotf, ord assert that this characteristic of hard law makes countries feel constrained. [21] Non-compliance with the Kyoto Protocol can be associated with a lack of political commitment by the developed economies. The lack of political commitment explains why countries such as the United States pulled out of the Kyoto Protocol. This explains why dealing with climate change has become a major challenge[22].
In an effort tToiance on the set tarwithts on reduction of greenhouse gas emitted, hard laws advocate for the adoption of strict measures. Among the measures that the hard laws advocate are integrity sanctions.[23] Additionally, compliance under hard laws on climate change is also enhanced by domestic legislation,, which results in countries formulating policies aimed at enforcing businesses and individuals to ensure that their behavior does not result in the occurrence of climate change. In spite of the fact that hard laws tend to be characterized by a considerably high level of compliance, hard laws tend to be shallow, which means that they only act in codifying behavior. On the contrary, Annadale and Asian Development the ent Bank affirm that soft laws are considered toothless in that they do not force countries to enter into a legally binding a g deal. [24]
Trade competitiveness
The fact that the soft laws are not based on a treatresultssa in limited trade competitiveness. Both hard and soft laws on climate change are based on agreements that the parties are supposed to adhere to. However, the parties to an agreement are likely to put their interests first if they foresee that the terms of the agreement will adversely affect their interests. According to Harrison and Lisa, the level of competition inherent in the global economy may create an incentive for acountryt to comply with obligations to reduce climate change. Therefore, under soft law countries ma,y consider not enforcing the requirement to cut greenhouse gas emissionsin their interests.[25] On the contrary, states may consider loosening their approach to fight climate change to improve their trade competitiveness by attracting investors in areas that would be considered detrimental to environmental protection. Alternatively, to foster the level of investment, states may consider relaxing legal approaches or controls on dealing with climate change.
As a result of the binding obligations, hard laws result in a high level of legal certainty compared to soft laws. For example, hard laws result in the formulation of quasi-judicial or judicial rulings that target countries that fail to adhere to the strict environmental regulations. The legal certainty inherent underlying improves their efficacy in dealing with the hard problem of climate change. This arises from the fact that the trade competitiveness of the individual states is assured. Alam emphasizes that ‘binding treaty agreements lead to greater legal certainty than soft law agreements’. The binding nature of the hard laws further resultsin ann improved level of confidence that the parties to the agreement will not renege on their commitment to the agreementsagreementecting efforts to mitigate climate change. Subsequently, preservation of countries’ trade competitiveness under hard international environmental laws is assured compared to under the soft laws.. Gray, Tarasofsky, and Carla,,rne argue that agreements that are likely to affect a country's competitiveness are optimally embodied under the hard laws in form of a binding treaty.[26]
According to Wilkson, dealing with climate change policy involves taking into account high economic stakes [27]. Under soft laws, countries are, however, not ass,, u,r e d that t,t the members who fail to comply with the agreement will be adequately held accountable for their failures. This results in reduction in the level of willingness and commitment among member states in implementing the ambitious climate change actions and behaviors.
Dechezlepretre and Sato argue that dealing with climate change demands countrirequiressmpose strict measures aimed at eliminating pollutants. Governments’ response to climate change involves countries weighing between the economic benefits and the political benefits.[28] According to Willke, Becker, and Rostas, they affirm that mitigation efforts might translate into the iincrease ofhe high costs in producing goods and services. Economists are of the view that environmental regulations result in additional costs for a reduction in the level of productivity. The competitiveness of companies considered to be the largest contributors to tclimate changege is thus adversely affected. States may be required to invest in costly and extensive research and development programs in order to succeed in formulating approaches to reduce climate change. For example, the development of eco-friendly technologies. Such requirements may adversely affect the competitiveness of a country.
Considering the likely negative impact of climate change programs on a country’s trade competitiveness, it is essentialgovernments need to assure entering into such agreements on climate change will not affect their cost of production. Moreover, governments must ensure that the imposition of climate change mitigation measures does not disadvantage the local companies compared to foreign competitors to protect their country’s trade competitiveness. Nevertheless, this aspect is largely feasible under hard laws because of the binding treaty which results in,of obligations as opposed to soft laws.
Effective in enhancing climate change financing
Glavovic and Smith assert that substantial funding is necessary to successfully mitigate the effects of climate change.[29] Brown highlights that developing countries require a substantial amount of financial and technical resources in resilient in fighting climate change. According to the UNFCCC Parito to s Agreement, the developed economies, which are considered the largest contributors to global environmental pollution and hence climate change, aagreedlove , ide fun,,amountofofto approximately US$100 billion by the year 2020. This funding is expected to enhance motivation and adaptation to climate change. According to the Intergovernmental Panel(IPCC), the funding is supposed to be provided between 2013 and 2019. [30] Nevertheless, countries’ commitment to contributing to the Green Climate Fund is only possible under hard laws because of the binding treaty obligations Unlike soft laws, hard laws increase the certainty of funding for climate change mitigation programs. Therefore, hard laws create legal certainty, hence minimizing,g the risk of a lack of adequate anding. Stewart, Kingsbury, and Rudyk ar,e of the othinkountries may fail to provide funding as previously agreed under soft laws.[31]
This aspect is well underlined by the recent announcement by the US President Donald Trump that the US will withdraw from the Paris Climate Agreement. Trump announced that he will duly withdraw the US from the United Nations FFramework Conventionon Climate Change.[32] Trump’s motivation to pull the US out of the UNFCCC is to enable him to successfully fund programs in the program. In his opinion, Donald Trump argued that the countries have not been committed to reducing climate change as previously pledged. The US ranks amongst the leading countries in funding climate change, ha,,ving plepledgedUS$33 billion.is aspect underlines underlinesththatcommitment to fighting climate change under, soft laws might be hindeneeddforyiindividualsindividual to enforce sovereignty.
Stability of commitments
Hard laws are relatively durable compared to soft laws. Subsequently, the likelihood of hard laws surviving political or government changes is high, which improves their efficacy in addressing issues relating to climate change. Thus, one can argue that soft laws are a form of memorandum of understanding.[34] On the flip side,thee ing theure of hard laws means that they are inflexible unl,,ike soft laws. Lack of flexibility in hard laws’ effectiveness in dealing with the evolving problem of climate change. Inclusion of the element of flexibility to some degree increases the level of certainty in dealing with the future.
The extent to which soft law has provided an effective response to dealing with climate change
Even though hard laws are effective in enhancing the level of certainty and states' ccommitment aimedat averting climate change, soft laws play a fundamental role in enhenhancing countries’ countries’effortsve the problem of climate change. This aspect is underlined by the fathat formulationonn of soft laws has hharesulted increase an increase in the number of countries that are committed to solving the problem of climate change.
Soft laws have gained prominence in diverse policy areas of international law. Most countries are considering avoiding the immediate commitments associated with treaties that form the foundation of hard laws. On the contrary, soft laws have become prominent in dealing with diverse emergent issues. International environmental laws are a key component of soft law regulations. Additionally, soft laws are considered to be a relatively fast approach to resolving environmental problems compared to legal commitments. Even though soft laws are critical in enhancing environmental protection, soft laws may be considered embedded between politics and law because they are not characterized by binding obligations, which is a central element in law. [35] In essence, soft laws involve agreement between states. The agreements may be comprised of non-treaty obligations,ce mak thereby therebyg t,hem them them-eenforceable result of this aspect, countries might not be sufficiently committed to enhancing compliance because of political interference. This might result in ineffectiveness in enhancing environmental protection, hence spurring the occurrence of climate change. The effectiveness of soft laws in dealing with global climate change may also be enhanced by improved maturity of the international system. Countries are increasingly collaborating in undertaking diverse tasks without being governed by strict laws. Such cooperation might have a positive impact on addressing climate change. For example, the countries might adjust their behaviors through informal commitments.
Hard laws are considered to be ineffective in increasing the number of countries that sign their commitment to implement measures to address climate change because of the strict nature of obligatory requirements. Dealing with climate change involves a complex undertaking. This is mainly so because there are numerous factors that might contribute to climate change. Nevertheless, the problem may be compounded by the prevalence of scientific uncertainty on the actual causes of uncertainty. Dealing with climate change requires an urgent approach. Thus, formulating legally binding norms may not optimally address the issues callusing climate change. Thus, soft laws are more appropriate in addressing the urgency of climate change.
Under soft law, there is a high probability of a large number of countries participating in dealing with climate change. Soft laws create an opportunity for more active participation among the non-state actors. Soft laws allow non-state actors to participate in a process that is only possible under the traditional law-making process. For example, the Kyoto Protocol, which is a binding treaty, has 192 members[36]. Conversely, the Copenhagen Accord, which is an example of soft law in which parties to the Accord are required to voluntarily implement measures to deal with climate change, has managed to attract over 141 states that have signed the Accord. Hart opines that soft laws are intended to pressure non-consenting states or induce countries to conform to predetermined approaches aimed at reducing the occurrence of climate change. For example, the Montreal Protocol is another example of soft law. In spite of the fact that the Montreal Protocol is characterized by a highly detailed and complex set of rules on how to deal with climate change, the parties to the Montreal Protocol can adjust the agreement, but cannot opt out of it. A two-thirds majority is required to adjust the binding rules and regulations. Bailliet accentuates that soft laws are essentially designed to attract reluctant countries and provide the government’s discretion in making decisions relating to the commitments made.[37] Makuch and Pereira assert that the Copenhagen Accord is a political agreement that increases governments' willingness to join the accord. [38] Countries are more likely to agree to political commitments as opposed to legally binding commitments under hard laws. In his view, Kuivurova asserts that soft laws are considerably faster in enhancing response to international environmental problems. Additionally, the willingness of governments to find a solution to climate change is relatively high under soft law compared to a hard law system. Kuivurova accentuates that most of the parties to the Copenhagen Accord account for approximately 87.24% of the total global greenhouse gas emissions. On the contrary, the countries bound by the Kyoto Protocol only account for 25% of the total global GHG emissions. This variation indicates that soft laws cannot be underestimated in dealing with the problem of climate change.
The Copenhagen Accord reveals that there has been an increase in the shift from legally hard laws to top-down targets on climate change, which is a key characteristic of the Kyoto Protocol. As a form of political commitment, soft laws constitute a form of national pledge between governments. Apart from the non-binding nature of the Copenhagen Accord, the soft law does not specify the timeframe within which the states have to achieve the set targets. For example, parties to the Copenhagen Accord have agreed to set measures aimed at reducing global warming by 20 but have not been compelled to reduce climate change by a particular quantity per year. In addition to this aspect, increased country participation in reducing the occurrence of climate change under soft laws compared to hard laws is underlined by the fact that the soft laws are not characterized by sanctions. Thus, countries that fail to meet their initial pledge on GHG emissions are not required to. Despite succeeding in increasing commitment to limit the occurrence of climate change, attainment of climate change goals under soft laws might be hindered by the lack of binding obligations. Nevertheless, the level of a country’s compliance under the soft laws may be increased by the fact that the countries understand the likelihood of achieving economic sustainability and the common good associated with eliminating climate change.
In addition to this aspect, the Copenhagen Accord has managed to substantially increase funding for climate change mitigation measures. Parties to the Copenhagen Accord have jointly committed themselves to fund climate change mitigation measures by approximately US$100 billion annually. The members of the Accord intend to source this funding from private and public sources. The motivation for sourcing funding is to support the developing member states in their quest to reduce the occurrence of climate change.
The flexibility associated with soft laws means that countries can renegotiate the stipulated approaches in dealing with the occurrence of climate change. Soft laws can be adopted in a more rapid manner compared to hard laws because of their non-binding nature. It is relatively easier to adjust or amend soft laws if they fail to achieve the intended outcome. The flexibility associated with soft law also extends to include issues relating to compliance and implementation. This results in improvement in the efficacy with which the soft laws address the occurrence of climate change. Soft laws enable states to customize how to approach climate change. As a result of this characteristic, governments can take into account their respective interests in approaching climate change. The interests that might guide a state in determining its approach to climate change entail the need for survival, attaining economic progress, and sustainability.
From the analysis conducted, one can accentuate that soft laws can optimally replace hard laws if no agreement is reached between states. This might be the case if there is political resistance to agreeing with the hard laws. Due to the large number of countries that might be involved in the formulation of hard laws, only a few hard laws may be successfully implemented. To deal with the potential gap, the adoption of soft laws may result in improved agreements on how to mitigate climate change on a global scale. Soft laws can also substitute hard laws in the event that the resources necessary to implement the hard laws are limited. On the other hand, hard laws limit the degree to which countries can implement their approaches to the mitigation of climate change. Tarlock and Dernbach accentuate that hard laws are relatively rigid because they involve extensive negotiation and codification by the international parties.
Conclusion
Climate change is a critical international environmental problem that the world is facing today. The interconnected nature of the global environment means that it is essential for effective measures to be developed in order to limit the occurrence of climate change. In the quest to limit or eliminate the occurrence of climate change, diverse approaches, amongst them legal approaches, have been initiated. The formulation of hard laws and soft laws represents a classic example of a legal approach. The hard laws and soft laws differ substantially. Thus, their effectiveness in aiding the elimination of climate change varies as evaluated above. The fact that hard laws are comprised of treaties means that they are legally binding, unlike soft laws, which entail non-binding agreements. Subsequently, states that sign had laws, for example the Kyoto Protocol are obliged to comply with the stipulated measures to mitigate climate change. Moreover, the parties to the treaty are subject to progressive monitoring and evaluation by the compliance committee.
Owing to the legally binding nature of hard laws, the level of compliance is considerably high. Failure to comply with the measures stipulated by the hard laws might result in the imposition of sanctions. Nevertheless, compliance under hard laws has in some instances been hindhinderedmongst them the prevalence of states' interests. For example, some countries may perceive that investing in measures aimed at dealing with climate change under the hard laws might limit their trade competitiveness. This might result in the adoption of cold feet in adhering to the stipulated measures. Additionally, some countries may not be committed to meeting the targets set and within the stipulated timeframe. For example, some of the major contributors to the occurrence of climate change, such as the US, have pulled out of funding for climate change mitigation measures under the Green Climate Fund. This indicates that the level of countries' commitment to addressing climate change under hard law is limited.
Unlike hard laws, soft laws do not set strict measures that countries should adopt to reduce the occurrence of climate change. On the contrary, countries have the discretion to enact measures that they consider appropriate in dealing with climate change. This characteristic of soft law has resulted in a remarkable increase in the number of countries that are committed to collaborating in fighting climate change under the soft law. Soft laws are also very effective in addressing the occurrence of climate change because they do not compel countries to achieve the set targets within a specified timeframe.
The analysis further shows that soft laws are more effective in addressing climate change because they are flexible as opposed to hard laws, which are relatively rigid. The flexibility of soft laws enables states to adjust their strategies and targets in dealing with climate change. Therefore, states have discretion in implementing measures to deal with climate change and do not feel compelled. The flexibility of soft law has resulted in a substantial increase in the number of countries that are willing to collaborate or enter into bilateral or multilateral agreements on climate change. The extent to which soft laws are effective in dealing with the problem of climate change is further improved by the fact that they are relatively easy toimplementt. On the contrary, hard laws are characterized by a substantially high degree of bureaucracy. Thus, hard laws cannot adequately address the urgency that might be required in order to successfully deal with the issues that instigate the occurrence of climate change.
In summary, the analysis shows that both hard laws and soft laws are critical in addressing the occurrence of climate change. Nevertheless, the complexity inherent in addressing climate change shows that it is necessary for a softer approach to be integrated in order to increase the country’s commitment and motivation in implementing climate change mitigation measures.
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