ASIL Annual Grotius Lecture: International Environmental Law and a Green Economy with Achim Steiner
Annual Grotius Lecture: Focusing on the Good or the Bad: What Can International Environmental Law Do to Accelerate The Transition Towards A Green Economy?
Wednesday, 25 March 2009, 4:30-6:00 p.m EDT
Featuring: Achim Steiner, UNEP Executive Director
Discussant: Dinah Shelton, Professor at Georgetown Washington University
Co-sponsored by the American University’s Washington College of Law and the ASIL International Environmental Law Interest Group.
Achim Steiner, UNEP Executive Director at the podium.
Overview
Achim Steiner, the Executive Director of the United Nations Environment Programme (UNEP), delivered the Annual Grotius Lecture on 25 March 2009 at the 103rd Annual Meeting of the American Society of International Law (ASIL). Steiner began by observing that he is not a lawyer. He stated that his talk was intended to explore: “To what extent can laws and regulations accelerate the green economy or slow it down?” The sub-context, he continued, is how to focus on good ways to promote the green economy and to avoid punishment.
Dinah Shelton, Manatt/Ahn Professor of International Law at the George Washington University Law School, then provided remarks.
Summary
Achim Steiner called for incentive-based systems rather than deterrence or punishment. To that end, he cited the environmental, financial, social, and human rights benefits of investing a major portion of the $3 trillion bailout funds in renewable energies and environmentally-focused recovery strategies. The following headers are guides to the themes I identified from his talk.
Common Concerns and Common Interests
International law, he asserted, is not just about global warming. It is the “brown cloud” seen in many areas worldwide, chemical pollution, and e-waste brought about through either physical disposal or global trade. These global problems need to be addressed by the community of nations.
He commented on the preparations of a Fourth Programme for the Development and Periodic Review of Environmental Law (Montevideo Programme), which was held 29 September to 3 October 2008 at the UNEP headquarters. The Fourth Programme integrates consideration of human rights, human security, and other environmental conditions that promote the health, nutrition, and general well-being of those in poverty.
Carrots Not Sticks
He asserted that the future of environmental governance will be driven by opportunity and accountability, not legal punishment. He believes the approaches to environmental stewardship thus far have shown that punishment and persuasion do not work. He commented that science previously prevailed in decision-making. Now, social and economic factors are also considered.
The current financial bailouts are intended to stabilize the economic crises worldwide. If these funds are not allocated properly, he argued, they could decelerate the development of tomorrow’s green markets. He asserted that there needs to be “seed funding” within the legal and regulatory frameworks to signal the marketplace and guide them to green technologies. He gave the example of feed-in tariffs in Germany and Spain that have spawned an “extraordinary renewable revolution” in those countries. He continued to other assorted, brief vignettes to illustrate how public choices can change market approaches. He did not explain feed-in tariffs.
Feed-in tariffs are incentive structures generally implemented by law or regulation to require electric utilities to purchase renewable energy sources at above-market rates. The increased costs then are generally spread across all consumers of the electric utility, creating a gradual shift in energy technologies. In Germany, each technology receives its own feed-in tariff, which is lowered every year to encourage the development of newer, more efficient technologies. The United States used the feed-in tariff approach during the 1970s energy crisis in its two federal laws: the National Energy Act (NEA) of 1973 and the Public Utilities Regulatory Policy Act (PURPA) of 1978.
Analysis
Essentially, his argument is that the “Green New Deal” to revive the world economy and protect the environment needs to rely on carrots and not on sticks. This green strategy would rely on legal and regulatory frameworks to provide incentives to electrical utilities and private actors, as well as microcredit strategies to promote environmental results by overseas development aid. His call to action for the prevention of future harm through affirmative public choices today is consistent with the goals of sustainable development. Yet, in arguing that we need to move past ineffective approaches premised on punishment, he appeared to reject the role and benefits of deterrence, such as the deterrence achieved through eco-taxes (the “polluter pays” principle), fines and sanctions for environmental violations, strict liability, and the criminalization of deliberate acts of environment contamination or destruction. He did not address what remedies should apply when states and non-state actors fail to comply with formal and informal environmental obligations.
Need to Reform International Environmental Law and International Institutions
He asserted that, just as President Obama has called for change in the United States, now is the time to reform the United Nations and UNEP with a goal of enabling economic policy as linked to environmental policies. He asserted that most international environmental legal instruments and international institutions are ineffective and in need of reform.
He criticized the Convention on Biological Diversity for its failure to address access and benefit sharing, nearly 15 years after its adoption. He identified the Montreal Protocol as the best example for international law efforts. He stated that it reflects a compromise between public policy and technology options.
His line of argument implicitly suggested that any new international legal instrument should be premised on incentive-based financial conditionality and not on trade restrictions, civil and criminal liability, and other punitive measures. At no point in his presentation did he address what remedies should apply when states and non-state actors fail to comply with formal and informal environmental obligations and whether enforcement mechanisms should be included in international treaties.
Strengthened Role of UNEP as Environmental Pillar of the UN
He also called for international institutional reform to broaden the scope of UNEP’s role and to enable it to serve as the central forum on all environmental matters. He sees the UNEP as the logical focal agency for the coordination of environmental efforts. He points to the fact that it is the only UN agency with “environment” in its name. He asserted that the UNEP is undermined by the efforts of other international institutions.
Steiner specifically asserted that the World Trade Organization (WTO), a non-UN entity, should give the UNEP a substantial role in determining the policies and legal instruments related to climate change. He also asserted that regional organizations may be too limited in their effectiveness to address global environmental issues, further bolstering his argument for putting UNEP as the forum and clearinghouse for international environmental law.
Lastly, he concluded that the upcoming G-20 summit may be the time for translating economic policies into beneficial environmental outcomes. He left the audience to ponder what should be the role of the United Nations.
He did not address how a larger role for UNEP would be coordinated with other specialized UN agencies, such as the World Health Organization (WHO), the United Nations Development Programme (UNDP), the Food and Agriculture Organization (FAO), and UNESCO, among others. He seemed to argue, for example, that WHO would need to go through the UNEP for disease prevention and response efforts related to environmental causes. In theory, this centralization and coordination would increase efficiencies and coordination among the multilateral environmental agreements.
His call for the UNEP to play a more visible role in the coordination of environmental issues is supported by the findings of a 2007 High-Level Report on System-wide Coherence commissioned by the Secretary General of the United Nations (UNEP/GC/24/11/Add.1). The High-Level Report makes recommendations on how to implement paragraph 169 of the 2005 World Summit Outcome, which called for enhanced coordination, strengthened scientific knowledge, assessment and cooperation and better integration of environmental activities in the broader sustainable development framework at the operational level, including through capacity-building. The High-Level Report also called for the strengthening of the UNEP’s Global Ministerial Environment Forum. The follow-up questions circulated to GA member states for feedback included: “Can a strengthened UNEP effectively fulfill its mandate as the environmental pillar of the United Nations system?”
About Achim Steiner
Achim Steiner was unanimously elected by the UN General Assembly as the Executive Director of UNEP on 16 March 2006. His four-year term began 15 June 2006 and ends 14 June 2010. He is the fifth Executive Director in UNEP’s history. Before joining UNEP, Achim served as Director General of the World Conservation Union (IUCN) from 2001 to 2006. In 1998, he was appointed Secretary-General of the World Commission on Dams, based in South Africa, where he managed a global program to bring together the public sector, civil society and the private sector in a global policy process on dams and development.
Steiner, a German national, was born in Brazil in 1961, where he lived for ten years. He earned his BA from the University of Oxford and an MA from the University of London with specialization in development economics, regional planning, and international development and environment policy. He also studied at the German Development Institute in Berlin and at the Harvard Business School.
About Dinah Shelton
Dinah Shelton, Manatt/Ahn Professor of International Law at the George Washington University Law School, then provided remarks. In 2006, she was awarded the prestigious Elizabeth Haub Prize in Environmental Law. She is co-author, with Alexandre Kiss, of the Guide to International Environmental Law. In March 2008, the United States nominated Professor Shelton to serve as a member of the Inter-American Commission on Human Rights (IACHR) for a four-year term beginning in January, 2010. She is the first woman nominated by the United States for the IACHR.
Inside Justice
- 2009 ASIL – 103rd Annual Meeting of the American Society of International Law
- 2009 ASIL Plenary: International Law as Law at the International Court of Justice
- United Nations – Programs and Agencies
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