Today, environmental problems such as climate change, ozone layer destruction, marine pollution, reduction of biodiversity, and hazardous wastes are not a problem at a national level but a global issue. In order to solve environmental problems, intern ...
Today, environmental problems such as climate change, ozone layer destruction, marine pollution, reduction of biodiversity, and hazardous wastes are not a problem at a national level but a global issue. In order to solve environmental problems, international cooperation is required. Over the past several decades, the international community has sought to conclude an international environmental agreement to tackle international environmental issues, and Korea has ratified 57 international environmental agreements.
Most international environmental agreements let a Party limit citizens’ right, impose citizens’ obligation, or impose penalties for violation of their obligations. Therefore, constitutional principle, including principle of the rule of law and principle of nulla poena sine lege, require the enactment or amendment of domestic law. It depends not only on the quantitative problem, such as the number of international environmental agreements or the number of the parties, but also on how faithfully the parties incorporate their obligations under the international environmental agreements into domestic laws and enforce them. In order for the international environmental agreement to fulfill its role, the Parties should take appropriate legislative, administrative and policy measures to be able to influence the decision-making of potential polluters and change their behavior.
The method and contents of domestic implementation will vary depending on the content of the international environmental agreement and the type of obligation of the Parties. The main purpose of this article is to find a solution to secure the effectiveness through the implementation of the international environmental agreement and ensure consistency with the domestic legal system.
The obligations laid down by international environmental agreements are not limited to the relations between countries but are often accompanied by measures to limit the rights or freedoms of persons, in particular the freedom of economic activity. Likewise, in the case of restrictions on the rights of the people, imposition of obligations, or imposition of penalties, legislative measures are necessary in light of the rule of law and principle of nulla poena sine lege. If there is a need to take legislative action for the implementation of the international environmental agreement in Korea, it is necessary to choose whether to enact a new law or to revise the current law. And it should be considered whether there are existing domestic laws and regulations on the matters, and which of administrative agency is concerned with the object of the international environmental agreement.
The specific content of domestic legal implementation may vary depending on the type of obligation of the Party under the applicable international environmental agreement. In particular, the manner and content of implementation may vary depending on whether it is an obligation to achieve a certain goal or outcome, or an obligation to take a particular measure or method. And it may vary depending on the degree of specificity of the Party’s obligation.
In addition, the international environmental agreement has the characteristic of rapidly evolving the contents in accordance with the pace of scientific and technological development. If the domestic law cites the Annex to the Convention directly, it may cause problems such as the lack of democratic control and the obstruction of procedural transparency.
In addition, in fulfilling the obligations of the Parties in accordance with the international environmental agreements, it is necessary to comply with the proportional principle, the principle of trust protection, the principle of equality, and so on. And in particular, it is necessary to pay special attention to the conflict with the WTO regime.
Compliance is not sufficient to merely transfer the obligations under the Convention to the domestic law. Even if the enactment of the implementing legislation is faithful, if the enforcement is not faithful, it will be difficult to be regarded as observing the obligations under the Convention. Ultimately, compliance with the Convention will depend on the will and ability of each country to implement it.