Towards an Improved Understanding of Legal Effectiveness of International Environmental Treaties

Georgetown International Environmental Law Review, Spring 2004 by Chambers, W Bradnee

I. INTRODUCTION

Given that the international community has negotiated countless treaties over the last several decades, one would imagine that it would have a clear conception of what constitutes effective international law. But despite its frequent use, and the numerous studies that have dealt with the topic, there remains a poor understanding of effectiveness in international law. Just a few of the references to effectiveness in international law demonstrate the wide variety of definitions and understanding of the concept.

"Effectiveness" is a concept often referred to in international law literature:

. . .effectiveness of different regulatory and enforcement techniques is largely determined by the nature of the problem.1

The effectiveness of international law rests on the recognition it receives from the governments of the world.

The validity and effectiveness of international law depends on the continuing consent and support of nation-States.3

. . .the effectiveness of international law largely depends on the flexibility of the international law-making processes, as well as its ability to combine new concepts and techniques.4

. . .the effectiveness of international law as its capacity to be implemented at the international and national levels. . . the effectiveness of international law. . .is ultimately measured according to its enforcement at the local level. . .5

Perhaps international law is considered effective because it is a political exercise, and therefore, non-negotiable? Is effective international law those laws that achieve the objectives set out in the treaty? Or perhaps effectiveness can be defined philosophically, as those laws that achieve justice and fairness? Or does effectiveness conform to the positivists' notion that law is effective when it achieves sufficient compliance to be accepted by all? Whatever the perception, the reality is that laws are often crafted without any understanding of what is effective, and what is not.

Traditionally, under international law, the principle of effectiveness was employed as a precondition for establishing rights.6 A right was granted if the effectiveness principle (i.e., factual situations) could be first proven.7 Prior to 1946, before the use of force was outlawed by the United Nations, this meaning of effectiveness had particular significance for statehood. If a government had control of its territory, was able to enforce its authority, and was recognized by a number of other States, it was considered to be effective power and would be granted standing in the international community. Since 1946, the use of the effectiveness principle has been less significant, but it still bears meaning in the context of treaties; the effectiveness of a treaty is defined by its ability to establish a factual situation with respect to its subjects.8 Conversely, if a treaty were unable to establish the conditions it sets out in its objectives, or if it were not followed by its parties, the treaty would be considered ineffective.

The traditional principle of effectiveness focused more on the form and power of treaties rather than their design or impact. As Hans Kelsen stated a half century ago, the pure theory of law was "what and how the law is, not how it ought to be." The reality of the effectiveness of treaties is quite the contrary;9 design and impact are critical to a treaty's effectiveness. Treaty making on the environment is testimony to this fact: during a period that created an unprecedented number of treaties and international rules to protect the environment, we have also seen unprecedented environmental degradation.10

This article will draw from work from various disciplines to offer a more ample and multi-faceted definition of legal effectiveness in international treaties. It will examine the various concepts of effectiveness from the standpoint of treaties, the main source of international law, and will focus on environmental law, although the insights will be useful for international public law at large. The article finds that effectiveness can be defined in several ways. Whereas social sciences view effectiveness from the broader notion of the effect institutions have on societal behavior, the definition used in this article will be from the legal standpoint, which looks specifically at international treaties and their impact on solving the problem stated by their objective(s).

First, the article will examine works to date that have studied effectiveness - drawn largely from the field of international law. These works have looked to implementation and compliance as essential components of effectiveness. Next the article will chronicle additions to the effectiveness discussion made by the international relations literature. Specifically, this portion of the article will argue that international relations studies have provided a great deal of insight on how implementation is important to understanding the impact that institutions have on the behavior of both state and non-state actors. While international relations studies have made strides in outlining the relationship between institutions and effectiveness, proving direct causal connections between the specific operations of an institution and the corresponding effect on behavior is very difficult with the current quantitative and qualitative data that exists. This section of the article will suggest that studies so far on compliance have also led to important contributions to understanding how obligations that are specifically laid out in the treaties are met at the domestic and international levels, but still do not give a full picture of treaty effectiveness. To equate compliance with effectiveness, however, would be only a rule-based positivistic approach that would not necessarily show whether the objectives of the treaties are in fact being met.