Multilateral Environmental Agreements and the Compliance Continuum

I. INTRODUCTION

[T]he gap between the burgeoning hundreds of international environmental laws and the actual condition of the environment - [is] perhaps one of the largest contradictions of our time.

Alexander Gillespie,

International Environmental Law and Policy1

A. THE PROBLEM

The total number of multilateral environmental agreements (MEAs) negotiated by the international community is impressive. There are over 500 MEAs, covering such diverse issues as loss of biological diversity, pollution of the atmosphere, ocean degradation, and desertification.2 Moreover, commentators suggest that compliance with the obligations agreed to in MEAs is generally high.3 Yet, despite the considerable number of MEAs and the high compliance rate, there is growing concern that the state of the global environment is continuing to deteriorate.4

One reaction to the observation that MEAs are not effectively addressing environmental problems has been a call to intensify the obligations assumed by the parties to MEAs. That is, resolution of global environmental problems requires "deeper cooperation."5 The most recent example of this is the climate change regime. To respond to the problem of global warming, the United Nations Framework Convention on Climate Change6 (UNFCCC) outlined a framework of action for Parties to stabilize greenhouse gas emissions.7 At the first meeting of the Conference of the Parties, the adequacy of the commitments in the UNFCCC was a critical issue.8 The Parties entered negotiations to strengthen efforts to address global climate change, which resulted in the adoption of the Kyoto Protocol.9 In contrast to the UNFCCC, which merely encouraged Parties to stabilize greenhouse gas emissions, the Kyoto Protocol sets quantifiable greenhouse emission limitation and reduction commitments for certain developed country Parties.10

The introduction of emission commitments in the Kyoto Protocol was accompanied by negotiations concerning not only how to ensure compliance with those commitments, but also possible enforcement mechanisms in the event of non-compliance." Despite the reportedly high compliance rate with many other MEAs, in the face of binding emission commitments in the Kyoto Protocol, the Parties wanted assurances that these would be backed by a credible compliance system.12 This increased attention to compliance is however, not restricted to the climate change regime. It is part of a recent development in the negotiation of MEAs to introduce treaty specific compliance regimes, which may incorporate enforcement mechanisms.13

This article aims to explore whether this development in strengthening enforcement in MEAs is supported by legal theories on why nations comply with international environmental law. The specific question considered is whether stronger enforcement is required to secure compliance with MEAs, particularly where the MEA is characterized by deep cooperation, such as in the Kyoto Protocol. As this question is not directly addressed in the literature on international environmental law, the article reviews the general literature on compliance with international law, and applies the leading theories to MEAs.

The focal point of the compliance literature is explaining the causal link between state behavior and compliance with international law. This literature increased dramatically at the end of the last century as scholars from various disciplines, including law, political science, and political economics, sought an answer to the compliance question:14 "why do nations obey international law?"15 Understanding the connection between state behavior and international law enables an assessment of whether stronger enforcement in international environmental law is required to secure compliance with MEAs.

B. CONCLUSIONS

In summary, stronger enforcement is required to secure compliance with MEAs where the obligations assumed by the parties exhibit deep cooperation. Currently, many MEAs contain relatively weak obligations, reflecting no more than existing domestic policies for party states - explaining the high compliance rate. More fundamentally, shallow cooperation explains why global environmental degradation continues. Where an MEA demands no more of nations than the status quo, the agreement is unlikely to have any significant impact on the environmental problem it was negotiated to resolve.

Accordingly, to meaningfully address international environmental problems we must introduce more onerous obligations into MEAs. Ensuring compliance with increased obligations will require stronger enforcement mechanisms. These mechanisms must also be legitimate, as illegitimacy is one of the primary justifications for theories on the compliance continuum opposed to the use of stronger enforcement mechanisms. By creating stronger legitimate enforcement mechanisms, we may be able to begin increasing the effectiveness of international environmental law.

This discussion is divided into three parts. Part II sets up a conceptual framework for understanding the compliance literature. First, I define the terms "compliance," "enforcement," and "effective." Second, I describe the starting block for understanding the compliance theories by outlining the underlying assumptions most authors make, either explicitly or implicitly, before they consider the compliance question.