33 ELR 10387 | Environmental Law Reporter | copyright © 2003 | All rights reserved

International Environmental Law: A Global Assessment

Prof. Joseph DiMento received his Ph.D. and J.D. from the University of Michigan. He is a Professor of law and society and planning, University of California Irvine (UCI); Head of the Focused Research Group in International Environmental Cooperation; Director of the UCI Newkirk Center for Science and Society; and a Member of the California Bar. Professor DiMento is the author of numerous books and articles on domestic and international environmental law including Environmental Law and American Business; Dilemma of Compliance. This Article is based on sections of his book The Global Environment and International Law published by the University of Texas Press in 2003.

[33 ELR 10387]

This Article offers a global assessment of the record and promise of international environmental law to the beginning of the millennium. I first present several overall accounts of the contribution of international environmental law. Herein I describe the complexities of undertaking global evaluations. After summarizing the negative and positive evaluations, the Article takes a closer look at five case studies. I then lay out a description of a set of characteristics linked to effective law. Thereafter I look forward, reviewing conditions that are expected in the policy world in which international environmental law evolves. They address the functions of science in the law, the roles of private industry, and perspectives on how to attain desirable international outcomes. I then present a set of recommendations for improving the effectiveness of the law, recognizing the considerable challenges of fostering change in complex systems. Several of these account for changes expected in international policymaking; others I consider necessary independent of anticipated changes.

An Accounting: Successes and Failures in International Environmental Law

International environmental law contains a broad range of instruments. Assessing it is complex not only because of its scope but also because of distinctions among the instruments. Some instruments aim at most to be policy prescriptions without the same referents as hard law provisions, which generally are clear and substantive about what is required. Some are frameworks, articulating broad principles that will guide future international legal considerations. Many are hybrids with characteristics of framework development, policy promotion, and hard law.

Assessment is also complicated by the varying criteria used to define success and the seriously inadequate data and institutions for generating better data. The Global Environment Outlook 2000 found:

The monitoring and data collection infrastructure of most developing countries is severely handicapped or non-existent due to limitations in resources, personnel and equipment. Constraints are also faced by international organizations. Keeping well-trained personnel in publicly funded institutions is difficult. In some cases, there is no organization mandated to collect and report time-series data internationally on specific issues on a regular basis …. Data are reported for different geographical areas by different agencies and organizations. As a result, it may be impossible to use and compare otherwise valuable aggregated datasets in global and regional assessments [and] the data management infrastructure of many countries is weak and data reporting is fragmented.¹

Nonetheless, evaluations can be made. At the millennium, many observers, including several leading international law experts, concluded that the great inventory of treaties, conventions, international tribunal decisions, custom, agreements, soft law principles, and other instruments aggregate in substance to less than the sum of the parts, and the sum itself is disturbingly inadequate. As we shall see, however, this general conclusion masks several elements of a history of success in some areas.

Negative Assessments

It is common to reach conclusions about this body of law that point to its weaknesses, its lacunae, its failures. Marti Koskenniemi, professor and member of the Ministry of Foreign Affairs of Finland, stated that the tendency toward

the massive increase in international legislation during the last quarter of a century, particularly in the environmental field has not created a new world order. In fact, the gap between law in books and how states act may now appear wider than at any other time in history—the more rules there are, the more occasion there is to break them. After years of active standard-setting, global and regional organizations stand somewhat baffled in front of a reality that has sometimes little in common with the objectives expressed in the inflated language of their major conventions and declarations.²

Koskenniemi's view has been characterized as approaching the "nihilistic." He believes that most international environmental law bears a minimal relationship with general international [33 ELR 10388] law. Furthermore, dispute settlement clauses are more a reflection "of ritual than any realistic belief that compliance problems should, or could, be dealt with through the doctrines of fault and attributability which characterize the legal doctrine of state responsibility."³ Worse yet, even if compliance was achieved, the compliance is with law that cannot solve the problem that it putatively addresses. The Italian international scholar Giorgio Gaja agrees.⁴

Marc Pallemaerts⁵ is also highly critical, claiming that international environmental law has been regressive. He attempts to show how the concept and ideology of "sustainable development" undermines the autonomy of environmental law as a body of rules and standards created to prevent environmentally destructive activity. There may even be reason to fear that the Rio meeting of the United Nations (U.N.) Conference on Environment and Development (UNCED)⁶ was the beginning of the decline of international environmental law as a separate branch of international law. Pallemaerts worries that international environmental law could become a mere appendage of international development law. It would then be subordinated to economic considerations.

Stefano Nespor, a leading Italian and European Union (EU) lawyer and lecturer, argues that international law has wrongly responded to the desires of western environmentalists.⁷ In doing so, it has sacrificed work on solvable pressing and real environmental problems in the Third World, the poor and developing countries, to focus on speculative global disasters that could affect future generations. John W. Meyer and his colleagues conclude that the "environmental sector," which includes law, "is clearly ineffective in comparison to the rapidly expanding claims on it."⁸

Prof. Larry Susskind of the Massachusetts Institute of Technology, a pioneer in assessments aimed at reaching environmental goals, maintains in a treatise seeking a new approach to negotiating environmental agreements that knowledgeable observers agree that the most notable global treaties have failed to reverse environmental deterioration.⁹ Those who look to reform international environmental law will

see glaring weaknesses: the rules are very sketchy; no one is really in charge; much of the negotiation process is ad hoc and unregulated; there is no central authority to manage the process or compel compliance; and the dispute resolution mechanisms available through the International Court of Justice are not definitive.¹⁰

British international relation and legal specialists Andrew Hurrell and Benedict Kingsbury similarly conclude that the majority of international environmental agreements they studied had not substantially improved environmental conditions.¹¹

The Environmental Law Network International is pessimistic: the law often is worded in "vague and cautious" terms, raising the question of the extent to which the international enterprise is only "symbolic legislation … without … creating binding rules with teeth capable of setting concrete and precise standards of environmental behaviour and conduct."¹² German international lawyer and political scientist Frank Biermann characterizes the legal and policy framework for the management of global marine pollution as insufficient, "a patch work approach" that lacks significant coordination and sufficient cooperation between the northern and southern hemispheres.¹³

Professor of public international environmental law Gunther Handl first acknowledges that the UNCED

has had a tremendous impact in terms of raising global environmental consciousness, setting in motion or accelerating the search for solutions to global environmental problems, and refocusing attention on the necessity for a more equitable distribution of resources among nations. It has helped narrow … the gap between the concepts of environment and development and has made a major contribution to … empowerment of nonstate actors.¹⁴

But he concludes that "a careful analysis provides a much less reassuring picture," pointing to weaknesses in the Climate Change Convention, polarization over issues at sessions of the U.N. Conference on Straddling Stocks and Highly Migratory Fish, and problems in movement toward a global forest convention.¹⁵

Philippe Sands, a leading figure in the field, barrister and Legal Director of the Foundation for International Environmental Law and Development, concludes that mechanisms for improving compliance are underutilized and questions whether law can address the growing range of challenging environmental issues.¹⁶ Not optimistic about the UNCED, he argues that it will likely not significantly improve existing arrangements. Further, he suggests that domestic compliance with environmental obligations is inadequate and compliance with international obligations is largely absent. Many states fail to meet the most basic requirements of the law, such as reporting, and substantive obligations remain unimplemented. The data he presents are discouraging: only 19 of the 64 Parties to the 1972 London Convention reported on the number and types of dumping permits they issued in 1987; only 13 of the 57 Parties to the International Convention for the Prevention of Pollution From Ships [33 ELR 10389] (MARPOL 73/78) reported violations and penalties they had imposed in 1989; only 25 of the more than 100 Parties to the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)¹⁷ submitted reports on 1989 import and export certificates for listed endangered species.¹⁸

Others similarly conclude that effective enforcement of the treaties has been lacking¹⁹ and that there simply are too many treaties, engendering a kind of "treaty congestion."²⁰ An analysis by the U.S. General Accounting Office (GAO) of implementation also is quite negative: "Many reports are submitted late or incomplete, or are not submitted at all."²¹ Almost one-half of the reports to the Montreal Protocol Secretariat had information gaps. Equally if not more discouraging responses were reported for MARPOL, CITES, and the International Tropical Timber Agreement. The GAO further noted that those nations that carry out agreements may be put at a competitive disadvantage compared with countries that do not because of the high costs involved in coming into compliance. After citing some success in the number of international environmental instruments being concluded, David Freestone, a professor at the University of Hull and a legal advisor to the World Bank, warns that if they are not implemented, they "may not simply be worthless: they may be worse than worthless if they give the impression that all is well when the opposite is in fact true."²²

At the regional level, assessments are more varied but still critical. Stanley Johnson and Guy Corcelle conclude about the European Union:

Generally speaking, numerous weaknesses and gaps in the implementation of environmental directives have been noted by the Commission: often inclusion of these directives in national law is delayed; they are often only partially incorporated; in practice, the directives have been considered as recommendations, rather than provisions having a restrictive legal power; in some cases even the decisions of the Court of Justice recognizing an infraction on the part of a Member State, have not been followed.²³

Enforcement procedures within the European Community (EC), both at national and at community levels, are ineffective²⁴; definitions within European law remain elusive; and it is characterized by "messiness in certain areas and absurdities in others," although the case with European waste law may ultimately make for a more balanced assessment.²⁵

In a criticism that she generalizes to the United Nations Environment Program (UNEP), Gabriella Kutting, a British political scientist and international relations specialist, notes the potential weakness of focusing on compliance rather than the effectiveness of international environmental law.²⁶ About the Mediterranean Action Plan (MAP) she observes: "If cooperation rather than implementation is seen as the aim of MAP, it can be described as a successful agreement. Unfortunately, cooperation without implementation does not improve the state of the marine environment. Thus, MAP lacks effectiveness."²⁷ Explicitly addressing progress in environmental terms, American environmental conservation professor John Carroll concluded of the International Joint Commission that "in broader societal concerns of water and air pollution, it has achieved little of significance when measured against getting the problem solved, and that should be the only real measure."²⁸

Some observers attend to the weakest parts of treaties and generalize therefrom. They see vague definitions such as the undeveloped "ecosystem approach" in the Convention on the Conservation of Antarctic Marine Living Resources²⁹; loopholes, such as through bilateral agreements in the Basel Convention; incentives to defect from the Montreal Protocol and absence of effective compliance-promoting mechanisms; failure to address air pollution emissions from vessels under MARPOL and related regimes; creation of polarization rather than consensus with the Straddling Stocks and Highly Migratory Fish Treaty and its failure to address protection of the 90% of the world's fisheries within the 200-mile exclusive economic zones of coastal nations; the possibility of trade between members and nonmembers of CITES, its provision allowing downgrading of species from extremely endangered to threatened, and failure to provide adequate financing to meet obligations; ineffective monitoring and management under certain fish protection conventions; and vote buying, expensive use of scientific research, and aboriginal catch exemptions under the international whaling regime.

In addition, the Commission on Sustainable Development has made only modest progress in implementing Agenda 21, and its activities have been decried as "depressingly slow"³⁰ and remaining in a very preliminary stage.³¹ The Bamako Convention³² has a noble objective and contains a precautionary principle, but it lacks an effective [33 ELR 10390] monitoring and enforcement mechanism, commitment from some African states, and sufficient funding.³³ The International Convention for the Conservation of Atlantic Tuna³⁴ has been ineffective in reversing the trend of declining tuna stocks in part because some fishing nations did not sign the treaty. Among those that did are countries, such as the United States, that have not been sufficiently influenced by the regime's compliance rules. Quotas set by participating Parties have been unlawful. For example, the U.S. quota was set at three times its allocation.³⁵ True, a trade measure element exists in the regime, but it is focused on nonmembers.

Peter Dauvergne, an environmental policy analyst from Australia, is anticipatorily pessimistic on forestry:

Even if current efforts to develop a global forest convention are successful, even as governments embrace new environmental institutions and laws, and even as international activist groups and local nongovernmental groups gain influence, genuine reforms will still occur slowly, perhaps too slowly to save the remaining old-growth tropical forests of the Asia-Pacific.³⁶

By 2000, internationally traded tropical timber was to come entirely from sustainable sources.³⁷ That goal has not been met.

Anecdotes fuel these negative assessments. The standoff between the United States and Canada on overfishing in the Pacific Northwest has been embarrassing. Canadian fishermen were a graphic reminder of the fragile nature of international environmental law, as they encircled American ships with their small vessels to block them from leaving the bay.

Other examples are regressive: Germany's plan to phase out a water pollution tax established in 1976, an action incompatible with principle 16 of the Rio Declaration and chapters 4 and 18 of Agenda 21³⁸; the EU's failure to adopt an EU-wide carbon tax, despite the EC's political commitment to stabilize carbon dioxide (CO₂) emissions at 1990 levels by the year 2000³⁹; the American reliance on voluntary cooperation by business and industry for reducing greenhouse gas emissions⁴⁰; and the failure at the UNCED to produce a global forests convention.⁴¹

The 1991 Air Quality Agreement between the United States and Canada lacks external control over environmental impact assessment (EIA). Neither it nor the U.N. Economic Commission for Europe Convention on Environmental Impact Assessment⁴² has substantive value if the procedural obligations (consultations or conciliation) are unsuccessful. Indeed, in a survey the Secretariat of the United Nations "was unable to uncover any instance where an activity was enjoined on account of the environmental risks it entailed, even though such requests had at times been made."⁴³

The 1986 Convention on Early Notification of a Nuclear Accident⁴⁴ allows a state to evade its duties by concluding that the accident is not "radiologically significant."⁴⁵ With regard to a procedural obligation provided by treaty, pertaining to the exchange of information, Phoebe Okowa summarized:

The determination of breach of obligations of this character is bound to be problematic in so far as their performance cannot be tested objectively. There are no uniform principles or rules regulating the collection or dissemination of information. A State may decide to supply minimal information, or install inadequate monitoring equipment, but in the absence of institutional or third party mechanisms or criteria for determining the level of compliance it would be very difficult to make out a case of breach.⁴⁶

The provisions regarding land-based sources of marine pollution in the controversial Law of the Sea Treaty (UNCLOS)⁴⁷ are strikingly weak, "certainly the weakest formulations to be found in international legal documents."⁴⁸ UNCLOS articles 207 and 212 may be understood only as a general rule of state conduct whose content is still determined by the individual will of states⁴⁹ and collective scientific interests of the community of nations as a whole are not protected.⁵⁰ UNCLOS had devoted little attention to the conservation and management of high-seas fish stocks. From 1982, fishing outside the 200-mile zone increased as nations sought new areas to exploit. Concomitantly, there was mismanagement and overexploitation of resources within the 200-mile limit, renewing pressures on those fish stocks that straddle the 200-mile boundaries,⁵¹ although the protection of these stocks has been addressed in an agreement that came into force almost two decades after UNCLOS. The continued hegemony of the flag state in respect to prosecution of violations of fisheries conservation measures on the high seas is another defect.⁵² Furthermore, the UNCLOS mechanisms for dispute settlement have contributed to the proliferation of international tribunals, whose uncoordinated actions [33 ELR 10391] can fragment both substantive law and procedures for settling disputes.⁵³

With the exception of the European treaty regimes, the 40 regional seas environmental treaties have not been effective. The regimes are characterized by a vagueness similar to UNCLOS articles 207 and 212. The Antarctic Treaty System⁵⁴ has prohibited mining under a comprehensive environmental protection regime, but a long-run solution for stopping the evolution of mineral exploitation is not in sight. The protocol's 50-year ban rule has temporarily resolved some discrepancies, but this issue can be reopened at any time and certainly will be in the future.⁵⁵

Positive Overall Assessments

Other assessments are more positive. Sands counters his own dismal statistics on compliance in general with much more encouraging data for the International Whaling Commission and the Montreal Protocol.⁵⁶ Susskind points to countries previously uncaring about natural resource management that now make explicit commitments to be responsible.⁵⁷ He also cites the increased number of whales, the recognition of wetlands preservation and the rescue of 30 million hectares of wetlands (an area the size of Italy), control of mineral development in the Antarctic, protection of 80 "natural world heritage" sites, and clear delineation of migratory flyways.⁵⁸ Also, many provisions of the Law of the Sea have come into practice. Susskind's list goes on and includes reference to the ozone treaties and those on hazardous waste transport.⁵⁹ International law jurist Jose De Yturriaga also locates strengths in his assessment of the Law of the Sea.⁶⁰

Tullio Scovazzi concludes that "there is hardly any doubt that treaties are considered to be the best tools in improving the protection of the environment at the international level."⁶¹ The Global Environment Outlook concluded: "World-wide, the greatest progress has been in the realm of institutional developments, international co-operation, public participation, and the emergence of private-sector action. Legal frameworks, economic instruments, environmentally sound technologies, and cleaner production processes have been developed and applied. EIAs have become standard tools."⁶² The policy grandfather of domestic EIA law, Lynton Caldwell, has in his later analyses praised the contribution of international global law.⁶³ He recognizes a body of precedent-setting law and practice as having the character of an international constitution for the world environment.

Juxtaposing his assessment with Henry Kissinger's view of diplomacy as the exercise of competitive power politics among nations, New York Times environmental reporter Philip Shabecoff states that

the rise of green diplomacy in the latter part of the 1980s seemed to reflect something different: a growing awareness of a new realpolitik that must be addressed not by competition but by cooperation and not by unilateral exercise of sovereign power but by pooling that power to confront the complex array of environmental and economic problems that threaten all nations.⁶⁴

He enumerated the targets of international environmental law to demonstrate its importance: nothing is more real than poverty and hunger, disease caused by polluted water, massive relocations of people to avoid scarcity, and global climate change and ozone depletion.

The Environmental Law Network International balances some of its negative analysis, noting that environmental law principles "are by no means devoid of legal force and effect."⁶⁵ The International Court of Justice (ICJ) has given weight to certain of those principles, as have individual nation-state courts, including the German Federal Constitutional Court. Although the ICJ's pronouncements are more recommendatory than prescriptive, such as in the Gabcikovo-Nagymaros case between Hungary and Czechoslovakia-Slovakia over damming of the Danube and interpretation of a treaty on locks and other facilities, the U.N. judicial organ is helpful in promoting "a process of ongoing negotiations geared toward achieving a political result that is mutually acceptable."⁶⁶

Hillary French, an environmental policy analyst with Environmental Defense, attributing a long list of achievements at least in part to international agreements, noted that sulfur dioxide (SO₂) emissions fell substantially in Europe from 1980 to 1990, the health threat of radiation from atmospheric testing decreased dramatically since the 1963 test ban, and the percentage of "clean and safe" beaches in the Mediterranean grew impressively since the adoption of the 1975 MAP.⁶⁷ Also, whale harvests have fallen from tens of thousands to tens since the International Whaling Commission tightened its regulations; poaching of elephants dropped precipitously in Africa since 1989; Antarctica has been protected from mining, military activities, and other [33 ELR 10392] environmentally degrading actions; and hazardous waste imports have fallen. Nonetheless, for each success, French names a rather daunting_"remaining challenge."⁶⁸

Christopher Stone, a leading American authority on environmental and international environmental law, in a comprehensive treatment of law and other institutions as means of protecting the global environment, identifies several significant weaknesses in environmental treaties, most notably vagueness in language, and then concludes:

The notion of more ambitious multilateral conventions will and should go forward …. Nonetheless … no one should doubt that even without "hard" sanctions backing them up, treaties, and even vague, aspirational declarations of principle, have significant effects on patterns of behavior in the international community. Indeed, no one should doubt the salutary effects in the mere process of bringing diplomats together to discuss global problems.⁶⁹

Other analysts focus on the strengths of particular treaties, such as: the effective use of trade-related environmental measures (TREMs) to promote compliance in the Basel Convention, numerous innovations including the funding mechanism for TREMs in the Montreal Protocol, and effective regulation of the international trade in pesticides. Peter Hough concluded that (unlike other pesticide-related issues such as industrial safety and environmental pollution) "the rules established by UNEP and the [Food and Agriculture Organization (FAO)] have been observed by both the chemical industry and government and have had an impact on political behavior."⁷⁰ Hough's assessment is important because the most powerful affected actors—the agrochemical industry and the United States and Great Britain—did not support the establishment of the FAO and UNEP rules, which appeared, they proclaimed, "not to be in their interests."⁷¹

In their thorough review of 14 case studies, Kal Raustiala, Eugene Skolnikoff, and David Victor, innovative scholars in the field of international regulatory effectiveness, concluded that for most of the 8 areas of regulation they identify, "regulated behavior has changed markedly in the past two decades."⁷² They cite virtual elimination of ozone-depleting substances (ODS), dramatic decreases in emissions of SO₂, stabilization of emissions of nitrogen oxides, the banning of hazardous chemicals and pesticides, protection of whales, and elimination of dumping at sea of high-level radioactive wastes—all at least in part related to implementation of international environmental law. Edith Brown Weiss and Jon J. Jacobson, leading figures, respectively, in the fields of environmental law and international trade law, at about the same time concluded that compliance with the World Heritage Convention has been quite respectable; that notwithstanding some weaknesses, CITES has been linked to an end of trade in some species; that despite major problems with compliance, the London Dumping Convention has been relatively successful, with decreases measured in the millions of tons of dumped wastes; and that the Montreal Protocol has been unusually effective.⁷³ Pieter Van Heijnsbergen, a lecturer and member of the Commission on Environmental Law of the World Conservation Union, also concluded that CITES "functions well," despite noting that one-third of the Parties do not have adequate implementing legislation and that the convention does not have a binding dispute resolution mechanism.⁷⁴

One quarter century after the UNEP Regional Seas Program was initiated, Alan Boyle and David Freestone found a mixed record that included some positive results.⁷⁵ The MAP has established, with "a measure of success," the legal and institutional basis for coordination of national programs and measures. Potentially devisive issues, such as interregime control of land-based pollutants, have been addressed through the MAP process. The Kuwait Action Area agreement has successfully introduced EIA into its region and has fostered an innovative approach to control of land-based pollution. Similar successes with regional control of land-based and other emissions have been achieved in the North Atlantic and the Baltic Sea. Nonetheless, again, there are "major short-comings" in all the regional arrangements, including poor implementation capability, insufficient attention to dispute resolution, and neglect of civil-liability strategies.

As to oil pollution of the seas, Ronald Mitchell, the international public policy expert and professor of political science, contrasting the MARPOL regime to that of an earlier convention, found that MARPOL has achieved nearly universal compliance.⁷⁶ He gave several explanations for its success: transparency of actions, provision of potent and credible sanctions, and reduced implementation costs for states because MARPOL builds on established infrastructures. Emeka Duruigbo, a Canadian law professor and human rights specialist, also recognizes the value of MARPOL's compliance-promoting devices (with near universal installation of ballast tanks and oil washing), although he notes challenges to enforcement related to limitations on jurisdiction, part of a "predicament" that hangs "like an albatross around the neck of international law generally."⁷⁷

[33 ELR 10393]

Okowa's assessment of the procedural requirements of consultation is fairly positive, and her overall conclusion regarding this type of treaty obligation (procedural environmental) is at least mixed:

In many contexts the obligations are not defined with precision, and much uncertainty persists as to their essential components …. As found in treaty regimes, [however,] there is little doubt that these obligations have legal force for the parties to them. To that extent the obligations they impose are strictly speaking justiciable, notwithstanding their general imprecision …. As independent legal duties, procedural obligations are likely to influence the behaviour of even the most reluctant of States.⁷⁸

Assessments of soft law, customary law, and framework law also vary. The campaign to control high-seas pelagic driftnet fishing through nonbinding legal means "seems to have succeeded."⁷⁹ U.N. resolutions are being reevaluated with increasing respect for their effectiveness.⁸⁰ The International Law Commission concluded that "there is overwhelming support for the doctrine of equitable utilization as a general guiding principle of law for the determination of the rights of States in respect of the non-navigational uses of international watercourses."⁸¹ But Andre Nollkaemper, a professor of public international law from Amsterdam, characterized the doctrine as "highly indeterminate," based on an unwieldy weighting of 17 factors. It is "an openended framework for political compromise without an independent legal identity …. The flexibility of the principle means that it easily dwindles into a 'might-is-right' paradigm."⁸² Helge Bergesen and Trond Botnen conclude that the activities of the Commission on Sustainable Development have remained in a very preliminary stage.⁸³ Robert A. Kaplan concludes that customary law has not been able to address adequately the challenge of subseabed nuclear waste disposal.⁸⁴

A Closer Look: Five Case Studies

These very different assessments reflect the variable success of individual efforts, but they also underscore the different criteria for evaluating success, different understandings of the goal of an international law of the environment, and different accounting schemes. Another way of looking at the record is offered by detailed case studies that examine evaluative criteria and give a more textured picture of success and failure and the methods used to reach those conclusions. The following cases cover international attempts to protect the air (Montreal Protocol and its amendments),⁸⁵ water (Black Sea Environmental Program), and land (Basel Convention)⁸⁶ and, more generally, environmental protection and enforcement (the North American Free Trade Agreement (NAFTA)-related North American Agreement on Environmental Cooperation).⁸⁷ Global climate change is the focus of the last study, which addresses earth systems more generally.

Air: The Montreal Protocol and Its Amendments

No consensus has emerged on which international environmental law has been the most successful. Among the most broadly acclaimed treaties, however, is the Montreal Protocol and its amendments. The protocol, which aims to reduce the release of gaseous chemicals that damage stratospheric ozone, is hailed as a model for north-south cooperation on global environmental problems.

Certain chemicals used in industrial and industrializing societies have caused an increase in the amount of ultraviolet radiation that reaches the earth's surface. Refrigerants (chlorofluorocarbons (CFCs)) used in private homes and automobiles, flame retardants (halons) found in fire extinguishers, and other gases react with ultraviolet radiation when they reach the stratosphere. Chlorine-free radicals are released by the ultraviolet radiation, and a series of chemical reactions is catalyzed. "The natural stratospheric removal processes for ozone are then supplemented by chlorine-based sequences …. The average ozone molecule survives for a short time and less ozone is present than before."⁸⁸ The reactions upset the natural processes of ozone creation, destruction, and re-creation. (A single chlorine atom can destroy thousands of ozone molecules in the stratosphere.) As a result, the protective layer of ozone that surrounds the earth is weakened and the earth's surface is exposed to elevated levels of ultraviolet radiation. Increased exposure to ultraviolet radiation induces cataracts, suppresses or destroys the human immune system, and causes some forms of skin cancer. It endangers many species of phytoplankton, essential to the survival of nearly all fish populations. Man-made materials also suffer damage.

None of this was known when CFCs were first produced in 1928. According to the standards used at the time to test new chemicals, CFCs were thought to be safe. They were not toxic. They were not flammable, and they are chemically stable in the lower atmosphere. The inventor of the first CFC compound sought to illustrate its safety by inhaling its vapors and using his CFC-loaded breath to blow out the flame of a candle.⁸⁹

By the 1980s, use of CFCs and other ODS was well established in industrialized countries. Their production and use in developing countries had been small by comparison, but [33 ELR 10394] absent the presence of accessible and affordable alternatives, these nations would be likely to increase use greatly. Scientific understanding of the nature, magnitude, and consequences of the CFC problem was growing, but the issue was still controversial in the 1970s. In 1974, Mario Molina and F. Sherwood Rowland published a paper showing the chemical process by which CFCs, which remain in the atmosphere for decades, could cause continued damage to stratospheric ozone. The paper launched a heated scientific debate, and industrial acceptance of the existence of risk was slow. As of 1980, leaders at DuPont, the world's largest CFC producer, maintained that the environmental threat posed by CFCs was not established well enough to warrant continuing research on replacement compounds.⁹⁰

Later, when the dangers were recognized, it was clear that the possible effects of reduced levels of stratospheric ozone could not be controlled by any nation in isolation. Without international cooperation, efforts to cut back on production in one country would likely be offset by activities elsewhere. Some effects of ozone depletion are concentrated in particular nations, but others are more diffuse. Many political leaders were begininng to conclude that an international agreement was essential to reduce the likelihood and magnitude of potentially devastating damage to life around the globe.

International Environmental Law Response

In 1976, the Governing Council of UNEP organized a meeting of intergovernmental organizations (IGOs) and nongovernmental organizations (NGOs) to review information about the ozone layer, and one year later UNEP began working on ways to address the ozone issue. It created a coordination committee on the ozone layer in collaboration with the World Meteorological Organization (WMO). This group of IGO, NGO, and national and scientific organization representatives was to produce a semiannual assessment of the depletion of the ozone layer and its effects. There followed several important events. In 1985 the Vienna Convention on the Protection of the Ozone Layer was adopted. It called for cooperation on many matters: on research and information exchange on human effects on the ozone layer and human health effects of modification of the layer; on formulation of protocols and annexes; on basic scientific research; and on exchange of relevant scientific, technical, socioeconomic, commercial, and legal information.⁹¹ It established a Conference of the Parties (COP) to adopt protocols. It described how amendments to the convention would be made by consensus, except, "as a last resort," by a three-fourths majority of Parties present and voting; how amendments to any protocol were to be made; and how annexes were to be adopted and amended. Settlement of disputes would be by negotiation, good offices, or mediation by a third party, and arbitration or submission to the ICJ.

The convention solidified the commitment to find ways to protect the ozone layer and improve understanding of stratospheric ozone reduction, but it contained no specific CFC standards or regulations. As late as December 1986, only half a dozen nations had ratified it. The next two years witnessed greater public interest in the ozone problem, further scientific publications reporting on its severity, the recognition by industry (most notably DuPont) that CFC substitutes could be developed within a small number of years, and continued expert workshop activity under the auspices of UNEP.

In 1987 governments of developed and developing countries agreed to the Montreal Protocol on Substances That Deplete the Ozone Layer, despite continuing uncertainty about the existence of damage to the ozone layer and conflicting political interests over possible courses of action. Under article 8 of the Montreal Protocol, Parties must establish means of determining noncompliance with the protocol and they must also determine how to treat noncompliance. The Copenhagen Amendments⁹² met this requirement by creating an implementation committee constituted of 10 Parties and giving that committee the authority to receive submissions by a Party regarding reservations about another Party's implementation of protocol obligations. The committee makes recommendations to the Meeting of the Parties. In Copenhagen hydrochlorofluorocarbons (HCFCs) and other substances were added to the list of controlled substances. The 1997 Montreal Amendments determined several measures that the Meeting of the Parties would be able to take in cases of noncompliance, namely: suspend protocol privileges, issue warnings, and provide financial and technical assistance. This is done through the Montreal Protocol Multilateral Fund, the institutional characteristics of which are were laid out in Article 10 of the 1990 London Amendments.⁹³

There are several fundamental requirements of the protocol regime. Specific timetables for restrictions have been created, and a phaseout or ban of most of the ODS has been adopted; for some substances the requirement is a freeze on production. Cooperation in scientific research and exchange of information are promoted. Abatement measures for ODS have been adopted. Those substances now include CFCs, halons, carbon tetrachloride, methyl chloroform, fully halogenated CFC, HCFC, hydrobromide fluorocarbons, and methyl bromide. A permanent funding entity is in place and trade restrictions can be imposed for noncompliance. Member countries commit to establish licensing systems for trade, and a mechanism for avoiding disputes and settling them when they are not avoidable, the noncompliance procedure has been initiated. The regime adopted the revolutionary concept in international law of simplified majority decisionmaking, and no reservation is allowed. The ozone regime, in addition to the state Parties, includes the Meeting of the Parties, the Implementation Committee, and the UNEP Ozone Secretariat, which is empowered, among other matters, to initiate a formal dispute resolution procedure, a first in international law.⁹⁴

Ambassador Richard Benedick, who led U.S. participation in the negotiations for the Vienna Convention and the Montreal Protocol, said that negotiations were characterized by "a sense of history making."⁹⁵ At the conclusion of [33 ELR 10395] the negotiation of the Montreal Protocol, Mostafa Tolba, the UNEP executive director whose strong personality had helped build support for substantive commitments in the protocol, stated that "the environment can be a bridge between the worlds of East and West, and of North and South …. This Protocol is a point of departure … the beginning of the real work to come."⁹⁶ This agreement was achieved despite the lack of measurable evidence of damage to the ozone layer at the time.⁹⁷

Assessment: Physical Parameters

The Montreal Protocol and its amendments will lead to a reduction in the magnitude of loss of stratospheric ozone in the 21st century provided that signatory nations comply with their commitments. Because the ODS that are currently in the stratosphere will continue to affect stratospheric ozone for a number of decades, the problem has not been eliminated.⁹⁸ Assuming that all commitments made in the Montreal Protocol and its amendments are met, the ozone layer is predicted to stabilize near the year 2050,⁹⁹ although some analysts conclude that it will be the middle of the century before an adequate comprehensive assessment of the regime's impact can be undertaken.¹⁰⁰

In the United States, many organizations that have used large amounts of substances regulated by the Montreal Protocol are now exemplary in their compliance, especially McDonald's (no more CFCs in packaging), Whirlpool (CFC-free refrigerants), and the U.S. military (phaseout of halons in fire-fighting equipment). There have been some problems associated with the incentive-based mechanisms for industrial compliance, most notably the black market in chlorofluorocarbons. Elizabeth DeSombre argues that changing economic, technological, and regulatory conditions will reduce the magnitude of the problems over time.¹⁰¹ Other challenges, however, are not based on bad faith but are simply reflections of capacity to implement. The United Kingdom, for example, faced with destroying CFCs in the foam of millions of refrigerators, lacks adequate facilities to perform the task.¹⁰²

Meanwhile, measurements of CFCs in the atmosphere indicate continued growth in absolute terms but a decrease in the rate at which CFCs are added to existing levels.¹⁰³ Evidence from the U.S. National Aeronautics and Space Administration and the National Oceanic and Atmosphere Administration shows that the loss of stratospheric ozone continues to affect all latitudes outside the tropics, with areas near the South Pole experiencing the greatest losses.¹⁰⁴

The worst year to that point for the size of the ozone hole was 1998.¹⁰⁵ Because temperatures in the stratosphere over the South Pole were warmer in 1999, the ozone hole did not grow as large as it did in 1998.¹⁰⁶ Global climate change is expected to contribute to the size of the ozone hole. Although global climate change is anticipated to increase average temperatures near the earth's surface, it is expected to decrease temperatures in the stratosphere. Colder temperatures in the stratosphere create conditions conducive to larger losses in stratospheric ozone due to CFCs and other ODS.¹⁰⁷

Assessment: The Contribution of International Environmental Law

Expert assessments of the effectiveness of the ozone regime are predominantly positive. The Vienna Convention, the [33 ELR 10396] Montreal Protocol, and subsequent amendments are structured so that efforts to address stratospheric ozone reduction can evolve with improvements in scientific understanding of the situation and political willingness to act. Flexibility of the regime has enabled international cooperation to reduce the use of ODS. The flexibility is made possible by three characteristics of the agreement: the convention-protocol structure, the adjustment system, and the role of the administrative bodies created to implement the protocol.¹⁰⁸ Success of the regime derives in part from UNEP's decision to involve both environmental NGOs and industry groups, in this case a concentrated class.¹⁰⁹

The convention-protocol structure involves progressive levels of political commitment and technical specificity. Through the convention, signatory Parties agree to support a general idea and to participate in periodic negotiations over details. The details are noted in the protocols and their amendments subsequently negotiated. Parties are obliged to comply with the convention, protocols, and amendments agreed to prior to their ratification, but they can choose among subsequent protocols and amendments.

The adjustment system, in contrast, allows substantial scientific but limited political flexibility. To adjust the specific commitments of the Montreal Protocol, e.g., the time frame for ending the use of a chemical, a majority of developed and a majority of developing countries (provided that their numbers combine to equal at least two-thirds of the Parties to the agreement) must vote in favor. If they do, then all of the signatory Parties are obliged to comply, whether they voted in favor of the change or not.

The organizations created by the Montreal Protocol to oversee implementation and the expenditure of funds have been very effective in insisting on coordination among work programs and in reporting efforts and concerns at each Meeting of the Parties. In addition, the Parties have established a number of subsidiary bodies, which facilitate ongoing working-level communication on new issues.

Another feature of the Montreal Protocol's flexibility is its noncompliance procedure. It enables a fast and conciliatory approach to noncompliance.¹¹⁰ Under the procedure, Parties that do not comply with their commitments are subjected to informal persuasion and a "politics of shame." This strategy relies on public reporting, economic incentives, and multilateral pressure from other signatory Parties. The noncompliance procedure regime is a dispute avoidance and settlement mechanism internal to the regime, based on a collective reaction rather than confrontational bilateralism common to formal dispute settlement mechanisms. O. Yoshida considers it more flexible, simple, and rapid than traditional judicial settlements and claims that it demonstrates great respect for the sovereignty of Member states.¹¹¹ Flexibility is also evident in the protocol's use of economic incentives to promote industrial development of technologically derived alternatives and the participation of developing countries in the phaseout of ODS.

Perhaps the most important means by which the protocol solicits a poorer country's participation is its willingness to hold industrialized and developing countries to different standards. For instance, less developed countries consuming ODS below a specified level (0.3 kilograms per capita) can delay compliance with their commitments under the protocol for 10 years beyond their scheduled implementation dates.¹¹² In addition, the protocol fund helps developing countries meet the costs incurred by eschewing the use of ODS. The protocol also contains technology transfer mechanisms to facilitate the diffusion of replacement technologies to developing countries. Nonetheless, there are varying degrees of responsiveness among developing nations, linked in part to differing assessments about north-south relations encompassed in the regime. China, for example, was more accepting than India of the Montreal Protocol.¹¹³

The Montreal Protocol, as the first "precautionary treaty," provides a precedent that diplomats can draw on in future negotiations on global environmental problems fraught with scientific uncertainty.¹¹⁴ In particular, it employs technology-forcing mechanisms to enable implementation as future hazards and circumstances require.¹¹⁵ The protocol regime entities have been active and effective. By the end of 1997, for example, the Meeting of the Parties, in accordance with the Rules of Procedure, had already made more than 200 decisions, many of them related to noncompliance and ODS regulation.¹¹⁶

Even Prof. Ronnie Lipschutz, who is skeptical about traditional top-down treaty-based regimes, concedes that the Montreal Protocol "seems to have worked."¹¹⁷ "The ozone agreements have been ratified by most of the countries of the world and include provision for the transfer of technology and resources to Third World countries that might otherwise find themselves put at an economic and technical disadvantage by the ban on [ODS]."¹¹⁸ Technology analyst Alan Miller and atmospheric scientist Mack McFarland are sufficiently positive to advise that the climate-change regime might do well to explore characteristics of the Montreal Protocol: (1) the power of scientific consensus, even when under conditions of some uncertainty, (2) the value of affected industries working with government and environmentalists, (3) the economic benefits of early action, and (4) the need for recognition of the impacts on developing countries.¹¹⁹

There have been criticisms of the regime. There is a risk of noncompliance with its rules because it is not everywhere clear what compliance means.¹²⁰ Norms are not well defined. Furthermore, choice of the World Bank as the main implementing agency of the fund has been strongly attacked because, allegedly, the bank continues to fund projects that [33 ELR 10397] use technologies that rely on ODS. The bank also reportedly established markets in the south for destructive, obsolete technologies.¹²¹ The financial assistance mechanism sets a precedent and creates expectations for similar subsidies in other environmental agreements. A demand by developing countries for financial and technical help may be construed as a failure to take responsibility for a share of the costs of protecting the global environment. In a political atmosphere in some nations of waning support for overseas development assistance, these demands can weaken diplomatic support for international environmental agreements. Furthermore, if the assistance decreases the amount of profit obtainable from research investment in replacement substances, it will reduce the incentive for industrialized countries to develop new technologies and undermine research efforts in developing nations as well. Provision of subsidies may also result in perverse rewards for developing countries to increase production of ODS in the short run. China exploited such an opportunity for short-term gains from ODS production.¹²² Finally, although experts differ, some observers feel that illegal CFC trade is inevitable and will continue because of problems inherent in the regime, such as exemptions for recycled CFCs¹²³ and a grace period for developing countries.¹²⁴

Conclusions

The Montreal Protocol with its amendments is a historic precedent. In the face of a severe global environmental problem steeped in scientific uncertainty, industrialized and developing nations agreed to an innovative arrangement. One of the new principles set forth by the protocol is the idea that nations should take precautions against plausible environmental threats even if irrefutable evidence of their existence is not yet forthcoming. Another principle applies to the distribution of costs and benefits across nations that bear common but differentiated responsibilities for past and future threats to the global environment. This approach is characterized by differentiated commitments among signatory nations and technology transfer to assist developing nations to reduce the environmental damage that their industrialization is likely to cause. Because of the development of a black market in ODS, the ozone layer is unlikely to stabilize as soon as scientists had predicted. As subsequent provisions of the agreement come into force, however, blackmarket demand is expected to subside. Also of central concern to policymakers in the international arena are the possible countervailing effects of controls on certain climate-change gases.

In addition to the flexibility that allows the regime to incorporate an evolving scientific consensus and the regime's use of innovative strategies to promote compliance, a few other factors help explain the considerable success of the Montreal Protocol. The goals of the agreement are clear, precise, and straightforward, and their realization is subject to objective evaluation. Entry into the agreement was not a major obstacle to the agreement's creation. Through an innovative multilateral fund, support has been adequate to help meet defined goals. The Secretariat and its subsidiary bodies have been professional and effective. The approach to dispute resolution is clear, recognizing increasing outside assistance if required. The regime builds on ever-developing political acceptability linked to the private sector's recognition of the importance of the ODS problem and industry's role in creating substitutes.

Water and the Great Seas: The Black Sea Environmental Program (BSEP)

The Black Sea efforts represent one of more than 40 in the UNEP Regional Seas Program. The BSEP is not the most developed, and it is not representative of the degree of success reached in other seas; however, its history is useful for describing the challenges to a regional water effort and for isolating the factors linked to the success of such a regime.

The Black Sea region denotes the six riparian states, a presently unrecognized former Soviet republic (also riparian), and the neighboring states that are part of the mammoth watershed of the Black Sea. The riparians are Bulgaria, Georgia (Abkhazia), Romania, the Russian Federation, Turkey, and Ukraine. Major rivers that drain into the sea include the Danube, Dnieper, and Don, which rank second, third, and fourth among major European rivers. The sea's surface area is one-fifth the size of its catchment area, and its depth in parts exceeds two kilometers. The only ocean outlet to this gigantic water resource is the narrow and shallow 19-mile-long Bosporus Channel, established as an international sea lane under a 1936 convention. The environmental problems associated with the Black Sea are immense, and its environmental management is a formidable task.

While scientists analyze and debate just exactly how serious the situation is, pollution and ecological degradation of the Black Sea is on almost every list of major environmental problems in the world.

Under the Soviet system (which in a sense was an international effort, albeit a peculiarly centralized one), a large number of specialists in all areas of relevance to water-body management worked on Black Sea environmental problems; however, connections between their work and official decisionmaking were not strong. As a Georgian retrospective summarized:

National environmental legislation was often based upon objectives and standards which were too strict to be enforced or were not linked to effective economic instruments such as fines or permit charges. As a result of years of isolation, many institutions lacked the modern equipment and know-how necessary to face the challenge of providing reliable information on the state of the environment itself.¹²⁵

The problems were even greater than this summary suggests, involving lack of coordination among the Soviet states and their neighbors, lack of public participation, nontransparency of decisionmaking, and absence of [33 ELR 10398] other factors that promote implementation, such as a modern regulatory approach, technical assistance, and adequate funding.

The environmental problem in the Black Sea is multifaceted, ranging from loss of landscape to the extinction of species. The Black Sea's ecosystem has changed "irreversibly,"¹²⁶ and by the early 1990s, terms such as "dead," "close to collapse," and "unholy mess" were common descriptors of the status of this giant and beautiful natural resource. Widespread pollution discourages or destroys recreation, tourism, biodiversity, fishing, and water quality. The destruction of the fish species alone in the sea is "one of the greatest ecological catastrophes" of our time.¹²⁷

The riparians include Turkey and nations whose cleanup technologies, monitoring stations, and environmental laboratories are in considerable disrepair. As the watershed area (the drain) for more than 30 rivers, the sea receives the effluents of 160 million people from 17 nations, one-third of Europe. It is also polluted by oil and the radiation fallout from the accident at Chernobyl and, by some accounts, by heavy metals including chrome, copper, lead, mercury, and zinc.¹²⁸

A great quantity of organic matter from rivers feeds the Black Sea. In the Bosporous Strait alone the untreated sewage of 10 million people is regularly dumped, and that represents only about 6% of the pollutants received into the Black Sea.¹²⁹ Dissolved oxygen cannot complete the process of decomposition. Organic material strips oxygen from sulfate ions, creating hydrogen sulfide, a toxic gas. The Black Sea "is the single largest reservoir of hydrogen sulfide and the biggest natural anoxic basin in the world. To a depth of 150-200 meters, the sea is teeming with life, but below that level, the water is 'anoxic' or 'dead.'" With no oxygen there are no fish, shellfish, or bacteria,¹³⁰ a condition that in part dates back to the waning of the last ice age as rising waters from the Mediterranean entered the Black Sea basin.¹³¹

The loss of biodiversity is a major problem resulting from eutrophication, "clearly the main ecological concern in the Black Sea."¹³² Eutrophication is the overfertilization of a water body with nitrogen and phosphorous compounds. In the Black Sea, that results from fertilizers and urban and industrial sewage. An overproduction of phytoplankton and reduced sea grass and algae result in a concomitant loss of crustaceans, fish, and mollusks. Besides, Mnemiopsis leidyi was introduced into the region by accident from the eastern seaboard of America in the ballast water of a ship. This jelly-fish-like species consumes fish larvae and tiny animals that small fish feed on. The species reached a mass of 900 million tons, which is 10 times the annual fish harvest worldwide. Many fish species were pushed to extinction, and the fish catch in the sea degenerated to 250,000 tons in 1991 from a total of 850,000 tons less than a decade earlier. One estimate is that the number of fish species in the sea dropped from around 25 to only 3 to 5 in the 10-year period from 1986, when the sea had five times the fish production of the Mediterranean, to 1996.¹³³ Giant sturgeon are endangered, other sturgeon species are depleted, and many other species are either depleted or in serious decline. In addition to pollution effects, sturgeon and shad cannot run upstream to breed because of damming of the big rivers that drain into the sea.

Tanker and operational accidents have been sources of oil pollution (about 45,000 tons annually), as has the direct dumping of solid waste into the sea or onto wetlands. The pollution from rapid oil industry development (1,500 tankers and tens of thousands of other cargo boats carrying 32 million tons of oil pass through the Bosporous Straits in each direction annually), sedimentation, beach erosion, and the overall absence of coastal zone conservation are also strongly felt. About 82 million tons of hazardous and explosive materials also pass through the strait each year.¹³⁴

International Environmental Law Response

The BSEP, developed under the auspices of UNEP and the Global Environmental Facility (GEF), is one response to the sea's degradation. The program was established in the early 1990s and modeled on the 1976 Barcelona Convention for the Mediterranean Sea.¹³⁵ Bulgaria, Georgia, Romania, the Russian Federation, Turkey, and Ukraine signed the Convention for the Protection of the Black Sea Against Pollution in April 1992 in Bucharest,¹³⁶ and it was rapidly ratified. The Ministerial Declaration on the Protection of the Black Sea¹³⁷ followed; it was signed in April 1993 in Odessa. Reflecting the thrust of the Agenda for the Twenty-First Century adopted at the Rio Summit in 1992, it declared among other goals "protection, preservation and, where necessary, rehabilitation of the marine environment and the sustainable management of the Black Sea."¹³⁸ Furthermore, countries were to elaborate and implement national integrated management policies, including legislative measures and economic instruments, in order to ensure sustainable development. The declaration encourages public participation (including by NGOs), the precautionary principle, use of economic incentives to promote environmental protection, [33 ELR 10399] environmental impact assessment, environmental accounting, and coordination of regional activities.

The Bucharest Convention on the Protection of the Black Sea Against Pollution entered into force on January 15, 1994. Other affiliate international legal instruments that make up the BSEP regime include the Protocol on Protection of the Black Sea Marine Environment Against Pollution From Land-Based Sources,¹³⁹ the Protocol on Cooperation in Combating Pollution of the Black Sea Marine Environment by Oil and Other Harmful Substances in Emergency Situations,¹⁴⁰ and the Protocol on the Protection of the Black Sea Marine Environment Against Pollution by Dumping (not yet in force).¹⁴¹

Initially GEF, as well as Austria, Canada, the EU, Japan, the Netherlands, Norway, and Switzerland provided funding. Funding also comes from UNEP and is to be contributed by the Member countries.¹⁴² The Program Coordination Unit of the BSEP was located in Istanbul. In spring 1998, it was replaced by the Project Implementation Unit, comanaged by the U.N. Development Program, with the hope that it becomes a precursor to a secretariat to be financed by the Member countries.

The regime that evolved was noteworthy for at least two reasons. First, it came into being very quickly. Nation-states that were on opposite sides in the Cold War developed ways (theoretically, at least) to cooperate a few short years after Turkey and the former Soviet Union states developed formal relations. Second, rather than easing into the world of international environmental law, the Parties become the first to adopt a regional seas agreement built on the principles of Rio.

In 1993, three objectives of the BSEP were highlighted: (1) improve the capacity of Black Sea countries to assess and manage the environment; (2) support the development and implementation of new environmental policies and law; and (3) promote sound environmental investments. Activity centers to be hosted by the individual Black Sea countries were created.¹⁴³

In October 1996, the Black Sea border countries signed the Strategic Action Plan.¹⁴⁴ Its preamble reaffirms the commitment of the Member states to the rehabilitation and protection of the Black Sea and the sustainable development of its resources. One element of the short plan, which the BSEP describes as a flexible document responsive to contingencies, sets out principles seen as the basis for international cooperation. In addition to reaffirming ideas in the 1993 Ministerial Declaration, it emphasizes regional cooperative and coordinated activity and enhanced transparency through rights of access to information and improved public awareness.¹⁴⁵

Assessment: Physical Parameters

There is some scientific debate about several aspects of the Black Sea's environmental status, including the extent of the human contribution to the hydrogen sulfide cycles and the amenability to mid-scale interventions. Another area of scientific uncertainty is the discharge of chemical and microbiological contamination in coastal and marine areas. Only in recent years has there been movement toward standardization of the protocols and methodologies for scientific investigation, even within the participating nations.¹⁴⁶

As of 1996, a BSEP report could provide a somewhat more encouraging perspective of the physical status of the sea. The Black Sea Transboundary Diagnostic Analysis "clearly demonstrates that the Black Sea environment can still be restored and protected." The Strategic Action Plan of 1996 concluded that "environmental monitoring conducted over the past 4-5 years … reflects perceptible and continued improvements in the state of some localized components of the Black Sea ecosystem." Furthermore, there are reports that Mnemiopsis, although still a plague, is in decline and that water quality along the Turkish coast is within national limits, not a "desperate situation."¹⁴⁷ Improvements have not been linked explicitly to international environmental law, however, and may be a result of other factors, such as the extraordinary economic downturn in the former Soviet Union after the collapse of communism.

Assessment: The Contribution of International Environmental Law

The program has had serious problems with implementation, including very slow realization of the commitment to modest funding by the Member states. At his departure, its first head gave the program an extraordinarily candid evaluation:

The truth … is that very little has been done to fulfill the initial commitment made to the people of the Black Sea countries when their six legislative assemblies ratified the convention in 1993 … decisions taken through democratic processes have been disregarded and political momentum has been lost …. This scenario is a depressing one.¹⁴⁸

Some factors linked to successful implementation of international environmental law are clearly present in the Black Sea regime, not only in relationship to the specific entity but also in the larger context of institutional initiatives. The analysis of other elements suggests, at least for now, slow movement toward international water cooperation in [33 ELR 10400] the sea. "BSEP appears to have contributed little to overall regional awareness about environmental problems or their solutions, except for people who have participated directly in the BSEP education and publicity efforts."¹⁴⁹

Major barriers to cooperation include the emergence of two types of inward-looking movements in the region, nationalism and religious fundamentalism. Also, the infrastructure for communicating across national boundaries, even when the intention is established, is very limited.¹⁵⁰ Furthermore, economic conditions hinder the realization of the full potentials of the scientific and environmental communities in the former Soviet states. A leading example is Romania, where economic problems combined with concerns over sovereignty threaten to make the BSEP largely a "dead letter."¹⁵¹ Finally, as in many other regional treaties, dispute resolution methods are not developed.¹⁵²

There are some other countervailing forces in the region that make prospects for the refinement and implementation of new regimes more promising. Among them are:

1. Scientific findings on the nature and scope of the environmental challenge. The search for better data, more precise models, better equipment to test models, and basic science to underpin the models is an opportunity for cooperation recognized by most actual and potential participants in the Black Sea processes. The region has a rich resource of scientific expertise. Besides, the international community, environmentally progressive nation-states, and U.N. organizations have targeted the Black Sea as an area deserving major contributions of technical expertise and funding.

2. Shared perspectives. The Black Sea has had immense historical importance for each of the riparians. Common understandings on the environmental challenge may be more readily achieved than on other matters of international policy, on which cultural, ethnic, and religious differences make consensus difficult. Also, there is increasing interest, shared by each of the riparians, in economic development. The relative success of the BSEP, a parallel regional effort, demonstrates that trade and commerce may be effective vehicles for promoting cooperation.

3. Further, the Black Sea regime, at least de jure, recognizes new principles of international environmental law. Numerous new NGOs are rapidly appearing in the region. Removing obstacles to their participation in decisionmaking may be an effective means for reaching environmental goals, more so than creating official new government structures¹⁵³ or adopting additional agreements. Under evolving national and transboundary legal systems, this may mean granting legal standing to Parties, individuals, and NGOs not formerly recognized in the decisionmaking structures of some of the Parties.¹⁵⁴

4. Epistemic communities may further develop. Epistemic communities are communities without borders—of scientists, lawyers, engineers, or other specialists. Their Members share core beliefs and understandings and have strong alignments with objectives that transcend their affiliation with a political jurisdiction or position.¹⁵⁵ In the Black Sea region, at least for certain goals, they may play somewhat the same function as they did in the early years of the MAP. They may demonstrate how to cooperate on international matters. They may create new understandings of appropriate responses to environmental degradation, making policy choices a bit easier for government officials. They may give governments supporting rationales to take difficult, even unpopular, steps to control pollution. They may attract much-needed funding as outside groups become impressed with regional cooperation. They may offer a means for transferring technology.

The fragility or strength of the BSEP depends in significant part on the commitment of leaders in the area. These leaders are involved in a two-level game: one level is international, the other domestic. At home, there are several constraints on a leader's ability to cooperate across national boundaries. The economic and political challenges in the Black Sea region, with problems of currency devaluation, [33 ELR 10401] ethnic conflicts, and priority setting, serve as significant obstacles to an official's attention to water issues. So too does the extreme weakness of the environmental sector in each of the Black Sea governments.¹⁵⁶ Significantly, even some MARPOL provisions and those of other agreements related to oil pollution management have not been implemented in the past several years. With the death of President Turgut Ozal of Turkey, there remained little political push for Black Sea environmental cooperation¹⁵⁷; however, support of environmental protection is now attractive in the region, both to please emerging green domestic constituencies and for extraregional motives, such as to gain admission to the EU and access to the GEF and other international environmental funds.

Conclusions

BSEP incorporates, at least at a rhetorical level, elements of a new understanding of transboundary interaction structured by international environmental law. It institutionalizes procedures that can be the core of productive linkages among Black Sea nations, the type of ongoing iteration essential to international cooperation. International law has made a preliminary modest contribution to improving the region's environmental quality. Sound environmental management of the Black Sea, however, remains an immense challenge. It was so under previous regimes, and there are many reasons to hold only limited expectations about major shifts under the embryonic international environmental law.

The BSEP has not had ongoing strong NGO involvement from the Parties themselves, and the dispute resolution process has not been developed. The regime has made EIA a centerpiece as a legal goal, but not in practice. Means of promoting compliance are nicely stated, but they have not been sufficiently implemented. Furthermore, although entry into the agreement was made easy in part through the flexibility built into instruments, there is little political commitment to even the limited steps necessary to make a difference on the ground. Additionally, the sometimes embryonic political and legal systems of the Parties have made it difficult to monitor actual commitment. Finally, funding has been miserably inadequate, and an effective secretariat has not yet evolved.

On the positive side, BSEP's goal-setting has generally benefitted from agreement on the appropriate science to aid in decisionmaking. There is at least a commitment to the generation of relevant scientific information through cooperative means, and a community of Black Sea scientists has at times been useful. Environmental impact assessment and NGO involvement are formally provided for, giving the regime some potential if other factors can be addressed. External interest in the region, both for environmental and sociopolitical reasons, also suggests that funding may become available.

Land: The Basel Convention

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal¹⁵⁸ is the major legal response of the international community to the problems caused by the annual worldwide production of 400 million tons of wastes that are toxic, poisonous, explosive, corrosive, flammable, ecotoxic, or infectious. Improper disposal results in soil contamination, underground water degradation from leachate and runoff, and destruction of habitat for fish and animals. It is also linked to increased cancer and birth defects.¹⁵⁹ Management problems result in large part from the extraordinary gap in the cost of disposal in developed and developing countries and the serious challenges involved in monitoring movement of dangerous wastes.

Prior to Basel, there were many scandalous stories of developed countries' attempts to get rid of hazardous waste at the expense of developing nations. The Koko case is one such episode. In 1988 a farm in Koko, a small town in Nigeria, was used as the dumping ground for 18,000 drums of waste, including polychlorinated biphenyls (PCBs), asbestos, and perhaps dioxin, from Italy. The waste arrived, as wastes had been arriving in other parts of Africa from France, the United States, and other developed nations, based on an agreement with an unscrupulous businessman. For about $ 100 per month he would store the materials on one of his commercial properties. The barrels were labeled as substances "relating to the building trade, and as residual and allied chemicals."

An official government response to the illegal dumping followed the publication of an article in a Lagos newspaper based on a tip by Nigerian students. The resulting cleanup led to the hospitalization of many workers, and one report linked the toxicity at the dumpsite to a cluster of premature births.¹⁶⁰

To communicate their outrage and to pressure the Italians to remove the waste, the Nigerians seized control of an Italian ship. The international media also placed pressure on Italy to respond. The Italians then removed the waste from Nigeria. Signifying international censure, one waste-laden ship was denied entry into the United States and a number of European ports. It took over a year for the Italians, facing protests at home over water contamination linked to disposal of the materials, to find resting grounds for all of the materials.

To prevent the human and environmental toll associated with the Koko case and others, Nigeria banned the importation of hazardous waste. Cameroon did the same. In both countries the penalty for violating this ban is death.¹⁶¹

Shortly before the Koko contamination, a shipload of hazardous waste from the United States was caught in a similar international scandal. The Khian Sea left port with 15,000 tons of incinerator ash containing low concentrations of heavy metals from Philadelphia. After being denied permission to dump its cargo in the Bahamas, the ship moved on to Haiti. The captain told Haitian authorities that [33 ELR 10402] the cargo was fertilizer ash and received permission to unload. One-fifth of the cargo had been put ashore before the Haitians learned what the material was. Compelled to leave, the ship tried various other ports over an 18-month period but was unable to gain admission. Somewhere along the way, the cargo was illegally dumped, and the ship arrived in Singapore unburdened.¹⁶²

Other cases involve developed nations as victims. In 1983, 41 barrels of topsoil contaminated with dioxin were found in a barn in northern France. They were products of a notorious chemical plant explosion that had occurred in Seveso, Italy, years earlier, materials transported without notice across European national boundaries.¹⁶³

The bizarre world of hazardous waste pollution results from a number of factors. A few sites are capable of proper disposal of hazardous waste, as political opposition holds up their construction. Additionally, the nature of the facilities needed makes sanctioned disposal very expensive. Most significant, the opportunities for immense profit are considerable, as the cost of disposal in industrialized nations can be 50 times that in developing nations.¹⁶⁴ Disposal cost in Africa in the eighties averaged between $ 2.50 and $ 50 per ton; in Organization for Economic Cooperation and Development (OECD) countries it ranged up to $ 2,000 per ton.¹⁶⁵ In 1988, Guinea-Bissau was offered $ 600 million, an amount five times that nation's gross national product, to accept private companies' toxic wastes from Europe and the United States.

International Environmental Law Response

In 1982, UNEP addressed the international transportation and disposal of toxic wastes after a group of environmental experts met in Montevideo, Paraguay. In 1985, it issued the Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Wastes.¹⁶⁶ Two years later, UNEP established a draft Convention on the Transboundary Shipment of Hazardous Waste and created an ad hoc working group composed of legal and technical specialists. The group analyzed several UNEP drafts and ultimately developed a final recommendation for the Basel Convention. It needed to address both the strong preference by developing countries for a ban on hazardous waste transfers from the north to the south and the OECD regulatory orientation favoring notification and consent. After two years of debate, 34 nations signed the Basel Convention on March 22, 1989. It entered into force May 5, 1992. By 2002, the number of Parties to the convention had reached 150.

The Basel Convention regulates the transport and disposal of hazardous and other wastes and seeks to make transport a matter of public record. "Hazardous" is defined by the originating, receiving, and transit countries. The goal is to protect human health and the environment from the dangers of such wastes. The principle underlying the convention is that wastes should be disposed of in the state where they were generated. Basel ultimately seeks to have Parties take appropriate measures to ensure that the generation of hazardous and other waste is reduced to a minimum. The convention restates the right of every state to ban the entry or disposal of foreign hazardous wastes in its territory,¹⁶⁷ either by reference to categories set out in Annex 1, unless they do not possess the characteristics listed in Annex 3, or if so classified by national legislation.¹⁶⁸ Exports to Antarctica are prohibited.¹⁶⁹

Many obligations also apply to "other wastes," listed in Annex 2, which encompasses household wastes or residue from the incineration of such wastes.¹⁷⁰ Radioactive wastes and wastes discharged from the normal operation of ships so long as they are regulated by other international instruments are not covered by Basel. Subsequent to a period of controversy and confusion, the fourth COP (COP-4),¹⁷¹ in 1998, clarified somewhat which wastes are covered by the convention so that recyclable materials including scrap paper and scrap metal are not wastes under Basel.

Other annexes now list waste (Annex 8 and Annex 9) by classification. Countries exercising their right to prohibit the import of hazardous wastes are to inform the other Parties and to provide information on any national legislation pertaining to the definition of hazardous wastes.¹⁷² Each Party must prohibit the export of such wastes to any state that has notified the Party of its prohibition.¹⁷³ Under Basel, "disposal" is broadly defined to include not only disposal but also recovery and recycling. Countries may enter regional agreements with Nonparty countries. Thus, for example, the United States, although not a Party to the treaty, can continue to trade in recyclable wastes with OECD countries.

Any waste transported or disposed of in contravention of the convention is considered an illegal traffic and can be made a criminal offense,¹⁷⁴ although the convention does not contain enforcement provisions and relies on Parties to take domestic measures. Movement of waste is permitted only if the generating state does not have the technical capacity or sites suitable for its disposal or if the importing state needs the waste as raw material for industries engaged in recycling or recovery.¹⁷⁵ Legal movements of waste must be tracked by a written document.

[33 ELR 10403]

A duty to reimport applies when a movement of hazardous waste has been consented to but "cannot be completed in accordance with the terms of the contract."¹⁷⁶ Article 11 allows transfer of wastes to Parties and Nonparties where movements are subject to another appropriate bilateral, multilateral, or regional agreement.¹⁷⁷

The COP reviews implementation of the agreement and promotes harmonization of waste management policies.¹⁷⁸ Dispute resolution takes place through any means the Parties choose. The convention allows the Parties to agree to submit their disputes to the ICJ or to arbitration as provided in Annex 6.¹⁷⁹

Article 15 provides for representation:

The United Nations, its specialized agencies, and States not party to the Convention, may be observers at meetings of the Conference of the Parties. Other national, international, governmental, or non-governmental organizations that are qualified in fields relating to hazardous wastes may be admitted as observers after informing the Secretariat, unless at least one-third of the parties present objects.¹⁸⁰

The convention specifies a preference that amendments be adopted by a consensus at a meeting of the COP, but if that should prove elusive, amendments may be adopted by a three-fourths majority of the Parties present and voting.¹⁸¹ A further exception is that adoption may also be achieved by two-thirds of the Parties to the protocol to be amended who are present and voting.¹⁸² After adoption, amendments must be ratified by a specified proportion (three-fourths or two-thirds, respectively) of the Parties who voted to subject themselves to its provisions.

Decision 3/1 is the most controversial amendment that emerged from the decision at COP-3 to ban hazardous waste exports for final disposal from OECD, the EC, and Liechtenstein (Annex 7 countries) to Nonannex 7 countries. That decision would also ban exports intended for recovery and recycling. To enter into force, the 1995 amendment must be ratified by the 62 Parties present at the time of its adoption. Initial movement was slow, with only 8 countries ratifying in the first three years. The Protocol on Liability and Compensation for Damage Resulting From Transboundary Movements of Hazardous Waste and Their Disposal was adopted by the Parties at COP-5 in Basel in December 1999. At that time, the ministers declared minimizing hazardous wastes a major focus for the decade 2000 to 2010.¹⁸³

Assessment: Physical Parameters

The actual effects of Basel on the movement of hazardous waste are difficult to ascertain. A main source of information is the UNEP Secretariat of the Basel Convention, which reports on data supplied by the Parties. The Secretariat cautions that "due to the differences in national definitions of hazardous wastes, variations in national reporting and the difficulties in comparing the quality and availability of accurate data, figures presented are not directly comparable."¹⁸⁴ For the reporting year 1998, the Secretariat noted that of the 74 Parties that provided information, 47 supplied data on the export of hazardous and other wastes, 20 reported that no export took place from their countries, and 23 Parties gave figures for import of wastes. Total wastes exported were 4,114,722 metric tons; the import figure was 3,816,232 metric tons. The export data indicate that of the wastes that moved worldwide, 10% went for disposal and 83% were recycled.¹⁸⁵

Assessment: The Contribution of International Environmental Law

Assessment of Basel has been mixed, although recent activities of the COP generally have been supported.

On the negative side, in a thorough and balanced assessment, the international law practitioner Jason Gudofsky concludes that although Basel is "the backbone of the international waste regime …. The Parties … have been gradually moving away from developing a unified system for controlling wastes and have instead bifurcated the system by creating one group of countries … that are entirely inaccessible to another group."¹⁸⁶ Further, insufficient attention has been paid to recycling and recovery. In general, the convention has been widely criticized for being "curiously ambivalent on the question of distinguishing hazardous wastes that were being exported for purposes of final disposal (e.g., landfill or injection) from those that were destined for reclamation, recycling or other methods of resource recovery."¹⁸⁷ Some Parties recognized potential benefits of recycling, others predicted "sham recycling."

[33 ELR 10404]

The convention fails to address the principle of liability both with regard to actors (generator, exporter, receiver) and with regard to type (fault-based or strict liability).¹⁸⁸ Parties supposedly are to cooperate to develop a protocol to establish rules and procedures for liability and for damages arising from the transboundary movement of hazardous wastes¹⁸⁹; however, Basel does not answer the question of who should pay for damages.¹⁹⁰ Critics question the wisdom of imposing fault on nation-states rather than on multinational corporations that violate the convention. A more effective regime would focus on building capacity to help all countries to manage and dispose of wastes safely rather than on the relatively rare sensational incidence of illegal transboundary transport.¹⁹¹ Furthermore, the Secretariat based in Geneva has limited supervisory functions and is under-funded,¹⁹² and the Trust Fund established in 1992 suffers from late and missing payments.

Moreover, aspects of the convention counter the overall objectives of the agreement. For example, the preamble includes vague language: "Convinced that hazardous wastes and other wastes should, as far as is compatible with environmentally sound and efficient management, be disposed of in the State where they are generated" and "taking into account also the limited capabilities of the developing countries to manage hazardous wastes and other wastes."¹⁹³ Similar phrases appear throughout the agreement: "take such steps as are necessary,"¹⁹⁴ "to the maximum consistent with the environmentally sound and efficient management of such wastes,"¹⁹⁵ "shall take appropriate legal, administrative and other measures,"¹⁹⁶ "in accordance with other criteria to be decided by the Parties."¹⁹⁷ The definition of hazardous waste itself is problematic since the convention allows nation-state variability in definition.

The convention's early versions were laden with such ambiguities and loopholes. The classification scheme for wastes is susceptible to divergent interpretation and engenders confusion,¹⁹⁸ although at COP-4 a list drawn up by a technical working group was accepted. There is insufficient involvement of NGOs¹⁹⁹ and no executive body for enforcement. Margurite Cusack, then a student of environmental law, has been wide-ranging in criticism: "The Basel Convention has legitimized the international toxic waste game and proclaimed industrial nations the winners …. Supporters … are not challenging the fundamental bipolar economic inequities that force Third World nations to accept shipment of toxic wastes."²⁰⁰

Furthermore, the ban under Decision 3/1 does not reflect a true consensus among developing countries. It unreasonably assumes that all non-OECD countries are and will remain incapable of processing recyclable wastes,²⁰¹ leading some countries and analysts to conclude that needy economies will be deprived of the benefits of receiving imported wastes that can be economically and safely recycled.²⁰² These countries are joined here by some environmentalists who bemoan the possible decline in recycling, including forcing the use of virgin materials. Business interests also conclude that revisions are necessary to make clear which are "benign wastes" that can be exported.²⁰³ Finally, a ban on trade in recyclable wastes may violate important trade principles as a nonenvironmentally based barrier.²⁰⁴

On the positive side: "It is generally accepted that the Basel Convention has helped to eliminate the most harmful of international hazardous waste transfers destined for final disposal," and environmentalists characterize the "Basel Ban" as the most significant environmental achievement since the Rio Earth Summit in 1992.²⁰⁵ There now is international consensus that rich countries should not send hazardous wastes to poorer countries for final disposal.

Other assessments of Basel praise the scope of its objectives. Because its scale includes a large number of countries, world economic forces and political pressures favor compliance. Also, the regime establishes a framework for a common definition for hazardous waste. Compliance with the tracking system for waste meeting the Basel definition is enforceable under domestic law of the Party in which the international transportation of hazardous waste was instigated. For example, individuals illegally exporting hazardous waste from the United States to another country are subject to U.S. criminal law. Under this system two men who knowingly exported hazardous waste from the United States to Pakistan without obtaining the required consent from the importing country were convicted by a U.S. federal jury for violations of the U.S. Resource Conservation and Recovery Act (RCRA).²⁰⁶ This enforcement system was employed and convictions achieved even though the United States is not a Party to the agreement.

Rummel-Bulska and Tolba, active leaders in the Basel negotiations, conclude: "We believe a reasonable goal was achieved: a flexible treaty that can be amended or adjusted in view of new facts or new information."²⁰⁷

[33 ELR 10405]

"Positive," of course, is a relative term. The Secretariat reported in October 1999 on the "growing commitment of the Parties to report on articles 13 and 16 of the Convention."²⁰⁸ The evidence was the 63 responses received by late 1999 to a 1997 questionnaire seeking information on, among other items, transboundary movements, measures for implementation of Basel, and sources of advice and expertise. The number of responses grew to 74 Parties for 1998; thus, just over one-half of the total number of Parties met the modest commitment of reporting.

Conclusions

By regulating the transport of hazardous waste and requiring prior informed consent from importing nations, the Basel Convention facilitates the collection of information on the location of dangerous material. Although it does not reflect a true consensus and it contains a number of ambiguities, Basel provides an increasingly standardized definition of hazardous waste and a clear mechanism for determining enforcement jurisdiction. Its Secretariat has performed its modest obligations relatively effectively. The convention itself is designed to allow ease of entry. More difficult issues are subject to later amendments by Parties who find its goals palatable. NGOs have not been uniformly pleased with Basel's progress, but they have de jure been given rights as observers. The Basel Convention does not yet, however, protect developing countries from the risk of becoming colonized by other people's hazardous waste. Nor does it substantially alter the economic incentives that make such a scenario attractive to unscrupulous individuals. It does not fully address the polluter-pays principle. Nor does it utilize the most advanced understandings of the law's compliance-promoting potential.

Despite its initial enthusiasm and its early signing of the Basel Convention, as of December 2001, the United States has not yet enacted domestic implementing legislation. Here as in other areas of international law, the question arises whether a treaty bypassed by the world's leading power can be effective. In the case of Basel, considerations are unique and countervailing. Because the United States is responsible for such a large proportion of the world's hazardous waste, e.g., in 1995 it produced 279 million tons of hazardous waste and exported 226,000 tons of it,²⁰⁹ its failure to ratify the Basel Convention can undermine the treaty's potential to operate effectively. In any event, refusal to participate weakens the ability of the United States to influence international environmental law on waste transport.

The absence of the United States may also reduce the amount of hazardous waste that can be legally transported across national boundaries. Recall that Parties to the Basel Convention are prohibited from transporting hazardous waste to or from Nonparties unless a separate agreement with the Nonparty has been made. Such agreements must be compatible with the Basel agreement if they predate Basel, or they must require procedures that are more stringent than Basel if they postdate Basel. Parties are required to notify the Basel Secretariat of the existence of agreements between Parties and Nonparties. Where agreements or arrangements have not been made, the Nonparty status of the United States prevents the possibility of legal transport of hazardous waste between the United States and other nations. The United States has entered into a multilateral agreement among OECD countries regarding recyclable wastes and bilateral agreements with Canada, Costa Rica, Malaysia, and Mexico.²¹⁰

Incentives for U.S. ratification are limited. Only 1% of U.S. hazardous waste is exported, and 95% of that 1% goes to Canada and Mexico. Ratification may make the United States more susceptible to private legal actions both by domestic Parties and foreign plaintiffs under the Alien Tort Statute.²¹¹ Changes in domestic law needed prior to ratification (including in RCRA) are complex and cumbersome.

General Environmental Protection and Enforcement: The North American Agreement on Environmental Cooperation (NAAEC)

Pressure groups, including environmental NGOs, linked the international trade of goods and services to environmental degradation, if not disaster, during negotiations for NAFTA²¹² among Canada, Mexico, and the United States. In response to these concerns, the NAAEC, or the Environmental Side Agreement,²¹³ was entered at the same time as NAFTA.

NAFTA and the Environmental Side Agreement were developed in the face of growing concern about the effects on the environment of liberalized international trade. One fear was that environmentally insensitive growth would become unstoppable, especially though not exclusively at national borders. A second worry was that green firms would be less competitive than nonconcerned businesses, thereby weakening incentives for compliance. Also, national laws and policies would be compromised by trade liberalization, a fear exacerbated by the 1991 ruling by the General Agreement on Tariffs and Trade (GATT) dispute-resolution panel on the tuna and dolphin case.²¹⁴ The panel declared that the U.S. Marine Mammal Protection Act,²¹⁵ intended to protect dolphins from harm from certain kinds of nets used in tuna fishing, constituted an unacceptable barrier against Mexican trade. In addition, trade liberalization raised the possibility that polluting industries would flee jurisdictions with high environmental standards for lax jurisdictions, resulting in a net increase in pollution from a global perspective and [33 ELR 10406] greater unemployment in the community intent on protecting its air, water, and soil from contamination.

Despite controversy, negotiations for NAFTA were completed in August 1992. Signed four months later, NAFTA created the world's largest free trade zone, containing 370 million people and more than $ 6.5 trillion in goods and services each year.²¹⁶ Reflecting political pressures, NAFTA was the first trade agreement to address the environment directly. It contains provisions governing environment and investment,²¹⁷ food and safety standards,²¹⁸ and other environmental standards.²¹⁹ It also lists three international environmental agreements that take precedence over NAFTA particularly in regard to dispute resolution procedures.²²⁰ These are the Montreal Protocol, the Convention on International Trade in Endangered Species, and the Basel Convention on Hazardous Wastes.

Many influential environmental groups felt that NAFTA had not adequately addressed environmental issues.²²¹ In addition, the processes set up under NAFTA were seen as insufficiently transparent and representative and, therefore, undemocratic.²²² Some environmentalists began shifting focus to negotiations for the side agreement, seeing it as a vehicle to remedy some of NAFTA's omissions.

International Environmental Law Response

William J. Clinton, as the U.S. president-elect, had promised to negotiate and sign the environmental (and a labor) side agreement before the promulgation of NAFTA.²²³ With divided environmental group support, Canada, Mexico, and the United States signed the NAFTA Environmental Side Agreement on September 13, 1993. Subsequently, NAFTA and the side agreements were ratified and promulgated by the legislatures of the Parties.

The objectives of the environmental agreement are general and broad and are carried out through several distinct programs. The goals are to foster protection and improvement of the environment, to promote sustainable development based on cooperation and mutually supportive environmental and economic policies, and to increase cooperation to better conserve, protect, and enhance the environment. To further those objectives, the Environmental Side Agreement establishes the Commission for Environmental Cooperation (CEC), composed of a council, the Joint Public Advisory Committee (JPAC), and the Secretariat. The CEC Council consists of one cabinet-level (or equivalent) representative from each Party. The JPAC is responsible for facilitating public participation and communication regarding CEC activities. It consists of 15 presidential appointees, 5 from each Party. The Secretariat is the administrative arm of the CEC. It is responsible for implementing the agreement, including undertaking studies and assessments and overseeing the consideration of submissions (as specified in Articles 14 and 15) asserting that a Party "is failing to effectively enforce its environmental law." Such submissions are a form of complaint made by private citizens and NGOs. The most severe penalty under this NAFTA procedure, if such an assertion is substantiated, is release of a factual record to the public. "Factual record" is not defined in the agreement, but in practice it has contained a summary of the submission, a summary of the challenged Party's response, a summary "of all other relevant factual information," and annexes that give a chronology of the case and maps of the area involved. Part 5 of the side agreement provides for a Party to allege that there has been a persistent pattern of failure by another Party to enforce its environmental law effectively. Under it, a Party could be fined and ultimately denied NAFTA free trade privileges up to the amount of the unpaid fine.

Assessment: Physical Parameters

"Many environmental indicators in the North American region are worsening, and these alarming trends are particularly evident at the U.S.-Mexico border, an area that figured prominently in the political debate leading to NAFTA's adoption,"²²⁴ summarized a leading student of NAFTA institutions. Stephen Mumme noted, however, that the chain of causation is not easily tied to NAFTA's Environmental Side Agreement. The situation may be due more to economic and social trends already at work in 1994. NAFTA, he notes, strengthened governmental commitments to environmental protection within the North American region, "commitments that otherwise might not have been attainable."²²⁵

An analysis of physical effects of an international instrument as general and as complex as the side agreement must rely on approximations and models and relationships that can be described in theory but not empirically by means of convincing statistics. Data can be compiled, but they say very little about the influence of an agreement that is not specific to a particular place or physical resource. Some information, however, is available. The CEC did conclude that pollution releases from industrial sites in Canada and the United States increased 1.2% from 1995 to 1997, reversing progress seen in earlier years. Direct releases decreased 9%, but transfers of toxic pollutants to offsite facilities for treatment rose 27%.²²⁶ Such data, however, are virtually irrelevant to the analysis of the side agreement's effects.

The CEC's own attempt to address the impact of NAFTA on environmental parameters resulted in a highly intricate [33 ELR 10407] description of possible relationships in an early report and a set of evaluative papers in 2000. These papers addressed fisheries, the forestry sector (including the export of finished wood products), North American air pollution, transboundary shipment of hazardous wastes, and wastewater treatment. Again, limited access to data and the complexities of the links made for few convincing conclusions. For example, regarding fisheries, one paper concluded that NAFTA "could have either a positive, negative, or negligible environmental impact."²²⁷ The paper on forests was somewhat more conclusive, reasoning that tariff elimination under NAFTA itself would have a degrading effect on Mexican forests and that the industry likely will oppose national forestry regulations in order to stay competitive. Some commentators concluded that the NAAEC framework was not sufficiently developed to fulfill the side agreement's mandate to protect the North American environment.

The side agreement submission process is likely to have little direct impact on environmental quality. Beatriz Bugeda, a Mexican environmental lawyer and an early student of NAFTA institutions, cites as an example the Cozumel case, which involved challenges under article 14 to the construction of a 1,800-foot pier for luxury cruise liners near a coral outcropping off the Yucatan Peninsula.²²⁸ Environmental groups charged that the project was initiated without a declaration of environmental impacts and was located within the limits of a protected coastal zone. The release of the factual record "had very little impact on the environmental community, and none whatsoever on the tourist project in Cozumel."²²⁹

Assessment: Contribution to International Environmental Law

Assessment of the NAAEC has been mixed, with an initial criticism of its weaknesses evolving into a conclusion that if looked at broadly, its effects on environmental cooperation and ultimately on the North American environment may be positive.

There are several noted weaknesses of the agreement. Its definitions of "environmental law" are problematic; most important, it excludes laws regulating the harvesting of natural resources. The agreement is unclear as to whether strip mining, soil conservation, energy extraction, coastal fishing, and sustainable timber harvesting are included or excluded.²³⁰ In general, submissions on timber harvesting have been ruled to be outside CEC purview, but submissions regarding coastal fishing have not been rejected on such grounds.²³¹ In 1999, a submission against the United States was filed, linking timber harvesting to the death of migratory bird species, and a factual record was ordered.²³²

The term "failure to effectively enforce" has created implementation challenges, and the submission process has generated several citizen initiatives but relatively little action by governments.²³³ Applying definitions internationally also raises challenges. A government is the expert on its own law.²³⁴ A dispute system based on second-guessing a country's conclusions involves complex matters of judgment. A reasonable exercise of prosecutorial discretion and deference to bona fide resource allocation decisions are allowed under the agreement; however, this deference makes it more difficult to demonstrate noncompliance.²³⁵ In practice, the submission process has provoked Canadian, Mexican, and U.S. government opposition in which they deny its applicability to the issues involved.

The general nature of certain duties under the agreement also makes judging implementation difficult. An example is the obligation to "strengthen cooperation on the development and continuing improvement of environmental laws and regulations."²³⁶ Other duties are discretionary: the agreement lists 18 issues for which the council may consider and develop recommendations.²³⁷ Furthermore, the principles [33 ELR 10408] laid out in the preamble to the agreement conflict; they "reflect the intrinsic difficulty of integrating environmental concerns into international trade law."²³⁸ Vague language such as that indicating that the council "may consider and develop recommendations" also is a barrier to tracking successful implementation.²³⁹

Because of differences in domestic environmental law in the three countries, determinations of harmonization and of the failure to enforce are problematic matters for international organizations. What is "downward movement" in environmental protection, which the agreement is intended to counter, when the law requires environmental assessment or lays out procedural rules for participation?

Support for development of NAFTA side institutions has been limited. Agency positions within the United States about the value of, and means of implementing, the agreement are ambivalent and mixed. There is strong interest in protecting domestic missions, including the U.S. State Department, the U.S. Trade Representative, and the U.S. Environmental Protection Agency. The political side, in efforts both to shield ministers from demanding, overly sensitive or overly powerful positions and to protect against unacceptably independent acts of the CEC Council, has constrained the ministers. Many government officials in fact are not bothered by slow institutional development. Some American environmental and labor groups saw in NAFTA "the first hemispheric link between trade and social policy," but governments, Mexican officials in particular, felt that an American social agenda was forced on them. Greater integration such as in the EC is not a goal.²⁴⁰

Experts criticize the absence of independence of the Secretariat,²⁴¹ failure to make clear whether the council or Secretariat has a legal personality such as exists for other international organizations, and failure of the organizations to act independently of governments. The provision for citizen submissions diminishes the control that the CEC has over the types of issues that it must address, exposing it to more criticism than if regulation were limited to governments.²⁴² Finally, the CEC has no explicit role in the important work of the NAFTA committees on sanitary and phytosanitary measures and standards-related measures.

The enforcement strategies incorporated in the agreement are soft teeth, but opinion differs on whether such soft teeth are necessary for the agreement to be successful. A representative of the World Wildlife Fund concluded that "NAFTA's so-called teeth are small, soft, and way in the back of the mouth," and that is how it should be.²⁴³ Christopher Stone, however, finds the sanctioning mechanism possibly "worse than weak; it may actually provide perverse incentives. A Party that toughens its laws increases the risk of being judged a persistent non-enforcer."²⁴⁴ The enforcement approach is "more like a tunnel hole … than a loop hole."²⁴⁵ Further, the NAFTA regime offers a strong defense for enforcement laxity. Mexico can argue that its failure to enforce the law results from a commitment of its limited resources to more pressing problems. Imposing trade sanctions against a country that failed to enforce its environmental laws is a protracted and cumbersome process²⁴⁶; it takes, at a minimum, 755 days from the initiation of a complaint. Even then the agreement lacks any real commitment to action beyond consultation. Nonetheless and somewhat ironically, both private environmentalists and the JPAC expressed grave disapproval to the CEC of "secret negotiations" in 1999 over possible change in the guidelines for submissions under Articles 14 and 15 on enforcement matters. Although flawed, the guidelines could only be made weaker by Party intervention without involvement by the NGO communities.²⁴⁷

Facing the strong and nontransparent dispute resolution processes under NAFTA proper, the side agreement does not achieve a balance between promoting trade and protecting the environment. The NAFTA processes allow companies to challenge imposition of environmental protections that they interpret as disguised barriers to trade. If such barriers are found by an appointed panel, the government enforcing those rules faces significant costs, payments that would not be likely under domestic laws on infringement of property rights.²⁴⁸

By other, positive accounts, the side agreement is an initiative that meets critical criteria for effective international environmental law.

The submission process does focus international attention on the environmental records of the Parties. Although specific CEC conclusions may not dramatically affect the outcome of any one case, the attention that Canada, Mexico, and the United States receive regarding enforcement positively influences their decisions regarding environmental protection. Submissions can also foster cooperation among challenging entities. Jointly, Canadian, Mexican, and U.S. NGOs have brought several of the CEC complaints. What's more, although individual challenges may lack merit or be considered trivial (one asserted that the construction of a paved, multipurpose bicycle path through the Jamaica Bay Wildlife Refuge, in Queens, New York, will "destroy critical [33 ELR 10409] habitat for endangered and threatened species and … result in the taking of migratory birds"), the dozens of actions add up to a report card and force governments to review environmental policy implementation. If the Parties make even a modest commitment to continuing implementation, the agreement "will directly and durably undermine the idea that environmental enforcement is a reserved domestic jurisdiction solely with the exclusive sovereignty of the parties …. That is not very far from saying that environmental policy is no longer a strictly sovereign matter within the NAFTA area."²⁴⁹

Cooperative activity that the agreement has engendered may be more significant than the submission process. The side agreement has potential to make a contribution to environmental protection in North America by focusing on matters other than immediate physical change or number of cases filed. Its organizations facilitate environmental problem-solving by state and local governments and NGOs, providing them with modest amounts of money, expertise, and organizational capacity. Its institutions allow for a degree of influence for the previously unheard, such as Mexican farmers.²⁵⁰ The CEC has promoted several joint efforts among enforcement officials. For example, it has helped enforcers control illegal big game hunting and game farming, understand better the legal framework for hunting in North America, and find ways to counter import and export fraud and smuggling. The CEC has brought together promoters of organic agriculture to promote sustainable crops, such as shade-grown coffee. The agreement also helps development of epistemic communities that have worked on plans for pervasive environmental contaminants and studies of means to protect ecosystems.

Conclusions

The Environmental Side Agreement, one part of the institutional arrangement that evolved from the NAFTA considerations, has achieved some important goals and retains a promise for achieving greater environmental protection. Several factors help explain its relative success. It has benefitted from the Parties' agreement on appropriate science to aid in decisionmaking and the generation of scientific information through cooperative efforts. It has allowed for considerable NGO involvement. It has taken EIA seriously, both in its constituent actions, including review of a Party's activities when challenged under submissions, and also as a fundamental element of the regime's architecture: the environmental impacts of NAFTA, difficult to conceptualize let alone measure, are nonetheless a fundamental spotlight of the CEC's concerns.

To the extent that the agreement has been disappointing, certain factors have been at play. NGO involvement in the public advisory committee has been inefficient at times. The means of promoting compliance that NGOs emphasize are not innovative. Rather, they rely on a cumbersome adversary process with almost meaningless sanctions, themselves highly improbable in most cases. Furthermore, the goals of the agreement, while clear, are imprecise. Although entry into the agreement was not a major obstacle to its creation, the provincial legal system of Canada has made that country's participation less than smooth. Finally, while funding has been adequate to help assemble a relatively effective Secretariat, it is insufficient for achieving the comprehensive goals of the agreement.

Global Climate Change

Sources of greenhouse gases contributing to global climate change are so numerous that they are virtually uncountable. The effects of global climate change are just beginning to be felt. The causal links among emissions, climate destabilization, and environmental damage have only recently become matters of scientific consensus. Impacts, which include some benefits, are relevant to most peoples of and places in the world. Institutions at several levels of government and many NGOs have now recognized climate change as an international problem.

Correlates of climate change, including CO₂ and other greenhouse gases (CFCs, hydrofluorocarbons, methane, nitrous oxide, polyfluorocarbons, and sulfur hexafluoride), as well as black carbon soot, have increased substantially in the last 100 years. With these higher concentrations have come reductions in the flow of infrared energy to space. Thus, the earth receives somewhat more energy than it radiates. In the long run, the earth must shed energy into space at the same rate that it absorbs it from the sun.

Climate change can be driven by an imbalance between the energy the earth receives from the sun, largely as visible light, and the energy it radiates back to space as invisible infrared light. The "greenhouse effect" is caused by the presence in the air of gases and clouds that absorb some of the infrared light flowing upward and radiate it back downward. The warming influence of this re-radiated energy is opposed by substances at the surface and in the atmosphere that reflect sunlight directly back into space. These include snow and desert sand, as well as clouds and aerosols.²⁵¹

Estimating the effects of greenhouse gases on the earth's weather and climate systems is complex, and even now some of the assessment remains controversial. Nonetheless, advances in the science and technology underlying climate models have facilitated consensus building within the scientific community, although more research is needed before regional climatic surprises can be more confidently predicted.²⁵² There is still some debate over the extent of change in global temperature that is man-made, but there is no serious doubt that "the balance of evidence suggests a discernible human influence on global climate."²⁵³ Knowledge about the dynamics of climate change is converging, although questions about what interventions will be successful over what periods of time generate serious disagreements across scientific disciplines, including in the social sciences, and across parties.

In 1988, UNEP and the WMO created the Intergovernmental Panel on Climate Change (IPCC) to assess available [33 ELR 10410] information on global climate change.²⁵⁴ In its Second Assessment Report, released in 1995, the panel concluded that the global average surface temperature had increased 0.3 to 0.6 degrees Celsius and sea level had risen 10 to 25 centimeters (cm) in the 20th century.²⁵⁵ The IPCC then predicted that global average temperatures would increase by about 1 to 3.5 degrees Celsius and sea level would rise by 15 to 95 cm in the next 100 years. For the next century (from 1990 to 2100) the range of predictions based on recent assessments was: temperature increases of 1.9 to 2.9 degrees centigrade and sea level rises of 46 to 58 cm. These changes are predicted to increase the number of heat-induced deaths, the spread of disease, threats to food security, water resource problems, and a decline in the viability of important natural ecosystems.²⁵⁶ By 2000, in the Third Assessment, the report had changed its prediction to an increase of 1.5 to 6 degrees centigrade by 2100, almost twice the previous IPCC predictions.²⁵⁷

The effects of global climate change may actually be aggravated by progress in the control of other emissions. The Global Environment Outlook reported that if emissions of gases associated with acid rain were reduced while those of greenhouse gases were not, "decreasing [SO₂] particle concentrations would 'unmask' the warming caused by greenhouse gases, leading to even greater increases in global temperature affecting both industrial and developing nations."²⁵⁸ Levels of greenhouse gases in the atmosphere have increased substantially since about A.D. 1750: CO₂ from 280 to 360 parts per million by volume, methane from 700 to 1,720 parts per billion (ppb) by volume, and nitrous oxide from 275 to about 310 ppb by volume.²⁵⁹

Developed countries have played the leading role in emissions linked to climate change. A major cause has been the burning of fossil fuels. In 1990, the United States was responsible for roughly one-quarter (23%) of global carbon emissions each year. The EU contributed another 13%. The total contribution of industrialized nations, which account for one-fifth of the world's population, was about two-thirds of the total global emissions of CO₂.²⁶⁰

U.S. emissions of CO₂ per unit of gross national product are greater than all other nations, except China if gross national product is measured in purchasing power parity exchange rates.²⁶¹ Many developing countries have rain forests that provide important carbon absorption functions in the global climate system (sometimes called sinks). Nonetheless, developing nations are expected to release a growing proportion of global greenhouse gas emissions in the coming decades. China alone will emit more of these gases by the end of the century than the whole world does today.

The International Environmental Law Response

Over the last few decades scientific and political debate on climate change has influenced and been catalyzed by milestones in the creation of an international legal response. The perception of an emerging scientific consensus on the existence and severity of the problem, the possibility that multinational corporations may profit through the manufacture and sale of innovative clean technology, and the political willingness of some historically egregious emitters of greenhouse gases, e.g., developed countries, to commit to legally binding reductions of emissions have influenced the development of the international response.

In 1979 the concern among scientists regarding global climate change prompted the WMO and other international organizations to sponsor the First World Climate Conference, held in Geneva. Its focus was scientific modeling of the potential effects of global climate change on natural resources (such as agriculture, fishing, forestry), hydrology, and urban life. Conference participants endorsed the "Declaration of the World Climate Conference."²⁶² The declaration stressed the role of CO₂ in global warming and identified the leading causes of its release into the atmosphere, e.g., the use of fossil fuels and deforestation. Furthermore, it asked that governments around the world "prevent potential man-made changes in climate that might be adverse to the well-being of humanity." Conference participants also supported the WMO suggestion to establish a new program for climate research. This suggestion led to the creation of the World Climate Program.

In 1987, the World Commission on Environment and Development, formed by the U.N. General Assembly, issued Our Common Future (the Brundtland Commission Report).²⁶³ In its wake the IPCC built on the World Climate Program foundation, endorsing sustainable development. Popular concern over global climate change grew from other events, including the success of the Montreal Protocol, the North American heat wave and drought in 1988, press coverage of the concept (Time magazine named earth the "Planet of the Year"), a number of important consensus-building international conferences, the release of the IPCC's First Assessment Report in 1990,²⁶⁴ and, in 1998, the devastation [33 ELR 10411] caused by Hurricane Mitch in the Caribbean and Central America.²⁶⁵

The Second World Climate Conference, held in November 1990 in Geneva, attracted 137 nations and the EC. It marked the arrival of global climate change on the world-wide political agenda. Participating nations were unable to endorse specific targets for reducing emissions, but they did agree on a number of concepts, including the view that global climate change is a "common concern of humankind" and that equity and the principle of "common but differentiated responsibilities" should figure prominently in future negotiations. They also endorsed the precautionary principle, an evolving notion of preventive policy, and stressed the importance of sustainable development. The "Declaration of the Second World Climate Conference" recorded these and other areas of agreement.

In December 1990, the U.N. General Assembly created the Intergovernmental Negotiating Committee (INC) for the Framework Convention on Climate Change (FCCC). One hundred and fifty nations signed up. The INC was charged with producing a draft consensus document in time for the 1992 Rio Conference. They had less than a year and a half to make their deadline.

Through the five negotiating sessions of the INC, several innovative policy mechanisms were proposed. A carbon tax imposed by each Member state, emissions trading, and joint implementation²⁶⁶ were among the most important and popular, although controversial, ideas. Fairness questions arose over each of these proposals. The negotiations proved too contentious to enable the INC to include firm limits on emissions by the time of the Rio Conference. Most prominently, the United States refused to agree to stabilize emissions at 1990 levels by the year 2000.²⁶⁷ Conflicting interpretations of the science underlying global climate change were used to justify changes in the policy stances of the United States and some nation-states.

At Rio the great majority of participating Parties adopted the framework. Delegates from 154 nations signed the convention, characterized by a nonbinding aim to reduce greenhouse gases. But the initiative was weakened by the U.S. position on an abatement target. The framework did include the idea that global climate change was a "common concern of humankind" and that equity, "common but differentiated responsibilities,"²⁶⁸ sustainable development, and the precautionary principle should characterize any international response.²⁶⁹

Common but differentiated responsibilities were assigned according to the leadership principle:

Each of these Parties shall adopt national policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse gas sinks and reservoirs. These policies and measures will demonstrate that developed countries are taking the lead in modifying longer-term trends in anthropogenic emissions consistent with the objective of the Convention.²⁷⁰

As international leaders, developed countries (also referred to as Annex 1 Parties)²⁷¹ were expected to provide the "agreed full incremental cost" of developing countries' treaty compliance, including money for the transfer of technology.²⁷² Furthermore, the signatory nations agreed that Annex 1 Parties would adopt policies and measures to reduce greenhouse gases "with the aim of returning individually or jointly to their 1990 levels of these anthropogenic emissions of [CO₂] and other greenhouse gases not controlled by the Montreal Protocol."²⁷³ For developing countries, the FCCC encourages voluntary commitments to reduce greenhouse gas emissions.²⁷⁴

In addition to the leadership principle, the FCCC holds that response measures "should be cost-effective so as to ensure global benefits at the lowest possible cost."²⁷⁵ The framework also recognizes that greenhouse gas emissions can be "addressed" through "the conservation and enhancement, as appropriate, of sinks" (Article 4.1.d) B.²⁷⁶

Following the entry into force of the FCCC in May 1994, the COP process organized implementation and negotiation efforts.²⁷⁷ COP-1 was held in Berlin in March 1995. Participants [33 ELR 10412] agreed to establish a negotiating process to strengthen the FCCC commitments to reduce global greenhouse gas emissions for the period following 2000. The document that authorized and defined the purpose of that negotiating process was called the Berlin Mandate. It elaborated policies and measures "to set quantified limitation and reduction objectives within specified time frames such as 2005, 2010, and 2020." It also required that the negotiations be based on an equitable distribution of burdens and benefits, acknowledge the principle of common but differentiated responsibilities, and refrain from adding any new commitments for Parties not included in Annex 1. Newly industrializing nations (Brazil, China, and India are among the most significant from the environmental perspective) would continue to be exempt from future, legally binding agreements to reduce emissions.

It was also in 1995 that the IPCC published the Second Assessment Report (SAR).²⁷⁸ Based on peer review by 2,000 experts, it concluded that the balance of evidence suggests that humans do in fact influence the global climate.

At COP-2 in Geneva, in July 1996, the EU, as well as a number of its Member states, was a strong advocate for the Second Assessment Report and argued that it should be used as the basis for the work of the Berlin Mandate. A number of oil-producing countries (Kuwait, Nigeria, the Russian Federation, and Syria, among others) opposed using the SAR as the basis for policy.

Despite conflicting views, representatives did agree to hold COP-3 in Kyoto, Japan, and to "take note" of a COP-2 summary statement, which they called the Geneva Declaration. Among other things, it encouraged countries to

recognize and endorse the SAR, … noting in particular its findings that the balance of evidence suggests a discernible human influence on climate and that significant reductions in net GHG [greenhouse gas] emissions are possible and feasible; believe that the findings of the SAR indicate dangerous interference with the climate system; … recognize the need for continuing IPCC studies to minimize uncertainty; and reaffirm existing commitments to the FCCC, especially of Annex I Parties.²⁷⁹

In December 1997, about 10,000 delegates, observers, and media representatives gathered in Kyoto, Japan. The negotiation text prepared under the Berlin Mandate served as the basis for a COP-3 agreement known as the Kyoto Protocol to the Framework Convention on Climate Change. In the 27 articles of the Kyoto Protocol, Annex 1 countries agreed to reduce greenhouse gas emissions by "assigned amounts" specific to each country:

The parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic [CO₂] equivalent emissions … do not exceed their assigned amounts … with a view to reducing their overall emissions of such gases by at least 5% below 1990 levels in the commitment period 2008 to 2012.²⁸⁰

Annex 1 countries are most industrialized and some central European nations. Annex 2 countries do not include the latter. Their "reduction commitments" range from 92% (change from the base year) to 108% (for Australia). No developing country that signed the FCCC, including China, committed to any assigned amount or quantitative limit on greenhouse gas emissions. The role of developing countries in reducing greenhouse gases is not specified in the Kyoto Protocol other than as potential partners in efforts by Annex 1 countries to meet their commitments (Articles 4 and 6)²⁸¹ and as recipients of technology transfer.²⁸² Developing countries are mentioned as potentially subject to undesirable side effects that may result from reduction of greenhouse gases. To guard against such outcomes, Article 2.3 of the Kyoto Protocol requires Annex 1 countries to "strive to implement policies and measures under this Article in such a way as to minimize adverse effects, including the adverse effects of climate change, effects on international trade, and social, environmental and economic impacts on other Parties, especially developing country Parties."²⁸³ Similarly, Article 3.14 of the protocol requires Annex 1 countries to "strive to implement the commitments mentioned in Paragraph 1 above in such a way as to minimize adverse social, environmental and economic impacts on developing country Parties."²⁸⁴

After a 1998 meeting in Argentina, COP-5 took place in Bonn, Germany, in 1999. It addressed details of emissions trading, the clean development mechanism (CDM), joint implementation (the so-called flexibility mechanisms), accounting of greenhouse gas emissions, and development of a "credible" compliance system.²⁸⁵ Emissions trading occurs among industrialized nations. Joint implementation offers emission reduction units for financing projects in other developed countries (such as power plant conversions). The CDM provides credit (certified emissions reductions (CERs)) for financing emission-reducing or emissions-avoiding projects in developing countries.

In November 2000, at COP-6, Parties met in The Hague to move the general language of the Kyoto Protocol to specifics on how the goals of the regime would be met. On the one hand, and as characterized by much of the news media, the meetings were a failure.²⁸⁶ The percentage of a nation's goals that could be met by use of the flexibility mechanisms, the extent to which sinks could be counted against emissions limitations, and the nature and application of compliance-promoting mechanisms divided the participants. Blame was [33 ELR 10413] assigned variously to the refusal of the Americans to recognize the need for at least some changes in their profligate use of energy, to the inflexibility of the EU or the failure of their lead nation (France) to comprehend details of the highly technical proposals, to the extreme proposals made by the Saudis for compensating oil-exporting nations that would be economically hurt by decreased reliance on fossil fuels, or to the inertia of less developed nations that continued to insist that they need do little to solve the problem since they do not cause it.

With the inauguration of George W. Bush as president, the United States decided that it was not interested in the Kyoto Protocol because that instrument was "fatally flawed." Nonetheless, when 180 nations met again in Bonn in July 2001, to complete COP-6, 178 of them reached a compromise agreement. Attributed in part to the persistent efforts of the chairman of the conference and the willingness of Europe to make concessions to Japan, the conference agreed to several points. Emission credits will be earned for carbon sinks and can include revegetation and management of grazing lands, forests, and croplands, but sinks can account for only a fraction of a nation's target. Developed Parties are to refrain from using nuclear facilities in their CDMs. Rights to emit will be tradable; those nations that do not meet their own targets can purchase rights from those that have exceeded theirs. The flexibility mechanisms all are to be supplemental to domestic actions. The aim of the program to address noncompliance with emission limitations will be to insure "environmental integrity," not "reparation of damage to the environment," a phrase that was deleted from the regime's language. Enforcement was limited to the notion of increasing emission reductions in a later phase for every ton emitted above a Party's target. Three new funds were created that will assist developing countries: an adaptation fund, one for assisting with implementing climate-related measures, and a third for the least developed countries. In November 2001, COP-7 met in Marrakech, where steps were taken (based on a compromise between Australia, Canada, Japan, and Russia on one side and the EU on the other) to develop a compliance-promoting mechanism and to determine credit mechanisms under the flexibility programs.

The climate change regime's fundamental characteristics are summarized in Table 1.

Table 1. Climate Change Regime Summary

Its ultimate objective is the "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. This level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner."

The regime is guided by several principles. The precautionary principle holds that lack of full scientific certainty should not be used as a rationale to postpone action when there is a threat of serious or irreversible damage. The principle of common but differentiated responsibilities looks to the developed countries to take the lead in combating climate change. The principle of sustainability focuses on social and economic development and recognizes the need for increased energy consumption in developing countries. Climate change is seen as a common concern of humankind, but the leadership principle looks to the developed countries as the main source of the problem and of the resources to achieve solutions. The special needs of developing countries are recognized. The extent to which developing-country Parties implement their commitments will depend on financial and technical assistance from the developed countries.

Both developed and developing countries will adopt national programs for mitigating climate change and will develop strategies for adapting to its impacts. They will promote technology transfer and the sustainable management, conservation, and enhancement of greenhouse gas sinks and reservoirs. They will take climate change into account in their relevant social, economic, and environmental policies; cooperate in scientific, technical, and educational matters; and promote education, public awareness, and the exchange of information related to climate change.

Annex 1 countries commit to adopting policies and measures aimed at returning their greenhouse gas emissions to specified amounts by specified dates between 2008 and 2012. Several states may together adopt a joint emissions target.

Annex 2 countries will fund the full cost incurred by developing countries for submitting national communications. These cannot be redirected from developmental aid funds. Annex 2 countries will also help finance other projects, and they will promote and finance the transfer of, or access to, environmentally sound technologies, particularly for developing-country Parties. Other "flexibility mechanisms" for meeting emissions goals are provided for, as are programs for partially reaching goals through best forestry management practices.

The supreme body of the climate change regime is the Conference of the Parties (COP). The COP comprises all the states that have ratified the convention. It promotes and reviews implementation of the convention. It will periodically review existing commitments in light of the convention's objectives, new scientific findings, and the effectiveness of national climate change programs. The COP can adopt new commitments through amendments and protocols.

A secretariat makes arrangements for sessions of the convention bodies, assists Parties in implementing their commitments, provides support to ongoing negotiations, and works with the secretariats of other international bodies, notably the Global Environment Facility (GEF) and the Intergovernmental Panel on Climate Change (IPCC).

Financial mechanisms provide funds on a grant or a concessional basis.

[33 ELR 10414]

Assessment: Physical Parameters

Most observers conclude that full implementation of the Kyoto Protocol is insufficient to control the negative effects of change. More significant, however, are the data in Table 2, demonstrating that critically important nations are not meeting even their 2008 to 2012 goals under the modest targets, sometimes missing by giant margins. Furthermore, unless the term is to be stripped of any common meaning, the goal of "demonstrable progress" by 2005 is not met. Beyond these official data are numerous scientific observations and anecdotes related to the physical assessment: the disappearance of glaciers, blooming trees and flowers during autumns in the temperate zone, the lengthening of the growing season in some regions, the early arrival of migratory birds.

*3*Table 2. Performance of Kyoto Protocol Participants

*3*Selective Illustrative Data

(NEW COLUMN)Total emissions in tons of

(NEW COLUMN)CO₂ or CO₂ equivalent

Region(NEW COLUMN)in 1990 and in 1998(NEW COLUMN)Percentage

(NEW COLUMN)(NEW COLUMN)change

Asia(NEW COLUMN)from 1,631 million tons

(NEW COLUMN)to 2,466 million tons(NEW COLUMN)+50.0%

Latin America(NEW COLUMN)from 922 million tons

(NEW COLUMN)to 1,222 million tons(NEW COLUMN)+32.5%

Australia(NEW COLUMN)from 423,237 Gg

(NEW COLUMN)to 484,699 Gg(NEW COLUMN)+15.0%

United States(NEW COLUMN)from 4,844 million tons

(NEW COLUMN)to 5,410 million tons(NEW COLUMN)+11.7%

Japan(NEW COLUMN)from 1,048 million tons

(NEW COLUMN)to 1,128 million tons(NEW COLUMN)+ 7.6%

Germany(NEW COLUMN)from 1,208,807 Gg

(NEW COLUMN)to 1,019,745 Gg(NEW COLUMN)-16.0%

European Union(NEW COLUMN)from 3,320 million tons

(NEW COLUMN)to 3,327 million tons(NEW COLUMN)+ 0.2%

United Kingdom(NEW COLUMN)from 741,484 Gg

(NEW COLUMN)to 679,850 Gg(NEW COLUMN)- 8.0%

Russia(NEW COLUMN)from 2,299 million tons

(NEW COLUMN)to 1,415 million tons(NEW COLUMN)-38.5%

Africa(NEW COLUMN)from 599 million tons

(NEW COLUMN)to 729 million tons(NEW COLUMN)+21.7%

China(NEW COLUMN)from 2,389 million tons

(NEW COLUMN)to 2,893 million tons(NEW COLUMN)+21.1%

*3*Sources: U.N. FCCC, Subsidiary Body for Implementation, "National

*3*Communications From Parties Included in Annex I to the Conven-

*3*tion: Green Gas Inventory Data from 1990 to 1998," October 11,

*3*2000, plus newspaper coverage for some developing regions.

*3*COP-6 reported that 20 countries reported increases from 1990

*3*through 1998.

In areas where there have been emission reductions and deceleration of emissions increases, these have not uniformly been linked to the effect of law. For example, Russia and other former Soviet states experienced an immense economic downturn in the reporting periods.

The relationships between goal-setting for climate change and the actual atmospheric results are so complex that we can draw very few convincing conclusions, but it is clear that progress, if that term can be applied at all, is limited. To be fair, some of the emissions increases were set in place before the regime was conceptualized. Also, changes in the Kyoto part of the regime are possible and are generally predicted; of 75 participants in a high-level meeting on climate change, fewer than 10 saw the Kyoto Protocol as the final agreement on greenhouse gas controls, and most expected a future replacement measure.²⁸⁷

Assessment: The Contribution of International Environmental Law

In considering the climate change case, I address a regime that includes the law of the FCCC and of the Kyoto Protocol and its refinements in numerous COPs. The regime has recognized the need in international environmental law for innovations in compliance promotion. These include allowing the involvement of NGOs, providing financial and other economic incentives for participation, emphasizing education, and recognizing that for many nations self-interest ultimately will call for the control and management of global warming. Innovations offered include the flexibility devices. Market mechanisms are generously recognized. Furthermore, the regime attracts the participation of many nations by requiring little of them and provides for their reporting before they need to commit to controls.

The Secretariat has performed in a professional manner, and the COP strategy has been able to respond to some, although not all, challenges to ongoing cooperation. It recognizes the need in international environmental law for indefinite iterations among countries to resolve differences. Overall the COP approach reflects a general ability of even large numbers of nation-states to work over long periods of time toward cooperative outcomes. The regime has credible and impressive links to the evolving scientific information base. There is an appropriate adoption of principles of soft law, including the precautionary principle and that of common but differentiated responsibilities of countries. Definitions are relatively clearly articulated, and a financial mechanism is being provided. Furthermore, the design builds on an evolving acceptance by the private sector of the problem and the alternatives to its control.

Yet there are very large weaknesses. Ease of entry is countered by ease of exit, as the decisions by the United States and later Australia to abandon the Kyoto process demonstrated dramatically. Emission limitations are both unrealistic in the short run and inadequate in the long run. It is not clear what ultimately will be done to enforce obligations, reflecting a desire to avoid difficult choices about what must be done. The same can be said for the consideration of regulatory measures and for what many consider inevitable, a global carbon tax. Some acceptable approaches under the flexibility devices may be in conflict with international trade law.²⁸⁸

[33 ELR 10415]

Most fundamentally, the regime has not evolved to influence sufficiently, through any means, consumption by the billions of sources of greenhouse gases, and it lacks an acceptable position on equity in seeking changes in consumer patterns. Climate change affects people differentially in terms of location, age, and income.²⁸⁹ Unless there are compensatory strategies generated for the effects of cutbacks on the poor, the very young and very old, and certain geographic groups, opposition to across-the-board requirements to limit consumption could be significant.²⁹⁰

Conclusion: Lessons Learned, Components of Effective Law

The overall assessments presented in the beginning of this Article and the five case studies suggest the immense challenges that international environmental law faces. They also reveal the diversity of analyses of the effectiveness of the law. Conclusions about the elements that make an international legal instrument effective reflect both absence of consensus on goals and differences as to the paths or influences to realize them.

There is some convergence, however, on what might be called factors linked to successful environmental law. Of course, effectiveness can mean many things. Most simply, but most ambitiously, it denotes a solution of the environmental problem that brought together the lawmakers. It can focus on changing behavior in relevant ways. It may translate to realizing declared objectives (short of or different from quantified environmental improvements) or to creating correspondence between institutional outputs and expert advice. It can mean improving environmental quality over some hypothetical state of affairs.²⁹¹

However defined, the list of factors linked to effectiveness is almost embarrassingly long. Credible analysts do offer the following more manageable list. A fair amount of scientific consensus about the existence and causes of the international problem is fundamental, as is political support within the participating nations. The organizational capabilities of the secretariat and other implementing institutions should be supported. The secretariat needs to have resources and information. The regime institutions must be able to create ad hoc alliances among themselves, and the regime must have an understandable and legitimate dispute resolution process. It should be open to public and scientific input. NGO involvement of a clearly determined type is important. A modest entry commitment should suffice for participation. A compliance-promoting mechanism, whether a taxing capacity or a subsidy or trust fund, and recognition of varying capacities of developed and developing nations are essential.

The regime should be based on consensual understandings of clear policy objectives. It should ensure to all stakeholders, including NGOs and the public, open communication and access to relevant information. It should establish and strengthen norms for cooperation, implementation, and compliance. These should be promulgated by a legitimate, competent, recognized authority with a willingness and ability to interpret treaty terms and to enforce them. Questions of liability and sanctions should be answered clearly. The institutions involved should foster collaboration and cooperation in agenda setting, negotiating, and bargaining. Public participation should be encouraged not only during policy formation but also in implementation. The treaty regime should embody consensus-building mechanisms and provide for an ongoing forum to manage issues. Finally, the regime's organizations must have sufficient human and financial resources.

International Environmental Law: Expectations and Recommendations

By several criteria the development of international environmental law has been impressive. Increasingly sophisticated instruments have been drafted. Much of the world community has accepted principles that reflect progressive, scientifically based understandings of environmental protection. Several regimes have focused on ways of successfully implementing principles of protection. Compliance-promoting ideas have been offered and employed.

Despite these overall positive conclusions, the record is rather mixed. For every few successes (reductions in whaling and in the production of ODS, for instance), there is a failure or at least a relatively weak initiative, such as the Basel Convention or the forestry regime. Principles are often co-opted to favor interests incompatible with environmental protection. Some instruments are ratified but very incompletely implemented. Other initiatives, possessing characteristics of effective law, are insufficiently funded.

An evaluation of the success of international environmental law must include an analysis of effects on the physical environment itself, the concrete challenge that is the subject of the initiatives. When so understood, the question is empirical, one that in most cases is not sufficiently modeled and understood. Results come from assessments of physical parameters and from expert judgments, the former being the most significant benchmark. It is a benchmark that also is difficult to quantify adequately, and tracing its roots to various phases in the evolution of a legal regime is a task filled with uncertainties.

There is nonetheless a growing understanding that, even by the most rigorous criteria, a more effective law can be realized. Here I highlight characteristics needed to achieve that goal. I first lay out conditions that are expected in the [33 ELR 10416] world of policymaking in which the law evolves. There is a growing appreciation that green is good, that environmental management achieves important national and corporate objectives, and that multinational organizations will increasingly accept these understandings.

Unfortunately, talking green is also good, so there has been an adoption of terminology associated with environmental protection independent of changes in performance. Expectations for the conditions in which law will be made include a greater incidence of democratic participation at the international level, greater convergence in the science that is the background for the consideration of treaties, and some convergence in the assessment of the effectiveness of international environmental instruments. I also expect more widely shared understandings of what needs to be done to create effective legal regimes. Each of these conditions has implications for the design and reform of international environmental law.

Expectations About the Policymaking Environment

The Greening of Geopolitics

Expect New Environment-Friendly Concepts and Worldviews to Enter the Everyday Discourse of International Activities, Including Politics, Trade, and Development

The significance of international environmental protection is increasingly recognized. There is no dearth of concepts on which to build meaningful international environmental regimes, and the concepts are moving ever-more quickly into the official statements of institutions that matter. Societal conditions are creating a strong public interest in the environment, including ecosystem survival and its relationships to the health of the world population. A greening of geopolitics has been made possible by the collapse of the Soviet Union and the recognition of the limits of armed resolution of conflicts. As former Norwegian Prime Minister Gro Harlem Brundtland noted: "Already, a new awareness of global ecological interdependence is filling the political space which used to be occupied by divisive Cold War concerns."²⁹²

An overall assessment of this potential requires an analysis of the interests that international environmental law serves. Many of the new understandings will be implemented within a policymaking world that will not change dramatically over a short period of time. Forces that generated decades-old institutions likely will not respond much to the discovery of new conceptual understandings, or speculations, or models of how the world operates. These often are offered by academics, members of NGOs, and others who are usually at the periphery of actual decisionmaking. Tolba said after the Stockholm Declaration that governments "need to change gears. We need a change of heart."²⁹³ Such changes come, if at all, slowly and with considerable cost. Also, discourse can change dramatically without an air shed being saved, a river cleaned, or a species returned from the brink of extinction.

An underlying set of premises within the newer environmental law no doubt reflects the same interests that underscored the major environmental and economic policies of previous decades. Nonetheless, themes such as sustainable development, environmental management, privatization, and ecosystem analysis will continue to enter the vocabulary of regional and global environmental strategies.

The meteoric rise of the concept of sustainability is a case in point. UNEP, through Agenda 21 and the Rio Declaration, brought the concept to the international community in an explicit way. Much earlier the groundwork was laid (without the exact term being used) for its emphasis in domestic and international affairs. It is at the very basis of UNEP by its constituent act, U.N. General Assembly Resolution 2997 (27), which stressed the need "to assist developing countries to implement environmental policies and programs that are compatible with their development plans."²⁹⁴ In 1983, UNEP's role in pursuing sustainability was recognized by the World Commission on Environment and Development (the Brundtland Commission), which gave the term general use. The idea was to reorient major international organizations through improved coordination and cooperation toward sustainable development.²⁹⁵ Brundtland defined this as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs."²⁹⁶ UNEP in its fifteenth Governing Council attempted to clarify the idea: "Progress towards national and international equity, as well as the maintenance, rational use and enhancement of the natural resource base that underpins ecological resilience and economic growth."

UNEP introduced the concept into planning for environmental law. The first long-term Program for the Development and Periodic Review of Environmental Law (the Montevideo Program) was prepared by a meeting of senior government environmental law experts in 1981.²⁹⁷ After Rio, the U.N. Commission on Sustainable Development was created with the power to recommend policies to the U.N. Economic and Social Council. Nation-states have also institutionalized efforts to adopt sustainability as a policy anchor. The United States, for example, formed the 25-member President's Council on Sustainable Development. In 1988, 22 directors of U.N. agencies and programs met to plan and to coordinate their activities to promote sustainability.²⁹⁸

The 1992 Biodiversity Convention defines sustainable development in its biological context: "The use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological resources, thereby maintaining its potential to meet the needs and aspirations of present and future generations."²⁹⁹ Both it and the Climate Change Convention can be seen as making sustainability part of positive law. The World Trade Organization's [33 ELR 10417] (WTO's) constitutional instrument refers to "optimal use of the world's resources in accordance with sustainable development."³⁰⁰

The sustainability concept avers that

the environment and economic growth need not be in conflict … without protection of ecological systems, global economic decline … [is] inevitable. Conversely, without economic progress, elimination of poverty, satisfaction of the material wants of people of the developing countries, and extension of human rights, efforts to protect nature and the earth's life-support systems [are] doomed to failure.³⁰¹

Notions of sustainability will continue to motivate the development of international law, but whether they will help create effective law will depend on whether common meanings linked to making the environment a priority are adopted. As used so far, there has been considerable skepticism. Howard Mann argues that all international law should "be seen as being for sustainable development, rather than having the legal community struggle to define a new, separate or overarching branch of law—international law of sustainable development"³⁰² Sustainable development, furthermore, is a concept that can invite an overly anthropocentric and instrumental interpretation, which can lead to a "development-oriented view of environmental resources."³⁰³ It can be applied politically: "sustainable" means based on participation of local interests, but those interests may or may not conserve resources for future generations. The literature on indigenous resource exploitation suggests that these forms may generally be more sustainable, but the record is not clear. Some indigenous patterns are environmentally destructive, and "local" participation no longer equates with "indigenous" in many parts of the world.³⁰⁴ Locals may be among those most focused on short-term gains that derive from exploitation. Articulating high-sounding terms such as "sustainability" may also divert international efforts to achieve consensus on more practical matters, matters backed by science and politically acceptable, which can be effectively implemented in the mid-run. The most severe critique of sustainability holds that the environmental movement can be the handmaiden of forms of polluting development based on assertions that such development is green.

Nonetheless, different meanings of sustainability need not counter effective international environmental actions based on law. International environmental scholar Pamela Doughman suggested in a study of the use of the term by multilateral development banks, governments, NGOs, and the private sector in regard to water infrastructure projects in Mexico that variations may promote communication and, eventually, cooperation.³⁰⁵ There are more direct implications for an international environmental law. Critical analysis of such phrases—"ecosystem-based analysis," "privatization," and "environmental management" are similarly imprecise—is essential and is available in work by NGOs and in the academic literature. These general terms are a starting point for discussions of specific choices by states; they can be a means of bringing negotiators together at a high level of generality. They can provide ideas for joint setting of a research agenda, and they may stimulate consideration of specific strategies that environmental law can promote.

Participation of Nongovernmental Organizations

Expect That International Environmental Legal Regimes Will Embrace Forms of Participation That Will Promote Greater Compliance

The continued involvement of new actors with interests that counter an environmentally destructive status quo can be expected. In Rio, large numbers of people with strong environmental agendas participated in the convention and in its parallel people's version and influenced official actions. Since that time, hundreds of environmental action groups have been formed in every region of the world. In North America under the NAFTA institutions, the number of submissions brought by NGOs and private entities is striking when contrasted to the few consultations and arbitral panels assembled by the Parties themselves. Green parties at the domestic level have played notable roles in influencing national legislation. They were influential in the collapse of the environmentally destructive Soviet regimes, and they have earned considerable legislative power in the United States and in Europe.

As it relates to the effectiveness of law, however, this expectation must be tempered. As recently as 1996, Koskenniemi could write, "[NGOs] do not play an official role in compliance review in any field of international law."³⁰⁶ That is no longer precisely accurate in the international field, but environmental NGOs generally have limited roles in official proceedings. Where they are active, an international environmental law also needs to recognize that although NGOs can be productive players in treaty making, their contributions are not always positive. Many NGOs have objectives inconsistent with global environmental protection. Some are not particularly democratic, and rules for involving them in international proceedings may themselves be undemocratic. Motivations for participation include sustaining an organization independent of its impact on treaty evolution. Furthermore, competence is low in some NGOs, and even when objectives are clear and philosophical positions compatible with global stewardship, logistically it can be difficult to include large numbers of participants in the mundane tasks of instrument preparation and implementation.

[33 ELR 10418]

Cooperation Based on Science

Expect Science to Establish Causal Links Sufficiently Compelling That Nation-States Will More Readily Accept Inroads Into Sovereignty

Science will continue to move toward consensus in some areas that inform the design of international law. Epistemic communities of scientists will grow in number and influence. International organizations, such as UNEP, will promote activities furthering agreement through collaborative meetings of scientific and technical bodies.³⁰⁷

The function of science is important in creating agreement, in decreasing uncertainty, and in suggesting policy responses to global degradation. Some observers, however, have exaggerated its role. They choose to select unrepresentative examples of scientific findings that led to international policy initiatives, or they fail to consider cases where scientists disagree in fundamental ways about the importance of information. An example involved negotiations over the agreement on persistent organic pollutants (POPs). Some environmental groups, focusing on scientific information on ecological threats, called for global termination of production and use of dichlorodiphenyl-trichloroethane (DDT), but 400 medical researchers countered with data suggesting that DDT helps control malaria, which has approximately three million victims each year.³⁰⁸ Both groups are correct scientifically, but the issue is larger than finding the best data. Science cannot determine which objectives of an international environmental policy are most important.

Another example involves genetically modified crops and organisms. Here serious disagreements are found between the north and south, among the western industrialized nations and within them. Scientific issues may over time be more amenable to empirical investigations rather than conclusions about values and priorities, but sorting one from the other is not easily done in the politically charged world of trial crops, square tomatoes, giant vegetables, and enhanced meat, poultry, and fish products.

True, the dominant scientific view internationally is that the risks of development and use of genetically modified crops and organisms are small and manageable. A type of biotechnology—plant hybridization—has a long and benign history. Critics, including some scientists, however, counter that the behavior of viral sequences encoded on plants is not well understood, that deoxyribonucleic acid (DNA) migration through ecosystems has not been well studied, that secondary metabolite or protein toxins could result from gene manipulation, that the level of uncertainty in predictions of some results of experiments is very high, that risk assessment criteria are not a matter of scientific consensus, and that resistance of some crops could undesirably spread to weeds.³⁰⁹ Furthermore, the science that forms the basis for the conclusion that genetic modification is safe from a broad human and environmental health perspective does not offer the last word on "the broader cultural, social, and economic dimensions that are of wide concern to the public and many NGOs."³¹⁰ Laboratories that seek to learn more about the dynamics of genetic modification may be controversial when sited in developing nations without environmental impact assessment guidelines.

These and other disagreements, including skepticism about the existence of objective science when economic and regulatory implications of results are great, help explain the very different domestic laws on the regulation of genetically modified organisms.³¹¹

The dynamic among science, policy, and law may be more complex in the context of certain environmental problems. As Suzanne Levesque, following international relations specialist Karen Litfin, explained for the function of scientific information in transboundary resource management between Canada and the United States:

"The power of competing knowledges—likely to be decisive of scientific uncertainty—was the critical factor" [in the outcome of the global ozone regime]…. Atmospheric science did not provide a foundation of objective, value-free facts that resulted in international cooperation. Instead, scientific knowledge "was framed in light of specific interests and pre-existing discourses so that questions of value were rendered as questions of fact, with exogenous factors shaping the political salience of various modes of interpreting that knowledge" …. Litfin's study demonstrates that scientific knowledge, as opposed to epistemic communities of scientists, was critical to the outcome of the negotiations. It highlights the fact that ability of scientific knowledge to foster cooperation was mediated by how scientific information was interpreted and framed as well as by whom the knowledge was interpreted and framed.³¹²

As to the origin and development of a regional conservation initiative (Yellowstone to Yukon or Y2Y), Levesque observed:

Y2Y does not derive its power from the guidance of a consensus-based epistemic community of scientists or from the ability to coordinate consensual action based on a body of objective, value-free facts. Instead, the network's power is derived from its ability to achieve consensus-based collaboration by interpreting and framing scientific information and knowledge in ways that reinforce and support network interests, identities and goals.³¹³

Other than the idiosyncratic Montreal Protocol, there are few examples of science driving international action, although [33 ELR 10419] in many more instances science has played a large role in promoting new official actions.

Diplomats do rely on scientists, including government-appointed experts, to undertake risk assessments and to relate policy options to effective risk management.³¹⁴ Putting it more gently than some critics, Brown Weiss noted that "on the one hand, this gives governments confidence in the outcomes, which is essential; on the other it may invite what has been termed 'negotiated science,' a matter about which some of the international scientific community have been particularly critical."³¹⁵

Negotiations for the climate-change convention illustrate some of the processes of science and policy interaction. From the perspective of international environmental law making, two expectations about scientific consensus need to be critically addressed. First, the science on climate change's causes, its effects, and approaches to successful intervention will continue to converge. Second, science will drive an effective international legal response.

Convergence is occurring for some of the science. Recent independent studies confirm that there are changes in the earth's outgoing long-wave radiation spectrum, that there is a warming trend in the surface temperature over the past 20 years, that ocean temperatures are rising, that the thickness of Arctic sea ice is declining, that the Greenland ice sheet is melting, that the ice-free season has gotten longer in the past century, and that the Himalayas are warming.

The Third Assessment Report in 2001 made several reaffirmations of the IPCC's earlier work and added new findings. It characterized its results with qualitative descriptions of their certainty. The panel stated with high confidence, i.e., with a 67% to 95% judgmental estimate, that recent regional changes in temperature have had discernible effects on many physical and biological systems and that some social and economic systems have been affected by the increasing frequency of floods and droughts.

Other IPCC conclusions also suggest convergence but underscore considerable gaps in knowledge that relates to policy response. There was high confidence in the prediction of a significant disruption of ecosystems. Large-scale changes in oceans will include increases in sea surface temperature and mean global sea level, decreases in sea ice cover, and changes in salinity, wave conditions, and ocean circulation. Heat waves in urban populations, increased stress on coral reefs, and increases in the transmission of malaria and dengue-two vector-borne infections will be experienced.

Some quantitative projections are beyond respectable challenge, but some scientists criticize the IPCC-3 results as rushed and unconvincing,³¹⁶ and certain assessments related to law are made with very limited confidence. In sections they are obvious; they would not advance policymakers' inclinations to change their international obligations drastically. A few respected scientists continue to insist that there is not "any evidence that this is a serious problem."³¹⁷

Scientific consensus about predictions of effects can be achieved while scientific consensus about means to address global warming remains elusive. "Regulatory uncertainty"³¹⁸ is as much a constraint on policy choice as is scientific uncertainty. For example, COP-6³¹⁹ faced with the question of how to account for the removal and storage of carbon from the atmosphere by forest sinks, was stymied by a split between Parties who viewed knowledge as complete enough to include sinks in emissions reduction calculations and those who read the science either as incomplete or as identifying serious problems with reliance on sinks. Economic science also fails to converge on the value of models that describe proposed effects of different strategies, from taxes to subsidies and from trade programs to regulation. Scientific consensus likely will continue to grow, but it will constitute only one factor in choices among politically controversial control options and implementation strategies.

One can debate the notion that pure scientific findings exist and still recognize attempts to politicize science to achieve one or another end—not necessarily a less environmentally stringent end—in international environmental law and policy. Maurice Strong has said (begging the question but certainly giving understandable reasons for the absence of effective worldwide efforts at controlling environmental pollution): "Environmental problems are like a cancer spreading insidiously through the body. They will probably kill us eventually, but the symptoms are not acute enough to prod us into saving ourselves."³²⁰

Some environmentalists argue that a scientific explanation of the environmental threat is qualitatively different from that of other subjects of legal control and that it demands a different kind of international respect. Even where scientific consensus is not complete, dramatic new centralized international initiatives are warranted because ecosystem collapse and related environmental disasters suggest the compelling need for the precautionary principle. Others consider this position not only unjustified but also unscientific and dangerous, pointing as Nespor does to the history of poor prediction in the environmental policy arena. Nespor's examples include miscalculation of coal and oil reserves, gross underestimation of food production, overly dire statements about deforestation and the contribution of chemicals to carcinogenesis, as well as exaggerated assessments of the process of desertification.³²¹ Furthermore, advocacy of particular lifestyles may be driving interpretations of data and decisions on environmental policy. Aggressive precaution with costly side effects on economies and other social goals may follow.

Still, science may lead to greater cooperation in international environmental matters in another way. Although the science on a particular question may not be compelling, the entry into public discussion of scientific considerations of environmental problems has been dramatic; it may suggest [33 ELR 10420] a more general interest in actions to preserve environmental resources than either the scientific community or governments actively promote. In tracing the impressive growth of a sector of world society concerned with the environment, the "rise of scientific discourse and association has been central. It universalized and legitimated earlier and narrower conceptions of the environment as the locus of either sentiment or particular resources."³²² States may be pushed farther into international cooperation despite the mainline objectives of preserving sovereignty that they would seek absent popular domestic concern.

The implications of these observations are straightfor-ward. In the limited number of circumstances of clear and consensual scientific appreciation of an environmental impact link, law will be able to guide nation-state movement to select among control strategies. In other situations, negotiators will face choices where values other than environmental protection are salient and where science is the basis of competing, not converging, advocacy.³²³

Corporate Advocacy of Green Management

Expect Multinational Corporations to Advocate Less Need for Regulation Because of Their Green Management Strategies

For several reasons major private sector enterprises have recognized the value of promoting environmental protection policies.³²⁴ To a certain extent, green management of the kind espoused by Ford, DuPont, and major German and Scandinavian companies reflects the values of company executives, but the expectation articulated here is based on the more systemic factors that I discussed earlier. Green management can save money, it can enhance a firm's relations with its customers, it is a wise marketing technique, and it can improve a company's relationships with insurers and with domestic and international regulators.

As a case example, industry will continue to assert that climate stability can be achieved if business takes a leader-ship role. Strong initiatives on the part of major multinational corporations to pursue technology-trading approaches, serious commitments by leading chief executive officers (CEOs) to fundamental production changes, and consumer-driven changes in product types will be seen.

Some corporations will identify solutions to specific climate-altering problems, and markets will disseminate the innovative approaches that they identify. Ford, DuPont, Mitsubishi, BP Amoco, Royal Dutch Shell, United Technologies, and others will see the benefits of taking anticipatory measures to combat climate change.

Major European and other industrialized wealthy nations will continue to hold the position that the private sector must be deeply concerned about the environmental threat of climate change and can profit by being an early adopter. A case in point was the surprising response to the World Bank's Prototype Carbon Fund. It closed its first subscription period (January 15 to April 10, 2000) with $ 35 million more than expected, almost $ 135 million in contributions. The fund sponsors projects designed to produce emission reductions consistent with the Kyoto Protocol. Private companies and government investors will receive a share of the reductions as credits. Canada, Finland, Japan, the Netherlands Norway, and Sweden have led the way on this initiative.³²⁵ In the United States, the private Joyce Foundation has funded an innovative experiment in trading greenhouse gases by the Chicago Climate Exchange.

Increasing availability of critical information will make the misuse of green discourse risky, and over time the positions that a company publicizes will become part of its culture, driving the decisions and actions of new employees. A related expectation nonetheless persists: the underlying consumption-promoting ethos of the multinational corporation will be at the heart of certain types of environmental degradation. A cleaner Ford continues to affect land patterns and use natural resources in ways ultimately antithetical to climate stabilization, sustainable development, and related environmental goals.³²⁶

The implications of these corporate orientations for international environmental law are twofold. Policymakers will see an ever-expanding inventory of strategies that focus on business's contributions to global environmental steward-ship. At the same time, critics will question the actual performance of these approaches and contrast them with potential results of regulation and other government-guided interventions. Policymakers will need to make difficult decisions about the nature of the legal provisions that focus on industry.

Innovations in Compliance Mechanisms

Expect Greater Innovation in Pursuing Compliance With International Environmental Law

Legal scholars, policy analysts, and government officials offer many compliance-promoting mechanisms, and several have been introduced into international instruments. They range from establishing participatory mechanisms for making treaties to identifying funds and other economic incentives, to creating ongoing compliance committees. Managerial approaches to achieving international environmental goals will be more widely advocated as criticism of regulatory strategies mounts.

This focus on compliance will nonetheless confront implementation challenges, complicated in the national [33 ELR 10421] arena³²⁷ and much more difficult at the supranational level—both under traditional environmental diplomacy and under the managerial innovations.

In introducing innovations, the translation of concepts into dozens of languages across hundreds of countries is an enormous challenge. Where agreement is reached about meaning of terms at one level of abstraction, making the terms significant on the ground can be difficult. Beyond these relatively cosmetic differences are serious and enduring cultural disagreements about the best practices for reaching goals under a rule of law and without developed legal systems.³²⁸ Funding may also be an obstacle to implementing innovative ideas, such as fostering NGO participation or creating compliance accounts, not only because some countries lack money but because of shifting priorities in national budgets. Furthermore, those who commit to implementing a regime must communicate needed changes to numerous agencies, regulated entities, and the public. This is not easily done in many countries.

Some implementation difficulties derive from federalism. Subfederal levels of government may have strong conflicting positions on international treaties, and in some jurisdictions those governments can block effective implementation. Witness the struggle of commonwealth versus state authority in Australia over the question of how to respond to global climate change. In Canada, the full impact of NAAEC has not been realized in part because some provincial governments have not adopted the side agreement.³²⁹

These expectations—a growing rhetoric about and some commitment to a sustainable physical environment (to greening international law), a growing consensus in some global environmental science, a greater convergence of private sector goals and the public interest in environmental protection, and increasing knowledge about ways to achieve compliance—underscore the recommendations I offer for the next generation of international environmental law.

Recommendations for the Structuring of International Environmental Law

Within the context set out above and the context of a pluralistic world of international policy, what can be done to enhance law's role in reaching global preservation? Among the array of available tools, which ones should the international community of sovereign nations select, promote, use, and enforce? Based on experience with successes, based on disappointment with failures, which characteristics of law making and implementation should be emphasized?

Not all of the recommendations address each of the numerous international environmental quality challenges.³³⁰ These range from attempts to control separate nonmalicious actions of millions of people to measures against a few individuals who destroy natural resources to achieve a financial or military advantage (international arson on oil fields, illegal movement of toxic materials). Groups of states or individual countries create harm outside their regions, on a single nation downstream or a large air shed that covers many countries. Some destruction, such as burning of the forests in Indonesia or Brazil, involves the deliberate but legal activities of small groups of people or a few nations. Some, such as dumping from cruise ships, comes from daily violations of many people. Some manifests itself immediately in clear and dramatic ways (loss of another species of once abundant fish). Some, such as global warming, will take years if not decades to register as insults.

The history of the performance of international environmental law is one of common characteristics, but it is not explainable by a single dynamic.³³¹ Remarkably particular at times, generally applicable at others, are factors that promote successful treaty making and implementation. Some are unique to the environmental circumstances, so that addressing them in policy for a different problem will not be useful. Others—those identified by managerial and participation-centered analyses of why nations comply, those of the regime theorists among political science, and those from organizational theory—are relevant to many efforts to influence complex behaviors. Their insights combine to approximate a midlevel theory³³² of effectiveness of international environmental law. That theory generates some shared recommendations.

Recommendations build on knowledge of what works in the international community. These are not particularly ambitious. The most ambitious strategies are not only unrealistic but are also, in many cases, undesirable. Some should not be implemented. For example, I do not advocate creation of centralized supranational authorities with strong powers. Prerequisites for them to be effective and fair do not exist internationally. Citizens must be watchful of centralizing authority in their own states, and they need to be triply concerned about delegating authority upward to organizations that do not possess records that merit assumption of such power. Unfortunately, some elements of the less effective U.N. agencies remain cases in point.

Considerable progress has already been made. It provides the backdrop for evaluating just how much change recommendations require. As Brown Weiss wrote:

The provisions in the new agreements are generally more stringent than in the previous ones; the range of subject matters is broader; and the provisions for implementation and review are more sophisticated. One encouraging observation from this experience is that the learning curve demonstrated in international environmental law is unexpectedly steep.³³³

Although learning by nations has been smooth, implementation has not. Furthermore, each successive attempt to assure implementation and compliance will be scanned with ever more vigilance; nations wonder if the benefits of entering international regimes are worth the sacrifices. The U.S. Senate's Byrd-Hagel Resolution during the Kyoto negotiations is instructive.

The mammoth proliferation of international environmental law suggests that the international community should have a greater experience in its workings before making [33 ELR 10422] large and fundamental additions to its corpus. Less frequent adoption of new instruments and more effective implementation of those that exist are needed:

International lawyers … should have a special interest in avoiding environmental legal window-dressing or fictitious law making: Legislation without concern for the effectiveness of the norms enacted, or the commitments states enter into, is self-defeating. More time and effort must be spent on strengthening monitoring of compliance and implementation of already existing commitments. Unless international environmental law on the whole … remains credible, no progress toward that goal [sustainable development] will be possible.³³⁴

There are a few other points of departure. First, international environmental law contributes to fixing a set of norms and then influences by sanctions and incentives those entities that deviate in some significant way for some significant time from those norms. Second, although there are sound arguments against centralized law making, in select areas it has been effective. The conditions for such action (peace-making in the former Yugoslavia, selective intervention in Africa) have been particular and special. Occasionally they may exist in the environmental arena. Third, many nonlegal instruments—from environmental education to green management—show promise for achieving environmental protection. To focus on the law is not to deny the utility of other methods. Rather, my purpose here is to highlight where the law has a unique function and to demonstrate how law can be used to channel some of the most effective elements of other instruments. They can then work in parallel to influence collective action. Law is not everything. It is not the only thing. Nor is it impotent (as some have argued in treatments of its deficiencies in general). It is a separate, identifiable institution that influences behavior, even very complicated behavior that creates climate change, destroys the protective ozone shield, and threatens the existence of a species.

Participation-Centered Global Law Making

Fundamental to the creation of effective global green law is participatory agreement making by nation-states. A further orientation toward an ongoing, egalitarian, interactive environmental diplomacy is called for. Countries thereby will learn about each other's priorities, not only as those are set out in policy briefings but in face-to-face deliberations. Values will be communicated and interpreted. Negotiators will reach conclusions about the accuracy and trustworthiness of information that is supplied by their peers. Disputes over provisions can be mediated in processes equitable to participants with vastly different international negotiating capabilities.

A discourse with few if any parallels in complexity needs to evolve: it touches on subjects as diverse as tools for monitoring pollutant emissions and effects, human rights, and specified levels of consumption and comfort. Communications must be orchestrated among large numbers of people with different professions, languages, and world views.

Despite globalization, including in communication, the amount of misunderstanding, ignorance, and misinterpretation of the positions of people on the other side of boundaries is significant. Perceived differences jeopardize the creation of a common understanding of treaty and other instrument choices. Transactive processes and joint participatory efforts are indispensable to the movement toward consensus in law, as in many other areas of international commerce and policy.

It can be surprising how different cultural perceptions are about the need for international intervention. At the 1999 Seattle meeting on global trade, some delegates from developing countries believed that the U.S. government was responsible for the violent street demonstrations, choreographed to justify the American position on a need for links between trade and environment and labor objectives. Also startling to western NGOs was the position of some academics and NGO leaders from Africa, Asia, and Latin America that culminated in a statement opposed to including environmental and labor issues. Third World representatives asserted that these goals were promoted for economic gain by the wealthier nations, selectively targeting the developing world.

The tuna embargo against Mexico; the shrimp controversy involving the United States on one side and India, Malaysia, Pakistan, and Thailand on the other; the controversy over contaminants in gasoline involving Venezuela and Brazil as exporters; the concern, principally of the United States, with toxic inhalation hazards associated with inadequately packaged materials; Sweden's assessment of risks associated with transport of hundreds of millions of airbag items; France's ban on chrysotile asbestos, citing a risk of cancer at any exposure; the value of flexibility mechanisms to combat climate change; the need for regulation of genetically modified organisms—each involved strongly held cultural and national differences on subjects of international environmental law.

Ignoring such differences is a formula for treaty stillbirth. Joint and iterative articulation of the nature of an international environmental problem, joint analysis of the strategies that might be used in addressing it, transactional generation of ideas on successful implementation and compliance-promoting activities are essential. Treaty making must involve both governmental negotiators open to learning (including through joint fact-finding) as well as teaching and civil society. As the Salzburg Initiative noted, treaty making should implement a "bottom-up" approach to "aggregating increasingly larger clusters of countries" into coalitions that can articulate important negotiating points.³³⁵

Social science provides some theoretical basis for advocating cooperation.³³⁶ "It is a central insight of almost all approaches to international regimes that actors may cooperate and establish international regimes without having to sacrifice the pursuit of their own interests."³³⁷ Thomas Gehring's work may be subject to some criticism because the cases he [33 ELR 10423] studied do not provide solid support of his theory³³⁸; nonetheless, the rationale is convincing:

During negotiations the actors gradually develop similar interpretations of recognized facts. Their appraisal of the desirability of certain options for action converges, and coincident expectations of appropriate behaviour emerge on this basis. Common interpretations, views and expectations are the result of a communication process during which understanding is reached. The result is collectively accepted by the actors involved and has already passed the coordination mechanism of the regime…. The gradual development of collectively agreed views of a social problem and its appropriate solution transforms a group of participating actors into a community.³³⁹

In a process that aims to exchange information, rather than impose a position, what seems obvious to one side at the beginning becomes, under certain negotiating scenarios, more open to understanding by the other side. Compliance with a requirement is influenced by the presence or absence of an actor's participation in articulating norms and rules. This is among the most lasting findings of social psychological and organizational research.³⁴⁰ It helps to explain compliance with international law by nation-states, which on the ground must participate as people in groups.³⁴¹ Dynamics of norm internalization occur and generalize, spread among the nested small groups in an organization, within the institutions in the nations, and within the international organization or regime. Many leading students of international law have described the dynamics of norm creation, internalization, removal of barriers linked to ignorance, and creation of legitimacy. The legal scholar Harold Koh further develops the understandings made in part by Profs. Abram Chayes and Marc Fisher in the international context, offering what he calls "the missing causal element," transnational legal process:

Such a process can be viewed as having three phases. One or more transnational actors provokes an interaction (or series of interactions) with another, which forces an interpretation or enunciation of the global norm applicable to the situation. By so doing, the moving party seeks not simply to coerce the other party, but to internalize the new interpretation of the international norm into the other party's internal normative system. The aim is to "bind" that other party to obey the interpretation as part of its internal value set. Such a transnational legal process is normative, dynamic, and constitutive. The transaction generates a legal rule which will guide future transnational interactions between the parties; future transactions will further internalize those norms; and eventually, repeated participation in the process will help to reconstitute the interests and even the identities of the participants in the process.³⁴²

Much of the research on participatory dynamics involves problems addressed at the small group and community levels. Application internationally, however, is merited for several reasons. First, the international arena is composed of dynamic aggregations of small-scale levels. Negotiations take place among groups and communities of experts. Second, domestic policy and law making are more mature than in the international community, but they are similar in several fundamental ways. Entities that have chosen to come together to control themselves for common benefit are seeking the best ways to do so, with imperfect information and often different cultural understandings. There is a need to establish or reaffirm legitimacy. There is a need to create understandability and clarity.

These appreciations not only provide a rationale for participation-based international law but also generate tool kits and instruments of active management.³⁴³ They include transparency, reporting and data collection, mechanisms of verification and monitoring aids, dispute settlement fora, capacity building, and strategic review and assessment. Other helpful conditions include iterative functionalism. David Lewis Feldman, an international environmental analyst, defines it as "the replication and gradual refinement of procedures, rules, and obligations negotiated by nationstates in previous agreements in larger, more complex contexts."³⁴⁴ Supportive circumstances include a comparable voice among countries, an equitable commitment of resources, a careful selection of activities determined on the basis of organizational consensus and expertise, and an earned trust by a secretariat and its subsidiary bodies.

This checklist provides some of the bones of a skeleton of a law making mechanism and a body of law. It needs to be fleshed out with details: What does transparency mean in the CITES context? What data collection is most important in the Black Sea international legal regime? How is confidence created among such a large number of representatives, often changing even within a nation, in a COP on climate change or transboundary hazardous waste?

Not only will the body of resulting law reflect achievable substantive goals, but it will also have the important additional element of implementability. Professor Lipschutz asks about some of the activities: "The key question is: Can all of these efforts, taken together, substitute completely for international agreements on environmental cooperation? No, but it is possible that they can form the basis for systems of implementation of those agreements."³⁴⁵

Advocating participatory treaty making in a world of billions of people may sound unrealistic. It is clear that some daunting challenges to this model exist for some international [33 ELR 10424] environmental goals. In confronting problems that affect hundreds of nations, using different languages, accepting responsibility differentially, emphasizing drastically different values, in facing a task that requires addressing a large number of issues, effective process models are not obvious. It is not that the Climate Change Secretariat does not know how to structure meetings, negotiations, and interactions to assure cooperative resolution; it is that no one is confident about how to do that for unprecedented environmental problems.

The November 2000 COP of the global climate change regime represented to some a learning process. To others it was a failure. New York Times columnist Andrew Revkin explained a part of the challenge:

Part of the problem was also a cultural rift, negotiators on both sides said. The European Union, where Green Party politics is a driving force, never found a way to compromise with the United States, where the environmental movement is increasingly working with industries to influence change. "It is extremely difficult to negotiate between groups where political cultures are so different," Dominique Voynet, the French Environment Minister and a Green Party member, told the plenary sessions.³⁴⁶

It is clear, however, that interacting with people over time in structured settings entered to achieve a generally accepted outcome is more useful for creating common understandings of how to get to goals (or how to refine them) than, say, having small groups in hierarchical situations dictate ends and means through resort to their own views. The numbers of people who must be influenced are in the tens of thousands. To the extent that all regions wisely use and coordinate resources, meet regularly, focus on leading environmental problems, and mutually choose strategies that can influence behavior, a relatively small percentage of the world population can be significant. "Interaction breeds loyalties both to persons and more often to causes that may transcend a particular representative's instructions and especially the vaguely expressed directives that emanate from most governments in respect of international political enterprises far from home."³⁴⁷

Conversely, small numbers of powerful actors who choose not to participate in law making can seriously counter environmental protection. The global climate treaty and the treaty on the international banning of land mines are important illustrations. Realpolitik analyses consider these efforts weak in the face of U.S. refusal to engage actively. For some law challenges it remains an open question whether progress is possible without a reorientation of a treaty-making style that aims to impose and persuade rather than to cooperate and create.

Command and Control and Regulatory Systems

There remains a selective, customized role for regulatory systems. Global Environment Outlook concluded that one form, called command-and-control standards in domestic settings, is "effective in many cases in terms of short-term environmental improvements," although costs of implementation, enforcement, and compliance are high and may hinder economic development.³⁴⁸ Although such policies have proven effective for pollution control, they are less useful for resolution of problems associated with management, protection, and conservation of natural resources, "particularly when a large number of different groups and people use these resources."³⁴⁹ Part of the reason the applicability of command and control is seen as limited is that environmental issues are said to have developed from "simple (local, attributable, quantifiable, easy-to-solve, low-risk, and with short time horizons) to complex (global, non-attributable, non-quantifiable, difficult-to-solve, high-risk, and with long time frames."³⁵⁰ The comparison may be too stark and incomplete, but this conclusion (simple to complex) is useful for sorting out the approaches that work under specified conditions and for specified environmental problems. Many environmental problems in the past clearly were high risk and had long time horizons measured by environmental impact perseverance. Also, some were not easily attributable; witness the morass in assigning liability under the U.S. Superfund law. It serves little purpose to say that today's environmental problems are nonattributable. They are not all attributable to the same sources, but attribution can be made.³⁵¹ Further, many of the problems to be addressed manifest themselves not globally but in transboundary and regional contexts.

Mainstream regulatory efforts have long histories in domestic settings and in a few international settings.³⁵² They provide certain advantages in selective and strategic applications where states have sufficiently agreed on objectives. As George Downs and his colleagues remind us, we know quite a bit about the impact of enforcement coupled with managerial variables such as transparency. They contrast this knowledge with "ideas and relative prices," which are not well-specified strategies that direct policymakers to ways to increase compliance. "We know relatively little about how to use ideas to change preferences about discount rates, consumption versus savings, or the environment."³⁵³

One must look critically at the wholesale rejection of regulatory approaches. Where do they originate? To what are they compared? They arise in part from frustration with implementation, but implementation is often attempted by agencies that have excessive mandates and limited resources. Problems are not always inherent in the strategy itself. Sometimes command and control is theoretically contrasted with economic incentives, self-regulatory activities, environmental management, and managerial thinking, which have limited histories and lack evaluation with real world complexity.

Certain international problems cannot avoid regulatory solutions. Ozone depletion and species extinction would not have lessened without rules and sanctions. Should the dominant understanding of the causes and controls of climate [33 ELR 10425] change continue, a greater commitment to a regulatory regime seems inevitable. Some nations will adopt self-controlling rules without the need for supranational requirements, but others will not. External pressure will be necessary, including providing national leaders with support for a decision that (although essential) is unpopular domestically.

Even in a climate stabilization system characterized primarily by flexibility mechanisms, market force, and trading, there remains a need for some kinds of sanctions and liability rules if reports on greenhouse gas emission reductions are not accurate.³⁵⁴ Other initiatives include requiring signatories to enforce effectively their environmental laws that already regulate carbon emissions or to pursue vigorously regulatory strategies provided for but not yet implemented in domestic law.

Whether typified as regulatory or otherwise, there is a need to clarify several elements of the system for climate stabilization. We must still determine time tables, further define terms (What is a forest? Under what circumstances does it qualify as a sink?), decide percentages of commitments that can be met by alternative means, and determine who will monitor and certify emissions reductions. Finally, however characterized, rates for taxation strategies must be established, monitoring must be done, and penalties must be assessed for failure to pay.

Certainly reliance on centralized top-down control, including through a supranational authority, should be limited. Sir Crispin Tickell, a former ambassador to the United Nations from the United Kingdom, foresaw a world police force operating under the authority of the Security Council "to compel environmental rectitude," although he concedes that the thought "is somewhat distasteful."³⁵⁵ It also is highly unrealistic and fraught with serious problems of value differences and implementation challenges and should not be a part of a regulatory model. In 1989 at The Hague, the prime ministers of France, Holland, and Norway suggested considering the creation of a world environmental legislative body to draw up global regulations and impose sanctions on noncompliers. The idea did not go forward because most governments were unwilling to cede important sovereign powers. Even the sponsoring nations were confident they would never have to be bound by their own ideas.³⁵⁶ There may be extremely exceptional circumstances that justify suggestions such as Philip Shabecoff's:

Military forces may increasingly be deployed to defend global security. Not only would the military engage in a precautionary role of monitoring and research but could also be called on to carry out its traditional "coercive" function to protect the global commons from destruction and to enforce international environmental treaties.³⁵⁷

Rare, indeed, are scenarios that indicate the latter actions.

An international environmental agency within the United Nations with power and authority along the lines of the International Labor Organization has also been proposed.³⁵⁸ It would rule in a super treaty system that sets environmental standards of international applicability by a two-thirds majority, and it would promote compliance. In light of the considerable power of trade and commercial enterprises, including the WTO, the proposal has some appeal. A world environmental organization could balance the excessive focus on progress measured in narrowly defined economic terms and seen as mainly linked to free trade. It could have substantial symbolic value, much like a constitutional provision for environmental protection in a domestic legal system. It could bring environmental interests nearer to an equal footing with commercial interests.

Such an organization, however, could not be effective until a consensus develops about its need, including recognition that the benefits of trade must be put into a context of localized costs. Second, it might well mushroom into a large bureaucracy that would operate heavily according to narrow political considerations, as many other international organizations do. Once established, it likely would not be sufficiently funded. This treatment would further erode the credibility of international environmental law. Furthermore, conflict with evolving and fragile but promising regional bodies is probable. A major question is what would be included and what would be outside the jurisdiction and subject matter of the organization. The parallel but much less ambitious environmental regime, the NAFTA CEC, in excluding several significant enterprises from the definition of environment, disappointed many initial supporters.

Command, Control, and Enforcement

The question of how compliance with the regime is to be fostered remains, whatever strategy is emphasized. Means range widely. They include domestic NGOs empowered to hold governments accountable for their actions or inactions, trade measures, citizen submission processes, direct private actor liability with subsidiary state liability invoked when a private operator cannot meet the obligation, financial guarantees such as bond posting, an international claims commission, procedural rules developed to ease barriers to effective enforcement, alternative dispute resolution techniques, and (in very limited settings) mandated criminal sanctions.

Focusing first on the most draconian choice, criminal sanctions have only a very circumscribed role in international environmental law. Nonetheless, a recognizable history of its consideration and advocacy exists. A major U.N. effort resulted in several research reports and a request to the Secretary General. This encouraged the incorporation, where appropriate, of international environmental law provisions by which states would be expected to enact sanctions under national criminal law and to examine the possibilities "of further harmonization of the provisions of existing international instruments entailing penal sanctions under national criminal law."³⁵⁹

Many environmental conventions include penal provisions.³⁶⁰ Some, such as the Basel Convention, require Parties to take appropriate measures to ensure the application and the punishment of infractions. A second type, exemplified by the Convention for the Preservation of Fur [33 ELR 10426] Seals in the North Pacific, requires Parties to enact and enforce necessary legislation to make effective the provisions "with appropriate penalties for violation."³⁶¹ A third type makes violations punishable under national law. The Convention on the Physical Protection of Nuclear Materials is an example. A fourth approach focuses on legislation and other measures necessary "for the purpose of giving effect" to the agreement. There are also numerous bilateral, regional, and multilateral agreements of this kind, including a 1973 agreement to protect polar bears.³⁶² The Convention on the Protection of the Environment Through Criminal Law of the Council of Europe would obligate signatories to impose financial sanctions or imprisonment for illegal movements of hazardous waste and would apply extraterritorially. Nonetheless, few examples can be found of actual use of criminal sanctions outside domestic law, and there is no international environmental community that is a pressure group for criminal law enforcement.

Some hope to create an international criminal forum. In 1998, the U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (the Rome Conference) adopted the Rome Statute of the International Criminal Court. The statute's preamble affirmed "that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation."³⁶³ Article 1 established an International Criminal Court at The Hague that "may exercise its functions and powers … on the territory of any State Party and, by special agreement, on the territory of any other State."³⁶⁴

Crimes within the jurisdiction of the court are limited to the most serious international offenses, such as genocide. War crimes for which the court has jurisdiction include, as relevant to the environment, "extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly" and

intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.³⁶⁵

Among the laws that the court will consult are applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict. In certain circumstances it will also apply general principles of law derived by the court from national legal systems, including, as appropriate, the laws of states that would normally exercise jurisdiction over the crime. This language could encompass domestic environmental crime statutes.

Certainly, some actions merit response with criminal sanctions. The application of penal law philosophically and from a policy perspective needs to be treated seriously for general deterrence purposes in cases of repeated violations.

The symbolic value of the criminal sanction can be immense. As it does at the domestic level, it can communicate the importance to the international community of deliberate destruction of environmental resources. It can set out lines beyond which no civilized nation or one of its constituent entities or one of its residents can go. One such line is in the draft articles of the International Law Commission, which includes criminal responsibility for "a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment."³⁶⁶ Another factor equates serious deliberate environmental degradation with a violation of human rights. In the human rights sphere, there is close to consensus that criminal sanctions are appropriate for punishment of violations.

Use of the criminal sanction internationally must be viewed with very modest expectations. Among the few instances where international law has resorted to criminal sanctions, only a small number have been successful. In certain limited circumstances the world community can mobilize itself to locate alleged perpetrators of heinous international environmental crimes, achieve jurisdiction over them, subject them to fair and impartial trials, and apply meaningful criminal sanctions if the accused are found guilty. Strategies should be contextual. For deliberate destructive actions aimed at securing an unfair advantage or at meeting a military strategic objective, resort to a seated or an hoc criminal tribunal is merited. But those conditions will be rare.

For other enforcement goals, continued movement toward civil liability is more advisable. There have been some promising steps. UNEP encourages states to develop a civil liability regime. The 1982 Jeddah Regional Convention on the Protection of the Red Sea and the Gulf of Aden Environment introduced its consideration. The Law of the Sea Convention has gone perhaps as far as any international instrument in this area:

With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, States shall cooperate in the implementation of existing international law and the further development of international law relating to responsibility and liability for the assessment of and compensation for damage and the settlement of related disputes, as well as, where appropriate, development of criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds.³⁶⁷

In 1997 the Institute of International Law adopted a resolution declaring that the "breach of an obligation of environmental protection established under international law engages responsibility of the State (international responsibility), entailing as a consequence the obligation to reestablish the original position or to pay compensation."³⁶⁸ It called for [33 ELR 10427] environmental regimes to "include specific rules on responsibility and liability" and "strict liability of operators as the normal standard."³⁶⁹

Once adequate substantive liability rules are put into law, they must be accessible. In 1960 the Paris Convention and in 1963 the Vienna Convention required victims of nuclear damage to make claims in fora extremely far from the point of damage. By their terms they do not clearly allow for claims for environmental damage, although increased acceptance of that view has been noted.³⁷⁰ In the Bhopal disaster, releases of a toxic chemical from a Union Carbide factory in India led to the death of thousands and injury to hundreds of thousands. There legal liability and access to justice were problems in India and the United States.

In general, movement toward a more formal understanding of the responsibilities of nations and the private sector adds an element of seriousness to the statements countries sign about the environment. Required is:

The establishment of procedural safeguards, presumptions, rules of evidence and interpretation which define the legal process, including the notions of fault, account-ability and blameworthiness …. Such settlement may be weak in that there are no police to enforce it. But as it inevitably creates a norm (instead of applying one) …. A plea that X is depleting the ozone layer may be legally less effective than a plea that, in so doing, X is not only depleting the ozone layer but also, being in breach of the 1985 Vienna Convention on the Ozone Layer, is in breach of the general international law of treaties and of its cardinal principle of pacta sunt servanda.³⁷¹

Hortatory approaches to increase compliance also deserve further use. These small steps can have a greater potential to be effective in certain circumstances than that of sanctioning efforts. For example, if a member of the International Labor Organization fails to carry out a recommendation of the commission, the International Labor Conference may take any action "it may deem wise and expedient to secure compliance therewith." Reports may be required from the members and examined by a committee of experts. The experts may note with "concern" or "regret" the implementation status of a country. Annually, a committee of standards may single out serious cases of noncompliance or violation. This negative publicity holds promise for improving the behavior of a member state—and even a nonmember state.³⁷²

Hortatory statements when emphasized by respected spokespeople or energetic diplomats can also make a difference in the world's reactions to suggested legal reforms. The leadership styles of Tolba of UNEP and Strong are effective. Personality cannot be cloned, but it is worthwhile to seek and to support committed leaders who prioritize compliance with international agreements. Persistence and charisma effects generalize to the largest global arenas.

NGO Involvement

A proper role for NGOs must be created, but what status should NGOs be granted in negotiating treaties and in meetings of the Parties?³⁷³ How formal a role in implementation should they assume? The amount of authority given to non-official actors is an important international policy matter.

Since citizen participation became widespread in the 1960s in the war on poverty in the United States, it has become a goal impossible to deny. It has meant creating roles for individuals and groups who do not have official governmental positions so that they can become involved in decisionmaking. Citizens engage in activities ranging from commenting in public hearings to serving on committees that have specified governmental authority. Examples of the use and misuse of this approach are legion in both the social and environmental movements.

In the newer generation of activities, organized private citizens with interests in the international environment and NGOs or environmental NGOs have places at the table with negotiators and decisionmakers. They (1) advise representatives to treaty making in written and verbal forms, (2) introduce scientific background materials, and (3) engage dispute resolution processes by bringing actions against Parties or entities within Parties for failure to meet the objectives of a treaty.

Unofficial actors may help official representatives recognize and build on innovative strategies for policy development and implementation. They may be active locally in suggesting and implementing policies that are state treaty responsibilities. They may influence green attitudes toward risky behavior and promote consumer practices that enhance the viability of legal instruments.³⁷⁴ NGOs may offer examples for national and international action. Greenpeace and other environmental NGOs have for several decades suggested policies outside the boundaries of official national positions, but they are influential in making countries' positions more environmentally aggressive. Internal politics may constrain the stances taken by nation-states at international meetings. Politics may be short-term and shortsighted and not representative of even the subject country's interests. The posture of the United States during the Earth Summit negotiations was a "textbook illustration that the realpolitik that motivates participants in international negotiations is not necessarily or even usually the interests of their nation. Their positions are frequently driven instead by the narrow and immediate partisan political needs of whoever is in power."³⁷⁵ NGOs can take positions that transcend the routine output of individual administrations. They can also be a force to prevent backsliding by a nation-state, to counter its free-riding (benefitting from a multilateral agreement that it does not support), and to expose instances of noncompliance.³⁷⁶

[33 ELR 10428]

NGOs have played important roles in several international spheres. At the Rio meeting, their presence was invaluable for realizing elements of an agenda that some states had characterized as too aggressive. Organizations active at Rio were the Third World Network and the Environmental Liaison Center for the developing-country NGOs, the U.S. Citizens Network, the Consortium for Action to Protect the Earth, Friends of the Earth, the Sierra Club, the Environmental Defense Fund, the Natural Resources Defense Council, the National Wildlife Federation, the National Audubon Society, the European Environment Bureau, and the Congress of NGOs (which has United Nations consultative status).³⁷⁷ NGOs were visible and involved in negotiations for the Montreal Protocol in a way modeled on CITES, which strongly endorses their participation. At the global climate change COP, NGOs from all over the world are advocating positions and providing assessments of scientific information and recommended strategies. They number in the hundreds, and there is a rational process for their recognition. Officially under the regime, the COP or the Secretariat can utilize NGO services, cooperation, and information,³⁷⁸ admit NGOs to sessions,³⁷⁹ engage "legal entities" to work on emission reduction programs,³⁸⁰ and coordinate expert review teams that include NGO representatives.³⁸¹ NGOs can comment on the scientific basis for a recommendation. They sit as observers of all open meetings at the conference and have regular contact, including in environmental NGO briefings.

The Land Mines Treaty is another example of effective NGO involvement. Among the factors linked to success of this initiative (in addition to clearly specified deadlines and outcomes realizable in a reasonable period of time) was the strategic coalition of nongovernmental groups that came together with national entities; they undertook a campaignstyle diplomacy that overcame the staid diplomatic resistance of some states.

NGOs can contribute distinctive skills and resources that promote international cooperation, and they may enhance the abilities of states to regulate globally,³⁸² but the

long-term effects of NGO participation on the international system are not clear. Wider participation is not an unmitigated good. While NGO participation eases political pressures (often from the same groups) and enhances the ability of states to create and maintain international regulatory rules, such participation brings with it dangers of capture, missed opportunities, and slower, more complex negotiations.³⁸³

In short, for environmental law making, "civil society is not inherently 'good' and state power 'bad.'"³⁸⁴

Several other caveats exist. NGO participation usually heightens influence of the developed nations to the further disadvantage of the Third World. Purely logistically the large numbers of NGOs may be difficult to accommodate. Where not prohibitively numerous, NGO commentary may be irrelevant or it may displace useful negotiation by states. Accommodating numerous NGO positions may result in "least common denominator" policy positions or harmonization downward of international rules.³⁸⁵ Sometimes NGO presence does not add fresh and necessary perspectives; rather, certain NGOs exist for exclusionary or nationalistic purposes. Others, especially in regions with immense competition for limited external resources, work mainly to promote their own goals. They may, as in the Caspian Sea region, effect a "negative civil society" that is no more than a "counter-productive welfare program."³⁸⁶ Nearby, BSEP head Laurence Mee stated:

Where are the Black Sea NGOs in all of this? Sadly, their role is often as weak as the governmental agencies. In many cases, they are disconnected from the "grass roots" of society and have become special interest "clubs" of individuals who huddle together shielding themselves from the outside world …. It sometimes surprises me … that so much energy is put into meetings rather than "hands on" activities.³⁸⁷

If international law is to behave more like other law, NGOs should not be decisionmakers. Their views should be solicited, and they should be given adequate time, within reason, to present to official bodies. But NGOs are self-appointed and not necessarily democratically representative, although they must respond to the values and concerns of their members. They should not be able to bootstrap themselves into positions filled by people who must meet the stringent appointment and review processes of international law. Where NGOs promote interests not otherwise represented, however, their roles in treaty making and implementation should be more central and stronger. Third parties can legitimately and effectively represent the interests of nature and its species. Although details remain as to who should be chosen to represent, these can be addressed, as Stone has attempted to do in his call to establish a system of guardians to defend the global commons.³⁸⁸

NGOs played an appropriate role during discussions of the Montreal Protocol. The protocol was negotiated under a "polycentric model of decision making."³⁸⁹ "Environmentalists, scientists, corporate executives, and other outside interests, including the media, were integral parts of the process, pressing their own points of view … a more open, democratized diplomacy, vastly different from the diplomacy of traditional realpolitik."³⁹⁰

NGOs can also be influential in decisions not to participate, as they were in response to a 1999 invitation by the OECD to discuss exemptions of certain waste shipments from the Basel Convention. They reasoned that by being involved [33 ELR 10429] they would be a part of a process undermining the Basel waste trade ban.³⁹¹

Finally, international law can promote productive activities among NGOs, even if these are only of an advisory nature. Just as collaboration among nation-state representatives fosters appreciation of strongly held, but previously not understood, positions of other nations, NGO interactions can foster understandings needed to create and implement international law. Models include formal government-funded groups, such as the Joint Public Advisory Committee of the CEC, and more informal processes, such as that associated with the Black Sea Environmental Program or Yellowstone to Yukon program.³⁹²

EIA

EIA should be undertaken at several steps of regime creation. International circumstances are sufficiently distinctive to merit advocacy of analysis of proposed projects that can have a major environmental effect, despite deserved criticisms in regard to domestic law use.

Some critics consider EIA to be overly focused on process, to give to citizens the appearance of involvement in decision making while limiting their actual substantive influence, to be expensive, and to be insufficiently controlled to be actually influential. However, influencing decision-makers through information presentation, turning a focus to environmentally controversial projects, calling attention to the differential environmental effects of projects across boundaries, and adding new sources of data to the decision-making record are important functions. EIA can channel discussion of highly charged international issues into manageable fora. President Clinton's November 1999 Executive Order, requiring environmental review of proposed trade agreements, is an example.³⁹³ Written reviews, undertaken early in both bilateral and multilateral negotiations, were to be monitored by both the Council on Environmental Quality and the Office of the U.S. Trade Representative and made widely available for public comment.³⁹⁴ The World Bank's attempts to address environmental impacts associated with its lending is another step toward making the bank's actions more transparent and thus more subject to evaluation.³⁹⁵

Some scholars conclude that EIA is already an element of customary international law,³⁹⁶ and regional impact assessment regimes exist in a small number of settings.³⁹⁷ Experiences with EIA in the Economic Commission for Europe, the OECD, the EC, and the NAAEC have been promising. The analytical framework for the latter was developed collaboratively by the Parties, subjected to rigorous expert review, and customized to make application realistic. It is being applied progressively to various environmental stressors. The concept has been adopted in the Protocol on Environmental Protection to the Antarctic Treaty³⁹⁸ and is the subject of the Convention on Environmental Impact Assessment in a Transboundary Context, done at Espo, Finland, in 1991.³⁹⁹ That treaty would require each Party to establish an EIA process that permits public participation, to undertake an EIA for listed projects that are likely to have adverse transboundary impacts, and to notify affected Parties of proposed activities. Conversely, the climate change regime fails to undertake adequate environmental impact assessment of proposed policy choices.⁴⁰⁰ Needed is more assessment of policy alternatives, including technology-based approaches and those based on new economic and ecological strategies.

Guidelines that parallel those developed by nation-states are necessary: what is a major action that affects the quality of the regional or world environment? It is also necessary to alter the rules "widely provided" that the state proposing is the only determinor of the likelihood or seriousness of adverse impact and that the conclusion of the source state is final.⁴⁰¹ Broad access to the creation of the assessments and broad dissemination of results, including to the public, should be provided. To build a strong EIA process internationally, other questions need to be considered,⁴⁰² but they do not raise insurmountable negotiating issues.

EIA procedures and knowledge-based strategies build on the public's right to know and to have access to relevant information about environmental issues that affect it. The embryonic Aarhus Convention holds some promise. Aarhus provides as its objective:

In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.⁴⁰³

The recommendation of more widespread use of environmental impact analysis reemphasizes the obligation of countries to consult when they are considering major actions that can have substantial environmental effects across borders.

Secretariat Design

Administrative entities for multilateral environmental agreements (MEAs) must be custom designed to help solve specific global environmental problems. Ultimately law, domestic or international, is implemented by organizations created by legislation or treaties, funded and staffed by political actors. A focus on institutional characteristics is essential for effective international environmental law. Proper [33 ELR 10430] design avoids excessive routinization of international law, an outcome that has taken place in some national environmental agencies. At the same time it is also important to provide for needed processes and standard operating procedures. Some routine is necessary for law to achieve credibility. Without predictability there will be very little trust in a new international entity.

One element of design is the size of international institutions; this dimension has been addressed in relationship to performance. Largeness does not necessarily indicate waste, inefficiency, mismanagement, and corruption, as developed countries have often said about the United Nations. The developing countries have raised similar concerns about the Bretton Woods organizations: the World Bank, the International Monetary Fund, and the former GATT.⁴⁰⁴ At times, however, size does correlate with complacency and inflated rhetoric about improving environmental quality. Environmental law's agents, as any other type of growing human enterprise, should be subjected to systematic analysis and evaluation.

Another issue in organizational development is whether integration or differentiation best reaches stated goals. Some analysts advocate secretariats that administer multiple environmental treaties. Except, for example, with the integrated Law of the Sea negotiations, international environmental agreements have generally followed a pattern of differentiation that has provided flexibility and efficiency. One cost of organizational differentiation is absence of coordination and treaty congestion. Helen Sjoberg suggests, however:

Should the Conventions decide to use the GEF as an integrated financial mechanism for global environmental problems, the contours of an entirely new type of regime emerge …. A regime established along these lines preserves the flexibility that has been the hallmark both of the process whereby legal agreements have been created and the evolution of the GEF. Rather than create a formal organization, this regime is more decentralized and builds on linkages between units with different purposes. Its design is in line with findings in organizational theory which suggest that while a hierarchical model works well in a stable environment, an organic and decentralized form is most appropriate in areas and times of change.⁴⁰⁵

GEF itself may be a controversial choice. Many nations consider its priorities narrow or biased toward the West. In any event, further consideration of a 1991 UNEP recommendation on coordination is merited. Enhancing policy clarity and consistency is one goal, but there are others. The UNEP director proposed the creation of an intersecretariat coordinating committee to promote more effective monitoring and information dissemination, including through reports on means of improving verification activities. Also suggested was establishing monitoring systems even where agreements do not call for them. This idea was deferred and has limited application to instruments initiated through the United Nations, but it is a relatively unpromising means of increasing knowledge about implementation of international law.⁴⁰⁶

The suggestion that secretariats should be merged and that functions should be integrated across environmental treaties comes from conclusions that some secretariats are working at cross-purposes with others, that efficiencies in allocation and use of financial resources can be achieved with integration, and that learning about systemic elements of international environmental degradation can be fostered by proximity of staffs and scientific advisors and consultants. Oil pollution's effects, fisheries knowledge, seabed resource exploitation, and conservation should be considered as one challenge, not as independent phenomena.

In theory, the suggestion is persuasive; however, a few secretariats are sufficiently successful (such as that of the Montreal Protocol) that to require a change in direction would jeopardize further progress. Moreover, the science needs to be improved before organizations are merged on the basis of understandings of the synergies in environmental degradation and repair, such as between climate change and ozone depletion. Finally, efficiencies linked to integration of functions may best come with new ideas for secretariats; otherwise there may be a tendency to duplicate, rather than to streamline organizational elements. Pluralism and competition are healthy in this early period of international environmental law and policy.

When a secretariat is professional and fair and is moving the global environmental agenda, its authority should be enhanced. This is the case, for example, with the CEC. Because of the need for political oversight, strengthening should be subject to a periodic review at the ministerial level with the default on failure to evaluate being continuation of the authority. Strengthening a secretariat involves, as for the United Nations generally, providing for a professional, independent, and motivated staff and adequate independent financing that will reduce dependence on major donors.⁴⁰⁷

In secretariat design a balance must be struck between the public's right to know and incentives to encourage national cooperation to assure that data supplied to meet treaty goals are protected. The FCCC adequately addresses this concern in Article 12. The aim of some reforms is to assure that information exchange is full, open, and prompt, but secretariats must earn the reliance that nation-states put on them to care properly for sensitive and proprietary information.⁴⁰⁸

Although a single world environmental organization is not useful, international environmental law can be strengthened [33 ELR 10431] by organizational improvements. Existing secretariats, part of a regime of law, need to convert their missions to concrete actions that address environmental quality. To do so, several secretariat characteristics are important. Flexibility in responding to environmental problems and to changing information is high on the list. Perceived legitimacy of the secretariat is important—by those who must be managed whether they be nations, oil companies, farmers, tourists, or ordinary daily consumers of environmentally sensitive products. Openness to public input and transparency of decisionmaking are significant attributes. Operational capability (the wherewithal, in human and economic terms, to carry out a program) is essential as well. Without those resources the best designs can be stymied. Good professionals without considerable financial resources are more effective overall than inexpert professionals with flush resources. Ultimately, given the immense challenges of cleaning world oceans, stopping global warming, saving endangered species, and preventing waterborne environmental health disasters, both accomplished people and considerable funds are necessary.

Creating effective secretariats admittedly is a tall order. Limitations and gaps are typically not the fault of staff or a function of mistakes in design. The issue is much larger than individual personalities or elements of organizational structure.

Effective models are not known for confronting challenges that affect hundreds of nations, using different languages, accepting responsibility differentially, emphasizing drastically different values, in facing a task that requires addressing multiple issues. To be sure, theorists have offered approaches to dealing with uncertainties, ambiguities, knowledge gaps, varying risk assessments, and other characteristics of complex problems. They speak of "future-responsive-societal-learning"⁴⁰⁹ and transactive management. As recommended earlier, some of these strategies need to be tried, but there is little empirical review of them, and as Italian Nobel Prize winner Carlo Rubbia noted: "There is not a mature decision-making structure that is capable of governing global environmental emergencies, to make decisions in the interests of all."⁴¹⁰

A focus related to organizational design is on the growth of the international law itself. No doubt there will be discoveries and realizations that call for new international laws. POPs is a recent example. But the international community needs to attend to making existing laws effective, to improving them, and to coordinating their implementation. Brown Weiss focuses on administrative, monitoring, and financial provisions.⁴¹¹ She rightly says that it is time to slow the rate of negotiating international agreements, since resources needed to engage in global environmental diplomacy are burdening developing countries. The effective implementation of agreements already concluded is a priority, presaging greater reliance on soft law.

Treaty development is best facilitated after further work generates at least general agreement on priority problems. The field of biodiversity protection is both an example and a metaphor. Scientists have identified about two dozen areas, from California to the Caucasus, that they label hot spots for native species protection. These are defined, among other characteristics, as places with 1,500 or at least 1/2% of the world's 300,000 plant species as native.⁴¹² Focusing efforts, including international legal efforts, on these areas makes the biodiversity crisis more manageable and may be preferred policy. Conversely, if the hot spots degrade further, a large proportion of global biodiversity will be lost regardless of success elsewhere.⁴¹³ Protecting vertebrate and plant species is also said to protect insects and invertebrates.

Selectivity is attractive (perhaps essential) and generalizes theoretically to other foci of international environmental law. This idea must be analyzed critically, however. It can be abused to promote unneeded development, and it can create international environmental injustice if hot spots tend to be found only in certain regions.

Incentives for Cooperation

Most efforts at implementing international environmental law, whether generated by top-down or participatory mechanisms, benefit from the strategic use of economic and other incentives. These are of several types: subsidies, direct payments, loans, taxes, innovative trading schemes, transfers, and innovative interpretations of global property rights.

Global Environment Outlook 2000 points to a number of successes with their application at the regional level. Reporting obligations under the Montreal Protocol were met much more commonly after financial assistance was given to developing countries.⁴¹⁴ The number of Parties providing data rose to 73, well above the 18 that had reported by 1992. EU law provides several incentives to promote cooperative movement toward environmental goals.⁴¹⁵ Elsewhere, the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, the Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution, and the Cartagena Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region offer new ideas on technology transfer and technical assistance for developing countries. They address the terms under which transfer is to take place, the role of patent and other intellectual property rights, and innovative development and enhancement of endogenous technologies of developing countries.⁴¹⁶

[33 ELR 10432]

A fully functioning environmental protection regime that exploits economic forces requires some changes in international property law under which it is now difficult to establish and protect rights. It will be necessary in climate change and in other areas of international commons regulation to develop structures to facilitate the exchange of rights in order to enforce rights.⁴¹⁷ The more difficult a problem is to comprehend and the broader the spread of harm, however, the more difficult it is to internalize externalities (a fundamental property goal) and to achieve collective action.⁴¹⁸ Thus environmental law and policy experts should emphasize incentives and property concepts that foster environmental improvements and technology transfer. Environmental education (including preambles to policy instruments) should recognize that developed countries are polluting out of proportion to their numbers, violating fundamental but not yet legally recognized property notions. Relevant is Garrett Hardin's conclusion about commons properties: for certain problems "mutual coercion mutually agreed upon" is essential. Customary law also provides that the "principle of permanent sovereignty over natural resources requires each state to respect all other states in the use of their natural resources, which inherently includes the obligation not to cause transboundary pollution."⁴¹⁹

When the task is clear and depends less on major policy concerns of a state than on availability of resources, direct economic assistance is reasonable. Dependence on incentives, however, can communicate that nations have an obligation to comply with international environmental standards only if they are subsidized. Incentives without greater involvement in attempts to build capacity in developing countries can be counterproductive. The funding commitments in the Montreal Protocol, the FCCC, and the Biodiversity Convention are narrow means of capacity-building. Attempts to increase the number, strength, competence, and constellation of governmental and NGO actions; to make relevant information more available; and to foster institutional relationships are superior. "True capacity-building involves a reconfiguration of political, economic, and social institutions; in some cases, it may even require these institutions to be created outright."⁴²⁰

Some environmentalists do not accept that the less developed countries must be subsidized for movement toward environmental protection; development patterns of the industrialized nations are not an entitlement of all nations. In fact, some say, they were a mistake. What is needed is not a guilt-ridden policy that fosters further global destruction; rather, programs should admit the failures of the past and move forward both in the first and third worlds with less destructive consumer and development patterns. Incentives, subsidies, and technology should nonetheless be made available through international legal instruments. There is some possibility that replication of destructive patterns will occur, but the next generation of international environmental protection must be aware of the limitations of law to influence behaviors that are among the most fundamental of the species. If Third World countries are forced to choose between economic development and environment, the economy will prevail. Movement in the direction of enhanced protection can come only through realistic steps that recognize a politics that is not driven (in the absence of egregious environmental disasters) by environmental concerns alone. Thus subsidies and other incentives should be parts of treaties. In return, the treaties should create expectations of increased contributions by the south and be contingent on measurable progress by those nations.⁴²¹

[33 ELR 10433]

Trade Sanctions

Powerful forces of the market should be recognized in creating and implementing MEAs. The relationship between economics and international environmental stewardship is nowhere more important than in consideration of the use of trade sanctions. They are implicated in global environmental law in two critical ways. Trade sanctions may be employed to reach environmental objectives (trade-related environmental measures (TREMs)), and they are employed in trade agreements to punish alleged misuse of environmental law.

At least 20 treaties authorize some form of trade sanction to influence Members. CITES is based centrally on regulation of trade of protected species. It also provides that Parties may adopt stricter measures regarding conditions of trade of species, both included in its appendices and not so included.⁴²² The provisions of CITES do not affect domestic measures or treaty obligations "relating to other aspects of trade," including those that address public health and other matters.⁴²³ The convention does not affect regional actions that maintain or remove customs control insofar as they relate to trade among the region's Members.⁴²⁴ The Montreal Protocol penalizes Nonparties by placing restrictions on their access to foreign markets. Noncompliance with prior informed consent requirements of the Basel Convention can lead to a ban on the importation of hazardous wastes. Other important environmental agreements with trade provisions are the Convention on Biological Diversity,⁴²⁵ the FCCC,⁴²⁶ the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade,⁴²⁷ and the Cartagena Protocol on Biosafety.⁴²⁸ Despite these potential sources of trade sanctions, the United Nations reported at the end of 1999 that "fortunately, no formal dispute has yet occurred in the WTO over the use of trade measures contained in multilateral environmental agreements."⁴²⁹

Domestic law also may authorize trade sanctions. Under the 1971 Pelly Amendment to the Fishermen's Protective Act of 1967, the United States may use sanctions for environmental violations of exporting countries.⁴³⁰ Under the 1979 Packwood-Magnuson Amendment to the Fishery Conservation and Management Act of 1976, the U.S. Secretary of State must reduce a foreign state's fishing quotas in U.S.-controlled zones if the Secretary of Commerce certifies that the state is engaged in actions that diminish the effectiveness of the International Convention for the Regulation of Whaling.⁴³¹ Without the threatened use of trade sanctions by the United States to enforce compliance with the U.N. resolution on high-seas driftnet fishing, Japan, South Korea, and Taiwan likely would not have stopped their destructive activities.⁴³²

TREMs may directly affect violating companies. Trade bans jeopardize a firm's capacity to do business abroad. Limitation of access to major markets is a severe penalty for companies, which communicate their concerns to their governments. TREMs are controversial, however. Even if adopted, the question arises whether the penalty would actually be imposed, as opposed to becoming a symbol of a larger international relations disagreement. If imposed, the measure may not always influence actions of the noncomplying state in the direction desired. An unintended consequence is to solidify opposition to other parts of an MEA.

Trade sanctions can also work at odds with environmental law. In some situations (such as GATT, its successor institution the WTO, and NAFTA), sanctions may be imposed if environmental standards are considered discriminatory trading behavior. A trading partner may allege that the environmental action is a disguised barrier to free trade, or an investor from one Party can submit a claim that a putative environmental measure is a protectionist act or even an expropriation.⁴³³ This may have a chilling effect on lawmakers, inhibiting them from incorporating regulatory measures and other instruments. If the challenger prevails, environmental controls may need to be lifted or the challenging Party compensated.

The Charter of the International Trade Organization, which was to provide the institutional home for GATT but never entered into force, specifically allowed countries to take measures pursuant to an intergovernmental agreement relating to the conservation of fisheries, migratory birds, or wild animals.⁴³⁴ Later the WTO⁴³⁵ did take steps toward the inclusion of environmental protection and sustainable development within the world free-trade regime. For example, in the shrimp-turtles case, Thailand and other nations challenged the United States for imposing import limitations on shrimp from countries that had allegedly inadequate conservation measures for endangered turtles. The WTO's Appellate Body recognized the principle that unilateral measures aimed at environmental protection could be valid, although in that case the United States was initially found to have failed to meet WTO requirements.

The environmental exceptions to the requirement that a law inconsistent with trade rules must be withdrawn or changed are found in Article 20 of GATT. A state wishing to use the exception must justify its use and select the least trade-restrictive measure available to achieve its objectives. Environmentalists assert that the WTO provisions on sanitary and phytosanitary regulations are too narrowly defined, that the Agreement on Technical Barriers to Trade will force [33 ELR 10434] downward harmonization of environmental law, and that WTO dispute settlement procedures are not transparent and do not sufficiently recognize environmental interests.

The NAFTA regime takes some steps but does not go far enough in integrating trade and environmental goals with regard to phytosanitary provisions.⁴³⁶ On food and safety, NAFTA emphasizes the autonomy of each signatory to establish its own sanitary and phytosanitary standards and the right to vary them by region, provided the standards are based on "scientific principles."⁴³⁷ NAFTA Chapter 7 also requires an importer of goods from a less rigidly regulated region to prove with scientific principles that the imported goods meet the safety requirements of the more restrictive region. Other sections of NAFTA⁴³⁸ extend the assurance of autonomy from sanitary and phytosanitary to more general environmental standards. In contrast to the former, other environmental standards need not be justified by scientific principles. NAFTA provides access to formal dispute resolution procedures for certain food and safety and environmental claims. Other articles⁴³⁹ encourage notification and cooperation among the three Parties.

The EU has quite environmentally friendly trade rules. It has well-developed institutions that allow NGO involvement and, based on qualified majority voting, permit nations with strong environmental policies to promote them aggressively in the face of free-trade challenges.⁴⁴⁰ The EU has allowed dozens of actions harmonizing sanitary and phytosanitary measures upward. It permits Member states to ban imports not produced according to EU environmentally sensitive processes and production methods. In certain cases the ban may be mandatory.

The EU serves as an excellent model for future trade-environment agreements. I also recommend establishing objective panels (as objective as they can be in these matters) composed of both trade and environment experts who give their views on the environmental intervention. They can determine, for instance, whether a rule is based on the best available expertise in the environmental sciences. Is it as narrowly applied as possible to achieve its aims? The burden of proof should take into consideration all relevant factors, including the nation's environmental record. In rare situations where conflicts cannot be resolved, resort could be to the environmental chamber of the ICJ.

The link between trade and the environment must put greater emphasis on the environment. In a world where trade regimes now regularly trump environmental concerns, to call for greater coordination and parity between environment and free trade is impotent without a major new commitment of states to create that parity. To make this recommendation meaningful, environmental ministries must be raised to a status comparable to that of trade and commerce. Along the way, changes in international rules on investment may further the environmental agenda; they "could turn out to be the very tool for allowing policy makers to escape their 'prisoner's dilemma' and pave the way for solutions out of the race-to-the-bottom-scenario at the trade-and-environment-interface."⁴⁴¹ Finally, as more world citizens begin to understand trade organizations like the WTO, more balance with nontrade societal goals is needed. Trade law "must be interpreted in light of other rules of public international law."⁴⁴² Specifically the WTO should be pressed to pursue trade goals by emphasizing international negotiation over sanctioning.⁴⁴³

Recommendations in Context

Application of these recommendations must be realistic about the potential for change among international law's many subjects, from the individual to the multinational organization. Patterns that have created global environmental degradation are entrenched and not readily changeable with either encouraging statements or commands without controls and enforcement.

Some degrading actions are rational responses to systems that do not sufficiently charge for violations. Others stem from poverty. As a Mexican environmental planner said:

It is not easy to sell local citizens on a dimly perceived environmental benefit, when the alternative can put food on the poor family's table …. A mature turtle is worth $ 50 to a poacher for its meat, skin, and eggs, and it takes him an hour of work in the cool night air to get one. To earn that much in another way, he'd have to work two weeks at minimum wage harvesting watermelons in the hot sun. What would you prefer?⁴⁴⁴

International environmental law must go beyond adjusting the perceived costs of a violation. It must create benefits of compliance as well.

Recommendations must also address capacity to promote consensus about ownership of global resources. As the tortuous negotiations over the Law of the Sea made clear, agreement on international property rules will not come quickly, but in areas as divergent as demarking zones of territorial control and addressing the effects of deregulation and privatization, understandings of ownership effects can assist a move toward international cooperation.

[33 ELR 10435]

Building on the concept of resources of all humankind, a system is needed to delineate natural resources that are not national resources. Resources—fish, air, water, animals, plant materials—pass back and forth through nations. The early treaties on migratory birds can serve as models. That system will come slowly, and law cannot get too far ahead of prevailing understandings. As an example, customary law of territorial seas with its jurisdictional demarcation for fishing and economic zones fails to take into account that environmental effects occur without regard to that zoning. So, too, transboundary rivers have been subject to customary property law. Even its more progressive doctrine of limited territorial sovereignty does not solve environmental problems, including upstream. Rather, it creates other problems, such as effluents in a limited national area and degradation of the groundwater.

Some advocates of a stronger international property law are clear on what needs to be done. They argue for example that all commonpool freshwater resources (those that cross political boundaries and are subject to externality problems) should be placed under international regulation.⁴⁴⁵ The lakes, rivers, aquifers, and unrelated combined groundwater need to be viewed as international water resources. Recommendations for an evolving global law, however, must realize that major international players are not yet ready to go so far.

Finally, until a major shift occurs in geopolitics, one important element of effective international environmental law will remain absent: binding jurisdiction, the inability to walk away from a legal commitment if a Party chooses not to comply. That major shift is in the balance of power of nations. As long as there are countries who can abide by the rules when they choose but fear no reprisals when they do not, international environmental law will be subject to some of the criticisms with which this book began. Balance of power in modern times, however, is not only a military question. There are many forms of global influence, as the non-hostile fall of the Soviet Union, the dependence of superpowers on resource-rich states, and the adoption of treaties without participation by the United States suggest. Coalition building can create conditions in which environmental law based on the principles articulated above can succeed. To be sure, coalition building can also stymie environmental law.

Verdicts about success of an international environmental law ultimately depend on definitions. Global environmental improvement is certainly a function in some part of international law within the set of all law. Improvement will be variously understood. As we have seen, it can be seen as cooperation aimed at improvements in environmental quality. It may be viewed as creating a learning system among nations with environmental improvement as the goal. It can be defined as consensus resulting in learning that actually leads to objective improvements, though blissful cooperative ignorance and deliberate avoidance of difficult decisions are at least logical alternatives. It can have higher standards: substantial implementation of cooperative mechanisms that result in improvements in the air, water, flora and fauna, and natural resources as measured by commonly accepted indices. From a global perspective it means improvements in all the areas addressed in this book: the world commons, regional challenges, and across borders. If this perspective is realized, law will have played a necessary role.

1. UNITED NATIONS ENVIRONMENT PROGRAMM (UNEP), GLOBAL ENVIRONMENT OUTLOOK 2000, at xvii (1999).

2. Marti Koskenniemi, New Institutions and Procedures for Implementation Control and Reaction, in GREENING INTERNATIONAL INSTITUTIONS 236 (Jacob Werksmann ed., 1996).

3. Id. at 247.

4. Giorgio Gaja, Evoluzione e Tendenze Attuali del Diritto Internazionale Dell' Ambiente (1998) (Remarks presented at Ambiente e Diritto, Florence, Italy, June 11, 1998).

5. Marc Pallemaerts, International Environmental Law From Stockholm to Rio: Back to the Future?, in GREENING INTERNATIONAL LAW 18-19 (Philippe Sands ed., 1993).

6. Agenda 21, U.N. Doc. A/CONF.151.26 (1992) [hereinafter UNCED Agenda 21], available at http://www.un.org/esa/sustdev/agenda21chapter28.htm (last visited Mar. 29, 2002).

7. Stefano Nespor, Environmentalism and the Disaster Strategy, 19 UCLA J. ENVTL. L. & POL'Y 211-30 (2001).

8. John W. Meyer et al., The Structuring of a World Environmental Regime, 1870 to 1990, 51 INT'L ORG. 623, 647 (1997).

9. LARRY E. SUSSKIND, ENVIRONMENTAL DIPLOMACY: NEGOTIATING MORE EFFECTIVE GLOBAL AGREEMENTS 16 (1994).

10. Id. at 29.

11. THE INTERNATIONAL POLITICS OF THE ENVIRONMENT (Andrew Hurrell & Benedict Kingsbury eds., 1992).

12. ENVIRONMENTAL LAW NETWORK INTERNATIONAL, PRACTICAL IMPLICATIONS OF ENVIRONMENTAL LAW PRINCIPLES 2 (1999).

13. Frank Biermann, Land in Sight for Marine Environmentalists? 1 REVUE DE DROIT INT'L, Jan./Feb. 1998, at 35, 46.

14. Gunther Handl, Controlling Implementation and Compliance With International Environmental Commitments: The Rocky Road From Rio, 5 COLO. J. OF INT'L ENVTL. L. & POL'Y 305, 306 (1994).

15. Id. at 306.

16. PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL LAW 1: FRAMEWORKS, STANDARDS, AND IMPLEMENTATION 143-48 (1995).

17. Mar. 3, 1973, 993 U.N.T.S., 12 I.L.M. 1085.

18. Id.

19. Michael J. Kelly, Overcoming Obstacles to the Effective Implementation of International Environmental Agreements, 9 GEO. INT'L ENVTL. L. REV. 447, 448 (1997).

20. Id.; Edith Brown Weiss, International Environmental Law: Contemporary Issues and the Emergence of a New World Order, 81 GEO. L.J. 675-710 (1993).

21. U.S. GENERAL ACCOUNTING OFFICE (GAO), INTERNATIONAL ENVIRONMENT: STRENGTHENING THE IMPLEMENTATION OF ENVIRONMENTAL AGREEMENTS 3-4 (1992) (report to congressional requesters).

22. INTERNATIONAL LAW AND SUSTAINABLE DEVELOPMENT: PAST ACHIEVEMENTS AND FUTURE CHALLENGES 360 (Alan E. Boyle & David Freestone eds., 1999) [hereinafter PAST ACHIEVEMENTS AND FUTURE CHALLENGES].

23. STANLEY JOHNSON & GUY CORCELLE, THE ENVIRONMENTAL POLICY OF THE EUROPEAN COMMUNITIES 340 (1992).

24. SANDS, supra note 16.

25. Stephan Tromans, EC Waste Law: A Complete Mess?, 13 J. ENVTL. L. 133, 156 (2001).

26. Gabriella Kutting, Mediterranean Pollution: International Cooperation and the Control of Pollution From Land-Based Sources, 18 MARINE POL'Y 233, 238 (1994).

27. Id.

28. JOHN CARROLL, INTERNATIONAL ENVIRONMENTAL DIPLOMACY 276 (1988).

29. Catherine Redgwell, Protection of Ecosystems Under International Law: Lessons From Antarctica, in PAST ACHIEVEMENTS AND FUTURE CHALLENGES, supra note 22.

30. Handl, supra note 14, at 307.

31. Helge Ole Bergesen & Trond Botnen, Sustainable Principles or Sustainable Institutions? The Long Way From UNCED to the Commission on Sustainable Development, 1 F. FOR DEV. STUD. 35 (1996).

32. Barnako Convention on the Ban of the Import Into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa, Jan. 30, 1991, 30 I.L.M. 773.

33. William Schneider, The Basel Convention Ban on Hazardous Waste Exports: Paradigm of Efficacy or Exercise in Futility?, 20 SUFFOLK TRANSNAT'L L. REV. 247, 265 (1996).

34. International Convention for the Conservation of Atlantic Tuna, May 14, 1966, 673 U.N.T.S. 63.

35. Patrick A. Nickler, A Tragedy of the Common in Coastal Fisheries: Contending Prescriptions for Conservation, and the Case of the Atlanta Blue Fin Tuna, 26 B.C. ENVTL. AFF. L. REV. 549, 576 (1999).

36. Peter Dauvergne, Globalisation and Deforestation in the Asia-Pacific, 7 ENVTL. POL. 114, 116 (1998).

37. David Humphreys, The Global Politics of Forest Conservations Since the UNCED, 5 ENVTL. POL. 231 (1996).

38. Handl, supra note 14, at 308; UNCED, Agenda 21, supra note 6.

39. Handl, supra note 14, at 308.

40. Id.

41. Humphreys, supra note 37.

42. U.N. Economic Commission for Europe Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991, 30 I.L.M. 802.

43. Phoebe Okowa, Procedural Obligations in International Environmental Agreements, in BRITISH YEARBOOK OF INTERNATIONAL LAW 288 (Ian Brownlie & James Crawford eds., 1997) [hereinafter BRITISH YEARBOOK].

44. Convention on the Early Notification of a Nuclear Accident, Sept. 26, 1986, 25 I.L.M. 1370.

45. Okowa, supra note 43, at 297.

46. Id. at 301.

47. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 33 I.L.M. 1309.

48. Biermann, supra note 13, at 39.

49. Id.

50. W.T. Burke, Importance of the 1982 U.N. Convention on the Law of the Sea and Its Future Development, 27 OCEAN DEV. & INT'L L. 1 (1997).

51. Peter G. Davies & Catherine Redgwell, The International Legal Regulation of Straddling Fish Stocks, in BRITISH YEARBOOK, supra note 43, at 200.

52. Id. at 273.

53. Alan E. Boyle, Dispute Settlement and the Law of the Sea: Problems of Fragmentation and Jurisdiction, 46 INT'L & COMP. L.Q. 37 (1997).

54. See Antarctic Treaty (91980), 402 U.N.T.S. 71; Scientific Committee on Antarctic Research, The Antarctic Treaty System: An Introduction, at http://www.scar.org/Treaty/treaty_.htm Ant. Treaty System (last visited Mar. 17, 2003).

55. GOVERNING THE ANTARCTIC: THE EFFECTIVENESS AND LEGITIMACY OF THE ANTARCTIC TREATY SYSTEM 293 (Olav Stokke Schram & Davor Vidas eds., 1997).

56. PHILIPPE SANDS, GREENING INTERNATIONAL LAW 147 (1993).

57. SUSSKIND, supra note 9, at 17-18.

58. Id. at 17.

59. Nonetheless, Susskind gives "several reasons to be pessimistic about the prospects for achieving the level of cooperation required to manage shared (or common) resources like the ocean, space, Antarctica, the atmosphere, or the diversity of species" Id. at 18. They are the north-south split on these issues, the persistence (he calls it "stubborn") of national sovereignty, and the lack of incentives for nations to bargain.

60. JOSE A. DE YTURRIAGA, THE INTERNATIONAL REGIME OF FISHERIES: FROM UNCLOS 1982 TO THE SEA (1997).

61. WORLD TREATIES FOR THE PROTECTION OF THE ENVIRONMENT 28 (Tullio Scovazzi & Tullio Treves eds., 1992).

62. UNEP, THE GLOBAL ENVIRONMENT OUTLOOK 1997, at 2 (1997) [hereinafter GLOBAL ENVIRONMENT OUTLOOK 1997].

63. Lynton Keith Caldwell, Is World Law an Emerging Reality? Environmental Law in a Transnational World, COLO. J. INT'L ENVTL. L. & POL'Y 1 (1999) (online symposium Jan. 15-30, 1999) (on file with the author).

64. PHILIP SHABECOFF, A NEW NAME FOR PEACE: INTERNATIONAL ENVIRONMENTALISM, SUSTAINABLE DEVELOPMENT, AND DEMOCRACY 116 (1996).

65. ENVIRONMENTAL LAW NETWORK INTERNATIONAL, supra note 12.

66. Bernard Ho Oxman, International Decisions (Gabcikovo-Nagymaros Project), 92 AM. J. OF INT'L L. 273, 278 (1998).

67. Hillary French, From Discord to Accord, 72 NAT'L F. 37 (1992).

68. Others find overall assessment too difficult:

International environmental law is so many-sided that a simple description of its status is impossible. The picture is in fact rather contradictory; in some respects dynamic and innovative; in other respects extremely cautious and conservative. On some issues there have been important achievements; on others a frustrating inertia and even setbacks.

Hans Christian Bugge, International Environmental Law-Status and Challenges, in INTERNATIONAL ENVIRONMENTAL LAW 53 (Hans Christian Bugge & Erling Selvig eds., 1995).

69. CHRSITOPHER STONE, THE GNAT IS OLDER THAN THE MAN: GLOBAL ENVIRONMENT AND HUMAN AGENDA 119-20 (1993).

70. Peter Hough, Stemming the Flow of Poison: The Role of UNEP and the FAO in Regulating the International Trade in Pesticides, 13 INT'L REL. 69-79 (1996).

71. In a provocative conclusion, Hough states: "Thus the issue contradicts the traditional belief that regimes are established in order to maximize the interests of dominant actors and it appears that norms of behavior in international politics, on which regimes develop, can have their source in morality as much as in the priorities of the powerful." Id.

72. DAVID G. VICTOR ET AL., THE IMPLEMENTATION AND EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL COMMITMENTS: THEORY AND PRACTICE 2 (1998).

73. EDITH BROWN WEISS & HAROLD K. JACOBSON, ENGAGING COUNTRIES: STRENGTHENING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL ACCORDS (1998).

74. P. VAN HEIJNSBERGEN, INTERNATIONAL LEGAL PROTECTION OF WILD FAUNA AND FLORA 217 (1997).

75. PAST ACHIEVEMENTS AND FUTURE CHALLENGES, supra note 22.

76. Ronald Mitchell, Regime Design Matters: International Oil Pollution and Treaty Compliance, 48 INT'L ORG. 425 (1994).

77. Emeka Duruigbo, Reforming the International Law and Policy on Marine Oil Pollution, 31 J. MAR. L. & COM. 65 (2000).

78. Okowa, supra note 43, at 334-35.

79. Donald R. Rothwell, The General Assembly Ban on Driftnet Fishing, in COMMITMENT AND COMPLIANCE: THE ROLE OF NONBINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM 145 (D. Shelton ed., 2000).

80. Id.

81. A. Nollkaemper, The Contribution of the International Law Commission to International Water Law: Does It Reverse the Flight From Substance?, in NETHERLANDS YEARBOOK OF INTERNATIONAL LAW 39, 44 (1996).

82. Id. at 46.

83. Bergesen & Botnen, supra note 31.

84. Robert A. Kaplan, Into the Abyss: International Regulation of Subseabed Nuclear Waste Disposal, 139 U. PA. L. REV. 769 (1991).

85. Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, 26 I.L.M. 1550.

86. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, 28 I.L.M. 657.

87. North American Agreement on Environmental Cooperation, Sept. 9 and Sept. 13, 1993, 32 I.L.M. 1480.

88. Sherwood F. Rowland, Atmospheric Changes Caused by Human Activities: From Science to Regulation, 27 ECOLOGY L.Q. 1261, 1269 (2001).

89. Karen Litfin, OZONE DISCOURSES: SCIENCE AND POLITICS IN GLOBAL ENVIRONMENTAL COOPERATION 58 (1994).

90. Id. at 70.

91. Vienna Convention for the Protection of the Ozone Layer art. 4, Mar. 22, 1985, 26 I.L.M. 1529.

92. Copenhagen Amendments to the Montreal Protocol on Substances That Deplete the Ozone Layer, Nov. 23, 1992, 32 I.L.M. 874.

93. London Amendments to the Montreal Protocol on Substances That Deplete the Ozone Layer, June 29, 1990, 30 I.L.M. 539.

94. O. Yoshida, Soft Enforcement of Treaties: The Montreal Protocol's Noncompliance Procedure and the Functions of Internal International Institutions, 10 COLO. J. INT'L L. & POL'Y 95 (1999).

95. MOSTAFA K. TOLBA, GLOBAL ENVIRONMENTAL DIPLOMACY (1998).

96. RICHARD ELIOT BENEDICK, OZONE DIPLOMACY (1991), as cited in DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 214 (1998).

97. Id. at 545.

98. Statement by David Hofmann, director of the Climate Monitoring and Diagnostics Lab in Boulder, Colorado, as cited in Environmental News Network, Oct. 7, 1998:

According to the WMO/UNEP 1998 Assessment of Ozone Depletion … the Antarctic ozone hole will remain severe for the next 10 to 20 years. Following this period a slow healing is expected with full recovery predicted to occur in the 2050 time frame. Climate change, which is predicted to include a colder stratosphere, will affect the rate of recovery, Hofmann said.

99. HUNTER ET AL., supra note 96, at 576.

100. Holly Sims, The Unsheltering Sky: China, India, and the Montreal Protocol, 24 POL'Y STUD. J. 201-14 (1996).

101. See also Frederick Poole Landers Jr., The Black Market Trade in Chlorofluorocarbons: The Montreal Protocol Makes Banned Refrigerants a Hot Commodity, 26 GA. J. INT'L & COMP. L. 457 (1997).

102. Patrick Tracey, Ozone Depletion: Britain Faces Refrigerator Crisis Under EU Law Requiring CFC Removal, 24 Int'l Env't Rep. (BNA) 1089 (Dec. 5, 2001).

103. Excerpt from Center for International Earth Science Information Network (CIESIN):

Trends in CFCs have shown a nearly constant increase at all monitoring locations. The vast majority of CFC production is in the Northern Hemisphere but, due to their stability, CFCs become well-mixed in the troposphere. CFC-11 and CFC-12 have been increasing globally at a rate of approximately 3.7 to 4.0 percent per year from the late 1970s through the late 1980s … however, Elkins et al. (1993) indicate a slowdown in the increase of CFC-11 and CFC-12. Global rates have shown decreasing growth from 11 +/- 1 parts per trillion per year (ppt/yr) during the mid 1980s to 2.7 ppt/yr for CFC-11, and 19.5 +/- 2 ppt/yr in the mid 1980s to 10.5 +/- 0.3 ppt/yr for CFC-12. These trends coincide with industry reports of decreased production of these compounds. If such trends continue, peak levels of chlorine in the stratosphere may be reached before the turn of the century and a downturn may follow.

CIESIN, MEASUREMENTS AND TRENDS IN OZONE AND CHLORO-FLUOROCARBON LEVELS (1996), available at http://www.ciesin.org/TG/OZ/trends.html (last visited Mar. 12, 2003).

104. Excerpt from CIESIN:

The most widely used source of ozone data is the TOMS data set. In an analysis of 13 years of daily ozone measurements from 1979 to 1991, Stolarski et al. (1991) show statistically significant decreases in total column ozone at all latitudes outside the tropical regions in "Total Ozone Trends Deduced From Nimbus-7 TOMS Data." Greatest loss is observed at high latitudes due to the unique conditions that lead to polar ozone depletion. Losses in the Antarctic show a maximum downward trend of approximately 3 percent per year during the spring months over the course of TOMS observations. Ozone loss at mid-latitudes ranges from 0.2 -0.8 percent decrease per year. More recent TOMS data analysis by Gleason et al. (1993) in "Record Low Ozone in 1992" shows globally averaged ozone levels reached all-time lows during 1992. Measurements from the National Aeronautic and Space Administration's Stratospheric Aerosol and Gas Experiment (SAGE) and ozone sonde launches have indicated that depletion has occurred primarily at low stratospheric altitudes, between 17 and 25 km.

Id.

105. Environmental News Network, Oct. 7, 1998.

106. Associated Press, Ozone, Oct. 7, 1999.

107. Environmental News Network, Oct. 7, 1998.

108. Elizabeth DeSombre, The Experience of the Montreal Protocol: Particularly Remarkable and Remarkedly Particular, 19 UCLA J. ENVTL. L. & POL'Y 49 (2001).

109. C. Petsonk, The Rise of the United Nations Environment Programme (UNEP) in the Development of International Environmental Law, 5 AM. J. INT'L L. & POL'Y 367 (1990).

110. Yoshida, supra note 94.

111. Id.

112. Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, art. 5, 26 I.L.M. 1550.

113. Sims, supra note 100.

114. HUNTER ET AL., supra note 96.

115. Id. at 545.

116. Yoshida, supra note 94, at 118.

117. RONNIE D. LIPSCHUTZ, GLOBAL CIVIL SOCIETY AND GLOBAL ENVIRONMENTAL GOVERNANCE 27 (1996).

118. Id.

119. Alan Miller & Mack McFarland, World Responds to Climate Change and Ozone Loss, 11 F. APPLIED RES. & PUB. POL'Y 55 (1996).

120. Yoshida, supra note 94.

121. Greenpeace, Money to Burn: The World Bank. Chemical Companies, and Ozone Depletion, 1 GREENPEACE NEWSL. 4 (1994).

122. DeSombre, supra note 108.

123. Jennifer Clapp, The Illegal CFC Trade: An Unexpected Wrinkle in the Ozone Protection Regime, 9 INT'L ENVTL. AFF. 259 (1997).

124. Stella Papasavva & William R. Moomaw, Adverse Implications of the Montreal Protocol Grace Period for Developing Countries, 9 INT'L ENVTL. AFF. 219 (1997).

125. Republic of Georgia, Verification of Compliance With International Environmental Accords, in STATE OF THE ENVIRONMENT GEORGIA (1996).

126. GLOBAL ENVIRONMENT FACILITY, BLACK SEA ENVIRONMENTAL PROGRAM COORDINATION UNIT BLACK SEA TRANSBOUNDARY DIAGNOSTIC ANALYSIS 139 (1997).

127. COLIN WOODARD, BLACK SEA AS ECOLOGICAL DISASTER? (1997).

128. Martin Sampson III, Black Sea Environmental Cooperation: States and the Most Seriously Degraded Regional Sea, 9 BOGAZICI J. REV. SOC., ECON. & ADMIN. STUD. 51 (1995). Early reports of pollution by heavy metals and pesticides are countered by the Black Sea Transboundary Diagnostic Analysis, which concludes that "the concentration of … pesticides and PCBs … was found to be rather low in most cases [and] it is quite apparent that the Black Sea is not generally polluted by heavy metals." GLOBAL ENVIRONMENT FACILITY, supra note 126, at 74.

129. Martin Sampson III, Environmental Aspects of Migration in the Black Sea Region (1996) (paper presented at the Conference on Migration and Security in Istanbul, Sept. 1996) (on file with author).

130. Global Learn, The Black Sea, at http://www.globalearn.org (last visited Mar. 1, 2003).

131. Robert D. Ballard, Deep Black Sea, 199 NAT'L GEOGRAPHIC 52 (2001).

132. GLOBAL ENVIRONMENT FACILITY, supra note 126.

133. Conclusions regarding the status of a species differ, and the 1997 BSEP, Annual Report states that 33 species exist in the Black Sea, with 4 species providing 80.4% of the total catch. U.N. DEVELOPMENT PROGRAM ET AL. (UNDP ET AL.), BLACK SEA ENVIRONMENTAL PROGRAMME: 1997 ANNUAL REPORT (1998).

134. Molly Moore, Is the Bosporus Taking on More Than It Can Handle? INT'L HERALD TRIB., Nov. 17, 2000.

135. Convention for the Protection of the Mediterranean Sea Against Pollution, Feb. 16, 1976, 15 I.L.M. 290.

136. Convention on the Protection of the Black Sea Against Pollution, Apr. 21, 1992, 32 I.L.M. 1101.

137. Ministerial Declaration of Black Sea, Apr. 7, 1993, 23 E.P.L. 235.

138. Moore, supra note 134.

139. Apr. 21, 1992.

140. Id.

141. Id.

142. Personal Communication with Program Coordination Unit staff member, Aug. 28, 1998. See also UNDP ET AL., supra note 133, at iii. In late 2001, the EU announced that Black Sea countries will voluntarily implement the EU's water directive. Environmental News Network, Nov. 2, 2001.

143. Their foci ranged from biodiversity at Batumi, Georgia, to integrated coastal zone management in Russia. A similar program coordinating national efforts has also been created for the Caspian Sea. Eric W. Sievers, The Caspian, Regional Seas, and the Case for a Cultural Study of Law, 13 GEO. INT'L ENVTL. L. REV. 361 (2001).

144. BSEP, STRATEGIC ACTION PLAN FOR THE REHABILITATION AND PROTECTION OF THE BLACK SEA (1996).

145. Specifically, Article 67 of the Strategic Action Plan states: "By 1998, all Black Sea coastal states will adopt criteria for environmental impact assessments and environmental audits that will be compulsory for all public and private projects. The coastal states will cooperate to harmonize these criteria by 1999 and where possible, to introduce strategic environmental assessments." Id. art. 67.

146. Sampson, supra note 128.

147. E. Yuksel Ozturk & A. Tanik, Waste Water Management Strategies for the Black Sea Coast of Turkey, 39 WATER SCI. TECH. 169, 172 (1999).

148. UNDP ET AL., supra note 133.

149. Martin Sampson III, Black Sea Environmental Cooperation: Toward a Fourth Track, in PROTECTING REGIONAL SEAS AND FOSTERING ENVIRONMENTAL COOPERATION IN EUROPE: CONFERENCE PROCEEDINGS, May 14, 1976 (Stacy D. Van Deveer et al. eds., 1999).

150. Sampson, supra note 129.

151. William O. Oldson, Background to Catastrophe: Romanian Modernization Policies and the Environment, 30 EAST EUROPEAN Q. 517 (1997).

152. Jutta Brunnee and Stephen Toope conclude that:

despite the numerous dispute settlement provisions included in international environmental treaties, these mechanisms are not widely employed. Dispute avoidance schemes linked to river commissions, such as consultation mechanisms and prior notification rules, have proven useful, but most third-party dispute settlement processes remain unused.

Jutta Brunnee & Stephen J. Toope, Environmental Security and Freshwater Resources: Ecosystem Regime Building, 91 AM. J. INT'L L. 2629, 2647 (1997). The availability of domestic and international fora to Parties outside the jurisdiction where the environmental problem occurred is a matter of international law addressed in a variety of ways. Under the NAFTA regime described infra, individuals, NGOs, and others may initiate a submission alleging that any of the three Parties to the Environmental Side Agreement has failed to enforce its environmental law effectively. In the EC, see Daniel C. Esty & Damien Geradin, Market Access, Competitiveness, and Harmonization: Environmental Protection in Regional Trade Agreements, 21 HARV. ENVTL. L. REV. 265, 309 (1997), and the Treaty Establishing the European Community, Feb. 7, 1992 O.J. (L 224) 1 C.M.L.R. 573 (1992), art. 169. In this regard a reported legal action by scientists from the Black Sea nations against Austria and Germany is illuminating. The action would challenge nitrogen discharges by the two countries into the Danube, more than 200 tons a year, which is 35% of the Black Sea total receipt. The discharges may violate the EU's directives on wastewater and nitrogen and thereby embarrass nations that take pride in pursuing strong environmental protection policies within their own borders and in other international contexts. The decision to pursue a legal action was reportedly made by a group of scientists and religious leaders. There are conflicting views of what actually was proposed.

153. UNDP ET AL., supra note 133.

154. See supra note 152.

155. PETER M. HAAS, SAVING THE MEDITERRANEAN: THE POLITICS OF INTERNATIONAL ENVIRONMENTAL COOPERATION (1990).

156. UNDP ET AL., supra note 133, at ii.

157. Sampson, supra note 149.

158. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, 28 I.L.M. 657.

159. David Abrams, Regulating the International Hazardous Waste Trade: A Proposed Global Solution, 28 COLUM. J. TRANSNAT'L L. 801 (1990).

160. Nigeria-Italy Waste Trade, at http://www.american.edu/ed/nigeria.htm (last visited July 2002).

161. Charles P. Wallace, Asia Tires of Being the Toxic Waste Dumping Ground for the Rest of the World, L.A. TIMES, Mar. 23, 1994; John B. Ovink, Transboundary Shipments of Toxic Waste: The Basel and Bamako Conventions. Do Third World Countries Have a Choice? 13 DICK. J. INT'L L. 281 (1995) as cited in HUNTER ET AL., supra note 96, at 860.

162. International Environment Reporter, Oct. 14, 1987, 504; Mark E. Allen, Slowing Europe's Hazardous Waste Trade: Implementing the Basel Convention Into European Union Law, 6 COLO. J. INT'L ENVTL. L. & POL'Y 164 (1995); Jason L. Gudofsky, Transboundary Shipments of Hazardous Waste for Recycling and Recovery Operations, 24 STAN. J. INT'L L. 219 (1998).

163. Abrams, supra note 159.

164. HUNTER ET AL., supra note 96, at 858.

165. JONATHAN KRUEGER, THE BASEL CONVENTION AND TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES, ENERGY, AND ENVIRONMENTAL PROGRAMME: BRIEFING 45 (1998); MOSTAFA K. TOLBA & IWONA RUMMEL-BULSKA, GLOBAL ENVIRONMENTAL DIPLOMACY: NEGOTIATING ENVIRONMENTAL AGREEMENTS FOR THE WORLD: 1973 TO 1992 (1998).

166. Basic Document 5.3, June 17, 1987.

167. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, art. 4(1), 28 I.L.M. 657.

168. Id. art. 1.

169. Id. art. 4.6.

170. Id. art. 1.

171. CONFERENCE OF THE PARTIES TO THE BASEL CONVENTION ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTE AND THEIR DISPOSAL, FOURTH MEETING (Feb. 23, 1998).

172. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, art. 3, 28 I.L.M. 657.

173. Id. art. 4.

174. Id. arts. 4(3), 4(4), 9.

175. Id. art. 4(9).

176. Id. art. 8.

177. Id. art. 11.

178. Id. art. 15.

179. Id. art. 20.

180. Id. art. 15.

181. Id. art. 17.

182. Id. art. 17(4).

183. Basel Parties Call for Minimizing Waste, Improving Capacity-Building for Handling, 22 Int'l Env't Rep. (BNA) 975 (Dec. 8, 1999).

184. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, 28 I.L.M. 657.

185. The difference between the export and import figures is approximately 8%. The amounts reported for the previous year, 1997, were considerably smaller, but that is probably mainly a reflection of the fewer countries reporting. The total waste exported was 1,890 million metric tons, and total waste imported was 2,171 million metric tons. The 1998 export data do not account for the 7% of wastes remaining after disposal and recycling. The import data have a gap of 13%; reported was 14% for disposal and 73% for recycling. The Secretariat also reported a difference of about 23% between the total quantities reported by exporting and importing Parties for disposal operations and an 18% difference for recycling operations. Countries reporting varied in size, region, and economic conditions and did not include the United States.

In 1998 the countries listed in the Secretariat's Country Fact Sheets were Albania, Algeria, Andorra, Antigua and Barbuda, Argentina, Australia, Austria, Bahrain, Belgium, Benin, Bolivia, Brazil, Bulgaria, Burundi, Canada, Chile, China, Colombia, Croatia, Cuba, Cyprus, Czech Republic, Denmark, El Salvador, Estonia, Finland, Gambia, Germany, Greece, Hungary, Iceland, Indonesia, Iran, Ireland, Japan, Kuwait, Kyrgyzstan, Latvia, Lebanon, Lithuania, Luxembourg, Malawi, Malaysia, Micronesia (Federated States of), Moldova, Monaco, Mongolia, Morocco, Netherlands, New Zealand, Nigeria, Norway, Oman, Panama, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Saint Lucia, Senegal, Seychelles, Slovakia, Sri Lanka, Switzerland, Thailand, Turkey, Turkmenistan, Uganda, United Kingdom, Uzbekistan, Viet Nam, and the former Yugoslav Republic of Macedonia.

186. Gudofsky, supra note 162, at 285.

187. James T. O'Reilly & Lorre Barbara Cuzze, Trash or Treasure? Industrial Recycling and International Barriers to the Movement of Hazardous Wastes, 22 J. CORP. L. 507, 515, (1997).

188. D. Hackett, An Assessment of the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal, 5 AM. U. J. INT'L L. & POL'Y 291 (1990); William Schneider, The Basel Convention Ban on Hazardous Waste Exports: Paradigm of Efficacy or Exercise in Futility? 20 SUFFOLK TRANSNAT'L L. REV. 247 (1996); HUNTER ET AL., supra note 96.

189. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, art. 12, 28 I.L.M. 657.

190. Hackett, supra note 188.

191. HUNTER ET AL., supra note 96.

192. KRUEGER, supra note 165.

193. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, pmbl., 28 I.L.M. 657.

194. Id. art. 4(2)(c).

195. Id. art. 4(2)(d).

196. Id. art. 4(4).

197. Id. art. 4(9)(c).

198. Schneider, supra note 188, at 268.

199. Id.

200. M. Cusack, International Law and the Transboundary Shipment of Hazardous Waste to the Third World: Will the Basel Convention Make a Difference? 5 AM. U. J. INT'L POL'Y 393, 420 (1990).

201. Deborah Zamora Grout, The Benefits of Basel, ENVTL. F., Jan./Feb. 1999, at 19.

202. Theodore Waugh, Where Do We Go From Here? Legal Controls and Future Strategies for Addressing the Transportation of Hazardous Wastes Across International Borders, 11 FORDHAM ENVTL. L.J. 477 (2000).

203. O'Reilly & Cuzze, supra note 187.

204. Grout, supra note 201.

205. KRUEGER, supra note 165.

206. Henry Weinstein, 2 Found Guilty of Exporting Toxic Waste, L.A. TIMES, Apr. 16, 1993; 42 U.S.C. §§ 6901-6992k; ELR STAT. RCRA §§ 1001-11011.

207. TOLBA & RUMMEL-BULSKA, supra note 165, at 116.

208. Basel Secretariat, 1999 Compilation Part I: Reporting and Transmission of Information Under the Basel Convention for the Year 1997 (1999) (excluding statistics on generation and transboundary movements of hazardous wastes and other wastes) (Basel Convention Series/SBC 99/011).

209. U.S. EPA, INTERNATIONAL TRADE IN HAZARDOUS WASTE: AN OVERVIEW: ENFORCEMENT AND COMPLIANCE ASSURANCE 222A (1998) (EPA-305-K-98-001).

210. For a discussion of the effects of nonratification of Basel, see Mark Bradford, The United States, China, and the Basel Convention on the Transboundary Movements of Hazardous Wastes and Their Disposal, 8 FORDHAM ENVTL. L.J. 305 (1997).

211. Lee Ann Rogus, The Basel Convention and the United States, in NEW ENGLAND INTERNATIONAL AND COMPARATIVE LAW ANNUAL (1996).

212. North American Free Trade Agreement, Dec. 17, 1992, 32 I.L.M. 605 (entered into force Jan. 1, 1994).

213. North American Agreement on Environmental Cooperation, Sept. 9 and Sept. 14, 1993, 32 I.L.M. 1480 (entered into force Jan. 1, 1994).

214. United States Restrictions on Tuna From Mexico, Aug. 16, 1991, GATT B.I.S.D. (39th Supp.) at 155 (1991), reprinted in 30 I.L.M. 1594 (1991).

215. 16 U.S.C. §§ 1361-1421h, ELR STAT. MMPA §§ 2-409 (Marine Mammal Protection Act).

216. Trade with Canada and Mexico accounts for approximately one-third of all U.S. exports and 27% of all U.S. imports. Evangelos Simos & John E. Triantis, International Economic Outlook, 14 J. BUS. FORECASTING METHODS & SYS. 30 (1995).

217. North American Free Trade Agreement, Dec. 17, 1992, arts. 1114, 2101(3), 32 I.L.M. 605.

218. Id. ch. 7.

219. Id. ch. 9.

220. Id. art. 104.

221. See Janine H. Ferretti, Statement on Behalf of Pollution Probe Before the Standing Senate Committee on Foreign Affairs on the North American Free Trade Agreement and the Promotion of Sustainable Development (Feb. 25, 1992), especially regarding the imposition of U.S. risk-benefit analysis onto Canadian health and safety regulations.

222. Greenpeace, All Talk, No Teeth: NAAEC Sidesteps the Environment (1993) (posted electronic conference trade, library@conf.igc.apc.org).

223. Gilbert R. Winham, Enforcement of Environmental Measures: Negotiating the NAFTA Environmental Side Agreement, 3 J. ENV'T & DEV. 29 (1994).

224. Stephen Mumme & Terry Sprouse, Beyond BECC: Envisioning Needed Institutional Reforms for Environmental Protection on the Mexico-U.S. Border, in HANDBOOK OF GLOBAL ENVIRONMENTAL POLICY AND ADMINISTRATION (Dennis L. Soden & Bret S. Steel eds., 1999).

225. Id.

226. Susan Bruninga, Pollution Releases Increase Slightly From U.S. Canadian Industries, CEC Says, 23 Int'l Env't Rep. (BNA) 453 (June 7, 2000).

227. Grace V. Chomo & Michael J. Ferrantino, NAFTA Environmental Impacts on North American Fisheries, in ENVIRONMENT AND TRADE SERIES (CEC 2000).

228. Beatriz Bugeda, Is NAFTA Up to Its Green Expectations? Effective Law Enforcement Under the North American Agreement on Environmental Cooperation, 32 U. RICH. L. REV. 1591 (1999).

229. Id.

230. Steve Charnovitz, The NAFTA Environmental Side Agreement: Implications for Environmental Cooperation, Trade Policy, and American Treatymaking, 8 TEMP. INT'L & COMP. L.J. 257, 267 (1994).

231. For example, regarding SEM-98-002, the CEC ruled as follows:

On 23 June 1998 the Secretariat determined not to review the Submission because it did not refer to environmental law as defined by the NAAEC. The subject matter of the submission is a commercial forestry dispute under law that, because of its primary purpose (managing the commercial exploitation of natural resources), is expressly excluded from Article 14 review by the definition of environmental law in Article 45(2)(b) of the Agreement.

CEC, PUBLIC REGISTRY OF SUBMISSIONS ON ENFORCEMENT MATTERS (2000), available at http://www.cec.org (last visited Feb. 27, 2000). In response to a submission alleging that Canada had "jeopardized the future of Canada's east coast fisheries" (SEM-97-004), however, the CEC made the following determination:

Under the circumstances, the submission does not appear to have raised the issue of non-enforcement in a timely manner in light of the temporal requirement of Article 14(1) established by the use of the words "is failing." The significant delay between the time of the alleged failure to enforce and the filing of the submission contravenes the purpose and intent of Article 14(1) in light of the circumstances described below.

Id.

232. According to the CEC, the submission (SEM-99-002) alleges that the Migratory Bird Treaty Act implements four international treaties, including agreements with Canada and Mexico, aimed at protecting migratory birds, and in § 703 prohibits any person from killing or "taking" migratory birds "by any means or in any manner," unless the U.S. Fish and Wildlife Service issues a valid permit. The submission alleges that "the United States deliberately refuses, however, to enforce this clear statutory prohibition as it relates to loggers, logging companies, and logging contractors." The CEC did not rule that this submission is beyond its purview; rather in December 1999 it requested a response from the United States.

233. As of June 2002, a total of 34 citizen submissions on enforcement matters had been filed with the CEC, and 5 factual records had been ordered. Three factual records had already been completed and released: SEM-96-001 "Cozumel," SEM-97-001 "B.C. Aboriginal Fisheries," and SEM-98-007, "Metales y Derivados." Submissions have varied considerably. As noted in the text, "Cozumel" involved challenges to the environmental evaluation process of a public harbor terminal for tourist cruises on the Island of Cozumel in Quintana Roo, Mexico. In the fisheries submission the submitters alleged that the Canadian government is failing to enforce a section of the Fisheries Act and to utilize its powers pursuant to another law to ensure the protection of fish and fish habitat in British Columbia's rivers from ongoing and repeated environmental damage caused by hydro-electric dams.

234. Charnovitz, supra note 230.

235. Id. at 280.

236. Id.

237. Id. at 263.

238. PIERCE MARC JOHNSON & ANDRE BEAULIEU, THE ENVIRONMENT AND NAFTA: UNDERSTANDING AND IMPLEMENTING THE NEW CONTINENTAL LAW 141 (1996).

239. North American Agreement on Environmental Cooperation, Sept. 9 and Sept. 14, 1993, art. 9(2), 32 I.L.M. 1480 (entered into force Jan. 1, 1994).

240. ECONOMIST, Feb. 18, 1994.

241. Charnovitz, supra note 230, at 265; BARBARA HOGENBOOM, MEXICO AND THE NAFTA ENVIRONMENT DEBATE: THE TRANSNATIONAL POLITICS OF ECONOMIC INTEGRATION 221 (1998).

242. Stephen Mumme & Pamela Duncan, The Commission for Environmental Cooperation and Environmental Management in the Americas, 39 J. INTERAMERICAN STUD. & WORLD AFF. 41 (1998).

243. International Environment Reporter, Dec. 16, 1994, D3.

244. Christopher Stone, The NAFTA Environmental Side Agreement. Pre-Conference Comments, Third Generation of International Environmental Law, at the University of California Irvine (1999).

245. Marianne Lavelle, Poisoned Waters, NAT'L L.J., Mar. 14, 1994.

246. Charnovitz, supra note 230, at 270.

247. In June 2000, the council approved a new role for the JPAC in reviewing issues about the submissions process.

248. The conflict has arisen in a number of cases. One involved Canada's attempt to ban the cross-border movement of hazardous wastes, including polychlorinated biphenyls (PCBs). Operating under the provisions of NAFTA Chapter 11, a dispute resolution panel indicated that Canada's regulation treated a U.S. business differently from Canadian investors. Another case involved the claim of a Canadian business, Methanex Corporation, that the United States must pay almost $ 1 billion because California planned to remove the toxic chemical methyl tertiary butyl ether (MTBE) from gasoline to prevent water contamination. A third involved U.S. attempts to regulate Mexican truck movement into the United States in a broad manner rather than on a case-by-case basis. Allegedly, the United States was limiting access for safety reasons. In yet another conflict, an American firm recovered millions in damages against Mexico for that country's attempts to regulate a waste disposal facility.

249. JOHNSON & BEAULIEU, supra note 238, at 257.

250. Margaret Wilder, Border Farmers, Water Contamination, and the NAAEC Environmental Side Accord to NAFTA, 40 NAT. RESOURCES J. 873 (2000).

251. Henry D. Jacoby et al., Kyoto's Unfinished Business, 77 FOREIGN AFF. 54, 56 (1998).

252. IPCC, The Second Assessment Synthesis of Scientific-Technical Information Relevant to Interpreting Article 2 of the U.N. Framework Convention on Climate Change § 2.12 (1995).

253. IPCC WORKING GROUP I, SUMMARY FOR POLICYMAKERS: THE SCIENCE OF CLIMATE CHANGE § 4 (2001).

254. IPCC assesses scientific, technical, and socioeconomic information relevant for the understanding of the risk of human-induced climate change. It does not carry out new research or monitor climate-related data. It bases its assessment on published and peer-reviewed scientific technical literature. IPCC, About IPCC, at http://www.ipcc.ch/about/about.htm (last visited Mar. 17, 2003).

255. IPCC, supra note 252, at § 2.4.

256. IPCC WORKING GROUP II, SUMMARY FOR POLICYMAKERS: SCIENTIFIC-TECHNICAL ANALYSES OF IMPACTS, ADAPTATIONS, AND MITIGATION OF CLIMATE CHANGE (1995)

257. IPCC WORKING GROUP I, supra note 253.

258. GLOBAL ENVIRONMENT OUTLOOK 1997, supra note 62, at 228.

259. IPCC, supra note 252, at § 2.3.

260. Carbon emissions per capita per year were 5.3 metric tons in the United States (the highest per capita CO₂ emission rate in the world), 1.0 metric ton in Argentina, and 0.1 metric ton in Paraguay. The average for industrial nations was 3.1 metric tons. Bernard P. Herber & Jose T. Raga, An International Carbon Tax to Combat Global Warming: An Economic and Political Analysis of the European Union Proposal, 54 AM. J. ECON. & SOC. 257 (1995).

261. The U.S. Energy Department has predicted that for the near future, U.S. emissions of CO₂ and other heat-trapping greenhouse gases from energy use will grow faster than previously expected. N.Y. TIMES, Nov. 13, 1997.

262. INFORMATION UNIT ON CLIMATE CHANGE, THE FIRST WORLD CLIMATE CONFERENCE. GENEVA: INFORMATION UNIT ON CLIMATE CHANGE (1979).

263. WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE (1998) [hereinafter THE BRUNDTLAND REPORT].

264. Daniel Bodansky, Book Review, 192 AM. J. INT'L L. 172 (1997) (reviewing JOYEETA GUPTA, THE CLIMATE CHANGE CONVENTION AND DEVELOPING COUNTRIES: FROM CONFLICT TO CONSENSUS (1997)).

265. CONFERENCE OF THE PARTIES TO THE BASEL CONVENTION ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTE AND THEIR DISPOSAL, FOURTH MEETING, REPORT OF THE CONFERENCE OF THE PARTIES ON ITS FOURTH SESSION, 2-14 (1998); BUENOS AIRES. ADDENDUM, PART 2: ACTION TAKEN BY THE CONFERENCE OF THE PARTIES AT ITS FOURTH SESSION (1999).

266. The distinction between trading and joint implementation arose after the first COP vowed to ban trading as a means of meeting quantitative commitments under the joint implementation provisions of the framework. David M Driesen, Free Lunch or Cheap Fix? The Emissions Trading Idea and the Climate Change Convention, 26 B.C ENVTL. AFF. L. REV. 1 n.37 (1998).

267. According to one estimate (International Energy Agency), this and related decisions suggested that by the beginning of the millennium U.S. emissions would be 16% higher than they were in 1990. Id.

268. United Nations Framework Convention on Climate Change, May 9, 1992, art. 3.1, 32 I.L.M. 848 (entered into force, Mar. 21, 2002).

269. From FCCC Article 3.3: "The Parties should take precautionary measures to anticipate, prevent, or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures." Id. art. 3.3.

270. Id. art. 4.2.a.

271. The 39 Annex 1 Parties include Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Czech Republic, Denmark, Estonia, European Community, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, Ukraine, the United Kingdom and Northern Ireland, and the United States.

272. Id. art. 4.3.

273. Id. art. 4.2.b.

274. "Any Party not included in Annex I may, in its instrument of ratification, acceptance, approval or accession, or at any time thereafter, notify the Depositary that it intends to be bound by subparagraphs (a) and (b) above. The Depositary shall inform the other signatories and Parties of any such notification." Id. art. 4.2(g); see also id. art. 12.4:

Developing country Parties may, on a voluntary basis, propose projects for financing, including specific technologies, materials, equipment, techniques or practices that would be needed to implement such projects, along with, if possible, an estimate of all incremental costs, of the reductions of emissions and increments of removals of greenhouse gases, as well as an estimate of the consequent benefits.

Id. art. 12.4.

275. Id. art. 3.3.

276. "Sinks" are locations or chemical configurations that result in effective removal of pollution from biological, chemical, and physical processes. For example, forests act as a sink for CO₂ .

277. Although the COP process replaced the INC, the INC continued to meet up until the first COP (COP-1) to facilitate start-up issues of the FCCC. Daniel Bodansky, The History and Legal Structure of the Global Climate Change Regime § 4.1.5, in INTERNATIONAL RELATIONS AND GLOBAL CLIMATE CHANGE (Detlef Sprinz & Urs Luterbacher eds., 1997) (PIK Report 21), available at http://www.pik-potsdam.de/reports/pr.21/pr21_1.htm (last visited Mar. 13, 2003).

278. IPCC, SECOND ASSESSMENT REPORT: CLIMATE CHANGE.

279. CONFERENCE OF THE PARTIES TO THE UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE, REPORT OF THE CONFERENCE OF THE PARTIES ON ITS SECOND SESSION: THE GENEVA MINISTERIAL DECLARATION, U.N. Doc. FCCC/CP/1996/15/Add.1 (1996).

280. Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997, art. 3.1, 37 I.L.M. 22, U.N. Doc. FCCC/CP/L.7/Add I.

281. The Kyoto Protocol specifies, among other requirements, that only projects that provide "a reduction in emissions by sources, or an enhancement of removals by sinks, that is additional to any that would otherwise occur" may be used to meet annex 1 reduction commitments. Id. art. 6.1.b.

282. Id. art. 3.14.

283. Id. art. 2(3).

284. Id.

285. FCCC Secretariat, Press Release, Ministerial Talks on Climate Change Set for 2-4 November in Bonn (June 11, 1999).

286. CORRIERE DELLA SERA, Nov. 26, 2000; INT'L HERALD TRIB., Nov. 27, 2000.

287. Pew Center on Global Climate Change, at http://www.pewclimate.org (last visited Mar. 12, 2003).

288. Countries that provide subsidies for energy-efficient products could be in conflict with the Agreement on Subsidies and Countervailing Measures of WTO rules, although there is an environmental protection exception. Most-favored-nation treatment may be inconsistent with a multilateral regime allowing trading only among Parties to the Kyoto Protocol. The regime's compliance rules can, however, be promoted in ways that are technically consistent with WTO principles. They can be designed so as to avoid being considered a "service" and to not be "differentiated by their country of origin." More satisfying and more compatible with progressive international law is the conclusion that efforts to promote climate stabilization are exempt from the WTO restrictions—even if they look like trade activities, which, were they not so motivated, may confront challenges. Glenn M. Wiser, The Clean Development Mechanism Versus the World Trade Organization: Can Free-Market Greenhouse Gas Emissions Abatement Survive Free Trade?, 11 GEO. INT'L ENVTL. L. REV. 531 (1999). Certainly this will require creation of some means of monitoring CDM activity. More important, it will require some trust in nation-states that are asserting this exemption.

289. ANGIE K. MILLER ET AL., WHAT'S FAIR? CONSUMERS AND CLIMATE CHANGE (2000).

290. Domestic policies considered in national law that are promising include expansion of federal weatherization assistance, location-efficient mortgages, recovery of inefficient cars and appliances, expansion of emergency management agency activities, and federal provision of health insurance. Id.

291. Marc A. Levy et al., Improving the Effectiveness of International Environmental Institutions, in INSTITUTIONS FOR THE EARTH: SOURCES OF EFFECTIVE INTERNATIONAL ENVIRONMENTAL PROTECTION 397-426 (P. Haas et al. eds., 1993).

292. PHILIP SHABECOFF, A NEW NAME FOR PEACE: INTERNATIONAL ENVIRONMENTALISM, SUSTAINABLE DEVELOPMENT, AND DEMOCRACY 115 (1996).

293. Id. at 45.

294. Alexander Timoshenko & Mark Berman, The United Nations Environment Programme and the United Nations, in GREENING INTERNATIONAL LAW, supra note 56, at 39.

295. Id.

296. THE BRUNDTLAND REPORT, supra note 263, at 43-46.

297. Timoshenko & Berman, supra note 294, at 40.

298. LYNTON KEITH CALDWELL, INTERNATIONAL ENVIRONMENTAL POLICY: EMERGENCE AND DIMENSIONS 82 (1990).

299. Convention on Biological Diversity art. 2, 31 I.L.M. 818 (1992), Signed June 5, 1992 (entered into force Dec. 29, 1993).

300. Agreement Establishing the Multilateral Trade Organization. Multilateral Trade Negotiations (the Uruguay Round), MTN/FA, 33 I.L.M. (1994).

301. SHABECOFF, supra note 292, at 4.

302. Philipe Sands, International Law in the Field of Sustainable Development: Emerging Legal Principles, in SUSTAINABLE DEVELOPMENT AND INTERNATIONAL LAW 67 (Winfried Lang ed., 1995).

303. Handl, supra note 14, at 312, n.43.

304. Paula Sirola, When Rhetoric and Reality Don't Match: A Critical Analysis of Environmentalism in Indigenous Development Projects (2001) (paper presented at The Greening X Conference, University of California, Irvine, Jan. 27, 2001).

305. PAMELA MAE DOUGHMAN, DISCOURSE, SUSTAINABLE DEVELOPMENT, MEXICO, AND WATER (1999).

306. Koskenniemi, supra note 2, at 244.

307. UNEP, SYNERGIES: PROMOTING COLLABORATION ON ENVIRONMENTAL TREATIES 1 (1999).

308. 22 Int'l Env't Rep. (BNA) 745 (Sept. 15, 1999).

309. HUNTER ET AL., supra note 96.

310. Dorothy Nelkin et al., Genetically Modified Organisms: Forward, the International Challenge of Genetically Modified Organism Regulation, 8 N.Y.U. ENVTL. L.J. 523, 526 (2000).

311. The Cartagena Protocol reads remarkably like the Basel Convention in assessments of benefits and risks of genetically modified organisms. Among its requirements is that importing countries would be given prior notification of movements of genetically modified crops and that the importing nation's right to regulate and to bar the organism would be recognized. Some examples of the conflict make comical fodder. A number of Greenpeace members, including a noble, were arrested in Norfolk, England, for using a mower to tear up a trial crop of maize. The crop was one of a number of government-supported genetic modification trials in England. 22 Int'l Env't Rep. (BNA) 660 (Aug. 4, 1999). Even the royal family disagrees within itself about the role of genetic modification in British agriculture.

312. Suzanne Levesque, From Yellowstone to Yukon: Combining Science and Activism to Shape Public Opinion and Policy (2000) (internal citations omitted; Ph.D. dissertation University of California, Irvine).

313. Id.

314. EDITH BROWN WEISS, ENVIRONMENTAL CHANGE AND INTERNATIONAL LAW (1992) [hereinafter ENVIRONMENTAL CHANGE AND INTERNATIONAL LAW].

315. Id. at 15.

316. Andrew C. Revkin, Report Forecasts Warming's Effects, N.Y. TIMES, June, 12 2000.

317. Richard S. Lindzen of the Massachusetts Institute of Technology, who is the Alfred P. Sloan professor of meteorology, argues: "We don't know what determines upper level water vapor," a factor he says is "crucial and central to the predictions of future climate change." William Stevens, The Hot Spot Approach to Saving Species, N.Y. TIMES, Dec. 1, 1997. Uncertainties about interactions between and among natural systems, human systems, and climate remain numerous. Revkin, supra note 316.

318. Donald E. Elliott, Global Climate Change and Regulatory Uncertainty, 9 ARIZ. J. INT'L & COMP. L. 259-66 (1992).

319. Held at The Hague in November 2000.

320. SHABECOFF, supra note 292, at 140-41.

321. Nespor, supra note 7.

322. John W. Meyer et al., The Structuring of a World Environmental Regime, 1870-1990, 51 INT'L ORG. 623, 645 (1997).

323. A logical possibility in some spheres is that science will discover that legal intervention is too late. Although researchers offered the example to encourage improved resource management, in 2001 scientists reported that overfishing historically was a major cause of ecological extinction of some marine megafauna. Part of the cause was already triggered in the late aboriginal stage. Cat. Lazaroff, Historic Overfishing Led to Modern Ocean Problems, ENV'T NEWS SERV., Aug. 14, 2001.

324. MICHAEL PORTER, THE COMPETITIVE ADVANTAGE OF NATIONS (1990); JOSEPH F.C. DiMENTO, THE GLOBAL ENVIRONMENT AND INTERNATIONAL LAW ch. 3 (2003).

325. 23 Int'l Env't Rep. (BNA) 352 (May 4, 2000).

326. In 2000, Ford announced major efforts to make mileage improvements in its sport utility vehicles (SUVs). The fleet had been among the industry's most profitable, but Ford management concluded that greater company sales could make up profit differences between SUVs and more efficient vehicles and that the increased sales might evolve from a commitment to environmental improvement. 23 Int'l Env't Rep. (BNA) 448 (Aug. 2, 2000). Critics consider these initiatives much too modest: the average fuel economy of Ford SUVs was 16 miles per gallon at the time, and environmental organizations such as the U.S. Public Interest Research Group were advocating a standard of 45 miles per gallon. Id. at 612.

327. JEFFREY L. PRESSMAN & AARON WILDAVSKY, IMPLEMENTATION: HOW GREAT EXPECTATIONS IN WASHINGTON ARE DASHED IN OAKLAND (1973).

328. Sievers, supra note 143.

329. As of June 2002, only Alberta, Manitoba, and Quebec had signed the NAAEC side agreement. Personal Communication with CEC (June 25, 2000).

330. DiMENTO, supra note 324.

331. MARCELLO FLORES, IL SECOLO-MONDO: STORIA DEL NOVECENTO (2002).

332. ROBERT KING MERTON, ON THEORETICAL SOCIOLOGY (1967).

333. See supra note 314, at 11-12.

334. Handl, supra note 14, at 331.

335. SUSSKIND, supra note 9.

336. THOMAS GEHRING, DYNAMIC INTERNATIONAL REGIMES: INSTITUTIONS FOR INTERNATIONAL ENVIRONMENTAL GOVERNANCE (1994); Robert O. Keohane, Against Hierarchy: An Institutional Approach to International Environmental Protection, in LOCAL COMMONS AND GLOBAL INTERDEPENDENCE: HETEROGENEITY AND COOPERATION IN TWO DOMAINS (R. Keohane & Elinor Ostrom eds., 1995); PETER HAAS, COMPLEX COOPERATION: INSTITUTIONS AND PROCESSES IN INTERNATIONAL RESOURCE MANAGEMENT (1994).

337. GEHRING, supra note 336, at 482.

338. Ronald Mitchell, Book Review, INT'L ENVTL. AFF. 189 (1995) (reviewing GEHRING, supra note 336).

339. GEHRING, supra note 336, at 483-84.

340. JOSEPH DiMENTO, MANAGING ENVIRONMENTAL CHANGE: A LEGAL AND BEHAVIORAL PERSPECTIVE (1976); JOSEPH DiMENTO, ENVIRONMENTAL LAW AND AMERICAN BUSINESS: DILEMMAS OF COMPLIANCE (1986).

341. GRAHAM ALLISON, ESSENCE OF DECISION: EXPLAINING THE CUBAN MISSILE CRISIS (1971).

342. Harold Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599 (1997).

343. Id.; Abram Chayes & Antonia Handler Chayes, Compliance Without Enforcement: State Behavior Under Regulatory Regimes, 7 NEGOTIATION J. 311 (1991); Abram Chayes & Antonia Handler Chayes. On Compliance, 47 INT'L ORG. 175 (1993); ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS (1995).

344. David Lewis Feldman, Interacting Functionalism and Climate Management Organizations: From Intergovernmental Panel on Climate Change to Intergovernmental Negotiating Committee, in INTERNATIONAL ORGANIZATIONS AND ENVIRONMENTAL POLICY 188 (Robert Bartlett et al. ed., 1995).

345. Ronnie D. Lipschutz, Local Action, Bioregional Politics, and Transnational Collaborative Networks in Policy Responses to Global Environmental Change 23 (1992) (paper presented to the annual meeting of the American Political Science Association, Sept. 1992).

346. Andrew C. Revkin, Climate Pact Eludes Major Players, INT'L HERALD TRIB., Nov. 27, 2000.

347. Paul C. Szasz, International Norm Making, in ENVIRONMENTAL CHANGE AND INTERNATIONAL LAW, supra note 314, at 74.

348. GLOBAL ENVIRONMENT OUTLOOK 1997, supra note 62.

349. Id.

350. Id. at 131.

351. DiMENTO, supra note 324.

352. What is regulatory is a matter of semantics. Some analysts include taxes; others do not. Jonathan Weiner lists technology-based requirements, harmonized policies, pollution taxes, fixed performance targets, tradeable allowances, as well as command and control, property rules, etc. Jonathan Weiner, Global Environmental Regulation: Instrument Choice in Legal Context, 108 YALE L.J. 677 (1999).

353. George W. Downs et al., Is the Good News About Compliance Good News About Cooperation? 50 INT'L ORG. 379, 398 (1996).

354. Ved. P. Nanda, The Kyoto Protocol on Climate Change and the Challenges to Its Implementation: A Commentary, 10 COLO. J. INT'L ENVTL. L. & POL'Y 319 (1999).

355. SHABECOFF, supra note 292, at 118.

356. Id. at 121.

357. Id. at 118.

358. DANIEL C. ESTY, GREENING THE GATT: TRADE ENVIRONMENT AND THE FUTURE (1994); G. Palmer, New Ways to Make International Environmental Law, 86 AM. J. INT'L L. 259 (1992).

359. Resolution 45/121, Dec. 14, 1990.

360. Byung-Sun Cho, Emergence of International Environmental Criminal Law?, 19 UCLA J. ENVTL L. & POL'Y 11 (2001).

361. Convention for the Preservation of Fur Seals, July 7, 1911, Treaty Series No. 564, 37 Statutes at Large 1542.

362. Cho, supra note 360.

363. Rome Statute of the International Criminal Court, pmbl., U.N. Doc. A/CONF.183/9 (1998) (entered into force July 1, 2002).

364. Id. art. 4.

365. Id. art. 8.

366. INTERNATIONAL LAW COMMISSION DRAFT ARTICLES ON STATE RESPONSIBILITY art. 1(d) (1976).

367. The Law of the Sea Convention, in Article 235(3) of the 1982 UNCLOS.

368. INSTITUTE OF INTERNATIONAL LAW, RESPONSIBILITY AND LIABILITY UNDER INTERNATIONAL LAW FOR ENVIRONMENTAL DAMAGE art. 1 (1997).

369. Id. arts. 2, 5.

370. SANDS, supra note 16, at 161.

371. Id.

372. Koskenniemi, supra note 2, at 246.

373. The numbers of these organizations are impressive. Bryan H. Massam and Robert Earl-Goulet, limiting their scope to only 14 central and eastern European countries, analyzed 1,700 environmental NGOs. Bryan H. Massam & Robert Earl-Goulet, Environmental Nongovernmental Organizations in Central and Eastern Europe's Contribution to Civil Society, 9 INT'L ENVTL. AFF. 127 (1997). At about the same time—1994—the count of all intergovernmental organizations was about 1,700. Meyer et al., supra note 322, at 623. Meyer put the count of NGOs with liaison with the UNEP Environmental Liaison Center at more than 10,000 by the mid-1990s. Id.

374. Mark A. Drumbl, Does Sharing Know Its Limits? Thoughts on Implementing International Agreements: A Review of National Environmental Policies, 18 VA. ENVTL. L.J. 281-304 (1999).

375. SHABECOFF, supra note 292, at 136.

376. IMPROVING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL LAW (J. Cameron, J. Werksman & P. Roderick eds., 1996).

377. SHABECOFF, supra note 292, at 150.

378. United Nations Framework Convention on Climate Change, May 9, 1992, art. 7.2(l), 32 I.L.M. 848 (entered into force Mar. 21, 2002).

379. Id. art. 7(6).

380. Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997, art. 6.3, 37 I.L.M. 22, U.N. Doc. FCCC/CP/L.7/Add I.

381. Id. art. 8.

382. Steve Charnovitz, Participation of Nongovernmental Organizations in the World Trade Organization, 17 U. PA. J. INT'L ECON. L. 331 (1998).

383. Kal Raustiala, States, NGOs, and International Environmental Institutions, 41 INT'L STUD. Q. 719, 737 (1997).

384. Id. at 726.

385. Kal Raustiala, The Participatory Revolution in International Environmental Law, 21 HARV. ENVTL. L. REV. 537 (1997).

386. Sievers, supra note 143, at 394.

387. UNDP ET AL., supra note 133, at iii.

388. STONE, supra note 69.

389. SHABECOFF, supra note 292, at 125.

390. Id.

391. 22 Int'l Env't Rep. (BNA) 919 (Nov. 10, 1999).

392. Levesque, supra note 312.

393. Environmental Review of Trade Agreements. Exec. Order No. 13141, 64 Fed. Reg. 63169 (Nov. 18, 1999).

394. 22 Int'l Env't Rep. (BNA) 948 (Nov. 24, 1999).

395. 22 Int'l Env't Rep. (BNA) 798 (Sept. 24, 1999).

396. HUNTER ET AL., supra note 96.

397. John H. Knox, The Myth and Reality of Transboundary Environmental Impact Assessment, 96 AM. J. INT'L L. 291 (2002).

398. Annex 1, Oct. 4, 1991, 30 I.L.M.

399. Feb. 25, 1991, 30 I.L.M. 800.

400. Prue Taylor, Heads in the Sand as the Tide Rises: Environmental Ethics and the Law on Climate Change, 19 UCLA J. ENVTL. L. & POL'Y 247 (2001).

401. Okowa, supra note 43, at 284.

402. Which projects are of international environmental concern? At what point is international notification required? How is a response to comments defined across nation-states? Is information readily available in a national context diplomatically sensitive in an international setting? How is "environment" to be defined? Are social elements of the environment to be included?

403. Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters art. I, Apr. 21, 1998, ECE/CEP/43.

404. BRANISLAV GOSOVIC, THE QUEST FOR WORLD ENVIRONMENTAL COOPERATION: THE CASE OF THE U.N. GLOBAL ENVIRONMENT MONITORING SYSTEM (1992).

405. HELEN SJOBERG, THE GLOBAL ENVIRONMENTAL FACILITY, IN GREENING ENVIRONMENTAL INSTITUTIONS 161-62 (Jacob Werksmann ed., 1996).

406. Designing means of coordinating IGO activities can itself be an organizational challenge. In 1978, the United Nations attempted to promote communication and information-sharing among its constituent environment-focused organizations. It created the Designated Officials on Environmental Matters, but the results have done "little in the way of priority setting, program steering or implementation design." LAMONT HEMPEL, ENVIRONMENTAL GOVERNANCE 144 (1996). UNEP now is establishing the Division for Environmental Conventions. UNEP, SYNERGIES: PROMOTING COLLABORATION ON ENVIRONMENTAL TREATIES 1 (1999).

407. GOSOVIC, supra note 404, at 211.

408. Larry E. Susskind, What Will It Take to Ensure Effective Global Environmental Management? A Reassessment of Regime-Building Accomplishments, in NEGOTIATING INTERNATIONAL REGIMES: LESSONS LEARNED FROM THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT (Bertram Spector et al. eds., 1994). It has never been confirmed, but some of the problems that led to the precipitous resignation and firings in the CEC Secretariat in 1998 may have had to do with information leaks or the creation of improper channels between Secretariat Members and their native states.

409. DONALD N. MICHAEL, ON LEARNING TO PLAN AND PLANNING TO LEARN (1973).

410. Translated by the author, from Corriere della Sera, November 27, 2000: "Ma, nel frattempo, non e maturata una struttura decisionate che sia capace di governare la globalizzazione delle emergenze amblentali, di prendere decisioni nell'interess di tutti."

411. ENVIRONMENTAL CHANGE AND INTERNATIONAL LAW, supra note 314, at 12.

412. William Stevens, The Hot Spot Approach to Saving Species, N.Y. TIMES, Mar. 14, 2000.

413. Id.

414. UNEP, GLOBAL ENVIRONMENT OUTLOOK 2000, supra note 1, at 141.

415. The purchase price of new vehicles is dependent on their fuel-efficiency by means of a tax or subsidy. A system of tradable emissions credits allows car manufacturers more flexibility in reaching emission standards, providing for both trading and banking for future use. Gert Koopman, Policies to Reduce CO₂ Emissions From Cars in Europe, 29 J. TRANSPORT ECON. & POLICY 53, 56 (1995).

416. Susskind, supra note 408, at 123. Private economic initiatives also can foster efforts at cooperation. The strategic use of wealth by major foundations, such as Packard, and megarich individuals, such as Ted Turner and Bill Gates, can provide the means to implement cooperation where law design has been accomplished but means are scarce (in the Black Sea, for example).

417. Daniel C. Esty, Toward Optimal Environmental Governance, 74 N.Y.U. L. REV. 1495 (1999).

418. Id. at 1546.

419. Frank X. Perez, The Relationship Between "Permanent Sovereignty" and the Obligation Not to Cause Transboundary Environmental Damage, 26 ENVTL. L. 1187 (1996). Other specific asserted property rights need to be addressed. Some are quite technical. Under the climate change regime, for example, countries such as Russia (with economies in transition) have generated what is called hot air. Hot air is the amount by which a Kyoto target exceeds its probable emissions in the target year without climate change policies and mechanisms. These countries had agreed to reduce their emissions by an assigned amount, but many of them experienced considerable slowdowns in their economies. International law can help determine whether hot air is now property to which the transition nations are entitled. Furthermore, should the notion of hot air be generalized to developing nations because they have not been responsible for generating the climate change problems. Christine Batruch, "Hot Air" as Precedent for Developing Countries? Equity Considerations, 17 UCLA J. ENVTL. L. & POL'Y 45-66 (1999). If hot air is property, how much should it be worth? What market should set the value? It is, in any event, highly unrealistic to think that western nations would willingly create sufficient funds to funnel billions of dollars into Russia for this commodity. Raustiala, supra note 385. At COP-6 an Indian professor raised the issue of ownership of the atmosphere, which can be both sink and source; he wondered who might get credit if the lower parts were declared to be a sink for methane. Kal Raustiala, Compliance and Effectiveness in International Regulatory Cooperation, 32 CASE W. RES. J. INT'L L. 387 (2000).

420. Drumbl, supra note 374, at 304. Choosing strategies that are driven by incentives does not obviate the need for several other important steps in international law. Terminology in the amendment to the Montreal Protocol illustrates that reliance on economic incentives creates its own set of implementation challenges:

The parties shall establish an Executive Committee to develop and monitor the implementation of specific operational policies, guidelines and administrative arrangements, including the disbursement of resources, for the purpose of achieving the objectives of the Multilateral Fund. The Executive Committee shall discharge its tasks and responsibilities, specified in its terms of reference as agreed by the Parties, with the co-operation and assistance of the International Bank for Reconstruction and Development (World Bank), the United Nations Environmental Programme, the United Nations Development Programme or other appropriate agencies depending on their respective areas of expertise.

Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, art. 10(5), 26 I.L.M. 1550.

421. Customary international law binds states to cooperate in the protection of the environment independent of economic exchanges. WORLD TREATIES FOR THE PROTECTION OF THE ENVIRONMENT, supra note 61. Principle 24 of the Stockholm Declaration declares,

International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries, big or small, on an equal footing. Cooperation through multilateral or bilateral arrangements or other appropriate means is essential to effectively control, prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all States.

United Nations Conference on the Human Environment, Stockholm Declaration, princ. 24 (1973) U.N. Doc. A/CONF.48/14/rev.l. The obligation to cooperate manifests itself as "a duty to act in good faith," to meet the mutual interests of the states directly concerned and the general interest of the international community. The North Sea Continental Shelf case, a judgment of the ICJ (Reports 1969, 47), held that the parties are under an obligation not merely to go through a formal process of negotiation but also to conduct themselves so that the negotiations are meaningful. WORLD TREATIES FOR THE PROTECTION OF THE ENVIRONMENT. supra note 61, at 27.

422. Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, art. 14(1), 993 U.N.T.S., 12 I.L.M. 1085.

423. Id. art. 14(2).

424. Id. art. 14(3).

425. United Nations Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818 (1992).

426. United Nations Framework Convention on Climate Change, May 9, 1992, art. 7.2(l), 32 I.L.M. 848 (entered into force Mar. 21, 2002).

427. Sept. 11, 1998.

428. Jan. 29, 2000.

429. The EU has called for trade sanctions against countries that do not ratify the POPs convention. Sara Thuria Rollin, Industry, Government to Review Plan to Impose Trade Restrictions in Treaty, 23 Int'l Env't Rep. (BNA) 315 (Apr. 12, 2000).

430. 22 U.S.C. § 1978(b)

431. International Convention for the Regulation of Whaling, Nov. 10, 1948, 161 U.N.T.S. 72; T.I.A.S. 1849.

432. Zen Makuch, The World Trade Organization and the General Agreement on Tariffs and Trade, in GREENING INTERNATIONAL INSTITUTIONS (Jacob Werksmann ed., 1996); Rollin, supra note 429.

433. North American Free Trade Agreement, Dec. 17, 1992, ch. 11, 32 I.L.M. 605.

434. Makuch, supra note 432, at 101.

435. Established in 1995 subsequent to the 1993 Uruguay Round of trade negotiations.

436. The U.S. Ethyl Corporation settled for $ 13 million a dispute with Canada wherein the company claimed that a Canadian fuels additive act was a blatant domestic protectionist measure. A NAFTA tribunal in November 2000 found Canada in breach of NAFTA's investment protection provisions for temporarily banning transboundary movement of wastes containing PCBs. The ruling found that the Canadian regulation treated an American company differently from Canadian businesses. 23 Int'l Env't Rep. (BNA) 901 (Nov. 22, 2000). Earlier that year an arbitration panel ordered the Mexican government to pay almost $ 17 million to an American company. The firm's plans to build a hazardous waste facility in San Luis Potosi were blocked by Mexican officials' conclusion that the site was environmentally unsound. Rossella Brevetti & John Nagel, Arbitration Panel Awards Metalclad Corp. $ 16.7 Million in Trade Dispute With Mexico, 23 Int'l Env't Rep. (BNA) 710 (Sept. 13, 2000). There have been a handful of other demands for compensation under the NAFTA regime. Sven Deimann, Investing in the Environment: A Green Agenda for the Millennium Round, 21 ENVTL L. NETWORK INT'L NEWSL. 35-42 (1999).

437. North American Free Trade Agreement, Dec. 17, 1992, ch. 7, 32 I.L.M. 605.

438. Id. ch. 9, art. 904(2), 32 I.L.M. 605.

439. Id. arts. 760, 762.

440. Richard H. Steinberg, Trade-Environment Negotiations in the EU, NAFTA, and WTO: Regional Trade Trajectories of Rule Development, 91 AM. J. INT'L L. 231 (1997).

441. Deimann, supra note 436, at 37.

442. Joost Pauwelyn, The Role of Public International Law in the WTO: How Far Can We Go?, 95 AM. J. INT'L L. 535, 577 (2001).

443. Dale Arthur Oesterle, Just Say "I Don't Know"; A Recommendation for WTO Panels Dealing With Environmental Regulations, 3 ENVTL. L. REV. 113-30 (2001); Steve Charnovitz, Rethinking WTO Trade Sanctions, 95 AM. J. INT'L L. 792 (2001).

444. Chris Kraul, Mexico Gets Tough in Turtle Wars, L.A. TIMES, Nov. 13, 1997.

445. Eyal Benvenisti, Collective Action in the Utilization of Shared Freshwater: The Challenges of International Water Resources Law, 90 AM. J. INT'L L. 384 (1996).

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