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ESPM 169: Compliance, Implementation and Effectiveness

October 24, 2002

 Over the next few lectures we'll look at effectiveness of the CBD at several levels: international, national and local.

 Today: general factors important in the compliance, implementation and effectiveness; international level issues; unintended effects

1. International Regimes and some of the recent literature and observations

- international and national factors enhancing compliance

- how we measure and define these

- unintended effects

- measures to improve these

2. All this international activity: is it worth it? Is it too little, too late? Too slow?

- need for new frameworks; less top-down.

- at the same time, I’m not sure that complete decentralization is the right way either.

( Shiva cf. Agarwal et al)

In this section we’re talking about outcomes: good, bad, indifferent?

- later stage of the policy cycle: implementation and effectiveness

- how do we define and identify a regime outcome?

- focus of a lot of recent study of regimes

Particular Issue: environmental regimes are Regulatory Agreements – signatory states have to get private actors to change behavior

- cf. some other sorts of agreements that just involve adjustments of state behavior – e.g. lifting tariffs or changing weapons policies

1. Different Levels of Effectiveness: separate but linked problems

a. after signature: ratification by legislature and implementation into national law

- i.e. a law or an amendment to existing law is passed – such as the Clean Air Act or a Wildlife Preservation Act which contains the terms of the agreement, goals to be achieved, and penalties meted out if no compliance

- then up to private actors to comply, government agencies to advise and enforce

b. compliance: the extent to which states actually stick by the terms of the agreement

- need for monitoring

c. effectiveness:

i. that the agreement does what’s intended

ii. that private actors’ behavior is changed

iii. that the agreement makes a positive difference in the environmental problem

iv. that it’s efficient and equitable

 note these are the “ideal” criteria, very hard to reach

2. Measurement Issues

a. Data on environmental changes not in yet – takes years to affect the ozone hole, for instance

BUT: models can predict differences

b. Problems of exogenous effects

- e.g. FSU and ECE and ozone

c. Regime implementation is a long-term commitment and compliance can go up and down

d. So few regimes are actually implemented yet

 has tended to lead to a focus on compliance

- but this is problematic – as it leaves open the issue of stringency of regimes, for instance, or regimes that re-affirm status quo

What are the determinants of effectiveness?

- decision cf. structural variables - malleable cf. fixed

1. Endogenous: character of institutional arrangements

- regime design matters - Ron M. - intentional oil pollution at sea

- organizational effectiveness literature

- decision rules, enforcement, funds, revenue sources, flexibility

2. Exogenous: physical, biological, social conditions

- ecosystems

- power, interests, knowledge (new ideas? Change in balance of power?)

 also: domestic political will and capacity

3. Linkage Variables: fit between governance system and the environment within which it functions

- e.g. why ozone regime not such a good fit for CC

- coordination problems (polar bears), cf. cooperative or conflictual

4. Barriers to Effectiveness

 as some authors have put it, we enter international environmental negotiations – all of us, in fact – with a mixture of hope and skepticism

 non-compliance with international law is relatively rare: however it’s also rare that states are being asked to do so much and give up sovereignty

a. Collective Action Problems

b. Monitoring and Enforcement

c. State Capacity

- i.e. the ability a government has to change the behavior of its citizens

- note centrality of states here

- capacity has many dimensions: willingness and ability to change

- resources: financial

- resources: personnel and expertise

- regulatory strength (sort of related)

Example: Britain and HWT ban cf. an LDC and illegal waste dumping

d. The extent to which environmental issues are embedded in broader socio-economic issues – cuts across many sectors of society and economy

e. Finally, are we doing too little, too late??

 Despite these barriers, some studies point towards growing trends to comply with and/or implement international environmental agreements

 many authors also talk about the strengthened role of non-state actors and experts in enhancing compliance and building an international community concerned with environmental issues

- Litfin piece: she argues that the transnational community being built up now might in tern form the foundation for stronger regimes in the future (global civil society argument)

 public awareness and education (the very fact that I’m teaching this course)

 inventive mechanisms, market mechanisms, technology transfer. national reporting and the role of the internet

- so much more information is now available

5. Weiss and Jacobson: Factors Affecting Compliance

 whether countries adhere to agreements provisions and to the implementing measures they have implemented

Book: 8 countries and the EU: J, US, Russia, Brazil, India, China, Cameroon and Hungary

5 agreements (WHC; CITES; ITT; London Convention on dumping into ocean and Montreal)

- all in effect a long enough time to see results

Findings: membership become global and comprehensive; greater attention over time to strengthening supervisory measures; INGOs involved gained members, resources, sophistication

National findings: all states had environmental agencies by 1992; national research institutes and advisory committees to deal with implementation and compliance

 generally positive trend in compliance (except CITES: decline for some countries; Montreal not operative for some)

Diagram:

4 sets of factors affecting implementation, compliance and effectiveness

Note: feedback loops

1. Characteristics of Activity targeted by the agreement

2. Characteristics of Accord

3. International Environment: political agenda and awareness; leader states; international financial institutions and markets

4. Factors Involving the Country

 note malleable variables cf. causal variables (and parameters)

- things we can change!

6. The CBD Ten Years On

- how well is it doing?

- Framework Convention - not a set of detailed obligations

- still: report card mixed

 more species endangered; details around technology transfer still to be worked out; progress very slow

However:

a. many signatories have created national BD strategy and action plans - more than 100; has provided an important framework for development of national policies, especially for countries who don't have them

- education and awareness

b. international coordination improved among UNEP and CBD secretariat etc.

c. GEF has functioned pretty well; was strengthened and refinanced

 increased involvement of NGOs and other stakeholder groups

d. regime strengthening - Biosafety Protocol likely to go through

e. Access and benefit sharing agreements being developed - bioprospecting

 challenges: WTO, climate change, invasive species

7. Unintended Effects

- NYT magazine article

- Peluso and Clapp

a. Hitt: "Ecoman" (NYT magazine, August 4 2002)

- "privatization" of environmental enforcement

- "mercenaries" training park employees in Cambodia to protect wildlife - fully armed - group called "WildAid"

- "two experienced eco-spies, a former counter-insurgency spook in training and a wealthy heiress"

- why has such a group (not unique) developed?

- why is this worrying?

b. Clapp: illegal imports of CFCs into industrialized countries (US, Taiwan, Canada, Australia) – second only to illegal drug trade in ports such as Miami – perhaps 20% of CFCs in current global use bought on black market

- LDCs can supply; firms in DCs who don’t want to switch to more expensive equipment are the demand

- differentiated phase-out dates; inability to meet phase-out dates

- CFCs perfect for smuggling

- being addressed in Montreal framework, but very hard – not set up to deal with this issue

- similar problems with wastes and wildlife: goes underground, lucrative niche markets

- question: is this just temporary? Something we can live with for the moment? Or should we change phaseout dates?

c. Peluso: oppressive states use international commitments as an excuse to use violent means of repression against “troublesome groups” – e.g. “poachers” in Kenya, forest dwellers in Indonesia

- more generally, states use agreements to re-define resources and ownership to their own advantage; can facilitate a state’s control over civil society

- state can use financial aid from environmental organizations for this purpose

- very real problem: that international agreements can be used by states to legitimize their actions

- highlights that IEAs usually silent on the means used, and the equity of those means, to implement the terms of the agreement.

- also highlights the need for regime creators and supporters to think very carefully about how to implement “think global, act local” in these cases

8. Suggestions for Improvements (maybe a later lecture)

- international mechanisms

- national, subnational, non-governmental

International and Transnational Mechanisms:

- monitoring and sanctioning – improving international environmental law

- e.g. a “green” court

- transparency and data requirements

- capacity building – states and civil society

- funds, environmental aid, etc.

- technology transfer

Weiss and Jacobson handout on strategies: based on willingness and ability to comply

- sunshine: transparency; lots of opportunity to show off

- can also be used as “shaming” mechanism

- sanctions: for able but unwilling countries

- incentives

 mix to be available