Compliance and Effectiveness

Question 1

Effectiveness

Answer 1

• how successful the actions that have been taken are in actually solving the underlying problem an MEA is designed to address

Question 2

Compliance

Answer 2

• MEA’s success in changing the behavior of those covered by the law to conform to its requirements
• extent to which parties are actually meeting their obligations

Question 3

Relationship Between Effectiveness and Compliance

Answer 3

• Prof emphasized importance of taking both into account

Not synonymous:
- could have “shallow” MEA w/ few obligations such that high compliance still achieves low effectiveness
- “deep” obligations mean that even low compliance could have high effectiveness

Question 4

Interactions Between Int and Domestic Law

Answer 4

• env protection tends to be more successful at domestic level (can bind those that disagree, have nat env agencies w/ significant staff, expertise + resources, + robust nat enforcement systems)
• one of key functions of MEAs = provide guidance for national level lawmaking + compliance
  -> int law generally made effective through process of “domestication” whereby international obligations are incorporated into the national legal system

Question 5

Enhancing Compliance

Answer 5

• implementation and domestication
• treaty design
  -> clarity
  -> legitimacy - participation and processes
  -> monitoring and reporting

Question 6

Responding to Non-Compliance

Answer 6

• dispute resolution
• accountability mechanisms
• roles of various actors
• indicators - and who is responsible

Question 7

Compliance Theories

Answer 7

Two main approaches:
- rationalist
- normative

Question 8

Rationalist Theories of Compliance

Answer 8

• focus on deterrence + enforcement as means to prevent + punish non-compliance by changing actor’s calculation of costs and benefits
• grounded in notion that states/actors act in their own self-interest (comply w/ MEAs when in their best interest to do so)

Question 9

Compliance and Self-Interest

Answer 9

• can be pure cost-benefit analysis
• some complexity though - nuanced + indirect impacts on self-interest
• broader level - recognition of interdependence among states (reputation, offers of financial aid or threats to loss of it)
• reputation matters b/c might impact ability to make future treaties, might want a seat at the table

Question 10

Incentives for States Agreeing to Deterrence Mechanisms

Answer 10

• essentially, discussed in class how states might have more incentive to agree to more formal compliance mechanisms in trade context than something like biodiversity because of the economic imperatives at play in trade law
• reciprocity of trade law - everyone has an interest in giving up a little bit so they can be sure the other parties will comply

Question 11

Rationalist Model Reaction to Non-Compliance

Answer 11

• make it more costly not to comply (ex of CITES - if you violate, you don’t get to participate in the trade market)
• increase monitoring, possibly combine w/ public revelation + shaming
• general deterrence - holding one to account shows others will be held to account
• part of calculation = figuring out what may speak to each country
• concept that managing can be part of a rationalist approach - if you lower the costs of compliance, you’re still changing the self-interested cost-benefit analysis

Question 12

What does the rationalist approach assume?

Answer 12

• monolithic idea of state interests in a rational manner, as opposed to political actors more interested in particular groups
• assumption that costs and benefits can accurately be predicted (not always the case)
• assumption that rational actor is otherwise capable of compliance + just choosing not to
• Prof did point out though that even w/o full knowledge, there may be some place for self-interest, + not really realistic to imagine self-interest is never taken into account

Question 13

States and Disaggregation

Answer 13

• discussed in class significance of disaggregating our notions of “the state”
• in contrast to idea of unitary actor, states often made up of many actors - compliance will depend on many different actors with their own individual interests (ranging from local actors charged w/ implementation to private corporations
• can still have a rationalist view, but becomes a bit more complicated as you start to break apart the unitary perception of the state

Question 14

Normative Theory of Compliance

Answer 14

• assumes good faith actors
• focus on cooperation + compliance assistance as means to prevent noncompliance
• idea that norms shape compliance - compliance resulting from sense of obligation rising out of some social norm rather than fear of sanctions

Question 15

Normative View on Reasons for Non-Compliance

Answer 15

• ambiguity
• capability
• temporal dimension
• capacity (knowledge of the rules, institutional capacity, financial or technological ability to comply)

Question 16

Normative Approaches to Non-Compliance

Answer 16

• financial transfers (q of additional aid vs existing, attaching strings to aid)
• technology transfers
• other forms of increasing capacity
• information strategies
• importance of learning from implementation of successful countries + sharing strategies (effectiveness of bottom-up + feeding out approach rather than just top-down aspect of int law)
• importance of common frameworks for reporting - can wind up facilitating compliance b/c allows countries to learn from each other

Question 17

Implementation and Treaty Design

Answer 17

Prof said implementation/domestication + treaty design = two sides of the same coin, but directed at different levels of governance
- implementation more inward-looking, going down to lower levels of gov + who is really responsible for non-compliance (private actors, local agencies)
- treaty design more directly about the state

Question 18

Int Env Law and Private Actors

Answer 18

• int env law ultimately regulates private actors at the end of the day - using interstate cooperation to regulate behavior of indivs + firms
• using international law to coordinate national responses to unsustainable private behaviors

Question 19

International Phases of Regulation/Implementation Cycle

Answer 19

• awareness raising
• negotiation primary rules
• compliance promotion
• monitoring and review of compliance (helps ensure integrity of regime)
• non-compliance response

Question 20

National Self-Reporting

Answer 20

• common mechanism in MEAs for monitoring + reviewing compliance
• BUT reports often lacking in terms of scope, detail, + accuracy
• some MEAs have recently developed systems for implementation review that provide for third-party verification + formal process to assess actual state of national compliance

Question 21

Int vs. Domestic Implementation - Q of Parallels

Answer 21

• domestic phases of regulation largely mirror international ones
• BUT the major exception is that at the domestic level, State exerts a vertical coercive power that is lacking both in scope and application at the international level

Question 22

Process of Domesticating International Commitments

Answer 22

• selecting a management approach (ex: product bans, emissions trading)
• developing effective reqs (chosen management approach implemented with specific legislation + regs)
• monitoring + inspection (determining compliance of regulated community)
• compliance assistance
• enforcement
• measuring + reporting performance
• assessment of effectiveness + adjustment

Question 23

Strategies for Effectiveness

Answer 23

• treaty design - important that parties know what is expected of them + that the obligations are legitimate
• compliance monitoring - can’t respond to noncompliance unless it’s detected
• deterrence strategies
• strategies for facilitating compliance
• dispute resolution procedures + compliance mechanisms
• discussed in txtbook, seem similar to Prof’s slide on enhancing compliance
• also think discussed in class how these measures intertwine (can’t just have one)

Question 24

Treaty Design - Clarity

Answer 24

• importance of making sure regulators + regulated parties know what is + isn’t acceptable
• challenging though - need for flexibility b/c of changing science (risk of open-ended commitments), + role of ambiguity in getting people to come to the table
• extent to which clarity requires agreement + predictability of future events/certainty
• many provisions written with ambiguity b/c there’s an extent to which we lack important info

Question 25

What things can we achieve clarity on to make implementation easier?

Answer 25

• procedures for addressing uncertainty + scientific developments
• clarity on end goal (clear target, though perhaps not articulated as something requiring perfect knowledge)
• procedural requirements (checkpoints along the way, measures for facilitating implementation)
  -> can combine procedural requirements with ways to monitor compliance, but then run into wrinkle that you DO need to periodically consider whether you’re still moving towards the desired result or just checking boxes

Question 26

Treaty Design and Legitimacy

Answer 26

• parties + regulated firms more likely to comply when regime obligations are viewed as legitimate
• process of negotiation must include effective participation of key states
• participation important (tricky though b/c may lose effectiveness if volume of voices is diluting the goals)

Question 27

Treaty Congestion

Answer 27

• risk that there’s so many MEAs + regimes that it’s difficult for less well-resourced states to participate effectively in all negotiations

Question 28

Deterrence and Sanctions

Answer 28

• think discussed in class value of having some kind of backstop to foster compliance
• Montreal Protocol, CITES - party can be treated as a non-party as a result of violations (looks more like reciprocity, states may be more willing to agree to this than formal dispute resolution mechanism or ICJ)

Question 29

NGOs and Compliance

Answer 29

• can help with accountability
• domestic litigation (states usually reluctant to provide for their own international liability in treaties)
• media campaigns
• importance of non-state actors
• BUT requires mechanisms that give NGOs + individuals access to info

Question 30

Aarhus Convention

Answer 30

• procedural provisions relating to transparency, public participation, access to info
• important for accountability + compliance

Question 31

Compliance Facilitation

Answer 31

• rely primarily on financial cooperation + technology transfer (complicated by role of industry)
• more common than sanctions in a UNEP review of MEAs

Question 32

Indicators

Answer 32

• help measure compliance and effectiveness -> mechanisms for assessing progress = critical, allow you to shift course as necessary
• importance of getting the data, developing a baseline, having benchmarks + targets you’re trying to assess, BUT also need to be able to assess the data
• might have one set of indicators calibrated to procedures + another for substance
• concept that this sounds more straightforward than it actually is

Question 33

Indicators - Issues to Consider

Answer 33

• capacity to measure one’s progress
• compliance vs. effectiveness
• baseline - need something to compare to know if you’re making progress
• potential for manipulation
• balance between simplicity of assessment + actual significance in terms of measuring progress (more simplistic indicator might not tell you as much about your progress)
• potential for variation among states + ways to achieve consistency (ex of protected land - defs vary among states)
• proxies - all proxies to some extent, need to be wary of what they are + are not saying
• ambiguity vs. clarity (still wind up w/ some policy choices + negotiations)
• legitimacy
• extent to which indicator guides parties in achieving compliance + effectiveness

Question 34

Measuring Indicators

Answer 34

• HUGE amount of work, capacity + activity goes into measuring indicators
• concept that capacity influences not just whether you’re achieving compliance + effectiveness, but whether you’re even able to measure it

Question 35

Q’s to Think About Re Indicators

Answer 35

• Do indicators attached to the goals speak to compliance, effectiveness, or both?
• Who is responsible for the indicators?
• How burdensome are the indicators?
• Are there other ways to measure this?
• Is there room for adaptation w/in the indicator?