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CIAO DATE: 3/99
The Sovereign-State System, International Law and Institutions, and Environmental Protection: Present Incompatibilities and Future Possibilities *
Colorado State University
International Studies Association
40th Annual Convention
Washington, D.C.
February 16–20, 1999
Draft Copy—Please Do Not Cite Without Permission of the Author
Introduction
With the birth of the nation-state system in 1648 the concept of sovereignty has played an integral role in the interactions between states. Over the past 350 years the basic tenets of sovereignty, that is a centralized power that exercises its lawmaking and law-enforcing authority within a certain territory (Morgenthau and Thompson 1985), have changed little. However, the belief that sovereignty is one of the principle forces guiding interstate relations has been repeatedly challenged by political and/or legal scholars. One of the most well-known challenges centers around an ever-evolving body of international law, coupled with a growth in the number of institutional and/or organizational structures to administer such arrangements, that has constrained state behavior in ways that are not necessarily consistent with the tenets of sovereignty. In other words, states enter into relationships that do constrain, or may likely constrain, their lawmaking and/or law-enforcing actions in either the international or domestic arena (or both). A prominent area of scholarship in which this critique has especially found favor is in the field of international environmental politics, or the study of the confluence of interstate relations and the protection of the natural environment.
But is such a critique valid, especially when examined through the lens of international environmental politics? This essay advances three assumptions that call into question the notion that state sovereignty is seriously being eroded because of the growing body of international environmental law and attendant institutions. Furthermore, it queries more generally the belief that present international responses for protecting the natural environment (e.g. international environmental agreements and their attendant institutions) are adequate.
The first assumption states that the operation of the nation-state system is incompatible with environmental protection because it places national interests over environmental interests. Although the international community has come to recognize that environmental problems transcend national boundaries and thus necessitate collective action (Sands 1994), sovereignty ultimately weakens the commitment to such action by placing the needs of individual states ahead of the needs of the community of states and, ultimately, the environment. 1
The second assumption states that the institutional structures accompanying environmental agreements fall well short of the mark in securing real environmental protection because their design and operation ultimately reflect national interests over environmental stewardship. This outcome is due to the fact that states are not only parties to environmental agreements but also their principle authors. Because collective action requires collective bargaining the individual preferences of states must be taken into consideration when negotiating any type of international convention and/or institutional arrangement. If such preferences are unacceptably ignored or trespassed upon by the negotiating parties than reaching agreement among them will be difficult. Lamborn (1997) suggests that the more a collective policy diverges from a member’s preference orderings the less willing that member will be to take political risks in an effort to achieve policy goals. As for the phrase “real environmental protection,” I am talking about the ability of human beings to secure an ecological steady-state in which anthropogenic inputs (pollution) and outputs (harvesting of resources) to natural ecosystems are in balance with those systems’ natural regenerative processes.
The third assumption states that while the sovereign-state system will be with us for the foreseeable future, changes can be made within the system that will substantially bolster the chances for real environmental protection. Thus, while the concept of sovereignty will continue to play a prominent role in the relationship between states and the environment, its inherent emphasis on national self-interest can be re-directed in ways that lead to more environmentally secure outcomes, provided that states allow it.
Assumption One: The operation of the nation-state system is incompatible with environmental protection because it places national interests before environmental protection.
Effective environmental protection demands effective collective action. But more importantly, it also demands that states temper their national interests if those interests are ecologically incompatible with natural processes. Regarding collective action, responses to global environmental problems are usually founded in international law (Dowdeswell 1994). Philippe Sands comments that “international law and international organizations provide the basis for cooperation and collaboration between various nations in their efforts to protect the local, regional and global environment” (1994:xvi). In order to secure such protection, therefore, international law must not only reconcile the fundamental independence of each state within an inherently interdependent natural environment, but also protect areas beyond the territorial jurisdiction of any one state (Sands 1994).
But is such an outcome possible in a world of sovereign states? Fifty years ago Morgenthau raised the question in Politics Among Nations whether or not it is possible to assume that international law imposes legal restraints upon individual nations when at the same time national sovereignty precludes these same nations from being subject to legal restraints. Morgenthau answered this question by positing that sovereignty is only incompatible with a strong and effective (centralized) system of international law: it is not at all inconsistent with a weak and ineffective (decentralized) international legal order. This is because “sovereignty is the very source of that decentralization, weakness, and ineffectiveness” (Morgenthau and Thompson 1985:329). Therefore, according to Morgenthau, international law is a decentralized legal order in a dual sense: its rules are only binding upon those nations which have consented to them; the rules that are binding by virtue of consent are vague, ambiguous, and so qualified by conditions and/or reservations as to allow individual nations a great deal of latitude as to how to comply with them.
More recent writings back up Morgenthau’s position, although they put emphasis on the supposition that states will live up to their international commitments. Gerhard von Glahn argues that “international law should be regarded as true but imperfect law” (1986:4). This is because the institutional mechanisms for both its development and enforcement are inadequate and incomplete as of yet (von Glahn 1986). However, von Glahn (1986) believes that while international law may be considered a primitive form of law, such a supposition is somewhat irrelevant in light of the general obedience accorded the law.
Philippe Sands writes that states “play the primary and dominant role in the international legal order, both as the principal creators of the rules of international law and the principal holders of rights and obligations under those rules” (1994:xvii). With respect to international environmental law, Sands questions whether or not it will have a significant impact on governmental and human behavior. He argues that the limited implementation and enforcement of environmental conventions suggests that the body of law is still in its formative stages (Sands 1994). Furthermore, he notes that such lawmaking is decentralized, often reactive and ad hoc in nature, and vulnerable to the vagaries of political, economic, and scientific phenomena. Much like Morgenthau, Sands submits that the rules of international environmental law have developed in pursuit of two principles that pull in opposing directions. The first is that sovereignty reflects the pre-eminent position of states in the international system. The second is that states must not cause damage to the natural environment, thereby placing limits on the exercise of their sovereignty (1994). But, again, is such an outcome possible in a world of sovereign states?
The Rio Declaration: Sovereign Rights vs. Environmental Protection
A relatively recent example of the legal quandary posited by the nexus of sovereignty and environmental protection can be found in the Rio Declaration on Environment and Development, which was adopted by the UN Conference on Environment and Development (UNCED) on June 13, 1992. According to Elizabeth Dowdeswell, former Executive Director of the United Nations Environment Program (UNEP), the UNCED “has provided fundamental guidance for, and created a new dimension to, future international action in the field of environmental law” (1994:ix). But such an optimistic assessment of the UNCED, and especially the Rio Declaration, is questionable. For example, Principle 2 of the Rio Declaration declares that “states have... the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies,” provided that such activities “do not cause damage to the environment of other states or of areas beyond national jurisdiction” (emphasis added). Although the latter part of Principle 2 might sound environmentally enlightened, its wording in toto is rather troubling for a number of reasons. First, it places sovereign concerns over environmental protection within areas under the territorial jurisdiction of any given state. Second, the environmental emphasis within the latter part of Principle 2 is “neutralized by the stress on national development policies” (Pallemaerts 1994:6). Thus, a state’s responsibility in the exercise of its sovereign right to exploit its natural resources is not measured first and foremost in terms of its environmental obligations, but rather subordinated to the dictates of its economic development policies (Pallemaerts 1994). Finally, the wording in Principle 2 “reinforces the view that it is ultimately the responsibility of each state to identify its own priorities, and adopt national environmental and developmental policies based on those priorities” (Porras 1994:32). Such wording appears to be drastically at odds with the second assumption advanced by Sands (1994) regarding the development of international environmental law: states must not cause damage to the natural environment, thereby limiting the exercise of their individual sovereignty.
Additional Principles of the Rio Declaration that fail to bridge the legal gap between sovereign rights and environmental obligations are numbers 1, 3, and 4. Principle 1 states that “human beings are at the center of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.” Notice that humans beings, and not the environment, is the central focus here. While this is not surprising given that nation-states are human constructions, Principle 1 fails to acknowledge that human life, let alone productive human life, is totally predicated upon natural phenomena. This begs the question of how humans can ultimately be the central concern rather than nature? Also troubling in Principle 1 are the words “productive life.” According to Pallemaerts (1994), such wording suggests that the right to a healthy life in harmony with nature is conditional upon the presence of productivity. “Although the Rio Declaration...grants [humans] the right to a ‘healthy life in harmony with nature,’ this right is placed explicitly within the perspective of a production-oriented logic” (Pallemaerts 1994:9).
Principle 3 states that “the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.” Principle 4 focuses on sustainable development: “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.” However, juxtaposing these two Principles raises confusion as to which type of development ultimately takes precedence, development that is not sustainable or development that is sustainable. Sustainable development has been defined by The World Commission on Environment and Development (The Brundtland Report) as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs” (1987:332). Sustainable development therefore places an environmental obligation upon present generations to use natural resources in a manner that does not compromise the development needs of future generations. But the confluence of Principles 3 and 4 clouds this obligation. According to Porras:
The juxtaposition of the two principles [3 and 4] suggests that not all development need be ‘sustainable’ as the right to development set out in Principle 3 is unconditional, except to the extent that the purpose of the right to development is described as ‘to equitably meet the developmental needs of present and future generations.’ In considering the relationship between development and environment, the Rio Declaration thus appears to give pre-eminence to development. Environment and development are equal partners in ‘sustainable development’ but the right to development comes before sustainable development” (1994:25).
Putting it more succinctly, the sovereign-state system elevates the realization of national self-interest over environmental protection, regardless of which generation(s) such protection is supposedly accorded to.
Closing Remarks
The review of the Rio Declaration as part of assumption one draws attention to the fact that not only is sovereignty alive and well in the negotiation of international environmental agreements, but it also subordinates environmental protection to national self-interest. Such an outcome is not surprising in a world of independent states, but it will most assuredly produce some form of negative environmental consequences. The daunting question is, of course, how severe those consequences will ultimately be. Furthermore, the Rio Declaration demonstrates that the international community still has yet to make the hard choices needed for realizing a strong and effective (centralized) system of international law. In other words, a system of law that can successfully infringe upon sovereign interests in ways that will provide real environmental protection. Not surprisingly, the Rio Declaration continues to reflect the self-interest and short-term perspectives of national governments rather than workable global initiatives that move beyond sovereign concerns.
Assumption Two: The institutional structures accompanying environmental agreements fall well short of the mark in securing real environmental protection because their design and operation ultimately reflects national interests over environmental stewardship.
As argued under assumption one, a primary reason why international environmental law has failed to produce real environmental protection is because of the principle of sovereignty imbedded within the nation-state system. 2 Sovereignty serves as the legal basis for states to pursue individual and collective strategies that may ultimately trump environmental stewardship. As the Rio Declaration demonstrates, national development and economic policies ultimately take precedence over environmental policy, even though the Rio Declaration places environmental obligations upon its signatories. Not surprisingly, one usually finds similar outcomes when reviewing the design and operation of other environmental agreements and institutional structures. This is because sovereignty trespasses upon institutional structures in much the same way as it does the international legal order, thereby producing regimes that are often legally weak and environmentally ineffective.
Defining an Environmental Institution
Institutions have been defined as “persistent and connected sets of rules and practices that prescribe behavioral roles, constrain activity, and shape expectations. They may take the form of bureaucratic organizations, regimes (rule-structures that do not necessarily have organizations attached), or conventions (informal practices)” (Keohane et. al. 1993:4-5). Regimes have been defined as “sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations” (Krasner 1983:2). Environmental regimes (also referred to as resource regimes) have been defined as “social institutions that serve to order the actions of those interested in the use of natural resources” (Young 1982:15-16). Although there is overlap in the conceptualization of institutions and regimes, a key point worth noting is that both structures are based upon recognizable social conventions (Young 1982). With respect to international environmental regimes, such conventions usually take the form of bilateral or multilateral agreements that seek to address a specific environmental problem or problems.
Notice also in these definitions that the preferences and/or expectations of the actors involved play an integral part in the formation and execution of these arrangements. This is not surprising given that the predominant actors involved in the creation of international institutions/regimes are state agents. And since these agents represent the national interests of their respective states, sovereign concerns inherently play an important role in the structure and function of these regimes.
Determining Institutional Effectiveness: International Politics vs. the Environment
Reviewing the literature on the effectiveness of resource regimes offers insights into the nexus of international politics and the environment. One of the questions posed most often within this area of study is whether or not regimes matter. In seeking to answer this question, emphasis is placed on the formation and/or operation of environmental institutions and the influence such collectives have on actor behavior. For example, Stokke and Vidas (1996), argue that because regimes are social institutions, “to state that a regime has had an impact implies that it has affected the behavior of actors (p.15, emphasis in the original). Young (1996, 1994) submits that there are clusters of variables that can influence actor behavior at different stages of the life of a regime including the solving of problems, goal attainment, behavior modification, implementation and compliance, constitutive practices such as the expenditure of time, energy, and resources, and issues of efficiency and equity. Keohane et. al. (1993) suggest that effective institutions can have an impact on the political process at three key points in the negotiation and implementation of environmental policy: agenda setting, international policy formulation, and national policy development. The authors refer to these functions as the “three C’s:” concern, contractual environment, and capacity.
Other analysts such as Mitchell (1994) and Chayes and Chayes (1993) have looked specifically at actor compliance as a way of assessing the effectiveness of environmental institutions. In a similar vein, Andresen (1995), Jacobson and Brown Weiss (1995), and the United States General Accounting Office (1992) have examined the domestic implementation practices of states in fulfilling their international environmental obligations. Still other authors such as Greene (1993) and Ausubel and Victor (1992) have concentrated their energies on assessing the effectiveness of treaty verification mechanisms.
Notice that all of the aforementioned approaches focus predominately on the political side of these arrangements, that is their formation and operation, and not on the actual environmental benefits that flow from them. This is not surprising given the fact that all of the authors embrace a state-centric approach to regime assessment whereby the accommodation of divergent national interests lie at the heart of environmental institutions. Therefore, the effectiveness of environmental regimes is predicated upon the degree to which these arrangements influence and/or modify political behavior rather than whether or not they are delivering real environmental protection. This is problematic in that it assumes that modifying the political behavior of states will necessarily translate into environmental improvement. But this can be a misleading assumption at best and a false assumption at worst. A number of prominent regime scholars concur with this critique. For example, Young writes that:
today, we are increasingly aware of the need to broaden our perspectives to include a sustained effort to explain and predict the consequences flowing from individual regimes once they are in place. In part, this emerging interest in regime effectiveness arises from the fact that there is a steadily growing set of regimes that have been in place long enough to produce significant records to examine (1996:4)
Stokke submits that “...questions about regime consequences were not subjected to systematic empirical inquiry until the late 1980s, and we are still in the early phase of this work because a number of the early, transnational collaborative projects on regime consequences have only been recently completed or are approaching finalization” (1997: 33). Finally, Bernauer suggests that our efforts to determine the success of environmental institutions “is still in its infancy, not least because it involves daunting evaluative and analytical problems” (1995:352).
Institutional vs. Environmental Effectiveness: Rethinking the Nexus of International Politics and Environmental Stewardship
One of the more ecocentric definitions of environmental institutions comes from Bernauer, who defines these arrangements as:
sets of international regulations and organizations that were intentionally established by preexisting actors (states) through explicit, legally or politically binding, international agreements in order to regulate anthropogenic sources of negative externalities affecting the natural environment (1995:352).
What is laudable about Bernauer’s definition is that it attempts to move beyond the political dimensions of environmental institutions (e.g. state actors, legally binding agreements, implementation and compliance) by incorporating an ecocentric criterion: the regulation of anthropogenic sources of pollution. On the other hand, it begs the question of whether or not such arrangements will actually regulate damaging anthropogenic externalities in environmentally benign ways. Because of this uncertainty we are, therefore, presented with an institutional conundrum: If an environmental institution (using Bernauer’s defintion) is not regulating anthropogenic activities in ways that alleviate or eliminate negative environmental externalities than can it, by definition, be classified as an environmental institution? Logic dictates that a true environmental institution would not only function properly on some agreed-upon institutional level but would also provide a certain measure of tangible environmental benefits. Although there will always be disagreement over what constitutes an acceptable level of environmental improvement, nonetheless a necessary first task is to move beyond strictly state-centric interpretations of effectiveness by establishing measurable ecocentric parameters that will allow us to determine if these arrangements are yielding more than just political benefits.
As suggested earlier, this shortcoming has been a common problem in the assessment of environmental regimes. Consequently, our claims about the effectiveness of many resource regimes may indeed be premature or incorrect. Hilary French notes that while limited advances have been made by some environmental institutions in the fight against pollution, “the overall state of the global environment continues to deteriorate at an alarming rate” (1992:157). Couple this with the fact that there are more than 130 international environmental conventions in operation today (Haas and Sundgren 1993), and one cannot help but suspect that many of these agreements may not be producing the kinds of environmental improvements that their creators would have us believe. Thus, while such arrangements might be yielding institutional benefits to their members in terms of political, economic, or social dividends, their environmental worth is an entirely different matter.
Let us suggest that that it is possible to have institutional effectiveness without environmental effectiveness. The construction of a 2 X 2 matrix presents us with three additional effectiveness possibilities: high rates of both institutional and environmental effectiveness; low rates of both; or, a low rate of institutional effectiveness and a high rate of environmental effectiveness. Offering these findings diagramatically produces the following table:
| Environmental Effectiveness | ||||||
|---|---|---|---|---|---|---|
| low | high | |||||
| low |
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Institutional Effectiveness |
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| high | ||||||
Because of the uncertainties surrounding the ecological effectiveness of environmental institutions it therefore becomes necessary to analytically distinguish between institutionally effective performance and environmentally effective performance. 3 Using Bernauer’s definition as a conceptual building block, we can posit that institutional effectiveness is the ability of international agreements and their attendant regulations and organizational structures to function as intended by their creators. The caveat here is that the proper functioning of such arrangements (institutional effectiveness) is not necessarily coterminous with environmental effectiveness. As Kuttting notes, “institutional effectiveness is mostly concerned with the performance of the institution in question while environmental effectiveness as a concept makes the eradication or prevention of environmental degradation its priority” (1998:7).
However, while Kutting’s dichotomous treatment of effectiveness is useful in separating political performance from environmental performance, it can be improved upon. Specifically, it needs to incorporate the fundamental causes of environmental degradation: deductions (or outputs) to natural systems in the form of anthropogenic exploitation of living and non-living resources; and, deposits (or inputs) to natural systems in the form of anthropogenic contaminants consequent with human enterprise. An important consideration here is that inputs may or may not be associated directly with resource exploitation. For example, the erection of a scientific station in the Antarctic will most assuredly contaminate the natural environment to some degree, but the operation of that station may not be directly involved in the exploitation of living or non-living resources per se. While Kutting argues correctly argues that the defilement of nature is grounded in social and economic forces such as production and power, her account dismisses the environmental impacts of anthropogenic activities that do not necessarily reflect such forces. 4 For example, if I take an automatic weapon and open-fire on an emperor penguin rookery my behavior may be motivated by neither economic forces nor power considerations; I might simply enjoy killing penguins. 5 However, my actions have most assuredly led to a deduction in the number of living emperor penguins. One of the fundamental requirements of any successful environmental institution (presuming that it prohibits such conduct) is to prevent the nationals of the states party to such arrangements from engaging in environmentally harmful behavior. Ultimately then, effective environmental regimes marry institutional functioning (e.g. political, economic, social) with observable environmental outcomes. Or putting it in a more state-centric vein, the marriage of national interests and ecological improvement.
Defining Environmental Effectiveness: Bringing the Environment to the Forefront
To reiterate, environmental degradation is the product of two fundamental forces: anthropogenic deductions and deposits to natural ecosystems. Because of the synergistic relationship between these outputs and inputs, and the simple fact that all human enterprise generates both kinds of externalities, it is imperative that our definition of environmental effectiveness be sensitive to these two interlinking phenomena. Building on Kutting’s definition, let us posit that environmentally effective institutions eradicate or alleviate anthropogenic deductions and/or depositions to an ecological system or systems in balance with the earth’s natural regenerative processes. Such a definition encapsulates not only reductions in anthropogenic deductions and deposits to ecological systems, but also demands that those reductions are in harmony with ecosystemic processes. What this ultimately suggests is that environmentally effective institutions will be those that successfully juxtapose the ecological impacts of anthropogenic activities on planetary ecosystems with the regenerative capabilities of those ecosystems for reversing the effects of such impacts. Central to this line of reasoning are thoughts like: “the fish catch does not exceed the sustainable yield of fisheries...carbon emissions and carbon fixation are in balance...[and] the number of plant and animal species lost does not exceed the rate at which new species evolve (Brown 1996:8).
Also connected to this definition is the factor of time: the length of time taken to negotiate environmental agreements, the length of time taken to implement them, and the length of time it takes to see real environmental improvements emerging from their operation. Treating time horizons as an integral part of effective environmental conventions has all too often been neglected in the study of regime effectiveness (Kutting 1998). Depending on the magnitude of the impact and the methods employed, certain forms of environmental degradation may indeed be irreversible. Furthermore, the accumulation of non-biodegradable matter within ecosystems may ultimately (and very ironically) position humanity’s survival against the environmental demons it has created in the forms of ever-increasing toxic and non-toxic waste streams in it is quest for modern, well-developed societies. Because of these potential outcomes there is a certain degree of urgency related to the concept of effectiveness (Kutting 1998). Kutting argues that
on the institutional level, this means that the time frames of identification of the environmental problem in question—agreement formation, signature, ratifications, entry into force and finally implementation on various levels—and the speed with which this process is performed have an important bearing on both institutional and especially on environmental effectiveness (1998:9).
Embracing the same line of thought, Susskind (1994) posits that one of the primary reasons signed international environmental agreements produce little (if any) real improvement is because it often takes too long to reach agreement on the problem in an environmentally timely manner. This time lag produces situations whereby “environmental protection strategies that made sense when they were first proposed represent ‘too little, too late’ by the time they are implemented. The problem may have reached entirely new (and very different) proportions in just a few years” (Susskind 1994:14). What both Susskind and Kutting are suggesting is that environmental problems need to be addressed within real-time horizons (right here, right now). Pushing off such commitments to some future time-horizon will most likely produce inadequate agreements: what is relevant to fixing the problem now may be completely irrelevant in the future. Not surprisingly, such outcomes may be difficult to avoid because of the sovereign nature of the nation-state system. It is not uncommon for states to take years to negotiate, ratify and implement environmental conventions. Such delays are almost always imbedded in the duel between the preservation of states’ rights and the potential trespass upon those rights in the form of collective action.
Closing Remarks
Under assumption two it has been argued that the institutional mechanisms accompanying international environmental agreements fall short of offering real environmental protection because they ultimately reflect political consideration rather than ecological concerns. Again, this is not surprising given the fact that state actors play the pre-eminent role in the formation and execution of these arrangements. A review of the literature on regime effectiveness reinforces this point with its emphasis on political variables and outcomes (e.g. implementation, compliance, behavior modification) rather than ecological variables and outcomes (e.g. pollution, conservation, ecosystem protection). If the international community is to ever witness the operation of truly effective environmental institutions than it must begin to subvert the paradigm of sovereignty by placing ecological concerns at least on a coequal level with political concerns when forging collective responses to environmental problems. While environmental institutions are ultimately a marriage of political and environmental concerns, the latter must be accorded the same level of prominence as the former if real environmental protection is truly going to manifest itself.
Assumption Three: While the sovereign-state system will be with us for the foreseeable future, changes can be made within the system that will substantially bolster the chances for real environmental protection.
The international community of sovereign states is alive and well as humanity approaches the new millenium. The drive to assert and preserve national independence has reached a fever pitch in many parts of the world, thanks in part to the dissolution of the Soviet Union. Indeed, the desire for statehood among peoples such as the Palestinians, the Chechens, the Kosovars, and the Kurds continues to play a major part in the daily life of the international community. Rather than wither away as the neoinstitutionalists and neofunctionalists (among others) would have us believe, the drive for national sovereignty appears to be as healthy as ever.
However, are statehood and environmental protection inherently incompatible with one another? Or can international phenomena such as law and institutions provide the mechanisms necessary for ecosystem protection? As I have argued earlier under assumption one, the concept of sovereignty is synonymous with national self-interest rather than collective interest. And because environmental problems do not respect sovereign borders collective action is, therefore, a necessary condition of effective environmental initiatives. But while the operation of the nation-state system does at times impede the successful formulation and implementation of environmental initiatives, it is not illogical to suggest that effective environmental outcomes can be secured in a world of sovereign states, provided that states want them. A major caveat to be sure, but not an insurmountable one. Ultimately what will be required is a reordering of state priorities so that the environment is elevated to a position of at least coequal importance with other traditional priorities such as development and security. While a paradigm shift of this magnitude might seem impossible when juxtaposed with the self-help nature of the sovereign state-system, it is entirely possible that human civilization might not have much choice, especially if the planet is starting to bump up against its ecological limits. Embracing this possibility then, some propositions are advanced below that look to explore potential pathways for engineering such a paradigm shift.
Proposition #1: Subvert the “nation before environment” paradigm.
If states want real environmental protection than they must begin to make the hard choices that place the environment at least on a coequal level with other national concerns such as development and security. However, as the adoption of the Rio Declaration amply demonstrates, nations are more concerned with securing development than protecting the environment. Indeed, the Rio Declaration reaffirms the centrality of national self-interest by declaring that states have the sovereign right to develop their national infrastructures as they deem appropriate. Nonetheless, it is possible to reorder the nation vs. environment relationship provided that states want such a reordering. Perhaps one of the most cogent pathway for getting states to reexamine the nexus of the state/environment relationship is to frame the environmental problematic in terms of national security: environmental degradation poses potential dangers to national survival. While such a suggestion is not new, it is apparent that states have yet to be convinced that the advancement of strong environmental initiatives at the local, regional, and global levels is ultimately in their best interest. 6 Indeed, some proponents of this “environmental security” approach argue that “only by framing the environmental problematique in security terms can the necessary level of governmental attention and social mobilization be ensured” (Conca and Dabelko 1998:282). Or as Gleick notes:
A nation or region bent on protecting its “security” in the future will have to concern itself as much with flows of the planet’s geophysical capital as it does today with the flows of economic capital; as much with the balance of atmospheric trace gasses as with the balance of military power; as much with monitoring the Earth’s vital signs as with monitoring the arsenals of destruction (1991:19).
However, the concept of environmental security is not without its detractors, most notably Daniel Deudney. According to Deudney (1998), framing the environmental problematic within the rubric of national security betrays the core values of environmentalism and creates confusion as to the ecological tasks at hand. He adds that “it seems doubtful that the environment can be wrapped in national flags without undercutting the ‘whole earth’ sensibility at the core of environmental awareness” (1998:309). Although such a statement is attractive in that it draws attention to the global nature of environmental problems (e.g. problems that do not respect sovereign borders), it neglects the fact that not all environmental initiatives are global in nature. Regional and local arrangements for protecting the environment are a common phenomena, with most of these being negotiated by state actors. One of the most notable examples of a regional environmental arrangement is the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), which prohibits the exploitation of oil, gas, and other minerals in the Antarctic and provides “comprehensive environmental protection...to one-tenth of the planet’s surface” (The Antarctica Project 1998:1). Although the Madrid Protocol is a regional arrangement “wrapped in national flags,” it ultimately provides environmental benefits to the larger international community by placing the Antarctic off-limits to industrial development. It also highlights the fact that states can elevate the environment to a more prominent place on the international agenda if they allow it. 7
Proposition #2: States must begin to negotiate international environmental agreements with real “teeth.”
One of the glaring weaknesses within the current body of international environmental law is the crafting of agreements that are loaded with hortatory language, qualifiers and conditions, and vague environmental obligations. Although it is frequently argued that in order to secure agreement among states such outcomes are an unavoidable condition of the bargaining process, the fact of the matter is that the environmental problem still (or problems) remains. Consider the following assessment of the negotiations behind the 1992 UN Framework Convention on Climate Change:
...the Convention represents a carefully balanced compromise. Many of the Convention’s provisions do not attempt to resolve differences so much as ‘paper them over,’ either through formulations that preserve the positions of all sides, that are deliberately ambiguous, or that defer issues until the first meeting of the Convention of the Parties (COP). Although such devices may make it impossible to determine what a provision means, the ambiguities are constructive: by making agreement possible, they allow further discussions to be carried out by other means, particularly in the process of interpreting and implementing the Convention (Bodansky 1994:212).
Herein lies a fundamental explanation as to why international environmental law has yet to deliver real environmental protection: poorly crafted agreements. Negotiating agreements that are environmentally vacuous does little, if anything, to seriously confront the solving of environmental problems. Susskind argues that while the signing of formal agreements may seem like a tremendous victory for those directly involved in treaty negotiations, “for the rest of us, it would be a mistake to measure success in terms of anything less than tangible environmental improvements, regardless of the time or effort it took to hammer out the legal accords” (1994:12). R. Tucker Scully, Director of the United States Office of Oceans Affairs, offers a more blunt assessment of the problem by suggesting that there has been a “devaluing” of international environmental negotiations since the UNCED. In his opinion, environmental agreements have become “press releases” to solve diplomatic and/or political problems rather than documents with real substance in them (personal communication, 8 July 1997).
A related issue has to do with the implementation of, and compliance with, international environmental agreements. A United States GAO study completed in 1992 found that the implementation of environmental agreements could be strengthened by improving the quality and quantity of the implementation information submitted by the contracting parties. With respect to compliance, Sand notes that “there are wide differences in the quality of national performance reports as a means to monitor compliance with international agreements and instruments” (1992:13). However, Chayes and Chayes (1993) point out that this problem might be difficult to avoid. According to them, international treaties must adequately accommodate the divergent interests of the actors involved if compliance is to be fully realized. The problem here is that the potential for arriving at lowest-common-denominator formulae is ripe. But, the rectification of environmental problems will most likely require states to be held to a higher standard of behavior than they might otherwise be accustomed to, or quite possibly, comfortable with. Such an outcome will, therefore, inevitably be necessary if environmental agreements and their attendant institutions are ever going to provide truly effective environmental protection.
Proposition #3: Secure the full involvement of Non-Governmental Organizations at all stages of the negotiation, implementation, and assessment of international environmental agreements and institutions.
Although the rise in the number of international environmental NGOs participating in the negotiation and operation of environmental conventions and institutions has expanded dramatically over the past twenty five years, such participation has been varied both across and within different legal and institutional structures (Raustiala 1997). This is because “NGO participation remains a privilege granted and mediated by states” (Raustiala 1997:724). The arguments against NGO involvement in environmental regimes include the potential loss of state sovereignty, policy gridlock due to the variegated agendas of NGOs, and the vigorous push for rigid environmental standards on the part of NGOs that may ultimately drive states away from the bargaining table. However, Raustiala (1997) argues that active NGO participation actually enhances the abilities of states to regulate global accords. Among the benefits reaped by states through NGO participation are: additional sources of environmental data; the participation of expertly staffed organizations that devote considerable effort to policy research and development; the preparation and presentation of information, evaluations, and legal opinions, usually free of charge; a maximization of the policy options available to states courtesy of the vast network of data sources employed by NGOs; cost effectiveness (Raustiala 1997). One author notes that at the Preparatory Committee negotiations for UNCED the “United States delegation in public and private sessions regularly offered as support for its position the consultation with and the endorsements of US environmental NGOs” (Princen 1994:35).
But perhaps more important than the provision of information and opinions is the ability of NGOs to monitor the performance of states as they go about fulfilling their environmental obligations. According to Raustiala, “certain NGOs are well positioned to provide independent assessments of individual states’ compliance records as well as other data useful or necessary for international environmental cooperation” (1997:728). Although not all states welcome such an arrangement, nonetheless states can obtain “useful information and an independent check on the official self-reports given by the individual governments themselves” (Raustiala 1997:729). In this way NGOs can contribute to the more effective implementation and enforcement of environmental conventions. Princen (1994) writes that states may find NGO penetration attractive when illicit activity abounds and governments are unable to control it. Sands (1994) notes that for a variety of reasons states remain unwilling to bring international claims to enforce environmental rights and obligations. Such reluctance, therefore, serves to reinforce the role of both IOs and NGOs in the enforcement process:
Efforts to broaden the category of entities authorized to identify violations and take measures to remedy them...will greatly increase the pressure on States and other members of the international community to comply [with environmental accords] (Sands 1994:xlvii).
Or, as Princen, Finger, and Manno write:
A critical feature of NGO intervention is thus to link the essential knowledge base (scientific and earth-centered) to the world of politics, to translate biophysical needs into choices a wide range of actors can make at many levels. If NGOs do not make these linkages and translation, they may still operate effectively as lobbyists or green parties...but they are not likely to arrest those processes that have local and global elements and are multi-level and multi-actor and that place a premium on specialized forms of knowledge, which, arguably, characterize the global ecological crisis” (1994:223).
Concluding Remarks
Under assumption three it has been argued that while the sovereign-state system will be with us for the foreseeable future, changes can be made within the system that will substantially bolster the chances for real environmental protection. Among the propositions advanced are to subvert the “nation before environment” paradigm, craft environmental agreements with real “teeth,” and involve NGOs at all stages of the negotiation, implementation, and assessment of international environmental agreements and institutions. While the number of propositions presented here is albeit small, nonetheless they provide workable solutions for strengthening the nexus between the sovereign-state system and the natural environment. While the doctrine of sovereignty makes it relatively easy for states to resist changes to the “nation before environment” paradigm it is ultimately in their best interest to reject such a position. This is because the laws of nature predicate the survival of living organisms on the viability of planetary ecosystems. Thus, the doctrine of sovereignty can be equally employed in both the degradation and the protection of the natural environment . The catch is that it is ultimately up to sovereign states to decide which way it shall be.The propositions advanced here seek to nudge states along in the latter direction.
Conclusions
This essay has advanced three assumptions about the international system that explore the sovereign state/natural environment nexus. Furthermore, the essay queries more generally the belief that present international responses for protecting the natural environment (e.g. international environmental agreements and their attendant institutions) are adequate. The first assumption states that the operation of the nation-state system is incompatible with environmental protection because it places national interests over environmental interests. The second assumption asserts that the institutional structures accompanying environmental agreements fall well short of the mark in securing real environmental protection because their design and operation ultimately reflects national interests over environmental stewardship. The third assumption posits that while the sovereign-state system will be with us for the foreseeable future, changes can be made within the system that will substantially bolster the chances for real environmental protection. Thus, while the concept of sovereignty will continue to play a prominent role in the relationship between states and the natural environment, its inherent emphasis on national self-interest can be re-directed in ways that lead to more environmentally secure outcomes, provided that states allow it.
A set of three propositions was also advanced that explores potential pathways for getting states to re-think the state/environment nexus. The first one proposes that states must subvert the “nation before environment” paradigm. The second one proffers that states must begin to negotiate international environmental agreements with real “teeth.” Finally, the third proposition calls on states to secure the full involvement of NGOs at all stages of the negotiation, implementation, and assessment of international environmental agreements and institutions. While the list of propositions is albeit small, nonetheless it offers workable solutions for getting states to reexamine the linkages between the operation of the sovereign-state system and the degradation of the natural environment.
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Endnotes
*: Prepared for presentation at the 40th Annual Convention of the International Studies Association, Washington, D.C., February 16–20, 1999. Back.
Note 1: This is not to suggest that states do not engage in collective action. Rather, I am arguing that when the preferences of states clash each state will attempt to act in ways that preserve their individual interests first. Back.
Note 2: To reiterate, the phrase “real environmental protection” connotes the ability of human beings to secure an ecological steady-state in which anthropogenic inputs (pollution) and outputs (harvesting of resources) to natural ecosystems are in balance with those systems’ natural regenerative processes. Back.
Note 3: Gabriela Kutting reminds us that the distinction between institutional and environmental effectiveness is not completely separable: “Neither of the two types of effectiveness are exclusive in their approach and therefore the distinction between the two can only be made heuristically” (1998:7). Back.
Note 4: For example, whether or not hunter-gatherer societies or other types of subsistence communities are actually engaging in economic production (or some other form of production) for economic gain is open to interpretation. Producing food for personal survival vs. producing food for personal gain are two very different enterprises and cannot be assumed to be one in the same. Back.
Note 5: While the argument could be made that the motivation for my actions was to exert some form of power over emperor penguins, it is just as likely that my actions were the product of nothing more than socially deviant behavior. Back.
Note 6: For some competing perspectives on the concept of environmental security see Homer-Dixon (1998), Thomas (1997), Dabelko and Dabelko (1995), Meyers (1993), Dalby (1992), and Gleick (1991), among others. Back.
Note 7: It must be stressed that during the 1980s environmental NGOs played a pivotal role in getting the Antarctic nations to reverse their position on adopting a minerals regime for Antarctica and instead replacing it with an environmental protection regime (the Madrid Protocol). Back.
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