Developing a Culture of Compliance in the International Environmental Regime

Ruth Greenspan Bell

Ruth Greenspan Bell is Director, Program for International Environmental Institutional Development, at Resources for the Future. As Senior Advisor to the Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs, she formulated the strategies that are discussed in this Dialogue. She has previously served in various capacities at the U.S. Environmental Protection Agency, most recently as Senior Attorney providing legal and policy institution building advice to foreign governments seeking to strengthen their regimes for environmental protection. The author thanks Eileen Claussen for the unique opportunity of examining these issues and providing recommendations. Jacob Scherr, David Victor, Philippe Sands, David Freestone, Peter Sand, Brad Gentry, Lee Kimball, Terry Davies, Tom Troyer, Irving Mintzer, Will Martin, John Steinbruner, Hilary French, Sue Biniaz, Sonia Henneman, Trish MacQuarrie, Faith Halter, Bob Ward, Dan Esty, Edith Brown Weiss, Armin Rosencranz, and numerous people from the Environmental Law Institute were generous with their time and thoughts. The views expressed here are those of the author.

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Over the past 20 or so years, the world has developed a vast array of international environmental agreements. Approximately 900 international environmental agreements worldwide have been negotiated and set into place.¹ These include bilateral and multilateral, regional, and global agreements that cover a variety of issues and problems and vary tremendously in purpose and strength. The United States participates in or has a significant interest in more than 170.²

Many difficult hours have been spent negotiating the language of these agreements. The complexity and intensity of negotiation, the science supporting decisionmaking, and the politics of reaching agreement have dominated public perception of the international environmental regime, as well as the attention of the environmental community.³ The agreements have become increasingly ambitious in their scope.⁴

As difficult as these negotiations have been, their resolution often obscures the most difficult step in the process of addressing the globe's many environmental challenges. Implementation of these agreements poses challenges far more daunting to the international environmental regime.⁵ Because most obligations assume that there will be effective domestic steps to control pollution and preserve natural resources, the implementation stage touches on difficult issues of sovereignty and domestic capacity. Whether obligations will be incorporated into the domestic legal structure, and more importantly, whether requirements will be treated seriously within each country that has assumed such obligations are issues critical to the successful implementation of international environmental agreements.

It is sometimes said that the root of compliance problems is that requirements are not enforced. However, I think that this formulation mischaracterizes the problem. Absent a police state, enforcement cannot be the main tool to achieve implementation. A more accurate question is whether there is a culture of compliance, backed up by an effective enforcement regime. If domestic practices do not carry the international obligations to fruition, the discontinuity between law and practice in many international environmental agreements could be the Achilles' heel of the international environmental regime, much the way the clear disparity between Soviet law and practice eventually helped to undermine faith in the Soviet system.

This formidable task is slowly gaining attention. In April 1996, the Secretary of State gave an address stressing that U.S. foreign policy must consider the environment a concern and acknowledging the need for greater emphasis on treaty [27 ELR 10403] implementation and compliance.⁶ This Dialogue suggests ideas to catalyze improved implementation of international environmental obligations. It looks at effective domestic strategies and supportive international efforts that together might improve the workability of international environmental agreements.

Background

Environmental professionals in the United States take for granted the infrastructure and traditions that support their daily activities. Our process of domestic environmental and natural resource protection was given impetus by interrelated actions involving the legislative and executive branches of government, the courts, the public, and advocacy groups for the environment.

Government created the laws and the institutions that manage environmental protection responsibilities. When implementing bodies in the government failed in their obligations, the courts responded to nongovernmental organizations (NGOs) that brought mandatory duty lawsuits, demanding that the government follow requirements set in law by Congress. Courts imposed timetables and, in some cases, directly supervised laggard government agencies.

After standards are set, most facilities and individuals do what is required to protect natural resources or control pollution. Their motivations to act include fear of enforcement and the affirmative desire to be good citizens. Enforcement is a continuous process at federal and state levels, supplemented by public pressure and citizen suits. Intense public interest acts as a form of continuous fuel, demonstrated by the public pressure to keep the environmental agenda alive that turned around the 104th Congress in the 1995-96 term.

Impediments to Effective Treaty Implementation

While environmental awareness is growing worldwide, the specific conditions that allow effective environmental protection activities to thrive in the United States are not available in the international system or in most of the countries signatory to international environmental agreements.⁷ It is well known that implementation of international environmental obligations requires governments to act. Depending on the country, the form of government, and the degree of private commercial activity, relevant activities can include law drafting, implementing regulations and orders, compliance activities, and enforcement.

What is less fully discussed, but perhaps more important, is that successful implementation demands a full range of implementation activities at the individual and enterprise level. Whether the polluting facilities, fishing boats, or farms are private, state-owned, or some combination, there must be conduct on the part of nongovernmental and governmental actors that translates environmental obligations from formal requirements into daily routines. Relevant behavior can include more environmentally conscious logging practices or putting controls on the ends of discharge pipes. The key to policy success lies in changing everyday behavior of industrial entities and individuals.

It is at this industrial and individual level that concern has grown about implementation, or the "functioning or effectiveness" of international environmental cooperation.⁸ Discussions of this aspect of the international environmental regime are guarded,⁹ perhaps because actual data is limited, and much of the discussion for and against the success of implementation rests on anecdotal evidence or focuses on related issues that are somewhat easier to address, such as whether the reporting requirements of international environmental agreements provide adequate information about implementation rates.¹⁰ Additionally, the reticence may reflect some concern about confronting the issue too directly for fear of undermining the process of achieving international agreement. Some commentators express relative optimism that nations have a general propensity to comply with their obligations.¹¹ Nevertheless, it seems to be generally agreed "that what happens at the domestic level is probably more important in explaining the course of development and effects of international commitments."¹² My own experience in a number of countries, and discussions with experts from others, concerning discrepancies between domestic environmental requirements and actual implementation, suggests that problems arise when implementation requires effective domestic efforts to control pollution or protect natural resources.

Many countries that have assumed international obligations in good faith have given little thought to the practicalities of implementation, once they have completed the stage of formal law drafting.¹³ In this respect, the difficulties [27 ELR 10404] they face may not be much different than those they face in implementing their other domestic requirements. Some of the same countries that struggle to implement their own domestic environmental protection and resource conservation laws also have difficulty closing the gap between law on the books and reality for labor, tax, and securities laws, building codes, and other requirements.¹⁴ Moreover, even those with good and practical intentions have substantial constraints that affect their capacity to implement their obligations. Some simply lack the resources, domestic infrastructure, and regulatory experience that are predicates for tackling environmental issues.

Even countries with some resources and capacity cannot do everything at once. Domestic priorities such as providing potable water (in some cases, providing any water) or basic health care may overwhelm the available funding and manpower that would be used to address global environmental problems. Each country has its own legitimate differences in terms of priorities, capabilities, and time frames for action.

There are probably also countries that intentionally assume international obligations with little or no intention of actually carrying them through.¹⁵ For some, the formalities of negotiating and becoming signatories provide advantageous window dressing for domestic or international political purposes. Others might imagine implementation at a future date, when they anticipate or hope for domestic improvements in economic and political conditions that will allow them to focus attention on environmental issues. In some countries, corruption is a significant barrier. Some, like the countries of the former Soviet Bloc, are undergoing the intense stresses of political and economic transition, and sorting out where compliance responsibility lies within government, and between government and the nascent private sector.

Other defects in treaty compliance may arise from the fact that it can be difficult for countries to understand their exact obligations. Many international instruments reflect the difficulty that was experienced in achieving closure. Obligations may have been kept purposefully ambiguous in order to obtain the maximum number of adherents, or sensitive areas may have been avoided.¹⁶ Although many treaties set up a process for dispute settlement about their meanings, these formal dispute settlement clauses are not often used or are used reluctantly,¹⁷ and many agreements provide little clear guidance about their intent and purposes.

At the international level, there are few tools of the kind we use domestically that can command errant or renegade actors. The potential arsenal of tools that one country, or a group of countries, can use against those who have chosen not to comply includes negative trade measures, unilateral sanctions, membership sanctions, and a variety of other economic and political provisions. Often these are a bit like nuclear weapons—too powerful and controversial actually to use in most instances. The country considering sanctions weighs the importance of the environmental issues against other parts of the bilateral relationship. Although there have been exceptions,¹⁸ there is general agreement that the existing forms of sanctions are either not very effective or are used rarely and reluctantly.

Likewise, there are few effective litigation-type remedies in the international arena.¹⁹ With limited exceptions, the international tribunals have not been used for the resolution of environmental disputes.²⁰ This is unlike the evolving situation in trade, where proceedings are increasingly used to adjudicate trade disputes. Trade dispute resolution models have been suggested for environmental disputes, but it is not at all clear that they would be effective. One of the differences is in the priority put on trade by almost all countries, which makes them more willing to agree to a regulatory regime; environment is not yet seen as so critical to development. The other difference may lie in the process of accession to the World Trade Organization (WTO), which is an arduous process that tests the resolution of applicant countries. The process of acceding to most international environmental obligations does not require the same level of commitment.

Concerns that countries have about submitting themselves to international judicial forums to adjudicate environmental disputes might be further heightened if the issue for adjudication were to involve their unwillingness or failure to implement their internationally incurred obligations. For this reason, it is unlikely that there will be an international analogue to the mandatory duty cases that have contributed to the stimulation of U.S. environmental practice. The international tribunals are probably not, at this stage, a viable option for enforcing many international environmental requirements.

Overcoming Impediments: The Montreal Protocol

Some international agreements have built-in ways of reaching out to the special needs of countries who are a party, with mechanisms, tools, and techniques that recognize the unique problems they face in coming into compliance. The international environmental agreements that have been generally acknowledged to have been the most successful in accomplishing their goals usually include a range of inducements and noncompliance procedures to encourage genuine participation.

The Montreal Protocol²¹ is the best example to date. The [27 ELR 10405] Protocol differentiates among countries in their capacities to come into compliance, giving certain developing countries (the "Article 5" countries) additional time to meet the agreement's requirements. The phasing approach recognizes and takes into account technical and economic constraints that restrict implementation. Like a compliance schedule in the U.S. domestic regime, realistic barriers to implementation are acknowledged, but time frames and milestones are also established, albeit across the board for developing countries, rather than individually on a country-by-country basis. These countries are also provided financial and technical assistance, grace periods, and decisionmaking procedures that ease their transition. Trade restrictions encourage the phaseout of old technology.²²

Under the Protocol, an implementation committee has been designed to provide maximum opportunities for compliance rather than punishment. The measures the committee can use include technical and financial assistance, cautions, and suspension. It was this committee that engineered solutions for the compliance problems of a number of "countries with economies in transition" in the former Soviet Bloc. These solutions have been instrumental in easing the Protocol through challenges to its ability to phase out ozone-depleting substances, but the success of these measures is yet to be fully tested.²³ To date, however, the Montreal Protocol, through flexibility in the review process and amendments, has continuously evolved to meet changes in scientific evidence and technological developments.²⁴ Even though the Article 5 countries' 10-year grace period is not due to expire until 1999, many such countries have made substantial progress in reducing their use of ozone-depleting substances.²⁵

As useful and constructive as the provisions of the Protocol are, they may not be easily transferable into other contexts. The Protocol is designed to manage one environmental problem—the phaseout of specific, identified substances that are produced by a relatively small number of manufacturers. Its unique economic dynamic plays a considerable role in its success. The large, powerful companies that are foregoing manufacture of these products, and that have developed substitutes for them, have a strong economic interest in making sure that others do not step into the breach.²⁶ This probably has some relationship to the amount of money that fuels Protocol-related assistance efforts and to the care that is taken individually to address implementation problems. It also creates a natural watchdog group, eager to assure compliance.²⁷ Anyone thinking of using the provisions developed in the Protocol for other agreements must consider why the Protocol's particular compliance mechanisms work—the differences in the type of interest that the agreement protects, the players and actors, and the practical, political, dynamic, or bureaucratic environment.

Suggestions for Improving Treaty Implementation

The significant differences of capacity within the international system, in the types of issues that are being addressed globally, and in the conditions in the implementing countries, as well as the limited ability of the international community to affect how countries function domestically, argue for thinking more broadly and strategically about factors and conditions that might stimulate better levels of compliance. This is particularly necessary in a disparate world with very different actors and a wide variety of motivations.

Much of the thought to date in this area has been at the level of the international instruments—what provisions might be added to agreements, and what approaches could be taken within instruments that might increase the success of these accords. Less attention has been given to domestic strategies that could be adopted by individual countries and what the international regime should do to promote optimal national policies.

This Dialogue looks at strategies at both levels, but my own stronger interest is in the admittedly more difficult of these: increasing domestic capacity and strength to manage environmental obligations. This point is discussed at greater length below. The important point in examining each strategy is that no one strategy can singularly achieve compliance. A variety of tactics can help stimulate progress and, over time, achieve results. The balance of this Dialogue examines each of these strategies in turn.

International Implementation Strategies

[] Compliance Mechanisms. Compliance and dispute resolution provisions pose a dilemma for drafters of agreements. Precise requirements that make it relatively easy to judge whether states are fulfilling obligations are traded off against the difficulty of negotiating such obligations. The same calculations are made for enforcement provisions. Even when dispute settlement provisions are part of agreements, they are not consistently used²⁸ and experts have judged them to be an "unsuitable means of ensuring the supervision and enforcement of breaches of obligations that have a multilateral character."²⁹

In view of the considerable practical problems posed by dispute settlement provisions, drafters are increasingly considering methods that are "non-confrontational, conciliatory and cooperative, that would cajole, encourage or otherwise help Parties that were in breach of their obligations [27 ELR 10406] to achieve full compliance."³⁰ This is in part because of the success of the Montreal Protocol. The Protocol's efforts to incorporate flexibility for managing problems of non-compliance are being emulated in other agreements³¹ and are being considered in other contexts, such as climate change, hazardous wastes, and desertification.³² The challenge is to construct "a verification process more compelling than peer pressure; yet less abrasive than settlement of disputes …."³³

Simply because this line of inquiry has received the most thought to date, I will not repeat the reasoning or history here. However, there are two useful points to make. First, the international community is clearly interested in examining a range of alternative compliance strategies. Considerable attention has also been given to transferable lessons from the International Labor Agreements, the General Agreement on Tariffs and Trade, the WTO, and arms control and other agreements. This opens the door for consideration of the various implementation ideas discussed in this Dialogue and in private research efforts examining implementation,³⁴ and makes the timing of the Secretary of State's concern propitious.

Second, great care must be taken to link compelling features in particular agreements with the practical, political, dynamic, or bureaucratic context that gives the features force. Thus, for example, compliance procedures that have proven successful in conventions with a relatively narrow focus and unique economic dynamics, such as the ozone issues addressed in the Montreal Protocol, may not work in conventions that affect much wider patterns of behavior and disparate industrial sectors such as are found in climate change. Differences in the type of interest that is being protected in the agreement, the economic interests affected, and dozens of other factors will affect the choice of appropriate compliance mechanisms.

[] Gathering and Disseminating Compliance Information. A number of ideas have been put forward that are based on variations of reporting and disclosure requirements. The reporting can be done by independent bodies and observers or the countries themselves.

Regular implementation reviews, including visits to countries and on-site inspections, are ways for the international community to monitor the progress of existing agreements. Reviews provide external, independent feedback about the particular strengths and weaknesses of an individual country's compliance regime, and constructive suggestions for improvement. The Organization for Economic Cooperation and Development (OECD) already does this for member countries and countries seeking admission to the OECD, although these reviews cover the gamut of the country's domestic and international environmental obligations. Customized examinations can be expensive. They require the acquiescence of the countries who will be opening their doors for inspection. As an international tool, they would likely be reserved for important agreements whose provisions and requirements are relatively clear and where the economic interests being addressed in the agreement are sufficiently strong to support costly examinations and reviews.

Reporting by the signatories on their own implementation efforts can provide a warning sign that some type of intervention is warranted and is another way to generate information for reviews.³⁵ The information can be valuable for the international community to help increase diplomatic and peer pressure for compliance and to guide aid and assistance.³⁶ It also can be valuable for the NGOs, advocacy groups, and businesses who use the information to increase public awareness and to pressure governments to adhere to their obligations through publicity campaigns and product boycotts.

While we have seen dramatic demonstrations that public opinion counts in the United States to move government to act on environmental issues, not every country shares conditions that allow the public to influence governmental decisionmaking. The conditions in some countries, however, are changing. Concerns about the Soviet Union's failure to share accurate information about the Chernobyl accident mobilized public opinion in Ukraine and led to the development of activist NGOs and extensive private radiation monitoring, which in turn provided a reality check on the information that the government was providing.³⁷ Eventually, these concerns contributed to the movement for an independent Ukraine.

But the Ukrainian example also highlights a caution. In many countries the environmental advocacy community is equally, if not more, interested in issues broader than the environmental arena. Environmental advocacy is sometimes a surrogate for political opposition, and the point of protest is sometimes larger and different than practical environmental implementation or achieving environmental results. There are countries where the environmental advocacy groups think it inappropriate—possibly evil—to work with the government under any circumstances and do not therefore participate in law drafting or other implementation exercises.

Even when the primary goal of the advocacy community is to improve environmental compliance, the results from reporting will not alone aid effective advocacy. There is a need for the kinds of information that can help people sort out and establish priorities,and that can help governments to come to grips with their environmental challenges in practical ways. Undigested information may provide misleading clues for environmental decisionmaking, similar to the way that finding needles and syringes on beaches in the United States had little to do with the real risk from disposal of medical equipment. Finally, even where environmental [27 ELR 10407] conditions are very bad, the sense of outrage and the resources devoted to solving these problems can be overwhelmed by larger concerns involving basic rights or basic needs. Ukraine is an independent country now, but many people there probably continue to eat contaminated fruits and vegetables if they are the only available, affordable foods.

This is not to argue against the importance of accessible, accurate information about environmental conditions or compliance, but to illustrate the limitations of transposing the role of information in the U.S system as a solution for implementation deficiencies elsewhere.³⁸ Additionally, as a practical matter, actual reporting rates on many agreements are low, and sometimes the quality of the reporting is suspect. Reporting also has a significant cost that must be weighed against its potential benefits. In countries with thin environmental or resource protection institutions, reporting can be a financial and human resource drain that competes directly with implementation activities for the time and attention of environmental officials and professionals.³⁹

The burden that reporting places particularly on resource-poor or infrastructure weak countries might be diminished by a coordinated international effort to better integrate reporting functions among the various agreements. Many agreements have their own separate reporting regimes. The proliferation of reporting and monitoring requirements under the various agreements has made them mutually competitive to some extent. Centralized or better coordinated secretariats could facilitate the exchange of information and ideas, and allow their information collection systems to be streamlined and harmonized. This would in turn facilitate the reporting requirements of signatories. This idea is being examined in the United Nations (UN) system and elsewhere and follows on the recommendations of the 1992 Rio Earth Summit.

Efforts at streamlining or consolidating reporting requirements might be helpful, but they also have their limitations. If little real reporting is taking place, consolidating reporting obligations could consume substantial international effort without much real gain. Efforts would have to be handled sensitively. For example, it would be necessary to take great care not to compromise the effectiveness of reporting under treaties that have better reporting records. There is some evidence to suggest that efforts to improve reporting requirements work better when they are focused on specific data for specific, clear purposes.⁴⁰ Undertaking this effort would also have some political fallout. Interest groups, including the political, bureaucratic, and geographic constituencies of the various secretariats and advocates for some particular agreements might mount strong opposition against efforts that they perceive as possibly undermining their own goals.

Some observers suggest that better information collection and sharing through the telecommunications revolution offers new organizational tools and opportunities for stimulating implementation efforts, including work on a common "technical" framework for monitoring, standards, and other parts of the technical side of implementation.⁴¹

I am personally somewhat skeptical about the strength of the relationship between technological advances—improved systems for sharing technical information, better access to information on the Internet, and the like—and effective implementation. There is no doubt that reliable information is the basis of good decisionmaking, and that once facilities and individuals are committed to implementing their environmental obligations, they can be assisted by access to information about environmentally sound technologies. But technology is only a tool. There are too many examples of countries that collect or have access to a great deal of information but do not control their pollution or continue to abuse their natural resources. The experience in the former Soviet Union, where a great deal of data was collected (although it was sometimes closely held and not even shared between governmental bodies), demonstrates the enormous difference between data collection and effective environmental and natural resource protection. Data collection and review, and technical standardization are efforts that trained professionals from around the globe can participate in, but the difficult challenge is translating information into effective action.

Moreover, as a practical matter, increasingly sophisticated communication tools continue to be more in the reach of the developed world; relying on such tools as a basis for increasing implementation may involve another unrealistic discussion for parts of the developing world for whom price and access continue to be an issue.⁴²

Despite these caveats, reporting and transparency can be a part of the process of improving environmental and natural resource protection in some countries and at some times, and not only in monitoring the effectiveness of international agreements. In pollution control, and in resource protection that involves mining, logging, or fishing, private businesses [27 ELR 10408] must often install or incorporate and manage control equipment and practices. Two-way communication between individual governments and the implementing sector is essential. For example, to establish effective pollution controls, international negotiators of agreements must understand what their industry can technically and economically accomplish and how far they can realistically be pushed.⁴³ When agreement is reached, the implementing sector must understand its responsibilities and how its own activities fit with the practices of its competitors and allies. Increasing access to information can improve this process.

Reporting as a tool for stimulating implementation might be improved by verification and assessment procedures, such as public hearings, environmental monitoring, certification schemes, and environmental audits. Many of these provisions have analogues in the independent reviews, site visits, hearings, and complaint procedures contained in arms control, human rights, labor, and trade agreements that affect domestic laws and policies.⁴⁴

[] Assistance and Other Economic Incentives. Various economic incentives can be another part of improving the viability of agreements. The most commonly used economic incentive is direct assistance. The most prominent current example of this is the Global Environment Facility (GEF). The GEF provides developing countries with grants and low interest loans for projects intended to protect the global environment from activities that impact climate, biological diversity, international waters, and the ozone layer. Some agreements themselves include funding to assist the participation of developing countries; among these are the 1979 Migratory Species Convention, the 1971 Ramsar Convention, and the Montreal Protocol.⁴⁵ Other forms of assistance also exist through various U.N. programs, and the U.S. Agency for International Development (AID) and foreign aid equivalents to help build administrative capability with respect to environmental obligations.

Other international devices to stimulate or ride the coattails of economic self-interest in achieving implementation can be briefly mentioned. Several examples are joint implementation, solutions that "privatize" the resource that is being restricted, and debt-for-nature swaps that are invested in controlling impacts on the international environment.

Joint implementation is a tool currently being developed to support the Climate Change agreement. It seeks to harness market forces by allowing an entity in one country partially to meet its commitments to reduce greenhouse gas levels by offsetting its domestic emissions with projects it finances in another country. This can encourage emissions investments into countries with lower cost reduction opportunities, thereby creating both investment opportunities and a source of funding for environmental activities in poorer countries.⁴⁶ This approach recognizes that there are circumstances in which it may be more cost effective to install basic pollution equipment where control is needed, than to capture the last increment of pollution in a highly regulated environment. Whether joint implementation will move forward is to some extent caught in practical and philosophical differences between the developed and developing world,⁴⁷ but it represents an effort to capture economic dynamics to achieve a regulatory result.

Efforts to "privatize" resources are ways to capture the value of the resource being regulated or to create incentives for participation in the regulatory scheme. One model is the 1911 Fur Seal Treaty⁴⁸ which allows certain seal kills. States that curtail seal kills in accord with the agreement are provided compensation in the form of a share of the total allowed kills. Another option currently under consideration is that of controlling access to fishing through property rights, either through individual transferable quotas or by means of a licensing limit system.

Debt forgiveness offers potential for fueling environmental implementation. Although debt negotiation takes place outside the context of specific agreements, the bilateral or multilateral interests involved can be acknowledged by earmarking funds for activities that will advance international environmental obligations. This is a way of indirectly giving something back to the countries agreeing to forego their rights to repayment, and can make the forgiveness more attractive. Poland has achieved great success by applying funds generated from debt forgiveness by the United States and other countries to the resolution of international and transboundary pollution. A sophisticated "EcoFund" uses this money to seed or supplement pollution control efforts that impact the Baltic Sea and Poland's European and global neighbors. The EcoFund is one source of funds supporting Polish implementation of its Montreal Protocol obligations.⁴⁹

[] Management Tools to Organize and Phase In Requirements. The burden of implementation can be eased by phasing in requirements, using a variety of techniques to schedule or organize international environmental obligations for each country in ways appropriate to its capacities, infrastructure, and institutional development. Phase-in can take place as it is done in the Montreal Protocol, which recognizes differing capacity among its signatories and puts obligations first on the countries best able to handle them. Another approach is to start with nonbinding ("soft law") requirements and move to binding targets as experience and comfort level grows. The proponents of this approach believe that "states are willing to agree to ambitious non-binding declarations when they would otherwise balk at binding commitments," and that there is [27 ELR 10409] evidence in particular agreements addressing European acid rain and the North Sea regime that the "non-binding standards are nevertheless highly effective."⁵⁰

An idea with an analogue in domestic U.S. environmental practice is a country level "compliance schedule" or "plan for domestic action." Domestic U.S. compliance schedules, which are negotiated with particular implementing facilities, typically set realistic milestones to reach all existing obligations. The involvement of the companies in setting the schedules is essential because the value of this strategy rests in reaching a realistic assessment of what can be achieved in specified time frames.

In the international arena, this could work at least two ways. A schedule could be a plan for reaching the specific environmental obligations of one agreement, or it could be an organizing tool for the many countries that have assumed numerous obligations under a variety of global, regional, and bilateral agreements. In either case, countries would undertake a domestic process for scheduling their international obligations, with the understanding that no obligation falls off the table, but not everything can be done at once. The schedule or plan would include milestones and practical means of accomplishing them. The obligations could be tied to assistance or to other tools or techniques for achieving compliance, according to assessments of domestic needs, resources, and capacities. The GEF or other funding bodies might be encouraged to fund such efforts.

For the world community, scheduling obligations is a diplomatic way of recognizing resource and infrastructure disparities and moderating expectations. For individual countries with the will to meet their international environmental commitments, scheduling obligations could be an organizing tool of considerable strength. The country-level exercise of establishing priorities among environmental obligations can build a realistic set of expectations and a sense of hope for countries that are otherwise overwhelmed by requirements they know they cannot meet. It might allow such countries to focus on a smaller number of pivotal issues, gain some success and support in their own countries, and build on those successes. This tool could be considered in connection with other ideas explored below concerning consolidation of substantive obligations.

Two difficulties, however, would have to be overcome. First, unlike domestic compliance schedules in the United States, where equity courts wield considerable power to enforce obligations,⁵¹ there is no existing international mechanism for enforcing these agreements. Instead, schedules would gain credibility from the value that individual countries put into the exercise, and from the acquiescence and support of the international community in recognizing the need to inventory and coordinate their various obligations. The international community has to some degree recognized the value and importance of establishing priorities and better organizing joint efforts. For instance, in the meetings of the UN's Economic Commission for Europe (ECE) in Lucerne and Sofia, considerable care has been taken to coordinate and rationalize donor programming.⁵² And the World Bank, AID, and others have sponsored domestic efforts under the rubric of developing national environmental action plans.⁵³

The second potential obstacle involves the perception that a compliance schedule approach might undercut, rather than strengthen, existing international obligations. In this view, the negotiation of timetables should take place within the context of specific agreements. Subsequent scheduling discussions undercut the promises made in specific instruments. This is a tough problem to address and an example of the way that the formalities of negotiation and treaty management are often at odds with the reality of implementation. It would be better if countries only signed agreements with the capacity and will to carry out the obligations, but there will always be a certain number of countries who do not do so. The entire international environmental community is also a bit culpable in this regard; from a political point of view, there is sometimes pressure to be able to announce that global environmental agreements have the maximum adherents, regardless of whether such agreements can be implemented.

Clearly, a compliance plan could be a double-edged sword unless it is handled very carefully. It should not be seen as a way of imposing further obligations or as a way of allowing obligations to be circumvented. Although it can increase a country's time frame for meeting its obligations, if the core challenge in the international environmental arena is to create a genuine sense of ownership in international obligations, encourage real efforts to address global environmental threats, and sharpen the debate when specific obligations are missed, innovative devices to stimulate progress must be sought.

The international community could also impose a kind of compliance agreement on itself. The various parts of the international environmental regime have been developed, by and large, without much thought about how their requirements interrelate or possibly even conflict. Each agreement in effect has equal priority, because no priorities have been established, although as a practical matter, some agreements are more rigorous or specific than others and some provide greater implementation support.

The ultimate compliance agreement might include a moratorium on additional negotiations directed toward increasing obligations until progress has been achieved in implementing existing requirements. Short of suspension of new efforts, joint efforts could be turned to creative reviews of existing agreements to classify their practical interrelationships. The purpose would be to achieve greater clarity about the goals of the international regimes and how existing agreements reach those goals. There are in fact [27 ELR 10410] efforts to examine existing requirements to see how they address similar or interrelated issues or work at cross-purposes with each other. Deforestation and improved forestry practices are linked to conventions that regulate the impacts of runoff on river basin management, marine pollution control, climate change, biodiversity, and desertification. Some of the agreements that address one or more of these issues may supplement each other, in which case coordination can help countries manage their implementation efforts more productively.

Neatness is not everything—we surely know that from our domestic experience—but clarifying the goals of the international system now, before additional effort goes into implementation and new agreements, might reduce later confusion and better focus the efforts of the implementing countries and bodies. To some extent, the groundwork for this is underway in the UN system. The UN Economic and Social Council has called for reviews of cross-cutting themes in UN conferences and programs and harmonized work programs. The UN Department for Policy Coordination and Sustainable Development and the UN Development Program are seeking to inventory all national reporting requirements related to sustainable development to streamline, focus, and improve information availability and distribution. An international effort could bring some coherence to the welter of hundreds of agreements and obligations from an implementation point of view.

An even more aggressive approach might use an "unfunded mandate" type rationale for examining obligations and their capacity to be implemented.⁵⁴ No agreement would be concluded in the absence of a country-by-country examination of resources and capacity to implement the obligations. Still another variation would stimulate an international re-engineering effort to narrow the focus of agreements, set priorities, and discard unnecessary, redundant, or conflicting agreements.

There are numerous cautions for any one of these strategies. Details matter in agreements. Comparing and joining broad goals may prove to be an unuseful exercise. An effort directed at increasing international capacity should not obscure or even compromise efforts in one media or subject area by force fitting it with many other broadly related issues. Plain speaking about the difficulties posed by implementation may not be consistent with the political needs of countries and may inadvertently provide cannon fodder to the enemies of efforts to address global environmental issues. It is also well known that specific agreements and instruments each have their own proponents, who might fight any effort that might be perceived as undercutting interests for which they have struggled. Moreover, not everyone who has studied this problem thinks that "treaty congestion" is a problem in negotiation or implementation. For example, researchers at IIASA dispute this point and argue that multiple agreements can confer benefits.⁵⁵ Most importantly, an exercise like that suggested here might engage the global environmental community in intellectual games that end up having little to do with achieving real implementation progress and could create the illusion of progress by instigating strenuous activities on the international level when ultimately implementation requires domestic commitment.

A related approach to these strategies would be to consider whether managing problems on a global level might be counterproductive to achieving the goals of the agreements. The sheer accumulation of international environmental agreements raises questions about focus and commitment, and may require more creative thought about their administration. Although many environmental issues require concerted resolution, it may not be necessary for all of them to be managed at the global level. An alternative is to move the implementation focus of global environmental agreements to a series of regional foci. Regional interactions are often more effective and urgent than global interactions simply because of repeated encounters between the parties and a greater sense that there are common concerns and issues. Global interactions are more distant and formal, and less frequent; and there is a sense that global agreements sometimes unintentionally overshadow effective working regional agreements.⁵⁶ Daunting tasks are also made more manageable when they are broken down into bite-sized tasks.

Domestic Implementation Strategies

Ultimately, achieving environmental and natural resource protection goals—whether they involve internationally incurred obligations or domestic objectives—is a domestic matter, requiring domestic activities. Although the international community can do much to facilitate and streamline its own processes that impact or affect the potential for countries to achieve international environmental goals, it is also necessary to pay close attention to strategies that individual countries and their domestic environmental bodies can command to increase their capacity and ability. Implementation success rests on a series of domestic efforts. It is here that international and domestic environmental goals intersect because the achievement of both rest on the same foundation.

The way that building capacity to implement environmental obligations has been addressed to date is through the assistance and institution building efforts discussed above that are funded by the GEF and are part of some international environmental agreements, as well as through foreign environmental assistance managed by AID and its foreign equivalents.⁵⁷ Most of these efforts are understandably focused on work with environmental implementing agencies. They provide training and technology transfer on the assumption that the recipient countries lack know-how.

[27 ELR 10411]

A fruitful but previously unexplored set of strategies involves helping make environmental implementing bodies into more effective and productive partners within their own governments. Assistance is invaluable in building skills, but it generally concentrates narrowly on the environmental implementing agencies without considering the governmental and political contexts within which they work. The limitation of the assistance strategy is that quite often the bodies that implement international environmental obligations domestically are the weakest ministries in their respective governments and they lack the power to pursue their objectives. This may have less to do with how well trained and equipped the regulators are than with their relative power roles in their own governments. Thus, many countries have domestic environmental requirements, even quite strict ones,⁵⁸ and have incurred significant international environmental obligations, but the laws have little real effect on actual practice. The problem goes much deeper than nonenforcement. In many of these governments, environment is perceived as a "soft" issue, or one that cannot be implemented before economic prosperity or political transition, and little real weight is given to implementation efforts. Even more fundamentally, environmental requirements may be a small part of a broader problem in which numerous laws are put aside, or the legal system itself does not work well.

In such cases, environmental implementing agencies must consider how they can acquire sufficient credibility and authority within their own governments to develop the power base necessary to carry out their responsibilities. There are two possible ways to proceed. First, implementing bodies can examine the utility and feasibility of domestically "repackaging" some environmental goals for a closer fit with more powerful economic, transitional, strategic, or other domestic goals within their own countries. Second, engaging in stronger domestic processes before international negotiation takes place may shape the obligations incurred to reflect a real domestic intent and consensus.

In the first approach, implementing ministries and agencies would be encouraged to find ways to work within their own governments to build more convincing arguments for putting resources and commitment behind environmental and natural resource protection activities. So long as environmental implementers are perceived by the more powerful parts of their own governments as pursuing idealistic but impractical activities, they will have difficulty gaining the support they need. Environment is sometimes perceived as a governmental luxury item, and is a particularly hard sell in governments that are struggling to address basic economic and human concerns. If the environmental implementers can emphasize parts of their agendas that can be more readily understood to support the goals of more powerful ministries, particularly those that control economic and planning functions, they may be able to gain support for some parts of their programs. A little power is better than no power. They can enhance their own standing and may develop constituencies within their own governments and in public-private partnerships that pay attention to environmental issues. They can do this by showing why mindfulness to the environment can strengthen economic goals, not burden them; why their efforts can add value, not add costs.

This is happening as a practical matter in a few countries in Central Europe where privatization is a priority. Where the privatization program of the country welcomes direct foreign investment, environmental liability inevitably becomes an issue in particular transactions. Environment ministries in the Czech Republic and Poland have demonstrated that they can remove obstacles to transactions by resolving the liability questions.⁵⁹ In Poland, representatives from the environment ministry are part of negotiation teams and their expertise facilitates deals. In the Czech Republic, the environmental regulators have formulated a plan that reduces investors' risk by clarifying and bounding the obligations they will incur. The plan also conserves resources for cleanup of the worst contamination. When cleanup decisions are made, these difficult regulatory decisions are made by the environment ministry using information from audits and risk assessments. The result is not only good public policy, but it also raises the practical status of environmental regulators and builds their regulatory expertise. The plan being developed in Latvia that emphasizes a "brownfields" approach will have a similar positive impact on privatization and on environmental policy.

This strategy is directly applicable to the international environmental agenda. Climate change has a great deal to do with energy efficiency, waste minimization, and source reduction activities. These are all closely related to economic efficiency, something most planning and finance ministries care a great deal about. Marketed as a "pure" environmental program, climate change will languish. Repackaged to support economic efficiency, it can gain strength and also achieve many of the goals of the climate change convention.

Environment ministries can also join the mainstream by:

(1) stimulating efforts to develop diversified (and on balance, cleaner) economies in transitional economies that were heavily dependent on highly polluting, often noncompetitive industry;

(2) clarifying environmental standards (and related potential enforcement) to reduce perceived legal uncertainty (and therefore legal risk) for commercial bankers and underwriters engaged in project finance activities;

(3) helping to attract or develop environmental investment (examples include Costa Rican joint implementation plans, and countries with strong technical universities and scientific institutes that have potential to market competitive environmental services); and

(4) preserving unique natural environments to support eco-tourism as a revenue raiser.

Each of these offers opportunities for environmental implementing agencies to gain authority and power, hitching their wagons through practical support to the stronger engines in their own governments. The operative principle is that economic self-interest is a strong driver and environmental advocates should not fear riding this powerful engine as far as they can. While they do so, they can gain [27 ELR 10412] practical regulatory experience, as well as mentors and supporters in their own governments. In the international arena, state level commitments are likely to be stronger if they can be connected with a sense of national purpose and commitment.

Despite the almost uniformly weak position of environment ministers in most governments, pursuing the reasoning suggested here requires environmental advocates to be more practical than they have historically been in some countries. They will inevitably face purists who think the economy is the enemy. For those who see environment as an uncompromising moral value, any effort that is perceived as linking or subverting it to economic goals will be viewed as a deal with the devil. But international and domestic environmental protection is a long process that ultimately requires action, not just words. Even if this strategy is adopted as a relatively short-term marriage of convenience, the partners in such relationships can part company at appropriate times. An appropriate time would be after the environmental regulators have established their credibility and a relatively independent power base to achieve the goals set out in the obligations they have incurred.

The second approach that environment ministries can take to acquire a power base involves engaging in a national process to prepare for international negotiations. Negotiators sometimes come to the international negotiating table without really knowing what their domestic partners—governmental and private—are prepared and equipped to achieve. In the worst cases, obligations incurred have turned out to be surprises to their domestic colleagues, who were never involved in their formulation. This inevitably builds cynicism about the purpose of international environmental agreements and impacts the likelihood of follow through.

International assistance could be directed toward encouraging better domestic processes leading to negotiation, so that the agreement that is achieved might reflect a real domestic intent and consensus to carry out the obligations. All the obligations incurred might be more realistic if preceded by domestic dialogue about economic and technical feasibility. This means involving not only the foreign ministry that negotiates the agreements, but also other government agencies that manage implementation, allocate resources, and write and manage laws. It also requires the active involvement of business and industry, on whom environmental and natural resource protection controls would be imposed, and the NGOs and others who represent the interests of citizens and citizens groups. With their assistance, negotiators would know how far they can realistically go and how much support they have for achieving the goals of the international agreements. International commitments could be developed and tailored so that they resonate and build common ground with domestic policies, and build political coalitions that support implementation.

Conclusion

The international environmental regime encompasses an increasingly sophisticated set of agreements to control global threats to our health and safety. Unfortunately, many of the participating countries that must take action to implement these agreements lack experience in effective environmental protection or resource conservation. These countries need positive learning experiences to gain expertise and confidence in their own abilities and they need support from the international community if they are to realize their commitments. The concerned public in countries with mature systems of environmental protection such as the United States needs to understand that merely coming to agreement does not guarantee results.

Despite this, most of the international focus to date has been on negotiations and achieving agreement. Attention to the stage where domestic institutions must pick up the burden of international environmental commitments has been limited and uneven. This is not an easy subject to address, nor—as demonstrated above—one with a single solution. Noncompliance is frequently the consequence, "not of malice or greed, but rather of technical, administrative or economic problems"⁶⁰ that must squarely be addressed in the agreement itself or by the parties to the agreement through substantive follow-up activities. We need actual—not symbolic—changes in behavior that further the goals of the various accords. The way to achieve this goal is to begin to hold candid discussions that can lead to such changes.

1. Edith Brown Weiss, Inaugural Lecture at Georgetown Law School (May 23, 1996).

2. See U.S. GENERAL ACCOUNTING OFFICE, GAO/RCED-92-188, INTERNATIONAL ENVIRONMENT: STRENGTHENING THE IMPLEMENTATION OF ENVIRONMENTAL AGREEMENTS 3 (1992) [hereinafter GAO REPORT].

3. See, e.g., Jessica Mathews, Global Warming: No Longer in Doubt, WASH. POST, Dec. 23, 1995, at A23.

4. For example, Agenda 21 is a detailed blueprint for "addressing the interconnected, pressing issues of population, economics, equity, and environment." NATURAL RESOURCES DEFENSE COUNCIL, INC. & CAPE 21, FOUR IN '94, 1994 EARTH SUMMIT WATCH REPORT (preface) (ISBN 0-9644661-04) (1994).

5. Implementation and compliance are used here interchangeably for the range of domestic activities that secure the obligations incurred in international agreements, not including domestic law drafting. The two nongovernmental efforts to examine the implementation of international environmental accords have each used these words in particular ways. Edith Brown Weiss and Harold Jacobson use implementation to mean the process of law drafting, incorporating the necessary domestic legal framework for institutionalizing international environmental obligations. For them, compliance involves the steps beyond formal law drafting. See Harold K. Jacobson & Edith Brown Weiss, Strengthening Compliance With International Environmental Accords: Preliminary Observations From a Collaborative Project, 1 GLOBAL GOVERNANCE 119, 123 (1995). To the International Institute for Applied Systems Analysis (IIASA) group, on the other hand, implementation signifies the process by which intent gets translated into action. See David G. Victor & Eugene B. Skolnikoff, Implementing Environmental Commitments: How Governments, Industry, and NGOs Put International Agreement Into Practice, IIASA OPTIONS, Spring 1997, at 7-8.

6. Warren Christopher, American Diplomacy and the Global Environmental Challenges of the 21st Century, Address at Stanford University (Apr. 9, 1996).

7. See, e.g., Ruth Greenspan Bell, Environmental Law Drafting in Central and Eastern Europe, 22 ELR 10597 (Sept. 1992).

8. See STEINAR ANDRESEN ET AL., REGIME, THE STATE AND SOCIETY: ANALYZING THE IMPLEMENTATION OF INTERNATIONAL ENVIRONMENTAL COMMITMENTS (IIASA Working Paper, June 1995) at 8.

9. See David G. Victor, The Montreal Protocol's Non-Compliance Procedure: Lessons for Making Other International Regimes More Effective, in THE OZONE TREATIES AND THEIR INFLUENCE ON THE BUILDING OF ENVIRONMENTAL REGIMES 76 (W. Lang ed., 1996) (Austrian Policy Documentation, Austrian Ministry of Foreign Affairs, Vienna, Austria) ("In contrast [to certain other areas of international diplomacy], the history of international environmental diplomacy has been marked by states adopting symbolic or opaque commitments without the intention to implement them fully.").

10. Responding to a request from Senator Daniel Patrick Moynihan, the U.S. General Accounting Office (GAO) evaluated the reporting and monitoring information provided by parties to the secretariats of eight agreements and concluded that "many reports are submitted late, or incomplete or are not submitted at all." The GAO also pointed out that secretariats generally lacked authority and resources to monitor implementation and noted the "growing sense within the international community that systematic monitoring is warranted, given the seriousness of international environmental problems and the high costs of correcting or preventing them." Finally, the GAO recognized that "the inability to comply with agreements is a serious underlying problem in many instances…." U.S. GENERAL ACCOUNTING OFFICE, GAO/RCED-92-43, INTERNATIONAL ENVIRONMENT: INTERNATIONAL AGREEMENTS ARE NOT WELL MONITORED 4-5 (1992).

11. Antonia Handler Chayes et al., Active Compliance Management in Environmental Treaties in SUSTAINABLE DEVELOPMENT AND INTERNATIONAL LAW 75, 78 (1995).

12. ANDRESEN ET AL., supra note 8, at 3.

13. Complaints are sometimes heard about U.S. slowness or failure to ratify certain agreements. This is a legitimate concern. Congress has been slow to ratify some agreements. The delays, however, often reflect the concerns of a society of laws that is unwilling to ratify an agreement that it cannot implement, in distinction to countries that ratify agreements before they address domestic implementation issues.

14. See, e.g., IMF Suspends Portion of Huge Russian Loan, WASH. POST, Oct. 25, 1996, at 27A (concerning the Russian government's "apparent inability to crack down on corporate and individual tax evaders").

15. See Jacobson & Brown Weiss, supra note 5, at 122.

16. See Peter H. Sand, Institution Building to Assist Compliance With International Environmental Law: Perspectives, 56 HEIDELBERG J. INT'L L. 774, 776 (1996) (noting that "the incertitude and indeterminacy of most treaty texts is notorious (footnote omitted) and frequently deliberate").

17. See THE EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL AGREEMENTS 14 (Peter H. Sand ed., 1992).

18. For example, trade sanctions have been imposed against Taiwan for violating the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

19. Philippe Sands has an excellent discussion of the available tools in his chapter Compliance With International Environmental Obligations: Existing International Legal Arrangements, in IMPROVING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL LAW 43 (James Cameron et al. eds., 1996).

20. The Frankovitch case involving Italy's failure to implement its EU labor directives is an example of a rare mandatory duty-type case in the European Union. See Frankovitch, 19-11-91, C-6/90 and 9/90, 1991, I-5402.

21. Montreal Protocol on Substances That Deplete the Ozone Layer, opened for signature Sept. 16, 1987, 26 I.L.M. 1541 (entered into force Jan. 1, 1989), ELR STAT. TREATIES 50333.

22. See DUNCAN BRACK, INTERNATIONAL TRADE AND THE MONTREAL PROTOCOL, 39-51 (1996).

23. See Victor, supra note 9, at 76.

24. See id.

25. BRACK, supra note 22, at 33.

26. The 3M Company's efforts to develop a substitute for chlorofluorocarbons (CFCs) for certain aerosol uses is an example of economic reliance on and corporate concern about adherence to the requirements of the Montreal Protocal's phaseout. See Cindy Skrzycki, The CFC Exemptions Have 3M Pharmaceuticals Gasping, WASH. POST, Oct. 11, 1996 at F1.

27. There are strong similarities here with the commercial dynamics that drive arms control agreements. Potential competitors are among the important watchdogs of the process, assuring through reporting that proscribed goods are not traded.

28. See, e.g., Sand, supra note 16, at 14; Patrick Szell, Implementation Control: Non-Compliance Procedure and Dispute Settlement in the Ozone Regime, in THE OZONE TREATIES AND THEIR INFLUENCE ON THE BUILDING OF ENVIRONMENTAL REGIMES 43, 44 (W. Lang ed., 1996) (Austrian Policy Documentation, Austrian Ministry of Foreign Affairs, Vienna, Austria) ("parties to such agreements are not prepared to allow their performance to be subjected to compulsory review by the International Court of Justice and/or arbitration.").

29. Szell, supra note 28, at 46. Some agreements have found ways to provide interpretations through processes that Peter Sand calls "creative treaty management." Sand, supra note 16, at 778.

30. Szell, supra note 28, at 46; see also Sands, supra note 19, at 72-74.

31. Examples include the 1991 and 1994 protocols of the Economic Commission for Europe Convention on Long-Range Transboundary Air Pollution.

32. See Sands, supra note 19, at 788-89.

33. Szell, supra note 28, at 45.

34. David G. Victor and Eugene B. Skolnikoff co-lead an effort at IIASA, and Professors Edith Brown Weiss of Georgetown University Law Center and Harold Jacobson of the University of Michigan lead another.

35. See, e.g., Jacobson & Brown Weiss, supra note 5, at 140 ("reporting is probably best seen … as a tool that enables secretariats, other states that are parties to the treaty, and national and international non-governmental organizations to intervene to encourage compliance.").

36. U.S. GENERAL ACCOUNTING OFFICE, GAO/RCED-92-188, INTERNATIONAL ENVIRONMENT: STRENGTHENING THE IMPLEMENTATION OF ENVIRONMENTAL AGREEMENTS 5 (1992).

37. Personal conversation between the author and Andrii Demydenko. GreenWorld (May 1991).

38. There are a number of very useful international efforts to stimulate environmental public participation. The American Bar Association's Central and Eastern European Law Initiative program with offices in Lviv and other parts of the newly independent states provides concrete assistance for nascent environmental litigators. The Natural Resources Defense Council sponsored a guide to effective citizen participation that has been published in Russian and provides useful information for developing groups, particularly those who seek to litigate issues, in Russia, Ukraine, and elsewhere. ISAR (the former Institute for Soviet American Relations) and the German Marshall Fund's Environmental Partnership successfully provide support for environmental NGOs in central/eastern Europe and the former Soviet Union.

39. In contrast, at the U.S Environmental Protection Agency (EPA), a conservative estimate of the incremental cost of administering the Freedom of Information Act (FOIA) in 1995 was $ 3.5 million (a sum larger than the budget for many environment ministries in other countries), with at least 22 full-time employees or contractors devoted entirely to FOIA responsibilities in the EPA Headquarters' office alone. Each of the 10 regions also has at least one full-time FOIA officer. Personal communication with Jeralene B. Green, Office of the EPA Executive Secretariat (Nov. 4, 1996).

40. Personal communication with David Victor, co-project leader, II-ASA (Aug. 1996).

41. See LEE A. KIMBALL, TREATY IMPLEMENTATION: SCIENTIFIC AND TECHNICAL ADVICE ENTERS A NEW STAGE, 159, 161 (Stud. in Transnat'l Legal Pol'y Series No. 28, 1996) ("The UN Agencies, multilateral banks, and other intergovernmental institutions need to take a hard look at the results of their data collection and research programs and how well they serve users at national and regional levels…. The data and analyses that result from international research programs or from project evaluation should find their way into national and regional information systems where they can continue to serve the nationals and peoples concerned.").

42. See Julie Moffett, The Internet in Armenia, RADIO FREE EUROPE/RADIO LIBERTY'S NEWSLINE June 19, 1997, at Part 1 (explaining that while Armenia is make progress, the country faces several daunting tasks in improving its Internet connectivity because its telecommunications infrastructure is so poor).

43. Obviously, agreements can be technology forcing, but this has to be within the limits of achievability.

44. See, e.g., GAO REPORT, supra note 2, at 37.

45. See id. at 9.

46. The concept derives from Article 3.3 of the Framework Convention on Climate Change, and is currently in a pilot phase. See United Nations Framework Convention on Climate Change, opened for signature May 9, 1992, 31 I.L.M. 848 (1992) (entered into force Mar. 21, 1994), ELR STAT. TREATIES 50343.

47. See Christiana Figueres et al., Joint Implementation (or Activities Implemented Jointly) What? Who? Why? (Center for Sustainable Development in the Americas, Washington, D.C.), Jan. 1996, at 109; Farhana Yamin, The Use of Joint Implementation to Increase Compliance With the Climate Change Convention, in IMPROVING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL LAW 229 (James Cameron et al. eds., 1996).

48. Convention Between Great Britain, the United States, Japan and Russia Restricting Measures for the Preservation and Protection of the Fur Seals, July 7, 1911, 37 Stat. 1542.

49. Janusz Kozakiewicz, Problems Implementing the Montreal Protocol in Countries With Economies in Transition—Poland's Example, Presentation at the International Conference on Ozone Protection Technologies, Washington, D.C. (Oct. 23, 1996).

50. Victor, supra note 9, at 75. The danger, as Victor indicates, is of producing "agreements with excessive levels of non-compliance and symbolic commitments that parties will not implement." Id.

51. See Ruth Greenspan Bell & Susan E. Bromm, Lessons Learned in the Transfer of U.S.-Generated Environmental Compliance Tools: Compliance Schedules for Poland, 27 ELR 10296, 10299 (June 1997).

52. See Implementation and Compliance With Environmental Conventions in the ECE Region (Sofia Conference Document, Sophia, Bulgaria, Oct. 22-23, 1995) at 13 (urging regular direct contacts between the competent national authorities or focal points responsible for the implementation of the relevant conventions, including notification, exchange of information, establishment of legal and administrative structures and relevant procedures, and exchanges of national experience).

53. It is absolutely critical that scheduling be a truly domestic product, not the product of outside consultants, designed to meet the external demands of outside funding bodies. A genuinely domestic effort would engage all relevant interest groups with realistic discussions tied to economic and technical constraints and competing priorities.

54. Unfunded mandates is the term of art applied in the United States for obligations imposed on state bodies without related funding. See generally Peter Lehner, To Relieve Unfunded Mandates and Enhance Local Autonomy: Enact a "Municipal Empowerment Act," 25 ELR 10205 (Apr. 1995).

55. David Victor at IIASA argues that overlap allows for innovation, so that particular agreements can try out new ideas, and allows for progress on focused issues, which is often difficult under omnibus agreements. It also allows for tense debates to take place in one forum while another makes progress. Personal communication with the author (Aug. 1996). See also Victor & Skolnikoff, supra note 5, at 67.

56. Personal communication with David Freestone, World Bank (July 1996).

57. See Ruth Greenspan Bell, EPA's International Assistance Efforts: Developing Effective Environmental Institutions and Partners, 24 ELR 10593 (Oct. 1994).

58. See id. at 10597.

59. See generally Ruth Greenspan Bell, Environmental Liability in the Countries in Transition Revisited, 24 INT'L BUS. LAW. 108, 108 (1996).

60. Szell, supra note 28, at 46.