A Response to Anastasia Telesetsky by Karen Scott

Professor Telesetsky, in her generous comments on my article in volume 12(1) of the Melbourne Journal of International Law, raises two pertinent questions.  First, why has there been a profusion of cooperative efforts across treaty bodies and second, what are the linkages that are most effective in compelling compliance with treaty regimes?

In relation to the first question, Professor Telesetsky disagrees with my observation that MEAs are ‘increasingly regarded as international actors who are “capable of driving a normative agenda’”.
She goes on to note that the ultimate power and authority to shape norms rests with MEA state parties and not the secretariat. Whilst I would concede that this is essentially correct I would argue that ‘autonomous institutional arrangements’[1] within some but not all regimes undoubtedly contribute to the development of normative agendas in their own right, particularly in the context of
institutional and administrative cooperation. This conclusion is supported by the results of a recent extensive study carried out by Frank Bierman and Bernd Siebenhüner (eds).[2] Nevertheless, as I conclude in my article, those cooperative arrangements that receive active political support from state parties appear to be more effective from the perspective of environmental governance and in relation to the environmental goals of the MEA.  Of all the examples I cite in my article, the most ambitious scheme for closer institutional connection has been developed and is currently being implemented by the Basel, Stockholm and Rotterdam Conventions (the so-called ‘chemicals cluster’) and supports the integration of political as well as  administrative agendas.  I would suggest that it is a combination of state party support and dynamic MEA institutions that are together driving the institutional connection agenda.

The second question raised by Professor Telesetsky is an excellent one, to which, I suspect, there is no straightforward answer. Intuitively the creation of cooperative and institutional linkages in the specific context of compliance should support compliance with MEA obligations.  However, the only example I have come across of a multi-cooperative institutional initiative in respect of compliance — the Danube–Black Sea Shipping Canal case — has not proven particularly effective in practice; the Ukraine remains in non-compliance with a number of its obligations under several of the MEAs involved in the initiative.  More generally, compliance regimes within MEAs rely on facilitation as much as or even more than coercion, and thus it might be argued that the creation of institutional linkages between MEAS, which streamline programmes of work and administrative obligations (such as reporting), may itself support states and make it easier for them to comply with their MEA obligations.  This is undoubtedly an area that would benefit from further legal, political and institutional research.

[1] This term was coined by Robin Churchill and Geir Ulfstein in ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little Noticed Phenomenon in
International Law’ (2000) 94 American Journal of International Law 623.