A Response to Karen Scott by Anastasia Telesetsky

[Anastasia Telesetsky is an Associate Professor of Law at the University of Idaho]

Professor Karen Scott’s recent publication on international environmental governance in the Melbourne Journal of International Law is a must-read piece for those concerned about international environmental law (‘IEL’) being fragmented and fractured across issues, institutions and implementation. In her article, Karen argues convincingly that the current disparate state of affairs of 500 plus multilateral environmental treaties is not cause for alarm. We are not entering the age of Humpty-Dumpty environmental law — rather, we are entering an age of synergy and possibility.

For some IEL scholars, the proliferation of treaty regimes is the precursor of a governance crisis that states appear ill-equipped to handle. Yet if we reflect on what it means to be in a crisis, we recognise that crises only emerge at decisive points when there are opportunities for change. Karen takes us in her article to one of these decisive points in current IEL public governance.  She contends, and rightly so given the evidence that she has carefully collected, that the current reality of  regime fragmentation offers new-found opportunities to link issues and institutions. Karen’s observations in her article make an important contribution to IEL scholarship.

I thoroughly enjoyed Karen’s article and appreciated her conclusion about the dynamic nature of MEAs. To be fair in this response, neither of the issues that I’m identifying as gaps are an explicit part of Karen’s well-researched project.  In reflecting on the MJIL article, the two analytical gaps for me were 1) a pragmatic explanation of why there has been a profusion of cooperative efforts across
treaty bodies, and 2) an identification of those linkages which are most effective in compelling compliance with treaty regimes.

Regarding the first gap, Karen suggests that MEAs are being increasingly regarded as international actors who are ‘capable of driving a normative agenda.’ I respectfully disagree that MEA secretariats have an autonomous international norm-generating existence outside of their member states. MEA secretariats reflect the IEL agendas of their member states.  As mentioned in her article, the Secretariat for the United Nations Framework Convention on Climate Change is restricted in its actions by its own members because of vested state interests.  While some secretariats, like
the one for the Biodiversity Convention, may be at greater liberty to make day-to-day decisions that influence future policy proposals, the ultimate power and authority to create and shape international norms regarding an MEA resides with the parties to the MEAs not the secretariat. While secretariats may partner with non-state actors who hope to influence the normative environment, this is largely irrelevant for the purposes of IEL norm generation.

It is my opinion that cooperative efforts among MEAs are then not so much a result of MEA secretariats pursuing synergies autonomously but rather a pragmatic institutional response to states spreading their limited financial resources across treaty regimes. In order to further treaty goals, MEA secretariats as part of an institutional survival strategy must capitalise on opportunities to cooperate across regimes.

On the second gap, I read with great interest the numerous examples of how MEA institutions are building synergies to exchange information, negotiating work programmes and implementing non-compliance mechanisms.  Rene Descartes once wrote, ‘A state is best governed when … few laws … are rigidly administered’.[1] Have MEAs created those critical synergies for rigidly administering laws where treaty regimes overlap or intersect on key subjects? Enforcement to compel state compliance with treaty regimes, when states have failed to voluntarily comply with a treaty regime, remains IEL’s Achilles’ heel.  Do we have any promising evidence that linking MEAs might improve IEL enforcement not just across treaty regimes but also within a given MEA?

[1] Rene Descartes, Discourse on the Method and the Meditations (John Veitch trans, Cosimo Inc, 2008) 21 [trans of: Discours de la méthode pour bien conduire sa raison, et chercher la vérité dans les sciences (first publushed 1924)].