International Environmental Governance: Managing Fragmentation through Institutional Connection

[Karen N Scott is a Senior Lecturer at the University of Canterbury, New Zealand]

The ‘fragmentation’ of international law is used as a term of description and — more commonly — as a lament.  It emphasises the isolation and disconnect between regimes and institutions and is peculiarly apt as a description of international environmental law; a complex regulatory field comprising multiple regimes and institutions giving rise to overlapping and, occasionally,
conflicting legal and policy mandates. In my article in volume 12(1) of the Melbourne Journal of
International Law, I argue that fragmentation is not an inherently negative phenomenon and, in fact, conflation and overlap between mandates provides an opportunity for improving synergy between policies and programmes and for the more effective implementation of environmental obligations.  The question is thus not how to reverse or minimise fragmentation but how to exploit it.
The answer to this question — in my opinion — lies in environmental governance strategies. In this article I explore just one governance strategy — the creation of formal cooperative arrangements or other institutional linkages between Multilateral Environmental Agreements (‘MEAs’) — and argue that institutional connection provides an important mechanism for managing the consequences of fragmentation and improving the effectiveness of international environmental governance.

I draw on the work of scholars such as Oran Young, Thomas Gehring and Sebastian Oberthür in order to conceptualise ‘linkage’ as a governance strategy and, whilst acknowledging the infinite variety of institutional connection, confine my analysis in this article to selected formal linkages between MEAs. In particular, I identify three categories of institutional connection: first, the formal agreements often referred to as Memoranda of Understanding (‘MOU’) between MEAS; second, examples of institutional integrated management — cooperative agreements that go beyond the
typical MOU but which do not amount to fully nested arrangements — and; third, connections and linkages that are being developed by MEA compliance mechanisms or in the more general context of compliance. I use a wide range of examples of formal cooperative agreements between MEAs operating within the field of biodiversity protection, pollution prevention and control and fisheries management. I note that those MEAs with particularly dynamic institutions — such as the 1992 Biodiversity Convention — are generally more active in the context of cooperation, and those which have involved state parties as well as institutions within the cooperative arrangements — as in the case of the Basel, Stockholm and Rotterdam Conventions cluster — have succeeded in developing
deeper and more sophisticated levels of cooperation.

Whilst the success of these arrangements is inevitably variable, I conclude that overall they make a positive contribution to environmental governance and towards the attainment of the environmental
goals of the MEAs.  Nevertheless, it is important to note that there are also risks associated with closer cooperation; risks to the efficacy and, more particularly, to the legitimacy (actual and perceived) of the MEA.  Nevertheless, despite the risks, the creation of institutional cooperative arrangements between MEAs is increasingly becoming part of the landscape of international environmental law.  More generally, this trend is arguably changing that landscape and challenging the fundamentals of the international legal system itself: who we regard as participants within the
system, what the sources of international law are and even its ultimate basis in consent.

The full article may be accessed here.