Copenhagen and Compliance

There are few international lawyers in the world who know more about climate change than Dan Bodansky. More generally, Dan is also an expert on international environmental law (IEL), and in this book he has distilled years of study and observation into a very readable yet sophisticated treatment of the subject. A successful overview and analysis of IEL is very hard to pull off well, and I recommend the book to anyone looking to understand this complex area of international law.

Dan rightly focuses substantial attention in the book on the issues of reporting, review, compliance, and effectiveness. (For simplicity I’ll label this package “review”).  Peter Haas has already pointed out one area in which IEL exhibits unusual features–the vast array of discrete treaties–and review is another. Partly as a function of this multiplicity of agreements, IEL has developed a very wide range of institutions that focus on review. While one can bemoan the fact that we don’t have a single World Environment Organization to rationalize the process of cooperation, there are advantages to having many discrete regimes. By dint of having so many different regimes experimenting with so many different processes, we can learn quite a bit about what works and what doesn’t in the area of review.

One of the most significant areas of debate in this regard has been over how to treat non-compliance. To some degree compliance is not actually that important. Since treaties can and often are tuned to produce compliance, such as by setting the legal standard to match pre-existing behavior, the real issue ought to be effectiveness: is the treaty successful at altering behavior from what it would otherwise be? But as a practical matter compliance is an important political and legal issue. How to treat non-compliance by a party is an ex post problem. There are, however, also ex ante effects to the focus on compliance.

Most strikingly, a focus on compliance can exacerbate the “tuning” problem I just noted. States may want to commit to a given regime but will often fear the unexpected costs that may result. This is particularly true in IEL where there are usually major but unpredictable economic implications to regulation. A cautious, prudential government will seek to match the international commitment as closely as possible to its current policy or policy trajectory.

This is one reason that–to recall our previous book club discussion at OJ–non-legally-binding agreements can have surprising utility. Lawyers often dismiss them, and so too do many other analysts. But one great advantage they have is that take away the problem of violating international law, and therefore, counterintuitively perhaps, can permit governments to be more ambitious in their cooperative efforts. To be effective, however, this strategy requires serious review, else the result will often be empty promises.

In this regard, consider the recent accord struck at Copenhagen over climate change. In many respects this accord is simply what was once called in the climate world “pledge and review”: each government pledges to do X or Y, and then that pledge is reviewed later. There is no legal commitment, but there is a political commitment. (In fact, the words “legally-binding” were expressly removed in the negotiations)

Will this result in serious efforts that will create real change in behavior? Or will states just maintain the status quo? Only time will tell, but for the first to occur not only will bold (ish) commitments be required, which we have yet to see. Those commitments will also have to be tied to some system of intensive but flexible review. Since unfortunately I don’t anticipate that this combination will occur–at least, with enough strength to really matter–I advise interested readers to look at another smart and prescient piece by Dan: “May We Engineer the Climate?”, Climatic Change, 1996.