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INTERNATIONAL LAW UC Davis, Winter Term, 2003
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Report 3. Compliance and
Enforcement in International Law: The Work of Sovereign States by Rachelle Pennington Table
of Contents Choosing a Sovereign
State: Reasons for Selection, Reputation for Compliance A conceptual analysis of compliance, implementation, and enforcement, as they relate to international law highlights a relationship rife with paradox. For, as pointed out by Mitchell, in assessing compliance, one discovers that the idea of compliance as "binary," is not really a reality, as "treaties can induce considerable beneficial behavioral changes that either falls short of actual compliance, strictu sensu, or goes beyond minimum treaty requirements." (1) In determining compliance, it "can only be reliably evaluated by determining whether and to what extent States and non-State actors altered their behavior to accord with the requirements of the provision," and more importantly, whether this led to an observable outcome.(2) And, although compliance with international law is near universal, this does not necessarily equate to a high level of effectiveness.(3) For, according to Haas et. al, to
achieve any degree of effectiveness, there are "three fundamental
conditions to be met."(4) Such as, the willingness of
governments to perceive of the threat as urgent enough for the allocation
of resources. Next, the capacity to honor the terms and conditions
of international agreements must be present. Finally, the domestic
political environment must be sufficiently open for the participation of
"civil society."(5) As we have learned previously, NGO's
can provide the main impetus for instituting governmental change.
They can assist even further, by aiding in monitoring and compliance. In seeking to understand the reasons for widespread compliance, two contrasting arguments surface. According to Antonia and Abe Chayes, states comply "out of a more general interest in maintaining good standing in the international community."(6) In contrast, Mitchell argues that the consensual nature of treaties "reflect the relative success of the different signatories in promoting their interests."(7) The latter argument would seem to undermine the belief that treaties have any real effect on behavioral changes at the international level, and lack of observable change would certainly illustrate failure of an agreement. When considering implementation, the notion of states complying out of good will, appears more appropriate. For lack of compliance is more often due to lack of capacity, than any other reason.(8) Therefore, the "good will" notion seems to more appropriately address this, as the interdependent nature of international agreements comes to life. It is particularly true that "positive measures," such as "financial cooperation; technology transfer; and differential implementation schedules and obligations," offer the most incentive for compliance.(9) In the case of Canada, its recent involvement in international environmental law is, "fueled by public opinion... and desirous of maintaining a favorable international reputation on the environmental front, (thus) the government of Canada has become more publicly active on environmental issues."(10) Its participation in the development of the Convention on Biodiversity is just an extension of this. In fact, on June 11, 1992, Canada became the first industrialized nation to sign the treaty. It was ratified within six months.(11) This symbolic gesture proves a high level of commitment on the part of Canada, and illustrates a desire to take a leadership role in the process of international lawmaking. However, tensions between its federal and provincial governments, often prevent it from achieving all its goals internationally. State Capacity for Meeting International Obligations Due to the broad nature of the
Convention on Biodiversity, and the high level of organization and
capacity on the part of the Canadian government, there are a number of
major departments with subsidiary agencies that have a direct involvement
in helping Canada achieve its environmental goals, such as: Canadian
International Development Agency These agencies cover a number of broad thematic areas contained within the Convention, although clearly Canada concerns itself heavily with sustainable development. That concern extends beyond its own borders as the Canadian International Development Agency illustrates. However, the Convention itself is not one that easily lends itself to direct enforcement. The direct action and implementation are clearly meant to take place at the national level, with the exceptions perhaps of technology transfer and the financial mechanisms directed toward poor nations. In part, because of the large scope of the Convention on Biodiversity, it is difficult to find laws specifically written to mandate the provisions of the treaty text. However, a few can be pointed out, such as the Fisheries Act, the Income Tax Act, the Marine Conservation Act (Bill C-10), the Oceans Act, and the 1996 accord for the protection of species at risk.(12) Even still, "relatively small proportions of the Convention and Strategy are directly oriented towards law and policy. That is certainly appropriate for, "it is what actually gets done, and how, that really matters in the long run."(13) Action, through program implementation, is where Canada proves strongest. Canada's conservation efforts are
strongest in the areas of programs and activities. Programs such as
the Habitat Stewardship program, directly involve individuals in the
activities of rehabilitation and protection.(14) The Ecological
Monitoring and Assessment Network, is a particularly hopeful endeavor as,
"the final priority for the future of EMAN is to
participate in international collaborations, improving linkages with
international programmes." (15) This agency's main function
is to analyze and report on ecosystem changes, and such activities are the
main impetus for the proper implementation of the Convention. The
1997 Canadian Forest Action Plan, was a three year project that had direct
connections to no less than 13 article in the Convention. (16) The
Canadian State Contributions to Compliance: Domestic and International It is difficult to assess Canada's actual contribution, as opposed to its symbolic contribution. Financially, its one of the largest contributors to the trust funds of the Convention's financial mechanism, donating nearly one million dollars for 2003. (18) However, by providing protection within its own boundaries for what amounts to "20 percent of the planet's wilderness, 24 percent of its wetlands, 20 percent of its freshwater; as well as 244,000 kilometers of coastline and a large arctic ecosystem that covers nearly 1/4 of the country's landmass,"(19) Canada contributes a great deal to the "common concern" that is biodiversity. (20) Outlined explicitly in its 2nd
national report, are the fifteen activities is has specifically engaged in
as result of the treaty. However, the list is mostly symbolic in
nature, consisting mainly of the basics, such as creating a Biodiversity
Convention Office and preparing national reports. (21) For a country
with as strong a capacity as Canada's, one would have hoped for
more. However, in its cooperative activities, it has shown itself to
be fairly involved in capacity building. The 2nd national
report discusses involvement in five initiatives, such as "efforts at
the Canadian International Development Agency (CIDA), and the
International Development Research Council (IDRC) in support of
biodiversity and sustainable use." (22) As mention earlier,
degree of capacity determines the likelihood of compliance. In its
efforts to assist in capacity building, the government of Canada, perhaps
contributes on a very large scale. By its own admission, "effort will be needed to understand the third objective of the Convention from a Canadian perspective and to determine how Canada will approach difficult issues such as access and benefit sharing." (23) This problem is not unique to Canada. Perhaps, with its substantial involvement in capacity building, in time it will come to contribute some technology transfer as a part of that effort. For now, it will have to content itself with being the very proud host country for the treaty secretariat, which is located in Montreal, Quebec. As in most democratic societies, NGO's play a large role in international environmental lawmaking. Canada is no exception, and its list of active participants is quite long. They range from specifically Canadian agencies such as, the Canadian Nature Federation, the Canadian Parks and Wilderness Society and the Canadian Wildlife Federation which concern themselves with environmental protections and wildlife at the provincial level, to NGO's that operate worldwide, such as the Sierra Club or the World Wildlife Fund. (24) There are, in fact, too many to name in this paper, but we can be assured that no area of environmental law is beyond the concern of these agencies. Finally, Canada has a well known reputation for being a socially progressive state. This reputation continues to improve all the time. The tension over the division of powers between 10 provincial governments and Canada' federal government continues to evolve, as "environmental groups have challenged the appropriateness of the closed and collaborative process of policymaking that characterized first-generation policy-making."(25) We can look forward to more changes in the future, as the previously closed chambers now become open to the participation of those who care about the integrity of that which belongs to us all. (1)D. Hunter, J. Salzman and D. Zaelke
(eds), International Environmental Law and Policy
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Wildlife Services Enforcement Branch, utilizes direct policing to
uphold the regulations of three major environmental laws, through
intelligence, investigation, and inspection. One of its stated goals
is: "The government of Canada realizes that legislation,
regulation and enforcement will continue to play essential roles in the
achievement of our environmental objectives."(17)
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