Compliance and Enforcement in International Law: The Work of Sovereign States
External Links:
1.
Choosing a Sovereign State: Reasons
for Selection, Reputation for Compliance(by Eduardo Aguilar)
2. State Capacity for Meeting International Obligations (by Sophia Andritsakis)
3. State Contributions to Compliance: Domestic and International
4. Endnotes
Choosing a Sovereign State: Reasons for Selection, Reputation for Compliance
The difficulty with
today's system of international law resides in the lack of a formal
mechanism through which sovereign states may be held accountable for the
implementation of international law and policy. Unlike domestic law
( in which there exist a determined system through which laws are
enforced) the system of international law and policy lacks a a
supra-national authority through which the implementation of laws may be
enforced. In order to measure the effectiveness of international
law, political scientist have devised a system system of assessment that
is based on measuring the changes in behavior exhibited by sovereign
states (and individuals) in regards to the law or policy. This
system of measuring the extent of change within individual sovereign
states is called compliance. The compliance of a state, in
regards to the implementation of an agreed upon law or policy, provides
the measuring stick
through which the level of effectiveness of a treaty
can be assessed. When assessing the compliance of a sovereign state, we
cannot base it's success or failure from a binary standpoint in regard to
the treaty or law as a whole. Rather the compliance and
effectiveness of the implementation of sovereign states must be measured
"against treaty provisions"[1]
Though this system of analysis remains deficient in the sense that it does not provide a formal mechanism through which implementation can be enforced, it does provide for the ability of member states to assess the degree to which other member states are complying with the agreement. This phenomenon of compliance has sparked many different arguments as to the reason for the compliance of sovereign states given that there are no real punitive sanctions as a result of non-compliance[2]. The text book identifies two arguments for the aforementioned phenomenon. One of these arguments is presented through an excerpt from the work by Abram Chayes & Antonia Chayes' The New Sovereignty, and the other by Ronald Mitchell.[3] The prior focuses its argument on the hypothesis that sovereign states comply with international law out of "fear, [not] of specific sanctions but by a more general interest in maintaining good standing in the international community."[4] The theory presented by Ronald Mitchell finds its roots within the sphere of political realism in that it claims that sovereign states "tend to comply with international law because it is in their best interest to do so." [5]. Mitchell's principle argument focuses on the tendency of states to "act in accordance with a treaty's provisions because those provisions tend to reflect national policy preference." [6] These theories represent two of the more prevalent arguments for the compliance of sovereign states within the modern system of international law.
In regards to the
compliance of a sovereign state within a specific treaty the Vienna
Convention on the Protection of the Ozone Layer, and more specifically on
the provisions provided for in the Montreal Protocol, I will focus my
study on 
the sovereign state of New Zealand. New Zealand has paved
the way in steps taken to insure the implementation of the provisions of
the Montreal Protocol. One example of a step that has been taken by
New Zealand in response to the issue of the protection of the ozone layer
is the enactment of Ozone Layer Protection Act (1996).[7]
The Ozone Layer
Protection Act lays down the broad controls for ozone-depleting
substances. Its provisions include:
- a prohibition on the import, manufacture, sell or export products controlled by regulation except as allowed under the Regulations (Section 6)
- provision for exemptions for essential uses, such as the import of CFCs for meter dose inhalers for asthma and related conditions (sections 8 and 9)
- provision for the Minister for the Environment to require that people handling ozone-depleting substances develop codes of practice and/or know their obligations under the Act and have sufficient knowledge to be able to fulfill them (sections 10 to 13)
- making it an offence to release controlled substances knowingly during installation, servicing, operating or dismantling equipment (Section 13(f))
- provision for the making of Regulations to control ozone-depleting substances (Part III).[8]
Aside from enacting such acts of legislation to aid in the implementation of the provisions of the Montreal Protocol, New Zealand also takes a proactive stance on the issue by providing aid to neighboring countries in an attempt to secure the success of the protocol. In June of 2001:
…New Zealand [took] another step to protect the ozone layer by signing up to the latest amendment to the Montreal Protocol, Foreign Affairs and Trade Minister Phil Goff and Environment Minister Marian Hobbs announced today... "New Zealand is committed to this protocol. While this latest amendment has little effect for New Zealand, our signing shows our commitment to restoring the ozone layer to the rest of the world," they said. "Because the changes may affect some Pacific Island countries, New Zealand is assisting Pacific Island countries work towards ratification of the protocol through its overseas aid program." New Zealand is among the first to ratify the amendment, the provisions of which come into effect between 2002 and 2004. [9]
The proactive stance
displayed by New Zealand through such actions is a testament to their
commitment to the battle against the issue of ozone depletion. Aside
from enacting legislation and providing mechanisms through which it and
it's
neighbors can insure the successful implementation, New Zealand has also
taken it upon itself to conduct extensive research on the issue. One
of the leading research organizations in New Zealand is the
National Institute of Water & Atmospheric Research.
Established in 1992 as one of nine New Zealand Crown Research Institutes
(CRIs), NIWA’s mission is to provide a scientific basis for the
sustainable management and development of New Zealand’s atmospheric,
marine and freshwater systems and associated resources. As a CRI, NIWA
operates as a stand-alone company with its own board
of directors and its shares held by the Crown.[10]
The strong dedication that New Zealand has shown in their compliance with
the Montreal Protocol can serve as an example to other countries in their
compliance within international agreements.
State Capacity for Meeting International Obligations
New Zealand is
a country that places environmental protective policy as a high priority
on the agenda both domestically and internationally. New Zealand is a very
beautiful and ecologically diverse country; New Zealand has a substantial
interest in maintaining the current state of the environment, as well as
efforts to repair damage that has already occurred to the ecosystem. New
Zealand is party to most important international environmental treaties,
in addition, the country has instated its own laws to ensure treaty
compliance of various treaty standards within its own borders. The
government is actively involved, on many levels, in protecting the
environment through the help of closely linked agencies who: monitor,
analyze, and implement the collection of data.
The main department of the central government that overlooks environmental
laws and compliance is the Environmental Ministry which. For example, the 
Environmental
Ministry is responsible for the policy, import/ export of ODSs, and other
aspects of enforcement of the Montreal Protocol on Substances that deplete
the Ozone Layer and the domestic laws that act in conjunction with the
treaty. The Environmental Reporting Program was specifically designed to
collect and monitor data relating to the environment and treaties
implemented in New Zealand. The Environmental Performance Indicators
Program (EPI) was designed to develop and use indicators to measure and
report environmental protection. The governments main objectives for this
program are: (1) To systematically report the state of New Zealand's
environmental assets. (2) To systematically measure the performance of its
environmental policies and legislation. (3) To better monitor policy and
improve environmental decision making. [11] The goals of this program are
to raise the level of knowledge of New Zealand's environment, increase the
ability to report environment and health trends, provide tools for
effective evaluation of policy, and provide a information base for more
informed policy and management decisions. [12] In addition to the
Environmental Reporting Program, many central and local governmental
agencies, as well as universities, businesses, iwi, Crown Research
institutes are actively collecting environmental information to assist in
environmental decision making. This research is also conducted in order to
satisfy international reporting requirements. The EPI Program will build
on existing monitoring by other council and central government agencies
such as the Department of Conservation, the Ministry of Health, Crown
Research Institutes, and iwi.[13] Resource Management Agencies like
regional, district, and city councils play an important role in the
selection of indicators, identifying agreed monitor and analyze, and
implementing the collection of information.[14]
Since New Zealand is party to the Montreal Protocol on Substances that
Deplete the Ozone Layer it has enacted two major domestic laws that
incorporate the terms of the treaty: The Ozone Layer Protection Act 1996,
and the Ozone Layer Protection Regulations 1996. The Ozone Layer
Protection Act lays down the broad control for ozone depleting substances.
These controls include: a prohibition of the import/export of products
controlled by regulation, provisions
for exemptions for essential uses, provisions for the to develop codes of
practice, making it an offense to knowingly release controlled substances,
provisions for the making of regulations to control ODSs. [15] The
Ministry for Economic Development is responsible for enforcement of
legislation and managing the permit system for imports and exports. [16]
The ministry of Environment is responsible for policy, import/export
permits, and other aspects of enforcement.[17]
While the Ozone Layer Protection Act lays down the broad controls fro ODSs,
the Ozone Layer Regulations Protection 1996 contain the rules relating to
specific substances. Most controls are on the importations of bulk
substances, however, the regulations prohibit an array of products that
uses CFCs. These two acts have the main purpose of bringing New Zealand
into compliance with the Montreal Protocol and the subsequent amendments
that have been made since ratification. These acts implement and enhance
New Zealand's obligations to phase them out, and to limit access to
certain products containing them. In order to import these substances one
must apply for an import permit or exemption according to various
criteria.
State Contributions to Compliance: Domestic and International
The contributions made by New Zealand have been above average. Given the fact that New Zealand is one of the locations on the globe that is subjected to a higher depletion of ozone and therefore feels the repercussions at a higher level than anywhere else in the world, New Zealand has raised the bar on the regulation of ozone depleting substances. Not only has New Zealand been a member in almost every treaty that addresses the issue of ozone depletion, but it has also instituted domestic laws, and created programs through which the implementation of such regulations could be enforced. Along with strong state participation in addressing environmental issues, New Zealand also attracts a lot of attention from international NGO's (for a listing of NGO's click here) which help advocate, research, and develop many of the regulations implemented by the government of New Zealand.
The continuous push
for a stricter regulation of ozone depleting substances that has been made
by New Zealand can serve as a role model for some of its member
countries. Aside from being among the first to ratify many of the
agreements concerned with the ozone, is has also taken it upon itself to
institute domestic regulations in order to provide stronger mechanisms
through which its goals could be attained. One example of this
proactive stance taken by New Zealand is 
displayed
by its implementation of the Ozone
Layer Protection Act 1996 and the Ozone Layer Protection Regulations
of 1996. [18] These regulations were put into
place in order to compliment the steps that had already been taken by New
Zealand in its attempt to regulate and event "faze-out" of any
ozone depleting substances.
Along with creating domestic laws to aid in the fight against ozone depletion, New Zealand is acknowledging the need for a globally united effort in order to address the ozone problem. Some of the steps that they have taken include providing in depth research and analysis of the problem (through research institutions such as the National Institute for Water and Atmospheric Research Limited) but also by providing mechanisms through which smaller countries that lack the resources may be able to comply more readily with the provisions set forth by the Montreal Protocol and other such agreements. The commitment that has been displayed by New Zealand in it's efforts to implement the provisions of the Montreal Protocol and other agreements that address environmental issues have provided a prime example a sovereign states compliance and implementation of international laws and policies.
[2]Text 448
[3]text 449
[4]text 449
[5]text 452
[6]text 452
[7] http://www.niwa.cri.nz/services/uvozone/
[8] http://www.mfe.govt.nz/laws/ozone.html
[9] South Pacific Regional Environment Programme; located in Apia, Samoa - SPREP Newswire #84/01, June 2001
[10] http://www.niwa.co.nz/about/
[11]
http://www.environment.govt.nz.html
[12] http://www.environment.govt.nz.html
[13] http://www.environment.govt.nz.html
[14] http://www.environment.govt.nz.html
[15] http://www.med.govt.nz/ers/environment.html
[16] http://www.mfe.govt.nz/laws/ozone.html
[17] http://www.med.govt.nz/ers/environment.html
