oversight

International Environment: Literature on the Effectiveness of International Environmental Agreements

Published by the Government Accountability Office on 1999-05-01.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                  United States General Accounting Office

GAO               Staff Study




May 1999
                  INTERNATIONAL
                  ENVIRONMENT
                  Literature on the
                  Effectiveness of
                  International
                  Environmental
                  Agreements




GAO/RCED-99-148
Preface


          In December 1997, the United States and 37 other nations adopted the
          Kyoto Protocol to the 1992 United Nations Framework Convention on
          Climate Change. In it, they agreed in principle to significantly reduce their
          future greenhouse gas emissions. To obligate the United States to the
          emissions reductions, the advice and consent of the Senate would be
          needed. Whether the Senate should take that step has been widely
          debated, mainly because the reductions could be costly to the U.S.
          economy and their effectiveness in addressing the problem of global
          climate change has been questioned. Further fueling the debate is the fact
          that many of the protocol’s provisions, such as those for reporting data on
          compliance activities as well as those for monitoring and enforcing
          compliance, have not yet been fully specified. As a result, signatory parties
          do not know the full extent of what they will be required to do under the
          protocol, and it is unclear whether all the parties will meet their
          obligations for sharing the burden of the emissions reductions. During
          meetings in November 1998, the parties set a deadline of December 31,
          2000, for adopting the rules and procedures for compliance and
          enforcement, and the parties continue to work on developing those
          provisions.

          Ensuring compliance with environmental treaties is a widely recognized
          problem. Experts in the area acknowledge the need to better specify
          reporting, monitoring, and enforcement mechanisms, but little agreement
          exists on how best to do so and there is limited experience to point the
          way. There is consensus, however, that now—while those provisions for
          the Kyoto Protocol are being framed—is the time to explore these issues.
          To assist in that effort, we convened a panel of experts in December 1998
          to discuss these issues, and we will issue a report on the results of the
          expert panel later this year. To assist the panel, we prepared a background
          paper on ensuring compliance with international environmental
          agreements. We are publishing that background paper as a staff study to
          provide a brief summary of the current thinking on compliance issues for
          the Congress and other policy makers who are considering the workability
          of the Kyoto Protocol.




          Page 1                                 GAO/RCED-99-148 International Environment
Preface




For additional information, please call (202) 512-6111. The major
contributors to this study are Karla Springer; William H. Roach, Jr.; David
Marwick; John A. Crossen; and Leslie Albin.




David G. Wood
Associate Director, Environmental
  Protection Issues




Page 2                                GAO/RCED-99-148 International Environment
Page 3   GAO/RCED-99-148 International Environment
Contents



Preface                                                                                           1


Summary                                                                                           6
                      Data Reporting                                                              6
                      Monitoring                                                                  6
                      Enforcement                                                                 7


Chapter 1                                                                                         9
                      Background                                                                  9
Introduction          Objective, Scope, and Methodology                                          10


Chapter 2                                                                                        12
                      Data Are Critical to Determining Compliance                                12
National Data Often   Problems With Self-Reported Data Exist                                     12
Do Not Provide a      The Quantity of Reported Data Has Improved, but the Quality of             13
                        Data Is Questionable
Basis for Assessing   Data Reporting Requirements Under the Kyoto Protocol Are                   14
Nations’ Compliance     Minimal
With Agreements
Chapter 3                                                                                        15
                      Monitoring Is Needed to Ensure Compliance                                  15
Monitoring of         Most International Environmental Agreements Include Only                   16
International           Limited Monitoring Provisions
                      Experts Have Identified the Characteristics Needed for Effective           18
Environmental           Monitoring
Agreements Has Been   The Kyoto Protocol Contains Some Monitoring Provisions                     20
Limited
Chapter 4                                                                                        22
                      Few International Environmental Agreements Have Enforcement                22
International            Provisions, and Existing Provisions Are Not Used Effectively
Environmental         Secretariats Are Insufficiently Funded and Lack International              23
                         Jurisdiction to Enforce Agreements
Agreements Are        International Organizations Lack Jurisdiction to Enforce                   24
Rarely Enforced          Agreements
                      International Officials and Legal Scholars Suggest the Need for            25
                         Credible Enforcement Mechanisms




                      Page 4                               GAO/RCED-99-148 International Environment
               Contents




Bibliography                                                                             28




               Abbreviations

               CITES      Convention on International Trade in Endangered Species of
                               Wild Fauna and Flora
               GAO        General Accounting Office
               OECD       The Organisation for Economic Co-Operation and
                               Development
               UNEP       United Nations Environment Programme


               Page 5                              GAO/RCED-99-148 International Environment
Summary


                 Data on the results of nations’ activities undertaken to meet their
Data Reporting   international environmental obligations are the basis of determining
                 whether each nation is in compliance with the agreements to which it is a
                 party. Historically, such data have had problems, such as being incomplete
                 or inaccurate. As a result, it has often been difficult to determine whether
                 nations are meeting their obligations. For example, in 1996, we reported
                 that the data reported by nations to meet the requirements of the United
                 Nations Framework Convention on Climate Change (Framework
                 Convention) were often incomplete, unreliable, and inconsistent.1 More
                 recently, as a result of efforts to improve reporting, more complete data
                 are being reported. For example, it appears that the financial assistance to
                 developing countries provided through the Montreal Protocol on
                 Substances That Deplete the Ozone Layer has resulted in those nations
                 reporting better data under that protocol.2 However, according to experts,
                 data quality generally remains questionable.

                 Currently, the Kyoto Protocol to the Framework Convention (Kyoto
                 Protocol) contains the same general requirements and supplementary
                 guidelines for data reporting as the Framework Convention itself. The
                 general requirements for the Framework Convention include the
                 requirement to submit annually a national inventory of anthropogenic
                 (manmade) emissions. The details of methodology and the formats to be
                 used to present the data for those inventories—factors that would facilitate
                 analysis, understanding, and comparability of the data reported—are
                 contained in guidelines that provide considerable flexibility and do not
                 require parties to follow a specific procedure.


                 Monitoring is the second element necessary to determine whether a nation
Monitoring       individually, and all nations collectively, are complying with their
                 international commitments. Generally, monitoring includes the review and
                 analysis of data and other information that allow an assessment of the
                 impact or the extent of progress being made in meeting an agreement’s
                 stated goal or objective. Monitoring can be done to determine both
                 procedural compliance and effectiveness. Historically, monitoring
                 activities focused on whether nations implemented processes to transform
                 their international commitments into acceptable rules within their
                 domestic legal systems. However, because enacting domestic laws or

                 1
                 Global Warming: Difficulties Assessing Countries’ Progress Stabilizing Emissions of Greenhouse
                 Gases (GAO/RCED-96-188, Sept. 4, 1996).
                 2
                  The Montreal Protocol, adopted in 1987, augments the 1985 Vienna Convention for the Protection of
                 the Ozone Layer.



                 Page 6                                            GAO/RCED-99-148 International Environment
              Summary




              implementing policies does not ensure that international commitments
              will be met, more emphasis is now being placed on mechanisms that
              monitor effectiveness—that is, whether intended outcomes are being
              achieved.

              Self-reported information by the parties to an agreement is the basis for
              most monitoring that is done. Although international environmental
              agreements generally provide that the parties will submit periodic reports,
              these reports have rarely been used for carrying out an effective
              monitoring program. Recent studies attribute this to the limited nature of
              the monitoring provisions included in most of these agreements. The
              reason for the limited monitoring provisions most frequently cited in the
              current literature is a concern about compromising national sovereignty
              by allowing for monitoring by outside parties, considered by some to be
              external policing. Experts have identified several characteristics that
              should be included in a comprehensive monitoring system. One such
              characteristic is having specific authority and adequate resources for
              carrying out the monitoring function. The monitoring provisions contained
              in the Kyoto Protocol include some of these characteristics; for example,
              that expert teams will review the data reported by the parties. The United
              States proposed additional provisions that it believes would better ensure
              the effectiveness of the treaty in limiting greenhouse gases but that were
              not included in the protocol. For example, the United States proposed that
              comments be accepted from the public and other observers on the
              accuracy of the data provided by the parties.


              Enforcement is the final element needed to ensure that nations comply
Enforcement   with their international environmental obligations. Few agreements
              contain formal provisions for enforcement, however, and the enforcement
              provisions that do exist are used infrequently or inconsistently. For
              example, the Northwest Atlantic Fisheries Convention’s secretariat can
              adopt proposals to enforce the convention’s rules, but its power is limited
              to areas where coastal nations do not have jurisdiction. Secretariats and
              other international organizations—the groups typically charged with
              overseeing these agreements—are often ineffective at enforcement
              because they are inadequately funded and are limited in their international
              jurisdiction. This is the case with the United Nations Environmental
              Programme, established to promote international cooperation on
              environmental protection but constrained from doing so effectively,
              primarily by limited resources.




              Page 7                                GAO/RCED-99-148 International Environment
Summary




In recent years, several ways to build credible enforcement mechanisms
into international environmental agreements have been suggested;
however, there is no consensus on how best to do that. While enforcement
mechanisms for the Kyoto Protocol have not been specified, according to
the action plan adopted by the parties in November 1998, they will be
developed by the end of 2000.




Page 8                              GAO/RCED-99-148 International Environment
Chapter 1

Introduction


               The increased understanding of our environment and the recognition that
Background     environmental problems do not stop at national boundaries have resulted
               in global concern about the future of our planet and an increasing number
               of international agreements to address those concerns. Since 1972, when
               over 130 nations took part in the United Nations Conference on the
               Human Environment, the number of multilateral international
               environmental agreements has grown from fewer than 50 to more than
               170.

               Developing an international environmental agreement involves achieving a
               commitment among many nations with various levels of industrial
               development, technical capabilities, resources, and concern about an
               environmental problem. It is expected that the parties to the agreement
               then implement it within their countries by establishing the necessary
               laws, regulations, and administrative systems. Adopting commitments and
               implementing laws, however, do not necessarily lead to the changes in
               behavior that help to solve the environmental problem the agreement is
               attempting to address. Resources must also be provided to enforce the
               laws enacted and to evaluate the progress made, making adjustments, over
               time, as necessary.

               The United Nations Framework Convention on Climate Change
               (Framework Convention) was signed by 154 nations, including the United
               States, in 1992. The Framework Convention’s objective was to stabilize
               greenhouse gas concentrations in the atmosphere at a level that would
               prevent dangerous anthropogenic (manmade) interference with the
               climate system. Under the Framework Convention, both developed and
               developing countries agreed, for example, to develop and submit reports
               on their greenhouse gas emissions. In addition to the general provisions
               agreed to by all countries, developed countries agreed to report on their
               policies and measures with the aim of returning their greenhouse gas
               emissions to 1990 levels by the year 2000. However, this goal was not
               binding on the developed countries.

               The Framework Convention entered into force in 1994, and the United
               States was one of the first nations to ratify it. However, by 1995, the
               parties to the convention realized that insufficient progress was being
               made toward its goals and thus decided to begin negotiations on a legally
               binding protocol. In December 1997, the parties reconvened in Kyoto,
               Japan, to finalize binding measures to reduce greenhouse gas emissions.
               The resultant Kyoto Protocol to the Framework Convention established
               binding emissions reductions for the period 2008 through 2012 for



               Page 9                               GAO/RCED-99-148 International Environment
                            Chapter 1
                            Introduction




                            developed countries and laid the groundwork for additional measures
                            aimed at decreasing greenhouse gas emissions.3

                            A number of important issues were not addressed at Kyoto: the role of
                            developing nations, the specifics of an emissions-trading program (agreed
                            to in principle), and procedures for determining, and consequences for,
                            noncompliance. Negotiations are continuing on these issues, including
                            provisions that might specify data-reporting requirements, monitoring
                            mechanisms, and enforcement procedures. The Kyoto Protocol, initially
                            adopted by 38 nations, was open for signature by all nations until
                            mid-March 1999. As of that deadline, 84 nations, including the United
                            States, had signed, thereby affirming their commitment to work to meet
                            the protocol’s ambitious goals. U.S. ratification of the Kyoto Protocol,
                            which requires the advice and consent of the Senate, is uncertain at this
                            time.

                            The official representatives of all the countries that have ratified the
                            Framework Convention constitute its Conference of the Parties. This body
                            held its first session in 1995 and will continue to meet annually unless
                            decided otherwise. The Conference of the Parties is served by a
                            secretariat, which administers the agreement. Among other things, the
                            secretariat arranges for conference meetings, drafts official documents,
                            compiles and transmits reports submitted to it, assists the parties in
                            compiling and communicating information, coordinates with the
                            secretariats of other relevant international bodies, and reports on its
                            activities to the Conference of the Parties. The secretariat is operationally
                            independent of the United Nations, but it is linked to the United Nations
                            and its head is appointed by the U.N. Secretary-General in consultation
                            with the parties to the Framework Convention.


                            The objective of this study was to provide background information on
Objective, Scope, and       provisions that help ensure compliance with international environmental
Methodology                 agreements, namely data reporting, monitoring, and enforcement. For the
                            purposes of this study, we will use the following definitions for those
                            terms with respect to international environmental agreements:

                        •   Reporting is providing measurable data on activities undertaken in
                            response to international obligations.


                            3
                             While the Kyoto Protocol specifies that the emissions reductions are binding, the parties have yet to
                            specify the consequences of not reaching the reduction targets. Those provisions are scheduled to be
                            complete by year-end 2000.



                            Page 10                                             GAO/RCED-99-148 International Environment
    Chapter 1
    Introduction




•   Monitoring is the review and analysis of the data and other information
    that allows assessment of the impact or extent of progress being made in
    meeting the agreement’s stated goal or objective.
•   Enforcement is a strategy adopted by the parties to an agreement that
    establishes consequences for a party’s noncompliance with its obligations
    under the agreement.

    In examining how to improve nations’ compliance with their international
    environmental obligations, we are taking a “results-oriented” approach.
    That is, we will explore those aspects of reporting, monitoring, and
    enforcement that are designed to ensure that signatory nations’ actions
    result in achieving the Framework Convention’s objectives.

    We surveyed our past reports and other relevant literature on the subject
    and summarized the results of our analysis. (See the bibliography for a list
    of the works we included in this effort.) The information presented in this
    study draws on information provided by a number of authors. We tended
    to cite those authors who provided specific examples to illustrate the
    points made. We did not attempt to verify the accuracy of the information
    presented in the literature. Our expert panelists, including an official from
    the Department of State, reviewed a draft of this study, and we
    incorporated their comments where appropriate. Susan R. Fletcher, Senior
    International Environmental Policy Analyst, Congressional Research
    Service, also contributed to this study. We performed our work from July
    1998 through May 1999.




    Page 11                               GAO/RCED-99-148 International Environment
Chapter 2

National Data Often Do Not Provide a Basis
for Assessing Nations’ Compliance With
Agreements
                       Data on the activities that nations are undertaking to meet their
                       international environmental obligations are the basis of determining
                       whether each nation is in compliance with the agreement to which it is a
                       party. Historically, such data have had problems, such as being incomplete
                       or inaccurate. As a result, it has often been difficult to determine whether
                       nations are meeting their obligations. More recently, efforts to improve
                       reporting rates have resulted in more complete data on nations’
                       compliance activities. However, data quality remains questionable.
                       Currently, the Kyoto Protocol’s requirements for data reporting consist of
                       general requirements and supplemental guidelines. These guidelines
                       provide the parties with considerable flexibility.


                       Data on the activities that nations undertake to respond to their
Data Are Critical to   international environmental obligations are the basis of evaluating
Determining            whether nations have fulfilled those obligations. The data form the first
Compliance             step in the evaluation process by providing measurable information on the
                       results of nations’ activities. Once the activities have been measured, the
                       data can be verified for accuracy, compared with the performance criteria,
                       and otherwise examined to conclude whether a nation has achieved the
                       agreed-to results. To be useful, the data must meet a number of criteria,
                       including completeness, accuracy, understandability, uniformity, and
                       timeliness.


                       The data on nations’ activities typically result from a requirement in most
Problems With          international environmental agreements that each nation report on its own
Self-Reported Data     behavior. Our studies and those by others have shown that national data
Exist                  reports have many problems. For example, in 1996 we examined the
                       progress of the United States and other signatory nations in meeting the
                       goal of the Framework Convention to reduce greenhouse gas emissions to
                       1990 levels by 2000. The Framework Convention requires signatory
                       nations to adopt policies and measures to limit greenhouse gases and to
                       submit detailed plans showing how each will help emissions return to 1990
                       levels. We reported, however, that the nations’ self-reported emissions
                       data were often incomplete, unreliable, and inconsistent.4 For example, as
                       of February 1996, some data on 1990 emissions levels were available for
                       only 29 of the 36 parties to the Framework Convention.5 The data were
                       incomplete largely because the Framework Convention’s reporting

                       4
                       Global Warming: Difficulties Assessing Countries’ Progress Stabilizing Emissions of Greenhouse
                       Gases, p. 2.
                       5
                        The United States and other countries signed the Framework Convention in 1992.



                       Page 12                                           GAO/RCED-99-148 International Environment
                     Chapter 2
                     National Data Often Do Not Provide a Basis
                     for Assessing Nations’ Compliance With
                     Agreements




                     requirements were not specific and were developed only after some
                     nations had submitted their reports. Consequently, the nations’ progress in
                     meeting the convention’s goals could not be fully assessed. According to
                     experts, ambiguity in the language of international environmental
                     agreements frequently contributes to these types of data problems.

                     In its October 1998 report on monitoring and reporting under the Kyoto
                     Protocol, the Organisation for Economic Co-Operation and Development
                     reported further that, after two full rounds of national reporting under the
                     Framework Convention, a number of important gaps in reporting were
                     apparent: data were missing, parties submitted their reports late, and
                     information about how the data were prepared was lacking.6


                     Problems with self-reported data have long been recognized, and in
The Quantity of      response, some international environmental agreements have begun
Reported Data Has    including provisions to improve reporting rates. One way to improve data
Improved, but the    reporting is through financial assistance to developing nations that lack
                     the administrative capacity to fulfill their reporting requirements. For
Quality of Data Is   example, the Montreal Protocol on Substances That Deplete the Ozone
Questionable         Layer (Montreal Protocol) has a multilateral fund designed to boost
                     developing nations’ activities to comply with the protocol’s provisions.7
                     The fund pays for projects in developing nations that gather baseline data
                     and build the administrative capacity to report the data. According to
                     experts, this financial assistance to developing nations has resulted in
                     better self-reporting of certain data under the Montreal Protocol. These
                     improvements notwithstanding, the poor quality of self-reported data
                     continues to be a problem under international environmental agreements.
                     Experts familiar with numerous studies of the issue have noted that the
                     data continue to be difficult to compare and their accuracy is often low or
                     unknown.8




                     6
                      Jan Corfee Morlot, Monitoring, Reporting and Review of National Performance Under the Kyoto
                     Protocol, OECD Information Paper (Paris, France: Organisation for Economic Co-Operation and
                     Development, 1998), pp. 5, 29.
                     7
                      The Montreal Protocol, adopted in 1987, augments the 1985 Vienna Convention for the Protection of
                     the Ozone Layer.
                     8
                      International Institute for Applied Systems Analysis, The Implementation and Effectiveness of
                     International Environmental Commitments: Theory and Practice, eds., David G. Victor, Kal Raustiala,
                     and Eugene B. Skolnikoff (Cambridge, Mass.: MIT Press, 1998), pp. 111, 678-80.



                     Page 13                                           GAO/RCED-99-148 International Environment
                     Chapter 2
                     National Data Often Do Not Provide a Basis
                     for Assessing Nations’ Compliance With
                     Agreements




                     The Kyoto Protocol incorporated the general reporting requirements and
Data Reporting       supplemental guidelines of the Framework Convention. Parties are
Requirements Under   required to submit to the secretariat a national inventory of anthropogenic
the Kyoto Protocol   emissions of greenhouse gases, a general description of steps taken or to
                     be taken to implement the protocol, and any other information that the
Are Minimal          party considers relevant. In addition to these requirements, the parties
                     adopted guidelines that recommend methodologies for the parties to use
                     in gathering their inventory data, the level of detail to include in the
                     reports, and presentation formats to follow. The guidelines were
                     developed to help ensure that the national reports are consistent and
                     comparable; however, they provide considerable flexibility and do not
                     require parties to follow a specific procedure. In addition, the protocol
                     currently does not specify any penalties for not meeting the general
                     requirements or following the guidelines. According to the work plan
                     adopted by the parties in November 1998, those are to be developed by the
                     end of 2000.




                     Page 14                                      GAO/RCED-99-148 International Environment
Chapter 3

Monitoring of International Environmental
Agreements Has Been Limited

                       Monitoring is necessary to determine whether a nation individually, and all
                       nations collectively, are complying with their international environmental
                       obligations. Until recently, international environmental agreements had
                       few established formal mechanisms for monitoring. Periodic reporting by
                       the parties was the primary monitoring mechanism included in such
                       agreements; however, effective use of the reports for carrying out the
                       monitoring function has been limited. Experts have suggested several
                       characteristics that should be included in a comprehensive monitoring
                       system. The Kyoto Protocol has specified some basic provisions for
                       monitoring. The United States proposed additional provisions that might
                       better ensure the effectiveness of the agreement to limit greenhouse gases,
                       but these provisions have not as yet been included in the protocol.


                       The monitoring done under international environmental agreements
Monitoring Is Needed   includes the review and analysis of reported data and other information
to Ensure Compliance   that allow assessment of the impact or extent of progress being made in
                       meeting a stated goal or objective, such as implementing an agreement’s
                       provisions. Monitoring can also include independent verification that
                       involves determining whether the reported data or other information
                       accurately reflects the existing situation or condition. Verification can be
                       done through performing on-site inspections, obtaining information from
                       another source, or doing an independent analysis and reaching the same
                       conclusion as the original assessment.

                       Monitoring can determine both procedural compliance and
                       effectiveness—that is, whether intended outcomes are being achieved.
                       Historically, most monitoring activities have focused on whether nations
                       have implemented processes to transform their international obligations
                       into acceptable rules within their domestic legal systems. However, the
                       implementation of domestic policy or laws that conform to an agreement,
                       commonly referred to as compliance, does not ensure that the agreement’s
                       goals or objectives will be achieved. Meeting the goals of international
                       environmental agreements generally requires influencing the behavior not
                       only of governments but also of a large number of firms, individuals,
                       agencies, and other entities that do not necessarily change their behavior
                       simply because governments have signed an agreement. Thus, influencing
                       the behavior of these entities often entails a complex process of forming
                       and adjusting domestic policy to conform to the standards contained in an
                       agreement.




                       Page 15                                GAO/RCED-99-148 International Environment
                        Chapter 3
                        Monitoring of International Environmental
                        Agreements Has Been Limited




                        According to experts, international law is filled with examples of
                        agreements that have had high formal levels of compliance but have had
                        only limited influence on the behavior of the regulated entities. For
                        example, from the inception of the International Convention for the
                        Regulation of Whaling in 1946 until the early 1960s, the level of compliance
                        with its catch quotas was nearly perfect. This was because those quotas
                        were set very high and did not require the parties to decrease their
                        catches.9 Determining whether the goals and objectives are being met
                        requires going beyond implementation to evaluate effectiveness. Thus,
                        effectiveness is the extent to which international agreements lead to
                        changes in behavior that help to solve environmental problems. Recently,
                        more attention has been given to whether performance targets—such as
                        emission targets like those specified in the Kyoto Protocol—have been
                        met.

                        International environmental agreements such as the Kyoto Protocol can
                        involve a substantial economic investment by countries that are serious
                        about implementation. In addition, because of the large number of entities
                        within each country that may have to change their behavior if the
                        objectives of the agreement are to be achieved, extensive monitoring over
                        large geographic areas may be required, making the monitoring function
                        itself costly. Particularly where the costs of implementation are high,
                        parties to international agreements may be reluctant to implement the
                        measures needed to ensure that commitments are met unless they are
                        confident that others will do the same. In these cases, having mechanisms
                        included in the agreements to monitor when and how parties are
                        implementing these measures can help to build confidence that
                        agreements are, in fact, being put into practice.


                        Until recently, international environmental agreements have contained
Most International      few substantive mechanisms for monitoring and evaluation. Although
Environmental           several agreements have provided for periodic reporting by the parties,
Agreements Include      these reports have rarely been used to carry out an effective monitoring
                        program. Recent studies provide some possible reasons for the limited
Only Limited            nature of monitoring. One possible reason is the concept of state
Monitoring Provisions   sovereignty, which has resulted in nations not being willing to accept
                        external scrutiny. One author pointed out, for example, that nations find it
                        difficult to relinquish some of their sovereign authority to an international



                        9
                         Implementation and Effectiveness of International Environmental Commitments, p. 7.



                        Page 16                                           GAO/RCED-99-148 International Environment
Chapter 3
Monitoring of International Environmental
Agreements Has Been Limited




organization.10 For this reason, nations have been allowed to monitor or
report on their own compliance and thus avoid any potential sovereignty
questions that could result from external monitoring. However, at least
partly because of the problems of low reporting rates and quality of
reported data as discussed in the previous chapter, the effectiveness of
such self-monitoring provisions is questionable.

Another possible reason is that international environmental agreements
generally do not provide specific authority or adequate resources to carry
out an effective monitoring function. As we pointed out in our 1992 report
on the monitoring of international environmental agreements, generally
the role of the treaty secretariats established by the parties is to help
implement agreements by collecting and distributing information and
providing some technical assistance.11 We further stated, however, that
although most of the secretariats had distributed lists of nonreporting
parties at various times to generate peer pressure to stimulate compliance
with reporting provisions, they had not been given the authority to
monitor the agreements through verifying the information parties reported
or independently assessing compliance.

In addition, of the eight major international environmental agreements
reviewed in that report, only one—the Convention on International Trade
in Endangered Species of Wild Fauna and Flora (CITES), ratified by 112
countries—granted its secretariat specific authority and established a
formal mechanism for assessing compliance. Under this agreement, the
secretariat analyzes the data it receives and publishes reports detailing
violations. In the case of particularly egregious violations, the secretariat
may also recommend that parties cease trading with the particular party
found to be in noncompliance.

With respect to funding, we also stated in our 1992 report that secretariats
generally had limited and unstable funding. We showed that the
secretariats of the eight agreements we reviewed were small
organizations, with staffs of 4 to 20 people and annual budgets of less than
$1 million to $3 million in 1990. We pointed out that each secretariat was
funded by voluntary contributions from parties and/or by resources
apportioned by a related parent organization, which in many cases also
operate largely on financial contributions from member nations. For


10
 Andrew Watson Samaan, “Enforcement of International Environmental Treaties: An Analysis,”
Fordham Environmental Law Journal, Vol. 5 (Fall 1993), p. 278.
11
   International Environment: International Agreements Are Not Well Monitored (GAO/RCED-92-43,
Jan. 27, 1992), pp. 28-33.



Page 17                                          GAO/RCED-99-148 International Environment
                       Chapter 3
                       Monitoring of International Environmental
                       Agreements Has Been Limited




                       example, CITES had a staff of 18 and funding of about $2.5 million in 1990.
                       The secretariat’s officials told us that parties had never approved a budget
                       with sufficient funds to cover all of the activities needed to implement the
                       agreement. In addition to its administration duties and assessing the
                       compliance of its 112 member nations, this secretariat also conducted
                       studies to help determine whether certain species should be protected
                       under CITES and provided certain technical assistance.

                       Among other possible reasons for the lack of monitoring provisions is that
                       the nature of the agreement or the environmental problem being
                       addressed does not require the need for detailed monitoring provisions. In
                       some cases, agreements may not require parties to change their behavior,
                       and thus monitoring for compliance is not required. The high catch quotas
                       established by the International Convention for the Regulation of Whaling
                       between 1946 and the early 1960s, cited earlier in this chapter, are an
                       example of such an agreement. Recent studies, however, indicate that
                       more frequently now than in the past, international environmental
                       agreements are requiring regular reporting by the parties and reviews of
                       these reports and, in some cases, include mechanisms for verification.


                       Experts have identified three factors that should be included in an
Experts Have           agreement to establish effective monitoring and verification. First, they
Identified the         have suggested that authority and responsibility for carrying out the
Characteristics        monitoring function need to be specified and that adequate resources need
                       to be provided. According to one expert, successive rounds of subjecting
Needed for Effective   data to a monitoring process generally provide an incentive for parties to
Monitoring             improve the quality of reported data.12

                       Next, some experts have suggested that specific criteria and standard
                       monitoring techniques need to be established to ensure their perceived
                       legitimacy. Many experts believe that ambiguity or vagueness of treaty
                       language, obligations, and requirements makes implementing international
                       commitments and judging compliance difficult. Studies have shown that
                       how an international agreement is constructed—the exact commitment, its
                       scope, clarity, and application—can be critical to its success. Furthermore,
                       as stated by one expert, implementation experiences of nations often vary
                       because of differences in their interpretation of the commitments.13 As a
                       result, some experts have suggested that agreements should include a
                       review process with specific review and evaluation procedures. One study

                       12
                         Implementation and Effectiveness of International Environmental Commitments, p. 680.
                       13
                         Implementation and Effectiveness of International Environmental Commitments, p. 659.



                       Page 18                                           GAO/RCED-99-148 International Environment
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Monitoring of International Environmental
Agreements Has Been Limited




also suggests that guidance on the nature of the reviews should be clear
and the review function should be overseen by the secretariat to ensure its
neutrality and consistency.14 Another study, prepared for EPA’s Office of
Policy, stated that monitoring procedures need to be carefully considered.
The study stated that the procedures developed must be credible but not
overly bureaucratic. In addition, according to the study, strict rules lead to
complex procedures, increasing the cost of compliance and reducing an
agreement’s cost-effectiveness; conversely, if the rules are too loose, then
the parties can manipulate the results.15

Finally, experts have suggested that the monitoring function should be
transparent and provide for participation and comments by interested
parties. Making both the information and the methodologies that were
used to compile that information widely available and permitting
participation in the policy process are basic tenets of modern governance.
The right to have access to such information on the environment is a
recent development in international law. Public dissemination of
information about parties’ progress can play a key role in the
implementation of environmental agreements. Specifically, the
information serves to assure each party that others are sharing the burden
of implementation as agreed, which is particularly important in light of the
high costs and the effects on international competitiveness that may result
from implementing an agreement.

Our 1992 report suggested, for example, that when the costs of
implementing an agreement are high, nations might be more willing to
open up their actions for review to ensure that implementation is equitable
and that all parties are honoring their commitments. In addition, the
sharing of information allows not only a comparison of the experiences of
the nations reviewed but also an assessment of what is working and what
opportunities exist to adjust goals or procedures, as needed.

According to some experts, participants should include not only
environmental and public interest nongovernmental organizations but also
the target groups that must change their behavior if an agreement’s goals
are going to be met. Worker and employer representation is a feature, for
example, of the International Labor Organization, a specialized agency of
the United Nations that coordinates the development and implementation
of more than 160 international labor conventions intended to safeguard

14
  Monitoring, Reporting, and Review of National Performance Under the Kyoto Protocol, pp. 27-28.
15
 Edward Vine and Jayant Sathaye, The Monitoring, Evaluation, Reporting, and Verification of Climate
Change Mitigation Projects: Discussion of Issues and Methodologies and Review of Existing Protocols
and Guidelines (Berkeley, Calif.: Lawrence Berkeley National Laboratory, Dec. 1997), p. ii.


Page 19                                           GAO/RCED-99-148 International Environment
                        Chapter 3
                        Monitoring of International Environmental
                        Agreements Has Been Limited




                        workers’ rights and ensure safe workplaces. This organization requires its
                        member nations to regularly submit reports to the worker and employer
                        representatives for comments, which are subsequently reviewed by an
                        independent body appointed by the organization. According to one expert,
                        target group participation would also provide better information on the
                        range of possible policy options, technical feasibility, and costs and
                        benefits.16


                        The Kyoto Protocol contains various monitoring provisions. Among other
The Kyoto Protocol      things, expert teams are to review the information in national reports
Contains Some           submitted by the parties. Other provisions—suggested by the United
Monitoring Provisions   States to strengthen monitoring—were not incorporated into the protocol.

                        The monitoring provisions in the protocol state that information contained
                        in the parties’ national reports is to be reviewed by teams of experts
                        nominated by the parties and by intergovernmental organizations. The
                        teams are to conduct the reviews by following guidelines and relevant
                        decisions provided by the Conference of the Parties. According to the
                        protocol, the review process will provide a thorough and comprehensive
                        technical assessment of all aspects of the protocol’s implementation by a
                        party. The protocol further states that the review teams will prepare a
                        report to the Conference of the Parties that assesses the implementation
                        of the commitments and identifies any potential problems in, and factors
                        influencing, the fulfillment of commitments.

                        Under the protocol, the secretariat will coordinate the review teams,
                        circulate the teams’ reports to all parties to the Framework Convention,
                        and identify questions about parties’ implementation indicated by the
                        reports for further consideration by the Conference of the Parties. In
                        addition to establishing the guidelines for the reviews, the Conference of
                        the Parties will consider the reports of the expert review teams along with
                        the information submitted by the parties and those implementation
                        questions identified by the secretariat.

                        Prior to the development of the Kyoto Protocol, the United States
                        proposed provisions for the Framework Convention’s monitoring process.
                        Although the protocol included many of these features, among them the
                        use of independent review teams and the establishment of guidelines for
                        the review process by the Conference of the Parties, it omitted several
                        others. First, the U.S. proposal explicitly provided that the review teams

                        16
                          Implementation and Effectiveness of International Environmental Commitments, p. 666.



                        Page 20                                           GAO/RCED-99-148 International Environment
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Monitoring of International Environmental
Agreements Has Been Limited




would assess both the progress of implementation and the effectiveness of
meeting the protocol’s goals. The proposal provided for assessing the
effectiveness of the compliance and enforcement programs established as
well as the individual measures reported. Second, the U.S. proposal
included specific mechanisms that would allow observers and the public
to provide comments and supplemental data to facilitate and improve the
reviews.

Adopting these specific suggestions would increase the transparency of
the process and help to provide assurance that the actions being taken will
achieve the Kyoto Protocol’s objectives. Although these specific
suggestions were not incorporated into the monitoring provisions of the
protocol, it is possible that when the guidelines for the review process are
established, they will include additional portions of the U.S. proposal.




Page 21                                     GAO/RCED-99-148 International Environment
Chapter 4

International Environmental Agreements
Are Rarely Enforced

                      Enforcement is the final element needed to help ensure that nations
                      comply with their international environmental obligations. Few
                      agreements contain formal provisions for enforcement, however, and the
                      enforcement provisions that do exist are used infrequently or
                      inconsistently. Limited funding and international jurisdiction are two of
                      the reasons that the enforcement of international environmental
                      agreements has not been effective. International organizations, such as the
                      United Nations Environment Programme (UNEP), often lack the
                      jurisdiction to enforce their decisions.

                      In recent years, ways to build credible enforcement mechanisms into
                      international environmental agreements have been suggested, but no
                      consensus exists on how best to do that. To date, enforcement provisions
                      have not been specified for the Kyoto Protocol, even though the emissions
                      targets are supposed to be binding on the parties. In designing those
                      provisions to be effective, a number of issues, such as the funding of an
                      enforcement authority, international jurisdiction problems, and penalties,
                      should be taken into consideration. At the fourth Conference of the Parties
                      in Buenos Aires in November 1998, a work plan to complete the
                      enforcement provisions by year-end 2000 was agreed to.


                      Few international environmental agreements contain enforcement
Few International     provisions; it is generally thought that if stringent provisions were
Environmental         included, fewer nations would participate and treaty obligations would be
Agreements Have       weaker. Instead, the enforcement of compliance with treaty obligations
                      generally depends on peer or public pressure on nations. Even when
Enforcement           agreements do include enforcement provisions, resource constraints and
Provisions, and       other factors may limit their effectiveness.
Existing Provisions   For example, according to one expert, the Commission on the
Are Not Used          Conservation of Antarctic Marine Living Resources was established to
Effectively           function as the primary conservation organization for the southern
                      Atlantic Ocean. However, the secretariat for the commission is limited in
                      its enforcement capacity in two key respects. First, the agreement has no
                      specific enforcement procedures—the only enforcement mechanism at the
                      secretariat’s disposal is its ability to publicize nations’ noncompliance.
                      Second, according to the agreement, the secretariat’s decisions must have
                      the support of a consensus of the members, thus effectively giving any
                      member the right to veto any proposed enforcement measures against it.




                      Page 22                               GAO/RCED-99-148 International Environment
                        Chapter 4
                        International Environmental Agreements
                        Are Rarely Enforced




                        Although some international environmental agreements contain
                        enforcement provisions, these provisions are used infrequently or
                        ineffectively. For example, the Northwest Atlantic Fisheries Convention,
                        which applies to all waters of the northwest Atlantic Ocean, has the
                        authority to establish and allocate fishing quotas for all convention
                        members. The convention’s Fisheries Commission, which is the body
                        responsible for managing the convention’s resources, can adopt proposals
                        for the enforcement of the convention’s rules. However, the commission
                        has jurisdiction only in the area that is beyond the coastal nations’
                        200-mile economic zone; thus, the commission has no jurisdiction over
                        some of the most productive fishing areas. In addition, the convention
                        allows any member of the agreement to exempt itself from any
                        enforcement proposal by the commission by lodging an objection. The
                        convention also allows members to choose not to be bound by the
                        commission’s rules already in force. Finally, although the convention
                        allows members to board and inspect the vessels of other member nations,
                        only the nation under whose flag a vessel is operating can prosecute and
                        sanction a vessel’s owner for violations. Nations are often reluctant to
                        penalize their own vessels. As one study of the convention’s 1993 records
                        showed, of 49 vessels charged with offenses, only 6 were prosecuted.17

                        Finally, as several experts have pointed out, the ambiguity of the language
                        and definitions in international environmental agreements makes
                        enforcement of their provisions problematic because it is difficult to
                        determine whether a nation has met its obligations. Consequently,
                        secretariats spend their time and resources dealing with contested actions
                        by member nations rather than enforcing compliance and bringing
                        pressure on acknowledged violators.


                        According to one expert, the secretariats for international environmental
Secretariats Are        agreements are in the logical position to enforce compliance with treaty
Insufficiently Funded   obligations.18 However, most secretariats do not have enforcement
and Lack                authority. Those that do have the authority may be limited in their
                        enforcement ability for two reasons. First, because their funding is limited
International           or unstable, as discussed earlier, they often lack the institutional capacity
Jurisdiction to         to fulfill all of their responsibilities. Second, the secretariats lack the
                        international jurisdiction that is needed to carry out enforcement.
Enforce Agreements      Therefore, secretariats have no means of forcing member nations to abide

                        17
                          David S. Ardia, “Does the Emperor Have No Clothes? Enforcement of International Laws Protecting
                        the Marine Environment,” Michigan Journal of International Law, Vol. 19 (Winter 1998), pp. 531-3.
                        18
                          “Does the Emperor Have No Clothes?,” p. 512.



                        Page 23                                          GAO/RCED-99-148 International Environment
                     Chapter 4
                     International Environmental Agreements
                     Are Rarely Enforced




                     by the rules established by the agreements. As a result, secretariats rarely
                     act as enforcers. Secretariat officials stress that they have neither the
                     resources nor the authority to perform enforcement and that they, instead,
                     view themselves as information clearinghouses and facilitators.


                     No centralized regulatory body has jurisdiction or enforcement authority
International        for international environmental agreements. As a result, the effectiveness
Organizations Lack   of international agreements depends almost entirely on voluntary
Jurisdiction to      compliance.
Enforce Agreements   According to experts, the United Nations General Assembly, in 1972,
                     established UNEP with a governing council and secretariat to promote
                     international cooperation on environmental protection and to coordinate
                     environmental action within the United Nations. However, UNEP is
                     relatively small, limited by personnel and financial constraints. It does not
                     have the ability to create binding international law and must rely on
                     member nations to implement and comply with its enforcement policies.
                     In the assessment of many observers, UNEP has generally not been an
                     effective oversight and enforcement institution because of its limited
                     formal powers. In addition, UNEP’s funding has been criticized as
                     inadequate because its primary source is voluntary contributions to its
                     Environment Fund. In 1993, the UNEP Governing Council acknowledged
                     these limitations when it shifted its focus from environmental monitoring
                     to helping developing countries use environmentally sound technologies.

                     Without an organization to enforce international environmental
                     agreements, compliance depends on the willingness of nations to abide by
                     the provisions and enforce compliance among their citizens. When
                     complying with a particular provision or commitment becomes contrary to
                     a nation’s interests—for either sociopolitical or economic reasons—it is
                     less likely that the nation will enforce compliance. In addition, many
                     countries, particularly developing countries, lack the financial and
                     technological capacity to meaningfully enforce environmental
                     regulations.19




                     19
                      “Enforcement of International Environmental Treaties,” p. 273; and “Does the Emperor Have No
                     Clothes?,” pp. 505, 510, 512-3, 523-4.



                     Page 24                                          GAO/RCED-99-148 International Environment
                          Chapter 4
                          International Environmental Agreements
                          Are Rarely Enforced




                          In recent years, ideas about how to enhance enforcement of international
International Officials   environmental agreements have emerged. Two multilateral documents and
and Legal Scholars        one country report have set forth enforcement proposals for protecting
Suggest the Need for      the international environment. Academic theories provide additional
                          recommendations. However, there is little agreement on how to improve
Credible Enforcement      the enforcement of agreements, and, currently, the Kyoto Protocol does
Mechanisms                not include provisions for enforcement. The following are some recent
                          proposals for enhancing enforcement.

                          The World Commission. In 1987, a group of legal experts of the World
                          Commission on the Environment and Development proposed the creation
                          of a centralized organizational structure, a Commission for the
                          Environment, to oversee international environmental agreements and to
                          hear nations’ complaints about violations.20 A United Nations High
                          Commissioner would head the commission, hear complaints about
                          violations, and issue reports on the violations. (This plan for a high
                          commissioner and a commission empowered to hear complaints and issue
                          reports mirrors the strategy used by the United Nations human rights and
                          refugee organizations.) Although this proposal contained a draft
                          convention, as well as General Principles on Environmental Protection
                          and Sustainable Development, the international community has not
                          adopted it. Most likely this is because the document had no binding force
                          and was not issued by an official United Nations organization.

                          The Hague Declaration. The Declaration of the Hague on the environment,
                          issued in 1989 by an international conference of government policy
                          makers, scientists, and environmentalists focused on climate change,
                          called for a “new institutional authority” to combat global warming. The
                          authority would be created within the United Nations system and would
                          have decision-making and enforcement powers. The declaration was not
                          specific on the form that the authority should take, nor did it propose any
                          type of design. Citing the Hague declaration as a step in the right direction,
                          one legal expert has suggested that the 1974 Convention on the Protection
                          of the Environment, which is a general treaty that addresses the
                          environment as a whole, could be used as a model. This 1974 convention
                          created a right of action against a nation for anyone who is affected by
                          environmentally harmful activities in that nation and requires each party
                          to the agreement to establish a special authority to safeguard general
                          environmental interests. The expert believes that the convention could be
                          used as a model for future conventions that address environmental issues
                          because it would allow nations to protest any activity that has been proven

                          20
                            “Enforcement of International Environmental Treaties,” p. 274.



                          Page 25                                            GAO/RCED-99-148 International Environment
    Chapter 4
    International Environmental Agreements
    Are Rarely Enforced




    harmful to the common environment. This would eliminate diplomatic,
    political, and economic pressures against the protesting nations.21

    The Soviet Initiative. A third recommendation, made by the former Soviet
    Union,22 would create a cadre of what one author called “green
    troops”—modeled after the peacekeeping and peacemaking efforts of the
    United Nations. The proposal would also create and staff centers
    responsible for collecting and analyzing environmental data, deploying the
    troops to the scenes of environmental disasters, conducting inspections,
    verifying treaty compliance through on-site inspections, and assessing
    damage.

    Academic Proposals. Academic thinking on how to best incorporate
    enforcement mechanisms into treaties falls into three schools of thought.

•   One group stresses that there is a need for a central authority to
    coordinate efforts and maintain a steady flow of information on the global
    environment. The central authority would also set and enforce rules.23
•   A second group stresses a process of interaction and cooperation among
    the parties involved. They believe that most treaty violations are not
    premeditated or deliberate but are instead caused by the ambiguity and
    indeterminacy of the treaty language, the domestic limitations of the
    parties’ abilities to carry out their responsibilities, and the time constraints
    imposed by treaties on the participants. Therefore, the best way to ensure
    compliance is not the threat of punishment but a process of interaction
    and cooperation among the parties involved, including improved dispute
    resolution, technical and financial assistance, and oversight and public
    participation.24
•   A third group notes that inducing nations to participate in collective
    deliberation and exposing them to new information could produce a shift
    in their domestic environmental policies. This group expects that the
    nations will change their environmental activities as they are exposed to
    the potential benefits of international environmental cooperation. They
    believe the nature of the commitments should be as unthreatening as

    21
      “Enforcement of International Environmental Treaties,” p. 279.
    22
     The Soviet proposal was cited in Thomas M. Franck, “Soviet Initiatives: U.S. Responses—New
    Opportunities for Reviving the United Nations Systems,” American Journal of International Law, Vol.
    83 (1989), p. 531.
    23
     “Does the Emperor Have No Clothes?,” p. 544 and “Enforcement of International Environmental
    Treaties,” pp. 279-80.
    24
     George W. Downs, “Enforcement and the Evolution of Cooperation; A Symposium on
    Implementation, Compliance, and Effectiveness,” Michigan Journal of International Law, Vol. 19
    (Winter 1998), pp. 328-35.



    Page 26                                            GAO/RCED-99-148 International Environment
Chapter 4
International Environmental Agreements
Are Rarely Enforced




possible and consist of few, if any, specific performance targets or
timetables, emphasizing dispute resolution and negotiated compliance
management techniques to the exclusion of more coercive enforcement
mechanisms.25




25
  “Enforcement and the Evolution of Cooperation,” pp. 336-43.



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(160475)   Page 32                              GAO/RCED-99-148 International Environment
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