29 November 2019

The Impact of Environmental Compliance Committees on National Legal Orders

A recent PhD thesis assesses the impact that 18 compliance institutions operating under multilateral environmental treaties have had on national legal orders. The impact varies greatly, ranging from very low (almost none) to high (almost 85%). As Dr Gor Samvel explains in this interview, both the success and failure of these institutions are closely tied to the general compliance context of the respective treaties.

How did you come to choose your research topic?

The choice of my topic was determined by two factors: academic interests and the professional path. 

I have always been curious about the questions of how, and why, (inter)national law is delivered, transformed into a sociopsychological phenomenon, and then accepted, and obeyed, as the norm. When is that moment when we decide to comply with law and what factors influence that decision? Ultimately, the question becomes: “To what degree does the established legal orders, in fact, influence the realities we all live in?”

Along my professional path, I have become associated with compliance committees operating under multilateral environmental treaties, whose function is to assist states to improve their compliance with their treaty obligations. They are advisory and non-judicial institutions and, because of this, states are not formally bound to comply with their recommendations. Thus, the questions I have identified above become even more pertinent when considered in relation to these institutions and their output. I felt I was witnessing a legal process whose scale and empirical richness would satisfy my academic ambitions, and seized the opportunity. I owe a great debt of gratitude to the Graduate Institute for having been a haven for this research project. 

How did you formulate your research question and what was your methodological approach?

The specific question I asked was: What has been the impact of 18 compliance committees operating under multilateral environmental treaties on national legal orders? Often with only the limited instruments provided in environmental treaties to promote compliance, these committees, over a period of 40 years, have looked into 321 individual cases of non-compliance and have issued 76 reviews of national reporting by hundreds of states. To answer my research question, I systematised their practice over that period and assessed how successful these committees have been in convincing the states to comply with their recommendations, so that eventually compliance with their treaty obligations was improved.

Two productive hours on the train from Hamburg to Ghent, and my research question was refined to my satisfaction. However, the same speed in reaching a way forward eluded me when dealing with my methodology and related coding scheme. It took me almost a year to develop a tailored impact evaluation methodology. To assess the impact of individual cases on compliance, I scored the progress of the parties from 0 to 3 with respect to each recommendation in the 321 individual cases. Through the application of a comparator, I inferred the overall impact score of each committee in percentage. With respect to the 76 reports, only a qualitative method was applied, determining the influence of the committees through the improvement of the parties’ compliance under each non-compliance theme discussed by them. 

What findings did this evaluation yield?

One of the issues I had to face was that of the 18 committees researched, only 12 employed practices that allowed for a meaningful impact assessment. These 12 committees are of three categories:

Overall, out of the 12 committees, only 5 have had any discernible influence on the state practice. The work of these committees has ensured, amongst others, (1) more distributional and procedural environmental justice, (2) the essential decrease in the consumption of CFCs by developing countries, (3) improvement of reporting obligations, (4) improved legal grounds for transboundary environmental impact assessments, (5) more reasonable use of marine living resources in Antarctic region, (6) better reporting on transboundary movement of hazardous waste, (7) control of the illegal trade in endangered species, and (8) establishment of measures for the prevention of industrial accidents.

The empirical findings largely upheld the fairness school of Thomas Franck, suggesting that the compliance of states with international environmental law is directly linked to the emergence of shared beliefs about the fairness of any treaties concluded. Conclusion and ratification of both regional and global treaties did not always give rise to a genuine agreement on shared objectives across the continents (e.g. the Kyoto Protocol, the Basel Convention, and the Mediterranean/Barcelona Convention). This was already an observable phenomenon in the early stages of negotiations. In fact, some of the environmental regimes have, to all intents and purposes, been “stillborn”. Such observations cast a significant doubt as to whether there has ever successfully operated a universally agreed system of international rules for global environmental governance.

Given your research findings, what could policy designers and makers do to increase environmental compliance?

It is unquestionably the case that there have been genuine attempts by a whole range of states, groups and organisations at taking realistic action to address issues of environmental concern. Forty years of experience of global environmental regimes informs us that the mere establishment of formal rules, institutions, processes and actors is a necessary condition for the emergence of a valid value-based consensus. However, my findings show that this does not ensure the emergence of consensus as such. Therefore, it is important, upon the conclusion of a binding or non-binding negotiation, to have the courage to reflect on how the process enabled the international community and, equally importantly, how that system may continuously rethink itself along its journey.

My research may draw the attention of international policymakers to the necessity of considering any new regulatory regime, including its compliance mechanisms, in light of the impact of the previous once, and to take note of the potentially different expectations of individual states and their responses to international legal rules. It is only through such a conscious approach that the limitations to the effectiveness of previous regimes may be recognised and possibly mitigated. 

How can your research findings serve society?

It makes sense for international society to be committed to the potential for, but also aware of the limitations of, any regulatory regime that is agreed. For me, sometimes it was disquieting, but also fascinating, to observe empirically how international legal regimes are generally capable only of maintaining the status quo and rarely of becoming a driver of social progress. Moreover, in a number of instances, law lags well behind the environmental concerns of the international public, let alone being a reflection of innovative responses to them.

What are you doing now?

I am working on two articles that will come out soon and, on a book, out of my thesis, besides preparing to start teaching and a new research project. 

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Gor Samvel defended his PhD thesis in International Law in September 2019. Professor Anne Saab presided the committee, which included Joost Pauwelyn and Liliana Andonova, thesis codirectors, and Professor Christina Voigt from the University of Oslo, Norway.

Full citation of the PhD thesis:
Samvel, Gor. “The Impact of Compliance Committees under Multilateral Environmental Agreements on National Legal Orders.” PhD thesis, Graduate Institute of International and Development Studies, Geneva, 2019.

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Edited by Nathalie Tanner, Research Office.
Banner image: excerpt from a picture by theromb/