patrick dougherty, na hale 'o waiawi. the contemporary art

PATRICK DOUGHERTY, Na Hale 'o waiawi. The Contemporary Art Museum, Honolulu, Hawaii, 2003.

60 ISSUES IN SCIENCE AND TECHNOLOGY

LAWRENCE SUSSKIND

Strengthening theGlobal Envi ron mentaTreaty System

Despite the huge media attention environmentaltreaties receive, the system of making and implementingthem is barely functioning.

The global environmental treaty-makingsystem—the set of mechanisms by whichcountries fashion agreements to promotemore sustainable development—is notworking very well. More than 400 mul-tilateral agreements such as the KyotoProtocol on climate change now exist,

and new treaties are continually being added that addressa wide range of problems, including the loss of endangeredspecies and habitats, increasing levels of ocean dumping, theunregulated transshipment of hazardous substances, anddesertification. Yet there is no evidence to suggest that theproblems these treaties are intended to address are being cor-rected. There is a variety of reasons why the "system" isn'tworking and a number of ways it could be strengthened.

The system is actually quite undeveloped. There are fewif any rules regarding the number of countries that must signa treaty before it can come into force. The penalties for fail-ing to meet treaty obligations are rarely made explicit, and

the extent to which countries that have not signed a treatyare legally bound by the standards that the rest of the worldhas adopted is still a matter of speculation. Enforcement ofglobal environmental treaties is practically nonexistent. Theadministrators of treaty regimes are, as Abram and Anto-nia Chayes point out in their book The New Sovereignty, forcedto seek "compliance without enforcement." In a strange turnof events, elected political leaders can get credit domesti-cally for signing a global agreement even if they have no inten-tion of seeking ratification of the agreement from their Par-liament or Congress. Environmental treaty regimes areadministered by a series of ad hoc secretariats, not by a sin-gle United Nations (UN) agency and depend entirely on fund-ing donated by a handful of the countries they are sup-posed to be regulating. Finally, scientific input into thewriting of each treaty and the monitoring of implementa-tion efforts are entirely catch-as-catch-can.

There are a number of ways in which the treaty-makingsystem could be improved. Four in particular stand out:

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62 ISSUES IN SCIENCE ANDTECHNOLOGY

ENVIRONMENTAL TREATIES

increasing the role of "unofficials" in treaty drafting andimplementation, setting more explicit adaptive manage-ment targets, offering financial incentives for treaty com-pliance, and organizing regional science advisory panels toenhance the level of scientific advice available to all nations.

Key environmental treatiesTreaties or multilateral environmental agreements (MEAs)are the products of negotiations among groups of coun-tries. One of the most successful is the Vienna Conventionfor the Protection of the Ozone Layer (and the follow-up Mon-treal Protocol). It reversed the rate at which stratosphericozone-depleting chlorofluorocarbons (CFCs) are emitted intothe atmosphere by banning them. On the other hand, theBiodiversity Convention and the Climate Change Conven-tion, which were signed by more than 150 countries at the1992 Earth Summit, have not even begun to reverse thegrowing loss of biodiversity or the threat of global warm-ing. Other hoped-for treaties, including some such as theGlobal Forest Protection Treaty that have been under dis-cussion for decades, have not yet emerged.

For many treaties, the problem is that the goals set areso modest that even if implemented, they would not reversethe trend that triggered tbe problem-solving effort. TheConvention on Wetlands of International Importance, theConvention on International Trade in Endangered Species,and the Convention on Persistent Organic Pollutants seekto slow the rate at which a resource is lost or pollutionoccurs, but under the best of circumstances, they won't besufficient to reverse or mitigate the adverse effects that havealready occurred.

Other MEAs have simply not been ratified by key coun-tries. The United States, for instance, has not ratified the KyotoProtocol, the United Nations Convention of the Law of theSea, or the Basel Convention on the Control of Transbound-ary Movements of Hazardous Wastes. Even when countrieshave signed and ratified treaties, they have been siow tobring their national legislation into conformance with theirtreaty obligations.

In quite a few instances, the responsibilities of signatorycountries for meeting timetables and targets are vague. Ingeneral, we have relied on what might be called a two-stepconvention-protocol process. First, usually after a decade ormore of talks among a limited number of countries, a con-vention is adopted indicating that a problem exists andexhorting countries to do something about it. That's aboutall the Climate Change Convention accomplished. Once aconvention is ratified, the signatories agree to meet everyyear or so to talk about ways of adding protocols that spell

Patrick DoughertyCombining carpentry skills and a love of nature, NorthCarolina artist Patrick Dougherty incorporates primitivebuilding techniques and experiments with tree saplingsas construction material.

His first work MapleBodyWrap was included in the 1982North Carolina Biennial Artists' Exhibition sponsored by theNorth Carolina Museum of Art. In the following year, hehad his first one person show, Waiting It Out In Maple, at theSoutheastern Center for Contemporary Art in Winston-Saiem, North Carolina. His work quickly evolved from singlepieces on conventional pedestals to monumental-scaleenvironments, which required saplings by the truckloads.During the past two decades, he has built over 150 worksthroughout the United States, Europe, and Asia.

Additional information about Patrick Dougherty's work,upcoming exhibitions, and catalogues can be found on hiswebsite (www.stfckwork.net).

opposite: all by PATRICK DOUGHERTY, (clockwise from top)

Childhood Dreams, Desert Botanical Garden, Phoenix, Arizona, 2007,

Jug or Naught, Fredric Meijer Gardens, Grand Rapids, Michigan, 1999.

Owache, Northern Illinois University, Dekalb, Illinois, 1999.

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out more specific timetables and targets. Thus, the MontrealProtocol was a 1990 amendment to the 1987 Vienna Con-vention. The protocol called for a total phase-out of a listof CFCs by specific dates. It also scheduled interim reduc-̂tions for each chemical and called on the signatory coun-tries to reassess relevant control measures every four years.During the time that the protocol was under discussion, therewas considerable disagreement regarding the scope of theproblem, the level of production cuts required, and the pro-vision of aid to developing nations to enable compliance withphase-out targets. The discovery of a hole in the ozone layer(over the South Pole), along with the availability of less-polluting aerosol alternatives, settled the scientific debate andprompted relatively quick action.

In general, financial resources have not been adequate toenable or ensure treaty compliance. There are no generalfunds available at the global level to help cover the cost oftreaty implementation. On occasion, some of the most devel-oped nations, with the help of multilateral institutions suchas the World Bank, volunteer to contribute small amountsof money through a foundation-like entity called the GlobalEnvironmental Fund (GEF) to assist developing nations inmeeting their treaty obligations. Often, though, the politicsof allocating these funds mean that money must be set asidefor each region despite overwhelming needs in one loca-tion or the scientific merit of grant proposals from particu-lar countries.

Although most treaties require each signatory nation tosubmit regular progress reports, the treaty secretariats rarely.

if ever, have sufficient technical staff to review the accuracyof the information submitted or assist countries that needtechnical support. The progress reports submitted by somecountries often contain information that is questionable.

Some nations don't take their treaty obligations seriously.They sign and even ratify treaties, but they don't adoptnational standards consistent with MEA requirements. Insome instances, although they adopt appropriate legisla-tion, they don't or can't enforce the standards.

Let's look more closely at the five key reasons why globalenvironmental treaty making has not produced more impres-sive results.

The system for creating and enforcing ME As is still rel-atively undeveloped. The need to balance science and pol-itics has not been elaborated. At the outset, when countriesmeet to talk about the possibility of taking collective action,they are often quite skeptical or suspicious of the scientificclaims offered by others regarding the scope of the problem.Even if credible scientists or scientific agencies have pub-lished relevant research, the political and economic impli-cations of having to make reforms of various kinds leadsome countries, particularly the poorer nations, to questionthe scientific basis for action. Typically, there are no resultsfrom a global research program in hand when countriesare first asked to adopt a convention. It may seem strangethat dozens of countries would pass the equivalent of aglobal law saying that there is a serious problem requiringglobal attention before they have the scientific research toback them up, but it is only after a convention is enacted that

64 ISSUES IN SCIENCE ANDTECHNOLOGY


there is a chance of putting together sufficient funding toundertake a worldwide inquiry. What this means, though,is that the scientific basis for taking action is often scantyat the time countries are asked to act.

Global environmental agreements will always reflectpohtical as well as scientific considerations. This meansthat decisionmaking is always politicized: Some countriesare bound to resent the claims of others (and of nongovern-mental entities) that they see as threats to their sovereignty.In general, throughout the treaty-making process, politicsdominates scientific considerations. We often see "instructedscience" masquerading as detached inquiry when experts fromone or more countries are forced to take stands that arecontrary to their best scientitlc judgments. If they don'tcomply, they will be replaced. Thus, there is little or no bal-ance between science and politics in treaty making andtreaty enforcement.

No single institution has responsibility for building insti-tutional treaty-making capacity. There is no central agency,no UN Environmental Treaty-making and Enforcementbody, to oversee multilateral treaties dealing with naturalresources or sustainable development. The UN DevelopmentProgramme, the World Bank, the UN Environment Program,and a long list of global agencies have all weighed in at dif-ferent times, but there is very little coordination among themany independent treaty secretariats.

Ongoing North-South tensions get in the way. Efforts toformulate and implement new global environmental treatieshave been slowed by continuing tension between devel-oped and developing countries. The G-77 nations haverepeatedly taken the stand that the developed countriesshould first do all they can to address various global envi-ronmentíü problems (that they caused) before asking the devel-oping nations to put off development or take costly steps toreduce emissions. The developed world, after all, has beengrowing in an unsustainable fashion for many decades andis disproportionately to blame for current levels of pollutionand unsustainable levels of resource use. In addition, the nationsof the South often assert that it is unreasonable for theNorth to expect the South to take action when the Northis unvkilling to share new technologies or help to fund South-ern capacity-building efforts.

The North asserts that most of the future populationgrowth, increasing demand for energy, and pressure forgreater food production will come from the South. Thus, theSouth ought to be held to the same environmental standardsas the North, and the North refuses to sign until the Southagrees to participate. The South pleads poverty and demandsthat the North show good faith by taking action first, shar-

Above: PATRICK DOUGHERTY, Toad Hall, Santa Barbara Botanic GardeaSanta Barbara, California, 2005. ;

Opposite; PATRICK DOUGHERTY, Close Ties. Brahan Estate, Dingwail,Scottish Highlands, 2006.

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f ' .• - • " . ' - .

ing technology and providing funds for capacity-building.The two sides continue to wrangle about timetables andtargets. The South seeks lower targets and longer timeframes to meet them.

Wfe have lost sight of the importance of "common but dif-ferentiated" responsibilities. When the Climate ChangeConvention was signed, it embraced the principle of com-mon but differentiated responsibilities; that is, it acknowl-edged that global environmental treaties can succeed onlyif all countries agree to accept a common goal (such asreducing greenhouse gas emissions to sustainable levels)while recognizing that developing countries might needmore time and extra assistance (and perhaps be assigned lessambitious goals) than developed countries. The MontrealProtocol gave India and China an extra decade to reach thesame targets as most of the developed world.

Some developing nations, such as Brazil, India, andChina, the argument goes, should be capable of meeting moreambitious targets than the poorest of the developing nations.In addition, even among highly developed countries, dis-tinctions based on past levels of effort, differences that area function of resource endowments, and perhaps varia-tions in capabilities already in place might justify variationsin assigned goals.

Unfortunately, the United States has backtracked on itscommitment to the principle of common but differentiatedresponsibilities. It is using the unwillingness of the larger,industrializing countries of the G-77 to accept the sametargets and timetables as the United States as a reason notto ratify the Kyoto Protocol. Differing timetables and tar-gets for various categories of countries make a lot of sense,but unless the principle is accepted globally, it will be dif-ficult to convince most countries to endorse the treatiesthey have not yet ratified.

There are few incentives for treaty compliance and fewpetudtiesfor noncompliance. Most global environmental treatiesemphasi2e sharing the pain rather than sharing the gain. Coun-tries are eager to sign multilateral trade agreements becausethey want the benefits that being part of a global trading sys-tem offers. They are much less inclined to sign environ-mental treaties, because the presumed benefits won't berealized for some time (if they come at all) in the form ofa cleaner, safer, more sustainable environment. The costs,however, must be paid now. Politicians with limited electoraltime frames are willing to sign such treaties only if they arepushed to do so.

One way to change this calculus is to reward countriesin the short term for joining environmental treaty regimes.If elected national leaders could demonstrate that signing



a MEA entitled their country to immediate economic ben-efits, they would be more inclined to do so. Unfortunately,few if any revenue streams are linked to environmentaltreaty regimes, so it is difficult to see how economic bene-fits might materialize in the short term to encourage mem-bership and compliance.

In addition, there are no financial penalties for noncom-piiance with global environmental regimes. It is hard enoughto get reluctant countries to voluntarily embrace timeta-bles and targets that impose costs but offer no short-termbenefits; threatening them with financial penalties for non-compliance would mean that even fewer would join. Ofcourse, if there are no penalties, many countries might bemore inclined to sign, but they certainly would have noincentive to comply. Although shaming is one means ofpressuring countries to live up to their obligations, it is farfrom foolproof.

We have allowed the absence of scientific certainty to fore-stall useful action. We can't afford to wait for scientific cer-tainty before we take global action. For many countries andmany ecosystems, it will be too late. If we think there is achance that critical resources and habitats are about to beeliminated, precautionary steps would seem to be in order.Certainly, with regard to fisheries, we know that waiting toolong will cause a fish stock to crash. Once it falls below asustainable level, it will not recover on its own. Because thesystems that global environmental treaties are addressing areso complex, the notion that we should take no action untilwe are certain about the causes of each problem and the effi-cacy of proposed solutions means that we will always be toolate.

Improving the treaty-making systemEven in the face of all the difficulties described above, thereare four major ways in which the treaty-making system canbe improved.

First, we should involve "unofficials" more directly intreaty drafting and enforcement. Treaties are official agree-ments among nations. As such, only elected leaders andtheir appointed agency staff are invited to the negotiationtable to formulate the terms of each MEA. But nationalleaders often have short-term political agendas that encour-age them to look the other away when global environmen-tal treaties are being discussed. Within each country, civilsociety groups, including environmental and scientific non-governmental organizations (NGOs), universities, and tradeassociations, are more likely to take the long view and acceptthe responsibilities of global stewardship. We need to alterour understanding of the global treaty-making system to encour-

Above: PATRICK DOUGHERTY, Spinoffs. Decordova Museunn, Lincoln,Massachusetts, 1990,

Opposite: PATRICK DOUGHERTY

Crossing Over, American Craft Museum, New York, New York, 1996,

Just for Looks (detail), Max Azria Melrose Avenue Boutique, Los Angeles,California, 2006.

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age civil society representatives to sit at the table at all times.Bringing civil society to the negotiating table would, in fact,

merely be the next step in an evolving trend. Nongovernmen-tal actors are often included in official national delegations.Although only countries will continue to be signatories,unoftlcials could bring additional scientific understandingand long term perspective to almost all treaty discussions.

The UN, through its Department of Economic and SocialAffairs (ECOSOC), maintains a list of thousands of quali-fied NGOs. If an organization such as ECOSOC sets and main-tains standards for groups seeking to participate in globalenvironmental negotiations, the concerns of some leadersthat their in-country opponents will use treaty negotiationsto embarrass them would be alleviated. ECOSOC couldalso invite clusters of nongovernmental actors to caucus tochoose their own ad hoc representatives to each treaty nego-tiation in order to keep the number of unofficials to a man-ageable scale.

Finally, it would probably make sense to write into all

new treaties monitoring and enforcement roles for civilsociety, which already exist in some treaty regimes. Thiswould reheve much of the financial and administrativeburden on secretariats.

A second way to improve the treaty system would be toset longer-term timetables and adaptive management tar-gets. A huge amount of time is spent debating timetables andtargets once a convention is adopted. But it is foolish tothink that negotiators can anticipate what almost 200 coun-tries will need to accomplish decades in the future. Rather,it makes more sense to set long-term performance goals(rather than intermediate standards) in each treaty andthen specify contingent adaptive management obligationsfor nations that sign. For example, we can say, as the Inter-governmental Panel on Climate Change has, that the globalobjective is to achieve carbon dioxide emissions of 450 partsper million by 2040 because that is what it will take (as faras we can tell at present) to avoid the worst effects of globalwarming. Then, taking an adaptive management approach.

PATRICK DOUGHERTY, Callofthe Wild. Museum of Glass, Tacoma, Washington, 2002.



we can work back from that scientifically generated goal andset reduction targets for each decade that will make it pos-sible for us to reach the 2040 goal. For each decade, wecould then suggest a range of actions each country mighttake to meet its fair share of the overall reduction target. Then,we could hold countries accountable during mid-decadereviews for adjusting the mix of steps they are taking toensure that their 10-year obligations are met. The 2040 per-formance goal that would drive such a treaty could beadjusted each decade as scientific understanding of the sys-tems involved increases.

For an adaptive management approach to work, we needto invest globally in advanced monitoring technology andassign long-term monitoring responsibility as well as lead-ership of global research efforts to some entity, perhaps theUN, with sufficient funding to build the staff capabilityrequired. What we can't do is allow each country to dowhatever it wants at whatever pace it prefers.

Third, we should offer financial incentives for ratifica-tion and compliance by linking environmental treaties withtrade and development assistance. One way to create incen-tives for countries, particularly developing ones, to signglobal environmental treaties and take their fair share ofobligations seriously is to link a variety of trade benefits andvarious forms of development assistance to membership ingood standing in multilateral environmental treaty regimes.For example, the World Bank or the other multilateral finan-cial institutions might offer favorable lending rates or evenloan forgiveness to countries that sign, ratify, and imple-ment key environmental treaties. Because the developmentprojects these agencies fund sometimes accelerate certainenvironmental difficulties, this would make it easier for thebanks to justify their investments in environmental terms. Itmight even make sense to require that countries sign, ratify,and implement key global environmental agreements beforethey are given international assistance for large infrastruc-ture projects.

Because energy production from fossil fuels is at theheart of many environmental problems, it might make senseto encourage developed countries to add to their current taxesa tiny additional tax on all electricity produced from fossilfuels. If developed countries are going to adopt carbon taxesin the next few years as a means of achieving their Kyotogoals, why not divert a small amount of this money into aglobal fund to support sustainable energy projects? Thiskitty could be used to encourage developing countries to signand implement numerous MEAs. The Hinds would go to coun-tries meeting their global environmental responsibilities.

Some of this money could also be allocated through theGEF to cover general capacity-building efforts in the devel-oping world. However it is done, we need some way of gen-erating a steady flow of funds to encourage developingcountries to sign multilateral environmental treaties.

Finally, another incentive to sign MEAs might involve grant-ing favorable technology-sharing agreements to countriesimplementing the most important global environmentalagreements. Countries in the North would still reap a finan-cial return on the sale of "green" technologies, but MEA-com-plying countries could be given a break on the price. Thiswould be applied whether the technology was being sold orlicensed by a country or a company and whether the licenseewas a country or a company.

A fourth way to improve the treaty system would be to cre-ate standing regional science advisory bodies for clusters ofrelated treaties rather than organize separate committees forevery treaty regime. Developing countries are sometimeshard-pressed to fmd qualified scientists to represent them atall these meetings, and the fragmentation of scientific effortamong separate treaty regimes is counterproductive.

A great deal of political acrimony surrounds the selec-tion of science advisory committee members. Trying to bal-ance membership between North and South and amongregions in each treaty regime rarely leads to panels that arethe best-equipped to provide ongoing technical advice or over-see global research efforts required to enhance treaty imple-mentation. A smaller number of larger regional and sectoralcommittees would help.

Today, there is no official body with responsibility forimproving the global environmental treaty-making system.Science associations around the world should take the leadin drawing attention to the ways in which the current sys-tem is failing. They should also suggest possible improvements.It is unlikely that individual governments will advocate forsystemic changes while UN organizations are busy contend-ing with each other as they try to hold on to their bureau-cratic turf and cope with funding shortages. Thus, the globalscientific community will be pivotal in effecting change.

Lawrence Susskind ([email protected]} is the Ford Professorof Urban and Environmental Planning al the MassachusettsInstitute of Technology and vice chair of the Program onNegotiation at Harvard Law School. This article is based ona presentation given at the annual meeting of the AmericanAssociation for the Advancement of Science in Boston, Mas-sachusetts, on February 18, 2008.

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patrick dougherty, na hale 'o waiawi. the contemporary art

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