Lecture 1: The Scope of International Environmental Law
INTERNATIONAL ENVIRONMENTAL GOVERNANCE - UNEP
Foundations of International Environmental Law
ENCLOSURE OF GLOBAL COMMONS - ENCLOSURE OF GLOBAL COMMONS AND GLOBAL WELFARE
The gradual enclosure of global commons is a fact. The question that must be answered is whether this enclosure is beneficial for the global welfare or whether international policy makers should pursue a different course of action for the development of international law, a course of action more likely to increase global benefits.
Even the use of term “global welfare,” however, could be looked on with distrust. An argument that enclosure instruments, or any instrument for that matter, could have some effects on “global welfare” seems to be premised on an assumption of a world that shares the same interests. As often repeated in this study the world is divided between developed and developing countries and even between developing and least-developed countries. Even within the same group of countries, developed or developing, states could very well conceive that their interests are not aligned with those of their counterparts. Many could argue, justifiably then, that global welfare is a fiction that attempts to generate unity in a world divided between the haves and the have-nots or, even worse, according to nationally conceived interests.
The notion of global welfare is examined here from the foundational perspectives of international environmental law – namely, minimum order, equity, and effectiveness.
In other words, the question we attempt to answer is whether the enclosure of global commons can generally be perceived as an equitable, effective enterprise for all of those that participate in that enterprise.
In terms of effectiveness, the instruments are judged on whether they have been able to bring a minimum order (some sort of collaboration among states) or a maximum order (the effective management of an environmental problem that could, at least, partially generate a resolution of such a problem).
From the perspective of effectiveness as a minimum order, one could easily conclude that most environmental regimes have been able to bring order in what is often conceived to be a chaotic international scene.
From the respective of the effective resolution of environmental problems, international environmental instruments have had a mixed record of achievement. This is because some of the instruments have not been able to address the distributional issues that are at stake. Dissension and disagreement, therefore, are perpetuated in international fora as countries engage in forum shopping to achieve the resolution that would best serve their interests.
International environmental regimes may become ineffective also because countries have been reluctant to invest the resources that would allow for regime monitoring, enforcement, and for the minimum infrastructure for regime development.
As environmental issues compete with other issues (such as various conflicts and epidemics) considered of relatively higher importance in international agendas they rarely acquire the priority they could deserve.
International environmental regimes, thus, may lack in effectiveness either because they have not addressed distributional issues in a satisfactory fashion or because they have not acquired the importance in international arenas that would attract the attention and resources of states.
The enclosure movement in fisheries has produced a number of regional agreements that attempt to control the fisheries of an area by giving priority to coastal states and distant-water fishing states with historical rights in fisheries. These agreements are usually perceived as equitable among the states that agree to share a resource. For those who remain outside, however, these agreements are perceived as inequitable. The issue is, for instance, why historical rights should be given preference over newer claims. Sometimes also skirmishes develop among states that have entered the agreement – between states more attuned to preserve the resource (usually coastal states) and states more interested in the quick economic profit (usually distant water fishing states). The distributional issues in fisheries management are bound to be the most explosive issues in the future management of the resource. The success and, thus, the effectiveness of the regime would depend on its ability to generate perceptions of equitable distribution among the insiders and to compensate outsiders for nonparticipating. In the absence of means of compensation, effective and, thus, legitimate enforcement means must be put in place.
The distributive character of fisheries regime is particularly relevant in some regional fora. The Pacific fisheries resources regime has been evolving into a regime in which small island states have started to assert control over their fisheries resources and are using the regime as a mechanism to spur collective action that would generate rents from the resource. In the past, such rents were not forthcoming as better-equipped distant water fishing states tended to dominate the management of the resource.
The cost-effectiveness of regional enclosures has not been examined, specifically, as the effectiveness of the regimes is still under question. The international system is by definition an incentive-based system and, thus, a cost-effective system because it avoids in principle third-party enforcement. It seems unlikely that the fisheries regime, as it develops through exclusionary enclosures, however, would avoid traditional enforcement. It is highly likely that the regime will be challenged by states that remain outside the regime. Because the compensation of losing states may not be high enough to be considered satisfactory by them, only the credible threat of enforcement would prevent unregulated fishing in the high seas.
A final question is whether regional fisheries agreements are more effective than the prior regime of freedom of fishing in the high seas. The anarchical situation in the high seas combined with threats to the sustainability of fisheries resources presented the enclosure of fisheries – in terms of regulation and assertion of jurisdictional control by coastal states – as the only reasonable outlet. It seems that, in the case of fisheries, the choice is between two evils: open access and ownership by exclusion.
As open access is becoming untenable, ownership by exclusion seems to be the future evolving norm.
Germplasm and Related Knowledge
In the plant genetic resources regime, two enclosure tendencies are in place. The first one concerns the physical enclosure of resources within the territory of a state. The other has to do with the enclosure of intellectual commons. The physical enclosure of plant genetic resources has been pursued more as the restoration of distributional equity and the tit-for-tat response to intellectual property rights over “worked genetic resources” expressed as plant breeders’ rights or patent rights on biotechnology inventions. Plant breeders’ rights have been protected for years and new laws have been enacted for the patented protection of biotechnology inventions.
As a response to the “enclosure of intellectual commons,” countries rich in biodiversity, but not advanced in biotechnology, started to view the enclosure of their physical resources as fair and the perfect retaliation against the assertion of developed countries concerning intellectual property rights over “worked resources.” It was expected that the enclosure of “raw” biodiversity resources, and the concomitant assessment of fees for accessing those resources, would bring countries economic advantages. It was further expected that new norms would emerge for sharing in the profits of intellectual property rights over resources. Although new norms have emerged that provide restricted conditions of access to unprocessed biodiversity resources, the advantages envisaged by developing counties in enclosing their germplasm resources have yet to materialize, at least, to the extent that developing countries had contemplated.
Overall, the regime for the enclosure of “raw germplasm resources” has been characterized as ineffective. Too many barriers have been placed on the access to “raw genetic resources” so as to inhibit research and innovation without making developing countries wealthy. The control of access to germplasm resources inspired by corrective justice concerns has been unable to address in an effective fashion the distributional issues of the present, namely, how resources that are found in some biodiversity rich areas of the world could be accessed by those who want to generate profitable knowledge by providing, at the same time, some measurable profitable outcomes for the developing world.
Developing countries believe that they are entitled to some compensation, given that it is knowledge extracted from their resources that generates wealth for international corporations. Without these “raw resources,” often propagated and preserved by local populations, many of the “inventions” of multinational companies might have never happened.
Multinational companies, by contrast, do not seem willing to provide any substantial compensation for the acquisition of resources. This is because they perceive that the value they add to the resource, after many years of experimentation, is what generates profits and not the resource itself. Some bio prospecting agreements between developing countries and companies of the developed world attempt to address the concerns of developing states without, at the same time, ceding too much ground in terms of monetary benefits to such states.
Demands to open the intellectual property rights regime, at least with regard to biotechnology, are unlikely to shake the foundations of such a regime. Biotechnology is a new technology and countries (and companies) are likely to continue to be zealous of biotechnology innovations generated within their borders. It is unlikely that biotechnology would become open-access technology any time soon, as many developing countries would prefer.
Although demands to open the intellectual property rights regime are unlikely to produce the demise of the regime, they could affect the shaping of such a regime. Challenges to biotechnology patents based on the existence of prior knowledge may discourage the filing of superficial patents. Forcing the disclosure of knowledge obtained from indigenous communities, and on which a biotechnology invention may be based, could assist in some of the benefits from intellectual property trickling down to those communities.
Demands to open intellectual property, so that inventions become common property immediately after they are recognized, are unlikely to find soon a fertile ground. But demands to open the intellectual property rights regime are likely to make such a regime more responsive to claims of equity, especially with regard to the appropriation of prior knowledge, when such knowledge should have remained in the public domain as open-access knowledge. The intellectual property rights regime over “worked resources” that originate in developing countries is likely to continue to be conceived as inequitable from the perspective of countries within the territories of which such a resource is located. This is likely to be so even if the “worked resource” involves a clear “inventive step” in the isolation of valuable material within the resource.
Demands to open the intellectual property rights regime are not always based on equity concerns. They have to do with the effectiveness of the regime as well. For instance, in an era when the distinction between discoveries and inventions is becoming blurred, it has been charged that intellectual property rights on knowledge are bound to undermine rather than to spur innovation.
The fundamental premise of intellectual property rights regime is that it encourages innovation because it allows scientists to obtain monetary and reputational benefits from the fruits of their endeavors. Demands to open the intellectual property rights regime challenge this fundamental assumption. Claims are made, for instance, that the sharing of more knowledge and the appropriation of less knowledge would result in more innovation. This is because so many of the new intellectual property rights claims are made not on “inventions,” as inventions were understood in past, that is some sort of device ready for application. Intellectual property rights also are made on substances found naturally, provided that a scientist has been able to isolate these substances and identify them in the laboratory. Declaration of property rights over a process to isolate a naturally occurring substance, when other competing processes of isolation have yet to be invented, essentially declares a monopoly over the use of the substance. Legitimate concerns can then be raised whether such an effective monopoly is preferable to a sharing arrangement.
As technology has developed to include more than improvement in mechanical devices, the intellectual property rights regime has had to evolve to encompass the new life technologies. The debate over what should be considered patentable, and what should not, would continue as such technology is further refined and developed. The declaration of property rights over living material is unlikely to cease. Courts and legislators, however, would need to define further the parameters of protection of intellectual property ownership.
Developed countries do not intend to unravel intellectual property rights protection in order to accord biotechnology concessions to the developing world. It is also unlikely that developing countries would balk at the enclosure of their unprocessed germplasm resources. The enclosure of “raw germplasm resources” is not motivated so much by the benefits it would bring to developing countries but, rather, seen as an expression of corrective justice hard fought for and won in international arenas. The enclosure of germplasm resources is not the most effective international regime, but it is likely to continue to reign when more would have been gained for the global welfare if literally anyone interested in germplasm was allowed to collect germplasm and experiment with it to find out potential useful applications. The gene bank system and that of International Agricultural Research Centers (IARC), as it enveloped in the past, was based on the premise of free collection, use, and experimentation. Although that germplasm resources system was far from a perfect system, it had achieved much for the preservation of useful or rare seeds, the development of new cultivars, and the distribution of much needed genetic material to countries in need.
The current system of enclosure of “raw germplasm resources” and intellectual property rights over “worked resources” is a system that is based on the enforcement apparatus of domestic systems and their jurisdictional reach into other systems.
Countries that have enclosed “raw germplasm resources” must ensure that none of their indigenous natural resources cross their national borders without their consent. Countries that have enclosed “worked germplasm resources” must verify that patent rights on biotechnology inventions are respected in the developing world. The costs of third-party enforcement for the enclosure of germplasm resources and the protection of intellectual property rights could be potentially quite high. The costs of enforcement could be quite high because many developing countries do not have effective control over their territories and borders. Thus, potentially many people could infiltrate these countries who may wish to collect plants and seeds for further experimentation. The extensive piracy regarding many products produced in developed countries, especially software and various other technological devices, demonstrates that the enforcement of intellectual property rights in many countries with regard to biotechnology inventions is bound to be challenging.
It was hoped that the TRIPs agreement, as it is situated under the umbrella of an international organization, would be able to bring to the protection of intellectual property rights a new legitimacy in the developing world. Such legitimacy, however, has yet to be attained as the debate over intellectual property on pharmaceutical products has aptly demonstrated.
With regard to freshwater resources that cross national frontiers, states have to come to a common agreement on how to apportion such resources. Equity concerns are paramount in the regime for the protection and allocation of freshwater sources. The 1997 UN conventional explicitly refers to equity. Many regional agreements have claimed that they constitute an attempt to share resources equitably. The meaning of equity within the regional fora where freshwater agreements have been concluded has varied. It is rare that equity means a fifty-fifty allocation of a resource.
Many times, states have decided to share their waters based on their respective needs. Other times, equity has meant negotiation on a bundle of resources. In that case, concessions with regard to a resource in the bundle are accompanied by the acquisition of advantages in another resource. One could clearly decipher, behind the equity discourse, that the needs of hegemonic states have held more weight in some cases. Sometimes, the distribution of resources reaches a Pareto optimal outcome in terms of the achievement of win-win situations. Other times, states that have heightened interests in the use of a resource are willing to provide other states what can be considered adequate compensation with the promise of renegotiation as the needs of states may change.
Because one of the purposes of law is to redress the imbalance between the powerful and the weak by searching for equitable results, the question is what equity has been translated to mean in the regional freshwater agreements. According to a dictionary definition, equity means that the rules of the game are observed: for instance, in the sense of a fair game, the rules of boxing are observed. A correct appreciation of equity in regional freshwater agreements would involve an in-depth understanding of the rules of the game as they are configured and reconfigured in a specific region. Such rules of the game are not included only in formal instruments. They have to do with implicit rules that have been formed, inter alia, by the use of effective power in a region. To assume, for instance, that each state in a region has the same say in the distribution of a resource is to assume a world not motivated by power, a hardly realistic assumption.
Regional agreements for the allocation and protection of freshwaters vary in the degree of effectiveness they have achieved for the development and protection of freshwater resources. Some agreements just serve minimum order purposes as they are basically there to ensure that conflict does not escalate out of control. Other agreements have been more substantive and actually have led to a balance in the development of a resource. Agreements among countries in developed regions have been more effective because these countries do have the financial means to engage in the sound management of a resource. Some agreements in developing regions have been effective in bringing in line the expectations of countries with regard to the future management of a resource.
Whether such agreements have been cost-effective is something that needs further examination. Again, as in the case of regional fisheries agreements, an evaluation of efficiency of regional arrangements would have to examine these arrangements in light of a competing proposition. Such a competing proposition does not seem to exist at this point. The international management of all freshwater resources that would involve the establishment of an international authority to deal with these resources seems to be out of the question for the time being. Given that freshwater resources lie within the jurisdiction of each state, such an international authority would be unlikely to develop. Even if such an international authority were developed, it would have to work through a number of regional cooperative arrangements so that management does not become chaotic. In the absence of a competitive proposition, regional management would be the way of the future. But regional arrangements would benefit from benchmarking studies that would demonstrate best practices and how these practices could be applied to different regions to enhance efficient and effective water management.
Regional freshwater agreements are generally in tune with the self-enforcing apparatus of international law. Regional agreements often establish a commission, the purpose of which is the interpretation of the agreement in terms of the allocation of benefits from water use – but the agreement does not remain static, evolving as time passes. The establishment of an institutional framework, which deals with dispute resolution and the future management of freshwaters at stake, frequently is considered more important than the achievement of water distribution at a specific point in time. Commissions have been granted extensive powers and, when granted such powers, have been able to play the role of final arbitrator in international water disputes. The success of commissions, however, has not been uniform. In some cases, commissions have languished because state parties to an agreement were reluctant to delegate to them power and authority.
Regional water management organized around a commission usually involves the centralization of many water services and water authorities that were previously diffused among different states and regions. Commissions usually are made up of scientists who specialize in water management. These scientists often bring their expertise in water management matters and have been able to use their expertise and hard data to diffuse the political nature of a dispute. Regional commissions equipped with information could become effective organs in the management of water resources in many regions.
Transboundary Air Pollution
The global enclosure of the air has taken effect through a number of regulatory and market-based instruments.
Transboundary air pollution centers around the UN/ECE Convention on Transboundary Air Pollution. The regime involves the cooperation of similarly developed countries that have decided to work together to reduce the transboundary impacts of their discharges. This regime has become increasingly more stringent with regard to the emissions of certain pollutants and now regulates effectively a number of pollutants that are responsible for transboundary air pollution.
This regime has been perceived as effective in reducing emissions. Much needs to be accomplished, however, in terms of certain pollutants, such as Volatile Organic Compounds (VOCs) and Persistent Organic Pollutants (POPs). Typically, less developed countries in the region, are allowed to increase their emissions, whereas major polluters agree to reduce their emission discharges. The distributive effects of transboundary air pollution regime have not been challenged significantly by any of the participating countries.
The cost-effectiveness of the regime has to be examined thoroughly. The question is whether the regime would be less costly or more effective if, instead of command and-control technological requirements, it had made available to its members more of incentive-based instruments. Market-based instruments have been introduced in national fora with substantial gains in efficiency. The duplication of such instruments in international fora, therefore, seems to be desirable. Some market-based mechanisms have been incorporated in the transboundary air regime. But market-based instruments have yet to be developed internationally. There are no international markets for buying and selling emission credits. The complexity of creating such markets, given the regulatory and cultural disparities among states, would probably outweigh the expected efficiency gains at this point. But it should not be excluded in the future. The transboundary air pollution regime is highly regulatory, and participants in the regime need to investigate how to manipulate the regime to take advantage of the self-enforcing nature of international law.
Protection of Ozone Layer
The ozone regime started as a regulatory enclosure of the global commons. But it was soon realized that such an enclosure could not be implemented without the consent of all potential stakeholders. Unlike the enclosure of fisheries, where a number of states can create an exclusionary ownership regime, the enclosure of air was not amenable to exclusionary ownership. Ozone-depleting substances can destroy the ozone layer independent of whether they come from developed or developing countries. The enclosure of global commons of the air had to be inclusive. Such inclusion could be coercive or consensual. The treaties that make up the ozone regime have established a number of incentives, in terms of delayed targets and timetables and in terms of financial compensation, that facilitate compliance by developing states. At the same time, however, sticks in the form of trade sanctions and noncompliance remedies are available.
Theoretically, the ozone regime should be effective because those who have the most to gain from the reduction of ozone-depleting substances are willing to compensate those that are to lose in terms of forfeiting cheap industrialization made possible by ozone-depleting substances. Whether the compensation offered would be considered satisfactory so that countries would be willing, indeed, to forfeit cheap industrialization remains to be seen. The regime, in addition to compensation, provides for trade sanctions for the countries that refuse to comply. But restrictions, in terms of sanctions, are unlikely to be as successful because the smooth functioning of the regime is already threatened by the existence of black markets for ozone depleting substances
The regime has been considered effective in terms of actually achieving some of the recovery of the ozone layer. But the effectiveness of the regime still remains under question as now developing countries have to apply specific targets. Given the potential amount of ozone-depleting substances that could emitted by newly industrialized countries, the defection of developing countries from the regime could decidedly undermine the effectiveness of the regime.
The climate change regime is more complex than the ozone regime. There is some uncertainty about what climate change would involve and which countries it would adversely affect. Thus, although it could be presumed that most countries would prefer to remedy the ozone problem such presumption does not necessarily hold for climate change. Some countries/regions are to benefit from climate change, whereas others are to be losers. Furthermore, certain countries have come to contest the science behind climate change making the regulation of climate change even more complex and acrimonious. The enclosure of global commons of the air in terms of climate change control started with a framework convention and was firmed by the Kyoto Protocol. The Kyoto Protocol has established a number of mechanisms, such as joint implementation, emissions trading, and the Clean Development Mechanism, to induce cooperation.
Given the nature of air as global commons, an inclusionary property regime had to be established based on the coercion or consensual accord of all possible stakeholders. It remains to be seen whether the enclosure of the air, in terms of control of greenhouse gases, would become effective because major emitters, such as the United States, have refused to join in the regime, claiming that the scientific evidence behind climate change claims is faulty. Assuming that there are no enticements for the United States to participate and in the absence of a coercive mechanism against a global hegemony, the air could remain an open access resource for major CO2 emitters.
Thus, the regime would be ineffective because those who perceive themselves as winners cannot compensate or even entice a major emitter that has much to lose in terms of current growth by the drastic reduction of greenhouse gases. Demands for the proper allocation of costs of the enclosure of the air have been articulated by developing countries. Countries in the developing world – such as India and China, which are to become large CO 2 emitters – have refused to join in the regime. These countries claim that the benefits they would forfeit in terms of further industrialization by joining in the regime outweigh significantly any compensation that would be offered by developed countries. The implied demand behind these claims is that unless substantial compensatory measures – such as availability of cleaner state-of-the-art technology at subsidized cost – are to become available, developing countries are not to abandon the business as usual scenario for their industrialization.
The climate change regime has just entered into force. This means that the market-based mechanisms included in the Kyoto Protocol that provide schemes of joint implementation among developed countries and between developed and developing countries could become soon fully operational. Experimentation with such schemes has already started.146 The degree of participation of developed and developing countries in such schemes would determine whether regulation of greenhouse gases is to be achieved in a more cost-efficient way rather than by command and-control measures. The market-based mechanisms included in the Kyoto Protocol need a comprehensive and quite laborious administrative apparatus to function smoothly. The development of such a well-functioning administrative apparatus would present a challenge for international institution-making.
As mentioned earlier, the effectiveness of an enclosure depends on how inclusive it is. If all potential participants agree on the rationale for an enclosure and decide to limit their takings (or discharges), then enclosure would be an effective means of managing the global commons. Another solution, the one most frequently encountered in practice, is to opt for the enclosure of a resource by a limited number of participants.
The other potential stakeholders would then be bought off (compensation or side payments) or be coerced to compliance. The marine pollution regime is based on the rationale of inclusiveness. With regard to sea dumping and pollution from ships, states have striven to develop regimes in which the majority of polluting countries would participate. Although participation seems to be satisfactory in terms of numbers, it is still lacking in terms of substance. Many countries, for instance, fail to report on the amount of hazardous substances they dump in the seas. The regime on the control of pollution from ships seems to be more successful because it is based on construction standards. There is speculation, however, that many illegal discharges still happen in the high seas.
The enclosure of the seas in terms of discharges from land-based sources has been the most challenging because there are so many sources of pollution. Countries that surround specific areas of the seas have usually entered into agreements to control pollution, but such regimes have been largely ineffectual given the nature of the problem involved. As a result, many land-based sources of pollution treat the seas as an open-access area. Because pollution from land-based sources constitutes the bulk of sea pollution, the seas, in terms of pollution control, have remained open-access areas.
The regime for the control of marine pollution has not been challenged significantly in terms of its distributive outcomes. Both developed and developing countries have been laggards with regard to restricting the number of substances they introduce into the seas as the regime for the control of land-based sources of pollution has demonstrated. At the same time, most developing countries are not considered to be significant polluters of the seas, as their level of industrialization is quite low.
The regime for the prevention of marine pollution acquired new steam after the 1992 Rio Conference. Many of the conventions for the protection of the seas have been revamped to include more explicit regulatory requirements. Some progress has been made in the certain regions of the developed world, as the Rhine River regime and the Danube River regime have demonstrated. These regimes have included a number of decisive measures to control the harmful substances that enter into the rivers and, consequently, into the seas. Overall, however, despite the number and increasingly stringent character of international conventions, not much has been accomplished in practice for the control of entry of pollutants in the seas. Therefore, one could claim that the regime has been lacking in effectiveness, as states have not seen marine pollution as a problem of such an international magnitude that would allow for the devotion of credible resources for its implementation.
For international waste transfers, the notion of equity has been translated to mean self-sufficiency. At the core of the waste regime is the achievement for every country of self-sufficiency in waste management. Equity as self-sufficiency dictates that states need to become self-reliant in the management of their environmental externalities so that they do not impose such externalities on other states. Behind this notion of equity as self-sufficiency lurks the belief that, unless self-sufficiency is imposed, the more powerful states would let their environmental externalities be borne by weaker states. Self-sufficiency attempts an ex ante distribution of externalities rather than an ex post facto correction of such externalities. Notions of self-sufficiency echo notions of equity as capability. Those responsible/capable of producing pollution must bear the externalities of polluting events.
There is a competing notion of equity, with regard to the waste issue, that has do with an appreciation of the fact that waste generation is a matter of common responsibility. All countries generate some waste. Requiring each country to become self-sufficient in all types of waste treatment and disposal seems to negate the notion of corrective equity, frequently expressed as solidarity. Furthermore, self-sufficiency undermines the function of international law as a device that cultivates cooperation among states. Corrective equity (or solidarity) has taken many forms in international law– such as assistance to countries with less capacity and resources and humanitarian intervention. Expressions of solidarity are not that infrequent in international arenas as, for instance, when countries send assistance to states hit by disasters.
The pursuit of self-sufficiency undermines cooperative behavior in international law that is so much needed in tackling issues of common concern. Self-sufficiency could threaten minimum order as it tends to promote isolationism. Notions of self-sufficiency in waste management could lead to ineffective and inefficient waste management decisions.
Furthermore, most international law, and especially international trade law, is based on the assumption that countries cannot be self-sufficient in everything. This is why it makes sense to trade with other countries. If waste could be reconceptualized as another good that states are willing to trade among themselves, the transnational management of wastes, based on the principle of sound waste management, could become a reality.
Wastes have acquired a bad name because they are by-products of industrial and household activity. Industries and households generate waste, but none of those responsible for waste generation is eager to shoulder the externalities of waste production. Altering notions of self-sufficiency with regard to waste management would require a change in assumptions about waste usability. Redefining wastes as potential sources for other material and energy production would be important in changing such perceptions.
The waste regime has been influenced by equity considerations with regard to who should be responsible for waste management and transfers and, thus, how to distribute the costs of an externality called waste. In an attempt to find an equitable solution, countries have enacted complex regulatory apparatuses. The international system for the control of waste movements, which has been replicated in regional fora (e.g., the EC context), is similarly quite burdensome. The implementation of an international waste control system has encountered difficulties. Waste generators have bypassed regulation by finding refuge in illegal markets. A stringent regulatory apparatus accompanied with the lack of credible enforcement demonstrates that, despite all rhetoric, states have not appreciated waste trade as a priority issue the way they have evaluated other matters, for instance, the control of trade in weapons of mass destruction.
National Biodiversity Resources
In principle, biodiversity resources are under the jurisdiction of a state. States often have asserted ownership over natural resources located within national borders. Thus, usually, resources not privately owned are likely to be government owned. Common property regimes, as a spontaneous development, have ceased to exist in most countries, whereas some countries are now experimenting with induced common property institutions, such as the CAMPFIRE program. States have been eager, otherwise, to state that they are effective sovereigns over their national resources. Given that states have been quite zealous in asserting sovereignty over their natural resources, an international enclosure of national commons does not seem to have much of a chance for success. An international enclosure of national commons would mean that governments have nominal control over their biodiversity resources and that the actual control is effectuated by states or other constituencies who have the power, will, and economic resources to play a decisive role in the management of natural resources of other states.
Government jurisdiction and control over national biodiversity resources have not always been effective. This is particularly the case in developing countries, where many governments may not have the capacity to monitor effectively the use of their resources that end up becoming open-access resources. Therefore, certain states and a number of environmental constituencies have made a conscious attempt to internationalize the management of certain national biodiversity resources. Internationalization of the protection of biodiversity resources has been attempted more or less successfully in different international fora. Some international instruments mention that biodiversity is the common concern of the global community.
There are instruments on the protection of specific habitats, species, species trade, and debt-for-nature swaps. Through these instruments, a number of states and environmental constituencies have been able to dictate management decisions in the developing world. The enclosure of biodiversity resources at the global level has been made possible through the enactment of various instruments that suggest management methods for national biodiversity resources by mandating, for instance, the establishment of protected areas and restrictions on the trade in endangered species. Some of these suggestions have been incorporated into the policies of certain developing countries under the presumption that eco development will bring more benefits than traditional development.
The international enclosure of biodiversity has been creeping into national systems under the name of effectiveness. It is assumed that if the international community intervenes in the management of national biodiversity resources of certain states such management would become more effective. International governance structures, it is assumed, more objectively gauge the benefits and costs of conservation of biodiversity resources. Governments, by contrast, are likely to be sidetracked by various short-term problems of economic development and are to neglect the preservation of resources.
The enclosure, however, has not been complete, as it has encountered resistance in developing countries. Developing countries have maintained an ambivalent attitude with regard to the internationalization of their resources. In terms of financial assistance, when the benefits are plentiful, enclosure is tolerated. But when the benefits are meager, enclosure is resisted. If those wishing to preserve biodiversity resources are able to provide satisfactory compensation to those who are willing to forfeit benefits from resource exploitation at the right price, international enclosure is successfully effectuated. In all other cases, internationalization is resisted. In terms of effectiveness, it is hard to claim that international enclosure has worked. Despite the number of international instruments adopted and stringent measures, including trade restrictions and prohibitions, many resources remain degraded. This is because international managers (as they spring from the bureaucracy of international organizations or NGOs) do not really have the insight to substitute local knowledgeable managers.
Expertise in environmental matters cannot substitute knowledge about local conditions. Environmental management decisions require some sensitivity to the social and economic conditions of local populations. Sometimes, international bureaucracies could become impervious to such concerns. Pronouncements of international institutions on the management of local resources are frequently conceived as out of touch with the realities that developing countries face. The decision to ban the trade in ivory was viewed as damaging to local management programs for endangered species and, thus, inequitable. Pressure to create international instruments for the protection of tropical forests have been perceived as one-sided (and by some as disguised trade restrictions) if similar protection measures are not to be placed on temperate forests. It is generally perceived as inequitable that some countries should bear the costs of resources preservation, whereas other countries were not (or are not) inhibited by similar concerns in their development.