Current trends and prospects

Although numerous international environmental treaties have been concluded, effective agreements remain difficult to achieve for a variety of reasons. Because environmental problems ignore political boundaries, they can be adequately addressed only with the cooperation of numerous governments, among which there may be serious disagreements on important points of environmental policy. Furthermore, because the measures necessary to address environmental problems typically result in social and economic hardships in the countries that adopt them, many countries, particularly in the developing world, have been reluctant to enter into environmental treaties. Since the 1970s a growing number of environmental treaties have incorporated provisions designed to encourage their adoption by developing countries. Such measures include financial cooperation, technology transfer, and differential implementation schedules and obligations.

The greatest challenge to the effectiveness of environmental treaties is compliance. Although treaties can attempt to enforce compliance through mechanisms such as sanctions, such measures usually are of limited usefulness, in part because countries in compliance with a treaty may be unwilling or unable to impose the sanctions called for by the treaty. In general, the threat of sanctions is less important to most countries than the possibility that by violating their international obligations they risk losing their good standing in the international community. Enforcement mechanisms other than sanctions have been difficult to establish, usually because they would require countries to cede significant aspects of their national sovereignty to foreign or international organizations. In most agreements, therefore, enforcement is treated as a domestic issue, an approach that effectively allows each country to define compliance in whatever way best serves its national interest. Despite this difficulty, international environmental treaties and agreements are likely to grow in importance as international environmental problems become more acute.

Many areas of international environmental law remain underdeveloped. Although international agreements have helped to make the laws and regulations applicable to some types of environmentally harmful activity more or less consistent in different countries, those applicable to other such activities can differ in dramatic ways. Because in most cases the damage caused by environmentally harmful activities cannot be contained within national boundaries, the lack of consistency in the law has led to situations in which activities that are legal in some countries result in illegal or otherwise unacceptable levels of environmental damage in neighbouring countries.

This problem became particularly acute with the adoption of free trade agreements beginning in the early 1990s. The North American Free Trade Agreement (NAFTA), for example, resulted in the creation of large numbers of maquiladoras—factories jointly owned by U.S. and Mexican corporations and operated in Mexico—inside a 60-mile- (100-km) wide free trade zone along the U.S.-Mexican border. Because Mexico’s government lacked both the resources and the political will to enforce the country’s environmental laws, the maquiladoras were able to pollute surrounding areas with relative impunity, often dumping hazardous wastes on the ground or directly into waterways, where they were carried into U.S. territory. Prior to NAFTA’s adoption in 1992, the prospect of problems such as these led negotiators to append a so-called “side agreement” to the treaty, which pledged environmental cooperation between the signatory states. Meanwhile, in Europe concerns about the apparent connection between free trade agreements and environmental degradation fueled opposition to the Maastricht Treaty, which created the EU and expanded its jurisdiction.