_______________________________________________________________________________

Anton TREATY CONGESTION Page 1

“Treaty Congestion” in Contemporary

International Environmental Law
Donald K. Anton
Associate Professor of Law
The Australian National University College of Law

Looking back now, the rapid growth of international environmental

conventional norms that took place over roughly the last thirty years of the
twentieth century is striking.1 Few fields have burst on the scene with as
much unplanned fecundity. John Lawrence Hargrove was perhaps the only
one who thought to asked in 1971 near the beginning of the modern
international environmental law enterprise, “[h]ow much international law-
making is required” to protect the global environment?2 Answers were few, if
any.
Instead, the standard account tells of a piecemeal and ad hoc
development of international environmental law as a response to particular
crisis and new challenges and problems.3 As these increased in number and
international environmental law-making gathered steam just keeping up-to-
date required (and still requires) concerted effort.4 More significantly, the

1 Birnie, Boyle and Redgwell highlight the modern profligacy of international environmental law in
the opening to the third edition of their pioneering treatise: “„la grande fertilité de cette branche du
droit international‟”. Patricia Birnie, Alan Boyle & Catherine Redgwell, International Law & the
Environment, Oxford: Oxford Univ. Press, 2009, p. 1 (quoting P.M. Dupuy, „Où en est le droit
international de l‟environnment á la fin du siècle?‟ Revue Général de Droit International Public, 1997, vol.
101, 873, 900). See also Daniel Bodansky, Jutta Brunnee, and Ellen Hey, „International Environmental
Law: Mapping the Field‟, in Daniel Bodansky, Jutta Brunnee, and Ellen Hey, eds, The Oxford Handbook
of International Environmental Law, Oxford: Oxford Univ. Press, 2007, p. 3.

2John Lawrence Hargrove, ed., Law, Institutions & The Global Environment, Dobbs Ferry, NY/Leiden:
Oceana Publications, Inc./A.W. Sijthoff, 1971, p. 170.

3United Nations Environment Programme (UNEP), Training Manual on International Environmental

Law, Nairobi: UNEP, 2006, p. 23.

4 The majority of the academe was somewhat slow to catch up with the expanding field. There were,
of course, a number of early pioneering texts, including: Richard Falk, This Endangered Planet: Prospects
and Proposals for Human Survival, New York: Random House, 1972; John Lawrence Hargrove, ed., Law,
Institutions & the Global Environment; Lynton K. Caldwell, In Defense of Earth: International Protection of the
Biosphere, Bloomington/London: Indiana Univ. Press, 1972. However, as late as 1989, Philippe Sands
was able to write that the leading treatises and textbooks on international law “fail in their index to
make any mention of the words „environment‟ or „pollution‟.” Harvard International Law Journal, 1989,
vol. 30, 393, 394 n. 3. Surprisingly, some still appear to view the field of international environmental
law as a normatively barren landscape, asserting that international environmental law does “not [have]
a great deal of law in it”. Catherine MacKenzie, „LL.M. Subject Forum 2010: International
Environmental Law, University of Cambridge, Faculty of Law‟, available at:
http://www.law.cam.ac.uk/faculty-resources/summary/llm-subject-forum-2010-international-
environmental-law/7775.

Electronic
Electroniccopy
copyavailable
availableat:
at:https://ssrn.com/abstract=1988579
http:/ ssrn com/abst act=1988579
_______________________________________________________________________________
Anton TREATY CONGESTION Page 2

rapid growth of the law posed problems for states and the international
system in the form of what came to be known as “treaty congestion”. This
contribution is designed to provide, in short compass, a current review of
treaty congestion, focusing in particular on its capacity and normative
challenges.

I. The Phenomenon of Treaty Congestion

A. Overwhelmed by Treaties

The essence of treaty congestion lies in the appearance of too much

law, too fast. For international environmental law, the normative proliferation
took place in plain view and was contemporaneously chronicled in an array of
treaty collections. Starting in the mid-1970s with Wolfgang Burhenne &
Robert Muecke‟s ongoing loose-leaf service5 and Bernd Rüster & Brunno
Simma‟s thirty volume collection of international environmental treaties6 –
and continuing with increasing frequency – an impressive host of general and
specialized compilations of the multiplying numbers of multilateral
environmental agreements appeared.7 By the late-1990s, it was estimated that
5 W. E. Burhenne, ed. & Robert Muecke, comp., International Environmental Law: Multilateral Treaties, 9
loose-leaf vols, Berlin: E. Schmidt, 1974-onwards.

6 Bernd Rüster and Burno Simma, eds, International Protection of the Environment: Multilateral Treaties, 30
vols [1754-1981], Dobbs Ferry, NY: Oceana Publications, 1975-1983. In 1990 the publication, with a
slightly modified title, but with the same editors and publisher, continued in a second series Bernd
Rüster and Burno Simma, eds., International Protection of the Environment: Treaties and Related Documents,
Second Series [1981-], Dobbs Ferry, NY: Oceana Publications, 1989-. A 6 volume third series also
appeared specifically for the proceedings of the 1992 United Nations Conference on Environment
and Development. See Nicholas A. Robinson, ed., Agenda 21 & The UNCED Proceedings, New York:
Oceana Publications, Inc., 1992.

7 See Alexandre Charles Kiss, ed., Selected Multilateral Treaties in the Field of the Environment, Nairobi,
Kenya: United Nations Environment Programme, 1983; Philippe Sands, Chernobyl: Law and
Communication, Cambridge: Grotius Publications, 1988; Peter Sand, Marine Environmental Law in the
United Nations Environment Programme, Dublin: Tycooly, 1988; United Nations Environment
Programme, Register of International Treaties and Other Agreements in the Field of the Environment, Nairobi,
Kenya, 1989 and updated regularly, currently U.N. Doc. UNEP/Env.Law/2005/3 (2005); Iwona
Rummel-Bulska and Seth Osafo, eds, Selected Multilateral Treaties in the Field of the Environment, vol. 2,
Nairobi: United Nations Environment Programme, 1991; Paul R. Molitor, ed., International
Environmental Law: Primary Materials, Deventer/Boston: Kluwer Law and Taxation Publishers, 1991;
Edith Brown Weiss, Paul C. Szasz & Daniel B. Magraw, eds, International Environmental Law: Basic
Instruments and References, Dobbs Ferry, NY: Transnational Publishers, Inc., 1992; Harold Hohmann,
ed., Basic Documents of International Environmental Law, 3 vols, London/Dordrecht/Boston: Graham &
Trotman/Martinus Nijhoff, 1992; Preparatory Committee for the United Nations Conference on
Environment and Development, Report of the Secretary-General of the Conference on the Survey of Existing
Agreements and Instruments and its Follow-up, U.N. Doc. A/CONF.151/PC/103 and Add.1 (30 April
1992); Barbara Kwiatkowska & Alfred H.A. Soons, eds, Transboundary Movements and Disposal of
Hazardous Wastes in International Law: Basic Documents, Dordrect/Boston/London: Martinus
Nijhoff/Graham & Trotman, 1993; Günter Hoog & Angela Steinmets, eds, International Conventions on
Protection of Humanity and Environment, Berlin/New York: Walter de Gruyter, 1993; Wolfgang Burhenne

Electronic
Electroniccopy
copyavailable
availableat:
at:https://ssrn.com/abstract=1988579
http:/ ssrn com/abst act=1988579
_______________________________________________________________________________
Anton TREATY CONGESTION Page 3

over 1000 different international environmental legal instruments (hard and

soft) 8 and 139 different major international environmental treaties9 were in
existence. In the years between 1972 and 1992 alone, it was said that more
than 50 multilateral treaties relating to the protection of the marine
environment were concluded.10
As this normative proliferation took place, one was reminded of
Cicero‟s teaching, summum ius summa iniuria (“the more law, the less justice”)11
and it became apparent that the increasing number of treaties and subjects of
international environmental obligation would pose several distinct challenges.
As a general matter of legal effectiveness, the apparent continuing
environmental decline, despite the normative build-up, prompted Martti
Koskenniemi to write in 1992 that “[w]hat is needed now is less the adoption
of new instruments than more effective implementation of existing ones”.12
Soon, more specific concerns gained attention.

& Marlene Jahnke, eds, International Environmental Soft Law: Collection of Relevant Instruments, looseleaf
service, Dordrecht/Boston: Martinus Nijhoff Publishers, 1993-2003; Philippe Sands, Richard
Tarasofsky, and Mary Weiss, eds, Documents in International Environmental Law, 2 vols., Manchester, UK:
Manchester Univ. Press, 1994; Patricia W. Birnie & Alan Boyle, eds, Basic Documents on International
Environmental Law, Oxford: Clarendon Press, 1995; Wolfgang Burhenne & Nicholas Robinson, eds,
International Protection of the Environment: Conservation in Sustainable Development, looseleaf service, 1995-
present (Dobbs Ferry, NY: Oceana Publications); United States National Oceanic and Atmospheric
Administration, 1998 Year of the Ocean: A Survey of International Agreements, Washington, DC: NOAA,
1998; Edith Brown Weiss, Daniel Barstow Magraw & Paul C. Szasz eds, International Environmental
Law: Basic Instruments and References 1992-1999, Dobbs Ferry, NY: Transnational Publishers, Inc., 1999;
Mark Austen & Tamara Richards, Basic Legal Documents on International Animal Welfare and Wildlife
Conservation, The Hague/London/Boston: Kluwer Law International, 2000.
See also the extensive document supplements that have accompanied the various editions of
major casebooks on International Environmental Law: Lakshman D. Guruswamy, Geoffrey W.R.
Palmer, Burns H. Weston, Jonathan C. Carlson, eds, Supplement of Basic Documents to International
Environmental Law and World Order, St Paul: West Group, 1994 and 1999; David Hunter, James
Salzman & Durwood Zaelke, eds, International Environmental Law and Policy Treaty Supplement, New
York: Foundation Press, 2002, 2007 and 2011; Donald K. Anton, Jonathan I. Charney, Philippe
Sands, Thomas J. Schoenbaum & Michael K. Young, eds, International Environmental Law: Cases,
Materials, Problems: Document Supplement, Newark: LexisNexis, 2007.

8 8 Edith Brown Weiss, Understanding Compliance with International Environmental Agreements:

The Baker‟s Dozen Myths, University of Richmond Law Review, 1999, vol. 32, p. 1555.

9United Nations Environment Programme, Register of International Treaties, U.N. Doc.

UNEP/GC.15/Inf.2 (1989).

10Andronico O. Adede, International Environmental Law Digest: Instruments for International Responses to
Problems of Environment and Development 1972-1992, Amsterdam: Elsiver, 1992, p. 14.

11 M. Tullii Ciceronis, De Officiis ad Marcum Filium (G. Fr. Unger, erklært), Leipzig: Weidmann‟s

Buchhandlung, 1852, p. 18; Marcus Tullius Cicero, De Officiis (Walter Miller, trans.), Cambridge:
Harvard Univ. Press, 1913, Bk I, p. 33. See David J. Bederman, The Spirit of International Law, Athens:
GA, Univ. of Georgia Press, 2002, p. 205.

12Martti Koskenniemi, „Breach of Treaty or Non-Compliance? Reflections on the Enforcement of

the Montreal Protocol‟, Yearbook of International Environmental Law, 1992, vol. 3, 123.

Electronic copy available at: https://ssrn.com/abstract=1988579

_______________________________________________________________________________
Anton TREATY CONGESTION Page 4

These concerns were neatly encapsulated in a 1993 critique of

contemporary international environmental law by Edith Brown Weiss.13
Brown Weiss indentified that the surfeit of international environmental law
could constitute too much of a good thing and result in negative efficiency
outcomes. In particular, Brown Weiss showed it is possible that a swiftly
expanding corpus of international environmental law might create two major
problems. First, as a practical matter, a large number of new international
environmental treaties might overwhelm the capacity of states and the
international system to monitor, to implement, and to comply with a plethora
of new obligations.14 As a result, states might find that the impressive edifice
of law they had created would prove ineffective in ameliorating the
environmental problems addressed.15 Second – and more normatively
troubling – Brown Weiss highlighted that a large, growing, and uncoordinated
body of international environmental law posed a danger of inconsistent
obligations, overlapping norms, gaps in coverage, and outright duplication.16
Brown Weiss coined the term “treaty congestion” as a way to explain
these capacity and normative problems.17 She argued, however, that the
solution to treaty congestion did not necessarily lay in slowing the process of
norm creation, but rather, in making the process more manageable and
efficient.18 Since Brown Weiss wrote, the phenomenon of treaty congestion

13 Edith Brown Weiss, „International Environmental Law: Contemporary Issues and the Emergence

of a New World Order‟, Georgetown Law Journal, 1993, vol. 81, 675, 697-702.

14 Ibid.

15A significant literature on global environmental governance demonstrates just this point. See, e.g.,
Mohamed El-Ashry, „Recommendations from the Hi-Level Panel on System-Wide Coherence on
Strengthening International Environmental Governance, in Lydia Swart & Estelle Perry, eds, Global
Environmental Governance: Perspectives on the Current Debate, New York: Center for UN Reform Eduction,
2007, p. 7; Elizabeth Maruma Mrema, „Cross-Cutting Issues Related to Ensuring Compliance with
MEAs, in Ulrich Beyerlin, Peter-Tobias Stoll & Rüdiger Wolfrum, eds, Ensuring Compliance with
Multilateral Environmental Agreements: A Dialogue Between Practitioners and Academia, The Netherlands:
Martinus Nijhoff, 2006, p. 201.

16Edith Brown Weiss, „International Environmental Law: Contemporary Issues and the Emergence
of a New World Order‟, pp. 699-700.

Ibid., at 697. See W. Brandee Chambers, Interlinkages and the Effectiveness of Multilateral Environmental
17

Agreements, Tokyo/New York/Paris: United Nations University Press, 2008, p. 6.

18Edith Brown Weiss, „International Environmental Law: Contemporary Issues‟, Georgetown Law
Journal, 1993, vol. 81, 675, 697 n. 147. See also Edith Brown Weiss, „Introduction‟, in Edith Brown
Weiss, ed., Environmental Change and International Law: New Challenges and Dimensions, Tokyo: United
Nations Univ. Press, 1992, p. 12; Edith Brown Weiss, „The New International Legal System‟, in
Nandasiri Jasentuliyana, Perspectives on International Law, The Netherlands: Kluwer Law International,
1995, p. 81; Edith Brown Weiss, „Environmental Equity: The Imperative for the Twenty-First
Century‟ in Winfred Lang, ed., Sustainable Development and International Law,
London/Dordrecht/Boston: Graham & Trotman/Martinus Nijhoff, 1995, pp. 23-26; Edith Brown

Electronic copy available at: https://ssrn.com/abstract=1988579

_______________________________________________________________________________
Anton TREATY CONGESTION Page 5

has been widely observed and has garnered notable scholarly and professional
attention. It has been treated in a variety of monographs19 and is repeatedly
mentioned in a voluminous periodic literature.20

Weiss, „The Emerging Structure of International Environmental Law‟ in Norman J. Vig & Regina S.
Axelrod, eds, The Global Environment: Institutions, Law, and Policy, Washington, DC: CQ Press, 1999, pp.
110-111.

19For monographic treatment of treaty congestion, see, e.g., Daniel Bodansky, The Art and Craft of
International Environmental Law, Cambridge: Harvard Univ. Press, 2010, p. 35; Ben Boer, Ross Ramsay
and Donald Rothwell, International Environmental Law in the Asia Pacific, The Netherlands: Kluwer Law
International, 1998, pp. 286, 316; W. Brandee Chambers, Interlinkages and the Effectiveness of Multilateral
Environmental Agreements, Tokyo/New York/Paris: United Nations University Press, 2008; Daniel C.
Esty, Greening The GATT: Trade, Environment, and the Future, Washington, DC: Institute for
International Economics, 1994, pp. 78, 96; Malgosia A. Fitzmaurice, „International Protection of the
Environment‟ Recueil des Cours, 2001, vol. 293, pp. 98-100; John F. Murphy, The Evolving Dimensions of
International Law, Cambridge: Cambridge Univ. Press, 2010, pp. 261-62; Rajendra Ramlogan, The
Developing World and the Environment: Making the Case, Lanham, MD: University Press of
America, 2004, pp. 236-238; Cesare P.R. Romano, The Peaceful Settlement of International Environmental
Disputes: A Pragmatic Approach, The Hague/Boston/London: Kluwer Law International, 2000, pp. 35-
45; Christina Voigt, Sustainable Development as a Principle of International Law: Resolving Conflicts Between
Climate Measures and WTO Law, Leiden: Martinus Nijhoff, 2009, chap. 7; Oran Young, Governance in
World Affairs, Ithaca, NY: Cornell Univ. Press, 1999, p. 72.

20 For periodic literature and book chapters addressing treaty congestion, see William Beardslee,
„International Law & The Environment: The Need for an Aggregate Organization‟, Journal of
International Law and Practice, vol. 5, 1996, pp. 384-393; Frank Biermann, Fariborz Zelli, Philipp
Pattberg, & Harro van Asselt, „The Architecture of Global Climate Governance: Setting the Stage‟, in
Frank Biermann, Philipp Pattberg, & Fariborz Zelli, eds, Global Climate Governance Beyond 2012:
Architecture, Agency, and Adaptation, Cambridge: Cambridge Univ. Press, 2010, p. 17; Daniel Bodansky,
„The Role of Reporting in International Environmental Treaties: Lessons for Human Rights
Supervision‟, in Philip Alston & James Crawford, eds, The Future of UN Human Rights Treaty Monitoring,
Cambridge: Cambridge Univ. Press, 2000, p. 361; Christopher J. Borgen, „Resolving Treaty Conflicts‟,
George Washington International Law Review, vol. 37, 2005, pp. 576-579; William Boyd, „Climate Change,
Fragmentation, and the Challenges of Global Environmental Law: Elements of a Post-Copenhagen
Assemblage‟, University of Pennsylvania Journal of International Law, vol. 32, 2010, p. 503; Wil Burns,
„Convention on the Conservation of Migratory Species of Wild Animals‟, Yearbook of International
Environmental Law, 2005, vol. 16, p. 462; Richard Caddell, „International Law and the Protection of
Migratory Wildlife: An Appraisal of Twenty-Five Years of the Bonn Convention‟, Colorado Journal of
International Environmental Law and Policy, 2005, vol. 16, 113, 147-151; Daniel Esty, „The Case for a
Global Environmental Organization‟, in Peter B. Kenen, ed., Managing the World Economy: Fifty Years
After Bretton Woods, Washington, DC: Institute for International Economics, 1994, p. 291; Thomas
Gehring & Sebastian Oberthür, „Comparative Empirical Analysis and Ideal Types of Institutional
Interaction‟, in Sebastian Oberthür & Thomas Gehring, eds, Institutional Interaction in Global
Environmental Governance: Synergy and Conflict Among International and EU Policies, Cambridge: MIT Press,
2006, p. 318; Günter Handl, „Compliance Control Mechanisms and International Environmental
Obligations‟, Tulane Journal of International and Comparative Law, vol. 5, 1997, pp. 29-30; Günter Handl,
„Regional Arrangements and Third State Vessels: Is the Pacta Tertiis Principle Being Modified?”, in
Henrick Ringborn, ed., Competing Norms in the Law of Marine Environmental Protection, The Netherlands:
Kluwer Law International, 1997, p. 217; Bethany Lukitsch Hicks, Comment, „Treaty Congestion in
International Environmental Law: The Need for Greater International Coordination‟, University of
Richmond Law Review, vol. 32, 1999, pp. 1643-1674; Laurent R. Hourcle, „Environmental Law of War‟,
Vermont Law Review, vol. 25, 2001, p. 675; Maria Ivanova, „Environment: The Path of Global
Environmental Governance – Form and Function in Historical Perspective, in Yvonne Rydin, ed.,
Governing for Sustainable Urban Development, London: Earthscan, 2005, p. 47; Michael I. Jeffery,

Electronic copy available at: https://ssrn.com/abstract=1988579

_______________________________________________________________________________
Anton TREATY CONGESTION Page 8

II. Treaty Congestion and the Capacity Challenge

Treaty congestion in a particular field of international law, especially

when proliferating treaties are widely ratified, will invariably be accompanied
by treaty over-commitment for significant numbers of states. Over-
commitment has been a feature of contemporary international environmental
law. At a fundamental level, over-commitment seriously challenges the
capacity of states to implement and comply with their international
obligations.27 This is especially so for states without the requisite human,
institutional, and technological resources to deal effectively, if at all, with
expanding obligations. Of course, state compliance with international
environmental obligations is a necessary (if not almost always sufficient)
condition of effectiveness in most cases – either in terms of fixing the
environmental problem addressed or in successfully changing state behaviour
in relation to treaty norms.28
Over-commitment caused by treaty congestion poses a number of
capacity challenges. Three in particular have been the source of concern for
international environmental law. First, as noted, the basic ability to comply
with substantive obligations is undermined by an unmanageable number of
commitments. Second, as treaty bodies and institutions proliferate along with
the growing corpus of conventions, the capacity of states to meaningfully
participate in institutional activities to advance their interests is eroded. Third,
the ability of states to adequately monitor and report on the implementation
of their obligations, as international environmental treaties increasingly
require, is hampered by treaty congestion. These capacity challenges can be
conceptualized as substantive compliance challenges, institutional
participation challenges, and monitoring and reporting process challenges.29

W. Brandee Chambers, Interlinkages and the Effectiveness of Multilateral Environmental Agreements,

27

Tokyo/New York/Paris: United Nations University Press, 2008.

28 For detailed discussions of the meanings of implementation and compliance, especially as they are
tied to effectiveness, see Oran R. Young and Marc A Levy (with Gail Osherenko), „The Effectiveness
of International Environmental Regimes‟, in Oran R. Young, ed., The Effectiveness of International
Environmental Regimes: Causal Connections and Behavioral Mechanisms, Cambridge, MA: MIT Press, 1999,
pp. 3-6; Harold K. Jacobson & Edith Brown Weiss, „A Framework for Analysis‟, in Edith Brown
Weiss & Harold K. Jacobson, eds, Engaging Countries: Strengthening Compliance with International
Environmental Accords, Cambridge, MA: MIT Press, 1998, pp. 4-13; David G. Victor, Kal Raustiala, &
Eugene B. Skolnikoff, eds, „Introduction and Overview‟ in The Implementation and Effectiveness of
International Environmental Commitments: Theory and Practice, Cambridge: MIT Press, 1998, pp. 6-8.

29 I do not adopt the substantive and procedural treaty congestion distinction suggested in Bethany
Lukitsch Hicks, Comment, „Treaty Congestion in International Environmental Law: The Need for
Greater International Coordination‟, University of Richmond Law Review, vol. 32, 1999, pp. 16443-1645.
This limited differentiation is not nuanced enough to disentangle more distinct phenomena created by
treaty congestion discussed here.

Electronic copy available at: https://ssrn.com/abstract=1988579

_______________________________________________________________________________
Anton TREATY CONGESTION Page 9

Each of these capacity challenges is explored below, along with strategies the
international community has employed to help meet them.30

A. Substantive Compliance Challenges

Treaty congestion represents a significant challenge for states

(especially developing states) in meeting environmental treaty commitments.31
Substantive compliance challenges involve treaty congestion impediments that
thwart the fulfilment of agreed environmental obligations with substantive
environmental outcomes – i.e. preventing pollution, reducing emissions,
conserving biological diversity, protecting world heritage. At bottom, these
impediments stem from a lack of human, financial, and technological
resources required to effectively implement obligations.32 The lack of
necessary resources virtually assures that compliance will be deficient.
However, very often additional impediments exist and come in a
number of different forms. Adequate financial and human capability is
necessary for effective capacity, but it is not necessarily sufficient. 33 In
addition to the presence of adequate financial and human resources, a
fundamental capacity to meet the implementation demands of environmental
treaties will involve a variety of related abilities. These include the ability of a
state: i) to overcome domestic institutional weaknesses in political structures
and legal frameworks, ii) to remove market impediments, iv) to provide
missing incentives or remove perverse incentives, v) to effectively manage and
coordinate across treaty obligations, vi) to effectively incorporate public

See generally Bali Strategic Plan for Technology Support and Capacity Building, Governing Council of the
30

United Nations Environment Programme, Note by the Executive-Director, U.N. Doc.

UNEP/GC.23/6/Add.1 (23 December 2004).

31In this paper it is assumed that states have had the requisite incentives to join international
environmental treaties in a number that stretches capacity. Some of the incentives used to promote
participation in international environmental regimes – in particular financing and technology transfer
– are the same mechanisms used to boost capacity. See Anita Halvorssen, Equality Among Unequals in
International Environmental Law: Differential Treatment for Developing Countries, Boulder, CO: Westview
Press, 1999, chaps 4 and 5.

32 David Freestone, „The Challenge of Implementation: Some Concluding Notes‟, in Alan Boyle &

David Freeston, eds, International Law and Sustainable Development, Oxford: Oxford Univ. Press, 1999, p.
360.

33 Martin Jänicke & Helmut Weidner, „Summary: Global Environmental Policy Learning‟, in Martin
Jänicke & Helmut Weidner, eds, National Environmental Policies: A Comparative Study of Capacity-Building,
Berlin: Springer, 1997, p. 309, reviewed in Mark A. Drumbl, „Does Sharing Know Its Limits?
Thoughts on Implementing International Environmental Agreements‟ Virginia Environmental Law
Journal, vol. 18, 1999, pp. 281-304. See also Helmut Weidner & Martin Jänicke, „Summary:
Environmental Capcity Building in a Converging World‟, in Helmut Weidner & Martin Jänicke &,
eds, Capacity Building in National Environmental Policy: A Comparative Study of 17 Countries, Berlin:
Springer-Verlag, 2002.

Electronic copy available at: https://ssrn.com/abstract=1988579

_______________________________________________________________________________
Anton TREATY CONGESTION Page 10

participation and private sector involvement, and vii) to access reliable and
necessary information.34 These capacity challenges are compounded by the
complexity of a tangled web of multiple environmental regimes. 35

B. Institutional Challenges

Treaty congestion has greatly expanded the number of international

environmental institutions that place demands on the attention and resources
of states.36 These institutions include an array of treaty bodies – a plethora of
regime specific secretariats, conference/meeting of parties, subsidiary bodies,
non-compliance mechanisms, and working groups – created by the expanding
treaty universe.37 The work created by these treaty bodies involves capacity
and expertise demands on states to participate in further normative
developments, internal and external compliance monitoring, decision-making
regarding regime specific projects, and decision-making regarding disputes.38
This work continues to grow for states with treaty congestion and at the
institutional level has resulted in what has been called “institutional
overload”39 – the demand of extensive and intensive party participation.40
The institutional demands created by treaty congestion are exacerbated
by competing demands that come from other international intuitions.41 These

34 Robert T. Watson, John A. Dixon, Steven P. Hamburg, Anthony C. Janetos & Richard H. Moss,

Protecting Our Planet, Securing Our Future: Linkages Among Global Environmental Issues and Human Needs,
UNEP, U.S. NASA, World Bank, 1998, p. 57; Mark A. Drumbl, „Does Sharing Know Its Limits?
Thoughts on Implementing International Environmental Agreements‟, pp. 287-288; Harold K.
Jacobson & Edith Brown Weiss, „Assessing the Record and Designing Strategies to Engage
Countries‟, in Edith Brown Weiss & Harold K. Jacobson, eds, Engaging Countries: Strengthening
Compliance with International Environmental Accords, Cambridge, MA: MIT Press, 1998, pp. 543-545.

35Peter Sand, Lessons Learned in Global Environmental Governance, Washington, DC: World Resources
Institute, 1990, p. 35. For a municipal law treatment of problems of legal complexity, see Peter H.
Schuck, The Limits of Law: Essays on Democratic Governance, Boulder, CO: Westview Press, 2000, pp. 7-
15.

36See Bharat H. Desai, Institutionalizing International Environmental Law, Ardsley, NY: Transnational
Publishers, 2004, pp. 279-280.

37 Kamen Sachariew, „Promoting Compliance with International Environmental Law: Reflections on

Monitoring and Reporting Mechanisms‟, Yearbook of International Environmental Law, vol. 2, p.31.
38 See Ellen Hey, „International Institutions‟ in Daniel Bodansky, Jutta Brunnee, and Ellen Hey, eds,

The Oxford Handbook of International Environmental Law, Oxford: Oxford Univ. Press, 2007, p. 749.
39 Marc A. Levy, Robert O. Keohane & Peter M. Haas, „Improving the Effectiveness of International

Environmental Insitutions‟, in Peter M. Haas, Robert O. Keohane & Marc A. Levy, eds., Institutions for
Earth: Sources of Effective International Environmental Protection, Cambridge, MA: MIT Press, pp. 421-422.

40Abraham Chayes & Antonio Handler Chayes, The New Sovereignty: Compliance with International
Regulatory Agreements, Cambridge, MA: Harvard Univ. Press, 1995, p. 283.

Patricia Birnie, Alan Boyle & Catherine Redgwell, International Law & the Environment, Oxford:
41

Oxford Univ. Press, 2009, pp. 58-100.

Electronic copy available at: https://ssrn.com/abstract=1988579

_______________________________________________________________________________
Anton TREATY CONGESTION Page 11

include the United Nations specialized agencies engage in environmental

activities like the International Maritime Organization (IMO) and the Food
and Agricultural Organization (FAO), and institutions that have been
established by the United Nations General Assembly like the United Nations
Environment Programme (UNEP), the United Nations Development
Program (UNDP, the Commission on Sustainable Development (CSD).
Additionally, a world of intergovernmental organizations created by treaties
outside the United Nations exists that engage with environmental issues that
also place demands on states.42 These include institutions such as the
International Bank for Reconstruction and Development and other
institutions of the World Bank Group, the World Trade Organization (WTO),
the Global Environment Facility (GEF), and the Intergovernmental Panel on
Climate Change (IPCC).
Because these treaty bodies and institutions exist independently of each
other and are largely uncoordinated, the institutional framework is subject to
significant administrative inefficacies. Consider, for instance, the burden
imposed on states in terms of human and financial resources just to
participate in institutional meetings. For a start, the functions served – from
norm development to decision on approving financing for projects – and the
expertise and capacity demanded is considerable. Additionally, the secretariats
of treaty bodies and the headquarters of other organizations are dispersed
across the globe. Moreover, the number of meetings that require attendance
is enormous and the timing and venue of meetings varies.
To get an idea of this sort of institutional demand, in 2010 alone the
International Institute for Sustainable Development‟s (IISD) Earth
Negotiations Bulletin reported sixty-three major institutional and diplomatic
meetings.43 Thus far in 2011, thirty-seven major meetings have taken place.44
Even in the more limited context of international wildlife law Geoffrey
Wandesforde-Smith observes that one really needs to:

[t]hink … about the demands [of] participation in international

affairs. Glance, for example, at the weekly or monthly intelligence
bulletins published by the International Institute for Sustainable
Development (IISD), including listings of the giddy round of meetings

42Many of the organizations have entered into agreements with the United Nations Economic and
Social Council that establish cooperative arrangements with the United Nations.

43Meetings covered by IISD Reporting Services in 2010, available at:

http://www.iisd.ca/meetings/2010.html. The Earth Negotiations Bulletin is a free service of the
International Institute for Sustainable Development (IISD). See http://www.iisd.ca/enbvol/enb-
background.htm.

44 Ibid., available at: http://www.iisd.ca/enbvol/enb-activities.htm.

Electronic copy available at: https://ssrn.com/abstract=1988579

_______________________________________________________________________________
Anton TREATY CONGESTION Page 12

and events, widely distributed around the globe, that those who want
to have a place at the table and some prospect of influence will need to
think about attending. … And it is even harder to see how to make
sense of it all. Does it make sense, except as a recipe for international
political insomnia or exhaustion for those caught up in all of this …?45

Assuming attendance is possible, effective participation in these bodies

imposes additional significant demands on the administrative capacity of
states.46 In particular, the expertise required to be an effective participant is
significant and treaty congestion has spread resources thin.47 Of course, non-
participation or perfunctory participation in institutional decision-making,
compliance, and implementation activities compromises the ability of a state
to promote its own interests. Just as importantly, it also potentially deprives
the institution or regime of ideas or additional options (possibly the best ones)
that it might have had available if greater participation had been possible.

C. Monitoring and Reporting Process Challenges

Perhaps the most immediate practical challenge that treaty congestion

has raised is the way it can diminish the capacity of states to monitor and
report on the implementation of the myriad environmental obligations
established over the last forty years.48 Without an international institutional
authority to implement and monitor the treaty performance of states,
obligations to monitor and report on activities related to implementation of
and compliance with conventional requirements are now commonly imposed
on states as an internal supervisory technique.49 The proliferation of
45Geoffrey Wandesforde-Smith, „From Sleepy Treaties to Giddy Insomnia of Global Governance:
How International Wildlife Law Makes Headway‟, Journal of International Wildlife Law & Policy, vol. 14,
2011 (forthcoming), p. 9 (copy on file with author).

46This is in addition to demands imposed by a host of the more universal, functional environmental
institutions, such as the United Nations Environment Programme and the Commission on
Sustainable Development, and more general specialized agencies with an environmental remit.

47 Preparatory Committee for the United Nations Conference on Sustainable Development, Second
Session, Objective and Themes of the United Nations Conference on Sustainable Development, Report of the
Secretary-General, U.N. Doc. A/CONF.216/PC/7 (22 December 2010), para. 108.
48 This assumes that legal, administrative, and political implementation capacity of a state would be

otherwise present. For many states, of course, this is not the case and treaty congestion will
exacerbate strains on a capacity already challenged. Cf Lothar Gündling, „Compliance Assistance in
International Environmental Law: Capacity-Building Through Financial and Technology Transfer‟,
Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht, vol. 56, 1996, p. 796.

49Donald K. Anton & Dinah Shelton, Environmental Protection and Human Rights, pp. 112-114; Rüdiger
Wolfrum, „Means of Ensuring Compliance with and Enforcement of International Environmental
Law‟, Recueil des Cours, vol. 272, 1998, p. 37; Lee A. Kimball, Forging International Agreement: Strengthening
Inter-Governmental Institutions for Environment and Development, Washington, DC: World Resources
Institution, 1992, pp. 13-20, 49-55; Gerhard Loibl, „Reporting and Information Systems in

Electronic copy available at: https://ssrn.com/abstract=1988579

_______________________________________________________________________________
Anton TREATY CONGESTION Page 13

environmental reporting obligations under different treaties (in addition to

non-environmental reporting obligations) can significantly overburden the
administrative capacity of a state to accurately report or, indeed, to report at
all.50
Capacity is challenged by both the large number of monitoring and
reporting requirements and significant differences in those requirements
across regimes.51 It is well know that even with the best of intentions, states –
and developing states in particular – often lack, again, the human and financial
resources to effectively superintend what are often voluminous international
environmental commitments.52 Even where commitments are not
overwhelming, a lack of environmental expertise and management skills may
still make implementation difficult.53 As a result, states challenged by capacity
have been found to limit their ratification to “general declaratory instruments
not involving active participation [or] operational aspects” of technical
implementation.54
Because subject-matter varies greatly across environmental treaties,
monitoring and reporting requirements demand a significant range of

International Environmental Agreements as a Means for Dispute Prevention – The Role of

“International Institutions”‟, vol. 5, Non-State Actors and International Law 2005, pp. 1-19.

50Alexandre Kiss, „Reporting Obligations and Assessment of Reports‟, in Ulrich Beyerlin, Peter-
Tobias Stoll & Rüdiger Wolfrum, eds, Ensuring Compliance with Multilateral Environmental Agreements: A
Dialogue Between Practitioners and Academia, The Netherlands: Martinus Nijhoff, 2006, p. 245; See
generally Robin R. Churchill & Geir Ulfstein, „Autonomous Institutional Arrangements in Multilateral
Environmental Agreements: A Little-Noticed Phenomenon in International Law‟, American Journal of
International Law, vol. 94, 2000, pp. 623-659. Environmental monitoring and reporting obligations
suffer some of the same problems of overlap and duplication found in the field of human rights. See
Eric Tistounet, „The Problem of Overlapping Among Different Treaty Bodies‟, in Philip Alston &
James Crawford, eds, The Future of UN Human Rights Treaty Monitoring, Cambridge, UK: Cambridge
Univ. Press, 2000, p. 383; Elizabeth Evatt, „ Ensuring Effective Supervisory Procedures: The Need
for Resources, ibid., p. 461; Markus Schmidt, „Servicing and Financing Human Rights Supervisory
Bodies‟, ibid., p. 481.

51 Gerhard Loibl, „Reporting and Information Systems in International Environmental Agreements as

a Means for Dispute Prevention – The Role of “International Institutions”‟, vol. 5, Non-State Actors
and International Law 2005, pp. 13, 15-16.

52 Heike Mainhardt, „Capacity-Building Strategies in Support of Multilateral Environmental

Agreements‟ in Lawrence E. Suskind, William Moomaw, Kevin Gallagher & Elisabeth Corell, eds,
Reforming the International Enviornmental Treaty-Making System, Cambridge, MA: PON Books, 2001, p.
183.

53 Ibid; Marc A. Levy, Robert O. Keohane & Peter M. Haas, „Improving the Effectiveness of

International Environmental Insitutions‟, in Peter M. Haas, Robert O. Keohane & Marc A. Levy, eds.,
Institutions for Earth: Sources of Effective International Environmental Protection, Cambridge, MA: MIT Press,
pp. 404-408.

54Peter Sand, ed., The Effectiveness of International Environmental Agreements, Cambridge: Grotius
Publications Ltd., 1992, p. 11.

Electronic copy available at: https://ssrn.com/abstract=1988579

_______________________________________________________________________________
Anton TREATY CONGESTION Page 14

technology and expertise.55 For instance, monitoring and reporting

requirements can range from gathering and interpreting complex statistical
details on production, imports, and exports under the Montreal Protocol on
Substances that Deplete the Ozone Layer56 and the Convention on Persistent
Organic Pollutants57 to accounting for all aspects of transboundary trade and
disposal of hazardous wastes, including information on the grant of permits
(including criteria) under the Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes.58
As an instructor for the United Nations Environment Programme in
the mid-1990s in a course run for high-level developing country diplomats and
bureaucrats at the University of Adelaide, one of the most frequent concerns I
heard raised in relation to implementation and compliance was a lack of
human and administrative resources and expertise. Indeed, one participant
commented that he was the only individual in his government charged with
environmental administrative responsibility – for both international and
municipal law! Understandably, it was impossible for him to be effective. In
such circumstances, it is certain that our institutions need to be designed
(and/or redesigned) to assist in upgrading capacity59 and to increase
efficiencies in international administration, coordination and integration across
environmental regimes.60

D. Addressing the Capacity Challenge

1. Building Capacity

Capacity-building measures are used as positive incentives to promote

participation in international environmental regimes and to assist over-
burdened, resource poor states in complying with and implementing

55See e.g., Patricia Birnie, Alan Boyle & Catherine Redgwell, International Law & the Environment, pp.
242-243; Philippe Sands, Principles of International Environmental Law, Cambridge: Cambridge Univ.
Press, 2003, 2d ed., pp.832-838.

56Art. 7, Montreal Protocol on Substances that Deplete the Ozone Layer, UNTS, vol. 1522, p. 3 (as
amended in 1990, 1992 and 1999).

57 Art. 15, Convention on Persistent Organic Pollutants, International Legal Materials, vol. 40, p. 532.

58Art. 13, Convention on the Control of Transboundary Movements of Hazardous Wastes, UNTS,
vol. 1673, p. 125.

59 Peter Sand, „Institution-building to Assist Compliance with International Environmental Law:

Perspectives‟, Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht, vol. 56, 1996, pp. 774-795.

Frank Biermann, „The Emerging Debate on the Need for a World Environment Organization: A
60

Commentary‟, Global Environmental Politics, vol. 1, 2001, pp. 45-55.

Electronic copy available at: https://ssrn.com/abstract=1988579

_______________________________________________________________________________
Anton TREATY CONGESTION Page 30

So long as this diffuse power operates within the basic framework of

international law, then diversity and difference can be healthy for international
law. Anne-Marie Slaughter writes about this diversity as a principle of
“legitimate difference”.

[L]egitimate difference is a principle that preserves diversity within a

framework of a specified degree of convergence. It enshrines
pluralism as a basis for, rather than a bar to, regulatory cooperation,
leaving open the possibility of further convergence . . ., but not
requiring it.132

In a world of treaty congestion accompanied by fragmentation, legal pluralism

offers the possibility of a development of international law to improve
conditions on Earth through interaction by a wide range of institutions
engaged in the international law enterprise. Legitimate differences and the
dialogue enabled by cross-fertilization in interpretation, application and
development of international law might even lead to better decisions133 and
strengthen compliance.134

IV. Conclusion

Treaty congestion has been a fact of modern international law for a

number of decades. As greater international cooperation is required to
address global problems, the need for more law to implement cooperation
accompanies. The response to fragmentation and conflict arising from the
proliferation of norms that accompanies environmental treaty congestion has
ranged from that of the despairingly alarmist to the overly optimistic.135
Between these extremes it is necessary to accept that a realistic appraisal must
take account of the current limitations imposed by the international legal
system. While improving governance structures and coordination functions
may help improve the situation, those with strong environmental values must
be on guard and limit to the extent possible the environmentally unfavorable
interpretation and application of competing norms. It is likewise important to
attempt to ensure that the institutional treatment of environmental norms first
of all takes place, and secondly, adheres to the fundamental purpose and

132 Anne-Marine Slaughter, A New World Order, Princeton, NJ: Princeton Univ. Press, 2004, p. 249.

133 William Thomas Worster, „Competition and Comity in the Fragmentation of International Law, p.

141
134
William Burke-White, ‘International Legal Pluralism’, Michigan Journal of International Law,
2004, vol. 25, p. 963, 978-979.
135 See Tim Stephens, International Courts and Environmental Protection, pp. 305-307.

Electronic copy available at: https://ssrn.com/abstract=1988579

_______________________________________________________________________________
Anton TREATY CONGESTION Page 31

objective of the norms. It is inevitable that there will be failures and

disappointments, but increased coordination across normative boundaries and
enhanced capacity building will minimise them.

Electronic copy available at: https://ssrn.com/abstract=1988579