Energy, food, and water crises; climate disruption; declining fisheries; increasing ocean acidification; emerging diseases; and increasing antibiotic resistance are examples of serious, intertwined global-scale challenges spawned by the accelerating scale of human activity. They are outpacing the development of institutions to deal with them and their many interactive effects. The core of the problem is inducing cooperation in situations where individuals and nations will collectively gain if all cooperate, but each faces the temptation to take a free ride on the cooperation of others. The nation-state achieves cooperation by the exercise of sovereign power within its boundaries. The difficulty to date is that transnational institutions provide, at best, only partial solutions, and implementation of even these solutions can be undermined by international competition and recalcitrance.
…Of special importance are rules that apply universally, such as the peremptory, or jus cogens, norms proscribing activities like genocide or torture. Failure to stop genocide in Rwanda spurred efforts to establish a new “responsibility to protect” humanitarian norm (12). As threats to sustainability increase, norms for behavior toward the global environment are also likely to become part of the jus cogens set.
The responsibility to protect rests in the first instance with the state having sovereignty over its population. Only in the event that the state is unable or unwilling to protect its people are other states obligated to intervene. The challenge is not just to declare the principle but to ensure its acceptance and enforcement. Acceptance is needed for legitimacy, and enforcement will depend on whether states are willing to make the necessary sacrifices. If the responsibility to protect is to apply to the environment as well, these same challenges will need to be overcome. We use three examples to illustrate how institutional development might proceed.
Climate change. International climate agreements must be designed to align national and global interests and curb free-riding. Borrowing from the WTO architecture, the linkage between trade and the environment could be incorporated within a new climate treaty to enforce emission limits for trade-sensitive sectors. New global standards could establish a climate-friendly framework with supporting payments, e.g., for technology transfer, to encourage developing country participation. In this context, trade restrictions applied to non-participants would be legitimate and credible, because participating parties would not want nonparties to have trade advantages.
Coevolution of institutions offers a pathway to further progress. Recently, the Montreal Protocol strengthened its controls on hydrochlorofluorocarbons (HCFCs), manufacture of which produces hydrofluorocarbons (HFCs) as a by-product. HFCs do not affect ozone and are not controlled under the Montreal Protocol. However, they are greenhouse gases (GHGs), controlled under the Kyoto Protocol. The Montreal Protocol should now either be amended to control HFCs directly or else a new agreement, styled after the Montreal Protocol, should be developed under the Framework Convention to control HFCs.
High-seas fisheries. The Code of Conduct for Responsible Fisheries, which was adopted by the U.N. Food and Agriculture Organization in 1995 was a positive step, but because adherence is voluntary, it has had little effect. Another approach would be to develop a norm, akin to the responsibility to protect (12), requiring all states responsible for managing a fishery to intercede when a state fails to fulfill its obligations. Credible enforcement is a challenge, but efforts by major powers to enforce a U.N. General Assembly ban on large-scale drift-net fishing offers hope that an emerging norm can be enforced (13).
Drug resistance. Addressing drug resistance demands global standards. The International Health Regulations (IHRs) are an international legal instrument that is binding on 194 countries, including all the member states of the World Health Organization. It currently establishes minimum standards for infectious disease surveillance, but could be amended to promote standards for drug use. For example, monotherapy treatments for malaria are cheaper but more prone to encourage resistance in mosquitoes than combination therapy drugs. Their use should be limited in favor of the more expensive combination therapy drugs. One approach to global action would be an amendment to the IHRs that obligated all member countries to collective action to promote combination therapies, supported by global subsidies, and to discourage, or even prohibit, monotherapies (14).