Managing Institutional Complexity: Regime Interplay and Global Environmental Change

4. Savings Clauses and the “Chilling Effect”: Regime Interplay as Constraints on International Governance

4 Savings Clauses and the “Chilling Effect” Regime Interplay as Constraints on International Governance Mark Axelrod The situations that environmental treaties address are necessarily linked to other policy fields, such as trade and human rights. Recent research suggests that environmental treaties are weakened by multilateral trade rules that address related issues (Conca 2000; Eckersley 2004; Stilwell and Tuerk 1999; see also Gehring in this volume). As these studies argue, the “chilling effect” prevents nations from establishing robust environmental treaties out of concern for potential conflicts with international trade rules. Unfortunately, accounts of this relationship have been limited to examples in which environmental cooperation does seem to have been chilled. To determine whether environmental agreements are particularly susceptible to these constraints, environmental treaties should be compared with nonenvironmental treaties negotiated under similar conditions . It is equally important to explore the conditions under which new agreements take the opposite approach, overriding existing international law. This chapter explores the chilling effect, showing that it does have an impact on international environmental negotiations. Although environmental agreements demonstrate concern for existing rules at a rate similar to agreements in other policy fields, they are more likely than others to consider existing international law in other policy fields. In accordance with the chilling effect hypothesis, existing international law (in other policy fields) therefore is an important factor limiting the scope of international environmental agreements. This effect points to the need for analysts and activists to better understand the nature of institutional interplay and the conditions under which regimes influence each other. As discussed in this chapter, established techniques of interplay management in international law tend to be biased toward preserving the status quo and against institutional change. Although new institutions continue to emerge, negotiators have long employed legal means to limit 88 Mark Axelrod the scope of new agreements and their effects on existing regimes. Using an original data set, I find support for the claim that this practice has not only helped avoid regime conflicts but has also led to weakened environmental regimes in particular. This status quo bias of international law may contribute to the relatively stable division of labor between different international institutions, once established (see Stokke and Oberthür in this volume). The next section reviews existing research on institutional interaction, focusing on the possibility that these interactions affect negotiated outcomes . It explores various types of hierarchies among international regimes and further discusses the chilling effect hypothesis. The subsequent sections explain a series of empirical tests used to assess that claim and offer results from this analysis. The concluding section discusses the implications of these findings. Institutional Interaction and the Chilling Effect Institutional Linkages Rather than looking at international institutions as completely separate entities, recent scholarship examines interactions between international regimes. Raustiala and Victor (2004), for example, examine “regime complexes” rather than individual agreements because they recognize that negotiations take place in the shadow of existing law. Of course, interaction does not occur only between formal institutions ; it also results from the broader relationship between different policy fields in international politics. For instance, the notion of sustainable development inherently touches on trade, agriculture, environmental protection, and human rights, among other concerns. In a world of overlapping issues, the traditionally separate legal approaches to these concerns cannot help but overlap as well. The study of institutional interactions is still in its infancy. However, this new body of research has begun to explore the effects of multiple institutions on behavioral outcomes, noting that the existence of more than one regime may complicate prospects for enforcement. Young (2002), for instance, suggests that “horizontal interplay” between institutions has resulted in both conflicting and symbiotic results. Helfer (2004) describes how parties attempt to circumvent undesirable rules by moving to a different negotiating forum. Oberthür and Gehring (2006a) explain that interactions can take place at any stage of the process, from negotiation to implementation, Savings Clauses and the “Chilling Effect” 89 and may be positive or negative in nature. Rules from one regime may enhance the efforts made in another institution or they may conflict, as will be explored further in the following section. By providing the important insight that interactions should be analyzed on an individual basis, with one institution serving as the “source” and the other as “target” of the source’s influence, these authors advance the empirical study of institutional overlap and provide a means for...