Environmental Cooperation in the (Partially) Disaggregated State: Lessons from the Security and Prosperity Partnership of North America
Craik, Neil, DiMento, Joseph, Chicago Journal of International Law
On August 20 and 21, 2007, Canadian Prime Minister Stephen Harper, US President George W. Bush, and Mexican President Felipe Calderon met in Montebello, Quebec to discuss the security and Prosperity Partnership of North America ("SPP"), a trilateral initiative that has as its objective enhanced regulatory cooperation between the three North American states in order to improve continental security and regional competitiveness. Despite being described in prosaic terms by government officials and industry supporters as a primarily technical exercise, the SPP has attracted trenchant criticism across the political spectrum. The SPP has been described variously as "integration by stealth,"1 the creation of a North American "European Union with none of the safeguards on the environment and social rights,"2 and (most floridly) as a "[u]nion that will bury America under more than 100 million, mostly poor Mexicans, and tens of millions of Canadians, used to their lavish social welfare benefits and socialized medicine."3 Still others have dismissed the SPP altogether as a disappointing "much ado about nothing," noting that it is little more than a grocery list of bureaucratic minutiae that ignores the pressing trade and social imperatives affecting the region.4 And so opens another front in the fight over globalization.
From a governance perspective, the SPP appears to adopt on a grand scale what international legal and international relations scholars have identified as a trend towards international regulation through informal arrangements negotiated directly by domestic agencies with their foreign counterparts.5 In this regard, Anne-Marie Slaughter has written extensively about a "new world order" based on overlapping networks of regulators who seek to coordinate transnational activity and achieve common goals through direct agency-to-agency interactions.6 In some cases, the form of cooperation is quite minimal, such as sharing information on best regulatory practices or extending notice of regulatory activities to regulators in potentially impacted jurisdictions. However, informal cooperation efforts may evolve into more substantively prescriptive arrangements, such as regulatory harmonization, mutual recognition arrangements, and cooperative enforcement mechanisms. What distinguishes these governance structures from traditional forms of international cooperation is that network arrangements are not negotiated through central agencies such as foreign affairs departments, nor do they revolve around a formally binding treaty. Instead, cooperating regulators directly interact with one another with a view to developing shared guidelines or "frameworks for cooperation" to institutionalize their cooperative efforts.7 To use Professor Slaughter's phrase, the state as a relevant international actor is increasingly "disaggregating into its separate, functionally distinct parts," as opposed to operating as a single, indivisible unit.8
Cooperation among financial regulators has been the most active area for transgovernmental networks, with quite evolved regulatory networks in areas such as banking, competition law, insurance, and securities regulation.9 Environmental regulation is also emerging as an issue area where networks are being utilized to address transboundary and global environmental issues, as well as addressing environmental nontariff barriers to trade, although to date the regulatory achievements of environmental networks are less developed than those found in the financial area.10 The SPP marks a further, and in our view, important, development in the use of transgovernmental networks because under the SPP, the executive branches of Canada, the United States, and Mexico deliberately turn to transgovernmental networks as a governance strategy across multiple issue areas. The SPP, which proposes an ambitious agenda of security, economic, energy, and environmental initiatives, identifies areas for increased cooperation and charges a series of working groups that are principally made up of federal government officials from the three partner countries to negotiate and to implement cooperative solutions. …