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in the Area of International Environmental Law
by Professor David Caron
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General:
Let us assume that you have before you a particular treaty on international
environmental law, and you seek to understand what it attempts to do and how
well it accomplishes those objectives. Where does one begin? Is there some
general framework for approaching a question like this upon which comparative
analysis could be built and lessons be drawn? Outlining such an approach is the
purpose of the following comments and assignment. Although in this particular
assignment you are to investigate the treaty system addressing depletion of
stratospheric ozone, the analysis is a start for approaching other environmental
regimes. Before starting this assignment you may wish to read the text in
chapter 10 describing the drafting of the Vienna Convention, the Montreal
Protocol and later amendments.
A. The Status of the Treaty:
A treaty can be thought of as a contract, although one needs to be careful of
taking this analogy too far. Like a contract, a treaty creates obligations only
for the parties to it. The issue of the power of the agent to accept obligations
on behalf of the principal is present more in the treaty context than in the
contract context. The result is that one must distinguish between signing a
treaty (acceptance by the agent of a document as the result of a conference) and
ratifying the treaty (acceptance by the principal of the obligations in the
document). Like a contract, one must also ask if the document is effective. In
the case of a treaty, we ask if the treaty has "come into force." To better
understand these issues one should go to the "closing clauses," which
appropriately are usually found at the end of the treaty. In these clauses you
will find one dealing with the coming into force of the agreement.
1. Question Find the coming into force provision in the various ozone
agreements. What considerations are implicit in the formulation used?
Note that in many treaties there is a desire for collective rather than
unilateral efforts, perhaps to avoid free riders, perhaps to keep even levels of
regulation in a competitive marketplace. An example of the latter motive would
be treaties regulating vessel design and operation as relates to the operational
discharge of oil at sea. In those treaties, the coming into force is tied to a
certain number of ratifications representing a certain percentage of the world's
tonnage.
2. Question If certain parties were to withdraw from the ozone
agreements bringing them below the coming into force level, what result?
How would you find out the status of a treaty? First, you could look in
Treaties in Force to Which the United States is a Party. This is a
publication released in the spring of each year by the State Department. (Many
libraries have this.) Second, for up-to-date information you could call the
State Department's treaty office at (202) 647-1345. Third, if you want the most
authoritative information (or if the U.S. is not a party), then call the
depository (of ratifications) designated in another of the closing clauses.
B. The Scope and Function of the Treaty:
Treaties addressing international environmental law, like domestic statutes,
have tended to be problem oriented. It is therefore valuable at the outset to
consider what problem is addressed by the particular treaty you are examining
and whether the scope of the treaty was designed so as to adequately address the
problem.
1. Question What environmental problem(s) is addressed by the treaty?
For example, the treaty may address pollution of the high seas by oil, the
presence of debris in outer space, or the risks of using nuclear power for
energy generation.
2. Question Is the problem a chronic consequence of an activity or is
it a risk associated with an activity?
For example, is the problem increased salinity of the Rhine due to potash
mining in the Alsace (chronic) or is the problem the risk of a catastrophic
accident at a nuclear power plant (accident). (In my terms, the risk relates to
what would be the known consequences of an accident, rather than chronic
consequences not clearly related to a permissible activity, e.g. acid rain.)
3. Question What aspect(s) of the problem does the treaty address?
In my experience, treaties not only address a specific problem, they also
usually address only one or two of four possible functional aspects of tackling
the problem. These four aspects are (1) organization/cooperation building, (2)
prevention, (3) response/adaptation, or (4) compensation/restoration. How these
aspects are emphasized seems to me to be related to whether the problem is
chronic or accidental. (See Table I.)
4. Question What is the geographic scope of the problem? Is it in
scientific terms essentially bilateral, regional or global?
5. Question What is the geographic coverage of the treaty in theory?
Note in the final clauses there will be a statement as to what states may
possibly join the treaty? Is the geographic scope of the treaty appropriate
given the geographic scope of the problem? If not appropriate, are there reasons
you can discern why this might be the case?
6. Question Even if the treaty in theory may correspond in geographic
scope to the geographic range of the problem and the treaty may be in force,
does the coverage in fact of the treaty adequately address the problem?
In particular we must recognize that, as in the case of operational discharge
of oil at sea, although the problem is global and any state may join the treaty,
as a practical matter certain states may be particularly important to the
efficacy of the treaty. The coming into force clause could require membership by
the key states, but often is not so tightly drafted. One's task thus requires
more knowledge of the problem the realities of who contributes to it and perhaps
who might. One will need to find out which states are party to the treaty and
whether any reservations have been made. (Again there may be a closing clause
that allows states ti become a party yet not accept certain obligations in the
agreement (i.e. the reservation)).
C. The Organizations Created By the Treaty:
The Convention, Protocol and Amendments all create structures. In confronting
international organizations/structures, three questions should be asked:
(1) What are the tasks of the bodies created?,
(2) What are the powers of the bodies to carry out their tasks, e.g. can it
only make recommendations, or can it make binding decisions?, and
(3) How are decisions taken by the bodies and what does that tell us about
the politics of the decision and the relative power of the parties involved?
As will be apparent, these questions often are related. For example, the U.N.
General Assembly gives a vote to every state, but the G.A. can only make
recommendations and can not even do that if the Security Council is seized of
the matter.
Question Outline the structures created in the ozone area with
reference to the above three questions
D. The Norms/Obligations Contained in the Treaty:
1. Question Identify the primary obligations to reduce emissions. Are
the norms contextual i.e., does the norm's content depend on factual
circumstances? If they are, on what circumstances do they turn? What group of
states do such circumstances define? What ethical, political and economic
considerations are addressed/implicated in the context involved?
For example, one clear contextual circumstance is the economic development of
the state involved.
E. The Law-Making Process:
A treaty is a device for the making of law internationally. It may have
within it a process for the further making of law, i.e. the treaty not only
makes law but creates a process that can continue to make law. The clearest and
most common examples of this are provision for 0amendment, withdrawal by a party
(i.e. reduction in the scope of whom the treaty applies to), and termination of
the law generally. (Again these are in the closing clauses!) In the case of
ozone, the law-making process created is relatively complicated.
1. Question Outline the usual process of amendment, withdrawal and
termination.
2. Question Outline the steps that are envisioned/taken in
anticipation of adjustments and amendments. How does the law-making process deal
with the fact that the parties are constantly learning more about the science of
the problem and technical aspects of the response strategies? How is knowledge
legitimized and learning institutionalized?
3. Question Describe the difference between amendment and
adjustment. What would a party have to do to avoid an amendment? An adjustment?
What does this tell us about potential complications regarding the scope of this
law-making effort?
4. Question Finally, an important part of any law-making process is
provision for resolution of textual uncertainties, i.e. authorization
interpretation - how is this accomplished is the case of ozone?
F. Encouraging Membership in the Regime - Carrots and Sticks:
1. Question One way to encourage membership is to recognize the
special circumstances/needs of various groups of states. How do the ozone
agreements do this?
2. Question Another way to encourage benefits is to make sure a state
does not benefit by staying outside. How do the ozone agreements do this?
3. Question Finally, membership may be encouraged by sanctioning those
who remain outside. How do the ozone agreements do this?
G. Monitoring Compliance with and Enforcement of Obligations:
Of course it doesn't help if states become members but merely avoid their
obligations.
1. Question How do the ozone agreements provide for monitoring of
compliance?
2. Question If lack of compliance is evident, what mechanisms for
addressing violations exist? How can disputes between parties be resolved? How
can decisions be made effective?
