Analyzing and Understanding Treaties
in the Area of International Environmental Law

by Professor David Caron

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?