EFFECTIVENESS OF INTERNATIONAL TREATIES
Lakshman Guruswamy, Ph.D.
Nicholas Doman Professor of International Environmental Law
University of Colorado at Boulder
Introduction
Over the last fifty years international law has become a dynamic instrumentalist social force addressing a wide range of socioeconomic, sociopolitical and biophysical challenges through bilateral, regional, and global treaties. International law now includes a formidable corpus of treaties dealing,for example, with labor, human rights, health, intellectual property, taxation, the environment and energy. Many of these treaties establish articulated and implied goals and objectives, and some of them create new institutions. Moreover, the growing challenges presented by energy and environmental problemsnecessitates new treaty arrangements that will change the way in which nations behave.
This article addresses the effectiveness of international environmental and energy (E/E) treaties from an instrumentalist and pragmatic standpoint. Since effectiveness and ineffectiveness or success and failure of a treaty may be predicated on differing and perhaps contradictory criteria, it may be useful to delineate the core predicates on which this article assesses success or failure. But before doing so it is worth mentioning that the any new E/E instrumentalist treaties must be based on an understanding of the reasons for the success of healthy existing treaties, as well as the pathologies of failure.[1] In trying to create new treaties dealing with sustainable energy, the experience derived from 1800 energy treaties already in force must be taken into account. This article is based on an impressionistic view of the lessons to be learned from past treaties, and will usethe artifice of twofictional treaties: treaty “a” and treaty “b”,
Treaty “a” is a weak treaty that does not correctly diagnose the challenge it seeks to address. One part contains only shallow commitments,[2]coupled with inadequate goals. It reiterates whatits parties would have done anyway, and requires only minimal or insignificant behavioral changes. It does not seek to remedy the causes of the challenge it confronts. By contrast, another part of the treatywrongly diagnoses a problem but prescribes erroneous even onerous goals based on its wrong diagnosis. It embodies inadequate methods of implementation. Neither parts of treaty “a” result in a positive impact on the problem, or in needed behavioral changes.
Treaty “b” is a strong treaty based on the correct diagnosis of the problem, and contains deep and substantive commitments and challenging goals addressing the causes of the problem it seeks to address. It incorporates methodsof implementation that will facilitate the effective realization of its goals, results in behavioral changes, and has a positive impact on the problem it seeks to address.
These two apocryphal treaties will be referenced to illustrate the predicates or indicia by which E/E treaties will be judged. The first predicate relates to the correct identification and diagnosis of the problem or issue that an E/E treaty purports to address. Treaty “b” is based on a valid diagnosis but Treaty “a” suffers from the lack of one. Second, following upon theirdiagnosis treaties should embody prescriptions aimed at the core of the problem dealing with the sources of the malady. Successful treaties should not skirt around the challenge oraddress symptoms rather than causes. Treaty “b” canvases the causes of the problem it confronted while treaty “a” does not.
Third, having accuratelyidentified the sources of a problem, the remedies prescribedby a instrumentalist treaty almost invariably requires behavioral changes. Therefore, treaties should incorporate methods of implementation and compliance crafted to secure the effective attainment of their goals. This is what is done by treaty “b”
Fourth, the remedies and methods employed by a treaty should have a demonstrably beneficial impact on the problem and help move the treaty toward the practical attainment of its goals and objectives.
Fifth, In order to secure effectivebehavioral changes that have a favorable impact on a problem functional, goal-oriented treaties like treaty “b” should command and induce compliance through compliance securing architecture, and methods that both effectively and beneficially impact the problems addressed by them.[3]
This paper is confined to the third, fourth, and fifth factors enumerated, and builds upon and further develops a seam of international teaching and writing on compliance, effectiveness and impact of E/E treaties.[4]In general, even the limited inquiry about compliance with international law dealing with biophysical issues like the environment or energy has been normative and theoretical. It has been confined to two questions:one, has international law been implemented by being incorporated into domestic law through legislative, judicial or executive action; andtwo, to what extent have countries complied with a treaty by adhering to its provisions and the implementing machinery established by it.[5]
Judging Effectiveness
It is time to examine the accuracy of the old chestnut that most nations conform to international law most of the time.[6] While this impressionistic claim has been repeated in recent times[7] and may be correct, the evidence for such an assertion today simply does not exist in the energy and environmental areas. This is particularly the case because there is a general absence of actual empirical evidence proving any such claims.
Ian Brownlie, who considers evidence of effectiveness to be extra-legal, asserts that “the utility and effectiveness of a legal order must be determined ultimately by extra-legal criteria.”[8] Benedict Kingsbury points out that we do not have systematic studies to verify the accuracy of Henkin’s venerable assertion that most of the time nations conform to international law. Moreover, he states that the dearth of good empirical studies of the correspondence between state behavior and international rules is a serious obstacle to understanding and evaluating the international legal system.[9] This lack of serious empirical research pertains to compliance methods as well as to effectiveness and impacts. While the effectiveness of international regimes is an established field of study, the quality of the empirical evidence relied upon in the E/E areas is sparse at best and dubious at worst.[10]
The success of a treaty, calls to be judged on empirical criteria that extend beyond formal implementation, compliance, and theoretical adherence to legal obligations.[11] The success of a treaty will depend more poignantly on the extent to which it has affected state conduct in moving a treaty toward its goals and objectives. This articlewill focus on the empirical evaluation of effectiveness and impact.
Exercisingsemantic license this article defines effectiveness as the extent to which the goals of a treaty have been achieved. Shallow commitments[12] and weak obligations, of the kind referred to in treaty “a” could nevertheless lead to effective compliance. This is soeven in caseswhere parties to treaty similar to “a” comply with its goals for reasons of their own that are independent of the treaty. But while treaty similar to treaty “a” may be effective it not have a significant impact on the underlying issue.[13] It is important, therefore, to understand a treaty such as treaty “a” not only in terms of its effectiveness in achieving stated goals, butin light of its impactas a satisfactory response to the challenge addressed, and the degree to which it changes state behavior. Impact is this context refers to the positive extent to which a treaty influences and affects the problem it is addressing.
In dealing with effectiveness and impacts it is important to identify the goals of a treaty, and tocomparesuch goals with the results produced. It is also necessary to inquire about the depth of these goals and the extent to which they did or did not remedy the problem being addressed. Where the results,garnered from empirical data and evidence,do not match goals or point to the inadequacy of those goals,attention turns to the reasons for such shortfalls. It is possible for shallow commitments and modest goals to reflect what countries are already doing rather than what is needed to address the problem at hand. Such an inquiry must traverse institutions, compliance methods, enforcement, andthe socioeconomic, political or cultural context that might explain the gaps between the goals of a treaty and the inability to meet them, or the meagerness of the goals and the ease with which they were met.
International institutions of differing types, created by treaties to serve their goals, as well as international organizations in general,[14] have been the subject of research and teaching. By contrast, methods for ensuring compliance, although listed or catalogued, have not been analyzed and examined from the point of view of their comparative utility, effectiveness or impacts, despite the fact that compliance may depend on those methods. The methods for ensuring compliance include various processes, implementing devices, and different techniques employing distributive and resource transferring mechanisms, grievance remediation (enforcement) machinery, private arrangements, and regulatory frameworks. Of the few methods that have been examined,[15] there has only been modest investigation and analysis of the utility of various compliancemethods[16] and compliance devices used by these international instruments to achieve their goals. When assessing how methods have achieved goals, economic efficiency cannot be ignored. For example, it is perfectly possible for an expensive method to achieve a modest goal when it could have been done by another at less cost. Overall, it is important to assess and evaluate the extent to which these varying methods have demonstrated economic efficiency in achieving their treaty goals because future instrumentalist treaties will need to avoid failures and embrace the successes of existing treaties
While there is a substantial body of literature on “effectiveness,”[17] theseotherwise theoretically illuminating contributions do not include any authoritative conclusions based on comprehensive empirical examination of compliance, effectiveness or impacts of E/E agreements.[18] This is primarily because of the absence of comprehensive and organized empirical evidence or data. The impressive study by Brown and Jacobson was based on only five treaties.[19]
The existence of an empirically-based research and teaching lacunae relating to methods, effectiveness and impacts has created a serious problem because the rationale behind functional and instrumental legal treaties is to change behavior. The relative absence of writing and teaching on the extent to which they have succeeded in doing so is an omission that should be remedied.
This paper will describe and discuss a two-part project that is seeking to advance sustainable energy solutions to the energy crisis confronting the world. The goals of the exercise are unabashedly functional, rather than theoretical. They are to identify all energy treaties in force along with other non-legal instruments including partnerships, declarations, commitments, pledges and other decisions in the international domain that deal with energy. They will be analyzed with a view to reaching conclusions about the kind of treaties and other instruments that most effectively and efficiently promote sustainable energy.
The first phase of this project,has identified some1,800 energy treaties dealing with different aspects of energy, that incorporatea variety of goals and methods. The second phase of this project will track the implementation, compliance, effectiveness and impact of these treaties—as well as identify and monitor compliance, effectiveness and impacts vis-à-vis such non-legal instruments as partnerships, declarations, commitments, and pledges. When completed, this project will erase the data deficit regarding energy treaties,situate our understanding of these treaties within a broader instrumentalist framework, and hopefully offer salient insights about the compliance methods, effectiveness, and impacts oftreaties.
ISEA/IPECC: An Empirical International Energy Law Research Project
Phase I: International Sustainable Energy Assessment (ISEA)
The insecurity created by the current hydrocarbon economy and the need to develop more secure forms of energy are internationally recognized on a widespread basis. Traditionally, national security has been associated with armed aggression and the ability to thwart military invasions or subversion. More contemporary concepts of security include critical threats to vital national and international support systems such as the economy, energy and the environment. In this context, the increasing reliance on hydrocarbons has created energy, environmental and economic insecurity.
However, the magnitude of the challenges arising in moving to a more sustainable global energy regime cannot be solved by any one nation and must entail international engagement and cooperation. The International Sustainable Energy Assessment (ISEA)is designed to facilitate such cooperation and engagement by enhancing international understanding of optimal ways to utilize and configure international energy agreements, in order to facilitate the development of renewable energy technologies and technologies and practices relevant to energy efficiency and energy conservation.
ISEA has created a unique database containing fulltext and analysis of approximately 1,800 international energy treaties from all 192 countries in the world. The ISEA database covers a wide array of energy subjects ranging from energy markets and electricity infrastructure to renewable energy, energy efficiency, and hydrogen. By providing a detailed empirical survey and analysis of in-force energy treaties, ISEA constitutes the first critical step towards remedying the empirical research and teaching lacunae related to the compliance, effectiveness and impacts of international energy instruments.
The references to “instruments” are to a genus that includes a variety of multilateral and bilateral agreements, pacts, treaties, protocols and conventions dealing inter alia with science and technology, trade and investment, research and development, technology transfer, and sustainable development.[20] As currently envisioned, the principal objective of these instruments will be to facilitate the development of primary sources of energy—i.e., energy in its naturally occurring form—as well as energy conversion, transmissionand end-use distribution.[21]
ISEA builds upon the research frameworks already delineated,[22] which seek to foster the development of low greenhouse gas (GHG) global energy systems by facilitating technology research. The ultimate goal of ISEA/IPECC is to advance the negotiation of a comprehensive framework treaty on energy that can galvanize all nations and peoples, including developing countries like China, India and Brazil, to commit to renewable and sustainable energy targets. Such a treaty would be analogous to the Kyoto Protocol that placed numerical quantitative restrictions on carbon emissions.
While a comprehensive treaty remains the ultimate goal, the immediate focus of the ISEA phase is the creation of an empirical database. Providing such data does not allow ISEA to presume to legislate the scope, structure, specific subject matter, final terms or norms of proposed new energy instruments. Instead, ISEA is intended as a starting point from which to begin the arduous interdisciplinary and collaborative work necessary to negotiate a spectrum of instrumental treaties ranging from bilateral or regional science and technology agreements, to trade and investment treaties, to more ambitious regional treaties and overarching global conventions or protocols.
During the ISEA phase of this project, EESI researchers were charged with the task of identifying and analyzing every international energy agreement in the world currently in force—including both bilateral and multilateral treaties. This obviously daunting task required the creation of a uniform analytical structure that would render the process of inputting information into the system straightforward and efficient, ensure that essential information is captured (and conversely, that the lack of such information is also captured), and facilitate and structure the comparative analysis of information within the system. To that end, an analytical structure consisting of 29 fields was devised. All 1,800 agreements currently within the ISEA system were analyzed pursuant to this uniform structure. The analytical structure is bifurcated into two primary divisions: (1) key coordinates—containing such information as parties to the treaty, date entered into force, and subject matter focus; and (2) substantive obligations, such as fundamental obligations, financial commitments, and accountability mechanisms, including information on and analysis of implementation, compliance, effectiveness and impact (with much of the information in these latter four categories to come from the IPECC phase of the project).
ISEA ANALYTICAL STRUCTURE / TAXONOMY OF OBLIGATIONS
Key coordinates fields include: (1) treaty name; (2) external reference ID; (3) date signed; (4) date entered into force; (5) signatories; (6) parties to the treaty; (7) legal type—a distinction internal to U.S. law; (8) termination / renewal clause; (9) bilateral or multilateral; (10) subject matter; (11) amendments; (12) extensions; (13) related agreements; (14) parent agreement; (15) subsidiary agreements; (16); international bodies involved; (17) official contacts; and (18) the full text of the treaty.
The taxonomy devised for substantive obligations identifies the types of obligations that call for both implementation and compliance. The fields that constitute this structure are as follows: (1) goals / objectives; (2) fundamental principles; (3) financial obligations; (4) institution-related obligations; (5) project-related obligations; (6) interdependent obligations; (7) dispute resolution mechanisms; (8) implementing agency and methods; (9) accountability / reporting mechanism; (10) implementation and compliance; and (11) effectiveness and impact.
In addition to the two-dimensional view of the field structure denoted above, there are numerous fields within this structure that contain subcategories of analysis, which are dynamically interrelated —thus lending the system a degree of further analytical depth and internal coherence. For instance, with respect to “subject matter focus” the system currently contains treaties covering approximately 45energy-related subject areas. Eight of these subject areas are deemed primary or top-level categories (see figure 1 below).
P
Phase II: International Projects on Energy Commitments Compliance