International Environmental Agreements PDF

Environment and Statecra : The Strategy of Environmental Treaty-Making Scott Barrett https://doi.org/10.1093/0199286094.001.0001 Published: 2005 Online ISBN: 9780191602832 Print ISBN: 9780199286096 Search in this book Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 CHAPTER 6 International Environmental Agreements  Scott Barrett https://doi.org/10.1093/0199286094.003.0006 Pages 133–194 Published: October 2005 Abstract This chapter explains why international agreements have increasingly been used to address international cooperation problems. It outlines the process of treaty making, and explains how process can shape outcomes. It then details the key features of treaties, such as the minimum participation level, basic obligations, withdrawal, and the use of trade restrictions. The appendix provides a comprehensive listing of multilateral environmental treaties currently in force, with information on date of adoption and entry into force, membership, and provisions for trade restrictions and administration. Keywords: treaties, European Union directives, negotiation, process, tactics, leadership, ratification, implementation Subject: Economic Development and Growth, Environmental Economics Collection: Oxford Scholarship Online We are every day, in one sense, accepting limitations upon our complete freedom of action…We have more than 4,300 treaties and international agreements, two-thirds of which have been entered into in the past 25 years… Each one of which at least limits our freedom of action. We exercise our sovereignty 1 going into these agreements. Secretary of State Dean Rusk (1965) 6.1. INTRODUCTION Cooperative arrangements for managing shared environmental resources are typically codi ed in international environmental agreements (IEAs), variously referred to as treaties, conventions, protocols, 2 covenants, compacts, agreements, charters, and acts. IEAs di er from custom in that they are negotiated, written down in black and white, and legally binding only on the countries that consent to be bound by 3 them. If custom o ers a general curative to transnational environmental problems, IEAs provide issue- speci c remedies. Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 International environmental agreements address almost every kind of transnational environmental issue. They establish regimes for conserving marine mammals, such as whales and seals; sh, like tuna and salmon; biodiversity; migratory birds; and particular species of wildlife like the polar bear and vicuna. They obligate countries to preserve unique ecosystems like the Serengeti and the Galapagos Islands, and sites of cultural heritage, including the Pyramids and Hadrian's Wall. IEAs coordinate policies for preventing the spread of pests like the Mediterranean fruit y and plant diseases like Dutch elm disease, and for controlling swarms of desert locusts, huge plagues of which can range over sixty or more countries. They impel countries to reduce pollution in regional and inland seas as well as in the high seas, by controlling run-o , setting emission standards, regulating tanker design, and establishing liability in the event of an oil spill. They create rules for managing Antarctica's mineral resources and marine life, including krill, whales, and penguins; they regulate civil nuclear power by requiring timely noti cation of a nuclear accident; they create organizations for managing shared river basins; and they establish common standards for p. 134 safeguarding workers from toxic substances, asbestos, and other forms of pollution. IEAs protect animals from unkind “industrial” farming practices and scienti c research, and they limit emissions of transboundary air pollutants and ozone-destroying chemicals. They promote the conservation of tropical forests, control or reverse land-use degradation (“deserti cation”), and regulate transboundary shipments of hazardous wastes and nuclear material. They ban nuclear weapons testing, and restrict the production and stockpiling of biological and chemical weapons. IEAs even regulate the use of outer space. This chapter explains how IEAs get negotiated, and how the process of treaty negotiation a ects treaty outcomes. It also examines a number of the important and common features of IEAs—features that the theory developed in subsequent chapters aims to explain. 6.2. ASCENDANCY OF THE ENVIRONMENTAL TREATY The appendix to this chapter lists the multilateral IEAs that are either in force today or that could enter into 4 force in the near future. At least to my knowledge, this is the most comprehensive list of environmental treaties available. Deciding which treaties to include and which to exclude is not obvious, however, and I make no claim to have gotten the classi cation right. The table excludes inland water navigation treaties, for example, and includes nuclear weapons test ban treaties, though a di erent arrangement could also be justi ed. The table leaves out “minor” protocols and amendments (footnotes to the table indicate the dates at which these 5 were adopted), though good arguments could be made for including these. The table also excludes treaties not intentionally designed to protect the environment but that have implications for environmental 6 protection. Indeed, I refer to a number of such treaties in the text of this book. Even ignoring these issues of classi cation, the table is incomplete. It lists treaties for which it was relatively easy (for me) to obtain data—treaties written in English (with only one or two exceptions) and, more often than not, deposited with a multilateral organization. Other treaties must have escaped my 7 search. Needless to say, the table will be out of date even before it is published. My aim in presenting the table is not to be complete or current. The purpose, rather, is to give a sense of the scale and scope of these instruments. Figure 6.1 uses the information from the table to show how use of the treaty instrument has increased over p. 135 time. It charts the cumulative total of such IEAs, sorted by their date of adoption. Thus, the 1911 North Paci c Fur Seal Treaty, discussed in Chapter 2, is excluded from Figure 6.1 (and from the table), since it is no Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 longer in force. Similarly, though the rst whaling convention was adopted in 1931, the convention in force today dates back to 1946, and only this last agreement is represented in the gure. Though by this construction Figure 6.1 slightly exaggerates the rate of increase in the number of multilateral environmental agreements, and understates the number of agreements existing earlier, the overall impression it leaves is broadly right: use of environmental treaties has increased signi cantly, especially since the Second World War. Only four of the 225 multilateral environmental agreements currently in force were adopted by 1945. And another 72 treaties adopted since 1945 could still enter into force (given time, most, but not all, of these treaties will enter into force). Figure 6.1. Multilateral treaties currently in force by date of adoption Though environmental treaties are fairly modern institutions, their ancestry goes back a long way. The oldest international water agreement, at least to my knowledge, is a unilateral declaration granting freedom of navigation to a monastery, signed by Emperor Charlemagne in the year 805 (Food and Agriculture Organization 1978). The rst North American IEA was a bilateral sheries agreement between the United States and Canada (in those days, represented by Britain), signed in 1818—an agreement that also established the 49th parallel as the international boundary and provided for the restoration of property (including slaves) con scated during the War of 1812. The rst agreement on the conservation of nature— the Convention for the Protection of Birds Useful to Agriculture—was signed by eleven European nations in 1902. This is the oldest treaty listed in the appendix. The growth in IEAs since 1945 coincides with the birth of our modern multilateral institutions, the United Nations (UN) being perhaps the most important. Moreover, multilateral IEAs are routinely negotiated under the auspices of the UN and its many agencies (or under regional organizations like the Council of Europe, p. 136 which today comprises about forty states). For both reasons, it might seem that the UN system gave rise to the rapid growth in treaty negotiation, but this impression would be wrong. What really explains the growth in IEAs is an increase in the demand for such institutions, not a more favorable supporting structure facilitating their supply. It was not until the middle of the twentieth century that transnational externalities became a pervasive xture of international relations, helped by an increase in the scale of human activity (measured both at the intensive and extensive margins), an accumulation of previous environmental misdeeds, an increase in incomes in the industrialized countries, a change in preferences, and a more fragmented geo-political landscape. This last reason for the growth in IEAs is more important than is often recognized. As shown in Figure 6.2, the number of countries (approximated in the gure by UN membership) has increased several fold since 1945, mainly because of de-colonization and the break-up of the Soviet Union, and also as a result of civil war (Yugoslavia and Ethiopia being two recent 8 examples). As illustrated by the examples of the Aral Sea and the Indus Basin, fragmentation of the political Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 landscape turns intra-national environmental problems into transnational con icts, and thus creates a demand for treaty remedies. The UN system served as a helpful platform for resolving these con icts of interdependence. It helped to reduce the transactions costs of treaty negotiations. But it was not the main cause of the growth in IEAs. It is probably better to think of IEAs and the UN institutions as arising contemporaneously, and as playing mutually supporting roles. Figure 6.2. Membership in the United Nations Figure 6.1 also distinguishes between the agreements requiring ten or fewer rati cations and those requiring more than ten rati cations to enter into force. Not only has the total number of agreements increased substantially, but the number of agreements requiring participation by a large number of countries has also increased. This matters. An important theme of this book is that cooperation is harder to sustain, the larger is the number of countries that contribute to or are a ected by an externality. As suggested in Chapter 1, that a lot of agreements have been adopted does not mean that the world's shared environments are being adequately protected. IEAs form a dense network of international alliances. Most countries will be a party to some bilateral agreements (usually with geographic neighbors), to a few “minilateral” agreements (often of a regional character), and to a number of global agreements. International environmental agreements also overlap or are interrelated so that a particular environmental outcome may depend on more than one agreement. Bilateral agreements that provide for the exchange of whaling observers, for example, make these o cials accountable to the International Whaling Commission (IWC), which was itself created by the International Convention for the Regulation of Whaling (ICRW). Whales are also protected by the Convention on International Trade in Endangered Species (CITES); and the harvesting of krill, the main diet of baleen whales in the Antarctic Ocean, is regulated by the Convention on the Conservation of Antarctic Marine Living Resources, an agreement requiring close cooperation p. 137 between its own commission and the IWC. Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 6.3. EU DIRECTIVES The European Union (EU) has adopted several hundred environmental regulations, directives, and decisions (including amendments and revisions)—legislative measures that resemble IEAs but that need to be treated separately because they are negotiated and implemented in a unique institutional setting. For this reason, EU agreements are excluded from the table shown in the appendix. Crucially, the European Commission can make decisions that are legally binding on member states, and under the Maastricht Treaty member states lose the veto as regards certain decisions by the Council of Ministers, including those relating to the environment. However, while the sovereignty of member states has been diluted, their essential rights remain intact. All the members of the EU can renegotiate the arrangements that are now in place, and every member is free to withdraw from the Union. The reason that the sovereignty of European member states has been eroded is not that these fundamental rights have been given away. Their sovereignty has been weakened because, through a succession of decisions, the incentive for members to exercise these rights has been reduced. The process of deepening has imposed costs on every member, and though these costs were willingly absorbed (presumably because they yielded an even greater bene t), they cannot be recovered later. It is because so many of the costs of integration are sunk that the incentive to withdraw has been muted. This is where the sovereignty of EU members has been compromised. Indeed, largely because of the di erent institutional context, EU directives are of a di erent character than p. 138 the IEAs listed in the appendix. The EU is more than a free trade area. The fundamental principle of the multilateral trading system is non-discrimination, but the EU seeks a deeper form of integration. It aims to create a single market, and most EU environmental legislation is designed to advance this aim, not to correct cross-border externalities. Lawnmower noise is hardly an issue for environmental diplomacy, and yet an EU directive prescribes maximum noise levels for lawnmowers. The reason, of course, is that the directive lets lawnmower manufacturers sell the same machines in Belgium and in Greece. As well, the EU is hardly the ideal arrangement for correcting transnational externalities. Bilateral externalities are best resolved bilaterally, and multilateral externalities rarely t neatly into the EU frame. The Rhine Chlorides Agreement, for example, includes Switzerland, which is not an EU member, while the majority of EU states are una ected by pollution of the Rhine. Though acid rain emissions have been reduced by the EU's Large Combustion Plants Directive, many countries with a stake in this issue are non- members of the EU, and separate agreements (including the Helsinki and Oslo Protocols, discussed in Chapter 1) have been negotiated among this larger number of states, under the auspices of the UN's Economic Commission for Europe rather than the EU. 6.4. BILATERAL AGREEMENTS The IEAs listed in the appendix also exclude bilateral agreements. This is partly because of the di culty of compiling a comprehensive list of such agreements, but it is also because bilateral situations are special. For reasons explained in the next chapter, bilateral externalities are much easier to remedy than multilateral externalities. Though a few bilateral agreements are discussed in this book, my main concern lies with multilateral agreements. To my knowledge, no one has counted all the bilateral environmental agreements in force today. However, Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 this number is almost certain to be a multiple of the number of multilateral environmental agreements listed in the appendix. Surveys compiled by the Food and Agriculture Organization of the United Nations (1978, 1984) list 3707 agreements concerning the management of international water resources alone, most of which are bilateral (though many of these address navigational issues and only a fraction remain in force today). A report by the United States International Trade Commission (1991) identi ed seventy-four bilateral environmental agreements to which the United States was a party, out of a total of 170 IEAs in which the US had an interest of some kind. If the average country were a party to just ten bilateral IEAs, there would be about a thousand such agreements in total, more than three times the number of multilateral agreements. 6.5. THE PROCESS OF TREATY-MAKING9 The focus of later chapters is on explaining treaty outcomes. Such outcomes, however, do not come from the p. 139 blue. They rather emerge from a process. Though I suppress the role of process in shaping treaty outcomes in subsequent chapters, this is only for analytical convenience. Process matters, and this section is intended to give a sense for why and how process matters to treaty outcomes. The process of treaty-making is complex, and neither uniform nor linear, but for analytical purposes can be broken down into ve stages: pre-negotiation, negotiation, rati cation, implementation, and renegotiation. These di erent stages are discussed in turn below. 6.5.1. Pre-negotiation Negotiations are normally preceded by a phase of pre-negotiation maneuvering. In the run-up to the Kyoto talks on climate change, for example, Australia claimed that it should be allowed to increase emissions, Europe argued for deep cuts, and the United States maintained that stabilization was more prudent. This is “cheap talk,” and it is unlikely to have much e ect on the outcome of negotiations in prisoners' dilemma 10 (PD)-like games. At the Kyoto negotiations, for example, Europe accepted smaller cuts in emissions than it had previously argued were needed, while the United States agreed to reduce rather than to stabilize its emissions. Australia got pretty much what it wanted—permission to increase its emissions. However, this outcome may not have been in uenced by Australia's pre-negotiation announcements; it may rather have been determined by an assessment of Australia's real interests or perhaps by Australia's superior bargaining skill. As discussed in Chapter 3, a country's public announcements are unlikely to in uence the perceptions that others have about its true payo s for the simple reason that others will know that it has an incentive to deceive them. Tactics of deception are also constrained by domestic politics. In democracies, elected representatives are prevented from falsifying their country's true preferences. If negotiators claimed publicly that they did not care about an environmental problem, hoping thereby to win concessions from other countries, there would almost surely be a domestic backlash. It is in the nature of a democracy that public sentiment is observable. Even for an autocratic state, interests can be discerned. It may not be credible for a dictator to profess indi erence to a cross-border externality if that externality impinged on the economy's ability to produce an income for the ruling elite. Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 Forming a Negotiating Position States are not monoliths, and their negotiators do not represent a single interest group. But, somehow, the preferences of the citizenry must be consolidated into a unitary negotiating position. In the United States, this requires an inter-agency agreement. For a cross-cutting issue like climate change, internal negotiations can involve a dozen or more government departments, including the Environmental Protection Agency and the Departments of State, Energy, Interior, and Treasury. Each of these government agencies, in turn, represents a variety of interests, and must forge a negotiating position of its own after p. 140 being lobbied by trade associations, rms, environmental groups, and other non-governmental organizations (NGOs). By the time domestic negotiations end—and very often the president reconciles remaining di erences—the team sent to negotiate with foreign governments is likely to be exhausted. But having agreed on what its country's interests are, and how it should conduct its negotiations, the o cial delegation must then negotiate with other states, and this will involve further give and take, and a reappraisal of both the country's interests and its negotiating strategy. Each round of intergovernmental negotiations thus initiates another round of intra-governmental negotiations. And so it goes on. For complex negotiations involving big stakes, the need to rebalance an internal position may necessitate sending a huge delegation. At the Kyoto Protocol talks, the US delegation exceeded fty individuals. Hundreds more individuals, representing business groups and NGOs of various descriptions, also attended Kyoto, hoping to keep up the pressure on the government negotiators. Coalition-building Multiply the problems I have just noted by fteen and you will get a sense of the coordination challenges faced by the EU. Not only must each of the member states arrive at its own position, in a manner like the one described above, but collectively all the fteen states must agree on a common approach before negotiating as a bloc with other countries. Negotiating from a common position strengthens the EU's collective hand in negotiations. But the need to coordinate also makes it harder for the EU to negotiate e ectively. A senior US diplomat told me that the EU was not even represented at some of the post-Kyoto negotiating sessions convened in The Hague in November 2000. Having failed to reach internal agreement on the way to move forward, the EU was unprepared to negotiate with other countries. The EU is a permanent, formal arrangement, but other countries also nd it convenient to form ad hoc coalitions before negotiations get underway. In the Montreal Protocol negotiations, the United States teamed up with Canada, Finland, Norway, Sweden, and Switzerland to comprise the “Toronto Group” of countries. In the climate negotiations, a number of coalitions were formed, including the “Umbrella Group,” consisting of Australia, Canada, Japan, New Zealand, Norway, Russia, Ukraine, and the United States; the “Environmental Integrity Group,” consisting of Mexico, the Republic of Korea, and Switzerland; and the “Alliance of Small Island States,” comprising a number of small island nations. Other coalitions included the Less Developed Countries (LDCs), the G77-China, the Small Island Developing States (SIDS), and OPEC. As mentioned before, negotiating as a group confers a bargaining advantage. It may also be an e cient means by which countries sharing common interests can acquire information. Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 Strategic Behavior The making of real commitments is di erent from an expression of intent. But as noted in Chapter 3, it is very hard for countries to make real commitments. A “commitment” to stabilize carbon dioxide emissions p. 141 at 1990 levels, for example, is no such thing, if the pledge can be reversed at little or no cost. The European Community made such a declaration in 1990, but then failed to implement policies to achieve the target—signaling that it was not committed to the target. Anyway, it is hard to see how unilateral target- setting of this kind could be strategic—how it could a ect the behavior of other nations, to the bene t of Europe—unless other countries could be expected to follow Europe's example, whether out of a sense of 11 moral obligation or a preference to conform. History teaches that leadership of this kind usually goes unrewarded. Indeed, virtuous behavior can have the opposite e ect intended. In the middle of the protracted Rhine chlorides negotiations, for example, a Dutch water company constructed a treatment plant to soften Amsterdam's drinking water. Anticipating future reductions in salt emissions, as promised by the 1976 agreement, the plant was designed to treat water with a low chloride content. If the upstream states reneged on their promise to reduce chloride emissions (and at the time the treatment plant was built, these countries had not invested in further storage), however, the water treatment facility would need to be re- engineered at considerable cost. The sunk investment in the treatment facility thus made the Netherlands more eager to reach an agreement to reduce salt emissions, and so weakened its bargaining position. Not surprisingly, the Netherlands got less than it wanted in the next round of negotiations (see Bernauer 1996). Villainous behavior is sometimes better rewarded by pre-negotiation maneuvering. Countries may step up their exploitation of a shared resource, for example, or take other actions (including irreversible investments) to improve their post-negotiation payo. Fortunately, however, these incentives to behave strategically can often be numbed. Thus, the climate change negotiations established 1990 as a baseline from which future emission reductions were to be negotiated—a baseline that current and future actions could not possibly alter. 6.5.2. Negotiation Negotiations concerning complex, global issues are complicated a airs, and can involve well over 150 states. If only to reduce transactions costs, the parties that gather at such meetings can bene t by structuring the negotiations—by agreeing to divide the problem up in some fashion, perhaps, or by electing to negotiate in steps. This is why large-scale negotiations routinely start with an agreement on a process for collective decision-making. Procedural Arrangements Participants at the Third United Nations Law of the Sea (LOS) Conference rst organized themselves into three committees, each concerned with a di erent issue and meeting separately but in parallel (see Sebenius 1984). The rules of procedure adopted by the conference required substantive issues to be decided p. 142 by a two-thirds majority of the states participating in a negotiating session, and on a number of occasions proposals put to the conference were blocked, usually by a coalition of land-locked countries. The negotiators worked from a draft text, commonly known as a “single negotiating text,” which was reworked again and again as the negotiations progressed. When the nal draft of the text was ready, nine years after the negotiations began, 130 nations voted to approve it, and the treaty was prepared for signature shortly Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 thereafter. A number of important maritime nations, however, objected to the treaty, and declined to sign or ratify it. It was not until 1994, shortly before the LOS was to come into force, that a side deal was negotiated to win the approval of these crucial hold-outs. The two-thirds rule adopted by the LOS Conference is actually one of two routes that can be taken for negotiating a major treaty. The other, as spelled out in Article 9 of the Vienna Convention on the Law of Treaties, requires the consent of all states participating in the drawing up of a treaty. This “consensus” rule, the advantage of which is discussed in Chapter 11, was employed by the Intergovernmental Negotiating Committee (INC), a body created by a UN resolution to organize the negotiation of a rst climate treaty. Like the LOS negotiations, diplomats negotiating the climate change agreement worked from a single negotiating text (which for most of the negotiations was littered with brackets), and divided the INC into separate negotiating groups. Unlike the Third LOS Conference, however, the INC faced a deadline: in a pre-negotiation maneuver, the General Assembly insisted that the Framework Convention on Climate Change be ready for signing at the United Nations Conference on Environment and Development in Rio de Janeiro in June 1992. The draft text submitted on the nal day of the nal negotiating session, just 15 months after the rst session was convened, was approved without a formal ballot. Committees, Agenda-setting, and Text-writing Obviously, treaty negotiations have to start somewhere. But where? There will typically be many rst drafts that would be acceptable at least to a majority of countries. But only one can be o ered in a single negotiating text, and though it is technically possible to reverse the negotiations at a later time or even to throw the text out and start from scratch, in practice this rarely happens. So the rst draft can have some in uence on the nature of the agreement that is nally negotiated (see Rai a 1982). Similarly, committee arrangements can steer negotiations toward one outcome rather than another. For example, the order in which alternatives are put to a vote can alter a committee's nal choice (see, for example, Riker 1986). Committee chairmen determine the agenda and oversee preparation of the negotiating text, and so can shape a negotiation, whether for good or for ill. Senior negotiators can also guide a negotiation. We saw in Chapter 2 that President Taft's intervention helped to shift Japan's position, and thus clear the way for the Fur Seal Treaty to be adopted. Another president may not have written that letter. An even better example is the Treaty of Versailles negotiations. As John Maynard Keynes (1963: 34) tells it, “The President [Wilson], the Tiger [Clemenceau], and the Welsh witch [Lloyd George] were shut up in a room together for six months p. 143 and the Treaty was what came out.” In the eld of environmental diplomacy, Benedick (1998) applauds the leadership of Mostafa Tolba, the Executive Director of the United Nations Environment Programme, in negotiating the Montreal Protocol; and Sebenius (1984) salutes the role played by Ambassador Tommy T.B. Koh of Singapore in guiding the LOS negotiations. The box on the next page shows how Raúl Estrada- Oyuela, Chairman of the Kyoto Protocol talks, was able to steer this particular negotiation. Tactics A diplomat's memoirs will emphasize not just the personalities of the individuals involved but the craft of statesmanship, especially in the exercise of tactics. John Maynard Keynes, who was a member of the British delegation to the Treaty of Versailles negotiations, later recalled a turning point at talks held in Paris on March 6, 1919. “The Delegates sat in a steep horseshoe with their advisers crowded behind them [Keynes sat behind the British Prime Minister, Lloyd George]. Inside the horseshoe was Clemenceau. In the middle of it facing the replace sat [Marshal] Foch. To the left of Foch were ranged in order the Japanese, the Italians, ourselves and the Americans, and on his other side facing us were the French” (Keynes 1949: 53). The British were especially keen to obtain immediate relief for German civilians, who were literally starving Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 under the occupation. The French, however, blocked earlier attempts to provide relief. Keynes (1949: 59) continues: The debate dragged on, but the French were losing ground. Suddenly a secretary hurried in with a sealed envelope for the Prime Minister [Lloyd George]. It contained another telegram from Plumer [General Plumer of the British forces] received whilst the Conference was in session. The Prime Minister read it out immediately in a sensational manner. ‘Please inform the Prime Minister’, the General telegraphed, ‘that in my opinion food must be sent into this area by the Allies without delay …. The mortality amongst women, children and sick is most grave, and sickness due to hunger is spreading. The attitude of the population is becoming one of despair, and the people feel that an end by bullets is preferable to death by starvation …. I request therefore that a de nite date be xed for the arrival of the rst supplies.’ A considerable e ect was produced; it became very di cult for the French to raise petty obstructionisms. I learnt afterwards that the whole thing had been stage-managed and that Plumer's telegram had been sent in response to a request from Paris, conveyed to him that morning in preparation for the afternoon. Chance Negotiations are also shaped by chance. Richard Benedick (1998) tells of a deadlock in the Montreal talks, and how it came to be broken. The negotiations became stuck on choice of a base year from which all negotiated reductions in chloro uorocarbon (CFC) production and consumption were to be calculated. The United States and most other countries preferred 1986, while the Soviet Union insisted on 1990. As the negotiations were expected to nish in 1987, the majority of negotiators worried that a 1990 base year would create incentives for harmful strategic behavior. As discussed earlier, states might be tempted to increase their production and consumption in the 1987–90 period so as to establish a higher basis from p. 144 which subsequent cuts would be calculated. It turned out that the Soviets insisted on 1990 only because it coincided with the end of their ve-year planning cycle, a problem that was easily remedied by adding a quali cation to the treaty text. However, the reason for the Soviet's position only came to light on a chance p. 145 event. During a break in the negotiations, the Soviet negotiator overheard Ambassador Benedick speaking in German. The Soviet negotiator knew German better than English, and was able to explain his position more clearly to Benedick in this language. From this point on, the negotiations proceeded more smoothly. Negotiation of the Compliance Article of the Kyoto Protocol Only days before the Kyoto Protocol talks were scheduled to end, a “non-paper” by the Chairman of the Committee of the Whole, Ambassador Raúl Estrada-Oyuela of Argentina, split proposals for a compliance article into two alternatives: Alternative A “The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its rst session, in a manner that takes fully into account the need for compatibility with any procedures under Article 17, Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 approve appropriate and e ective procedures and mechanisms to determine and to address cases of non- compliance of Annex I Parties with the provisions of this Protocol, including through the development of an indicative list of consequences, taking into account the cause, type, degree and frequency of non-compliance. Any binding penalties for non-compliance under the procedures and mechanisms established under this Article shall be made available for the use of the clean development fund established under Article _.” Alternative B “The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its rst session, approve appropriate and e ective procedures and mechanisms to determine and to address cases of non- compliance with the provisions of this Protocol, including through the development of an indicative list of consequences, taking into account the cause, degree and frequency of non-compliance. Any procedures and mechanisms under this Article entailing binding consequences shall be adopted by means of an amendment to this Protocol.” The rst version, re ecting the views of the G77 and China, limited compliance to the Annex I countries (that is, countries other than the G77 and China), and required that “any binding penalties” (read, nancial penalties) be paid, e ectively, to the non-Annex I countries. Alternative B, re ecting the interests of the Annex I countries, did not limit compliance to the Annex I countries, and required that any binding compliance penalties be approved by an amendment— e ectively, o ering Annex I the means of avoiding enforcement. In the event, Alternative B was adopted without alteration. But the Annex I countries got less than they wanted. Previously, the US proposed allowing parties to “borrow” emissions from a future control period as a way of staying in compliance, but Chairman Estrada managed to keep this wording out of the treaty. The EU and Norway requested that the agreement call for “prompt start” on compliance, but the Chairman made sure that these words were also left out of the nal text. Sources: The text is from FCCC/CP/1997/CRP.2, 7 December 1997. Information on Chairman Estrada's role is from FCCC/TP/2000/2. Leadership Though personality, tactics, and chance help to determine the course of actual negotiations, I ignore them in later chapters because they cannot be neatly incorporated into a theory of international cooperation. They are important for understanding how a particular outcome came about but they tell us very little that is useful for policy. To illustrate this point, consider the example of personality. Political scientist Oran Young (1994: 114) has emphasized the “leadership” qualities of negotiators, claiming that “e orts to negotiate the terms of international regimes are apt to succeed when one or more individuals emerge as e ective leaders and that in the absence of such leadership, they will fail.” This is true enough. But what is the implication for policy, that our representatives should be good leaders? Policy cannot make a person a good leader. It can only shape the rules for choosing representatives (or for deposing them), and alter the opportunity sets at their disposal. At any one time, we have to make do with the representatives we have. Better to show these individuals how they can do better—how they can use strategy, for example, to make treaties more e ective —than to ask them to be better leaders, something they may not even be capable of. Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 As well, the circumstances that allow for leadership are in the main givens, and they are not always friendly to treaty-making. I believe Richard Benedick when he says that Montreal's success was due in part to the leadership shown by Mostafa Tolba. But Tolba also played a leading role in other negotiations that were not as successful. Presumably, his leadership talents were more or less constant in these di erent negotiations. What is more likely to account for the di erence in outcomes are the fundamental forces that shape behavior—the kinds of incentives discussed in Chapters 3 and 4. These are the forces that leadership cannot alter but that strategy can sometimes restructure. Transparency There has been a trend in recent years of making negotiations more transparent and accessible to the media and NGOs. Super cially, this may seem to advance the cause of cooperation. However, it is as likely to have precisely the opposite e ect. States prefer to negotiate in private for good reason. Compromise is an essential lubricant to negotiation, and it would be extremely di cult for a country to compromise on its stated principles in full public view. Transparency can thus promote entrenchment of positions. As negotiations have become more open, negotiators have found new ways of securing privacy. As interested parties of various descriptions are invited to one meeting, negotiators convene a closed meeting to get the real business done. The consequence of the increase in transparency has thus been a more p. 146 burdensome process rather than a more e ective one. As one negotiator told me, NGOs have acquired access, not in uence. Many NGOs have come to the same conclusion, and are now thinking of scaling back their participation in conference negotiations. The Convention-protocol Model Negotiators can choose whether to negotiate a single agreement or to break a problem up, negotiating rst a “convention” that aims to establish general principles, and only later negotiating follow-on “protocols” 12 prescribing speci c obligations in speci c areas. Examples include the Vienna Convention and its associated Montreal Protocol, the Framework Convention on Climate Change and its a liated Kyoto Protocol, and the eight protocols negotiated under the umbrella of the Convention on Long-Range Transboundary Air Pollution (LRTAP). At one time, Canada proposed negotiation of a “Law of the Atmosphere,” under which the issues of acid rain, ozone depletion, and climate change would be addressed by separate protocols (Bodansky 1994). This may have made sense from the perspective of the atmosphere. In complicated ways, all three issues are interrelated. However, the idea failed to catch on, probably because of the poor example set by the lengthy LOS negotiations. To be eligible to sign a protocol, a state must usually have rati ed its associated convention. Parties to a convention, however, are not obligated to be bound by any of its protocols. The decision not to link di erent aspects of an environmental problem—like the abatement of sulfur dioxide and nitrogen oxides in an acid rain agreement—can thus be strategic. Murdoch et al. (1997) argue that, had the LRTAP not provided for separate protocols to be negotiated for each of the di erent pollutants, smaller reductions in sulphur emissions would have been negotiated. They may be right, but in other situations linkage of separate issues can help countries cut a better deal overall (see Rai a 1982). There is no theorem that says that linkage invariably helps or harms international cooperation. The e ect depends on the issues that are linked and on the manner in which they are linked. Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 Delegation The arrangements made between negotiators and their chief executives may also help determine treaty outcomes. After a verbal agreement was reached at the Non-Proliferation Treaty talks, the Soviet delegation handed the chief US negotiator, Arthur Goldberg, a new proposal (Zartman and Berman 1982). Goldberg refused to accept it, however. To the astonishment of the Soviets, Goldberg even refused to tell the President about the o er. “Don't you have to report it to Washington?” the Soviet negotiator asked. “No,” replied Goldberg, “I don't have to report it to Washington. I'm authorized to negotiate and I see no point in reporting it to Washington.” As matters turned out, Goldberg did report the o er to his government, but he knew it would be rejected out of hand. Indeed, he was pretty sure that the o er was made only to please the Romanians. “They knew we would not accept it,” Goldberg said in an interview (Zartman and Berman 1982: p. 147 151). In this particular instance, delegation probably made little di erence. But the outcome could have been otherwise. Goldberg could have lied, with neither Washington nor the Soviets being aware of the deception. Delegation of responsibility thus carries risks for the executive. The negotiator may strike a bargain that the executive does not like. This is one reason why agreements between countries need to be rati ed. 6.5.3. Ratification Treaties, being formal institutions, enter into law by means of formal procedures, the most important of which is rati cation. Rati cation, however, is preceded by other decisions that can be important on their own. Indeed, these other decisions can interact with the decision to ratify. Signing, Acceding, and Ratifying A state signals its intent to comply with an agreement by having one of its representatives sign it. For bilateral agreements, a signature is sometimes enough to establish a state's consent to be legally bound by a treaty. For multilateral agreements, however, a signature only indicates a state's intent to seek rati cation; it does not impose a legal obligation for a state actually to ratify (Brownlie 1990). Still, a signature is not a mere gesture. A country that signs a treaty is obligated to refrain from undermining its objectives. President Bill Clinton signed the Kyoto Protocol, which was subsequently denounced by his successor, George W. Bush. Bush declared that the United States would not become a party to the treaty, but Clinton's signature imposed a duty upon the United States not to interfere in the choices made by other countries to ratify and, should the agreement enter into force, to implement Kyoto. Signing ceremonies usually mark the date at which a treaty is adopted (see the appendix). The Convention on Biological Diversity and the Framework Convention on Climate Change were signed by over 100 heads of state at the Rio Earth Summit in 1992, amid much fanfare. It is more usual, however, for IEAs to be signed by junior ministers or even civil servants in more ordinary surroundings. Normally, an agreement is open for signature for a xed period, though after this time has lapsed provisions are usually made for eligible countries to accede at any time. Accession carries the same weight as rati cation. However, countries that accede may not have participated in the negotiations. While a signature is sometimes su cient for an agreement to enter into force, it is more usual for IEAs to become legally binding only after being rati ed. (Where a state's own constitution does not require Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 rati cation, an indication by this state of its acceptance or approval of a treaty is su cient). Rati cation safeguards against a country's negotiator deviating from her instructions and exceeding her authority. Two-level Games p. 148 The process of rati cation is for each state to determine, but normally requires the approval of a state's parliament. In the United States, rati cation requires the approval of a two-thirds majority of the Senate, whereas in the United Kingdom approval by only a majority of MPs is required. This is a big di erence. The two-thirds rule is a huge hurdle. And under the United States political system, the President does not “control” the Senate. It is rare for any political party to control two-thirds of the Senate's seats. Often, the President's party will not even control a majority of senators. Moreover, the President is not the leader of his party. A British Prime Minister with a comfortable majority can pretty much count on parliamentary approval of most treaties. In the United States, rati cation can rarely be relied upon. Of course, the President should be able to anticipate how the Senate will vote, and this expectation should in turn shape the treaty his Administration negotiates. Rati cation thus provides a formal link between domestic and international politics, one that political scientist Robert Putnam (1988) describes as a two- level game. Though Putnam does not articulate the problem quite this way, the two-level game can be thought of as proceeding in stages. In Stage 1, the executives of every country negotiate an agreement. In Stage 2 the agreement comes before national parliaments for rati cation. Negotiators are almost certain to look ahead and reason backwards, taking the requirements for rati cation into account in Stage 1 (a point 13 emphasized by Putnam). Parliamentary Pre-emption Parliament might also try to pre-empt the executive. For example, parliament may move rst by demanding that certain conditions be met for rati cation (subject, presumably, to these demands being credible). Alternatively, it may require that particular conditions be satis ed if certain unilateral actions are to be avoided. The need for rati cation allows parliament to play a role of its own on the international stage. During the Montreal Protocol negotiations, the US Congress drafted legislation calling for trade restrictions to be imposed against nations that refused to accept their share of the common responsibility to reduce harmful emissions. According to Benedick (1998: 29), “US negotiators made certain that the implications of this threat were not lost on foreign governments, pointing out that there might be a price to pay for not joining in meaningful e orts to protect the ozone layer.” In the summer of 1997, the US Senate voted 95–0 in favor of a non-binding resolution rejecting a climate treaty that would restrict the emissions of industrialized countries but not developing countries and that would be a burden to the US economy. The resolution was intended as a shot over the bows of the Clinton Administration as it readied for the Kyoto talks. The Senate may also have hoped to alter the behavior of other countries at these negotiations. As matters turned out, however, the resolution had no such in uence 14 (see Chapter 15). The treaty negotiated in Kyoto failed to satisfy the requirements that had been set by the Senate, and President Clinton never asked the Senate to ratify it. Perhaps this is the exception that proves the rule suggested by Putnam's analysis. Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 p. 149 Openness Instruments of rati cation are usually deposited with one of the negotiating parties (the instruments of rati cation to the North Paci c Fur Seal Treaty, for example, were deposited with the US government), or with the Secretary General of the UN (as in the case of the Framework Convention on Climate Change). A treaty's depository is responsible for informing parties of changes in the status of the treaty's membership. The 1969 International Convention on the Law of Treaties further requires that treaties be sent to the UN for registration and publication. International law thus ensures that treaties and their signatories are public knowledge. I noted earlier that transparency may be injurious to treaty negotiations, but transparency of treaty outcomes is to be praised. At one time, secret treaties were common. The 1887 Reinsurance Treaty, for example, pledged Germany and Russia not to take sides with a “third Great Power” in a war involving one of the signatories. It also pledged both countries to “secrecy as to the contents and the existence of the present Treaty.” Though such treaties were intended to build stability, they had the opposite e ect. As Kissinger (1994: 166) explains, “Bismarck's machinations, which were intended to provide reassurance, over time had an oddly unsettling e ect, partly because his contemporaries had such di culty comprehending their increasingly convoluted nature. Fearful of being outmaneuvered, they tended to hedge their bets. But this course of action also limited exibility, the mainspring of Real-politik as a substitute for con ict.” The rst of President Woodrow Wilson's Fourteen Points prohibits secret treaties; and international law prohibits them still today. 6.5.4. Implementation Having entered into force, a treaty must be implemented. Implementation typically requires the passage of domestic legislation or the adoption of implementing regulations. Sometimes an IEA will actually require that domestic legislation be adopted to give domestic force to a treaty, though states are normally given substantial leeway in choosing the means for implementation. For example, the controls on CFCs mandated by the Montreal Protocol have been implemented in di erent countries by a variety of means—quotas, tradable permits, taxes, product regulations, and voluntary agreements. Reporting Many IEAs require parties to report data relating to their implementation—often, but not always, to a small administrative body set up under the agreement. For example, parties to the Montreal Protocol are required to provide the treaty's secretariat with data on production, imports, and exports of the substances controlled by the treaty. Compliance with treaty reporting requirements varies widely. A study by the US General Accounting O ce (1992) found that all but one of the seventeen parties to the Nitrogen Oxides Protocol submitted reports within a year of the agreement entering into force. By contrast, only 25 of the 104 parties to CITES submitted their reports as required in 1989. p. 150 Despite its many other successes, reporting has long been a problem for the Montreal Protocol. The GAO study cited above found that only fty-two of the protocol's sixty- ve parties submitted any consumption data for 1990, and only twenty-nine parties submitted a complete set of data that year. An Ad Hoc Group of Experts on the Reporting of Data found that the failure to report was often due to a lack of capacity to compile the required data in developing countries. Wanting to improve on this record, the parties o ered Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 technical assistance, nanced by the Ozone Fund, and also threatened to withhold all related nancial assistance if the failure to report persisted. In 1995, after the secretariat repeatedly but unsuccessfully tried to obtain data from Mauritania, the Implementation Committee recommended that the country be reclassi ed as a party not operating under Article 5 until it satis ed the treaty's reporting requirements. Among other things, this meant that Mauritania would be ineligible to receive nancial assistance. Soon after the recommendation was made, Mauritania submitted the required data. Verification More problematic is verifying the accuracy of the data that are reported. Parties, after all, are asked to report on their own implementation (this being yet another expression of sovereignty), and must be tempted on occasion to mis-report. Information recently made available by the Russian government shows that the Soviet Union systematically failed to report accurately the number of whales killed by its Antarctic whaling eet in the 1960s, a deception carried out with the skilled assistance of the KGB (see Chayes and Chayes 1995). While the USSR reported to the IWC that it had killed 270 humpback whales in the 1961–62 season, the actual data reveal that just one of the eet's four ships killed 1568 humpbacks that year. For the 1963–64 season, the Soviets reported killing 74 blue whales, while the true data reveal that a single ship killed more than 530 of these great leviathans. “The USSR's false reporting was so drastic and pervasive,” writes Chayes and Chayes (1995: 155), “that some experts believe it accounts for the persistent inaccuracy of the IWC Scienti c Committee's forecasts of whale populations, on which the catch limits were based.” Monitoring Of course, the incentive for parties to deceive creates an incentive for others to monitor. The suspicion that certain whaling nations were violating IWC recommendations, for example, led to the creation of the International Observers Scheme in 1972. This established bilateral and trilateral agreements, by which means states whaling in the same oceanic region exchanged observers, based either on land or aboard ship. As matters turned out, the observers scheme proved an imperfect monitoring device. Only whaling states are represented by the observers scheme, and the design of the scheme may have promoted collusion among whaling states; since observers were swapped, each country might have been willing to overlook its partner's excess harvest on the understanding that its partner would reciprocate. Another problem was that p. 151 the number of observers made available by a country was proportionate to the number of whaling vessels in its eet. With bilateral exchanges, states with large eets were thus incompletely monitored (Rose and Crane 1993). Finally, some states were not prepared to pay the costs of sending an observer (Lyster 1985). Monitoring by any state, of course, bene ts all whaling states and is thus vulnerable to free-riding. For all its faults, however, the observers scheme remains an outlier in international law. Most international agreements do not allow intrusive monitoring. An even more prominent exception is the Antarctic Treaty. This agreement allows unrestricted on-site inspections—probably because the treaty sets aside all territorial claims. More typical is the provision included in the Montreal Protocol, which authorizes the Implementation Committee “to undertake, upon the invitation of the party concerned (emphasis added), information-gathering in the territory of that party for ful lling the functions of the Committee” (see Chayes and Chayes 1995: 187). Being protective of their sovereignty, states are reluctant to accept on-site monitoring. The alternative more often tried is to negotiate obligations that are easily monitored from a distance, even if Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 they are less e ective in correcting an externality. The Limited Test Ban Treaty prohibited above-ground and not underground nuclear testing because veri cation of underground testing by satellite observation and other o -site means was unreliable. Similarly, discharges of oil by tankers at sea are not regulated directly but by an agreement requiring that tankers be tted with segregated ballast tanks. It is nearly impossible to monitor tanker discharges at sea, but it is easy to observe whether a tanker is tted with segregated ballast tanks (see Mitchell 1993). Rules, Discretion, and Administrative Bodies Treaties sometimes tell the parties exactly what they are supposed to do and when. More often, however, they create a regime for managing a resource, and leave the details to be decided later, usually at regularly scheduled meetings of the parties. Decisions to continue the moratorium on commercial whaling, for example, are made at the annual meeting of the ICRW. Similarly, decisions to reconsider the ban on trade in African elephant ivory are made at the regular meetings of the CITES. Another important example is the Montreal Protocol, which fails to specify in detail how non-compliance should be handled (see Chapter 10). Suspected instances of non-compliance must instead be brought before an Implementation Committee, which reviews the evidence, and considers the circumstances that may have caused the non-compliance, before making recommendations regarding speci c actions to be taken. Failure to specify a non-compliance rule ex ante may invite countries not to comply. However, the careful exercise of discretion may also prevent punishment of a country that is unable to comply for reasons beyond its control. Finding the right balance between commitment to a rule and exibility is a familiar challenge to institutional development (see, for example, Dixit 1996). Flexibility is especially important to the management of high seas sheries. Changes in agreed quotas and supplementary regulations are needed fairly frequently. Rather than negotiate these changes directly, sheries agreements often delegate the task to a sheries commission. But the commissions do not impose p. 152 prescriptions. They rather facilitate management choices. Decisions about what to do are still made by parties. As Peterson (1993: 276) has found, “in no case have governments been prepared to transfer authority to make immediately binding decisions to an international sheries commission.” As shown in Appendix 6.1, most IEAs have the support of an administrative organization. These are supposed to assist implementation by coordinating the collection and exchange of information submitted by the parties. Treaty secretariats are remarkably small organizations. Of the eight major IEAs examined by the US General Accounting O ce (1992), the International Convention for the Prevention of Pollution from Ships has the largest secretariat—with a sta , in 1990, of just 20 and with a budget of only $3 million. 6.5.5. Renegotiation Agreements can always be renegotiated, and negotiators can anticipate, in a world of certainty, whether an agreement may be vulnerable to renegotiation. Of course, it is precisely for this reason that diplomats can be expected to negotiate treaties that will not actually be renegotiated (just as they should negotiate treaties that will be rati ed). Still, it is important to allow for the possibility that IEAs can be renegotiated (see Barrett 1994a, 1999a). As shown later in this book, recognition of this possibility can have a profound e ect on the kinds of agreements that will actually be negotiated. Uncertainty and Irreversibility Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 In an uncertain world, however, renegotiation may be triggered by unforeseen changes in the underlying relationships of the game, that is, by changes in the same parameters that cause custom to change: prices, preferences, and technology. Renegotiation may also be prompted by learning over time. If implementation of a treaty could be reversed at zero cost, and if the environmental consequences of a treaty were also reversible, then negotiators could do no better than to behave myopically, negotiating an agreement in the current period that suited the background environment prevailing at this time, and only adjusting the agreement in subsequent periods if the background environment changed or if new information came to light. In this kind of world, history doesn't matter; the parties can do no better than to negotiate an agreement that suits the current period's background environment. Moreover, this would be true whether changes in the background environment were anticipated or whether they came as a total surprise. If some costs had to be sunk in the course of implementing an agreement, however, or if the environmental consequences of earlier actions could not be costlessly reversed, then modi cations to the treaty, reacting to unanticipated changes in the background environment, may need to bend to history. Renegotiation may improve matters starting from the existing state of a airs. But, with hindsight, it may have been better still if a di erent treaty had been adopted from the beginning. When shocks are unanticipated, countries can do no better than to follow a myopic rule, but they may nonetheless come to regret decisions taken earlier. This is if changes are unanticipated. If the parties know that certain parameters will change in the future, p. 153 and if earlier actions are irreversible, then far-sighted negotiators should deviate from the myopic rule in the initial negotiating period. For example, if the parties can anticipate that preservation of a unique environment would be favored over time, and that development would be irreversible, then they would want to deviate from the myopic rule. They would want to protect more of the resource in the near term than would otherwise be justi ed. Likewise, if there is uncertainty about the future background environment, and if the parties expect that this uncertainty will diminish with time, then countries may wish to negotiate 15 an initial agreement that keeps future options open. To sum up, negotiation of a treaty may be linked to the need at some future date to renegotiate, a decision possibly complicated by irreversibilities. That is, there may be a need to negotiate a exible treaty. Mechanics of Renegotiation Renegotiation can take di erent forms. A treaty may be entirely superceded by a new agreement, or it may be “adjusted” or “amended.” Negotiated adjustments are binding on all the original signatories (though, as discussed later, parties may withdraw from a treaty at any time, after giving su cient notice, and thus avoid having to comply with the adjustments). Amendments are di erent. Though all the original parties to an agreement must be invited to negotiate an amendment, and though these parties have the right to become parties to the amended agreement, they are not obligated to do so. Hence, a state may remain a signatory to the original agreement and not become a party to the amended agreement. Any state that accedes to the treaty after the amendments have come into e ect, however, must become a party to the Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 amended agreement and not just the original agreement. This is a requirement of international law. The Montreal Protocol is a model of exibility. It prescribes a sequence of obligations lasting in perpetuity, but one that could also be accelerated or decelerated, broadened or narrowed, strengthened or weakened as changes in science, technology, and treaty performance recommended. As matters turned out, the original treaty has undergone a number of transformations. It was adjusted in Vienna in 1995, amended in Beijing in 1999, and adjusted and amended in London in 1990, in Copenhagen in 1992, and in Montreal in 1997. A country that rati es the Montreal Protocol today is joining a very di erent treaty from the one negotiated in 1987. The amendments to the Montreal Protocol are essentially separate agreements, and are listed this way in the appendix to this chapter. 6.6. DEFINING N The parameter N, rst introduced in Chapter 3, is the potential number of signatories to an IEA, or the number of countries that have reason to be at the negotiating table. These are the countries that either cause or are a ected by an externality. In principle, N is easy to calculate in the case of an IEA supplying a global public good such as ozone layer protection. It is equal to the total number of countries that exist. p. 154 But while the principle is straightforward in this case, the total number of countries in the world is a surprisingly shadowy gure. A few countries are recognized as existing by some countries but not by others. The former “homeland” of Bophuthatswana, for example, was granted independence from white-ruled South Africa in 1977, but its sovereignty was recognized only by South Africa. Taiwan, deemed a break-away province by China, has not claimed to be a separate state, though it did apply to join the GATT as a “customs territory.” Palestine is not (yet) a state. And, yet, represented by the Palestine Liberation Organization, it has become a signatory to a number of regional Middle East agreements, including the Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment. The EU poses a di erent problem for classi cation. It is a party to many IEAs, but to include the EU in N as well as its member states may be to double count. On the other hand, EU participation is not super uous. Often, EU participation confers special privileges to member states. The Montreal Protocol, for example, allows unrestricted trading in “consumption entitlements” among EU members, a privilege not accorded to other parties. For both reasons, participation by the EU in the treaties listed in the appendix is indicated by an asterisk. For the purposes of this book, it doesn't matter how many countries there are in the world exactly. The problems of global governance aren't very sensitive to the addition or subtraction of even a dozen countries. It is enough to know that the total number of countries is “large.” What can matter are changes at a more micro scale. As shown in the next chapter, if the number of countries supplying a regional public good rises from two to three, the implications can be profound (more so than if N were to increase from, say, three to four). In the theory developed later, I shall be taking N as given. Where the identities of countries matter, I shall be taking these as givens, too. Young (1994) has been critical of this approach, claiming that “the identity of the relevant participants in [the formation of international regimes] is seldom cast in concrete.” He has also Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 criticized what he calls “mainstream utilitarian accounts of international regime formation” for assuming that N, and the identities of the players, are, as it were, set in concrete (Young 1994: 94). I agree that N has been wrongly speci ed in particular applications (earlier I noted the tendency to assume N = 2, even in analyses of global games). But the number of players and their identities can be deduced. Moreover, they must be deduced by any theory that hopes to have something relevant to say on the subject. The players in a game are simply the states that have the potential to act. If a game models negotiations as involving a set of X players (say, the countries that history tells us actually did negotiate), and yet this was preceded by a game involving a much larger set of Y players (with X being a subset of Y), the outcome of which determined X, then the negotiation game is a “subgame” of the larger game. Probably, the larger game should be the focus of inquiry. When the North Paci c Fur Seal Treaty was negotiated in 1911, the fur seal was hunted by just four countries, and so it might seem obvious that N should be set equal to four in this case. However, as discussed in Chapter 2, fur seals spend much of their lives in international waters. In other words, any country could p. 155 potentially hunt these animals. Indeed, costless re agging of sealing vessels would make entry easy. Correct modeling of this game should therefore include every country as a player. Similarly, any analysis of a high seas shery must consider N to be all the countries in the world. That is, our modeling of these kinds of problems must draw attention to the potential for entry, and of the need to deter entry by a treaty that limits participation. 6.7. PARTICIPATION RESTRICTIONS N is de ned by the nature of the problem being investigated. In the majority of cases, N is also the number of countries invited to participate in a negotiation. When countries negotiate the provision of a global public good, no country can gain by restricting membership, and so all countries will be invited to negotiate. This explains why membership of the Vienna Convention for the Protection of the Ozone Layer is open to all countries (see the table in the appendix). Participation in the Montreal Protocol is restricted (again, see the table)—but only to parties of the Vienna Convention. Since any country can accede to the Vienna Convention, any country can join Montreal. Where participation is restricted, the reason is usually that excluded parties have no opportunity to act, and no interest in the externality. Participation in the Niger River basin treaty, for example, is limited to the ten riparian states (N = 10 in this case). This is just as it should be. 6.7.1. Polar Bears Participation is also restricted by the Agreement on the Conservation of Polar Bears, but this is a di erent kind of situation. Polar bears were previously hunted both for their skins and for sport (in Alaska, “aerial safaris,” mostly in international waters, once accounted for 85–90 percent of the total number killed). In the 1950s it was thought that polar bears might become extinct. Unilateral policies to conserve polar bears would have been inadequate. Research showed that signi cant numbers of polar bears crossed international borders and earlier e orts to protect polar bears unilaterally had failed. As the Soviet member of the advisory body that helped prepare the way for multilateral negotiations put it, “Why should the USSR provide complete protection for the polar bear…if they were only producing a larger crop for neighbouring Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 16 nations?” Participation in the polar bear agreement was restricted to the ve circumpolar states, Canada, Denmark/Greenland, Norway, the Soviet Union, and the United States. The treaty needed to include all these countries because they all have polar bear populations and a signi cant number of polar bears cross their shared boundaries. However, like the fur seal, polar bears may also be hunted in international waters. Indeed, negotiators of the ve-party agreement feared that if they succeeded in conserving the polar bear, Japan and some European countries might initiate ship-based hunting (Fikkan et al. 1993). p. 156 Early drafts of the agreement anticipated the eventual need for a more comprehensive treaty, open to all nations to sign. However, the Soviets later insisted that the ve-party agreement would be su cient, and both they and the other negotiators believed that as long as the regime included the two superpowers and applied to all the polar bear states, entry by third parties would be deterred. As Fikkan et al. (1993: 138) put it, “the ve signatories made rules for the entire area—territory clearly beyond their own national sovereignty—and expected non-signatories to comply.” In the event, a follow-on global agreement was never negotiated, even though the ve-party agreement may not have been entirely e ective in deterring entry. Polar bears were occasionally seen in Iceland, and there was some evidence that nationals of nine non-signatory countries may have been engaged in harvesting polar bears or in trading their skins (Boardman 1981). Unlike the Fur Seal Treaty, the polar bear agreement does not include an explicit mechanism for deterring entry. However, the economics of pelagic harvesting may have been unfriendly to entry in this case anyway. Entry would also have been deterred by changes in custom, especially the extension of the territorial sea to 12 miles, and the creation of the 200- mile Exclusive Economic Zone (EEZ). A further deterrent would have been entry into force of the CITES agreement in 1975 (the polar bear is listed in appendix II of CITES, and all ve polar bear countries are also parties to CITES; see Lyster 1985), which restricts trade in polar bear products. 6.7.2. The Nile Participation restrictions were uncontroversial in the cases of the fur seal and polar bear treaties, largely because excluded countries had not established a prior claim to these resources. In other treaties, participation restrictions can be controversial. Though the Nile was shared by nine countries (today, ten countries) at the time that the Nile Waters Agreement was adopted in 1959, the agreement was negotiated between just two riparians, Egypt and Sudan. Continued exclusion of the other riparians casts a cloud over the legitimacy of the regime, and a Nile-wide agreement is almost sure to be needed eventually. Indeed, informal talks on such an agreement have already begun. 6.7.3. Antarctica Even more controversial, perhaps, are the participation restrictions in the 1959 Antarctic Treaty. Negotiations leading upto the signing of this treaty were limited to the twelve nations carrying out scienti c research on Antarctica during the International Geophysical Year (July 1, 1957 to December 31, 1958): Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the Soviet Union, the United Kingdom, and the United States. Other nations were excluded, and yet the fate of this continent should have been in every state's interests. Under Article IX of the treaty, signatories were given the status of “consultative parties” only if they were Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 one of the original twelve negotiating countries or a contracting party which had demonstrated “…its p. 157 interest in Antarctica by conducting substantial scienti c research activity there, such as the establishment of a scienti c station or the despatch of a scienti c expedition.” Thus, the original twelve 17 signatories formed a club, and set a high price for membership. In an early phase of the negotiations, the Soviets argued that all nations should be invited to the table. Though most of the other negotiating countries disagreed, many felt uncomfortable with the decision to exclude. According to Shapley (1985: 98), “New Zealand opposed inviting others but endorsed a principle of ‘fair treatment’ for non-parties. Norway preferred an ‘open door’ policy for other nations but wished to limit the conference to the twelve already there. Belgium said, ‘There was no question of monopoly of the Antarctic continent,’ and Australia agreed.” In November 1958, the United States tabled a draft article on the rights of non-participants. “The administrative measures which become e ective pursuant to Article VII of the present Treaty,” the draft began, “shall apply equally to all countries [that is, signatories and non-signatories] and shall be carried out in a uniform and non-discriminatory manner, with equal treatment being accorded to countries which are parties to the present Treaty and to countries not parties thereto, and to their respective nationals, so long as such countries and nationals respect the principles embodied in the present Treaty? (Shapley 1985: 98). The chief US negotiator explained that it was “inherent in the US concept that fair treatment for all other countries should be provided in order to avoid the interpretation that the group was attempting to monopolize Antarctica for themselves” (Shapley 1985: 98–9). But, of course, other nations were excluded from participating in the negotiations, and in this sense the Antarctic twelve were monopolizing Antarctica. It is a basic principle of international law that states must consent to a treaty rule before they can be held to be legally bound by it. Article 34 of the Vienna Convention on the Law of Treaties rea rms this principle, noting that “a treaty does not create either obligations or rights for a third state without its consent” (Shaw 1991: 579). The US proposal violated this principle, and was quickly abandoned. Though entry to consultative status was costly, some countries were prepared to pay the price of admission. Brazil became the rst country to join the Antarctic club, after it dispatched a used research vessel (purchased from Denmark, a non-consultative party) and a crew of 38 to Antarctica in 1982–83 (Shapley, 1985). Since then, more than a dozen countries have followed Brazil's lead. In 1988, the consultative and contracting parties negotiated a new agreement, the Convention on the Regulation of Antarctic Mineral Resource Activities. This agreement was intended to establish a regime for mineral exploitation, one responsibility of which was “to keep under review the conduct of Antarctic mineral resource activities with a view to safeguarding the protection of the Antarctic environment in the interest of all mankind.” With most countries being shut out of these negotiations, however, it was not obvious that this agreement could legitimately claim to represent the interests of all mankind. For reasons explained later, only six of the thirty-eight Antarctica Treaty parties signed the agreement, and the p. 158 agreement is now almost certainly dead. In its place, the Antarctica Treaty club members negotiated another agreement (the 1991 Protocol to the Antarctic Treaty on Environmental Protection), which banned mineral exploitation for 50 years. This agreement thus postponed the decision of whether to allow mineral Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 18 development or to impose a permanent ban, making Antarctica a World Park. In leaving future options open, the agreement secured the acquiescence of third parties—for now. However, a cloud of illegitimacy still hangs over the Antarctic Treaty system. 6.7.4. Whaling This experience might give the impression that inclusion is the best policy. However, inclusiveness raises problems of its own. The ICRW was intended “to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.” The objective, roughly put, was to reduce the rate of killing in the short run so as to build up the stock of whales, allowing a much larger sustainable catch in the long run. Membership to this agreement, however, was not restricted to the nations actively engaged in whaling, nor did the agreement include any provision for entry deterrence. The treaty's original fteen signatories all had interests in whaling as a commercial activity (Lyster 1985). Today, however, few of these signatories retain an interest in commercial whaling and most of the countries that acceded subsequently (for example, Switzerland) are also non-whaling nations. For this new majority of parties, whaling is an issue of preservation and animal welfare, not optimal sustained yield management. Austria joined the IWC in 1994 to put a stop to whaling. This clash in objectives, not to say values, explains why Iceland withdrew from the agreement in 1992, and why Iceland, Norway, Greenland, and the Faroe Islands established a splinter organization in 1992, the North Atlantic Marine Mammals Conservation Organisation. This new treaty has an altogether di erent constitution. A country can accede to it only if all the existing parties give their consent, “a stringent requirement which re ects the desire to prevent entry by states which do not share a similar desire to allow the resumption of at least some commercial whaling….” (Sands 1995: 437). But though these countries may restrict participation, they cannot easily turn their backs on the claims expressed by the rest of the world. Every country has a potential interest in how whales are treated and in their preservation. The con ict exposed by the Whaling Convention cannot, in the long run, be addressed by a splinter treaty. 6.8. ENTRY INTO FORCE AND MINIMUM PARTICIPATION As shown in the appendix, most multilateral agreements do not come into force until rati ed by a minimum number of countries (of the 297 treaties listed in the appendix, only 9 do not specify a minimum of 2 or greater). Some agreements do not come into force until being rati ed by all the parties at the bargaining p. 159 table, an example being the North Paci c Fur Seal Treaty. Most multilateral treaties (especially treaties concerning global environmental problems), however, x a minimum far short of the total number of negotiating countries. For example, though more than 100 countries participated in the negotiations on the Convention on Biological Diversity, only 30 countries needed to ratify the agreement for it to enter into Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 force. In some cases the countries that must ratify an agreement before it comes into force are named. For example, the International Whaling Convention speci es that the agreement must be rati ed by the Netherlands, Norway, the Soviet Union, the United Kingdom, and the United States, as well as at least one other country, before entering into force. In other cases thresholds are speci ed. The Montreal Protocol would not enter into force until rati ed by at least eleven countries “…representing at least two-thirds of 1986 estimated global consumption of the controlled substances…” (mainly, CFCs). Super cially, the need for minimum participation is almost obvious. It would not be in the interests of a country to be bound by a treaty until enough other states, and in some cases particular other states, were bound by these same obligations. Essentially, the “minimum participation clause” makes the obligations of each of its signatories a (non-linear) function of the total number of signatories. However, the minimum participation level can also serve a strategic purpose. As explained in the next chapter, it allows participation by each country to have a non-marginal e ect on the environmental problem. As shown in Chapter 9, it may also serve to “tip” participation. As indicated in the table in the appendix, the time taken to bring an IEA into force varies enormously. Some agreements never enter into force, while others enter into force immediately. It is hard to generalize. Entry into force doesn't even seem to depend strongly on the minimum participation level. It took 14 years for two of the East African marine treaties to enter into force, though only six rati cations were needed. By contrast, the Framework Convention on Climate Change entered into force in two years, despite having set a minimum participation level of 50. Why might a treaty be negotiated but then never enter into force? The 1988 Convention on the Regulation of Antarctic Mineral Resource Activities provides an illustration. This treaty would only have come into force if rati ed by sixteen of twenty Antarctic Treaty consultative parties participating in the negotiations, one of which was Australia (entry into force also required rati cation by at least ve developing countries and eleven developed countries). Six months after the agreement was open for signature, however, Australia announced that it would not sign the agreement, arguing that mining on Antarctica should be banned. As a claimant nation, Australia's rejection of the treaty was enough to kill it. Later, other claimants sided with Australia (and why not; given Australia's decision, none could gain by clinging to the treaty), and negotiation of an environmental protection agreement was soon underway. As noted earlier, this alternative agreement was adopted in 1991. 6.9. TREATY WITHDRAWAL In addition to having the right not to become a party to a treaty, states also have the right to withdraw from a treaty to which they had previously acceded. This customary right is yet another expression of the principle of sovereignty. p. 160 Withdrawal, like accession, is a formal a air, and in most agreements the rights of accession and withdrawal are contained in separate treaty articles. Usually, multilateral agreements allow a party to withdraw upon giving written noti cation to the depository of the treaty. In many cases, a withdrawal can only take e ect after a suitable period of time has elapsed following the withdrawing party's accession. Some global agreements, for example, require that a country be a party for at least three years before applying formally to withdraw. It also takes some time for an announcement of an intention to withdraw to take e ect. Often a year's notice is required. These restrictions serve to make agreements more stable. They also make countries take their accession decisions seriously, and prevent countries from withdrawing on a whim or in the heat of the moment. Finally, they give the other signatories an opportunity to accommodate the concerns of a disgruntled party. Downloaded from https://academic.oup.com/book/36180/chapter/314603321 by Universitat St Gallen user on 04 December 2023 The threat of withdrawal (like the promise of accession) can be a powerful means of in uencing the behavior of other countries, provided of course that the threat is credible. This is especially so if participation of the country threatening to withdraw is essential to the agreement's success. Indeed, an agreement can completely unravel if a key party withdraws, just as an agreement may never enter into force without a key player's accession. You may recall that Japan's announcement of an intention to with

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