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Citation: 38 Colum. J. Transnat'l L. 465 1999-2000

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Articles

The

Transformational

Model

o

International

Regime

Design

Triumph

of Hope

or

Experience?

GEORGE

W

DOWNS,*

KYLE

W .

DANISH**

PETER

N

BARsOOM***

International

legal

scholars

have

grown

increasingly

interested

in

the

development

and

design

of

international

reaty

regimes.

Recently,

one

particular

design

strategy,

often

referred

to

as

the

Transformational

Approach,

has

acquired

great

currency,

especially

in connection

with

environmental

regimes

where

it has

played

a

major

role

in

the

construction

of the

climate

change

regime.

Regimes

designed

in

accordance

with

the

Transformational

Approach

are

believed

to

generate

increasingly

greater

commitment

and

deeper

cooperation

hrough

process

of

iterative,

state-to-state

negotiation

that

promotes

identity

convergence.

To

achieve

these

effects

advocates

of

the

TransformationalApproach

prescribe

that regimes

be

highly

inclusive,

minimize

the

stringency

of

obligations,

de-emphasize

enforcement

in

favor

ofa

managerial'

approach,

and

utilize

decision-making

rules

requiring

near

unanimity.

*

Professor

of

Politics,

New

York

University;

Ph.D.

University

of

Michigan

(1976);

B.A. Shimer

College

(1967).

Associate, Van Ness Feldman, P.C., Washington, D.C.; J.D. Temple University

School

of Law

(1997);

M.P.A.

Princeton

University

Woodrow

Wilson

School

of

Public and

International

Affairs

(1996);

B.A.

Haverford

College (1989).

Manager,

Mitchell

Madison

Group,

New

York, NY;

Ph.D.

Candidate,

Princeton

University

Department

of

Politics;

B.A.,

Colgate

University

(1992).

The authors

extend their

gratitude

to

Jeffrey

Dunoff

and Eyal

Benvenisti

for their

comments

on

prior

drafts.

All

errors

are,

of course,

the authors

own.

This

article

is

not intended

to

represent

the views

of Van

Ness Feldman,

P.C.,

Mitchell

Madison

Group,

or

their

clients.



COLUMBIA

JOURN L

OFTRANSNATIONAL

LA W

In

this essay

the

authors

argue

that

while the

Transformational

Approach

has some

normative

attractiveness

its

theoretical

underpinnings

are

less

than compelling.

Among

other

problems

its design

characteristics

can

obstruct

a

variety

of

other

processes

that

both constructivists

and

nonconstructivists

alike

believe

can

promote

preference

change

and cooperation.

Moreover

an

empirical

survey

of

international

environmental

treaties

suggests

that regimes

designed

according

to

Transformational

tenets

have

not

experienced

a

significant

amount

of

cooperative

evolution

since

their

initiation

and

of

greater

concern

have

actually

generated

less

cooperative

depth

than non-

Transformational

agreements.

I

INTRODUCTION

7

II

THE

TRANSFORMATIONAL

APPROACH

469

A

Entry

into M

embership

472

B. Diffusion

of

Information

474

C.

Iterations

of

Collective

Deliberation

475

Ill

THE

DESIGN

OF THE

TRANSFORMATIONAL

REGIME

477

A

Number

of

Members:

Maximize

Inclusion

477

B.

InitialObligations:

Establish

Only

Soft

and

Unthreatening

Commitments

478

C. Voting

Rule: Require

a Consensus

480

D.

Compliance

Control:

Manage

Rather

Than

Enforce

Compliance

482

IV

THE FRAMEWORK

CONVENTION

ON

CLIMATE

CHANGE:

THE

ARCHETYPE

O

THE TRANSFORMATIONAL

DESIGN

STRATEGY

488

V

SOURCES

OF SKEPTICISM

493

VI EVIDENCE

FROM A

SURVEY

O ENVIRONMENTAL

TREATIES

503

VII

CONCLUSION

507

Appendix

A:

International

Environmental

Agreements

Analyzed

510

Appendix

B:

Depth

Coding

Rules

514

[38:465



TR NSFORM TION L

MODEL

OF

REGIME

DESIGN

I.

INTRODUCTION

The

Kyoto

Protocol

to the

United

Nations

Framework

Convention

on

Climate

Change'

is the

embodiment

of

what

has

rapidly

become

the

dominant

approach

to the

design

of

multilateral

regulatory

institutions

dealing

with

the environment.

This

approach

has

come

to

be

known

as Transformational.

It

is believed

to

generate

increasingly

greater

commitment

and

deeper

cooperation

through

a

process

of

iterative,

state-to-state

negotiation

that promotes

identity

convergence.

To maximize the benefits

of

this

process,

Transformationalism

prescribes

that

regimes

be highly

inclusive,

minimize

the

stringency

of

obligations,

deemphasize

enforcement,

and

utilize

decision-making

rules

requiring

near

unanimity.

Paradoxically,

these

characteristics historically

associated

in the

minds

of many

with

institutional

ineffectiveness turn

out

to

be

the

very

ingredients

that

ensure

long-term

regime

effectiveness.

According

to

Transformationalists,

it

is

the

weak convention

that

is

most

likely

to

beget

the

strong

regime.

In

this

essay, we

will

examine

the Transformational argument

more

closely

than

has

previously

been

done

in order

to assess

the

extent

to which

its current

status

as

a

universally

applicable

institutional

design

strategy

is justified.

Our

motivation

is

pragmatic:

because

design

choices

made

early

in

the

construction

of

a

multilateral

regime

are difficult

to reverse

and

can

have

far-reaching

implications

once

memorialized

into law,

any

multilateral

design

strategy

should meet

a

high

standard

of

theoretical

justification

and

empirical

proof

before

it

is

aggressively

prescribed.

1

Protocol

to the

United

Nations

Framework

Convention

on

Climate

Change,

Dec.

10,

1997,

37

I.L.M.

32 [hereinafter

Kyoto

Protocol].

2. Examples

of

work

that

is broadly

representative

of

the

Transformationalist

perspective

include

ABRAM

CHAYES

&

ANTONIA HANDLER

CHAYEs,

THE

NEw

SOVEREIGNTY:

COMPLIANCE

WITH INTERNATIONAL

REGULATORY

AGREEMENTS

(1995);

Jutta Bnn~e

&

Stephen

J. Toope,

Environmental

Security

and Freshwater

Resources:

Ecosystem

Regime

Building

91 AM.

J. INT'L

L. 26

(1997);

Marc

A.

Levy

et

al.,

The

Study

of International

Regimes

EUR

J.

INT L

REL.

267,

283 85

(1995);

Patrick

Sz6l1,

The

Development

of

Multilateral

Mechanisms

for Monitoring

Compliance

in SUSTAINABLE

DEVELOPMENT

AND

INTERNATIONAL

LAW

(Winfried

Lang

ed.,

1995);

Martti

Koskenniemi,

Breach

of

Treaty

or

Noncompliance?

Reflections

on

the

Enforcement

of

the Montreal

Protocol 3

Y.B.

INT'L

ENvrL.

L. 123

(1992).

What

we

call

Transformationalism

embodies

a number

of

the

precepts

of

what

Harold

Hongju

Koh refers

to as

transnational

legal

process

theories,

especially

its

emphasis

on the

spillover

effects

of

what

he

refers

to as

horizontal

jawboning

or

state

to

state

negotiation.

Harold

Hongju

Koh,

The

998

Frankel

Lecture:

Bringing

International

Law

Home

35

HouS.

L.

REv.

623 (1998).

2 ]



COLUMBI

JOURN L

O TR NSN TION L

L W

We will

argue

that the elevation

of

Transformationalism

from

a

provocative

theory

of why

state

preferences

converge

to

a general

design

strategy

is

precipitous.

While

internally

consistent,

its

horizontally

oriented design

prescriptions

encompass only

one

of

many

constructivist

processes,

and

not necessarily

the

most

important

one

at the

level of the

nation-state.

Vertical

processes

of identity

integration

that

are not

confined

to the

boundaries

of any

given

institution

promise

to be

equally,

if

not

more, important,

but

they

are

not

necessarily

promoted

by

the

same

design

prescriptions.

Even

more

problematic,

the

Transformational

design

characteristics

can

obstruct

a variety

of other,

nonconstructivist

processes

that both

constructivists and

nonconstructivists

believe

can

promote

preference

change

and cooperation.

We

show

that

there

are cases

where

multilateral

institutions

designed

according to

Transformational

principles

have

not evolved

as advocates

had

predicted,

and

that there

are

other

cases

where

institutions

have

departed

from

these

principles

with

considerable

success.

Even

the Kyoto

Protocol

experience,

which

appears

at first

glance

to represent

a

triumph

of the

Transformational

approach,

is

shown

to

provide

at best

only

ambiguous

evidence

of the

strategy s

effectiveness.

An

empirical analysis

of

a

far wider

range

of

international

environmental

regimes

than

has

previously

been

examined

reveals

little

support

for the

elevation

of

the

Transformational

design

approach

to

its current

status. t

least to

date,

Transformational

design

principles

have

inspired

on average

less

cooperative

evolution

in

the

agreements

that embody

them

than

have

non-Transformational

principles.

Such

findings do

not detract

from the

normative

attractiveness

of

the Transformational design

prescriptions,

or imply

that

there

are

not

situations

where

they

are

highly

effective

in

inspiring

state

preference

change

and

deeper

cooperation.

They

do

suggest,

however,

that

just

as

there

is

no single

reason

why

nations

obey

international

law,

there

is also

no single

explanation

for

why

state

preferences

change

and,

t

least

at the

present

time, no

reliable

technology

for

telling

us what

design

strategy

is

best for a

given

set

of

circumstances.

Any

single

design

strategy

m y

speed

the

evolution

of

cooperation

in some

cases,

but

it

seems

certain

to slow

it

in others.

[ 8: 65



2000]

TRANSFORMATIONAL

MODEL

OF

REGIME

DESIGN

469

II.

THE

TRANSFORMATIONAL

APPROACH

One

salutory aspect

of

the

shift

from

studying individual

treaties

to

studying

international

regimes

3

has been

the

growing

appreciation

that

in

many

issue-areas,

it

is difficult

to fully

analyze

one treaty

in

isolation from

the

other treaties

and

institutions

to which

it

is linked,

in the

sense

that

it

affects or

is affected

by them.

It

would

make

little sense,

for

example,

to evaluate

the

law

of

international

trade

by

studying only

the

General

Agreement

on

Trade

in

Services

(GATS)

4

and

not

the

other

Uruguay

Round

agreements

and

the

decisions

of

the

Dispute

Settlement

Mechanism

as well.

Similarly,

an

analysis

of

the

ozone

regime

would be

incomplete

were

it

to

focus

only

on

the

Vienna Convention

for

the

Protection

of

the

Ozone

Layer' without

also

examining

the Montreal

Protocol

on

Substances

that

Deplete

the

Ozone

Layer

6

and

the

annexes

added

to

the

Protocol

over

time.

7

Such

an

analysis

should

also

probably

include

a

discussion

of

the

role

and

policies

of

the

Montreal

Protocol

Multilateral

Fund,

which

provides

financial

assistance

to developing

country

Parties.

8

The

study

of international

regimes

thus

attempts

to

capture

as

far

as

possible

both

the interaction and the summary

impact

of

multiple

rules and

institutions

in different

policy

areas.

3. In

addition

to

the

scholars

cited

throughout

this article,

see,

e.g.,

Anne-Marie

Slaughter et

al., Iternational

Law

and

International

Relations

Theory: A

New

Generationof

Interdisciplinary

Scholarship

92

AM.

J. INT'L

L.

367

(1998)

(providing

an extensive

bibliography

of

interdisciplinary

scholarship

involving

international

relations

and

international

law, of

which a

great

proportion

consists

of works

examining

regime

issues);

Anne-Marie

Slaughter

Burley,

International

Law

and

International

Relations

Theory: A

Dual

Agenda

87

AM.

J.

INT L

L.

205

(1993);

Edwin

M. Smith,

Understanding

Dynamic

Obligations:

Arms Control

Agreements

64

S.

CAL.

L

REv. 1549

(1991);

Kenneth

W .

Abbott,

Modern International

Relations

Theory:

A Prospectus

or

International

Laisyers

14

YALE

J.

INT'LL.

335

(1989).

4.

See

General

Agreement

on Trade

in

Services,

Apr. 15, 1994,

33

I.L.M.

46 .

5.

See Vienna

Convention

for

the Protection

of the

Ozone

Layer,

opened or

signature

Mar.

22,

1985, T.I.A.S.

No. 11097,

1513

U.N.T.S.

293.

6. See

Montreal

Protocol

on Substances

that

Deplete

the

Ozone

Layer,

opened for

signature

Sept.

16,

1987,

1522

U.N.T.S. 3,

26 I.L.M.

1550

[hereinafter

Montreal

Protocol].

7.

See e.g.

Adjustments

To the

Montreal

Protocol

on

Substances

That Deplete

the

Ozone

Layer,

June

29, 1990,

S.

Treaty

Doe.

No. 102-4

(1991),

30 I.L.M. 537;

Montreal

Protocol

On Substances

That

Deplete

The

Ozone

Layer: Adoption

of

Adjustments and

Amendment by

the Fourth

Meeting

of the

Parties

at Copenhagen,

Nov. 23-25,

1992,

S.

Treaty

Doc.

No.

103-9

(1993),

32

I.L.M.

875 [hereinafter

Fourth

Meeting

of the

Montreal

Protocol

Parties].

8.

See

Charles

E. Di Leva,

International

Environmental

Law

and

Development

10

GEO. INT'L

ENVTL

L.

REv.

501,

510

(1998)

(describing

the Montreal

Protocol

Multilateral

Fund among

other

financial

mechanisms associated

with

international

environmental

treaty

regimes).



COLUMBIA

JOURNAL

OF TRANSNATIONAL

LAW

Examining

regimes

rather

than individual

accords

not only

provides

a broader

view

of the

governing

law at

any one

time in a

given

issue-area,

it

also

calls

attention

to

the process

of incremental

regime development. Thus,

for

example,

much

is

to be

gained

by

examining

how

the Treaty

of

Rome

became

the

European

Community

and

how the

European

Community

metamorphosed

into

the

European

Union.

International

environmental

regimes,

in particular,

have

tended

to progress

through

what has

been

called

a

Convention-

Protocol

Approach,

through

which

participating

states

first negotiate

a framework

convention

consisting

of

decision-making

procedures,

information-sharing

provisions,

and an

initial

set of

substantive

obligations

and

only later promulgate

more stringent substantive

obligations

through

protocols

and/or annexes.

9

This dynamic

of incremental

regime

development

has

sparked

interest

in

examining

regime

design,

the process

by

which

effective

regimes are

built.

Scholars

and

practitioners in

the fields

of

international

law

and

international

relations are

increasingly

analyzing

which

design

characteristics

are likely

to

cultivate

deepening

cooperation

among

the participants

to the

regime

over

time.10

For

international law

scholars, examining

regime

development

means shifting

attention

from

a

consideration of

the more traditional

questions

about the

substantive

law

in a

particular area-e.g.

how the

latest

opinions

of the

International

Court

of

Justice

on nuclear

weapons

affect

the international

law

on the use

of force-to

the study

of

the wider

implications

of

different institutional

arrangements

for

the evolution

of

cooperation-e.g.

how will this

membership

rule, or

this

voting

rule,

or

this compliance

mechanism

affect

the long-term

development

of

this

regime. International relations

scholars,

for

their

part, have

for some

time been

studying

why

and how states cooperate

with

one

another,

but

only

in the past

decade

have

they become

interested

in

whether

different

kinds

of

(legal)

institutional

arrangements

promote

different

outcomes

in the

long

term.

Thus,

they

now

are

interested

in the

same sorts

of

questions as the

international

lawyers who

are

studying

regime

design.

9.

See

Edith

Brown Weiss,

InternationalEnvironmental

Law: Contemporary

Issues

and

the Emergence

of

a

New

orld

Order

8

GEO.

L J

675,

687-688

(1993).

10. See

e.g. Anne-Marie

Slaughter

et

al., supra

note

3, at 385-86

(identifying regime

design

as an

element

of

a

collaborative

research

agenda

for

international

law

and

international relations

scholars); see

also Robert

0

Keohane,

International

nstitutions:Can

Interdependence

Work?

FOREIGN

POL'Y

82, 89

(Spring 1998)

(asserting

that

the

fundamental

question

scholars

[studying

international

institutions]

wish

to answer

concerns

effectiveness: What

structures, processes,

and practices

make international

institutions more

or

less

capable

of affecting

policies-and

outcomes-in

desired

ways? ).

[ 8: 65



2000]

TRANSFORMATIONAL

MODEL

OFREGIME

DESIGN 7

One

of the

major

intellectual

products

of this

new

orientation

has been

the

creation

and wide

diffusion

of

Transformational

design

strategy.

Its goal

is to create

an arena for interactive

discourse

among

member

states that

triggers

a self-reinforcing

dynamic

that

will, in

turn,

lead

states

to

pursue deepening

cooperation

and increasingly

ambitious

commitments.

Advocates

frequently

stress the

importance

of

four regime

design

principles

that

they believe

create

the

type of

context that

best

facilitates

this process

of

transformation:

(1)

The number

of

member

states participating

in the

regime

should

be universal

or

nearly

so;

(2) The

nature

of initial

commitments

and

obligations

should

be

as

unthreatening

as

possible, consisting

of

few,

if any,

specific performance

targets

or

timetables;

in many

cases,

soft law

or non-binding

norms

are

preferable

to hard

law;

(3) Rules for

decision-making

should

require

near

unanimity;

and

(4)

Processes

employed

to

maintain

compliance

should

emphasize

dispute

avoidance and

negotiated

compliance management to the exclusion

of

more

coercive enforcement

mechanisms.

While there

is

some

ambiguity

and

variation

in descriptions

of

the

process

by

which Transformational

regimes

foster

progressively

stronger

commitments

among their

members

to

increasingly

ambitious

regulatory

goals,

there

are some broad

themes

that

run

through

much of the

literature.

Participation

in Transformational

regimes

is

believed

to induce

a mutually

reinforcing

series

of

normative

and cognitive shifts

among member

states

because

states

in

effect

are

socialized

by

the regime

in such

a way that

their preferences

and even

their underlying

values

change. Without

any

change

in the

underlying

distribution

of

power

or wealth,

and without

coercion,

more

environmentally

regressive

member

states

are

led

to

discover

that their

interests

lie in addressing

a given environmental

problem.

Thus,

Transformationalists

emphasize

the

active

role of

their

regimes in modifying

preferences,

generating

new

options,

11

Peter M.

Haas

Jan Sundgren,

Evolving International

Law:

ChangingPractices

of

National

Sovereignty in

GLOBAL AccoRD

401,

416 (Nazli

Choucri ed., 1993).

12. See

Ronald Mitchell,

Implementationof

theFCCC-Compliance

ffectiveness

and

Institutional

Design in INTERNATIONAL

RELATIONS

AND GLOBAL CLIMATE

CHANGE

Potsdam

Institute for

Climate

Impact Research,

Report

No. 21,

70-72

Detlef

Sprinz

Urs

Luterbacher eds.,

1996); see also

Thomas Gehring, International

Environmental

Regimes:

Dynamic

SectoralLegal

Systems

1

Y.B.

INT'L ENvTL. L.

35,

37

(1990).



COLUMBIA

JOURNAL

OF

TRANSNATIONAL LAW

persuading the parties

to

move toward increasing compliance

with

regime norms, and

guiding the evolution

of the normative structure

in

the direction

of

the

overall

objectives of the regime.

13

Case

descriptions

of

how this socialization

occurs

within

Transformational

regimes

typically cite the importance

of three mechanisms of

influence:

(1)

the

act of accepting membership

to

the

regime; (2)

diffusion

of information within the

regime;

and

(3) repeated iterations

of

collective deliberation by regime

members.

A Entry intoMembership

The first

important element

of

the Transformational

process

occurs in connection

with a

state s entry into a regime.

Some may

have difficulties seeing

how the act of collectively

agreeing

to

work

toward

the

distant realization

of

a set

of

abstract

principles and goals

will by

itself

make

ratifying

states

more likely than non-ratifying

states to

alter

their behavior. However, Transformationalists

contend

that the mere

act of

joining

an institution or

regime

shap[es]

the

identity

(and therefore the interests)

of

actors and, in the process,

influenc[es]

the

way

actors

behave

as

occupants

of

the

roles

to

which

they

are assigned.

14

Even

at

a low

level of

initial commitment,

advocates argue,

member

states

are engaged,

15

addressing

the

problem

in a way

that non-member

states

would not.

General

and

'soft'

as

this

initial

commitment

may

be,

it is

sufficient

to

start

a

member down the

Transformational path.

According to

Levy:

Effective

institutions begin with commitments

merely to

norms

and

principles, and either lack

regulatory

rules

or possess

only

very weak

ones.

This

is

exactly as it

should be. If

states

waited to form

institutions until there

was enough concern and

scientific understanding

to adopt

strong rules, they

would wait much too long. Institutions are needed

13.

CHAYES CHAYES, supranot 2, at 229.

14. Levy et al., supra note 2;

see

also

Andreas

Hasenclever et al.,

Interests Power

Knowledge: The

Study of International

Regimes

40

MERSHON

INT'L

STUD.

REv. 177,

211

(1996) (asserting

that regimes operate

as imperatives, requiring

states

to behave

in

accordance

with their norms

and

rules,

but they

also help create

a

common

social

world

for

interpreting the meaning

of

behavior

15 See Weiss, supra

note 9, at 688.

[ 8: 65



2 ] TRANSFORMATIONAL MODEL OFREGIMEDESIGN

473

early on

to

help create the conditions

that

make strong

rules

possible.16

Agreeing

to

join

a

regime

gives

the issue

higher

priority

on

the

member

state s

policy agenda and

confers authority upon the

domestic officials responsible

for

dealing

with

it. It encourages

domestic

constituencies

to view the

issue not simply

as

a priority for a

limited

number

of actors

in the international community

but

also as a

common

concern

of

humankind.

1

7

Bodansky

observes

that

the

establishment of the multilateral regime creates

common

expectations

which,

as

the

process builds

momentum, may

draw

along even reluctant states.

18

For

example, at

the

time the

Convention

on

Long

Range

Transboundary Air Pollution (LRTAP)

9

was signed, only a few Nordic countries were concerned about

acid

rain.

Most

other

member states

had

signed the Convention

primarily

as a vehicle

for supporting

East-West

detente by promoting

cooperation in a peripheral policy area. Yet, Transformationalists

assert, the internationalization of

the problem

helped to amplify

concern, spurring the parties to commit to

increasingly

ambitious

obligations

to reduce transboundary

air

pollution.

2

One

of

the more notable agenda-setting

effects

of

joining

the

Transformational

regime

includes

the

member

state s

creation

of

a

new domestic bureaucracy to manage implementation of regime

obligations. Transformationalists insist that these bureaucracies

can

contribute

to

a

state s normative development because the

bureaucracies

tend to

perceive the

task

of addressing the

environmental

problem as part of their

core

mission.

More often

than not, observe

Levy, Young, and

Zilm agencies

charged with

the implementation

of regimes

come

to treat the fulfillment of this

goal

as

part

of

their

organizational

mission

to be

pursued without

constant questioning

of

the social consequences flowing from the

rules in question and defended

in dealings with other agencies

pursuing their own missions.

21

Indeed, narrow

social consequences

16.

Marc A. Levy et al., Improving the

Effectiveness

of International

Environmental

Institutions n INSTrrUTIONS FOR THE EARTH 397, 413

(Peter

M. Haas et

al

eds., 1993).

17.

See

e.g.

United Nations Framework Convention

on Climate Change,

May 9,

1992,

Preamble,

S.

Treaty

Doe. No. 102-38 (1992), 31 I.L.M. 851. [hereinafter UNFCCC];

Convention on Biological Diversity, June

5,

1992,

31

I.L.M.

822 (1992).

18. Daniel Bodansky,

The

Emerging Climate Change Regime 20 ANN

REV NERGY

&

ENV'T 425,

432

(1995).

19.

See

Convention on Long-Range Transboundary Air Pollution, adopted Nov. 13,

1979, T.I.A.S. No. 10541, 1302 U.N.T.S. 217.

20. See

Levy

et

al.,

supra

note

16, at 400.

21.

Levy et

al.,

supranote 2, at 305.



COLUMBIA JOURNAL

OF

TRANSNATIONAL

L W

are

downplayed:

It

is the authoritativeness of

regime

rules

and

activities that

triggers the behavioral

response rather

than some

calculation

of the anticipated

benefits and costs

associated

with

different

options

available

to

decision-makers.

2

B. Diffusion

of Information

The production and

diffusion of information

is

the

second

vital element of

the Transformational process. Transformationalists

emphasize that

the high degree

of

scientific

uncertainty

surrounding

most

environmental

problems

means

that

states

often

lack well-

grounded

calculations

of the costs

and benefits

of action or

inaction.

New information

that

they have

reason

to

trust

can give

them

both

the

reason

to become engaged in

solving an environmental

problem and

the

technical means

to do

so.

Thus, the diffusion

ofknowledge

within

the boundaries of a

regime allows

the

more

progressive states to

animate

the

more

regressive

ones.

Without institutional

intervention,

assert Haas,

Keohane, and Levy,

knowledge that

is

relevant

to policy making remains

trapped within

those nations active

in

scientific research.

Knowledge

that

is

so

generated commonly

diffuses

quite

slowly, especially to

countries

of

low concern,

where it

is often

most needed.

23

At least

as described

in


literature,

the process set

in

motion by


regime

is

both reliable

and relentlessly progressive.

Thus, Brunn~e

and Toope

assert in the context

of environmental

agreements:

To

the extent

that

institutional

structures take on

the collection

and evaluation of

data,

the

emphasis will

shift from state

interests

to common

ecological

interests,

from short-term to

longer-term assessments.

'24

Transformational regimes

also

facilitate

and

further a

learning

process

by empowering what

are

known in

the


literature

as epistemic

communities.

These

are networks of

professionals

with recognized

expertise

and competence

in

a

particular

domain

and an authoritative

claim

to policy-relevant

knowledge

within that

domain.

25

Transformational

regimes magnify

22.

Id.

23. Levy

et al., supra

note

16, at

412.

24. Brunne

& Toope, supranote

2, at 43.

25 Peter

M. Haas,

Introduction:

Epistemic

Communities

and International

Policy

Coordination

46 INT'L

ORG.

1,

3

(1992). Brunn6e and

Toope suggest

that

international

lawyers themselves form

epistemic communities

because they promote

values through

specific principles,

such as ecosystem

principles which can guide

the evolution

of

regimes and

ultimately

gain normative significance. Brunn6e

&Toope,

supranote

2, at 34.

[ 8: 65



TRANSFORMATIONAL

MODEL

OF

REGIME

DESIGN

the political

power of epistemic communities by exposing

diplomats

to experts

whose views are

more likely

to

be taken seriously than

those

of

politicians.

In addition, the multilateral

institution

also

empowers epistemic

communities

more

directly by giving

their

members posts

in

regime bodies

such as scientific assessment panels.

Thus, Peter Haas maintains, member

states of the Mediterranean

Action

Plan broadened the scope of the regime

to

encompass

more

sources and forms

of pollution after transnational

networks of

scientists and

other

experts

gained power

within the regime.

26

The

Intergovernmental

Panel on

Climate Change

(IPCC),

a scientific

body

established in 1988 by the

United

Nations Environmental Programme

and

the

World

Meteorological Organization,

is

also

credited

with

having

a

powerful effect on

both policymakers and the general

public

and

providing

the basis

for

negotiations within

the

climate change

27

regime.

C. Iterationsof

CollectiveDeliberation

Transformationalists emphasize

in particular the third

component

of the Transformational process:

the

power of

iterated

dialogues that occur

in

negotiating

rounds, conferences

of

the parties,

and

other regime-sponsored fora.

This ongoing collective

deliberation

inspires member states

to

begin to view the

world and

their role

in

a new way.

Through the repeated

iterations of

negotiations

and meetings, norms

gradually take

more

determinate

form

and

become

standards against

which

state

behavior is judged

and justified.

In

addition to promoting

the convergence of interests

and the evolution

of

consensus, this process

also

serves

to

give

more

content

to a

multilateral regime s

goals

and

to

increase the likelihood

that

the

constituent

states

will view

the

collective

outcome

as

legitimate.

29

26.

See Peter

M. Haas,

Do Regimes

Matter?

Epistemic

Communities

and

MediterraneanPollution

Control

43

INT L ORG.

377, 397-98

(1989).

27. See ORAN YOUNG, INTERNATIONAL

GOVERNANCE: PROTECTING THE

ENVIRONMENT

IN

A STATELESS

SOCIETY

39-42 (1994);

see

also Bodansky,

supranote 18,

at 448.

28.

See CHAYES CHAYES, supra

note

2,

at

123

(asserting that [t]he discursive

elaboration and

application of

treaty

norms

is

at the

heart

of

the

compliance

process. );

see also FRIEDRICH

KRATOCHWIL,

RULES, NORMS,

AND

DECISIONS

(1989).

29. See CHAYES

CHAYES supranote 2, at 119 (observing that


are conducted in large part through diplomatic

conversation-explanation

and

justification,

persuasion

and dissuasion, approval

and

condemnation

and,

in such

discourses, [i]t

is

almost

always a

good argument for

an action

that it

conforms

to the applicable

legal

norms,

and against, that it departs

from

them. ).

]



COLUMBIA

JOURNAL

OF TRANSNATIONAL

LAW

The details of the

process by

which collective

deliberation

leads to normative

change

are

usually

left

unspecified.

But one

important

aspect of

the

process

is that it often

puts

regressive,

potentially law-violating

states on

the

spot,

forcing

them

both

to

present

justifications

for

their positions

and

to confront

the

achievements of more

ambitious

states.

3 °

In describing the

experience

of

LRTAP,

Levy draws the

analogy between

the

Transformational

regime

and a

social organization,

contending

that

meetings

in which

new emission

reduction

targets

were discussed

embarrassed

laggards

in

the

way

that

a

club s fundraising

tote-board

embarrasses

members

who have not yet

given

at the office. '

Targets

adopted

by

the

most

committed members became

a

normative register,

declaring

what

was legitimate

and

setting

standards for

what

responsible

members

should

do, thereby

imposing

a

kind

of

peer

pressure on

the more

recalcitrant

member

states.

32

Collective deliberation

also

facilitates

the operation of

epistemic

communities

by fostering

an atmosphere

of

consensus-

building,

free

of

any expectation

that

the

outcome of the

process

must

be

the

establishment

of strong

binding

obligations.

In

such

a setting,

epistemic

communities

can

depoliticize

the

identification

of

problems

and

priorities

and

thus make

crucial

contributions

to

the

substantive

evolution

of

the

regime.

33

In sum,

for the

Transformationalist,

the

processes

of

entry

into

membership,

production

and

diffusion

of information,

and

collective

deliberation

can operate together

to

make the

multilateral

institution

a

kind

of

hothouse

in which interests

change

and

agendas

are

altered

in

the

direction of

a greater

commitment

to

address

environmental

problems.

30.

See

Edward

Parson, Protectingthe

zone

Layer

in INSTITUTIONS

FOR

THE EARTH,

supra

note

16,

at

64.

31.

Marc

A. Levy,

European

Acid Rain:

The

Power

of

Tote-Board Diplomacy

in

INSTITUTIONS

FOR TH EARTH, supra

note

16, at 75

32

See

id.

at

77;

see also

THOMAS

M.

FRANCK,

F MRNESS

IN

INTERNATIONAL LAW

AND

INSTITUTIONS

7

(1995) (arguing

that international

obligations

are

rooted in the notion

of

community).

33. Brunn~e

Toope,

supra

note 2,

at 43;

see

also

Eyal

Benvenisti,

Collective

Action

in the Utilization

of

Shared

Freshwater:

The Challenges

of International

ater

Resources

Law

90 AM. J.

INT'L. L. 384

(1996)

(observing

that

the

interaction between

scientists and

low-level officals

in information

gathering and

exchange tends

to depoliticize

cooperation

and to break down

political

barriers to it. ).

[38:465



TRANSFORMATIONAL

MODEL OFREGIME

DESIGN

II. THE DESIGN OF THE

TRANSFORMATIONAL REGIME

Curiously, there

is

far more

consensus

regarding the basic

design properties

that will

permit

a multilateral institution to achieve

its transformational potential than

about

how


process

operates. The literature generally

emphasizes

four

key design

specifications

as

prerequisites for

an effective

Transformational

regime, and advocates imply, at the least,

that

regimes designed

according

to

other specifications

are

unlikely to be

effective.

A Number ofMembers: Maximize Inclusion

For advocates of

the Transformational Approach,

environmental issues requiring cooperation among numerous

states

can be

managed only if

all of

the stake-holding states-even

those

with

apparently no

interest

in

addressing the

problem-are

incorporated into the regime at

the outset. History reveals the

effectiveness of

these highly inclusive regimes, they argue, and

moreover the nature

of

the international

legal

system

essentially

forecloses alternative approaches.

Every

state

holding

a potential stake in

the solution

to the

environmental

problem must be

incorporated. Lang's

commandment

for

policy-makers

is

that

they

should

seek

the

broadest

possible acceptance by

states.

4

In relation to

participation, Kimball similarly

asserts, the preferred option for

treaty

management

regimes

is

that they

include all nations

contributing

to

the problem. Implicit in this prescription,

of

course,

is

the assumption

that a regime designed

to

consist initially

of

a

small

number

of

committed members and then to

draw

in other

states over

time cannot

possibly

be effective.

The

rationales for

this

prescription

are varied. In

part,

it

reflects

nothing more than

a

high level

of confidence in the

effectiveness

of Transformational regimes. Given

that

belief the

sooner a state

can

be made a member the better. Transformationalists

also stress

the fact that highly participatory regimes transform

better-that

the

socialization process at the heart

of

the model

works

better as

the membership

of

the regime more closely

approximates the

34.

Winfried Lang, Diplomacy and

InternationalEnvironmental Law-Making: Some

Observations,

3 Y.B.

INT'L ENVTL. L. 108, 116 (1992).

35. Lee A. Kimball, Towards

Global

Environmental Management: The

Institutional

Setting,

3 Y.B. INT'L

ENVTL. L.

18,

30 (1992).

]



COLUMBIA

JOURN L

OF

TRANSNATIONAL

LAW

fall

membership

of the international

community.

As

with any

social

organization,

a member

is more

likely

to

internalize

the mission

of an

institution

if she

sees

all her

friends

and neighbors

are a part

of it. As

the member

comes to

perceive

the club s

mission

as a common

concern

of

the community,

she comes

to see

fulfillment of her

membership

obligations

as

intimately

linked to her standing

in

the

wider community.

36


emphasize that

obligations

emanating

from

regimes

with

global

membership

have

greater

legitimacy

and

authoritativeness,

qualities they

believe

are

the

sine

qua

non

for

establishing

legal

norms

with

which

states

will

comply.

37

Inclusive

regimes

permit

leaders

to

apply

community

pressure

on

their

members

to cajole

laggard

states into

increasing

their commitment

to addressing

a

problem.

38

In

this way, they

operate

to fulfill

a

fiduciary

role on behalf

of the environment.

39

Bimie and

Boyle

maintain that smaller

regimes,

by

contrast,

are likely to

take

the

form of

users'

clubs

that

further

only narrow

and

usually

environmentally

unfriendly

interests.

4

Institutions

whose

membership

is

too

narrowly

drawn,

they argue,

are

more

likely

to

legitimize pollution

or

the

over-exploitation

of

resources than

to

tackle

them.

41

B. Initial

Obligations:

Establish

Only Soft

and

Unthreatening

Commitments

The

second

design

prescription

advanced

by


is that negotiators

initially

should

establish

an

accord-a

non-binding

declaration

or a framework

convention-

containing only

the

softest, most unthreatening

commitments.

Indeed,

soft

law

is

usually

preferred

and

premature

legalism

is

eschewed.

Lang, describing

the

model framework

convention,

asserts

36.

See e.g. CH YES

&

CHAYES,

supra

note 2, at 27. Chayes

&

Chayes

have proposed

the emerging

existence

of

a New Sovereignty,

a

condition

in

which

states

realize

their

sovereignty-their

very

identity-only

through

full participation

in

the

expanding

web

of

international

regimes.

They argue

that [s]overeignty,

in

the end, is status-the

vindication

of the

state s

existence

as a member

of

the

international

system.

Id.

37.

See

Brunnie

& Toope,

supra

note 2, at 32,

quoting THoMAs

FRANCK, FAIRNEss

IN

INTERNATIONAL

LAW

AND INSTITUTIONS

supra

note

32;

THOMAS FRANCK,

THE

POWER

OF

LEGITIMACY

AMONG

NATIONS (1990).

38. See

PATRICIA

W .

BIRNIE &

ALAN E.

BOYLE, INTERNATIONAL

LAW AND

THE

ENVIRONMENT

175

(1992).

39.

Id.

40.

See

id.

41.

Id. at 178.

[ 8: 65



TR NSFORM TION L

MODEL OFREGIME

DESIGN

that as

a

rule, it

does not

contain specific obligations,

such

as

pollution

emission

reductions

by a certain date,

nor does it

contain

detailed

prescription

of

certain

activities.

'42

International

lawyers

must

conquer their instinct

to generate

seemingly binding

norms,

rather than

regimes that

may be facilitative

initially, but

can help to

promote real

normativity in the

long term.

43

The early

establishment of

weak rules

promotes the

Transformational

process in several

ways.

First

and perhaps

foremost, soft

commitments

induce

maximum

participation

by

reducing the

price of admission

and therefore

enticing even the

least

committed

members to join

the regime.

Only

as

members

can

they

be

exposed

to

its

mechanisms

of

influence. Willingness

to soften

obligations

is advisable,

according

to Lang, because

it opens

the

way

for

wider

acceptance of

a treaty.

'


acknowledge that

accommodating

all parties, including

those that

have

little interest in addressing

the problem,

will produce

an

initial

declaration

or

convention

reflecting only the weakest

degree

of

commitment, the

lowest common

denominator.

However,

for

Levy,

LRTAP

is proof of the

ultimate power

of this strategy

of

accommodation:

LRTAP was

established as

a weak institution,

initially

oriented only

toward scientific research

and ambiguous

principles.

Out

of

weakness

came strength,

however.

Weak

rules

permitted

strong consensus-building

powers,

whereas

strong

rules would

have generated

hostility

on the

part

of

governments ...

[S]keptical

governments

felt

unthreatened by

LRTAP

even

as its

scientific

working

groups resolved the uncertainties

in

favor

of taking

action. Today

these

governments

embrace

what

they once fought

and accept the need

for

action.

4

'

Handl

makes similar

claims for

the

strategic value

of starting

with weak commitments.

He argues

that abundant

and well-known

42.

Lang,

supra

note

34, at 119

(emphasis added).

43.

Brunn~e Toope,

supra

note

2,

at

41

(noting that other treaties in which lawyers

sought

binding substantive rules

prematurely tended to

polarize positions

and

result

in

normative

stagnation. ).

44. Lang,

supra

note

34, at 116; see also

BiRNIE BOYLE, supra

note 38, at 27

(observing that

soft

law s

great advantage

over hard law

is

that, as

occasion demands, it

can..,

enable

states

to take

on obligations that

otherwise

they would

not,

because

they

are

expressed

in vaguer terms

....

.

45.

Levy,

supra

note

31,

at 76 .

2000]



COLUMBIA

JOURNAL

OF

TRANSNATIONAL

LA

W

evidence

exists

that

soft law

declarations such as the Stockholm

Declaration

and the World

Charter for Nature

are effective catalysts

in the development of

ambitious binding

commitments.

4

6

Like

Levy,

Handl

asserts that weak

rules have the strategic

value of luring

laggards into the

regime. In this

sense, he

concludes, soft law

is

the thin end of

the normative wedge

of international

environmental

law,

perhaps

the

Trojan

Horse

of

environmentalists.

47

Not only

softness,

the

Transformationalists contend,

but

also

generality and

vagueness

are

virtues

of these initial

commitments.

Though vague obligations

permit wide variances

in implementation

by

member

states,

they

also promote the

ongoing dialogue that

transforms and socializes the

member

states

toward more

progressive

normative

development.

Imprecise rules

are

thus constructively

ambiguous;

48

they prevail on the

parties to negotiate.

'49

Discussing

the formation of shared

freshwater

regimes,

Benvenisti

observes

that

an

indefinite rule leaves room for

negotiations

during which

each

side could develop

its own interpretation

of the

standard.

0

Precise

rules,

by contrast,

polarize the parties

and

discourage the consensus

building

at the heart

of the Transformational

process.

Here

again,

generality

promotes maximum

participation,

whereas

more definite

rules

prevent

many

riparians--clear

winners

or clear

losers-from

entering the negotiation

room.

51

C.

Voting

Rule:

Requirea Consensus

The Transformationalists

emphasize the principle

of near

unanimity

in decision-making

within

a

regime, with

majority voting

strongly discouraged.

The emphasis

on

consensus

decision-making

has

two

justifications: it

is a

fundamental

norm of international

law;

46. Gfinther

Handl, Environmental Security

and Global

Change: The

Challenge

to

International

Law 1

Y.B. INT'L

ENVTL.

L.

3,

1990).

Handl s

list

of

catalytic soft law

declarations includes

the

Stockholm Declaration on

the Human

Environment, in Report

of

the

United Nations

Conference

on

the Human Environment,

June 5-16 1972,

U.N. Doc.

AICONF.48/13

(1972),

reprinted

n 11 I.L.M. 1416

(1972);

and

World Charter for Nature,

U.N.

GAOR, 37th

Sess., Supp. No. 51

U.N. Doc. A/37/51 (1982).

See also ANDRt

NOLLKAEMPER,

THE LEGAL REGIME

FOR

TRANSBOUNDARY

WATER POLLUTION 246 (1993)

(discussing the functions

of

non-legal rules ).

47.

Handl,

supra

note 46, at

8,

quoting

Lang

Die

Verrechtlichung

des internationalen

Umweltschutzes

22 ARCHIv

ES

VoLKERREcHTs 283, 3 3

(1984).

48. Bodansnky,

supranote 18,

at

429.

49.

Benvenisti,

supra

note

33,

at 402.

50.

d

51.

Id.

[38:465



TRANSFORMATIONAL

MODEL

OF

REGIME

DESIGN

and

the

regime

as

an agent

of

socialization

demands

it.

On

the

first

point,


see

consensus

decision-making

as

compelled

by

the

broader

international

legal

order:

a system

largely

based

on

consent and

unsupported

by

centralized enforcement. As

Gehring

asserts:

[b]ecause

the

international

legal

system

lacks

a

centralized

authority

for

the

creation

and

enforcement

of

law,

consensus,

at

least

among

the

most

important

actors,

is necessary

for

the

creation

of

new

rules

or

international

law

and

their

adaptation

to

changing

conditions.

5

The

other

justification

for

a

consensus

rule

is that

the

principal

activity

of

a

Transformational

regime

is to

bring

together

all

stakeholding

states

within

the

regime and

build

a consensus

for

cooperative

policy

within

the

Transformational

regime.

Again

Gehring

affirms

the

position

that

law

making

within

international

environmental

regimes

is a

quest

for

consensus

53

and

that

[o]rganizing

the

process

to

shape

consensus

is

the

most

important

operative

function

of

such

regimes.

4

Since

the

Transformational

process

relies

on

broad

participation

in

iterated

discussions

and

information

sharing,

the

consensual

orientation

is necessary

to

give

a

voice

to

all

states

with

a

stake

in

the

environmental

problem.

Precisely because these institutional

structures

lack independent

power

and

operate

through

consensus,

conclude

Brunn6e

and

Toope,

they

have

been

able

to promote

continuous

dialogue

and

a

gradual

merging

of

positions

among

the

parties.

Young

comes

to

similar

conclusions.

His

institutional

bargaining

model

relies

explicitly

on

a consensus-oriented

voting

rule;

a

requirement

for near

unanimity

provides

a

necessary

incentive

to

put together

packages

of

provisions

that

are

acceptable

to

as

many

of

the

participants

as possible.

55

Agreements

are

effective

only when

all

the

major

parties and

interest

groups

come

away

with

a

sense

that

their

primary

concerns

have

been

treated

fairly.

56

Consensus

signals

that

the

process

has

been

52.

Gehring,

supra

note

12,

at

38;

see

also

Lang,

supra

note

34,

at 120

(arguing

that

evolution

of

the regime

cannot

proceed

faster

than

that

level

dictated

by

the

permissive

consensus

of the

parties).

53.

Gehring,

supra

note

12,

at 37.

54

Id

at 8

55.

Oran

Young,

Negotiating

an International

Climate

Regime:

The

Institutional

Bargaining

or

Environmental

Governance

in

GLOBAL

AccoRD

supra

note

11 at

431-32;

see

generally

Oran

Young,

The

Politics

of International

Regime

Formation:

Managing

Natural

Resources

and

the

Environment

43

INT'L

ORG.

349

(1989).

56.

YOUNG,

supra

note

27, at

109.

2000]



COLUMBIA

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OF TRANSNATIONAL

LAW

concluded

and

that

the rules

that

have

been

promulgated

will take

on

the

necessary

legitimacy

to

promote

long-term

cooperation.

7

D

Compliance

Control:

Manage

Rather

Than

Enforce

Compliance

Another

pillar

of the

Transformational

Approach

to

regime

design

is

that

compliance

should

be managed

rather

than

enforced.

8

More

coercive

and

adversarial

mechanisms

such

as adjudication

procedures

and

multilateral

sanctions

are

considered

to

be

unnecessary

and,

worse,

counter-productive.

Adherents

of the

Transformational

Approach

start

from

the

assumption

that

states

have

a propensity

to

comply

with

their

treaty

obligations.

9

Reviewing

enforcement

and

the

success

of

international

environmental

law,

O Connell

concludes

that

[i]nternational

law

is

not

widely

disobeyed;

compliance

is achieved

despite

the

lack

of domestic-type

enforcement

institutions.

Indeed,


insist

that

non-compliance

where

it does

occur,

is

only

rarely a

product

of

defection.

Deliberate

cheating,

they

argue,

is

an

unusual

event. Only infrequently,

maintain

Chayes

and

Chayes,

does

a

treaty

violation

fall

into

the

category

of willful

flouting

of

legal obligations.

Non-compliance,

they

stress,

has

three

common

causes.

The

first

is

the

prevalence

of ambiguous

and

vague

rules

that

almost

invariably

leave

ample

room for

reasonable

differences

in

57

See

Brunn6e Toope,

supra

note

2,

at

32;

see

also

FRANCK,

THE POWER

OF

LEGITIMACY

AMONG

NATIONS,

supra

note 37.

58

See CHAYES

CHAYES,

supra

note

2, at

3;

see

also

George

W.

Downs

et al.,

Is

the

Good

News About

Compliance

Good

News About

Cooperation?

50

INT'L ORG.

379

(1996);

George W.

Downs,

Enforcement

and

the

Evolution

of Cooperation

19 MICH.

J. INT'L

L. 319

(1998);

Kyle W.

Danish,

he New

Sovereignty:

Compliance

with International

Regulatory

Agreements

37

VA. J.

INT L

L.

789

(1997) (book

review).

59. CH YES

CHAYEs,

supra

note

2.

Oft-cited

in

Transformational

literature

is

Henkin s

famous

assertion

that

almost

all nations

observe

almost

all

principles

of

international

law

and

almost

all

of

their

obligations

almost

all

of the

time. LoUIs

HENKIN,

How

NATIONS

BEH VE

47

(2d

ed.

1979).

60.

Mary

Ellen

O Connell,

Enforcement

and

the

Success

of

International

Environmental

Law

3

IND. J.

GLOBAL LEG L

STUDIEs

47, 50

(1995).

Some recent

studies

reveal

a more

complicated

picture

of compliance

rates.

In a

study that

looks

at

the

compliance

rate

of

eight states

in

connection

with

five treaties,

Weiss

and Jacobson

find

that

compliance

rates

vary

substantially

across

treaties

and

across

states, with

developed

democracies

often

doing far

better

than

developing

or

nondemocratic

states.

See

EDrrHi

BROWN

WEISS

HAROLD

K. JACOBSON,

ENGAGING

CouNTREs

511 1998).

[38:465



TRANSFORMATIONAL

MODEL

OF

REGIME

DESIGN

interpretation

and

resulting

state

behavior.61

The second

is

the

common

and

usually

unavoidable

time

lag

between

fundamental

reform

and

performance.

A

long-term

change

of

values

and

interests

does

not

take

place

overnight

so

progress

is

necessarily

slow

at first.

62

The

third

stems

from

the

lack

of

technical

or

administrative

capacity

to implement

complex

environmental

regulation.

States

may

want

to

comply

but they

may

not

always

be

able

to

do

so

until

the

resources-

in

the

broadest

sense

of

that

term are

available.

63

Such

sources

of

non-compliance

are

not

particularly

blameworthy.

Why

punish

state behavior

most

accurately

characterized

as

non-compliance

without

wrongfulness ?

6

Adherents

of

the Transformational Approach

are

therefore

particularly

critical

of the

preoccupation

with

sanctions

evinced

by

colleagues

in other

areas

of

international

law

and

international

relations

and

by

environmental

NGOs.

65

Not only

are

sanctions

inappropriate,

they

argue,

but

they

are

also

liable

to

do

more

harm

than

good

by alienating

and

polarizing

member

states.

Moreover,

the

situation

is

exacerbated

by the

fact

that

only

the

most

powerful

states

can

organize

a

multilateral

sanctioning

response

and

that

such

successful

results

as

there

are

tend

to be

temporary.

6

6

61.

See

CHAYES

&

CHAYES

supra

note

2, at 10 12.

62. See

id.

at

15 17;

see

also

Abram

Chayes

& Antonia

Handler

Chayes,

djustment

and

Compliance

Processes

n

International

Regulatory

Regimes

in

PRESERVING

THE

GLOBAL

ENVIRONMENT

280

(Jessica

Mathews

ed.,

1991).

63.

See CHAYES

& CHAYES,

supra

note 2,

at

13 15.

64.

Martti

Koskenniemmi,

supra

note

2,

at

145.

65.

Chayes

&

Chayes

attribute

this

preoccupation,

in part,

to

a

prevalent

criminal-law

like

model

of

international

law that emanates from a misconceived analogy with domestic

law

models:

[T]he

ongoing

pressure

for

treaties

with

teeth

reflects

an

easy

but

incorrect

analogy

to

domestic

legal

systems,

where

formal

sanctions

imposed

by

the

coercive

power

of

the

state are

thought

to play

an essential

role in enforcing

compliance

with legal

rules.

Public

discussion

of

existing

and

proposed

treaties

is

often

conducted

in

terms of

what we

have

elsewhere

called

the

criminal

law

or

law

enforcement

model

of

treaty

implementation.

CHAYES

&

CHAYES,

supra

note

2, at

31,

citing

among

others

Abram

Chayes

&

Antonia

Handler

Chayes,

From

Law

Enforcement

to

Dispute

Resolution:

A

New

Approach

to

rms

Control

Verification

and

Compliance

14

INT'L

SECURITY

140 (1990).

Bodansky

identifies

two

contrasting

approaches

to

legal

scholarship

on

the

climate

change

problem.

One

is

the

hard

model

which

reflects

a

domestic

criminal

law d-ike

approach

and calls

for

specific

obligations, binding dispute resolution, and sanctions for violators. The other, soft model

emphasizes

building

scientific

and

normative

consensus

incrementally

through

discussion

and

encouraging

rather

than

enforcing

compliance.

Daniel

Bodansky,

The

History

and

Legal

Structure

of

the

Global

Climate

Change

Regime

in

INTERNATIONAL

RELATIONS

AND

GLOBAL

CLIMATE

CHANGE

supra

note 12,

at

22 24.

66

See

CHAYES

& CHAYES,

supra

note

2, at

107 08;

see

also

Martti

Koskenniemi,

Comment

on

thePaper

by

Antonia

Handler

Chayes

Abram

Chayes

and

Ronald

Mitchell

in

SUSTAINABLE

DEVELOPMENT

AND

INTERNATIONAL

LAw

91 92

(Winfried

Lang

ed.,

1995).

2



COLUMBIA

JOURNAL

OF TRANSNATIONAL

LA

Advocates

of the

Transformational

Approach

level

similar

criticisms

at dispute

settlement

mechanisms

and

other

third-party

adjudication-based

bodies.

These

mechanisms

are

too

formal,

overly

cumbersome

and difficult

to

initiate.

67

Brunnre

and

Toope argue

that

such

bodies

are

ill

suited

to

render

satisfactory

decisions

about the

complex

subject

matter

and

highly

polycentric

disputes

that

characterize

international

environmental

law

and politics.

68

Such

disputes

tend

to

involve

too

many

actors

to

lend

themselves

well

to a

plaintiff-vs.-defendant

model

of

resolution.

The

mutable,

highly

technical

nature

of

the

issues

involved

can

defy

a

one-time

determination

of

liability.

Under

what

circumstances,

for

example,

could

one

party

sue

another

party

for non-compliance

with

provisions

of

the Convention

on

Biological Diversity?


find

support

for

their

views

in

the

historical

experience

of

international

environmental

regimes.

[S]anctioning

authority,

Chayes

and Chayes

observe,

is

rarely

granted

by

treaty,

rarely

used

when

granted,

and

likely

to be

ineffective

when

used.

69

By contrast,

the

dispute

settlement

procedure-another

formal

instrument

of enforcement-is

built

into

practically

every

international

environmental

regime.

But

even

here,

as

Transformationalists often note,

such

procedures have

never

been

deployed

in

the context

of an

international

environmental

regime.

70

Apparently,

Szrll concludes,

states

must

not

want

strong

enforcement

mechanisms

to

complement

their

cooperative

arrangements.

7

Szrll

and

other


insist

that sanctions

and

dispute

settlement

mechanisms

are

simply

too

backward

looking, too

coercive,

too

adversarial,

and

ultimately

too

alienating.

They are

fundamentally

incompatible

with

the

Transformational

regime

because

they

have

a chilling

effect

on

the broad

participation,

open-

ended dialogue,

and information sharing

that

drives

the

process.

Brunnre

and

Toope

maintain

along

these

lines

that

adjudication

processes

rely too

often

on

confrontational

forms

of advocacy

and

67.

See

Jacob

Werksman,

Designing

a Compliance

System

for

the U

Framework

Convention

on Climate

Change,

in

IMPROVING

COMPLIANCE

WIT

INTERN TION L

ENVIRONMENTAL

LAW 85,

102

(James Cameron

et

al. eds.,

1996)

(describing

common

criticisms

of

dispute

settlement

mechanisms).

68.

See

Brunn6e

Toope,

supra

note

2,

at

46, quoting

Lon L. Fuller,

The Forms

and

Limits ofAdjudication,

92

HARV.

L.

REV

53

(1978).

69.

CH YES

CHAYES

upra

note

2, at 32-33.

70.

See,

e.g. Brunmn6e

Toope,

supra

note

2, at

47; David

G. Victor,

The Early

Operation

and

Effectiveness

of

the Montreal

Protocol s

Non-Compliance

Procedure,

International

Institute

for

Applied

Systems

Analysis

Executive

Report

96-2 (May

1996);

NOLLKAEMPER,

supranote

46,

at

297-98.

71. See Sz6ll,

supra

note

2, at 107.

[ 8: 65



TR NSFORM TION L

MODEL

OF

REGIME

DESIGN

adversarial processes of articulation. They

go so

far as

to suggest

that

something

about

the nature

of

these

mechanisms

promotes

the

exclusion

of

ecosystem

and

intergenerational

interests

from regime

dialogues.

72

Adherents

of

the

Transformational

Approach

advance

an

alternative

to

the

hard

coercive

enforcement

model

of

compliance

control.

A

soft

approach

to obligations,

argue

Brunn~e

and

Toope,

is

likely

to

facilitate

the

confidence

building

necessary

for

the

creation

of

a regime,

as well

as encourage

broader

participation

by

states

. .

7

This

soft

alternative

is

the Managerial

Strategy;

according

to

which,

instances

of

apparent

non-compliance

should

prompt

a

multilateral

dialogue aimed at

problem

solving, rather than

triggering

punishments:

As

in

other

managerial

situations,

the

dominant

atmosphere

is

one

of

actors

engaged

in

a

cooperative

venture,

in which

performance

that

seems

for

some

reason

unsatisfactory

represents

a

problem

to

be

solved

by

mutual

consultation

and

analysis,

rather

than

an

offense

to

be

punished.

74

For

effective

regimes,

promoting

reevaluation

of

state

interests

[is]

more

important

than

forcing

behavior

against

a

state s

interest.

7

5

Transformational

regimes

have

a number

of avenues

for

managing

compliance.

One

method

is through

continuous

dialogues,

meetings

of

Conferences

of

the

Parties,

and negotiations

of

new

protocols

for

the regime.

Setear

argues

that

the

very

iteration

inherent

in

transition

from

signature

to

ratification

and then

convention

to

protocol

is adequate

to ensure

adherence

to

obligations

and

resilient

72.

Brunn~e

& Toope,

supra

note 2,

at 46 .

73. Id

at 57.

74.

CHAYES

&

CHAYES

supra

note

2,

at

26.

75.

Levy et al.,

supra

note

16, at 398.

The

Managerial

Strategy

of compliance

control

apparently

is

making

inroads

not

only

among

scholars

but

also

among

policy-makers.

At

a

press conference

on Earth

Day

in

1997, reporters

asked

the

U.S.

Assistant

Secretary

of

State

for Oceans

and Environment

Scientific Affairs

if

she

could

envision

a

time when

the

U.S.

would

enforce

sanctions

against

states

not

abiding

by international

environmental

treaty

obligations.

She

responded:

Actually,

I think

on

environment,

we

have gone

down

a

different road,

which

is

a

more

cooperative

road

because

we

need

all

countries

to

solve

these

problems

But

I will

say

this,

one

of

the

things

that is

most

disturbing

as we

negotiate

these

treaties

is

the

capability

of

countries

who are

involved

in the

negotiation

to actually implement and

[sic]

what they commit to doing

....

We believe,

on

the

other

hand,

that the

way

to

deal

with

that is

not

via

sanctions-except

perhaps

in

the

most

extreme

cases-but

with

assistance

and

with

help

and

because

we

find that

in most

cases

these

countries

are

very interested

in

trying

to

do what

they

say

they re

going

to

do .

Press Release

on Earth

Day,

US

Dep t of State

Press

Release,

Apr.

22,

1997

(visited Feb.

13,

2000)

<http://secretary.state.gov/www/statements/970422a.html>

(statement

of

Eileen

Claussen

2



COLUMBIA

JOURNAL

OF

TRANSNATIONAL

LA

W

regimes.

76

Iteration

stimulates a

concern

for reputation and

thereby

lengthens

the

shadow

of the

future.


also emphasize

that

regimes

have

active

instruments

of

management

at

their

disposal.

For

example, regimes

with financial

mechanisms and

scientific

bodies

can address

capacity

deficits

in member states

by

providing

them

with financial

resources

and

data

about environmental

quality.

Iterated

regime-sponsored

negotiating

helps reduce

the

ambiguity

of treaty

rules

and obligations.

Self-reporting

complemented

by monitoring

by environmental

NGOs

and special

regime

bodies

can

make

transparent

the

extent to

which

states

are implementing

their

obligations.


argue

that

once a

member

state's

incomplete

implementation

is

revealed,

other

member states

can

confront, cajole,

and

shame the

recalcitrant

state party

into

compliance.

According to

Chayes

and Chayes,

regimes

supported

by international

organizations

make

particularly

good

compliance

managers

because

such

organizations

have

ample

resources

for

comprehensive

assessment

of state

performance

and

because

they

provide

a ready

forum for

peer pressure:

They

develop

information

in their

field

of

concern,

help

check and

verify

party reports,

and analyze

and

critique

the

performance

of treaty parties

in

a

public

analogue

to

review and

assessment that

is often

harsher

than

a diplomatic

forum

can

accommodate.

In the

end, they

contribute

greatly

to the

exposure

and

shaming

of persistent

offenders

and

often

organize

dissenting

elements

in

the domestic

political

arena. 78

Thus

articulated,

the compliance

strategy

advocated

by

Chayes

and

Chayes is

not solely

a Managerial

approach,

in

which

cooperating

states

merely provide

assistance

to

well-meaning

violators.

Although

they are

clearly

critical of

a compliance

strategy

based

on the threat

of military

or

economic

sanctions,

it appears

that

76 See generally

John

K. Setear, Law

in the Service

of Politics:Moving

Neo-Liberal

Institutionalism

from

Metaphor

to

Theory by

Using

the

International

Treaty

Process

to

Define

Iteration,

37

VA. J. INT L L.

641 (1997); see also

John K

Setear,

An

Iterative

Perspective

on

Treaties:

A

Synthesis

of International

Relations Theory

and International

Law,

37 HARv

INT'L L.J.

139

(1996); Levy

et al.,

supra

note

16, at 402

(arguing that

institutions

that

create ongoing negotiating processes help make commitments more credible

by

ensuring

regular

interaction

among

participants

on the same

set of issues. ).

77. See

Oran R. Young,

The

Effectiveness

of

nternational

nstitutions:

HardCases

and

CriticalVariables,

in

GOVERN NCE

WIT OUT

GOV RNM NT

160, 176-77

(James

N. Rosenau

Ernst-Otto

Czempiel

eds.,

1992) (arguing that

the risk of detection

and

exposure

can

be

more

important

to a

state

than

the

threat

of sanctions).

78. CH YES

CHAYES,

supra

note

2, at 111.

[38:465



2000]

TRANSFORMATIONAL

MODEL OF

REGIMEDESIGN

487

even

they

acknowledge

the

need for

coercion.

A more

accurate

interpretation

of the

Chayes

and Chayes

theory

of compliance,

then,

is

that it

rejects

reliance

solely

on a

material

enforcement

strategy,

consisting

of threats

to

punish

a

state in the

pocketbook or

on

the

battlefield,

in favor

of

a social

enforcement

strategy,

which

uses

regime-generated

information

and

regime-generated

discourse

to

persuade,

shame,

and cajole

offending

states into compliance.

79

In

this view,

increasing

international

interdependence

enhances

the

importance

of a state's

social

status.

8

This condition,

described

by

Chayes

and

Chayes

as the New

Sovereignty,

constitutes

a

compliance

strategy

that

leverages

social

status

to

be

a

very powerful

tool.

Nevertheless,

some


find

even

this

rhetoric

of

shame

and

offense

inappropriate

and

polarizing.

In

their

view, such

concepts

should

be

jettisoned

from

regime

discourse

in order

to avoid

the unraveling

of

the consensus-building

process:

In an

attempt

to

encourage

the

progressive

implementation

of norms,

negotiators

and

drafters

of

international

environmental

agreements

have

sought

to

discourage

conflict by

moving

away

from

the

terminology

of

disputes.

We would

go

further

and

avoid

even the

terminology

of

compliance,

for

it still

tends

to

promote

the

crystallization

of issues

as

disputes.

The

notion

of

'implementation'

is broad

enough

to

encompass

the progressive

development

of

norms

and,

when

necessary,

issues

of

adherence

to

established

norms.

81

Instead, these Transformationalists

are

hailing

a new

development

in international

environmental

law:

the

Non-Compliance

Process

(NCP).

2

Its

name

notwithstanding,

this

new mechanism

reflects

a

shift in

focus from

non-compliance

to implementation

or

dispute

avoidance.

NCPs

have

been

developed

in

both

the

ozone

79. See

Danish,

supranote

58 at 806-08.

80

See CHAYES

CHAYES supra

note 2, at

27 ( The

need to

be an accepted

member

in this

complex web of international

arrangements is

itself the

critical

factor

in

ensuring

acceptable compliance with regulatory agreements. ).

81. Brunn~e

&

Toope,

supra

note

2, at

44; see

also Koskenniemi,

supra

note

2,

at 145,

quoting S.

ROSENNE BREACH

OF TRE TY

79 (1985).

(Koskenniemi

observes

that the

term

non-compliance

may

be preferable

to the

term

breach

in most

cases because

the

latter

'contains

a

pejorative

element

which

does

not facilitate

the

diplomatic

handling

of the

resultant situation. ')

82. See

e.g. Koskenniemmi,

supra

note 2;

Victor,

supra

note

70;

Brunmne

&

Toope,

supra

note 2, at

44-46;

Werksman, supra

note

67, at

10

1-02.



COLUMBIA JOURNAL

OF TRANSNATIONAL LAW

and the

transboundary air

pollution regimes.

83


celebrate

NCPs as the Managerial

Strategy's

alternative

to dispute

settlement procedures.

NCPs

are

multilateral

rather than bilateral;

consensual

instead

of

adversarial; facilitative

not confrontational;

forward-looking

instead

of backward-looking.

Whereas a dispute-

settlement mechanism seeks

judgment,

NCPs

aim

for

a negotiated

solution

that

helps put

the

member state-which

usually

is

willing but

not

able,

according to Transformationalists-back

on

track

toward

full

implementation.

IV. THE FRAMEWORK

CONVENTION

ON

CLIMATE CHANGE:

THE

ARCHETYPE

OF

THE

TRANSFORMATIONAL

DESIGN STRATEGY

The

United Nations Framework

Convention

on

Climate

Change is

a regime constructed

in strict accordance

with

the

Transformationalist

blueprint.

The architecture

of the

regime

incorporates

the

design features

described

above,

and the presence

of

these features

has frequently

been

credited

with promoting the

regime's long-term

effectiveness. Handl

asserts that the Convention's

remarkable

degree

of

inclusiveness

is

the

result

of

a conscious

strategy

of

seeking

[the]

widest

possible

acceptance,

even

at the costs

of

a substantive

normative dilution,

on the expectation

that

the

provisions concerned

would

strengthen normatively

over time as a

result of

the

reporting

and

review

processes

established

in connection

with

these instruments.

a

A 1994

report by the U.S. Office

of

Technology

Assessment

(OTA) supports a

continued emphasis

on

inclusiveness, even

though it

acknowledges

models showing

that a

regime

consisting

of

a limited group

of states

with high emissions

could achieve a

substantial global impact and

would

promote

easier

negotiations.

Thus, the

report

concludes

that if the

whole endeavor

83. In

the context of the ozone

regime, the

NCP

was

anticipated by language

in the

Montreal Protocol. Article

required

the

parties to

consider and

approve

procedures

and

institutional mechanisms for determining

non-compliance

with the provisions

of he Protocol

and

for the treatment of Parties

found to

be

in non-compliance.

Montreal Protocol,

supra

note 6,

1522

U.N.T.S.

at

35

26 I.L.M. at 1556.

The procedure was finalized

in the fourth

Meeting of

the Parties in 1992. See

Fourth

Meeting of the Montreal

Protocol Parties, supra

note

7.

The current form

of

the

1994

Protocol to the

1979

Convention on Long Range

Transboundary Air Pollution

contains

provisions

for

the development

of

a NCP

modeled

after the

Montreal Protocol NCP.

See

Protocol to the 1979

Convention on Long-Range

Transboundary Air

Pollution

on

Further Reduction

of Sulphur Em issions,

adopted June

13,

1994, 1302

U.N.T.S.

217;

see also

Werksman,

supra

note 67

at

101.

84.

Giinther

HandI, Controlling

Implementation

of and Compliance

with International

Environmental

Commitments:

The

Rocky Road from Rio

COLO. J

INT'L

ENvTL.

L.

POL'Y

305,

310

(1994).

[38:465



TR NSFORM TION L MODEL OFREGIME

DESIGN

is to be seen

as

legitimate,

it

must

represent a broad international

consensus, possibly including

most

nations

of

the

world.

85

Just

as

the Transformational strategy prescribes, the

Framework Convention contains

very little in the way of substantive

or short-term commitments. This

is of

no great concern to

Transformationalists, however, because they view the initial

Convention as only a first small step in a long evolutionary process.

Thus, Bodansky observes that provisions within the FCCC are

constructively

ambiguous

because

they

allow

for

further

negotiation of contentious

issues.

86

To

operate

otherwise,

it

is also

believed, would jeopardize the

breadth of

the

Transformational

process because

it

would

restrict

inclusiveness:

It

is

not

desirable

that, by choosing a highly quantified and legally binding policy

instrument, the international

legal

regime

loses

the

participation of

key states at the early stages of

building

the regime.

87

The

Convention focuses instead on enunciating abstract principles

88

and

calling for

information

gathering and sharing by

the

parties.

89

In

addition to these features, the Convention contains a pledge by a

category of

mostly developed country parties, called Annex I

parties, to

reduce

carbon dioxide

emissions to

1990

levels

by

the

year

2000.90 However, this promise has

been generally interpreted

as

non-binding.

9

Indeed, only Russia and

the

other

Eastern Bloc

parties,

who suffered

an

economic collapse and therefore a

steep

reduction in

fossil fuel

use,

are expected

to meet

the year

2000

emissions target.

All others are expected to exceed

the target substantially.

92

There also appears to

be a

commitment to near

unanimity as

the basis for decision-making. The

text

of

the

FCCC

provides

that

the

Convention

may be

amended

through

a three-fourths majority vote,

85. Office

of Technology Assessment, Climate

Treaties

and

Models: Issues

in the

International

Management

of

Climate Change 4, OTA-BP-ENV-128

(1994).

86. Bodansky,

supra

note

18, at429.

87.

David G.

Victor Julian

E.

Salt,

Keeping the Climate Treaty Relevant Vol.

373

NATuRE

Jan.

26, 1995,

at

280-82.

88.

These include

an

emphasis

on the

importance of intergenerational equity

(art. 3.1);

the

notion

of differentiated responsibilities

(art.

3.1); the precautionary

principle

(art.

3.3);

and the promotion

of

sustainable development (art. 3.4).

89.

See id.

at art. 12.

90.

See id.

at

art.4

91. See

Bodansky, supranote 18 at436-38.

92. See

UNFCCC

1996,

Review

of the Implementation

of

the Convention

and of

Decisions

of

the First

Conference of the Parties,

Commitments in Art.

4.2,

Second

Compilation

and

Synthesis of First

National

Communications from Annex

I

Parties:

Executive Summary, FCCC/CP/1996/12 (visited Apr. 1 2000) <http://www.unfccc.de/>.

]



COLUMBIA

JOURN L

OF

TRANSNATIONAL

LAW

if all

efforts

[to

achieve] a consensus

have

been exhausted.

93

This

provision

notwithstanding,

Bodansky

notes

that the

overall

structure

of

the FCCC

has

given parties

the

impression

that

consensus

is

not

merely

a desirable goal

but

a

legal

requirement

for action

by

the

COP.

9

4

Finally,

in line

with the

Transformational

philosophy

of

design,

the FCCC

contains

virtually

no enforcement

mechanisms.

To

serve both information

diffusion

and compliance

control,

the

FCCC

sets out

an elaborate

system

of

self-reporting

on national

greenhouse

sinks and

sources,

as well

as projections

of

future emissions.

This

reporting

and

review

procedure,

however,

is explicitly

intended

to

be

non-confrontational and

facilitative

in nature.

Its functions

include

promoting transparency

and focusing peer

and public

pressure

on

states.

9

The

FCCC calls

on the

Conference

of the

Parties

to

evaluate

the

need for

a

mechanism

similar

to

the Non-Compliance

Process

created

in the

ozone and

transboundary

regimes.

However, unlike

the

Montreal

Protocol,

it

does not mandate

the

development

of

such a

process

and in

general

it

shies

away

from the

rhetoric

of

non-

compliance. Instead,

Article

13 of

FCCC directs the

Conference

of

the

Parties

to

consider

the

establishment

of

multilateral

consultative

process

for

resolving

questions

regarding implementation.

96

It

is

worth noting

that Szrll-the

observer

who has

concluded

that

regimes

abhor enforcement-has

served

as

the chair

of

the

Conference

of

the

Parties'

ad hoc

group

that

is negotiating further

development

of this

multilateral

consultative

process.

97

Predictably,

neither Article

13

nor

any other

article

of

the

Convention

attaches

sanctions

to

non-

compliance.

Given the

Transformational

philosophy,

it

makes

little

sense

to criticize

the

FCCC

for failing

to include adequate enforcement

provisions

or implementation

details.

98

Only

time

will

tell

whether

such

omissions

are a mistake

or

part

of a

fruitful evolutionary

strategy.

It is,

however,

possible

to step

back

and

try

to determine

whether

the

four design

principles

appear

to

have generated

the kind

of Transformational

dynamic

its

architects and

proponents

promised.

93 Id.

at

art. 15.3.

94. Bodansky,

supranote

65, at 2

95. Id.

at 29.

96.

UNFCCC art. 13;

see also

Bodansky, supra

note

65, at

30.

97.

Report

of

the Meetings of

the Subsidiary

Bodies

to the Framework

Convention

on

Climate Change

28 July-7August

1997

Summary

12

EARTH NEGOTI TIONS

BULLETIN

28

(visited

Apr. 1

2000)

<http://www.iisd.ca/climate/>.

98. Such

criticism is widely available.

See

e.g. Christopher

Flavin The

Legacy ofRio

in ST TE O

THE WORLD

1997, 3, 13-14

(Lester Brown

et al. eds., 1996).

[ 8: 65



2000] TR NSFORM TION L MO EL OF

REGIME ESIGN

491

Superficially, the answer

appears to be yes.

While

we have no idea

whether the Kyoto Protocol

is

destined

to enter into force or not

it

remains

the

case

that

parties

to

the vague and shallow

1992

FCCC

negotiated and opened for signature

a

sweeping and ambitious

protocol.

Even if

the Kyoto Protocol never

enters into force, it is a

noteworthy event that

it

came into being at

all-and an apparent

vindication of


Approach.

However, the precise mechanisms responsible for turning the

Framework

Convention

into

the Kyoto Protocol

are not clear.

Looking at the major

political

and

other developments

that

occurred

between

1992

and the end of 1997, it

is

by no means obvious to what

extent

they

were

produced by

or

their

effects

were magnified by

the

design

of the

FCCC.

For

example, in

the

1992-97

period,

the

Intergovernmental Panel on Climate Change (IPCC)-the dangerous

climate change

regime s principal

epistemic community-reported

increasing evidence of

the scientific certainty of

climate

change. Yet,

even if

the

diffusion

of the IPCC s

new information

about the

dangers

climate change was an important element in changing the interests of

key states,

would

not

those

states have heard

the

news

anyway

even

had

they not

been members

of

the

regime?

In other

words, was

maximum

inclusion really necessary

in

order

to ensure

that

states

received the

new

IPCC information?

It

is

difficult to

see

how

the

pronouncements of the

IPCC,

which is

not a by-product of the 1992

Framework

Convention

but rather, was

established

by

the World

Meteorological Organization and the United Nations Environment

Programme in 1988, would

have had

less influence

were

the parties to

the Framework Convention fewer in number.

Other key developments are even

more

difficult to

link

to

the

Transformational

design

of

the regime.

For

instance, one

of

the most

important transformations in the interim between the FCCC and the

Kyoto

Protocol

occurred

in the

climate

change politics of the United

States,

which

had blocked binding

obligations

in 1992 but

subsequently,

in

1995, expressed its willingness

to

negotiate

such

obligations. To what

extent

was this transformation

the result of the

Transformational architecture of the

FCCC,

such as its consensus-

building meetings of the Conference of the Parties and the dramatic

IPCC

reports? And to what extent

was it

the

result

of the ascension of

Albert

Gore to

the

Vice

Presidency? Similarly,

how

are

we

to

measure the causal force

of

the design of the FCCC versus the causal

force of continued implosion of the Russian economy in

explaining

Russia s sudden

acquiescence

to

a

legally binding obligation

to

reduce

its

emissions

to a

1990 baseline? As

we shall argue

later,

one

of

the problems with evidence commonly marshalled on

behalf of

the



COLUMBI

JOURNAL

OFTR NSN TION L

L W

Transformational

model

is that

it

rarely

acknowledges the

role of

such

exogenous factors.

Further

muddying the waters

is

the fact that, at

certain

key

turning points between

1992

and 1997,

the Parties

seemed to

jump

start

development

of the

Climate

Change

regime

only by violating

key Transformational

principles.

As late

as

the summer

of 1996, the

climate change regime

appeared

to

have

run

aground.

Only

a handful

of

Annex

I countries

seemed

likely

to

comply

with

their

pledges

to

stabilize

greenhouse

emissions

at

1990

levels by

2000.

Then,

at the

second

meeting

of the

Conference

of the

Parties

in July

1996,

the

Parties

negotiated a

Geneva

Declaration endorsing

the

conclusions

of

the IPCC and calling

for

the establishment

of

substantial

and

legally

binding

emission

reduction

obligations.

For

the first

time,

the

United

States supported

such

a legal

agreement.

Yet,

the

Geneva

Declaration

was never

formally

adopted

by

the

Conference of

the

Parties.

Its

advocates

feared

that

consensus

decision-making

requirements which

have given

OPEC

states a virtual

veto power

over the

negotiations

9

9

would

have

made

this

pledge

a non-starter.

The COP decided

only

to

take note

of the declaration.'

00

In

short,

therefore,

the breakthrough

achieved

by

the Geneva

Declaration

was

possible only because the Parties circumvented the

consensus

decision-making

requirement

prescribed

by

Transformationalists.

Had the

COP adhered

to

the

Transformationalists'

preferred

decision-making

rule,

one has

to

wonder

whether

the OPEC

states

would

have

kept

the

regime

shackled

to the

1992

framework.

Similarly,

the

provision

of

the

Kyoto

Protocol authorizing

the

establishment

of

an

emission

allowance

trading

mechanism

was

made

possible only because

some

of

the Parties consciously bypassed

consensus

decision-making.

Before

the Kyoto

negotiations,

the

United

States

had

stated clearly

that

the establishment

of

a

trading

mechanism

was

a

necessary

condition

to its

agreement

to

any

emission

reduction

obligation.'

In

the final

days

of

the negotiations,

the United

States and the European

Union

came to

an

agreement

on

a

trading

provision

that would

have appeared

as Article

3.10 in

the

Protocol.

However,

in

a debate

that began

on

December

10

and

ran

into

December

11,

the final

day of

the negotiations,

China

and

several

99.

Bodansky, supra

note 65,

at

21.

100

See

id

101.

See,

e.g.,

John H.

Cushman, Jr.,

American

Negotiator

Hedges Over

Climate

TreatyTalks,

N.Y.

TIMEs,

Nov.

26,

1997, at

A32

(describing chief

U.S.

negotiator's

view

that

treaty

must provide

for international

emissions

trading

to

be acceptable ).

[38:465



2 ]

TRANSFORMATIONAL

MO EL

OFREGIME

ESIGN

493

members

of

the

G-77 negotiating

group

stood

firm

against

inclusion

of

Article

3.10

or

any other

trading

provision

within

the

Protocol.

Raul

Estrada

Oyuela

of

Argentina,

who

was

presiding,

suspended

the

debate

in

order

to

see

if

informal discussions could

lead to a

compromise.

After

a break,

Estrada

announced,

1)

the

removal

of

Article

3.10,

(2) the

insertion

of

a separate

article

establishing

an

interim

arranagement

for

emissions

trading,

and

(3)

a draft

decision

of

the

COP

requesting

a study

of

methodologies,

rules,

and

guidelines

necessary

for

a

trading

mechanism.

As

described

by

the

Washington

Post:

Estrada

read

the

compromise

text

to

the

delegates

and

then

quickly

declared

the debate

over with

a stroke

of his

gavel,

taking

advantage

of

conference

rules that

allow

the

chairman

to

judge

when

a

consensus

has

been

reached.

l

2

In

other

words,

there

was

no floor

discussion

and

no vote.

Again,

this

incident

suggests

that

the Kyoto

Protocol

trading

mechanism which

may turn

out

to

be

the most

important

element

of the

climate

change

regime was

established

only

because

the

Parties

were

willing

to

sidestep

the

decision-making

rule

prescribed

by

the

Transformational

Approach.

0 3

V.

SOURCES

OF

SKEPTICISM

Given

the

difficulty

of

inferring

very

much

about

the

validity

of the

Transformational

vision

from

the

history of

the

climate

change

regime,

it makes

sense

to broaden

the

boundaries

of

inquiry.

In

this

section,

we will

look

at

two

theoretical

issues:

1)

the

extent

to which

the

four

Transformational

design

principles

are necessarily

implied

by

constructivist

tenets;

and

(2)

the

implications

of the fact

that

there

are

a

number

of

nonconstructivist

sources

of preference

change

and

cooperative

evolution

in

the

international

system.

102.

Jody

Warrick,

Climate

Pact

Rescued

in

Final

House;

Turbulence

Pervaded

First

Round

of

Greenhouse

Gas

Talks

WASH.

POST Dec.

13

1997,

at l

103.

Of

course, this

event

is subject

to a

competing

interpretation.

To wit:

the

event

shows that

China and

the

other

G-77

parties

had

been

transformed

and

that a

consensus

had

formed

in favor

of the

trading

rules

because,

had

those parties

truly

opposed

the

proposed

trading

rules,

Chairman

Estrada's

parliamentary

maneuver

would

have

prompted

their

refusal

to

sign the Protocol. In fact,

China

and

most

other

G-77 parties

have

signed

the Protocol

despite this

incident.

This

interpretation

is difficult

to

disprove.

It

could be

that

these

parties'

opposition

to the

trading

rules

was

genuine

but

not strong

enough

that

they

would

take

the

dramatic

step of

refusing

to

sign.

Alternatively,

their opposition

might

be

strong

enough

that,

if

the

trading

rules

are

not

modified

or

somehow

reinterpreted

to their

satisfaction,

they

will refuse

to

ratify

the

Protocol.

In

any event,

the

incident

raises

the

question

whether

a consensus

decision-making

requirement

helped

or hindered

the

development

of

the Kyoto

Protocol.



COLUMBIA

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OFTRANSNATIONAL

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[

Since the theoretical inspiration for

the

Transformational

design

principles is

constructivism,

it

makes

sense

to begin

this

inquiry by

evaluating

the extent to which

they necessarily

follow

from

it.

0

Alexander Wendt,

a

major

figure

in the constructivist

school,

emphasizes

three

processes of

interaction-based

transformation

that

generate

cooperation by changing

underlying

interests.

5

The

first

two are

closely

interrelated

and

involve reflected

appraisal,

a

procedure whereby

actors

adopt identities,

at least

in

part,

by learning

through interaction

to see

themselves as others

see

them.

The

more

materially or

psychologically

dependent

an

actor is on

others,

the

greater

will

be

the

impact

stemming

from

the perception of these

external

actors.

In

the first

of

the two reflected appraisal

processes,

the

emphasis

is

on

the impact

that

cooperative

interaction

will have

on

the other : By

showing

others

through cooperative

acts

that

one

expects them

to be cooperators

too,

one changes

the intersubjective

knowledge

in terms

ofwhich

their identity is defined. '

0

6

The

second process is

a reflective

variant of

the

first.

By

engaging

in cooperative

interaction

a state projects

something

about

itself

that

redefines the

intersubjective environment

from

which

its

self-conception

is

derived.

As

the other

state absorbs

this

new

presentation

of

the cooperator s self,

it projects

this new

identity back

and resocializes

the cooperative state

to a new conception

of

itself.

Thus

by

engaging

in cooperative

behavior, an

actor

will gradually

change

its own beliefs

about who

it

is,

helping

to internalize

that

new

identity

for itself.

7

These two

processes do

more than

generate a

level of

cooperation greater

than that

predicted by a strategic,

game-

theoretic model;

they

also

produce

a convergence

of identity such

that

actors

learn to see

themselves as we

bound

by certain

norms.

104.

As

applied to international

treaty

regimes, constructivism

is

an

account

of law not

as a

body

of

rules

but

as

a

system of legal

relations, at

once

universalizing

from individual

particularities, patterns

of interactive behavior,

and

particularizing

society's

universal

purposes.

Benedict

Kingsbury, The

Concept of Compliance

as

a

Function

of

Competing

Conceptions

of International

Law

19 MICH. J. INT L L.

345, 358

(1998) (describing

constructivism

as

one

of

a

number of competing

theoretical

accounts of international

law

made evident

in discussions

of

compliance).

105.

See

generally

Alexander Wendt,

Constructing

InternationalPolitics

20

INT'L

SECURITY 71 (1995)

[hereinafter Wendt (1995)];

Alexander Wendt,

Collective Identity

Formation

and

the International

State 88 AM

POL. Sci. REv. 384

(1994) [hereinafter

Wendt

(1994)]; Alexander

Wendt, Anarchy

Is

What

States

Make o

It

46

INT L

ORG. 391

(1992)

[hereinafter

Wendt

(1992)].

106. Wendt (1994),

supra

note 105,

at 390.

107. See id. at390-91.

[38:465



2000] TRANSFORMATIONAL MODEL OFREGIMEDESIGN 495

The

third

process

involves

the

more

self-conscious

dimension

of rhetorical practice in the form

of

discussion, dialogue, persuasion,

and

political

argument.

According

to Wendt, the goal of rhetorical

practices

in

collective action is to create solidarity; thus they may

have

an

important

expressive function

independent

of their

instrumental

value in

realizing collective goals. '

8

Acts of

cooperation thus

create a

language

of cooperation; this language then

frames

their

responses to

new events. In this way,

acts of

cooperation

engender further cooperation.

Among

the examples

Wendt

gives are

European statesmen

talking about a

European identity

and

Gorbachev trying to end the Cold War with a rhetoric of New

Thinking

and

a

common European home.

10 9

It

is

noteworthy that

while the Transformational

design

strategy

incorporates elements of

all

of

these three processes, the

definition of each

is

actually broad enough

to

encompass

other,

quite

different paths

to preference

change and cooperative evolution. One

such

path, which

is

prominent in

the

literature,

is

what Harold Hongju

Koh

calls

the

Transnational Legal Process. In

the Transnational

Legal Process,

identity

convergence occurs

via vertical

domestication,

whereby international

law

norms

trickle down and

become incorporated into domestic

legal systems.

0

In contrast

to

the

Transformational

process,

this

process

frequently unfolds outside

the

boundaries of formal

negotiation where

as

many

as

six different kinds

of agents exert

their

influence

in

numerous fora. These include:

1) transnational norm entrepreneurs; 2) governmental norm

sponsors; 3) transnational

issue networks;

(4)

interpretive

communities and legal-declaring fora;

5) bureaucratic

compliance

procedures; and 6) issue linkages. '

A number

of

different

agents figure

in

Koh's

description

of

the movement

to strengthen the land mine provisions of the

1980

Convention on Prohibitions or Restrictions on the Use of

Certain

Conventional Weapons Which

May

Be Deemed

to

be

Excessively

Injurious

or

to

Have

Indiscriminate

Effects.

Transnational norm

entrepreneurs include groups like the Vietnam Veterans of America

Foundation, Human Rights Watch,

Medico International of Germany,

108

Id

109 Id

I10

See Koh,

supra note 2, at 626. Just when and

where this

trickle down process is

most likely to operate effectively

is not

clear. To date, Koh has concentrated his attention on

describing

how

this process

operates rather

than

in characterizing the conditions

under

which

it

is

likely

to operate most effectively.

11 See id at 646



COLUMBI

JOURNAL

OF

TR NSN TION L

L

Handicap

International

of

France

and

the

Mines

Advisory

Group

of

England. '

These

groups

managed

to engage

a

host

of

prominent

individuals

in

different

countries,

in

addition

to a

significant

number

of

nongovernmental

organizations such

as

the International

Red

Cross.

When

an

inability

to

achieve

a consensus

sabotaged

United

Nations-sponsored

efforts

to

control

land mines

by updating

the

Conventional

Weapons

Conference

via

the Geneva

Process,

it

was

these

groups

along

with

midsize

countries

that

decided

to

pursue

a

total

ban

on

land

mines

by an

alternative

strategy

that

became

known

as

the

Ottawa

Process.

1

3

The

Ottawa

Process

involves

creating

a new

forum,

in which

decisions

will

no

longer

be constrained

by

the

norms

of

inclusiveness

or

consensus.

Its goal

is

to

generate

a powerful

normative

standard

that non-signatories

will

feel

compelled

to follow

knowing

that

otherwise

they

risk finding

themselves

grouped

with

states widely

considered

to be

the least

progressive

and

most

morally

irresponsible

actors in the

international

system. There

is

some

evidence

that

the

strategy

works.

Although

they

are

not

signatories to

the

Ottawa

Agreement,

the Russians

indicated

that

they

eventually

intended

to

join

the

regime

and

the

United

States

agreed

to continue

its

moratorium

of

the

sale

of

land

mines.

1

4

Note

that to the

degree

that

the

Ottawa

Process has

succeeded,

it has done

so because

a

subset

of progressive

actors

were

willing

to

abandon

their

attempts

to achieve

consensus

in an

inclusive

forum

and

to

establish instead

another

one

in

which

those

rules

no longer

applied.

Had

land

mine

advocates

chosen instead

to

wait for

the

preferences

of Russia,

China,

North Korea,

Libya,

and the

United

States

to converge

through

collective

deliberation,

there

is

little doubt

that

there

would have been

no

treaty in December

1997

or now.

Creating

an international

agreement

without

the

participation

of key

states

makes

sense

only

if reformers-unlike

Transformationalists-believe

that

influence

and

diffusion

patterns

continue

to

operate

outside

the boundaries

of any

single

multilateral

institution.

In

today's

world

there

seems

to be

ample

justification

for

such

an attitude.

High levels

of

NGO activity

and

increasing

access

to

media-two

trends

that


have

frequently

emphasized

in other

contexts-have

progressively

eroded

the

ability

of

decision

makers

to

limit

the exposure

of

their

citizens

or

themselves

to information

about

international

problems

and

policy

112.

Seeid at655.

113.

Seeid

at658-61.

114.

Seeld

at660-61.

[ 8: 65



TR NSFORM TION L

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OF

REGIME

ESIGN

alternatives. This is especially true when, as in the land mine

case,

NGOs

and

the world

media target

states that they believe are

regressive or recalcitrant.

Although

the

Ottawa

Process

strategically rejects

two of the

four

design

principles propounded

by

Transformationalism, it seems

clear

that it

is no less consistent with

Wendt s vision of

constructivism. The

two reflective appraisal

processes that he

describes do not

restrict

the

character of the actors whose

perception

affects the

subject state s self-conception. Nor does

the third process

he discusses restrict

what he calls rhetorical

practitioners

to

those

signatories

of

a

formal agreement.

This

suggests

that

Transformational principles,

however normatively

appealing they

may

be, cannot fairly be

said to

represent

the

unique

distillate of

constructivism.

Worse, the contrast

between the Ottawa

Process and


design principles

raises the specter

that

under

some

circumstances these

principles

may

actually

obstruct the

operation of

constructivist

processes.

We have no

way

of

estimating the relative importance

of

the

Transformational process

as compared with Koh s

Transnational

Legal Process,

but

there

are

many

reasons

to

suspect

that the

horizontal convergence process at the core

of

Transformationalism is

weaker at the state level

than at the level

of

individuals

and at

the

small

group

level.

The individuals

who were present at Kyoto

were

not

acting

on

their own behalf.

They

were there

as

agents

representing

their governments

and, as a consequence, their

autonomy was limited.

Even if their personal

preferences may have been

transformed by the

experience

of face-to-face interaction and negotiation

with

colleagues

from other states

and

NGOs,

they were

rarely

if ever in

a

position

to

unilaterally comm it their

state to a

course

of

action

that their superiors

(and

other bodies constitutionally

assigned the t sk

of

ratifying

their

superiors' decision)

believed

to

be

ill advised.

As articulate and

knowledgeable

advocates,

such individuals could,

of course,

work to

alter the

opinions of their superiors,

the media,

and the

public.

However,

it is many steps

from

a

representative changing

her mind to

a

significant

change

in state

policy-also

an inevitable

feature

of any

democratic system where

oversight

and due process

operate

as

they

should.

The differences between the power of

interaction to

promote

transformation in small group settings and

its operation

in the

international system

may help account for the large

number of what

appear to

be Transformational

failures.

We have already

seen the

lengths to

which key actors

went

to

circumvent

democratic due

process in the climate

change negotiation process,

because

]



COLUMBI

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OF

TR NSN TION L

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preferences, particularly those

of the OPEC states, did not converge

with

those

of other

states. Another

such

example

is

the

Convention

for the

Protection

of

the

Mediterranean

Sea

Against

Pollution

regime.

115

t

is

difficult

to

think

of

a

regime

that

embodies

the

Transformationalist

design

logic more.

t began

with a

high

participation

rate,

it embraced

the principle

of

consensus, it initially

required

few

commitments from participating

states, and

it

eschewed

heavy-handed enforcement.

Yet despite

this

integrated

design

logic

and despite

twenty

years

of

member

states' interaction

and

discussion

by member

states,

by most

accounts

this regime

has

yet

to make

any

notable

progress

in tackling the

problem

of

non-point

pollution

by

land

run-off.

1

6

Although Wendt

does

not

dwell on

the fact,

one

of

the

interesting

aspects

of his

three

processes

is

that

the operation

of

several

of

them

is actually

predicated

on

there

being a

degree

of

preexisting

interstate

cooperation.

Thus,

in the first, reflectivist

appraisal process,

states demonstrate

through

cooperative

acts

that

they expect

others

to cooperate

also. In the

second,

by

engaging in

cooperation,

states

change

their

own

environment,

which then

helps

them

internalize

their

cooperative

selves.

This

could leave

a reader

wondering:

1) how the

initial prereflectivist cooperation

is

generated; (2)

whether

this process

withers

away

or

continues to

operate

once

reflectivism

and the

self-conscious

dimension

of

rhetorical

practice

go

into operation;

and (3) what

the design

implications

are

of

these other

nonconstructivist

inspirations

for

cooperation.

The

answers

to the first

two

questions

turn

out

to

be

remarkably

uncontroversial.

No

constructivist

disputes the

fact that

there

are

a

variety

of

conditions and processes other than

constructivist

ones that

promote

cooperation.

or

oes

anyone

contend

that these

processes

end

as

soon

as

constructivist

processes

begin to

operate.

Only

the

answer

to

the

third question

is

unclear,

possibly because

regime

design

is still

an undeveloped

craft

and

possibly

because

prospective

researchers

are

well-aware

that

each of

the

myriad

sources for

cooperation

(e.g., reducing

transaction

costs,

capturing

economies

of scale, increasing

trade)

would

have

to be

explored

before one

could

confidently

generate

an answer.

115.

See

Protocol for the

Protection of

the

Mediterranean

Sea Against

Pollution from

Land-Based

Sources,

approved

May

16, 1980,

1302 U.N.T.S.

217,

19 I.L.M. 869

and

Convention

for

the

Protection

of

the

Mediterranean

Sea

Against Pollution

adopted Feb. 16,

1976,

1102 U.N.T.S.

27, 15 I.L.M.

290.

116.

See

e.g. Dead in the

Water NEW

SCmNTIST,

Feb. 4, 1995,

at 26.

[ 8: 65



TRANSFORMATIONAL

MODEL

OF

REGIME DESIGN

Fortunately,

we are

not interested here

in

the

design

implications

of

every

source

of

cooperation

but in

the

more

modest

task

of

seeing

whether

there

is

any

reason

to

believe

that

these

nonconstructivist

causes

of

multilateral

cooperation

are sometimes

best

managed

by design

principles

different

from those

advanced

by

Transformationalism.

If this

is

the

case, exclusive

reliance on

Transformationalism

may

cause the same counter-productive

effects

that

we

encountered

above

in connection

with transnational

forces.

It is not possible

within

the

confines of a single

essay to

explore the design

implications

of

every source

of

preference

change

that

fosters cooperative

evolution, but we

can

look at those connected

with

two

that

are

prominent

in the

literature:

relative price

changes

and second-order

consequences

of

state policy

changes.

A long

tradition

of empirical research

in economics that

spans

many

substantive

policy

arenas suggests

that

policy

changes

by states often

come about

as the result of

relative price

changes that occur

in

the

wake

of a

technological

innovation

or

a shift in resource

availability.

7

This seems

to have been the

pattern with a number

of

international

environmental

regimes.

For

example,

the

success

of

the

Paris Commission

(PARCOM)

at

controlling

land-based

sources of

Northeast Atlantic

Pollution

appears to

have more

to

do

with

the

availability

of water-based muds

than a

sudden

willingness

of

states

to embrace more stringent and

more costly measures.

18

Similarly,

the

driving

force behind

the

cessation

of

virtually

all offshore dumping

and incineration

under the

Oslo

Convention

for

the

Prevention

of

Marine

Pollution by

Dumping

from Ships

and Aircraft

was

technological

advances

in

land-based incineration that reduced

the

cost

of hazardous waste

incineration,

not the

normative

transformation

of

Britain s

environmental policy.

9

Economic

trends not directly

connected

with

relative

prices

can also

inspire significant

preference change

in the direction of

cooperation.

Increases

in

per capita

income that

come

with

greater

economic

development

are,

for

example,

a major

determinant of

environmental

consciousness. As

a

consequence,

the wealthier

states

117.

See e.g. George

J. Stigler & Gary S. Becker,

De GustibusNon Est

Disputandum

67

AM.

ECON.

REv.

76,

83

(1977).

118.

See Peter

M.

Haas, Protecting

the Baltic and

North

Seas

in INSTrrUTIONS

FOR THE

EARTH, supra

note 16,

133, 164.

See Conference

on the

Prevention

of

Marine Pollution from

Land-Based Sources:

Convention for the Prevention

of Marine

Pollution

from Land-Based

Sources

(1974),

13 I.L.M. 352.

119.

See Patricia

Birnie,

Regimes Dealingwith

Oceans and

All Kinds

of

Seas

from the

Perspective of

the North in

GLOBAL

ENVIRONMENTAL

CH NGE ND

INTERNATIONAL

GOVERN NCE

62 (Oran R. Young

et al. eds., 1996).

]



COLUMBI JOURN L

OF

TR NSN TION L

L W

in

the

North that

for decades engaged

in

environmentally destructive

behavior now

place

a higher priority on

environmental

regulation

than

do

poorer

states

in

the

South.120

A combination of relative price changes

resulting

from

increased productivity and technological advances in

the

United

States

and

Japan

and

the declining performance of the European

agricultural

sector

were

also factors

in

the preference changes

that

produced

the

Treaties of Rome

and

propelled the evolution

of the

European Community. As Andrew

Moravcsik emphasizes in

connection with French participation in the

Treaties:

Neither

industrialists nor

farmers felt

any

abstract

commitment to

the

European idea

or

to

supranational institutions he preponderance

of evidence, I argue, supports the

primacy

of economic motivations,

as predicted

by

the economic theory

of

commercial policy.

12

'

One of

the

things that

items

in this broad class of economic

changes

tend

to

have in

common is

that they

do not

affect every state

in

the same

way

at the same

time.

As a consequence, cooperative

progress-at

least

in

the short term-is likely

to

be more rapid in

institutions that reject inclusiveness and initially involve only those

states most affected by the

changes. The institution

can

be expanded

later,

as

other

states also

become affected

by

such

changes and

thereby more predisposed

to

participating in collective action.

The

European Union is the classic

example in this regard. The speed

of

the European

Union s

evolution

was

enhanced considerably by

the

strategic exclusion of Britain

in

the Coal and Steel

Agreement,

and

even today the European Union continues to expand in a piecemeal

fashion.'

22

The North Am erican Free

Trade

Agreement

(NAFTA) and

the

Association

of Southeast Asian Nations (ASEAN) appear to

be

following

much

the

same

approach.'

120.

See

e.g. THE WORLD BANK, WORLD

DEVELOPMENT

REPORT

1992: DEVELOPMENT

AND

THE

ENVIRONMENT, 11, 40(1992).

121. ANDREW

MORAVSCIK, THE

CHOICE

FOR

EUROPE 112 (1998).

122. Variable speed agreements,

under

which different states have different rights and

responsibilities,

are another institutional

solution

to this problem. See Alberto Alesina

Vittoria

Grilli, On

the

Feasibiltiy of One

Speed

or Multispeed

European Monetary

Unification in THE

POLITICAL ECONOMY

OF

EUROPEAN MONETARY UNIFICATION

(Barry

Eichengreen Jeffrey Frieden

eds.,

1994).

123.

Arms

control, which has more in common with

environmental

regulation

than

with

trade regulation,

is also

an area where inclusiveness has often

been

ignored

with some

success. The designers of

NPT

evidently embraced the logic that the results of insisting on

inclusive m embership would

be

to either have

no

treaty at

all

or one with

even less substance.

Similarly, states

went

forward

with the

Chemical Weapons Convention even

without

the

participation of states such as Iraq, Iran and Libya, who are considered to be large producers

and possibly the most likely users of

such weapons.

[ 8: 65



TRANSFORMATIONAL

MODEL

OFREGIME

DESIGN

Various

related

processes

can

also

operate

to

reduce

the

chances

that

states

initially

excluded

from

an agreement

will,

as


warn,

refuse

to

join

an

institution

that

they

had

no

part

in

designing. When

a group

of

states

forms

a

regional

free

organization

such

as the

EC

that

lowers

tariffs

for

member

states

while

retaining

current

tariff

levels

for

nonmembers,

it

makes

imports

from

other

member

states

cheaper

than

similar

goods

from

nonmembers.

Not

surprisingly,

this

leads

to

a

situation

where

an

increasing

proportion

of

purchases

made

by

member

states

are

at the

expense

of

exporters

in

nonmember

states.

As

a result,

trade

between

member

and

nonmember

states

will

take

place

on

a

significantly

lower level

than it would

in

the

absence

of

the

trade

organization.

As

the

accumulated

cost

of

diverted

trade

continues

to

mount,

exporters

in

nonmember

states

begin

to

press

their

own

governments

to join

the

trade

organization.

To the

extent

that

they

succeed,

this process

can

be said

to

have

changed

state

preferences

in

a way

that

is

no

less

real

than

if

states

had

joined

because

their

decision-makers

had

been

swayed

by

the

rhetoric

of

one

Europe

or

its

equivalent.

If

the

principle

of

inclusiveness-perhaps

the

most

basic

tenet

of

Transformationalism-is

not

robust

in

relation

to

other

common

sources

of

preference

change, we

might

begin

to

question whether

some

of

its

other

prescriptions

are

as

critical

to

the

evolution

of

cooperation

as

its

adherents

claim.

Arguably,

this

is true

of

enforcement.

The

GATT

was

on

the

brink

of

collapse,

at

least

in

part,

because

the

regime s

Transformational

combination

of

soft

enforcement

and

consensus

decision-making

had

proved

ineffective.

The

fact

that

the

GATT s

dispute

settlement

agreement

became

binding

only

upon

unanimous

approval

of

the

parties

gave

alleged

treaty violators

a

veto

over

any

enforcement

measure

that

might

be

taken

against

it.

Only

when

a

different

and

stronger

enforcement

system

had

been

placed

on the

agenda

of

the

Uruguay

round

did

the

United

States

agree

to

participate.

The

evolution

of enforcement

and

cooperation

has

been

even

more

persistently

linked

in

the

case

of

the

European

Union.

Every

time

the

European

Union

has

expanded

and

become

deeper,

its

enforcement

provisions

and

institutions

(e.g.,

the

European

Court

of

Justice)

and

decision-making

rules

(e.g.,

the

Maastricht

Treaty's

provisions allowing

certain decisions to

be

made

by

super-majorities)

have

strengthened.

2

Such

examples

are

theoretically

significant

124.

See

George

W. Downs

et al.,

Managing

the

Evolution

of

Multilateralism

52

NT L

ORG.

397

(1998).

125

See

Ann Marie

Burley

Walter

Mattlie,

Europe

Before

the

Court:

A

Political

2000]



COLUMBIA

JOURNAL

OF

TRANSNATIONAL

LAW

[

because

if Transformationalism

is

as powerful and

reliable a

process

as

its

proponents

claim,

we

would

expect

it

to produce

via identity

convergence

an

institution

that

could

be

sustained

with

increasingly

less

formal

enforcement.


might

reply

that

these

trade

agreements

are

qualitatively

different

from

those

of

primary

concern

to

them

because

trade

is

an

excludable

good,

in

the

sense

that

the

lower

tariff

levels

prescribed

by

an

agreement

are

not

automatically

extended

to

non-signatories.

This

kind

of

good

makes

a

piecemeal

approach

relatively

easy

to

implement

because,

as

we

have

seen,

such

a

process

progressively

enrichens

member

states

relative

to

nonmember

states

and

provides

the

latter

with

an

ever-increasing

incentive

to

join.

Environmental agreements among

others

do

not

create

anything

comparable.

Yet even

in

the

environmental

area

there

is

evidence

that a

regime

that

implicitly

rejects

Transformational

principles

can

thrive.

The

Montreal

Protocol

and

the

International

Convention

for

the

Prevention

of

Pollution

from

Ships

(MARPOL),

often

considered

to

be the

two most

successful

environmental

regimes

in

terms

of

depth

of cooperation,

both

began

without

universal

membership

and

contain

relatively

refined

enforcement measures.

26

It

is

difficult

to

avoid

the

conclusion

that

the

existence

of

multiple

sources

of

preference

change

with

multiple

design

implications

undermines

both

the

Transformational

belief

that

identity

convergence

is the

primary

engine

for

the

evolution

of

cooperation

and

its

contention

that cooperation

can

best

be

promoted

by

the

application

of its

four

key design

prescriptions.

It

suggests

instead

that while

the

application

of

Transformational

principles

may speed

the

evolution

of

cooperation

in

some

cases,

it seems

likely

to

havelittle

effect

or

even

retard

it

in others.

As

a first

test

of

these

claims,

the

next

section

examines

how

environmental

regimes

that

have

adopted

the

Transformational

design

strategy

have

fared

compared

to

regimes

that

have

not

heory

ofLegal

Integration

47

INT L

ORG.

41,

74

1993).

126.

The

locus

of

these

enforcement

measures

may

be

at the

level

of the multilateral

institution

as

in

the

case

of

the

Montreal

Protocol

or largely

at

the

domestic

level

as

in

the

case

of

MARPOL.

ee

RONALD

B. MITCHELL,

INTERNATIONAL

OIL

POLLUTION

AT

SEA:

ENVIRONMENTAL

POLICY

ND

TREATY

COMPLIANCE

182-85

266

(1994).

[38:465



TR NSFORM TION L

MO EL

OF

REGIME

ESIGN

VI

EVIDENCE

FROM

A

SURVEY

OF

ENVIRONMENTAL

TREATIES

Proponents

of

the Transformational design strategy

could

claim

that

case

examples

where

it

appears

to have

yielded

poor

results

are

the exception

rather

than

the rule.

In most

cases,

they

might

argue,

it has

yielded

good

results.

Clearly,

the

matter

calls

for more

systematic

inquiry

than

it

has

received

A potentially

helpful

evaluation

strategy

is

to move

from

the

presentation

of

examples

and

counterexamples

to an

analysis

of

a

more

representative

collection

of

cases.

We

reviewed

the

case

histories

and

structural

characteristics

of

more

than

one

hundred

existing

international agreements and international legal instruments

as

recorded

in

the United

Nations

Environment

Programme

Register

of

International

Treaties

and

Other

Agreements

in

the Field

of the

Environment.

We

eliminated

agreements

that

were

no longer

in

force,

agreements

that

had

two or

fewer

members,

and

agreements

for

which

no outcome

information

was

available,

leaving

us

with

a set

of

fifty

environmental

regimes.

This

set

of

agreements

is

listed

in

Appendix

A.

From

the

remaining

group,

we

identified

fourteen

agreements

that

at

the

time

of

their

signing

possessed

three

of

the

four

structural

attributes

that

are

the

hallmarks

of


agreement.

That

is,

each

of

these

fourteen

agreements:

1)

included

all (or

nearly

all) relevant

parties

from

its

inception

or

deliberately

pursued

an

inclusive

strategy

to

attract

all

relevant

states

as

quickly

as

possible;

(2) defined

obligations

only

in

general

terms,

leaving

states

to

elaborate

and

apply

them

gradually

at their

own

pace

through

national

legal

processes

or,

where

obligations

were

legally

binding,

required

only

minor

behavioral

changes

of member

states;

and

3)

contained

virtually

formal means

of

penalizing

non-compliance. We

did

not

include

a

requirement

for

consensual

decision-making

because,

as

in the

case

of the

climate

change

regime,

this

tends

to

be

an

informal

norm

rather

than

an

explicit

requirement.

Almost

invariably,

however,

the

consensus

formally

specified

in

the

written

agreements

establishing

environmental

multilaterals

is

quite

high.

Table

1

compares

the

score

of

the

median

Transformational

agreement

on

each

of

the relevant

structural

attributes

with

that

of

the

median


agreement

designated

as

all

other.

On

average,

Transformational

agreements

initially

contain

dramatically

more

members

(72

vs.

13),

have

notably

less-demanding

initial

obligations

(2.7

vs.

3.4

on

a

scale

of

5 ,

and

have

strikingly

weaker

enforcement

provisions

(1.4 vs.

3.2).

]



COLUMBI

JOURN L

OF

TR NSN TION L

L W

Table

:

Structural

Attributes

of Environmental

Agreements

Number

of

Agreements

14

36

Initial Membership

72

13

ype

of Initial

Obligation

2.7

3 4

Enforcement

Level

1.4

3

In

order

to

learn

the

extent

to

which

Transformational

agreements

have

succeeded

n

nspiring

more

cooperation

among

their

members

than


agreements,

we

estimated

what

we

term

the depth

of

cooperation

that

has occurred

to date.

Depth

of

cooperation

is

a

measure

of the

extent

to

which

member

states

have

altered

their treaty-related

behavior

since

they

became

parties

to

the

treaty.

127

t is

estimated

on

a

simple

Likert-scale

that

ranges

from

1

to

5.

A

coding

of

1

is

assigned

to

those

multilateral

agreements

whose

members'

behavior

along

the

regulated

dimension

is

virtually

the same

as

it

was

when

the

treaty

was

originally

signed;

a

coding

of

5 is

assigned

to

those

multilaterals

whose

members'

behavior

is

dramatically

different

from

their

pre-treaty

behavior.

A

description

of

the

coding rules

appears

at Appendix

B.

12

1

127

Obviously,

depth

of

cooperation

or any

such

indicator

has

a

host of

limitations.

Apart

from

the limitations

imposed

by

an ordinal

scale,

there

is

no

guarantee

that

a

deeper

treaty

is necessarily

more

effective

than a shallow

one

since

some

problems

vary

in

the

extent

to

which

they

require

behavioral

change

in

order

to

be ameliorated.

More importantly,

we

have

no

accurate

way

of

estimating

the

counterfactual

(i.e.,

what

portion

of

the

change

in

behavior

would

have

occurred

in

the

absence

of

he treaty).

While

it

is

important

to be

aware

of

these

shortcomings,

there

are reasons

for

believing

that

each

is

less

serious for

our

purposes that it might be

in

other contexts. The ordinality

of

the indicator is relatively

unimportant

because

our

analysis

is

limited

to

the simple

question

of whether

on

average

Transformational

agreements

have

produced

deeper

cooperation

than

have non-

Transformational

ones.

Regardless

of

the lack

of

theoretical

certainty

about

the correlation

between

effectiveness

and

cooperative

depth,

there

is every

reason to

believe

that

it

is

positive

and

that

depth

of

cooperation

is

important

in its

own

right: we

care about

the

extent

to which

agreements

can motivate

states to

change their

behavior

because

there

are a

host of

problems

that

require

states

to alter

significantly

their

behavior

(e.g., global

warming,

land

mine

proliferation).

The

lack

of a

reliable

estimate

of

the

counterfactual

is the

most

significant

limitation

of our

measure,

but

it

will

not

affect

comparisons

between

Transformational

and

other

types

of agreements

unless

there

is reason

to fear that

the phenomena regulated

by

Transformational

agreements

would

be systematically

affected

differently

than

would

other

treaties

by exogenous,

historical

forces

once

they

are created.

f there

are

no

such reasons,

we

expect

the

effects

of such

forces

on

different

types

of agreements

would

effectively

cancel

out: that

is, because

these

forces

have

roughly

the

same impact

on

all

types

of

treaties,

they

have

no

net

effect

on

a

comparison

of he

two

types

of

reaties.

128. Each

treaty

was

coded

independently

by

two or more

graduate

students.

They

were

instructed

to base

their

coding decisions

on

published

analyses

of

the

agreements

in

the

[ 8: 65



TRANSFORMATIONAL

MODEL

OF

REGIME

DESIGN

Table

2:

Depth

of Cooperation

Today

Comparison

Trnfrio

ll

Ote

Median depth

of

cooperation

1 8

)2.4

Table

2 reveals

that

as a group,

the

median

cooperative

depth

score

for

Transformational

agreements

is

1.8,

while

the average

non-

Transformational

agreement

has

a

depth

of

2.4., or

33%

deeper.

From

a

substantive

standpoint,

this

means

that

the

average

Transformational

agreement

led

fewer

than

20% of

member

states

to

alter

their pre-treaty

behavior

significantly.

More revealing

is the

distribution

of

the treaties

on

the scale

depicted

in

Table

3.

It

shows

that

four

of

the

fourteen

Transformational

treaties

did not

result

in

their member

states

significantly

altering

their

pre-treaty

behavior;

nine produced

little

change

in

member s

behavior;

and

only

one

led

to

a

change

classified

as

moderate.

This appears

to suggest

that the

evolutionary

impact

of

the

Transformational

agreements

in

transforming

states'

environmental

behavior

has

been

extremely

modest,

and

it

serves

to

increase

our

concern about the foundations

of

the

Transformational

Approach.

Table

3:

Distribution

of

Depth

of

Cooperation

among

Transformational

Agreements

D e

Cori

N

I

Agee..

Status

Quo

4

Little

Depth

9

Moderate

Depth

1

international

law

and international

relations

literatures.

Clearly,

this

coding

methodology

summarizes rather than improves upon the rough approximations

in

the literature and does

not

begin to meet

the

standards

of

the

elaborate

studies

that are

beginning

to appear

in

economics.

See e.g. James

C.

Murdoch

Todd S andler,

The

Voluntary

Provision

of

a Pure

Public Good

The

Case

of

Reduced CFC

Emissions

and

the

Montreal

Protocol

63 J.

PUB.

ECON. 331

(1997).

Nevertheless,

it

is our

view

that such

a

rough

and ready

approach

allows

us to

take

advantage

of

a

qualitatively

rich literature

that provides

an informative

if

crude

first-cut

at

a problem

that cannot

be

rigorously

addressed

with

any

kind

of breadth

for

another

decade.

]



COLUMBI

JOUR T L

OFTR NSN TION L

L W

Table

4

depicts

the same

distribution

of

depth

of

cooperation

scores

for

the 36


agreements.

Their median

depth

of

2.4

is significantly

different

from

the

Transformational

treaties at the

05

level. Whereas only

one

(or

7 )

of

the

Transformational

multilaterals

achieved

a

depth

score

of

moderate or

higher,

10

(or

28 )

of the


agreements

have

done

so.

Moreover,

20

of all

other

agreements

were

given

a

depth

score

of

high,

whereas

not

one

of

the

Transformation

Agreements

received

this score.

Whether we

employ

an

absolute

or a

comparative

standard,

there

is

no indication

that regimes

designed

along

Transformational

principles

create

an evolutionary

dynamic

that gives

rise

to more

deeply

cooperative

regulatory

regimes,

and

there seems

to

be some suggestive evidence

that

there

may

be

other

approaches

that

do

better.

1

2

9

Table

4: Distribution

of

Depth

of Cooperation

among

All

Other

Agreements

Status

Quo

11

Little

Depth

8

Moderate

Depth

10

High

Depth

7

It

is important

not to

infer

too

much

from

these

results.

As

we

have

already

noted,

they

are

based solely

on

an estimate

of the

extent

to which

state

behavior

has

changed

in

the years

following

passage of

an agreement

and

the quality

of this

estimate

varies

with the

quality

of

the

published

studies.

t

also

says

nothing about

the

total

benefits

generated

by

a

given agreement.

t

is

possible that

some

of

the

larger,

more

shallow

Transformational

agreements

may

generate

more total

environmental

benefit

than

some

of the

deeper,


agreements.

Nonetheless,

the

results

do

suggest

the need

for

a

reexamination

of

the

common

presumptions

that the

Transformational

strategy

reliably

leads

to

ever greater

levels

of environmental

cooperation

over

time

and

is

the

only

sensible

approach

to

regime

design.

129.


often

claim that

universal

participation

is necessary

in a

multilateral s

early stages because

states will

not subsequently

join

a

regime

that

they

did

not

take part

in

creating.

The

experience of

the multilaterals

included

in this

data

set does

no t

substantiate

this. The

average


regime

more than

doubled

its

original

membership

in

the

years

following

its formation.

[ 8: 65



2000]

TR NSFORM TION L

MO EL

OF

REGIME

ESIGN

507

VII

CONCLUSION

The

Transformational model represents

an

important

contribution

to the

infant

craft

of

regime

design.

Its

emphasis

on

the

transforming

power

of

collective

deliberation

is

intuitively

appealing

and

its

design

prescriptions

are

internally

consistent

given

its

assumptions.

If

collective

deliberation

and

intraregime

information

can

reliably

transform

state

preferences

so that

even relatively

regressive

states

find

themselves

increasingly

committed

to ever

deeper

levels

of

international

cooperation

it makes

good

sense

to

be

as

inclusive

as

possible.

Membership

restrictions

would

only

lessen

the aggregate

amount

of

cooperation in the

system

with

no

concomitant

advantage.

Further

it

is modest

initial

commitments

and

negotiated

conflict

management

rather

than

coercive

enforcement

measures

that would

operate

to

prevent

states

from

thinking

that

the

costs

associated

with

membership

outweigh

the

prospective

advantages.

Notwithstanding

its

internal

consistency

and

normative

attractiveness

however

the

Transformational

theory

suffers

from

a

number

of

inherent problems. At

the

microfoundational

level

the

assumption

that

the

horizontal

interaction

that

generates

value

changes

at the

small-group

level

will

operate

in the

same

way

and

to

the

same

extent

at

the

state

level

ignores

the

many

differences

between

the

two.

The

representatives

of

states

who

negotiate

agreements

are

acting

as

agents

of

governments

not

as

individuals

and

they

rarely

have the

authority

and

the

autonomy

to

alter

state

policy

in

response

to

a personal

transformation.

Rather

they

are

embedded

in

an elaborate

bureaucratic

and

political

process

designed

to

ensure

oversight and

due

process. This

is

especially

true in

the

modem

democracies

that

are often

in

the

vanguard

for

cooperation.

We have

also

seen that

while

horizontal

interaction-based

identity

convergence

is

an important

part

of

constructivist

theory

it

is

not

the

only

constructivist

process

that

is believed

to

lead

to

state-

level

preference

change.

Another

is

characterized

in

what

Harold

Hongju

Koh

calls

Transnational

Legal

Process

theory.

It

is

equally

descriptive

and

well

grounded

in

constructivist

theory

but

its

emphasis on vertical

integration

via

the operation

of multiple

agents

operating

in multiple

institutions

suggests

that

the

details

of

an

international

institution

may

play a

small

role

in determining

the

impact

of constructivist

processes

at the

state

level.

When

one takes

into

account

the

various

nonconstructivist

sources

of

state

preference

change

the

case

for

the

general



COLUMBI

JOURN L

OF TR NSN TION L

L

applicability

of the

four

Transformational

design principles

becomes

weaker

still.

Relative

price changes

and

other

economic

changes

often

operate

to promote

deeper

cooperation

by

altering

state

preferences

but

they

tend

to

affect different

states

at different times.

Under

these

conditions

the

maximum

amount

of

cooperation

is

likely

to

be

achieved

through

the

creation

of a noninclusive

regime

that

contains

a majority

of the

most

cooperatively

progressive

states.

Such

regimes

tend to

establish

an

initial

level

of cooperation

that

is

relatively

deep

whereas

a more

inclusive

regime

in

which

the average

state

had

yet

to

be

affected

by

a change

in economic

conditions

would

do little

or

nothing.

Over

time

as

states

outside

the

regime

are

also

affected

by

the

economic

change

they

can apply

for mem bership.

The classic

example

of such

an

institution

is

the European

Union.

t

took years

for

Britain

to

recognize

the

benefits

of

closer

economic

cooperation

with

Germany

and

France.

When

Britain did

have a

change

of

heart

it had

more

to do

with

its

recognition

of

the

mounting

cost

of forgone

trade

diverted

from

it

to its

EC

competitiors

than

with

a sudden

conversion

to

an

ideology

of

a

united

Europe.

Had

France

and

Germany

included

Britain

in the

original

Coal and

Steel

Agreement

as Transformatonalism

recommends

there

is every

reason

to

believe that nothing would

have

been gained

and

many

years

of

productive

cooperation

among

a

subset

of European

states

would

have

been

sacrificed.

Worse

because

there

would

have

been

no

EC

or

a much

weaker

one

Britain

may

never

have

supported

the

degree

of

economic

cooperation

that

currently

exists.

Our

theoretical

reservations

about

the

Transformational

strategy

were

corroborated

at

least

in

a

provisional

way by

the

empirical

record.

The

case

study

evidence

suggests

that

there are

instances

when

the

Transformational

strategy

has

yielded

disappointing results and

others

where different strategies have

performed

quite

well.

More

notably

data

from

fifty environmental

agreements

fails

to

substantiate

the

central

Transformational

hypothesis.

The fourteen

agreements

designed

in

accordance

with

Transformational

principles

have

not

for the

most

part

experienced

a

significant

amount

of

cooperative

evolution

since

they

were

instituted.

Of

greater

concern

they even

lag

behind

what

has been

achieved

by

thirty-four


agreements.

Thus there

is

every

indication that

while

the

Transformational

strategy

could

well

be

optimal

in

some

contexts

there are

others

in

which

it will

not

yield all

of

the benefits

that

its

advocates

hope

and

still others

where

its

application

almost

certainly

will be

counter-

productive.

The

problem

is

that

as

things

now

stand

we

do not

know

which context

is

which.

All too

predictably

the

current

presumption

[ 8: 65



2 ]

TR NSFORM TION L MO EL OFREGIME

ESIGN 509

of the Tranformational design s effectiveness

makes research into

conditional effectiveness

appear unnecessary. Still

less

has

t

inspired

a search

for alternative design

strategies

and

guidelines

for

when they

should

be

used. This needs

to change not

so

much

because another

theory

is

obviously superior but because in

a world where the

good

being regulated

and the context in which regulation

takes place

can

vary

enormously the chances that any one

strategy should always be

employed

are very low.



COLUMBIA

JOURNAL

OF TRANSNATIONAL

LA

APPENDIX A:

INTERNATIONAL

ENVIRONMENTAL AGREEMENTS ANALYZED

ransformational

Agreements

United Nations Convention

to Combat Desertification

in those

Countries

Experiencing

Serious Drought

and/or

Desertification,

Particularly in Africa,

adopted June

17,

1994, 1954 U.N.T.S. 3.

Convention

on Biological

Diversity,

June 5 1992,

31 I.L.M.

822

1992).

United Nations Framework Convention

on Climate Change,

May 9,

1992, S.

Treaty

Doc. No.

102-38 1992) 31 I.L.M.

851 1992).

United

Nations

Food

and

Agriculture Organization

International

Code

of

Conduct on the

Distribution and se

of

Pesticides

adopted

by

FAO

Conf Res. 10/85 Nov.

28,

1985), last

modified

Jan.

11, 1999) <http://www.fao.org/ag/agp/agpp/

pesticid/code/ pmscode htm>

Basel Convention

on the

Control

of

Transboundary

Movements

of

Hazardous

Wastes

and Their Disposal,

adopted

Mar.

22,

1989,

28 I.L.M.

6572.

International

Tropical Timber Agreement, Nov

18, 1983,

1393

U.N.T.S.

67.

International

Undertaking

on Plant Genetic Resources,

U.N.

Doc. C/83/REP

1983).

Convention

for the Protection and

Development

of

the

Marine

Environment

of

the Wider Caribbean

Region, Mar. 24,

1983, T.I.A.S.

No.

11,085, 1506

U.N.T.S.

157.

United Nations Convention

on

the Law

of the

Sea,

adopted

Dec.

10, 1982, 1833 U.N.T.S.

3.

Convention

on Long-Range Transboundary Air Pollution,

adopted

Nov

13,

1979, T.I.A.S. No.

10541,

1302

U.N.T.S.

217.

Conservation

of

Migratory

Species

of

Wild

Animals, June

23,

1979, 1651

U.N.T.S. 333.

Convention

on the

Prohibition

of

Military or Any Other

Hostile Use

of

Environmental Modification Techniques,

adopted

Dec.

10,

1976,

1108 U.N.T.S.

151.

Convention

for the

Prevention

of Marine Pollution

by

Dumping ofWastes

and Other Matter,

opened or signatureDec.

29,

1972, 26 U.S.T.

2403,

1046

U.N.T.S. 120.

[38:465



TRANSFORMATIONAL

MODELOFREGIME

DESIGN

Convention on International

Trade in Endangered Species of

Wild Fauna

and Flora,

Mar. 3,

1973,

27

U.S.T.

1087, 993 U.N.T.S.

243.

Convention

for

the Protection of the Mediterranean Sea

Against

Pollution,

adopted

Feb

16, 1976,

1102 U.N.T.S. 27.

Other

Agreements

Protocol on

Environmental Protection

to

the Antarctic Treaty,

Oct. 4,

1991, 30

I.L.M. 1455

(1991).

Convention

on Environmental Impact Assessment

in a

Transboundary Context,

Feb.

25,

1991,

30

I.L.M.

802

(1991).

Convention on Early Notification of a Nuclear Accident,

adoptedSept. 26,

1986, 1439

U.N.T.S. 275.

Convention for the Protection of the Natural

Resources and

Environment

of

the

South

Pacific Region, Nov. 24, 1986,

26 I.L.M.

41 1987).

Montreal Protocol on

Substances

That Deplete the Ozone

Layer, opened

for signature

Sept.

16, 1987, 1522 U.N.T.S. 3, 26

I.L.M.

1550 (1987).

Vienna Convention

for

the Protection

of

the Ozone Layer,

opened for signature

Mar. 22, 1985, T.I.A.S. No.

11,097,

1513

U.N.T.S. 293.

Convention on the Conservation of Antarctic

Seals, June

1,

1972,

29

U.S.T.

441, 1080 U.N.T.S. 175.

Convention on Assistance in the Case of a Nuclear Accident

or

Radiological Emergency,

adopted

Sept.

26, 1986, 1457

U.N.T.S.

133,

25

I.L.M.

1377 (1986).

International Convention

for the Protection

of Birds,

Oct. 18,

1950, 638 U.N.T.S. 185.

Association of South

East Asian Nations (ASEAN)

Agreement on the Conservation of Nature and Natural Resources, 15

ENVT L POL Y

L.

64,

68 (1985).

Memorandum of Understanding

on Port

State Control in

Implementing Agreements on Maritime Safety and Protection of the

Marine

Environment,

Jan.

26,

1982,

21

I.L.M.

1

(1982).

Convention

on the

Conservation of European Wildlife

and

Natural Habitats, Sept. 19, 1979,

1284

U.N.T.S.

209.

Convention for the Conservation of

Salmon in

the

North

Atlantic, Mar.

2,

1982,

T.I.A.S.

No.

10,789,

1338

U.N.T.S. 33.

2000]



COLUMBIA

JOURN L O

TRANSNATIONAL

LAW

Convention for the Conservation and Management

of the

Vicuna, Dec. 29,

1979,

reprinted

n

UNITED NATIONS

ENVIRONMENT

PROGRAMME,

2 SELECTED

MULTIL TER L

TREATIES

IN

THE

FIELD

OF

THE

ENVIRONMENT

74

Iwona Rummel-Bulska

Seth

Osafo, eds.,

1991).

Convention on Future

Multilateral Co-operation

in North-

East Atlantic Fisheries,

Nov. 18,

1980, 1285 U.N.T.S.

129.

Convention on the Conservation

of Antarctic Marine

Living

Resources,

May

20, 1980, 33 U.S.T. 3476, 1329

U.N.T.S.

47.

Treaty

for

Amazonian Co-operation,

July

3,

1978, 1202

U.N.T.S.

51.

Organization

for Economic

Co-operation and Development,

Council Recommendation

on

Principles

Concerning

Transfrontier

Pollution,

Nov.

14,

1974,

14 I.L.M. 242

1975).

Convention on

the Protection of the

Environment

Between

Denmark,

Finland, Norway, and

Sweden,

Feb.

19,

1974,

13

I.L.M.

591

1974).

Convention on the

Protection of

the

Marine Environment

of

the

Baltic

Sea Area,

Mar.

22, 1974, 1507

U.N.T.S. 166.

European

Convention for the

Prevention of

Marine

Pollution

from

Land-Based Sources,

adopted

Feb. 21, 1974, 13 I.L.M.

352.

Agreement on the

Conservation

of

Polar Bears, Nov.

15

1973, 27

U.S.T.

3918,

13 I.L.M.

13 1974).

Convention

for the Prevention

of Marine

Pollution

by

Dumping

from

Ships and Aircraft,

Feb.

15 1972,

932 U.N.T.S. 3.

Convention

for

the

Protection of the World Cultural

and

Natural

Heritage,

adopted

Nov. 16, 1972, 27 U.S.T.

37,

1037

U.N.T.S.

151.

Convention

on

Wetlands

of

International

Importance,

Especially as Waterfowl Habitat,

Feb. 2, 1971, T.I.A.S.

No.

11,084,

996 U.N.T.S. 245.

International

Convention on Civil

Liability

for

Oil

Pollution

Damage, Nov. 29,

1969, 973

U.N.T.S. 3.

African Convention on the

Conservation of Nature

and

Natural

Resources, Sept.

15 1968,

1001

U.N.T.S.

3.

International Convention

for the Conservation

of

Atlantic

Tunas, May 14, 1966,

20 U.S.T. 2887, 673

U.N.T.S.

63.

Interim Convention

on

the Conservation

of

North

Pacific Fur

Seals, Feb. 9, 1957,

314 U.N.T.S. 105.

International

Convention for the

Regulation of

Whaling, Dec.

[ 8: 65



2 ]

TR NSFORM TION L

MO EL

OF

REGIME

ESIGN

5

2 1946

62 Stat. 1716

161

U.N.T.S.

72.

Convention on

Nature Protection

and Wild

Life Preservation

in

the Western Hemisphere

Oct.

21 1940

56

Stat.

1354

161

U.N.T.S.

229.



COLUMBIA

JOURN L O

TRANSNATIONAL

L 4W

APPENDIX

B

DEPTH

CODING

RULES

I

Deptesr Toda Vau Decito

Status

quo

No change

in

the

status quo

behavior

of

member states.

Little

depth 2

Behavior

of

minority

of

member

states (e.g.

20 )

is significantly

but not

substantially

different

from the pre-treaty

status

quo

(or

the pre-treaty trajectory).

Moderate

depth Behavior

of

the majority

of

member

states

(e.g.

over

50 )

is

significantly

but not

substantially

different from the pre-treaty status

quo

or the

behavior

of

a minority

of

member states

(e.g.

20 ) is

substantially different from the

pre-treaty

status

quo

or the pre-

treaty trajectory).

High depth

4 Behavior of

most member

states

(e.g.

80 )

is

significantly

different from

the pre-treaty

status

quo

(or pre-treaty

trajectory)

or

the behavior

of

the

majority

of

member states (e.g. 50 )

is

substantially different from the

pre-treaty

status

quo

(or

the pre-

treaty trajectory).

Very high depth

Behavior of all

member

states

(e.g. 100 )

is

significantly

different

from

the pre-treaty status

quo (or

pre-treaty trajectory) or

the behavior

of

most

member

states

(e.g. 80 ) is substantially

different from the pre-treaty

status

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