Treaty Interpretation and Treaty Process Approaches to International Environmental Law: Package Deal vs. Framework Convention

1/4 Let us focus on four things this week, as a matter of switching gears away from examining the suitability of ESG human rights litigation-based and industry standard legal approaches to international environmental law. We are now in something of a transition longer term to examining a selection of the more important international environmental law treaties (and why some may work better than others). Bottom line, in the environmental area, does a traditional law of(/between) nations approach work markedly better than an individual or group-focused rights approach?

First, we shall work a couple of technical, legal problems to do this as lawyers (as opposed to political science, international relations or IR, or environmental mavens). The first one involves the simple question of whether and how it may be permissible to use an existing, arguably non-environmental treaty to try to address transboundary problems. The hidden issue is that there are technical public international law rules for interpreting treaties that really follow Civil Law rules instead of what you might see in a Common Law system when a court tries to stretch a statute, etc. to reach a certain situation. So we shall look at the 1969 Vienna Convention on the Law of Treaties for the technical interpretive rules (the US has not joined in the treaty, but maintains that it simply states the customary law rules). This takes us into the question whether it is legitimate technically speaking to repurpose an existing treaty in order to address newer environmental problems? So what is the matter with such an approach, are we not all supposed to be creative lawyers? Or is there something peculiar to international law that ties us more closely to textual and similar interpretations, even though textual gaps and ambiguities may be unavoidable as a practical matter?

2/4 The second aspect for you to think about working from the Vienna Convention is what are the rules that apply to the problem where a state signs but does not ratify a treaty (and also the case where it ratifies and then withdraws, then rejoins, as the US apparently has done with the 2015 Paris Agreement), but other states do embrace the treaty (and so conform their behavior to its requirements, etc.). This raises questions about a treaty’s effect on (non-member) third party states. The technical question is whether at a certain point the behavior of the signatory states adhering to the treaty may produce customary law, and we ask the question here because there are important international environmental law treaties which the US has chosen not to ratify. Meanwhile, most other countries have done so, so how to treat their effects longer term? For example, the US did not ratify a core agreement in the form of the Convention on Biological Diversity (CBD), as product of the 1992 UN Rio Conference (which we shall talk about subsequently), and and we withdrew from and then rejoined the 2015 Paris Agreement related to the 1992 UN Framework Convention on Climate Change. So this question repeats itself whenever we shall examine an international environmental treaty in which the US has not joined or seemingly changes its mind about as a political matter.  For better or worse, the US has not shown great consistency in this area..

3/4 The third aspect is more procedural in terms of how best to structure reaching treaty-based agreement on international environmental problems. There were two traditional approaches in the environmental law area, namely the “package deal” versus the “framework convention” approach. Meanwhile, on the political side, IR tended more to focus on ideas like coalitions and vetos steering the negotiating process itself.

The first or package deal convention approach is premised upon addressing difficult problems in treaty form by an extended negotiation process involving vastly differing state positions and interests, where final agreement is achievable chiefly by means of a horse-trading process. (So in practice, the package deal might be regarded as resembling a contentious domestic legislative process.) The Law of the Sea Treaty (“LOS”) is the leading example of a package deal treaty with environmental and natural resource overtones. It took twelve years of repeated large, inconclusive meetings to negotiate, and in the end involved something of a trade-off between states interested in freedom of navigation like the US with its military and commercial interests, versus states more interested in natural resource issues like a 200 mile coastal fishing rights in the form of LOS’ exclusive economic zone (“EEZ”). The package deal follows the traditional truism that you should not watch the making of legislation or sausage. Notwithstanding the extended effort, the US eventually chose not to ratify LOS in 1992, adopting the position instead that its freedom of navigation provisions in the US national interest simply restated customary law anyway.

Under the second or framework convention approach, countries recognize the general outlines of a complex problem needing to be addressed, and then undertake in a minimal initial treaty agreement to fund and cooperate on the study of more specific issues, with a view to articulating policy and funding in subsequent amendments once a clearer understanding of how to address the broader problem is achieved. The problem with the framework convention approach is that it enables incremental progress in the face of uncertainty, but pushes most of the politically difficult choices into an ever-receding further future, which works until the future becomes now, at which point trade-offs may have become more constrained with the passage of time (think IPCC 2021 Report, dribbling out in three parts over the next 6-12 months). In the alternative, the argument can be made that this has been the outcome 28 years on with the 1992 UN Framework Convention on Climate Change generally, following the US’ opposition to the Kyoto Protocol (adopted in 1997, in force without US participation since 2005) and withdrawal from the 2015 Paris Climate Accord aka Paris Agreement (and subsequent rejoining), as opposed to the idea that the complex and vested interests involved would have rendered any package deal equally challenging.

4/4 The final aspect is to ask the question whether certain kinds of environmental treaties and governance are better pursued on a regional rather than worldwide basis in international environmental law terms, switching from consideration of atmospheric problems (greenhouse gases, etc.) to issues like desertification in Africa, or largely closed marine regions on the example of the Mediterranean Sea or the Persian Gulf. How do things work differently, once an environmental problem becomes more local or regional (smaller number of states involved, typically more shared interests, continuing relationships as neighboring states, etc.)?

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