The Framework Approach to Treaty Design: Is It Useful in Combating the Challenges of International Environmental Law?

I. Introduction

The Framework approach to treaty design might best be explained as encompassing broad commitments for its parties as a general system of governance, while leaving specific details of the agreement to subsequent protocols, or national regulations.[1] Such an approach to treaty design has been used extensively within the field of International Environmental Law (IEL). This Framework-Protocol model enables negotiations to be carried out in an incremental manner enabling a positive feedback loop that may inform future discussions.

The effectiveness of IEL as a discipline has traditionally been challenged by weak international consensus-building legislative processes, a lack of respect by member states for scientific evidence, which then translates into poor domestic implementation of international environmental protections. Moreover, where IEL and international trade law conflict, trade laws are supported with much stronger enforcement mechanisms and the ability to institute financial sanctions on member states.

This article questions the extent to which the framework approach to treaty design is useful in combating such challenges. This question will be examined in two parts: the first part canvases the elements of the Framework-Protocol model, and the second part measures the effectiveness of this treaty design in combating the challenges of IEL.

II. The Framework Approach to IEL

The development of international customary law commitments to environmental protection have evolved into treaty-based regimes. This reference to ‘regimes’ underlines an important element of the development of multilateral environmental agreements (MEAs): that these are not one off contracts between states, but have emerged into open-ended ‘sets of implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge’.[2] Within the field of IEL, international agreement therefore has frequently taken the form of dynamic, long-term regimes, including the Framework-Protocol model, institutionalisation and an ongoing process of standard setting.[3]

The adoption of Framework Conventions is a relatively recent creation of international law. According to this approach, parties agree to a general or ‘framework’ treaty along with more detailed regulations in the form of ‘protocols’ which establish specific regulations and targets.[4] There are no fixed models for Framework agreements, nor does the term have any technical meaning.[5]

The Framework-Protocol model serves two basic functions. First, it enables negotiations to proceed in an incremental manner. This means that states can achieve a broad agreement without having to achieve consensus upon the finer details of the regulations.[6] The initial agreement establishes the general architecture of the regime, including its objective, principles, basic obligations and institutions.[7] Protocols are then negotiated and build on the parent agreement through the elaboration of more specific commitments, which include more concrete obligations on the part of states.[8] Within the context of IEL, the Framework Convention enables states to address problems in a step-by-step manner rather than negotiate enduring commitments that form a final binding agreement.[9]

The second function of Framework agreements is that they create positive feedback loops that facilitate the deepening of the regime and a creation of their own momentum.[10] The operation of the Framework Convention and its resultant regular meetings of parties can help generate normative consensus and provide a forum for ongoing debate which helps establish trust amongst participants.[11] As Bodansky claims, once the Framework Convention is in place “the international law-making process begins to take on a momentum of its own”.[12] It may be the case that states that indicate an initial reluctance to engage in the process begin to acquiesce in the seemingly harmless process set in motion by the Framework Convention. However, this view is not universally supported. Downs et al present empirical evidence that regimes designed according to the Framework-Protocol model have actually generated less cooperation than other forms of agreement.[13]

III. The Effectiveness of Treaty Design in Combating the Challenges of IEL

A. The Weak Legislative Process in IEL  

One of the most daunting challenges within the realm of IEL is the adequacy itself of the legislative process. Questions relate to both the substance and procedure in both creating effective environmental protection through international law and the ability to achieve consensus amongst sovereign states in this area.[14] Fragmentation is a particular challenge within the regime of IEL, as it emphasises the isolation and disconnects between regimes and institutions within the IEL regime.[15] IEL also comprises of multiple regimes and institutions, giving rise to overlapping and, at times, conflicting legal and policy mandates.[16] Fragmentation need not be a negative phenomenon, since conflation and overlap between mandates can provide opportunity for improving synergies between policies and plans and more effective implementation of MEAs; it does, however, present a challenge which requires linkages within governance strategies.[17] The Framework approach, to an extent, addresses the issue of fragmentation in that it brings together a set of agreements within an established structure which enables later agreements to build upon progress made in earlier agreements. It can establish common institutions which will engage in the ongoing development process and thus tying agreements together based upon similar themes.

The Framework-Protocol model can also address challenges within the legislative process itself. The incremental approach to treaty development implicit within this model is a design feature that seeks to promote participation, since the opportunity to actively shape subsequent commitments is reserved to treaty parties.[18] This model therefore seeks to engage broad participation and then deepen parties’ commitments over time.[19] Thus, while a Framework Convention does seek to engage states to implement more exacting commitments, they are under no obligation to consent to more ambitious or specific commitments by becoming parties to the initial treaty.[20]

Most modern MEAs, including the UNFCCC, adopt a ‘broad but shallow’ approach within the design of the framework treaty, later backed up with a ‘narrow but deep’ approach within subsequent protocols.[21] The UNFCCC, as a Framework agreement, lays out several broad commitments and principles. The Kyoto Protocol[22] then established the specific ways in which countries would lower greenhouse gas emissions and by how much.[23] Theoretically, this helps overcome difficulties related to the legislative process in that States are able to establish more general agreements first, which may be more acceptable to States fearing loss of sovereignty in specific areas. Once States have accepted these general commitments, deeper but time limited commitments can be negotiated, both in terms of commitment phases and also phase out schedules such as in the Montreal Protocol, which seek to achieve the broad goals established within the Framework Convention. This helps overcome difficulties inherent with other treaty formats requiring one-time only agreements which are notoriously harder for consensus building. 

B. Inadequate Domestic Implementation

Ambitious environmental protection measures at the international level will not be meaningful unless implemented at the national level.[24] Competing political and economic goals of incumbent leaders are often contributing factors to the failure of the implementation of international measures.[25] While former US President Obama was fully supportive of the Paris Agreement, and had announced plans to reduce CO2 emissions through the Clean Power Plan,[26] his successor President Trump pledged to reverse Obama’s climate change measures, and in 2017, announced the US intention to withdraw from the Paris Climate Accord.[27] Environmental protection measures are by no means universally supported and might easily be subjected to the political whims of incumbent politicians.

The Kyoto Protocol adopted an alternative approach in which a smaller group of developed state parties undertook a deeper level of commitments. The Paris Agreement now involves comparative commitments across the board and includes the concept that parties’ nationally determined climate actions ‘will represent a progression over time’.[28] Domestic implementation can be assisted by this concept of Common but Differentiated Responsibilities and Respective Capabilities (CBRRRC) which have been incorporated within the Framework-Protocol model of IEL.[29] 

Within the Paris Agreement, the principle of CBRRRC is now qualified by the phrase ‘in the light of different national circumstances’ and differentiation is tailored to each issue area.[30] Hence, distinct regimes for States Parties, which seek to reflect the capacity of the party to engage with the commitments therein, can help improve measures towards domestic implementation by establishing realistic targets based upon individual capacity rather than a ‘one size fits all’ approach. This measure also illustrates the incremental approach, since NDCs are not based upon a single submission and can be communicated every five years. Article 4 of the Agreement also enables a party to adjust its NDC at any time to enhance its level of ambition.[31] This incremental approach is not without significant drawbacks, as each member state is free to self-impose modest targets which will undermine its contribution to the global solution.

Benveniste et al observe that, to date, currently-established NDCs under the UNFCCC have failed to establish projected reductions in GHG emissions sufficient to fulfil long-term temperature goals.[32] The incremental approach inherent within the Framework-Protocol treaty model appears to fail to overcome these challenges of IEL but has had the impact of enabling States Parties to defer commitments. Benveniste concludes that much greater reductions in GHG emissions through NDCs will be necessary after 2030[33] to sustain the increase in global temperatures at well below 2 degrees celsius, while pursuing efforts towards a 1.5 degree celsius limit.[34]

C. Lack of Respect for Scientific Evidence

While clear and compelling scientific evidence demonstrates the existence of environmental imperatives, political and economic concerns often cause states and other international law-makers not to act where legislative measures are clearly indicated.[35] Shao has collected data from the 2012 US election which examines how religion, politics, weather and climate affect the view of US voters in relation to their view of climate change.[36] US citizens are shown to have been more inclined to believe political leaders in determining their views on climate change, with evangelical fundamentalism being the most consistent factor amongst religion-related variables for those who deny the anthropogenic cause and adverse impact of global warming.[37] Lack of political imperative, therefore, despite the compelling scientific evidence, creates significant obstacles to the creation of comprehensive IEL measures.[38]

The flexibility with Framework Conventions does enable them to be able to respond to scientific, technical and other changes. This flexibility is partly dependent upon the provisions for the adoption of protocols, annexes and methods of modification and assessment, but also partly dependent upon the architecture of the regime itself.[39] For instance, the UNFCCC established subsidiary bodies, such as scientific updates and implementation. Scientific understandings of climate change and its increasing risks have changed considerably between the initial Rio Conference of 1992 and the Paris Agreement of 2015.[40] The difficulties with the adoption of Protocols based on such changes is that they are also treaties and the drafting process and adoption can be incredibly lengthy; the Paris Agreement was adopted after an impasse of 17 years.[41]

D. Poor Compliance with IEL

In certain instances, IEL comes into conflict with other areas of international law. Due to IEL's poor enforcement mechanisms, and the much greater enforcement powers of the WTO Appellate Body, IEL obligations have been overruled by trade laws. In Canada-Renewable Energy, Canada’s subsidies towards renewable energy programmes were challenges as being in breach of the WTO Agreement on Subsidies and Countervailing Measures.[42] As Rubini observes, despite renewable energy being in need of public support, WTO regulatory frameworks have failed to recognise appropriate autonomy for such measures.[43] Notwithstanding the fact that climate change is dubbed the ‘greatest and widest-ranging market failure ever seen’,[44] WTO policies have failed to adhere to economic theory which posits public intervention when the market fails.[45] The challenge for IEL therefore is how to overcome conflicts with trade laws which are supported by much stronger enforcement mechanisms as well as financial sanctions.[46]

The efficacy of environmental regulation is limited by in the absence of effective enforcement, which must include inspections and monitoring to determine compliance.[47] While the EU has been at the forefront of environment initiatives, inspection systems have been a sensitive issue due to the fact that they involve internal administrative operations of the governments of member states.[48] While enforcement mechanisms now exist within a number of key EU environmental directives, an overall framework is lacking. A number of important areas such as air and water pollution have no current mechanisms for enforcement.[49] To date, much of the coordination in this area has taken place in an ad hoc manner through an informal network of national environmental authorities (IMPEL) rather than at the EU level.[50] The difficulties of inspection programmes within the EU highlight the greater difficulties of establishing effective inspection regimes as a part of international environmental agreements, which engage much less homogenous groups.

It is difficult to see how the Framework-Protocol approach can overcome the difficulties of compliance and enforcement which can be associated with the lack of political will to engage with the commitments of IEL. Within the academic scholarship however, there are arguments that the Framework approach can make this achievable. The Framework-Protocol model has often been associated with constructivist scholars such as Brunnee and Toope, who specifically urge the use of this approach to treaty design.[51] They consider that it is undesirable to negotiate strong IEL treaties without an incremental process incumbent within this methodology, highlighting the catalytic role of Conference of the Parties (COPs) under these type of regimes. Brunnee and Toope are optimistic in that, once the “contextual” agreement initiates the dynamic process of the Framework-Protocol approach, it will evolve in the direction of deeper substantive commitments.[52] Slaughter affirms that their argument is strongly teleological.[53] 

It is not clear exactly how the dynamic process can achieve deeper substantive commitments where such commitments are politically unpopular. The dynamism of the process also allows for political change within member states, where new governments who are not supportive of the process are able to reverse decisions of previous administrations. The international ozone regime is the classic success story of this approach. It began with the multilateral and legally binding, but substantively shallow, Vienna Convention for the Protection of the Ozone Layer.[54] As the scientific understanding of the threat posed by ozone depletion grew, the Convention was supplemented by the Montreal Protocol, which established precise targets to limit the emissions of ozone depleting substances.[55] 

The successes of the Ozone regime might not, however, be attributed to the particular framework of the agreement, although it did assist with the process: the Convention was almost universally ratified, and nations complied with their obligations which lead to a reduction in ozone-depleting chemicals by 95%.[56] Considered pragmatically, it appears its success has little relationship with the Framework-Protocol approach. A more likely reason for its success is that US companies were able to benefit significantly through the creation of chemicals which would replace those that destroyed the ozone layer. The US government thus fought aggressively for the Protocol.[57] This can be viewed in contrast with the Kyoto Protocol and Paris Accord, where the US have withdrawn from the agreements, citing harm to the US economy as a leading factor.[58] 

IV. Conclusion

The Framework approach to treaty design has distinct benefits within IEL, particularly in addressing the need to account for changes in environmental science, and in the establishment of an incremental approach to treaty agreement. It enables a smaller group to take on a deeper commitment and for nationally defined targets to be established that can be altered through subsequent agreements. In practice however, success in IEL agreements has often been more closely attributed to the political will of the parties and that of the stronger economies. US support for the Montreal Protocol was clearly guided by its economic interests in the promotion of technologies that supplanted ozone-destroying chemicals. This can be clearly contrasted with the Republicans' lack of support for the Kyoto Protocol and withdrawal from the Paris accord, citing economic harm to the US economy as a major factor. While the ozone-layer regime did take the form of a Framework-Protocol treaty system, its success has much less to do with the design of the treaty, than it has to do with perceived economic benefits to the US economy. It is therefore unlikely that any type of treaty design can ever overcome fluctuations in the domestic implementation of international environmental protections.

References & Notes

[1] Nele Matz-Lück, ‘Framework Agreements’ (Max Planck Encyclopedia of Public International Law, February 2011) <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e703> accessed 12 November 2019.

[2] Stephen D Krasner, ‘Structural Causes and Regime Consequences: Regimes as Intervening Variables’ (1982) 36 International Organization 185, 186.

[3] Catherine Redgwell, ‘Multilateral Environmental Treaty-Making’ in Vera Gowlland-Debbas (ed), Multilateral Treaty-Making:The Current Status of Challenges to and Reforms Needed in the International Legislative Process (Springer, 2000) 89.

[4] Nele Matz-Lück, ‘Framework Conventions as Regulatory Tools’ (2009) 1 Goettingen Journal of International Law 439, 440.

[5] Daniel Bodansky, ‘The Framework Convention/Protocol Approach’ (Geneva: World Health Organization 1999) WHO/NCD/TFI/99.1 <https://apps.who.int/iris/handle/10665/65355> accessed 12 November 2019.

[6] Daniel Bodansky, Jutta Brunnée and Lavanya Rajamani, International Climate Change Law (Oxford University Press, 2017) 57.

[7] Daniel Bodansky, The Art and Craft of International Environmental Law (Harvard University Press, 2010) 186.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Ibid 187.

[13] George W Downs, Kyle W Danish and Peter N Barsoom, ‘The Transformational Model of International Regime Design: Triumph of Hope or Experience’ (1999) 38 Columbia Journal of Transnational Law 465, 465.

[14] Philippe Sands and others, Principles of International Environmental Law (Cambridge University Press, 4th Edition, 2018) 16.

[15] Karen N Scott, ‘International Environmental Governance: Managing Fragmentation through Institutional Connection’ (2011) 12 Melbourne Journal of International Law 177, 177.

[16] Karen Scott, ‘Opinio Juris ? Blog Archive International Environmental Governance: Managing Fragmentation through Institutional Connection - Opinio Juris’ (6 December 2011) <https://opiniojuris.org/2011/12/06/international-environmental-governance-managing-fragmentation-through-institutional-connection/> accessed 13 November 2019.

[17] Thomas Gehring and Sebastian Oberthur, ‘Interplay: Exploring Institutional Interaction’ in Oran R Young, Leslie A King and Heike Schroeder (eds), Institutions and Environmental Change: Principal Findings, Applications, and Research Frontiers (MIT Press, 2008) 197.

[18] Bodansky, Brunnée and Rajamani, above n 6, 61.

[19] Bodansky, above n 7, 187.

[20] Bodansky, Brunnée and Rajamani, above n 6, 61.

[21] Ibid.

[22] Kyoto Protocol to the United Nations Framework Convention on Climate Change, UN Doc FCCC/CP/1997/7/Add1 1997.

[23] Paul G Harris, ‘Common But Differentiated Responsibility: The Kyoto Protocol and United States Policy’ (1999) 7 New York University Environmental Law Journal 27, 27.

[24] Sands and others, above n 14, 16.

[25] Elizabeth Bomberg, ‘Environmental Politics in the Trump Era: An Early Assessment’ (2017) 26 Environmental Politics 956, 956.

[26] David M Konisky and Neal D Woods, ‘Environmental Federalism and the Trump Presidency: A Preliminary Assessment’ (2018) 48 Publius: The Journal of Federalism 345, 345.

[27] Ibid 346.

[28] Paris Agreement, UN Doc FCCC/CP/2015/L9 (12 December 2015) art 3, 4.3.

[29] Harris, above n 23, 27.

[30] Bodansky, Brunnée and Rajamani, above n 6, 62.

[31] Paris Agreement, art 4.

[32] Hélène Benveniste and others, ‘Impacts of Nationally Determined Contributions on 2030 Global Greenhouse Gas Emissions: Uncertainty Analysis and Distribution of Emissions’ (2018) 13 Environmental Research Letters 014022, 1.

[33] Ibid 7.

[34] Paris Agreement.

[35] Sands and others, above n 14, 16.

[36] Wanyun Shao, ‘Weather, Climate, Politics, or God? Determinants of American Public Opinions toward Global Warming’ (2017) 26 Environmental Politics 71, 71.

[37] Ibid.

[38] Cheryl Cox-Macpherson, ‘Climate Change Is a Bioethics Problem’ (2013) 27 Bioethics 305, 306.

[39] Matz-Lück, above n 4, 453.

[40] Marcelo Santos, ‘Global Justice and Environmental Governance: An Analysis of the Paris Agreement’ (2017) 60 Revista Brasileira de Política Internacional <https://www.scielo.br/scielo.php?script=sci_abstract&pid=S0034-73292017000100209&lng=en&nrm=iso&tlng=en> accessed 14 November 2019.

[41] Marie-Claire Cordonier Segger, ‘Advancing the Paris Agreement on Climate Change for Sustainable Development’ (2016) 5 Cambridge Journal of International and Comparative Law 202, 2.

[42] WTO Appellate Body Reports, Canada - Certain Measures Affecting the Renewable Energy Generation Sector / Canada- Measures Relating to the Feed-In Tariff Program WT/DS412/AB/R and WT/DS426/AB/R.

[43] Luca Rubini, ‘Ain’t Wastin’ Time No More: Subsidies for Renewable Energy, The SCM Agreement, Policy Space, and Law Reform’ (2012) 15 Journal of International Economic Law 525, 527.

[44] Nicholas Stern, The Economics of Climate Change: The Stern Review (Cambridge University Press, 2007) i.

[45] Rubini, above n 43, 528.

[46] James Bacchus, The Willing World: Shaping and Sharing a Sustainable Global Prosperity (Cambridge University Press, 2018) 165.

[47] Thijs Etty and others, ‘Transnational Environmental Law on the Threshold of the Trump Era’ (2017) 6 Transnational Environmental Law 1, 3.

[48] Ibid.

[49] Ibid.

[50] Martin Hedemann-Robinson, ‘Environmental Inspections and the EU: Securing an Effective Role for a Supranational Union Legal Framework’ (2017) 6 Transnational Environmental Law 31, 35.

[51] Jutta Brunnee and Stephen J Toope, ‘Environmental Security and Freshwater Resources: Ecosystem Regime Building’ (1997) 91 The American Journal of International Law 26, 28.

[52] Ibid 67.

[53] Anne-Marie Slaughter, ‘International Law and International Relations’ (2000) 285 Recueil des Cours 9, 9.

[54] Vienna Convention for the Protection of the Ozone Layer, opened for signature 22 March 1985, 1513 UNTS 293 (entered into force 22 September 1988).

[55] Kenneth W Abbott and Duncan Snidal, ‘Pathways to International Cooperation’ in Eyal Benvenisti and Moshe Hirsch (eds), The Impact of International Law on International Cooperation: Theoretical Perspectives (Cambridge University Press, 2004) 56.

[56] Cass Robert Sunstein, ‘Montreal versus Kyoto: A Tale of Two Protocols’ [2006] Public Law & Legal Theory Working Papers No. 136 1, 6.

[57] Ibid.

[58] Hai-Bin Zhang and others, ‘U.S. Withdrawal from the Paris Agreement: Reasons, Impacts, and China’s Response’ (2017) 8 Advances in Climate Change Research 220, 220.