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Designing Enforceable International Treaties: The Minamata Convention on Mercury

Thu, September 15, 8:00 to 9:30am, TBA

Abstract

This paper asks why multilateral environmental agreements (MEAs) have increasingly favoured a cooperative approach to treaty compliance since 1990, with non-jurisdictional compliance mechanisms being included more frequently than ever before. The Minamata Convention on Mercury is selected as a typical case of successful MEA negotiations, whose final text includes a facilitative and non-punitive body to encourage compliance with the treaty’s substantive obligations. Through 25 semi-structured interviews with negotiators, this paper traces the causal process that led to the adoption of the Convention’s Article 15 on compliance, leading to the creation of an Implementation and Compliance Committee.

Existing literature often starts from the assumption that states rationally identify and bargain for the set of provisions, or treaty design, that best serves their interests, including compliance provisions. Following this logic, the preference for cooperative compliance provisions can be explained through the specific nature of environmental commitments and the challenges associated with their implementation. Violations have a diffuse rather than targeted impact, in addition to being difficult to monitor, and are often related to a lack of capacity or resources. The incentive for states to initiate jurisdictional dispute settlement procedures is thus low, making them reluctant to include a potentially binding but less effective mean of inducing compliance in a given treaty.

However, new coding shows that cooperative compliance mechanisms have been included in treaties dealing with distinct environmental issues, whose problem structure and enforcement challenges vary, highlighting potential limits to bargaining-based explanations of treaty design. This paper sets forth a causal mechanism that aims to account for previous interactions and experience among individual negotiators, as an essential complement to fully understand outcomes in treaty design. It suggests that through repeated interactions, public officials from distinct countries come to form transnational policy communities (TPC) that share common understandings, norms and beliefs, including regarding the enforcement of the treaties with which they are involved. This proposition is crucial to successfully explain treaty design, as belonging to a TPC is thought to precondition the design options that public officials will even consider in the bargaining phase that fallows. Negotiators thus tend to develop a preference for cooperative enforcement means, which, although it starts from a strict rational evaluation that they are more effective, ultimately becomes a more unreflective, unconscious belief. In turn, the inclusion of such provisions in new treaties reinforces the general belief in their appropriateness, further increasing the likelihood that they will be reused in the future.

This causal mechanism is tested through process tracing, using the Minamata Convention as a case study. The interviews strongly confirm that negotiators who had previous experience negotiating other MEAs or participating in their implementation came in with a previous knowledge of one another, as well as established preferences for treaty design. Sharing a professional role appears to be a large explanatory factor behind design preferences, with communities of lawyers and scientific experts explicitly distinguishing themselves from one another. Several public officials who came in with different backgrounds further describe feeling like “outsiders”, with “insider” ideas being difficult for them to modify. The strength of transboundary links between individuals, however, also depends on other common links that, too, influence preferences: similar practices regarding mercury, a shared language, belonging to a regional group, as well as similar legal traditions. There is also evidence that bargaining played a significant part to reconcile differing preferences across these groups, with the preservation of state sovereignty being a particular concern for certain regional groups.

This paper confirms the necessity of accounting for individual-level factors to better understand treaty design as a whole. The transnational policy community lens provides a structured account of the impact that group ideas and beliefs, as well as the oft-forgotten transboundary interactions between individual negotiators, can have on decision-making. In this sense, it adds a new layer of depth to analyses of environmental negotiations that better reflects the dynamic nature of negotiations as well as preferences regarding international dispute settlement options.

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