University of Toledo College of Law

PROPOSAL 29

Benjamin G. Davis1 University of Toledo College of Law

Dedoublement Analytique: Avoiding Making a Virtue of Ignorance

What I would like to add to the literature on international law and the United States is to engage with two visions simultaneously: Vision (1) is centered on the internal U.S. foreign relations law vision (i.e. from the Constitution down in U.S. foreign relations law) and Vision (2) is centered on the external international law vision (i.e. from the United States obligations outward vision). Under Vision (1) when the President is acting pursuant to his Constitutional commander-in-chief powers (and particularly with Congressional support) he is at the zenith of his power and, as a matter of internal law, can act in a manner inconsistent with customary international law and treaty obligations.2 The allocation of roles between the Executive, the Legislative, and the Judiciary of the United States Federal Government is the manner in which international law (or departures from it) operates in the United States.3 The internal doctrines that impact on how international law operates within the United States are the essential doctrines - what we do in the United States is what matters.4 The impact of other states is measured by the means with which we can exert our power to have them acquiesce in our actions, even if our actions are illegal as a matter of external visions of international law. Under Vision (2) international law constrains the United States as it does each state. Whatever the United States does as a matter of internal law is immaterial, the essence is whether the United States is in compliance with its international obligations. The United States may have internal interpretations of international law that are exotic, but the question that remains at the center is – whatever the internal rules – is the United States in compliance or breach with its international obligations. A second aspect of this external vision is that if the United States is in breach of its international law obligations, what will the other states do about bringing the United States into compliance. At this point, the economic, intelligence, military, political and diplomatic intersect with the legal as the other states

1 Associate Professor of Law, University of Toledo College of Law 2 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Justice Jackson’s concurring opinion), Dames & Moore v. Regan, 453 U.S. 654 (1981), E.g. The Chinese Exclusion Case, 130 U.S. 599-602, Edye v. Robertson (The Head Money Cases), 112 U.S. 580, 597-599 (1884), Chew Heong v. United States, 112 U.S. 536 (1884), as discussed in United States of America v. Palestine Liberation Organization, 695 F. Supp 1456 (S.D. N.Y. 1988), The Paquete Habana, 175 U.S. 677 (1900); See generally Jeffrey L. Dunoff, Steven R. Ratner and David Wippman, International Law Norms, Actors, Process, Second edition (Aspen 2006) (hereinafter Dunoff, Ratner and Wippman Casebook) 3 See generally Chapter 5 International Law and Domestic Law of Dunoff, Ratner and Wippman Casebook and Chapter 3 International Law and Municipal Law of Lori Fischer Damrosch, Louis Henkin, Richard Crawford Pugh, Oscar Schachter, and Hans Smit, International Law Cases and Materials, Fourth Edition (West 2001) (hereinafter Henkin Casebook). 4 Id. in the world determine the approach they each wish to take to the Americans – acquiescence or horizontal enforcement5.

Building on the dedoublement fonctionnel (role-splitting) idea as to the roles of states in the “creation of” and as subjects of international law in the international community6, I am suggesting that the citizen observer is able to have “second vision”7 consisting of both evaluating the United States in an internal international law perspective and evaluating the United States in an external international law perspective of other states and international organizations as to United States compliance with international law obligations. I would like to call this type of second vision the dedoublement analytique - the essence of the evaluative process of this essay.

Figure 1 Second vision or Dedoublement analytique

5 See generally Lori Damrosch, Enforcing International Law Through Non-forcible Measures, 269 Rec. des Cours 19-22, 24 (1997) reprinted in Henkin Casebook pages 23-24. 6 Louis Henkin, International Law: Politics and Values, 74-75 (1995), reprinted in Henkin Casebook pages 180-181. See generally the essays at The European Tradition of International Law: Georges Scelle, ! European Journal of International Law 193-250 (1990) and in particular, Hubert Thierry, The Thought of Georges Scelle, Id at 193 and Antonio Cassese, Remarks on Scelle’s Theory of “Role Splitting” (“dedoublement fonctionnel” in International Law) and footnotes to G. Scelle’s work, Id at 210 (1990) available online at http://www.ejil.org/journal/Vol1/No1/index.html (Last visited on March 10, 2007). I recognize my debt to G. Scelle and the European Tradition which clearly influences this work. In so doing, I do not consider myself bound to the assumptions said to underlie G. Scelle’s work. Id. at 210. 7 I prefer “second vision” to a variation on the idea of role splitting because the idea of a split analysis separates the internal and external perspective. In this more holistic method, it is essential for the citizen to both see the internal and external perspectives – see the harmonies and discontinuities between the two perspectives– in order to better understand what is at stake in the manner his state is operating on the international plane. Holding the two visions, in this approach, is the method to see and understand – not one or the other vision. Figure 1 helps understand the idea. For the United States the Constitutional allocation of roles (Executive, Legislative and Judiciary at the Federal level) as regards international law and international law’s role in United States federalism (Executive, Legislative, and Judiciary role at the state level) makes for a complex series of internal law doctrines and debates. The traditional view (now called the modern position) of customary international law as federal law is free to be contested by the more recently argued view (now asserted as a traditional view) that it is state law – with the impact of all this on the supremacy of international law as a constitutional matter.8 Self-executing vs. non-self-executing treaty doctrines, state secret doctrines, federal officer immunity doctrines, and political question doctrines play their role in shaping this internal space in how the United States meets or attempts to change its international obligations. Looking out to the rest of the world (Brazil, Canada and the United Kingdom being picked at

8 Jack Landman Goldsmith & Curtis Bradley. "Customary International Law as Federal Common Law: A Critique of the Modern Position," 110 Harv. L. Rev. 815 (1997). Harold Hongju Koh, “Is International Law Really State Law?”, 111 Harv. L. Rev. 1824 (1998) random) the internal mechanisms of these other countries are of only marginal interest. These are blank slates on which the United States can seek to assert influence to shape or at least get these states to acquiesce in the United States view.

At the same time, the rules of international law are knowable as obligations between states that are not determined by the internal laws of each state. The internal law view of the given international law rule can be measured on the international plane to determine whether a state is acting in compliance with the international rule. Being able to make both those analyses as one looks at the United States is useful to help understand our approach and express the ebb and flow in my country as regards its international obligations. This dynamism is reflected in the governmental action but also in the reaction of civil society to the positions taken by our government (Executive, Legislative and Judiciary).

Those who focus only on the foreign relations law aspects (internal law described from the Constitution down) seem to be deaf to the dissonance that may be a result of the U.S. approach. One can enthusiastically enter into debates about how customary international law is viewed as a matter of U.S. internal law (the meaning of The Paquete Habana 9as one topic, the Charming Betsy10 canon as another, and whether international law is state or federal law as a third11) and whether treaties are self-executing or not12. This approach while fascinating as a process of “blocking and tackling” through Federalism and Constitutional law paradigms that are rich and diverse appears to miss the forest for the trees. The reason is that, particularly in this “War on Terror”, the discussion seems to force one to center one’s attention on the wrong thing - the relative roles of the coequal branches of the Federal Government – the American structure of organizing our state. Whether or not the internal view properly calibrates the internal impact of international law, the external view has the blessing of focusing one’s attention on the essence – is the U.S. acting in a manner that is in compliance with its international law obligations? If not, what can we do about it? Thus, I have a significant quibble with the method of those who focus on U.S. foreign relations law and Constitutional law concerns as an expression of the U.S. approach to any issue in international law for those writers seem to discount the brakes of horizontal enforcement too quickly in their assertion of U.S. uber-power to change the world.

At the same time, focusing on the international law perspective do is also problematic. In this setting, one might miss important trees for the forest. The perspective of the foreign court or the international tribunal well versed in the rule that international obligations fall on the state whatever its organization, misses a significant specificity about the transnational impact of U.S. internal approaches. Without falling into the trap of American exceptionalism, as such a powerful force on many levels in the world, the United States is extremely influential - particularly in the “War on Terrorism.”

9 The Paquete Habana, 175 U.S. 677 (1900) 10 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 65, 118 (1804) 11 Goldsmith and Bradley and Koh, footnote 14, supra 12 Missouri v. Holland, 252 U.S. 416 (1920); See Carlos Vazquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Intl. L. 695 (1995) discussed in Dunoff, Ratner Wippman Casebook p. 315. This influence – which is not a diktat - puts great pressure on other states as to how to respond as given rules of international law are interpreted and seen to evolve by the United States.13 Treaty interpretation and evolution of customary international law rules through changes of practice by such a significant power are subjects of great attention. Those determinations may refract in the practices of states that accommodate the U.S. approach. New formulations or understandings (and possibly propulsing new conventions like a new Geneva Convention)14 may be pushed by the United States. In this praxis, resistance to those new approaches may harden as a form of horizontal enforcement of existing international norms.

13 A classic example are the U.S. efforts to reinterpret the Treaty on the Limitation of Anti-Ballistic Missile Systems 23 U.S. T. 3435 (1972) in the Reagan Administration in 1983-1985, and subsequently with the Bush Administration withdrawal in December 2001 and agreement to the Treaty on Strategic Offensive Reductions of 2002. See Dunoff, Ratner, Wippman Casebook at p. 35 et seq. 14 “Senator Schumer. Let me ask you another question, and that is this: We have had a lot of talk about the Geneva Convention and what has happened in the past. I want to ask you a prospective question about the Geneva Convention. Do you think that we should seek revisions of the Geneva Convention in the future? I do not know if that is right or wrong, but do you think we should? Have there been any discussions in your office as Counsel or in the White House or in the administration as to whether we should seek those revisions? And if there is a determination that we should seek certain revisions--and I do not know what they would be; they might be reasonable--should Congress be include in that discussion? Judge Gonzales. Thank you, Senator, for that question. I think it's a very good question because we are fighting a new type of enemy and a new type of war. Senator Schumer. Sure. Judge Gonzales. Geneva was ratified in 1949, Geneva Conventions, and I think it is appropriate to revisit whether or not Geneva should be revisited. Now, I'm not suggesting that the principles of Geneva regarding basic treatment, basic decent treatment of human beings, should be revisited. That should always be our polestar. That should always be the basis on which we look at this. But I am aware--there has been some very preliminary discussion as to whether is this something that we ought to look at. I'm also aware that certain academicians and international law scholars have written on this subject as to whether or not should we revisit Geneva and asked whether or not the Senate should play a role or the Congress should play a role. Obviously, if you're talking about modifications of Geneva or a new treaty, the Senate would play a very important role in the ratification process. Senator Schumer. I understand that, but what I am saying is if the new administration were to begin internal discussions on whether Geneva should be modified and in what way, would they include the Senate in those discussions rather than saying here is what we recommend? You know, I mean, obviously this needs to be negotiated in a multilateral way. But would you include us in those--or would you recommend to the President that we be included in those discussions? One irony is that the American citizen observer who is not at the heights of society might be in a peculiarly fortunate position to be able to hold in thought both the internal and external visions of the United States – to successfully do the dedoublement analytique so to speak. Without the pressure of the great responsibilities of those at the heights of the society one is not as informed but one may also be less distracted by one’s actions being interpreted also by other countries – less worry about the dedoublement fonctionnel. While not necessarily unified in approach or solution, those in the heights have to weigh their choices in light of their responsibilities to protect the national security – a burden that falls heavily upon them. The citizen may be a patriot but is not subject to the daily pressure of being the decider(s).

While not a role at the center of power, the citizen observer’s role no matter how minor is not one, however, to be considered as frivolous. On the contrary, from an external perspective I am drawn back to Hersch Lauterpacht’s “The Reality of the Law of Nations” a lecture given at the Royal Institute of International Affairs, Chatham House,

Judge Gonzales. Before answering a question, I want to emphasize, when I indicate that there's been some discussion within the White House or the administration, it's not been a systematic project or effort to look at this question, but some--I know certainly with the people that I deal with, the lawyers have questioned maybe this is something that ought to be looked at. So I do not want to leave the impression-- Senator Schumer. I do not hold any brief against that. Obviously, you can re-examine these things. Judge Gonzales. And it seems to me that it's probably always better to consult with the Senate since the Senate is going to have a role in the ratification process. I think consultation is usually better than not consulting. Senator Schumer. Okay. And there is no proposal you know that is being formulated right now, is there? Judge Gonzales. Not that I'm aware of, Senator. Senator Schumer. Thank you. Thank you, Mr. Chairman.” Confirmation hearing on the nomination of Alberto R. Gonzales to be Attorney General of the United States, Committee on the Judiciayr, United States Senate, 109th Cong. (2005). See generally, Sean D. Murphy, "Evolving Geneva Convention Paradigms in the 'War on Terrorism': Applying the Core Rules to the Release of Persons Deemed 'Unprivileged Combatants'" . George Washington Law Review, Vol. 75, 2007 Available at SSRN: http://ssrn.com/abstract=958380; John Yoo, The Status of Soldiers and Terrorists under the Geneva Conventions, 3 Chinese J.I.L. 135 (2004); Benjamin G. Davis, Keeping Our Honor Clean: A Response to Professor Yoo, 4 Chinese J.I.L. 745-750 (2005); Memorandum from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, to Alberto Gonzales, Counsel to the President (7 February 2002) Status of Taliban Forces Under Article 4 of the Third Geneva Convention reprinted in Mark Danner, Torture and Truth 96 (2004); George H. Aldrich, The Taliban, Al Qaeda and the Determination of Illegal Combatants, 96 Am. J. Int’ L. 891 (2002); Memorandum from William H. Taft IV, Legal Adviser, U.S. Department of State, to Alberto Gonzales, Counsel to the President (2 February 2002), Comments on Your Paper n the Geneva Convention, reprinted in Mark Danner, Torture and Truth 94 (2004); Memorandum from William H. Taft IV, Legal Adviser, U.S. Department of State, to John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice (11 January 2002) Your Draft Memorandum of January 9, 2002 available online at http://pegc.no- ip.info/archive/State_Department/taft_memo_20020111.pdf) London, on May 27, 1941 in some of the darkest days of World War II. Lauterpacht wrote,

“Constructive thought in the field of international organization must continue to be based on the view that while the protection of true sovereignty, conceived as independence of the power of other States, is the main purpose of international law, its reality has been thwarted by certain manifestations of State sovereignty and that a surrender or limitation of some aspects of that sovereignty are still the essential condition of the effectiveness of the Law of Nations. The fulfillment of that condition depends not only on the acquiescence but on the determination of the individual citizen.”15 (Emphasis added)

From an internal perspective, I am drawn to the words spoken at a meeting of the American Society of International Law (ASIL) on April 13, 1945 by Robert H. Jackson – Chief Prosecutor at the International Military Tribunal at Nuremberg, but also Supreme Court justice and a distinguished jurist. In his address entitled “The Rule of Law Among Nations,” he stated that:

“ The trouble has been that the advocates of International Law have had too little of what Mr. Justice Holmes called “fire in the belly,” while the extreme nationalists have had too little else. 16 ”

Both of these internationalist jurists speak to the citizen observer calling on each of us to make an effort and take a stand.

That being said, I must admit a concern with the difficulty of being the good American citizen observer. It is possibly an erroneous impression of what this task of dedoublement analytique entails for the American citizen observer, but it seems that the task contrasts with my understanding of the way international law might be thought about by my foreign colleagues. My experience with internationalist law experts from outside the United States (whether monists or dualists) is that they appear to have a distinctly clearer understanding of the nature of international law on the international plane. They are much more hesitant to describe the international law obligations through the lens of their respective state’s foreign relations law.17 Rather, the lens will be one more of whether the state is complying with its international law obligations as described by consensus visions of what those obligations are. The dominance of the internal perspective appears so significant in the United States that it seems to crowd out this

15 E. Lauterpacht (Eds), International Law being the Collected Papers of Hersch Lauterpacht, Vol. 2, pgs. 35-36 Cambridge University Press (1975) 16 Robert Jackson, The Rule of Law Among Nations, April 13, 1945 available online at http://www.roberthjackson.org/documents/Rule%20of%20Law%20Among%20Nations.pdf (Last visited March 10, 2007) 17 An interesting discussion of Franco-American similarities and differences as regards international law can be found at Emmanuelle Jouannet, French and American Perspectives on International Law: Legal Cultures and International Law in Symposium: French and American Perspectives Towards International Law and International Institutions 58 Maine L. R. 292 (2006). See also, Jose Alvarez, International Law 101: A Post-Mortem IL post February 12, 2007 http://www.asil.org/aboutasil/president.html (Last visited on March 10, 2007). external perspective. The efforts legislatively or in dicta to remove all foreign or international elements from analysis of fundamental international rules (Geneva Conventions in the Military Commission Act as an example18), appears to be an effort to hermetically seal the U.S. mind for fear of the effects of foreign or international thought contamination – seeming to make a virtue of ignorance. The consequence is that one senses a gulf between the U.S. internal and external perspectives that appears greater than that in other countries. I recognize this may only be a conclusion based on my limited experience, but I am left with this disturbing thought.

18 “No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated”, Military Commissions Act of 2006 Section 5 a. See generally, Michael C. Dorf, The Orwellian Military Commissions Act of 2006, available at journal of International Crimnal Justice Advanced Access (2007) http://jicj.oxfordjournals.org/cgi/content/full/mql097v1# (Last visited March 10, 2007). John Cerrone, ASIL Insight, The Military Commissions Act of 2006: Examining the Relationship between the International Law of Armed Conflict and US Law, Novembe 13, 2006 Vol 10 Number 30 available at http://www.asil.org/insights/2006/11/insights061114.html (Last visited on March 10, 2007)

PROPOSAL 30

Lakshman D. Guruswamy, Ph.D. University of Colorado at Boulder

EFFECTIVENESS OF INTERNATIONAL TREATIES

Introduction

Over the last fifty years international law has become a dynamic instrumentalist social force addressing a wide range of socioeconomic, sociopolitical and biophysical challenges through bilateral, regional, and global treaties. International law now includes a formidable corpus of treaties dealing, for example, with labor, human rights, health, intellectual property, taxation, the environment and energy. Many of these treaties establish articulated and implied goals and objectives, and some of them create new institutions. Moreover, the growing challenges presented by energy and environmental problems necessitates new treaty arrangements that change the way in which nations behave. Good new energy treaties that command future compliance must be based on an understanding of the extent to which nations comply with existing treaties, and why they do so.19 This paper builds upon and further develops a seam of international teaching and writing on compliance, effectiveness and impact of energy and environmental treaties.20

In general, even the limited inquiry about compliance with international law dealing with biophysical issues like the environment or energy has been theoretical. It has been confined to two questions: one, has international law been implemented by being incorporated into domestic law through legislative, judicial or executive action; and two, to what extent have countries complied with a treaty by adhering to its provisions and the implementing machinery established by it.21 The effectiveness of a treaty goes beyond mere adherence to legal obligations.22 This article defines effectiveness as the extent to which the goals of a treaty have been achieved. Shallow commitments23 could lead to effective compliance in cases where states would have done so even if the treaty

19 Jose E. Alvarez, Why Nations Behave, 19 MICH. J. INT'L L. 303, 305 (1998). 20 Brown Weiss, E, Jacobson , Harold K, Engaging Countries; Strengthening Compliance with Environmental Accords (1998); Dinah Shelton, Commitment and Compliance (2000); Kal Raustiala, Compliance & Effectiveness in International Regulatory Cooperation, 32 CASE W. RES. J. INT'L L. 387, 393-94 (2000) ; ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY (1995); THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS (1995); George W. Downs et al., supra note 5; Oran R. Young et al., Regime Effectiveness: Taking Stock, in THE EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL REGIMES 249 (Oran R. Young ed., 1999). Harold Hongju Koh, Why Do Nations Obey International Law? 106 YALE L.J. 2599, 2603 (1997)

21 Brown Weiss, E, Jacobson , Harold K, Engaging Countries; Strengthening Compliance with Environmental Accords (1998); Dinah Shelton, Commitment and Compliance (2000). 22 M.A. Fitzmaurice & C. Redgwell, Environmental Non-Compliance Procedures and International Law, 31 NETH, Y.B. INT'L L. 35, (2000).. had never been in force or could do so without much impact on the underlying issue.24 It is important, therefore, to understand a treaty not only in terms of its effectiveness in achieving stated goals, but also in terms of its impact as a satisfactory response to the challenge addressed, and the degree to which it changes state behavior.

International institutions of differing types, created by treaties to serve their goals, as well as international organizations in general,25 have been the subject of research and teaching. By contrast, methods for ensuring compliance, although listed or catalogued, have not been analyzed and examined from the point of view of their comparative utility, effectiveness or impacts. This has happened despite the fact that compliance may depend on those methods. Such methods for ensuring compliance include processes, implementive devices, and different techniques employing distributive and resource transferring, grievance remediation (enforcement), private arrangements, and regulatory frameworks. Of the few methods that have been examined,26 there has only been modest investigation and analysis of the utility of various compliance methods27 and compliance devices used by these international instruments to achieve their goals. It is perfectly possible for an expensive method to achieve a modest goal when it could have been done by another at less cost. Overall, it is important to assess and evaluate the extent to which these varying methods have succeeded in achieving their treaty goals because future instrumentalist treaties will need to avoid failures and embrace the successes of existing treaties.

When moving from methods into the field of effectiveness and impacts it is important to identify the goals of a treaty and to compare such goals with the results produced. It is also necessary to inquire about the depth of these goals and the extent to which they did or did not remedy the problem being addressed. Where the results, garnered from empirical data and evidence, do not match goals or point to the inadequacy of those goals, attention turns to the reasons for such shortfalls. It is possible for shallow commitments and modest goals to reflect what countries are already doing rather than what is needed to address the problem at hand. Such an inquiry must traverse institutions, compliance methods, enforcement, and the socioeconomic, political or cultural context that might explain the gaps between the goals of a treaty and the inability to meet them, or the meagerness of the goals and the ease with which they were met.

While there is a substantial body of literature on “effectiveness,”28 these otherwise theoretically illuminating contributions do not include any authoritative conclusions

23 George W. Downs et al., Is the good news about compliance good news about cooperation? 50 INT'L ORG. 379, 383 (1996). 24 Kal Raustiala, Compliance & Effectiveness in International Regulatory Cooperation, 32 CASE W. RES. J. INT'L L. 387, 393-94 (2000); While Raustiala, who conflates the two concepts, this article draws a distinction between effectiveness and impact 25 Alvarez, Jose, International Organizations as Law Makers (2005) 26 According to Victor, Enforcing International Law Implications for an Effective Global Warming Regime 10 Duke Envtl. L. & Pol'y F. 147 (1999), of t 140 multilateral environmental agreements covering a broad spectrum of issues, scholars have examined closely only a fraction of these agreements and issue-areas. 27 Summers, Robert S, Instrumentalism and American Legal Theory, 193-208 (1982) “Method” as used in this paper corresponds to the ”Implementive Machinery” described by Summers rather than to chapter 6 titled “Legal Method.” based on comprehensive empirical examination of compliance, effectiveness or impacts of energy and environmental agreements.29 This is primarily because of the absence of comprehensive and organized empirical evidence or data. The impressive study by Brown and Jacobson was based on only five treaties.30

It is time to examine the accuracy of the hoary old chestnut that most nations conform to international law most of the time.31 While this impressionistic claim has been repeated in recent times32 and may be correct, the evidence for so believing today simply does not exist in the energy and environmental areas. The importance of empirical evidence backing any such claims cannot be overemphasized.

Ian Brownlie, who considers evidence of effectiveness to be extra-legal, asserts that “the utility and effectiveness of a legal order must be determined ultimately by extra- legal criteria.”33 Benedict Kingsbury points out that we do not have systematic studies to verify the accuracy of Henkin’s venerable assertion that most of the time nations conform to international law. Moreover, he states that the dearth of good empirical studies of the correspondence between state behavior and international rules is a serious obstacle to understanding and evaluating the international legal system.34 This lack of serious empirical research pertains to compliance methods as well as to effectiveness and impacts. While the effectiveness of international regimes is an established field of study, the empirical evidence relied upon in the environmental and energy areas is sparse at best and dubious at worst.35

The existence of an empirically-based research and teaching lacunae relating to methods, effectiveness and impacts has created a serious problem because the rationale behind functional and instrumental legal treaties is to change behavior. The relative absence of writing and teaching on the extent to which they have succeeded in doing so is an omission that should be remedied.

This paper will describe and discuss a two-part project that is seeking to advance sustainable energy solutions to the energy crisis confronting the world. The goals of the exercise are very functional, rather than theoretical. They are to identify all energy treaties in force and to analyze them with a view to reaching conclusions about the kind 28 ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY (1995); THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS (1995); George W. Downs et al., supra note 5; Oran R. Young et al., Regime Effectiveness: Taking Stock, in THE EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL REGIMES 249 (Oran R. Young ed., 1999). Harold Hongju Koh, Why Do Nations Obey International Law? 106 YALE L.J. 2599, 2603 (1997). 29 The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice ix (David G. Victor et al. eds., 1998). 30 See fn 2 above 31 Louis Henkin, How Nations Behave ( 2d ed. 1969) 32 David D. Victor, Enforcing International Law: Implications for an Effective Global Warming Regime, 10 DUKE ENVTL. L. & POL'Y F. 147, 151 (1999). 33 Brownlie, Ian, The Rule of Law in International Affairs, 11 (1999) 34 Benedict Kingsbury, The Concept of Compliance as a Function of Competing Conceptions of International Law50, in International Compliance with Nonbinding Accords (Brown Weiss, ed. 1997) 35 Andresen, H and Hey, Ellen, The Effectiveness and Legitimacy of International Environmental Institutions, 212 at 218, 5, International Environmental Agreements: Politics, Law and Economics (2005) of treaties that most effectively and efficiently promote sustainable energy. The project is doing so by examining all international energy agreements now in force, along with other non-legal instruments including partnerships, declarations, commitments, pledges and other decisions in the international domain that deal with energy. The first phase of this project, which is studying compliance, effectiveness and the impacts of these energy treaties, has identified some 1,800 energy treaties dealing with different aspects of energy and incorporating a variety of goals and methods. The second phase of this project will track the implementation, compliance, effectiveness and impact of these treaties—as well as identify and monitor compliance, effectiveness and impacts vis-à-vis such non-legal instruments as partnerships, declarations, commitments, and pledges. When completed, this project will erase the data deficit regarding energy treaties, situate our understanding of these treaties within a broader instrumentalist framework, and hopefully offer salient insights about the compliance methods, effectiveness, and impacts of treaties.

ISEA/IPECC: An Empirical International Energy Law Research Project

Phase I: International Sustainable Energy Assessment (ISEA)

The insecurity created by the current hydrocarbon economy and the need to develop more secure forms of energy are internationally recognized on a widespread basis. Traditionally, national security has been associated with armed aggression and the ability to thwart military invasions or subversion. More contemporary concepts of security include critical threats to vital national and international support systems such as the economy, energy and the environment. In this context, the increasing reliance on hydrocarbons has created energy, environmental and economic insecurity.

However, the magnitude of the challenges arising in moving to a more sustainable global energy regime cannot be solved by any one nation and must entail international engagement and cooperation. The International Sustainable Energy Assessment (ISEA) is designed to facilitate such cooperation and engagement by enhancing international understanding of optimal ways to utilize and configure international energy agreements, in order to facilitate the development of renewable energy technologies and technologies and practices relevant to energy efficiency and energy conservation.

ISEA has created a unique database containing full text and analysis of approximately 1,800 international energy treaties from all 192 countries in the world. The ISEA database covers a wide array of energy subjects ranging from energy markets and electricity infrastructure to renewable energy, energy efficiency, and hydrogen. By providing a detailed empirical survey and analysis of in-force energy treaties, ISEA constitutes the first critical step towards remedying the empirical research and teaching lacunae related to the compliance, effectiveness and impacts of international energy instruments.

The references to “instruments” are to a genus that includes a variety of multilateral and bilateral agreements, pacts, treaties, protocols and conventions dealing inter alia with science and technology, trade and investment, research and development, technology transfer, and sustainable development.36 As currently envisioned, the principal objective of these instruments will be to facilitate the development of primary sources of energy—i.e., energy in its naturally occurring form—as well as energy conversion, transmission and end-use distribution.37

ISEA builds upon the research frameworks already delineated,38 which seek to foster the development of low greenhouse gas (GHG) global energy systems by facilitating technology research. The ultimate goal of ISEA/IPECC is to advance the negotiation of a comprehensive framework treaty on energy that can galvanize all nations and peoples, including developing countries like China, India and Brazil, to commit to renewable and sustainable energy targets. Such a treaty would be analogous to the Kyoto Protocol that placed numerical quantitative restrictions on carbon emissions.

While a comprehensive treaty remains the ultimate goal, the immediate focus of the ISEA phase is the creation of an empirical database. Providing such data does not allow ISEA to presume to legislate the scope, structure, specific subject matter, final terms or norms of proposed new energy instruments. Instead, ISEA is intended as a starting point from which to begin the arduous interdisciplinary and collaborative work necessary to negotiate a spectrum of instrumental treaties ranging from bilateral or regional science and technology agreements, to trade and investment treaties, to more ambitious regional treaties and overarching global conventions or protocols.

During the ISEA phase of this project, EESI researchers were charged with the task of identifying and analyzing every international energy agreement in the world currently in force—including both bilateral and multilateral treaties. This obviously daunting task required the creation of a uniform analytical structure that would render the process of inputting information into the system straightforward and efficient, ensure that essential information is captured (and conversely, that the lack of such information is also captured), and facilitate and structure the comparative analysis of information within the system. To that end, an analytical structure consisting of 29 fields was devised. All 1,800 agreements currently within the ISEA system were analyzed pursuant to this uniform structure. The analytical structure is bifurcated into two primary divisions: (1) key coordinates—containing such information as parties to the treaty, date entered into force, and subject matter focus; and (2) substantive obligations, such as fundamental obligations, financial commitments, and accountability mechanisms, including information on and analysis of implementation, compliance, effectiveness and impact (with much of the information in these latter four categories to come from the IPECC phase of the project).

36 As discussed below, the definitional scope of “instruments” is expanded in phase two of this project to include non-legal pledges, commitments, partnerships and decisions. 37 The World Energy Council reports primary energy consumption for different countries based on rules for conversion of energy sources into primary energy. This accounting is a suitable method for comparing consumption of different energy sources in different countries.

38 See Franklin M. Orr, Jr., White Paper: Global Climate and Energy Challenge (available at http://gcep.stanford.edu/pdfs/gcep_white_paper.pdf). ISEA ANALYTICAL STRUCTURE / TAXONOMY OF OBLIGATIONS

Key coordinates fields include: (1) treaty name; (2) external reference ID; (3) date signed; (4) date entered into force; (5) signatories; (6) parties to the treaty; (7) legal type —a distinction internal to U.S. law; (8) termination / renewal clause; (9) bilateral or multilateral; (10) subject matter; (11) amendments; (12) extensions; (13) related agreements; (14) parent agreement; (15) subsidiary agreements; (16); international bodies involved; (17) official contacts; and (18) the full text of the treaty.

The taxonomy devised for substantive obligations identifies the types of obligations that call for both implementation and compliance. The fields that constitute this structure are as follows: (1) goals / objectives; (2) fundamental principles; (3) financial obligations; (4) institution-related obligations; (5) project-related obligations; (6) interdependent obligations; (7) dispute resolution mechanisms; (8) implementing agency and methods; (9) accountability / reporting mechanism; (10) implementation and compliance; and (11) effectiveness and impact.

In addition to the two-dimensional view of the field structure denoted above, there are numerous fields within this structure that contain subcategories of analysis, which are dynamically interrelated —thus lending the system a degree of further analytical depth and internal coherence. For instance, with respect to “subject matter focus” the system currently contains treaties covering approximately 45 energy-related subject areas. Eight of these subject areas are deemed primary or top-level categories (see figure 1 below).

Fig. 1 – ISEA Top-Level Subject Categories

Cooperation Agreements Electricity Infrastructure and Technologies Energy Markets Energy Storage Fossil Energy Nuclear Energy PSustainable Energy Transportation

Phase II: International Projects on Energy Commitments & Compliance (IPECC) The ISEA is the first phase of a larger research initiative of the Energy Environment Security Initiative (EESI)—an interdisciplinary research center at the University of Colorado at Boulder (the present author is the Director of this center). The larger research program—the International Project on Energy Commitments and Compliance (IPECC)—involves the construction of a comprehensive knowledge base and analytical compass that will monitor compliance with both legal and non-legal instruments, and other international decisions of multinational corporations. Such independent global monitoring will be conducted through an innovative and unique online compliance monitoring system. The system will be similar to the Wikipedia, the well-known online encyclopedia, in that it will enlist and enable the participation of a distributed group of dedicated individuals. Unlike Wikipedia, however, this will not be an open-access system, but rather will engage the participation of approved entities and individuals throughout the world. The system will offer publicly and freely available data facilitating the development and drafting of new and better international energy instruments and decision-making.

As the sister project of ISEA, IPECC is designed to improve and enhance the efforts of governments, non-governmental actors (such as corporations, non- governmental organizations (NGOs), trade unions, and churches),and key decision- makers throughout the world in two ways: first, by evaluating the extent to which their existing commitments and pledges are actually working; and second, by facilitating new and better clean and affordable energy solutions.

At present there are hundreds of international treaties that seek to advance sustainable energy technologies and policies. In addition to international treaties, recent years have given rise to dozens of partnership agreements involving countries and private sector entities, scores of pledges found in political resolutions, and numerous other nonbinding instruments. These instruments express commitments, of varying degrees and in different ways, supporting the development of sustainable energy technologies. Furthermore, there are numerous other commitments made by private corporations that also seek to advance sustainable energy policies and technologies. While the extent and form of such commitments and pledges has received some attention, an increasingly important, though unanswered question, relates to how effectively they have been implemented, and the degree to which they actually achieve progress by impacting behavior and moving toward sustainable energy goals.

ISEA and IPECC seek to provide the information needed to improve the effectiveness of existing commitments and encourage new commitments where necessary. Collectively, these projects are designed to track and monitor the implementation of sustainable energy commitments undertaken by governments, corporations and other entities, and to provide detailed information on the extent to which these commitments are being complied with. In doing this, ISEA and IPECC will serve as watchdogs over what is and should be happening with respect to these instruments and the commitments they embody. Through the use of the innovative collaborative online monitoring system, ISEA/IPECC will create a global network of expert participants dedicated to monitoring and improving actions taken pursuant to international energy commitments. Project information, analysis and recommendations will also be made freely available through a public website and disseminated through annual reports.

OUTLINE CONTINUED Expand on taxonomy Explain why it is different to earlier data collection exercises Delineate differences between effectiveness and impacts Examine the challenges in devising metrics to measure effectiveness, impacts Discuss how to distinguish legally motivated behavior from other causes of behavior

ABSTRACT

Global reliance on hydrocarbons in the face of both global warming and the peaking of oil must be halted. This is a global as well as a national problem that calls for new international treaties moving the world toward a sustainable energy future. But new accords need to be built on the foundations of existing treaties. New accords should embrace the successes and eschew the failures of existing treaties. Unfortunately, the empirical evidence about existing treaty compliance and particularly effectiveness and impacts is lacking. This article describes how this deficiency is being met in the energy field by the International Sustainable Energy Assessment (ISEA) that has identified 1,800 energy treaties in force and is analyzing them in 35 fields covering their coordinates as well as their obligations, institutions, methods, efficiency and impacts. The data contained in ISEA may provide some broader lessons about treaty effectiveness outside the field of energy.