1 International Environmental Law Class on regime design in the field of environmental protection, prepared for Prof. Alberto do Amaral Junior’ class Cristiane Lucena Professora Doutora, IRI/USP

Overview  Koremenos, Lipson and Snidal (2001/2004) The Rational Design of International Institutions  Ronald Mitchell (2006/1994) Problem Structure and Institutional Design in International Environmental Agreements Oil Pollution and Treaty Compliance  Barbara Koremenos (2013) The Continent of International Law 2

New Research Agenda  Jean Galbraith, “Treaty Options”  Virginia Journal of Int’l Law 53(2), 2013  Laurence Helfer, “Exiting Treaties,” 2005  Barbara Koremenos and Allison Nau, “Exit, No Exit”  Duke Journal of Comparative & Int’l Law 21(8), 2010  “Towards an Arms Trade Treaty?”  ILSA Journal of Int’l and Comparative Law 14(2),

Koremenos et al.  International institutions are explicit arrangements, negotiated among international actors, that prescribe, proscribe, and/or authorize behavior  Contrast with Krasner (1983), Goldsmith and Posner (2005) 4

Regime Design Dependent variables: Membership Scope Centralization Control Flexibility Independent variables: Distribution Enforcement Number/asymmetry Uncertainty

Assumptions ① Rational design Institutional design advances state interests ② Shadow of the future States “care” about the future ③ Transaction costs Institutional design and participation is costly ④ Risk aversion States worry about adverse consequences

Conjectures  Membership 1. Restrictive membership increases with the severity of the enforcement problem 2. Restrictive membership increases with uncertainty about preferences  Scope 1. Issue scope increases with greater heterogeneity among larger numbers of actors 2. Issue scope increases with the severity of the distribution problem 7

Conjectures  Centralization 1. Centralization increases with uncertainty about behavior 2. Centralization increases with uncertainty about the state of the world  Flexibility 1. Flexibility increases with uncertainty about the state of the world 2. Flexibility increases with the severity of the distribution problem 8

Flexibility as a Design Element  Forms of agreement flexibility:  Agreement duration  Reservations  Escape clauses  Withdrawal clauses, and the occasional notice period 9

Treaty Exit as Flexibility  Koremenos and Nau (2010)  Role of exit clauses in promoting cooperation  Exit clauses, notice and withdrawing waiting periods H1: Agreements that are characterized by an underlying enforcement problem are more likely to include notice periods H2: If the parties conclude an agreement with a notice period, those agreements that are characterized by an underlying enforcement problem are more likely to feature longer notice periods 10

Treaty Exit as Flexibility  Koremenos and Nau (2010)  Exit clauses, notice and withdrawing waiting periods H3: Agreements that are characterized by an underlying commitment problem are more likely to include withdrawal wait periods H4: If the parties conclude an agreement with a wait period, those agreements that are characterized by an underlying commitment problem are more likely to feature longer wait periods 11

Challenges to the Rational Approach  Jean Galbraith (2013)  The role of choice architecture  Framing and state consent “On average, where states have the implied authority to reserve out of ICJ jurisdiction, 95% continue to accept it; and where state have the explicit right to opt out of ICJ jurisdiction, 80% continue to accept it. But where states can explicitly opt in to ICJ jurisdiction, only a mere 5% of state parties do so, on average.” 12

Ron Mitchell  Effectiveness of international environmental regimes  Regime design  Problem structure  Institutional design is not independent of but is endogenous to problem structure  Variation in problem structure influences how states define success  Consequences for the metrics of institutional effectiveness

Ron Mitchell  Institutional performance depends on both problem structure and institutional design (Underdal) “International institutions may perform well because they are well designed or because they address easy problems.” (p. 75)

Ron Mitchell  Two examples  Montreal Protocol on Substances that Deplete the Ozone Layer  Convention on the International Trade in Endangered Species (CITES)  Variable to measure problem structure: number of actors

Mitchell, Variation in Problem Structure  Variables that influence problem structure: 1 Incentives  Monitoring (collaboration; upstream/downstream)  Sanctions (collaboration)  Rewards (upstream/downstream) 2 Capacities  Financial assistance and capacity building v. sanctions 3 Information  Centrality of science 4 Norms  Normative cycle

Mitchell, Conclusion  Select cases to limit variation in problem structure  Evaluate problem structure variables and their influence on design and behavior  Evaluate effectiveness in terms appropriate to the problem structure

Activity based on Mitchell and Keilbach 2004  Situation structure and regime design  Centrality of the notion of externality Variation in externalities affects regime design  Symmetric versus asymmetric externalities Prisoner’s Dilemma versus upstream/downstream cooperation Prevalence of asymmetric externalities in environmental regulation  Enforcement and distribution problems 18

Activity based on Mitchell and Keilbach 2004  Opportunity to assess rational design conjectures related to scope and centralization  Scope increases with distribution problems  Scope increases with enforcement problems  Centralization increases with enforcement problems 19

Activity based on Mitchell and Keilbach 2004  Five “low politics” cases of transboundary environmental problems (three institutions)  Two independent variables: 1. Distribution problems 2. Enforcement problems  Whaling  Stratospheric ozone loss  Rhine river chloride pollution 20