1. When and where have countries used non-party provisions in international agreements in the past and for why?

2. Has the presence of non-party provisions in an agreement created a “domino effect”, causing many countries to stay outside the agreement? If so, how did that affect the performance of the agreement?

1. Excerpts of non-party provisions

2. Analysis of the Potential Domino Effect

A. There is no evidence to support a general trend that international agreements containing non-party provisions trigger a domino effect that cause States that were present in the instrument’s negotiations to sign but not ratify. In fact, some non-party provisions have indeed encouraged wider participation in the agreement. Here are a few examples:

a. In 2009, the Montreal Protocol became the first treaty in history to achieve universal ratification, with 196 Parties. It has been noted that the trade provisions that preclude Parties from trading in substances with non-Parties has encouraged ratification and helped the Protocol achieve universal participation.
b. The 2000 Cartagena Protocol has been signed and approved/ratified/accessed/succeeded by 166 countries including the initial negotiating countries. Therefore, it does not appear that the presence of the non-party provision in Article 24 create a domino effect inspiring other countries not to sign/sign and ratify. It could perhaps be more accurately seen as inspiring countries to sign because the provision creates indirect obligations for non-parties, making it more attractive for States to sign and ratify.
c. The 1996 United Nations Convention on Straddling Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stocks Agreement) was initially signed by 59 States and entities. This Convention, although merely having 59 signatories, may be an example of states opting to ratify in lieu of remaining non-parties. Fourteen non-party countries have agreed to become parties down the road, and interestingly, many non-parties have begun to incorporate certain provisions into their domestic laws..
d. The 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) was finalized at a meeting of representatives of 80 countries. By the end of 2003, all signatory States had become Parties. Several States that were not signatories became Parties by acceding to the Convention. As of May 2013, 178 States had ratified the Convention. While the Convention does provide a non-party provision, the general trend, albeit slow, between 1973 until the present has been in favor of ratification.

B. Selected instances in international law indicate that countries have been reticent to ratify (after having signed) in the presence of a non-party provisions. Here are a few examples:

a. The 2009 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. This Agreement does perhaps show a potential domino effect of countries which have signed and then chose not to accede/approve/ratify. Of the 25 countries that were present at the initial negotiations and signed the Agreement at that time, only five countries proceeded to this further step. Moreover, the non-ratification of initial signatories may have also played a role in discouraging the remaining 168 of the 193 UN member states to sign or become parties. However, the non-Party provision in the Agreement imposes obligations to encourage non-Parties to become Parties, and to take action to deter activities that would undermine the implementation of the Agreement. It is therefore difficult to find a correlation between the low ratification rate and the non-Party provision, as this provision gives no advantage to non-Party States, and imposes virtually inconsequential obligations on Parties.
b. The 1998 Statute of the International Criminal Court (ICC). It could be argued that the non-party provisions do give rise to 71 countries being non-parties while 139 have signed and 122 countries have ratified. However, it is equally pertinent to note the number and depth of reservations of countries that have 1) signed or 2) signed and ratified, making a direct correlation difficult to prove because countries have listed clear objections, as opposed to being directly influenced by other States not ratifying. Moreover, given the wording of the non-Party provision in the Statute, some States arguably prefer the option of remaining a non-party and cooperating with the ICC in their own terms through an agreement or ad hoc arrangement. This is a potential risk of a non-Party provision: States may choose the option that gives them the most control and room for unilateral action.

3. The Affect of Non-Party Provisions on the Performance of the Agreement

A. In general, states are unwilling to take on additional obligations where it is not in their national interests to do so. Consequently, providing incentives to take such obligations would ensure broader participation in a regime. Of the forms of non-Party provisions outlined in section I above, only two forms are effective in ensuring broader participation: provisions that impose trade restrictions with non-Parties unless they conform to the requirements of the relevant treaty, thereby providing an incentive for non-Parties to comply; and provisions that encourage Parties to enter into bilateral and other agreements with non-Parties to ensure compliance with the relevant treaty or protocol. However, the latter option would still face the problems of ratification in States that do not allow for self-execution of international agreements. Therefore, this section will focus on the first option, and briefly outline how incentives may be designed to ensure broader participation in the regime from non-Party States.

B. It should be noted that the other forms of non-Party provisions, those that encourage non-Party States to become parties, those that require Parties to take measures to deter activities of non-Parties which undermine the effective implementation of the agreement, and provisions which ensure that no more favorable treatment is given to non-Parties, do nothing in and of themselves to ensure broader participation in a regime and do not ensure that non-Party States will comply with the requirements of the relevant treaty. For example:
a. The 1982 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) and the FAO Compliance Agreement, which place obligations to encourage ratification and to ensure that non-Parties do not engage in action that would undermine implementation of the regime, respectively, have had no effect on the legal regime against non-Party fishing in the CCAMLR zone or the regime itself. In these regimes, non-Parties are not bound by the Convention’s provisions and are therefore not bound to fish in compliance with the conservation measures introduced therein, and there is no procedure for compliance beyond ratification of the Convention itself. Encouragement and cooperation do little to strengthen the legal regime. The most effective way to do so is to create incentives for States to comply with certain requirements, and therefore make it more costly for them to stay outside the treaty regime.

C. As indicated in section I above, some multilateral environmental agreements addressing trade in potentially harmful substances allow Parties to trade with non-Parties only if minimum standards of protection are applied. This can be achieved in several ways:
a. by providing that trade may only be carried out with non-Parties that use standards equivalent to those established by a treaty, like the Montreal Protocol;
b. prohibiting trade with non-Parties unless it is undertaken pursuant to a separate agreement establishing minimum environmental standards equivalent to those set by a treaty, like the Basel Convention;
c. by permitting transboundary movements with non-Parties if certain conditions are met, like the CITES agreement.

D. These agreements create incentives for non-Parties to de facto implement the regime without undergoing the national procedures of ratification. It has been noted that these trade restrictions with non-Party states are clearly consistent with Article XX of the GATT, and therefore do not violate any obligations parties may have vis-à-vis the World Trade Organization (WTO).

E. However, it has been postulated that the success of the above provisions are premised entirely on the success of the Convention itself, in that only if enough States ratify the Convention in the first place will non-Parties feel isolated and unable to continue merely trading amongst themselves. Therefore it is important to maintain balance: if it is too enticing to remain outside the regime as non-Parties then States will do so and the regime may never come into fruitful and effective existence.

F. It has been noted with regard to the Minimata Convention on Mercury, that non-Parties through their trade with insiders in accordance with its Article 3 will “see themselves compelled to de facto comply with most of the instrument’s core requirements.” In fact, it has been argued that the Article 3 provision is a solution to the following issue:
“[M]any an international negotiator has by now become irritated by the way multilateral environmental agreements bear the hallmark of US negotiators, only to be left non-ratified by that very same country and nevertheless keeping that textual US DNA forever woven into its body […] [which is] often perceived as being to the detriment of a more forceful regime, or at least of one more likable to the other delegations.”

It is noted that the success of the Minimata regime is in that the trade regime under the Convention, including with non-Parties, is fully articulated and operational whether US ratification occurs or not. Further, Article 3(7) of the Mercury Convention gives non-Parties the right to “revoke its general notification at any time,” which is arguably a safety net constructed by the US in case ratification failed. Therefore, the US foresaw eventual reliance on a non-party provision as a means of participating in a treaty regime without the approval of Congress. Consequently, a non-Party provision is a viable option for future agreements to make certain concessions and incentives to non-Parties without diluting the force of the regime to meet its demands.

G. However, the provisions referred to above are used in agreements that regulate trade in environmentally harmful products and create a regulatory framework to manage and minimize environmental risk (for example, hazardous waste, endangered species, mercury, etc.). These trade bans encourage wider participation in multilateral environmental agreements by limiting the right of non-Parties to trade in a particular product with Parties. However, the trade bans are generally narrowly tailored to target only those products associated with the environmental harm addressed by the agreement. This becomes more difficult to emulate at the general level in the context of a multilateral agreement on climate change, as there are arguably no specific products or goods that could be targeted for a trade ban within the framework of the agreement.

H. Yet, the above provisions have shown that trade bans are an effective incentive to participate in a regime, and remove any advantage a state may have by remaining on the outside. It therefore becomes necessary to explore more drastic options to utilize trade and the important incentive it can play to the benefit of the environmental regime.

I. It is worth considering that capital is not dealt with under the WTO Covered Agreements, and could potentially be a tool to ensure compliance with a regime by creating an incentive for non-Parties to de facto implement its requirements. Could the Parties legally impose a wider trade embargo, on all capital goods, for example, to force compliance with the treaty regime by non-Parties? It has been noted that it would be possible to do so, but the Parties would have to prove: the harm of the action they wish to stop; the violation of international norms; and the need for trade sanctions, which can be demonstrated by showing that negotiations, credit restrictions, and other less drastic means of diplomatic confrontation failed to achieve the desired resolution. This, however, only applies to treaty provisions that can be said to represent international norms.

J. Nonetheless, given that capital is not governed by the WTO Covered Agreements, there are arguably no limits that may be imposed on bans on trade in capital goods with States not party to the agreement. This could potentially be a huge incentive to join the regime, and a huge cost to those that choose to remain outside of it. Although quite drastic, it has been noted that the use of trade restrictions to enforce environmental norms and regimes is underdeveloped in international law, and non-party provisions could perhaps be a means to use trade to the benefit of the climate change regime. Trade can become an important means of encouraging and enforcing global environmental protection regimes, but it must be developed and used in new ways.

K. It should be borne in mind, however, that capital may be regulated to a certain extent by individual Bilateral Investment Treaties (BITs); and the US in particular is party to over 1000 BITs, some of which may regulate capital. Any conflict with a future agreement that imposes capital restrictions could be dealt with by a provision in the agreement that states that the multilateral agreement supersedes any bilateral agreement between Parties and non-Parties, where one party to the agreement is a party to the convention, and prevails in the event of conflict.

L. Another incentive for non-Party compliance to consider is developing the flexibility mechanisms (emissions trading and the Clean Development Mechanism in particular) further, and allowing non-Party participation in the mechanisms, conditioned on the implementation of the obligations contained in the agreement. Many have noted that the Kyoto Protocol “could well be the most significant trading agreement of the century”, and could therefore be developed as a useful tool to incentivize states to participate in the regime. However, it has been overwhelmingly noted that the use and promotion of these mechanisms undermine the efficacy and strength of the regime and can contribute to environmental degradation. These mechanisms are aimed at minimizing the costs rather than maximizing environmental gains. Another disadvantage of the flexibility mechanisms, particularly the emissions trading scheme, is that many states simply buy emission units at the cheapest cost in the market place, and therefore pit developing countries against each other to compete for the lowest price, rather than invest in technologies and practices to actually lower their level of emissions.

M. Nonetheless, emissions trading is an important incentive for states to join the regime, and could be an incentive for non-Parties to de facto implement the agreement in order to participate, if properly developed. However, the new agreement should in turn have serious reduction targets, and the method of calculating each Party’s target should be revised. If not, the baseline as it currently stands, to the benefit of developed states, should be highlighted to developed countries as flexibility for them to offset the higher burden they bear under the agreement. Although developed parties will likely have higher reductions, it should be highlighted that they have a much higher allowance to begin with and therefore they do not lose any competitive advantage.

N. Experience has shown that non-Party provisions that impose trade restrictions on non-Parties unless they de facto implement a regime have been very effective at broadening participation and the effective implementation of environmental regimes. Although there are several forms of non-Party provisions, those that create incentives to join the regime are the most effective in terms of achieving the objective of a treaty. These incentives to de facto implement a regime while avoiding the bureaucratic process of ratification have proven successful in the regimes that regulate more targeted environmental issues, like Mercury, the protection of the ozone layer etc. However, the success is difficult to import to a more general agreement on climate change, which does not regulate a specific product or good. It therefore becomes necessary to think outside of standard practice and explore the unexplored: the possible restrictions on capital to encourage participation in the regime. Although this will be met with violent opposition by the US, this should not deter the discussion and development of trade restrictions as a potential to reinforce and strengthen the environmental regime.