38 Colum JTransnatl L465

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Citation: 38 Colum. J. Transnat'l L. 465 1999-2000
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Articles
The Transformational Model of International
Regime Design:
Triumph of Hope or Experience?
GEORGE W. DOWNS,* KYLE W. DANISH**
& PETER N. BARsOOM***
International legal scholars have grown increasingly

interested in the development and design of
internationaltreaty regimes. Recently, one particular
design strategy, often referred to as the
Transformational Approach, has acquired great
currency, especially in connection with environmental
regimes where it has played a major role in the
construction of the climate change regime. Regimes
designed in accordance with the Transformational
Approach are believed to generate increasingly
greater commitment and deeper cooperationthrough a
process of iterative, state-to-state negotiation that
promotes identity convergence. To achieve these
effects, advocates of the TransformationalApproach
prescribe that regimes be highly inclusive, minimize
the stringency of obligations, de-emphasize
enforcement in favor of a "managerial' approach,and
utilize decision-makingrules requiringnear unanimity.
* Professor of Politics, New York University; Ph.D. University of Michigan (1976);
B.A. Shimer College (1967).
** Associate, Van Ness Feldman, P.C., Washington, D.C.; J.D. Temple University
School of Law (1997); M.P.A. Princeton University Woodrow Wilson School of Public and
International Affairs (1996); B.A. Haverford College (1989).
*** Manager, Mitchell Madison Group, New York, NY; Ph.D. Candidate, Princeton
University Department of Politics; B.A., Colgate University (1992). The authors extend their
gratitude to Jeffrey Dunoff and Eyal Benvenisti for their comments on prior drafts. All errors
are, of course, the authors' own. This article is not intended to represent the views of Van
Ness Feldman, P.C., Mitchell Madison Group, or their clients.
COLUMBIA JOURNAL OF TRANSNATIONAL LA W
[38:465
In this essay the authors argue that, while the

Transformational Approach has some normative
attractiveness, its theoretical underpinnings are less
than compelling. Among other problems, its design
characteristics can obstruct a variety of other
processes
that
both
constructivists
and
nonconstructivists alike believe can promote
preference change and cooperation. Moreover, an
empirical survey of international environmental
treaties suggests that regimes designed according to
Transformational tenets have not experienced a
significantamount of cooperative evolution since their
initiation and, of greater concern, have actually
generated less cooperative depth than nonTransformationalagreements.
I.
II.
Ill.
IV.
V.
VI.
VII.
INTRODUCTION ......................................................................
THE TRANSFORMATIONAL APPROACH ..................................
467
469
A.
Entry into Membership............................................. 472
B.
Diffusion of Information........................................... 474
C.
Iterationsof Collective Deliberation........................ 475
THE DESIGN OF THE TRANSFORMATIONAL REGIME .............. 477
A.
Number of Members: Maximize Inclusion............... 477
B.
InitialObligations:EstablishOnly Soft and
UnthreateningCommitments.................................... 478
C.
Voting Rule: Require a Consensus........................... 480
D.
Compliance Control:Manage Rather Than Enforce
Compliance...............................................................
482
THE FRAMEWORK CONVENTION ON CLIMATE CHANGE:
THE ARCHETYPE OF THE TRANSFORMATIONAL
DESIGN STRATEGY ................................................................

SOURCES OF SKEPTICISM .......................................................
488
493
EVIDENCE FROM A SURVEY OF ENVIRONMENTAL TREATIES .503
CONCLUSION .........................................................................
507
Appendix A: International Environmental Agreements Analyzed .510
Appendix B: Depth Coding Rules ...................................................
514
2000]
I.
TRANSFORMATIONAL MODEL OFREGIME DESIGN
INTRODUCTION
The Kyoto Protocol to the United Nations Framework

Convention on Climate Change' is the embodiment of what has
rapidly become the dominant approach to the design of multilateral
regulatory institutions dealing with the environment. This approach
has come to be known as Transformational. It is believed to generate
increasingly greater commitment and deeper cooperation through a
process of iterative, state-to-state negotiation that promotes identity
To maximize the benefits of this process,
convergence.
Transformationalism prescribes that regimes be highly inclusive,
minimize the stringency of obligations, deemphasize enforcement,
and utilize decision-making rules requiring near unanimity.
Paradoxically, these characteristics-historically associated in the
minds of many with institutional ineffectiveness-turn out to be the
very ingredients that ensure long-term regime effectiveness.
According to Transformationalists, it is the weak convention that is
most likely to beget the strong regime.
In this essay, we will examine the Transformational argument
more closely than has previously been done in order to assess the
extent to which its current status as a universally applicable
institutional design strategy is justified. Our motivation is pragmatic:
because design choices made early in the construction of a
multilateral regime are difficult to reverse and can have far-reaching
implications once memorialized into law, any multilateral design
strategy should meet a high standard of theoretical justification and
empirical proof before it is aggressively prescribed.
1. Protocol to the United Nations Framework Convention on Climate Change, Dec.
10, 1997, 37 I.L.M. 32 [hereinafter Kyoto Protocol].
2. Examples of work that is broadly representative of the Transformationalist
perspective include ABRAM CHAYES & ANTONIA HANDLER CHAYEs, THE NEw SOVEREIGNTY:
COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS (1995); Jutta Bnn~e &
Stephen J. Toope, Environmental Security and FreshwaterResources: Ecosystem Regime
Building, 91 AM. J. INT'L L. 26 (1997); Marc A. Levy et al., The Study of International
Regimes, I EUR. J. INT'L REL. 267, 283-85 (1995); Patrick Sz6l1, The Development of
MultilateralMechanisms for Monitoring Compliance, in SUSTAINABLE DEVELOPMENT AND
INTERNATIONAL LAW (Winfried Lang ed., 1995); Martti Koskenniemi, Breach of Treaty or
Noncompliance? Reflections on the Enforcement of the Montreal Protocol, 3 Y.B. INT'L
ENvrL. L. 123 (1992). What we call Transformationalism embodies a number of the
precepts of what Harold Hongju Koh refers to as transnational legal process theories,
especially its emphasis on the spillover effects of what he refers to as "horizontal jawboning"
or state to state negotiation. Harold Hongju Koh, The 1998 Frankel Lecture: Bringing
InternationalLaw Home, 35 HouS. L. REv. 623 (1998).
COLUMBIA JOURNAL OFTRANSNATIONAL LAW
[38:465
We will argue that the elevation of Transformationalism from

a provocative theory of why state preferences converge to a general
design strategy is precipitous. While internally consistent, its
horizontally oriented design prescriptions encompass only one of
many constructivist processes, and not necessarily the most important
one at the level of the nation-state. Vertical processes of identity
integration that are not confined to the boundaries of any given
institution promise to be equally, if not more, important, but they are
not necessarily promoted by the same design prescriptions. Even
more problematic, the Transformational design characteristics can
obstruct a variety of other, nonconstructivist processes that both
constructivists and nonconstructivists believe can promote preference
change and cooperation.
We show that there are cases where multilateral institutions
designed according to Transformational principles have not evolved
as advocates had predicted, and that there are other cases where
institutions have departed from these principles with considerable
success. Even the Kyoto Protocol experience, which appears at first
glance to represent a triumph of the Transformational approach, is
shown to provide at best only ambiguous evidence of the strategy's
effectiveness. An empirical analysis of a far wider range of
international environmental regimes than has previously been
examined reveals little support for the elevation of the
Transformational design approach to its current status. At least to
date, Transformational design principles have inspired on average less
cooperative evolution in the agreements that embody them than have
non-Transformational principles.
Such findings do not detract from the normative attractiveness
of the Transformational design prescriptions, or imply that there are
not situations where they are highly effective in inspiring state
preference change and deeper cooperation.
They do suggest,
however, that just as there is no single reason why nations obey
international law, there is also no single explanation for why state
preferences change and, at least at the present time, no reliable
technology for telling us what design strategy is best for a given set of
circumstances. Any single design strategy may speed the evolution of
cooperation in some cases, but it seems certain to slow it in others.
2000]
II.
469
THE TRANSFORMATIONAL APPROACH
One salutory aspect of the shift from studying individual

treaties to studying international regimes3 has been the growing
appreciation that in many issue-areas, it is difficult to fully analyze
one treaty in isolation from the other treaties and institutions to which
it is "linked," in the sense that it affects or is affected by them. It
would make little sense, for example, to evaluate the law of
international trade by studying only the General Agreement on Trade
in Services (GATS) 4 and not the other Uruguay Round agreements
and the decisions of the Dispute Settlement Mechanism as well.
Similarly, an analysis of the ozone regime would be incomplete were
it to focus only on the Vienna Convention for the Protection of the
Ozone Layer' without also examining the Montreal Protocol on
Substances that Deplete the Ozone Layer6 and the annexes added to
the Protocol over time.7 Such an analysis should also probably
include a discussion of the role and policies of the Montreal Protocol
Multilateral Fund, which provides financial assistance to developing
country Parties.8 The study of international regimes thus attempts to
capture as far as possible both the interaction and the summary impact
of multiple rules and institutions in different policy areas.
3. In addition to the scholars cited throughout this article, see, e.g., Anne-Marie
Slaughter et al., IternationalLaw and InternationalRelations Theory: A New Generationof
Interdisciplinary Scholarship, 92 AM. J. INT'L L. 367 (1998) (providing an extensive
bibliography of interdisciplinary scholarship involving international relations and
international law, of which a great proportion consists of works examining regime issues);
Anne-Marie Slaughter Burley, InternationalLaw andInternationalRelations Theory: A Dual
Agenda, 87 AM. J. INT'L L. 205 (1993); Edwin M. Smith, Understanding Dynamic
Obligations: Arms Control Agreements, 64 S. CAL. L. REv. 1549 (1991); Kenneth W.
Abbott, Modern InternationalRelations Theory: A Prospectusfor InternationalLaisyers, 14
YALE J. INT'LL. 335 (1989).
4. See General Agreement on Trade in Services, Apr. 15, 1994, 33 I.L.M. 46.
5. See Vienna Convention for the Protection of the Ozone Layer, openedfor signature
Mar. 22, 1985, T.I.A.S. No. 11097, 1513 U.N.T.S. 293.
6. See Montreal Protocol on Substances that Deplete the Ozone Layer, opened for
signature Sept. 16, 1987, 1522 U.N.T.S. 3, 26 I.L.M. 1550 [hereinafter Montreal Protocol].
7. See, e.g., Adjustments To the Montreal Protocol on Substances That Deplete the
Ozone Layer, June 29, 1990, S. Treaty Doe. No. 102-4 (1991), 30 I.L.M. 537; Montreal
Protocol On Substances That Deplete The Ozone Layer: Adoption of Adjustments and
Amendment by the Fourth Meeting of the Parties at Copenhagen, Nov. 23-25, 1992, S.
Treaty Doc. No. 103-9 (1993), 32 I.L.M. 875 [hereinafter Fourth Meeting of the Montreal
Protocol Parties].
8. See Charles E. Di Leva, InternationalEnvironmental Law and Development, 10
GEO. INT'L ENVTL. L. REv. 501, 510 (1998) (describing the Montreal Protocol Multilateral
Fund, among other financial mechanisms associated with international environmental treaty
regimes).
COLUMBIA JOURNAL OF TRANSNATIONAL LAW
[38:465
Examining regimes rather than individual accords not only

provides a broader view of the governing law at any one time in a
given issue-area, it also calls attention to the process of incremental
regime development. Thus, for example, much is to be gained by
examining how the Treaty of Rome became the European Community
and how the European Community metamorphosed into the European
Union. International environmental regimes, in particular, have
tended to progress through what has been called a "ConventionProtocol Approach," through which participating states first negotiate
a framework convention consisting of decision-making procedures,
information-sharing provisions, and an initial set of substantive
obligations and only later promulgate more stringent substantive
obligations through protocols and/or annexes. 9
This dynamic of incremental regime development has sparked
interest in examining regime design, the process by which effective
regimes are built. Scholars and practitioners in the fields of
international law and international relations are increasingly
analyzing which design characteristics are likely to cultivate
deepening cooperation among the participants to the regime over
time.10
For international law scholars, examining regime development
means shifting attention from a consideration of the more traditional
questions about the substantive law in a particular area-e.g., how the
latest opinions of the International Court of Justice on nuclear
weapons affect the international law on the use of force-to the study
of the wider implications of different institutional arrangements for
the evolution of cooperation-e.g., how will this membership rule, or
this voting rule, or this compliance mechanism affect the long-term
development of this regime. International relations scholars, for their
part, have for some time been studying why and how states cooperate
with one another, but only in the past decade have they become
interested in whether different kinds of (legal) institutional
arrangements promote different outcomes in the long term. Thus,
they now are interested in the same sorts of questions as the
international lawyers who are studying regime design.
9. See Edith Brown Weiss, InternationalEnvironmental Law: Contemporary Issues
and the Emergence of a New World Order,81 GEO. L.J. 675, 687-688 (1993).
10. See, e.g., Anne-Marie Slaughter et al., supra note 3, at 385-86 (identifying "regime
design" as an element of a collaborative research agenda for international law and
international relations scholars); see also Robert 0. Keohane, InternationalInstitutions: Can
Interdependence Work?, FOREIGN POL'Y 82, 89 (Spring 1998) (asserting that the
"fundamental question scholars [studying international institutions] wish to answer concerns
effectiveness: What structures, processes, and practices make international institutions more
or less capable of affecting policies-and outcomes-in desired ways?").
2000]
471
One of the major intellectual products of this new orientation

has been the creation and wide diffusion of Transformational design
strategy. Its goal is to create an arena for interactive discourse among
member states that triggers a "self-reinforcing dynamic"" that will, in
turn, lead states to pursue deepening cooperation and increasingly
ambitious commitments. Advocates frequently stress the importance
of four regime design principles that they believe create the type of
context that best facilitates this process of transformation:
The number of member states participating in the
(1)
regime should be universal or nearly so;
(2)
The nature of initial commitments and obligations
should be as unthreatening as possible, consisting of
few, if any, specific performance targets or timetables;
in many cases, soft law or non-binding norms are
preferable to hard law;
(3)
Rules for decision-making should require near
unanimity; and
Processes employed to maintain compliance should
(4)
dispute avoidance and negotiated
emphasize
compliance management to the exclusion of more
coercive enforcement mechanisms.
While there is some ambiguity and variation in descriptions of
the process by which Transformational regimes foster progressively
stronger commitments among their members to increasingly
ambitious regulatory goals, there are some broad themes that run
through much of the literature. Participation in Transformational
regimes is believed to induce a mutually reinforcing series of
normative and cognitive shifts among member states because states in
effect are socialized by the regime in such a way that their preferences
and even their underlying values change." Without any change in the
underlying distribution of power or wealth, and without coercion,
more environmentally regressive member states are led to discover
that their interests lie in addressing a given environmental problem.
Thus, Transformationalists emphasize the "active role" of
their regimes in "modifying preferences, generating new options,
11. Peter M. Haas & Jan Sundgren, Evolving InternationalLaw: ChangingPracticesof
NationalSovereignty, in GLOBAL AccoRD 401, 416 (Nazli Choucri ed., 1993).
12. See Ronald Mitchell, Implementation of the FCCC-Compliance,Effectiveness and
InstitutionalDesign, in INTERNATIONAL RELATIONS AND GLOBAL CLIMATE CHANGE, Potsdam
Institute for Climate Impact Research, Report No. 21, 70-72 (Detlef Sprinz & Urs
Luterbacher eds., 1996); see also Thomas Gehring, International Environmental Regimes:
Dynamic SectoralLegal Systems, 1 Y.B. INT'L ENvTL. L. 35, 37 (1990).
[38:465
persuading the parties to move toward increasing compliance with

regime norms, and guiding the evolution of the normative structure in
the direction of the overall objectives of the regime."13 Case
descriptions of how this socialization occurs within Transformational
regimes typically cite the importance of three mechanisms of
influence: (1) the act of accepting membership to the regime; (2)
diffusion of information within the regime; and (3) repeated iterations
of collective deliberation by regime members.
A.
Entry into Membership
The first important element of the Transformational process

occurs in connection with a state's entry into a regime. Some may
have difficulties seeing how the act of collectively agreeing to work
toward the distant realization of a set of abstract principles and goals
will by itself make ratifying states more likely than non-ratifying
states to alter their behavior. However, Transformationalists contend
that the mere act of joining an institution or regime "shap[es] the
identity (and therefore the interests) of actors and, in the process,
influenc[es] the way actors behave as occupants of the roles to which
they are assigned."14 Even at a low level of initial commitment,
advocates argue, member states are "engaged,"15 addressing the
problem in a way that non-member states would not. General and
'soft' as this initial commitment may be, it is sufficient to start a
member down the Transformational path. According to Levy:
Effective institutions begin with commitments
"merely" to norms and principles, and either lack
regulatory rules or possess only very weak ones. This
is exactly as it should be. If states waited to form
institutions until there was enough concern and
scientific understanding to adopt strong rules, they
would wait much too long. Institutions are needed
13. CHAYES & CHAYES, supra note 2, at 229.

14. Levy et al., supra note 2; see also Andreas Hasenclever et al., Interests, Power,
Knowledge: The Study of InternationalRegimes, 40 MERSHON INT'L STUD. REv. 177, 211
(1996) (asserting that "regimes operate as imperatives, requiring states to behave in
accordance with their norms and rules, but they also help create a common social world for
interpreting the meaning of behavior ..
.
15. See Weiss, supra note 9, at 688.
2000]
473
early on to help create the conditions that make strong

rules possible.16
Agreeing to join a regime gives the issue higher priority on the
member state's policy agenda and confers authority upon the
domestic officials responsible for dealing with it. It encourages
domestic constituencies to view the issue not simply as a priority for a
limited number of actors in the international
community but also as a
"common concern of humankind."17 Bodansky observes that the
establishment of the multilateral regime "creates common
expectations which, as the process builds momentum, may draw
along even reluctant states."18 For example, at the time the
Convention on Long Range Transboundary Air Pollution (LRTAP) 9
was signed, only a few Nordic countries were concerned about acid
rain. Most other member states had signed the Convention primarily
as a vehicle for supporting East-West detente by promoting
cooperation in a peripheral policy area. Yet, Transformationalists
assert, the internationalization of the problem helped to amplify
concern, spurring the parties to commit to increasingly ambitious
obligations to reduce transboundary air pollution.2"
One of the more notable agenda-setting effects of joining the
Transformational regime includes the member state's creation of a
new domestic bureaucracy to manage implementation of regime
obligations. Transformationalists insist that these bureaucracies can
contribute to a state's normative development because the
bureaucracies tend to perceive the task of addressing the
environmental problem as part of their core mission. "More often
than not," observe Levy, Young, and Zilm, "agencies charged with
the implementation of regimes come to treat the fulfillment of this
goal as part of their organizational mission to be pursued without
constant questioning of the social consequences flowing from the
rules in question and defended in dealings with other agencies
pursuing their own missions."21 Indeed, narrow social consequences
16. Marc A. Levy et al., Improving the Effectiveness of InternationalEnvironmental
Institutions,in INSTrrUTIONS FOR THE EARTH 397, 413 (Peter M. Haas et al. eds., 1993).
17. See, e.g., United Nations Framework Convention on Climate Change, May 9, 1992,
Preamble, S. Treaty Doe. No. 102-38 (1992), 31 I.L.M. 851. [hereinafter UNFCCC];
Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 822 (1992).
18. Daniel Bodansky, The Emerging Climate Change Regime, 20 ANN. REV.ENERGY &
ENV'T 425, 432 (1995).
19. See Convention on Long-Range Transboundary Air Pollution, adopted Nov. 13,
1979, T.I.A.S. No. 10541, 1302 U.N.T.S. 217.
20. See Levy et al., supra note 16, at 400.
21. Levy et al., supra note 2, at 305.
8
[38:465
are downplayed: "It is the authoritativeness of regime rules and

activities that triggers the behavioral response rather than some
calculation of the anticipated benefits and costs associated with
different options available to decision-makers." 2
B.
Diffusion of Information
The production and diffusion of information is the second

vital element of the Transformational process. Transformationalists
emphasize that the high degree of scientific uncertainty surrounding
most environmental problems means that states often lack wellgrounded calculations of the costs and benefits of action or inaction.
New information that they have reason to trust can give them both the
reason to become engaged in solving an environmental problem and
the technical means to do so. Thus, the diffusion of knowledge within
the boundaries of a regime allows the more progressive states to
"Without institutional
animate the more regressive ones.
intervention," assert Haas, Keohane, and Levy, "knowledge that is
relevant to policy making remains trapped within those nations active
in scientific research. Knowledge that is so generated commonly
diffuses quite slowly, especially to countries of low concern, where it
is often most needed."23 At least as described in the Transformational
literature, the process set in motion by the Transformational regime is
both reliable and relentlessly progressive. Thus, Brunn~e and Toope
assert in the context of environmental agreements: "To the extent that
institutional structures take on the collection and evaluation of data,
the emphasis will shift from state interests to common ecological
interests, from short-term to longer-term assessments."'2 4
Transformational regimes also facilitate and further a learning
process by empowering what are known in the international relations
literature as "epistemic communities." These are "networks of
professionals with recognized expertise and competence in a
particular domain and an authoritative claim to policy-relevant
knowledge within that domain."25 Transformational regimes magnify
22. Id.
23. Levy et al., supra note 16, at 412.
24. Brunne & Toope, supra note 2, at 43.
25. Peter M. Haas, Introduction: Epistemic Communities and International Policy
Coordination, 46 INT'L ORG. 1, 3 (1992). Brunn6e and Toope suggest that international
lawyers themselves form epistemic communities "because they promote values through
specific principles, such as... ecosystem principles... which can guide the evolution of
regimes and ultimately gain normative significance." Brunn6e & Toope, supra note 2, at 34.
2000]
the political power of epistemic communities by exposing diplomats

to experts whose views are more likely to be taken seriously than
those of politicians. In addition, the multilateral institution also
empowers epistemic communities more directly by giving their
members posts in regime bodies such as scientific assessment panels.
Thus, Peter Haas maintains, member states of the Mediterranean
Action Plan broadened the scope of the regime to encompass more
sources and forms of pollution after transnational networks of
scientists and other experts gained power within the regime.26 The
Intergovernmental Panel on Climate Change (IPCC), a scientific body
established in 1988 by the United Nations Environmental Programme
and the World Meteorological Organization, is also credited with
having a powerful effect on both policymakers and the general public
and providing the basis for negotiations within the climate change
regime. 27
C.
Iterations of Collective Deliberation
Transformationalists emphasize in particular the third

component of the Transformational process: the power of iterated
dialogues that occur in negotiating rounds, conferences of the parties,
and other regime-sponsored fora.
This ongoing collective
deliberation inspires member states to begin to view the world and
their role in a new way. Through the repeated iterations of
negotiations and meetings, norms gradually take more determinate
form and become standards against which state behavior is judged
and justified. In addition to promoting the convergence of interests
and the evolution of consensus, this process also serves to give more
content to a multilateral regime's goals and to increase the likelihood
that the constituent states will view the collective outcome as
legitimate.29
26. See Peter M. Haas, Do Regimes Matter? Epistemic Communities and
MediterraneanPollutionControl,43 INT'L ORG. 377, 397-98 (1989).
27. See ORAN YOUNG, INTERNATIONAL GOVERNANCE: PROTECTING THE ENVIRONMENT
INA STATELESS SOCIETY 39-42 (1994); see also Bodansky, supra note 18, at 448.
28. See CHAYES & CHAYES, supra note 2, at 123 (asserting that "[t]he discursive
elaboration and application of treaty norms is at the heart of the compliance process.");
see also FRIEDRICH KRATOCHWIL, RULES, NORMS, AND DECISIONS (1989).
29. See CHAYES & CHAYES, supra note 2, at 119 (observing that "international relations
are conducted in large part through diplomatic conversation-explanation and justification,
persuasion and dissuasion, approval and condemnation" and, in such discourses, "[i]t is
almost always a good argument for an action that it conforms to the applicable legal norms,
and against, that it departs from them.").
[38:465
The details of the process by which collective deliberation

leads to normative change are usually left unspecified. But one
important aspect of the process is that it often puts regressive,
potentially law-violating states on the spot, forcing them both to
present justifications for their positions and to confront the
achievements of more ambitious states.3 In describing the experience
of LRTAP, Levy draws the analogy between the Transformational
regime and a social organization, contending that meetings in which
new emission reduction targets were discussed embarrassed laggards
in the way that a club's fundraising "tote-board" embarrasses
members who have not yet "given at the office."'" Targets adopted by
the most committed members became a "normative register,"
declaring what was "legitimate" and setting standards for what
"responsible" members should do, thereby imposing a kind of peer
pressure on the more recalcitrant member states.32
Collective deliberation also facilitates the operation of
epistemic communities by fostering an atmosphere of consensusbuilding, free of any expectation that the outcome of the process must
be the establishment of strong binding obligations. In such a setting,
epistemic communities can "depoliticize the identification of
crucial contributions to the
problems and priorities and thus make
33
substantive evolution of the regime.
In sum, for the Transformationalist, the processes of entry into
membership, production and diffusion of information, and collective
deliberation can operate together to make the multilateral institution a
kind of hothouse in which interests change and agendas are altered in
the direction of a greater commitment to address environmental
problems.
30. See Edward Parson, Protecting the Ozone Layer, in INSTITUTIONS FOR THE EARTH,
supra note 16, at 64.
31. Marc A. Levy, European Acid Rain: The Power of Tote-Board Diplomacy, in
INSTITUTIONS FOR THE EARTH, supra note 16, at 75.
32.
See id. at 77; see also THOMAS M. FRANCK, FAMRNESS IN INTERNATIONAL LAW AND
INSTITUTIONS 7 (1995) (arguing that international obligations are rooted in the notion of
community).
33. Brunn~e & Toope, supra note 2, at 43; see also Eyal Benvenisti, Collective Action
in the Utilization of Shared Freshwater: The Challenges of International Water Resources
Law, 90 AM. J. INT'L. L. 384 (1996) (observing that the "interaction between scientists and
low-level officals in information gathering and exchange tends to depoliticize cooperation
and to break down political barriers to it.").
2000]
II.

THE DESIGN OF THE TRANSFORMATIONAL REGIME
Curiously, there is far more consensus regarding the basic

design properties that will permit a multilateral institution to achieve
its transformational potential than about how the Transformational
process operates. The literature generally emphasizes four key design
specifications as prerequisites for an effective Transformational
regime, and advocates imply, at the least, that regimes designed
according to other specifications are unlikely to be effective.
A.
Number ofMembers: Maximize Inclusion
For advocates of the Transformational

Approach,
environmental issues requiring cooperation among numerous states
can be managed only if all of the stake-holding states-even those
with apparently no interest in addressing the problem-are
incorporated into the regime at the outset. History reveals the
effectiveness of these highly inclusive regimes, they argue, and
moreover the nature of the international legal system essentially
forecloses alternative approaches.
Every state holding a potential stake in the solution to the
environmental problem must be incorporated.
Lang's
"commandment" for policy-makers is that they "should seek the
broadest possible acceptance by states."34
"In relation to
participation," Kimball similarly asserts, "the preferred option for
treaty management regimes is that they include all nations
contributing to the problem."3 Implicit in this prescription, of course,
is the assumption that a regime designed to consist initially of a small
number of committed members and then to draw in other states over
time cannot possibly be effective.
The rationales for this prescription are varied. In part, it
reflects nothing more than a high level of confidence in the
effectiveness of Transformational regimes. Given that belief, the
sooner a state can be made a member the better. Transformationalists
also stress the fact that highly participatory regimes "transform"
better-that the socialization process at the heart of the model works
better as the membership of the regime more closely approximates the
34. Winfried Lang, Diplomacy and International Environmental Law-Making: Some
Observations,3 Y.B. INT'L ENVTL. L. 108, 116 (1992).
35. Lee A. Kimball, Towards Global Environmental Management: The Institutional
Setting, 3 Y.B. INT'L ENVTL. L. 18, 30 (1992).
[38:465
fall membership of the international community. As with any social

organization, a member is more likely to internalize the mission of an
institution if she sees all her friends and neighbors are a part of it. As
the member comes to perceive the club's mission as a common
concern of the community, she comes to see fulfillment of her
membership obligations as intimately linked to her standing in the
wider community.36 Transformationalists emphasize that obligations
emanating from regimes with global membership have greater
legitimacy and authoritativeness, qualities they believe are the sine
37
qua non for establishing legal norms with which states will comply.
Inclusive regimes permit leaders to apply "community
pressure" on their members to cajole laggard states into increasing
their commitment to addressing a problem.38 In this way, they operate
to "fulfill a fiduciary role on behalf of the environment. 39 Bimie and
Boyle maintain that smaller regimes, by contrast, are likely to take the
form of users' clubs that further only narrow and usually
"Institutions whose
environmentally unfriendly interests.4"
membership is too narrowly drawn," they argue, "are more likely to
legitimize pollution or the over-exploitation of resources than to
tackle them."41
B.
InitialObligations:Establish Only Soft and Unthreatening

Commitments
by
advanced
prescription
design
second
The
Transformationalists is that negotiators initially should establish an
accord-a non-binding declaration or a framework conventioncontaining only the softest, most unthreatening commitments.
Indeed, soft law is usually preferred and premature legalism is
eschewed. Lang, describing the model framework convention, asserts
36. See, e.g., CHAYES & CHAYES, supra note 2, at 27. Chayes & Chayes have proposed
the emerging existence of a "New Sovereignty," a condition in which states realize their
sovereignty-their very identity-only through full participation in the expanding web of
international regimes. They argue that "[s]overeignty, in the end, is status-the vindication
of the state's existence as a member of the international system." Id.
37. See Brunnie & Toope, supra note 2, at 32, quoting THoMAs FRANCK, FAIRNEss IN
INTERNATIONAL LAW AND INSTITUTIONS, supra note 32; THOMAS FRANCK, THE POWER OF
LEGITIMACY AMONG NATIONS (1990).
38. See PATRICIA W. BIRNIE & ALAN E. BOYLE, INTERNATIONAL LAW AND THE
ENVIRONMENT 175 (1992).
39. Id.
40. See id.
41. Id. at 178.
2000]
that "as a rule, it does not contain specific obligations, such as

pollution emission reductions by a certain date, nor does it contain
detailed prescription of certain activities."'42 International lawyers
must conquer their "instinct to generate seemingly binding norms,
rather than regimes that may be facilitative initially, but can help to
promote real normativity in the long term."43
The early establishment of weak rules promotes the
First and perhaps
Transformational process in several ways.
foremost, soft commitments induce maximum participation by
reducing the price of admission and therefore enticing even the least
committed members to join the regime. Only as members can they be
exposed to its mechanisms of influence. "Willingness to soften
obligations" is advisable, according to Lang, because it "opens the
Transformationalists
way for wider acceptance of a treaty."'
acknowledge that accommodating all parties, including those that
have little interest in addressing the problem, will produce an initial
declaration or convention reflecting only the weakest degree of
commitment, the lowest common denominator. However, for Levy,
LRTAP is proof of the ultimate power of this strategy of
accommodation:
LRTAP was established as a weak institution, initially
oriented only toward scientific research and ambiguous
principles. Out of weakness came strength, however.
Weak rules permitted strong consensus-building
powers, whereas strong rules would have generated
hostility on the part of governments ... . [S]keptical
governments felt unthreatened by LRTAP even as its
scientific working groups resolved the uncertainties in
favor of taking action. Today these governments
embrace what they once fought and accept the need for
action.4'
Handl makes similar claims for the strategic value of starting
with weak commitments. He argues that "abundant and well-known
42. Lang, supranote 34, at 119 (emphasis added).
43. Brunn~e & Toope, supra note 2, at 41 (noting that other treaties in which lawyers
sought binding substantive rules prematurely "tended to polarize positions and result in
normative stagnation.").
44. Lang, supra note 34, at 116; see also BiRNIE & BOYLE, supra note 38, at 27
(observing that soft law's "great advantage over hard law is that, as occasion demands, it
can.., enable states to take on obligations that otherwise they would not, because they are
expressed in vaguer terms .... ").
45. Levy, supranote 31, at 76.
[38:465
evidence" exists that soft law declarations such as the Stockholm

Declaration and the World Charter for Nature are effective "catalysts"
in the development of ambitious binding commitments. 46 Like Levy,
Handl asserts that weak rules have the strategic value of luring
laggards into the regime. "In this sense," he concludes, "soft law is
the thin end of the normative wedge of international47 environmental
law, perhaps the 'Trojan Horse of environmentalists.'
Not only softness, the Transformationalists contend, but also

generality and vagueness are virtues of these initial commitments.
Though vague obligations permit wide variances in implementation
by member states, they also promote the ongoing dialogue that
transforms and socializes the member states toward more progressive
normative development. Imprecise rules are thus "constructively
ambiguous; 48 they "prevail on the parties to negotiate. '49 Discussing
the formation of shared freshwater regimes, Benvenisti observes that
an indefinite rule "leaves room for negotiations during which each
side could develop its own interpretation of the standard.""0 Precise
rules, by contrast, polarize the parties and discourage the consensus
building at the heart of the Transformational process. Here again,
generality promotes maximum participation, whereas more definite
rules "prevent many riparians--clear winners or clear losers-from
entering the negotiation room."51
Voting Rule: Require a Consensus
C.
The Transformationalists emphasize the principle of near

unanimity in decision-making within a regime, with majority voting
strongly discouraged. The emphasis on consensus decision-making
has two justifications: it is a fundamental norm of international law;
46. Gfinther Handl, Environmental Security and Global Change: The Challenge to
InternationalLaw, 1 Y.B. INT'L ENVTL. L. 3, 8 (1990). Handl's list of "catalytic" soft law
declarations includes the Stockholm Declaration on the Human Environment, in Report of
the United Nations Conference on the Human Environment, June 5-16, 1972, U.N. Doc.
AICONF.48/13 (1972), reprinted in 11 I.L.M. 1416 (1972); and World Charter for Nature,
U.N. GAOR, 37th Sess., Supp. No. 51 U.N. Doc. A/37/51 (1982). See also ANDRt
NOLLKAEMPER, THE LEGAL REGIME FOR TRANSBOUNDARY WATER POLLUTION 246 (1993)
(discussing the "functions of non-legal rules").

47. Handl, supra note 46, at 8, quoting Lang, Die Verrechtlichung des internationalen
Umweltschutzes, 22 ARCHIv DES VoLKERREcHTs 283, 303 (1984).
48. Bodansnky, supra note 18, at 429.
49. Benvenisti, supra note 33, at 402.
50.
Id.
51. Id.
2000]
and the regime as an agent of socialization demands it. On the first

point, Transformationalists see consensus decision-making as
compelled by the broader international legal order: a system largely
based on consent and unsupported by centralized enforcement. As
Gehring asserts: "[b]ecause the international legal system lacks a
centralized authority for the creation and enforcement of law,
consensus, at least among the most important actors, is necessary for
the creation of new rules or international law and their adaptation to
changing conditions. 52
The other justification for a consensus rule is that the principal
activity of a Transformational regime is to bring together all
stakeholding states within the regime and build a consensus for
cooperative policy within the Transformational regime. Again
Gehring affirms the position that law making within international
environmental regimes is a "quest for consensus"53 and that
"[o]rganizing the process to shape consensus" is "the most important
operative function" of such regimes. 4 Since the Transformational
process relies on broad participation in iterated discussions and
information sharing, the consensual orientation is necessary to give a
voice to all states with a stake in the environmental problem.
"Precisely because these institutional structures lack independent
power and operate through consensus," conclude Brunn6e and Toope,
"they have been able to promote continuous dialogue and a gradual
merging of positions among the parties." Young comes to similar
conclusions. His "institutional bargaining" model relies explicitly on
a consensus-oriented voting rule; a requirement for near unanimity
provides a necessary incentive to put together "packages of provisions
that are acceptable to as many of the participants as possible. 55
Agreements are effective "only when all the major parties and interest
groups come away with a sense that their primary concerns have been
treated fairly." 56 Consensus signals that the process has been
52. Gehring, supra note 12, at 38; see also Lang, supra note 34, at 120 (arguing that
evolution of the regime cannot proceed faster than that level dictated by the "permissive
consensus" of the parties).
53. Gehring, supra note 12, at 37.
54. Id. at 38.
55. Oran Young, Negotiating an International Climate Regime: The Institutional
Bargainingfor Environmental Governance, in GLOBAL AccoRD, supra note 11, at 431-32;
see generally Oran Young, The Politics of International Regime Formation: Managing
NaturalResources and the Environment,43 INT'L ORG. 349 (1989).
56. YOUNG, supra note 27, at 109.
[38:465
concluded and that the rules that have been promulgated will take on
the necessary legitimacy to promote long-term cooperation. 7
D.
Compliance Control:Manage Rather Than Enforce

Compliance
Another pillar of the Transformational Approach to regime

design is that compliance should be managed rather than enforced. 8
More coercive and adversarial mechanisms such as adjudication
procedures and multilateral sanctions are considered to be
unnecessary and, worse, counter-productive.
Adherents of the Transformational Approach start from the
assumption that states have a propensity to comply with their treaty
obligations. 9
Reviewing enforcement and the "success" of
international environmental law, O'Connell concludes that
"[i]nternational law is not widely disobeyed; compliance is achieved
despite the lack of domestic-type enforcement institutions."6 Indeed,
Transformationalists insist that non-compliance where it does occur,
is only rarely a product of defection. Deliberate cheating, they argue,
is an unusual event. "Only infrequently," maintain Chayes and
Chayes, "does a treaty violation fall into the category of willful
flouting of legal obligations."
Non-compliance, they stress, has three common causes. The
first is the prevalence of ambiguous and vague rules that almost
invariably leave ample room for reasonable differences in
57.
See Brunn6e & Toope, supra note 2, at 32; see also FRANCK, THE POWER OF
LEGITIMACY AMONG NATIONS, supra note 37.
58. See CHAYES & CHAYES, supra note 2, at 3; see also George W. Downs et al., Is the
Good News About Compliance Good News About Cooperation?, 50 INT'L ORG. 379 (1996);
George W. Downs, Enforcement and the Evolution of Cooperation,19 MICH. J. INT'L L. 319
(1998); Kyle W. Danish, The New Sovereignty: Compliance with InternationalRegulatory
Agreements, 37 VA. J. INT'L L. 789 (1997) (book review).
59. CHAYES & CHAYEs, supra note 2. Oft-cited in Transformational literature is
Henkin's famous assertion that "almost all nations observe almost all principles of
international law and almost all of their obligations almost all of the time." LoUIs HENKIN,
How NATIONS BEHAVE 47 (2d ed. 1979).
60. Mary Ellen O'Connell, Enforcement and the Success of International
EnvironmentalLaw, 3 IND. J. GLOBAL LEGAL STUDIEs 47, 50 (1995). Some recent studies
reveal a more complicated picture of compliance rates. In a study that looks at the
compliance rate of eight states in connection with five treaties, Weiss and Jacobson find that
compliance rates vary substantially across treaties and across states, with developed
democracies often doing far better than developing or nondemocratic states. See EDrrHi
BROWN WEISS & HAROLD K. JACOBSON, ENGAGING CouNTREs 511 (1998).
20001
interpretation and resulting state behavior.61 The second is the

common and usually unavoidable time lag between fundamental
reform and performance. A long-term change of values and interests
62
does not take place overnight so progress is necessarily slow at first.
The third stems from the lack of technical or administrative capacity
to implement complex environmental regulation. States may want to
comply but they may not always be able to do so until the resourcesin the broadest sense of that term-are available.63
Such sources of non-compliance are not particularly
Why punish state behavior most accurately
blameworthy.
6
characterized as "non-compliance without wrongfulness"? "
Adherents of the Transformational Approach are therefore
particularly critical of the "preoccupation" with sanctions evinced by
colleagues in other areas of international law and international
relations and by environmental NGOs.65 Not only are sanctions
inappropriate, they argue, but they are also liable to do more harm
than good by alienating and polarizing member states. Moreover, the
situation is exacerbated by the fact that only the most powerful states
can organize a multilateral sanctioning response and that such
successful results as there are tend to be temporary.66
61. See CHAYES & CHAYES, supra note 2, at 10-12.

62. See id. at 15-17; see also Abram Chayes & Antonia Handler Chayes, Adjustment
and Compliance Processesin InternationalRegulatory Regimes, in PRESERVING THE GLOBAL
ENVIRONMENT 280 (Jessica Mathews ed., 1991).
63. See CHAYES & CHAYES, supra note 2, at 13-15.
64. Martti Koskenniemmi, supra note 2, at 145.
65. Chayes & Chayes attribute this preoccupation, in part, to a prevalent criminal-law
like model of international law that emanates from a misconceived analogy with domestic
law models: "[T]he ongoing pressure for treaties with teeth reflects an easy but incorrect
analogy to domestic legal systems, where formal sanctions imposed by the coercive power of
the state are thought to play an essential role in enforcing compliance with legal rules. Public
discussion of existing and proposed treaties is often conducted in terms of what we have
elsewhere called the criminal law or law enforcement model of treaty implementation."
CHAYES & CHAYES, supra note 2, at 31, citing, among others, Abram Chayes & Antonia
Handler Chayes, From Law Enforcement to Dispute Resolution: A New Approach to Arms
Control Verification and Compliance, 14 INT'L SECURITY 140 (1990). Bodansky identifies
two contrasting approaches to legal scholarship on the climate change problem. One is the
"hard" model which reflects a "domestic criminal law"d-ike approach and calls for specific
obligations, binding dispute resolution, and sanctions for violators. The other, "soft" model
emphasizes building scientific and normative consensus incrementally through discussion
and "encouraging rather than enforcing compliance." Daniel Bodansky, The History and
Legal Structure of the Global Climate Change Regime, in INTERNATIONAL RELATIONS AND
GLOBAL CLIMATE CHANGE, supra note 12, at 22-24.
66. See CHAYES & CHAYES, supra note 2, at 107-08; see also Martti Koskenniemi,
Comment on the Paperby Antonia Handler Chayes, Abram Chayes, and RonaldMitchell, in
SUSTAINABLE DEVELOPMENT AND INTERNATIONAL LAw 91-92 (Winfried Lang ed., 1995).
COLUMBIA JOURNAL OF TRANSNATIONAL LA
[38:465
[
Advocates of the Transformational Approach level similar

criticisms at dispute settlement mechanisms and other third-party
adjudication-based bodies. These mechanisms are too formal, overly
cumbersome and difficult to initiate.67 Brunnre and Toope argue that
such bodies are ill suited to render satisfactory decisions about the
complex subject matter and "highly polycentric" disputes that
characterize international environmental law and politics.68 Such
disputes tend to involve too many actors to lend themselves well to a
plaintiff-vs.-defendant model of resolution. The mutable, highly
technical nature of the issues involved can defy a one-time
determination of liability. Under what circumstances, for example,
could one party "sue" another party for non-compliance with
provisions of the Convention on Biological Diversity?
Transformationalists find support for their views in the
historical experience of international environmental regimes.
"[S]anctioning authority," Chayes and Chayes observe, "is rarely
granted by treaty, rarely used when granted, and likely to be
ineffective when used."69
By contrast, the dispute settlement
procedure-another formal instrument of enforcement-is built into

practically every international environmental regime. But even here,
as Transformationalists often note, such procedures have never been
deployed in the context of an international environmental regime.70
Apparently, Szrll concludes, states must not want strong enforcement
mechanisms to complement their cooperative arrangements. 7
Szrll and other Transformationalists insist that sanctions and
dispute settlement mechanisms are simply too backward looking, too
coercive, too adversarial, and ultimately too alienating. They are
fundamentally incompatible with the Transformational regime
because they have a chilling effect on the broad participation, openended dialogue, and information sharing that drives the process.
Brunnre and Toope maintain along these lines that adjudication
processes rely too often on "confrontational forms of advocacy" and
67. See Jacob Werksman, Designing a Compliance System for the UN Framework
Convention on Climate Change, in IMPROVING COMPLIANCE WITH INTERNATIONAL
ENVIRONMENTAL LAW 85, 102 (James Cameron et al. eds., 1996) (describing common
criticisms of dispute settlement mechanisms).
68. See Brunn6e & Toope, supra note 2, at 46, quoting Lon L. Fuller, The Forms and
Limits ofAdjudication, 92 HARV. L. REV.353 (1978).
69. CHAYES & CHAYES,supra note 2, at 32-33.
70. See, e.g., Brunmn6e & Toope, supra note 2, at 47; David G. Victor, The Early
Operation and Effectiveness of the Montreal Protocol's Non-Compliance Procedure,
International Institute for Applied Systems Analysis Executive Report 96-2 (May 1996);
NOLLKAEMPER, supra note 46, at 297-98.
71. See Sz6ll, supra note 2, at 107.
2000)
TRANSFORMATIONAL MODEL OF REGIME DESIGN
"adversarial processes of articulation." They go so far as to suggest

that something about the nature of these mechanisms promotes the
exclusion of ecosystem and intergenerational interests from regime
dialogues.72
Adherents of the Transformational Approach advance an
alternative to the hard coercive enforcement model of compliance
control. "A soft approach to obligations," argue Brunn~e and Toope,
"is likely to facilitate the confidence building necessary for the
creation of a regime, as well as encourage broader participation by
states . . . 7" This soft alternative is the Managerial Strategy;
according to which, instances of apparent non-compliance should
prompt a multilateral dialogue aimed at problem solving, rather than
triggering punishments: "As in other managerial situations, the
dominant atmosphere is one of actors engaged in a cooperative
venture, in which performance that seems for some reason
unsatisfactory represents a problem to be solved by mutual
consultation and analysis, rather than an offense to be punished."'74
For effective regimes, "promoting reevaluation of state interests
75 [is]
more important than forcing behavior against a state's interest.
Transformational regimes have a number of avenues for
managing compliance. One method is through continuous dialogues,
meetings of Conferences of the Parties, and negotiations of new
protocols for the regime. Setear argues that the very iteration inherent
in transition from signature to ratification and then convention to
protocol is adequate to ensure adherence to obligations and resilient
72. Brunn~e & Toope, supra note 2, at 46.
73. Id. at 57.
75. Levy et al., supra note 16, at 398. The Managerial Strategy of compliance control
apparently is making inroads not only among scholars but also among policy-makers. At a
press conference on Earth Day in 1997, reporters asked the U.S. Assistant Secretary of State
for Oceans and Environment Scientific Affairs if she could envision a time when the U.S.
would enforce sanctions against states not abiding by international environmental treaty
obligations. She responded:
Actually, I think on environment, we have gone down a different road, which is
a more cooperative road because we need all countries to solve these problems
.... But I will say this, one of the things that is most disturbing as we negotiate
these treaties is the capability of countries who are involved in the negotiation
to actually implement and [sic] what they commit to doing .... We believe, on
the other hand, that the way to deal with that is not via sanctions-except
perhaps in the most extreme cases-but with assistance and with help and
because we find that in most cases these countries are very interested in trying
to do what they say they're going to do.
Press Release on Earth Day, US Dep't of State Press Release, Apr. 22, 1997 (visited Feb. 13,
(statement of Eileen
2000) <http://secretary.state.gov/www/statements/970422a.html>
Claussen).
[38:465
regimes.76 Iteration stimulates a concern for reputation and thereby

lengthens the shadow of the future.
Transformationalists also emphasize that regimes have "active
instruments of management" at their disposal. For example, regimes
with financial mechanisms and scientific bodies can address capacity
deficits in member states by providing them with financial resources
and data about environmental quality. Iterated regime-sponsored
negotiating helps reduce the ambiguity of treaty rules and obligations.
Self-reporting complemented by monitoring by environmental NGOs
and special regime bodies can make transparent the extent to which
states are implementing their obligations. Transformationalists argue
that once a member state's incomplete implementation is revealed,
other member states can confront, cajole, and shame the recalcitrant
state party into compliance." According to Chayes and Chayes,
regimes supported by international organizations make particularly
good compliance managers because such organizations have ample
resources for comprehensive assessment of state performance and
because they provide a ready forum for peer pressure:
They develop information in their field of concern,
help check and verify party reports, and analyze and
critique the performance of treaty parties in a public
analogue to review and assessment that is often harsher
than a diplomatic forum can accommodate. "In the
end, they contribute greatly to the exposure and
shaming of persistent offenders and often organize
dissenting elements in the domestic political arena."78
Thus articulated, the compliance strategy advocated by
Chayes and Chayes is not solely a "Managerial" approach, in which
cooperating states merely provide assistance to well-meaning
violators. Although they are clearly critical of a compliance strategy
based on the threat of military or economic sanctions, it appears that
76. See generally John K. Setear, Law in the Service of Politics: Moving Neo-Liberal
Institutionalism from Metaphor to Theory by Using the International Treaty Process to
Define "Iteration," 37 VA. J. INT'L L. 641 (1997); see also John K. Setear, An Iterative
Perspective on Treaties: A Synthesis of International Relations Theory and International
Law, 37 HARv. INT'L L.J. 139 (1996); Levy et al., supra note 16, at 402 (arguing that
"institutions that create ongoing negotiating processes help make commitments more credible
by ensuring regular interaction among participants on the same set of issues.").
77. See Oran R. Young, The Effectiveness ofInternationalInstitutions:HardCases and
Critical Variables, in GOVERNANCE WITHOUT GOVERNMENT 160, 176-77 (James N. Rosenau
& Ernst-Otto Czempiel eds., 1992) (arguing that the risk of detection and exposure can be
more important to a state than the threat of sanctions).
2000]
487
even they acknowledge the need for coercion. A more accurate

interpretation of the Chayes and Chayes theory of compliance, then, is
that it rejects reliance solely on a material enforcement strategy,
consisting of threats to punish a state in the pocketbook or on the
battlefield, in favor of a social enforcement strategy, which uses
regime-generated information and regime-generated discourse to
persuade, shame, and cajole offending states into compliance.79 In
this view, increasing international interdependence enhances the
importance of a state's "social status."8 This condition, described by
Chayes and Chayes as the "New Sovereignty," constitutes a
compliance strategy that leverages social status to be a very powerful
tool.
Nevertheless, some Transformationalists find even this
rhetoric of "shame" and "offense" inappropriate and polarizing. In
their view, such concepts should be jettisoned from regime discourse
in order to avoid the unraveling of the consensus-building process:
In an attempt to encourage the progressive
implementation of norms, negotiators and drafters of
international environmental agreements have sought to
discourage conflict by moving away from the
terminology of "disputes." We would go further and
avoid even the terminology of "compliance," for it still
tends to promote the crystallization of issues as
"disputes." "The notion of 'implementation' is broad
enough to encompass the progressive development of
norms and, when necessary, issues of adherence to
established norms. 81
Instead, these Transformationalists are hailing a new
development in international environmental law: the Non-Compliance
Process (NCP). 2 Its name notwithstanding, this new mechanism
reflects a shift in focus from "non-compliance" to "implementation"
or "dispute avoidance." NCPs have been developed in both the ozone
79. See Danish, supra note 58, at 806-08.
80. See CHAYES & CHAYES, supra note 2, at 27 ("The need to be an accepted member
in this complex web of international arrangements is itself the critical factor in ensuring
acceptable compliance with regulatory agreements.").
81. Brunn~e & Toope, supra note 2, at 44; see also Koskenniemi, supra note 2, at 145,
quoting S. ROSENNE, BREACH OF TREATY 79 (1985). (Koskenniemi observes that the term
"non-compliance" may be preferable to the term "breach" in most cases because the latter
"'contains a pejorative element which does not facilitate the diplomatic handling of the
resultant situation."')
82. See, e.g., Koskenniemmi, supra note 2; Victor, supra note 70; Brunmne & Toope,
supra note 2, at 44-46; Werksman, supra note 67, at 10 1-02.
[38:465
and the transboundary air pollution regimes.83 Transformationalists

celebrate NCPs as the Managerial Strategy's alternative to dispute
settlement procedures. NCPs are multilateral rather than bilateral;
consensual instead of adversarial; facilitative not confrontational;
forward-looking instead of backward-looking. Whereas a disputesettlement mechanism seeks judgment, NCPs aim for a negotiated
solution that helps put the member state-which usually is willing but
not able, according to Transformationalists-back on track toward
full implementation.
IV.
THE FRAMEWORK CONVENTION ON CLIMATE CHANGE: THE

ARCHETYPE OF THE TRANSFORMATIONAL DESIGN STRATEGY
The United Nations Framework Convention on Climate

Change is a regime constructed in strict accordance with the
Transformationalist blueprint.
The architecture of the regime
incorporates the design features described above, and the presence of
these features has frequently been credited with promoting the
regime's long-term effectiveness. Handl asserts that the Convention's
remarkable degree of inclusiveness is "the result of a conscious
strategy of seeking [the] widest possible acceptance, even at the costs
of a substantive normative dilution, on the expectation that the
provisions concerned would strengthen normatively over time as a
result of the reporting and review processes established in connection
with these instruments."" a A 1994 report by the U.S. Office of
Technology Assessment (OTA) supports a continued emphasis on
inclusiveness, even though it acknowledges models showing that a
regime consisting of a limited group of states with high emissions
could achieve a substantial global impact and would promote easier
negotiations. Thus, the report concludes that "if the whole endeavor
83. In the context of the ozone regime, the NCP was anticipated by language in the
Montreal Protocol. Article 8 required the parties to "consider and approve procedures and
institutional mechanisms for determining non-compliance with the provisions of the Protocol
and for the treatment of Parties found to be in non-compliance." Montreal Protocol, supra
note 6, 1522 U.N.T.S. at 35, 26 I.L.M. at 1556. The procedure was finalized in the fourth
Meeting of the Parties in 1992. See Fourth Meeting of the Montreal Protocol Parties, supra
note 7. The current form of the 1994 Protocol to the 1979 Convention on Long Range
Transboundary Air Pollution contains provisions for the development of a NCP modeled
after the Montreal Protocol NCP. See Protocol to the 1979 Convention on Long-Range
Transboundary Air Pollution on Further Reduction of Sulphur Emissions, adopted June 13,
1994, 1302 U.N.T.S. 217; see also Werksman, supra note 67, at 101.
84. Giinther HandI, Controlling Implementation of and Compliance with International
Environmental Commitments: The Rocky Road from Rio, 5 COLO. J. INT'L ENvTL. L. &
POL'Y 305, 310 (1994).
2000]
is to be seen as legitimate, it must represent a broad international

consensus, possibly including most nations of the world."85
Just as the Transformational strategy prescribes, the
Framework Convention contains very little in the way of substantive
or short-term commitments. This is of no great concern to
Transformationalists, however, because they view the initial
Convention as only a first small step in a long evolutionary process.
Thus, Bodansky observes that provisions within the FCCC are
"constructively ambiguous" because they "allow for further
negotiation of contentious issues."86 To operate otherwise, it is also
believed, would jeopardize the breadth of the Transformational
process because it would restrict inclusiveness: "It is not desirable
that, by choosing a highly quantified and legally binding policy
instrument, the international legal regime loses the participation of
key states at the early stages of building the regime."87 The
Convention focuses instead on enunciating abstract principles88 and
calling for information gathering and sharing by the parties.89 In
addition to these features, the Convention contains a pledge by a
category of mostly developed country parties, called "Annex I
parties," to reduce carbon dioxide emissions to 1990 levels by the
year 2000.90 However, this promise has been generally interpreted as
non-binding.9 Indeed, only Russia and the other Eastern Bloc parties,
who suffered an economic collapse and therefore a steep reduction in
fossil fuel use, are expected to meet the year 2000 emissions target.
All others are expected to exceed the target substantially.92
There also appears to be a commitment to near unanimity as
the basis for decision-making. The text of the FCCC provides that the
Convention may be amended through a three-fourths majority vote,
85. Office of Technology Assessment, Climate Treaties and Models: Issues in the
International Management of Climate Change 4, OTA-BP-ENV-128 (1994).
86. Bodansky, supra note 18, at429.
87. David G. Victor & Julian E. Salt, Keeping the Climate Treaty Relevant, Vol. 373
NATuRE, Jan. 26, 1995, at 280-82.
88. These include an emphasis on the importance of intergenerational equity (art. 3.1);
the notion of differentiated responsibilities (art. 3.1); the precautionary principle (art. 3.3);
and the promotion of sustainable development (art. 3.4).
89. See id. at art. 12.
90. See id. at art. 4.2.
91. See Bodansky, supra note 18, at436-38.
92. See UNFCCC 1996, Review of the Implementation of the Convention and of
Decisions of the First Conference of the Parties, Commitments in Art. 4.2, Second
Compilation and Synthesis of First National Communications from Annex I Parties:
Executive Summary, FCCC/CP/1996/12 (visited Apr. 1,2000) <http://www.unfccc.de/>.
[38:465
"if all efforts [to achieve] a consensus have been exhausted."93 This
provision notwithstanding, Bodansky notes that the overall structure
of the FCCC has given parties the impression that consensus is "not
a desirable goal but a legal requirement for action by the
merely
, 94
COP.
Finally, in line with the Transformational philosophy of

design, the FCCC contains virtually no enforcement mechanisms. To
serve both information diffusion and compliance control, the FCCC
sets out an elaborate system of self-reporting on national greenhouse
sinks and sources, as well as projections of future emissions. This
reporting and review procedure, however, is explicitly "intended to be
non-confrontational and facilitative in nature. Its functions include
promoting transparency and focusing peer and public pressure on
states."9 The FCCC calls on the Conference of the Parties to evaluate
the need for a mechanism similar to the Non-Compliance Process
created in the ozone and transboundary regimes. However, unlike the
Montreal Protocol, it does not mandate the development of such a
process and in general it shies away from the rhetoric of noncompliance. Instead, Article 13 of FCCC directs the Conference of
the Parties to "consider the establishment of multilateral consultative
process" for "resolving questions regarding implementation."96 It is
worth noting that Szrll-the observer who has concluded that regimes
abhor enforcement-has served as the chair of the Conference of the
Parties' "ad hoc group" that is negotiating further development of this
"multilateral consultative process."97 Predictably, neither Article 13
nor any other article of the Convention attaches sanctions to noncompliance.
Given the Transformational philosophy, it makes little sense
to criticize the FCCC for failing to include adequate enforcement
provisions or implementation details.98 Only time will tell whether
such omissions are a mistake or part of a fruitful evolutionary
strategy. It is, however, possible to step back and try to determine
whether the four design principles appear to have generated the kind
of Transformational dynamic its architects and proponents promised.
93. Id. at art. 15.3.
94. Bodansky, supra note 65, at 21.
95. Id. at 29.
96. UNFCCC art. 13; see also Bodansky, supra note 65, at 30.
97. Report of the Meetings of the Subsidiary Bodies to the Framework Convention on
Climate Change 28 July-7 August 1997, Summary, 12 EARTH NEGOTIATIONS BULLETIN 28
(visited Apr. 1, 2000) <http://www.iisd.ca/climate/>.
98. Such criticism is widely available. See, e.g., Christopher Flavin, The Legacy of Rio,
in STATE OF THE WORLD 1997, 3, 13-14 (Lester Brown et al. eds., 1996).
2000]
491
Superficially, the answer appears to be yes. While we have no idea

whether the Kyoto Protocol is destined to enter into force or not, it
remains the case that parties to the vague and shallow 1992 FCCC
negotiated and opened for signature a sweeping and ambitious
protocol. Even if the Kyoto Protocol never enters into force, it is a
noteworthy event that it came into being at all-and an apparent
vindication of the Transformational Approach.
However, the precise mechanisms responsible for turning the
Framework Convention into the Kyoto Protocol are not clear.
Looking at the major political and other developments that occurred
between 1992 and the end of 1997, it is by no means obvious to what
extent they were produced by or their effects were magnified by the
design of the FCCC. For example, in the 1992-97 period, the
Intergovernmental Panel on Climate Change (IPCC)-the dangerous
climate change regime's principal epistemic community-reported
increasing evidence of the scientific certainty of climate change. Yet,
even if the diffusion of the IPCC's new information about the dangers
climate change was an important element in changing the interests of
key states, would not those states have heard the news anyway even
had they not been members of the regime? In other words, was
maximum inclusion really necessary in order to ensure that states
received the new IPCC information? It is difficult to see how the
pronouncements of the IPCC, which is not a by-product of the 1992
Framework Convention but, rather, was established by the World
Meteorological Organization and the United Nations Environment
Programme in 1988, would have had less influence were the parties to
the Framework Convention fewer in number.
Other key developments are even more difficult to link to the
Transformational design of the regime. For instance, one of the most
important "transformations" in the interim between the FCCC and the
Kyoto Protocol occurred in the climate change politics of the United
States, which had blocked binding obligations in 1992 but
subsequently, in 1995, expressed its willingness to negotiate such
obligations. To what extent was this transformation the result of the
Transformational architecture of the FCCC, such as its consensusbuilding meetings of the Conference of the Parties and the dramatic
IPCC reports? And to what extent was it the result of the ascension of
Albert Gore to the Vice Presidency? Similarly, how are we to
measure the causal force of the design of the FCCC versus the causal
force of continued implosion of the Russian economy in explaining
Russia's sudden acquiescence to a legally binding obligation to
reduce its emissions to a 1990 baseline? As we shall argue later, one
of the problems with evidence commonly marshalled on behalf of the
[38:465
Transformational model is that it rarely acknowledges the role of such

exogenous factors.
Further muddying the waters is the fact that, at certain key
turning points between 1992 and 1997, the Parties seemed to jump
start development of the Climate Change regime only by violating
key Transformational principles. As late as the summer of 1996, the
climate change regime appeared to have run aground. Only a handful
of Annex I countries seemed likely to comply with their pledges to
stabilize greenhouse emissions at 1990 levels by 2000. Then, at the
second meeting of the Conference of the Parties in July 1996, the
Parties negotiated a "Geneva Declaration" endorsing the conclusions
of the IPCC and calling for the establishment of substantial and
legally binding emission reduction obligations. For the first time, the
United States supported such a legal agreement. Yet, the Geneva
Declaration was never formally adopted by the Conference of the
Its advocates feared that consensus decision-making
Parties.
requirements-which have given OPEC states a "virtual veto power
over the negotiations" 99-- would have made this pledge a non-starter.
The COP decided only to "take note" of the declaration.'00
In short, therefore, the breakthrough achieved by the Geneva
Declaration was possible only because the Parties circumvented the
by
prescribed
requirement
decision-making
consensus
Had the COP adhered to the
Transformationalists.
Transformationalists' preferred decision-making rule, one has to
wonder whether the OPEC states would have kept the regime
shackled to the 1992 framework.
Similarly, the provision of the Kyoto Protocol authorizing the
establishment of an emission allowance trading mechanism was made
possible only because some of the Parties consciously bypassed
consensus decision-making. Before the Kyoto negotiations, the
United States had stated clearly that the establishment of a trading
mechanism was a necessary condition to its agreement to any
emission reduction obligation.' In the final days of the negotiations,
the United States and the European Union came to an agreement on a
trading provision that would have appeared as Article 3.10 in the
Protocol. However, in a debate that began on December 10 and ran
into December 11, the final day of the negotiations, China and several
99. Bodansky, supranote 65, at 21.
100. See id.
101. See, e.g., John H. Cushman, Jr., American Negotiator Hedges Over Climate
TreatyTalks, N.Y. TIMEs, Nov. 26, 1997, at A32 (describing chief U.S. negotiator's view that
treaty must provide for international emissions trading "to be acceptable").
2000]
493
members of the G-77 negotiating group stood firm against inclusion

of Article 3.10 or any other trading provision within the Protocol.
Raul Estrada Oyuela of Argentina, who was presiding, suspended the
debate in order to see if informal discussions could lead to a
compromise. After a break, Estrada announced, (1) the removal of
Article 3.10, (2) the insertion of a separate article establishing an
interim arranagement for emissions trading, and (3) a draft decision of
the COP requesting a study of methodologies, rules, and guidelines
necessary for a trading mechanism. As described by the Washington
Post: "Estrada read the compromise text to the delegates and then
quickly declared the debate over with a stroke of his gavel, taking
advantage of conference rules that allow the chairman to judge when
a consensus has been reached.""l 2 In other words, there was no floor
discussion and no vote. Again, this incident suggests that the Kyoto
Protocol trading mechanism-which may turn out to be the most
important element of the climate change regime-was established
only because the Parties were willing to sidestep the decision-making
rule prescribed by the Transformational Approach. 0 3
V.
SOURCES OF SKEPTICISM
Given the difficulty of inferring very much about the validity

of the Transformational vision from the history of the climate change
regime, it makes sense to broaden the boundaries of inquiry. In this
section, we will look at two theoretical issues: (1) the extent to which
the four Transformational design principles are necessarily implied by
constructivist tenets; and (2) the implications of the fact that there are
a number of nonconstructivist sources of preference change and
cooperative evolution in the international system.
102. Jody Warrick, Climate PactRescued in FinalHouse; Turbulence PervadedFirst

Round of Greenhouse Gas Talks, WASH. POST, Dec. 13, 1997, at Al.
103. Of course, this event is subject to a competing interpretation. To wit: the event
shows that China and the other G-77 parties had been transformed and that a consensus had
formed in favor of the trading rules because, had those parties truly opposed the proposed
trading rules, Chairman Estrada's parliamentary maneuver would have prompted their refusal
to sign the Protocol. In fact, China and most other G-77 parties have signed the Protocol
despite this incident. This interpretation is difficult to disprove. It could be that these
parties' opposition to the trading rules was genuine but not strong enough that they would
take the dramatic step of refusing to sign. Alternatively, their opposition might be strong
enough that, if the trading rules are not modified or somehow reinterpreted to their
satisfaction, they will refuse to ratify the Protocol. In any event, the incident raises the
question whether a consensus decision-making requirement helped or hindered the
development of the Kyoto Protocol.
[
[38:465
Since the theoretical inspiration for the Transformational

design principles is constructivism, it makes sense to begin this
inquiry by evaluating the extent to which they necessarily follow from
it. "0 Alexander Wendt, a major figure in the constructivist school,
emphasizes three processes of interaction-based transformation that
generate cooperation by changing underlying interests." 5 The first
two are closely interrelated and involve "reflected appraisal," a
procedure whereby actors adopt identities, at least in part, by learning
through interaction to see themselves as others see them. The more
materially or psychologically dependent an actor is on others, the
greater will be the impact stemming from the perception of these
external actors.
In the first of the two reflected appraisal processes, the
emphasis is on the impact that cooperative interaction will have on
the "other": "By showing others through cooperative acts that one
expects them to be cooperators too, one changes the intersubjective
knowledge in terms of which their identity is defined."'0 6
The second process is a reflective variant of the first. By
engaging in cooperative interaction a state projects something about
itself that redefines the intersubjective environment from which its
self-conception is derived. As the other state absorbs this new
presentation of the cooperator's self, it projects this new identity back
and resocializes the cooperative state to a new conception of itself.
Thus by engaging in cooperative behavior, an actor will gradually
change its own beliefs about who it is, helping to internalize that new
0 7 These two processes do more than generate a
identity for itself."
level of cooperation greater than that predicted by a strategic, gametheoretic model; they also produce a convergence of identity such that
actors learn to see themselves as "we" bound by certain norms.
104. As applied to international treaty regimes, constructivism is "an account of law not
as a body of rules but as a system of legal relations, at once universalizing from individual
particularities, patterns of interactive behavior, and particularizing society's universal
purposes." Benedict Kingsbury, The Concept of Compliance as a Function of Competing
Conceptions of International Law, 19 MICH. J. INT'L L. 345, 358 (1998) (describing
constructivism as one of a number of competing theoretical "accounts" of international law
made evident in discussions of compliance).
105. See generally Alexander Wendt, Constructing International Politics, 20 INT'L
SECURITY 71 (1995) [hereinafter Wendt (1995)]; Alexander Wendt, Collective Identity
Formationand the InternationalState, 88 AM. POL. Sci. REv. 384 (1994) [hereinafter Wendt
(1994)]; Alexander Wendt, Anarchy Is What States Make of It, 46 INT'L ORG. 391 (1992)
[hereinafter Wendt (1992)].
106. Wendt (1994), supra note 105, at 390.
107. See id. at390-91.
2000]
495
The third process involves the more self-conscious dimension

of rhetorical practice in the form of discussion, dialogue, persuasion,
and political argument. According to Wendt, "the goal of rhetorical
practices in collective action is to create solidarity; thus they may
have an important expressive function independent of their
instrumental value in realizing collective goals."' 8
Acts of
cooperation thus create a language of cooperation; this language then
frames their responses to new events. In this way, acts of cooperation
engender further cooperation. Among the examples Wendt gives are
European statesmen talking about a "European identity" and
Gorbachev trying to end the Cold War with a rhetoric of "New
Thinking" and a "common European home."10 9
It is noteworthy that while the Transformational design
strategy incorporates elements of all of these three processes, the
definition of each is actually broad enough to encompass other, quite
different paths to preference change and cooperative evolution. One
such path, which is prominent in the literature, is what Harold Hongju
Koh calls the "Transnational Legal Process." In the Transnational
Legal Process, identity convergence occurs via "vertical
domestication," whereby international law norms "trickle down" and
become incorporated into domestic legal systems." 0 In contrast to the
Transformational process, this process frequently unfolds outside the
boundaries of formal negotiation where as many as six different kinds
of "agents" exert their influence in numerous fora. These include:
(1) transnational norm entrepreneurs; (2) governmental norm
sponsors; (3) transnational issue networks; (4) interpretive
communities and legal-declaring fora; (5) bureaucratic compliance
procedures; and (6) issue linkages."'
A number of different agents figure in Koh's description of
the movement to strengthen the land mine provisions of the 1980
Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May Be Deemed to be Excessively
Injurious or to Have Indiscriminate Effects. Transnational norm
entrepreneurs include groups like the Vietnam Veterans of America
Foundation, Human Rights Watch, Medico International of Germany,
108. Id.
109. Id.
I10. See Koh, supra note 2, at 626. Just when and where this trickle down process is
most likely to operate effectively is not clear. To date, Koh has concentrated his attention on
describing how this process operates rather than in characterizing the conditions under which
it is likely to operate most effectively.
11. See id. at 646.
[38:465
Handicap International of France and the Mines Advisory Group of

England."' These groups managed to engage a host of prominent
individuals in different countries, in addition to a significant number
of nongovernmental organizations such as the International Red
Cross. When an inability to achieve a consensus sabotaged United
Nations-sponsored efforts to control land mines by updating the
Conventional Weapons Conference via the "Geneva Process," it was
these groups along with midsize countries that decided to pursue a
an alternative strategy that became known
total ban on land mines 'by
13
Process."
"Ottawa
as the
The Ottawa Process involves creating a new forum, in which
decisions will no longer be constrained by the norms of inclusiveness
or consensus. Its goal is to generate a powerful normative standard
that non-signatories will feel compelled to follow knowing that
otherwise they risk finding themselves grouped with states widely
considered to be the least progressive and most morally irresponsible
actors in the international system. There is some evidence that the
strategy works. Although they are not signatories to the Ottawa
Agreement, the Russians indicated that they eventually intended to
agreed to continue its
join the regime and the United States
14
moratorium of the sale of land mines.
Note that to the degree that the Ottawa Process has succeeded,
it has done so because a subset of progressive actors were willing to
abandon their attempts to achieve consensus in an inclusive forum
and to establish instead another one in which those rules no longer
applied. Had land mine advocates chosen instead to wait for the
preferences of Russia, China, North Korea, Libya, and the United
States to converge through collective deliberation, there is little doubt
that there would have been no treaty in December 1997 or now.
Creating an international agreement without the participation
of key states makes sense only if reformers-unlike
Transformationalists-believe that influence and diffusion patterns
continue to operate outside the boundaries of any single multilateral
institution. In today's world there seems to be ample justification for
such an attitude. High levels of NGO activity and increasing access to
media-two trends that Transformationalists have frequently
emphasized in other contexts-have progressively eroded the ability
of decision makers to limit the exposure of their citizens or
themselves to information about international problems and policy
112.
113.
114.
Seeid. at655.
Seeid. at658-61.
Seeld. at660-61.
2000]
alternatives. This is especially true when, as in the land mine case,

NGOs and the world media target states that they believe are
regressive or recalcitrant.
Although the Ottawa Process strategically rejects two of the
four design principles propounded by Transformationalism, it seems
clear that it is no less consistent with Wendt's vision of
constructivism. The two reflective appraisal processes that he
describes do not restrict the character of the actors whose perception
affects the subject state's self-conception. Nor does the third process
he discusses restrict what he calls "rhetorical practitioners" to those
signatories of a formal agreement.
This suggests that
Transformational principles, however normatively appealing they
may be, cannot fairly be said to represent the unique distillate of
constructivism. Worse, the contrast between the Ottawa Process and
the Transformational design principles raises the specter that under
some circumstances these principles may actually obstruct the
operation of constructivist processes.
We have no way of estimating the relative importance of the
Transformational process as compared with Koh's Transnational
Legal Process, but there are many reasons to suspect that the
horizontal convergence process at the core of Transformationalism is
weaker at the state level than at the level of individuals and at the
small group level. The individuals who were present at Kyoto were
not acting on their own behalf. They were there as agents representing
their governments and, as a consequence, their autonomy was limited.
Even if their personal preferences may have been transformed by the
experience of face-to-face interaction and negotiation with colleagues
from other states and NGOs, they were rarely if ever in a position to
unilaterally commit their state to a course of action that their superiors
(and other bodies constitutionally assigned the task of ratifying their
superiors' decision) believed to be ill advised. As articulate and
knowledgeable advocates, such individuals could, of course, work to
alter the opinions of their superiors, the media, and the public.
However, it is many steps from a representative changing her mind to
a significant change in state policy-also an inevitable feature of any
democratic system where oversight and due process operate as they
should.
The differences between the power of interaction to promote
transformation in small group settings and its operation in the
international system may help account for the large number of what
appear to be Transformational failures. We have already seen the
lengths to which key actors went to circumvent democratic due
process in the climate change negotiation process, because
[38:465
preferences, particularly those of the OPEC states, did not converge

with those of other states. Another such example is the Convention
for the Protection of the Mediterranean Sea Against Pollution
regime.115 It is difficult to think of a regime that embodies the
Transformationalist design logic more. It began with a high
participation rate, it embraced the principle of consensus, it initially
required few commitments from participating states, and it eschewed
heavy-handed enforcement. Yet despite this integrated design logic
and despite twenty years of member states' interaction and discussion
by member states, by most accounts this regime has yet to make any
in tackling the problem of non-point pollution by
notable progress
16
run-off."
land
Although Wendt does not dwell on the fact, one of the
interesting aspects of his three processes is that the operation of
several of them is actually predicated on there being a degree of
preexisting interstate cooperation. Thus, in the first, reflectivist
appraisal process, states demonstrate through cooperative acts that
they expect others to cooperate also. In the second, by engaging in
cooperation, states change their own environment, which then helps
them internalize their cooperative selves. This could leave a reader
wondering: (1) how the initial "prereflectivist" cooperation is
generated; (2) whether this process withers away or continues to
operate once reflectivism and the self-conscious dimension of
rhetorical practice go into operation; and (3) what the design
implications are of these other nonconstructivist inspirations for
cooperation.
The answers to the first two questions turn out to be
remarkably uncontroversial. No constructivist disputes the fact that
there are a variety of conditions and processes other than
constructivist ones that promote cooperation. Nor does anyone
contend that these processes end as soon as constructivist processes
begin to operate. Only the answer to the third question is unclear,
possibly because regime design is still an undeveloped craft and
possibly because prospective researchers are well-aware that each of
the myriad sources for cooperation (e.g., reducing transaction costs,
capturing economies of scale, increasing trade) would have to be
explored before one could confidently generate an answer.
115. See Protocol for the Protection of the Mediterranean Sea Against Pollution from
Land-Based Sources, approved May 16, 1980, 1302 U.N.T.S. 217, 19 I.L.M. 869 and
Convention for the Protection of the Mediterranean Sea Against Pollution adopted Feb. 16,
1976, 1102 U.N.T.S. 27, 15 I.L.M. 290.
116. See, e.g., Dead in the Water, NEW SCmNTIST, Feb. 4, 1995, at 26.
2000]
Fortunately, we are not interested here in the design

implications of every source of cooperation but in the more modest
task of seeing whether there is any reason to believe that these
nonconstructivist causes of multilateral cooperation are sometimes
best managed by design principles different from those advanced by
Transformationalism. If this is the case, exclusive reliance on
Transformationalism may cause the same counter-productive effects
that we encountered above in connection with transnational forces.
It is not possible within the confines of a single essay to
explore the design implications of every source of preference change
that fosters cooperative evolution, but we can look at those connected
with two that are prominent in the literature: relative price changes
and second-order consequences of state policy changes. A long
tradition of empirical research in economics that spans many
substantive policy arenas suggests that policy changes by states often
come about as the result of relative price changes that occur in the
wake of a technological innovation or a shift in resource
availability." 7 This seems to have been the pattern with a number of
international environmental regimes. For example, the success of the
Paris Commission (PARCOM) at controlling land-based sources of
Northeast Atlantic Pollution appears to have more to do with the
availability of water-based "muds" than a sudden willingness of states
to embrace more stringent and more costly measures. 18 Similarly, the
driving force behind the cessation of virtually all offshore dumping
and incineration under the Oslo Convention for the Prevention of
Marine Pollution by Dumping from Ships and Aircraft was
technological advances in land-based incineration that reduced the
cost of hazardous waste incineration, not the normative
transformation of Britain's environmental policy."l 9
Economic trends not directly connected with relative prices
can also inspire significant preference change in the direction of
cooperation. Increases in per capita income that come with greater
economic development are, for example, a major determinant of
environmental consciousness. As a consequence, the wealthier states
117. See, e.g., George J. Stigler & Gary S. Becker, De Gustibus Non Est Disputandum,
67 AM. ECON. REv. 76, 83 (1977).
118. See Peter M. Haas, Protecting the Baltic and North Seas, in INSTrrUTIONS FOR THE
EARTH, supra note 16, 133, 164. See Conference on the Prevention of Marine Pollution from
Land-Based Sources: Convention for the Prevention of Marine Pollution from Land-Based
Sources (1974), 13 I.L.M. 352.
119. See Patricia Birnie, Regimes Dealing with Oceans and All Kinds of Seas from the
Perspective of the North, in GLOBAL ENVIRONMENTAL CHANGE AND INTERNATIONAL
GOVERNANCE 62 (Oran R. Young et al. eds., 1996).
[38:465
in the North that for decades engaged in environmentally destructive

behavior now place a higher priority on environmental regulation than
do poorer states in the South.120
A combination of relative price changes resulting from
increased productivity and technological advances in the United
States and Japan and the declining performance of the European
agricultural sector were also factors in the preference changes that
produced the Treaties of Rome and propelled the evolution of the
European Community.
As Andrew Moravcsik emphasizes in
connection with French participation in the Treaties: "Neither
industrialists nor farmers felt any abstract commitment to the
European idea or to supranational institutions ....The preponderance
of evidence, I argue, supports the primacy of economic motivations,
as predicted by the economic theory of commercial policy."12 '
One of the things that items in this broad class of economic
changes tend to have in common is that they do not affect every state
in the same way at the same time. As a consequence, cooperative
progress-at least in the short term-is likely to be more rapid in
institutions that reject inclusiveness and initially involve only those
states most affected by the changes. The institution can be expanded
later, as other states also become affected by such changes and
thereby more predisposed to participating in collective action. The
European Union is the classic example in this regard. The speed of
the European Union's evolution was enhanced considerably by the
strategic exclusion of Britain in the Coal and Steel Agreement, and
even today the European Union continues to expand in a piecemeal
fashion.'22 The North American Free Trade Agreement (NAFTA) and
the Association of Southeast Asian Nations (ASEAN) appear to be
following much the same approach.'
120. See, e.g., THE WORLD BANK, WORLD DEVELOPMENT REPORT 1992: DEVELOPMENT
40(1992).
121. ANDREW MORAVSCIK, THE CHOICE FOR EUROPE 112 (1998).
122. Variable speed agreements, under which different states have different rights and
responsibilities, are another institutional solution to this problem. See Alberto Alesina &
Vittoria Grilli, On the Feasibiltiy of One Speed or Multispeed European Monetary
Unification, in THE POLITICAL ECONOMY OF EUROPEAN MONETARY UNIFICATION (Barry
Eichengreen & Jeffrey Frieden eds., 1994).
123. Arms control, which has more in common with environmental regulation than with
trade regulation, is also an area where inclusiveness has often been ignored with some
success. The designers of NPT evidently embraced the logic that the results of insisting on
inclusive membership would be to either have no treaty at all or one with even less substance.
Similarly, states went forward with the Chemical Weapons Convention even without the
participation of states such as Iraq, Iran and Libya, who are considered to be large producers
and possibly the most likely users of such weapons.
AND THE ENVIRONMENT, 11,
2000]
Various related processes can also operate to reduce the

chances that states initially excluded from an agreement will, as
Transformationalists warn, refuse to join an institution that they had
no part in designing. When a group of states forms a regional free
organization such as the EC that lowers tariffs for member states
while retaining current tariff levels for nonmembers, it makes imports
from other member states cheaper than similar goods from
nonmembers. Not surprisingly, this leads to a situation where an
increasing proportion of purchases made by member states are at the
expense of exporters in nonmember states. As a result, trade between
member and nonmember states will take place on a significantly
lower level than it would in the absence of the trade organization. As
the accumulated cost of diverted trade continues to mount, exporters
in nonmember states begin to press their own governments to join the
trade organization." To the extent that they succeed, this process can
be said to have changed state preferences in a way that is no less real
than if states had joined because their decision-makers had been
swayed by the rhetoric of "one Europe" or its equivalent.
If the principle of inclusiveness-perhaps the most basic tenet
of Transformationalism-is not robust in relation to other common
sources of preference change, we might begin to question whether
some of its other prescriptions are as critical to the evolution of
cooperation as its adherents claim. Arguably, this is true of
enforcement. The GATT was on the brink of collapse, at least in part,
because the regime's Transformational combination of soft
enforcement and consensus decision-making had proved ineffective.
The fact that the GATT's dispute settlement agreement became
binding only upon unanimous approval of the parties gave alleged
treaty violators a veto over any enforcement measure that might be
taken against it. Only when a different and stronger enforcement
system had been placed on the agenda of the Uruguay round did the
United States agree to participate.
The evolution of enforcement and cooperation has been even
more persistently linked in the case of the European Union. Every
time the European Union has expanded and become deeper, its
enforcement provisions and institutions (e.g., the European Court of
Justice) and decision-making rules (e.g., the Maastricht Treaty's
provisions allowing certain decisions to be made by super-majorities)
have strengthened. 2 Such examples are theoretically significant
124. See George W. Downs et al., Managing the Evolution of Multilateralism, 52 INT'L
ORG. 397 (1998).
125. See Ann Marie Burley & Walter Mattlie, Europe Before the Court: A Political
[38:465
[
because if Transformationalism is as powerful and reliable a process

as its proponents claim, we would expect it to produce via identity
convergence an institution that could be sustained with increasingly
less formal enforcement.
Transformationalists might reply that these trade agreements
are qualitatively different from those of primary concern to them
because trade is an excludable good, in the sense that the lower tariff
levels prescribed by an agreement are not automatically extended to
non-signatories. This kind of good makes a piecemeal approach
relatively easy to implement because, as we have seen, such a process
progressively enrichens member states relative to nonmember states
and provides the latter with an ever-increasing incentive to join.
Environmental agreements among others do not create anything
comparable.
Yet even in the environmental area there is evidence that a
regime that implicitly rejects Transformational principles can thrive.
The Montreal Protocol and the International Convention for the
Prevention of Pollution from Ships (MARPOL), often considered to
be the two most successful environmental regimes in terms of depth
of cooperation, both began without universal membership and contain
relatively refined enforcement measures.' 26
It is difficult to avoid the conclusion that the existence of
multiple sources of preference change with multiple design
implications undermines both the Transformational belief that identity
convergence is the primary engine for the evolution of cooperation
and its contention that cooperation can best be promoted by the
application of its four key design prescriptions. It suggests instead
that while the application of Transformational principles may speed
the evolution of cooperation in some cases, it seems likely to have
little effect or even retard it in others. As a first test of these claims,
the next section examines how environmental regimes that have
adopted the Transformational design strategy have fared compared to
regimes that have not.
Theory ofLegal Integration,47 INT'L ORG. 41, 74 (1993).

126. The locus of these enforcement measures may be at the level of the multilateral
institution as in the case of the Montreal Protocol or largely at the domestic level as in the
case of MARPOL. See RONALD B. MITCHELL, INTERNATIONAL OIL POLLUTION AT SEA:
ENVIRONMENTAL POLICY AND TREATY COMPLIANCE 182-85, 266 (1994).
2000]
VI.

EVIDENCE FROM A SURVEY OF ENVIRONMENTAL TREATIES
Proponents of the Transformational design strategy could

claim that case examples where it appears to have yielded poor results
are the exception rather than the rule. In most cases, they might argue,
it has yielded good results. Clearly, the matter calls for more
systematic inquiry than it has received.
A potentially helpful evaluation strategy is to move from the
presentation of examples and counterexamples to an analysis of a

more representative collection of cases. We reviewed the case
histories and structural characteristics of more than one hundred
existing international agreements and international legal instruments
as recorded in the United Nations Environment Programme Register
of International Treaties and Other Agreements in the Field of the
Environment. We eliminated agreements that were no longer in
force, agreements that had two or fewer members, and agreements for
which no outcome information was available, leaving us with a set of
fifty environmental regimes. This set of agreements is listed in
Appendix A. From the remaining group, we identified fourteen
agreements that at the time of their signing possessed three of the four
structural attributes that are the hallmarks of the Transformational
agreement. That is, each of these fourteen agreements: (1) included
all (or nearly all) relevant parties from its inception or deliberately
pursued an inclusive strategy to attract all relevant states as quickly as
possible; (2) defined obligations only in general terms, leaving states
to elaborate and apply them gradually at their own pace through
national legal processes or, where obligations were legally binding,
required only minor behavioral changes of member states; and (3)
contained virtually formal means of penalizing non-compliance. We
did not include a requirement for consensual decision-making
because, as in the case of the climate change regime, this tends to be
an informal norm rather than an explicit requirement. Almost
invariably, however, the consensus formally specified in the written
agreements establishing environmental multilaterals is quite high.
Table 1 compares the score of the median Transformational
agreement on each of the relevant structural attributes with that of the
median non-Transformational agreement designated as "all other." On
average, Transformational agreements initially contain dramatically
more members (72 vs. 13), have notably less-demanding initial
obligations (2.7 vs. 3.4 on a scale of 5), and have strikingly weaker
enforcement provisions (1.4 vs. 3.2).
[38:465
Table 1: Structural Attributes of Environmental Agreements

Number of Agreements
Initial Membership
Type of Initial Obligation
Enforcement Level
14
72
2.7
1.4
36
13
3.4
3.2
In order to learn the extent to which Transformational

agreements have succeeded in inspiring more cooperation among
their members than non-Transformational agreements, we estimated
what we term the "depth of cooperation" that has occurred to date.
Depth of cooperation is a measure of the extent to which member
states have altered their treaty-related behavior since they became
parties to the treaty. 127 It is estimated on a simple Likert-scale that
ranges from 1 to 5. A coding of 1 is assigned to those multilateral
agreements whose members' behavior along the regulated dimension
is virtually the same as it was when the treaty was originally signed; a
coding of 5 is assigned to those multilaterals whose members'
behavior is dramatically different from their pre-treaty behavior. A
12
description of the coding rules appears at Appendix B. 1
127. Obviously, "depth of cooperation" or any such indicator has a host of limitations.
Apart from the limitations imposed by an ordinal scale, there is no guarantee that a deeper
treaty is necessarily more effective than a shallow one since some problems vary in the extent
to which they require behavioral change in order to be ameliorated. More importantly, we
have no accurate way of estimating the counterfactual (i.e., what portion of the change in
behavior would have occurred in the absence of the treaty). While it is important to be aware
of these shortcomings, there are reasons for believing that each is less serious for our
purposes that it might be in other contexts. The ordinality of the indicator is relatively
unimportant because our analysis is limited to the simple question of whether on average
Transformational agreements have produced deeper cooperation than have nonTransformational ones. Regardless of the lack of theoretical certainty about the correlation
between effectiveness and cooperative depth, there is every reason to believe that it is
positive and that depth of cooperation is important in its own right: we care about the extent
to which agreements can motivate states to change their behavior because there are a host of
problems that require states to alter significantly their behavior (e.g., global warming, land
mine proliferation).
The lack of a reliable estimate of the counterfactual is the most significant
limitation of our measure, but it will not affect comparisons between Transformational and
other types of agreements unless there is reason to fear that the phenomena regulated by
Transformational agreements would be systematically affected differently than would other
treaties by exogenous, historical forces once they are created. If there are no such reasons,
we expect the effects of such forces on different types of agreements would effectively cancel
out: that is, because these forces have roughly the same impact on all types of treaties, they
have no net effect on a comparison of the two types of treaties.
128. Each treaty was coded independently by two or more graduate students. They were
instructed to base their coding decisions on published analyses of the agreements in the
2000]
Table 2: Depth of Cooperation Today Comparison

All Ote
Trnfrio
Median depth of cooperation
)2.4
1.8
Table 2 reveals that as a group, the median cooperative depth

score for Transformational agreements is 1.8, while the average nonTransformational agreement has a depth of 2.4., or 33% deeper.
From a substantive standpoint, this means that the average
Transformational agreement led fewer than 20% of member states to
alter their pre-treaty behavior significantly. More revealing is the
distribution of the treaties on the scale depicted in Table 3. It shows
that four of the fourteen Transformational treaties did not result in
their member states significantly altering their pre-treaty behavior;
nine produced little change in member's behavior; and only one led to
a change classified as moderate. This appears to suggest that the
evolutionary impact of the Transformational agreements in
transforming states' environmental behavior has been extremely
modest, and it serves to increase our concern about the foundations of
the Transformational Approach.
Table 3: Distribution of Depth of Cooperation among
Transformational Agreements
D
e"of Cori
Status Quo
Little Depth
Moderate Depth
Agee..
4
9
1
international law and international relations literatures. Clearly, this coding methodology
summarizes rather than improves upon the rough approximations in the literature and does
not begin to meet the standards of the elaborate studies that are beginning to appear in
economics. See, e.g., James C. Murdoch & Todd Sandler, The Voluntary Provision of a Pure
Public Good: The Case of Reduced CFC Emissions and the Montreal Protocol,63 J. PUB.
ECON. 331 (1997). Nevertheless, it is our view that such a "rough and ready" approach
allows us to take advantage of a qualitatively rich literature that provides an informative if
crude first-cut at a problem that cannot be rigorously addressed with any kind of breadth for
another decade.
COLUMBIA JOURATAL OFTRANSNATIONAL LAW
[38:465
Table 4 depicts the same distribution of depth of cooperation

scores for the 36 non-Transformational agreements. Their median
depth of 2.4 is significantly different from the Transformational
treaties at the .05 level. Whereas only one (or 7%) of the
Transformational multilaterals achieved a depth score of moderate or
higher, 10 (or 28%) of the non-Transformational agreements have
done so. Moreover, 20% of all other agreements were given a depth
score of high, whereas not one of the Transformation Agreements
received this score. Whether we employ an absolute or a comparative
standard, there is no indication that regimes designed along
Transformational principles create an evolutionary dynamic that gives
rise to more deeply cooperative regulatory regimes, and there seems
to be some suggestive
evidence that there may be other approaches
129
that do better.
Table 4: Distribution of Depth of Cooperation among All
Other Agreements
Status Quo
Little Depth
Moderate Depth
High Depth
11
8
10
7
It is important not to infer too much from these results. As we

have already noted, they are based solely on an estimate of the extent
to which state behavior has changed in the years following passage of
an agreement and the quality of this estimate varies with the quality of
the published studies. It also says nothing about the total benefits
generated by a given agreement. It is possible that some of the larger,
more shallow Transformational agreements may generate more total
environmental benefit than some of the deeper, non-Transformational
agreements. Nonetheless, the results do suggest the need for a
reexamination of the common presumptions that the Transformational
strategy reliably leads to ever greater levels of environmental
cooperation over time and is the only sensible approach to regime
design.
129. Transformationalists often claim that universal participation is necessary in a

multilateral's early stages because states will not subsequently join a regime that they did not
take part in creating. The experience of the multilaterals included in this data set does not
substantiate this. The average non-Transformational regime more than doubled its original
membership in the years following its formation.
2000]
VII.
507
CONCLUSION
The Transformational model represents an important

contribution to the infant craft of regime design. Its emphasis on the
transforming power of collective deliberation is intuitively appealing
and its design prescriptions are internally consistent given its
assumptions. If collective deliberation and intraregime information
can reliably transform state preferences so that even relatively
regressive states find themselves increasingly committed to ever
deeper levels of international cooperation, it makes good sense to be
as inclusive as possible. Membership restrictions would only lessen
the aggregate amount of cooperation in the system with no
concomitant advantage. Further, it is modest initial commitments and
negotiated conflict management, rather than coercive enforcement
measures, that would operate to prevent states from thinking that the
costs associated with membership outweigh the prospective
advantages.
Notwithstanding its internal consistency and normative
attractiveness, however, the Transformational theory suffers from a
number of inherent problems. At the microfoundational level, the
assumption that the horizontal interaction that generates value
changes at the small-group level will operate in the same way and to
the same extent at the state level ignores the many differences
between the two. The representatives of states who negotiate
agreements are acting as agents of governments, not as individuals,
and they rarely have the authority and the autonomy to alter state
policy in response to a personal transformation. Rather, they are
embedded in an elaborate bureaucratic and political process designed
to ensure oversight and due process. This is especially true in the
modem democracies that are often in the vanguard for cooperation.
We have also seen that while horizontal, interaction-based
identity convergence is an important part of constructivist theory, it is
not the only constructivist process that is believed to lead to statelevel preference change. Another is characterized in what Harold
Hongju Koh calls Transnational Legal Process theory. It is equally
descriptive and well grounded in constructivist theory, but its
emphasis on vertical integration via the operation of multiple agents
operating in multiple institutions suggests that the details of an
international institution may play a small role in determining the
impact of constructivist processes at the state level.
When one takes into account the various nonconstructivist
sources of state preference change, the case for the general
[38:465
applicability of the four Transformational design principles becomes

weaker still. Relative price changes and other economic changes
often operate to promote deeper cooperation by altering state
preferences, but they tend to affect different states at different times.
Under these conditions the maximum amount of cooperation is likely
to be achieved through the creation of a noninclusive regime that
contains a majority of the most cooperatively progressive states.
Such regimes tend to establish an initial level of cooperation that is
relatively deep, whereas a more inclusive regime in which the average
state had yet to be affected by a change in economic conditions would
do little or nothing. Over time, as states outside the regime are also
affected by the economic change, they can apply for membership.
The classic example of such an institution is the European
Union. It took years for Britain to recognize the benefits of closer
economic cooperation with Germany and France. When Britain did
have a change of heart, it had more to do with its recognition of the
mounting cost of forgone trade diverted from it to its EC competitiors
than with a sudden conversion to an ideology of a united Europe.
Had France and Germany included Britain in the original Coal and
Steel Agreement, as Transformatonalism recommends, there is every
reason to believe that nothing would have been gained and many
years of productive cooperation among a subset of European states
would have been sacrificed. Worse, because there would have been
no EC or a much weaker one, Britain may never have supported the
degree of economic cooperation that currently exists.
Our theoretical reservations about the Transformational
strategy were corroborated, at least in a provisional way, by the
empirical record. The case study evidence suggests that there are
instances when the Transformational strategy has yielded
disappointing results and others where different strategies have
performed quite well. More notably, data from fifty environmental
agreements fails to substantiate the central Transformational
hypothesis. The fourteen agreements designed in accordance with
Transformational principles have not, for the most part, experienced a
significant amount of cooperative evolution since they were
instituted. Of greater concern, they even lag behind what has been
achieved by thirty-four non-Transformational agreements.
Thus, there is every indication that while the Transformational
strategy could well be optimal in some contexts, there are others in
which it will not yield all of the benefits that its advocates hope and
still others where its application almost certainly will be counterproductive. The problem is that as things now stand we do not know
which context is which. All too predictably, the current presumption
2000]
509
of the Tranformational design's effectiveness makes research into

conditional effectiveness appear unnecessary. Still less has it inspired
a search for alternative design strategies and guidelines for when they
should be used. This needs to change, not so much because another
theory is obviously superior but because in a world where the good
being regulated and the context in which regulation takes place can
vary enormously, the chances that any one strategy should always be
employed are very low.
[38:465
APPENDIX A:
INTERNATIONAL ENVIRONMENTAL AGREEMENTS ANALYZED
Transformational Agreements
United Nations Convention to Combat Desertification in those
Countries Experiencing Serious Drought and/or Desertification,
Particularly in Africa, adopted June 17, 1994, 1954 U.N.T.S. 3.
Convention on Biological Diversity, June 5, 1992, 31 I.L.M.
822 (1992).
United Nations Framework Convention on Climate Change,
May 9, 1992, S. Treaty Doc. No. 102-38 (1992) 31 I.L.M. 851 (1992).
United Nations Food and Agriculture Organization,
International Code of Conduct on the Distribution and Use of
Pesticides, adopted by FAO Conf. Res. 10/85 (Nov. 28, 1985), (last
<http://www.fao.org/ag/agp/agpp/
11,
1999)
modified Jan.
pesticid/code/ pmscode.htm>.
Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and Their Disposal, adopted Mar.
22, 1989, 28 I.L.M. 6572.
International Tropical Timber Agreement, Nov. 18, 1983,
1393 U.N.T.S. 67.
International Undertaking on Plant Genetic Resources, U.N.
Doc. C/83/REP (1983).
Convention for the Protection and Development of the Marine
Environment of the Wider Caribbean Region, Mar. 24, 1983, T.I.A.S.
No. 11,085, 1506 U.N.T.S. 157.
United Nations Convention on the Law of the Sea, adopted
Dec. 10, 1982, 1833 U.N.T.S. 3.
Convention on Long-Range Transboundary Air Pollution,
adoptedNov. 13, 1979, T.I.A.S. No. 10541, 1302 U.N.T.S. 217.
Conservation of Migratory Species of Wild Animals, June 23,
1979, 1651 U.N.T.S. 333.
Convention on the Prohibition of Military or Any Other
Hostile Use of Environmental Modification Techniques, adopted Dec.
10, 1976, 1108 U.N.T.S. 151.
Convention for the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter, openedfor signatureDec. 29,
1972, 26 U.S.T. 2403, 1046 U.N.T.S. 120.
2000]
Convention on International Trade in Endangered Species of

Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S.
243.
Convention for the Protection of the Mediterranean Sea
Against Pollution, adopted Feb. 16, 1976, 1102 U.N.T.S. 27.
Other Agreements
Protocol on Environmental Protection to the Antarctic Treaty,
Oct. 4, 1991, 30 I.L.M. 1455 (1991).
Convention on Environmental Impact Assessment in a
Transboundary Context, Feb. 25, 1991, 30 I.L.M. 802 (1991).
Convention on Early Notification of a Nuclear Accident,
adopted Sept. 26, 1986, 1439 U.N.T.S. 275.
Convention for the Protection of the Natural Resources and
Environment of the South Pacific Region, Nov. 24, 1986, 26 I.L.M.
41(1987).
Montreal Protocol on Substances That Deplete the Ozone
Layer, opened for signature Sept. 16, 1987, 1522 U.N.T.S. 3, 26
I.L.M. 1550 (1987).
Vienna Convention for the Protection of the Ozone Layer,
opened for signature Mar. 22, 1985, T.I.A.S. No. 11,097, 1513
U.N.T.S. 293.
Convention on the Conservation of Antarctic Seals, June 1,
1972, 29 U.S.T. 441, 1080 U.N.T.S. 175.
Convention on Assistance in the Case of a Nuclear Accident
or Radiological Emergency, adopted Sept. 26, 1986, 1457 U.N.T.S.
133, 25 I.L.M. 1377 (1986).
International Convention for the Protection of Birds, Oct. 18,
1950, 638 U.N.T.S. 185.
Association of South East Asian Nations (ASEAN)
Agreement on the Conservation of Nature and Natural Resources, 15
ENVT'L POL'Y & L. 64, 68 (1985).
Memorandum of Understanding on Port State Control in
Implementing Agreements on Maritime Safety and Protection of the
Marine Environment, Jan. 26, 1982, 21 I.L.M. 1 (1982).
Convention on the Conservation of European Wildlife and
Natural Habitats, Sept. 19, 1979, 1284 U.N.T.S. 209.
Convention for the Conservation of Salmon in the North
Atlantic, Mar. 2, 1982, T.I.A.S. No. 10,789, 1338 U.N.T.S. 33.
[38:465
Convention for the Conservation and Management of the

Vicuna, Dec. 29, 1979, reprintedin UNITED NATIONS ENVIRONMENT
PROGRAMME, 2 SELECTED MULTILATERAL TREATIES IN THE FIELD OF
THE ENVIRONMENT 74 (Iwona Rummel-Bulska & Seth Osafo, eds.,
1991).
Convention on Future Multilateral Co-operation in NorthEast Atlantic Fisheries, Nov. 18, 1980, 1285 U.N.T.S. 129.
Convention on the Conservation of Antarctic Marine Living
Resources, May 20, 1980, 33 U.S.T. 3476, 1329 U.N.T.S. 47.
Treaty for Amazonian Co-operation, July 3, 1978, 1202
U.N.T.S. 51.
Organization for Economic Co-operation and Development,
Council Recommendation on Principles Concerning Transfrontier
Pollution, Nov. 14, 1974, 14 I.L.M. 242 (1975).
Convention on the Protection of the Environment Between
Denmark, Finland, Norway, and Sweden, Feb. 19, 1974, 13 I.L.M.
591 (1974).
Convention on the Protection of the Marine Environment of
the Baltic Sea Area, Mar. 22, 1974, 1507 U.N.T.S. 166.
European Convention for the Prevention of Marine Pollution
from Land-Based Sources, adoptedFeb. 21, 1974, 13 I.L.M. 352.
Agreement on the Conservation of Polar Bears, Nov. 15,
1973, 27 U.S.T. 3918, 13 I.L.M. 13 (1974).
Convention for the Prevention of Marine Pollution by
Dumping from Ships and Aircraft, Feb. 15, 1972, 932 U.N.T.S. 3.
Convention for the Protection of the World Cultural and
Natural Heritage, adopted Nov. 16, 1972, 27 U.S.T. 37, 1037
U.N.T.S. 151.
Convention on Wetlands of International Importance,
Especially as Waterfowl Habitat, Feb. 2, 1971, T.I.A.S. No. 11,084,
996 U.N.T.S. 245.
International Convention on Civil Liability for Oil Pollution
Damage, Nov. 29, 1969, 973 U.N.T.S. 3.
African Convention on the Conservation of Nature and
Natural Resources, Sept. 15, 1968, 1001 U.N.T.S. 3.
International Convention for the Conservation of Atlantic
Tunas, May 14, 1966, 20 U.S.T. 2887, 673 U.N.T.S. 63.
Interim Convention on the Conservation of North Pacific Fur
Seals, Feb. 9, 1957, 314 U.N.T.S. 105.
International Convention for the Regulation of Whaling, Dec.
2000]
513
2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72.

Convention on Nature Protection and Wild Life Preservation
in the Western Hemisphere, Oct. 21, 1940, 56 Stat. 1354, 161
U.N.T.S. 229.
COLUMBIA JOURNAL OF TRANSNATIONAL L.4W
[38:465
APPENDIX B: DEPTH CODING RULES

I
Dept
Mesr
Toda
Vau
Status quo
Little depth
Moderate depth
High depth
Very high depth
Decito
No change in the status quo

behavior of member states.
Behavior of minority of member
states (e.g. 20%) is significantly
but not substantially different
from the pre-treaty status quo (or
the pre-treaty trajectory).
Behavior of the majority of
member states (e.g. over 50%) is
significantly but not substantially
different from the pre-treaty status
quo or the behavior of a minority
of member states (e.g. 20%) is
substantially different from the
pre-treaty status quo (or the pretreaty trajectory).
Behavior of most member states
(e.g.
80%) is significantly
quo (or pre-treaty trajectory) or
the behavior of the majority of
member states (e.g. 50%) is
substantially different from the
pre-treaty status quo (or the pretreaty trajectory).
Behavior of all member states
(e.g. 100%) is significantly
quo (or pre-treaty trajectory) or
the behavior of most member
states (e.g. 80%) is substantially
quo (or the pre-treaty trajectory).

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& PETER N. BARsOOM***

International legal scholars have grown increasingly

COLUMBIA JOURNAL OF TRANSNATIONAL LA W

In this essay the authors argue that, while the

DESIGN STRATEGY ................................................................

EVIDENCE FROM A SURVEY OF ENVIRONMENTAL TREATIES .503

TRANSFORMATIONAL MODEL OFREGIME DESIGN

The Kyoto Protocol to the United Nations Framework

COLUMBIA JOURNAL OFTRANSNATIONAL LAW

We will argue that the elevation of Transformationalism from

TRANSFORMATIONAL MODEL OFREGIME DESIGN

THE TRANSFORMATIONAL APPROACH

One salutory aspect of the shift from studying individual

COLUMBIA JOURNAL OF TRANSNATIONAL LAW

Examining regimes rather than individual accords not only

TRANSFORMATIONAL MODEL OFREGIME DESIGN

One of the major intellectual products of this new orientation

COLUMBIA JOURNAL OF TRANSNATIONAL LAW

persuading the parties to move toward increasing compliance with

Entry into Membership

The first important element of the Transformational process

13. CHAYES & CHAYES, supra note 2, at 229.

TRANSFORMATIONAL MODEL OFREGIME DESIGN

early on to help create the conditions that make strong

COLUMBIA JOURNAL OF TRANSNATIONAL LAW

are downplayed: "It is the authoritativeness of regime rules and

The production and diffusion of information is the second

TRANSFORMATIONAL MODEL OFREGIME DESIGN

the political power of epistemic communities by exposing diplomats

Iterations of Collective Deliberation

Transformationalists emphasize in particular the third

COLUMBIA JOURNAL OF TRANSNATIONAL LAW

The details of the process by which collective deliberation

TRANSFORMATIONAL MODEL OFREGIME DESIGN

Curiously, there is far more consensus regarding the basic

Number ofMembers: Maximize Inclusion

For advocates of the Transformational

COLUMBIA JOURNAL OF TRANSNATIONAL LAW

fall membership of the international community. As with any social

InitialObligations:Establish Only Soft and Unthreatening

TRANSFORMATIONAL MODEL OFREGIME DESIGN

that "as a rule, it does not contain specific obligations, such as

COLUMBIA JOURNAL OF TRANSNATIONAL LA W

evidence" exists that soft law declarations such as the Stockholm

Not only softness, the Transformationalists contend, but also

The Transformationalists emphasize the principle of near

(discussing the "functions of non-legal rules").

TRANSFORMATIONAL MODEL OFREGIME DESIGN

and the regime as an agent of socialization demands it. On the first

COLUMBIA JOURNAL OF TRANSNATIONAL LAW

Compliance Control:Manage Rather Than Enforce

Another pillar of the Transformational Approach to regime

LEGITIMACY AMONG NATIONS, supra note 37.

TRANSFORMATIONAL MODEL OFREGIME DESIGN

interpretation and resulting state behavior.61 The second is the

61. See CHAYES & CHAYES, supra note 2, at 10-12.

COLUMBIA JOURNAL OF TRANSNATIONAL LA

Advocates of the Transformational Approach level similar

By contrast, the dispute settlement

procedure-another formal instrument of enforcement-is built into