An article by Jean Galbraith in the Virginia Journal of International Law (Treaty Options: Towards a Behavioral Understanding of Treaty Design) should be compulsory reading for anyone involved in the negotiations on a new climate change agreement.
Professor Galbraith demonstrates convincingly that legal form matters, often more than substance, and that states do not act rationally when negotiating and ratifying treaties.
Her findings have profound implications for the current climate change negotiations.
The findings will benefit from further discussion and analysis – Professor Galbraith urges further research – and it is not clear that all findings are directly applicable to the climate change negotiations, but her research makes a powerful case for considering “cognitive biases” when defining the legal architecture of the 2015 climate change agreement.
Galbraith’s findings suggest how an issue is “packaged” legally plays a decisive role in its chances of success (Pic: UNFCCC)
The Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) was established under the UN Framework Convention on Climate Change (UNFCCC) in 2011.
The ADP negotiations are meant to result in “… a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties …”. The new agreement is to be concluded by 2015 and come into force and be implemented from 2020.
The core purpose of the ADP negotiations is to reach agreement on how to slow climate change to a level where its impacts can be managed, an increasingly urgent and challenging task. An important part of the negotiations involves agreeing on the legal architecture of the new agreement. For example, what should be legally binding?
The debate about the legal form of the future agreement reflected in the final formulation“… a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties …” adopted in Durban, South Africa, in 2011 already showed that form matters. Professor Galbraith’s findings about the importance of form take this much further.
Rational actors?
Research in the areas of cognitive psychology and behavioural economics has shown that people often deviate, in a way that can be predicted, from rational behaviour.
For example, a study has shown judges approving a much higher number of requests for parole after the judges had lunch or a snack. It appears that states also display non-rational behaviours when negotiating and ratifying treaties.
Professor Galbraith’s findings have significant implications for the design of the new climate change agreement. She demonstrates that the “rational choice” model assumed by most treaty researchers and analysts to apply to treaty negotiation and ratification does not hold up under scrutiny.
Instead, insights from behavioural economics and understanding of cognitive biases offer better explanations.
How an issue is “packaged” legally plays a decisive role.
Form over substance
Professor Galbraith examined reservations and options in international treaties that allow states to vary their level of commitment, such as “opt-in” and “opt-out” provisions. She concludes that “… choice of form matters, and matters enormously”.
For example, where treaties contained an opt-in clause which allows states to choose to accept the jurisdiction of the International Court of Justice (ICJ) in relation to disputes under the treaty only a small percentage of stated had done so (this includes the UNFCCC, where only the Netherlands has opted in).
Where treaties contained an opt-out clause that allows them to choose not to accept ICJ jurisdiction 80% continued to accept it.
Professor Galbraith’s review of human rights treaties shows that for the most part states join optional protocols at much higher rates than they join opt-in clauses contained in the main treaty itself.
Even taking other possible factors into account the research suggests strongly that the substance of the option matters less than the framing or “packaging”. An active choice to opt in to ICJ jurisdiction seems less attractive than accepting it passively by not choosing to opt out.
Biased decision making
The findings are not easily compatible with a rational choice model. “Choice architecture” appears to be a more relevant framework.
Drawing on research related to choice architecture Professor Galbraith considers factors that may influence treaty-related choices.
For example, studies have shown that people tend to favour any option that is presented as the status quo or default. Another example is “salience bias”: if people fill out surveys about overdraft fees they are less likely to incur such fees in the following months.
Such biases align well as an explanation for the findings of Professor Galbraith’s research. She also explores why states may display similar behaviours when negotiating and ratifying treaties.
Implications
Professor Galbraith’s suggestions include that negotiators who are interested in robust treaties should avoid opt-in clauses and instead use opt-out clauses or rely on traditional reservations, or as a final fall-back choose optional protocols.
Professor Galbraith emphasizes that the broader implications for regime design that she identifies, including those mentioned below, require understanding of what biases states are subject to and in what kinds of situations, which raises highly complex and context dependent questions.
Professor Galbraith suggests that choice architecture principles may provide support for structuring international agreements as pledges, rather than contracts.
In the climate change context the inadequate emission reduction pledges made to date under the UNFCCC could fail to inspire confidence in this option.
Other implications of the research presented in the article relate to for example compliance, withdrawal options and reporting.