The Market for Treaties

Abstract Corporations are consumers of treaty law. In this Article, I empirically examine three biodiversity treaty regimes-the Convention on Biological Diversity, Ramsar Convention, and World Heritage Convention-to demonstrate that corporations implement or internalize treaty norms in a variety of ways that are not captured by the dominant model of treaty implementation-national implementation. As an exegetical model, I explore how corporations use biodiversity treaties as a source of private environmental standards. I focus on the interactions between mining and oil and gas companies and biodiversity treaties, as revealed through transactional documents, corporate reports, security law filings, and treaty secretariat reports. My central claim is that treaties provide a vital, but overlooked, point of interaction between intergovernmental environmental law and transnational law as developed by private actors. This article reveals that the gravitational pull of treaties on private actors is differentially experienced. The shadow of law (both national and international) works variably across different companies, different industries and different geographies. And the same companies that are 'dumbing down' treaty meanings in one context may be advancing tools that promote stronger and deeper implementation of these same treaty norms in another. While the empirical record is thus littered with inconsistencies and seeming contractions, one thing is clear: the implications of corporate channelling of treaty meanings and obligations are significant for international law far beyond the context of biodiversity conventions. Growing pressure to define acceptable standards of environmental and social behavior for companies is creating a robust market for "international standards"-a market for treaties. I. INTRODUCTION Pick up a textbook on international environmental law and you will quickly enter into a world where the treaty is king.1 Flip through the pages of any recent article on "new governance" or "private environmental governance," however, and a radically different picture emerges - one of a world marked by "the failure of international 'Old Governance'"2 and a future where private forms of international law-making stand poised to displace traditional international law, including treaties. Exit the treaty, wither the state, and enter the age of regulatory networks, public-private partnerships, and corporate codes of conduct. The very language of "Old Governance" and "New Governance" suggests a model where legal instruments occupy competing, parallel and distinct spaces. It also implies that scholars have been busy staking territory and drawing lines. This new grammar of governance implies that a choice is to be made between treaties and private law initiatives. And it comes with a threat attached - that "international law could be ineffective, obsolete and inconsequential as corporations become subject to a distinct body of rules." This Article will clarify theoretical concepts that are not apparent in a model that presumes international law and private governance initiatives compete in a zero sum game. I argue that treaties provide a vital, but overlooked, point of interaction between intergovernmental environmental law and transnational environmental law as developed significandy by private sector actors.4 As an exegetical model, I will examine how corporations use biodiversity treaties as sources of private environmental standards. More specifically, I will focus on interactions between mining and oil and gas companies and the World Heritage Convention,5 Ramsar Convention,6 and Convention on Biological Diversity.7 Based on empirical evidence collected from corporate reports, security law filings, and transactional documents, I demonstrate that corporations implement or internalize treaty norms in a variety of ways that are not captured by the dominant model of treaty implementation - national implementation. …