The private life of environmental treaties.

The gravitational pull of environmental treaties is felt not only by states. Yet international lawyers almost exclusively focus on states to explain treaty compliance, measure treaty implementation, and assess treaty effectiveness. This essay draws attention to a phenomenon that falls outside traditional boundaries of treaty analysis: the efforts of private corporations that aim at complying with environmental treaties. Existing models of treaty implementation are inadequate to explain these direct interactions between corporations and treaties. (1) The dominant grammar of treaty "compliance" equally fails to fit. (2)

This essay uses a little-studied example--the UNESCO World Heritage Convention (3)--to highlight the phenomenon of corporations' conforming their behavior to environmental treaty requirements. The World Heritage Convention has become a focal point of a growing range of interactions that do not fit the standard interstate model of treaty engagement. Oil and gas and mining companies claim they are performing aspects of this treaty. Banks and insurance companies are imposing requirements of treaty performance on other corporations. The key treaty body, the World Heritage Committee, has also developed ways to interact directly with corporations, including in situations where state actors have been unwilling or unable to regulate behavior within the state's borders. Together, these direct interactions between companies and the World Heritage Convention highlight the need to extend our analysis of environmental treaties in new ways.

The interactions documented in this essay challenge the common assumption that private environmental governance relies on sources distinct from public international law. These interactions also suggest the potential value of pursuing various corporate pressure points as one way to promote the goals of environmental treaties. Corporate claims of treaty performance equally shatter the conception of environmental treaties as purely "top down" lists of "oughts" for state action.

Corporations have long been a blind spot in international legal analysis. Perhaps not surprisingly, then, the phenomenon of claims of treaty performance by corporations has gone generally, if not completely, unnoticed in the legal literature. While international legal scholarship is increasingly attentive to corporations, the current scholarly focus on questions of transnational corporate accountability (4) and corporate standard-setting initiatives (5) may in fact obscure the influence of treaties over corporate behavior. In entrenching a distinction between the largely "soft law" initiatives directed at companies and treaties directed at states, the emerging literature on private environmental governance also misses this interaction between private governance and public international law.

Following this introduction, part I of this essay presents a detailed study of how major mining and oil and gas companies interact with the World Heritage Convention in recognizing World Heritage sites as "no-go" areas: territory off-limits to mining and oil and gas activity. The evidence s...

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