APPROACHING APPROACHING INTERNATIONAL INTERNATIONAL

ENVIRONMENTAL ENVIRONMENTAL NEGOTIATION AS A NEGOTIATION AS A

GOVERNANCE PROCESSGOVERNANCE PROCESS

ByBy

Evangelos RaftopoulosEvangelos Raftopoulos

11stst COST TRAINING SCHOOL ON INTERNATIONAL COST TRAINING SCHOOL ON INTERNATIONAL ENVIRONMENTAL NEGOTIATION AS A GOVERNANCE PROCESSENVIRONMENTAL NEGOTIATION AS A GOVERNANCE PROCESS

(MEPIELAN CENTRE, 23-27 November 2009, Athens, Greece)(MEPIELAN CENTRE, 23-27 November 2009, Athens, Greece)

INTRODUCTORY REMARKSINTRODUCTORY REMARKS

THE CONTEXT OF INTERNATIONAL THE CONTEXT OF INTERNATIONAL NEGOTIATING PROCESSNEGOTIATING PROCESS

The Nature of international SocietyThe Nature of international SocietyThe Nature of International OrderThe Nature of International Order

THE NATURE OF INTERNATIONAL THE NATURE OF INTERNATIONAL NEGOTIATING PROCESSNEGOTIATING PROCESS

The inadequacy of positivistic approaches and The inadequacy of positivistic approaches and logiclogic

A structured process of preparing, constituting A structured process of preparing, constituting and developing international regime-relations and developing international regime-relations of common interest (negotiation as of common interest (negotiation as governance)governance)

PRE-NEGOTIATION AS A PROCESS PRE-NEGOTIATION AS A PROCESS OF TRANSFORMATIVE OF TRANSFORMATIVE GOVERNANCEGOVERNANCE THE LEVEL OF DIAGNOSTIC GOVERNANCETHE LEVEL OF DIAGNOSTIC GOVERNANCE

ISSUE IDENTIFICATIONISSUE IDENTIFICATION

Issue Identification prior to any actual negotiation is Issue Identification prior to any actual negotiation is criticalcritical ElementsElements

Description/Identification of causes, extent and Description/Identification of causes, extent and scope (potential) of environmental problemscope (potential) of environmental problem

Evaluation of multi-factor importance of Evaluation of multi-factor importance of environmental problem and its effectsenvironmental problem and its effectsAssessment of the state of scientific knowledge Assessment of the state of scientific knowledge

InstrumentationInstrumentationUse of objective indicators (a problem-oriented Use of objective indicators (a problem-oriented

approachapproachManaging uncertainties of scienceManaging uncertainties of scienceA Scientific ReportA Scientific Report

RELATIONAL IDENTIFICATIONRELATIONAL IDENTIFICATION

Identification of Relational OrderIdentification of Relational OrderContextual ReferenceContextual ReferenceContextual ConsistencyContextual ConsistencyAn Added Value ApproachAn Added Value Approach

Identification of Relational ConductIdentification of Relational ConductThe Structuring of the Negotiating TeamThe Structuring of the Negotiating Team

The Evaluation of Best AlternativesThe Evaluation of Best Alternatives

The Participants/Role Diagnostic ModelThe Participants/Role Diagnostic Modelo ParticipantsParticipantso SubjectivitiesSubjectivitieso PlatformsPlatformso Bases of PowerBases of Powero Modalities/StrategiesModalities/Strategieso Outcomes - ResultsOutcomes - Results

THE LEVEL OF MULTILATERAL THE LEVEL OF MULTILATERAL GOVERNANCEGOVERNANCE• The beginning of a structured textual negotiating processThe beginning of a structured textual negotiating process InitiationInitiation By a State, by an IGOBy a State, by an IGO The crucial role of the InitiatorThe crucial role of the Initiator Preparing and Convening an Preparing and Convening an Ad HocAd Hoc Multilateral Multilateral

Environmental ConferenceEnvironmental Conference The Preparatory ConferenceThe Preparatory Conference The Ministerial ConferenceThe Ministerial Conference AdvantagesAdvantages

Sufficiently integrative, specialized and Sufficiently integrative, specialized and adequately politicaladequately political

Generates a collective Generates a collective declaration/resolution/strategy with certain declaration/resolution/strategy with certain heuristic powerheuristic power

Opportunity of dialectical learning and Opportunity of dialectical learning and appropriate communication flow appropriate communication flow

Techniques Techniques

The Procedural Aspect: The Drafting of the AgendaThe Procedural Aspect: The Drafting of the AgendaThe Purpose of the ConferenceThe Purpose of the ConferenceThe Plan of the ConferenceThe Plan of the ConferenceThe Pace of the ConferenceThe Pace of the ConferenceThe Personalities of the Participants The Personalities of the Participants

(MASLOW Climax of Human Needs)(MASLOW Climax of Human Needs)

The Language FactorThe Language Factor The Substantive Aspect: The Preparation of a Draft The Substantive Aspect: The Preparation of a Draft

Declaration/Resolution/StrategyDeclaration/Resolution/StrategyDrafting a Supporting ReportDrafting a Supporting ReportDrafting a Declaration/Resolution/StrategyDrafting a Declaration/Resolution/Strategy

NEGOTIATION AS A PROCESS OF NEGOTIATION AS A PROCESS OF CONSTITUTIVE GOVERNANCE CONSTITUTIVE GOVERNANCE• A A process of establishing a conventional environmental governance process of establishing a conventional environmental governance

regimeregime• A process of enhancing an existing conventional environmental A process of enhancing an existing conventional environmental

governance regime through new related/performative Protocolsgovernance regime through new related/performative Protocols• The transcendence from transformative to constitutive environmental The transcendence from transformative to constitutive environmental

governance is non-linear and context-dependentgovernance is non-linear and context-dependent

INITIATIONINITIATION• Distinct Political InitiativeDistinct Political Initiative Multilateral ActionMultilateral Action

By a Group of States, usually in cooperation with a By a Group of States, usually in cooperation with a competent IGOcompetent IGO

Set up an Set up an Ad HocAd Hoc Working Group of Legal and Technical Working Group of Legal and Technical ExpertsExperts

Relational Action Relational Action By a Competent IGO in cooperation with States and By a Competent IGO in cooperation with States and

other IGOsother IGOs Set up an Set up an Ad HocAd Hoc Working Group of Legal and Technical Working Group of Legal and Technical

Experts or an Intergovernmental Negotiating CommitteeExperts or an Intergovernmental Negotiating Committee

Combined Relational and Multilateral ActionsCombined Relational and Multilateral Actions

the UNEP example in the Barcelona Convention systemthe UNEP example in the Barcelona Convention system Regime ActionRegime Action

Mandate by MOP to the Secretariat to convene and Mandate by MOP to the Secretariat to convene and coordinate an coordinate an Ad HocAd Hoc Working Group of Legal and Working Group of Legal and Technical Experts to negotiate the possibility of a new Technical Experts to negotiate the possibility of a new ProtocolProtocol

• Organizational InitiativeOrganizational Initiative Establishment of an Establishment of an Ad HocAd Hoc Secretariat assigned important Secretariat assigned important

administrative and creative roleadministrative and creative role

Organizes and convenes the Organizes and convenes the Ad HocAd Hoc Meetings of Working Meetings of Working Group of Legal & Technical ExpertsGroup of Legal & Technical Experts

Assists the Negotiating Parties Assists the Negotiating Parties Prepares a Report and the Text of the Proposed First Draft Prepares a Report and the Text of the Proposed First Draft

of the conventional instrument on the Proposed of the conventional instrument on the Proposed AmendmentsAmendments

Facilitates the development of a single negotiating text Facilitates the development of a single negotiating text Formulates compilations texts and package texts, thus Formulates compilations texts and package texts, thus

emerging as a central contact pointemerging as a central contact pointCommunicates the Draft Convention adopted by the Communicates the Draft Convention adopted by the Ad HocAd Hoc

Meeting to the MOP/COPMeeting to the MOP/COPConvenes a special negotiating forum, the Conference of Convenes a special negotiating forum, the Conference of

Plenipotentiaries, for the adoption and signature Plenipotentiaries, for the adoption and signature

Participation of Non-State Actors in the Constitutive Participation of Non-State Actors in the Constitutive Negotiating ProcessNegotiating Process

The negotiating system should be set up to clarify the The negotiating system should be set up to clarify the roles of Non-State Actors in the negotiating processroles of Non-State Actors in the negotiating process

Explicit Determination of their statusExplicit Determination of their statusDetermination of Criterias for their participationDetermination of Criterias for their participationTheir competence may be extended only to areas in Their competence may be extended only to areas in

which they have technical, legal, social, local expertisewhich they have technical, legal, social, local expertise

TEXTUAL AND CONTEXTUAL ASPECTS OF TEXTUAL AND CONTEXTUAL ASPECTS OF NEGOTIATION AS CONSTITUTIVE GOVERNANCENEGOTIATION AS CONSTITUTIVE GOVERNANCE

CONTEXT IDENTIFICATIONCONTEXT IDENTIFICATION• The negotiation of a prospective conventional environmental The negotiation of a prospective conventional environmental

regime has an important relational dimension: it is directly regime has an important relational dimension: it is directly related to the horizontal international order-in-processrelated to the horizontal international order-in-process

• Textual negotiation takes place in contextTextual negotiation takes place in context Three interrelated criteria:Three interrelated criteria:

Contextual referenceContextual reference Contextual consistencyContextual consistency Added Value ApproachAdded Value Approach

The Knowledge ContextThe Knowledge Context

A positivist view of science? A positivist view of science? A relational, balancing approach to scientific, legal and policy A relational, balancing approach to scientific, legal and policy

considerations for the negotiated establishment and effective considerations for the negotiated establishment and effective operation of conventional environmental regimesoperation of conventional environmental regimes

Indicators of integration of scientific knowledge and Indicators of integration of scientific knowledge and considerations into the pattern of conventional environmental considerations into the pattern of conventional environmental regimes at the constitutive negotiation processregimes at the constitutive negotiation process

o Quality of negotiation forumQuality of negotiation forumo Definitional ElementDefinitional Elemento Incorporation of extensive Technical AnnexesIncorporation of extensive Technical Annexeso Regime-anticipation of process integration of Regime-anticipation of process integration of

scientific findings and standardsscientific findings and standards

The Localized ContextThe Localized Context The Mediterranean aspectThe Mediterranean aspectDeterminants of Region-specific identityDeterminants of Region-specific identity

FORM IDENTIFICATIONFORM IDENTIFICATION

The “Framework Convention – Performative Protocols The “Framework Convention – Performative Protocols in processuin processu” Drafting Technique” Drafting Technique

The integration of ordered and turbulent aspectsThe integration of ordered and turbulent aspectsThe non-linear developmentThe non-linear developmentThe context-dependenceThe context-dependenceThe irreducibility and irreversibilityThe irreducibility and irreversibility

PATTERN IDENTIFICATIONPATTERN IDENTIFICATION The PreambleThe Preamble The Definitional ElementThe Definitional Element

Regime-specific termsRegime-specific termsRegime-constative termsRegime-constative termsRegime-performative termsRegime-performative terms

Scope of ApplicationScope of Application Geographical ScopeGeographical Scope ( (Borderline regionality – functional Borderline regionality – functional

regionalityregionality) ) Material ScopeMaterial Scope

THE CONTEXTUALIZING ELEMENTTHE CONTEXTUALIZING ELEMENT

General Standard Causes regarding:General Standard Causes regarding:a)a) The External ContextThe External Context

Inter-regimes relationshipInter-regimes relationship Established Sovereign Power-RightsEstablished Sovereign Power-Rights

b)b) The Intrinsic ContextThe Intrinsic Context Inter-temporal equity, particular structures, Inter-temporal equity, particular structures,

performative principles and standardsperformative principles and standards Framework formulation of regime-specific aspectsFramework formulation of regime-specific aspects Prevalence of stricter national regimes/rulesPrevalence of stricter national regimes/rules THE MANAGEMENT SYSTEMTHE MANAGEMENT SYSTEM

The Cooperative AspectThe Cooperative Aspect Cooperation in env/governance instrumentationCooperation in env/governance instrumentation

Monitoring System, Observation Mechanisms, Monitoring System, Observation Mechanisms, NetworksNetworks

Environmental AssessmentEnvironmental Assessment Economic & Financial Instruments Economic & Financial Instruments Implementing MeasuresImplementing Measures Liability & Compensation regimeLiability & Compensation regime

Cooperation in env/governance agencyCooperation in env/governance agencyCoordination of State Actors at all levelsCoordination of State Actors at all levelsParticipation of Non-State ActorsParticipation of Non-State ActorsIntegration of traditional activities of local Integration of traditional activities of local

communitiescommunities

Cooperation in env/governance of elements, Cooperation in env/governance of elements, activities and rsks specific to the conventional activities and rsks specific to the conventional environmental regimeenvironmental regime

Cooperation in env/governance knowledgeCooperation in env/governance knowledgeScientific and Technical CooperationScientific and Technical CooperationPublic Awareness, Education, ResearchPublic Awareness, Education, Research

The Organic AspectThe Organic Aspect MOPsMOPs /COPs, the Secretariat, the Bureau, Observers/COPs, the Secretariat, the Bureau, Observers The Reconstructive AspectThe Reconstructive Aspect The Amendment ProcedureThe Amendment Procedure

THE ACCOUNTABILITY SYSTEMTHE ACCOUNTABILITY SYSTEM

• A procedural accountabilityA procedural accountability The controlling individualizing aspectThe controlling individualizing aspect

Reporting ProcedureReporting ProcedureCompliance Procedure/MechanismCompliance Procedure/MechanismVerificationVerification

The restorative aspectThe restorative aspectA settlement of disputes clauseA settlement of disputes clause

THE REGIME-OPERATIONAL CLAUSESTHE REGIME-OPERATIONAL CLAUSES Signature, Ratification, Acceptance or Approval, Accession, Signature, Ratification, Acceptance or Approval, Accession,

Entry into ForceEntry into Force Functions of DepositaryFunctions of Depositary Authentic Language TextsAuthentic Language Texts Withdrawal, ReservationsWithdrawal, Reservations Relationship ClausesRelationship Clauses

THE LEVEL OF TECHNIQUE ASPECT OF THE LEVEL OF TECHNIQUE ASPECT OF

CONSTITUTIVE GOVERNANCE CONSTITUTIVE GOVERNANCE Rules of Procedure of the Negotiating ForumRules of Procedure of the Negotiating ForumManaging Actions & TechniquesManaging Actions & Techniques

A ReportA Report on the Instrument to be negotiated on the Instrument to be negotiated Opening StatementsOpening Statements and their basic elements and their basic elements Identification of factorsIdentification of factors that may affect that may affect

draftingdrafting Availability of KnowledgeAvailability of Knowledge in relation to in relation to

provision draftingprovision draftingComplexity of IssuesComplexity of Issues in relation to provision in relation to provision

draftingdraftingSensitivity or relative importanceSensitivity or relative importance of issues in of issues in

relation to provision draftingrelation to provision drafting Textual NegotiationTextual Negotiation moves in stages – moves in stages –

consensus stratification – Adoption of the Draft consensus stratification – Adoption of the Draft Text by the Negotiating Forum – Conference of Text by the Negotiating Forum – Conference of PlenipotentiariesPlenipotentiaries

RENEGOTIATION AS A PROCESS OF RENEGOTIATION AS A PROCESS OF RELATIONAL GOVERNANCERELATIONAL GOVERNANCE

• An autonomous process of governing the self-organization of An autonomous process of governing the self-organization of every conventional environmental regime in context (relational every conventional environmental regime in context (relational governance)governance)

InitiationInitiation By a distinctive regime actionBy a distinctive regime action

Institutional Decision by MOP/COPInstitutional Decision by MOP/COPGeneral Mandate to the Secretariat General Mandate to the Secretariat

OPERATORS OF RELATIONAL GOVERNANCEOPERATORS OF RELATIONAL GOVERNANCE The SecretariatThe Secretariat

Organizes and convenes the Organizes and convenes the Ad HocAd Hoc Meetings of Working Meetings of Working Group of Legal & Technical ExpertsGroup of Legal & Technical Experts

Guides the Negotiating PartiesGuides the Negotiating PartiesPrepares a Report on the Proposed AmendmentsPrepares a Report on the Proposed AmendmentsFacilitates the Amendment Negotiation ProcessFacilitates the Amendment Negotiation ProcessCommunicates the Draft Amendment adopted by the Communicates the Draft Amendment adopted by the Ad Ad

HocHoc Meeting to the MOP/COP Meeting to the MOP/COPConvenes a special negotiating forum, the Conference of Convenes a special negotiating forum, the Conference of

Plenipotentiaries, for the adoption and signature Plenipotentiaries, for the adoption and signature

The Contracting PartiesThe Contracting Parties• Collective function in Relational GovernanceCollective function in Relational Governance

The The Ad HocAd Hoc Meetings of Working Group of Legal & Meetings of Working Group of Legal & Technical Experts (Technical Experts (The Expert and Administrative LevelThe Expert and Administrative Level))

The Diplomatic Conference of Plenipotentiaries (The Diplomatic Conference of Plenipotentiaries (The The Political LevelPolitical Level))

TEXTUAL AND CONTEXTUAL ASPECTS OF TEXTUAL AND CONTEXTUAL ASPECTS OF RENEGOTIATION AS RELATIONAL GOVERNANCERENEGOTIATION AS RELATIONAL GOVERNANCE IDENTIFICATION OF CONTEXTIDENTIFICATION OF CONTEXT

• Knowledge ContextKnowledge Context enhances its impactenhances its impact IDENTIFICATION OF FORMIDENTIFICATION OF FORM

Amendment or Replacement?Amendment or Replacement?Not Not a prioria priori criteria – left to the dynamics of renegotiation criteria – left to the dynamics of renegotiation

processprocessThe decision on replacement requires the support of a The decision on replacement requires the support of a

powerful segment of the Contracting Parties – emerges at powerful segment of the Contracting Parties – emerges at the last stage of renegotiating processthe last stage of renegotiating process

Assessment of ReplacementAssessment of Replacement

In cases of extensive amendments, it indicates a better In cases of extensive amendments, it indicates a better adaptive governance of the conventional environmental adaptive governance of the conventional environmental regimeregime Replacement, instead of amendment, generates a prompt and Replacement, instead of amendment, generates a prompt and

effective entry into force of the amended instrument (as a new effective entry into force of the amended instrument (as a new instrument)instrument)

It is beneficial to the conventional regime because it enhances its It is beneficial to the conventional regime because it enhances its credibility and allows an effective communication of its credibility and allows an effective communication of its developmentdevelopment

It effects an early institutionalized mobilization of all relevant social It effects an early institutionalized mobilization of all relevant social and economic segments of governanceand economic segments of governance

IDENTIFICATION OF PATTERN IDENTIFICATION OF PATTERN The Text Communication Deficit of AmendmentThe Text Communication Deficit of Amendment

TECHNIQUE ASPECTS OF RENEGOTIATION AS TECHNIQUE ASPECTS OF RENEGOTIATION AS RELATIONAL GOVERNANCERELATIONAL GOVERNANCE The Role of the SecretariatThe Role of the Secretariat

The Institutional Duality of the MAP SecretariatThe Institutional Duality of the MAP Secretariat Consensus-Building FacilitatorConsensus-Building Facilitator