APPROACHING INTERNATIONAL ENVIRONMENTAL NEGOTIATION AS A GOVERNANCE PROCESS By Evangelos Raftopoulos 1 st COST TRAINING SCHOOL ON INTERNATIONAL ENVIRONMENTAL NEGOTIATION AS A GOVERNANCE PROCESS (MEPIELAN CENTRE, November 2009, Athens, Greece) (MEPIELAN CENTRE, November 2009, Athens, Greece)

INTRODUCTORY REMARKS  THE CONTEXT OF INTERNATIONAL NEGOTIATING PROCESS  The Nature of international Society  The Nature of International Order  THE NATURE OF INTERNATIONAL NEGOTIATING PROCESS  The inadequacy of positivistic approaches and logic  A structured process of preparing, constituting and developing international regime-relations of common interest (negotiation as governance)

PRE-NEGOTIATION AS A PROCESS OF TRANSFORMATIVE GOVERNANCE  THE LEVEL OF DIAGNOSTIC GOVERNANCE  ISSUE IDENTIFICATION  Issue Identification prior to any actual negotiation is critical  Elements Description/Identification of causes, extent and scope (potential) of environmental problem Description/Identification of causes, extent and scope (potential) of environmental problem Evaluation of multi-factor importance of environmental problem and its effects Evaluation of multi-factor importance of environmental problem and its effects Assessment of the state of scientific knowledge Assessment of the state of scientific knowledge  Instrumentation Use of objective indicators (a problem-oriented approach Use of objective indicators (a problem-oriented approach Managing uncertainties of science Managing uncertainties of science A Scientific Report A Scientific Report

 RELATIONAL IDENTIFICATION  Identification of Relational Order Contextual Reference Contextual Reference Contextual Consistency Contextual Consistency An Added Value Approach An Added Value Approach  Identification of Relational Conduct The Structuring of the Negotiating Team The Structuring of the Negotiating Team The Evaluation of Best Alternatives The Evaluation of Best Alternatives The Participants/Role Diagnostic Model The Participants/Role Diagnostic Model o Participants o Subjectivities o Platforms o Bases of Power o Modalities/Strategies o Outcomes - Results

 THE LEVEL OF MULTILATERAL GOVERNANCE The beginning of a structured textual negotiating process The beginning of a structured textual negotiating process  Initiation  By a State, by an IGO  The crucial role of the Initiator  Preparing and Convening an Ad Hoc Multilateral Environmental Conference  The Preparatory Conference  The Ministerial Conference  Advantages Sufficiently integrative, specialized and adequately political Sufficiently integrative, specialized and adequately political Generates a collective declaration/resolution/strategy with certain heuristic power Generates a collective declaration/resolution/strategy with certain heuristic power Opportunity of dialectical learning and appropriate communication flow Opportunity of dialectical learning and appropriate communication flow

 Techniques  The Procedural Aspect: The Drafting of the Agenda The Purpose of the Conference The Purpose of the Conference The Plan of the Conference The Plan of the Conference The Pace of the Conference The Pace of the Conference The Personalities of the Participants (MASLOW Climax of Human Needs) The Personalities of the Participants (MASLOW Climax of Human Needs)  The Language Factor  The Substantive Aspect: The Preparation of a Draft Declaration/Resolution/Strategy Drafting a Supporting Report Drafting a Supporting Report Drafting a Declaration/Resolution/Strategy Drafting a Declaration/Resolution/Strategy

NEGOTIATION AS A PROCESS OF CONSTITUTIVE GOVERNANCE NEGOTIATION AS A PROCESS OF CONSTITUTIVE GOVERNANCE A process of establishing a conventional environmental governance regime A process of establishing a conventional environmental governance regime A process of enhancing an existing conventional environmental governance regime through new related/performative Protocols A process of enhancing an existing conventional environmental governance regime through new related/performative Protocols The transcendence from transformative to constitutive environmental governance is non-linear and context-dependent The transcendence from transformative to constitutive environmental governance is non-linear and context-dependent  INITIATION Distinct Political Initiative Distinct Political Initiative  Multilateral Action By a Group of States, usually in cooperation with a competent IGO By a Group of States, usually in cooperation with a competent IGO Set up an Ad Hoc Working Group of Legal and Technical Experts Set up an Ad Hoc Working Group of Legal and Technical Experts  Relational Action By a Competent IGO in cooperation with States and other IGOs By a Competent IGO in cooperation with States and other IGOs Set up an Ad Hoc Working Group of Legal and Technical Experts or an Intergovernmental Negotiating Committee Set up an Ad Hoc Working Group of Legal and Technical Experts or an Intergovernmental Negotiating Committee

 Combined Relational and Multilateral Actions the UNEP example in the Barcelona Convention system the UNEP example in the Barcelona Convention system  Regime Action Mandate by MOP to the Secretariat to convene and coordinate an Ad Hoc Working Group of Legal and Technical Experts to negotiate the possibility of a new Protocol Mandate by MOP to the Secretariat to convene and coordinate an Ad Hoc Working Group of Legal and Technical Experts to negotiate the possibility of a new Protocol Organizational InitiativeOrganizational Initiative  Establishment of an Ad Hoc Secretariat assigned important administrative and creative role Organizes and convenes the Ad Hoc Meetings of Working Group of Legal & Technical Experts Organizes and convenes the Ad Hoc Meetings of Working Group of Legal & Technical Experts Assists the Negotiating Parties Assists the Negotiating Parties Prepares a Report and the Text of the Proposed First Draft of the conventional instrument on the Proposed Amendments Prepares a Report and the Text of the Proposed First Draft of the conventional instrument on the Proposed Amendments Facilitates the development of a single negotiating text Facilitates the development of a single negotiating text Formulates compilations texts and package texts, thus emerging as a central contact point Formulates compilations texts and package texts, thus emerging as a central contact point Communicates the Draft Convention adopted by the Ad Hoc Meeting to the MOP/COP Communicates the Draft Convention adopted by the Ad Hoc Meeting to the MOP/COP Convenes a special negotiating forum, the Conference of Plenipotentiaries, for the adoption and signature Convenes a special negotiating forum, the Conference of Plenipotentiaries, for the adoption and signature

 Participation of Non-State Actors in the Constitutive Negotiating Process The negotiating system should be set up to clarify the roles of Non-State Actors in the negotiating process The negotiating system should be set up to clarify the roles of Non-State Actors in the negotiating process Explicit Determination of their status Explicit Determination of their status Determination of Criterias for their participation Determination of Criterias for their participation Their competence may be extended only to areas in which they have technical, legal, social, local expertise Their competence may be extended only to areas in which they have technical, legal, social, local expertise  TEXTUAL AND CONTEXTUAL ASPECTS OF NEGOTIATION AS CONSTITUTIVE GOVERNANCE  CONTEXT IDENTIFICATION The negotiation of a prospective conventional environmental regime has an important relational dimension: it is directly related to the horizontal international order-in-processThe negotiation of a prospective conventional environmental regime has an important relational dimension: it is directly related to the horizontal international order-in-process Textual negotiation takes place in contextTextual negotiation takes place in context  Three interrelated criteria: Contextual reference Contextual reference Contextual consistency Contextual consistency Added Value Approach Added Value Approach

 The Knowledge Context A positivist view of science? A positivist view of science? A relational, balancing approach to scientific, legal and policy considerations for the negotiated establishment and effective operation of conventional environmental regimes A relational, balancing approach to scientific, legal and policy considerations for the negotiated establishment and effective operation of conventional environmental regimes Indicators of integration of scientific knowledge and considerations into the pattern of conventional environmental regimes at the constitutive negotiation process Indicators of integration of scientific knowledge and considerations into the pattern of conventional environmental regimes at the constitutive negotiation process o Quality of negotiation forum o Definitional Element o Incorporation of extensive Technical Annexes o Regime-anticipation of process integration of scientific findings and standards  The Localized Context The Mediterranean aspect The Mediterranean aspect Determinants of Region-specific identity Determinants of Region-specific identity

 FORM IDENTIFICATION  The “Framework Convention – Performative Protocols in processu” Drafting Technique The integration of ordered and turbulent aspects The integration of ordered and turbulent aspects The non-linear development The non-linear development The context-dependence The context-dependence The irreducibility and irreversibility The irreducibility and irreversibility  PATTERN IDENTIFICATION  The Preamble  The Definitional Element Regime-specific terms Regime-specific terms Regime-constative terms Regime-constative terms Regime-performative terms Regime-performative terms  Scope of Application Geographical Scope (Borderline regionality – functional regionality) Geographical Scope (Borderline regionality – functional regionality) Material Scope Material Scope

 THE CONTEXTUALIZING ELEMENT  General Standard Causes regarding: a) The External Context Inter-regimes relationship Inter-regimes relationship Established Sovereign Power-Rights Established Sovereign Power-Rights b) The Intrinsic Context Inter-temporal equity, particular structures, performative principles and standards Inter-temporal equity, particular structures, performative principles and standards Framework formulation of regime-specific aspects Framework formulation of regime-specific aspects Prevalence of stricter national regimes/rules Prevalence of stricter national regimes/rules  THE MANAGEMENT SYSTEM  The Cooperative Aspect  Cooperation in env/governance instrumentation Monitoring System, Observation Mechanisms, Networks Monitoring System, Observation Mechanisms, Networks Environmental Assessment Environmental Assessment Economic & Financial Instruments Economic & Financial Instruments Implementing Measures Implementing Measures Liability & Compensation regime Liability & Compensation regime

 Cooperation in env/governance agency Coordination of State Actors at all levels Coordination of State Actors at all levels Participation of Non-State Actors Participation of Non-State Actors Integration of traditional activities of local communities Integration of traditional activities of local communities  Cooperation in env/governance of elements, activities and rsks specific to the conventional environmental regime  Cooperation in env/governance knowledge Scientific and Technical Cooperation Scientific and Technical Cooperation Public Awareness, Education, Research Public Awareness, Education, Research  The Organic Aspect  MOPs /COPs, the Secretariat, the Bureau, Observers  The Reconstructive Aspect  The Amendment Procedure

 THE ACCOUNTABILITY SYSTEM A procedural accountability A procedural accountability  The controlling individualizing aspect Reporting Procedure Reporting Procedure Compliance Procedure/Mechanism Compliance Procedure/Mechanism Verification Verification  The restorative aspect A settlement of disputes clause A settlement of disputes clause  THE REGIME-OPERATIONAL CLAUSES  Signature, Ratification, Acceptance or Approval, Accession, Entry into Force  Functions of Depositary  Authentic Language Texts  Withdrawal, Reservations  Relationship Clauses

 THE LEVEL OF TECHNIQUE ASPECT OF CONSTITUTIVE GOVERNANCE  Rules of Procedure of the Negotiating Forum  Managing Actions & Techniques  A Report on the Instrument to be negotiated  Opening Statements and their basic elements  Identification of factors that may affect drafting Availability of Knowledge in relation to provision drafting Availability of Knowledge in relation to provision drafting Complexity of Issues in relation to provision drafting Complexity of Issues in relation to provision drafting Sensitivity or relative importance of issues in relation to provision drafting Sensitivity or relative importance of issues in relation to provision drafting  Textual Negotiation moves in stages – consensus stratification – Adoption of the Draft Text by the Negotiating Forum – Conference of Plenipotentiaries

RENEGOTIATION AS A PROCESS OF RELATIONAL GOVERNANCE An autonomous process of governing the self-organization of every conventional environmental regime in context (relational governance) An autonomous process of governing the self-organization of every conventional environmental regime in context (relational governance)  Initiation  By a distinctive regime action Institutional Decision by MOP/COP Institutional Decision by MOP/COP General Mandate to the Secretariat General Mandate to the Secretariat  OPERATORS OF RELATIONAL GOVERNANCE  The Secretariat Organizes and convenes the Ad Hoc Meetings of Working Group of Legal & Technical Experts Organizes and convenes the Ad Hoc Meetings of Working Group of Legal & Technical Experts Guides the Negotiating Parties Guides the Negotiating Parties Prepares a Report on the Proposed Amendments Prepares a Report on the Proposed Amendments Facilitates the Amendment Negotiation Process Facilitates the Amendment Negotiation Process Communicates the Draft Amendment adopted by the Ad Hoc Meeting to the MOP/COP Communicates the Draft Amendment adopted by the Ad Hoc Meeting to the MOP/COP Convenes a special negotiating forum, the Conference of Plenipotentiaries, for the adoption and signature Convenes a special negotiating forum, the Conference of Plenipotentiaries, for the adoption and signature

 The Contracting Parties Collective function in Relational GovernanceCollective function in Relational Governance The Ad Hoc Meetings of Working Group of Legal & Technical Experts (The Expert and Administrative Level) The Ad Hoc Meetings of Working Group of Legal & Technical Experts (The Expert and Administrative Level) The Diplomatic Conference of Plenipotentiaries (The Political Level) The Diplomatic Conference of Plenipotentiaries (The Political Level)  TEXTUAL AND CONTEXTUAL ASPECTS OF RENEGOTIATION AS RELATIONAL GOVERNANCE  IDENTIFICATION OF CONTEXT Knowledge Context enhances its impact Knowledge Context enhances its impact  IDENTIFICATION OF FORM  Amendment or Replacement? Not a priori criteria – left to the dynamics of renegotiation process Not a priori criteria – left to the dynamics of renegotiation process The decision on replacement requires the support of a powerful segment of the Contracting Parties – emerges at the last stage of renegotiating process The decision on replacement requires the support of a powerful segment of the Contracting Parties – emerges at the last stage of renegotiating process

 Assessment of Replacement  In cases of extensive amendments, it indicates a better adaptive governance of the conventional environmental regime Replacement, instead of amendment, generates a prompt and effective entry into force of the amended instrument (as a new instrument) Replacement, instead of amendment, generates a prompt and effective entry into force of the amended instrument (as a new instrument) It is beneficial to the conventional regime because it enhances its credibility and allows an effective communication of its development It is beneficial to the conventional regime because it enhances its credibility and allows an effective communication of its development It effects an early institutionalized mobilization of all relevant social and economic segments of governance It effects an early institutionalized mobilization of all relevant social and economic segments of governance  IDENTIFICATION OF PATTERN  The Text Communication Deficit of Amendment  TECHNIQUE ASPECTS OF RENEGOTIATION AS RELATIONAL GOVERNANCE  The Role of the Secretariat The Institutional Duality of the MAP Secretariat The Institutional Duality of the MAP Secretariat Consensus-Building Facilitator Consensus-Building Facilitator