Laura Ivers is a writer for the Earth
Negotiations Bulletin, reporting
primarily on international negotiations.
She is based in New York City.
From issue identification to entry into force - the stages and key players in the development of international conventions
Delegates to the intergovernmental negotiating committee of the Convention on Persistent Organic Pollutants toast the completion of negotiations
- INTERNATIONAL INSTITUTE OF SUSTAINABLE DEVELOPMENT/A. HENRY
An international environmental convention is a legally binding agreement negotiated among governments to take action in concert to combat or mitigate a global environmental threat. Reaching agreement to take such action among sovereign nations with diverse interests is no small feat. However, in recent decades such agreements have proliferated, at the global and regional levels, to address international environmental concerns. How do such conventions come into being?
While the development of any multilateral agreement is a complex process unique to the issue at hand, the interests involved and the circumstances of negotiations, some essential ingredients, key players and common stages that catalyse and guide the political process towards a convention can be identified. This article explores the general stages in the making of a convention from issue identification to entry into force, with a look at the roles of various players and the dynamics of negotiation.
While there is no set easy two-step approach to developing a convention, over the years political scientists have identified the emergence of some basic patterns of stages of development for an international agreement. Awareness of an environmental concern with possible global implications is the initial catalyst for any action, and leads into the general stages of issue definition, fact-finding and bargaining on regime creation (negotiation of the convention). After a convention is in place, measures to strengthen the commitments in the convention may be necessary; this stage is often referred to as "regime strengthening".
During the issue definition stage, efforts to investigate the potential environmental concern and to improve the body of available information on the topic are required to assess the potential impact and risks to the environment, to understand the source of the issue and to determine what possible action is needed to mitigate the problem. In the subsequent fact-finding stage, consensus building takes place on the nature of the issue and on the most appropriate international approach to solving the problem through an international effort to investigate the science, ecology and economics surrounding the issue. If deemed appropriate, and if adequate political will to take action exists, the fact-finding stage can lead into the stage of bargaining (negotiation) to reach agreement on international action to be taken (Porter, Brown and Chasek, 2000).
In most cases, an intergovernmental negotiating committee (INC) is established to facilitate this process. Negotiation of an international convention generally takes a few years and sometimes longer (20 years in the case of the United Nations Conference on the Law of the Sea, for example), with regime strengthening through protocols or other measures occurring at a later date. The process of negotiation is normally supported by the work of a secretariat, which produces the documents to guide negotiations. The politics, including the development of country coalitions and posturing, are explored in more detail in the subsection "At the negotiating table" on p. 19.
After negotiations are completed, the convention still has a few hurdles to clear before entering into force. First the convention is opened for signature by governments. In signing a convention, a government implies intent to become a party to the convention. However, a government does not become a party to the convention and is not bound by it until it ratifies the agreement - a process that generally requires approval by national congressional, parliamentary or other internal process. Once a government has ratified a convention it has very little "wiggle room" with regard to the commitments it has made. However, all conventions have a provision for withdrawal or denunciation of the convention, a measure that generally requires repeal of the domestic legislation ratifying the convention.
The 1969 Vienna Convention on the Law of Treaties, which entered into force in 1980, sets out rules for treaties on such matters as entry into force, reservations, termination and invalidity. Pending ratification, a signatory to a convention is expected not to take any action that would undermine the convention's objectives; however, it is not until the requirements for entry into force - often a set number of ratifications - have been met that the treaty enters into force and becomes binding (Birnie and Boyle, 1992). Sometimes this can take very little time, as was the case with the 1992 Convention on Biological Diversity (CBD), which entered into force in December 1994, 18 months after it was adopted. In other cases entry into force can take a very long time, as with the United Nations Convention on the Law of the Sea, which took 12 years. During the period between adoption and entry into force, interim financial and administrative measures are often established to ensure that momentum is not lost. After the convention has entered into force, a conference of the parties (COP) is held annually or biennially to assess progress towards the implementation of the convention.
Once the convention is adopted, further negotiations are often necessary to clarify or strengthen the commitments made. Not all conventions set out clear, detailed or specific rules for taking immediate measures. For example, a number of recent environmental treaties, including the Vienna Convention for the Protection of the Ozone Layer and the United Nations Framework Convention on Climate Change (UNFCCC), are "framework" conventions that simply establish agreement among governments to remain concerned with the situation, with the general understanding that signatories to such a convention will later be required to take further action to set out the precise measures and commitments to be taken to address the problem. This is often accomplished through a protocol to the convention, as is the case with the Kyoto Protocol, negotiated in 1997 to strengthen UNFCCC. CBD is an "umbrella" instrument under which a number of protocols addressing specific issues are to be negotiated to determine specific commitments (Birnie and Boyle, 1992).
Implementation of the agreements and commitments made is the next, and a very essential, step. The effectiveness of a convention hinges on the strength of the convention's provisions and whether countries adhere to the provisions to which they have agreed. Each convention sets out the terms of its enforcement as well as measures for tracking parties' compliance, such as regular reporting or review of implementation at meetings of the parties. A country may face a number of obstacles to compliance, such as the high costs associated with implementation, inadequate translation of commitments into domestic implementing legislation, inadequate capacity for compliance or inability to monitor compliance. Compliance may be improved through measures such as increasing capacity for implementation and monitoring, applying political pressure by making it known that a country is not in compliance or, in extreme cases, trade sanctions against those found in violation of the convention (Porter, Brown and Chasek, 2000).
A number of actors, including scientists, non-governmental organizations (NGOs), international organizations and governments, can contribute to bringing international attention to a global environmental concern and to subsequent action.
Governments, having the competence for negotiating international agreements, are the prime actors. A government may take the lead in drawing attention to an issue that it finds to be of particular importance by providing scientific information on the topic, leading by example or encouraging an international organization to raise the profile of the issue and/or to convene negotiations on the topic. For example, the United States and Kenya took the lead in working with the World Conservation Union (IUCN) to develop a draft text which served as the basis for negotiating the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
To garner political support for action, a government might also undertake an initiative to host meetings or workshops to further debate, provide financial support towards the negotiation process or promise to commit financial and technical support to a future agreement. A government with political and financial clout is most likely to be able to influence the direction and pace of negotiations. Naturally, a government's interests at the international level are largely influenced by domestic politics as well as the costs and benefits of a global environmental issue to national interests. A change in the political party or leader in power can also shift a government's position at the international level.
International organizations are in a unique position in terms of having the political clout and backing to set the agenda regarding international environmental concerns to be addressed. They have the convening power to establish expert groups or panels to further the fact-finding stage and eventually to convene a body, such as an INC, to negotiate an agreement (Porter, Brown and Chasek, 2000). International organizations that have taken such initiative in the past include IUCN, the United Nations Environment Programme (UNEP), FAO, the World Meteorological Organization (WMO) and the World Health Organization (WHO). A number of conventions have been negotiated under the auspices of UNEP, including the Bonn Convention on the Conservation of Migratory Species, the Vienna Convention for the Protection of the Ozone Layer, the Basel Convention on Transboundary Movement of Hazardous Wastes and CBD (Birnie and Boyle, 1992).
Development of the Convention on International Trade in Endangered Species of Wild Fauna and Flora
The impetus for CITES began in the 1960s when countries became aware that overexploitation of wild plant and animal species to meet the demands of international trade was contributing to the rapid decline of resources of many species around the globe. IUCN had a critical role in catalysing action and took the initiative to begin drafting an international convention to regulate trade in rare or threatened species. The 1972 United Nations Conference on the Human Environment furthered momentum and political support by recommending the immediate preparation of an international convention on this issue. IUCN, the United States and Kenya produced a working paper which later became the basis for negotiations. The convention was adopted in 1973 and entered into force in 1975. The parties to CITES meet every two years to evaluate the status of species and to decide on action to strengthen or relax measures to protect species.
International organizations supply the forum for governments' negotiations, technical advice and support and secretarial services. The choice of forum often defines or influences which national ministries take part in the negotiations; for example, participation may be dominated by health ministries if the forum is WHO, agriculture if it is FAO, and environmental ministries if it is UNEP.
The influence of international environmental NGOs such as Greenpeace International, the World Wide Fund for Nature (WWF) and Friends of the Earth International is widely recognized; such groups have demonstrated their capacity to focus attention on an environmental concern and, by raising public awareness of issues, to apply political pressure on governments to take action. Since the 1992 United Nations Conference on Environment and Development (UNCED), participation of environmental NGOs in global environmental politics has become the norm, with NGOs having access to all meetings aside from ad hoc informal consultations such as contact groups.
NGO participation in global environmental politics has become the norm; NGOs have a role in raising public awareness of issues and applying political pressure on governments to take action: above, protesters oppose toxics outside the negotiations for the Convention on Persistent Organic Pollutants in Bonn, Germany
- INTERNATIONAL INSTITUTE OF SUSTAINABLE DEVELOPMENT/A. HENRY
Through this presence at international meetings, NGOs are able to influence debates by lobbying governments and even to circulate proposals for text informally. NGOs also contribute to the process by monitoring progress in negotiations and, perhaps more importantly, by monitoring the later process of implementing conventions. NGO commentaries and reports on progress in both negotiation and implementation can apply political pressure to keep governments diligent and true to their commitments. This function can be especially useful during the stage of regime strengthening, when accomplishments or lack thereof must be assessed to identify necessary action.
A representative of Greenpeace addresses the plenary at a COP of CBD
- INTERNATIONAL INSTITUTE OF SUSTAINABLE DEVELOPMENT/A. HENRY
Negotiation of the Convention on Biological Diversity
Juan Myers of Colombia, chair of the negotiations, signs the Biosafety Protocol
- INTERNATIONAL INSTITUTE OF SUSTAINABLE DEVELOPMENT/A. HENRY
In the case of developing CBD, the work of IUCN and subsequently UNEP was instrumental in drawing attention to the issue of conserving biological diversity and providing institutional backing. In the early 1980s, worldwide concern over the rate of biodiversity loss intensified as a result of growing scientific consensus on the matter. IUCN catalysed efforts towards developing an international agreement to conserve biodiversity by requesting its General Assembly to produce a preliminary draft of a global agreement on biological diversity. In June 1987, the UNEP Governing Council took a decision to establish an Ad Hoc Working Group of Experts on Biodiversity. As concern over the issue and international consensus grew, the group evolved into an Ad Hoc Working Group of Legal and Technical Experts on Biodiversity, and in 1991, as the fact-finding stage came to an end, the working group transformed into the INC for a convention on biological diversity. With the goal of completing the convention in time for UNCED, the INC concluded negotiations in five two-week sessions (Sanchez and Juma, 1994).
The negotiation of CBD also demonstrated the impact an individual can have on the process. Mustapha Tolba, then Executive Director of UNEP, concerned over the pace of progress in preparing CBD in time for UNCED, stepped in and replaced the designated chair of the INC and essentially submitted his own convention to delegates for approval within a limited time before the diplomatic conference to adopt the convention (Porter, Brown and Chasek, 2000).
After CBD came into force in 1993, it passed into the stage of regime strengthening. Initially, there was some support for developing a protocol on forest biodiversity, but the topic was deferred, in large part because of pressure from forest-product-exporting countries to prevent CBD from taking action on forests. CBD has developed thematic programmes on the biodiversity of inland waters, forests, marine and coastal areas, drylands and agricultural lands. The largest accomplishment of CBD to date is the negotiation of the Biosafety Protocol (also known as the Cartagena Protocol), which was adopted in January 2000 in Montreal, Canada after a near failure in Cartagena de Indias, Colombia, in 1999. Regarding alien species, CBD has begun a process of collaboration with conventions that have related mandates in other sectors, particularly the International Plant Protection Convention (IPPC). In harmony with CBD and intergovernmental negotiations led by the FAO Commission on Genetic Resources for Food and Agriculture, the International Undertaking on Plant Genetic Resources is being revised and is expected to become a legally binding instrument dealing specifically with the conservation, utilization and benefit-sharing of plant genetic resources for food and agriculture.
Industry, from oil companies to pharmaceutical companies, also holds significant capacity to influence the development of a convention. Because corporations are likely to be directly affected by environmental regulation, they can have much at stake. An industry may attempt to shape how an issue is perceived by promoting its research findings, lobbying domestic government to take a course of action beneficial to it, lobbying at international negotiations and forming corporate interest coalitions. In some cases industry is likely to favour an international agreement that is weak and sets out regulations on the industry that are less rigorous than domestic regulations. Similarly, corporations operating in countries with strict environmental regulations may support an agreement that would place similar restrictions on other corporations operating in countries with less rigorous environmental regulations (Porter, Brown and Chasek, 2000).
The negotiation stage is characterized by bargaining among governments with different interests to achieve consensus text that can be adopted. As mentioned earlier, this process is normally carried out by an INC mandated with producing a convention. Governments with similar interests often form coalitions to improve their bargaining power. Such coalitions are sometimes regionally based, but often move beyond geographical to geopolitical groupings. Developing countries generally work through the Group of 77 and China (G-77/China) to establish common negotiating positions on issues of interest to them, such as finance and technology transfer. Initially founded in 1964, the group comprises some 132 developing country members. The member governments of the European Union (EU) coordinate their views and agree to a common position for the negotiations. Non-EU developed countries have formed the JUSSCANNZ group (Japan, the United States, Switzerland, Canada, Australia, Norway and New Zealand), which acts as an information-sharing and discussion forum and in some negotiations agrees to a unified position.
Some coalitions may be specific to a certain process. For example, at climate change negotiations members of the Organization of Petroleum Exporting Countries (OPEC) coordinate their positions. The climate negotiations have led to the formation of the Alliance of Small Island States (AOSIS), a coalition of some 43 low-lying coastal and small island countries and territories that are particularly vulnerable to rise in sea level and have similar development concerns. In many processes, NGOs also build coalitions and hold coordination meetings to agree to a common position that they can put forward, backed by the force of numbers.
While all countries are allowed to participate in negotiations in an equal manner, they are not all equal in their ability to influence the negotiation process. Countries rich in natural resources, economic resources or political power, or those that are the primary culprits contributing to the environmental problem of concern, hold significant influence over negotiations, as they are needed "on board" to make an agreement effective. Such a country can take the lead to facilitate negotiations or can easily block progress. For example, the United States effectively kept targets from being included in UNFCCC because it considered the economic cost of taking on commitments too high given the uncertainty of the science and of the impact of climate change at that time (Lee, 1995).
Most environmental negotiations have been and continue to be characterized by a divide between the interests of the North (developed countries) and the South (developing countries). The polarization of these two groups stems from the differing distribution of finances, natural resources and technical capacity, as well as their sometimes divergent priorities. The natural resource-rich but financially poor developing countries are hesitant to commit to legally binding action to address an environmental issue or to conserve natural resources without compensation through financial assistance, technology transfer and capacity-building measures to ensure that they will be able to meet the obligations they take on. Developing countries are also wary of obligations that may not represent a priority for them or that will impede their ability to develop. Developed countries are eager to encourage mitigation and conservation efforts in developing countries, but often reticent to take on commitments to pay for such action.
A precedent-setting compromise between developing and developed country interests was the establishment of the Multilateral Fund under the Montreal Protocol to the Vienna Convention for the Protection of the Ozone Layer. In this particular situation, developing countries wanted a mechanism to ensure that developed countries would contribute to covering incremental costs of the phase-out of ozone-depleting substances and of the transfer of replacement technologies. Developed countries recognized that if developing countries were unable to comply, their own efforts to mitigate ozone depletion would be ineffective. After intensive negotiations, an interim fund was established in 1991 and the permanent Multilateral Fund became operative in 1993 (Benedick, 1998).
Another critical factor in international negotiations is scientific evidence and understanding of the environmental threat. A certain level of international consensus regarding the science can be essential to moving forward. A high degree of consensus on the science is likely to encourage action and can be fostered through collaborative scientific work. For example, scientific understanding and consensus had a major role in increasing governments' concern over the problem of stratospheric ozone depletion; scientific evidence that the ozone layer was thinner in 1990 than previously thought prompted agreement to phase out chlorofluorocarbons (CFCs). However, science does not always have a key role and can sometimes be dismissed if contrary to government agendas.
Climate change negotiations
During the 1980s, concern began to mount over the scientific evidence of human interference with the climate system. In 1988, WMO and UNEP took the initiative to clarify the issue further by establishing the Intergovernmental Panel on Climate Change (IPCC) to gather additional information on the matter. An expert group meeting hosted by the Canadian government in June 1988 gave further prominence to the issue by calling for a comprehensive convention on climate change. Endorsement of this idea by the G-7 in 1989 also contributed to the political momentum. In 1990 IPCC issued its first assessment report, confirming that climate change was indeed a threat and calling for a global treaty to address the problem. In response to these events, the UN General Assembly adopted Resolution 45/212 in December 1990, formally launching negotiations on a framework convention on climate change and establishing an INC to conduct those negotiations.
Climate negotiations were set back by insufficiently conclusive science and challenged by the central socio-economic importance of energy. Every country's economy is tied to energy, and commitment to reducing greenhouse gases gives rise to the question of who would bear the cost of changing energy consumption patterns. In addition, the energy industry's importance to the global economy lends it power in influencing politics. While a number of governments, including those of Finland, the Netherlands, Norway and Sweden, supported the inclusion of targets and time-tables in the framework convention, the United States opposed such measures. The EU took the lead through example by making commitments to carbon dioxide emission reduction targets.
In May 1992, the INC adopted UNFCCC without specific targets and timetables, as the United States could not be persuaded to support such commitments. The signing of UNFCCC was just the tip of the iceberg of the climate negotiations, marking the beginning of an international negotiation process to determine commitments to action. All signatories to UNFCCC did commit to addressing climate change, adapting to its effects and reporting on the actions that they would take to this end. The convention set out different commitments for industrialized countries (Annex 1 Parties) and developing countries (non-Annex I Parties).
In 1995, the parties agreed that the commitments for Annex 1 Parties were not adequate and launched a new round of talks to decide on stronger and more detailed commitments for these countries. These talks resulted in the 1997 Kyoto Protocol. The modalities of the mechanisms set out in the Kyoto Protocol have yet to be agreed and are the topic of ongoing negotiations (UNFCCC, 2000; Porter, Brown and Chasek, 2000).
Despite the official atmosphere of the plenary of an INC, much of the excitement and real action of a negotiation goes on in the corridors, over coffee or behind closed doors in contact or drafting groups. While the plenary is discussing mundane issues, key negotiators are often hidden away talking about the politics underlying key issues such as the real commitments to be taken on and financial and technical assistance. It is in bilateral discussions and the back room of negotiations that deals are cut and compromise reached.
During the final negotiations of the Stockholm Convention on Persistent Organic Pollutants, for example, countries were divided with regard to the terms of the financial resources and mechanism for the convention. Developed countries advocated that the Global Environment Facility (GEF) should serve as the basis for the mechanism, while developing countries preferred the establishment of a new mechanism and emphasized the need for new and additional financial resources. To resolve the issue, an informal group met for two and a half days, working through the night on the final day. The brokered deal that was accepted in plenary commits developed countries to provide new and additional financial resources and establishes GEF as the interim financial mechanism until the first COP or until such time as the parties decide otherwise.
Experience in developing international agreements indicates that the international community will take action to develop a convention when there is consensus on the need for such action and consensus on the action to be taken. In most cases, the initial stages of development of a convention are driven by the work of an international organization committed to mitigating the environmental concern or a powerful nation with a specific interest in doing so. Consensus on the science surrounding an issue, along with political pressure from civil society, NGOs and other interest groups, can also contribute to building impetus for action. The negotiation of a convention is rarely enough to produce commitments sufficient to reach the desirable goal or stated purpose. Measures to strengthen the commitments may need to be negotiated and, most importantly, implemented if the threat to the global environment is to be addressed.
Benedick, R.E. 1998. Ozone diplomacy: new directions in safeguarding the planet. Cambridge, Massachusetts, USA, Harvard University Press.
Birnie, P.W. & Boyle, A.E. 1992. International law and the environment. New York, Oxford University Press.
Lee, H. 1995. Shaping national responses to climate change. Washington, DC, Island Press.
Porter, G., Brown, J. & Chasek, P. 2000. Global environmental politics. Boulder, Colorado, USA, Westview Press.
Sanchez, V. & Juma, C. 1994. Biodiplomacy: genetic resources and international relations. Nairobi, Kenya, African Centre for Technology Studies (ACTS) Press.
UNFCCC. 2000. Guide to the climate change negotiation process. Internet document:www.unfccc.de/resource/process.