APPROACHING
INTERNATIONAL
ENVIRONMENTAL
NEGOTIATION AS A
GOVERNANCE PROCESS
By
Evangelos Raftopoulos
1st COST TRAINING SCHOOL ON INTERNATIONAL ENVIRONMENTAL
NEGOTIATION AS A GOVERNANCE PROCESS
(MEPIELAN CENTRE, 23-27 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
 Evaluation of multi-factor importance of environmental
problem and its effects
Assessment of the state of scientific knowledge
 Instrumentation
Use of objective indicators (a problem-oriented
approach
Managing uncertainties of science
A Scientific Report
RELATIONAL IDENTIFICATION
 Identification of Relational Order
Contextual Reference
Contextual Consistency
An Added Value Approach
 Identification of Relational Conduct
 The Structuring of the Negotiating Team
The Evaluation of Best Alternatives
The Participants/Role Diagnostic Model
Participants
o Subjectivities
o Platforms
o Bases of Power
o Modalities/Strategies
o Outcomes - Results
o
THE LEVEL OF MULTILATERAL GOVERNANCE
• 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
Generates a collective declaration/resolution/strategy
with certain heuristic power
Opportunity of dialectical learning and appropriate
communication flow
Techniques
 The Procedural Aspect: The Drafting of the Agenda
The Purpose of the Conference
The Plan of the Conference
The Pace of the Conference
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 Declaration/Resolution/Strategy
NEGOTIATION AS A PROCESS OF
CONSTITUTIVE GOVERNANCE
• A process of establishing a conventional environmental governance regime
• 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
 INITIATION
• Distinct Political Initiative
 Multilateral Action
By a Group of States, usually in cooperation with a competent
IGO
 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
 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

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
 Regime Action
• Organizational 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
 Assists the Negotiating Parties
 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
 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
 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
 Explicit Determination of their status
 Determination of Criterias for their participation
 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-process
• Textual negotiation takes place in context
 Three interrelated criteria:
 Contextual reference
 Contextual consistency
 Added Value Approach

The Knowledge Context
 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
 Indicators of integration of scientific knowledge and considerations into the
pattern of conventional environmental regimes at the constitutive
negotiation process
o
o
o
o
Quality of negotiation forum
Definitional Element
Incorporation of extensive Technical Annexes
Regime-anticipation of process integration of scientific
findings and standards
 The Localized Context
 The Mediterranean aspect
Determinants of Region-specific identity
FORM IDENTIFICATION
 The “Framework Convention – Performative Protocols in
processu” Drafting Technique
 The integration of ordered and turbulent aspects
 The non-linear development
 The context-dependence
 The irreducibility and irreversibility
PATTERN IDENTIFICATION
 The Preamble
 The Definitional Element
 Regime-specific terms
 Regime-constative terms
 Regime-performative terms
 Scope of Application
 Geographical Scope (Borderline regionality – functional
regionality)
 Material Scope
THE CONTEXTUALIZING ELEMENT
 General Standard Causes regarding:
a) The External Context
 Inter-regimes relationship
 Established Sovereign Power-Rights
b) The Intrinsic Context
 Inter-temporal equity, particular structures, performative
principles and standards
 Framework formulation of regime-specific aspects
 Prevalence of stricter national regimes/rules
 THE MANAGEMENT SYSTEM


The Cooperative Aspect
Cooperation in env/governance instrumentation
 Monitoring System, Observation Mechanisms, Networks
 Environmental Assessment
 Economic & Financial Instruments
 Implementing Measures
 Liability & Compensation regime
Cooperation in env/governance agency
 Coordination of State Actors at all levels
 Participation of Non-State Actors
 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
 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
 The controlling individualizing aspect
 Reporting Procedure
 Compliance Procedure/Mechanism
 Verification
 The restorative aspect
 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
 Complexity 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)
 Initiation
 By a distinctive regime action
 Institutional Decision by MOP/COP
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
Guides the Negotiating Parties
Prepares a Report on the Proposed Amendments
Facilitates the Amendment Negotiation Process
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
The Contracting Parties
• Collective function in Relational Governance
 The Ad Hoc Meetings of Working Group of Legal & Technical
Experts (The Expert and Administrative 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
 IDENTIFICATION OF FORM
Amendment or Replacement?
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
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)
 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
 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
Consensus-Building Facilitator