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APPROACHING INTERNATIONAL ENVIRONMENTAL NEGOTIATION AS A GOVERNANCE PROCESS

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, 23-27 November 2009, Athens, Greece). INTRODUCTORY REMARKS.

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APPROACHING INTERNATIONAL ENVIRONMENTAL NEGOTIATION AS A GOVERNANCE PROCESS

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  1. 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)

  2. 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)

  3. 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

  4. 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 • Subjectivities • Platforms • Bases of Power • Modalities/Strategies • Outcomes - Results

  5. 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

  6. 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

  7. 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

  8. Combined Relational and Multilateral Actions • 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 • 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

  9. 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

  10. 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 • 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

  11. 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

  12. THE CONTEXTUALIZING ELEMENT • General Standard Causes regarding: • The External Context • Inter-regimes relationship • Established Sovereign Power-Rights • 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

  13. 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

  14. 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

  15. 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

  16. 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

  17. 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 Contextenhances 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

  18. 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

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