The Organization of Global Negotiations : Constructing the Climate Change Regime 9781849773171, 1849773173, 1844070468

Table of contents :
Content: The Organization of Global Negotiations: Constructing the Climate Change Regime
Copyright
Contents
List of Figures, Tables and Boxes
Acknowledgements
Acronyms and Abbreviations
1 Introduction
2 The Organization of Global Negotiations
Introduction
The fundamentals of negotiations
Global intergovernmental negotiations: challenges
The organization of global negotiations
Summary and concluding remarks
3 The Challenges of the Climate Change Negotiations
Introduction
The climate change problem
The climate change negotiations and the climate change regime. The challenges of the climate change negotiationsThe organization of the climate change negotiations
Summary and concluding remarks
4 Presiding Officers
Introduction
Mandate, functions and appointment
The roles of presiding officers
Skills and qualities
Summary and concluding remarks
5 Bureaux
Introduction
Composition
Mandate and functions
Informal roles
Skills and qualities
Summary and concluding remarks
6 The Secretariat
Introduction
Institutional arrangements
Mandate and functions
The secretariat's two masters
Supplying organizational energy to the negotiations. Summary and concluding remarks7 Rules for the Conduct of Business
Introduction
Key rules and nformal practices
Functions of rules and informal practice
Procedure as strategy
Putting the rules into practice
Summary and concluding remarks
8 Decision-making Rules
Introduction
Consensus and its contested meaning
The impact of the consensus imperative
Overcoming the threat of procedural blockage
Summary and concluding remarks
9 Negotiating Arenas
Introduction
The climate change institutions
Formal open arenas: plenary meetings and variants. Informal arenas: informal groups and informal consultationsFriends groups and shuttle diplomacy
Unofficial negotiations
The deal-making arena
Summary and concluding remarks
10 Complementary Forums: Workshops, Roundtables and Others
Introduction
Workshops and Roundtables
Side events and ad hoc meetings
Summary and concluding remarks
11 Texts
Introduction
Documentation in the climate change regime
The development of texts in the climate change negotiations
The raw material: miscellaneous documents
Precursor texts
Single negotiating texts
Chair's texts. The final negotiating textsSummary and concluding remarks
12 Time Management
Introduction
Duration
The use of time
Time management in the Kyoto Protocol negotiations
Time management in the post-Kyoto negotiations
Negotiation by exhaustion
Summary and concluding remarks
13 The Political and the Technical: Ministerial Input
Introduction
The high-level segment
The general debate
Roundtable forums
Direct participation
Summary and concluding remarks
14 Participation by Non-governmental Organizations
Introduction
NGOs and the climate change regime
Rules for admission. Channels for participation.

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The Organization of

Global Negotiations Constructing the Climate Change Regime

The Organization of Global Negotiations: Constructing the Climate Change Regime

The Organization of Global Negotiations: Constructing the Climate Change Regime

Joanna Depledge

ijflianiaaBiaigi L o n d o n • Sterlin g, VA

F irst p u b lish e d by E arth scan in the U K an d U SA in 2005 C op y rig h t © Jo a n n a D e p le d g e , 2005 IS B N : 1-84407-046-8 h ard b a c k T y pesettin g by F iS H B o o k s P rin ted and b o u n d in the U K by B ath P re ss, Bath C o v e r d esign by D an ny G ille sp ie F o r a full list o f p u b lic atio n s p le ase con tact: E arth scan 8 -1 2 C am d en H igh Street L o n d o n , N W 1 0 JH , U K Tel: + 4 4 (0)20 7387 8558 F a x : +44 (0)20 7387 8998 E m ail: earth in fo @ earth scan .co .u k W eb: w w w .e a r t h s c a n .c o .u k 22883 Q u ick silv e r D rive, Sterlin g, VA 2 0 1 6 6 -2 0 1 2 , U SA E arth scan is an im prin t o f Ja m e s and Ja m e s (Scien ce P u b lish ers) L td an d p u b lish es in asso ciatio n with W W F -U K and the In tern ation al In stitu te for E n v iron m en t and D ev elo p m en t A catalo g u e record for this b o o k is av ailab le from the British L ib rary L ib rary o f C o n g re ss C atalo gin g-in -P u b licatio n D ata D e p le d g e , Jo a n n a . T h e o rgan ization o f in tern ation al n egotiation s: con stru ctin g the clim ate ch an ge re g im e/Jo an n a D ep le d g e , p. cm . In clu d e s b ib lio g rap h ic al referen ces and in dex. IS B N 1-84407-046-8 (h ard b ack ) 1. C lim atic ch an ges - In tern ation al co o p eratio n . 2. E n v iron m en tal policy In tern ation al co o p eratio n . I. Title Q C 9 8 1 .8 .C 5 D 4 3 2005 3 6 3 .7 3 8 ’7 5 5 2 6 -d c 2 2 2 0 0 4 0 2 4 .8 1 7

P rin ted on elem ental chlorine-free p a p e r

Welcome to the Maldives Climate Conference Source4. © Law rence M oore

Contents

List o f Figures, Tables and Boxes Acknowledgements List o f Acronyms and Abbreviations

x xii xiii

1

Introduction

1

2

The Organization of G lobal Negotiations

5

Introduction The fundam entals o f negotiations G lobal intergovernmental negotiations: challenges The organization of global negotiations Summ ary and concluding remarks

3

The Challenges of the Climate Change Negotiations Introduction The climate change problem The climate change negotiations and theclimate change regime The challenges of the climate change negotiations The organization of the climate change negotiations Summ ary and concluding remarks

4

Presiding Officers Introduction M andate, functions and appointm ent The roles o f presiding officers Skills and qualities Summ ary and concluding remarks

5

Bureaux Introduction Com position M andate and functions Informal roles Skills and qualities Summ ary and concluding remarks

6

The Secretariat Introduction Institutional arrangements M andate and functions

5 5 6 14 17

18 18 18 21 26 32 34

35 35 35 41 48 53

54 54 54 56 57 60 60

62 62 62 64

The O rganization o f G lo b al N egotiations

The secretariat’s two m asters Supplyin g organizational energy to the negotiations Sum m ary and concluding rem arks

65 70 77

R ules for the Conduct of B usiness

80

Introduction Key rules and inform al practices Functions o f rules and inform al practices P rocedure as strategy Putting the rules into practice Sum m ary and concluding rem arks

80 80 81 84 85 90

D ecision-m aking Rules

91

Introduction C on sen sus and its contested m eaning The im pact o f the consensus im perative O vercom ing the threat o f procedural blockage Sum m ary and concluding rem arks

91 91 94 96

102

N egotiating Arenas

104

Introduction The clim ate change institutions Form al open arenas: plenary m eetings and variants Inform al arenas: inform al grou p s and inform al consultations Friends grou p s and shuttle diplom acy U nofficial negotiations T h e deal-m aking arena Sum m ary and concluding rem arks

104 105 106 113 122 132 134 135

Com plem entary Forums: W orkshops, R oundtables and Others

137

Introduction W orkshops and roundtables Side events and ad hoc m eetings Sum m ary and concluding rem arks

137 137 143 144

Texts

145

Introduction D ocum entation in the clim ate change regim e T h e developm ent o f texts in the climate change negotiations The raw material: m iscellaneous docum ents P recursor texts Single negotiating texts C h air’s texts The final negotiating texts Sum m ary and concluding rem arks

145 146 147 149 151 152 156 163 164

Contents

12 Time M anagem ent Introduction Duration The use of time Time management in theKyoto Protocol negotiations Time management in the post-Kyoto negotiations Negotiation by exhaustion Summ ary and concluding remarks

13 The Political and the Technical: Ministerial Input Introduction The high-level segment The general debate Roundtable forum s Direct participation Summ ary and concluding remarks

14 Participation by Non-governmental Organizations Introduction N G O s and the climate change regime Rules for admission Channels for participation Side events and exhibits Unofficial vehicles Summ ary and concluding remarks

ix

171 171 171 175 179 183 190 193

194 194 194 195 197 201 207

209 209 209 212 216 226 229 230

15 Conclusions: Twelve Key Insights

231

Notes References Index

237 243 253

List of Figures, Tables and Boxes

Figures 3.1 3.2

The basic institutional structure of the climate change regime International treaty-making: A model for global dem ocracy

22 29

Tables 3.1 4.1 4.2 9.1 9.2 9.3 11.1 11.2 11.3 11.4 11.5 11.6 11.7 12.1 13.1 14.1 14.2

The three main phases of the climate change negotiations C O P presidents to date Chairs of the SBSTA and SBI to date Main types of negotiating arenas in the climate change regime Working bodies o f the C O P Key friends groups convened under the C O P or A G BM in the climate change regime up to the adoption of the M arrakesh Accords Official and semi-official docum entation o f the climate change regime The textual developm ent process Textual developm ent of the Kyoto Protocol negotiations Textual developm ent on the package o f key political issues in the post-Kyoto negotiations, resulting in the Bonn Agreem ents Textual developm ent on the flexibility m echanism s in the postKyoto negotiations, resulting in the M arrakesh A ccords Textual developm ent on com pliance in the post-Kyoto negotiations, resulting in the M arrakesh A ccords Textual developm ent on L U L U C F in the post-Kyoto negotiations, resulting in the M arrakesh A ccords Com parison o f duration with other environmental negotiations Ministerial roundtables held in the climate change regime Statem ents made by N G O s at C O P sessions Extract from the daily program m e of meetings for W ednesday 10 D ecem ber 2003 at C O P 9

27 38 40 105 111 126 148 149 166 167 168 169 170 172 202 220 227

Boxes 3.1 3.2

Key elements of the U N Framework Convention on Climate Change Key elements o f the Kyoto Protocol

21 24

List o f Figures, Tables and Boxes

M ajor coalitions in the climatc change regime and their basic positions 7.1 Funding for participation 8.1 T h e ‘alm ost vote’ 9.1 Inform al plenary m eetings 9.2 M aking up for the failure of C O P 6: The open-ended informal high-level consultations in Scheveningen, the Netherlands, Ju n e 2001 10.1 Com plem entary forum s 10.2 The A G BM roundtables

xi

3.3

30 83 99 108

125 139 141

Acknowledgements

This book began life as a PhD thesis. First and forem ost, therefore, thanks are due to my supervisor, Professor Jacqu ie Burgess, at University College London. I am sincerely grateful for her unfailing support throughout my PhD p ro cess, which w as a som ew hat un usual one. W ithout Ja c q u ie ’s encouragem ent, my thesis would never have m etam orphosed into this book. Thanks are also due to the U K Econom ic and Social Research Council (ESRC) for their invaluable financial su p p o rt (p o stgrad u ate training aw ard R 00429634040), and for having dem onstrated the administrative flexibility necessary to accom m odate my work at the U N F C C C secretariat in Bonn. I am deeply indebted to all the interviewees who took time out from the climate change negotiations to share their experiences with me and who, in doing so, have greatly enriched this book. It would exceed the page limit of this book to express the appreciation deserved by all my climate change friends and colleagues around the world who have inspired, encouraged, informed and enlightened me over the past years. I must, however, single out five individuals, who laid the foundations for this book: Richard Kinley, Michael Zammit Cutajar and G reg Terrill, who understand the im portance o f effective organization; A m bassador Estrada, without whom the story o f this book would have been very different; and D r Ian Row lands, formerly at the London School o f Econom ics and Political Science, now at the University o f W aterloo in C anada, who instilled in me a fascination with climate change that has only grown over the years. And finally, a big thank you to everyone at Lucy Cavendish College and the Sutasom a Trust for having faith in my research, and to Jonathan Sinclair Wilson, Ruth Mayo, Camille Adam son and their colleagues at Earthscan for supporting me throughout this project, and for greeting my countless requests for m ore time with good cheer and understanding.

Acronyms and Abbreviations

A IJ AG 13 AGBM A O SIS BAPA B IN G O CBD CD M C O P /M O P COP CoW CRP E IT ENB ENGO G-77 GEF GHG IG O IH L P IN C IN F IPCC IP O s JI JW G LD C LG M A s LULUCF M EA M ISC NGO OECD OPEC QELROs R IN G O

activities im plemented jointly Ad H oc G roup on Article 13 Ad H oc G rou p on the Berlin M andate Alliance of Small Island States Buenos Aires Plan of Action (agreed at C O P 4 in 1998) business and industry non-governmcntal organization Convention on Biological Diversity (1992) clean developm ent mechanism Conference of the Parties serving as the meeting o f the Parties to the Kyoto Protocol Conference of the Parties Com m ittee o f the Whole (at C O P 3) conference room paper economy in transition (former Soviet Union and Eastern Europe) Earth N egotiations Bulletin environmental non-governmental organization G rou p o f 77 G lobal Environment Facility greenhouse gas intergovernmental organization informal high-level plenary (at C O P 6) Intergovernmental N egotiating Com m ittee for the U N F C C C (1990-1995) Information docum ent Intergovernmental Panel on Climate Change Indigenous P eop le’s Organizations joint implementation Jo in t Working G rou p on Com pliance least developed country L ocal Governm ent and M unicipal Authorities land use, land-use change and forestry multilateral environmental agreement miscellaneous document non-governmental organization Organisation for Econom ic Co-operation and Developm ent Organization of Petroleum Exporting Countries quantified emission limitation and reduction objectives rescarch-oricnted and independent non-governmental organizations

xiv

The Organization o f G lobal Negotiations

SBI SBSTA SID S TA R UNCTAD UNEP U N FCCC UNGA UNOG WMO W TO

Subsidiary Body for Implementation Subsidiary Body for Scientific and Technological Advice Small Island Developing States Third Assessm ent Report of the IPCC United N ations Conference on Trade and Development United N ations Environment Program m e United N ations Fram ew ork Convention on Climate Change United Nations G eneral Assembly United N ations O ffice at Geneva World M eteorological Organization World Trade Organization

2

Introduction

The balance between war and peace may be a matter not o f the nature of the differences that divide us, but o f the process we use to resolve those differences (Raiffa, 1991, p9). G lobal negotiations - negotiations that are open to all o f the w orld’s nation states - have becom e an increasingly popular means o f tackling pressing problem s that cut across international boundaries. Environmental issues have been at the forefront of this trend, with global negotiations at the close of the last millennium agreeing treaties on, for exam ple, climate change, biodiversity loss, desertification, persistent organic pollutants, prior informed consent and stratospheric ozone depletion. Other issues have also been addressed through global negotiations, including anti-personnel landm ines through the 1997 O ttaw a Convention, international trade under the 1994 W orld Trade Organization (W TO ) and even sm oking under the 2003 World Health Organization Fram ew ork Convention on Tobacco Control, the first public health global treaty. The focus o f this book is on the global negotiations attempting to resolve one o f the more com plex and difficult issues facing the international community - global climate change. Organizing global negotiations - am ong more than 180 heterogeneous states on often highly contentious issues to forge a mutually acceptable outcome - is a difficult and intricate task. Organizational factors, however, such as the role of the Chair, the choice o f negotiating arenas, the rules for the conduct of business and the approach of negotiating texts, are usually taken for granted and rarely attract attention until something goes wrong. A series of high profile collapses in negotiations - the first round of negotiations on the Cartagena Biosafety Protocol (February, 1999) the Sixth Conference o f the Parties (C O P 6) to the United N ations Fram ew ork Convention on Clim ate Change (U N F C C C ) (Novem ber, 2000) and the Seattle and Cancun Ministerial Conferences o f the W T O (December, 1999 and December, 2003) - have gradually begun to draw attention to the dangers o f ineffective organization, and how this can contribute to unnecessary negotiating failure. The basic assum ption o f this book is that the organization o f a negotiation process matters. The way in which a negotiation is organized can im pact on the negotiation process in a positive or negative way to enhance or reduce its effectiveness and the likelihood o f reaching agreement. This basic assum ption is

2

The O rganization o f G lo b al N egotiations

supp orted by both participants in international negotiations and the academ ic literature. L an g, for exam ple, a veteran negotiator in global environm ental regim es, states that ‘organizational features o f a specific negotiation constitute ... im portant b ack groun d conditions which are able to facilitate or delay p ro gress’ (Lan g, 1994, p206). Boyer, in turn, introducing a volum e o f the leading acad em ic jou rn al In te rn atio n al N egotiatio n, n otes that in efficien t and undesirable outcom es have often resulted from ‘the way in which negotiations have been structured and organ ized’ (Boyer, 1999, p l0 2 ). T h e assum ption , however, is a m odest one. T h is b ook does not claim that organizational factors by them selves can account for the success or failure o f a negotiation, or even that they are a consistently dom inant factor. At the time o f w riting, U S repudiation o f the K yoto P rotocol and delayed Russian ratification were far higher on the list o f forces shaping the climate negotiations than the qualities o f the presidin g officers, the use o f inform al grou p s or the tim ing o f release o f a negotiating text. Even the best-organized negotiation will fail if the political will to reach agreem ent is sim ply absent. This, however, does not m ean that the organization o f a negotiation process is unworthy o f attention. T h e way a negotiation is organized is one o f many, often com peting, factors that together shape the negotiation p rocess and direct it tow ards a particular outcom e. The attraction o f studying organizational factors lies in their open n ess to collective policy m anipulation. W hile the extent o f possible m anipulation varies from case to case, short term organizational decisions can be taken that directly influence the course o f negotiations, w hereas other forces at play in a negotiation (such as distribution o f power, dom estic interests, the salience o f an issue, b ro ad er geopolitics) rarely lend them selves so readily to such m anipulation. G lob al negotiations are also qualitatively different to other types o f negotiations. T h e large n um ber o f participants, their econom ic, cultural, social, political and linguistic differences, and the historical b ag gag e o f international relations, all m ake for an inherently highly com plex process. A s well as com plexity, global negotiations m ust also contend with the contradiction betw een the m assive inequality o f participants in term s o f wealth and power, and the internation al norm o f sovereign equality. T h ese two defining characteristics o f com plexity and inequality raise en orm ous challenges for g lo b a l n e go tiatio n s, n otab ly a ten den cy to in efficien cy and stron g com petitiveness am ong n egotiators, along with struggles over transparency and procedural equity. The way in which the process is organized is therefore far m ore im portant for global negotiations than for any other type. W hile twoparty negotiations can run as a free-for-all, global negotiations sim ply could not fun ction w ith out p ro c e d u ra l ru les, in stitu tion al arran gem en ts and organizational leaders. T h is b ook is linked into broader, long standing debates over global governance, and global environm ental governance in particular (e.g. see R osenau and C zem piel, 1992; Young, 1997; B rack and H yvarinen, 2002). D eb ates over global environm ental governance span a range o f p roposals, including the potential for exploiting synergies across different regim es and even the possibility o f establishing a new overarching G lo b al Environm ent

Introduction

3

Organization. Although the negotiation process, and how it could be improved, has remained on the sidelines of these debates, its rightful place is at their centre. In w hatever way the current system o f global environm ental governance is eventually reformed (or not), it will remain founded on negotiation as the engine of intergovernmental cooperation. The organization of the negotiation process is one o f the lesser studied factors influencing the course of a multilateral negotiation, having enjoyed relatively little or only superficial attention in the academ ic literature com pared with m ore popular lines o f analysis, such as the im pact o f pow er structures, interests or knowledge (e.g. see Litfin, 1994; Rowlands, 1995; Zartman and Rubin, 2000a). This relative neglect can be attributed, at least in part, to the fact that academ ic researchers rarely have access behind the scenes o f global negotiations where m ost decisions on organizational matters are made. In consequence, researchers tend not to be aware of the considerable effort that goes into organ izational decision-m aking, o f why certain option s are implemented and others rejected, and of the implications of these decisions. My objective in this book is to start to fill this gap in the understanding of the organization o f global negotiations. In doing so, I draw heavily on my first hand experience o f the organization o f global negotiations gained while working for the U N F C C C secretariat during 1996-2001, as both a staff m em ber and a consultant. I supplem ented this first hand experience with two rounds of interviews, conducted in 1999/2000 and 2003/2004, with a range of participants in the climate change negotiations, including country delegates, non-governmental organizations (N G O s) and secretariat staff. M ost of the 30 interviewees w ould only speak on condition o f strict anonymity, so their names and affiliations are not given. In addition to these structured interviews, I have enjoyed, over the years, countless illuminating conversations with very diverse friends and colleagues in the climate change community. Much of the analysis in this book has been shaped and inspired by these private discussions. The book explores the organization of the climate change negotiations from the first session of the Conference o f the Parties (C O P 1) to the U N F C C C in 1995 to C O P 9 in 2003. The climate change negotiation process went through three distinct phases over this eight-year period: • •

•

the Kyoto Protocol negotiations that led to the adoption o f the Protocol at C O P 3 in 1997 the post-Kyoto negotiations on the details of the Kyoto Protocol and the implementation o f the U N F C C C , which broke down at C O P 6 in 2000, but finally culminated in the adoption of the political Bonn Agreements at C O P 6 (part II) and the more technical M arrakesh A ccords at C O P 7 in 2001 the post-Marrakesh negotiations, which continue to this day on more routine aspects o f the developm ent o f the regime.

These phases make up a useful set o f cases for the study o f global negotiation processes, as they com prise both m ajor successes (C O P 3, C O P 6 (part II), C O P 7) and a failure (C O P 6 part I), along with sessions that resulted in

4

The O rganization o f G lo b a l N egotiation s

su b stan tive agreem en t, b u t dissatisfactio n over the n egotiation p ro c e ss itself (C O P 2, C O P 4). T h e b o o k fo cu ses on specific organ ization al elem ents, exam in in g how these w ere m an ip u lated and how they played out through the differen t ph ases o f the clim ate chan ge negotiation s. Firstly, it look s at the roles o f w hat m ight b e called the organizers o f the n egotiation process: • • •

the p resid in g officers the b ureau the secretariat.

Secondly, it analyses the organ ization al rules govern ing the n egotiation s, in cluding: • •

rules fo r the co n d u ct o f b u sin ess rules fo r decision -m aking.

T h e b o o k then fo cu ses on three critical dim en sion s o f the n egotiation p ro ce ss - p lace, tim e an d the w ritten w ord, that is: • • •

the n egotiatin g aren as an d com plem en tary (n on -n egotiating) foru m s (such as w ork sh op s) the n egotiatin g texts the tim ing o f the n egotiation s.

Finally, it e x p lo re s the channels for eliciting, receiving an d p ro c e ssin g input from tw o im portan t, b u t very differen t, sets o f p articipan ts: • •

m inisters N G O s.

Tw o open in g ch apters fram e the analysis. T h e first e x p lo re s in m ore detail the challenges faced by g lo b al n egotiation s and the n ature o f the organ ization al elem ents (C h ap ter 2). T h e secon d open in g ch ap ter in trod u ces the clim ate chan ge issu e, exam in in g the specific challenges faced by the clim ate change n egotiation s and p rovid in g an overview o f the various n egotiatin g ph ases to date (C h ap te r 3). T h e b o o k en ds by draw in g som e gen eral con clu sio n s on the organ ization o f the clim ate chan ge n egotiation s, in clu din g 12 key lesso n s that could b e ap p lie d to g lo b a l n egotiation s m ore generally.

2

The Organization of Global Negotiations

H av in g started in a very civilized fash ion with so n gs ab o u t the future from ch ild ren ’s c h o ir s ... the m e e tin g . . . fin ish ed at fou r o ’clock in the m orn ing, on e day late, with m ost o f the delegates having ab a n d o n e d their c h a i r s ...t o gath er on the front pod iu m and sh out at each oth er (B renton , 1994, p l8 3 ).

Introduction T h is ch apter sets out the analytical fram ew ork for this b o o k an d in tro d u ces key con cep ts. It b egin s by d iscu ssin g n egotiation s in gen eric term s, b e fo re turning specifically to g lo b a l n egotiation s, an d analysing the challenges that these face. T h e ch apter then exam in es how regim es and n egotiation s relate to each other, b e fo re e xp lo rin g m ore fully the con cept o f the organ ization o f the negotiation p ro ce ss.

Th e f u n d a m e n t a l s o f n e g o t i a t i o n s A n egotiation can b e u n d e rsto o d as ‘a p ro c e ss o f m utual persu asion an d ad ju stm en t w hich aim s at com b in in g n on -identical actor preferen ces into a single join t d e c isio n ’ (R ittberger, 1983, p l7 0 ). U n d e rsto o d in this way, n egotiation s are a u b iq u ito u s m echanism fo r d ecision -m akin g at every level o f social in teraction and am on g a range o f actors. Fam ily m em b ers negotiate on their h oliday destin ation , trad ers b arter over g o o d s, trad e unions negotiate with em ploy ers over pay d eals, go vern m en ts launch n egotiation s on crossb o rd e r con cern s. F o r any n egotiation to take p lace, three key con d ition s m ust b e fulfilled. Firstly, tw o or m ore actors m ust b e in a situation o f interdependence, that is, they m ust share an area o f com m on in terest w here the action s o f one will affect the oth er(s). Secondly, their in terd ep en d en ce m ust b e ch aracterized by discord, that is, w ith the actors p referrin g differen t co u rse s o f action. T h e se two con d ition s are fu n dam en tal; ‘w ithout com m on interest, there is nothin g to n egotiate for, w ith out conflict, nothing to negotiate a b o u t’ (Ikle, 1964, p2). Thirdly, the actors involved m ust (im plicitly or explicitly) eschew other m eans

6

The O rganization o f G lo b al N egotiations

o f resolving their case o f discordant interdependence, notably, the use o f overt force or having recourse to an independent adjudicator. The negotiation p rocess will typically pass through a n um ber o f stages. Firstly, participan ts will need to agree the agenda, or m andate, for the negotiation, setting out, for exam ple, the issues to be covered, the deadline, and the main forum for the talks. A greeing these b asic conditions for the negotiation may in itself be contentious. The negotiation process p roper will often start with a period o f exploration o f the issues on the agenda, which may involve gath erin g d ata and in form ation fo r collective an alysis by the n egotiators, or calling for independent technical input. A key stage in the negotiation will be when participan ts m ake form al proposals, expressin g divergent preferences, or positions, on at least som e o f the issues under negotiation. T h e divergent positions will tend to reflect a m ix o f both tangible perceived interests and intangible values and principles, o f which the latter are likely to be particularly stable and less am enable to change. The tabling o f p rop osals will often m ark a transition from exploration to bargaining, after which negotiators explicitly engage with one anoth er’s positions to devise solutions that can bring them to agreem ent, through m utual com prom ises, trade-offs, linkages, packagin g, side-paym ents, adding and subtractin g issues and so on.' Bargaining will be relatively low key at first, focusing on m ore peripheral, less contentious issues, becom ing m ore intense over time. The final stage in a negotiation is deal-making, w here negotiators will start to reach agreem ent on the issues on the table, starting with the m ore straightforw ard ones. N egotiations traditionally end in a dram atic finale, where the m ore difficult questions are finally tackled through intensive bargaining. It can often seem as if alm ost all the real w ork is done in the finale. T h e negotiation will end when negotiators conclude, often in the face o f a deadline, that they have adjusted their positions, and others have ad justed theirs, as m uch as they can. If, at this stage, the com prom ise solution on the table is perceived as preferable to what the n egotiators could obtain w ithout an accord, then substantive agreem ent is likely to be reached.

Gl o b al i n t e r g o ve r nm e nt a l negoti ati ons: C ha ll en ges W hile all negotiations share the sam e fundam entals, specific negotiation types merit separate study. T h ese are usually differentiated by the type o f negotiating parties (e.g. individuals, lab ou r organizations, governm ents) and their number. T h e p a rticu lar n egotiation type upon w hich we focu s is a glo b al intergovernm ental negotiation, that is, w here the main negotiating parties are sovereign states and the negotiation involves many such states. State go vern m en ts are in tricate n e gotiatin g parties. A s individual n egotiators, governm ent representatives in an intergovernm ental negotiation are accoun table to their dom estic legislatures. T h is is not unusual; m ost n egotiators, at any level, negotiate on b eh alf o f a constituency, for exam ple, a trade union. How ever, in negotiations am ong states, the relationship between the individual negotiator and his/her constituency is particularly com plex.

The Organization o f G lob al N egotiations

7

States arc not monolithic, and different government departm ents, as well as individuals within departm ents, are likely to have varying views over the national positions to be taken to the intergovernmental arena, and then over whether, when and how to adjust those positions as negotiations progress. The position of a particular state will also be influenced by dom estic political considerations, which may be only tangentially related to the issue under negotiation. D ifferences between government departm ents within a state are likely to be reflected in (usually sharper) differences am ong N G O s who will lobby the state - often in different directions - to take a particular stance at the negotiating table. In short, government negotiators must reach agreement at the dom estic level to define their preferences before they can negotiate in the multilateral arena. Putnam (1988, p434) has famously conceptualized this as a ‘two level gam e’: . . . at the national level, dom estic groups pursue their interests by pressuring the government to adopt favourable policies, and politicians seek pow er by constructing coalitions am ong those groups. At the international level, national governments seek to maxim ize their own ability to satisfy dom estic pressures, while minimizing the adverse consequences of foreign developm ents. Another distinguishing feature o f intergovernmental negotiations is that they are inherently repetitive - repeated gam es, in the language o f gam e theory. That is, ‘each government knows that it will always be engaged in negotiation’ (Ikle, 1964, p90) with other governments on a whole variety of topics within the broad intergovernmental arena for the foreseeable future. The dynamics of the specific negotiation at hand, therefore, will be influenced by, and will in turn im pact on, the w ider geop olitical netw ork o f relation ships and interactions between states beyond the particular problem under negotiation. Turning to the num ber of negotiators, the negotiation literature makes a m ajor distinction between two-party (bilateral) and more-than-two-party (multilateral) negotiations (e.g. see Raiffa, 1982; also Zartman, 1994). Am ong m ultilateral negotiations, M idgaard and U nderdal (1977) identify three different types: up to 7 parties (small), 7 -20 parties (intermediate) and 20+ parties (large). If M idgaard and U nderdal had been writing 20 years later when such negotiations had becom e much more common, they would probably have added a fourth category, that is, intergovernm ental negotiations whose potential scope includes all or almost all existing state governments. This type o f multilateral negotiation, which is also known in the literature as ‘conference diplom acy’ (e.g. Rittberger, 1983; Kaufm ann, 1989, 1996), is termed here a global negotiation (Krem enyuk and Lang, 1993). Two linked trends have seen the num ber and profile of global negotiations rise. Firstly, the emergence in the 1980s of environmental problem s with a global reach - such as stratospheric ozone depletion, biodiversity loss and, of course, climate change - triggered the launch o f negotiations open to all states (often under U N auspices) to agree legally binding instruments to tackle them. Secondly, during the 1990s, the U N convened a series of m ajor global

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confcrcnccs on far-rcaching topics o f global interest. These in cluded, for exam ple, sum m its on population (Cairo, 1994), w om en (Beijing, 1995), social developm ent (C openhagen, 1995), cities (Istanbul, 1996) and, o f course, the U N C onference on Environm ent and D evelopm ent - the Earth Sum m it - in Rio de Jan eiro in 1992. T h ese two trends reflected as m uch a belief in the prom ise o f m ultilateralism as a b asis for rebuilding international relations in the w ake o f the collapse o f the post-w ar E ast/W est divide as the truly global nature, or otherw ise, o f the prob lem s under negotiation.

C o m p le x ity and inequ ality A key defining characteristic of, and challenge for, global negotiations is their complexity (W inham, 1977; Zartm an, 1994; H am pson and H art, 1995). This com plexity takes many form s. The large num ber o f negotiating parties - that is, national governm ents - which are represented m eans a large potential range of different positions and p roposals to present, discuss and reconcile. W hile it is, of course, theoretically possible that even a large n um ber o f negotiating parties might share similar views, the fact that a negotiation is taking place at all implies disagreem ent, while the heterogeneity o f states, in terms o f their political, social, econom ic and geographical circum stances, increases the potential diversity of opinion. An im portant elem ent o f com plexity is that, unlike a bilateral negotiation w here n egotiators are clearly aw are o f who their oppon ent is and to whom they m ust target their negotiating strategies, there is no such inherent structure to a m ultilateral negotiation. N egotiators m ust seek to induce many counterparts with varying points o f view to adjust their preferences, decide to whom they should concede what, and assess what the knock-on effects that concession m ight have on the preferences o f the other counterparts, as well as on su pp ort from their dom estic constituencies. To ad d to the com plexity, governm ent delegations to a global negotiation usually consist o f m ore than one person (often very many m ore), w ho may them selves have differing personal views and negotiating styles. Although global negotiations take place am ong states, the n egotiators that represent those states are still hum an beings, and the personalities o f those hum an beings, along with the interactions am ong them, can be as im portant as it can in a bilateral negotiation betw een em ployee and b oss. A ccording to Lan g, ‘personalities determ ine the course o f negotiations. T h ese personalities are not abstract beings: They suffer from fatigue; they may lose their tem per; they may feel frustrated; they take pride in accom plishing a specific, arduou s task ’ (L an g, 1991, p389). T h e sheer num ber o f individuals present in a global negotiation, often n u m b erin g into the th o u san d s, in turn creates m assive o rgan ization al challenges in sim ply m aking sure that everyone is in the right place at the right time, w orking from the sam e agreed agenda in a com m on language with the n ecessary docum entation, and with the opportunity to express a view and be heard. Interaction am ong those individuals takes place am ong a wide variety of cultures, language grou p s and negotiating styles, creating obstacles to effective

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and con stru ctive co m m u n icatio n .2 A s K au fm an n n otes, ‘ the m ere m u ltip lication o f the n u m b er o f recipien ts o f m e ssag e s ren ders the establishm ent o f effective com m unication m uch m ore difficult in conference diplom acy than in traditional bilateral diplom acy’ (K aufm ann, 1989, p 173). T h e com plexity o f the social context in which n egotiators are operating m eans they m ust develop ‘short cu ts’ to m ake sense o f that context. N egotiators will therefore tend to stereotype each other, interpreting m essages they receive to bolster their existing (often negative) perception s rather than exploring the intended (often m ore positive) m eaning behind them. Any observer o f a global negotiation will pay testim ony to the perceptual distortions that often prevail, especially betw een grou p s that traditionally distrust each other, such as the developing country G ro u p o f 77 (G -77) and the industrialized states. A com m on tendency within global negotiations to try to cope with the com plexity of many parties is the form ation o f coalitions. T h ese may be m ore or less form ally articulated, ranging from coalitions who alm ost always negotiate together and speak with a single voice, to looser grou ps confining them selves to inform ation sharing. C oalitions can help to reduce som ew hat the com plexity o f a global negotiation by cutting down the num ber of p roposals or requests to speak. They introduce their own dynam ics, however, which may com plicate and slow dow n the negotiation process. In b asic terms, coalitions introduce a third level to the two level gam e, so that negotiating parties m ust reach agreem ent with their coalition, as well as with their dom estic constituencies, b efore com ing to the main negotiating table. Som e coalitions, especially large ones or those that negotiate in close unison, may find it difficult to reach agreem ent am ong them selves, or respond prom ptly to developm ents in the negotiations. Coalition positions also tend tow ards the low est com m on denom inator, and may entrench w ider political cleavages, such as the historical divide betw een developing and industrialized countries, as they take refuge in ideology or shared political history to cem ent their group loyalty. Alm ost by definition, a large num ber o f negotiating parties - even if they are organized into coalitions - im plies a large num ber o f issues on the table, as governm ents put forw ard different proposals. A ccordin g to H o m an s’ M axim ,’ a large n um ber o f issues could, in theory, generate greater potential for achieving an acceptable outcom e with joint gains for all. This potential, however, can often fail to be realized through sheer inability to m anage the resulting complexity. The com plexity o f global negotiations raises their transaction costs, that is, the costs incurred to reach agreem ent in physical and financial resources, hum an effort and time. T h is tendency to high transaction costs - in other w ords, inefficiency - o f global negotiations is well known, and is reflected in the stereotypical view that ‘m odern intergovernm ental conferences o f the U N G eneral A ssem bly ... are a w aste o f time, energy and m oney’ (K aufm ann, 1989, p i ) . T h e tendency to inefficiency is a m ajor challenge for global negotiations. A nother im portant feature o f global n egotiations is the inequality o f their participants. Unlike com plexity, inequality is not inherent to a negotiation with many parties, although it is very com m on. In a large negotiation, it is unlikely

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that all parties will p o ssess even roughly equal power, w hether defined in econom ic or political term s. In a global intergovernm ental negotiation, involving all the w orld’s states, inequality is pervasive, w hatever the issue under negotiation. The fundam ental differences in econom ic wealth and resources betw een states are in escapable, and affect the substantive leverage one country has over another. Smaller, poorer states may find unexpected sources o f pow er (e.g. m oral authority am ong the sm all island developing states in the climate change negotiations), but this rarely m akes up for their fundam ental lack of leverage in b ro ad er geopolitical and econom ic terms. Similarly, a one person delegation will, unless that person is extrem ely skilled (which som e are), find it m uch h arder to exert influence in a negotiation than a delegation o f 20 persons. Inequality, o f course, has a history, and this can contribute to m istrust am ong negotiating parties. An im portant dim ension o f inequality is its contrast with the fo rm a l equality o f nation states as sovereign entities within m ost international institutions. W hile sovereign states are all equal in international law, raising expectation s that they should be treated as such, in practice the differences am ong them in term s o f their political and econom ic pow er and capacities render it difficult to realize such form al equality.

Procedural inequ ity Substantive pow er inequalities tend to b e reflected in procedural inequity, that is, the unequal capacity o f parties to participate effectively in the negotiations. In m ost global negotiations, parties enjoy fo rm a l procedural equity, expressed through a one-state-one-vote system. In practice, however, the capacity of parties to participate in the negotiations, and therefore their practical proczdura\ equity, varies trem endously. A crude m easure o f this is delegation size. A large delegation m eans that m ore individuals are available to cover the many issues under negotiation, to build relationships with other parties and engage in behind the scenes talks, as well as to analyse the im plications o f p rop osals and develop well thought out positions b ased on them. Sm aller delegations find it much m ore difficult to negotiate effectively in this way, as they are spread much m ore thinly. The gap betw een form al procedural equality and practical procedural inequality p oses challenges to the success o f global negotiations. The legitim acy o f the process and the acceptability o f the outcom e may be com prom ised if the negotiations are not perceived as fair, while ‘countries that do not perceive a process to be fair have great pow er to obstruct it, ensuring that negotiations m ake little p ro g re ss’ (IP C C , 1996, p i 17).

T ran sp a renc y concerns Practical procedural inequity, coupled with com plexity, has a tendency to erode transparency in global negotiations. F aced with a large n um ber o f negotiating parties with many divergent views and pro p o sals on the table, the m ore pow erful countries, the big players, will often be tem pted sim ply to shut out their less pow erful negotiating adversaries to focus on discussin g what they con sider to be the key issues and options, and then ‘to confront the other partners with a

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finished agreem ent which it will be difficult to o p p o se ’ (Ikle, 1964, p l3 5 ). The fact that parties are typically negotiating from a position o f form al procedural equity expressed through sovereign equality, however, triggers a dem and for transparency, that is, for all negotiating parties to be involved in, or at least to be kept inform ed of, developm ents in the negotiations, and for all issues to be presented for debate in a fully open forum b efore they are decided upon. As Freym ond put it, ‘one o f today ’s challenges’ is therefore ‘how to reconcile the relatively greater efficiency o f a negotiation limited to selected parties with the “ d em ocratic” right o f sovereign states to be associated with decisions likely to affect them ’ (Freym ond, 1991, p 131). A s with procedural equity, m aintaining as much transparency as p o ssib le is im portant to uph olding the legitim acy and acceptability o f the process. N egotiators are m ore likely to feel a sense of ow nership o f an eventual agreem ent negotiated in a transparent manner, increasing the likelihood o f its ratification and im plem entation back home. A second dim ension to transparency - transparency relative to public scrutiny both inside and outside the conference venue - is a particular challenge for global environm ental negotiations, given the high degree of public interest in, and concern over, these issues. Indeed, global environm ental negotiations do tend to be m ore open to the public than negotiations on m ore traditional econom ic or security issues, or bilateral negotiations. ‘P u b lic’ in this regard includes N G O s , such as environm ental and b usiness grou p s and other advocacy or academ ic organizations, as well as the m edia, through which the interested public outside the conference venue is inform ed o f proceedings. M eeting dem ands for transparency can bring benefits to a global negotiation, poten tially increasing pressu re on n egotiators to reach agreem en t and p ro m o tin g even tual im p lem en tation . In ad d itio n , p a rticip a tio n by environm ental N G O s can provide a ‘voice for the environ m ent’, thus prom otin g an environm entally stronger agreem ent. P ublic transparency is also generally view ed as a go o d in itself, h oldin g representatives o f states accountable to their dom estic constituencies. T here is a dow nside to transparency, however. Pu blic scrutiny can m ake it m ore difficult for negotiators to climb down from their positions and explore p r o p o sa ls in a creative m anner, w hile m akin g p ro v isio n s fo r N G O particip atio n can also aggravate the com plexity and inefficiency o f a negotiation. T h is is especially the case as N G O s are them selves heterogeneous, and often seek to influence governm ent n egotiators in sharply contrasting ways. Som e may even seek to obstruct the process. T h is may generate what W ettestad calls ‘a classic dilem m a ... related to the conflicting general concerns for open ness and legitim acy versus decision-m aking effectiveness’ (W ettestad, 1999, p21). In deed, the debate over the extent to which negotiations should be secret or open is a longstanding one in the diplom atic arena (e.g. see N icolson, 1939, 1963; Ikle, 1964).

C o m p e titiv e n e s s A nother challenge arising from the com plexity and inequality that characterize global negotiations is a tendency to competitiveness. In cooperative behaviour,

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negotiators engage in joint problem solving to collaboratively explore solutions that achieve an integrative, or w in-w in, solution: in other w ords, joint gains for all. In com petitive behaviour, however, n egotiators engage in individualistic or positional bargaining, seeking to defend positions and extract m axim um gains from one another through a m ore con fron tational, w in -lose ap proach . C om petition and cooperation are not absolutes, o f course, and varying degrees o f both are possible. There is an assum ption in the literature that a m ore cooperative, problem solving ap proach is beneficial to a negotiation, being cap ab le o f reconciling m ore fully the preferences o f all parties, as well as generating better relations am ong them (e.g. see Fish er et al, 1992; U n derdal, 1991b). Com petitive behaviour, where a negotiation becom es a battlefield and other n egotiators are viewed as adversaries, is likely to exacerbate tendencies am ong n egotiators to want to save face or score points, reducing their w illingness to consider the p r o p o sa ls o f oth ers, c o n ce d e or acce p t c o m p ro m ise s. T h e poten tial disad v an tages o f com petitive behaviour are particularly high in global negotiations, w here inherent com plexity raises the transaction costs o f such an approach relative to cooperation. A s Fisher et al note, ‘the m ore people involved in a negotiation, the m ore serious the draw backs ... If som e 150 countries are negotiating, as in various U nited N ation s conferences, positional [com petitive] bargaining is next to im p ossib le’ (Fisher et al, 1992, p7). In order to reach agreem ent through com petitive behaviour, individual negotiators or coalitions will need to extract concessions from their many coun terparts, while each o f their counterparts are trying to do the sam e thing with the others. This m akes for a chaotic and tim e-consum ing p rocess, where the interests o f all parties are unlikely to be integrated. However, despite the theoretical potential for cooperation and the costs of com petitive behaviour, it is the latter approach that tends to dom inate in global negotiations, exacerbated by the m isunderstandings and con fused m essages that can prevail in a situation o f such complexity. A ccording to M artinez and Susskind: B argaining in the international arena is intrinsically positional [co m p e titiv e ]: n e go tiato rs . . . arrive . . . with carefully crafted m arching orders - from which they are not su p p o sed to deviate. T heir stated ‘positio n s’ are, for the m ost part, not open to revision w ithout consultation with . . . dom estic m inistries. Even though [n e g o tiato rs] recogn ize that the invention o f ad d itio n al ‘p ack ag e s’ m ight well produce better results for all sides, they are allow ed precious little leeway at the negotiating table. T h e risk that som ething offered in an inform al exploratory exchange m ight b e m isinterpreted as a com m itm ent or m isused by others is too great (M artinez and Susskin d, 2000, p571). At the extrem e end o f com petitiveness, there are cases where parties negotiate with the im plicit aim to obstruct agreem ent, what W allihan (1998) calls ‘avoidance bargain in g’ . Such parties tend to exert a disproportion ate influence

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on the negotiation. A s Fish er et al note, ‘the relative negotiating pow er o f two parties depen ds prim arily upon how attractive to each is the option o f not reaching agreem ent’ (Fisher et al, 1992, p l0 6 ). G iven that such obstructionist p artie s actively seek n on -agreem en t, their b argain in g leverage in the negotiation can be high.

R e g im e s and n e g o t ia t io n s G lo b al negotiations are often closely associated with the form ation and developm ent o f regimes, defined as sets o f both form al and inform al rules, institutions and procedures aim ed at governing action in a particular issue area, usually b ased on a foun din g treaty. Regim e form ation has becom e a pop u lar response to em erging global environm ental prob lem s over the past two d e c ad e s, with the estab lish m en t o f regim es to a d d re ss, fo r exam p le, stratospheric ozone depletion, clim ate change, biodiversity loss, desertification and persistent organic pollutants. Such regim es have been constructed through negotiations am ong states, usually within a w ider institutional setting, typically the U N or one o f its agencies or specialized bodies. O n ce established, regim es are rarely static. O n the contrary, m ost regim es are continuously evolving through decisions by their state parties. Such evolution may include, for exam ple, elaborating new legal texts based on the parent treaty such as protocols or am endm ents, a process that could be term ed regime strengthening. T h e m ore routine evolution o f regim es, which might be characterized as regime development, involves less m om entous, but still significant, decisions, such as the preparation of guidelines for national reporting or the establishm ent o f new expert bodies. The regime strengthening and developm ent processes again take place through the mechanism o f negotiation, based on the rules and institutional arrangem ents o f the regime, thus connecting regim es and negotiations in an iterative relationship. Another form o f negotiation that often accom panies regime developm ent or precedes regime strengthening is regime review, where the negotiating parties exercise oversight over how the regim e’s rules are working and being im plem ented. This can involve both routine review - for exam ple, considering the periodic national reports subm itted by parties - or a m ore wide ranging review o f the com m itm ents of parties or the functioning o f the regime, w hose results are expected to lead to a new round o f regime strengthening. In many cases, a continuous negotiation process em erges within a regim e. Indeed, an im portant function perform ed by regim es is precisely to provide an efficient fram ew ork for negotiations so that, as K eohane puts it, regim es becom e ‘devices to m ake agreem ents p o ssib le ’ (K eoh an e, 1989, p i l l ) . Regim es and n egotiations are therefore intimately related. Both are concerned with cooperation am ong states to ad d ress prob lem s o f interdependence but, while regim es draw attention predom inantly to the structure o f cooperation, negotiations are m ostly concerned with the process that unfolds based on that structure. N egotiation s within regim es thus have a special character. Like all intergovernm ental negotiations, they are repetitive, but m ore intensively so, often involving not only the sam e governm ents, but also the sam e individuals

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who regularly work together for many weeks, year after year. The negotiation process within the regime typically gives rise to its own set o f informal practices and procedures, even its own culture. While such intensively repeated games can provide important opportunities for learning and therefore improving ways of negotiating, the flipside is the danger of ossification; the negotiation process gets stuck in old ways of thinking and doing that drag down substan tive p rogress. The inherent com plexity o f global negotiations, com bined with the inequality o f participants, can block out new thinking and contribute to such entrenchment.

The o rga ni za t i on of g l o ba l n ego ti at i ons The focus of this book is on the organization of global negotiations, and how organizational factors can help (or not) to overcom e the challenges faced by global negotiations. Before proceeding further, we need to pin down exactly what is meant by ‘organization’ in this context. O rganizing a global negotiation involves m anaging a range of organizational elements. Organizational elements that tend to be o f particular im portance to global negotiations, and which are covered in this book, are as follows: • • • • • •

Rules for the conduct o f business and decision-making The use o f different arenas for negotiation and discussion (e.g. big/sm all, open/closed, inclusive/lim ited participation) The timing o f the negotiations The use o f negotiating texts Rules for high-level participation (e.g. by ministers) Rules for the participation of stakeholders (e.g. environmental N G O s, businesses).

This list o f elem ents is adm ittedly not com prehensive. The organization of the negotiation process is not an easy phenom enon to delimit (especially as there is little help in the literature on how to do this), and other organizational elem ents could also com e into play, such as the geographical venue o f a negotiation, the financing o f the regim e, the way parties organize them selves into coalitions and the com position of delegations. This book, however, focuses on what Young calls ‘decision variables’, that is, ‘factors which are subject to conscious control or m anipulation on the part o f those responsible for designing and m anaging international regim es’ (Young, 1994, p l5 2 ). It is generally not possib le, for exam ple, to m ake a collective decision reg ard in g the coalitio n s that p arties sh o u ld form or the com position o f their delegations, as this choice is b ased on individual, sovereign choice. If the aim is to im prove the organization o f negotiation processes, then it m akes sense to focus on those factors that can be subject to deliberate m anipulation.

The Organization o f G lobal N egotiations

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The g o v e rn a n c e of o rgan iza tion a l elements The management of the above-mentioned organizational elements does not take place in a vacuum. Instead, it is governed by a hierarchy of formal and informal institutions, and procedural rules.

Founding texts The founding treaty o f the regime will itself establish a set o f institutions within which subsequent negotiations take place, usually a Conference or M eeting of the Parties, with one or two subsidiary bodies. The founding treaty may also include a limited set o f procedural rules, such as voting majorities for decision­ m aking in specific circum stances, or basic rules for admitting N G O s. These are very stable organizational elements, which, inscribed as they are in a legal treaty, tend to be w ell-respected and rarely subject to change.

Rules o f procedure One o f the first acts o f the newly established Conference (or Meeting) o f the Parties4 to a regime will be to agree formal rules of procedure for itself and its subsidiary bodies. These will set out in more detail rules for the conduct of business and decision-making, the role o f presiding officers, the secretariat and bureau, and also procedures for the participation of observers. O nce agreed, these rules are likely to remain stable, although they may be subject to formal amendment.

Supplem entary decisions The rules of procedure may be supplem ented by additional decisions taken by the C O P or subsidiary bodies on organizational issues. These may be ad hoc decisions that apply only to a specific negotiating session (e.g. the form at for ministerial participation at the next C O P ) or more general decisions that apply to all subsequent sessions (e.g. access rules for closed negotiations).

Informal practices The form al procedural rules are rarely com prehensive, and are often com plem ented by informal practices that develop spontaneously over time. Informal practices may emerge to interpret am biguities and fill in gaps in the formal rules, or they may arise as actors im provise in response to changing circum stances. D ifferent informal practices will be more or less established. Som e may becom e as deeply entrenched as formal rules, while others may be used at just one or two negotiating sessions.

W ider institutional setting The formal and informal procedural rules at play in the w ider institutional setting - typically the U N G eneral Assem bly or other U N body or agency - will exert an im portant influence, not only on the shaping o f the above formal institutions, rules and p rocedures, but also on the interpretation and improvisation that surrounds them.

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W h o o r g a n iz e s? D iscussing the organization of a negotiation process begs the question ‘who organ izes?’ The organization of the negotiation process is indeed a conscious act. Form al rules - whether inscribed in a treaty, rules o f procedure or supplem entary decisions - are the products o f decisions taken by the negotiating parties, while the developm ent and application o f informal practices is also subject to the consent of the parties. However, the key individuals involved in the day-to-day organization o f a negotiation are typically its presiding officers, bureau and secretariat, to whom the negotiating parties delegate organizational decision-making. The basic roles, functions and scope of authority o f these organizers are themselves established in the founding texts and rules o f procedure of the regime, som etim es elaborated on in supplem entary decisions, and put into play through im provisation, interpretation and informal practices. D epending on their skills and attributes, and the needs o f the negotiations, the organizers can assum e very im portant roles in supplying process-oriented leadership, or organizational energy, to the process. Process-oriented leadership (W ettestad, 1999) refers to leadership seeking to prom ote the broad success of a negotiation. It is therefore distinct from substantive leadership aimed at furthering a particular outcom e desired by the leader, which would m ore likely be exercised by a negotiating governm ent. E xercisin g process-oriented leadership can be a key task of presiding officers and, to a lesser extent, the bureau, especially in the context o f a vacuum in (more often substantive) leadership on the part o f any party. A related, more expansive means o f conceptualizing process-oriented leadership is in terms o f the provision o f organizational energy (see U nderdal, 2002). Leadership requires ‘follow ership’ (Rubin, 1991); that is, it is a selfconscious act of taking control whereby followers know and consent to being led. The supply of organizational energy, however, can be more subtle and diffuse, being injected by actors seeking to prom ote the negotiating goal but without assum ing, and som etim es deliberately eschewing, the mantle of explicit leadership. This encapsulates well the role o f the secretariat, and also applies to the bureau, whose lower profile work is typically practised behind closed doors, rather than through the public acts of leadership characteristic of presiding officers. There is, o f course, a fine line between energy and leadership. While it is interesting analytically to distinguish between these, the key point is that both involve providing process-oriented and organizational input to the negotiation process that is aimed at advancing its success. The organization o f the negotiation process is certainly not a neutral or purely technical act. H ow a negotiation is organized can influence not only the effectiveness o f the process, but also the relative advantages o f individual negotiating parties. This is reflected in the notion of ‘organizationally dependent capabilities’ (Keohane and Nye, 1977; Keohane, 1993), which draws attention to the fact that the particular structure o f regimes and, by extension, the organization o f the negotiation process, can bring relative advantage to som e actors and disadvantage to others, for exam ple, through its

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decision-m aking procedures or use o f closed versus open forum s. Certain aspects o f the organization o f the negotiation process can thus becom e hotly debated, as parties prom ote organizational form s in strategic ways to advance their interests or use organizational issues as an outlet for national positions and grievances.

S u m m a r y a nd c o nc l u d i n g r emarks In summary, the organization o f the negotiation p rocess consists o f several layers o f m ore or less form al sets o f institutional arrangem ents, procedural rules and inform al practices, which are actively organized by parties, but especially by the organizers o f the negotiation p rocess - the presiding officers, bureau and secretariat. T h is b ook explores how organizational factors have been used in different ways over the history o f the climate change regim e to try to overcom e the challenges o f global negotiations. T h ese challenges, as d iscu ssed above, are centred on com plexity and inequality, generating dilem m as relating to p ro ce d u ral equity, tran sparen cy and tendency to com petitive behaviour.

The Challenges of the Climate Change Negotiations

It was the m other o f all negotiations1

Introduction This chapter provides an introduction to the climate change negotiations, drawing on the framework for understanding global negotiations set out in Chapter 2. It begins by outlining the nature o f the climate change problem and the characteristics that render it particularly difficult to address. The chapter then turns to the climate change negotiations themselves. Although the focus o f this book is on the period 1995 to 2001, incorporating the Kyoto Protocol negotiations and the post-Kyoto process that followed, the chapter includes a comprehensive overview of the negotiation process from its inception to the present day. We then explore the challenges posed by the climate change negotiations, revolving around the themes of complexity and inequality, and how these challenges have evolved over time. These are the challenges that the organizers o f the negotiation process must deal with in order to prom ote successful outcom es.

The climate c h an ge problem Climate change is commonly viewed as a uniquely ‘m align’ problem (see W ettestad, 1999; Miles et al, 2002), presenting ‘the decision maker with a set of form idable com plications’ (IP C C , 1996, p7). While there is a tendency for all negotiators to see ‘their’ issue as the most difficult in the international arena, climate change does have a good case for this distinction.2 Firstly, climate change is the most global of the global environmental problem s. G reenhouse gas (G H G ) em issions are well m ixed in the atmosphere, which means that there is no relation between the geographical location of em issions and their eventual effects. All countries, therefore, are potential victims of climate change, although their vulnerability will differ considerably depending on their geographical circum stances and econom ic wealth (Yamin and D epledge, 2004). Moreover, the global pervasiveness o f the main drivers of climate change - fuel com bustion and land-use change - means that all

The Challenges o f the Climate Change N egotiations

19

countries, all regions, and all individuals have the potential to contribute to the problem , even though, as discussed below, they do so to varying extents. This means that, to develop an effective response to climate change, the negotiations do need to involve all the w orld’s states, or at least a critical mass o f those most responsible for, and potentially vulnerable to, the problem . Uncertainty, both scientific and economic, is a pervasive and very difficult feature of decision-making on climate change. From a scientific perspective, the climate system is immensely com plex, naturally variable and chaotic, while multiple feedback mechanisms, both positive and negative, are at work. The concentration o f G F IG s in the atmosphere is only one factor among many (e.g. ocean currents and solar radiation) determining global temperatures, so that it is difficult to identify the signal of human interference against the background noise of natural climate variability. Estimating how average global temperature trends will translate to changes in local weather patterns, such as rainfall and the incidence of weather extremes, is particularly complex. Uncertainty is thus com pounded by indeterminacy, so that causally linking a potential climate catastrophe to carbon emissions from, for exam ple, the family car is a difficult task. Uncertainty also reigns over how to respond to climate change. The predicted costs o f achieving various emission targets, as well as the costs of climate change impacts, depend on the assumptions and methodologies of the economic models used, and therefore vary greatly. According to the Intergovernmental Panel on Climate Change (IPCC), ‘estimates have spanned such a wide range that they have been of limited value to policy making’ (IPCC, 1996, p303). In addition to the well-known problem of differing assumptions and methodologies, the sheer nature o f climate change poses real challenges for conventional economic analyses, including its long time-lags, equity dimensions, and potential for catastrophic change, as described below.* The pervasiveness o f fossil fuel com bustion and land-use change, the two m ajor drivers of climate change, means that the problem is im plicated in alm ost every human activity. G H G s are emitted from a myriad small and large sources, from power plants to private cars, paddy fields to gas cookers, aluminium smelters to land-fill sites.4 There is, therefore, no single identifiable cause o f climate change and no single salient solution. The ubiquity of the causes of climate change, in turn, means that alm ost any group within civil society could be considered a stakeholder, thereby generating great public interest in the topic, even by the high standards o f global environmental issues. The econom ic im plications o f climate change have, in particular, motivated a strong presence on the part o f business and industry groups. As Barrett and Cham bers comment: international climate change negotiations have involved a greater num ber o f actors as well as many more kinds o f actors than any o f the num erous sets o f multilateral negotiations that have occurred in the post-war era (Barrett and Cham bers, 1998, p l5 ). Climate change has a very long time horizon due to the inertia o f the climate system and the long lifetim e o f som e G H G s .5 This raises issu es of

20

The Organization o f G lob al Negotiations

intcrgcncrational equity, as it is future generations that will suffer the worst consequences o f past and present em issions.*' Conversely, mitigation o f climate change calls on present generations to incur short-term costs whose long-term benefits will only be enjoyed by future generations, creating disincentives to action in the present. The long time-lags involved have also created a sense of unreality about climate change, which has rendered it more difficult to persuade policy-makers and the public to take the problem s seriously. Climate change is fundamentally a developm ent issue, as indeed are all global environmental problem s. The developm ent dimension o f climate change is, however, particularly acute, given that fuel com bustion and land-use change are intimately entwined with the process of modernization. Climate change thus challenges the m ode o f developm ent followed since the industrial revolution. Although views differ over the costs of climate change mitigation, the changes required to prevailing econom ic and social structures and dynamics are indisputably great, and the political stakes - in both addressing climate change and not doing so - are therefore high. Another aspect of the developm ent dimension of climate change is its inherent unfairness, which raises further questions o f equity. The smallest contributors to climate change, generally the poorer developing countries, are also the most vulnerable to climate change im pacts, as they tend to be more reliant on agriculture, have weaker infrastructure and lack the resources to take adaptation m easures, such as building sea defences. Many are also located in geographically vulnerable regions (e.g. low lying coastal zones), or are already suffering from environm ental stress (e.g. from desertification or overpopu lation ). By con trast, the larger em itters, m ostly the richer industrialized countries, are typically less vulnerable, possessing modern economies that do not rely so much on the vagaries o f the weather, more resilient infrastructure and more abundant resources to adapt. As G rubb provocatively puts it, ‘greenhouse gas em issions involve the rich imposing risks upon the poorer and more vulnerable’ (G rub b, 1995, p467). Finally, an im portant characteristic of climate change is the potential for irreversible and catastrophic change. Irreversibility is a function of the long time-lags involved, which mean that climate change could not be reversed in human time spans, while concern over catastrophic change is based on the possibility that rising atm ospheric concentrations o f G H G s could force the climate system into a different state in the relative short-term. Rising average global tem peratures could, for exam ple, force the G u lf Stream to change course or shut down altogether, thus leading to dramatic cooling in northern E urope, or large ice m asses, notably the West Antarctic ice sheet, could collapse, generating m assive sea level rise. The 2001 IP C C Assessm ent suggests that, while very unlikely this century, rising em issions over the next few decades could set these catastrophic events in motion. This potential for catastrophic change, w hose im pact w ould be immense but whose likelihood is uncertain, is particularly difficult for policy makers to integrate into their decision-making.

The C hallenges o f Clim ate Change N egotiations

21

The climate c h a n g e n e g o t i a t i o n s a n d the climate c h a n g e r eg ime D espite its uniquely malign characteristics, governm ents were able to agree a regime, and em bark on a continuous negotiation process centred on that regime, to address the problem o f climate change.’ The nature and structure o f the climate change regime, and the phases o f the climate change negotiation process to date, are discussed below. The focus o f this book is on the period since the entry into force o f the U N F C C C and the first Conference o f the Parties (C O P 1) in 1995, that is, com prising the Kyoto Protocol negotiations, the post-Kyoto negotiations, and latterly the post-M arrakesh negotiations (see summary in Table 3.1). F or the sake o f com pleteness, however, and to provide the necessary contextual and chronological background, the overview below also discusses the earlier phases of regime building, developm ent and review up to C O P 1.

Regim e building. The f o u n d a tio n years: 1 9 9 0 -1 9 9 2 In D ecem ber 1990, the United N ations G eneral Assem bly (U N G A ) launched negotiations on a fram ework convention on climate change to provide the foun da­ tion for a global climate change regime. These regim e-building negotiations lasted nearly 18 months, culminating in the adoption o f the U N F C C C on 9 May 1992. Key elements o f the U N F C C C are sum m arized in Box 3.1 below.8

Box 3.1 K e y e le m e n ts o f the UN F r a m e w o r k C o n v e n t io n on C lim a te C h a n g e • •

•

de fi ne s an ultimate objective a nd principles. divides co un tries into: -

A n n e x I ( O E C D co un tries a nd e c o n o m ie s in transition - (EITs))

-

A n n e x II ( O E C D co unt ries only); and

-

N o n - A n n e x I (mostly d e v e lo p in g countries).

all parties:' g e n e r a l c o m m it m e nts, in clu din g o b l ig a t io n s to pr epa re n atio nal c o m m unica tio ns .

• •

A n n e x I parties: specific ' a i m ' to return e m is sions to 1990 levels by 2000. A n n e x II parties: m ust pro vid e financial assistance to d e v e lo p in g countries, an d also p r o m o t e t e c h n o l o g y transfer, incl udin g to EITs.

•

pro vi sio n s fo r r eg u la r review o f the C o n v e n t io n , incl udin g a review process to assess the 'a d e q u a c y ' o f A n n e x I party c o m m it m e n t s at C O P 1 a nd thereafter.

Source: A d a p t e d from Y a m in an d D e p l e d g e (2004) Note: ’ C ou n tr ie s that have ratified the C o n v e n t io n are k n o w n as 'Parties'

T h ese initial regim e-building negotiations were conducted under the au sp ices of the U N G A , and were therefore organized b ased on that b o d y ’s form al procedural rules and inform al practices. D raw ing on the U N G A in this way

22

The Organization o f G lob al Negotiations

subsequently influenced the establishment and evolution o f the climate change regim e’s own procedural rules and practices. These early regime-building negotiations also began to throw light on the political dynamics and key issues that would shape the continuous climate change negotiation process to this day. Notwithstanding the controversies and divisions that characterized them, the early days o f the climate change negotiations took place against a background of considerable attention and optimism surrounding the commitment and ability of the international community to tackle global environmental problem s. This came to a head at the Ju n e 1992 Earth Summ it, where the U N F C C C was signed by 154 countries (and the European Community), including the United States. The U N F C C C thus becam e one o f the three Rio Conventions, including the 1992 Convention on Biological Diversity that was also signed at the Earth Summ it, and the 1994 UN Convention to Com bat D esertification whose negotiation was launched in Rio de Janeiro. A s well as defining substantive com m itm ents, the U N F C C C also established the basic institutional structure o f the climate change regime, including: a suprem e decision-making body - the C O P ; two subsidiary bodies that provide advice to the C O P - the Subsidiary Body for Scientific and Technological Advice (SBSTA ) and the Subsidiary Body for Implementation (SBI); and a secretariat, serving both the C O P and the subsidiary bodies. This basic institutional structure, depicted in Figure 3.1 above, has provided the setting for subsequent negotiations within the climate change regime that continue to this day.9

Regim e d e v e lo p m e n t and review. The p ro m pt start nego tia tio ns and review of adequacy: 1992-1 9 9 5 This first phase of regime developm ent unfolded pending the entry into force o f the Convention and the holding of C O P 1, which was m andated to take place within a year o f entry into force. These regime developm ent negotiations,

The Challenges o f the C lim ate C hange N egotiations

23

characterized as a ‘prom pt start’ to the im plem entation o f the Convention, focused on drafting decisions that w ould enable the Convention to be put into practice. This included, for exam ple, drafting guidelines for A nnex I parties to follow when preparing their first national com m unications (in other w ords, national reports) and a p rocess for reviewing those reports; launching a pilot phase o f activities im plem ented jointly (based on Convention provisions on the controversial concept o f joint im plem entation - see below ); setting out arrangem ents for cooperation with the G lob al Environm ent Facility (G E F ), as the operator o f the C onvention’s financial m echanism ; detailing the respective roles o f the two subsidiary bodies; and trying (in vain - see below ) to agree rules o f procedure. T h is prom pt start regim e developm ent phase culm inated with the entry into force o f the Convention in M arch 1994, and the adoption o f a set o f decisions at C O P 1 in April 1995. Although regim e developm ent generated the greatest volum e o f w ork for this phase, the m ost politically charged aspect o f the negotiating round in fact involved regim e review. T h e C onvention required C O P 1 to ‘review the ad eq uacy ’ o f the com m itm ents o f the A nnex I parties, and the negotiating parties as a w hole were therefore required to negotiate a response to this.

R e g im e stre n g t h e n in g . The K y o t o Protocol ne go tia tio n s: 1 9 9 5 -1 9 9 7 W hile the ad option o f regim e-developm en t d ecision s w as a key featu re of C O P 1, the C on feren ce will b e b e st rem em bered for its decision to launch a new round o f n egotiation s aim ed at stren gth en ing the com m itm ents o f in dustrialized coun tries, as a result o f the above-m entioned review o f adequacy. T h is decision , known as the Berlin M andate after the host city o f C O P 1, w as extrem ely hotly d e b ate d , but eventually establish ed that the new round o f n egotiation s w ould focus on setting ‘quan tified em ission lim itation and reduction o b jectiv e s’ (in other w ords, em ission targets) fo r in dustrialized countries, b u t w ould not im pose any new com m itm ents on developing countries. T h e rep ercu ssion s o f this landm ark decision , which steered the clim ate change negotiation p ro c e ss in exorably dow n a particular path, still reverberate strongly today. T h e deadlin e for these n egotiation s w as set as C O P 3. W hile a degree o f m ore routine regim e developm ent continued between C O P 1 in 1995 and C O P 3 in 1997, it was regim e strengthening that overwhelmingly dom inated the negotiation process. T h e K yoto Protocol negotiations w ere con ducted within the specially convened A d f lo e G ro u p on the Berlin M andate (A G B M ), a body open to participation by all parties, which m et eight tim es over the 32-m onth period. T h e geop olitical con text fo r the K yoto P ro to co l n egotiation s continued to be positive (Yamin and D ep le d ge , 2 0 0 4 ), with an actively en gaged U S adm inistration , for exam ple, although cracks w ere beginning to show. The realization on the part o f m any A nnex I p arties that curb in g their em issions w ould be h ard er than they h ad h o p ed , and signs o f a dow nturn in the glo bal econom y, cast a sh adow over the negotiation roun d. T h e ‘fin ale’ o f the

24

The O rganization o f G lo b a l N egotiation s

n e go tiatin g ro u n d to o k p lace at C O P 3 itself, w h ere the K y o to P ro to c o l w as even tually a d o p te d m o re than 12 h o u rs after the sc h e d u le d en d o f the co n feren ce. T h e K y o to P ro to c o l re p re se n ts a c o n sid e rab le stren gth en in g o f the clim ate ch an ge regim e, in tro d u cin g qu an titativ e em ission targ e ts fo r all in d u strialize d co u n trie s, alo n g w ith a series o f flexib ility m e ch an ism s to h elp co u n tries m eet th ose targ e ts an d a set o f m ore strin g en t m on ito rin g, review an d co m p lia n c e p ro c e d u re s. K ey fe atu re s o f the K y o to P ro to c o l are ou tlin ed in B o x 3 .2 .10 T h e K y o to P ro to c o l w ill u se the sam e b a sic in stitu tion al stru ctu re as the C o n v e n tio n , w ith the U N F C C C C O P servin g as the m eetin g o f the p a rtie s to the K y o to P ro to c o l, creatin g a b o d y kn ow n as the ‘C O P /M O P ’ . S ou rce: A d a p t e d fr o m Y a m i n a n d D e p l e d g e (2004)

B o x 3.2 K e y e le m e n t s o f th e K y o t o P ro to c o l •

all parties: g e n e r a l c o m m it m e n t s .

•

A n n e x I parties: in d iv id u a l e m is sio n targets, a d d i n g u p to a t ot al

cut o f 5

p e r cent. T a rg ets r a n g e fr o m - 8 p e r ce nt (m o s t c o un t rie s ) to + 1 0

per

cent, a n d are listed in A n n e x B. •

e m is sio n targ ets: -

co v e r c a r b o n dio xid e , m e t h a n e , n it r o u s oxide, h y d r o f l u o r o c a r b o n s , p e r f l u o r o c a r b o n s a n d s u l p h u r h e xa flo rid e , c o u n t e d t o g e t h e r as a ba sket.

-

also c o v e r certain c a r b o n s e q u e s t r a t io n activities - the la nd use, la nduse c h a n g e a n d fo re str y ( L U L U C F) se cto r - b a se d o n specific rules.

•

-

in m o s t cases, use 199 0 as a baseline.

-

m u s t be m e t by t he 'c o m m i t m e n t p e r i o d ' 2 0 0 8 — 2012.

flexibility m e c h a n i s m s ’ -

j oi nt i m p l e m e n t a t i o n (JI), clean d e v e l o p m e n t m e c h a n is m ( C D M ) a n d e m is s io n s t r a d i n g - can be used to he lp m e e t ta rg ets.

G roups

of

co u n t rie s can also m e e t t a r g e t s j oi ntly (so far, o n l y in v o k e d by

th e

EU). •

stricter r e p o r t i n g a n d re vie w p r o c e d u r e s f o r A n n e x I parties.

•

c o m p l ia n c e syst em to a d d r e ss cases o f n o n - c o m p l i a n c e w it h th e

•

r e g u l a r r e v ie w s o f c o m m it m e n t s .

Protocol .

Note: 1 Th e t erm 'flexibility m e c h a n i s m s ' is no t used in the climate c h a n g e n e g o t i a ­ tio n s themselve s, w h ic h refer ins tead to the m o re ne utra l ' K y o t o m e c h a n is m s '

R e g im e d e v e lo p m e n t . The p o s t - K y o t o n e go tia tio n s : 1 9 9 8 -2 0 0 1 T h e con clusion o f the K y oto P ro to co l n egotiation s led directly to anoth er n egotiatin g ro u n d , with the decision ad o p tin g the K y o to P ro to co l at C O P 3 (decision 1/C P.3) calling for furth er w ork on the three flexibility m ech an ism s,11 as w ell as the P ro to c o l’s provisio n s on L U L U C F and on the im p act o f single p ro je c ts.’2 In p ractice, how ever, the p ost-K y o to n egotiation s did not really start

The Challenges o f the C lim ate C hange N egotiations

25

until C O P 4 in 1998, when the so-called B uen os A ires Plan o f Action (BAPA) w as ad opted . In essence, the BA PA extended the remit o f the post-K yoto negotiations to encom pass decisions on all the im plem entation rules o f the K yoto Protocol, akin to the C onvention’s prom pt start process (described above). In parallel, the BA PA also launched negotiations aim ed at further developing the Convention, including on such topics as financial assistance, technology transfer and the special circum stances o f particularly vulnerable developing countries. Although the deadline was not so clearly articulated, the e x p e ctatio n grew that this m am m oth n e gotiatin g roun d on b oth the Convention and the Protocol w ould result in a package deal on all these regim e developm ent issues at C O P 6 in 2000. W hereas the K yoto negotiations were con ducted in a single, specially convened forum (the A G B M ), the post-K yoto negotiations took place in the existing subsidiary b odies (see Figure 3.1), plus a ‘joint w orking g ro u p ’ set up by C O P 4 to con duct negotiations on a com pliance system. W hile it is indeed ap pro priate to characterize these negotiations under the BA PA as a ‘regim e developm en t’ round, it is also true that, at least in the case o f their K y oto P ro to c o l co m p o n en t, they did involve an elem ent o f strengthening, or indeed w eakening, as the specific rules concerning such provisions as the flexibility m echanism s and L U L U C F w ould m ake a real difference to the effort required by Annex I parties to meet their em ission targets. A degree o f regim e review also continued as the C O P considered the national com m unications o f A nnex I parties, but very little im portance was attached to this com pared with regim e developm ent. This negotiating round had, in effect, three finales. The first w as at the scheduled end point o f the negotiations, at C O P 6 in T h e H agu e in N ovem ber 2000. T h is finale fam ously ended in ignom inious collapse, with no package deal and no agreem ent on m ost of the individual issues under negotiation. C O P 6, however, w as resum ed eight m onths later in Bonn in Ju ly 2001, where a political deal w as reached on the so-called ‘crunch issu es’ - the key controversial questions - in a decision known as the Bonn Agreem ents (decision 5/C P .6). In N ovem b er that year, at C O P 7 in M arrakesh, the 14 page Bonn A greem ents were supplem ented by the M arrakesh A ccords (decisions 22 4/C P .7), incorporating over 210 pages o f detailed rules an d /o r guidelines on all the BA PA issues. T h is m arked the close o f the post-K yoto negotiations under the BA PA , although a few outstanding issues did carry over to C O P 8 in 2002 and even C O P 9 in 2003, notably specific technical asp ects o f the guidelines for reporting under the Protocol, and the m ore political question of the treatm ent o f the forestry sector in C D M projects. Two im portant events in the w ider geopolitical environm ent helped shape the post-K yoto negotiations (Yamin and D ep ledge, 2004). T h e first w as the entrenchm ent o f the w id esp read glo b al econ om ic slow dow n, including dram atic crises in many o f the ‘Asian T igers’ and Latin Am erican econom ies. T h e secon d w as the 2000 U S elections, which brough t the Republican G eorge W. Bush to the W hite H o u se, rather than the environm entalist D em ocrat Al G ore. The elections took place just a week before the opening o f C O P 6 and, due to disputes over the counting o f votes, it w as unclear for m uch o f the

26

The Organization o f G lob al Negotiations

conference who the new U S President w ould be. Before C O P 6 resum ed in July 2001, President Bush had repudiated the Kyoto Protocol (but not the Convention). The US rejection o f the Kyoto Protocol, however, seemed to galvanize rather than dishearten most of the remaining Convention parties, who went on to adopt the Bonn Agreements, and later the M arrakesh Accords. C O P 6 (part II), and to a lesser extent C O P 7, concluded on a tide o f optimism that the Kyoto Protocol could be brought into force and m ade to work, even without the participation o f the US or its climate change ally, Australia.

Regim e developm ent. The p o s t-M a rra k e s h n e go tiatio ns (2002 to date) The post-Kyoto negotiations have not been followed by a clear new phase. The climate change negotiation process has certainly continued, with a heavy agenda of work at C O P 8 and C O P 9. These negotiations have continued to develop the regime further, putting into practice the M arrakesh A ccords, reviewing the im plem entation o f com m itm ents (through con sideration o f national com m unications), and tying up loose ends o f the post-Kyoto negotiations. These regime developm ent negotiations, however, have had no clear overall direction or goal, unlike previous negotiating rounds. There are two reasons for this. Firstly, the natural result of the adoption o f the M arrakesh A ccords, and their conclusion of the details o f the Kyoto P rotocol’s rules, was for the regime to enter an implementation phase, with Annex I parties focused on meeting their emission targets and otherwise putting the Protocol into practice. This focus on implementation was blurred to a large extent by the delay in securing sufficient ratifications for the Kyoto Protocol to enter into force, notably prevarication by the Russian Federation. However, the entry into force o f the Protocol in February 2005 prom ises to launch a true implementation phase. Another related reason why the climate change negotiations have seemed to enter into a period of relative stagnation is the inability of the parties to launch a new regimestrengthening negotiating round. While most Annex I parties have long called for new negotiations to strengthen the commitments o f developing countries, the resistance of developing countries to doing so shows no sign of diminishing, and indeed has hardened with the delay in entry into force o f the Kyoto Protocol and the extremely m odest progress made by m ajor emitters in stemming their rising G H G emissions. The hope is that the entry into force o f the Kyoto Protocol, and its effective implementation by Annex I parties, may help to break the political deadlock.

The chal lenges of the climate c h an ge n ego ti at i o ns As d iscu ssed in C h apter 2, two defining characteristics o f global intergovernmental negotiations are com plexity and inequality. The climate change negotiations exemplify these characteristics absolutely, exacerbated by the malign nature o f climate change itself, as outlined above. This raises challenges to the successful unfolding of the climate change negotiations.

Table 3.1 The three main phases of the climate change negotiations P e rio d

P h a se a n d m e e t in g h e ld

S u m m a ry

1995-1997

Kyoto Protocol negotiations

Negotiations launched by the 'Berlin M a n d a te ' ar COP 1 that led to the adoption of the Kyoto Protocol at COP 3. Negotiations on the Kyoto Protocol conducted in the A G B M . The SBSTA and SBI also met to develop the Convention provisions further. The ad hoc grou p on Article 13 (AG13) was convened to negotiate a multilateral consultative process (ultimately unsuccessfully).

1995 - COP 1; A G B M 1-2; SBSTA/SBI 1; AG 13 1 1996 - COP 2; A G B M 3-5; SBSTA/SBI 2 - 4 ; AG 13 2-3 1997 - COP 3; A G B M 6-8; SBSTA/SBI 5 - 7 ; A G 13 4-5

1998-2001

Post-Kyoto negotiations 1998 1999 2000 2001

2002-

- COP -C O P - COP - COP

4; SBSTA/SBI 8-9; AG 13 6 5; SBSTA/SBI 10-11 6; SBSTA/SBI 12-13 (parts I and II). 6 (part II), COP 7; SBSTA/SBI 14-15

Post-Marrakesh negotiations

2002 - COP 8; SBSTA/SBI 16-17 2003 - COP 9; SBSTA/SBI 18-19

Negotiations on the details of the Kyoto Protocol, as well as the im plem entation of the Convention, based on the 'B ue nos Aires Plan of A ction' adopted at COP 4. These negotiations, conducted in the SBSTA and SBI, failed to conclude as scheduled at COP 6. COP 6 (part II) reached agreem ent on a political deal covering the key political issues - the 'B on n Agreem ents'. The more technical details were agreed at COP 7 in the 'M arrake sh Accords'. Continuing negotiations on the routine developm ent o f the Convention and Kyoto Protocol under the subsidiary bodies.

28

The O rganization o f G lo b al N egotiations

In com m on with all global p rocesses, the clim ate change negotiations are rendered com plex by the many parties involved. The U N F C C C states that m em bership o f the regim e is open to any State m em ber o f the U N , or its specialized agencies or the International A tom ic Energy Agency. The num ber o f parties to the U N F C C C has risen from 118 at the time o f C O P 1, to 189 at C O P 9. M ore than 80 per cent o f these parties are represented at the negotiating sessions them selves. Since C O P 3, every C O P session has enjoyed participation by m ore than 150 parties, with a peak o f 179 at C O P 6 (part I). Each party is represented by a delegation. T h e size o f delegations ranges from just one or two m em bers from many sm aller developing countries to m ore than 20, and som etim es many m ore for ‘m ega delegation s’ such as those regularly fielded by the U S, C an ada or Ja p a n . The n um ber o f individual country delegates at negotiating session s has exceeded 1300 at every C O P session since C O P 3, and has hovered betw een 6 0 0 -8 0 0 at every subsidiary body session. The high point w as at C O P 3 with nearly 3000 individual country delegates. The potential for a large range o f preferences and pro p o sals inherent in a global negotiation is certainly realized in the clim ate change context by the diversity o f sp e cific n ation al c ircu m stan ce s relative to the p ro b lem , su p e rim p o se d on b ro a d e r in equalities o f w ealth, pow er and stage o f developm ent. D iffering degrees o f vulnerability to climate change im pacts, econom ic depen dence on the sale o f fossil fuels, and em issions per capita or per unit o f G D P , are m ajor variables that split both the developed and the developing countries (see B o x 3.3). As noted in C h apter 2, however, intangible values and principles are often as im portant as tangible perceived interests in shaping a n egotiator’s position. In the context o f clim ate change, these values and principles tend to revolve around the follow ing (see also B o x 3.3): • • •

the im portance attached to environm ental protection attitudes to multilateral cooperation in general, including levels o f trust and geopolitical relations with other nations b ro ad perception s o f the m erits o f different policy instrum ents (notably attitudes to m arket m echanism s, for exam ple, em issions trading versus governm ent regulation).

Th ese them es are not exclusive to clim ate change, but also tend to feature prom inently in deb ates on other global environm ental issues. The substantive inequalities in wealth and pow er am ong parties to the climate change regim e are reflected in procedural inequalities in term s of negotiating capacity, which crudely correlate with delegation size. Sm all delegation size is usually both a cause and sym ptom o f a b road er paucity of resources, including a narrow er breadth o f expertise and lack o f preparation time for negotiating sessions. O n e developing country interviewee recalled: ‘O u r delegation in K yoto, there were two o f us. A nd the first p e rso n ... d id n ’t really know ab out the negotiations. So I w as alone, running b ack w ards and forw ards, m aking con tacts... It w as a lot o f w ork ...I t ’s difficult.’ The difficulties faced by sm aller delegations in participatin g effectively in the negotiations are illustrated pow erfully by Figure 3.2 below.

The Challenges o f the C lim ate C hange N egotiations

29

v POPULOH 99

Source: ECO (1997b)

F ig u r e 3.2 International treaty-making: A m odel fo r global democracy Akin to alm ost all global negotiation processes, a num ber o f negotiating coalitions are active in the climate change negotiations, and these play an im portant role in shaping the dynamics o f the climate change process (Yamin and D epledge, 2004). Som e o f these coalitions are specific to the climate change context, while others are at w ork also in other arenas (see Box 3.3). Som e are founded m ore on values and principles, often with a com m on historical link, while others arc based more on shared national circum stances. The coalitions also have different degrees of cohesion, with som e speaking with one voice, and others sticking to m ore informal information sharing. The pattern o f coalitions in the climate change regime has not remained static, but has evolved over time, with new coalitions form ing and others disbanding in response to developm ents in the regime. This is a case where there is a clear iterative relationship with the organization o f the negotiation process. As we shall see in Chapter 9, recent trends in the way in which negotiating arenas in the climate change process have been organized have triggered an increase in the num ber o f active negotiating coalitions. T h e com plexity o f many diverse parties and their varying preferences are m irrored, and accentuated, in the N G O s that are active in the clim ate change process. As discussed further in C h apter 14, these cover a very w ide range of in te re sts, in clu d in g en viron m en tal N G O s , b u sin e ss and in dustry representatives, indigenous p eop les, faith grou p s and academ ics. W hile N G O s do not actually negotiate, they contribute to the com plexity o f the process in many ways. N G O s ad d to the (contradictory) pressures on parties that influence negotiating positions, they require channels through which to com m unicate their views and feed into the negotiation p rocess, and the sheer larger n u m b er o f p e o p le (w ho m ust also be treated differen tly to representatives o f parties) creates logistical challenges (e.g. dem and for m eeting room s, seating, security). A different group o f non-state organizations are the intergovernm ental

30

The Organization o f Global Negotiations

B o x 3.3 M a j o r c o a lit io n s in th e c lim a t e c h a n g e r e g im e a n d th e ir b a sic p o s it io n s G roup o f 77 a n d China: The G-77 is the main coalition of d e v e lo p in g countries in the UN system. China often allies itself with the Group, which n u m b e rs 132 members. The G-77 w as fo rm e d in 1964 du rin g n e go tia tio n s on a 'N e w Inte rn a tio n a l

E c o n o m ic

Order'

explicitly to

co u n te r th e

m ig h t

of the

develo ped world. This history, c o m b in e d with persistent inequalities and the d e v e lo p m e n t a n d equity dim e n sio n s of climate change, are carried th ro u g h to a deep N o r t h - S o u t h divide that perm eates every aspect of the climate ch a n g e negotiations. The G-77 has alw ays perceived climate c h a n g e as a d e v e lo p m e n t

issue,

invoking

equ ity

as th e

fundam ental

principle

for

addressing it. A basic position of the G-77 is that the develo ped countries must cut their o w n emissions, before requiring the d e v e lo p in g countries to do so. The G-77 also em phasises the need for financial assistance and te c h n o lo g y transfer,

info rm ed

by a belief

in multilateral

co operation.

Many

G-77

m em b e rs find them selv es d isa d va n ta g e d in bilateral exchanges, and value the protection that rule-based institutions can offer. They have tende d to be suspicious of m arket mechanisms, seeing these as possible lo o p h o le s for e v a d in g com m itm ents. N o r t h - S o u t h relations in the climate c h a n g e regim e are indeed characterized by generalized m utual mistrust. W h ile

G-77

m e m b e rs

bro adly

share

com m on

principles, their

national

circumstances vary considerably. This is reflected in the other g r o u p s that opera te w ithin the G-77.: • A lliance o f Sm all Island States: A O S I S w a s fo rm e d in 1990 specifically to lobby on climate change. It n o w comprises s o m e 43 low-lying or small island states, m ost of them also G-77 members. A O S I S m em b ers are a m o n g the m ost vulnerable to climate change, and have a rg u e d forcefully for strong co m m itm e n ts to reduce emissions. • Least D e v e lo p e d C o u n trie s: The LDCs, w h o operate t h r o u g h o u t the UN, are h ig h ly

v u ln e ra b le

b r o u g h t on

to

desertification,

drought

by climate change, exacerbated

a nd

extrem e

by poverty and

weather lack of

resources. LDCs are located in Africa (mostly) and Asia, with som e also m em b ers of AO SIS. • O rg a n iza tio n o f Petroleum E xp o rtin g C o u n trie s: Fearing the econom ic repercussions of a decline in d e m a n d for oil, O PEC has o p p o s e d strong m itigation action. So m e m em b ers have even been accused of obstructing the negotiations. It does not ne go tia te as a group, but co ordinates very effectively informally. E u ro p e a n U n io n : The 25 m e m b e r EU alm ost alw ays speaks with o ne voice, despite differences in the national circumstances o f its members. The EU views itself as an en viro n m e n ta l leader, su p p o r tin g strong co m m itm e n ts and with a traditionally lu ke w arm attitude to w a r d s m arket mechanisms. The EU is also

The Challenges of the Climate Change Negotiations

31

generally more comfortable with go v ernm en t regulation and multilateral cooperation than most of the Umbrella Group. The EU has not always translated its leadership aspirations into concrete influence, due to internal divisions and cu mbersome internal procedures (see Gupta and Grubb, 2000). The EU did, however, exercise important leadership in u p ho lding the Kyoto Protocol in the wake of the US repudiation. Econom ies in Transition: The EITs, 10 of which are no w EU members, experienced deep emission cuts in the early 1990s, due to economic collapse. Prior to this, the EITs were a m o n g the most carbon intensive economies in the world (see H ouseham et al, 1998). The new EU entrants, w h o previously negotiated as the Central Group-11, traditionally supported the EU. The Russian Federation and Ukraine, however, are in the Umbrella Group. Umbrella Group: This Group's members share similar values and principles in the climate change negotiations, centred on the pursuit of flexibility and costeffectiveness. Their national circumstances, however, are very different. Japan, New Zealand, No rw ay and Iceland, for example, have far lower emissions per capita and per unit of GDP than the geographically larger and more carbon intensive economies of Australia, Canada and the US, or the Russian Federation and the Ukraine. They are also politically diverse. The US and Australia have repudiated the Kyoto Protocol, but the others have ratified. Some of its members (e.g. Canada, Norway) are strong supporters of multilateral cooperation on the environment, in contrast with the US under the George W. Bush Administration at the time of writing. This explains w hy the Umbrella Group is only a loose coalition, which rarely negotiates as a single entity.

organ ization s (IG O s) such as the Intern ational E nergy A gency (IE A ), as well as U N b o d ie s, such as the U N E n v iro n m en t P ro g ram m e (U N E P ) and the U N D ev elo p m en t P ro g ram m e (U N D P ). R ep resen tatives from these I G O s focu s m ostly on p rovid in g sp ecialist ad vice to their m em b ers, sh ow casin g their clim ate change related activities, o r m on itorin g d evelop m en ts o f interest to them (Yam in and D e p le d g e , 2 0 0 4 ). T h e clim ate change regim e also ten d s to attract a high m edia presen ce, which flu ctu ates d ep e n d in g on the stag e o f n egotiation s. An im p ortan t trend in the p ost-K y o to era con tribu tin g to the com plexity o f the clim ate ch an ge n egotiation s has been an in crease in the n u m b er o f d ifferen t issu es on the n egotiatin g agen d a. T h is can be attrib u ted to several fac to rs. Firstly, the aw aren ess o f co u n tries o f their p articu lar n ation al circu m stan ces and in terests relative to clim ate ch an ge h as risen over tim e, so that m ore sp ecific issues are bein g p laced on the table. Secondly, the ad op tion o f the K yoto P ro to co l and the M arrakesh A cc o rd s created a w hole new gam ut o f m ech an ism s and p ro c e d u re s that m u st b e overseen and m on itored by the negotiatin g p arties; this, again, w as a p ro d u c t o f the d ifferin g p o sitio n s o f the negotiatin g p arties, which all h ad to b e acco m m o d ate d . Thirdly, there is

32

The O rganization o f G lo b al N egotiations

inherent difficulty in ever closing an agenda item; once one has been launched, this creates a new com m unity o f peop le with an interest in keeping it alive. Fourthly, the rules for the conduct o f b usin ess are expansive when it com es to adm itting and keeping item s on the (at least provisional) agenda. This greater n um ber o f issues has en couraged specialization, so that there are fewer delegates with the big picture o f the w hole negotiation process. A key challenge for the climate change negotiations since their inception has been a strong tendency to com petitiveness, rather than cooperation, am ong the negotiating parties. This is partly the result o f the high political stakes o f climate change, including concerns over national econom ic interests and competitiveness, as well as the long time horizon o f the problem , which has led to a focus on short­ term costs rather than on benefits that w ould only accrue in the future. The tendency to com petitiveness is also a product o f the N orth -South divide to the negotiations, where the im perative of global cooperation struggles against a history o f m istrust and differing perceptions o f the problem . The m ost extrem e case o f com petitiveness is that o f the O P E C parties, w hose negotiating positions ap p ear to be based on a stronger readiness to obstruct than to cooperate given their fears over the econom ic im pact o f a carbon-constrained w orld. The conflictual nature o f relationships betw een the n e gotiatin g parties is in turn reflected in the deep chasm betw een environm ental N G O s on the one hand and the fossil fuel industry N G O s on the other. Putting these elem ents together, a particularly unenviable feature of the clim ate change negotiations is the presence o f an alliance o f obstructionist forces, including carbon intensive lobby grou ps and a sm all n um ber of eloquent negotiating parties, w hose goal for the negotiation p rocess is sim ply to slow it dow n. At a fundam ental level, therefore, the negotiations have to overcom e the fact that an influential minority o f negotiating parties, assisted by well funded non-state organizations, in fact do not su p p o rt the negotiation process and seek to block an outcom e.

The o r g a n i z a t i o n o f the climate c h a n g e n e g o t i a t i o n s In the following chapters, we will exam ine how the climate change negotiation process has been organized to try to face up to, and overcom e, its challenges. As discussed in Chapter 2, the organization o f a global intergovernmental negotiation is typically founded upon a hierarchy o f form al and informal procedural rules and practices. These rules and practices are then used by the organizers of the negotiation process - the presiding officers, bureau and secretariat - as the basis for their organizational decisions. The origins and nature o f these rules and practices in the climate change context are outlined below.

F o u n d in g texts The C onvention itself establish es the institutions o f the clim ate change regim e (see Figure 3.1) and sets out b asic procedural rules relating to the con duct of b usin ess and decision-m aking. It establishes, for exam ple, p rocedures for

The Challenges o f the Climate Change N egotiations

33

considering and adopting proposed am endm ents, new annexes and protocols to the Convention, and also for holding sessions of the COP, including the adm ission of observers. In its Article 18, the Convention sets out the fundam ental rules for participation in the climate change negotiations, that is, on a one-party-one-vote basis. The procedural rules included in the Convention are similar to those in other multilateral environmental agreements (M E A s),1’ and are also carried over, mutatis mutandis, to the Kyoto Protocol.

Rules of procedure The Convention called on the first C O P to ‘adopt its own rules of procedure as well as those o f the subsidiary b odies’ (Article 7.3). D ue to disagreement over the voting rule to be applied for taking substantive decisions, the draft rules of procedure have never been adopted (Yamin and D epledge, 2004). However, given that the bulk of the draft rules o f procedure are not in contention, the draft rules (see F C C C /C P /1 9 9 6 /2 ) have been ‘ap plied’ at each session o f the C O P and subsidiary bodies without controversy, except for the rule on voting (rule 42). Each C O P President has been charged with consulting to resolve the im passe. However, since the adoption o f the Kyoto Protocol, the C O P President’s consultations have been cursory at best, or have not taken place at all, and the application of the draft rules of procedure at each session has becom e unchallenged established practice. For this reason, and in the interests o f readability, this book will refer simply to the ‘rules of procedure’. The rules o f procedure, which include a broad set o f rules for the functioning of the regime, are largely unexceptional in the multilateral environmental arena. The Kyoto Protocol, for its part, specifies that it will apply the Convention’s rules o f procedure, ‘except as may be otherwise decided by consensus’ by the C O P /M O P (Kyoto Protocol Article 13.5). At the time o f writing, the understanding was that C O P /M O P 1 would indeed apply the C O P ’s rules o f procedure.

S u p p le m e n ta ry decisions The C O P has adopted a small num ber of form al decisions relating to the organization of the negotiation process. Decision 18/CP.4, for exam ple, sets out procedures for the participation o f observers in contact groups, while other decisions have been taken to better define the division of labour between the two subsidiary bodies, and to try to control the increase in volume of documentation. M ore commonly, however, the SBI will adopt organizational conclusions on the forthcom ing COP, including, for exam ple, on how to involve ministers and on the basic structure o f the Conference.

Informal practices The organization o f the climate change negotiation process is replete with informal practices that have developed over time. The organizers of the negotiation process have indeed been highly active in seeking to interpret the

34

The O rganization o f G lo b al N egotiations

regim e’s procedural rules, and im provise b ased on those rules, in order to respond to the needs o f the negotiation p rocess and organize it better. The inform al practices o f the clim ate change negotiations are som etim es difficult to pin dow n, precisely because they are unwritten. They include, for exam ple, the ‘no m ore than two m eetings’ rule, w hereby only two official negotiating grou ps may meet at any one time, along with the practice o f appointing two C o-C h airs to preside over inform al groups, one each from an A nnex I and non-Annex 1 party.

W i d e r institutional setting The institutional setting o f the U N G A plays a very influential role in the organization o f the climate change negotiation process. T h is includes, for exam ple, form al rules surroun din g the provision o f interpretation and translation, along with inform al practices. The ‘no m ore than two m eetings’ rule discussed above, for exam ple, is carried over from the w ider U N system.

S u m m a r y a n d c on c l u d i n g r emarks Th e clim ate change negotiations face a n um ber o f difficult challenges, arising from the malign nature o f clim ate change, com bined with the com plexity and inequality that characterize global intergovernm ental negotiations and are particularly prevalent in the clim ate change context. We now turn to analyse how organizational elem ents have been used in the clim ate change negotiations to try to meet these challenges, beginning with an exploration o f the role o f the organizers o f the negotiation pro cess - the presidin g officers (C h apter 4), bureau (C h apter 5) and the secretariat (C h apter 6).

4

Presiding Officers

. . . the real task of being the C h a ir... includ[es] alm ost every kind o f role, between on the one extrem e being the spiritual adviser or psychologist (weeping delegates!), through being a m anipulator or seducer, to the other extreme of being a dictator (Veit K oester (Chair, negotiations on the Cartagena Protocol on Biosafety), in Bail et al (2002, p46)).

Introduction Presiding officers play a central role in any global negotiation. Together with the secretariat, presiding officers have overall responsibility for the smooth conduct of the negotiations, and as such their actions shape every facet of the organization of the negotiation process. A hierarchy o f presiding officers exists in the climate change regime, corresponding to the three layers of negotiating arenas over which they preside (see Chapter 9, also Figure 3.1). At the top of the apex sits the President o f the COP, typically a Minister. Then, at the second institutional layer of the regime, come the Chairs of the SBSTA and the SBI. These three officers C O P President and subsidiary body Chairs - are formally elected by the parties to the regime, with their basic terms of reference (e.g. length o f service) governed by the rules of procedure. Occupying the third institutional layer of the climate change regime are the Chairs of informal groups established by the C O P or subsidiary bodies to negotiate specific issues for one session only. In this chapter, we explore the roles of all these presiding officers, the ways in which they can contribute to the effective organization of the negotiating process, and the qualities and skills required for them to do so.

M a n d a t e , functions and a p p o i n t m e n t T h e form al m andate and functions o f the C O P President, which also apply to the subsidiary b o d ie s,1 are set out in the rules o f procedure o f the clim ate change regim e. Although inform al groups are not expressly provided for under the rules, the general description o f a presidin g officer’s role also pertains to their Chairs.

36

The Organization o f G lob al Negotiations

M a n d a t e and fu nctions The foundation stone for the work of a presiding officer is impartiality. A ccording to the rules, the President ‘shall n o t. .. exercise the rights of a representative o f a Party’ (Rule 22.3). Building on this foundation, the presiding officer’s m andate rests on a delicate balance between authority and deference relative to the parties. On the one hand, the rules state that the presiding officer ‘shall have complete control over proceedings and over the maintenance o f order thereat’, on the other hand, they caution that s/he ‘remains under the authority o f the Conference o f the Parties’ (Rule 23.1, 23.3). Presiding officers are therefore granted a fragile mandate, which must be m anaged with care. The rules outline several specific functions for presiding officers, which are common in the multilateral arena. These include the following (Yamin and D epledge, 2004): • • • • •

declare the opening and closing o f sessions, preside over m eetings and ensure the observance of procedural rules (rule 23.1) accord the right to speak (rules 6, 23, 32) put questions to the vote and announce decisions (rule 23.1) rule on points o f order (with the possibility o f challenge) (rules 23.1, 34) draw up the provisional agenda for each session, with the secretariat (rule 9).

These limited formal functions, however, belie a potentially much richer informal role that is accepted - and often expected - of a presiding officer in prom oting the reaching o f agreement, in other w ords, the exercise of processoriented leadership. In a letter to the C O P 2 President, form er Executive Secretary Zammit Cutajar (the head of the secretariat) explained, ‘the political functions of the President are not set out in writing, but are expected to include leadership in seeking consensus’ (Zammit Cutajar, 1996). In a study of num erous environmental regimes, U nderdal similarly concludes that, although the roles of ‘conference presidents and committee chairs are most often quite narrowly circum scribed in terms o f formal au th ority... nonetheless incumbents often succeed in using such roles as an important basis for exercising influence’ (Underdal, 2002, p27 and note 28). Such an informal role opens up a wide, though not neatly defined, potential space for action. According to Lang, ‘the informal pow ers of a presiding officer are neither codified nor really limited whatever serves the purpose of the conference and is accepted by the participants may be undertaken’ (Lang, 1989a, p39). However, he goes on to warn that ‘the extent to which a presiding officer may use most of his informal pow ers depends on the perm issive consensus of the participants . .. the powers of a presiding officer are extensive and fragile at the sam e tim e’. Although the general nature o f their roles is the same, the actual tasks of different types of presiding officers will vary in practice, according to the functions of the body over which they preside. The C O P President tends to have a much more ceremonial role, as almost all decisions will already have been reached in the subsidiary bodies or informal groups before they are presented to the C O P plenary (see Chapter 9). Although C O P Presidents can

Presiding Officers

37

choose to play an active role in prom oting agreem ent, in practice only a small n um ber have done so in any truly consequential way, and in som e cases their efforts have even backfired. T h e subsidiary body C hairs, for their part, as the presiding officers o f the main w orking bodies o f the regim e, have a very im portant role to play in pushing for an overall agreem ent on the issues under their purview. This is also the case for inform al group Chairs, although these will usually be dealing with single issues. Inform al group C hairs also know that they can, in the last resort, appeal back to the C O P or subsidiary b o d ies if agreem ent cannot be reached. O f all the organizational elem ents con sidered in this b ook , the role o f the presiding officer is viewed in the literature as holding the greatest potential to im pact on a negotiation (e.g. see K aufm an n , 1989; Young, 1991; Scherm ers and Blokker, 1995). T h is view is b ack ed up by num erous em pirical cases, w here the actions o f a skilful presidin g officer contributed to a successful negotiation, while less judicious chairing placed obstacles to agreem ent. L an g suggests that, while the contribution o f even a particularly activist presiding officer is unlikely to exceed ‘ten percent o f the total im pact o f all negotiators ... in som e instances ... this ten percent m akes the difference betw een success or failure’ (Lan g, 1989a, p39).

A p p o in tm e n t CO P President Th e rules specify that the position o f C O P President is ‘norm ally subject to rotation ’ am ong the five U N regional grou p s ■ A frica; Asia; C entral and Eastern E u ro p e; Latin Am erica and the C aribb ean ; and W estern E u rop e and O thers (Rule 22.1). An inform al tradition has also developed, b ased on com m on practice in the U N system , w hereby the venue for the C O P usually rotates am ong the five regional grou ps together with the position o f President. Any country may offer to host a CO P. Although the offer m ust be form ally exam ined by the SB I and approved by the CO P, it is unlikely that an offer will be refused. If no one offers to host, the session is held at secretariat headquarters in Bonn (G erm any), and regional rotation continues to apply to the presidency. The practice in the clim ate change regim e is for the position o f C O P President to be held at ministerial level, usually by the m inister for environment. The President is form ally elected at the opening o f the C O P session that s/h e will preside over. In practice, the process o f election is a form ality as, given that the presidency go es hand in hand with the C O P venue, or at least with regional rotation, the identity o f the President is typically known long b efore the C O P session opens. T h e President rem ains in place until the next session o f the CO P, presiding over any inter-sessional m eetings (see C h apter 9), then h ands over to the follow ing C O P President at its opening. T h e P residen ts that have served in the clim ate change regim e to date are listed in Table 4.1 below.

Subsidiary b o d y Chairs Th e subsidiary body C hairs are elected as part o f the 11-m em ber C O P Bureau (see C h apter 5). A lthough the com position o f the B ureau as a w hole is subject

Table 4.1 COP Presidents to date

CO P

D a te s

V enue

P resid ent

C o u n try

U N R e g io n

Berlin

Merkel

Germany

Western Europe and Others Group

Geneva

Chim utengw ende

Zim babwe

Africa

COP 1

28 M arch-7 April 1995

COP 2

8-19 July 1996

COP 3

1-11 December 1997

Kyoto

Ohki

Japan

Asia

COP 4

2-14 November 1998

Buenos Aires

Alsogaray

Argentina

Latin America and the Caribbean

COP 5

25 October-5 November 1999

Bonn

Szyszko

Poland

Central and Eastern Europe

COP 6

13-24 November 2000

The Hague

Pronk

Netherlands

Western Europe and Others Group

Bonn

Pronk

Netherlands

Western Europe and Others Group

COP 6 Part II

13-27 July 2001

COP 7

29 October-9 November 2001

Marrakesh

El Yazghi

Morocco

Africa

COP 8

23 October-1 November 002

New Delhi

Baalu

India

Asia

COP 9

1-12 December 2003

Milan

Persanyi

Hungary

Central and Eastern Europe

COP 10

6-17 December 2004

Buenos Aires

[to be elected]

Argentina

Latin America and the Caribbean

Source: Adapted from Yam in and Depledge (2004)

Presiding Officers

39

to rules regarding regional distribution, the position o f subsidiary b ody Chair is not. An inform al understanding prevails, however, that the position o f Chair will rotate fairly am ong the regional grou ps over time. A s with the C O P Bureau as a whole, the positions o f subsidiary body C hairs are usually decided upon through the (som etim es highly contentious) process o f regional nom ination behind the scenes, and election is norm ally a formality. T h e subsidiary body C hairs, along with all Bureau m em bers, are perm itted to serve two term s, and usually do (Yamin and D ep ledge, 2004). A ccordin g to the rules, the C hairs o f new subsidiary b o d ies are elected by the subsidiary b odies them selves (Rule 27.5). This applied, for exam ple, to the ad hoc group on Article 13 (A G 13) that met 1995-1998 to negotiate (ultim ately unsuccessfully) a m ultilateral consultative pro cess under the Convention, along with the Jo in t W orking G ro u p (JW G ) that met 1999-2000 to negotiate the K yoto Protocol provisions on com pliance. H ow ever, in the case o f the A G B M , the ad hoc body convened to negotiate the K yoto Protocol, its Chair, Raul E strada-O yuela, w as designated by the C O P on the G r o u p ’s establishm ent, enabling preparations for the A G B M ’s first session to start im m ediately in a context o f procedural certainty. The subsidiary body Chairs that have served to date are listed in Table 4.2 below.

Inform al gro u p Chairs T h e C hairs o f inform al grou ps are invited to serve by the presiding officer of their convening body, usually the SB S T A or SB I, or less frequently the C O P T h e Chairs o f inform al grou p s are appoin ted for one session only, but may be re-appointed at subsequen t sessions if the inform al group is reconvened. D uring the post-K yoto negotiations, for exam ple, several inform al grou ps known as contact grou p s (see C h apter 9) - convened to w ork on the m ajor issues under negotiation,2 acquired a m om entum o f their own as their m andates were renew ed and their C hairs re-appointed session after session. The perform ance o f these contact group C hairs in steering the negotiations therefore becam e as im portant, if not m ore im portant, than that o f the subsidiary body C hairs and C O P Presidents. The subsidiary body Chairs will usually give som e thought prior to the session on who could chair the inform al grou ps they are thinking o f convening, and will discuss possib le nam es with the secretariat. In draw ing up a list of possib le inform al group chairs, and in keeping with the foundation of im partiality that m ust underpin the w ork o f any presidin g officer, the subsidiary body C hairs will seek to maintain regional balance am ong the full slate o f inform al group C hairs, and to ensure that the chairing will be perceived as im partial. In this respect, a practice has em erged post-K yoto o f appointing C o-C h airs for contact gro u p s,’ one each from an A nnex I and a non-A nnex I country, to try to m ake sure that both sets o f parties feel their interests will be given due atten tion. T h is p ractice, how ever, h as the d isad v an tage o f entrenching the divide betw een A nnex I and non-A nnex I parties, while doublin g the dem and for effective Chairs. Several secretariat interviewees pointed to a ‘scraping o f the b arrel’, w hereby inexperienced individuals are invited to chair, som etim es ineffectively. In many cases, the practical result is

Table 4.2 Chairs of the SBSTA and SBI to date

Term o f o ffice

SB ST A

SB I

Elected at COP 1 Served SBSTA/SBI 1-7

Tibor Farago (Hungary)

M a h m o u d Ould El G haouth (M auritania)

Elected at COP 3 Served SBSTA/SBI 8-10

Chow Kok Kee (Malaysia)

Bakary Kante (Senegal)

Elected at COP 5 Served SBSTA/SBI 11-15

Harald Dovland (Norway)

John Ashe (Antigua and Barbuda)

Elected at COP 7 Served SBSTA/SBI 16-17

Halldor Thorgeirsson (Iceland)

Raul Estrada-Oyuela1 (Argentina)

Elected at COP 8 Served SBSTA/SBI 18-19 Elected at COP 9 Served SBSTA/SBI 20-21

Danieka Stoycheva (Bulgaria) Abdullatif S. Benrageb (Libya) A d hoc bodies

A G B M (1995-1997)

Raul Estrada-Oyuela (Argentina)

AG 13 (1995-1998)

Patrick Szell (UK)

Joint W o rkin g G roup on Compliance (1999-2000)

Harald Dovland (Norway)

Espen Ronneberg (Marshall Islands) (to October 1999) Tuiloma Neroni Slade (Samoa)

Source: Adapted from Yam in and Depledge (2004) Note: 1 Estrada only served one term as SBI Chair, as he had previously served an additional term on the COP Bureau as a Vice-President, and therefore was not eligible to stand again

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that one active Chair em erges, while the other Chair remains largely a figurehead. In order to avoid controversy over the appointm ent of informal group Chairs, at several sessions (e.g. at C O P 6 (part II)), they have been chosen from am ong C O P Bureau members. This is not always possible, however, as there is no guarantee that C O P Bureau m em bers will hold the necessary skills. Another means o f avoiding controversy has been to invite the groups o f Annex I and nonAnnex I countries to nominate their own Co-Chairs, a practice that again emerged during the post-Kyoto negotiations. While this has the advantage of ensuring legitimacy, it also runs the danger that a Co-Chair will be nominated not because of his/her aptitude, but because of his/her political acceptability or because of strong pressure from a pow erful party. Although it is, of course, difficult to deduce the motives of parties, one possible exam ple o f this occurred at the 13th session of the subsidiary bodies (SB ST A /SB I 13 in Septem ber 2000), when a representative of Saudi Arabia was nominated by the G-77 as the nonAnnex I Co-Chair of the contact group on adverse effects/4 despite the extreme and uncom prom ising position of that country on the topic. The C O P 6 President pioneered a new practice for the finale o f the postKyoto negotiations of asking ministers to chair the final informal groups. At C O P 7, the President similarly adopted a novel approach of asking two ministerial colleagues, from Switzerland and South Africa, to serve as ‘co­ facilitators’ for the final stages o f negotiations. The term ‘facilitator’, which appears to have been introduced by C O P 6 President Pronk, was used in preference to ‘chair’ at both C O P 6 (part II) and C O P 7 because of its more informal connotations. As one secretariat interviewee put it, the term ‘is meant to invoke feelings o f soft, consensual confidence b u ild in g ... “ C h air” . . . i s harsher’. U sing ministers in this way, however, while appropriate when highlevel political decisions must be taken, does require understanding o f their differing strengths and dynamics com pared with officials, as discussed further in Chapter 13.

The roles of presiding officers There are several different ways in which presiding officers can exercise process-oriented leadership to help overcom e the challenges faced by global negotiations.

Strategic o rga n iza tion of the negotiation process Central to the exercise o f leadership by the C O P President and subsidiary body Chairs, as presiding officers o f the Convention bodies, is overall strategic organization o f the negotiations, usually in partnership with the secretariat. E xam ples of such strategic organization relating to the conduct of business and decision-making, use o f different negotiating forum s, choice of negotiating texts, management of time, and involvement of N G O s and ministers, appear throughout the individual chapters that follow.

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In terms of com plex negotiating rounds that span several sessions, such as the Kyoto and post-Kyoto negotiations, the ability of presiding officers to contribute to the strategic organization o f the round depends to a large extent on the appointm ent o f a single clear leader throughout that round. In this respect, it is instructive to com pare the Kyoto and post-Kyoto negotiations. The Kyoto negotiations were led by a single presiding officer, Chair o f the A G BM Raul Estrada-O yuela, who stayed in office throughout the negotiating round, and was designated to chair the Com m ittee o f the Whole which conducted the final negotiations on the Protocol at C O P 3 in Kyoto. This continuity was critical; E strada was able to plan the negotiations strategically, develop an indepth understanding o f the negotiation process and build relationships with delegates, while parties becam e accustom ed to his chairing style, thus stabilizing expectations and enhancing the efficiency of the process. The Chairs o f the SBSTA and SBI, and Presidents of C O P 2 and C O P 3, played a supporting role, but it was clear that E strada was, in practice, in charge. The post-Kyoto negotiations were much more fragm ented. D espite a unified framework provided by the Buenos Aires Plan o f Action (BAPA), responsibility for the issues under negotiation was divided between three bodies (the SBSTA , SBI, and JW G - see Chapter 9) involving, throughout the negotiation process, a total o f seven presiding officers for these bodies. The final negotiations at C O P 6 (part I) were handed over to the eighth presiding officer, the Dutch C O P President Ja n Pronk. President Pronk did his best to bring the process together and exercise overall leadership, including convening informal consultations prior to C O P 6 and preparing a single paper dealing with all the issues as a whole (see Chapters 9 and 11), but it was arguably too late, as he had no time to develop strong working relationships with, or the confidence of, parties. Ott (2001, p285) encapsulated the situation thus: ‘E stra d a . . . had presided over the negotiations on the Kyoto Protocol for several years, whereas the Dutch minister was a newcom er’. The absence of a single leader throughout the post-Kyoto negotiating round thus ham pered the rise of strong processoriented leadership so that the negotiations lacked an overall sense of direction.

C o ndu ct of m eetings Successful chairing o f meetings lies at the heart of the work of any presiding officer. In the case of a global negotiation, where meetings involve many parties from different linguistic, cultural and political backgrounds, the challenges are enorm ous. A key challenge is to reconcile the dem ands, and indeed rights, of all parties to be heard (procedural equity, transparency) with the imperative of ensuring that each meeting concludes its work in the time allotted (efficiency). Achieving such a balance requires knowing how to curb both long-winded but well-meaning speakers, and deliberate obstructionists and filibusters. Linked to this, a key goal must be to nurture and sustain a cooperative atm osphere am ong all the parties, however difficult the negotiations get, and try to overcome the tendency to competitive behaviour. Chairing skills are especially important for the presiding officers o f the subsidiary bodies and informal groups, which are the bodies that carry out the

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bulk o f the w ork in the clim ate change regim e. Indeed, m ost interviewees com m ented that C O P P residents have very rarely possessed the necessary experience or ability to m anage spon tan eous, genuine bargaining or even discussion in a plenary meeting. C O P m eetings are therefore always tightly choreographed in advance by the secretariat and C O P Presidency to avoid surprise interventions and m inimize unplanned debate (Yamin and D epledge, 2004). T here w as w idespread agreem ent am ong interview ees over a sm all num ber o f presidin g officers with strong chairing skills. T h e m ost high profile am ong these w as Raul E strad a, who supplied the K yoto Protocol negotiation process with highly skilled chairing, which helped to m axim ize the efficiency o f the negotiations, while prom otin g a cooperative atm osph ere and sustaining procedural equity. A ccording to form er E xecu tive Secretary Zam m it Cutajar, E strad a possessed ‘the sheer ability to chair a big m eeting I have never seen b efore or since’ (interview). E strad a chaired the negotiations in a largely inform al, personal and interactive manner, which helped to build up a sense o f personal involvement and ow nership o f the negotiation p rocess am ong parties. F o r exam ple, he referred to the parties in the A G B M as ‘w e’ and m ade a point o f calling on speakers by their nam es, not just their countries. W hen he was not personally acquainted with a delegate seeking the floor, he w ould som etim es ask the secretariat to find out h is/her name. E strad a was certainly extrem ely ad ep t at reading the sense o f the room and adapting his chairing style accordingly. A s one interviewee noted, ‘he had this incredibly disarm ing a b ility ...to be able in a rather b road brush way to read the personalities he w as dealing with, to k n o w ... w hether to encourage their ideas, w hether to allow them to ram ble on or to rein them in’. An im portant tool for E strad a w as the use o f hum our. Jo k e s, often at his own expen se, enabled him to defuse tense situations, generate a m ore cooperative atm osph ere, push through sensitive decisions, and disarm potentially difficult delegates who he feared were ab ou t to raise objections. H u m ou r and use o f allegory have also been useful tools for other Chairs. SB I Chair Bakary K ante kept up a constant flow o f hum orous rem arks, which deflected attention from the difficulties he faced, as a non-English speaker, in chairing m eetings. Chow K ok Kee, C hair o f the contact group on flexibility m echanism s throughout the post-K yoto negotiations (and previously SB ST A C h air), w as renow ned for likening the con sideration o f very com plex negotiating texts to a ‘w alk through a rose gard e n ’, on which he w ould lead the d elegates. T h is fo ste re d a sen se o f com m unity am on g con tact gro u p participants - albeit som etim es provoked by slight irritation at the repeated use o f the m etaph or - and helped launch often contentious negotiations in a m ore good-n atured manner. D iffering cultural b ack gro u n ds, however, m eans there are p oten tial pitfalls to w atch out for when usin g h um our in glo b al negotiations. T h e sam e C h air Chow, for exam ple, when chairing the SB ST A , caused som e disquiet by repeated references to ‘girl pow er’ when he appointed two fem ale C o-C h airs to preside over a contact group. A nother case o f highly effective chairing o f large m eetings cited by many interview ees w as that o f SB S T A C h air H alld or Th orgeirsson . Th orgeirsson

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The O rganization o f G lo b al N egotiations

achieved a particularly go od balance between procedural equity and efficiency, m anaging to engage all delegates in an open manner, but at the sam e time keeping m eetings on track and, as one interviewee put it, not ‘letting peop le get carried away with their interventions’. A nother interviewee com m ented on his political acum en, w hereby he always foun d the right w ords to deal with both ‘stup id qu estio n s’ and ob structionism , while m aintaining high aw areness of political sensitivities.

C o n s e n s u s bu ild in g A s im partial, authoritative individuals, it is expected that presidin g officers will play an im portant role in consensus b uilding am ong the negotiating parties. In addition to m aking substantive p rop osals (see below ), this will usually involve convening sm all, behind the scenes m eetings o f key players to discuss their differences and ‘knock heads togeth er’. Presiding officers are often able to extract concessions that parties are unwilling to m ake directly to each other, as parties can ‘save face ’ by attributing their concession to the intervention o f the presidin g officer, and their desire to help him /her in reaching agreem ent, rather than any clim b down on their part (see also C h apter 11). H ere, there is often interplay betw een the presidin g officers at different levels in the negotiation process. C ontact group C o-C h airs, for exam ple, may ap peal to the subsidiary b ody C hair to intervene in the contact group negotiations on a particularly difficult issue, perh aps by inviting the main players to a private meeting. T h ere are innum erable exam ples o f such consensus building by presiding officers. T h e intervention o f S B S T A C hair T h orgeirsson, for exam ple, was pivotal throughout the negotiations on the review o f IP C C Th ird A ssessm ent R eport (TAR) when these becam e blocked in the contact grou p , while SB I Chair Jo h n Ashe specialized in ‘knocking h eads togeth er’ in private encounters, often with great success.

Pre se ntin g su b s t a n tiv e p ro p o s a ls P residin g officers may present substantive p roposals on their own authority when they think this could help forge a consensus, and are indeed expected to do so. D ependin g on the nature o f the negotiation, these can take the form o f a com prehensive C h air’s text (see C h apter 11), or language on a single issue or even a single phrase. The extent to which presidin g officers will actually do this will vary considerably, dependin g on their know ledge o f the issue at hand. G iven the grow ing com plexity o f the negotiation process, p roposin g specific language on single issues is increasingly becom ing a task for inform al group C hairs, as subsidiary body C hairs, and even m ore so C O P Presidents, have difficulty in keeping a detailed ‘h an dle’ on all asp ects o f the negotiations. In doing so, inform al group C hairs will usually draw on advice from the secretariat. C O P P residen ts and subsidiary body C hairs, however, often play a vital role in m ixing and m atching the pro p o sals o f parties to construct a whole acceptable to all. As a third party w ithout a particular position to sustain, a p re sid in g o fficer m ay be ab le to see the b ro a d universe o f p o ssib le

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com binations, not just the option s in isolation, and then forge an integrative solution from these. A go od exam ple o f this is the p rop osal by C O P President Pronk m ade at C O P 6 (part II), where he issued a p ap er - ‘C ore elem ents for the im plem entation o f the Buenos Aires Plan o f A ction ’ (F C C C /N o n -p ap er, 2001) - covering all the main issues under negotiation through a com prom ise m ix o f the positions o f parties. E xcep t for the section on com pliance, which w as subject to further negotiation, this form ed the basis for eventual agreem ent (see also C h apter 11). A nother exam ple occurred on the final night o f the K yoto P rotocol negotiations, when Chair E strad a correctly surm ised that the com bination o f including em issions trading and the C D M in the Kyoto Protocol, but excludin g voluntary com m itm ents for developing countries, w ould prove acceptable to the parties as a whole. W hile an analysis of interventions m ade on that last night suggests that a majority m ight have su pp orted the isolated decision to ad op t an article on voluntary com m itm ents, E strad a ju dged - probably correctly - that an alternative package including voluntary com m itm ents but no em issions trading or no C D M w ould not have h arnessed consensus.

Procedural in n o v a tio n Certain presidin g officers have been particularly entrepreneurial in their m anagem ent o f the negotiation process, experim enting with new procedures and practices. In this sense, their contribution has been a m ore long term one, im pacting on the overall procedural evolution o f the climate change regim e, and not just on the outcom e o f a specific negotiating round. Patrick Szell, for exam ple, C h air o f the A G 13 from 1995-1998, pioneered an openn ess tow ards inputs from N G O s - both written and spoken - that is now being replicated in the perm anent subsidiary bodies. Similarly, C how K ok K ee, as SB S T A Chair, instituted regular inform al m eetings between the subsidiary body C hairs and N G O s which h elped to foster a m ore inclusive m odel on N G O involvement, and also directly contributed to the active N G O involvem ent on the E xpert G ro u p on Technology Transfer. C O P 6 President Pronk provides another exam ple o f a procedurally innovative presiding officer, in his case pioneering channels for stronger m inisterial involvem ent (see C h apter 13). A lthough his success in doing so was m ixed at C O P 6 (part I), he did lay the foun dation s for m ore effective m inisterial participation at C O P 6 (part II) and C O P 7.

D e c ision -ta k in g O ne o f the form al functions o f presidin g officers, as set out in the rules, is to ‘announce decision s’. T h is function acquires particular im portance in the clim ate change context given the absence o f an agreed voting rule. This, together with the lack o f a clear definition o f consensus, grants presiding officers som e leeway in interpreting when decisions can be ad opted (see also C h apter 8). So presidin g officers are required to m ake a judgem ent as to whether any objection s from parties are mere posturin g or w hether they reflect bottom line dem ands that should not be violated. M aking a correct judgem ent

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The Organization o f G lob al Negotiations

in this regard is critical to the eventual legitimacy of the decision taken, as well as the presiding officer’s credibility. As Kaufm ann notes, ‘all decisions taken without a vote require the careful judgem ent o f the chairman. If his ju d gem en t. .. errs, a procedural wrangle may well break out and the chairm an’s prestige will suffer’ (Kaufm ann, 1989, p30). This decision-taking function is particularly important for C O P Presidents and subsidiary body Chairs, given that formal action by the parties, whether adoption o f decisions, conclusions, or any other type o f output, can only be taken in plenary meetings o f those bodies. Nevertheless, given the growing im portance o f contact groups and the tendency for the C O P and subsidiary bodies to simply rubber stamp agreements reached in those contact groups, the role of contact group Chairs in registering a consensus that is then relayed to the main group is becom ing more significant. E xam ples of such decisiontaking are discussed in Chapter 8. The decision-taking function o f presidin g officers m eans they are sometimes used as arbiters of last resort to decide between the various options on the table. In such cases, different parties and coalitions are unable to back down from their own preferred position and accept their oppon ent’s proposal for fear of losing face, even if, on purely substantive grounds, they are prepared to do so. The presiding officer’s intervention in deciding one way or the other can therefore be used as a ‘lightning rod’. As noted above in the context of consensus building, parties can place responsibility - indeed, blam e - for the decision on the presiding officer and therefore not appear to be backing down. A good exam ple is the approval o f the article on general commitments for all parties in the Kyoto Protocol, which had been the subject of gruelling negotiations in an informal group in Kyoto. The Chair o f the informal group, Bo Kjellen, reported privately to E strada that there were three options on the table: one supported by Annex I parties, one by the G-77 and China, and a com prom ise option proposed by himself, but apparently acceptable only to Annex I parties. E strada took several interventions on the draft article, which confirmed the various options, and finally asked the G-77 Chair what he should do, to which the delegate replied ‘do what you always do, use your gavel’ (CoW, 1997f). E strada did precisely that, and Kjellen’s proposed com prom ise was adopted without objection by either the G-77 Chair or any developing country; the G-77 Chair could not be seen to retreat after such intense negotiations, but he was prepared to do so in deference to E strad a’s decision.

Inspiring and m otivating Providing inspiration and motivation to the negotiating parties to spur them on to agreement is an important leadership function that presiding officers can carry out. It is critical that presiding officers be committed to a positive outcom e, albeit impartial as to the contents of that outcom e and, equally critically, that they be convinced that agreement will be reached, even in the face of seemingly irreconcilable differences. Seeking to inspire and motivate parties has been a traditional role taken on by C O P Presidents in the climate change regime, in line with their more ceremonial mantle.

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C O P 7 President El Yazghi is a good exam ple o f a President who sought to inspire and cajole negotiating parties to reaching agreement, often spilling over into stark warnings o f the consequences of failure. H e did so at a number of private meetings with representatives of the various negotiating coalitions and also in plenary, reminding delegates of the breakdow n a year before at C O P 6, and cautioning them o f the consequences of failing again. Although the extent to which parties actually paid heed to the President as such is doubtful, the constant reminder of the failure at C O P 6, and the President’s unwavering conviction that success at M arrakesh was possible, did help to maintain momentum and a positive atm osphere. Another exam ple o f the benefits o f positive thinking is that o f Chair E strada, during the Kyoto Protocol negotiations. H e was genuinely convinced o f the reality o f climate change, often referring in the A G B M to extreme weather events and their adverse impacts. H e was therefore determined that the negotiations w ould be successfully concluded and m aintained unfailing optimism in this. In his own words: You have to be optimistic. Particularly in Kyoto, I was paid to be o ptim istic. . . the Chairman has to be perseverant, persistent, otherwise you are lo s t . . . whatever happens you have to keep doing things up till you reach the goal (interview). Such positive thinking was contagious; the fact that E strada never admitted failure as an option injected energy into the negotiations and reinforced the unacceptability o f failure. An opposite exam ple is that of C O P 6 President Pronk in The H ague, who reportedly began expressing concern over possible failure by the close o f the first week of negotiations. Although it was certainly realistic to exam ine fall back options, the absence of any clear conviction from the C O P President that the meeting w ould succeed cast a palpable negative shadow over proceedings.

Interplay betw een pre siding officers C O P Presidents, subsidiary body Chairs and informal group Chairs all have their own niches to fill and the interaction between these different layers of presiding officers can be as im portant to a negotiation process as individual perform ance. This is especially the case at C O P sessions, where all three layers o f presiding officers, including C O P Presidents, are at work. Arguably the m ost successful C O P s have been those where the C O P President has confined him /herself to largely ceremonial duties, focusing leadership efforts on m otivation, inspiration and broad-brush consensus building, including, importantly, setting deadlines, while allowing those with most experience in the negotiations, usually the subsidiary body Chairs and informal group Chairs, to concentrate unim peded on the detailed negotiations. C O P 7 is a good exam ple o f this; President El Yazghi gave a largely free rein to the (ministerial) Chairs he appointed to negotiate on his behalf, yet maintained pressure on parties through regular small group meetings. C O P 3 is another

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The Organization o f G lob al Negotiations

good exam ple, where the ‘hands o ff’ role assum ed by the C O P 3 President and the Japan ese presidency m ore widely in the official negotiating arena was complimentary and beneficial to the m ore active leadership exercised by E strada. The Japan ese gave E strada a free rein in the conduct o f proceedings and organization of the negotiations, while focusing their efforts on forging deals through side payments and political pressure outside of the official negotiations. As one interviewee put it, ‘it was E strada that drove the p r o c e ss. .. and the fact that the Jap an ese let him do that was im portant’.

Skills and qualities The above discussion has thrown light on a number o f skills and qualities that can help enhance the perform ance o f a presiding officer. Som e traits are important prerequisites for any successful Chair, while others may be more or less appropriate for different types of negotiations and negotiating rounds. These issues are discussed further below.

Impartiality As discussed above, impartiality is a necessary precondition for any effective presiding officer. Impartiality is distinct from neutrality. Presiding officers should not be neutral, in the sense that they should not be indifferent to the outcom e o f the negotiations, but instead be committed to reaching agreement. However, while not neutral, presiding officers should remain steadfastly im partial with regard to the differing preferences o f parties and coalitions, as well as to specific issues. C h air E stra d a again p rovides a good exam ple here. E stra d a ’s determination to broker agreement during the Kyoto Protocol negotiations ran deep, and the presence of obstructionist parties meant that such determination was not com patible with neutral chairing. As one interviewee explained, ‘he was totally committed to progressing negotiations towards a positive outcome, a n d . .. some of the parties w eren’t’. However, he did remain im partial on specific issues. Although, at times, E strada m ade it clear that he w as personally suspicious o f certain proposals (e.g. em issions trading), he did not block the negotiation o f any options based on his personal views if he thought they were necessary to get agreement. If a presiding officer is perceived as biased, then his/her authority and therefore ability to guide the negotiations can suffer irretrievably. The prime exam ple here is the Argentinian President of C O P 4, who, in her opening statement, expressed support for a highly controversial proposal by Argentina to enable developing countries to take on voluntary commitments. Although she did not stand in the way o f the removal o f this item from the provisional agenda in the face of im placable opposition from most developing countries, the perception of her bias towards this item dogged her throughout the Argentinian Presidency. Perceptions of bias can indeed be as important as actual bias. Although the

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D utch C O P 6 President Pronk went out o f his way to be sym pathetic to negotiating coalitions other than his own, the G -77 still tended to interpret his action s negatively, w hile he also fac e d acc u sa tio n s o f p artiality from industrialized countries. The U m brella G ro u p perceived inherent b ias tow ards the E U , w hereas the E U detected com pensatory swings tow ards the U m brella G ro u p , placing President Pronk in a very difficult position. A llegations o f bias have also been levelled (albeit rarely openly) at C hairs o f inform al groups. T h ese C hairs are often placed in an aw kward situation, as m em bers o f their negotiating coalition may have expectation s that their interests will be safeguarded, despite the need for the C h air to be im partial. Som etim es, the Chair h im /h erself may have a well-known position on the topic in question. R um ours o f partiality surroun ded the C hairs o f the L U L U C F , adverse effects, and technology contact grou p s at various points during the post-K yoto negotiations, although these were not form ally aired. N eedless to say, in a highly contentious negotiating environm ent, it is alm ost im possible for Chairs always to foster the perception o f neutrality. Interestingly, again illustrating the im portan ce o f experien ce and learning, the above-m entioned L U L U C F contact group Chair, H alld or Th orgeirsson , then went on to a very successful tenure as SB S T A Chair, w here im partiality w as never in question.

S tr e n g th of p erso n ality In all cases, a prerequisite for an effective presidin g officer is a strong personality that can w ithstand pressure and is not afraid to take decisions in the face o f conflicting views. T h is is especially the case in the com plex and conflictual clim ate change negotiating environm ent. An effective presiding officer m ust be able to maintain focus and direction in order to sustain the efficiency o f the negotiations, and not be side tracked or cow ed into changing course by strong w illed delegates. C h air Chow, for exam ple, in his chairing of the post-K yoto contact grou p on flexibility m echanism s, w as subject to very great pressure from delegates to m odify his approach to the negotiations, but largely succeed ed in holding his own groun d. C h air T h orgeirsson w as particularly praised by interviewees for being unafraid to tackle difficult issues in the negotiations head on, rather than being content with an ‘agree to disagree’ result. C hair E strad a was perhaps the m ost fam ously forceful presidin g officer, who stam ped his authority on the K yoto negotiations. At an A G B M session in early 1997, for exam ple, he sought to curb the lengthy restatem ent o f positions by only allowing interventions from parties m aking concrete p roposals. To enforce this ruling, E stra d a interrupted several delegates in the m idst o f their interventions, a highly unusual practice in U N forum s (see C h apter 7). H aving done so, he declared, ‘I ap ologise to those I in terru pted ... N ext time, there will be m ore! I h ope you understand w hy’ (A G B M 6, 1997). E strad a exerted his authority to push negotiators into a constructive negotiating m ode, challenging any party w hose stance he thought w as uncooperative, particularly the Annex I parties. H e frequently chided Ja p a n and the U S, for exam ple, for their tardiness in putting forw ard p ro p o sed em ission targets, while also reproaching

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the E U for its cum bersom e internal decision-m aking process. W hile the actual im pact o f such rebukes is difficult to quantify, they did maintain constant p ressure on the A nnex I parties. As the negotiations advan ced, E strad a grew b older in also challenging the G -77. E stra d a ’s forcefulness, however, meant that, in the w ords o f a secretariat interviewee, he som etim es ‘bruised pe o p le ’; his aggressiveness could be counterproductive and cause offence. In Kyoto, for exam ple, he accused the Brazilian delegation o f having com e to the conference ‘with an open h an d ’ (CoW , 1997c), a reference to B razil’s p rop osed clean developm ent fund. The suggestion that the fund had been p ro p o sed for B razil’s financial gain triggered a walk out by the Brazilian A m bassador. A couple o f interview ees rem arked that E strad a w as not universally liked and had annoyed several delegations. H ow ever, it w as critical to the p rocess that E strad a w as not afraid o f unpopularity. A s one N G O interviewee com m ented: H aving som eone with his personality and his initiative to . . . take c o n tr o l... to be un po pular at tim es, and not to please absolutely everyone 100 per cent o f the time, is necessary in a strong C hairm an, otherw ise you’ll never get an agre e m e n t. . . T hat he w as willing t o . . . take on that role w as absolutely essential. How ever, in an instructive illustration o f how differing chairing styles may be m ore or less ap p ro p ria te fo r differen t n ego tiatin g p h ase s, E s t r a d a ’s forcefulness w as less ap preciated, and indeed less effective, in his chairing of the S B I in the post-M arrakesh period.

Experience E x p e rie n ce o f com plex glo b al negotiatin g aren as, especially on the specific issue o f clim ate change, can be o f im m ense im portan ce to a presid in g o ffic e r’s perform an ce. In deed, m ost su b sid iary b od y C h airs tend to be ap p o in ted from am ong exp erien ced delegates, having acq uired the netw ork o f su p p o rt n eeded to b e nom inated by their regional gro u p . T h is is not the case, however, for C O P P resid en ts, w ho often assum e their post by virtue o f having offered to h ost the CO P. Even when this is not the case, C O P P resid en ts rarely have e xperien ce o f chairing glo bal n egotiation s, and have often not even attended a clim ate change m eeting b eforeh an d for m ore than a few h ours. The im portance o f experience is highlighted by the fact that several subsidiary body Chairs have im proved their perform ance during their tenure. Thorgeirsson and Chow were both cited in this respect by interviewees. Several noted how T horgeirsson had ‘grown into his role’, grow ing m ore confident and focused after a hesitant start. Similarly, after a shaky initial perform ance, Chow developed his own chairing style as SB ST A Chair that harnessed sufficient confidence am ong the parties for him to be accepted as sole Chair o f the flexibility mechanism s contact group, a pivotal position in the post-Kyoto negotiations. Unfortunately, C O P P residen ts rarely have the chance to learn from experience and im prove their presiding skills, as they arc only in place for one

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year, and usually only for one negotiating session. The exam ple of C O P 6 President Pronk is again instructive. H e was able to learn from the difficulties he faced at C O P 6 to develop a much m ore effective presiding style eight months later at C O P 6 (part II), where his understanding of the political dynamics o f the climate change negotiations and how to m anage these im proved dramatically, and his less dogm atic, yet at the sam e time more confident, approach were critical to achieving a consensus.

Technical k n o w le d g e Interviewees agreed that technical knowledge and political understanding of the issues at hand are important for a presiding officer. Without such knowledge and understanding, it is im possible to take informed and judicious decisions, let alone present substantive proposals. While understanding of the politics involved in an issue is always necessary, the importance of technical knowledge varies depending on the level of presiding officer. It can be very important for informal group Chairs, but is obviously much less so for C O P Presidents who, as ministers, cannot be expected to have a deep appreciation of the technical issues involved. Indeed, according to one interviewee: one o f the greatest form ulas for disaster in a m ultilateral negotiation is having a person who’s a super technician in c h a rg e .. .becau se the use o f those skills has all the m akings of creating frictio n . . . perhaps being too possessive of ideas and therefore inflexible, because after all, you know the subject so well, you know you are right. Technical knowledge has, however, proved very im portant to the effectiveness o f SBSTA Chairs. Thorgeirsson and H arald D ovland, for exam ple, were both technically minded Chairs who used their knowledge to guide the negotiations to good effect. Similarly, SBSTA Chair Chow had a sound understanding of issues relating to technology transfer, and was able to establish a lasting positive legacy in the climate change regime on that topic.

English la n g u a g e skills A good, but not necessarily perfect, com m and of the English language is necessary to preside over a global negotiation. D espite the availability of simultaneous interpretation and docum ent translation, negotiations are still alm ost always conducted in English, especially in the final stages. Even in plenary settings, inability to chair in fluent English can be a real obstacle. SBI Chair Bakary Kante and C O P 7 President El Yazghi both experienced these obstacles. Kante tried to chair in English, but faced difficulties in being understood and authoritative. H e was more effective when speaking in French, but some of his more subtle points were inevitably lost in translation. C O P 7 President El Yazghi, for his part, was hindered in his attem pts at consensus building by the fact that he could not speak directly to Anglophone heads of

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delegation, including the English-speaking Iranian G-77 Chair, and had to work through an interpreter. Native English, however, is not necessary, and indeed imperfect English can benefit a presiding officer. ‘English is not my m other tongue’ is an excuse commonly used by delegates, as well as presiding officers, to question a controversial proposal or explain away an unpopular suggestion. Im perfect English can indeed allow a presiding officer to speak in a more direct and candid m anner than w ould be diplom atically acceptable for a native Anglophone, a trick that E strada often used to good effect. Im perfect English can also be used by a presiding officer to generate affinity with the majority of parties, which are not native English speakers. E strada, for exam ple, although he chaired in English, addressed his fellow H ispanic delegates in Spanish, thereby underscoring his empathy for non-Anglophone developing countries, and the added difficulties these face in participating in the negotiations.

Nationality The im pact of nationality on effective chairing is difficult to gauge with confidence. In general, developing country presiding officers can enjoy a degree o f goodwill from the largest coalition, the G -77, that an Annex I party chair w ould find difficult to acquire. Furtherm ore, developing country presiding officers tend to have m ore latitude in their dealings with other developing countries, being able, according to one interviewee, to ‘speak and address both developed and developing countries’. A ccording to a European interviewee, ‘the developing countries can be rude to us and each other, but we [the Annex I parties] can ’t be rude to them ’. However, a number o f very effective presiding officers, including Thorgeirsson, Dovland and Szell, have all come from industrialized countries, suggesting that other skills and attributes are more im portant than nationality.

Diplom acy and e n ergy D iplom acy is, o f course, very important for the presiding officers o f global negotiations, where a diplom atic faux pas can lead to loss o f confidence and respect. An interviewee highlighted an incident whereby a subsidiary body Chair had committed the ‘diplom atic faux pas of interrupting China’, which he claimed had adversely affected relations between that Chair and developing country parties. Linked to the need for diplomacy is infinite patience - as one interviewee put it, ‘frustration must not be allowed to intrude’. It is certainly very hard to maintain diplom acy in the face o f so many hotly com peting points o f view and approaches, covering both sincere concerns and deliberate obstructionism . Even Estrada, in the final days of the Kyoto negotiations, found that his natural forcefulness was losing its diplom atic edge and turning into counterproductive aggressiveness. A host of other personal qualities are needed to effectively preside over a global negotiation. A large reserve of energy is one of these. N egotiations often continue round the clock, and the presiding officer must be able to sustain the

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vigour needed to make judicious decisions. E strada was notable in this respect. One interviewee commented, ‘I don’t know where he got his energy from, I really don ’t. But to keep the momentum is the thing that solved K yoto... he kept people off balance by his energy in keeping the whole thing going.’ E strad a’s energy was due not only to his character, but also to good personal management. H e attached great im portance to his rest and nutrition so that he had energy in reserve when it mattered.

S u m m a r y and concludi ng remarks This chapter has identified certain qualities that can contribute to the success of presiding officers, notably diplomacy, patience, energy, chairing skills, English language skills, impartiality and strength of personality. One thing is clear, however - there is no such thing as a set template for a successful presiding officer. A one size fits all approach to leadership is not helpful. Different types o f negotiation need different types o f leadership at different stages in the regime building, developm ent and strengthening processes. Different bodies also need different leaders. The attributes required o f a presiding officer who must regularly chair full plenary meetings of 185 countries are very different from those required of a presiding officer whose main m andate is to ‘wheel and deal’ a consensus am ong a few key players. Two basic related principles needed for effective leadership stand out continuity and experience. A s d iscu ssed above, the K yoto P rotocol negotiations benefited from having a single leader throughout the negotiation process, who was able to gain the confidence of parties and establish his authority over time, serve as a focus for the negotiations, and strategically plan the process, while the post-Kyoto negotiations suffered from the absence of any continuity in leadership. In addition, the case of the climate change regime suggests that, to be effective, presiding officers should have experience of the relevant regime, its political com plexities and sensitivities. In a num ber of cases, presiding officers have also improved their perform ance considerably, as they have built up experience. However, with the exception of the critical first factor relating to a single continuous leader, the extent to which such factors, including experience, can actually be implemented in the selection of a presiding officer is restricted, given that the election of officers is usually done on the basis of political deals between and am ong regional groups without, for exam ple, the involvement of the secretariat or another objective party with the overall interests o f the process at heart. Although it would be wrong to say that personal qualities and qualifications are not taken into account in the election o f presiding officers, they can play second fiddle to regional politics. Unfortunately, therefore, despite its central im portance in the organization o f a negotiation process, the presence o f an effective presiding officer possessing the right background and experience - whether for the COP, subsidiary bodies, or informal groups - can rarely be assured.

5

Bureaux

The Bureau is n ecessary ... but it doesn’t always work (interview).

Introduction This short chapter discusses the role of the C O P Bureau in organizing the climate change negotiation process. In doing so, it also touches on the roles of the other Bureaux in the regime, namely the Bureaux o f the two permanent subsidiary bodies - the SBSTA and SBI - and the Bureaux of the two former ad hoc bodies, the A G BM and A G 13.' The chapter begins by looking at the formal m andate and functions of Bureaux, before exam ining the actual contributions that Bureaux have m ade to the climate change regime at different points in the negotiation process.

C o m po si t io n COP Bureau It is common in multilateral negotiations for the presiding officer to be assisted by a Bureau, com posed of delegates elected by the parties. As set out in the rules of procedure, the C O P Bureau consists of 11 officers.' In addition to the C O P President and Chairs of the two permanent subsidiary bodies (see Chapter 4), these officers com prise seven Vice-Presidents and a Rapporteur. Given that the positions o f C O P President and subsidiary body Chairs are discussed in detail in Chapter 4, this chapter focuses mostly on the roles o f the Vice-Presidents and Rapporteur. The rules of procedure specify that each o f the five UN regional groups Africa, Asia, Central and Eastern E urope, Latin Am erica and the Caribbean and Western E urope and O thers - must be represented on the Bureau by two officers. The eleventh post is reserved for the small island developing states, given their particularly great stake in the climate change regime. The establishment o f this dedicated seat under the rules o f procedure was disputed at C O P 1, with some developing country oil exporters (notably Saudi Arabia and Kuwait) arguing that they too should hold a special seat on the Bureau, on

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the groun ds o f their potential econom ic vulnerability to the im pacts of response m easures. A lthough no form al rule w as agreed to this effect, the dem ands o f the oil exporters have been accom m odated through an inform al un derstanding that they will be represented through one o f the regional groups. In practice, this has m eant that O P E C has been represented on every C O P Bureau since C O P 2. Bureau m em bers from eligible countries receive funding to cover the costs o f their attendance at m eetings, in addition to the delegate(s) already funded from their country through the Trust Fun d for Participation (see C h apter 7). A s d isc u sse d in C h ap te r 4, B u reau m em b ers are elected through nom inations by the regional groups, which are then ru bb er stam ped in the C O P plenary. M em bersh ip o f the C O P Bureau is highly sought after, as it is perceived as the inner circle o f the regim e, granting access to inform ation and influence (Yamin and D ep ledge, 2004). It can prove difficult, how'ever, to fill the post o f R apporteur, as this is considered a junior post in the w ider U N system. R egional grou p s - especially the large, h eterogeneous ones, such as A sia - som etim es find it difficult to elect their representatives. At C O P 9, for exam ple, it proved im possib le to elect the B ureau until the last day. In accordan ce with the rules o f procedure, the outgoin g B ureau thus continued to meet to fulfil the Bureau functions. O fficers may be re-elected, but may not serve for m ore than two terms.*

S u b s id ia ry b o d y B u re a u x In addition to the Chair, the subsidiary body B ureaux consist o f only two m em bers, a V ice-President and a R apporteur. T h ere is no form al requirem ent for regional rotation, but achieving an acceptable geograph ical distribution over time is an im portant consideration. The rules o f procedure specify that subsidiary b odies other than the SB S T A and SB I should also have three-person B ureaux, elected with ‘due regard to the principle o f equitable geograph ical representation ’ (Rule 27). This approach w as indeed follow ed for the A G 13. The political significance of the A G B M , however, and the perception that m em bership o f its B ureau w ould wield valuable pow er and influence at least over procedural asp ects o f the negotiations, m eant that a three-person Bureau proved im possible to agree, largely due to O P E C ’s insistence on having its own seat. In an excellen t e x am p le o f the im p o rtan ce o f p rag m atism and im provisation in the interpretation o f the rules o f procedure, an innovative solution w as agreed at the third session o f the A G B M in 1996. T h is provided for the form al three-person B ureau to b e supplem en ted by six ‘ad visers’, plus the Chairm en o f the SB S T A and SB I ex officio. The total n um ber o f de facto B ureau m em bers thus rose to 11, allow ing the agreed C O P form ula to be applied to the A G B M , including representation o f O P E C through one o f the regional groups. T h e solution also provided for the post o f R ap porteur to rotate betw een the two full B ureau m em bers w ho w ould both be known as V ice-Chairm en. G iving both full B ureau m em bers the sam e status thus rem oved an area o f com petition between the regional groups.

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M a n d a t e and functions The only tasks of the C O P Bureau (except for the President) that are specified in the rules of procedure are to exam ine the credentials o f representatives to negotiating sessions and submit a report on these to the COP, and for the VicePresidents to replace the President in case of absence (Rules 20 and 24).4 The Vice-Presidents are usually called upon in the latter case for the chairing of the high-level general debate (see Chapter 13). The R apporteur has formal responsibility for the production o f the C O P report, which is presented in his/her name. However, his/her role usually am ounts only to a brief overview and rubber stam ping o f the secretariat’s work (Yamin and D epledge, 2004). The Bureau has assum ed a couple o f other procedural functions, either through direct m andate by C O P decisions, or unwritten practices that have introduced tasks for it. Pursuant to decision 14/CP. 1, the UN Secretary-General must consult with the C O P through the Bureau before appointing the Executive Secretary o f the Secretariat. The extent o f the B ureau’s involvement in this regard was a bone of contention am ong Bureau m em bers during the appointm ent of the second Executive Secretary, Jo k e Waller Hunter. The implications o f this controversy and insights that can be derived therefrom are discussed below. In terms of unwritten practices, the Bureau reviews the list of new N G O s/IG O s requesting adm ission, once these have successfully passed initial clearance by the secretariat and before they are presented to the C O P (see Chapter 14). This is an important role prior to subsidiary body sessions, as applicant organizations arc admitted as observers to those sessions on the basis of Bureau scrutiny, pending formal action by the C O P at its following session. However, although procedurally im portant, in practice the scrutiny o f applicant organizations is almost always a formality and serious questions are rarely raised. Like the role of the presiding officer, however, lack of detail in the rules of procedure belies a much greater informal role for the Bureau in providing processoriented leadership and organizational energy. The informal role taken on by the Bureau in this regard varies from session to session, depending on the personalities and attributes of its members, the preferred approach of the President, and the needs of the negotiation process. A key underlying factor to the work of the Bureau is that, unlike the President, Bureau members represent their constituencies - that is, the nominating regional groups - and are not, therefore, required to be neutral. The subsidiary body Chairs must toe a particularly delicate line when serving on the C O P Bureau, being required to maintain the impartiality that befits a presiding officer, yet also being required to represent their constituencies. C O P Bureau members are expected to elicit the views of their constituencies, and report back to them. However, they are also expected, as individuals, to promote the interests of the process, and therefore to supply constructive, rather than confrontational, input to the negotiations. The com position o f the Bureau - based on the formal regional groups rather than the negotiating coalitions - means that it is used almost exclusively for procedural and organizational matters, rather than substantive negotiation (Yamin and D epledge, 2004). Indeed, Bureau m em bers have no m andate from their constituencies to deal with substantive issues. For this reason, at highly

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political C O P session s, the C O P B ureau m em bership is often supplem ented by representatives o f negotiating coalitions, to form an ‘E x p an d ed B u re au ’. The E x p an d ed B ureau is then in a better position to take on substantive issues, as well as procedural issues with a substantive com ponent to them. The role of E x p an d ed B ureaux is discussed in m ore detail in C h apter 9. Unlike the position o f President, the other B ureau posts are served at the level o f officials. T h e exception is for m eetings during the high-level segm ent o f C O P session s, where countries on the B ureau will often be represented by attending ministers. The functions o f the subsidiary body Bureaux m irror those o f their counterparts on the C O P Bureau. The subsidiary body Vice-Chair is expected to replace the subsidiary body Chair in the event o f absence, while the subsidiary body R apporteur is formally responsible for the subsidiary body report. The subsidiary body Bureaux, however, have no other specific tasks akin to the appointm ent o f the Executive Secretary or scrutiny o f applicant N G O s.

I n f o rm al roles C O P B ureau m em bers are expected to supply process-oriented leadership and organizational energy to the negotiation p rocess in a n um ber o f ways. O ne of these is by chairing contact grou ps (Yamin and D ep led ge, 2004). C O P Bureau m em bers have been called upon to (co)chair contact groups in the h ope that this will be a non-controversial, accepted appointm ent. M em bers o f the C O P B ureau w ere especially draw n upon in this way at C O P 6 (part II), follow ing som e controversy over the chairing o f inform al groups. T here is no guarantee, however, that C O P B ureau m em bers will possess the necessary skills to chair contact grou p s, so the extent to which they can be drawn upon is, in practice, lim ited. In a sim ilar vein, C O P B ureau m em bers are routinely called upon to consult inform ally on sensitive or procedural issues, such as the election o f the forthcom ing Bureau. P erhaps the m ost im portant inform al role o f the C O P Bureau is to serve as a consultation forum , or early w arning system , for the C O P President (see also Yamin and D ep ledge, 2004). As noted in C h apter 4, C O P P residents are typically m inisters with limited experience o f the clim ate change process. The other C O P B ureau m em bers, who are usually officials with experience o f the clim ate change n egotiation s, can therefore provide im portan t inform al guidan ce and advice to the C O P President on how best to achieve a successful outcom e. To reiterate, however, this will alm ost always concern procedural and organizational, rather than substantive, m atters. T h e C O P P resident, for exam ple, may ask for advice on how to handle a contentious agenda item, or on how to organize the final stages o f negotiations (e.g. w hether and how to convene a friends o f the chair group). Bureau m em bers, for their part, may con sult with their con stituen cies, and p rovide initial feed back on the acceptability o f various proposals. It can be very im portant to seek feed back on potential ap pro ach es in this way, b efore form ally proposin g them , so that unanticipated objections or problem s can be overcom e. Similarly, Bureau

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m em bers them selves may spontaneously raise issues or problem s o f concern to their constituencies in C O P B ureau m eetings, thereby providing advance indication o f underlying tensions in the negotiations. A s one interview ee put it, the Bureau acts as a ‘m ini plenary’ or ‘focus g ro u p ’, providing a foretaste ‘o f how things will play o u t’ . A go od exam ple here concerns the A G B M Bureau. A t an A G B M Bureau m eeting in 1996, Saudi A rabia, a Bureau mem ber, raised questions regarding the six-m onth rule, requiring the draft text o f a protocol under negotiation to be circulated six m onths b efore its adoption. T h is prom pted E strad a to seek a legal opinion from the U N O ffice o f Legal A ffairs, which w as pivotal in deflecting the possibility that the six-m onth rule m ight be interpreted in a problem atic light (see C h apter 7). E strad a also used the A G B M Bureau to convey m essages to the regional grou p s, which he h oped w ould prom ote p rogress at the session. F o r exam ple, im m ediately prior to A G B M 8, the last session before C O P 3, he asked the Bureau to m ake it clear to their regional grou ps that he w ould not allow square brackets (in U N and sim ilar negotiating arenas, language that is not agreed ap pears in square brackets) to be reinserted into the C h air’s Text (A G B M B ureau, 1997). T h e Bureau is also called upon to supply organizational energy in respondin g to, and providing solutions for, organizational and procedural issues and problem s that may arise in the negotiation process. To this end, during the finales o f the post-K yoto negotiations at C O P 6 (parts I and II) and C O P 7, C hairs o f the key inform al grou ps were asked to report to C O P Bureau m eetings on progress in their negotiations. At C O P 7, for exam ple, the Bureau arbitrated on problem atic tim etabling issues for contact groups, decided w hether negotiating grou p s should be open or closed to observers, and set deadlines for w ork. T h e B u re au ’s role in taking such procedural decisions seem s to be increasing. W here new procedural questions have arisen requiring som e form o f form al sanction, the C O P B ureau has been called upon as a decision-m aker on behalf o f the regim e. A go o d exam ple here concerns requests by indigenous peoples and research and independent N G O s to form new constituencies, which, despite the absence o f any rule stating that this was necessary, were con sidered and sanctioned in the C O P B ureau (see also C h apter 14). This reflects the grow ing com plexity o f the climate change regim e, w hereby the secretariat h esitates to take action on significant procedural decisions on its own authority, yet taking such decisions to the C O P or subsidiary body plenaries w ould be an inefficient use o f resources. T h e C O P Bureau thus serves as a useful interm ediary body. T h e B u re au ’s decisions, however, are not officially circulated, and are often just com m unicated orally by m em bers to their constituencies, or by the President or other presiding officers to the relevant negotiating forum (Yamin and D ep ledge, 2004). T h is has, on occasion , caused controversy, as the recollection o f decisions by different Bureau m em bers has varied. D esp ite this, B ureau decisions are typically well respected, and the authority o f the Bureau is often invoked by presidin g officers to su p p o rt their own actions. In this sense, the Bureau can act as a legitim ating forum . Presiding officers can justify decisions on the organization o f the p rocess - allocation o f interpretation,

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scheduling, deadlines, use o f negotiating texts - by saying that these have been cleared by the Bureau. This legitimating function is particularly useful when decisions are needed outside the official negotiating sessions. The Bureau then serves as a legitimate forum for taking procedural decisions that are too great for the secretariat to take by itself. The best exam ple here concerns the date and venue of the forthcom ing C O P session, where information is often insufficient at the previous C O P session, and the Bureau is therefore asked to take a decision inter-sessionally based on, for instance, a secretariat technical mission. This occurred, for exam ple, at C O P 9, when the Bureau was asked to consider further information to be provided by the bidding city for C O P 10, Buenos Aires. Another case is the organization of the high level ministerial segment at a C O P session. At SB I 18, for exam ple, the SB I decided that roundtable discussions would be held at the forthcom ing C O P 9 but asked the C O P Bureau to ‘give further consideration to the details and form at’ of these (e.g. see SBI 18 report, paragraph 43e). In response to this mandate, the C O P Bureau decided on the number, themes, timing and participation at the ro un dtables (e.g. see F C C C / C P / 2 0 0 3 /l/ A d d .l) , with its decision s subsequently endorsed by the C O P at its opening plenary. It is perhaps inevitable that, in some cases, individuals have used the opportunities afforded to them by their membership of the Bureau and exerted organizational energy to pursue politically motivated topics or issues of personal concern. An exam ple here is the way in which the procedure for the appointment of the new Executive Secretary (upon the retirement of the first Executive Secretary, Michael Zammit Cutajar) was questioned by a Bureau member, who, it is alleged, was motivated by the desire of his constituency to veto the appointment of a particular candidate. In som e rare instances, the Bureau has exerted real process-oriented leadership; here, leadership is distinguished from the more routine supply of organizational energy, in the sense that the Bureau has, through an unsolicited initiative, filled a vacuum in direction to advance the climate change process. The best exam ple o f this is from C O P 6 where, following the collapse of negotiations, the Bureau met and urged C O P President Pronk to suspend the session, and reconvene it a few months later. This procedural solution, which was proposed by individual m em bers and supported by the Bureau as a whole, helped to avoid declaring the session a failure, while being organizationally simpler than the convening of an extraordinary COP. H ere, the C O P Bureau was able to step in and take over at a time when the C O P President and parties were exhausted and unable to come up with a procedural solution to sustain the momentum of the process. Individual m em bers have also taken the lead at particular points in time to provide sorely needed direction to the process, although there are few such instances. At C O P 6 (part II), for exam ple, VicePresident Raul E strada helped move negotiations forward by offering to prepare a single docum ent bringing together the outputs o f the individual negotiating groups as input to the high-level segment. This docum ent (F C C C /C P /2001/C R P .8), clearly listing issues and options, proved to be very useful in structuring the subsequent negotiations (see also Chapter 11).

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The Vice-Chairs and Rapporteurs on the subsidiary body Bureaux may perform similar roles - acting as an early warning system or focus group, legitimizing decisions, taking decisions in between sessions, or taking the lead where necessary. However, given the more technical and lower profile nature of the work of the subsidiary bodies, it is rare that subsidiary body Bureau m em bers have much scope to exercise these informal functions. For the most part, subsidiary body Bureau m em bers do not take on much o f a role in supplying organizational input, energy or leadership, but rather stick to their (very few) formal functions.

Skills and qualities The activities o f each C O P Bureau and its perform ance will depend on two main factors: the use that the President wishes to make o f the Bureau, and the skills and qualities o f its members. Regarding the former, most C O P Presidents have w elcom ed the potential contribution of the Bureau, although som e have been more proactive than others in seeking input and advice. In terms o f the skills and qualities needed in a Bureau, perhaps the most important is experience. Bureau members with longstanding knowledge and understanding of the climate change negotiation process can be immensely helpful to a C O P President. The fact that John Ashe and Raul Estrada, two highly experienced delegates, were on the Bureau at C O P 6 certainly helped the Bureau to take the lead and offer the procedural solution to the collapse of negotiations discussed above. Unfortunately, however, membership of the C O P Bureau can be seen as a perk, given that it confers prestige, as well as additional financial support for delegates to attend negotiating sessions. Some constituencies will therefore nominate representatives who do not have experience o f the negotiations, and who therefore find it hard to contribute constructively. Almost ever)' Bureau will therefore have its silent members who rarely speak. An ability to present a balanced point of view and constructive suggestions, while at the same time representing a constituency, is also important. The greatest danger within a Bureau is indeed politicization, where som e Bureau m em bers do not act, or are perceived as not acting, in the interests o f the process, but exclusively to further their constituency’s - or personal positions. This was the situation for the A G B M Bureau, where wrangling over its m em bership meant that, once appointed, it was seen as a highly political body, som e o f w hose m em bers were known as o b stru ction ists. The politicization of the A G B M Bureau meant that less use was m ade o f it by the Chair than he might otherwise have done.

S u m m a r y and concludi ng remarks The informal roles taken on by Bureaux have varied from session to session, as have their perform ance. M ost interviewees, whether interviewed in 2000 or 2003, were rather lukewarm about the respective C O P Bureaux they had

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ex p e rie n ce d . O n e interview ee, w ho had served on the C O P B u reau , com m ented, ‘it’s so-so. It depen ds a lot on the people on it.’ O thers stated that representation w as ‘not particularly star quality’ and the B u re au ’s role ‘not terribly im pressive’ . This im pression is partly due to the silent m em bers on the B ureau who rarely m ake a contribution, and partly to the obvious political agenda o f som e others. N evertheless, the C O P Bureau has grow n in im portance over time, as the com plexity o f the climate change negotiation process has increased, and m ore organizational decisions with political im plications are needed. In som e cases, it is becom ing increasingly difficult for the secretariat or presidin g officers alone to take a decision - on the scheduling o f contact grou p s, say, or allocation o f interpretation - so that the Bureau is called upon to arbitrate. T h e Bureau also ap pears to be taking m ore decisions inter-sessionally. At present, however, the role and functions o f the C O P Bureau remain ad hoc and unwritten, and still vary greatly depen din g on the n eeds o f the negotiation p rocess and the approach o f the C O P President. F o r m ost delegates, the C O P Bureau remains a rather shadow y body w hose nature is poorly understood. A s the climate change regim e b ecom es organizationally m ore com plex, it is likely that the role o f the Bureau will continue to expan d. This could im ply the need for m ore form alization o f its role and m ore transparency in its dealings, including, for exam ple, the publication o f its decisions and reports on its m eetings.

5

The Secretariat

T h e secretariat can ’t deliver success, but it can deliver failure (secretariat interview).

I nt roduct ion T h e secretariat is usually the only full-time actor within a regim e, rem aining active betw een session s o f the C O P and subsidiary bodies. Like presiding officers and bureaux, secretariats o f different regim es, and at different points in time, can vary greatly in their levels o f activism . W ettestad (1999), for exam ple, distinguishes betw een ‘ assistan t’ and ‘player’ secretariats, Sandford (1994) m akes a distinction between ‘actors’ and ‘stageh an ds’ , and M iles et al (2002) identify a range, from secretariats ‘confined to office and reco rd ­ keeping fun ction s’ to those providing ‘political in puts’ and ‘prom otin g own ideas and solu tio n s’. The im portance o f a com petent secretariat - w hether active or passive - to the success o f a negotiation process is recognized in the literature, although it is not seen as pivotal, and certainly less im portant than that o f the presidin g officer (see L an g, 1989a; San d ford, 1994; A ndresen and Skjaerseth, 1999; W ettestad, 1999; M iles et al, 2002). How ever, this m ore m odest role attributed to secretariats may be a reflection o f the fact that secretariats prefer their activities not to be n oticed; as we shall see in this chapter, invisibility may thus be a sign o f effectiveness, rather than irrelevance. T h is chapter explores the role o f the secretariat in the clim ate change negotiations, and how it has changed over time in tandem with each successive negotiating phase. In doing so, it focuses alm ost exclusively on the secretariat’s role in p rovidin g su p p o rt to the n egotiation p ro ce ss, rath er than its program m atic activities.1

I nsti tuti onal a r r a n g e m e n t s In the sam e resolution that launched negotiations on the Convention in 1990, the U N G A requested the U N Secretary-G eneral, in consultation with the h eads o f U N E P and the W orld M eteorological O rganization (W M O ), to establish an ‘ad h o c’ secretariat to provide su pp ort to those negotiations (U N G A Resolution 45/2 1 2 , paragraph 12). As is com m onplace in international

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treaties, the Convention itself then called on C O P 1 to ‘designate a perm anent secretariat and m ake arrangem ents for its functioning’ (Article 8.3). C O P 1 duly did so, in effect confirm ing the existing Intergovernm ental N egotiating C om m ittee (IN C ) secretariat as the perm an en t C on ven tion secretariat (decision 1 4 /C P .l). A lso at C O P 1, parties decided (through a secret ballot, the only ‘vote’ ever taken in the climate change regim e) to accept an offer from G erm any to host the secretariat h eadquarters (which had, up to then, been located in G en eva) (decision 16 /C P .l). T h e perm anent secretariat m oved to Bonn in A u gust 1996 (Yamin and D ep ledge, 2004). T h e secretariat is ‘institutionally linked to the U nited N atio n s’ (decision 1 4 /C P .l), and thus adm inistered under U N rules and regulations - for exam ple, concerning staffing structure, finance and adm inistration. The core funding for the secretariat is secured through financial contributions from all parties, their shares being b ased on the U N scale o f assessm ent. In addition to the core budget, other trust fun ds adm inister voluntary contributions to cover the costs o f participation at negotiating sessions o f eligible delegates from developing countries and E IT s (see C h apter 7), and to finance specific additional projects and activities. T h e level o f the core budget, and requested levels o f the other funds, are set in the program m e b udget, which is ad opted by the C O P every two years. The core b udget o f the clim ate change regim e has alm ost doubled since entry into force o f the Convention, from just over U S$9.2 million for 1996 to just over U S$17.3 million for 2005 (see decisions 17/C P .l and 1 6 /C P 9 ). A lthough it is now slow ing dow n, this rapid grow th bucks the general trend in U N institutions, and reflects the im portance attached by parties to the issue o f climate change, along with the rapid developm ent o f the regim e’s rules, including the adoption o f the K yoto P rotocol (Yamin and D ep ledge, 2004). T h e secretariat is staffed by U N civil servants. T h e head o f the secretariat, the Executive Secretary, is ap poin ted by the U N Secretary-G eneral (in consultation with the C O P B ureau - see C h apter 5). Since 2001, the E xecutive Secretary has been assisted by a Deputy. N ext in the hierarchy are the handful o f program m e coordinators; o f particular consequence for this b ook are the coordinators responsible for each o f the three perm anent bodies: the CO P, SB S T A and SB I. Then com e what m ight be term ed the issue m anagers, who m anage the secretariat’s w ork on particular topics, technology transfer, G H G inventories, public outreach and so on. W orking under the issue m anagers are the rem ainder o f the lower-ranking professional - known as ‘P ’ - staff, along with the general - or ‘G ’ - staff, m aking up the secretarial, adm inistrative and clerical w orkforce. A striking feature o f the secretariat in organizational term s is how rapidly its staff has grow n, indeed faster than the increase in the core budget. In Jan u ary 1995, just before C O P 1, the secretariat consisted o f 34 staff (20 P). E igh t years later, in 2003, the n um ber o f approved posts in the secretariat had risen nearly five-fold to 168.5 (93 P ) .2 The very rapid grow th o f the secretariat has inevitably brought with it som e organizational challenges. T h ese were m ost in evidence during and im m ediately after the K yoto Protocol negotiations, that is, follow ing the m ove o f the headquarters from G eneva to Bonn. The

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secretariat is now a much m ore settled and stable organization. T h rough out its history, and despite the upheaval associated with rapid grow th and the m ove to Bonn, the secretariat has benefited considerably from the continuity in its senior staff, notably the first E xecu tive Secretary, w ho served for over a decade.

M a n d a t e a nd f u n ct i o ns Th e m andate and functions o f the secretariat are circum scribed by four main sources: • • • •

the Convention the rules o f procedure the biennial program m e b u dgets and specific requests m ade by the C O P and subsidiary bodies.

The C onvention sets out the general functions o f the secretariat in a ‘rather stan dard way for international environm ental p olitics’ (W ettestad, 1999, p217), and these functions are elaborated on a little in the rules o f procedure. In term s o f su pp ort to the negotiations, both the Convention and the rules o f procedure em phasise the logistical role o f the secretariat. ‘To m ake arrangem ents for session s’ o f the C O P and subsidiary b o d ies and ‘to provide them with services as req u ired ’ is the first function set out in the Convention. The rules of procedure, in turn, specify particular functions in relation to interpretation, docum entation and record-keeping. Th e program m e b udget sets out a m ore detailed w ork program m e for the secretariat for the com ing two years. T h e C O P and subsidiary b odies then request specific tasks, such as preparin g docum en ts, organizing w orkshops, com piling inputs from parties and dissem inating inform ation. W hile the secretariat is boun d to com ply with the requests o f the regim e b odies, it has, when necessary, m ade it clear that insufficient resources are available, or a request is sim ply im practical or procedurally inappropriate. The ‘S taff V ision ’ o f the secretariat (see www .unfccc.int), p repared by secretariat staff m em bers them selves, provides a succinct and useful sum m ary o f the secretariat’s role by identifying three key tasks: • • •

providing organizational su pp ort supplying technical expertise and facilitating the flow o f authoritative inform ation.

Ju st like the presiding officers discussed in C h apter 4, the rather loose definition o f the secretariat’s functions m eans that it has the potential to take on a much b ro ad er inform al role in helping to steer the negotiations to success through the su p p ly o f organ ization al energy, or even p rocess-orien ted leadersh ip. How ever, the extent to which the secretariat can exercise this potential for activism rests on the delicate balancing o f the differing pressures and expectation s upon which its role is constituted.

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T h e secretariat's t w o m a s t e r s Sim ilar to the p re sid in g o fficers, the secretariat is e x p e c ted to help steer the n egotiation s to a su ccessfu l con clusion . H ow ever, this exp ectation d o e s not exten d to one o f true leadership-, the p arties d o not e x p e ct the secretariat to lead, b ut rather to assist them . In the m inds o f parties, the secretariat is their servant, not their leader, and this also con stitutes the p u b lic view o f the secretariat. T h e secretariat S ta ff V ision, for exam p le, p re fa c es the statem en t o f its role by saying that it is ‘gu id ed by the parties to the C o n v en tio n ’ . A t the sam e tim e, however, the perm an en t organ ization al structure o f the secretariat can gen erate tension with parties, m o st o f w hich g u ard their sovereignty jealously and are sensitive ab o u t relin quish ing pow ers to an in tergovern m en tal organ ization . T h e secretariat m ust th erefore en sure that it can justify its action s against its m an d ate and that it m an o eu vres within its sp a ce for action even m ore carefully than the p resid in g o fficers w ho are not seen as a poten tial threat to sovereignty. T h e m ost im portan t com m od ity for a secretariat - m ore than efficiency or even com p eten ce - is im partiality, and con fid en ce in that im partiality. A s a b o d y o f in ternational civil servants, the secretariat is required b y U N S ta ff R ules and R egu lation s to serve the p arties in an u n b iase d m ann er an d not to p ro m o te o r su p p o rt any p articu lar poin t o f view (see S T /S G B /2 0 0 2 / 1 , regulation 1.2; Yam in and D ep le d g e , 2 004). T h is is even m ore im portan t to the su ccessfu l developm en t o f the regim e than the necessary im partiality o f presid in g officers. W hile any su spicion o f b ias in a presid in g o fficer w ould only affect the regim e du rin g the in d iv id u al’s term o f o ffice, p e rce p tio n s o f partiality w ithin the secretariat w ould b e a m uch m ore persisten t prob lem that could pu t the w hole p ro c e ss in jeopardy. H ow ever, w hile the secretariat is im partial tow ards the variou s con trastin g p o sitio n s o f the parties, it is not neutral, in the sense that, as a body, it is ded icate d to p rom otin g the su cc e ss o f the regim e (Yam in an d D ep le d g e , 2004). T h e secretariat S ta ff V ision em p h asizes from the o u tset that the secretariat su p p o rts ‘coop erativ e action by states to co m b at clim ate ch an ge and its im p acts on h um anity and e co sy ste m s’ . It th erefore takes as given that clim ate change is a p ro b lem , and one that necessitates a re sp o n se cen tred on international collab oratio n . T h e d ifferen ce betw een im partiality an d neutrality w as exp lain ed thus by form er E x e cu tiv e Secretary Z am m it C u tajar in his interview : T h e secretariat is ob jective [im p artial], b ut n ot neutral. I say this b e cau se o f a w ise saying o f R aul P reb isch , my first b o ss in [the U N C on feren ce on T rade A n d D ev elo p m en t] U N C T A D . H e said ‘as a secretariat we are ob jective, b u t we can n ot be indifferent to d e v e lo p m e n t. W e c an n o t be n eu tral. W e are fig h tin g for d e v e lo p m en t’. So w hen p eo p le try to b lo c k the [clim ate change] p ro c e ss, we can ad m ire their negotiatin g skill, b u t we can n ot be in differen t. We are here fo r a reason , n ot just a take h om e salary. W e have a com m itm ent.

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Fundam entally, the secretariat is thus required to serve two m asters: on the one hand, as the guardian o f the clim ate change regim e, it is obliged to supp ort the ultim ate objective o f that regim e and therefore both to ad dress clim ate change in a m eaningful way, and to achieve success in the ongoing negotiations. O n the other hand, the secretariat is subservient to, and dependent on, the will o f the parties, having been established to serve them (Yamin and D ep ledge, 2004). G iven the presence o f obstruction ist parties in the regim e, these two goals do not always coincide. As Sand ford notes, ‘secretariat objectives may be at odd s with the objectives o f individual treaty parties, even though secretariat objectives may be aligned with those o f the treaty itself’ (San dfo rd, 1994, p23). T h is tension has always been inherent in the secretariat’s w ork, and has occasionally surfaced in dealing with obstruction ist parties, as alluded to by the Execu tive Secretary above and as discussed further below. T h e tension betw een the secretariat’s two m asters recently cam e to the fore in the context o f uncertainty over the K yoto P ro to co l’s entry into force, and the fact that som e pow erful parties (e.g. Australia and the U S) do not intend to ratify it (Yamin and D ep ledge, 2004). O n e interviewee from a non-Kyoto party e xpressed the view that ‘the response to the U S w ithdraw ing from K yoto has been m anaged in a way that has left the secretariat to be on one side o f the fen ce... it’s not quite the silent hand that was much m ore evident in the past when no one could pin down secretariat p olitics’. Certain public inform ation docum ents produced by the secretariat have provoked private accusations of b ias for assum ing that the K yoto P rotocol is the way forw ard fo r the regim e. T h e perception that the secretariat’s su p p o rt for the K yoto P rotocol constitutes partiality is problem atic, given that the Protocol is a legal text o f the regim e and has been ratified by the vast majority o f the C on ven tion ’s parties. The dilem m as faced by the secretariat in this regard are likely to becom e m ore acute with the entry into force o f the K yoto Protocol.

The veil o f le gitim acy An im portant m eans o f m anaging the tensions inherent in the w ork o f the secretariat is its sym biotic relationship with the presiding officers (or bureau), through which the secretariat carries out its activities and presents p roposals under the responsibility o f these elected officers. In doing so, the secretariat covers its own actions with a ‘veil o f legitim acy’ o f approval from the elected officers. This veil o f legitim acy is absolutely fundam ental to the secretariat’s work. As d iscu sse d fu rth er below , the secretariat p ro v id e s c o p io u s am ou n ts o f organizational energy to the negotiation process, m aking not only procedural pro p o sals on how to m anage the negotiations, but also substantive p rop osals on how to resolve differences betw een parties. T h e only way in which the secretariat is able to m ake those proposals and put them into practice is to do so through the relevant presidin g officer who, assum ing s/h e is p ersu aded o f the merits o f the p roposal, will put it forw ard in h is/her name. T h is is accepted practice. As discussed in C h apter 4, presidin g officers them selves do not always have the expertise, and rarely have the time, to engage in either detailed substantive drafting or reflection on organizational m atters. The secretariat thus

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perform s a valuable function in doing the thinking that provides the basis for the exercise o f leadership by the presiding officers. The presiding officers, however, will always have the final say in whether a particular approach - substantive or procedural - is taken. The im portance o f the veil o f legitimacy is illustrated by the citation below. This reproduces a response by China (echoed by others) to a suggestion m ade at an informal group during the Kyoto Protocol negotiations that the secretariat should be asked to merge written proposals on a relatively uncontroversial issue. If you ask the secretariat to do ... only compilation ... they will do it very perfectly. But i f you ask the secretarial... to merge something, there is the danger you will put the secretariat in a very delicate position . . . I w o n d e r... if we might request that you yourself [the inform al group Chair] take responsibility for directing the secretariat. In this way, it would be a p arty... a member o f this negotiating process, not the secretariat, who would be responsible. We would accept, anticipate and ... believe that the secretariat would facilitate your w o rk ... but by your taking responsibility, we might overcome this hurdle (A G BM 7, 1997a, em phases added). In the end, the secretariat did merge the proposals and the informal group Chair m ade no changes to the secretariat’s draft, but the fact that he exerted form al oversight over the secretariat’s work was critical to the eventual legitimacy o f the merged text. The effective functioning o f the veil o f legitimacy is dependent on the relationship between the secretariat and the presiding officers. Where the secretariat has a good relationship with the presiding officers, this is o f great benefit to the process. A prime exam ple here is the relationship between Chair E strada and the secretariat during the Kyoto Protocol negotiations. The secretariat, and particularly the Executive Secretary, enjoyed an excellent relationship with E strada, built up over a long period since E stra d a’s involvement in the IN C . The secretariat and E strada remained in regular com m unication, especially by e-mail, between negotiating sessions, exchanging information and ideas. The appropriate relationship between presiding officer and secretariat, and especially the im portance o f the veil o f legitimacy, was clear to both players, which was critical in allowing the secretariat to move more freely within its space for action. E strada did not hesitate, for exam ple, to publicly defend the secretariat at any unfounded suggestion that it had acted improperly. O ne such case occurred at A G B M 8 (part II) on the eve of C O P 3, where som e developing country parties objected to the latest negotiating text, on the grounds that the G-77 and China proposal for single year targets had been excluded in favour of multi-year targets. Unusually, the secretariat itself was criticized in plenary. Estrada, however, rose to the defence o f the secretariat, insisting that the negotiating text was issued under his name. E strad a’s intervention was very important here in maintaining the veil of

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legitim acy surrounding the secretariat. A lthough the parties knew perfectly well that the secretariat had done the actual w ork on the text, they had to accept that the final product w as issu ed under the C h air’s responsibility, and therefore that the secretariat could not be accused o f any bias. It was accepted that the Chair, unlike the secretariat, did have a legitim ate role to play in exercising leadership and putting forw ard p roposals that he thought w ould eventually com m and consensus. The relationship betw een secretariat and C O P P residents tends to be m ore com plicated than with subsidiary body or inform al group C hairs, as the C O P President will often have a larger retinue o f national advisers, who may give conflicting advice to that o f the secretariat. T h is h appen ed m ost noticeably, albeit to varying degrees, at C O P 3 in Ja p a n , C O P 4 in Argentina and C O P 8 in India. An interesting case concerns C O P 6, under the D utch Presidency, when cooperation betw een the secretariat and C O P Presidency team im proved considerably betw een the failed C O P 6 and the successful C O P 6 (part II). Even ou tsid e the im m ediate negotiation process, the secretariat has been extrem ely cautious in the m anagem ent o f its pub lic face. It has, fo r exam ple, ad op ted a rather m inim alist ap pro ach to pub lic inform ation, produ cin g only a sm all n um ber o f gu id es and inform ation sheets on the issue o f clim ate change and the political process. T h is con trasts with the m uch greater public inform ation cam paigns o f U N E P on b eh alf o f the ozone secretariat,5 which has prep ared a con siderab le body o f new sletters, b ook lets, leaflets, posters, calen dars and other m aterial on the ozon e layer. T h e clim ate change se c re ta riat, h ow ever, has b een m uch m ore re strain e d , aw are o f the sensitivities surroun ding the presentation and interpretation o f the severity, causes of, and potential solutions to, clim ate change.4 T h is ap pro ach is reflected in the N ew D elhi w ork program m e on education , training and pub lic aw areness (decision 11/C P.8). T h is five-year program m e o f w ork is b ase d on a ‘country-driven ap p ro ach ’ and focu ses strongly on action s at the n ation al level. A lthough the role o f IG O s, N G O s and com m unity-based organizations is highlighted, the secretariat is con fin ed to a facilitative role, com piling and coordinating inputs from parties and the other organizations, and setting up an inform ation-clearing house. T h e secretariat is certainly not expected , by this decision, to be produ cin g its own exp an d ed range o f public inform ation m aterials. A great deal o f effort has been expen d ed by the secretariat to ensure the absolute objectivity o f its inform ation m aterials, within the fram ew ork of accepting clim ate change as a serious reality and the U N F C C C as the starting point for tackling it. Secretariat staff have been extrem ely reluctant to paraph rase or sim plify com plex negotiated text (e.g. the Convention, Protocol, C O P decision s), even to m ake it m ore accessible to non-experts, for fear o f in flam ing sen sitiv ities and b ein g acc u se d o f b ias. In terp retatio n an d assum ption have also proved dangerous. In an early version o f one o f its p op u lar guides to the C onvention and K yoto Protocol, for exam ple, the secretariat suggested, in a tabular chronology o f the history o f the p rocess, that the K yoto Protocol m ight com e into force in 2002 (with two question m arks to highlight the tentative nature o f this). This reflected the aspirations o f m ost

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go vern m en ts that the P ro to co l should com e into force in tim e for the W orld S u m m it on S u sta in a b le D e v e lo p m e n t (W S S D ) (Jo h a n n e sb u r g , A u g u st-S e p te m b e r 2 0 0 2 ) and the anniversary o f the C o n v e n tio n ’s ad o p tio n , and lin ked u p with the exp ectation that n egotiation s on the B u en os A ires Plan o f A ction w ould con clu de by 2 000. A govern m ent, however, raised an ob jection to this, statin g that the entry into force o f the K y oto P ro to co l w as a m atter for the parties, not the secretariat, and the gu id e h ad to b e m odified.

C o n f i d e n c e a n d tru st Ju d ic io u s use o f the veil o f legitim acy and caution in its p u b lic face m ean s that the secretariat h as lon g enjoyed a reservoir o f trust am on g the p arties in both its im partiality an d effectiven ess, w hich h as tran slated into con fid en ce in the n egotiation p ro c e ss itself throu gh ou t its history. W hile there have been tim es w hen the secretariat h as m ade m istakes, or its actions have been qu estio n ed (see e x am p le s given below ), the p arties have generally ad o p te d a h an d s-off a p p ro ach to the secretariat, trustin g in its com p eten ce and integrity. T h is trust has built up since the se cretariat’s establish m en t due largely to the ju dgm en t, intelligence an d p erso n al affability o f the first E xecu tiv e Secretary. It is significan t that M ich ael Z am m it C u tajar cam e from a U N b ac k g ro u n d , having risen u p the ran ks o f the U N C T A D secretariat. H e therefore ‘b rou gh t with him excellen t k n o w ledge o f the p e o p le in the U N system and the n ecessary grasp o f c o m p lex U N p ro c e d u re s’ (K jellen, 1994, p l5 2 ). H is U N C T A D exp erien ce en dow ed Z am m it C u tajar with a deep un d erstan d in g of, and sym pathy for, develop in g country concerns. H is M altese nationality w as also an asset, with M alta b ein g, at the tim e, b oth a m em b er o f the G -77 and a state asp irin g to E U m em b ersh ip . O v er his d e cad e as E xecu tiv e Secretary, Z am m it C u tajar b uilt up a g o o d relation ship b ase d on respect an d trust with all parties, even the o b stru ctio n ists am on g them , kn ow in g how to resp o n d effectively to attacks on the secretariat o r the p ro ce ss. T h e tribu te to Z am m it C u tajar a d o p ted as a resolution on his retirem ent at C O P 7 illustrates the great respect in w hich he w as held by the parties, referrin g to ‘his achievem ent in b uildin g and leadin g an efficient and respected se c re ta ria t. . . his fairn ess and o b je c tiv ity ... com m itm ent, profession alism and acu m en ’ (resolution 2/C P .7). To a large exten t, the secretariat has retained this reservoir o f trust follow in g the h an d over to the new E xe cu tiv e Secretary, Jo k e W aller H u n ter (the N eth erlan d s). W aller H u n te r’s ap p oin tm en t b y the U N Secretary -G en eral w as w idely ap p la u d e d as a w ise m ove, an d the ch an ge in lead ersh ip at the top o f the secretariat h as been relatively sm ooth . W aller H u n te r ap p e ars to b e su cce ed in g in u p h o ld in g the secretariat’s go o d rep utation . O n e interview ee com m en ted on how she h ad ‘m an aged to p ro v id e the secretariat with real credibility in difficult t im e s .. .sh e deserves m uch credit for th is’ . T h ere are sign s, how ever, that the lon g-stan din g con fid en ce in the secretariat can no lon ger b e taken for gran ted. At C O P 9, fo r e xam p le , the G 77 an d C h in a called for a contin uin g review o f the function and op eratio n s o f the secretariat. T h e p ro gram m e b u d g e t for 2 0 0 4 /2 0 0 5 also in clu des a clause

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requesting the E xecutive Secretary to ‘specify’ how C O P decisions relating to Article 4.8 - that is, the adverse effects o f clim ate change and response m easures on developing countries - are reflected in the w ork program m e, along with a further request to conduct an ‘internal review ’ o f the secretariat’s activities and report thereon to the C O P (decision 16/CP.9). T h ese clauses suggest the desire o f parties, or at least the developing countries, to exercise m ore scrutiny over the secretariat’s activities. As part o f the continuing review, initiated at SB I 20 in 2004, the G -77 and China raised questions over the geograph ical representation o f secretariat staff, while calling for ‘neutrality in preparin g docum en ts, and equity in the allocation o f resources for issues concerning developed and developing countries’ (E N B , 2004, p l2 ). T h e E xecu tive Secretary h erself also faced criticism over statem ents m ade at public events that were interpreted as biased by certain parties, notably Saudi A rabia. The fact that these challenges are em erging now is certainly prom pted, at least in part, by genuine concerns, notably over the low representation o f developing country nationals am ong top secretariat staff. U ndoubtedly, however, it also reflects opportun ism by certain parties who see the secretariat as a vulnerable target in the pursuit o f their political objectives. In this respect, the appointm ent o f a new E xecutive Secretary from an industrialized country (however com petent she may be) and the loss o f the establish ed relationship with Zam m it C utajar has provided parties w ishing to do so with a window o f opportunity to attack the perm anent force o f the regim e.

S u p p l y i n g o r g a n i z a t i o n a l e n e r g y to the n e g o t i a t i o n s T h e secretariat can, and does, supply organizational energy to the clim ate change negotiations in many different ways. T h ese are discussed below.

Logistics T h e m ost b asic com ponent o f the organizational energy supp lied by the secretariat is a logistical one, perform ed prim arily by the conference services departm ent, in collaboration with the U N O ffice at G en eva (U N O G ). This includes, for exam ple: ensuring the supply o f sufficient appropriately sized m eeting room s; providing interpretation facilities into the six U N languages; processin g docum ents, including translation and distribution; m aking venues available for inform al and unofficial m eetings; and identifying spaces for N G O s , other observers and indeed parties to hold side events and exhibits (see Yamin and D ep ledge, 2004). T h e se c re ta ria t’s lo g istical w ork is critical to the m an agem en t o f com plexity, and the alleviation o f procedural inequality am ong participants. It is the responsibility o f the secretariat, for exam ple, to ensure that inform ation is freely accessible on the scheduling and location o f m eetings and on the availability o f docum entation, in order to m axim ize the opportun ities open to all delegates to participate in the negotiations, as well as to minimize

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tran saction costs. D eleg ates arc kep t in fo rm ed prim arily through a printed daily pro gram m e o f m eetin gs. R eflecting the grow ing com plexity o f the n egotiation s and the m ultiplicity o f events takin g place at any one tim e, since m id -1997 electronic n o tic e b o ard s and (m ore recently) C C T V have d isplay ed a continually u p d ated full sch edu le o f form al, in fo rm al and side event m eetings. Sin ce 1998, the daily p rogram m e o f m eetin gs has also p ro v id ed a sum m ary o f the statu s o f n egotiation s on all agen da item s, indicating w here an item is b ein g w orked on (e.g. con tact g ro u p , in form al co n su ltation , plenary) and which p re sid in g o fficer is re sp o n sib le for the n egotiation s. T h e im portan ce o f go o d logistics in a n egotiation is often u n derestim ated . H ow ever, in a co m p lex, glo b al m ultilateral p ro c e ss, if logistical issu es ‘are not p ro p erly ad d re sse d , the w hole m ach inery gets out o f o rd e r an d no m ean in gful results can be ach iev ed ’ (K jellen, 1994, p l5 2 ). At C O P 6 (part II) and C O P 7, fo r exam p le, the con feren ce services d epartm en t w as req u ired to p rep are room s for high level m eetin gs o f the frien ds o f the C h air to very detailed sp ecification s at ju st a few h o u rs’ n otice, in clu din g the provision o f security, u n iqu e entry p a sse s, sp ecial coun try flags and u n u su al seatin g arran gem en ts. T h at they w ere ab le to d o so in the req u ired tim e fram e w as extrem ely im portan t to m ain tain ing the m om en tum o f the n egotiation s. A s a sen ior secretariat sta ff m em b er n oted in his interview, ‘no m eetin g ever su cceed ed b e ca u se the logistics w ere great. B u t if the logistics are b ad , the n egotiation s can fail.’

P ro c e d u r a l m a n a g e m e n t A lth ough the p resid in g o fficers retain authority over the n egotiation s as a w hole, in practice, the m ain responsib ility for the day-to-day p ro c e d u ra l m anagem en t o f the n egotiation p ro ce ss lies with the secretariat. W ithin the secretariat, this respo n sib ility falls on the c o o rd in ato rs o f the C O P , S B S T A an d S B I, an d their p ro fessio n al staff, w ork in g with the con feren ce services departm en t on logistical m atters. T h e secretariat su p p o rts the p residin g officers in their exercise o f p rocess-orien ted lead ersh ip , while takin g the initiative to actively devise an d p ro p o se w ays o f organ izin g the n egotiation s to pro m o te agreem ent. T h e action s o f the secretariat in this regard can n ot be d e sc rib e d as le ad e rsh ip , as its m a n d ate fo re c lo se s, o r at least heavily circu m scrib es, overt, in d ep en d en t action. T h e con cept o f organ ization al energy, however, c ap tu re s well the w ay in w hich the secretariat injects strategic thought into the p ro c e d u ra l m an agem en t o f the n egotiation s, b u t h iding b eh in d the veil o f legitim acy an d shu nn ing the exp licit role o f leader. P rio r to each n egotiatin g session , the secretariat team s w ork in g fo r each b o d y - C O P , S B S T A and S B I, also the A G B M d uring the K y oto P rotocol n egotiation s an d the JW G on com plian ce du ring the p o st-K y o to p ro c e ss m ake strategic su gg estio n s to their p resid in g o fficers on how to organ ize the fo rth c o m in g se ssio n . T h ey d o so th ro u gh in fo rm al e-m ail an d te le ­ com m un ication exch an ges, and b riefin g m eetin gs held im m ediately b e fo re the negotiatin g session . C o n tacts are m ore form al an d intensive in the case o f the C O P P resid en t, given the p articu lar im port and com plexity o f C O P session s

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and the typical lack o f experience o f P residents in organizational m atters. Suggestions usually cover the follow ing issues: • • • • • • •

possib le outcom es on each agenda item within the overall goal of furthering the regime the way each item could be dealt with - in a contact group, inform al consultation, plenary discussion , or other arena ideas for delegates who m ight be invited to chair inform al grou ps identification o f potential procedural and substantive pitfalls and o f how to deal with them , e.g. controversy over the provisional agenda scheduling o f plenary and inform al group sessions, and allocation of interpretation time arrangem ents for participation by N G O s correct p ro to co l fo r dealin g with m in isters an d oth er high level participants.

At the negotiating session itself, the secretariat supp lies each presidin g officer with speaking notes to help them chair m eetings in a procedurally sound and effective manner. In addition, at least two profession al officers typically sit alongside presiding officers on the podium during m eetings, ready to provide them with any procedural and substantive su pp ort that they might need. This might include technical advice on the m erits o f different pro p o sals, or how to respond to procedural concerns (e.g. poin ts o f order). W hether and how presidin g officers draw on the su p p o rt offered by the secretariat depen ds upon their confidence and experience in chairing m eetings. Som e presidin g officers develop their own chairing style and just use the secretariat briefing notes as an aide m em oire, while others read them out to the letter. N on-native English speakers, even if they are highly com petent chairs, often find it useful to draw on the speaking notes o f the secretariat in cases requiring a judicious choice of w ords (e.g. when seeking a m andate to prepare a negotiating text). Strong supp ort by the secretariat has been particularly im portant for C O P Presidents. T h e secretariat’s ability to com pensate for, and often p ap er over, the difficulties faced by many C O P P residents in the chairing o f plenary and bureau m eetings has been crucial to the sm ooth running o f C O P sessions. Specific exam ples o f organizational energy supplied by the secretariat in relation to the conduct o f b usiness and decision-m aking, negotiating arenas, negotiating texts, tim e m anagem ent, and arrangem ents for participation o f m inisters and N G O s , are discussed in the relevant chapters o f this book. Being able to provide such organizational energy requires the secretariat to include am ong its staff individuals who p o ssess experien ce in the organization o f global negotiations in general, and experience o f the clim ate change regim e m ore specifically. In this regard, the continuity in the higher echelons o f the secretariat, not just the E xecutive Secretary, but also the C oordin ators o f the SB S T A and C O P (less so the SB I), has been im portant in building up the institutional expertise and m em ory o f precedents that is crucial to institutional learning, and to the ability to think o f creative options that can im prove the m anagem ent o f the process.

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S u b st a n t iv e inpu t Unlike the alm ost legendary role played by the U N E P secretariat in early negotiations under the ozone regim e (see Benedick, 1991), the climate change secretariat has very rarely attem pted to exercise open substantive leadership by brokering agreem ents am ong parties. This reflects the diplom atic, behind the scenes approach o f the first E xecu tive Secretary, which w as itself a response to the desire o f parties for a less interventionist secretariat than that o f the early ozone regim e. H ow ever, the secretariat does have an extrem ely im portant role to play in putting forw ard ideas and draft language that m ight help reach a com prom ise. T h ese are alm ost always put forw ard through discreet advice to the relevant presiding officer, thus m aintaining the veil o f legitimacy. F o r exam ple, at C O P 3, the secretariat gave advice to C hair E strad a on the num bers he should p rop ose in a first draft list o f em ission targets, b ased on the secretariat’s un derstanding o f party positions. A s one interviewee, who had served in a chairing role, characterized it: T heir role is not to get involved in the negotiation. But I do see the secretariat as som eone w h o . . . will always be there to assist the C h a ir ... by providing him som e su g g e stio n s.. .Ju st b ecause you are not involved in it, and you are sitting at a distance, you can also identify areas o f con v erg en ce. . . and you can tip o ff the Chair - look, that’s where you can move.

D ra ftin g text Th is substantive energy provided by the secretariat is particularly im portant in prom oting consensus through the m edium o f drafting text for presiding officers (including Chairs o f inform al groups) to consider presenting as their own. A lm ost every decision or conclusion that is negotiated in the climate change regim e is based on an original draft, or com pilation, suggested by the secretariat. D raft decisions and conclusions are often circulated and discussed internally within the secretariat prior to a negotiating session, and presented to the relevant presiding officer, or even shared with trusted parties. Professional staff w orking for each body mostly include individuals with the drafting skills and technical expertise needed to m anipulate the subtleties o f the English language to find the right diplom atic w ording. T h e secretariat is also able to draw on its institutional m em ory o f preceden ts used in the past to help craft acceptable language. The w ork o f the secretariat in drafting text is an im portant dynam ic, helping to m ove the negotiations forw ard. F o r one interviewee, com m enting on the K yoto Protocol negotiations, ‘the secretariat played an extrem ely s u b sta n tiv e . . . extrem ely forcefu l role in the developm en t o f the text, g e ttin g . . . significant text out t h a t. . . reflected all the views on the tab le’. The drafting w ork o f the secretariat also reflects an efficient division o f labour, freeing the presidin g officers (many o f whom may be neither native English

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speakers nor good drafters) to apply their political skills to the substance of negotiations. A s one interviewee explain ed, again with reference to the Kyoto P rotocol negotiations, the C h air ‘clearly w asn ’t going to be able to com e up with drafts on absolutely everything just o ff the top o f his head [he], w as able to rely on the production o f written text [by the secretariat] which he just w ouldn’t have been able to handle all by h im se lf.

Technical advice A nother area o f substantive su p p ort by the secretariat is in the provision o f technical expertise to help parties take the m ost effective decisions. The secretariat does so in three main ways: • • •

writing official technical and b ack groun d docum ents, mostly on request from the C O P or subsidiary bodies providing technical advice to the presiding officers, either through written briefing notes on specific issues or orally during the negotiation process providing technical advice directly to the parties, usually inform ally in the corridors. It is relatively rare for the secretariat to be form ally invited to give technical advice during an official m eeting, even in an inform al group.

T h e secretariat has, on occasion, been extrem ely im portant in supplying technical analysis on new issues in the negotiations. Such scopin g w ork has then served as a basis for parties to begin negotiations or to develop their own positions. Input from the secretariat in this way can be particularly significant in helping to build up a com m on b ase o f know ledge and understanding am ong parties, in a context o f differing capacities am ong countries. In the follow-up to C O P 3, for exam ple, the secretariat - form ally on request from the subsidiary body C hairs - prepared pap ers analysing the P ro to co l’s three flexibility m echanism s and L U L U C F provisions, and identifying issues for further w ork. T h ese two docum ents were im portant contributions to fram ing discussion s at the first negotiating sessions after C O P 3, when parties were rather at a loss on how to proceed. Interestingly, the pap er on the L U L U C F sector w as better received than that on the m echanism s. This can be largely attributed to the fact that the L U L U C F paper w as m ore scientifically factual and technical in nature, and could draw on existing literature. The flexibility m echanism s paper, however, dealt with an entirely new set o f con cepts, and therefore the analysis o f the secretariat w as inevitably m ore open to challenge and accusations o f bias. T h e period since the adoption o f the K yoto Protocol has seen a rise in the technical aspects o f the secretariat’s w ork. T h e need for m ore com plex em ission inventories and accounting m ethodologies, the inclusion o f the L U L U C F sector, and u n preceden ted technical issu es arising from the flexibility m echanism s, have all created greater dem and for technical expertise on the part o f the secretariat. In this respect, the K yoto Protocol negotiations contrast sharply with the post-K yoto phase. The Kyoto Protocol negotiations w ere m anaged within the secretariat by a sm all team o f political experts with

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little tech n ical e x p e rtise , so that, w hile the p re sid in g o ffice rs received im p ortan t strategic advice, tech nical input w as lim ited. In the p ost-K y o to n egotiation s, however, each specific issu e w as m an age d by a team with ex p e rtise in that field, so that the level o f tech nical in pu t w as m uch greater. L a c k o f analysis o f technical issu es du rin g the K y oto P ro to co l n egotiation s m eant that the secretariat failed to b rin g certain im portan t su b stan tive m atters to the attention o f the C h air in a timely m anner, in particu lar the treatm en t o f the L U L U C F sector, and also the im plication s o f the various p ro p o se d em ission targets. O n e interview ee com m en ted , ‘the sinks issu e is on e w here I feel the secretariat cou ld have h ad a m uch stro n ger role in p in poin tin g to E stra d a - w ho w as, after all, a policy, non-technical perso n - that there w as a need to ad d re ss this issu e in m ore d e tail’. Interestingly, the form er E xecu tiv e Secretary h im self ack n ow led ged that the K y oto P ro to co l n egotiation s had lack ed tech nical su p p o rt: ‘W hat cou ld we have d o n e differen tly? D ata issu es, w e could have realized the im p ortan ce o f this b e fo re the last m inute, and w ork on sinks. I d id n ’t u n d erstan d the n eed for d ata w o rk ... If I h ad to d o the K yoto P ro to c o l now, I w ould allow m ore cap acity fo r tech n ical w o rk .’

Facilitating in fo rm a l, in -d e p t h d is c u s s io n A related m ean s by w hich the secretariat h as pu t su b stan tive energy into the clim ate change regim e h as been the h oldin g o f side events (see C h ap te rs 10 and 14) to facilitate m ore inform al, in -depth discu ssion than is p o ssib le in the o fficial negotiatin g arenas. M o st o f the side events o rgan ized by the secretariat are tech n ical in n ature (e.g. b riefin gs on the rep ortin g gu id elin es, or on the secretariat’s w ork on tech n ology tran sfer), or p rovid e a forum for parties them selves to d iscu ss issu es an d exch an ge experien ces. S id e events w here nonA n nex I parties p resen t their newly su b m itted n ational com m u n ication s, for e xam p le , have now b eco m e a tradition in the clim ate chan ge calendar. In som e cases, the secretariat has arran ged m ore exp lo rato ry side events to h elp ad van ce d iscu ssio n on new o r p articu larly co m p le x issu es in the negotiation s. D u rin g C O P 4, fo r e xam p le, the secretariat ran a sp ecial event on issu es an d o p tio n s fo r the C D M , p rovid in g a valuab le inform al forum for su b stan tive e x p lo rato ry d iscu ssio n on w hat w as then a very new con cept. A sim ilar sp ecial event w as held at C O P 5 on op tion s for the treatm en t o f liability un d er em ission s tradin g. In an oth er e xam p le, at S B S T A 12, the secretariat organ ized a sp ecial event on ed u catio n , training an d pu b lic aw aren ess, in ord er to facilitate an initial discu ssion p rio r to the start o f n egotiation s on the topic. A pion eerin g recent initiative by the secretariat h as been the organization o f h igh-level events, usually in collab oratio n with b u sin e sse s an d other N G O s , to e n cou rage a b ro a d e r d iscu ssio n o f clim ate ch an ge related issu es b eyon d the im m ediate agen da. At C O P 9, fo r e xam p le , the secretariat co o rd in ated high level side events on the tran sp o rt sector, en ab lin g en viron m ents for tech n ology tran sfer, and o p p o rtu n itie s offered by the C D M to p ro v id e clean and affo rd ab le electrical pow er to the d evelopin g w orld. T h ese events brou gh t togeth er sen io r rep resen tatives from b u sin e ss, en viron m en tal N G O s (E N G O s ) and govern m en ts, p rovid in g an op p o rtu n ity for in fo rm al in teraction ‘ou tsid e

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the b o x ’. A nother em erging tradition is the organization by the secretariat of very inform al discussions at the secretariat’s inform ation desk, the climate change ‘K io sk ’. These involve soap box-type presentations m ade by a range of N G O speak ers on b road climate change-related topics. T opics covered at C O P 9, for exam ple, included m itigation /adaptation, global climate science and transport. T h ese side events coordinated by the secretariat have proved useful in en couragin g w ide-ranging discussion and forw ard thinking beyond the constraints o f the form al negotiation process. They have been particularly helpful in encouraging partnerships between different stakeh olders - notably E N G O s and b usin ess and industry N G O s (B IN G O s) - while endorsem ent by the U N F C C C E xecu tive Secretary has helped ensure high-level participation, and therefore a high profile. W hile outside the form al negotiating structure, such events are indicative o f an active and engaged secretariat, and help to inject im portant substantive energy into the regime.

The d a n g e r s o f g o i n g t o o far T h ere are several instances in the history o f the secretariat where its approach to providing substantive input has gone too far, or has otherw ise been perceived as in app rop riate by the parties. T h is lim ited n um ber o f cases is instructive in illustrating the im portance o f the veil o f legitimacy, along with the fragile balance that the secretariat m ust constantly m aintain betw een providing m uch-needed advice and technical input on the one hand, and m aintaining absolute objectivity on the other. O n e case concerns the debate on sinks during the K yoto Protocol negotiations. T h ese negotiations only began tow ards the end o f the process, partly b ecause the secretariat team had failed to appreciate the im port o f the issue until very late on. T h e negotiations on sinks were su pp orted by a senior staff m em ber with som e technical know ledge o f the issue, who ad op ted a m ore interventionist stance, consulting actively with parties behind the scenes. Som e parties were unhappy with this ap proach , although concern w as never publicly aired. O n e interview ee com m ented: [the secretariat] played a m uch m ore activist ro le . . . in the area of sinks. . . . I ’m not sure that w o rk e d . . . it’s very hard for the process to separate technical expertise from political views when they com e from an ostensibly neutral source. A nd I think those often o v e rla p p e d . . . you always have peop le in senior positions, and they have views, and I ’m not persu aded that in the sinks discussion that w as helpful. A nother case occurred at C O P 6 (part II) where, follow ing trium phal ‘ap p ro v al’ o f the Bonn A greem ents by the C O P plenary, the secretariat was given a m andate to edit the text and adjust ‘a n um ber o f legal and technical p o in ts’ , prior to its translation and publication as an official C O P docum ent (see C O P 6 (part II) report, paragraph 39). T h e secretariat, however, w ent too

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far in seekin g to tidy up the text, in trodu cin g ch an ges w hich, while they im proved the sen se and con sisten cy o f the lan g u ag e, w ere deem ed to have political im plication s. T h is excessive zeal w as d u e in large part to the perso n al sense o f com m itm ent o f secretariat sta ff to the p ost-K y o to n egotiation s, on w hich they h ad w orked lon g and h ard for years, an d their desire to p ro d u ce a rigorou s, precise and elegant text. A lth ough the docu m en t w as e m b argo e d , it w as inadvertently released, causin g con sternation am on g delegation s w ho w ere nervous o f the poten tial political rep ercu ssio n s o f the osten sib ly ‘tech n ical’ changes. T h e b lu n d e r w as p atch ed up by w ith draw in g the docu m en t, and reissuin g anoth er version rep ro d u cin g exactly the text ap p ro v e d by the C O P , in clu din g ob v io u s tech nical and editorial m istakes. T h e re w ere also m ore lo n g ­ stan din g rep ercu ssio n s, as the C O P B u reau w as then reluctant to entrust the secretariat with editorial tidying u p o f the M arrak esh A c co rd s at C O P 7. A further e xam p le con cern s a d ocu m en t issu ed at S B I 19 (held in con jun ction with C O P 9) in 2003, p rovid in g ‘an initial assessm en t o f step s taken by n on-A nnex I p arties to redu ce em ission s and enhance rem ovals o f g re e n h o u se g a s e s ’ (se e F C C C / S B I / 2 0 0 3 / I N F . 14). T h is d o c u m e n t w as pre p are d as a ‘n ote by the secretariat’ . T h at is, respo n sib ility fo r its con ten ts lay w ith the se cre tariat, as o p p o se d to a ‘n ote by the C h a ir’ , w here the respo n sib ility w ould rest with the Chair, even if the secretariat h ad actually drafted the text. A lth ough the secretariat h ad b een m an d ated to w ork on this to p ic, the docu m en t that w as presen ted to the S B I w as vehem ently criticized by the G -77 and C h ina, and h ad to b e w ithdraw n b e fo re developin g coun tries w ould agree to ad o p t the S B I agen d a at the open in g o f the session (som e in d u strialized coun tries, however, n otably the U S , ap p lau d e d the docum en t). Sen ior secretariat sta ff w ere b lam ed for not having sufficiently ap p re c iate d the sensitivities involved in d raftin g a d ocu m en t on such a con troversial to p ic, an d the acrim on io u s d eb ate am on g p arties su rrou n d in g the docu m en t colo u red the w hole d e b ate on non -A n nex I national com m u n ication s at that session . It also p ro v id e d an op p ortu n ity for certain laggard develop in g coun tries to dem an d that the se cretariat’s w ork b e m ore closely m on ito red by the parties, su ggestin g the begin n in g o f an overall erosion o f con fid en ce in the secretariat (see above). T h is illustrates how careful the secretariat has to be in its presen tation o f issues, and in d eed how difficult that job can be.

S u m m a r y and concluding remarks T h is ch ap ter h as outlined variou s w ays in which the secretariat h as su p p lied o rg an iza tio n a l en ergy to the n e go tiatio n p r o c e ss, w ith o th er e x a m p le s ap p e arin g th rou gh ou t the ch apters o f this b o o k . A key poin t to n ote is that the U N F C C C secretariat has, to date, been h eld in high regard by the parties, for its com peten ce, efficiency an d objectivity. T h is h as exe rte d an im m ensely p o sitiv e in flu e n ce on the o v erall n e g o tiatio n p r o c e ss. A lth o u g h so m e c h a lle n g e s are n ow b e in g ra ise d to the se c re ta ria t, th ese are largely o p p o rtu n istic an d, given the large reservoir o f trust it enjoys, are unlikely to prevent it from con tin uin g to in put organ ization al energy to the process.

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T h e ab ility o f the se c re ta riat to c o n trib u te m ean in gfu lly to the p r o c e ss d e p e n d s, p e rh a p s p ara d o x ic ally , on its invisibility. T h ro u g h o u t the h istory o f the clim ate ch an ge n e g o tiatio n s, the se c re ta riat h as n ot b een in terv en tion ist; how ever, it h as b een highly active, w o rk in g th ro u gh the p re sid in g o ffice rs b e h in d the sc e n e s w h ere its activity is in visib le to m o st d e le g a te s. O n e in terview ee c a p tu r e d this p o in t eloqu en tly: T h e se cre ta riat is h eld in very h igh esteem b y the p a rtie s, a n d . . . ju stifia b ly so. A n d p a rt o f that is b e c a u se o f their co n siste n t e x e rc ise o f s e lf- r e stra in t. . . you d o n ’t ever get the im p ressio n that the s e c r e t a r ia t . . . is m a n ip u la tin g th e p r o c e ss to p r o d u c e a p a r t ic u la r o u t c o m e . . . th ey p r o b a b ly h av e m o re in flu e n c e th ro u gh th at alm o st su b lim in al assista n ce . T h e e x p e rie n c e o f the clim ate ch a n g e se c re ta riat p o in ts to sev eral m ain attrib u te s th at can c o n trib u te to a s e c re ta ria t’s e ffe ctiv e n e ss, b e y o n d an a d e q u a te fin an cial b a se an d p o litic a l su p p o rt. T h e se are rath er o b v io u s, b u t are w orth restatin g. C o n tin u ity o f (co m p ete n t) se n io r sta ff is vital, e sp e cially given the very c o m p le x p o litic s o f the clim ate ch an ge regim e. C o n tin u ity e n ab le s se n io r s ta ff to d e v e lo p p e rso n a l re la tio n sh ip s w ith d e le g a te s, an d also to b u ild u p the b a s e o f h isto ric al e x p e rie n c e an d k n o w le d g e o f p re c e d e n ts that is n e e d e d to d ev ise w o rk ab le , politically a c c e p ta b le so lu tio n s to o rgan iza tio n a l ch allen g es. A lso vitally im p o rta n t is ach iev in g a g o o d m ix am o n g se c re ta riat s ta ff b etw een tech n ical e x p e rtise an d p o litical acu m en . It is n o t alw ays p o ssib le to fin d th ese tw o q u alitie s in a sin gle in d iv id u al, b u t it is n e c essa ry fo r the se c re ta riat, as a w h ole, to p o s s e s s a b ala n ce b etw een them . B y an d larg e , the clim ate ch an ge se c re ta riat h as su c c e e d e d in d o in g so. T h e s e c re ta ria t’s role h as d e v e lo p e d in p a ra lle l w ith the clim ate ch an ge p r o c e ss itself. A s on e se c re ta riat in terv iew ee p u t it: ‘T h e s e c re ta ria t’s role h as ch a n g e d , co n tin u e s to c h an ge , an d w e still d o n ’t k n o w how this w ill p lay ou t. It is evolvin g as the p r o c e ss h as e v o lv e d .’ In this re sp e c t, a recen t tren d has b e en the g re a te r sp e c ializa tio n o f p a rtic u la r se c re ta riat s ta ff an d d e p a rtm e n ts to a fo c u s on sp e c ific issu e s (e.g. L D C s , tech n o lo gy tran sfe r) as the clim ate c h a n g e p r o c e ss itse lf h as b e c o m e m o re fra g m e n te d . T h e fo c u s o f the se c re ta ria t’s w o rk h as also b e c o m e m o re tech n ical, in k e e p in g w ith the im p le m e n tatio n p h a se o f the p o st-M a rra k e sh p ro c e ss. T h e en try in to fo rc e o f the K y o to P r o to c o l, an d the new im p le m e n tatio n p h ase o f the clim ate ch an ge regim e, m ean s the se cre ta riat fin d s itse lf at a p r o p itio u s p o in t to c o n sid e r its fu tu re. W h eth er the se c re ta riat c o u ld , o r sh o u ld , a ssu m e a m o re p ro a c tiv e ro le in the regim e is a q u e stio n that is b e in g a sk e d b o th w ithin the se c re ta riat itself, an d am o n g so m e p a rtie s. T h e m o st p ro m isin g are a w o u ld b e in term s o f tech n ical an alysis, iden tifyin g issu e s an d p r o p o sin g , p e r h a p s even re co m m en d in g , so lu tio n s in a m o re fo rth righ t m an n e r than b e fo re . P u b lic in fo rm atio n is an oth er, b u t m ore d ifficu lt, area, given the c o n tro v e rsy th at still su rr o u n d s the issu e o f clim ate ch an ge , an d the e x is te n c e o f p o w e r fu l g r o u p s w h o re m a in s c e p tic a l. O n e s e c r e ta r ia t in terview ee ra ise d the q u e stio n as follow s: ‘P re v io u sly th e se c re ta riat w as so

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carcful - staff were reluctant to paraphrase anything at all. But now they arc starting to ask them selves how far they can speak. Can we issue press releases? R espon d to questions on climate change? Can the secretariat b e an authority on the to p ic ? ’ P erhaps the m ost im portant question is the extent to which the secretariat could assum e a leadersh ip role in the event o f dead lock over the future o f the clim ate change p rocess and the absence o f effective leadership on the part of any party. In such a situation, o f m ajor parties unable to agree on a way forw ards over future com m itm ents, the distinction betw een process-oriented and substantive leadership w ould be critical. The secretariat w ould not be able to take the lead in prom oting a particular way forw ards (e.g. negotiation of stronger em issions targets for all parties, or just A nnex I parties). H ow ever, it might be able to help unblock a stalem ate through the presentation, perhaps under a m andate from the Bureau, o f different option s and directions in which the p rocess could m ove (including the option o f doing nothing). The secretariat could thus exert true process-oriented leadership by at least identifying a stalem ate and posin g the issue o f what to do next, and then help focus the m inds o f parties on the option s and their im plications. This, in itself, w ould be a very valuable function. The secretariat w ould be unable, however, to exert genuine substantive leadersh ip by attem pting to steer parties in a particular direction, w ithout forfeiting its greatest asset - trust and confidence in its objectivity.

7

Rules for the Conduct of Business

To the outsider, p ro c e d u re s m ay seem p erip h eral to m atters o f su b stan ce , b ut since in the U N p ro c e d u re s can determ ine su b stan tive o u tcom es, they can an d d o aro u se great p assion s (Renninger, 1989, p235).

Introduction T h is ch ap ter ex p lo re s the rules for the co n d u ct o f b u sin e ss that govern the action s o f all the players in the clim ate ch an ge n egotiation s - both p arties and organ izers (presid in g officers, b u reau and secretariat) - w oven arou n d the form al C on ven tion text and d raft rules o f p ro c e d u re , along with the inform al p ractices and in stitution al settin g o f the regim e. T h e form al rules are largely un original in the clim ate ch an ge regim e, m irrorin g th ose at w ork in the w ider U N system , with few con cession s m ade to the un iqu en ess o f clim ate change. W h at is interesting, how ever, is the way in w hich the players use and interpret the rules, how they im provise arou n d them in innovative w ays, and how they h arn ess them to p ro m o te their go als in the n egotiation s. In this chapter, we begin by outlinin g the key rules and in form al p ractices that sh ap e the con duct o f b u sin e ss, b e fo re exam in in g how these have been ap p lied in practice in the clim ate ch an ge n egotiation s.

K e y rules a n d i n f o r m a l practices T h e key rules and in form al p ractices relating to the con d u ct o f b u sin ess in the clim ate chan ge regim e in clu de the follow ing: •

T h e fou n d ation for the con d u ct o f b u sin e ss is the one-party-one-vote provision, set out in b oth the C on ven tion an d the rules (A rticle 18 and R ule 41), w hich is stan d ard in m o st U N forum s. A lth ough there are few in stan ces in w hich votes can b e taken, by exten sion , this provision tran slates to ‘on e-party-on e-voice’, in other w ord s, ‘equ al say’ for all parties.

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•

•

•

•

•

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D ebates cannot proceed ‘unless at least one third o f the parties... are present’. This required quorum is increased to two-thirds for decision­ making (Rule 31). Rules governing the right to speak establish that delegates may only speak when called upon by the presiding officer, who should call speakers in the order they ask for the floor, based on a list of speakers kept by the secretariat. Although the presiding officer may call speakers to order if their remarks are not relevant, s/he m ust seek the agreement of the parties to limit the overall time, and the num ber o f times, a delegate may speak (Rule 32). Statem ents m ade in an official language o f the U N (Arabic, Chinese, English, French, Russian, Spanish) must be interpreted into the other five (Rule 55). Official docum ents must likewise be drawn up in one language, and translated into the others (Rule 56). Documents should he circulated in advance. Supporting docum ents for a negotiating session must be distributed to parties at least six weeks before the opening o f that session (Rule 11). D uring a session, no proposal is to be discussed unless copies have been circulated to delegations the day before, although the presiding officer may exercise discretion and waive this rule (Rule 36). Special rules apply to the text o f any proposed am endm ent, annex or protocol which, according to both the Convention and the draft rules o f procedure, must be communicated to parties at least six months before its adoption (the ‘six-month rule’) (Articles 15, 16, 17; Rule 37). Standard meeting hours are 10:00-13:00 and 15:00-18:00, while no more than two official meetings, including formal plenary meetings and informal groups, should meet at any one time. These are well-established informal practices, derived from the institutional setting o f the wider U N system.

Functions of rules and i nformal practices These rules' for the conduct of business are aim ed at ordering debates in a predictable and standardized manner, thereby serving as an indispensable anchor to m anage the complexity of global negotiations. W ithout accepted rules to govern the exchanges am ong parties, global negotiations would descend into chaos. The rules thus help to reduce transaction costs in very practical ways, for exam ple, by ensuring familiarity am ong parties as to how a formal subsidiary body or C O P meeting will proceed, its scheduled start and end times, procedures for intervening in debates, expectations regarding interpretation, and so on. Aside from the standardization o f the conduct of business, the rules lean more towards the prom otion o f procedural equity and transparency in the negotiations, than the m axim ization o f efficiency. The most obvious exam ple is the equal say rule, which enshrines formal procedural equity by giving all parties an equal right to contribute to debates and decision-m aking.2 The presiding officer is expected to call on speakers seeking the floor through the

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objective procedure o f first-com e-first-served and, once a speak er has begun to speak, s/h e cannot be interrupted by other parties (who may, for exam ple, be m ore eloquent or better inform ed), as these m ust seek the floor before intervening. Although the form al rule w hereby the presiding officer has to seek the consent o f parties to limit the speaking tim e o f a delegate is very rarely invoked, the associated establish ed inform al practice in the U N system w hereby a party is perm itted to speak without restraint is treated with respect. This is particularly im portant for developing countries, who are thereby provided with a valuable forum to air positions that they feel are often ignored by their m ore pow erful coun terparts in the industrialized w orld. A s H yder com m ents: T h e U N system perm its all sides to express their opin ion s from a position o f sovereign equality and, therefore, to m aintain selfrespect. C ountries acknow ledged to have dom inant econom ic, political and military pow er are forced to take into account the contrasting views o f many other countries, however weak those other countries may be (Hyder, 1994, p203). G iven its w idespread application in the U N system, the equal say rule is largely taken for granted in the climate change regim e. A Chinese delegate, however, illustrated the underlying im portance o f this provision when he affirm ed, during the final stages o f the K yoto Protocol negotiations: ‘We [the G -77 and China] will not be pressured into accepting this proposal. T h is is not Bretton W oods. T h is is the U nited N atio n s’ (CoW , 1997d). T h is statem ent m ade the point that, thanks to the equal say rule o f the clim ate change regim e, developing countries were negotiating on a procedurally equal footing with the industrialized countries, unlike the Bretton W oods institutions o f the W orld B ank and IMF. O th er rules for the con duct o f b usiness seek to give practical effect to form al procedural equity by prom oting a level playing field, that is, trying to com pen sate for differing resource levels and negotiating capacity am ong parties. Interpretation and translation requirem ents, for exam ple, help to counter the m assive disadvantage faced by non-A nglophone delegates and is o f particular use to developing countries and E IT s who rarely have the resources to provide their own language services. A dvance circulation o f docum ents, in turn, seeks to give all delegations, especially sm all ones with lim ited analytical resources, adequate time to consider p roposals b efore being required to discuss or decide upon them. T h e established inform al practice o f no m ore than two m eetings is similarly intended to m axim ize opportunities for sm all delegations to participate in negotiations. A key practical m echanism for seeking to uph old form al p rocedural equity is the funding o f participation at negotiating sessions by eligible developing countries and E IT s (see B o x 7.1 below ). The rules also have an im portant transparency dim ension, with the main rules in this regard being the quorum requirem ents and the public nature of m eetings. In addition, m inimizing parallel negotiations through the no-morethan-two-m eetings practice, broaden ing the accessibility o f proceed ings and

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B o x 7.1 F u n d in g f o r p a r t ic ip a tio n In recognition of the m o re limited resources of m ost de v e lo p in g countries (and EITs), m a ny e n viro n m e n ta l re gim es provide f u n d i n g to su p p o r t their physical attendance at n e g o tia tin g sessions. In the climate ch a n g e regime, a Trust Fund finances the participation of o ne delegate from each eligible d ev elo ping country and EIT per n e g o tia tin g session. If fu n d s are available, su p p o rt is provided for a second delegate from Small Island D e v e lo p in g States (SIDS) and LDCs to attend COP sessions. Eligibility for f u n d i n g is d eterm ined according to G D P per capita. The current threshold in the climate c h a n g e re gim e is that G DP per capita must not have exceeded US$ 6,500 in 2000 according to the Data M a n a g e m e n t Service of U N C T A D , rising to US$ 10,000 for SIDS and parties pro v id in g Bureau m em b e rs (see Yam in and D epledge, 2004). Funds are draw n from volu ntary contributions, mostly from industrialized countries. The volu ntary nature of contributions introduces uncertainty as to the fu n d in g that will be available to cover participation. For the most part, there have been sufficient funds (although only just) to finance the participation of at least one eligible delegate at each session. The small n u m b e r of exceptions, h o w e ve r (including at A G B M 1 du rin g the Kyoto Protocol negotiations and at SBSTA/SBI 18 in the post-Ma rrakesh era) p rom pted strong expressions of concern by the G-77 (see also Yamin and Depledge, 2004). Providing such financial suppo rt for participation is a widely accepted part of the o rgan ization of the n egotiation process, with its practical benefits appearing straightforward and indisputable. F unding for participation also has a symbolic dim ension that is im portant to en han cin g the legitimacy of negotiations. M o s t interviewees approved of the provision of such support O n e respondent suggested that, given the multi-issue nature of climate change, 'su p p o rt for nonA n n e x I parties should enable participation by at least three participants from different disciplines, such as economics, science and law'. Overall, as one interviewee explained, 'there's still a h u ge inequity in the participation of d eveloping c o u n tr ie s ... because developed countries can just have resources to bring in as m any people as they can'. The climate change regime can clearly only g o so far to redressing the broader inequities of the international system. Som e interviewees, however, mostly from A n n e x I parties, expressed misgivings. O n e interviewee co m m ented that providing developing countries with fu n d in g conveyed the impression that the ne gotiations were not of their concern and they had to be paid to attend. Several interviewees also noted that fu n d in g for participation was sometim es associated with rent-seeking activity. O n e interviewee noted that 'the a m o u n t of D S A [daily subsistence allowance] can a m o u n t to six m o n th s salary. There is fierce competition to get to meetings.' The

issue un derly in g the a b o ve

co m m e n ts

is that f u n d i n g

physical

attendance does not necessarily equate with active participation. Increasing the n u m b e r of individuals on a delegation, or en a b ling a country to be represented that w o u ld not otherw ise be, is an im p orta n t first step. However, it does not g u a ra n t e e that those delegatio n s will th en have a deq ua te k n o w le d g e of the issues, or the right skills, or a sufficiently clear m andate, to participate effectively in th e negotiations.

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docum entation through interpretation and translation, and allow ing time for the consideration o f pro p o sals b efore decisions are taken, all also increase opportun ities for scrutiny o f the negotiation process by both parties and non ­ state organizations. In prom oting procedural equity and transparency, however, the procedural rules also tend to raise the transaction costs o f negotiating. Interpretation requirem ents, the standard m eeting schedule and the no-more-than-twom eetings practice, for exam ple, all limit the time available for negotiation and opportunities for convening a m eeting at short notice. Rules concerning translation and advance distribution o f docum ents are also potential curbs to spontaneity. M oreover, form al p rocedures for seeking the floor, coupled with the discipline im posed by sim ultaneous interpretation, place obstacles to the uninhibited exchange o f views, while openness to the public can encourage posturing and inflexibility (see also C h apters 9 and 14).

Procedure as s t r a t eg y T h e rules for the con duct o f b usin ess o f the clim ate change regim e are frequently h arn essed by parties as strategic m ean s to p u rsu e political objectives. T h is is not unusual. A s K aufm ann notes, ‘ “ p ro ce d u re ” and “ su b stan ce ” ... are su p p o sed to be two separate things. In practice, however, procedural devices are used to obtain a substantial result and procedural debates often turn out to be debates on su b stan ce’ (K aufm ann, 1989, p 4 0 -4 1 ). It is not uncom m on in the clim ate change negotiations for som e parties, when faced with a p roposal to which they object, to invoke procedural argum ents for why it cannot be discussed (e.g. non-availability o f a text in all languages, insufficient time to con sider it). It is similarly not uncom m on for som e parties to seek to delay the negotiation p rocess m ore generally by insisting on procedural adherence (e.g. on interpretation or translation, or strict application o f the no-m ore-than-tw o-m eetings rule) (see Yamin and D ep ledge, 2004). O ne interviewee claim ed: ‘If the Saudi delegate puts his request for translation in perfect E nglish it’s very clear that it’s a trick and nothing e lse ’ . T h e line betw een legitim ate and illegitim ate pro ced u ral challenge is, o f course, a fine one. M ost procedural concerns are m otivated by genuine concern over loss o f procedural equity and transparency. N evertheless, it is also undoubtedly the case that obstructionist parties som etim es insist on the rigid interpretation o f procedural rules as a m eans o f delaying the n egotiation process, and it is no coincidence that certain O P E C countries tend to be the greatest sticklers for procedural adherence. An interesting exam ple arose during the K yoto P rotocol negotiations at A G B M 3 in early 1996, when Sau di A rabia put forw ard an interpretation of the six-m onth rule w hereby there could be no further negotiation on the negotiating text o f the p rotocol betw een its circulation and its adoption. In effect, this w ould have required the negotiations to be com pleted by 1 Ju n e 1997, an inconceivable p rospect. This challenge w as eventually h eaded o ff by a legal opinion from the U N O ffice o f Legal A ffairs, which confirm ed that

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negotiations on the p rotocol could continue up to C O P 3 (F C C C , 1996; see also C h apter 5). A m ore com m only used exam ple o f procedural opportunism occurred at S B S T A /S B I 13 in 2000, when Saudi A rabia, w hose negotiators m ostly possess excellent English language skills, exerted sufficient influence in the G -77 to dem and, on b eh alf o f the group, translation o f all docum ents, an obvious physical im possibility. A ccordin g to G ru b b and Yamin, ‘established U N p rocedures are slow and painful, and certainly in the history o f the climate change negotiations they have been deliberately used by laggard countries to prevent effective international policy-m aking on clim ate issu es’ (G ru b b and Yam in, 2001, p270). An interviewee similarly com plained that, ‘We are treated as fools here by delaying tactics’.

P utt ing the rules into practice G iven the higher transaction costs that they im pose, the structure provided by the rules for the conduct o f business is generally a rather loose one. The rules are used to structure and order the negotiation p rocess, as well as to enhance procedural equity and transparency, yet at the sam e tim e they are applied pragm atically, regularly bypassed and, at tim es, relaxed, when the transaction costs that they im pose threaten to im pede the negotiations. It is extrem ely im portant, however, for the organizers o f the negotiation process - the presiding officers, bureau and secretariat - to m ake sure that a balance is secured. E nough o f the key rules for the conduct o f busin ess m ust be upheld enough o f the time to m aintain an acceptable level o f procedural equity and transparency, if the legitim acy o f the negotiations is not to suffer.

P ragm a tic application A go od exam ple o f the pragm atic application o f the rules for the con duct of busin ess is that o f the quorum . T h e presidin g officers and secretariat typically verify that representatives o f the main negotiating coalitions are present in the plenary room b efore starting a m eeting, but rarely actually check the num ber o f countries. Such a pragm atic quorum is in fact m ore im portant than the form al num erical threshold, which could be reached sim ply through the presence o f the G -77, w ithout any A nnex I party. Transparency is thus m aintained by respecting the spirit o f the rules, while avoiding an unnecessary rise in transaction costs by adhering to their letter. A nother exam ple is the rule requiring presidin g officers to call on speakers ‘in the order in which they signify their desire to sp e ak ’, with the secretariat m aintaining ‘a list o f sp e ak e rs’ (Rule 32.1). In practice, seating arrangem ents m ake it difficult for parties to keep track o f who is asking to speak, so that the presiding officer can usually use h is/her discretion to decide on the exact sequence in which s/h e calls upon parties (Yamin and D ep ledge, 2004). T h is can be a very im portant tool in the negotiations. O ne presidin g officer, for exam ple, adm itted in his interview that he took strategic decisions on the order in which to call upon speakers. D epending on the ‘m ood o f the ro om ’, the statem ents of

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obstructionist parties, for exam ple, might be taken later on, after support from others had been m ade clear, or alternatively they might be taken first, to be drowned out by subsequent supportive statements. Other presiding officers have also used this tactic. Chapter 8, for exam ple, refers to a debate on L U L U C F where only a handful of parties were opposed to convening an inter-sessional w orkshop on this issue. Chair Dovland first took a statement from the main opponent, Saudi Arabia, and then, even though Saudi Arabia soon asked for the floor a second time, instead gave the floor to the majority o f parties expressing support for the w orkshop so that, when he finally did call on Saudi Arabia a second time, that party had little choice but to acquiesce.

Byp assing The m ost common exam ple of the bypassing o f rules for the conduct of business is the convening o f inform al arenas where the rules (e.g. relating to interpretation, or meeting times) are either not applied, or applied only in part. It is indeed com m onplace in the multilateral arena to refer negotiations to informal groups, which, as Ikle puts it, ‘sometimes help to avoid the more irrational and inefficient aspects of the verbal exchange at the conference table’ (Ikle, 1964, p i 18). The use o f informal arenas has intensified over time (although there is no clear trend in the actual num ber o f arenas convened - see Chapter 9). This is due partly to the greater num ber of items on the subsidiary body and C O P agendas, but also to the alm ost automatic assum ption that an issue, if it is to be considered seriously, must be addressed in an informal group or informal consultation. This has led to a situation whereby plenary discussion o f agenda items has becom e increasingly perfunctory, as parties - and indeed presiding officers and the secretariat - take it for granted that the real debate will unfold informally. A ccording to one interviewee, ‘the use o f both subsidiary body and C O P plenaries are much m ore ritualistic, very little action happens there at all’. The result is that the vast majority o f actual negotiations take place in informal arenas where there is no obligation to adhere to the full rules for the conduct o f business. While more efficient, the multiplication o f informal arenas does make it more difficult for small delegations to participate effectively in the negotiations. Issues relating to informal arenas are discussed in more detail in Chapter 9. Another common case of bypassing the rules is through the issuance of informal documents, which do not need to comply with translation and advance circulation requirements (sec also Chapter 11). These include information-only docum ents (IN F s), conference room papers (CR Ps) and m iscellaneous docum ents (M ISC s), which, as informal docum entation, may be issued in English only, and at short notice (see Box 11.1 on docum ent types). The extreme m anifestation o f the bypassing o f docum entation rules is the use of informal and unofficial ‘non-papers’, that is, text simply reproduced on blank paper, without an official U N F C C C symbol or logo. The best exam ple o f the bypassing of docum entation rules concerns draft decisions and conclusions. When these are presented for adoption to a plenary meeting, they should be issued in a formal docum ent in all U N languages. However, because decisions are usually agreed

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at the last m inute, there is often insufficient time to translate the text. Therefore, to bypass the translation requirem ent, the text is issued as a CRP, in English only. T h e n um ber o f decisions and con clusion s ad op ted as C R P s has risen dram atically since Kyoto, reflecting the greater am ount o f b usiness and pressure on translation services. P arties have been rem arkably acquiescent to this trend, generally recognizing and accepting the logistical im possibility o f translating text agreed in the very last hours o f a negotiating session.

R elaxation As well as being b yp assed through inform al grou ps and inform al docum ents, the rules are som etim es explicitly relaxed during form al m eetings in the face o f practical constraints. O n occasion, for exam ple, form al plenary m eetings have extended beyond their scheduled m eeting tim e or have been held w ithout interpretation. It should be noted that available interpretation tim e is lim ited during negotiation session s, due to both budgetary constraints and strict regu latio n s go vern in g the w ork in g h ou rs o f U N in terp reters. In terpreters have som etim es continued to w ork beyond their allotted hours, but there is no com pulsion on them to do so, and the extent to which they are physically able to carry on is lim ited. Similarly, the no-more-than-twom eetin gs p ractice has occasion ally also been relaxed d u rin g intensive bargaining and deal-m aking in the finales o f m ajor negotiation rounds. R elaxation o f the rules is, however, often contested, notably by the G -77 and China given that developing countries are m ost in need o f their procedural equity and transparency safeguards. The w illingness o f parties to agree to the relaxation o f the rules varies, and is largely a function o f expediency and political will. This can be illustrated by different exam ples from the K yoto Protocol negotiations. At A G B M 2 in 1995, for exam ple, Chair E strad a w as forced to close a relatively insignificant m eeting although he had not com pleted the list o f speakers as parties refused to carry on for 15 m inutes w ithout interpretation (A G B M 2, 1995); this may have been because parties did not want to set a precedent so early in the process. A s negotiations advanced and the need for efficiency increased, the G -77 and China show ed considerable flexibility in agreeing to b yp ass and relax the rules. T h e C h air o f the G -77, for exam ple, acceded to E stra d a ’s prop osal during C O P 3 to ‘have a six hour m eeting this evening w ithout interpretation’, stating that ‘we, in the G -77 and China, are willing to stay on in order to com plete the w ork’ (CoW , 1997b). A related situation unfolded with regard to the no-m ore-than-tw o-m eetings practice. T h e G -77 and China kept a close eye on the organization o f the negotiations at A G B M 6 and 7 in 1997 when inform al grou p s were first convened to ensure that only two m eetings were held in parallel. D uring an A G B M 7 plenary m eeting, for exam ple, Iran noticed that a p rop osed scheduling change w ould mean that three m eetings w ould take place in parallel, and im m ediately intervened to object (A G B M 7, 1997b). H ow ever, at C O P 3, the G -77 and China implicitly acquiesced to the convening o f m ultiple parallel inform al grou p s by not raising objections to the schedule.

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The most striking exam ple o f the relaxation o f the rules concerns the adoption o f the Kyoto Protocol itself, which took place in procedurally irregular circum stances. D ue to the overrunning o f C O P 3 by almost a day, the final hours of negotiations in the Com m ittee of the Whole (CoW, see Chapter 9) and the entire final C O P plenary meeting, including the formal adoption o f the Kyoto Protocol and other decisions, took place in English only. Moreover, there was probably no quorum to take a decision, as many developing country delegates had also left to catch U N -funded flights home. One interviewee recalled, ‘I rem em ber being alone in that room, I don ’t know how many delegations were there, but there couldn’t have been more than a dozen.’ However, these irregularities generated only one objection, from the Russian delegate over the lack of interpretation, who nevertheless did not insist on the suspension o f the negotiations (CoW, 1997f). It was probably critical, however, that the final text of the Kyoto Protocol was available in all six languages for adoption, in accordance with the procedural rules. W hether delegates would have conceded to adopting the written text of the Protocol in English only, in addition to all the other procedural irregularities, is im possible to tell.

The interplay betw een procedure and political will The Protocol negotiations thus show how political will can override procedure. When faced with practical imperatives, particularly time pressure, parties did consent - developing countries m ore reluctantly than others - to relaxing procedures even within formal meetings. When it came to the crunch, parties were prepared to sacrifice som e procedural equity and transparency for the sake o f efficiency and, ultimately, reaching agreement. Since Kyoto, however, the willingness o f parties to accept the pragm atic application, bypassing or relaxation o f rules for the conduct of business appears to have waned. Developing countries in particular have becom e more assertive in insisting on the no-more-than-two-meetings practice and, with the Russian Federation, on calling for the suspension of formal meetings when interpretation is no longer available. Interpretation was even requested, and in the end provided, for some meetings of the larger contact groups, notably on the flexibility m echanism s, during the post-Kyoto negotiations. At SB S T A /SB I 13 in 2000, the last session in the post-Kyoto negotiations before the scheduled finale o f C O P 6, the Nigerian G-77 Chair repeatedly raised concerns in plenary at the lack of interpretation, paucity of translated docum ents, and late circulation o f docum en ts. In his openin g statem ent, he also called (unsuccessfully) for a one hour break between each meeting and an end to the w orking day at 9pm . The C O P 6 finale, in turn, contrasted with C O P 3 in terms o f the procedural flexibility shown by parties. The Chair of the G-77 repeatedly objected to proposals by the C O P President for convening late night, parallel, or English-only informal meetings, greatly reducing the efficiency o f the negotiations. The Russian Federation’s strong insistence on provision o f interpretation (see C h apter 13) also contrasted with that delegation’s (albeit reluctant) acquiescence o f English-only negotiations in the last hours of C O P 3.

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The situation changed again at C O P 6 (part II), at least as far as the G-77 were concerned, with the Iranian G-77 Chair able to harness m ore flexibility on the part of his G roup and voicing fewer procedural objections to Englishonly, late night, or parallel negotiations. This was a case, once again, where political will - in this case determination to avoid another failure like that of C O P 6 and to uphold multilateralism - was able to override procedural concerns. Echoing the sentiment implicit at C O P 3, however, the organizers still considered that it would be unacceptable formally to adopt the Bonn Agreements - finalized in marathon, overnight negotiations - in English-only as soon as they were agreed. Instead, using a procedural sleight o f hand, the English version was immediately ‘approved’ by the C O P plenary, ‘on the understanding that form al adoption w ould follow at the next plenary meeting, once the text had been issued in an official conference document’, that is, in all U N languages (C O P 6 (part II) report, paragraph 40, em phasis added). The decision was duly adopted two days later in all languages.’ In another illustration of the interplay between procedural adherence and political will, however, in the wake o f approval o f the Bonn Agreements, the Russian Federation in sisted on closing a crucial C O P plenary m eeting when interpretation time ran out before important decisions on the organization of work could be agreed, despite this effectively putting a stop on negotiations for 24 hours. It is difficult to dism iss the conclusion that foot-dragging played at least som e part in the procedural inflexibility experienced at C O P 6 (part I). The fact that Nigeria, an O P E C country/ held the post o f G-77 Chair no doubt contributed to the G -77’s reticence at allowing procedural relaxation or innovation at that session. However, growing frustration am ong developing countries (and indeed the Russian Federation) at the erosion o f procedural equity and transparency safeguards also exerted an important influence. Discontent at the exclusive friends of the Chair negotiations during C O P 4 (see Chapter 9), along with the multiplication of English-only informal groups throughout the post-Kyoto negotiations, and indeed the procedural breaches in Kyoto, led many developing countries to genuinely fear that rules for the conduct of business would not be sufficiently respected for the finale o f the post-Kyoto negotiations at C O P 6. It is important for the organizers of the negotiation process to be adept at distinguishing legitimate procedural concerns from illegitimate filibustering. This can be very difficult. At C O P 6, for exam ple, C O P President Pronk arguably gave too much credence to procedural objections coming from the G77 Chair, and the consequent delay in taking organizational decisions led to dam aging uncertainty. President Pronk undoubtedly feared, however, that disregarding G-77 concerns might antagonize the G roup. An important factor in countering procedural opportunism is for the organizers of the negotiation process to ensure that the most visible and highly regarded procedural rules (e.g. provision of interpretation, making docum ents available as prom ptly as possible, scheduling no more than two meetings at any one time) are adhered to as much as possible. Beyond such caution, the presiding officer needs to exercise firmness in responding to clear cases of

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procedural obstruction, and careful judgm ent in distinguishing when a concern is legitimately and genuinely held, and when it constitutes a delaying tactic. The ability to be firm in a diplom atic and politically acceptable way, perhaps citing precedents or even using humour, is one of the hallmarks o f an effective Chair (see Chapter 4).

S u m m a r y and concludi ng remarks This chapter has shown how the rules and informal practices for the conduct o f b usin ess are focused chiefly on prom otin g p roced u ral equity and transparency and, because of this, they can also imply high transaction costs. In order to increase the efficiency o f the climate change negotiations, the rules are therefore applied pragmatically, and often also bypassed, through the use of informal mechanisms to which the rules do not apply (notably informal negotiating groups and informal texts). Especially in the latter stages of important negotiating rounds, it can also be tem pting for the organizers of the negotiation process to seek to relax som e o f the rules in the face o f time pressure. Developing countries typically place much more im portance on upholding the rules for the conduct o f business than industrialized countries, especially as regards interpretation and scheduling of meetings. This is due to their generally greater need for the procedural equity and transparency safeguarded by the rules. It is important, however, not to go too far, so that the negotiating process is rendered illegitimate. The extent to which parties are prepared to accept the relaxation o f rules for the conduct of business depends very much on political will. This, in turn, depends partly on the extent to which the rules have been broadly respected throughout the negotiating round as a whole. Another dimension to the rules for the conduct o f business is the way in which these can be used for obstructionist purposes, thereby reducing the efficiency of the negotiations. In this regard, it is important that the organizers are able to address such procedural opportunism through firmness and by minimizing opportunities for procedural challenges.

Decision-making Rules

The overw helm ing majority o f the parties is willing to ad op t an in tern ation al in stru m e n t... T h at m ajority sh o u ld not be frustrated (E strada, 1997, report to C O P 3).

I nt roduct ion D ecision -m ak in g rules are central to the organ ization o f n egotiation s in in tergovern m en tal regim es, as it is through these rules that the regim e m ust sustain the delicate b alan ce betw een state sovereignty and glo b al interests upon which it is b ase d . A s d iscu ssed in C h ap ter 3, however, the clim ate change regim e does not have an agreed rule fo r taking m ost sub stan tive d ecision s, due to the inability o f the p arties to agree on voting rules in the rules o f proced u re. A lth ough the rem aining rules o f p ro ced u re are routinely ap plied at each session , rule 42 on voting rem ains in contention and is not ap plied. In its ab sen ce, with the exception o f d ecision s for which voting rules are set out in the Convention (adoption o f am en dm ents, ann exes) all decision s are taken by con sen su s (Yamin and D ep le d ge , 2004). In this chapter, we exp lore the im plication s o f the ab sen ce o f a voting rule and the resulting con sensu s im perative in the clim ate change regim e.

C o n s e n s u s a nd its cont es ted m e a n i n g As W erksm an notes, ‘w hat voting rules should operate in the vacuum left by Rule 42 has been the subject o f intense debate and speculation ’ . W hile ‘a technical solution to this deadlock might lie in the rules o f custom ary international law, m ost delegates seem ed to con cede that, in the absence o f a specified majority voting rule, decisions w ould have to be taken by consensus’ (W erksm an, 1999, p6, em phasis ad ded). C on sen sus is indeed widely used as a decision-m aking rule in the U N system , particularly in m ultilateral treaties, given that ‘states generally eschew the open confrontation that can com e with voting’ (W erksm an, 1999, p7), even when m ajority rules are in place. D esp ite its pervasiveness, consensus, w hose literal m eaning equates with ‘com m on feeling’ or ‘concurrence o f feelings’ (Scherm ers and Blokker, 1995,

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p772), is ‘a rather elusive decision-m aking p ro c e ss’ (Evensen, 1989, p78), w hose operational m eaning is not defined in the Convention (Yamin and D ep led ge, 2004). M ost theorists and practitioners agree, however, that consensus is distinct from unanimity, and is generally defined negatively to m ean that there are no stated or fo rm a l objections to a decision (e.g. Yefimov, 1989; Scherm ers and Blokker, 1995; W erksm an, 1999; Yamin and D ep ledge, 2004). This ‘enables parties to acquiesce in the outcom e o f a decision w ithout having to express open agreem ent or disagreem en t’ (Szell, 1996, p 2 11), in other w ords, a party could reluctantly consent to a decision, but then ask for its concerns to be form ally noted (e.g. in the report on the session) after the decision is ad opted . T h e converse o f this, however, is that a sm all group, or arguably even a single party, could form ally state that there w as no consensus on a particular decision, thus potentially preventing the decision from being ad op ted (Yamin and D ep ledge, 2004). The qualified nature o f the latter point dem on strates the am biguity and fluidity o f con sen sus; can the form al objection o f a single party block a decision? If not, how many objections does it take for there to be no consensus? O ne interviewee queried, ‘if you are adoptin g som ething by consensus, what does that m ean? D oes that mean there are no ob jection s? D oes it mean only one ob jects? If one country pipes up, does it m ean you have no con sensus? It’s not 100 per cent clear.’ In practice, it is extrem ely rare for a single party to b lock a decision , as m ost parties are very reluctant to prevent their allies - on w hose su p p o rt they may dep en d in other m ultilateral aren as - from takin g action. If a party does not have the su p p o rt o f its negotiatin g coalition, it is unlikely to isolate itself by b lock in g a decision. A go o d illustration o f this o ccu rred at S B S T A 16, w here Sau d i A rab ia fought strongly to delete a m and ate to hold an intersession al w o rk sh o p on L U L U C E H ow ever, its d em an d s w ere openly o p p o se d by the G -77 sp o k e sp e rso n and m ore than 20 p arties, including other developin g countries. T h e C h air w as thus able to declare con sen sus on h oldin g the inter-sessional m eeting, w ithout form al ob jection by Saudi A rabia. At a m ore general level, the fact that the U S, having rep u d iated the K yoto P rotocol, nevertheless stated that it ‘w ould not sto p others from m oving ah e ad ” illustrates the disinclin ation o f parties to reap international o p p ro b riu m by fru stra tin g w id e sp re a d c o n se n su s, even if they are procedurally able, and substantively eager, to do so. T h e am b igu ity o f c o n se n su s e n d o w s the p re sid in g o ffic e r with ‘con sid erab le discretion to assess w hether a party is registering a form al ob jection , or som e lesser level o f disconten t that will allow a decision to go fo rw ard ’ (W erksm an, 1999, p7). Ultim ately, however, the p residin g officer can only declare con sen sus with the acq uiescen ce o f the p arties, and the m eaning o f con sensus can thus b ecam e an o b ject o f struggle. T h is was certainly the case during the K yoto P rotocol n egotiation s, as C h air E strad a, ob stru ction ist p arties and others all sou gh t to sh ap e the m eaning o f con sen su s for their own strategic p u rp o se s.2 H ow ever defin ed , co n sen su s is typically regarded as the d e cisio n ­ m aking rule o f choice in m ultilateral negotiation s (Yamin and D ep led ge, 20 0 4 ), and particularly so in glo bal environm ental n egotiation s, w here the

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c o m m itted p a rtic ip a tio n o f all state s is view ed as critical. T h is w as reflected in m any in terview re sp o n se s. O n e in terview ee re m a rk e d : ‘T h is is the p ra c tic e w ithin the e n viron m en tal treaties, you d o everything by c o n se n su s, even w hen you h ave ru les o f p ro c e d u re . I really d o n ’t kn ow w hat w ou ld h ap p e n if we pu t anythin g to the v o t e . .. p e o p le try not to d o th a t.’ A n u m b er o f interview ees em ph asized the p oten tial p ro b lem s associated with a votin g rule in the con text o f a glo b al issu e requirin g the en gagem en t o f all countries. F o r one interview ee, ‘once you m ake the leap to a glo b al regim e, I d o n ’t think you can then e x clu d e key interests through the votin g rules. You have to m ake the regim e in clu sive.’ Several interview ees e x p re sse d concern that votin g w ould im p act on the legitim acy o f the agreem en t an d alienate those parties that lost the vote, m ean in g that they w ould b e less likely to ratify and im plem en t it. Such view s are also sh ared in the literature. Szell, fo r e xam p le , also a form er sen io r d elegate in the clim ate chan ge regim e, n otes that ‘p arties are m ore likely to resp ect a decision if they su b scrib e to its term s than if they are driven reluctantly into o b servan ce by m ean s o f a m ajority d e c isio n ’ (Szell, 1996, p 213). It is interesting to note that som e regim es, m ostly old er on es, d o o p erate on the b asis o f regular votin g, n otably the 1973 C on ven tion on In tern ational T rad e in E n d an g e re d Species. In the case o f m ore recent regim es, however, in clu din g the ozon e regim e and the three Rio C on ven tion s, treaty b o d ie s have preferred to retain the su p p o rt o f all their parties w hen taking d ecision s, in ord er to k eep all involved coun tries on b o ard rath er than create divisions and resen tm en ts that w ould m itigate again st a coop erativ e, in ternational respo n se. N otw ith stan d in g the desirability o f con sen su s decision -m akin g, p rovisio n s fo r m ajority votin g ‘if all efforts at con sen su s have been e x h au sted an d no agreem ent re ach e d ’ are com m on in m ultilateral environm ental agreem en ts. In d eed , such a clau se is part o f d ecision -m akin g rules for the ad o p tio n o f am en dm en ts and an n exes to the C on ven tion . P lacin g em p h asis on con sensu s w hile p rovid in g for last resort m ajority voting in this w ay aim s to b alan ce out the con cern s o f m ajorities and m inorities. A s Szell (1996, p 2 1 2 ) explain s: Such form u lation s, by specifying a m ajority vote as a last resort for q u estio n s o f su b stan ce help those p arties con cern ed ab ou t the p oten tial o f co n sen su s to en ab le im portan t p ro g re ss to be b lo ck e d by just on e dissen tin g party, w hilst the requirem en t to m ake every effort to reach co n sen su s gives com fort to those p arties w hich d read a decision b ein g taken again st their deeply held views. L a st resort m ajority votin g, however, is pre clu d e d fo r alm ost all d ecision s u n d er the regim e, so that d ecision s can only b e taken by con sen su s. A lth ough the ab sen ce o f last resort m ajority voting an d the con sequ en t con sen su s im perative is now w idely taken for gran ted in the clim ate chan ge regim e, it h as nevertheless h ad an im portan t im pact on n egotiation s th rou gh ou t the regim e’s history.

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The i mp ac t o f the c o n s e n s u s i mpe rat i ve T h e absence o f a voting rule and the consequent consensus im perative were m ost keenly felt during the K yoto Protocol negotiations. F o r one interviewee, ‘it hung over the p rocess like a c lo u d ...t h e dynam ics o f the A G B M w ould have been different with a voting rule in place’ .

Greater procedural e q u it y ? At one level, the im pact o f this consensus im perative could be said to have generated greater procedural equity in the negotiations, as it meant that even the views o f small minorities had to be accom m odated in a consensus, rather than simply being outvoted. As one interviewee argued, ‘if the case deserves attention and they [minorities] could be steam rollered, you w ould want them to have the opportunity to reach a decision by con sensus’. The resulting content o f the Protocol therefore undoubtedly accom m odated a greater range o f positions than w ould otherwise have been the case with a voting rule in place. O ne interviewee sum m arized this effect as follows: You have to buy them [sm all m inorities] i n . . . politically or econom ically you have to buy them in, which is a different dynam ic, and that’s the dynam ic that’s been follow ed in the climate change regim e. N egotiated buy-in . . . that’s the logic o f no m ajority voting rules. T h e best exam ple o f such negotiated buy-in is that o f the O P E C countries and their specific p roposal, later su pp orted by the G -77 and China, for a fund to com pen sate them for potential econom ic losses due to clim ate change m itigation action. T h is prop osal w as strongly and universally o p p o se d by Annex I parties. H ow ever, b ecause o f the im perative need for consensus, the A nnex I parties did engage in negotiations on it, eventually agreeing a text that all could live with. As E strad a stated in his interview, ‘we got the agreem ent by consensus, sim ply by offering the oil p roducers som e paragraph in article 2 and another paragraph in article 3 [on possib le adverse effects o f m itigation action] . . . ’ . W ithout the im plicit threat that O P E C w ould block a consensus, it is unlikely that the Annex I parties w ould have agreed to the inclusion of these clauses in the Protocol, or even talked about the issue. M oreover, there is evidence that side paym ents w ere also m ade to O P E C countries outside o f the form al negotiation process. O berth iir and O tt, for exam ple, reveal that Ja p a n prom ised to review its oil im ports, establish stronger bilateral contacts and take steps to b o o st Ja p a n ese investm ent in Saudi A rabia in return for that country’s cooperation in K yoto (O berth iir and O tt, 1999). A nother exam ple is that o f A ustralia, w hose dem and for a significant em issions growth target in the K yoto P rotocol w as alm ost unique am ong Annex I parties and not viewed with sympathy.5 However, Australia succeeded in achieving a + 8 per cent target, in the face o f rum ours that it w as otherwise prepared to walk away from the negotiations (although not necessarily to block

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c on sen su s). M oreover, on the last night o f n egotiation s, A u stralia secu red a clause in the P ro to co l relating to the treatm ent o f carb o n sinks that ap plies alm o st exclusively to that coun try to con sid erab ly lighten the effort req u ired to m eet its target. T h ere is little d o u b t that other parties w ho m ight have ob jected did not query this clau se for fear o f u p settin g a con sensu s. O n this issu e, one interview ee stated, ‘I d o n ’t think it [A u stralia] w ould have ever ask ed [for this clause] if there h ad b een a tw o third s m ajority v ote’ . E x am p le s o f such n egotiated buy-ins are legion in the clim ate chan ge re g im e, an d h ave c o n tin u e d in the p o st-K y o to p e r io d . F o r e x am p le , co n sid erab le efforts are rep eatedly exerted to secu re the coop eratio n o f O P E C countries. It is not u n com m on for O P E C coun tries, n otably Sau d i A rab ia, to threaten to b lo ck n egotiation s on other ag e n d a item s, if issu es o f concern to them d o not ad van ce sufficiently rapidly. It is u n d o u b te d ly the case that, w ith out the threat o f b lo ck age on the p art o f a h an d fu l o f O P E C coun tries, the issu e o f ad verse im pacts o f m itigation m easu res w ould have fallen o ff the clim ate ch an ge agen d a a lon g tim e ago. In a sim ilar case to that o f A u stralia m en tion ed ab ove, the need for con sen su s m eant that the R ussian F ed eration w as also ab le to exert sufficien t pow er to secu re sp ecial con sideration for itself in the M arrak esh A cco rd s, altering a decision agreed at C O P 6 (part II) to grant it in creased credits from forest m anagem en t activities (see d ecision s 11/C P.7 an d 12/C P .7). In an only slightly less blatan t exercise o f political m u scle, C an a d a and Ja p a n w ere sim ilarly ab le to secu re very large am oun ts o f credits fo r them selves for the sam e forest m anagem en t activities at C O P 6 (part II). T h ese sp ecial allow ances w ere resen ted by m any other parties, inclu ding d evelop in g coun tries, an d, h ad they gone to a vote, m ay not have b een agreed. A s on e interview ee p u t it, ‘the n eed to give sm all gifts to everybody w ould have been red u ced with a votin g ru le’. T h e foregoin g exam p les su gg e st that greater p ro ce d u ral equity, achieved by the co n sen su s im perative, gives a d isp ro p o rtio n ate ad van tage to the m ore la g g a rd p a rtie s, th u s sh iftin g the re su ltin g ag re e m e n t to w a rd s an environm entally w eaker su b stan tive content, w hat m ight be called the ‘law o f the least a m b itio u s’ (W ettestad, 1999, p25). A co n sen su s decision -m akin g rule d o e s in deed tend to lead to ‘least com m on d en om in ator so lu tio n s’ (W erksm an, 1996, p 6 0 , see also Yam in and D ep le d g e , 2 0 0 4 ), as it is parties w ho ad vocate the w eakest su b stan tive effectiven ess that are m ost p re p are d to b reak the con sensu s. T h e m inority view o f A O S IS , fo r e xam p le , ad vocatin g a m uch stron ger target, did not enjoy sim ilar leverage to that o f O P E C or A u stralia d urin g the K yoto P ro to co l negotiation s.

R a is in g t r a n s a c t io n co sts a n d p ro c e d u ra l b lo c k a g e O n a day-to-day b a sis, the c o n se n su s im p erativ e raises the transaction costs o f the n ego tiatio n p ro c e ss, as g re ater e ffo rt is req u ired to secu re even m in or d e c isio n s. O n e interview ee co m m e n ted , ‘it’s very fru stratin g to e x p e rie n c e the lack o f votin g ru les and not b ein g ab le to get firm d e c isio n s b e fo re you really h ave t o ’ , w h ile a n o th e r re m a rk e d , ‘ o u r in ab ility to ta k e any v o t e s . . . m ak es life d ifficu lt, b e c a u s e . . . you have to d e lib e rate so in tensely

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over m inutiae b e cau se o f the w ishes o f a sm all g r o u p ’ . M oreover, a con sensus requirem ent can allow a handful o f parties to hold the vast m ajority hostage. T here was certainly the fear in the K yoto Protocol negotiations that, at the m om ent o f adoption o f the Protocol, a small group of obstructionist parties, or even an individual delegation, w ould declare that there was no consensus and prevent the decision being taken. An interviewee described the threat o f procedural blockage in the follow ing terms: It definitely w as a big issue in the c o rr id o rs. . . W hat are we possibly going to do when Sau di A rabia and Kuw ait raise their flags. At the end o f the day it d id n ’t m a tte r ... But the stakes had never been as high as they were in K yoto, so there w as legitim ate reason to suspect that, well, this really will be w here O P E C draw s the line in the sand, and says ‘w e’re willing to put up with the anger o f the international com m unity that it w as clearly us that b locked the decision, because the decision has such a potential im pact on our in terests’. B ut at the end o f the day, they d id n ’t. T h e threat o f procedural blockage to the overall package o f negotiating issues was much less o f a concern during the post-K yoto negotiations. The fact that the O P E C countries had not blocked the adoption o f the K yoto Protocol had im plicitly signalled that this m ost obstruction ist group o f parties w ould continue to pursue their strategies within the regim e, rather than through its overall blockage. T h e adoption o f clauses in the K yoto Protocol on the adverse effects o f m itigation m easures provided a vehicle for them to do so very effectively. O th er parties with very strong positions on certain issues in the p ost-K yoto negotiations - notably A ustralia, C an ad a, Ja p a n and the Russian Federation - were deem ed unlikely to go so far as to b lock a consensus. H ow ever, there w as still w idespread concern am ong the organizers o f the n egotiation p rocess that som e o f these individual parties m ight refuse to join as o p p o se d to actively obstructin g - a consensus, which in itself w ould be severely dam aging to the prosp ects for entry into force and future developm ent o f the K yoto Protocol, and indeed confidence in the regim e. Such individual w ithdraw al, even if it allow ed other parties to go ahead, w ould therefore, in effect, also constitute de facto procedural blockage.

O v e r c o m i n g the thr eat o f procedural b l o c k a g e W orking to overcom e the threat o f procedural blockage is therefore a critical task for the organizers o f the negotiation process. A s discussed above, the main strategy for doing so is sim ply to encourage parties to strive extra hard to achieve consensus, through negotiated buy-in and otherw ise exchanging concessions. This, indeed, is the essence o f negotiation. T here are other procedural tools, however, that the organizers o f the negotiation p rocess can w ield to help secure a consensus when the threat o f procedural b lockage hangs in the air.

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Use of safety va lve s P ro ced u ral safety valves (see W erksm an, 1999) can be very h elpful in en abling parties to relinquish their d em an d s, yet still save face or secure a gu aran tee that their in terests will not b e ignored. T h e m ost com m on safety valve is for a reluctant party to m ake an explan ato ry statem en t on ad option o f a d ecision , setting out that p arty ’s own view s and in terpretation o f the decision. F o r ad d ed effect, the party may ask for the statem ent to b e noted in the rep ort on the session (Yam in and D ep le d ge , 2004). T h ere are many exam p les o f this in the clim ate change regim e, and indeed the tren d o f requesting explan ato ry statem en ts to be recorded in reports ap p e ars to b e on the rise. A t C O P 6 (part II), for exam ple, on ad optio n o f the Bonn A g re e m e n ts, the U S so u g h t to ‘e m p h asize th at o u r n ot b lo c k in g con sen su s . . . does not change our view that the Protocol is not soun d policy’, listing areas o f particular concern, notably its understanding o f decisions relating to financial com m itm ents (F C C C /C P /2 0 0 1 /M IS C .4 ). The U S did so again at C O P 7 (F C C C /C P /2 0 0 1 /M IS C .9 ). A lso at C O P 7, the R epublic of K orea m ade a statem ent on its un derstanding o f the status o f unilateral projects under the just-adopted decision on the C D M (C O P 7 report part I, paragraph 103). At SB S T A 16, N ew Z ealand, revealingly stressing that it w as ‘not a country to b lo c k ’, follow ed up the adoption o f conclusions on the IP C C TA R by expressin g regret at both their content and the process o f their negotiation (SB ST A 16 report, paragraph 14). SB S T A 19 saw a spate o f explanatory statem ents, with four parties recording their own interpretations o f a draft decision recom m ended for adoption by the C O P on L U L U C F projects under the C D M , and the Russian Federation expressin g concerns over the ad opted con clu sio n s on the scientific, technical and socio-eco no m ic asp ects o f m itigation (SB ST A 19 report, paragraph s 10 and 20). A nother safety valve open to reluctant parties is to obtain an undertaking that issues o f im portance to them will be taken up at a future session, or at least placed on the provisional agenda (see W erksm an, 1999). T h is can help to secure su pp ort b ack hom e for decisions o f the clim ate change regim e, as dom estic constituencies can be reassu red that their concerns are on the table at the international level. Two go od exam ples here include the case o f Iceland, which w as able to agree to the adoption o f the K yoto Protocol, despite adm itting that its (large growth) target was not achievable, by securing an undertaking that the issue o f the ‘im pact o f single projects’ w ould be taken up at C O P 4 (decision 1/CP.3, paragraph 5 d )/) A second exam ple is that of C an ada, w hose ability to join in with the consensus on the Bonn Agreem ents at C O P 6 (part II) w as greatly facilitated by the (eventual and reluctant) acceptan ce o f the parties that its p roposal concerning credits for the use of cleaner energy w ould be subject to future discussion (see C O P 6 (part II) report, part I, paragraph s 64 to 67 and part II, paragraph l ) . 5 The increasing use o f such safety valves, while allow ing decisions to be ad opted , raises the danger that contentious issues will sim ply continue to fester, and may also generate problem s with im plem entation, where countries have different understandings o f what has been agreed.

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Forcing c o n se n su s Another means o f overcoming the threat of procedural blockage is for the Chair to exploit the leverage granted to him /her by the lack of an agreed definition o f consensus. As discussed in Chapter 4, this is an extremely delicate task, requiring the Chair to make a careful judgm ent on whether, when pushed, a party will consent to a decision, or whether the issue is of fundamental im portance to that party, and it will therefore insist on obstructing a consensus. In this respect, the Chair relies on the reluctance o f parties to be seen to actually block a decision that the other parties agree to (Yamin and D epledge, 2004). Such forcing o f consensus is relatively rare, but has been used to good effect on a num ber of occasions. C h air E strad a, during his tenure as Chair o f the K yoto Protocol negotiations, undoubtedly made the greatest use o f the C h air’s prerogative to declare consensus, often taking considerable risks in doing so. The most extreme exam ple occurred at A G B M 8 in 1997 (the last negotiating session before Kyoto) where, after protracted debate over the w ording o f a relatively minor piece of text, Chair E strada declared that there was consensus to adopt one of the options, although three parties (Australia, C anada, US) had argued against it. E strada stated that, in order to overturn his ruling, there would need to be a two thirds majority vote of parties (A G BM 8, 1997d). In doing so, he was appealing to draft rules 42.2 and 42.3, which allow a decision on procedural matters to be taken by a vote. The presiding officer is empowered to rule on whether an issue is procedural or substantive, and that ruling can only be overturned by a majority vote. The extent to which Chair E strada could rely on these unadopted and unapplied provisions to force a vote, however, was very dubious (W erksman, 1999). Many delegates intervened to urge him not to hold a vote. E strada eventually desisted, but stated that, in doing so, he understood his ruling was no longer under challenge, and pushed through his interpretation of consensus. The debate that led to this outcom e (see Box 8.1), usefully illustrates several points raised in this chapter, including contrasting definitions of consensus, the reluctance o f parties to resort to a vote, the implicit threat of some O P E C states to block consensus in Kyoto, and E strad a’s resolve to force decisions through. While the text pushed through at A G B M 8 was of little practical consequence and was soon superseded, E strada later secured agreement at C O P 3 on various articles of the Kyoto Protocol through similarly forceful declarations of consensus. E strada declared that there was consensus to adopt Article 10 on general commitments, Article 12 on the CD M and Article 17 on em issions trading, despite open expressions o f dissatisfaction with those articles by a significant number o f parties. H e declared consensus to delete the former draft article on voluntary commitments in similar circum stances. In doing so, he surm ised that, while parties would inevitably stick to their positions until the very last minute, when faced with the prospect o f actually blocking the Protocol, they would bow to his declared consensus. H e was proved right. Interestingly however, the Kyoto Protocol as a whole was agreed in the Com m ittee of the W hole through a very clear and unam biguous

Decision-making Rules

B o x 8.1 Estrada:

99

The ' a l m o s t v o t e ' ...if there are no o th er c o m m e n t s . . . ! will rule that there is co n se n su s to keep th at text with the exception o f three countries which are not agreed on that, and we keep that text with consensus. It's so decided, [gavel]

US:

I do not accept y o u r defin ition of co n se n s u s ...

con se nsu s

m e a n s lack o f a stated objection, and I have very clearly stated my objection, as have others. Venezuela:

There can be no g e n e ra l c o n se n su s if a n y single country, a n d far less if three countries, raise objections. W e are ready to contradict y o u r ruling.

Estrada:

OK. I have ruled that w e have con se nsus in a situation w h e re w e have three countries with a different view. This po int has been ch allenged b y ... V enezuela. In order to overco m e my ruling, he needs tw o-thirds of the v o t e s ... I will call a rollcall .. .that will clarify the rest of the w o r k for us.

Egypt:

Legally sp e a k in g ... you have a correct ruling ... W h a t others were sp ea k ing a b o u t w a s u n a n im it y ... but y o u r ru ling m eans w e have con se nsus minus, which m ean s you reflected the sense o f the n e g o tia tin g p r o c e s s .. .1 appeal to ev ery bo dy to g o a h e a d with y o u r ruling w i t h o u t ... vo tin g which w o u ld create a n e w precedent.

M auritan ia:

W e all cherish y o ur a u t h o r i t y ... W e are preparing a ne w legal agreem ent, we all w a n t it to be ratified by every country.

H un gary:

There is no need for any ge nera l consensus. You w ere very g o o d in the past, and you will be very g o o d even now, at u n d e rs t a n d in g the g e n e ra l feeling in th e room.

S audi Arabia: Estrada:

There is n o n e e d to use y o u r h a m m e r ... w e ask you to relax! 1 un derstand the ch allenge to my ruling has been w ith dra w n, so we d o n 't need to g o to the vote.

Kuwait:

Consensus, it is a very im p ortan t matter. It will face us in K y o t o ... 1 w a n t an official U nited N a tio n s le gal definition o f consensus.

Estrada:

From the very b e g in n i n g ... a g r o u p of countries w a s trying to stop the process.../ will do everything to ove rco m e those c o u n tr ie s... 1 am not g o i n g to be [held] hostage.

A G B M 8 (1997d); extracts, e m ph a se s added

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expression of consensus by all the parties - indeed, there were no objections when E strada declared its unanimous approval. O ther cases of forcing through consensus have punctuated the history of the climate change regime. At a late night meeting o f SBSTA 9, for exam ple (held in conjunction with C O P 4 in 1998), the US objected to recomm ending a draft decision on technology transfer for adoption by the C O P (see E N B , 1998). This followed protracted small group consultations, along with a com prom ise proposal by the SBSTA Chair, Chow Kok Kee. Chair Chow, aware that the US was the only objector and that failure to accept the draft decision w ould provoke ill will am ong developing countries, pushed through the acceptance of the text in the SBSTA , and said the US position w ould be noted in the report. The U S was unhappy with this safety valve solution, and vowed to raise the issue in the COP. Interestingly, however, the U S did not then object to the formal adoption of the decision by the C O P less than 36 hours later. This suggests that the SBSTA Chair was indeed right to push the decision through, as U S concerns were not founded sufficiently deeply to cause that country to take the politically difficult step of preventing the actual adoption of the decision in the C O P itself.6 There are other cases where Chairs have declared consensus after clear expressions o f dissent, or have even threatened to call for a vote, where they surm ised that objections were not founded on fundam ental concerns. This occurred, for exam ple, at SB ST A 14 in 2001, where Chair D ovland eventually overrode objections by a handful o f mostly O P E C parties to the adoption o f conclusions on the issue o f policies and m easures (see E N B , 2001, p9). The seemingly rather trivial question was whether the SB ST A could decide on terms o f reference for a w orkshop before the C O P had taken a form al decision on the b roader issue o f policies and m easures, which, due to the failure o f C O P 6, it w ould not be able to do until after the scheduled dates o f the w orkshop. After threatening to call a vote on what he saw as a procedural matter, D ovland ruled that the SB ST A was entitled to decide on the w orkshop, follow ing an earlier C O P m andate. H e was able to take such strong action as he judged that the objections were procedural in nature and m otivated by filibustering rather than fundam ental national interests, and he had the clear supp ort o f the vast majority of parties, including explicit supp ort from other developing countries, to adopt the conclusions. Forcing consensus is always a very risky strategy. If a Chair m isjudges the situation, and declares consensus when in fact the party concerned is not p rep ared to acq u iesce, then the resulting decision risks illegitim acy. Although this has not h appened in the clim ate change regim e, there are cases in the b roader international arena where decisions pushed through in the face o f a clear objection have then been disow ned as illegitim ate by the objecting party (or parties) and have triggered serious disquiet over the decision-m aking process on the part o f others. A high-profile case occurred at the sixth C O P o f the C B D in 2002, where A ustralia raised a form al objection to certain elem ents in a draft decision on alien species presented to the C O P plenary, and did not agree to sim ply recording its position in the rep ort (see C B D , 200 2 , p a ra g ra p h s 2 9 4 -3 2 4 ). A fter in con clu sive

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con sultation s behind the scenes, the P resid en t nevertheless ad o p ted the decision as p resen ted to the C O P . P rior to doin g so, the P resid en t m ade clear her view that ‘con sensus did not m ean unanimity, but, rather, b ro ad agreem en t’. A s well as A u stra lia’s form al ob jection , this led to p ro te sts over the decision -m aking p ro ced u re from other parties, and lingering d o u b ts over the legitim acy and legality o f the decision.

A lte rn a tiv e s to a d o p t io n A nother strategy em ployed by the organizers o f the negotiation p rocess to overcom e procedural blockage has been to use alternatives to adoption in order to register agreem ent am ong the vast majority o f parties. This strategy has proved useful w here a sufficient n um ber o f parties were indeed prepared to b lock ad option, so that the C h air w as unable to force through consensus. T h e m o st h ig h -p ro file e x a m p le h ere is the G e n e v a M in isterial D eclaration (see C O P 2 rep ort, part I I ) , which w as n egotiated by m inisters at C O P 2 in 1996. T h e aim behind drafting such a declaration, m ooted by several parties and the organ izers, w as to give im petus to the K yoto P rotocol n egotiation s. T h e final version w as a stron g text, en dorsin g the findings of the I P C C ’s Secon d A ssessm en t R eport and calling for the ad optio n o f legally b in d in g em ission targets at C O P 3. The negotiations on the D eclaration m ade it clear that there w ould be a ‘trad e-off betw een the strength o f the content and the n um ber o f su p p o rte rs’ (O berthiir, 1996, p 199). T h e strength o f the D eclaration w as too great for a m inority o f parties, namely, 13 O P E C states, the Russian Federation and A ustralia7, who raised form al objections to it. How ever, the majority o f parties were not prepared to w eaken the D eclaration to try to m uster a consensus, but instead sought to m ove ahead and give it recognition in w hatever way possible. Therefore, on advice o f the secretariat, C O P 2 President C him utengw ende p ro p o sed that the D eclaration be taken note o f and annexed to the report of the session, with objections (and indeed statem ents o f support) also recorded in the report (see C O P 2 report, part I, section IV ).5 This p rop osal met with ‘sustained ap plau se o f the great majority o f delegation s’ (O berthiir, 1996, p200), which undoubtedly influenced the o pp osin g p arties’ decision to acquiesce to this proposal. A lthough the D eclaration w as not ad opted , the fact that form al recognition o f it was achieved despite the objections o f a small group o f parties, and that the identity o f these parties was clearly revealed, was critical to underscoring the will o f the m ajority o f parties not to let a small group prevent progress. As one interviewee pu t it: The declaration w as quite im p o rta n t. . . because having a footnote o f the parties that d id n ’t su p p o rt it w as such a clear indication of the special interests that w ere trying to block the process and the rest o f the w orld. It w as a really im portant m om ent when actually they allo w e d . . . the declaration to m ove forw ards and it becam e the basis for the beginning o f a legally binding target.

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Th e G -77 and China later ‘expressed concern with the procedure used for adoption o f the G en eva D eclaration ’ (E N B , 1996, p 12), but sto p p ed short of asking for this concern to be form ally noted or recorded in any way, suggesting that the G ro u p , as a whole, tacitly su pp orted it. Taking note o f the D eclaration in this way w as thus as significant, in fact perh aps m ore so, than if it had been form ally ad opted . M oreover, the fact that the D eclaration was not formally ad opted is now alm ost forgotten; it w as the fact that agreem ent was registered that m attered. A second exam ple o f an alternative to adoption occurred at SB ST A 3, during the sam e sessional period as C O P 2. T h e SB ST A was experiencing extremely laborious and frustrating negotiations on the IP C C ’s Second Assessm ent Report, where a small num ber o f mainly O P E C parties were objecting to a strong en dorsem en t o f the re p o rt’s fin din gs, preferrin g to highlight scientific uncertainties. In frustration, SB ST A Chair Farago called for a ‘show of h an ds’ of those who opp osed the text he had put forw ard as a com prom ise. The result indicated that 11 countries - all O P E C m em bers plus China - did not agree with it, and the majority o f delegates did (E C O , 1996). W hile this ‘show of han ds’ did not, of course, constitute a form al vote and nor did it represent a form al decision, its im pact was the sam e in registering the majority view on the issue. Such a strategy o f using a ‘show o f h an ds’ - in effect an informal vote - has only very rarely been used in the climate change regime, but does have the potential o f helping to highlight the wishes of a large majority, where consensus is being blocked.

S u m m a r y a n d c on c l u d i n g r emarks Th is chapter has explored the im plications o f the consensus im perative that exists in the clim ate change regim e, along with strategies for overcom ing the resulting threat o f procedural blockage. T h e experience o f the K yoto Protocol negotiations, in particular, dem onstrates that the net effect o f the consensus im perative is am bigu ous. It bolsters procedural equity by ensuring that the views o f small m inorities are taken into account, thereby securing the greater inclusivity and legitim acy o f the final agreem ent. H ow ever, the consensus im perative com bined with the presence o f som e parties who w ould be h appy to see the negotiations fail can have the effect o f w eakening the substantive strength oi the eventual agreem ent while raising the transaction costs o f the negotiations. M oreover, it open s up the possibility o f veto by a sm all minority o f obstruction ist states that, in itself, w ould be highly procedurally inequitable. That the consensus im perative did not lead to the vetoing o f the Protocol w as due, at least in part, to the m itigating actions o f the organizers o f the negotiation p rocess, notably C hair E strad a. In deed, the lack o f a voting rule and an unclear definition o f consensus in the context of, as one interviewee put it, ‘a very tough Chairm an with creative definitions o f con sen su s’ may even have been an advantage to reaching agreem ent. E strad a w as able to cleverly ad apt the consensus requirem ent ‘to the various decision challenges at h an d ’ (W ettestad, 1999, p216), introducing an elem ent o f flexibility into d ecision ­ m aking that w as critical given the com plexities and sensitivities o f the

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negotiations. Several interviewees agreed that the absence of form al decision­ m aking rules may have been ‘a bit of a blessing in disguise’. Perhaps surprisingly, the absence o f a voting rule, and the resulting consensus imperative, is no longer seen as a m ajor concern in the climate change regime. Indeed, the non-adoption of the rules of procedure more generally is viewed as little more than a background irritation. This is evidenced by the fact that consultations by C O P Presidents on the rules of procedure have almost ground to a halt, with no serious attem pts to resolve the issue since C O P 3. The fact that the Kyoto Protocol was adopted by consensus, against expectations, may have contributed to the downplaying o f the im portance o f agreeing a voting rule. The potential advantages o f the flexibilities o f consensus, however, were only realized in the case o f the Kyoto Protocol negotiations because o f the presence of a strong presiding officer with good judgem ent, a situation that cannot always be guaranteed in multilateral negotiations. Taking decisions on the basis of consensus will alm ost always be preferable in an intergovernmental setting, and a voting rule w ould certainly not provide a panacea to the climate change regime. Where countries’ fundam ental interests are at stake, out-voting them is unlikely to be conducive to the continuation of a legitimate, inclusive, almost universal regime. However, the number o f issues on the agenda o f the regime bodies is multiplying, together with the technical and rather detailed content of the decisions needed to advance those issues. The need for consensus on each and every action taken under the regime certainly threatens to delay the process, not least by opening up opportunities for deliberate filibustering. In this context, the benefits in terms of increased efficiency of using voting on more detailed matters might outweigh the small losses in terms of procedural equity. In this respect, it is interesting to note that the three limited m em bership bodies set up under the Kyoto Protocol - the CD M E xecutive B oard , the Article 6 Supervisory C om m ittee and the Com pliance Com m ittee - all provide for last resort majority voting for their decisions (Yamin and D epledge, 2004). Given the political fractures that currently exist within the climate change regime, along with the continued influence of obstructionist parties, it w ould be unwise to place too much faith in (the ambiguity of) consensus and to be com placent over the absence of an agreed voting rule.

9

Negotiating Arenas

. .. one of the central organizational problem s [is] almost always to strike. . . a balance between a large, formal ‘debating society’ in which all sovereign states are allowed to participate on a full and equal basis, and a smaller, informal setup, where most of the collec­ tive learning process goes on, where solutions are tested and finally agreed on before being referred to the plenary (Freymond, 1991, P 130).

Introduction Like all complex multilateral processes, the climate change negotiations play out in a variety o f arenas, from the formality and ceremony of the C O P plenary, to the chaotic frenzy of behind the scenes deal-making. The choice of arenas throughout a negotiation, and how these arenas are managed both individually and collec­ tively, is a key dimension to the organization of the negotiation process. In this respect, a dilemma common to complex multilateral negotiations, and a recurring theme throughout this chapter, is how to balance the efficiency gains of small, informal, closed groups against the transparency and procedural equity provided by large, formal, open arenas. There are no set rules governing the nature, structure and proceedings of informal groups - indeed, these are informal by virtue of having abandoned some, but not necessarily all, o f the formal rules for the conduct of business (see Chapter 7) - thereby opening up considerable room for improvisation in their design. The organizers of the negotiation process have taken advantage of this flexibility, improvising with diverse types of informal groups (and formal/informal hybrids), and combining these in various ways with formal settings at different stages of negotiating rounds. This chapter explores the characteristics of the main types of negotiating arenas used in the climate change regime (summarized in Table 9.1), and discusses how these arenas have been used at varying points in the history of the climate change regime to seek to promote productive negotiations. This chapter begins with some observations on how the overall institutional setting of the negotiations has varied for the Kyoto, post-Kyoto and postM arrakesh rounds. We then examine formal, open settings, including C O P and subsidiary body plenary meetings, along with the hybrid formal/informal groups that often serve as working bodies for the COP. We then turn to informal groups that are open to all parties, including contact groups and informal consultations, before focusing on ‘friends’ groups and associated ‘shuttle diplomacy’, that is,

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informal meetings convened personally by the presiding officer, whose partici­ pation is limited to invited parties. The chapter then moves briefly into the corridors to explore the unofficial talks behind the scenes which, although unregulated by the official process, are often the source of the final deal in a negotiation. T a b le 9.1 Main types o f negotiating arenas in the climate change regime C a te g o ry o f arena

N e g o t i a t i n g a r e n a in t h is c a t e g o r y

Formal, ope n

Plenary m eetings (COP and subsidiary body) C OP W o r k i n g Bodies

Informal, ope n

Informa l gr o u p s (e.g. contact groups, nego ti ati n g gr o ups) Informal consultations

Informal, closed

'Fr ien ds' gr o u p s

Unofficial

Behind the scenes

The climate c h an ge institutions The institutional structure of the climate change regime was introduced in Chapter 3. To recap, the C O P serves as the ‘suprem e’ decision-making body, assisted by two subsidiary bodies, one on Implementation, and one on Scientific and Technological Advice. The SBI and SBSTA are more technical bodies that usually meet twice-yearly to prepare decisions for the high-profile annual COP. A separate body was convened to conduct the Kyoto Protocol negotiations, known as the Ad H o c G rou p on the Berlin M andate (A G BM ). The conduct of negotiations in a specially convened, dedicated body rather than using the existing subsidiary bodies had several advantages. Importantly, it provided a clear channel for the exercise o f strong process-oriented leadership by that body’s Chair, Raul E strada, enabling him to take responsibility for the full negotiation process in a coherent manner (see also Chapter 4). According to an interviewee, ‘you need that kind o f single Unitarian leadership to push that sort o f thing through, where everyone feels a common kind of com m itm ent’. A single body also conferred greater status and distinction on the process, providing a focus for public and m edia attention, and ensuring that more time was dedicated to the negotiations. Another advantage was that dealing with all issues under one institutional umbrella helped to maintain coherence in the negotiation process, while a sense of community and identity built up around participants. It also helped to insulate the Protocol negotiations from controversial debates taking place within the permanent subsidiary bodies, such as the protracted debate over the IP C C ’s Second Assessm ent Report, which was contained within the SBSTA . Com m enting on the decision to set up the A G B M in 1995, O berthiir and Ott noted that ‘establishing a special ad hoc body should ... improve the prospects for quick progress over the next two years to meet the deadline of 1997’ (Oberthiir and Ott, 1995, p l4 6 ).

106

The O rganization o f G lo b al N egotiations

In contrast, the post-K yoto negotiations were con ducted within the existing two subsidiary b o dies, with the issues under negotiation being allocated to one or the other body. Issues that cut across the m andates o f the SB S T A and S B I the flexibility m echanism s, adverse effects, and later also capacity-building were jointly allocated to both bodies. T h e issue o f com pliance, for its part, was ad dressed in a joint w orking group on com pliance established under the subsidiary b od ies by C O P 4. Therefore, despite covering a package o f issues enshrined in the B uen os A ires Plan o f Action (BA PA ), the post-K yoto n e gotiation s w ere m uch m ore d isag g re g ate d than the previou s K yoto negotiating round in term s o f their institutional structure and presiding officers. Although joint m eetings o f the subsidiary b odies on their joint issues ensured that at least those issues were dealt with by one body, there was no sense o f unitary leadership en com passin g the w hole BA PA (see also C h apter 4). Since the adoption o f the M arrakesh A ccords and the close o f the postK yoto negotiating round, negotiations have continued in the two subsidiary bodies. T his, however, is entirely ap pro priate, given that these are routine regim e developm ent negotiations, w ithout any packaging clem ent to them. With these observation s on institutional structure in m ind, we now turn to the various arenas in which the clim ate change negotiations play out.

Formal o p e n arenas: plenary m ee t i n g s and variants Formal ple na ry m e e t in g s Th e central stages for the clim ate change negotiations are the plenary m eetings o f the C O P and subsidiary b odies, which are typically attended by all parties present at the session and are open to non-state observers, including the m edia. Th ese plenary m eetings are required to adhere to all form al rules and establish ed practices for the con duct o f busin ess, such as seating arrangem ents in alphabetical order,1 provision o f interpretation, rules governing the right to speak and quorum requirem ents, and therefore enjoy m axim um transparency and procedural equity (see C h apter 7). T h e presen ce o f full transparency and procedural equity safeguards m eans that plenary m eetings are the only arenas where fo rm al decisions can he taken (Yamin and D ep ledge, 2004). This includes procedural decisions, such as adoption o f the agenda and organization of work. Form al plenary m eetings therefore serve as a kind o f governing body, deciding on the agenda, establishing inform al grou ps to take up agenda items, and finally adopting conclusions or decisions. It is taken for gran ted in the clim ate change regim e, and in deed in other in ternational forum s, that plenary m eetings are not con ducive settings either for active deb ate or bargain in g. T h e high transaction costs involved in adherin g to form al rules for the con duct o f b usin ess, the large n um b er o f parties presen t, and the adm ission o f the m edia and N G O s all serve to constrain frank and sp on tan eou s negotiation (Yamin and D ep le d ge , 2004). O n e interview ee echoed the sen tim en ts o f m any others by saying: ‘I f you ask d elegates, they all know, we can ’t n egotiate in plenary. E verybody will tell you the sam e .’ Interestingly, som e presid in g officers have tried, on occasion ,

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to provoke m ore open debate in a plenary setting by convening an inform al plenary. Box 9.1 below discusses this apparent oxym oron and its lim ited, but useful, applications in the climate change negotiations so far. In the SBSTA and SBI, every item on the agenda will first be addressed in a plenary meeting. This initial plenary debate, however, will almost always be confined to the delivery of prepared statements by delegations and negotiating coalitions, rather than any substantive bargaining. E xcept for the most uncontroversial ones, agenda items will then be referred to informal groups for further work. Indeed, there are signs that initial plenary debate in the subsidiary bodies is becoming increasingly brief, as parties save their energy and words for the real work that they know will take place in informal groups. Subsequent plenary meetings will then be held to hear reports from the informal groups, take stock of progress in the negotiations, and finally to adopt decisions. In the case of the COP, plenary discussion is even more limited. An initial plenary meeting will usually refer all debate on most of its substantive agenda items to the subsidiary bodies or another working body (see below).

The functions o f formal plenary m eetings As noted above, the main purpose o f plenary meetings is not to negotiate. Rather, plenary meetings provide all parties with an equal and public opportunity to posture and stake out their positions, formally placing their views on the table and making a bid for their preferences in the negotiations. The prepared opening statements o f key players - notably the E U , G-77 and China and the U S - thus often serve as helpful barom eters for the presiding officers and secretariat, and no doubt other parties, to get a feel for the extent of flexibility these players are prepared to show, and therefore how the session is likely to evolve. A public opportunity for a delegation to express itself without interruption with all procedural safeguards in place tends to be particularly im portant for developing countries, who can feel that they have placed their national positions on record, even if they then have limited influence in the bargaining process (see also Chapter 7). Delivering prepared statements in an open plenary can similarly serve as an avenue for letting o ff steam\ parties make strong interventions, but having expressed themselves publicly then take a more constructive approach in the bargaining process. Parties might deliver such hard-line statements motivated by genuine frustration, the need to appease extreme factions within a delegation or coalition, or to ‘play to the gallery’ (Fisher et al, 1992, p33) of N G O s and the media. For exam ple, at the closing plenary o f A G B M 8 on the eve o f C O P 3, the U S m ade an unexpected statement that the Protocol should not adversely affect its military capability (U SA , 1997). The U S delegation had been under pressure from the Pentagon to raise this issue, and had chosen to do so at the closing plenary where it knew the m edia and N G O s would be present, to reassure the Pentagon that its concerns had been taken on board (personal com munication). H aving been seen to convey a strong m essage in a public arena, the U S delegation then engaged in bargaining on the issue in informal and unofficial groups in a much more discreet and conciliatory manner.

108

T h e O rg a n iz a tio n o f G lo b a l N e g o tia tio n s

Once agenda items have been referred to informal groups, formal plenary meetings can perform a very im portant role as stock-taking forum s, where the presiding officers of the various informal groups are asked to report on their work, and delegates are given the opportunity to comment. H olding such stock-taking plenary meetings can be critical to mitigating the weaknesses of informal groups (see below), in particular enhancing transparency relative to N G O s and minimizing the extent to which parties not able to participate effectively in the informal groups, especially non-Anglophones, feel included. Stock-taking plenary meetings can thus function as a system o f checks and balances, allowing parties not involved in the informal groups to raise concerns, if necessary, at the emerging results o f the groups. A good exam ple o f where small, poorly resourced delegations successfully used a plenary in this

Box 9.1 Informal plenary meetings A c o u p l e o f e x a m p l e s e xis t in t h e c l i m a t e c h a n g e r e g i m e o f w h e r e in f o r m a l plenary am ong

m e e tin g s

have

been

convened

to

encourage

m ore

part ie s. In t h e s e cases, a f o r m a l p l e n a r y m e e t i n g

declared

by the

presiding

officer to n o w

open

debate

has sim ply be e n

have the status o f an

inform a l

m e e t i n g , w h i l e r e t a i n i n g all t h e t r a p p i n g s - i n t e r p r e t a t i o n , s o u n d r e c o r d i n g s , a l p h a b e t ic a l- o r d e r c o u n t r y s e a tin g , use o f f la g s to s ig n ify desire to s p e a k - o f a fo rm a l plenary m eeting. The in fo rm a l d e sign a tio n , how ever, a lo n g w ith a m o r e r e l a x e d c h a i r i n g style o n t h e p a r t o f t h e p r e s i d i n g officer, is u s u a l l y sufficie n t to p r o v o k e a s o m e w h a t m o re o p e n de b a te . A t C O P 8, f o r e x a m p l e , C O P P r e s i d e n t B a a l u c o n v e r t e d t h e C O P p l e n a r y t o an in fo rm a l setting to a llo w fo r an o p e n e x c h a n g e of v iew s o n inp uts for a d r a f t m i n i s t e r i a l d e c l a r a t i o n . T h e i n f o r m a l i t y o f t h e s e t t i n g w a s u s e f u l in p r o v i d i n g a s a f e a n d p o l it ic a ll y less c o n t r o v e r s i a l f o r u m f o r p a r t i e s t o c a n d i d l y express

sim m erin g

concerns

co m m itm ents for n o n -A n n e x heated

exchanges

in

an

reg a rd in g

the

p o ssible

m ention

of

future

I p a r t i e s in t h e d e c l a r a t i o n . C o n t a i n i n g

in form al

arena,

w h ile

e n su rin g

openness

such and

t r a n s p a r e n c y t h r o u g h a p le n a ry setting, h e lp e d to p r e v e n t bitterness o v e r the is su e f r o m s p i l l i n g o u t i n t o o t h e r a s p e c t s o f t h e n e g o t i a t i o n s . Another

c a se o c c u r r e d

du rin g

the

w h e r e C hair Estrada reg u la rly c o n v e n e d

early

Kyoto

Protocol

ne go tiatio n s,

in fo rm a l p le nary m e e tin g s o f the

A G B M as a n a l t e r n a t i v e t o e s t a b l i s h i n g i n f o r m a l g r o u p s . In d o i n g so, h e s o u g h t to a c h i e v e t h e b e s t o f b o t h w o r l d s , t h a t is, a n o p e n , fu ll y t r a n s p a r e n t f o r u m ( u n l i k e i n f o r m a l g r o u p s ) , b u t o n e w h e r e a c tiv e d e b a t e t o o k p l a c e ( u n l i k e fo rm a l p le n a ry m eetings). T h e s u b s i d i a r y b o d i e s a l s o o c c a s i o n a l l y c o n v e n e d in a n i n f o r m a l p l e n a r y s e t t i n g in t h e p r e - K y o t o p e r i o d . T h e in c r e a s e in t h e b u r d e n o f w o r k o f t h e subsid ia ry

bo d ie s

post-Kyoto,

in fo rm a l c o n s u lt a t io n s are

however,

now

means

preferred

that

over the

in fo rm a l

groups

and

m ore tim e-con su m in g

in f o r m a l plenary. Note : 1 A n o t h e r a t t e m p t at d e s i g n a t i n g a p l e n a r y m e e t i n g as i n f o r m a l w a s t h e case o f t h e in fo r m a l h ig h -le v e l p le n a r y (IHLP) u s e d at C O P 6 and, t o a lesser extent, C O P 6 (pa rt II). T h e P re s id e n t 's a m b i t i o n s f o r this f o r u m , h o w e v e r , w e r e greater, w i t h th e IH L P e n v i s a g e d as a full w o r k i n g b o d y o f t h e COP. It is t h e r e f o r e d iscu ss e d in m o r e detail u n d e r ' C O P w o r k i n g b o d i e s ' be low .

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way w as in the final stages o f negotiations at C O P 3 on the issue o f how the em erging protocol should ad dress possib le im pacts o f clim ate change and m itigation m easures on developing countries. H ere, the inform al group Chair reported to a plenary m eeting o f the Com m ittee o f the W hole (a w orking body o f the C O P chaired by E strad a - see below ) that agreem ent had alm ost been reached on a text. H ow ever, when that text w as circulated in plenary, several L D C s expressed deep concern that it did not m ake specific mention o f their group o f countries (see F C C C /T P /2 0 0 0 /2 ). T h e ensuing heated debate suggested that certain O P E C countries had enjoyed un due influence over the inform al group, and that L D C s had been unable either to participate in it or to m ake their views heard. T h e M auritanian delegate m ade use o f the plenary setting to explicitly draw public attention to the actions o f O P E C countries, which had been hidden in the privacy o f the inform al group (which w as closed to observers). The delegate stated, ‘I assum e that the O P E C countries op p ose inclusion o f L D C s? Is this correct? If so ... the international community should know about this’ (CoW , 1997e). C hair E strad a requested the inform al group Chair to consult further, and reference to the situation o f L D C s w as eventually ad ded to the text. In this case, the m onitoring and supervisory role o f plenary m eetings was crucial to ensuring that the views o f all were heard. It is not uncom m on for inform al grou ps to fail to reach agreem ent. In such cases, the negotiating text will be presented back to a plenary m eeting o f the C O P or subsidiary bodies, which will then serve as negotiating forum o f last resort to resolve the issue at hand. Taking an issue b ack to plenary in this way - or even just threatening to do so - can be helpful w here there is suspicion that representatives o f negotiating coalitions are not faithfully reflecting their negotiating m andate, or sim ply to place pressure on recalcitrant grou p s to com prom ise. T here are many exam ples o f issues being brough t b ack to plenary, m ost com m only to the subsidiary bodies. At SB I 19 (held in conjunction with C O P 9 in 2003), for exam ple, the C hair o f the inform al group on issues o f specific concern to L D C s reported in plenary that there had been no agreem ent in the group on a p rop osed draft text. T h e coordinator o f the L D C negotiating coalition w as able clearly and openly to explain his g ro u p ’s problem s with the p rop osed text in plenary and, follow ing debate in plenary, an am endm ent was found to the satisfaction o f all groups. The presiding officer will, however, often suspend the plenary meeting to convene a small group informal consultation rather than engage in bargaining in the plenary setting, which can be laborious. This approach was follow ed, for exam ple, for negotiations on the IP C C Third Assessm ent Report (TAR) at SB ST A 16, where the informal group failed to reach agreement, and had to appeal back to plenary to resolve outstanding disagreement. After a debate in plenary, which usefully exposed the strong but isolated position o f the Russian Federation, the SB ST A Chair was able to reach agreem ent in a small informal consultation, where parties were able to climb down without fear o f losing public ‘face’. It is less com m on for the C O P plenary to be used as a forum for last resort bargaining. D ue to its m ore cerem onial and high-profile nature, along with the difficulties faced by m ost C O P Presidents in chairing a spon tan eous negotiation (see C h apter 4), parties and the organizers o f the negotiation p rocess usually

710

The Organization o f G lob al Negotiations

exert considerable effort to ensure that texts presented to the C O P plenary for adoption have already been approved in the subsidiary bodies or another working body. There are cases, however, where the C O P plenary has served as a negotiating forum . One exam ple was the proposal put forward by C anada on cleaner energy at C O P 6 (part II). Informal consultations convened on this issue had not come to a consensus, and an extensive debate took place in plenary before agreement was reached.2 In this case, open plenary debate was very useful in illustrating and exposing the extent of differing views, in particular, the absence o f a united G-77 position. Another incident occurred at C O P 9 where neither the informal group nor the convening SB I plenary were able to conclude negotiations on guidance for the L D C fund. In this case, the SBI plenary actually referred the issue back to the C O P plenary, an unusual move. This placed even more pressure on parties to com prom ise, which they eventually did, when the C O P President suspended the C O P plenary for a small group consultation. L ast minute bargaining in plenary can also occur less dramatically in cases where not all parties have been able to participate actively in an informal group, or where an overlooked problem is found in the text presented for adoption. It is not uncommon for a party (even one that has participated actively in the informal group) to identify a concern with a draft decision circulated for adoption in plenary, even if the text has previously been debated at length and agreed in an informal group. If this occurs, the Chair will often try to find a fix to the language through brief debate in plenary, rather than reconvening the informal group. At SBSTA 11 in 1999, for exam ple, China objected to a phrase in the draft guidelines for preparing Annex I party national communications that were being presented for final approval by the SB ST A plenary, even though these had been exhaustively negotiated in an informal group. The SBSTA Chair sought to find an acceptable textual am endm ent in the plenary meeting, surm ising that reconvening the informal group would take too long, would convey an im portance to the issue that was not w arranted, and might incite other parties to raise additional issues with the text. Keeping the debate in an open plenary helped maintain pressure on all parties to agree to a solution, which the SBSTA Chair was eventually able to broker. It is important to underline, once again, the distinction between plenary meetings of the C O P and subsidiary bodies. C O P plenary meetings are highly formal, ceremonial events, which are almost always confined to prepared statements - often indeed to stake out positions, ‘let off steam ’ or ‘play to the gallery’ - and the taking of decisions, including on the organization of work. Otherwise, C O P plenary meetings are tightly choreographed by the secretariat to avoid unexpected events and spontaneous debate (Yamin and D epledge, 2004). This does not mean that C O P plenary meetings always unfold sedately and without excitement. The contentious nature o f the climate change negotia­ tions ensures that moments of high dram a have, on occasion, punctuated the solemnity o f C O P proceedings. A good exam ple was the presentation o f the G eneva Ministerial Declaration to the C O P plenary at C O P 2 in 1996, which provoked heated interventions, followed by thunderous applause when the C O P President proposed taking note o f the text. Another exam ple was the im passioned debate that burst forth during a C O P 3 plenary meeting following

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the tablin g o f a p ro p o sa l by N ew Z ealan d on the future developm en t o f the regim e, in clu din g a tim etab le fo r the n egotiation o f developin g country com m itm ents. M o st d elegation s w ere un aw are that this p ro p o sa l w ould be tab led , and the o rgan ize rs’ plan to avoid d eb ate by m ovin g onto oth er issu es w as thw arted by the large n u m b er o f req u ests fo r the floor and the stron g in terventions o f parties.

C O P w o r k i n g b o d ie s N otw ith stan d in g these h eated exch an ges, the poin t rem ains that the plenary fun ction s o f takin g initial interventions on su b stan tive ag e n d a item s, sto c k ­ taking, or serving as b argain in g forum s o f last resort, are usually referred by the C O P to one o r m ore ‘w orking b o d ie s ’. T h e m ost com m on ap p ro ach h as been fo r the su b sid iary b o d ie s to serve as w orking b o d ie s o f the C O P , w hen these have been m eeting in parallel with it. H ow ever, fo r the finales o f m ajor negotiatin g ro u n ds, the organ izers o f the negotiation p ro c e ss have often o p te d to convene an alternative w orkin g b ody (Yam in and D e p le d g e , 2 004). T able 9.2 sum m arizes the differen t ap p ro ac h es used to d ate, w hich are d iscu sse d furth er below.

Table 9.2 Working bodies o f the C O P COP

W o r k in g b o d y

1

C o m m ittee of the W h o le

2

S u b s id ia r y b o d ie s

3

C o m m i t t e e o f the W h o l e

4 and 5

S u b s id ia r y b o d ie s

6

W e e k 1: S u b s id ia r y b o d ie s W e e k 2: I n f o r m a l h ig h - le v e l p l e n a r y

6 (part II)'

( In f o r m a l n e g o t i a t i n g g r o u p s ) Last days: T h e G r o u p (limited m e m b e r s h i p fr ie n d s g r o u p ) .

V

( In f o r m a l n e g o t i a t i n g g r o u p s )

8, 9 a n d 10

S u b s id ia r y b o d ie s

Last days: Th e Fez 1 G r o u p (limited m e m b e r s h i p frie nds g ro up).

N o te : S h a d i n g in d icat es the fin ale o f a m a j o r n e g o t i a t i n g r o u n d . N o te : 1 Th e s u b s id ia ry b o d ie s did m e e t in parallel w it h C O P 6 (par t II), but did n o t t a k e up a n y issues u n d e r t h e p o s t - K y o t o n e g o t i a t i n g a g e n d a . N o te : 2 T h e C O P p l e n a r y did refer s o m e issues to t he s u b s id ia ry bo die s, b u t t hes e w e r e no t directly rel ated to t h e p o s t - K y o t o n e g o t i a t io n s .

C om m ittee o f the W h o le A t C O P 1 an d C O P 3, the C O P conven ed a so-called C om m ittee o f the W hole (C oW ) essentially con sistin g o f a h ybrid betw een a form al an d an in form al g ro u p . In the case o f C O P 3, a C oW w as conven ed u n d er C h air E stra d a (rather than the C O P P resid en t) to finalize n egotiation s on the K yoto P ro to co l on

112

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beh alf o f the CO P. Like an inform al group, it met in a m uch sm aller room than the cavernous main plenary room , often long into the night, som etim es w ithout interpretation and w ithout written record in the C O P report. L ike a form al plenary, however, it met in the presence o f N G O s and the m edia, using the traditional seating arrangem ents and form al rules for the conduct o f business, and with soun d recordings that are still kept at secretariat h eadquarters. At the plenary m eetings o f the CoW , which were held every day, the C hairs o f the various inform al grou ps were asked to report on their w ork, and delegates w ere given the opportunity to com m ent. T h e C oW plenary thus served as a critically im portant forum for stock-taking,’ and eventually becam e a highly effective forum for last resort bargaining. M ost o f the final text o f the K yoto P rotocol w as subject to final bargaining and deal-m aking in a CoW plenary, including the articles on the C D M and general com m itm ents for all p a rtie s/ which had been laboriously negotiated in inform al groups.

Inform al high-level plenary T h e organizers o f the negotiation p rocess used a very different approach for C O P 6. The session w as divided clearly into tw o, with the subsidiary bodies acting as w orking bodies o f the C O P in the first week, and a so-called inform al high-level plenary (IH L P ) convened by the President in the second week. This separation o f the C O P into two segm ents had im portant im plications for the time m anagem ent o f the session, as discussed in C h apter 12. T h e IH L P convened in the second w eek retained features o f both form al and inform al groups, but a slightly different m ix o f these to that o f the CoW discussed above. Like a C O P plenary, the IH L P w as chaired by the C O P President and with interpretation and soun d recordings. However, traditional seating arrangem ents were aband on ed. In stead, parties were asked to sit with their negotiating coalitions and were only granted two seats (a great restriction for all but the sm allest delegations). N G O s and IG O s were allow ed to attend, b ut there w as only lim ited seating for them . M oreover, the C O P President m ade it clear that he intended the inform al high-level plenary to be just that: a forum for debate am ong ministers, or at least heads o f delegation. T h is forum did not w ork well for a variety o f reasons. Firstly, there w as confusion over its nature. The term ‘inform al high-level plenary’ w as an unknown and uncertain quantity, and som e parties were genuinely con fused as to what they were exp ected to do there. The m inisterial em phasis did not help, given the differing expectation s of delegations on the role o f their m inisters (see C h apter 13). Furth erm ore, the un orth odox seating arrangem ents, although they did not raise objections, were also politically ill-advised. B ecau se the negotiating coalitions were forced to sit together, this m ade it m ore difficult for political alliances to be forged, broken and rew orked in a fluid manner. Som e m em bers o f the G -77, for exam ple, might have preferred to sit apart from the group on certain issues, but could not do so in a politically subtle manner, b ecause o f the defined seating space.

Friends gro u p At C O P 6 (part II) and C O P 7, the P residen ts initially dispen sed with an interm ediate w orking body, directly convening a sm all n um ber o f inform al

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negotiating groups, each charged with a cluster o f issues (Yamin and D cpledge, 2004). H ow ever, in the last days o f both these session s,' a lim ited m em bership ‘frie n d s’ gro u p w as con ven ed by the P resid en ts, to oversee the final negotiations, bring together the various stran ds into a single, coherent docum ent, and (at C O P 76) approve the final agreem ent before presentation to the C O P plenary. T h e outcom e o f this approach was m ixed, in line with the shortcom ings (and indeed benefits) o f friends groups, which are discussed further below.

I n f o rm al arenas: i n fo r ma l g r o u p s a n d i nfo rma l c o n s ul t a t i o n s Th e bulk o f n egotiations in the clim ate change regim e, and indeed in other intergovernm ental regim es, takes place in a variety o f inform al arenas, which are convened by plenary m eetings - o f the CO P, subsidiary b odies or other w orking body - to ad dress specific agenda item s and report back to plenary (Yamin and D ep ledge, 2004). Their main advantage is that, because they are not boun d by rules for the con duct o f business, they can serve as m ore conducive and efficient settings for negotiation. In line with established practice in intergovernm ental negotiations, delegates can explore options in inform al arenas w ithout being boun d by them , but once a deal is struck in the inform al arena, it should not be reneged upon when the deal is taken b ack to the form al plenary for adoption (see Ikle, 1964; Pruitt, 1981). Parties are thus able to talk m ore freely in inform al arenas, know ing that the risks are low er as a p roposal will not necessarily be taken as a com m itm ent and no final decisions will b e taken (Yamin and D ep ledge, 2004). As Benedick, a veteran o f the ozone negotiations, puts it, ‘the aura o f inform ality encourages posin g hypothetical questions and advancing un orth odox an sw ers’ (Benedick, 1993, p238). L an g concurs that ‘inform al proceed in gs have a m uch stron ger im pact on the final outcom e o f negotiations than m ore or less public d e b ate s’ (L an g, 1989b, p40). Inevitably, however, inform al arenas face an inherent tension between m axim izing efficiency on the one hand, and forsaking the procedural equity and transparency safeguards o f form al arenas on the other. The key to the acceptability and effectiveness o f inform al arenas therefore lies in their careful m anagem ent. A s one interviewee com m ented: if you m anage it [the convening o f inform al groups] in a very b ad way, you get com plaints. But if you m anage it in a very sm o o th . . . or discreet way, you will find that they [delegates] accept this. S o . . . the w hole thing is the m anagem ent. T h e absence o f set rules for the con duct o f b usin ess in inform al arenas opens up considerable room for im provisation in their design in order to respond to the needs o f the negotiation process. A variety o f inform al arenas have therefore been used over time, differing in their size, m andate, negotiating procedures and degree o f formality. A m ong this variety, we can identify two

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b road categories: inform al grou p s and inform al consultations. Each o f these is discussed below.

Info rm a l g r o u p s Inform al grou ps are known by a variety o f term s (Yamin and D ep ledge, 2004). ‘Contact group’ is the m ost com m on in the clim ate change regim e, and is habitually used to refer to inform al grou ps convened by the subsidiary bodies. D urin g m ajor negotiating rounds, different term s have been used. D urin g the K yoto Protocol negotiations, for exam ple, C hair E strad a chose to use the term ‘non-group’ for the inform al groups he established in 1997. This term, un preceden ted in the climate change regim e, sought to un derscore that the grou ps had no form al status, thereby respondin g to concerns o f parties that bargaining and deal-m aking should not yet com m ence (see C h apter 12). At C O P 3, however, the nam e given to these grou p s w as changed to ‘negotiating groups’ in order to em phasize that bargaining and deal-m aking w ould now begin in earnest, and sub -groups convened under the four main negotiating groups were term ed ‘contact g ro u p s’. ‘N egotiatin g g ro u p ’ w as also used to refer to the handful o f inform al grou p s convened for the finale o f the post-K yoto negotiations at C O P 6 (part II) and C O P 7, again with spin-off grou p s known as ‘contact g ro u p s’ . At C O P 6, the term ‘cluster groups’ w as em ployed, this time underlining the fact that two o f the four grou p s were dealing with a cluster of related issu es.7 T h e term 'drafting group’ is also som etim es used in the climate change regim e, where the inform al group has a specific m andate to draft a particular piece o f text. ‘ Working groups’ were convened during negotiations on the Convention itself, but the term is no longer in com m on usage in the climate change regim e, as it is considered to denote a level o f form ality on a par with a C om m ittee o f the W hole that is usually not desired for inform al groups. ‘Joint contact groups’ o f both subsidiary b odies have also been held on issues under the joint responsibility o f both the SB S T A and the SB I. This includes negotiations on the flexibility m echanism s and adverse effects during the post-K yoto negotiations, and occasionally also at other tim es on such issues as national com m unications, technology transfer and activities im plem ented jointly (A IJ). Although no set rules exist to govern inform al groups, establish ed practice has evolved in the clim ate change regim e such that, w hatever their name, inform al grou ps tend to share certain key characteristics (see also Yamin and D ep ledge, 2004). M ost importantly, inform al grou ps in the clim ate change regim e are open-ended, that is, open to participation by all parties. They are usually chaired by a delegate other than the C h air o f the convening body, with a practice having em erged since K yoto o f appointing C o-C h airs, one each from an A nnex I and a non-A nnex I party. N egotiations are conducted in Englishonly (interpretation has only been provided in exception al cases) and w orking docum ents are rarely translated. N G O s are now allow ed to attend open-ended contact group m eetings as observers (unless at least one third o f parties object), b ut the group C hair may request them to leave at any time, usually when n egotiations enter a delicate stage (see below ). Inform al grou ps are not bound by traditional U N m eetings tim es, and will often meet into the night. However,

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established practice requires that no more than two meetings (including plenary m eetings and informal groups) be held at any one time (see Chapter 7). M eetings o f informal groups are advertised in the official daily program m e of meetings and on electronic noticeboards.

Informal consultations An alternative type o f informal arena consists o f ‘informal consultations’.8 Although the distinction is not always clear, informal consultations are convened by the presiding officer (C O P President or SB S T A /SB I Chair), in contrast with informal groups, which are established by the C O P or subsidiary bodies. The presiding officer typically invites a delegate (sometimes two) to consult on a particular topic and report back to plenary, but advertised meetings are not held. The expectation, instead, is that the consulting Chair will discuss the issue at hand in private with representatives of the main negotiating coalitions and interested delegations in order to forge a consensus. An informal consultation is therefore a much m ore private process than a contact group or any other type of informal group (Yamin and D epledge, 2004). If meetings are held, N G O s will not be invited, and venues and times will not be advertised. Importantly, informal consultations are not bound by the no-more-than-two-meetings practice. In general terms, informal consultations, rather than informal groups, are convened for two contrasting reasons (Yamin and D epledge, 2004). Firstly, on more technical or procedural issues, or on those where there is limited general interest, so that a full-scale informal group is not warranted. Informal consultations, for exam ple, were convened at C O P 3 to find an alternative terminology to ‘emission b u dgets’ and, am ong many other exam ples, at SBSTA 19 on inventory issues and registry systems. Alternatively, informal consultations are som etim es convened for diametrically opposite reasons, that is, on sensitive political issues, where it is feared that a more open group negotiation might given dan gerous prom inence to the issue, or trigger unproductive confrontation. Som e o f the many exam ples that could be cited include consultations on voluntary commitments for developing countries at C O P 3, on the relationship between the climate change and ozone regim es at SBSTA 17, and on the Canadian proposal on cleaner energy and the implementation of Kyoto Protocol Article 2.3 (adverse effects), two controversial and politically (if not substantively) linked items, at SBSTA 19. Inform al consultations are similarly used where a more discreet process is appropriate, notably for elections (e.g. to the C O P Bureau or CD M Executive Board) or on issues relating to a specific country, such as Turkey’s request to be deleted from Annex I and C roatia’s special circum stances as an E IT .9 Informal consultations have been used extensively in the ‘finales’ o f the climate change regim e’s main negotiating rounds, especially post-Kyoto. In the final stages o f the political segment of C O P 6 (part II), for exam ple, four sets of informal consultations were convened under the main friends group, each ‘facilitated’10 by a delegate (in three cases, by ministers) appointed by the President. Convening informal consultations in this way (rather than an

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inform al group) provided m ore flexibility to the appoin ted facilitators, as they were under no obligation to convene an open m eeting and could conduct the process as they saw fit w ithout any procedural constraints.

The fu n c t io n s o f info rm a l are nas Inform al arenas - both inform al grou ps and inform al consultations - are used a great deal in the clim ate change regim e. T h e n um ber convened at each session varies, dependin g on the agenda and burden o f work. Betw een 12 and 2 2 " inform al arenas have been convened at each negotiating session since the latter stages o f the K yoto Protocol negotiations in 1997. D esp ite w idespread perceptions am ong interviewees to the contrary, there is no clear trend tow ards a rise in the num ber o f inform al arenas. Ju st as many inform al grou p s and consultations, 16, m et during the Ju ly sessional period in 1997 as did during S B S T A /S B I 20 in 2004. It is arguable, however, that inform al arenas are being used m ore intensively. In the above exam ple, the sam e n um ber o f inform al groups are now being convened by just two subsidiary b odies, rather than the SB ST A , SB I, A G B M and A G 13 in 1997. In addition, alm ost all inform al grou ps are now convened to develop conclusions and decisions on entire agenda item s, not just to discuss a particular tricky sub-issue, and are m eeting sooner in the session with increasingly m inim al plenary discussion.

Prom oting a b argain in g atm osphere T h e main pu rpose o f inform al arenas is to prom ote a m ore constructive bargaining atm osphere. An im portant elem ent in this is sim ply the sm aller n um ber o f delegates taking part in inform al arenas com pared with plenary m eetings. T h e num ber o f people actually present at an inform al group will vary widely depen ding on the interest in the topic. The flexibility m echanism s contact group, for exam ple, which met during the post-K yoto negotiations, w as always very well attended, with 100 or m ore delegates, w hereas less highprofile groups, such as those on m ethodological issues, tend to attract 20 or 30. In fo rm al c o n su ltatio n s will often involve just a dozen or so p arties, representing the main negotiating coalitions and other m ajor players on the issue. N egotiations in inform al grou ps are held in smaller, less overpow ering settings than the main plenary m eeting room s, w ithout prescribed seating and often without the use o f country flags (Yamin and D ep ledge, 2004). T h is helps to create a m ore intimate atm osph ere that can encourage constructive debate. Inform al grou ps, especially those that are repeatedly convened session after session, will often develop a liking for a particular setting, which they feel generates a productive dynam ic. In sm aller room s, seating may be organized in a square arrangem ent, rather than in rows, enabling face-to-face conversation w ithout m icrophon es, which can b o o st spontaneity and understan din g. Allow ing delegates to choose their own seating also encourages m ore active bargaining, as parties can sit close to allies, thus enabling them to confer im m ediately and exchange views, thereby speeding up the negotiation process. Interestingly, not all interviewees agreed on the benefits o f face-to-face

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negotiations. F or som e, this can provoke greater confrontation and face-saving behaviour, com pared with seating in rows, where inability to see the face o f the negotiating opponent can actually help parties to back down from their positions and accept com prom ises.

Specialization Establishing an informal group or informal consultation on a particular issue introduces a degree o f specialization to the negotiations, and only those parties and delegates specifically interested in the topic will participate. Parties not so interested will often be happy to be represented in the informal arena by the representative o f their negotiating coalition. This specialization allows delegates to focus their efforts on a single issue, unencum bered by the complexity o f the rest o f the negotiations, while building up a community of colleagues with particular expertise, who will get used to working together, sometimes across several sessions.

Delegation o f chairing Delegating the task of chairing helps to spread ownership for the negotiations am ong a w ider group o f individuals. A greater num ber o f delegates from a wider range of countries feel a personal and professional responsibility for bringing the negotiations (at least those they were working on) to a successful conclusion. It also makes for a m ore inclusive process, as the subsidiary body Chair or C O P President is not the only one arbitrating between the opposing views o f parties. It also frees the subsidiary body Chairs and C O P President to hold their own private talks, and think strategically about the negotiations. Som etim es, however, the subsidiary body Chair may choose to chair a contact group or informal consultation, if the issue under discussion is particularly sensitive or im portant. Chair Estrada, for exam ple, chose to chair the negotiating group on quantified emission limitation and reduction objectives (Q E L R O s) him self at C O P 3, in view of its centrality to the negotiation process. Similarly, SBSTA Chair Thorgeirsson decided to chair the contact group on the IP C C ’s TAR at SBSTA 19, given its crucial im portance in setting the agenda for the future work of the SBSTA . Being invited to chair an inform al group or to conduct inform al consultations is considered an honour, and the Chair will therefore exert every effort to reach agreement, and not have to report failure to plenary. Choosing whom to invite to chair an informal group or conduct consultations is a delicate task, and must take account o f regional balance in the nationalities of Chairs and other political considerations, as well as chairing ability. Issues relating to the appointm ent o f Chairs are discussed in more detail in Chapter 4.

English-only negotiations The conduct o f negotiations in informal arenas in English only inevitably places non-Anglophone nations at a disadvantage, especially less wellresourced delegations that do not com prise individuals with language training. The greater spontaneity and quicker pace of informal negotiations redoubles this disadvantage. As Kaufmann explains, ‘while the language advantage or

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disadvan tage is not so serious for statem ents prepared at le isu re . . . it can becom e acute when an im prom ptu intervention suddenly b ecom es necessary, and a delegate may be gropin g for the right w o rd s’ (K aufm ann, 1989, p l7 5 ). Inform al grou p s have som etim es been provided with interpretation on an exceptional basis. A case o f this occurred at C O P 6 (part II), where, at the request o f a sm all n um ber o f developing countries, a lim ited n um ber of interpretation slots w as provided for the negotiating groups. T h ese slots were taken up especially by the negotiating group on finance, an issue o f particular concern to developing countries, illustrating the fact that developing countries are especially affected by the absence o f interpretation. Interestingly, however, som e negotiating group C hairs, notably the negotiating group on com pliance, declined to use the interpretation offered to them, claim ing that it w ould actually slow down negotiations. T h e question o f language is a perpetual problem in intergovernm ental forum s. It is im possible to provide interpretation for every single m eeting and, even if such interpretation were provided, the fact is that negotiations w ould alm ost certainly still take place in a single language. In a context w here finding the precise w ord is param ount, highly technical and novel term s are being discussed, and spon tan eous interactions are necessary, negotiation in m ore than one language is sim ply im practical. The crux o f the problem thus lies m ore in the pervasive global im balance o f wealth and resources than in a fun dam en tal flaw in the organization o f negotiations. L arge r or better resourced non-A nglophone delegations with training in English, m ore tim e to devote to the negotiation p rocess and the capacity to translate docum ents into their own language are not as h an dicapp ed as the poo rer countries with sm aller delegations, such as Fran coph on e Africans. A Chinese interviewee explained: ‘for a big delegation like China, it [the lack o f interpretation] w as absolutely no problem . . . everybody w orks in English n o w ... those technical term s, they are hard to translate, you can ’t use the Chinese version’. M onolingual negotiations pose prob lem s even for som e large delegations, however, including that o f the Russian Federation. The linguistic isolation felt by the Russian Federation is believed to have stoked the sense o f neglect that contributed to its insistence on a generous em ission target in the Kyoto P rotocol, and later to its dem ands to renegotiate its allocated sink credits u nder the Bonn A greem ents, and even, perh aps, to its prevarication on ratifying the K yoto Protocol (see also C h apters 7 and 11). M oreover, for many countries, the provision o f interpretation and opposition to English-only negotiations is a m atter o f principle, which in turn raises opportunities for procedural obstruction. M anaging such language issues is thus an im portant task for the organizers o f the negotiation process, despite the im plicit acceptance o f the inevitability o f English m onolingualism in the final stages of a negotiating round.

Scheduling H o ld in g parallel m eetings o f inform al grou ps intensifies the use o f time, enabling negotiations to advance sim ultaneously on different fronts. The establish ed practice, however, o f holding no m ore than two m eetings at any

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one time, including plenary and inform al group m eetings, serves as a safeguard to uph old procedural equity and transparency for sm all delegations. Although this practice w as prevalent before Kyoto, it ap pears that it was only applied to the four b odies in operation at that time - SB S T A , SB I, A G B M and A G 13 separately, rather than in com bination. The daily program m e for the two-week sessional period in Ju ly 1997, for exam ple, reveals many instances o f three, som etim es four, inform al groups o f the various b od ies m eeting at any one time. D elegates, however, especially from developing countries, have sought the application o f this rule m ore zealously in the post-K yoto era and, crucially, across both subsidiary bodies together. T h e need to fit m ore and m ore inform al groups into just two parallel slots has gradually expan ded m eeting hours later into the night, and also squeezed the traditional three-hour m eeting slot into just two or even one and a h alf hours (Yamin and D ep ledge, 2004). The secretariat drafts the schedule for inform al grou p m eetings, and in doing so, m ust ensure that all grou p s receive equitable treatm ent. T h e subsidiary body C hairs or, at C O P sessions, the C O P Bureau, will approve the schedule of inform al group m eetings. The fact that inform al consultations bypass the no-m ore-than-tw o-m eetings practice that covers inform al grou p s further intensifies the use o f time. T h is is crucial to m anaging the com plexity o f the clim ate change negotiations. It w ould be logistically im possible to resolve the full spectrum o f issues on the agen das of the clim ate change b odies with only two groups m eeting in parallel. W here the schedule has been particularly tight, inform al consultations have som etim es been convened rather than inform al groups, in order to avoid the constraints im posed by the no-m ore-than-tw o-m eetings practice.

Participation o f N G O s A feature o f inform al arenas that has changed over time is the treatm ent of N G O s. P rior to C O P 4, there were no rules specifying w hether or not N G O s w ere allow ed to observe, or indeed speak at, inform al group m eetings, leaving this entirely to the discretion o f the C hair o f the convening subsidiary body or the Chair o f the inform al group. This led to con siderable variation in the practices o f inform al groups. T h e SB S T A , for exam ple, ad opted a m ore open practice, with N G O s usually perm itted to observe contact groups. Chair E strad a, however, took a stricter line in the A G B M , barring N G O s from the non-groups convened in 1997. T h e rather ad hoc and un predictable treatm ent o f N G O s was rem edied at C O P 4 by decision 18/CP.4 on attendance of intergovernm ental and non-governm ental organizations at contact groups. T h is decision establishes that the convening body should invite IG O s and N G O s ‘to attend as observers any open-ended contact g ro u p ’ , unless at least one third o f the parties object at the tim e o f its establishm ent. C hairs o f contact grou p s, however, retain the right to close the group to IG O s and N G O s at any time. Participation by N G O s is discussed in m ore detail in C h apter 14.

Obstacles for sm aller delegations Although the convening o f m ultiple inform al grou p s and consultations has advantages for the efficiency o f the p rocess, it inevitably has a detrim ental

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c ffc c t on p r o c e d u ra l e q u ity an d tran sp aren cy . S m a ll, e sp e c ia lly nonA n g lop h on e, d elegation s - m ostly from d evelopin g coun tries and E IT s - often lack the re so u rc e s to sen d rep resen tatives to the g ro u p s o f greatest in terest to them , o r to k eep track o f the m any th read s o f the negotiation . M oreover, while larger delegation s can ap p o in t sp ecialists to differen t su b -gro u p s, thus taking ad van tage o f the b ro a d specialization n oted ab ove, this is usually im p o ssib le for sm all delegation s. T akin g the e x am p le o f the K yoto P ro to co l n egotiation s, on e interview ee recalled, ‘m any delegates w ere not involved in sm all g ro u p s, they w ere left out, they w ere left not know in g w hat w as go in g o n ’. A n oth er interview ee noted, ‘m any sm aller delegation s could n ot atten d all the parallel in form al grou p m e e tin g s. . . so they say, “ W ell, w e d id n ’t p articip ate fully in this g r o u p ” , so w hatever ou tp u ts you get from that g ro u p is view ed with som e su sp ic io n ’ . F o r an oth er interview ee, the con ven ing o f sm aller g ro u p s co n trib u ted to the dom in ation o f the larger, m ore p ow erfu l d elegation s over the w hole K yoto P ro to co l n egotiation p ro ce ss: A s the issu e s d e v e lo p e d , th ere w ere sm alle r n e g o tiatin g g ro u p s ... and as the g ro u p s go t s m a lle r ... then we started to lose out on p articip ation an d ... it just m ad e it easier for coun tries w ho w anted to m inim ize the o u t c o m e s ... I gu ess the U S is the classic e xam p le ... they w ere involved right to the end in the sm aller and sm aller grou ps. P o st K y oto , sm aller delegation s have b eco m e m ore efficient at easin g the prob lem o f m ultiple in form al aren as by w ork in g through their negotiatin g coalitions. T h e G -7 7 , for e xam p le , a p p o in ts co o rd in ato rs for m ost issu es (a p ractice that started in the latter stages o f the K yoto P ro to co l n egotiation s), w ho n egotiate on the b asis o f a m an d ate from the G r o u p an d rep ort b ac k to it. Such self-help by p arties is critical to en abling a b road er, if not deeper, p articipation on a greater n u m b er o f issu es in the n egotiation s. H ow ever, by cedin g n egotiatin g pow er to a gro u p representative, it is in evitable that, for all but the m ost pow erfu l states, individual n ation al p referen ces can n ot be argued as strongly.

P o tentia l f o r i n c o h e re n c e a n d in c o n s is t e n c y T h e sp e c ia liz a tio n o f the n e g o tia tio n s can re su lt in in c o h e re n ce an d in con sisten cy in the final ou tcom es, as even the p resid in g o fficers and secretariat find it difficult to k eep ab rea st o f developm en ts in the various g ro u p s and m aintain a b ig p ictu re view o f the p ro ce ss. T h is situation during the K y o to P ro to c o l n ego tiatio n s co n trib u te d to som e in coh eren ce and in con sisten cy in the P ro to co l tex t, w hich n egotiators have h ad to con tend with in the p ost-K y o to n egotiation s. A cco rd in g to Yam in: ...m a n y elem ents ... to o k sh ap e in the sm all h ours in ‘inform al in fo rm als’ in m any differen t ro o m s, often m eeting sim ultaneously,

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so that few o u tsid e the larger delegation s cou ld follow the entirety o f the n egotiation s. T h ese f a c t o r s ... go so m e way to explain in g the ... idiosyn crasies o f the text (Yam in, 1998, p p l 15—116). T h is im pression w as ech o ed by interview ee re sp o n ses. O n e, fo r e x am p le noted: A lot o f n egotiation s have been don e in depen den tly in sm all g r o u p s w h ere m a cro p ic tu re s w ere n ot ab le to b e con ceived ... today m any p e o p le com e and tell you ‘W hy sh ould you levy [a sh are o f the p ro c e e d s of] the C D M [to h elp vuln erab le develop in g coun tries ad ap t to clim ate ch an ge] an d not other m e c h a n ism s?’ ... sim ply b e ca u se everyone w as in sm aller gro u p s. T h e p rob lem o f in coheren ce an d in consistency w as con sid erab ly m ore acute in the p o st-K y o to n ego tiatio n s, given the m ore d isag g re g ate d in stitution al stru ctu re w ithout a single b o d y (such as the A G B M ) to oversee the w hole p ro ce ss. In form al g ro u p s an d con sultation s w ere u sed m ore intensively, and there w ere stro n g links betw een issu es. F o r exam p le, the con tact gro u p on L U L U C F w as devising rules for in clu ding L U L U C F p ro jects un der the sco p e o f the K y oto P ro to co l, w hile the con tact gro u p on the flexibility m ech an ism s h ad respo n sib ility for n egotiatin g the treatm ent o f L U L U C F projects u n d er the C D M . T h e com p lian ce and flexibility m ech an ism s g ro u p s also h ad im portan t c ross-cuttin g issu es relating to eligibility to p articip ate in the flexibility m ech an ism s, and redress for any lap se s in eligibility. In con sisten cy betw een the in fo rm al g ro u p o u tp u ts that c o m p r ise d the B on n A g re e m e n ts led to co n sid erab le p ro b lem s in the m ore technical n egotiation s on detailed texts at C O P 7. O n e im portan t inconsisten cy con cern ed the treatm ent o f L U L U C F p rojects in the C D M . Such in con sisten cies w ere form ally n oted in the C O P 6 (part II) report, an d the secretariat w as fo rced to issu e an inventory o f them (see C O P 6 (part II) rep ort, p art I, p a ra g ra p h s 4 7 -4 9 ). T h e secretariat and p resid in g o fficers have sough t to ad d re ss the d an gers o f incon sisten cy in the n egotiation p ro c e ss in variou s w ays. O n e im portan t m eans h as been through the ‘c lu ste rin g’ o f issu es into single con tact g ro u p s. A g o o d exam p le here is the contact gro u p on the flexibility m ech an ism s, which dealt with em ission s trad in g, J I and the C D M throu gh ou t the post-K yo to n egotiation s. W hile m akin g for a very heavy agen d a fo r the con tact g ro u p , this clusterin g w as h elp fu l in en surin g a d egree o f con sisten cy throu gh ou t the rules for the flexibility m ech an ism s, w hile red u cin g tran saction costs involved in d esign in g sep arate p rovisio n s for each m ech an ism .12 All three flexibility m e ch a n ism s sh a re co m m o n p r in c ip le s an d b a s ic eligib ility ru le s fo r p articip ation , w hile the two pro ject b ase d m ech an ism s - the C D M and J I - also share m any sim ilar rules regardin g the pro ject cycle an d the fu n ction in g o f their resp ectiv e b o d ie s (E x e c u tiv e B o a rd an d Su p erv iso ry C o m m itte e ). A n o th er m ean s w as through the occasio n al convening o f joint m eetings o f related con tact gro u p s. T h e L U L U C F an d flexibility m ech an ism s con tact g ro u p s, for exam p le, held a joint ‘sp ecial se ssio n ’ at S B S T A /S B I 13 ju st p rio r to C O P 6.

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A further way in which the organizers o f the negotiation process have sought to facilitate coherence is by inviting all the C hairs o f inform al groups and inform al consultations to private coordination m eetings with the subsidiary body C hairs (or C O P P resident, if relevant). C h air E strad a, for exam ple, convened regular m eetings o f the inform al group C hairs from A G B M 7 onw ards. T h ese m eetings proved to be im portant in ad dressin g problem s relating to coherence and integration. F or exam ple, at A G B M 8 in late 1997, confusion arose over which non-group had responsibility for the issue o f review o f im plem entation, with the result that two non-groups had started to take up the issue in different ways. T h e coordination m eetings were able to clarify which non-group should have responsibility for the issue. T h is strategy o f convening coordination m eetings o f inform al group C hairs continued in the post-K yoto process where, especially during the finales o f C O P 6, C O P 6 (part II) and C O P 7, such m eetings were held on a daily, even twice daily, basis. A nother related m eans is self help by the secretariat and parties. The secretariat had an active coordination team in place during the post-K yoto negotiations to try to ensure coherence and consistency betw een negotiations on the various related issues, alerting presiding officers and senior secretariat staff to potential problem s. Similarly, all negotiating coalitions and m ost large delegations w ere usually represented in the inform al arenas on all issues, albeit by different individuals, and com m unication within delegations and coalitions could therefore help ensure that coherence prob lem s were spotted. Such strategies w ere absolutely crucial in avoiding many pitfalls of inconsistency. T h e problem s that did creep into the texts can be largely attributed to the pace and late hour o f the final negotiations, especially at C O P 6 (part II).,S

Friends g r o u p s a nd shuttle d i p l o m a c y Friends g r o u p s In addition to the negotiating arenas explored above that are open to all parties, presidin g officers have som etim es invited a lim ited n um ber o f parties to a series o f private m eetings aim ed at advancing the negotiation process (Yamin and D ep ledge, 2004). Such groups, referred to generically here as ‘friends o f the P resid en t’ or ‘friends o f the C h air’ , are m ost often convened by the C O P Presiden t in the final stages o f a negotiating round. They have also occasionally been convened at the initiative o f the subsidiary body Chairs. Key friends groups held in the clim ate change negotiations from 1996-2003 and their main characteristics are sum m arized in Table 9.3 below. T h e convening o f such frien ds g ro u p s by the p residin g officer is com m onplace in m ultilateral n egotiation s.14 L ike inform al arenas, there are no set rules govern in g their con d u ct, o pen in g up c o n sid erab le room for im provisation on the part o f the presiding officer as to w hat kind o f group s/h e wishes to convene (if at all) and how to use it (Yamin and D ep ledge, 2004). Frien ds grou p s may be convened inter-sessionally to prepare for the upcom ing session as well as during negotiating session s, while the convening presiding

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officer may choose to delegate the chairing o f the group to a colleague or colleagues (e.g. see cases at C O P 2 and C O P 7 in Table 9.3). The distinguishing characteristic of all friends grou p s, however, is that they are lim ited membership bodies; that is, only invited delegates are perm itted to attend, to the extent that security guards may be placed at the door to deter uninvited individuals. The size o f the invitation list has varied considerably from group to group, from attendance by around 15 individuals (the A G B M E xpan ded Bureau) to over 60 (friends at C O P 6, C O P 6 (part II) and C O P 7). The point, however, is that friends groups seek explicitly to exclude the majority of delegates, in order to increase the efficiency of decision-making in the final stages o f difficult and sensitive political negotiations. As one interviewee put it, ‘big decisions mean small gro u p s’. The major exception to this was the openended informal high-level consultations convened in the N etherlands in the run up to C O P 6 (part II), where participation was open to all parties. This was an extremely innovative gathering, as discussed in Box 9.2 below. In the interests o f promoting efficiency, friends groups are subject to even fewer procedural equity and transparency safeguards than the informal arenas discussed above. Negotiations always take place in English only. It is indeed partly for this reason that the Arabic and French speaking C O P 7 President El Yazghi chose to appoint English-speaking ministerial ‘co-facilitators’ to lead the C O P 7 friends group on his behalf. The conduct of business is entirely at the discretion of the Chair, and meetings may be held anywhere, at anytime, and at a moment’s notice. N G O s are not permitted to attend, and meetings are rarely openly advertised (Yamin and D epledge, 2004). Friends groups have been known by many different names in the climate change process (see Table 9.3 below), reflecting the uniqueness of each group and its composition, along with the controversy that inevitably surrounds meetings to which not all parties are invited. Indeed, the term friends itself has usually been rejected, because the implication could be that other parties are not the friends of the Chair or President. N am es implying that the group could have any kind of formal standing must also be avoided. M ost commonly, friends groups have been known by the name ‘E xpanded Bureau’ (Yamin and D epledge, 2004), where the composition o f the group has been founded on the C O P Bureau membership, drawing on the legitimacy of the Bureau as a formally elected group (on composition, see below). Alternatively, the name of the meeting place for the group has been used, such as the ‘Muiden group’ prior to and at C O P 6, or the ‘Fez 1 group’ at C O P 7. Even the AG BM Expanded Bureau was known for a short while as the ‘Trattoria group’, as it first met for dinner in an Italian restaurant. The case of C O P 6 (part II) is interesting. Here, given lingering unhappiness over the failed friends group at C O P 6, any name was deemed inflammatory, so that the group was simply called ‘The G ro u p ’. The fundamental aim behind the convening of friends groups is to increase the efficiency of the negotiation process. The reasoning is that, because fewer people are present, the process will be simpler and more efficient, and it will be easier to reach an agreement. Linked to this is the assumption that delegates will talk more freely and frankly in a small, closed, intimate setting than they otherwise

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w ould in a m ore open forum . The price to pay for such apparent im provem ents in efficiency is, o f course, an erosion o f transparency and procedural equity, as parties cannot participate as actively in the negotiation process, observers are excluded, and no official records are kept o f proceedings. The presidin g officers and secretariat often go to considerable lengths to create an inspirational setting and sense o f occasion that will be conducive to constructive talks. At C O P 6, for exam ple, the D utch Presidency convened the second m eeting o f the ‘M uiden G r o u p ’ in the historic Riversaal, a room im bued with political significance for the D utch people. At C O P 3, steps were also taken to instil a sense o f occasion, responsibility and urgency am ong participan ts in the ‘M inisterial G r o u p ’. A fter the first m eeting where debates had been disturbed by delegates m oving in and out o f the room , C h air E strad a requested the doors to be kept shut with U N security outside. P articipan ts were discouraged from leaving the room and no one w as allow ed in.

C o m p o s it io n The com position o f friends groups in the climate change regime and the method for selecting participants has evolved over time. D uring the Kyoto Protocol negotiations, the convening President or Chair simply drew up a list o f invited parties, which, o f course, had to be carefully m anaged so as to minimize contro­ versy. O ne m eans of doing this, used by Chair E strada during the A G B M process, was to base the invitation list on the m em bership o f the C O P (and also the A G B M ) Bureaux - hence the name, E xpan d ed Bureau. The remaining invitees - the ‘expansion ’ - were representatives o f key negotiating coalitions not covered by the Bureau structure (e.g. G-77 Chair, E U President), and key players identified by the organizers by virtue o f their strong positions and leverage pow er (e.g. China, India, U S), or the personal influence o f individual delegates (e.g. Antigua and Barbuda). Although the E xpan d ed Bureau was widely accepted in the A G B M , there were still protests from som e parties excluded from the meetings. The practice of using an ‘expanded B ureau’ - C O P Bureau m em bership plus ‘key parties’ - has persisted in the climate change regime, and has been used to structure m ost friends groups convened for consultation purposes (on functions, see below). In the post-K yoto period, it has becom e less acceptable for a convening Chair or President to draw up an invitation list o f parties on a ‘top dow n ’ basis, especially for friends groups used as bargaining arenas (see below ). Instead, the trend has veered tow ards a m ore ‘bottom u p ’ p rocess, that is, with invitations exten ded to the negotiating coalitions, and the coalitions them selves selecting their participants. It is necessary, however, to set a quota o f seats for each negotiating coalition; the alternative is inevitably a very over-crow ded room and an inefficient process, as h appened at the C O P 6 friends group. At C O P 6 (part II), agreem ent w as reached on an allocation o f seats for each negotiating coalition, which w as subsequen tly applied without question to structure the ‘Fez 1 G r o u p ’ at C O P 7 (see C O P 6 (part II) report, part I, paragraph 33). E stablishing a quota o f seats, then allowing coalitions to identify their own representatives, has the advantage o f being a m ore dem ocratic and open process, disposin g o f the responsibility for deciding on representation to the

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B o x 9.2 M a k i n g up f o r th e fa ilu r e o f CO P 6: The o p e n - e n d e d i n f o r m a l h ig h - le v e l c o n s u lt a t i o n s in S c h e v e n in g e n , th e N e t h e r la n d s , June 2001 The friends g r o u p that met for tw o days betw een C O P 6 and C O P 6 (part II) in Scheven inge n, the N ethe rland s was, and remains, un preceden ted in the climate ch a n g e regime. A n o p e n invitation w as issued to all parties, with f u n d i n g provided to eligible parties in the same w a y as for the form al n e g o tia tin g sessions, th a n k s to financial su p p o r t from the Dutch g o v ernm en t. So m e

350 delegates re presenting

130 parties attended,

inclu ding

many

ministers. Observers, however, were not admitted. The aim of the m eeting w a s tw o-fold. Firstly, COP 6 President Pronk w a n te d to present his 'co nso lid ated ne go tia tin g text', released a fo rtn igh t before, and elicit the views of parties on w h e th e r it could provide a basis for reaching a g r e e m e n t at COP 6 (part II). Secondly, President Pronk wished to consult on the o rg a n iz a t io n of w o rk at C O P 6 (part II), to avoid the to rtuo u s deb ate on process that had so crippled COP 6. In this sense, the Sch even inge n m eeting appe ared to represent an a ttem pt to atone for the perceived mistakes of COP 6. H aving been accused of releasing a com plex text to o late at COP 6 (see C ha pter 11), President Pronk n o w s o u g h t to consult on his new text before the n e g o tia tin g session. In response to ch arges of errors of ju d g e m e n t and hesitation in his o rg a n iz a t io n a l decisions at C O P 6, President Pronk

now

s o u g h t to consult on these prior to C O P 6 (part II). M o s t

importantly, President Pronk w a n te d the Sch e ve n in ge n m eeting to be open to all parties, so he could not be accused of lack of transparency and could justify the decisions that he later took. The m eeting w a s certainly useful, not just in ad v an cin g its explicit aims discussed above, but also in p ro viding an o p p o rt u n it y for delegates, m ost of w h o m had last seen each other on the disastrous last n ig h t of C O P 6, to meet up, exc h an ge views and rebuild relationships. It w a s also the first o p p o rt u n it y for a w id e g r o u p of parties to meet fo llo w in g the repudiation of the Kyoto Protocol by the US. Importantly, the schedule included m eetin gs of the various n e g o tia tin g coalitions, a lo n g with a preparatory m eeting of the G-77 on the eve of the consultation. A l t h o u g h the Sch e ve n in ge n consultations did not lead to, or provide any indication of, constructive ch an ge s in position, the fact that parties b e g a n serious w o rk imm ediately on the first day of C O P 6 (part II) is due in no small part to the confidence b u ild in g that e m e r g e d from that meeting.

coalition C h a irs (Y am in an d D e p le d g e , 2 0 0 4 ). It is, o f c o u rse , e asie r fo r so m e c o alitio n s than o th e rs to c h o o se th eir rep resen ta tiv e s. It is stra ig h tfo rw a rd , fo r e x a m p le , fo r the E U , given its very c o h esiv e p o sitio n an d fo rm al ro tatio n o f the P resid en cy . T h e G - 7 7 , how ever, m u st c o v er a very larg e sp e c tru m o f view s; the sig h t o f the Iran ian d e le g a te - Iran h eld th e G -7 7 C h air - b e in g m o b b e d by G 77 m e m b e rs tryin g to o b tain on e o f the 19 b a d g e s th at he w as d istrib u tin g fo r a c c e ss to the frie n d s g ro u p w as o n e o f the en d u rin g sce n e s o f C O P 6 (p a rt I I ) .15

Table 9.3 Key friends groups convened under the COP or AGBM in the climate change regime up to the adoption o f the Marrakesh accords Se ssio n

Nam e

Function

C om p osition

Chair

COP 2

Friends of the President

Bargaining on declaration

Invitation list of key Parties

Minister Marchi (Canada)

A G B M 6-8

Expanded Bureau

Consult on process, some substance Bureau + invited Parties

A G B M Chair Estrada

COP 3

Group of 10 (throughout) Informal consultation (only one meeting) Ministerial Group (last 3 days)

Share information Bargaining

Bureau + invited Parties Invited Parties

CoW Chair Estrada COP 3 President Ohki

Bargaining

Bureau + invited Parties

CoW Chair Estrada

COP 4

Friends of the President (last 2 days)

Bargaining

Bureau + invited Parties

COP 4 President Alsogaray

COP 5 - C O P 6 inter-sessional

Informal high-level consultations (April 2000, New York) Informal high-level consultations (June 2000, Warsaw) Informal high-level consultations M uiden group (Oct 2000, Muiden, Netherlands)

Consult on preparations for COP 6

Bureau + invited Parties

COP 5 President Syzsko

Consult on preparations for COP 6

Bureau + invited Parties

COP 5 President Syzsko

Consult on substance, based on non-paper by COP 6 President

Bureau + invited Parties

COP 5 President Syzsko/ COP 6 President Pronk

COP 6

M uiden group (middle Sunday) Frans Hals group (last day)

Consult on substance Bargaining

Bureau + invited Parties Loose invitation to coalitions

COP 6 President Pronk COP 6 President Pronk

COP 6 - C O P 6 (part II) intersessional

Informal high-level consultations (April 2001, New York) Open-ended Informal high-level consultations (see Box 9.2) (June 2001, Scheveningen)

Consult on non-paper 'new proposals by the President'

Bureau + invited Parties

COP 6 President Pronk

Consult on: 'Consolidated negotiating text'; process at COP 6 (part II)

Open-ended. 350 delegates from 130 Parties attended

COP 6 President Pronk

Extended Bureau (first days) The group (last 3 days of political talks) Compliance group (last few hours)

Consult on process Bargaining

Disputed quotas for coalitions Agreed quotas for coalitions

COP 6 President Pronk COP 6 President Pronk

Bargaining

Loose invitation to coalitions, very small room

COP 6 President Pronk

Fez 1 group (last 3 days)

Bargaining

Agreed quotas for coalitions

Ministers M oosa (South Africa), Roch (Switzerland)

COP 6 (part II)

COP 7

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Structuring participation in a friends group around negotiating coalitions can, however, have the undesired effect o f actually hardening and perpetuating coalition positions (Yamin and D ep ledge, 2004). It inherently introduces a m ore adversarial m ode o f debate by explicitly pitting coalitions against each other, while constraining m ore fluid interaction and alliance building between m em bers o f various coalitions. The L D C s, for exam ple, or A O S IS , could not speak on their own b eh alf at the negotiating table w ithout the danger of appearin g to diverge from the G -77 position, som ething that w ould be very politically difficult for them to do. C oncern s at exclusion can be ad dressed to som e extent by providing seats for other parties to observe proceedings, enabling them to speak directly with their representative at the table if necessary. Such provisions were m ade at C O P 6 (part II) and C O P 7, where the m edium -sized room accom m odated 50 or so observers. It also proved helpful to allow rotation betw een repre­ sentatives at the negotiating table at any time. F o r large grou ps like the G -77, this is im portant in enabling input by experts on their specific issue. A s with inform al arenas discussed above, an im portant m eans o f countering the sense o f exclusion felt by the bulk o f parties not present at the friends group, along with N G O s , can b e to m ake regular reports to a plenary meeting.

Functions o f friends gro up s The various friends grou p s convened in the clim ate change regim e have had two main functions: consultation or bargaining (Yamin and D ep ledge, 2004).

Consultation forums Frien ds grou ps establish ed as consultation forum s essentially serve as ‘focus g ro u p s’; that is, the President (or Chair) has access to representatives o f the main negotiating coalitions, and can thus canvass their views or advice on procedural and substantive issues. B ecau se m eetings are held in private and behind closed doors, the expectation is that participants will be candid and forthcom ing in the advice given to the President, faithfully relaying the views o f their negotiating coalition and putting forw ard constructive suggestions. This function, o f course, is sim ilar to that o f the official C O P B ureau (see C h apter 5). Friends grou p s, however, are larger and m ore representative o f the su b stan tive negotiating coalitio n s, and are therefore m ore effective as consultation forum s than the C O P Bureau itself. Convening a friends group as a consultation forum prior to each C O P session has now becom e alm ost an establish ed practice in the clim ate change regim e. T h is dates b ack to C O P 5, where the C O P President received an explicit request through decision 1/CP.5 ‘to take all necessary steps to intensify the negotiating p ro c e ss’ in preparation for C O P 6, with the assistance o f the C O P B ureau (see also C h apter 12).16 Two E x p an d ed B ureau m eetings were thus hosted by the Polish C O P 5 Presidency, follow ed by the ‘M uiden G r o u p ’ m eeting hosted by the D utch President designate o f C O P 6. Frien ds grou p s convened as consultation forum s tend to have two main p u rposes. Firstly, they can serve as useful forum s for the President to consult on process an d procedural m atters, that is, to seek advice on plans for the

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organization o f negotiations. D uring the K yoto P rotocol negotiations, Chair E strad a regularly used m eetings o f the A G B M E x p an d ed B ureau to test out his intentions for the negotiation p rocess, for exam ple, w hether parties w ould be prepared to give him a m andate to prepare a C h air’s text. Similarly, at C O P 6 (part II), President Pronk convened an E x p an d ed B ureau specifically to advise on the negotiation process. A lthough it m et only twice, this body was im portant in sanctioning the docum ent on which m inisters w ould negotiate, as well as endorsing the launch o f another friends group, this time with a bargaining m andate. Secondly, friends grou ps can be used to exchange views on substantive options in the negotiation p rocess, albeit with a clear understanding that no negotiation will take place. T h is, for exam ple, w as the intent behind the ‘M uiden g ro u p ’ o f m inisters that met twice, im m ediately prior to and then during C O P 6. At both m eetings, President Pron k presented a ‘n on -paper’ setting out issues and options in the negotiation process (see Table 11.4). H e did so to provoke debate aim ed at generating a better m utual understanding am ong parties o f one anoth er’s concerns, along with hints at the viability of different potential solutions. Similarly, the A G B M E x p an d ed B ureau m eetings, especially those held inter-sessionally, were used to provoke m ore uninhibited substantive debate, with parties taking advantage o f the opportunity to explain their preferences and the rationale behind these m ore fully, even if they did not m ove from their positions. Frank exch anges in friends grou p s are also useful to the organizers o f the negotiation process. A secretariat interviewee noted: H earin g w hat people said helped us to find the com prom ise language to bring parties to agreem ent. T h e opportunity to hear delegations in the inform als m eant that we could do this better. It gave us advice to craft a text. We d o n ’t have such interchange in big m eetings.

Bargaining forums Frien ds grou p s used as bargaining forum s are inherently m ore controversial, as few parties are h appy to relinquish their right to participate fully in actual b argain in g. W here frien ds gro u p s have been convened for bargain in g p u rposes, this has always been in the very final stages o f a m ajor negotiation round, in order to bring the various strands o f the negotiations into one forum and strike a final deal. Frien ds grou p s in the clim ate change regim e convened as bargaining forum s have enjoyed lim ited success. T h e friends group at C O P 6 fam ously catapulted the session into breakdow n. Although C O P 3, C O P 6 (part II) and C O P 7 were all successful, their respective bargaining friends grou p s were largely sidelined as the real bargaining am ong pow erful parties shifted to other, even m ore inform al and sm aller settings. At C O P 7, for exam ple, the ‘Fez 1 G r o u p ’ developed purely into a forum for the co-facilitators to present p roposals and a few hours later - hear responses from each o f the coalitions. T h e ‘Fez 1 G r o u p ’ w as therefore useful, in that it took charge o f the final process, brough t all

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rem aining stran ds within one setting, accelerated the pace o f negotiations and placed pressure on recalcitrant parties to com prom ise, but it did not serve as an actual bargaining or deal-m aking forum . The situation w as sim ilar at C O P 6 (part II), where ‘T h e G r o u p ’ proved useful as a m ore open forum for presenting the P resid en t’s com prom ise p roposal - the ‘C ore E lem en ts’ p ap er - and taking collective stock o f progress in ‘shuttle diplom acy’ and unofficial negotiations, but no b argain in g actually took place therein. In this case, the President tried to en courage frank exchanges am ong parties, but these were little m ore productive than in other arenas, prom pting him to convene spin -off inform al consultations, and finally, a round o f ‘shuttle diplom acy’. Bargaining and successful deal m aking did take place in the bargaining friends grou p s at C O P 2 and C O P 4, but both w ere later derided for lack of transparency and inclusiveness. T h e rather secretive and shadow y nature o f the friends group that led to the G eneva M inisterial D eclaration at C O P 2, for exam ple, contributed to the objections that prevented the D eclaration ’s adoption (see C O P 2 report, part I, annex, statem ent by Saudi A rabia ). Similarly, at C O P 4, Sw itzerland registered a form al protest ‘at the exclusion of many countries from the inform al ministerial consultations convened by the P resid en t’ that reached agreem ent on the decisions m aking up the BA PA (see C O P 4 report, part I, paragraph 78). The ‘C om plian ce G r o u p ’ at C O P 6 (part II) w as perhaps the m ost successful friends group in actually striking a deal that was widely accepted as legitim ate. T h is group is unusual am ong friends groups, however, in that it was convened to negotiate only one issue, and only in the final h ours o f negotiation; strictly speaking, it w as m ore o f an inform al consultation than a friends group. M oreover, its w ork w as not universally w elcom ed; the chief R ussian negotiator w as m om entarily ‘conveniently’ absent (Lefeber, 2001, p31) when the deal was struck, and subsequently objected to agreem ent having been reached in English only. This contributed to Russian hostility to the em erging Bonn Agreem ents, which prevented their swift adoption (see also C h apter 7).

Pro b le m s w ith frie n d s g r o u p s T h ere are several reasons for the relative ineffectiveness o f friends grou ps in bargaining in the climate change regim e. Firstly, the w ide diversity o f interests relative to clim ate change am ong different countries, and the fact that this diversity o f interests shifts dependin g on the specific issue at hand (e.g. L U L U C F , financial assistance), m akes it difficult for negotiations to be conducted through a coalition, which m ust pool positions. Only the E U can really negotiate with one voice. The fact that each person at the negotiating table represents a larger negotiating coalition, while reducing the actual n um ber o f participan ts, therefore im pinges on that p e rso n ’s ability to make deals or react to developm ents. E ach time a new p roposal is presented, or another coalition alters its position, representatives at the negotiating table will have to consult with their constituent coalition b efore responding. The process can therefore be laborious, as the negotiating coalitions need to m eet at each stage before the negotiation can proceed. Interestingly, it w as when President

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Pronk felt bold enough to ask individual parties - rather than coalitions sitting at the table o f the ‘C om plian ce G r o u p ’ on the last night o f C O P 6 (part II) w hether they agreed with the em erging text that he w as able to forge a consensus (see L efeber, 2001). Frien ds grou p s can also fall in betw een two stools. T h at is, they are too small and secretive to be legitim ate and fully representative, yet too large and transparent for m eaningful negotiation to take place. T h e exchange of com prom ises and concessions, with both overt prom ises and subtle unspoken understandings, is som ething that sim ply cannot be don e in a room where such a diverse group o f political adversaries and allies is present (Yamin and D ep ledge, 2004). Friends grou ps also suffer from the m ix in participation betw een m inisters and officials, w hose differences in approach can m ake negotiations aw kward and un productive (see also C h apter 13). Fundam entally, the dilem m a lies in the inherent difficulty o f limiting participation in a bargaining situation. D elegations, even those that do not participate very actively in open arenas, un derstan dably object to being explicitly excluded, not least b ecause it looks bad for them to have to report to their capitals that they were not present in the key bargaining arena. M oreover, delegations that are not present will not necessarily trust their representative in the friends group to bargain effectively on their behalf and uphold their interests. The transaction costs involved in actually setting up a bargaining friends group can therefore be considerable, and even outweigh the efficiency benefits o f the m ore lim ited participation. At C O P 6, for exam ple, President P ron k spen t m uch o f the first week trying to persu ade delegations to accept his p rop osal that the final negotiations in the second w eek w ould be conducted in four lim ited participation groups. This m et with such opposition , especially from the G -77, that the plans were shelved, but not b efore valuable time had been w asted. T h ere are exam ples in other regim es where friends grou p s have been m ore effective. The negotiations on the C artagen a Protocol on Biosafety, for exam ple, gave rise to the ‘Vienna Settin g’, in which the deal on the C artagena P ro to c o l w as even tually stru ck (follow ing an earlier b reak d ow n in n egotiations). This friends group proved an effective bargaining forum , largely b ecause negotiating coalitions were m ore cohesive in their interests and positions than in the clim ate change regim e. W hen President Pronk cited the Vienna Setting as a possib le m odel for organizing C O P 6 he received a strong m essage from parties that it w as not ap pro priate for the climate change regim e.

Friends gro u p s in the subsidiary bodies G iven that their conclusions are less politically significant than those o f the CO P, the SB S T A and SB I C hairs only seldom convene friends groups. There have been several exception s, however, all with participation by officials, in keeping with the nature o f the subsidiary bodies. Frien ds grou p s have met where the subsidiary body C h air surm ised that the subject m atter - usually m ore technical or procedural issues - lent itself better to consideration in a small, select group, than in a larger, m ore open forum . ‘Frien ds o f the C h air’ groups, for exam ple, were convened at SB I 10 to develop draft term s o f reference for a

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w orkshop on adverse effects, and at SBI 16 to consider a process for the review o f the financial mechanism. Friends meetings were also used in the SBSTA as part of the post-Kyoto negotiations on technology transfer. From SBSTA 13, however, these were replaced by open-ended contact group m eetings, as there was too much interest in the topic for it to be dealt with exclusively and legitimately in such a small forum . M ore political friends groups were also in evidence at C O P 6, as the Chairs of the subsidiary bodies and open-ended contact groups sought desperately to find ways of reaching agreement.

Shuttle diplom acy ‘Shuttle diplom acy’ can provide a useful alternative (or complement) to friends groups in the final stages of negotiations. Shuttle diplom acy involves the President (or subsidiary body Chair, or a designated colleague) literally ‘shuttling’ between each negotiating coalition (and som etim es individual parties), m eeting with representatives in succession, and drafting and redrafting text until all the coalitions individually agree to it. Shuttle diplomacy therefore constitutes a form of informal consultation (see above) and, needless to say, presiding officers have always held private meetings on all sorts of issues. This kind o f shuttle diplomacy, however, merits separate consideration, given its centrality in sealing a final deal on high profile decisions, including the Bonn Agreem ents and M arrakesh A ccords, along with the New Delhi Declaration. At C O P 6 (part II), for exam ple, C O P President Pronk met with each coalition following the presentation of his com prom ise proposal - the ‘Core elem ents’ paper - and then with individual Um brella G roup countries to discuss their specific concerns. Similarly, at C O P 7, shuttle diplom acy by the ministerial co-facilitators of the ‘Fez 1 G ro u p ’, and by other ministers working on specific issues, was key to reaching agreement on the m ost contentious points o f the M arrakesh A ccords, notably how to accom m odate the Russian Federation’s dem ands for extra sink credits. Shuttle diplom acy by the C O P 8 Presidency was likewise central to agreeing the New Delhi Declaration on Climate Change and Sustainable Developm ent. The rise of shuttle diplom acy as a means of final deal-making is partly a function o f disillusionment with friends groups, and represents a case where the organizers have responded innovatively and pragmatically to problem s encountered with more established means of negotiation. The key advantage of shuttle diplomacy is that it allows representatives of negotiating coalitions to meet privately with the President (or other presiding officer), and therefore to talk freely without fear o f losing political face, or of being accused of treachery by coalition members. Representatives can speak more openly about the difficulties they face in selling a text to their coalitions, suggesting where movement may be possible, even if it is not yet forthcom ing. This w ould not be possible in a forum such as a friends group, where both coalition m em bers and negotiating adversaries - who could exploit such revelations - are present. It is not insignificant that, at the most sensitive moments of negotiations at C O P 6 (part II) and C O P 7, the G-77 Chair attended shuttle diplomacy meetings alone. At C O P 6 (part II), for exam ple, C O P President Pronk received the

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absolutely critical m essage during his shuttle diplomacy that each group - bar the Um brella G roup - was prepared to accept his com prom ise paper as a package, providing all other groups did. Equally im portant was the m essage that, although the Umbrella G rou p had many concerns, it was only the text on com pliance that breached the ‘bottom line’ position of certain members. These m essages would probably not have been forthcom ing in a more open forum, where the Um brella G rou p would m ost likely have felt com pelled to insist on all its dem ands for much longer, and other coalitions might, in response, have felt com pelled to raise their own concerns. Shuttle diplom acy can also overcome the difficulties in dealing with a mix of ministers and officials, as representatives will meet separately with the C O P President (him /herself a minister). Moreover, engaging in shuttle diplom acy is inherently less controversial than convening a friends group, as the right of the presiding officer to meet individually with whatever delegations s/he chooses in the privacy of his/her own office is uncontested. Ironically, however, shuttle diplom acy is even less transparent and procedurally equitable than friends groups, given that meetings are held between just a few people, and the discussions and deals therein arc kept secret.

Unofficial n ego ti at i ons In addition to the groups discussed above, which operate within the am bit of the official negotiation process, it is com m on for parties to engage spontaneously in unofficial talks behind the scenes, to bargain and forge deals on issues of particular im portance to them. Such unofficial negotiations function ivholly outside the process, closed to all but the participants themselves, except for the important fact that any results emanating from them may eventually be brought to the plenary or other official forum to be adopted. Each negotiating session has its own share of unofficial negotiations in the corridors, where individuals exchange ideas and float alternatives on a no­ obligation basis, over dinner or a cup of coffee, in the corridors while waiting for an official meeting to start, in the cafeteria queue, or in a privately booked meeting room. Such unofficial exchanges are crucial as lubricants to the official negotiations. They allow delegates to talk completely freely, as individuals rather than representatives of national positions, articulating views and alternatives that would not be possible in an official arena. If necessary, delegates can later deny that any discussion has taken place. Discussions in the corridors can clarify issues or iron out misunderstandings that may have arisen in the official negotiating arenas, while helping to overcome the (usually negative) stereotypes that delegates hold of one another, building up trust and better social relations. It is also through such unofficial conversations that N G O representatives are best able to lobby delegates (see also Chapter 14). Unofficial negotiations thus increase the overall efficiency of the negotiation process, promoting greater progress in the official informal arenas and formal plenaries. It is important not to indulge in a romantic view of such exchanges, however; while they often do encourage a more cooperative atmosphere, highly aggressive bullying also takes place in the corridors.

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In addition to routine unofficial talks in the corridors, negotiating finales have often seen m ore structured unofficial negotiations, w hereby the m ost pow erful players have taken m atters into their own h ands, perh aps frustrated at the constraints im posed by procedural safeguards in the official process, to hold their own deal-m aking talks. At C O P 3, for exam ple, bargaining on em ission targets took place principally betw een the E U , Ja p a n and the U S in closed m eeting room s located on an upp er floor o f the conference centre. The secretariat and presiding officers never observed these negotiations, which have been described as taking place in a ‘parallel universe’. F o r exam ple, while a Sw iss delegate w as busy conductin g inform al consultations dow nstairs on differentiation,17 the negotiations that w ould eventually decide this issue were taking place upstairs in the parallel universe. A similar, although m ore desperate and less successful, round o f secret talks took place at C O P 6, where top level U K and U S representatives gathered in private - while the official friends group w as still m eeting - to ham m er out a deal. This deal, however, was later rejected by the E U as a w hole (see also C h apter 12). U nofficial grou ps are un doubtedly highly efficient bargaining and dealm aking arenas, cutting out all but the m ost critical players. P articipan ts are able to engage in unrestrained bargaining and full exploration o f possible trade-offs, linkages and side paym ents, w ithout any scrutiny from other parties or N G O s. In the case o f C O P 3, it is likely that such com pletely private bargaining w as indispensable to reaching agreem ent on the em ission targets of the K yoto Protocol. However, by their very nature, unofficial talks are not open to collective policy regulation, and are therefore outside any o f the procedural equity and transparency safeguards o f official forum s. D elegates who do not p o ssess the sam e personal skills, clout or experience cannot engage so effectively in the netw orks o f influence. M oreover, unofficial talks tend to follow, rather than cross, existing lines o f political allegiance, particularly betw een N orth and South, which creates prob lem s when text eventually em erges into the official arenas. D uring the Kyoto Protocol negotiations, for exam ple, countries from the Organisation for Econom ic Co-operation and D evelopm ent (O E C D ) - the most developed countries - had engaged in intensive unofficial talks on emissions trading since roughly C O P 2 in 1996, eventually producing a text they had developed - without any developing country input - in the first week o f C O P 3 (see also Chapter 11). This text, however, was rejected by the G -77, and lingering strong suspicion of em issions trading am ong developing countries almost blocked agreement on the Kyoto Protocol. In another exam ple, the Russian Federation and Ukraine agreed only to a target in the Protocol o f stabilizing their em issions (0 per cent). However, there is evidence that both parties were prepared to accept a - 2 per cent reduction target if they had been engaged in negotiations with other parties and pressure had been placed on them. H ungary and Poland then lowered their targets to - 6 per cent in protest at the Russian and Ukrainian targets, as well as lack o f diplom atic attention from their E U allies (as candidate countries to join the E U , they had been expected to assum e the sam e - 8 per cent target as the E U ) (O berthiir and O tt, 1999). A non-transparent, non-inclusive negotiation thus probably led to an environmentally w eaker outcom e than w ould otherwise have

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been the case, as well as dam aged relations among parties that have continued in the post-Kyoto process. The case o f C O P 6 holds similar lessons. Although the deal between the US and the U K was never formally tabled, the fact that it did not even cover financial issues of particular concern to developing countries - because, of course, developing countries were excluded from the negotiations - means that it would very likely have been rejected had it ever reached an official negotiating forum. The dangers of such explicitly exclusionary negotiations are clear. As a developing country interviewee put it: I rem em ber once there was an issue that som e Annex I parties they sat together and produced a p a p e r ... actually the G -77, I remember, thought the substance was quite O K , but they say they hate this paper. Why? Because they didn ’t like being excluded . .. But nobody actually had any problem s with the paper itself! All the substance was O K , they just didn ’t like the way [it was done]. The challenge, therefore, as posed by Freymond, is ‘how to accom m odate the natural tendencies o f the states whose pow er gives them global responsibilities to settle issues am ong themselves while also considering the claims of the rest of the international community for participation’ (Freym ond, 1991, p l3 1 ). Although nothing can be done to prevent key players from getting together privately to make deals, and indeed such private negotiations are necessary for agreement to be reached, the unofficial negotiations should never be allowed to eclipse the official arenas of the formal plenary, informal arenas and friends groups, if the negotiation process as a whole is to retain legitimacy.

The d ea l- ma ki n g arena Among the network of different arenas upon which negotiations play out, the arena that is chosen (or that simply emerges) as the stage for striking the final deal is of particular importance. The typical pattern in intergovernmental negotiations is for bargaining to become restricted to a smaller and smaller group of parties as the talks become ever more intense with the approach of the deadline. Having started off in a large plenary, negotiations are usually concluded, and a deal reached, in small, closed groups - friends groups, shuttle diplomacy or unofficial talks. O f course, all negotiations will eventually end in a formal, open plenary meeting, but the task o f that plenary meeting is typically to rubber-stamp the results of a deal struck in a closed group. At C O P 6 (part II), for example, the final deal was struck through shuttle diplomacy by the President, plus a marathon overnight meeting o f the ‘Compliance G ro u p ’. At C O P 7, the Marrakesh Accords were similarly agreed through shuttle diplomacy, endorsed by all coalitions in the ‘Fez 1 G ro u p ’. Other landmark decisions, such as the Geneva Ministerial Declaration at C O P 2, the BAPA at C O P 4, and the Delhi Declaration at C O P 8, were all hammered out in friends groups or through shuttle diplomacy.

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In this context, the openness of the finale at C O P 3, conducted in a CoW plenary meeting, was remarkable. All parties had the opportunity to contribute to the final approval of each of the P rotocol’s elements, and putting these together to form an integrated whole, on the basis o f full formal procedural equity and transparency. By way o f illustration, in the exact reversal of the typical pattern, m ore interventions were delivered by a greater num ber of parties on the last night of C O P 3 alone than during any full A G B M session, while ten parties made their only formal interventions in the whole Kyoto Protocol negotiation process on the last night.18 The CoW plenary was fully open also to N G O s and the media, including television cam eras and live broadcast on the Internet. There was only one instance where Chair E strada suspended the open plenary to consult behind the scenes, on the issue of em issions trading where he met privately with the US delegation. Part o f the rationale behind choosing a plenary meeting as the final negotiating arena was precisely its openness to public scrutiny. E strada wanted to ensure that there would be maxim um pressure on negotiators to reach agreement, and that, should any party seek to block consensus, it would be absolutely clear how and on w hose responsibility the Protocol had fallen (see also Chapter 14). The choice o f a plenary meeting as the stage for a negotiation finale was thus ‘rare, but it w orked’ (interview), achieving efficiency as well as procedural equity and transparency. Two im portant preconditions, however, to the successful use o f an open plenary in this way was firstly the effectiveness in that context o f Chair Estrada, and secondly the fact that almost all issues except for the most controversial ones had already been resolved (see also Chapter 12). The final plenary was thus not overburdened and the choices before it were relatively simple, if politically difficult.

S u m m a r y and concludi ng remarks This chapter has explored the many different arenas upon which the climate change negotiations play out, from formal plenary meetings to unofficial bargaining in cafes and corridors. Each arena fills its own niche in the wider climate change negotiation process. Form al plenary meetings provide a platform for parties to posture if they need to, informal arenas (contact groups, informal consultations) facilitate in-depth bargaining, friends groups can provide advice and insights to the presiding officers and a more intimate bargaining atmosphere, while shuttle diplomacy can be invaluable in allowing completely frank discussion. At the same time, space needs to be given to key players to forge the deals they have to forge in unofficial, private arenas. The negotiating arena used to work on an issue - plenary, contact group, informal consultation, friends group - often shifts as negotiations progress. Contact groups may break off into informal consultations, informal consultations may expand and formalize into contact groups, or plenary meetings may convene short informal consultations to resolve a tricky outstanding issue. Each negotiating arena has its own strengths and weaknesses; transparency and procedural equity tends to increase with the formality of the arena, while

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efficiency generally rises with the degree o f informality. G reater efficiency does not necessarily m ean greater effectiveness, however. W here procedural equity and transparency have been eroded beyond a certain level o f acceptability, then the results o f even the m ost efficient group will not be seen as legitim ate. The various negotiating arenas are thus subject to policy m anipulation by the presidin g officers and secretariat to exploit their strengths and com pensate for their w eaknesses. A key tool in this regard is the use o f regular plenary m eetings to m ake up for the equity and transparency deficiencies o f m ore inform al arenas. It is im portant, however, not to go too far in this regard. E xcessive transparency in the official negotiations can paradoxically prom pt the m ost pow erful countries to m ove behind the scenes to try to strike a deal in the m ost untransparent way possible. T h e key to the effective organization o f negotiating arenas thus lies in striking a balance betw een the different arenas. T hat is, essentially to achieve an acceptable trad e-off betw een the efficiency necessary to m anage com plexity and reach agreem ent on the one hand; and the procedural equity and transparency necessary to secure the legitim acy o f the agreem ent on the other.

10

Complementary Forums: Workshops, Roundtables and Others

O ccasions like that help grease the negotiating cycle (interview).

Introduction The negotiating arenas discussed in Chapter 9 are com plem ented in the climate change regime by forum s such as w orkshops and roundtables, which are aimed at gathering information and exchanging views, rather than political bargaining. Such complementary forum s are explicitly highly informal, with no set rules governing their structure or conduct o f business. Indeed, because complementary forum s lack the m andate - indeed, are forbidden - to engage in bargaining, they are less (but not un-) controversial, and therefore the presiding officers and secretariat have even more leeway in their organization. This short chapter explores the various complementary forum s that have been used in the climate change regime to ‘grease the w heels’ of the negotiations proper, focusing on w orkshops and roundtables.

W o r k s h o p s and R o un d ta b le s Nature and functions Like informal groups, complementary forum s have been known by different names in the climate change regime. Box 10.1 provides a general explanation of the different terms used, although the use of these has not always been consistent or rigorous. The Kyoto Protocol and post-Kyoto negotiation processes have seen different trends in the use of complementary forum s. D uring the Kyoto Protocol negotiations, a small num ber of roundtables and w orkshops were organized, mostly during negotiating sessions, on an ad hoc basis (see Box 10.2 on A G B M roundtables below 1). In the post-Kyoto period, a new trend emerged o f holding w orkshops in between negotiating sessions. As the number o f w orkshops grew, established practices emerged to govern these. M ost recently, the subsidiary bodies have begun once again to convene w orkshops during negotiating sessions, reminiscent of the roundtables held under the A G B M during the Kyoto Protocol negotiations.

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T h e precise aim o f com plem en tary forum s varies. Som e are aim ed at exploring and gath ering in puts on a certain topic, especially one that is new in the clim ate change regim e. G o o d exam p les here2 are the w ork sh op s on the flexibility m echan ism s held in A pril 1999, along with the various w ork sh op s held on the adverse effects o f resp o n se m easures. O th ers have been convened specifically to p rovide m ore tim e to con sid er lengthy reports. T h ese include the 2000 w orkshop on the I P C C ’s Special R eport on L U L U C F (IP C C , 2000) along with the 2002 w ork sh op on the I P C C ’s Th ird A ssessm en t R eport (TAR). O th er com plem entary forum s may be focused on su pp ortin g national im plem entation efforts or have a strong capacity-building element. These include w ork sh op s to help non-Annex I parties prepare their national com m unications according to C onvention guidelines, along with regional w orkshops on the im plem entation o f the N ew D elhi w ork program m e on education, training and public aw areness.’ Still others may be linked m ore closely to the negotiation p rocess proper, aim ed at developing draft text as input for the subsidiary bodies. W orkshops on issues related to A rticles 5, 7 and 8 o f the K yoto Protocol (m ethodological issues, reporting and review), for exam ple, along with w orkshops on L U L U C F , becam e as im portant to the negotiation process on these topics in the post-K yoto and post-M arrakesh periods as the negotiations within the subsidiary b odies them selves. In all cases, even in the m ost technical m eetings, it is difficult to prevent political debate, and a degree o f negotiation may erupt spontaneously or unofficially on the m argins. In the post-K yo to era, h oldin g a w ork sh op b ecam e an increasingly popular, and relatively un con troversial, m eans o f kick-startin g negotiations on a particu lar topic (Yam in and D ep le d ge , 2004). In the case o f the flexibility m echan ism s, for exam ple, the w eek-long w ork sh op s in A pril 1999 w ere absolutely critical to im provin g un d erstan d in g and ow nership o f the m echanism s am ong a w ide spectrum o f parties, and to identifying issu es and option s that w ould need ad d ressin g when w orking on rules for their operation . In som e cases, w ork sh op s have been held as a m ean s o f avoiding n egotiation s, or at least o f circum venting the un productiv e w rangling that w ould be gen erated by attem pting to deb ate con troversial issu es in a m ore fo rm al aren a. B e c a u se d e le g a te s are n eith er n e g o tiatin g n or m akin g com m itm ents in a w ork sh op , they can discu ss a w ider range o f issu es m uch m ore freely. T h e controversy surroun din g the issu e o f policies and m easures, for exam ple, m eant that no substan tive, in-depth deb ate could take place in the SB S T A itself, and this instead h ad to b e relegated to w o rk sh op s. T h e w ork sh op and p re-session al con sultation s held on the IP C C T A R provide anoth er exam ple. O p en deb ate on the specifics o f the T A R ’s findings w as not p o ssib le in the S B S T A itself, due to political sensitivities, especially the fear o f d evelopin g countries that the T A R ’s con clusion s m ight b e used to call for a new round o f negotiation s on non-A nnex I party com m itm ents. In stead , frank d iscu ssion w as only p o ssib le in the politically m ore neutral setting o f a com plem en tary forum . O n e interview ee linked the grow th in the n u m b er o f w ork sh op s directly to ‘the greater rigidity and politicization o f

C o m p le m e n ta ry F o r u m s : W o rk sh o p s, R o u n d ta b le s a n d O th e r s

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Box 10.1 Complem entary forum s R o u n d tab le s Several

w ere

convened

du rin g

sessions o f th e

AGBM

du rin g

the

Kyoto

P r o t o c o l n e g o t i a t i o n s . H i g h - l e v e l r o u n d t a b l e s , i n v o l v i n g m in is t e r s , h a v e a l so b e e n c o n v e n e d d u r i n g C O P s e s s i o n s (se e C h a p t e r 13).

W orkshops A l a r g e n u m b e r o f w o r k s h o p s h e l d in t e r - s e s s i o n a l l y h a v e b e e n c o n v e n e d in t h e p o s t - K y o t o p e r i o d . T h e t e r m ' w o r k s h o p ' is p o l it ic a ll y u s e f u l in m a k i n g it a b s o l u t e l y c l e a r t h a t t h e f o r u m is e n t i r e l y i n f o r m a l a n d t e c h n i c a l in n a t u r e , a n d n o n e g o t i a t i o n w h a t s o e v e r is t o t a k e pl ace . A c o u p l e o f w o r k s h o p s h a v e b e e n d e n o t e d as e x p e r t w o r k s h o p s , i n d i c a t i n g t h a t t h e s e a r e s m all er, m o r e s e le ct af fa ir s, i n v o l v i n g e x p e r t s o n t h e t o p ic , r a t h e r t h a n ' o r d i n a r y ' d e l e g a t e s . R e g i o n a l w o r k s h o p s h a v e a l so b e e n h e l d o n i s su e s w h e r e a r e g i o n a l f o c u s is particularly pe rtin ent, n o t a b ly t e c h n o l o g y tra n s fe r a n d ca p a c ity -b u ild in g . A n e w p r a c tic e e m e r g i n g p o s t - M a r r a k e s h is t o h o l d in - s e s s io n w o r k s h o p s .

Expert m e e tin gs A sm all n u m b e r o f c o m p l e m e n t a r y f o r u m s h a v e be e n c o n v e n e d as e xpe rt m e e t i n g s . A s w i t h e x p e r t w o r k s h o p s , t h e s e a re s m a l l e r o c c a s i o n s , a i m e d m o r e at p r o v i d i n g a n o p p o r t u n i t y f o r t e c h n i c a l e x p e r t s t o e x c h a n g e v ie w s , i d e a s a n d la te st r e s e a r c h resu lts, t h a n f o r d e l e g a t e s t o e n g a g e in d i s c u s s i o n .

Pre-sessional co n su lta tio n s These

are

held

im m e dia te ly

'co n su lta tio n ' suggests even

prior

to

a

ne go tiatio n

session.

The

term

g r e a t e r i n f o r m a l i t y t h a n ' w o r k s h o p ' , a n d ca n

a l s o i m p l y s t r o n g e r p o l itic a l l i n k a g e t o t h e n e g o t i a t i o n p r o c e s s.

alm ost every dim ension of the work o f the Convention b o d ie s’. In many cases, the proliferation o f w orkshops held inter-sessionally is a clear function of the overloaded agenda o f the regime bodies, in that there is sim ply insufficient time during the two-week sessions to devote to indepth consideration o f each agenda item. As one interviewee put it, ‘they are an ou tp o u rin g o f w hat needs to be d o n e ’. A nother secretariat interviewee explained the m ultiplication o f w orkshops partly as a fashion: ‘there is an element o f keeping up with the Jo n e s’s. Everyone wants a w orkshop, even when there’s not much to d iscu ss.’ Overall, com plem entary forum s undoubtedly generate m ore active and open debate than in the negotiating arenas and, as such, contribute to the efficiency o f the process. As one interviewee put it, ‘they do give a better exchange o f views ... so long as they are seen as inform al, non-quotable’. Parties are also able to broach politically sensitive topics that cannot be taken up in negotiating arenas, where their mere discussion on the record could imply that they were under form al consideration. Interestingly, one

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The O rganization o f G lo b al N egotiations

interview ee ex p re sse d frustration at this, com m enting that ‘th ere’s a kind o f discon n ect betw een w ork sh op s and the form al p ro c e ss’ . A lth ough delegates talk m ore freely in com plem entary forum s, they tend to assum e once again the restriction s o f their national p ositio ns when b ack behind their country flags. T h e incisive presen tation s and free-flow ing discu ssion at the two in ­ session w ork sh op s on ad aptation and m itigation held at S B S T A 20 in 2004, for exam ple, con trasted with the rather stagn ant proceed in g s in the form al n egotiatin g arenas at that session.

Characteristics Com plem entary forum s in the clim ate change regim e share several key characteristics. M ost importantly, they are m andated by one o f the regim e b odies (usually one o f the subsidiary b o dies), and explicitly designated as technical forum s where no bargaining is to take place - only inform ation gathering and sharing (Yamin and D ep ledge, 2004). D urin g the Kyoto Protocol negotiations, parties were content for com plem entary forum s - notably the A G B M roun dtables - to be convened at the initiative o f the C hair accordin g to a relatively loose m andate. Post-K yoto, however, as the num ber o f w orkshops has m ultiplied and their prom inence in the negotiations has increased, parties have becom e m ore anxious to exert greater control over their organization, and to specify a m ore detailed m andate, in som e cases even an agenda and term s o f reference, especially for w orkshops on m ore controversial topics. F u n d in g fo r w o rk sh o p s is p ro v id e d th rough the trust fun d for supplem entary activities, rather than the core budget, which m eans that it is reliant on voluntary, ad hoc donations from parties. Fun din g will typically be provided by (usually A nnex II) parties particularly interested in the topic under discussion (Yamin and D ep ledge, 2004). D enm ark and France, for exam ple, fu n ded w ork sh op s on policies and m easu res, w hile C an ad a, Germ any, Finland and Ja p a n jointly spon sored the 2003 L U L U C F w orkshop held in Brazil. T h e grow ing num ber o f w orkshops is leading to what one interviewee called ‘w orkshop fatigue’ am ong donors and therefore difficulty in securing adequate funds for each meeting. Inter-sessional w orkshops are held all around the w orld, as countries offer to host a w orkshop on an issue o f special relevance to them. T h e Russian Federation , for exam ple, hosted a w orkshop on joint im plem entation projects in M ay 2004, w hile Iran (an O P E C country) hosted a w orkshop on econom ic diversification in 2003. In som e cases this provides an opportunity for countries who could not afford - in financial or institutional term s - to host a full C O P to play host to a part o f the clim ate change regim e process. This co n tribu tes to sp read in g a sen se o f ow n ership o f the clim ate change negotiations m ore widely, which can be especially im portant in the developing world. A w orkshop held in M auritius, for exam ple, was opened by the Prim e M inister him self, illustrating the value placed by that country on hosting such an event. W here there is no offer to host, the m eeting will be held in Bonn, the secretariat headquarters, to m inimize costs. A practice that has em erged to cope with the grow ing volum e of w orkshops is to hold these in the few days im m ediately prior to a negotiating

C om plem entary F orum s: W orkshops, R ou n d tab les an d O thers

141

session and in the sam e ven ue, in o rd e r to save on cost (such w o rk sh o p s are then often term ed ‘pre-session al co n su ltatio n s’ - see B o x 10.1). T h is practice, however, w hile m ore cost-efficien t, d o e s m ean that key parties and in dividuals w ho tend to get invited to m any w o rk sh o p s are e x p e c ted to be aw ay from h om e for up to three w eeks at a tim e (Yam in and D ep le d g e , 2 004). O n e interview ee, an N G O delegate, co m plain ed that, although his constituency had been invited to p re-session al con su ltation s, he h ad not been ab le to find any representative willing to atten d, as the tim e aw ay from h om e w as too long. Such con cern s have p ro m p te d the re-em ergence o f w o rk sh o p s held during n egotiatin g session s.

B o x 10.2 The A G B M r o u n d t a b l e s The A G B M

r o u n d t a b l e s w e r e a 'p r o c e d u r a l i n n o v a t i o n ' (in te rview ) at th e

time. T h e y w e r e part icula rly in e v id e n c e at A G B M 4 (July 1996), w h e r e th re e w e r e held, o n ' Q u a n t i f i e d e m is sio n li m it atio n a n d re d u c t io n obje ct ives Q E L R O s ' (the A G B M e u p h e m i s m fo r e m is s io n targets ), 'Polic ies a n d m e a s u r e s ' a n d 'P o s sib le im pa ct s o n n o n - A n n e x I pa rt ies o f n e w c o m m i t m e n t s fo r A n n e x I parties'. A n y o n e w a s p e r m itt e d to at te nd, a l t h o u g h the sm all size o f th e room

restricted pa rtic ip atio n. Each r o u n d t a b l e b e n e f it e d fr o m a p a n e l o f

s p e a k e rs f r o m parties, IG O s a n d N G O s , w h o s e p r e s e n t a t io n s w e r e f o l l o w e d by o p e n discu ssion. Th e first t w o r o u n d t a b l e s w e r e ch a ir e d by m e m b e r s o f th e AGBM

B u re au , t he th ir d ( u n u s u a lly f o r t he cl im at e c h a n g e

r e g im e ) w a s

ch a ir e d by a d e l e g a t e fr o m a resear ch N G O . Each C h a ir p r e se n t e d a r e p o rt on t he r o u n d t a b l e to t he A G B M AGBM

plenary, w h ic h w e r e a n n e x e d to t he f o r m a l

rep ort. In t e r v ie w e e s sta te d t h a t t h e y h ad f o u n d

the r o u n d t a b l e s

h elp ful. O n e c o m m e n t e d : 'T h e y w e r e a g o o d i n n o v a t i o n ... like t he o n e on im pa ct s o n d e v e l o p i n g c o u n t r i e s ... s o m e d e l e g a t i o n s w e r e ab le to say in a m u c h m o r e o p e n w a y w h a t th e ir real fe e lin g s w e re '.

W o rksh ops are often chaired by the C h air o f the relevant su b sid iary body, although s/h e m ay invite an oth er d elegate - p e rh ap s an ex p e rt on the top ic - to chair on h is/h e r behalf. T h e 2 0 0 0 L U L U C F w ork sh op held in Italy, for exam ple, w as co-chaired by an A n n ex I an d n on-A n n ex I rep resen tative, w ho co-chaired the con tact gro u p on this issu e in the form al n egotiation s. C om p lem en tary fo ru m s often in clu de presen tatio n s from ex p e rts, in clu ding from the N G O and I G O com m un ities. Interestingly, som e secretariat interview ees rep orted that the large n u m b er o f w o rk sh o p s is startin g to e xh au st the su pp ly o f qualified N G O / I G O ‘reso u rce p e rso n s’ . T h e A G B M ro u n d tab les h eld d uring the K y oto P ro to c o l negotiation p ro ce ss w ere open to p articip an ts from all p arties, an d also to ob servers. P articip atio n at the p o st-K y o to w o rk sh o p s, how ever, w hich have alm o st all been held inter-sessionally, h as been on an invitation-only b asis. T h is is n ecessary fo r lo g istical reaso n s, w hile also p ro m o tin g the efficien cy o f d iscu ssio n s th rough a m ore intim ate and exp ert atm osph ere. M oreover, the cost o f atten din g such inter-sessional m eetin gs inevitably deters w id esp re ad atten dan ce, especially from develop in g coun tries and E IT s. T h e n u m b er o f

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participants varies from w orkshop to w orkshop. The larger w orkshops o f m ore general interest have reached participation levels o f 100+, while expert w ork shops/m eetin gs, or w orkshops focused on national capacity-building and training, have been sm aller affairs, with 30 -5 0 participants. Invitations are typically issu ed to countries, who then nom inate their own experts to attend. Fun din g is provided to cover the costs o f participation by eligible parties, but other invitees m ust cover their own costs. The invitation list is drawn up by the Chair o f the w orkshop, along with the presiding officer o f the convening body (often one and the sam e), with the secretariat’s help. A lim ited num ber o f N G O representatives are usually invited to observe proceed ings, or indeed to contribute through presentations and commentary. Invitations are typically issued through the N G O constituency focal points (Yamin and D ep ledge, 2004). N G O participation at w orkshops becam e a bone o f contention in the post-K yoto period as w orkshops grew in im portance and N G O s w ere con cern ed that their atten d an ce w as b ein g excessively constrained. O ver time, however, and with prom pting from the SB I, the secretariat has developed practices that now ensure that the num ber of invitations generally exceed the n um ber o f participants. F o r m ore on N G O participation , see C h apter 14. The limited participation nature o f the post-Kyoto w orkshops introduces an element o f controversy to them. With only a subset o f parties and N G O s present, transparency and procedural equity are inevitably affected. As one N G O interviewee put it, ‘only the resource rich delegations can send som ebody and the N G O s are de facto excluded. We have no funding to go. T h e rich N G O s may be able to send one or two, but you have a very rarefied atm osphere.’ The acceptability o f w orkshops is therefore dependent on the representativeness of participation, making available as much information about them as possible, and the strict upholding o f their status as com plem entary - rather than negotiation forum s. To enhance transparency, w orkshop presentations and other docum ents are posted on the U N F C C C w ebsite (www.unfccc.int), while the Earth N egotiations Bulletin (E N B ), an independent reporting agency that reports on form al negotiating sessions, has been com m issioned to report on m ajor w orkshops o f general interest, where funding is available."1The convening o f in­ session w orkshops in the post-M arrakesh period, where attendance is open to all, is at least a partial response to concerns over the necessarily limited participation in inter-sessional w orkshops. The outputs o f com plem entary forum s have varied. Som e w orkshops in the post-K yoto era have resulted in just an oral report, w ithout written record (e.g. the 1999 w orkshops on the flexibility m echanism s). M ore recently, the trend has been to issue a written report by the C h air as an official docum ent (e.g. the two w orkshops on policies and m easures and the 2002 IP C C TA R w orkshop). Alternatively, w here it w as deem ed preferable not to give a w orkshop report such official status, the oral report by the Chair has sim ply been placed on the U N F C C C w ebsite (e.g. the in-session w orkshops on adaptation/m itigation at SB S T A 20 in 2004). O th er w orkshops have actually produced draft text, which has then been used as input for discussion s at the follow ing form al negotiating session. The 2001 w orkshop on K yoto Protocol

Com plem entary Forum s: W orkshops, R oundtables an d O thers

143

Articles 5, 7 and 8, for exam ple, prod u ced a very im portant revised negotiating text on these articles, which w as subsequently used in the negotiations at C O P 7. In this respect, som e w orkshops have provoked concerns that they have strayed too far tow ards negotiation, and in certain cases their ou tputs have been disputed by the subsequen t form al negotiating session. The detailed work program m e for including L U L U C F activities under the C D M prepared by the 2002 w orkshop, for exam ple, was challenged at the follow ing session o f the SB ST A , notably by the G -77, which expressed concern at the limited nature of participation at the w orkshop (see E N B , 2002). An interesting dim ension to com plem entary forum s is that delegates will often feel able to debate m ore freely, despite the retention o f many o f the features o f inform al contact grou ps or even form al plenary m eetings, including, in som e cases, interpretation, soun d recordings and presence o f N G O s. W here a written report is prod u ced , these are ironically m uch m ore detailed than the reports on proceed in gs in the form al negotiations them selves. This reveals the im portant distinction in m ultilateral negotiations betw een negotiating and non-negotiating arenas - in addition to the distinction betw een form al and inform al settings; far m ore personal and radical views can be expressed in a forum that is explicitly designated as being not for negotiation, alm ost irrespective o f the procedures in place.

Si de e ve n ts a nd ad hoc m e e t i n g s In addition to the w orkshops and roun dtables discussed above, side events also m ake up an im portant set o f com plem entary fora. W hile these are mostly organized by N G O s (and are therefore discussed in C h apter 14), the subsidiary b odies, secretariat and parties them selves m ake use o f side events as highly inform al arenas where issues can be discussed in a politically safe environm ent. Side events on the research recom m endations o f the IP C C TA R , for exam ple, involving representatives o f research organizations, w ere held under the au spices o f the SB S T A in 2002 and 2004. T h ese events were useful in providing m ore time for discussion than w ould have been available in the form al negotiations, while enabling parties and researchers to engage in a real discussion on research needs outside the onerous constraints o f political acceptability o f the negotiating arenas. Side events organized by the secretariat where non-Annex I parties present their recently subm itted national com m unications have now becom e a regular fixture o f the clim ate change regim e calendar. T h ese events m ake an im portant contribution to the exchange o f inform ation, especially am ong developing countries on w hat w orks in their particular context. D ue to the controversy that surroun ds developing country actions under the climate change regim e, these side events are one o f the few arenas w here the clim ate change policies o f developing countries can be presented and discussed in an open manner. A further initiative by the secretariat has been the organization o f them ed ‘high level’ side events, often involving partnerships with b usin ess groups, to engage in inform al discussion on specific aspects o f the international response to

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The O rganization o f G lo b al N egotiations

climate change (sec also C h apter 6). Parties m ake use o f side events to show case particular aspects o f their climate change policy and program m es, to explain the expected im pacts of climate change on their territories, or even to present new proposals and ideas. D urin g the K yoto Protocol negotiations, for exam ple, the E U convened a side event at A G B M 5 in late 1996 to present and discuss its p rop osals in m ore detail, in response to concerns and m isunderstandings expressed in the form al negotiations. In another interesting exam ple, the U S took advantage o f the inform ality - yet high visibility - o f the side event schedule at C O P 9 in 2003 to organize two events on its climate change policies. T h is sought to convey the politically significant m essage that the U S still takes (or wishes to be seen to take) clim ate change seriously, despite its repudiation o f the K yoto Protocol. Interestingly, as also discussed in C h apter 14, an increasing proportion o f side events are being organized by parties.

S u m m a r y a n d c on c l u d i n g r emarks Th is chapter has discussed how com plem entary forum s, while not central to the negotiation process, are certainly im portant accom panim ents to it, perform ing a variety o f roles that help to increase the efficiency o f the negotiations. Central to their role is the prom otion o f m ore candid debate am ong delegates, outside the strictures o f negotiating arenas. A rem arkable, and som ew hat troubling, asp ec t o f the clim ate ch an ge regim e is in deed how, in m any cases, com plem entary forum s have b ecom e arenas not only for m ore in-depth discussion , but also for broaching topics that w ould be vetoed in the negotiating arenas. T h is is useful, but can also lead to frustration when constructive discussion s in the com plem entary forum s fail to generate discernible change in the positions o f parties in the negotiations proper. A s non-bargaining arenas, roun dtables, w orkshops and sim ilar events can never actually reconcile the positions o f parties. Instead, at their best, they can help pave the way for m ore effective bargaining by facilitating the flow o f inform ation and ideas.

11

Texts

T h e b asic w ork o f the n e go tiatio n s. . . to prod u ce texts that translate concepts into w ords (secretariat interviewee).

I nt roduct ion T h e story o f the K yoto P ro to co l n egotiation s is essentially the story o f how over 430 p age s o f written p ro p o sa ls by p arties gradu ally evolved into the 25 p age final, authentic text o f the K yoto P rotocol that now resides at U N H e a d q u a rters in N ew Y ork. T h e story o f the post-K yo to n egotiation s is a sim ilar one, albeit m ore com plex and lengthy, with over 2000 p age s o f p ro p o sa ls eventually, and laboriously, resulting in the 23 d ecision s covering over 210 p ages o f the M arrakesh A ccord s. In deed any n egotiation - from the high-profile K yoto P ro to co l and M arrakesh A cco rd s to the m ost h um ble su b sid iary body con clusion s - can be ch aracterized as a p ro c e ss o f struggle betw een parties to secure the translation o f their favou red ideas into texts. T h is struggle is m ediated by the organ izers o f the negotiation p ro ce ss who seek w ords, con cep ts and p h rases that can cover enough differin g preferred con cepts to enjoy general con sen su s am ong parties. T exts thus play a crucial role in facilitating and concretizing the reaching o f agreem ent am ong parties. A s a secretariat official on ce put it, ‘any d iscu ssion w ithout text is alm ost a w aste o f tim e b e cau se , when con fron ted with text, theoretical convergence [am on g parties] turns into real d ivergen ce’ . M any differen t kinds o f docu m en ts are p ro d u c e d in the clim ate change regim e, in cluding provision al agen d as and an n otation s, rep orts, and various b ack gro u n d inform ation docum en ts. In this chapter, we concern ourselves chiefly with the docu m en ts at the centre o f the negotiation p ro c e ss, namely, single negotiating tex ts, in cluding C h air’s texts. We also exam ine the textual building b lo ck s through which single negotiatin g texts arc con structed, nam ely raw m aterial texts (p ro p o sa ls su b m itted by parties) and precursor texts (prelu des to n egotiatin g texts that com pile p ro p o sa ls or provide an in ven tory o f o p tio n s). A fte r e x p la in in g g e n e ra l issu e s relatin g to d ocum en tation , this ch apter exam in es the textual developm en t p ro ce ss that has un folded in the clim ate change n egotiation s, from the raw m aterial

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The O rganization o f G lo b al N egotiations

sub m itted by p arties through to the final agreed w ritten o u tp u t o f decision s or conclusion s.

D o c u m e n t a t i o n in the climate c h a n g e r eg im e T h e climate change regim e, like all b o d ies in the U N system , w orks through various different types o f official docum ents, each with their own sym bols and indeed sym bolic m eaning. T h ese official docum ents o f the clim ate change regim e are p rocessed by the U N office at G eneva, and then archived in the U N Library. A lthough m ost o f the main docum ent types - regular docum ents, IN F s, M IS C s, C R P s and others - are prevalent throughout the U N system , the climate change regim e has, within the b ou n ds o f U N docum ent processin g rules, developed its own practices for using them , and has assigned different connotations to them. The regim e has also developed a couple o f its own docum ent types - notably the W E B series - reflecting its own unique needs and circum stances. The main official and sem i-official docum ent types in the climate change regim e, their sym bols and key uses, are explained in Table 11.1. These are not just archaic, bureaucratic classifications. H ow a text is published - as a regular, IN F, C R P or L docum ent - carries with it im portant connotations in term s o f its status and intended use that can have significant im plications for its acceptability and p rospects in the negotiations. An appreciation o f the different m eanings o f these docum ent types is critical to understanding how texts have evolved in the clim ate change negotiation process. W ithin the b ou n ds o f established practices sum m arized in Table 11.1, there is con siderable leeway for the organizers o f the negotiation process to exercise judgm ent in how texts are published in order to advance the negotiations. D uring the K yoto Protocol negotiations, for exam ple, Chair E stra d a published the negotiating text that cam e out o f A G B M 7 in mid-1997 as an I N F docum ent in English only, but his own C h air’s text as a regular docum ent in all U N languages. This sent a very clear signal that, at the forthcom ing A G B M 8 session, negotiations should centre on the C h air’s text, and not the IN F docum ent with its m uch low er status. In addition to the official and sem i-official docum ents explained in Table 11.1, the climate change negotiations m ake extensive use o f non-papers. These are docum ents that have no official status, and therefore no sym bol or even secretariat logo. They are sim ply p h otocopied on blank paper. N on -papers are not usually placed on the secretariat w ebsite and, except for n on -papers o f m ajor im portance that are kept by the secretariat (but not the U N ) library, they are not form ally archived in any way. N on -papers are absolutely crucial to the negotiation process for two reasons. Firstly, b ecause they are not subject to official processin g, they can be p h otocopied and circulated very quickly. This can be very im portant in accelerating negotiations when time is short, or in capturing em erging, fragile agreem ent. Secondly, b ecause n on-papers have no official status, they can be used m uch m ore freely to explore different pro p o sals and possib le com prom ises. In a delicate negotiation, parties can refuse to allow p rop osals they object to even to be circulated in an official

Texts

147

docum ent, for fear this will lend them som e kind o f standing. Circulation in a non-paper, however, im plies no status or com m itm ent, and is therefore much m ore acceptable. In this sense, n on -papers are the docum entation equivalent o f inform al negotiating arenas, or even com plem entary forum s (see C h apters 9 and 10). A go od exam ple o f this point occurred in the final stages o f the K yoto P rotocol negotiations at C O P 3, where A nnex I parties were engaged in unofficial talks behind the scenes on a text on em issions trading. T h e G -77, which had not been included in those talks, conceded to the circulation o f that text as a non-paper, but C h air E strad a subsequently refused to include it in the official single negotiating text, know ing that the developing countries w ould object to endow ing the text with official status in this way. In all cases, in keeping with the close w orking relationship and division of lab ou r betw een presidin g officers and the secretariat (see C h apter 6), it is typically the secretariat who will carry out the bulk o f the w ork in drafting texts - w hether precu rsor texts, negotiating texts, or even C h air’s texts. The presidin g officer will usually review the secretariat’s w ork, m aybe pro p o se changes, and then present the text un der h is/her own responsibility.

The d e v e l o p m e n t o f texts in the climate c h a n g e negotiations N o specific rules exist to govern how texts gradually develop in a negotiating round under the clim ate change regim e. E stablish ed practice, however, is broadly for a negotiation to pass through the stages o f textual developm ent outlined in Table 11.2 below, correspon ding to the main stages o f a negotiation described in C h apter 2: The cardinal law o f any textual developm ent process is that it must always keep m oving, thereby both reflecting and prom pting the progress o f negotiations from exploration and the tabling of p roposals, to bargaining, to deal-m aking. If a textual developm ent process gets stuck at any stage - publishing endless raw m aterial from parties, say, or stubbornly lengthy negotiating texts session after session - this not only suggests that the negotiation is stagnating, but also perpetuates that stagnation, as weighty, com plex docum ents raise obstacles to engaging in effective bargaining or deal-making. We now exam ine various cases o f textual developm ent in the clim ate change negotiations, focusing on the K yoto and post-K yoto negotiation processes. In doing so, it is im portant to bear in m ind the differences betw een these two sets o f negotiating rounds, notably the greater disaggregation o f the latter. In the K yoto negotiations, all texts - from the initial raw m aterial from parties to the final negotiating texts in K yoto - covered the w hole package o f issues under negotiation (em ission targets, policies and m easures, com pliance, reporting, and so on). In the post-K yoto negotiations, however, the developm ent o f texts on each issue follow ed its own separate path. T h is chapter focuses in particular on the flexibility m echanism s, com pliance and L U L U C E which were each dealt with in separate negotiating arenas (see C h apter 9) with a separate textual developm ent process. It w as only at C O P 6 that the key political issues - the

Table 11.1 Official and semi-official documentation of the climate change regime D ocum ent

Sym b ol

Typical content, use a nd connotation

Language

Regular

No special suffix e.g. FCCC/CP/2002/1

Information

INF suffix e.g. FCCC/SBI/2002/INF.2

The most formal document type. Used for reports on negotiating sessions (including conclusions and decisions), agendas, most secretariat background documents An informal document. Used to publish technical data and information (e.g. a scoping study), or workshop reports. Documents that should be issued as regular documents are sometimes published as INFs simply because there is insufficient time to translate them Informal document, compiling proposals or views submitted by parties

All six UN languages and subject to rules on advance distribution English only

MISC suffix e.g. FCCC/SB/1998/MISC. 1 Technical paper TP suffix e.g. FCCC/TP/2001/2 Miscellaneous

Limited distribution

L suffix e.g. FCCC/CP/2003/L.2

Conference room paper

CRP suffix e.g. FCCC/SB1/1999/CRP.3

Web-only

WEB suffix e.g. FCCC/WEB/2002/2

Informal document, used for detailed analytical papers on technical issues. In theory, not linked to any specific negotiating session, but often used as background Formal document prepared in-session (during negotiating sessions) containing draft text (decisions or conclusions) presented to the COP or subsidiary bodies for adoption. Distribution is limited in that only a small number of copies are printed, but not restricted Informal document prepared in-session containing proposals or text reflecting the status of negotiations on a particular issue. Draft text presented to the subsidiary bodies or (less often) the COP for adoption that should be issued as an L document are sometimes published as CRPs due to lack of time for translation A new series of only semi-official documents published only on the secretariat website without going through UN channels. Web documents are a pragmatic response of the secretariat to growing demand for documents and the need to minimize costs. Used for material that is regularly updated or does not require official status, e.g. submissions from NGOs and updates on the preparation of non-Annex I national communications

Source: Table derived fro m FCCC (2000) a n d Y am in and D e p le d g e (2004)

Language of submission. No formal editing English

All six UN languages

English only

English. No secretariat logo

Texts

149

T a b le 11.2 The textual developm ent process N e g o tia tin g phase

Typical text

Expl orator y phase an d tabling of

The subm issio n of propo sals (raw material) from parties and their pub lication in M IS C do cum ents. This m ay continue t h r o u g h o u t the negotiation, but with the v o lu m e of s ubm is sions an d new ideas con ta ined therein tailing off

propo sa ls

Transition t o w a r d s b a rg ain in g

O n e or t w o precu rso r texts (prelude to a n e go tiatin g text), either an inventory of opt io ns or a com pi lation of pro po sa ls

B arg a in in g phase

A n initial sin gle n e g o tia tin g text, f o ll o w e d by a series of increasingly streamline d revisions

Intensive b a rg a in in g an d start of dealm a k in g

A C hair's text, presenting (elements of) a (more or less com pr ehe ns iv e) c o m pro m is e

D e al- m ak in g

A final r o u n d of sin gle n e g o tia tin g texts, pr oba bly f o cu sing on key o u ts ta n d in g issues an d including Chair's pro po sals

‘crunch issu es’ - w ere brought together for consideration as a package deal, eventually resulting, at C O P 6 (part II), in the Bonn A greem ents. A nother structural difference betw een the two processes w as that, because the K yoto negotiations were m andated to ad op t a new treaty - a protocol or an am endm ent - they were subject to the form al deadline o f circulating a text at least six m onths b efore C O P 3. Su p p orted by a legal opinion from the U N O ffice o f L egal A ffairs, this provision was interpreted by the organizers, and eventually endorsed by the parties, as referring to the circulation o f a form al negotiating text, after which point no m ore ‘substantively new elem ents’ could be put forw ard (A G B M 6 report, p6; see also C h apters 5 and 7). T h is deadline - 1 Ju n e 1997 - proved very helpful to the textual developm ent process, as discussed further below. T h e post-K yoto negotiations, however, which were to result only in C O P decisions, had no such form al deadline, which again affected the textual developm ent process. E ach step in the textual developm ent p rocess o f the K yoto and postK yoto negotiations is explored in m ore detail below, and sum m arized in T ables 11.3 to 11.8.

The r a w material: m i s c el l a n eo us d o c u m e n t s The basic docum entary com ponents for the climate change negotiations are the textual proposals put forw ard by parties and issued in m iscellaneous - M ISC docum ents. These written inputs are subm itted in response to requests from the subsidiary bodies or, less often, the COP. Because M ISC docum ents simply rep ro d u ce p a rtie s’ p ro p o sa ls verbatim , they are routinely used as an uncontroversial m eans o f launching or advancing a negotiation process. Any new

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negotiating round will pursue its initial exploratory stage with a call for proposals by parties and their issuance in M ISC documents. This applies both to major negotiating rounds, and to the more routine consideration o f any new issues, or new aspects of issues, in the subsidiary bodies. The Kyoto Protocol negotiations began with two rounds of party submissions, circulated in M ISC documents. The first round of submissions, up to and including A G BM 3 in early 1996, consisted of ‘comments’ by parties. At A G BM 3, however, this request for submissions was upgraded to call for ‘proposals’, and at A G BM 4 in mid-1996 for 'concrete proposals’, thereby encouraging parties to propose more specific draft text in legal language, rather than a vague expose of ideas. The six-month deadline for the circulation of the formal negotiating text proved very helpful in providing a clear watershed, after which time parties were not expected to submit major new proposals. Therefore, although submissions continued to be received by the secretariat and issued in M ISC documents after the six-month deadline had passed on 1 June 1997, these were largely elaborations on previous proposals, and of lesser page length. In the six months between 1 June 1997 and the start of C O P 3, for exam ple, 63 pages o f M ISC documents were produced, compared with 267 the previous six months. M ISC docum en ts were particularly im portant for the post-K yoto negotiations, given the novelty and unprecedented nature o f the issues - notably the flexibility m echanism s - under negotiation. The opportunity to communicate their views in M ISC docum ents was crucial in providing an outlet for parties to reflect on the new issues arising from the Kyoto Protocol. Altogether, in the two years before scheduled deadline for the post-Kyoto negotiations at C O P 6 in N ovem ber 2000, over 740 pages o f M ISC s were subm itted on the flexibility mechanisms alone, and over 630 on L U L U C F. The absence of any formal six-month deadline for a negotiating text akin to that for the Kyoto Protocol negotiations meant that the volum e o f M ISC subm issions continued at a high level for longer. In the case of the flexibility mechanism s, for exam ple, 164 pages were received just two months before C O P 6. Such a m assive volum e of written subm issions at such a late stage inevitably com plicated the negotiations. The situation for L U L U C F appeared even more dramatic, with 450 pages subm itted between August 2000 and C O P 6. This late barrage of subm issions was due to the structure o f negotiations on L U L U C F ; much of the substantive consideration of the topic was delayed until after the publication o f the IPC C Special Report on L U L U C F (IP C C , 2000) in May 2000 (see Chapter 12).' The main function o f M ISC docum ents, as identified by the former Executive Secretary, is to act as ‘a vehicle for sharing ideas with other parties’ (Zammit Cutajar, 1995). M ISC docum ents are the recognized channel for governments to publish and circulate their official views and proposals, and are made widely available to all parties, observers and the global public. From 1997, most o f the contents o f M ISC docum ents have been placed on the secretariat website (www.unfccc.int) widening their accessibility. M ISC docum ents also play a crucial role in reassuring delegates that their views are on the table and under official consideration. The inclusion of proposals in an official M ISC document, with its own docum ent symbol and

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the Convention logo, confers recognition and status upon a party’s written text, which then resides in U N docum entation archives as a perm anent textual record o f a party’s position. It is m ore im portant for som e parties than others to gain official recognition for their p roposals in this way. F or exam ple, during the K yoto P rotocol negotiation process, both the G -77 and China, and the U S, announced their p rop osed em ission targets at A G B M 8. W hile the G -77 and China requested that their prop osal b e included in a M IS C docum ent (see F C C C /A G B M /1 9 9 7 /M IS C .8 ), the U S never did so, and no official record of the p rop osed U S target therefore exists within the regim e. This can be partly attributed to the confident assum ption o f the U S that its p ro p o sal w ould be given due attention in the negotiations, w hereas the G -77 and China, a group o f developing countries aw are o f their m ore lim ited power, sought the official backin g and recognition o f a M IS C docum ent. R eferring to the G -77 and China p rop osal at A G B M 8, M w andosya (then C h air o f the G -77) tellingly rem arks, ‘for appearin g in an official document the m atter w as form ally on the table’ (M w andosya, 2000, p 85, em phasis ad d ed ). T h is tendency has continued in the clim ate change regim e, with the G -77 and China often insisting that their statem ents m ade during negotiating sessions be issued in M ISC docum ents. O n ce a single negotiating text has em erged in the later stages of negotiations, M IS C s can be used by the organizers o f the negotiation process as a form o f reassurance, to bolster the confidence o f parties that their p rop osals are still under consideration, even if their contents are not fully covered in the single negotiating text. D uring the K yoto Protocol negotiations, for exam ple, C hair E strad a qualified his presentation o f the initial single n ego tiatin g text by sayin g, ‘ a l l . . . the vario u s m iscellan eo u s d o c u m e n ts. . . remain on the tab le’ (A G B M 7, 1997c). H e m ade sim ilar rem arks at later stages in the negotiations (A G B M 8, 1997b; CoW , 1997a). A lthough negotiations in fact focused on the relevant single negotiating texts and the M ISC docum ents w ere scarcely referred to, this reassurance h elped to increase the acceptability o f those texts. In this sense, M IS C s can be im portant as face-saving tools. D elegates who fail to get their chosen con cepts reflected in a negotiating text can claim , in particular to their dom estic constituencies, that their p roposals are still on the table. D urin g the K yoto Protocol negotiations, for exam ple, the U S, in accepting to w ork with the C h air’s text presented in late 1997, pointed to the introductory statem ent in that text, to the effect that it was presented w ithout prejudice to the original proposals from parties contained in the relevant m iscellaneous docum ents (A G B M 8, 1997a). This enabled the U S to accept the C h air’s text as a basis for negotiation, even though it did not contain the highly controversial U S prop osal on the evolution o f com m itm ents for developing countries.

Precursor texts T h e term ‘precu rsor tex ts’ is used here to refer to texts that group and organize p rop osals from parties into a single docum ent, but are not yet fully-fledged negotiating texts. The rclevance and im portance o f precu rsor texts lies in the

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fact that the designation o f a docum ent as a ‘negotiating text’ can b e an extrem ely im portant sym bolic m om ent in a negotiation process. Parties will often be hesitant to declare that they are engaging in actual bargaining - which is im plied when a form al negotiating text is on the table - preferring to stick to exploratory w ork and the tabling o f p roposals for as long as possible. This was the case in the K yoto Protocol negotiations, for exam ple, where there w as great sensitivity over when real negotiations w ould com m ence. P recursor texts can therefore serve a useful p urpose in advancing the consideration and textual developm ent o f an issue - organizing subm ission s un der com m on headings, grou p in g sim ilar p ro p o sa ls together, redu cing duplication in the texts, identifying key issues, pinpointing areas w here p rop osals are lacking - but stoppin g short o f taking the politically significant step o f publishing an initial negotiating text. In this sense, precu rsor texts often m ark, and encourage, the transition from the exploratory stage o f negotiations and the tabling of p rop osals, to the start o f bargaining. This begs the question of what distinguishes a negotiating text from a precursor text. O ften, the distinction is simply in the name given to the docum ent. There are, however, certain ‘m arkers’ that indicate a true negotiating text (see below) and these, therefore, will usually be absent from a precursor text. A typical precursor text will thus: • • • •

b e drafted at least partly in a narrative style, with only lim ited legal text retain the separaten ess o f individual p roposals, often sim ply listing these rather than integrating or consolidating them into com m on text attribute text to the party that p rop osed it and not include square brackets, which indicate text that is not agreed and are classic m arkers o f a negotiating text.

In som e cases, however, as the presidin g officers and secretariat seek to advance the negotiations, som e o f the m arkers o f a negotiating text - absence o f attribution to the p roposin g party, for exam ple, or inclusion o f square brackets - may creep in. Indeed, sm oothing over the pathw ay from raw m aterial to a negotiating text is one o f the m ain functions o f a precu rsor text.

S i ng le n e g o t i a t i n g texts The literature assigns an im portant role to single negotiating texts, viewing these as key tools for prom oting a m ore cooperative bargaining approach and facilitating agreement. Single negotiating texts are thought to encourage opposing parties to focus on text rather than on the differences between them, and to allow many issues to be considered simultaneously, thus facilitating trade-offs and enhancing the efficiency o f the process. According to Fisher et al (1999, p l2 2 ): T h e one-text [single negotiating text] procedure ... is alm ost essential for large m ultilateral negotiations. O n e h undred and fifty nations ... cannot constructively discuss a h undred and fifty

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differen t p ro p o sa ls. N o r can they m ake con cession s con tin gen t u p o n m u tu al con cession s by everybody else. They n eed som e way to sim p lify the p r o c e ss o f d e c isio n -m a k in g . T h e o n e -te x t p ro ce d u re serves that p u rp o se . A n egotiatin g text is b asically a draft o f the ou tp u t (p ro to co l, decision, c on clusio n ) un der n egotiation , with lan gu age that is not agreed ap p e arin g in sq u are b rack e ts, or otherw ise highlighted. T h e aim o f the n egotiation is thus to w ork on that o u tstan d in g lan gu age, findin g com p rom ise text that can lift - or rem ove - the b rack ets. A s n oted ab ov e, p ro d u c in g an initial n egotiatin g text can b e a very im portan t step in a n egotiation p ro c e ss, both reflecting and facilitatin g the start o f b argain in g. O p tio n s are gradu ally w hittled aw ay and d isc ard e d , rather than ju st con solid ated and rearran ged. T h e con ten ts an d structure o f the initial n egotiatin g text can th erefore b e very politically sensitive. W h atever the structure o f the negotiatin g text, it is likely to persist to a large exten t through to the final agreem en t. I f a p ro p o sa l ap p e ars in the negotiatin g text, then it is form ally u n d e r con sideration . C onversely, if it is not covered by the negotiatin g text, then it is unlikely to b e given seriou s attention. T h e sen sitivity su rro u n d in g the p re p aratio n o f a n e go tiatin g text can be illu strated by the realizatio n that the term ‘n ego tiatin g te x t’ is in fact rarely u sed . E ven the n e go tiatin g text issu e d ac c o rd in g to the fo rm a l six-m on th d e ad lin e in the K y o to P ro to c o l n e g o tiatio n s w as n ot titled as such (see T ab le 11.3). N e ith e r the p o st-K y o to c o m p lia n c e n e g o tiatio n s n or the L U L U C F n e go tiatio n s ever b ro u g h t forth a d o c u m e n t w ith the title ‘n e g o tiatin g te x t’ , p re fe rrin g to use m ore n eu tral, sa fe r titles (see T a b les 11.6 an d 11.7).

M a r k e r s o f a n e g o t i a t i n g te xt A lth ough there are no rules govern in g the structure, style or conten ts o f a n egotiatin g text, there are three m ain m arkers for such a text. Firstly, the key m arker o f a n egotiatin g text is that the p ro p o sa ls from parties are no lon ger distinct and attribu ted to their p ro p o n e n ts, b ut are m erged, co n so lid ate d and in tegrated into com m on text. R em oving the n am es o f p ro p o sin g p arties is particularly im portan t for b argain in g to start. W ithout attribu tion , the text is less perso n alized , and it is th erefore easier for p arties to con sent to the deletion o f w hat is no lon ger ‘th e ir’ text. Secon dly , d ivergen t p re fe re n c e s are in d icate d by way o f sq u a re b ra ck e ts. S q u a re b ra c k e ts are in d eed the sta n d a rd m ean s in in te rg o v e rn m e n tal n e g o tiatio n s o f sign ify in g lack o f agreem en t over a p a rtic u la r p ie c e o f text. H o w ever, there are in stan ce s w here the o rgan ize rs o f the n e go tiatio n p ro c e ss m igh t w ish to con vey a m ore su b tle n u an ce to a p h ra se o r p a ra g ra p h b ey on d stark ag reem en t or d isag re e m e n t. In such case s, d iffe rin g tex tu al d ev ices m ay b e u se d , such as fo o tn o te s o r n o tes to the reader. O th e r m o re innovative tex tu a l d ev ices have b een u se d in the clim ate ch an ge n e go tiatio n s to co p e with an d reflect the great co m p lexity o f te x ts, m ad e p o ssib le b y m o d e rn w ord p ro ce ssin g . At C O P 3, fo r e x am p le , sid e b ars in the d o cu m e n t m argin s w ere

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u se d to in d icate th o se articles still req u irin g p o litical n ego tiatio n in the text p r o d u c e d fo r the arrival o f m in isters (see T ab le 11.3). Su ch sid e b ars w ere used in p re fe ren ce to sq u a re b ra ck e ts, w hich C h air E stra d a so u g h t to av o id , given th eir sy m bo lism o f d isag re e m e n t am on g p artie s. T h e p o st-K y o to n e go tiatio n s on the flexib ility m ech an ism s w ere p articu larly in n ovative in their use o f tex tu a l devices. T h e n e g o tiatin g text em erg in g from C O P 6 (part II), for e x am p le (see T ab le 11.5), used ’+ ’ sign s to in d icate the sta tu s o f v ario u s p a rts o f the text. ' + + + ’ w as u se d to d en o te tex t a d o p te d as p a rt o f the B on n A g re e m e n ts, ' + + ’ fo r tex t ag re e d in d raftin g g r o u p s an d * + ’ fo r tex t partially ag re e d in d raftin g g r o u p s, w ith u n m ark e d tex t eith er n ot c o n sid e re d o r not ag re e d . T h is n otation w as extrem ely u se fu l fo r p a rtie s to m ake sen se o f the very co m p le x o u tc o m e o f C O P 6 (p art II), an d to h elp them e m b ark on the final sta g e s o f n e go tiatio n s at C O P 7 with a g o o d u n d e rstan d in g o f the sta tu s o f n e go tiatio n s. T h e sim ple use o f the trad itio n al sq u a re b ra c k e ts co u ld not h ave c o p e d with the co m p le x ity o f the tex t. Thirdly, an d very im portantly, n egotiatin g tex ts are recogn ized as such prim arily by their use o f legal lan guage. In a legal agreem ent, m inute details and n uan ces can m ake all the differen ce. It can often prove relatively sim ple for p arties to agree on b ro a d con cep tu al ideas, b u t m uch m ore difficult to agree on tran scrib in g an d codifying that co n cep tu al con cu rren ce into legal text. L e g a l text con sists o f a com m on lan gu age w hose su b tleties, intricacies and ‘clim ate-sp ecific’ jargon are u n d e rsto o d by all exp erien ced n egotiators. ‘Sh all’ , ‘sh o u ld ’ , ‘m u st’ , ‘m ay ’ , ‘m igh t’, ‘w ill’ are am on g the m ore o b v io u s and com m on term s in n egotiation s, each with their ow n im plication s that can m ake o r b reak an em ergin g com p rom ise. T h e im p ortan ce o f w orkin g on text in legal lan gu age can b e illustrated by the experien ce at C O P 6. H ere, C O P P resid en t Pron k a d o p ted a different ap p ro ach b ase d on the assu m p tio n that m in isters w ould prefer to n egotiate on political con cep ts and b ro ad -b ru sh d eals, not com m as an d b rack ets. T h e su ggestion w as that, on ce the political deals h ad been struck, it w ould then be p o ssib le for the secretariat or technical n egotiators to w rite these up into legal text. T h e effect w as that the n egotiatin g texts, w hich h ad d e v elo p ed over two o r three years, w ere sidelin ed, as n egotiators g ro u p s w ere en co u raged to focu s in stead on n e gotiatin g po litical deals. T h is ap p ro a c h , how ever, pro v ed ineffective. T h e negotiation C h airs rep eatedly com p lain ed that, w henever they thought they w ere m oving forw ard s in their political n egotiation s and sought to concretize the con cep ts d isc u sse d on a piece o f paper, the ap p aren t agreem en t ten ded to evap orate.

N e g o t i a t i n g te x ts as co difiers o f a g r e e m e n t It is com m on for several iteration s o f a full negotiating text to b e p ro d u ce d u n d e r a n egotiatin g roun d. Typically, a new n egotiatin g text will em erge from each negotiatin g session , reflectin g the statu s o f d iscu ssio n s at the close o f that session . T h en the p resid in g o fficers will typically seek a m an d ate to w ork further on that text, with the h elp o f the secretariat, for the follow in g session . D u rin g the n egotiation finale - the final n egotiatin g session - it is typical for

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two o r three iteration s o f the full text to ap p e ar as o fficial con feren ce room p a p e rs (C R P s), along with m yriad iterations o f specific p arts o f the text ap p e arin g as un official n on -papers. R egu lar revisions o f a n egotiatin g text are extrem ely im portan t as a m ean s o f con cretizing fragile, em ergin g agreem en ts, turning tentative c o m p ro m ise s into reality. O n ce a text h as b een cod ified in w riting, it ten d s to b e co m e perm an en t, especially if aid ed by stron g chairing. D u rin g the C O P 3 finale o f the K yoto P ro to c o l n egotiation s, for exam ple, un b rack eted texts on several issu es (e.g. review o f com m itm ents, provisio n s for E IT s) w ere in clu d e d in n e g o tiatin g te x ts on a prelim in ary b a sis, b u t su b seq u en tly rem ained u n ch an ged. C o n ce p tu al agreem en t and text b ecam e one and the sam e, so that the em ergin g agreem en t w as b uilt up an d solidified organ ically through a b o tto m -u p p ro ce ss - w ord by w o rd , com m a by com m a - and could not then b e easily unravelled. T h e first cou ple o f iteration s o f a negotiatin g text are alm o st alw ays lengthy, as m ore p ro p o sa ls are in clu ded than will finally be ad o p ted , an d parties are an xiou s to have their view s reflected in the text. A s one interview ee p u t it, ‘ . .. all n egotiatin g t e x t s .. . are a kin d o f a d u m p in g g ro u n d fo r 150 co u n tries’ ideas. [They] tend to develop elep h an titis.’ T h e key to a su ccessfu l n egotiation is for the negotiatin g text to be gradu ally stream lin ed and sim plified with each revision, as agreem en t is reached on parts o f the text and o p tio n s are taken o ff the table. T h e initial negotiatin g text for the K y oto P ro to c o l n egotiation s, for e xam p le , w as very unwieldy, at 129 p a g e s lon g. T h is w as cut dow n to 82 p ages at A G B M 7 in m id-1997, and to 32 p age s by the start o f C O P 3. T h is n egotiatin g text w as then w hittled dow n to 24 p age s by the secon d w eek (see also T able 11.3). It w as not only the n u m b er o f p a g e s that w as red u ced , b u t also the n u m b er o f o u tstan d in g issu es reflected in the text. T h e 94 pairs o f b ra ck e ts ap p e arin g in the revised n egotiatin g text at the start o f C O P 3 w ere red u ced to 81 a w eek later. N o b rack e ts at all w ere in clu ded in su b seq u e n t iterations b e ca u se the C h air sou gh t to p u t forw ard co m p ro m ise p ro p o sa ls, b ut the n u m b er o f areas o f disagreem en t w as also red u ced . T h e p o st-K y o to n egotiation s on com plian ce and L U L U C F also follow ed a sim ilar p ro c e ss o f grad u al con solidation an d stream lin ing o f their n egotiatin g texts (see T ab les 11.6 an d 11.7). T h e negotiatin g text for the p o st-K y o to n egotiation s on the flexibility m ech an ism s, how ever, d e v elo p ed in a dysfu n ction al m anner, even con siderin g the large n u m b er o f c o m p lex issu es that it had to cover.' D esp ite n um erab le iteration s (see Table 11.5), the docu m en t show ed little ap p re ciab le , sustain ed stream lining or slim m ing dow n until C O P 7 itself. A s the E arth N ego tiatio n s Bulletin put it, in their analysis o f S B S T A /S B I 13, ‘P ro g re ss on m ech an ism s w as disap p o in tin g. P arties a r riv e d . . . with a 125 p age text, and d e p arte d with a 200 p a ge text and an assu ran ce that they will b e ab le to m ake furth er su b m issio n s p rio r to C O P - 6 ’ (E N B , 2 0 0 0 d ). T h is w as d u e to two facto rs: firstly, p arties felt the need to k eep pu ttin g forw ard w ritten su b m issio n s an d am en dm en ts, so that the n egotiatin g text ju st k ep t on grow ing. E ven at C O P 6 (part I), som e 50 p age s o f am en dm en ts w ere su b m itted to the text that ap p e are d at the close o f the first w eek o f n egotiation s. T h is w as, in p art, due to the legitim ate n eed o f govern m en ts to gain ow nership over the three m ech an ism s, especially the C D M , w hich, in K y oto , h ad been develop ed by only a sm all n u m b er o f parties.

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How ever, the lack o f restraint displayed by parties in putting forw ard new subm ission s and am endm ents took this legitim ate need to unreasonable extrem es. This tendency w as not helped by the second factor, that is, the approach o f the C hair o f the joint contact group on m echanism s, who ad opted a liberal attitude o f encouraging buy-in, rather than a sterner ap proach that m ight have put a stop to so many subm ission s. This cautious strategy may have been ap pro priate given the controversy surrounding the flexibility m echanism s, b ut it did not help to produce a m anageable negotiating text. O fficials therefore faced a m ass o f cum bersom e negotiating text at the start o f C O P 6 (part I), which c o n trib u te d to the slow p ro g re ss in the n e go tiatio n s. In d e e d , m any com m entators pointed to the volum e o f text as one o f the triggers for the failure o f the session (e.g. O tt, 2001; Yamin and G ru b b , 2001). This points to the role played by texts not only as registers and reflectors o f substantive progress, but as active tools for prom oting such progress. E ffective negotiation requires a m anageable negotiating text, that is, one where the agreed and outstanding issues, along with the options open to parties, are clearly sign posted and are not lost am id a sea o f brackets and m inutiae.

Chair's texts Th e preparation o f a p ro p o sed com prom ise text by the presidin g officer - a C h air’s or P resid en t’s text - can m ark a w atershed in a negotiation process, often pointing the way to success or failure. It is the point at which a presidin g officer exercises h is/her authority to present h is/her vision o f a text that can spur parties to consensus. H ow far a presiding officer is prepared to go - creating an entirely new tex t or draw in g faith fully on e x istin g p r o p o sa ls, p resen tin g a com prehensive com prom ise option or retaining alternatives on key points - is a m atter o f judgm ent. As the text is intended to m ove delegations closer to agreem ent, it m ust strike a delicate political balance betw een taking risks to propel the negotiations forw ards, and not going so far as to im pose an unw anted solution that is then rejected. I f successful, the presentation o f a C h air’s text will m ark the intensification o f bargaining, or even the start o f serious deal making. A very im portant function o f a C h air’s text can simply be to produce a shorter, less com plex, m ore m anageable text, which clears out superfluous square brackets and unviable options, along with instances o f duplication or editorial incoherence. The sim ple act o f producing a docum ent drafted in a single editorial style, using consistent terminology and language, can help negotiations to proceed in a more efficient manner, focused on the substance o f the key political issues. An interviewee expressed the need for such an exercise as follows: T h ere has to com e a m om ent when the C h airm a n . . . effectively says, ‘we can ’t proceed interm inably w it h ...a ll the o p tio n s...I have to exercise my C h airm an ’s prerogative to table a text that I believe properly and fairly reflects everybody’s views, but cutting out a lot o f the d e ad w o o d ’. .. M ost peop le in their heart o f hearts appreciate it. H ow ever they posture, they basically appreciate it.

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A nother key function o f a C h air’s text can be to act as a face-saving device. As one interviewee noted, ‘by that stage no party w ants to w ithdraw som ething from the table so it’s up to the Chairm an to p re se n t. . . the face-saving com prom ise and ch oices’ . By presenting text as his/her own, the presiding officer can help to loosen the b on d s o f ow nership that tie parties to their own proposals. W hile parties m ight not be willing to b ack down in favou r o f the p rop osals o f others, they can do so implicitly by su pp ortin g a C h air’s text. E xp ressin g su p p o rt for a C h air’s p roposal is generally viewed as a noble gesture in the spirit o f com prom ise, rather than as a capitulation (see also C h apter 4). A very im portant factor in the successful production o f a C h air’s text is the tim ing o f its release - too early, and it can be viewed as prem ature interference, too late, and there may be insufficient time to negotiate on the basis o f it, and it may be seen as an unw elcom e take it or leave it im position. A nother key factor is the extent o f consultation undertaken by the presidin g officer (or the organizers m ore broadly) with parties and coalitions in preparin g the text. The correlation is not entirely straightforw ard. E xten sive consultation may be helpful in securing legitim acy and acceptability for the text. O n the other hand, it can create unreasonable expectation s on the part o f the delegates that their views will be reflected in the text, or otherw ise erode the independen ce o f the presiding officer’s p roposals. Before preparin g a C h air’s text, presidin g officers will typically seek a m andate to do so from the negotiating body. A s with all docum ents, the presiding officer will often receive strong su p p o rt from the secretariat in preparin g the C h air’s text. C h air’s texts played a pivotal role in both the K yoto and post-K yoto negotiations. D uring the K yoto negotiations, C hair E strad a brough t out his C h air’s text for A G B M 8 in late 1997, the last negotiating session b efore Kyoto. D urin g C O P 3 itself, he also m ade use o f his authority as C hair to p rop ose text on certain outstandin g clauses. In the post-K yo to p ro ce ss, C h air’s texts - m ore accurately, P re sid en t’s texts - w ere central to negotiations on a political deal covering the package of issu es, which eventually led to the Bonn A greem ents (see Table 11.4). C O P 6 P resid en t Pron k p ro d u c e d his first P re sid en t’s text on the eve o f the sch eduled closure - and eventual failure - o f C O P 6. H is secon d P re sid en t’s text w as issu ed in the inter-sessional period b efore the resum ption o f n egotiation s at C O P 6 (part II). T h is text in clu ded both an overview o f the p ack ag e o f key political questio n s, and detailed com p rom ise text on all asp ects o f the in dividual issu es. Presid en t P ro n k ’s third, and final, P re sid en t’s text on the p ack ag e w as released as m inisters arrived for C O P 6 (part II). The negotiations on the individual issues o f the flexibility mechanism s, com pliance and L U L U C F (and others) each saw differing levels o f input by their presiding officers throughout the textual developm ent process. O n all three issues, however, the presiding officers prepared a C hair’s text to go into C O P 6 on the basis o f inter-sessional consultations (see Tables 11.5,11.6 and 11.7). All these C hair’s texts, however, essentially com prised m ore or less extensive tidying up exercises, that is, aim ed at making the text m ore m anageable, rather than presenting com prom ises on difficult issues. This is not surprising, given that the

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post-Kyoto negotiations were fundamentally negotiations on a package deal, and no com prom ise C h air’s text could have been prepared on one issue without reference to the others. These C h air’s texts on individual issues were therefore very different to the C hair’s texts that were produced either for the Kyoto Protocol negotiations, or for the post-Kyoto negotiations on the package deal. The C h air’s texts prod u ced during the K yoto and post-K yoto negotiations enjoyed differing degrees o f success. Although it was not w ithout criticism , the C h air’s text for the K yoto P rotocol negotiations (see Table 11.3) was widely w elcom ed as a vital contribution to m oving the negotiations forw ard. O ne interviewee even suggested ‘the C h airm an ’s text was really the reason we got a P ro to c o l’ . E str a d a ’s su b seq u e n t p ro p o se d c o m p ro m ise text on certain individual clauses at C O P 3 itself were similarly absolutely critical in bringing parties to agreem ent. The fortunes o f the President’s texts in the post-Kyoto negotiations differed considerably (see Table 11.4). The first President’s text - the ‘N ote by the President’ issued on the penultim ate day o f C O P 6 - in effect precipitated the failure of the session. This failure cannot, o f course, be attributed solely to a docum ent, but many com m entators have stated that the unorthodox approach taken in the preparation, presentation and subsequent handling o f the N ote contributed to the collapse o f the negotiations (see G ru b b and Yamin, 2001; Ott, 2001; Jacob y and Reiner, 2001; E N B , 2000b). The second Presiden t’s text - the ‘C onsolidated N egotiating Text by the President’ prepared for C O P 6 (part II) proved m ore useful, partly because the President’s unusual approach to textual developm ent had now started to sink in. However, this text - including both the overview and com prom ise text on all the issues - was only ever used as a ‘tool’, and never as the actual basis for negotiations. This role fell to the third President’s text - the ‘Core elements for the implementation o f the Buenos Aires Plan of A ction’ prepared at the end o f the first week o f negotiations at C O P 6 (part II). This p roposed com prom ise deal on the package o f key political post-Kyoto issues form ed the basis for the Bonn Agreem ents adopted at that session. T h e experience o f C h air’s texts in the K yoto and post-K yoto negotiations provide several valuable lessons, as discussed below.

H o w far to g o ? T h e main issue when preparing a C h air’s text is how far to go: whether to present a com prehensive com prom ise at one end o f the spectrum , or a sim ple tidying up exercise at the other end. T h e clim ate change negotiations have seen various ap proach es in this respect. At one end o f the spectrum , the C h air’s texts on individual issues in the post-K yoto negotiations consisted m ostly o f (very useful) tidying up exercises, with som e language p ro p o sed by the C hairs on m ore technical issues. At the other end o f the spectrum , the P resid en t’s texts on the overall package deal o f the post-K yoto negotiations, as discussed below, sought to present a com prehensive com prom ise on all key political issues. The C h air’s text in the K yoto Protocol negotiations fell som ew here in the m iddle o f this range. F o r som e, its chief achievem ent w as sim ply to prune previous texts dow n to a w orkable size. The G -77 Chair, for exam ple, in his

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opening statem ent to A G B M 8, expressed adm iration that E strad a had ‘been able to reduce a 200-plus-page com pilation o f pro p o sals sh rouded in a m aze o f brackets into a 25 p age p ro to co l’ (Tanzania, 1997). In doing so, however, Chair E strad a also took a step further in producing clean text, that is, w ithout alternatives, on the less controversial issues, notably on reporting, review, introductory and final clauses, and institutions and m echanism s. E strad a surm ised that, on these articles, o p p osin g views were not strongly held, and parties w ould accept the presentation o f just one option , even if it were not their preferred one. In som e cases, this helped directly to forge agreem ent. An exam ple o f this can be found in the provisions on am ending the Protocol, w here E strad a p rop osed to apply the sam e three-quarters voting majority as in the C onvention in his C h air’s text, rem oving the option o f a two-thirds m ajority that had been su pp orted by A O S IS . A O S IS did not insist, however, on reinserting their tw o-thirds voting majority option, and the issue was thus brough t discreetly to closure. Clearing up less controversial issues in this way w as im portant to ensuring that the final bargaining and deal-m aking stages w ould have the space and tim e to focus on the m ost difficult questions. However, although C h air E strad a brought som e o f the m ore m inor points to closure, he kept the m ajor issues open. W hat he explicitly did not seek to do w as to present a com prehensive com prom ise p roposal. In stead , he retained several square brackets in the C h air’s text as in dicators o f the core issues under negotiation, such as the level o f the quantified target, and w hether to ad op t differentiated or uniform com m itm ents. By maintaining these option s, E strad a sought to ensure that he w ould not be accused o f going too far, and w ould not lose the su p p o rt o f the different sides in the negotiations. O n som e controversial issues w here alternatives were not so clear cut (e.g. joint im plem entation, general com m itm ents for all parties, em issions trading), E strad a did seek to present a clean text which he thought might serve as a com prom ise. T h e success o f this endeavour, however, was lim ited, partly b ecause it w as still too early for parties to con sider such com prom ises. O ne o f the im portant aspects o f the C h air’s text w as also that it derived alm ost all o f its elem ents from previous negotiating texts. D elegates could broadly recognize its structure and contents and, because these were familiar, they aroused less suspicion. T h e draft article that did provoke controversy w as precisely the one that departed significantly from existing proposals, namely that on voluntary com m itm ents. W hile the subject m atter itself was controversial, it can be argued that, if a text m ore in line with existing p rop osals had been included in the C h air’s text, it w ould not have incited either such concern on the part o f developing countries or so m uch critical attention from A nnex I parties (see F C C C /T P /2 0 0 0 /2 ), and might have successfully foun d its way into the final Protocol. A contrast to this ap proach in the post-K yoto negotiations w as the N ote by the President presented on the penultim ate day o f C O P 6. H ere, President Pronk explicitly sought to present a com prehensive com prom ise, in his w ords, a ‘balanced p ack ag e ’, on all issues under the post-K yoto negotiations. N o option s or alternatives were included, only the proffered deal. N eedless to say,

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this w as a risky strategy, given the contentious nature o f the issues and the polarization o f party positions. T h e result w as that the pap er w as alm ost universally rejected for giving too m uch away to the other side - possibly an indicator that it did, in fact, strike the right balance. N oneth eless, it w as the approach o f putting forw ard a com plete com prom ise that m ost parties were unhappy with, and indeed wary of, seeing it as a take it or leave it package. P erhaps the m ost striking feature o f the N ote, however, was its unusual form at and style, using narrative, short hand bullet points, rather than legal text. As O tt (2001, p281) put it: the text w as not written in legal language, but contained political positions. Even if m inisters at the conference had been able to agree on those positions, another m eeting w ould have been n ecessary in o rd e r to tran slate these p o sitio n s into treaty language. T h e N ote w as thus virtually unrecognizable from the existing negotiating texts. Its issuance as a non-paper, rather than an official conference docum ent, also con fused delegates. As G ru b b and Yamin (2001, p268) put it, ‘It w as an approach fam iliar in E urop ean C ouncil m eetings, but baffling to those used to U N negotiations; som e found the jettisoning o f . . . a l l the text they had developed and were fam iliar with - confusing and startling’. M oreover, the N ote included several very interesting, but novel and unpreceden ted, prop osals, which had never b efore been tabled or discussed, and alone w ould have required days o f negotiations. T h ese two significant prob lem s - total abandon m en t o f existing texts and introduction o f m ajor new id eas at the last m om en t - m ean t that the p resen tatio n o f a com preh en sive c o m p ro m ise w as unlikely to su cceed . P re sid en t P ron k ad op ted a different tactic for his two subsequen t P resid en t’s texts for C O P 6 (part II), b asin g these m uch m ore closely on texts w orked on in the negotiations them selves. T h e Core E lem ents paper, in particular, w as based very closely on texts produced in the negotiating grou p s, so that, while it too presented a com prehensive ‘deal’ , it w as accepted as a basis for com prom ise.

G etting the tim in g right C om parin g the experience o f the K yoto and post-K yoto negotiations also highlights the im portance o f timing in the production o f C h air’s texts. In the case o f the K yoto Protocol negotiations, C h air E strad a presented his C h air’s text one full negotiating session b efore C O P 3. T h is w as sufficiently late to have allow ed am ple opportunity for parties to stream line and consolidate their own textual proposals as far as they could, but also gave parties tim e to fam iliarize them selves with the C h air’s text, w ork with it, and m ake it their own b efore the final round o f negotiations at C O P 3. A s one interviewee put it, ‘people had a m eeting to feel com fortable with the text, they thought ab out it in the inter-sessional period, and then w ent into K yoto to have results’ . A nother com m ented: ‘ [it w asn ’t easy to] m anage E stra d a’s text with all its

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com plexities. .. After a while, th o u g h ... we familiarized ourselves with its structure and things becam e a lot clearer.’ In contrast, the first President’s text for the post-Kyoto negotiations was circulated only on the evening of the second to last day of negotiations, less than 24 hours before the scheduled end o f the Conference. Even assum ing an extension o f the deadline to Saturday lunchtime, there were only 40 or so hours physically available for negotiators to work on it. This was simply insufficient time to brok er a com plex deal, especially on such an unprecedented type o f document. Because the President’s N ote came out so late, President Pronk presum ably felt obliged to present a completely clean text, rather than one that retained a few options. However, precisely because it was so late, delegates saw the com prom ise text as an imposition upon which there was no time to improve.

The process of preparation The process of preparing a C h air’s text is also very important. The C h air’s text in the K yoto P rotocol n egotiation s w as p rep ared after con siderab le consultation, including an E xpan d ed Bureau meeting convened specifically to review a draft o f the text, private consultations between Chair E strada and other trusted delegates (including on the margins a meeting o f organized by Ja p a n in Tokyo), and extensive d iscussion s betw een E strad a and the secretariat. Indeed, the secretariat played a m ajor role in preparing the text, producing the first draft o f all but a handful of articles, and working closely with E strada to prepare the final version. The E xpan d ed Bureau meeting was o f particular im portance, helping to forge a sense o f ownership o f the text am ong those parties that would be m ost likely to challenge it so that they w ould be more inclined to look favourably upon the final version. Moreover, some changes were proposed at the meeting that helped to move the negotiations forward. For exam ple, Japan and Sam oa let it be known that they were dropping their dem and for a carbon dioxide-only target, thus requiring just the options for a three and six gas target to be covered in the text. Once the Chair’s text had been drafted, Chair Estrada provided a briefing to each major coalition and N G O s immediately before A G BM 8 (the other subsidiary bodies were meeting at that time), explaining and justifying the approach to, and contents of, the text, and hearing any concerns raised by delegates. This was key to harnessing support for it. N ot only did his briefing help delegates to understand better the motivations behind the structure and contents of the text, it also generated goodwill, particularly among less powerful parties, who were appreciative of his efforts. Zimbabwe, for example, speaking for the African G roup at the opening o f A G B M 8, commended Estrada ‘for [his] efforts, and the tim e . . . put in informal consultations with many p arties. . . in trying to explain the rationale behind the negotiating text’ (A G BM 8 , 1997c). Preparation o f the C h air’s texts on the individual issues in the post-Kyoto negotiations, notably the C h air’s texts prepared for C O P 6, followed a similarly consultative approach, as they were drafted pursuant to inter-sessional informal consultations.

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The preparation of the N ote by the President at C O P 6 was very different. In this case, the N ote was prepared alm ost entirely by the C O P President’s Dutch team; there were no rounds o f informal consultations or, as far as can be ascertained, extensive bilateral meetings, except with the ministerial Co-Chairs of the negotiating groups, and maybe a handful of trusted colleagues. Even the secretariat was not closely involved in the preparation o f its substance. President Pronk presum ably decided to keep his text specifically under wraps as it was being prepared, and not to consult on it. This meant it enjoyed no ownership when it came out - indeed, it had to contend with the considerable surprise o f delegates at its approach - and faced a greater chance of rejection. Perhaps learning from this experience, the next President’s text issued by President Pronk - the Consolidated N egotiating Text for C O P 6 (part II) - was circulated and discussed in advance o f the session at an open-ended meeting attended by over 350 delegates (see Box 9.1). This no doubt contributed to the more favourable reception of the text at C O P 6 (part II) itself.

W o r k i n g with the Chair's text Once a Chair’s text is published, the next important step is what to do with it. This is, o f course, closely related to timing. In the case of the Kyoto Protocol negotiations, parties had time to work with the Chair’s text at A G B M 8, with Chair E strada urging delegates not simply to add square brackets and old language back into the text. H is approach was largely successful. Brackets or footnotes recording objections and additional text were inserted, but in no case was text simply lifted out o f previous negotiating texts and added straight back in. The outcom e o f A G BM 8 was therefore a larger text, som e six pages longer, but it was a considerable achievement that it did not swell to a much greater size. As one interviewee put it, ‘if ...y o u throw out 150 points, people inevitably, when you bring it to the p len ary ... will say you missed this point or th a t. . . but even then if you just build in five points, you’ve got a bonus o f 145’. The revised text that emerged from A G B M 8 was forw arded for final negotiation at C O P 3. E strada therefore allowed parties themselves to prepare their own text for the final negotiations at C O P 3, but based on a more m anageable foundation. H e explained this approach in his final statement to A G B M 8 as follows: I did try to bring to you a proposal [the C h air’s text] that was something in the m iddle o f the road, something that will facilitate different positions to com prom ise, something that will help the understanding o f different parties. And I ’m satisfied with that; that was my task. The paper produced here [the revised text] has a different approach. It is the approach o f people negotiating, trying to preserve positions on one side or another. I don ’t think this is bad, actually it is part o f the process, it is an instrument we need to progress, in the same way we need the instrument in between (A G BM 8, 1997e, em phasis added). Again, the contrast with the treatment o f the N ote by the President is a stark

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one. In this case, having circulated his P resid en t’s text, President Pron k invited parties to subm it written am endm ents on it. This en couraged parties to sim ply spend tim e identifying flaw s in the docum ent that they w anted to am end, rather than negotiating on it. A s G ru b b and Yamin (2001, p268) stated: no one knew how to com m ent on a presidential com prom ise text in a few hours w ithout resorting to national positions. T h e net result w as that the main grou p s spent the final official day o f negotiations preparing written am endm ents to try to drag the new text b ack to their preferred positions - the exact opp osite o f w hat they should have been doing by this stage. In com m enting on the N ote, parties show ed a sim ilar lack o f self-restraint as they did in the negotiations on the flexibility m echanism s; the volum e of written com m ents w as m assive, and it is essentially under these that C O P 6 drow ned.

The final n e g o t i a t i n g texts In every negotiation, there com es a crunch point when it is clear to delegates that the en dpoint has been reached, and a deal m ust b e struck (or aband on ed). T h e negotiating text that the deal-m aking arena (see C h apter 9) has b efore it at that point is crucial. M ost importantly, the text should faithfully codify all the deals and agreem ents reached to date, presenting familiar, alm ost entirely clean text, and only a small num ber o f square brackets or alternative paragraph s denoting key outstandin g issues. T h e aim is to focus the m inds o f negotiators (often m inisters) solely on these issues, w hose resolution will lead to the final com prom ise. A go od exam ple is the final deal-m aking round o f the post-K yoto negotiations on com pliance at C O P 6 (part II). H ere, agreem ent had been reached on the P resid en t’s text - the C ore E lem ents pap er - presented by the C O P 6 President, except for the section on com pliance. A fter extensive shuttle diplom acy (see C h apter 9), disagreem ent was w hittled dow n to just two points. T h ese were codified into a final draft text on com pliance, com po sed o f just a single page and two sets o f brackets, issued as a non-paper. This provided a sim ple and effective tool for negotiators, who could put all other issues out of their m inds. A greem ent w as reached in a ‘frien ds’ group b ased on that text. A sim ilar case occurred at C O P 3, where the negotiating text going into the final m eeting o f the Com m ittee o f the W hole on the last day o f the C onference w as clean, except for two alternatives in the d raft article on general com m itm ents for all parties and the absence o f any num bers in the annex listing targets. Although not all the rem ainder o f the text had been agreed, the fact that it w as issued as a clean docum ent m ade it politically m ore difficult for parties to object to any part o f it, unless they had very serious objections. This greatly sim plified the final round o f negotiations. The contrast with C O P 6 (part I) is clear. H ere, the P resid en t’s friends group, serving as a deal-m aking arena, w as faced with a P resid en t’s text - the

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N ote by the President - as a final negotiating text. The fact that its style and approach , along with m uch o f its contents, represented a departure from previous negotiating texts, and that alm ost none o f it had therefore been agreed, m eant that it could not serve as an effective tool for facilitating agreem ent. An im portant feature o f final negotiating texts is that they are alm ost always issued in English only, due to lack o f time for translation. T h is inevitably places non-A nglophone parties at a disadvantage. Although they are not being asked to form ally ad opt a decision - that will occur in plenary with a translated docum ent - they are being asked to strike a deal, which it will then be extrem ely im p olitic to renege upon . O f co u rse, by this stage in the negotiations, the obstacles faced by non-A nglophones are m ore fundam ental; even if final negotiating texts w ere translated, the negotiations w ould still be conducted exclusively in English (see C h apter 7). A lthough this state o f affairs is generally tolerated by non-A nglophone parties, it can prove problem atic. O ne o f the concerns o f the Russian Federation that delayed form al adoption of the Bonn Agreem ents at C O P 6 (part II) w as that the final deal on com pliance had been struck based on a docum ent only in English (see C h apter 9). A sim ilar issue arises with the status o f docum en ts used as final negotiating texts. In the K yoto Protocol negotiations, the final text considered in the com m ittee o f the w hole on the last night o f C O P 3 was issued as a C R P This m eant that, although inform al, the docum ent did enjoy official status, being m ade widely available, including on the internet, and kept in the secretariat and U N archives. H ow ever, the post-K yoto negotiations have seen a tendency tow ards the greater use o f n on -papers as final negotiating texts. T h e C O P 6 N ote by the President w as issued as a non-paper, as w as the C ore Elem ents p ap e r at C O P 6 (part II) and the final com pliance text. With the exception of the C O P 6 N ote by the P resident, which w as later appen ded to the C O P 6 report, the other docum en ts were not m ade widely available, and are no longer easily accessible. T h e problem is a w ider one relating to non -papers, which are used extensively in the intensive b argain in g and deal-m aking stages of negotiations. T h is raises im portant issues o f transparency, as it is difficult for outsiders, or indeed future analysts, to scrutinize the final steps taken tow ards reaching a deal. It can also have im plications for any future interpretation of decisions taken, as the textual history will be incom plete. H istorical analysis of the negotiations on the C D M , for exam ple, one o f the m ost far-reaching articles in the K yoto Protocol, is alm ost im possible, as its negotiations took place virtually entirely behind closed doo rs using non-papers.

S u m m a r y a n d c on c l u d i n g r emarks A key underlying m essage o f this chapter is the im portance o f texts as a tool for the negotiations. Texts do not only reflect the status o f negotiations, but can also help m ove the p rocess forw ards. They can do this in two main ways. Firstly, by codifying progress so that it becom es real. Through negotiations based on texts, agreem ent is built up and solidified as language is painstakingly

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approved w ord by w ord, com m a by com m a. Secondly, texts can serve as an indispensable tool to actually facilitate the w ork o f negotiators. G iven the com plexity o f the clim ate change negotiations, there is a great need for clear and m anageable negotiating texts that are able to capture the state o f play and highlight outstanding issues and options, thereby helping negotiators to focus their m inds on the key questions requiring their attention. O therw ise, negotiators can often w aste time sim ply trying to m ake sense o f the text and the ideas expressed therein. A carefully m anaged textual developm ent p rocess can also be critical in countering the inherent tendency o f n egotiators to procrastinate (see C h apter 12), encouraging delegates to progress from exploration to bargaining to dealm aking. A key factor in the p rocess is the balance the presiding officer and secretariat have to find betw een caution to maintain the acceptability o f texts, and boldness to advance the negotiations. It is very im portant that the textual developm ent p rocess keep moving forw ard, and for each negotiating text to represent an appreciable advance on the last. The chapter also underlines the im portan ce o f a judicious C h air’s text in intensifying bargaining and launching deal-m aking. W hile a w ell-judged and w ell-tim ed docum ent can help propel negotiations to agreem ent, a text that is ill-judged, late, or indeed too early, can literally bring negotiations to a halt. Like other elem ents discussed in this book, it seem s that the key is finding a balance betw een prudence and innovation - putting forw ard proposals that help m ove negotiations on to a new stage, yet respecting the b ou n ds o f w hat is known, and familiar, and can be w orked with.

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Table 11.3 T extu al development o f the Kyoto Protocol negotiations Type o f d o c u m e n t / t it le a n d s y m b o l

Com m ent

Raw material Written proposals from parties

Over 430 pages of M IS C d ocum ents

Precursor texts Synthesis of proposals by parties (FCCC/AGBM/1996/10)

Prepared for A G B M 5 in late 1996. Provides a narrative synthesis of proposals, indicating proponents.

Fram ew o rk compilation of proposals by parties for the elements of a protocol or a nother legal instrument (FCCC/AGBM/1997/2 and Add.1)

Prepared for A G B M 6 in early 1997 Reproduces proposals verbatim under c o m m o n headings, indicating pro pon ents

N e g o tia t in g texts Report of the A G B M on the w o rk of its sixth session: Proposals for a protocol or a nother legal instrument (FCCC/AGBM/1997/3/Add. 1)

Prepared for A G B M 7 in mid-1997. Includes mostly legal language, and no lo nger indicates proponents. Prepared by consolidating the fram ew ork compilation at A G B M 6. 129 pages.

Report by the Chairs of the informal consultations conducted at A G B M 7 (FCCC/AGBM/1997/IN F.1)

O utco m e of w o rk at A G B M 7. Issued as an INF (therefore with lower status) to en co urage parties to focus on the forthcom ing Chair's text. 82 pages

Chair's text Consolidated negotiating text by the Chairm an (FCCC/AGBM/1997/7)

Prepared for A G B M 8 in late 1997. Sets o ut c om prom ise la n g u a g e proposed by Chair Estrada on m ore technical points. Retains options on key political issues. 26 pages

Further final n e g o tia t in g texts Revised text under negotiation (FCCC/CP/1997/2)

O utco m e of w o rk at A G B M 8 based on the Chair's text. Forwarded to COP 3. 32 pages

N o n-pa pe r by the C hairm an of the C omm ittee of the W h o le (FCCC/CP/1997/CRP.2)

Issued at the end of the first w ee k of C OP 3 to inform ministers o f the status o f negotiations. 29 pages

Untitled (FCCC/CP/1997/CRP.4)

Issued on the penultimate day of COP 3. Included a first draft of individual emission targets. 24 pages

Final draft by the Chairm an of the C omm ittee of the W h o le (FCCC/CP/1997/CRP.6)

Final deal-m aking text issued on the last day of COP 3. A virtually clean text, except for a handful of key political issues. 24 pages

Kyoto Protocol to the United Nations Fram ew ork C o nvention on Climate C h an ge (decision 1/CP.3). 25 pages

Texts

167

T a b le 11.4 T extual development on the package o f key political issues in the

post-Kyoto negotiations, resulting in the Bonn A greem ents' Type o f d o c u m e n t / t it le a n d s y m b o l

Com m ent

Raw material None

Precursor texts N o n - p a p e r from the Presidentd esign ate of C O P 6 (FCCC/Non-paper, 2000a)

Prepared for th e President's informal high-level consultations (M u id e n, O cto be r 2000). First a ttem pt at b rin g in g all the key political issues on the postKyoto a g e n d a to g e t h e r in one text

N o n - p a p e r from the President of C O P 6 (FCCC/Non-paper, 2000b)

Prepared for the inform al high-level consultations held on the middle S u n d a y of C O P 6. Later circulated to all parties. S u m m a rize s state of play

Note by the C o -C ha irm en of the n e g o tia tin g g r o u p s (FCCC/CP/2001/CRP.8)

Prepared du rin g C O P 6 (part II). S u m m a rize s the state of negotiations, listing the main choices on the key political issues

N e g o t i a t i n g texts/chair's te x ts2

Released on the penultim ate day of C O P 6 (part I). Sets o ut in conceptual term s President Pronk's proposed c o m pro m ise on all key issues on the p o st-Ky o to a ge nda . U nu su al approach and style.

Note by the President of the COP (Initially issued as a n o n -p a p e r (FCCC/Non-paper, 2000c) then ann exe d to decision 1/CP.6) C o nso lid a ted n e g o tia tin g text prepared by the President (FCCC/CP/2001/2 and A d d . 1-6)

Prepared for the start of COP 6 (part II) by President Pronk. Presents a pro po sed deal on the key political issues, plus full co m p ro m ise texts in legal la n g u a g e on all issues on the po st-Kyo to agenda. Used as a tool for n e go tia tio n s at C O P 6 (part II)

Core ele m ents fo r the im p lem en tatio n of the B u e n o s Aires Plan of Action (issued as no n -p a per)

Prepared du rin g C O P 6 (part II). C om p rises a p ro p o se d c o m pro m ise by President Pronk in legal la n g u a g e on the key political issues on the postKyoto age n d a. Form ed basis for final d ea l-m a k ing

The B on n A g r e e m e n t s on the im p lem en ta tio n of the B u e n o s Aires Plan of Action (decision 5/CP.6). 15 pages Note:

The texts listed in this table are in addition to the separate texts issued on in d iv id u a l issues in th e p o s t- K y o to n e g o tia tio n s . The textual d e v e lo p m e n t o f th e flexibility mechanisms, com pliance and LULUCF is set o ut in Tables 11.5 to 11.7. Note: 1 All n e g o tia tin g texts w ere issued as Chair's - in this case President's - texts.

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T a b le 11.5 T extu al development on the flexibility m echanism s in the post-

K yoto negotiations, resulting in the M arrakesh Accords Type o f d o c u m e n t / t it le a n d s y m b o l

Com m ent

Raw material Written proposals from parties

Over 740 pages of M IS C do cu m e nts (from COP 4)

Precursor texts Synthesis of proposals from Parties (FCCC/SB/1999/INF.2 and A d d . 1-3)

Prepared for SBSTA/SBI 10 in mid-1999. Collates proposals to g eth er under c o m m o n headings, indicating proponents. English only, except for glossary of terms in all UN lan guages

(Revised and consolidated) Synthesis of proposals from Parties (FCCC/SB/1999/8 and Add.1)

Prepared for SBSTA/SBI 11 in late 1999. Revises the earlier text, including new proposals, square brackets and mostly legal la n g u a g e

N e g o tia t in g texts

Prepared for SBSTA/SBI 12 in mid 2000. Goes further in m erging proposals and using square brackets. Proponents still indicated. 134 pages

Text for further negotiation (FCCC/SB/2000/3) Consolidated text (FCCC/SB/2000/4)

Prepared for SBSTA/SBI 13 (part I). O utco m e of negotiations at SBSTA/SBI 12, including deletion/merging of proposals, and some text proposed by the Chairs. Proponents n ot indicated. 118 pages

Consolidated text (FCCC/SBSTA/2000/10/Add .1)

O utco m e of SBSTA/SBI 13 (part I). 162 pages

Chair's texts Text by the Chairs (FCCC/SB/2000/10, A d d . 1-4)

Prepared for COP 6, based on previous text and inter-sessional consultations. Further merging/consolidation of proposals by Chairs. 83 pages

Consolidated negotiating text prepared by the President (section on flexibility mechanisms) (FCCC/CP/2001/2/Add.2) (see Table 11.4)

Proposed com prom ise text on all aspects of the flexibility mechanisms prepared by President Pronk for COP 6 (part II). Used as a tool at that session. 38 pages

Further and final n e g o tia tin g texts Texts forw arded by the subsidiary bodies to COP 6 (part I). (FCCC/CP/2000/INF.3 (Vol V))

O utco m e of first w eek of COP 6 (part I). 84 pages

Texts forw arded to the resumed 6th session by C OP 6 (part I). (FCCC/C P/2 000/5/Add.3 (Vol V))

O utco m e of COP 6 (part I). 95 pages

Draft decisions on which progress was noted by COP 6 (part II) and which the COP decided to forward to its 7th session for elaboration, completion and adoption. (FCCC/CP/2001/5/Add.2)

O utco m e of COP 6 (part II), forw arded for final negotiation at C OP 7. 46 pages

Five decisions in final M arrak esh Accords (Decisions 15/CP.7-19/CP.7). 70 pages

Texts

169

T a b l e 11.6 T extu al development on compliance in the post-Kyoto negotiations,

resulting in the M arrakesh Accords Type o f d o c u m e n t / t it le a n d s y m b o l

Com m ent

Raw material Written proposals from parties

O ver 250 pages o f M IS C docum ents (from COP 4)

Precursor texts Elements of a compliance system and synthesis of submissions (FCCC/SB/1999/7 and Add.1)

Prepared for SBSTA/SBI 11 in late 1999. Presents a synthesis of submissions under c o m m o n headings, and a listing of possible elements for a compliance system. Submissions mostly in response to questions issued at SBSTA/SBI 10. Proponents indicated

Note by the Co-Chairs of the JWG (FCCC/SB/2000/1)

Prepared for SBSTA/SBI 12 in mid 2000. Presents proposals under c o m m o n headings, including a simple note where discussion is insufficiently advanced to identify options

Untitled text on compliance (Annex to SBI 12 report)

O utco m e of w o rk at SBSTA/SBI 12. Has characteristics of a negotiating text, but w as not used at any session. Instead, it w a s 'further d ev elo p ed ' by the CoChairs into a new text for SBSTA/SBI 13 (part I) (see below)

N e g o tia t in g texts Proposals from the Co-Chairs of the JW G (FCCC/SB/2000/7)

Prepared for SBSTA/SBI 13 (part I) based on the previous text. Includes legal la n g u a g e and square brackets. 26 pages

Proposals from the Co-Chairs of the JW G (FCCC/SBI/2000/10/Add.2)

O utco m e of SBSTA/SBI 13 (part I). 20 pages

Chair's text Text proposed by the Co-Chairs of the JWG (FCCC/SB/2000/11)

Prepared pursuant to inter-sessional informal consultations for COP 6 (part I). 18 pages

Consolidated negotiating text prepared by the President (on compliance). (see Table 11.4) (FCCC/CP/2001/2/Add.6).

Proposed com prom ise text on all aspects of compliance prepared by President Pronk for COP 6 (part II). Used as a tool at that session. 14 pages

Further/final n e g o tia t in g texts Texts fo rw arded to the resumed 6th session by COP 6 (FCCC/CP/2000/5/Add.3 (Vol IV)

O utco m e of COP 6 (part I). 30 pages

Draft decisions on which progress was noted by COP 6 (part II) and which the C OP decided to forward to its 7th session for elaboration, completion and a doption (FCCC/CP/2001/5/Add.2)

O utco m e of COP 6 (part II), fo rw a rded for final negotiation at COP 7. 11 pages

Decision in final M arrakesh Accords (decision 24/CP.7). 13 pages

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T a b le 1 1 .7 T extu al development on L U L U C F in the post-Kyoto negotiations,

resulting in the M arrakesh Accords Type o f d o c u m e n t / t i t l e a n d s y m b o l

Com ment

R aw m aterial Written proposals from parties

O ver 680 p ag e s o f M IS C do cu m e nts (from COP 4)

Precursor texts List of policy and procedural issues related to Article 3.3 and 3.4 (FCCC/SBSTA/1999/5)

Prepared for SBSTA/SBI 10. Narrative o verview of the issues based on subm issions

C o nso lid ated synthesis of pro posals m ade by parties (FCCC/SBSTA/2 000/9)

Prepared for SBSTA/SBI 13 (part I), fo llo w in g request at S BSTA 11. C o m p ilatio n of party subm issio ns un der c o m m o n headings. Pro ponents indicated. No consolidation. No square brackets

N e g o t i a t i n g text R e c o m m e n d a tio n by the SBSTA (FCCC/SBSTA/2 000/10/Add. 2)

O u t c o m e of SBSTA/SBI 13 (part I). Legal la n guag e. Square brackets. 14 pages

Chair's texts Text by the Chair (FCCC/SBSTA/2 000/12)

Prepared pu rsuant to inter-sessional inform al consultations for C O P 6 (part I). 12 pages

C o nso lid a ted n e g o tia tin g text prepared by the President (section on LULUCF). (see Table 11.4) (FCCC/C P/2 0 01/2/Ad d. 3/R e v. 1)

Proposed co m p ro m ise text o n all aspects of LULUCF prepared by President Pronk for C O P 6 (part II). Used as a tool at that session. 6 pages

Further/final n e g o t ia t in g texts Texts fo rw a r d e d to the resum ed 6th session by C O P 6 (FCCC/C P/2 000/5/Add. 3 (Vol IV)

O u t c o m e of C O P 6 (part I). 11 pages

Draft decisions on which progress was noted by COP 6 (part II) and which the C O P decided to fo rw ard to its 7th session for ela boration, com pletion and ad o p tio n (FCCC/C P/2001/5/Add.2)

O u t c o m e of C O P 6 (part II), fo rw a rd e d for final n e g o tia tio n at C O P 7. 9 pages

Decisions in final M a rra k e s h Accords (1 1/CP.7) 9 pages

12

Time M anagement

Chairm an E s t r a d a . . . after stressing over and over again the extraordinary am ount o f b usin ess to b e got through in such a short time, prom ptly adjourn ed the session after little m ore than an hour (E C O , 1995).

I nt roduct ion Th e efficient m anagem ent o f time is a critical dim ension to the organization of any n egotiation p ro c e ss, and especially so fo r highly co m p le x glo bal negotiations. W hile the am ount o f time available is, o f course, a consideration, how that time is used is equally, if not m ore, im portant. T h e key task in any tim e m anagem ent exercise is to counter the natural tendency o f delegates to back lo ad n egotiations - to delay the start o f deal-m aking, or even intensive bargaining, until the last possib le m om ent - while at the sam e time m eeting their need to engage in thorough exploration o f the issues in the initial stages. T h e K yoto P rotocol and post-K yoto negotiations provide us with two contrasting and instructive cases in this regard: the K yoto negotiations ended with agreem ent within the deadline at C O P 3 in 1997 at the very last minute, while the post-K yoto negotiations basically ran out o f time at the scheduled C O P 6 finale, having to go through two further finales b efore finally striking a deal at C O P 7 in 2001 a year later. Even then, it w as only at C O P 9 in 2003 that the full slate o f issues un der the post-K yoto negotiations w as finally resolved. T h is ch ap ter e x p lo re s the issu e o f tim e m an agem en t, co m p arin g the experien ces o f the K yoto and post-K yoto rounds. It first discusses the am ount o f tim e available to both negotiating rounds, before considering how that time w as used and how time m anagem ent tools w ere w ielded. The chapter concludes by discussing the im plications o f ‘negotiation by exh au stio n ’.

D u r a ti o n T h e K yoto Protocol negotiations took place over a period o f 32 m onths, from the ad option o f the Berlin M andate in April 1995 to the adoption o f the K yoto P rotocol in D ecem b er 1997. The negotiating body, the A G B M , met

172

The O rgan ization o f G lo b a l N egotiation s

eight tim es w ithin this perio d , plu s the h alf-day resu m ed session im m ediately b efore C O P 3. W ith C O P 3 itself, this m ade up a total o f nine m eetin gs. A review o f oth er recent en viron m ental n egotiation s (see T able 12.1) su gg ests that the duration o f the K yoto P ro to co l n egotiation s w as neither particularly lon g n or short, falling roughly in the centre o f the w ide ran ge o f n egotiatin g tim e span s. T h e intensity o f the p ro c e ss, however, w as n otab le, with a high ratio o f m eetings relative to the d uration o f negotiation s. T a b le 12.1 Com parison o f duration with other environm ental negotiations N e g o t ia t io n

D u r a t i o n in m o n t h s

M e e t in g s

UNFCCC

17 ( D e c e m b e r 199 0 to M a y 1992)

6

K y o t o P ro to co l

32 (A p ril 19 95 to D e c e m b e r 1997)

9

Bonn A g re e m e n t s and M a rrake sh Accords

24 (Initial d e a d lin e ) ( N o v e m b e r 199 8 to N o v e m b e r 200 0) 32 ( A d o p t i o n o f B o n n A g r e e m e n t s ) ( N o v e m b e r 1 99 8 to July 20 01) 36 ( A d o p t i o n o f M a r r a k e s h A cco r d s ) ( N o v e m b e r 199 8 to N o v e m b e r 200 1)

5

S t o c k h o l m C o n v e n t i o n on Persiste nt O r g a n i c P o l lu t a n ts

30 (June 1 99 8 to D e c e m b e r 200 0)

C a r t a g e n a B io s a fe t y Pr o to c o l 39 (Initial d e a d lin e ) ( N o v e m b e r 199 5 to F e b r u a r y 1999) 50 ( A d o p t i o n ) N o v e m b e r 199 5 to J a n u a r y 2 00 0) F r a m e w o r k C o n v e n t i o n on Tobacco Control

33 ( M a y 2 0 0 0 to F e b r u a r y 2 00 3)

6 7 5 6

7 6

A lth ough the K yoto P ro to co l n egotiation s w ere co n clu d ed w ithin the dead lin e, they did p ro d u c e a co n sid erab le am oun t o f unfin ish ed b u sin e ss in clu ding the details o f the flexibility m ech an ism s, p rovisio n s on the L U L U C F sector, the com pliance system , and rep ortin g and review m eth od o logies - w hich then m ad e up the p o st-K y o to n egotiatin g agen da. T h e existen ce o f un finished b u sin e ss at the close o f a n egotiation is not un u su al an d is often part and parcel o f the con tin u ou s negotiation p ro c e ss at w ork in m any environ m ental regim es. W hat is u n u su al in the case o f the K y oto P ro to co l, however, is that its un finished b u sin e ss affected the effort required o f p arties to m eet its em ission targets to such an exten t that m ost A n n ex I p arties, the key players in the regim e at this stage, delayed their ratification o f the P ro to c o l until a deal w as reach ed in the p ost-K y o to follow -up n egotiation s three-and-a-half years later. It is unlikely, however, that m ore tim e w ould have en ab led the resolution o f (m ore of) the P ro to c o l’s unfin ish ed b u sin e ss b e fo re the treaty’s ad o p tio n . O n the contrary, attem p tin g to resolve m ore details through a lon ger p ro c e ss w ould h ave in cre ase d the c o m p le x ity an d o p p o rtu n ity fo r d isag re e m e n t and ob stru ction , p e rh a p s threaten ing the ad o p tio n o f the P ro to co l itself. O n e interview ee, w ho b egan by arguin g that a single extra m eeting m ight have resolved certain qu estio n s, en ded up querying:

Texts

173

but having said th a t...w o u ld it have come together? Would other things not have intervened? Could we have had other questions? This m orass of details . .. Oh, my goodness, throw up your hands, we can’t get there. The exception concerns the specific issue o f sinks (the L U L U C F sector), where some interviewees argued that an earlier start to the negotiations on that issue, which did not really get going until A G B M 8 in late 1997, might have produced a better result.1 The Kyoto negotiations thus implicitly initiated a two-stage process. The political deal and basic structure o f the Protocol were first agreed in Kyoto, followed by a second stage of negotiations on the implementation details o f the Protocol in the post-Kyoto round. The more detailed work carried out as part of the post-Kyoto negotiations was arguably only possible based on the broad political agreements reached in Kyoto. As one interviewee commented: A lot o f the things we did resolve in Kyoto were political and I think that the details could only be done once you got the political decisions out o f the way. So even if you had another two years to do it, you w ouldn’t have got any further forw ards. You would have had to resolve the political decisions first. The initial deadline for the subsequent post-Kyoto negotiations allowed for two years of negotiations - from C O P 4 in N ovem ber 1998 when the Buenos Aires Plan o f Action was adopted, to C O P 6 in O ctober/N ovem ber 2000 - with a total o f five (initially only fo u r - s e e below) negotiating sessions. The deadline o f C O P 6 and the small num ber o f meetings was, with hindsight, excessively optimistic, and m ade for an extremely tight schedule for reaching agreement on the wideranging post-Kyoto agenda. It was set with (laudable) political intentions, that is, to enable countries to ratify the Protocol and for it to enter into force as soon as possible. A time span o f two C O P s seemed appropriate - the negotiations on the Kyoto Protocol had similarly been launched at C O P 1, with a deadline of C O P 3. However, the great technical work and, more importantly, evolution of understanding that was needed on the unprecedented issues raised by the Protocol meant that two years and four/five m eetings was unrealistic; negotiation o f the Kyoto Protocol itself had required more than double the planned num ber o f negotiating sessions. The small num ber o f negotiating sessions was com pensated for to som e extent by the proliferation o f w orkshops but, as discussed in Chapter 10, these were not fully inclusive and could not actually engage in bargaining or take any decisions. On the technically highly com plex issue o f L U L U C F, for exam ple, it was not until May 2000 that the IP C C produced its landm ark Special Report on L U L U C F (IP C C , 2000) requested at C O P 4 (and that was a remarkably quick delivery), leaving only five months and two negotiating sessions to study the docum ent before the C O P 6 deadline. This meant that the bulk o f proposals from parties on L U L U C F were received in just the three months before C O P 6 (see also Chapter 11). On the flexibility m echanism s, there was a real need

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The O rganization o f G lo b al N egotiations

for parties, especially developing countries, sim ply to un derstan d the basic concepts that were being discussed and to gain ow nership o f those concepts b efore real negotiations could start. It is w orth recalling that the negotiations on the flexibility m echanism s were attem pting to create entirely new m arkets and econom ic system s, the likes o f which can only be com pared to the trading architecture under the W T O , which took decades to design. W here the deadline w as least realistic w as for the reporting, review and accounting provisions; clearly, reporting and review guidelines could only be finalized once the substan ce o f com m itm ents w as known. Logically, a C O P 6 deadline for provisions on L U L U C F and the flexibility m echanism s, for exam ple, sh o u ld have been ac co m p an ie d by a C O P 7 d ead lin e fo r rep ortin g requirem ents on this sector. H ow ever, in an attem pt to sustain political m om entum after K yoto, the timeline w as sim ply not thought through when it w as set at C O P 4, and C O P 6 becam e the universal deadline. Interestingly, the actual date o f C O P 6 was not confirm ed until C O P 5. This was because certain parties w anted to delay the C O P until early 2001, after the U S Presidential election, at which point it w as deem ed that the U S w ould b e in a better position to take decisions. O th er parties, however, notably the G -77 and China, preferred to adhere to the strict letter o f the Convention, which requires an annual session (albeit ‘unless otherw ise d e cid e d ’ - Article 7.4). D ecidin g to hold C O P 6 in 2000 w as seen by many at the time as a signal o f determ ination to forge ahead with the im plem entation o f the Convention and the P rotocol (E N B , 1999). H ow ever, as well as leading to uncertainty over the nature o f the U S adm inistration, the 2000 deadline m eant one less negotiating session. G row in g concern over lack o f time led delegates to agree to convene what am ounted to an extra negotiating session - S B S T A /S B I 13 (part I) in Septem b er 2000. T h is w as m ade possib le within the allotted b u d get due to extra money from don ors, the offer from Fran ce to host the session and, very importantly, cutting one week o f interpretation time from the scheduled session o f S B S T A /S B I 12 in Ju n e 2000 and allocating it to S B S T A /S B I 13 (part I). T h is w as an extrem ely innovative response to the need for m ore time: the first w eeks o f S B S T A /S B I 12 and S B S T A /S B I 13 (part I) were sim ply designated as a series o f ‘inform al w ork sh op s’, that is, con ducted through in fo rm al m eetin gs w ith out in terp retatio n , b u t in effe ct allow ing the continuation o f negotiations across an extra two weeks. Fam ously, however, agreem ent was not reached at C O P 6. O ne m ore negotiating session - C O P 6 (part II) - was needed to strike a deal on the Bonn Agreem ents, and a second - C O P 7 - w as needed to reach agreem ent on the m ore technical details o f the M arrakesh A ccords. T h e political dim ension of the supp osed ly m ore ‘technical’ post-K yoto negotiations becam e alm ost as acute as the supp osed ly m ore ‘political’ negotiations on the K yoto Protocol itself that had preceded them. This suggests that there is rarely any such thing as a purely ‘tech n ica l’ n egotiation . T h e p o st-K y o to n egotiation s w ere eventually resolved through their own tw o-stage process: first the political deal w as struck at C O P 6 (part II) with the Bonn Agreem ents, allow ing, secon d, the m ore technical aspects o f the negotiations to conclude based on that deal with

Tim e M anagem ent

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the M arrakesh A ccords. This was not the intent at the start of the post-Kyoto negotiations, but rather a deliberate strategy by C O P 6 President Pronk to sequence the finale o f the negotiations in this way, once he surm ised there w ould be insufficient time to resolve the whole swathe o f issues under negotiation.The deliberate separation of the political from the technical in this way proved problem atic at C O P 6, largely because it was an approach unusual to the climate change delegates. Nevertheless, once the approach had been understood, it proved more successful for C O P 6 (part II). Sequencing decisions on (more) political and (more) technical questions over successive time periods - so key political issues are identified and resolved first, providing the basis for subsequent more technical discussions - can provide a means of m anaging the intricacies o f very com plex negotiations.

The use of time The wide variation in the duration of negotiations shown in Table 12.1 suggests that, beyond a reasonable point, the am ount of time available to a negotiation is less important than how that time is used. As Kaufm ann puts it: it is not possible to establish an automatic and generally valid causal relation between the length o f a conference and its degree o f su ccess or failure. W hat can be said is that the C h airm an . . . and the delegates should have a clear idea how to organize their work in terms of the available time (Kaufm ann, 1989, p52). A key dimension to the effective use of time in any multilateral negotiation is to address the propensity for parties to backload negotiations, in other words, to hold off intensive bargaining and deal-making until the last possible moment. This is a deep-seated tendency among negotiators at all levels (e.g. see Kaufmann, 1989; Fisher et al, 1992; Illich, 1999). As one interviewee commented: things go very slowly when we still have a lot of time. When we approach a deadline, the discussion accelerates. .. and we finish in the last days at m idn igh t. .. I don ’t like it, but I ’m afraid it is so. The backloading o f negotiations is essentially a feature o f brinkm anship; parties putting o ff m aking concessions as long as possible, in the hope that others will back down first. A ccording to one interviewee, ‘they [the negotiators] will trade in their chips at probably the latest possible time in the hope that it will maxim ize the benefit they can extract from it’. N egotiators, therefore, are highly reluctant to show much flexibility until the deadline is alm ost upon them. In terms of time m anagement, a negotiation can be crudely divided into three (see also Chapter 2 and Table 11.2): the first stage involving exploration of the issues, the second stage when proposals arc tabled and low-key bargaining

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may get underway, and then the finale, where the bulk o f bargaining takes place and deals are (hopefully) struck. A lthough attention often focuses on the finale, when negotiations are at their m ost intense, the careful m anagem ent o f time prior to that point is also critical, providing the conditions for a successful finale to unfold. A ccordin g to K aufm ann, ‘delegates m ust m ake careful use o f the time available to prepare for the m om ent o f truth, the last days o f the conference when the principal decisions m ust b e taken ’ (K aufm ann, 1989, p52).

The first and seco n d sta g e s In m ost negotiations, the first couple o f sessions are dedicated to exploration o f the issues. T h e A G B M , for exam ple, em barked on an explicit process o f ‘analysis and assessm ent’ for a year betw een C O P 1 and C O P 2. The postK yoto L U L U C F negotiations similarly began by inviting parties to present data and com m issioning the IP C C to p repare a Special Report. The exploration stage can be long, often taking up h alf o f the available m eeting time. This can be frustrating, as little progress in forging an agreem ent is apparently registered. Reaching agreem ent in a global negotiation, however, requires not only substantive bargaining and deal-m aking, but also a preparatory learning process that lays the groundw ork for that bargaining through investigation and study o f the issues, often accom pan ied by considerable posturin g on the part o f delegates. A s one interview ee noted with respect to the K yoto Protocol negotiations, ‘we had to go through two years o f learning, figuring out other p o sitio n s’. Tim e is required sim ply for issues to ripen in the m inds o f parties, even if little substantive analysis actually takes place in the negotiating forum s. M oreover, there is a sense that delegates may need to ‘talk them selves o u t’ b efore bargaining can start. C h air E stra d a explain ed in his interview: ‘we opened the possibility [in the K yoto Protocol negotiations] for p eop le to rep eat thin gs one th o u san d tim es an d get everybody tired, w hich is n e c e ssa ry ... to start w orkin g’. B od an sky m akes a sim ilar com m ent on the Convention n egotiations that is w orth quoting in full: This sparring process, although frustrating to those seeking rapid progress, played a necessary role by giving states an opportunity to voice their views and concerns. They learned about and gauged the strength o f other states’ views. They sent up trial b alloon s and e xplored possib le areas o f com prom ise. Indeed, w ithout this m utual learning process, it is hard to im agine that agreem ent w ould have been possib le (Bodansky, 1993, p475). The need for exploration and learning w as particularly great for the post-Kyoto negotiations, which were faced with a set o f novel issues with com plex implications. Tim e for reflection, study and the exchange o f ideas w as therefore extremely im portant to bring all delegations roughly up to the sam e level simply in terms o f understanding what had been agreed in the Kyoto Protocol, and what issues now needed to be resolved, let alone what the substantive options might be. The various inter-sessional informal w orkshops (see Chapter 10) that took place

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were very important in this respect. The need for exploration is also reflected in the large number of miscellaneous (‘M ISC ’) documents that were issued in 1998, especially on the flexibility mechanisms, representing an outpouring of views and opinions (see also Chapter 11). The second stage o f a negotiation is m arked by the tabling o f proposals and the onset of bargaining. The tabling o f proposals typically takes place through the subm ission of text, which is then published in M ISC s (see Chapter 11). Once proposals have been tabled, bargaining can commence. At first, this bargaining will be tentative, focused on the least controversial issues, or conducted through highly unofficial, informal channels. It will, however, gradually intensify, and may even lead to deal-making on more technical matters as the finale approaches. The most politically difficult questions are rarely the subject o f serious bargaining at this stage, although initial, very informal discussions may take place behind the scenes am ong key players. During the Kyoto Protocol negotiations, for exam ple, a small group o f Annex I parties worked together on em issions trading behind the scenes of the latter A G B M sessions. In addition, secret contacts also began, at the informal consultations hosted by Jap an , on what becam e the CD M . O f course, the sequencing o f stages is rarely clear cut, and stages will often overlap. Exploration o f issues is likely to continue late on into the process as new problem s or opportunities emerge, while som e parties may delay tabling their proposals until the finale is very close and bargaining has actually started. In the Kyoto Protocol negotiations, for exam ple, the US did not table its proposed emission target until the last session o f the A G B M in late 1997. The late tabling o f proposals is not a problem if prom ising new com prom ise ideas are injected into the talks, based on developm ents in the negotiations. It is detrimental, however, if entirely new concepts are put forward when there is insufficient time to consider them, or if the volum e o f late proposals is such that it com plicates the negotiations and im pedes the search for com prom ises. As the negotiations approach their finale, the focus of parties’ efforts should be not on devising and tabling proposals, but on working with existing proposals to try to find integrative solutions.

The finale The finale o f a negotiating round will unfold at the last scheduled negotiating session before the deadline runs out. The finale o f the Kyoto negotiations - C O P 3 - lasted 10 days, while the scheduled post-Kyoto finale - C O P 6 - lasted two weeks, as did the subsequent finales at C O P 6 (part II) and C O P 7. Because of the natural tendency o f parties to backload the negotiation process, most of the bargaining and deal-making will take place only during the finale, however long the previous two stages have been. A ccording to one interviewee, speaking about the K yoto Protocol negotiations, ‘actually before Kyoto nothing happened. The whole Protocol negotiation was just in those two w eeks.’ Even if alm ost all o f the intensive bargaining and deal-m aking is concentrated in the short period of the finale, the groundw ork carried out during the first two stages is crucial to paving the way for a m anageable and

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su ccessfu l finale. W hen the fin ale starts, parties sh o u ld have already m ade the transition from exp lo ratio n an d the tablin g o f p ro p o sa ls to b argain in g, an d be p o ise d to en gage in intensive b argain in g and deal-m akin g from the open in g o f the n egotiatin g session . All the m ain p ro p o sa ls sh o uld b e on the tab le, the b ro ad ran ge o f o p tio n s sh o u ld b e clear, som e o f the less con ten tious issu es sh o u ld have been prelim inarily resolved, there sh o u ld b e a m an ageab le negotiatin g text (see C h ap te r 11), and b ro a d agreem en t should prevail on the structure o f the negotiation p ro c e ss (see C h ap te r 9). T h e finale can then hit the gro u n d running. A com m on featu re o f finales is the way in w hich deal-m akin g on the m ost im p ortan t issu es is typically b ac k lo ad e d until the last night o f the negotiatin g session , often overrun nin g the d ead lin e by a few h ours. In d eed , the last night often con stitutes a stage in the n egotiation p ro ce ss in its own right. It is not su rp risin g that this sh o u ld b e the case; in highly com p lex p ro c e sse s with m any inter-linkages am on g issu es it is im p o ssib le to agree on the final, core political qu estio ns e x c e p t as a p ack ag e, in q u ick su ccession . A m arath on last night is often the end poin t o f a p u n ish in g few days w here b argain in g and deal-m akin g have in ten sified with the ap p ro ach o f the dead lin e, and talks have con tin ued at a gruellin g p ace, often late into the night for days on end (Yam in and D e p le d g e , 2 004). T h is all-too-com m on dim en sion o f the finale h as been term ed ‘n egotiation by e x h au stio n ’ (see O b e rth iir and O tt, 1999). It is d isc u sse d separately in m ore detail below.

T im e m a n a g e m e n t t o o ls A con stan t d an g er in a n egotiation p ro c e ss is that it m ay get stu ck in a particu lar stage - in cessan tly e x p lo rin g issu es, not m akin g the transition to b argain in g, av oidin g deal-m akin g - eith er d u e to the efforts o f ob stru ction ist p arties o r through sim ple p rocrastin atio n and excessive b rin km an sh ip. A s one interview ee ad m itted , ‘ou r one failing as n egotiators is t h a t . . . we som etim es think the p ro c e ss cou ld go on fo rev er’ . It is thus vital for the organ izers o f the n egotiation p ro c e ss - the p resid in g officers an d secretariat - to place constan t p ressu re on p arties to m ove ah ead in the n egotiation s, and to instil dynam ism and m om en tum to offset the n atural p ropen sity to b ack lo ad the negotiation s. T h e organ izers can w ield a n u m b er o f to o ls to this end: • •

• •

use o f rhetoric in verbal and w ritten ad d re sse s, that is, p ush in g parties to ad van ce the n egotiation p ro ce ss exerting leadersh ip to m ove n egotiation s up a gear in p ro c e d u ra l and organ ization al term s, n otably through the convening o f new negotiatin g aren as and prep aratio n o f m ore ad van ced n egotiatin g texts use o f sym bolic b re ak s an d m arkers to signal an in ten sification o f the negotiation p ro ce ss in all o f the ab ov e, talkin g u p , an d ap p ealin g to, the deadlin e.

W e now e x p lo re how tim e w as u se d in the K y oto P ro to c o l and post-K yo to n egotiation s, and in p articu lar how the o rgan izers w ielded the tim e m anagem en t to o ls m en tion ed ab ov e in these tw o very differen t n egotiatin g roun ds.

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T i m e m a n a g e m e n t in t he K y o t o P rot oco l n e g o t i a t i o n s T im e m an agem en t p ro v e d extrem ely im p o rtan t to the K y o to P ro to c o l negotiation s. From the ou tset, C h air E stra d a h ad a g o o d idea o f how the n egotiation s sh o u ld p ro ce ed over tim e, and w hat particu lar ste p s n eed ed to b e taken at w hat tim e in o rd e r to m eet the C O P 3 dead lin e. H is tim e m anagem ent strategy w as h elp ed by early clarity over the d ead lin e and the tim ing o f C O P 3, along with the fact that E stra d a h ad overall respo n sib ility fo r the w hole negotiation process.

T h e first t w o s t a g e s C h air E stra d a used particularly stron g rh etoric in his verb al ad d re sse s throu gh ou t the K y oto P ro to co l n egotiation s to place p ressu re on p arties to ad van ce the n egotiation p ro ce ss. Such p re ssu re w as often e x p re sse d by urging delegates to ‘start n ego tiatin g’, that is, b argain in g, in con trast to ‘repeatin g p o sitio n s’ . E stra d a also pu t p re ssu re on in dividual parties in this way, both through p u b lic statem en ts an d b ilateral con tacts. H e regularly ch ided the U S and Ja p a n for their delay in p ro p o sin g em ission targets, an d even w rote to the E U P resid en cy to urge the E U to p rovid e p ro m p t clarification on how its p ro p o se d b u b b le arran gem en t2 w ould w ork. F rom 1997, E stra d a m ade exten sive use o f negotiatin g aren as an d n egotiatin g texts to push p arties to m ove on from exp loration and initiate bargain in g. F o r exam p le, his exclusion o f N G O s from the in form al n on -grou ps conven ed at A G B M 6 in early 1997, w hich m any delegation s and N G O s co n sid ered prem atu re (see C h ap te r 14), sou gh t to sign al to parties that now w as the tim e to start bargain in g. Similarly, at A G B M 8, E stra d a used late night m eetin gs to raise the tem p o o f the n egotiation s; fo r on e interview ee, ‘late night m eetings w ere im portan t to crankin g up the p re ssu re ’ . T h e p rod u ctio n o f gradu ally m ore ad van ced texts pre cu rso r texts, the n egotiatin g text an d then the C h a ir’s text (see C h ap te r 11) - sim ilarly p u sh ed parties to intensify their w ork. T h e six-m on th rule, w hereby the n egotiatin g text for the P ro to co l h ad to b e circulated at least six m on ths b e fo re its ad o p tio n , w as very im portan t in this regard, p rovid in g a concrete, legal w atersh ed - as well as a useful sy m bo lic b reak - after w hich poin t b argain in g cou ld b e e x p e c ted to com m ence. C O P 2, w hich took place roughly m idw ay in the A G B M n egotiation s, w as b uilt up by the organ izers o f the n egotiation p ro ce ss into an oth er very useful sym bolic b reak . T h e organ izers rein forced the n atural b reak poin t that it pro v id ed by organ izin g a m inisterial ro u n d tab le an d pro m o tin g the G en ev a M in isterial D eclaration w hich, n otw ithstandin g its sh o rtco m in gs, acted as ‘a further im p e tu s’ (F C C C , 2000) to the n egotiation s (see also C h ap te r 8). T h e E xecu tiv e Secretary com m en ted in his closing statem en t to C O P 2 that the ‘political con ten t’ o f the session h ad ‘e x c e e d e d his e x p e c tatio n s’ (E N B , 1996, p l2 ) . In d e e d , although no decision s w ere taken at C O P 2, the session m arked a p ivotal shift in the direction o f the n egotiation s, as the U S declared its com m itm ent to ad o p tin g targets acco m p an ied by em ission s tradin g. T h is, com b in ed with the progressive G en eva M in isterial D eclaration , ad d e d up to a

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very important political statement of the commitment of the vast majority of parties to success in Kyoto. In addition, Chair E strada and the secretariat billed A G B M 4 (taking place during the sam e period as C O P 2) as a session for ‘taking stock and intensifying efforts’ (A G BM 4 report), that is, an opportunity to look back on the negotiations to date and then progress to a more intensive stage. This symbolic break was heavily engineered by the organizers, who succeeded in formalizing it into the A G B M 4 report with the statement ‘the em phasis o f the work o f the A G BM must now move progressively towards negotiation’ (A G BM 4 report, plO). In all their efforts to instil a sense o f urgency in parties, the organizers appealed relentlessly to the C O P 3 deadline. The im portance o f deadlines in generating decisions is recognized in the literature. Zartman and Berman (1982, p l9 5 ), for exam ple, dem onstrate how deadlines ‘tend to facilitate agreement, lower expectations, call bluffs and produce final proposals’. A less positive effect o f deadlines is to push parties to brinkmanship and ‘negotiation by exhaustion’, a problem discussed further below. The C O P 3 deadline for the Kyoto negotiations was, to a large extent, artificially generated and self-imposed. It did not, for example, coincide with a major intergovernmental conference, such as the Earth Summit in 1992, which had provided a politically important deadline for the negotiation of the Convention. Moreover, the wording of the Berlin M andate was quite soft, stating only that the Protocol should be completed ‘with a view’ to its adoption at C O P 3, rather than a stronger statement, such as ‘shall be adopted by C O P 3’. It was therefore critical to the deadline’s authority that it should be continuously reinforced through the actions and words of the organizers of the negotiation process. Almost every A G BM report, for example, made reference to the C O P 3 deadline. Moreover, neither Estrada nor the secretariat ever raised the possibility that the negotiations might fail. In the run-up to C O P 3, the Japan ese delegation privately approached the secretariat to explore possible contingency plans if the Conference failed, to which the secretariat responded ‘we have not thought about contingencies. For us, it is the unthinkable’ (secretariat e-mail, 1997). The Executive Secretary took a hard line on this. A suggestion by an A G BM team member to calculate the costs of reconvening C O P 3 so as to demonstrate how expensive failure would be was rejected on the grounds that, if the possibility of a get-out clause were raised, the imperative of reaching agreement would dissipate. The deadline of C O P 3 thus became unquestioned, with the political necessity of fulfilling it one of the few common goals publicly shared by parties negotiating in good faith. The deadline generated its own momentum, pulling parties to agreement. Its political and public visibility meant that missing the deadline would have been viewed as a political disaster on the international stage, with O E C D governments fearing that they would be held responsible at the national level. Interviewees agreed that the pressure o f the deadline, and the operationalization of that pressure through constant reinforcement, had been critical to reaching agreement. The overall impact of time management during the first and second stages of the Kyoto Protocol negotiation process was thus to help create the conditions that would enable the C O P 3 finale to reach agreement. The negotiation process had

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not stood still throughout the 32-month proccss, but had moved steadily ahead, propelled largely by the actions o f the organizers. By the time C O P 3 started, parties had a m anageable, agreed negotiating text with which to work, and an accepted structure for the organization o f the negotiations; they had got to know one another and built up trust in the production team; they had gradually increased the intensity o f their deliberations and identified the options am ong which they had to choose. Significantly, they had also started to engage in bargaining and clear up som e o f the less contentious issues. N egotiations based on the C h air’s text at A G B M 8, for exam ple, resulted in preliminary agreem ent on many o f the legal clauses and institutional questions, along with the basic fram ework o f reporting and review provisions. Even on m ore controversial questions, substantive bargaining based on the C h air’s text allowed the options facing parties to be m ore clearly defined in the revised text that was forw arded to C O P 3. In som e cases, even if no preliminary agreem ent was reached before C O P 3, much of the language in the revised text w as eventually incorporated into the final Protocol (see F C C C /T P /2 0 0 0 /2 ). The extent to which the organizers o f the negotiation process were able to induce parties to accelerate their bargaining and deal-m aking should not, however, be overstated. Estrada was thwarted in his desire to secure a m andate to prepare a negotiating text for A G B M 6 (the m andate was eventually granted for A G B M 7), the U S still bided its time to announce its proposed targets until A G B M 8, while bargaining on the key questions - the nature, level and timing of targets, flexibility m echanism s, developing country issues - was all backloaded to the negotiation finale o f C O P 3. Nevertheless, where the organizers could m ake a difference - encouraging the production o f a m anageable negotiating text, instilling a sense o f finality with regard to the deadline - judicious time m anagem ent enabled them to do so.

T he finale D urin g the C O P 3 finale, C hair E strad a continued to wield the time m anagem ent tools that he had done in the initial stages o f the negotiations, and ad ded a few extra ones, reflecting the absolute im perative, at this final stage, for the process not to get stuck. E strad a continued to m ake extensive use of rhetoric, seeking to m aintain a sense o f urgency in the m inds o f delegates, and m ake sure they were aw are o f time ticking away. In doing so, he appealed repeatedly to the C O P 3 deadline, em phasizing over and over again that agreem ent m ust - and w ould - be reached by that time. H e also ap pealed to the arrival o f m inisters for the second week, urging parties to have resolved all but the m ost difficult political issues by that time. T h e high level segm ent, taking place in the last three days o f the conference when negotiations are typically at their m ost intense, provided an excellent natural break point for parties to w ork tow ards, then take stock, and subsequently renew their efforts with additional political input from ministers. Another im portant sym bolic m arker was the designation o f a day o f rest - the m iddle Sunday - when no official m eetings at all took place. This was very im portant in providing an opportunity for all those involved in the negotiations -

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including the organizers - to recharge their batteries for the coining difficult final days. It also provided the space for parties to brief their arriving ministers, take stock o f the progress to date, consider their strategies for the com ing days, and even consult informally with allies and adversaries. The rest day thus served as a useful launch pad to the start o f m ore intensive negotiations during the high-level segment. T h rough out C O P 3, C hair E strad a m ade use o f negotiating texts as organ i­ zational tools to raise the tem po o f the process. A s discussed in C h apter 11, he issued three versions o f the evolving negotiating text as conference room pap ers (C R P s), each recording and codifying progress m ade to date, helping tentative agreem ents to becom e perm anent. E strad a also used his C R P s to circulate provocative text on difficult issues, which then spurred parties on to ad dress those issues in a m ore concerted fashion. In the second o f his three conference room p ap e rs (F C C C /C P /1 9 9 7 /C R P .4 ), for exam ple, E strad a circulated a p rop osed list o f em ission targets for each Annex I party. This had the desired effect o f prom pting many o f those parties to speak to E strad a personally about their targets, giving him a m uch better idea o f w hat they could and could not accept. The three conference room papers were also instrum ental in enabling E strad a to achieve a useful sequencing o f the final negotiations, w hereby he explicitly attem pted to deal with ‘seem ingly m ore technical is su e s . . . early on during C O P 3 ’ (F C C C /T P /2 0 0 0 /2 , p37), such as the question o f w hether to ad opt multi-year or single year targets, m eth odological issues and provisions for E ITs. T h ese w ere all agreed in principle - albeit not easily - in the first week o f n e go tiatio n s, and the in clu sion o f c o rre sp o n d in g text in F C C C /C P /1 9 9 7 /C R P .2 - the first o f the three conference room p apers - m ade it much less likely that the agreem ent w ould be reopened. E strad a also placed strong pressure on the contact grou p s on sinks and the E U b u b b le to reach agreem ent at an early stage, as he knew that many Annex I parties could not decide on their targets w ithout know ing the outcom e o f negotiations on these two issues. H e therefore focused negotiating tim e on these issues and, thanks also to the deadlines and verbal exhortation he im posed, both texts were indeed prelim inarily agreed by the start o f the second week. O n several occasion s, C hair E strad a overcam e the tendency for delegates to delay striking deals by sim ply gaveling text through. The draft provisions on review o f com m itm ents, E IT s, and b orrow in g / for exam ple, were gaveled through (or, in the case o f borrow ing, deleted) in this way and then codified into F C C C /C P /1 9 9 7 /C R P 2 , with E strad a stating that they could be revisited later as part o f the package. However, he later strongly discouraged these issues from being reopened. E stra d a’s actions helped to avoid a situation w here all issues including those o f lesser im portance - were b ack lo aded to the second week. This set the scene for a feasible - if very difficult - p rocess o f final dealm aking on the last night o f negotiations. M ost o f the actual drafting w ork had been done by that time, and 90 per cent o f the text already enjoyed prelim inary agreem ent. Only a small am ount o f text - albeit very im portant clauses - was actually changed in the final plenary. It w as basically only a handful o f clear-cut political decisions on the m ost controversial issues that were m ade at the last

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m om en t - n otably w hether o r n ot to in clu de em ission s trad in g, a n d /o r voluntary com m itm ents, a n d /o r the C D M , an d the level o f target fo r each party. T h e p ro c e ss w as still on e o f negotiation by exh austio n - with all its im plication s for transparency, p ro ce d u ra l equity and quality o f the text (see below ) - b ut it w as m an ageable.

T i m e m a n a g e m e n t in th e p o s t - K y o t o n e g o t i a t i o n s T h e first t w o s t a g e s W ith the b en efit o f hin dsigh t, it is clear that the tim e m anagem en t o f the first and secon d stages o f the p ost-K y o to n egotiation s w as p rob lem atic. So m e issu es - n otably com p lian ce and L U L U C F - did follow a relatively coh eren t p ro ce ss p a ssin g through the first two stages o f the n egotiation s - with exploration follow ed by the tab lin g o f p ro p o sa ls, leadin g to a tentative transition to b argain in g - as reflected in the developm en t o f their negotiatin g tex ts (see C h ap te r 11). O th er issu es, n otably the flexibility m ech an ism s an d ad verse effects, ap p e are d to rem ain stu ck at the stage o f exp loration an d tab lin g o f p ro p o sa ls, w ith out any tran sition to b argain in g p rio r to (or even at) C O P 6. N ego tiatin g tex ts either sw elled or stagn ated . O n m ost issu es, there w as a sen se that the p o sitio n s o f p arties b ecam e m ore, rather than less, en trench ed over tim e as C O P 6 ap p ro ach ed . U n official con tacts am on g d elegation s beh in d the scenes, although they o ccu rre d , sim ply did not yield the sam e kin d o f constructive gro u n d w o rk an d p ro m ise o f eventual co m p ro m ise that w as so im p ortan t to the su c c e ss o f C O P 3. G r u b b an d Yam in n ote that ‘w hat w as u n usual ab ou t T h e H a g u e w as the exten t to w hich initial nation al p ositio n s h ard en ed and b ecam e m ore extrem e as the sum m it got nearer. T h is tendency w as exh ib ited by all sid e s ’ (G ru b b and Y am in, 2 001, p2 6 7 ). In ad d ition , the n u m b er o f issu es, o p tio n s and p ro p o sa ls u n d er con sideration m ostly con tin ued to sw ell - rather than stream line - even in the latter m on ths p rio r to C O P 6, at w hich poin t the hon in g dow n and fo cu sin g o f issu es sh o u ld have been underw ay. O tt (2001, p 2 8 4 ) recalls: ‘T h e delegation s for the m o st p art b ehaved as if there w ere plenty o f t im e . . . w hen in fact tim e w as already extrem ely sh o rt’. T h e result w as that C O P 6 w as faced with a vast, c o m p lex, interlinked agen da, with little sen se am on g d elegates o f how the variou s key issu es and o p tio n s - w hich them selves h ad not been spelled out - m ight fit together, and indeed how they w ould b e ad d re sse d in organ ization al term s. A cco rd in g to Ja c o b y and Reiner, ‘T h e three years from K y oto to T h e H a g u e w ere frittered away, leaving n e gotiators with m ore issu es o u tstan d in g at the open in g o f C O P 6 than at the end o f C O P 3 ’ (Jaco b y and Reiner, 2 0 0 1 , p301). T h e e x p lo sio n o f issu es, and the p rocrastin atio n and intran sigen ce o f p arties, w as, o f course, largely due to w ider su b stan tive and political facto rs rath er than the way in which the n e gotiation s w ere organ ized . H ow ever, it is argu ab le that tim e m an agem en t strategies by the organ izers o f the n egotiation p ro c e ss did not help to cou n ter these ten den cies as m uch as they cou ld have don e. O n e o f the m ajor facto rs here w as the disag greg atio n o f the n egotiation s into m ultiple n egotiatin g fo ru m s, p resid in g o fficers an d secretariat team s, so

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that there w as no single team o f organ izers w ho could take an overview o f the w hole sp an o f the n egotiation p ro c e ss - from C O P 4 to C O P 6 - and identify steps n eed ed in the negotiation p ro ce ss an d their tim ing. W h ere this w as done on in dividual issu es, for e xam p le in the L U L U C F n egotiation s, w hich follow ed an ag re e d d e c isio n -m a k in g p r o c e ss an d d e fin e d tim e tab le (set out in F C C C /S B S T A /1 9 9 9 /5 ) , the result w as a m ore stru ctu red p ro c e ss with less b ack lo ad in g. A n oth er set o f issu es on w hich a clear w ork pro gram m e w as follow ed , to go o d effect, w ere the n egotiation s on gu id elin es for national system s, rep ortin g and review (A rticles 5, 7 and 8) un d er the K yoto P rotocol. H e re, the S B S T A e n d o rsed a w ork p ro gram m e p re p are d by the secretariat (F C C C /S B /1 9 9 9 /2 ) , in clu din g the sequ en cin g o f issu es, w hereby gu idelines for n ational system s w ere tack led first, b e fo re gu id elin es for rep ortin g and review. A lthough the n egotiation s w ere not ab le to fully ad h ere to the tim etable in the w ork p ro gram m e, the sequ en cin g o f issu es did m ean that gu id elin es for n ation al system s w ere agreed as early as S B S T A 12 in Ju n e 2 000, so that at least one issu e w as o ff the C O P 6 agen da. Ironically, a facto r that m ay have en co u raged foot-d raggin g by parties w as the last m inute su c c e ss o f C O P 3 and the b e lie f that it could be rep eated. P arties seem ed to assu m e that they could con tinue to p rocrastin ate until the last m om en t, and still reach agreem ent. T h is, however, reflected a lack o f u n d erstan d in g o f all the im portan t grou n d w ork that had been don e in the p e rio d b e fo re K y oto , an d that n eed ed to b e don e fo r C O P 6 too. T h e re w as certainly no lack o f rh etoric on the part o f the su b sid iary b ody C h airs in their p u b lic statem en ts to try to push p arties to intensify their n egotiation s. H ow ever, p ro b ab ly b e ca u se they w ere n ot resp o n sib le for the n egotiation s as a w hole, the p resid in g o fficers did not en gage in the forceful bilateral p re ssu re on key p arties that C h air E stra d a h ad p u rsu e d d urin g the K y oto P ro to co l negotiation s. N ego tiatin g aren as an d n egotiatin g texts w ere not system atically and strategically used to en gin eer w atersh eds that w ould sp u r parties on to p ick up the pace o f their n egotiation s. T h e n egotiation s b egan in con tact g ro u p s con ven ed by the su b sid iary b o d ie s in 1999, and those sam e con tact g ro u p s w ere used th rou gh ou t, in clu din g in the first w eek o f C O P 6. N ego tiatin g texts on all issu es did evolve over tim e, albeit to differin g exten ts, b ut they w ere not billed as w atersh eds in the sam e way as they w ere d urin g the K y oto P ro to co l n egotiation s. M oreover, as d isc u sse d in C h ap te r 11, there w as no con sisten cy betw een the textual developm en t p ath s follow ed by the various issu es until C O P 6 itself. T h e p rogression from text to text sim ply did not in duce the sam e sense o f urgency in delegates w hen it w as se p arate d out betw een several issu es. T h e post-K yoto n egotiations did not have any natural b reak akin to the sixm onth rule o f the K yoto P rotocol negotiations. C O P 5, however, did have the potential to act as a sym bolic m arker to intensify the pace o f n egotiations as C O P 2 h ad done. To this end, the organizers convened an ‘inform al exch an ge o f view s’ am ong m inisters and encouraged ad option o f a decision on the intensification o f the p rocess. M any com m en tators did see C O P 5 in this light. E N B stated that C O P 5 had generated “ ‘ an un expected m ood o f o p tim ism ” am ong delegates and o b se rv e rs’ with the inform al exch an ge o f views ‘launch[ing] a year o f intensive

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high-level engagement in the run up to C O P -6’ (E N B , 1999, p l4 ). Parties also commented on the ‘spirit o f understanding’ that prevailed at C O P 5 (E N B , 1999, p 14). This feel-good factor, however, was largely due to the lack o f political content at C O P 5, and the simple deferral of any difficult issues to C O P 6. Ironically, therefore, it was precisely the well-mannered atmosphere of C O P 5 that meant it did not have the galvanizing effect of C O P 2 with its confrontational political drama over the Geneva Ministerial Declaration. Indeed, the possibility of drafting a declaration at C O P 5 was all but excluded, following concern not to repeat the contentious experience of C O P 2. The C O P 5 roundtables were thus open to all heads o f delegation, and resulted in a simple summary of discussions, which had no impact at all on the political negotiations (on roundtables, see Chapter 13). Delegates at C O P 5 thus indulged in cooperative debate and politely agreed to disagree, and were not forced to face up to their differences. The result was that latent controversies were not tackled, and were simply postponed to C O P 6 where they erupted with damaging force. The equivalent of the Geneva Ministerial Declaration that was adopted at C O P 5 was decision 1/CP.5, on the implementation of the Buenos Aires Plan of Action. This decision was intended to mark a turning point in the negotiation process, speaking o f the need ‘to intensify’ the negotiation process, and including invitations to the President and C O P Bureau to make recomm endations on the organization of work at C O P 6. The implementation of this decision, however, was weak. Although it did lead to the convening of several friends meetings before C O P 6 (see Table 9.3), no agreement on the organization o f C O P 6 - or indeed any other appreciable formal or informal advance - resulted from them, and there was no discernible intensification o f the negotiation process after C O P 5. Again, this failure to follow up on decision 1/CP.5 in any meaningful way can be attributed largely to the disaggregation of the negotiations. Another element was the rule whereby the C O P President is only elected on the opening day o f the session. The President during the preceding year - in this case, the C O P 5 President - thus has much less of an incentive to exert every effort to bring the forthcoming C O P to agreement.4 This lack of motivation, along with the rather weak (albeit genial) leadership of the C O P 5 President, also contributed to the fact that C O P 5 proved less of an effective symbolic marker than C O P 2. Indeed, rather than facilitating the process, it was at C O P 5 that the agenda for C O P 6 became seriously overloaded, as additional issues, such as the impact o f single projects (the Iceland q u e stio n -se e Chapter 3), technology transfer and capacitybuilding were all backloaded to a deadline of C O P 6. A strong presiding officer in charge o f the whole negotiation process might at least have tried to sequence negotiations, deferring technology transfer and capacity-building until the session after C O P 6, or even perhaps agreeing on them at C O P 5, but in the absence of such a leadership figure, the option of deferring difficult topics to a common deadline o f C O P 6 was too tempting for naturally procrastinating delegates. With hindsight, the burden became unmanageable in the time available. The C O P 6 deadline was undoubtedly talked up by all those involved in the process. The Buenos Aires Plan of Action, however, did not even mention a specific deadline, while the wording of its individual component decisions and

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subsequent C O P 5 decisions varied. Some imagination was therefore needed to interpret C O P 6 as a clear-cut and firm deadline. The reinforcement of the deadline by the presiding officers and secretariat, however, meant it did indeed becom e seen as final, although with perhaps a degree less finality than the C O P 3 deadline. This may have been partly because delegates were subconsciously aware of the great difficulty in meeting it, and partly because the forum in which negotiations had been conducted - the subsidiary bodies - would continue to meet beyond C O P 6 (unlike the A G B M , for example, which was disbanded before C O P 3). The timing of the US election was also thought to hamper the ability of the U S to take decisions at C O P 6, as the government would be in between (possibly different) administrations (although the chief US negotiator in The H ague denied this).

The finale Instead of countering tendencies to brinkmanship, it is arguable that time management at the C O P 6 finale actually exacerbated these, leading to perhaps the most overburdened last night of negotiations in the climate change regime to date. This reflects the fact that the Presidency, which took an active lead in the organization o f the negotiation process, appeared to share the implicit assumptions of the parties that a deal would only, and could only, be struck through negotiation by exhaustion at the last minute. While probably true, this neglected the fact that prior groundwork to enable a last minute deal to be struck is absolutely essential. A second issue that set the scene for problem atic time managem ent at C O P 6 was the assum ption on the part o f the Presidency, and also the higher echelons o f the secretariat, that political agreement on the key points o f the post-Kyoto deal w ould need to precede technical drafting of its details. This w ould require strict sequencing and time keeping. As the Executive Secretary made clear in his opening statement: substantive results must be achieved in the first week, and the main political agreements in the m iddle o f the second week, leaving enough time for the consequential technical drafting to be com pleted before closure (see C O P 6 report, part I, paragraph 24). Unlike the Executive Secretary, however, the ambitions of the C O P 6 President seemed to extend only to reaching political agreement on the key issues - and, as noted above, he appeared to share the view that this could only be done at the last minute - with the technical drafting either squeezed in at the end, or deferred to a future session. Problematically, the assumption of sequencing o f the political and the technical was not generally shared or understood by most delegations. This meant that, from the outset, the Presidency, most delegates and different individuals within the secretariat were operating according to different assumptions as to the timing, the sequencing and even the final output of the session.

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The C O P 6 P resident, and Chairs o f the subsidiary bodies and inform al groups were not shy in using verbal exhortation to try to push parties to intensify bargaining and start to strike deals early on in C O P 6. How ever, this rhetoric was not b acked up by other actions on the part o f the organizers. The organizers did convene new negotiating arenas and issue new negotiating texts to try to accelerate the pace o f the process, but, with the benefit o f hindsight, each o f these m oves was carried out roughly a week too late. The traditional m arker at the start o f the finale to signify the launch of intensive bargaining - namely, the convening o f new, or intensified, negotiating arenas - w as absent at C O P 6. Instead, the sam e negotiating arenas as before - the subsidiary b od ies and their inform al grou p s - continued w ork in the first week, under much the sam e C hairs. It w as not even a separate session o f the subsidiary b odies that launched C O P 6, but the resum ed 13th session. It is unsurprising, therefore, that the rather slow -m oving dynam ics o f the previous negotiating sessions resum ed too, and lim ited progress w as m ade. D elegates were sim ply not used to intensive bargaining and deal-m aking on such im portant decisions in the subsidiary bodies. Furtherm ore, the know ledge that a new set o f negotiating arenas w ould be launched in the secon d week led delegates to a psychology o f believing that intensive bargaining and dealm aking could safely be postpon ed until that secon d week. The organizers certainly introduced a very clear break at the start o f the second week, with the convening o f entirely new - indeed unprecedented negotiating arenas, including the inform al high-level plenary (IH L P ) and four ministerial ‘cluster’ grou ps (see C h apter 9). By then, however, a w eek o f negotiations had already passed , and with little to show for it. Even the new negotiating arenas did not launch into the final bargaining process with the necessary urgency; by Tuesday evening o f the second w eek, only two o f the four m inisterial grou p s had met at all. The next m ajor break in term s o f negotiating arenas, the convening o f a friends group, again cam e very late. Convening a friends grou p can indeed be an effective m eans o f launching deal-m aking, and w as used successfully in this way at C O P 6 (part II) and C O P 7 (see C h apter 9). H ow ever, at C O P 6, the friends grou p w as not launched until the Friday m orning, with the scheduled end o f negotiations just seven hours away. The very late convening o f the friends group w as linked to the very late release o f the C h air’s text, the N ote by the President. President Pronk had planned to announce, on W ednesday evening o f the second week, his intention to produce a text the follow ing m orning (although rum ours that he w ould do so had been circulating for several days). T h is w ould have allow ed for 48 hours o f negotiations b efore the scheduled deadline. H ow ever, he was m isled by positive reports o f developm ents in the n egotiations from the m inisterial group C o-C h airs and delayed his announcem ent until T h ursday m orning. With hindsight, this w as a m istake - the grou ps that met on W ednesday night seem ed to backtrack on any progress they had m ade, or perhaps the m inisterial C o-C hairs, when they next reported to President Pronk on Th ursd ay m orning, sim ply ab an d on ed d iplom atic pretence. W hatever the explan ation , the prognosis on T h ursday m orning w as much dim m er than it had been on W ednesday evening. By then, 12 m ore hours had been lost.

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On Thursday morning, President Pronk then announced that he would prepare a President’s text and circulate it at around 4pm . This had the unfortunate effect o f stifling an entire day of work, as delegates simply waited for the text. Unsurprisingly, the paper came out late, not until 19:45. A whole day o f negotiation, the second to last day before the deadline, was therefore lost. The novel approach o f the text, as discussed in Chapter 11, meant that even more time was needed for parties to make sense of, and consider, its substantive contents and their implications. Its lateness was therefore all the more serious. As in C O P 3, the arrival o f ministers was used as an important symbolic marker to intensify negotiations, with President Pronk repeatedly appealing to parties to ready themselves for the ministerial segment. President P ronk’s strong reliance on ministerial input made this marker all the more important. However, in addition to difficulties surrounding the whole issue o f ministerial input (see Chapter 13), timing factors also intervened. One important factor was that ministers arrived earlier than usual, that is, a whole working week before the scheduled end of negotiations, rather than just for the last two or three days. This period may have been simply too long (Yamin and D epledge, 2004). Parties did not feel ready to engage in final deal-making early in the second week when the ministers arrived, so that the first two days of ministerial presence were spent in essentially bureaucratic negotiations, where ‘not much was achieved to justify the expenditure of two days o f precious negotiating tim e’ (Ott, 2001, p281). By the time they should have started such political deal-making towards the end o f the week, ministers were already tired, the natural burst of political energy generated by their arrival had faded, and some ministers even had to leave, as a week is a long time for them to devote to one issue away from home. Another timing issue is that there was no opportunity for rest for either the President, the secretariat or many delegations on the middle Sunday (or indeed at any other time) due to the scheduling o f a ministerial meeting on that day. This meant that the organizers in particular, including the President and his team, were going into a full second week already feeling weary, which most certainly would have impaired judgement. An im portant contribution to the slow pace o f negotiations and procrastination that characterized C O P 6 was the failure to unswervingly uphold deadlines. This applied both to the overall deadline of C O P 6, and to several issue- or process-specific deadlines that were im posed on various groups during C O P 6 itself. The division of the negotiations into two segments - the first and second weeks - itself created an artificial deadline halfway through the C O P 6 process. President Pronk then decided to extend the final deadline he had given to the subsidiary bodies from Friday evening to Saturday lunchtime, allowing the various informal contact groups to meet again on Saturday morning. Inevitably, the contact groups sought even more time to meet on Saturday afternoon, as a lunchtime deadline is never considered final. The timing o f the closure of the subsidiary body sessions thus slipped further and further back, and eventually into late Saturday evening. The failure to meet this process-specific deadline early on during C O P 6 conveyed the message that working deadlines were not necessarily final, and the organizers could be persuaded to extend them. This was

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not helpful to countering procrastinating tendencies. Even more seriously, the organizers failed to uphold the unassailability of the C O P 6 deadline. Even in the first week, President Pronk suggested that work might not be com pleted in The H ague. Although he did not repeat this m essage publicly, it was enough that the suggestion o f a resum ed C O P 6 had been aired at all. If the presiding officer of the negotiations does not wholly believe in the deadline, then the deadline is no longer. Moreover, on Thursday o f the second week, President Pronk announced in the IH L P that the deadline was really Saturday, and not Friday evening, the scheduled end o f C O P 6. Although parties were perfectly aware that facilities w ould be available to continue negotiating for some hours beyond the scheduled end o f C O P 6, for the President to admit so was tantamount to implying that the negotiations could logistically go on a day later than that, which was not the case. The assum ption that the final deal could only be struck under extreme time pressure and conditions o f negotiation by exhaustion (see below) is almost certainly what prom pted President Pronk to keep pushing the real negotiations further and further back during the final day o f C O P 6. H e convened his friends group only at 11am, where he heard general (mostly critical) comments on his President’s text. In a clear exam ple o f a high level presence at the C O P proving counterproductive, as the valuable time of President Pronk was then taken up in a formal plenary meeting attended by the President o f Costa Rica. President Pronk reconvened his friends group again at 5pm , at which point he invited delegates to subm it comments on his paper by 9pm , which would be discussed at a further meeting o f the friends starting at 10pm. The assum ption that the process would go to the wall thus becam e a self-fulfilling prophecy, and intensive bargaining did not start until the final marathon session o f the friends group convened (late) at 11pm on Friday evening. The final negotiations in Kyoto started even later on the last night, but at C O P 6, negotiators were trying to conclude work on a greater num ber of far more com plex questions, without the benefit of a clean, accepted text. It was simply im possible to do this at the last minute. Parties were excessively com placent in believing that the final deal w ould be struck at the last minute, without carrying out the prior work needed for that to be possible. Importantly, they were not pushed into doing so by the organizers o f the negotiation process. When the crunch came, there was simply too much to do and too little time in which to do it. A deal - or rather, almost a deal - was forged on the Saturday morning between certain EU countries and the US meeting unofficially behind the scenes (see Chapter 9). However, timing factors again intervened. Even if sufficient time had been available to consult with countries and coalitions not part o f the unofficial negotiations, and to transcribe the deal into legal text, there was simply not enough hours left to produce the text as a document, translate it into six languages, and make it available to all delegations for formal adoption before the conference centre had to be dismantled and developing country delegations on U N -funded tickets had to leave for the airport. N egotiations at C O P 6 simply ran out of time, but due to poor time management where the tendencies o f parties to procrastinate were indulged and exacerbated, rather than to any inevitability.

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Ne go ti a ti o n by exhaust ion ‘Negotiation by exhaustion’ is often used to refer specifically to the final 24 to 48 hours o f negotiations, where delegates and the organizers work round the clock, often without rest or sustenance, to secure a final deal (or indeed admit failure), almost invariably after the scheduled end of negotiations. This final marathon session typically comes at the end of an increasingly intense week or more of negotiations, where formal, informal and unofficial meetings have also gone on late into the night (Yamin and D epledge, 2004). The finales o f both the Kyoto and post-Kyoto negotiations took place through a process of ‘negotiation by exhaustion’, escalating into a final overnight marathon session that eventually concluded nearly a day late. In Kyoto, the final ‘marathon session’ in the Com m ittee of the Whole lasted from lam to 10:17 on 11 December. The form al adoption of the Kyoto Protocol in the C O P plenary did not take place until around 3pm later that day, nearly 24 hours after the scheduled end o f the conference. The sequence o f events at C O P 6 was similar. The friends o f the President met for what was intended to be a final round o f deal-making at 11pm on 24 November, until around 9am next morning. Unofficial negotiations between the EU and U S continued in the morning, but in vain. The final C O P plenary ended at around 6pm. Negotiation by exhaustion, including overnight negotiations and late running, also characterized the finales o f the political segment of C O P 6 (part II), and C O P 7. There is a w idespread belief am ong negotiators, not only in the climate change regime but also in m ost negotiation processes, that the final deal can only be struck under such conditions of exhaustion.’ D elegates are inevitably less resistant to pressure, their resolve w eakens, and they are more likely to back down from their positions as physical tiredness take its toll. One interviewee commented: if we h adn ’t been under that kind of pressure, under those kind of circum stances, we probably w ouldn’t have come out with an agreem en t. . . You basically have to lift yourself up . . . work to that kind of pace, to that kind o f level, to basically weaken people down so they will consent to com prom ise. At a more personal level, the exhaustion of late night negotiations can provide a sense of dram a and occasion that some delegates relish. As one interviewee put it: at the end o f the d a y ... I d on ’t think you can avoid the fact that the show has to happen on the final n igh t. .. we w ould like to believe that we are all much more rational, but in f a c t . .. i t ’s a psychological th in g. . . We thrive on it. D elegates must be able to dem onstrate that they made every effort to maintain their position before being forced to give in, while late night negotiations can generate a sense of common and shared hardship (Yamin and D epledge, 2004).

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According to one interviewee, ‘it’s the way that diplom ats function . . . D elegates need to feel they have su ffe red . . . to be able to say we tried really hard, we sweated, we did our b est.’ Another interviewee agreed: ‘I think that it’s a pathology of the individuals involved, in som e sense they w ouldn’t feel that they had done their job properly if they didn’t push themselves to late at night’. While perceived as inevitable, negotiation by exhaustion has very high costs attached to it. Firstly, it does not always succeed. Although exhaustion and the imminent threat o f failure can lower the resistance of parties and induce them to com prom ise to som e extent, these factors will not usually cause parties to go beyond their bottom lines. Therefore, if insufficient creative work has been done beforehand to explore possible areas o f com prom ise, then tiredness and time pressure alone will not forge agreement. In addition, tiredness will affect the ability of individual delegates to think through possible com prom ises and their im plications. N othing new should therefore be introduced on the last night, and parties should simply have to choose between a limited num ber o f options and com binations o f options. Again, for this reason, the docum ent before parties must be straightforward and easy to read, so as not to waste scarce mental energy. The difference between C O P 3 and C O P 6 in this regard is clear. The final meeting of the Com m ittee of the Whole at C O P 3 had a new document before it, but almost all the text was well-known, and m ost of it wras agreed in principle. The choices facing delegates were relatively straightforward and dem anded little analysis, except for the implications o f the combination of choices. The final friends meeting at C O P 6, however, had before it the President’s N ote which, while released 24 hours earlier, was still extremely innovative in style, content and structure. Moreover, participants in the friends group also had before them a mass o f written comments on the text (see Chapter 11), which they were being asked to sift through and somehow reconcile into am ended text. The intellectual capacity needed to do this meant that it was simply not appropriate for a process of negotiation by exhaustion. Negotiation by exhaustion can therefore backfire. An excellent illustration of this point concerns the former French Environment Minister, D om inique Voynet, who presided over the EU at C O P 6. Following the conclusion o f the apparent last minute deal between the U S and certain EU countries, Minister Voynet declared herself too tired to fully understand the deal (especially as it was written only in English) and therefore unable to explain and sell it to the w ider E U . Although it is unlikely that the deal would have stuck anyway, this is a clear case o f where last minute negotiation by exhaustion placed obstacles to advancing the process. N ot all interviewees agreed that negotiation by exhaustion was a significant factor on the last nights o f negotiations. O ne, for exam ple, from a wellresourced O E C D country, said ‘tiredness was pretty marginal. We were on top, in com m and, the adrenaline was flowing.’ Interestingly, a non-Annex I party delegate took a similar viewpoint, stating ‘I don ’t think it affects peop le’s ability, because they still have the three key things that they are looking f o r ... despite their w eariness’. Nevertheless, negotiation by exhaustion at the finales of both the Kyoto

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and post-Kyoto negotiations, including C O P 6 (part II) and C O P 7, meant that the commitments of states under international law were being negotiated late at night by individuals who were often suffering from extrem e tiredness. These were not propitious conditions for taking such important decisions. As one interviewee noted, ‘the late night m eetings are a terrible way to make public policy, at three in the morning by people who have not slept for three days’. The tiredness o f negotiators can certainly affect the quality o f the agreement, as parties are less willing to devote attention to language and style, focusing simply on closing the substantive deal (Yamin and D epledge, 2004). According to W erksman, ‘marathon sessions can underm ine the quality of decisions, as n egotiators. . . fail to choose their w ords carefully or to ensure the consistency o f the text’ (Werksman, 1999, p l2 ). One interviewee recalled: we nearly adopted a sentence without a verb in it! These things should not happen. It was time pressure. Working 30 hours, and then another 30 hours .. .with hardly any sleep in between, is not a good way to keep your thinking powers intact. The various discrepancies that appeared in the Bonn Agreem ents adopted at C O P 6 (part II), for exam ple (see Chapter 9), can largely be attributed to the tiredness o f delegations and the organizers. In the fog o f fuzzy thinking that characterizes late night negotiations, differing interpretations can even arise as to the text adopted. The decision on adoption of the Kyoto Protocol, for exam ple, led to an inexplicable incident in which, during the technical review of the Kyoto Protocol a month after the close of C O P 3, a senior delegate from an Annex I party claimed he was under the im pression a different version had been adopted, including text on com pliance and more detailed work on em issions trading. Although the large delegation of this party was able to cope better than most with negotiation by exhaustion, it had not been immune from the general ‘blur’ of late night, intense talks. A major failing of negotiation by exhaustion is that it hits the smallest and least-resourced delegations hardest (Yamin and D epledge, 2004). Larger delegations are able to establish a rota system, so that the negotiations are constantly covered by a relatively well-rested individual. Such rotation is not possible, however, in small delegations, with serious implications for practical procedural equity. An A frican interview ee recalled the final night of negotiations at C O P 3 thus: at a certain point, I fell asleep. And what is said while you’re asleep, it’s not guaranteed that you’ll be happy with i t . .. once again, it’s the small delegations that suffer. If there are ten of you in a delegation, five can sleep, and five can take over. The others can go and have a re st... But it’s a real problem for us. Another African interviewee echoed this sentiment:

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C om in g from the South, I definitely and vehem ently o p p o se late night m eetings since w e do not have the num bers to sustain it and therefore they do not w ork in our fa v o u r ... those late night m eetings ap p ear su spiciou s in intentions and lack good faith. In the case o f C O P 3, the overrunning o f the negotiations also m eant that interpretation facilities were lost b efore work had con cluded, placing nonA n gloph ones, especially less w ell-resourced developing countries and E ITs, once again at a disadvantage. In addition, many negotiators, especially developing country delegates, were forced to leave the conference centre b efore the close o f the negotiations to catch their flights hom e. In the case of the three finales o f the post-K yoto negotiations - C O P 6, C O P 6 (part II) and C O P 7 - the final m arathon round o f deal-m aking in any case took place in inform al, English-only arenas, effectively excludin g non-A nglophones. The problem o f prem ature departures from the conference centre w as, however, m inim ized to a large extent by the secretariat having anticipated the problem and book ed later flights for fun ded delegates.

S u m m a r y a nd c o nc l u d i n g r emarks Th e m essages o f this chapter are straightforw ard. Ju d icio u s time m anagem ent over the w hole course o f a negotiation is very im portant to establishing the conditions that can enable agreem ent to be reached within the deadline. W hile there is a natural tendency am ong n egotiators to back lo ad negotiations, it is the task o f the organizers to counter this tendency. T h is is easier when there is a single team in charge o f the w hole p rocess from start to finish and across different issues, enabling forw ard planning and strategic time m anagem ent. Convening m ore intensive negotiating arenas and m ore advanced negotiating texts, as well as talking up natural break points (e.g. m id-point C O P s) and unswervingly uph oldin g the deadline, are all im portant ways o f pushing parties to m ove forw ards and not get stuck at a particular stage o f the negotiations. M anaging the final negotiating session and constantly challenging the tendency to brinkm anship is particularly im portant. It is alm ost inevitable that the final deal will be struck at a late night, last m inute m arathon session, which will alm ost undoubtedly overrun past the scheduled closure o f the Conference. F o r such negotiation by exhaustion to be successful, however, sufficient ground m ust already have been covered. Even if su c c e ssfu l, n egotiation by exh au stio n h as d am ag in g re p ercu ssio n s, on procedural equity, for exam ple, on transparency, and on the quality o f the agreem ent. T h e inevitability with which many n egotiators view this factor can b e largely attrib u te d to the prevailin g p ercep tio n o f n e go tiatio n s as confrontational bargaining, rather than exercises in joint problem -solving.

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The Political and the Technical: Ministerial Input

T h e start o f the m inisterial se g m e n t. . . the m om ent at which the G reat and the Jet-lagged join the W ise and the Weary (G L O B E , 1998).

I nt roduct ion This chaptcr explores arrangem ents for the participation o f m inisters in the climate change negotiations. A distinction is typically m ade in both the literature (e.g. see W ettestad, 1999) and policy arena betw een adm inistrativelevel civil servants - term ed officials - and higher-level political participants representing the governm ent in office, known as m inisters' in m ost countries. Th ese different actors are viewed as having contrasting strengths. W hile ‘bureaucrats [officials] often m aster the com plex technological and political d e ta ils. . . m inisters are. ..fr e e r to cut bargain s, and they usually draw much m ore m edia and public attention to the issu es’ (W ettestad, 1999, p23). A particularly im portant contribution that m inisters can m ake to the negotiations is one o f providing political leadersh ip, or skill and energy; that is, being able to articulate and im plem ent a b ro ad er vision than officials who have no authority to stray from the governm ent line, and thus help to forge an agreem ent b ased on the w ork o f those officials. An effectively organized negotiation p rocess should thus seek to draw out a synergistic, productive interplay betw een m inisters and officials and their differing strengths. In this chapter, we explore the four main avenues in which m inisters have been involved in the clim ate change negotiations: the traditional ‘general d e b ate’ ; roundtable forum s; direct involvem ent in the negotiations; and unofficial dealings behind the scenes.

The h ig h- level s e g m e n t E ach C O P session to date has featured a so-called ‘high-level segm ent’ or ‘m inisterial segm en t’ intended for participation by m inisters. The high-level segm ent has alm ost always been held on the last three days o f the C O P session,2 with the intent that m inisters w ould provide im portant political input

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into the m ost difficult decisions needed in the final deal-m aking stage o f the negotiations, building on the w ork o f the m ore technical officials. M inisterial presence at C O P sessions has always been high, especially am ong A nnex I parties, who are alm ost all regularly represented by m inisters. The proportion o f non-A nnex I parties represented by m inisters is typically lower, although it has been rising. T h is im m ediately points to an im portant underlying issue, that is, differences in the extent and m ode o f participation by m inisters from Annex I and non-Annex I parties. In deed, concerns on the part o f many non-Annex I delegations that they should not face exclusion from any part o f the negotiations on account o f their not being represented by a m inister led to the renam ing o f the ‘ministerial segm ent’ (at C O P s I and 2) to the ‘high level segm ent’ (from C O P 3 onw ards), therefore also encom passin g senior officials (Yamin and D ep ledge, 2004).

The g e ne r al d e b a te T h e traditional form al general debate is part o f establish ed practice for m inisterial participation in U N forum s. A s part o f this debate, m inisters and other h eads o f delegation deliver speeches outlining their national positions from the podium in the m ain plenary room . This debate is chaired by the President, a task that s/h e alm ost always refers to the V ice-Presidents, to enable h im /h er to get on with w ork in the real negotiations. Occasionally, heads o f state choose to speak at high-level segm ents, m ost com m only the head o f state o f the hosting country, but also som etim es others with a particular interest in the negotiations. T h e President o f C osta Rica, for exam ple, attended C O P 3 and C O P 7, while the President o f France attended C O P 6. High-level segm ent speeches are alm ost all pre-prepared statem ents o f a ‘highly predictable and rhetorical nature’ (W erksm an, 1999, p 13), with the ord er and tim ing o f delivery tightly ch o reograp h ed by the secretariat. P articipan ts thus very rarely respond to one another and the debate in fact typically consists o f m onologues. D esp ite the potential for m inisters to use the form al debate as a platform for exerting inspirational leadersh ip, in practice this rarely takes place in any m eaningful way. E x c ep t for m inisterial statem ents from the m ost influential countries, which are listened to avidly for signs o f any change in position, there is no expectation that the form al debate will feed into the negotiations. T h e speeches are generally not sum m arized in the report or recorded in any way,’ except for a listing o f speakers in the C O P report. The exception w as at C O P 5, w here statem ents were placed on the U N F C C C w ebsite, and the E N B was com m issioned to prepare an index o f key topics covered by the statem ents. T h is w as an explicit attem pt by senior staff within the secretariat to increase the im pact o f the general debate. A hard copy o f the text o f m ost speeches can be obtained from the secretariat. A general debate has taken place at each C O P session up to and including C O P 7.4The num ber o f speeches delivered has varied between 75 (at C O P 7) and 125 (at C O P 3). The high-level segm ent is one of the very few cases where the C O P acts to limit the speaking time o f delegates. From C O P 1 to C O P 4, speakers were

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granted five minutes, but since then the time limit has been set at 3 -4 minutes. The order o f speeches - the list o f speakers - is maintained by the secretariat, with slots given on a first-come-first-served basis, but with priority to ministers. Prim e slots are highly prized. V arious m ethods have been tried to increase the efficiency o f the general debate and m inimize the instances where m eetings have gone on into the night and speak ers have ad dressed an alm ost em pty hall. Stop clocks and even bells have been introduced to encourage speakers to stick to their allotted times, although the determ ination o f the chairing P resid en t/V ice-P residen t to enforce time slots has varied, as m inisters rarely take kindly to having their w ords curtailed. P arties have also been strongly en couraged to deliver statem ents as a group (e.g. A O S IS ) rather than individually, with the incentive o f a better and longer speaking slot. A nother tactic has been to suggest that countries refrain from speaking, and instead circulate pap er copies o f their statem ents. The general debate does fulfil som e valued functions. O ne such function is inclusivity, ensuring that all heads o f delegation from all countries have the opportunity to participate and be seen to participate, albeit passively, in the negotiation process. In doing so, the form al debate can help raise the political, public and m edia profile o f the negotiations, while conferring greater status on the climate change issue on the international agenda. The high ministerial presence at C O P 3 for exam ple, and, in particular, the presence of the U S Vice-President and the heads o f state o f C osta Rica, Jap an and N auru directed the spotlight o f the w orld’s m edia firmly onto Kyoto. Raising the profile o f climate change can be similarly im portant at the national level, especially for developing countries, where the issue tends not to be so high on the political agenda (Yamin and D epledge, 2004). The attendance o f a minister or head o f state at a CO P, and the delivery of a speech to the plenary, can becom e a news item in that country and thereby increase public awareness o f climate change. M ore substantively, the form al debate can becom e an im portant vehicle for key players to announce m ajor new positions or pledges, which can then im pact profoun dly on the negotiations. At C O P 2 in 1996, for exam ple, the U S U n der Secretary o f State for G lo b al A ffairs m ade a dram atic statem ent to the effect that the U S w ould su pp ort legally-binding targets, within the context of an em issions trading system, while attacking climate sceptics. T h is m arked an im portant turning point in the K yoto Protocol negotiations. Even m ore dramatically, at C O P 3, the U S V ice-President, Al G o re , departin g from the printed text o f his speech, announced that he was instructing his negotiators to ‘show increased negotiating flexibility’ (cited in O berth iir and O tt, 1999, p86). Similarly, announcem ents by countries - notably again the U S - during the high-level segm ent at C O P 4 that they intended to sign the K yoto Protocol w ere very im portant to shaping the m ood and outcom e o f that session. Argentina and K azak h stan ’s announcem ents, at the sam e high-level segm ent, regarding their intentions to take on voluntary targets also had im portant repercussion s on subsequen t negotiations. A lthough the substan ce o f these statem ents cannot be attributed to the form al debate as such, the convening of a suitable forum attracted high-level participation and provided a high profile

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b ack drop that ad ded dram atic effect to the statem ents m ade, ensuring that they were w ell-publicized and m ade in the m ost form al way possible. In m ost cases, however, the traditional general debate, despite the high political profile o f its participants, has taken place on the m argins, rather than at the centre, o f the negotiation process, with a real disconnect betw een the two. Many interviewees, while recognizing the contributions m ade by the gen eral d e b ate , d o u b te d w hether the co sts in term s o f n egotiation , interpretation and secretariat time were worth it. A ccordin g to the senior secretariat official speaking in his interview, ‘it is a heavy price to pay’ . The secretariat did put forw ard proposals to the SB I for alternative m eans of involving m inisters as early as 1997 (see F C C C /S B I/1 9 9 7 /1 1 ). However, the secretariat’s suggestion to do away with the form al debate w as resisted by many parties, especially developing countries, but also the U S, which w as likely anticipating a visit to C O P 3 by its Vice-President. A go od illustration o f the rather am bivalent attitude o f participants in the climate change regim e to the general debate can be found at C O P 6. H ere, facing strong time pressure, President Pronk appealed to m inisters to forego som e o f the interpretation time allocated to their general debate, to instead allow the IH L P - the main w orking body o f the negotiations - to meet. A lthough many parties and their m inisters concurred, others were very unhappy at what they saw as a political sn ub, with the objections o f the Russian F ederation turning into a m inor diplom atic incident. It w as not until preparation s for C O P 8 that parties agreed not to hold a general debate for that session, and instead to channel input by m inisters through m ore interactive ‘ro u n d tables’. We now turn to exam ine these forum s.

Roundtable forums T h e first ministerial roundtable in the climate change regim e w as held for half a day at C O P 2. It enjoyed only m ixed success, partly due to attendance being lim ited to head s of delegation of m inisterial rank (see F C C C / C P /1 9 9 6 / l/ A d d .l, em ph asis in original). The rationale was that m inisters w ould be m ore likely to engage in substantive discussion with their peers than if officials were also present. This ap proach , however, while justified in term s o f efficiency, caused w idespread discontent on the groun ds o f procedural equity and transparency am ong delegations not represented at ministerial level. O ne A O SIS interviewee recalled: A O S IS w as only given lim ited a c c e s s . . . becau se we h ad n ’t brough t any m inisters, we had considered it to be a nonm inisterial m eeting, [my country] w as only represented by m yself and the A ssistant Attorney G en eral, so we w eren’t even allow ed in. The ministerial declaration that em erged from the roundtable (and associated behind the scenes negotiations) w as rejected by several parties and could not

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be adopted, partly due to objections over lack o f transparency in its developm ent.’ A second experim ent at C O P 5 - dubbed an ‘informal exchange of views’ open to all ministers and heads of delegation proved much more acceptable, and paved the way for acceptance by parties that a roundtable forum would be the main means of eliciting ministerial input at C O P 8. A similar roundtable was held at C O P 9 and is planned for C O P 10. The roundtables held to date in the climate change regime, and their main features, are sum m arized in Table 13.1. It is worth highlighting from the outset that roundtables have been held at quieter C O P sessions, that is, not those serving as finales of negotiating rounds where a set o f im portant decisions must be taken. It was expected at C O P 3, C O P 6, C O P 6 (part II) and C O P 7 that m inisters’ time u'ould be entirely occupied with the negotiations themselves. This immediately points to the role o f roundtables as time fillers, an issue we will return to later in this chapter. The main aim of the roundtables is to prom ote debate am ong ministers that is more interactive and frank than the m onologues of the general debate, in the h ope that m inisters will exch an ge views, develop their own understanding, and learn from each other in ways that will eventually feed into a more constructive negotiation process (Yamin and D epledge, 2004). To this end, the roundtables are designated as informal forum s, underlining that w ords spoken do not imply any commitment, and can therefore be shared more openly. Since the am biguous experience o f the C O P 2 roundtable and its ministerial declaration, no attem pt has been m ade to actually negotiate anything in, or on the margins of, these roundtables. Instead, sum m aries of discussions and key points raised have been published in the relevant C O P report, with each session showing greater boldness in the extent o f detail included. The C O P 9 report, for exam ple, included a full page or more on each of the three roundtables held. The conduct o f proceedings in the roundtables does, in fact, have much in common with the traditional general debate. All ministers and heads of delegation have the opportunity to participate and make a statement, and the events are held not around a round table, but in a plenary room. Considerable efforts, however, have been m ade to try to distinguish the roundtables from the general debate, and prom ote lively and focused debate. For exam ple, each roundtable has been based on a defined theme. These themes have inevitably been quite broad, given that they have been negotiated and agreed am ong parties in the SBI. However, they do represent a step forw ards from the random, unrelated statements that make up the general debate. Another strategy has been to invite a small num ber of parties to serve as ‘lead off’ speakers to put forward ideas and get the discussion rolling. Appointing ministerial Co-Chairs for each roundtable has also been im portant in bringing buy-in from other ministers, not just the C O P President, encouraging them to give the roundtable their own personal touch. The absence of a list of speakers means discussions are less closely staged, and seating has been arranged in different form ations to convey a more relaxed and intimate atm osphere. The main N G O constituencies have been represented and allowed to observe proceedings, and in some cases also to make statements.

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The extent to which the roundtables have succeeded in provoking open, substantive debate am ong participants is limited (Yamin and D epledge, 2004). Although som e ministers have m ade spontaneous interventions and reacted to other speakers, the majority has still delivered prepared statements and actual discussion with off-the-cuff remarks has been rare. As a secretariat official explained, ‘everyone is pro “ free flowing discussions” etcetera, but still there are prepared speeches, officials still want to know exactly when their minister will be speaking, on what, for how long’. O ne means of seeking a m iddle way between the stiltedness o f scripted statements on the one hand, and the wariness o f ministers (and their staff) o f entirely spontaneous debate they might be unprepared for on the other, has been for the President to circulate an advance ‘survey’ to delegations. This survey, circulated at C O P 8 and C O P 9, invited delegations to indicate their advance preference o f which roundtable they preferred to contribute to, along with ‘key w ords’ of their planned contribution. The debate at the roundtables was then organized in advance by the presidency and secretariat based on responses received, so that proceedings were loosely structured, but not as tightly choreographed as the general debate. Several interviewees also pointed to the skilful chairing by many o f the ministerial roundtable Co-Chairs at C O P 9 who actively sought to prom ote real discussion, albeit with limited success. One interviewee calculated there had been 17 offthe-cuff statements in the technology roundtable at C O P 9; the fact that he was able to actually identify the num ber of such statements suggests they were not as off-the-cuff as all that. A ccording to the interviewee, m ost o f these were made by O P E C parties, who do not need encouragem ent to make uninhibited interventions. Another interviewee commented: ‘In the end it h asn’t changed a lot, they [the ministers] still make a speech for their dom estic audience. Trying to focus them on topics has not been successful.’ Although most statements remain scripted, the roundtable forum s have nonetheless provided a helpful environment for ministers to speak ‘outside the b o x ’, that is, to air views on wider subjects than the strict negotiating agenda, while also making linkages between issues. This indeed reflects one of the strengths that are expected of ministers - to go beyond detail into the broader issues. In a similar way to the special events convened mostly by N G O s (see Chapters 10 and 14), the ministerial roundtables provide an opportunity for ministers to raise topics that are not being discussed in the negotiations themselves, to showcase national initiatives relating to climate change implementation, or to make national pledges. In its analysis of C O P 9, the E N B reported: outside the b ox o f defensive party p o sitio n s. .. the high-level round-table discussions am ong ministers provided a refreshing change o f pace, allowing an opportunity to step back and take a w ider perspective on the U N F C C C p ro c e ss. . . unleashed from common denom inator group positions and the confines of negotiations. Although an im provem ent on the general debate, the merely m odest achievements of the roundtables in actually delivering meaningful interaction

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can be attributed to a n um b er o f factors. At a basic level, the size and openended nature o f the forum is problem atic. A s noted in C h apter 9, in-depth debate in a large plenary form at is rarely possible. O n e interview ee put it thus: ‘It’s got to b e done in a closed room , over dinner. It can ’t b e don e in plenary.’ M o re fundam entally, the actual aim s o f roun dtable forum s are problem atic, and to som e extent contradictory. M inisters are asked to engage in free-flow ing discussion s and to feel they can speak openly b ecau se the forum is inform al and no bargainin g will take place, yet if no bargain in g takes place - not even on a joint declaration, statem ent or report - then there ap p ears to b e little point or clear d irectio n to the d isc u ssio n /’ M u tu al learn in g an d the sh arin g o f e x p e rie n c e s are im p o rta n t, esp ecially a c ro ss d e v e lo p e d and d e v e lo p in g countries, b u t as one interview ee pu t it, ‘m inisters com e [to the clim ate change n egotiations] to m ake decisions, not to share inform ation’. A fundam ental problem is that, as with the general debate, there is little connection - aside from within national delegations - betw een the m inisterial roundtables an d the negotiation s proper. In m any ways, therefore, the m inisterial roundtables are as m uch o f a side show as the N G O side events. In this sense, ro u n d tab les have not su c c e ed ed in h arn essin g the political energy o f m in isters to actually p ush issu es forw ard. T h ere has been no identification o f p ressin g issu es, no statem en t o f com m on p u rp o se , not even a m e ssage conveyed to the negotiatin g officials. J u s t like the gen eral d eb ate, ro u n d tab le s are w idely view ed as a filler; as one interview ee pu t it, ‘they’ve kep t the m inisters o ff the str e e t... I ’m not sure it’s a g o o d use o f m in isters’ tim e for tw o d a y s’. T h e im pression is o f m in isters b ein g corralled into a politically b en ign , tim e-con sum in g forum , so that the n egotiators can get on with the ‘real’ w ork. A n oth er interview ee stated that he w ould find it difficult to p e rsu ad e his m inister to com e to the next clim ate ch an ge C O P , if the only o p p o rtu n ity fo r him to p a rtic ip a te in the n e g o tiatio n s w as th rou gh a ro u n dtable. A recurrin g m essage from interview ees w as that m inisters ‘like to feel u se fu l’, an d the ro u n d tab les sim ply do not m ake sufficient use o f the p oten tial o f m in isters to un b lock , and give energy to, political processes.

Direct p a rt i ci pa t io n T h e m ost im portan t im pact o f m in isters on the clim ate change regim e is, o f course, through their direct intervention in the n egotiation s, usually in the very final deal-m aking stage, w hen b argain in g an d deal-m akin g am on g o fficials has go n e as far as it can, an d political, high-level in put is n eeded on the m ost difficult issu es. T h e role o f m inisterial in put in this regard is w idely revered in the clim ate chan ge p ro ce ss. In his statem en t to the open in g o f the C O P 5 highlevel segm en t, the E xe cu tiv e Secretary told m inisters, w ithout ap p are n t irony, ‘Y ou r arrival lifts this con feren ce from tactics to v isio n ’ (Z am m it C utajar, 1999). Several interview ees sim ilarly em p h asized the im portan ce o f having m inisters on site to b rin g the n egotiation s to closure. A s one rem arked, m in isters are ‘the icing on the cake . . . they are there to solve the p ro b lem s that officials c an n o t’. A n o th er com m en ted , ‘m in iste rs. . . d o n ’t know the details,

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and therefore they will not necessarily m ake the “ right” c h o ic e . . . but they’ll m ake a decision . . . they’ll reach an agreem ent’ . W hile officials have to negotiate accordin g to instructions from their governm ents and not deviate beyond a certain bottom line, m inisters, who are m em bers o f the governm ent that has issued the instructions in the first place, can agree to change that bottom line. M oreover, while officials who have been involved in the negotiations for som e time tend to have a good grasp o f details, including the history o f the p rocess and the im portance o f particular w ords and ph rases, m inisters are able to see the bigger picture and relate the negotiations to other policy areas. Indeed, m inisters can often be m ore radical than their officials, as they do not carry the full historical b aggage o f the negotiations with them. This can cause friction. A Latin Am erican official, for exam ple, recalled how she had stepp ed in to stop her m inister from expressin g su pp ort for joint im plem entation with developing countries - contrary to the national and G -77 position - during the K yoto negotiations. In a different exam ple, the South African Minister, in his capacity as facilitator for the final negotiations on com pliance at C O P 6 (part II), put forw ard a radical proposal w hereby a party that failed to com ply with its em ission target under the K yoto Protocol should m ake ‘rep aration s’ (Lefeber, 2001, p 3 1) for the resulting environm ental dam age. T h is w as an entirely new p rop osal com ing at a very late stage, and lack o f agreem ent on it was one o f the final sticking points in the negotiations on that issue. A s a participant in the n egotiations recalled, ‘the introduction o f this new element in the negotiations b y ...V a lli M oosa [the South African M inister], had a profoun d im pact on the contents o f the political agreem ent on com pliance’ (Lefeber, 2001, p39). In a sim ilar vein, in his com prom ise text (the ‘N ote by the P resid en t’) issued on the penultim ate night o f C O P 6, C O P President M inister Pronk introduced ‘two extrem ely in terestin g b u t com pletely novel id eas with co m p le x intern ational ram ifications that had not been discussed in public on even one single occasion during the previous three years’ (G ru b b and Yam in, 2001, p269). The radical nature o f P ro n k ’s text (see also C h apter 11) w as certainly a con tributor to the failure o f C O P 6. D espite the dangers o f excessively original m inisterial input, the b roader approach that m inisters can offer is im portant in the final stages o f negotiations when a package deal has to be constructed. G iven the econom ic im plications o f climate change, particularly for national com petitiveness, it is im portant for m inisters from different governm ents to be able to talk directly and reach u n d e rstan d in g s with one another. M in isterial p resen ce w as therefore absolutely crucial in sealing a deal in the intense final stages o f the Kyoto negotiations at C O P 3, and the post-K yoto negotiations at C O P 6 (part II) and C O P 7. A ccordin g to one interviewee, ‘w ithout a m inisterial session, K yoto w ould have f a ile d . . . b ecau se the m iddle-level b u re a u c ra ts. . . d o n ’t have enough pow er to close the deal. It takes the m inisters to close the d e al.’ In deed, both at C O P 3 and C O P 6 (part II), many delegations had to get final decisions approved not only by the m inister present, but also by other m inisters, or even the head o f state. The Presidents o f R ussia and the U S, the Prim e M inisters of Ja p a n and the U K , and the C hancellor o f G erm any were am ong those who

Table 13.1 Ministerial roundtables held in the climate change regime COP 2

5

8

9

N a m e a n d (abbreviated) top ic Ministerial roundtable • New scientific findings and opportunities for action Informal exchange of views • Progress made: lessons and challenges • The way forward Roundtable discussion • Taking stock • Climate change and sustainable development • W rap up Roundtable discussion • Adaptation, mitigation, sustainable development • Technology • Assessment of progress Cross-cutting themes: capacity-building; synergy/ possible future steps; awareness of vulnerability and adaptation.

M in iste ria l (C o)C ha ir

Sp e cia l features

Switzerland

Ministers only. Presentation by IPCC Chair. Two-page Chair's summary in COP 2 report. No NGOs.

President Norway/Uganda

A b o u t 1 page summary by President in COP 5 report. Total of 94 interventions by parties, 3 by NGOs.

President/UK President/South Africa President Japan/Marshall Islands USA/South Africa Mexico/Germany

Two paragraph summary in COP 8 report, part I. One page summary on each roundtable by President in COP 9 report, part I. Certain parties invited to serve as 'lead off' speakers. Statements by 90 parties, 2 observer states, and 3 NGOs.

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p ro v id ed input to the negotiation s at C O P 3 a n d /o r C O P 6 (part II) through m ob ile teleph on e calls.

E x p e c t a t i o n s a n d the d a n g e r s o f o ver-reliance A n interesting dim en sion to the im pact o f m inisterial presen ce is the influence o f ex p e ctatio n s, with a deeply en grain ed percep tion am on g d elegates that it is m inisters w ho will resolve the o u tstan d in g critical issu es and b rin g the p ro ce ss to closure. A s on e interview ee explain ed : T h e re is still this w o rk in g m yth th at w e [o ffic ia ls] are t h e . . . d ro n e s that w ork to p re p a re the clear o p tio n s that m inisters will sit dow n an d sh arp en their pen s an d tick the on es that they w a n t .. .w h en ev er an issu e floats beyon d a d e le ga tio n ’s ability to resolve it, they say ‘w ell, this has now b eco m e an issu e fo r m in iste rs’ . .. M in iste rs rise a b o v e w h at th e d ro n e s d o . . . E v e ry o n e else is o p e r a tin g u n d e r in stru c tio n s, b u t m in isters, they w rite their ow n in stru ction s . . . W h eth er that myth is true or not, it’s one o f the n egotiatin g tech niques. T h is exp ectatio n , how ever, d o e s h old the d an g er o f in du cin g over-reliance on the part o f o fficials that m inisters ‘w ho yesterday w ere thinking o f som eth ing totally differen t and tom orrow will think ab o u t som eth in g totally different again [w o u ld ] su d d e n ly com e in a n d . . . crack tw o o r th ree seem ingly un crack ab le p o in ts’ (interview ). A s the R ussian d elegate stated on the eve o f C O P 3, ‘there is a view that the m in isters [w ill] com e in n ext w eek and decide everything. We sh o u ld not leave everything to them . . . this w ould b e a m istak e ’ (A G B M 8, 1997f). T h is heavy reliance on m inisters can b e seen as part o f the ten den cy to b rin km an sh ip and the b ac k lo ad in g o f n egotiation s, as d isc u sse d in C h ap te r 12. E ffective m in isterial decision -m akin g is in fact critically ‘d ep en d en t on b u re au cratic legw ork ’ (W ettestad, 1999, p 2 1 3 ). T h at is, it is im portan t for the n egotiatin g officials to resolve the b u lk o f the issu es, leaving only a sm all n u m b er o f political qu estio n s for m inisters to consider. A stark illustration o f this point is the con trast betw een C O P 3 an d C O P 6. By the tim e m in isters m ade their d eb u t on the C O P 3 stage for the last three days o f n egotiation s, m uch o f the draft lan gu age o f the em ergin g p ro to co l h ad already been agreed in principle, leaving only a few clear d ecision s fo r m in isters to m ake (see also C h ap te r 12). A g o o d e x am p le is the d raft article on p olicies and m easu res. Follow in g intensive n egotiation s over a com p licated text on p olicies and m easu res in the first w eek o f C O P 3 (see F C C C /C P /1 9 9 7 /2 ) , by the tim e m inisters arrived, the w hole text w as clean e x ce p t fo r on e set o f sq u are b rack e ts arou n d a single sentence, reflecting ou tstan d in g disagreem en t over the crux o f the m atter, that is, w hether the ap p lication o f policies an d m easu res sh o uld b e m an d atory o r voluntary (see F C C C /C P /1 9 9 7 /C R P .2 ). T h e m ore p erip h eral, detailed text in the article had been cleared up by officials, allow ing m inisters to focu s their attention on the core political issu e that only they could resolve.

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The situation at C O P 6 w as very different. A s G ru b b and Yamin com m ent, ‘during the first week, there w as slow progress on the extensive texts as n e g o tia to rs. . . hung b ack from m aking concessions until their political m asters arrived’ (G ru b b and Yam in, 2001, p268). T h e result w as that, when m inisters arrived at the start o f the secon d week, they were faced with very lengthy and intricate texts full o f square brackets on alm ost every issue under negotiation. Th e sheer n um ber and com plexity o f interrelated decisions still requiring resolution, along with the technical nature o f som e o f these, hindered the p ro c e ss o f n egotiation and decision -m ak in g am on g m in isters, which contributed to the failure o f the session.

D e v e lo p e d and d e v e lo p i n g countries: differing ministerial in p u t O ne o f the m ajor challenges for involving m inisters directly in the negotiations is the m uch greater activity o f industrialized country m inisters relative to those from developing countries (Yamin and D ep ledge, 2004). Although developing countries are usually represented at m inisterial level at m ajor C O P sessions, their delegations often continue, in practice, to be led by officials, with m inisters confining them selves to cerem onial activities. T here are, o f course, notable exceptions to the rather low profile o f non-Annex I ministers. The South African minister, for exam ple, w as highly active at C O P 6 (part II) and, especially, C O P 7, while the Tanzanian m inister played an im portant role in discussion s on the L D C fund at C O P 9. T h e profile o f the N igerian m inister at C O P 6 (part I), w here he held the post o f G -77 Chair, w as also high. D espite these notable exception s, general disparity in level o f participation betw een developed and developing countries has raised obstacles to convening effective negotiation forum s b ased on ministerial participation, due to the differing strengths and ap pro ach es o f m inisters relative to officials, as well as issues o f protocol. O fficials conversant in details can out-m anoeuvre m inisters not so experien ced in technical and textual m inutiae, while the lack o f pow er of officials to agree to com prom ises can frustrate m inisters. Several interviewees pointed to this problem . O n e noted, ‘on the A nnex I side you get m inisterial level, but on the developing country side you get the old cohorts still th e re . . . we foun d that extrem ely un h elpful’ . Several developing country interviewees spok e o f the problem s they faced in securing effective participation by their m inisters in the clim ate change negotiations, including lesser priority given to clim ate change, language barriers, and even the use o f negotiation assignm ents as patronage. O n e interviewee claim ed that: high-level m eetings are attended by peop le w ho d o n ’t necessarily know the issu e, w ho do not n ecessarily listen. In som e c o u n t r ie s ... the m in isters only w ant to t r a v e l . .. t o take advantage o f the free ride, so you are not getting very much out o f that. A nother sum m arized the problem thus:

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m inisters from developing countries have two problem s. First, they d o n ’t know the issue very well, at least not as good as d e v e lo p e d cou n tries. S e c o n d , they c a n ’t sp e ak p ro p e r E n g lish . . . [My] m inister can’t speak English at all, so how can he n egotiate? G iven these difficulties, it is not surprising that officials continue to be the m ost active n e go tiato rs on d ev elo p in g coun try d e le gatio n s. Several interviewees, however, argued that this is changing, albeit slowly, as the profile o f climate change grow s and developing country governm ents becom e m ore aw are o f their interests in the issue. T h e establishm ent o f new fun ds and the C D M have increased the incentives for developing country governm ents to participate in the clim ate change regim e, while grow ing concern over the adverse im pacts o f clim atic changes has also increased aw areness o f the issue.

C h a n n e ls fo r direct participation A lthough m inisterial input is im portant for every C O P session where key decisions m ust be m ade, the ways in which this input is channelled has varied from session to session, with contrasting results. At C O P 3, m inisters were not expected to participate in the official negotiations ongoing in the Com m ittee o f the W hole or inform al groups. A lthough a sm all n um ber o f them were invited to participate in friends grou ps, these groups never becam e central negotiating forum s (see C h apter 9). W here m inisters were particularly active, however, w as in unofficial negotiations, seeking to brok er deals with their counterparts behind the scenes, or sanctioning changes in national positions and approving p ro p o sed com prom ises that went beyond the authority of officials. At C O P 3, therefore, m inisters were m ost active in both the m ost and least form al arenas; that is, alm ost all m inisters m ade statem ents in the trad itio n al form al d e b ate , and m any wrere also e n ga ge d in u n official negotiations in the corridors. They were not, however, expected to be involved in the day-to-day negotiating arenas. M inisters could thus play to their strengths, appearing on the plenary stage and delivering m onologues on the one hand, and engaging in political deal-m aking behind the scenes on the other. The organization o f m inisterial input at C O P 4 differed considerably, largely b ecause the C O P President, h erself a minister, w ished to take a m ore hands-on role in the negotiations, and therefore w ork with her peers. At this session, the final deal-m aking took place in a friends group, w here the problem s o f disparity in participation betw een m inisters and officials w ere thrown into focus. The A nnex I m inisters often foun d them selves overwhelm ed by the m astery of technical and textual details on the part o f non-Annex I officials, and resented not being able to discuss the bigger picture directly with their counterparts. This contributed to the rather aw kward and bad-tem pered political dynam ics including a walk out by G -77 delegates from the friends group - which characterized the final negotiations at C O P 4. C O P 6 saw these problem s m agnified many tim es over. A gain, the presence

206

The Organization o f G lob al Negotiations

o f an active C O P President, along with the highly political nature of decisions to be taken, led to an unusually strong ministerial focus in the organization of the negotiations. Ministers were expected to participate in the IH L P (the main C O P w orking body), ministerial Co-Chairs were appointed to head the four informal negotiating groups, and the vital role of ministers was continuously talked up, notably by inviting them to come to The H ague at the start o f the second week, rather than just for the last three days. It was certainly true that a strong ministerial presence was needed at C O P 6. However, the unbalanced weight given to ministers had unfortunate consequences. Firstly, it alienated the officials who actually knew the issues and the negotiating texts, and, in doing so, upset critical personalities (especially from developing countries) who could have helped forge a deal. Secondly, due to the general disparity in participation discussed above, ministers from Annex I parties once again faced mostly officials from developing countries in the final friends group, which did very little for the effectiveness of that forum and contributed to the defection by the U K and US ministers into private, behind the scenes negotiations. Annex I delegates had reportedly warned the President that this w ould happen earlier in the session. Thirdly, the negotiating texts were still underdeveloped when ministers arrived (see also Chapter 11), and both officials and ministers from all parties expected that the officials would carry on working on these. The informal negotiating groups therefore fell between two camps. They were Co-Chaired by ministers who did not understand the texts and wanted a political discussion, yet alm ost all participants were officials - most ministers did not consider it their proper role to attend such day-to-day negotiations who wanted to negotiate on the texts (Yamin and D epledge, 2004). The ministerial co-chairs were simply not equipped to chair such a textual discussion am ong officials, nor were the officials equipped to engage in a highlevel political negotiation. The experience o f C O P 6 highlighted another m ajor challenge for the organization of the climate change negotiations, that is, the emergence o f more and more issues that are both technical and political in nature, and therefore do not automatically fall within the purview of decision-making by either officials or ministers. D uring the post-Kyoto negotiations, these included, for exam ple, eligibility rules for the flexibility m echanism s and a whole swathe of issues relating to the L U L U C F sector, both highly com plex matters with difficult technical implications. As G rub b and Yamin argued, ‘fundamentally, the issues on the table at The H ague were too political for the technocrats to resolve, and too technical for the politicians to understand’ (G rubb and Yamin, 2001, p269). Resolving such issues requires a more productive interplay between ministers and officials and their different strengths. Such a productive interplay was better achieved at C O P 6 (part II) and C O P 7 (Yamin and D epledge, 2004), primarily by ensuring that ministers were only presented with the core issues requiring their high-level political input, and also through the use o f shuttle diplomacy. At C O P 6 (part II), for exam ple, as noted in Chapter 11, officials working on the negotiating texts in the first few days o f the Conference presented ministers arriving in the latter part of the week with a streamlined docum ent clearly highlighting outstanding political

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issues and the options on the table (F C C C /C P /2001/C R P .8). Two ministers were then appointed to chair two of the informal arenas convened to discuss this document. Crucially, however, these arenas were designated as informal consultations, and not groups, so that the ministers concerned were not obliged to hold any actual m eetings, but could just talk informally to the various coalitions and interested parties. The President’s text that followed shortly afterwards - the ‘Core elem ents’ paper - helped focus the minds o f ministers even more. The use o f shuttle diplom acy - where the President meets individually with representatives of each negotiating coalition - was then critical to overcoming problem s with the disparity in participation between Annex I and non-Annex I parties. Although a friends group was convened, the real deal-making took place through shuttle diplomacy, where ministers and officials did not have to face one another directly (except, o f course, for the President himself). This m ade for a more productive round of exchanges. Although ministers and officials did negotiate together in the final friends group on compliance, the dynamics were very different to the bad-tem pered friends groups at C O P 4 and C O P 6 for two im portant reasons. Firstly, there were only three core issues requiring resolution, all o f them highly political, so that the political/technical gap did not apply. Secondly, the developing countries negotiated as a bloc, through a South African spokesperson who was considered to be endowed with the authority o f her minister, Valli M oosa, who had chaired negotiations on the issue but had now left the Conference. This, along with the determined yet poised personality of the individual negotiator herself, effectively bridged the gap in status between the interlocutors. The experience at C O P 7 similarly reveals the usefulness of shuttle diplomacy. Although a ministerial level friends group was convened, cochaired by two ministers on behalf o f the President, the real deal-making again took place through shuttle diplomacy by the facilitating ministers. In tandem with the official process of shuttle diplomacy, ministers were also very active in their traditional role of bringing the negotiations to fruition through unofficial talks behind the scenes.

S u m m a r y and concludi ng remarks This chapter has shown how ministers can, and must, deliver high-level input into the climate change negotiations, unblocking issues where officials simply do not have the political m andate to com prom ise. This input, however, needs to be channelled judiciously in order to make productive use o f the contrasting strengths o f ministers relative to officials. The very different experiences of C O P session s in the clim ate change regim e su ggests that m inisterial participation is most effective when channelled through shuttle diplomacy, or simply through guiding and instructing officials, wheeling and dealing behind the scenes, and bargaining on a few key issues at the last moment. The role of officials remains highly im portant right to the end of the negotiation process, especially when confronted with issues that cross the technical/political divide,

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as officials have m ore in-depth, longstanding know ledge o f the issues and negotiating texts. O ne o f the m ajor challenges in the clim ate change process is the greater level o f m inisterial participation - although not n ecessarily m inisterial attendance - on the part o f A nnex I parties relative to non-Annex I parties. T h is does create problem s in attem pting to structure negotiating arenas based on ministerial participation. W hile increasing ministerial involvem ent on the part o f non-Annex I parties is o f course a long term goal, in the m eantim e, such strategies as shuttle diplom acy can avoid the rather unconstructive dynam ics of m ost group m eetings w here A nnex I m inisters are confronted with non-Annex I officials. O u tside o f the finales o f m ajor negotiating rounds, w here m inisters have been involved in the actual bargaining p rocess, forum s such as roundtables have been used to try to prom ote high-level political discussion and elicit m inisterial input. This area is indeed one where the climate change regim e has shown itself able to learn, abandon in g old practices (such as the general debate), developing m ore innovative forum s (the roun dtables), and im proving on these from session to session. T h e general con sensus am ong interviewees, however, is that the clim ate change regim e has not yet found ways o f effectively h arnessing the political leadersh ip, skill and energy that m inisters could yield. An alternative option could be to convene a high-level segm ent only once every two or three years, rather than at each annual CO P, so that a stock-taking m inisterial roun dtable w ould have m ore m eaning and purpose. Inviting that roundtable to actually negotiate a declaration to drive the future agenda o f the C O P could then be a useful m eans o f helping to break the stale discussion s that currently characterize m uch o f the clim ate change negotiations.

14

Participation by Non-Governmental Organizations

T h e w orld is w atching (the Clim ate A ction N etw ork, 1997).

I nt roduct ion We now turn to exam ine channels in place for the participation in the climate change negotiations o f non-governm ental organizations (N G O s).1 A huge variety o f N G O s are active in the clim ate change regim e. T h ese encom pass a very w ide spectrum o f differing objectives and shades o f opinion, from environm ental leaders to laggards, m irroring the spectrum o f parties and indeed having greater extrem es. N G O s carry out a variety o f self-appointed roles in the negotiations. Som e focus on raising aw areness o f clim ate change, others lobby for the interests o f their own constituencies or the environment, an increasing n um ber provide data, inform ation and analysis, while still m ore are content with just observing proceedings o f interest to their work. O penn ess to N G O input is widely seen as desirable in international environm ental negotiations. A s the clim ate change secretariat itself put it: The participation o f N G O s is a fundam ental elem ent o f the C onvention process. It helps to bring tran sp a re n c y ... facilitates inputs from geographically diverse sources and from a w ide sp ectru m o f e x p e rtise and p e rsp e ctiv e , im p ro v es p o p u lar u nderstanding o f the issues, and prom otes accountability to the societies served (F C C C /S B I/2 0 0 4 /5 , p4). This chapter begins with an overview o f rules for the adm ission o f N G O s to the regim e, b efore looking at the form al rules for their participation in the negotiation process. We then turn to m ore inform al channels through which N G O s can input into the process, which, as we shall see, in fact tend to be m ore significant than the form al avenues.2

N G O s a n d the climate c h a n g e r eg ime T h e clim ate change regim e has alw ays been relatively open to involvem ent from N G O s , with an expan sive adm ission p ro ce ss and n um erous channels

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fo r N G O in puts. T h is open ap p ro ach w as establish ed from the outset by U N G A resolution 4 5 /2 1 2 , which lau nch ed negotiations on the C onvention. T h e resolution explicitly ‘invite[d ] relevant non -governm en tal organ ization s to m ake con tribu tion s to the n egotiatin g p ro c e ss’ (paragraph 19). The resolution , however, also m ade clear the fun dam en tal b asis for N G O in volvem en t in the clim ate c h an ge regim e (akin to m o st oth er intergovernm ental regim es) in confirm ing ‘the u n derstan din g that these o rgan izatio n s sh all not have any n egotiating role d u rin g the p r o c e ss ’ (em ph asis ad d ed ). T h e form al rules governing attendance and participation by N G O s that are set out in the Convention and rules o f procedure are sparse, and m irror those in other regim es.’ The climate change regim e, however, has built on them to develop its own set o f m ore detailed inform al practices. In many ways, the developm ent o f N G O involvem ent has run in parallel with the three m ain negotiating rounds in the climate change regim e. Channels for participation granted to N G O s during the Kyoto Protocol negotiations were highly dependen t on the discretion o f the particular presiding officer, with the subsidiary b odies - including the A G B M and A G 13 - ad optin g different approach es. T h e A G 1 3 , for exam ple, w as open and innovative in its elicitation o f N G O input, w hereas the A G B M w as m ore conservative in its approach. D u rin g this p erio d, a deb ate w as underw ay in the su b sid iary b o d ie s to con sider differen t option s for adm itting and involving N G O s . T h is had its origins in a p ro p o sa l put forw ard by N ew Z ealan d during the negotiations on the C onvention to set up a ‘b u sin ess con sultative m ech an ism ’ to enhance in p u t by b u sin e ss an d in d u stry N G O s ( B I N G O s ). T h e d e b a te w as interesting in itself for its particip atory nature and open n ess to N G O inputs. A w ork sh op w as convened with N G O p articipation , in dividual N G O s w ere con sulted on their views and ideas, and the secretariat p u t forw ard a set o f p ro p o sa ls b ased on these in puts from N G O s . T h e secretariat’s p ro p o sa ls, however, fo cu sed on im proving existin g p ractices rather than exp lorin g new on es, as the S B S T A decided early on to circum scrib e the deb ate in this way (see S B S T A 3 re p o rt, p a ra g ra p h 5 0 c). D e sp ite the m any in novative p ro p o sa ls that were put forw ard, the single outcom e o f this long process w as thus the ad optio n o f decision 18/CP.4 at C O P 4, which establish ed the default right o f N G O s (and IG O s) to attend and observe m eetings o f con tact g ro u p s (see below ). O th er option s were not pursued partly due to the absence o f any com m on view am ong N G O s as a w hole as to how their participation could be enhanced (op cit). T h is partly reflects the very different ways in which N G O s seek to m ake their views heard. The environm ental N G O s (E N G O s ), a m ore united group, tend to be vocal and visible in official forum s (e.g. m aking statem en ts, runnin g side even ts, stagin g high p ro file , m edia-savvy dem onstrations, issuing strong written position p apers), while B IN G O s tend to operate m ore on an individual basis behind the scenes, lobbying delegates and the organizers through chats in the corridors, private m eetings and h ospitality events.

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It is also true that N G O participation during the K yoto Protocol negotiations took place in a rather antagonistic context. Although N G O input w as w elcom ed, the division o f m ost N G O s into two cam ps - the ‘green ’ E N G O s and the m ostly ‘grey’ B I N G O s - f o s t e r e d an atm osphere o f latent confrontation, especially am ong the m ore extrem e sections o f each cam p. This follow ed through to parties, with developing countries in particular generally highly suspicious o f N G O s. T h e approach o f the busin ess com m unity as a w hole was certainly m ore negative tow ards action to ad dress clim ate change than it is today, with organizations such as the G lo b al Clim ate Coalition and other business groups widely known to be lobbying hard within the U S, and w orking together with obstruction ist countries (notably O P E C ) to block the negotiations. The post-Kyoto period saw a m ore open attitude on the part o f the presiding officers and secretariat to participation by, and inputs from , N G O s. This paralleled the em ergence o f a m ore constructive approach am ong much o f the b usiness community, as it began to recognize the b usin ess opportunities o f a carbon-constrained w orld. As one B IN G O interviewee acknow ledged: over the last couple o f years, we have gained m ore access, b ecause o f the acknow ledgem ent that we have got som ething to o f f e r ... T h ings have im proved since K yoto prim arily because industry has been m uch m ore constructive in the process. M oves to secure the m ore constructive engagem ent o f N G O s post-K yoto w ere accom panied by the standardization o f practices across the subsidiary b odies, notably the adoption o f the above-m entioned decision 18/CP.4 on attendance at contact grou p m eetings. Interestingly, however, N G O s have expan ded their participation m ore through the gradual developm ent of inform al practices, than through the negotiation o f form al rules. An im portant move, for exam ple, has been establishing channels for N G O s to subm it written views to the negotiation p rocess, an innovation that is due as m uch to technical developm ents (the rise o f the internet) allowing this to be done at low cost, than any lobbying on the part o f N G O s (see also below ). The post-M arrakesh period has seen the issue o f N G O involvem ent back on the form al agenda o f the subsidiary bodies. This m ove w as prom pted by a conjunction o f developm ents, notably the proliferation o f w orkshops, w here rules for invitation and participation by N G O s were deem ed to require clarification and stan d ard izatio n . N G O s , especially from the b u sin e ss community, sought m ore extensive and establish ed participation rights, and the U S, sym pathetic to their concerns, raised the issue in the SB I in 2002.4 T h e ensuing debate prom pted a m ore w ide-ranging exam ination o f prevailing practices governing N G O participation in the clim ate change p rocess, including p rocedures for adm ittance, the constituency system , and channels for receiving inputs. T h e debate w as ongoing at the time o f w riting, but ap peared to be follow ing the direction o f the earlier debate on N G O participation during the period o f the K yoto P rotocol negotiations, that is, to reaffirm , strengthen and codify existing practices, rather than develop any m ajor new consultation m echanism .

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Rules f or a d m i s s i o n T h e right o f N G O s to be represented at session s o f the clim ate change bodies is enshrined in the C onvention and draft rules o f procedure. F C C C Article 7.6 m akes a distinction betw een two types o f organizations. T h e first com prises U N bodies, that is, the U N , its specialized agencies and the International A tom ic Energy Agency, along with states not party to the C onvention, who ‘may be represented at session s o f the C O P as ob servers’ , that is, they are unconditionally adm itted. The second consists o f any other bodies or agencies, ‘w hether national or international, governm ental or non-governm ental’ , that is, both N G O s and IG O s. T h ese organizations are subject to m ore detailed criteria for adm ittance, namely that they: • • •

should be qualified in m atters covered by the Convention should inform the secretariat o f their wish to be represented at a session of the C O P as an observer and will b e refused adm ittance if at least one third o f the parties present object.

The rules o f procedure repeat these rules and provide for their application also to sessions o f the subsidiary bodies, while requiring the secretariat to notify observers o f the date and venue o f sessions to enable their representation (Rules 6-8). A set o f m ore detailed inform al practices has becom e establish ed within the secretariat to im plem ent these form al rules on adm ission. T h ese have been explained to the parties in docum ents prepared by the secretariat for the SB I, as part o f the pre-K yoto and post-K yoto debates on N G O involvem ent (see F C C C /S B I/1 9 9 7 /1 4 /A d d .l, paragraph 3, and F C C C /S B I/2 0 0 4 /5 , section II, respectively). A s part o f the pre-K yoto debate, the SB I form ally concluded that ‘current arrangem ents for the accreditation o f non-governm ental organizations were satisfactory and that no change in the accreditation procedures was req uired’ (SB I 8 report, paragraph 81a). As part o f the post-K yoto debate, parties once again took note o f current accreditation practices, but, at the time o f w riting, decided to con sider them further, due in part to concerns over the constituency system (see SB I 20 report, paragraph 100). A ccording to these practices, N G O s that wish to be adm itted m ust fulfil three b asic criteria to p ass through a first screening by the secretariat: 1 2 3

They m ust be ‘qualified in m atters covered by the C on vention ’ as required by Article 7.6. T h eir go vern an ce stru ctu re m ust be in d e p e n d e n t o f any nation al governm ent. They m ust confirm their non-profit, tax-exem pt status.

In view o f the all-encom passing nature o f climate change, the constraint tends to be the dem onstration o f non-profit status, rather than o f being qualified, usually interpreted as having an interest in climate change. The non-profit criteria requires busin esses to group together in non-profit coalitions rather

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than represent them selves (Yamin and D ep ledge, 2004). O rgan izations that carry out functions on b eh alf o f governm ents, or are fun ded by governm ents, are not necessarily excluded if their governing structure is itself independent. The secretariat com piles a list o f successful applicants b ased on these three criteria for the C O P B ureau for its clearance. This is usually a formality, and it is rare, but not unheard of, for the B ureau to raise concerns. The list o f cleared applicant N G O s (and IG O s) is then put to the C O P for a form al decision on adm ission. D ue to the large n um ber o f N G O s seeking adm ission, applications received in betw een sessions o f the C O P that have p assed through the secretariat and B ureau may be presented to the next subsidiary body session for provisional adm ission , pendin g form al action by the C O P (Yamin and D ep ledge, 2004). O n ce adm itted, N G O s remain so. T h e exception is for certain very high-profile C O P session s (e.g. C O P 3), where many N G O s (especially ones from the host country) were expected to attend only that session, and were therefore invited to reapply for adm ission to subsequen t sessions. The adm ission o f observers is very rarely challenged by the COP. As W ettestad (1999, p212) notes, the clim ate change regim e thus seem s to have ad op ted an ‘overall inclusive m odel’ , with generous criteria for adm ission that have enabled a w ide variety o f organizations to attend regim e body session s, including those o p p o se d to m eaningful climate change m itigation action.5 The num ber o f adm itted N G O s and IG O s has risen steadily over the lifetime o f the clim ate change regim e. O n e hundred and seventy-seven N G O s and 20 IG O s were adm itted at the time o f C O P 1. T h is rose to 298 N G O s and 31 IG O s by the time o f C O P 3, and to 619 N G O s and 50 IG O s by C O P 9. T h e rise in adm itted N G O s has not been accom pan ied by a parallel rise in the n um ber o f N G O s actually attending sessions (Yamin and D ep ledge, 2004). L e ss than h alf o f adm itted N G O s have been represented at C O P session s since C O P 6 (and fewer at S B S T A /S B I sessions) com pared with 79 per cent at C O P 3 and 93 per cent at C O P 1. In term s o f the num ber o f individual participants, N G O s regularly constitute alm ost half the total n um ber o f delegates. This proportion tends to rise for high-profile finales o f negotiating rounds. At C O P 3 in K yoto, for exam ple, 64 per cent o f participants were N G O representatives, with that figure reaching 56 per cent for C O P 6 in The H agu e (see F C C C /S B I/2 0 0 4 /5 , paragraph 37). An im portant dim ension to N G O presence in the climate change regim e is the great disparity in representation betw een N G O s from O E C D countries on the one hand, and from developing countries and E ITs on the other.6 O n the eve o f C O P 3, 91 per cent o f N G O s adm itted to the clim ate change regim e had ad dresses in O E C D countries (with 21 per cent in the U S alone). The rem ainder hailed from non-A nnex I parties, with only one N G O registered in an E IT (see F C C C / S B I / 1 9 9 7 /1 4 / A d d .l, p aragrap h 13).7 A lthough the situation has im proved som ew hat, m ore than 7 5 % o f N G O s are still b ased in Annex I parties, overwhelm ingly from O E C D countries. The disparity tends to be m ore striking in the B IN G O constituency than the others. The main E N G O coalition, the Clim ate Action N etw ork, usually fields representatives from its developing country and E IT chapters (e.g. C A N -South A sia, C A N -

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A frica, C A N -C e n tral and E aste rn E u ro p e ). T h e In d ige n o u s P e o p le ’s O rg a n iz atio n s (IP O s), alth ough sm all in n um ber, are alm o st entirely developing country based, while the R esearch-oriented and Indepen den t N G O s (R IN G O s) also include a handful o f developing country research institutes and universities. T h e B IN G O s , however, hail alm ost exclusively from O E C D countries, with only a sm all handful o f developing country or E IT delegates occasionally present. W hile the clim ate change regim e exten ds funding to assist governm ent delegates from developing countries and E IT s to attend sessions o f the regim e b o dies, there are no sim ilar m easures in place to su p p o rt and prom ote the attendance o f N G O s from those countries. N G O s, especially E N G O s , have long called for such funding (Yamin and D ep ledge, 2004), and it has featured in se cre tariat p r o p o sa ls c o n sid e re d in b oth the pre-K y o to (see F C C C /S B I/1 9 9 7 /1 4 /A d d .l) and post-K yoto (see F C C C /S B I/2 0 0 4 /5 ) debates. G iven that the state o f the participation fund for eligible parties remains precarious, the likelihood o f parties funding N G O participation is slim.

N G O co n stituencies An inform al practice has em erged over time within the secretariat o f recognizing constituencies o f N G O s (Yamin and D ep ledge, 2004). Five o f these are currently in place: • • • • •

Environm ental N G O s (E N G O s) Business and Industry N G O s (B IN G O s) L ocal G overnm en t and M unicipal Authorities (L G M A s) Indigenous P e o p le ’s O rganizations (IP O s) and R esearch-oriented and In depen den t N G O s (R IN G O s).

Th e constituency system has developed on a bottom -up, pragm atic basis (Yamin and D ep ledge, 2004). E N G O s and B IN G O s are the m ost longstanding constituencies, dating back from the first session o f the Intergovernm ental N egotiating C om m ittee (IN C ) that negotiated the C onvention, and are com m only rep resen ted in alm ost all en viron m en tal n egotiation s. They organized them selves into um brella groupings early on in the clim ate change process, in m uch the sam e way as parties have organized them selves into negotiating coalitions. T h ese are still the two m ost active constituencies. The L G M A constituency w as ad ded at C O P 1, follow ing high levels o f activity and lobbying by the constituency at that session, although it has been less active since. T h e IP O s em erged as a new voice in the climate change regim e postK yoto, and were recognized as a constituency at C O P 7 in 2001. D esp ite being represented by only a few individuals at negotiating sessions, they have been vociferous in calling for special recognition on account o f the situation o f their m em bers, w hose livelihoods they argue will be directly affected by C O P decisions (e.g. on the C D M ). They have p u rsu ed these concerns in other parts o f the international arena. A Perm anent Forum on Indigenous Issues, for exam ple, w as established as an advisory body to the U N ’s E con om ic and Social

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C ouncil (E C O S O C ) in 2000, and has m ade rccom m cndations to increase involvem ent o f IP O s in the clim ate change regim e, including by establishing an inter-sessional w orking group on indigenous peop les and related issues (see F C C C /S B I/2 0 0 4 /5 ). The R IN G O s are the latest constituency to be ad ded to the list, achieving recognition at C O P 9 in 2003. This constituency consists of universities and other independent research institutes, who decided to group together in response to a sense that they were m issing out from the better access channels afforded to the existing constituencies. T h e five constituencies are not exclusive. T h ere are, for exam ple, N G O s that w ould describe them selves as ‘environm ental’ who are not part o f the E N G O s , while the newly form ed R IN G O s currently include only a minority of research-focused N G O s active in the regim e. Similarly, there are many N G O s - trade unions, w om en, parliam entarians, faith-based grou p s and others - who have not form ed their own constituencies (Yamin and D ep ledge, 2004). Although it is only an informal practice, without roots in any formal rules, the constituency system is now well established. It is used by the secretariat to organize participation in the negotiation process, including speaking slots at the high level segment, invitations to w orkshops, channelling o f written inputs (see below), organizing meetings with the presiding officers and other dignitaries, and consultation on procedural issues (e.g. the code o f conduct discussed below). The secretariat liaises with the designated focal point o f each constituency, which then organizes the required input am ong the constituency m em bers. Individual N G O s that are not in any constituency may also participate in the negotiation process and liaise with the secretariat in the sam e way. N onetheless, several m em bers o f the newly-formed R IN G O constituency reported in their interviews that access had im proved since the establishm ent o f their constituency. The constituency system therefore helps the secretariat, as well as N G O s themselves, who can pool their resources. The N G O constituencies tend to meet daily during negotiating sessions to coordinate their work and exchange information. The constituency system is thus a pragm atic, innovative and simple response to the com plexity o f the climate change regime, perm itting more m eaningful and efficient participation by the 600+ N G O s in the regime than w ould otherwise be possible. The system is not, o f course, unique in the international environmental arena. A genda 2 1,8 for exam ple, recognizes nine m ajor groups. In line with the informality o f the constituency system, no form al procedures exist for setting up a constituency. The process through which the IP O and R IN G O constituencies were form ed, however, established certain precedents. O ne o f these is that the secretariat has served as the gatekeeper, arbitrating on whether, and how, new groups o f N G O s can becom e a constituency. The form ation o f the R IN G O constituency, for exam ple, involved several exchanges o f correspondence between N G O representatives and the Executive Secretary. A ccording to the secretariat w ebsite, N G O s wishing to set up a constituency should now fulfil the following criteria: • •

include a critical m ass (unspecified) o f m em bers provide a focal point for liaison with the secretariat

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participate regularly at negotiating session s and provide com m on inputs (e.g. statem ents) and have channels in place for inform ation exchange am ong m em bers.

T h e actual process for considering a request b ased on these criteria is unclear. In the case o f both the IP O s and R IN G O s, the C O P Bureau gave eventual approval to their requests, so that they were recognized as constituencies in 2001 and 2003 respectively. However, as decisions o f the C O P Bureau and m inutes o f its m eetings are not m ade available (see C h apter 5), there is no official accessible record o f how this decision w as m ade. T h e constituency system is thus a very go od exam ple o f an inform al establish ed practice that em erged over time, in this case through the com bined actions o f the secretariat and N G O s , in the absence o f any rules, guidan ce or endorsem ent from the parties through the C O P or SB I. T h e absence o f any set p rocedures for establishing a constituency perhaps helps explain why, between C O P 1 and C O P 6, there were no requests by any group o f N G O s to form a constituency, despite the wide variety o f active N G O s other than the existing E N G O s , B I N G O s and L G M A s. Private conversations with research N G O s suggest that the possibility o f establishing a new constituency had sim ply not been considered as an option. The option only cam e into the open follow ing the request for a m ore effective voice by indigenous peoples, with the secretariat and the C O P B ureau seeing the form ation o f a new constituency as an easy (although for the IP O s unsatisfactory) m eans o f ad dressin g their concerns. The R IN G O s then follow ed suit, once the possibility o f doing so had been open ed up. T h e experience o f the constituency system points to one disadvan tage of unwritten inform al practices, even if they are w ell-established; b ecause the practices are not necessarily clear to all, or are interpreted differently, ability to m ake use o f them is rather arbitrary. A nother disadvantage is that when, perh aps inevitably, som e controversy em erges, the establish ed practice is much m ore vulnerable to challenge. W hile a form al rule can be defended on the groun ds that it w as form ally ad op ted through accepted procedures, an establish ed practice can only appeal to precedent or logic. The constituency system and its use o f focal points, for exam ple, were challenged by the U S in the SB I in the post-M arrakesh period. Revealingly, the U S stated ‘To our know ledge, there are no “ recognized constituency g r o u p s” in the Convention, n or have we the parties ever id en tified any such g r o u p s ’ (see F C C C /S B I/2 0 0 2 /M IS C .8 , em phasis ad d e d ).’ At the time o f writing, the constituency system w as being sub ject to review by the SB I as part o f the wider debate on N G O participation.

C h a n n e l s f or participation The code of c o n duct A notew orthy developm ent in the post-M arrakesh period has been the devising o f a code o f conduct to guide participation by N G O s in the climate change negotiations. This code o f con duct - officially known as ‘G uidelin es for

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the p articipation o f rep resen tatives o f n on-govern m ental organ ization s at m eetin gs o f the b o d ie s o f the U n ited N atio n s F ram ew ork C on ven tion on C lim ate C h an g e ’10 - w as p re p are d by the secretariat in con sultation with the N G O con stituencies. It re sp o n d ed to a sm all n u m b er o f in stan ces w here in d iv id u a ls atte n d in g u n d e r the b a d g e o f en v iro n m e n tal N G O s w ere resp o n sib le for d isru p tion to the n egotiation p ro c e ss and the h arassm ent o f som e delegates (Yam in and D ep le d g e , 2 004). T h e co d e o f co n d u ct is not an official d ocu m en t, and h as not b een the su b ject o f n egotiation in the su b sid iary b o d ie s. Rather, it rep resents an attem p t by the secretariat to set out m utual ex p e ctatio n s for the b eh aviou r o f N G O s at n egotiatin g session s, ‘reflecting curren t p rac tic e ’ an d b ase d on gu id elin es ‘go vern in g N G O p a rtic ip a tio n ’ elsew here ‘in the U N sy stem ’. M o st o f its p rovisio n s are self-evident - no h arassm en t o r restriction o f m ovem en t, no u n au th o rized d e m o n stratio n s w ithin U N F C C C v en u es, no d isre sp e ctfu l treatm en t o f country flags, m aintenan ce o f respect for p a rticip a n ts’ ‘social, cultural, religious and other b e lie fs’ - an d, if they constrain the legitim ate activities o f rep u tab le N G O s , d o so only m arginally. N everth eless, the co d e o f c on d u ct, d e sp ite its in form al nature, w as not universally w elcom ed , with som e N G O s view ing it as a sign o f m istru st o f their w ork, an d p o ssib ly also a slippery slo p e that could be used to im p o se greater restriction s in the future.

O b se rv in g T h e m ost b asic form o f p articip ation by N G O s in the clim ate ch an ge regim e is through o b servation o f the n egotiation s. T h is form s the b asis for m aintaining the tran sparen cy o f the p ro ce ss, as well as the accoun tab ility o f national delegates to their p o p u latio n s b ack h om e. A s such , ob servin g is not n ecessarily just a passive act. By o b servin g the n egotiation s, N G O s can obtain the in form ation they need to follow the n egotiation p ro c e ss, m on ito r the p ositio n s o f governm ents, develop their ow n stan ce, and rep ort b ack to their m em bers. T h e flip sid e o f the tran sparen cy that N G O p resen ce provid es, however, is the concern that it can d isco u rage parties from show ing flexibility o r exp lorin g p o ssib le trad e-offs. T h e ab sen ce o f scrutiny from N G O s an d the m edia is in deed com m on ly view ed as pivotal to en cou ragin g parties to sp e ak m ore freely. E x p lain in g his decision to close the A G B M n on -grou ps to ob servers during the K y oto P ro to c o l n egotiation s, E stra d a said in his interview ‘I do think that n egotiation s have to b e p r iv a t e ...I t d o e sn ’t m ake sen se to have p e o p le n egotiatin g with N G O s [p r e s e n t ]. . . not b e ca u se there is som eth in g to h ide, b u t it is difficult for p e o p le to m odify positio n s w hen they are b ein g w atch e d ’ . M any party interview ees agreed that they could not en visage serious n egotiation s in the p resen ce o f N G O s . O n e interview ee rem arked: Y ou can n ot have a con tact g ro u p that is open to d iscu ss sensitive is s u e s . . . o f cou rse if they d o it, they [the n e gotiators] are go in g to m aintain their positio n , b e cau se they know they [the N G O s ] are there . . . they will not m ove a centim etre. B ut if you are in sm aller g ro u p ...ta lk in g to p e o p le w ho can u n d e rstan d you, m aybe

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because they arc civil servants and have similar problem s, then you can open up, and you can say what you couldn’t say. This helps explain why the rights of N G O s to observe proceedings diminish with the greater informality o f the arena (see Chapter 9).

Plenary N G O s have always been allowed to observe C O P and subsidiary body plenary m eetings.11 Squabbles som etim es arise over seating space, but these are logistical in nature and typically soon resolved. The only major exception to this was the established practice in place during the Kyoto Protocol negotiations whereby N G O representatives were, as a general rule, prohibited from coming onto the main negotiating floor during plenary meetings. This practice dated back to an incident just before C O P 1 in 1995. At the 11th (and final) session of the IN C , objections were raised to the presence of fossil fuel B IN G O lobbyists on the negotiating floor, whose advice to O P E C states appeared to forestall an emerging consensus on the rules of procedure. D espite protests by N G O s at their subsequent exclusion from the negotiating floor, the C O P Bureau maintained the general practice, but allowed the Chairs of each subsidiary body to exercise discretion in granting access. The SBSTA Chair, for example, took a more relaxed attitude, providing a seat for each N G O constituency on the meeting room floor (e.g. see SBSTA 6 report). Chair Estrada, however, who had been chairing the IN C 11 meeting at which the abovementioned incident occurred, applied the practice strictly in the A G BM . The established practice gradually lost its relevance when the secretariat moved its headquarters from Geneva to Bonn, whose conference venues do not have such clearly separated spaces for N G O seating as the U N building in Geneva. In addition, the advent of mobile phone technology now allows N G O s to communicate with delegates without coming onto the floor. One interviewee recalled, ‘at IN C 11, when the Kuwaiti delegate got up to go to the toilet, a load of delegates followed him to ensure he didn’t talk to anyone! Now with cell phones it’s all different. Technology has affected the process.’ It is not unusual for sharpeyed onlookers to witness a mobile telephone conversation between a country delegate on the negotiating floor and an N G O representative seated in the gallery, at the conclusion of which the country delegate will raise his flag to make an intervention, quite clearly on advice of that N G O .

Inform al groups The adoption o f decision 18/CP.4 means that N G O s are now routinely permitted to observe proceedings in open-ended contact groups, unless at least one third of parties object. This m arked an im portant change from the Kyoto Protocol negotiations, where N G O s were typically not given access to informal groups. As noted above, for exam ple, Chair E strada closed the informal non­ groups he established from A G B M 6 in March 1997 onwards. This aroused strong objections from N G O s, illustrating the im portance that most attach to observing. The journal E C O reported:

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N G O s are very d isap poin ted by the C h airm an ’s decision to exclude us from im portant negotiating sessions. Sim ply through the establishm ent o f a new category - non-groups - at yesterday’s m eeting, the rules o f transparency and public participation no longer apply (E C O , 1997a). E stra d a’s reasons for closing the non-groups were founded not only on the assum ption that parties w ould be m ore reticent to negotiate in the presence of N G O s, but also on genuine concern that the presen ce o f obstructionist N G O s might ham per the negotiations. T h e situation changed at the C O P 3 finale. From the secon d w eek, N G O s w ere adm itted to observe proceedings at all m eetings chaired by E strad a, although the other inform al grou ps rem ained closed. T h e last night o f negotiations w as com pletely open to all observers, including television cam eras, when E strad a actively sought out public scrutiny to place pressure on parties to reach agreem ent. This case illustrates well the contrasting roles o f N G O s , and how these can be m ore or less valued at different points in the process. W hen he w anted to encourage parties to intensify their negotiations in the non-groups, Chair E strada sought to rem ove the scrutiny and transparency that com es with N G O presence in order to give parties the necessary privacy to engage in bargaining. H ow ever, for the final deal-m aking on the last night o f C O P 3, he sought to m ake use o f the transparency and scrutiny provided by N G O s that he had previously curtailed, as a strategy to place the strongest possib le pressure on parties to com prom ise and not block agreem ent. Even with the adoption o f decision 18/CP.4, presidin g officers o f contact groups may still close the group to observers at any time. T h is has often been done when contact grou p s have begun to engage in serious b argain in g in the latter stages o f negotiations. D ecision 18/CP.4 also refers specifically to ‘openended contact g ro u p s’. H ow ever, as noted in C h apter 9, the inform al groups convened in the climate change regim e span a w ide spectrum and have been known by a variety o f different nam es, especially at negotiation finales. Participation by N G O s in any forum not known as a ‘contact gro u p ’ , therefore, is essentially at the discretion o f its presidin g officer (Yamin and D ep ledge, 2004). T h e m inisterial ‘cluster g ro u p s’ and negotiating grou p s at C O P 6, C O P 6 (part II) and C O P 7, for exam ple, were all closed to N G O s. M oreover, there is no com pulsion on C hairs o f inform al consultations to involve N G O s.

Access to docum entation M eaningful observation and un derstanding o f proceedin gs requires access to the docum entation under discussion. N G O s have always had access to all docum entation distributed in the room in which they are present, although often in lim ited supply and later than the parties. In deed, all official U N F C C C docum ents are m ade available to N G O s , and also to the public at large, through the U N F C C C w ebsite. T here is no such thing as a restricted docum ent in the climate change regim e. This does not, however, apply to all unofficial docum entation, namely, the n on-papers (for an explanation o f the main types o f official and sem i-official docum entation, see Table 11.1). W here these are

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distributed in a m eeting in which N G O s are present, or m ade generally available, N G O s will also receive a copy, subject to the above provisos. W here the m eeting is closed to observers, N G O s will need to lobby delegates or the organizers outside the room to obtain a copy, and indeed will often be successful in doing so.

M a k i n g s ta tem ents M aking statem ents in plenary m eetings has long been an establish ed channel for N G O s to input into the clim ate change negotiations. At its very first session, for exam ple, the IN C gave effect to the explicit call in U N G A resolution 45/212 for N G O s to ‘m ake con tribu tion s’ to the negotiations on the Convention (see above) by inviting ‘two observers representing different grou p s o f non-governm ental organizations [in effect, the B IN G O s and E N G O s ] . . . to speak at the end o f the general d eb ate’ . Statem ents can enhance transparency by providing a channel for N G O s to give feed back to governm ent delegates on developm ents in the negotiations, as well as to form ally com m unicate inform ation and ideas on possib le innovative solutions to the problem s facing the negotiations. N G O s are granted several speaking slots during C O P sessions under the standing C O P agenda item ‘Statem ents by N G O s ’. T h ese speakin g slots are allocated by the secretariat to the constituencies and then accordin g to dem and, with the aim o f securing a representative range o f speakers. As illustrated in Table 14.1, a w ide spectrum o f different N G O grou ps are typically represented, including, for exam ple, trade unions and faith groups, who very rarely speak at other tim es in the process. T h e two or three statem ents by E N G O s and B IN G O s reflect the efforts m ade by those constituencies to field locally-based m em bers, as well as representatives o f their international chapters. In the case o f the B IN G O s , it also reflects differences in perspective am ong their m em bers, who w ould therefore be unable to agree on a com m on statem ent. T a b le 14.1 Statem ents made by N G O s at C O P sessions COP

ENCO

B IN G O LG M A IPO

1

V vv vv vvv VVV2 VVV2 vv

V vv vvv vvv vvv vvv VVV a/VV vv

2 3 4 5 6 7 8 9

vvv

RIN G O Parliam ent Youth

vv vv V vv vv V

Faith

Lab ou r Other

V a/

V V V V

V

V

V

V

V

V

V

V V

a/ V V V V

V

V

V V V

V

V

V

Note: 1 Scientists fo r gl o b a l responsibility. Note: 2 Inte rn a ti o n U n io n fo r t he C o n se r v a tio n o f Nature. Note: 3 E u r o p e a n L a n d o w n e r s ' O rg a n isa tio n .

VV V

V' V V3 V3

Participation by N o n -G overn m en tal O rgan ization s

221

T h ese statem en ts, however, are alm ost alw ays gen eral and highly rh etorical in n ature, akin to the equivalen t statem en ts m ad e by m inisters an d other h ead s o f delegation in the gen eral d eb ate (see C h ap te r 13). T h e statem en ts d o serve an im portan t p u rp o se in allow ing N G O s to put their view s on record and thereby in fluen ce the gen eral thrust o f the intern ational clim ate change agen da. O n e E N G O interview ee, fo r e xam p le , o ffered the follow ing persp ective on the statem en t by the C lim ate A ction N etw ork at C O P 3: T o b rin g attention to w h at’s really h ap p en in g can b e a really p ow erfu l thing to do. It w as in the seco n d w eek, and everything w as b o g g e d dow n, an d it w as a rem inder, a p e p talk, o f why are w e h e r e . . . in the lead up to K yoto, the plen ary statem en ts w ere the only op p ortu n ity [to p articip ate] so they w ere im portan t. It is d o u b tfu l, however, w hether such rhetorical N G O statem en ts im pact on the actual n egotiation p ro c e ss in any practical way at all. A s one interview ee p u t it, ‘T h e interventions by N G O s are, 95 p er cent o f the tim e, pred ictab le, so there are no su rp rises w hatsoever, m ake that 99 p er cent o f the tim e, p re d icta b le ’. N G O s are also perm itted to m ake statem en ts in the su b sid iary b od ies, usually on the b asis o f dem an d and at the discretion o f the p resid in g officer. T h e exten t to which N G O s have b een gran ted sp e ak in g slots, an d in deed have ask ed for them o r taken them up, h as varied con sid erab ly in the clim ate chan ge regim e (Yam in and D e p le d g e , 2004). D u rin g the K y oto P ro to co l n egotiation s, C h air E stra d a typically allocated one tim e slot p e r n egotiatin g session for each o f the three (at the tim e) con stituen cies to m ake a general statem en t. T h e se statem en ts w ere not affo rd ed a p rom in en t p lace, usually b ein g sch ed u led at the very en d or b egin n in g o f a m eeting, w hen m any d elegates w ere driftin g in an d out an d not fully attentive. It w as only at the last three session s o f the A G B M that all three con stituencies availed them selves o f the op p o rtu n ity to sp e ak , and only the E N G O s sp o k e at every A G B M session . T h e ab sen ce o f statem en ts by B I N G O s in the early session s can be attribu ted to the differen ces o f opin ion betw een different faction s, w hich m eant that the constituency as a w hole w as u n ab le to agree a com m on statem ent. A key d raw b ack to the p ractice for N G O interventions ad o p ted by the A G B M w as that, b e ca u se only one statem en t w as allow ed per constituency per session (eventually tw o for B I N G O s ), that statem ent w as likely to b e o f a gen eral nature in o rd e r to cover all the issu es on the table. T h e S B S T A and A G 13 C h airs d urin g the pre-K y oto p erio d took a different ap p ro ach , allow ing N G O statem en ts on specific agenda item s on b e h a lf o f con stituencies. T h ese statem en ts w ere taken after those by parties, b u t n evertheless as p art o f the m ain d eb ate. T h is p erm itted m ore targeted in te rv e n tio n s, in c lu d in g s p e c ific re c o m m e n d a tio n s an d re sp o n se s to developm en ts in the n egotiation p ro ce ss. N G O s , how ever, seldom took up the o p p o rtu n ity affo rd ed to them , with only a few N G O statem en ts reco rd ed in the S B S T A , A G 1 3 o r in deed the S B I, du rin g the pre-K y oto p e rio d . T h e A G B M , therefore, with its m ore form al single speak in g slot, in fact gen erated

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m ore input than the m ore open ap pro ach es o f the SB S T A and A G 13. The approach o f allowing interventions on specific agenda item s by N G O constituencies has continued in both the SB S T A and SB I in the post-K yoto period. The start o f a new exploratory stage on the novel issues raised by the K yoto Protocol, along with the m ore open attitude o f the SB S T A and SB I C hairs, led to a sudden upsurge in dem and by N G O s to speak in the early post-K yoto negotiations. T h is was especially so in the SB ST A , which is responsible for issues traditionally o f particular concern to E N G O s , such as L U L U C F , bun ker fuels and the relationship with the ozone layer. Between two and four N G O statem ents w ere m ade at each session betw een SB ST A 8 (early 1998) and 11 (late 1999). As in the A G B M p rocess, the overwhelm ing m ajority o f statem ents in the subsidiary b od ies were m ade by E N G O s , reflecting their m ore united positions and the greater value that they attach to participation in official arenas. However, as negotiations m oved on from the exploratory stage to engage in m ore detailed bargaining as the C O P 6 deadline ap pro ach ed , the relevance of plenary debates relative to m ore inform al arenas declined, and therefore the value placed on plenary statem ents similarly decreased. T h is decline has continued post-M arrakesh as the focus o f the p rocess has shifted tow ards im plem entation. Only one N G O statem ent w as m ade in the SB S T A between SB S T A 12 (mid 2000) and SB S T A 19 (late 2003), and none at all in the SBI. N G O s did, however, m ake targeted interventions on specific agenda item s at C O P 9 in 2003, the first time that they had don e so in a C O P plenary. The E N G O s , B IN G O s and IP O s all intervened in the debate on the C D M Execu tive B oard report, while the E N G O s and L G M A s spok e on the topic of the review o f Annex I party com m itm ents. T h e fact that N G O s did ask to speak in the highly form al C O P plenary on these two key item s illustrates that, where the plenary d eb ate is seen to be o f relevance, N G O s will seek to intervene. At the sam e time, in the post-K yoto period, m ore and m ore effective channels have been open ed up or enhanced for N G O participation, such as the opportun ity to participate in contact groups, m ore structured and regular m eetings with the presidin g officers, attendance at w orkshops and other com plem entary forum s, and subm ission o f written inputs for electronic circulation on the secretariat w ebsite (see below). T h ese channels are generally seen as m ore efficient and effective in putting forw ard N G O view points than the traditional channel o f plenary statem ents. O n e o f the main ob stacles to greater N G O input in plenary debates is the requirem ent that N G O s speak on behalf o f a b road er international constituency (but not necessarily the five recognized on e s). T h is m ean s that N G O d e le g a te s o b se rv in g a m eetin g can not spontaneously ask for the floor to respond to developm ents in the debate, as any statem ent w ould first need to be agreed within the constituency as a whole. This can involve a lot o f w ork for the constituencies. In particular, it helps explain why B IN G O s , wrhose views are m uch m ore diverse than the E N G O s , have m ade so few plenary statem ents. M oreover, the practice w hereby N G O statem ents are taken at the close o f the debate m eans that N G O delegates cannot contribute at w hatever point they feel is m ost ap pro priate, perhaps m issing the chance to m ake the m ost im pact.

Participation by N on-G overnm ental O rganizations

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N G O s are occasionally perm itted to speak during contact group m eetings, at the discretion o f the Chair. T h e sam e restrictions, however, apply as during plenary m eetings, and N G O s do not participate in the actual bargaining p rocess (see F C C C /S B I/2 0 0 4 /5 , paragraph 25).

Participation in w o r k s h o p s and o th e r c o m p le m e n t a r y f o r u m s A m ore effective m eans o f eliciting contributions from N G O s than plenary statem ents has been their participation in com plem entary forum s, including the inform al roun dtables convened during the K yoto Protocol negotiations, and the post-K yoto w orkshops (on com plem entary forum s, see C h apter 10). D urin g the A G B M roundtables, which w ere open to all participants, N G O representatives were allow ed to speak m ore than once, and outside the constituency structure, providing an im portant opportun ity for them to com m unicate ideas to delegates in a forum that w as precisely aim ed at such an open exchange (see also C h apter 10). T h e post-K yoto w orkshops have similarly seen strong N G O participation, although this has varied dependin g on the nature o f the w orkshop and the level o f interest by N G O s. D isquiet am ong N G O s in the early post-K yoto period over whether, how, and in what n um bers they were invited to w orkshops was partly what prom pted the w ider discussion o f N G O participation by the SB I in the post-M arrakesh period. Invitations to N G O s are now issu ed by the secretariat through constituency focal points, who are canvassed in advance to assess the level o f interest in participating in the w orkshop (Yamin and D ep ledge, 2004). T h e secretariat reports that alm ost all o f the 14 w orkshops held in 2003 h ad rep resentation from N G O s , although not from all constituencies (see F C C C /S B I/2 0 0 4 /5 , section F). O n ce again, the E N G O s were relatively well represented, along with the R IN G O s. Im portantly, the n um ber o f invitations generally exceeds the n um ber o f eventual participants, suggesting that form al channels for securing participation by N G O s are adequate. The main constraint on attendance at w orkshops by N G O s is rather lack o f time and resources. This is b orn e out by a B IN G O interviewee, who confirm ed that the real con straint facing his organ ization w as finding colleagues prepared to spare the tim e to attend w orkshops, and by an E N G O interviewee, who blam ed low levels o f attendance on lack o f financing. A ctual participation by N G O s at w orkshops is at the discretion o f the Chair, but typically N G O s are perm itted to intervene m ore frequently - not just once and not just after parties - and as individual organizations, rather than constituencies. This m akes for a much freer and m ore m eaningful process o f inputting into the discussion s. N G O representatives regularly also act as resource persons at w orkshops, m aking presentations or otherwise providing technical inform ation. O verall, although N G O representation at w orkshops is still low in num bers relative to parties, these com plem entary forum s do tend to provide a useful channel for N G O s into the process, albeit in term s o f p rovidin g inform ation and technical analysis, rather than lobbyin g for particular positions.

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C o n s u lt a t io n s w ith the o rg a n iz e rs An im portan t m eans for N G O s to convey their views is through private m eetings with the p residin g o fficers and secretariat, m irrorin g the bilateral con sultation s that are com m on betw een parties and these organ izers o f the negotiation p ro ce ss. Sin ce 1991, the E xecu tive Secretary has m et privately with each N G O constituency at each negotiatin g session . F o rm er E xecu tive Secretary M ichael Z am m it C u tajar rep orted that such m eetings usually cover a w ide spectrum o f issu es, from the substan tive views o f N G O s on issu es under d iscu ssion , to p ro ced u res fo r their participation and logistical facilities offered to them . Interview s indicated that N G O s ap p reciate these m eetin gs, enabling them to com m un icate their view s and feel m ore involved with the p ro cess. O n e B I N G O interview ee stressed how valuab le he had foun d m eetings with the new E xecu tive Secretary Jo k e W aller H unter, allow ing his constituency to gau ge b etter her character and the nature o f her leadersh ip, en abling it to b etter direct its w ork in the clim ate change regim e. C O P Presidents and subsidiary body Chairs similarly meet privately with each N G O constituency. Although Chair E strada did not consult with N G O s on a regular basis during the Kyoto Protocol negotiations, he did so on specific occasions, for exam ple, to introduce his C hair’s text or to hear procedural grievances (e.g. exclusion from the non-groups). G eneral m eetings between the subsidiary body Chairs and N G O constituencies becam e established practice in the post-Kyoto period, prom pted partly by the SB ST A C hair’s strong enthusiasm for engaging N G O s. Again, these meetings typically cover a range o f issues. E N G O s usually focus more strongly on conveying their substantive positions than do the B IN G O s, who generally concentrate on procedural matters, reflecting the greater diversity o f views within their constituency. Presiding officers have som etim es used private meetings with N G O s as a means o f com pensating for their exclusion from negotiating arenas. D uring the Kyoto Protocol negotiations, for exam ple, Chair E strada organized daily ‘briefings’ exclusive to N G O s to provide them with information and the opportunity to ask questions on the closed non-groups. The extent to which m eetings between the presiding officers and N G O s actually feed into a substantive im pact on the negotiation process will largely depend on the goodw ill o f the presiding officer. The frequent interaction between N G O s and the organizers o f the negotiation process, however, has contributed to the gradual trend in strengthening their engagem ent in the regime.

S u b m i s s i o n of w ritten inp u ts The C O P and subsidiary b odies regularly invite parlies to m ake written subm ission s and p rop osals on issues under negotiation, which are then com piled, printed and circulated as official U N F C C C ‘M IS C ’ docum ents (see C h apter 11). Traditionally, however, N G O s have not been invited to m ake subm issions in this way, and any unsolicited N G O subm issions have not been included in the docum entation o f the regim e (Yamin and D cp ledge, 2004). T h is reflects the view that N G O s are not involved in the actual negotiations,

Participation by Non-Governm ental O rganizations

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along with logistical conccrns at the potential costs of reproducing and circulating N G O subm issions. The growing sophistication of internet technology, however, means that documents can now be placed on the internet at low cost, and do not have to be reproduced in hard copy to be made widely available. This has removed a key barrier to the acceptance by the climate change regime of written submissions by N G O s. The first use of the internet for this purpose occurred for inputs on ways and means of limiting emissions of hydrofluorocarbons and perfluorocarbons. On this issue, C O P 4 explicitly called for submissions from IG O s and N G O s (decision 13/CP.4), in addition to parties, in the knowledge that much technical expertise on this issue is located within the business and industry community. Subm issions from IG O s and N G O s were simply placed on the secretariat website, along with submissions from parties, which were also reproduced in M ISC documents. C O P 5 invited ‘each Party to give consideration’ to this information, and the IPCC to take it into account in the preparation of the TAR (decision 17/CP.5). In this case, therefore, submissions from N G O s and IG O s were given almost equal prominence to those from parties. Building on the potential of internet technology, the secretariat has created a new form of semi-official U N F C C C docum ent, the ‘web-only’ docum ent, that is m ade available only via the secretariat website and not in hard copy (Yamin and D epledge, 2004). The web-only docum ent has becom e a very useful vehicle to enable the circulation of written inputs subm itted by N G O s (see also Chapter 11). This developm ent has, in turn, enabled the subsidiary bodies to request subm issions from N G O s and IG O s as well as parties, without fear o f the procedural/logistical implications. SB I 16, for exam ple, invited parties, N G O s and IG O s to provide information on their experience regarding the effectiveness o f the G lobal Environment Facility (G E F ) as the financial mechanism o f the Convention. The subm ission presented in response by the Climate Action Netw ork was duly issued in a web-only docum ent (F C C C /W E B /2 0 0 2 /6 ), and referenced as a docum ent for consideration by the SBI in its subsequent discussion of the topic. The same process was followed for the high-profile issue o f the inclusion o f L U L U C F projects under the C D M , where parties and other organizations were invited to submit their views as part of the w orkplan on this issue, resulting in sub m ission s from three E N G O s and one R IN G O (F C C C /W E B /2002/12). Interestingly, the subm issions were accepted from individual N G O s, rather than constituencies as a whole. In two other cases, the SBSTA accepted unsolicited subm issions from N G O s - in both cases E N G O s - and issued them as web-only docum ents (F C C C /W E B /2 0 0 2 /1 3 and F C C C /W E B /2 0 0 2 /1 4 ). In all these cases, N G O subm issions were clearly separated from those o f parties, m aking clear the higher status o f the latter. The practice of circulating N G O subm issions in web-only docum ents has now been formally endorsed by the SBI (see I SBI 20 report, paragraph 104), two years after the secretariat launched the initiative. The official publication of N G O views in this way is an important procedural developm ent. However, there has not been much uptake of the opportunity afforded to N G O s to make subm issions in this way. Alm ost all the subm issions have been from E N G O s, with none at all from B IN G O s; this

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suggests that B IN G O s place less value on this m eans o f influencing the intergovernm ental process, preferring to focus on lobbying individual national governm ents. Even am ong E N G O s , there has been no attem pt to input on all issues w here subm ission s have been invited from parties, and indeed no N G O subm ission s were received in 2003. T h is again suggests that N G O s as a whole prefer to devote resources to inform al m eans o f influencing the process, rather than engaging in form al channels.

Side e ve n ts a nd exhibits In addition to the form al vehicles for participation, a tradition has em erged in the clim ate change regim e o f holding side events on the m argins o f the official m eetings (F C C C , 2000). T h ese side events, organized mostly but not exclusively by N G O s and IG O s, consist o f a diversity o f activities, including sem inars, w orkshops, presentations, panel discussions and debates. M any N G O delegates attend negotiating sessions prim arily to take part in the jam boree o f side events. Th e secretariat allocates a fixed num ber o f time slots for side events in advance o f the session, and the events are then publicized in the official daily program m e o f m eetings (Yamin and D ep ledge, 2004). The n um ber o f side events organized by parties, in particular, has risen over time, as they have increasingly taken advantage o f the opportunity to present aspects o f their clim ate change actions and policies in an inform al, n on ­ political way. Even the subsidiary b odies have recently chosen to m ake use of the side event environm ent as part o f the form al consideration o f an agenda item. Such cases are discussed m ore fully in C h apter 10. The grow ing popularity o f side events reflects several trends at w ork in the climate change regime. Firstly, it reflects the great, sustained and rising interest in the climate change regime on the part o f civil society along with the diversity of topics and sectors involved in tackling climate change, which together generate a plethora o f organizations and individuals wishing to publicize their work, or to make their ideas, proposals and perspectives heard. Table 14.2 below illustrates the type o f activities taking place as side events, and their organizers. A secon d, very im portant sp u r to the grow th o f side events is the unrelenting politicization o f the form al climate change negotiations, which forecloses many avenues o f debate on the grou n ds o f political sensitivity. So many sub jects have becom e tab oo that side events have em erged as an alternative safe outlet for open discussion and debate on these topics (see also C h apter 10). The best exam ple is that o f future com m itm ents for all parties; in the form al negotiations, the item that w ould provide a hom e for such a discussion has not even m ade it onto the form al agenda, and instead has been held in acrim onious abeyance for the past five years. It is no exaggeration to say that the mere mention o f future com m itm ents or negotiations on these is tab oo in the form al regim e. However, recent negotiating session s have seen a wealth o f side events on this very topic, usually with presen tations and in-depth debate involving both developed and developing country N G O delegates. As one interviewee argued ‘side events, particularly around the shaping o f the

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d eb ate post-K y o to, are critical, as the system itse lf isn ’t c ap ab le o f sh apin g that kin d o f d eb ate, and th ere’s a very rich d e b ate goin g o n ’. O th er to p ic s dealt with in this w ay in clu de presen tatio n s an d discu ssio n o f specific clim ate change p o lic ie s an d em ittin g se c to rs (e.g. tra n sp o rt, electricity ge n e ra tio n ). A partn ersh ip o f B I N G O s , E N G O s and R I N G O s , fo r e xam p le , organ ized a high-level event on op tion s fo r tackling tran sp o rt em ission s at C O P 9. Such a d eb ate, d e sp ite its critical relevance to tackling clim ate change, could never take p lace w ithin the con fin es o f the n egotiation p ro c e ss, with the d e b ate on policies and m easu res in deed stalled in the S B S T A . A s E N B (2003b ) rep orted, side events ‘fo rg ed ah ead into un ch artered w aters, e x p lo rin g those issu es that have pro v ed sim ply too hot to b e h an dled by the C O P ’ . Several com m en tato rs p oin ted to C O P 9 as a turning poin t in this respect, w here the con trast betw een the slu ggish n ess o f the form al n egotiation s and the energy o f the side events w as throw n into focu s. Several interview ees at C O P

T a b le 14.2 E xtract fro m the daily program m e o f m eetings fo r W ednesday 10 D ecem ber 2003 at C O P 9 E v e n t title

O rg a n iz e r

European greenhouse gas budgets of the biosphere

European community

Wind power and climate change Adaptation to climate change risks in Small Island States

Greenpeace International Delegation of Samoa with CARICO M

Perspectives for the further German Advisory Council on development of the Kyoto Protocol Global Change Emissions trading: the financial sector UNEP Linking climate responses and development planning

OECD

GHG reporting guidance: comparison Natural Resources Defense Council of two approaches Choices and challenges: How Arkhangelsk pulp and paper mill (Russia) is reducing emissions while achieving business growth

Environment Defense

Climate change in the Arctic: human rights of the Inuit interconnected with the world

Center for International Environmental Law

Rethinking tropical deforestation and the Kyoto Protocol

Delegation of Italy

S ou rce: FCCC/CP/2003/QD/9

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9 echoed the view o f an E N G O responden t who said: ‘here, and also in Delhi [C O P 8], the side events were better than the m eetin gs’. D essai et al similarly quoted som e observers as saying that ‘the m ost valuable outcom es o f C O P 9 occurred during the side-events’ (D essai et al, 2004). This has not always been the case. A s E N B (2003b) com m ented: in previous years, som e d e le g a te s. . . con sidered the side events to be an opportunity for free food and a quick nap during the lunch period. But at C O P -9, the side events also provided con siderable food for th o u g h t.. .w hile the official negotiations craw led along at a snail’s pace. An interesting aspect o f side events is that they are overwhelmingly focused on positive responses to climate change, often far ahead of the form al negotiations am ong parties in terms of the strength and innovativeness o f action proposed or indeed being undertaken. E N B (2003a) reports that ‘while diplom ats were often left agreeing on the lowest com m on denom inator ... alm ost all [the over 100 side events] were focused on the highest com m on denom inator’. The m assive majority o f side events were extremely optim istic about the possibility o f implementing m eaningful action to tackle climate change in an effective manner. This is particularly significant given that m ost side events were not organized by E N G O s, but rather by research based N G O s. There is no doubt that the m ost interesting, constructive and potentially integrative solutions to the dilem m as o f the climate change negotiations are proposed, developed and discussed in the m ore problem ­ solving atm osphere o f the side events rather than the official arenas. Side events, however, do indeed remain ‘on the side’ rather than central to the negotiation process.12 D espite the larger than usual num ber o f party negotiators attending side events at C O P 9, m ost participants at side events are traditionally other N G O s. The side events do indeed provide a very im portant forum for N G O s to network, as well as to com m unicate and debate their views and ideas on how the negotiations should proceed. A s one N G O interviewee commented: special events are extrem ely useful, to present our own research input or to get latest news o f research being done by others . . . due to the proliferation o f academ ic N G O s in the m eetings, you get a lot o f papers giving the latest scientific input, grey literature, which w ould not be published years from now. Although N G O side events rarely im pact directly and immediately on the formal negotiations, they do have a very im portant contribution to m ake in terms of stimulating and encouraging the b roader long-term flow o f ideas on tackling climate change, elements o f which can eventually filter through to the actors on the negotiation stage. Another im portant contribution o f side events - not only from N G O s, but also from IG O s and parties - is to show case the im plementation of projects and program m es related to climate change on the ground, which often contrast with the greater hesitation o f parties in the form al negotiations to commit to strong climate change action for fear o f econom ic harm.

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O ne party interview ee suggested that side events arc becom ing increasingly im portant in triggering debate (if not shaping positions) even am ong parties: ‘ [governm ent] delegates are attending. T h e re ’s quite a lot o f discussion that flows from that. It perm eates th rough .’ Indeed, in many cases, party delegates attending side events ap peared to feel relieved at being able to broach topics in a wholly inform al, exploratory manner, w ithout fear o f censure for political incorrectness. N evertheless, links betw een side events and the form al negotiations remain weak, so that it is difficult for debates at side events to have any short-term im pact on the negotiation process. N o form al record is kept o f discussions, and there are no channels for reporting results or insights to the subsidiary bodies. H ow ever, reflecting the increasing im portance attached to side events, unofficial channels have been open ed up to help propagate the w ork o f side events. Since S B S T A /S B I 12 in 2000, with funding from the secretariat, the Earth N egotiations Bulletin has reported on selected side events, providing a sum m ary o f discussion s, p h otograph s, contact details, and links to relevant w ebsites. The secretariat also provides an internet w ebcast on selected side events. At C O P 9, the secretariat introduced an additional facility for the organizers o f side events to place their presentations on the secretariat w ebsite, thereby m aking it available to a global audience. D em and to hold side events now outstrips the availability o f time slots in the official schedule. At recent C O P sessions, many N G O s have therefore decided to organize their own m eetings, in their own venues, outside the official schedule, thereby also abandon ing the strictures o f that schedule (e.g. time slot o f only two hours). E N G O s , for exam ple, held an ‘adaptation d ay ’ at both C O P 8 and C O P 9, while B IN G O s held several events in their own m eeting room s at C O P 9. In addition to side events focused mostly on discussion and debate, N G O s - mostly E N G O s - occasionally stage m ore visible, attention-attracting activities. T h ese include, for exam ple, the ‘fossil of the day’ aw ard, a piece o f coal being given to the country deem ed to have taken the m ost environm entally regressive stance that day. B ook launches and receptions also take place as unscheduled events, while other, m ore innovative exam ples at C O P 9 included a fashion show and a m im e artist. In tandem with side events, the secretariat provid es sp ace in the conference centre for N G O s and IG O s (and also parties) to set up and run exhibit stalls. These might consist o f distribution points for w orking papers, pam ph lets or other prom otional literature, exhibitions o f posters or placards illustrating projects or program m es, or even include video presentations or the occasional talk. L ike side events, these exhibits provide a further opportunity for N G O s to show case their w ork and their views.

Unoffi ci al vehicles Som e o f the m ost im portant vehicles available to N G O s to lobby delegates and influence the climate change negotiations are largely outside the control o f the organization o f the negotiation p rocess although, crucially, they are

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facilitated by its existence. A sm all num ber o f parties (e.g. C an ada) include N G O representatives on their delegations, providing a direct channel for N G O s to input into the position o f the party concerned and thereby contribute to the negotiation process. O th ers (e.g. the E U and U S) convene regular, often daily, m eetings with their dom estic constituencies. A side from these m ore form al links, N G O s m ake extensive use o f the densely pop ulated theatre provided by the two-week negotiating sessions. The presence o f several thousand individuals w orking on clim ate change in a single conference centre provides critical opportun ities for intensive interaction, lobbying, netw orking and the exchange o f ideas and inform ation. Several interview ees pointed to the im portance o f such inform al lobbying. An N G O interviewee stated, ‘you get at the peop le you w ant to get to, hopefully on a oneto-one basis, irrespective o f the p r o c e ss . . . The corridors are the m ost im portant places to find p e o p le .. .w here you can bum p into them .’ A governm ent interviewee agreed that ‘definitely the best kinds o f interaction are in the corrid o rs’. N G O s also have the opportunity to organize press briefings, m aking use o f the often high m edia presence at key C O P session s. C A N -International, for exam ple, held a press briefing on m ost m ornings during C O P 9.

S u m m a r y a n d c on c l u d i n g r emarks O verall, the clim ate change regim e is widely viewed as relatively open and transparent to participation by N G O s , providin g expansive access and m ultiple form al and inform al opportun ities to feed into the process. O f course, the right o f N G O s to input into the negotiations is not on a p ar with that of parties; only parties can negotiate and take decisions, so there are many occasion s w here arenas will be closed to N G O s. O n balance, however, the access granted to N G O s has b roaden ed over the lifetime o f the climate change regim e. In the post-M arrakesh era, this b roaden in g has also been accom panied by attem pts to form alize the involvement o f N G O s , codifying established practices. This is certainly one area where the clim ate change regim e has learnt over time and developed m ore progressive m eans o f harnessing the (usually constructive) resources that N G O s can bring to the negotiation process. The secretariat has been at the forefront o f developing and im plem enting inform al rules and practices to m anage N G O involvement. The adm ission process, the con stituency system , the issu in g o f N G O w ritten in puts as w eb-only docum ents, and the drafting o f a code o f conduct, have all been initiatives of the secretariat, that have been subject to only the m ost minimal scrutiny on the part o f the subsidiary b odies. T h is h an ds-off ap pro ach by the parties has allow ed the secretariat to devise and im plem ent pragm atic ways o f dealing with the great interest in the clim ate change regim e on the part o f N G O s. A degree o f form alization, however, may now be necessary, given the large n um bers of active N G O s , and the multiplicity o f different arenas in which they wish to participate.

15

Conclusions: 12 Key Insights

It’s a faulty process, but it’s the only one we have (interview). The objective o f this book was always a sim ple and hum ble one: to im prove understanding o f the organization o f global negotiations, and how organizational factors can im pact on the course o f a negotiation process. T h e preceding chapters discussed in detail organizational factors at play in the climate change negotiations, throwing light onto the usually unseen organizational world that lies behind the visible face o f the negotiation process. It is now time to distil som e more general lessons from the detailed analysis presented in those chapters. This concluding chapter takes on this task, by drawing together 12 key insights from the experience o f the climate change negotiations that could provide useful lessons for other global negotiation processes.

1 The actions of the o r g a n iz e r s are key W hile form al rules o f procedure and establish ed practices provide im portant b uilding blocks for the organization o f a negotiation process, the actions o f the organizers - the presiding officers, bureau and secretariat - are absolutely key to the effective m anagem ent o f the negotiations. T h e fact that the rules and practices o f the clim ate change regim e, and indeed other regim es, tend to be rather standard in the international arena places a prem ium on the ability of the organizers to interpret, im plem ent and im provise upon those rules and practices to ad apt them to the needs o f the particular regim e and negotiation process.

2 U nity a nd co n tin u ity are im p o rta n t T h e clim ate change n egotiation s ap p e ar to have fared b etter un der a single presid in g officer, a single negotiatin g b od y and a single secretariat team for a n egotiatin g roun d (the K yoto P rotocol n egotiation s) than un der m ultiple p residin g officers, n egotiatin g b o d ie s, and secretariat team s (the post-K yo to negotiation s). W here the com plexity o f the n egotiation p ro ce ss requires m u ltip le in stitu tio n al ac to rs, there sh o u ld be stron g an d co n tin u o u s com m un ication betw een them , with overall responsibility vested in a senior political figure through out the n egotiatin g round.

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3 Presiding officers sh o u ld be able to s u p p ly s tro n g processoriented leadership The single factor that can m ake the greatest difference to a negotiation process is the presence o f an effective presiding officer. Although different types o f negotiations and negotiating rounds require different skills, in all cases, objectivity, determ ination, strong decision-m aking capabilities, and longstanding negotiating experience in the particular regim e are key factors in facilitating effective chairing and process-oriented leadership. A real problem in this regard, com m on throughout the international arena, is that the election o f presiding officers is usually determ ined m ore by political considerations than suitability for the post in term s of skills and attributes.

4 C o m p e te n t s u p p o r t from the secretariat is vital Given that the appointm ent of effective presiding officers cannot be guaranteed, it is particularly vital that a regim e enjoys the support o f a com peten t and stab le secretariat. The secretariat should be able to com pensate for any chairing w eaknesses on the part o f the presiding officers, and also generate trust in the process by respecting the ‘veil of legitim acy’. Secretariat staff should p o ssess a balance o f procedural and technical expertise that enables them to form ulate strategic m eans of organ izin g the n egotiation p ro c e ss, w hile also p rovid in g effective substantive, technical and logistical support. A particularly im portant role for the secretariat, as discussed further below, is to serve as the institutional memory o f a regim e, which can in turn im prove its ability to organize the negotiation process effectively.

5 A balance m u st be struck b e t w e e n procedural e qu ity/tran sparen cy and efficiency Balancing procedural equity/transparency on the one hand, and efficiency on the other, is a central aim for the organization o f the negotiation process. Success in this regard depends on the application o f m ost o f the most im portant rules and established practices m ost o f the time, but knowing when the efficiency benefits o f relaxing the rules w ould outweigh the legitim acy b enefits o f applying them. Placing too much em phasis on efficiency (e.g. focusing too much on closed, limited m em bership groups) can erode the legitim acy o f the negotiation process, while excessive concern with p ro c e d u ra l e q u ity /tran sp aren cy can je o p ard ize the reaching of agreem ent, or paradoxically provoke the key players to retreat into highly inequitable, untransparent private deals. The inability to achieve a stable, acceptable balance between these factors is widely acknow ledged as a trigger to the breakdow n o f the C O P 6 negotiations.

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6 Procrastination m u s t be resisted, a nd b a r g a in in g and dealm a k in g p ro m o te d Another central aim o f the negotiation process must be to resolutely counter the inherent tendency o f delegates to backload negotiations, stagnate in the initial exploratory stage, and delay the start o f intensive bargaining. Although organizational tools - such as the use o f texts, negotiating arenas, verbal exhortation, symbolic m arkers and reinforcement o f the deadline - can rarely avoid the m arathon, late night m eetings that characterize finales o f m ajor negotiating rounds, they can ensure that the w orkload for those last minute negotiations is not insurm ountable. Again, the failure to resist procrastination is com m only cited as a factor in the collapse o f C O P 6.

7 Texts m u s t be actively m a n a g e d Texts are extrem ely im portant tools for a global negotiation, helping to disentangle the com plexity arising from the m ultitude o f issues on the negotiating table. W ell-drafted texts can introduce a unified structure to diverse ap proach es, draw out com m on stran ds from disparate proposals, highlight key questions and options, draw attention to interlinkages, and otherwise bring som e kind o f order to the m ass o f differing pro p o sals put forw ard by parties. A w ell-m anaged textual developm ent process, whereby texts becom e increasingly stream lined and focused, is a critical elem ent o f an effective negotiation p rocess, especially in term s o f time m anagem ent and resisting procrastination. O verlong, intricate texts that stagnate over tim e and are difficult to w ork with are usually indicators, as well as triggers, o f a dysfunctional negotiation p rocess that overburdens the negotiation finale. The presidin g officer m ust therefore take firm charge o f the textual developm ent p rocess, ensuring that a new text is produced for each negotiating session that registers and prom otes a m eaningful step forw ards in the negotiation process.

8 Suitable f o r u m s are ne ed ed fo r e xp lo ra tio n, as well as b a r g a in in g and d e a l-m a k in g W hile bargaining and deal-m aking are the core activities o f a negotiator, a negotiation p rocess should also provide forum s where delegates can engage in exploration and open discussion o f issues, w ithout the political constraints and com m itm ents im plied in bargaining. To m axim ize their usefulness, such com plem entary forum s - so-called as they ‘com plem en t’ the negotiating forum s - should offer opportun ities for actors other than the usual negotiators to also share their ideas and perspectives. T h ese actors include N G O s (environm ental, busin ess, research and others), IG O s and scientists, and also m inisters, w hose political pow er and b road er perspective allow them to m ake im portant contributions to the negotiation process. Such com plem entary forum s can also help prom ote a m ore cooperative atm osph ere, allowing delegates to speak their m inds outside the political tab oos and conflicts o f the negotiating arenas. T h e clim ate change regim e has been rather successful in o p en in g up com plem en tary fo ru m s, such as m in isterial ro u n d ta b le s,

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w orkshops, and side events. In com m on with other regim es, however, the energy, creativity and openn ess often displayed in these forum s needs to be better connected to the official negotiation process.

9 Procedural o bstru ctio n m u s t be m in im ized W here obstruction ist delegates are present, the organizers o f the negotiation p rocess should strongly resist attem pts at delaying the negotiations through p rocedural tactics, while respecting legitim ate procedural com plaints. An im portant elem ent o f this is strong and judicious decision-taking by the presidin g officer.

10 Different n e g o tia tin g co n texts h a v e different o rg a n iz a t io n a l ne ed s and o p p o rt u n it ie s D ifferent negotiating rounds take place within different geopolitical and historical contexts. Each negotiating round thus has its own organizational needs and opportunities, while the organization o f previous negotiating rounds can have repercussions on the present. The post-Kyoto negotiations, for exam ple, had a greater need for exploration in com plem entary forum s (given the innovative nature o f their subject m atter), while also facing a m ore conflictual context (e.g. US repudiation o f the Kyoto Protocol) and less tolerance o f procedural breaches (such as m ultiple parallel meetings) from many parties. In turn, lingering unhappiness with the closed ministerial roundtable at C O P 2 and the friends group at C O P 4 had long-lasting ramifications on the acceptable options open to presiding officers post-Kyoto. Because each negotiation will face its own specific challenges, it is not possible to apply a single, com prehensive organizational form ula to all negotiations. This does not mean that no organizational lessons can be drawn from the experiences o f individual negotiations - indeed these conclusions suggest a num ber o f broadly applicable insights - only that a specific organizational strategy that works in one negotiation may need to be adapted so as to be effective in a different context.

11 Inno v ate w ith caution F am iliarity and stability are im portan t co n tribu tors to efficiency, and organizational boundaries should not be pushed too far too fast. While long term learning is very im portant - as we see below - excessive innovation from meeting to meeting is likely to backfire, underm ining the stable expectations o f delegates as to how the negotiations are conducted and fomenting mistrust. Organizational innovations, however brilliant in theory, will flounder if parties are unable to make sense o f them. The risk o f this happening is exacerbated by the heterogeneity of parties, each with their own ways of thinking, along with the presence of obstructionists, only too happy to exploit possible m isunderstandings. The differing approaches to negotiating texts and arenas at C O P 6, for exam ple, arguably went too far into the unknown; when tried again at C O P 6 (part II), their greater familiarity meant that they enjoyed greater success.

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12 A c o n t i n u o u s n e g o t i a t i o n p ro c e ss req u ire s g r a d u a l le a rn in g and adaptation N otw ith stan d in g the d an g ers o f excessive in novation , con tin uou s grad u al learn ing is very im portan t fo r the su stain ed su c c e ss o f a con tin u ou s n egotiation p ro ce ss. L earn in g is not an ab stract con cept that som eh ow p erm eates a regim e, b u t, like the organ ization o f a n egotiation p ro c e ss itself, m u st b e con scio usly un dertaken by con crete actors. T h e prim e acto r in this resp ect is the secretariat, w hich serves as the institutional m em ory o f the regim e. T h e secretariat should b e ab le to m on itor an d asse ss exp erien ces in the organ ization o f n egotiation s, ap ply in g these exp erien ces to new negotiation ro u n ds, an d com m un icatin g the lesso n s learn ed to new sta ff so that they are not forgotten . T h e clim ate change secretariat h as been rath er active in reflecting on the n egotiation p ro c e ss: the E xecu tiv e Secretary, fo r exam p le, p re p are d recom m en d ation s on w ays o f im provin g the negotiation p ro c e ss in the w ak e o f com p lain ts over lack o f tran sparen cy an d late night n egotiation s at C O P 4 (see F C C C /S B I /1 9 9 9 /2 ). P arties them selves, however, tend to be resistan t to chan ge, with m istrust a particularly im portan t factor. D ev elo p in g coun tries are often particularly reluctant to co n sid er alternatives o u tsid e the statu s qu o , for fear o f losin g out on p ro ce d u ra l equity and tran sparen cy safe gu ard s. M oreover, m any organ ization al facto rs (not to m ention political dyn am ics) are en dem ic to the U N system , which is particularly resistan t to change. O v erall, the clim ate ch an ge regim e h as clearly show n itself c ap ab le o f learn ing and resp o n d in g to changin g circu m stan ces, alb eit p o n d ero u sly and within the con fin es o f the w id er U N and political con text. T h e p roliferation o f inter-sessional w o rk sh o p s, for e xam p le , ad d re sse d con cern s over a crow ded agen da, the m inisterial ro u n d tab les re sp o n d ed to d isen ch an tm en t w ith the gen eral d e b ate , the evolution o f p ractice s on N G O s an sw ered d e m an d s for m ore stru ctu red involvem ent o f these actors, an d the greater use o f shuttle d iplom acy em erged from the dy sfu nction s o f frien ds gro u p s. A lm ost every asp ect o f the organ ization o f the clim ate chan ge n egotiation s h as seen evolution since C O P 1. Interestingly, at the tim e o f w riting, the S B I had initiated a form al review o f the organ ization o f the clim ate chan ge process, with a view to en surin g that the C on ven tion b o d ie s could ‘w ork as efficiently and effectively as p o ssib le ’ (see S B I 2 0 rep ort, p aragrap h 94). M o st o f the in novations to date, however, have em erged sp on tan eou sly o r on the initiative o f the secretariat, rath er than through n egotiated d ecision s by the parties. In d e e d , organ ization al review s by the p arties have, so far, ten ded to lead to rather con servative ou tp u ts or the form alization o f establish ed p ractices and secretariat initiatives. T h is b rin gs us b ac k to the first in sight o f this ch ap ter the im p ortan t role played by the organ izers o f the n egotiation p ro ce ss.

T h e m ain m essage o f this b o o k is that n egotiation s can b e organ ized m ore or less w ell, an d this can in fluen ce a n egotiation for g o o d or ill. T h e organ ization o f the n egotiation p ro c e ss m ay b e only one in gredien t am on g the m any facto rs

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- pow er, in terests, scien ce, geop olitics, p u b lic o pin ion , in dividual personalities, history, seren dipity - that togeth er m ake up a n egotiation and lead it to su ccess, or not. It is, how ever, on e o f the few facto rs that is directly open to collective m an ip ulation . A lth ough the b est organ ized p ro ce ss in the w orld cannot resuscitate a d o o m ed n egotiation if political will is lackin g, the way in w hich a n egotiation p ro ce ss is o rgan ized can m ake the d ifferen ce betw een su c c e ss and failure in a co m p lex n egotiation w here the overw h elm ing m ajority o f parties genuinely d o w ant to reach a substan tively m eanin gful agreem en t. T h is study h as taken a first step in pro m o tin g a b etter un d erstan d in g o f the organ ization o f glo bal n egotiation s, in o rd er to en sure that o p p o rtu n ities to advance p ro gressiv e g lo b al go vern an ce are reaped to the m axim um exten t an d are not thw arted on m ere organ ization al grou n ds.

N o tes

Chapter 2 1 On different negotiating techniques, see Ikle (1964), Sjostedt et al (1994) and Zartman (1994). 2 On the importance of culture in negotiation, see Faure (1999) and Zartman (1999). 3 ‘The more items at stake can be divided into goods valued more by one party (or parties) than they cost to the other(s) and goods valued more by the other party (or parties) than they cost to the first, the greater the chances of a successful outcom e’; cited in Sjostedt et al, 1994, p8). 4 In the interests of simplicity, the remainder of this chapter will refer only to a ‘Conference of the Parties’ (COP).

Chapter 3 1 Melinda Kimble, senior US negotiator on the climate change negotiations, conversation with the author during the first Extraordinary Conference of the Parties to the CBD , Cartagena, 1999. 2 On the science of climate change and its impacts, see IPCC (2001a and b). 3 A fuller discussion of conventional economic analyses in the context of climate change can be found in IPCC (1996:ch.8, 9), IPC C (2001c:ch.3, 8, 9, Technical summary), IPC C (2001d, Question 7), and G rubb et al (1999:Appendix II). 4 This pervasiveness can be compared to the problem of ozone depletion, where the production of chlorofluorocarbons (CFCs) was dominated by only a few companies in just over 20 countries when the Montreal Protocol was adopted, with one company alone accounting for about a quarter of world production (Benedick, 1991; Oberthiir, 1999). 5 For example, 120 years for N 20 , thousands of years for some long lived gases, such as sulphur hexafluoride (both of which are covered by the Kyoto Protocol). 6 For a fuller discussion of intergenerational equity in the context of global environment problems, see Weiss (1989). 7 For a history of the climate change issue, and how it rose up the international political agenda, see Bodansky (1993) and Paterson (1996). 8 For a detailed explanation and analysis of the U N FC C C , see Yamin and Depledge (2004). 9 The C O P has also established three specialized bodies. The Consultative G roup of Experts on National Communications from Non-Annex I parties; the Expert G roup on Technology Transfer; and the Least Developed Countries Expert G roup. These bodies are not discussed in this book, given that they are involved in implementation, analytical and capacity-building activities, rather than actual political negotiation. The three specialized bodies of the Kyoto Protocol - the Article 6 Supervisory Committee, the CD M Executive Board, and the Compliance Committee - are similarly not discussed in this book for the same reasons. 10 For a detailed explanation and analysis of the Kyoto Protocol, see Yamin and Depledge (2004). 11 Although the precise mandates for the work on JI, the CD M and emissions trading

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varied considerably, they were all eventually interpreted as basically requiring wideranging work on the operationalization o f the mechanisms. 12 This refers to a proposal by Iceland to consider the situation o f small countries whose emissions baselines are so low, that a single ‘project’, e.g. the building o f an aluminium smelter, could cause them to overshoot their target, even if based on the m ost environmentally sound technology. See Yamin and D epledge (2004). 13 See, for exam ple, the M ontreal Protocol on Substances that D eplete the O zone Layer (M ontreal Protocol, 1987) and the Convention on Biological Diversity (C B D , 1992).

Chapter 4 1 A ccording to rule 27.1, the rules of procedure ‘apply mutatis m utandis to the proceedings of the subsidiary b odies’. 2 F o r exam ple, the flexibility m echanism s, L U L U C F , and Articles 5, 7 and 8 (m ethodological issues, reporting and review). 3 But not for the more private process o f informal consultations, where a single Chair is usually appointed, see Chapter 9. 4 This issue in the climate change regime refers to the adverse effects of both climate change, and actions taken to mitigate climate change.

Chapter 5 1 The joint working group on com pliance (1999-2000) did not have a bureau. 2 D uring the negotiations on the Convention under the Intergovernmental Negotiating Com m ittee (IN C ), the Bureau consisted o f five m em bers (President, R apporteur and three Vice-Presidents), one for each official U N regional group. 3 This rule was waived at C O P 6, when a Bureau m em ber was elected for a third term, to permit him to serve for a (permitted) second term as S B I Chair (C O P 6 report part I, paragraph 43). The rotation requirement, however, m eans that C O P Presidents have never been re-elected (Yamin and D eplcdge, 2004). 4 ‘Credentials’ are written attestations o f m em bers o f a delegation, and are issued by the H ead o f State, H ead of Governm ent, or Minister o f Foreign Affairs.

Chapter 6 1 T h ese program m atic activities include coordinating the review o f national communications, support to L D C s, and public outreach initiatives. 2 This includes staff financed by the Trust Funds and the Bonn Fund, as well as the core budget. See F C C C /S B I/2 0 0 3 /1 2 . Although not all posts were filled, m ost o f the vacant posts were temporarily occupied by short term staff (see also Yamin and D epledge, 2004). 3 The situation o f the ozone secretariat differs, of course, from that o f the climate change secretariat, in that the form er is located within U N EP, which has a public information mandate and structure to deliver. N onetheless, the contrast is a striking and pertinent one. 4 Clim ate change posters were produced for the 1992 Earth Summit, but since then, only occasionally, by C O P host governments rather than the secretariat. A calendar was produced by the secretariat in 2002.

N o te s

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Chapter 7 1 F o r readability, unless otherwise specified, references to ‘rules’ in the remainder o f this chapter will also encom pass informal practices. 2 Som e scholars have, however, raised questions as to the equitable nature o f such sovereign equality, noting, for exam ple, that it takes no account o f population size, contribution to the problem , or nature o f commitments under the regime (e.g. see Franck, 1995). 3 This adoption was not straightforward, however, partly due to excessive zeal on the part o f the secretariat to correct problem s in the text (see Chapter 11) and partly due to substantive and procedural concerns raised by the Russian Federation (see also Chapter 9). 4 Iran, the G-77 Chair for C O P 6 (part II), was also an O P E C member, yet presided over a more compliant G roup. At that time, however, the desire of most developing countries, Iran especially, to uphold multilateralism in the face o f U S repudiation o f the Kyoto Protocol undoubtedly overrode tendencies towards procedural opportunism . Iran is also known for its more conciliatory stance am ong O P E C members.

Chapter 8 1 ‘. . . s o long as legitimate U S interests [are] protected’. See F C C C /C P /2 0 0 1 /M IS C .4 . However, the U S has, so far, taken a relatively lax view in this respect. It did not, for exam ple prevent agreement on the Com pliance Committee, despite having opposed its com position and decision-making procedures. These procedures are based on a majority o f non-Annex 1 parties, and with a majority o f non-Annex I party m em bers (as well as Annex I party mem bers) required to pass a vote, which the U S saw as a highly unwelcome precedent for future international institutions. 2 There are many exam ples of other multilateral negotiations where the definition of consensus has been contested. Indeed, as Werksman (1999,p7) n o tes,‘institutions do ... either through rules or practice, develop their own highly contextual definitions of consensus’. 3 A similar dem and from Iceland was considered more sympathetically, given Iceland’s low emissions baseline, small emissions per capita and clean energy economy. 4 O n the ‘Iceland issue’, see Chapter 3. 5 In essence, the proposal would have granted Canada credit on account o f its sale of cleaner energy to the U S. The proposal, however, evolved considerably throughout its consideration in the SBSTA . F or more detail, see the subm ission by Canada in F C C C /SB S T A /2 0 0 3 /M ISC .7 . 6 The resolution o f other issues, in the meantime, also helped to alleviate U S concerns. 7 O ther delegations raised concerns about certain points, but stopped short o f lodging a formal objection. 8 The G eneva Ministerial Declaration is contained in the annex to part II o f the C O P 2 report, the texts of statements m ade in connection with the Declaration are contained in Annex IV to part I o f the report.

Chapter 9 1 In English, unless the meeting is being held in a Francophone country. 2 By watering down C an ada’s proposal to simply taking note o f that country’s intention to convene an informal meeting on the topic. For a brief discussion o f the issue, see C hapter 8.

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3 See the example relating to L D C s above. 4 These exam ples are discussed further in Chapter 8 and, in the case of general commitments, also in Chapter 4. 5 At C O P 6 (part II) the ‘last days’ were in fact at the close of the first week, as the intention was to reach a political agreement in the first week, and engage in (less intense and controversial) technical negotiations in the second week. 6 At C O P 6 (part II) the final agreement went straight to plenary, partly to ensure there was less time for it to unravel, and partly because the friends group had proved relatively ineffective in its work. 7 Cluster 1 on capacity-building, technology transfer, adverse effects and financial mechanisms, and guidance to the G E F ; and cluster 4 on compliance, accounting reporting and review, and policies and measures. 8 It is important to be aware that the term ‘informal consultations’ is a very versatile one and, in addition to describing the specific informal arena discussed here, is also commonly used as a euphemism to refer to any small, private meeting, from friends groups to bilateral talks between the C O P President (or any other presiding officer) and individual parties or negotiating coalitions (Yamin and Depledge, 2004). Both these latter examples are discussed in more detail below. 9 The former issue was finally resolved at C O P 7, the latter emerged at C O P 7 and is ongoing at the time o f writing. 10 See Chapter 4 on the use of the term ‘facilitator’. 11 For example, at SB STA /SB I 10 in 1999 and at C O P 9 in 2003, respectively, with differing distributions between informal consultations and contact groups. 12 The three flexibility mechanisms were also clustered together for more hard headed political reasons. Parties and coalitions placed differing importance on the individual mechanisms, and a good compromise found in the BAPA was thus to address them together, to reassure all parties that none would be ‘left behind’. 13 On the effects of ‘negotiation by exhaustion’, see Chapter 12. 14 See Sebenius (1984), Sanders (1989) and Benedick (1991) on negotiations on the Law o f the Sea, the Third Review Conference of the Non-Proliferation Treaty, and the Montreal Protocol, respectively. 15 See photo on http://www.iisd.ca/climate/cop6bis/20july.html. 16 Interestingly, the initial intent behind this request was to appoint a ‘facilitator’ who would help the Polish C O P President in preparations for C O P 6, but this was rejected especially by developing countries, who feared it could lead to a closed negotiation process, from which they might be excluded. See statement by Saudi Arabia calling for negotiations to stay within the purview of the subsidiary bodies and guarding against ‘any external interference in the existing structures’. C O P 5 report, part I, paragraph 48. 17 The issue of differentiation referred to whether Annex I parties should all have to meet the same emission target, or whether different individual targets should be allocated, and if so, how. 18 Calculation by the author based on list of speakers held with the secretariat.

C h a p t e r 10 1 In addition to the A G BM roundtables held under the Kyoto Protocol negotiations, the other subsidiary bodies also convened occasional complementary forums as part of their own agenda of work. 2 For the full title, date and venue of each workshop referenced in this chapter, see the list of workshops on the secretariat website: http://unfccc.int/sessions/workshops.html. 3 Reports may be found at www.iisd.ca/linkages.

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C h a p t e r 11 1 The large volume of submissions also included inevitably lengthy national data tables on the sector. While not proposals as such, meaningful and informed participation in the negotiation process still required negotiators to study these tables. 2 Whether the use of the flexibility mechanisms should be supplemental to domestic action, and if so, how much, and how this should be enforced. 3 The three flexibility mechanisms - joint implementation, the CDM and emissions trading - plus the issues o f accounting and registries.

C h a p t e r 12 1 Consideration o f the specific issue of sinks began late in the Kyoto Protocol negotiation process because neither the secretariat nor Chair Estrada had appreciated the importance of this issue. It was only when drafting the C h airs text (see Chapter 11), and when a landmark proposal was received from New Zealand, that the import, and complexity, of the topic became apparent. 2 This refers to the determination on the part of the EU that it should be allowed to fulfil its emission targets jointly, eventually codified in Kyoto Protocol Article 4. 3 Borrowing refers to a U S proposal whereby a party could use up some of its allowed emissions for the second commitment period already in the first period. 4 The role of the C O P Presidents was much less important in the Kyoto Protocol negotiations, where Chair Estrada acted as the single leader (see Chapter 4). 5 The negotiations on the U N FC C C (Mintzer and Leonard, 1994a), CBD (McConnell, 1996), the Stockholm Convention on Persistent Organic Pollutants (E N B, 2000c) and both the first and second negotiating rounds of the Cartagena Biosafety Protocol (Bail et al, 2002 and E N B , 2000a) all experienced exhausting, late night negotiation finales.

C h a p t e r 13 1 The term ‘minister’ is used to denote an individual who is part of the government in power in a state and who has responsibility for taking political decisions relating to the negotiations. A minister so defined may (e.g. U K) or may not (e.g. US) be directly elected, depending on the political system. 2 The exception was C O P 6 (part II), where the high-level segment was held in the middle of the session. 3 Speeches by some hosting heads of state have been summarized, the speech made on behalf of the King of Morocco at C O P 7, for example, and the speech by the Chancellor of Germany at C O P 1. 4 Except C O P 6 (part II), which was convened only to conclude the negotiations that broke down at C O P 6. 5 The Geneva Ministerial Declaration, however, did make an important contribution to the Kyoto Protocol negotiations. For more on the Declaration, see Chapters 8 and 12. 6 For a discussion of how the consensual and benign political atmosphere of the C O P 5 roundtable may actually have hampered the post-Kyoto negotiations, see Chapter 12.

C h a p t e r 14 1 This chapter does not directly consider IG O s or U N agencies, as participation by these

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organizations tends to be more passive (e.g. monitoring proceedings) or project-based (e.g. conducting adaptation activities in the field), rather than focused on making inputs to the negotiations. However, the rules and practices relating to N G O s discussed in this chapter do apply, for the most part, also to IG O s and UN agencies, with important differences highlighted. Participation by the media is governed only skeletally by the organization of the negotiation process and is therefore not discussed here. 2 A vast literature has emerged examining the role of N G O s in international regimes in general, and the climate change negotiations in particular. See, for example, Chatterjee and Finger (1994), Albin (1999), Newell (2000), Carpenter (2001), Yamin (2001). 3 See, for example, the rules of procedure for the ozone regime (UNEP, 2003) and the CBD (CBD , 1994). 4 The US statement concerned not only the participation o f N G O s at workshops, but also the attendance of parties to the Convention (but not the protocol) as observers to expert groups, notably the CDM -Executive Board. See FCCC /SBI/2002/M 1SC .8. 5 One of the proposals floated as part of the pre-Kyoto debate on N G O participation was for N G O s to be required to ‘declare support for the aims of the Convention, for example, its objective and principles’ (FC C C /SB I, 1997d, p3). Such a proposal was, unsurprisingly, strongly denounced by N G O s of an obstructionist bent (e.g. Ecologic, 1997). 6 This was formally acknowledged by the SBI in the conclusions of its 20,hsession in 2004. See I S B I 20 report, paragraph 102. 7 Although some European E N G O s (e.g. Climate Network Europe) sometimes included E1T nationals on their delegations. 8 Agenda 21 (1992) was a key output of the 1992 Earth Summit, setting out a 40-chapter ‘blueprint’ for advancing towards sustainable development. 9 At this point, the US was in essence relaying the complaints of certain (US-based) B IN G O s, who were not satisfied with the use of the International Chamber of Commerce as their constituency focal point. The focus of US concerns later switched in 2004 to the newly established R IN G O constituency and the basis for its recognition. 10 Available at http://unfccc.int/resource/ngo/coc_guide.pdf. 11 The rules of procedure state that ‘Meetings of the Conference of the Parties shall be held in public, unless the Conference of the Parties decides otherwise’. The rules of procedure state that subsidiary body meetings shall be held in private unless the C O P decides otherwise, but in accordance with established practice in climate change regime, this means that admitted observers may attend. 12 Author’s calculation, based on cassette recording on file with secretariat. Many speakers did not identify themselves, and could have been from N G O s. 13 Although ‘side events’ were termed ‘special events’ until SB ST A /SB I 18 in 2003.

R eferen ces

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C O P 2 report, part I, Report o f the Conference o f the Parties at its second session held at Geneva from 8 to 19 July 1996. Part I: Proceedings. Document FC C C /C P /1996/15 C O P 2 report, part II, Report o f the Conference o f the Parties at its second session held at Geneva from 8 to 19 July 1996. Part II: Action taken by the Conference o f the Parties. Document FC C C /C P /1996/15/A d d .l C O P 3 report, part I, Report o f the Conference o f the Parlies on its third session, held al Kyoto from 1 to 11 December 1997. Part I: Proceedings. Document FC C C /C P /1997/7 C O P 3 report, part II, Report o f the Conference o f the Parties on its third session, held at Kyoto from 1 to 11 December 1997. Part II: Decisions adopted by the Conference o f the Parties. Document F C C C /C P /1997/7/A d d. 1 C O P 4 report, part I, Report o f the Conference o f the Parlies at its fourth session held al Buenos Aires from 2 to 14 November 1998. Part I: Proceedings. Docum ent F C C C /C P /1 998/16 C O P 4 report, part II, Report o f the Conference o f the Parties at its fourth session held at Buenos Aires from 2 to 14 November 1998. Part II: Action taken by the CO P at its fourth session. Document F C C C /C P /1998/16/A d d .l C O P 5 report, part I, Report o f the Conference o f the Parlies on its fifth session, held at Bonn from 25 October to 5 November 1999. Part I: Proceedings. Document F C C C /C P /1999/6 C O P 5 report, part II, Report o f the Conference o f the Parties on its fifth session, held at Bonn from 25 October to 5 November 1999. Part II: Action taken by the Conference o f the Parties at its fifth session. Document FC C C /C P /1999/6/A d d .l C O P 6 (part I) report, part I, Report o f the Conference o f the Parlies on the first part o f its sixth session, held at The Hague from 13-25 November 2000. Part I: Proceedings. Document F C C C /C P /2 0 0 0 /5 /A d d ! C O P 6 (part I) report, part II, Report o f the Conference o f the Parties on the first part o f its sixth session, held at The Hague from 13-25 November 2000. Part II: Action taken by the Conference o f the Parties at the first part o f its sixth session. D ocum ent FC C C /C P /2000/5/A d d.2 C O P 6 (part II) report, Report o f the Conference o f the Parties on the second part o f its sixth session, held at Bonn from 16 to 27 July 2001. Document FC C C /C P /2001/5 C O P 7 report, part I, Report o f the Conference o f the Parties on its seventh session, held at Marrakesh from 29 October to 10 November 2001. Part I: Proceedings. Document FC C C /C P /2001/13 C O P 7 report, part II, Report o f the Conference o f the Parties on its seventh session, held at Marrakesh from 29 Octoberto 10 November2001. Part II: Action taken by the Conference o f the Parties. Documents F C C C /C P /2 0 0 1 /1 3 /A d d .l-4 C O P 8 report, part I, Report o f the Conference o f the Parties on its eighth session, held at New Delhi, from 23 October to 1 November 2002. Part I: Proceedings. Document FC C C /C P /2002/7 C O P 8 report, part II, Report o f the Conference o f the Parties on its eighth session, held at New Delhi, from 23 Octoberto 1 November2002. PartII: Action taken by the Conference o f the Parties at its eighth session. Document FC C C /C P /2002/7/A d d. 1-3 C O P 9 report, part I, Report o f the Conference o f the Parties on its ninth session, held at Milan from 1 to 12 December 2003. Part 1: Proceedings. Document F C C C /C P /2003/6 C O P 9 report, part II, C O P 9 report, part I, Report o f the Conference o f the Parties on its ninth session, held at Milan from 1 to 12 December 2003. Part II: Action taken by the Conference o f the Parties at its ninth session. Documents F C C C /C P /2 0 0 3 /6 /A d d .l-2 CoW (1997a) First meeting, 1 December. Notes on file with secretariat and author CoW (1997b) Third meeting, 2 December. Notes on file with secretariat and author CoW (1997c) Fourth meeting, 3 December. N otes on file with secretariat and author CoW (1997d) Tenth meeting, 6 December. N otes on file with secretariat and author CoW (1997e) Thirteenth meeting, 10 December. Notes on file with secretariat and author CoW (1997f) Fourteenth meeting resumed, 11 December. N otes on file with secretariat and author

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Estrada, R. (1997) Report on the work o f the AGBM to the third Conference o f the Parties. On file with secretariat and author FC C C (1992) United Nations Framework Convention on Climate Change. U N E P /IU C : Geneva FC C C (1996) Article 17.2 o f the Convention: Opinion received from the United Nations Office o f Legal Affairs. 11 July 1996 F C C C (2000) A guide to the climate change process. Bonn: Climate Change Secretariat F C C C press release (1996) Climate Change negotiations enter new phase. 13 December 1996. On file with author, and available at www.unep.ch/iuc F C C C /A G B M /1996/10, Synthesis o f proposals by parties FC C C /A G B M /1997/2, Framework compilation o f proposals from parties fo r the elements o f a protocol or another legal instrument F C C C /A G B M /1 9 9 7 /3 /A d d .l, Proposals for a protocol or another legal instrument. Report of the Ad H oc G roup on the Berlin Mandate on the work of its sixth session, Bonn, 3-7 March 1997. Addendum FC C C /A G B M /1997/7, Completion o f a protocol or another legal instrument: Consolidated negotiating text by the Chairman F C C C /A G B M /1997/IN F .l, Reports by the Chairmen o f the informal consultations conducted at the seventh session o f the A d Hoc Group on the Berlin Mandate FC C C /A G B M /1997/M ISC .8, Implementation o f the Berlin Mandate. Proposals from parties F C C C /C P /1996/1/A dd. 1, Provisional agenda and annotations including suggestions fo r the organization o f work. Ministerial roundtable F C C C /C P /1996/2, Organizational matters: Adoption o f the rules o f procedure F C C C /C P /1997/2, Adoption o f a protocol or another legal instrument: Fulfilment o f the Berlin Mandate. Revised text under negotiation FC C C /C P/1997/C RP .2, Non-paper by the Chairman o f the Committee o f the Whole FC C C /C P/1997/C R P .4, Untitled FC C C /C P/1997/C R P .6, Kyoto Protocol to the United Nations Framework Convention on Climate Change. Final draft by the Chairman o f the Committee o f the Whole FC C C /C P /2000/5/A d d.3 (Vol IV and V), Texts forwarded to the resumed sixth session by the Conference o f the Parties at the first part o f its sixth session FC C C /C P/2000/IN F.3 (Vol V), Texts forwarded by the subsidiary bodies to the Conference o f the Parlies at the first part o f its sixth session FC C C /C P /2001/2 and A d d.1-6, Consolidated negotiating text prepared by the President FC C C /C P /2001/5/A d d.2, Draft decisions on ivhich progress was noted by the Conference o f the Parties at the second part o f its sixth session and which the Conference o f the Parties decided to forward to its seventh session for elaboration, completion and adoption FC C C /C P/2001/C RP .8, Note by the Co-Chairmen o f the negotiating groups FC C C /C P /2001/M ISC .4, Statements made in connection with the approval o f the Bonn Agreements on the implementation o f the Buenos Aires Plan o f Action (decision 5/CP. 6) FC C C /C P /2001/M ISC .9, Closure o f the session. Views from a party F C C C /C P /2 0 0 3 /l/A d d .l, Round-table discussions among ministers and other heads o f delegation F C C C /C P /2003/O D /9, Daily programme for Wednesday, 10 December 2003 (CO P 9) F C C C /K P (1997) The Kyoto Protocol to the United Nations Framework Convention on Climate Change. U N EP /IU C : Geneva FC C C /N on-paper (2000a) Non-paper from the President-designate o f CO P 6 FC C C /N on-paper (2000b) Non-paper from the President o f COP 6 FC C C /N on-paper (2000c) Note by the President o f the COP FC C C /N on-paper (2001) Core elements fo r the implementation o f the Buenos Aires Plan o f Action F C C C /S B /1 999/2, Work programme on methodological issues related to Articles 5, 7 and 8 o f the Kyoto Protocol

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Index

activism 62, 64, 76 Ad H oc G ro u p on the Berlin M andate (A G B M ) arenas 105, 122, 126, 128, 141 Bureau 55, 58, 60 decision-m aking 101 N G O s 2 2 1 ,2 2 3 rules of conduct 87 texts 150, 162 time management 179-180 see also Kyoto Protocol negotiations ad hoc meetings 105, 143-144 A G B M see Ad H o c G rou p on the Berlin M andate agreem ents 9, 154-156, 176-177, 180-181, 202 Alliance of Sm all Island States (A O SIS) 30 Annex I countries 39, 41 A O SIS see Alliance o f Sm all Island States Ashe, Jo h n 40, 44, 60, 199 Australia 94-9 5 , 101 backloading 175, 178, 182, 1 9 3 ,2 0 3 ,2 3 3 see also procrastination BAPA see Buenos Aires Plan o f Action bargaining arenas 6 ,1 1 6 -1 1 7 ,1 2 8 - 1 3 0 , 233 com petitiveness 12—13 ministerial input 200 N G O s 217-218, 219 plenaries 106, 107, 109-110 texts 148, 151, 152, 153, 156 time management 177-178, 179, 181, 187 see also deal-making; debate Berlin M andate 23, 27 bias 48-49, 66, 68, 70 B IN G O s see business and industry non­ governmental organizations Bonn Agreem ents 25, 27, 89, 172, 173-174 see also post-Kyoto negotiations Brazil 50 Buenos Aires Plan o f Action (BAPA) 25, 27, 4 5 ,1 0 6 , 184-185

see also post-Kyoto negotiations bureaux 16, 37-3 9 , 41, 5 4 -6 1 , 123, 213, 231 business and industry non-governmental organizations (B IN G O s) 210, 211, 220, 2 2 2 ,2 2 6 ,2 2 9 C anada 95, 97 capacity-building w orkshops 139, 142 C D M see clean developm ent mechanism Chairs decision-m aking 98-101 inform al groups 117 N G O participation 224 texts 156-163, 165, 166, 167, 168, 170 w orkshops 141 see also N ote by the President; presiding officers China 30, 118 see also G rou p o f 77 and China Chow, K ok K ee 43, 45, 49, 50, 100 clean developm ent mechanism (CD M ) 75-76, 121 Co-Chairs 39-4 0 , 44, 198, 199, 200, 201 coalitions C h airs texts 161 com plexity 9, 29-31 consensus 92 negotiating arenas 120, 122, 124-127, 129, 130 code o f conduct 216-217 Com m ittee o f the W hole (CoW ) 111-112, 134-135 com petitiveness 2, 11-13, 32 com plem entary forum s 137-144, 223-224, 233-234 complexity consensus decision-making 104 continuity 231 ministerial input 206 participation 2, 8-10, 28-29 post-Kyoto negotiations 31-32 rules o f conduct 81 secretariat 70-71

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texts 233 time m anagem ent 173-174 compliance 126, 129, 134, 163, 167, 183, 202 com prom ise 1 2 ,7 3 , 131-132, 156-158, 191, 202, 207 Conference of the Parties (C O P ) see Conference of the Parties Conference of the Parties (C O P ) Bureaux 54-61 decision-making 22 friends groups 123 ministerial input 194-195, 198 N G O s 220 plenaries 86, 109-110 working bodies 111-113 1-3, see also Kyoto Protocol negotiations 4 -7 , see also post-Kyoto negotiations 7 -8 , see also post-M arrakesh negotiations see also bureaux; presiding officers confercncc room papers (CRPs) 147, 182 consensus decision-m aking 44-45, 91-104 constituency system 56, 58, 60, 214-216, 222 consultation 57, 115-116, 127-128, 157, 161 contact groups 39, 46, 57, 114, 121, 184, 2 1 8 -2 1 9 ,2 2 2 continuity 42, 53, 72-7 3 , 78, 183-184, 193, 231 Core elements paper 45, 131, 160, 167, 207 CoW see Com m ittee of the Whole C R Ps see conference room papers deadlines 150, 173, 180, 184-185, 188-189, 193 deal-making ministerial input 200-202 negotiating arenas 6, 131-135, 190-191 texts 148, 163,233 time management 177-178, 181, 182-183, 18 8 ,1 8 9 debate com plem entary forum s 139, 143 general 195-197 plenaries 106, 107, 110, 200 roundtables 198-199 side events 229 see also bargaining; deal-making decision 1/CP.5 127, 185 decision-making bureaux 58-59, 61 negotiating arenas 5, 106, 192 presiding officers 45-46 rules 81, 91-104 supplem entary 15, 33 time management 185 uncertainty 19 variables 14 definitions 5, 14 delegations 10, 28-2 9 , 83, 119-120, 150-151, 1 9 2 - 1 9 3 ,2 1 3 ,2 3 0

see also size of delegation developed countries 30, 204-205, 206 developing countries learning 235 ministerial input 204-205, 206, 207 negotiating arenas 109 N G O participation 213-214 presiding officers 2 rules o f conduct 82, 83, 88, 90 side events 143 see also non-Annex I countries diplom acy 52, 73 direct participation 200-211 discordant interdependence 5 -6 docum entation complementary forum s 142-143 N G O s 219-220, 224-226 rules o f conduct 81, 82, 86-87 see also texts D ovland, H arald 40, 51, 52, 86, 100 draft rules of procedure see rules of procedure draft texts 73-74, 77, 8 6-87, 110, 114, 142-143 Econom ies in Transition (E IT ) 31 efficiency balancing 232, 234 friends groups 123-124 general debate 196 iniorm al arenas 113, 135-136, 139, 144 time m anagem ent 175 E IT see Econom ies in Transition elections 3 7 ,3 9 , 53, 185,232 em issions 1 8 -1 9 ,2 3 -2 4 , 133, 177, 182 energy 16, 52-53, 58, 59, 70-77 English language 51.-52, 117-118 E N G O s see environmental non­ governmental organizations environmental non-governmental organizations (E N G O s) 210, 211, 220, 222, 226, 229 equal say rule 80, 81-82 equity 18, 20, 80-84, 89, 90, 103, 118-119 see also procedural equity E strada, Raul consensus decision-m aking 98-100, 103 N G O s 218-219 roles 42, 43, 45, 46, 47 secretariat 67-68 six-month rule 58 skills and qualities 48, 49-5 0 , 52, 53 texts 158-159, 162 time m anagem ent 179-183 see also Kyoto Protocol negotiations E U see E uropean Union E uropean Union (E U ) 30-3 1 , 144, 189, 190, 191 evolving processes 182, 235

Index exclusion 127, 130, 132-134, 179,2 1 7 , 2 1 8 - 2 2 0 ,2 2 4 ,2 3 0 Executive Secretaries 63, 69, 224 exhaustion, negotiation by 178, 186, 189, 190-193 E xpan d ed Bureaux 57, 123-124, 161 see also friends groups experience 50-5 1 , 53, 60, 72 expert forum s 139, 142 exploratory events 6, 75, 149-152, 176-177, 233-234 face-saving devices 109, 151, 157 facilitation 41, 75-76, 165 final negotiating texts 163-164, 167, 170 flexibility m echanism s key elements 24 secretariat 74-75 texts 150, 156, 168 time management 173-174, 183 w orkshops 138 focus groups 127-128 form al level 2, 10-11, 104, 105, 106-113, 135 founding texts 15, 32-33 framework com pilation texts 166 friends groups arenas 1 0 5 ,1 1 2 -1 1 3 , 122-131, 135 m inisterial input 205, 207 texts 163-164 time management 187, 189, 190 funding 6 3 ,8 3 , 1 4 0 ,2 0 5 ,2 1 4 further negotiation texts 167, 170 general debate 195-197 G eneva M inisterial D eclaration 101-102, 110, 179-180 G lob al Environment Organization 2-3 G rou p o f 77 and China 30, 87, 89, 151 high-level segm ents 194-195, 208 high-level side events 75-7 6 , 143 Iccland 97 IG O s see intergovernmental organizations THLP see informal high-level plenaries impartiality 36, 39, 48-4 9 , 65, 66 Indigenous People’s O rganizations (IPO s) 214-215 industrial countries 23-24 inequality 2, 9-10, 28 informal level arenas 104, 105, 1 0 7 ,1 0 8 -1 0 9 , 112, 113-122, 135 Bureaux 56, 57-60 com plem entary forum s 137-144 high-level plenaries (IH L P ) 112 N G O s 214-216, 2 18-219 practices 15, 33-34 presiding officers 36, 39-41, 49

255

roundtables 198 rules o f conduct 80-8 4 , 86 secretariat 64-6 5 , 75-76 voting 102 see also side events; unofficial level information 68, 79, 143, 147 inspiration 4 6 -4 7 , 124 institutional aspects 15, 22, 34, 62-64 inter-sessional w orkshops 139, 140, 176-177 intergovernmental organizations (IG O s) 31, 56, 112, 1 1 9 ,2 1 2 ,2 1 3 ,2 3 3 -2 3 4 Internet technology 225 interpretation informal groups 114, 118 negotiation by exhaustion 192, 193 rules o f conduct 81, 82, 84, 87, 88 see also translation inventory precursor texts 153-157 IP O s see Indigenous P eop le’s Organizations Jap an 94, 95 joint contact groups 114, 121 joint implementation 202 Kante, Bakary 43, 51 Kyoto Protocol negotiations arenas 1 0 9 ,1 1 0 -1 1 2 ,1 2 0 -1 2 1 , 129, 133, 134-135 C h air’s texts 157, 158-159, 161 com plem entary forum s 138, 140 consensus decision-m aking 94-103, 103 docum entation 146, 166 duration 171-173 exhaustion 190, 191, 192, 193 ministerial input 196, 203, 205 N G O s 210, 221 ratification 2 regime developm ent 2 2 -2 4 , 27 rules o f conduct 84-85, 87-88 secretariat 63, 66, 6 7-68, 69, 75, 76 texts 149, 155, 163 time management 177, 179-183 see also Ad H oc G rou p on the Berlin M andate; E strada, Raul land use, land-use change and forestry (L U L U C F ) inconsistency 121 N G O s 225 presiding officers 49 secretariat 74-75 texts 150, 170 time management 173, 174, 183, 184 language English only 117-118, 123 official 81, 82 skills 51-52 texts 154, 160, 164 last resort bargaining 93, 103, 109-110

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L D C s see least developed countries leadership 16, 36, 41-48, 59, 79 learning processes 176, 235 least developed countries (L D C s) 30, 83, 109 legal language 154, 160 legitimacy 59, 66-6 9 , 93 L G M A s see Local G overnm ent and M unicipal Authorities L ocal Governm ent and M unicipal Authorities (L G M A s) 214 L U L U C F see land use, land use change and forestry majority voting 93, 98 m andates 6, 36-3 7 , 56-5 7 , 64-65 m arkers o f text 153, 153-156 M arrakesh A ccords 3. 25, 31, 168, 169-170, 172, 174-175 see also post-Kyoto negotiations ministerial level 41, 112, 187, 188, 194-209 M ISC see miscellaneous docum ents m iscellaneous docum ents (M ISC ) 147, 1 4 9 -1 5 1 ,2 2 4 -2 2 6 motivation 46-4 7 , 185 national level 31, 68, 138, 143, 199 New Delhi Work Program m e 68, 138 New Zealand 97 N G O s see non-governmental organizations no more than two m eetings rule 34 nom inations 41, 55, 60 non-Annex I countries 39, 41, 195, 208 see also developing countries non-bargaining arenas see complementary forum s non-governmental organizations (N G O s) arenas 1 0 6 ,1 0 7 -1 0 8 ,1 1 2 , 1 1 4 ,1 1 9 ,1 3 5 , 198 Bureaux 56 C h air’s texts 161 com plem entary forum s 141, 142 exclusion 179 participation 29, 45, 2 09-230, 233-234 side events 75-76 transparency 11 non-groups 114 non-papers 86-87, 146, 147, 160, 164, 166, 16 7 ,2 2 0 non-profit criteria 212-213 N orth -South divide 30, 32 notation devices 154 N ote by the President 159-160, 162, 162-163, 164, 187 see also Chairs, texts; Pronk, Jan objections 92, 98-9 9 , 101-102 observations 217-219 obstructionism 32, 66, 84, 86, 90, 96, 234 officials 194, 202, 203, 204-205, 206, 207-208

O P E C see O rganization of Petroleum E xportin g Countries open-ended meetings 125, 218-219 opening statem ents see position speeches Organization of Petroleum E xporting Countries (O P E C ) negotiated buy-ins 94, 95 negotiating arenas 109 position 30, 32 procedural blockage 96, 218 rules o f conduct 84 over-reliance 203-204 ownership 43, 117, 140, 155, 162 participation complementary forum s 141, 141-142 funding 83 inequality 8-1 0 , 28, 29 ministerial 194-209 negotiating arenas 114, 115, 116, 119, 124-127, 130 N G O s 1 1 ,2 0 9 -2 3 0 perceptions 9, 48-4 9 , 203, 211 plenary m eetings 106-111, 200, 218, 220-223 political aspects Bureau 60 complementary forum s 138 inform al consultations 115 ministerial input 194-209, 206 position 2, 7 rules o f conduct 84-85, 88-90 secretariat 78 side events 143-144, 226-227 texts 154 time m anagem ent 174-175, 185, 186 position speeches 107-108, 195, 196 positional bargaining 12 post-Kyoto negotiations Bureau 58, 59 C h airs texts 157, 159-160, 161-162 com plem entary forum s 137, 138-139, 140, 142 com plexity 31-32 decision-m aking 95, 96, 97 duration 173-174 exhaustion 190, 191 exploration and learning 176-177 friends groups 128-129, 130, 131-132 informal 115-116, 121, 125 last resort bargaining 110 ministerial input 197, 204, 205-207 M ISC 150 negotiating texts 154, 155-156, 164, 168 N G O s 211, 222, 223, 225 plenaries 106, 107-108, 112 presiding officers 39, 41-4 2 , 45, 47, 49, 5 1 ,5 3 regime developm ent 2 4-26, 27 rules o f conduct 88, 89

Index secretariat 7 4 -7 5 , 76-77 text developm ent 149, 167 time management 174-175, 183-189 unofficial 133-134 see also Bonn Agreements; Buenos Aires Plan o f Action; flexibility mechanism s, land use and land-use change and forestry; M arrakesh A ccords post-M arrakesh negotiations arenas 131 Bureau 59 last resort bargaining 110 ministerial input 199 regime developm ent 25, 26, 27 secretariat 70, 75-76 side events 227-228 practical equality 10 pre-sessional consultations 139, 140-141 precursor texts 145, 151-152, 169, 170 preparatory m eetings 127-128 presiding officers 16, 35-53 Bureau 54 consensus decision-m aking 103 decision-m aking 92 election 185 key insights 231-232 negotiating arenas 109, 115, 122-123, 136 N G O participation 224 rules o f conduct 89-90 secretariat 66-67 texts 148, 156,233 time management 178, 183-184, 186-187, 188-189 see also Chairs procedural aspects 10, 28, 45, 7 0-71, 71-73, 9 5 -1 0 3 ,2 3 4 see also rules of procedure procedural equity arenas 1 0 4 ,1 0 6 ,1 1 3 ,1 1 9 -1 2 0 , 135-136 com plem entary forum s 142 consensus decision-m aking 94-95 ministerial input 197 transparency and efficiency 232 procedure, see also rules of conduct process-oriented leadership 16, 36, 41-48, 5 9 ,7 1 ,7 9 , 232 procrastination 138, 165, 175, 183, 184, 233 see also backloading o f negotiations program m e coordinators 63 Pronk, Jan presiding officers 45, 47, 49, 51 shuttle diplom acy 129, 131-132 texts 154, 157, 159-160, 162, 162-163, 167 time management 187-189 see also post-Kyoto negotiations proposals 6, 4 4-45, 67, 148, 149-151, 153, 177, 183 see also precursor texts; raw material proposed com prom ise texts see Chairs, text

251

public interest 11, 135, 196 quorum 81, 82, 85, 88 R apporteur 55, 56 ratification 2, 2 5 -2 6 , 26, 66, 172 raw material texts 145, 149-151, 166, 168, 169 regional level 37, 38, 39, 54-5 5 , 139 reporting 142, 229 representation 124, 142 Research-oriented and Independent non­ governmental organizations (R IN G O s) 2 1 4 ,2 1 5 reviewing processes 13, 2 2 -2 3 , 70 right to speak 81-82 R IN G O s see Research-oriented and Independent non-governmental organizations roundtable forum s 137-143, 197-200, 208, 223 rules conduct 3 2 ,4 2 - 4 4 , 80-90, 104 decision-m aking 91-104 N G O adm ission 212-216 rules o f procedure Bureaux 54, 56 governance 15, 32-33, 231 N G O s 212 political strategy 84-85 presiding officers 35, 36 secretariat 64 voting 91, 93 Russian Federation 88, 89, 95, 97, 118, 140 Saudi A rabia 86, 92, 94 scheduling 118-119 Scheveningen, The N etherlands 125 secretariats bureaux 56 learning 235 negotiating arenas 122, 137 N G O s 2 12-213, 2 15-216, 217, 224, 230 organization 231 side events 143, 229 support 44, 232 texts 148 time m anagem ent 178 web-only docum ents 225 shuttle diplom acy 129, 131-132, 134, 135, 2 0 6 - 2 0 7 ,2 0 8 side events 7 5-76, 143-144, 226-229 SID S see small island developing states single negotiating texts 145, 152-156 six-month rule 58, 81, 84-85, 179, 184 size of delegation 10, 28, 29, 119-120, 192-193 small island developing states (SID S) 30, 54-55, 83

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South Africa 202 speakers 72, 81-82, 85-86 specialization 32, 78, 117, 120 square brackets 58, 153 status of documents 164 stock-taking 108-109, 112, 180 subsidiary bodies bargaining and deal-making 187 Bureaux 55, 56, 57, 59, 60 complementary forums 138 decision-making 92, 100, 102 explanatory statements 97 informal plenaries 86 institutional structure 22 negotiating arenas 106, 107, 110, 114, 130-131 N G O s 210, 211, 212, 218, 221-222, 224, 225-226 presiding officers 35, 36-37, 37-39, 39, 40, 44, 45, 50 procedural opportunism 85 secretariat 77 time management 174 substantive inputs 44-45, 73, 76-77, 128 symbolic markers 146, 147, 179, 181-182, 184, 185, 187 technical aspects complementary forums 138, 140 documentation 147 informal consultations 115 ministerial input 194-209, 206 presiding officers 51 secretariat 74-75, 78 time management 173-174, 182, 186 texts evolution 145-170, 233 ministerial input 202, 203-204, 206, 207 time management 179, 182, 187-188, 191, 194 see also documentation Thorgeirsson, H alldor 43-44, 49, 50 time management 118-119, 157, 160-161, 162, 171-193, 195-196 transaction costs 9, 81, 84, 85, 90, 95-96, 130, 197 translation 82, 84, 86, 87, 164 see also interpretation transparency complementary forums 142 equity 10-11, 232 formal meetings 104, 106

informal arenas 113 ministerial input 197-198 negotiating arenas 119-120, 135-136 N G O s 209, 217, 220, 230 rules o f conduct 82-84, 85, 90 texts 165 Umbrella G roup 31 U N FC C C see United Nations Framework Convention on Climate Change unfinished business 172-174 U N G A see United Nations General Assembly United Nations Framework Convention on Climate Change (U N FC C C ) 3, 21-26 United Nations General Assembly (U N G A ) 2 1 - 2 2 ,3 4 ,2 1 0 , 220 United States of America (USA) decision-making 92, 97, 100 general debate speeches 196 negotiating arenas 107-108 ratification 23, 25-26 side events 144 texts 151 time management 174, 186 unofficial deal-making 189, 190 unofficial level arenas 105, 132-134, 135 contacts 183 deal-making 189, 190 documentation 220 ministerial input 205 N G O s 229-230 see also informal level veil of legitimacy 66-69, 232 voluntary commitments 45, 48, 83, 115, 159 voting Chair’s texts 159 decision-making 95, 98, 102, 103 presiding officers 45, 46 rules 33, 80, 91,9 3 Waller Hunter, Jo ke 69 websites 147,220, 225,229 wider institutional settings 15, 34 working bodies 111-113, 114 w orkshops 137-143, 211, 223-224 Zummit Cutajar, Michael 36, 43, 59, 65, 69-70, 150,2 0 0 ,2 2 4