The Organization of the Kyoto Protocol Negotiations: Lessons for Global Environmental Decision-Making

THE ORGANIZATION OF THE KYOTO PROTOCOL NEGOTIATIONS: LESSONS FOR GLOBAL ENVIRONMENTAL DECISION-MAKING

Joanna Jane Depledge Department of Geography University College London

Submitted in accordance with the requirements for the degree of PhD

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ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 ABSTRACT

Global negotiations on environmental problems raise complex challenges for diplomacy, such as dealing with complexity, uncertainty and equity dilemmas. Such challenges are particularly acute in the case of climate change. This thesis examines negotiations under the climate change regime, which overcame such challenges to reach agreement on the Kyoto Protocol in December 1997.

Using the analogy of negotiation as ‘theatrical performance’, the thesis analyses the organization of the Kyoto Protocol negotiation process and its effectiveness. This is an under-researched topic, despite its importance. Organizational elements are often open to policy manipulation, and can therefore be ‘stage-managed’ to maximize the chances of a successful negotiation. The thesis examines six organizational elements: the negotiation organizers, namely, the presiding officers, bureau and secretariat; rules for the conduct of business and decision-making; negotiating arenas; participation rules for parties and non-state organizations; arrangements for the input of scientific information; and the use of texts and time as negotiating tools.

Little research has yet been conducted on what constitutes an effectively organized negotiation. To advance work in this regard, the thesis presents six effectiveness criteria that could be used to assess the organizational effectiveness of multilateral negotiations. These criteria - efficiency; procedural equity; transparency; information accessibility; promotion of a cooperative approach; and provision of leadership and skill and energy - are applied in the thesis to the case- study of the Kyoto Protocol negotiations.

The thesis begins by locating its subject matter within the negotiation and regime literatures, and by exploring the concept of the organization of the negotiation process and its effectiveness. After explaining the background to the Kyoto Protocol negotiations and their main political dynamics, the thesis uses the six effectiveness criteria to consider each of the organizational elements of the Protocol negotiations and their effectiveness. It then assesses how effectively the negotiations were organized as a whole, identifying lessons to be learnt. ACKNOWLEDGMENTS

First and foremost, thanks is due to my supervisor, Professor Jacquie Burgess, who agreed to take me on as her PhD student when I changed my thesis topic from urbanization in Brazil to the organization of the climate change negotiations. I am sincerely grateful for her unfailing support and encouragement throughout this PhD process, which has been a rather unusual one. Thanks is also due to the ESRC for their invaluable financial support (postgraduate training award R00429634040), and for having demonstrated the administrative flexibility necessary to accommodate my work at the UNFCCC 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 thesis. It would exceed the word limit of this thesis to give the thanks they deserve to all my climate change friends and colleagues around the world who have inspired, encouraged, informed and enlightened me over the past few years. I must, however, single out five individuals, who laid the foundations for this thesis: Richard Kinley, Michael Zammit Cutajar and Greg Terrill, who understand the importance of effective organization; Ambassador Estrada, without whom the story of this thesis would have been very different; and Dr. Ian Rowlands, formerly at the London School of Economics and Political Science, now at the University of Waterloo in Canada, who instilled in me a fascination with climate change that has only grown over the years.

And finally, thank you is too weak a word for my mother and Michael, who, in their different ways, helped me more than they know. THE ORGANIZATION OF THE KYOTO PROTOCOL NEGOTIATIONS: LESSONS FOR GLOBAL ENVIRONMENTAL DECISION-MAKING

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Source: Tiempo, 1996.

‘The balance between war and peace may be a matter not of the nature of the differences that divide us, but of the process we use to resolve those differences'' (Raiffa, 1991:9).

“...without a knowledge of how institutions work - and what makes them work well - there are likely to be fewer, and worse, institutions than if such knowledge is widespread” (Keohane, 1989:174). TABLE OF CONTENTS

TABLE OF CONTENTS...... 5 ACRONYMS AND ABBREVIATIONS...... 10 A BASIC CHRONOLOGY OF THE KYOTO PROTOCOL NEGOTIATIONS 11

CHAPTER 1...... 13 INTRODUCTION...... 13

The research project...... 13 Methodology ...... 16 The structure of the thesis ...... 19

CHAPTER 2 ...... 21 THE ORGANIZATION OF THE NEGOTIATION PROCESS AND ITS EFFECTIVENESS; AN ANALYTICAL FRAMEW ORK...... 21

INTRODUCTION...... 21 NEGOTIATIONS...... 22 The negotiation process...... 22

Multilateral negotiations...... 24

Multilateral negotiations in the literature ...... 27

THE GLOBAL ENVIRONMENTAL AGENDA...... 30 REGIMES...... 34 Regime development...... 37 THE ORGANIZATION OF THE NEGOTIATION PROCESS...... 37 Conceptualizing the organization of the negotiation process...... 39

The organizational elements...... 39

ASSESSING THE EFFECTIVENESS OF THE ORGANIZATION...... 43 Effectiveness in the literature...... 43

The negotiation goal...... 45

Effectiveness criteria...... 46

Putting the criteria together...... 61

SUMMARY AND CONCLUDING REMARKS...... 61

CHAPTER 3...... 62 SETTING THE SCENE: A PROLOGUE AND THE PLOT...... 62

INTRODUCTION...... 62 A PROLOGUE TO THE KYOTO PROTOCOL NEGOTIATIONS...... 62 Climate change: A unique problem ...... 62

The climate change regime...... 69

THE INTRICATE PLOT OF THE KYOTO PROTOCOL NEGOTIATIONS 76 The key negotiating issues ...... 77

5 The political dynamics...... 79 ANALYZING THE PLOT...... 93

CHAPTER 4 ...... 97 THE PRODUCTION TEAM: THE PRODUCERS, PRODUCTION ASSISTANTS AND STAGE MANAGERS...... 97

INTRODUCTION...... 97 THE PRODUCERS: PRESIDING OFFICERS...... 97 The AGBM Chairman...... 99 The COP 3 President...... 110 THE PRODUCTION ASSISTANTS: THE AGBM BUREAU...... 113 Election and composition...... 114 Roles of the AGBM bureau...... 115 THE STAGE MANAGERS: THE SECRETARIAT...... 117 Establishment, mandate and functions ...... 118 Opportunities and constraints...... 121 The secretariat’s role in the Protocol negotiations...... 126 SUMMARY AND CONCLUDING REMARKS...... 132

CHAPTER 5...... 133 CHOREOGRAPHING THE MOVES: RULES FOR THE CONDUCT OF BUSINESS AND DECISION-MAKING...... 133

INTRODUCTION...... 133 THE BASIC CHOREOGRAPHY OF THE CLIMATE CHANGE REGIME 133 THE CONDUCT OF BUSINESS...... 135 Pragmatic application, bypass and relaxation...... 139 Procedure as strategy ...... 142 DECISION-MAKING...... 145 The contested meaning of consensus...... 145 The ‘consensus imperative’ ...... 147 Overcoming the threat of procedural blockage ...... 151 The adoption of the Kyoto Protocol...... 158 SUMMARY AND CONCLUDING REMARKS...... 159

CHAPTER 6...... 161 THE STAGE FOR ACTION: NEGOTIATING ARENAS...... 161

INTRODUCTION...... 161 THE AD HOC GROUP ON THE BERLIN MANDATE AND THE COMMITTEE OF THE WHOLE...... 162 THE CENTRAL STAGE: FORMAL PLENARY MEETINGS...... 164 INFORMAL ROUNDTABLES...... 166 IN THE WINGS: INFORMAL GROUPS...... 170 Non-groups and negotiating groups...... 171

Informal sub-groups ...... 174

The dilemmas of informal groups...... 176

Seeking to resolve the dilemma ...... 182

IN THE BACKROOMS: INFORMAL CONSULTATION GROUPS 185 Expanded Bureau (AGBM)...... 186

Ministerial Group (COP 3 )...... 189

Group of 10...... 191

IN THE DRESSING ROOMS: UNOFEICIAL STAGES...... 192 Unofficial negotiating groups...... 192

In the corridors...... 195

THE NEGOTIATION FINALE: A CoW PLENARY...... 196 SUMMARY AND CONCLUDING REMARKS...... 198

CHAPTER 7 ...... 199 DEVELOPING THE PLOT: ARRANGEMENTS FOR SCIENTIFIC INPUT.. 199

INTRODUCTION...... 199 THE SCIENCE-POLITICS INTEREACE...... 200 DEVELOPING THE PLOT...... 201 The Intergovernmental Panel on Climate Change...... 204

The SB ST A and SBI...... 223

Secretariat...... 225

The Annex I Experts Group...... 227

Competent intergovernmental organizations...... 229

Missing input: Carbon sinks ...... 231

SUMMARY AND CONCLUDING REMARKS...... 234

CHAPTER 8 ...... 237 THE CAST: PARTIES AND NON-STATE ORGANIZATIONS...... 237 INTRODUCTION...... 237

SUPPORT TO DEVELOPING COUNTRY AND EIT DELEGATIONS 237 The difficulties of small delegations...... 237

Forms of support...... 240

The insufficiency of financial support...... 242

MINISTERIAL PARTICIPATION...... 244 Traditional formal debate ...... 246

Ministerial roundtable (COP 2) ...... 247

7 Direct participation...... 250

Disparity in participation...... 252

THE AUDIENCE: NON-STATE ORGANIZATIONS...... 254 Rules for attendance and participation...... 255

Attendance...... 258

Vehicles for participation...... 259

SUMMARY AND CONCLUDING REMARKS...... 271

CHAPTER 9 ...... 276 THE THEATRICAL PROPS: TEXTS AND TIME MANAGEMENT...... 276

INTRODUCTION...... 276 THE DEVELOPMENT OF TEXTS...... 276 The raw material: Miscellaneous documents ...... 279

Precursor texts...... 281

Negotiating texts...... 283

The final texts...... 292

TIME MANAGEMENT...... 295 Duration...... 295

The use of time...... 297

SUMMARY AND CONCLUDING REMARKS...... 309

CHAPTER 10...... 311 REVIEWING THE PERFORMANCE: AN ASSESSMENT AND LESSONS LEARNT...... 311

INTRODUCTION...... 311 THE SIX EFFECTIVENESS CRITERIA...... 311 Efficiency ...... 311

Procedural equity ...... 313

Transparency...... 315 Information accessibility ...... 316

Promotion of a cooperative approach...... 317

Leadership, skill and energy...... 319

CROSS-CUTTING THEMES...... 322 The contingent and the stable ...... 322

The importance of learning...... 324

OVERALL ASSESSMENT...... 326 Nine key lessons ...... 329 APPENDIX A ...... 332 LIST OF INTERVIEWEES...... 332

APPENDIX B ...... 333 INTERVIEW QUESTIONS...... 333

APPENDIX C ...... 337 THE ORGANIZATION OF THE POST-KYOTO NEGOTIATIONS...... 337

BIBLIOGRAPHY...... 341

LIST OF FIGURES

Figure 3.1: Differing perspectives on emissions...... 68 Figure 3.2: The institutional structure of the climate change regime ...... 73 Figure 4.1: Estrada and the secretariat at work ...... 126 Figure 6.1: The many stages of the Kyoto Protocol negotiations ...... 163 Figure 7.1: Requests and inputs made during Protocol negotiations ...... 203 Figure 7.2: Process of consideration of the Second Assessment Report ...... 208 Figure 8.1: Delegation size matters ...... 239 Figure 9.1: A performance in many texts...... 278

LIST OF TABLES

Table 6.1: Roundtables ...... 167 Table 6.2: Non-groups and negotiating groups...... 172 Table 6.3: Informal sub-groups...... 175 Table 7.1: Relevant technical papers prepared by the IPCC...... 217 Table 7.2: Input provided by the secretariat ...... 226 Table 8.1: NGO statements to the AGBM ...... 264 Table 9.1: Comparison of duration with other environmental negotiations 296 ACRONYMS AND ABBREVIATIONS

AGI 3 Ad Hoc Group on Article 13 AGBM Ad Hoc Group on the Berlin Mandate AIXG Annex I Experts Group of the OECD/IEA AOSIS Alliance of Small Island States BATNA Best Alternative to a Negotiated Agreement (Fisher et al., 1992) BINGO Business and industry non-governmental organization CBD Convention on Biological Diversity (1992) CDM Clean development mechanism CFG Chlorofluorocarbon (controlled under the Montreal Protocol) CH4 Methane

CO2 Carbon dioxide COP Conference of the Parties CoW Committee of the Whole (at COP 3) CRP Conference room paper EIT Economy in transition (former Soviet Union and Eastern Europe) ENB Earth Negotiations Bulletin ENGO Environmental non-governmental organization GDP Gross domestic product GHG Greenhouse gas GWP Global warming potential HFC Hydrofluorocarbon lEA International Energy Agency INC Intergovernmental Negotiating Committee for the UNFCCC (1990-5) IPCC Intergovernmental Panel on Climate Change JUSSCANNZ Loose negotiating group, composed of Japan, US, Switzerland, Canada, Australia, Norway, New Zealand and sometimes others LDC Least developed country N2O Nitrous oxide NGO Non-governmental organization OECD Organization for Economic Co-operation and Development OPEC Organization of Petroleum Exporting Countries QELROs Quantified emission limitation and reduction objectives SAR Second Assessment Report of the IPCC SBI Subsidiary Body for Implementation SBSTA Subsidiary Body for Scientific and Technological Advice SPM Summary for policy-makers of an IPCC Assessment Report UNCED UN Conference on Environment and Development (1992) UNCTAD UN Conference on Trade and Development UNEP UN Environment Programme UNFCCC United Nations Framework Convention on Climate Change

10 A BASIC CHRONOLOGY OF THE KYOTO PROTOCOL NEGOTIATIONS

Date Event 1995 28 March - 7 April COP 1 (Berlin) 7 April • Decision 1/CP.l, the Berlin Mandate, adopted • AGBM established, under the Chairmanship of Ambassador Raul Estrada-Oyuela (Argentina) 21-25 August AGBM 1 (Geneva) 30 October - 3 November AGBM 2 (Geneva) November/December IPCC approves/accepts its Second Assessment Report and Summaries for Policymakers 1996 5-8 March AGBM 3 (Geneva) • Informal workshops held on QELROs and policies and measures 8-19 July COP 2 (Geneva) • Ministerial roundtable held • Geneva Ministerial Declaration taken note of AGBM 4 (Geneva) 11-16 July • Roundtables held on QELROs; policies and measures; and possible impacts on developing countries of new conunitments • Estrada receives mandate to prepare a ‘synthesis of proposals’ August Secretariat moves to Bonn. 9-12 December AGBM 5 (Geneva) • Synthesis of Proposals considered • Roundtable held on new proposals from Parties. • Estrada receives mandate to prepare a ‘framework compilation’ 1997 3-7 March AGBM 6 (Bonn) • Framework Compilation consolidated • Roundtable held on differentiation • Non-groups convened on continuing to advance Article 4.1 and institutions & mechanisms • Estrada receives mandate to complete the formal negotiating text 23-24 April Informal consultations convened by Japan (Tokyo) 1 June Deadline for the communication of the formal Negotiating Text according to the six-month rule 16-17 June Expanded bureau meeting on strengthening the commitments in Article 4.2(a) and (b) (Bonn) 12-13 July Expanded bureau meeting on continuing to advance the implementation of Article 4.1 (Geneva)

11 31 July - 7 August AGBM 7 (Bonn) • Negotiating Text debated and consolidated • Non-groups convened on QELROs; policies & measures; continuing to advance Article 4.1; institutions & mechanisms • Outcome of AGBM 7 included in TNF’ document • Estrada receives mandate to prepare a Chairman’s text 9-10 September Informal consultations convened by Japan (Tokyo) 8-9 October AGBM informal consultation on the draft Chairman’s text (Bonn) 22-31 October AGBM 8 (Bonn) • Chairman’s Text used as the basis for negotiation • Non-groups again convened on QELROs (I and II); policies & measures; continuing to advance Article 4.1; institutions & mechanisms • Outcome of AGBM 8 included in Revised Text 8 and 9 November Informal consultations convened by Japan (Tokyo) 30 November AGBM 8, Part II (Kyoto) 1-11 December COP 3 (Kyoto) • Committee of the Whole (CoW) convened • Negotiations based initially on Revised Text • Negotiating groups convened on policies and measures; continuing to advance Article 4.1; and institutions and mechanisms. Estrada takes on QELROs himself. • Several sub-groups also convened, along with a legal drafting group. 7 December Document CRP.2 issued showing status of negotiations at the start of the high level segment 9 December Document CRP.4 issued with draft list of targets 10 December Document CRP.6 issued for the final CoW plenary 10:15, 11 December The CoW unanimously recommends the Kyoto Protocol for adoption by the COP 13:15, 11 December COP 3 adopts the Kyoto Protocol by consensus 1998 - 2001 16 March 1998 Kyoto Protocol is opened for signature 2-14 November 1998 COP 4 (Buenos Aires) 25 Ocf. - 5 TVov. 7999 COP 5 (Bonn) 13-25 November 2000 COP 6, part 1(The Hague): Negotiators fail to reach agreement on the unfinished business of the Kyoto Protocol 16-27 July, 2001 COP 6, part 11(Bonn): The ‘Bonn Agreement’ is adopted registering political consensus on key political aspects of the implementation of the Kyoto Protocol

12 CHAPTER 1

INTRODUCTION

THE RESEARCH PROJECT

This thesis is concerned with how multilateral negotiations, specifically global environmental negotiations, are organized, and how this organization can maximize, or constrain, opportunities for reaching a substantively meaningful agreement. Managing negotiations among more than 180 heterogeneous states on complex, politically controversial issues to forge a mutually acceptable outcome is a difficult and intricate task. The organization of such negotiations, however - the choice of negotiating arenas, use of texts, management of time, channeling of scientific information and input from non-state organizations, roles assumed by the presiding officers and secretariat - rarely attracts attention until it goes wrong. Recent high profile breakdowns, such as the first round of negotiations on the Cartagena Biosafety Protocol (February, 1999), the Seattle Ministerial Conference of the World Trade Organization (December, 1999) and part I of the sixth Conference of the Parties to the UN Framework Convention on Climate Change (COP 6, part I; November, 2000), have begun to draw attention to the dangers of ineffective organization, and how this can contribute to unnecessary negotiating failure.

This thesis seeks to promote better understanding of how multilateral negotiations are organized, and how specific organizational decisions can influence the negotiation process for good or ill. It does so through a case-study of the negotiations on what has been described as potentially “the most profound and important global agreement of the late twentieth century” (Grubb et al., 1999:xxxiii), namely, the Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC) % which was adopted in Kyoto, Japan, on 11 December 1997.

FCCC/KP, 1997; FCCC, 1992.

13 As Raiffa (1991:14) notes, “wise prescriptions should ideally be based on good descriptions”. In this spirit, the research project seeks to develop a thorough descriptive and analytical case-study, but also to go beyond this to propose a broadly applicable analytical framework by which to assess the effectiveness of the organization of multilateral negotiations, putting forward six effectiveness criteria and applying these to the Kyoto Protocol negotiations. In this way, the thesis hopes to draw out lessons that could help improve the effectiveness of future negotiations, including those outside the environmental arena, recognizing that multilateral negotiations face many common challenges.

The basic assumption of this thesis is that the organization of a negotiation process matters. The assumption, however, is a modest one. The thesis does not claim that organizational factors by themselves can account for the success or failure of a negotiation, or even that they are a consistently dominant factor. Rather, the assumption is that the way a negotiation is organized is one of a multiplicity of often competing factors that together shape the negotiation process and direct it towards a particular outcome. The attraction of studying organizational factors lies in their openness to collective policy manipulation. While the extent of possible manipulation varies from factor to factor, short-term organizational decisions can be taken that directly influence the course of negotiations, whereas other forces at play in a negotiation, such as power or the salience of an issue, rarely lend themselves so readily to such manipulation.

The assumption that organization matters implies a more fundamental premise that intergovernmental institutions matter. The thesis does indeed take a liberal institutionalist approach, in the belief that states can work together in situations of interdependence to further their mutual self-interest (Keohane 1989; Paterson 1996). The institutional process of regime building and development that takes place through the medium of multilateral negotiation is therefore one that matters; that is, it has transformative potential, and does not simply reproduce and reinforce existing power relations (Keohane, 1989). As Ruggie (1975:574) notes, “the process of institutionalization is transformational. It channels behaviour in one direction as opposed to all others that are theoretically and

14 empirically possible”. Such a presupposition is now widely accepted in the international relations and international politics literature, catching up with work on local-level institutions, which has always been much more comfortable with the notion that institutions can make a difference and, therefore, that the process of institution-building and its organization matters (e.g. Ostrom, 1990; Healey, 1998). The protracted debate in the early years of regime analysis over ‘do regimes matter?’ has now been largely superceded by (more interesting) questions over how regimes matter, and how they can be made to matter more effectively (Keohane, 1993; Young, 1998). The thesis is located within that line of thinking.

The thesis is also linked into broader debates over global governance, and global environmental governance in particular (e.g. Rosenau and Czempiel, 1992; Young, 1997c), which are attracting increasing interest in policy-making circles in the run-up to the World Summit on Sustainable Development (Johannesburg, September 2002) (see UNEP, 2001 a, b). Debates over global environmental governance span a range of topics, including the potential for linkages across functionally specific regimes and even the possibility of establishing a new overarching Global Environment Organization (Esty, 1994; Ulfstein, 1999). The multilateral negotiation process, and how to maximize its effectiveness, has remained on the sidelines of these debates. Its rightful place, however, is at their centre; in whatever way the current system of global environmental governance is reformed (or not), it will remain founded on multilateral negotiation as the engine of intergovernmental cooperation.

The organization of the negotiation process is one of the lesser-studied factors influencing the course of a multilateral negotiation, having enjoyed relatively little or only superficial attention in the literature as compared with more popular lines of analysis, such as the impact of power structures, interests or knowledge (e.g. Liftin, 1994; Rowlands, 1995; Zartman and Rubin, 2000b). This relative neglect can be attributed, at least in part, to the fact that academic researchers rarely have access ‘behind the scenes’ of multilateral negotiations where most decisions on organizational matters are made. In consequence, researchers will often take the organization of the negotiation process for granted. They tend not to be aware of the considerable effort that goes into organizational decision-making, of why

15 certain options are implemented and others rejected, and of the implications of these decisions. This brings us on to the question of the methodology for this thesis.

METHODOLOGY

This thesis was conducted primarily through participant observation carried out over an 18-month period (July 1996-December 1997), during which time I worked for the secretariat to the UNFCCC. The position I held, first as an intern and then as a consultant, involved providing full-time support to the Ad Hoc Group on the Berlin Mandate (AGBM), the main negotiating body for the Kyoto Protocol. I was part of a very small team and, for much of the time, I was the only person working full-time on the negotiations. My responsibilities involved the preparation of negotiating texts, drafting speaking and briefing notes for the Chairman of the AGBM, Ambassador Raul Estrada-Oyuela, and making arrangements for sessions of the AGBM and inter-sessional meetings of the Expanded Bureau. I recorded my observations over this 18-month period in a series of detailed research diaries. As a junior member of the AGBM team, I witnessed organizational decision-making on the Kyoto Protocol negotiations, with privileged access to the internal workings of the secretariat, as well as to exchanges with Chairman Estrada. This thesis seeks to make full use of my unusual position to record and analyze this often hidden facet of multilateral negotiations. A recurrent theme in the negotiation literature concerns the need to bridge the gap between negotiation theory and practice and, in this context, the need for researchers to navigate between the theoretical and empirical (Zartman and Berman, 1982; Raiffa, 1991). My thesis seeks to do precisely that.

There are dangers to the intensive immersion that I experienced during my research. Not only was I recording and analyzing organizational decision-making, I was also contributing to the recommendation and implementation of decisions. As such, I was a part of the object of my study. The main hazards that I feared in this respect were drowning in detail, over-attribution and unbalanced judgment. I was concerned that, given the amount of detailed knowledge I had acquired on the intricacies of the organization of the Kyoto Protocol negotiations, I would be

16 unable to sift through that detail to draw out the key points. Similarly, I risked over-attributing outcomes to organizational factors; as a secretariat interviewee (SECl) warned me, “we must fight against the feeling that we are at the centre of the process”. The role that I played in the decision-making process also laid me open to overly subjective judgment regarding the merits of organizational decisions that were taken, either to unjustified endorsement or criticism.

It was clear, therefore, that I needed to weigh my knowledge and understanding against that of other people. To this end, I supplemented my participant observation with a series of 29 interviews conducted during the twelfth and thirteenth sessions of the subsidiary bodies to the climate change regime (June and September, 2000). Interviewees included 20 government delegates from different regions and negotiating coalitions, all of whom had been active during the Kyoto Protocol negotiations, mostly as middle ranking officials. Five among these had since joined the secretariat and were therefore able to provide an even richer perspective, being familiar with the work of both government delegates and the secretariat. Five representatives of non-governmental organizations (NGOs) were also interviewed, from the environmental, business and academic communities, along with Dr. Robert Watson, Chairman of the Intergovernmental Panel on Climate Change (IPCC), Michael Zammit Cutajar, Executive Secretary of the UNFCCC secretariat, Richard Kinley, coordinator of the AGBM team within the UNFCCC secretariat, and Chairman Estrada himself.

The interviews were conducted on a semi-structured basis using a standard set of questions (see Appendix B), which was, where possible, distributed to interviewees in advance. The set of questions, however, was used more flexibly during the interview itself, depending on the main areas of interest of the interviewee. Except where technical problems intervened, interviews were tape- recorded and later transcribed. Most government delegates were prepared to speak only on condition of anonymity. In order to respect these wishes, each interviewee was allocated a code indicating his/her region of origin or negotiating coalition, whichever was most relevant, but without this being traceable to any particular individual. An African interviewee who had served as a delegate during

17 the Kyoto Protocol negotiations but since joined the secretariat, for example, was coded AFSECl (see Appendix A for the full set of codes).

The interviews were critical in helping to define which aspects of the organization of the negotiation process had mattered and which had not. Bringing together interviewee responses with my own observations produced a very different PhD than if I had used my observations alone. Concerns that the length of time elapsed since Kyoto might have erased useful recollections proved unfounded. On the contrary, the passage of time and the consequent soothing of political sensitivities meant that delegates were more prepared to talk now than they would have been during the negotiation process itself. At the same time, the blurring of memories was more an advantage than a hindrance, as it helped filter out the remembered important elements from the forgotten trivia. Moreover, some interviewees put forward useful insights by comparing (without prompting) the Kyoto Protocol negotiations with the post-Kyoto negotiation process leading up to COP 6 in which they were now involved.

Other primary sources were used to supplement my participant observation and the series of interviews, including original tape recordings of negotiating sessions held with the secretariat, various minutes, briefing papers, speaking notes and correspondence, also held with secretariat, and publicly available official documentation. Reports on each negotiating session by the Earth Negotiations Bulletin (ENB; see chapter 9) provided another indispensable source of independent information and analysis. In many instances, however, especially those involving behind the scenes exchanges, the only records that exist are the personal notes of my participant observation. All these sources were, of course, additional to a wide-ranging review of the theoretical and empirical literature.

Finally, in order to throw further light on the import of different organizational factors and, in particular, to help overcome the danger of unbalanced judgment, I used other negotiation processes as occasional points of comparison, including recent environmental negotiations, such as those on the Cartagena Biosafety Protocol, and other case-studies in the literature. As an interviewee (SECl) noted, “it is difficult to judge a negotiation process if you only

18 look at one”. These points of comparison were helpful in highlighting aspects of the organization of the Kyoto Protocol negotiation process that were commonplace in multilateral negotiations and others that were unique, and therefore worthy of more in-depth attention. The account in Appendix C of the organization of the post-Kyoto negotiations leading up to, and at, COP 6 part I, also provides an illuminating contrast to the case-study of the Kyoto Protocol negotiations.

THE STRUCTURE OF THE THESIS

Having introduced the research topic and outlined the methodology used, we can now turn to the structure of the thesis.

Chapter 2 is the main theoretical chapter of the thesis. It presents a conceptualization of the organization of the negotiation process and puts forward an analytical framework for assessing the effectiveness of that organization, drawing on the negotiation and regime analysis literature. In doing so, the chapter introduces the analogy of negotiation as ‘theatrical performance’ that runs through the thesis. A particularly important dimension to the chapter is the elaboration of the six effectiveness criteria that will be used to assess the effectiveness of the organization of the Kyoto Protocol negotiations, namely: efficiency; procedural equity; transparency; information accessibility; promotion of a cooperative approach; and provision of leadership and skill and energy.

Chapter 3 sets the scene for the empirical chapters. It discusses the key characteristics of climate change that render it such a malign problem, before outlining the background to the Kyoto Protocol negotiations and the main features of the climate change regime. The chapter then introduces the main negotiating coalitions, the key issues at stake and the political dynamics of the Kyoto Protocol negotiations, which together provided for a highly intricate negotiating ‘plot’.

Chapters 4 to 9 present the results of the empirical research of the thesis, each dealing with a specific organizational factor or related set of factors. Chapter 4 analyses the ‘production team’ of the negotiations, that is, the presiding officers, the bureau and the secretariat, whose actions shaped all the

19 other organizational factors considered in the thesis. Chapter 5 then takes up the ‘choreography’ of the negotiations, that is, rules for the conduct of business and decision-making. Chapter 6 examines the ‘stages’ upon which the negotiations played out, in other words, the various negotiating arenas, including formal plenaries, informal groups, consultation groups and unofficial exchanges. Chapter 7 turns to arrangements for the input of scientific information, which negotiators used to make sense of and ‘develop the negotiating plot’. Chapter 8 explores the participation of the negotiating ‘cast’, both the negotiating parties as the main ‘actors’ and the non-state ‘audience’. It looks at support provided for the participation of developing countries and economies in transition, arrangements for ministerial participation, and channels in place for the involvement of non state organizations. Chapter 9 concludes the empirical part of the thesis with a discussion of the ‘theatrical props’ that the production team wielded to advance the negotiations, namely, the use of texts and the management of time.

Chapter 10 puts forward conclusions, considering the extent to which each effectiveness criterion was met in the overall organization of the Kyoto Protocol negotiations. The chapter then raises some important cross-cutting themes, before presenting nine key lessons that could be applied to future negotiations.

Three appendices then follow. The first two are of a methodological nature. Appendix A presents the full set of codes for the 29 interviewees, while Appendix B reproduces the main questions that were used to structure the interviews. Appendix C is of a different character, sketching out developments that have taken place in the organization of the negotiation process during the post-Kyoto negotiations up to COP 6 part I. In doing so, it illuminates further the findings of the thesis. A bibliography, which includes both primary sources and academic references, concludes the thesis.

20 CHAPTER 2

THE ORGANIZATION OF THE NEGOTIATION PROCESS AND ITS EFFECTIVENESS: AN ANALYTICAL FRAMEWORK

“Having started in a very civilized fashion with songs about the future from children’s choirs ... the meeting finally came very close to breakdown. It finished at four o’clock in the morning, one day late, with most of the delegates having abandoned their chairs ... to gather on the front podium and shout at each other” (Brenton, 1994:183).

INTRODUCTION

The aim of this chapter is to conceptualize the subject matter of this thesis, that is, the organization of the negotiation process - specifically, the organization of global environmental negotiations - and to put forward an analytical framework for assessing the effectiveness of that organization to be applied to the case-study of the Kyoto Protocol negotiations. The organization of the negotiation process is a construct that overlaps both negotiation and regime analysis, and these two streams of literature thus provide the analytical foundations for the chapter. However, the specific topic of the organization of the negotiation process has rarely been the focus of academic study in its own right in either stream. The task of this chapter is not, therefore, to explain and articulate an existing theory. Instead, it must construct a conceptualization of the organization of the negotiation process, together with an analytical framework for assessing its effectiveness, by weaving together a number of relevant analytical threads from both the negotiation and regime literatures.

The chapter focuses first on negotiations, outlining specific characteristics of multilateral and global negotiations before examining the nature of global environmental problems. It then considers the concept of regimes, and explores the iterative relationship between regimes and negotiations. The discussion then introduces the notion of the organization of the negotiation process, seeking to define and conceptualize this term. Finally, the chapter considers how to

21 conceptualize the effectiveness of the organization of the negotiation process and how this could be assessed, putting forward six effectiveness criteria.

NEGOTIATIONS

The negotiation process A negotiation can be understood as “a process of mutual persuasion and adjustment which aims at combining non-identical actor preferences into a single joint decision” (Rittberger, 1983:170). Understood in this way, negotiations are a key mechanism for decision-making at every level of social interaction and among a range of social actors (Fisher et al., 1992). Wives and husbands negotiate on their holiday destination, legislators negotiate over whose bill to support, governments negotiate with each other on financial aid agreements (Pruitt, 1981). For a negotiation to take place, three key conditions must be fulfilled. Firstly, two or more actors must be in a situation of interdependence, that is, they must share an area of common interest where the actions of one will affect the other(s) (Lax and Sebenius, 1986). Secondly, their interdependence must be characterized by discord, that is, with the actors preferring different courses of action. These two conditions are fundamental; “without common interest, there is nothing to negotiate for, without conflict nothing to negotiate about” (Iklé, 1964:2). Thirdly, the actors involved must (implicitly or explicitly) eschew other means of resolving their case of discordant interdependence, notably, the use of overt force or having recourse to an independent adjudicator (Pruitt, 1981; Kremenyuk, 1991b).

All negotiations follow a basically similar process (Faure and Rubin, 1993; Lewicki et al., 1999). At the start of the negotiation, negotiators will typically make proposals expressing divergent preferences on all, or a sub-set, of issues under negotiation. The divergent preferences will tend to reflect a mix of both tangible perceived interests and intangible values and principles (Lewicki et al., 1999), of which the latter are likely to be particularly stable and less amenable to change (Dupont and Faure, 1991). During the negotiation itself, a negotiator will seek to induce others to adjust their preferences in line with his/her own, while also reviewing and revising his/her preferences according to the anticipated or actual adjustments of others (Spector, 1994; Lewicki et al., 1999). The

22 negotiation will end when negotiators conclude, often in the face of a deadline, that they have adjusted their preferences, and others have adjusted theirs, as much as they can. If, at this stage, the compromise solution on the table is preferable to what the negotiators could obtain without an agreement then substantive agreement is likely to be reached (Pruitt, 1981; Fisher et ah, 1992).

The process of negotiation typically encompasses a variety of forms of contact, exchanges and conversation (Kaufmann, 1988; Albin, 2001), among which three main negotiating modes can be identified, while recognizing the fuzzy boundaries between these. The first can be termed passive persuasion, often referred to pejoratively as ‘posturing’, where negotiators simply articulate their preferences as monologues, without engaging with the preferences of others, except perhaps to criticize these (Pruitt, 1981; Benedick, 1993). The second is debating, where a negotiator actively seeks to convince others of the merits of his/her preferences relative to others through argumentation, including by explaining the rationale behind his/her preferences and seeking similar explanations from other negotiators; debating is thus a more engaged conversational form than passive persuasion (Walcott et ah, 1977). The third is bargaining’, that is, the process whereby negotiators explicitly engage with each other’s positions to devise solutions that can bring them to agreement, including such techniques as mutual compromises, trade-offs, linkages, packaging, side- payments, and adding and subtracting issues (Iklé, 1964; Sjostedt et ah, 1994a; Zartman, 1994b).

While the literature rarely distinguishes explicitly between the negotiating modes outlined above, it does make a distinction between cooperative and competitive behaviour. In cooperative behaviour, negotiators engage in so-called joint problem-solving or integrative bargaining to collaboratively explore solutions that achieve an integrative or ‘win-win’ solution, in other words, joint gains for all. In competitive behaviour, however, negotiators engage in so-called individualistic, distributive or positional bargaining, seeking to extract maximum gains from each other through a more confrontational, ‘win-lose’ approach (Pruitt, 1981; Sergeev, 1991; Fisher et ah, 1992; Young, 1994). This distinction is typically applied in the literature to the bargaining negotiating mode. However, it

23 is also relevant to passive persuasion and debating, both of which may be carried out in a more or less cooperative or competitive manner. Attacking the positions of others when engaged in passive persuasion, for example, would be a competitive approach to that negotiating mode. The important point to note at this juncture is that the thesis will use the term ‘negotiation’ to refer generically to all the negotiating modes described above, that is, cooperative or competitive passive persuasion, debating or bargaining.

Multilateral negotiations While all negotiations share the same fundamentals (Faure and Rubin, 1993), specific negotiation types merit separate study (Kremenyuk and Lang, 1993). These are usually differentiated by the type of negotiating parties (e.g. individuals, labour organizations, governments) and their number. In this respect, the particular negotiation type upon which this thesis focuses is aglobal multilateral negotiation, that is, where the main negotiating parties are sovereign states^ and the negotiation involves many such states.

States are complex negotiating parties. As individual negotiators, representatives of states are accountable to their domestic legislatures and are, therefore, agents rather than principals. This is not unusual; most negotiators, at any level, negotiate on behalf of a constituency, for example, a trade union, not themselves directly (Rubin, 1991). However, in negotiations among states, the relationship between the individual negotiator and his/her constituency is particularly complex. States are not monolithic, and different government departments, as well as individuals within departments, are likely to have varying views over the national preferences to be taken to the multilateral arena, and then over whether, when and how to adjust those preferences as negotiations progress (Raiffa, 1991; Benedick, 1993). Differences between government departments within a state are likely to be reflected in (usually sharper) differences between non-state organizations who will lobby the state - often in different directions - to

^ The thesis focuses on states as these are the main actors in multilateral negotiations and the formal members of regimes (Sands, 1995; Young, 1997). However, it does so without losing sight of the increasingly important role played by non-state organizations in the international arena, including in multilateral negotiations (Spiro, 1994; Wapner, 1995). The importance of such organizations is taken up throughout the thesis.

24 take a particular stance at the multilateral negotiation (Susskind, 1994). Government negotiators must thus reach agreement at the domestic level to define their preferences before they can negotiate in the multilateral arena. Putnam (1988:434) has conceptualized this as a “two level game”:

“...at the national level, domestic groups pursue their interests by pressuring the government to adopt favourable policies, and politicians seek power by constructing coalitions among those groups. At the international level, national governments seek to maximize their own ability to satisfy domestic pressures, while minimizing the adverse consequences of foreign developments”.

Another distinguishing feature of multilateral negotiations is that they are inherently repeated games. That is, given the degree of complex interdependence (as discussed below) among them, “each government knows that it will always be engaged in negotiation” (Iklé, 1964:90) on a whole variety of topics within the broad multilateral arena for the foreseeable future. The dynamics of the specific multilateral negotiation at hand, therefore, will be affected by, and in turn impact on, the wider network of relationships and interactions between states beyond the particular problem under negotiation.

Multilateral negotiations, by definition, involve many negotiators (Sjostedt et al., 1994a). The number of negotiators is seen as an important variable in the negotiation literature, with the key distinction being made between two-party (bilateral) and more than two-party (multilateral) negotiations (Zartman, 1994a). According to Raiffa (1982:251), “there is a world of difference between two-party and many-party negotiations”. Among multilateral negotiations, Midgaard and Underdal (1977) identify three different types: up to 7 parties (small) 7-20 parties (intermediate) and 20+ parties (large). If Midgaard and Underdal had been writing 20 years later when such negotiations had become much more common, they would probably have added a fourth category, that is, multilateral negotiations whose potential scope includes all or almost all existing states. This type of multilateral negotiation, which is also known in the literature as “conference diplomacy” (Kaufmann, 1988, 1989; Rittberger, 1983), can be usefully termed a global negotiation (Kremenyuk and Lang, 1993).

25 Multilateral negotiations, and particularly global negotiations, are typically characterized by complexity. Complexity, in turn, raises transaction costs, that is, the costs incurred to reach agreement in physical and financial resources, human effort and time (Sjostedt et al., 1994a; Zartman, 1994b)\ A greater number of negotiators generates logistical difficulties - there are simply more parties wishing to express their views, verbally or in writing - and implies a wider potential range of preferences that must be adjusted and accommodated (Lewicki et al., 1999). The heterogeneity of states, in terms of their political, socio-economic and geographical circumstances, increases this potential range (Breitmeier, 1997). Moreover, along with the sheer number of parties, interaction in a global negotiation takes place among a wide variety of cultures, language groups and negotiating styles'^. As Kaufmann (1988:173) notes, “the mere multiplication of the number of recipients of ‘messages’ renders the establishment of effective communication much more difficult in conference diplomacy than in traditional bilateral diplomacy”. While the structure of a bilateral negotiation is straightforward, with negotiators clearly aware of who their ‘opponent’ is and to whom they must target their negotiating strategies, there is no such inherent structure to a multilateral negotiation (Zartman, 1994b). Negotiators must seek to induce many counterparts with varying points of view to adjust their preferences, decide to whom they should concede what, and assess what the knock-on effects that concession might have on the preferences of the other counterparts, as well as on support from their domestic constituencies.

And finally, although multilateral negotiations take place among states, the negotiators that represent those states are still human beings, and the personalities of those human beings, along with the interactions between them, can be as important as it can in a bilateral negotiation between employee and boss (see Iklé, 1964). Lang (1991:389) agrees that “personalities determine the course of

^ The term ‘transaction costs’ used here is derived from the concept in economics, which draws attention to the costs (e.g. in obtaining information and countering strategic behaviour) that are involved in conducting economic transactions, and which would be absent in a perfectly free market peopled by wholly rational actors (see Coase, 1937; North, 1990). The term is also used in the negotiation literature (e.g. Raiffa, 1982; Underdal et al., 1998), although rarely defined. Many analysts also refer simply to ‘costs’ to convey the same idea (e.g. Fisher et al., 1992).

On the importance of culture in negotiation, see Faure (1999) and Zartman (1999).

26 negotiations. These personalities are not abstract beings: They suffer from fatigue; they may lose their temper; they may feel frustrated; they take pride in accomplishing a specific, arduous task”. Many accounts of multilateral negotiations point to the importance of individuals, for example, in the provision of leadership and the formation of creative transnational alliances across states (Keohane and Nye, 1977/89; Keohane, 1984; Rowlands, 1995; Bartos, 1996).

Multilateral negotiations in the literature Although “states have negotiated since the beginning of history” (Iklé, 1964:ix), analytical literature on multilateral negotiations is still at an early stage of development (Parson, 1997). The origins of literature on this topic lie, on the one hand, in prescriptive manuals on diplomatic practice (e.g. Satow, 1917/57) and, on the other, in descriptive accounts and memoirs of particular negotiations (see Nicolson, 1939/63). The literature on multilateral negotiation thus emerged from a largely anecdotal, ‘story telling’ crucible. The main work that propelled intergovernmental negotiations (both bilateral and multilateral) into a more systematic, analytical field was Iklé’s How Nations Negotiate (1964), which pioneered a multidisciplinary approach by drawing on insights from game theory and psychology, as well as Iklé’s own field, political science. Iklé in turn acknowledged a debt to Schelling’s (1960) Strategy of Conflict, which used an application of game theory to develop negotiation analysis. Since then, an important body of multidisciplinary literature has emerged on multilateral negotiations, including global multilateral negotiations, boosted significantly by the work of the Processes of International Negotiations network, based at the International Institute for Applied Systems Analysis (e.g. Mautner Markhof, 1989; Kremenyuk, 1991a; Zartman, 1994a; Zartman and Rubin, 2000a).

Interest in the study of multilateral negotiations in general, and global negotiations in particular, has risen in tandem with the increasing number and frequency of such negotiations in the post-war period (Franck, 1995; Albin, 2001). This increase can be attributed to three broad trends. Firstly, the greater interconnectedness between states in multiple spheres - economic, social, cultural, environmental, financial - has led to a proliferation of situations of interdependence among those states and their societies (Young, 1994), rendering

27 Keohane and Nye’s (1977/89) term “complex interdependence” even more salient now than when it was coined. The more interdependent issues there are, the more scope there is for negotiation (Kremenyuk, 1991b). Interdependence is not, however, always a symmetrical phenomenon, with unequal power relations ensuring that some states benefit from interdependence at the expense of others (Keohane and Nye, 1977/89).

Secondly, the sheer number of independent nation states in the international arena has increased dramatically since 1945 (Pruitt, 1981; Zartman and Berman, 1982), thanks to the independence of most former colonies and, more recently, to the break-up of the former Soviet Union. Between 1956 and 1994, for example, the number of UN member states more than doubled from 80 to 185 (United Nations, 1998). The principle of sovereign equality, enshrined within the UN Charter, has placed all nation states on a formal de jure, if not de facto, equal footing (Zartman and Berman, 1982; Sands, 1995). The resulting increase in the number of potential negotiating partners again extends the likely incidence of negotiation.

Thirdly, the relevance of military force as a viable means for the conduct of international relations has waned in the face of the first two trends of complex interdependence and the greater number of sovereign, de jure equal states, as well as the threat posed by nuclear weapons (E.B. Haas, 1980; Donnelly, 1986; Kremenyuk, 1991b). In the absence of any higher authority above the sovereign state to allocate resources or arbitrate in disputes, negotiation has become the main means of managing interdependence (Kahn, 1991; Albin, 2001). The UN as an organization has also contributed significantly to the rise of global negotiations by serving as a forum for the conduct of negotiations open to all its member states on a wide range of economic, social and cultural issues (Zartman and Berman, 1982).

28 Despite the prevalence of multilateral negotiations, the analytical literature is still focused on two-party negotiations (Pruitt, 1981; Zartman, 1994b), with the literature on multilateral negotiations dominated by empirical case-studies (e.g. Kaufmann, 1989). Where analytical studies of multilateral negotiations are conducted, these often reduce, implicitly or explicitly, the multilateral situation to a bilateral one (e.g. Sjostedt, 2000). This theoretical bypassing of multilateral negotiations is partly due to their sheer complexity, which makes them more difficult to theorize and model (Druckman, 1977; Pruitt, 1981), with the result that, according to Dupont and Faure (1991:57), “very little is known about multilateral negotiations. Dealing with situations with more than three parties becomes mostly an art”.

Box 2.1: Negotiation as performance

“Negotiation ... is like a theatre, we have to manage the performance” (ASSECl).

“It’s like a ballet...” (SECl).

“It’s like a show ... the stars have to be ready for their debut on stage...” (AOACl).

“A drama of international diplomacy” (Mintzer and Leonard, 1994b:23)

“There is undoubtedly an element of theatrics in most UN global conferences” (Fomerand, 1996:372)

Building on this theme of negotiation as ‘art’, a fitting metaphor for understanding the negotiation process is that of a ‘theatrical performance’. Indeed, several interviewees referred to the Kyoto Protocol negotiations in this way and the analogy of negotiation as ‘drama’ or ‘performance’ is prevalent in the literature (see box 2.1; also Faure and Rubin, 1993; Howard, 1996; McConnell, 1996). The main actors (the negotiating parties) play out their roles to an audience (non-state organizations and the public) shouting from the sidelines. The broad outline of the plot is set in advance and many of the lines that the actors deliver are scripted. But, as the performance unfolds, the actors often start to move out of their assigned roles, to improvise around their scripts, adjust their performance according to the audience’s reaction, move into or out of the spotlight, embroider the plot in unpredictable ways; until the performance reaches

29 its (usually dramatic) denouement and the curtain comes down. While global negotiations are frequently seen as dry, bureaucratic events, the reality can be very different. This thesis will seek to make use of the metaphor of ‘negotiation as performance’ as a means of communicating the drama that characterized the Kyoto Protocol negotiations.

THE GLOBAL ENVIRONMENTAL AGENDA

Over the past three decades, an important boost to the number of multilateral and global negotiations has come from the emergence of large-scale interdependence problems relating to the environment (Brenton, 1994). Over 300 multilateral environmental agreements have been concluded since 1972, although 70% of these have been regional in scope (UNEP, 2001a). The rise of the ‘global environmental agenda’ has been amply documented elsewhere (e.g. Porter and Brown, 1991; Thomas, 1992) and little would be served by repeating it here. However, a summary of three historical milestones, without whose mention any study on the global environment would be incomplete, is given in box 2.2.

Environmental issues pose inherent problems of interdependence; ecosystems do not organize themselves according to national boundaries and damage to them likewise does not respect those boundaries (List and Rittberger, 1992). Young (1994, 1997) identifies three main environmental problem types, depending on the degree of interdependence involved. The most interdependent problems are those of natural resources known as the international commons or, more precisely as they ignore national boundaries, the global commons. These are “physical or biological systems that lie wholly or largely outside the jurisdiction of any individual member of international society but are of interest to two or more of them” (Young, 1997b:8). The climate system, which is the concern of this thesis, falls into this category, as does the stratospheric ozone layer. The other problem types identified by Young are shared natural resources, where ecosystems extend into or across the jurisdictions of two or more states (e.g. water resources); and transboundary externalities, where activities occurring wholly within the jurisdiction of one state nevertheless produce (normally unintended) consequences that affect the welfare of those located in other jurisdictions (e.g. acid rain.

30 persistent organic pollutants, biodiversity loss). Although the thesis is principally concerned with the global commons, it is also relevant to transboundary externalities that have been perceived as being of global concern^, and have therefore been addressed through global negotiations (e.g. forest resources, biodiversity, persistent organic pollutants).

Box 2.2: The rise of the global environmental agenda

1972: UN Conference on the Human Environment • First time problems of the ‘global’ environment were discussed in an intergovernmental forum;

• Adopted the Stockholm Declaration on the Human Environment, including 26 principles to guide intergovernmental action on the environment; and the Action Plan for the Human Environment with 109 recommendations ;

• Established the UN Environment Programme (UNEP)

1987: Report of the World Commission on Environment and Development • Defined “sustainable development” as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs” (WCED, 1987:43).

1992: UN Conference on Environment and Development (UNCED) • Adopted Agenda 21, “the action plan for achieving sustainable development” (Grubb et al., 1993:17), and the Rio Declaration on Environment and Development',

• UNFCCC and Convention on Biological Diversity (CBD) opened for signature;

• Established the Commission on Sustainable Development',

• Adopted the Forest Principles', launched negotiations on a desertification convention', convened conferences on the sustainable development of small island states and on straddling and highly migratory fish stocks.

Sources: WCED, 1987; McCormick, 1989; Birnie, 1993; Grubb et al., 1993; Sands, 1995.

The designation of a particular environmental problem as ‘global’ can itself be seen as a political act, justifying the intervention of global institutional structures in the management of local resources (e.g. see chapters in Sachs, 1993).

31 Referring specifically to problems of the global commons, the natural resources in question are characterised by non-excludability and non- subtractability: no state can be excluded from the benefits of the resource (e.g. a stable climate, protection from ultraviolet rays supplied by the ozone layer), while its use by one state will not reduce the benefit derived by another (Ostrom et al., 1993). However, the global commons is not indestructible. The stable climate, for example, can be disrupted by rising emissions of greenhouse gases (GHGs), while the ozone layer can be destroyed by ozone depleting substances. The degradation of the global commons raises problems of collective action, of which, climate change is a classic example (Thomas, 1992; Rowlands, 1995). That is, the combined rational actions of individual states (emitting GHGs) may yield optimal benefit for each individual state (such as maximising energy use), but also lead to sub-optimal outcomes for the collective of all states (dangerous climate change) (Young, 1994; Young and Von Moltke, 1994). Whether or not a state will be affected by climate change depends not only on its own actions (emitting GHGs), but also on the actions of others, because the geographical source of GHGs is irrelevant to their eventual impact on the climate system. The corollary is that no single state can solve problems of collective action by its remedial actions alone, nor is it necessarily in that state’s interests to do so (Sands, 1995). If a state, for example, even a major GHG emitter, sought to unilaterally reduce its emissions without similar action on the part of other emitters, this would not solve the problem. It might also place that state at a competitive disadvantage relative to others not implementing emission reduction policies. The inactive countries would then be ‘free riding’ on the pro-active state’s actions; that is, they may benefit from some mitigation of climate change, but without bearing its costs.

Collective action problems where the choices of actors, while individually rational, may lead to a collective sub-optimal outcome, are not the preserve of the international sphere. This phenomenon has also been explored by economists and sociologists at the local level, for example, where there is competition within a community for the use of a ‘common pool resource’ such as agricultural land or a river. Indeed, the most evocative illustration of the problem of collective action is the ‘tragedy of the commons’ metaphor expounded by Hardin (1968), whereby a local resource (in his case, a pasture where cattle graze) is doomed to destruction

32 as cattle herders seek to maximize their individual gain by increasing the number of their own cattle grazing on the pasture, thus leading to its depletion and therefore a collective loss for all cattle herders. The problem of collective action is often formalized in game theory in terms of the ‘prisoner’s dilemma game’ (e.g. Axelrod, 1984).

The theoretical literature suggests that there are three possible ways out of collective action problems arising from the global commons or local common pool resources (Young, 1994). The first is privatization, whereby each user would be granted ownership over a part of the resource in question, and thus have an incentive to conserve and maintain that particular part. The second is the imposition of control over the users of the resource by an authority to prevent over-exploitation. Both these options, however, imply the intervention of an outside force, either to impose order or to grant property rights. The third, alternative, way, belying Hardin’s prediction of ‘tragedy’ in the absence of an authoritarian force, is the voluntary establishment of institutions by the users of the resource, whereby sets of rules and procedures are established to govern its use (see Ostrom, 1990).

At the global level, privatization and the imposition of control are impracticable, given the absence of any authority higher than the state. While the possibility of establishing some form of ‘world government’ is a recurring theme on the backbumer of international politics, the persistence of state sovereignty, along with doubts about the benefits of such a ‘global leviathan’, mean that it is not an option for the foreseeable future (List and Rittberger, 1992; P. Haas et al., 1993; Mayer et al., 1993). This brings us to the third alternative, namely, the establishment of institutions, which states may agree upon as a means of coordinating their actions to reap the benefits, and minimize the losses, arising from their interdependence (Ostrom, 1990; Ostrom et al, 1993; Young, 1994).

States have indeed responded to global environmental problems by launching “rule-making” multilateral negotiations aimed at establishing institutional arrangements to govern their actions in particular issue areas (Sjostedt et al., 1994a; Zartman, 1994b). This response has forged an emerging system of global

33 environmental governance based on a growing number of functionally specific institutions, rather than a single, overarching structure (Hurrell and Kingsbury, 1992; Young, 1997c). The individual institutions that comprise this ‘patchwork’ system are known in the international relations literature as regimes (Krasner, 1983; Keohane 1984). We now turn to examine the literature on this topic.

REGIMES

The first wave of literature on regimes, located within the liberal- institutionalist school of international relations^, dates back to the mid-1970s (e.g. Ruggie, 1975; Morse, 1977), and focused on describing, analysing and explaining the proliferation of multilateral agreements and formal organizations that emerged in the post-war era, such as the trade regime under the General Agreement on Tariffs and Trade (Kratochwil and Ruggie, 1986). Despite scepticism from scholars of a more realist^ leaning that regimes would be just a passing “fad” (Strange, 1983:337), interest in regime analysis has since increased and spread beyond its US cradle (see Rittberger, 1993) to spawn a growing and maturing body of literature. The rising number of multilateral treaties concluded on environmental issues has gradually shifted the locus of regime analysis from economic to environmental cooperation, with a strong body of research emerging on specifically environmental regimes (e.g. P. Haas et al., 1993; Jacobson and Weiss, 1998; Victor et al., 1998).

Despite the formation of a broad consensus around the definition of a regime put forward by Krasner (1983:2), that is, “sets of implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given area of international relations”, the precise question ‘what is a regime?’ has continued to exercise the minds of international relations researchers (Stokke, 1997). Keohane’s (1989) distinction between regimes, conventions and organizations is helpful in this respect. He views conventions (with a lower case ‘c’) as sets of informal practices, for example, the tradition of diplomatic immunity before this was codified into a legal treaty, while, at the other end of the

^ The concept of a regime is, however, said to originate in international law (E.B. Haas, 1983). ^ For an analysis of how different schools of thought within international relations view environmental issues, see Laferrière and Stoett (1999).

34 spectrum, he sees international organizations as purposive, bureaucratic entities, such as the UN Environment Programme (UNEP). Regimes fall somewhere in the middle, as institutional arrangements with explicit rules agreed by governments, for example, through a legal treaty on a specific issue. Ruggie (1975) and Young (1994) put forward a similar classification.

Even within this classification, regimes may be more or less formally articulated, and may or may not be accompanied by explicit organizational arrangements (Young, 1980, 1983)1 This thesis is specifically concerned with more formal regimes that rest on written treaties. This reflects the trend in the multilateral arena, where regimes to address global environmental problems have typically been formalized in treaties (Stokke, 1997; Young, 1997a). Such formal regimes, however, are typically accompanied, and indeed complemented by, informal networks of exchanges. As Young (1998:14) states, “every successful regime gives rise to an encompassing social practice in which the members themselves become enmeshed in an increasingly complex web of interactive relationships and in which a variety of actors with no formal roles in the regime emerge as players”.

Deconstructing the term ‘regime’ even further. Young (1994) suggests that a regime usually encompasses both a substantive core and a procedural component. Depending on its degree of formality, the substantive core will typically include an overall objective for the regime, principles to be followed in achieving this objective, commitments to be implemented by parties at the national level, and also reporting requirements. It may also define mechanisms to review these substantive provisions. In terms of its procedural component, a regime will usually define rules for the conduct of business, decision-making and participation of negotiating parties and non-state organizations, along with institutional arrangements, such as a decision-making body, a secretariat, and one or more

* Indeed, Keohane notes that the distinction between the three categories is not always clear. Negotiated agreements may combine formal rules with informal conventions, while organizations are almost universally embedded in regimes. This lack of conceptual clarity is reflected in the literature, where the terms ‘regime’, ‘institution’ and, to a lesser extent, ‘organization’, are often used almost interchangeably to refer to cooperative arrangements among states.

35 specialist subsidiary bodies, which will review, promote the implementation of, and further develop, the substantive core (see Churchill and Ulstein, 2001). Regimes thus conflate features of both multilateral treaties and international organizations: “like treaties, they comprise a specific normative framework of prescriptions...within a limited issue-area” and “like international organizations, they provide a permanent mechanism for changing these normative prescriptions” (Gehring, 1990:54-55).

Regimes rest on a delicate balance between state sovereignty and global interests (Werksman, 1996). As noted above, regimes have emerged as a means of addressing problems of global interdependence “in the absence of any powerful and unitary international legislature” (Werksman, 1996:56), and in the face of unwillingness on the part of states to yield their sovereignty to such a global authority, even if it were practicable to establish one^ However, by joining a regime (usually through the ratification of the treaty upon which it is based), a state consents to its substantive obligations and procedural rules and cedes some authority to its decision-making bodies (Werksman, 1996). At the same time, the state exposes itself to pressure from other parties to the regime, and often its own domestic constituencies, to conform to the regime’s requirements. Nevertheless, the state formally safeguards its sovereignty by its right to participate in decision making, lodge objections if necessary and, in extremis, to withdraw from the regime. State sovereignty and global authority are thus intertwined in complex ways within regimes

^ An intergovernmental conference in The Hague in March 1989 famously called for “new institutional authority” to combat climate change (see Paterson, 1996:36-37). As Bodansky reports, “its radical proposal” was “quickly forgotten” (1993:466).

Sovereignty is thus shown to be a fuzzy concept in the ‘real world’; indeed, the very existence of global interdependence problems problematizes the notion of sovereignty. For a fuller discussion of sovereignty in the context of global environmental issues, see Paterson (1997) and Litfin (1998).

36 Regime development Regimes are constructed through negotiations among states" (E.B. Haas, 1980). Once established, they are rarely static (Kratochwil and Ruggie, 1986; Sjostedt et al., 1994a). On the contrary, most regimes are continuously evolving through decisions by their state parties (Lang, 1996; Young, 1997b; see also Gehring [1990] on the concept of “dynamic regimes”). Such evolution may include, for example, elaborating protocols to a framework convention (see Susskind, 1994; Werksman, 1999), or less momentous, but still significant decisions, such as the preparation of guidelines for national reporting. Theregime development process typically takes place again through the mechanism of multilateral negotiation, based on the rules and institutional arrangements set forth in the procedural component of the regime, thus connecting regimes and negotiations in an iterative relationship. In many cases, a continuous negotiation process emerges within a regime (Sjostedt et al., 1994a). Indeed, as Keohane (1989:111) notes, an important function performed by regimes is precisely to provide an efficient framework for negotiations so that, as he puts it, regimes become “devices to make agreements possible”. Regimes and negotiations are therefore intimately related. Both are concerned with cooperation among states to address problems of interdependence but, while regimes draw attention predominantly to the structure of cooperation, negotiations are mostly concerned with the process that unfolds based on that structure. Our metaphor can help explicate this further. Where negotiation is ‘performance’, a regime can be seen as analogous to the ‘theatre’ within which the actors perform.

THE ORGANIZATION OF THE NEGOTIATION PROCESS

The analytical focus of this thesis is the organization of the negotiation process. This is a neglected area of research (Underdal, 1991b; Lang, 1994). While some analysts have discussed the importance of specific organizational elements in a negotiation, such as a deadline (e.g. Raiffa, 1982), a single negotiating text (e.g. Susskind, 1994) or the use of informal forums (e.g. Fisher et al., 1992) the organization of the negotiation process as a whole has rarely been

" Young (1997) notes that not all regimes are negotiated. Some may be spontaneous, where long standing informal rights and rules are codified into explicit agreements; others may be imposed by a single powerful actor. Negotiated regimes, however, are by far the most common.

37 examined in any depth as an analytical category in its own right. The great importance attached to the organization of the negotiation process in the real world, as evidenced by the frequent invoking of organizational factors in empirical case-studies (e.g. Evensen, 1989; Sizoo and Jurrjens, 1989; Szell, 1993; Mintzer and Leonard, 1994a; McConnell, 1996'^), has thus not been reflected in theoretical development in the regime and negotiation literatures. The three main exceptions in this respect are Kaufmann (1988), Susskind (1994) and Wettestad (1999). However, while Kaufmann deals with a broad suite of organizational factors in considerable detail, he draws few generalizing conclusions. In contrast, Susskind and Wettestad do derive general conclusions, but address only a small number of organizational factors'^

It is important to note that the organization of the negotiation process is far more important for multilateral negotiations - and especially global negotiations - than for any other type. Ilich (1999), for example, characterizes two-party negotiations as a free-for-all. Given their complexity, however, it is clear that global multilateral negotiations could not function without organizing rules and institutional arrangements (Midgaard and Underdal, 1977; Raiffa, 1982; Kolb and Faure, 1994).

The study of the organization of the negotiation process can yield great rewards for those seeking to improve the conduct of negotiations as organizational elements tend to be open to collective policy manipulation. Whereas it is not easy to manipulate, in the short-term, the salience of an issue, the distribution of power or the strength of the world economy, in order to improve the chances of reaching agreement in a negotiation, organizational elements “can, in principle, be more easily designed and changed deliberately in order to enhance - or impede - effectiveness” (Wettestad, 1999:2). Given that organizational elements are

These empirical case-studies refer to negotiations on, respectively, the Law of the Sea; the Madrid Conference on Security and Cooperation in Europe; the Montreal Protocol on Substances that Deplete the Ozone Layer; the UNFCCC; and the CBD. The international law literature has paid more attention to organizational factors, given the centrality of rules and procedures in that field. This has generated some useful overlaps with the regime and negotiation literature, and hence helpful insights for this thesis (e.g. Schermers and Blokkers, 1995). On the overlaps between international law and regime analysis, see Slaughter et al. (1998).

38 particularly important for multilateral negotiations, and given the resources being spent on a growing number of global multilateral negotiations, the lack of sustained research on this topic appears to be an important gap in the literature.

Conceptualizing the organization of the negotiation process Before proceeding further, we need to pin down exactly what is meant by the organization of the negotiation process. It is important to establish at the outset that it does not simply mean the actions of an organization such as UNEP (e.g.Breitmeier, 1997). Rather, it refers to the aggregation of decisions taken by those involved in a negotiation - who may or may not include organizations - on how to organize the negotiation process. The organization of the negotiation process is conceptually akin to the procedural component of a regime. Both are concerned with shaping the conduct of the negotiation process. However, while the procedural component consists ofstructural design features of a regime, the organization of the negotiation process goes beyond this to also encompass the act of organization itself including how the procedural component is interpreted and implemented. The concept of the organization of the negotiation process thus incorporates the procedural component of the regime, but brings in an added dimension of dynamism and agency. To use our theatrical analogy, the organization of the negotiation process can be understood as the ‘production ’ of the theatrical performance.

The organizational elements At the most basic level, a negotiation will be organized according to the procedural component of its regime*^ As noted above, this will typically include procedural rules for the conduct of business and decision-making, which can be understood as part of the ‘choreography’ of the theatrical performance, as well as rules for the participation of negotiating parties and non-state organizations, in other words, the ‘cast’ of the theatrical performance. The procedural component will also encompass institutional arrangements, such as decision-making, advisory and negotiating arenas, which can be seen as the ‘stages’ on which the

In the case of a regime formation negotiation where there is no existing regime, a similar function will typically be performed by a convening organization, such as UNEP or the UN General Assembly. As Keohane (1984:79) notes, “regimes rarely emerge from chaos”.

39 performance plays out. The nature of these organizational elements will usually be inscribed in legal texts, typically the founding treaty of a regime, rules of procedure and subsequent formal decisions, such as the mandate launching the negotiation. As such, they are relatively stable elements, the products of formal decision-making by parties to the regime in question.

Almost invariably, however, the procedural rules and institutional arrangements established by the procedural component of a regime will not be comprehensive and will be open to interpretation. This is where the dynamism and agency of the organization of the negotiation process comes in. Specific organizational elements are likely to be improvised as the negotiation progresses through “informal understandings and unwritten agreements”, to interpret ambiguities in the procedural component and fill gaps where it is silent (Yamin, 1999:5; see also Werksman, 1999). Some of these improvised procedures may be well-established and regularly used, while others may emerge on a more ad hoc basis, and may or may not be repeated in future negotiations. Such improvised procedures may include, for example, use of small consultation groups as negotiating arenas, along with arrangements for the input of scientific information, which, to use our theatrical metaphor, can be understood as mechanisms for ‘developing the negotiating plot’. A further layer of organizational elements includes specific organizational tools, which can be wielded to advance the negotiation in a particular way. These can be understood as ‘theatrical props’ for the negotiations, and include the use of texts to structure the negotiation process and the management of time.

The above discussion begs the question, ‘who organizes?’ The organization of the negotiation process is indeed a conscious act. The organizational elements within the procedural component of a regime are themselves the products of decisions taken by the negotiating parties, the main actors in the performance. Once established, they form a relatively stable, structural element to the organization of the negotiation process. However, as products of decisions, they can always be changed, with greater or lesser ease, by subsequent decisions. The improvisation of organizational elements - interpreting ambiguities and filling in gaps - and the wielding of organizational tools as theatrical props are also subject

40 to the consent of the negotiating parties. However, the key individuals involved in the day-to-day organization of a negotiation will typically be its presiding officers, bureau and/or secretariat, to whom the negotiating parties will usually delegate organizational decision-making (Antrim, 1994). Applying our theatre analogy, these individuals can thus be understood as the ‘production team’ of the negotiations; the presiding officers can be seen as the ‘producers’ of the performance, the bureau as the ‘production assistants’ and the secretariat as the ‘stage managers’.

The organization of the negotiation process is not a neutral or purely technical act. How a negotiation is organized can influence not only the effectiveness of the process (as this thesis discusses), but also the relative advantages of individual parties in the negotiations. This is reflected in the notion of “organizationally dependent capabilities” (Keohane and Nye, 1977/89; Keohane, 1993), which draws attention to the fact that the particular structure of regimes and, by extension, the organization of the negotiation process, can bring relative advantage to some actors and disadvantage to others, for example, through its decision-making procedures. The literature suggests, for example, that economically and politically weaker parties prefer to negotiate within formal organizational structures, which tend to grant them a status of equality with more powerful parties that they would not otherwise enjoy (Zartman and Berman, 1982; Bars ton, 1983; IPCC, 1996c). This is an interesting observation, as it goes against the more realist approach to regimes, which views these as instruments of existing power relations enabling powerful states to translate their preferences into intergovernmental governance structures (e.g. Strange, 1983). Notwithstanding its typical delegation to the production team, certain aspects of the organization of the negotiation process can become hotly debated, as parties promote organizational forms that advance their interests or use organizational issues as an outlet for national positions and grievances (Underdal, 1983; Werksman, 1999).

To summarize, as conceptualized by this thesis, the organization of the negotiation process consists of several layers of more or less formal, more or less stable, sets of procedural rules, institutional arrangements and organizational tools, which are actively organized by parties, but especially by the presiding

41 officers, bureau and/or secretariat. The specific organizational elements to be considered by this thesis, which are framed in terms of our theatrical analogy, are as follows:

The production team: The presiding officers, bureau and secretariat (chapter 4);

The choreography: Rules for the conduct of business and decision-making (chapter 5);

The stage: Negotiating arenas, formal and informal, official and unofficial (chapter 6);

Developing the plot: Arrangements for the input of scientific information (chapter 7);

The cast: Participation of negotiating parties and non-state organizations (chapter 8);

Theatrical props: Use of texts and time management (chapter 9).

This list of elements is admittedly not comprehensive. The organization of the negotiation process is not an easy phenomenon to delimit (especially as there is little help in the literature on how to do this), and other organizational elements could have been considered, such as the geographical venue of a negotiation, the financing of the regime, how parties organize themselves into coalitions, or the composition of delegations. The choice of elements for this thesis, however, is not arbitrary, and was constructed based on two criteria.

Firstly, the list considers only what Young (1994:152) calls “decision variables”, that is, “factors which are subject to conscious control or manipulation on the part of those responsible for designing and managing international regimes”. It is generally not possible, for example, to consciously manipulate the coalitions that parties should form or the composition of their delegations, as this choice is based on individual, sovereign choice. If the aim is to improve the organization of negotiation processes, then it makes sense to focus on those factors that can be subject to deliberate manipulation (see Jacobson and Weiss, 1998b). Secondly, the list is based on my own judgment as to what were the most significant organizational elements in the Kyoto Protocol negotiations, and

42 therefore which were likely to yield the most interesting insights. This judgment took into account interview responses which, for example, were able to eliminate the geographical venue of negotiations and the financing of the regime as significant factors.

ASSESSING THE EFFECTIVENESS OF THE ORGANIZATION

The way in which a negotiation is organized can impact on the negotiation process in a positive or negative way to enhance or reduce its effectiveness. This basic assumption is supported by the literature. Lang (1994:206), for example, states that “organizational features of a specific negotiation constitute ... important background conditions which are able to facilitate or delay progress”, while Boyer (1999:102) notes that inefficient and undesirable outcomes have often resulted from “the way in which negotiations have been structured and organized”. Slaughter et al. (1998:387) similarly contend that “some mutually beneficial agreements will not be achieved simply because the negotiation process is structured poorly, not because there is no zone of possible agreement”.

Effectiveness in the literature Little analytical work has been done, however, on pinning down what constitutes an effectively organized negotiation. Several negotiation analysts speak of ‘effective’ or ‘good’ negotiations, but do not define what they mean by these terms (e.g. Zartman and Berman, 1982; Kaufmann, 1988). Susskind (1994), who, as noted above, is one of the negotiation analysts paying most attention to organizational issues, discusses the inadequacies of current global environmental negotiations and the need for better organization, but without putting forward specific criteria by which the effectiveness of a negotiation process could be assessed. Similarly, while empirical case-studies provide many examples of organizational elements done well, such as a judiciously convened ‘friends of the Chair’ group (Sanders, 1989); or badly, such as a Chairman’s text perceived as biased (Dell, 1989)’^ there appears to be no framework in the negotiation literature for assessing the overall effectiveness of how a negotiation process is

Negotiations on the third review of the nuclear non-proliferation treaty and the UN code of conduct for transnational corporations, respectively.

43 organized. Devising such a framework would be a first step to seeking to improve the effectiveness of the organization of multilateral negotiations.

The concept of effectiveness is much better developed in the literature on regimes, where the study of regime effectiveness has become one of the most significant recent growth areas (e.g. Underdal et al., 1998; Victor et al., 1998; Young, 1999). This is partly due to a recognition on the part of both researchers and policy makers that, while the number of environmental regimes has proliferated, little is known about how effective these regimes actually are, and how they could be made more effective (Jacobson and Weiss, 1998a). Interestingly, this focus on effectiveness has been targeted overwhelmingly at environmental regimes. A flurry of recent publications such as those cited above, also P. Haas et al. (1993) and Young (1997), have sought to analyze the effectiveness of environmental regimes, including their interlinkages with one another and possible unintended side-effects. Economic regimes, however, have not been subject to the same degree of critical scrutiny (Von Moltke, 1999).

One of the key questions addressed by scholars has been how to frame effectiveness, giving rise to several different answers. Jacobson and Weiss (1998b), for example, distinguish two dimensions to effectiveness, namely, the extent to which the stated objectives of a treaty have been met, and the extent to which the problems that led to the treaty have been addressed. In an overview article. Levy (1996) identifies three main strategies in the literature for defining effectiveness, which he classifies as compliance, behavioural change and policy suitability. A further definitional framework is that put forward by Underdal et al. (1998), who make a distinction between the effectiveness of a regime in terms of its outputs (its agreed norms, rules and regulations); outcomes (the alteration in behaviour in states and other target groups); and impacts (the change in the bio physical environment). Other useful discussions of regime effectiveness appear in Sand (1992) and Vogler (1996).

All these dimensions to regime effectiveness, however, concentrate on the substantive effectiveness of the regime in ameliorating the problem under consideration, therefore principally invoking the nature and structure of the

44 substantive core of the regime. This thesis takes a different approach. It explores effectiveness with reference to the negotiation process itself, thus focusing attention on the regime’s procedural component and other organizational elements. These two dimensions of effectiveness are undoubtedly linked; an effectively organized negotiation process is likely to lead, to use Underdal et al.’s terms, to better outputs, which are in turn more likely to generate effective outcomes in inducing behavioural change, and which can therefore be expected to have a more positive impact on the problem itself. Indeed, a number of regime effectiveness analysts do invoke, to varying extents, organizational elements as factors influencing substantive effectiveness, such as decision-making procedures, the role of the secretariat and the communication of scientific information. Wettestad (1999) deals with organizational issues in this way most thoroughly, but see also P. Haas et al. (1993); Andresen and Wettestad (1995); Jacobson and Weiss (1998a); and Young (1994). Insights derived from such analyses will be of relevance for this thesis.

It is clear from the foregoing discussion that, while several strands of literature on both negotiations and regimes are relevant to this research project, none consider directly how the effectiveness of the organization of a negotiation process could be assessed. The remainder of this chapter turns its attention to answering this question.

The negotiation goal A key assumption for assessing the effectiveness of the organization of the negotiation process is that the broad goal of the negotiation itself, that is, the collective goal of the negotiating parties, is to reach an agreement that will fulfill the negotiation mandate and meaningfully address the problem at hand (see Albin, 1999b). Clearly, the views of negotiators will differ as to the desired form and content of the agreement and how the problem should be meaningfully addressed; if not, there would be no reason to negotiate. In this sense, therefore, their negotiating aims will differ. However, assuming that parties are negotiating in good faith, they will share the broad goal that the negotiation should result in an agreement in accordance with the negotiating mandate, and that this agreement should have a substantive impact on the problem; that is, there should not just be

45 an agreement to disagree. As Brenton (1994:210) notes in the case of UNCED, for example, the “united aim” of negotiators and observers was “a successful UNCED - even if their definitions of ‘successful’ differed radically”.

The notion of negotiating in good faith is a critical one*^. There are cases where parties negotiate with the implicit aim to obstruct agreement, what Wallihan (1998) calls “avoidance bargaining”. Such parties tend to exert a disproportionate influence on the negotiation. As Fisher et al. (1992:106) note in the elaboration of their concept of “best alternative to a negotiated agreement” (BATNA), “the relative negotiating power of two parties depends primarily upon how attractive to each is the option of not reaching agreement”. Given that ‘avoidance bargainers’ have a very attractive BATNA, that is, they actively seek non-agreement, their bargaining leverage in the negotiation can be high. Such parties, however, are necessarily the exception. By virtue of the fact that a negotiation has been launched - which is often, in itself, a politically significant step - the assumption can be made that the dominant collective goal of the parties, albeit held to varying strengths, is to reach a substantively meaningful agreement.

Effectiveness criteria On the basis of this assumption, the effectiveness of the organization of the negotiation process can be defined as the extent to which organizational elements promote the achievement of a substantively meaningful agreement according to the negotiating mandate. In order to facilitate a more rigorous analysis, this thesis puts forward six indicative criteria to assess this effectiveness, as follows:

• Efficiency; • Procedural equity; • Transparency; • Information accessibility; • Promotion of a cooperative approach; and • Provision of leadership, and skill and energy.

See Iklé (1964) for a critique of the concept. On the wider applicability of good faith in international law, see O’Connor (1991).

46 These criteria were compiled based on three sources: analytical studies touching on the effectiveness of negotiations (e.g. Kaufmann, 1988; Susskind, 1994; Wettestad, 1999); empirical case-studies of negotiations (e.g. those contained in Kaufmann, 1989); and literature on the functions of regimes (e.g. Keohane, 1984, 1989; P. Haas et al., 1993; Young, 1999). The latter source merits clarification. Given that the organization of the negotiation process is based on the procedural component of a regime, analyses of regime functions are also potentially relevant to defining the roles that should be performed by the organization of the negotiation process in order for it to be effective.

The criteria are proposed on an indicative basis, that is, their utility and validity will be tested out through the case-study assessment of the effectiveness of the organization of the Kyoto Protocol negotiation process in chapters 4-9. In this respect, the criteria are primarily intended to provide an experimental basis for further research on this topic. We will now consider each criterion in turn.

Efficiency Efficiency in the organization of a negotiation process is critical to achieving the basic goal of reaching agreement within the given time frame. This is particularly the case for global negotiations, which, as noted above, are highly complex and therefore involve high transaction costs in terms of physical and financial resources, human effort and time. Moreover, complexity and high transaction costs can potentially generate an excess of messages for negotiators to process, which can generate confusion and “information overload” (Winham, 1977). This tendency to inefficiency of global negotiations is well-known, and is reflected in the stereotypical view that “modern intergovernmental conferences of the UN General Assembly ... are a waste of time, energy and money” (Kaufmann, 19!38:1).

An effectively organized negotiation process should thus seek to promote efficiency, that is, to lower the transaction costs and reduce the complexity of a negotiation (Underdal, 1991a; Levy et al., 1993). Three main dimensions to this task can be identified:

47 • Organizing the use of time over the negotiation process. This is particularly important to overcoming the deep seated tendency among negotiating parties to use the time allocated to them inefficiently by delaying bargaining until the final stages of the negotiation process (Zartman and Berman, 1982);

• Structuring and simplifying consideration of the many issues under consideration; and

• Managing the number of parties negotiating on individual topics;

Another means of reducing transaction costs and enhancing efficiency is through the provision of information (Levy et al., 1993). This dimension is discussed separately below.

The importance of efficiency to reaching agreement in a negotiation is recognized in the literature. Fisher et al. (1992), for example, identify efficiency as one of three criteria to judge a method of negotiation, while Zartman (1994b) sees the key to reaching a consensus decision in a negotiation as the management of complexity. Keohane (1989) and Levy et al. (1993), in turn, consider reducing the transaction costs of intergovernmental cooperation and facilitating efficient negotiations to be a key role that regimes should play.

Procedural equity Procedural equity in the context of a multilateral negotiation concerns the extent to which the negotiation process is considered to be equitable, that is, to conform to notions of fairness (IPCC, 1996c). It is distinct from substantive or consequential equity, which refers to the equitable nature of the decisions emanating from that process (IPCC, 1996c; see also Franck, 1995; Albin, 2001). Two dimensions to procedural equity can be identified:/orma/ and practical. Formal procedural equity relates to the participation and decision-making rules of the negotiation. In this respect, in most (but not all) multilateral regimes, it is expressed through a one-state-one-vote system, whereby states negotiate on the basis of formal sovereign equality.

48 Practical procedural equity, however, “requires that all parties be able to participate effectively” in the negotiations (IPCC, 1996c: 8). It is much more difficult to ensure than formal procedural equity. By way of example, a negotiating party may have an equal, formal right to participate in a negotiation given a one-state-one-vote system. The much smaller size of its delegation relative to others, however, may severely curtail its practical capacity to participate, so that the formal level playing field becomes, in practice, lop-sided. This example is common in global negotiations, where negotiating parties span both poor developing countries with few resources and low negotiating capacity, and rich industrialized countries with considerable human and financial resources at their disposal (IPCC, 1996c; J. Gupta, 1997).

The promotion of procedural equity can help achieve the goal of a negotiation in several ways. Most importantly, if negotiators feel that the negotiation process is equitable, they are more likely to participate cooperatively in that process, and to accept the resulting agreement as legitimate (IPCC, 1996c). According to Zartman (1991:67), “parties negotiate most productively when they feel equal, and they achieve the most satisfactory outcome when they view it and the process as fair”. This concurs with the findings of the IPCC (1996c: 117), which suggest that “countries that do not perceive a process to be fair have great power to obstruct it, ensuring that negotiations make little progress”. In a similar vein, promoting procedural equity is important to building up trust and better relations among negotiating parties, which is particularly significant in the context of a continuous negotiation process and the fact that multilateral negotiations are inherently ‘repeated games’. If negotiators with less negotiating capacity feel that their disadvantage is exacerbated by the way in which the negotiation process is organized, the result may be ill will and resentment, which will tend to be carried over to the next negotiating round. A critical aspect of the organization of the negotiation process should thus be to try to narrow the gap between the formal procedural equity that is typically enshrined in a regime and practical procedural equity.

49 Transparency Transparency relates to the openness of the negotiation process and encompasses two dimensions: transparencyamong the negotiating parties, which is closely related to procedural equity, and transparency relative to public scrutiny, from both the non-state audience present at the conference venue and the public outside.

The first dimension, transparency among the negotiating parties, arises as an issue because of the practical impossibility of conducting meaningful global negotiations on complex issues among 180+ heterogeneous parties. This practical impossibility generates a tendency to the formation of smaller negotiating groups in which not all parties participate, either because they lack the capacity to do so, or because the groups are officially designated as limited membership only. Lang (1994) draws attention to this tendency, noting how a “two-tier” process often develops, whereby the full membership of a conference entrusts the negotiations to smaller groups to improve their efficiency. Other negotiating groups, however, are likely to emerge on an unofficial, even secretive basis, as (usually more powerful) parties seek to negotiate deals among themselves and “to confront the other partners with a finished agreement which it will be difficult to oppose” (Iklé, 1964:135). The fact that parties are typically negotiating from a position of formal procedural equity expressed through sovereign equality, however, triggers a demand for transparency, that is, for all negotiating parties to be involved in, or at least to be kept informed of, developments in the negotiations, and for all issues to be presented for debate in a fully open forum before they are decided upon. As Freymond (1991:131) puts it, “one of today’s challenges” is therefore “how to reconcile the relatively greater efficiency of a negotiation limited to selected parties with the ‘democratic’ right of sovereign states to be associated with decisions likely to affect them”.

Transparency among negotiating parties can be seen as an important dimension of procedural equity. If negotiators are aware of developments in the negotiations, they will be better equipped to participate and articulate their views, thus enhancing the chances of reaching an integrative, win-win agreement. Negotiators are also more likely to feel a sense of ownership of the eventual

50 agreement, increasing the likelihood that it will then be ratified and implemented. Lack of transparency is indeed one of the major complaints leveled at ‘ineffective’ negotiation processes; see, for example, Mabey (2000) on the failure of the 1999 World Trade Organization Ministerial Conference. An effectively organized negotiation process should thus strive to meet demands for transparency among the negotiating parties to the greatest extent possible, in the context of an inherent tendency for global negotiations to splinter into smaller, more exclusive groups.

The second dimension to transparency - transparency relative to public scrutiny both inside and outside the conference venue - is especially significant for global environmental negotiations, given the high degree of public interest in, and concern over, these issues (Thomas, 1992; Faure and Rubin, 1993). Indeed, global environmental negotiations do tend to be more open to the public than negotiations on more traditional economic or security issues, or bilateral negotiations (Lang, 1994). ‘Public’ in this regard includes non-governmental organizations (NGOs), such as environmental and business groups and other advocacy or academic organizations, as well as the media, through which the interested public outside the conference venue is informed of proceedings. Transparency relative to public scrutiny has several ingredients: the extent to which non-state organizations, including the media, are able to observe negotiations; the accessibility of negotiating texts and other documentation; and the extent to which information is made available on the negotiations. Procedures whereby non-state organizations can express their views during the negotiation process and give feedback to negotiators can also be considered a dimension of transparency.

Promoting public transparency through the organization of the negotiation process can contribute to the achievement of the negotiating goal in several ways. Most importantly, transparency is likely to raise public awareness of the problem under negotiation, thus potentially increasing pressure on negotiators to reach a substantively meaningful agreement (Wettestad, 1999), and promoting its eventual ratification and implementation. As Zartman and Berman (1982:216) put it, “it is ... easier in a democratic country to sell an agreement to an audience that understands the process of putting it together”. In addition, participation by

51 environmental NGOs is often seen as providing a voice for the environment (Chattel]ee and Finger, 1994), thus promoting an environmentally stronger agreement, and therefore hopefully a more substantively meaningful one. Public transparency is also generally viewed as a good in itself, holding representatives of states accountable to their domestic constituencies (Susskind, 1994; Gordenker and Weiss, 1996).

This is not always the case, however. Several analysts suggest that “negotiating in a goldfish bowl of non-governmental scrutiny” (Benedick, 1993:231) can make it more difficult for negotiators to adjust their preferences and explore possible win-win options in a creative manner (Lewicki et al., 1999). Making provisions for the participation of non-state organizations can also increase the complexity of a negotiation and adversely affect its efficiency. This is especially the case as non-state organizations are themselves heterogeneous, and often seek to influence government negotiators in sharply contrasting ways. Some may even aim to obstruct the process (Newell, 2000). Sjostedt et al. (1994:238), for example, in their analysis of the high levels of NGO participation at UNCED, suggest that while “extensive participation of NGOs may produce noteworthy benefits, for example, related to implementation effectiveness ... [the] other side of the coin is ... that a large NGO participation in a regime-building process also entails considerable costs”. There may be a tension, therefore, between the benefits of participation by non-state organizations for achieving certain dimensions of the negotiation’s goal and disadvantages for others; what Wettestad (1999:21) calls “a classic dilemma ... related to the conflicting general concerns for openness and legitimacy versus decision-making effectiveness”. Indeed, the debate over the extent to which negotiations should be ‘secret’ or ‘open’ is a longstanding one in the diplomatic arena (e.g. see Nicolson, 1939/63; Iklé, 1964). The management of this tension is an important dimension to the organization of global environmental negotiations.

Information accessibility Having access to information concerning the substance of the problem under negotiation - for example, its causal factors, consequences and possible response measures - is critical both to reaching agreement and to ensuring that the

52 agreement is substantively meaningful. At the most basic level, parties will be unwilling to take potentially costly, short-term action to address a problem if there is only limited information about the benefits of that action. Uncertainty may also be used as an excuse for inaction by parties that have a vested interest in not addressing the problem and who wish to engage in avoidance bargaining (Fouéré, 1988; Wallihan, 1998). According to the UNFCCC secretariat:

“The importance of scientific assessment... cannot be overstated. It is the scientific findings on climate change that interest the public and that motivate political and economic responses. At the same time, scientific uncertainty is a mitigating force, limiting the environmental drive of the Convention process. More and better scientific information and assessment reinforce the political resolve to implement and strengthen the Convention” (FCCC/SBSTA, 1996a).

In addition, in the face of uncertainty over their tangible, national interests, parties are more likely to construct their national preferences based on longstanding - and generally more stable - values and principles, and less likely to explore innovative, constructive solutions (J. Gupta, 1997). Underdal (1983) identifies uncertainty over domestic preferences and the impact of proposed solutions as a potential cause of negotiating failure, as parties will hesitate to go beyond familiar options and seek to stay as close to the status quo as possible. This tendency is also noted by the IPCC (1996c: 118): “negotiations are difficult enough when each country is seeking only to pursue a narrowly defined self- interest. They can be even more difficult when states do not have a clear idea of where their self-interest lies”.

Moreover, if there is great uncertainty over the causes and consequences of a problem and possible response measures to ameliorate it, it may be difficult to tailor an agreement so that it addresses the problem in a substantively meaningful way (Andresen and Wettestad, 1995). According to the IPCC (1996c: 118), “many bad policy decisions can be traced to inadequate information”.

It is important, however, that information used in a negotiation be shared information, that is, made equally accessible to all negotiating parties. This is particularly important in a global negotiation, where there will tend to be a

53 “regional imbalance in the knowledge base” between industrialized and developing countries (J. Gupta, 1999:1). Given that control over knowledge is a form of power (P. Haas, 1992), asymmetry in information yields dependencies for information that can easily foster suspicion (Sjostedt and Spector, 1993). Negotiating parties who have less information will often be reluctant to consider or accept innovative proposals coming from parties with greater access. As the IPCC (1996c: 118) warns, “the feeling that some participants are much better informed than others can, and frequently does, lead to a suspicious and obstructive attitude in negotiations that ultimately may be to the detriment of all”. Access to information is thus strongly linked to procedural equity.

The process of providing information should also seek to avoid the dangers of “adversary science”, that is, when individual scientists put forward contrasting scientific theories and assessments motivated by their own special interests or those of clients (Susskind, 1994). Such adversary science, when scientists become, or are perceived to be, nothing more than another political interest group, “poses the greatest danger to effective collaboration in response to global environmental threats” (Susskind, 1994:71). It is therefore important for information to come from a trusted, independent source (Underdal, 1991b), especially one that can mediate between different scientific viewpoints. Providing such shared, independent information is recognized in the literature as an important function for regimes. Levy et al. (1993:412), for example, note that:

“Without institutional intervention, knowledge that is relevant to policy making remains trapped within those nations active in scientific research ...[and] ...commonly diffuses quite slowly ...institutions can help speed up the diffusion process”.

Moreover, it is important that the process of communicating scientific information go beyond the simple transmission of empirical facts and figures to encourage a collective learning process that can lead to the forging of “consensual knowledge” among negotiating parties (P. Haas, 1990; Levy et al., 1993; Sjostedt, 1994). The concept of consensual knowledge in this context is linked to that of

54 epistemic communities^’ as developed by P. Haas (1990), and is also closely related to the concept of learning in the regime literature (see Nye, 1987; E. B. Haas, 1989). The role of regimes in promoting learning among negotiating parties, that is, “in changing factual information, prevailing discourses, and even values” (Young and Levy, 1999:25), is broadly acknowledged in this literature, although its precise nature and how it occurs is contested (see also Rubin, 1991b; Jonsson, 1993).

Promotion of a cooperative approach The extent to which parties adopt a more or less cooperative approach to the negotiation process can be a major factor in determining whether the negotiation achieves its goal. Although the tension between cooperation and competition, discussed at the start of this chapter, is often presented as a dichotomy in the literature (e.g. Pruitt, 1981; Lax and Sebenius, 1986; Wagner, 1999), the two approaches should not be seen as clear-cut or mutually exclusive alternatives (Sebenius, 1992). Competition and cooperation are not absolutes, and varying degrees of both are possible. The approach adopted by any particular party is likely to combine elements of both competition and cooperation, in what has been termed “mixed motive” bargaining (Dupont and Faure, 1991:54).

The literature tends to see a more cooperative, problem-solving approach as beneficial to a negotiation, capable of promoting a more integrative agreement that reconciles more fully the preferences of all parties, as well as better relations among them. Fisher et al. (1992), for example, claim that competitive behaviour reduces the chances of reaching agreement, decreases the quality of any agreement that is reached, is inefficient in terms of time, costs and effort, and endangers ongoing relationships among parties. Competitive behaviour, where a negotiation becomes a battlefield and other negotiators are viewed as adversaries (e.g. Ilich, 1973), is likely to exacerbate tendencies among negotiators to want to ‘save face’ or ‘score points’, reducing their willingness to consider the proposals of others, concede or accept compromises. Underdal’s (1983, 1991) concept of

An epistemic community is “a professional group that believes in the same cause-and-effect relationships, truth tests to assess them, and shared common values” (P. Haas, 1990:55).

55 “process-generated stakes” is helpful here, referring to potential obstacles to reaching agreement generated by negotiating behaviour or the negotiation process, rather than the substantive issues themselves; for example, “arguing strongly and persistently against a certain solution tends to make that solution harder to accept later in the process” (Underdal, 1991b: 106).

The potential disadvantages of competitive behaviour are particularly high in global negotiations, where the large number of heterogenous parties raises the transaction costs of such an approach relative to cooperation. As Fisher et al. (1992:7) note, “the more people involved in a negotiation, the more serious the drawbacks ... If some 150 countries are negotiating, as in various United Nations conferences, positional [competitive] bargaining is next to impossible”. In order to reach agreement through competitive behaviour, individual negotiators or coalitions will need to extract concessions from their many counterparts, while each of their counterparts are trying to do the same thing with the others. Such a “concessionary dance” (Susskind, 1994:34) makes for a chaotic and time- consuming process, where the interests of all parties are unlikely to be integrated.

However, despite the theoretical potential for cooperation and the costs of competitive behaviour, it is the latter approach that tends to dominate in global negotiations. According to Martinez and Susskind (2000:571):

“Bargaining in the international arena is intrinsically positional [competitive]: negotiators ... arrive ... with carefully crafted marching orders - from which they are not supposed to deviate. Their stated ‘positions’ are, for the most part, not open to revision without consultation with ... domestic ministries. Even though [negotiators] recognize that the invention of additional ‘packages’ might well produce better results for all sides, they are allowed precious little leeway at the negotiating table. The risk that something offered in an informal exploratory exchange might be misinterpreted as a commitment or misused by others is too great”.

This is even the case in global environmental negotiations, where the collective action nature of the problem under negotiation suggests a particular need for a cooperative approach. Given the joint interest of parties in resolving global collective action problems, these should not be seen as win-lose negotiations, where a gain for one party equals a loss for the other (Faure and

56 Rubin, 1993). Some theorists thus argue that multilateral environmental negotiations are fundamentally exercises in problem solving and learning, rather than bargaining (e.g. Spector, 1994; see also Zartman, 1993).

In practice, however, this is not the case, and global environmental negotiations appear to be as competitive as any other type. This should not be surprising. As Zartman (1993) notes, the fact that negotiations are taking place at all means that conflict of interest exists. Some negotiating parties are likely to gain from the activity degrading the environment, and there will be disputes over who should bear the costs of mitigation. In other words, “[parties] all have a common interest: to ensure a healthier environment. However, the costs of achieving a healthier environment usually puts them at odds with each other” (Kremenyuk and Lang, 1993:10). More fundamentally, intergovernmental negotiations inevitably take place within a fragmented and often highly conflictual sovereign state system (Hurrell and Kingsbury, 1992). While meaningful cooperation is possible and ‘regimes matter’, many theorists argue that the underlying system of competitive state sovereignty poses inherent obstacles to addressing global environmental problems whose causes and consequences do not conform with national boundaries (see Thomas, 1992; Camilleri and Falk, 1994; Paterson, 1997).

Cooperation cannot, therefore, be assumed to automatically prevail and needs to be actively encouraged if it is to gain importance relative to competitive behaviour. The organization of the negotiation process can play an important role in this regard. This view is supported by several writers who see a key function for regimes and institutional arrangements in providing a “contractual environment” (P. Haas et al., 1993) for negotiating parties, helping to overcome obstacles to cooperation on collective action problems (Keohane, 1984).

A key factor in doing so will be to facilitate the sharing of information among parties (Sebenius, 1992), not only on the substance of the problem as discussed above, but also on each others’ preferences, including underlying tangible interests and intangible values (Lewicki et al., 1999). Uncertainty about the preferences of others can render a negotiating party more cautious about

57 adjusting its own preferences and more reluctant to choose between options (Underdal, 1983; Stokke, 1997). Encouraging the open communication of preferences can therefore help to build confidence and thus a more cooperative approach. Moreover, in order to reach an agreement that all parties can accept, it is clearly necessary to know in as much depth as possible what the preferences and underlying values of parties are, and how strongly these are held. As Sebenius notes, “finding joint gains requires that each party learn about the other’s priorities in order to craft mutually beneficial trades” (1992:329). Several theorists show how innovative solutions can be found for even the most seemingly irreconcilable national preferences, if one delves beneath these stated rigid preferences to reveal the real, underlying concerns (Pruitt, 1981; Raiffa, 1982; Fisher et al., 1992).

Promoting cooperative behaviour also requires the building of trust. As Plantey (1989) notes, cooperation requires a degree of credit in a bank of trust, so that immediate reciprocity is not necessary. That is, if a negotiating party adjusts its position to the advantage of another party, it will not necessarily require an immediate reciprocal adjustment from that other party, as it will trust that such reciprocal action will come in due course (see Bars ton, 1983; Jonsson, 1993). Trust is not simply a bilateral phenomenon. According to Kaufmann (1988:68), “confidence is a psychological trait which can exist as a collective feature of a conference. Ideally confidence emanates from the conference as a whole, and is reflected in the behaviour of individual delegations” (emphasis added).

Good communication is a further factor that is critical to cooperation (Sebenius, 1992; Jonsson, 1993). Without good communication, parties may misunderstand the messages they receive from others, provoking mistrust and therefore more competitive tendencies. Poor communication, however, is a major problem in most global negotiations, which must contend with a multiplicity of different cultures and language groups, especially if there is an existing context of mistrust and uncertainty (Jonsson, 1991; Fisher et al., 1992). The complexity of the social context in which negotiators are operating means they must develop “short cuts” to make sense of that context (Jonsson, 1991). Negotiators will therefore tend to stereotype each other, interpreting messages they receive to

58 bolster their existing (often negative) perceptions rather than exploring the intended (often more positive) meaning behind them (Lewicki et al., 1999). Any observer of a global negotiation will pay testimony to the perceptual distortions that often prevail, especially between groups that traditionally distrust each other, such as the developing country Group of 77 (G-77) and the industrialized states.

Provision of leadership, and skill and energy Effective leadership is seen by many as being critical to reaching agreement, particularly in a situation of complexity, uncertainty and conflict (Pruitt, 1981; Rubin, 1993; Underdal, 1994; Gupta and Grubb, 2000). Leadership is a complex phenomenon in a multilateral negotiation (Young, 1991; Gupta and Grubb, 2000), for which several analysts have put forward similar typologies (e.g. Young, 1991; Antrim, 1994; Underdal, 1994). An important distinction within these typologies can be made between leadership aimed at furthering a particular substantive outcome desired by the leader, defined as “structural leadership” by Young (1991) or “coercive leadership” by Underdal (1994); and leadership seeking to promote the broad goal of a negotiation, defined as “entrepreneurial leadership” by Young (1991), “instrumental leadership” by Underdal (1994), or “process-oriented leadership” by Wettestad (1999). Given the focus of the thesis, leadership seeking to promote the broad goal of a negotiation (which we will term ‘process-oriented leadership’) is the most relevant. In a particularly useful typology, Antrim (1994:151) disaggregates this form of leadership into:

• Procedural leadership: “the management of the negotiating process”;

• Substantive leadership: “the identification and promotion of responses to substantive issues”; and

Inspirational leadership: “support for the goals of the conference and a commitment to the overall process”'^

Antrim’s substantive leadership resembles Young’s (1991) “intellectual leadership”. Young also points to “charismatic leadership”, akin to Antrim’s “inspirational leadership”, but considers this to be of less importance. The significance of inspirational leadership is, however, recognized by other writers (e.g. Pruitt, 1981; Wagner, 1999).

59 A related, more expansive means of conceptualizing process-oriented leadership is in terms of the provision of “skill and energy” to a negotiation process (Underdal et al., 1998). Leadership requires “followership” (Rubin, 1991a); that is, it is a self conscious act of taking control whereby followers know they are being led and consent to this. The supply of skill and energy, however, can be more subtle and diffuse, being injected by actors seeking to promote the negotiating goal but without assuming, and sometimes deliberately eschewing, the mantle of explicit leadership.

Leadership and skill and energy may be provided in different ways by different actors in the negotiations (Antrim, 1994). Ministers, for example, may have an important leadership role to play at key stages in a negotiation, which an effectively organized process should seek to draw out (Wettestad, 1999). Often, however, process-oriented leadership will not be forthcoming on a continuous basis from any negotiating party. As Zartman (1993:271) explains, “states usually enter into environmental negotiations with the purpose of furthering or defending their own corner of interests, rather than exercising global leadership”. In such cases, one or more members of the production team - the presiding officers, bureau or secretariat - can play an important role in filling that leadership vacuum or providing skill and energy to compensate for it (Kaufmann, 1988; Antrim, 1994b; Sjostedt et al., 1994b). Using an alternative terminology that fits well with the theatrical analogy of this thesis, Zartman (1992:120) presents such process- oriented leadership or skill and energy as “orchestration”, whereby a “designated conductor or leader”, usually a presiding officer or secretariat, uses “orchestration strategies” to “agglomerate parties into a consensual position”.

Leadership and the provision of skill and energy are “notoriously elusive (although fascinating) subjects of study, ideally requiring in-depth empirical analysis of interaction that often takes place behind closed doors” (Underdal et al., 1998:52). The particular methodology of this thesis, involving ‘back stage’ participant observation of the negotiation performance, provides a good opportunity to consider the extent to which, and how, such leadership was exercised and skill and energy provided, especially by the production team.

60 Putting the criteria together Readers will note that some of the above criteria are complementary. Facilitating transparency and equal access to information, for example, can also be seen as efforts to promote procedural equity. Conversely, some of the criteria may conflict (Yamin, 1999); the requirements of efficiency, for example, may clash with those of transparency and procedural equity. Some criteria may also turn out to have perverse implications. Young (1989, 1994), for example, suggests that a “veil of uncertainty” over the causes and consequences of a particular problem can facilitate the reaching of agreement by inducing parties to adopt a more progressive position in case they turn out to be badly affected by that problem. The corollary is that the provision of more accurate substantive information might have the perverse effect of accentuating the differences among parties and making agreement more difficult if, for example, improved data reveals that a particular problem would affect parties to greatly differing extents. Intricacies and complexities such as these form part of the twists and turns that make the study of the organization of the negotiation process so interesting.

SUMMARY AND CONCLUDING REMARKS

This chapter has sought to define a broad analytical framework that will be used to analyze and assess the organization of the Kyoto Protocol negotiation process, drawing on the analogy of negotiation as theatrical performance. In doing so, the chapter put forward a conceptualization of both a global negotiation and a regime, based on an overview of the relevant literature on these topics. The chapter then developed a definition of the organization of the negotiation process, and pinpointed six organizational elements to be analyzed by the empirical chapters. Finally, the chapter considered how to assess the effectiveness of the organization of the negotiation process, putting forward six effectiveness criteria. These criteria will be used to frame the analysis of the organization of the Kyoto Protocol negotiations contained in chapters 4-9, as well as the concluding chapter 10. In doing so, the thesis hopes to stimulate further work in this area.

We now turn to chapter 3, which aims to ‘set the scene’ for the case-study analysis of the Kyoto Protocol negotiations.

61 CHAPTER 3

SETTING THE SCENE: A PROLOGUE AND THE PLOT

“It was like the start of an up-market soap opera...” (Brenton, 1994:185)

INTRODUCTION

This chapter shifts the focus of the thesis towards its empirical case-study. The aim is to ‘set the scene’ for the analysis of the organization of the Kyoto Protocol negotiation process examined in the chapters to come, providing important background information and introducing specific concepts and vocabulary. The chapter begins with a prologue to the Kyoto Protocol negotiations, exploring the uniquely malign characteristics of climate change and the historical development, nature and structure of the climate change regime. It then sketches out the plot of the Protocol negotiations, outlining first the major issues at stake, then exploring their political dynamics. The chapter closes by summarizing the key challenges facing the organization of the negotiation process, as brought to light by the discussion.

A PROLOGUE TO THE KYOTO PROTOCOL NEGOTIATIONS

Climate change: A unique problem Global environmental problems are often seen as possessing certain characteristics that pose particularly difficult challenges for the negotiation process (Hurrell and Kingsbury, 1992; Sjostedt, 1993; Susskind, 1994; Vogler, 1996). Among global environmental problems, climate change is commonly viewed as uniquely “malign” (Underdal, 1991; Wettestad, 1999), displaying both extreme manifestations of the general characteristics of global environmental problems and its own, qualitatively unique features that present “the decision maker with a set of formidable complications” (IPCC, 1996c:7, 5; see also Bodansky, 1993; Grubb, 1995; Paterson, 1996). Some of the key characteristics of climate change - notably its globality and uncertainty, its multi-issue and long term nature, its development and equity dimensions, and its high levels of public interest and catastrophic potential - are discussed below.

62 Globality: Climate change, whose basic science is set out in box 3.1, is the most “quintessentially ... global” (Grubb, 1995:465) of the global environmental " problems (Paterson, 1992; IPCC, 1996c; Rayner and Malone, 1998). GHG emissions are well mixed in the atmosphere, which means that there is no relation between the geographical location of emissions and their eventual effects (IPCC, 1996a). Moreover, the global pervasiveness of the main drivers of climate change - fuel combustion and land-use change - means that all countries, all regions, and all individuals have the potential to contribute to the problem (Rowlands, 1995), although, as discussed below, they do so to varying extents.

Box 3.1: Climate change: The basic science

• So-called ‘greenhouse gases’, such as carbon dioxide (CO 2 ), trap part of the radiation received from the sun, creating a natural greenhouse effect that warms the earth’s surface. Without it, the earth would be too cold for human habitation.

• Industrialization - in p a rtic u la r fuel combustion and land-use changes, such as intensive agriculture and deforestation - has led to rising emissions of these GHGs. This is triggering an enhanced greenhouse effect, leading to warming across the globe and associated changes in local weather patterns.

• CO2 accounts for around 60% of the enhanced greenhouse effect. Other major GHGs are methane (CH4) and nitrous oxide (N2 O).

• Global mean surface air temperatures have increased by 0.3-0.6°C since the late 19‘^ century. In its 1995 Second Assessment Report (SAR), the IPCC predicted an average temperature rise of 1-3.5°C from 1990 levels by 2100, an estimate that was revised upwards to 1.4-5.8°C in its 2001 Third Assessment Report. In both cases, this would be the highest rate of increase for 1 0 , 0 0 0 years (since the end of the last ice age).

Sea levels are predicted to rise by 15-95cm by 2100. Precipitation patterns are forecast to change; the global hydrological cycle is expected to intensify, with the possibility of more droughts, floods and/or storms in many regions.

The specific impacts of climate change will vary from region to region. Worst affected regions, however, could suffer dramatic negative impacts on human health, food security, economic activity, water resources and physical infrastructure, potentially triggering large-scale loss of life and migration.

Sources: Houghton (1994); IPCC (1996a, b); IPCC (2001); FCCC (2000).

63 Uncertainty: Uncertainty, both scientific and economic, is a pervasive feature of decision-making on climate change (IPCC, 1996c; Rayner and Malone, 1998). From a scientific perspective, the climate system is immensely complex, naturally variable and chaotic, so that a small change in one part can lead to major changes in others, while multiple feedback mechanisms, both positive and negative, are at work (IPCC, 1996a). The concentration of GHGs in the atmosphere is only one factor among many (e.g. ocean currents, solar radiation) determining global temperatures, so that it is very difficult to “identify the anthropogenic ‘signal’ against the background ‘noise’ of natural climate variability” (IPCC, 1996d:17). 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 (IPCC, 1996b).

Uncertainty also reigns over how to respond to climate change. The predicted costs of mitigation, as well as the costs of climate change impacts, depend on the assumptions made, and therefore vary greatly in the literature. According to the IPCC (1996c:303), “estimates have spanned such a wide range that they have been of limited value to policy making”. In addition to the well-known problem of differing assumptions, the nature of climate change itself poses difficult challenges for conventional economic cost-benefit analyses (Rowlands, 1995; IPCC, 1996c), including its long time lags, equity dimensions, and potential for catastrophic change, as described below

Multi-issue: The pervasiveness of fossil fuel combustion and land-use change means that climate change is implicated in almost every human activity. GHGs are emitted from a myriad of small and large sources, from power plants to private cars, paddy fields to gas cookers, aluminum smelters to land-fill sites^°. There is, therefore, no single identifiable cause of climate change and no single salient solution. As Barrett and Chambers (1998:15) put it:

A fuller discussion of conventional economic analyses in the context of climate change can be found in IPCC (1996c:ch.8, 9) and Grubb et al. (1999:Appendix II). 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, 1991/98; Oberthiir, 1999a).

64 “The problem of climate change cuts across borders, sectors, government agencies, and conceptual divisions more than any other environmental issue, and affects everyone and everything from the ‘average Joe’ who drives to work every day in his private car, to the competitiveness of national economies”.

The pervasiveness of climate change, in turn, means that almost any group within civil society could be considered a stakeholder, thereby generating great public interest on the topic, even by the high standards of global environmental issues. The economic implications of climate change have, in particular, motivated a strong presence on the part of business and industry groups. As Barrett and Chambers (1998:15) comment, “international climate change negotiations have involved a greater number of actors as well as many more kinds of actors than any of the numerous sets of multilateral negotiations that have occurred in the post-war era”.

Long-term: Climate change has a “very long time horizon” (IPCC, 1996c:8) due to the inertia of the climate system and the long lifetime of some GHGs^’. This raises issues of intergenerational equity, as it is future generations that will suffer the worst consequences of past and present emissions (see Thompson and Rayner, 1998)^1 Conversely, mitigation of 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 (Susskind and Ozawa, 1992; Sebenius, 1993; Parson, 1997).

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 problems seriously. One interviewee (EUSECl) expressed this problem as follows:

E.g. 120 years for N 2 O, thousands of years for some long lived gases, such as sulphur hexafluoride (both of which are covered by the Kyoto Protocol). For a fuller discussion of intergenerational equity in the context of global environment problems, see Weiss (1989).

65 “With long range transboundary air pollution, things were easy. We have a forest, one night it rains, the next day you don’t have a forest, so... you say right, I have a problem. But this process of climate change is so slow, 50, 100 years or whatever years, it is always more difficult to persuade your politicians to react now, to do something now”.

Development: Climate change is fundamentally a development issue, as indeed are all global environmental problems. The development dimension of climate change is, however, particularly acute, given that fuel combustion and land-use change are intimately entwined with the process of modernization. Climate change thus challenges the mode of development followed since the industrial revolution and, in this sense, it lies “at the center of the sustainable development paradigm” (Hey, 2001:76). Although views differ over the costs of climate change mitigation, the changes required to prevailing economic and social structures and dynamics are indisputably great, and the political stakes - in both addressing climate change and not doing so - are therefore high (see box 3.2).

Box 3.2: A development issue

“It’s so tied with national interests, resources and energy... you are talking about an issue which has immense implications for how the world does business...” (ENGOl).

“The scale of what is being required to change is tremendous” (ACNG02).

“We always say that climate change is not really an environmental treaty, it’s an economic treaty” (ASSEC2).

As a development issue, climate change is also characterized by a strong north-south divide, generated in part by the differing contributions of industrialized and developing countries to climate change. In terms of historical responsibility, industrialized countries account for just under three-quarters of the

CO2 emitted since 1950 (Dunn, 1998). Current aggregate and per capita GHG emissions vary dramatically among countries, largely in line with level of development. In 1998, for example, Japan, with a similar sized population to

66 Nigeria, emitted 27 times more CO 2 from fuel combustion in aggregate, and 26 times more per capita (lEA, 2000)^1

Nevertheless, the aggregate GHG emissions of the most populous and industrialized developing countries are significant, although their per capita emissions remain very low. China, for example, is the second largest aggregate

emitter of CO2 from fuel combustion in the world after the US, but its per capita emissions are nine times smaller. Moreover, the emissions of most developing countries are increasing rapidly as their economies grow. The IPCC (1996c:97)

estimates that fossil fuel CO 2 emissions from developing countries will equal those of the industrialized countries in the Organization for Economic Co operation and Development (OECD) by 2020, even if their per capita emissions stay low.

However, if historical contribution to climate change is taken into account, the date at which developing country responsibility overtakes that of industrialized countries is set much further back (e.g. see submission from Brazil in FCCC/MISC, 1997c). As Brenton (1994:179) notes, “there is thus evident scope for disagreement... depending on whether you look at the issue from a gross [aggregate] or per capita point of view and in terms of current, future, or historic emissions” (see also IPCC, 1996c). The contrasting positions that have been taken by industrialized and developing countries based on these differing perspectives on emissions is illustrated by the cartoon in figure 3.1.

Equity: Another aspect of the development dimension of climate change is its inherent unfairness, which raises further questions of equity (intergenerational equity was discussed in the context of the long-term nature of climate change above). The smallest contributors to climate change, generally the poorer developing countries, are also the most vulnerable to climate change impacts, as they tend to be more reliant on agriculture, have weaker infrastructure and lack the

CO2 emissions from fuel combustion are used here as data for this source of emissions is the most accurate. Data on emissions of other GHGs and from other sources are often not available for developing countries. The choice of emissions data, however, can itself have political implications (see Agarwal and Narain, 1990; IPCC. 1996c; J. Gupta, 1997).

67 resources to take adaptation measures, such as building sea defences (Brenton,

1994; IPCC, 1996b, c). Many are also located in geographically vulnerable regions (e.g. low lying coastal zones), or are already suffering from environmental stress (e.g. from desertification or overpopulation) (IPCC, 1996b). By contrast, the larger emitters, mostly the richer industrialized countries, are typically less vulnerable, possessing modern economies that do not rely so much on the vagaries of the weather, more resilient infrastructure and more abundant resources to adapt.

Therefore, “those most vulnerable are to a large extent those contributing very little to its causes” (IPCC, 1996c:98) or, as Grubb (1995:467) puts it, “greenhouse gas emissions involve the rich imposing risks upon the poorer and more vulnerable”^\

Figure 3.1: Differing perspectives on emissions

A Th ir d -W o r l d P erspective A n In d u s t r ia l-C o u n t r y P erspective

Per Capita Carbon Emissions, 1997 Population (billions) (tons per person)

3 . 0 -

‘t I t i'rt * tt I , r* ' ' A r ifC,/ « /. Af i\ ^ t*t 1 1 i .L f t m Ÿ t ,

2 . 5 - '// (11 f r/. (. .s /

C . . '' .

20 -

Industrial Countries

15-

1 0 -

0 5 -

0 _

Developing"il Countries industriel Countries Developing Countries 4 ,7 4 8

Source: Dunn (1998).

Catastrophic potential:Finally, an important characteristic of climate change is the potential for irreversible and catastrophic change (IPCC, 1996c).

Irreversibility is a function of the long time lags involved, which mean that

For a more comprehensive discussion of equity issues relative to climate change, see Grubb (1995), IPCC (1996b:ch. 3) and Müller (1998).

68 “climate-induced environmental changes cannot be reversed quickly, if at all”

(IPCC, 1996e:28). Concern over catastrophic change is based on the possibility

that rising atmospheric concentrations of GHGs could force the climate system

into a different state in the relatively short-term. Rising average global

temperatures could, for example, force the Gulf Stream to change course, thus

leading to “a sharp drop in European mean temperatures” (IPCC, 1996c:208), or

even triggering a climatic ‘flip flop’, bringing on a new global ice age (Schneider, 1996). This potential for catastrophic change, whose impact would be immense

but whose likelihood is small and uncertain, is particularly difficult for policy

makers to integrate into their decision-making.

Despite the uniquely malign characteristics of climate change, governments

were able to reach agreement on an intergovernmental regime aimed at addressing

the problem. The next section examines the historical development of that regime, along with its nature and structure.

The climate change regime Historical development The climate change regime has a long scientific history, but a relatively short political one. The account of its historical development below is necessarily brief,

highlighting only the key landmarks. For more comprehensive analyses of the

political history of climate change, readers are referred to Bodansky (1993) and Paterson (1996). Analyses of the scientific evolution of the problem can be found

in Houghton (1994) and Agrawala (1998a).

The existence of the natural greenhouse effect was postulated by Jean

Baptiste Fourier as far back as 1827, while awareness of the possible effects on

the climate of fossil fuel consumption can be dated back to Svante Arrhenius, publishing in the late 19'^ and early 20'"^ century (Rowlands, 1995; Paterson,

1996). It was not until the early 1980s, however, that scientific concern began to emerge in the face of research results pointing to the potential severity of climate change (Bodansky, 1993). Such scientific developments, coupled with a confluence of other factors, including an unusually hot summer in the US in 1988, the discovery of the ‘hole’ in the ozone layer in 1987 and the successful adoption

69 of the Montreal Protocol on Substances That Deplete the Ozone Layer that same year, helped to propel climate change onto the political stage (Bodansky, 1993; Brenton, 1994). Climate change was raised for the first time in the UN General Assembly in 1988 (Bodansky, 1993).

Also in 1988, the World Meteorological Organization and UNEP jointly established the IPCC (Brenton, 1994; Agrawala, 1998a), which was to become the “central pool of knowledge” (Barrett and Chambers, 1998:16) for the climate change negotiations. By 1990, the IPCC had produced its First Assessment Report on the state of climate change science, warning that, although there were many uncertainties, human activity was leading to increased atmospheric concentrations of CO2 and rising temperatures (IPCC, 1990; Brack and Grubb, 1996). In December that same year, the UN General Assembly acted on the IPCC’s recommendations, endorsed by the Second World Climate Conference in November, and formally launched negotiations on a framework convention on climate change (UNGA, 1990). An Intergovernmental Negotiating Committee (INC) was convened under the UN General Assembly to conduct these negotiations, which resulted in agreement on the UN Framework Convention on Climate Change. The Convention was adopted on 9 May 1992, opened for signature later that year at UNCED and entered into force on 21 March 1994 (FCCC, 2000). The Convention can be seen as the founding legal text of the climate change regime. Key features of the regime are outlined below.

Substantive core^^ The substantive core of the climate change regime is based on an ultimate objective (Article 2^^); that is, to achieve:

“.. .stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system ... within a time-frame sufficient to allow ecosystems to adapt naturally ... to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner”.

For more detailed analyses of the substantive core of the climate change regime, see Bodansky (1993) and Hey (2001).

Unless otherwise stated, references to articles in this thesis refer to the UNFCCC (FCCC, 1992).

70 The substantive core also defines a set of principles to guide parties “in their actions to achieve the objective ” (FCCC; Article 3). These principles can be understood as seeking “to make explicit the dilemmas and dichotomies that are at the center of the climate change debate” (Hey, 2001:84), including uncertainty (through the ‘precautionary principle’) and the development dimension of climate change (through references to cost-effectiveness, sustainable development and sustainable economic growth). Equity considerations feature particularly strongly, including through the principle of “common but differentiated responsibilities”, which requires developed country parties to “take the lead in combating climate change and the adverse effects thereof’ (Article 3.1)^^, on the grounds of their greater historical contribution to climate change, their continuing higher emissions per capita, and their greater financial and technological capacity to address the problem (FCCC, 2000)

The principle of equity is, in turn, operationalized in the substantive commitments of the Convention, which divides states into two main groups. The 36 states^® listed in the Convention’s Annex I (so-called ‘Annex I parties’), include those that were members of the OECD in 1992 and states of the former Soviet Union and Eastern Europe (known as the ‘economies in transition’, or EITs). All other states - in effect, mostly the developing countries - are known as ‘non- Annex I parties’ (FCCC, 2000).

All parties are under a general obligation to address climate change by, for example, preparing national climate change programmes, facilitating technology transfer, cooperating in scientific research, and promoting public awareness on the topic (Articles 4.1, 5, 6). All parties must also make an inventory of their GHG emissions and report on the action they are taking under the Convention, although the timetable for reporting, and the required contents of those reports (known as ‘national communications’), is looser for non-Annex I parties (Article 12).

For a more detailed discussion of principles in international environmental law, see Sands (1995:ch.6). Including the European Community.

71 However, in accordance with the equity principles of the Convention, only the Annex I parties are subject to a specific commitment, albeit one phrased in highly convoluted language, to aim to return their emissions to 1990 levels by 2000. In addition, the OECD countries only, whose names are listed in the Convention’s Annex II and are therefore known as ‘Annex II parties’, are committed to supplying financial resources to developing countries to assist them in meeting their obligations under the Convention, and also to promoting the transfer of “environmentally sound technologies” to both EITs and developing countries (Articles 4.3, 4.4, 4.5, 11). However, the wording of these articles is loose and the scope of eligible funding closely circumscribed; as Bodansky (1993:527) notes, “developed countries ... wanted to ensure ... they would not be writing a blank check”.

Procedural component^^ In terms of its procedural component, the Convention establishes an institutional structure for the climate change regime, including a Conference of the Parties, two subsidiary bodies and a secretariat (see figure 3.2 below). This structure largely conforms to the common pattern found in global environmental regimes (Werksman, 1996; Churchill and Ulfstein, 2001; UNEP, 2001b)^°.

The Conference of the Parties (COP) is the “supreme body” of the Convention, which brings together all its state parties and is assigned the general function of keeping “under regular review the implementation of the Convention...” and making “...the decisions necessary to promote [its] effective implementation” (Article 7.2), as well as a number of specific tasks (Article 7.2(a)-(m)). The Convention stipulates that the COP should meet annually (unless parties decide otherwise).

This section aims to provide a brief, introductory overview of the procedural component of the climate change regime. Individual elements are then discussed in more depth in the empirical chapters that follow.

The Vienna Convention for the Protection of the Ozone Layer, the CBD, and the UN Convention to Combat Desertification, for example, all have similar (but not identical) institutional structures (see also discussion in Churchill and Ulfstein, 2001).

72 The two permanent subsidiary bodies of the climate change regime are the Subsidiary Body for Scientific and Technological Advice (SBSTA) and the Subsidiary Body for Implementation (SBI), which are required to provide advice to the COP on “scientific and technological matters” and “the assessment and review of the effective implementation of the Convention”, respectively (see Articles 9, 10). These meet more often than the COP, usually twice a year, to formulate recommendations to it (FCCC, 2000). Support to the COP and the

subsidiary bodies is provided by a secretariat (Article 8). The Convention also defines a financial mechanism to channel the financial resources provided by Annex II parties to developing countries, which is currently operated by the Global Environment Facility^\

Figure 3.2: The institutional structure of the climate change regime

COP (Decision-making)

SBSTA SBI (Advisory) Secretariat (Advisory) (Support)

Financial mechanism (GEF)

As well as the institutional structure outlined above, the Convention sets out some formal procedural rules. These include basic participation rules for parties and observers, including non-state organizations, in the work of the COP and its

More detailed discussions on the Global Environment Facility and funding under the climate change regime may be found in J. Gupta (1995, 1997) and Sjoberg (1996).

73 subsidiary bodies, as well as decision-making procedures in specific cases, namely, the adoption of amendments (Article 15), the adoption and amendment of annexes (Article 16), and (in less detail) the adoption of protocols (Article 17).

A second source of procedural rules for the regime is its draft rules of procedure (FCCC/CP, 1996d), which include a broad set of rules for the functioning of the regime, including for the conduct of business and decision making. Due primarily to disagreement over the voting rule for adopting substantive decisions, the draft rules of procedure have never been agreed (Werksman, 1999; FCCC, 2000). They are, however, applied at each session of the regime bodies, with the exception of the rule on voting, and therefore do, in practice, form part of the procedural component of the regime (Werksman, 1999; FCCC, 2000). Like its institutional arrangements, the procedural rules of the climate change regime, both in the Convention and the draft rules of procedure, are largely unexceptional in the multilateral environmental arena^^ - although there are variations among regimes - and are themselves founded on longstanding rules within the UN system.

Regime development As conceptualized in chapter 2, regimes are typically in a state of constant evolution. The climate change regime is itself “a fine illustration of the evolving nature of environmental regimes” (Boyer, 1999), with its institutions and procedures “designed to support... constant development and implementation ...” (Oberthiir and Ott, 1999:37; see also Mintzer and Leonard, 1994b). Indeed, this development began as soon as the Convention was adopted, as the INC continued to meet to prepare decisions to be taken at the first session of the COP (Berlin, March/April 1995), elaborating on the substantive and procedural provisions of the Convention. The decisions taken at COP I covered such issues as the mandate of the subsidiary bodies; guidelines for preparing national GHG inventories; guidance to the Global Environment Facility; the location of the Convention secretariat; and financial procedures for the regime (see FCCC/CP, 1995b).

Compare, for example, the rules of procedure for the ozone regime (UNEP, 2000) and the CBD (CBD, 1994).

74 In addition to this routine process of regime development, it was clear even during the negotiations on the Convention that its substantive commitments would not be sufficient to effectively address climate change, and would need to be strengthened over time. Negotiators therefore included review mechanisms within the Convention to enable new negotiating rounds to be launched, as scientific evidence and/or political will hardened. In doing so, they implicitly followed the so-called ‘framework convention - protocol’ approach for responding to climate change (Bodandsky, 1993; Susskind, 1994). That is, they negotiated a framework convention to establish general substantive obligations and basic procedural rules and institutional arrangements, on the assumption that protocols containing more specific commitments and detailed implementation mechanisms would later be negotiated and adopted (Bodansky, 1993). This legislative approach has become common in multilateral environmental agreements, and has been used to particularly good effect in the ozone regime, where the general 1985 Vienna Convention for the Protection of the Ozone Layer was soon succeeded by the more specific Montreal Protocol, which was itself later amended several times to strengthen its commitments (Szell, 1993).

The first of the review mechanisms in the Convention was triggered at COP 1 where, as mandated by Article 4.2(d), parties undertook a review of the commitment for Annex 1 parties to aim to return their emissions to 1990 levels by 2000. After protracted negotiations, the COP eventually concluded that these commitments were inadequate and, in a decision known as the Berlin Mandate (see box 3.3), launched negotiations on a “protocol or another legal instrument”^] that would strengthen commitments for Annex 1 parties, without introducing any new commitments for developing countries (FCCC/CP, 1995b)]^. These negotiations, which were conducted in the so-called Ad Hoc Group on the Berlin Mandate and concluded at COP 3 in December 1997 (see chronology), are at the heart of this thesis.

]] The Berlin Mandate did not specify the type of legal instrument to be adopted (see chapter 5). However, for the sake of readability, the thesis will refer to the ‘Protocol negotiations’ throughout. For a discussion of the highly contentious negotiations that led to this decision, see Arts and Rudig (1995), Grubb et al. (1999), Oberthür and Ott (1999) and Mwandosya (2000).

75 Box 3.3: The Berlin Mandate (decision 1/CP.l)

The COP, having reviewed [Annex I Party commitments] and concluded that [these] are not adequate, agrees to begin a process to enable it to take appropriate action for the period beyond2 0 0 0 ... through the adoption of a protocol or another legal instrument:

1. The process shall be guided... by ...: [equity, special circumstances o f developing countries, sustainable development, widest possible cooperation, comprehensive coverage, need for all parties to cooperate in good faith ]

2. The process will, inter alia:

(a) Aim, as the priority in...strengthening the commitments [of Annex I Parties]:

- To elaborate policies and measures, as well as - To set quantified limitation and reduction objectives within specified time frames, such as 2005, 2010 and 2020, for their [GHG emissions]...

(b) Not introduce any new commitments for non-Annex I Parties, but reaffirm existing commitments in Article 4.1 and continue to advance [their] implementation ... [....]

3. ... be carried out in the light of the best available scientific information including ... reports of the IPCC...

4. ... include in its early stages an analysis and assessment, to identify possible policies and measures for Annex I Parties ... [...]

6 . ... begin without delay ... in an open-ended ad hoc group of Parties ... which will report to the second session of the Conference of the Parties ... to ensure completion of the work as early as possible in 1997, with a view to adopting the results at the third session of the Conference of the Parties.

FCCC/CP (1995b)

THE INTRICATE PLOT OF THE KYOTO PROTOCOL NEGOTIATIONS

The specific malign characteristics of climate change, as discussed above, provided the basis for a highly intricate plot for the Kyoto Protocol negotiations, including multiple ‘sub-plots’ and ‘twists in the tail’. As a senior US negotiator

76 later remarked, “it was the mother of all negotiations”^^ The next part of this chapter sketches out the intricate plot of the Kyoto Protocol negotiations, outlining the key negotiating issues at stake. It then turns to the political dynamics generated by the differing preferences of the cast of the negotiations, principally the negotiating parties as main actors, but also the non-state organizations in the audience.

The key negotiating issues The Berlin Mandate itself set out a broad outline for the Kyoto Protocol negotiating plot, establishing three basic elements to be negotiated:

• Setting quantified emission limitation and reduction objectives (QELROs) - in other words, emission targets - for Annex I parties;

• Elaborating policies and measures for Annex I parties;

• Continuing to advance the implementation of existing commitments in Article 4.1 of the Convention for all parties.

A multitude of intricate issues emerged during the negotiations based on the above elements, reflecting the inherently multi-dimensional nature of climate change itself, as well as the contrasting preferences of parties who placed different items on the negotiating agenda. The main issues at stake during the Kyoto Protocol negotiations are summarized in box 3.4 below.

Pers. comm. (1999).

77 Box 3.4: Main issues at stake in the Kyoto Protocol negotiations

• Should the emission targets be le gaily-bindingl What should be their level and timeframel

• Should uniform emission targets be defined for all Annex I parties, or should these be differentiated according to national circumstances?

• Which GHGs should be covered - CO 2 only? CO 2 , CH4 and N2 O, the three main GHGs? Or all six major GHGs, also including hydrofluorocarbons (HFCs), perfluorocarbons and sulphur hexafluoride?

• To what extent should carbon sequestration through ‘sinks’ in the land-use change and forestry sector be permitted to offset emissions?

• Should 'flexibility mechanisms', such as Joint implementation and emissions trading, be adopted to reduce the costs of cutting emissions?

• What provisions should be included to deal with cases of non-compliancel

• Should compensation measures be put in place to assist developing countries who might be adversely affected by mitigation measures (e.g. oil exporters)?

• Should mandatory mitigation policies and measures be defined?

• What actions could form part of provisions to "continue to advance the implementation of existing commitments"!

• Should provisions be defined for developing countries to take on voluntary commitments!

• Should the Protocol, or an associated decision, launch post-Kyoto negotiations on new commitments for developing countries! This issue was rarely discussed explicitly, as developing countries considered it to be outside the Berlin Mandate. Nevertheless, it was still very much part of the negotiation plot.

Source: FCCC/TP (2000a)

These negotiating issues were only the most important, with many others also on the table. These included, for example, devising reporting and review guidelines under the Protocol, as well as agreeing institutional provisions to serve the new agreement. The Kyoto Protocol negotiation process thus encompassed a highly complex and intricate set of interrelated issues, including some - such as

78 compliance, emissions trading, joint implementation and compensation for lost revenue - that were virtually unprecedented in global environmental negotiations. Moreover, its content was both technical and political in nature; negotiating the treatment of carbon ‘sinks’, for example, or the GHGs to be covered by the Protocol, required complex technical knowledge, as well as awareness of political ramifications.

The political dynamics Individual negotiating parties and coalitions^® of those parties (see box 3.5^^) held a wide range of heterogenous preferences relative to climate change in general and to the issues outlined above in particular. These heterogeneous preferences were based on a mix of values and principles (largely derived from history, ideology and national policy styles) and perceived national interests (mostly a product of national circumstances, including contribution and vulnerability to climate change). These two were clearly linked, with the values and principles held by a party strongly influencing the perception of its national interests, and vice versa. The preferences of the negotiating parties were not fixed. It is indeed the essence of the negotiation process that they were subject to adjustment to enable the adoption of an agreement acceptable to all. It is the process through which these divergent preferences were eventually reconciled (if not resolved) that constructed the intricate plot of the Kyoto Protocol negotiations.

At the risk of simplification, this plot conflated three main axes of conflict or ‘sub-plots’: divergent preferences between industrialized and developing countries; among developing countries; and among industrialized countries. These three axes are used below to construct a brief account of the political dynamics of the climate change regime in general, and the Kyoto Protocol negotiations in particular. This account is necessarily general and does not go into

On coalitions, see Dupont (1996), also Zartman (1991:73), who claims that coalitions can help “tame complexity of multi-issue, multi-party negotiations”.

Box 3.5 describes the main coalition structure during the Kyoto Protocol negotiations. Alliances are constantly shifting, however, with new groups emerging and others becoming more or less active. During the post-Kyoto negotiations, for example, JUSSCANNZ metamorphosed into the ‘Umbrella Group’, the formal UN regional groups of Central and Eastern Europe became increasingly active and the least developed countries also began negotiating as a group.

79 the many differences between and within these groups on a myriad of specific issues. Nevertheless, it aims to give a flavour of the complex, and sometimes deep-seated, divergent preferences that the negotiations were required to address. More detailed analyses of the positions of different countries and coalitions in the negotiations may be found in Grubb et al. (1999:ch.2.1) and Oberthür and Ott (1999:ch.2), as well as FCCC/TP (2000a, b).

The north-south sub-plot A key axis of conflict in the Kyoto Protocol negotiations - as it has been since the inception of climate change politics - lay between the industrialized countries (the ‘north’) and the developing countries usually negotiating as the G- 77 and China (the ‘south’), institutionalized within the Convention’s Annex I/non- Annex I division^® (Bodansky, 1993; Grubb et al., 1999; Hey, 2001). The divide between the developing and industrialized countries is the product of, on the one hand, the specific development and equity dimensions of climate change discussed earlier in this chapter, in particular the differing implications of per capita, aggregate and historical emissions; and, on the other hand, the history and ideology of north-south politics within the UN system, where the rise of the global environmental agenda, triggered almost exclusively by northern concerns, provoked suspicion on the part of developing countries that it might threaten their development aspirations (e.g. see Agarwal and Narain, 1990; Brenton, 1994). At the most basic level, the north-south divide is located in the inescapable context of all global negotiations, that is, a fundamentally unequal world, with massive differences between (and, indeed, within) countries in terms of economic wealth, human development and institutional capacity (IPCC, 1996c; UNDP, 1998).

The terms north and south are used here, as they are by Bodansky (1993) and J. Gupta (1997), for stylistic purposes, while recognizing that they present a geographically imperfect view of the world. Moreover, although the G-77, the term ‘developing countries’ and the non-Annex I classification in the Convention do not exactly equate - some non-Annex I parties are not members of the G-77 (e.g. Israel, Mexico) and/or are not strictly speaking developing countries (e.g. Albania) - such anomalies are in a small minority. Therefore, the south/north, non-Annex 1/Annex I, G-77/other, developing/ industrialized country divisions, despite their crudeness, rerriain relevant.

80 Box 3.5: Main coalitions during the Kyoto Protocol negotiations

G-77 and China:The Group of 77, the main developing country coalition, was formed in 1964 during the New International Economic Order negotiations under the UN Conference on Trade and Development (UNCTAD). China regularly allies itself with the Group, which now numbers over 130 members. The country holding the annually rotating Chair of the G-77 in New York serves as Chair of the G-77 on climate change. During the Protocol negotiations, the Chairs of the G-77 were: The Philippines (1995); Costa Rica (1996); and the United Republic of Tanzania (1997). The Group operates according to a consensus rule; without consensus, no common position is articulated. Given the wide variety of interests it encompasses, however, it was common for individual parties and groups within the G-77 to also speak during the Kyoto Protocol negotiations, even when there was a common position.

AOSIS: The Alliance of Small Island States was formed in 1990during the Second World Climate Conference to represent the interests of low-lying and small island countries that are particularly vulnerable to sea level rise. It comprises some 43 states, most of them also members of the G-77. AOSIS regularly spoke as a group during the Protocol negotiations, often but not always through its Chair (Samoa, for most of the Protocol negotiations), although individual countries also intervened.

EU: The European Union maintains coordinated positions on climate change, usually speaking through its Presidency, which rotates every six months. During the Protocol negotiations, the following countries presided over the EU: Spain (late 1995); France (early 1996); Ireland (late 1996); Netherlands (early 1997) and Luxembourg (late 1997 - assisted by the Netherlands and the UK, the incoming presidency, in what was known as the ‘EU troika’). It was rare for individual EU states to speak during the Kyoto Protocol negotiations.

JUSSCANNZ: This group of non-EU OECD countries - JUSSCANNZ stands for Japan, US, Switzerland, Canada, Australia, Norway and New Zealand - acted as a loose, information sharing coalition during the Kyoto Protocol negotiations, without formal coordinated positions. Iceland and other OECD countries, such as Mexico, often also attended group meetings.

Other coalitions: Countries belonging to the Organization of Petroleum Exporting Countries (OPEC) regularly informally coordinate their positions in the climate change regime, but never speak as a group. The African Group, a formal regional group under the UN system, sometimes intervened as one during the Kyoto Protocol negotiations, but usually only for ceremonial statements. The EITs, although they also have a formal home in the Central and Eastern European UN regional group, very rarely negotiated together during the Protocol negotiations.

Sources: Avalle (1994); Djoghlaf (1994); Mwandosya (2000); FCCC (2000); G- 77 (2001); AOSIS (2001).

81 From the inception of climate change politics, the developing and industrialized countries have perceived the climate change problem using very different discourses based on contrasting perceptions, values and principles'^ The perception of developing countries has generally focused on climate change as a development issue, invoking equity as the fundamental principle for addressing it, and insisting that industrialized countries should first meet their own specific commitments under the Convention before imposing emission targets on developing countries (Vargas, 1994; Dunn, 1998; Grubb et ah, 1999; Oberthur and Ott, 1999). A key concern of developing countries has been that climate change mitigation should not be used to hinder their development. According to a Chinese interviewee, for example, “the main barrier [to the Protocol negotiations] for China was the fear that it would hamper the development of its economic growth”. Another dimension to the equity discourse of developing countries has been a strong focus on the importance of financial assistance and environmentally-friendly technology transfer from industrialized countries to help them address, and adapt to, climate change (see above citations).

The industrialized country discourse, however, has centered more on the global nature of climate change, and efficiency and cost-effectiveness as principles for addressing it. Industrialized countries have argued that reducing emissions tends to be cheaper in developing countries where resources are often used less efficiently, and therefore that these opportunities should not be wasted. According to this view, excluding developing countries from emission reduction action makes “economic nonsense” (Grubb et al., 1999:108). The careful drafting of the principles of the Convention (as discussed above) ensures that both these discourses of equity and efficiency are defensible within the normative framework of the regime, even though equity is dominant.

Such discourses were not uniformly articulated in the Kyoto Protocol negotiations, either among the developing or the industrialized countries. Among

For a fuller discussion of north-south issues in the climate change regime, see Agarwal and Narain (1990), J. Gupta (1997) and Dunn (1998).

82 industrialized countries, for example, European states tended towards greater sympathy for the equity discourse of the developing countries (Grubb et al., 1999). As one interviewee (ACNGOl) put it, “...developing countries were very much concerned about equity whereas [JUSSCANNZ] were concerned about flexibility. And the EU was shuffling uneasily between the two”.

Box 3.6: North-south mistrust

“[A major barrier to the negotiations was]...the o]d UN cronies - to put it bluntly - from the G-77 who ... saw things very much in terms of north-south polemics, and ... saw climate change, as another tool ... of imperialism, or something along those lines” (Jl).

“The main barrier ... was lack of trust between the two main negotiating groups [developing and industrialized countries]... there’s a whole history leading up to Kyoto from the Rio Convention of Annex I parties not really delivering on their ...promises” (AOACl).

North-South relations in the climate change regime have tended to be characterized by widespread mutual mistrust, and this spilled over into the Kyoto Protocol negotiations. On the one hand, developing countries tended to view with suspicion proposals coming from industrialized countries, fearing that these might be directed at imposing new commitments on them (J. Gupta, 1997). On the other hand, industrialized countries accused developing countries of obstructionism and of playing old-style ideological politics (see box 3.6). Such distrust was exacerbated by the history of (in)action under the climate change regime. By the mid 1990s, the GHG emissions of most industrialized countries had continued to rise since the adoption of the Convention, and most (the EITs being a notable exception) were not expected to meet the Convention aim of returning emissions to 1990 levels by 2000 (FCCC/CP, 1996f). US CO 2 emissions alone rose by more than 5% between 1990 and 1995 and the US projected that, by 2000, CO 2 emissions would be 10-12% higher than in 1990 (Anderson et al., 1997b). Moreover, many developing countries considered that Annex II parties had not been sufficiently forthcoming with financial and technological assistance (see decision 9/CP.2; FCC/CP, 1996c). The combination of rising emissions and mediocre efforts on finance and technology transfer led to accusations that the

83 industrialized countries were not seriously committed to taking the lead in addressing climate change, as required of them by the Convention.

The differing discourses of, and mistrust between, north and south played out over two main issues in the Kyoto Protocol negotiations. Firstly, there was the (largely unspoken) question of whether to launch a post-Kyoto negotiation process on new developing country commitments (see Grubb et al., 1999; Oberthür and Ott, 1999; Mwandosya"^®, 2000). This was proposed by the US, with backing from several JUSSCANNZ parties, while the G-77 and China was united in vociferously strong opposition to it. An only slightly less controversial derivative of that issue was a proposal to define provisions for developing countries to take on voluntary commitments under the Protocol. This was strongly supported by Annex I parties, but opposed for most of the process by the majority of developing countries, who saw it as pressure to take on new commitments (FCCC/TP, 2000a).

A second key north-south issue centered on differing perceptions of the ‘flexibility mechanisms’, notably emissions trading and joint implementation with developing countries'". While these were generally supported by industrialized countries, especially by JUSSCANNZ, on the grounds of efficiency and cost- effectiveness, many developing countries feared they would allow Annex I parties to evade their own commitments, grant them a ‘right to emit’, or impose new commitments on developing countries ‘through the backdoor’ (see Agarwal and Sharma, 1997; J. Gupta, 1997; Depledge, 1999; Grubb et al., 1999; Mwandosya, 2000). As one developing country interviewee (ENG02) explained, one of the main barriers to the Protocol negotiations was “the fear... that the North would like to use every opportunity to shift responsibility for cleaning the environment to the South”.

Mwandosya served as the Tanzanian Chairman of the G-77 and China during 1997. Under emissions trading, a country that found it easy to meet its emissions target could ‘sell’ part of its allowed emissions to a country finding it more difficult to do so (Depledge, 1997). Under joint implementation, a party could implement an emission reducing project in another party where the costs of cutting emissions are lower, and receive credit for the emissions reduced to offset against its own target (IPCC, 1996c).

84 The south-south sub-plot Climate change has challenged the traditional unity of the G-77 and China due to the contrasting national circumstances of developing countries relative to the problem, and therefore the differences in their concrete perceived national interests (see Dasgupta, 1994; Djoghlaf, 1994; Vargas, 1994)^1 These differences revolve principally around vulnerability to climate change on the one hand, and vulnerability to mitigation action on the other.

The most diametrically opposed circumstances in the climate change regime are those of AOSIS on the one hand, and OPEC on the other. The AOSIS countries are highly vulnerable to climate change, being threatened by sea level rise, salt water encroachment into agricultural land and drinking water, storm surges and, for some, significant loss of land (IPCC, 1996b). For these countries, the costs of climate change dramatically outweigh the costs of mitigation action. OPEC countries perceive their situation very differently. All of them are highly dependent on oil exports and fear that climate change mitigation policies will adversely affect their economies (Kassler and Paterson, 1997). They are also relatively high emitters of GHGs due to their oil production industries, both in aggregate and per capita terms, and do not generally consider themselves vulnerable to climate change (Oberthür and Ott, 1999). For OPEC countries, therefore, the costs of climate change mitigation action are perceived to be much greater than the impacts of climate change itself.

The contrasting national circumstances of AOSIS and OPEC illustrate well the great diversity of interests in climate change politics, where two groups of countries perceive themselves to be negotiating for their (actual or economic) survival, yet on radically different grounds. These sharp differences were reflected in very different preferences in the Kyoto Protocol negotiations. AOSIS was the first group to put forward a proposed emission target, advocating a 20% cut in CO 2 emissions by 2005. OPEC states, in contrast, highlighted scientific uncertainties, sought to draw attention away from fossil fuel CO 2 emissions to

Indeed, the G-77 did split at COP 1, with India leading a ‘Green Group’ of 72 developing countries - excluding the OPEC states - supporting what became the Berlin Mandate (Mwandosya, 2000).

85 sinks and other gases, and called for compensation against the possible adverse impacts of climate change mitigation measures on their economies (FCCC/TP, 2000a). Their fervour in doing so led to accusations of filibustering at best and obstructionism at worst (Arts and Rudig, 1995; Rowlands, 1995; Gelbspan, 1997). According to Oberthür and Ott (1999:26), “OPEC members, and Saudi Arabia and Kuwait in particular... missed few opportunities to slow down progress”.

The remainder of the 80 or so developing countries in the climate change regime form a varied group, also with differing national circumstances centered on relative perceived vulnerability to climate change or perceived threat to their development prospects. They include middle income countries, some of which had recently joined or were hoping to join the OECD at the time of the Kyoto Protocol negotiations, such as Singapore, Mexico and South Korea (the latter two not being members of the G-77). They also include the large, economically dynamic developing countries, notably Brazil, China, India and Malaysia, which still face considerable problems of poverty but whose total GHG emissions are significant, even though their per capita levels remain low. The situation of these countries contrasts with those of the least developed countries (LDCs) of Africa and Asia, whose aggregate, as well as per capita, GHG emissions are low and whose existing precarious economic and social situation leaves them particularly vulnerable to climate change impacts. A range of developing countries, such as those from Central and Latin America, lie somewhere in between, confronted with the threat of climate change (e.g. from tropical storms), yet also concerned that their development should not be impeded.

Several developing countries also maintained positions on the basis of very specific national interests during the Kyoto Protocol negotiations. Costa Rica, for example, did not share the G-77 opposition to joint implementation, having invested heavily in its forests with the aim of selling carbon offsets to OECD countries. There were also many developing countries who did not participate actively in the negotiations, either because they lacked the capacity and knowledge to do so, or because their government did not afford the issue much priority (Hey, 2001). These delegates often came to the negotiations with what

86 J.Gupta (1997) terms a “hollow mandate”, that is, simply to observe and report back on proceedings.

Despite their differing national circumstances and perceived national interests, the G-77 and China exerted great efforts to preserve unity in the Kyoto Protocol negotiations through a focus on values and principles. As Grubb et al. (1999:35) comment, “however disparate their real interests and perspectives, these countries feel that their only source of strength lies in numbers and unity when faced with the might of the OECD”. Mwandosya (2000:69) tellingly explains that “if you can divide the Group of 77 and China, then you have a weak negotiating block and you can get what you want”. The tension between the desire for unity of the G-77 and China, and the massive differences between its members, was a major sub-plot in the Kyoto Protocol negotiations. It was expressed, in particular, over the provisions, originally proposed by AOSIS, to allow developing countries to take on voluntary commitments, and over the OPEC proposal for compensation against possible economic losses resulting from climate change mitigation.

The north-north sub-plot The main axis of the north-north sub-plot in the climate change regime revolves around the contrasting preferences of the EU on the one hand, and JUSSCANNZ on the other'l

The preferences of JUSSCANNZ countries are largely dominated by their concern over the costs of tackling climate change. Some JUSSCANNZ countries (e.g. Japan, New Zealand, Norway, Switzerland, Iceland) already enjoy relatively high energy efficiency and/or an energy mix dominated by low carbon energy sources. Their GHG emissions per unit of gross domestic product (GDP) and per capita are therefore below the OECD average and they face relatively high marginal abatement costs (Anderson et al., 1997b). A second group, including Australia, Canada and the US - the so-called “new world” countries (Anderson et al., 1997b; Grubb et al., 1999) - face very different national circumstances; that is.

For a more detailed discussion of factors influencing the positions taken by certain Annex I parties, see Kawashima (1997).

87 relatively low energy efficiency and an energy mix dominated by fossil fuels (in some cases including coal, the highest carbon emitting fuel), as well as growing populations and large geographical areas, leading to emissions per unit of GDP and per capita higher than the OECD average. These countries have argued that they too faced high costs in mitigating climate change due to the significant structural shifts required from their energy intensive economies.

Concern over the costs of mitigating climate change led both groups of JUSSCANNZ"^ countries to advocate relatively weak emission targets, many of them within a framework of differentiated commitments. The US, for example, proposed to stabilize emissions at 1990 levels by the period 2008-2012 (in effect extending the Convention commitment), while Japan proposed a total reduction of -5%, but differentiated among Annex I parties, granting itself a lower target of around -2.5% (FCCC/TP, 2000a). JUSSCANNZ countries also supported - to varying degrees - flexibility in meeting emission targets, for example, advocating widespread use of flexibility mechanisms such as joint implementation and emissions trading, and opposing mandatory and coordinated policies and measures (Grubb et al., 1999; Oberthür and Ott, 1999). This is not to suggest that all JUSSCANNZ parties held common views; advocates of differentiation, for example, supported contrasting criteria as a basis for setting emission targets, usually to give themselves lower targets (see FCCC/TP, 2000a). Moreover, each country faced its own individual political situation. The US, for example, was particularly open to lobbying by powerful and well-funded fossil fuel industry groups, which had led it to take a much more ‘laggard’ position in the climate change regime compared with its strong leadership in the ozone negotiations'^^

The FU, for its part, spans countries with a wide range of individual circumstances, including its own divide between the richer, more developed northern European states and the poorer, less developed south (Grubb et al., 1999). The 15 FU member states encompass both relatively energy efficient (Netherlands, Sweden) and inefficient (Greece, Portugal) nations, as well as

Switzerland is an exception, with its preferences generally oriented more to those of the EU. For more on the US position on climate change, see Von Moltke (1996) and Rayner (1991).

88 countries with both a low carbon fuel mix (Sweden, Finland, France) and high usage of coal (Denmark, Germany) (Anderson et al., 1997a). However, the range of emissions per capita and per unit of GDP is largely within the extremes of the JUSSCANNZ countries discussed above. Moreover, at the launch of negotiations, two EU members (UK and Germany) were experiencing significant downward trends in their GHG emissions, in contrast to almost all other OECD countries. In the UK, this was due to the ‘dash for gas’ prompted by the rapid decline of the coal industry, while Germany had benefited from cheap emission reduction opportunities in the highly inefficient former Eastern Germany (Anderson et al., 1997a). Another important dynamic in the EU is the activism of environmental NGOs, along with the influence of green parties in parliaments across Europe (Oberthür and Ott, 1999).

This conjunct of factors prompted the EU to position itself as an environmental leader, advocating one of the strongest targets proposed in the negotiations: a 15% cut in CO 2 , CH 4 and N2 O by 2010 (FCCC/TP, 2000a). In contrast to JUSSCANNZ, the EU strongly supported the elaboration of mandatory and coordinated policies and measures but took a lukewarm attitude to the flexibility mechanisms, fearing they might adversely affect environmental integrity, and sought to impose limits on their use (Depledge, 1999). The EU, however, was rarely able to translate its ambitions as environmental leader into meaningful leadership in the negotiations. Divisions among its member states and its cumbersome internal decision-making procedures often made reaching agreement on a common position a lengthy task (see Gupta and Grubb, 2000). The EU could therefore be a frustrating negotiating partner, being unable to respond promptly to the proposals of others, and failed to take on the desired mantle of effective leadership.

The differing preferences of the EU and JUSSCANNZ in the Kyoto Protocol negotiations were based not only on concrete perceived national interests, but also on contrasting values and principles relating to regulation and the market. The EU was more comfortable with the concept of coordination and government intervention than most of its JUSSCANNZ counterparts, stemming from the generally greater degree of government intervention in most individual European

89 countries, as well as the EU’s history of coordination and gradual integration spanning almost half a decade (see chapters in O’Riordan and Jaeger [1996] and Gupta and Grubb [2000]). The EU’s approach to the negotiations also reflected its political make-up, that is, including some small economies that could not unilaterally implement climate change policies without significant loss of competitiveness. The EU worldview thus contrasted sharply with that of the new world countries in particular, whose dominant conceptual framework, based on their political and economic contexts, focused on flexibility rather than regulation, and on market mechanisms rather than government intervention.

The final group of countries within the north are the EITs. At the launch of negotiations, these countries were in the unusual position of having experienced deep cuts in their emissions in the early 1990s, due to economic collapse in that period. Prior to this collapse, the EITs had been among the most carbon intensive economies in the world, with CO2 emissions per unit of GDP 10 or 20 times higher than those of the EU (Househam et al., 1998). The EITs did not articulate a common position in the Kyoto Protocol negotiations. The Russian Federation and the Ukraine sought to negotiate targets that would allow their emissions to grow as their economies recovered, while the Eastern European countries hoping to join the EU (the ‘accession countries’) generally supported the EU negotiating position (Oberthür and Ott, 1999).

The non-state organizations Non-state organizations have played an important role in the climate change regime; although they remain in the audience, they are still deeply involved in the drama. Their strong presence can be understood as part of a broader rise in the activities of NGOs in the multilateral arena, especially, but not exclusively, in the environmental field (Yamin, 2001). The non-state audience in the climate change regime is highly diverse, comprising a wide range of special interest, advocacy and academic groups covering every possible shade of opinion. In terms of both numbers and activity, the two main communities are the environmental non governmental organizations (ENGOs) and the business and industry non governmental organizations (BINGOs), although neither of these is itself homogeneous (Faulkner, 1994; Rahman and Roncerel, 1994; Taalab, 1998).

90 The BINGOs were particularly diverse during the Kyoto Protocol negotiations, spanning three main groups. At the more progressive end of the spectrum lay ‘green’ business, including the ‘sunrise’ renewable energy industries, along with insurance companies (see Leggett, 1999), who recognized climate change as a potential business opportunity and urged decisive action on the part of governments (Newell and Paterson, 1996). The middle ground was occupied by moderate groups, which accepted the science of climate change and called for a prudent, cautious approach to mitigation (see Taalab, 1998; also Oberthür and Ott, 1999; Grubb et al., 1999). At the other extreme lay the fossil fuel, mostly US-based, industries such as the Global Climate Coalition, known as ‘grey’ BINGOs or the “carbon club” (Oberthür and Ott, 1999), who supported only the weakest action on climate change, stressing economic costs and scientific uncertainty (Taalab, 1998). Some of these BINGOs openly opposed the negotiations, seeking to exert influence not only on their own national governments but also working through the OPEC states (Gelbspan, 1997; Leggett, 1999; Newell, 2000). Chief among these were the Climate Council, a US-based lobby group run by Don Pearlman, a partner in a Washington law firm, which was widely believed to be a front for fossil fuel interests and US energy companies, working with OPEC states to block progress in both the IPCC and the climate change regime (Brown, 1996; see also McCaughey, 1996; Gelbspan, 1997; Leggett, 1999; Oberthür and Ott, 1999).

The ENGOs were more united in their views on climate change and the Kyoto Protocol negotiations, universally accepting the science of climate change and campaigning for strong commitments on the part of governments and business to address the problem (Taalab, 1998). Inevitably, however, there were some differences among the ENGOs regarding specific issues in the negotiations, such as joint implementation and emissions trading, often reflecting “cultural differences between the new and the old world” (Oberthür and Ott, 1999:76).

Given the scientific and technical content of the climate change issue, another key non-state group in the climate change regime is the scientific community, comprising individuals from both research institutes and intergovernmental

91 organizations (Barrett and Chambers, 1998). A broad distinction can be made between mainstream scientists involved in, or sympathetic to, the IPCC process, and so-called “climate sceptics” (Oberthür and Ott, 1999) challenging the existence, human influence on, or problematic nature of, climate change. Just as the mainstream scientists played an important role during the Kyoto Protocol negotiations in supplying information aimed at devising a substantively meaningful agreement, the sceptic scientists took on an equally significant role in providing justification for those wanting to delay action (Gelbspan, 1997).

Many social science academic NGOs are also involved in the climate change regime, providing advice to negotiators and injecting new ideas into debates. During the Kyoto Protocol negotiations, many of these took an environmentalist, even activist stance, so that some research institutes - such as the London-based Foundation for International Environmental Law and Development which provided advice to AOSIS, the German-based ECOLOGIC and the US-based World Resources Institute - were almost indistinguishable from ENGOs (Oberthür and Ott, 1999).

A variety of other NGOs, without obvious predetermined positions on climate change, were also active during the Kyoto Protocol negotiations, including local authorities (represented by the International Council for Local Environmental Initiatives), religious groups (in particular the World Council of Churches) and parliamentarians (represented by the Global Legislators for a Balanced Environment). These adopted a progressive position, akin to those of ENGOs. In contrast, several groups aligned themselves more with grey business, including US-based trade unions (fearing job losses) and lobby groups such as the US-based Sovereignty International (opposed to any measures negotiated within the UN).

A different group of non-state organizations are the intergovernmental organizations (IGOs) such as the International Energy Agency (IEA), as well as UN bodies, such as UNCTAD and the UN Development Programme. During the Kyoto Protocol negotiations, representatives from these IGOs focused mostly on providing specialist advice or monitoring developments of interest to their activities (Oberthür and Ott, 1999). Finally, the climate change regime tends to

92 attract a high media presence, and this was certainly the case for the Protocol negotiations, especially at the more high profile sessions (see Newell, 2000).

The personal dimension The personalities of negotiators - and key NGO representatives - were also important in shaping the dynamics of the process, with the cast of the Protocol negotiations including some highly individual protagonists. As one interviewee (AOACl) commented, “there are a lot of prima donnas”. The importance of personalities was perhaps accentuated by the ‘hollow mandate’ of many developing country delegations, which opened up room for the greater exercise of personal discretion by their negotiators. According to one interviewee (Jl):

“A number of these negotiators I don’t even think were really representing their countries at all. .. .personalities in that sense were a barrier and in many other cases helped to facilitate as well. The negotiations from the Chairman down were definitely characterised by personalities”.

ANALYZING THE PLOT

In sketching the plot of the Kyoto Protocol negotiations, this chapter has thrown light on the many challenges facing that process. Firstly, the Protocol negotiations were challenged by great complexity, generated by the malign nature of climate change itself, the large number of contentious issues under negotiation, several of which were unprecedented, and the broad range of heterogeneous preferences of the negotiating parties. According to ‘Homans’Maxim’ a large number of issues should, in theory, generate greater potential for achieving an integrative outcome with joint gains for all (Zartman, 1994b). There was the danger, however, that this potential would not be realized through sheer inability to manage the resulting complexity. The technical content of the negotiations heightened this danger. This is borne out by interview responses, where complexity was overwhelmingly identified as a barrier to the negotiations (see

“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 outcome” (Homans, 1961; cited in Sjdstedt et al., 1994a:8).

93 box 3.7). Only one interviewee (EUl) mentioned the multi-issue nature of the negotiations as an opportunity.

Box 3.7; The complexity of the Kyoto Protocol negotiations

“You’re talking about 6 greenhouse gases, you’re talking about land-use change, and you’re talking about introducing mechanisms into an international agreement that’s really never happened before” (ENGOl).

“The Montreal Protocol was a lot easier, because ... we were actually only negotiating single issues... Whereas here ...you’re bringing in different bits of packages here and there... you’re always going to get someone not giving up on something... the pure intensity, complexity, and interlinking of the issues meant that it was 100 times more complicated than anything I’ve been involved in before” (BINGOl).

“[it was] a quantum leap in the complexity of international environmental agreements” (A0SIS2).

“The technical substance of the agreement was much greater than most of the other global environmental agreements over the last 15-20 years, in fact it made them seem rather simplistic instruments” (EU2).

Secondly, the negotiations faced the challenge of a strong tendency to competitiveness rather than cooperation among the negotiating parties, which had displayed itself in climate change politics from their inception. This was partly the result of the high political stakes of climate change, including concerns over national economic interests and competitiveness, as well as the long time horizon of the problem, which led to a focus on short-term costs rather than on benefits that would only accrue in the future. The tendency to competitiveness was also a product of the north-south divide to the negotiations, where the imperative of global cooperation struggled against differing discourses and a history of mistrust. Competitiveness was not, however, the preserve of the north-south divide, with ‘internecine’ battles also among the OECD parties - for example, over the dominance of market versus regulatory mechanisms -despite their traditionally closer economic and political ties.

The most extreme case of competitiveness was that of the OPEC parties, whose negotiating positions were based on a stronger readiness to obstruct than to

94 cooperate. The conflictual nature of relationships between the negotiating parties was in turn reflected and magnified in the deep chasm between environmental NGOs on the one hand and the fossil fuel BINGOs on the other. The schism in the scientific community between the mainstream scientific majority and the sceptic minority also mirrored this division. Putting these elements together, a particularly unenviable feature of the Kyoto Protocol negotiations - and of the climate change regime more broadly - was the presence of an alliance of obstructionist forces, including carbon intensive industry groups, sceptic scientists and negotiating parties, whose goal for the negotiation process was “simply to slow down the business of doing something ... as much as possible” (Brown, 1996:176). At a fundamental level, therefore, the negotiations had to overcome the fact that an influential minority of negotiating parties, assisted by well-funded non-state organizations, in fact did not support the goals of the negotiation and sought to block an outcome; that is, as discussed in chapter 2, they were not negotiating in good faith.

OPEC, however, was not the only group charged with negotiating in bad faith; some Annex 1 parties were also accused of doing so, on account of their apparently mediocre efforts to implement the Convention, weak proposed emission targets and negotiating demands that sought to bring in developing countries (Tiempo, 1997; Barrett and Chambers, 1998). That is, while Annex 1 parties shared the collective goal of reaching agreement, they were perceived to be seeking an agreement that did not conform to the negotiating mandate or would have no substantive meaning. The importance of perceived bad faith was a key barrier to the negotiations cited by many interviewees (see box 3.8).

Another difficulty facing the negotiations was the vacuum of meaningful leadership on the part of any negotiating party, with potential leaders lacking either the will or ability to take on such a role. As discussed above, the EU’s internal complexities meant that it was ineffective at taking the lead beyond proposing a strong target. For its part, Japan was hampered by its conciliatory diplomatic style and insufficient confidence in the international arena (see Oberthür and Ott, 1999), while the position of the US on climate change had always veered towards laggard rather than leader, and AOSIS had neither the

95 political nor economic clout to transform its strong environmental preferences into meaningful leadership.

Box 3.8: The impact of bad faith

“Some parties were out to stall progress completely on the Kyoto Protocol, and that would be certainly be OPEC” (Jl).

“You can’t assume countries have the best interests of the process at heart” (SECl).

“Some parties didn’t want a Protocol... everybody knows which these parties are” (EITl).

“[a key barrier was] lack of political will among the key players in Annex I parties” (NAIAOACl).

“It’s not a process where everyone has the same or at least similar goals in mind...so we don’t have the same motivation to reach agreement” (NAIAOSISl).

“In Kyoto, we hope at last to see reciprocated [from the Annex I parties] the same good faith we have shown ... without backdoor attempts to divide, to instill doubts, to misinform...” (G-77 Chairman, closing statement to AGBM 8 [AGBM 8:1997g]).

These challenges faced by the Kyoto Protocol negotiations suggest that there was considerable room for organizational elements to make a difference to the process by promoting the achievement of the negotiating goal; we now turn to an empirical analysis of these organizational elements and their effectiveness in carrying out this task.

96 CHAPTER 4

THE PRODUCTION TEAM: THE PRODUCERS, PRODUCTION ASSISTANTS AND STAGE MANAGERS

INTRODUCTION

We begin this case-study of the organization of the Kyoto Protocol negotiation process with an analysis of the production team: the presiding officers (producers), AGBM bureau (production assistants) and secretariat (stage managers). Given that the actions of these players, especially the AGBM Chairman and secretariat, shaped every facet of the organization of the negotiation performance, they are central to all the empirical chapters of this thesis. This first empirical chapter thus sets forth an analytical overview of the nature of their roles, focusing particularly, but not exclusively, on the effectiveness criterion of provision of leadership, and skill and energy. The chapter begins by examining the role of the presiding officers^^\ including the AGBM Chairman and the Japanese presidency of COP 3"^^ before moving on to the AGBM bureau^^ and the secretariat.

THE PRODUCERS: PRESIDING OFFICERS

The formal mandate and functions of presiding officers are set out in the draft rules of procedure of the climate change regime (FCCC/CP, 1996d). The foundation stone for the work of a presiding officer is impartiality (Lang, 1989a; rule 22^°). Building on this foundation, the presiding officer’s mandate rests on a delicate balance between authority and deference relative to the negotiating parties. On the one hand, the draft rules state that the presiding officer “shall have

The presiding officers of informal groups are addressed in chapter 6. Given that the COP Presidency rotates annually, there were three incumbents during the negotiations. This chapter, however, focuses only on the most important presidency, that of COP 3 held by Japan. This chapter will not specifically address the COP bureau, which, at the time of the Kyoto Protocol negotiations, performed only a limited and passive role in the regime. Since then, however, it has become a much more active player, illustrating the importance of personalities in the role of bureaux. Unless otherwise stated, the reference for rules of procedure cited in this thesis is FCCC/CP, 1996d.

97 complete control over proceedings and over the maintenance of order thereat”, on the other hand, they caution that s/he ''remains under the authority of the Conference of the Parties” (op. cit., emphases added). Presiding officers are therefore granted a fragile mandate, which must be managed with care.

The draft rules of procedure outline several specific functions for presiding officers, which are common in the multilateral arena (Kaufmann, 1988; Lang, 1989a). These include the following:

• Declare the opening and closing of sessions, preside over meetings 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 of order (with the possibility of challenge) (rules 23.1, 34); and • 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 promoting the reaching of agreement (Lang, 1991), in other words, the exercise of process-oriented leadership. In a letter to the COP 2 President, the Executive Secretary explained, “the political functions of the President are not set out in writing, but are expected to include leadership in seeking consensus ...” (Zammit Cutajar, 1996a). Such an informal role opens up a wide, though not neatly defined, potential space for action. According to Lang (1989:36), “the informal powers 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 ...”. However, he goes on to warn that “the extent to which a presiding officer may use most of his informal powers depends on the permissive consensus of the participants ... the powers of a presiding officer are extensive and fragile at the same time”.

Of all the organizational elements considered in this thesis, the role of the presiding officer is viewed in the literature as holding the greatest potential to

98 impact on a negotiation (Kaufmann, 1988; Young, 1991; Schermers and Blokker, 1995). This view is backed up by numerous cases in the empirical literature, where the actions of a skilful presiding officer contributed to a successful negotiation, such as Tommy Koh in the Law of the Sea and UNCED negotiations (see Sebenius, 1984; and Chasek, 1994; respectively), while less judicious chairing placed obstacles to agreement (e.g. see Gajentaan [1989] on the UN General Assembly Special Session on the Critical Economic Situation in Africa). Lang (1989:39) suggests that, while the contribution of even a particularly activist presiding officer is unlikely to exceed “ten percent of the total impact of all negotiators ... in some instances ... this ten percent makes the difference between success or failure”.

The AGBM Chairman

Estrada: “Are you going to object, Mrs. Castro Muller?” Castro Muller: “After that tone, I dare not. Sir!” (AGBM 3, 1996c)

Ambassador Raul Estrada-Oyuela, Chairman of the AGBM, assumed a highly active role in the Kyoto Protocol negotiations, exercising vigorous process- oriented leadership throughout the process. Commentators on the negotiations are unanimous over Estrada’s pivotal contribution to the reaching of agreement on the Protocol, and several also point to his influence over its content (Ott, 1997; Grubb et al., 1999). Oberthür and Ott (1999:84), for example, maintain that “he assumed a leadership role that created momentum and pushed negotiators towards meaningful solutions” and that “any agreement would have taken on quite a different form without the leadership of the ‘Hero of Kyoto’” (op. cit.:271). The Executive Secretary, in turn, in his report to UN Under-Secretary-General Nitin Desai on COP 3, commented, “I am convinced that, without his skilful and decisive leadership of the negotiations, a satisfactory outcome would not have been achieved” (Zammit Cutajar, 1997b). Responses from almost all interviewees support the view that Estrada was the most critical single organizational factor in the negotiations (see box 4.1).

99 Box 4.1: Estrada: The hero of Kyoto?

"...we wouldn’t have had a Protocol without Estrada” (BINGO 1).

"... no single person made an impact on the negotiations as Estrada did” (ACNGOl).

"I wouldn’t say that we couldn’t have done it without him, but it might have been a lot more difficult!” (EUSECl).

"He was absolutely lynchpin for keeping the negotiations together, for keeping them on track” (AOACl).

Background and appointment Estrada was designated Chairman by COP 1 on establishment of the AGBM (FCCC/CP, 1995a), thus avoiding potentially lengthy election wrangles and allowing the AGBM to make a prompt start. His appointment was noteworthy in being founded on his proven skills and experience as former Chairman of the INC, rather than as part of a political deal among the UN regional groups (see discussion on the AGBM bureau below). His effective past performance ensured that he began his tenure as AGBM Chairman with a stock of trust and confidence, as expressed, for example, in opening statements by parties at AGBM 1 (AGBM I, 1995b). Estrada remained in his post throughout the AGBM negotiations and, at COP 3, was designated to chair the Committee of the Whole (CoW), which conducted the final negotiations on the Protocol (FCCC/CP, I997g). This continuity was critical; Estrada was able to plan the negotiations strategically, develop an in-depth understanding of the negotiation process and build relationships with delegates, while parties became accustomed to his chairing style, thus stabilizing expectations and enhancing the efficiency of the process (see Szell, 1993)'*.

" See Appendix C on the post-Kyoto negotiations for an example of a process that suffered from lack of continuity in its presiding officers, and where the presiding officer charged with completing the final negotiations came from a very different background to that of Estrada.

100 Estrada’s nationality - Argentina being a non-Annex I party and member country of the G-77 - played a key role in his chairmanship. As a member of the G-77, Estrada enjoyed a degree of goodwill from that Group which an Annex I party chair would have found difficult to acquire. He also came with a clean slate of a priori bias towards any of the industrialized countries. Furthermore, as a developing country national, Estrada had more latitude in his dealings with developing countries, being able, according to one interviewee (Watson), to “speak and address both developed and developing countries”^l According to a European delegate, “the developing countries can be rude to us and each other, but we [the Annex I parties] can’t be rude to them” (pers.comm., 2000). Estrada was thus able to play out his role as the producer of the negotiations with less risk of damaging his fragile mandate.

An important facet of Estrada’s background was his career in Argentina’s Ministry of Foreign Affairs, where he served as Ambassador to China throughout most of the negotiation process. Estrada was certainly “no stranger to global negotiations” (Mwandosya, 2000:23). Having represented Argentina in several UN negotiations, he was a trained and experienced multilateral diplomat with wide experience of the idiosyncrasies of the UN system. Moreover, having chaired the INC negotiations for over two years, he had acquired a deep experience and understanding of the specificities of climate change politics, their history, dynamics and sensitivities. The corollary of Estrada’s diplomatic and political background was that he did not possess technical expertise in climate change matters, thus naturally focusing his role towards procedural, rather than substantive, process-oriented leadership. For one interviewee (EU2), lack of technical knowledge was not a flaw. He noted:

“I think one of the greatest formulas for disaster in a multilateral negotiation is having a person who’s a super technician in charge. Because the use of those skills has all the makings of creating friction... perhaps being too possessive of ideas and therefore inflexible, because after all you know the subject so well you know you are right.

This point is supported in the literature, with Pruitt (1981), for example, noting that it can be helpful for presiding officers to be closer to weaker parties.

101 Estrada^s roles in the Protocol negotiations • Inspirational leadership One of Estrada’s key contributions to the negotiation process was a sense o f mission, which led him to take on the mantle of inspirational leadership. He was genuinely convinced of the reality of climate change, often referring in the AGBM to extreme weather events and their adverse impacts (e.g. AGBM 7, 1997a). As Estrada himself said in his interview, “you have to believe in what you are doing”. He was therefore determined that the negotiations would be successfully concluded and maintained unfailing optimism in this (see box 4.2). Such positive thinking was contagious; the fact that Estrada never admitted failure as an option helped to sustain the momentum of negotiations and reinforce the unacceptability of failure for parties negotiating in good faith.

Box 4.2: Vision and positive thinking

“... I will do my best with the final outcome of AGBM, even at the cost of not being elected in any place in the world after the crime” (Estrada, 1997b).

“You have to be optimistic. Particularly in Kyoto, I was paid to be optimistic... the Chairman has to be persévérant, persistent, otherwise you are lost... whatever happens you have to keep doing things up till you reach the goal” (interview: Estrada).

Estrada was not, therefore, a neutral Chairman, in the sense that he was not indifferent to the outcome of the negotiations. While it is axiomatic that any Chairman will want to broker agreement, in Estrada the determination ran particularly deep, and the presence of obstructionist parties meant that such determination was not compatible with neutral chairing. As one interviewee (AOACl) explained, “he wasn’t neutral in the sense that he was totally committed to progressing negotiations towards a positive outcome, and...some of the parties weren’t”. Indeed, Estrada regularly declared his determination that obstructionist forces should not block the adoption of the Protocol (see chapter 5). However, while he was not neutral, he remained steadfastly impartial with regard to the differing preferences of parties and coalitions, as well as to specific issues.

102 Although, at times, Estrada made it clear that he was personally suspicious of certain proposals (e.g. emissions trading), he did not block the negotiation of any options based on his personal views if he thought they were necessary to get agreement.

• Procedural leadership Estrada was a highly entrepreneurial procedural leader, developing strategic ways of managing the negotiations to promote agreement. Examples of such procedural leadership are taken up in the individual chapters of this thesis. In this chapter, we will focus on his chairing skills, including the energy, authority and direction he brought to the process.

Estrada supplied the negotiation process with highly skilled chairing, which helped to maximize the efficiency of the negotiations, while promoting a cooperative atmosphere. Although the secretariat provided him with speaking notes, he used these only as an ‘aide mémoire’, weaving them into his own individual chairing style. According to the Executive Secretary speaking during his interview, Estrada possessed “the sheer ability to chair a big meeting I have never seen before or since”.

Estrada chaired the negotiations in a largely informal, personal and interactive manner, which helped to build up a sense of personal involvement and ownership of the negotiation process among parties, as well as a degree of affection, or at least respect, for Estrada himself. For example, he referred to the AGBM as ‘we’ and made a point of calling on speakers by their names, not just their countries. When he was not personally acquainted with a delegate seeking the floor, he would sometimes ask the secretariat to find out his/her name. Although he chaired in English, he addressed his fellow Hispanic delegates in Spanish, thereby underscoring his affinity to non-Anglophone, developing countries, while his imperfect English allowed him to speak in a more direct and candid manner than would have been diplomatically acceptable for a native Anglophone.

103 Humour was also an important tool for Estrada”, enabling him to defuse tense situations, generate a more cooperative atmosphere, push through sensitive decisions, and disarm potentially difficult delegates who he feared were about to raise objections. According to one interviewee (AFl):

“He managed to lead the negotiations by this sense of humour. When he felt that the negotiations were becoming difficult to handle, he said things that made people laugh, and that relaxed the atmosphere. And when you are in a negotiation, and you are relaxed in that way, that sometimes allows you to change your ideas, and even your position”.

Estrada was certainly extremely adept at reading ‘the sense of the room’ and adapting his chairing style accordingly. As one interviewee (EU2) noted, “he had this incredibly disarming ability ... to be able in a rather broad brush way to read the personalities he was dealing with, to know ... whether to encourage their ideas, whether to allow them to ramble on or to rein them in”.

Importantly, Estrada appeared to retain boundless energy, even “when all others were exhausted” (Oberthiir and Ott (1999:85). One interviewee (BINGO 1) 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 Kyoto... he kept people off balance by his energy in keeping the whole thing going”. Estrada’s energy was due not only to his character, but also to good personal management. He attached great importance to his rest and nutrition so that he had energy in reserve when it mattered.

As well as skilled chairing, Estrada brought to the process the energy, authority and direction necessary to manage the complex and conflictual negotiations (see box 4.3). He always had a clear strategy for each session of the AGBM, which he was determined to stick to. At AGBM 6, for example, Estrada had decided that the session would focus not on bargaining, but on the consolidation and streamlining of the Framework Compilation text (see chapter 9). His explanation of this strategy to parties provoked many queries, but he stood

” On the role of humour in negotiations, see Rubin (1993).

104 firm so that, even if some parties did not like the strategy, there was always the sense that the process was under strong control.

Box 4.3: Authority, forcefulness and direction

“No one will impose anything on me!” (Estrada; AGBM 6, 1997c).

“...if it hadn’t been for his forceful personality, we wouldn’t have been able to push through some of the issues, he was certainly one of the few people who managed to shut up the OPEC countries” (AOSISl).

“... the issues were such that if he could bulldoze his way through, that was the only way to get it! Sometimes he did it in a manner that was a little bit less sensitive. But from hindsight, if he hadn’t ... matched up to some delegations, I don’t think we would have got far” (AFSECl).

“With Ambassador Estrada, no one could speak nonsense for too long. He cut it” (ASSECl).

Estrada established and enforced his authority from an early stage. At AGBM 6, for example, he sought to curb the lengthy restatement of positions by only allowing interventions from parties making concrete proposals. To enforce this ruling, Estrada interrupted several delegates in the midst of their interventions, a highly unusual practice in UN forums (see chapter 5). Having done so, he declared, “I apologise to those I interrupted... Next time, there will be more! I hope you understand why...” (AGBM 6, 1997d). Estrada repeatedly underscored his authority in a myriad of other less dramatic but, taken cumulatively, equally effective actions, throughout the negotiations. As an interviewee (SECl) recalled, “he ... played little games to establish his credibility... I didn’t realise it at the time. It’s only looking back that you realise what he was doing”.

Estrada exerted his authority to seek to push negotiators into a constructive negotiating mode, challenging any party whose stance he thought was uncooperative, particularly the Annex I parties. He frequently chided Japan and the US, for example, for their tardiness in putting forward proposed emission targets (e.g. AGBM 7, 1997a), while also reproaching the EU for its cumbersome internal decision-making process (e.g. CoW, 1997f). While the actual impact of

105 such rebukes is difficult to quantify, they did maintain constant pressure on the Annex I parties to start to bargain to reconcile their positions, while helping to sustain the confidence and goodwill of the G-77 and China. As the negotiations advanced, Estrada grew bolder in also challenging the G-77 (see box 4.4). There is evidence that, in doing so, he began to jeopardize his relationship and trust with that Group. According to one interviewee (A0AC2), “the trust began to erode at the end” (see also Mwandosya, 2000).

Box 4.4: Challenging the G-77 and China

“Estrada asked why the Group of 77 and China were blocking progress in the negotiations by coming up with a position on QELROs. He asked what was the rationale of the ... position...” (Mwandosya, 2000:100-1)

“After [US Vice-President] Gore’s announcement of flexibility this morning, I hope everyone else can be flexible [on multi-year targets]. The G77 has no room for flexibility on this point?” (EstradaiCoW, 1997i).

Estrada’s forcefulness meant that he sometimes “bruised people” (SEC2); his aggressiveness could be counterproductive and cause offence. In Kyoto, for example, he accused the Brazilian delegation of having come to the conference “with an open hand” (CoW, 1997d), a reference to Brazil’s proposed clean development fund. The suggestion that the fund had been proposed for Brazil’s financial gain triggered a walk out by the Brazilian Ambassador. One interviewee (Watson) remarked, “not everyone liked Estrada...some delegations really got pretty pissed off with him at times... Many delegations would have preferred someone different”. However, it was critical to the process that Estrada was not afraid of unpopularity. As one interviewee (ENGOl) commented:

“Having someone with his personality and his initiative to... take control ... to be unpopular at times, and not to please absolutely everyone 100% of the time, is necessary in a strong Chairman, otherwise you’ll never get an agreement... That he was willing to... take on that role was absolutely essential”.

• Substantive leadership Estrada did not play a significant leadership role in formulating and promoting his own substantive ideas. Although he did put forward proposals

106 aimed at reconciling differences among parties, some of them containing substantively new ideas, these did not attract widespread support, and he did not seek to push them. For example, his framework on policies and measures in the Negotiating Text (FCCC/AGBM, 1997c) was not received with enthusiasm, nor were the compromise proposals on joint implementation and voluntary commitments for developing countries that he drafted himself for the Chairman’s Text (FCCC/AGBM, 1997f; see chapter 9).

However, where Estrada did exercise critical substantive leadership was in his ability to ‘mix and match’ the proposals of parties toconstruct an integrative whole acceptable to all. The most obvious example of this is the Protocol itself, where Estrada correctly surmised that the combination of ‘emissions trading-clean development mechanism (CDM)-no voluntary commitments for developing countries’ would prove acceptable. While an analysis of interventions in the final CoW plenary suggest that a majority might have supported the isolated decision to adopt an article on voluntary commitments (ENB, 1997f; CoW, 1997k), Estrada judged - probably correctly - that an alternative ‘package’ including voluntary commitments but no emissions trading or no COM would not have harnessed consensus. This demonstrates the importance of a third party capable of seeing the broad universe of possible combinations, not just the options in isolation, and of then forging an integrative solution from these.

Estrada’s ability to discern an integrative whole from the positions of parties was complemented by his skill as a brave and judicious decision-maker. The absence of a voting rule and the lack of a clear definition of consensus gave Estrada leeway in interpreting when decisions could be adopted (see chapter 5), which he exploited to push through decisions that weaker individuals, more concerned about their popularity, might not have been able to achieve. In doing so, he was often required to make a personal judgment as to whether objections from parties were mere posturing or whether they reflected ‘bottom line’ demands that should not be violated. Making a correct judgment in this regard was critical to the eventual legitimacy of the decision, as well as Estrada’s credibility. As Kaufmann (1988:30) notes, “all decisions taken without a vote require the careful judgment of the chairman. If his judgment... errs, a procedural wrangle may well

107 break out and the chairman’s prestige will suffer”. Interviewees agreed (see box 4.5) that Estrada had been skilful in both discerning the delicate balance of what would be acceptable to parties, and in pushing through a decision to concretize that balance.

Box 4.5: Skilful decision-making

“.. .he understood the bottom line of all the positions... which is what his job as Chairman is really about.. .he was a very great adept at identifying what everyone’s interests were, and trying to work within those” (AOACl).

“What I am really intrigued about is that nobody dared to put up the flag after he hammered through ... How he sensed how far he could go, and where he should stop. Only a real diplomat could grasp this, and he did” (ACNGOl).

There were instances when parties relied on Estrada’s substantive leadership to act as arbiter of last resort and decide between the various options on the table. In such cases, different parties and coalitions were unable to back down from their own preferred position and accept their opponent’s proposal for fear of losing face, even if, on purely substantive grounds, they were prepared to do so. Estrada’s intervention in deciding one way or the other could therefore be used as a ‘lightning rod’. Parties could place responsibility - indeed, blame - for the decision on Estrada, and therefore not appear to be backing down. A good example is the approval of the draft article on general commitments for all parties, which had been the subject of gruelling negotiations in a negotiating group in Kyoto, and was the only one containing square brackets (indicating text still under negotiation) in the draft Protocol presented to the final meeting of the CoW (see FCCC/CP, 1997e). The Chairman of the negotiating group. Ambassador Kjellén, reported privately to Estrada that there were three options on the table: one supported by Annex 1 parties, one by the G-77 and China, and a compromise option proposed by himself, but apparently acceptable only to Annex 1 parties. Estrada took several interventions on the draft article, which confirmed the various options, and finally asked the Chairman of the G-77 and China what he ' should do, to which the delegate replied “do what you always do, use your gavel” (CoW, 1997k). Estrada did precisely that, and Ambassador Kjellén’s proposed compromise was adopted without objection; the G-77 Chairman could not be seen

108 to retreat after such intense negotiations, but he was prepared to do so hiding behind the Chairman’s decision (ASSECl).

Estrada also exercised substantive leadership in terms of political issue management. A good example is his handling of ‘evolution’, the clause in the US draft proposal calling for all parties, including developing countries, to have binding emission targets, possibly by 2005 (FCCC/MISC, 1997a). Aware of the explosive nature of this proposal, Estrada never opened discussion on it in the AGBM but, recognizing the political need for the US delegation to show that the proposal was under consideration, he included it in the formal Negotiating Text (FCCC/AGBM, 1997c) and raised the issue at his inter-sessional Expanded Bureau meetings (see chapter 6). However, to ensure that his subsequent Chairman’s Text would be accepted as the basis for negotiation, he left out the evolution proposal (FCCC/AGBM, 19971), while noting, for the benefit of the US, that all written proposals from parties were still on the table (see chapter 8). He eventually ruled that the proposal fell outside the parameters of the Berlin Mandate, and passed it back to the COP, the supreme decision-making body of the regime, at the opening of COP 3 in his report on the work of the AGBM (Estrada, 1997e). Estrada’s skilful management of this political ‘hot potato’ meant that it was not allowed to disrupt proceedings within the AGBM. Other less momentous cases of issue management include Estrada’s efforts to remove certain issues from the agenda - notably draft proposals for principles and an objective for the Protocol - so as to reduce the complexity of the negotiations. Despite protests from parties, he did not allow discussion of these issues in the latter AGBM sessions, and left them out of his Chairman’s Text (FCCC/TP, 2000a).

In all these dimensions of both procedural and substantive leadership, Estrada’s effectiveness was heightened by his wide-ranging consultations with parties behind the scenes, and the fact that he listened carefully to the advice of the secretariat. At the same time, he gathered information through both the secretariat and Diego Malpede, his assistant on the Argentinian delegation, to enable him to keep abreast of the thinking of parties and to gauge which decisions or approaches were likely to enjoy support.

109 We now turn to examine the role of the other main presiding officer during the Kyoto Protocol negotiations, the Japanese president of COP 3, whose less proactive approach contrasts starkly with that of Estrada.

The COP 3 President The draft rules of procedure of the climate change regime, as is typical in the multilateral arena, specify that the COP President is to be elected at the first meeting of each ordinary COP session, and normally subject to rotation among the five formal UN regional groups (rule 22), namely, Africa; Asia; Central and Eastern Europe; Latin America and the Caribbean; and Western Europe and Others. Moreover, it is usual practice in the UN for the host country of a negotiating round to hold the post of President (Lang, 1989a; Szell, 1993), and this is also applied in the climate change regime, where the venue for the COP usually rotates among the five regional groups together with the position of President (FCCC, 2000). Any country may offer to host a COP. Such offers must be considered by the SB I and approved by the COP before they are accepted, but diplomatic courtesy makes the refusal of an offer unlikely, unless logistical problems are in evidence.

Japan, whose presidency was compatible with the requirement for regional rotation, expressed interest in hosting COP 3 as early as COP 1 (decision 21/CP. 1; FCCC/CP, 1995b), and its offer was formally accepted at COP 2 (decision 1/CP.2; FCCC/CP, 1996c). Once Japan’s offer was accepted, it was taken for granted that the Japanese minister responsible for environmental issues would hold the post of COP President. There was therefore no debate, not even within the Asia regional group to which Japan belonged, over either the nationality or identity of the President. Indeed, given the rapid turnover of ministerial posts in the Japanese government at that time, the President’s identity was not known until late in 1997, when Hiroshi Ohki was appointed Director-General of the Environment Agency.

As Ohki had served in his post for only a few months before chairing COP 3, he had little understanding of climate change politics and was not well-acquainted with other environment ministers. Moreover, he had little familiarity with UN forums and his chairing abilities were unproven. This situation led the secretariat

110 to propose the formation of a Committee of the Whole at COP 3, with the understanding that it would be chaired by Estrada, thus placing only limited chairing responsibility on the President. This proposal was sanctioned by the SBI, which formally reviews arrangements for the COP (see FCCC/SBI, 1997a).

Ohki proved to be a largely “ceremonial President” (SEC2), performing only the basic formal functions required of him, without exercising any meaningful leadership or providing skill and energy beyond that. He was unable to chair in a skillful or spontaneous manner, and instead relied on the speaking notes prepared for him by the secretariat. Ohki generally followed these speaking notes to the letter, which tended to be obvious to parties and did little for his authority (A0AC2). The fact that the secretariat, particularly the Executive Secretary, was able to provide competent support to the President was critical to ensuring the smooth progression of COP plenary meetings. Beyond chairing plenary meetings, Ohki played only a limited role. He presided over COP bureau meetings, for which the secretariat once again provided detailed speaking notes, and also held one set of official informal consultations in Kyoto, for which his ministerial status secured strong ministerial representation. These consultations registered no meaningful progress, however, due in part to Ohki’s indifferent chairing.

In contrast to Estrada’s skilful handling of the issue, Ohki’s presidency was marred by his treatment of the US proposal on evolution, which generated distrust and resentment among developing countries. By consulting with individual developing countries before meeting with the G-77 Chairman, for example, Ohki gave the impression that he was trying to ‘divide and conquer’ the group (Mwansdosya, 1999). In addition, at a plenary meeting half way through COP 3, New Zealand put forward a draft decision with a specific timetable for negotiating developing country commitments (FCCC/TP, 2000a). The G-77 Chairman was under the impression that Ohki knew this proposal would be tabled, and was unhappy that he had not been warned (Mwandosya, 2000). Moreover, developing countries were incensed when Ohki sought to move on to the next agenda item without giving them the opportunity to respond. Even after the explosive reaction provoked by the New Zealand proposal, Ohki tried once again to raise the issue at his ministerial informal consultations. It is likely that Ohki saw substantive

111 leadership on this difficult issue as an appropriate role for him as COP President, and he was no doubt under pressure to raise the issue. However, the manner in which he did so left him open to perceptions that he was promoting the agenda of Annex I parties rather than a consensus solution.

One of the difficulties of the Japanese Presidency was that its relationship with the secretariat developed only very late in the negotiations. As noted above, Ohki was not designated President until a few months before COP 3, allowing little time for the secretariat to build up a productive working relationship with him. Moreover, for much of 1997, the secretariat faced obstacles in communicating with Japan more generally to discuss its presidency role (Zammit Cutajar, 1997a). The effect was that, throughout COP 3, Ohki relied more on his own many assistants than on the secretariat’s advice. The extent to which the advice of Ohki’s retinue was consistent with that of the secretariat is not known.

Interviewees did not rate Ohki’s performance highly. However, aside from his political insensitivity over the developing country issue, Ohki was mostly a benign figure, who was happy to confine himself to ceremonial duties. This was critical in allowing Estrada to take on an active leadership role at COP 3. As one interviewee (ENGOl) put it, “...it was Estrada that drove the process...and the fact that the Japanese let him do that was important”^\

Japan’s role as host of COP 3 extended beyond the formal position of COP President. The Japanese Government was expected to “show strong leadership” (Oberthiir and Ott, 1999:77) and to help forge consensus between different positions. Japan itself was anxious that agreement should be reached and sought to “demonstrate its international leadership...” (Matsumura, 2000:8). Japan’s logistical and technical contribution in providing excellent facilities and generous financing for COP 3 was indeed notable (Zammit Cutajar, 1997b; Oberthiir and Ott, 1999).

The Presidency of COP 4 proved to be much more destructive, as the Argentinian Environment Minister insisted on playing a central role in the negotiations, despite her lack of skill in such a role.

112 However, Japan sought to exercise its leadership role mostly outside the official organization of the negotiation process. For example, the Japanese government convened three sets of informal consultations in Tokyo in April, September and November 1997, the last of which, held at ministerial level, is where Brazil and the US reportedly first discussed the possibility of transforming Brazil’s proposed clean development fund into what became the CDM (Grubb et al., 1999). However, Japan did not elicit the secretariat’s advice over the organization of these informal consultations and did not link them into the accepted procedures, language and agenda of the official negotiations. Developing countries, for example, were invited only to the second day of the last set of consultations, and the agendas of all three included items that were considered insensitive by many developing countries, leading to the boycott of the third set of consultations by China, India and Saudi Arabia. Nevertheless, the consultations were judged helpful by some interviewees (e.g. Estrada; J2), especially in terms of building relationships among ministers at the final consultations.

Japan also exerted leadership through its own intense diplomatic activity in the run-up to and at COP 3, which is credited with wielding diplomatic pressure and making side-payments that helped forge agreement (Oberthiir and Ott, 1999; Mwandosya, 2000; see chapter 5). In addition, Japan exercised what might be termed ‘sacrificial leadership’ in accepting a strong target for the sake of success in Kyoto. Such actions, however, are beyond the scope of this thesis. For a fuller discussion, readers are directed to Hattori (1999).

THE PRODUCTION ASSISTANTS: THE AGBM BUREAU

“My opinion of bureaux is declining steadily” (SEC2).

It is common in multilateral negotiations for the presiding officer to be assisted by a bureau, composed of delegates elected by the parties. As a new subsidiary body, albeit a temporary one, the AGBM was entitled to its own bureau, with a Vice-Chairman and a Rapporteur to be elected with “due regard to the principle of equitable geographical representation” (rule 27). However, unlike

113 the COP bureau, where each regional group is granted two seats with one reserved for the small island developing states (in practice, AOSIS, thereby reflecting the specificity of the climate change issue^^) (rule 22), no specific formula is set out for the election of subsidiary body bureaux. As Lang (1989a) notes, the term ‘election’ is in fact somewhat of a misnomer in the UN system, where the membership of bureaux is usually decided through behind the scenes discussions among and within the UN regional groups. Unlike the presiding officer, the other officers participate on the bureau and in the negotiations as representatives of their regional groups, and are therefore not bound by the duty of impartiality; on the contrary, they are expected to articulate the views of their constituencies. At the same time, however, they are also expected to assist the presiding officer in promoting agreement.

Election and composition The disjuncture between the number of regional groups (five, or six with AOSIS) and the formal number of AGBM bureau members (three, including Estrada) made the election of the AGBM bureau a complex matter. An ongoing dispute over the COP bureau’s composition, whereby the OPEC states were calling for a seat of their own, similar to that granted to AOSIS, accentuated this complexity. OPEC’s concern has, in practice, largely been accommodated by ensuring that the group is represented on the COP bureau through one of the regional groups (e.g. Kuwait was elected as one of Asia’s representatives on the COP 2 bureau). Given the political significance of the AGBM negotiations, it was clear that a three-person bureau would be impossible to agree (Estrada, 1995a).

Considerable time was spent brokering the composition of the bureau. Estrada put forward a possible solution at AGBM 2, which was eventually adopted at AGBM 3 (FCCC/AGBM, 1995b, I996d). This provided for the formal bureau to be supplemented by six ‘advisers’, plus the Chairmen of the SBSTA and SBI ex officio. Including Estrada, the total number of individuals thus rose to eleven. This allowed the agreed COP formula to be applied to the AGBM,

Although the CBD states that its COP bureau should be elected “with due regard to the principle of equitable geographic representation of small island developing states” (rule 21; CBD, 1994), it does not formally allocate a seat to this group.

114 including the need for representation of OPEC through at least one of the regional groups. The solution also provided for the post of Rapporteur to rotate between the two full bureau members who would both be known as Vice-Chairmen. The post of Rapporteur tends to be viewed as inferior in the UN system and giving both full bureau members the same status thus removed an area of competition between the regional groups.

The delayed election of the bureau did not have substantive long-term repercussions on the negotiations. It did, however, use up considerable time and exposed the willingness of some parties to hold up the negotiations through procedural wrangles; much of the delay was occasioned by OPEC’s insistence on having its own seat (ECO, 1995b). Reaching agreement on the bureau thus marked a key early breakthrough in overcoming attempted procedural obstruction through innovation and pragmatism (see chapter 5). However, by the time it was finally formed, the bureau was a highly politicized body, some of whose members were known as obstructionists. Estrada admitted in his interview that the bureau’s composition had not coincided with his preferred membership:

“The bureau was ... not my first option.. .1 had problems with Africa, I would prefer to have a friend, Bakary Kanté [Senegal], and instead OPEC choose to have Nigeria. We end up with a very good relationship with the delegate of Nigeria, but he was there to protect the interests [of OPEC] and then we also have A1 Sabban [Saudi Arabia]... the main filibuster of the whole exercise”.

Roles of the AGBM bureau The role of a bureau tends to vary from negotiation to negotiation (Kaufmann, 1988), depending on the personalities within it (SEC2), and how the presiding officer wishes to make use of it (Szell, 1993). Typical functions for bureau members, for example, might include chairing informal groups or serving as an official consultation forum for the presiding officer to sound off ideas (see Lang, 1989a). Bureaux are rarely used as forums for substantive negotiation, given that their membership, based on UN regional groups, rarely coincides with the main interest coalitions within a negotiation.

115 Estrada invited some of the officers on his bureau to chair informal groups. The two Vice-Chairmen chaired the roundtables on policies and measures and QELROs at AGBM 4 (see chapter 6) and, after that, the roundtables on new proposals from parties. However, Estrada appointed only two bureau members to lead the non-groups convened from AGBM 6 onwards. This was partly because bureau members had not been nominated to their posts based on their chairing skills and partly because some of them held strong positions and were thus poorly qualified to serve as presiding officers.

Estrada’s main use of the bureau was as an official consultation forum, to share his ideas on his intended approach for the session and the outcomes that he would seek. To this end, he typically convened the bureau immediately prior to the first plenary meeting of each AGBM session. For example, just before the opening of AGBM 6, Estrada aired his intention to convene ‘non-groups’ for the first time, and to seek a mandate to prepare a Negotiating Text (AGBM bureau, 1997a). By floating his ideas in this way, Estrada could test whether they were likely to enjoy support. Bureau members could also raise issues of concern to them, or to their regional groups. To encourage this, bureau members were often invited in advance to propose items for the meeting agenda, although they very rarely did so. In this respect, bureau meetings could act as an ‘early warning system’, alerting Estrada to potential controversies in his exercise of leadership. For example, it was at a bureau meeting that Saudi Arabia raised questions regarding the ‘six-month rule’ for the circulation of a negotiating text that prompted Estrada to seek a legal opinion from the UN Office of Legal Affairs (see chapter 5). Estrada also used the bureau to convey messages to the regional groups, which he hoped would promote progress at the session. For example, immediately prior to AGBM 8, he asked the bureau to make it clear to their regional groups that he would not allow square brackets to be reinserted into the Chairman’s Text (AGBM bureau, 1997b).

However, the bureau did not always function as an effective consultation body. A number of interviewees, for example, stated that they had not felt adequately represented by their regional group member. Moreover, the presence of obstructionist parties on the bureau raised the danger that it would be

116 manipulated as an additional forum to delay proceedings and Estrada did not want to risk provoking challenges that would not otherwise have been raised. His caution was justified by the fact that some bureau members opted not to draw Estrada’s attention to potential problems, instead using the information acquired from the bureau to bolster their negotiating stance. For example, at a plenary meeting during AGBM 4, Saudi Arabia raised an objection to an issue that Estrada had already floated in a bureau meeting at which the delegate had been present, but had remained silent (AGBM 4, 1996a).

At AGBM 6, Estrada convened a wider group of delegates, the so-called ‘Expanded Bureau’, which absorbed the formal bureau itself (see chapter 6). While the formal bureau continued to meet until AGBM 8, the focus of attention shifted to the Expanded Bureau, which met much more often, and it lost its limited relevance.

THE STAGE MANAGERS: THE SECRETARIAT

“The secretariat can’t deliver success, but it can deliver failure” (SECl).

The secretariat is the only full-time “permanent force” (Kaufmann, 1988:73) within a regime, remaining active between negotiation performances. Like presiding officers and bureaux, the literature suggests that secretariats can vary greatly in their levels of activism from “highly interventionist” to “decidedly passive” (Szell, 1993:38). Wettestad (1999), for example, distinguishes between “assistant” and “player” secretariats, while Sandford (1994) makes a distinction between “actors” and “stagehands’’^^

The importance of a competent secretariat - whether active or passive - is widely recognized in the literature (Lang, 1989a; Sandford, 1994), although the overall contribution that the secretariat can make to a negotiation is not seen as pivotal, and certainly less important than that of the presiding officer (Andresen and Skjaerseth, 1999; Wettestad, 1999). However, this more modest role

The term ‘stagehand’ used by Sandford implies a more passive role than the characterization of the secretariat as ‘stage manager’ in this thesis.

117 attributed to secretariats may be a reflection of the fact that, as with all good stage managers, secretariats prefer their activities not to be noticed, and it is therefore difficult to assess their true effectiveness (Wettestad, 1999).

Establishment, mandate and functions Concurrent with the launch of negotiations on the Convention in 1990, the UN General Assembly established an interim secretariat to provide support to those negotiations (FCCC, 2000). As is commonplace in international treaties, the Convention itself called on COP 1 to “designate a permanent secretariat and make arrangements for its functioning” (Article 8.3). COP 1 duly did so, in effect confirming the existing INC interim secretariat as the permanent UNFCCC secretariat (decision 14/CP. 1; FCCC/CP, 1995b). Also at COP 1, parties decided (through a secret ballot, the only vote ever taken in the climate change regime) to accept an offer from Germany to host the secretariat headquarters (up to then located in Geneva) in Bonn (decision 16/CP. 1; FCCC/CP, 1995b). The secretariat moved to Bonn in the summer of 1996.

The secretariat is “institutionally linked to the United Nations, while not being fully integrated in the work programme and management structure of any particular department or programme” (decision 14/CP. 1; FCCC/CP, 1995b). In practice, this means that the secretariat is administered under UN rules and regulations, for example, concerning staffing structure, finance and administration (FCCC, 2000). The Executive Secretary, Michael Zammit Cutajar, a Maltese national who has headed the secretariat since it was set up, is appointed by the UN Secretary-General in consultation with the COP bureau, and currently holds the rank of Assistant-Secretary-General (FCCC, 2000). This is a high rank in the UN system; the Executive Secretaries of the CBD and ozone secretariats, for example, are both one rank below, a reflection of the significance attached by parties to the climate change regime, as well as the skills and responsibility involved in managing a secretariat dealing with such a complex and politically sensitive topic.

The secretariat is staffed by international civil servants. An effort is made to ensure that the secretariat is “international in its composition and representative of different regions and groups” (FCCC/CP, 1995c:3) in terms of its professional

118 staff, which is seen as critical to securing the confidence of parties (Susskind, 1994; J2), The core funding for the secretariat is secured through contributions from parties, their shares being based on the UN scale of assessment (FCCC, 2000). For 1996-97, the core budget of the secretariat stood at just over US$9 million per year (decision 16/CP.l; FCCC/CP, 1995b). While this budget compares favourably with other regimes (Wettestad, 1999; see UNEP, 2001a), during the Kyoto Protocol negotiations, the secretariat suffered “serious cash flow problems” arising from “late payment of contributions” (FCCC/SBI, 1997e). By late August 1997, 110 parties had not yet paid their contributions for 1997, totaling nearly US$4 million, including four of the ten largest contributors (FCCC/SBI, 1997e and f).

The functions of the secretariat are set out in general terms in the Convention (Article 8) and elaborated to a limited extent in the draft rules of procedure, in a “rather standard way for international environmental politics” (Wettestad, 1999:217). These general functions are developed through the biennial programme budget, which sets out the work programme of the secretariat and provides a more complete picture of its role. A draft programme budget is drawn up by the Executive Secretary every two years. It is then considered in the SBI and invariably amended before being approved by the COP (FCCC, 2000). The functions of the secretariat are thus negotiated between the secretariat and the parties in an iterative manner. It is the COP, however, that finally approves the programme budget and the Executive Secretary must report annually to it on the secretariat’s resource deployment. In formal terms, therefore, the secretariat has limited autonomy and the parties exert considerable oversight over its activities.

For the purposes of this thesis, we are interested not in the secretariat’s various (limited) programmatic activities'^ such as the review of national communications, but rather in the function of support to a negotiation process. Aside from logistics, recent programme budgets (e.g. FCCC/CP, 1997i) have

Unlike some secretariats (e.g. those servicing the UN Convention to Combat Desertification and the Convention on International Trade in Endangered Species), the UNFCCC secretariat does not have a programmatic role in implementing regional or national programmes (UNEP, 2001b)

119 identified several specific tasks involved in carrying out this support function, including the following:

Planning and organization of sessions of the COP, subsidiary bodies, and bureau;

Preparation of documentation (e.g. agendas, reports, negotiating texts);

Provision of advice, substantive support and secretarial assistance to the presiding officers and bureaux; and

Development of new concepts and ideas (Executive Secretary).

Even these more detailed tasks, however, are phrased in a broad way, allowing considerable latitude for interpretation. The space for action of the secretariat is thus heavily circumscribed, but the secretariat has scope for the negotiation of its activities within that space, as well as for pushing against its boundaries. In this sense, the secretariat faces a similar fragile mandate to that of the presiding officers. However, the fact that the secretariat has a permanent organizational structure generates inherent tension with parties, most of which guard their sovereignty jealously and are sensitive about relinquishing powers to an intergovernmental organization (Sandford, 1994; Andresen and Skjaerseth, 1999). The secretariat must therefore ensure that it can justify its actions against its mandate and that it manoeuvres within its space for action even more carefully than the presiding officers who are not seen as a potential threat to sovereignty.

An important means of managing this tension is through a symbiotic relationship between the secretariat and the presiding officers (or bureau), whereby the secretariat carries out its activities and presents proposals under the responsibility of these elected officers, thus covering its own actions by a ‘veil of legitimacy’ of approval from the elected officers. The importance of the veil of legitimacy is illustrated in box 4.6, which reproduces a response by China (echoed by others) to a suggestion made at an AGBM 7 non-group that the secretariat

120 should be asked to merge proposals on a relatively uncontroversial issue. In the end, the secretariat did merge the proposals and the non-group Chairman made no changes, but the fact that he exerted formal oversight over the secretariat’s work was critical to the eventual legitimacy of the merged text.

Box 4.6: The importance of the veil of legitimacy

“If you ask the secretariat to do ... only compilation.. .they will do it very perfectly. But if you ask the secretariat ...to merge something, there is the danger you will put the secretariat in a very delicate position ... I wonder ... if we might request that you yourself [the non-group Chairman] take responsibility for directing the secretariat. In this way, it would be a party... a member of this negotiating process, not the secretariat. We would accept, anticipate and .. .believe that the secretariat would facilitate your work... but by your taking responsibility, we might overcome this hurdle ...” (China:AGBM 7, 1997b; emphases added).

Opportunities and constraints The period of the Kyoto Protocol negotiations was a time of big upheaval for the secretariat. The move to Bonn resulted in the loss of several key staff members who preferred to stay in Geneva and the financial difficulties mentioned above led to delays in recruitment. Staffing shortages in turn generated a vicious circle whereby there was no time to go through the considerable bureaucracy needed to recruit new staff (see FCCC/CP, 1996e; SECl). The approved budget of the secretariat allowed for approximately 68 posts in 1996 (25 professionals) and 90 in 1997 (30 professionals); a significant proportion of these, however, were occupied by short-term staff, including consultants. Many were not filled at all. Although this upheaval did not, surprisingly, directly impact on the negotiations (SEC2), the workload imposed considerable personal costs on some staff members and could not have been sustained in the longer-term.

The two main secretariat players in the negotiations were the AGBM team and the Executive Secretary. Although the literature has tended to focus on the heads of secretariats^^ in the case of the Kyoto Protocol negotiations, Zammit

E.g. Mostafa Tolba, Executive Director of UNEP, in the ozone regime (Szell, 1993; Benedick, 1991/98), and Maurice Strong, Executive Secretary of the UNCED negotiations (Antrim, 1994; Chasek, 1994).

121 Cutajar took a mostly backseat role. Although he did make some critical contributions at key moments in the negotiations, he delegated most of the day-today responsibility for its management to the coordinator of the AGBM team, Richard Kinley. In Zammit Cutajar’s own words stated during his interview:

“With the combination Raul [Estradaj/Richard [Kinley], I was not so engaged in the organization.. .1 was laid back, not getting into it a lot, I knew the process was in safe hands.. .1 made sporadic interventions. I had full confidence in Richard”.

The AGBM team was small; at its peak, it consisted of only two professional staff members working full time on the Kyoto Protocol negotiation process, both of them junior short-term staff. Kinley was also responsible for a range of other activities, including the negotiation of the next programme budget, while two other permanent staff members, a senior legal officer and a junior programme officer, similarly also had other responsibilities. Aside from the Ghanaian legal officer, the other four professionals all came from Anglophone OECD countries (Australia, Canada, UK, US). This was partly a reflection of the reliance on short term staff, who were not subject to nationality considerations.

Kinley played a key role in the secretariat support to the Protocol negotiations. He came from a diplomatic background, having served on the Canadian delegation during the negotiation of the Convention. He was a discrete bureaucrat rather than a charismatic leader or technical expert. His experience of the Convention negotiations, where he had worked with Elizabeth Dowdeswell when she co-presided over one of the working groups, had given him an excellent understanding of the politics of climate change, as well as the needs and expectations of both presiding officers and delegates. His awareness of, and interest in, organizational issues also ran deep, and he possessed a keen eye for detail and precise drafting. The importance of such an individual managing the negotiations was highlighted by an interviewee (EU2): “[a] factor which was very marked in the case of the Kyoto Protocol was the Richard Kinley role... it was an immense asset in those latter stages for Raul Estrada to have Richard...to be... his pen and paper... I’m trying to think if I can think of any other negotiation that had a Richard in it. And I think the answer is no. ... That element is unique. And it showed”.

122 The background of all the AGBM team members lay in law or politics. The AGBM team was therefore exclusively made up of individuals more interested and competent in the diplomacy, politics and procedures of the negotiations than their technical content. This focus of the AGBM team was key to the politically astute organization of the negotiation process, as discussed throughout this chapter. It was also beneficial for a single team to have responsibility for the whole negotiation process, rather than dividing up work between more specialist secretariat departments. This allowed the negotiations to be managed in a more coherent and coordinated way, enabling linkages between issues to be identified, as well as facilitating a close and strong relationship with Estrada.

However, the small size of the AGBM team resulted in a heavy workload for its members. Exhaustion, combined with insufficient checks and balances as a result of lean staffing, meant that avoidable mistakes were made, including three errors in the final text of the Protocol presented to the COP (FCCC/CP, 19971). Moreover, the more political bent of the AGBM team meant that it did not possess expertise in the technical issues surrounding the negotiations, notably carbon sinks. Lack of technical knowledge and overwork hampered the AGBM team’s analytical capacity, so that it was not able to conduct much research or in-depth thinking on the implications of the various proposals under negotiation, such as the inclusion of three or six gases and emissions trading.

This lack of capacity was exacerbated by the relatively weak communication between the AGBM team and other secretariat departments, where there was more capacity and technical expertise that could have been put to use. The AGBM team was physically housed in a different part of the headquarters building (where the Executive Secretary also had his office) from the rest of the secretariat, which may have contributed to the lack of internal communication. It was only after AGBM 7, especially when producing the Chairman’s Text, that the AGBM team sought out the help and advice of additional staff, including those with technical expertise, on a more systematic basis.

An important asset for the AGBM team was the reservoir of trust and confidence that the parties held in the secretariat, which translated into confidence

123 in the negotiation process itself. This trust had built up since the secretariat’s establishment due largely to the judgment, intelligence and personal affability of the Executive Secretary. It is significant that Zammit Cutajar came from a UN background, having risen up the ranks of the UNCTAD secretariat. He therefore “brought with him excellent knowledge of the people in the UN system and the necessary grasp of complex UN procedures” (Kjellén, 1994:152). His UNCTAD experience endowed Zammit Cutajar with an understanding of developing country concerns, while his Maltese nationality may also have been an asset, Malta being both a member of the G-77 and a state aspiring to EU membership. Like Estrada, Zammit Cutajar believed in the severity of the climate change problem, in particular from a development perspective. In remarks made at the opening ceremony of the new secretariat headquarters in Bonn, he stated:

“The reason 1 am here, in this job, is that for many years 1 have been working for development, for equitable development in this world... And the essence of the climate problem is equity and efficiency in the use of the world’s resources” (Zammit Cutajar, 1996b).

The reservoir of trust inherited by the AGBM team was kept high by the general perception, reflected in many interview responses, that the secretariat supported the negotiations in an unbiased manner. As a body of international civil servants, the secretariat was certainly required to be impartial and not to promote any particular point of view. However, like Estrada, the secretariat was not neutral in that most of its individual staff members were dedicated to promoting agreement in the negotiations. The difference between impartiality and neutrality was keenly understood by the Executive Secretary, who commented in his interview:

“The secretariat is objective [impartial], but not neutral. 1 say this because of a wise saying of Raul Prebisch, my first boss in UNCTAD. He said: ‘as a secretariat we are objective, but we cannot be indifferent to development. We cannot be neutral. We are fighting for development’. So when people try to block the [climate change] process, we can admire their negotiating skill, but we cannot be indifferent. We are here for a reason, not just a take home salary. We have some sort of commitment. But we do not have a monopoly on truth. There are many ways to achieving the goal”.

124 The secretariat was thus required to serve two masters: on the one hand, as the “permanent force” or “guardian” (Honkanen et ah, 1999) of the climate change regime, it was beholden to supporting the ultimate objective of that regime and thus to achieving a successful conclusion to the negotiations; on the other hand, it was subservient to, and dependent on, the will of the parties, having been established to serve them. The contrasting views of parties, however, meant that a common ‘will’ rarely prevailed, while the presence of obstructionist forces meant that the two masters did not always speak with one voice^^. Although no concrete cases of conflict of interest emerged in the Protocol negotiations, this tension made it all the more important for the secretariat to manage its space for action carefully.

The secretariat, and particularly the Executive Secretary, enjoyed an excellent relationship with Estrada, built up over a long period since Estrada’s involvement in the INC. The secretariat and Estrada remained in regular communication, especially by e-mail, between negotiating sessions, exchanging information and ideas. The appropriate relationship between producer and stage manager, and especially the importance of the veil of legitimacy, was clear to both players, which was critical in allowing the secretariat to move more freely within its space for action. Estrada did not hesitate, for example, to publicly defend the secretariat at any unfounded suggestion that it had acted improperly, and always took full responsibility for decisions and proposals presented in his name, even those made on advice of the secretariat. The close relationship between Estrada and the secretariat comes through in the illustration in figure 4.1, which shows Estrada (left) conferring with Zammit Cutajar (centre) and Kinley (right) on the podium during a CoW plenary meeting.

As Sandford (1994:23) notes, “secretariat objectives may be at odds with the objectives of individual treaty parties, even though secretariat objectives may be aligned with those of the treaty itself’.

125 Figure 4.1: Estrada and the secretariat at work

-TSSà

Source: Agarwal and Sharma, 1998

The secretariat’s role in the Protocol negotiations

Logistics

The most basic role of the secretariat in the negotiations was a logistical one,

performed by the AGBM team in collaboration with the conference services

department. This included, for example, the supply of sufficient appropriately sized meeting rooms, interpretation facilities into the six UN languages, document

production, translation and distribution, provision of spaces for informal and

unofficial meetings, and venues for non-state organizations to hold side events.

An important aspect of the secretariat’s logistical work related to transparency and procedural equity. It was the responsibility of the secretariat, for example, to ensure that information was freely accessible on the scheduling and location of meetings and on the availability of documentation, in order to maximize the opportunities open to delegates to participate in the negotiations as well as to minimize transaction costs, especially as the complexity of the negotiations increased in their latter stages. Delegates were kept informed through a printed

126 daily programme of meetings and, from AGBM 7, through an electronic notice board recording scheduling changes.

The importance of good logistics in a negotiation is often underestimated; however, in a complex, global multilateral process, if logistical issues “are not properly addressed, the whole machinery gets out of order and no meaningful results can be achieved” (Kjellén, 1994:152; see also Lang, 1991). Kinley himself noted in his interview that “no meeting ever succeeded because the logistics were great. But if the logistics are bad, the negotiations can fail”. Interviewees agreed that the secretariat had performed well in its logistical functions.

Inspirational leadership Zammit Cutajar, alone among secretariat staff members, provided inspirational leadership to the negotiations, although in a more muted tone than Estrada, through introductory statements delivered to almost all AGBM sessions, and also to the COP. Unlike Estrada, Zammit Cutajar, as an international civil servant, could not challenge a particular party or coalition. Instead, he encouraged parties to advance their negotiations, while assuming the secretariat’s role as upholder o f the regime and its ultimate objective to advocate certain principles (e.g. integrity, clarity) but without supporting any particular position. The extract below from his opening statement to AGBM 7 illustrates this point (emphases added):

“What I would hope to see ... is first of all a very clear agreement, one that is understood by politicians and the public... I hope that the language that will be agreed in Kyoto will have punch. It should be a strong punch... this clear signal, this strong signal, should be one whose implementation is verifiable. The people to whom this signal is addressed should be able to monitor its implementation'" (AGBM 7, 1997a).

Procedural skill and energy The prime responsibility of the AGBM team was for the organization of the negotiation process. In this regard, the team both supported Estrada as a procedural leader, while taking the initiative to actively devise ways of organizing the negotiations to promote agreement. The actions of the secretariat in this regard cannot be described as ‘leadership’, as its mandate foreclosed, or at least

127 heavily circumscribed, overt, independent action. The concept of ‘skill and energy’, however, captures well the way in which the secretariat injected strategic thought directed at achieving the broad goals of the negotiation into the organization of the negotiations, but hiding behind the veil of legitimacy and shunning the explicit role of leader.

The secretariat made strategic recommendations to Estrada on how to organize negotiating sessions and also supplied him with speaking notes to help him chair meetings of the AGBM in a procedurally sound and effective manner. Given that Estrada was not a native English speaker, the speaking notes of the secretariat were particularly important in cases requiring a judicious choice of words (e.g. when seeking a mandate to prepare a negotiating text; see chapter 9). In addition, at least two professional officers sat alongside Estrada on the podium during meetings, ready to provide him with any procedural and substantive support that he might need. Such support was also provided to presiding officers of informal groups, as well as the COP President, who was in particular need of this assistance, given his difficult in chairing in a spontaneous manner or improvising in the face of unforeseen events. Specific examples of the procedural skill and energy exercised by the secretariat in this way are provided throughout the thesis.

Substantive skill and energy Unlike the almost legendary role played by the UNEP secretariat in negotiations under the ozone regime (see Benedick, 1991/98), the secretariat very rarely attempted to exercise open substantive leadership by brokering agreements among parties. Ideas that might help reach a compromise were almost always expressed through discrete advice to the relevant presiding officer so that, once again, the role of the secretariat can be expressed in terms of providing substantive skill and energy, rather than leadership. For example, at COP 3, Kinley gave advice to Estrada on the numbers he should propose in the first draft list of emission targets circulated in an official document (FCCC/CP, 1997d), based on his understanding of parties’ positions. As one interviewee (ASl) characterized it:

128 “Their role is not to get involved in the negotiation. But I do see the secretariat as someone who ... will always be there to assist the Chair ... by providing him some suggestions... Just because you are not involved in it, and you are sitting at a distance, you can also identify areas of convergence... and you can tip off the Chair - look, that’s where you can move”.

The negotiations on sinks were an exception to this otherwise low profile. These negotiations were supported, from AGBM 8, by a senior staff member not part of the AGBM team, who adopted a more interventionist stance, consulting actively behind the scenes. Many parties were unhappy with this approach, demonstrating again the importance of maintaining the veil of legitimacy. One interviewee (J2) commented:

“[the secretariat] played a much more activist role .. .in the area of sinks. ... I’m not sure that worked ... it’s very hard for the process to separate technical expertise from political views when they come from an ostensibly neutral source. And I think those often overlapped... you always have people in senior positions, and they have views, and I’m not persuaded that in the sinks discussion that was helpful”.

The substantive skill and energy provided by the secretariat was particularly important in promoting consensus and integrative solutions through the medium of drafting text for Estrada and presiding officers of informal groups to present as their own. Professional staff on the AGBM team had good drafting skills and they were almost all native English speakers capable of manipulating the subtleties of the language to find the diplomatic wording necessary. Moreover, the secretariat could draw on ‘institutional memory’ of precedents that had been used in the past to help craft acceptable language.

The work of the secretariat in drafting text was an important dynamic helping to move the negotiations forward. For one interviewee (Jl), “the secretariat played an extremely substantive ... extremely forceful role in the development of the text, getting ... significant text out that... reflected all the views on the table.Moreover, the drafting work of the secretariat reflected an efficient division of labour, freeing the presiding officers (most of whom were neither native English speakers nor good drafters) to apply their political skills to the substance of negotiations. As one interviewee (EU2) explained:

129 “Raul [Estrada] clearly wasn’t going to be able to come up with drafts on absolutely everything just off the top of his head... to have someone like Richard ... he really does know how to draft... was absolutely crucial to the outcome... Raul Estrada ... was able to rely on the production of written text... which he just wouldn’t have been able to handle all by him self’.

The secretariat also provided support to Estrada’s substantive leadership, preparing briefing notes on specific issues, such as the implications of using multi-year baselines, not only in response to requests from Estrada, but also on its own initiative. The briefing note on possible thresholds for entry into force, for example, gave Estrada the information he needed to ensure that these provisions did not give one party a veto over entry into force.

However, the low analytical capacity of the AGBM team, its lack of technical expertise, and weak communication with other departments meant that its substantive support to Estrada was insufficient. For instance, the AGBM team failed to bring certain important substantive matters to his attention in a timely manner, in particular the treatment of sinks (see chapter 7) and also the implications of the various proposed targets. One interviewee (AOACl) commented, “... the sinks issues is one where I feel the secretariat could have had a much stronger role in pinpointing to Estrada - who was, after all, a policy, non technical person - that there was a need to address this issue in more detail before”. The Executive Secretary also acknowledged in his interview that the Kyoto Protocol negotiations had lacked technical support:

“What could we have done differently? Data issues, we could have realized the importance of this before the last minute, and work on sinks. I didn’t understand the need for data work.... If I had to do the Kyoto Protocol now, I would allow more capacity for technical work”.

The secretariat provided only limited substantive support to parties through technical work on specific issues, preparing only a small number of background information documents (see chapter 7). It was more active, however, in supplying substantive input relating to the coherence and consistency of the evolving draft texts, along with the feasibility of their provisions and their conformity with the

130 Convention, reflecting the more legal and political expertise of the AGBM team and the secretariat’s role in promoting the integrity of the regime. The secretariat, for example, prepared a technical review of the Revised Text going forward to COP 3 (FCCC/CP, 1997k), which presented suggestions on how to improve the text, as well as more substantive queries relating to the practicability of certain draft provisions. Several points raised in that review were taken up in the negotiations. Estrada, for example, justified a change to the draft text on flexibility for EITs on the grounds that the technical review had identified a legal loophole (see CoW, 1997d, e), while the review also identified the legal need for an unambiguous definition of the source of emissions data for an entry into force threshold.

The invisibility of the secretariat Overall, interviewees rated the secretariat highly, although some pointed to inevitable differences in the performance between individual staff members. Several others admitted that they had not been aware of the secretariat’s work during the negotiations and, despite his prominent position in managing the negotiations, only one interviewee mentioned Richard Kinley. As an interviewee (A0SIS2) commented “.. .you don’t really see what the secretariat is doing at all...They do all the grunt work, behind the closed doors”. Another (EUSEC2) noted, “the secretariat was anonymous, and that’s what it’s supposed to be”.

This illustrates the problematic nature of the dichotomous models of secretariat roles outlined at the start of this section. In the case of the Protocol negotiations, the secretariat was both an actor and a stage manager, that is, it became an actor in the negotiations precisely because it performed its stage manager functions competently and without pushing too far against the boundaries of its space for action. The secretariat was not interventionist; however, it was highly active, but working through the presiding officers behind the scenes where its activity was invisible to most delegates. Attempts at greater interventionism would have backfired, as indeed they did in the case of the sinks negotiations. One interviewee (A0AC2) captured this point eloquently:

131 “The secretariat is held in very high esteem by the parties, and ... justifiably so. And part of that is because of their consistent exercise of self-restraint... you don’t ever get the impression that the secretariat... is manipulating the process to produce a particular outcome... they probably have more influence through that almost subliminal assistance”.

SUMMARY AND CONCLUDING REMARKS

This chapter has demonstrated how Estrada and the secretariat provided the negotiation process with the leadership and skill and energy that it needed, helping to fill the vacuum of effective leadership among the negotiating parties. Estrada exercised highly proactive and visible process-oriented leadership along all three dimensions - inspirational, procedural and substantive - which proved critical to steering the negotiations to agreement.

The secretariat also assumed an important role in providing skill and energy, albeit a discrete one, hiding behind the veil of legitimacy of the presiding officers. The provision ofprocedural skill and energy dominated the secretariat’s work, in line with the AGBM team’s expertise.

The COP 3 Presidency and the bureau were far less significant. The most important contribution made by the COP 3 Presidency - both Ohki himself and the Japanese government in general - was undoubtedly to give Estrada space to effectively exercise his own leadership. The politicization of the bureau, and its inclusion of parties who sought to obstruct the negotiations, largely prevented it from either taking on a leadership role or assisting Estrada with his leadership, except as a rather weak consultation forum and limited source of presiding officers to chair informal groups.

Having considered in broad terms the roles played by the production team, we can now address, in the forthcoming chapters, each specific dimension of the organization of the negotiation process, analyzing how the actions of the production team impacted on the effectiveness criteria defined in chapter 2. Given the low impact of the COP 3 presidency and AGBM bureau, references to the production team in the remainder of this thesis will, unless otherwise stated, apply only to Estrada and the secretariat.

132 CHAPTER 5

CHOREOGRAPHING THE MOVES: RULES FOR THE CONDUCT OF BUSINESS AND DECISION-MAKING

“The overwhelming majority of the parties is willing to adopted an international instrument... That majority should not be frustrated” (Estrada, 1997e; report to COP 3).

INTRODUCTION

This second empirical chapter explores the choreography that shaped the moves of the players - both the production team and the cast of negotiating actors - in the Protocol negotiation performance, woven around the formal procedural rules and informal established practices of the climate change regime. The basic choreography of the climate change regime was largely unoriginal; procedures for the conduct of business and decision-making mirrored those at work in the wider UN system, with few concessions made to the uniqueness of climate change. What is interesting, however, is the way in which this basic choreography was performed by the players, how they improvised around it in innovative ways and used it to promote their strategies in the negotiations. After introducing the procedural rules and established practices of the climate change regime, this chapter then focuses on the conduct of business^", before turning to decision making.

THE BASIC CHOREOGRAPHY OF THE CLIMATE CHANGE REGIME

The conduct of business and decision-making in the climate change regime is based on formal procedural rules, including those set out in the Convention and the draft rules of procedure (FCCC/CP, 1996d). These are supplemented by unwritten established practices that have developed over time both in the UN system in general and specifically in the climate change regime, some of which

‘Conduct of business’ is defined here in broad terms, referring to all procedural rules relating to the organization of the negotiation process, with the exception of those on decision-making. Some rules, such as those on the participation of non-state organizations, are dealt with in more detail in the relevant individual chapters.

133 have become so engrained that they have acquired a similar status to the formal procedural rules. For the sake of readability, this chapter will refer both to the formal procedural rules and the more established practices generically as ‘procedural rules’.

As noted in chapter 3, a distinguishing feature of the climate change regime is that, to date, it has been unable to adopt its rules of procedure, which it was mandated to do at COP 1, due to disagreement over the voting rule for taking decisions. The main cause of dissent was demand for particular substantive decisions to be taken only by consensus; OECD countries wanted consensus to apply to decisions bearing financial implications, while OPEC insisted that consensus should be necessary for substantive decisions related to the development of the Convention (Oberthiir and Ott, 1995; Wettestad, 1999). This latter demand was particularly significant in the context of the Protocol negotiations. Unlike Article 15 on procedures for adopting amendments to the Convention, Article 17 on the adoption of protocols does not specify a ‘last resort’ voting majority that could be invoked in the event that all efforts at reaching consensus have been exhausted^'. Negotiators would thus be referred back to the rules of procedure for such a last resort decision-making rule and, according to OPEC, this rule should be consensus, which would clearly be more difficult to secure than the three-quarters majority vote required for amending the Convention. The difficulty faced in agreeing the rules of procedure, which themselves had to be adopted by consensus, were thus exacerbated by the context of the Protocol negotiations (Grubb et al., 1999). It was also complicated by OPEC’s insistence that they should be granted a seat on the COP bureau (see chapter 4).

Securing the adoption of the rules of procedure, and in particular determining the last resort decision-making rule for adopting a protocol, was deemed to be of considerable importance in the run up to, and at, COP 2. The Presidents of COP 1 and 2 both held consultations on the issue and many different voting majority

As Szell (1996) notes, the Convention is not unusual in this regard. Although multilateral environmental agreements almost always specify last resort majority voting rules for the adoption of amendments, they tend to refrain from doing so for protocols.

134 formulae were floated, but to no avail (see FCCC/CP, 1996b). In order to break the deadlock, the President of COP 2, advised by the secretariat, proposed to COP 3 that it adopt the rules of procedure, with the exception of the voting rule on substantive issues and the composition of the bureau, but on the understanding that this latter rule would continue to be applied (FCCC/CP, 1997j). Although a similar strategy had proved successful in the CBD“ , it could not be replicated in the climate change context, demonstrating the high levels of political sensitivity surrounding this issue, especially at COP 3.

In practice, however, and belying the controversy surrounding them, the draft rules of procedure were simply ‘applied’ at each session of the COP and AGBM during the Kyoto Protocol negotiations without serious challenge (see reports on COP 2 [FCCC/CP, 1996b] and COP 3 [FCCC/CP, 1997g]), and indeed were rarely ever referred to^^ While the absence of a voting rule certainly affected the negotiations, as discussed below, the non-adoption of the remaining rules did not seem to impact on the conduct of business in any substantive way. One interviewee (EUSECl) commented, “not having the rules of procedure might be a minus.. .on the process as a process, but not substantively”, while another (ASSEC2) agreed that “it wasn’t very good without rules of procedure but it wasn’t that important”.

THE CONDUCT OF BUSINESS

Some of the key procedural rules relating to the conduct of business are outlined below:

• The foundation for the conduct of business is the one-party-one-vote provision, set out in both the Convention (Article 18) and the draft rules of procedure (rule 41), which is standard in most UN forums. Although there are

The CBD had faced similar problems in adopting its rules of procedure, specifically relating to voting majorities for decisions on financial matters (CBD, 1998). This supports Kaufmann’s (1988:38) observation that “practically all intergovernmental meetings operate under rules of procedure, even though in some cases they are hardly ever referred to”.

135 few instances in which votes can be taken, by extension, this provision translates to ‘one-party-one-voice’, in other words, ‘equal say’ for all parties;

Meetings of the COP and subsidiary bodies are held in public and accredited observers are allowed to participate (Article 8.6, rule 30)^;

Debates cannot proceed “unless at least one third of the parties... are present”. This required quorum is increased to two-thirds for decision-making (rule 31);

Rules governing the right to speak (rule 32) 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 must seek the agreement of the parties to limit the overall time, and the number of times, a delegate may speak;

Statements made in an ojficial language of the UN (Arabic, Chinese, English, French, Russian, Spanish) must be interpreted into the other five (rule 55). Official documents must likewise be drawn up in one language, and translated into the others (rule 56);

Documents should be circulated in advance. According to both the Convention and the draft rules of procedure, the text of any proposed amendment, annex or protocol must be communicated to parties at least six months before its adoption (the ‘six-month rule’) (Articles 15, 16, 17; rule 37). Other supporting documents for a negotiating session must be distributed to parties at least six weeks before the opening of that session (rule 11). During 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);

^ In the case of public subsidiary body meetings, this has emerged as a practice, as the rules of procedure state that such meetings should be private, unless the COP decides otherwise.

136 • 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 (established practices).

The procedural rules of the climate change regime are aimed at structuring and ordering debates in a predictable and standardized manner, stabilizing the expectations of participants (Yefimov, 1989; Werksman, 1999). Such standardization can help to reduce transaction costs (Yefimov, 1989), and indeed did so in very practical ways in the Protocol negotiations, for example, by ensuring familiarity among parties as to how a formal AGBM meeting would proceed, its scheduled start and end times, procedures for intervening in debates, expectations regarding interpretation, and so on.

Aside from the standardization of the conduct of business, the procedural rules seek chiefly to promote procedural equity and transparency in negotiations, rather than to maximize efficiency. The most obvious example is the equal say rule, which enshrines formal procedural equity by giving all parties an equal right to contribute to debates and decision-making^^ The presiding officer is expected to call on speakers seeking the floor through the objective procedure of first- come-first-served and, once a speaker begun to speak, s/he cannot be interrupted by other parties (who may, for example, be more eloquent or better informed), as these must seek the floor before intervening. Although the formal rule whereby the presiding officer has to seek the consent of parties to limit the speaking time of a delegate is very rarely invoked, the associated established practice in the UN system whereby a party is permitted to speak without restraint is typically treated with respect. Even Estrada rarely interrupted the interventions of delegates. This is particularly important for developing countries who are thereby provided with a valuable forum to air positions that they feel are often ignored by their more powerful counterparts in the industrialized world. As Hyder (1994:203) comments:

Some scholars have, however, raised questions as to the equitable nature of such sovereign equality, noting, for example, that it takes no account of population size, contribution to the problem, or nature of commitments under the regime (see Franck, 1995).

137 “The UN system permits all sides to express their opinions from a position of sovereign equality and, therefore, to maintain self-respect. Countries acknowledged to have dominant economic, political and military power are forced to take into account the contrasting views of many other countries, however weak those other countries may be”.

Given its widespread application in the UN system, the equal say rule was largely taken for granted in the Protocol negotiations. A Chinese delegate, however, illustrated the underlying importance of this provision when he affirmed, during a CoW plenary meeting: “We [the G-77 and China] will not be pressured into accepting this proposal. This is not Bretton Woods^^, This is the United Nations” (CoW, 1997h).

Other procedural rules seek to give practical effect to formal procedural equity by promoting a level playing field, that is, trying to compensate for differing resource levels and negotiating capacity among parties. Interpretation and translation requirements, for example, help to counter the massive disadvantage faced by non-Anglophone delegates and is of particular use to developing countries and EITs who do not have the resources to pay for their own language services. Advance circulation of documents, in turn, seeks to give all delegations, especially small ones with limited analytical capacity, time to adequately consider proposals before being required to discuss or decide upon them. The established practice of ‘no more than two meetings’ is similarly intended to maximize opportunities for small delegations to participate in negotiations.

The procedural rules also have an important transparency dimension, with the main rules in this regard being the quorum requirements and the public nature of meetings. In addition, minimizing parallel negotiations through the no more than two meetings practice, broadening the accessibility of proceedings and documentation through interpretation and translation, and allowing time for the consideration of proposals before decisions are taken, all also increase

^ The World Bank and International Monetary Fund do not operate on a one-member-one-vote system.

138 opportunities for scrutiny of the negotiation process by both parties and non-state organizations.

In promoting procedural equity and transparency, however, the procedural rules also tend to raise the transaction costs of negotiating. Interpretation requirements, the standard meeting schedule and the no more than two meetings practice, for example, all limit the time available for negotiation and opportunities for convening a meeting at short notice. Rules concerning translation and advance distribution of documents are also potential curbs to spontaneity. Moreover, formal procedures for seeking the floor, coupled with the discipline imposed by simultaneous interpretation, place obstacles to the uninhibited exchange of views, while openness to the public can encourage posturing and inflexibility (see also chapters 6, 8).

Pragmatic application, bypass and relaxation Given the higher transaction costs that they imposed, the structure provided by the procedural rules proved to be a loose one in the Kyoto Protocol negotiations. The rules were used to structure and order the negotiation process as well as to enhance procedural equity and transparency, yet at the same time they were applied pragmatically, regularly bypassed and, at times, relaxed, when the transaction costs that they imposed threatened to obstruct the negotiations.

A good example of thepragmatic application of the procedural rules is that of the quorum. The production team verified that representatives of the main interest groups were present in the plenary room before starting a meeting, but did not actually check the number of countries. Such a de facto quorum was in fact more important than a numerical threshold, which could be reached simply through the presence of the 0-77, without any Annex I party. Transparency was thus maintained by respecting the spirit of the procedural rules, while avoiding an unnecessary rise in transaction costs by adhering to their letter.

The most common example of the bypassing of procedural rules was the convening of informal groups where the rules were either not applied, or applied only in part. It is indeed commonplace in the multilateral arena to refer

139 negotiations to informal groups, which, as Iklé (1964:118) puts it, “sometimes help to avoid the more irrational and inefficient aspects of the verbal exchange at the conference table”. It was precisely to promote freer, more spontaneous debate among parties that Estrada convened informal non-groups from AGBM 6; as negotiations intensified, further informal groups broke off from these. Issues relating to informal groups are discussed in chapter 6.

As well as being bypassed through the convening of informal groups, the procedural rules were also sometimes relaxed during formal meetings in the face of practical constraints. On a small number of occasions, for example, formal plenary meetings of the AGBM or CoW extended beyond their scheduled meeting time and were held without interpretation. Official decision documents, usually issued in all languages, were also sometimes circulated and adopted only in English. Relaxation of the procedural rules was, however, often contested, notably by the G-77 and China, given that developing countries were most in need of their procedural equity and transparency safeguards. Greatest resistance was encountered when seeking to conduct formal meetings without interpretation or to relax the no more than two meetings practice. By way of illustration, at Estrada’s proposal to hold a late-night meeting without interpretation during COP 3, Uruguay responded “in view of the equality o f the parties, we should have interpretation services for all meetings regardless of how late they are” (CoW, 1997e; emphasis added).

The willingness of parties to relax the rules varied, and was largely a function of expediency and political will. At AGBM 2, for example, Estrada was forced to close a relatively routine meeting although he had not completed the list of speakers as parties refused to carry on for 15 minutes without interpretation (AGBM 2, 1995a); this may have been because parties did not want to set a precedent so early in the process. At AGBM 3, however, delegates agreed to adopt the draft report and close the session (both procedurally, if not always substantively, significant events) without interpretation when the final meeting overran beyond 13:00 (AGBM 3, 1996b); this was almost certainly because they preferred to free themselves early to prepare for their journeys home, rather than return to the conference centre after lunch.

140 As negotiations advanced and the need to maximize efficiency increased, the G-77 and China showed greater flexibility in agreeing to bypass and relax the rules. The Chairman of the G-77 and China, for example, acceded to Estrada’s proposal during COP 3 to “have a six hour meeting this evening without interpretation”, stating that “we, in the G77 and China, are willing to stay on in order to complete the work” (CoW, 1997c). A related situation unfolded with regard to the no more than two meetings practice. The G-77 and China kept a close eye on the organization of the negotiations at AGBM 6 and 7 when informal groups were first convened to ensure that only two meetings were held in parallel. During an AGBM 7 plenary meeting, for example, Iran noticed that a proposed scheduling change would mean that three meetings would take place in parallel, and immediately intervened to object (AGBM 7, 1997c). However, at COP 3 (and to a lesser extent AGBM 8), the G-77 and China implicitly acquiesced to the convening of multiple parallel informal meetings^^

The most striking example of the relaxation of the rules concerns the adoption of the Protocol itself, which took place in procedurally irregular circumstances. Due to the overrunning of COP 3 by almost a day, the final hours of negotiations in the CoW and the entire final COP plenary meeting, including the formal adoption of the Protocol and other decisions, took place in English only as the interpreters had left to catch their flights home (Oberthiir and Ott, 1999). Moreover, it is almost certain that there was no quorum to take a decision, as many developing country delegates had also left to catch UN-funded flights (Werksman, 1999). One interviewee (AOAC2) recalled, “I remember being alone in that room, I don’t know how many delegations were there, but there couldn’t have been more than a dozen”. Furthermore, although there is no specific rule on this, no mandate had been obtained from parties to extend COP 3 beyond its scheduled end on 10 December. However, these irregularities generated only one objection, from the Russian delegate over the lack of interpretation, who nevertheless did not insist on the suspension of the negotiations (CoW, 1997k). It was probably critical, however, that the final text of the Kyoto Protocol was

For a different experience in this regard, see Appendix C on COP 6 part I.

141 available in all six languages for adoption, in accordance with the procedural rules; whether delegates would have conceded to adopting the written text of the Protocol in English only, in addition to all the other procedural irregularities, is impossible to tell.

The Protocol negotiations thus show how political will can override procedure. When faced with practical imperatives, particularly time pressure, parties did consent - developing countries more reluctantly than others - to relaxing procedures even within formal meetings. An important factor in this consent was the care that the production team took to apply most of the procedural rules most of the time over the course of the negotiations. Estrada desisted, for example, from convening any informal groups until AGBM 6, the no more than two meetings practice was respected until COP 3, and it was similarly only at COP 3 that the number of groups meeting without interpretation became significant. Even then, as discussed in chapter 6, formal plenary meetings with interpretation were held daily to maintain a degree of transparency and procedural equity. This undoubtedly engendered goodwill among parties, while Estrada’s closeness to developing countries may also have softened the G-77 and China’s resistance to procedural breaches. The combination of all these factors meant that, when it came to the crunch, parties were prepared to sacrifice some procedural equity and transparency for the sake of efficiency and, ultimately, reaching agreement.

Procedure as strategy The procedural rules of the climate change regime were also harnessed as strategic means to pursue political objectives. This is not unusual. As Kaufmann (1988:40-41) notes, “‘procedure’ and ‘substance’ ... are supposed 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 substance.” Kolb and Faure (1994:128), in turn, agree that “parties play out their strategies within the structures and play with the structures according to their strategies”.

142 There were many cases of the use of procedure as strategy in the negotiations, the meaning of consensus discussed below being a good example. It was also common for some parties, when faced with a proposal to which they objected, to invoke procedural arguments for why it could not be discussed (e.g. non availability in all languages, insufficient time to consider it, more than two meetings going on at one time). The line between legitimate and illegitimate procedural challenge was a fine one. Most concerns raised over the relaxation of procedure were no doubt motivated by genuine concern over loss of procedural equity and transparency. Nevertheless, it was also clear that obstructionist parties sometimes insisted on the rigid application of procedure as a means of delaying the negotiation process. It is no coincidence, for example, that OPEC countries were the greatest sticklers for procedural adherence. According to Grubb and Yamin (2001:270), “established UN procedures are slow and painful, and certainly in the history of the climate change negotiations they have been deliberately used by ‘laggard’ countries to prevent effective international policy making on climate issues”. Estrada, however, was adept at distinguishing legitimate concerns from illegitimate filibustering and was both determined to resist the latter and skilful at doing so. At the opening of AGBM 3, for example, he made the following statement with implicit reference to procedural wrangling over the AGBM bureau (see chapter 4):

“From the very beginning, we have had a group of delegations which I feel has tried to slow down the progress of our work...it is my intention to overcome that obstacle.. .1 shall do everything in my power to avoid that our feet get caught in a net of procedural matters or small questions with infinite repercussions and implications ... and thus delay our work” (AGBM 3, 1996a).

The secretariat similarly exerted considerable effort to ensure that the most visible and highly regarded procedural rules (e.g. provision of interpretation, making documents available as promptly as possible) were adhered to in order to minimize the scope for opportunistic procedural objection.

There were also more serious explicit attempts at obstructing negotiations through procedure. One example was the dispute over the composition of the AGBM bureau discussed in chapter 4. In another example, at AGBM 3, Saudi

143 Arabia put forward an interpretation of the six-month rule whereby there could be no further negotiation on the Negotiating Text between its circulation and its adoption. This would effectively have required the negotiations to be completed by 1 June 1997, an inconceivable prospect. For many, this was an ill-disguised attempt to sabotage the negotiations. ECO (1996a) commented:

“Defying both legal precedence and common sense, the forces of darkness attempted to use yet another procedural loophole to strangle any attempt at progress in the AGBM. With predictable cynicism, business lobbyist lawyers are apparently advising their OPEC clients that they can ambush the Berlin Mandate negotiations at the last minute by relying on Article 17.2 of the Convention [setting out the six-month rule]”.

However, on instruction from Estrada, the secretariat obtained a legal opinion from the UN Office of Legal Affairs, which clarified that “the parties can ... still continue negotiating on the proposed text up to the end of the third session... The Convention does not imply that if a proposed protocol is circulated six months before the session, then it must be adopted by that session without any modifications” (FCCC, 1996). This legal opinion was circulated at AGBM 4, and the matter was not raised again. However, in order to stave off potential challenges, the production team took great care to secure a written common understanding of the meaning of the six-month rule from the AGBM when Estrada obtained a mandate to prepare the Negotiating Text at AGBM 6. Based on detailed speaking notes provided by the secretariat, Estrada stated in plenary that:

“Proposals submitted after the production of the Negotiating Text should be clearly derived from concepts already included within it and should not contain substantially new elements... However, it is not necessary to include all the detail derived from such concepts”.

This statement was accepted without comment and inscribed in the AGBM 6 report, which meant it could be referred to in the event of future controversy (FCCC/AGBM, 1997b). To avoid any possibility of challenge, the secretariat also went to extra lengths to ensure that the Negotiating Text was indeed circulated in all languages to all parties long before the deadline.

144 DECISION-MAKING

Decision-making rules are a critically important dimension to the procedural component of a regime, as it is through these rules that the regime must sustain the delicate balance between state sovereignty and global interests upon which it is based (see chapter 2; Werksman, 1996).

The absence of an agreed decision-making rule for the adoption of protocols was a major underlying theme in the Kyoto Protocol negotiations. As Werksman (1999:6) notes, “what voting rules should operate in the vacuum left by Rule 42 [on voting] has been the subject of intense debate and speculation”. While “a technical solution to this deadlock might lie in the rules of customary international law, most delegates seemed to concede that, in the absence of a specified majority voting rule, decisions would have to be taken by consensus” (op. cit.). Consensus is indeed widely used as a decision-making rule in the UN system, particularly in multilateral treaties (Dell, 1989), given that “states generally eschew the open confrontation that can come with voting” (Werksman, 1999:7), even when majority rules are in place (Sanders, 1989).

The contested meaning of consensus Despite its pervasiveness, consensus, whose literal meaning equates with “common feeling” or “concurrence of feelings” (Schemers and Blokker, 1995:772), is “a rather elusive decision-making process” (Evensen, 1989:78), whose operational meaning is not defined in the Convention. Most theorists and practitioners agree, however, that consensus is distinct from unanimity, and is generally defined negatively to mean that there are no stated or formal objections to a decision (Yefimov, 1989; Schermers and Blokker, 1995; Werksman, 1999; FCCC, 2000). This “enables parties to acquiesce in the outcome of a decision without having to express open agreement or disagreement” (Szell, 1996:211), in other words, a party could reluctantly consent to a decision, but then ask for its concerns to be noted in the report after the decision is adopted (FCCC, 2000). The converse of this, however, is that a small group, or arguably even a single party, could formally state that there was no consensus on a particular decision, thus potentially preventing the decision from being adopted. The qualified nature

145 of the latter point demonstrates the ambiguity and fluidity of consensus; can the formal objection of a single party block a decision? If not, how many objections does it take for there to be no consensus? One interviewee (ACNG02) queried, “if you are adopting something by consensus, what does that mean? Does that mean there are no objections? Does it mean only one objects? If one country pipes up, does it mean you have no consensus? It’s not 100% clear”.

The ambiguity of consensus endows the presiding officer with “considerable discretion to assess whether a party is registering a formal objection, or some lesser level of discontent that will allow a decision to go forward” (Werksman, 1999:7). Given his determination to reach agreement, it is unsurprising that Estrada’s interpretation of consensus was a loose one. Ultimately, however, the presiding officer can only declare consensus with the acquiescence of the parties, and the meaning of consensus thus became an object of struggle between Estrada, obstructionist parties, and others in the negotiations, as these players sought to shape its meaning for their own strategic purposes^\ The exchange in box 5.1 over the adoption of the AGBM 2 agenda provides an example of this, as does the exchange reproduced in box 5.2 later in this chapter. Both Estrada and obstructionist parties flexed their muscles throughout the negotiation process, seeking to lend weight to their own interpretation of consensus in the taking of minor decisions, in order to send signals on how they planned to act for the final, major decision on the Protocol itself.

There are many examples of multilateral negotiations where the definition of consensus was contested (e.g. see Van Gorkom [1989] and Renninger [1989] in the context of negotiations on nuclear accidents under the International Atomic Energy Agency and the failure to launch global negotiations at the 11“" Special Session of the UN General Assembly, respectively). Indeed, as Werksman (1999:7) notes, “institutions do ... either through rules or practice, develop their own highly contextual definitions of consensus”.

146 Box 5.1: Consensus contested

Estrada: “I have the feeling that for the wide majority of the members of this committee the agenda is acceptable, then, on that understanding, the agenda... is adopted [Gavel]”.

Saudi Arabia: “we accept your ruling because we understand the issue ... will be discussed here. Otherwise if only one Party objects to anything, there will be no ruling, even if you are trying to ruleP

AGBM 2 (1995b); emphases added.

However defined, consensus is typically regarded as the decision-making rule of choice in multilateral negotiations, and particularly so in global environmental negotiations, where the committed participation of all states is viewed as critical (Sjostedt et al., 1994b). This was reflected in the majority of interview responses. One interviewee (ASSBC2) remarked:

“This is the practice within the environmental treaties, you do everything by consensus, even when you have rules of procedure. I really don’t know what would happen if we put anything to the vote... people try not to do that...”.

A number of interviewees emphasized the potential problems associated with a voting rule in the context of a global issue requiring the engagement of all countries. For one interviewee (AOACl), “.. .once you make the leap to a global regime, I don’t think you can then exclude key interests through the voting rules. You have to make the regime inclusive”. Several interviewees expressed concern that voting would impact on the legitimacy of the agreement and alienate those parties that lost the vote, meaning that they would be less likely to ratify and implement it. Such views are also shared in the literature. Szell (1996:213), for example, notes that “parties are more likely to respect a decision if they subscribe to its terms than if they are driven reluctantly into observance by means of a majority decision”.

The ‘consensus imperative’ Notwithstanding the desirability of consensus decision-making, provisions for majority voting “if all efforts at consensus have been exhausted and no agreement

147 reached” are common in multilateral environmental agreements (Szell, 1996; Werksman, 1999). Placing emphasis on consensus while providing for last resort majority voting in this way aims to balance out the concerns of majorities and minorities (Werksman, 1996). As Szell (1996:212) explains:

“Such formulations, by specifying a majority vote as a last resort for questions of substance help those parties concerned about the potential of consensus to enable important progress to be blocked by just one dissenting party, whilst the requirement to make every effort to reach consensus gives comfort to those parties which dread a decision being taken against their deeply held views”.

That last resort majority voting was precluded for the adoption of a protocol and indeed for almost all other decisions under the regime, and therefore that these decisions could only be taken by consensus, had a profound effect on the Protocol negotiation process. For one interviewee (SECl), “it hung over the process like a cloud.. .the dynamics of the AGBM would have been different with a voting rule in place”.

At one level, the impact of this ‘consensus imperative’ could be said to have generated greater procedural equity in the negotiations, as it meant that even the special interest views of small minorities had to be accommodated in a consensus, rather than simply being outvoted. As one interviewee (BINGO 1) argued, “if the case deserves attention and they [minorities] could be steamrollered, you would want them to have the opportunity to reach a decision by consensus...”. The resulting content of the Protocol was therefore probably more integrative, accommodating the positions of a greater range of parties, than it would otherwise have been with a voting rule in place. One interviewee (AOACl) summarized this effect of the consensus imperative as follows:

“You have to buy them [special interests] in...politically or economically you have to buy them in, which is a different dynamic, and that’s the dynamic that’s been followed in the climate change regime. Negotiated buy-in.. .that’s the logic of no majority voting rules”.

The best example of such negotiated buy-in is that of the OPEC countries and their specific proposal, later supported by the G-77 and China, for a fund to

148 compensate them for potential economic losses due to climate change mitigation action. This proposal was strongly and universally opposed by Annex I parties. However, because of the imperative need for consensus, the Annex I parties engaged in negotiations on it, eventually agreeing a text that all could live with. As Estrada stated in his interview, “we got the agreement by consensus, simply by offering the oil producers some paragraph in article 2 and another paragraph in article 3 [on possible adverse effects of mitigation action]...”. Without the implicit threat that OPEC would block a consensus, it is unlikely that Annex I parties would have agreed to the inclusion of these clauses in the Protocol, or even talked about the issue. Moreover, there is evidence that ‘side payments’ were also made to OPEC countries. Oberthiir and Ott (1999), for example, reveal that Japan promised to review its oil imports, establish stronger bilateral contacts and take steps to boost Japanese investment in Saudi Arabia in return for that country’s cooperation in Kyoto.

Another example is that of Australia^\ whose demand for a significant emissions growth target was almost unique among Annex I parties and not viewed with sympathy’^'^. However, Australia succeeded in achieving a +8% target, in the face of rumours that it was otherwise prepared to walk away from the negotiations (although not necessarily to block consensus). Moreover, in the final meeting of the CoW, Australia secured a clause in the Protocol relating to the treatment of carbon sinks that applies almost exclusively to that country to considerably weaken its target (Oberthiir and Ott, 1999^ There is little doubt that other parties who might have objected did not query this clause for fear of upsetting a consensus. On this issue, one interviewee (ACNGOl) stated, “I don’t think it [Australia] would have ever asked if there had been a two thirds majority vote”.

The foregoing examples suggest that the greater procedural equity achieved by the consensus imperative gave a disproportionate advantage to the more laggard parties, thus shifting the resulting agreement towards an environmentally weaker substantive content, what Wettestad (1999:25) calls the “law of the least

On Australia’s position relative to climate change, see Bulkeley (1999). A similar demand from Iceland was considered more sympathetically, given Iceland’s low emissions baseline, small emissions per capita and clean energy economy.

149 ambitious”. A similar viewpoint is articulated by Szell (1996:212): “consensus respects the doctrine of sovereign equality of states but, by placing a veto in the hands of each party, it effectively ensures that the convoy advances at the pace of the slowest vessel”. A consensus decision-making rule does indeed tend to lead to “least common denominator solutions” (Werksman, 1996:60), as it is parties with the highest BATNA, and therefore typically advocates of the weakest substantive effectiveness, who are most prepared to break the consensus. The minority view of AOSIS, for example, advocating a very strong target, did not enjoy similar leverage to that of OPEC or Australia.

On a day-to-day basis, the consensus imperative also raised the transaction costs of the negotiations, as greater effort was required to secure even minor decisions (Brown, 1996). One interviewee (J3) commented, “it’s very frustrating to experience the lack of voting rules and not being able to get firm decisions before you really have to...”, while another (AOSIS 1) remarked, “our inability to take any votes ... makes life difficult, because ... you have to deliberate so intensely over minutiae because of the wishes of a small group...”.

Moreover, as Albin (2001) notes, a consensus requirement can allow a handful of parties to hold the vast majority hostage. There was certainly the fear in the Kyoto Protocol negotiations, that, at the moment of adoption of the Protocol, a small group of obstructionist parties, or even an individual delegation, would declare that there was no consensus and prevent the decision being taken (Werksman, 1999). According to Oberthür and Ott (1999:40, nl6) the consensus imperative was “one of the major obstacles on the road to Kyoto” (see also Newell and Paterson, 1996). An interviewee (A0AC2) described the threat of procedural blockage in the following terms:

“It definitely was a big issue in the corridors.. .what are we possibly going to do when Saudi Arabia and Kuwait raise their flags. At the end of the day it didn’t matter... But the stakes had never been as high as they were in Kyoto, so there was legitimate reason to suspect that, well, this really will be where OPEC draws the line in the sand, and says ‘we’re willing to put up with the anger of the international corrununity that it was clearly us that blocked the decision, because the decision has such a potential impact on our interests’. But at the end of the day, they didn’t”.

150 Obstructionist parties rarely explicitly threatened to block consensus, although they sometimes alluded to the possibility. At the roundtable on policies and measures at AGBM 4, for example, where the informality of the event prompted a more open exchange (see chapter 6), Saudi Arabia commented “as long as we are going to have consensus for adopting a protocol or whatever, it will be very difficult unless we accommodate the concerns of other parties [i.e. OPEC]” (AGBM 4, 1996b). Moreover, the very insistence of OPEC states on a consensus rule for the adoption of protocols (which they achieved by default through the non-adoption of the rules of procedure) roused suspicion that they hoped to use the leverage granted to them to veto agreement (Oberthür and Ott, 1995).

Overcoming the threat of procedural blockage Players who feared that the final outcome might be blocked sought to find ways round this potential procedural impasse. Estrada was particularly active in this regard, publicly stating on several occasions that he would not allow a small minority of parties to block the adoption of the Protocol (see introductory quote to this chapter and final citation in box 5.2). In order to anticipate and prevent procedural blockage, the production team, along with certain parties, employed a series of strategies, discussed below.

Keeping the amendment option open The adoption of a protocol at COP 3, although often assumed, was not obligatory, as the Berlin Mandate provided for a protocol or another legal instrument to be adopted. In practice, “another legal instrument” was interpreted as an amendment to the Convention. The option of adopting an amendment was floated at early AGBM sessions. The report of AGBM 3, for example, records that, although many parties stated their preference for a protocol, others noted that an amendment would be procedurally simpler, and “a more viable option” in view of the lack of agreement on the rules of procedure (FCCC/AGBM, 1996d). Likewise, in its summary report on COP 2, ENB (1996d) noted, “without agreement on the voting procedures for a protocol (rule 42), observers fear that COP 3 may be forced to settle for an amendment to the UNFCCC, rather than a protocol”.

151 The amendment option had its drawbacks. Firstly, although it could, in theory, contain the same substantive provisions as a protocol, it was generally considered an inferior instrument. An amendment would not be as politically visible as a new treaty, and the ‘framework convention - protocol’ approach successfully followed by the ozone regime had led to expectations that this would also be applied to climate change (see chapter 3). Moreover, an adopted amendment would require ratification by three-quarters of Convention parties before it could enter into force (Article 15). Given the near universality of the Convention, this would inevitably take many years. A protocol, however, could define its own (presumably less onerous) entry into force procedures. For these reasons, the amendment option threatened to fade from the agenda as the formal proposals of parties all either expressed preference for, or assumed, the adoption of a protocol (FCCC/TP, 2000a).

However, in direct response to the threat of procedural veto of a protocol, Estrada took action to keep the amendment option open as a last resort, and to ensure that parties were aware of this option. The secretariat received the following e-mail from Estrada, written on his journey back from AGBM 6, where he had secured a mandate to prepare the Negotiating Text:

“In my long fly [sic] back, I spend hours thinking on how to avoid a blockage of our negotiations in July/August. The “compensation” idea was introduced to create a package and that package plus the need for consensus are an excellent combination to block the process. If so, the way out is the amendment and we shall have that clearly in the negotiation text. To prepare the way, we need to be explicit in the introductory remarks of the negotiating text” (Estrada, 1997a; emphasis added).

In line with these instructions, the secretariat included language in the introduction to the Negotiating Text highlighting the amendment option and explaining how the text could be modified, if necessary, into the structure of an amendment (FCCC/AGBM, 1997c). The production team included similar, although less detailed, language in the introduction to the Chairman’s Text (FCCC/AGBM, 1997f). At AGBM 8, Estrada again sought to ensure that the amendment option was kept open by obtaining a mandate to prepare the Revised

152 Text that would go to COP 3 also in the form of an amendment. This document (FCCC/CP, 1997b) was formally introduced by Estrada to AGBM 8 part II as “a fall-back possibility, if the protocol is blocked” (AGBM 8, 1997h), and later to COP 3, along with the Revised Text itself (FCCC/CP, 1997a). As it became clear that resort to an amendment would not be needed, subsequent draft texts were prepared only in the form of protocols, and the amendment option was never invoked.

Flagging the possibility of adopting an amendment served two main purposes. Firstly, notwithstanding the drawbacks involved, it drew attention to a real alternative that parties could consider in the event that the consensus imperative prevented the adoption of a protocol. Secondly, and perhaps more importantly, highlighting that a new legal instrument, containing the same substantive provisions, could be adopted without consensus sent an important psychological and political message to obstructionist parties that the negotiations could not be so easily held hostage.

Fighting procedure with procedure Several parties explored other procedural means of overcoming the anticipated veto. In May 1997, the Netherlands put forward a proposal, on behalf of the EU, to amend Article 17 of the Convention to allow a protocol to be adopted by a vote (Oberthür and Ott, 1999; Werksman, 1999). The Netherlands proposed that this amendment be provisionally applied, pending its entry into force, so that it could be used to adopt the Protocol at COP 3 (FCCC/TP, 2000a). A few days later, the UK submitted a further proposal to allow an amendment to define its own entry into force procedures, bypassing the provisions of Article 15. Such an approach, which had already been used under the Montreal Protocol, would avoid the lengthy entry into force requirements for an amendment under the Convention, thus removing one of its disadvantages (FCCC/TP, 2000a).

The import of these proposals, and the message they sought to convey, is illustrated by the fact that, in implicit response to the proposed Dutch amendment and within less than five days of its distribution, Kuwait submitted an additional proposed amendment, this time to Article 4.4, which would have significantly

153 expanded the scope of funding for developing countries under the Convention (Werksman, 1999; FCCC/TP, 2000a).

Estrada, however, decided not to discuss the Dutch or UK proposals in the AGBM, fearing that it would lead to time-wasting, and harbouring doubts as to their merits. Estrada surmised that, given their procedural originality, if parties could summon the will to adopt one or the other proposal, they would also have the will to adopt a protocol by consensus. The EU proposal was discussed in the SBI, but did not enjoy much support, and was eventually withdrawn in the first few days of COP 3. Kuwait followed suit by withdrawing its proposed amendment. The UK proposal was included in the amendment version of the Revised Text as a proposed article on entry into force, but was never subject to discussion.

It is unclear whether the Dutch or UK delegations ever seriously intended that their proposals would be adopted, or whether they simply aimed to send out yet another message to the obstructionist parties. According to its original author, the intention had not been for the Dutch amendment to actually be adopted, but simply to demonstrate to any parties intending to block the adoption of a protocol that, with political will, the international community could still find ways of going ahead (pers. comm., 1997a). The actions of the Dutch and UK delegations thus reinforced Estrada’s own efforts in keeping the amendment option open.

Forcing consensus As noted in chapter 4, Estrada was a brave decision-maker, and one of the main strategies that he used to try to overcome procedural blockage was to exploit the leverage granted to him by the lack of an agreed definition of consensus (Oberthür and Ott, 1999). Estrada thus forced through several decisions in the face of dubious consensus (such as the exchange reproduced in box 5.1), sending out the message that, if necessary, he would adopt the Protocol itself in a similar way.

154 • The ‘almost vote’ The most extreme example of where Estrada sought to “test the breadth of a working definition of consensus” (Werksman, 1999:6) was during negotiations on policies and measures at AGBM 8 where, after protracted debate over the wording of a relatively minor piece of text, Estrada declared that there was consensus to adopt one of the options, although three parties (Australia, Canada, US) had argued against it. Estrada stated that, in order to overturn his ruling, there would need to be a two-thirds majority vote of parties (AGBM 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 Estrada could rely on these unadopted and unapplied provisions to force a vote, however, was dubious (Werksman, 1999). Many delegates intervened to urge him not to hold a vote. Estrada 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 outcome (see box 5.2), usefully illustrates several points raised in this chapter, including contrasting definitions of consensus, the reluctance of parties to vote, the implicit threat of OPEC states to block consensus in Kyoto, and Estrada’s resolve to force decisions through.

The outcome of this procedural experiment was double-edged. On the one hand, Estrada succeeded in pushing through his interpretation of consensus, as the challenge to his ruling was withdrawn. His actions were therefore significant in the message they sent out that he was willing to force consensus on the back of the objections of a small group of parties, and that those parties were not prepared to challenge his ruling. This is, indeed, how Estrada recalled the incident in his interview: “I remember once ... when I provoked a challenge from Venezuela, in order to show how I wished to go, and they chickened out!”. One interviewee (ENGOl) agreed that “what he basically showed was that if you’ve got the political will and you’ve got the majority of the room, you can move it”.

155 Box 5.2: The ‘almost vote’

Estrada: “if there are no other comments ... I will rule that there is consensus to keep that text with the exception of 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 your definition of consensus. . ..consensus means lack of a stated objection, and I have very clearly stated my objection, as have others...”

Venezuela: “... there can be no general consensus if any single country, and far less if three countries, raise objections. We are ready to contradict your ruling...”

Estrada: “OK. I have ruled that we have consensus in a situation where we have three countries with a different view. This point has been challenged by .. .Venezuela. In order to overcome my ruling, he needs two-thirds of the votes ... I will call a roll-call ... that will clarify the rest of the work for us...”.

Egypt: “.. .legally-speaking .. .you have a correct ruling .. .What others were speaking about was unanimity ... but your ruling means we have consensus minus, which means you reflected the sense of the negotiating process ... I appeal to everybody to go ahead with your ruling without... voting which would create a new precedent ...”

Mauritania: “We all cherish your authority... We are preparing a new legal agreement, we all want it to be ratified by every country ...”

Hungary: “There is no need for any general consensus. You were very good in the past, and you will be very good even now, at understanding the general feeling in the room...”

Saudi Arabia: “ ... There is no need to use your hammer ...we ask you to relax!”

Estrada: “I understand the challenge to my ruling has been withdrawn, so we don’t need to go to the vote”.

Kuwait: “Consensus, it is a very important matter. It will face us in Kyoto ... I want an official United Nations legal definition of consensus.

Estrada: “From the very beginning ... a group of countries was trying to stop the process ... / will do everything to overcome those countries... I am not going to be [held] hostage”.

AGBM 8 (1997d); extracts, emphases added.

156 On the other hand, the issue in question was of little significance, and it is highly doubtful that Estrada could have used the same trick for the adoption of the Protocol itself. For Werksman (1999:7), the reluctance of parties to go along with Estrada’s procedural manoeuvre and take a vote demonstrated that it would not be possible to rely on finding “a technical way out” to adopt a protocol in the absence of consensus. This, in itself, was a useful point to make clear.

• The Geneva Ministerial Declaration Another example of the forcing of consensus during the Protocol negotiations is that of the Geneva Ministerial Declaration (FCCC/CP, 1996c). This Declaration, which endorsed the findings of the IPCC’s Second Assessment Report and called for the adoption of legally-binding emission targets at COP 3, was negotiated by ministers at COP 2.

The negotiations made it clear that there would be a “trade-off between the strength of the content and the number of supporters” (Oberthür, 1996:199). The strength of the Declaration was too great for a small minority of parties, namely, 13 OPEC states, the Russian Federation and Australia^', who raised formal objections to it (see FCCC/CP, 1996b). However, the majority of parties were not prepared to weaken the Declaration to try to muster a consensus, but instead sought to move ahead and give recognition to it in whatever way possible. As ECO (1996c) later commented, “far better to have a text supported by the vast majority of countries that actually contributes to progress in these negotiations, than a consensus declaration that adds nothing to the Berlin Mandate”. Therefore, on advice of the secretariat, the COP 2 President proposed that the Declaration be taken note of, with objections recorded in the report of the session (FCCC/CP, 1996b). The “sustained applause of the great majority of delegations supporting the procedure proposed by the President” (Oberthür, 1996:200) undoubtedly influenced the opposing parties’ decision to acquiesce to this proposal.

New Zealand raised concerns about a certain point, but stopped short of lodging a formal objection.

157 Although it was clear that it would never be possible to simply take note of the Protocol in the same way, the fact that formal recognition of the Declaration was achieved despite the objections of a small group of parties, and that the identity of these parties was clearly revealed, was critical to underscoring the will of the majority of parties not to let a small group prevent progress (Oberthür, 1996). According to Yamin (1998:117), “OPEC and other laggards saw clearly that... the COP could outmanoeuvre them politically, if not legally”. This view was echoed by an interviewee (ENGOl):

“The declaration was quite important... because having a footnote of the parties that didn’t support it was such a clear indication of the special interests that were trying to block the process and the rest of the world. It was a really important moment when actually they allowed ... the declaration to move forwards and it became the basis for the beginning of a legally binding target”.

The adoption of the Kyoto Protocol When it came to adopting the Kyoto Protocol itself, however, the obstructionist parties “did not use the power conferred upon them by the consensus requirement” (Ott, 1997:175). The unexpected conclusion to the negotiations, therefore, was that Estrada’s call for the CoW to “recommend the adoption of the Protocol to the Conference [of the parties]by unanimity'' (CoW, 1997k) was both accepted and applauded. This (procedurally unnecessary) call for unanimous, rather than consensus, acceptance, reflects the relief and triumphalism felt by Estrada when he realized there would be no formal objections to the adoption of the Protocol.

A number of factors are likely to have contributed to this outcome, many of which were outside the remit of the organization of the negotiation process. The side-payments and concessions obtained in the negotiations by potential blockers, along with the diplomatic pressure placed on them clearly played an important, maybe pivotal, role, as did, perhaps, OPEC’s realization that the Protocol was too weak to seriously affect their economies. In addition to these factors, however, by demonstrating that it was possible to get round a veto, either through procedural means or by forcing consensus, the production team and certain parties certainly contributed to assuaging the threat of that veto.

158 SUMMARY AND CONCLUDING REMARKS

At the start of this chapter, we saw how the procedural rules for the conduct of business are focused chiefly on promoting procedural equity and transparency and, because of this, they can also imply high transaction costs. In order to increase the efficiency of the Protocol negotiations, especially in its latter stages, the production team thus bypassed and relaxed some of the rules. Although developing countries sought to uphold the rules and their resulting procedural equity and transparency as much as possible, they did concede to their bypassing and relaxation when it became imperative to advance the negotiations. It was critical, however, that the rules had been broadly respected as much as possible in the negotiation process. Another dimension to the rules for the conduct of business was the way in which these were used for obstructionist purposes, thereby reducing the efficiency of the negotiations. In this regard, it was important that the production team was able to address such procedural opportunism through firmness and by minimizing opportunities for procedural challenges.

In terms of the decision-making rules, the chapter explained why the Protocol had to be adopted by consensus. The net effect of this consensus imperative in terms of the effectiveness criteria is ambiguous. It bolstered procedural equity, by ensuring that the views of small minorities would be taken into account, thereby securing the greater inclusivity and legitimacy of the final agreement. However, the consensus imperative combined with the presence of parties with very high BATNAs, some to the extent that they preferred failure, had the effect of weakening the substantive strength of the eventual agreement while raising the transaction costs of the negotiations. Moreover, it opened up the possibility of veto by a small minority of obstructionist states that itself would have been highly procedurally inequitable.

That the consensus imperative did not lead to the vetoing of the Protocol was due, at least in part, to the mitigating actions of the production team, especially Estrada, reinforced by similar actions from certain parties, notably the Netherlands

159 and the UK. Indeed, the lack of a voting rule and an unclear definition of consensus in the context of “a very tough Chairman with creative definitions of consensus” (J3) may even have been an advantage to reaching agreement. As Wettestad (1999:216) notes, Estrada was able to cleverly adapt the consensus requirement “to the various decision challenges at hand”, introducing an element of flexibility into decision-making that was critical given the complexities and sensitivities of the negotiations. Several interviewees agreed that the absence of formal decision-making rules may have been “a bit of a blessing in disguise” (11). The potential advantages of the flexibilities of consensus, however, were only realized because of the presence of a strong presiding officer with good judgment, a situation that cannot always be guaranteed in multilateral negotiations.

160 CHAPTER 6

THE STAGE FOR ACTION: NEGOTIATING ARENAS

“...one of the central organizational problems [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 collective learning process goes on, where solutions are tested and finally agreed on before being referred to the plenary” (Freymond, 1991:130).

INTRODUCTION

The Kyoto Protocol negotiations played out on a variety of stages, with the spotlight shifting from stage to stage over the course of the negotiation process. These stages, depicted in figure 6.1 below, included the formal plenaries of the AGBM and CoW^\ informal roundtables, informal groups and consultation groups, as well as unofficial groups and exchanges, lying outside the remit of the organization of the negotiation process. The choice of stages for a negotiation, and how these are managed both individually and collectively, is a key dimension to the organization of the negotiation process, not least because it is so open to policy manipulation. 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 (Freymond, 1991). This chapter begins with observations on the AGBM and the CoW, before examining each negotiating arena of the Kyoto Protocol negotiation process in turn, paying separate attention to the choice of a CoW plenary as the stage for the negotiation ‘finale’.

This chapter does not give separate consideration to the role of the COP as, to a large extent, having launched the negotiations, the COP then functioned solely as a ceremonial and rubber- stamping body. The exception is the development of the Geneva Ministerial Declaration at COP 2, different dimensions of which are taken up in chapters 5, 8 and 9.

161 THE AD HOC GROUP ON THE BERLIN MANDATE AND THE COMMITTEE OF THE WHOLE

The Berlin Mandate determined that the Protocol negotiations would be conducted in an open-ended ad hoc group of parties, which became known as the Ad Hoc Group on the Berlin Mandate. The conduct of negotiations in a specially convened body rather than using the existing subsidiary bodies had several advantages. Firstly, it helped to insulate the Protocol negotiations from controversial debates taking place within the existing subsidiary bodies, such as the protracted debate over the IPCC’s Second Assessment Report, which was contained within the SBSTA (see chapter 7). Secondly, convening a body dedicated to the Protocol negotiations conferred greater status and distinction on the process, providing a clearer focus for public and media attention, and ensuring that more time was dedicated to the negotiations. Moreover, a sense of community and identity built up around participants, strengthened by Estrada’s leadership, which would have been weaker had negotiations been conflated within the other work of the subsidiary bodies. According to an interviewee (Jl), “you need that kind of single Unitarian leadership to push that sort of thing through, where everyone feels a common kind of commitment”. The AGBM met for the last time at its resumed eighth session on the eve of COP 3 and formally concluded its work when Estrada made his report to the COP.

A “sessional Committee of the Whole, open to all delegations” (FCCC/CP, 1997g:14) was convened to finalize the Protocol negotiations at COP 3, chaired by Estrada. In effect, therefore, the CoW took over where the AGBM left off. Such continuity was critical to the smooth running of negotiations at COP 3. Delegates did not need to get used to a new way of working, thus minimizing loss of time in the transition from the AGBM. However, while continuity was helpful from a practical perspective, a break with the AGBM process was important psychologically. Through the formal closure of the AGBM and Estrada’s report to COP 3, followed by the convening of a new negotiating forum, a clear signal was sent that the final negotiations had begun and a change in gear was needed.

We now turn to examine the various negotiating stages that were convened under the AGBM and the CoW.

162 Figure 6.1: The many stages of the Kyoto Protocol negotiations

AGBM CoW

Z a ©02 13 C Formal plenary meetings 3 ê

Informal groups Non-groups (AGBM 6-8) Negotiating groups (COP 3)

QELROs Policies & Institutions & I Article measures Mechanisms 4.1

Informal sub-groups

Unofficial groups and exchanges In the corridors

163 THE CENTRAL STAGE: FORMAL PLENARY MEETINGS

The central stage upon which the Protocol negotiations played out were the plenary meetings of the AGBM and CoW, which were typically attended by all parties present at the session and were open to the non-state audience, including the media. These meetings were required to adhere to all formal procedural rules and established practices, such as interpretation, rules governing the right to speak, and quorum requirements, and therefore typically enjoyed maximum transparency and procedural equity (see chapter 5). The presence of full transparency and procedural equity safeguards meant that plenary meetings were the only arenas where formal decisions could be taken.

Up until AGBM 6, when informal groups were convened, plenary meetings served as ihe sole official negotiating arenas (supplemented by the roundtables described below). Although the regulated nature, inclusive scope and openness to public scrutiny of plenary meetings ensured high legitimacy, these features also tended to confine proceedings topassive exercises in persuasion, often conducted through prepared statements. While the role of plenary meetings in this regard is often viewed in derogatory terms (e.g. Benedick, 1993), it did perform some important functions.

The primacy of plenary meetings during the first 17 months of negotiations, for example, helped to build confidence in the negotiation process, especially among developing countries most in need of transparency and procedural equity safeguards, providing all parties with an equal opportunity to express themselves and hear statements by others, while allowing non-state organizations to observe the full proceedings. The fact that all issues were taken up on the same stage allowed all delegates to gain a basic big picture of the emerging plot of the negotiations, helping to level the playing field of information and ideas before the commencement of bargaining.

Plenary meetings also provided a useful stage, throughout the negotiation process, for the staking out of positions through passive persuasion, whereby Parties could formally place their views on the table and make a bid for their

164 preferences in the negotiations. This was particularly important for developing countries who could feel that they had placed their national positions on record, even if they were then to have little influence in the bargaining process (see the citation from Hyder [1994] in chapter 5). Moreover, the prepared opening statements of key players - notably the EU, G-77 and China and US - were used as a helpful ‘barometer’ by the production team, and no doubt by other parties, to get a feel for the extent of flexibility these players were prepared to show at that session, and therefore how the session was likely to evolve.

In addition, delivering prepared statements in an open plenary could serve as an avenue for letting off steam, whereby parties made strong interventions, but having expressed themselves, then took a more constructive approach in the bargaining process (McConnell, 1996). 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., 1992:33) of non-state audiences. For example, at the closing plenary of AGBM 8, the US made an unexpected statement that the Protocol should not adversely affect its military capability. The US 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 media and observers would be present, to reassure the Pentagon that its concerns had been taken on board (pers. comm., 1997b; US, 1997). Having been seen to convey a strong message in a public arena, the US delegation then engaged in bargaining on the issue in a much more discrete and conciliatory manner.

However, while plenary meetings were necessary for decision-making and useful for passive exercises in persuasion, their ability to provide a conducive setting either for active debate or for bargaining was more limited, given the high transaction costs involved in adhering to formal procedural rules, the large number of parties present, and the admission of the media and non-state organizations (Pruitt, 1981; Fisher et al., 1992; Benedick, 1993; see also box 6.1). This is not to say that there was never any bargaining in plenary. On the contrary, bargaining took place in plenary over the conclusions of the session at most of the early AGBMs. However, as discussed in chapter 9, this could best be characterized as

165 bargaining practice, that is, it took place over text that had no meaningful practical or legal significance.

Box 6.1: Limitations of plenary meetings

“If you ask delegates, they all know, we can’t negotiate in plenary. Everybody will tell you the same. Even small countries will tell you the same” (ASSEC2).

“A lot of plenary wouldn’t have helped much. ..You just state your views and that’s the end. You can’t get a lot of negotiation in plenary” (AFSECl).

Recognizing the limitations of formal plenary meetings, Estrada convened alternative arenas as supplements to them. He organized a series ofinformal roundtables to promote more active debate, especially during the early AGBMs and, from AGBM 6, he gradually shifted the focus of negotiations to informal groups, in order to facilitate, and indeed provoke, bargaining’ll The shift in the spotlight away from plenary meetings, however, did not confine them to redundancy. On the contrary, they retained their role as stages for formal decision-making and the exercise of persuasion, while also taking on new functions as complements to the informal groups, including stock-taking and monitoring, providing a system of checks and balances, and serving as legitimation arenas and bargaining forums of last resort. We will consider these functions as part of our discussion on informal groups; before doing so, however, we will first briefly discuss the above-mentioned informal roundtables.

INFORMAL ROUNDTABLES

The informal workshops (AGBM 3) and roundtables (AGBM 4-7) convened by Estrada (see table 6.1), which, for the sake of simplification, we will generically refer to as ‘roundtables’, were a “procedural innovation” (SECl) without precedent in the climate change regime. The roundtables were explicitly

Almost every complex, multilateral negotiation is structured on the basis of an interplay between formal and informal meetings. See, for example, Sebenius (1984) on the Law of the Sea negotiations. Benedick (1991/98) on the ozone regime, and McConnell (1996) on the CED negotiations.

166 designated as informal forums where no bargaining was to take place, and where delegates would participate in theirpersonal capacity. Interpretation was

provided and the roundtables were open to participation by any party, as well as

observers. They were chaired by delegates appointed by Estrada including, for the

first (and still only) time in the climate change regime, an NGO delegate (from a

research institute), who chaired the roundtable on possible impacts at AGBM 4.

fable 6.1: Roundtables Session Roundtable topic

AGBM 3 Policies and measures QELROs AGBM 4 Policies and measures QELROs Possible impacts on developing countries of new commitments for Annex I parties AGBM 5 New proposals from parties AGBM 6 Differentiation New proposals from parties AGBM 7 New proposals from parties

The AGBM 3 and 4 roundtables benefited from the input of an expert panel, composed mostly of government and intergovernmental (e.g. IPCC) delegates, each of whom made a brief presentation before the presiding officer opened up the lloor for questions and discussion. Seats were provided for parties around an open square (not round!) table, while representatives of non-state organizations were seated around the sides of the room. The smaller meeting rooms ensured a more intimate atmosphere. Each presiding officer later presented an oral report on the roundtable to the AGBM plenary, without mentioning party names, and, for the

AGBM 4 roundtables, the text of this report was annexed to the formal AGBM 4 report (FCCC/AGBM, 1996g).

The format for the roundtable on differentiation was different^*’. Parties supportive of differentiation were invited to outline the merits of their proposals and how they would work, followed by general discussion. The roundtable was

This roundtable was convened following a half-day informal consultation on this issue immediately preceding AGBM 6. Participants at the informal consultation felt that issues relating to differentiation would benefit from a broader airing in the AGBM as a whole.

167 held in a plenary room. A report was prepared by the roundtable Chairman, and also annexed to the formal AGBM 5 report (FCCC/AGBM, 19961). The roundtables on new proposals convened at AGBM 5, 6 and 7 followed a similar format, with each party having made a new proposal invited to present it, and then respond to comments.

The roundtables undoubtedly generated more active and open debate than formal plenary meetings. The roundtable on new proposals at AGBM 6, for example, provoked interventions from parties who did not speak again in the AGBM for the remainder of the session^^ As the informal roundtables were explicitly designated as non-bargaining, debate-only forums, parties were able to broach politically sensitive topics that could not be taken up in plenary, where their mere discussion ‘on the record’ could imply that they were under formal negotiation. By way of illustration, Brazil made the following intervention after the roundtable on new proposals at AGBM 5, emphasizing that, although some topics (in this case, global emission caps) had been discussed openly in the roundtables, they should not even be raised in the formal plenary:

“We all enjoy very much as an intellectual exercise the expression of general opinions ... informal exercises [roundtables]... quite usefully engage in speculations about what we should do in the future and so forth... Having said that, I think it is extremely important that we restrict ourselves within the AGBM to the terms of reference of the mandate that was given to this ... group by the COP” (AGBM 5: 1996c; emphases added).

The roundtables also helped to increase the stock of shared information among parties. The panel presentations at AGBM 3 and 4, for example, provided an overview of the key issues at stake with the chance to ask questions, and in particular facilitated direct interchange between IPCC officers and AGBM delegates (see chapter 7). The roundtable on differentiation sought to improve understanding of that particular concept, while the roundtables on new proposals provided an opportunity to gain more information on the preferences of parties and their rationale. Estrada described their objective as “...to get as well informed

Author’s observation, based on list of speakers held with secretariat.

168 on the material we have in hand to work in the preparation of our draft Protocol...” (AGBM 5, 1996a).

An interesting dimension to the roundtables is that delegates felt able to debate more freely, despite the retention of many of the features of formal plenary meetings (including interpretation, sound recordings and presence of non-state observers). In the case of the AGBM 4 and 6 roundtables, the resulting written reports were ironically much more detailed than the reports on the formal AGBM proceedings. This reveals the important distinction in multilateral negotiations between formal and informal arenas, whereby a statement made in an arena designated as informal does not necessarily imply commitment, whereas a statement made in a formal arena might be interpreted as such, almost irrespective of the procedures in place.

Box 6.2: The usefulness of roundtables

“It was a way outside the negotiating table to talk about the issues. So it is useful for information sharing, to emphasise certain arguments... Maybe go a little bit out of the subject matter” (AS2).

“.. .they were a good innovation ... like the one on impacts on developing countries ... some delegations were able to say in a much more open way what their real feelings were ... occasions like that help grease the negotiating cycle” (AO AC I).

Interviewees generally considered the roundtables to have been useful (see box 6.2), although several (e.g. J3; BINGO I) pointed out that they played only a minor role in the overall negotiation process. Although delegates talked more freely, they rarely strayed far from their official positions, while the intervention from Brazil quoted above confirms that, once delegates returned to the formal plenary, they assumed once again the restrictions of their national positions. As non-bargaining stages, the roundtables could never actually reconcile the preferences of parties; instead, they helped pave the way for that bargaining by facilitating the flow of information and prompting delegates to take a first step beyond the passive exercise of persuasion.

169 The next step away from persuasion and towards bargaining was taken at AGBM 6, with the convening of the first informal groups. It is to this topic that we now turn.

IN THE WINGS: INFORMAL GROUPS

A variety of informal groups were convened during the Protocol negotiations to overcome the constraints of plenary meetings by reducing transaction costs and creating the conditions necessary for parties to engage in bargaining. Informal groups operated ‘in the wings’ of the negotiation theatre, that is, on the margins of the main plenary stage, invisible to the non-state audience (as discussed below) but open to all negotiating parties.

The procedural rules of the climate change regime do not cover informal groups. Indeed, informal groups are defined by negative reference to them, that is, they are informal by virtue of having abandoned some, but not necessarily all, of the formal rules. The absence of set rules for informal groups opens up considerable room for improvisation in their design. In the case of the Protocol negotiations, this potential flexibility was enhanced by the immaturity of the climate change regime, which had not yet developed its own set of practices in this area.

That, by definition, informal groups do not adhere to all formal procedures creates a dilemma between their aim to maximize efficiency on the one hand, and the dangers of forsaking procedural equity and transparency on the other. The key to the acceptability and effectiveness of the informal groups therefore lies in their management. As one interviewee (ASSEC2) commented, “if you manage it [the convening of informal groups] in a very bad way, you get complaints. But if you manage it in a very smooth... or discrete way, you will find that they [delegates] accept this. So... the whole thing is the management”.

The main types of informal groups convened at different stages during the Protocol negotiations are discussed below, followed by a discussion on the dilemmas that they faced, and then on measures taken to resolve those dilemmas.

170 Non-groups and negotiating groups At AGBM 6, Estrada convened the first two informal groups of the Protocol negotiations, which he named non-groups, to address the issues of institutions and mechanisms and continuing to advance the implementation of Article 4.1. He convened two further non-groups, on policies and measures and QELROs, at AGBM 7. These four non-groups (see table 6.2 below) continued to operate throughout AGBM 7 and 8, and this structure was also retained at COP 3, thus ensuring continuity and stability in the negotiations, with positive implications for efficiency. The non-groups built up a sense of identity and community as delegates got used to working together on specific issues and were able to pick up the threads of where they had left off at the start of each session. While maintaining continuity, Estrada sought to make a symbolic break in the negotiation process at COP 3 by renaming the groups ‘negotiating groups’ to signal that the final stages of negotiations must now start (FCCC/TP, 2000a)^^

Estrada convened informal groups with caution, delaying the non-groups until AGBM 6 and thereby providing parties with ample time to express themselves in plenary meetings. He used the term non-groups, unprecedented in the climate change regime, to underscore that the groups had no formal status. Moreover, Estrada tested his intention to convene non-groups at the AGBM bureau meeting immediately prior to AGBM 6, where the lack of comments indicated that this approach should be acceptable. Nevertheless, many queries were raised in plenary over the nature and mandates of the non-groups, reflecting the nervousness of, especially, developing countries, as well as some procedural opportunism on the part of obstructionists (AGBM 6, 1997b). As one interviewee (AS2) recalled:

“People didn’t know what the non-groups were. The difficulty ... is that you don’t know how much you are going to commit. Are you commenting? Are you stating positions? Are you negotiating? There is a difference in the way that you approach the problem”.

This balance between continuity and stability can be compared with a difference experience during the post-Kyoto negotiations, as discussed in Appendix C.

171 Table 6.2: Non-groups and negotiating groups Group (Co)-Chairmen Nationality Session QELROs Meira Filho Brazil AGBM 7 Meira Filho Brazil AGBMS Kjellén Sweden Estrada Argentina CoW Policies & El Ghaouth Mauritania AGBM 7 measures Kanté Senegal AGBMS El Ghaouth Mauritania CoW Institutions & Shibata Japan AGBM 6-CoW mechanisms Advancing Article King Trinidad & Tobago AGBM 6-7 4.1 King, then Trinidad & Tobago AGBMS Ashe Antigua & Barbuda Ashe Antigua & Barbuda CoW Kjellén Sweden

Estrada thus went to considerable lengths in the opening plenary meeting of AGBM 6 to reassure delegates. He emphasized “non-groups have no mandate. I will refer these non-groups to specific chapters of the Framework Compilation, and ask delegates how the document could be simplified... They will not negotiate. They have a non-mandate” (AGBM 6, 1997a). The jocular use of the term ‘non’ became a useful reassurance tool for both Estrada and the other non group Chairmen, with ‘non’ mandate, ‘non’ Chairman and ‘non’ text becoming part of the AGBM’s collective vocabulary for a time.

A key factor in the acceptability of the non-groups was their hybrid nature. while they were clearly designated as informal groups, they retained many formal rules and established practices, although more were discarded in Kyoto. The non groups had interpretation, met in plenary rooms and sound recordings were made of their meetings. No more than two were held at any time, and they also met mostly during standard UN working hours. Meetings were advertised in the daily programme of meetings and on electronic noticeboards so that delegates were appraised of meeting times and venues in the same way as plenary meetings.

An important difference between the non-groups and plenary meetings, however, was the exclusion of observers and the fact that each group was chaired (or co-chaired) by a different individual; the exception was the negotiating group on QELROs at COP 3, which Estrada kept under his own leadership, in view of its

172 central political importance. The negotiating groups remained closed to observers in Kyoto. However, as Estrada chaired both the CoW plenary and the QELROs negotiating group, their meetings soon became almost indistinguishable, and observers were admitted to all meetings chaired by Estrada by the end of week one.

Estrada chose the Chairmen (there were no Chairwomen) of the non-groups carefully, ensuring a spread between Annex I and non-Annex I parties, and also between UN regions (see table 6.2). Mwandosya (2000:28) recalls that Estrada “did indeed go out of his way to ensure balanced representation in his selection of chairmen of non-groups”. In the latter stages of negotiations, Estrada appointed Co-Chairmen, one each from Annex I and non-Annex I parties, to chair the two most sensitive issues under negotiation, QELROs and advancing the implementation of Article 4.1, in order to assuage the concerns of both sets of parties that the negotiations would be chaired fairly and to respond to complaints raised over the performance of individual Chairmen. It was critical to the acceptability of the groups that political sensitivities were fully taken into account in the appointment of the Chairmen.

Estrada convened meetings of the non-group Chairmen at least twice at AGBM 7, with the aim of coordinating their work and to make it clear to the Chairmen that their work was being monitored and that results were required. The meetings proved to be important in addressing problems relating to the coherence and integration of the work of the non-groups. For example, at AGBM 8, confusion arose over which non-group had responsibility for the issue of review of implementation, with the result that both the QELROs and institutions and mechanisms non-groups had started to take up the issue. The coordination meetings were able to clarify which non-group should have responsibility for the issue. At AGBM 8, the coordination meetings were replaced by wider meetings of the Expanded Bureau (see below) where the non-group Chairmen reported on their work.

173 Informal sub-groups From AGBM 7, the non-groups splintered off into smaller sub-groups, with a great increase in their number at COP 3. No official record exists of the many informal sub-groups that were convened during the latter sessions of the AGBM and COP 3. Table 6.3 thus shows only a sample of the main sub-groups that met.

These various informal sub-groups shared some of the characteristics of the non-groups (closed to observers, different Chairmen), but reached much greater levels of informality, especially in Kyoto, by abandoning more of the formal rules and established practices, including interpretation, the no more than two meetings practice and standard UN meeting hours. In all cases, however, the informal groups were, in principle, open-ended, that is, any party interested in attending was entitled to do so. Formal procedural equity, whereby all parties had, at least in principle, an equal opportunity to participate in negotiations, was thus maintained.

As with the non-groups, Estrada selected the Chairmen of the informal sub groups carefully. His choice of Chairmen for the sub-groups on the clean development fund (which became the CDM) and the compensation fund at COP 3 were particularly interesting, as he selected delegates closely associated with these proposals, rather than more detached parties. Brazil was the originator of the clean development fund proposal, and Iran, as a moderate OPEC country, was among the proponents of the compensation fund. Mwandosya (2000:86) explains the thinking behind this choice: “It was a brilliant move indeed ... to have the two working groups chaired by their respective proponents. For ... being at the Chair would necessitate that they remain ‘neutral’ and take on board all views...”. Estrada thus adopted the classic tactic of neutralizing those with strong opinions by placing them in the chair.

174 Table 6.3: Informal sub-groups Sub-group Chairman Type AG BM 7 Emissions trading Meira Filho Contact group (non-group Chairman) Joint implementation Meira Filho Contact group (non-group Chairman) Compensation fund A1 Sabban (Saudi Arabia) Contact group AG BM 8 Voluntary commitments Leiro (Norway) Contact group EITs Kjellén Contact group (non-group Chairman) Joint implementation Kjellén Contact group (non-group Chairman) Emissions trading Kjellén Contact group (non-group Chairman) Global warming potentials Mitra (India) Informal consultation Differentiation Roméro (Switzerland) Informal consultation Sinks La Vina (Philippines) Contact group COP 3 EU ‘bubble’ Dovland (Norway) Contact group Compensation fund Salamaat (Iran) Contact group Sinks (continued) La Vina (Philippines) Contact group Emission budgets Meira Filho (Brazil) Informal consultation Review commitments Farago (Hungary) Informal consultation Clean development fund Meira Filho (Brazil) Contact group Voluntary commitments Mexico Informal consultation Differentiation Roméro (Switzerland) Informal consultation Reporting and review US/EU Informal consultation

Beyond these broad characteristics, however, the nature and structure of the sub-groups varied considerably. In some sub-groups (e.g. on voluntary commitments at AGBM 8 and the EU ‘bubble’ at COP 3 ), which were usually termed ‘contact groups’, negotiations were held at meetings advertised in the daily programme, where any party could attend and the right to speak was granted by a presiding officer. In other cases, often known as ‘informal consultations’, meetings were generally not held. Instead, an appointed delegate was asked to consult informally with representatives from the main negotiating coalitions, usually on a specific text. The delegate talked individually and privately with the representatives outside the main negotiating stages, revising the text in question according to their comments, and then consulting them again, until agreement was

That is, arrangements for the EU to share out its Protocol target among its member states.

175 reached or efforts were abandoned. Such consultations were not advertised, and the no more than two meetings rule did not apply to them.

The particular form that an informal group took depended on several considerations, including the level of interest in the topic (if many parties wanted to be involved, a contact group would likely be necessary) and its political sensitivity. Informal consultations, for example, were sometimes convened on the most sensitive political issues, if it was feared that a more open group negotiation might lead to unproductive confrontation. Examples include consultations at COP 3 on the review of commitments and on voluntary commitments for developing countries. Informal consultations were also sometimes chosen for the opposite reason, that is, on more technical issues where agreement was more a question of finding the right language than substantive bargaining (e.g. emission budgets at COP 3; CoW, 1997b). The form of a particular informal group often shifted as negotiations progressed, with contact groups sometimes breaking off into informal consultations, and informal consultations expanding and formalizing into contact groups. Provisions to address the concerns of OPEC derived from their compensation fund proposal, for example, were agreed through a combination of a contact group and associated informal consultations (FCCC/TP, 2000a).

The dilemmas of informal groups

Benefits: increasing efficiency Time: The convening of informal groups was critical to increasing efficiency by allowing the more intensive use of time. Having two non-groups meeting in parallel (from AGBM 7) in effect doubled the total amount of negotiating time available and enabled negotiations to advance on two fronts simultaneously. The subsequent formation of numerous sub-groups, often meeting in parallel irrespective of UN meeting hours and the no more than two meetings practice, further intensified the use of time. This was crucial to managing the complexity of the negotiations. It would have been logistically impossible to resolve the full spectrum of issues on the agenda with only two parallel groups meeting in the two standard three-hour slots.

176 Broad specialization: The disaggregation of the negotiations also helped to reduce transaction costs by promoting a broad specialization of work, allowing delegates to focus their efforts on a single issue, unencumbered by the complexity of the rest of the negotiations. Participants in the informal groups thus tended to be more knowledgeable and have a greater interest in the issue under negotiation, helping to promote a more informed and focused discussion. A further important positive effect of the convening of informal groups chaired by different delegates was to spread ownership for the negotiations among a wider group of individuals. A greater number of delegates from a variety of countries thus felt a personal and professional responsibility for bringing the negotiations (at least those they were working on) to a successful conclusion. Delegating the chairing work in this way made for a more inclusive process, where Estrada was not the only one arbitrating between the opposing views of parties. It also freed Estrada to conduct his own consultations, and think strategically about the negotiations.

Promoting bargaining: A key contribution of the informal groups was to promote more open and active bargaining among parties that would make it easier to reconcile their preferences. Such bargaining was based on the established practice commonly governing the work of informal groups in multilateral negotiations that delegates can explore options without being bound by them, but that, once agreement is reached, it should not be reneged upon when that agreement goes to the formal plenary (Iklé, 1964; Pruitt, 1981). Parties were thus able to talk more freely, knowing that the risks were lower; as noted above in the case of the roundtables, a proposal would not necessarily be taken as a commitment and no final decisions would be made (Pruitt, 1981). As Benedick (1993:238) puts it, “the aura of informality encourages posing hypothetical questions and advancing unorthodox answers”.

An important element in both promoting a bargaining atmosphere and reducing transaction costs was the smaller number of delegates, arising from the broad specialization of parties and the convening of parallel meetings, combined with the lack of resources of most delegations to cover each informal group (as discussed below). There were simply fewer individuals wanting to speak, thus enabling participants to engage more intensively with each other, while groups

177 could meet in smaller rooms often without the need for microphones, thus generating a more intimate atmosphere and allowing exchanges to unfold more spontaneously. Allowing parties to choose their own seating also encouraged more active bargaining; parties could sit together in their main coalitions and close to allies, thus enabling them to confer and exchange views and thereby speed up the negotiation process.

The absence of scrutiny from non-state observers and the media was also pivotal to encouraging parties to speak more freely. As discussed in chapter 2, the literature suggests that the presence of a non-state audience can discourage parties from showing flexibility or exploring possible trade-offs. Overcoming this obstacle to bargaining was behind Estrada’s decision to close the informal groups to observers. He explained in his interview: “I do think that negotiations have to be private.. .It doesn’t make sense to have people negotiating with NGOs...not because there is something to hide, but it is difficult for people to modify positions when they are being watched”. Estrada’s reasoning was strongly supported by interview responses. As one interviewee (EUSECl) remarked:

“... You cannot have a contact group that is open to discuss sensitive issues ...of course if they do it, they [the negotiators] are going to maintain their position, because they know they [the NGOs] are there... they will not move a centimeter. But if you are in smaller group... talking to people who can understand you, maybe because they are civil servants and have similar problems, they you can open up, and you can say what you couldn’t say...”.

Drawbacks: erosion of procedural equity and transparency The flip side of greater efficiency and more intensive bargaining in the informal groups was the potentialerosion of procedural equity and transparency. This occurred on several fronts.

Closure to observers: The closure of all informal groups to observers was a clear case where a freer exchange among parties came at the expense of transparency in terms of public scrutiny. The participation of non-state organizations in the negotiation process, including the closure of the informal groups, is taken up in more detail in chapter 8.

178 English-only negotiations: The absence of interpretation in the sub-groups meant that English became the de facto single negotiation language in Kyoto, a development that is conunon in global negotiations. Several interviewees pointed to the absence of interpretation as a barrier to the negotiating capacity of themselves or their non-Anglophone colleagues (see box 6.3). The greater spontaneity of informal groups redoubled the disadvantage faced by non- Anglophones. As Kaufmann (1988:175) explains, “while the language advantage or disadvantage is not so serious for statements prepared at leisure ... it can become acute when an impromptu intervention suddenly becomes necessary, and a delegate may be groping for the right words...".

Box 6.3: English-only negotiations

“.. .there’s this ‘linguistic brake’ ... in the negotiations... There are decisions ... taken without broad participation from delegations who don’t have access to the English language. When I joined the negotiations in 1996,1 didn’t have access to the contact groups... in English. It’s only gradually that I started to learn in order to gain access and give my point of view’’ (AFl; francophone).

“I know for certain that Francophone Africans had nightmares due to lack of interpretation for such complex issues and following them in English was out of the question for many (ENG02).

It is difficult, however, to imagine any alternative to a monolingual negotiation. In a context where finding the precise word is paramount, highly technical and novel terms are being discussed, and spontaneous interactions are necessary, negotiation in more than one language would be impractical. The crux of the problem thus lay more in the pervasive global imbalance of wealth and resources than in a fundamental flaw in the organization of the Protocol negotiations. Larger or better resourced non-Anglophone delegations with training in English, more time to devote to the negotiation process and the capacity to translate documents into their own language were not as handicapped as the poorer countries with smaller delegations, such as Francophone Africans. A Chinese interviewee explained: “for a big delegation like China, it [the lack of interpretation] was absolutely no problem... everybody works in English now...

179 those technical terms, they are hard to translate, you can’t use the Chinese version”.

Monolingual negotiations posed problems even for some large delegations, however, including that of the Russian Federation, whose linguistic isolation from the negotiation process stoked the sense of neglect that led to its refusal to take on anything but a very generous emission target in the Protocol (as discussed below). Moreover, for many countries, the provision of interpretation and opposition to monolingual (invariably Anglophone) negotiations was a matter of principle, which in turn raised opportunities for procedural obstruction. Managing such language issues was thus an important task for the production team, despite the implicit acceptance of the inevitability of English monolingualism in the final phases of global negotiations.

Obstacles to the effective participation of small delegations: The convening of multiple parallel informal groups had a detrimental effect on the effective participation of small delegations - mostly from developing countries and EITs (see chapter 8) - who often lacked the resources to send representatives to the groups of greatest interest to them, or to keep track of the many threads of the negotiating plot unraveling on different stages. Moreover, while larger delegations could appoint specialists to different sub-groups, thus taking advantage of the broad specialization noted above, this was usually impossible for small delegations. As Mwandosya (2000:28) notes, “one problem that faced, and will continue to face developing country parties is the small size of their delegations. Many are one-man delegations. As such it is not possible for them to follow the numerous meetings and consultations going on at the same time”.

Smaller delegations sought to ease the problem of multiple informal groups by working through their negotiating coalitions. The G-77, for example, appointed coordinators for most issues, who negotiated on the basis of a mandate from the Group and reported back to it (Mwandosya, 2000; AS2). An African interviewee (AFl) reported that his regional group organized itself in a similar way: “the President of the African Group .. .sometimes called us up at midnight ...to say well, there’s this position, this problem, that problem, what do you think

180 about it.. .it’s a good procedure, because otherwise, no one will know anything!”. Such self-help by parties was critical to enabling a broader, if not deeper, participation on a greater number of issues in the negotiations. However, by ceding negotiating power to a group representative, it was inevitable that, for all but the most powerful states, individual national preferences could not be argued as strongly.

The practical procedural inequity resulting from multiple informal groups had the potential to challenge the legitimacy of the process. One interviewee (ASSECl) recalled, “many delegates were not involved in small groups, they were left out, they were left not knowing what was going on”. This feeling of being ‘left out’ was a powerful one, and sparse participation by developing countries sometimes threatened the acceptability of the output of individual sub groups. As one interviewee (AFSECl) noted, “many smaller delegations could not attend all the parallel informal group meetings... so they say, ‘well, we didn’t participate fully in this group’, so whatever outputs you get from that group is viewed with some suspicion”. For another interviewee (A0SIS2), the convening of smaller groups contributed to the domination of the larger, more powerful delegations over the whole process:

“As the issues developed, there were smaller negotiating groups ...and as the groups got smaller..., then we started to loose out on participation and ... it just made it easier for countries who wanted to minimize the outcomes.. .1 guess the US is the classic example... they were involved right to the end in the smaller and smaller groups ...”.

Loss of coherence: The disaggregation of the negotiations, while helping delegates to manage complexity by focusing on single issues, made it difficult for all but the largest parties, as well as the production team, to keep abreast of developments in the various groups in Kyoto and maintain a big picture view of the evolving Protocol. This situation contributed to some incoherence and inconsistency in the Protocol text, which negotiators have had to contend with in the post-Kyoto negotiations (see also chapter 9). According to Yamin (1998:115- 116):

181 . .many elements ... took shape in the small hours in ‘informal informais’ in many different rooms, often meeting simultaneously, so that few outside the larger delegations could follow the entirety of the negotiations. These factors ... go some way to explaining the ... idiosyncrasies of the text”.

Several interviewees similarly highlighted the lack of coordination of the results of the various informal groups and the problems generated for the post- Kyoto negotiations. As one (ASl) noted:

“A lot of negotiations have been done independently in small groups where macro pictures were not able to be conceived ... today many people come and tell you ‘why should you levy [a share of the proceeds of] the CDM [to help vulnerable developing countries adapt to climate change] and not other mechanisms?’... simply because everyone was in smaller groups”.

Seeking to resolve the dilemma Despite their drawbacks, most interviewees agreed that, given the number of issues under negotiation, there was no alternative to the convening of many parallel informal groups. One interviewee (J3), for example, stated, “there’s always a balance between what small delegations can attend and all of the groups you can have. I think Kyoto may have stretched that limit, but there was no way around them”.

As the need for multiple informal groups, and therefore their inherent drawbacks, could not be eliminated, the production team took steps to minimize these, including through the judicious use of plenary meetings. An important role performed by plenary meetings in this respect, especially in Kyoto, was as stock taking forums. Estrada convened a CoW plenary meeting to “take stock of progress ... and identify outstanding issues” (CoW, 1997g) at least once a day in Kyoto without any other official meeting scheduled in parallel. The Chairmen of the various informal groups were asked to report on their work, and delegates were given the opportunity to comment. These plenary meetings were critical in enhancing transparency relative to the non-state audience and in minimizing the extent to which parties not able to participate effectively in the informal groups, especially non-Anglophones, felt marginalized. At no point during COP 3, even

182 when negotiations were at their most intense, did 24 hours go by without an open plenary meeting. As one interviewee (A0AC2) explained:

“The really well equipped delegations ... were sufficiently aware of what was going on in the various contact groups that plenary sessions were not that big of a deal. But for the smaller groups, it was absolutely essential. It was the only way...they were made aware of what was happening”.

The CoW plenary meetings similarly functioned as a system of checks and balances, allowing parties not involved in the informal groups to raise concerns, if necessary, at the emerging results of the groups. An example of where small, poorly resourced delegations successfully used a CoW plenary in this way was the issue of possible impacts on developing countries of new commitments for Annex I parties (see also Mwandosya, 2000:140-41). Here, the sub-group Chairman reported to a CoW plenary meeting that agreement had almost been reached on a text. However, when that text was circulated in plenary, several LDCs expressed deep concern that it did not make specific mention of their group of countries (FCCC/TP, 2000a). The ensuing heated debate suggested that OPEC countries had enjoyed undue influence over the sub-group, and that LDCs had been unable either to participate in it or to make their views heard. The Mauritanian delegate made use of the plenary setting to explicitly draw public attention to the actions of OPEC countries, which had been hidden in the privacy of the closed sub-group. The delegate stated, “I assume that the OPEC countries oppose inclusion of LDCs? Is this correct? If so ... the international community should know about this” (CoW, 1997J; emphasis added). Estrada requested the sub-group Chairman to consult further and LDCs were eventually referred to in the text. In this case, the monitoring and supervisory role of plenary meetings was crucial to maintaining the legitimacy of the informal groups and ensuring that the views of all were heard.

In addition, plenary meetings served as critical legitimation forums. The convening of informal groups was only acceptable because delegates knew that all results emanating from them would eventually be scrutinized in a formal plenary meeting. Even if parties had not been involved in a particular group, they would

183 still have the chance - at least in principle - to object in a plenary meeting. This point was made by several interviewees (see box 6.4).

Box 6.4: Legitimation forums

“At the end of the day, it was all brought to the floor. So that’s the transparency, you are always going to have little groups to work out different issues, and if you’re not involved... you might feel miffed. But you still get the chance to intervene once it gets to plenary” (EU3).

“At some stage ... you have to get formal. You have to have the legitimacy that the formal process provides and the transparency” (AOACl).

The fact that plenary meetings were the only arenas where decisions could be taken meant that they often served as bargaining forums of last resort, that is, to resolve, in a transparent manner, issues that could not be brought to closure in the informal groups. Chapter 5, for example, considered a controversial plenary exchange that took place at AGBM 8 on an issue that the policies and measures non-group had been unable to resolve. The best example of a plenary meeting used as a bargaining forum of last resort, however, is the final overnight negotiation on the Protocol, which is discussed at the close of this chapter.

The importance of plenary meetings as complements to informal groups reveals the critical interplay between the formal and informal in the organization of the negotiation process. Informal groups were needed to overcome the constraints of formal plenary meetings, yet they were dependent on the continuing use of those plenary meetings to compensate for their own transparency and procedural equity deficits. Estrada’s strong chairing skills ensured that plenary meetings retained a key role in the Protocol negotiations throughout the process.

Other measures to address the shortcomings of multiple informal groups, notably the convening of NOG briefing meetings at AGBM 7 and 8, and the formation of a legal drafting group to review the draft Protocol text at COP 3, are taken up in chapters 8 and 9 respectively, while efforts to combat the broader

184 inequalities in negotiating capacity among parties through financial assistance are discussed in chapter 8.

IN THE BACKROOMS: INFORMAL CONSULTATION GROUPS

In addition to the roundtables and informal groups, Estrada convened a series of informal consultation groups from AGBM 6 onwards that met in the backrooms of, or even entirely outside, the theatre, away from the gaze of either the non-state audience or uninvited parties.

The convening of such small groups by the presiding officer is commonplace in multilateral negotiations^^ Like informal groups, there are no set rules governing their conduct, opening up considerable room for improvisation on the part of the presiding officer as to what kind of group s/he wishes to convene (if at all) and how to use it. The distinguishing characteristic of consultation groups is that they are limited membership bodies’, that is, only delegates invited by the presiding officer are permitted to attend. The use of consultation groups thus raises dilemmas similar to those of the informal groups discussed above (albeit for different reasons) and, as with the informal groups, the key to their success therefore lay in good managements^

This next section examines first the Expanded Bureau convened as part of the AGBM, before turning to consultations held during COP 3 where several groups were convened on a more ad hoc basis. Due to the intensity of the final negotiations, records of what groups were convened when and with what membership are scarce. However, the main groups that are known to have met, the Ministerial Group and the Group of 10*°, are discussed.

s* See Sebenius (1984), Sanders (1989) and Benedick (1991/98) on negotiations on the Law of the Sea, the Third Review Conference of the Non-Proliferation Treaty, and the Montreal Protocol, respectively. There are indeed many cases where informal consultation groups were not managed well, failed to enjoy legitimacy among parties at large, and sometimes had to be abandoned; see McConnell (1996) on negotiations on the CED, ENB (1999) on the Cartagena biosafety negotiations and Appendix C on COP 6 part I. *° This section does not address the COP President’s ministerial consultations, which were briefly taken up in chapter 4.

185 Expanded Bureau (AGBM) At AGBM 6, Estrada first convened what became known as the ‘Expanded Bureau’. This group had its first meeting at a restaurant on the margins of AGBM 6 (and was therefore known, for a time, as the ‘Trattoria Group’), and continued to meet at AGBM 7 (at least twice) and AGBM 8 (almost every evening). In addition, Estrada convened three sets of inter-sessional consultations with the Expanded Bureau. In between AGBM 6 and 7, he called consultations on the general topics of strengthening the commitments in Articles 4.2(a) and (b) and on continuing to advance the implementation of existing commitments in Article 4.1, which were held over two days in Bonn and Geneva, respectively. A third meeting of the Expanded Bureau was held between AGBM 7 and 8 in Bonn, where Estrada consulted informally on a draft of his Chairman’s Text. Estrada convened the final meeting of the Expanded Bureau immediately prior to the resumed session of AGBM 8, in Kyoto.

Membership Unlike the formal AGBM bureau, Estrada was free to choose the participants that he wanted on his Expanded Bureau. In his interview, he commented:

“I expanded the bureau the way I liked... I bring people from all sectors, but [only] if they are willing to cooperate ... the whole scope [of interests] was represented there, but with an agreement for cooperation, to contribute to the work, and that is much easier”.

The Expanded Bureau was never a fixed entity; its membership varied around a core group, depending on the needs identified by Estrada, with around 20-30 participants invited to each meeting. As indicated by its name, the selection of participants for the Expanded Bureau was based on the elected bodies of the AGBM and COP bureaux (see chapter 4). The remaining invitees were representatives of key negotiating coalitions not covered by the bureau structure (e.g. Chairman of the G-77), and key players identified by the production team by virtue of their strong positions and leverage power on the negotiations (e.g. China, India, US), or the personal influence of individual delegates (e.g. Antigua and Barbuda). The intention was that delegates would consult with their constituencies prior to the meeting, and report back on proceedings afterwards.

186 The broader membership of the Expanded Bureau contributed to its greater effectiveness relative to the AGBM bureau. Unlike the AGBM bureau, the Expanded Bureau was structured on the main negotiating coalitions, which reflected the politics of the negotiations. Its expanded membership also neutralized the obstructionist OPEC parties, who had to reconcile their actions with those of the greater number of G-77 delegates present and, in particular, defer to the position articulated by the G-77 Chairman.

Functions The basic underlying function of the Expanded Bureau was to serve as an advisory consultation forum for Estrada, generating information and insights to help him bring the negotiations to a successful conclusion. As Estrada stressed in his interview, it was explicitly not intended to serve as a forum for bargaining. In this sense, the Expanded Bureau shared many of the roles of the formal AGBM bureau, which it eventually superceded in practice, if not formally.

Within this broad consultative function, meetings of the Expanded Bureau were held to fulfill a mix of aims. One of these was to encourage delegates to debate freely in a relaxed atmosphere, in order to generate a better understanding of each other’s preferences and their underlying concerns. Steps were taken by the production team to promote a conducive atmosphere for open debate. Invitations were issued on a personal basis, underlining the intention that delegates should speak outside the confines of their national positions, observers were excluded and meetings were all held around square tables, with no prescribed seating arrangements or country flags.

The Expanded Bureau meetings, especially those held inter-sessionally, did provoke more uninhibited debate, with parties taking advantage of the opportunity to explain their preferences and the rationale behind these more fully, even if they did not move from their positions (Mwandosya, 2000). An example can be found in the consultations on Article 4.2(a) and (b), where the US representative circulated a US newspaper advertisement funded by fossil fuel lobbyists calling for the demise of the Kyoto negotiations because developing countries were not

187 included. In doing so, he sought to illustrate the domestic pressure that his delegation was under to argue for its proposed ‘evolution’ clause, while also implying that he himself did not necessarily agree with this position, although he had to represent it. The secretariat, which supported Estrada in the Expanded Bureau meetings, also found the more open debate useful for its work: “Hearing what people said helped us to find the compromise language to bring parties to agreement. The opportunity to hear delegations in the informais meant that we could do this better. It gave us advice to craft a text. We don’t have such interchange in big meetings” (SECl).

A related goal of the Expanded Bureau meetings was to “address the ‘big’ questions” (Secretariat, 1997a), that is, to provide a private forum to broach the more controversial issues that threatened to provoke damaging confrontation if raised in more open meetings (formal or informal) of the AGBM. ‘Evolution’, for example, was officially raised for the first time at the Article 4.2(a) and (b) consultations, provoking inevitably strong, but neither aggressive nor polemical, reactions (Secretariat, 1997b). As noted in chapter 4, Estrada had deliberately refrained from discussing this issue at AGBM 6 because of its political controversy; the private consultations provided a safer environment in which to approach the issue (Secretariat, 1997b).

In addition, the inter-sessional Expanded Bureau meetings served to prepare for the following session, allowing Estrada to discuss his intended approach, and to start building consensus on this. He floated his intention to seek a mandate to prepare a Chairman’s text, for example, at both sets of inter-sessional consultations prior to AGBM 7. The secretariat (1997a) thus identified one of the aims of the Article 4.2(a) and (b) consultations as follows: “ground work for AGBM 7. Secure a mutual understanding of approach to be taken ...to ensure more productive deliberations at the session. Preempt potential obstacles and begin to address these prior to the session”.

Another indirect impact of the inter-sessional Expanded Bureau meetings was a personal one; they provided an opportunity for delegates to meet outside se ssions of the AGBM and build up constructive personal and professional

188 alliances. In this sense, Expanded Bureau meetings served as team building exercises, helping to improve social relations and generate a sense of shared endeavour among participants. The opportunity to meet between sessions was particularly important for developing countries who have few opportunities to meet as a group outside the climate change regime (see chapter 8). As Mwandosya (2000:107) explains: “on the part of the Group of 77 and China, [the] consultations ... provided the only opportunity for the small number of their delegates present to meet, exchange views on various aspects of the negotiations and to review strategies in advance of subsequent intergovernmental meetings”. The importance of inter-sessional Expanded Bureau meetings in this respect was underscored by an interviewee (ASSEC2) as follows:

“It’s a good thing because you make people meet each other... especially for G-77, they don’t have as good cooperation... they don’t feel that close as Annex I parties...when they are at home, there is not that good communication. Particularly during the AGBM, at that time, I don’t think the ministry of environment used the e-mail at all. So... [the meetings] would provide a chance for developing countries to talk to each other, face by face. They made friends with each other.. .They would go out in the evenings together, to the Chinese restaurant... They really got to know each other. It can be very, very important to get them together to talk... to understand each other. And also to talk to Annex I parties, normally they have lunch together”.

Overall, the modest aims of the Expanded Bureau meetings as advisory rather than bargaining forums meant that they were more important in promoting ‘soft’ results, such as enhanced communication, team building, and providing insights to Estrada, than they were in securing substantive progress and adjustment of preferences. As one interviewee (AOACl) put it, “I don’t think ... there was substantive movement of position, but I think they helped everyone to feel they were on board the ‘Kyoto boat’”.

Ministerial Group (COP 3) In the second week of negotiations at COP 3, Estrada convened a consultation group at ministerial level. The representation at this consultation was similar to that on the former AGBM Expanded Bureau, but also included particularly active ministers from other countries, such as the New Zealand Environment Minister.

189 Although ministers from developing countries were invited, the individuals that attended the consultations were mostly officials, creating a disjuncture between the ministerial representation of Annex I parties and the representation at official level of non-Annex I parties (see chapter 8). This group met at least twice, on 8 and 9 December.

Now that the negotiations had reached their final phase, the intention of the production team had been to use this group as a bargaining forum on key issues to bring together the different pieces of the Protocol package. Steps were taken to instill a sense of occasion, responsibility and urgency among participants, and to convey the impression that this would be the forum where they would finally have to compromise. For example, after the first meeting where debates had been disturbed by delegates moving in and out of the room, Estrada requested the doors to the consultation room to be kept shut with UN security outside. Participants were ‘forbidden’ from leaving the room and no one was allowed in.

This Ministerial Group, however, did not play the central bargaining role that had been envisaged. Its potential for fulfilling such a role was hampered by the fact that bargaining had taken on a life of its own, that is, the EU, Japan and the US were already engaged in unofficial trilateral negotiations outside the formal regime procedures (as discussed below). Estrada’s attempts to impose a top-down structure on bargaining to maintain transparency and inclusivity were therefore seen as more of a hindrance than a help by the key players. The disparity in level of participation between Annex I ministers and non-Annex I officials also proved to be an obstacle to effective bargaining.

Nevertheless, Estrada did use the Ministerial Group to make an important contribution to the negotiation process by forcing issues that were being discussed exclusively among Annex I parties in unofficial negotiations, in particular the emission targets and also emissions trading, into this more inclusive forum. Together with the Group of 10 discussed below, the Ministerial Group was the only official forum where these issues were discussed in any depth at COP 3. It was thus critical to keeping the developing countries, and others, actively engaged in the negotiation process. Moreover, this more inclusive engagement of

190 developing countries did enable some substantive progress. It was at a meeting of the Ministerial Group, for example, along with bilateral consultations held on its margins, that the G-77 and China initially proposed, and Estrada developed, what became the basis for the eventual compromise on emissions trading, that is, a minimalist article, coupled with a COP decision enabling its prompt start (Mwandosya, 2000; FCCC/TP, 2000b).

Group of 10 Also in Kyoto, Estrada assembled a group of approximately 15 delegates representing the main negotiating coalitions, which became known as the ‘Group of 10’. Unlike the consultations mentioned above, participation was at official, not ministerial level. Members included Canada, Germany, Japan, Poland, the Russian Federation, the US, the EU troika (Netherlands, Luxembourg and the UK), and three countries from the G-77 and China (selected at the discretion of the Group’s Chairman) (Estrada; Mwandosya, 2000). This was a highly informal group, convened by word of mouth. It was used by Estrada to obtain ‘intelligence’ on the evolving positions of parties and to ensure that representatives of all groups were - as far as possible - kept up-to-date with the latest developments in the negotiations. As a secretariat interviewee (SECl) recalled, “by hearing the delegates talk we, and they, got a sense of where they were”.

Estrada also used this group, as he did the Ministerial Group discussed above, to force issues under discussion only in unofficial groups into more representative forums. The Group of 10 thus “gave the people who were not involved in the three way negotiations [between the EU, US, Japan] a sense they were involved” (SECl). For example, Estrada chose the Group of 10 as the arena for releasing his first draft of two possible sets of emission targets before the end of the first week, providing an opportunity for delegates present to comment on them (see Mwandosya, 2000). The reactions Estrada received from Annex I parties were helpful in giving him and the secretariat, and indeed other parties present, a clearer picture of what would eventually prove acceptable (Mwandosya, 2000; FCCC/TP, 2000b). Such frank reactions could not have been forthcoming in a more open forum, where parties would simply have insisted on their stated

191 positions. Although Estrada collected the draft back after the meeting, the delegates on the Group of 10 undoubtedly informed their constituencies of the emerging list of targets; as an interviewee (SECl) recalled, “the next day, the numbers were everywhere”. In this way, therefore, the judicious use of the Group of 10 both increased the efficiency and cooperative atmosphere of the negotiations, while also helping to mitigate the loss of transparency in the final phases of negotiations.

IN THE DRESSING ROOMS: UNOFFICIAL STAGES

Unofficial negotiating groups In addition to the groups discussed above, which operated within the ambit of the official negotiation process, COP 3 saw the proliferation of unofficial negotiating groups, spontaneously convened by certain parties to bargain and forge deals on issues of particular importance to them. These unofficial negotiating groups functioned wholly outside the process, in private ‘dressing rooms’ closed to all but the ‘stars’ of the show, except for the important fact that any results emanating from them had to be eventually brought to the main stage of the plenary. While these unofficial negotiations were, by definition, outside the scope of the organization of the negotiation process, it is necessary to take them into consideration in this thesis in order to get a more complete picture of the variety of negotiating arenas at work and the interplay between them.

The main issues dealt with mostly in unofficial negotiations at COP 3 were the emission targets and emissions trading. In the case of the emission targets, bargaining on this issue principally took place between the EU, Japan and the US in closed meeting rooms located on an upper floor of the conference centre. The production team did not even observe these negotiations, which have been described as taking place in a ‘parallel universe’. For example, while a Swiss delegate was busy consulting downstairs on differentiation, the negotiations that would eventually decide this issue were taking place upstairs in the parallel universe.

192 These unofficial groups were undoubtedly the most efficient negotiation arenas. They cut out all but the most critical players, thus minimizing transaction costs. The EU, Japan and the US were thus able to engage in unrestrained bargaining and full exploration of possible trade-offs, linkages and side payments, without any scrutiny from other parties or the non-state audience. It is likely that such completely private bargaining was indispensable for facilitating agreement on the emission targets of the Protocol. However, despite their efficiency, these unofficial negotiating forums made no concessions to transparency or even to formal procedural equity; indeed, they achieved limited participation through explicit exclusion. Unsurprisingly, this generated some resentment. As one interviewee (A0SIS2) recalled:

“There were ... discussions going on, particularly in relation to setting QELROs, that were outside the process in which we had no participation at all. And I think that was a problem... We really didn’t get much of an opportunity to participate ... obviously, for a small island state, we felt duped by that process”.

This exclusive process of negotiation also upset Annex I parties not involved in the trilateral talks, with substantive repercussions. The Russian Federation, for example, only agreed to a 0% target in the Protocol, which many commentators have stated is very generous, bearing in mind that Russian emissions have already fallen by over 20% since 1990 (Grubb et al., 1999). The Ukraine only agreed to the same generous target. However, there is evidence that both parties were prepared to accept a -2% target if they had been engaged in negotiations with other parties and pressure had been placed on them. However, as one interviewee (EUSEC2) put it, “the Russian delegates were pissed off because they were neglected”, and therefore stuck defiantly to 0%. Hungary and Poland then lowered their targets to -6% in protest at the Russian and Ukrainian targets, as well as lack of diplomatic attention from their EU allies (as accession countries, they had been expected to assume the same target as the EU) (OberthUr and Ott, 1999). An untransparent, non-inclusive negotiation thus probably led to an environmentally weaker outcome than would otherwise have been the case, as well as damaged relations among parties that have continued in the post-Kyoto negotiations.

193 The dangers of such explicitly exclusionary negotiations are indeed well- known. According to Fisher et al. (1992:29), “even if the terms of an agreement seem favourable, the other side may reject them simply out of a suspicion bom of their exclusion from the drafting process”. This assertion is borne out by the following recollection from a developing country interviewee (ASSEC2):

“I remember once there was an issue that some Annex I parties they sat together and produced a paper... actually the G-77,1 remember, thought the substance was quite ok, but they say they hate this paper. Why? Because they didn’t like being excluded.. .But nobody actually had any problems with the paper itself! All the substance was ok, they just didn’t like the way”.

The challenge, therefore, as posed by Freymond (1991:131), was “how to accommodate the natural tendencies of the states whose power gives them global responsibilities to settle issues among themselves while also considering the claims of the rest of the international community for participation”. Although nothing could be done to prevent key players from getting together privately to make deals, and indeed such private negotiations were necessary for agreement to be reached, it was possible to mitigate the transparency and procedural equity defects of these unofficial negotiations. Estrada did so by periodically shining the spotlight on these and dragging them into the fold of the official talks, if only for a short time. For example, as discussed above, he sought to bring negotiations on both emission targets and emissions trading into the more representative sphere of the Ministerial Group and the Group of 10, with some success in the case of emissions trading.

In addition, Estrada regularly used CoW plenary meetings to exert public pressure on the Annex I parties to advance in their negotiations and, in doing so, he provided an outlet for developing countries to also express their frustration (see Mwandosya, 2000). Estrada thus conveyed the message that other parties, along with the audience of non-state organizations, were closely monitoring the situation and waiting for results. A particularly significant move was Estrada’s production of a draft list of emission targets in the second of the three iterations of the Protocol negotiating text during Kyoto (FCCC/CP, 1997d), first circulated in the

194 Group of 10. This not only provoked the Annex I parties into accelerating their bargaining and decisions on targets, it also gave other parties and the non-state audience an idea of the range of targets that was under consideration, thus making them feel somewhat more involved in the process. Most importantly, the unofficial negotiations were never allowed to eclipse the ojficial arenas of the formal plenary, informal groups and consultation groups, which remained the main stages throughout Kyoto.

In the corridors Although, once again, they are, by definition, outside the scope of the organization of the negotiation process, no discussion of negotiating arenas would be complete without mention of negotiations ‘in the corridors’, whereby 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 (see Benedick, 1993; McConnell, 1996). In this respect, the negotiating arenas of the AGBM and the CoW extended well beyond the official stages and even the private dressing rooms, through to the corridors, lobbies, cafés, and other spaces, which were outside the sphere of influence of the production team.

Such unofficial exchanges were crucial as lubricants to the official negotiations (BINGO 1). They allowed 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 forum. If necessary, they could later deny that any discussion had taken place. Discussions in the corridors could clarify issues or iron out misunderstandings that had arisen in the official forums, while helping to overcome the (usually negative) stereotypes that delegates held of each other, building up trust and better social relations. It is also through such unofficial conversations that NGO representatives were best able to lobby delegates (see chapter 8). These in the corridors negotiations thus increased the overall efficiency of the negotiation process, promoting greater progress in the official informal groups and formal plenaries. It is important not to indulge in a romantic view of such exchanges, however; while they often did encourage a more cooperative atmosphere, highly competitive bullying also took place in the

195 corridors, with aggressive delegates taking advantage of the absence of the diplomatic safeguards in place in the official negotiations (EUSEC2).

THE NEGOTIATION FINALE: A CoW PLENARY

Having explored the network of negotiating arenas where different scenes of the Protocol negotiations were played out, we can now turn to the choice of stage for the negotiation finale on the last night of COP 3, that is, an open plenary meeting of the CoW. This was an unusual choice. Although all negotiations eventually end in a formal plenary meeting, the task of that meeting is typically to rubber-stamp the results of a deal struck in informal, consultation or even unofficial groups. In the case of the Kyoto Protocol negotiations, however, although most issues had been resolved in other arenas by the time the final CoW plenary was convened, several core questions remained pending, and no deal had yet been struck on how the different elements on the table would be put together (ENB, 1997f; FCCC/TP, 2000a). The finale was therefore not a mere rubber- stamping process, but “one of the most exciting nights of international environmental diplomacy” (Oberthiir and Ott, 1999:88).

The openness of the finale was remarkable; all negotiating parties had the opportunity to play a part in the final performance of approving each of the Protocol’s elements, and putting these together to form an integrated whole, on the basis of full formal procedural equity and transparency. Although Estrada did not entertain attempts at renegotiation on issues already agreed in principle, on more controversial questions, and on the acceptance or rejection of draft articles for the Kyoto Protocol package, he allowed an exhaustive exchange of views. By way of illustration, more interventions were delivered by a greater number of parties on the last night alone than during any full formal AGBM session, while 10 parties made their only formal interventions in the whole negotiation process on the last night*‘. This is the reverse of the typical pattern of difficult, multilateral

Calculation by the author based on list of speakers held with the secretariat.

196 negotiations, whereby, in their final few hours, these usually become restricted to an ever smaller group of parties (SEC2)^^.

The stage for the finale of the Protocol negotiations was fully open not only to all delegates, but also to the non-state audience of observers and the media, including television cameras, becoming “the biggest ever live broadcast on the Internet” (Zammit Cutajar, 1997b). Part of the rationale behind choosing a plenary meeting as the final negotiating arena was precisely its openness to public scrutiny. Estrada wanted to ensure that there would be maximum pressure on negotiators to reach agreement, and that, should any party seek to block consensus, it would be absolutely clear how on whose responsibility the Protocol had fallen.

In order to promote an intimate negotiating atmosphere that is difficult to achieve in a plenary meeting, Estrada convened the CoW in the smaller plenary room of the conference centre; the room was packed full of delegates, with the audience of observers seated in an overhanging balcony, in true theatrical style. Oberthiir and Ott (1999:88) describe the “atmosphere conducive to making a deal” resulting from this combination of openness and logistical intimacy as follows: “negotiations would have been possible without a microphone. The camera crews lined up at the back of the room added a strong element of urgency. As a result, delegates felt almost physically the pressure to arrive at a deal”.

The choice of a plenary meeting as the stage for a negotiation finale was thus “rare, but it worked” (SEC2). An important precondition, however, to the successful use of an open plenary in this way was that almost all issues except for the most controversial ones had already been resolved (see also chapter 8). The final plenary was thus not overburdened and the choices before it were relatively simple, if politically difficult. The smaller room helped and Estrada’s chairing skills were critical; a final negotiation in plenary can only work when the presiding officer is capable of brave and judicious decision-making.

As was the case, for example, at both COP 4 and COP 6 part I; on COP 6 part I, see the account in Appendix C.

197 SUMMARY AND CONCLUDING REMARKS

This chapter has provided an overview of the many different stages with different characteristics upon which the Kyoto Protocol negotiations were performed, from formal plenary meetings to the cafés and corridors. Each stage filled its own niche in the wider negotiation theatre. Formal plenary meetings provided a platform for parties to posture if they needed to, roundtables enabled active debate and information sharing, informal groups facilitated open bargaining, and consultation groups provided advice and insights to Estrada while improving communication and a sense of ownership among parties. At the same time, space was given to key players to forge the deals they had to forge in unofficial, private arenas. Similarly, each arena had its own strengths and weaknesses relative to the effectiveness criteria; transparency and procedural equity tended to increase with the formality of the arena, while efficiency generally rose together with the degree of informality.

The various negotiating arenas were subject to policy manipulation by the production team to exploit their strengths and compensate for their weaknesses. Plenary meetings, for example, were held on a regular basis at COP 3 when negotiations in informal, consultation and unofficial groups were at their most intensive, ensuring that a minimum of transparency and procedural equity was maintained. The key to the effectiveness of this organizational element was to strike a balance between the different forums, that is, essentially to achieve an acceptable trade-off between the efficiency necessary to manage complexity and reach agreement on the one hand; and the procedural equity and transparency necessary to secure the legitimacy of the agreement on the other. The evidence, including the paucity of complaints during the negotiation process itself and interviewee responses, suggests that such a balance was indeed achieved in the Kyoto Protocol negotiations.

198 CHAPTER 7

DEVELOPING THE PLOT: ARRANGEMENTS FOR SCIENTIFIC INPUT

“We will take political decisions based on good scientific grounds” (Netherlands, AGBM 4, 1996c).

“The target will be totally a political one, nothing scientific” (Saudi Arabia, AGBM 4, 1996c).

INTRODUCTION

As discussed in chapter 3, climate change is a uniquely difficult problem, whose malign characteristics set the scene for a highly intricate plot for the Kyoto Protocol negotiations. This plot encompassed both the underlying theme of the reality, causes and consequences of climate change, as well as multiple sub-plots on the various issues under negotiation. The uncertainties and complexities involved in the negotiation plot, as well as the technical and unprecedented nature of many issues, opened up a potentially important role for the input of scientific information - both ‘hard’ science on the phenomenon of climate change and ‘softer’ science on policy responses - into the negotiation process. The role of science was accentuated by the imbalance in knowledge and analytical capacity between parties, especially industrialized and developing countries. This chapter explores the collective process of accumulation, communication and interpretation of scientific information that took place during the Protocol negotiations. It first considers the arrangements within the climate change regime for the processing of scientific information, that is, the science-politics interface. It then explores each of the inputs identified by the AGBM as sources of information, namely, the IPCC; the two subsidiary bodies; the secretariat; the Annex I Experts Group; and other “competent intergovernmental organizations”^^ before also examining a case of ‘missing input’, that is, where scientific information was needed, but not forthcoming.

This chapter does not address the important role of NGOs in supplying scientific and analytical input as NGOs were not formally designated as a source of information by the AGBM. The informational role of NGOs is taken up in chapter 8.

199 THE SCIENCE-POLITICS INTERFACE

The main institutional channel for supplying scientific input to the climate change regime is the Subsidiary Body for Scientific and Technological Advice (SBSTA), whose mandate is to “provide the COP with timely information and advice on scientific and technological matters relating to the Convention” (Article 9.1). The SBSTA is an open-ended body, open to participation by all parties to the Convention and is composed of government representatives “competent in the relevant field of expertise” (Article 9.1). In practice, there is no monitoring of the expertise of delegates, who may, therefore, include individuals without a scientific background. Moreover, as government representatives, delegates to the SBSTA are explicitly engaged in promoting their national positions when formulating “advice” for the COP; the SBSTA, therefore, is an inescapably political body (Werksman, 1996).

The climate change regime therefore differs from several other environmental regimes in not having limited membership bodies of scientific or technical experts within the regime itself\ Instead, the Convention states that the SBSTA should draw on “existing competent international bodies” (Article 9.2) to carry out its functions, thus establishing a structure whereby scientific information is to be provided from outside the regime and processed by the SBSTA. Although the SBSTA was given a mandate by COP 1 to establish intergovernmental technical advisory panels of experts (FCCC/CP, 1995b), disagreement over their membership meant that plans for their establishment were shelved at COP 2 (FCCC/CP, 1996b). Industrialized countries favoured limited membership bodies based on expertise, whereas developing countries, who feared they would be excluded by the concentration of expertise in industrialized countries, preferred membership centered on regional balance (Wettestad, 1999). The inability of the SBSTA to establish such panels illustrates well the sensitivities arising from the imbalance in knowledge between industrialized and developing countries.

The ozone regime, for example, has three Assessment Panels, on Science, Environmental Effects, and Technology and Economics, which bring together experts nominated by governments but acting in their personal capacity (Brack, 1996).

200 The Convention does not name the “competent international bodies” that the SBSTA could draw on, mentioning only briefly the IPCC, the most obvious candidate given its role in triggering the negotiations on the Convention (see chapter 3), in a different article (Article 21). This can be attributed partly to the disquiet of some developing countries who felt excluded from the IPCC and did not want official recognition of it in the treaty (Agrawala, 1998b; Estrada, 1999). At COP 1, parties adopted decisions that elaborated on the role of the SBSTA, and also demonstrated a greater official acceptance of the IPCC as a source of information. Decision 6/CP.l, in particular, clarified that the SBSTA should serve as the “link between... assessments and ... information provided by competent international bodies and the policy-oriented needs of the COP”, that is, as a ‘buffer’ between science from outside the regime, and the policy-making process within it (see FCCC/SBSTA, 1996a). The SBSTA, however, was only formally constituted at COP 1 and only met for the first time simultaneously with the AGBM’s first session. It therefore had no time to build up experience in its buffer role before the Kyoto Protocol negotiations got underway.

We now turn to consider how this fledgling science-politics interface functioned to inform the negotiations.

DEVELOPING THE PLOT

The Berlin Mandate recognized the importance of scientific input for the Protocol negotiation process, borrowing language from the Convention while also identifying the IPCC as a source, although not an exclusive one, of information. It stated that the process should be:

“.. .carried out in the light of the best available scientific information and assessment on climate change and its impacts, as well as relevant technical, social and economic information, including, inter alia, reports of the Intergovernmental Panel on Climate Change. It will also make use of other available expertise” (decision 1/CP.l; FCCC/CP, 1995b).

The question of inputs into the negotiations - which bodies should be invited to provide input, when and on what - dominated the first two sessions of the

201 AGBM. At AGBM 1, parties agreed to a list of possible information sources (FCCC/AGBM, 1995a), in addition to proposals put forward by parties, as follows:

• SBSTA • SBI

• Secretariat • IPCC • Annex I Experts Group (OECD/IEA) • Competent intergovernmental organizations

The unimaginative nature of the list reveals the politics surrounding scientific input. The SBSTA, SBI and secretariat were self-evident sources of information, as was the IPCC. The Annex I Experts Group (AIXG), an OECD/IEA initiative predating the Protocol negotiations, was the only innovation and was included despite hesitation on the part of developing countries at its exclusively industrialized country membership. Competent intergovernmental organizations was added as a catch-all category, due to the inability of the AGBM to choose among the many intergovernmental organizations suggested as sources of inputs by parties. The list drawn up by the AGBM was scarcely more precise than the Convention itself in delimiting its sources of information. Moreover, the AGBM did not define a process through which input would be provided, with the effect that information was sought, and given, in an ad hoc manner. Figure 7.1 provides a summary of information requests made by the AGBM, and input received from the above-mentioned sources, throughout the negotiations.

This chapter will now consider the input provided by each of the sources identified by the AGBM, focusing first on the IPCC which, despite its lack of prominence in the list of sources, emerged as the most important source of scientific information.

202 Figure 7.1: Requests and inputs made during Protocol negotiations

------Request from AGBM

Input to AGBM SBSTA SBI (source list) Secretariat A G B M l IPCC AIXG Competent IGOs

Secretariat SBSTA/SBI Advice on Annex I reports Report on differentiation ^ SBSTA Report on features of AGBM 2 Advice on the SAR legal instrument Advice on technology

IPCC AGBM 3 TP policies & measures IPCC SAR AGBM 4

AIXG Reports AGBM 5

IPCC (via SBSTA) TP stabilization AGBM 6 scenarios

SBSTA AGBM 7

IPCC (via SBSTA) TP implications of AGBM 8 proposals Secretariat

Tech Paper sinks COP 3 Analysis of proposals

203 The Intergovernmental Panel on Climate Change Before exploring the two main inputs made by the IPCC to the Protocol negotiations, namely, its Second Assessment Report and technical papers, it is necessary to first outline the nature, structure and functioning of the IPCC, which provide important insights for understanding the Panel’s contribution to the negotiation process. This chapter does not claim, however, to provide a comprehensive analysis or critique of the IPCC. For such an account, readers are directed to Agrawala (1998a, b); see also Boehmer Christiansen (1994a, b), Shackley (1997) and Skodvin (1999).

As noted in chapter 3, the IPCC was established jointly by UNEP and the World Meteorological Organization in 1988, with a mandate, as defined by the UN General Assembly resolution that endorsed its establishment, to:

“...assess on a comprehensive, objective, open and transparent basis the scientific, technical and socio-economic information relevant to understanding the risk of human-induced climate change, its potential impacts and options for adaptation and mitigation” (UNGA, 1988; IPCC, 1993/5).

The IPCC does not make policy recommendations (IPCC, undated; IPCC, 1993/5). Instead, it seeks to “establish the basis of internationally accepted knowledge upon which other forums can base their negotiations and conclusions” (Brack and Grubb, 1996:1). The IPCC is organized into three Working Groups whose precise mandate has changed over time. Together, they provide for comprehensive coverage of the climate change field, from atmospheric science to potential policy responses. These Working Groups are made up of a network of individual experts, nominated by governments, who act in their personal capacity.

The IPCC is not a research body. Rather, it provides assessments of “the relevant research information on climate change that is available around the world in peer-reviewed literature, journals, books and traditional practices” (IPCC, undated: I). It is therefore best characterized as a synthesizer of information, conducting what amounts to an extended literature review. By the close of the Kyoto Protocol negotiations, the IPCC had produced two full assessments of the

204 State of knowledge on climate change, the first in 1990 and the second in 1995. These Assessment Reports include separate reports and a ‘Summary for Policy Makers’ from each of the three Working Groups.

The preparation of the Assessment Reports involves drafting by small teams of experts, followed by an extensive review of drafts in a two stage process, first by other experts, including from IGOs and NGOs, and then by governments (Agrawala, 1998b). According to the IPCC (1996e:viii), “more than two thousand experts worldwide participate in drafting and reviewing” the reports. As well as reviewing drafts, government representatives must accept/approve the reports in the Working Group and full IPCC plenaries. This extensive participatory process forms the basis of the IPCC’s claim to represent the consensus view on climate change.

Consensus is, of course, a contested term (as we saw in chapter 5 in the context of political decision-making), and both the IPCC’s claim and aim to represent scientific consensus has been criticized (Boehmer Christiansen, 1994a, b). In a reply to such a critic (Maddox, 1996), IPCC Working Group I Co- Chairman Houghton (1996) gave the following explanation of the nature of consensus sought by the IPCC: “[it]...is n o t... agreement about all the science. Rather, it is a limited consensus delineating those parts of the science where scientists are in broad agreement and those parts where there remains a great deal of uncertainty and debate”.

Of particular political significance are the IPCC’s Summaries for Policymakers (SPMs), which typically amount to a 10-20 page summary of a 300- 400 page Working Group report, “written in a manner that is readily comprehensible to the non-specialist” (IPCC, 1996e:vii). In addition to undergoing expert and government review, the SPMs are also subject to line-by- line approval by government delegates in the relevant Working Group plenary, on the basis of consensus decision-making (Skodvin, 1999). The SPMs are thus politically negotiated documents, although their scientific integrity is maintained by requiring the concurrence of the IPCC lead authors on any changes, a practice

205 which many commentators see as crucial to the IPCC’s credibility (e.g. Shackley, 1997).

In 1992, as part of a reorganization to respond to the needs of the new climate change regime, the IPCC launched two new types of shorter reports aimed at providing more timely information on specific topics. Special Reports are prepared over a period of around 18 months, may assess new information and are subject to the same drafting, review and approval procedures as the full Assessment Reports. Technical Papers, in contrast, are usually prepared in under 12 months. They remain the responsibility of the IPCC bureau, are subject to only one combined round of expert and government review and do not require approval by the IPCC plenary. However, they can only draw on information contained in existing IPCC reports (IPCC, undated).

A key dimension to the IPCC’s work has been encouraging the participation of developing countries in scientific assessment on climate change (Shackley, 1997). One of the reasons for the IPCC’s establishment was indeed the mistrust that developing countries felt at climate change science emanating almost exclusively from a handful of industrialized countries (Agrawala, 1998a). Each Working Group, for example, is co-chaired by an industrialized and developing country representative, writing teams must include at least one developing country representative, funding is provided to support developing country attendance at meetings, and regional workshops are held to gather unpublished information from developing country experts (IPCC, I996e). Although scientific research on climate change is still overwhelmingly concentrated in a few industrialized countries and participation by developing countries in the IPCC is still hampered by lack of capacity, the efforts of the IPCC have gone a long way to securing greater developing country involvement in the development of climate change science, and have been critical to securing the IPCC’s legitimacy among developing countries (Agrawala, 1998b). Almost all interviewees, including from developing countries, stated that their governments accepted the IPCC’s findings (see also Barrett and Chambers, 1998).

206 Having explored the main features of the IPCC and its assessment process, we can now consider its inputs into the Protocol negotiations.

The Second Assessment Report The most significant input into the Protocol negotiations was undoubtedly the IPCC’s Second Assessment Report (SAR). The Report, which was finalized by the IPCC Plenary in Rome in December 1995, covered the science of climate change (Working Group I); impacts and response measures (Working Group II); and economic and social dimensions of climate change (Working Group III)^^ It was the results of Working Group I on the science of climate change that had the greatest political impact, and the discussion that follows focuses mainly on this aspect of the SAR®^

While the SAR recorded improved knowledge on many issues, it was the question of ‘attribution’ that attracted the greatest political attention: was it yet possible to attribute observed warming to human activity amid the ‘noise’ of natural variability? The First Assessment Report had not been able to do so but the SAR was more confident. Albeit in convoluted language, the SPM of Working Group I concluded that “... the balance of evidence suggests a discernible human influence on global climate...” (IPCC, 1996e:22). This “headline” conclusion marked “a crucial stage in the progress of global action to combat climate change” (Brack and Grubb, 1996:1). Of particular relevance to this thesis is how the headline conclusion was developed by the IPCC and how the Panel’s findings fed into the Protocol negotiations. The process of consideration of the SAR, from the IPCC to the SBSTA, then the COP and the AGBM, is set out in figure 7.2 below. Each step is explored in the ensuing discussion.

IPCC (1996a, b and c, respectively). Controversial debates also took place in Working Group III, for example, over the valuation of climate change damages, which suggested that a life in a developing country was worth less than one in an industrialized country (see Masood and Ochert, 1995; Brack and Grubb, 1996).

207 Figure 7.2: Process of consideration of the Second Assessment Report

WGII WGIIIWGI

Preparation by authors Government & expert peer review

WGI plenary WGII plenary WGIII plenary

Negotiation of SPM

Presentation by Presentation by IPCC Chairman IPCC Chairman IPCC Plenary

AGBM 3 SBSTA conclusions SBSTA 2

Submissions from parties

Decision COP 2 Draft SBSTA 3AGBM On-going decision negotiations

Ministerial Geneva Roundtable Ministerial Declaration

208 • Step 1; Debates in IPCC Working Group I Given its political import, the headline conclusion that human influence could indeed be discerned on global climate was not agreed without contentious political debate in the Working Group I plenary where the SPM was negotiated line-by-line (Brack and Grubb, 1996). According to Skodvin (1999:21), it was approved “in a highly politicised and polarised environment... exposed to efforts of both strengthening and watering down [the] substantive conclusions”.

However, far from reducing the impact of the SAR, this political debate meant that its conclusions, once accepted, enjoyed greater governmental acceptance (Shackley, 1999). The negotiation process gave government representatives a broad sense of ownership of the text, conferring it with legitimacy. As Skodvin (1999) notes, the actual changes made to the language of the headline conclusion were not extensive compared with the original text presented to the plenary. Of greater importance than the resulting language was the negotiation process. Thanks to political debate in the Working Groups, the SAR could claim scientific and political consensus. IPCC Chairman Bob Watson explained the benefits of such political debate in his interview:

“Some people do criticize the IPCC process... that... there’s too much involvement of the governments. I actually disagree, because what is perceived as... governments having too much say in the final policymakers summary... is all a part of ownership. They’ll never change what are the key conclusions. So I actually think it’s an excellent set up”.

The consensus claimed by the IPCC was not shared by all, with a small but vocal group of scientists criticizing the SAR on substantive grounds, for example, that it did not adequately consider other climate drivers, such as solar radiation and vegetation. At COP 2, a group of “more than 100 European and American scientists”, including several well-known climate sceptics, issued a declaration to coincide with the discussion of the SAR stating that “... there does not exist today a general scientific consensus about the importance of greenhouse warming from rising levels of carbon dioxide” (SEPP, 1996). According to the then-IPCC

209 Chairman Bert Bolin*^, however, while the IPCC had “welcomed critical comments based on careful scientific and technical analyses ... many of the objections raised had already been considered ... and rejected because of inadequate scientific bases” (statement to COP 2; FCCC/CP, 1996b).

Allegations of procedural irregularities were also made by fossil fuel industry lobbyists, supported by sceptic scientists. These claimed that the Working Group I report had been altered in the editing process after its acceptance in plenary in such a way as to upset its balance and alter its meaning (Seitz, 1996; see also Masood, 1996a, b). The IPCC, however, refuted these claims, noting that the plenary had specifically requested the editing process to clarify ambiguities in the text, and the allegations, made chiefly in the media, were never substantiated (see Avery et al., 1996; Bolin et al., 1996; Grubb et al., 1999).

The concerted attempts made by fossil fuel lobbyists to discredit the IPCC’s work illustrate the intense politicization of climate change science, as well as the IPCC’s political significance (Agrawala 1998b). The credibility of the IPCC process was critical here. The procedural allegations against the IPCC were made on the basis of “if you don’t like the message, discredit the messenger” (Agrawala, 1998b:625). The IPCC’s relatively open, inclusive and thorough assessment procedure helped to insulate it against such criticism.

• Step 2: Debates in the SBSTA In line with its functions decided at COP 1, the SBSTA was the first arena for debate on the SAR in the climate change regime. The SAR was duly transmitted to SBSTA 2 (February/March 1996) by IPCC Chairman Bolin. The SBSTA had two main tasks. Firstly, in accordance with its functions, it had to make recommendations on the SAR to the COP. Secondly, it had to develop advice on the SAR relevant to the Protocol negotiations, following a request to do so from the AGBM (FCCC/AGBM, 1995a). The SBSTA sought to fulfill these functions through extensive debate, including the opportunity to ask questions of IPCC Chairman Bolin (see ENB, 1996a) and submit written views (FCCC/MISC,

Professor Bolin was IPCC Chairman before being succeeded by Dr. Watson in mid-1997.

210 1996b), as well as bargaining over the text that should be forwarded to the AGBM and COP.

Debates at SBSTA 2 and 3 revealed a broad two-way split among delegations between what can be termed a ‘strong’ and ‘weak’ interpretation of the SAR. Proponents of the strong interpretation maintained that the SAR should be used as the basis for taking urgent action in the Protocol negotiations. Supporters of the weak interpretation, however, contended that too many uncertainties remained for the SAR to be used as the basis for the negotiations, and it should just be taken into account with other information (see ENB, 1996a, c).

These interpretations, however, did not hold equal weight among parties. Arguments consistent with a strong interpretation were promulgated by the vast majority expressing an opinion, whereas those consistent with the weak interpretation gained support from only a minority, notably from OPEC. An interviewee (EU3) described the debate as follows:

“I chaired a contact group on how we should respond to the IPCC in the SBSTA... And"that was very interesting, because the contact group got stuck because of OPEC... they didn’t like the IPCC having made a big step forward in the report, they were going to try and regain the ground that they lost then... to my mind, the implications of the 1995 report [SAR] were very clear, but we couldn’t spell it out as much as any reasonable human being might”.

In frustration, at SBSTA 3, the SBSTA Chairman called for a show of hands of those who opposed a stronger version of the text put forward as a compromise. The result indicated that 11 countries - all OPEC members plus China - did not agreed with it, and the majority of delegates, at least 100, did (ECO, 1996b). However, the consensus decision-making requirement within the climate change regime (see chapter 5) meant that the SBSTA could not adopt the strong interpretation in the face of objections from even a small minority of parties.

The controversy over the SAR meant that the SBSTA’s conclusions, communicated in an oral report by the SBSTA Chairman to AGBM 3, were minimal in their substantive content, simply “commending the entire Second

211 Assessment Report... to the AGBM” (FCCC/SBSTA, 1996b). In addition, SBSTA 3 eventually forwarded a draft decision to COP 2, with two alternative bracketed paragraphs (indicating disagreement). The first stated that the SAR should be used as the “basis for urgent action”, and the second that it should only be “taken into account... bearing in mind the uncertainties and lack of certain information” (FCCC/SBSTA, 1996c). Both paragraphs were deleted, however, in COP plenary, leaving a skeletal decision whose only substance was to recognize the SAR as “currently the most comprehensive and authoritative assessment now available of the scientific and technical information regarding global climate change” (decision 6/CP.2; FCCC/CP, 1996c).

The manipulation of the SAR throws light on the difficulties faced by the SBSTA in developing political recommendations based on scientific considerations. Aware of the political import of the SBSTA’s consideration of the SAR, obstructionist parties ensured that they sent their best negotiators to that forum, whether or not they had any scientific knowledge. As ENB (1996d) commented, “this issue demonstrates that the boundaries between science and politics are becoming increasingly difficult to maintain”.

This is not to say, however, that the SBSTA’s consideration of the SAR was of no value to the regime. On the contrary, the SBSTA clearly fulfilled its role as institutional buffer, serving as a self-contained crucible for the playing out of political debates over the SAR, preventing them from permeating and delaying the AGBM. In a similar vein, it provided another forum for government delegates to process and digest the SAR. The number of delegates attending the SBSTA, in particular SBSTA 3 which coincided with COP 2, and therefore privy to SBSTA debates, was much larger than at IPCC plenaries, and included representatives from a greater variety of backgrounds. Knowledge, understanding and ownership of the SAR was thus spread wider.

212 • Step 3: Debates in the COP The SAR was also debated at COP 2 during its ministerial segment (see chapter 8), which provided an explicitly political forum, with no pretence of scientific expertise, among delegates of a more senior rank. ENB (1996c) reported that “most” parties endorsed the SAR as the basis for the Protocol negotiations, whereas only “some”, primarily oil producers, raised doubts on both the SAR and the need for urgent action. ECO (1996d) went further, arguing that “almost every speech in the ministerial session showed unequivocal support for the SAR”, including that of the US, which sought to explicitly marginalize the sceptic scientists (Grubb et al., 1999).

It was the ministerial roundtable convened as part of COP 2 that finally broke through the impasse in the SBSTA by preparing the overtly strong Geneva Ministerial Declaration, which endorsed the SAR as the basis for urgent action. As noted in chapter 5, the strength of the Geneva Ministerial Declaration meant that its adoption was opposed by a small number of parties and it was therefore only taken note of. Among the reasons given by OPEC and the Russian Federation for their opposition was “non-objective characterization and selective reference to only some of the information in the IPCC SAR, with the result that [the Declaration] is biased and misleading” (FCCC/CP, 1996b:49). Nevertheless, the formal recognition of the Declaration was critical in underscoring the broad authority of the SAR and the wide acceptance of climate change science. That the Geneva Ministerial Declaration achieved what the SBSTA had failed to do was due primarily to its preparation among a small group of ministers that did not include obstructionist parties (see chapter 8), along with strategic procedural improvisation in the COP (see chapter 5). Once again, the interpretation of science was shown up as an explicitly political endeavour.

• Step 4: Final destination: Negotiations in the AGBM In addition to these debates in the SBSTA and COP, IPCC Chairman Bolin introduced the SAR to AGBM 3, and later addressed both AGBM 5 and 7. On each occasion, he highlighted particular aspects of the SAR’s findings, amounting to a strong interpretation (e.g. see FCCC/AGBM, 1997d). The most direct

213 interchange between the IPCC and the AGBM took place at the AGBM 3 and 4 roundtables on QELROs and policies and measures, where IPCC officers made presentations and responded to questions from parties.

The SAR, however, was never formally discussed in the AGBM, with the exception of a handful of comments on the presentation by IPCC Chairman Bolin at AGBM 3. It was a conscious decision on the part of Estrada not to encourage discussion on the SAR in the AGBM, for fear of simply repeating the unproductive debates in the SBSTA. The institutional separation between science and politics with the SBSTA used as a buffer, together with a Chairman capable of enforcing that separation, worked well in this instance, preventing time wasting and delay tactics in the AGBM. This does not mean that the SAR was not mentioned in the AGBM; many parties referred to the SAR to justify their positions, or as part of their proposals. The point is, that having been considered exhaustively by the IPCC and the SBSTA, and later by COP 2 and its Ministerial Roundtable, the integrity of the SAR and the validity of its findings had been broadly accepted. The SAR could therefore now be woven into the plot of the Protocol negotiations by the AGBM, rather than serving as an object of debate.

• The impact of the SAR The principal substantive contribution of the SAR to the Protocol negotiations was to bring closure to debates over the reality of climate change (see box 7.1). In Skodvin’s (1999:21) words, “having survived this intense scientific and political scrutiny with their scientific credibility and authority intact, the substantive conclusions came out as more robust and ... not easily deconstructed”. By securing a consensus over what was and was not known on climate change, the SAR rendered the inherent uncertainty of the science politically manageable and broadened the base of shared knowledge on which decisions could be taken. This not only gave added momentum to the negotiations, it ensured that their very basis

214 would not be attacked by de-legitimizing the discourse that scientific uncertainty was too great to adopt a protocol with stronger commitments^^

Box 7.1: Closure on the reality of climate change

“The impact was very big. It solidified and closed that set of disagreements, potential disagreements” (AOACl).

“The SAR was essential ... to getting the Kyoto Protocol agreed... If the Report hadn’t concluded that there was some evidence ... that there was anthropogenic climate change going on, then I think the pressure to get something for Kyoto would have been less... it’s probably too much to say that without that conclusion you would never have had a Kyoto, but it would have been a lot harder” (EU3).

In this respect, it is interesting to note a shift in the OPEC position after COP 2 away from trying to block the negotiations to seeking ways to accommodate their concerns within the process (Grubb et al., 1999; Oberthür and Ott, 1999). In a similar vein, several interviewees suggested that the SAR had acted as a useful tool for some parties, notably the US, to confront their obstructionist domestic constituencies and justify a change in position. According to one interviewee (ACNGOl):

“The SAR helped the US ... to change its position .. .without being shown as changing position. They could just say, IPCC said this, and we agree. So the IPCC ... is a nice, external, independent body with a high reputation that can give parties a face-saving potential to do a U turn”.

Many interviewees stressed the particular importance of the conclusion on ‘discernible human influence’, which, while convoluted, provided an accessible message for policy makers and the media to latch onto. As one interviewee (BINGOl) noted, “.. .the digestible science was that one line - discernible human influence - that was the science, and that’s all that was needed”. IPCC Chairman Watson agreed, commenting in his interview that “.. .one sentence was the key to

A comparison can be made here with the CBD, which does not have a scientific assessment process comparable to the IPCC. Negotiations on a biosafety protocol under the CBD suffered from disagreement as to whether the transboundary movement of genetically modified organisms was indeed a problem. This debate was carried out as part of the political negotiation process, contributing to the failure of the first round of negotiations (A. Gupta, 1999; Depledge, 2000).

215 success... Forget the other 20,000 sentences, in 1500 pages. One sentence said you cannot explain the observed changes in climate with natural phenomena...”. The sentence was quoted so often that it entered into the common language not only of negotiators, but of researchers and policy makers working in climate change issues around the world. The shared language of the conclusion reflected, and reinforced, shared knowledge of the attribution of climate change to human activities, with its constant repetition (usually without the accompanying caveats in the full SAR) underscoring the perception of climate change as a reality and threat.

Technical Papers The SAR, which set out the general status of knowledge on climate change science, was part of the IPCC’s own programme of work. In addition, however, the IPCC also had a role in providing specific information to the regime on request in the form of special reports and technical papers “on topics for which an independent, international scientific/technical perspective is deemed essential” (IPCC, 1993/5).

Although, according to decision 6/CP.l, the SBSTA was supposed to serve as a “link” with the IPCC and “formulate requests” for information, exactly how this should be done, especially in relation to the information needs of the AGBM, was not clear. In order to avoid wasting time, therefore, at AGBM 1, Estrada stated that it would not be necessary to go through the SBSTA to ask for specific inputs from the IPCC (AGBM I, 1995c). The resulting process of requesting information was haphazard. The AGBM requested only one technical paper from the IPCC. The SBSTA, however, requested three*^, two of which were of great potential relevance to the Protocol negotiations, but without formally liaising with the AGBM as to how the request to the IPCC should be formulated and what information was needed.

The SBSTA also requested two Special Reports, on technology transfer and regional impacts of climate change, which will not be discussed here.

216 Given the immaturity of the science-politics interface, there was little experience within the regime of requesting information from the IPCC. Early experiences of doing so had not worked well during the negotiations in the INC , leading up to COP 1, to the extent that Estrada, as Chairman of the INC, had publicly accused the IPCC of “suffering from a kind of Doctor Frankenstein syndrome” (Estrada, 1999:5) for pursuing its own work programme without consulting parties to the Convention, which it had helped create, on their own information needs (Agrawala, 1998b; Estrada, 1999). Estrada’s lingering suspicion that the IPCC would not be able to deliver useful and timely inputs for the Kyoto Protocol negotiation process is illustrated by the following remark made at AGBM 1 (1995d): “[the IPCC] have their own work programme.... [they] don’t deliver products on request... we have to be satisfied with that... they don’t produce results on demand”. This may help explain why, as discussed below, more innovative means of liaising with the IPCC were not explored during the Kyoto Protocol negotiations.

Table 7.1 lists the relevant technical papers^” that were requested of the IPCC by the SBSTA and AGBM, together with the dates of their request and presentation.

Table 7.1: Relevant technical papers prepared by the IPCC Body TP Issue Request date Date presented AGBMTPI Policies and measures AGBM 3 AGBM 5 (Mar 1996) (Dec 1996) SBSTA TP3 Modelling stabilization SBSTA 2 SBSTA 5 scenarios towards (Feb/Mar 1996) Feb/Mar 1997 addressing Article 2 SBSTA TP4 Environmental SBSTA 2 SBSTA 7 implications of emission (Feb/Mar 1996) Oct 1997 limitation proposals

Unlike the SAR, the expedited preparation procedure for the technical papers did not include political debate in the IPCC plenary; the first political

A further technical paper, on simple climate models, was also prepared during the negotiation process, but it was of lesser direct relevance to the negotiations.

217 consideration of their contents thus took place in the SBSTA or AGBM, depending on which body had requested the input.

Technical paper 1 (IPCC, 1997a), on policies and measures, was formally introduced to the AGBM by IPCC Chairman Bolin at AGBM 5, and Bob Watson, then Chairman of Working Group II, made a presentation on it at a special event on the margins of the session. No debate took place on the technical paper itself, although it was mentioned by a number of parties in their interventions. The conclusions for AGBM 5 simply note that the paper was presented to the AGBM (FCCC/AGBM, 19961).

Technical paper 3 (IPCC, 1997b), on the modelling of stabilization scenarios towards addressing Article 2 (objective of the Convention), was presented to SBSTA 5 by IPCC Chairman Bolin. No substantive conclusions on it were included in the SBSTA report, except for an expression of appreciation to the IPCC and a decision to draw the paper to the attention of the AGBM (FCCC/SBSTA, 1997a). Estrada noted in his opening statement to AGBM 6 (meeting immediately after SBSTA 5) that the SBSTA had drawn the technical paper to the Group’s attention. However, no further discussion ensued, and the AGBM report makes no mention at all of the paper, not even of its availability.

Technical paper 4 (IPCC, 1997c), on the environmental implications of emission limitation proposals, was potentially of most use to negotiators, as it sought to assess the implications in terms of temperature and sea level rise of the proposed targets put forward by different parties. For reasons discussed below, however, it was also the source of great controversy. When it was presented to SBSTA 7, the adverse reactions it aroused compelled the SBSTA to simply “take note” of the technical paper and “of the differing views and concerns expressed” on it (FCCC/SBSTA, 1997b:7). Although the SBSTA “drew the paper to the attention of the other bodies of the Convention” (op. cit.), technical paper 4 was never formally presented to the AGBM and Estrada neither invited discussion on it, nor made reference to it.

218 The opinions of interviewees on the technical papers varied. For some, the information was useful. One developing country interviewee (AFSECl), for example, ventured that the technical papers had helped to address the imbalance in knowledge between industrialized and developing countries:

“The technical papers ... did help quite a bit, because by reading [them] you would at least understand what the issues are ... [they] also helped provide some scientific and technical backstopping, because people could read [those] report[s] and be able to negotiate from the viewpoint of knowledge”.

Others suggested that technical paper 2 on stabilization scenarios, like the SAR itself, had encouraged parties to take on stronger targets. One interviewee (J2) noted “I think [technical paper 2] coloured the debate on the target.. .it allowed a lot more pressure to be brought to bear on bringing the numbers down”. Another (AOSISl) commented “.. .that was probably a reason for the US reverting from the zero target to its minus target. I think they were shown up that what they were proposing was never going to help the climate system. While they would never admit that, I think having [the technical paper] helped”.

Most interviewees, however, felt that the impact of the technical papers had been disappointing (see box 7.2). This can be attributed to several factors:

Box 7.2: The limited impact of technical papers?

“... [their impact] was disappointing... we put a lot of work into them” (EU3).

“I’m not convinced they had a major impact.... for some of the more high- falluting delegations.. .maybe they adjusted their position a micron... (BINGOl).

“It was not information that would take the process forward. It helped to disseminate the information, but I don’t think it helped that much” (EUSECl).

• Lag time The need to adhere to even expedited IPCC procedures necessarily occasioned a delay between the request for a report and its publication. By the

219 time a report was published, it was often the case that debate had moved on, and the need for the report was no longer so apparent. In the case of technical paper 1 on policies and measures for example, by the time the paper was issued (on time) at AGBM 5, most Annex I parties had already decided their approach to policies and measures and were well on the way to proposing specific text. The potential influence of the technical paper was therefore reduced. In a further example, the time lag involved in the preparation of technical paper 4 meant that, by the time it was released, its findings were of limited relevance, as they examined proposals that had long since been withdrawn and conversely did not focus on the major new submissions. Several interviewees (e.g. AS I) highlighted the problem of time lag.

• Science-politics disjuncture Some of the technical papers fell short in relevance and utility due to a clash between scientific and political cultures, mirrored in the dynamics of the IPCC and the climate change regime^*. Technical paper 4, in particular, on environmental implications of emission limitation proposals, courted controversy by putting forward scenarios involving global emission restraints. While this analysis was useful from a scientific perspective, the fact that the mandate for the Protocol negotiations specifically excluded developing country commitments meant that it was politically unacceptable. Furthermore, the technical paper interpreted all proposals “as applying to fossil fuel CO2 emissions alone” (IPCC, I997c:4). This had serious implications in the context of the negotiations, where the question of which gases to include under the Protocol was a major issue and no proposed targets involved reductions in fossil fuel CO2 emissions only. While reducing all proposals to one option was valid from a scientific point of view, politically, it seriously misrepresented those proposals.

Moreover, the actual analysis requested of the IPCC, while politically desirable, was scientifically very difficult to realize. There was simply not enough

This is a problem often identified in the literature. Wettestad (1999:31), for example, notes how “the clash of values and priorities” (between scientists and policy makers) “can result in scientists producing answers which decision-makers fail to comprehend or have less need for” (see also Barrett and Chambers, 1998; J. Gupta, 1999).

220 difference between the proposals of parties in terms of their impact on temperature and sea level rise to be scientifically meaningful, even though their differences were politically highly significant. As one interviewee (EU3) noted, “[it] never really got anywhere, because actually the difference between [the proposals] was never big enough to show the effects”. Given the controversies with technical paper 4, the production team deliberately downplayed the paper in the AGBM, fearing that it could ignite the politically sensitive issue of developing country commitments, while providing an opportunity for filibustering and obstruction.

• Insufficient mandate and politicization The guidance given by the SBSTA and the AGBM to the IPCC for the preparation of its reports was very limited, and often politicized. This exacerbated the danger that the resulting reports would be irrelevant or insensitive to the political process. Often, this was because parties themselves were not in agreement over what the IPCC should study and how. This problem can again be illustrated by reference to technical paper 4. In this case, the IPCC took a formal decision at its plenary of September 1996 to request more guidance from the SBSTA on how to reconcile the political fact that emission limitation targets had been proposed for the period up to 2010 only, when good science demanded emission scenarios for the period beyond 2010 in order to look at implications for temperature change and sea level rise (IPCC, 1997c). SBSTA 4 discussed this issue but was unable to formulate guidance to the IPCC due to disagreement over assumptions to be made regarding developing country emissions post-2010 (FCCC/SBSTA, 1996c). The SBSTA invited parties to submit written views on the topic and then simply “requested the IPCC to take into account and where appropriate reflect these contributions in the development of Technical Paper 4” (FCCC/SBSTA, 1997a). This guidance was patently inadequate, as the views submitted by parties were contradictory and gave no clear instructions to the IPCC. The result was that the IPCC used global emission scenarios, the most scientifically valid option, but also politically the least legitimate. A key lesson from this example is the difficulty in balancing attempts to keep science and politics apart while at the same time making them useful to each other, especially in the context of such a highly politicized issue as climate change.

221 • Weak communication process A weakness in the science-politics interface lay in the process of communication of the technical papers to the SBSTA and AGBM. Once the technical papers had been formally presented to the regime bodies by the IPCC Chairman, no further steps were taken to promote their in-depth consideration and analysis, in other words, to encourage a collective learning process and the construction of shared knowledge around their contents. The IPCC did organize special events (see chapter 8) on some of its technical papers but, as with all special events, these were held outside formal meeting hours and without interpretation. The weak communication process can be attributed in large part to the lack of experience not only in requesting, but also in receiving IPCC reports. As one interviewee (EU3) remarked, “the Convention process never really grabbed hold of how it might use them.. .We were still learning about how the IPCC plays into the Convention process... people didn’t really know what to do”.

• Only existing information Given that technical papers could only use information contained in existing IPCC reports, the extent to which they could provide innovative input to the negotiations beyond what delegates knew already was limited. As Estrada (1999:6) notes, “they help, but they cannot help beyond what was already in the original reports”. In this respect, the IPCC faced a trade-off between allowing reports to use new information but then having to subject these to the full assessment process in order to guarantee their legitimacy, and relaxing the assessment procedures to reduce the production time, but then only being able to use existing information. One interviewee (EU3) commented:

“The technical papers were an attempt to satisfy the needs of the Convention but not the best way of doing it, because the IPCC just got stuck.. .you wanted something quick, but if you wanted something quick, you couldn’t do a full assessment process, which put a whole load of limitations on it, which made it less useful. ... one of the tests will be how do you provide tactical advice to the Convention quickly.. .that doesn’t require this...long-winded acceptance process”.

222 We now turn to the other sources of input identified by AGBM 1, dealing first with the SBSTA and the SBI, followed by the secretariat, the Annex I Experts Group and finally other “competent intergovernmental organizations”.

The SBSTA and SBI As discussed above, a key role played by the SBSTA in the provision of input to the negotiations was as interface to the IPCC. However, the SBSTA’s functions also included a requirement to provide subsidiary bodies, therefore encompassing the AGBM, with “timely information and advice” and to “respond to questions” from those bodies. The SBI did not have a similar mandate, but there was certainly an expectation that both subsidiary bodies would feed information into the AGBM. It is for this reason that the meetings of the subsidiary bodies preceded those of the AGBM in each sessional period, so that their results could feed into the negotiations (FCCC/AGBM, 1995a; AGBM 1, 1995b).

AGBM 1 duly requested input from the SBSTA and SBI on the specific issues listed below (FCCC/AGBM, 1995a: 12):

• SBSTA: A report on innovative, efficient and state-of-the-art technologies and know-how that could advance the implementation of the Berlin Mandate, by AGBM 3, to be periodically updated;

• SBSTA and SBI: Conclusions or advice on relevant aspects of Annex I party national communications and related in-depth review reports, by AGBM 3; and

• SBSTA and SBI: Advice on the second compilation and synthesis of national communications from Annex I parties, with particular emphasis on policies and measures, by AGBM 5.

The response to these requests, however, was very limited. At AGBM 3, both the SBSTA and SBI Chairmen gave an oral report on the requests made to them.

223 but little substantive information targeted to the needs of the AGBM was provided (see FCCC/AGBM, 1996d). The Chairmen simply reported on the work on-going in their respective bodies, with the only substantive comment being that national communications from Annex I parties suggested that they would have to make additional efforts to return their emissions to 1990 levels by 2000, a finding that was already common knowledge. This was the last time the subsidiary body Chairmen reported to the AGBM.

The ineffectiveness of this response can be attributed partly, in the case of the SBSTA, to lack of agreement over the establishment of intergovernmental technical advisory panels. When AGBM 1 issued its request for a report on technologies, it had assumed that such Panels would be set up. More fundamentally, however, any conclusions coming from the SBSTA or SBI as advice to the AGBM had to be politically negotiated among the same governments, and sometimes the same individuals, as those sitting on the AGBM. To suggest, therefore, that the SBSTA or SBI could formulate advice on politically sensitive issues that was independent to the negotiations in the AGBM was largely a procedural fiction. Moreover, during the Protocol negotiations, the SBSTA and SBI were at the very earliest stages of their development. Their precise tasks and the division of labour between them was still being tested out, and both bodies were still in the process of developing their own independent working practices and cultures.

The inability of the SBSTA to fulfill its mandated role in providing “advice on scientific and technological matters” (Article 9.1) is illustrated in the case of a request from the AGBM for advice on which methodologies and global warming potentials (GWPs)^^ should be used to estimate emissions under the Protocol. An obvious choice in this regard was to apply the methodologies and GWPs developed by the IPCC, which had already been endorsed by the COP for use under the Convention (decision 9/CP.2; FCCC/CP, 1996c). However, an explicit

Global warming potentials provide a common measure of the warming effect of different GHGs, based on that of CO2 .

224 decision would still be needed at COP 3 to confirm their application to the Protocol.

At AGBM 8, mindful of the SBSTA’s mandated role as an advisory body on such technical issues, Estrada sent a letter to the SBSTA Chairman asking for the advice of that subsidiary body, noting that the consideration of this question would “more appropriately be addressed by the SBSTA than by the AGBM” (Estrada, 1997d). However, the SBSTA was unable to give meaningful guidance, with its conclusions simply stating that “several delegations considered it more appropriate to address these issues later” (FCCC/SBSTA, 1997b: 10). This was partly due to the opposition of developing countries to GWPs, as their negotiating position was for gas-by-gas targets for which GWPs would not be necessary, and there were also substantive scientific concerns about both the IPCC methodologies and GWPs. However, the inability of the SBSTA to provide scientific and technical advice of any sort, not even an outline of different options and their advantages and disadvantages, illustrates its politicization and the problems of its mandate, as well as the difficulties in separating out science and politics. The intense politicization of the SBSTA in the first few years of its existence was remarked upon by several interviewees: “If you think back pre-COP 3, all the SBSTA meetings were heavily politicized, you couldn’t do anything with it. The most innocuous things would become political issues” (EU3).

Secretariat The role of the secretariat was discussed in more depth in chapter 4, and is only considered here in specific relation to the provision of information and analysis. The secretariat played a limited role in this regard. In accordance with its nature as an objective body of international civil servants, the scope of the secretariat to make recommendations was narrow and, as a general rule, it could only provide information on specific request of the AGBM. A list of information supplied by the secretariat is given in table 7.2 below.

225 Table 7.2; Input provided by the secretariat Issue Content Requested Presented Synthesized list of Based on national AGBM 1,2 AGBM 2, 3 policies and measures communications & identified by Annex I IPCC reports Parties & follow-up document^^ Possible features of a Analysis of AGBM 2 AGBM 3, 4 protocol or another legal institutional instrument & follow-up arrangements in other document^'^ treaties Review of possible Based on information AGBM 2 AGBM 4 indicators to define in national criteria for differentiation communications among Annex I Parties^^ Compilation of responses Based on submissions Unsolicited AGBM 8, part by Parties on issues by parties II related to sinks^^ Technical paper on land- Based on information Related to COP 3 use change and forestry^’ in national work o f communications SBSTA Informal paper on Using EU and 0-77, Requested 3'“ CoW comparison of different Japan and US by Estrada meeting (2 Dec) proposed QELROs proposals; informal AGBM 8 II paper only with no (30 Nov) official status.

Unlike input from the IPCC, the secretariat papers were prepared in a timely manner (usually by the negotiation session following the request) and targeted to parties’ needs, responding to specific requests from session to session. However, given the required objectivity of the secretariat, and the scrupulous observation of this requirement, the secretariat had very little room for manoeuvre in the analysis that it could present. Only pre-existing, accepted information - typically, national communications - could be used, and any analysis (e.g. on possible differentiation indicators) had to avoid controversial conclusions and defer to differing viewpoints. This necessarily restricted the impact of the input. Moreover, as noted in chapter 4, the AGBM team had few resources available to it to conduct

FCCC/AGBM, 1995c and 1996b. FCCC/AGBM, 1996c and e. FCCC/AGBM, 1996f FCCC/AGBM, 1997h FCCC/TP, 1997

226 analytical work, while its communication with other teams in the secretariat who had more capacity and expertise to do so was limited. The secretariat did not, therefore, seek additional mandates to provide more substantive input. It was only in the final stages of negotiations, when more technical secretariat teams became involved in supporting the negotiations (e.g. on carbon sinks) that a mandate to prepare such analytical work was proactively sought out (e.g. the compilation of proposals and technical paper on land-use change and forestry).

A role that the secretariat did play in the final stages of negotiations was as a ‘backstop’ supplier of information when no other source was available. The two cases in point concern information on sinks (discussed separately below), and on the comparison of different proposed emission targets. In the latter case, following debates between the EU and US over whose was the stronger target, Estrada called on the secretariat to conduct an analysis of how the emission targets proposed by various parties, which covered different GHGs and sinks, compared against each other in terms of their environmental strength. As noted above, IPCC technical paper 4, which was intended to consider the environmental implications of proposed emission targets, had not been able to produce policy relevant information in this respect. The secretariat’s analysis was prepared as a non paper, that is, with no formal status, and presented orally by a senior staff member to the CoW within 72 hours of the request (CoW, 1997c). The potential impact of the paper was limited by its rushed preparation, which affected the quality of the analysis, and by its presentation so late in the negotiation process. Nevertheless, its comparison of the implications of the proposed emission targets did help to increase the transparency of negotiations, especially for those countries without the capacity to conduct such an assessment.

The Annex I Experts Group The Annex I Experts Group of the OECD and IE A (AIXG) is an ad hoc group of government officials from Annex I countries, which meets regularly to discuss and analyze policy issues of particular concern to industrialized countries (Oberthiir and Ott, 1999; AIXG, 2001).

227 During the Kyoto Protocol negotiations, the AIXG produced a series of working papers on “policies and measures for common action” to support Annex I parties in the negotiations (AIXG, 2001). These working papers, on such topics as emissions trading, competitiveness issues related to carbon/energy taxation and transport policy, were also distributed during AGBM sessions. The AIXG Chairman also gave an oral report to the AGBM plenary on the AIXG’s activities at all negotiating sessions up to AGBM 7, and written reports on the work of the AIXG were formally submitted to the AGBM and reproduced in official miscellaneous documents (e.g. FCCC/MISC, 1996a, 1997b). In addition, the AIXG convened special events to explain its working papers further. The AIXG secretariat also engaged in dialogue with the UNFCCC secretariat, seeking comments from the AGBM team on drafts of AIXG working papers, and on how these products could best be communicated to the AGBM. The communication channels between the AGBM and AIXG were thus relatively dense.

The AIXG certainly provided a useful forum for Annex I parties to discuss and exchange ideas outside the negotiation process, enabling them to develop a deeper understanding of the issues at stake. It proved to be particularly important in the case of emissions trading, becoming the main forum for elaborating how an emissions trading system might work (Oberthiir and Ott, 1999), and producing pioneering reports on this issue through its working paper series (e.g. Mullins and Baron, 1997).

However, despite the dense channels of communication between the AGBM and AIXG, and its valiant attempts to disseminate the results of its work, the AIXG was never accepted as a legitimate source of information by non-Annex I parties as it was composed exclusively of industrialized countries. To the contrary, it is arguable that the AIXG served to widen the information gap between industrialized and developing countries, especially on emissions trading. As Annex I parties debated and developed emissions trading within the AIXG, the difference between themselves and the developing countries in the understanding of the concept grew. Although the written studies on emissions trading were distributed widely, this was no substitute for active discussion, and in any case they could not be embraced by developing countries as unbiased sources of

228 information given that they had played no part in their preparation. The AIXG studies, therefore, could not bridge the information gap that the AIXG itself had widened.

Competent intergovernmental organizations We now turn to the final category of input, competent intergovernmental organizations. The AGBM never succeeded in naming these competent IGOs, due largely to politically-motivated struggles over who should provide input, with OPEC states, for example, advocating a central role for OPEC, and the US submitting a long list of organizations (FCCC/MISC, 1995), which “left most delegates befuddled at best, and at worst suspecting the US of deliberate procrastination” (ECO, 1995c).

Formal means through which IGOs could communicate information to the regime were unclear and possibilities remained unexplored. Channels that were used included the annotated compilation of information prepared by the secretariat for AGBM 2 and which referenced a large number of reports from IGOs (e.g. the International Civil Aviation Organization, the World Bank, OPEC, UNCTAD). However, these compilations were discontinued after AGBM 3, as their apparent limited utility to delegates did not warrant the resource intensity of their preparation (FCCC/AGBM, 1996a).

Aside from the IPCC and AIXG, almost no IGOs formally addressed the AGBM, the most direct way of communicating information. The only exception on record is a statement by the South Pacific Regional Environment Programme at AGBM 2 (AGBM 2, 1995c). IGOs, including the World Health Organization and the Technology and Economic Assessment Panel of the Montreal Protocol, delivered statements to the SBSTA, and also to COP 2 and/or COP 3 (FCCC/CP, 1996b, 1997g). No formal linkage, however, was made between them and the work of the AGBM. Where a small number of IGOs did participate more actively was in the roundtables at AGBM 3 and 4, where the lEA, OECD and UNCTAD all appeared as panelists in at least one event.

E.g. see FCCC/AGBM, 1996a.

229 There are a number of reasons why official channels for the input of IGO information and analyses were not opened up or explored. Few IGOs, for example, counted the full number of UNFCCC parties among their members and many took particular viewpoints that were not perceived as objective (e.g. UNCTAD on emissions trading^^), both of which adversely affected the acceptability of their input. Most importantly, however, the production team was aware of the potential for ‘procrastination through information’, and therefore did not encourage the full complement of information sources to formally enter into the negotiating arena. The all-encompassing nature of climate change meant that the amount of information that could potentially be considered was almost infinite; reducing the volume of information formally considered in the AGBM was thus key to managing complexity.

An example of this latter point concerns an explicit decision by the production team not to encourage information exchange with the Montreal Protocol Assessment Panels on the relationship of the future Protocol with the ozone regime, in particular the potential conflict between targets to reduce RFC emissions in the Kyoto Protocol, and the use of HFCs as replacements for CFCs in the ozone regime. The production team feared that it would add complexity to the negotiations and might provide ammunition for those seeking to delay the process (on the grounds of scientific uncertainty or interference of climate change mitigation efforts with the recovery of the ozone layer). The issue was not, therefore, formally raised, despite its potential importance to the coherence of the two regimes (see Oberthiir, 1999b). Almost all parties to the climate change regime, however, are also parties to the Montreal Protocol, and would therefore have been aware of the potential conflict. This suggests that key parties themselves implicitly took the decision to set this issue aside and not deal with it in the negotiations. The actions of the production team therefore simply reinforced this implicit decision.

^ UNCTAD emerged as a strong advocate of emissions trading, including with developing countries. See UNCTAD, 1994 and 1995.

230 Missing input: Carbon sinks Weaknesses of the science-politics interface during the Kyoto Protocol negotiations can be illustrated by a case where technical information on a specific issue was needed but not forthcoming, namely, that of carbon sinks.

How to treat the sequestration of CO 2 from the atmosphere by absorption from vegetation growth and other land-use changes was of fundamental significance for many parties with large expanses of forest cover or land areas with high potential CO2 absorption rates (e.g. New Zealand, Scandinavian countries, US). For these countries, whether and how such carbon sinks were allowed to offset their emissions would significantly affect the strength of the target they could commit to. Taking a decision on this matter, however, required answering technically complex questions: how much carbon do different types of vegetation absorb? Under what conditions, on what time frame and with what degree of permanence? How can carbon sequestration be most accurately measured?

The question of sinks was only given serious consideration late on in the negotiation process (FCCC/TP, 2000a). While some parties had referred to sinks in their proposals, the full complexity of this issue had simply not been recognised by most negotiators or the production team until New Zealand put forward a controversial proposal in this regard at the Expanded Bureau meeting on the Chairman’s Text in October 1997 (FCCC/TP, 2000a)‘°°. It was not until AGBM 8 that focused discussions took place on the issue when, as Oberthiir and Ott (1999:132) put it, “many Parties realized that there was almost no factual basis on which to take a decision”.

That the issue was raised so late in the negotiation process represents a failure of the science-politics interface, which did not function in such a way as to raise potential problems. The IPCC had no mandate to draw issues to the attention of negotiators, only to respond to requests. The SBSTA would have been in a more

New Zealand had not been invited to these consultations, but faxed through a copy of the proposal to the secretariat, with a request that it be circulated at the meeting.

231 legitimate position to flag the issue of sinks to the AGBM, in view of its broad mandate to provide advice. However, it did not do so, partly due to its immaturity and lack of experience, and partly to its politicized nature as an open-ended body composed of government representatives. The lack of technical knowledge in the AGBM team, and poor internal communication with technical secretariat staff, also helps to explain the fact that the secretariat did not raise the issue with Estrada.

A further complication arose because Estrada was under the mistaken impression that technical input on sinks would be forthcoming from the IPCC (Estrada, 1999). This illustrates the dangers of not having clear procedures governing the process of communicating requests for information between the regime and the IPCC. Once the question of sinks had been identified as an issue requiring technical input, it was too late to formally request a technical paper, let alone a special report, from the IPCC, while there was no other more flexible, speedier means of preparing and communicating information.

Once the question of sinks had been raised, the AGBM team sought advice from their technical colleagues and, in the absence of any other source of independent, authoritative and legitimate input, the secretariat prepared a technical paper‘°' on the topic, synthesizing information provided by parties in their national communications on their land-use change and forestry sectors. An accompanying compilation document‘d organized views submitted by parties on the issue of sinks‘d, in response to an invitation issued at AGBM 8 (FCCC/AGBM, 1997g). These documents, while helpful, were not sufficient to meet the information needs of parties. The secretariat, in deference to its mandate, restrained itself to considering only the information provided by parties in their national communications, which was itself incomplete, and presenting only a cautious analysis. Moreover, it did not have the expertise in-house to assess such technical issues in any depth and, in any case, there was no time to do so.

FCCC/TP, 1997. A UNFCCC technical paper should not be confused with an IPCC Technical Paper. ‘d FCCC/AGBM, 1997h. ‘d FCCC/MISC, I997e.

232 Given the lack of official information, negotiators relied more heavily on unofficial channels of technical input, including information from NGOs as well as advice supplied informally through the secretariat and individual IPCC experts present in Kyoto. Yamin (1998:127) recalls “courageous attempts by the outgoing Chairman of the IPCC, Professor Bert Bolin, and the incoming Chairman, Dr. Bob Watson, to provide guidance to parties on agreeing something sensible ...”.

The negotiations on sinks were among the most chaotic and acrimonious of the whole process (Yamin, 1998; Grubb et al., 1999; Oberthiir and Ott, 1999). In the absence of technical input, combined with the very real complexities, few negotiators who were not experts were able to understand the implications of the options discussed. As Estrada said in his interview, “we were working in confusion”. Another interviewee (J3) recalled this confusion as follows:

“The negotiation of sinks... was chaotic.. .there were 4 or 5 proposals on the table, that meant anything from... -10% for [my country], another meant -30%, a third... that was proposed by the secretariat could have implied +50% ... and very few people saw the difference. We had experts who saw the difference. But the secretariat did not necessarily see the difference, and many other countries did not see the difference”.

The question of sinks is admittedly immensely complicated, and much of the information that is now being used in the post-Kyoto negotiations on the issue was simply unavailable during the Protocol negotiations (EU3). The point, however, is that the poor management of the science-politics interface on sinks led to the absence of any shared knowledge on the issue, extending to disagreement over what was known or not known. Delegates had to negotiate without a common language - there was no consensus over the meaning of such basic terms as ‘forest’ - without a basis on which to assess the advantages or disadvantages of various options, or even on which to agree to disagree. The text that emerged, although it was agreed early on in Kyoto (FCCC/TP, 2000a), is widely seen as unclear and ambiguous (Yamin, 1998), and has generated perhaps the most controversy for the post-Kyoto negotiations.

233 SUMMARY AND CONCLUDING REMARKS

This chapter has focused on the provision of scientific input to the Protocol negotiations, and its findings are therefore particularly relevant to the effectiveness criterion of information accessibility. The IPCC was the key player in this regard. The IPCC assessment process, along with the exhaustive consideration of its SAR in the SBSTA and COP, succeeded in generating shared, consensual knowledge over the reality and urgency of climate change, which was critical to advancing the Protocol negotiations. The IPCC was less successful, however, in providing more detailed information on specific issues. As one interviewee (J2) put it, “the IPCC is a pretty central player in the process. But it’s not in the context of answering detailed immediate questions. It’s in the context of setting the background, the backdrop, in which discussions take place”.

In terms of other sources, the chapter pointed to the shortcomings of the SBSTA as the main channel for communicating scientific input to the climate change regime, as well as the very limited use made of either the secretariat or relevant IGOs as suppliers of information. Overall, a key weakness in the provision of scientific information to the Protocol negotiations lay in the absence of a body capable of identifying knowledge gaps and conducting timely scientific or policy assessments on issues under negotiation. Negotiations on sinks suffered from this.

Unlike other elements of the organization of the negotiation process studied so far, the input of scientific information was not an area to which the production team applied much strategic thinking or innovative management. This partly reflects the leaning of the production team towards the political and procedural, rather than the scientific and technical, as well as the fear that more information might lead to even greater, unmanageable complexity.

The structural imbalance of knowledge among parties, especially between industrialized and developing countries, meant that there was also an important procedural equity dimension to the provision of information. For many developing countries, for example, the collective sources of information within the

234 regime - notably the IPCC reports, but also secretariat documents and information from IGOs and NGOs - were the main inputs available to them during the negotiations, in the absence of strong domestic scientific communities (Barrett and Chambers, 1998). As one interviewee (AOACl) noted, the IPCC was “really essential, because for most developing countries, that is the m ost... concrete source of information they have about climate change and all of the other things”.

However, most developing country interviewees still felt they had been handicapped by lack of access to information (see box 7.4), in contrast to industrialized country interviewees, one of whom (J2) even suggested that the sheer amount of information available to his delegation may have been a handicap. Some interviewees also stated that sufficiency of information was secondary to their limited capacity to absorb, analyze and interpret information, with language also playing a part (see Barrett and Chambers, 1998). The issue at stake was thus not necessarily more information, but more digestible information, more imaginative means of communicating the information, and capacity- building.

Box 7.4: Information shortfall and capacity problems

“Not many delegations got [the] needed information... At certain points ... I couldn’t get the G-77 together, because they felt we were moving into new territories ... they didn’t know what to do, what to say. And I believe that the availability of good scientific and technical inputs would have been helpful” (AFSECl).

“Generally, I think there was enough scientific input. The problem ... is we don’t have time to read all that. Especially as I... and I know others, also have other work to do at home. Bigger countries have staff to work on these issues.” (EITl).

“We didn’t have enough scientific information... All the documents that we get sent are in English, and...at home, we can’t get information...” (API; Francophone).

The question then arises as to the extent to which the available scientific information was actually used by parties to devise a more substantively meaningful agreement (see Bolin, 1998). Although the SAR forged consensual knowledge around the reality of climate change, the emission targets that emerged from the Protocol negotiations were far from those implied as necessary either by

235 the SAR or by technical paper 2 on stabilization scenarios (Barrett and Chambers, 1998). However, this does not necessarily indicate a failure of the science-politics interface as such. Once scientific information is released from its source to enter into the political negotiating arena, “scientific discourse necessarily interrelates with other discourses” (Paterson, 1996:156) and it becomes just one of a range of inputs that negotiators must mix together to prepare a policy response (Rowlands, 1995). Several interviewees agreed that, although the fundamental driver to the Protocol negotiations was indeed the science of climate change, beyond that basic piece of consensual knowledge, science was only one of many considerations writing the plot of the negotiations. This, however, had less to do with the functioning of the science-politics interface, than with the issues given priority in national policy-making. As one interviewee (EUSECl) commented, “it’s not the science that drives the process, it’s the politics ... I don’t think you can change that. When it comes to money and who’s going to pay, then it’s politics”.

Overall, a critical question raised by this chapter concerns the difficulties of marrying the differing agendas, work programmes and timing of the scientific and political communities. In some areas, such as scientific evidence of the reality and severity of the climate change problem, the scientific process was clearly ahead of the political negotiations. In other more specific areas, such as carbon sinks, the negotiations sought to take decisions for political reasons without possessing adequate scientific knowledge to do so. Whether and how the climate change regime manages to bring together the scientific and political processes will be a critical determinant of its future effectiveness.

236 CHAPTER 8

THE CAST: PARTIES AND NON-STATE ORGANIZATIONS

INTRODUCTION

This chapter focuses on the cast of the Kyoto Protocol negotiation performance, including both the main actors (the negotiating parties) and the audience (non-state organizations). It explores how the participation of this cast was organized, addressing those aspects most open to collective policy manipulation. The chapter first considers the negotiating parties, taking up two dimensions of their participation directly linked to the organization of the negotiation process, namely, the provision of financial support for developing countries and EITs, and arrangements made for ministerial involvement. The chapter then turns to non-state organizations, with a focus on NGOs, examining the formal procedures, established practices and improvised decisions that governed the participation of this audience in the Kyoto Protocol negotiations.

SUPPORT TO DEVELOPING COUNTRY AND EIT DELEGATIONS

“Our delegation in Kyoto, there were two of us. And the first person... didn’t really know about the negotiations. So I was alone, running backwards and forwards, making contacts... It was a lot of work .. .It’s difficult” (API).

The difficulties of small delegations The main actors in the Kyoto Protocol negotiations, and the only ones endowed with decision-making capability, were the states party to the Convention, numbering 168 at COP 3 (FCCC/CP, 1997g), having risen from 118 at the close of COP 1 (FCCC/CP, 1995a). The delegations representing these parties varied greatly in size‘°\ Unsurprisingly, delegation size was closely correlated with wealth and level of development, with OECD countries typically represented by

The statistics that follow consist of the author’s own calculations, based on lists of participants for the negotiating sessions (FCCC/INF, 1995a, b; FCCC/INF, 1996a, b, c; FCCC/INF, 1997a, b, c, d).

237 large delegations (8 or more) throughout the process, and EITs and developing countries, especially LDCs, with much smaller ones. By way of illustration, at AGBM 6, 7 and 8, over a third of developing country and EIT delegations were composed of only one person, compared with delegations of over 8 individuals for almost all OECD countries'®^ This was not always the case, however; some developing countries who were heavily involved in the negotiations also maintained large delegations, including China, Saudi Arabia and Venezuela.

Small delegation size was usually both a cause and symptom of broader weaknesses in negotiating capacity, including a narrower breadth of expertise and lack of preparation time for negotiating sessions (Benedick, 1993). As one interviewee (AOACl) noted, many small developing country delegations “don’t have time to prepare sufficiently ... before the meetings ... and they have to more or less learn the job as they come in.” As highlighted throughout the thesis, smaller delegations thus faced obstacles in participating effectively in the negotiations, including in ensuring representation at multiple informal groups, keeping up with developments in fast-moving, multi-issue, disaggregated negotiations, analyzing and interpreting scientific input, and maintaining an effective presence at late night, marathon negotiating sessions (see chapters 6, 7, 9; also Gupta, 2000). The cartoon in figure 8.1 below illustrates powerfully the disadvantages faced by smaller delegations, and points to the resulting procedural inequity.

This statistic considers the EU as a whole. Some individual EU member states had small delegations, but as these negotiated as part of the EU, the potential negative effects on practical procedural equity considered in this chapter were reduced (EUSECl).

238 Figure 8.1: Delegation size matters

INTERNATIONAL TREATY-MAKI NO ; A MODEL poR G L O B A L DEMOCRACY

G O IN G S O L O TGAM USA

meetiryas - t o J attend materials - t o rcvie^V

Source: ECO (1997b).

Unequal negotiating capacity is not exclusive to the climate change regime. Djoghlaf (1994), for example, notes how the greater number of multilateral environmental agreements, and the concomitant increase in meetings held in various locations, has posed widespread challenges for developing country governments. In this respect, as the IPCC (1996c: 117) remarks, “it is obviously unrealistic to expect universal participation in everything”. For some parties, a particular environmental issue may genuinely not be a priority and they may prefer to direct their energies elsewhere, ensuring that “their concerns are reflected through delegated or grouped responsibilities” (op.cit.), for example, through the

G-77. However, in the case of the Kyoto Protocol negotiations, and the climate change regime more generally, there was a clear gap between desired and actual participation on the part of many developing countries and EITs. This feeling was reflected in interview responses pointing to problems experienced, for example, in attending multiple informal groups (chapter 6) and accessing and interpreting scientific information (chapter 7) (see also J.Gupta, 1997, 2000; Barrett and

Chambers, 1998).

239 Forms of support

Funding for participation In recognition of the difficulties faced by many developing countries, and also EITs since the collapse of the Soviet Union, in participating effectively in negotiations, many environmental regimes now provide funding to support their participation (Benedick, 1993). At COP 1, parties duly established:

“A special fund ... to support the participation ... of developing country Parties, in particular ... least developed countries or small island developing countries, and of other Parties with economies in transition in the COP and its subsidiary bodies” (decision 15/CP.l, Annex I; FCCC/CP, 1995by*.

The amount identified as necessary for the special fund for 1996/1997 amounted to just over US$2 million a year (decision 18/CP.l; op. cit.), with contributions to be made on a voluntary basis. Countries eligible for funding during 1997 were those with a GDP per capita income of less than US$5,500 in 1994 (UNCTAD figures) (FCCC/SBI, 1997e). These countries received funding for one participant, including an economy flight ticket booked by the secretariat, along with a daily subsistence allowance at the standard UN rate. For sessions of the COP, LDCs and small island developing states received funding sufficient for the participation of two delegates.

The voluntary nature of contributions to the special fund introduced an element of uncertainty as to the funding that would be available to cover participation^"^ At AGBM 1, for example, insufficient funds were available to finance widespread participation by developing countries, leading to strong expressions of concern by these parties (FNB, 1995a; FCCC/AGBM, 1995a). Similarly, in his closing statement to AGBM 8, the Executive Secretary warned “we are still short in the participation fund, and if the Kyoto conference is to be attended by those who need to be there... a further effort is needed” (AGBM 8, 19971). Nevertheless, with the exception of AGBM 1, funding proved sufficient

Financing was similarly made available to assist participation during negotiations on the Convention (Mintzer and Leonard, 1994b). Although, as noted in chapter 4, assessed contributions could also suffer from late or non payment.

240 to finance the participation of all eligible parties at all sessions of the AGBM and COP, as well as representatives of eligible parties attending inter-sessional Expanded Bureau meetings. Not all funding offers, however, were taken up. At AGBM 7, for example, only 93 out of 124 eligible parties attended the session (FCCC/SBI, 1997e). This suggests that low levels of participation were due not only to lack of funding but also to other reasons, notably lack of priority afforded to climate change.

Assistance for coordination within the G-77 Some limited support was also provided to facilitate coordination within the G-77 and China. The combination of large size and lack of resources means that the G-77 and China rarely has the opportunity to meet to discuss climate change outside sessions of the regime bodies (Mwandosya, 2000; see also chapter 6). This raises an important barrier to effective negotiation by developing countries, as it means they have less time, and are therefore under more pressure, to develop a Group position, with repercussions on the overall efficiency of the negotiation process. Negotiations within the AGBM not infrequently had to await the formation of a common G-77 and China position before proceeding*®^ A telling example is given in the citation below from the G-77 Chairman at AGBM 7, in which he sought to explain why the Group could not move ahead on the issue of policies and measures:

“Perhaps it’s very difficult... to appreciate the enormous problems that we have in terms of communication... of logistics ... of capacity ... of manpower, to be able to be here in Bonn and simultaneously assist you [the presiding officer] to come to conclusions... whereas groups of nations well endowed in means and ability have been meeting as frequently as fortnightly or monthly ... our only opportunity to meet and evolve a position ... is when we meet in Bonn. The first time we met was on Monday. It’s just the way things work. ... I seek the indulgence of all delegations” (Tanzania; AGBM 7, 1997d).

In order to assist the G-77 and China, facilities were provided for the Group to meet immediately prior to most negotiating sessions, usually the weekend

The EU, a much smaller coalition with dense and well-resourced intra-member coordination, faced similar problems (see Gupta and Grubb, 2000).

241 before. The funding available to developing country delegates was extended to cover these extra days. Such support was also granted for other meetings, on an ad hoc basis. For example, G-77 and China members were given facilities to meet in Geneva prior to the Expanded Bureau meeting on Article 4.1, while the secretariat agreed to cover the incremental costs of diverting several Francophone developing country delegates to Paris on their way to AGBM 8 to attend a capacity-building meeting organized by an intergovernmental Francophone organization.

In addition, the secretariat provided the G-77 and China with a large, dedicated meeting room and office space at each session of the regime bodies, including a computer, printer and telephone, as well as a secretary. This support was provided in recognition of the fact that many OECD parties hired space to set up their own temporary offices during the negotiations. Moreover, the secretariat would often accede to developing country requests to photocopy a document or position paper, even though delegates were expected to carry out, and pay for, these tasks by themselves.

The insufficiency of financial support Providing financial support for the participation of developing countries and EITs is a widely accepted part of the organization of the negotiation process, with its practical benefits appearing straightforward and indisputable. Moreover, statements by developing countries made at AGBM 1 suggest that funding for participation also has a symbolic dimension that is important to enhancing the legitimacy of negotiations, in addition to its practical benefits (e.g. Philippines; AGBM 1, 1995b; SEC2). Most interviewees approved of the provision of such support, although, unsurprisingly, criticisms were leveled at its paucity by developing country interviewees. One respondent (LAI) suggested that, given the multi-issue nature of climate change, “support for non-Annex I parties should enable participation by at least three participants from different disciplines, such as economics, science and law”. Overall, as one interviewee (A0SIS2) put it, “there’s still a huge inequity in the participation of developing countries ... because developed countries can just have resources to bring in as many people as

242 they can”. The climate change regime can clearly only go so far to redressing the broader inequities of the international system.

Some interviewees (e.g. EUSEC2; J2), however, mostly from Annex I parties, expressed doubts at the value of funding participation, suggesting that it was of limited benefit if the countries in question had little interest in the topic and did not then participate actively in the negotiations. Another interviewee (SEC2) commented that providing developing countries with funding conveyed the impression that the negotiations were not of their concern and they had to be paid to attend. Several interviewees also noted that funding for participation was sometimes associated with rent-seeking activity, whereby “access to a ticket to Bonn becomes a prize, a source of power” (SEC2) (see also J. Gupta, 1997). One interviewee (EUSEC2) commented “the amount of DSA [the daily subsistence allowance] can amount to 6 months salary. There is fierce competition to get to meetings”. No one, however, suggested withdrawing funding for participation; according to the same interviewee cited above, “we have to play the game”.

The issue underlying the above comments is that funding for greater participation in terms of numbers of delegates did not necessarily equate with more effective participation. Increasing the number of individuals on a delegation, or enabling a country to be represented that would not otherwise be, was a first step. However, it did not guarantee that those delegations would then have adequate knowledge of the issues, or the right skills, to participate effectively in the negotiations. As the Executive Secretary argued in a communication to the COP bureau, “while ... financial support facilitates attendance, it does not guarantee actual participation in the deliberations. Many funded participants seem to be reticent about taking the floor” (Zammit Cutajar, 1995b). An indicator of the disparity in participation in the negotiations, despite financial support, is demonstrated by the fact that over 90% of all interventions during the Kyoto Protocol negotiations were made by just 16 states^^. Moreover, no more than half

Australia, Canada, China, Hungary, India, Iran, Japan, New Zealand, Norway, Russian Federation, Samoa, Saudi Arabia, Switzerland, US; plus spokesperson for the EU and the G-77 and China.

243 of states present intervened in a formal (or non-group) meeting at any session of the AGBM"°.

In some cases, passive participation was due to lack of a clear mandate for delegates derived from the low priority given to climate change by their governments (J. Gupta, 2000). However, while the priorities of individual national governments are not open to collective policy manipulation, the aim should be to support the participation of those parties that do seek more active involvement. Moreover, there is also an important feedback dimension. Supporting the participation of even those delegates with only a hollow mandate to enable them to increase their knowledge of the negotiations and the opportunities and threats presented might then help trigger more interest in the issue in their home countries.

This suggests the need for more active and targeted capacity-building initiatives, which assist developing country and EIT delegates to develop the skills and expertise necessary to participate more meaningfully in the negotiations. The fact that several very small delegations (e.g. Antigua and Barbuda, Marshall Islands, Mauritania) whose negotiators were highly skilled in multilateral diplomacy were very active and effective in the negotiations suggests that capacity-building may indeed be more consequential than financing participation.

MINISTERIAL PARTICIPATION

“The start of the ministerial segment... the moment at which the Great and the Jet-lagged join the Wise and the Weary” (GLOBE, 1997).

We now turn to a second dimension of the cast of negotiating actors, namely, arrangements for the participation of ministers, the ‘stars’ of the performance. A distinction is typically made in the literature between administrative-level civil servants termed officials or, more colloquially, “sherpas” (Brown, 1996;

Both statistics based on author’s calculation, from list of speakers held with secretariat.

244 McConnell, 1996), and higher-level political participants, known as ministers'" in most countries (Wettestad, 1999). These different actors are viewed as having contrasting strengths; while “bureaucrats often master the complex technological and political details... ministers are ...freer to cut bargains, and they usually draw much more media and public attention to the issues” (Wettestad, 1999:23). A particularly important contribution that ministers can potentially make is one of providing political leadership or skill and energy; that is, being able to articulate and implement a broader vision than officials, and thus help to forge an agreement based on the work of those officials. An effectively organized negotiation process should thus seek to draw out a synergistic, productive interplay between ministers and officials and their differing strengths.

In the case of the Kyoto Protocol negotiations, formal arrangements were made for ministerial participation at COP 2 and 3, resulting in a high ministerial presence (Taalab, 1998), especially at COP 3, where almost all Annex I parties were represented by ministers and most non-Annex I parties by ministers or deputy-ministers (see FCCC/CP, 1997g). Arrangements consisted of a ‘ministerial segment’ at COP 2 and a ‘high level segment’ at COP 3 on the last three days of the session. The change in name underscores an important point. At COP 2, developing countries were unhappy that delegations not represented by ministers (mostly those from non-Annex I parties) had been excluded from the ministerial roundtable organized at the session (see below). They therefore insisted on a “high level segment of ministers and other heads of delegation” at COP 3, thus also encompassing non-ministerial heads of delegation (ENB, 1997d).

Ministers participated in the negotiations at COP 2 and 3 through three main vehicles: the traditional ‘formal debate’; the ministerial roundtable that took place at COP 2; and direct intervention in the negotiating arenas. Each of these vehicles is discussed below.

' ' ' 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. UK) or may not (e.g. US) be directly elected, depending on the political system.

245 Traditional formal debate The traditional formal debate is part of established practice for ministerial participation in UN forums. As part of this debate, ministers and other heads of delegation deliver speeches outlining their national positions, usually from the podium in the main plenary room. The speeches are almost all pre-prepared statements of a “highly predictable and rhetorical nature” (Werksman, 1999:13), with the order and timing of delivery tightly choreographed by the secretariat. Participants thus very rarely respond to each other and the debate typically consists of highly passive exercises in persuasion. Despite the potential for ministers to use the formal debate as a platform for exerting inspirational leadership, in practice, this rarely takes place in any meaningful way. Except for ministerial statements from the most influential countries, there is no expectation that the formal debate will feed into the negotiations. With over 120 speeches of up to 5 minutes, the formal debate has dragged into the night at both COP 2 and 3, with ministers addressing an almost empty room.

In view of the limited relevance of the formal debate, the secretariat put forward proposals for alternative means of involving ministers at COP 3 (FCCC/SBI, 1997b). However, the secretariat’s suggestion to do away with the formal debate was resisted by many parties, especially developing countries, but also the US (ENB, 1997b), which was likely anticipating a visit to COP 3 by its Vice-President. The unwillingness to abolish the formal debate suggests that it does fulfill some significant functions. One such function is inclusivity, ensuring that all ministers from all countries have the opportunity to participate and be seen to participate, albeit passively, in the negotiation process. In doing so, the formal debate can help raise the political, public and media profile of the negotiations and of the climate change issue. The high ministerial presence at COP 3 and, in particular, the presence of the US Vice-President and the heads of state of Costa Rica, Japan and Nauru, helped to direct the media spotlight onto Kyoto. Raising the profile of climate change can be similarly important at the national level, especially for developing countries, where the issue tends not to be high on the political agenda. The attendance of a minister at a COP, and the delivery of a

246 speech to the plenary, can become a news item in that country and thereby increase public awareness of climate change (Kaufmann, 1988; AOACl).

More substantively, at COP 2 and 3 the formal debate was used as a vehicle for key players to announce major changes in positions, which then impacted considerably on the negotiations. At COP 2, the US Under Secretary of State for Global Affairs made a dramatic statement to the effect that the US would support legally-binding targets, within the context of an emissions trading system, while attacking climate sceptics (ENB, 1996d). This marked an important turning point in the negotiations (Grubb et al., 1999). Even more dramatically, at COP 3, the US Vice-President A1 Gore, departing from the printed text of his speech, announced that he was instructing his negotiators to “show increased negotiating flexibility” (cited in Oberthiir and Ott, 1999:86). Again, the repercussions on the negotiations were significant (Grubb et al., 1999). Although the substance of these changes in position cannot be attributed to the formal debate as such, the convening of a suitable forum attracted high-level participation and provided a high profile backdrop that added dramatic effect to the statements made, ensuring that they were well-publicized.

Most interviewees, however, were highly dismissive of the traditional formal debate. Although some recognized its contributions, they doubted whether the costs in terms of negotiation, interpretation and secretariat time were worth it. According to the Executive Secretary speaking in his interview, “it is a heavy price to pay”. The disjuncture between the widely acknowledged limited relevance of the formal debate and the resistance to making changes to it illustrates well the broad conservativeness of UN forums, even those dealing with unprecedented issues such as climate change, where mistrust and fear of exclusion raise barriers to challenging the inefficiencies of the status quo.

Ministerial roundtable (COP 2) An alternative forum for ministerial participation was the half-day “informal ministerial roundtable” convened at COP 2 on the topic of “Climate change: new scientific findings and opportunities for action” (see FCCC/CP, 1996a). Arrangements for this roundtable were made by the secretariat, in consultation

247 with the COP bureau. Importantly, access was limited to “heads of delegation of ministerial rank, each accompanied by one or two members of their delegation” (op.cit.:2, emphasis in original), along with executive heads of UN bodies, who were permitted to observe or intervene on the invitation of the Chairwoman, a Swiss minister. The rationale behind exclusive ministerial participation was that ministers would be more likely to engage in substantive discussion among peers of their own rank than if officials were also present. This approach, however, while justified in terms of efficiency, caused widespread discontent on the grounds of procedural equity and transparency among delegations not represented at ministerial level (ENB, 1996a; Newell and Paterson, 1996). One interviewee (AOSISl) recalled:

“AOSIS was only given limited access ... because we hadn’t brought any ministers, we had considered it to be a non-ministerial meeting... [my country] was only represented by myself and the Assistant Attorney General, so we weren’t even allowed in”.

Whether the roundtable succeeded in provoking open, substantive debate among ministers is doubtful. At a secretariat staff meeting, the Executive Secretary reported that prepared statements were still being delivered, despite attempts by the Chairwoman to engineer more improvised and active debate. Similarly, ENB (1996b) quoted an observer as saying that “the roundtable discussions ... heard many interventions but had limited substantive debate”. Reactions were not all negative, however. One interviewee (AFSECl), who attended the roundtable, underscored the usefulness of the exercise from his perspective:

“I think that it gave the political push, because there were times when even the negotiators were asked to leave, and the ministers to talk. And it helps. Because sticking to our technical viewpoint sometimes was blocking the agreement... It helped to create the political atmosphere and framework for ... decisions to be taken at a later date. I think it was extremely useful”.

Although the secretariat document introducing the roundtable stated that it would not adopt formal conclusions (FCCC/CP, 1996a), the possibility that it could result in a political statement to advance the Protocol negotiations was part

248 of the unwritten script of COP 2 (Werksman, 1999). At a secretariat staff meeting immediately before the COP, the Executive Secretary referred to supporting negotiations on such a political statement as “an assignment written in invisible ink”.

The ministerial roundtable indeed resulted not only in a Chairwoman’s summary, which was simply appended to the COP 2 report (FCCC/CP, 1996b), but also the Geneva Ministerial Declaration, which aroused considerable controversy before it was taken note of by the COP (see chapters 5, 7). This controversy can be attributed, at least partly, to the restricted representation at the roundtable and associated consultations that drafted the declaration (Werksman, 1999). The Declaration was, however, important in giving political impetus to the Kyoto Protocol negotiations in several ways (see chapters 5, 7), and the ministerial nature of the process that led to its development was crucial in this respect. It is almost certain that the Declaration could not have been prepared without the presence of ministers, who were able to rise above the protracted politicking that had been taking place, especially in the SBSTA, and assume a position of leadership to send a clear political message that officials had been unable to formulate. One interviewee (A0AC2) explained (emphasis added):

“...the fact that you could have a parallel thing that had its own authority that didn’t necessarily derive from the Convention, but derived from the powers of the ministers... there were enough ministers present that you could even begin to talk about the sense of the international community, outside of the COP. .. I still think it was a very important moment in the process”.

The experience of the roundtable was, therefore, ambiguous. Although it did result in the important Geneva Ministerial Declaration, this was mostly negotiated on its margins by an even smaller group than that present at the roundtable. The discontent provoked at the exclusion of some parties underscored the dangers of abandoning the inclusivity of formal procedural equity, without generating clear benefits in terms of more open debate. As the Executive Secretary acknowledged in his interview, “the ministerial roundtable may have been counterproductive, due to its selection and exclusion of countries”.

249 Direct participation Perhaps the most important impact of ministers, particularly in the final stages of COP 3, was their direct intervention in the negotiations to provide ‘"crucial political energy” (Wettestad, 1999:23). Although ministers did not generally participate in official formal plenary or informal group meetings, a small number of them were invited to participate in informal consultation groups, notably the Ministerial Group convened by Estrada and the COP President’s informal consultations (see chapters 4, 6). Where ministers were particularly active, however, was in unofficial negotiations, seeking to broker deals with their counterparts behind the scenes, or sanctioning changes in national positions and agreeing proposed compromises that officials were not authorized to decide upon. At COP 3, therefore, ministers were most active in both the most and least formal arenas', that is, almost all ministers took part in the traditional formal debate and many were also engaged in consultation groups and negotiations behind the scenes. They were not, however, expected to be involved in the mainstream, official negotiating arenas, that is, CoW plenary and official informal groups. Ministers could thus play to their strengths, appearing on the plenary stage and delivering theatrical monologues on the one hand, and engaging in political deal- making behind the scenes on the other.

Box 8.1: The importance of ministers

“The fact that they were there was critical, it meant that they could change their country’s positions and then you could properly negotiate...” (BINGOl).

“Ministers ... don’t know the details, and therefore they will not necessarily make “the right” choice ... but they’ll make a decision.. .they’ll reach an agreement” (J2).

Several interviewees emphasised the importance of having ministers on site to bring the negotiations to closure (box 8.1); as one remarked, ministers are “the icing on the cake.. .they are there to solve the problems that officials cannot” (EUSEC2). While officials had to negotiate according to instructions from their governments and not deviate beyond a certain bottom line, ministers, who were members of the government that had issued the instructions in the first place, could agree to change that bottom line. Moreover, while officials who had been

250 involved in the negotiations for some time tended to have a good grasp of details, including the history of negotiations and the importance of particular words, ministers tended to see a bigger picture and could relate the negotiations to other policy areas. Such a broader approach was important in the final stages of negotiations when a package deal had to be constructed. Given the economic implications of climate change, including for national competitiveness, it was important for ministers from different governments to be able to talk directly and reach understandings with each other. Ministerial presence was therefore crucial to lowering negotiation transaction costs in the intense final stages at COP 3 when time was short and quick decisions were needed (Oberthiir and Ott, 1999). According to one interviewee (Watson), “without a ministerial session, Kyoto would have failed.. .Because the middle level bureaucrats... don’t have enough power to close the deal. It takes the ministers to close the deal”.

An interesting dimension to the impact of ministerial presence was the influence of expectations, with a deeply engrained perception among many delegates that it would be ministers who would resolve the outstanding critical issues and bring the process to closure. As one interviewee (AOAC2) explained:

“There is still this working myth that we [officials] are the ... drones that work to prepare the clear options that ministers will sit down and sharpen their pens and tick the ones that they w ant... whenever an issue floats beyond a delegation’s ability to resolve it, they say, ‘well, this has now become an issue for ministers’... Ministers rise above what the drones do... Everyone else is operating under instructions, but ministers, they write their own instructions... Whether that myth is true or not, it’s one of the negotiating techniques...”.

This expectation, however, held the danger of inducing over-reliance on the part of officials that ministers “who yesterday were thinking of something totally different and tomorrow will think about something totally different again” would “suddenly come in and ... crack two or three seemingly uncrackable points” (EU2). As the Russian delegate stated during AGBM 8 part II on the eve of COP 3, “there is a view that the ministers [will] come in next week and decide everything. We should not leave everything to them... this would be a mistake”

251 (AGBM 8, 1997i). This can be seen as part of the tendency to backload negotiations, discussed in chapter 9.

Effective ministerial decision-making was in fact critically "dependent on bureaucratic legwork” (Wettestad, 1999:213). That is, it was important for the negotiations among officials to resolve the bulk of the issues, leaving only a small number of political questions for ministers to consider (Szell, 1993). This was achieved to a large extent at COP 3, where Estrada used the impending arrival of ministers as a means of exerting pressure on delegates to accelerate their negotiations (see also chapter 9). On Thursday of the first week, for example, he stated to the CoW plenary “we should not leave all points open for ministers to decide” (CoW, 1997g). Two days later, he urged delegates to "put the pieces together to show the ministers who are coming” (CoW, 1997h). By the time ministers made their debut on the Kyoto stage in the second week, many of the draft Protocol articles had already been agreed in principle (see FCCC/TP, 2000a). A good example is the draft article on policies and measures. Following intensive negotiations over a complicated text in the first week of COP 3 (see FCCC/CP, 1997a), by the time ministers arrived the whole text was clean except for one set of square brackets around a single sentence, reflecting outstanding disagreement over whether the application of policies and measures should be mandatory or voluntary (see FCCC/CP, 1997c). The more peripheral text in the article had been cleared up, allowing ministers to focus their attention on the core political issue that only they could resolve.

Disparity in participation An important feature of ministerial participation was the much greater activity of industrialized country ministers relative to those from developing countries. At COP 3, for example, in many cases delegations from developing countries (and EITs) continued, in practice, to be led by officials, with ministers confining themselves to ceremonial activities. The Chinese minister, for example, ceded his place at the COP President’s informal consultations to an official, des;pite the provision of interpretation.

252 Such disparity in level of participation raised obstacles to convening effective negotiation forums based on ministerial participation, due to the differing strengths and approaches of ministers relative to officials, as well as issues of protocol. Officials conversant in details could out-manoeuvre ministers not so experienced in technical and textual minutiae, while the lack of power of officials to agree to compromises could frustrate ministers. Several interviewees pointed to this problem. One (Jl) noted, “on the Annex I side you get ministerial level, but on the developing country side you get the old cohorts still there...we found that extremely unhelpful”. Disparity in participation helps explain the lack of success of the ministerial level consultation groups at COP 3 (see also chapter 6).

Box 8.2: Developing country ministerial representation

“Climate change is not a priority for those people... Ministerial participation can only be effective if the person is interested in the issue. The reports that we prepare... the minister doesn’t read them. And if he doesn’t read them... he can’t do very much... ” (AFl).

“High level meetings are attended by people who don’t necessarily know the issue, who do not necessarily listen. In some countries.. .the ministers only want to travel ...to take advantage of the free ride, so you are not getting very much out of that” (AS2).

“Ministers from developing countries have two problems. First, they don’t know the issue very well, at least not as good as developed countries. Second, they can’t speak proper English.. .[My] minister can’t speak English at all, so how can he negotiate...” (ASSEC2).

Several developing country interviewees spoke of problems associated with their effective participation at the ministerial level, including lack of priority given to climate change, language barriers and the use of negotiation assignments as patronage (see box 8.2). Given these difficulties, it is not surprising that officials continued to be the most active negotiators on developing country delegations. Kyoto therefore saw a small number of Annex I party ministers take on leading roles in the negotiations, while the majority, mostly from developing countries, assumed only ‘bit parts’ in the ceremony of the traditional formal plenary.

253 Overall, several interviewees took a rather cynical stance relative to ministerial participation, suggesting that the main contribution of the formal debate and COP 2 roundtable had been to give ministers ‘something to do’, especially those ministers who were not ‘key players’. Some interviewees openly wondered what they would do with their ministers if these were not occupied in the formal debate or alternative forums. Such comments suggest that, aside from the ministers from the most influential parties, ministerial presence is often seen as more of a burden than a benefit, implying that the political leadership, skill and energy that ministers could yield has, so far, not been tapped to its full potential.

THE AUDIENCE; NON-STATE ORGANIZATIONS

“With barely 20 days of negotiating time remaining before Kyoto, parties cannot afford to allow even a single negotiating day to pass without discussing specific emission reduction targets” (ECO, 1996d).

“There is no need to rush into unnecessary action.. .there is nothing sacred about the Kyoto deadline” (Ecologie, 1997b).

We now turn to examine channels in place for the participation of the audience of the Kyoto Protocol negotiations, that is, non-state organizations active at the international level"^. This section focuses mostly on NGOs, touching only briefly on IGOs, whose informational role was discussed in chapter 7, and the media, whose participation was governed only skeletally by the organization of the negotiation process and was therefore only minimally open to collective policy manipulation"^

As discussed in chapter 3, NGOs active in the Kyoto Protocol negotiations covered a wide spectrum of interests, objectives and strategies. There were environmental NGOs (ENGOs) seeking to strengthen the environmental

A vast literature has emerged examining the role of NGOs at the national and local, as well as international levels, including from a more theoretical perspective in terms of their contribution to the rise of a new form of politics. For such analyses, readers are directed to Princen and Finger (1994), Keck and Sikkink (1998), Albin (1999b), Newell, (2000) and Yamin (2001). For analyses of the role of the media in climate change in general and the Kyoto Protocol negotiations in particular, see Newell (2000:ch.4). For a discussion of the broader role of the media in international negotiations, see Gilboa (2000).

254 provisions of the emerging Protocol; fossil fuel business and industry NGOs (BINGOs) whose “preferred option” was that “the Kyoto process would eventually lead nowhere” (Oberthiir and Ott; 1999:73); and a plethora of more moderate BINGOs, academic NGOs and other interest groups (see Barrett and Chambers, 1998; Taalab, 1998). This chapter focuses in particular on BINGOs and ENGOs, as these were the most active and visible during the negotiation process

It should be noted that, during the Kyoto Protocol negotiations, a consultation process was underway in the subsidiary bodies to consider different options for admitting and involving NGOs. A workshop was convened, views were elicited from NGOs and proposals were put forward by the secretariat (see FCCC/SBI, 1997c, d). A decision on the outcome of the process, however, was delayed until after COP 3'".

Rules for attendance and participation The mainstay of participation by non-state organizations in the climate change regime, in line with the general rule in the UN system, is that such organizations have no negotiating or decision-making role and can only participate in an informal, observer capacity (Susskind, 1994). The reach of such an informal, observer role, however, has varied considerably, particularly in the recent past with increasing demands for NGO participation in environmental negotiations"^ As Susskind (1994:48) notes, “the rights accorded to NGOs are... unpredictable’ ’.

Formal rules for the participation of non-state organizations in the climate change regime are very limited. Article 7.6 of the Convention deals with the representation of observers at sessions of the Convention bodies, making a distinction between two types. The first comprises UN bodies, that is, the UN, its

For a more extended analysis of the role of NGOs in the climate change regime, see Newell (2000 ). See Appendix C for the outcome of the process. See Doherty (1994), Fomerand, 1996, Donini (1996) and other articles in Gordenker and Weiss (1996), Albin (1999b) and UNEP (2001b).

255 specialized agencies and the International Atomic Energy Agency, along with states not party to the Convention, who “may be represented at sessions of the COP as observers”. The second consists of any other bodies or agencies, “whether national or international, governmental or non-governmental”, that is, IGOs and NGOs. These organizations are subject to more detailed criteria for admittance. According to Article 7.6, any IGO or NGO wishing to attend negotiating sessions:

• Should be qualified in matters covered by the Convention; • Should inform the secretariat of its wish to be represented at a session of the COP as an observer; and • Will be refused admittance if at least one third of the parties present object.

The draft rules of procedure repeat the Convention provisions, with some elaboration. Rules 6.2 and 7.2 provide for the participation of observers (both UN bodies and IGOs/NGOs) in the proceedings of regime sessions, stating that these may participate:

• Upon invitation of the President; • Without the right to vote; • In the case of IGOs and NGOs, “in matters of direct concern to the body or agency they represent”; and • Participation will not be permitted if at least one third of parties present object.

These basic rules are largely unremarkable, and mirror those in other regimesHowever, the climate change regime has built on them to develop its own set of more detailed improvised established practices, which differ in many respects from those in other regimes.

In order to be represented at sessions of the regime bodies, non-state organizations (rather than individuals) must be formally accredited. NGOs must

See, for example, the rules of procedure for the ozone regime (UNEP, 2000) and the CBD (CBD, 1994).

256 fulfill two criteria to pass through a first screening by the secretariat: they must be “qualified in matters covered by the Convention” as required by Article 7.6, and, in accordance with established practice, they must “furnish proof of their non profit, tax-exempt status” (FCCC/SBI, 1997c:2). In view of the all-encompassing nature of climate change, the constraint tends to be the demonstration of non profit status, rather than of being ‘qualified’, usually interpreted as ‘having an interest’, in climate change. The effect of the non-profit criteria is to require businesses to group together in non-profit coalitions, such as the International Chamber of Commerce, rather than representing themselves’‘I The secretariat then compiles a list of successful applicants for the COP bureau for its clearance. This is usually a formality, and it is rare, but not unheard of, for the bureau to raise concerns. The list of cleared applicant organizations is then put to the COP for formal accreditation. Due to the large number of organizations seeking accreditation, applications received in between sessions of the COP that have passed through the secretariat and bureau may be presented to the next subsidiary body session for provisional accreditation, pending formal action by the COP. The accreditation of observers is rarely challenged at this stage. As Wettestad (1999:212) notes, the climate change regime thus seems to have adopted an “overall inclusive model”, with generous criteria for accreditation that has enabled a wide variety of organizations to attend regime body sessions, including those opposed to meaningful climate change mitigation action^^^. The number of accredited NGOs rose during the Kyoto Protocol negotiations from 151 at COP I to nearly 350 at COP 3, with some 100 NGOs accredited at COP 3 itself’ (FCCC/SBI, 1997c; Carpenter, 2001).

Although this is not inscribed in any official document, the climate change regime recognises three main NGO constituencies: environmental NGOs, business

This differs, for example, from the established practice in the CBD, where businesses (e.g. Monsanto) may be accredited as themselves (CBD, 1999). One of the proposals floated as part of the consultation process on NGO participation underway in the subsidiary bodies was for NGOs to be required to “declare support for the aims of the Convention, for example, its objective and principles” (FCCC/SBI, 1997d:3). Such a proposal was, unsurprisingly, strongly denounced by NGOs of an obstructionist bent (e.g. Ecologie, 1997a). In addition, some 50 Japanese NGOs were accredited for COP 3 only.

257 and industry NGOs, and local authorities'^' (FCCC/SBI, 1997c; Taalab, 1998; FCCC, 2000). This contrasts with the “major groups” identified by Agenda 21, which comprise nine constituencies (Agenda 21, 1992; Grubb et al., 1993), and quite clearly does not reflect the full diversity of NGOs represented in the climate change regime (FCCC/SBI, 1997c; Taalab, 1998).

Facilities provided to non-state organizations varied throughout the negotiations. At each AGBM session, the ENGOs and BINGOs were each provided with office space, including a computer. At COP 3, in anticipation of a high NGO presence, the secretariat, working with the Japanese host government, made arrangements for a separate NGO centre, shared with the media, in a building linked to the main conference centre by an underground passageway. Extensive facilities were provided in this centre, including free internet access, meeting rooms and eating establishments (Oberthiir and Ott, 1999). Providing dedicated facilities for NGOs in this way recalls the practice at major UN conferences such as UNCED, where a separate NGO ‘Global Forum’ was organized (Doherty, 1994).

Attendance The number and variety of NGOs attending the negotiations rose throughout the process, starting, at AGBM 1, with around 50 organizations (approximately 160 individuals), some 80% of them from ENGOs, BINGOs or academic NGOs; and rising at COP 3 to some 236 organizations, with only 66% from these three constituencies, and individual representatives (3663) easily outnumbering State delegates (2273)'^^ Such figures demonstrate the massive interest in the Kyoto Protocol negotiations from a broad swathe of interest groups.

An important dimension to NGO presence in the Kyoto Protocol negotiations was the great disparity in representation between NGOs from OECD countries on the one hand, and from developing countries and EITs on the other. On the eve of

The local authority constituency was added at COP 1, following high levels of activity and lobbying by the constituency at that session (Taalab, 1998). Since then, however, it has been less active. Author’s calculations, based on list of participants (FCCC/INF, 1995a; FCCC/INF, 1997d).

258 COP 3, 91% of NGOs accredited to the climate change regime had addresses in OECD countries (with 21% in the US alone). The remainder hailed from non- Annex I parties, with only one NGO registered in an EIT^^^ (FCCC/SBI, 1997c). This situation echoed, and indeed magnified, that among parties where, as noted above, OECD countries were typically much better represented than developing countries or EITs. The disparity was even more striking in the case of BINGOs, where not a single developing country business organization was represented, and only a small handful of developing country individuals served on the umbrella coalition of the International Chamber of Commerce at certain sessions^^\ Lack of developing country representation was acknowledged as a problem by both ENGO and BINGO interviewees. It can be explained by the typically smaller, sometimes non-existent, NGO communities in many developing countries and EITs, along with the low priority often assigned to climate change by those NGOs that do exist and, for those existing NGOs interested in climate change, scant resources to finance participation at the international level

While the climate change regime extended funding to assist developing countries and EITs in attending sessions of the regime bodies, there were no similar measures in place to support and promote the attendance of NGOs from those countries. NGOs, notably ENGOs such as the Climate Action Network, sought to raise funds themselves to pay for participation by developing country colleagues, but with only limited success (Arts and Rudig, 1995; ECO, I996e; ENGOI).

Vehicles for participation Given the paucity of formal rules governing the participation of NGOs, this element of the organization of the negotiation process was open to considerable policy manipulation. Indeed, there were significant differences between the

Although some European ENGOs, e.g. Climate Network Europe, sometimes had EIT nationals on their delegations (e.g. FCCC/INF, 1996b). The International Chamber of Commerce delegation to AGBM 3 included individuals from Central America, the Republic of Korea and Zimbabwe, while that to COP 3 included individuals from the Republic of Korea and South Africa (FCCC/INF, 1996a, I997d). See Uvin (1996) on the many grassroots NGOs often active in developing countries, which are of a different character to the large, well-funded international NGOs in industrialized countries.

259 approach adopted by Estrada and by the Chairmen of the SBSTA and the Ad Hoc Group on Article 13 (AG13)‘^^. As discussed below, Estrada was generally wary of NGO influence, especially of the greyer BINGOs, and therefore interpreted potential channels for NGO participation in a minimalist manner.

Observing In accordance with the draft rules of procedure, all accredited non-state organizations were allowed to observe plenary meetings of the AGBM and CoW during the Kyoto Protocol negotiations, and also to attend the informal roundtables. No objections were ever raised by parties. Official documentation was also freely distributed to NGOs, as well as posted on the internet.

• Exclusion from the negotiating floor Following established practice in the UN system, NGOs were seated separately from party representatives, usually at the back or side of the room. In addition to their physical separation from state representatives, established practice specific to the climate change regime prohibited NGO representatives from coming onto the main negotiating floor during plenary meetings. This practice dates back to an incident at INC 11 in 1995 (Oberthiir and Ott, 1999). At this session, objections were raised to the presence of fossil fuel BINGO lobbyists on the negotiating floor, whose advice to OPEC states appeared to forestall an emerging consensus on the rules of procedure.

Several NGO respondents stated that the barring of NGOs from the negotiating floor had limited their ability to operate effectively in the negotiation process. One interviewee (A0AC2) commented:

“The opportunities can come and go so quickly in those kinds of debates... that if you are not there providing language at the crucial moment, then the opportunity passes. And it doesn’t matter how many papers you may have written or how many side events you may have had, but if you miss that opportunity, it doesn’t come back again.”.

The AG 13 was set up by COP 1 to negotiate the mandate and structure of the “multilateral consultative process... for the resolution of questions regarding the implementation of the Convention” provided for in Article 13 of the Convention. No agreement had been reached by 1998, however, when the Group made its final report to the COP (FCCC, 2000).

260 The Climate Action Network sent a letter to Estrada and the Executive Secretary in the run up to AGBM 2 calling for the restoration of NGO access to the floor (CAN, 1995). However, at its meeting a few days later, the COP bureau “decided not to change its policy ... b u t.. .agreed to leave it up to the discretion of the Chairmen ... whether, in the specific context of a given body, wider access could be granted” (Zammit Cutajar, 1995c).

The SBSTA Chairman took advantage of the leeway granted by the COP bureau to provide a seat for each semi-official NGO constituency on the meeting room floor (FCCC/SBI, 1997c). Estrada, however, who had been chairing the INC 11 meeting at which the above-mentioned incident occurred, maintained the ruling that NGOs should not be allowed on the floor during meetings, and recalled this practice at the opening of each AGBM session.

Not all NGO interviewees, however, agreed that exclusion from the negotiating floor was a major issue. One (BINGOl) remarked “if they [delegates] want to come and talk to you, well that’s up to them! If you can’t do your job outside those four walls [that is, behind the scenes], you’re not doing your job anyway”.

The established practice gradually lost its relevance when the secretariat moved from Geneva to Bonn, whose conference venues did have such clearly separated spaces for NGO seating. In addition, the advent of mobile phone technology allowed NGOs to communicate with delegates without coming onto the floor (Oberthiir and Ott, 1999). One interviewee (SECl) recalled, “at INC 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”.

• Exclusion from informal groups The draft rules of procedure only cover formal meetings, thus endowing the presiding officer with considerable discretion to determine whether or not

261 attendance and participation by NGOs in informal groups should be allowed. At the time of the Protocol negotiations, NGOs were typically not given access to informal groups, a practice that corresponded “to the conventional view that observers do not have a negotiating role in an intergovernmental process” (FCCC/SBI, 1997c:4). This practice, however, was not entirely clear, given the many types of informal groups for which different forms of participation might be appropriate (see chapter 6). Nevertheless, in line with his general wariness towards NGOs, Estrada adopted a literal interpretation to insist that the non groups convened from AGBM 6 should be closed to observersalong with all other informal groups.

The closure of the non-groups aroused strong objections from NGOs. Although most accepted the need for governments to bargain in private, as indicated by both ENGO and BINGO interviewees, many considered AGBM 6 to be too early to justify their exclusion. According to one interviewee (ENGOI), “I think it [closure of informal groups] happened a little bit too soon ... I don’t think there was immense progress because we weren’t in the room”. Both the ENGOs and BINGOs wrote to Estrada in protest. The journal ECO (1997a) reported:

“NGOs are very disappointed by the Chairman’s decision to exclude us from important negotiating sessions. Simply through the establishment of a new category - non-groups - at yesterday’s meeting, the rules of transparency and public participation no longer apply”.

The secretariat recognized the serious implications in terms of transparency and goodwill of closing the non-groups and sought, in vain, to change Estrada’s mind when he announced his intention to convene four closed non-groups at AGBM 7, in effect barring NGOs from almost all substantive negotiations. Estrada’s reply to the secretariat demonstrated his concern that NGOs might hamper negotiations and harked back to his experience at INC II: “I understand your reasons, but I know that the origin of the problem with rules of procedure was the presence of you know whom*^® in group meetings ... Sorry” (Estrada,

After some confusion, representatives of UN bodies were permitted to attend. Presumably a reference to Don Pearlman of the Climate Council (see chapter 3).

262 1997c). Kinley (1997a) warned his secretariat colleagues, “the NGOs will NOT be happy. So we need to be prepared for the onslaught”.

Estrada took steps to mitigate this ‘onslaught’ by convening daily morning briefings at AGBM 7 and 8 where, accompanied by the non-group Chairmen, he gave an update on the status of discussions and provided an opportunity for NGOs to ask questions, as well as to vent their frustrations (ENB, 1997c). Although discontent lingered, especially among the greyer BINGOs, NGO interviewees indicated that such briefings had been appreciated, even if they could not compensate for actually being in the room. One interviewee (BINGOl) recalled:

“The daily briefings were always useful.. .it’s always helpful to know where you stand, even if they were pretty simplistic on some occasions.. .the worst thing ... [would be] 10,000 people sitting around not knowing what the hell the state of play was”.

The situation changed at COP 3. From the second week, NGOs were admitted to observe proceedings at all meetings chaired by Estrada (CoW plenary and QELROs negotiating group), although the other informal groups remained closed. The final night of negotiations was completely open to all observers, including television cameras, when Estrada actively sought out public scrutiny to place pressure on parties to reach agreement (see chapter 6). The dramatic variation in the admittance of NGOs over the course of the negotiation process illustrates the essentially improvised and discretionary nature of this organizational element.

Making statements The most direct vehicle for NGOs to input into the Protocol negotiations was by making statements in plenary meetings. In theory, such statements could enhance transparency by providing a channel for feedback from NGOs to government delegates, as well as communicating information and ideas on possible integrative solutions. Unlike parties, NGOs did not have the option of formally submitting written views for reproduction and distribution in official

263 miscellaneous docum ents(see chapter 9). Plenary statements were therefore the only formal and official means of communicating a position to the negotiation process.

In line with Estrada’s minimalist approach to NGO participation, only one time slot was typically allocated for each of the three semi-official constituencies to make a statement and these statements were not afforded a prominent place. They were usually scheduled at the very end or beginning of a meeting, when many delegates were drifting in and out and not fully attentive. No statements were allowed in the CoW, as Estrada sought to underscore that this was a bargaining forum and did not want to waste time, in itself an indication of the low value attached to NGO statements. Table 8.1 lists the statements made at each AGBM session. Table 8.1: NGO statements to the AGBM Session ENGOs BINGOs Local Other Auths.

AGBM 1 CAN -- -

AGBM 2 BCAS ---

AGBM 3 CAN -- -

AGBM 4 WWF UNIPEDE -- (mainstream)

AGBM 5 CAN-France - ICLEI - AGBM 6 Ozone Action IPIECA (grey) ICLEI AFL-CIO (labour) EBCSEF (green) WCC (churches)

AGBM 7 CAN-Africa ICC (mainstream) ICLEI -

AGBM 8 CAN-Japan EBCSEF ICLEI - Specific CAN EBCSEF topics, by (Article 4.1) WBCSD (green) invitation (policies & measures) AFL-CIO - American Federation of Labor-Congress of Industrial Organizations; BCAS - Bangladesh Centre for Advanced Studies; CAN - Climate Action Network; EBCSEF - European Business Council for a Sustainable Energy Future; ICC - International Chamber of Commerce; ICLEI - International Council for Local Environmental Initiatives; IPIECA - International Petroleum Industry Environmental Conservation Association; UNIPEDE - Union Internationale des Producteurs et Distributeurs d’Energie Electrique; WBCSD - World Business Council for Sustainable Development; WCC - World Council of ChurchesWWF - World Wildlife Fund for Nature.

Although the AG 13 once broke with precedent and invited such submissions (FCCC/MISC, 1996c). The leader of the World Council of Churches was invited by Estrada to address the opening meeting of AGBM 6 following a high-profile event on climate change organized by the Council the day before.

264 As shown in table 8.1 above, only the ENGOs took up the opportunity to speak at each AGBM session. The absence of statements by BINGOs in the early sessions can be attributed to the differences of opinion between green and grey business, which meant that the constituency as a whole was unable to agree a common statement (Oberthiir and Ott, 1999). This led to two slots being given to BINGOs from AGBM 4, although without formally assigning these to different factions within the constituency, which always resisted any implication that it was split. At AGBM 6, a request to speak was received by a representative of a labour organization (AFL-CIO), which was accepted, despite the departure from the precedent of the three constituencies'^^ However, the statement expressed opposition to the whole Protocol negotiation process (see ENB, 1997a) and this, combined with the discovery that the representative had been speaking on behalf of a largely national organization rather than representing an international constituency, led Estrada to refuse permission to make a statement at AGBM 7. This provoked a letter of protest from AFL-CIO, as well as private expressions of concern to Estrada on the part of the US delegation. Estrada generally took as harsh a line with what he perceived to be obstructionist forces within NGOs as he did with such forces among parties.

A greater number and more expansive range of NGOs and other non-state organizations also made general statements in the COP. Twelve NGOs delivered statements at COP 3, including representatives of parliamentarians, labour organizations, youth and churches, along with more than twenty UN bodies and IGOs (see FCCC/CP, 1997g; Taalab, 1998).

Box 8.3: Differing views on the impact of NGO statements

“The interventions by NGOs are 95% of the time predictable, so there are no surprises whatsoever, make that 99% of the time predictable” (Jl).

“I had the honour to do the NGO intervention in Kyoto. To bring attention to what’s really happening can be a really powerful thing to do. It was in the second week, and everything was bogged down, and it was a reminder, a pep talk, of why are we here... in the lead up to Kyoto, the plenary statements were the only opportunity [to participate] so they were important” (ENGOI).

Workers and trade unions are defined as a major group under Agenda 21.

265 Interview responses suggest that the impact of NGO statements to the AGBM and COP was mostly limited, although an ENGO interviewee emphasized the inspirational contribution she hoped her statement had made at COP 3 (see box 8.3). One interviewee (AOACl) commented that general plenary statements by NGOs were “no different to the statements that the countries make as to., .their formal negotiating position”, and in that sense, like the plenary statements of parties, they represented basic exercises in passive persuasion, which were then built on more actively through informal, lobbying channels.

The practice for NGO interventions adopted by the AGBM curbed their potential impact. A key drawback, for example, was that, because only one statement was allowed per constituency per session (two for BINGOs), that statement was likely to be of a general nature in order to cover all the issues on the table. If NGOs had been able to make several statements under specific agenda items, as indeed they were allowed to do in the SBSTA and AGI3 (FCCC/SBI, 1997c), this could have allowed more targeted interventions, including specific recommendations and responses.

An interesting case in this regard arose at AGBM 8 when Estrada invited NGOs to participate more actively in proceedings. He did so partly in frustration at the reluctance of government delegates to engage in bargaining, and partly to appease NGOs unhappy at being excluded from the non-groups. He invited BINGOs to provide specific input on policies and measures (allowing two slots) and ENGOs to similarly input on the issue of continuing to advance Article 4.1 (with one slot). This was the first time that NGOs had been invited to provide such specific input, however, and they had difficulty in responding, delivering general statements rather than specific recommendations. The disappointing response can be attributed partly to the lack of precedent for giving NGOs an opportunity to formulate specific input, so that they did not know how to make best use of it. If NGOs had made interventions on specific issues throughout the

266 negotiations, their impact, both in terms of influencing party positions and communicating new ideas, might have been greater'

A second drawback in the AGBM was the semi-official, three-constituency structure. The structure was helpful to the production team in their organization of the negotiations. It avoided a situation where an unmanageably large number of NGOs wished to speak, and ensured that views from different sides were equally represented. However, the constituency structure was both too narrow and too broad to reflect the range of stakeholder groups active in the climate change regime. It was too narrow because many NGOs did not fit into the three constituencies. One academic NGO interviewee (ACNGOl) complained, “I fall between the constituencies. I am neither business, nor am I environment. I will never get a chance to speak in plenary”. The structure was also too broad because the environmental and business and industry constituencies encompassed a variety of positions and areas of expertise, which made it difficult for them - not just BINGOs, but also ENGOs - to reach agreement among themselves on a common statement. The statements made by the NGO constituencies could, therefore, only reflect a common denominator position among their members, which was necessarily more vague and more general than if individual, or small groups of, NGOs, some with expertise on particular issues, had been allowed to make their own interventions (as indeed they sometimes were in the AG 13).

A more effective means of eliciting contributions from NGOs was their participation in the informal roundtables convened at AGBM 3 and 4. NGO representatives were allowed to speak more than once, and outside the constituency structure, providing an important opportunity for them to communicate ideas to delegates in a forum that was precisely aimed at such an open exchange. At least'^^ four NGOs, for example, intervened during the roundtable on QELROs and three during that on possible impacts on developing

See Chasek (1994) for a similar example during the negotiations leading up to UNCED of where NGOs failed to make the best use of opportunities to input into the process through statements. Author’s calculation, based on cassette recording on file with secretariat. Many speakers did not identify themselves, and could have been from NGOs.

267 countries, including two ENGOs from Africa. The physical and status separation between government delegates and NGOs was much less than in plenary meetings, and NGOs could therefore participate in the debate on a more equal footing.

Special events and exhibits In addition to the formal vehicles for participation, “a tradition of ‘special events’ ... has developed on the margins of the official meetings” (FCCC, 2000:19). Time slots are generally provided at lunchtime and in the evenings for informal meetings, seminars, workshops or presentations, which may be organized by anyone and are then publicised in the official daily programme of meetings. In addition, the secretariat allocates a limited amount of space in the conference centre for non-state organizations (or parties) to set up exhibits to publicize their activities and distribute a variety of climate related information (FCCC, 2000).

The special events contributed to the overall Protocol negotiation process by providing a forum for NGOs to network, as well as to communicate and debate their views and ideas on how the negotiations should proceed (Oberthiir and Ott, 1999). Academic NGOs were particularly active in these forums. There is no doubt that the most interesting, constructive and potentially integrative solutions to the dilemmas of the Kyoto Protocol negotiations were proposed, developed and discussed in the more problem-solving atmosphere of the side events rather than the official arenas.

However, although several interviewees highlighted the usefulness of special events in terms of brainstorming and providing information, their potential impact on the negotiations was hampered by the limited attendance of government delegates. This meant that discussions often took place almost exclusively among non-state organizations. One interviewee (AOSISl) recalled how “special events usually took place when we had other meetings, so I missed most of them”, while another (A0AC2) commented “...I don’t think the small delegations ... anything under 30.. .would find the time to.. .follow side events”. Moreover, no formal records were kept of the special events, and there were no channels in place to communicate their outcome to the negotiating forums.

268 Nevertheless, providing an opportunity for NGOs to discuss issues and proposals - even among themselves - was important, even if it did not impact directly and immediately on the negotiations. As one NGO interviewee (ACNGOl) reported, “special events are extremely useful, to present our own research input or to get latest news of research being done by others.. .due to the proliferation of academic NGOs in the meetings, you get a lot of papers giving the latest scientific input, grey literature, which would not be published years from now”. Special events, together with exhibits, thus stimulated and encouraged the broader long-term development of the climate change plot, elements of which might, eventually, filter through to the actors on the negotiation stage.

Unofficial vehicles Some of the most important vehicles available to NGOs to lobby delegates and input into the Protocol negotiations were largely outside the control of the organization of the negotiation process although, crucially, they were facilitated by its existence.

A small number of parties (e.g. Canada) included NGO representatives on their delegations, providing a direct means for NGOs to influence the position of the party concerned and thereby contribute to the negotiation process. Others (e.g. the EU and US) convened regular meetings with their domestic constituencies. In a practice established since INC 2, the Executive Secretary has also met at least once a session separately with the ENGOs and BINGOs to discuss substantive or procedural concerns. Estrada himself did not consult with NGOs on a regular basis, although he did on specific occasions, for example, on the Chairman’s Text (see chapter 9).

Aside from these more established links, NGOs made extensive use of the densely populated theatre provided by the two-week negotiating sessions. The presence of several thousand individuals working on climate change in a single conference centre provided critical opportunities for intensive interaction, lobbying, networking and the exchange of ideas and information. Oberthiir and Ott (1999:51), for example, suggest that the negotiating sessions of the AGBM

269 “served a clearinghouse function”, while one interviewee (ACNGOl) commented, “it’s a big jamboree of climate researchers and policy makers... it’s indispensable...”. Several interviewees pointed to the importance of such informal lobbying. An NGO interviewee (BINGOl) stated, “you get at the people you want to get to, hopefully on a one-to-one basis, irrespective of the process... The corridors are the most important places to find people... where you can bump into them”. A government interviewee (Jl) agreed that “definitely the best kind of interaction are in the corridors”.

This interaction was facilitated by the smaller conference venues in Bonn, which, unlike the sprawling Palais des Nations in Geneva, threw government and NGO delegates closer together in a more concentrated space. It was also important in Kyoto that the NGO and official conference centres were close together. A criticism leveled at the organization of UNCED, for example, was that the distance between the NGO and official negotiation sites served to separate and insulate the two communities from each other (Doherty, 1994). Oberthiir and Ott (1999) similarly attach importance to the fact that the NGO and media centers were co-located, facilitating a productive symbiosis between environmental NGOs and the media.

An important communication and lobbying tool used by ENGOs was the ECO newsletter, which was first issued at the 1972 UN Conference on the Human Environment and continues today. Prepared by the Climate Action Network, this four-sided, tabloid style newsletter includes both serious analysis and commentary on the negotiations, as well as satirical articles and humourous illustrations with a strong environmentalist message. The newsletter was issued often daily and almost always in English during sessions of the AGBM and COP, and proved very popular among delegates of all persuasions. It was used as a tool for ENGOs to place pressure on government delegates, a source of information (including rumours on closed-door negotiations) and sheer entertainment (Arts and Rudig, 1995; Oberthiir and Ott, 1999).

270 Earth Negotiations Bulletin (ENB) Another newsletter, albeit of a very different nature, was the Earth Negotiations Bulletin (ENB), produced by the Canadian-based NGO the International Institute for Sustainable Development. This single sheet newsletter, funded by several governments and the secretariat, was issued daily with the aim of providing an impartial, factual account of the proceedings of the previous day^^"^. This helped both NGOs and government delegates to catch up with events in meetings they were unable to attend, a particularly important resource in the latter stages of negotiations when there were so many meetings taking place at the same time'^^ ENB was also posted on the internet, and was often the only source of detailed information available to individuals and organizations unable to attend the negotiations. The ENB newsletters thus significantly widened opportunities for public scrutiny of the negotiations by ensuring that news on the proceedings was available to a worldwide audience (at least, those with an internet connection). Moreover, most ENBs issued during the Protocol negotiations were translated into French. Several interviewees emphasized the importance of ENB to increasing the transparency of negotiations, including Estrada and a Francophone African (AFl).

SUMMARY AND CONCLUDING REMARKS

This chapter has covered three main topics; support for the participation of developing countries and EITs, arrangements for ministerial involvement, and provisions for the admittance and participation of NGOs.

It is clear that providing financial support for the participation of developing countries and EITs was an important concrete measure for enhancing the effectiveness criterion of procedural equity. Facilitating internal coordination within the G-77 was also helpful in terms of increasing the efficiency of the overall negotiations. However, the analysis also suggested that financial support for participation should be supplemented by more targeted capacity-building

ENB was first produced during the UNCED negotiations, and now covers many environmental negotiation processes (see www.iisd.ca/linkages). See also McConnell (1996) on the role of ENB during the CBD negotiations.

271 initiatives to help developing country and EIT delegates to perform better in the negotiations, not just to make the journey to the theatre.

The section on ministerial participation demonstrated the potentially important role that ministers can play by enhancing efficiency and providing leadership and skill and energy in the final phases of a negotiation, while also helping to raise public interest and knowledge about climate change and the negotiation process through their high public profile. This potential was exploited to a large extent at COP 3, where ministers from Annex I parties were central to bargaining and deal brokering, especially behind the scenes. It was critical to effective ministerial decision-making that sufficient progress had already been made by officials to enable ministers to concentrate on the key political issues. However, many interviewees felt that more innovative and effective means were necessary to involve ministers in future negotiations, given the limited usefulness of the traditional formal plenary relative to its high transaction costs, the ambiguous experience of the COP 2 ministerial roundtable, and the lack of participation of developing country ministers in bargaining at COP 3. In Estrada’s words, “it is a good idea to involve ministers, but we still have to find an effective way to do that”.

The extent to which the channels provided for NGO participation contributed to the effectiveness criteria was more multi-facetted. One of the most obvious contributions was that NGOs used the channels provided to them to increase the transparency of the negotiation process, including by observing and reporting on plenary meetings, attending the NGO briefings at AGBM 7 and 8, publicizing intelligence on behind the scenes negotiations and revealing the implications of particular options through the media, side events and ECO. The transparency role of ENB was particularly pivotal. Opportunities for public scrutiny of negotiations, however, were limited by the early closure of the informal groups, although the openness of the very final phases of bargaining was, conversely, remarkable. On balance, most interviewees agreed that the negotiation process had been relatively open to observer scrutiny, especially compared with regimes outside the environmental arena (ACNGOl; A0AC2).

272 NGOs were also able to contribute to the effectiveness criterion of providing information through distribution of literature (including ECO), side events and informal contacts with delegates, helping them to understand the issues at stake and their implications, and thereby manage the complexity of the negotiations. This emerged as a particularly key role for NGOs. Yamin (1998), for example, reports that NGO literature was useful in the negotiations on carbon sinks where official sources of information were lacking (see chapter 7), while a BINGO interviewee similarly reported how his constituency supplied information to EU delegates to help with their negotiations on the treatment of fluorocarbons in the Protocol. Several developing country interviewees underscored the importance of NGOs as a source of information for them. One (AOSISl) recalled:

“I became a good reader, I would read everything that NGOs gave me... I thought their contribution was useful, I believe even the business NGOs sometimes had some good points... That’s not to say everything is taken at face value, but its just another input to your thinking process”.

Innovative ideas put forward by NGOs, however, particularly academic NGOs, often did not have a direct impact on the negotiation process, but rather filtered through over time. In this respect, one interviewee (AOSIS2) emphasized the need for “greater provisions” to tap the “substantial intellectual input that NGOs can provide”.

A further contribution made by NGOs, specifically, ENGOs, was to exert pressure on parties firstly to reach agreement by the deadline, and secondly to agree an environmentally stronger outcome. Informal lobbying, including constructive liaison with the media, the use of ECO and, to a lesser extent, the communication of messages through plenary statements and special events, all provided channels for NGOs to exert this pressure. ENGOs also brought influence to bear in this regard through the provision of information that supported, and promoted, environmentally strong outcomes. As one interviewee (A0AC2) explained, “the massive complexity of the task ...disables the countries and enables the NGOs, it gives them a channel of influence ... Things can be explained in more than one way, and NGOs explain it in the way that promotes their interests and are very influential”.

273 ENGOs, however, were not the only groups active in the Kyoto Protocol negotiations. Grey BINGOs also sought to use the channels for participation provided by the regime to influence the process in the exact opposite direction, that is, in exerting pressure for a less substantively meaningful agreement, or indeed no agreement at all. Providing channels for the active participation of NGOs thus “by no means automatically means ‘greener’ decision-making” (Wettestad, 1999:22).

Overall, the participation of NGOs in the Kyoto Protocol negotiations was organized on a minimalist basis. The production team interpreted the formal channels for NGO participation in a parsimonious manner and without serious consideration of how their constructive contribution could be harnessed, in contrast with the careful way in which many other elements of the organization of the negotiation process were thought through. NGOs therefore concentrated their activities in the informal and unofficial arenas. This led several interviewees to comment that, although the negotiations had been relatively open, NGO contributions, especially in terms of providing information, could have been harnessed more productively. One interviewee (AOACl) commented:

“There could have been a lot more exchange... a lot more use made of the technical expertise that exists, that many delegations were in fact relying on anyway. It could have been available more widely and in a more efficient way, as opposed to ... in an inefficient way to particular ...delegations... It [the participation of NGOs] was generally insufficient in the process”.

In this respect, the contrast between the rather grudging involvement of NGOs in the climate change regime and the partnership between governments and NGOs envisioned in Agenda 21 is striking*^^. While Agenda 21 (1992:405-406) speaks of “the need for new forms of participation” and “real social partnership in

The Commission for Sustainable Development (CSD), the body charged with following up the implementation of Agenda 21, has been much more inclusive and innovative in its treatment of NGOs (Gordon, 1994; Imber, 1994). Ironically, however, more NGOs attend, and participate in, the climate change regime than in the CSD, whose relevance is seen as limited (Andresen and Skjaerseth, 1999).

274 support of common efforts for sustainable development”, NGOs in the Kyoto Protocol negotiations were kept at arm’s length. The failure of the vision of Agenda 21 to yet penetrate the climate change regime is partly due to the inertia of multilateral negotiations, which are based on long-standing practices that have traditionally excluded NGOs. The differing cultures of NGOs and state negotiators also place hurdles to the creation of meaningful official channels for interaction, while the highly political nature of the climate change negotiations, including the presence of grey BINGOs opposed to significant climate change mitigation action, has stoked up the traditional suspicion of many states relative to NGOs'^’. The tension between the demand for participation on the part of NGOs and the conservative procedural rules governing such participation is a very real one that cannot be so simply resolved.

The ozone regime has been more successful in involving BINGOs in its work. Industry representatives, for example, sit on its Assessment Panels, providing technical information and advice. Such constructive involvement, however, is more pronounced now that the regime has entered a less politically controversial stage; the ozone regime also suffered from obstructionist BINGO activity in its early phases. ENGOs, conversely, are now barely represented at the ozone negotiations (ENB, 2000d).

275 CHAPTER 9

THE THEATRICAL PROPS: TEXTS AND TIME MANAGEMENT

INTRODUCTION

The development of texts and the management of time were important props that the production team wielded in different ways to shape the performance of the Protocol negotiations. The two props were closely related: texts, for example, were used as markers of time to codify progress in the negotiations, so that time management was closely bound up with decisions on when and how to promulgate new texts. This chapter considers first the development of texts, followed by time management.

THE DEVELOPMENT OF TEXTS

"The basic work of the negotiations ... to produce texts that translate concepts into words” (SECl).

The story of the Protocol negotiations is essentially the story of how 76 written proposals submitted by 46 parties gradually evolved into the 25 page final, authentic text of the Kyoto Protocol that now resides at UN Headquarters in New York. In this sense, the negotiations can be characterized as a process of struggle between parties to secure the translation of their favoured ideas into texts, coupled with attempts to devise texts that covered enough differing preferred concepts to enjoy general consensus among parties. Texts played a crucial role in facilitating and concretizing the reaching of agreement among parties. As Kinley (1997b) put it in an e-mail to Estrada, “any discussion without text is almost a waste of time because, when confronted with text, theoretical convergence turns into real divergence”.

276 Many different kinds of texts were produced during the Protocol negotiations, including provisional agendas and annotations, reports, and various background information documents. In this chapter, we will concern ourselves chiefly with single negotiating texts and their precursors, including texts submitted by parties. The literature assigns an important role to single negotiating texts, viewing these as important tools for promoting a more cooperative bargaining approach and facilitating agreement. Single negotiating texts are considered to encourage opposing parties to focus on text rather than on the differences between them and allow many issues to be considered simultaneously, thus facilitating trade-offs and enhancing the efficiency of the process (see Raiffa, 1982; Sebenius, 1984; Young, 1989; Susskind, 1994). According to Fisher et al. (1992:122):

“The one-text procedure ... is almost essential for large multilateral negotiations. One hundred and fifty nations... cannot constructively discuss a hundred and fifty different proposals. Nor can they make concessions contingent upon mutual concessions by everybody else. They need some way to simplify the process of decision-making. The one-text procedure serves that purpose”.

Six iterations of a full single negotiating text were produced during the Kyoto Protocol negotiations, plus multiple iterations of specific elements. In addition, prior to the issuance of the first formal Negotiating Text in June 1997, two precursor texts were prepared, that is, texts that grouped and organized proposals from parties into one document but were not yet designated as negotiating texts. The raw material for both negotiating and precursor texts consisted of the written proposals formally submitted by parties to the secretariat. These were typically collated and reproduced in so-called miscellaneous documents, in the language in which they were received (usually English) and without formal editing. The process of textual development from these written proposals through to the final adopted text is outlined in figure 9.1 below. This chapter considers each step in the textual development process in turn.

277 Figure 9.1; A performance in many texts

Miscellaneous documents AGBM 1-8

Synthesis of Proposals AGBM 5

Framework Compilation AGBM 6

Negotiating Text AGBM7

Chairman’s Text AGBM 8

Revised Text COP 3

Technical review; Legal drafting group

CRP.4 CRP.2 9 Dec CRP.6 7 Dec. 11 Dec.

Adopted text 11 Dec

278 The raw material: Miscellaneous documents The basic documentary input for the Protocol negotiations were the textual proposals submitted by parties to the secretariat, which were issued in miscellaneous documents. Miscellaneous documents were used as an uncontroversial means of launching the negotiation process, and were the main texts before the AGBM up to and including AGBM 4. The submission of written proposals intensified after AGBM 4 as parties sought to get their preferred texts included in the precursor texts under preparation, that is, the Synthesis of Proposals and Framework Compilation discussed below.

The production of the formal Negotiating Text in April 1997 marked a watershed in the submission of proposals. According to the interpretation of the six-month rule by the UN Office of Legal Affairs (see chapter 5), no more “substantively new elements” could be put forward after its circulation (FCCC/AGBM, 1997b:6). Even after this watershed, however, and until the close of AGBM 8, written texts continued to be submitted by parties, typically fleshing out their earlier proposals.

Throughout the negotiations, the main function of miscellaneous documents, as identified by the Executive Secretary, was to act as “a vehicle for sharing ideas with other parties” (Zammit Cutajar, 1995d). Miscellaneous documents provided a shared focal point. They were the recognized channel for parties to publish and circulate their official views and proposals, and were made available to all parties, as well as the audience of non-state organizations and the interested public outside the negotiation theatre. From 1997, most of the contents of miscellaneous documents were placed on the secretariat web site, widening their accessibility.

Miscellaneous documents also played a crucial role in reassuring delegates that their views were on the table and under official consideration. The inclusion of proposals in an official miscellaneous document, with its own document symbol and the Convention logo, conferred recognition and status upon a party’s written text, which would then remain in UN documentation archives as a permanent textual record of a party’s position. It was more important for some parties than others to gain official recognition for their proposals in this way. For

279 example, both the G-77 and China and the US announced their proposed emission targets at AGBM 8. While the G-77 and China requested that their proposal be included in a miscellaneous document (FCCC/MISC, 1997d), the US never did so, and no official record of the US proposed target therefore exists within the regime. This can be partly attributed to the confident assumption of the US that its proposal would be given due attention in the negotiations, whereas the G-77 and China, a group of developing countries aware of their more limited power, sought the official backing and protection of a miscellaneous document. Referring to the G-77 and China proposal at AGBM 8, Mwandosya (2000:85) tellingly remarks “ for appearing inan ojficial document the matter was formally on the table’' (emphasis added).

Estrada made use of the reassurance function of miscellaneous documents to bolster the confidence of parties that all their original proposals were still under consideration, even if their contents were not covered in the single negotiating texts. At AGBM 7, for example, when presenting the formal Negotiating Text, he stated, “all ... the various miscellaneous documents... remain on the table ...” (AGBM 7, 1997e), and also made similar remarks at the start of AGBM 8 (AGBM 8, 1997b) and the CoW (CoW, 1997a). Although negotiations then focused on the relevant single negotiating texts and the miscellaneous documents were scarcely referred to, this reassurance helped to increase the acceptability of those texts. It was also important as 2i face-saving measure. Delegates who had failed to get their chosen concepts reflected in a negotiating text could claim, in particular to their domestic constituencies, that their proposals were still on the table. The US, for example, in accepting to work with the Chairman’s Text at AGBM 8, pointed to the introductory statement in that text, to the effect that it was presented without prejudice to the original proposals from parties contained in the relevant miscellaneous documents (AGBM 8, 1997a). This enabled the US to accept the Chairman’s Text as a basis for negotiation, even though it did not contain the US proposal on evolution.

280 Precursor texts

Synthesis of proposals (AGBM 5, December 1996) At AGBM 4, Estrada obtained a mandate to prepare “a contribution to the fifth session that would synthesize all proposals made to date” (FCCC/AGBM, 1996g: 11). This was the first time that Estrada had been given a mandate to work with the raw proposals from parties, that is, to organize and synthesize rather than simply reproduce them. The Synthesis of Proposals (FCCC/AGBM, 1996h) was drafted by the secretariat, in consultation with Estrada, in a narrative style. It did not present legal text but simply a descriptive, objective synthesis of the proposals on the table without attribution to their proponents. The Synthesis was issued as a regular document and was, therefore, translated. It is in the few instances where the Synthesis attempted to interpret proposals that it provoked criticism from parties. The EU, for example, objected to the interpretation of its position on policies and measures, which characterized the proposal using language different to that of the proposal itself (AGBM 5, 1996b). In general, however, the cautious style and language of the Synthesis meant that it mustered sufficient confidence among parties for them to mandate Estrada, at AGBM 5, to take another step forwards in the textual development process, as discussed below.

Framework compilation (AGBM 6, March 1997) At AGBM 5, Estrada had hoped to obtain a mandate to prepare a formal negotiating text. However, his informal consultations at that session had indicated that some parties would consider this to be moving too fast. He therefore decided to take a smaller step forward, and sought a mandate to prepare a so-called ‘framework compilation’. As Estrada explained, “...Samoa proposed to have a framework and ... China proposed a compilation .. .1 thought that we could make a product that would be at the same time a ‘framework’ and a ‘compilation’ to satisfy all points of view” (AGBM 5, 1996d). The term ‘framework compilation’ was not one that conveyed an immediate impression of its structure or content, nor did any known precedents exist for it in the UN system. This gave Estrada some leeway in preparing the text, as he was not bound to any particular template. Like the Synthesis, it was drafted by the secretariat, and reviewed and approved by Estrada.

281 The Framework Compilation (FCCC/AGBM, 1997a) was a critical text in the negotiation process. By organizing all the textual proposals from parties “under one chapeau” (Jl) it shifted the focus of the negotiations from disparate miscellaneous documents to a single, unified text. The Framework Compilation thus served as a safe dress rehearsal for the formal Negotiating Text that was to come.

An important achievement of the Framework Compilation was to organize the proposals from parties under common headings, thereby forging an implicit consensus around a basic structure for the future Protocol (SECl). The Framework Compilation covered all proposals submitted by parties. It reproduced verbatim proposals that had been submitted in legal text, without any attempt to improve or edit the language, thus reassuring parties that their proposals had been faithfully reproduced. Proposals submitted in narrative language were also included, but in italics. This distinction between the two types of submissions, with a lower status conferred on the narrative ones, was intended to spur parties into formulating their proposals in legal text. According to one interviewee (Jl):

“One of the most useful things... was to include... most or all the submissions, but then italicized, giving special emphasis to wording that was of a legal character.. .And if our views weren’t reflected in that [way], then we had to make sure that it was reformulated ...so it started turning into a real negotiating text”.

The inclusion of submissions under common headings also made it easier to compare proposals, and to identify areas of convergence and divergence. It revealed gaps where only a few, or incomplete, proposals had been put forward, and more work needed to be undertaken by parties to develop their positions (e.g. on compliance). The Framework Compilation gave the first glimpse into how all the disparate elements that had been proposed might fit into a treaty structure, thus “allow [ing] the draft agreement to become increasingly concrete and specific” (FCCC press release, 1996).

As requested by several parties when conferring a mandate on Estrada to prepare the document, the proponents of proposals were identified. This helped to

282 enhance transparency, and particularly so given that this was the first time that the textual proposals from parties had appeared in all six languages of the UN.

Parties accepted the Framework Compilation as a basis for their work at AGBM 6, where Estrada encouraged parties to consolidate and streamline the document in order to prepare text for inclusion in the formal Negotiating Text. The texts resulting from this work were issued as non-papers, that is, without symbol or logo, on the understanding that they would then make up the Negotiating Text. In the final plenary of AGBM 6, Estrada duly obtained a mandate to “complete the negotiating text” by the six-month deadline (FCCC/AGBM, 1997b:5).

Negotiating texts The Negotiating Text (AGBM 7, July 1997) The formal Negotiating Text (FCCC/AGBM, 1997c) was prepared by the secretariat under the guidance of Estrada and communicated in all six UN languages to parties by 1 June 1997, in accordance with the six-month deadline. It incorporated all the non-papers coming out of AGBM 6, as well as new proposals from parties submitted up to 1 April 1997.

The Negotiating Text was a landmark in the negotiation process. Its circulation in time to meet the six-month deadline provided a concrete signal that progress was being made, and that the negotiations would not be hindered by obstructionist tactics. Removing the names of proposing parties from the text made it more plausible that substantive bargaining could start. The text was less personalized and it would therefore be easier for parties to consent to the merging, or even deletion, of their text. Moreover, proposals in non-legal language were not only italicized, but also moved to separate sections, thus focusing attention on the legal draft text.

The acceptance of the Negotiating Text as the basis for work at AGBM 7 can be attributed to the caution exercised in its preparation, along with that of its precursor texts. A significant factor in this regard was that parties played a central role in preparing the text through their work on the Framework Compilation at

283 AGBM 6. Indeed, to underscore the fact that the Negotiating Text emanated from the work of AGBM 6, it was issued as an addendum to the AGBM 6 report. This was instrumental to generating a sense of ownership of, and investment in, the Negotiating Text. To illustrate the importance of this point, reference can be made to the following statement by Saudi Arabia, one of the parties most likely to object to the eventual Negotiating Text, at the close of AGBM 5: “I understand that the AGBM ... will prepare the Negotiating Text and then it will be left to the secretariat [only] for the translation. The main body here will do the preparation for the text during AGBM 6” (AGBM 5, 1997e; emphases added).

The non-groups at AGBM 7 were charged with consolidating the Negotiating Text, with a view to producing a text including only legal language and clearly showing the different alternatives between which the AGBM had to choose. The Negotiating Text was, however, extremely unwieldy; its sheer size, some 129 pages, meant that it would be very difficult to use as a basis for bargaining. Even with the consolidation at AGBM 7, the resulting non-papers still amounted to 82 pages of intricate text. As one interviewee (EU2) noted, “.. .all negotiating texts ... are a kind of a dumping ground for 150 country’s ideas. [They] will tend to develop elephantitis after a while”.

From before the start of AGBM 7, therefore, the production team had planned that the outcome of that session should be a mandate for Estrada to present his own Chairman’s text. Estrada consulted with delegates on his intentions at both inter-sessional meetings of the Expanded Bureau held prior to AGBM 7 as well as throughout the session. His efforts bore fruit, and the AGBM granted him a mandate to “prepare a Chairman’s text to be the focus of work at the next session” (FCCC/AGBM, 1997d:5).

The non-papers emanating from the non-groups at AGBM 7 were approved by the AGBM, and were then issued after the session in an English-only document with an ‘INF’ symbol (FCCC/AGBM, 1997e). This choice of document in effect confined these texts to the ‘dustbin of history’. As an English-only document, it would likely be unacceptable as a basis for negotiation, while the use of an INF symbol designated it as a ‘for information only’ document. The issuing of the

284 non-group texts in this way was key to symbolizing that, at AGBM 8, negotiations would be based on the impending Chairman’s text. At the same time, however, it was important that the streamlined text coming out of the non-groups had been issued in an official document, which could be referenced and would be placed on the internet, as it covered ideas that would not be included in the forthcoming Chairman’s text.

Chairman^s Text (AGBM 8, October 1996) The preparation of a text by the presiding officer can mark a watershed in a negotiation process, often pointing the way to success or failure^^l It is the point at which a presiding officer exercises his/her authority to present his/her vision of a text that can spur parties to consensus. How far a presiding officer is prepared to go - creating an entirely new text or drawing faithfully on existing proposals, presenting a comprehensive compromise option or retaining alternatives on key points - is a matter of judgment. As the text is intended to move delegations closer to agreement, it must strike a delicate political balance between taking risks to propel the negotiations forwards, and not going so far as to impose an unwanted solution that is then rejected.

The Chairman’s Text in the Protocol negotiations (FCCC/AGBM, 1997f) was prepared through an iterative process involving the production team, an Expanded Bureau meeting, and private consultations by Estrada with other trusted delegates. The secretariat prepared the first draft. In doing so, the core AGBM team consulted with other departments, especially more technical staff, on what would be feasible or desirable for the regime. Estrada sent in three draft articles he had prepared himself in consultation with trusted delegates: on continuing to advance Article 4.1; joint implementation; and voluntary commitments (FCCC/TP, 2000b). Estrada tested both the draft articles on voluntary commitments and joint implementation at the consultations hosted by Japan in Tokyo in September 1997 (see chapter 4).

There are many cases where an ill-advised Chairman’s Text triggered a negotiation failure, including the Cartagena biosafety negotiations (ENB, 1999). See also Appendix C on negotiations at COP 6 part I.

285 The first draft of the full text was sent to Estrada for comment. A second draft, incorporating Estrada’s comments, was circulated in advance to participants invited to the Expanded Bureau meeting (October 1997). At the meeting, Estrada went through the text, eliciting comments, requests for clarification, criticisms and suggestions for improvement (see Mwandosya, 2000:ch.6 for an account of the meeting). Afterwards, Estrada worked with the secretariat to incorporate those comments deemed to be useful and valid, as well as his own thoughts, into the final draft. The final document was available on the internet just over a week before the start of AGBM 8, but was only available in all languages at the session itself.

In order to forestall objections from parties that the text could not be discussed because of its late availability, and also to garner a critical mass of support for it, Estrada provided a briefing to each negotiating coalition - Latin America and the Caribbean, the African Group, AOSIS, OPEC, the EU, EITs, the full G-77 and China and JUSSCANNZ, in that order - immediately before AGBM 8 (the SBSTA and SB I were meeting at that time). He adopted a standard format for most briefingsexplaining and justifying the approach to, and contents of, the text, and hearing any concerns raised by delegates. Estrada also provided non state organizations with a similar briefing.

When AGBM 8 opened, the Chairman’s Text was accepted as the basis for negotiation, even though some parties (e.g. the EU and US) criticized elements of its content that differed from their stated positions (ENB, 1997e). This was a critically important development. If the Chairman’s Text had not secured sufficient support, the negotiations would have suffered a considerable setback, as well as eroding confidence in Estrada as Chairman. As one interviewee (EU2) noted, “they [presiding officers] can only do it [prepare a text] just once. They can’t say, oh, I got it very badly wrong, I will do it again”. Although it was not without criticism, a number of interviewees pointed to the usefulness of the Chairman’s Text in moving the negotiations forward. One (BINGOl) even suggested “the Chairman’s text was really the reason we got a Protocol”. Its

The secretariat did not attend the G-77 and China briefing, so this one may have been different.

286 success in gaining the acceptance of parties can be attributed to a number of factors, discussed below.

Estrada’s mandate to prepare a Chairman’s text, obtained at AGBM 7, had stated that he should “draw on the outcome of the work of the AGBM at its seventh session” (FCCC/AGBM, 1997d:5). In broad terms, the substantive content of the Chairman’s Text did precisely that, deriving almost all of its elements from the INF document. The structure of the Chairman’s Text was also similar to that of the Negotiating Text, and the Framework Compilation before it. It was not, therefore, a complete departure from existing proposals and previous texts. Delegates could broadly recognise its structure and contents and, because these were familiar, they aroused less suspicion. The draft article that did provoke controversy was precisely the one that departed significantly from existing proposals, namely that on voluntary commitments. While the subject matter itself was controversial, it can be argued that, if a text more in line with existing proposals had been included in the Chairman’s Text, it would not have incited either such concern on the part of developing countries or so much critical attention from Annex I parties (see FCCC/TP, 2000a), and might have successfully found its way into the final Protocol.

However, while being sufficiently similar to previous texts to be acceptable (notwithstanding the above-mentioned exception), the Chairman’s Text was also sufficiently different to mark a clear break in the negotiation process. From a presentational point of view, each section was labelled as an untitled ‘article’ and all narrative and descriptive language was removed. The Chairman’s Text therefore looked much more like a protocol than any of the previous texts. It was also far shorter, running to only 26 pages. For some parties, the chief achievement of the Chairman’s Text was simply to prune previous texts down to a workable size. The G-77 Chairman, for example, in his opening statement to AGBM 8, expressed admiration that Estrada had “been able to reduce a 200-plus- page compilation of proposals shrouded in a maze of brackets into a 25 page protocol or another legal instrument which paves a way towards the fulfillment of our mandate” (Tanzania, 1997).

287 An important role played by the Chairman’s Text was to produce a clean text, that is, without alternatives, on the less controversial issues, notably on reporting, review, introductory and final clauses, and institutions and mechanisms. Estrada surmised that, on these articles, opposing views were not strongly held, and parties would accept the presentation of just one option, even if it were not their preferred one. Moreover, the Chairman’s Text was now drafted throughout in a single editorial style, using consistent terminology and language. The production of clean text on less controversial issues, along with the new editorial consistency, was critical to reducing the substantive and indeed visual complexity of the document. Combined with the reduction in the number of pages, the Chairman’s Text was thus a much more manageable document than either the Negotiating Text or the INF document, enabling negotiations to proceed in a more efficient manner, focused on the substance of the key political issues. As Johnson (1993:126) puts it, “a coherent first draft is the sine qua non of any successful negotiation”. In a similar vein, an interviewee (BU2) expressed the need for such an exercise as follows:

“There has to come a moment when the Chairman ... effectively says, ‘we can’t proceed interminably with ... all the options.. .1 have to exercise my Chairman’s prerogative to table a text that I believe properly and fairly reflects everybody’s views, but cutting out a lot of the deadwood’.... Most people in their heart of hearts appreciate it. However they posture, they basically appreciate it”.

Another important function of the Chairman’s Text was to act as di face- saving device (Benedick, 1993). As one interviewee (AOACl) noted, “...by that stage no party wants to withdraw something from the table so it’s up to the Chairman to present... the face-saving compromise and choices”. By presenting text as his own, Estrada helped to loosen the bonds of ownership that tied parties to their own proposals. While parties might not be able to back down in favour of the proposals of others, they could do so implicitly by supporting a Chairman’s Text. Expressing support for a Chairman’s proposal was generally viewed as a noble gesture ‘in the spirit of compromise’, rather than as a capitulation. An example of this can be found in the provisions on amending the Protocol, where Estrada chose to apply the same three-quarters voting majority as in the Convention in his Chairman’s Text, removing the option of a two-thirds majority

288 that had been supported by AOSIS. AOSIS did not insist, however, to reinsert their two-thirds voting majority option, and the issue was thus brought discretely to closure. Clearing up less controversial sub-plots in this way was important to ensuring that the final negotiations would have the space and time to focus on the most difficult questions.

Although Estrada brought some of the minor sub-plots to closure, he kept the major issues open. What he explicitly did not seek to do was to present a comprehensive compromise proposal. Estrada retained several square brackets in the Chairman’s Text as indicators of the core issues under negotiation: the quantified target; differentiated or uniform commitments; single or multi year targets; the coverage of the target; and keeping the existing COP, or establishing a new Meeting of the Parties. By maintaining these options, Estrada sought to ensure that he would not be accused of going too far, and would not lose the support of the different sides in the negotiations. All main negotiating coalitions needed to be certain that the core positions they were defending, principally on issues relating to the target, were still reflected in the text. However, through the use of square brackets and alternative paragraphs, Estrada did usefully focus on the main alternative options on the core issues. According to one interviewee (AOACl):

“The degree of disagreement that was allowed to remain in that text was absolutely superb, it was handled in exactly the right way. It didn’t close off things, it provided a very good handle on what the key issues were, and where the likely choices would have to be made”.

On some controversial issues where alternatives were not so clear cut (e.g. joint implementation, continuing to advance Article 4.1, emissions trading), Estrada did seek to present a clean text which he thought might serve as a compromise between the positions of parties. The success of this endeavour, however, proved to be limited, partly because it was still too early for parties to consider such compromises.

A key ingredient to the general acceptance of the Chairman’s Text was the process through which it was drafted and presented. The Expanded Bureau

289 meeting was of central importance, helping to forge a sense of ownership of the text among those parties that would be most likely to challenge it. Involving these parties in the preparation process meant that they would be more inclined to look favourably upon the final version. Moreover, some changes were proposed at the meeting that helped both to move the negotiations forward and avoid future obstacles. For example, Japan and Samoa let it be known that they were dropping

their demand for a CO2 only target, thus requiring only the three and six gas targets to be covered in the text. The US similarly made it clear that it could not accept any reference to the word ‘principles’ when referring to Article 3 of the Convention in the preamble (see FCCC/TP, 2000b). Estrada’s bilateral discussions with trusted delegates, during the Tokyo consultations and “by phone, by fax or e-mail...” (Estrada; AGBM 8, 1997b), were also important in widening the reach of his consultations on the text. Finally, his presentation of the Chairman’s Text to all negotiating coalitions was key to harnessing support for it. Not 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 on behalf of the African Group at the opening of AGBM 8, commended Estrada “for [his] efforts, and the tim e... put in informal consultations with many parties... in trying to explain the rationale behind the negotiating text” (AGBM 8, 1997c).

The timing of the Chairman’s Text was also important. This is a point underscored in the literature (e.g. Lang, 1989a), which warns against presenting a Chairman’s text too early, so that it is viewed as a premature imposition (Szell, 1993; Antrim, 1994), or too late, when there is insufficient time to negotiate on the basis of it and it may again be viewed as an unwelcome ‘take it or leave it’ imposition (Ott, 2001; Grubb and Yamin, 2001). Presenting his Chairman’s Text at AGBM 8 was sufficiently late to have allowed ample opportunity for parties to streamline and consolidate their own textual proposals as far as they could, while also giving time to parties to familiarize themselves with the Chairman’s Text, work with it, and make it their own before the final round of negotiations at COP 3. The citations in box 9.1 illustrate these points.

290 Box 9.1: The timing of the Chairman’s Text

“People had a meeting to feel comfortable with the text, they thought about it in the inter-sessional period, and then went into Kyoto to have results.. (BINGOl).

“I think his text was excellent.. .the timing of it... came more or less at the end of that process of Parties having developed their positions as far as they could take them ...” (AOACl).

“[it wasn’t easy to] manage Estrada’s text with all its complexities... After a while, though...we familiarized ourselves with its structure and things became a lot clearer” (AOSIS 1).

The different draft articles of the Chairman’s Text were allocated to each of the four non-groups at AGBM 8, with Estrada urging delegates not to simply add square brackets and old language back into the text. His approach was largely successful. Brackets or footnotes recording objections and additional text were inserted but in no case was text simply lifted out of previous texts and added straight back in. The outcome of AGBM 8 was therefore a larger text, some six pages longer, but it was a considerable achievement that it did not swell to a much greater size. As one interviewee (EU2) put it, “if... you throw out 150 points, people inevitably, when you bring it to the plenary... will say you missed this point or that... but even then if you just build in five points, you’ve got a bonus of 145”. The text that emerged from the work of the non-groups at AGBM 8 was adopted by the AGBM in the form of conference room papers for inclusion in the Revised Text to be forwarded for final negotiation at COP 3 (FCCC/AGBM, 1997g). Estrada therefore used the same strategy as for the preparation of the Negotiating Text, that is, allowing parties themselves to prepare their own text for the final negotiations at COP 3, but this time based on a more manageable foundation. He explained this approach in his final statement to AGBM 8 as follows:

291 “I did try to bring to you a proposal [the Chairman’s Text] that was something in the middle of the road, something that will facilitate different positions to compromise, something that will help the understanding of different parties. And I’m satisfied with that; that was my task. The paper produced here [the Revised Text] have a different approach. It is the approach of 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"' (AGBM 8, 1997e; emphasis added).

The final texts

The Revised Text and conference room papers (COP 3) The texts emerging from AGBM 8 were reproduced unchanged, except for editing, into the Revised Text (FCCC/CP, 1997a) that was formally presented to COP 3 by Estrada, also in the format of an amendment (FCCC/CP, 1997b; see chapter 5). Given that it had been prepared by parties themselves, the Revised Text enjoyed broad legitimacy, and parties began working on it at COP 3 without challenge. It underwent four iterations before the final text of the Protocol was agreed.

At the end of the first week of COP 3, a conference room paper, CRP.2 (FCCC/CP, 1997c), was prepared by the production team to reflect the status of negotiations on the eve of the arrival of ministers. The text sought to differentiate between those draft articles that were preliminarily, or almost, agreed and those draft articles requiring further political negotiation, which were highlighted by means of a side-bar. CRP.2 proved useful in taking stock of the negotiation process to date, indicating the status of textual development on all the different articles and thereby providing a big picture view of the negotiations. This was particularly helpful given the disaggregation of the negotiations into numerous informal groups.

On Monday, 8 December 1997, a second stock-taking document was issued, CRP.4 (FCCC/CP, 1997d), tracking progress in the negotiations and recording preliminary agreement on further issues. This document served the added purpose of placing political pressure on parties to accelerate their negotiations through the inclusion of a draft set of emission targets proposed by Estrada. On 10 December,

292 CRP.6 (FCCC/CP, 1997e) was issued, including the final results of negotiations from all the negotiating groups. This was an almost clean text; the only square brackets were in the draft article on continuing to advance the implementation of Article 4.1, and there were no numbers included in draft annex B on emission targets. The final negotiations were conducted on the basis of this text in the plenary of the CoW.

The three CRPs were all issued in English only, due to lack of time for translation, raising some complaints from non-Anglophone parties (e.g. Morocco; CoW, 1997j). Although these parties were placed at a disadvantage, by this stage in the negotiations, the obstacles they faced were more fundamental. Even if the texts had been translated, the negotiations would still have been conducted exclusively in English (see chapter 6). The publication of these texts as CRPs also confirmed their informal status, that is, they simply showed the status of negotiation, rather than implying any commitment. At the same time, however, the CRPs were used as a means of concretizing fragile, emerging agreements, turning tentative compromises into reality. Once a text had been codified in writing, it tended to become permanent, aided by Estrada’s strong chairing. Unbracketed texts on several issues (e.g. review of commitments, provisions for EITs) were thus included in CRPs on a preliminary basis but subsequently remained unchanged (FCCC/TP, 2000a). Conceptual agreement and text became one and the same, so that the emerging agreement was built up and solidified organically through a bottom-up process - word by word, comma by comma - and could not then be easily unravelled.

The presence of a team of translators on-site in Kyoto, which was unusual for sessions of the COP, enabled the final text of the Protocol (FCCC/CP, 19971) to be available in all languages for formal adoption by the COP, some five hours after its approval in the CoW. In view of the absence of interpretation facilities, the availability of the Protocol text in all languages was critical for the legitimacy of its adoption (see chapter 5).

293 Promoting textual coherence: technical reviews and the legal drafting group The disaggregation of negotiations into informal groups meant that text was being developed separately by different individuals using varying terminology, approaches and linguistic style. In order to address potential coherence and consistency problems arising from this disaggregation, the secretariat conducted a technical review of the Revised Text prior to COP 3, identifying possible textual improvements and substantive queries (FCCC/CP, 1997k; see also chapter 4).

In addition, at the start of COP 3, Estrada announced his intention to convene a legal drafting group to review the text of the draft Protocol as a whole and iron out any legal problems or inconsistencies, a practice that is common in the negotiation of multilateral treaties. The Chairman of the legal drafting group, appointed by Estrada, characterized his task during his interview as follows:

“Unlike those that were negotiating at the time, I was thinking what will happen in two years time, when people who weren’t living with this actually had to try and interpret it. They deserve the basic courtesy of consistent use of language and easy cross referencing, and a general internal consistency...”.

The Group began meeting at the end of the first week, bringfing together a small number of delegates representing the main negotiating coalitions. Its work was hampered by the fact that the most important articles, which would have required the most through review, were not agreed until the very end of the negotiations. Although the final Protocol text was supposed to have been reviewed by the legal drafting group as the CoW agreed each article, lack of time and tiredness meant this did not happen. Another related problem was the intense politicization of the negotiations; it often proved very difficult to make even cosmetic changes to text that had been painfully negotiated in informal groups for fear of upsetting its delicate balance. Moreover, the fact that the legal drafting group was convened only late on in the process meant that it had little time to establish itself and gain the confidence of delegates. Due to these handicaps, the Group performed a valuable task in identifying some legal inconsistencies, but the changes made to the text were minor, and it was unable to address some of the more serious incoherencies.

294 A technical review conducted post-Kyoto by the production team, with the input of several parties, also helped to remove some of the more obvious inconsistencies and unintended incoherencies from the final text that was opened for signature at UN headquarters and included in the formal COP 3 report (FCCC/CP, 1997h). However, in many cases, discrepancies and ambiguities in the text were found to have substantive significance. It seems, therefore, that the papering over of substantive differences in parties’ preferences through obfuscation was as much responsible for the present inconsistencies in the Protocol as lack of time, the multiplicity of informal groups or poor coordination among those groups (see chapter 6).

We now turn to examine the second theatrical prop wielded by the secretariat in the Protocol negotiations, namely, the management of time.

TIME MANAGEMENT

“Chairman Estrada ... after stressing over and over again the extraordinary amount of business to be got through in such a short time, promptly adjourned the session after little more than an hour” (ECO, 1995a).

Good timing is a crucial dimension to any good theatrical performance, and the Kyoto Protocol negotiations were no exception. As Dupont and Faure (1991:53) suggest, time can be considered an “active variable” in a negotiation; the efficient management of time is critical to enabling agreement to be reached, especially in the context of highly complex, multi-issue negotiations. This section reflects on the duration of the Protocol negotiations, before considering the management of time first during the pre-Kyoto AGBM sessions, and then during the finale at Kyoto itself.

Duration The Protocol negotiations took place over a period of 30 months. The AGBM met eight times within this period, plus the half-day resumed session immediately before COP 3 (see the chronology at the start of the thesis). With the nine negotiating days of COP 3, the total official meeting time for the Protocol

295 negotiation process amounted to just over 50 days^"^°. A review of other recent environmental negotiations (see table 9.1) suggests that the duration of the Kyoto Protocol negotiations was neither particularly long nor short, falling roughly in the centre of the wide range of negotiating time spans. The intensity of the process, however, was notable, with a high ratio of meetings relative to the duration of negotiations.

Table 9.1: Comparison of duration with other environmental negotiations Negotiation Duration Mleetings Stockholm Convention on 30 months 5 meetings Persistent Organic (June 1998 to Dec. 2000) Pollutants Cartagena Biosafety 31 months (Initial deadline) 6 meetings Protocol (July 1996 to Feb. 1999) 42 months (Final deadline) 7 meetings (July 1996 to Jan. 2000) UNFCCC 15 months 6 meetings (Feb. 1991 to May 1992) Montreal Protocol 9 months 4 meetings (Dec. 1986 to Sept. 1987) Vienna Convention 38 months 7 meetings (Jan. 1982 to March 1985)

A particular feature of the Protocol negotiations is that they generated a considerable amount of ‘unfinished business’, including the details of the flexibility mechanisms, provisions on carbon sinks, the compliance system and reporting and review methodologies (Ott, 1997; Grubb et al., 1999). The existence of unfinished business at the close of a negotiation is not unusual and is often part and parcel of the continuous negotiations at work in many environmental regimes, as discussed in chapter 2. What is unusual in the case of the Kyoto Protocol, however, is that its unfinished business affects the effort required to meet its emission targets to such an extent that most Annex I parties, the key players in the regime at this stage, will not ratify until the outcome of the post-Kyoto follow-up negotiations are known (FCCC, 2000). Could it thus be argued that the Protocol negotiations were too short, and that more time would

Including Saturdays but not Sundays, which were officially designated as rest days, even at COP 3.

296 have enabled the resolution of the Protocol’s unfinished business before its adoption?

There was little support for this proposition among interviewees. Some argued that attempting to resolve more details through a longer process would have provided more scope for obstructionists to delay the negotiations, and this, together with the added workload, complexity and opportunity for disagreement, might have threatened the adoption of the Protocol itself. One interviewee (J2), who began by arguing that a single extra meeting might have resolved certain questions, ended up querying “but having said that.. .would it have come together? Would other things not have intervened? Could we have had other questions? This morass of details ...oh my goodness, throw up your hands, we can’t get there”.

Moreover, several interviewees noted that the more detailed work carried out as part of the post-Kyoto negotiations could only be possible based on the political agreements reached in Kyoto. One interviewee (EU3) commented:

“A lot of 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 of the way. So even if you had another two years to do it, you wouldn’t have got any further forwards. You would have had to resolve the political decisions first”.

Overall, there was near-unanimous agreement among interviewees that, despite the difficulties now facing the post-Kyoto negotiations, extra time attempting to resolve more detailed issues would not have made any difference, and might have been counter-productive. The exception concerns the specific issue of sinks, where some interviewees argued that an earlier start to the negotiations on that issue might have produced a better result (see chapter 7).

The use of time The wide variation in the duration of negotiations shown in table 9.1 suggests that, beyond a reasonable point, the amount of time available to a negotiation is less important than how that time is used. As Kaufmann (1988:52) puts it, “it is

297 not possible to establish an automatic and generally valid causal relation between the length of a conference and its degree of success or failure. What can be said is that the Chairman... and the delegates should have a clear idea how to organize their work in terms of the available time"'' (emphasis added). A key dimension to the effective use of time during the Protocol negotiations - as indeed in any multilateral negotiation - was to address the deep-seated tendency for parties to ‘backload’ negotiations, in other words, to hold off bargaining until the last possible moment (Kaufmann, 1988; Ilich, 1999; Oberthiir and Ott, 1999).

In terms of time management, there were two main phases to the negotiations: the first 30 months pre-Kyoto, and the finale of COP 3. Although the literature often focuses on the finale of negotiations, the careful management of time prior to that point is also critical, providing the conditions for a successful finale to unfold. According to Kaufmann (1988:52), “delegates must make careful use of the time available to prepare for the moment of truth, the last days of the conference when the principal decisions must be taken”. We now turn to consider this first phase of negotiations, before exploring the negotiation finale.

The first phase: a waste of time? There was an impression among many interviewees that the negotiations had made little meaningful progress prior to COP 3, especially in the first year, when the process had been dominated by procedural and organizational matters, along with passive exercises in persuasion. One interviewee (ACNGOl) commented “the first year ... after Berlin was almost a loss” while another (ASSEC2) observed “actually before Kyoto nothing happened. The whole Protocol negotiation was just in those two weeks”. Even Estrada, at the close of AGBM 8, wondered:

“...if it’s a good idea to have two years and a half to negotiate an instrument like this. Because at the beginning it was very difficult to start, and perhaps we did very little in one year. It’s something for us to have in mind for the future, if it is worth to have two years in a negotiation like this, or perhaps a shorter time will bring us to the same results (AGBM 8, 1997e).

298 Such impressions, however, neglect the fact that reaching agreement in a multilateral negotiation requires not only substantive bargaining, but also a preparatory learning process that lays the groundwork for that bargaining through exercises in persuasion and debate (Zartman and Berman, 1982). As one interviewee (SECl) noted, “we had to go through two years of learning, figuring out other positions”. Time was needed simply for issues to ripen in the minds of parties. An interviewee (ASSEC2) - who had initially stated that nothing had happened before Kyoto (see above) - admitted on reflection “we needed time to get people to understand the issues”. Moreover, there was a sense that delegates needed to ‘talk themselves out’ before bargaining could start. Estrada explained in his interview “we opened the possibility for people to repeat things one thousand times and get everybody tired, which is necessary ... to start working”

The first phase in the AGBM also gave time for delegates to get to know one another, build relationships, assess negotiating styles and identify possible allies. Estrada emphasized the importance of this factor in his interview “.. .the friendship was built in those [AGBM] meetings! ... they eat together, they go to the movies together, they sit together. And then it’s easier to work together”.

As discussed above, the cautious process of text preparation was critical in slowly constructing a document - the Revised Text - that could serve as an accepted basis for the final bargaining at COP 3. The politically contentious nature of the negotiations, coupled with the many complex issues put forward by parties, rendered such a step-by-step textual development process imperative, and time was needed for that process to play out. Similarly, the pre-Kyoto negotiations also gave Estrada time to test out and build up an established structure for the negotiating arenas of four main informal groups, which was then used as an accepted basis for the organization of work at COP 3.

Bodansky (1993:475) makes a similar comment on the Convention negotiations: “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 of other states’ views. They sent up trial balloons and explored possible areas of compromise. Indeed, without this mutual learning process, it is hard to imagine that agreement would have been possible”.

299 The first pre-Kyoto phase can also be seen as a rehearsal for Kyoto itself, during which parties practiced bargaining. Even during the early AGBM sessions, for example, the presentation of draft conclusions to the AGBM plenary provoked heated bargaining, despite the fact that those conclusions had no practical or legal significance. Bargaining over the conclusions allowed delegates to hone their negotiating skills, test the negotiating skills and techniques of other delegates, and gain experience of Estrada’s chairing style, in preparation for the ‘real’ bargaining to come in Kyoto.

Moreover, negotiations in the pre-Kyoto period did not just consist of exercises in persuasion and debate, or bargaining practice. At AGBM 8 in particular, substantive bargaining began on some of the less political issues, resulting in preliminary agreement on many of the legal clauses and institutional questions, along with the basic framework of reporting and review provisions (see FCCC/TP, 2000a:Annex II). Even on more controversial questions, substantive bargaining based on the Chairman’s Text allowed the options facing parties to be more clearly defined in the Revised Text. In some cases, even if no preliminary agreement was reached, much of the language in the Revised Text devised through bargaining at AGBM 8 was eventually incorporated into the final Protocol (op.cit.; Articles 9, 13). This use of time was critical in reducing the volume of work for the final negotiations and allowing these to concentrate on the most politically difficult questions.

While the above-mentioned contributions were important, there was the constant danger that the process would get stuck in persuasion or debate either through the efforts of obstructionist parties or through the deep-seated tendency of most parties to procrastinate (Secretariat, 1997c). As one interviewee (EU2) admitted, “our one failing as negotiators is that... we sometimes think the process could go on forever.It was thus important for Estrada to place constant pressure on parties to move ahead in the negotiations, and to instill dynamism and momentum to offset the natural propensity to backload the negotiations.

The production team wielded a number of tools to this end. Most obviously, Estrada constantly placed pressure on parties to advance the negotiation process

300 through rhetoric in his verbal addresses, to both the AGBM as a whole and to individual parties. Such pressure was often expressed by urging delegates to ‘start negotiating’, that is, bargaining, in contrast to ‘repeating positions’, in other words, exercises in persuasion (e.g. AGBM 3, 1996a). Estrada also exerted pressure in more concrete ways. For example, his exclusion of NGOs from the non-groups as early as AGBM 6, which many delegations and NGOs considered premature, sought to signal to parties that now was the time to start bargaining. According to one interviewee (AS2), “the non-groups were ...the very start of negotiations”. Similarly, at AGBM 8, Estrada used late night meetings to raise the tempo of the negotiations; for one interviewee (SECl), “late night meetings were important to cranking up the pressure”.

The production team also made use of symbolic breaks and markers to advance the negotiations, for example, by gradually preparing new, more advanced texts, as discussed above. Another example is COP 2, which took place roughly midway in the AGBM negotiations. The production team built up and reinforced the natural break point that it provided by organizing the ministerial roundtable and promoting the Geneva Ministerial Declaration which, notwithstanding its shortcomings acted as “a further impetus” (FCCC, 2000) to the negotiations (see chapters 5, 7, 8). In addition, the production team billed AGBM 4 (taking place during the same period) as a session for “taking stock and intensifying efforts” (FCCC/AGBM, 1996g), that is, an opportunity to look back on the negotiations to date and then progress to a more intensive phase. This symbolic break was heavily engineered by the production team, which succeeded in codifying it in the AGBM 4 report with the statement “the emphasis of the work of the AGBM must now move progressively towards negotiation” (op.cit.: 10).

The overall impact of time management during the pre-Kyoto negotiations was thus to create the conditions that would enable the bargaining finale to reach agreement and to limit the amount of backloading. The negotiation process had not stood still throughout the 30-month process, but had moved steadily ahead, propelled largely by the actions of the production team. By the time COP 3 started, parties had a manageable, single negotiating text with which to work and

301 an accepted structure for the organization of the negotiations; they had got to know each other and built up trust in the production team; they had gradually increased the intensity of their deliberations, identified the options among which they had to choose, and, significantly, started to engage in bargaining and clear up some of less political issues.

Nevertheless, at the close of AGBM 8, “a bargain on the most contentious issues was still not in sight” (Oberthiir and Ott, 1999:57-8). While important progress had been made pre-Kyoto, bargaining on the key questions - the nature, level and timing of targets, flexibility mechanisms, developing country issues - was backloaded to the negotiation finale of COP 3 which, at 10 days, was the shortest scheduled COP ever (and indeed since) held in the climate change regime. We will now examine the way in which this limited time was managed.

The finale: time management in Kyoto

• Chicken and egg A major challenge facing Estrada in the time management of the negotiation finale was a ‘chicken and egg’ problem; because so many of the key political issues were linked together - level and timing of targets, differentiation, sinks, emissions trading - and would thus be decided upon as a package, some parties argued that they could not resolve one issue until another related question had been resolved, often in a different negotiating forum. This dilemma had already emerged at AGBM 8 (Secretariat, 1997d) (and indeed before), where progress on banking and borrowing was blocked, pending a decision on whether to adopt multi-year targets.

To address this problem, which was also creating opportunities for procedural obstruction, Estrada sought to sequence the negotiations, using strict deadlines and pressure on the various informal groups, to gradually build up the Protocol package piece-by-piece. As part of this sequencing, he explicitly attempted to deal with “seemingly more technical issues ... early on during COP 3” (FCCC/TP, 2000a: 37), including the question of whether to adopt multi year

302 targets, methodological issues and provisions for EITs, all of which were agreed in substance by CRP.2 (op.cit.).

Estrada placed particular pressure on the informal groups on sinks and the EU bubble to reach agreement at an early stage, as he knew that many Annex I parties could not decide on their targets without knowing the outcome of negotiations on these two issues. Thanks largely to the deadlines and verbal exhortation imposed by Estrada, both texts were preliminarily agreed for inclusion in CRP.4 (op.cit.). Moreover, he played on the scheduled arrival of ministers for the second week of negotiations to urge delegates to resolve all possible issues before that time, in order to leave only the key political questions for ministers to address (see chapter

8).

The practice whereby negotiators could reach agreement in principle in informal groups, knowing that those agreements could then be revisited in the formal plenary (see chapter 6) was important to managing the complexity of the negotiations, and to addressing the problem of sequencing. On several occasions, Estrada overcame the tendency for delegates to delay agreement by simply gaveling text through, seeking to concretize fragile, ‘in principle’ agreements, as discussed above in the context of textual development. The draft provisions on review of commitments, EITs, and ‘borrowing’ for example, were gaveled through (or, in the case of borrowing, deleted) in this way and then codified into CRP.2, with Estrada stating that they could be revisited later as part of the package. However, he later did not permit these issues to be reopened (FCCC/TP, 2000a). Estrada’s actions helped to avoid a situation where all issues - including those of lesser importance - were backloaded to the second week.

• The deadline A critical tool for the effective time management of the negotiation finale, as well as the entire negotiation process, was the COP 3 deadline. The importance of deadlines in generating decisions is recognized in the literature. Zartman and

Borrowing refers to a US proposal whereby a party could use up some of its allowed emissions for the second commitment period already in the first period.

303 Berman (1982:195), for example, demonstrate how deadlines “tend to facilitate agreement, lower expectations, call bluffs and produce final proposals” (see also Raiffa, 1982; Dupont and Faure, 1991)*^^

The COP 3 deadline was, to a large extent, artificially generated and self- imposed. It did not, for example, coincide with a major intergovernmental conference, such as UNCED in 1992, which had provided a politically important deadline for the negotiation of the Convention (Zammit Cutajar; AGBM 1, 1995a). Moreover, the wording of the Berlin Mandate was quite soft, stating only that the Protocol should be completed “with a view” to its adoption at COP 3, rather than a stronger statement, such as ‘shall be adopted by COP 3’.

It was therefore critical to the deadline’s authority that it should be continuously reinforced through the actions and words of the production team (as well as ENGOs and others). Almost every AGBM report, for example, made reference to the COP 3 deadline. Moreover, as noted in chapter 4, Estrada never raised the possibility that the negotiations might fail. Nor did the secretariat. In the run-up to Kyoto, the Japanese delegation privately approached the secretariat to explore possible contingency plans if Kyoto failed, to which the secretariat responded “we have not thought about contingencies. For us, it is the unthinkable” (Kinley, 1997c). The Executive Secretary took a hard line on this. A suggestion by an AGBM team member to calculate the costs of reconvening COP 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.

Thanks to continuous repetition, the deadline of COP 3 became unquestioned, with the political imperative of fulfilling it one of the few common goals publicly shared by parties negotiating in good faith. All interviewees expressing an opinion on the matter stated that their delegations had considered the deadline to be final. The deadline generated its own momentum, pulling parties to agreement.

A less positive effect of deadlines is to push parties to brinkmanship and ‘negotiation by exhaustion’, as discussed below (Zartman and Berman, 1982; Schermers and Blokker, 1995).

304 Its political and public visibility meant that missing the deadline would have been viewed as a political disaster on the international stage, with OECD governments fearing that they would be held responsible at the national level. Interviewees agreed that the pressure of the deadline, and the operationalization of that pressure through constant reinforcement, had been critical to reaching agreement. According to the Executive Secretary, for example, speaking during his interview, “the Kyoto Protocol was the product of a deadline”.

• Negotiation by exhaustion Despite the production team’s best efforts, bargaining on the most political issues was still backloaded to the final few days of negotiations. Time was used more and more intensively at COP 3, leading not only to multiple parallel sub groups (see chapter 6), but also to late night meetings. While no official records exist of the timing of informal groups, the fact that the CoW plenary met after 8 p.m. every evening of COP 3 (except Sunday) and, on five occasions, was meeting at or after 11 p.m., provides an indicator of the intensity of the negotiationsThis intensity peaked with the final round of negotiations in the CoW, which lasted from 1 a.m. to 10:17 a.m. on 11 December. The formal adoption of the Kyoto Protocol in the COP did not take place until around 3 p.m. later that day, nearly 24 hours after the scheduled end of the conference. Such intense, late night negotiations and marathon sessions are not unique to the Kyoto Protocol negotiations, and have indeed become common in the multilateral environmental arena (see Schermers and Blokker, 1995; Werksman, 1999)"^^

The intensity of the final days and nights of negotiation generated what has been termed a process of “negotiation by exhaustion” (Oberthiir and Ott, 1999:89), “test[ing] the political will and physical stamina of negotiators” (Werksman, 1999:12). Negotiation by exhaustion hit the smallest and least- resourced delegations hardest (Werksman, 1999). Larger delegations were often

Timing of plenary meetings based on notes on file with secretariat and author. The negotiations on the UNFCCC (Mintzer and Leonard, 1994a), CBD (McConnell, 1996), the Stockholm Convention on Persistent Organic Pollutants (ENB, 2000c) and both the first and second negotiating rounds of the Cartagena Biosafety Protocol (ENB, 1999 and 2000a) all experienced exhausting, late night negotiation finales.

305 able to establish a rota system, so that the negotiations were constantly covered by a relatively well-rested individual (Oberthiir and Ott, 1999). This was not possible, however, in small delegations, with serious implications for practical procedural equity (see box 9.2).

Box 9.2: The inequity of negotiation by exhaustion

“. ..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 it... 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 rest... But it’s a real problem for us” (API).

“Coming from the south, I definitely and vehemently oppose late night meetings since we do not have the numbers to sustain it and therefore they do not work in our favour... those late night meetings appear suspicious in intentions and lack good faith” (ENG02).

Furthermore, the overrunning of the negotiations meant that, as noted in chapter 5, interpretation facilities were lost before the CoW had finished its work, placing non-Anglophones, especially less well-resourced developing countries and EITs, once again at a disadvantage. Many negotiators, especially developing country delegates, were forced to leave the conference centre before the close of the negotiations to catch their flights home (Oberthiir and Ott, 1999; Werksman, 1999).

Not all interviewees agreed that negotiation by exhaustion had been a significant factor on the final night. One, for example, from a well-resourced OECD country, said “tiredness was pretty marginal. We were on top, in command, the adrenaline was flowing” (EUSEC2). Interestingly, a non-Annex I party delegate (AOACl) took a similar viewpoint, stating “I don’t think it affects people’s ability, because they still have the three key things that they are looking for... despite their weariness”.

Nevertheless, negotiation by exhaustion meant that the commitments of states under international law were being negotiated late at night by individuals who were often suffering from extreme tiredness due to lack of sleep and overwork.

306 These were not propitious conditions for taking such important decisions. As one interviewee (SECl) noted, “the late night meetings are a terrible way to make public policy, at three in the morning by people who have not slept for three days”.

The tiredness of negotiators affected the text of the Protocol. Parties were less willing to devote attention to language and style after having been deprived of sleep, focusing simply on closing the substantive deal. As Werksman (1999:12) notes, “marathon sessions can undermine the quality of decisions, as negotiators.. .fail to choose their words carefully or to ensure the consistency of the text” (see also Szell, 1993; Schermers and Blokker, 1995). One interviewee (AOSISl) 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”. Moreover, there was no time for either the secretariat or the legal drafting group to review the text coming out of the various informal groups as whole.

Despite its drawbacks, almost all interviewees agreed that negotiation by exhaustion was inevitable in such a complex, politically contentious negotiation, and especially in the context of the very deadline that enabled agreement to be reached at all. As one interviewee (EITl) 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 midnight.. .1 don’t like it, but I’m afraid it is so”. Estrada himself recognized in his interview “[At COP 3] we start on Monday and finish on Wednesday and part of Thursday. If instead of going up to Wednesday, we go to Friday, then we are going to finish on Saturday... People delay decisions until the last moment”.

The perceived inevitability of late night, last minute negotiations partly reflects the linkages among issues, which means that, despite a degree of sequencing, it is impossible to agree on the final, core political questions except as a package, in quick succession. More importantly, however, it can be attributed to the psychology of negotiations, where parties engage in brinkmanship and wait to

307 see who will ‘blink’ first. According to one interviewee (AOACl), “they [the negotiators] will trade in their chips at probably the latest possible time in the hope that it will maximise the benefit they can extract from it”. Negotiators, therefore, are highly reluctant to back down from their positions until time has all but run out. It is only when a deadline is looming that proposals become take it or leave it offers, and “the alternative to a negotiated agreement will suddenly become a reality” (Zartman and Berman, 1982:195). Exhaustion then interferes (see Schermers and Blokker, 1995). Delegates are inevitably less resistant to pressure, their resolve weakens, and they are more likely to back down from their positions as physical tiredness take its toll, to the extent that some commentators (e.g. Ilich, 1999; Werksman, 1999) have referred to exhaustion as a technique. One interviewee (Jl) conunented:

“It’s a classic negotiating tactic, if we hadn’t been under that kind of pressure, under those kind of circumstances, we probably wouldn’t have come out with an agreement. ..You basically have to lift yourself up... work to that kind of pace, to that kind of level, to basically weaken people down so they will consent to compromise”.

At a more personal level, the exhaustion of late night negotiations can provide a sense of drama and occasion that some delegates relish, fitting in well with our theatrical analogy. As one interviewee (AOACl) put it, “at the end of the day.. .1 don’t think you can avoid the fact that the show has to happen on the final night.. .we would like to believe that we are all much more rational, but in fact .. .it’s a psychological thing.. .We thrive on it”.

Delegates - officials with bosses at home, or ministers accountable to the electorate - must be able to demonstrate 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. According to one interviewee (SEC2), “it’s the way that diplomats function... Delegates need to feel they have suffered. ..to be able to say ‘we tried really hard, we sweated, we did our best’”. Another interviewee (A0AC2) agreed “I think that it’s a pathology of the individuals involved, in some sense they wouldn’t feel that they had done their job properly if they didn’t push themselves to late at night”.

308 The role of expectations clearly played an important role here. Delegates expected negotiations to end in a dramatic, late night finale, and that is exactly what happened. One interviewee (A0AC2), however, made the point that “it’s not inherently necessary, but in our particular culture and way of doing things, it has become necessary”. Indeed, the brinkmanship of negotiation by exhaustion experienced in the case of the Kyoto Protocol was largely a product of a confrontational approach to bargaining, where negotiations are seen more in terms of battles to be won than joint problems to be solved.

SUMMARY AND CONCLUDING REMARKS

This chapter has demonstrated how the careful development of texts and the judicious management of time helped to enhance the efficiency of the negotiationsThe textual development process did so by focusing negotiations onto gradually more advanced single negotiating texts and, in particular, by producing a manageable Chairman’s Text that was accepted as the basis for negotiation. The success of the production team in managing this process was due largely to its cautious approach, whereby Estrada refrained from presenting a compromise on the major issues in his Chairman’s Text, consulted widely, and based the text on previous iterations with which delegates were familiar. While showing proof of caution, however, the production team also sought to generate momentum. At almost each AGBM session, and later during the CoW, a new type of text was produced that both reflected, and promoted, progress, however small, in the negotiations; the timing of the Chairman’s Text was particularly judicious. As one interviewee (Jl) put it:

“Even though negotiations always seemed to be very difficult, and sometimes a lot of progress apparently wasn’t made in the AGBMs, there was always a kind of statement [text] that seemed to show some kind of progress, a way of going forwards, that encouraged you to think in that direction... which I think played a very significant role in ensuring that COP 3 was a success.”

14 6 For an example of a very different, and less successful, approach to textual development and time management, see Appendix C on the post-Kyoto negotiations.

309 The section on time management showed how allowing time for persuasion and debate in the first phase of negotiations was important to paving the way for productive bargaining, but that it was equally important to combat the tendency of negotiating parties to backload negotiations to a dramatic finale. To this end, the production team sought to keep the ball rolling, by urging and forcing an acceleration in the pace of negotiations, encouraging delegates to move from persuasion to active debate and finally to bargaining. The reinforcement of the COP 3 deadline by the production team again promoted bargaining and was critical to achieving success within the specified time frame. Nevertheless, the negotiation finale still experienced late night, last minute negotiation by exhaustion, which had highly regressive impacts on practical procedural equity and transparency, while negatively affecting the quality of the text. The inevitability with which many negotiators viewed this factor was due largely to the prevailing perception of negotiations as confrontational bargaining. We will return to this point in the conclusions that follow.

310 CHAPTER 10

REVIEWING THE PERFORMANCE: AN ASSESSMENT AND LESSONS LEARNT

“It’s a faulty process, but it’s the only one we have” (AOSISl).

INTRODUCTION

Over the last six chapters, we have analyzed the production team and the role it played in organizing the negotiations, the choreography that governed the moves of the negotiating actors, the various stages where the negotiations played out, arrangements for scientific input that developed the plot, the organization of the cast of negotiating actors and non-state audience, and finally the wielding of textual and time management props. The analysis in these empirical chapters was structured on the effectiveness criteria developed in chapter 2, namely: efficiency; procedural equity; transparency; information accessibility; promotion of a cooperative approach; and provision of leadership and skill and energy. Having explored the effectiveness of individual organizational elements, we can now adopt the role of ‘theatre critic’ and assess the effectiveness of the overall negotiation performance, based on these effectiveness criteria. In doing so, we will use a rough scale of low, medium and high effectiveness to evaluate the extent to which each of the effectiveness criteria was met (see Young [1998] and Wettestad [1999] for a similar approach). The chapter begins by assessing each effectiveness criterion in turn before taking up some cross-cutting themes. It then brings down the curtain on the thesis by presenting an overall assessment, together with nine key lessons for future negotiations.

THE SIX EFFECTIVENESS CRITERIA

Efficiency A central challenge for the organization of the Kyoto Protocol negotiation process was to manage the complexity and tendency to inefficiency of the negotiations, which threatened the reaching of a substantively meaningful agreement. The analysis developed throughout the empirical chapters, and the

311 assessment presented below, suggests that the organization of the negotiation process achieved a high score in this respect.

The way in which the negotiation process was organized achieved important success in countering the tendency of parties to use time inefficiently, and in particular to backload the bargaining process until the last possible moment. By instilling dynamism in the textual development process (producing a new, more advanced, text at every session from AGBM 5) and the convening of negotiating arenas (convening new types of arenas to facilitate the progression from persuasion to debate to bargaining), as well as the use of symbolic markers and verbal exhortation (e.g. playing up AGBM 4 as the mid point in negotiations and resolute defence of the COP 3 deadline), the production team helped to generate momentum for the negotiation process that ensured it did not stagnate. The actions of the production team could not avoid the marathon, late night meetings of the last few days and nights of Kyoto - these were inevitable given the psychology of negotiations - but they did ensure that the workload for those last minute negotiations was not insurmountable.

The organization of the Kyoto Protocol negotiations also succeeded in managing the complexity of the many issues under discussion. It did so in several ways. Firstly, the way in which the negotiation process was organized achieved a balance between the necessary disaggregation of issues into (a minimum of) more specialized informal groups on the one hand; and the preservation of unity through the use of single negotiating texts, a single AGBM/CoW plenary and a continuous informal group structure on the other. In addition, Estrada’s forceful sequencing of bargaining and resolution of issues by concretizing them into text in the first week of COP 3 helped to avoid blockages in the negotiations resulting from the chicken and egg problem. Moreover, as discussed under information accessibility below, the production team’s filtering of issues and ideas coming into the negotiation process was critical to keeping the complexity of the agenda just about manageable.

The production team also took steps to overcome the complexity of many parties by convening parallel informal groups that were attended by fewer parties

312 - simply because most delegations did not have the resources to cover multiple groups - as well as providing space for highly political unofficial negotiations (e.g. on emission targets) to play out. A degree of procedural inequity was necessary to enhance efficiency; if all delegations had been able to attend all meetings, their advantages in terms of efficiency would have been cancelled out. However, while informal and unofficial groups were important elements of an effectively organized negotiation, it was critical that they did not sacrifice too much procedural equity and transparency, as discussed below.

Procedural equity Practical procedural equity in the Kyoto Protocol negotiations plainly did not live up to formal procedural equity. Despite the measures taken to promote such equity, the disadvantages faced by smaller, less well-resourced developing countries and EITs was a major theme throughout the empirical chapters. A medium score for the organization of the negotiation process in promoting practical procedural equity is thus appropriate. The disadvantages of developing countries and EITs in the multilateral negotiating arena, however, extend far beyond the climate change regime, which cannot be expected, by itself, to redress such an imbalance. Nevertheless, the regime did seek to mitigate that imbalance and to assuage the sense of exclusion felt by less well-resourced delegations. It did so at two levels: by upholding formal procedural rules and established practices designed to safeguard procedural equity', and by seeking to strengthen the negotiating capacity of developing countries and EITs through financial and logistical assistance. Most interviewees argued that the negotiations had been as fair as possible, within the constraints of wider inequalities. As one interviewee (AOACl) put it, “in and of themselves, they were as fair as you could make them”.

In terms of support for procedural rules and established practices, the production team sought to ensure that such rules (e.g. provision of interpretation, no-more-than-two-meetings practice), most of which are standard throughout the UN system, were fully implemented throughout most of the negotiation process. When it was necessary to relax the rules to increase efficiency, this was not done to such an extent as to seriously erode legitimacy. The production team was

313 especially careful when convening informal groups (e.g. delaying the formation of the non-groups until AGBM 6 and convening regular full plenary meetings, especially in Kyoto) so that smaller, and especially non-Anglophone, delegations unable to be effectively represented in informal groups could be appraised of, and could question, developments.

Particularly noteworthy is the fact that no limited membership negotiating groups were convened. The closed consultation groups organized at COP 3 never assumed a central role in the negotiation process with only limited bargaining taking place within them. All negotiating groups, therefore, were open-ended, that is, at least in principle, open to participation by all parties, and the final round of negotiations took place in a fully open plenary. Although the organization of the negotiation process could not prevent final bargaining over emission targets from taking place in closed, unofficial negotiations between just three parties, most interviewees accepted the political inevitability of this, and did not consider that it had seriously impacted on the legitimacy of the negotiations as a whole. Overall, interviewee responses suggested that most parties, including developing countries, accepted the need to sacrifice some procedural equity in the interests of efficiency at critical times in the negotiations, so long as this was done within a context of overall respect for procedural equity safeguards throughout the negotiation process as a whole.

A second means of alleviating broad imbalances in negotiating capacity and resources was through the provision of financial support for participation in the negotiations by delegates from developing countries and EITs, along with some limited logistical support for internal coordination among the 0-77 and China. While such support was critical to broadening participation by developing countries and EITs in the regime, it was widely acknowledged as merely scratching the surface and, by itself, inadequate for promoting more effective participation. Funding was often provided for the travel and subsistence of delegates who were then unable to participate effectively in the negotiations through lack of training in negotiating skills or insufficient understanding of the issues at stake. Several interviewees pointed to the need for more targeted

314 capacity-building, and the period since COP 3 has indeed seen some progress in this regard, as noted in Appendix C.

Transparency The Kyoto Protocol negotiations scored high in terms of transparency among the parties. As noted above, very few closed, limited membership groups were convened. Those that were, were not principally used as negotiating forums, while the final round of negotiations took place in a fully open forum. As with procedural equity, some loss of transparency was needed to enhance the efficiency of the negotiation process at certain critical points, and this was largely accepted by delegates, given that the transparency of the negotiation process as a whole was high. The relative transparency of the Kyoto Protocol negotiations compares with other recent negotiations, such as COP 4 (November, 1998; FCCC/CP, 1998b) and the Cartagena biosafety negotiations (ENB, 1999; Depledge, 2000), where the use of closed negotiating groups as bargaining forums and/or the paucity of open plenary meetings led to complaints over lack of transparency.

Transparency in terms of public scrutiny was not so high, earning a medium score. The admittance of non-state organizations was open and inclusive, all official documents were made freely available, and the non-state audience was allowed to observe the full proceedings of the AGBM up to its fifth session. After that, however, transparency deteriorated, with the closure of all informal groups, although some compensatory action was taken, including the regular open plenary meetings and the NGO briefings. The main exception was the final, open, round of negotiations, where Estrada specifically sought out public scrutiny to place added pressure on negotiators to reach agreement. Overall, little thought was given by the production team on how to harness the contribution of non-state organizations for the benefit of the negotiation process, for example, by exploiting their potential role in supplying information. The participation of such organizations was viewed more as a complication than as a help. The situation in the AGBM contrasted with a more inclusive approach in the SBSTA and AGI3, illustrating the random nature of NGO participation in the climate change regime at that time. Since Kyoto, however, the participation of NGOs has become more

315 regularized, and additional channels have been opened up for their input. These are discussed in Appendix C.

Information accessibility The performance of the organization of the negotiation process in terms of information accessibility justifies only a low to medium score, combining a high score on some dimensions with a very low one on others. The presence of the IPCC as a legitimate, independent forum for the construction, consideration and dissemination of consensual knowledge on the reality of climate change, through the SAR, was fundamental to the Kyoto Protocol negotiations. The process of collective learning centered on the SAR’s findings, conducted through the IPCC, the SBSTA and the COP, was critical to ensuring that the Protocol negotiations took place on the basis of a shared understanding that climate change was really a problem. It also ensured that the AGBM was insulated from the protracted and contentious political-scientific debates conducted within those bodies.

Where the organization of the negotiation process was less effective was in requesting input on specific issues, in considering and using input provided by, in particular, the IPCC (e.g. the technical papers), and in identifying the need for input on particular topics, such as sinks. This was partly due to the immaturity of the science-politics interface, including the intense politicization and lack of experience of the SBSTA at the time, as well as the limited technical expertise of the production team and the lower emphasis they placed on technical issues. More fundamentally, the scientific IPCC and the political climate change regime had yet to interlink their differing agendas and practices to open up effective channels for developing and communicating meaningful, timely information to negotiators. The result was that targeted information was simply not made available to the Kyoto Protocol negotiations.

However, by not promoting the input of information, the production team served to simplify the negotiation process, or at least to limit its potential complexity. Lack of collective information on the complexities associated with, in particular, carbon sinks, emissions trading and the other mechanisms, as well as conflicts with the Montreal Protocol, draped a veil of uncertainty over the

316 negotiations. This veil may have helped parties to reach an agreement, as they were unaware of, or were able to set aside, difficult details that would undoubtedly have raised new controversies and opportunities for delay"^\ In the case of the basic reality of the climate change threat, more information constructed through a collective learning process facilitated agreement by de- legitimizing scientific uncertainty as a justification for inaction. In contrast, in the case of the more detailed provisions of the Protocol, it was the veil of uncertainty hiding the complexities that probably enabled parties to agree.

The paucity of collective information, however, had important implications for procedural equity, while complicating the post-Kyoto negotiation process. Although the informal roundtables and IGO/NGO special events helped to reduce knowledge imbalance on some issues, overall, the process of obtaining, interpreting and applying information, except for the basic message of the reality of climate change in the SAR, remained principally at the national level. For developing countries and many EITs without strong domestic research and analytical capacity, this meant that the knowledge gap between them and most industrialized countries probably widened rather than narrowed during the Kyoto Protocol negotiations. The difficulties now experienced by the post-Kyoto negotiations in elaborating the details of the Protocol’s flexibility mechanisms can be, at least partly, attributed to the wide disparity in knowledge, understanding and analysis on these mechanisms, especially emissions trading, between industrialized and developing countries. As J. Gupta (1997:165) puts it, “as long as there is structural imbalance in knowledge generation, the country lagging behind will be on the defensive (and suspicious) in international negotiations”. There have been significant developments in the post-Kyoto negotiations in the accessibility of information; these are taken up in Appendix C.

Promotion of a cooperative approach This effectiveness criterion throws light on a disjuncture between the theoretical and the empirical. In the theoretical literature, promoting a cooperative approach is usually viewed as a critical dimension to securing a successful

Oberthiir and Ott (1999) make this point with reference to the CDM.

317 negotiation. In the Kyoto Protocol negotiations, however, the greatest fear of the production team was not a competitive approach as such, but rather that the negotiations would stagnate in (cooperative or competitive) persuasion and debate. Competitive hard bargaining was seen as necessary to getting a result and something to be encouraged.

Moreover, one of the most important challenges for the Kyoto Protocol negotiations was the threat of procedural blockage of the adoption of the Protocol by obstructionist parties appealing to the consensus imperative, along with the tendency of such parties to engage in procedural opportunism to delay the negotiations. The presence of obstructionist parties, supported by like-minded non-state organizations and scientists, who had little intention themselves of engaging in cooperation or joint problem-solving, meant that a harder competitive approach was needed on the part of the production team and other progressive forces to overcome these obstructionist tendencies. The formal recognition of the Geneva Ministerial Declaration, for example, was a clear case of a competitive approach - objections to it were simply drowned out by the applause of its supporters - yet it marked a critical positive turning point in the negotiation process in its demonstration that the process would not be held hostage to a small minority of obstructionists and that the progressive majority could win. It was such a strong, competitive approach - which Estrada frequently displayed - that prevented the blocking of the negotiations.

This is not to say that promoting a more cooperative approach among parties was not an important task for the organization of the negotiation process. Mistrust, poor communication and lack of understanding of the concerns of other parties were major barriers to the negotiations. Much of their pathology and irrationality, such as the tendency to last minute negotiation by exhaustion, was due to their perceived competitive nature. The empirical chapters revealed several steps taken by the production team to encourage a more cooperative approach through better communication and more in-depth understanding among parties of each other’s concerns. These included Estrada’s ‘iron-fist-in-a-velvet-glove’ approach, where he sought to promote a sense of cooperation and community among delegates to the AGBM through his chairing style, but combined this with

318 a combative manner relative to those he perceived to be obstructing the process. More concretely, the inter-sessional Expanded Bureau meetings gave delegates the opportunity to make friends outside the meeting room as well as discuss their concerns more fully inside. The fact that the integrative idea for the CDM emerged from informal joint problem-solving during inter-sessional consultations (albeit those organized by the Japanese government rather than the production team) illustrates the potential importance of such events. The roundtables were similarly helpful in promoting better communication and understanding, although delegates frequently retreated to a more competitive approach when back in the formal arenas, while the unofficial exchanges that took place on the margins of the official process often, but not always, facilitated the development of better working relationships among parties.

Overall, the Kyoto Protocol negotiation process can be given a medium score on the promotion of a cooperative approach. It was certainly not a clear case of cooperative joint problem solving; most commentators have described COP 3 more in terms of political horse-trading or hardball negotiations (e.g. Grubb et al, 1999; Leggett, 1999; Oberthur and Ott, 1999). However, such a generally competitive approach was largely inevitable given the high stakes of the negotiations, and was indeed necessary relative to obstructionist forces. Efforts to instill a more cooperative atmosphere among delegates, especially a sense of community within the AGBM, as summarized above, probably helped to attenuate the worst effects of competition, although it is difficult to be precise in this regard. It appears that organizational elements could only have a limited impact in shaping the degree of cooperation or competition in the approaches of parties.

Leadership, skill and energy The organization of the Kyoto Protocol negotiation process merits a high score in terms of the leadership and skill and energy that it provided. Estrada, in particular, was able to supply the strong process-oriented leadership necessary to overcome the challenges facing the negotiations. He did so on a continuous basis throughout the process but particularly so at critical moments, notably, the skillful production of the Chairman’s Text and brave decision-making on the final night. Estrada’s ability to exert strong leadership was partly due to his personality,

319 including assertiveness, sense of mission and good personal management. There were also other dimensions to Estrada’s chairmanship, including in his background and experience, that facilitated his effective leadership.

Most importantly, the Kyoto Protocol 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. In addition, the Protocol negotiations suggest that, to be effective, presiding officers should have experience of the relevant regime, in this case climate change, its political complexities and sensitivities, and also come from a diplomatic background, and thus be trained in politics and procedural matters. The importance of diplomatic training is frequently underestimated in multilateral negotiations, where the trend in participation is towards specialists (e.g. from environment ministries) rather than diplomats. Multilateral negotiation and chairmanship, however, are skills like any other, where those with training and experience are likely to perform better than those without (Antrim, 1994). Moreover, the experience of the Kyoto Protocol negotiations indicates that, in a politically sensitive negotiation with an important north-south dimension, a developing country presiding officer is more likely to be able to exert strong leadership than one from an industrialized country.

However, with the exception of the critical first factor relating to a single continuous leader, the extent to which such factors, including personality, background and 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 among regional groups without, for example, the involvement of the secretariat or another objective party with the overall interests of the process at heart. Although it would be wrong to say that personal qualities and qualifications are not taken into account in the election of presiding officers, they can play second fiddle to regional politics. Unfortunately, therefore, despite its central importance in the organization of a negotiation process, the presence of an effective presiding officer possessing the right background and experience cannot always be assured.

320 The problem is exacerbated in the case of COP Presidents, over whose nationality and identity there is almost no collective control. The typical lack of experience of ministerial level COP Presidents suggests that these should not be expected to play an active role in chairing or organizing the negotiation process, and should instead focus their activities on ceremonial chairing and, to the extent that this is helpful, on behind the scenes, unofficial consultations on specific issues. In this sense, the passive role assumed by the Japanese presidency in the official negotiating arena was complimentary and beneficial to the more active leadership exercised by Estrada. The Japanese gave Estrada a free rein in the conduct of proceedings and organization of the negotiations, while focusing their efforts on forging deals through side payments and political pressure outside of the official negotiations.

The secretariat was able to provide process-oriented skill and energy to the Kyoto Protocol negotiations by supporting Estrada’s leadership, compensating for the COP Presidency’s shortcomings, and devising its own strategic means of organizing the negotiation process. Importantly, the discrete and sensitive manner in which the secretariat generally carried out its tasks, making judicious use of the veil of legitimacy, helped to build up confidence in the integrity of the negotiation process. Several factors were instrumental to enabling the secretariat to provide such skill and energy, including the fact that a single team was responsible for the negotiations, allowing the process to be planned more strategically and issues to be dealt with in a more coherent manner; the locus of expertise of that AGBM team in the strategic, procedural and political field, so that it could give insightful advice to Estrada on how to manage the negotiations; the drafting skills of the team; and the personal qualities of senior staff, notably Richard Kinley and Michael Zammit Cutajar.

Where the AGBM team could have scored better was in its technical support to Estrada and the negotiations. A more balanced mix between technical and strategic/procedural expertise, or else more internal coordination within the secretariat, would likely have been beneficial. It should be noted that secretariat support to the negotiation process through the provision of skill and energy is more open to policy manipulation than the leadership of presiding officers, given

321 that specific skills and experience, and indeed mandates, can be sought out when recruiting staff (which is also subject to political considerations but much less so) or revising the programme budget.

The other source of leadership and skill and energy considered in the empirical chapters was that ofministers. Overall, the presence of ministers and arrangements made for their participation at COP 3 facilitated their provision of leadership, skill and energy. Key OECD ministers were able to participate in consultation groups and, most importantly, engage in bargaining behind the scenes. The main negotiation process in the CoW plenary and informal groups, however, continued to be conducted by officials, given that the disparity in level of participation, with most developing countries still represented at official level, raised obstacles to engaging ministers more fully. Where the organization of the negotiation process was less successful was in occupying and making use of those ministers not involved in the final bargaining, notably those from developing countries, who typically confined their activities in Kyoto to the traditional formal debate. The ambiguous experience of the ministerial roundtable at COP 2 illustrates the challenges faced in convening meaningful ministerial events. These are further highlighted by cases of ministerial involvement post-Kyoto, as discussed in Appendix C.

CROSS-CUTTING THEMES

The contingent and the stable A key recurrent theme in the thesis has been the central role of the production team in the effective organization of the negotiation process. In many cases, the achievement of the effectiveness criteria was promoted not by the stable procedural component of the climate change regime, whose formal procedural rules were often skeletal and focused almost exclusively on maximizing procedural equity and transparency among parties. Rather, effectiveness was achieved by the actions of the production team, especially Estrada, in interpreting and improvising around those rules, for example, to ensure a balance with efficiency, or to overcome procedural opportunism. The relationship between Estrada and the secretariat was important in this regard. The complimentary

322 strengths of Estrada on the one hand (forcefulness, big picture political awareness), and the AGBM team on the other (discretion, attention to detail, drafting skills), helped to maximize the individual and combined effectiveness of the members of the production team.

The organization of the negotiation process thus combined the contingent, that is, the actions of the production team, with the stable, that is, the formal procedural rules and institutional arrangements of the regime’s procedural component. The paucity or generality of the stable provided the production team with considerable room for manoeuvre in most areas of the organization of the negotiation process. In some cases, such as the composition of the Expanded Bureau where individuals were so important, and in the production of the Chairman’s text where the matching of content, approach and timing with the specific needs of the negotiation was critical, such room for manoeuvre was helpful, given that the production team possessed the skill and energy necessary to harness this flexibility in a strategic way.

In other cases, however, the absence of formal procedural rules was more problematic, generating instability and uncertainty. A good example is the case of NGOs, where their access to, and ability to participate in, the negotiations varied greatly throughout the negotiation process, as well as between the subsidiary bodies, depending on the personal views of the presiding officer. Another important example is that of the voting rule. While chapter 5 concluded that the absence of any such rule might actually have been an advantage, this was only in the context of Estrada’s effective leadership. The future of the climate change regime, however, cannot always rely on the presence of such a strong presiding officer and would benefit from the codification of decision-making rules, even if they are rarely used, that do not depend on the vagaries of any particular individual.

Nevertheless, the flexibility needed to adapt to different negotiating circumstances means that most organizational elements (the structure of informal groups, the progression of texts, the management of time) cannot be codified into the procedural component of the regime. Organizational decision-making will

323 thus remain largely dependent on the improvised actions of the production team, rather than on stable procedural rules. This places an added premium on the capacity of the production team to manage the negotiation process effectively, and especially on the secretariat, given that it is not always possible to exert strong collective control over the personality, background and experience of presiding officers.

The importance of learning A further cross-cutting theme, although more often implicit than explicit, has been the apparent disjuncture between the uniqueness of climate change as a negotiating issue on the one hand and, on the other, the rather standard procedural rules and institutional arrangements, derived from the wider UN system, which structured the procedural component of the climate change regime and thus underlay the organization of the Kyoto Protocol negotiation process. The traditional procedural rules and institutions often provided a poor foundation for addressing the negotiating challenges posed by climate change. Digestible and responsive scientific input, for example, was needed during the Kyoto Protocol negotiation process given the uncertainty involved on many issues. There were few effective channels in place, however, for providing such input, the case of sinks providing the most obvious example. Another interesting disjuncture arose around the participation of non-state organizations. The great interest in global environmental issues on the part of a wide variety of stakeholders poses both challenges and opportunities for multilateral environmental negotiations. As noted in chapter 8, this was recognized in Agenda 21, which spoke of a new partnership with a range of major groups. The procedural rules of the climate change regime, however, are much more conservative in their treatment of non state organizations. The production team in turn interpreted these rules in a minimalist manner, so that the vision of major group involvement articulated in Agenda 21 was completely absent from the Kyoto Protocol negotiations.

Such apparent disjunctures have led some analysts to call for a whole new approach to global environmental negotiations that could better meet the specific negotiating challenges of global environmental problems (e.g. Kolb and Faure, 1994; Susskind, 1994). A sea change in the conduct of global environmental

324 negotiations, however, would be neither practicable nor desirable, and indeed few concrete ideas have emerged as to what a radically new negotiating approach might look like. Global environmental negotiations are, first and foremost, large multilateral negotiations, for which accepted procedural rules and established practices have gradually developed over several decades within the UN system. This reservoir of accepted rules and practices must not be jettisoned for fear of losing the trust of weaker states, as well as undermining the stable expectations of negotiating parties as to how multilateral negotiations are conducted, such stable expectations being important contributors to efficient negotiation. Moreover, apparent irrationalities associated with traditional modes of negotiation, such as posturing in plenary meetings and the slow development of texts, have actually been shown by the thesis to be necessary components of an overall effective negotiation (see chapters 6, 9). What is needed, therefore, to respond to the new challenges of climate change and other global environmental problems is not radical change, but gradual learning (see P. Haas and E. B. Haas, 1995).

The climate change regime, through the secretariat, has in fact shown itself to be relatively open to organizational learning aimed at better meeting the unique challenges of negotiations on climate change. The Executive Secretary, for example, prepared recommendations on ways of improving the negotiation process in the wake of complaints over lack of transparency and late night negotiations at COP 4 (FCCC/SBI, 1999). Significant positive developments in the organization of the negotiation process since Kyoto are discussed in Appendix C, including the promotion of capacity-building and more open channels for scientific input and NOG participation. Inevitably, however, the learning process is a slow one. Parties themselves tend to be resistant to change, with mistrust a particularly important factor. Developing countries, for example, are often reluctant to consider alternatives outside the status quo, for fear of losing out on procedural equity and transparency safeguards. The resistance to abolishing the traditional formal ministerial debate, despite its almost universally acknowledged waste of resources, pays testimony to this. It is also the case that vested interests and symbolism have built up around certain organizational elements, such as the provision of interpretation, which increase the barriers to change, while procedural

325 opportunism remains a major obstacle. For all these reasons, innovation must be combined with caution.

Continuing with the theme of learning, an important step towards more effectively organized negotiations that better meet the challenges posed by global environmental problems would be to further develop the role of the secretariat as the institutional memory of a regime, recording and assessing experiences in the organization of negotiations, applying these experiences to new negotiation rounds, and communicating the lessons learned to new staff so that they are not forgotten. As Keohane and Nye (1977/89) note, organizations (and indeed regimes) cannot learn unless they have in place an institutional memory.

Moreover, as part of this learning process, different secretariats should seek to learn from each other’s experiences in the organization of negotiations (see Sandford, 1994). By way of example, in mid-1998, the CBD secretariat contacted the UNFCCC secretariat to ask about the provisions made for the technical review of the Kyoto Protocol and its opening for signature. The CBD was then in the final stages of negotiation of what became the Cartagena Biosafety Protocol. In subsequent discussions between the two secretariats, it became clear that both teams would have found it very useful to exchange views on their experiences in the organization of their respective negotiations, which faced similar challenges and were conducted on a similar time scale, yet without any communication between them. Although academic and policy interest in linkages between environmental regimes and in global environmental governance is growing (e.g. UNEP, 2001a, b; UNU, 2001), in particular in the run-up to the 2002 World Summit on Sustainable Development, such interest has focused largely on substantive issues (e.g. ecological linkages, overlaps/conflicts in commitments), neglecting the potential for more procedural linkages, such as improving communication between secretariats on how to perform better in their most basic role of supporting negotiations.

OVERALL ASSESSMENT Overall, the effectiveness of the organization of the Kyoto Protocol negotiations, as presented in the empirical chapters of this thesis, can be described

326 as relatively high. It was certainly not perfect, with room for improvement in terms of the participation of NGOs, the communication of information and the engagement of ministers, for example. Moreover, the way in which the negotiations were organized could not overcome the more irrational dimensions to multilateral negotiations arising from their inherently competitive nature, such as negotiation by exhaustion. Nevertheless, especially when compared (albeit briefly in the empirical chapters) to other recent multilateral negotiations, the organization of the Kyoto Protocol negotiation process was relatively effective, contributing to the success of those negotiations. The account of the post-Kyoto negotiations leading to COP 6 part I presented in Appendix C confirms this assessment.

The six effectiveness criteria were helpful in framing the analysis of the organization of the Kyoto Protocol negotiation process, and could be similarly used to assess other negotiations. The criterion promoting a cooperative approach, however, might need some refinement in order to reflect the inevitability, and indeed value, of a competitive approach in the context of a highly political negotiation where obstructionists are present, as well as the central importance of promoting bargaining. A more in-depth and detailed study of exchanges among parties would also be necessary to achieve a more rigorous comparison between instances of (greater or lesser) competition or cooperation'^^ In addition, the criteria procedural equity and transparency were found to raise similar issues, and there may be value in combining these in a future analysis.

Looking ahead to further work on this topic, an important question is the extent to which the effectiveness criteria would be equally applicable to other multilateral negotiations, including those outside the environmental arena. Certainly, as considered in chapter 2, multilateral negotiations share common characteristics and challenges, for example, how to balance demands for procedural equity/transparency versus the need for efficiency and how to promote a more cooperative approach, while recognizing the value of competition in some

For an example of a study of cooperative and competitive approaches in a global environmental negotiation, see Wagner (1999).

327 contexts. Overall, all six criteria would appear applicable to multilateral negotiations in general. As well as the criteria mentioned above, leadership and skill and energy are always necessary in a negotiation, as is sound information on which to take a decision.

However, each negotiation - including different environmental negotiations - will face its own particular circumstances that will generate specific challenges. The post-Kyoto negotiations, for example, because they were addressing the details of the Protocol’s provisions, some of them unprecedented, had a much greater need for the input of technical information and analysis. In contrast, negotiations under the World Trade Organization on long-standing trade issues may not require such detailed scientific and technical input. Similarly, some negotiations may traditionally be held in secret and face few demands for public scrutiny (e.g. Lang, 1989b), whereas others (such as those without a north-south dimension) may not face pronounced competitive tendencies, so that the promotion of a cooperative approach is less important (e.g. Van Gorkom, 1989)*''^. Still others may be blessed with strong process-oriented leadership from among the negotiating parties (although this is rare), rendering leadership and skill and energy on the part of the production team less imperative. The six criteria, while they are all applicable, may therefore hold different weights in different negotiating contexts.

Following on from the above, given that each negotiation will face its own specific challenges, it will not be possible to apply a single organizational formula to all negotiations. As Young (1998:284) warns, “we should never expect to solve complex problems through applications of simple recipes”. This does not mean that no organizational lessons can be drawn from the experiences of individual negotiations, 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.

The examples refer to negotiations on the Second Review Conference of the 1972 Biological Weapons Convention and on nuclear accidents under the International Atomic Energy Agency, respectively.

328 Nine key lessons To conclude, it is possible to identify nine key lessons on the effectiveness of the organization of negotiations that can be drawn from the thesis, which would be broadly applicable to any multilateral negotiation:

1. Unity and continuity are important.A single presiding officer, a single negotiating body and a single secretariat team should have overall responsibility for the negotiation process throughout its duration;

2. The presiding officer should be able to supply strong process-oriented leadership. A diplomatic background and longstanding negotiating experience in the particular regime, as well as developing country nationality, are factors most likely to facilitate this;

3. Competent support from the secretariat is vital. The secretariat should be able to compensate for any chairing weaknesses in presiding officers, generate trust in the process by respecting the veil of legtimacy, and have a balance of procedural and technical expertise that enables it to formulate strategic means of organizing the negotiation process, while also providing effective substantive support.

4. Secure a balance between procedural equity/transparency and efficiency. Maximizing the chances of reaching agreement depends on the application of most of the most important procedural rules and established practices most of the time, but knowing when the efficiency benefits of relaxing the rules would outweigh the legitimacy benefits of applying them. Closed, limited membership groups convened for bargaining should only be formed when absolutely necessary, and should be combined with regular open plenary meetings;

5. Promote bargaining. The organization of the negotiation process should resolutely counter the tendency of delegates to backload negotiations and stagnate in persuasion and debate. Time in the early phases of negotiations should be used wisely to ensure that the scene is set for effective bargaining in the finale;

329 6. Overcome procedural obstruction. Where obstructionists are present, attempts at procedural opportunism should be strongly resisted, while respecting legitimate procedural complaints;

7. Provide appropriate forums and channels to facilitate collective learning. The organization of the negotiation process should ensure that all parties have access to shared information on issues under negotiation to avoid a situation where some proposals are rejected purely on the basis of mistrust induced by ignorance. The process should not, however, be overloaded with information and ideas that would increase its complexity beyond that which is necessary;

8. Encourage cooperation, but without naivety. A more cooperative atmosphere can be promoted through skillful chairing and by providing opportunities for informal contacts among delegates, including outside the formal sessions. This should not, however, be at the expense of promoting bargaining or overcoming procedural opportunism, which may require a more competitive approach; and

9. Learn, adapt and innovate with caution.In order to improve the organization of future negotiations, it is important to build up institutional memory within the secretariat of strategies that have, and have not, worked, also drawing on experiences from other regimes, while remembering that each negotiation is unique and will have its own specific needs. The above lessons should be adapted to those specific needs. Regimes should be open to organizational innovation to deal with changing circumstances, but innovative ideas must be implemented with caution.

The main message of the thesis is a simple one: negotiations can be organized more or less well, and this can increase or reduce the chances of reaching agreement on a substantively meaningful outcome. The organization of the negotiation process may be only one ingredient among the many factors - power, interests, science, geopolitics, public opinion, individual personalities, history, serendipity - that together make up the performance of a negotiation and lead it to

330 success, or not. It is, however, one of the few factors that is directly open to collective policy manipulation. Although the best organized process in the world cannot resuscitate a doomed negotiation if political will is lacking, the way in which a negotiation process is organized can make the difference between success and failure in a complex negotiation where the overwhelming majority of parties genuinely do want to reach a substantively meaningful agreement. The thesis has thus sought to promote a better understanding of the organization of multilateral negotiations, in order to ensure that opportunities to advance global governance are reaped to the maximum extent and are not thwarted on mere organizational grounds.

331 APPENDIX A

LIST OF INTERVIEWEES

Code Region/negotiating coalition Date^^“ API Africa September 2000 AFSECl Africa, now with secretariat September 2000 AO AGI AOSIS, also with academic NGO London, June 2000 A0AC2 AOSIS, also with academic NGO London, October 2000 AOSISl AOSIS June 2000 A0SIS2 AOSIS June 2000 ASl Asia June 2000 AS2 Asia September 2000 ASSECl Asia, now with secretariat September 2000 ASSEC2 Asia, now with secretariat September 2000 EITl Economy in transition September 2000 EUl EU June 2000 EU2 EU September 2000 EU3 EU September 2000 EUSECl EU, now with secretariat September 2000 EUSEC2 EU, now with secretariat September 2000 J1 JUSSCANNZ June 2000 J2 JUSSCANNZ September 2000 J3 JUSSCANNZ June 2000 LAI Latin America September 2000 ACNGOl Academic NGO June 2000 ACNG02 Academic NGO June 2000 BINGO 1 Business and industry NGO June 2000 ENGOl Environment NGO September 2000 EN G 0 2 Environment NGO By e-mail, October 2000 Watson Dr. Robert Watson, IPCC September 2000 Chairman Estrada Ambassador Raul Estrada-Oyuela September 2000 SECl Senior secretariat official September 2000 SEC2 Senior secretariat official September 2000

During subsidiary body sessions, unless otherwise specified.

332 APPENDIX B

INTERVIEW QUESTIONS

The questions below formed the basis for the 29 interviews conducted for this thesis. They were used as a loose structure, however, rather than as a formal questionnaire. Not all questions were applicable to all interviewees (many, for example, had not attended Expanded bureau meetings), and some questions had to be rephrased when interviewing representatives of NGOs, and IPCC and secretariat officials. Moreover, some interviewees showed a special interest in a particular issue, and the interview therefore concentrated on that area.

Barriers to reaching agreement

• What do you think were the two main barriers to reaching agreement during the Kyoto Protocol negotiation process?

• How difficult do you think the Kyoto Protocol negotiations were, compared to other negotiations you have been involved in? Please explain your answer.

Procedures

The climate change Convention has no agreed voting rule for the adoption of protocols.

• Do you think this affected the Kyoto Protocol negotiations? If so, how?

Negotiating bodies

From AGBM 7, the protocol negotiations took place mostly in four informal “non groups”. At AGBM 8 and, especially, COP-3, many informal contact groups were also convened.

• Do you think an appropriate balance was struck during the Protocol negotiations between formal plenary meetings and informal groups?

• Do you believe there were too many informal groups, or was the number about right, bearing in mind the complexity of the issue?

• Did you or your delegation face any of the following difficulties in handling the many informal groups meeting during COP 3: (a) Impossibility of attending so many parallel informal groups; (b) No interpretation services; (c) Lack of information on the time or venue of meetings. How do you think these difficulties could be addressed in the future?

Informal “roundtable discussions” were held at both AGBM 3 and 4 on policies and measures and QELROs and, at AGBM 4 only, on possible impacts on developing countries of new commitments by Annex I Parties. A further roundtable on differentiation was held at AGBM 5.

333 • Did you or your delegation attend these roundtables? What contribution do you think they made to the protocol negotiations?

Chairman^s informal consultations

During the inter-sessional period between AGBM 6 and 7, Ambassador Estrada convened two informal consultations, on strengthening commitments in Articles 4.2(a) and (b) and continuing to advance the implementation o f Article 4.1.

• What contribution do you believe these consultations made to the negotiation process? Could they have been more effective and if so, how?

At AGBM 7 and 8, Ambassador Estrada convened regular meetings of the so- called “Expanded Bureau ”.

• How would you describe the role of the Expanded Bureau in the negotiations? Do you consider that meetings of the Extended Bureau were, in general, helpful? Do you think the Extended Bureau could have been a more effective body in promoting agreement? If so, how?

The Government of Japan convened three sets of informal consultations during 7997.

• How useful were these consultations? How could they have been more effective?

Timing

The Kyoto Protocol negotiation process took place over 31 months, with 54 days official negotiating time, and finished some 18 hours late, following round-the- clock negotiations.

• Do you think this amount of time was too much, not enough, or about right? Do you think more of the Protocol’s “unfinished business” could have been resolved with more time?

• What impact, if any, do you think the COP 3 deadline had on the negotiation process? Did you or your delegation treat this deadline as final?

• Did exhaustion affect your delegation’s negotiating ability? Do you think late night, last minute negotiations are inevitable? Could they be avoided?

Communication of scientific input

The IPCC issued its Second Assessment Report during the protocol negotiation process, as well as four technical papers prepared at the request of the SBSTA and AGBM.

334 How would you describe the impact of the Second Assessment Report on the protocol negotiations? How would you describe the impact of the technical papers?

Did you consider the IPCC to be an authoritative source of scientific input?

Overall, do you feel you or your delegation were provided with sufficient scientific input during the protocol negotiations? Do you have any suggestions for improving the input of scientific information to climate change negotiators?

Support to non-Annex I Parties

In the climate change regime, one delegate per eligible non-Annex I Party usually receives funding to attend sessions of the subsidiary bodies, and two from small island and least developed states fo r sessions o f the COP.

• Do you think this support for non-Annex I Party participation was sufficient during the protocol negotiations? Please explain your answer. Do you have any views on how support for non-Annex I Party participation could be enhanced?

Arrangements for ministerial participation

A high level segment including ministerial participation was held at both COP 2 and 3. In addition to the traditional “formal debate ” held at both these COPs, a “ministerial roundtable ” was organized at COP-2.

• In your opinion, how useful was the traditional “formal debate” as a channel for ministerial participation? How useful was the “ministerial roundtable”?

• Overall, what contribution do you think ministers made to the Protocol negotiations, and how important was this contribution?

Non-governmental organization (NGO) observers

The climate change regime allows NGOs to observe open plenary meetings and make statements at the discretion of the Chairman. NGOs may also organize special events and exhibits, as well as lobby delegates “in the corridors”.

• Do you feel these channels for NGO participation were sufficient during the protocol negotiations? Please explain your answer,

• How much importance did you or your delegation attach to NGO plenary statements? How useful did you consider these to be?

• How often did you or a member of your delegation attend NGO special events? How useful did you consider these to be?

335 AGBM Bureau

• What did you consider the role of the AGBM Bureau to be in the negotiations? To what extent did you communicate with the representative of your regional group on the Bureau?

The AGBM Chairman and COP Presidents

• Ambassador Estrada has been described as the “hero of Kyoto”.

• What are your reactions to the above statement? How would you describe Ambassador Estrada’s chairing style? How do you think this style impacted on the negotiations? Do you believe he was neutral in his chairing?

• Ambassador Estrada’s “Chairman’s text” was presented at AGBM 8. How useful was this Chairman’s text in the negotiation process? Do you recall any specific aspects that were particularly helpful or unhelpful?

• How would you describe the roles of the Presidents of COP 2 and COP 3 in the negotiation process?

The secretariat

• How would you describe the role of the secretariat in the protocol negotiations? Do you feel the secretariat was neutral and objective in carrying out its tasks?

• Were the logistical arrangements for the negotiations satisfactory?

• Do you feel the move to Bonn affected the negotiations in any way?

• How effective, overall, do you consider the climate change secretariat was during protocol negotiations?

Overall comments

• Overall, do you think the Kyoto Protocol negotiation process was legitimate? Please explain your answer.

• Overall, how transparent do you think the Kyoto Protocol negotiation process was? Please explain your answer.

• Overall, do you think the Kyoto Protocol negotiation process was fair? Please explain your answer.

• Do you have any further comments on the organization of the Protocol negotiation process?

336 APPENDIX C

THE ORGANIZATION OF THE POST-KYOTO NEGOTIATIONS

"... the negotiations could still have succeeded had the final process itself been organized differently” (Grubb and Yamin, 2001:267).

This appendix outlines some of the key organizational developments in the climate change regime since COP 3, which serve to highlight both the strengths and weaknesses of the organization of the Kyoto Protocol negotiations discussed in the thesis. The post-Kyoto negotiation process faced similar challenges to the negotiations on the Kyoto Protocol itself, albeit with added layers of complexity (Depledge, 2001). While some positive organizational developments were implemented during the post-Kyoto negotiations, overall, their organization would not score nearly so high in an assessment of its effectiveness, with several commentators pointing to poor organization as a contributing factor to the failure of the post-Kyoto negotiations at COP 6 part I in The Hague (November, 2000) (Ott, 2001; Grubb and Yamin, 2000).

A major difference between the Kyoto Protocol and post-Kyôto negotiations was the much greater disaggregation of the latter. The post-Kyoto negotiations were fragmented under three bodies (the SBSTA, SBI, and joint working group on compliance) involving, throughout the negotiation process, a total of six presiding officers, leading to “a really divided process” (Jl). The final negotiations at COP 6 part I were handed over to the Dutch COP President Jan Pronk, the seventh presiding officer, who had no time to develop strong working relationships with, or the confidence of, parties. Such disaggregation was also in evidence in the secretariat, with each issue supported by an individual team, without an effective, overarching structure. This fragmentation hampered the rise of strong process- oriented leadership so that the negotiations lacked an overall sense of direction.

The absence of leadership helps to explain the failure of the organization of the post-Kyoto negotiations to counter the procrastinating tendencies of parties. On many issues, notably the flexibility mechanisms, time prior to The Hague was largely "frittered away” (Jacoby and Reiner, 2001:301), with little sense of dynamic progression from persuasion and debate towards serious bargaining (Grubb and Yamin, 2001). The textual development process, especially on the flexibility mechanisms, stagnated dangerously, with nearly 100 pages of complex text, which had hardly been subject to any pruning by the production team, going forward to COP 6. While the six-month rule had placed a halt on the proposal of substantially new text long before COP 3 in the Kyoto Protocol negotiations, the post-Kyoto process did not have such a deadline, and voluminous text continued to be submitted by parties, even at The Hague (Grubb and Yamin, 2001). Although texts on other issues were more manageable, no single document of any kind was prepared during the three years negotiation process to consider all the issues as a whole. Nor were the various texts subject to serious review to evaluate their coherence and consistency.

337 The period between Kyoto and The Hague did see some positive developments in the organization of negotiations. Chief among these was the adoption of decision 18/CP.4 (FCCC/CP, 1998b), resulting from the consultation process on NGO involvement referred to in chapter 8, which regularized procedures for admitting NGOs in informal groups, making these less reliant on the personal whims of presidingofficersIn addition, NGOs are increasingly permitted to intervene in plenary on specific issues, and presiding officers now meet with representatives of the main constituencies at each session. More channels have also opened up for NGOs to input to the process. A full contact group meeting, for example, was devoted to NGO presentations on the mechanisms at negotiating sessions in the run-up to COP 6, and the secretariat now contracts ENB to report on special events, providing contact details for more information.

Recognition has also grown of the importance of targeted capacity-building for developing countries and EITs, with a view to enhancing practical procedural equity (FCCC, 2000). Negotiations are underway to develop a capacity building framework at the intergovernmental level (see decisions 10/CP.5 and 11/CP.5; FCCC/CP, 1999b)'^\ while there has also been a proliferation in capacity-building activities on the margins of the climate change regime (e.g. J. Gupta, 2001).

The experience at COP 5 with the involvement of ministers was a largely positive one, although its contribution to the negotiation process was ambiguous. In contrast with the closed roundtable at COP 2, an “informal exchange of views” took place to which all ministers were invited, resulting in a summary of discussions and a decision (1/CP.5) on advancing the post-Kyoto negotiations (see FCCC/CP, 1999a, b). While this event was more inclusive, transparent, and generated a ‘feel good factor’, it did not have the galvanizing effect of the ministerial segment at COP 2, where a confrontational political drama over the Geneva Ministerial Declaration led to a victory over obstructionists that paved the way for success in Kyoto. Delegates at COP 5 indulged in cooperative debate and politely agreed to disagree, but the result was that latent controversies were simply postponed to COP 6 where they erupted with damaging force.

Positive developments emerged in the communication of scientific input, particularly in the relationship between the regime and the IPCC. The production of the IPCC Special Report on Land-use, Land-use Change and Forestry^^^ to inform the SBSTA’s negotiations on carbon sinks was a landmark in this regard. The Special Report was prepared through a constructive, iterative process between the SBSTA and the IPCC, with the SBSTA providing relatively detailed guidance on its desired content. The final Report was communicated to parties in a much more interactive way than the technical papers were to the AGBM. IPCC officers made a presentation to the SBSTA and responded to questions during a four hour official meeting, thereby helping to promote deeper understanding of the Report, and to integrate it into the debates of the SBSTA.

Although presiding officers, and one-third of parties, can still decide to exclude NGOs. Since this appendix was drafted, agreement was reaching at COP 6 part II on decisions to promote capacity-building (see FCCC/CP, 2001a and b). IPCC (2000).

338 Despite a stronger collective learning process, the post-Kyoto negotiations on carbon sinks were still overwhelmingly politically driven. Many interviewees noted the greater access to information they now enjoy (e.g. ASl; AFSECl). Such information does not, however, seem to have made negotiations any easier. On the contrary, lifting the veil of uncertainty appeared to paralyze, rather than galvanize, the negotiation process at COP 6 part I, with differences over carbon sinks held largely responsible for the failure of the negotiations (ENB, 2000b).

The period between COP 3 and COP 6 thus saw both positive and negative organizational developments. The organization of negotiations at COP 6 itself, however, arguably constrained rather than maximized opportunities for reaching agreement. In terms of negotiating arenas, the subsidiary bodies continued to meet in the first week, conveying the psychological message that the final phase of bargaining would not start until after they had closed. In the second week, an ‘informal high level plenary’ and four ‘ministerial consultation groups’ were convened. These new negotiating arenas were based on a four-way structuring of the negotiating issues, which, while logical, had not yet been employed in the process. Negotiators therefore had to get used to a new structure and set of negotiating arenas only five days before the deadline. Moreover, a ministerial level ‘friends of the chair’ group did not meet until the last day of negotiations, partly due to difficulty in securing the agreement of parties - especially developing countries - for the convening of such a group.

A key organizational downfall of COP 6 was its failure to achieve a balance between procedural equity and transparency on the one hand, and efficiency on the other. Queries over the negotiating arenas to be convened in the second week led to concerns among developing countries over potential loss of transparency. The COP President’s desire to reassure caused him to swing too far towards transparency, which then paradoxically forced the key players behind closed doors to try to strike a deal on the whole package in the most untransparent way possible (Grubb and Yamin, 2001). In this regard, the President faced tough procedural opportunism by OPEC, made particularly effective by Nigeria’s chairmanship of the G-77, in the form of unrealistic demands for full transparency. In contrast to the flexibility shown by the G-77 and China in Kyoto, organizational objections sorely hampered the negotiations in The Hague.

The first official single negotiating text of the whole three year negotiation process, Jan Pronk’s ‘note by the President’, was released on Thursday evening of week two. The President’s intention was to agree a political compromise based on his paper, and translate this into legal text afterwards, a technique familiar to EU Council meetings but unprecedented in the climate change regime (Grubb and Yamin, 2001). Many parties were simply unsure as to how to respond to this new type of text. Many were also concerned that it was a take-it-or-leave-it imposition, despite the President’s assurances to the contrary (see Ott, 2001).

Negotiations in The Hague were unusual in their strong ministerial focus. Ministers were expected to participate in the informal high-level plenary, ministerial co-chairs were appointed to head the consultation groups and the vital role of ministers was continuously talked up. Most developing countries.

339 however, simply did not have ministers present who could negotiate in a meaningful manner. The ministerial focus also led to an unproductive clash in negotiating styles in the ministerial consultation groups. They were chaired by ministers who did not understand the texts and wanted a political discussion, yet most participants were officials, who wanted to negotiate on the texts (Grubb and Yamin, 2001).

The COP President faced real challenges in exerting effective leadership. Although Pronk was familiar with the UN system, he had little direct experience of the very different climate change context, finding it difficult to gauge the political dynamics and overcome procedural opportunism. His presidency also confirms the obstacles faced by industrialized country presiding officers. Although the G-77 and China recognized Pronk as a sympathetic friend, they still tended to interpret his actions negatively, while he also faced accusations of partiality from industrialized countries. The Umbrella Group perceived inherent bias towards the EU, whereas the EU detected compensatory swings towards the Umbrella Group.

“At the start of COP 6, the Indian negotiator echoed the sentiments of almost everyone when he stated ‘we have agreed to agree’” (Depledge, 2001:11). Despite its complexities and difficulties, the collapse of COP 6 was not inevitable, coming as a shock to most delegates (Ott, 2001; Grubb and Yamin, 2001). While ineffective organization throughout the post-Kyoto negotiations cannot carry all the blame, it helped tip the balance towards failure. As noted at the start of this thesis, the organization of the negotiation process usually goes unnoticed until it goes wrong; the positive lessons of Kyoto thus remained largely unlearnt. The organizational lessons of The Hague, however, could not be so ignored.

Since this appendix was drafted, the resumed session of COP 6 (Bonn, July 2001) reached a landmark agreement on the implementation details of the Kyoto Protocol, succeeding where COP 6 part I failed. COP 6 part II in Bonn saw many improvements, and indeed some risky innovations, in the organization of the negotiation process, including in the management of time, negotiating groups, preparation of texts and use of ministerial leadership, which contributed, at least in part, to the unexpected success of that negotiating session (Derwent, 2001). The organization of COP 6 part II, especially when compared with that of COP 6 part 1, raises some fascinating issues. While it is not possible to address them here, 1 hope that the thesis will have demonstrated the value and importance of studying the organization of negotiations, and provided a starting point for further work in this area

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