Multilateral Environmental Agreement Negotiator's Handbook

236 Pages·2013·2.66 MB·English

Multilateral Environmental Agreement
Negotiator’s HaNdbook
PAcific REgion 2013

Multilateral Environmental Agreement
NEGOTIATOR’S HANDBOOK
PACIFIC REGION 2013
Foreword
The acronym “IEG”, also known as International Environmental Governance, is ubiquitous in international
Sustainable Development meetings and debates. Even more so is the term “Multilateral Environmental
Agreements” (MEAs). These terms have contributed significantly to the proposed International Framework for
Sustainable Development, highlighting the cross-cutting nature of environmental issues.
Increasingly, officials from governments throughout the world are participating in international negotiations,
whether multilateral or bilateral. This Handbook has been developed to respond to the needs of these
negotiators, as a practical reference tool to assist them in handling the many complex challenges they will
encounter.
Negotiators need, of course, to be thoroughly versed on the subject matter they are expected to debate and
to be able to anticipate how the outcomes will affect their countries. They need an intimate knowledge of
the procedures and workings of these meetings and of the various actors involved. This Handbook provides
comprehensive and practical advice to negotiators of every stripe in what is an intensely dynamic and pressured
environment.
These negotiations result in the creation of international law and policy so Pacific Island negotiators need to
find their seat at the table of the global community, represent their region effectively and then collaborate with
others in the implementation of these norms.
This Handbook will be the perfect companion to the earlier released booklet for Pacific Island negotiators:
“Taking the Floor”. Applied diligently, these two tools will provide a solid basis for improvement in the skill and
confidence levels of Pacific Island negotiators.
Building the capacity of the MEAs actors in the Pacific region is one of the main objectives of the ACP-MEAs
programme. I would like to thank, on behalf of UNEP, the European Commission for their funding of the ACP-
MEAs Capacity Building Programme, which has made possible the production of this Handbook.
Mamadou A. Kane
Project Manager, ACP-MEAs Capacity Building Programme,
UNEP, Division of Environmental Law and Conventions.
E-mail: [email protected]
Multilateral Environmental Agreement Negotiator’s Handbook, Pacific Region, 2013
© NZCEL and SPREP, 2013
SPREP Library/IRC Cataloguing-in-Publication Data
Secretariat of the Pacific Regional Environment Programme (SPREP)
Taylor, Prue … [et al.]
Multilateral environmental agreement negotiator’s handbook :
Pacific region 2013 / Prue Taylor … [et al.] – Apia, Samoa : SPREP, 2013.
p. cm.
ISBN: 978-982-04-0475-5 (print)
978-982-04-0476-2 (online)
1. Environmental policy - Oceania. 2. Environmental law, International.
3. Negotiation 4. Environmental protection - Oceania. I. Taylor, Prue.
II. Stroud, Lucy. III. Peteru, Clark. IV. Pacific Regional Environment
Programme (SPREP) V. Title.
344.0469
Publishers:
New Zealand Centre for Environmental Law
Faculty of Law, University of Auckland, Auckland, New Zealand, and
Secretariat of the Pacific Regional Environment Programme, Apia, Samoa
Contacts:
New Zealand Centre for Environmental Law
Faculty of Law
University of Auckland
Private Bag 92019, Auckland, New Zealand
Telephone: + 64 9 373 7599, Fax: [phone]
www.nzcel.auckland.ac.nz
Secretariat of the Pacific Regional Environment Programme
P.O. Box 240, Apia, Samoa.
Telephone: + 685 21929, Fax: + 685 20231, Email: [email protected]
www.sprep.org
Introduction
In the Millennium Report, the Secretary-General of the United Nations highlighted that “Support for the rule
of law would be enhanced if countries signed and ratified international treaties and conventions”; however
he noted many countries are unable to engage effectively owing to “the lack of the necessary expertise and
resources.” In response to this need UNEP and its joint partner University, the University of Joensuu, produced
the first and second editions of this Handbook [Multilateral Environmental Agreement Negotiator’s Handbook,
1st edition (University of Joensuu, 2004), Multilateral Environmental Agreement Negotiator’s Handbook, 2nd
edition (University of Joensuu, 2007)]. More recently, as part of capacity building efforts targeting the specific
needs and interests of the Pacific region, it was recognized that the second edition of the Handbook could
usefully be reworked to create a document more suited to the needs of the region. The New Zealand Centre
of Environmental Law, in association with the Secretariat of the Pacific Regional Environment Programme
(SPREP), undertook this work.
The first and second editions of the Handbook, on which this Pacific version is substantially based, were
prepared as a practical introduction to negotiating or working on Multilateral Environmental Agreements
(MEAs). They were prepared for people with little or no technical background in negotiations. They were also
intended to function as a key reference tool for experienced negotiators. As a result the subject matter is
developed at a relatively broad level. However, technical information and language was retained and used in
context, with understanding facilitated by a comprehensive glossary prepared by UNEP. This new Handbook
preserves these key aspects but has enhanced the accessibility of information and, where appropriate, used
examples and material of particular relevance to the Pacific Region.
In recent years, work in the international environmental field is focused more on the implementation of existing
MEAs than on the development of new agreements. To deliver the intended environmental outcomes we need
to increase efforts to negotiate practical issues and technical rules for implementation while also addressing
gaps when promoting integration between MEAs. Our abilities to achieve these tasks will be tested by the
complexity and urgency of issues such as climate change, biodiversity loss and human development. As the
outcomes of the 2009 Copenhagen meeting on climate change demonstrated, our resolve to agree will be
tested by a range of factors, and this may lead to new approaches to negotiation processes and objectives.
This Handbook begins with a brief history of MEAs and major conferences. It lays out the elements of MEAs,
common provisions and the relationships between them. It reviews the “rules of the game” (from the basics
of treaty law to rules of procedure and finance) and gives an overview of the playing field and key actors. It
also looks at structures and roles, provides approaches to drafting and strategic issues, surveys international
cooperation issues, provides a synthesis perspective, and looks at a typical day in negotiations. This Handbook
covers negotiation products and provides a useful checklist. The reference tools include information on
agencies most active in the Pacific region, a new bibliography of useful literature (including electronic sources)
and the Glossary of Terms for Negotiators of Multilateral Agreements (UNEP, 2007). Every effort has been made
to provide up-to-date information.
In addition to the Multilateral Environmental Agreement Negotiator’s Handbook, 1st edition (University of
Joensuu, 2004) and the Multilateral Environmental Agreement Negotiator’s Handbook, 2nd edition (University
of Joensuu, 2007), the other key sources for this Handbook were the United Nations Treaty Handbook (revised
edition, 2012) and the Glossary of Terms for Negotiators of Multilateral Agreements (UNEP, 2007).
MEAs are becoming more common in government life necessitating greater familiarity by more people. We
hope this book will greatly assist in that regard.
David Sheppard
Director General,
SPREP
Acknowledgements
This Handbook for the Pacific region was prepared by the New Zealand Centre for Environment Law (NZCEL),
University of Auckland, in association with the Secretariat of the Pacific Regional Environment Programme
(SPREP). Key individuals involved in this revision were Prue Taylor (NZCEL), Lucy Stroud (NZCEL) and Clark
Peteru (SPREP). Special thanks go to Lucy Stroud, who provided research and editorial assistance.
Copyright in this Handbook is held jointly by NZCEL and SPREP. This publication may be reproduced in whole
or in part and in any form for educational purposes without special permission from the copyright holders,
provided acknowledgement of the source is made.
The MEA Negotiator’s Handbook, second edition, was a joint publication of Environment Canada and the
University of Joensuu – United Nations Environment Programme course on International Environmental Law-
making and Diplomacy. Environment Canada initiated the project, provided core substantive contributions,
considerable expertise and funding for the development of the Handbook. Essential contributions and advice
also came from Foreign Affairs Canada and the Canadian International Development Agency.
Copyright in the first and second editions of the Handbook is held by UNEP in association with the University
of Joensuu.
This Handbook for negotiators is intended to be a useful tool for the myriad processes of international
environmental negotiations. Readers are invited to send any comments, suggestions or updates they
may have for this material.
Four Key Principles
in multilateral negotiations
1. Understand the importance of negotiations:
■ Representing your country is a serious undertaking and a major responsibility.
■ Ensure that you fully understand the subject matter, your country’s interests, and the interests
of other countries.
■ Responsible judgment is essential. Think twice before acting.
■ Listen carefully to what is said and, just as importantly, to what is not said.
2. Respect the process and the participants:
■ Learn about the forum’s formal and informal rules of procedure.
■ Unwarranted obstructionism can undermine the whole system:
■ Treat every participant courteously and honestly. Good relationships are invaluable assets
when thinking about the long-term.
■ Participate constructively, even in difficult situations.
■ Look for win-win situations, as well as opportunities to support countries with different
interests.
3. Aim for progress and efficiency:
■ Focus on substantive objectives and remain flexible on the wording of treaty or decision texts
when your instructions allow.
■ Focus on the interests of each country, rather than positions.
■ When concerned and in doubt, request square brackets around any contentious text and allow
discussion to move on. This use of brackets must be a careful decision as discussion of brackets
can consume valuable negotiation time.
■ Sometimes, acquiring more information and a deeper understanding of issues is the only way to
move forward in negotiations. A workshop or informal group may help to resolve an impasse.
■ Prepare carefully for interventions (oral statements) with a clear focus on objectives. Prioritize
interests, and focus the number and length of interventions accordingly. Brevity and restraint are
appreciated for interventions.
4. Consider the practical necessities:
■ Be prepared for practical necessities, including visa entry requirements, alternative
transportation and meals.
■ Understand the local currency.
Short Table of Contents
Foreword 3
Introduction 3
Acknowledgements 4
Four key principles in multilateral negotiations 5
1. Context 11
1.1. History and context of MEAs 11
2. Forms, nature, principles and elements of MEAs 23
2.1. Forms of MEAs 23
2.2. Soft law and hard law 24
2.3. Treaty-making principles 25
2.4. Key elements of MEAs 38
3. Machinery 43
3.1. Conduct of business in MEA meetings 43
3.2. Institutional and negotiation structures 58
3.3. Roles 70
3.4. Drafting issues 72
3.5. Documents 82
3.6. Strategic issues 88
3.7. Process issues and violations 97
3.8. Funding 98
4. Cross-cutting issues 105
4.1. Governance principles and objectives 105
4.2. International cooperation and related issues 105
4.3. Trends in MEA negotiations 109
5. Synthesis 116
5.1. Typical day in UN negotiations 116
5.2. Products of MEA negotiation phases 118
5.3. Checklists 124
6. Annexes and references 117
6.1. ANNEX A – Key Organizations in the Pacific Region 125
6.2. ANNEX B – Other International Bodies 137
6.3. ANNEX C – Case Studies 152
6.4 ANNEX D – Preamble and Operative Text 155
6.5 ANNEX E – Negotiating Blocs 157
6.6 ANNEX F – The Chair, Bureau and Secretariat 158
6.7 ANNEX G – Overview of Selected MEAs 162
6.8 ANNEX H – Reference Texts and Electronic Resources 169
7. Glossary 197
Table of Contents
Foreword 3 2.4.5. Substantive commitments 39
2.4.6. Financing and technical assistance 39
Introduction 3
2.4.7. Education, training and public awareness 40
Acknowledgements 4 2.4.8. Research and monitoring 40
2.4.9. Conference of the Parties (COP) / Meeting
Four key principles in multilateral negotiations 5
of the Parties (MOP) 40
Short Table of Contents 6 2.4.10. Subsidiary bodies 40
2.4.11. Secretariat, focal points and authorities 41
Table of Contents 7
2.4.12. Compliance, communication and reporting 41
2.4.13. Review of effectiveness 41
1 Context 11
2.4.14. Dispute settlement 41
1.1. History and context of MEAs 11 2.4.15. Treaty mechanisms 41
1.1.1. Key international conferences 11 2.4.16. Annexes 41
1.1.1.1. The Stockholm Conference of 1972 11
3 Machinery 43
1.1.1.2. The Rio Conference of 1992 12
1.1.1.3. The World Summit on Sustainable 3.1. Conduct of business in MEA meetings 43
Development of 2002 15
3.1.1. Rules of procedure 44
1.1.1.4. The Earth Summit of 2012 16
3.1.1.1. Frequency of meetings 44
1.1.1.5. Growth of law-making in international
3.1.1.2. Observers 44
environmental matters 19
3.1.1.3. Agenda 44
3.1.1.4. Budgetary implications 45
2 Forms, nature, principles
3.1.1.5. Credentials 45
and elements of MEAs 23
3.1.1.6. Bureau 45
2.1. Forms of MEAs 23
3.1.1.7. Subsidiary bodies 46
2.2. Soft law and hard law 24
3.1.1.8. Openness of the meetings 46
2.3. Treaty-making principles 25
3.1.1.9. Quorum 47
2.3.1. Effect of an MEA 26
3.1.1.10. Interventions 47
2.3.2. Parties 26
3.1.1.11. Points of order and motions 47
2.3.3. Signature 26
3.1.1.12. Proposals and amendments 49
2.3.4. Ratification, accession, acceptance, approval or
3.1.1.13. Amendments to the rules of procedure 49
definitive signature 27
3.1.1.14. Decision-making, voting and explanation
2.3.5. Full powers 28
of vote (EOV) 50
2.3.6. Entry into force 28
3.1.1.15. Voting majority 50
2.3.7. Reservations 29
3.1.1.16. Elections 53
2.3.8. Interpretative declarations 30
3.1.1.17. Languages 53
2.3.9. Provisional application 32
3.1.1.18. Rectification of textual errors including
2.3.10. Territorial application 32 translation errors 53
2.3.11. Amendments 33 3.1.2. Financial rules 55
2.3.12. Adjustments 35 3.1.2.1. Trust funds 55
2.3.13. Withdrawal 35 3.1.2.1.1. General trust fund 55
2.3.14. Treaty process timeline 36 3.1.2.1.2. Special trust fund 55
2.3.15. Interpretation of treaties and decision texts 36 3.1.2.1.3. Other trust funds 56
2.3.16. Precedent 38 3.1.2.2. Contributions 56
2.4. Key elements of MEAs 38 3.1.2.3. Financial period of the budget 56
2.4.1. Preamble 38 3.1.2.4. Budget estimates 56
2.4.2. Definitions or use of terms 39 3.1.2.5. Budget lines 57
2.4.3. Objective and principles 39 3.1.2.6. Budget voting rules 57
2.4.4. General provisions / scope 39 3.1.2.7. Accounts and audit 57
3.2. Institutional and negotiation structures 58 3.5.2. Pre-sessional documents 82
3.2.1. Institutional structures of conventions 58 3.5.3. In-session documents 82
3.2.1.1. Conference of the Parties 58 3.5.3.1. Conference room paper (CRP) 82
3.2.1.2. Subsidiary bodies 59 3.5.3.2. L. document 83
3.2.1.3. Secretariat 60 3.5.3.3. Informal document 83
3.2.1.4. Depositary and authoritative citations 60 3.5.4. Chair’s text 83
3.2.1.5. Citations and original texts 61 3.5.5. Report of the meeting 84
3.2.1.6. Institutional practice of other bodies 61 3.5.6. Identifiers on documents 84
3.2.1.6.1. Working groups 61 3.5.6.1. Identifiers for each MEA 84
3.2.1.6.2. Contact groups 62 3.5.6.2. Identifiers for the nature of the meeting 85
3.2.1.6.3. Informal groups 62 3.5.6.3. Identifiers to indicate modifications 86
3.2.1.6.4. Friends of the Chair 63 3.5.6.4. Other identifiers 86
3.2.1.6.5. Committee of the whole 63 3.6. Strategic issues 88
3.2.1.6.6. Drafting group 63 3.6.1. Common strategic issues 88
3.2.1.6.7. Legal drafting group 63 3.6.1.1. Meeting preparation 88
3.2.2. State/country groupings 64 3.6.1.2. Venues to build support 88
3.2.2.1. UN regional groups 64 3.6.1.3. At the microphone 88
3.2.2.2. Country designations 65 3.6.1.4. Note-taking 90
3.2.2.2.1. Developing countries 65 3.6.2. Strategic issues in large and small group
meetings 91
3.2.2.2.2. Least developed countries 65
3.6.2.1. Interventions 91
3.2.2.2.3. Countries with economies in transition 66
3.6.2.2. Written proposals 91
3.2.2.2.4. Developed countries 66
3.6.2.3. Unsatisfactory text at the end of the day 92
3.2.2.3. UN negotiating blocs 66
3.3. Roles 70 3.6.3. Expert meetings 92
3.6.4. Secretariat 93
3.3.1. States and Parties 70
3.6.5. In the Chair 93
3.3.2. Observers 70
3.6.6. Shaping overall negotiation outcomes 93
3.3.3. Chair 71
3.6.6.1. General 93
3.3.4. Bureau 72
3.6.6.2. Timing 94
3.3.5 Secretariat 72
3.4. Drafting issues 72 3.6.6.3. Venue 94
3.6.6.4. Creating high-level decision-making 94
3.4.1. General 72
3.6.6.5. Communications 95
3.4.1.1. Initiation of discussion on a text 73
3.6.6.6. Leadership and vision 95
3.4.1.2. Strategic flexibility 73
3.6.7. Practicalities 96
3.4.1.3. Clarity versus ambiguity 74
3.7. Process issues and violations 97
3.4.1.4. Legalese 74
3.7.1. Management of meetings 97
3.4.1.5. Drafting terminology 74
3.7.2. Other issues 98
3.4.1.5.1. Square brackets 74
3.8. Funding 98
3.4.1.5.2. Mutatis mutandis 75
3.8.1. Global Environment Facility (GEF) 99
3.4.1.5.3. Preamble, recital and chapeau 75
3.8.1.1. General 99
3.4.1.6. Amendments and interim numbering 76
3.8.1.2. Project funding 100
3.4.1.7. Elaboration and editing of text 76
3.8.1.2.1. Principles 100
3.4.2. Treaties 77
3.8.1.2.2. Eligibility 100
3.4.2.1. Initial negotiating text 77
3.8.1.3. Relationship to MEAs 101
3.4.2.2. Preamble 77
3.8.1.4. Responsibilities of MEAs focal points 104
3.4.2.3. Objectives 77
3.4.2.4. Control provisions 78
4 Cross-cutting issues 105
3.4.2.5. Final provisions 79
3.4.3. Decision texts 79 4.1. Governance principles and objectives 105
3.4.4. Recommendations 81 4.1.1. Overview 105
3.5. Documents 82 4.2. International cooperation and related issues 105
3.5.1. General 82 4.2.1. Official development assistance 105