Transboundary Environmental Negotiation: New Approaches to Global Cooperation

Y TRANSBOUNDARY ENVIRONMENTAL NEGOTIATION New Approaches to Global Cooperation EDITED BY Lawrence Susskind William Moom...

Author: Lawrence Susskind | William Moomaw | Kevin Gallagher

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Y TRANSBOUNDARY ENVIRONMENTAL NEGOTIATION New Approaches to Global Cooperation EDITED BY

Lawrence Susskind William Moomaw Kevin Gallagher

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TRANSBOUNDARY ENVIRONMENTAL NEGOTIATION

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Y TRANSBOUNDARY ENVIRONMENTAL NEGOTIATION New Approaches to Global Cooperation EDITED BY

Lawrence Susskind William Moomaw Kevin Gallagher

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Copyright © 2002 by John Wiley & Sons, Inc. Jossey-Bass is a registered trademark of John Wiley & Sons, Inc. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Sections 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the Publisher or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, fax (978) 750-4744. Requests to the Publisher for permission should be addressed to the Permissions Department, John Wiley & Sons, Inc., 605 Third Avenue, New York, NY 10158-0012, (212) 850-6011, fax (212) 850-6008, e-mail: [email protected]. Jossey-Bass books and products are available through most bookstores. To contact Jossey-Bass directly, call (888) 378-2537, fax to (800) 605-2665, or visit our website at www.josseybass.com. Substantial discounts on bulk quantities of Jossey-Bass books are available to corporations, professional associations, and other organizations. For details and discount information, contact the special sales department at Jossey-Bass. We at Jossey-Bass strive to use the most environmentally sensitive paper stocks available to us. Our publications are printed on acid-free recycled stock whenever possible, and our paper always meets or exceeds minimum GPO and EPA requirements. Library of Congress Cataloging-in-Publication Data Transboundary environmental negotiation : new approaches to global cooperation / edited by Lawrence Susskind, William Moomaw, Kevin Gallagher. p. cm. Includes bibliographical references and index. ISBN 0-7879-6061-6 1. Environmental law, International. 2. Environmental policy—International cooperation. 3. Negotiation. I. Susskind, Lawrence. II. Moomaw, William, 1938- III. Gallagher, Kevin, 1968K3585.T73 2002 341.7'62—dc21

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CONTENTS

Introduction

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About the Contributors

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PART ONE: RESHAPING ATTITUDES: THE NEED TO RETHINK THE BASIS FOR GLOBAL ENVIRONMENTAL ACTION 1 1 Defining the “Common Heritage of Mankind”

3

Ari Nathan

2 All Commons Are Local: The Antarctic Treaty System as a Regional Model for Effective Environmental Management 24 Gianfranco Corti

3 International Environmental Negotiation: A Strategy for the South 41 Adil Najam

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PART TWO: A SHIFTING CAST OF CHARACTERS: BEYOND THE STATE AS UNITARY ACTOR 83 4 Voluntary Codes of Management: New Opportunities for Increased Corporate Accountability 85 Anne M. Weiss

5 Science and Scientists in International Environmental Negotiations 107 Laurent Renevier and Mark Henderson

6 Science and Economics in Climate Change and Other International Environmental Negotiations 130 Peter Zapfel

7 Promoting North-South NGO Collaboration in Environmental Negotiations: The Role of U.S. Foundations 154 Wendy Gay Vanasselt

8 The Role of the Media in Environmental Issues: Newspaper Coverage in Four Countries 172 Anja Kollmuss

PART THREE: New Tools and Arrangements: Adding Elements to the Treaty-Making System 201 9 Integrating Information Technology into Environmental Treaty Making 205 Tobin L. Freid and Imke Wesseloh

10 Enforcing International Environmental Treaties in Domestic Legal Systems 230 David W. Bowker and Michael Castellano

11 Capacity-Building Strategies in Support of Multilateral Environmental Agreements 252 Heike Mainhardt

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PART FOUR: POSSIBLE NEW TREATIES: UTILIZING THE ELEMENTS OF A NEW SYSTEM 277 12 Global Treaty on Renewable Energy

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Fredric A. Beck

13 A Proposal for an Environmental Right-to-Know Convention: Negotiating the Barriers 304 John Harrison

14 The Global Nitrogen Initiative: An Opportunity for Sustainable Development and Global Change 335 James F. Perkaus

15 A Proposed International Framework Convention on Bioinvasive Species 361 Wendy M. Jastremski

16 Harder than Physics: Negotiating an International Regime to Limit Transboundary Consequences of Nuclear Waste Disposal 376 Marcus Dubois King

PART FIVE: GAUGING THE SUCCESS OF A MORE INTEGRATIVE SYSTEM 393 17 Linking Human Rights and Environmental Quality

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Kristi N. Rea

18 The Potential for Environmental Contributions to Peace Maria Fariello Laux

Bibliography

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Name Index

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Subject Index

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414

Introduction

ore than 150 international environmental treaties have been adopted since the 1972 Stockholm Conference on the Human Environment first drew global attention to the dangers of transboundary pollution and rapid resource depletion. The elements of a makeshift international environmental treaty-making system have been pieced together, but it is woefully inadequate. A preliminary analysis of these weaknesses first appeared in Susskind’s Environmental Diplomacy (Oxford University Press 1995). The system as it stands tends to produce treaties that inevitably fall short of their overly ambitious objectives. This volume includes 18 chapters further analyzing the weaknesses of this system and sketching the changes in global environmental treaty making required to generate agreements that will actually reverse the damage that unsustainable development practices have caused.

M

The Key Assumptions Underlying the Global Environmental Treaty-Making System According to the conventional wisdom, treaties are agreements among countries made by the leaders of those countries, usually because they have something to gain by accepting certain constraints on their actions. Such accords are voluntary—countries are free to sign or not. Since the early 1990s, the pattern has been for countries to agree upon general statements of commitment to broad xi

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goals, or what are called conventions. Over time, these have been followed by protocols, or more specific agreements spelling out detailed obligations. Small professional secretariats, selected by the signatory countries (that is Committee of the Parties), staff the agreements. Whatever money there is to support the work of the secretariats or to underwrite implementation must come from the parties themselves. In general, global environmental agreements seek to reverse the tide or alter some pattern of development that is depleting a valuable resource or creating unsustainable levels of pollution. It is unlikely that any global agreement has ever repaired or reversed the damage toward which it is directed. The initiative for pursuing such accords usually comes from a multilateral agency (like the United Nations Environment Program) or the General Assembly of the United Nations. Those who wish to meet, do so. When they can agree on the language of a convention, they adopt it and wait for countries wishing to join to formally ratify it. Few, if any, agreements incorporate formal mechanisms to ensure implementation. The embarrassment of not living up to agreements, however, and the bad reputation that such behavior would create, is usually enough to encourage most countries to abide by the agreements they sign. In the system described above, there is no formal role for nongovernmental organizations. There is no rule book indicating how many countries must ratify a global agreement before it comes into force; what the penalties for noncompliance are; what countries must do to ensure that their national laws conform to the agreements they have signed; or what kinds of scientific evidence must be in hand to justify action. The mechanics of international law which govern global interaction are notoriously inexplicit and practically impossible to enforce. There is no entity with responsibility for ensuring that progress is monitored or that the more than 180 nations of the world learn from their ongoing experience.

Rethinking the System The chapters in this volume are divided into five sections. The first three discuss the need for changes in attitudes, actors, and treaty-making arrangements required to lay a foundation for more effective environmental treaty making. The fourth section identifies a number of transboundary environmental problems that merit global attention and that could be negotiated more effectively if a new treatymaking system were in place. The volume closes with a discussion of some ways of gauging whether the approach to treaty making we have in mind is working more effectively.

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Reshaping Attitudes: The Need to Rethink the Basis for Global Environmental Action Ari Nathan argues that the Common Heritage of Mankind (CHM) is increasingly important as the interconnected nature of the global ecology becomes increasingly apparent. While the idea that natural resources and life-support systems belong to all mankind was raised almost 150 years ago by John Stuart Mill, specific legal rights associated with this inheritance have yet to be defined. While certain normative principles are embedded in soft law (and have become hard law in a variety of ways), Nathan emphasizes the need to define CHM much more specifically. He outlines three alternative conceptions of CHM and uses the threat of climate change as a device to tease out the practical implications of choosing one conception of CHM over the others. In the end, he suggests a blend of the three: fair and egalitarian distribution; stewardship and intergenerational sustainability; and economical, efficient, and functional use of resources. Unless a different attitude toward CHM underlies global environmental treaty making, the system will always fall short. Gianfranco Corti argues that a true commons is best looked after by those who share an immediate, well-defined interest in it and who will incur costs by neglecting it. These like-minded shareholders need not agree on other issues. The case Corti offers is the Antarctic Treaty System, which from its inception in 1959 included stakeholders notoriously at odds with each other, that is the United States and the Soviet Union. The Antarctic treaties, like other international agreements, operate on the basis of consensus and voluntary cooperation. They have weathered the usual difficulties of international policy making and administration, and have functioned reasonably well. The Antarctic Treaty System has also managed to grow, change, and add other nations as they have been able to meet the criteria for membership. Corti points out that the success of the Antarctic Commons supports the case for the viability of other decentralized environmental regimes. He distills six characteristics of such alliances, including the well-studied Mediterranean Action Plan. Groups working to support a commons should be issue-oriented. Membership should be determined by a litmus test or membership fee that signals a serious commitment. Such groups should be open to all applicants who meet the criteria, regardless of geopolitical affiliation. Group decision making should be transparent and accountable. Policies should be based on impartial and complete fact-finding. Group rules should depend on self-enforcement, fostered by a sense of corporate responsibility. A shift in attitude is required—away from concerted global action (one set of rules fits all) to a linked set of decentralized alliances.

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Corti’s vision of global environmental management conjures up not a global village, but a series of well-governed neighborhoods, each tending to its own commons. Corti concludes, “Our neighbors are not necessarily our best friends . . . but nonetheless, it is among neighbors—not strangers or friends—that decentralized collective action works best.” Underlying most analyses of the success or failure of global environmental agreements is a growing sense that the fundamental breach between the North and the South has worsened. Unless some accommodation can be reached, each environmental treaty will be weakened and ultimately threatened by this clash of competing demands. The South demands reparations for the environmental damage caused by the industrialized countries. The North refuses to acknowledge that the development path it is on is unsustainable and is unwilling to make significant changes. Adil Najam offers a message to the South: “Stop feeling angry at the North and sorry for yourself.” Najam urges the South to adopt a more pragmatic strategy in international environmental treaty making—one based on the lessons of negotiation theory rather than “five hundred years of accumulated anger.” Changes in attitudes on the part of both the North and South will be required, not just towards each other, but towards the need for better management of transboundary environmental impacts and resources.

A Shifting Cast of Characters: Beyond the State as Unitary Actor It is painfully obvious, although the leadership in many countries would not necessarily agree, that more effective management of global environmental resources will involve the full participation of a range of nonstate actors. We are particularly interested in the roles that corporations, the scientific community, NGOs, foundations, and media ought to play. Recognizing that transnational corporations play a major role in the creation of international environmental problems and their solutions, Anne M. Weiss examines voluntary codes of environmental conduct that might make corporations more accountable for their actions. She demonstrates that such codes have the potential to improve the level of auditing and reporting of environmental problems, and to influence corporate management practices—in some instances more effectively than global treaties might. More significantly, as they become incorporated into domestic law, the elements of these codes can influence political agreements at national and international levels, perhaps leading to the development of tougher global standards and more ambitious expectations. Hence, action taken by leading companies engaged in creating voluntary standards can effect

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broader changes in corporate environmental practices on a worldwide basis. While voluntary codes aimed at regulating corporate conduct vis-à-vis the environment are not a substitute for global treaties, they are an important complement and could well provide support for stronger transboundary regulation than might otherwise be negotiated by official national representatives operating on their own. Laurent Renevier and Mark Henderson write about the ways in which scientists participate in international environmental negotiations, challenging the myth of objectivity that traditionally surrounds the involvement of scientists. They call for an “infusion of politics back into science.” In seeking to improve the balance between science and politics, they describe the ways in which biases ought to be made clear, leading to a more judicious use of science, and, therefore, to better environmental treaties. While achieving the proper balance between science and politics (and avoiding what is commonly known as instructed science) will not be easy, it may be the key to involving scientific institutions in global environmental treaty making in a more effective way. Peter Zapfel also looks at the way that scientists are currently participating in international environmental negotiations. Zapfel surveyed some of the 2500 scientists participating on the Intergovernmental Panel on Climate Change to determine their awareness of some of the dilemmas surrounding the integration of science and policy making. He designed several questions to determine the scientists’ view of the significance of economic analysis in climate change negotiations. Based on his findings, Zapfel makes several recommendations, including a call for what he dubs Science-Policy Interaction Panels (SPIPs). Wendy Gay Vanasselt calls upon another international actor to help forge stronger international environmental agreements: U.S. foundations. These groups have the monetary and institutional resources to broker alliances between northern and southern NGOs. Vanasselt suggests that well-placed foundation interventions could add credibility that might generate the support of influential institutions that have remained on the sidelines to date in a great many global treaty negotiations. She also argues that foundations, unencumbered by the exigencies of internal national politics, have the independence to take the long view required to meet global environmental challenges. An additional player in global environmental treaty making is the media. In an analysis of newspaper coverage of the climate change issue in the United States, Great Britain, Germany, and India, Anja Kollmuss examines the mixed messages that have come from the media on this issue. Kollmuss finds that the way in which risks associated with climate change are framed is a direct result of the particular political orientation of the newspapers involved. As a result, newspapers act as de facto parties in the negotiating process (by shaping the interests and opinions of other actors involved), rather than as an educative force.

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Each of these non-governmental actors ought to have a clear role in the global environmental treaty-making system.

New Tools and Arrangements: Adding Elements to the Treaty-Making System Adding additional actors, particularly nonstate actors, will complicate matters. It will not be easy to create settings in which representatives are encouraged to take seriously what others have to say. Most official delegates to global treaty negotiations arrive with carefully worded scripts to read and little or no negotiating flexibility. Getting the necessary technical information into the hands of all participants in multilateral negotiations is practically impossible. Institutional treatymaking capacity needs to be enhanced at the national, regional, and global levels. Tobin L. Fried and Imke Wesseloh show how information technology can help parties prepare for negotiations; provide a forum for the generation of more effective treaty options; allow more direct observation and participation by nonnegotiators; afford negotiators the opportunity to communicate among official negotiations in different spheres; and enhance post-negotiation implementation. They point to real-life examples of successful uses of information technology in negotiations to illustrate that many of the likely challenges can be overcome. David W. Bowker and Michael Castellano examine the current weaknesses of the enforcement and monitoring mechanisms in most international environmental treaties and propose a regime to improve them. Existing systems commonly suffer from deficits of authority, funding, monitoring, and data gathering; inadequate roles for NGOs; and a lack of effectiveness in attaining stated environmental goals. They outline a proposal to bolster the ability of treaty regimes to promulgate their goals, using existing resources and organizations more efficiently. Their basic idea is that all treaties should require each party to allow individuals and non-governmental actors the right to sue in national courts for enforcement of global treaties. The creation of individual rights under international treaties is a familiar concept. However, the environmental application raises some unique issues. For example, the idea of who may be an interested party must be expanded. National laws will have to be harmonized. An appeals process must be organized. For each possible barrier, Bowker and Castellano cite precedents, and, more importantly, jurisdictions in which these problems are being solved. Heike Mainhardt addresses the capacity-building question—how to improve the negotiating capabilities of national governments. She cites capacity building as a problem in both negotiating and implementing treaties. In addition to

Introduction

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outlining a proposal for a Capacity Building Management Unit linking conventions and the private sector, she offers capacity-building indicators that could be used to monitor progress. Each of these new or modified elements of the global treaty-making system could help improve the chances of actually reversing environmental damage and unsustainable practices that require transboundary attention.

Possible New Treaties: Utilizing the Elements of a New System If the changes in the treaty-making system described in the previous pages were in place, it would be much easier to take on some of the transboundary environmental problems that have not yet been addressed at the global environmental treaty-making level. In outlining a Global Treaty on Renewable Energy, Fredric A. Beck encourages the incorporation of industrial concerns, input from the scientific community, and the informational and organizational capacities of NGOs to define linkages between the need for greenhouse gas reduction, trade liberalization, economic development goals, and the contributions that renewal energy can make to all three of these objectives. Beck’s proposal would involve no new organizations; instead, an ad hoc international forum would be created to involve all appropriate existing organizations. Beck is particularly persuasive in arguing the reasons why a renewable energy initiative should be international in scope. He suggests an initiative involving several separate treaties and agreements, coordinated to the greatest extent possible. John Harrison grapples with another issue complicated by differences in national policies and values. He proposes an Environmental Right-to-Know Convention (ERIK) with the objective of securing the greatest possible freedom of access to information held by nation states. Harrison argues that robust environmental protection measures, both locally and globally, must be based on the most complete information possible, widely distributed and subject to comment. Furthermore, he believes, access to environmental information will make it more likely that decision makers will consider the environmental dimensions of all kinds of policy. In detailing the possible barriers to his proposed convention, Harrison acknowledges that national and private interests are likely to feel threatened; conventional patterns of domestic policy making might be disrupted; many countries lack the administrative capacity to comply with a large volume of requests for information; and domestic supporters of the convention may be opposed by other holders of information who favor restrictions on access to

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environmental information. Anticipating these concerns, Harrison offers several possible strategies for meeting them. James F. Perkaus argues that the time is ripe to mobilize emerging global concern about significant alterations in the global nitrogen cycle caused by human activity. Disruptions of the nitrogen cycle could have important consequences for biological diversity and ecosystem services, effects potentially as large as the well-recognized impacts of anthropogenic change in the carbon cycle. Perkaus explores ten reasons why the nitrogen cycle deserves more international attention than it has received. He proposes a comprehensive program, the Global Nitrogen Initiative (GNI), for coping with the broad range of management problems involved. While economic globalization has spawned an elaborate regime to monitor global trade and investment flows, no such mechanisms exist to govern the ecological globalization of species unintentionally transported by global economic activity. Wendy M. Jastremski notes that international shipping alone accounts for the movement of approximately 10,000 species each day in water contained in ship ballast. Invading foreign species can pose great danger to host ecosystems. Jastremski outlines an International Framework Convention on Bio-invasive Species to deal with such threats. Marcus Dubois King suggests that there is a need for a new international regime to limit and guide nuclear waste disposal around the world. Noting that there are more than 150,000 tons of spent nuclear fuel accumulated at globally distributed reactor sites, King proposes a regime to balance the conflicting interests of national governments, the global nuclear industry, and non-governmental organizations with a stake in nuclear waste disposal.

Gauging the Success of a More Integrated System There are some obvious ways in which the success of such treaty regimes might be measured. If a treaty spells out specific objectives, then progress toward meeting those goals could be tracked. However, most global environmental accords are vague with regard to timelines and specific country obligations. If an environmental problem addressed by a treaty only worsens, even though countries do what is required of them, it is difficult to say whether the treaty should be judged effective or not. Also, if most countries do what is required, but a few large (misbehaving) countries refuse to join the treaty regime, it would be hard to judge the treaty itself a failure.

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A more effective global environmental treaty-making system would not only produce agreements that halt unsustainable development practices and repair the damage they have caused, but would also work to achieve other international objectives at the same time. For instance, it may be possible to achieve more sustainable resource management practices while simultaneously enforcing human rights guarantees. It might also be possible to shape transboundary environmental treaty-making efforts in ways that contribute to broader peacemaking initiatives. Thus, merely meeting the stated objectives of a treaty is an insufficient indicator of success. Kristi N. Rea argues that environmental issues, particularly those related to human health, can and should actually be addressed within the context of international human rights. She proposes that instead of looking toward the International Court of Justice (which has an extremely narrow mandate vis-à-vis the environment), environmental activists ought look toward the U.N. Human Rights Convention as an avenue for addressing environmental claims. She is optimistic about establishing a link between environmental quality and the right to life guaranteed under the International Human Rights regime. This intertwining of human rights guarantees and environmental objectives would, she believes, strengthen the efforts to achieve both. Maria Fariello Laux shows how there can be room for environmental cooperation among enemies. She argues that certain environmental issues, which are not necessarily related to questions of immediate national security, may prompt the creation of forums within which trust can be nurtured, even in the context of antagonistic relationships. She concludes that the roles played by non-governmental organizations and international organizations (like UNEP) are key to adding environmental efforts to the confidence-building agendas of long-term peacemaking projects.

Conclusion Global efforts to manage resources more wisely and to reverse the severe environmental damage caused by past development practices are still in their infancy. The rudimentary system currently in place for generating transboundary agreements concerning resource management, pollution reduction, and sustainable development needs to be strengthened. This can best be accomplished by clarifying underlying global responsibilities for environmental protection and adjusting attitudes accordingly, widening the circle of participants in the treaty-making

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process, and modifying the institutional arrangements or assignment of responsibilities among these actors and institutions. If these steps are taken, it will be possible to address some of the global concerns that have not yet been the subject of multilateral treaty making. Greater success in environmental treaty making will mean not only progress in reversing the damage we currently face, but movement in the right direction on a whole series of fronts of equal or even greater importance. It could extend, for example, to the protection of human rights or fragile peacemaking efforts in many corners of the world.

Prior Publication Each chapter in this volume originally appeared in an issue of the annual series, Papers on International Environmental Negotiation, edited by Professor Lawrence Susskind, Professor William Moomaw, and others over the past decade. The series, now in its eleventh year, is published by the Program on Negotiation at Harvard Law School. The chapters presented here have not been revised to reflect historic change subsequent to their original publication, for two reasons. First, each discusses issues of major significance at a specific time in the evolution of environmental thought and politics. The arguments, references, and language are integrally related to that milieu. Second, each reflects a principle in environmental decision making that the editors consider universal—applicable not just at the time the authors were writing but also to the ongoing development of this field. In addition, each principle illustrated in this volume is a robust, adaptable, and well-tested contribution to global cooperation on the impact of human life on local, regional, and global environments. Defining the “Common Heritage of Mankind”; Ari Nathan; Global Environment: Negotiating Its Future (Volume 7, 1998) All Commons Are Local: The Antarctic Treaty System as a Regional Model for Effective Environmental Management; Gianfranco Corti; Innovations in International Environmental Negotiation (Volume 6, 1997) International Environmental Negotiation: A Strategy for the South; Adil Najam; Papers on International Negotiation (Volume 3, 1993) Voluntary Codes of Management: New Opportunities for Increased Corporate Accountability; Anne Gelfand Weiss; Papers on International Environmental Negotiation (Volume 5, 1995) Science and Scientists in International Environmental Negotiations; Laurent Renevier and Mark Henderson; Papers on International Environmental Negotiation (Volume 4, 1994)

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Science and Economics in Climate Change and Other International Environmental Negotiations; Peter Zapfel; Global Environment: Negotiating its Future (Volume 7, 1998) Promoting North-South NGO Collaboration in Environmental Negotiations: The Role of U.S. Foundations; Wendy Gay Vanasselt; New Directions in International Environmental Negotiation (Volume 9, 1999) The Role of the Media in Addressing International Environmental Problems; Anja Kollmuss; Reforming the International Environmental Treaty-Making System (Volume 10, 2001) Revolutionizing International Negotiations: Making Information Technology an Integral Part of Environmental Treaty-Making; Tobin L. Freid and Imke Wesseloh; International Environmental Negotiation: An Integrative Approach (Volume 9, 2000) Enforcing International Environmental Treaties in Domestic Legal Systems; David W. Bowker and Michael Castellano; Innovations in International Environmental Negotiation (Volume 6, 1997) Capacity Building Strategies in Support of Multilateral Environmental Agreements; Heike Mainhardt; Reforming the International Environmental Treaty-Making System (Volume 10, 2001) Global Treaty on Renewable Energy; Fredric A. Beck; Global Environment: Negotiating its Future (Volume 7, 1998) A Proposal for an Environmental Right-to-Know Convention: Negotiating the Barriers; John Harrison; Innovations in International Environmental Negotiation (Volume 6, 1997) The Global Nitrogen Initiative: An Opportunity for Sustainable Development and Global Change; James Perkaus; Global Environment: Negotiating its Future (Volume 7, 1998) A Proposed International Framework for Bio-Invasive Species; Wendy M. Jastremski; Reforming the International Environmental Treaty-Making System (Volume 10, 2001) Harder than Physics: Negotiating an International Regime to Limit Transboundary Consequences of Nuclear Waste Disposal; Marcus Dubois King; Reforming the International Environmental Treaty-Making System (Volume 10, 2001) Linking Human Rights and Environmental Quality; Kristi N. Rea; Papers on International Environmental Negotiation (Volume 4, 1994) The Potential for Environmental Contributions to Peace; Maria Fariello; International Environmental Negotiation: An Integrative Approach (Volume 9, 2000)

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The Editors Lawrence E. Susskind is Ford Professor of Urban and Environmental Planning at the Massachusetts Institute of Technology. He is Visiting Professor at Harvard Law School and Vice-Chair for Instruction at the Program on Negotiation at Harvard Law School. Professor Susskind is also founder of the Consensus Building Institute in Cambridge, Massachusetts, a not-for-profit organization that provides mediation services in complicated public disputes around the world. William Moomaw is Professor of International Environmental Policy at the Fletcher School of Law and Diplomacy at Tufts University where he directs the International Environmental and Resource Program. He is also director of the Global Development and Environment Institute at Tufts. He holds a doctorate in physical chemistry and his research interests include: the greenhouse effect; stratospheric ozone depletion; air pollution; the role of science and technology in national and international policy; and wetlands, forests, and energy policy. Kevin Gallagher is a Research Associate at the Global Development and Environment Institute at Tufts University. He works on international trade and sustainable development. His recent volumes are: A Survey of Sustainable Development: Social and Economic Dimensions (edited jointly with Jonathan Harris, Tim Wise, and Neva Goodwin), and International Trade and Sustainable Development: An Integrative Approach (edited jointly with Jacob Werksman). He holds a master’s degree in international environmental policy and is currently a doctoral student in international political economy at Tufts. xxii

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The chapters in this volume were originally presented in the series entitled International Environmental Negotiation published annually by the Program on Negotiation at Harvard Law School from 1992 to 2001. They are all based on papers prepared for the graduate seminar on International Environmental Negotiation taught each year by Professors Moomaw and Susskind.

The Authors Fredric A. Beck is Research Manager of the Renewable Energy Policy Project (REPP), a private nonprofit organization devoted to the promotion of renewable energy in the United States through credible research, public education, and outreach to the environmental and legislative communities. Papers soon to be published through REPP include “Powering the South, Biopower in the South,” and “Powering the Digital Economy: Efficient Design of Internet Data Centers.” Mr. Beck holds a joint Masters degree in International Relations and Resource and Environmental Management from Boston University, and a Bachelors degree in Physics, cum laude, from the University of California at Santa Cruz. Michael Bowker lives in Washington, D.C., where he works as an Attorney Advisor in the office of the Legal Advisor, U.S. State Department. Michael Castellano received a B.A. with Honors from Johns Hopkins University in 1994 and graduated cum laude from Harvard Law School in 1998. In 2000, he received a Masters degree from the Fletcher School of Law and Diplomacy at Tufts University focusing on International Trade and Commercial Policy and International Business and Economic Law. His Masters Thesis, Privatization as Negotiation, applied a negotiations framework to the process of planning and carrying out a privatization program. Mr. Castellano clerked for the Hon. Francis Murnaghan on the U.S. Court of Appeals for the Fourth Circuit from 1998 to 1999. From 1999 to 2001 he practiced international trade law at the law firm of Dewey Ballantine, LLP. Currently he works in the U.S. House of Representatives for the Democratic staff of the Ways and Means Subcommittee on Trade and as Trade and Tax Counsel to the Hon. Sander M. Levin. Gianfranco Corti lives in Silver Spring, Maryland. He works in the Evaluation and Research Division of the Immigration and Naturalization Service, part of the U.S. Department of Justice. Tobin L. Freid received her Bachelor of Arts in Environmental Studies from the University of California, Santa Cruz in 1993. She recently received a Master of Arts in Law and Diplomacy at the Fletcher School at Tufts University. At Fletcher, Ms. Freid focused on International Environment and Resource Policy and Negotiations and Conflict Resolution. Ms. Freid has also worked on domestic environmental issues in the White House and the Department of Energy.

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John Harrison is a Solicitor of the Supreme Court of England and Wales and a partner in the leading public law firm Sharpe Pritchard, where he practices urban planning and environmental law. He was a Harkness Fellow and visiting scholar at the MIT Harvard Public Policy Disputes Program at the Program on Negotiation at Harvard Law School 1995–1996. He is the author of Police Misconduct: Legal Remedies (third edition 1995) and “Environmental Mediation: the Ethical and Constitutional Dimension,” published in the Journal of Environmental Law (U.K.). He published a study of the Aarhus Convention on access to information, public participation, and access to justice in environmental matters as “Legislazione ambientale europea e liberta di informazione: la Convenzione di Aarhus” in the Italian environmental law review Rivista Giuridica Dell’Ambiente. Mark Henderson is completing a doctorate in Environmental Science, Policy, and Management at the University of California, Berkeley; his research focuses on the geographical patterns of environmental change in China. He previously received a Masters degree in Regional Studies–East Asia from Harvard University and worked for the Massachusetts Office of Environmental Affairs and ManTech Environmental Technology, Inc. His coauthored article “China’s Fertility Transition Through Regional Space” was recently published in Social Science History. Wendy M. Jastremski is currently a Program Analyst in the Presidential Management Internship Program with the U.S. Environmental Protection Agency. She earned two graduate degrees from MIT in 2001: M.S. in Technology Policy and M.S. in Urban Studies and Planning. She received her B.A. in Chemistry from Dartmouth College in 1995. Marcus Dubois King is currently a Ph.D. candidate at the Fletcher School of Law and Diplomacy at Tufts University, where he is concentrating on environmental security issues. Mr. King served in staff positions in the Offices of the Secretary of Energy and Defense during the first and second Clinton Administrations. As a consultant, he has written and contributed to several recent reports on both nuclear policy and climate change. Anja Kollmuss holds a graduate degree in Urban and Environmental Policy from Tufts University. Her areas of interest include climate change, consumption, and pro-environmental behavior. She currently works for the Tufts Climate Initiative and is a contributing author to the Intergovernmental Panel on Climate Change’s Third Assessment Report. Maria Fariello Laux holds a Masters of Law and Diplomacy from the Fletcher School of Law and Diplomacy at Tufts University and a bachelors of Arts in East Asian Studies from the University of Wisconsin, Madison. Her professional experience includes having worked with the European Human Rights

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Foundation (U.K.) in Brussels Belgium as project manager for human rights training programs throughout Europe. Heike Mainhardt has worked for more than ten years in both the private and nonprofit sectors of the environmental field on assignments in Indonesia, Peru, Brazil, and Russia. She has been a consultant to a wide range of organizations, including the USEPA, UNEP, World Bank, IFC, IEA, and the Nigerian government. Ms. Mainhardt has an extensive background in the area of climate change and is a contributor to the Intergovernmental Panel on Climate Change (IPCC). Currently, she is a Senior Program Officer with World Wildlife Fund’s Macroeconomics for Sustainable Development Program Office. Ms. Mainhardt holds a Master’s degree from the Fletcher School of Law and Diplomacy at Tufts University (International Environmental Policy and Development Economics) and a B.S. from the University of Michigan. Adil Najam, originally from Pakistan, is Assistant Professor of International Relations and Environmental Policy at Boston University. His areas of research and writing include international negotiation, international environmental policy, technology policy, international organizations (especially the U.N. system), and the role of non-state actors (especially NGOs) in national and international policy. Prof. Najam serves on several international boards concerned with global environmental matters, and was a chapter lead author for the Third Assessment report of the Intergovernmental Panel on Climate Change (IPCC). He was awarded MIT’s Goodwin Medal for Excellence in Teaching, the Stein Rokan Award of the International Political Science Association (IPSA), and the Emerging Scholar Award of the Association for Research on Nonprofit and Voluntary Association (ARNOVA). Ari Nathan has substantial experience in multilateral environmental agreements and policy issues, including national representation at the U.N. Framework Convention on Climate Change. His broad range of legal and diplomatic experience includes overseeing the legal transition of the last U.N. Trust Territory (Palau) to independent status. He holds an M.A. and a Ph.D. (International Relations) from the Fletcher School of Law and Diplomacy at Tufts University; a J.D. from the Law Center at the University of Southern California; a Certificate in International Law from the Paris Institute of International and Comparative Law; and a B.A. (Anthropology) from the University of California at Berkeley. His recent publications include “Oil Spills in the United States: Response and Liability,” Tropical Coasts, and Best Practices for EPA’s International Capacity-Building Programs (U.S. EPA, 1999). James F. Perkaus is a Fellow in the Climate, Energy, and Pollution Program at the World Resources Institute (WRI) in Washington, D.C. and a Ph.D. candidate in International Relations at Tufts University’s Fletcher School of Law and Diplomacy. He recently coauthored a WRI Climate Note entitled Risky

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Business: Lessons in Risk Management for an International Greenhouse Gas Emissions Market (available at: www.wri.org/wri/climate). Kristi N. Rea currently serves as the Team Leader, Urban Environmental Initiative (UEI) at the United States Environmental Protection Agency (EPA) in Region 1, New England. The UEI restores the quality of the environment and improves public health in communities throughout New England. In 2000, she was awarded the EPA’s Gold Medal for Superior Government Service for her role in rapidly responding to contamination in the Woonasquatucket River in Rhode Island in a scientifically sound and environmentally just manner. She has extensive experience in the public and private sectors in environmental technology and policy. Ms. Rea earned her Master of Arts in Law and Diplomacy from the Fletcher School of Law and Diplomacy at Tufts University in 1994, with special concentrations in International Environmental Law, Environment and Resource Policy, Public International Law, and International Negotiation and Conflict Resolution. She received a Bachelor of Arts degree in International Affairs from Lewis and Clark College in 1992. Laurent Renevier is a Project Manager at Société Générale Investment Banking, a position he has filled at OECD Headquarters in Paris, and at Deutsche Bank Consulting Group in Frankfurt, Germany. He holds a Masters degree from the Fletcher School of Law and Diplomacy at Tufts University, and an M.B.A. from the Institut d’Etudes Politiques (Sciences Po) Paris. Wendy Gay Vanasselt codirects the World Resources Report published by the World Resources Institute (WRI) Washington D.C. Her writing and analysis is currently focused on issues of ecosystem governance. She has also served as associate director of development for the Institute, and, prior to joining WRI, worked to reform the 1872 Mining Law. She holds a Master’s degree in Public Administration from the Kennedy School of Government, Harvard University. Anne M. Weiss is Senior Manager for PricewaterhouseCoopers, where she specializes in the area of corporate disclosure of nonfinancial performance, and assists Fortune 500 companies in developing and managing their corporate social responsibility programs, mitigating reputation risk, and addressing sustainability issues. She leads the development of new services within PwC that aid clients in measuring and reporting these and other intangible assets; she also acts as PwC’s global liaison to the Global Reporting Initiative, an international effort to establish globally applicable guidelines for reporting on the economic, environmental, and social performance of corporations. In February 2000, Ms. Weiss’s commentary “Human Rights and Corporate Governance: Reporting Guidelines for Global Multinationals” was published by the Global Reporting Initiative. She received her Masters in City Planning from MIT, and her B.A. in Environmental Studies from the University of California.

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Imke Wesseloh is currently pursuing a Master’s degree at the Fletcher School of Law and Diplomacy at Tufts University, where she specializes in international commercial and trade policies and international environmental and resource policies. Next year, she will complete an M.B.A. program at the grande ecole “Hautes Etudes Commerciales” in Paris. Ms. Wesseloh is involved with the national organization, Students for Responsible Business (SRB), and she cofounded the first SRB chapter at the Fletcher School. While at Fletcher, she worked part-time for the Center for Applied Research in Cambridge, Massachusetts, a management consulting firm. Imke earned her undergraduate degree in management and economics at the University of London and worked for Deutsche Bank for two years. Peter Zapfel lives in Brussels.

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TRANSBOUNDARY ENVIRONMENTAL NEGOTIATION

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Y PART ONE

RESHAPING ATTITUDES The Need to Rethink the Basis for Global Environmental Action

ow we think about international environmental issues and the international political system may be as important as what we think about them. Some of the greatest barriers to achieving international environmental agreements are the mind-sets and cultural divides between nations. It is striking how often negotiators talk past one another because each is arguing from a different set of principles. For example, in the climate negotiations, the United States bases its position on economic efficiency, and the consequences for existing economic interests. Oil exporting countries do not care so much about economic efficiency, but share the American concern of protecting their present industrial base despite its destructive consequences. The U.S. position is not dissimilar to that of many developing countries that argue that protecting the climate must come secondarily to their economic development. Their disagreement is, however, most often cloaked in the banner of equity. The equity principle is often invoked to argue that developing countries deserve to receive special consideration because of their low per capita incomes that can only be bolstered through a process that unfortunately may require further damage to the commons. Some in the South argue further that they deserve reparations from the North for damage already inflicted on the commons. The North in general is unwilling to admit the destructiveness of its pattern of consumption, and still believes that a few technological fixes will suffice to bring the economic and ecological systems into alignment. The third side of the negotiation is informed by the sustainability principle

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Transboundary Environmental Negotiation

often advocated by some European nations. As is demonstrated here for climate change, strict adherence to any one of these single principles results in wildly different obligations for each country. The several strategies outlined in this section offer alternatives for reconciling these three different sets of principles. Reconsidering what we mean by the commons and the common heritage of mankind could recast environmental negotiations along a new set of common principles. It may be more effective to give regional groups of nations primary control over specific aspects of the commons, but their efforts must be linked through larger global agreements. Or perhaps in the case of a true global commons such as the climate system, the responsibility might be taken on primarily by those most responsible for threatening it, with other nations playing more of a watchdog role, with a differentiated set of mitigation obligations. It is clear that the benefits derived from protecting the commons are not always seen as sufficient to motivate countries to act, in part because of the high level of distrust that exists among them. History weighs heavily on the present. The accumulated anger of the South towards the North for colonialism spills over like an ideological force of nature. It is argued here that such a reaction is counterproductive to the substantive goals of many developing countries. The same might be said of American insistence that efficient markets be the solution to every problem, even when they are not applicable. The fact is that there is some merit to each of the principles that are implicitly used by differing factions, and elements of each must be incorporated into agreements in order for them to be effective. It is essential that all parties see solutions as fair and equitable, both within the present generation, and for future ones. No political leader can be successful if he or she does not provide for the future of their people. In other words, the sustainability mantra of meeting the needs of the present generation without compromising the ability of future generations to meet theirs is not only ethically important, it is politically essential. Finally, since economic resources are limited it is also essential that they be utilized efficiently in restructuring the production system to reduce adverse environmental consequences. To accomplish these transformations of attitudes will require an explicit recognition that differences in values exist, and that a concerted effort must be made to understand differing perspectives and value systems. Implicit assumptions must be illuminated and not hidden under outdated rhetoric. Both the North and the South need to change their attitude from one of blaming each other to utilizing principles of mutual gains to protect their own interests along with the commons and their common heritage. Perhaps, as suggested here, it will be essential to take a head-on approach in which these differences are discussed openly in a forum designed to get attitudes as well as interests onto the negotiating table.


Y CHAPTER ONE

DEFINING THE “COMMON HERITAGE OF MANKIND” Ari Nathan

n 1967 Arvid Pardo, Malta’s United Nations Ambassador, made his visionary proposal that the seabed and ocean floor be declared a common heritage of mankind. Since that time, the term Common Heritage of Mankind (CHM) has become increasingly popular within the environmental lexicon. It has been described as “the broadest and most sustained attempt ever to reform and codify a set of global environmental norms” (Vogler, 1996, p. 16, referring to UNCLOS III). Another author has suggested that “the common-heritage-of-mankind principle, [is] now widely recognized as an appropriate regulatory mechanism for the protection of global ‘life-support systems’ such as the ozone layer and the climate system” (Imber, 1996, p. 139). Yet despite this there has been a lack of clear agreement about how CHM should be defined.1 Perhaps the broadest way of thinking about CHM is that it is “the natural resources and vital life-support services that belong to all mankind rather than to any one country” (Porter and Brown, 1996, p. 13). That such resources could in some way be considered jointly owned by all humanity is not a brand new idea. The English philosopher John Stuart Mill suggested that “the Earth itself, its forests and water above and below the surface. These are the inheritance of the human race” (quoted in Cairncross, 1992, p. 6). However, although this issue was raised by Mill almost 150 years ago, the specific legal rights associated with this inheritance have not as yet been clearly defined. This definitional lag has been explained by Siebert (1995, p. 103):

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The definition of property rights has been a historical process. If we look at human development since Adam and Eve left paradise, the increasing scarcity of resources required the definition of property rights. When land was in ample supply, property titles for land were not necessary. When people competed for the scarce good land, property titles became relevant. Similarly, water once was a free good, but today property titles for water are well accepted.

That property rights associated with CHM might evolve was recognized by Mill, who suggested that “air, for example, though the most absolute of necessaries, bears no price in the market because it can be obtained gratuitously . . . It is possible to imagine circumstances in which air would be a part of wealth. If from any revolution in nature the atmosphere became too scanty for the consumption, air might acquire a very high marketable value” (quoted in Hite and others, 1972, p. 15).

Why Is It Necessary to Define CHM? There is growing evidence that CHM is an evolving concept. Concepts which are based on normative principles, or soft laws, are often the foundation for specific multilateral agreements and/or laws because international law is “developed . . . by reference to general principles” (Birnie quoted in Susskind, 1994, p. 30). They can also “be hardened by later international practice. [And]soft-law instruments have also served as forerunners of subsequent treaty law . . . or as a mandate for new mechanisms of intergovernmental cooperation” (Sand, 1991, p. 253). Even more specifically, “Soft law may be turned into binding international law in two ways: Principles included in soft-law agreement may become so widely regarded as the appropriate norms for a problem that they are ultimately absorbed into treaty law; or political pressures may arise from those dissatisfied with spotty adherence to soft-law norms to turn a nonbinding agreement into a binding one” (Porter and Brown, 1996, p. 45). Normative principles provide an underlying foundation that can be agreed to and to which the parties can refer to resolve (otherwise) contentious issues. They are particularly helpful in the development of environmental agreements because environmental treaties often involve disagreeable sacrifices that no party wishes to make, and simply compromising on the degree of the sacrifice each party makes is often not an effective protective mechanism for the environment. But, with a normative principle to serve as the basis to resolve disagreements in the formation of the agreement, compromises are likely to be more compatible with the general environmental goals of the agreement. For CHM to effectively move from a concept based on soft law to actual hard law requires that it be clearly defined. Hard laws need to be enforceable, which


Defining the “Common Heritage of Mankind”

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means they must be specific enough to be understood. It has, for example, been pointed out by Susskind (1992) that the Basel Convention on the Transboundary Shipment of Hazardous Waste avoids the politically difficult task of defining key terms. While this lack of specificity made it possible for reluctant countries to sign, it also undermines the chances of successful implementation. For instance, the agreement calls for the disposal of hazardous waste in an “environmentally sound manner.” It does not, however, say what this means (Susskind, 1992a, p. 67). Additionally, before a concept such as CHM could explicitly become the basis for multilateral agreements, those states potentially adversely impacted by the agreement may require that it be clearly defined. Multilateral agreements to protect the environment (and hence normative principles on which such agreements can be based) are needed because “global environmental systems cannot either be annexed by states or be left res nullis (without the protection of the law), for they would then be liable to destruction by unregulated exploitation—Hardin’s ‘tragedy of the commons’ ” (Imber, 1996, p. 139). The globalization of the tragedy of the commons is a function of “national efforts to maintain not only control over all decisions within their geopolitical borders but autonomy over actions that affect common areas and resources as well” (Susskind, 1994, p. 21). Without clear and objective international standards, the environment will continue to be abused because individuals and nations are also less likely to acknowledge the harm of their own actions. This means that the need for “locating those political values that can ascribe meaning to global political life, and can provide grounds for selecting practical solutions to insoluble philosophical problems” (Dryer, 1996, p. 36) is particularly acute.2

Different Definitions of CHM A review of the relevant literature reveals three distinct definitions of CHM, each based on a different normative principle. Which principle one uses to define CHM may be a function of the perception one has of the overriding need(s) which could be met if CHM becomes an accepted concept in global environmental regimes. But how one defines CHM will create quite different results when trying to quantitatively outline relative obligations under a potential agreement. The first normative principle used to define CHM builds on the notion that there should be a fair and egalitarian distribution of common resources (FAIR). In other words, all people should benefit from resources that are not exclusively owned by any single nation. In accordance with FAIR, “developing-country officials as well as NGOs began to demand in the early 1990s that industrialized countries reduce their share of what they call ‘environmental space’—the use of the


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earth’s limited natural resources and environmental services—and permit developing countries to use more of that environmental space in order to raise their living standards” (Porter and Brown, 1991, p. 112). However, developing countries are not necessarily proponents of FAIR. It was fear of FAIR that led Malaysia and India to object to the application of principles of global responsibility for forest management because they saw this as an attempt “to establish the legal principle that forests are ‘global commons’ or part of the ‘common heritage of mankind,’ thus giving industrialized countries some right to interfere in the management of the tropical forest countries’ resources” (Porter and Brown, 1991, p. 126). FAIR may also be seen as a primary motivating factor in the Second World Climate Conference’s declaration that “in order to stabilize atmospheric conditions of greenhouse gases while allowing for growth in emissions from developing countries, industrialized countries must implement reductions even greater than those required, on average, for the globe as a whole” (Paterson, 1991, p. 66).3 The second normative principle on which the definition of CHM could be based is the idea of stewardship or intergenerational sustainability (SUSTAIN). SUSTAIN is an explicit component of Edith Brown Weiss’s “Declaration of Planetary Rights and Obligations to Future Generations” which lays out principles of intergenerational equity. SUSTAIN also underlies the “Bill of Rights for Future Generations” which Jacques Cousteau proposed and which has been signed by millions of people. It stands for the idea that future generations have a right to an uncontaminated and undamaged Earth and that present generations are responsible for protecting that right. The proposed “Declaration of the Right to Nature Conservation, Environmental Protection and Sustainable Development,” which was produced by the Bruntland Commission, relies on SUSTAIN in its call for nations to “conserve and use the environment and natural resources for the benefit of present and future generations . . . prevent or abate any transboundary environmental interference which could cause or causes significant harm . . . provide compensation for the harm caused” (Susskind, 1994, pp. 176–179). Together these documents lay out “principles of intergenerational equity” (Susskind, 1994, p. 108) with the underlying view being that each future generation is entitled to receive an undamaged earth and that therefore each present generation has an obligation to prevent harm to it. The third normative principle that can define CHM hinges on the idea that harm to the planet should be avoided or reduced by the most economical, efficient, and functional (ECON) means possible.4 This is the view that locates the problem of sustainability within the context of a global economy of mutually interdependent actors. They regard nature as a commodity that can be subject to property rights, and believe that market mechanisms create the most efficient use of



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resources. Sustainable development policies can be pursued through the creation of economic incentives to retard, stop, or reverse the process of environmental degradation (Williams, 1996, p. 53). A rationale behind ECON is that “clear rights of ownership for natural resources may sometimes improve the way they are managed. If ownership of environmental assets is clearly established, then polluters and the polluted will be able to bargain over a reasonable price for allowing pollution to take place” (Cairncross, 1992, p. 10).5 The application of economics to environmentalism “seems odd to many environmentalists. The very idea that values can be attached to natural beauty is an affront to those who think that it is beyond price” (Cairncross, 1992, p. 7). How much odder then to go a step further and consider economic analysis as an actual normative principle. However, one of the fundamental principles underlying neoclassical economics6 is that it provides the mechanism for the maximization of happiness (for contemporary humans at least). While one may not feel that the maximization of happiness (or utility) is the best of all normative principles, it is hard to deny7 that it is reasonable to consider it as a potential normative principle. A cost-benefit analysis is the primary method used to determine how ECON best maximizes utility. To summarize, FAIR, SUSTAIN, and ECON appear to represent three possible, and very different, ways in which CHM can be defined. While one might argue that CHM should encompass all three definitions, analyzing each separately produces very different results, which suggests the difficulty in amalgamating them. To illustrate how this is so it is useful to examine the application of each definition to a specific environmental issue; in this chapter, the introduction of greenhouse gases (GHG)8 into the atmosphere.

A Bunch of Hot (and Dirty) Air The fact that there is some relationship between GHG and climate change is relatively straightforward and agreed upon. During the day the sun transfers to the earth heat energy that is radiated back into space as infrared energy. Some of this infrared energy radiation is absorbed by GHG in the atmosphere. Naturally (that is, non-technologically) produced CO2 and water vapor were the two primary GHG prior to the beginning of the industrial revolution. Since 1800 the increases in GHG have included the doubling of methane, the introduction of synthetic CFCs (which are also infamous as ozone depletors), and an increase in atmospheric CO2 of over 25 percent (Baarschers, 1996, p. 127). Although much of this discussion focuses on emissions, it is the total quantity of GHG in the atmosphere that creates the greenhouse effect. Of the


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different GHG, CO2 is the most important one because it has by far the largest effect on climate change given its quantity, infrared absorption capacity, and life span. Since 1960 alone global concentration of CO2 has increased from 316 parts per million (ppm) to 350 ppm.9 Approximately 80 percent of the CO2 increase is from the use of fossil fuels (particularly car exhaust and electric power production) with the remaining increase coming primarily from the burning of tropical rain forests and the production of cement (Rathjens, 1991, p. 157). Although there is consensus within the scientific community that global warming is occurring and that it is linked to increased atmospheric concentrations of GHG, “it is very difficult to calculate the potential enhancement of the greenhouse effect by atmospheric pollution . . . the magnitude of the effect is still unknown” (Baarschars, 1996, p. 127). However, it is speculated that “this warming could shift storm track patterns and significantly diminish soil moisture levels in major grain-producing areas, such as China, the United States, and the (former) Soviet Union. Thermal expansion of the oceans and some melting of sea ice could raise the average sea level, flooding most of low-lying Bangladesh. Worse, nonlinear or unexpected changes in the climate system might occur” (Chandler, 1990, p. 1). Moreover, “whole ecological systems could be destroyed or transformed, especially with the destruction of wetlands, estuaries, and barrier islands. The possibility of dramatic changes in ocean currents . . . could have catastrophic effects on fisheries and local climates” (Rathjens, 1991, p. 167). It is helpful to think of air pollution as a resource use, since air is a resource which pollution adversely affects. Such a perspective “interprets nature and the environment as a scarce resource . . . Consequently, environmental disruption and environmental use are by nature allocation problems” (Siebert, 1995, p. xiii). In this view, consideration of air pollution becomes an issue “of competing uses and is, therefore, a question of scarcity. Thus using the environment presents itself as an allocation problem” (Siebert, 1995, p. 18). This problem is assisted by the use of cost/benefit analysis, but such analysis is not easy,10 as “the problem of measuring the demand for nonmarket goods, such as environmental amenities, is doubly difficult. In the case of marketable goods the economists can observe the quantities purchased at given prices and apply statistical techniques to get some estimate of demand. But since there are no explicit markets for clean air, clean water and many other types of environmental amenities, there are no prices of quantities to observe” (Hite, 1972, p. 40). In addition to the problems associated with costing global warming, there are two “major and fundamental problems in trying to ‘do something’ about the GHG problem . . . the uncertainty as to the magnitude and seriousness of climate change . . . and the time scales of concern” (Rathjens, 1991, p. 171). The time problem associated with analyzing the impact of GHG has two components.



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First, the time scale for effects of GHG is large (relative to the type of cause-effect relationships which usually result in policy decisions in human affairs). The global system of oceans acts as a heat sink that by itself can delay climate response by “a decade or two. More important is the fact that the effects of GHG buildup will be cumulative over a time scale measured in centuries. This follows because . . . with the exception of methane and ozone, the other important greenhouse gases have lives in the range of 50–175 years” (Rathjens, 1991, pp. 177–178). The second time-scale problem is the moral and economic issue of how to properly discount. Essentially time discounting is the application of a number per time-unit through which the value of money in the future is converted to the value of money in the present. When one is dealing in the scale of centuries (as one is forced to do when analyzing the impact of global warming) the discount rate used can lead to vast differences in the value assigned to harms and benefits. In fact, a primary difference in the analysis of two of the leading scholars on the issue of the harms and benefits associated with GHG (Nordhaus and Cline) is a function of the different discount rates they use.11

Different Definitions, Different Results If one construes CHM to refer literally to an inheritance, three primary variable factors can be applied to each definition. To put it in other words, there are three questions which one would ask about any inheritance. First is the question of entitlement: Who, or what, is the entity that is the beneficiary of the inheritance? The second question is the nature of the inheritance: What is being inherited? In reference to air pollution emission controls this would be translated into the amounts of emissions one considers as being the inheritance. Finally, there is the question of the value of the inheritance—what is the inheritance worth?12 Each of the three different definitions of CHM will lead to different answers to these questions.13 Although this chapter addresses all of these questions for each of the definitions it needs to be clear that the actual numbers used are estimates. However, the point is not the specific numbers generated but the general relationship between the different results. Almost all of the data considered here is for 1992 with the exceptions of the population rankings and the data used in the generation of the Nordhaus Optimum percentage reduction. Who Inherits? With regard to the issue of entitlement there are three reasonable possibilities. Perhaps the most obvious “possible basis for allocating quotas is simply population.


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Here, the notion is the ultimate equality-oriented rule: one person, one emissions vote. This basis has the merit of equity” (Cline, 1992, p. 353). From this perspective, all mankind would be treated equally with regard to entitlement to the CHM. This perspective would be consistent with FAIR. One could also assume that each nation receives one equal share. This position is based on the neo-realist analysis that “the world is composed primarily of sovereign states, which can be treated as unitary actors” (Paterson, 1996, p. 62). In fact, it is nations, not individuals, NGOs, or other actors, who enter into treaties. Such a perspective would be compatible with the SUSTAIN definition of CHM because nations are the organizations with the best capacity for representing their future citizensl4 and it is nations which make treaties and vote in the United Nations General Assembly (on the basis of one nation, one vote). Next, one could blend population and nationhood.15 For example, if each nation was ranked according to its population then China (with 1,165,800,000 people in 1992) would receive 167 shares (the approximate number of nations in 1992) and Iceland (with 300,000 people in 1992) would receive ten shares. Note that if only population were used then China’s share would be approximately 3,900 times greater than Iceland’s share and if only nationhood were used then they would have the same share. Taking into consideration both population and statehood might be an appropriate and acceptable compromise. This would be consistent with the ECON definition of CHM because its potential acceptability makes it more functional by recognizing the mutual interdependence of states. What Is Inherited? The second question to answer is what specifically is the inheritance. To rephrase it, which range of emissions do we consider to be subject to the inheritance? This is vitally important as “different schemes for defining the trading baseline have different consequences” (Tietenberg, 1991, p. 212). One might consider three levels— each of which relates most directly to one of the three possible definitions of CHM. If CHM is based on the FAIR perspective then all emissions over zero should be considered to be subject to the inheritance because it should be equitably and fully distributed regardless of the amount of GHG emitted. However, if one is defining CHM in accordance with the SUSTAIN view then one is only concerned with emissions above the level that the ecosystem can naturally process. All emissions up to this level (that is, all emissions of CO2 that trees and plants convert through photosynthesis) would not be considered as a part of the CHM because under SUSTAIN it is acceptable for any party to emit up to such a level. It is estimated that 1.67 billion tons (bt) of carbon are



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annually processed by terrestrial ecosystems (although there is some partitioning of such processing and the figure will change as emissions levels change). Therefore, any emission above 1.67 bt per year would become part of the CHM inheritance to be shared if SUSTAIN is used. If one ascribes to an ECON definition of CHM then the level of emissions subject to the inheritance can be determined by what one could refer to as the “Nordhaus Optimum” (Nordhaus, 1994). This is essentially the amount of carbon emissions that is economically efficient to produce because it is the point where the social marginal benefit of reducing pollution equals the social marginal cost of reducing it. This Optimum is an attempt to balance the costs of emissions controls against the benefits of emissions controls (discounted over time of course). The general idea is that it would not make economic sense to spend one trillion dollars on carbon emission reductions if the total discounted benefit16 (which in this case would be the savings which would result from not having the costs associated with the climate change created by GHG) of doing so would only be one billion dollars. The United States is following this general reasoning in its current push for an international joint implementation technology transfer program whereby nations such as the United States in which it would cost (for example) $100 to reduce carbon output by one ton will offer assistance to nations such as China where it would (for example) cost only $10 to reduce carbon output by one ton.17 The Nordhaus Optimum includes CO2 and CFCs for 1995 but one can still compare its projected value for 1995 and the projected uncontrolled emission for 1995 to generate a Nordhaus Optimum of 8.8 percent lower than uncontrolled discharge (Nordhaus, 1994, p. 88). Applying this to the global carbon figures for 1992 (6,098.7 million tons) produces a rough figure of 5,562 million tons. The difference between the global carbon discharge and the Nordhaus Optimum is 536.7 million tons, the amount of carbon to which an ECON perspective will apply free market principles in order to ensure that this excess carbon is paid for. The Nordhaus Optimum is consistent with the ECON perspective of the CHM for a variety of reasons. It is based on an economic model and in fact the economic logic behind it seems consistent with the paradigm of economic efficiency currently dominant in much of the world. It generates a higher number than either FAIR (zero) or SUSTAIN (1.67 billion tons) which means that a smaller amount of pollution must be paid for. While this may seem like a cynically appeasement-oriented reason it is unlikely that nations using more than their share (however that is defined) of the CHM are going to accept financial responsibility for the large monetary obligations to which either the FAIR or SUSTAIN perspective would lead. Finally, with improvements in emissions reductions technology (to which the tradable discharge system discussed infra would contribute) the Nordhaus Optimum could also drop over time.


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What Is It Worth? The third question one would ask regarding any inheritance is value. In the case of atmospheric emissions this translates into the issue of what method is used to determine how much the “polluter should pay.” In keeping with the analytic framework established here, there are three possible ways of determining the value of the right to pollute, each of which is consistent with one of the different definitions of CHM. If one believes that the purpose of CHM is to help ensure that there is a fair and egalitarian distribution of common benefits (that is, FAIR) then the focus would be on the benefits of polluting. In other words, one would look only to the economic advantage that polluters receive by virtue of their polluting (ignoring the potential damage atmospheric pollution could create) and seek to distribute that advantage in accordance with FAIR distribution principles. In determining what the benefits of being able to pollute are, one can look to projected estimates of the costs to the economy if carbon emissions were reduced.18 Such “estimates vary a lot . . . this is because of different research approaches, different assumptions, data, and the like. But it also reflects the inherent difficulty and uncertainty of doing studies that try to extrapolate well into the future” (Field, 1994, p. 437). In reviewing a number of studies in this area one author estimated that “at the most summary level, then, a carbon reduction of x percent will require a reduction of GNP by 0.04x percent, caused by an energy reduction of 0.5x percent in combination with an output elasticity of energy of 0.08x” (Cline, 1992, p. 191). Since the FAIR perspective considers all emissions as part of the inheritance this would mean that x in the equation would be 100 and therefore the value of being able to emit carbon domestically is 4 percent of GNP. Making a leap from gross domestic product to gross world product (GWP) one reaches a figure of $21,850,000,000,000 for 1992 and the value of being able to emit carbon could therefore be estimated at $1,024,000,000,000. The next perspective from which to define CHM is SUSTAIN. In determining the value of the inheritance, SUSTAIN suggests that one look to the harm caused19 and apply what is known as the polluter-pays or full-cost rule. The polluterpays rule is based on the idea that a party has a “property rights claim . . . equal to the damage caused” (Susskind, 1994, p. 89). The full-cost rule is a variation that states, “all users of environmental resources should pay their full cost. Those using the environment as a waste repository, for example, would be presumed responsible . . . for restoring environmental resources damaged beyond some de minimus amount and for compensating for damage caused . . . This principle is based on the presumption that humanity has a right to a reasonably safe and healthy environment. Since this right has been held in common for the stratosphere . . . it



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has been involuntarily surrendered on a first come, first served basis without compensation” (Tietenberg, 1991, p. 213). There are two ways of applying the damage component of SUSTAIN to CHM—either pay for the damage caused or for the restoration of the environment. The difference between these two types of costs is illustrated by the example of strip mining on a piece of land originally worth, for instance, $10,000 which is now only worth $2,500 and which could be restored to its original condition for $20,000. In this case the compensation could be construed as payment of $7,500 to the owner of the land or as paying $20,000 to restore the land to its original condition.20 It would be compatible with SUSTAIN for the value of the inheritance to be the cost of processing GHG such that they have no greenhouse effect. Alternatively, the SUSTAIN analysis of CHM could focus on compensation for the damage created by GHG provided such damage is considered to include harm to the future in addition to that of the present.21 In discussions of the damage which a doubling of atmospheric CO2 will produce Nordhaus suggests that it would be 1.33 percent of GWP per year (Nordhaus, 1994, p. 55) with Cline agreeing that it would be between 1 and 2 percent of GWP per year22 (Cline, 1992, p. 132). It is also estimated that “even if all man-made emissions were to stop virtually immediately . . . the equilibrium amount of warming already committed amounts to about 1.7°C. Moreover, the IPCC estimates that even if an aggressive program of ‘accelerated policies’ were adopted by the year 2100 ultimate warming of a central value of 2.4°C seems almost inevitable” (Cline, 1992, p. 35). Making the, perhaps overly optimistic,23 assumption that total atmospheric CO2 will be held at double the current levels, we may, not unreasonably, assign a damage24 inheritance factor valued under a SUSTAIN perspective (based on the amount of CO2 each nation emits) at 1.33 percent of GWP. Cline has also analyzed CO2 emission abatement costs (Cline, 1992, p. 229). He concludes that reductions in CO2 emissions of between 20 percent and 90 percent from the 1990 level would, by the year 2025, range from zero cost (because a 20 percent abatement could be achieved by increasing energy efficiency with current technologies which would create savings in costs of energy use) to 3.2 percent of GWP (Cline, 1992, p. 229). The reduction from the 1991 level of emissions of 6.19 bt to the 1.67 bt which can be naturally processed would be a reduction of over 100 percent from the current baseline of emissions. This reduction would require a consistent annual commitment of over 3 percent of GWP. Combining the damage factor and the abatement factor, one can produce a (very) rough damage/abatement factor of 2.2 percent of GWP. Next, we can ask what is the economic, efficient, and functional method of determining the value of the inheritance. The ECON approach is to let the market


14


make the determination through a transferable discharge permit system. Such a system creates a new type of property right which consists of a “permit to emit pollutants. Each permit entitles its holder to emit one unit (pound, ton, however the permit is calibrated) of the waste material specified in the right . . . These discharge permits are transferable; they can be bought and sold among anybody allowed to participate in the permit market, at whatever price is agreed upon by the participants themselves” (Field, 1994, p. 248).25 The United States has been using the transferable discharge permit system for a number of years. It was particularly successful “in 1985 when it gave oil refineries two years in which to cut the allowable lead content of gas. Refineries received quotas of lead, which they could trade with each other. The effect was to let them phase in the cut in lead at their own pace. Half of all the refineries took part in trading . . . The EPA’s attempts since 1974 to allow companies to trade airpollution permits have been less successful” (Cairncross, 1992, p. 102). An international transferable discharge permit system is especially attractive. Such a system “[would promote] cost effectiveness . . . because those sources that can reduce their emissions most cheaply choose to do so, selling the resulting emission reduction credits to others . . . the mandated improvements are achieved more quickly with trading and with less litigation . . . [such a system would] facilitate a more cost effective allocation among nations, but it would leave the valuation of these transfers to what is now a global market place . . . [and] would facilitate the movement of credits from those countries with the capacity to create them most cheaply to those countries faced by very high costs of additional control” (Tietenberg, 1991, pp. 210–220). As Cline (1992, p. 351) has described it, “if a country has a quota allocation that is small relative to its demand, its firms will bid to purchase quotas from other countries. Other countries will sell a portion of their quotas to the point where the marginal cost of cutting back a ton of carbon emissions at home equals the price of a ton ‘exported’ through the sale of an emissions permit. International abatement will thus be pursued at minimum cost, in a manner similar to the outcome under taxation and in contrast to the result with a rigid, non-tradable quota system . . . tradable permits minimize overall abatement cost by allocating the cutbacks to the countries where marginal costs of emissions reductions are the lowest.” This is why Cairncross (1992, p. 105) has noted that “America is eager to extend the idea of tradable permits into a completely new field: that of international environmental agreements. In particular, it wants an international trading system for greenhouse gases as part of a deal to tackle global warming.”26 As discussed above, the United States is advocating a joint implementation technology transfer program which would be based on similar goals but would not require as



15

extensive a multilateral agreement as an international trading permits regime would. Any transferable discharge permit system must have an upper allowable limit of emissions. Although one could simply set the limit at the Nordhaus Optimum and prohibit any emissions above this limit, this is unlikely to be agreed upon since it would require large reductions in emissions. However, whatever number is internationally agreed upon, perhaps in accordance with the Convention on Climate Change (and there is a possibility that this could be a “return to ‘earlier’ emission levels by 2000” (Susskind, 1994, p. 174)), it could serve as the upper limit for determining the acceptable levels of emissions. It would therefore be possible to have discharge permits distributed to nations in proportion to their actual carbon emissions27 (their projected emissions multiplied by the percent ratio of the Nordhaus Optimum to total carbon discharges) up to the Optimum, and then have an additional set of discharge permits distributed in accordance with the “blend” system proposed above. For the purpose of this analysis we can look to an Optimum of 91.2 percent of Nordhaus’s projection of 1995 uncontrolled levels (Nordhaus, 1994, p. 88) and consider the 536.7 million tons (6,098.7 mt .088) as being subject to the transferable discharge permit system. Because the value of discharge permits would be unknown until one actually instituted the system, one is forced to use the next best thing, the estimated amount of a carbon tax which would reduce carbon emissions by 20 percent; $40 per ton, for this analysis (Cline, 1992, p. 369). We can now calculate the actual numbers to quantitatively compare the differences among using a FAIR, SUSTAIN, or ECON perspective to define CHM (see Table 1.1). Perhaps not surprisingly, quite different results are obtained with the different perspectives. For example, FAIR leads to China being owed over $135 billion; SUSTAIN results in China owing close to $91 billion; and ECON indicates that China would have to purchase over $2 billion worth of discharge permits to be able to continue to emit carbon at the same rate (although if it could make a 20 percent reduction in emissions it would have over $3 billion worth of discharge permits to sell). Under FAIR Indonesia receives $32 billion and under ECON it should earn over $70 billion but under SUSTAIN it is liable for only $5 billion. Under FAIR Mexico receives over $4 billion; under SUSTAIN it owes over $10 billion; and under ECON it owes $81 billion. Somalia, however, receives money under all three perspectives—almost $2 billion with FAIR, over $1 billion with SUSTAIN, and close to $125 million with ECON.28 What these extreme differences suggest is that if CHM is to continue to evolve from a soft law into a hard law, making the leap from a general normative principle vaguely referred to in the preambles of environmental treaties to a methodology used to determine specific commitments, then we need to know what CHM means.

728.4/11.94 1332.6/21.85 50.4/0.83 59.3/0.97 90.9/1.5 239.8/3.93 79.2/1.3 60.2/0.99 0.004/0.00007 0.036/0.0006 0.044/0.0007 0.49/0.008

C emil/% total

3

1533.8 336 243.9 198.2 115.9 106.1 54.9 21.3 11 0.91 0.52 0.4

Ent-FAIR

4

6

805.4/$135,226.70 996.6/$167,329.10 193.5/$32,488.70 138.9/$23,321.30 25.0/$4,197.50 133.7/$22,448.20 24.3/$4,078.00 38.9/$6,561.30 11.0/$1,846.20 0.8/$146.70 0.48/$79.90 0.09/$15.10

10 10 10 10 10 10 10 10 10 10 10 10

(ent-act)/ FAIR val(mil) Ent-SUS

5

$91,236.80 $167,970.20 $5,130.80 $6,261.10 $10,274.30 $29,184.60 $8,788.40 $6,375.40 $1,270.00 $1,265.40 $1,264.40 $1,198.30

SUS val (mil)

7

664.3 6.23 1215.3 6.23 46.0 6.17 54.1 6.17 82.9 5.96 218.7 5.90 72.2 5.36 54.9 4.06 0.00365 1.34 0.0328 1.34 0.04 0.421 0.0447 0.383

Ent-ECON

8

$2308.40 $4442.80 $70.80 $38.80 $81.60 $608.00 $65.60 $49.60 $118.00 $53.50 $16.70 $0.06

ECON val(mil)

9

2Populations

chosen to give a wide range in terms of population, geographic location, state of development and Carbon emissions. are for 1992 from “Information Please AImanac/1993” (Houghton-Mifflin: 128–9). Numbers are in millions. 3Carbon output is for 1992 from “World Resources/ 1996–1997” (World Resources Institute: 326–7). Carbon Dioxide emission figures (in millions of metric tons) are derived by multiplying CO2 emissions by the weight of CO2/weight of C or 44 / 12 0.273. Total worldwide Carbon Dioxide emissions of 22,339.408 mt are therefore multiplied by 0.273 to give a worldwide Carbon emission figure of 6098.7 mt. 4Percentage of world population the total Carbon emitted worldwide (for FAIR). 5Gross World Product (“GWP”) $25,600,000,000,000 for 1992 (from “Information Please AImanac/1993,” Houghton-Mifflin: 128). A Carbon reduction of y% requires GWP reduction of 0.04y%; $25,600,000,000,000 0.04 $1,024,000,000,000. $1,024,000,000,000/6,098.7 mt C $167.9 ton (for FAIR). 6Amount of Carbon that the environment can annually process 1670 mt (“Climate Change of 1995, Second Assessment Report of the Intergovernmental Panel on Climate Change”: 457). Entitlement I670mt/167 states I0mt/nation (for SUSTAIN). 7GWP $25,600,000,000,000. Damage/abatement (D/A) factor 2.2% of GWP to reduce Carbon emissions from 6098.7 mt to 1670 mt; $563,200,000,000 for reduction of emissions of 4428.7 mt $127/ton for D/A. (Entitlement-Actual emissions) $127/ton (for SUSTAIN). 8Entitlement (91.2% of Actual emissions: the NO) (State Share based on relative population [1 167/based on 1982 ranking]) (536.7 mt the difference between Actual emissions and the NO)/(14,028: the total of all State shares) (for ECON). 9Value Entitlement Actual emissions $40/ton (for ECON).

1States

1165.8/25.15 225.6/5.51 184.5/4.0 150.8/3.25 87.7/1.9 80.6/1.74 41.7/0.9 16.1/0.35 8.3/0.18 0.7/0.015 0.4/0.0086 0.3/0.0065

Pop (mil)/% total

Country

China United States Indonesia Brazil Mexico Gemlany S. Africa Saudi Arabia Somalia Bhutan Solomon Islands Iceland

2

1

TABLE 1.1




17

Meanwhile, Back in the Real World . . . The natural question at this point would be whether multilateral environmental agreements are actually based on definitions of CHM and, if so, on which definitions. Two environmental agreements of the last two decades particularly well known for the strength of their respective normative foundations are the Law of the Sea Convention which was reached at the Third United Nations Conference on the Law of the Sea (UNCLOS III) and the Montreal Protocol (to the Vienna Convention for the Protection of the Ozone Layer) on Substances that Deplete the Ozone Layer (Montreal Protocol). At UNCLOS III, agreement was reached “that the minerals of the international area of the sea bed belonged to ‘mankind’ as a whole; they were not just free for anyone to take without payment in any manner they chose” (Ogley, 1996, p. 160). Discussions were initiated for “the creation of a regime to govern sea-bed mining in the interests of mankind” (Ogley, 1996, p. 158). UNCLOS III was to guarantee that “all rights in resources [outside national EEZs] are vested in mankind as a whole . . . ” (Part XI, Section 2, Article 137.2). It looks like FAIR is the normative principle at work here with a goal of making an equitable distribution of resource benefits. The SUSTAIN definition of CHM seems to be the basis for the Montreal Protocol which is to “protect the ozone layer by taking precautionary measures to control equitably total global emissions of substances which deplete it” (Preamble to Protocol). The protection of the ozone layer is, of course, necessary in order to reduce the amount of ultraviolet radiation reaching the earth’s surface and damaging life. The Montreal Protocol seems to be based firmly on the SUSTAIN value of protecting the planet for present and future generations. It has been cited as a regime which could “actually reverse in future decades the damage to the ozone layer which has occurred since the 1960s” (Porter and Brown, 1991, p. 77). A closer look at the formation of UNCLOS III and the Montreal Protocol suggests that the enunciated normative principles may not tell the whole story. It has been argued that at UNCLOS III the ultimate outcome was dictated “by the rich, potential sea-bed-mining states” (Ogley, 1996, p. 168) leading to an agreement in which the attempt to create a regime “in the interests of mankind was futile” (Ogley, 1996, p. 168). Below the surface of UNCLOS III the economics of ocean resources utilization were at least as influential as the FAIR normative value. Furthermore, the momentum for the Montreal Protocol did not develop until the chemical industry had announced cost-effective alternatives to CFCs and thus “the imposition of severe economic constraints on use by any of the largest countries could well have made sense, even aside from the question of ozone damage and actions by other nations” (Rathjens, 1991, p. 186). In other words, CFC


18


reduction was not agreed on until there were economic incentives to do so. While SUSTAIN values may have been important, underlying economic factors also played a major role in the development of the Montreal Protocol. This suggests that even those environmental agreements that at first appear to be based on discrete definitions of CHM are often the product of a blend of definitions. However, this is generally unacknowledged and not explicitly considered in the formation of agreements. There are a number of reasons why this nonrecognition could have a negative effect on environmental regimes and why having clear definition(s) would be appropriate. Lack of a clear definition means that in the formation of the agreement there are no agreed-upon general normative principles to which the parties can turn for guidance in developing specific language. Parties may also be less likely to enter into an agreement if they are uncertain as to what exactly they are getting into. Explicit recognition of the different definitions of CHM force different analyses to be undertaken and considered. More than one analysis can lead to a fuller and more comprehensive understanding of the issue. Multiple analyses can also create additional potentials for tradeoffs between the parties involved (linkage) that facilitate creative win-win situations. Once an environmental regime has been developed, clear underlying normative principles can make enforcement easier by clarifying otherwise ambiguous language. Having explicit principles underlying an environmental regime may also make it easier to extend and expand the regime since the parties know and agree on what the regime is really about and, perhaps even more importantly, because such an expansion would have moral strength. It might be valuable to have an international agreement to determine exactly what the definition of CHM is. However, the result of such an agreement would probably not be that CHM means FAIR (or SUSTAIN or ECON). Rather, one might expect a definition that combined and blended all three values and would sound something like, “the Common Heritage of Mankind means that the costs and benefits of resource use should be equitably distributed taking into consideration the needs of future generations, factors unique to each nation involved (including but not limited to population), and the economic impact of any agreement on the resource use.” Such a definition may not be overly helpful but, given the vast differences implied by the different definitions, it would be a surprise if a more narrow one could be agreed upon. However, it would be both possible and useful to 1. Have a clear understanding that there are different reasonable definitions of CHM, 2. Explicitly and transparently consider how each definition could lead to a different agreement, and



19

3. Openly and quantitatively agree on the blend of definitions—recognizing that different definitions should have different relative weights in the development of regimes targeted for different types of environmental harms. This would require an interdisciplinary approach to the formation of environmental agreements. An institutional mechanism would have to be developed which could efficiently, effectively, and credibly make all of the different analyses while respecting the fact that any numbers generated are not necessarily what will be required in the final agreement but are only a component to be used in making the agreement. Numbers under all three definitions of CHM (if CHM is considered an appropriate concept to be used in the environmental regime) could be generated in a manner similar to that attempted in this paper. Then the parties to the agreement would have to agree on the relative contribution that each definition of CHM should have for that particular regime. The type of harm targeted by a specific environmental agreement is relevant to the weighting of the contributions of the different definitions of CHM. Where the targeted harm is the potential for irreversible loss of critical natural capital (such as the extinction of a species) then the SUSTAIN definition should be considered the most important. However, if the resource being protected is regenerative (such as commercial fisheries) then ECON should be given the most relative weight. Finally, when the resource is neither regenerative nor critical (such as manganese nodules—there are alternative ways to get the same minerals) then FAIR is most appropriate. Having the numbers (and their monetary implications) associated with each definition will undoubtedly affect how the parties wish to have the different definitions weighted. However, with an accepted metaprinciple on how to relatively compare the normative principles if the parties agree on the purpose of the agreement then they should be able to agree on the weighting of the definitions. Having all of the normative principles involved in an environmental regime openly and transparently on the table means that any agreement reached will be an accurate and true reflection of the interests and intentions of the parties involved.

Notes 1. A similar definitional need has arisen with regard to what is rigor (Lele, 1991, p. 607). 2. The need for specific solutions grounded on agreed-upon normative values is especially relevant in the case of an issue such as global warming because “some of the largest contributors to the problem would likely judge the direct benefits, if any, not commensurate with the costs to them, and most of those likely to reach the opposite conclusion on the


20


3.

4.

5.

6.

7. 8.

9.

10.

cost-benefit issue would have little leverage to induce accession by the major actors” (Rathjens, 1991, p. 177). The ability to effectuate agreement on this issue could also be hampered by the fact that there is differential harm from global warming postulated for different regions. However, for the purpose of developing normative principles this is irrelevant as we are essentially assuming that a Rawlsian veil of ignorance exists regarding each nation’s emissions and susceptibility to harm from global warming (Rawls, 1971). It is worth noting that this is unlikely to stabilize the global climate given the “unpleasant fact of inertia in climate change. Scientific estimates suggest that the stock of greenhouse gases in the atmosphere will lead to significant climate change even if we take stringent steps to reduce emissions” (Nordhaus, 1994, p. 189) and even “to stabilize the global concentrations of carbon dioxide . . . would not reduce the warming to which earlier emissions have already committed the earth” (Porter and Brown, 1991, p. 93). It might be noted that these three definitional approaches to CHM closely parallel attempts to define sustainable development. For example, the World Resources Institute points out that “in an attempt to make the concept of sustainable development more specific, some authors . . . stress using renewable natural resources in a manner that does not eliminate or degrade them or otherwise diminish their ‘renewable’ usefulness for future generations. Some economic definitions of sustainable development have also focused on optimal resource management by concentrating on maximizing the net benefits of economic development, subject to maintaining the services and quality of natural resources.” But many authors argue that the issue is the quality of growth and how its benefits are distributed. However, this author then goes on to suggest that establishing ownership principles over some resources, including the atmosphere, “is too difficult; the number of polluters and of those affected by pollution is too great for bargaining to be practical” (World Resources Institute, 1993, p. 2). However, neoclassical economics, sometimes disparagingly referred to as frontier economics, is criticized for suggesting a sense of unlimited resources and an infinite supply of sinks for waste disposal (Porter and Brown, 1996, p. 23). Although a very strong and engaging argument has been made by Sagoff that “efficiency has no normative claim or moral worth” (Sagoff, 1988, p. 107). I will focus specifically on CO2 because “Carbon Dioxide . . . will continue to cause the largest share of human-induced radiative forcing, that is, the retention of heat that can lead to atmospheric increases” (Chandler, 1990, p. 2) and because it is even more problematic to try and calculate the costs and benefits of non-CO2 GAG than it is for CO2. Also note that figures in this paper related to CO2 emissions refer to tons of Carbon, even though CO2 is used. To actually get the true weight of CO2 one would multiply by the factor of 3.66 or 44/12 since Oxygen has an atomic weight of 16 and Carbon has an atomic weight of 12. Another problem in applying cost-benefit analysis to the environment is the consumer surplus issue. People can easily be “confused by the fact that important goods like air and water are free or inexpensive . . . because they do not understand that the equilibrium price of a good does not measure its importance to people . . . the equilibrium price of diamonds (per ounce) exceeds the equilibrium price of clean water (per ounce). Consumer surplus for water [i.e., the benefit to a consumer of being able to buy a good at the equilibrium price as opposed to being unable to buy it at all], however, is much larger than the consumer surplus for diamonds; in that sense, water is more valuable” (Stockman, 1996, p. 234). Or, as it has been more eloquently



11. 12.

13.

14.

15.

16. 17. 18.

19.

21

put, “the labor of nature is paid, not because she does much, but because she does little. In proportion as she becomes niggardly in her gifts, she exacts a greater price for her work. Where she is munificently beneficent she always works gratis” (D. Ricardo quoted in Siebert, 1995). Such issues are associated with all environmental problems but GAGs add their own unique conundrums because climate change is “the prototype of the global commons issue. All nations are affected by the earth’s climate system, and broad international cooperation is required to mitigate the threat of global warming” (Porter and Brown, 1991, p. 92). Nordhaus claims that “no issue has raised more concern and confusion than the question of the appropriate discounting of the future” (Nordhaus, 1994, p. 122). Actually there is another question to ask about an inheritance—who died? I am assuming that the decedent, that is, the entity responsible for making payments in accordance with the inheritance, is the nation where the emissions are taking place. Although the emitters are most probably corporations and individuals, such emissions are being done under the laws and control of nations and it is up to them to be responsible for same. It is perhaps not surprising that there are different quantitative methods of interpreting CHM. As one commentator has cautioned with regard to discussing global constraints related to the environment, “We should not expect to discover a single, universally applicable formula” (Ogley, 1996, p. 167). Since the total monetary value of the entitlements under SUSTAIN is negative, such monies could be paid to an internal organization with the responsibility to reduce the effects of GHG (though nations with a positive entitlement could receive it and be responsible for their own damage/abatement activities). Of course, there are other ways of considering entitlement. For example, Cline (1992, p. 353) suggests that a nation’s GDP could be a potential basis for a quota allocation. This approach acts to partially “grandfather-in” existing CO2 emissions since they are generally correlated with national GDPs. Alternatively, one could use an entitlement scale similar to the “global assessment scale laid down by the U.N. General Assembly, which rates countries according to a combination of economic, geographic and demographic criteria” (Sand, 1991, p. 235). However, for simplicity’s sake discussion is limited to those possibilities that seem most clearly related to the different definitions of CHM postulated herein. Admittedly benefit is calculated in an economic sense and does not include other factors such as spiritual, aesthetic, or moral benefits in emissions reductions. Conversation with Undersecretary of State for Global Affairs, Tim Wirth, on April 7, 1997. It should be noted that this is not the same as the cost of creating CO2 abatement measures but instead is the loss to the economy that would result after abatements are made. It is, in other words, the overall benefit received by an economy by virtue of being able to emit CO2. The fact that the overall economy benefits from CO2 emissions also lends support to the idea that it is appropriate for a nation to be the decedent, that is, the entity who is responsible for making payments in accordance with the inheritance. The harm component of the SUSTAIN value has a (relatively, for environmental issues) long historical tradition in environmental treaties and laws. This international version of the “Golden Rule” acquired some global credibility during the Pax Britannica of the 1800s in which “the view that you should not seek your advantage by causing detriment to other peoples became generally the accepted policy of the [British] empire”(Collis, 1946). For example, since the creation of the Rhine Commission in 1815, international river commissions have developed more than 2,000 treaties regulating rights to shared waters (Imber, 1996, p. 141) and the only principle that has emerged from all these treaties is that


22


20.

21.

22.

23.

24.

25.

countries should “avoid harming downstream states” (Porter and Brown, 1991, p. 157). The passage of the National Environmental Policy Act of 1969 by the United States was also a clear affirmation of this principle as it directed U.S. federal agencies to support international cooperation in “anticipating and preventing a decline in the quality of mankind’s world environment” (Porter and Brown, 1991, p. 24). But it was the first U.N. Conference on the Human Environment held in Stockholm in 1972 during which this principle was most clearly and specifically articulated. Principle 21 of the Stockholm Declaration states that nations have “the responsibility to ensure that activities within their jurisdiction and control did not cause damage to the environment of other States or of other areas beyond the limits of national jurisdiction.” These areas beyond the limits of national jurisdiction are, in other words, “the global commons, such as the atmosphere and the oceans” (Humphreys, 1996, p. 216). One might argue that under SUSTAIN the company would pay for the cleanup, under ECON the land would be bought for $10,000, and under FAIR the company would pay the owner based on the profits made by the mining. One proposal has been made which would incorporate both damage and abatement costs in a surprising way; “an international fund [would] be established to which the polluting country would pay according to its assessment of the damages and the victimized land would pay according to its assessment of the costs of abatement . . . The funds collected from the two parties would then be redistributed to them for implementation of the environmental protection measures” (Siebert, 1995, p. 195). The goal of this would be to reduce the infomation asymmetries that encourage there to be an exaggeration of harms and costs of abatement. Cline also points out that “as a general rule one would expect the economic size of damage from global warming to rise more than linearly with the magnitude of the warming. The costs of 10°C warming in the very long term could thus be far more than four times the costs of the 2.5°C benchmark warming for a doubling of carbon dioxide-equivalent” (p. 72). Progress on the Convention on Climate Control, and particularly the Clinton Administration’s 1993 Earth Day Message in which the policy of stabilizing GHG at 1990 levels was proposed (Nordhaus, 1994, p. 80), suggests that such an agreement may be possible. Even though the damage to the GDP may not take place for some years, when it does it will be occurring on an ongoing basis. So if, for example, CO2 doubles in ten years and maintains that level thereafter one would be responsible for the cost of damage in the year 2005 in 1995, for $2006 billion in 1996, etc. Although this does not properly discount the value of the damage, one may, very roughly, assume that the discount factor may be balanced by the damage caused between each of the first ten years and their later counterparts. The theoretical underpinning for the TDP system is the Coase theorem which states that if exclusive property rights to the environment are defined and transferable with no transaction costs then a bargaining solution among different users of the environment will result in a Pareto-optimal allocation of the environmental resource which is independent of the initial allocation of property rights (Siebert, 1995, p. 99). However, the exact Pareto-optimal allocation one ends up with will be a function of the initial allocation of property rights which is why “the very first step of the program is one of potentially great controversy: what formula to use to make the original distribution of emission rights” (Field, 1994, p. 253). In whatever method the original allocative system is agreed upon, the closer one comes to a perfect Coase market the better the system will operate.



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26. If such an internal TDP system could effectively be established one can imagine that “under such a system, Japan (which would find it expensive to reduce its output of gases) might buy permits from Poland (which would find it inexpensive, as long as it had the cash that a permit sale would bring in). Or Britain’s National Power might reforest a stretch of Brazil with trees that would mop up carbon dioxide in exchange for being able to build another coalfired power station . . . best of all, a company in America making refrigerators might set up a subsidiary in India to make refrigerators there too . . . thus a system of tradable permits could, in theory, give companies with energy-efficient technologies a big incentive to transfer their technologies to less efficient countries in the third world and Eastern Europe” (Cairncross, 1992, p. 171). 27. This is a limited grandfathering-in of current emissions. Although it is somewhat disadvantageous to developing countries to the extent they do emit CO2 they may be able to make more effective reductions than developed countries ultimately giving them a positive monetary entitlement. 28. If the results are too financially onerous for developing nations one might track back 10–25 years and cumulatively make a determination of past emissions behavior which could reduce the emissions share used by developing nations relative to developed nations even further.


Y CHAPTER TWO

ALL COMMONS ARE LOCAL The Antarctic Treaty System as a Regional Model for Effective Environmental Management Gianfranco Corti

ince the Stockholm convention in 1972, environmental management has been seen as a supranational responsibility requiring collective action by sovereign states. The global nature of environmental degradation has spurred the search for universal norms and institutions to regulate the use of natural resources and ensure sustainable development on a worldwide basis. While many states have concluded functional agreements on a bilateral or regional basis, the dominant approach to international environmental management from Stockholm to Rio has favored global, U.N.-based treaty making as the main pillar of sustainability. Expressions like global commons or the common heritage of mankind—formally adopted by UNCLOS III to designate the deep seabed—increasingly shape public discourse on the environment. In the eyes of many, only those environmental regimes claiming the U.N.’s all-inclusive membership can muster the legitimacy and the operational capacity to balance human needs with the conservation of the earth’s vital resources. This chapter challenges the appropriateness of globalizing the ownership of transnational resources and thus the operational responsibility for environmental management. Contrary to conventional wisdom, I argue that the quest for global solutions to the degradation of transnational ecosystems is unworkable and theoretically ill-grounded. The belief that there exists a positive relationship between the geographical scope of international action and the utility of environmental regimes is erroneous. The relationship is actually negative.

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All Commons Are Local

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Whatever the magnitude of the challenge, collective action on the environment is more likely to produce results if and when it is limited to a level of international ownership that is less than global. The United Nations and its various agencies remain invaluable fora for the identification and discussion of global problems. It would be difficult to conceive of another organization in which all countries can express their views on all questions of national and international concern. But, whatever its merits as a global sounding board, the United Nations is culturally and institutionally ill-suited to formulate and monitor—let alone, enforce—a series of worldwide environmental regimes. Commons, in the sense of collective arrangements for the sustainable exploitation of common-pool resources (CPRs), function on the basis of bounded membership, controlled access, and a strong corporate identity. To speak of global commons is essentially a contradiction in terms, for all commons are notionally local: that is, restricted to a community of insiders. Given the practical impossibility of restricting United Nations membership and the anarchic nature of the international state-system, those who care about the environment had better shelve the search for global solutions and concentrate instead on the improvement of decentralized, sub-global regimes: local commons on a grander scale. The case of the Antarctic Treaty System (ATS) shows how a compact of diverse states, acting outside and independently of the U.N. system, can successfully preserve a vast and fragile ecosystem as an oasis of peace, cooperative scientific research, and environmental protection. It also demonstrates that the narrowness of the commons, both as social body and resource-pool, is not incompatible with either internal growth or the development of some semblance of external accountability. Since the time of its foundation in 1959, the ATS has gradually expanded its membership and competencies beyond its original mandate. While the parties to the Antarctic regime have jealously guarded their decisional and operational autonomy, they have made their actions more transparent and more responsive to the environmental concerns of outside actors. The end result is that the ATS now stands as a large local commons where collective action pays good dividends to the member-states without causing any losses or prejudice to nonmembers.

Back to the Future: The Commons as a Metaphor for Sustainable Environmental Management Environmental scientists have made frequent reference to the commons as an explanatory metaphor for either the use or the abuse of common resource pools. The man responsible for starting something of a trend on the conceptual


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significance of the commons for environmental management was Garret Hardin. In 1968, in the pre-Stockholm era of environmentalism, Hardin published an article entitled “The Tragedy of the Commons.” In it, Hardin argued that the logic of communal land holding, on which commons arrangements were based, was fatally flawed. Rational individuals, having unrestricted access to a common resource pool, would want to increase their private utility at the cost of depleting and eventually exhausting the commons. Hardin went on to advocate enclosure—that is, breaking up and privatizing the commons—as the preferred solution to what he regarded as the inevitable abuse of communal property by rational individuals.1 Hardin’s blanket indictment of the commons as a major cause of environmental degradation showed a cavalier disregard for historical reality and an egregious misunderstanding of the social and economic organization of the commons. In spite of the article’s wide echo and enduring popularity, a number of commentators were soon finding fault with both the evidence and the logic of Hardin’s argument. Against Hardin, they argued that self-organization could work and that communal land holding did not necessarily lead to overexploitation. In the management of resources that various communities considered indivisible or, in any case, not subject to the strictures of private property, the logic of the commons had often been the mainstay of efficient and sustainable usage (Ostrom, 1990; Bullock and Baden, 1977). Post-Hardin environmental scholarship on the commons, most notably the work of Elinor Ostrom, has correctly stressed the capacity of interested individuals to regulate the allocation of common resources independently of any central authority or external enforcement. But even the revisionist interpretation of the commons as an environmentally viable institution does not fully account for the bounded membership of communal resource pools. To make matters worse, the new modeling also misses the distinctiveness of the rights of commons and their complementary relationship with ownership arrangements based on the modern (and Roman) notion of private property. Historical evidence on the commons, which is particularly abundant for medieval and early modern Europe, proves conclusively that the commons thrived for several centuries on assumptions that substantially differed not only from Hardin’s tragic scenario but also from Ostrom’s more optimistic cooperative hypothesis (Bloch, 1931; Reynolds, 1984). The first assumption that needs to be true for a commons to exist is that it belong to a clearly identifiable community. In the legalistic language of Roman lawyers, a commons constitutes a res communis, not, as Hardin wrongly assumed, a res nullius. The distinction between a commons and the sort of wide-open dumping ground that Hardin envisaged is critical for understanding the inner logic and the staying power of commons arrangements. Bounded membership and



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controlled access are the indispensable structural features of each and every commons. Hardin’s conflation of commons with cesspools was a case of flat-out mistaken identity. However, Elmor Ostrom’s characterization of CPRs as a hybrid category of goods—public in terms of their provision and nonexclusiveness, yet private in the rival consumption of their flow—is also wide off the mark. Ostrom’s dubious attempt to use microeconomic theory to make sense of the commons all but ignores the social constraints and legal rules that limited the common-pool entitlement of each individual or household. In light of Ostrom’s own appreciation for institutionally robust CPRs, it is disappointing to notice her refusal to consign Hardin’s myth of the open commons to the dustbin of poor scholarship (Ostrom, 1977; McGinnis and Ostrom, 1993).2 It is critical to understand the precise nature of the rights of commons. In what sense does a commons belong to a group of beneficiaries? What stake does the community have in the joint preservation of the collective resource? The answer to these questions constitutes the second working assumption of a commons arrangement: The commoners do not own the land in full and unconditional ownership, but merely hold it in permanent use under communal governance. In their capacity as members in good standing of the local community, the stakeholders enjoy a well-defined right of usufruct over the collective resource, and are simultaneously charged with managing it through communally sanctioned norms and institutions. This sort of arrangement has been compared to a permanent trusteeship over natural resources. The analogy is well taken insofar as it emphasizes the conditional nature of the collective right of possessing the resource—a right that falls short of full ownership. However, the comparison with trusteeship is misleading if it is meant to suggest that the stakeholders hold the commons of and for some external actor who, in turn, owns the land. It is true that, in medieval and early modern Europe, villagers would often pay a customary levy to the local lord for their use of the communal land. However, even when this levy was referred to as rent, its payment only meant that the lord had a concomitant right to the commons, not a superior claim over it. The lord did not own the commons any more than the local villagers would; for centuries, he could not legally enclose or sell any part of the common resource. A formal right of possession that differed from full ownership in being conditional and necessarily shared with other claimants may strike us as odd and impractical. However, it is worth remembering that such messy rights of joint possession were commonplace in pre-modern—that is, pre-capitalist—Europe. Without the notion of multiple, concomitant holdings, the feudal system’s economic and political structure would not have been possible.


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The third assumption follows from the second and postulates that the commons, for all their institutional distinctiveness, do not stand in isolation from— much less in irreconcilable opposition to—a market-driven system of clearly defined and mutually exclusive property rights. Once again, the evidence from medieval and early-modern Europe proves the viability of a mixed system where the socially regulated management of CPRs supplemented the private exploitation of individual or family-owned property. In a balanced system of resource management, commons and private property ought to complement each other. Full and exclusive rights of ownership, be they exercised by individuals, corporations, or states, make sense when resources can be divided and property rights clearly allocated in a manner that preserves the resource’s full value. However, this is plainly not the case with a communal pasture, medieval openfield agriculture, or an ecosystem. In these instances, breaking up the whole into separate shares would diminish, and in some cases, even wipe out, the value that each user could have extracted from the resource (Young, 1994). One needs neither primitive communism nor centralized management to justify the permanence of locally based and functionally focused commons. Conversely, the existence of utility-maximizing individuals is no bar to the stipulation of communal regimes for the administration of CPRs. Under the assumptions formulated above— bounded membership, joint exploitation, and availability of their own resources outside the commons-individual utility—maximizers would find it in their best interest to exercise multiple, overlapping, and conditional rights of usage over an undivided resource pool. By the twelfth century, commons designed along the principles that I have been illustrating were an integral part of the economic and social landscape of Western and Central Europe. Their rights and obligations were recognized by custom and were beginning to be recorded in writing as the statutory law of countless local and regional communities. Beside woods and pastures, commons would typically include streams and roads as well as portions of the arable land. Contrary to Hardin’s view that rising population would bring to a boil the simmering conflict between individual usufruct and communal ownership, commons came to full institutional development in a period (1100 to 1300) of unprecedented demographic growth in the history of Europe (Reynolds, 1984). In the sixteenth century, the rights of commons came under increasing attack from the landed aristocracy. By about 1750, after a long and sometimes violent historical process, the success of the enclosure movement was complete. Except in remote mountain areas, commons had been broken up and privatized, mostly by powerful outsiders who, having won ownership of the land, turned it to animal husbandry and the intensive cultivation of speculative crops.



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The historical interest of the commons as an example of communally enforced sustainability does not automatically imply their usefulness as a model for international environmental management. While the substantive nature, if not the scale, of commons arrangements is analogous to that of transnational environmental regimes, the actors and the representation of interests is not the same. For the local model of the medieval commons to be applicable at the grand level of international relations, two additional conditions must be met. The first, an analogy between private property and national sovereignty, presents few theoretical problems. In their exclusive and unconditional nature, states’ rights of territorial jurisdiction mirror individual rights of ownership over private property. The second analogy, between individual and state actors, is more problematic. It treats states as though they were unitary actors and discounts the possibility that national decision makers might behave more like agents than principals. Despite these ontological disparities, however, state parties to a regime and individual stakeholders in a commons do face an identical predicament: selforganization in the absence of external enforcement (McGinnis and Ostrom, 1993). The analogy between states and individuals in a situation of collective action under anarchy seems plausible enough to apply the lessons of the commons to the world of interstate environmental regimes. At any rate this is the opinion of both environmental scholars and international relations specialists who have looked at the commons for inspiration. What can environmental policy makers and international negotiators learn from the commons? The first and most important lesson that emerges from an informed, contextual analysis of the commons is that a system of open and unconditional membership is incompatible with self-organization. To admit the institutional existence of global—that is, unbounded and unconditional— commons is tantamount to abdicating our collective responsibility to preserve the earth’s resources. A U.N.-based approach to treaty making for the environment, especially the search for common-heritage regimes, is the least likely to generate a spirit of responsible and enterprising partnership among sovereign states. If participation in a regime is cost-free and its benefits accrue indiscriminately to everyone— insiders and outsiders, leaders or laggards—there is no commons, only a thinly disguised, opportunistic attempt to maximize each actor’s individual utility. Given a flawed structural design, procedural reform, no matter how well thought out, will not succeed in producing an effective mechanism of social compliance. The shortcomings of the present system for global environmental treaty making are well known. Ideas are routinely watered down to the lowest common


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denominator that would satisfy every state. Free riding and noncompliance abound. No significant action can be taken except reactively, in response to a situation that has been allowed to deteriorate beyond control. To make matters worse, the decision-making machinery is lethargic and legalistic, weighed down by layers of international civil servants vying for bureaucratic control. There is general agreement that we can do better in managing the environment, but that the likelihood of improvement rests on our ability to inject greater flexibility and accountability into the system. This, in turn cannot be achieved until and unless we find a way to make all state participants to a regime feel responsible for its success. To date, the Salzburg Initiative constitutes the most comprehensive and, arguably, the most thoughtful proposal for reforming the global environmental system.3 While it accepts the principle of using the U.N. system to manage the global environment, the Salzburg Initiative’s first recommendation calls for the building of decentralized alliances on a (bio)regional basis. Effective environmental treaty making is said to be contingent on a bottom-up approach, in which coalitions of state actors sharing similar interests come together as likeminded stakeholders. This corporate like-mindedness is analogous to the communal solidarity that we see at work in a local commons. The independent actors who coalesce in a decentralized alliance fully retain their individuality. But the pull of overlapping and mutually reinforcing interests in a functional area impels them to prefer collective to individual action in that particular domain. Voluntary cooperation based on trust and generalized reciprocity becomes everyone’s dominant strategy. Decentralized alliances do not, however, expand at will, nor do they easily add up to a global coalition. In thinking that they could, the framers of the Salzburg Initiative unduly discount—in the manner of Elinor Ostrom—the exclusiveness of self-organizing and self-enforcing common-pool institutions. In sum, membership in a commons has its privileges, its requirements, and its own self-interested logic. It cannot be freely bestowed on strangers. Yet, as the case of the Antarctic Treaty System bears out, sufficiently motivated outsiders can buy their way into the club.

The Antarctic Treaty System as a Model for Decentralized Environmental Management The Antarctic Treaty System is an intergovernmental regime for the regulation of human activity and interstate relations on all lands and waters lying south of 60° S latitude. The geographical scope of the regime is huge, comprising about one tenth of the Earth’s surface, but does not extend to the number of



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sub-Antarctic islands—for example, the Falklands—which have long been the subject of bitter territorial disputes (Peterson, 1988). The system is the sum total of a series of legal instruments, norms, and institutions that have developed incrementally over the years. Its foundation stone is the 1959 Antarctic Treaty that, at the height of the Cold War, pledged the United States, the Soviet Union, and ten other states showing concrete interests in Antarctica, to the preservation of the continent as a nonmilitarized zone of peace and international scientific cooperation.4 Environmental management did not figure among the explicit goals of the 1959 Treaty but has been the focus of increasing attention since the 1970s. The instrument of choice to fill the environmental gaps in the ATS is the international convention. Consensually agreed to by the representatives of the Antarctic Treaty Consultative Parties (ATCPs)—member states with full voting rights—Antarctic conventions must in due course be ratified by the national legislatures of each ATCP. Among the ATS’s significant contributions to natural resource management, the cumbersomely named Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR), deserves special mention for introducing an ecosystem approach to the harvesting of target species. The later, and institutionally more ambitious, Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), signed by the ATCPs in 1988, has been shelved indefinitely by the refusal of Australia and France to ratify it. Its stillbirth, however, has spun the passage of the 1991 Madrid Protocol, banning all mineral prospecting in the area covered by the Treaty for a period of 50 years, and the acceptance by the original member-states of a more open and transparent model of decision making.5 From the description given above, it should be clear that the ATS is part and parcel of the current international system. Like any other intergovernmental regime, it operates on consensus and depends on the voluntary cooperation of its individual members. Furthermore, the ATS also relies on those frayed instruments of international policy making, most notably the framework convention, that bedevil rational decision making and impede timely implementation. Despite these formidable constraints, the ATS works faster and more proactively than most other regimes. Its actions are more substantive and carry far less ideological baggage than those of the United Nations. While no state, not even those that are geographically closest to the South Pole, would consider the ATS the centerpiece of its foreign policy, the Antarctic regime has managed to grow in membership, stature, and competencies. It has also shown that it can withstand with impunity a war between member states waged just outside the treaty area and a take-over attempt by the United Nations.6 The viability of the ATS as an international regime makes sense in term of the commons model that I discussed in this chapter. First and foremost, the


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consultative parties to the ATS constitute “an Antarctic community that . . . share[s] the continent and its governance” (Peterson, 1988, p. 41). Full membership (consultative party status in the language of the ATS) was originally limited to those twelve countries that had sponsored year-round Antarctic research during the 1958 International Geophysical Year. Article IX(2) of the Treaty makes the test of substantial research activity the necessary condition for any would-be member to accede to the Antarctic Treaty as a consultative party. Second, while the parties reserved to themselves the right to manage the entire area south of 60S latitude, they were careful not to divide the Antarctic commons into individually owned shares. This sort of self-restraint is all the more remarkable considering that seven of the original signatories held preexisting territorial claims to Antarctica. In addition, the two superpowers reserved the right to put forth such claims at any time. Yet, article IV froze the sovereignty issue for the duration of an open-ended agreement subject to periodic reviews. Many commentators have considered the decision to hold all territorial claims in permanent but conditional abeyance to be an unsatisfactory camouflaging of substantive differences. In reality, article IV reflects the parties’ realization that multilateral cooperation can only occur between self-interested actors who do not renounce but, as it were, reciprocally suspend their individuality for the accomplishment of specific purposes. By circumventing all questions of ownership and focusing instead on the rights of participation and self-management, the ATS gives formal expression to the functional logic of the commons. Nobody really owns Antarctica, and, contrary to the common-heritage argument, there is no good reason why anybody should. As things stand, the continent belongs to a community of interested stakeholders who are responsible for the conservation of its valuable resources. The ATS regime fits the general model of the functional, community-based commons, but its usefulness is not limited by it. Since 1959, its membership, though bounded and conditional, has managed to become more inclusive and accountable to the outside world. The seeds of inclusiveness were embedded in the 1959 Treaty. The original twelve formed an exceptionally heterogeneous coalition of states. The compact included the then bitterly hostile United States and Soviet Union, six Western allies of the former, Japan, the hard-to-categorize and soon pariah state of South Africa, and the developing but relatively well-off South American nations of Chile and Argentina. Internal differences between claimant and non-claimant states worked at cross purposes with more “normal” coalitional patterns based on ideology, history, or the level of economic development. From the beginning, the consultative parties formed a club of self-appointed guardians of Antarctica. However, the exclusiveness of the group was tempered by the specification of objective criteria for



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admission and by an open system of access that permitted any state to apply for membership. The Antarctic Treaty was also notable and innovative in setting up a twotiered system of membership. Participation in decision making was reserved for consultative parties who had: (a) signed the original treaty or later acceded to it; and (b) demonstrated an “interest in Antarctica by conducting substantial scientific research there, such as the establishment of a scientific station or the dispatch of a scientific expedition” (Antarctic Treaty, art. IX(2)). A lower level of membership, nonconsultative status, was recognized for states which had acceded to the Treaty but, for whatever reason, had not been able to meet the requirement of substantial scientific activity. Before 1983, when negotiations on CRAMRA, the mineral convention, began, nonconsultative members (ATNCPs) were completely shut out from the decision-making process since they could neither vote nor attend the consultative meetings of the ATS. Partly in response to the U.N. General Assembly’s attack on the exclusiveness of the Antarctic regime, the consultative parties decided in 1983–84 to allow the ATNCPs to attend consultative meetings and negotiating sessions on resource conventions. Given the ATS rule of consensus decision making, the ability to participate in the discussions now gives the ATNCPs a not-inconsiderable say in the governance of the Antarctic (Peterson, 1988; Laws, 1990; Beeby, 1991). A further characteristic that explains the ATS’s ability to grow beyond its original mandate, respond to challenges, and take preventative action on the environment is its structural and procedural reliance on cooperative scientific research. The origins of the Antarctic Treaty lie in the International Geophysical Year of 1958. Because of its success, the participant states determined to institutionalize a liberal scientific regime based on freedom of movement and shared information. While the importance of security and environmental concerns has varied through the years, the promotion of science has remained the ATS’s constant preoccupation. Science, or rather its pursuit, underlies the whole structure of the regime, since scientific research is the requirement for full participation in the ATS. This is, as Oliver Schram Stokke has pointed out, an activity criterion for membership: Antarctic rights and responsibilities depend on what people do there rather than ex-ante considerations of state power or national identity. Procedurally, science is the engine that drives the system forward. SCAR, the Scientific Committee on Antarctic Research, functions as the advisory body to the consultative parties. The close working relationship between SCAR and ATS is essential to the effective management of Antarctica. Yet SCAR, as an organ of the International Council of Scientific Unions, retains its institutional independence from the ATS and the politics of intergovernmental decision making. Being a nonpolitical body made up of international scientists, SCAR can present


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all parties with the full spectrum of scientific evidence on Antarctica. By relying on SCAR for issue definition and objective fact finding, the ATS has avoided the danger of turning Antarctica into yet another battleground for advocacy science.

Recommendations The success of the Antarctic Commons supports the case for the viability of other decentralized environmental regimes. The robustness and adaptability of the Antarctic regime cannot be imputed to common geopolitical interests. The member states share neither common interests nor a single regional identity. Nevertheless, they have demonstrated a commitment to put their differences aside and act constructively in Antarctica for the preservation of that continent. The lessons of international cooperation in Antarctica can be distilled into six design principles that will lead to the formulation of more effective environmental treaties and policies. Ideally, the implementation of these principles will increase our collective ability to upgrade the quality of environmental protection across national borders. Lateral Regime Building International regimes work best when collective action is channeled into discrete, issue-oriented sectors. When hammering together an environmental treaty, international negotiators should never lose sight of the potential for a cooperative regime to expand sideways into adjacent but distinct sectors. The process of functional spill-over takes place at least as easily horizontally as it does vertically. The convention-protocol schema can be used to ratchet up over time the quality and the impact of framework agreements that had been agreed to only as toothless declarations of principles. There is, however, another way to allow for regime growth. Treaty makers may want to design conventions that are more explicit in spelling out commitments, but that purposely refrain from covering more than two or three narrowly defined issues. If the ATS experience is any guide, leaving obvious gaps in the range of subjects that a convention might cover will put pressure on the parties to add new substantive planks to the original regime. Successful cooperation in one area should lead to collective action into other domains not originally conceived as subjects of collective action. The extension of cooperation would respond to the psychological phenomenon of social learning whereby people tend to replicate successful behavior that has worked in the past regardless of the situation.



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Valuable Membership Under no circumstances should full membership in the organization be made freely available. The regime must have clear, if variable, boundaries separating participants from nonparticipants. Admission should come at a price, to be measured objectively as the ongoing performance of pro-environment behavior that imposes some cost on the member state. While a differential scale may be agreed upon to offset the lesser ability to pay of poorer countries, no state must have the benefits of membership bestowed upon it as a costless entitlement. Restricting access to only those willing to pay would make membership look more valuable to its members and generate a sense of individual and collective commitment to the success of the organization. On substantive grounds, a membership fee or litmus test would also narrow the range of concrete interests represented in the regime. This, in turn, should speed up decision making and increase its efficiency. Nondiscriminatory and Nonconventional Groupings To promote global environmental welfare, treaty designers should set up ecoregional alliances that, while internally cohesive, do not dump on the outside world. Intergroup discrimination can be a serious problem with conventional trade blocs that tend to pursue a competitive strategy of relative gains against the rest of the world. Experimental social psychology research on minimum groups shows that, even when corporate identity is minimal, in-group favoritism and out-group discrimination is the norm (Mercer, 1995). To offset, or at least minimize, the tendency for an eco-regional alliance to seek relative environmental gains, the alliance must be kept open to all qualified applicants regardless of their geopolitical affiliation. Outsiders should be able to join the in-group at any time, provided that they meet the functional criterion for admission. Cultural, political, and economic heterogeneity within the group should be seen as a source of creativity and as a means to undercut the centrifugal pull of traditional global alignments (for example, North vs. South; East vs. West). Transparency and Accountability to the Outside World Clearly defined environmental responsibility does not mean full and unconditional ownership of natural resources. Policy decisions should be taken by member states under the scrutiny and with the advice of looming outsiders: NGOs, international organizations, and at least some other state actors (Stokke, 1991). These parties—selected on the basis of their technical expertise and substantive interest in the regime—should be granted formal observer status to the meetings of the member states. Their input would improve the quality and the transparency


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of the decision-making process. NGOs could also play a crucial role in monitoring compliance across and within national borders (Susskind, 1994). Concerning state actors, treaty makers may want to expand international participation by granting different levels of memberships to various states on the basis of what they could contribute to the regime. In any case, decision-making power (that is, the right to vote) should be reserved for only those states that are full members to the regime. Inquisitorial Fact Finding and Monitoring Negotiating international environmental treaties is hard enough without having to choose between selective and competing presentations of the available evidence. Questions of environmental management typically involve high levels of technical complexity and scientific uncertainty. Diplomats are held hostages to partial and tendentious interpretations of the facts by partisan advocates. Those familiar with the Anglo-American system of law would recognize in advocacy science the procedural model of the adversarial trial system. In an AngloAmerican court of law, there are two dueling sides, picking certain evidence to present and slanting it at will to support their mutually exclusive cases. It has been pointed out that “the adversarial system encourages a selective, biased approach to the gathering, interpretation, and presentation of evidence” (Zimbardo and Lieppe, 1991, p. 293). Advocacy science uses the same adversarial procedure for researching, presenting, and monitoring the scientific evidence on which environmental choices should be made. As an added complication, environmental negotiations often involve more than two sides fighting to accredit their version of the truth. The struggle resembles more a melee than a duel. By contrast, the inquisitorial model of legal procedure, practiced in Continental Europe and her former possessions, charges impartial representatives of the court with investigating the facts of the case. The inquisitorial model thus encourages a “disinterested, objective, and systematic appraisal of evidence” (Zimbardo and Lieppe, 1991). Clearly, the second procedure would provide environmental decision makers with clearer and more reliable information than they could glean from an adversarial process dominated by scientific advocates. By entrusting the collection, presentation, and monitoring of scientific evidence to an independent body of international scientists, SCAR, the ATS has managed to place decision making on a much sounder factual footing than most other environmental regimes. Any environmental regime that wants to maximize the utility of expert opinion for policy formulation should be geared to a systematic, nonconflictual system



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of inquiry broadly representative of scientific opinion. In sum, make science play the role of the inquisitor! Decentralized Self-complying and Self-enforcing Alliances The problem of self-organization under anarchy is a vexed question of both sociological analysis and international relations theory. The best approach is based on practical observation: Sovereign states are capable of cooperating of their own volition in the absence of either a supranational authority or an external power that would force them to do so. In practice, sovereign states will be willing to take collective action if the conditions for such cooperation exist in the present and will remain in operation for the foreseeable future. As one would expect, the greater the benefits that a state might derive from a multilateral endeavor, the more appealing collective action will appear to that state. However, the cost-benefit calculations of each state are not independent of situational considerations. As Elinor Ostrom has argued in the case of small-scale CPRs, credible enforcement is crucial in fostering a constructive atmosphere of contingent quasi-voluntary compliance among fellow CPR users (Ostrom, 1990, pp. 94–100). An appropriator who favors cooperation but fears that others will be able to cheat with impunity faces a powerful incentive to defect. While freely made, the decision to collaborate is only quasi-voluntary: it is contingent on the rational expectation that one’s partners will generally refrain from acting opportunistically. In the second recommendation above, I have stressed the importance of fostering in each member state a feeling of corporate responsibility for the transnational regime. I have laid particular emphasis on the psychological and organizational importance of setting clear boundaries that limit participation in environmental regimes to a self-conscious community of individual stakeholders. I would add here, following Ostrom’s model of quasi-voluntary compliance, the need to embed reciprocal monitoring into the appropriation routine of the member states. Inspection, reporting, and the assessment of eventual penalties against rule breakers should not be entrusted to supranational observers as is the case with the United Nations and most other international organizations. On the contrary, the task of policing the agreement should be carried out directly by the national appropriators serving, as it were, as each other’s proctors. Besides encouraging compliance, a system of participatory communal policing will be the cheapest and most effective means of providing all members with credible information on both their partners’ behavior and the current state of the CPR. Barring radical changes in the nature of the international system, U.N.-based regimes could scarcely be expected to serve as the most effective basis for decentralized self-monitoring and self-enforcement. Global regimes lack both a strong


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sense of community and the institutional mechanisms that would allow embedded mutual surveillance to be built into the process of using the commons. Among intergovernmental compacts, it is eco-regional alliances in the style of the ATS that—by virtue of their limited membership, functional orientation, and bureaucratic streamlining—will be most likely to capitalize on the collaborative potential of self-monitoring and self-enforcement routines. In a decentralized eco-regional community, the sum of organizational and socio-psychological forces would work to produce the highest level of proactive compliance. The national interest of each state would be best served by the joint pursuit of an agreed upon and specifically targeted collective agenda. Direct accountability to one’s partners will increase trust in each other and in the general fairness of the regime. Finally, shaming would add up to a more painful deterrent against free-riding than in more bureaucratically centralized, unbounded regimes of the U.N. variety.

Eco-regionalism Beyond the ATS This chapter has presented a rationale for favoring a regional approach to the solution of global environmental problems. Borrowing from the historical model of the commons, the chapter has detailed the viability of collective governance within a functionally defined community of stakeholders. Boundless or open-ended commons are a contradiction in terms because clear boundaries define the resource-pool, its users, and the rules of appropriation. All commons are notionally local. None can be operationalized on a global scale without destroying both the resource pool and the potential for collective action. The case of the ATS demonstrates that it is possible for a large regional commons to maintain a high level of internal cooperation without adding to the existing asymmetry of the international system. What is less clear is the extent to which the positive example of the ATS can be replicated through the multiplication of similarly constructed ecoregional regimes. The eco-regionalism of the ATS is very different from the interest-based, value-laden, and tendentially discriminatory regionalism of the conventional blocs. If carried out by political and economic partners, regional cooperation on the environment can all too easily play out as a zero-sum game between competing groups of nations. The 1984 OECD draft regulation on the transboundary shipment of hazardous waste is a case in point. The proposal expressed the greater ability of industrial nations to take positive action on the environment than the full membership of the United Nations. However, tightened waste control within the OECD would only have helped to redirect the flow of hazardous material from



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the North to the South. Opposition to the OECD draft regulation by developing countries led to its replacement by the milder but universally applicable Basel Convention. Though less stringent, a global approach to the shipment of hazardous waste proved more efficient than a regional solution that would have imposed substantial externalities on nonparticipants (Sand, 1991, pp. 247–248). As explained in recommendation number three, the danger of intergroup discrimination is minimized by the creation of eco- or bioregional commons whose membership cuts across traditional alignments. The ATS is a striking example of a nonconventional grouping of states that transcends political, ideological, or economic divisions. However, in a fractious international system, nontraditional environmental compacts are neither common nor easy to assemble. To date, only UNEP’s regional sea agreements resemble the ATS in both their diverse membership and functional bioregionalism. Despite the encouraging example of the Mediterranean Action Plan, it remains easier to bring together allied countries that share common interests, values, and a pre-existing habit of collaboration than estranged neighbors. As a form of globally sustainable environmental management, regionalism thus faces a legacy of poor team selection. Its most willing recruits do not spontaneously line up in the sort of balanced and nondiscriminatory formations that would be most likely to advance universal welfare. While internal heterogeneity raises the global utility of a regional environmental regime, the differences between the parties in terms of individual identity and outside interests may also increase the chances of stalemate. If the ATCPs are so different from each other to constitute, in terms of membership, a mini-United Nations, what makes the ATS a qualitatively more efficient organization than the United Nations? A smaller membership clearly helps in making self-organization work. So does an issue-specific, as opposed to a rhetorical, focus. But the structural feature that is most conducive to self-organization is operational decentralization. What undercuts the United Nations from actually taking, as opposed to promising, collective action is its dependence on bureaucratic management and supervision of operations. Bureaucratization is, of course, a form of centralization designed for the administration of unitary states; it is spectacularly ill-suited to decentralized governance. The success of the ATS rests in large measure on the congruence between its diffuse system of decision making and the equally diffuse means and procedures to implement those decisions. Collective action can be sustained, even in very sizable commons, if the principals are given ownership of and full responsibility over the entire process of producing and appropriating joint benefits. Finally, is the appropriateness of a regional approach a function of the type of environmental issues that each regime is concerned with? The ATS is a forwardlooking resource-conservation regime. Its most important planks, in particular the


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moratorium on minerals extraction, oblige its members to refrain from reaping some future gains that, though likely, are as of yet uncertain. Unlike a pollutionabatement regime, the ATS does not ask the member states to absorb an actual economic loss in the expectation of future gains. If so, that is, if appropriate agreements are issue specific, then does a relatively painless conservation regime mark the upper limit of the eco-regional cooperation that can be expected between nontraditional partners? Although a degree of caution is needed in answering this question, I think that more costly regimes can be managed productively and without defection on a regional basis. The Mediterranean Action Plan is one example of a functional partnership where neither enmity nor the high cost of the enterprise has stopped willing neighbors from taking action, jointly and individually, for the preservation of a regional CPR. The Mediterranean Action Plan brings us back, after a long detour through Antarctica, to the neighborliness of the pre-modern commons. Our neighbors are not necessarily our best friends. We may hold some of them to be among our worst enemies. Nonetheless, it is among neighbors—not between strangers or friends—that decentralized collective action works best.

Notes 1. According to Hardin, the only alternative to enclosure is coercive resource allocation by an external authority: either the free market or an authoritarian state! See G. Hardin, “The Tragedy of the Commons,” 1968. 2. Ostrom’s first design principle for a robust CPR calls for both clearly defined boundaries and rights of usage limited to specific individuals or households. The principle seems incompatible with a conception of CPRs where exclusion is, if not altogether impossible, at least difficult and costly. 3. For a succinct analysis and presentation of the Salzburg Initiative, see Susskind (1994, pp. 122–39). 4. The original signatories to the Antarctic Treaty were: Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the United Kingdom, the United States, and the Soviet Union. 5. The second point is emphasized by David Laws as CRAMRA’s main contribution to the ATS. See “The Antarctic Minerals Regime Negotiations,” in Susskind and Breslin, eds., (1990, pp. 121–49). 6. The war was fought in 1982 by Argentina and the United Kingdom for sovereignty over the Falklands/Malvinas. The U.N. challenge to the legitimacy of the Antarctic regime came in the early 1980s and was led by Malaysia.


Y CHAPTER THREE

INTERNATIONAL ENVIRONMENTAL NEGOTIATION A Strategy for the South Adil Najam

his chapter evolves around the premise that North-South environmental negotiations, especially as exemplified at the 1992 United Nations Conference on Environment and Development, are increasingly adversarial and the reigning confrontational attitude amongst negotiators from both sides threatens to hinder, rather than help, the achievement of environmental treaties that are fair, efficient, and stable. The chapter argues that an opportunity exists for the South to formulate a new strategy for international environmental negotiations—built around its own experience and around the principles of negotiation theory—that could better serve the realization of its environmental and developmental goals. This chapter addresses the issue entirely from the perspective of the South. The first section describes the South’s experience in international environmental negotiations since the 1972 United Nations Conference on the Human Environment and outlines the perceptions, fears, hopes, and interests that the South brought to and took away from these negotiations. The section concludes that the principal and unchanged interest of the South has been development and a better standard of life for its people. Its principal fear, that the North is using environmental issues as an excuse to pull up the development ladder behind them, has also not been allayed through two decades of environmental diplomacy, nor has its growing frustration at its own failure to make any substantive gains towards its cherished goal of development. The second section speculates that the

T

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New International Economic Order [NIE(co)O] movement of the 1970s is today being converted into a call for a New International Environmental Order [NIE(nv)O], and that the South’s positions, interests, fears, and hopes in this emerging movement remain exactly the same as during its predecessor. The final section proposes a strategy for the South that may make its experience during NIE(nv)O more fruitful than during NIE(co)O. The recommendation is for the South to rethink its negotiation strategy—which till now has been informed only by 500 years of accumulated anger and tries to simultaneously invoke the North’s guilt and its generosity—in light of negotiation theory. The strategy being proposed for the South in this chapter can be most simply described as: “Stop feeling angry at the North and sorry for yourself.” This eight-point strategy recommends that the South should focus on interests, not positions; redefine the power balance; be hard on the issues, not on the people; redefine the international environmental agenda; organize itself; develop its constituency; clean up its own act; and remember that winning is not important, but good agreements are. It is argued that the adoption of such a strategy would not only better serve the true interests of the South, but would lead to a more productive international environmental negotiation regime and thereby would also be better for the North.

The South’s “Bruised Optimism” The United Nations Conference on Environment and Development (UNCED, also known as the Earth Summit), held at Rio de Janeiro in June 1992, had been billed by its proponents as “our last chance to save the Earth” (see Thomson, 1992) and was seen by its critics as “a carnival of dunces” (Smith, 1992). A favorite description among journalists and participants alike was to refer to it as a “manyringed circus” ( Johnson, 1992). If it had been a circus, it would have been dubbed the “Greatest Show on Earth.” Not surprisingly, it has instilled strong, but mixed, emotions among those who followed it. While some have wondered whether it was “Noah’s Ark or Jesus’s Cross?” (Banuri, 1992), most have agreed that it “launched the world into a new era of ecodiplomacy, econegotiation and ecolawmaking” (Gardner, 1992). In bringing together more than 100 heads of state and government, 150 nations, 1400 nongovernmental interests (NGIs), 8,000 journalists, and 35,000 participants, UNCED was the largest conference of its kind. In mobilizing the amount of international public interest that it did and in getting more than 150 nations to agree on its products1—specific conventions on climate change and biodiversity, a nonbinding set of principles for sustainable forests, a 27-point


International Environmental Negotiation

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declaration, a 700-page action program called Agenda 21, and a high-powered United Nations Commission on Sustainable Development—UNCED broke some important new ground.2 However, most analysts of the conference agree that its achievements lagged way behind its potential and were more in the way of articulating well-meaning concerns than spelling enforceable commitments.3 This being said, the reaction from analysts in the South was far more scathing than from those in the North. Leading environmental journals of the South described the Earth Summit as “all show and photo-opportunities [with] little substance” (Third World Resurgence, Aug-Sep, 1992) and branded its assemblage of world leaders as “the class that failed” (Down to Earth, July 15, 1992), while disappointed Southern negotiators lamented that the conference had been “negotiating the size of zero” (TerraViva, June 15, 1992). Martin Khor (1992c) summed the general feeling: It was the greatest show on Earth, but Earth itself lost at the Rio Summit that capped the UNCED process. Southern countries hoping to use the environment as leverage to get some development benefits also lost out. The big winners were the transnational companies: no regulations were put on them and they were treated as “partners.” The governments of the North preserved their global power but their people will also lose in the end if the environment isn’t saved. Perhaps we all lost at Rio.

The South’s Lost Innocence A South (see Box 3.1) that had entered the UNCED negotiation process believing that it was in a unique position of strength (see Kufour, 1991a) left Rio with “a huge sense of anti-climax” (Khor, 1992c). However, disenchantment with UNCED prospects had set in long before delegates reached Rio. At the Geneva preparatory committee meeting (PrepCom), Ambassador Edward Kufour (1991b) of Ghana, speaking for the group-of-77 (G-77), summed the South’s response to the initial drafts of Agenda 21 by proclaiming: “We have not come here to negotiate away our permanent sovereignty over our natural resources.” By the end of the preparatory process the earlier anger had given way to sadness and frustration as Ambassador Jamshed Marker of Pakistan, then chairman of G-77, admitted to nursing a bruised optimism, while the head of the Chilean delegation complained that, “virtually no progress has been made on fundamental issues in two years of negotiations” (SUNS, April 3, 1992). Before the conference, Gordon J. MacDonald (1992) had predicted that “the views of the developing nations will determine the direction, and probably the ultimate significance, of UNCED.” (The New York Times, March 17, 1992) had


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BOX 3.1. DEFINING NORTH-SOUTH Although Charles A. Jones (1983) considers North-South Dialogue to be very much a phrase of the 1970s, neither the terminology nor the concept of the NorthSouth divide is new. By the 1950s the term was in frequent usage within the “development community” (Ward, 1965) and gained wider public recognition in the 1970s during the New International Economic Order (NIEO) movement (see Box 3.5). During NIEO debates, it gained legitimacy through its usage in United Nations documents and international policy fora (UNITAR, 1976). During the 1980s, as the NIEO movement faded from global attention, the term was also confined largely to academic discourse. However, the publication of the South Commission Report (1990) and the term’s wide application by governments, NGIs, the media, and U.N. officials during the UNCED process revitalized it in popular environmental contexts. Despite their pervasive use, the terms North and South are seldom defined. The Brandt Commission4 acknowledged that neither is a “uniform or permanent grouping,” and generally described them as synonymous with rich and poor, developed and developing (Brandt, 1980, 1983). The South Commission5 provides a similar definition and uses the term, South, as an operational definition for the G-77 plus China (South Commission, 1990). In its 1990 report, The Challenge to the South, the South Commission acknowledges that the South itself is not a homogeneous entity and includes nations of widely varying economic strengths, colonial histories, political ideologies, and geographic and

demographic size. However, it stresses that “the primary bond that links the countries and peoples of the South is their desire to escape from poverty and under-development and secure a better life for their citizens.” It echoes the views of the Brandt Report that had pointed out that the South’s “solidarity in global negotiations stems from the awareness of being dependent on the North, and unequal with it.” In The Poverty of Nations (1991), Michael Manley, former prime minister of Jamaica, points out that the western mind is constantly confounded by the fact that over 100 different states representing the full range of the ideological, social, geographic, and economic spectrum find common ground in fora such as G-77 and the Nonaligned Movement (NAM). However, he explains that this is possible because “there is an underlying and binding cement to be found in their common experience of imperialism and colonialism together with the common disadvantage they suffer under the present world economic order.” (For discussion on G-77 and its diversity, see Geldart and Lyon, 1980; Sabri-Abdalla, 1980.) Many Southern environmentalists build on these definitions to stress that the North-South distinction is not just a “developed-developing” difference, but primarily a “domination-dependence” divide; a divide created and perpetuated by five centuries of colonialism which, they say, turned into neocolonialism and is now becoming ecocolonialism. (See Agarwarl and Narain, 1991.) During the UNCED process even Southern government officials began echoing this position.6



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echoed this view and noted that “for the first time . . . the developing countries have an issue where they have some real leverage.” In retrospect, this was not totally incorrect. However, the South soon found that its “leverage” lay not as much in influencing what went into the treaties but in what was kept out of them. Arguably, the treaties signed at Rio, on climate change and biodiversity, were of some consolation to the North; the South, which had come to UNCED proclaiming that “development remains the primary (environmental) objective of developing countries” (Kufour, 1991a), had little to show for the effort.7 Conceivably, it may be argued that the South was unrealistically expecting too much from the conference. However, Indian environmentalist Anil Agarwal (1992) considers the view that “the South came (to Rio) with over-heightened expectations of money and technology” to be a myth and feels that the opposite was true because the South reached Rio with an overarching fear that the Earth Summit “would end up with (the South’s) energy consumption levels being frozen at the current iniquitous levels without the West accepting limits commensurate to its responsibilities for the problem; that biodiversity conservation would become a convenient excuse for free access to this critical resource; and that its sovereignty over its forests would diminish to save the world’s climate.” He further argues that these fears compelled the South to search for “negative gains” (in terms of not losing too much) rather than “positive gains.” This in itself was a recipe for frustration. Stockholm and Rio: Two Different Worlds Like Janus, the Roman god who gave his name to the first month of the Western calendar, every international negotiation is two-headed; one face looking back into the past, the other to the future. In trying to understand how the South’s “bruised optimism” and frustration at UNCED is likely to influence future international environmental negotiations, we must first appreciate how it was informed by the past. The obvious reference point for such a study is the 1972 United Nations Conference on the Human Environment (UNCHE) held at Stockholm. In at least three important ways the moods of Stockholm and Rio were strikingly similar: both were groundbreaking conferences within the U.N. context; both galvanized tremendous public interest; and both were held at times of great hope about the changing nature of superpower politics (see Box 3.2).8 Although the setting of the world had totally changed in these 20 years, within these differences there were striking similarities for the South. At Rio, the South’s agenda gained prominence because the cold war had ended. At Stockholm, the boycott of the Soviet bloc served the same function. Ironically, the conference boycott by the Soviet Union and its allies—except Romania and Yugoslavia—was itself a manifestation of all-encompassing cold-war politics.10


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BOX 3.2. A TALE OF TWO CITIES Like UNCED, the Stockholm conference had boasted of being the largest United Nations conference ever, up to that point of time. Both were revolutionary in their approach to NGIs. Stockholm’s “Environment Forum” was nowhere as large as the gigantic “Global Forum” at Rio, but was no less effective in “keeping the national delegates honest.” Independent of the official documents, both triggered or coincided with the publication of influential works of environmental scholarship (for example Meadows and others, 1972). Both received unprecedented media attention and generated immense public interest. By coincidence, rather than intent, UNCHE in 1972 and UNCED in 1992 were both conceived in times when major global events were reshaping the prevalent geopolitical and socioeconomic balances of the world. Although a direct comparison with the breaking of the Berlin Wall, the fall of the Soviet Union, and the end of cold-war hostilities will be unfair, the early 1970s cultivated a surprising—in retrospect—sense of optimism about

superpower relations; this despite the Soviet bloc’s boycott of the Stockholm conference. The week before Stockholm, U.S. President Richard Nixon had returned from a “triumphant” summit visit to Moscow, which the world was hailing as a “new beginning.” Even in retrospect, that meeting was more significant than the Washington summit between U.S. President George Bush and Russian President Boris Yelstin in the week immediately following Rio. So pervasive was the mood of superpower reconciliation that the then U.S. Secretary of State, Henry Kissenger (1979), defined the events of 1972 as the emergence of “a new international order that would reduce lingering enmities, strengthen friendships, and give new hope to emerging nations.” In a diary entry on 9 January 1972, marking his 59th birthday, Richard Nixon (1978) referred to 1971 as “perhaps the most successful from the standpoint of accomplishment to date” and predicted that 1972 “offers immense opportunities and, of course, equally great dangers.”9

While this boycott did not diminish the shadow of the Soviet Union and of cold-war politics on the Stockholm proceedings11—in fact, the war in Vietnam and the issue of nuclear disarmament were amongst the most heatedly discussed issues12—the physical absence of one major superpower bloc did allow the South the opportunity to focus on an agenda of its own rather than being side-tracked by cold-war politics. This was largely precipitated by the emergence of China as the major leader of the conference (see Box 3.3). In short, the events and prevailing atmosphere of superpower relations not only “allowed” the South to articulate its interests and negotiate as a bloc, but also influenced the strategy and the negotiation positions that it adopted. (See United Nations, 1972; Rowland, 1973; Hill, 1972; Pirages, 1978; Caldwell, 1990.) Apart from the fact that scientific understanding of and public concern for environmental systems had improved dramatically in the intervening two decades,



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BOX 3.3. CHINA LEADS THE SOUTH AT STOCKHOLM Participating in its first major United Nations conference since having been allowed to take its U.N. seat in October 1971, the Peoples Republic of China was an unknown commodity in international diplomatic circles. Despite having missed the preparatory process, China emerged as one of the best-prepared delegations and one of the very few which knew exactly what it wanted to achieve at the conference. It surprised all observers first by leading the South in a criticism of both superpowers, and later by stage-managing the reopening and redrafting of the Stockholm declaration. While China had missed the Stockholm preparatory process, it asserted its leadership role very early at the conference itself. On the opening day, as delegates were still registering, and as Canada, Sweden, and the United States were endorsing the draft Stockholm declaration, China made the first of its many stunning announcements by spreading word that it intended to propose major amendments to the draft that had been prepared by the 27-nation preparatory committee.13 Soon, India and Nigeria had joined the Chinese bandwagon. China insisted that it wanted to make a positive contribution to this important document and that the democratic thing

to do was to allow a fair hearing to all 113 nations present. It stated: “The declaration is the main document under discussion at this conference. It sets forth the responsibilities of, and guidelines for, future world action, and only when it embodies the views of a majority of the countries can it have political and moral effect. Otherwise it is empty paper” (New York Times, June 9, 1972, p. A-1). Battle lines were drawn when the U.S. delegate informed the Canadians that it was “quite clear” that the Chinese were “out to wreck the declaration.” As 24 hours of frantic backstage negotiations remained divisive, China—in a risky move—put its support to test by abruptly introducing a resolution in the plenary, calling for a committee of all conference participants to review the draft declaration. The gamble paid off. In a bipolar world, with very strongly defined alliances, held together by bonds of strategic and political dependence, China was uniquely suited to assert leadership of the developing countries. The developing countries rallied behind China because they saw it as a nation big enough and strong enough to assert itself as a truly independent voice, and yet at a stage of development where it could identify with their interests.

the most significant difference between the world of 1972 and that of 1992 was the demise of cold-war politics (Brown, 1992; Mathews, 1991). The world’s geopolitical axis had subtly shifted and East-West tensions were giving way to reemerging North-South ones (Lerner, 1992; Williams, 1993). Consequently, some, like Sebenius (1991) were proposing that as the ideological conflicts recede into the past, more “creative solutions” would become possible. But a world without superpower antagonisms is also a world with very different perspectives on “development assistance” for developing countries (MacDonald, 1991). Coming at a time of a global economic recession, massive debt accumulations, trade


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imbalances, and a net negative flow of resources, this gave three signals to the nations of the South as they prepared for UNCED: • The size of the (aid) pie is getting smaller, not bigger. • There are more claimants (former Soviet bloc nations) to the pie. • In a unipolar world, major donors have rapidly diminishing political/strategic use for their support. With this realization, and without the East-West distractions clouding the agenda, the South found in Rio the opportunity, the inclination, and the forum to rekindle the North-South debate (see Kufour, 1991a; Peng, 1991, 1992; Williams, 1993). It was not unsurprising, then, that the South approached UNCED waving the flag of additionality—fearful of its development aspirations being sacrificed on the altar of new geopolitical realities in the name of the environment. Thus, despite having been proclaimed deceased, cold-war politics left a deep imprint upon UNCED and indirectly informed the South’s strategy at Rio. Stockholm and Rio: The Same South While the distinctions between East and West were becoming redundant at Rio, the South of 1992 was little different from that of 1972. It still found itself trapped in the same quagmire of impoverishment, dependence, and deprivation as it had at Stockholm.14 It still saw poverty, underdevelopment, and unequal global economic relations as the principal causes of its environmental problems and it still mistrusted the North’s environmental agenda as a guise to perpetuate this plight. It was this perception of the causality of its environmental problems that informed the South’s interests and strategy at both conferences. (See South Commission, 1990.) The principal interest of the South at both conferences was the same, and can be described in one word: development. In viewing the conferences as a threat to this cherished (and elusive) goal, the reaction of the South to initial proposals for both conferences bordered on hostility. At one point before Stockholm there was the real fear that the developing countries might decide not to show up for the conference (Kay and Skolnikoff, 1972; Rowland, 1973). The early debates in the Economic and Social Council (ECOSOC) of the United Nations on UNCED’s terms of reference were equally contentious, with some Southern delegates questioning the very motivation of the conference and raising doubts not different from those raised by their compatriots about UNCHE. Some developing countries had distrusted Stockholm as an attempt to “ratify and even enhance existing unequal economic relations and technical dependence,



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miring them in poverty forever” (Hecht and Cockburn, 1992). Others argued that having created comfortable standards of living for themselves, the industrialized countries wanted to “pull the ladder up behind them” (Rowland, 1973) to “slow planetary industrialization in order to replenish the spoiled ecosphere” (Pirages, 1978). Exemplifying this mind-set was the famous statement from Ivory Coast, which announced that it would prefer more pollution problems [in comparison to poverty problems], “insofar as they are evidence of industrialization” (Rowland, 1978). During the UNCHE preparatory process a number of regional meetings were held to elicit developing countries’ support and input. The most important of these was held at the small village of Founex, Switzerland, in June 1971. The Founex Report prepared by a distinguished group of Southern intellectuals became one of UNCHE’s most important documents outlining the South’s position. Some excerpts (Founex,1972): The developing countries would clearly wish to avoid, as far as feasible, the [environmental] mistakes and distortions that have characterized the patterns of development of the industrialized societies. However, the major environmental problems of the developing countries are essentially of a different kind. They are predominantly problems that reflect the poverty and very lack of development in their societies . . . These are problems, no less than those of industrial pollution, that clamor for attention in the context of the concern with human environment. They are problems which affect the greater mass of mankind . . . In [industrialized] countries, it is appropriate to view development as a cause of environmental problems . . . In [the developing country] context, development becomes essentially a cure for their major environmental problems.

Despite the South’s enunciation of its interests and reiteration of them at the conference itself, it gained nothing more than minor semantic victories in UNCHE documents. In large part Northern governments, NGIs, and media continued to dismiss the South’s development agenda as “pressure tactics” to elicit increased foreign aid (see Rowland 1973; Hill 1972). This experience compounded by that of the New International Economic Order (NIEO) movement that followed, made the South even more skeptical of the North by the time UNCED came about. The reason that Rio’s Earth Summit was not the Second U.N. Conference on the Human Environment, that it had originally been envisaged as, was the unyielding insistence of the developing countries to legitimize the environmentdevelopment linkage that they had fought so hard to establish at Stockholm.15 From China’s 1972 statement, “poverty is the worst form of pollution” (Clarke and Timberlake, 1982) to the publication of the Brundtland Report16 (WCED, 1987),


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the world had come a long way in accepting this linkage, but maybe not long enough (Adede, 1992).17 The South sought legitimacy for its concerns by influencing the United Nations enabling resolution for UNCED. Even though the principal proponents of UNCED were from the North, United Nations resolution 44/228 which sets the mandate for the conference was a creature of Southern interests. Crafted, after heated debate, in ECOSOC committees where developing states constitute the majority and where the majority vote wins, the South was better able to influence its final shape than it was able to affect final UNCED documents that required consensus. Unlike its predecessor—the 1968 U.N. resolution 2398 (XXIII) which convened UNCHE—44/228 was a phenomenally detailed set of responsibilities and goals, even by U.N. standards. Although some, like Johan Holmberg (1992), have opined that the resolution had “set an impossible agenda for the conference,” it remained the South’s way of trying to insure that unlike UNCHE, UNCED would focus on the issues dearest to it (see Box 3.4). Considering what resolution 44/228 had promised to deliver, it is not surprising that the South would have preferred to hold UNCED accountable to this agenda and why it considers UNCED to have failed its mandate. The South’s evaluation of UNCED is inevitably focused on three issues: financial arrangements, institutional arrangements, and technology transfer. The fate of all three demonstrates these commonalties: 1. They lie at the core of resolution 44/228. 2. They were the principal concerns of the South. 3. The overwhelming bulk of time and effort in the UNCED negotiations was spent on these three issues since they were considered critical to the success of the conference. 4. At the end of the UNCED process the “innovative” solutions envisaged by resolution 44/228 had been found for none, and in each case the status quo prevailed. From the Southern perspective, the world after UNCED does not look too different from the world before UNCED, or for that matter the world before UNCHE.18 A Profile in Frustration In summary, the key to understanding the South’s fears and frustrations concerning international environmental negotiation is to appreciate the constancy of the South’s overarching concerns and the equal constancy of its inability to achieve



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BOX 3.4. 44/228—UNCED’s “REAL” AGENDA AND MANDATE The South’s concerns about the development-environment linkage are evident from resolution 44/228’s stress “that poverty and environmental degradation are closely interrelated.” In 1990, resolution 45/211 considered it necessary to reiterate this “fundamental” relationship. Resolution 44/228 also affirmed “that the promotion of economic growth in developing countries is essential to address problems of environmental degradation”; reaffirmed that “states have the sovereign right to exploit their own natural resources”; noted that the industrialized countries were the largest polluters and therefore had the main responsibility of combating pollution; stressed the “specific responsibilities” of transnational corporations; and reaffirmed that “the serious external indebtedness of developing countries and other countries with serious debt-servicing problems has to be addressed.” In short the resolution had already stated much of what the South wanted the Rio documents to say. (Italics in the original) The resolution went on to identify nine areas of “major [environmental] concern” (of which population was not one). It also laid down a set of 23 objectives for UNCED, which, apart from others, included: to identify strategies “for concerted action to deal with major environmental issues in the socioeconomic development processes”; to recommend measures “to protect and enhance the environment, taking into account the specific needs of developing countries”; to promote “development of international environmental law . . . taking into account the special needs and concerns of the developing countries”; to accord “high priority to drought and desertification control”; to examine “the relationship between environmental

degradation and the international economic environment”; to examine strategies “for defined activities to promote a supportive international economic climate conducive to sustained and environmentally sound development in all countries, with a view to combating poverty and improving the quality of life, and bearing in mind that the incorporation of environmental concerns and considerations in development planning and policies should not be used to introduce new forms of conditionality in aid or in development financing and should not serve as a pretext for creating unjustified barriers to trade”; to identify “ways and means of providing new and additional financial resources particularly to developing countries for environmentally sound programs and projects in accordance with national development objectives . . . [and for] measures directed towards solving major environmental problems”; to consider various mechanisms for “ensuring, on a favorable basis, the most effective and expeditious transfer of environmentally sound technologies to developing countries”; to examine “the role of the United Nations system in dealing with the environment and possible ways of improving it”; to qualify the financial requirements for the successful implementation of Conference decisions and recommendations; and to identify possible sources, including innovative ones, of additional resources. In short, resolution 44/228 laid out for UNCED an agenda and a mandate that the developing countries, justifiably, considered a victory for their position on issues of environment and development. In retrospect, it was an agenda and a mandate that UNCED proved incapable of fulfilling.


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any of its goals. What galvanized the North-South polarization at both conferences was the totally different perceptions that industrialized and developing nations hold about what the “real” environmental issues exactly are (see Hill, 1972).19 Fueling the South’s frustration is the fact that at both conferences, the South’s arguments for defining additional financial resources as their right and as compensation from the North for having despoiled the planet’s environment, was seen by the North as a distraction, as extortion, and as exploitation of the issues to “pry more foreign aid money out of the rich” (Rowland, 1973; see also Hill 1972; Pirages 1978; Caldwell 1990; Sebenius 1991; Dumanoski 1992; Simons 1992). The single most striking conclusion of comparing the tone and content of North-South environmental negotiations is that in two decades during which the world map has been redrawn, nothing—either in argument or in the predicament of the South—has changed (Brundtland, 1992). Maurice Strong, who was the secretary general for both conferences pointed out at his last press conference at Rio: “Whilst this conference has been successful as a meeting, not a single thing has changed regarding our civilized behavior. We didn’t succeed 20 years ago at the Stockholm conference and we don’t have another 20 to waste” (quoted in Khor, 1992b). The “development and environment” section of the summarized general debate in the official UNCHE Report (United Nations, 1972) can today be read verbatim as a surrogate summary of the development and environment discussions at UNCED. Some excerpts: Considerable emphasis was placed by speakers from developing countries upon the fact that for two-thirds of the world’s population the human environment was dominated by poverty, malnutrition, illiteracy and misery . . . The priority of developing countries was development. Until the gap between the poor and the rich countries was substantially narrowed, little if any progress could be made . . . support for environmental action must not be an excuse for reducing development . . . there must be a substantial increase in development assistance. . . . Many speakers from developing countries stated that there was exploitation of their natural resources by developed countries for their own purposes; some protested against the activities of multinational corporations . . . the only criterion of the success of environmental programmes was the substantial improvement of the conditions of life of the vast majority of mankind. To achieve this there must be an entirely new attitude on the part of the developed countries towards their responsibilities . . . it would be intolerable if the nations which had created the world’s environmental problems should expect others to meet the cost.



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From NIEO to NIEO The 1972 Stockholm conference is often treated as no more than a footnote in much of the literature dealing with the history of the North-South debate. This is largely because soon after the Stockholm conference the world was brought to a near standstill by the 1973 oil crisis, which has been seen as the official launching point for the New International Economic Order [popularly called NIEO, for the purpose of this chapter we shall refer to it as NIE(co)O]. However, it needs to be appreciated that NIE(co)O had been slowly brewing within the documents of the Nonaligned Movement (NAM), the Group-of-77 (G-77), and the United Nations Conference on Trade and Development (UNCTAD) for nearly a decade before it caught international attention. Krasner (1985) sees the movement as the culmination of efforts that had begun even earlier in the 1940s. While the oil crisis was the event that bought it to the forefront of global attention, UNCHE was probably the first major international forum in which the South negotiated as a bloc and presented the arguments that were soon to become the hallmark of NIE(co)O.20 (See Jones, 1983; Murphy, 1984.) Neither the current North-South antagonisms in international environmental negotiations, nor the relevance of Stockholm can be understood without understanding the NIE(co)O movement (see Box 3.5). The essential motivation for NIE(co)O was the South’s desire to transform the world economic system as characterized by institutions such as the World Bank, the International Monetary Fund (IMF), and the General Agreement on Tariffs and Trade (GATT).21 At UNCED, the issue that concerned the South the most was no different.22 Yet, there has been a hesitancy on the part of environmentalists, especially in the North, to view North-South environmental dialogue as an extension of the NIE(co)O debate. In part, this is because of the fear—as articulated by Sebenius (1991)—that entertaining the South’s development agenda might protract ugly North-South rifts and increase the polarizations. This fear ignores the view that side-stepping what the South believe to be its just and legitimate concerns has created and prolonged these polarizations in the first place, and threatens to imperil the very future of international environmental negotiations. At the same time, this hesitancy has been propped up by the hope that a collective threat to the global environment may spur collective action (Mathews, 1991), or that a new ideological commonalty may grow around the concept of sustainable development (Sebenius, 1991), or that the demise of East-West tensions might themselves ease North-South misapprehensions (MacDonald, 1991). UNCED and its results have now shown that these hopes have been largely, though not totally, misplaced.


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BOX 3.5. THE NEW INTERNATIONAL ECONOMIC ORDER In The North-South Dialogue: A Brief History, Jones (1983) explains the emergence and rationale of the NIE(co)O movement for both the North and the South: “Arab oilpower and American humiliation in SouthEast Asia combined to direct the attention of western politicians, journalists, and publics increasingly towards the interminable succession of technically complex international negotiations on trade, money, and a host of lesser issues, in which it appeared that a new balance of power was to be struck between the industrialized West and the successor states of the old European empires in Africa, Asia, and Latin America. Satisfactory outcomes in these negotiations were regarded by the thirdworld states as essential to healthy economic and political development because it was widely assumed that the prevailing structure of international institutions served the narrow interests of powerful industrialized states at the expense of the poorer countries of the South.” Hansen (1979) defines the NIE(co)O debate as a conflict about conceptions about the management of society. On a similar note, Krasner (1985) sees it as the South’s fundamental challenge to the existing order of what he calls global liberalism and points out that vulnerability, not simple poverty was the motivating force for the newly independent developing countries. In popular understanding, however, it is generally agreed that for the South NIE(co)O was a movement aimed at restructuring the iniquitous global economic relations; and for the North it became an effort to bring into the folds of the global free market the two thirds of humanity that lived in the so called third world.

The oil crisis of 1973, new strategic South-South alliances that emerged therein (especially those motivated by OPEC’s [Organization of Petroleum Exporting Countries] desire to exert its leadership role), and a growing resentment in the South against an unjust world economic system, precipitated what has been called “one of the most important modern global conflicts” (Murphy, 1984). Rallying its new found unity, the South gained a major victory in the special session of the United Nations in June 1974 which legitimized its call for the creation of a New International Economic Order by passing the resolution and a Plan of Action. U.N. Secretary General Kurt Waldheim reiterated the South’s views by proclaiming that “many new nations, having won political independence, find themselves still bound by economic dependency. For a long time it was thought that the solution to this problem was aid and assistance. It is increasingly clear, however, that a New International Economic Order is essential if the relations between the rich and poor nations are to be transformed into a mutually beneficial partnership.” The U.N. followed its call for establishing the NIE(co)O with the adoption, in December 1974, of a “Charter of Economic Rights and Duties of States.” In essence, the new order demanded for the developing countries “full and complete economic emancipation” and the way to achieve it, they agreed (at a Conference of Developing Countries in Dakar in early 1975), was “to recover and control their natural resources and wealth, and the means of economic development.” The South decided to “change their traditional approach to



negotiations with developed countries, hitherto consisting in presentation of a list of requests to developed countries and an appeal to their political goodwill.” The new approach to negotiations would involve common action to strengthen their bargaining position, more economic activity among themselves and a strategy based on “the principle of relying first and foremost on themselves” (Menon, 1977). In its earliest days, the movement lived up to its hopes. Even the U.S. ambassador to the seventh special session of the U.N. General Assembly left saying that “perhaps never in the history of the United Nations has there been so intensive and so genuine a negotiation among so many nations on so profoundly important a range of issues. We have shown that we can negotiate in good faith and, in doing so, reach genuine accord” (quoted in Menon,1977). Soon, however, the conflict escalated with the North accusing the South of adopting a confrontational approach and the South blaming the North for perpetuating its misery. Environment was one of the many strategic issues in the debate. NAM was attacking the North for exporting its environmental problems to the South by stressing that “environmental measures

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adopted by one state should not adversely affect the environment of the states, or zones outside their jurisdiction”; the same NAM conference reaffirmed that “any infringement of the rights of effective control by any state over its national resources and their exploitation by means suited to its own situation, having respect for the ecological balance, is contrary to the aims and principles of the United Nations Charter and hampers the development of international cooperation” (quoted in Murphy, 1984). As geopolitical events in the 1980s shaped new alliances, the South’s unity as a bloc weakened, the control of the Bretton Woods twins over an increasingly indebted South became even stronger, and the North’s perception of the economic importance of natural resources in the South (particularly mineral and agricultural products) diminished, the NIE(co)O agenda began slowly receding from world attention, only to re-emerge in importance as the 1990s eroded the East-West polarizations and as environmental negotiations emerged as a new rich ground for this dialogue.

Understanding the South’s Frustration To understand how the South will respond to international environmental treaty making we must understand the South’s underlying interests. As Porter and Brown (1991) point out: “The tone and substance of North-South bargaining on environmental issues are influenced by the structure of the global economic system, which exerts indirect pressure on the policies of developing countries toward their natural resources and thus constrains the quest for global cooperation to save those resources. The developing states’ perceptions of the global economic structure as inequitable have long been a factor in their policy responses to global environmental issues. Those perceptions are based on the reality of the industrialized countries’ dominance of world trade and financial


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systems and the continued evolution of those systems to the disadvantage of developing countries.” Illustrative of the view that the South’s negotiating strategy at Rio was no more successful than its negotiating strategy during NIE(co)O is this evaluation from India’s leading environmental news magazine (Down to Earth, July 15, 1992): “For the South, as a whole, UNCED showed up the failure of its own strategy. These countries had gone with the intention of seeking reparation from their rich counterparts for the damages caused to the world’s environment. But they came back with nothing and looking less moral to boot. The North simply dismissed them as a penurious bunch, pulling at its purse strings.” Illustrative of the fact that for the South the current environmental negotiations lie on the same continuum as the economic negotiations of the 1970s is Julius K. Nyerere’s 1974 definition of the NIE(co)O (as quoted in Murphy, 1984). By only changing the word economic to environmental, this could be read as a definition of the South’s position today: “The complaint of the poor nations against the present state is not only that we are both poor in absolute and relative term and in comparison with the rich nations. It is also that within the existing structure of economic [/environmental] interaction we must remain poor, and get relatively poorer, whatever we do. . . . The demand for a new International Economic [/Environmental] Order is a way of saying that the poor nations must be enabled to develop themselves according to their own interests, and to benefit from the efforts they make.” It is this perspective, further informed by a long history and lingering memories of colonial exploitation that has shaped the South’s response to the international environmental negotiation regime (see Peng, 1992; George, 1988; Bello, 1989). Box 3.6 briefly summarizes this feeling of accumulated frustration. It is important, then, to understand that the South’s NIE(co)O agenda is not going to disappear either by ignoring it or by wishing it away (Thomas, 1992; Williams, 1993). The resilience of the South in pursuing this agenda over the last two decades demonstrates that all North-South negotiations, and particularly environmental negotiations, will be dogged by this agenda. What is more important and promising is the opportunity to transform the New International Economic Order [NIE(co)O] into a movement for a New International Environmental Order [NIE(nv)O].23 The magnitude and attendance at the Global Forum at Rio was an undeniable sign of the emergence of such a movement. The growing environmental awareness and NGI activism, both in the North and the South, promise to be its fuel. This is important, because unlike NIE(co)O which was primarily a movement of the South, NIE(nv)O can be a movement of both the South and



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BOX 3.6. THE ANGRY SOUTH: CAUGHT IN THE PAST? By its very definition all North-South dialogue is firmly rooted in five centuries of colonial experience (see Box 3.1). It is tempting, then, to dismiss the South’s persistent distrust and resulting militancy towards the North as the paranoia of historical baggage. However, a closer analysis of the South’s charges of ecocolonialism and green imperialism shows that its frustration, even if originating in the voyages of Christopher Columbus and Vasco da Gama; has been exacerbated by events in the much more recent past. The anger is directed, not at subjugation in the past, but at what is seen as subjugation today. The frustration emerges not from what had transpired in the past, but the South’s inability to influence what might happen in the future. (See Agarwal and Narain, 1992; Bakshi, 1992; Bello, 1989; Banuri, 1992). The report of the South Commission (1990), articulates this view: “All the world is linked together, inextricably. But it is linked in an asymmetrical and skewed manner . . . the countries of the South are

politically, economically, and culturally subordinate to the much stronger and better-organized North . . . the relationship is one of dependence much more than interdependence . . . Having for most part won the struggle for political independence, the countries of the South have been increasingly hampered by its limitations; it has not given them the power to determine their own policies and their own future . . . the conviction has therefore steadily grown in the South that there is a need to continue the struggle for independence, political and economic . . . the South seeks an undivided world in which there would be no South and no North; in which there would not be one part developed, rich, and dominating, and the other underdeveloped, poor, dominated . . . development is a process which frees people from the fear of want and exploitation. It is a movement away from political, economic, or social oppression. Through development, political independence acquires its true significance.”

the North.24 It is promising, because unlike NIE(co)O where the South insisted on North-South dialogue at the irritation of the North, this time the dialogue is being called for by the North. In addressing the Earth Summit, Jacques Delors, President of the European Commission, proclaimed that the “rebirth of North-South dialogue is absolutely urgent” (TerraViva, June 15, 1992). Johan Holmberg (1992) of the International Institute of Environment and Development reaches the same conclusion, as does Martin Khor Peng (1992) of the Third World Network. During the dying moments of NIE(co)O, Mahbub-ul-Haq (1980) predicted that “only a real international economic or political crisis will convince all sides to rush [back] to the negotiating table [to] revive the North-South dialogue.” The environmental problems of today are that crisis. In the revival of this dialogue


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there exists the danger that like NIE(co)O before it, NIE(nv)O would also be wrought with conflicts of interest; not just amongst the governments but also amongst the NGIs. But a greater opportunity exists because unlike most other international conflicts, global environmental issues are by definition a nonzero-sum game; an environmental gain for either side is, by definition, an environmental gain for everybody. The challenge, for both the North and the South, is to ensure that the win-win solutions are found and that the fate of NIE(nv)O is different from the frustrated stalemate of NIE(co)O.

Stop Feeling Angry at the North and Sorry for Yourself! Previous sections have tried to establish that, (i) twenty years of international environmental negotiations have left the South increasingly frustrated by its inability to achieve what it considers to be its just and legitimate environmental interests, and (ii) there exists today a window of opportunity for the South to achieve through the emerging New International Environmental Order what it failed to achieve through the perhaps discredited New International Economic Order. This section proposes a strategy that might allow the South to avail itself of this opportunity. In doing so the premise is that the negotiation strategy adopted by the South till now has been flawed because it has failed to produce its desired results and that its essential flaw derives from the perception it has bred in the North that it is confrontational, adversarial, militant, and anti-North (as opposed to pro-South). Some in the South might argue that the confrontational path that North-South dialogue has often taken is as much a function of the South’s false hopes (of what they might achieve) as of the North’s false fears (of what they might lose); others would contend that the South’s anger has neither been unjustified nor unprovoked. While a detailed discussion of whether these perceptions are justified is not the subject of this chapter, the thesis of such arguments is the adage that it takes two to make a fight. Yet, the flip-side of the same adage is that it takes only one to stop the fight. If the achievement of goals is more important that the mere retaliatory value of confrontation (the getting even mentality), as this chapter assumes it is, then it is to the South’s interest to be the side which realizes that since no one is winning it is best to stop the fight. (See Box 3.7.) The need for such a strategy emerges from the realization that the product of any negotiation is not the agreement but its implementation, which in turn is nearly always a function not just of the agreement but of the process by which it is reached (Susskind and Cruikshank, 1987; Saunders, 1991). A good process is one that



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• Is perceived by the parties as being fair, efficient, wise and stable (Susskind and Cruikshank, 1987). • Allows for efficient “packaging” (Raiffa, 1982). • Can build a relationship between the parties (Fisher and Brown, 1988). • Fosters a problem-solving attitude (Pruitt and Rubin, 1986). • Leads to mutual gain solutions (Fisher, Ury, and Patton, 1991). As the South has found, through bitter experience, a good process is not a derivative of how strongly you believe in your positions or how legitimate your interests are, but of how effective a strategy you can adopt. In an insightful analysis of why the North-South negotiations during NIE(co)O failed, Mahbub-ul-Haq (1980) stressed that this dialogue had “deteriorated to a ritual and a skillful exercise in non-dialogue.” The same could well be said about the North-South aspect of the UNCED negotiations. The reasons he gave are equally true today. In understanding, and sympathizing, with the South’s concerns and frustrations, the advice this chapter offers to the South is to: “Stop feeling angry at the North and sorry for yourself.” The eight-point strategy proposed here evolves

BOX 3.7. A FEW WORDS ON CONFRONTATION It is not being suggested that all confrontation is necessarily bad. It is better, for example, to confront a problem than to ignore it. Like conflict, confrontation too, is natural and sometimes even healthy. What is not natural and certainly not healthy is confrontation for confrontation’s sake, or for the sake of getting even. Getting To YES (Fisher and others, second edition, 1991) defines negotiation jujitsu as the art of putting the other side’s strengths to your own advantage. Confrontation for confrontation’s sake can become what might be called reverse negotiation jujitsu where a party puts its own strengths against itself. As the former secretary general of the British Commonwealth, Shridath Ramphal (1980) points out, all North-South dialogue is “bound to be disputatious”; the real question is whether that dialogue is productive of agreement and so contributes to

a more harmonious world, or is it to be so mired in discord as to enlarge global instability. Also, the opposite of confrontation is not weakness. There are times to confront and there are times to negotiate; discerning between the two is what strategy is all about. For example, the former President of Tanzania, Julius Nyerere (1980) in addressing the G-77 on the NIE(co)O, stated: “We [the South] have become very apologetic to our own people and to others. When participating in a dialogue we become apologetic, as if to negotiate is somehow to surrender or to soften about the objective. And if dialogue gets us nowhere, we become apologetic about confrontation, as if we were being unreasonable—even irrational—and provoking an all-out war which we cannot win. I do not believe that is the kind of choice we face.”


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from the principal lessons learned from negotiation theory.25 Yet, it is rooted entirely in the experience of the South in 20 years of international environmental negotiations, and is particularly informed by the NI(co)O experience. In the parlance of negotiation literature this strategy may be described as being unconditionally constructive (see Fisher and Brown, 1988) or as principled nonconfrontation (see Fisher, Ury and Patton, 1991). Yet, it needs to be stressed that this is not a soft strategy. In many cases it is likely to lead to actions far more stringent than those being adopted now. The fundamental difference in this strategy is that it seeks to redefine North-South environmental negotiations as a non-zero-sum game, in which gains for one party are measured not in terms of losses for the other, but in terms of the tangible gains for oneself. If success is measured not by how much one side gives to the other either in terms of financial assistance or control over resources, but how much is gained by humanity, both present and future generations win in terms of quality of life. #1 Focus on Interests, not Positions Development remains the primary objective of developing countries . . . We shall pursue sustainable development. This we shall do to the best of our ability without any prompting from anyone, because we believe it is in our interest to do so. AMBASSADOR EDWARD KUFOUR OF GHANA

(1991B), AS CHAIRMAN OF G-77

In any negotiation, most parties come to the negotiating table with “positions,” yet it is a set if “interests” that bring them to the table. Fisher and others (1991) define the distinction as positions being “something you have decided upon” and interests as “what caused you to so decide.” As parties entrench themselves into win-lose positions the seeds of escalation are sowed (Pruitt and Rubin, 1986). It is always important, and sometimes difficult, to focus on one’s own as well as the other party’s interests. In the heat of positional bargaining, it is all too easy to get carried away with the emotional rhetoric that often surrounds positions— your own as well as those of the others. Negotiators who fully understand and retain grasp of their own interests are less likely to leave the table with “hollow victories” like those that the South scored at Rio; and those who are able to appreciate and respond to the interests of the other party are most likely to stimulate creative, mutually advantageous solutions. As argued earlier, the South’s interests in environmental negotiations have remained unchanged: to seek development and a better life for its people. Its positions, however, have varied anywhere from demanding the proverbial pound of flesh for the North’s historical sins to seeking “charity” in the name of development assistance. The first forces the North to entrench deeper into retaliatory confrontation while the second puts the South into a position of



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subservience. The proposed strategy recommends that rather than trying to invoke the North’s guilt or generosity, the South’s own self-interest will be best served by invoking the North’s self-interest.26 Such a strategy is better facilitated today than in the 1970s because of the North’s desire to be at the negotiating table with the South, and the opportunity this offers to trade across issues that the sides value differently (see Raiffa 1982; Susskind and Cruikshank 1987). The argument that poverty itself is the worst polluter has the moral as well as intellectual potential to make poverty eradication— which is the development interest of the South—to become an “environmental interest” for the North. However, framing such an argument will require a major intellectual initiative, which must come from the South. If the change is to be lasting, the South will have to make its case for structural change rather than be bought by a few more crumbs in its beggar’s bowl. The advice given by Mahbub-ul-Haq (1980) to NIE(co)O leaders is equally valid for NIE(nv)O initiators: “The developing countries, in their initial excitement of the battle, have sometimes confused short-term concessions for structural changes . . . It has not been clear at times whether their demand is for a little more foreign assistance, a few more trade preferences, or a quick dose of debt relief, or whether it is for the elimination of those biases within the international market system which prevent full and self-reliant development of their national economies. A clarification of objectives at both ends is vital for serious negotiations.” Whenever it can, the South must not only make its own interest explicit, but also insist on making the interests of the North explicit. For example, if a NorthSouth financial transfer is being made to defer the cost to the South of signing a treaty in which the North is interested, then it is to the benefit of both sides to frame the transaction as a mutually advantageous environmental deal (which it is) rather than as an act of the North’s benevolence (which it is not, since the North is getting a service in terms of global environmental protection). This will save the South from a sense of false indebtedness and ensure the North of better compliance because the South can be held to its part of the bargain. Such an arrangement is likely to give negotiators and implementers on both sides a clearer and less ambiguous understanding of why the bargain has been struck and what is expected of each party. The lesson to be remembered is that the “requirement for effective conflict settlement is neither cooperation nor competition, but . . . ‘enlightened self-interest’ ” (Rubin, 1991). #2 Redefine the Power Balance The South has only one option in this entire North-South debate. It has never had much economic or political power. It can only have moral power. ANIL AGARWAL

(1992), INDIAN ENVIRONMENTALIST


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A skewed balance of economic, political, and technological power is the principal driving force of the North-South confrontation. As Krasner (1985) points out, the North-South debate is not just about wealth, it is about power. More specifically, it is about the South’s perception of powerlessness. However, it is suggested here that the South is not, in fact, powerless. But the onus of redefining the existing power dynamics lies with the South.27 The purpose of this recommendation is not to suggest that this power imbalance is in any way irrelevant, unimportant, or unreal; far from it, the South’s disadvantage, as exemplified by the poverty and deprivation of its peoples, is very real. The dilemma, however, is that the more powerless it feels, the less able it is to affect the power status quo. North-South environmental negotiations are, therefore, a perfect example of what Lord McCarthy (1991) calls a game “more akin to poker than to chess.” Many in the South have echoed the McCarthian argument that negotiation in these settings “is seen not just as a matter of logic and argument” but as a function of “the way the cards are dealt.” It is in accepting the validity of this argument that the case is built for applying what Fisher and others (1991) call “negotiation jujitsu.” Apologists in the South have based their pleas for charity on the desperate powerlessness of the South; the militants, on the other hand, have over-estimated the efficacy of the South’s power to disrupt. Both cases represent a serious miscalculation of the power that the South does, and can, enjoy. Both Stockholm and Rio demonstrated that the South does have power. It has the power of moral persuasion in that it has indeed been a victim of the global environmental crisis;28 it also has the power of numbers, especially in U.N. institutions. The South has used its power to its advantage at both conferences in ensuring that the issues and options that it least liked were kept out of the final texts. However, it has failed to bring the concerns and solutions that it does support into the texts of the agreements. In this, its power may be seen as a negative power; the power to stop, rather than the power to shape. Indeed, this has been largely, but certainly not entirely, because of the North’s much greater economic and political power. However, the South has only itself to blame for not having “developed”—and deployed—its negotiating power further. In believing that all power is fungible and economic or military strength is entirely transformable to negotiating power the South has trapped itself into the downward spiral of perceived powerlessness, where the assumption of powerlessness breeds the reality.29 What it has failed to recognize, and thereby to develop, is the power of its of it own legitimacy (see #4 below), the power of its own preparation (see # 5 below), and the power of its own credibility (see #6 below).



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Most importantly, it has never tried to cultivate its best alternative to a negotiated agreement (BATNA).30 As the quote from Julius Nyerere in Box 3.7 implies, every negotiation has to be seen in light of the larger goal. In environmental negotiations, in which the North and South are bound to be differentially interested in different aspects of the agreement, or agreements on different issues, the potential for trading between issues is full of innovative possibilities. At UNCED, for example, it was the South and not the North that enjoyed the better BATNA. Arguably, the South could have walked away from the conference at any time and still held the moral high ground. The North never had that luxury. Yet, the South came back with frameworks on issues of greater interest to the North (climate change, biodiversity, and forests) which gave it nothing of what it was seeking, and without even statements of principles on the issues of its concern, for example, desertification, poverty, water, and so on. #3 Be Hard on Issues, Not on People A decision by the South to reject subordination, and to act on that repudiation, does not imply a desire for confrontation. The confrontation already inherent in the current domination by the North must be replaced by a more balanced and equitable management of global affairs which satisfies the interests of developed and developing countries alike and recognizes the interdependence of the world’s people. SOUTH COMMISSION

(1990)

As pointed out earlier, nothing has influenced and shaped the South’s frustration more than five centuries of shared colonial exploitation. While this might otherwise have been an unfair reaction on the South’s part, it needs to be appreciated that the anger derives not just from the past but from the present. The past is invoked primarily because the South sees the current global systems of economics, trade, and governance as an extension of the same colonial legacy and as no less exploitative. Not being able to influence change in these systems can sometimes lead to the futile, but not surprising, resort of venting anger and frustration at people rather than at issues. Within the vocabulary of the more militant Southern voices one sees frustration being translated into an attack on those who are seen as offenders, rather than on the offense. It is not surprising, then, that the dialogue soon converts into a lock-in with each side entrenching itself deeper into what is seen as a defense of its identity. When the focus moves from a dialogue on principles to an exchange of accusations, objectivity is often the first casualty and stalemate converts to escalation (see Pruitt and Rubin, 1986). For example, with U.S. President


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George Bush arriving at UNCED saying that “the American lifestyle is not open to negotiation,” and the Indian Minister for the environment, Kamal Nath, responding that “our position is that USA is the biggest culprit in the world,” there was little hope left for even thinking about mutual gain solutions and meaningful dialogue (quotes from Down to Earth, July 15, 1992). What is sacrificed here is not just civility, but relationship—and the latter is a critical component of a good negotiating process (see Fisher and Brown, 1988; Zartman and Berman, 1982; Sebenius, 1984). Even more importantly, the focus shifts from issues to personalities. In a world where everyone—particularly the press—loves a bad fight, the reason for the fight soon becomes irrelevant. As issues are relegated to a peripheral seat, potential allies are lost; potential points, never scored. In attacking the offender, rather than the principle behind the perceived offense, the possibility for any solution, let alone mutual gains, is soon foreclosed. While such a strategy may make some feel like Jack standing up to the giant, there is little, if any, substantive gain to be made. It is easy to forget that the fight is not against the Bretton Woods twins, but for accountability, transparency, and democracy in international institutions; not against U.S. lifestyles, but for more conserving patterns of consumption; not against the wealth of the North but for poverty eradication in the South. It is ironic in surveying the results from Rio that while the South was extremely hard on the people (that is, President George Bush, the United States of America, World Bank, GAAT, and so on) it was surprisingly soft on the issues, and in the end agreed to the perpetuation of all the principles it was supposedly crusading against. #4 Redefine the Agenda The ecological debt must be paid . . . Hunger should be done away with . . . Let this be the end of selfishness and hegemonism; the end of callousness, irresponsibility and deceit. Tomorrow it will be too late to do what should have been done a long time ago. FIDEL CASTRO, PRESIDENT OF CUBA SPEAKING AT

UNCED31

Along with recommendations #5 and #7 below, this recommendation lies at the heart of this strategy and could well become the difference between success and failure for the South in the emerging NIE(nv)O. A major criticism from the South has been that the international environmental agenda is principally driven by Northern concerns. For example, it is argued that even though global warming and ozone depletion may end up affecting the South disproportionately they



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are (i) of the North’s making, and (ii) more important for the North since the South has more pressing survival issues to deal with; similarly, the issues of biodiversity and forests, as they are currently defined, are also of much greater interest to the North than the South (Agarwal, 1992). These criticisms are not unjustified. However, the hope that the North might, of its own accord, devise an agenda that reflects the South’s interests rather than its own, is unjustified and demonstrates an unfortunate naiveté about the world we live in. The onus of redefinition, it must be realized, lies with the South. While environmental activists in the South have begun demanding a redefinition of the international environmental agenda, government negotiators have found themselves increasingly constrained by the agenda already on the table. Anil Agarwal (1992) poignantly asks: “Which questions should [the world] try to solve first[?] Why ozone layer depletion or climate change or biodiversity conservation? Why not the international financial system, terms of trade or poverty, all of which have deep ecological linkages with the environmental problems of the South?” Arguably, the South has an appealing case. If the world needs a global climate change treaty to avert the uncertain likelihood of an unknown number of possible deaths and an equally unknown amount of possible agricultural loss over an unknown period of time, then does it not stand to objective reason that the world needs treaties on safe drinking water and soil-loss much more. Would these prevent any more deaths or greater agricultural loss each year than the worst-case scenario of global warming might do in 50? Yet, to demand such an agenda the South has to invest effort and intellectual resources in defining it, defending it, and propagating it. It is up to the South to take the lead in defining this new agenda and linking it to the concerns of the North so that they do not feel left out as the South feels left out of the current one. The creative linkages advocated in much of negotiation theory (see especially Raiffa, 1982; Sebenius, 1984) and stressed in recommendations by the Salzburg Initiative (Salzburg, 1992) and other proposals for reforming the international environmental negotiation system (see Benedick, 1991; Eckaus, 1992; Mathews, 1991; Porter and Brown, 1991; Skolnikoff, 1990; Susskind, 1992) can be fruitfully served by such a redefined agenda that seeks to include the interests of both the South and the North.32 The South’s redefined agenda must also resist the temptation from the North to Balkanize environmental treaty making by focusing on smaller and smaller issues in hope of quicker results. Such a view—as well as the approach of the ozone depletion negotiations, in which the nations of the North essentially decided the treaty among themselves and then haggled over financial resources with the South later—should be resisted. Instead, the South must emphasize focusing on the


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holistic approach so that trading between issues (and treaties) that the parties value differently can be facilitated.33 #5 Organize Yourself For the South, in the era of negotiations, effective unity is the mandate of the world’s poor. But without organization real unity will be forever a mirage. SIR SHRIDATH RAMPHAL

(1980), GUYANA, FORMER SECRETARY GENERAL OF THE BRITISH COMMONWEALTH

The centrality of good organization in effective negotiation is a major thrust of the Salzburg Initiative on reforming the international environmental negotiation system (Salzburg, 1992). Southern scholars have also been calling for a better-organized South (Mahbub-ul-Haq, 1976, 1980; Ramphal, 1980; Nyerere, 1980; South Commission, 1990; Manley, 1991). The lesson from negotiation theory is also the same (Fisher and others, 1991; Susskind and Cruikshank, 1987; Susskind, 1992). Though somewhat belatedly, environmentalists in the South are coming to similar conclusions (Agarwal, 1992; Peng, 1992; Khor, 1992b, 1992c). An important insight into the importance of organization in negotiations comes from Sir Shridath Ramphal who has remained an important leader of the South both in NIE(co)O and the emerging NIE(nv)O. In his essay, “Unity Alone is not Strength” (1980) he writes: “The trouble is that an instinct for unity without organization has persisted into an era of negotiations when organization itself has become the concomitant of unity and the precondition for unified action. The organization of the South for effective negotiation with the North can never be free of difficulty; the question now is, however, whether effective negotiation with the North or even practical cooperation within the South is possible without such organization. All evidence suggests that it is not.” Environmental negotiations, although essentially political in nature, are often shrouded in scientific and technical complexities for which the nations of the South are not always prepared (Susskind, 1992; Caldwell, 1990). The time and expense required in protracted international negotiations is another limiting factor. All this is often compounded by the fact that those who negotiate treaties are usually professional diplomats rather than those directly concerned with environmental implementation (Khor, 1992c). Individual nations in the South need to cultivate the human resources required for complex environmental negotiations. More importantly, the South as a whole requires a coordinated strategy, which allows the scarce resources of time, money, and human capital to be pooled for maximum effectiveness.



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A proposal that has floated around for nearly a decade and was formally outlined in the report of the South Commission (1990) recommends the setting up of a “South Secretariat.” The commission argues: “The South is not well organized at the global level and has [therefore] not been effective in mobilizing its shared expertise and experience or its bargaining power. As a consequence, it is at a great disadvantage in its relations with the North. This is also prejudicial to the process of South-South cooperation.” The report finds that in the absence of such organization individual developing countries have not been able to sustain solidarity in the face of the temptation to seek separate deals, and that the South as a whole has failed to respond to the needs of complex collective negotiation. It goes on to suggest that the establishment of a South Secretariat would facilitate “well-organized collective action [to] benefit all countries, with little, if any, significant sacrifice of national advantage . . . [will] establish common priorities . . . share technical and negotiating expertise . . . [encourage] constructive South-South cooperation . . . develop a shared professional service to support [the South] on matters under negotiation . . . and update [the] negotiating agenda.” To this exhaustive list, two related priorities suggested by the Salzburg Initiative (see Susskind, 1992) and advocated by MIT’s Lawrence Susskind (1992) need to be added. The first is the importance of prenegotiation that was so amply highlighted during the UNCED process. The second is the need for the South to come to all environmental negotiations with at least one draft treaty. This would not only reinforce the previous four recommendations of this strategy but would give the South a headstart on the negotiation process, and a much better chance of influencing the final draft. Given that there may be a multitude of subinterests within the South (see #6 below), multiple drafts from the South may sometimes be required. The importance of such drafts is exemplified by the Rio Declaration on Environment and Development (unfortunately acronymed Rio DEAD). After protracted debate during the fourth UNCED PrepCom at New York, and with only two days to go, no consensus was emerging.34 At this point the plenary Chairman, Ambassador Tommy Koh of Singapore, announced that he would draft a new version as a last effort. Thanks to some powerful back-stage negotiations and Koh’s leadership, following even more heated debate, this version was adopted very late into the last night. Without taking any credit away from the mediation skills of Tommy Koh it needs to be appreciated that he succeeded in coming up with a draft that “no one was happy with but every one was able to live with” because he was able to work with two draft declarations that had earlier been proposed by the United


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States and the G-77. Without those, it is doubtful if even he could have been able to craft the acceptable, though not uncontroversial, Rio Declaration.35 #6 Develop Your Constituency [The G-77 is] the trade union of the poor. JULIUS K. NYERERE

(1980), CHAIRMAN OF THE SOUTH COMMISSION AND FORMER PRESIDENT OF TANZANIA

As elaborated earlier, the South is, in fact, not a homogeneous whole. However, the need for the South to negotiate as a single bloc has been effectively argued and is widely accepted within the South (see Agarwal, 1992; Brandt, 1980, 1983; Manley, 1991; Nyerere, 1980; Peng, 1992; Ramphal, 1980; South Commission, 1990). The argument for doing so during NIE(nv)O remains the same that it was during NIE(co)O. Individually, or even as subgroupings, the developing states do not have the bargaining power to influence global decisions, and collectively there is enough commonalty in their joint desire for development to effectively negotiate as a bloc. It is also argued that “the concept of the nation state as an arena for independent economic development is becoming increasingly obsolete” (Manley, 1991), and a wave of regional groupings is inevitable, and that the South has a role to play as a major supragroup (South Commission, 1990). However, as the G-77’s experience during UNCED exemplified, surviving as a supragroup is not an easy task when the economic, ideological, and geographic diversity is as great as it is with the South. Negotiation theory, particularly the works by Raiffa (1982) and Sebenius (1984), have some important insights to offer on the issue of coalitions. The important lesson for the South is that while coalitions are often built around broader issues, they usually fall apart around smaller— but more immediate—ones. It is important for the South to adopt a strategy where South-South negotiations are a necessary part of all North-South negotiations. Not only must differentially valued issues and treaties be traded between the North and the South, but similar trades must also take place within the South. For example, the environmental interests of the Sahel states from Africa are markedly different from those of the rainforest nations from South America, or those of the irrigated agricultural countries of South-East Asia. All of these, in turn, are totally different from the issues that concern the economically vibrant Far-Eastern states or OPEC members. On the one hand, there lies the danger of suppressing any particular interest so far as to splinter particular subgroups out of the larger coalition. On the other hand, there is the danger of falling into the lowest common denominator trap in



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trying to keep everyone happy. Both are detrimental to the South’s larger interests. Any strategy for the South, then, must (i) encourage South-South negotiations that allow the trading of differentially valued interests within the South, and (ii) focus primarily on the larger common issues of systemic change while allowing subgroups the lead in focusing on issues of particular interest to them.36 Complementing South-South negotiations is the need for greater South-South cooperation (Mahbub-ul-Haq, 1976, 1980; Manley, 1991; South Commission, 1990). There is much that the nations of the South can learn from the experience of each other, both in economic and environmental fields. The South Commission (1990) points out: “subregional, regional, and interregional cooperation has now become indispensable for [the South’s] sustained growth . . . the rewards of cooperation can, in time, become considerable. But they have to be earned; resources and effort have to be invested, and it takes time to produce results.” Environmental cooperation is likely to be especially beneficial and also devoid of the problems that might arise in economic cooperation. In fact, even in issues of technology transfer, Southern countries probably have as much to learn about sustainable development from each other, as from the North (Peng, 1992; Shiva, 1992b). Finally, the single most important step that the South must take in developing its constituency is to begin viewing its NGIs as allies, rather than adversaries. In fact, till now environmental NGIs from the South have done a better job of winning attention for the South’s agenda than Southern governments. With NGIs taking an increasingly activist role in international environmental negotiations worldwide, a dominant role for Southern NGIs is not just desirable, but imperative. As Agarwal (1992) stresses, “the South has no other choice after Rio but to go out and engage itself in the international dialogue . . . Southern NGOs and intellectuals must play a key role in setting the terms of debate to the maximum extent possible.” The South, as a bloc, would be well advised to (i) encourage the further development of its non-governmental environment-development movement, and (ii) to further incorporate NGIs into the mainstream of international environmental negotiations, on behalf of the South. #7 Clean Up Your Own Act All the diplomatic skills and rhetorical eloquence, taken together, offer no substitute for the tough decisions [required] within the South. MAHBUB-UL-HAQ, FORMER FINANCE MINISTER OF PAKISTAN

If the flag of the NIE(co)O was the interdependence of global systems, the marching tune was self-reliance. For the South, the NIE(nv)O demands nothing less. The


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South Commission (1990) reiterates this view in today’s context: “It is the South’s people who suffer most from the poverty and failings of the South . . . the responsibility to work for change in the present conditions therefore lies firmly with the South.” The power of legitimacy that was referred to earlier can emanate only from what the South does within its own borders. Its criticism of the North’s environmental sins is bound to ring hollow if its own environmental record is scarred. If it is to present development and the provision of a better life for its people as its principal environmental interest, then it must be seen to be working towards this goal at home, independent of which way the negotiations go. If the South’s bargaining position is to be based on a high moral ground, then its actions must justify that moral position. In this regards the question posed by Madhu Kishwar (1992) cannot be ignored: “Why don’t we set our own house in order first?” In answer, India’s Anil Agarwal (1992) underscores the strategic importance of domestic action: “The challenge to the elite leadership of the South has become clear after Rio. If it does not get its house in order, its own internal divisions will be used to clamp greater international restrictions on it. And unless it is able to get greater honesty, efficiency, and self-reliance into its own economic systems, it will be consistently portrayed as a beggar and its morality snatched away. It will then be left in a very weak negotiating position.” The environmental record of the nations of the South itself leaves much to be desired. Till now, the South has been able to get away with pinning the blame for the world’s environmental crisis on the North because the North’s contribution to these problems have been disproportionately large and protracted over time, and the South’s problems have been largely attributable to the lack of resources and development. Yet, not all of the South’s environmental woes are results of the North’s actions or the South’s poverty. In many cases they are the results of the corruption, unaccountability, obfuscation, and lack of democracy in national governance within the South (Kishwar, 1992). In most cases, the disparities between the rich and the poor within the countries of the South are no less than those between North and South. The environmental ramifications of this stark internal division and inequity are as glaring as those of international divisions and inequities. In essence, there is a North and a South within the South, and this internal North-South division has similar environmental repercussions as the global North-South rift. If the South is to maintain the moral high ground—which is its principal source of strength in the emerging NIE(nv)O—it must begin by implementing at home the same systemic changes it is demanding internationally. If it does so,



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its case shall be hard to argue against; if it does not, it shall continue to be seen as nothing more than an irritant, not to be taken seriously in global environmental negotiations. (See Agarwal, 1992; Peng, 1992).

#8 “Winning” Is Not Important; Good Agreements Are In the final analysis humankind must develop economic and social institutions which are just in purpose and democratic in form. Otherwise the world will stumble from one disaster to the next. MICHAEL MANLEY

(1991), FORMER PRIME MINISTER OF JAMAICA

As stated earlier, the hope that NIE(nv)O’s fate may be different from that of NIE(co)O emerges from the belief that, unlike many other international problems, environmental issues are non-zero-sum in character—the pie can be expanded and mutual-gain or win-win strategies are possible. However, it is futile to play a win-win game with a win-lose mind-set (where one party’s victory is measured by the magnitude of the loss to the other party) because parties are liable to refuse a winning strategy for themselves just because it does not represent a “losing” outcome for the other party. The rationale for this last recommendation is to move the reference point for gauging “victory” from how much the other party loses, to how much the planet’s environment gains. In standard economic (for example, trade) or political (for example, armament) negotiations it may be understandable to play a win-lose game. In global environmental negotiations, however, a loss for any party is, by definition, a loss for the planet and thereby for all humanity. This is not to deny that the capability of bearing the costs of mutual gains, as well as the responsibility for causing the problem, are nearly always differentiated and must be borne differentially. The point merely is that the win-lose mind-set that has dominated the world through the heydays of national independence movements and the Cold War is no longer appropriate for environmental diplomacy. (See Benedick, 1991; Mathews, 1992; Porter and Brown, 1991.) Appreciating that negotiation lies not in discrete points but along a continuum, the South is advised to adopt a building-block approach to negotiations rather than an all-or-nothing approach. The wide range of environmental issues that are likely to be negotiated in the future allows the South the opportunity to build on success, across treaties. Rather than seeking a single major victory that would change the world in one bold stroke, the South is better served to adopt a modular approach that seeks blocks of smaller successes that lead to greater


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cumulative change. It may be argued that this is already being done, though by default. What is being recommended, however, is explicit prioritization and planning. The South must come prepared with strategies and priorities not just for a particular negotiation, but negotiations beyond that. Success will be measured not just by what the South takes away from the table at the end of a particular negotiation, but how its gains reinforce (if at all) its previous gains and how it manages to influence the setting of the table for the next set of negotiations. Finally, it must be emphasized that the agreement that emerges from any negotiation is always more important than the fight that goes into it, and that the level of implementation that the agreement enjoys is always more important than the agreement itself. The practical significance of this self-evident advice is that making the other party look bad is not success; success is getting an agreement that will work. Once you have made the other side look bad it is unlikely that they would sign on to an agreement that makes you look good. That the other party is at the table to negotiate is evidence that their agents want an agreement. But a workable agreement is, by definition, an agreement that meets the interests of both parties. To demand justice for five centuries of colonialism is all very good, but to expect it out of sheer benevolence is naive. This is not because the North is necessarily unjust, but because their perceptions of justice may be different from those of the South, or because they see the costs of what the South is demanding as excessive. For a workable agreement to be signed both parties have to be able to say yes. Until now the South has found itself forced into saying no because the North’s proposals have failed to incorporate its interests. It is now time for the South to take the lead in proposing solutions that are “yesable” for both sides.

Conclusion This chapter does not imply that there are any easy strategies, either for the South or the North. There is no easy fix to the issues we confront today. The prescriptions presented here are like a nasty but necessary medicine that needs to be gulped despite its taste. It does not even promise to be a cure. However, it could possibly be a first step toward recovery. The alternative is to follow the advice of Stephan Krasner (1985) who argues that “the international system would be more stable and less conflictual if the North and the South had less to do with each other. From a Northern as well as a Southern perspective collective self-reliance is preferable to greater



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interdependence.” Given the nature of global environmental issues, this advice, if followed, would not just be unfortunate for humanity, but in all likelihood catastrophic for this planet. Although this strategy is addressed entirely to the South, its success will in part depend on how it is received by the North. Some in the North will always see any effort from the South to bargain collectively as an act of confrontation even though the North has always organized itself as an alliance in negotiations with the South (Nyerere, 1980; South Commission, 1990; Ramphal, 1980).37 While a well-organized South—with clearly outlined interests, strategies, and goals—will certainly be able to negotiate more effectively, it would be to the North’s benefit to deal with an organized South rather than with a South whose principal negotiating strategy derives from 500 years of accumulated anger. If ensuring that the North reacts to NIE(nv)O more accommodatingly than it did to NIE(co)O is going to be difficult, it is going to be no less arduous to get the South to adopt a strategy that calls for change and sacrifice at home. The key to this strategy’s success is for the South to move from a reactive mode in international environmental negotiations, to a proactive mode. This will require the South to wrest both the initiative and the leadership; to demonstrate its environmental earnestness, not only to the North, but also to its own populace; and to take tough economic—and political—decisions. The advice given by Down to Earth (1992b) is worth heeding: The lessons are obvious by now and our [the South’s] leaders should learn from them: firstly, stop begging for more aid, secondly, practice efficient management of one’s indigenous resources, and, thirdly, as far as the global dialogue is concerned, propose and jointly fight for their own, alternative vision for global management. Each of us—black, brown, yellow and white—has equal rights to this earth. Hence, a global management system should be proposed that would respect our rights in a way that those who are gluttons of the world’s resources would face clear economic disincentives, while the well-behaved would gain clear incentives. If, in the resulting automatic flow of resources, some cash comes to the South, well and good; if not, the people of the South must learn the discipline of living entirely within only that which is rightfully theirs.

The proposals of this chapter are likely to be unpopular with both the militants and the apologists in the South. The militants are likely to see them as being too weak and condescending to the North; the apologists as too strong and


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aggressive. Even more important—and doubtful—would be support from bureaucrats and politicians who, as ruling elites themselves, will be required to change not just their negotiating strategy but their approach to domestic and international environmental policy. However, for the South to maintain its moral high position, such changes are inevitable and without them its position shall soon be discredited. Such change cannot be easy. However, such change is the price that the South must pay to ensure a better environment for its children tomorrow, and a decent survival for its people today.

Note on Sources U.N. documents, including U.N. General Assembly resolutions, voting records, and transcripts of committee discussions have been an important background source in writing this chapter. Press coverage of UNCHE and UNCED related events and special publications concerned with these conferences have been another important source of information. The following publications were especially useful and their news reports may be cited in the text with publication dates, without being included in the list of references: Boston Globe, Boston, Massachusetts; Brundtland Bulletin, Geneva; Down to Earth, New Delhi; E&D File, 1992:UNCED Briefings, New York; Earth Summit Bulletin, New York; Earth Summit News, Conches; Earth Summit Times, New York and Rio de Janeiro; Earth Summit Update, Washington D.C.; New York Times, New York; South-North Development Monitor (SUNS), Penang, Geneva, New York, Rio de Janeiro; Third World Resurgence, Penang; TerraViva, Rio de Janeiro; Wall Street Journal, New York.

Notes 1. Technically, the official products of UNCED were the Rio Declaration on Environment and Development (substituted for the originally intended Earth Charter), the Authoritative Statement of Forest Principles, and Agenda 22, all of which were adopted by consensus (without vote) by the conference. The creation of the Commission on Sustainable Development was proposed in Agenda 21 and was therefore never voted upon and was later created by the U.N. General Assembly. The conventions on climate change and biodiversity were products of independent, but concurrent, processes which were opened for signatures at UNCED and were signed by 153 nations each, with the United States being the notable exception in signing the biodiversity convention and Malaysia refusing to sign the climate change convention. However, the United States of America, under the Clinton administration has since signed the biodiversity convention. 2. Just after the fourth PrepCom in New York, when prospects of meaningful results were at their bleakest, the Chairman of the UNCED preparatory committee, Tommy Koh of



3.

4.

5.

6.

7.

8. 9. 10.

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Singapore, pointed out, “there is a rhythm to U.N. negotiations. First, you have confrontation, then a period of crisis, and then resolution”; others pointed out that “the conference is condemned to succeed, because no one wants it to fail”; yet others were afraid that such a success might be “a quiet failure masquerading as a success” (quotes from Newhouse, 1992). In retrospect, all three statements were prophetic. UNCED secretary general, Maurice Strong, in a press conference after UNCED’s closing ceremony, described Rio as a shift in direction because environmental concerns had been widely accepted and articulated; however, he added that “we leave Rio without satisfying commitment for that concern” (quoted in Khor, 1992b). Similarly, Jessica Mathews (1992) found UNCED to be a “notable—perhaps historic—success,” but noted that “UN conferences are notorious for commitments made and not kept.” Officially called the “Independent Commission on International Development Issues,” the Brandt Commission is popularly recognized by the name of its Chairman, Willy Brandt, former chancellor of the Federal Republic of Germany and winner of the Nobel Peace Prize. The commission included eminent scholars and leaders from both the North and the South including Edward Heath (United Kingdom), Olof Palme (Sweden), and Shridath Ramphal (Guyana). The commission’s original report, North-South: A Program for Survival (Brandt, 1980), was followed three years later by an update, Common Crisis: North-South Cooperation for World Recovery (Brandt, 1983). The South Commission was established in 1987 in response to the idea floated by Malaysian Prime Minister Dr. Mahatir Mohammad at the 1986 Summit meeting of the Nonaligned Movement (NAM) at Harare. Chaired by Julius K. Nyerere, former president of Tanzania, with Dr. Manmohan Singh of India as its secretary general, the 28-person commission had representatives from all continents of the South, including Gamani Corea (Sri Lanka) former secretary general of UNCTAD; Michael Manley, former Prime Minister of Jamaica; Carlos Andres Perez, former President of Venezuela; Shridath Ramphal (Guyana), former secretary general of the British Commonwealth; and Dr. Abdus Salam (Pakistan), Nobel Prize winner in physics. The report of the Commission, The Challenge for the South, was published in 1990. Consider for example, the statement by Fernando Collor de Mello, former President of Brazil (quoted in Lang, 1992): “The end of the world’s ideological division has not signaled an era of peace and prosperity but has led to the emergence of a great Empire, the Empire of the North.” More poignant was this statement made by Pakistani diplomat Tariq Hyder, speaking for the G-77, during the fourth UNCED PrepCom (SUNS, April 4, 1992): “We [the South] do not want our freedom after independence, which has been so short, and in many ways illusory . . . to be constrained by new environmental conditionalities which could be equated with environmental colonialism.” While these individual treaties are not the subject of this chapter it needs to be pointed out that even if weak and unenforceable, they give the North the basic framework for what it wanted, to the South they gave little, except in keeping out some of the things it opposes (see Haas and others, 1992; IIED, 1992; Shiva, 1992b; Third World Resurgence, 1992). For a more detailed comparison of UNCHE and UNCED see Najam (1992). Ironically, 1972 turned out to be the year of the Watergate scandal. The Soviet-led boycott of the Stockholm conference came in response to the West’s refusal to let the German Democratic Republic (East Germany) participate, but was a complex and delicately timed affair motivated more by the politics of the negotiations leading to Willy Brandt’s cherished goal of Ostpolitik (Brandt, 1976). In response to a joint


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proposal from the United States of America and Great Britain, the U.N. General Assembly, through its resolution 2850 (XXVI), decided to apply the 26-year-old “Vienna formula” allowing full participation at Stockholm only to “State members of the United Nations or members of specialized agencies or of the International Atomic Energy Agency.” This meant that West Germany, as member of UNESCO and WHO, could attend, but East Germany could not. The resolution received 104 votes in favor, with nine against (Bulgaria, Byelorussia, Congo, Czechoslovakia, Hungry, Mongolia, Poland, Ukraine, USSR), seven abstentions (Chile, Cuba, Guinea, India, Jamaica, Romania, Yugoslavia) and 12 nations absent. Of those opposed only Congo participated at Stockholm; of the abstainers only Cuba stayed away; the notable absentees were Albania and China. Ironically, the “Big Four Accord,” that paved the way for the simultaneous entry of the two Germanies into the U.N., was signed in Berlin on June 4, 1972, at about the same time as the U.N. secretary general, Kurt Waldheim, opened UNCHE (voting records and resolutions from Djonovich, 1975; also Pell and Case, 1972; Rowland, 1973; Clarke and Timberlake, 1982). 11. It would be a mistake to believe that the Soviet absence from the UNCHE conference halls amounted to a lack of influence on conference outcomes. The USSR and its allies had been active participants during the UNCHE preparatory process. During the conference itself the UNCHE secretary general, Maurice Strong, held daily secret meetings with the Soviet Ambassador to keep him abreast of events. Hopes of a last minute arrival by the Soviet Union and East Germany were kept alive. In fact, 30 Volvos and Saabs, 220 hotel beds, and one vice chairmanship were left open during the first couple of days in anticipation of a compromise. At one point, a compromise acceptable to the West Germans was reached which would have given East Germany working participation without the right to vote. However, an unfortunately worded New York Times story prompted the Soviet bloc to break off the talks. Yet, the Soviets remained an influential player through their participation in the preparatory process, through their allies at UNCHE and most importantly at the postconference meetings of the U.N. General assembly. In fact, when the General Assembly operationalized one of Stockholm’s key decisions by establishing the United Nations Environment Programme (UNEP), the USSR was one of the 54 member states elected. Interestingly, both East and West Germany (who had just been admitted to the United Nations) were also elected, as were other boycotters, Czechoslovakia and Poland (United Nations, 1972; Pell and Case, 1972; Rowland, 1973; Clarke and Timberlake, 1982). It could be argued that the USSR shaped the UNCHE agenda more despite its boycott than its breakup states shaped the UNCED agenda in spite of their presence. 12. In a move that took his long-time American allies by surprise, the Vietnam issue was brought up first by the host Premier, Olof Palme. In a strongly worded speech he condemned ecological warfare in Southeast Asia. However, the U.S. State Department considered Vietnam extraneous to UNCHE and felt deeply disturbed at what the chief U.S. delegate at Stockholm considered gratuitous politicizing of the conference. Nuclear test-bans were another Cold War issue that dogged UNCHE. Peru and New Zealand were the initiators, aiming their wrath against France, at that time conducting such tests in the South Pacific. The U.S. proposal to call for banning such atmospheric tests was met unfavorably by China, joined by some Southern nations, who wanted “the complete prohibition and thorough destruction of nuclear weapons.” The Chinese spoke out against “nuclear monopoly, nuclear threats, nuclear blackmail . . . [and] . . . nuclear stockpiling . . . by the superpowers”



13.

14.

15.

16.

17.

18.

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(United Nations, 1972; Hill, 1972; Rowland, 1973; Pell and Case, 1972; New York Times, June 7, 8, 11 and 14, 1972). Canada, the United States of America, and Sweden had presented draft proposals during the preparatory process. In The Plot to Save the World, UNCHE historian Wade Rowland (1973) writes that “the documents produced by United States of America and Sweden were innocuous in the extreme” and were described as “shocking nondeclarations” by one delegate. It was from the Canadian proposal that the draft declaration emerged. In some cases, such as those in the Pacific Rim, the economic conditions had improved dramatically. However, in most countries things remained as bad, and in some—especially in Africa—had turned worse (South Commission,1990; Bello, 1989). The official report of the Stockholm conference (United Nations, 1972) as well as other accounts of its deliberations (Rowland, 1973; United Nations Environment Programme, 1982) fondly refer to it as the first United Nations Conference on the Human Environment, and foresee a second such conference. In fact, a resolution passed at Stockholm called on the U.N. General Assembly to “convene a second United Nations Conference on the Human Environment.” Canada and Mexico even offered to be its hosts. Interestingly similar calls were also made at Rio, and once again Canada offered to be a prospective host. The 1987 Report of the World Commission on Environment and Development (WCED) is popularly known as Our Common Future (World Commission on Environment and Development, 1987), while the Commission itself is remembered by the name of its chairperson, Gro Harlem Brundtland, prime minister of Norway. The WCED Report was one of the motivations behind UNCED and was specifically mentioned in the first U.N. General Assembly resolution (No. 43/196) on the subject. Earlier, resolution 42/187 had, in welcoming the WCED Report, paved the way for the inclusion of the sustainable development concept into U.N. vocabulary. Even the world’s leading financial institutions have begun embracing the linkage, at least in words. The UNCED momentum was largely instrumental in the publication and timing of the first World Bank Development Report that focused on development and environment (World Bank, 1992; see also Steer, 1992). Interestingly, the 1992 report’s major thrust is little different from the statement made by the Bank’s then-president, Robert McNamara, who had stated at Stockholm: “There is no evidence that the economic growth which the developing countries so desperately require will necessarily involve an unacceptable burden on either their own or anybody else’s environment” (quoted in Rowland, 1973). Interestingly, at Stockholm the World Bank was proudly boasting of the (then) recently established post of environmental advisor while at Rio it was boasting of its (now) recently updated environmental division. The questions of finance—of additionality and responsibility—which the South thought had already been settled by 44/228, were reopened and left hanging. While some additional money was committed, no framework of commitment was developed. More importantly, the money committed was assistance rather than compensation and was thereby subject to the same donor control and political motivation as all existing aid. In the case of institutional reform—that is, of democracy and transparency in international governance—the innovative mechanisms and institutional improvements that 44/228 had been looking for were not found and the status quo ensued. While the UN Commission on Sustainable Development is some headway, the principal institution of concern to the South, the World Bank, remains as undemocratic and untransparent in its functioning as ever. The


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19.

20.

21. 22.

23.

issue of technology transfer, which lies at the intersection of the institutional and financial arrangements, suffered a similar fate and was sacrificed at the altar of intellectual property rights. Given the South’s strength of numbers the North has long been wary of allowing the South to play too forceful a role in international institutions. Werner Levi (1979) was pointing out 14 years ago that the international legal system is being “disadvantageously affected” because “the developing states are changing their tactics from making demands in international forums to assuming active roles in international institutions; they are trying to use international law to obtain a greater share of the world’s wealth; and above all, and affecting everything else, the developed and developing states take two totally different approaches to the regulation of their relationship.” His last insight is of great relevance. The single biggest hurdle in the UNCED process remained the totally different meanings that the North and the South attach to environment, development, and the environmentdevelopment interaction. For an interesting record of the development of the NIE(co)O/North-South debate within international fora see A New International Economic Order: Selected Documents 1945–1975 (UNITAR, 1976). Also see The North-South Dialogue: A Brief History ( Jones, 1983), The Emergence of the NIEO Ideology (Murphy, 1984) and Global Dialogue: The New International Order (Menon, 1977). Bhagwati (1977) and Doran and others (1983) provide a good sampling of the dependency debate; the story of the oil crisis of 1973 and its effects on the NorthSouth dialogue are discussed in Allen (1979) and Askari and Cummings (1978); and the implications of the NIE(co)O movement for the South are discussed in detail in Agarwala (1983) and Haq (1980). For a review of the history of the G-77 see Geldart and Lyon (1980) and for an authoritative sampling of the views that shaped the NIE(co)O see The Poverty Curtain (Mahbub-ul-Haq, 1976). For a useful discussion on the South’s insistence on changing international economic regimes see Krasner (1985). The current credibility of the Bretton Woods twins in the South ranges from those who consider them to be tools of neocolonialism to those who consider them necessary evils. Works such as Development Debacle: The World Bank in Philippines (Bello and others, 1982) have detailed how programs sponsored by these agencies have sometimes been detrimental to the South’s development. Few, if any, in the South consider the existing framework of these institutions as democratic or sympathetic to the South’s interests (see Abugre, 1992; Bakshi, 1992; Bello, 1989; George, 1988; Lang, 1992; Peng, 1991; Shiva, 1992a; South Commission, 1990; Woddis, 1967). Illustrative of the reasons behind the South’s disdain for the World Bank was a recent confidential memo from the bank’s chief economist, Lawrence Summers, in which he asked, “Shouldn’t the World Bank be encouraging more migration of the dirty industries to the LDCs [less developed countries]?” In preempting the arguments against such a proposal he notes that “the problem with arguments against all of these proposals for more pollution in LDCs (intrinsic rights to certain goods, moral reasons, social concerns, lack of adequate markets, etc.) could be turned around and used more or less effectively against every [World] Bank proposal for liberalization” (Economist, 1992). Like many in the South, Susan George found it to be “a perfect example of what the Bank thinks and is” (quoted in BankCheck, 1992). For a useful discussion of how the South may become an important force in future environmental dialogue see Marc William (1993).



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24. What can be especially promising for the South is that scholars, and even politicians, in the North have realized that environmental management may require new economic paradigms (see for example Daly, 1977, 1991; Gore, 1992). While their proposals may be different from those of the South, the common thrust reinforces the South’s interests. 25. This strategy is based on the insights received from major texts in negotiation theory. Of particular importance are The Art and Science of Negotiation (Raiffa, 1982), Social Conflict: Escalation, Stalemate, and Settlement (Pruitt and Rubin,1986), Breaking the Impasse (Susskind and Cruikshank, 1987), The Practical Negotiator (Zartman and Berman, 1982), Getting Together (Fisher and Brown, 1988), and Getting to YES (Fisher and others, 1991). Specifically on international environmental negotiations this strategy is influenced by Chapter 7 of Lawrence E. Susskind’s forthcoming Environmental Diplomacy: Negotiating More Effective Global Agreements (Susskind, 1992) and by the proposals of the Salzburg Initiative (Susskind, 1992). 26. This is not to suggest that the past is past and therefore irrelevant. The South’s case for demanding reparation is indeed compelling. However, while the past is never inconsequential, it must always be placed and seen in context. The South needs to build the case for past compensation logically, rather than emotionally. To ask the North to pay for the sins of Christopher Columbus and the havoc of five centuries of colonialism is tempting, but futile. Yet, to insist on changes in the systems that are the legacies of those practices is both desirable and logical. 27. This section is largely influenced by presentations given by Prof. Roger Fisher (on 9 December, 1992) and by Prof. Lawrence Susskind (on 8 April, 1993) as part of various Program on Negotiation seminars. It is also informed by McCarthy (1991), Fisher (1991), and Fisher and others (1991). For an interesting case study discussion on how weak nations bargain with strong nations see Power and Tactics in International Negotiation by William Mark Habeeb (1988). 28. To cite two examples, while the South’s contribution to ozone depletion is minimal, it will be affected no less than those who have benefited from the chemical use that created the problem. Similarly, the South is likely to suffer at the hands of climate change far disproportionately from its contribution. 29. Prof. Roger Fisher cites six “crippling assumptions” about negotiation: (i) we are more powerful and therefore we can relax; (ii) we are less powerful and therefore there is no point in trying; (iii) all power is fungible; (iv) the power to destroy is the power to persuade; (v) pain is equal to pressure; and (vi) military power is equal to negotiating power. In international environmental negotiations the North has long been caught in the first of these, while to varying degrees the South has succumbed to all the remaining five. 30. If interests are what brings a party to the negotiation table and the process is what drives them towards mutual-gain solutions, BATNA—or best alternative to a negotiated agreement—is what tells them when to say “yes” and when to walk out. In describing this concept, Fisher and others (1991) stress that “the relative negotiating power of two parties depends primarily upon how attractive to each is the option of not reaching agreement.” BATNA gives the negotiator a realistic measure of what exactly is a good, bad or just acceptable agreement. While BATNAs are liable to change as negotiations progress, and while BATNA assessment is never simple (Raiffa, 1982), investment of time and effort in carefully understanding and developing one’s BATNA is always worthwhile. According to Susskind and Cruikshank (1987) there is no better advice for a negotiator than: “Know


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31. 32.

33.

34.

35.

your BATNA and don’t lose sight of it.” More difficult, but extremely important, is an understanding of the other party’s BATNA. Whereas the knowledge of one’s own BATNA affords a negotiator a safety net against bad agreements, an appreciation of the other party’s BATNA can accelerate good agreements. Quoted in Third World Resurgence, Aug-Sep, 1992. An important manifestation of a redefined agenda is the reframing of issues already on the table. As an example, consider the thorny question of financial arrangements. The South demands financial assistance but is unwilling to relinquish control of its sovereignty. The North, even where willing to pay, doubts the South’s capacity (French, 1992; Chayes and Skolnikoff, 1992) and will (Hollick and Cooper, 1991) to fulfill any commitments it makes. Reframing the debate from one of delivery of aid to compensation for liability and services—as some in the South have been proposing (see Agarwal and Narain, 1991; Agarwal, 1992; Peng, 1992)—may, in fact, be a win-win solution. Agarwal’s (1992) proposal is that “the argument that the rich must pay their ecological bills must ring out loud and clear.” However, he realizes that committing to such a strategy might include going a step further and “the South must be prepared to take the moral high ground, where it must make it absolutely clear that it is not looking out for any money whatsoever. It should ask for nothing less than systemic changes in the world’s political and financial systems so that fair and equitable systems of environmental discipline can be enforced for all, including the South . . . And in this process the South should make it clear that if it gets anything, well and good, but otherwise it does not want a penny more.” For related discussion; see Agarwal and Narain, 1991; Benedick, 1991; Chayes, 1991; Mathews, 1991; Peng, 1992; Sand, 1991; Schelling, 1991; Sebenius, 1984, 1991; Skolnikoff, 1990; Susskind, 1992. At one point during the protracted and unproductive debate on the Declaration, a Canadian delegate suggested that he envisioned it as a “poetic and inspirational statement that could inspire ecological values in the next generation: something a little girl could hang on her bedroom wall.” To this, one Southern delegate reportedly replied, “in my country little girls do not have bedrooms.” This was a defining moment which exemplified the stark differences between environmental perceptions of the North and the South. Interestingly, at Stockholm too the North had intended the declaration to be a brief poetic statement, while the South had insisted that it be a tangible statement of principles. The U.S. delegation, for instance, remained unhappy with the text, particularly principle 3 (opposition to the right to develop), principle 7 (rejection of any interpretation that would imply a recognition or acceptance by the United States of any international obligations or liabilities, or any diminution in the responsibilities of developing countries), principle 12 (insistence that in certain situations, trade measures may provide an effective and appropriate means of addressing environmental concerns), and principle 23 (insistence that nothing in the Declaration prejudices or predetermines the status of any territories under occupation or the natural resources that appertain to such territories; also, insistence that the Declaration does not affect the rights and duties of occupying powers under the laws of war). The United States kept the Declaration open till the closing moments of the conference, when with no other country joining in their protest, they issued a written statement listing their formal reservations (in parentheses above) as interpretive statements for the record. The only contentious issue that remained was principle 23 referring to people under occupation. After extensive brokering by conference Chairman Tommy Koh, a compromise was reached whereby the language remained unchanged in the Declaration but all



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references to “people under occupation” were removed from Agenda 21 (various issues of TerraViva, Earth Summit Times, Earth Summit News, and SUNS). 36. The second implies a strategy similar to that adopted by the North where European and North American nations remain in a loose alliance that allows them to disassociate efforts when needed, without dissolving the larger tactical alliance. 37. Arguably, the Organization of Economic Co-operation and Development (OECD) and the Group-of-7 (G-7) are bloc coalitions of the North, just as the G-77 is a coalition of the South.



Y PART TWO

A SHIFTING CAST OF CHARACTERS Beyond the State as Unitary Actor

nternational environmental treaties are no longer the domain of governments alone. Whether in identifying environmental problems for global discussion, shaping the interests and positions of the states involved in the negotiations, or monitoring nations after ratification to ensure compliance, states are far from the only parties involved. Who comprises this new cast of characters? Chief among them are the members of the private sector, NGOs, networks of academics, and the media. Any discussion of global environmental politics would be wildly incomplete without highlighting the importance of nonstate actors. Relative to other international agreements, the environmental policy cycle has included nonstate actors as essential players; these have included nongovernmental organizations, industry groups, and scientific organizations. NGOs, scientists, and the private sector have helped to identify environmental issues and place them on the international agenda. They have also played decisive roles in the creation of the international regimes themselves, and in determining their effectiveness. According to one estimate, the number of multinational corporations has grown from 7,000 in 1970 to over 50,000 with 400,000 subsidiaries by 1998. Since the stakes for them are high, it is not surprising that they have a found a way in to global environmental treaty making. These nonstate actors constantly provide expertise, advice, and political pressure during the entire cycle of international environmental negotiations. In

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differing ways, NGOs and industry groups can often change the mix of political costs associated with not having an agreement. Depending upon the strength of their constituencies in both domestic and international settings, these actors can exert a great deal of political pressure on negotiators. Such pressure helps maintain political momentum when negotiations begin to drag or lose their urgency. Scientific communities bring issues to the table and help to draw attention to them in different ways. Such groups and individuals often report scientific findings or the results of broad assessments of problems such as the recent reports of the Intergovernmental Panel on Climate Change. Nonstate actors play seminal roles during and after the formation of environmental regimes as well. In the creation of a regime, scientists, industrial spokesmen, and environmental advocates often form part of official negotiating delegations, or serve as facilitators and advisors during that process. Advocates and industry representatives often rely on their clout with the media or their influence with key decision makers. The following chapters discuss the evolving role and influence of non-governmental actors in environmental treaty making, and suggest ways in which these actors might contribute to collaborative decision making.


Y CHAPTER FOUR

VOLUNTARY CODES OF MANAGEMENT New Opportunities for Increased Corporate Accountability Anne M. Weiss

fter 25 years of U.S. government attempts to regulate companies so that they better meet the expectations of society, industry has recently emerged not only as a prominent contributor to environmental problems, but also as a resource for solving them. This new business role—helping to slow or reverse environmental degradation—has prompted many companies to proclaim the benefits of environmental conservation and management programs. Voluntary corporate environmental management programs like the Coalition for Environmentally Responsible Economies (CERES) Principles, the Global Environmental Management Initiative (GEMI), Responsible Care, and the Business Charter for Sustainable Development were all initiated between 1989 and 1991. Skeptics believe the newly espoused environmental programs are public relations maneuvers or programs that provoke only marginal environmental changes. However, as a result of such voluntary codes of environmental management, many firms have undertaken activities including environmental auditing, public disclosure, and the incorporation of environmental representatives on the boards of directors. While these actions are not widely publicized, they often expose the firm to increased scrutiny.

A

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Incentives to Improve Environmental Performance Why have companies sought to improve environmental performance? Companies have realized that a variety of stakeholders—from the general public to shareholders—can dramatically affect siting, insurance and purchasing decisions, and regulation. Companies seek to appease these influences by improving credibility as legitimate environmental actors. One mechanism for gaining public respect and confidence is to go beyond compliance, or to add a level of accountability through increased disclosure, and commit to continual environmental improvement. Increasingly, companies are adopting voluntary codes of environmental management as tools for improving accountability and for raising their credibility as responsible environmental actors. Often they are driven to improve environmental performance even when they do not benefit significantly from improved public relations. This chapter acknowledges the presence and influence of economic explanations for corporate environmental actions, but asserts that corporations adopt voluntary codes of management in response to changing environmental and social norms in an attempt to increase their legitimacy and credibility in the eyes of stakeholders. Stakeholder Pressure Environmental organizations frequently have tried to convince firms to improve their environmental performance by arguing that it is economically beneficial to adopt more extensive environmental management practices. Many companies have publicly affirmed the value that such practices add to their operations. The economic benefits a company can achieve from instituting such practices, however, do not fully explain the increase in corporate expenditures on environmental programs. Studies suggest that factors motivating corporate environmental reform exist beyond the firm’s boundaries and outside of the rational economic model (Hoffman, 1995). External pressures on the firm for increased environmental management include competitor behavior, government, and environmental interest groups, as well as the firm’s stakeholders. Stakeholders are individuals or groups who have interests at stake in a corporation. They include the individual and pension shareholders, owners, employees, customers or clients, suppliers, and the community within which the corporation conducts business. Considering the scale and scope of corporate influence, this could include virtually everyone. While stakeholders have diverse interests, they all share a concern about the role that business


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plays in society and the need for companies to develop new ways to accommodate emerging social needs and concerns. Corporate Influence and Expansion Even when U.S. corporations operated predominantly within the country and exported only their own products, there was concern that they might abuse their power. Still, it was assumed that the state could control corporate power though anti-trust regulation and labor agreements. Acceptance of corporate profit making was based on the notion that corporate activity was subject to state control and that profit maximizing was a societal good. During the last decade, corporate power and related concerns have escalated because corporations have found it profitable to export capital and set up production facilities in other countries. Once it became evident that large corporations could escape societal and state control by becoming multinational entities, corporate legitimacy began to disintegrate (Gordy, 1993; Monks, 1990). The declining social acceptance of the current corporate system is “directly related to perceived inconsistencies between the way firms do business and the changing goals and priorities of people in society, in other words, a questioning of corporate power and authority, and of how that authority is being used” (Sutton, 1993, p. 3). A multinational corporation might have operations in 60 countries, employ hundreds of thousands of people, command vast amounts of resources, and control sums of wealth that are greater than the GDP of many individual nations. The multinational however, is not the only corporation with vast authority. In the United States, large domestic corporations also undertake a substantial part of total economic activity. Corporations are often the single employer in a town or county. They are a major economic force, able to radically affect entire regions as they expand or lay off employees. They provide the physical and natural environment for consumers and nonconsumers on the domestic or international scale in which their employees live and work. Their development of toxic or carcinogenic substances can affect the safety and quality of life for national and international populations (Bavaria, 1986). Throughout the world there are social pressures, in varying degrees of intensity, demanding that power be used for the public benefit. As the wealth and power of corporations increase, the public need and demand for accountability become increasingly direct (Berle and Means, 1933). While corporations will continue to both affect and rely upon the well-being of society and the natural environment, it is not reasonable to expect industry to shape the future of societies solely according to societies’ own needs. Business leaders are being summoned to address a significant number of challenges that previously were duties of the public


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sector or had not yet reached the scope of today’s challenges. While individual business executives may not consider themselves to be wielders of power, the sheer scale of corporate activity indicates otherwise.

Corporate Responsibility Until recent decades, the singular corporate goal of pursuing profits went largely unchallenged, and the corporation was perceived as successful in fulfilling its purpose. The recent movement to influence business activity toward social responsibility has emerged for several reasons. First, concerns mounted with the recognition that societal problems are outdistancing the capacity of public agencies to deal with them, and that corporate activity may contribute to these social problems. Second, there arose widespread recognition that corporations wield a great amount of power, with limited accountability. Third, societal values have changed immensely; short-term financial gain at the expense of resources, the environment, and the “quality of life” in general is no longer accorded the acceptance it once enjoyed (Sutton, 1993). Increasing recognition of the negative externalities attributed to the market economy approach has resulted in a multitude of attempts to control business activity and to make corporations more responsive to societal concerns. This two-decade trend of holding corporate managers accountable for socially damaging policies has been termed “corporate social responsibility.” Criteria for an Environmentally Responsible Company Several models have attempted to fit environmentally responsible corporate activities into categories like core, expanded, and sustainable. These terms are intended to describe the types of activities in which a company participates and its commitment to environmentally responsible behavior ( Joly, 1992). Other models describe a broad spectrum ranging from those firms that have never considered the environment to those firms devoted solely to improving the environment (Ford, 1992). One could argue that an extractive industry (such as oil or timber) is inherently environmentally destructive and does not promote social responsibility. However, one could argue that it is possible for industries to be managed responsibly; some corporations are proactive in worker safety, recycle their waste, and are technologically innovative. Debate also surrounds those industries whose purpose is the manufacture of pollution control technology or remediation techniques. To some, these practices appear to be environmentally beneficial, while to others, such



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practices seem to profit from and thereby promote environmentally destructive behavior. While these models offer a basis for analyzing corporate responsibility, they are still overly simplistic and rely on the easy categorization of corporate activity. It is important to evaluate production processes, management policies and practices, and areas of the company’s activities that may conflict with environmental goals, in order to determine the level of company responsibility. To date, there exists no generally accepted definition of what is socially and environmentally responsible. There are no specific criteria that a company must follow or actions that it must avoid. As demands from stakeholders are more clearly articulated, it is likely that the requirements for corporate environmental responsibility will evolve. Trends in Social and Environmental Responsibility Although many companies began social responsibility programs in the 1960s, these attempts were insufficient to meet public expectations. Businesses of all sizes were questioned about their ability to provide quality services and products. The public demanded labels and advertising that was honest and more complete (Corson and Steiner, 1974), as well as more information about impending plant closures, toxic chemical use and transportation, and health risks to employees. Disclosure of this information has been, and remains, the most difficult aspect of social responsibility for companies.

Government Regulation In an effort to control business activities and their negative impacts on society, the U.S. government turned to regulation. There are numerous laws that attempt to regulate the environmental effects of contaminants. They range from controls on specific emissions, to laws prescribing specific technologies, to retroactive laws aimed at cleaning up contaminated sites, to laws requiring the public sharing of information. They have resulted in significant improvements in air, water, and soil quality and occupational health and safety. While it is widely accepted that these laws have had a positive impact on the natural environment, it is debatable whether they remain appropriate or necessary. Economists, business managers, and environmental researchers and advocates are familiar with the concept of diminishing returns: large quantities of emissions or contamination may be reduced or remediated with an initial investment. But removal of the last 10 percent or so might cost as much as the initial 90 percent. In addition, most existing environmental regulations aim to control pollution by


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prescribing specific technologies or performance standards. Yet, business leaders and many environmental researchers and advocates now recognize that environmental issues are increasingly complex and extend beyond the scope of traditional regulation.1 As a result, such command-and-control regulations have been severely criticized as economically inefficient and ineffective in addressing the moving targets of many environmental problems (Orts, 1995). However, this mutual recognition of the relative decline in benefits derived from strict command-andcontrol regulation does not translate into agreement on the direction that environmental laws should take now and in the future. There are several factors that explain why legislative approaches are limited in their ability to achieve a balance between corporate behavior and the needs of society as a whole. Stone suggests that it is the very nature of law that stifles its ability to achieve corporate responsibility. First, laws are often devised in response to events and are limited by availability of scientific and technical knowledge. Uniform statutes are not easily adapted to changing circumstances. Because laws face a time lag problem, they are often passed only after the damage has been done, and the damage is frequently severe (Stone, 1975). Second, corporations often play a very large role in formulating the laws that govern them. This is not necessarily the result of corporate bribery or intimidation to attain influence. Rather, corporations have an interest in reasonable regulations and are often willing to supply relevant data to help determine standards, technology, or time lines. Third, society often attempts to create legislation in response to situations that lack consensus on cause, effect, and outcome. Under these circumstances, laws tend to be vague, cumbersome, and inconsistent, and might not even address the problem. While societal expectations are continually changing, law is more formal and requires consensus and a general level of consistency. Fourth, the law is generally an expensive means for regulating corporate behavior (Stone, 1975). It works reasonably well when it seeks to address minimum standards for corporate conduct, but falters when it tries to establish ideals. Attempts to legislate beyond a minimal level generally result in high costs of implementation and enforcement (Stone, 1975).

Alternatives to Additional Legislation and Command-and-Control Regulation Generally, the drive to intervene for environmental purposes has originated with nongovernmental organizations (NGOs) concerned about activities they view as harmful to the environment, and with governments that impose command-andcontrol regulations. Increasingly however, companies are utilizing nonregulatory, alternative guidelines (henceforth called voluntary codes2) to proactively manage



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their environmental impacts in an effort to gain public trust and institutional legitimacy. Several different voluntary corporate standards have been created, all with similar goals—to introduce to business the idea of an environmental ethic and to design a framework for information generation and evaluation. The codes of management are not “regulatory” in nature and do not dictate standards or methods by which to meet goals. Rather, the voluntary environmental codes are general recommendations intended to guide companies toward important environmental issues, thereby allowing each industry and company to tailor its own environmental programs as appropriate. The adoption of voluntary management codes is on the rise in the United States and elsewhere. This chapter asserts that by committing to such guidelines, corporations are striving to change public perception and to gain stakeholder approval of corporate activities. A Corporate Advantage? Voluntary environmental codes offer short- and long-term benefits. Addressing environmental problems often reduces the costs of production. Voluntary standards enable companies to hurdle regulation, thus eliminating the need for more environmental mandates. In minimizing the risk of future regulatory demands, companies reduce litigation and remediation costs (Fri, 1992). Alternatively, if business leaders ignore environmental initiatives until they appear on an official agenda, the leaders find that they are subject to demands that they already could have anticipated and incorporated into management practices (Fri, 1992; Wright, 1994). If voluntary standards or elements of voluntary codes were to become compulsory, companies which have environmental management and reporting frameworks would have a competitive advantage in the race to stay ahead of regulations and public concerns (Skinner, 1993).3 The promotion of a voluntary code can provide stability for a company. Environmental codes of management allow corporations to create a context for environmental actions by utilizing a single system of audits and accounting, and to employ consistency in production processes. A voluntary code translates amorphous demands from stakeholders into a program for consistent improvement in all stages of corporate activity. An equilibrium in expectation and regulation allows companies to make confident decisions and investments in long-term environmental improvement that will not be undermined if the political climate changes (Susskind, 1992). Voluntary codes, if promulgated fully, also have the benefit of improving a corporation’s reputation. If the reputation of a corporation is questionable, or no


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longer accepted, eventually the firm will lose public approval. Corporations that face a loss in credibility—which, in turn, generates concern for their ability to provide material needs while managing the environment—must develop mechanisms “for the production and maintenance of impersonal trust” (Simmons and Wynne, 1993, p. 203). One mechanism for reducing uncertainty is to establish the rules by which the institution will be governed. By establishing “diffuse relations of trust based on the shared expectations about the social rules that govern a particular activity or situation,” corporations can increase their credibility in the eyes of the public (Simmons and Wynne, 1993, p. 202). Creating impersonal trust through voluntary codes of management helps corporations to meet the proactive environmental stance that stakeholders increasingly are coming to expect. A strong environmental reputation positively affects demand for a corporation’s existing products, as well as the corporation’s ability to recruit scientists and researchers who develop new and competitive, quality products. Recent market surveys conducted by Gallup and Harris indicate that consumers are willing to pay more for environmentally sensitive products, and 70 to 80 percent of consumers have indicated that environmental policies affect their purchasing decisions (Smith, 1991). While going beyond compliance to preserve one’s reputation can reduce short-term profitability, efforts to maintain a good relationship with key stakeholders and preserve a good reputation in the market are sound practices that are likely to pay off in the longer term (Fri, 1992). The Concept of Voluntary Codes of Management Initially, companies responded to increasing pressure from stakeholders by including environmental information in annual reports and other public materials. The information provided has ranged from one sentence about “environmental friendliness” or “sustainable development” to lengthy documents discussing production techniques, emission levels, compliance records, and waste disposal techniques. Despite the trend towards increased availability of information, the wide disparity in information provided has not allowed an easy analysis of companies’ environmental commitments and long-term management strategies. Disclosure of information has also been disconcerting for companies that wish to act and be perceived as environmentally committed, but are unsure of the factors on which they will be evaluated and how their information will be interpreted. As global markets expand, so does public awareness of multinational activity and its impact on the environment. Stakeholders are no longer convinced that existing methods of disposal, and levels of energy consumption and pollution caused by corporate activity, are necessary sacrifices they must make in exchange for the goods they desire. Society has come to expect businesses to take on more



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responsibility for the impacts of their activities on the environment and human health. Fueled by the view that businesses have the capacity and opportunity to cause significant change in the environment, the public has come to question companies’ current practices. In addition, compliance with government-imposed environmental standards has not provided assurance to the stakeholders who are concerned about corporate behavior. As a result, pressure groups are looking for ways to create regulation that is less rigid and uses market and social pressures to impose change on corporate activities.

Examples of Voluntary Codes of Management European Voluntary Codes Institutions that set national standards have been competing to develop a definitive environmental management system (EMS) standard. The British Standards Institute was the first organization to submit a draft EMS standard, British Standard (BS) 7750. BS 7750 recommends that corporations define, document and communicate their environmental policy; define responsibility; set specific environmental objectives; maintain documentation and management records; and conduct audits. The guidelines do not suggest external audits, specify the disclosure of general records or records from audits, or require continual improvement. Shortly after BS 7750 was submitted, the French standards body, AFNOR, submitted its own EMS standard. Spain and Ireland soon followed. In October 1994, the European standards body (CEN) accepted a formal mandate from the European Commission to establish a European-level EMS standard. Meanwhile the International Standards Organization (ISO) is currently drafting an international standard, ISO 14001 (Orts, 1995). The goal of ISO 14001 is to influence companies to create measurable environmental management systems. In the summer of 1993, negotiations began between the ISO, environmental ministries, and corporations in an attempt to incorporate an environmental component into existing, internationally accepted ISO 9000 quality standards. ISO 14001 is the result. It is expected be ready for adoption in late 1996, but several more years will pass before it is in widespread use.4 In the meantime, ISO 9000 certification5 is now required for all products sold in Europe,6 and proponents suggest that ISO 14001 will also be a de facto requirement for production, distribution, and supply of products throughout the European Union (Oppenheimer and others, 1995; Orts, 1995; EWWE, 1994). The appeal for creating the ISO 14001 code in the image of ISO 9000 is that it would increase pressure on companies to consider the environment in their


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decision making. The argument is that environmental issues affect a company’s productivity and ability to provide quality services and, therefore, environmental policies within a company should be recognized as part of the quality of a company. The current draft of ISO 14001 would require businesses to establish and document environmental management systems. Some concepts not included in the ISO 14001 draft standard are auditing, with regard to continual improvement standards, and a public environmental statement that summarizes the results of the audit (EWWE, 1994). As with ISO 9000, there exists concern that it is possible for a company to produce a well-documented system without achieving the desired effect of environmental benefit. ISO 14001 has the potential to significantly affect corporate environmental performance, provided that the internal environmental policies that companies adopt bring about necessary improvements in production and management processes. At this time, the precise guidelines have yet to be determined. A similar attempt to affect corporate behavior through voluntary mechanisms, and one that could also have widespread and international implications, is the European Eco-Management and Audit Scheme (EMAS).7 In fact, the European standards body has decided that ISO 14001 is compatible with EMAS and intends to use ISO 14001 as the European standard; at the same time, EMAS is influencing ISO discussions. The EMAS program was initiated by the European Union Commission, a government agency. The program is very similar to ISO 14001. However, EMAS requires the adoption of a corporate environmental policy and an environmental statement that illustrates a systematic approach to environmental protection. Member corporations must evaluate the effects of current and past operations and activities (Oppenheimer and others, 1995). EMAS also requires public disclosure of the results of periodic environmental audits (every three years with internal auditors chosen by the company) of the management systems and environmental performance. These statements are verified by accredited environmental specialists who register with designated regulatory bodies (Orts, 1995). ISO 14001 requires audits but does not specify audit frequency. In both programs, companies must undertake an initial environmental review, from which environmental programs and management systems for registered sites are established. United States Government-Generated Voluntary Codes Nothing near the level of EMAS or ISO 14001 has yet been considered seriously in the United States. In fact, the U.S. Environmental Protection Agency (EPA) is currently under pressure to regulate with a lighter hand and to issue directives based on voluntary participation.



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The 33/50 Program. The Pollution Prevention Act of 1990 required the EPA to

institute a number of voluntary programs that were aimed at promoting pollution prevention. The more popular program, the “33/50” program, solicited companies to voluntarily participate in the reduction of 17 toxic chemicals. Based on the baseline data from the 1988 Toxics Release Inventory, the companies were asked to reduce emissions 33 percent by 1992 and 50 percent by 1995. Participants in the program include 1200 American corporations. Although participating companies have reduced their use of toxic chemicals, the program has been met with mixed reviews.8 Audits. In response to the massive chemical accident in Bhopal, India, the

Superfund Amendments and Reauthorization Act (SARA) Title III legislation was passed to establish formal right-to-know procedures and to require publication of inventories of toxic compounds. SARA legislation allows environmental advocates, residents, and regulators to compare the amounts of certain chemical emissions that a company releases annually, beginning in 1988 (the first year the information was required). Since that time, companies have been under increasing pressure by these groups to provide more information. Stakeholders demand data regarding management systems, environmental policies, release levels at individual facilities, and a multitude of other information about a company’s environmental responsibility. Advocates of environmental audits assert that an audit would determine if the appropriate and necessary management systems are in place and functioning, much as a financial audit forces a company to take account of its revenue, sales, costs, and liabilities (Friedman, 1992). It is possible that an internal audit would be a useful tool for managers and stakeholders alike. External audits could verify the information provided. In 1989, the International Chamber of Commerce (ICC) Working Party defined an environmental audit as “a management tool comprising systematic, documented, periodic, and objective evaluations of how well environmental organization, management, and equipment are performing with the aim of helping to safeguard the environment.” The ICC described the auditing process as a mechanism for facilitating management control of environmental practices, assessing compliance with company policies, and meeting regulatory requirements (Eckel and others, 1992). An external audit, combined with public statements of commitment and intent, creates a powerful incentive for corporations to make a considerable investment in their environmental performance. In addition, an external audit formalizes informal practices of self-regulation. Such an auditing scheme allows the public to expect the same information from all companies and sites (Burke and Hill, 1990; Simmons and Wynne, 1993).


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An externally conducted and accredited evaluation is likely to carry more weight with the public than internally constructed and produced self-regulation. The public historically has perceived punitive sanctions as proof that the government takes environmental performance seriously. If companies hope to avoid more regulation and to benefit from non-command-and-control regulation they must be able to convince shareholders that alternative control mechanisms, such as internal audits, policy reformulation and external accreditation, truly work. Informal control mechanisms that are invisible to outsiders will lack credibility to stakeholders regardless of how well they work (Simmons and Wynne, 1993). Failure to disclose information, even data that demonstrates continual improvement, is equated by many stakeholders with a lack of accountability.9 In 1986, the EPA adopted an Environmental Auditing Policy to encourage the adoption of environmental auditing programs. Its stated objective was to help “ensure the adequacy of internal systems to achieve, maintain and monitor compliance . . . [and] establish sound environmental management practices to improve environmental performance” (EPA, 1995). The incentive that EPA provides is a more lenient enforcement response, provided the firm makes a real effort to correct violations and underlying environmental problems in a timely manner. On 31 March 1995, the EPA adopted a new policy on environmental audits which offers significantly reduced penalties and protection from criminal referrals to facilities that voluntarily disclose and correct violations identified through the audits.10 This policy is an attempt to provide the “regulated community [with] predictability and to reward environmentally responsible actions, without unduly limiting vigorous enforcement of . . . environmental laws or the public’s right to know” (EPA, 1995). Private Voluntary Codes of Management In addition to the upcoming ISO 14001, EMAS, and BS 7750, several other voluntary standards have been promoted by U.S. corporations: the Business Charter for Sustainable Development, Global Environmental Management Initiative, Responsible Care, and the CERES Principles. All were created by international business organizations, industry groups, and nongovernmental organizations (NGOs). Their guidelines range from broad, nonbinding agreements to more specific actions that must be reviewed annually in a report and audit. The standards also call for a varying level of public accountability and disclosure of information. Examples of Programs. In April 1991, the International Chamber of Commerce

organized a second World Industry Conference on Environmental Management (WICEM II). At the conference, participants assessed progress that has occurred on environmental issues since the first WICEM and they aimed to create



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momentum for elevating interest in environmental issues (Rappaport and Flaherty, 1992). Industry participants were encouraged to sign ICC’s Business Charter for Sustainable Development. The ICC’s guidelines suggest that companies establish policies, programs and practices for conducting operations in an environmentally sound manner and that “each company’s management should promote among its employees at all levels an individual sense of environmental responsibility and should educate and encourage them to be alert to potential sources of pollution and to sound resource conservation measures within their operations” (Rappaport and Flaherty, 1992, p. 10). The guidelines suggest that firms continuously improve performance, reduce environmental impacts, measure and report compliance, and recognize the environment as a top priority, but they do not require audits or provide a specific format. The Global Environmental Management Initiative (GEMI), formulated by a group of U.S. multinationals, is designed to stimulate, assemble, and promote worldwide deliberation on matters of environmental management; improve the environmental performance of businesses worldwide through example and leadership; promote a worldwide business ethic for environmental management and sustainable development; enhance the dialogue between business and its interested publics, such as NGOs, governments, and academia; and forge partnerships around the world to encourage similar efforts in other countries (Rappaport and Flaherty, 1992). In 1985, considerable media attention focused on Union Carbide’s second accidental chemical release. The Chemical Manufacturers’ Association (CMA) realized that its proactive involvement in legislation was not enough to prevent chemical accidents and it lost credibility. In 1990, in response to its low ratings, the CMA introduced the Responsible Care program, an environmental management program designed to regain the public’s trust in the aftermath of accidents in Bhopal and elsewhere. The principles of Responsible Care are now embraced by most of the chemical industry worldwide. As a condition of membership in the CMA, companies must pledge to operate according to the Guiding Principles for Responsible Care of Chemicals. The standard is comprised of 11 guidelines that call for a collective improvement in health, safety, and environmental performance. The evaluation of a participating firm’s performance involves the firm reporting, in nonspecific terms, its progress in the implementation of individual management practices. Performance in relation to the codes is not independently validated, and the codes are designed and enforced strictly by the CMA. Yet despite improvements in waste management, safer transportation, and public participation programs spurred by the Responsible Care standard, the chemical industry continues to face low ratings and has been unable to extract itself from a faceless, nameless, corporate power perceived as a part of the big, bad “them.”


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The Canadian National Round Table on the Environment and the Economy, Japanese Federation of Economic Organizations (Keidanren) , and petroleum industry associations also have proposed voluntary environmental management codes. The trend in sponsoring voluntary initiatives has been led primarily by forward-thinking business groups. The Coalition for Environmentally Responsible Economies (CERES) Principles are the only voluntary codes of management promulgated by a nongovernmental, nonindustry, nonprofit organization. In 1989, CERES developed ten principles for improved environmental management, including requirements for disclosure and internal audits. Unlike industry-sponsored plans, the CERES Principles outline the major corporate environmental responsibilities which then must be reported to CERES, a nonindustry, nonprofit, independent organization comprised of various environmental groups, the investment community, and other at-large organizations. CERES’s distinguishing feature of public accountability includes reporting criteria: CERES requires each endorser to submit an annual environmental report which is intended to provide the public with information not required by law and generally not provided by U.S. companies. CERES claims that by adhering to its principles, a company consistently makes changes in environmental policies and procedures that result in increased environmental sustainability. In addition, the required report, which indicates the progress a company has made in attaining the principles, provides the stakeholders with consistent, comparable, and widely disseminated information, thereby facilitating evaluation of environmental performance. Voluntary codes have been met with both applause and skepticism. Some environmental groups, consumers, government officials and regulators believe the guidelines are only a public relations strategy because signing the guidelines does not necessarily result in improved environmental programs or increase the availability of data. Some stakeholders have expressed concern that the standards are too broad and do not require companies to state the specific environmental policies and programs that they are undertaking. Others have complained that voluntary standards do not require an external audit and that, without such verification, stakeholders cannot be assured that appropriate and necessary management and monitoring systems are in place, functioning, and are integrated into business decision-making, thereby assuring the system’s continual effectiveness. Proponents of voluntary codes of management suggest that the codes provide flexibility and an environment more receptive to investment and capital expenditure in alternative manufacturing practices. They counter that commandand-control regulation hinders environmental programs. They also think that vol-



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untary codes reduce the adversarial relationships between corporations and environmental advocates, thereby promoting collaborative solutions and the exchange of important environmental data.

Corporate Responses to Voluntary Codes Recent research on voluntary codes indicates that environmental groups and corporate participants agree there is a need for more publicly available information; for oversight by a nongovernmental, nonindustry, independent group; and for some direct effort by the environmental community to work with businesses to advance environmental issues.11 In some cases, participants claim that companies that adopt voluntary codes disclose previously unreported information, interact more directly with stakeholders through the collaborative process, and make continual environmental improvements in their operations and management. Although some environmental groups and corporate representatives remain skeptical about the participation in voluntary codes of management carried out by individual firms, research indicates that these groups believe voluntary codes have made an impact beyond the individual firms that participate because they influence public expectations of what constitutes environmentally responsible behavior. The effect on the larger environmental arena can be seen in the actions undertaken by non-participating companies. While many companies were already providing some information in their annual reports and were interacting with stakeholders, voluntary environmental codes have furthered companies’ commitments to reporting and continual improvement. Voluntary codes have provided additional pressure, a process, and organization to which companies have had to react. “In response to the Valdez oil spill and the creation of the CERES Principles, corporate America has adopted progressive environmental principles tailored to the unique circumstances of particular companies. A heightened consciousness of the need to be a responsible steward of the environment has been achieved from the CEO down through the entire corporation. Consequently corporations have begun to think more seriously about the value of corporate environmental reports and disclosure of information” (Smith, 1993, p. 310). Many corporations that did not adopt the CERES Principles developed their own voluntary codes. CMA developed Responsible Care, and the American Petroleum Institute announced a set of environmental principles for its members. Corporations involved in the Business Roundtable established GEMI. The International Chamber of Commerce (ICC) formulated a set of Principles for Sustainable Development that was adopted by many international corporations. Although some companies have rejected these voluntary codes, many of those


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companies have instituted elements of the codes—issuing environmental reports, writing their own environmental policies, and creating the position of vice president for environmental affairs without officially adopting them. Increased Collaboration with Environmental Groups The CERES Principles call for a management commitment of “sustain[ing] a process that ensures that the Board of Directors and Chief Executive Officer are fully informed about pertinent environmental issues and are fully responsible for environmental policy. In selecting our Board of Directors, [endorsers] will consider demonstrated environmental commitment as a factor” (CERES, 1995). The rationale for these requirements is that environmental accountability requires established responsibility and a demonstration of strong upper management commitment to environmental initiatives. Although Exxon initially rejected the idea of appointing an environmental representative to its board, oceanographer John H. Steele became a board member shortly after the Valdez spill. In January 1990, Exxon appointed one of its top executives to the newly created position of vice president for environment and safety (Barnard, 1990). Many companies have since appointed environmentalists to their executive boards, including former EPA administrators William Reilly and William Ruckelshaus (Cahill and Engelman, 1993). According to a PricewaterhouseCoopers survey (the principal source that is collecting corporate environmental reporting and auditing trends), the recent inclination to appoint environmental representatives to the Boards is due to the government and the general public placing increasing pressure on companies to exercise environmental responsibility. This pressure is evidenced by the increasing number of shareholder proposals on environmental responsibility introduced at annual meetings and the increasing demands for information on companies’ environmental performance. In response, many companies have become proactive in establishing environmental policies and programs and in appointing highlevel oversight within the company to legitimize and enforce their policies and programs (PricewaterhouseCoopers, 1994, p. 29). The PricewaterhouseCoopers survey indicated that the share of companies that has established an environmental affairs oversight function at the board of directors level increased from 14 percent in 1990 to 23 percent in 1992, and it has nearly doubled (to 41 percent) since the 1992 survey. The report states that having someone knowledgeable about the environment at the board level sends a strong message about the importance of achieving the company’s environmental mission (PricewaterhouseCoopers, 1994).



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Many of the companies which have not placed environmental representatives on their boards have created alternative ways of introducing environmental issues to upper-level management. Environmental committees or divisions have become more prevalent within corporations in the United States. As of mid-1992, well over one-third of the Fortune 100 companies had established board level committees for public policy or environment, health, and safety (EHS) matters. Specific companies that have designated an environmental committee of the board include: Amoco, ARCO, Dow Chemical, DuPont, Occidental, Union Carbide, and Hoechst Celanese Corporation (Cahill and Engelman, 1993). In addition, dialogue with environmental groups has become more prevalent. More than 50 company executives have joined the boards of national environmental organizations. For example, several directors of Union Carbide are on the boards of the World Wildlife Fund, World Resources Institute, and the National Resources Defense Council (Cahill and Engelman, 1993). CERES is not directly responsible for the appointment of environmental representatives to the boards of corporations or for the interactive roles corporate executives have played by joining the boards of national environmental organizations. However, CERES was a motivating force in exerting pressure and defining social expectations for a strong upper management commitment to environmental initiatives and for increased environmental-corporate collaboration. To some extent, when CERES defined the commitment of management as a requisite for environmental responsibility, and companies appointed environmental representatives to their board, a norm of environmentally responsible behavior emerged. Reporting Trends In addition to providing momentum for the formulation of voluntary reporting programs and upper-management commitment, voluntary environmental codes have advanced the trends in corporate reporting. Fund managers have reported that more companies are providing EHS data with their annual reports. Although not all companies are adopting voluntary codes, the impact has been to make companies take another look at their practices and improve upon them (Gelfand, 1995). PricewaterhouseCoopers notes the impact of increasing social expectations on reporting trends: “Whether public environmental reporting becomes a requirement for Corporate America is an open question. ISO is likely to consider including public reporting of performance measures. The CERES Principles support reporting of environmental performance, and participation in EMAS


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in Europe also results in a level of public disclosure . . . companies have initiated environmental reporting to proactively satisfy information demands and receive due credit for their significant investments in environmental stewardship” (PricewaterhouseCoopers, 1995, p. 35). Formal Environmental Policies Most of the voluntary codes call for the creation of formal environmental policies. Seventy-three percent of companies with significant environmental liabilities have a formal statement of environmental principles, an overall environmental policy, or an environmental mission statement. In addition, nearly 60 percent of those participants that do not have significant environmental liabilities report having formal statements or policies. PricewaterhouseCoopers believes “this is strong evidence of the seriousness with which corporations are approaching their environmental responsibilities, and presumably their recognition of the potentially adverse social and economic consequences of failing to do so” (PricewaterhouseCoopers, 1994, p. 29). Voluntary Reporting Twenty-five percent of the surveyed companies, or 100 American companies, indicated that they are issuing public reports, although the definition of “public report” was not supplied (PricewaterhouseCoopers, 1994). A 1993 study of European and North American firms indicated that 30 major corporations12 released voluntary environmental progress reports. The study further indicated that each report attempted to address low as well as high points, and provided a discussion of the whole company rather than selected units. The progress reports contain the following: descriptions of specific, successful environmental projects, a mention of the corporate audit program (although the specific facilities evaluated are not yet disclosed), and tables or graphs showing quantitative environmental data that provide company stakeholders with a snapshot of the company’s environmental progress. The most recent environmental reports are often designed for several purposes, including eliciting employee support for company environmental plans, reassuring host communities that local facilities are not hazardous, impressing shareholders that the company will not be hurt by environmental risks, and convincing environmentalists that companies are making environmental progress [Naimon, 1994].



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Auditing An environmental audit highlights a company’s environmental problems, and determines how these impact the business and what actions must be taken: “Many businesses have found that the environmental audit has contributed to major savings through waste reduction, increased energy efficiency and improvements in the use of plant, machinery and vehicles. [An audit] ensures that the company is in full possession of all the facts on potential risks . . . [and is able to] comply with numerous environmental laws. Environmental auditing should be a continuous proactive process. No company should wait until it is involved in some form of wrong-doing” (Wicks, 1992, p. 105). “According to a PricewaterhouseCoopers’ survey, 60 percent of respondents perform quarterly environmental reviews, up from 52 percent in 1992. Perhaps more interesting is the fact that the percentage of reviews completed in response to significant developments alone (e.g., something was wrong) have decreased by more than half since 1992. This indicates that companies are beginning to realize the benefits of proactive environmental auditing” (PricewaterhouseCoopers, 1994). More indicative of the growing recognition of an audit’s importance was that 73 percent of companies had auditing programs in 1994, a significant increase from the 40 percent in 1992. More than 95 percent report that management awareness has improved as a result of these audit programs (PricewaterhouseCoopers, 1994). Almost two thirds of those companies now performing environmental audits indicated that they would expand their programs if penalties were eliminated for violations that they themselves identify, report, and correct (PricewaterhouseCoopers, 1994). The issue is not one of convincing companies they need audits, but of convincing them that they should disclose the information the audits provide. The new EPA environmental auditing guidelines might eliminate companies’ hesitancy to disclose violations identified through the audits. Many forces determine the level of resources that a company will devote to reporting and the extent of its disclosure. Recently, companies have committed to a greater level of formal environmental policies, reporting, and auditing. Voluntary environmental codes actively promote these components of environmental responsibility and are part of the external pressure that companies must face as they try to conform to increasing external pressures and changing environmental norms. Several voluntary environmental codes advocate these activities and press the limits to determine the extent and type of information a company should disclose, as well as the behavior that constitutes environmentally legitimate corporate behavior.


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Policy Implications The extent to which these companies can influence future policy through their interactions with voluntary codes is not clear at this point. The CERES Principles have been introduced as state legislation in New Jersey. The United Nations used the Valdez Principles in the design of its sustainable development guidelines for multinational corporations (Doyle, 1990). Pressure from socially responsible investors resulted in state and local government placing social screens around their investments and government contracts. At least 10 states have passed legislation on voluntary audits, and the EPA recently changed its guidelines regarding auditing to promote more disclosure (Hanson, 1995). Companies are also aware that because auditing and disclosure are becoming more common legislative issues, as well as the norm for environmental responsibility, involvement with voluntary codes offers some companies a means to explore—and possibly shape—policy in an open dialogue.

Conclusions As public expectations of corporations have risen, definitions of social responsibility have evolved also. In the past, attempts to influence corporate activity to match the concepts of social responsibility generally have included command-and-control regulation and market-forced regulation. However, environmental regulations have recently come under scrutiny for being economically inefficient and stifling to innovation. Nonregulatory codes of environmental management have thus emerged as an alternative mechanism for influencing corporate behavior. Codes such as the CERES Principles, GEMI, Responsible Care, and the Business Charter for Sustainable Development utilize self-regulation and internal corporate pressure to manage environmental impacts. Such programs have emerged throughout Europe and in the United States. In the United States, voluntary mechanisms to influence corporate behavior have manifested themselves in EPA voluntary auditing programs and industry- and business-sponsored environmental principles. Controlling corporate behavior from outside the firm via voluntary environmental codes of management is a significant divergence from traditional regulatory attempts. Voluntary codes are nonregulatory and rely on market and social pressures to create de facto regulation of corporate activity, while also promoting accountability through the disclosure of information. Research shows that corporations that endorse certain voluntary codes gain some environmental legitimacy and credibility from stakeholders because they respond to changing social norms. Environmental groups view more favorably those companies that attempt to continuously improve their management and production techniques while disclosing more information. At the same time, they are



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skeptical that the high impact industries participating in voluntary codes can alter their practices enough to conform to rising expectations for corporate environmental performance. Research indicates that voluntary environmental codes are helping to define the practical components for corporate accountability through reporting and disclosure requirements. These codes have helped to shape expectations regarding high-level management commitment, components of public reports, and elements of an audit. Although many companies have yet to adopt the voluntary codes, a number of these have adopted many of the environmental actions that the codes advocate. Thus, the level of legitimacy a firm gains by adopting the voluntary codes may be less visible than the influence these codes have had in impacting society’s expectations for corporate environmental responsibility.

Notes 1. As Bruce Babbitt stated in The Future Environmental Agenda for the United States, “The victories we have won in such areas as air and water pollution and natural area protection will, in hindsight, seem relatively easy. The next generation of environmental challenges will be more intractable, more difficult problems that fundamentally relate to how we live on the land and on the planet . . . [I]n the next generation, we will have . . . [to look] at how we run an industrial society, and at how to make the kinds of changes in the structure of this society, in the organization of our economy and our culture, and in our personal habits, to avoid the possibility of environmental catastrophe” (Orts, 1995). 2. The word voluntary indicates that the criteria are not legislated but are adopted by corporations. 3. Voluntary standards can provide a competitive edge for companies facing pressure from stakeholders’ companies for quality products and services within the context of excellence in environmental management. 4. Since its issuance in 1987, ISO 9000 has gained rapid acceptance and is a de facto requirement for doing business. Over 40,000 companies have been certified worldwide, although ISO 9000 certification is not as widespread (about 10 percent) in the United States (Orts, 1995). 5. ISO 9000 certification requires documentation that the product meets certain quality standards, extends assurance to all inputs in a product, and requires suppliers of the products to meet the standards as well. The power of the standards derives not from the specific practices they require, but from the management structure that a firm must set in place and document. The process by which a product is deemed ISO 9000 qualified includes annual accreditation by a third-party, certified auditor. 6. U.S. businesses are currently seeking to comply with ISO 9000 because of real or perceived market forces: customers in Europe demand ISO 9000 registration in contracts; ISO 9000 registered suppliers receive preferential treatment; if a company is not accredited, its competitors have the advantage of product differentiation by being registered; and European divisions already have registration and are putting pressure on U.S. branches or subsidiary companies for internal consistency.


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7. It is likely that market and social forces will make EMAS mandatory. Representatives of European banks and insurance companies might soon require businesses that need loan or insurance extensions to participate in the EMAS because loans and insurance policies often involve environmental risks. In addition, the European Parliament might make EMAS participation an eligibility requirement for any company seeking government contracts or involvement in any community program (Orts, 1995). 8. Of the 600 large companies EPA solicited for participation (which were identified by amounts of emissions reported) fewer than 300 volunteered, and an even smaller number of companies affirmed their commitments with quantified data. The EPA then invited several thousand more corporations to participate. However, fewer than 500 more companies signed on, with only half of these supplying quantified data. As of March 1994, EPA had invited more than 8000 companies; 1200 have agreed to participate. 9. The belief that companies are hiding information is not that far-fetched considering the information typically provided to stakeholders. A 1992 survey found that 80 percent of corporate respondents conduct environmental auditing; yet only six percent release summaries to shareholders, and then only on special request. 10. If most of the seven conditions that firms must fulfill under the EPA’s new environmental auditing and self-disclosure program are met, fines might be reduced by up to 75 percent. EPA can still demand payment of a fine assessed on the economic benefit derived from noncompliance. The seven conditions that must be met are 1. The violation must be discovered to have been voluntary. 2. Disclosure of the violation must be immediate and voluntar., 3. The violation must be corrected within 60 days, unless it can be demonstrated that more time is needed to complete the correction. 4. Any violation creating an imminent danger must be remedied immediately. 5. The firm must implement measures to prevent recurrence of the violation and to correct any environmental harm that it has created. 6. The violation must not be the result of a firm’s failure to correct a violation it knew about and took no measures to prevent. 7. The firm must cooperate fully with EPA and provide all requested documents and access to employees for any future investigation (C&EN, 1995, p. 6). 11. Many environmentalists believe that businesses are key groups to target in an effort to improve environmental practices. Mainstream environmental groups believe that they must work with companies, and include them in dialogue if real improvements are to occur. Some radical advocacy environmental groups disagree entirely with corporate-environmental interaction and prefer to see companies remain outside discussions. They prefer that companies be regulated, and object to the collaborative and nonregulatory process required by voluntary codes of management, including CERES. 12. Companies issuing reports range from large multinational corporations such as AT&T, British Petroleum, DuPont, ICI, and Monsanto, to medium-sized companies such as Noranda Minerals in Canada, Dutch BSO/Origins, Swissair, and The Body Shop in the United Kingdom. In addition, many corporations such as Amoco, Northern Telecom, and Procter & Gamble are in the process of publishing consolidated environmental progress reports (Naimon, 1994).

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Y CHAPTER FIVE

SCIENCE AND SCIENTISTS IN INTERNATIONAL ENVIRONMENTAL NEGOTIATIONS Laurent Renevier and Mark Henderson

cience and scientists are at the core of environmental negotiations. While the history of international negotiation has been driven by the politically determined interests of nation-states, efforts to protect the global environment confront more complex and uncertain cause-and-effect relationships. In environmental negotiations, the participants’ interests and options are not easily defined without the assistance of specialists who can interpret these causal chains. Because of their dependence on scientific developments, negotiations may never be completely settled. As old patterns of thought prove untenable in light of new scientific data and refined analyses, negotiators and their governments must demonstrate the capacity to learn: to internalize new ways of thinking about environmental problems (Mann, 1991). This chapter highlights some problems with the current interaction between science and politics in environmental negotiations, and suggests changes to the negotiating system. Our proposals challenge many of the assumptions about the proper role of science in politics, and of politics in science. It is our hope that by engaging in the debate about these roles the international environmental community will help bring about faster, more equitable agreements, promote positive learning on the part of world leaders, and in turn prove more successful in protecting the global environment.

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The Problem Two major problems hinder the progress of environmental learning in multilateral negotiations. One problem is the maldistribution of scientific capabilities. Experts from a handful of countries dominate environmental sciences. Less developed countries (LDCs) especially lack the capability to make independent analyses of environmental problems and proposed solutions. Governmental environmental policymaking may be poorly informed and overwhelmingly influenced by immediate political interests, or too accepting of scientific prescriptions without independent evaluation. Since scientific capabilities are essential to implementation as well as negotiation of environmental policies, states that lack these capabilities may be unable to meet their obligations. The second problem is that science is widely misperceived to be immune to politics. The scientist’s role in policymaking is often based on an assumption that science can serve as an objective and impartial arbiter of social conflict (Proctor, 1991, p. 8). In fact, science—much like politics—reflects the biases of its practitioners’ institutional, disciplinary, and personal interests. When the bias remains hidden, it creates unrealistic expectations of neutrality on the part of scientists and can lead political leaders to abdicate their responsibilities as guardians of the public interest. When such bias is perceived, it generates distrust among policymakers and damages the credibility of science as a whole. As the Salzburg Initiative (IENN, 1992, p. 6) puts it, the challenge is to promote a better balance between science and politics. Such a balance would promote structures for scientific analysis in state policymaking processes and in international regimes that incorporate mechanisms for learning as new data and analytical models warrant. In particular, it would build the capabilities of LDCs to evaluate the scientific analyses that propel environmental negotiation. It would reinforce the integrity of science first, by making explicit its sources of bias and second, by fostering true objectivity through opening channels for reassessment and verification. This chapter will first describe the special characteristics of science and scientists in international environmental negotiations. Recognizing that multilateral negotiations are a two-level game, we then examine the interaction of science with policy formulation and negotiation at the international and domestic levels. Finally, we present our own proposals for improving the current state of affairs, starting with incremental, conceptual, and structural changes, and concluding with a description of a new regime for environmental science within the bounds of international environmental politics.

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Science and Politics Science and politics are uneasy partners in the effort to protect the global environment. The mechanisms that govern international politics today evolved from the historical circumstances of the European nation-states, which developed the customs of treaty negotiations to meet the problems of war and peace within their own peculiar political context. The conventions of modern science also developed in Europe but with different influences. While the treaty system developed to resolve conflicts among political actors, early modern scientific practitioners sought to avoid conflict with the political and religious authorities, especially over the moral issues that arose from their work. They promoted the idea that science should remain amoral and objective in order to gain autonomy from church and state (Proctor, 1991, p. 7). This cloak of objectivity earned science and scientists a unique place in Western society, supplanting the magic and great tribal wizards of premodern societies as “holders of the truth.” As Barry Barnes and David Edge (1990, p. 50) write, “in modern societies, science is near to being the source of cognitive authority: anyone who would be widely believed and trusted as an interpreter of nature needs a license from the scientific community.” However, this view obscures the heterogeneity of science as practiced today, instead depicting scientists as constituting a monolithic bloc whose interests and methods do not differ the world over. Communities of scientists who share specific operational models for organizing information do exist, but as Peter Haas (1990) points out, the conditions for forming such “epistemic communities” are exceptional. Political leaders, then, have come to rely on the objective advice of scientific experts when the problems they face are complex or characterized by uncertainty. Nowhere is this more clear than in issues of environmental protection. Scientists have to be trusted because many environmental threats are beyond the immediate experience of the public. Whether or not stratospheric ozone depletion increases the risk of contracting cancer is an issue that can only be determined by scientists, not by the public or by politicians. Because of the growing complexity of the relationship between humankind and its environment, scientists have to investigate well beyond belching smokestacks to find the roots of most environmental issues. Increasingly, scientists have to engage in expensive, time-consuming research and elaborate modeling to predict the effects of environmental degradation. Scientists in Environmental Negotiations Scientists intervene at four points in the process of environmental negotiation. First, they may identify problems, either through empirical data or through predictive

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conjecture. Second, scientists may focus attention of the public and political leaders on environmental issues and convey specific understandings of a problem, influencing societal learning about environmental issues. In doing so, they influence policy formulation in their own countries and may contribute to international consensus on the matter. A third point of intervention is the political actors’ use of scientific advice to provide specific policy options once a problem has been placed on the agenda, including analyses of potential costs and benefits of different policy options. Fourth, scientists monitor progress made in combating the problems, providing and analyzing new data to evaluate the measures taken. Additional data may suggest new and different ways of thinking about the problems and return to the second point of intervention—a cycle of learning (see Figure 5.1). Despite the tremendous scientific resources that are expended upon research of potential environmental threats, scientists have come to recognize that the phenomena which they study are so complex and so abstruse that they either cannot be comprehended or that they at least necessitate further research. Haas, Williams, and Babai (1977, p. 227) note that “knowledge is not the sole key to political agreement, and the sharing of knowledge among disciplines has not produced an evenly overarching consensus on ecological wholeness even among scientists.” Nevertheless, they conclude that “science has heavily influenced the means considered appropriate for action.” FIGURE 5.1. POINTS OF INTERVENTION BY SCIENTISTS INTO THE INTERNATIONAL ENVIRONMENTAL NEGOTIATION PROCESS • Identify Problems

• Focus Attention & Ways of Thinking about Problems Influence Domestic Policy Formulation Resolve International Uncertainty • Predict Possible Outcomes Provide Decision-Makers with Policy Options, Costs and Benefits • Monitor Progress New Data to Evaluate Measures Taken New Analyses to Suggest Different Ways of Thinking about Problems

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The temptation is often great to fill the gaps in science with politically expedient policies, blurring the line between politics and science. Some astute negotiators will typically strive to turn or interpret available scientific data in a way that is congruent with their interests.1 On the other side of the issue, concepts at the very core of the reasoning put forth by some environmentalists do not all have scientific blessing. For example, the concept of sustainable yield is far from being a generally accepted tenet. Scientists in various disciplines are still grappling with the notion that there might exist some sustainable level of exploitation of natural resources even though these same notions have taken center stage in most natural resources regimes over the last few years. While many environmentalists tend to take the concept as an accepted given, scientists are nowhere close to an agreement on what constitutes a sustainable yield (Stevens, 1993). Some conservative analysts point to the lack of consensus among scientists as evidence to refute the need for the adoption of response strategies to environmental degradation.2 Scientists themselves have voiced concern that the current efforts to curb some emissions are unsupported by scientific evidence. In the case of global climate change, for instance, a group of scientists signed a statement in which they admitted feeling “disturbed that activists, anxious to stop energy and economic growth, are pushing ahead with drastic policies without taking notice of recent changes in the underlying science” (The New American, June 1, 1992, p. 9). The weakness of scientific knowledge in the face of complex ecological problems has led others to advocate a new humility of humankind towards its environment (Stairs and Taylor, 1992, p. 124). This school of thought is not a renunciation of science but rather a recognition that even the most elaborate means are insufficient in understanding the phenomena at hand. This view also questions the applicability of most scientific research to the natural world. The criticism is chiefly aimed at laboratory science and at the shortcomings of even the most refined computer models.3 More disquieting is the suggestion that even if scientists were in a position to determine accurately some optimal (that is, sustainable) level of economic exploitation, scientific advice would certainly go unheeded because short-term economic aggrandizement would take precedence. Recent progress in sciencedriven environmental negotiation does not yet make this cynical view unwarranted. However, defending the long-term interests of society remains the responsibility of world leaders, not of scientists alone. Science and Levels of Development Our discussion so far has concentrated on the capital-intensive, technology-driven hard science that has developed in the West. The conceptualization of

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environmental science and research, however, varies with culture and level of development of a particular society. One could make a convincing argument that softer approaches to environmental problems are more appropriate to the understanding of some development-related issues. This logic recognizes, for instance, that the folklore accumulated by indigenous tribes about their surroundings may tell more about the natural world than the most sophisticated supercomputer models. Western scientists have been slow to incorporate such soft science. Softer approaches may not be easily codified into convenient equations or expressed in a consistent or value-free format that can be compared and analyzed the world over. This schism between modern and traditional science also contributes to the broader misunderstandings that exist between developed and developing countries on the role of science as the major engine of social progress. Therefore, in addition to the quantitative disparities in scientific capacities between the industrialized nations and the developing world, there may exist a qualitative gap. Bridging this gap would not only require bringing additional Western-trained scientists into the ranks of the developing countries’ scientific contingent, but also introducing the indigenous expertise and traditional ways of knowing into the practices of Western science. The nascent global regime on the sustainable use of biological resources is a useful illustration. Unlike other international regimes dealing with the preservation of the global environment, the Convention on Biodiversity acknowledges the importance of traditional repositories of knowledge such as indigenous people, although it fails to make it a full-fledged provision of the treaty. The Preamble to the Convention includes a statement which reads “recognizing the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitably benefits arising from [their] use . . .” Corporations and research institutes in developed countries are also increasingly resorting to indigenous knowledge as a basis for species prospection and conservation efforts.4 The most obvious consequence of the enormous disparities in scientific capacities that exist among various countries is that it generates distrust on the part of those who do not participate in—or feel they had been excluded from— the elaboration of the scientific basis for environmental policy. This is especially so at the outset of the research process. Unless other countries have had the opportunity by some means to participate in the research and feel confident that they have been able to corroborate the scientific process, the outcome is likely to foster suspicion. Thus, not only is it important to obtain cogent scientific data, it is also highly relevant at the international level to determine a mutually agreed mechanism

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for the collection of data. Otherwise, pertinent information is likely to be of limited use because of the skepticism that might plague the discussion. One might argue that this amounts to procedure taking precedence over substance. However, from a pragmatic point of view, misgivings about the veracity of the figures, conclusions, and methods can sometimes shift the focus so far from the substance that it becomes practically irrelevant. Conversely, less-than-perfect science can be the basis for an agreement precisely because of the same need to take political considerations into account. For example, in the case of the protection of the North and Baltic Seas, the relative similarity in the scientific capacities of the riparian nations did not prompt negotiators to distrust scientific reports (Haas, 1993, p. 149). However, the science underlying the Mediterranean Action Plan (Med Plan) and its protocols was far more contentious. According to the testimony of some participating scientists, the quality of the program was suboptimal in its achievement because the United Nations Environmental Programme (UNEP) insisted on the participation of scientists and laboratories from the region’s less developed countries. For economic and scientific efficiency the bulk of the work could have been contracted out to the most advanced facilities in the region (that is, in France). This option, however, would have been politically unacceptable for many countries whose people would have seen this as giving France a de facto monopoly in the knowledge underlying the environmental problems of the Mediterranean (Haas, 1990, p. 80).

Science and International Politics Global science is far from homogenous. Scientists have divergent interests and work to fulfill distinct agendas and achievements. Scientists strive to reflect more closely the patterns of nature in their models, but the variables they select to incorporate in models are, in part, a function of their national, institutional, disciplinary, and class affiliations. Scientific research is also, consciously or unconsciously, altered by personal convictions and experiences. Peter Haas (1990, p. 52) highlights the importance of personal beliefs in scientific, and particularly, environmental research. He points out that “reality is not directly accessible, and our interpretation of events is processed through filters, including those of prior experience and expectations. Thus, responses to environmental change may have little to do with objective factors.”5 The body of scientists is generally divided between those who engage in fundamental research and those who engage in applied science. Among the latter, some are focusing their work on the development of environmental technologies. At the other end of the spectrum, pure environmental scientists study

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the fundamental mechanisms of natural cycles. They can further be divided between those who discover and analyze environmental problems and those who come up with models designed to predict outcomes of given courses of action. Differences in Scientific Capacity Scientific capacities are unevenly distributed throughout the world. The bulk of the science that supports environmental issues originates in the industrialized countries of the North. In some instances, research has typically been dominated by a handful of countries. For example, during the negotiations that led up to the Vienna Convention for the Protection of the Ozone Layer and the follow-up protocols, the United States was far ahead of all others in its leadership in stratospheric sciences. In part because of their colossal budgetary endowments, various U.S. scientific research programs were able to benefit from the most advanced facilities and to attract the most qualified experts in the world. Not surprisingly, the literature produced by American institutes and universities tended to eclipse all the research that was taking place elsewhere in the world. The U.S. National Aeronautics and Space Administration (NASA) even managed to entice some eminent scientists from Europe to conduct research in its laboratories. European stratospheric science, in contrast, suffered from underfunding and lack of interest (Benedick, 1991, pp. 29–30). Some southern countries have built endogenous scientific capacities of their own. However, their performance typically does not measure up to those of similar institutions in the North. For one thing, funding is not as forthcoming as in the industrialized nations. Furthermore, environmental issues are not the field of research that generate the most interest, in the face of development priorities that are (rightly or wrongly) perceived as being more pressing. Some analysts argue that even when their scientists are present, their interests may not be represented because the majority of these experts have been trained in the North. Such analyses view the concentration of scientific expertise as another means through which the North can shape the international agenda at the expense of the countries of the South.6 Although formally taking part in the negotiations of many international environmental regimes, developing countries often have a hard time keeping up with the science that is used as the basis for action. The International Whaling Commission, for instance, is open for membership to any state. Yet, for lack of scientific wherewithal, the smaller, resource-poor nations have to either acquiesce with the scientific arguments emanating from the more advanced participants or reject the Commission’s proposals outright (Peterson, 1992, p. 156). In either case, the position of the developing world is more likely to hinge on immediate political considerations than on rationally formulated science. The

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paucity of scientific evidence originating in the developing countries can thus compel these countries to resort to arguments that are comparatively more politically laden than those brought forward by the industrialized nations. Some international regimes provide for administrative mechanisms that seek to remedy the imbalance between scientific capacities by simply assigning in-house experts to supplement the negotiating teams of the poorer nations. Ultimately, this scheme is bound to succumb to the same forces as these nations become wary of the motives and the influence of foreign scientists, foreign institutions, and even national scientists who have been trained in industrialized countries.

Scientific Data as a Political Artifact The acceptability of scientific data, whatever the sophistication of the measurement equipment with which it has been collected, is by and large dependent on political factors. The concern that data has to be trusted (both politically and for scientific accuracy) in order to be an effective input into the negotiating process is a recurring theme. One should only recall the Concorde aircraft controversy to grasp the significance of suspicion in the international environmental debate. The Concorde polemic was sparked in the early 1970s by the publication of the findings of a team of American scientists on the potential pernicious effect of CFCs on the stratospheric ozone layer. In the eyes of the British and the French, American concerns for the ozone layer constituted a plot to undermine their joint supersonic jet program (Benedick, 1991, p. 32).7 Distrust is more likely to emerge when science and negotiations ensuing from scientific evidence threaten to undermine a policy or a technology deemed as vital for a state’s national interest. Nuclear technologies are a case in point. During the negotiations of the Paris Commission on the reduction of pollution affecting the North Sea, France systematically rejected proposals to limit emissions of radioactive waste from reprocessing plants or discharges from regular nuclear plants (Saetevik, 1988, p. 76). During the negotiation of the Med Plan, and its follow-up protocols, the French scientific delegates were unwilling to disclose data on emissions of radioactive substances for fear that France would be isolated as the sole source of those substances. However, France did not prevent radionuclides from being eventually covered by the Med Plan (Haas, 1990, p. 180). Nuclear energy remains a source of conflict over environment-related science and national interest as some countries, particularly in Asia, hurry to develop nuclear power to fuel their industrialization while much of the developed world is edging away from nuclear power on environmental and safety grounds.

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Distrust is even more acute in negotiations between countries that have different levels of economic and technological achievements. The Med Plan negotiations provide yet another example. On one side were the developed nations of the north shore with their detailed heavy-metals pollution reduction agendas. On the southern shore of the Mediterranean, developing states had different objectives and different approaches, mainly linked to the lack of adequate amenities (such as sewerage systems) and to economic development in general. Therefore, depending on what state they represented, scientists tended to emphasize certain aspects of the pollution problem while ignoring the other dimensions. As Susskind and Ozawa (1992, p. 160) point out, international data—when properly collected and exposed (that is, under collectively agreed terms)—is more credible than research which has been generated nationally. Vested Interests: Political and Scientific Transboundary environmental issues require an especially holistic approach—that is, ecosystem-wide, multidisciplinary, and multimedia. For example, some scientists who took part in the development of the Med Plan sought—not always successfully—to tackle the issue from a more holistic, ecosystem-wide perspective. However, this is not what many national governments desired. Topping the political agenda of most national governments in the region, was the narrow problem of local pollution (Haas, 1990, p. 68). Clearly, the national interests were at variance with what good science dictated. Yet, national interests were not the only hurdles to the holistic approach; scientific interests had the same effect. All too frequently, scientists study a particular problem only from within the narrow confines of their own disciplines. For example, chemists contributing to research on stratospheric ozone depletion predictably focused on atmospheric reactions, which is their own area of expertise. Physicists, on the other hand, were more interested in the dynamics of the stratosphere (Haas, 1990, p. 192). Similarly, different disciplinary backgrounds led to various interests and approaches during the Med Plan negotiation. Marine biologists emphasized the effect of pollutants on fisheries yield while marine chemists focused on traces of heavy metals. In spite of their acknowledgment that the study of the Mediterranean’s ailments required a holistic approach, scientists were concerned with the recognition of their discipline as central to the research program. Indeed, scientists have an immediate interest in the development of their field of research, as it is not advantageous that their field of expertise be declared an area in which little research is needed. Therefore, scientists tend to push for additional studies even when further research may be of little value.

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At this point it becomes necessary to discuss the efficiency dimension of science. It is not at all certain that the allocation of funds for scientific studies should be entrusted to scientists themselves, since they have a vested interest in the continuation of funding for their respective disciplines. The end result might be to allocate funds to the most influential experts rather than to the areas where they would yield the highest marginal returns. Stairs and Taylor (1992) make a cogent argument that scientists may have been the most formidable, insidious obstacles to the enactment of strong prohibitions of marine dumping. According to their analysis: “the strongest defenders in the pro-dumping lobby have been not government regulators or industrialists intent on cheap options, but marine scientists with a lifelong record of involvement in dumping programs. These scientists have used the aura of scientific complexity and objective decision-making to further their own interests” (p. 122–3). Scientists also have an interest in preserving the credibility of their particular fields and research programs. Typically they will be wary of releasing findings that mark a radical departure from established theories. Before they do so, results will be counter-checked and peer-reviewed several times for possible errors. This was the case when the British Antarctic Survey was monitoring what they thought was a thinning of the ozone layer in the mid 1980s; the loss in stratospheric ozone which the British team recorded seemed excessively high (Haas, Keohane and Levy, 1993, p. 31). Only after findings had been checked against measurements from another source were the results officially released. Data from orbiting NASA satellites were subjected to the same suspicious treatment as they corroborated the most alarming theories on the depletion of the earth’s ozone layer. Likewise, scientists are often perturbed about the manner in which their work is related in the popular press. They are all the more wary of releasing their tentative findings since they are concerned that these might be misinterpreted or distorted. This caution is not only dictated by an urge for scientific accuracy on the part of researchers but also by a fear that their jobs and funding might be threatened by impolitic announcements (Bormann and Kelbert, 1986, p. 146). The science behind international environmental issues is distorted first, through the lens of diplomatic power bargaining, and second through the scientists’ own agenda, interests, and training. Self-interested conservatism in releasing data by individual scientists limits participation in science and may hold back international progress on environmental protection. But there may be inherent advantages to the participation of competing social biases in science. Contending political perspectives may inspire better, more complete science at the international level.

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Science and Domestic Politics Just as international negotiators draw on scientific expertise to help define the structure and terms of environmental treaties, scientists are called upon to assist their national governments in formulating national negotiating positions. In neither, though, can scientists be seen as passively dispensing knowledge upon request to national leaders. The biases described in the preceding section are equally prevalent in domestic policy processes. National scientists affect domestic policy formulation through their interactions with international science in four ways. First, international recognition of individual scientists may often reinforce their domestic prestige and, therefore, the respect accorded to their advice by policymakers. Participation in international conferences or receipt of notable research grants serves to draw governmental attention to their work. Particularly in the case of the developing countries, individual scientists’ successes may be seen as symbolic of the nation’s progress in scientific and technological development. When scientists are consulted on policy matters, prestige bolsters the authoritative nature of their advice and makes it more difficult for the government to reject their expert prescriptions. Second, groups of scientists within the policymaking apparatus may form a constituency for perpetuating or expanding policy initiatives related to their area of expertise ( Johnston, 1987). The existence of a domestic community of scientific experts on a given issue may reinforce the internal importance afforded to said issue. Decision makers’ limited attention can thus be drawn to one issue while others are pushed aside. A third point concerns the development of shared ways of knowing across national borders: domestic scientists may become part of an international epistemic community of professionals who share a body of knowledge and a common interpretive framework. Thus, scientists from different nations who share membership in such a community will direct their governments towards the formulation of convergent policy positions. As Peter Haas (1990) documents in his study of the Mediterranean Plan negotiations, such an epistemic community “is a professional group that believes in the same cause-and-effect relationships, truth tests to assess them, and shares common values. . . . Presented with incomplete or ambiguous evidence, members of an epistemic community would draw similar interpretations and make similar policy conclusions” (p. 55). A final point is that nations that have developed domestic scientific and technical expertise will be better positioned to implement technical measures specified in international agreements. Thus, the scientist’s role continues beyond policy advice and the formulation of national negotiating positions to the responsibility for

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implementing decisions. This is another issue of particular relevance to the developing countries: nations that lack domestic expertise may be reluctant to rely on foreign sources for technical information during negotiations and even more concerned about dependence on foreign technology and expertise in implementation.

Developing Science in China China, as a leading exponent of Southern concerns and a potentially crucial player in any global environmental solutions, is an important example of a developing country facing the challenges of participation in international environmental negotiations. In the last century, late imperial China struggled to incorporate elements of Western science without compromising its own scientific and cultural traditions. Paralleling the experience of other developing countries that achieved political independence in this century, China first found it difficult to achieve independence in the economic or technical spheres, in part due to the dearth of domestic expertise. But as it developed indigenous expertise and promoted scientific exchange over the past fifteen years, China has moved to become an active player in environmental science and multilateral negotiations. After the People’s Republic of China was established in 1949, development plans relied heavily on citizens who had studied abroad, particularly in France, Japan, and the United States. China also sought direct foreign assistance to launch its reconstruction program and turned to the Soviet Union, which responded by sending scientists and technicians while inviting Chinese workers and students to its scientific and engineering institutes. Like other Third World recipients of superpower aid in the post-World War II era, China found that its dependence on foreign assistance limited its newfound independence. The influx of foreign aid pressured the Chinese Communists to invest increasingly in Soviet-style heavy industry at the expense of their agricultural sector, previously the source of their greatest successes.8 The Chinese Communists eventually repudiated the Soviet model and with it the role of elite scientific experts in policymaking. With a few exceptions, science in China stagnated as the Communist leadership sought an alternative approach to development in the 1960s and 1970s. A generation later, the Chinese leadership’s perspective on the role of science and scientists in policymaking again is characterized by a heavy reliance on scientific expertise in policy formulation, but tempered by a lingering mistrust of foreign influence or control. This perspective is shared by leaders of other developing countries wrestling with the challenges of global environmental protection in which progress has often been driven by scientific developments, usually by scientists from developed countries. Representatives of developing countries

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(the South) such as China have complained that current environmental forecasts and prescriptions are “neocolonial” in nature, that is forecasts of environmental problems are based on science from developed nations while proposals to bring these problems under control are often seen as requiring economic sacrifice by the developing world. At stake is the ability of Southern nations to negotiate and implement environmental accords. Under these conditions, how has China, as a representative of the South, moved to enter the arena of international environmental negotiation? The Chinese government has in fact made notable progress in its environmental efforts since the 1972 United Nations Conference on the Human Environment (UNCHE), becoming an active participant in the scientific and diplomatic aspects of global environmental protection. The evolution of Chinese environmental foreign policy suggests that interactions with international science have indeed affected the domestic importance of environmental issues, the reliance of policymakers on scientific experts, the shape of policies that emerged, and the level of success in implementation (Henderson, 1994). China’s environmental initiatives, both domestic and foreign, can generally be traced to the country’s participation at the 1972 conference. UNCHE drew the attention of Chinese leaders to the importance of environmental issues.9 UNEP showered its special attention on existing environmental projects within China and sponsored high-level visits to Beijing, even presenting Li Peng (chair of the toplevel environmental commission and later China’s premier) with an environmental gold medal. The official Chinese press covered U.N.-sponsored inspection tours of these projects in detail, implying that top leaders responded favorably to this source of international prestige. Domestic developments promoted the development of a community of scientists and policymakers with a shared concern for environmental issues. As Chinese scientists interacted with their colleagues abroad, they were exposed to the network of international environmental scientists. Exchanges of technical staff with the United States, Japan, and Western Europe blossomed after 1978. By the beginning of the 1990s, China had developed the scientific capacity to corroborate and expand upon Western environmental science (through, for example, its own ozone layer monitoring facilities) and, in illustration of South-South cooperation, was making plans to launch climate change monitoring satellites with Brazil. The rapid development of Chinese science to world levels served both to boost the credibility of China’s statements on global environmental issues and to foster optimism about the prospects for improving China’s own environmental situation. The record of international negotiations suggests that, at least during the 1980s, the development of Chinese science did help push the government

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towards convergent policies on global environmental issues. After decades of indifference towards international law, China signed onto practically every existing environmental treaty in the first half of the 1980s; it also became one of the developing world’s most active participants in negotiations on ozone and climate change. While the Chinese government as a whole has resisted restrictions on economic development in these talks, China’s environmental specialists have been a strong voice within the government for more progressive action. One scientist representing China at the Montreal Protocol talks publicly promised to “do his personal best” to secure approval from Beijing (Benedick, 1991, p. 75). Perhaps more importantly, China’s environmental bureaucracy has continued to develop and implement environmental protection measures even before the foreign ministry has acceded to specific treaties. China provides one example of a developing country that has gained the capacity to assess and corroborate environmental science on its own terms, enabling its political officials to effectively represent their national interests in international negotiations, and pushing forward with technical measures to promote environmental protection. By examining the conditions that made this possible, what suggestions can we make that will promote the development of this capacity in other countries? The following section details some conceptual and procedural changes to facilitate a better balance of science and politics in negotiations that involve both North and South.

Toward a Better Balance Between Science and Politics The call for “a better balance between science and politics” is made in the Salzburg Initiative (IENN, 1992, p. 6), a package of ten strategies for “improving the effectiveness of international environmental negotiation.”10 The sixth recommendation of the initiative reads: “The integrity of scientific and technical analysis is undermined when it is used to justify politically expedient views.” Although the interpretation of data always reflects political biases (and the priorities of elected officials who bear the final responsibility for reconciling contradictory claims), forecasts and models must be credible. Contingent agreements are the key to dealing with technical uncertainty surrounding many environmental issues. Such agreements can be based on alternative courses of actions and then continuously monitored. The goal of international environmental negotiation is to promote improved protection of the global environment through more equitable and feasible agreements. Since environmental negotiation is clearly science-driven, the target for change must be the conceptual and procedural structures of international

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environmental science. In this section we present three prescriptions for improving the current state of affairs at both the domestic and international levels: a conceptual change to set the stage for a better balance of science and politics; an incremental approach to diversifying environmental science; and a new framework for environmental science within the bounds of international politics. Progress in environmental protection will not require the separation of science and politics; it would be futile to try this. Instead, what is needed is the synergistic interaction of the two. Continuing feedback from one to the other can form the basis of environmental learning—reformation of the ways of knowing about humanity’s place within the natural environment. A Statement on the Role of Science in Politics The first step in the reform of the scientific contribution to international environmental negotiation should consist of a clear statement of intent on the part of the international community on the need to subordinate science to politics. Rather than aiming to create neutral scientific advisory panels, we propose establishing standards of acceptability that reflect political realities as well as scientific principles. The objective should be to force the scientific process from the periphery to the center of the negotiation where it can adequately and visibly be observed by every participant at every stage of the environmental treaty-making process. Transparency and acknowledgment of uncertainty would be key components of this statement. Understanding the historical roots of the myth of scientific objectivity, this statement is the starting point for reestablishing the credibility of science through the basic scientific principle of verification by many parties. When this process is transparent, the veracity of the science can be scrutinized and confirmed. But this statement should also recognize that many of the constructs of environmental science can, as yet, only be stated in degrees of certainty. By acknowledging the uncertainty remaining in science, politicians (not scientists) would retain the responsibility for making the difficult choices for environmental protection—making the protection of the environment a public good. Who would make such a statement? Existing scientific advisory panels might consider making this their first (and last) explicitly political statement, clarifying their role with respect to the treaty-making process. Participants in negotiations might emphasize these points in the preparation for negotiations to clarify the context through which scientific inputs should be accepted. Finally, UNEP or other treaty sponsors might propose such a statement as part of the ground rules for the negotiation and implementation of resulting regimes.

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Affirmative Action Science For mechanisms of scientific verification to function effectively, the scientific field must be diverse enough for competing models to be advanced and challenged from many points of view. For example, stratospheric science would gain in credibility if researchers outside of the United States or in nongovernment sectors were able to evaluate independently the American governmental scientists’ results in that field. The critical challenge is to diversify the scientific field across nations and sectors. Collaborative institutions—whether conferences, publications, expeditions, or research facilities—promote the importance of global issues and aid in diversifying the field. According to Susskind and Ozawa (1992, p. 160), “all nations should commit themselves to strengthening the network of international scientific institutions.” But the cloak of international cooperation will not completely solve the glaring disparities in scientific and technological capabilities that exist among states today. Inevitably, international scientific institutions remain dominated by science generated in a handful of countries. As international institutions are ultimately the sum of their participants’ interests, and unless the less-endowed countries are more closely and more genuinely involved in the scientific process, any change is likely to be purely cosmetic. How can we move beyond cooperative ventures, involving only a token representation from the South, to genuinely collaborative efforts that reflect the scientific strengths and political interests of all participants? For one thing, cooperative undertakings need not be limited to hard technology issues such as developing stratospheric science in developing countries; soft technology issues like collaborative biodiversity prospecting can make creative use of indigenous expertise. Another important measure is to locate institutions and facilities in underrepresented countries and regions. Even if many of the participating scientists initially come from developed countries, situating them in the context of an LDC or a newly industrialized country (NIC) may help orient the perspective of the collaborative monitoring and analysis; it will certainly help to encourage the participation and further training of technicians from the host country. Another measure would emphasize South-South cooperation as well as NorthSouth exchanges. Whether on the scale of the Sino-Brazilian monitoring satellites or proposals for cooperative biodiversity cataloging within Latin America, countries in the same region or at similar stages of development will benefit from learning from each other as well as from the developed nations. Active measures to bolster indigenous scientific capacities will draw political attention to environmental issues and promote environmental learning at the domestic level, particularly in LDCs and NICs. Exchanges of data, methodologies, and personnel among scientific establishments in different nations, sectors, and disciplines may bring them into the membership of an epistemic community

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of environmental experts sharing common ways of ordering knowledge. States that participate effectively in environmental science and negotiation are then better able to implement agreements because they reap the benefits of the learning process of negotiation, incorporating at least some of the goals of the global community, and also because in the process of developing the scientific expertise to evaluate technical issues in negotiation, they lay the groundwork for the technical infrastructure required to implement the agreement. The active measures we suggest might be called affirmative action science. Besides waiting for individual states to strengthen their contributions to the network of international science, we call on UNEP, other intergovernmental organizations, nongovernmental organizations, and private foundations which sponsor environmental research to distribute projects and funding with the explicit aim of diversifying science. The primary rule would be to favor, as much as feasible, the allocation of funds, facilities, and tasks to geographic areas, categories of countries (grouped by level of technical development or by common interests), and sectors (public, private, or educational) that are currently underrepresented in environmental science. Returns in terms of political acceptability should be considered as important as other concerns for scientific accuracy and effectiveness. Of course, collaborative projects that meet these criteria would be especially welcome. A secondary rule on allocation of scientific resources would be to avoid the creation of monopolies by certain countries or groups of countries over certain fields of science. To do so, scientific tasks would have to be divided both horizontally (so that no country has a monopoly over one particular stage of the scientific learning process) and vertically (to minimize the risk of one scientific discipline being dominated entirely by one country or a handful of countries). The scientific process would operate diagonally, meaning that each step of the learning and monitoring process would ultimately be dependent upon other tasks performed in another country. The acceptability of science would be reinforced by dividing the scientific process into a large number of stages of similar importance and by enhancing the sense of interdependence. Affirmative action rules on the distribution of science would be a means of facilitating technology transfer from the industrialized countries to the LDCs, at least in the realm of the environmental sciences. There would be costs to be paid in the short run, both in terms of capital required and scientific efficiency lost. In the long run, however, as regimes and organizations invest increasing portions of their scientific budgets in developing countries, momentum would build up and bolster the capabilities of indigenous scientific communities. A diversified, interdependent network would further the political credibility of science and make for better science itself.

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A New Structure for Environmental Research Our final recommendation aims to define the role of science within the boundaries of a future environmental treaty regime. Politics and science are inextricably linked to the extent that it is futile, even counterproductive, to try to radically separate the two. They indeed complement each other in a two-way interaction. As we have tried to establish in the preceding pages, political considerations cannot, and should not, be divorced from the scientific process. To the contrary, scientific considerations should be integrated into the political negotiating process at mutually agreed and regularly scheduled intervals. This points to the need for a synergistic action of science and politics (see Figure 5.2). At the international level, as Susskind and Ozawa (1992) point out, the current convention-protocol approach to international environmental treaty making is ill-suited to the efficient utilization of scientific inputs. For one thing, the convention stage of the negotiating process does not require a full discussion of the science underlying the problem that the regime proposes to tackle. We propose not only to bring science into the political process under the conditions we described in our first recommendation, but also to institutionalize the interaction of politics with science into a predictable procedure. In our model, science would be channeled into a political mold right from the outset of the negotiation. It would amount to managing science so as to make it fit into the negotiation regime; not twisting the latter to make it comply with the specific exigencies of scientific knowledge, which in many instances are case-specific. The major characteristic of this proposal is that the scientific process would be bounded by political decision-making procedures. The first of these would be the topic for one of the very first decisions taken by treaty negotiators. Whether codified or ad hoc, the rules on scientific contribution would be set from the very start of the negotiating process. Ideally, the allocation of the scientific work would be decided at that stage; research needs would be defined and funds would be apportioned according to affirmative action standards. Once the rules on scientific inputs have been established, research, testing, and monitoring would be allowed to proceed unimpeded. Granted, not all scientific work on the topic under consideration could, nor should, be subject to these rules. In effect, a two-tiered scientific community might be created. “In-house” (regime-supported) science, although lagging in expertise, would be considered politically acceptable for the purpose of the negotiations. Outside science might advance in sophistication, but for the purpose of the negotiations its findings would be subject to validation by in-house panels. Most probably, the influence of independent outside scientific findings and research would prod political decision makers to push issues of particular concern through the first political filter. Also,

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FIGURE 5.2. A NEW STRUCTURE FOR REGIME-FUNDED INTERNATIONAL RESEARCH Environmental Issue

Outside Scientists and Monitoring

Political Filter #1: Rules on Scientific Inputs

Allocation of Scientific Work: —Research —Facilities —Funds —Distribution and Number of Scientists

Domestic Policy

New Analysis Pure, Unimpeded Scientific Process (Within Limits of Agreed Distribution) In-House Monitoring

Prescriptions, Scenarios

Domestic Policy Political Filter #2: Decision Making

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nongovernmental organizations would make their most forceful lobbying effort at that stage. That is a risk we should be willing to incur insofar as it reduces the probability that regimes would be rejected simply on their scientific content. However, should it be the case that the rift between in-house and externally generated science becomes too important, pressures would develop within the regime for the inclusion (subject to the workings of the first political filter) of theories, findings, models, and data originating outside the regime itself. Not only could a country (or a group of countries) exert pressure to elicit the inclusion of new ideas and data, it would also be possible for a country to pressure the political arm of the regime into refusing the inclusion of new scientific inputs or to block the adoption of new scientific paradigms. The products of in-house scientists would be models and scenarios for evaluation by the political participants in negotiations. Probability weights should also be ascribed to each of the elaborated scenarios for optimal information. Several options should be open for political decision makers to choose at their own will, according to their respective costs and benefits. The decision is admittedly an exclusively political one, in line with our assertion that it is the political leadership—and not the scientific community—which must take responsibility for the difficult choices necessary for environmental protection. But scientific inputs should not make a once-only foray into politics. Rather, science should continuously breathe energy into decision making by introducing new theories, new concepts, and new findings upon which the political arm of the regime would need to act. The second tier of the proposed model is to have science interact with the unfolding of the negotiation and its aftermath. Scientific inputs would start accruing again during the post-agreement monitoring phase. Ideally, a regular duration of time between the introduction of new scientific findings and the embracing of adaptive policies would be fixed. This model is highly amenable to the adoption of contingent agreements. As noted earlier, uncertainty about global environmental issues is a major characteristic of these negotiations. Just as scientific models are commonly proposed on the basis of limited data and amended as better data becomes available, prescriptions for action in environmental protection are also subject to improvement. Recognizing this, international agreements may incorporate measures for making environmental protection actions contingent on the results of future monitoring and scientific analysis. For contingent agreements to work, the regime must put into place internationally acceptable, verifiable mechanisms for scientific monitoring. Once the responsible officials have accepted the contingent agreements, it is not inappropriate for scientific panels to be charged with invoking one or another

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of the contingent measures on the basis of the accepted objective data. To a limited degree, the ozone layer agreements incorporate this provision. An even more preferable scheme would address advances beyond objective data to internalize new models or modes of analysis. This would require reconvening the political actors to make subjective evaluations of the new prescriptions or scenarios. Incorporating this feedback into the treaty structure would make it a mechanism for building the most valuable tool in global environmental protection: environmental learning. International environmental organizations (whether governmental or nongovernmental) are the most suited to construct this bridge between science and politics. Ideally, the proposed guidelines would be adopted by organizations such as UNEP into a codified document. All negotiations occurring under the aegis of UNEP would then be mandated to follow these procedures. Alternatively, a softer version of these rules could be adopted as part of framework agreements. Only the most general rules would be codified and it would be left to negotiators to hammer out, on an ad hoc basis, the precise figures regulating the contribution of scientists for each regime.

Conclusion Politics harbors a love-hate sentiment toward science and scientists. The rigor of the scientific rationale is appealing to political decision makers, especially when the interests they represent (or they perceive they should represent) are supported by cogent theory or incontrovertible evidence. However, the scientific process exhibits a great deal of rigidity that different actors cannot accommodate. The proposals presented in this chapter aim to correct the imbalances between science and politics as they have manifested themselves in international environmental negotiations. The call for an infusion of politics back into science challenges common assumptions about scientific objectivity, while the structural prescriptions presented here confront the difficult issue of political responsibility. In offering a new perspective on these problems we hope to prod both science and politics towards the overarching goal of global environmental protection.

Reference Barnes B., & Edge D. (1982). General Introduction. Science in Context: Readings in the Sociology of Science (p. 2). (Cambridge, Mass: MIT Press) quoted in Haas (1990, p. 50).

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Notes 1. It might be argued that the arguments put forth by Japanese fishing interests about driftnet use or those put forth by some major whaling nations about multi-species management are examples of political use of scientific arguments. This kind of reasoning has been made possible by manipulating a better understanding of the science of species population dynamics. 2. For an illustration of this approach, see the 1 June 1992 issue of The New American, and in particular “Nothing More Than Hot Air” (pp. 7–8) in which John F. McManus aims to dispel the myth that scientists are united behind the notion that CO2 emissions pose a serious threat to the earth’s climate. 3. This is not to suggest that computer modeling is without use. To the contrary, it represents the only available source of discernment on some issues (such as global warming) that are essentially beyond our immediate perception and grasp. However, it remains but a broad brush depiction of the complicated relationship between humanity and the natural environment. 4. For example, Sarah Laird (1993, p. 119) contends that prospecting for drugs is markedly more successful when use is made of what she refers to as the “ethnobotanical filter.” 5. Citing Thomas Kuhn’s The Structure of Scientific Revolutions, Robert Proctor (1991, p. 211) elaborates the point: “One sees (at least to some degree) what one wants to see, what one thinks it is possible to see. In China, where cosmological traditions envisioned a changing universe, sunspots and new stars were recorded as part of the natural course of events. In the West, such violations of the immutable crystalline spheres often went unnoticed, at least until the Copernican revolution destroyed the spheres and ushered in a new conception of the universe.” 6. See for instance, Peter Haas’s (1991, p. 50) discussion of this debate during the Med Plan negotiations and how it might have reflected the interests of France, the dominant power in the region. 7. Earlier U.S. critiques of the project had focused on the Concorde’s emission of nitrogen oxides in the stratosphere as a reason why it should not be granted access to American airports. This analysis proved unfounded so that when the (well-grounded) CFC scare emerged, distrust was at its peak. 8. Attempting to adopt foreign technology without admitting the corrupting influence of foreign political philosophies became a source of tension for the Chinese leadership. This problem has been debated in China since the nineteenth century. Qing dynasty reformers promoted a distinction between “ti” (essence) and “yong” (use)—retaining a traditional Chinese essence or philosophy while adopting foreign innovations for practical use. 9. UNCHE was one of the first opportunities for the Beijing government to appear in a U.N. forum; special assistance from the UNCHE secretariat helped China to arrive as one of the best prepared, if least cooperative, of the developing countries at the Stockholm meeting (see Najam, 1993; Herter and Binder, 1993). 10. The Salzburg Initiative “is the product of conversations among more than 100 diplomats, environmentalists, corporate executives, journalists, and international relations experts from 20 countries—both North and South. Beginning in 1988 with support from the United States Greeley Foundation for Peace in Justice, meetings held in Austria, Germany, and the United States and subsequent extensive interaction with activists and politicians in dozens of countries produced the ten key recommendations” (IENN, 1992, p. 6).


Y CHAPTER SIX

SCIENCE AND ECONOMICS IN CLIMATE CHANGE AND OTHER INTERNATIONAL ENVIRONMENTAL NEGOTIATIONS Peter Zapfel

nternational environmental negotiations require extensive scientific input. This chapter investigates the role of one discipline, economics, in an effort to generate recommendations about its role in dealing with the intensive negotiation efforts in this decade surrounding the global environmental issue of climate change. Social science, and economics in particular, has become a significant factor in climate change negotiations. At present, the United States is prominent among those nations opposing firm targets and timetables for emission reductions of greenhouse gases (primarily carbon dioxide).1 The United States is also a country in which the influence of economists and economic analysis in public decision making is stronger than in many other countries, both industrialized and developing. The literature of treaty negotiation has recognized that the role of science is unclear. A set of reform proposals known as the Salzburg Initiative (Susskind, 1994) includes a recommendation about the relationship between science and politics. On the basis of a survey of scientists from various disciplines, this chapter evaluates the hypothesis that economics constitutes an impediment to more profound international agreement on climate change. In addition, the survey will offer guidance on how economics should impinge on international environmental negotiations and the interaction of science and politics. The group of scientists interviewed was selected from about 2,500 experts participating in the Intergovernmental Panel on Climate Change (IPCC).

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Science and Economics in Climate Change

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Admittedly, the restriction of the sample to scientists working on climate change issues limits the perspective of the survey. Further research could investigate the same issue by addressing scientists, negotiators and policy makers working on climate change as well as other issues. The first section of the chapter provides an overview of the literature on the role of science in public policy in general and in environmental issues. The next section describes economics as a social science and offers a brief review of the history and negotiations of climate change. Following a detailed introduction to the Intergovernmental Panel on Climate Change, the final section presents the results of the survey. Finally, these results are used to recommend ways to improve and reform the process of international environmental negotiations in terms of the interaction of science, economics and politics.

Science and Public Policy Science and technology have experienced enormous progress in the last decades. At the same time the influence of scientists on politics has grown steadily. Nowadays many governments make use of scientific advisory bodies (one of the numerous examples is the Council of Economic Advisors in the United States) in formulating their policies. This has led to science-intensive decision-making processes. However, there are no established theories and only a small set of literature about the relationship between science and politics. As construed in the political realm, science is assumed to be free of value judgments. Ozawa (1991) refers to this approach as Logical Positivist Empiricism (LPE). In this view, science is politically neutral, data are objective because they are collected through experiment and observation, and every problem has a true and well-defined answer. Any scientific disagreement is ultimately caused by error. Obviously this viewpoint is a rather theoretical one. In practice, as Caldwell (1990) states “government investment in science . . . is influenced heavily by particular interests and with little effort to assess relative benefits to society.” Ozawa has also developed a suggestion on how scientists and politicians should interact. This approach is called “consensus-based decision making” (CBDM). In CBDM, scientific disagreement may be traced to types of phenomena, of which error—the predominant cause of scientific falsehood if the logical positivist construction of science is accepted—is only one source. Ozawa suggests that scientific disagreement may also be traced to differences in research design, differences in the interpretation of data or findings, confusing communication and inappropriate policy prescriptions.


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The LPE paradigm implies a major change in the way science and politics should interact. Politicians have used sophisticated scientific language as a shield behind which to advance political views. CBDM calls for open discussion among scientists and political opponents in order to elicit the basis for scientific disagreement. It enables all parties to a conflict, regardless of their resources, to understand the basis of disagreements and participate in decision making. Such an approach to international environmental negotiations could be of special benefit in allaying the defensive impulses of developing countries in areas in which industrialized countries hold more or less a monopoly on scientific knowledge. Several theorists have posited ways in which science can intersect with decision making. Ozawa identifies four phases of the decision-making process in which science may be involved: 1. 2. 3. 4.

Agenda-setting Problem formulation Identification of alternatives Decision choice

Susskind (1994) separates the environmental negotiation processes into four stages also: 1. 2. 3. 4.

Issue definition Fact-finding Bargaining Regime strengthening

With regard to the infusion of scientific evidence into decision-making and negotiation processes, Susskind (1994) has defined five potential roles for scientists: trend spotters, theory builders, theory testers, science communicators and applied policy analysts. Revenier and Henderson (1994) mention four ways in which scientists might intervene in international environmental negotiation processes, to 1. 2. 3. 4.

Identify problems Focus attention and ways of thinking Predict possible outcomes Monitor progress

Clearly, natural scientists should play different roles than social scientists. Natural scientists are more engaged in the early stages as, in Susskind’s taxonomy,



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trend spotters and theory builders. The expertise of social scientists will be needed at later stages as applied policy analysts in evaluating alternatives and assisting in the decision process. A relatively new idea relating to international relations theory, international environmental negotiations and the interface of science and policy is the concept of epistemic communities as termed by Haas (1992). An epistemic community is a transnational, informal group of scientists, government officials and others with a shared belief in a global problem and ways to solve it. They form a lobbying or pressure group supporting international action to counter the problem. Haas (1990) has argued for the existence of this phenomenon based upon his studies of the Mediterranean Action Plan. In the literature the idea has earned several critical comments. The spectrum of reactions ranges from outright rejection to doubts that epistemic communities can do very much to make policy more effective. Zartman (1992) argues that transnational interest groups form in response to national agreements and not in order to advance them. Porter and Brown (1996) are ambivalent in acknowledging on the one hand that “scientific elites may play a supportive and enabling role in some . . . negotiations” but stating also that “on other issues they remained divided or even captured by particular . . . interests.” Boehmer-Christiansen (1996) and Susskind (1994) are among those who question the usefulness of epistemic communities. Boehmer-Christiansen thinks that “the epistemic approach tends seriously to exaggerate the independence of expert communities from the political process.” She also stresses that the existence of these expert communities above politics raises very serious questions. A similar view is supported by Susskind when he mentions the boomerang effect. He believes that epistemic communities acting in ignorance of national interests are not sustainable since political actors will replace these scientists with others who support national agendas. Finally, Young (1994) regards epistemic communities as “neither necessary nor sufficient to the achievement of regime formation.” It appears certainly true that the epistemic community is a vague concept in need of refinement. So far the idea has been limited to scientists and scienceliterate actors working for the advancement of global agreement. These communities could also include other actors (for example, business) working against consensus on solving global or regional environmental problems. An alternative theoretical approach to the interaction between science and politics is the idea of Advocacy Coalition Frameworks (ACF). ACF is a theory positing that public policy is formed through competition—competing coalitions in which one prevails and sets the policy. Coalition formation is based upon a three-tiered set of beliefs (deep-core normative beliefs, near-core policy beliefs, and secondary aspects). Some beliefs are easier to change than others.


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In this view, policy changes are seen either as a product of interactions within a coalition or a reaction to system-wide events. Scientists come into play through the contribution of policy-oriented learning within a coalition or policy subsystem. For example, the IPCC was a major factor in the policy-oriented learning that occurred within the international policy subsystem that favored action to combat global warming in the Framework Convention on Climate Change (FCCC) negotiations.

The Influence of Economics and Economic Analysis Economics is an academic discipline initiated by the Scottish moral philosopher Adam Smith about two centuries ago. It is the behavior of homo oeconomicus, that is the rational individual who is trying to maximize individual well-being (or utility in economists’ jargon). Since its foundation, several subdisciplines (microeconomics, macroeconomics, political economy and so on) and applied branches (among others financial, industrial, environmental and labor economics) have developed. For the sake of argument, this chapter will focus on the work of welfare economics. The centerpiece of this branch is the Pareto criterion as a measure of the maximization of social well-being. The underlying decision rule recommends that a policy/action should be undertaken, if at least one person in society is better off (measured in utility) and no one else is made worse off. In a substantially weakened form—the Kaldor-Hicks criterion—a policy is worth pursuing if the winners’ gain is greater than the losers’ loss. Alternatively one can think of costs and benefits. An action should be taken if the benefits exceed the costs. Welfare economics has developed a decision tool called cost-benefit analysis. Implicit assumptions for the use of this technique are that all costs and benefits are quantifiable and in monetary or other units. In order to compare costs and benefits accrued over a longer time period, the discounting of future payments to their net present value is applied.2 This concept implicitly assumes, if applied over long time horizons (as in climate change) that future generations will value all resources (for example, trees) in terms of tradable units without qualitative differentiation. Cost-benefit analysis is controversial not only outside the discipline but also inside; some economists, for example, Lave (1996), doubt its usefulness. It appears that cost-benefit analysis and discounting are useful tools but their applicability is restricted to decisions that involve highly uncertain consequences in terms of future costs and benefits and stretch over time spans of more than one generation. The results of economic analyses should be interpreted carefully. Although economists



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use sophisticated quantitative (statistical and mathematical) tools the outcomes must be viewed as having wide margins of error.

History of the Negotiations on Climate Change Climate change (or global warming or greenhouse effect) is known to be among the most prominent global environmental problems. The essence of the problem is that increased concentration of greenhouse gases (carbon dioxide, methane, CFCs etc.) in the atmosphere would cause global surface temperatures to increase by about 1.5 to 4 degrees Celsius in the next 50 years. While there is basic scientific agreement about the increase in average global temperatures, human knowledge about regional weather patterns and about potential change in the regional patterns is incomplete. At present, it is expected that temperature increases will be higher in areas closer to the poles and lower closer to the equator. However, major scientific uncertainty persists about these nonlinear atmospheric responses. A high degree of scientific agreement has been achieved about the sources of increased greenhouse gas production. The burning of fossil fuels (coal, oil, gas) is the main contributor to CO2 concentrations while livestock farming and rice paddies are among the contributors to methane emissions. According to Boehmer-Christiansen (1996) the issue of global warming was originally mentioned in 1827 by a scientist called Fourier. International awareness did not emerge until the 1980s, although the United Nations Environment Program (UNEP) had hosted the First World Climate Conference in 1979. In 1988 the Toronto NGO Conference on the Changing Atmosphere Implications for Global Security took place. This event resulted in a call for a 20 percent reduction of global carbon dioxide emissions. The culmination of international efforts was the signing of the Framework Convention on Climate Change on May 9, 1992, at the Earth Summit in Rio de Janeiro. The FCCC does not contain any specific and enforceable obligations except a commitment to produce national reports on anthropogenic greenhouse gas emissions and sinks in order to facilitate a global greenhouse gas inventory.3 So far the Conference of the Parties (COP) has met twice: 1995 in Berlin, Germany, and 1996 in Geneva, Switzerland. The next COP will take place in Kyoto, Japan, in December 1997. The COP-2 meeting in July 1996 concluded with an unexpected result. For the first time, the United States—up to then among the block of veto states— has supported the initiative to pursue firm reduction targets and timetables for the post-2000 period.


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Skolnikoff (1993) has presented an excellent discussion of the complexity of the challenge of negotiating effective agreements on global climate change policies. He has attributed the following six characteristics to the climate change issue: 1. Interdependence of interests 2. Interaction of two large, complex systems: ecosystem and human socioeconomic system 3. Large, contentious and persistent scientific uncertainty (about the causes of climate change, the effects of precipitation, sea level and ice cover, the temporal and spatial distribution of effects, consequences on agriculture, human health and diseases, urban and coastal areas) 4. Global nature of causes, effects, actions and policies while differences between industrialized and developing countries persist 5. Dependence on science and scientists 6. The perception of a planetary threat

The Intergovernmental Panel on Climate Change The Intergovernmental Panel on Climate Change (IPCC) was jointly established in 1988 by the World Meteorological Organization (WMO) and UNEP to assess the scientific, technical and socioeconomic research in the field of climate change. The results of IPCC’s work were and are used as input in the negotiations on the FCCC and subsequent protocols. By the end of 1996 the IPCC had produced and published 17 scientific reports (see Intergovernmental Panel on Climate Change, 1996a, Appendix II), including two comprehensive assessments (1990 and 1995). According to Moomaw (1996) about 2,500 scientists have been involved in the research done so far. Boehmer-Christiansen (1996) refers to IPCC as “the largest international exercise in scientific-advice-giving.” These facts make the Panel an ideal object to study the interactions of science, economics and politics in environmental treaty making. The IPCC Secretariat is located at the WMO headquarters in Geneva, Switzerland. Each Working Group (WG) has a Technical Support Unit (TSU). WG I is coordinated from the Hadley Centre of Climate Prediction and Research at the U.K. Meteorological Office. WG II in Washington, D.C., is located at the United States Global Change Research Program. Finally, the TSU for WG III is Margaree Consultants in Toronto, Canada. WG III serves as the primary means for conducting economic analysis (modeling, cost studies of emission reductions, impact of carbon taxes and so on) used in climate change negotiations.



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The semiannual IPCC plenary sessions are attended by government scientists, research managers, and (mainly junior) government officials working on national climate policies or preparing negotiations (Boehmer-Christiansen, 1996). These sessions are for formal decisions only. Most of the scientific work is done within the Working Groups and subdivisions of them. The IPCC Secretariat selects authors and reviewers for reports in accordance with governments. Table 6.1 shows the results of a structural analysis of the nationalities of climate change experts active in the IPCC. The data comes from the listings of contributors and reviewers in the appendixes of the three reports that constitute the Second Assessment (IPCC, 1996a, 1996b, 1996c). As the table highlights, Annex II—often referred to as “developed countries”— contribute almost 80 percent of IPCC scientists. The 615 members from the United States represent more than 31 percent of total IPCC participants. The five largest delegations (United States, United Kingdom, Australia, Canada, and Germany) include 1120 people or almost 58 percent of the analyzed sample. The five-country concentration index is a very good indicator for the substantial agglomeration of scientific know-how in a few advanced countries in the developed world. Table 6.2 underlines the strong dominance of industrialized countries by calculating the average number of IPCC participants per country group. Table 6.3 compares the relative shares of country groups in the IPCC with their economic wealth (measured in 1993 Gross National Product figures). The Index of Equivalency in the last column has been generated by dividing the IPCC figure by the GNP figure. An index greater than 1 has to be interpreted as overrepresentation compared to the yardstick of economic wealth, while an index below 1 indicates under-proportional representation in the IPCC. Because of the small figures involved the index figure for Africa is of limited value.

TABLE 6.1.

Developed Countries5 Transition Economies6 Asia Latin America Africa Others7 Total

NATIONALITY OF IPCC MEMBERS BY WORLD REGIONS.4 WG I

WG II

WG III

Total

675 38 26 34 19 14 806

723 28 70 49 42 29 941

180 10 21 9 8 8 236

1539 76 117 91 68 50 1941

Source: Calculations of the author based on IPCC (1996a,b,c).


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TABLE 6.2.

EXPERT CONCENTRATION RATES OF IPCC MEMBERS BY WORLD REGIONS. A

B

C

D

1 5 3 9 7 6

7 9 — 3 3 — 9

2 4

Asia

1 1 7

6 — 0

2 1

Latin America

9 1

1 3

Africa

6 8

4 — 7 — 3 — 5

Others

5 0

2 — 6

NA NA

3 — 3 0 0 — 3 5 0 — 2 9 0 — 3 6 0 — 1 8 NA NA

Total

1 9 4 1

1 0 0

NA NA

NA NA

Developed Countries

Transition Economies

1 1

1 9

A Total B Percentage of total C Number of countries D Concentration rate in percentage Source: Calculations of the author based on IPCC (1996a,b,c).

Economists form the thrust of WG III. The current WG III was only initiated in 1993, after the former WG II and WG III were merged into the current WG II the same year. In a critical evaluation of the work of the IPCC between 1988 and 1992 Boehmer-Christiansen (1994) concludes that the IPCC was most successful in the promotion of interdisciplinary research but less so in providing policy advice. The reason given is an isolation of the IPCC from the political process. This isolation is caused by the size of the body and the Working Group structure. Boehmer-Christiansen



TABLE 6.3.

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IPCC MEMBERS AND GNP BY WORLD REGIONS (AS A PERCENTAGE OF TOTAL).

Developed Countries Transition Economies Asia Latin America Africa Others Total

A

B

C

79.3 3.9 6.0 4.7 3.5 2.6 100.0

80.2 2.9 9.6 5.7 1.6 NA 100.0

1.01 1.34 0.63 0.82 2.19 NA NA

A IPCC members in percentage B Percent share of 1993 World GNP C Index of equivalency Source: Calculations of the author based on IPCC (1996a,b,c) and World Bank (1994).

remarks also that the model used in the Panel’s work up to 1992 is questionable. It rests on the assumption that natural science is the only source of advice needed by politicians.

Survey Design and Results In order to gather empirical evidence for some ideas and to serve as an input for the formulation of recommendations, an electronic mail survey (see appendix for survey text) was addressed to a stratified sample of 63 IPCC scientists who participated as contributors and/or reviewers to the Second Assessment Report in 1995. The sample was selected to be representative of the regional distribution along one axis and scientific disciplines (in terms of the strength of the three Working Groups) along the other. Table 6.4 shows the composition of the sample. TABLE 6.4.

Developed Countries Transition Economies Asia Latin America Africa Others Total

COMPOSITION OF SURVEY SAMPLE. WG I

WG II

WG III

Total

21 1 2 1 1 0 26

25 1 1 1 1 1 30

5 0 1 1 0 0 7

51 2 4 3 2 1 63


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Out of the 63 questionnaires sent out within a period of three and a half weeks 35 responses were received. The composition of the respondents is illustrated in Table 6.5. The most important results of the survey are presented and discussed below. The first important question in the survey (No. 2) was designed to elicit opinion about the relative importance of social versus natural sciences in the climate change issue. Table 6.6 shows the replies. As the table shows, the majority considers the two basic scientific disciplines to be equally important. Three natural scientists considered social sciences to be more important, while no declared social scientist gave natural sciences a stronger weight. A set of questions (Nos. 3 to 6) was designed to deliver some input about the use of economic analysis in climate change negotiations. Table 6.7 illuminates the distribution of answers. Several observations can be made about these results. Cost-benefit analysis and discounting are less popular than the use of economic analysis for setting a global reduction target or choosing instruments to avert or mitigate climate change. None of the questions received outright denial (average close to 1.0) or strong agreement (average close to 2.0). Agreement was strongest that economics should be used in the choice of policy instrument. Aggregating the responses to the four questions yields an economics acceptance indicator (see footnote for computation) of 1.65. This raw figure shows that the questioned sample acknowledges the use of economic analysis but does not embrace it fully. TABLE 6.5.

Developed Countries All Others Total Response Rate in %

TABLE 6.6.

COMPOSITION OF RESPONDENTS. WG I

WG II

WG III

17 0 17 65.4

15 1 16 53.3

1 1 2 28.6

Total 33 2 35 55.5

Response Rate in % 64.7 16.7 55.5

RELATIVE IMPORTANCE OF NATURAL AND SOCIAL SCIENCES IN CLIMATE CHANGE.

(Scientists) Natural more important Equal importance Social more important Total

Natural

Social

Total

5 21 3 29

0 4 2 6

5 25 5 35



TABLE 6.7.

Cost-Benefit Analysis Discounting Global Goal Setting Instrument Choice Total

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THE ROLE OF ECONOMIC ANALYSIS. no (1)

yes, but/ no, but8 (1.5)

yes (2)

Total9

10 12 5 3 30

10 6 11 6 33

15 13 18 25 71

1.57 1.52 1.69 1.82 1.6510

In order to test the level of understanding of economic concepts I have performed a simple check. The use of cost-benefit analysis and discounting are, from the economic point of view, interrelated in the climate change issue because of the long-term character of the problem. I have therefore looked at how many respondents opposed one while supporting the other. Two respondents oppose cost-benefit analysis and support discounting. Four scientists like cost-benefit analysis while rejecting discounting. All of them declared themselves to be natural scientists. By use of this simple test one comes to the conclusion that a number of natural scientists do not fully understand economic concepts. A pair of questions (Nos. 7 and 8) were dedicated to the issue of value-free science. While one question concerned value-freedom in general, the other was directed toward value-freedom of science in environmental treaty negotiations. Table 6.8 provides the results. A clear picture emerges from the table. Most scientists themselves do not believe in value-free use, neither in a general sense nor in the context of climate change negotiations. Fourteen respondents answered No to both questions, while only one person answered Yes in both cases. The clearest answer came in response to the question about the need for interdisciplinary work (No. 9). Thirty-two out of 35 respondents see a need for increased scientific cooperation and interdisciplinary work in particular between economics and natural scientists. Diverging results surface from the question (No. 10) about infusing scientific evidence into the climate change negotiations. While 19 respondents are not TABLE 6.8.

In general In treaty negotiations Total

VALUE-FREE SCIENCE. no (1)

yes, but/ no, but11 (1.5)

yes (2)

19 25 44

9 6 15

7 4 11


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satisfied with the negotiators, eleven thought that their work is taken into account sufficiently. No clear trend emerges from the pair of questions (Nos. 11 and 12) designed to elicit opinions about the distribution of scientific know-how around the globe. Table 6.9 shows the outcome. Finally, an unintended and surprising result emerged from question No. 13 in which respondents were asked to guess the share of Annex II country scientists in the IPCC. The question was designed to determine if IPCC scientists are aware of the dominance of Annex II scientists. However, it was clear from the responses that most scientists do not read treaties. Seventeen respondents did not nominate a guess at all (some of them indicated explicitly that they had no idea what Annex II is) and the guesses received do not indicate an understanding of the question. The highest guess was 50 percent, substantially lower than the actual share of about 80 percent. The average guess was 15 percent. Related survey work has been done by Nordhaus (1994a). What was originally intended as an exercise to gather expert opinion data as input for quantitative modeling of climate change ended in a stand-alone publication that elicits interesting results. Nordhaus interviewed 19 scientists who had a strong interest in the economic impacts of global warming and a working knowledge of statistics. The sample comprised 10 economists (three environmental and seven mainstream economists), four other social scientists as well as five natural scientists and engineers. The survey was designed to obtain estimates on the economic impacts of three alternative warming scenarios (expressed as x degree global average surface temperature increase in y number of years) by asking for expected consequent losses (expressed in percentage figures) in gross world product. The results illuminate several interesting facts. Of no surprise was the wide range of estimates in all scenarios even among experts. However, the clear differences among the disciplines were unexpected. Natural scientists expect economic effects to be about 20 to 30 times as severe as mainstream economists. Almost

TABLE 6.9.

DISTRIBUTION OF SCIENTIFIC EXPERTISE. yes, but/ no (1) no, but12 (1.5) yes (2)

More even spread would further negotiations Locate research institutes in developing countries Total

13 17 30

3 5 8

19 11 30



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unanimously all experts expect developing countries’ economies to be hit harder than the ones in developed countries. Many non-economists made a strong point regarding difficulties of natural ecosystems to adapt to global warming. The experts believe most impact to lie in market areas and not in other ones like human health, species and plant diversity. Several people were concerned about the limited knowledge of the biogeochemical system and some even assumed an intrinsic unknowability of the system. One response to the Nordhaus survey is representative of the attitudes of those surveyed (Nordhaus, 1994a): “I must tell you that I marvel that economists are willing to make quantitative estimates of economic consequences of climate change where the only measure available are estimates of global surface average increases in temperatures. As one who has spent his career worrying about the vagaries of the dynamics of the atmosphere, I marvel that they can translate a single global number, an extremely poor surrogate for a description of the climatic conditions, into quantitative estimates of impacts of global economic conditions.”

Recommendations The recommendations below concern three broad aspects of environmental negotiation. First, a pattern for the interaction between scientists and policy-makers in negotiations is suggested. Second, some suggestions are formulated about the structure of science in a broad sense. The final recommendation is geared towards redefining the role of economists in environmental negotiations. In general, the recommendations are not formulated in an operationalized way but rather indicate some broad directions for future development. Since some of them require paradigm shifts, they are designed to raise issues, and point to new directions for research, rather than to offer solutions. Recommendation 1: Abandon the Illusion of Value-Free Science Because some environmental problems are the result of very complex interactions between human beings and ecosystems, negotiations concerning them require considerable scientific input. Environmental problems have revealed the limits we face in understanding nature, even in technically advanced societies. The greenhouse effect is only one example of such a situation (others are biological diversity and endangered species). Even assuming we are able to gather sufficient scientific evidence, it might come too late to contribute to an effective policy response. Global warming is sometimes contested by those claiming that temperature increases measured over the last decade are not necessarily indicative of long-term


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temperature trends, and therefore do not justify preventative action. However, to reach a high degree of scientific certainty we would probably have to wait for another century or two. Should global warming indeed exist, by that point it might be irreversible. The basic lesson to draw is that value-free science is an illusion to be abandoned. This recommendation is strongly supported by empirical evidence provided in Table 6.8. However, I do not want to rule out the value of good science. The point is that a certain share of science will never be value-free. Scientists are used for political purposes and some may use their scientific reputation to pursue self-interest. The use of government experts by political forces subverts the appropriate relationship between science and politics. In an ideal world scientific input should be used to formulate policies. In practice, science is often used to support preferences for policies that have already been determined regardless of scientific evidence. The philosopher Capra (1996) articulates this argument well: “It is generally not recognized that values are not peripheral to science and technology . . . Although much of the detailed research may not depend explicitly on the scientists’ value system, the larger paradigm within which this research is pursued will never be value free. Scientists, therefore, are responsible for their research not only intellectually but also morally.” Both natural and social scientists are potentially both victims and delinquents at the same time. Politicians in favor or against action to combat global warming choose scientists as advisors to argue in accordance with their subjective beliefs or agendas. Natural scientists hesitant to agree to the existence of the greenhouse effect and economists reluctant to recommend policies to abate greenhouse gases (for example, carbon taxes) are used by politicians opposing action on climate change and vice versa. Self-interest crystallizes itself for example, in the IPCC as a perpetual demand for more scientific knowledge (Boehmer-Christiansen, 1996). Another downside of this illusion or ideal of value-free science could be that some scientists in their endeavor to live up to the theoretical ideal refuse to work with political actors although their input might be valuable and required to further political and negotiation processes. The economic debate between Nordhaus (1994b) and Cline (1992) demonstrates how science should not be done. Both experts have done some modeling of the impacts of carbon taxes and other abatement policies on economic growth and social welfare. While Nordhaus has concluded that the U.S. economy as a whole would lose by taking action to reduce CO2 emissions, Cline recommends carbon taxes based upon his modeling results. The outcomes of the models differ not because one of the economists has made a mistake but because of the choice of some critical assumptions (for example, discount rate). Policy makers lacking



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an understanding of the technical details of the analyses have an easy task hiding behind their expert of choice. The implementation of the recommendation might be very difficult. Journalism and the media coverage of environmental issues could contribute to a more widespread acceptance of the fact that science is not value-free. However, the new paradigm raises the question: How should science and policy interact if the old paradigm is obsolete? The second recommendation offers an answer to this question. Recommendation 2: Use a Consensus-Based Infusion Process in Early or Pre-Negotiation The way science is viewed and scientific evidence is infused into negotiation processes should be redefined. The core of this new paradigm is derived from Ozawa’s consensus-based approach. If scientific evidence is not fully conclusive because of major uncertainties, scientists should be more active in explaining the major areas of uncertainty and incomplete knowledge, the differences in research design and the interpretation of data and findings to policy makers. Scientists have to change their behavior, becoming more active and explaining their work in a nontechnical language, while policy makers have to be more receptive to understanding the limitations and importance of crucial assumptions chosen in economic and other analyses. To institutionalize this altered infusion process I suggest the formation of Science-Policy Interaction Panels (SPIPs) in negotiation processes. Three issues are crucial for SPIPs to be effective: selection of participants, the choice of a facilitator or moderator, and timing. The scientists participating in these panels should be selected to represent the whole range of opinions existing in the respective areas. When policy makers and negotiation delegates are confronted with extreme scenarios, they are more likely to think critically about the contents of scientific communication. The presentation of dissenting opinions should encourage them to question the differences in the outcome and increase an awareness of the assumptions inherent in analyses. From the political side it is not exactly clear who should attend. In any case it should be politicians and negotiators who can influence the formulation of negotiating strategies and political beliefs. In the choice of a facilitator for an SPIP one should try to find a person known to be neutral on the issue, to increase the confidence of participants. A U.N. commission or office could take the responsibility to select the moderator and location of SPIP meetings.


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The timing of the meetings is as important as the participants. To have an impact on policy formulation, the meetings have to take place at an early stage of the negotiation process, that is in the pre-negotiating or preparatory phase. Once policy makers have made up their minds it will be more difficult to gain their attention. A possible further extension to the SPIPs could be to institutionalize regular meetings between policy makers and scientists in order to frame the global environmental agenda. These meetings should also be attended by NGIs. The objective would not be to transmit expertise from science to politics but to serve as a forum for open discussion of which specific international or regional negotiations are to be initiated. One problem that might arise with institutionalized regular meetings is the setting of the agenda. While the agenda in SPIPs sets itself, the institutionalized meetings would require a mechanism regulating who should decide what is to be discussed. It should also be possible to design a series of meetings to form the global agenda prior to conventions and SPIPs. The meetings could function as a tool to bridge the period from convention signing to protocol negotiations. Incorporating the first two recommendations should constitute progress but some science-related problems will persist. In the case of truly global environmental problems like climate change, the proposed steps still face a major obstacle—the uneven distribution of scientific expertise among countries. Recommendation 3: Mitigate Uneven Distribution of Scientific Expertise Research institutions, scientists and scientific know-how are clustered in industrialized countries. The above discussion of the IPCC demonstrates this problem.13 Why do these asymmetries in expertise constitute a severe problem? The greenhouse effect serves as an excellent example to highlight the issue. Global warming is a consequence of lifestyle patterns pursued in the developed world which require the extensive burning of fossil fuels. However, to avert or adapt to climate change, concerted action is required of both developed and developing countries; further uncontrolled economic development in less advanced countries would increase global carbon dioxide and other greenhouse gas emissions substantially even if developed countries reduce their share by quite a bit. Based on evidence collected primarily by scientists from developed countries, policy makers are asking developing countries to make commitments for the common good. If scientific know-how would be more evenly distributed around the globe, evidence gathered by developing countries would probably increase their sensitivity to the problem and their willingness to make sacrifices.



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Joint Implementation ( JI)14—an idea originated in the United States—has to be viewed from a similar perspective. The controversy between developed (pro JI) and developing (contra JI) countries highlights the limits of economic analysis. A problem in essence caused by rich countries requires a solution calling for perceived economic sacrifice in developing countries. Although it makes economically perfect sense to first pursue the least expensive steps toward reducing emissions globally, reasoning based solely upon economic grounds does not further the negotiation process. While natural scientific knowledge is more dispersed throughout the world, economics as a scientific discipline is a product of Anglo-Saxon culture and has not even been dispersed over the European continent (Amann and others, 1995). An example: Russia has internationally renowned research institutions in the natural sciences (for example, physics and mathematics) but economics is in its infancy. Three non-exclusive strategies can be applied to the resolution of this problem: 1. Transfer knowledge by sending consultants to developing countries. 2. Build capacity by educating and training people from developing countries in developed countries. 3. Build a permanent base of knowledge in less advanced countries by setting up universities as well as international and national research and academic institutions, locating treaty secretariats, and so on. The first alternative is a quick-fix solution that does not address the root of the problem. The use of consultants in the context of international financial assistance for environmental projects in Central and Eastern Europe has been problematic (Amann and others, 1995). The second alternative is a popular medium-term solution and quite effective method of dispersing scientific knowledge. Economic knowledge has been dispersed quite widely in this way. The third alternative as a long-term option has widely been ignored. In the end, negotiations and the fashioning of agreements will be facilitated if developing countries are able to produce scientific knowledge by themselves. The Salzburg Initiative (Susskind, 1992) includes the need to strengthen collaborative international scientific institutions. This recommendation accepts that need and supplements it by locating scientific institutions in the developing countries themselves. In addition, financial support for initiating and establishing national research institutes in developing countries is also recommended. The Regional Environmental Center for Central and Eastern Europe located in Budapest, Hungary, is a move in this direction and deserves imitation.


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In conclusion, the first two strategies should be further pursued and increased effort put into measures in the spirit of the third alternative. The diverging opinions of the surveyed sample with regard to distribution of scientific expertise and location of institutes in developing countries are displayed in Table 6.9. Survey respondents may have been reluctant to embrace this idea because they are from industrialized countries and they see their interests threatened by research budgets and work migrating to developing countries. Since the response rate for scientists from developing countries was very low, I cannot further analyze this issue. Recommendation 4: Strengthen Interdisciplinary Interactions The problem of insufficient interdisciplinary interaction in research was raised over a decade ago by Chen (1983) in the context of carbon dioxide emissions and anthropogenically induced climate change. However, little has been done to remedy this weakness in environmental research. Despite this circumstance, in response to the survey, an overwhelming majority of respondents called for more cooperation and interdisciplinary activity. Stern and others (1993) present an excellent case for the need of interdisciplinary work. They define the following characteristics of environmental systems: complex interdependencies, nonlinear responses, irreversible changes, and long lag times. They state that “these characteristics of the global environment present serious challenges for scientific research and may call for new theories and methods.” Stern and others also call for “alliances across disciplines, particularly between social scientists and natural scientists.” This describes an interdisciplinary model of research rather than the multidisciplinary approach of the IPCC.15 The International Institute for Applied Systems Analysis (IIASA) located in Laxenburg, Austria, is a valuable example of how to approach this work. IIASA was founded in the 1970s as a joint initiative between the Soviet Union and the United States to create a forum for scientific cooperation and work on global problems despite Cold War tensions. Scientists from several countries and various disciplines have successfully worked together at IIASA for two decades. The work of IIASA is more of a multidisciplinary than interdisciplinary character, however, the institute demonstrates a way to fund interdisciplinary work on a sustainable basis. The difficulties of obtaining funding for interdisciplinary project proposals outlined by Chen (1983) still remain. An interesting concept that might deserve further study is the idea of Vernetztes Denken16 developed by the Swiss scientist Frederic Vester (1986, 1988). In this framework, systems are regarded as consisting of various elements linked with



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each other. By analyzing the elements and linkages one can distinguish between four types of elements. One type, so-called active elements, is most suitable for inducing desired system changes. Recommendation 5: Defining a Role for Economic Analysis It is not easy to devise a role for economists and economic analysis in environmental diplomacy. Traditionally, environmental studies and economics have been regarded as two opposing poles. This attitude is nowadays much stronger in the United States than in Western Europe. Looking at the historical process of how environmental issues have entered the political stage both domestically and internationally, we see that natural scientists have been the major promoters from the scientific side.17 Economists did not become part of the discussion of environmental issues as early as natural scientists. The most influential journal in the realm of environmental economics, the Journal of Environmental Economics and Management, was established in 1974. The Association of Environmental and Resource Economists (AERE), a leading association of environmental economists, was founded in 1978. While there was some economic work on environmental issues prior to these dates, environmental economics did not get any serious attention before the 1972 Stockholm Conference. The IPCC has seen a similar developmental process. Economists have only participated in the panel’s work since 1993. What can be said about the arrival of economics in environmental sciences and diplomacy, and what role should be played by economics? Mainstream economic thinkers have considered climate change, particularly the stabilization or reduction of carbon dioxide emissions, from the standpoint of cost, concluding that it would be very expensive in terms of reduced economic growth. In cost-benefit analysis, economists compare emission reduction investments now against the uncertain benefits of averted climate change in the future. If these future benefits are discounted, active climate change policy will inevitably appear costly to society. Neoclassical economics assumes a high rate of substitutability among various amenities and continuing technological progress based on projections of the recent past.18 The economic argument has been that, because of the immense uncertainties involved, we should either do nothing, or pursue no-regret options—those that will pay off even if climate change does not exist. As Holdren (1996) points out, more uncertainty exists among the public and probably also among negotiators than among scientists.19 Economists, however, seem to assume less uncertainty than natural science has produced so far.20 They tend to use global average


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predictions (surface temperature, sea level rise, and so on) in their analyses and more or less assume linear trends all over the planet. This approach tends to produce win-lose scenarios, construed in economic terms.21 Economic thinking has led to distributive bargaining in the negotiations and diplomatic efforts in the FCCC and further protocols, while the problem of climate change might be more amenable to an integrative bargaining approach, especially in the face of continued scientific uncertainty. The results of my survey indicate that economics should not be a decisive factor in making global policy in this area. Cost-benefit analysis and discounting are not appropriate to apply to climate change issues, because the data to perform them accurately are not available. The surveyed sample on the other hand challenges economics to be active in delivering input on how to proceed once a decision has been made to act. Respondents felt that economic analysis can help clarify the costs associated with various emission reduction scenarios and determine which instruments22 should be used to meet emission reduction goals. An illustrative example of the role economic analysis should play in political processes is Title IV of the 1990 Amendments to the U.S. Clean Air Act. Economists23 suggested the use of emissions trading to achieve reductions in sulfur dioxide emissions from electric utilities; the suggestion made it possible to break a political deadlock of ten years duration. Economic analysis (marginal cost studies) had also a role in setting the annual reduction goal of about 10 million tons of sulfur dioxide. In conclusion, economics has a role to play but because of the limited information and enormous uncertainties involved in various environmental problems, global society cannot rely entirely on economic reasoning and data. Nevertheless, once an objective has been formulated through a political or negotiation process, economics can illuminate the most cost-effective ways to meet that objective.

Conclusions This chapter considered some theoretical ideas about the interaction of science, politics and economics and some recommendations for improvement were suggested. Survey data reflecting the views of natural scientists, largely from the industrialized countries were collected. The results demonstrate the need for change on a broad level in the interaction between science and politics and also in the way economic analysis is used. While this discussion focused on the case of climate change and the IPCC, the recommendations are not restricted to climate change negotiations. They apply



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equally to other negotiations involving the international and national environments and other science-intensive issues.

Appendix Text of Electronic Mail Survey 1. What do you consider as the most important impediment(s) to more profound international consensus/agreement on reduction targets for greenhouse gases on the global level? 2. Do you consider natural sciences or social sciences (in particular economics) more important in terms of delivering input for negotiations on climate change (please indicate selected option)? (a) NATURAL science MORE important than SOCIAL science (b) SOCIAL science MORE important than NATURAL science (c) NATURAL and SOCIAL science of equal importance 3. Do you consider the economic concept ‘Cost Benefit Analysis’ as an appropriate tool to use in climate change (yes or no)? 4. Do you consider the economic concept of ‘Discounting’ of future costs and benefits over generations as an appropriate tool to use in climate change (yes or no)? 5. Should economic analysis be applied to set the global CO2 concentration goals (yes or no)? 6. Should economic analysis be used to decide which instrument (tax, trading program etc.) to choose to attain defined greenhouse gas (reduction) targets (yes or no)? 7. Do you believe science is free of value judgments and political interest (yes or no)? 8. Do you believe scientific evidence used in environmental treaty negotiation in general is value-free and used in a non-political way (yes or no)? 9. Do you see a need for increased scientific cooperation and interdisciplinary work in particular between economics and natural scientists (yes or no)? 10. Do you think politicians and climate change negotiators take scientific evidence found by you and other IPCC members sufficiently into account in the negotiation process (yes or no)? 11. Do you think a more even distribution of scientific know-how around the globe instead of the current concentration of expertise in the industrialized world would simplify environmental treaty-making processes (yes or no)? 12. Do you think locating internationally renowned research institutes (for example, an IPCC technical support unit) in developing countries would


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13. 14. 15. 16.

promote global agreement in environmental-treaty making processes (yes or no)? What is your best guess about the share of IPCC scientists representing FCCC Annex II countries (in %)? Please indicate your nationality. Please indicate your scientific discipline. Would you like to receive the results of this survey (yes or no)?

Notes 1. The position of the United States underwent a change at the COP-2 meeting in Geneva in July 1996. The U.S. delegation called for the first time to seek firm reduction targets and timetables to be negotiated as early as at the COP-3 meeting in Kyoto, Japan, in 1997. This fact does not substantially change the argument I make in this chapter. 2. For a detailed technical discussion of discounting in the context of climate change and some alternatives see Rothenberg (1993a, 1993b). 3. For a discussion of the reporting requirements in the context of European Union countries see Subak (1996). 4. I have tried to incorporate all the overlaps (people active in more than one Working Group or as both contributors and reviewers). Several overlaps have been detected—therefore numbers do not sum up in the total. Nevertheless the figures have to be viewed with a certain margin of error for which I take responsibility. 5. Developed countries listed in the FCCC in Annex II comprise basically all industrialized countries in Western Europe as well as the United States, Canada, Australia, New Zealand and Japan. 6. Transition economies are the countries listed in Annex I only but not in Annex II of the Convention. The group comprises the Russian Federation and the transition economies in Central and Eastern Europe. 7. This category is made up of IPCC representatives from Albania and Yugoslavia as well as people from international organizations (FAO, UNEP) and environmental groups that could not have been categorized in any other group because of a lack of data about nationality. 8. Various respondents did not stick to the proposed answer format of yes or no, so all answers that were not fully conclusive in one or another direction were coded as “yes, but / no, but.” 9. The total has been generated by weighing the answers: no with 1, yes with 2, and all other answers with 1.5. So the total is the arithmetic mean of the answers. Hence a number greater than 1.5 in the total column indicates a rather positive attitude of respondents to the factor in question, while a number smaller than 1.5 indicates a rather negative stance. 10. This value has been generated by multiplying the total values in each column with the respective weights, adding them all up and dividing them by the number of answers. 11. See note 10. 12. See note 10. 13. Young and Demko (1996) raise the issue in a general setting by stating that “the effectiveness of international environmental regimes depends . . . on coherent and widely shared premises or systems of thought about the problems to be solved and appropriate ways to solve them” (p. 233).



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14. Joint Implementation or Activities Implemented Jointly (AIJ) links reduction of carbon dioxide emissions to cost analysis. Emission reductions are cheapest in developing countries, so under this proposal one would see reductions in developing countries financed by companies from industrialized countries. A detailed discussion can be found in Jepma (1995). 15. A similar direction is expressed by Tickell (1996) who suggests “environment should be part of every discipline.” 16. German for “Wired Thinking.” 17. This is at least correct for Western Europe. 18. For an essay that highlights economists’ thinking very well see Schelling (1992). For an alternative view see Greer (1995). 19. Holdren does not blame economics but the media for this situation. 20. Holdren (1996) puts forward an interesting criticism of the cost-benefit analysis of Nordhaus (1994b). In short, he states that the analysis assumes linear responses and does not account for the possibility of a critical threshold of atmospheric carbon dioxide concentration, below which consequences of climate change might be less severe than above. So the Nordhaus analysis looks at only two options (stabilizing the atmospheric concentration or doing nothing) although there are more than two possibilities to consider. 21. Two examples: Areas closer to the poles that will receive more warming will gain in increased agricultural areas. Small islands in the Pacific might vanish because of a rising sea level. 22. For those interested in the discussion on possible instruments in climate change policy, see OECD (1993) as well as Barrett and others (1995). 23. The use of tradable sulfur permits was suggested by economists working for the Environmental Defense Fund.

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Y CHAPTER SEVEN

PROMOTING NORTH-SOUTH NGO COLLABORATION IN ENVIRONMENTAL NEGOTIATIONS The Role of U.S. Foundations Wendy Gay Vanasselt

he need to find new creative ways to forge stronger international environmental agreements grows more urgent with each passing year. Private U.S. philanthropies have both the potential and the means to help meet this need by strengthening the role of nongovernmental organizations (NGOs) in international environmental negotiations.1 Foundations can use their resources (both monetary and institutional) to facilitate alliances between Northern and Southern NGOs. Such an effort could help motivate political action, gain the support of influential institutions, and redefine issues in ways that mitigate ideological chasms between the developing and the developed world. Ambassador Razali Ismail, President of the General Assembly, declared to the United Nations Environment Program in February 1997 that “Agenda 21 . . . will only bring about sustainable equitable and ecologically-sound development if we can break out of the North-South schism . . . the real challenge is to reshape North-South relations” (Internet: Earth Negotiations Bulletin Home Page, Oct. 19, 1997). As nations map action plans to preserve the Earth’s environment, negotiations are routinely derailed by battles between the wealthy, industrialized countries of the North and the poor, less-developed countries of the South.2 Inequitable economic relations, the population-versus-consumption debate, conflicting notions of development and responsibility, and other conceptual and ideological differences can divide the negotiators even before the primary environmental issue at hand is addressed.

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Nongovernmental organizations have the potential to bridge this schism and transcend political challenges that governments find insurmountable. Crossborder NGO networks have opened up unprecedented ways for citizen groups to influence governments and mobilize international pressure for action. For example, Northern and Southern NGOs concerned with health established the International Baby Food Action Network and Health Action International to expose and combat unethical practices by manufacturers in their marketing of baby foods and pharmaceuticals. U.N. agencies introduced international codes of conduct and controls as a result (Clark, 1991, pp. 6–7). The combined efforts of NGOs in Brazil, the United States, Europe, and developing countries persuaded the World Bank to stop funding a road-building and resettlement scheme which was destroying a large tract of the Amazon (Clark, 1991, p. 7). During the United Nations Conference on Environment and Development (UNCED), cooperation yielded powerful lobbying and joint statements on key issues. Northern and Southern NGOs could have a profound impact on international environmental negotiations, but they lack the resources, technical support, and guidance necessary to work together, act strategically, and play a substantive role in the negotiations processes. Traditional sources of support for NGOs active in the international policy sphere are government agencies, international organizations, and multilateral donors. However, foundations are precisely the organizations that can—and should—help form and shape North-South NGO alliances.3 Foundations are free of dependency on other institutions, markets, or constituencies, and therefore can take a long view and bring a competent and objective approach to the search for solutions to complex problems. As financially secure intermediaries and activators for others, the impact of foundations can be powerful and long lasting. They can move comfortably between a wide variety of actors and serve as vehicles for institutions to work together in the negotiations process. Unfortunately, there is a gap between potentiality and actuality. Some of the largest U.S. philanthropies, notably Ford, MacArthur, W. Alton Jones, Kellogg, and Charles Stewart Mott foundations, the Rockefeller philanthropies, Pew Charitable Trusts, and the German Marshall Fund, are committed to finding creative solutions to global environmental problems and to fostering international dialogues. However, most provide occasional institutional support rather than developing multifaceted programs to deal with the substance of cross-boundary environmental issues. Few are actively shaping global alliances specifically to forge stronger international agreements. First, this chapter discusses the benefits of foundations playing a larger role in promoting North-South NGO cooperation on international environmental issues. Second, it outlines obstacles to their greater involvement. Third, it

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proposes several ways in which these influential institutions might facilitate better international standards for environmental behavior via the NGO sector.

The Merits of North-South NGO Alliances The discrepancy between the fixed geography of states and the nonterritorial nature of today’s environmental problems make solutions that are based on NorthSouth cooperation and NGOs increasingly important. Climate change, acid rain, and pressures on shared water resources are all examples of global commons issues that state sovereignty alone cannot alleviate. Correspondingly, nation-states may not be the natural problem-solving unit. As the desire to protect one’s own national environment fuels the diplomacy process, treaty making is often plagued by lowest-common-denominator and slowest-boat syndromes.4 Political borders and electorates motivate and define states’ concerns. Self-interest and protocol limit negotiators’ ability to create value and generate options and packages that increase benefits to all parties. Nations with different degrees of interest and power can complicate dispute resolution. Some conflicts simply are not ready for official negotiation due to previously troubled relationships between governments. As the Director of International Affairs at the Kettering Foundation observed, some conflicts involve “relationships that can only be changed when human beings probe the roots of conflict, understand the historical grievances that perpetuate animosity and begin to think creatively of how parties involved can overcome a violent past and move toward peaceful relationships” (quoted in Mawlawi, 1993, pp. 26–27). Unlike official government negotiators, NGOs may share dedication to goals that transcend narrow national or sectoral interests and the historically adversarial North-South relations. NGOs may be better able to understand and respect each other’s political, economic, and cultural contexts and institutional constraints. For example, NGO alliances have been able to reduce pesticide hazards and promote sustainable agriculture alternatives, despite the fact that many Northern countries are major pesticide exporters and Southern countries provide a substantial and growing pesticide market. Another advantage is that many NGOs are driven by missions based on the concepts of openness to mutual learning; respect and equality; a commitment to collaboration; and transparency or reciprocal accountability. And, of course, NGOs are increasingly influential. For example, NGO pressure forced the United States and Mexico to include environmental and labor concerns in the North American Free Trade Agreement (NAFTA) (Mathews, 1997, p. 11). NGOs’ influence reaches behind other states’ borders, forcing governments

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to concern themselves more than ever with public opinion in other countries, even on matters that have traditionally been handled strictly between governments. Issues that would reap substantial benefits from North-South NGO cooperation include “flow of resources” questions (such as attempts to address the consumption-versus-population debate through international regimes) and negotiations involving very different costs and stakes for industrialized and industrializing countries (climate change, forestry, intellectual property rights). Issues such as nuclear weapons and radioactive sitings, in which Northern states are perceived as having centralized power, also polarize discussions among nation- states and might advance further and faster if NGOs formed constructive alliances.

The Ideal NGO Alliance Global North-South linkages could tremendously leverage NGOs’ clout and potential to do good in the international policy arena. Ideally, foundations would enhance NGOs’ ability to arrive at consensus among themselves prior to involvement with the treaty makers and to bolster the substantive recommendations provided by NGOs during the negotiation process. “Nothing is worse for negotiators,” says Charles H.W. Foster, former president of the W. Alton Jones Foundation, “than having their special interests in disarray at the bargaining table” (personal communication, Nov. 8, 1997). Allied North-South NGOs can have a heightened ability to identify common needs, unify platforms around shared ideology, carry out valuable issue research, disseminate the findings effectively, and democratize information. The alliance could also give NGOs a stronger voice in the public and governmental arenas. Armed with a united message and innovative ideas, NGOs could gain greater acceptance and respect for their place at decision-making forums. Foundations should not provide grants simply to facilitate the physical presence of NGOs at working groups and treaty-making sessions. Nor should foundations build or support an alliance that only has the goal of protesting, posturing, and adding more rhetoric and obfuscation to the negotiators’ work. Sometimes united opposition (to a lowest-common-denominator outcome, for example) may be essential, but confrontation should not be the dominating purpose of the alliance. As Foster commented, “The current practice of ‘them and us’ as illustrated by the ‘shadow’ NGO event at Rio is hardly an approach foundations should be asked to encourage” (personal communication, Nov. 8, 1997). There are several promising models of North-South cooperation and dialogues. The Keystone International Dialogue Series on Plant Genetic Resources, conducted under wholly independent NGO auspices, built consensus among all

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concerned parties (WRI, IUCN, UNEP, 1992, p. 167). Although not limited to NGOs, the dialogues held under the auspices of the Global Biodiversity Forum present a model based in part on the premise that a successful Biodiversity Convention requires broad-based discussion of key issues; consensus was sought but not forced (WRI, 1994, p. 162). The Philippine Development Forum, a network of U.S.-based individuals and organizations, works in partnership with a broad range of Philippine NGOs to promote awareness and facilitate dialogue on equitable and sustainable development in the Philippines. NGOs from the North and South participate as equals, and the network links groups across the environmental, development, religious, and human rights communities (WRI, IUCN, UNEP, 1992, p. 166).

Obstacles to Building North-South NGO Alliances Many worldwide NGO alliances form gradually and haphazardly. In a 1994 paper, Margaret Keck and Kathryn Sikkink note that international issue networks often emerge when “a large number of differently situated international and domestic NGOs become acquainted over a considerable period of time, and develop similar or at least interrelated world views. When the more visionary [ participants] proposed strategies to transform intractable problems into ones amenable to political action, this potential transformed into an issue network” (Keck and Sikkink, 1994, p. 150). Often the networks emerge from conferences in which NGOs are pressuring for an international forum. The Philippine Development Forum, for example, started as a one-time event and eventually grew into an ongoing network. While gradual informal cooperation can be beneficial, a proactive, strategic, sustained alliance-building effort leading up to the formal negotiations of a global environmental issue holds greater potential. However, such coordinated, wellprepared partnerships with specific targets, goals, and deadlines will not form without financial and institutional support. Many of the same problems that hampered meaningful NGO interaction during UNCED can frustrate North-South coalition building. In Rio, participants found that they needed designated meeting spaces; mechanisms and incentives for regular discussions; interpretation services; better information dissemination systems; travel funds; and training on how to be effective advocates and negotiators. Assistance working with those who represented different cultures was also an important factor (Kakabadse and Burns, 1994). Another challenge to a North-South NGO collaboration is that the relationship must overcome some mistrust and paternalism; Northern NGOs can fall into the trap of preaching to their Southern counterparts. In the same vein,

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effective partnerships may require that NGOs from both sides of the divide alter their internal structures to replicate the values they espouse, think about whom they represent, and commit to contributing to both national and international agendas. NGOs also need to recognize heterogeneous cultures and respect different participatory styles. Divergent interests and views about environmental issues complicate the problems faced in building genuine partnerships within the North and South. Northern NGOs are not homogeneous, nor are Southern NGOs a like-minded contingent; the task is greater than simply bringing the two sides together. NGOs spring from different backgrounds and traditions and may operate with very different mentalities. In Japan, for example, many modern NGOs emerge from a tradition of antigovernment activity, while in some Catholic countries such as Italy voluntary activity has grown almost entirely out of the church and from an alternative, antistatist mentality, to which leftist antigovernment views were later added (Smillie, 1993, p. 161). Plus, there are groups on both sides with sympathy toward the other. Fortunately, those cross-regional sympathies are at least as promising as the sometimes splintered interests within the North and South are problematic.

The Philanthropic Community’s Role A foundation is a marketplace for information and ideas. Foundation officers have the ability to act upon opportunities that can benefit numerous groups in the environmental field. They are also in a unique position to assemble advisors, commission research, and attract the cooperation of other relevant institutions (Nielsen, 1985, p. 428). Theodore Smith, Executive Director of The Kendall Foundation, reiterated that foundations’ special strength lies in convening people on neutral territory (personal communication, Nov. 14, 1997). However, he questioned how often, and under what circumstances, foundations do take on a convening role with regard to global environmental policies, negotiations, and NGOs, and what level of consistent long-term support they provide. Several foundations, including the Ford, MacArthur, Kellogg, Rockefeller, and Charles Stewart Mott foundations, have devoted many years and substantial resources to international environmental issues, cooperation, and institutional capacity building.5 For example, the Rockefeller philanthropies’ programs emphasize global interdependence and constitute “a commitment to help define and pursue a path toward environmentally sustainable development consistent with individual rights and a more equitable sharing of the world’s resources.”

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A principal part of the Rockefeller Brothers Fund’s grant-making program is its One World theme, consisting of two major components: globally-sustainable resource use and world security. The fund also emphasizes support for “a vital nonprofit sector, both nationally and internationally.” Similarly, the Charles Stewart Mott Foundation’s Special Initiatives Program gives priority to projects that “test or apply innovative consensus-building approaches to solving environmental problems . . . and address urgent and time-specific environmental threats or opportunities, especially those related to national or global policies.” Some of the major forces in environmental philanthropy care deeply about particular issues. The Pew Charitable Trusts promotes public policies that protect the global atmosphere, reduce the production and use of highly persistent toxic chemicals, and protect forests and marine resources. The W. Alton Jones Foundation, a veteran player in the international environment field, has focused on biodiversity. Many of these foundations’ grants have an element of convening and networking NGOs; some offer useful models that could be expanded globally to benefit negotiations. For example, in 1997 the Rockefeller Brothers Fund promoted the exchange of information among NGOs in Eastern and Central Europe and the Newly Independent States via a grant to Voice International. The Charles Stewart Mott Foundation has funded a project on cross-border cooperation for toxic pollution prevention and control operated by the Texas Center for Policy Studies, which seeks to reinforce ties between citizen’s organizations on either side of the border. As a first step, the Center established a binational network on the environment. Such cross-border initiatives might be scaled up to a multiregional and global level, with a focus on negotiations and the provision of more strategic institutional support. Other relevant grants and program activities emphasize institutional and individual development to benefit environmental issues worldwide. An example is The Rockefeller Foundation’s Leadership for Environment and Development Program which brings together individuals from academia, media, government, and nongovernmental organizations in a global forum for 16 weeks of multidisciplinary and multisectoral training in sustainable development problem diagnosis and integrated problem solving. Graduates of the program remain linked in an ongoing dialogue via a global electronic information network. Foundations have brought NGOs together around specific negotiations events such as the Rio Earth Summit and the Cairo Conference on Population. Both the Ford and Rockefeller foundations funded travel costs to ensure the attendance of Third World NGO representatives at United Nation preparatory meetings and the planning sessions for Rio. Ford Foundation funding enabled women’s groups in the United States, Africa, Asia, and Latin America to prepare for and attend the Beijing Conference, and also supported media training and publication

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and dissemination of press materials. The Charles Stewart Mott Foundation funded NGO participation in the Trade and Environment Committee meetings of the World Trade Organization. Sometimes foundations have supported issue-specific projects tangentially related to negotiations. For example, the W. Alton Jones Foundation and the Wallace Global Fund provided support for the World Resources Institute’s research and policy analyses on climate change and environmentally beneficial taxes— grants which included the participation of WRI associates on negotiations working group panels. Another example is the Charles Stewart Mott Foundation’s provision of pass-through funds to the Center for International Environmental Law, enabling it to make mini-grants to Chilean organizations working on environmental issues related to free trade negotiations and the NAFTA. The above overview of foundation activities related to international environmental issues and negotiations is not based on a year-by-year assessment of grants made by all the major foundations. However, a few generalizations can be made about current grant making in this area. First, foundations most often convene people and NGOs in situations that do not involve differing points of view. As Theodore Smith noted, “The most typical situation is one in which the foundation knows that the NGOs share common ground, so they bring them together to strategize on how to beat the other guys” (personal communication, Nov. 14, 1997). He suspects that a far less likely meeting would be one in which NGOs with very different agendas were encouraged and supported in a conference, an element of the alliances proposed in this chapter. Second, the foundations tend to convene NGOs on a relatively small scale. They may provide grants to make possible a one-time meeting or conference, or to bring NGO representatives to a specific event. The geographic focus is also relatively narrow. As foundations often focus their programmatic resources on a select area of the world (for example, the German Marshall Fund mainly addresses environment and trade issues of importance to the United States and Europe), they may prefer to convene and assist communications and alliances between NGOs just in that region. Third, the foundations mainly provide money. Their involvement is limited to funding initiatives, not to planning, networking, and serving as a source of institutional guidance.

Obstacles to a Larger Foundation Role The outcome of an international negotiation can dramatically affect foundations’ success at promoting global sustainable development and equity. Therefore, one might expect foundations to be eager to work in this area. Yet relative to their total

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annual grant making, they are mainly nibbling at, rather than biting into the problems detailed here. Why? First, foundations will be unlikely to launch an alliance-building effort without being fully convinced by a plan that ensures that their participation can make a difference. Funding global alliance-building and negotiations work requires knowledge of an enormous range of issues (political, economic, management, enforcement, and cultural) in addition to the primary environmental problem. While the Ford Foundation has a staff of more than 100 people, philanthropies with a staff of only several individuals are the norm, making it quite a daunting task to build the staff and board capacity needed to feel comfortable funding or designing a complex new program of work. Furthermore, foundations may not recognize the substantive contributions that NGOs can make to negotiations, nor the merits of North-South linkages. Consider, too, the open-ended nature of supporting NGO work on negotiations. The time frame of commitment needed on the part of a foundation could be very long—years or even decades. Yet, as Janet Maughan, former Ford Foundation program officer observed, many funders operate on a cycle that is not appropriate to building collaborative efforts. “The one-year grant is a no-brainer,” she said (quoted in Cestero and Snow, 1997, p. 47). An example of this is that while foundations have funded climate change activities for years, and the climate change negotiations are far from over, foundations are now beginning to lose interest, perhaps seeking a trendier issue. Another negative from a foundation’s perspective is that making these alliances work could require as much technical and strategic support (setting up technology systems, organizing meetings, setting goals and strategy) as financial. Many foundations prefer programs that are relatively simple to conceive and carry out, requiring relatively limited depth of involvement. There are exceptions: for example, the Ford Foundation often sees problems in more comprehensive contextual terms, and as such is willing to fund programs that embrace many issues and invest substantial staff time and money in nurturing and initiating projects. Ford also accepts “controversy, criticism, and relatively high failure rates” (Nielsen, 1985, p. 422). Foundations also like quantifiable results and the means with which to gauge their impact. This may be incompatible with the concept of alliance building around environmental negotiations.6 For example, even if a convention yields an agreement, it will be difficult to assess the degree of impact of an NGO alliance. Assume that a foundation has expertise on a global environmental problem and is not intimidated by the complexities of the negotiations process. It might still be wrong to assume that a foundation has a position or a desired outcome in mind. For example, it is questionable that the Ford Foundation has an official

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position on the outcome of the climate change negotiations. Perhaps a few program officers do, but a shared staff and board vision is highly improbable. Without a position around which to structure a grant or resource-building program, there may be less motivation to launch a new program of work, such as bringing Northern and Southern NGOs together. Foundations generally fund activities and groups to get an outcome, not just to perpetuate a process. Finally, some foundations may be averse to taking actions that could be perceived as political. Since the 1960s, when there was a sustained Congressional attack on private foundations (Congress questioned their power and influence, a process which culminated in the 1969 Tax Reform Act), many foundations have feared taking too extreme a role in social activism and advocacy. And, as taxexempt public charities, they are barred by law from undertaking partisan activities.

Recommendations: New Foundation Approaches Franklin Thomas, former President of the Ford Foundation, said “I think of foundations as the research and development arm of a society. We’re the parts of the society that ought to be taking risks, developing new ideas, backing innovative people and institutions who are pushing new ideas, ideas that are designed to remove inequities, increase opportunities, and lead towards more harmonious relations, whether interpersonal or intergovernmental or globally” (Ford Foundation Home Page, Nov. 17, 1997). Thomas’s vision has not been fully recognized when applied to the area of international environmental negotiations because of some of the aforementioned challenges. The following strategies could bring us closer to a model for change that could ultimately bring about better decisions and action on global environmental problems. While currently funded efforts (mainly conferences, travel funds for NGOs, and research and policy analyses) are tremendously valuable, a more strategic and comprehensive philanthropic effort could yield effective alliances with defined goals and the ability to play a substantive role in the negotiations process.

Program of Research and Guidance for Foundations If, as Charles Foster states, the primary problem for a foundation lies in the numerous “unknowns” and the open-ended nature of funding NGO alliances for negotiations, one initial step might be to fund a research program on the merits of NGO

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participation in the negotiating processes generally, and North-South collaboration specifically. Case studies analyzing the outcomes of attempted North-South alliances and assessing what factors made (or failed to make) the relationship work could be the focus of this program. This effort, funded, managed, and published by a foundation or philanthropic “umbrella” group such as the Council on Foundations or the Environmental Grantmakers Association, could produce guidelines for grantmaking institutions interested in expanding or launching work in this area. The Council on Foundations may be a particularly promising vehicle for such an effort. Its “International Program” seeks to extend the field of international philanthropy and increase its effectiveness. One of its stated goals is to assist grant makers in practicing effective grant making across national borders through the provision of papers, recommendations, and conferences. Ideas, lessons, and structures might also be extrapolated from the Consultative Group on Biodiversity, which works with about 45 member foundations, 20 of which provide funds for conservation and development. (The group conducts educational seminars for funders who are trying to help preserve biodiversity, and many of the funders are beginning to embrace collaborative approaches.) This approach might be a valuable launching point for larger efforts. It certainly would be a specific project with a specific outcome, underway for a limited period of time, making it palatable to the funding community. However, while appealing in theory, in practice case studies and guidelines may not be a very effective way to influence foundation policy, let alone serve as a lever for change. Considering the need to move foundations to action, case studies may not catch the funding community’s attention or spur an investment of time and resources in negotiations alliances on a broad scale.

Emphasize North-South Links in Current Grants Because foundations already provide millions of dollars annually for international environmental efforts, they have significant influence over thousands of NGOs in both the North and the South. Rather than investing millions more in a new effort to build alliances, one easy solution might be to make a North-South link a top priority of projects proposed by the majority of their grantees. For example, the Ford Foundation could decide that a U.S. NGO proposing to research climate change policies might only qualify for funding if has research partners from a Southern country. However, this recommendation is only a small step and has several drawbacks. First, most of the major foundations already emphasize collaboration with NGOs in developing countries, and many NGOs already seek Southern or Northern

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partners as a way to leverage their impact. Second, emphasizing collaboration among two or three parties does not equate to, or lead to, a strategic consensusbuilding effort focused on producing solutions at negotiations conferences. Third, requiring NGOs to have several Southern or Northern partners as a precondition of a grant begins to overstep the bounds of fairness in capitalizing on foundation influence and could weaken the NGOs’ work in the process. As foundations generally receive many more requests for money than they can support, environmental groups may be tempted to modify their agendas too far to please the big funders who are demanding the formation of alliances. Or, the NGOs may simply form alliances in name only with little substantive action. Taken to the extreme, this approach could also create a select group of haves—big national and international groups that have the greatest ability to work transnationally— and have-nots—small groups that cannot break into the big funding sources because of stringent collaboration criteria.

A Foundation-Initiated Pilot Alliance A bold new approach would be for foundations to design jointly a system of test NGO interactions and networks around a negotiation in which overcoming the North-South divide will be key to achieving a sound, widely accepted agreement. This test case might be one in which NGOs already have some ability to deal with the problem collaboratively and to articulate shared strategies; such an advantage might increase the likelihood of initial success and project replicability. (The counterargument in favor of choosing an issue with larger NGO disagreement also has merit: it might be more meaningful for the purposes of learning.) A valuable test case for a foundation-crafted NGO linkage might focus on reducing unsustainable consumption patterns and related environmental degradation, a topic worthy of international attention and in need of creative approaches to negotiation. Consumption is a politically charged issue, divided along NorthSouth lines. UNCED acknowledged unsustainable consumption patterns in the North as a major threat to global development; meanwhile, fearful that achieving changes in consumption patterns will require a major international effort to redistribute the world’s resources, the North cites the potentially huge consumption demands in the South due to its high population growth rates. While politicians and decision makers seem to agree that changes are needed, they also seem to lack the political will to implement them. The various negotiations on major issues such as the debt burden of countries in the South and reforms in the international trade system have not changed the course of development that steadily widens the gap between the North and the South.

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Clearly NGOs will have an important role to play in the process of establishing an international action plan. NGOs worldwide have already challenged unsustainable development and launched numerous initiatives aimed at changing consumption patterns, but the need for coordinated action is paramount. Many environmental organizations in the North have focused narrowly on environmental protection without linking it to consumption patterns and development problems in the South, or have relied heavily on the assumption that technological innovations will make growth possible within acceptable environmental limits. NGOs in the South have increasingly challenged such a perspective and demanded that the unequal distribution of resources and the harmful effects of overconsumption be given more attention. To help NGOs find common ground and provide creative shared solutions to address this issue globally, a group of four to six foundations might pool funds for a three-year Consumption Negotiations Program. With contributions from each of $2–3 million a year, for a total of $12–18 million annually, a multifaceted, wellcoordinated effort would be possible. This is not an unrealistic proposal; the Ford Foundation’s endowment is more than $7 billion, and in 1995 alone, Ford awarded almost $300 million in grants (NewsHour Online Home Page, April 24, 1996). The MacArthur Foundation grants approximately $140 million annually, and the Rockefeller Foundation $100 million (Rockefeller and MacArthur foundation Home Pages, Nov. 16, 1997). An alliance and consensus-building effort could be managed under the auspices of a specially created formal or informal institutional or organizational entity, or an existing one. If the choice is to establish a new entity to manage the process, foundations should provide sufficient funds to support a few part-time staff people, perhaps one from each foundation, who can facilitate this effort. They would plan the alliance’s agenda, coordinate, network, and select participants, set meetings, mediate disputes, and design communication technologies and systems. A rough model, on a national scale, is the Energy Foundation, which was created in 1991 by the staffs and boards of the MacArthur Foundation, the Pew Charitable Trusts, the Rockefeller Foundation and the Joyce-Mertz Gilmore Foundation. Its mission is to assist the United States transition to a sustainable energy future. It serves primarily as a grant maker, but also convenes workshops, commissions papers, and takes other direct initiatives. The foundation has an annual budget of $11.7 million a year (Energy Foundation Home Page, March 4, 1998). Alternatively, a group of foundations could pool funds, then funnel them through an existing, relatively formal, NGO association to manage and coordinate the day-to-day work. For example, the Environmental Liaison Centre or the Center for Our Common Future might facilitate the dialogues and consensus building process. The Keystone Center, known for being a neutral NGO, with

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expertise in environmental negotiations, might also be a good choice to convene and manage the process and report to the foundations. Such an approach would reduce the need for foundation staff experience and high management and time commitments, making the project less demanding of the foundations. It would speak to the fact that in the best partnerships, the community itself—in this case the NGOs—makes the basic decisions. The removal of outside leadership and bureaucracy may create a greater sense of NGO investment and concern. Using a network as the coordinating body also alleviates the danger that some NGOs will feel strong-armed by funders into participating, so as not to jeopardize their chances of receiving grants for other projects. The negative side of using existing networks is that the foundations can exercise less control and will have to respect the umbrella NGO’s agenda. Another concern is that a non-foundation coordinator may tend to select certain kinds of NGOs (large, national or small, grassroots) with whom it has the best relationships and shares similar views, rather than a broad mix. It also may lack the clout needed to secure participants and the skills necessary to nurture a process. However, foundation staff members have the advantage of trafficking in some of the best ideas, so they can easily offer knowledge and contacts, making them some of the best people to bring a broad vision to the alliance-building effort. Another option is to have a North-South alliance-building effort carried out under the United Nations (for example through the United Nations NonGovernmental Liaison Service) or multilateral donors, rather than foundation auspices. There are several problems with this. One is that there is a perception that U.N. organizations are plagued by bureaucracy, which may make NGOs reluctant to participate in a U.N.-managed alliance. Second, independent foundations have the integrity, autonomy, and freedom to take advocacy positions, but the United Nations does not. Third, neither multilateral donors nor the United Nations are likely to be creative risk-takers, which could be important—particularly if there is a need to reshape or redirect the effort midstream to maximize its likelihood of success. (One way to get the advantages offered by both kinds of institutions might be to have Ted Turner’s new foundation, funded with $100 million a year for ten years and intended to benefit the United Nations, organize and manage a North-South NGO alliance-building process.) The question becomes which structural entity can most effectively coordinate the partnership. The entity must be able to provide supportive leadership and spark motivation; have strong capacity to facilitate communication; gain mutual trust; and resolve tensions through negotiation based on sensitivity to partners’ interests. No matter how administered, the foundations should commit to a program of multiyear support. This should not be an ad hoc alliance pulled together and

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active only in the months shortly before formal negotiations. An example of the impacts possible with advance planning, including an early start at developing strategies and identifying stakeholders, is the Center for International Environmental Law’s help in organizing a coalition of island states prior to the climate change negotiations. The Center provided the coalition with legal and scientific support and technical and economic resources, enabling participants to arrive at meetings prepared to develop common positions and strategies (McMahon, 1993). By contrast, there was little coordination among the environmental NGOs as a whole prior to and between the first climate change convention negotiation sessions. Some meetings, at which NGOs hastily agreed upon strategies, were scheduled a day before sessions began. As a result, environmental NGO strategies were de facto led by the government agenda and their influence on the final treaty was minimal (McMahon, 1993). Convening a series of meetings in different parts of the world for groups of NGOs from the North and South is an essential part of this recommendation. These meetings might first be coordinated on a loose regional basis, in groups representing less than a dozen countries. However, unlike the original divisions in the United Nations Conference on Trade and Development (four groups with limited diversity; for example, one was Latin America, another combined Western Europe, North America, and Japan) each of the groups in this approach will have a NorthSouth balance, and balance in terms of national and grassroots representation. Half a dozen regional groups could each meet physically perhaps three times in the first year of work, with increasing face-to-face interaction closer to target negotiation dates. Each group might be led by two individuals from the region, one from a Northern and one from a Southern NGO. Facilitators and translators should be provided at meetings, as well as training in constructive participation and effective advocacy. Two important elements of the NGO mix will be regional diversity and the commitment of participants to at least a three-year period of work. This would be a chance to build relationships in a nonadversarial climate, without financial constraints severely limiting who can participate. The idea behind remaining small and regional in the first year would be to keep core groups from becoming unmanageable and to find some common ground and strategies. This would prevent situations like the UNCED PrepCom meetings, of which participants noted that “the coordination and focus of environmental NGO lobbying became progressively worse as the numbers of NGOs increased” and that by the fourth meeting their “numbers were unmanageable, hampering agreement on almost any issue” (McMahon, 1993). Another important element of this new foundation approach would be the provision of communications technology to all alliance members. Technology is

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one of the reasons for NGOs’ new clout in the national and international arenas. It allows for fast information sharing, which, in turn, binds network members together and is essential for effectiveness. For example, the Internet might be used to distribute ideas and meet on-line between official meetings. It would also provide a way to share updates with NGOs that are not part of the official alliance, but are interested in and able to aid the alliance’s work. Useful models already exist. Many foundations are already helping nonprofits use technology as a powerfully organizing force for groups scattered around the globe. For example, a consortium of groups, including the Council on Foundations and the Forum of Regional Associations of Grantmakers, has devised a plan to link 75,000 nonprofits using video conferences, the Internet, and other tools. This work is intended to improve charities’ ability to share information and respond quickly to public policy proposals that could affect them and the people they serve (Hall, 1996, p. 9). Another model is the Sacred Earth Network’s Environmental Telecommunication Project, a computer network of more than 400 environmentalists spanning more than 100 cities in the former Soviet republics (Sacred Earth Network Home Page, March 4, 1998). Other valuable ideas which could be elements of this approach might be culled from the MacArthur Foundation’s International Governance and Civil Society Program which provided funding for the Common Security Forum, a research network of scholars and policy advisors exploring new ways of thinking about global security. From the foundations’ perspective, one advantage of a North-South NGO alliance and consensus-building effort is that it need not yield a specific outcome. The foundations do not have to establish that they will gain a commitment from all NGOs to push for proposal x or idea y to achieve position z. Rather, the intent would be to help NGO members discuss common issues and areas in which interests diverge, and to organize themselves through a common spokesperson. This approach might also encourage the participation of Southern NGOs; presenting the alliance-building effort as a process in which foundations have no hand in directing participants to a certain conclusion would help alleviate possible suspicions that a project funded by a Northern foundation might have a Northern bias. Admittedly, any foundation effort to facilitate alliances between Northern and Southern NGOs around negotiations will be difficult to evaluate. The problem is that a network is not a single actor, but a multiple actor, making its influence particularly difficult to trace (Keck and Sikkink, 1994, p. 20). Nevertheless, some short-term measures of success are available, including whether NGOs gain a heightened ability to play a constructive rather than purely confrontational role (for example, by presenting North-South proposals and research to the official participants) and the sustainability of an alliance over a multiyear period. Other evaluations could come from the NGO participants, who could reflect on lessons

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learned from their experience and on what contacts and ideas they are still utilizing in other negotiations and policy efforts. A drawback to this whole recommendation is the large demand, beyond funding, that it places on foundations. While it capitalizes on foundations’ stature and ability to bring people to the table, to some degree it borders on telling NGOs how to do their work. Says Steve Toben of the William and Flora Hewlett Foundation, “There’s a danger of meddling too much, but there’s a power that, appropriately exercised, can be constructive. And we can provide resources. First and foremost, our job is to dispense resources. We can’t let ourselves get overly involved. I don’t think that’s healthy” (Cestero and Snow, 1997).

Conclusions This chapter has presented three recommendations for ways that foundations could help spark and fuel an organized and cohesive network of Northern and Southern NGOs. No doubt there are many more ways that foundations could support and motivate such an alliance. The key point is that, with adequate and strategic assistance, there is a tremendous opportunity to apply NGOs’ and foundations’ special abilities and knowledge to the search for solutions to global environmental disputes, and to achieve stronger international agreements in the long run. Ideally, a foundation-sponsored North-South alliance would achieve broad consensus and creative proposals for solutions to the most pressing global environmental issues. However, even if an alliance did not achieve a single coherent position at the end of the project, or if targeted negotiations stalled or failed to achieve the desired environmental agreement, long-lasting benefits are still possible. First, any consensus-building effort that focuses on networking also will yield institutional capacity for NGOs—capacity that will serve them well in their work on other issues. Second, southern NGOs will be strengthened and legitimized, and the process will help meet their long-standing desire for informational and technical resources. Third, South-South cooperation could be an auxiliary benefit. Fourth, if NGOs can play even a small role in reshaping North-South relations, it might make the next negotiations more successful. Finally, carving a larger role for foundations in networking North-South NGOs around global environmental issues would be timely. It could translate the currently popular concept of “civil investing” to the international arena. Gayle Williams Donnelly, Executive Director of the Mary Reynolds Babcock Foundation, provides a good definition of civil investing: “the recognition that foundations have the capacity to convene people who are doing civic work in their communities so that they may learn from each other and support each other” (quoted in Zehr,

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1996, p. 22). However, as Charles Hamilton, Director of the J. M. Kaplan Fund also notes, civil investing “involves the realization that philanthropy, individuals, and communities have the power to make things work. Government can’t do everything” (Zehr, 1996, p. 22). That logic is applicable to the environmental negotiations arena, too.

Notes 1. In this chapter, nongovernmental organization or NGO refers to the private nonprofit sector, including grassroots, national, and international organizations. Philanthropies refers specifically to the subset of the NGO sector whose primary activity is to provide funding to achieve their programmatic goals. 2. For a good explanation of the concept of the North-South divide, see Adil Najam “International Environmental Negotiation: A Strategy for the South,” (Chapter Three in this volume). 3. The U.S. foundations need to take the lead. Many already support NGOs worldwide, and the United States is particularly well endowed with foundations. 4. For a more detailed discussion of these syndromes, see Peter Sand, World Resources (1990). 5. All the examples of foundation programs and grants cited in this section were culled from annual reports, the foundations’ Internet web pages, and personal knowledge. 6. Not all foundation grants adhere to this logic; the willingness of foundations to fund travel costs for NGO representatives to attend U.N. meetings certainly does not guarantee a quantifiable success. However, such grants are usually relatively small, short-term financial commitments —quite different from the kind needed for large-scale alliance building.


Y CHAPTER EIGHT

THE ROLE OF THE MEDIA IN ENVIRONMENTAL ISSUES Newspaper Coverage in Four Countries Anja Kollmuss

he media plays a crucial role in the political process. It informs and educates the public and policy makers about the issues and serves in many instances as an intermediary between scientists and policy makers. The media also influences the international environmental treaty-making system. By deciding which issues get covered and which are omitted, the media not only shapes the way an issue is perceived, but also has considerable influence over the way priorities are set. The first two parts of this chapter examine the newspaper coverage of climate change in four different countries. The last part of the chapter explores how media coverage of climate change in particular and environmental issues in general could be improved. In the course of this research several points became increasingly clear:

T

• The amount of coverage varies greatly from country to country. The United Kingdom has almost twice as much coverage on the issue as Germany and the United States. • The science of climate change is portrayed, especially in more conservative newspapers, as a debate between environmentalists and climate skeptics. • Many scientific articles do not handle scientific uncertainty well. Issues are usually not put into context and the scientific uncertainty is either not mentioned at all or portrayed as a two-sided argument between skeptics and believers.

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The Role of the Media in Environmental Issues

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• Conservative newspapers in all examined countries quote climate skeptics more frequently and are more hesitant to acknowledge climate change as being a serious problem. • The politics of climate change (that is the international negotiations) are covered insufficiently or not at all. • Climate change articles rarely ever make the front page (8 out of 176 articles). • Articles about mitigation and adaptation strategies are rare but more frequent in left-leaning newspapers. • Issues of equity are only mentioned in the two most liberal newspapers (the Guardian, Tages–Zeitung). • Feature articles are very rare (only 3 out of 176 articles). • Most articles are written following the release of a new study or an event (political meeting, conference, etc.). • The tone of newspaper coverage varies greatly between liberal and conservative newspapers. • Liberal newspapers tend to openly advocate taking action on climate change, whereas conservative newspapers use seemingly more neutral, dispassionate language. • The distinction between news articles and opinion pieces is more blurred in European newspapers, especially the more liberal ones.

Design and Scope of the Analysis The study includes an in-depth content analysis of the media coverage of climate change issues during a period of six months (9/7/99–3/7/00). This is a somewhat arbitrary period that was chosen because it is very recent and because during that period the “Parties to the Conference” met in Bonn. Newspaper coverage in the United States, the United Kingdom, Germany, and India was analyzed using LexisNexis. Three newspapers were chosen for each country. Each newspaper was among the most important in its country and represented a broad political spectrum to the best degree possible. It is important to point out that this study can only show tendencies. It does not try to attempt to give a full portrayal of the media coverage in each of the examined countries. Also, the scales developed to code the newspaper articles are to some extent subjective. If this were to be a truly scientific study, several people would have had to code the newspaper articles and average their scores to yield a final figure.


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The study focuses on what the British Audit Bureau of Circulations calls National Morning Quality: serious, non-tabloid newspapers. It would be interesting to examine the newspapers categorized as “National Morning Popular” since these newspapers reach audiences four to ten times larger than the more sophisticated newspapers (for example the British Sun has a circulation of 3.6 million compared to 0.4 million for the Guardian). The United States The United States is the largest emitter of greenhouse gases (1.45 billion tons of Carbon per year) and has also the highest per capita emissions (5.4 tons of Carbon per year). The United States has ratified the U.N. Convention on Climate Change and has signed but not ratified the Kyoto protocol. Under the Kyoto agreement, the United States would have to cut its emissions by 7 percent below 1990 levels. Yet the U.S. Senate, dominated by Republicans, has been staunchly opposed to the implementation of the Kyoto agreement. The Clinton administration has expressed repeated concern about the threat of climate change but has not taken any strong actions. U.S. greenhouse gases emissions have been steadily increasing and are now, according to the U.S. EPA, 11.5 percent higher than in 1990. The United States is part of the Umbrella Group of industrialized countries that has been pushing for the economic mechanisms that include emissions trading (ET), joint implementation ( JI), and the clean development mechanism (CDM). These three emissions trading schemes would allow a nation to buy greenhouse gases reductions from other countries or to pay for emissions reductions that are realized in other nations. The rationale behind these trading mechanisms is that they are more cost effective. Developing countries, and to some extent the EU, have been worried that these mechanisms might be misused by rich countries (that is, the United States) as a way to avoid domestic action. The newspapers that have been studied for the United States include the New York Times, the Washington Post, and the Los Angeles Times. All three newspapers are centrist and do not represent a wide political spectrum.1 The New York Times is without question the most important and influential newspaper in the United States. Its focus is very general. Politically, the New York Times has become more conservative during the last decade. The Washington Post has a strong focus on politics. The Los Angeles Times is the largest newspaper in California. Like the New York Times, it is a general newspaper without a specific focus. To ensure a good geographical distribution, I would have liked to include the Chicago Tribune, a paper from the midwest. However, it was not available on LexisNexis nor was the very influential national daily, the Wall Street Journal. It is difficult and somewhat subjective to rank the three papers on a political scale. Politically, there is not much



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difference between them. Yet, I ranked the New York Times as the most conservative, followed by the Washington Post, and third, the Los Angeles Times. The United Kingdom The United Kingdom emits 0.15 billion tons of Carbon per year (2.6 tons of Carbon per capita, per year.) As has the United States, the United Kingdom has ratified the U.N. Convention on Climate Change and signed the Kyoto agreement but not yet ratified it. Under the Kyoto agreement, the United Kingdom would have to lower its greenhouse gas emissions 12 percent below 1990 levels. The United Kingdom currently has a social-democrat majority in the government. The government had announced last year that it would set a goal of reducing its greenhouse gas emissions by 20 percent below 1990 levels. The government introduced a climate change levy and some other measures to meet that goal. Yet, under considerable pressure from industry, it looks now like the government will reduce its 20 percent commitment to a 20 percent reduction goal. Nevertheless, political opposition to the Kyoto agreement seems much less strong than in the United States. There is more a discussion about how than should we or should we not. The United Kingdom and Germany are part of the European Union, which has been pushing for limitations on how much emission reduction a country can buy from other nations. The European Union has also been pushing for the Kyoto ratification by 2002. In April of 2000, a meeting of the environmental ministers from the world’s eight leading industrialized nations ended without an agreement on a deadline for ratifying the Kyoto agreement. The European Union and Japan want the treaty ratified by 2002, while the US and Canada resisted any specific timeframe for ratification. The British newspapers included in this study include the Guardian (including the Sunday Observer, owned by the Guardian), The Times (including Sunday Times, which might be described politically as center right), the Daily Telegraph (including the Sunday Telegraph). The Guardian defines itself as “radical, left of centre.” It is one of the most influential newspapers in the UK. The Times is centrist whereas the Daily Telegraph is clearly conservative. Germany Germany emits 0.45 billion tons of Carbon per year (2.9 tons of Carbon per capita, per year). Like all other industrialized nations, Germany has signed the Kyoto agreement but has yet to ratify it. Germany has traditionally been a leader in advocating environmental protection. The Green Party became strong during


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the 1980s and since 1998 has formed the executive together with the social democrats. The Minister of the Exterior and the Minister of the Environment are from the Green Party. However, Germany has a very strong coal industry that has long been subsidized by the government. There are still many households in Germany that heat with coal and much of the nation’s electricity is produced by coal power plants. Nevertheless, greenhouse gas emissions have been decreasing over the last decade. According to Germany’s Second Report under the FCCC, CO2 emissions were reduced by 12 percent between 1990–1995. The following German newspapers were chosen: the Frankfurter Allgemeine Zeitung (FAZ), the Sueddeutsche, and the Tages-Zeitung (TAZ). The FAZ is considered to be conservative, the Sueddeutsche center left and the TAZ very left. The TAZ was chosen not so much because of its circulation (at 60,000, rather small) but to get a broad political spectrum. It is important to point out that in Europe newspapers tend to be much more outspoken about their political orientation than those in the United States. Very often the newspapers label themselves as conservative or left-wing. In the United States, only newspapers that are considered radical label themselves openly. India India is a large developing country which emits 0.29 billion tons of Carbon per year. As an Annex II county, it is not required to reduce its emissions in the first round of emissions reductions under the Kyoto agreement. Its per capita greenhouse gas emissions are 20 times less than the United States per capita emissions (0.27 tons per year). The only newspapers available on Lexus Nexus were The Statesman and The Hindu. The most important newspaper, The Times of India, and The Hindustan, could therefore not be used in this study. The Hindu is of special importance in the south of India, whereas The Statesman is stronger in the east of the country. The LexisNexis search revealed only two articles on climate change in The Statesman and four in The Hindu. Also, not all issues of The Statesman were available on LexisNexis. The Indian newspapers have been therefore excluded from the quantitative analysis of this paper. They are included in the qualitative discussion.

A Quantitative Look at Climate Change Coverage All of the graphs in this part of the chapter are either organized by decreasing scale or are grouped by country, with the most left-wing paper on the left and the most conservative on the right. This results in the following order: in black the U.S. newspapers: Los Angeles Times (LAT), Washington Post (WP), New York Times (NYT); in



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gray the U.K. newspapers: The Guardian, The Times, The Daily Telegraph (Daily); in white the German newspapers: Tages–Zeitung (TAZ), Sueddeutsche (SD), Frankfurter Allgemeine (FAZ). Again, it has to be stressed that for the United States the order LAT, WP, NYT is somewhat arbitrary, since all three newspapers are very centrist. Frequency of Articles A search on Lexus Nexus for articles about climate change from September 7, 1999 to March 7, 2000 was conducted separately for each newspaper. The search revealed a wide range of results: 161 articles in the Guardian and 23 articles in the TAZ (Figure 8.1). All the articles were then examined. Articles that mentioned climate change only briefly and letters to the editor were excluded (Figure 8.2). Opinion and editorial pieces were included. Pieces in which at least half of the article was devoted to some aspects of climate change were categorized as articles about climate change. Again, the Guardian had the highest number of articles (40) followed by the New York Times (24) and the Daily Telegraph (23). All other newspapers featured between 13 and 18 articles. The numbers of articles cannot directly be compared to each other, because of the large differences in size of the examined newspapers. I therefore calculated an index that weights the number of climate change articles against the total size of the newspaper (Figure 8.3). The index numbers only have relevance in relationship to each other.

FIGURE 8.1. TOTAL ARTICLES MENTIONING CLIMATE CHANGE.

23

36

38

Germany: TAZ

Germany: Sueddeutsche

Germany: FAZ

102

U.K.: The Daily Telegraph

U.K.: The Guardian

U.K.: The Times

102

90

U.S.: New York Times

0

77

U.S.: Washington Post

80 40

161 132

U.S.: LA Times

200 160 120


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FIGURE 8.2. TOTAL NUMBER OF ARTICLES ABOUT CLIMATE CHANGE. 50

16

14

13

13

Germany: TAZ

U.S.: LA Times

U.K.: The Times

16


18



U.K.: The Guardian

10 0

23


23

Germany: FAZ

40

40 30 20

7.4

7.0

6.7

5.7

4.8


U.K.: The Times

Germany: FAZ

U.S.: LA Times

9.6


11.9

Germany: TAZ

12.4


24.1


30.0 25.0 20.0 15.0 10.0 5.0 0.0

U.K.: The Guardian

Coverage Index

FIGURE 8.3. WEIGHTED COVERAGE.

Weighted averages did not change the ranking of the first and last places (Guardian and Los Angeles Times respectively), but it did change the order of the other newspapers quite considerably. There are large differences between the newspapers: The Guardian has twice as much coverage on climate change than the Daily or the TAZ and five times as much as the Los Angeles Times. The total coverage by country (Figure 8.4) revealed that the issue is almost equally poorly covered in the United States and in Germany. This is surprising,



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FIGURE 8.4. TOTAL COVERAGE OF CLIMATE CHANGE BY COUNTRY. 100

81

80 60

52

43.1

40

U.S.

43 24.6

21.4

20 0

Total articles about cc Weighted coverage

U.K.

Germany

since Germany has been considerably more proactive and outspoken on issues of climate change and renewable energy. We might find one explanation by applying the issue-attention cycle, a media theory developed by Anthony Downs in 1972 (Korleti, 1999). This theory claims that public interest and media coverage will wane, once an issue has been taken up by politicians and the public believes the issue has been taken care of. Another explanation might be that during the period examined, Germany was rocked by the financial scandal surrounding the former head of state Helmut Kohl. These explanations can only be speculations. The United Kingdom has almost twice as much coverage. This might be partly due to the fact that during the time covered the Climate Change Levy—an energy tax—was debated in Britain. Yet the analysis of the types of articles reveals that this can only be a partial explanation (especially since articles that dealt with the Climate Change Levy exclusively were not included in the analysis). Other reasons might be Britain’s vulnerability to sea level rise or its strong tradition of care for nature and wildlife. Yet again, these explanations can only be speculation. Degree of Acceptance One of the major problems with climate change coverage in the United States has been that the media, in an effort to be balanced, has given equal weight to climate scientists and climate skeptics, even though the skeptics are outnumbered by a factor of about 1000. Furthermore, most of the skeptics are not credible scientists.2 To measure the degree to which newspapers acknowledge the existence and severity of climate change, each article was rated using the following scale: 1. Article refutes the existence of (human-induced) climate change strongly and attacks the mainstream scientists or politicians. 2. Article refutes the severity of (human-induced) climate change (for example, argues that benefits will at least balance the possible damage).


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3. Article neither acknowledges nor refutes the existence of (human-induced) climate change. 4. Article acknowledges (human-induced) climate change. 5. Article acknowledges (human-induced) climate change and conveys urgency of the problem. (Articles that use only quotes that strongly urge action are counted in this category.) The rating is, of course, to some extent subjective. Nevertheless, the results (see Figure 8.5) are clear enough to give a strong indication of the tendencies in each newspaper. What is most striking about the results is that we can see the same pattern in all three countries: The more liberal (that is left wing) a paper is, the more strongly climate change is acknowledged to be a serious problem. All conservative papers have lower ratings. It is also surprising that overall skepticism is not stronger in the three U.S. newspapers than in the examined newspapers from Germany and the United Kingdom. To test the consistency of the acceptance rating, I calculated the standard deviation (Figure 8.6). The data shows a clear pattern in the United Kingdom and Germany: the standard deviation is smaller for the liberal papers and increases as the newspapers move to the right (politically speaking). This means that in conservative newspapers, the spread of skepticism and acceptance is much wider: the lowest rated article in the Daily was a 2.5, whereas the lowest rated article in the Guardian was a 4.

FIGURE 8.5. DEGREE OF ACCEPTANCE. 4.9

3.9

4.6 4.1


Germany: TAZ


U.K.: The Times

3.8

U.K.: The Guardian



4.2

4.4

Germany: FAZ

4.9

4.7

U.S.: LA Times

5.5 5 4.5 4 3.5 3 2.5 2



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FIGURE 8.6. STANDARD DEVIATION OF ACCEPTANCE. 1.1 0.68

0.9

0.72

0.67

0.55

0.5

Germany: FAZ



U.K.: The Times

U.K.: The Guardian



Germany: TAZ

0.3

0.27 U.S.: LA Times

1.2 1 0.8 0.6 0.4 0.2 0

In the United States, all three newspapers have a very similar standard deviation of acceptance. This is not particularly surprising, since all the newspapers are centrist. What is somewhat surprising is that the standard deviation for the United States papers is considerably lower than for the conservative papers in Europe. A larger standard deviation indicates a lack of consistency in the newspapers’ overall stands on climate change. It expresses the difficulties that arise when a nonpolitical issue such as the science of climate change is cast as a political issue. Environmentalists have always been seen as more liberal. It comes therefore as no surprise that left-leaning newspapers not only have higher rates of acceptance but also lower rates of inconsistency in their messages. The conservatives have traditionally been seen as the ones who are more skeptical towards environmental issues. In the climate debate, many of them have long denied the existence of any problem. Now that the science is becoming increasingly clear, and we are starting to see some of the effects of climate change, the conservatives can no longer deny the problem. Acknowledging the existence and threat of climate change means that conservative voices have to change their position on climate change radically. This is the probable reason why the overall message of the articles on climate change is much more inconsistent in the conservative newspapers. A good example of the wide discrepancy in the overall message a newspaper might convey are the following titles of articles that appeared in the Daily Telegraph: on October 23, 1999, a story was headlined, “Money-Go-Round: Don’t risk becoming washed up by the storm. With freak weather conditions on the increase, make sure contents are covered.” The article urged people to get sufficient insurance coverage


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on their houses due to an increase in severe weather events caused by global warming. Two months later, On December 11, another story was titled: “Weather report: Scare stories cut no ice; Global Warming: the blatant lies and exaggerations.” One could argue that a higher standard deviation is an expression of freedom of opinion in a newspaper. This would be true, if the different approaches to solutions had been ranked. However, for the purposes of this study, the investigator has accepted the existence of climate change as a scientific reality. To use an analogy, no one would argue that we should have more diverse media coverage on whether tobacco is a harmful substance or not. Denying the existence of a scientific phenomenon seriously misguides readers. It is, in the best case, sloppy journalism and, in the worst case, outright deception. Placement The placement of an article indicates the relevance the newspaper gives to a topic. Agenda-setting media theory claims that the media spokesmen “do not tell people what to think; they tell them what to think about” (Stepel and Guido, 1994). An article that appears on the front page indicates that it covers an important issue. Likewise, if a newspaper continuously buries articles of a certain topic in the middle or towards the end of the newspaper, it implies that the topic is more arcane and does not have relevance to the general public. Figure 8.7 shows the number of articles that have appeared on the front page, the first 5 pages, or the first 15 pages respectively. The Times was omitted from this section because

30 25

Frontpage

22

page 1-5

page 1-15

20

00

6

8 2

0

45 U.S.: LA Times

122

3

Germany: FAZ

11

6


0

23


0

2


5

4

10

Germany: TAZ

10

13

10


15

U.K.: The Guardian

Number of Articles

FIGURE 8.7. PLACEMENT OF ARTICLES.



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page numbers were not available. The newspapers are organized by their weighted average of climate change coverage (see above). Seventy percent of all climate change articles in the TAZ appeared in the first 15 pages. Yet, we have to be cautious when comparing the TAZ with the other newspapers since it is a much smaller newspaper with fewer pages therefore, more articles will show up in the first 15 pages (see appendix). The two British newspapers give the issue more prevalence than their German and U.S. counterparts. This confirms the analysis on amount of coverage, which showed much more climate change coverage in Britain than in Germany and the United States. Strikingly, 90 percent of all climate change articles in the New York Times are buried somewhere in the middle or the end of the paper. This confirms that the New York Times does not wish to approach the political issues surrounding climate change. (Eight of the 24 articles on climate change appear in the science section, accounting for almost half of the total words of climate change articles.) A comparison of the placement in the different sections of the newspapers (for example national news, international news, science, and so on) would have been very interesting but was not possible because of very different categorizations among the newspapers and a lack of information.

A Qualitative Comparison of Climate Change Coverage A qualitative analysis of climate change coverage requires consideration of several factors. First, what level of understanding can newspapers assume their readerships have? Second, how much do they care? Third, how do the newspapers deal with issues of scientific uncertainty? The Level of Public Education In order to make informed decisions, the public has to have a basic understanding of the science and the politics of climate change. Research in the mid-1990s by Kempton and others showed profound confusion among the general public about climate change and the ozone hole. Kempton explains that many of the misconceptions embedded in cultural belief come about when a new issue is introduced. Instead of constructing a new mental concept, people tend to integrate the new issue into an already existing framework. Climate change is a telling example. Just a few years before climate change became a public issue, people had been exposed to information about ozone depletion. The ozone issue was, unlike most environmental problems, fairly easy to grasp. In addition, the general public was provided with a powerful image,


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the ozone hole, and a few culprits like the aerosol can. Climate change is vastly more complex and not as easily visualized. As a result, people tried to integrate the new climate change issue into their mental model about the ozone hole. Kempton shows clearly how this led to misconceptions and confusions about the issue. The vast majority of people were unable to distinguish between the two problems (Kempton and others, 1995). Kempton also found that, in general, average knowledge about environmental issues is low. This is reflected in the most recent National Report Card on Environmental Knowledge, Attitudes and Behavior, a study done yearly by the National Environmental Education and Training Foundation. For example, the majority of Americans still think spray cans are depleting the ozone layer, even though such spray cans were banned in 1979. It is arguable that most people know little to nothing about climate change in any of the countries studied in this chapter. Two quotations from English and Indian newspapers demonstrate this: Priede hopes his research will help our understanding of global warming. Humans are burning fossil fuels, which creates excess carbon dioxide. That is contributing to the hole in the ozone layer. There is a theory that the earth will look after itself and will adapt to deal with the carbon dioxide. By studying the ocean bed we can determine how much of the carbon dioxide is being removed permanently and how much is being recycled and returned to the surface. [The Times, Dec. 9, 1999] Excessive rain and failing monsoons, from which the widely scattered regions of the world suffer at the same time, result from ecological onslaughts such as the ripping of the ozone layer by the unchecked emission of chlorofluorocarbons it has had to suffer principally from the richer countries. Unless such environmental vandalism is effectively checked, the resulting global warming will irretrievably wreck the planetary ecology. [The Hindu, Dec. 29, 1999]

Does the Public Care? Since most Americans are very poorly educated about climate change, it is not surprising to find that they do not really worry about it. A U.S. Gallup poll from 1999 found: Worry over specific [environmental] issues has not changed [much since, 1990]. At the same time that Americans are more satisfied with the work being done to protect the environment in general terms, there has been little to no change in the degree to which they, personally, worry about specific environmental issues.



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Americans seem most concerned about the pollution of drinking water, with 68 percent worrying “a great deal” about this problem. Other big concerns to more than half the public include toxic waste contamination, pollution of rivers, lakes and reservoirs, and air pollution. Of the eleven issues tested this year, Americans are the least concerned about “acid rain,” mentioned as a great concern by just 29 percent, followed by “global warming,” at 34 percent.

A recent survey in the United Kingdom found that 60 percent of the population believes that climate change and air pollution are a serious threat but only 20 percent supports higher taxes for car drivers to curb emissions. Yet when asked about what should be given priority, economic growth or environmental protection, a majority give priority to the environment. The recent outcry of the American public when oil prices rose indicates a similar attitude among Americans. Environmental protection seems to be a theoretical priority, but when it comes to personal spending and lifestyle choices, economic concerns seem to far outweigh environmental concerns. Explaining Scientific Uncertainty The main processes that contribute to climate change are simple and easy to understand. There is no scientific uncertainty about the fact that thanks to the “greenhouse effect” our planet is about 30° Celsius warmer than it would be without a heat-capturing atmosphere. It is also a fact that CO2, methane, water vapor, and other greenhouse gases absorb heat and have therefore the capacity to warm the atmosphere. We also know for a fact that CO2 levels have risen by over a third since the beginning of the industrial revolution. Well established also are some of the effects that climate change will have: sea levels will rise due to higher temperatures which cause water to expand and melt glaciers. Precipitation will increase overall, due to an increase in water evaporation and an increase in severe weather events (IPCC SAR, 1995). Despite this knowledge, it is difficult to answer specific questions about what impacts may be expected in what places at what moment in the future. Thousands of scientists around the world are working towards a better understanding of the physical and chemical interactions that shape global weather and climate patterns and computer models have become much more sophisticated over the last decade. Scientists are still not able to predict with certainty the local changes that will occur due to climate change. The scientific debate over new models, new theories that try to explain a certain phenomenon, and new studies is very intense. It is important that scientists evaluate and criticize each other’s work in order to identify the weaknesses and strengths of new scientific findings.


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Unfortunately, the media does not handle such uncertainty well. It is difficult enough to translate the highly scientific issues into plain language that the layperson (and the policy person for that matter) can understand. Explaining the uncertainty and putting it in context is something even experienced science writers regularly fail to do. Making matters worse, in the U.S., the climate skeptics, backed by the fossil fuel lobby, have used this uncertainty to misrepresent, misinform, and confuse the public. In his book The Heat Is On (1995) Ross Gelbspan gives a detailed account of the financial contributions many outspoken skeptics have received from fossil fuel industries. He also reveals that most of the scientific arguments put forward by the skeptics have no scientific validity but have nevertheless been quoted again and again in the media as valid counterarguments. It is interesting to note that in the last year the Global Climate Coalition, a fossil fuel industry-sponsored organization, and other like-minded think tanks have shifted their emphasis from scientific arguments to economic ones. It seems that scientific evidence has become so strong that even the most convinced skeptics have to acknowledge that global temperature is rising (NYT, Feb. 29, 2000). To illustrate how the media has dealt with uncertainty, I will look at one specific issue: the satellite debate. The satellite debate started a couple of years ago, when scientists publicized climate research that used satellite temperature measurements. The temperature records from these satellites did not confirm the global warming trends that had been observed by surface temperature measurements. On the contrary, some of them showed a decrease in average temperature. Climate skeptics used this study to debunk the climate change theory. Early this year the U.S. National Research Council (NRC) issued a report on climate change that also examined the disparity of these satellite and groundlevel temperature records. The report confirmed that global warming was undoubtedly real. Concerning the satellite debate, the report stated that when short-term climate fluctuations, such as the eruption of Mount Pinatubo, were taken into account, the discrepancy in temperature measurements shrank considerably. The report furthermore pointed out that the time frame of 20 years for which satellite data is inconsistent with other measurement was too short to make any substantial predictions and that the discrepancy in measurements could not be fully explained. The issue was taken up by all three U.S. papers, the British Times and the Indian Statesman. The New York Times printed an 809-word article on the issue that appeared the same day as the article about the climate skeptics cited above (2/29/00). The article is very ambiguous (acceptance rating: 3). It explains the issue well but does not put it in context—that is, even though this particular issue might still be ambiguous, there have been numerous very alarming studies



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that point towards an accelerated warming of the earth (for example, the shrinking of the arctic and of glaciers and the rise in deep sea temperature). The article ends with: “But for now, the great satellite debate remains at least partly unsettled.” The Los Angeles Times reported on the NRC study on January 13, 2000. The issues behind the debate are well described but the article ends with a quote by Arthur Robinson, an ardent climate skeptic with no credentials in the scientific community (acceptance rating: 3.5). The Times published an article on March 1, 2000 that reported on the NRC study. Despite the strong statements in the NRC study affirming trends toward global warming, the title of the Times article reads: “Doubt Cast on Warming.” The article ends with the sentence: “The argument [over the satellite debate] continues.” Again, the issue is portrayed as a two-sided argument and is not put into context (acceptance rating: 3). The final paragraph is a lengthy quote by Fred Singer, one of the most zealous climate skeptics. It is interesting to note that one day later the Statesman published the exact same article that had appeared in the Times. This may point toward a close relationship between those two newspapers. Two Washington Post articles also mentioned the satellite debate. Interestingly, the two articles are written in a very different tone. The first one that appeared on January 13, 2000 reported on the NRC study (acceptance rating: 3). The satellite issue is not put in context and is portrayed as an argument between two opposing parties, as the ending of the article shows: “It totally deflates the argument of the so-called skeptics that had used the apparent difference between ground-based and satellite data to argue that we really didn’t know whether the world is warming or not,” said Michael Oppenheimer, an atmospheric scientist with the Environmental Defense Fund. But Arthur Robinson, the president of and a professor of chemistry at the Oregon Institute of Science and Medicine, called the report a “political document” and evidence that the “National Academy Board has pretty much been taken over by enviros.” He contended that any global warming is part of a natural trend. “One must not lose track of the fact that the Earth’s temperature has been warming now for 300 years, not just 50 years. And there was no coal or gas 300 years ago,” he said.

The second article appeared on February 23, 2000 and reports on different newer scientific climate change studies. The satellite debate is very well put in context with other studies. The issue is also not just portrayed as two-sided, but as


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being part of a wider scientific discourse that tries to explain a set of very complicated phenomena. None of the hard-core skeptics are mentioned (acceptance rating: 4). On the positive side, all articles explain the science behind the satellite debate well and in a way that it is understandable to the layperson. Yet only one article gives enough background information to provide a context in which the reader might evaluate the issue. Also, the satellite issue is falsely portrayed as an argument between two sides in all but one of the articles.

Newspaper Coverage of COP-5 Newspapers must report the political as well as the scientific aspects of climate change. This section offers a case study of how these factors are covered in the countries under study. In the fall of 1999, the parties to the climate convention met in Bonn to negotiate the implementation of the Kyoto agreement. Although the reduction targets are rather small (and far too insignificant to stabilize the climate), many developed countries have been extremely resistant to ratifying the Kyoto agreement. The U.S. has proven to be a major obstacle to ratification. Many issues remain unresolved. For example, how much of a country’s reduction target can be met by “buying” it in other countries through trading or through emissions reduction projects implemented in developing countries? Beneath these arguments lie deeper issues of equity and power. Developing nations feel that the only way to fairly allocate resources depends on technical details that are involved in the current negotiations (for example, additionality, baseline). Yet a good report would explain these issues briefly and then relate them to the deeper ethical and moral issues. Overall, the Bonn meeting was covered only very marginally. Neither of the Indian newspapers mention it at all. The Los Angeles Times and the Daily Telegraph each mention it in one sentence and the Washington Post in two paragraphs. This minimal coverage in the Post is all the more surprising, since the newspaper has a specific focus on politics. The New York Times has only one short article about Bonn (188 words) and mentions it in one paragraph in another article. The Times has one article and mentions Bonn in one other, while the Guardian has two articles, one of them over 1000 words, and mentions Bonn in a third one. It is not surprising that Bonn is covered most extensively in the German newspapers. The FAZ covers Bonn most comprehensively, with four articles, three of them over 1000 words long. Both the TAZ and the Sueddeutsche have two medium-sized articles.



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The length of the articles already gives some indication about the quality of the coverage of Bonn. Even if well written, very short articles fail to give readers enough background information to educate them about the issue. All three U.S. newspapers and the conservative Daily Telegraph give the issue insufficient coverage. An article that would educate the reader sufficiently would address at least the following seven questions (see Table 8.1). As the table shows, the coverage is clearly insufficient. Issues of Journalistic Style The concept of objectivity is enshrined in the professional codes of U.S. journalism. The notions of objectivity and balanced journalism are often used as a means to legitimate claims of independence from the state or interest groups involved in the issue. The extent to which objectivity is possible or even desirable is a source of great debate among sociologists as well as media practitioners. Underlying this debate is a wider philosophical discussion about the nature of truth and the existence of an external reality (Anderson, 1997). On the one end of the spectrum are the realists who believe that there is an objective truth. On the other side are the constructivists (sometimes also called idealists) who believe that there is no external reality and that all perceptions are shaped by personal and cultural factors. There are profound differences in style among the different newspapers. In European journalism, neutrality is less valued as a precondition for objective reporting than it is in the American press. In other words, even a newspaper with a strong political position can be seen to be reporting objectively, as the following mission statement of the Guardian illustrates: The paper has maintained a radical, left of centre editorial stance ever since— but has kept equally firmly to the famous edict of the man who brought it to international prominence, Charles Prestwich Scott. In the paper’s 1921 mission statement Prestwich stated: “Its primary office is the gathering of news. At the peril of its soul it must see that the supply is not tainted. Neither in what it gives, nor in what it does not give, nor in the mode of presentation, must the unclouded face of truth suffer wrong. Comment is free, but facts are sacred.”

In contrast, it seems that in U.S. journalism neutrality is seen as the prerequisite to fair journalism. Newspapers are therefore much more reluctant to express openly a political orientation. Again, this is very different in Europe, where a statement about the newspaper’s political orientation is often printed on the front page right below the title of the newspaper.

NYT Times Guardian TAZ Sueddeutsche FAZ

Paper

x

x x x x

What are the proposed trading mechanisms?

x x x

x x

x

Who has ratified?

How many have to ratify for the agreement to enter into force?

x

x x

What are the Kyoto commitments?

x

What reduction would be needed to stabilize the climate?

QUESTIONS ADDRESSED IN THE COVERAGE OF COP-5.

Who are the big interest groups and what do they want?

TABLE 8.1.

x

x

What are the implications of doing nothing?




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The use of language is very different among the newspapers. The more conservative, industry-leaning newspapers write in a much more disengaged style. This is not surprising since such objectivity is based not in neutrality but in a desire to promote, purposefully or inadvertently, the status quo. In the current climate debate this means advocating taking no (or very limited action) to cut greenhouse gases. The starkest example of this emotionless writing is the reporting style of the Frankfurter Allgemeine, a conservative German newspaper. In European left-wing newspapers the boundary between news article and editorial piece is often blurred. Sometimes this can add to the clarity of an article, when the different facts of an issue are put into one coherent frame. However, some of the articles in the TAZ and the Guardian have so much editorial content (the “Guardian-whine,” as someone once characterized it) that the articles lose focus and the reader is left wondering if the journalists really wanted to communicate something or just needed an outlet to complain. Conservative newspapers with their often very disengaged coverage of environmental issues, may equally fail to provide their readers with a comprehensive story that links all the issues together. The following two quotes from the New York Times and the Guardian illustrate the differences in style between left wing and conservative newspapers. In a concession to environmentalists, the Ford Motor Company said today that it would pull out of the Global Climate Coalition, a group of big manufacturers and oil and mining companies that lobbies against restrictions on emissions of gases linked to global warming. Ford’s decision is the latest sign of divisions within heavy industry over how to respond to global warming. British Petroleum and Shell pulled out of the coalition two years ago following criticisms from environmental groups in Europe, where there has been more public concern than in the United States. Most scientists believe that emissions from automobiles, power plants and other man-made sources are warming the Earth’s atmosphere. [New York Times, Dec. 7, 1999] Another global corporation has seen the light. Ford Motor Company, the world’s second biggest carmaker, has followed BP and Shell in pulling out of the rabidly right-wing Global Climate Coalition. Company chairman William Clay Ford Junior quietly slipped out the decision in a letter to Sister Pat Daly, a nun working for the Interfaith Centre on Corporate Responsibility in New York, which has targeted the company’s shareholder meetings. Ford is the first US multinational to pull out of the GCC, a coalition of fossil fuel producers and automakers which spends millions on advertising campaigns questioning the existence of global warming. Next year, Sister Daly and the pressure group


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Ozone Action plan to turn their formidable attention to the GCC’s dwindling band of diehards—including General Motors, Exxon and Mobil [. . .] [Guardian, Dec. 15, 1999]

Proposals for Reform Based on the main findings of this study, this section explores how media coverage of climate change in particular and environmental issues in general could be improved. The suggested reforms are structured in three categories: changes that would improve the quality and quantity of coverage (for example, increase in coverage of the social and political aspects of climate change); changes that journalists and newspapers would need to make in order to foster improved quality and quantity in environmental coverage (for example, going beyond the left-right debate and actively promoting the precautionary principle); and systematic changes on a broader level that would encourage newspapers to undertake these changes (for example, improved journalism education, easier access to information). Improving the Quality and Quantity of Coverage Improved coverage of climate change and other environmental issues would involve four changes. First, coverage of climate change issues should be increased. Newspapers have proven to be especially weak in three areas: mitigation and adaptation strategies (at all levels); political issues surrounding national and international policies; and the underlying equity and economic development issues. Second, more feature articles and in-depth series should be written to cover specific issues in greater detail. Third, more emphasis should be placed on issue linkage, to help people understand the complexity of environmental issues and connect them to their everyday life and to the people and things they care about (for example, the well-being of their children and grandchildren). Fourth, climate change and other global environmental issues should be placed more prominently in the newspaper. Both journalists and newspaper management will have to adjust to achieve these goals. Journalists will need to educate themselves about the scientific, economic, and social issues of climate change (or any other environmental issue). They must be able to accurately report on scientific findings. This would involve checking the validity of the scientific sources (for example, peer-reviewed articles). Each should also be a courageous and fair advocate of the environment.3 The managers of newspapers will need to commit sufficient resources to environmental coverage; make environmental issues a priority for the newspaper;



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and communicate to their staffs that environmental issues are a priority. To achieve these changes, several steps could be taken to help journalists and newspapers to improve environmental coverage. The remainder of this chapter explores some of these possible reforms. Redefining the Role of Environmental Journalists Public journalism, a movement that started in the early 1990s in the United States, offers a valuable blueprint for how environmental reporting should ideally look. It expands the role of the media beyond pure “information delivery” into the civic role of educating citizens. Arthur Charity (1995) said that “public journalism ought to make it as easy as possible for citizens to make intelligent decisions about public affairs.” A reporter practicing public journalism asks the question: What would make it easier for people to learn the facts they have to know to make informed decisions? In Doing Public Journalism (1995) Charity uses a three-step model the public goes through in forming an opinion and deciding on actions. The first two phases include conciousness raising by bridging the gap between public and expert understanding and working through an understanding of the issues and what must be done about them. In the initial consciousness-raising stage stage the public becomes aware of an issue and learns about its meaning and implications. In the example of climate change, the public learn about the science, the causes, and the effects of climate change. Articles in this stage should be written to help the public understand the issue and develop an agenda. At the working-through stage, the journalist has to ask: What does the public need to know to make informed decisions? After the public has become sufficiently educated about the issue, people have to be actively engaged and involved in the search for solutions. Journalists can help facilitate this understanding and engagement in four ways. First, they should explore the underlying core values an issue involves. In the climate debate, one of the underlying core values involves equity. Some of the question the public needs to explore are: Who has the responsibility to reduce GHG emissions? Since developed countries are responsible for a much bigger share of the 30 percent increase in atmospheric CO2 levels, do they have a moral obligation to take responsibility for this share and reduce their emissions accordingly? Second, journalists should articulate the choices to be made. The public needs to learn about the different solutions. The equity issue addressed above, for example, leads to the question: Should greenhouse gas emissions be calculated per capita or per GDP, or just by taking a baseline year, as has been decided for the developed world’s obligation under the Kyoto agreement?


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Third, journalists can spell out the costs and consequences of each choice. In the climate debate, this stage involves questions such as: What are the expected consequences of not reducing our greenhouse gas emissions? What are the available adaptation strategies? What are the possible mitigation strategies? What are the costs of switching to a non-carbon-based economy? What are the experiences other countries have had in trying to reduce their emissions? Finally, journalists can facilitate dialogue and promote civility in public discussion. The public can only understand an issue if people are able to articulate and discuss it. Such discussion is only meaningful if it encourages creative thinking that allows the synthesis of different ideas. Partisan thinking, cynicism, and a narrowminded approach to solutions can only lead to public frustration and disinterest. Ideally, the public should be actively involved in the process of implementing solutions. The role of the press in this stage should be to actively encourage participation. Such participation could be on a political level, or on a more personal level that involves lifestyle choices. Journalists are responsible for informing and facilitating public debate in these two phases of opinion formation. It is also important that environmental issues be removed from the current “left-right” paradigm. Environmental health, like public health, is of concern to all people. There is no reason why conservatives and liberals should not care equally about the environment. The media can contribute its part in moving the public beyond this unproductive political divide. As this analysis and earlier studies have shown (Korleti, 1999), the media has portrayed the science of global climate change very much as a political debate between the left and the right. Successful environmental coverage, following the guidelines of public journalism, should educate the public and explain possible solutions. There can and should be political debate about the solutions but not about the science or about whether environmental health is important or not. Environmental journalists should be advocates of the precautionary principle. According to Dr. Michael McElroy, chairman of Harvard’s Department of Earth and Planetary Sciences, “Just because there is uncertainty does not imply the reality is benign. It could easily be far worse.” Journalists who report on environmental issues should not only follow the guidelines of public journalism, they should actively promote the precautionary principle. Much of environmental science deals with risk assessment and uncertainties. Many of these cannot be resolved until it is too late to reverse the damage. This is especially true for global issues such as climate change. In issues where our only testing field is the earth itself, the only reasonable and cautious way to deal with scientific uncertainties is to address the issue in a precautionary manner. Balanced science journalism does not mean giving equal weight to proponents and opponents of an issue. This might be a valid approach for a journalist



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writing about political candidates but it is totally inappropriate for science coverage. Balanced science reporting means researching the issue thoroughly, finding out where the weight of opinion lies, and reporting on the current state of science. Scientific uncertainty should not be omitted, but it has to be put in context (for example what are the risks involved). Again, the only valid approach to scientific uncertainty should be the precautionary principle. Most journalists shy away from the role of the reporter as an advocate. Even the proponents of public journalism state that journalists should never advocate certain solutions but only advocate principles such as free speech and democracy. Another position has been articulated by Barresi (1994) who wrote, “The mass media’s ostensible refusal to play a partisan role in environmental matters is, paradoxically, a commitment to do just that, albeit in a counterproductive manner. So-called journalistic objectivity loses its value when it encourages disjointed, incomplete, or inaccurate reporting of international environmental issues which, in turn, fosters public ignorance and confusion” Most environmental journalists I spoke to for this project felt strongly that an environmental journalist cannot be a balanced reporter and an advocate at the same time. They believe that an advocate has preconceived notions about which solutions should be pursued and is unable to perceive new information openly and without prejudice. Issue Linkage: Making Climate Change Tangible The complex nature of environmental issues and their interdependence with other fields such as economics and politics, make their coverage difficult. This is especially true for global environmental issues, which are often not immediately perceivable (for example, we cannot see the ozone hole, nor can we feel the accumulation of greenhouse gases in the atmosphere). Such issues have to be made tangible for the public. One way to do that is to point out the link between climate change, unusual weather events, and outbreaks of vector-born diseases (see section on Improving Journalism Education). This would give people a sense of how concrete and real the impacts of climate change are and will be. As the analysis has shown, this connection is rarely made. Improving Access to Information Many environmental journalists are already members of the Society of Environmental Journalists (U.S.-based) and the International Federation of Environmental Journalists. A strengthened network of journalists could help them to find trustworthy information. Access to information about environmental issues for


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general reporters and journalists from other fields (for example, economics and business reporters) also should be improved. For example, new and important scientific findings should be publicized through press conferences and accompanied by press releases and informational materials that explain the issues in common language for a nonscientific audience. Scientists should take extra care to explain the issues in nonscientific language. Too often very technical and specialized scientific jargon leads to confusion, misrepresentation, and a lack of interest. A web-based database of information about current environmental issues could be established and maintained by the Society of Environmental Journalists or a similar NGO. Existing GOs and large NGOs have to simplify and reorganize their web pages to make information more accessible. Many U.N. and U.S. government agencies have large websites with huge information databases. Yet it is often very difficult to find the needed information (that is, FAO, EPA, or USDA web pages, to mention just a few). Such large web pages should establish extra sites just devoted to information delivery for journalists and other nonspecialists. Environmental NGOs should issue press releases and information packages about environmental issues. Many are of course already doing that. Yet since NGOs have become so numerous the wealth of information is often confusing and overwhelming. It might therefore make sense for NGOs to work together on issues and develop joint strategies and joint information packages on issues. A good example for such cooperation is the Clean Energy Agenda that was developed for Earth Day 2000 by dozens of American environmental NGOs. Special care must be taken to inform journalists about the political events surrounding environmental issues. As the study has shown, COP-5 in Bonn was covered only marginally by most newspapers. The press rapidly loses interest in conferences and debates that seem to be very detailed and technical. Yet underlying these technical issues are deeper conflicts about values (for example, equity). Journalists covering these events might very often not be aware of these underlying issues. One possible remedy would be special sessions during international negotiations for journalists. Such informational discussions could help educate journalists about the major underlying issues and foster more meaningful media coverage of the political struggles surrounding international environmental treaties. Improving Journalism Education Most journalists are no better educated about environmental issues than the general public. A strong argument can be made that, in this day and age, a basic understanding of ecology and of environmental issues is as important as a basic



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understanding of economics and the democratic process. A course in environmental studies should be a core requirement for all journalism degrees. Many journalists do not have a formal journalism degree but majored in fields such as literature, social science, or law. Making an environmental course a core requirement for journalism and media majors will not reach a wide enough audience of future journalists. An environmental course should be a core requirement for any undergraduate degree. This would have the benefit of educating not just potential journalists but also future economists, business leaders, politicians, engineers, and so on. This is much easier said than done. However, there are individuals and organizations that are working towards this goal. For example, Second Nature, a Boston-based NGO, works with colleges and universities all over the United States to integrate sustainability and environmental issues into their curriculum and their general practices. Improved college education will reach future reporters, but current media specialists also need to be targeted and educated. Training workshops for media professionals might go a long way toward closing this educational gap. Journalists rarely link issues such as human health or severe weather events to climate change. While political reasons may play a part in this disconnect, it is also true that many general assignment reporters who cover storms and floods usually do not know much about climate change and the link between higher temperatures and increased severe weather events. One way to remedy that would be to organize short educational workshops for managing and news editors as well as general assignment journalists. In these workshops the media professional would learn about the latest scientific discoveries, for example, in the area of climate modeling and the economic implications of such climatic changes. These workshops should be led by someone who is well respected and known in the news business. Some NGOs have done similar educational tours for different environmental issues but they usually targeted editorial writers and science reporters— journalists who are usually already well informed. Targeting the less informed reporters who write more about local and daily events might be far more effective. Creating Visibility At many newspapers the environmental desk is hopelessly understaffed. At the Boston Globe for example, only one full-time and one half-time reporter cover the environment, compared to about 35 reporters for the business section alone. This imbalance affects the quality of reporting. Even the most talented journalist


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cannot follow all different local, national, and international environmental news. Understaffing reflects a newspaper’s underlying priorities. Clearly, for the Boston Globe, business and economic issues are considered much more important than environmental issues. Another way to bring environmental issues into the public eye through the media might be the establishment of international recognition for excellence. A prestigious award for an outstanding piece of reporting might be modeled on the Pulitzer Prize. The establishment of a Nobel Prize for Environmental Stewardship would add visibility to environmental issues and trigger media coverage. An article in the Boston Globe from January 16, 2000 titled “A Cloud over the Environment: Study Offers Unrelentingly Gloomy Forecast For Earth” reported on the annual volume of State of the World, a publication of the Worldwatch Institute. In this article, the Worldwatch report is counterbalanced with a report from Competitive Enterprise Institute, which claims the exact opposite: It uses indicators such as life expectancy and declining cancer rates to prove the well-being of the planet. The article ends with the following quote. “‘Every year, Lester Brown and the Worldwatch Institute try their darndest to spin a tale of impending woe, and every year they come up empty,’ said Jerry Taylor, director of national resource studies at the Cato Institute; another conservative think tank.” While clearly calling into question the meaning of balanced journalism, this news item also shows the potential utility of establishing an international environmental index similar to the GDP. In this article, State of the World is open to skepticism not because its conclusions are too gloomy or poorly researched, but because they are publicized by an environmental NGO. The GDP has become so mainstream that it is used as an indicator for economic development all over the world by media, NGOs, and GOs. It might therefore be extremely useful to develop a set of environmental indicators that can be used side-by-side with more mainstream economic indicators. The challenge will be twofold: to devise indicators that are simple and at the same time meaningful and have these indicators seem equally valuable and neutral. It is arguable that such environmental indicators will not become mainstream, at least not in the near future, because there are too many business interests that might be harmed by making environmental externalities more visible. The still great marginalization of the field of ecological economics indicates that such resistance is very real. Yet this should not discourage NGOs and more holistically oriented economists and scientists from pushing for the use of such indicators. (A variety of such social and environmental alternatives to GNP already exist, see England & Harris 1997.)



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Grass-Roots Activism for Media Reform In the last 15 years, there has been a strong move towards commercialization of the media in the United States. Many of the traditionally family-owned newspapers have been sold to big media corporations. (The Los Angeles Times is just the latest example in the trend.) Such media giants have focused more on profitability than on the educational mission of a newspaper. Coverage of international news has been steadily declining in newspapers and on TV over the last decade. Studies indicate that the American public is interested in being educated and informed. Contrary to the claims of many editors, a Pew Research Center poll showed that 15 percent of readers follow international news regularly, that is 1 percent more than consumer news and 2 percent more than celebrity news (as reported in the Boston newspaper The Phoenix March 31, 2000). However, the media is moving away from in-depth coverage and feature stories. To counteract the strong push for increased profitability in the media business, a grass-roots movement might be necessary to demand that newspapers reorient their journalism towards educating their readers and not just entertaining them. Much like environmental or human rights NGOs, such a movement could engage in information campaigns, protests, and shareholder activism, demanding a code of ethics that promotes the idea of public journalism.

Notes 1. This may be indicative of American mainstream politics in general. Compared to the U.K. and Germany, American mainstream politics is much narrower and considerably more conservative. (For example, George W. Bush, President of the United States, is considered a moderate conservative in the United States. In Germany or the United Kingdom, candidates with similar politics represent the far right end of the spectrum.) 2. A good example is Dr. Arthur Robinson and his son, who published an article about their “research” in the Wall Street Journal just a couple of months ago, claiming that climate change was a natural 300-year phenomenon. Dr. A. Robinson is a nutritional chemist, who denies the existence of ozone depletion and global warming. He also sells a $195 home-schooling kit for parents who are “concerned about socialism” in the public schools. His research is portrayed in the press as equal in validity to research conducted by the NOAA or the IPCC. 3. The need for courage should not be underestimated. Journalists have been repeatedly attacked by climate skeptics. William Stevens, a science reporter for the New York Times, was severely criticized by the Global Climate Coalition and other climate skeptics for his piece on climate change that appeared in the Times on January 9, 2000 headlined “New York City: A Century Long Warming Trend.” Only a few weeks later, he published a lengthy article, “The Contrarian View,” which gave the skeptics major coverage and downplayed the severity of the possible consequences of climate change. Unfortunately, this article did nothing to clarify the issue or to educate the general public, but it certainly appeased the very vocal and powerful fossil fuel industry.



Y PART THREE

NEW TOOLS AND ARRANGEMENTS Adding Elements to the Treaty-Making System

ists of the shortcomings of the current global environmental treaty-making system are all too familiar. Two issues always seem to cluster at the top—lack of negotiation and implementation capacity, and lack of the proper mandates to facilitate compliance. The system has a very limited capacity to enable negotiators and institutions to properly design, monitor, implement, and enforce treaties. Moreover, the system rests on an inadequate legal structure. A burgeoning group of scholars critical of the system are beginning to articulate an integrative approach for reform. These authors are emphasizing the success of interesting innovations, drawing on existing environmental treaties, and from examples in regimes (both national and international) that at first glance seem to have no connection to the global environment. A number of tools have emerged that could help address some of the system’s more glaring weaknesses. Information should never be undervalued, nor should the messenger who delivers it. The lack of capacity to design and implement treaties that so many actors in the current system exhibit is often seen as a function of a limited ability to gain access to and process information. Although the past decade has been deemed an Information Age, for a number of reasons, negotiators, civil society, and the secretariats within the current global environmental treaty-making system have failed to use advanced communications technologies to their advantage. Properly obtaining and using information is vital to all the actors in the system.

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One of the positive legacies of the Earth Summit is that a number of institutions throughout the world have begun to gather and disseminate information relevant to global environmental decision making. International institutions such as UNEP, OECD, the World Bank, and NGOs like WWF have developed complex monitoring efforts, data, and indicators, as well as methods for analyzing contemporary environmental problems. National governments and private corporations have also begun to more systematically monitor themselves and publish records of their performance. Of course, local communities in the developed and developing world have harbored local knowledge of environmental problems for ages. They too are becoming more sophisticated. One example of how society can capture knowledge generated by human tradition, rather than by the contemporary research establishment is the creation of data banks and indicators of genetic diversity for rural Mexican maize. It is frustrating to realize how very little this information has triggered improvements in the current system. How can we harness information gathering of many forms to improve the global environmental treaty-making system? New technologies, and the incorporation of new actors into treaty arrangements, will be important. The Internet, while no panacea, is already proving to be of great use. It can be used by each node in the treaty-making system. It has served as a communication mechanism for NGOs and scientific communities who have identified environmental problems that need attention. Without the Internet, the NGO-fostered international land mines treaty would have to have been attempted by direct mail, a process that probably would have been too expensive to execute. During decision-making processes, the Internet has aided negotiators and made negotiations more transparent by webcasting key elements of the dialogue as they occurred (that is, during the Kyoto preparatory process). Finally, the Internet has provided a common forum where monitors have met and posted information regarding compliance and implementation. A less frequently discussed technological innovation is remote sensing. Although it was used to orchestrate the environmental clean-up after the Persian Gulf War, remote sensing and related technologies have yet to realize their potential. If these mechanisms can spot where fishing fleets can place themselves to optimize their catch, the global community can use them to identify changes in ecosystems and increase compliance with global environmental arrangements. The introduction of these technologies poses new challenges to global environmental treaty making, especially to sovereignty and concerns about equity. These tools need to be built into treaties in order to be effective. When such information does become abundant, how should it be used? This question leads to the second most often discussed weakness of the current system—the lack of an adequate legal structure. If there is greater certainty regarding the nature


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of global environmental problems, in addition to the likely costs and benefits of letting them go unattended, a stronger case can be made for introducing elements of hard law into a new environmental treaty-making system. Borrowing from other national and international regimes, authors in this section suggest that mechanisms analogous to citizen suits be added to the treaty-making system. Others suggest that there is a case to be made for adding something like an international environmental tribunal. However, absent information and the proper way to process it, no case can be made. Finally, markets as a tool to achieve global environmental goals have been seen as foreign (if not downright hostile) to international environmental treaties. However, many global environmental problems arise because markets do not adequately take account of social costs in allocating resources. Yet, when properly harnessed, markets may prove to be a very important mechanism for meeting environmental goals. Both the introduction of tradable permits in the climate change regime and trade sanctions under the Montreal Protocol may prove to be more effective than the hardest law available. When economic actors see that real environmental costs will be added to the cost of doing business, they are likely to become, as the environmentalists might say, enlightened.



Y CHAPTER NINE

INTEGRATING INFORMATION TECHNOLOGY INTO ENVIRONMENTAL TREATY MAKING Tobin L. Freid and Imke Wesseloh

he use of information technology can improve environmental treaty-making processes and result in higher quality agreements. Information technology enables parties to better prepare themselves for negotiations, provides a forum for value creation, allows more direct observation and participation by nonnegotiators, affords negotiators currently unavailable opportunities for discussions between negotiation meetings, and enhances post-negotiation implementation. Using information technology poses challenges when employed in this context such as reducing accountability for comments, creating complications in translating comments in a timely manner, necessitating appropriation and understanding of new technologies, and decreasing the human element of negotiation. However, these challenges can be overcome and the benefits of using information technology can far outweigh the detriments. The use of information technology in negotiations is just beginning to emerge as a way to enhance traditional processes. Some negotiators have successfully used information technology to conduct various aspects of their negotiations and their experiences can be used to guide future expansion of these tools. The use of information technology (IT) at different stages of the negotiation process as suggested in this chapter is not an exclusive recommendation for the international environmental treaty arena. The concepts described are equally applicable to any kind of negotiation. However, we believe that the international environmental treaty-making process in particular lends itself especially well to

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our model for a number of reasons. First, the large number of parties usually involved in international environmental negotiations makes the negotiation process time- and resource-intensive. Our model can accommodate large numbers of participants and still reduce the time and expenditure of negotiation processes. Second, an on-line discussion setting can facilitate the creation of subdiscussions on individual topics. This is currently very difficult to organize at the face-toface negotiations because every country wants to be included in every discussion. The on-line format allows all parties to participate simultaneously in all subdiscussions that they deem important. Even if particular participants do not contribute to certain subdiscussions, they can follow along at their convenience. Third, because environmental problems are complex, they can never be considered in isolation from each other or other treaties and the stakeholders for each treaty are numerous and diverse. Opening up the environmental treaty process to involve people familiar with other treaties and the wide range of stakeholders can steer the treaty-making process to a more effective and more holistic outcome. Fourth, science plays a crucial role in environmental treaties. Information technology makes it possible to obtain answers to scientific and technical questions during the discussions and ensures that everyone has access to the same information. Using IT, negotiators can also build scenario models to project the effects of the policies they are discussing and immediately see if they are reaching the desired targets. In this chapter we explore the various ways that information technology can be used in international environmental treaty processes and the considerations that negotiators must take into account when using such technologies. First, we will discuss how information technology can be used in a generic negotiation process, including the need for a facilitator and basic technological capacity. Then we will consider each phase of the negotiation process—prenegotiation preparation, between-meeting activities, and treaty implementation. We conclude with a brief discussion of the challenges and benefits of using information technology in international environmental negotiations. During the course of our research, we contacted the secretariats from all of the major environmental treaties that have been negotiated in the past three decades as well as a number of consensus-building organizations and computer software companies and draw from their experiences where applicable.

Using Information Technology to Improve the Negotiation Process Information technology offers many new opportunities to enhance current environmental negotiation processes by guiding negotiators through the preparation


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process, allowing negotiators to explore issues between meetings, and making postnegotiation implementation transparent and more effective. In this chapter, the term information technology is used as a generic term that includes software and systems applications, electronic mail (e-mail) and Listservs™, the Internet, web pages as on-line information repositories, and emerging, interactive negotiation software (see Glossary for definitions). Some sections of this chapter refer to specific software applications; other sections treat information technology as an umbrella term that may encompass many applications. We do not endorse any particular product; we mention them in this chapter to illustrate the types of technology that are currently available or are being developed. It is necessary to keep in mind that negotiation processes conducted through technological means alone cannot generate the trust, accountability, and sense of responsibility that traditional face-to-face meetings foster and should, therefore, be viewed as augmenting international conferences and meetings. Information technology can assist groups to build on the trust formed at meetings and continue to move the issue ahead at minimal economic cost and through a variety of means.

An Illustrative Case: Climate Change Negotiations The on-going negotiations on protocols to the Convention on Climate Change signed at the Rio Conference in 1992 provide an opportunity to discuss how international environmental negotiations could be improved through the use of information technology. Parties to the treaty recognized that more specific goals and mechanisms were needed than were originally contained in the treaty and called for a protocol to be negotiated in Kyoto, Japan in late 1997. Parties came with strongly ingrained positions and widely divergent opinions on solutions. Little progress was made until the last day when negotiators managed to forge an agreement and patch together a vague protocol. Everyone recognized the need to continue negotiations to determine details on a few major points, including a greenhouse gas permit-trading regime and mechanisms for involving developing countries. The parties agreed to meet 11 months later in Buenos Aires, Argentina to negotiate the specifics of these mechanisms. During the 11 months, the negotiators had little contact with each other and by the time they got to Buenos Aires, the issues had not progressed significantly. In the end, negotiators reaffirmed the need to resolve the issues and set a date two years in the future. If the negotiators to this treaty had used information technology as we are proposing in this chapter, they could have made significantly more progress in the


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same amount of time, creating a more cohesive agreement and implementing it at least two years earlier. Before the Kyoto meeting, the Secretariat would have hired a facilitator to run the information technology-based portions of the process. The facilitator would have created preparation questionnaires and role-plays and posted them on the Climate Change Web page or sent them out on disk to the participants. The meeting in Kyoto would have focused on establishing personal relationships, trust, and a common understanding of the issues and the goals of the process, as well as putting the major issues on the table. After the initial meeting, web-based discussions would have been used to explore options and packages, conduct joint-fact finding activities to clarify issues, coordinate with other relevant treaties or projects, and eventually develop and comment on drafts. Separate on-line discussions could have taken place on permit trading or the level of developing country involvement and all negotiators could have weighed in on those issues simultaneously. Non-governmental interests and the general public could have had access through the web to some of these discussions and participated as determined by the Secretariat and facilitator. By the time the negotiators met at Buenos Aires, they would have been ready to negotiate the final agreement and work out sensitive issues that could not be resolved through technology-based processes. Once the protocol enters into force, the web could be used to inform parties and the general public of related issues and can even be used to enforce reporting requirements. This is just an example of how information technology could be used to increase the efficiency and decrease the timeframe for international environmental treaties. The range of technology and the goals of the parties will determine the manner and extent to which information technology can be used in each case.

Logistics The Need for a Facilitator To be successful, the technology-based phase of negotiations should be moderated by a neutral facilitator familiar with the technology as well as with the particular topic and participants. While traditional environmental negotiations are chaired by the secretariat or the country hosting the negotiation, remote processes have no obvious host. However, the need for some central entity to guide discussion and enforce the ground rules is just as necessary. Even where a secretariat exists or a chair has been designated from among the parties, a neutral



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facilitator is needed to run the logistical aspects of the process and to help the group move towards their goals. In this chapter we use the term “facilitator” in the singular but in reality the workload would necessitate a team of trained facilitators to handle the workload at certain stages of the process. One job of the facilitator would be to establish the ground rules for the processes. These may include ground rules used in traditional settings, such as being respectful of everyone else and sticking to the topic, or special rules suited for the technology-based discussions, such as setting a minimum number of times a participant must check in at the on-line discussions or deadlines by which discussions would end. The facilitator would moderate any on-line discussions to ensure that they remain focused. Facilitators also may edit or summarize the comments made by the participants, authorize access to the process, decide if it is appropriate to have anonymous discussions, or other content- or process-oriented activities as empowered by the official chair. The facilitator must work very closely with the chair to maintain legitimacy and to ensure that the end result is acceptable to the parties that will ultimately take responsibility for the final product. Capacity Building Capacity building has two main aspects: access to technology, and logistics and funding. Access to Technology. In 1992, the year of the Earth Summit in Rio de Janeiro,

the Internet was not a major feature of the information-communications technology landscape. Now, however, the Internet has become the most promising vehicle for increased access to and dissemination of information due to its compelling visual presence, its ease of use, and its universal standards. The Rio Declaration, Agenda 21, and the Earth Charter all include principles that call for cooperation and concerted efforts to support capacity building for the exchanges of information and the bridging of the data gap, that is, the information haves and have-nots. Figures 9.1 and 9.2 illustrate the relatively high rate of basic worldwide connectivity. Several factors are common to many of the information-poor nations according to a technical assessment made by the Policy Research and Strategic Planning Institute for Ghana (Together Foundation, 1998). They include • • • •

Poor physical facilities Lack of well-established centers dedicated to developing software Poor or nonexistent procedures for equipment procurement Inadequate maintenance of hardware


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FIGURE 9.1. WORLDWIDE INTERNET CONNECTIVITY.

Internet Connectivity Connectivity No Connectivity

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For the purpose of this chapter it is necessary to distinguish between access for members of the negotiating team, which seems to be less of a problem, and the participation of the general public and non-governmental interests (NGI) including nonprofit and for-profit organizations. We assume here that the diplomatic tier in all nations has at least working access to a computer and a telephone line that has a reliable bandwidth and the necessary storage devices to capture and temporarily hold information.



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At the level of public and NGI participation the picture looks somewhat darker. Although Internet access has been growing steadily in all nations, according to the International Telecommunications Union (see Together Foundation, 1998), the gap between the latest technology in the developed and highly connected countries and the technology to which the developing world has access to is widening. The Internet works best with advanced phone connections like ISDN modems. IRIDIUM (the industry consortium headed by Motorola that developed a satellite-based cellular phone system) argues that these infrastructure obstacles can only be overcome with wireless solutions, as soon as they become technically and economically feasible. Following the recommendations of a UNDP Technology Revolution Study (Together Foundation), governments of developing nations should prioritize the development of reliable telecommunications networks because the study found that the quality of the telecommunication infrastructure and connectivity has become a major factor in attracting foreign direct investment. However, in some political regimes, governments may be reluctant to give up control of information, which poses another challenge.1 All the issues stated above pose a challenge to the proposals of this chapter, which require extensive investigation beyond the scope of this discussion. While acknowledging the technical realities for the model we are proposing, we will assume a basic level of computer and Internet access including reliable phone lines. We also recognize that over the past few years several international organizations, non-governmental organizations, and foundations, such as the Together Foundation, have been formed with the mission of increasing the access to information and communication technology worldwide and we expect these efforts to continue. Logistics and Funding. Before our suggestions for a new model of IT-supported

international environmental negotiations can work effectively, many logistical issues must be taken into consideration. These include choosing the right software, creating web sites and links, establishing e-mail networks, and training staff to maintain the system. Furthermore, participants and negotiators will need training or at least instructions in how to use the suggested information technology. Though the logistical details seem to pose major challenges, IT is slowly becoming an integral part of many complex processes. Because modules of the model we are suggesting here can be integrated into the process step by step, the initial barriers may in fact be very small. The necessary level of investment needed to build the IT infrastructure and pay its associated maintenance costs varies greatly depending on the level of participation desired, the complexity of the programs used, and the availability of qualified facilitators who are also familiar with the technology. These costs should


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be weighed against the substantial savings that the use of IT offers including reduced need for couriers, faxes, conference calls, and overnight mail services. IT can offer substantial long-term savings if international environmental negotiation processes are generally more efficient and shorter. If a better treaty can be developed through three or four meetings in a three-year period instead of through five or six meetings in a ten-year period, international organizations and individual countries will save significant resources. Additionally, funding for reporting requirements can be reduced significantly by posting all reports on the web instead of making and shipping several copies of voluminous reports.

Importance of Prenegotiation Activities in Negotiating Environmental Treaties Negotiation experts often claim that effective preparation is the most critical element in achieving negotiation objectives (Lewicki and others, 1994). Because this chapter explores the possibilities offered by information technology and emerging software to make collaboration possible—negotiation or discussion over time and space—it is necessary to describe the elements that constitute a good and effective preparation phase. Specify and Prioritize Goals First of all, parties must know exactly their own goals and those of their constituency before they enter a formal negotiation process. Once negotiations begin in official settings, parties can often feel overwhelmed by the amount of information, arguments, offers, and trade-offs (Lewicki and others, 1994). Negotiators who have not clearly identified and prioritized their goals may find it difficult to remain focused on their interests and may agree to suboptimal deals. The most important element in identifying specific goals and priorities is the intraparty negotiation. A negotiator who is representing a constituency is accountable to that constituency. If he or she fails to include concerns of members of the constituency in a deal reached in the formal negotiation, he or she is likely to meet considerable opposition when returning home. Furthermore, parties should think about possible packages they are willing to accept before entering a negotiation rather than negotiating item by item. Discuss and Consult with Other Parties Before entering formal negotiations, the issues and the nature of the conflict must be thoroughly understood by all parties. It is important not only to discuss and



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assess the actual problem and make sure that everyone is familiar with the intricacies of an issue, but also to gain an understanding of what the other parties are aiming for, what their frame of thinking is, their limits, their current situation, their history in similar cases, and so on. These analyses are frequently neglected in negotiation preparation and negotiators are often sent to meetings with only a few options on predetermined issues. This limits the negotiators’ ability to find mutually optimal solutions. For example, one party might raise an issue or make a proposal that approaches an issue from an angle that is new to other parties. Those who did not do their homework or think about other parties’ interests and situations will find themselves in a position in which it is difficult to evaluate new possibilities quickly and accurately. This will put them at a disadvantage. If parties feel they are insufficiently prepared to discuss an issue they may ask for a delay, which would make the negotiation process slower, or they may even refuse to include a new item in the agenda because they cannot discuss it adequately. Current Limitations of Preparation The above suggestions for preparation are only a brief glimpse of what preparation would actually entail. These activities rarely happen due to the general time constraints felt by all higher-level officials. Furthermore, negotiators often feel no need to discuss, prepare, and collaborate before a negotiation. They may feel that the “real thing” only starts with the first round of negotiation. The preparation that does occur usually involves identifying positions for and against certain actions, which stifles creativity and leads to inflexibility at the negotiation table. Between meetings, secretariats are sometimes reluctant to encourage communication among the parties to avoid issues of mistrust that arise when some parties feel they are being left out of the unofficial discussions. As we will demonstrate, the use of information technology offers new possibilities for transparent communication and discussion between parties. The dearth of communication between meetings coupled with the time constraints at official meetings diminishes opportunities for exploring alternative solutions.

Use of IT to Perform Preparation Activities such as Intraparty Negotiation Preparation involves understanding the negotiation problem, issues and options, and prioritizing goals. Before the actual negotiation begins, it is essential that the parties individually understand their own interests and priorities. Often there is


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little or no communication among various parts of a government (for example, finance minister and environment minister) which leads to narrow or contradictory positions and difficulty obtaining domestic ratification once a treaty is concluded. Sometimes actual negotiators or negotiating teams do not have a clear process for evaluating the issue before them. Lack of preparation leads to frustrating negotiations and less-than-optimal agreements. It is more difficult to come to agreement if the parties do not understand their own underlying interests and priorities. This understanding can be strengthened by using a variety of information technologies. Once an issue has been identified and parties have agreed to negotiate an agreement, negotiators can use electronic questionnaires prepared by the facilitator and chair to think in an organized fashion about an issue. The negotiator may have others in his or her constituency or government fill out the questionnaire to get a better understanding of the differing interests within the country and to educate them about the issue and the difficult choices ahead. Another option is to use currently existing programs that help parties define the issue and prioritize interests. These programs, such as INSPIRE, a negotiation support system developed by the International Institute for Applied Systems Analysis (IIASA), ask the user to rate certain issues and then walk the user through certain scenarios to find the optimal level of agreement. This can be shown through easy-to-understand graphs, maps, or charts that can be updated as new information becomes available or as interests shift. INSPIRE in particular, offers software that carries out the function of “preference elicitation” by constructing a utility function that is a simplified measurement of values and priorities. “Preference elicitation” is a simple three-step process during which the user is presented with issues and options, and is asked to assign weights to each of them separately. Then a table containing all the issues is displayed and the user is asked to distribute 100 points among all the issues. Next, a table with the salient options for each issue and their ratings is displayed. This table is generated separately for each user. The third step during this preference elicitation presents the user with a set of packages that the user has to rate again. These ratings are stored by the system but not displayed to the user. It should be kept in mind that this program adds most value if performed after as many options as possible have been created in intraparty negotiations. Suggestions on the use of IT for brainstorming sessions to increase the overall value of the agreement for each party are outlined in the next section, but they are equally valuable for intraparty preparation. This particular information about the utility function of the parties involved is one way to visualize the loss in utility if one party makes concessions, regardless of whether it is used in intraparty negotiations before the actual negotiations or in informal preparatory negotiations between parties. It can be a valuable tool



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to clarify priorities and includes graphical presentations that show the impacts of any concession a party may make.

Use of Internet and Information Systems in Face-to-Face Negotiations Face-to-face meetings are valuable for identifying issues and interests but there is often not enough time to fully explore all the options. Additional information is often needed before the discussion can continue. Meetings are expensive and require a great deal of logistical support, making frequent meetings impractical. Meetings routinely end only with the decision to hold another meeting in the future, ostensibly to give the parties time to develop their ideas and find additional information. However, all too often negotiators do not focus their attention on the issue between meetings and may not even have contact with the other negotiators so that when the next meeting occurs, no progress has been made. This makes meetings inefficient and draws the entire negotiating process out over years and sometimes decades. A good example is the 11-month period between the climate change negotiations in Kyoto in December 1997 and the fourth Conference of the Parties in Buenos Aires in November 1998. The general opinion of media observers and those closely involved with these negotiations was that very little was achieved during this period in terms of the development of recommendations for specific action. In general, access to the meetings is restricted, locking out potential sources of creative ideas and constituencies such as environmental and scientific nongovernmental organizations and representatives of the corporate world that will be directly affected by the decisions made by negotiators. Also, these meetings can be stressful as participants struggle to get their issues raised to the forefront with few opportunities to take time out and reflect on the real interests and proposed solutions. When participants identify information gaps it is often difficult or impossible to gather the needed information during the course of the meeting. Discussions continue without vital information or they stall, as parties refuse to discuss the issue in the absence of the necessary information. Information technology can address these shortcomings and make the entire process more efficient, less expensive in the long run, and faster. On-Line Discussions In between face-to-face meetings, information technology can be used in a variety of ways to build on the discussions from the meeting and help make future


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meetings more efficient and productive. Any issues or discussions that were not laid to rest at a meeting could be continued through web-based threaded discussions. Participants could choose to follow any or all of the discussions, depending on their interest level. A benefit of conducting discussions on-line is that a written record of all discussions is automatically created. At any time, participants can review previous discussions, track progress, and take stock of commitments. Another option is to conduct real-time multilogues over the Internet using a chat room format. However, this setup is less than optimal because everyone would have to be on-line at the same time; it is much more difficult to organize the conversation to avoid tangents and misunderstandings; and all messages would have to be translated simultaneously. Threaded discussions take place on an on-line bulletin board. Users can post messages under certain topics and read messages that have been posted by other participants. The comments are threaded together with electronic links so readers can follow the linear conversation. As new topics emerge, related comments are threaded together under the new topic. Currently, threaded discussions are stored into individual electronic files, which are awkward for sorting and finding information. For large discussion forums, such as the ones recommended here, it would be useful to store each message in a database that would allow long-term storage of large quantities of messages and allow the messages to be sorted and aggregated along many different dimensions. This would also facilitate tracking the number of times particular messages have been read and generated responses. Furthermore, threaded discussions allow participants to contribute at their convenience, the facilitator and participants can organize discussions, and translation can happen on a daily basis as opposed to by the minute. Threaded discussions also allow participants to take the time to think about what they are writing before posting a message, which can reduce misunderstandings and improve clarity of statements. To ensure most effective preparation and use of information technology, some system of monitoring participation has to be developed. In establishing the initial ground rules, the facilitator has to make clear that parties are obliged to participate in these on-line discussions. Furthermore, the facilitator has to develop a system that checks on consistent involvement of parties. Another challenge for this process and for the facilitator is how to make sure everyone reads the inputs into the on-line discussion forum. If discussions are conducted without the participation of all members, some participants may feel left out of the evolution of the ideas. Another task for the facilitator is to prepare



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executive summaries of all the information that has been posted on the web page to allow participants to get a quick overview of the discussions. In international environmental negotiations especially, the sheer number of hours for discussion is likely to be quite substantial. The facilitator may help structure exchanges by limiting the length of comments or number of comments, though this is time-consuming, difficult to enforce, and may strike some participants as censorship. Another way to keep track of all the information exchanged in on-line discussion is to write up and post or automatically e-mail a weekly progress report. Brainstorming Participants can brainstorm using information technology to generate options for solving a problem while addressing the major interests of all the parties. Like the general discussions mentioned above, participants could brainstorm through online threaded discussions that the facilitator can organize in a variety of ways (for example by topic, by priorities, by interests, by solution, and so on). Parties can contribute as many ideas as they desire under any of the categories within the guidelines set by the facilitator, satisfying their needs to be heard that sometimes make face-to-face meetings stressful as parties vie for floor time and lose sight of the ultimate goal. Brainstorming sessions can also be conducted through the use of various programs that are specifically designed for this type of activity. Some programs help participants evaluate the effects of particular ideas while others simply guide participants through the creative process while leaving judgments and evaluations up to the participants. Contributors can be identified by name, country affiliation, organizational affiliation (for example, environmental minister, committee on economic impacts, non-governmental organization), or other relevant affiliation in accordance with the facilitator’s judgment on what will generate the best ideas while maintaining the integrity of the discussion. An example of available software is Ventana’s GroupSystems products. This software can be used either in a face-to-face meeting or in a virtual setting with participants entering their ideas at different times from different places. Different parties post their interests, offers, and ideas for comment by the other parties. The options suggested by the negotiators can be listed as topics in Group Outliner and then organized into subtopics, for example the advantages and disadvantages of each option; negotiators can then enter their ideas under each heading. Discussions using information technology may include anonymous participation. If negotiators wish to introduce ideas that have not yet been approved


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by their constituencies, anonymity can create a safe environment for creating new solutions. This technique is also helpful when trying to limit political positioning or level out inequalities. However, anonymity discourages accountability and is therefore not beneficial in most discussions. One difficulty with the anonymous approach is that participants may exaggerate their views or state them more aggressively (Ozawa, 1991). The facilitator can decide under which circumstances anonymity is desired. The on-line forum can entice participants to act differently than they would in a face-to-face setting. In traditional negotiation meetings, personality plays a big role in determining who gets heard and who is taken seriously. Sometimes louder or impatient participants are more effective in getting their issues on the table. Some negotiators are intimidated by the process or need more time to formulate their ideas before stating them and, therefore, are less effective in driving the debate. Negotiators might be reluctant to offer creative solutions in a faceto-face meeting for fear of facing on-the-spot reactions from their peers. Other negotiators who have a tendency to be negative toward new ideas or to purposefully intimidate other negotiators might be kept in check by face-to-face contact and shaming from their peers. On-line discussions and brainstorms allow all participants equal opportunity to participate in an equal tone, with more or less equal urgency. Quieter or more pensive participants may participate more when they can take the time to think about their comments and review what they have written before it is sent out and expect that reactions will also be more thought out over a period of time. Negotiators who tend to make comments in face-to-face meetings without considering their tone or wording may be more conscientious when writing comments at their computers. However, some negotiators might be more willing to respond disrespectfully when they do not have to look their peers in the eye. If a participant is disrupting the process with inappropriate comments or abuse of the system, the facilitator can mitigate these tendencies by talking personally with the problematic party or, assuming the facilitator has the ability to review all comments before they are posted, by returning an inappropriate comment to the contributor for reconsideration. The possibility of hiding disrespect behind anonymity is one reason why building relationships and trust through initial face-to-face meetings is so important. An experimental study at the University of Trento, Italy (Rocco, 1998), showed that the effectiveness of communication depends on components of the social context, like trust, shared values, and pre-existing group identity. Further findings were that trust can be transferred from a face-to-face to a computer-mediated context. The implication of these findings for practice is that interaction through information technology can only be optimal with complementary face-to-face



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meetings. The study suggests that face-to-face meetings should be introduced to support critical stages in the negotiation process.

Creating Value Negotiators often view the negotiation process as a zero-sum game in which one party wins and the other loses. In complex, multi-issue negotiations, such as international environmental negotiations, parties often take each issue one at a time with a win-lose attitude for each case. This type of approach increases hostilities among the parties and causes negotiators to hold onto their positions very strongly so they won’t lose. In viewing the solutions in isolation, negotiators miss out on opportunities to make all parties satisfied through mutual gains. In contrast, negotiators who know their priorities and interests and can view all the solutions together as a package are more effective at creating total solutions that address everyone’s interests. Sometimes this involves bringing issues into the discussion that were not originally under negotiation. For example, in an environmental negotiation about limiting transboundary air pollution, downwind nations could offer to buy electricity from their upwind neighbor’s power plants once emissions have been decreased. This results in decreased emissions and the need to build fewer domestic power plants (good for downwind nations) and provides stable markets for more expensive, efficient power plants (good for upwind nations). In this example, both sides must understand what their underlying interests are to be able to creatively seek solutions that are not initially on the negotiation table. Through this process, the parties create value, which would make an agreement even more desirable than would otherwise be possible. Linking separate issues once the parties have developed options for each issue can also create value. When looking at the agreement as a whole, parties are more willing to compromise on issues that are low priority for them (but high priority for others), if they are satisfied with what was agreed upon regarding their high priority issues. Schedules, funding, and other issues that are not topic-related can be used to link issues and create more value for the parties. Solutions for all of the issues can be grouped into packages wherein the overall utility for each party is higher than on any single issue. Naturally, there are advantages as well as disadvantages to linking the issues and seeking agreements for packaged solutions. The most prevalent disadvantage of linking issues can only be overcome with a strong, neutral facilitator or chair (Susskind, 1994). For instance, when deciding what concessions to make to gain something else in a package, no party is likely to reveal too openly what they are really willing to accept because other parties may use the information against them


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to achieve more than they otherwise would have. The neutral facilitator would have to meet privately with the parties to identify on a confidential basis what packages are acceptable to the parties without any party revealing its preferences. Parties can use ideas generated through face-to-face and on-line brainstorming to construct packages of solutions to issues in which the highest interests of each of the parties are met and new value is created. Because discussions and brainstorming on all issues can be conducted simultaneously, parties can see how issues and solutions fit together and can evaluate where value can be created among the solutions more easily than during traditional negotiations in which only one issue is discussed at a time. Programs exist that can help groups create and evaluate packages and rate them against an optimal package based on the utility each party places on certain issues and interests. As described in the section for preparation, the INSPIRE model and the creation of a utility function can be used to graphically show optimization through maps or charts to allow participants to see how the package relates to others in terms of meeting their interests. Computer programs can also be used to model how various agreements will affect the environmental problem over time, giving negotiators a visual demonstration of how far different options will take them towards their environmental goals.

Joint Fact Finding Joint fact finding is a process wherein all the parties agree on ground rules for developing scientific and technical information. This may include creating a neutral team of scientists to do the basic research or build models that will be accepted by all parties. This process can improve decision making because it eliminates the conflict among parties who have each developed their own scientific information and do not trust the science of other parties. Participants can conduct joint fact-finding activities using information technology to gather more information in which all parties can have confidence. Criteria and categories can be established at meetings or on-line to guide the search. A call for information on the subject can be posted on the web site or sent out through message management systems that enable e-mail messages to be sent to many recipients simultaneously (also known as “Listservs” or mail lists). A web page can be used as a central repository for all information so that all parties can access information immediately, eliminating opportunities to withhold information and the mistrust that correlates with those opportunities. As new information raises new questions, the search for information can continue to evolve until all parties are satisfied that they know enough to take action. One chal-



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lenge with this approach is assuring the quality of the information that is received. Reports and scientific claims generated and disseminated through this process must receive the same level of peer review as traditional scientific studies and the credentials of the submitters must be legitimated. This can be moderated by the facilitator or through a scientific body specifically established by the negotiators to serve in this function. Also, web-based negotiations can be linked to scientific web sites for easy referral if participants have questions. The Convention on Biological Diversity uses a web-based clearinghouse to promote “technical and scientific cooperation at all levels . . . (and facilitate) access to and the exchange of information on biodiversity around the world,” (Biodiversity Homepage, 1998). The clearinghouse is based on a decentralized structure including national, regional, thematic, and administrative focal points. All of the information is organized on a publicly accessible web page that had been viewed by 33,976 people between June and November 1998. The pilot phase of the clearing house is coming to an end and future priorities are to increase the use of IT, including establishing an e-mail newsletter, a web search engine to research biodiversity related issues, and a CD-ROM for people who do not have access to the Internet. The ultimate goals of the clearinghouse as listed on the web page are • Harmonization of formats and structures for collecting and disseminating information, key words, attribute lists and terminology • Dissemination of information derived from future national biodiversity reports • Increasing access to and transfer of relevant technology and methods of distance learning • Development of CD-ROMs for training purposes

Participation by Non-Negotiators In pre-Internet times, when all documents, like meeting summaries, progress reports, and new scientific information, were sent out in hardcopy via courier or postal service, only very few people had access to the repository of printed material. Through information technology, however, processes can be opened to a wider audience to include non-governmental organizations, businesses, secretariats of related treaties, and the general public. Greater access improves accountability and builds support for eventual implementation. Ultimately, citizens of the world will implement treaty decisions. For example, reductions in greenhouse gases will depend on individual purchasing and energy use attitudes and corporate investment in more efficient or alternative


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technology. Opening up the process beyond the negotiator level not only increases awareness, but also enables stakeholders to give more attention to the issues prior to the presentation of a finalized treaty. For example, if the corporate world has access to detailed information on the issues at stake, they have more time to prepare a strategic response and might be more likely to be proactive. Furthermore, many parties traditionally left out of negotiations have creative ideas for solving problems, more targeted resources for analysis and research, and experiences or knowledge that allow them to see a bigger picture than negotiators who are isolated in a purely diplomatic or governmental arena. Allowing secretariats of related treaties and international regimes to participate in the process could result in better coordination among the regimes and more holistic approaches. A current example of how environmental treaties are often not sufficiently coordinated is relationship between the Montreal Protocol and Kyoto Protocol. Some alternatives for ozone-depleting substances encouraged by the Montreal Protocol have substantial global warming potential and are therefore substances that would be classified as “controlled” under the Kyoto Protocol. These two Secretariats are now beginning to work together to find joint solutions but many other conflicting regimes are never reconciled. Different levels of on-line discussions can be limited to particular people through the use of passwords. The facilitator has to decide on the selection criteria for participants at the different levels in on-line discussions, for instance, official negotiators only, recognized experts and non-governmental interests, or the general public. Besides discussion groups, the actual face-to-face negotiation may be followed “live” if posted on the web site. The negotiations for the fourth Conference of the Parties (COP4) of the Climate Change Convention in Buenos Aires in November 1998, were posted live on the COP4 web site which allowed more people to observe the actual negotiations. Links can be created to related sites, leading people who are interested in environmental issues to the negotiation. As with the discussions among negotiators, comments made by participants in open discussions may or may not be attributed so as to control biases for or against certain groups or people. The facilitator or a subcommittee of the parties may establish criteria for involving non-governmental interests that desire to be included in the on-line processes. One issue that arises as these processes are opened up to other groups or the general public is that, generally, organizations and ordinary citizens in developing countries do not have access to the Internet and views from industrialized countries may be overrepresented. Another issue will be the increased opportunity for nongovernmental interests to disseminate their propaganda, especially if comments are not attributed. For example, the Global Climate Coalition, representing their



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corporate members, was very sophisticated in using all mass media opportunities to lobby against the Climate Change Convention because they had a vested interest in not reducing their emissions of greenhouse gases. Information technology will provide yet another avenue for these types of organizations (including organizations that support the treaty such as Greenpeace) to influence the process, regardless of their scientific integrity or economic interests. The facilitator will have to be vigilant to maintain the integrity of the process without sacrificing creativity and visibility.

Draft Preparation Information technology can help groups develop and comment on text drafts in preparation for final face-to-face negotiations. Working with a single-text draft or being able to compare a few drafts side-by-side very quickly can help groups move towards consensus and clarify issues to be resolved (Fisher and Ury, 1991). Facilitators can post drafts reading only on a web page with an accompanying area for comments or allow actual mark-ups on-line. The United States Department of Energy used the Internet five years ago to revise drafts of its clean-up agreement for the Rocky Flats Environmental Technology Site which is heavily contaminated from years of nuclear weapons material production, saving thousands of dollars in faxes, conference calls, and overnight mailings. A single-text version of the agreement was posted on the web page and participants could mark up the text on-line (Barker, 1998). E-mail was used to circulate drafts and solicit comments during the National Dialogue on Ecosystem Management. The comments were posted on the Dialogue’s web page where all participants could review them. In both of these examples, participants held face-to-face meetings to mark-up and approve the final draft. According to the facilitators, the process of using IT to work on the drafts before the final meetings made the final drafting stage more efficient and focused (Barker, 1998).

Uses of Information Technology in the Implementation Phase Once a treaty has been negotiated, information technology can make some aspects of implementation easier, cheaper, and more effective. For example, many treaties include requirements for countries to send status reports to the secretariat on a


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regular basis. These reports could be posted by the countries directly onto the web site, saving some administrative costs both for the country and the secretariat. As mentioned above, the Climate Change Secretariat is already posting the Annex I first National Communications on the Internet to reduce costs. According to the Climate Change Secretariat “the Annex I first National Communications amount to thousands of pages of text, figures, and tables in several different languages. Collectively, in hard copy, they are impractical to transport, to access, and to compare. These problems are easily solved by publishing the National Communications on the Internet where they can be accessed efficiently.” This also makes the reports much more accessible to watchdog groups and the general public. While many countries may not be very comfortable with having their reports so visible, this procedure could provide an incentive for countries to actually follow up on their commitments so as to not be embarrassed when other countries, interest groups, and their citizens read their reports on the web. Additionally, countries can share information about implementation procedures and success stories so that others can benefit from their knowledge. Information and graphs showing national and global progress toward solving the environmental problem can be posted and updated to calibrate actions with goals, potentially notifying parties that more steps need to be taken than were originally negotiated.

Considerations for Using Information Technology Using information technology to conduct negotiation activities has various benefits and challenges associated with it that must be considered when determining if and how such technology is used in each case. Challenges Despite the myriad benefits to using information technology, the challenges that must be overcome are neither insignificant nor intractable. One obvious difficulty that is faced even in traditional meetings is the language barrier. Instead of having a team of translators available at one time in one place for a traditional meeting, translators will have to work on an on-going basis to translate all the messages posted on the web-based discussions into the five official United Nations languages. However, those translators can be located anywhere in the world and have the benefit of a time lag to ensure accurate translations. Also, translation programs exist that are about 80 percent accurate and these can be used to do a bulk of the translation; real translators can review and correct the computer-generated versions.



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The lack of the human element in on-line negotiation processes has been shown to reduce the quality of some negotiations, especially if the parties have not had a chance to meet and develop trust. Face-to-face contact provides a richness of cues and information, body language, tonal variations, and pauses, all of which become part of the conversation. Especially in the international arena, where language issues may impair communication, nonverbal signals are very important. Additionally, negotiators tend to be conservative people who have come to expect a certain culture of doing business, including social activities, and will need a lot of encouragement to embrace additional approaches to negotiation. However, as has been stressed several times here, IT can only augment the negotiation process and not fully replace face-to-face meetings. One of the major challenges will be the fact that some countries do not have adequate computer equipment or reliable telephone lines to transmit the data, though the number of governments in this predicament are fewer each year. However, it may be that the money saved by instituting a more efficient negotiation process can be used to build the necessary infrastructure. Alternatively, wireless satellite links may address this problem. These countries are in a disadvantage in many ways without Internet connections and investing in such systems will allow them to be more effective players on the international scene. Benefits One major advantage to using information technology in environmental treaty negotiations is the adaptability of this new technology to individual negotiations and the flexibility it affords the negotiators by increasing communication opportunities. The technologies are generally very easy to use with a minimum of training. The equipment needed is little more than a desktop computer and a modem. This can level out the inequality among states with more resources and those with fewer because, unlike traditional meetings, the countries with the greatest number of delegates do not have an advantage in the on-line environment. Negotiators for poorer countries that have responsibility for many other negotiations can participate in on-line processes at their convenience. Information technology can promote creativity and help negotiators create value. Creating a forum for low-pressure brainstorming and discussion in which everyone has an equal opportunity to contribute helps generate ideas and build packages together. As mentioned above, the technology can allow some discussions to take place without attributing particular comments to particular people, thus increasing their comfort in making creative or bold suggestions. Creativity and room for advancing solutions is currently very limited in environmental negotiations. IT can have profound impacts on the quality of future agreements.


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The lack of the human element can sometimes be a disadvantage, as mentioned above, and sometimes an advantage. In delicate negotiations, an on-line discussion can reduce the emotional temperature of the parties and parties cannot focus on each other’s presence. They are forced to focus on the substantive issues on the screen. Other advantages include the convenience created by enabling each party to respond or participate in on-line discussion when they want; the value in permitting each party to reflect on their view and position before responding; and the luxury of having the time to explicate carefully the reasons for a position in an insulated environment. Also, using the Internet for discussions not only extends the meeting time available for multilogue and deliberation, but also provides a written record of all discussions. Information technology can increase the interaction of negotiators with outside experts and stakeholders. In international environmental treaties in which scientific misinformation or ignorance can slow down or misdirect policy decisions, having immediate access to information through information technology can improve the scientific foundation of future treaties. If negotiators can depend on a centralized and widely accepted source of scientific information, they can focus more on developing policy prescriptions and less on arguing about the scientific data. Furthermore, allowing direct observation and participation from non-governmental interests and the general public increases the pool of expertise and ideas and exposes the negotiators to more accountability. This can also help educate domestic constituencies, making eventual ratification easier. Perhaps most importantly, information technology can reduce the time it takes to reach an agreement and improve the quality of that agreement. Essential phases such as preparation and inter-meeting discussions are now virtually nonexistent, leading to inefficient uses of time and resources. Through the use of information technology, negotiators will be more educated about the issue and their own interests; the process will be more transparent for non-negotiators, such as NGOs and other treaty secretariats; and more creative solutions will be put on the table. With relatively minor investments in information technology and a shift in traditional attitudes toward the process of treaty making, negotiators can achieve better designed, scientifically based treaties that maximize cooperation and minimize losses in significantly less time than current processes.

Conclusion Using information technology in international negotiations is still in its infancy at the moment, but this emerging issue is getting more attention. For instance, the Climate Change Secretariat is using e-mail and their web site extensively for information exchange. According to Janos Pasztor who is responsible for



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Information Support in the Climate Change Secretariat, they have not made use of more sophisticated, interactive, on-line negotiation tools but they have considered it and are moving in that direction. This chapter has described areas in which information technology can be used to augment traditional international environmental treaty negotiations. Parties to negotiations have often had insufficient opportunities to prepare themselves to be productive contributors to the endeavor and for the group as a whole to explore and discuss creative solutions to the problem being addressed. The wide variety of computer programs and uses lends flexibility to a sensitive process and provides negotiators with a host of potential tools for designing better treaties. This technology can assist parties in thinking about and prioritizing their own interests and goals. Technology can be used between meetings to guide the parties through brainstorming sessions and discussions to create new value and bring new incentives for ratifying a treaty. This same technology can make the negotiation process more accessible and transparent for negotiators and outside stakeholders alike. Greater transparency in the implementation stage can also lead to greater accountability and, thus, more effective treaties. There are many challenges to implementing a technology-based element to current negotiations but some reallife examples of successful uses of technology in negotiations illustrate that challenges can be overcome. While information technology cannot and should not replace face-to-face negotiation, negotiators should explore the enhanced communication possibilities that the technology offers so that they can achieve more efficient agreements faster.

Notes 1. Other web sources regarding the status of regional connectivity include • Africa: http://www-sul.stanford.edu/depts/ssrg/africa/24connec.html. The page states: “The spread of the Internet is accelerating fast in Africa. In the last few months at least 19 countries have obtained full Internet connections or announced firm plans to do so. These developments mean that over twenty countries in Africa are now ‘on the net’, albeit mostly just in the capital cities. By the end of the year (1996) well over half of the continent should be connected and the remainder will be starting to feel the pressure to join them ever more strongly. Soon the countdown will start to see which African country will be the last onto the net.” • Alliance of Small Island States: http://www.upei.ca/~meincke/aosis.htm. The page states: “This page will provide the most recent information about the provision of Internet Services to members of AOSIS, WWW pages originating from or sanctioned by the members and, samples of pages by other interested individuals and organizations.”


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Glossary BITNET A network of educational sites separate from the Internet, but e-mail is freely exchanged between BITNET and the Internet. Listservs, the most popular form of e-mail discussion groups, originated on BITNET. BITNET machines are usually mainframes, as opposed to personal computers, and the network is probably the only international network that is shrinking. Chat Room* A chat room is an on-line forum where participants can have real-time “conversations” by posting messages on a web page with limited access to others. Home Page (or Homepage) The main screen that can be viewed on the World Wide Web for a business, organization, person or simply the main page out of a collection of web pages. This can contain information, pictures, and links to other sites. Internet The vast collection of interconnected networks that all use the TCP/IP protocols and that evolved from the ARPANET of the late 60’s and early 70’s. The Internet as of July 1995 connected roughly 60,000 independent networks. Intranet A private network inside a company or organization that uses the same kinds of software that you would find on the public Internet, but that is only for internal use. As the Internet has become more popular many of the tools used on the Internet are being used in private networks, for example, many companies have web servers that are available only to employees. Note that an Intranet may not actually be an internet—it may simply be a network. Listserv The most common kind of maillist, “Listserv” is a registered trademark of L-Soft international, Inc. Login Noun or a verb. Noun: The account name used to gain access to a computer system. Not a secret (contrast with Password). Verb: The act of entering into a computer system. Maillist or Mailing List A (usually automated) system that allows people to send e-mail to one address, whereupon their message is copied



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and sent to all of the other subscribers to the maillist. In this way, people who have many different kinds of e-mail access can participate in discussions together. Modem (MOdulator, DEModulator) A device that connects computers and a phone line, that allows the computer to “talk” to other computers through the phone system. Network* A connection of two or more computers via phone lines or satellite connection. Posting system.

A single message entered into a network communications

Terminal A device that allows the user to send commands to a computer somewhere else. At a minimum, this usually means a keyboard and a display screen and some simple circuitry. Usually the user will use terminal software in a personal computer—the software emulates a physical terminal and allows you to type commands to a computer somewhere else. Threaded Discussion* On-line discussions in which users can post messages under certain topics and read messages that have been posted by other participants. The comments are threaded together with electronic links so readers can follow the linear conversation. WWW, World Wide Web, or Web Frequently used (incorrectly) when referring to the Internet, WWW has two major meanings: First, it is used loosely to refer to the whole constellation of resources that can be accessed using Gopher, FTP, HTTP, telnet, USENET, WAIS and some other tools. Second, the web refers to the universe of hypertext servers (HTTP servers) which are the servers that allow text, graphics, sound files, and so on to be mixed together. Source: http://www.matisse.net/files/glossary.html (*except Chat Room, Network, and Threaded Discussion)


Y CHAPTER TEN

ENFORCING INTERNATIONAL ENVIRONMENTAL TREATIES IN DOMESTIC LEGAL SYSTEMS David W. Bowker and Michael Castellano

ritics of the international environmental treaty system have argued that the current negotiating system for such treaties has not provided for effective monitoring and enforcement after they are signed and ratified. As in any field of law, the development of international rules is of little importance unless accompanied by effective enforcement and compliance mechanisms. As Lawrence Susskind has observed, “It would be a mistake to measure success in terms of anything less than tangible environmental improvements, regardless of the amount of time or effort it took to hammer out the legal accords” (Susskind, 1994). This chapter examines the current lack of enforcement and monitoring mechanisms in international environmental treaties and proposes a regime to help improve monitoring and enforcement. Observation of the progression of environmental treaty making over the last several decades suggests that the next logical step for increasing treaty implementation involves the harmonization of international and domestic environmental law. The author proposes that parties to environmental treaties create domestic causes of action based on the treaties, and thus allow domestic citizens and possibly foreign nationals to bring suit in a domestic court for violations of the treaty. If states are required to adopt domestic laws that reflect the content of the international treaty then each state will be held accountable for its own treaty obligations and overall compliance for the treaty regime will be improved.

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Enforcing International Environmental Treaties in Domestic Legal Systems

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The approach advocated below has a number of advantages: it obviates the need for a new and large bureaucracy; it is relatively less expensive than the other alternatives; it preserves sovereignty; it utilizes non-governmental entities; and, most importantly, it improves enforcement which will enhance environmental protection. Once international treaties are incorporated into the domestic legal systems of the parties, domestic police powers can be used to enforce judgments.1 In this way international soft law becomes more than a formal declaration; it becomes enforceable domestic hard law. By requiring countries to incorporate international treaty rules into their domestic legal systems, private individuals can help monitor and enforce the treaty and stimulate the process required to change the behavior of environmental offenders. Additionally, international treaties that mandate domestic legislation provide direct and immediate remedy without resort to interstate claims and, by allowing suits against violators of domestic environmental laws, embody the “polluter pays” principle. The authors of a recent commentary write, “These advantages are such that international policy and state practice have shown a strong preference for the direct accountability of the polluter in national law as the best means of facilitating recovery of compensation for pollution damage” (Birnie and Boyle, 1992). Regulatory and preventative national laws are desperately needed to improve the currently ineffective methods of implementation and thereby raise the level of environmental treaty compliance.

Shortcomings of Current Treaty Implementation Methods The current approach to compliance embodied in international environmental treaty regimes is inadequate. In fact, experts have observed that the “absence of enforcement [of global environmental treaties] is a crucial problem” (Susskind, 1994). While there are more and more treaties addressing international environmental issues, many of these treaties go unenforced (Samaan, 1993). In the absence of adequate compliance and enforcement regimes, environmental degradation continues, despite international agreements aimed at preventing degradation (Nanda, 1995). The United Nations Environment Programme (UNEP) described the state of the global environment in 1982 as grim and experiencing alarming deteriorations. As one expert observed, that assessment unfortunately continues to hold true (Gray, 1990). Despite international efforts to reach agreements and enforce treaties, carbon dioxide levels in the air are increasing; oceans are subjected to ever more sewage, pesticides, PCBs, oil, metals, dredging, and development; lakes are being


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destroyed by acid rain; drinking water supplies are deteriorating; tropical rainforests vanishing; and desertification accelerating. Animal and plant species are disappearing along with the ozone layer (Gray, 1990). Given this state of affairs, it is somewhat surprising how little effort has gone into designing more effective implementation and compliance systems in global environmental treaties (Susskind, 1994). Inadequate enforcement and compliance are the result of several deficiencies in existing international environmental treaties. These include a deficit of authority, a deficit of funding, a deficit of monitoring and data gathering, an inadequate role for individuals and NGOs, and, most importantly, a lack of effectiveness in attaining the established environmental goals. Current treaty compliance regimes suffer from an authority deficit. Nanda (1995) writes, “A major reason for the inadequacy of international environmental law . . . lies, as with other international law institutions, in the structure of the state-centered system.” A typical problem encountered in the field of international law is that there is no institution with the authority and the legitimate power to force a sovereign state to change its behavior, even if it is violating international law. The authority deficit stems from the principle of sovereignty, which holds that each state has exclusive control over its own territory and actions. No state can be forced to comply with its international obligations. Although some scholars have callmd the concept totally obsolete (Bilderbeek, 1992), sovereignty persists2 and it must be addressed in any realistic approach to improving compliance. Many compliance and enforcement regimes depend on a secretariat to compile or collect data, to monitor and publicize compliance efforts, and to otherwise serve as the body responsible for ensuring compliance. The problem is that these secretariats are chronically underfunded, and do not have the capability, even from a human resources standpoint, to undertake the monitoring and data collection necessary to effectively ensure compliance. The United Nations Environment Programme is a case in point. It provides “secretarial services” for at least 14 environmental treaties (Mbuna, 1992). Just the “administrative and housekeeping” services required by these treaties “stretch [the UNEP’s] resources to the limit.”3 This lack of resources exists in dedicated secretariats as well (Mbuna). The end result is that there is insufficient monitoring and data collection for international environmental treaties. Other proposed compliance regimes are based on giving financial incentives or using sanctions for compliance. There are problems with both. Most countries do not have the money or the interest in contributing money to fund an incentivesbased system: “the limiting feature of an international incentive system . . . [is the] mundane problem of funding” (Chayes and Chayes, 1991). Although the Global



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Environment Facility (GEF), the IMF, and the World Bank have funds set aside for environmental purposes, these funds are limited and must be targeted for specific and limited goals rather than serving as the cornerstone of a compliance regime. Environmental protection has not been a high enough priority to expect continued funding at sufficient levels for a compliance regime based entirely on financial incentives to be effective; a long-term approach to compliance must be low-cost. Similarly, compliance regimes based solely on sanctions have not proven to be effective. Chayes and Chayes (1996) have noted that “the effort to devise and incorporate such sanctions in treaties is largely a waste of time.” Missing from most international environmental treaty compliance regimes is a role for NGOs and individuals. Lawrence Susskind and the authors of the Salzburg Initiative have discussed the important role that NGOs can play in creating better treaties through participation in treaty negotiations (Susskind, 1994). NGOs and individuals also may play an important role in securing compliance, as noted by the International Environmental Law Conference (Bilderbeek, 1992). Unfortunately, most treaty regimes, based on negotiation and dispute settlement between states, currently do not allow or provide a formal role for NGOs or individuals. In instances in which NGOs do not have a formal role in treaty compliance regimes, they often still play a vital role in mobilizing public opinion and serving as watchdogs by publicizing compliance failures. This process of shaming has been cited as one of the most effective enforcement tools in international environmental law (Chayes and Chayes, 1991; Susskind, 1994). Members of the IELC have observed that “NGOs can effectively mobilize public opinion only if they have reliable information . . . including access to information that may be in the hands of others” (Bilderbeek, 1992). IELC experts noted a need for NGOs to have a right to information (Bilderbeek). Current regimes do not provide an assured means of this access. These deficiencies in the current treaty compliance regimes combine to render treaties ineffective. In the face of continuing and escalating environmental problems, there is a need for new and more effective compliance and enforcement mechanisms. The authors propose that compliance and enforcements could be significantly improved by incorporating international treaty law into domestic legal systems. The following two sections outline first, the details of this proposal and second, how it would function in practice. Details of the Proposal The objective of this proposal is to strengthen the ability of treaty regimes to secure effective monitoring and compliance with the treaty provisions and to overcome at least some of the deficits characterizing current regimes. Since, as one observer


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has noted, the buzz-phrase in international affairs in the past two decades has been “no new organizations” (Mbuna, 1992), the proposal creates none, instead relying on existing and well-established institutions and organizations. The centerpiece of the proposal is that all international environmental treaties should include a provision requiring every state party to give individuals and nongovernmental actors standing to sue in national courts based on the treaty. In order to make compliance most effective, this standing must extend to at least three types of suits: (1) suits to require the government to incorporate the treaty requirements into national law; (2) suits to require the government to enforce the laws and treaty requirements that have been incorporated into national law; and (3) suits against private actors violating the domestic environmental laws that do exist. In addition, the proposal includes a system of reciprocal access to courts such that each state party will allow nationals of other state parties access to domestic courts to bring the above enumerated suits. Both nationals and foreigners would be allowed to sue in a state party’s courts based on the treaty.4 A second component of the proposal is to allow the International Law Commission (ILC) and the International Court of Justice (ICJ) to be a part of this enforcement system. The ILC would help resolve differences in national legal systems and ensure that the treaty provisions are constructed so as to be compatible with the various legal systems that are involved, by drafting harmonized legal standards ready to be adopted at the national level. This proposal envisions no new role for the ICJ, but anticipates that it would continue its current role as the institution for resolving disputes over treaty interpretation. The ICJ would serve as the appellate body when the courts of a country have produced an interpretation of an environmental treaty that other state parties find to be unacceptable. In certain legal systems treaty provisions do not automatically become a part of national law; legislation is required to make the treaty a part of domestic law. In these countries, individuals would not be able to sue based on a treaty, even to require that the government enact the appropriate legislation, until the treaty had been transformed from international to domestic law. In order to ensure that the treaty requirements are met, there must be a time limit established for states to incorporate the treaty requirements into domestic law. Compliance with these time limits may be brought about by targeted financial incentives and suspending reciprocal access to foreign courts until a country has complied with its legislative duties. Alternatively, since countries often get short-term political benefits from signing and ratifying an environmental treaty (Susskind, 1994) a treaty could require a country to enact domestic legislation as a preliminary step to ratification.



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Finally, the ultimate goal of the proposal is to create “boilerplate” language that would embody its terms and that could be inserted with little discussion or debate, as a matter of course, in every future environmental treaty.

Standing to Bring Claims Under the proposal, any interested private citizen, corporation, or NGO of any of the parties to the treaty would have a right of direct action in the courts of any of the other party states. By allowing individuals to pursue legal environmental claims independently of their government, individuals can help enforce and implement international environmental treaties and may even compel their government to abide by their obligations under the treaty. Direct action by indirectly injured individuals breaks down into two issues: (1) giving to individuals, as opposed to states, rights of action under international treaties; and (2) broadening of the traditional notion of an injured or interested party. The proposal indirectly expands the rights of individuals under international treaties. Traditionally, international legal standing to bring claims based upon treaty law was confined to states.5 Although giving private individuals and NGOs rights of action in international law “would require a significant revision of the International Court of Justice Statute and would again raise the problem of multiple plaintiffs with competing interests,” the proposal necessitates no such evolution in international law (Birnie, 1992). Under the proposal, individuals are not vested with international rights directly under the treaty. Instead, individual and NGO rights will be expanded in the domestic realm by giving them standing to bring a direct action only when the treaty has been incorporated into national law. Further, the proposal broadens the notion of standing with regard to individuals and other legally significant entities and thus “facilitates a more effective approach to the enforcement and implementation of environmental law, primarily through the use of national legal systems” (Birnie and Boyle, 1992). The creation of individual rights under international treaties is not an unfamiliar concept. Analogous rights have been created in treaties dealing with aviation, nuclear energy, maritime commerce, human rights, and the utilization of river basins. These rights have been created in treaties by requiring states to ensure a municipal remedy for damage caused by specified activities (Gray, 1987). This proposal merely requires an extension of this concept to environmental treaties. International law standing will remain unaffected by the proposal as NGO and individual rights of action arise only under the proposed mandatory domestic implementation of international environmental treaties.


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Even if creating private rights under international treaties was an innovation proposed here, there are arguments of principle that environmental rights should be accorded to individuals and organizations and should not rest upon statehood. Based upon the unique importance of the environment to every inhabitant of the earth, individuals should perhaps enjoy “broader participation in the process of law enforcement, dispute resolution, and environmental guardianship” (Birnie and Boyle, 1992). International treaty law can better take individual rights into account if the treaty requires domestic legislation to vest individuals with the right to direct action. In addition to permitting individuals to act based on international treaties, the proposal requires the broadening of the legal concept of “interested party.” Nanda (1995) observes that “under the traditional, very limited doctrine of standing, even injured states do not always have sufficient interest to have standing when transgressions against the global commons are involved.” According to the general principles of international law and as seen in most legal systems throughout the world, some level of injury is required as a threshold to be met in order to bring a legal claim. While the proposal does not require a complete abandonment of this principle, it recognizes the need to lower the threshold for standing based upon the unique problems of environmental destruction. Due to the unique nature of environmental offenses which often have farreaching effects, the traditional notion of interested party must be expanded. One argument for extending environmental rights is found “in the view that international law recognizes a human right to a decent, viable, or healthy environment” (Birnie and Boyle, 1992). It is not necessary to accept such a broad conception of human rights, however, since the clear legal trend has been in the direction of broadening current notions of standing. The European Union, a leader in environmental protection, has long been advocating a system in which domestic legal systems are more accessible and involved in environmental treaty enforcement. The 1974 Nordic Convention for Protection of the Environment “affords individuals procedural rights before the courts or administrative authorities of any of the parties to the same extent and on the same terms as a legal entity of the state in which the activities are being carried out” (Birnie and Boyle). The United Nations Economic Commission for Europe (ECE) has continued the trend of increasing private rights stemming from environmental conventions. The 1991 Convention on Environmental Impact Assessment in a Transboundary Context (Birnie and Boyle, 1992) and the ECE Charter, are particularly significant because they are among the first international instruments to “provide for individual access to a comprehensive range of administrative and judicial proceedings and remedies for the prevention and reinstatement of environmental



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damage, and participation in the decision-making processes” (Birnie and Boyle). Additionally, international law has increasingly permitted “indirectly interested” states to bring claims to the International Court of Justice based upon the unique characteristics of certain issues (Birnie and Boyle). Some have suggested that current treaties involving immediate environmental issues of collective interest, such as the Ozone Convention, the Convention for the Control of Transboundary Wastes, the London Dumping Convention, and the Antarctic Mineral Resources Convention, may enable any of the states’ parties to seek remedies whether or not they are affected by a violation (Birnie and Boyle). Consistent with this progressive trend in international environmental law, even indirectly interested individuals should have rights of direct action based upon international treaty law. Under the proposal, an indirectly interested individual would be any legal entity with an interest in global environmental protection. The threshold between interested or injured is effectively eliminated by this broadly inclusive definition. This effective elimination of the standing threshold might seem revolutionary or inconsistent with current international law. However, the proposal does not eliminate all rules of standing. The rationale for expanding standing, based as it is on the unique nature of environmental problems, limits the proposal to the field of international environmental law, and within that field, to the parameters of each specific environmental treaty. If, however, the preservation of traditional notions of standing takes precedent over environmental objectives, there are other more narrow approaches to the question of standing. For instance, the threshold could be broadened only to include interested parties who possess a right to use the resource that has been affected. Another potential can be found in the Netherlands, where an NGO has a limited legal interest if its articles of association and its actual activities deal with the specific environmental question being raised (Bilderbeek, 1992). With some types of problems, for instance transboundary pollution, the proposal could probably work equally well by employing traditional notions of standing, so long as private causes of actions were created. Regardless of the question of injury, the indispensable element of the proposal lies in giving private legal entities rights of action based upon the international agreement. It would be very easy to create this broadened notion of standing—a state would merely need to pass a law giving specific groups standing to bring the specified claims. The proposal includes an expansion of standing for individuals who are foreigners as well as nationals. This part of the proposal seems to skirt the limits of national sovereignty, but in fact, foreigners have always had access to national courts around the world. For instance, a German national driving a car in the United States has every right to sue in American courts for damages from a collision with a negligent American driver. Since domestic law does not


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discriminate between indirectly injured parties, an indirectly injured foreigner, under the broadened notion of standing, would mean virtually any foreigner; any foreigner would automatically have access to domestic courts. Therefore, the potential problem of giving foreigners rights of action under international environmental treaties lies not in the fact that they are foreign (because foreigners have always had access under normal rules of standing anyway), but rather in the fact that they are potentially uninjured and foreign. Even though treaty makers might hesitate to allow foreigners to sue national governments, the extension of this right might improve compliance and enforcement of international treaties. In certain countries, nationals may not have the capacity to sue or might be pressured not to. In these cases, a foreign national or NGO might possess better means or the political capacity to overcome government pressure. Nevertheless, if nations object so greatly to giving uninjured foreigners rights of action under an international treaty that they will not agree to ratify, the proposal could be amended to give foreigners rights comparable to nationals. Suits by uninterested foreign nationals could be limited to suits against private entities in violation of domestic law, the third type of suit allowed under the proposal. This would restrict foreigners from suing governmental entities, and allow only private nationals to sue their own government based upon the treaties. It would not be difficult to limit the standing of foreigners. Since no standing exists unless a law creates it, the relevant statute or treaty provision would simply state that standing only exists in suits by nationals against their own governments. Harmonizing National Laws If domestic laws must be enacted based upon an international treaty, it is crucial that the national laws and standards are relatively uniform and that domestic courts are accessible and impartial throughout the treaty regime. Birnie and Boyle (1992) write, “The role of international law in this context is to ensure that obstacles to transboundary litigation are removed and in certain cases to ensure that liability standards are harmonized and an effective remedy guaranteed.” The process of harmonizing liability standards and deciding which international legal guidelines national governments may adopt is not easy. There are very real concerns that legal technicalities and the extra time and money needed to negotiate the legal aspects of the treaty might hold up the entire treaty-making process or prevent an agreement altogether. In addition, a close look at the existing legal structure of treaty regimes reveals glaring weaknesses as “the rules are very sketchy; no one is really in charge”(Susskind, 1994).



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Fortunately, there are organizations with the capacity and experience necessary to solidify the legal guidelines. The International Law Commission (ILC) and the United Nations Environment Programme already have organizational infrastructures designed to deal specifically with the codification of international law. Using these existing organizations, international environmental treaty regimes can create legal standards that can be adopted at the domestic level at a minimal cost and without holding up the treaty-making process. Because it has been involved for many years in the codification of international law, the ILC is an ideal facilitator for harmonizing the legal guidelines of environmental treaties. In 1947, the U.N. General Assembly (GA) created the ILC for the express purposes of codifying and promoting the progressive development of international law. Nanda (1994) writes, “The Sixth Committee of the GA— the Legal Committee that is the reporting body for the Commission’s work—often has focused on the international community’s need for innovative law that will address the world’s escalating environmental problems.” While the ILC has contributed significantly to the development of international environmental law, it has failed to keep pace with the international community’s need for “adequate means to address interstate and transnational environmental issues” (Nanda). In an attempt to resolve some of the international environmental issues, the ILC has been working on “international liability” in environmental matters since 1978, but it has repeatedly run into the obstacles of state sovereignty and general resistance to change in this field. It seems logical to try a new approach in the light of the ILC’s current ineffectiveness and the Legal Committee’s call for innovation. If international environmental treaty regimes began to require countries to adopt domestic laws in accordance with international treaty standards, the ILC could play a vital and innovative role in that process. Under this approach the ILC and UNEP would help parties to the treaty place the international agreement directly into domestic law. Such an approach would allow the ILC to utilize its developmental work in the field of international liability. After nearly two decades spent codifying the international liability concept, the ILC has accumulated experience in the concept of environmental liability. In addition, the ILC can circumvent some of the constraints it faced within the international legal system by focusing on national legal systems rather than international law. The ILC is familiar with the idiosyncrasies of the many different domestic legal systems in the world and would be the best organization to adjust for the difference between legal systems. Since the United Nations’ inception in 1945, the growth in the number of member countries from 50 to 170 has been accompanied by a move away from Eurocentricity in international law (Birnie and Boyle, 1992). International environmental treaties frequently go unratified as the “one size fits all” mentality of the developed world results in biases against less powerful


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countries.6 To combat this problem, the ILC could create several legal drafts of the substantive treaty standards. Instead of requiring all countries to adopt the same legal guidelines, then, each country would choose from the drafts provided by the ILC based upon the compatibility with their legal system, thereby increasing the likelihood that each country will find something acceptable. Provided with multiple draft options, each country is free to make its own laws based upon the boilerplate options provided by the ILC. To give the ILC sufficient environmental expertise, international environmental law might best be developed in conjunction with UNEP. Shortly after its creation in 1972 at the U.N. Conference on the Human Environment in Stockholm, UNEP first spelled out its objectives for the development of international environmental law, stating that it intended to “facilitate cooperation in developing the law on state responsibility in accordance with the Principles of the Declaration; to contribute to the development of international law at national and regional levels; to promote protection of the environmental commons . . . ” (Birnie and Boyle, 1992). Although UNEP may be overextended as an administrative and secretariat organ, its function as a law-developing body remains relatively underdeveloped. Working together, these two organizations could help in the effort to develop domestic laws based upon international treaties. Some scholars have criticized the overuse of international public agencies such as the ILC and UNEP arguing that they are underfunded and ineffective at developing international law. For instance, Birnie and Boyle (1992) have stated that “efforts by the ILC to develop and reform the law relating to state liability for environmental injury are controversial and of little appeal.” Others have observed that UNEP has inadequate funding and lacks the resources to tackle new emerging issues (Samaan, 1993; Gray, 1990). The proposal addresses these issues in two ways. First, it envisions a new and somewhat different role for the ILC. Instead of developing international law, the ILC will only be responsible for transforming international law developed in a treaty regime into domestic law. It will be under no pressure to create international law on its own. Second, the proposal is designed to save UNEP money. In its role as secretariat for a number of environmental treaties, UNEP is currently active in monitoring, researching, and pressuring for treaty compliance. By empowering NGOs and individuals with the right to sue, the proposal shifts the burdens, financial and otherwise, from UNEP to the private sector. UNEP can then focus its resources on assisting the ILC in the treaty-making process. Other treaty regimes have tried to create hard and fast legal standards, only to find that the treaty-making process was delayed or stopped by the tedious negotiations over legal technicalities. Perhaps these regimes failed to overcome the



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obstacles presented by hard legal standards because they did not properly enlist the help of entities such as the ILC and UNEP, which are independent and experienced in developing law. After finding that it could not grapple with the legal guidelines of the treaty without delaying the entire process, the Convention on Climate Change (CCC) laid the groundwork for a new U.N. institution: the Conference of the Parties. It received the unenviable task of negotiating “all the related legal instruments necessary to achieve the objectives of the Convention” (Mintzer and Leonard, 1994). Although the Conference of the Parties may have served its function well, the CCC wasted valuable time and effort attempting to deal with the legal questions presented by the treaty during the treaty-making process and then creating an ad hoc Conference of the Parties. It is inefficient to lay the groundwork for a new organization when other organizations have already been established and have gained experience in dealing with the very problems the CCC set out to address. The ILC and UNEP are well-established fixtures in the U.N. whose missions are substantially concerned with the problem of international environmental legal codification and development. Soliciting their services in the treaty-making process will save money, time, and effort. These two organizations have been criticized for their inactivity in the field of international environmental legal development; this is an opportunity to use their services to achieve better levels of compliance at the national level. The Appeal Process The appeal process is important because domestic courts may fail to give an appropriate remedy to a party or will misinterpret the intent of the international treaty as codified in their domestic laws. In some states, “political pressure . . . may make it difficult for the national courts to decide that their own governments did not implement the treaty rules in a proper way” (Bilderbeek, 1992). There are two types of appeal—appeals by individuals and NGOs, and appeals7 by states. Consistent with traditional domestic law rules, every claimant can appeal to the fullest extent permitted by the domestic system. No matter what its nationality, a claimant typically has the right to appeal an unsatisfactory decision to at least one higher domestic court. When a claimant is suing in courts of the nation where it is a citizen, there is no opportunity for a further international appeal. When a foreigner brings a suit in another nation’s courts, however, the foreigner’s home state can bring an international suit before the ICJ after all domestic appeals have failed to provide a satisfactory judgment (ICJ, 1989). In this situation, a state’s standing to bring a claim before the ICJ rests upon the failure of another state to supply an adequate remedy to the individual from the first state.


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There is one additional avenue of appeal. When one state is not satisfied with another state’s interpretation of a treaty (as embodied in a final judgment of that state’s courts), the dissatisfied state may request an advisory opinion from the ICJ regarding the interpretation of the treaty. Article 65 of the Statute of the ICJ states that “the Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.”8 Since individuals are not authorized to request an Advisory Opinion, private claimants may actively seek the sponsorship of a state that is a party to the treaty to bring the case before the ICJ. If an advisory opinion fails to cause the state to reverse its decision, the legal channels for recourse may be exhausted, but the claimant might still pursue a remedy through diplomatic and political channels. Time Frame for Implementation Setting time frames for domestic implementation of the international treaty is vital for successful compliance. The effectiveness of the Montreal Protocol can be partly attributed to the fact that countries agreed upon timetables for reaching the environmental goals of the treaty. Additionally, timetables may be a useful way to deal with the disparity between wealthy states and states that lack the institutional capacity to create, implement, or enforce laws. It would be consistent with the proposal for a treaty regime to set up a system to give countries with less-developed legal or bureaucratic systems more time to comply with the treaty requirements than countries with an existing institutional capacity. As part of such a two-tiered system, benefits of membership could be contingent on complying with set timetables. For instance, if financial or technology transfers were a part of the treaty, these could be linked to compliance with delayed timetables or could be available only to countries in one or the other tiers of membership. Similarly, voting rights might be limited or suspended until a state comes into full compliance with its treaty requirements. In another approach, full membership in the treaty regime could require a state to take specific measures, including passing appropriate laws, before ratification.

The Proposal in Practice This section explains how the proposal would work in hypothetical situations. A negotiated treaty would include provisions, developed with the aid of the ILC and UNEP, requiring each state party to take the steps necessary to incorporate the treaty standards and requirements into its national law. Each state would be required



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to implement and comply in good faith with the treaty requirements. Each would give legal standing to individuals and NGOs, regardless of traditional legal interest, to sue the government in domestic courts for failure to implement the appropriate legislation and for failure to enforce the implemented treaty requirements, and to sue private parties violating the domestic laws that embody the treaty requirements. The treaty could further state that individuals and NGOs from foreign countries would have similar access to the domestic courts of each state party, so long as the state of which the NGO or individual is a national provides reciprocal access to nationals of the country in question. Accompanying the treaty would be several legislative options, created with the help of the ILC and UNEP, from which the country could select, embodying the substantive treaty requirements. Governments would then have a duty to implement legislation: (1) giving standing to sue for failure to incorporate the treaty requirements into domestic law,9 (2) incorporating the treaty requirements into national law, (3) giving individuals and NGOs standing to sue the government to enforce the nowdomestic treaty standards, and (4) giving individuals and NGOs standing to sue violators of the laws, even if such individuals and NGOs lack a direct interest under traditional notions of standing, as is typically required by court systems.10 Certain benefits or membership status could be contingent upon fulfilling some or all of these duties. Under a treaty regime like the Convention on International Trade in Endangered Species (CITES), for instance, an individual or NGO would be able to sue the government to implement the necessary legislation. In fact, a survey of national laws fully 15 years after the signing of the CITES agreement showed that as of 1994 only 20 percent of the states parties had adequate legislation to implement the CITES requirements on the books, while one third of the state parties had totally inadequate legislation (Environmental Policy and Law, 1995). CITES cannot be effective if the laws do not exist to implement its requirements. The proposal would help ensure that such legislation would be implemented in a timely manner. Another situation in which the proposal would help improve compliance is when the government has implemented the necessary domestic laws but does nothing whatsoever to enforce them. Former General Counsel to the EPA Donald Elliott, for example, has noted that “many of the environmental laws in other countries around the world are a little bit like the Soviet Constitution, a beautiful declaration of rights at a relatively high level of generality but without effective mechanisms for actually implementing those declarations of rights and bringing them into being” (Elliott, 1994). Under the proposal citizens and NGOs would have the right to bring suits against the government asking it to enforce its own laws. This approach was recently taken in the environmental side agreement to the North American Free Trade Agreement.11


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Finally, the proposal would give standing to individuals and NGOs to sue private violators of the domestic environmental laws. Under the Montreal Protocol, for instance, an NGO would be able to sue a private entity that continued to produce or use CFCs in violation of the treaty. Relief under such a suit could include damages (as a means of encouraging private environmental attorneys general)12 and injunctions requiring the violator to change its behavior. The remedy gained in this suit could theoretically be accomplished by a suit requiring the government to enforce its own laws, but this suit merely allows private citizens to accomplish the same result in a manner that would presumably see less resistance from the government. Additionally, “non-governmental organizations and individuals may be best suited and more willing to bring suits” than governments (Mbuna, 1992). This observation has been borne out in practice, as citizens’ action suits have been described as a “very successful element of the United States system of enforcing its environmental laws” (Elliott, 1994). Even a critic of citizens’ action suits in the United States admitted that a “large majority of legal scholars and environmental advocates” view citizens suits as an “efficient policy instrument . . . that allows concerned citizens to redress environmental pollution” (Greve, 1990). Nations have already begun to embrace the role of NGOs and individuals in domestic environmental protection cases. The United States, Brazil, and several other countries have seen merit in giving NGOs and individuals the role of private attorneys general by giving them greater access to courts in the environmental field. (See Bilderbeek, 1992; Urbani and Rubin, 1994.)

Criticisms of the Proposal Critics might argue that no country will legislate laws adverse to their interests and, therefore, the domestic legislation will be watered down and ineffective. This criticism ignores the motivating factors that will overcome the tendency to dilute the treaty. These factors include reciprocity, comity, mutual right to sue in another state; domestic, ICJ, U.N. and public pressure; and linked benefits such as money, organizational assistance, and technology. On another level, this criticism illuminates the inherent irony in the desire to bind states beyond their will. Allowing states to be parties to treaties that they have no intention to enforce is deceptive and counterproductive. As A. Tolentino has noted, law which is not implemented “may satisfy political and administrative conscience or a formal international obligation but it has no effective impact on the problems which it is supposed to deal with” (quoted in Bilderbeek, 1992). It is better in the long run if countries are encouraged to make agreements with which they can comply.



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It can be further argued that states have no incentive to bind themselves to legislate domestically within a set period of time. However, some of the same powerful factors that are instrumental in motivating states to agree to international treaties themselves are also significant in the process of encouraging states to legislate within their own system. Linkage of funds and technology might provide incentive for countries to implement domestic laws within a set time frame. Perhaps the countries that legislate can have access to funds from the World Bank, International Monetary Fund, or the Global Environmental Facility set aside for the purpose of covering the costs of treaty implementation. Furthermore, the concept of reciprocity can influence states tremendously, and often does in the international arena. For instance, reciprocity is an important consideration in whether courts of one state will enforce a judgment from another state’s courts. (See generally Brandt, 1992.) States and their nationals who wish to gain access to the legal systems of other states under the provisions of the treaty, must first have domestic legislation in place. States deciding to play a leadership role by enacting domestic legislation soon after ratification will gain from the international image as a leader or an environmentally conscious state and states failing to legislate on time can be pressured politically and requested to comply by the ICI. Finally, the international treaty will contain provisions giving nationals, private citizens or organizations, of the offending country a right of action to sue that country and demand specific performance of the treaty obligations. That is, individuals will have the right to force the state to legislate domestically in accordance with its obligation under the treaty.13 The process of treaty negotiation and ratification can be slow and cumbersome (Nanda, 1994). Adding the confusing and technical requirements of domestic law might make the process of achieving consensus even more difficult. Although that may be the case initially, the ILC and UNEP can help remove the burden from the treaty regime by drafting guidelines in an arena that is separate from the negotiations and presenting multiple drafts to the negotiating parties. In addition, process should eventually become a mere formality as countries rapidly become accustomed to the legal guidelines. It might even be possible for the ILC and UNEP to draft reusable “boilerplate” language that treaty regimes could use with only minor revisions. Critics of this proposal might contend that since “The [treaty] agreement[s] can be reached only on the terms of the least common denominator” (Nanda, 1994), adding legal guidelines will further reduce the effect of the environmental protection. However, a treaty that is too progressive and goes unenforced is less effective than a treaty that is strictly enforced at the level of the lowest common denominator. By eradicating the principle of “one size fits all” and providing multiple drafts of possible legal legislation, the ILC and UNEP can help to increase


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the chance that countries will agree to ratify the treaty. The lowest common denominator problem can be overcome by giving countries several options for legal guidelines and by accepting some minimal amount of ambiguity in the treaty. In fact, ambiguity is sometimes the key to ratification because it allows countries to interpret the treaty for themselves without determining the interpretation for other parties. If some ambiguity remains in the international treaty, ratification can be achieved more readily at the national level. However, this does not mean that the domestic laws will necessarily be ambiguous. In fact, domestic statutes are usually written more precisely in order to achieve consistency in judicial decisions and enforcement. Therefore, some minimal ambiguity and the elimination of the “one size fits all” mentality can help reduce the effects caused by the lowest common denominator phenomena. After treaties have been ratified, the burden of action shifts to national responses, which are often inhibited by low political, legal, and administrative capacity. When this problem is serious, international institutions can help increase domestic capacity by transferring resources, giving aid, or creating international networks designed to help with reorganization and compliance (Haas, Keohane and Levy, 1993). In addition, UNEP, UNDP, the World Bank, the IMF, and GEF all exist to cover the costs of international development projects including those involving environmental issues. Institutional and financial capacity may also be a problem for individuals and NGOs wishing to bring claims founded upon international treaties (Bilderbeek, 1992). In such cases, however, costs of fact-finding and of bringing claims against the state can be offset by the sponsorship of a wealthier NGO or an external state. Furthermore, the costs incurred by the state in defending against direct action might indirectly promote the environmental ends of the treaty by serving as an incentive to pay for compliance rather than litigation. Foreign nationals attempting to sue in states that are a party to the treaty might experience problems of discrimination and denial of access to the courts or to information. Although these problems are not unique to the environmental legal order, they can be combated by the threat of reciprocal treatment from other states and by the pressure of comity in the international legal order. As discussed above, NGOs, U.N. agencies, and other interested states can help to ensure equal access to courts by covering the costs of bringing a case or of acquiring adequate information to pursue a claim. Furthermore, the domestic appeal processes, the option of ICJ advisory opinions, and usage of diplomatic and political channels can help to encourage nondiscrimination and equal access. Alternatively, as noted above in the details of the proposal, the access of foreign nationals could be restricted. Finally, critics of this proposal might argue that it is Eurocentric in its failure to acknowledge that not all legal systems of the world share the concepts of civil



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liability or of government liability to the people. The ILC can help to overcome this problem by drafting legal guidelines that are more consistent with the legal systems of non-European-influenced states. In addition, the monetary assistance and organizational networking available through the United Nations can help to enhance the legal systems of the developing world. The strengthening of formal legal systems would be a positive externality of the proposal. Finally, in a world where the developed countries seem to be causing much of the environmental damage, a treaty implementation system that is most effective against the developed world will only help the rest of the world achieve more sustainable development by increasing environmental protection in the largest industrial countries in the world. Although numerous criticisms exist, many of these criticisms are inherent in the international system generally and would apply to any compliance and enforcement regime. For instance, the criticism that states may lack the capacity to implement or enforce treaty requirements, or that states may lack the will for greater enforcement is a problem no matter what type of enforcement measures are required by a treaty. Criticisms that are not specific to this proposal do not detract from its strength, as they could be leveled at any proposed compliance and enforcement reform.

Strengths of the Proposal While any system to ensure compliance will have weaknesses, the benefits of this proposal outweigh its drawbacks. Significant benefits of the proposal may be found in the fact that it solves the sovereignty problem; it does not depend on the creation of a new global institution; it is relatively inexpensive; it helps to eliminate worthless treaties; it formalizes a role for NGOs; it adds transparency to compliance regimes; it helps to strengthen the international legal system; and, most importantly, it will improve compliance with treaty requirements. Every treaty compliance regime eventually runs into the “bottleneck” of the principle of sovereignty. The fact remains that countries cannot be forced to change their behavior by some international police force because no such force exists in international law. Current compliance regimes, therefore, all have one problem: the proposed authority, whether it is the treaty secretariat, another party to the treaty, a new organization created by the treaty, or public opinion, does not have the power to make a noncomplying country come into compliance. The proposal resolves this problem by creating a system that does not violate the principle of national sovereignty, but in which the body charged with oversight and enforcement—the national courts of member states—actually has the authority and the power to make a noncomplier do something. There is no other


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compliance regime, short of creating an international environmental policeman, in which the authority deficit is solved. The proposal should also be palatable to states protective of their sovereignty. The proposal circumvents the problem of sovereignty because each country is only obligated if it consents to the original treaty and each country maintains complete control over its own municipal legal system. In the end, enforcement under the proposal is limited by power of the domestic court system. Presumably a state has enough influence and control over its own court system to maintain sovereign control over enforcement: “A government regularly finds its own courts acceptable and generally, if not always, is willing to comply with their decisions” (Fisher, 1981). In this way sovereignty remains in the national government as each state has complete control over its consent to the treaty, its domestic legislation based upon the treaty, and the implementation and enforcement of the treaty under its own judiciary and policing systems. The proposal also solves the funding deficit, insofar as the compliance regime itself is low cost.14 The proposal does not depend on or require the creation of any new international bodies; it uses existing national court systems. Presumably the only costs to a country, besides the costs of compliance itself, are the additional costs to its court system from the treaty-based suits, and the costs of defending against these suits. These are not even assured costs: if no cases are filed, then the proposal yields no costs to a country besides the costs of compliance. Of course, a country may not be willing to pay even the costs of complying with the obligations created by an international environmental treaty. In that case, the proposal will help to make sure that the only treaties that get signed are those with which the parties intend to comply. If the proposal assures that a country pays the costs of implementing its treaty obligations, then countries may be more realistic in the types of treaty provisions they take on. Such a dose of realism in the treaty-making process will help to ensure that international environmental treaties are not just worthless pieces of paper. The proposal formalizes a role for individuals and NGOs in international environmental treaty compliance. Although international law does not grant standing to NGOs or individuals, domestic law can. Under the proposal, NGOs are given incentives to monitor countries and companies and to gather data for potential suits. If, as already suggested above, NGOs are better able than governments to bring suits against non-compliers, then the proposal ensures that those best able to bring litigation may actually do so. The proposal also helps ensure that NGOs and individuals will have access to the information that they need to ensure compliance. Under some legal systems, parties to a suit are entitled to information from the opposing parties under rules of discovery. For example, in the United States, Federal Rules of Civil Procedure



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26 through 37 spell out the ways in which a party can obtain information from adverse parties (Fed. Rules of Civ. Proc., 1993: Rules 26–37). The rules also vest the court with the authority to compel discovery when parties refuse to comply with discovery requests. Although United States discovery rules are more extensive than those in civil law countries, most legal systems generally provide for some forms of discovery. (See Merryman, Clark and Haley, 1994.) The ability to file a suit brings with it access to information that may be very important in effective monitoring. The proposal helps to increase transparency. While NGOs, individuals, and other governments have always been able to publicize the behavior of violators, the proposal calls the violator to task in a court of law. Additionally, when the violator is a country, the proposal makes transparent the country’s exact interpretation of its treaty obligations, as declared by the national courts of that state. This dose of transparency may improve compliance by providing a “basis for embarrassing and shaming a party that departs from treaty norms” (Chayes and Chayes, 1991). Environmental suits force official state actions in the form of national court rulings. These state actions create state responsibility under international law and thus serve as the basis for ICJ advisory opinions if another state finds the declared interpretation of the treaty unacceptable (Brownlie, 1983). This could lead to a more frequent turn to the ICJ for settling disputes over international environmental treaties. In this way the entire international legal system would most likely be strengthened, as countries make increasing use of the ICJ to resolve their treaty disputes. Even without a turn to the ICJ, the debate that would emerge between state parties over the interpretation of the treaty can be likened to a “discourse among the parties . . . [that] can be an important way of clarifying the meaning of the rules” (Chayes and Chayes, 1996). Finally, the proposal would be an effective method of improving compliance with international environmental treaties. Donald Elliott discussed the important role that citizens’ actions suits have played in enforcing U.S. environmental laws; such suits would be equally powerful tools in enforcing international environmental obligations.

Conclusion This chapter has detailed a method of improving compliance with international environmental treaties based on incorporating treaty requirements into domestic law and giving NGOs and individuals standing to sue in domestic courts. This approach would help overcome the deficiencies of authority, funding, and


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transparency that have combined to inhibit the enforcement of current treaty regimes. By overcoming these deficits the effectiveness of environmental treaties would be improved. The proposal does not add to the international bureaucracy; it does not require the creation of any new organizations or institutions, instead it is seeking to enhance the role of existing organizations such as the ILC and UNEP. The proposal also formalizes a role for NGOs, a move which many, if not all, experts view as an important goal of any international environmental treaty regime. Under the proposal, NGOs and individuals would play a central role in helping to monitor and enforce the provisions of international environmental treaties. The proposal is not perfect; it may be criticized for adding complexity to the negotiations process, for opening up the possibility of prejudice in national courts and of conflicting national interpretations of international treaties, and for being based on a Western model of civil law suits. Nevertheless, the proposal, if effective, would be a great improvement over the current approaches to treaty compliance and will ultimately help to improve compliance with international environmental treaties.

Notes 1. Lawrence Susskind, during “International Environmental Negotiations” lecture on October 3, 1995. 2. The authors of the Salzburg initiative agreed “that states are likely to retain their sovereign powers and will remain the center of global decision making.” Quoted in Susskind, 1994. 3. A. Chayes, “Managing the Transition to a Global Warming Regime or What to do Till the Treaty Comes,” Greenhouse Warming: Managing a Global Regime (R. E. Benedict and others eds., 1991) quoted in Mbuna, 1992. 4. This last reciprocity requirement is not an indispensable part of the proposal, but is calculated to ensure maximum ability to sue for compliance. For example, this would allow more wealthy NGOs to bring suit in a country in which local NGOs may not have the capabilities to bring an environmental compliance suit. Obviously this aspect of the proposal raises problems of its own which will be discussed infra under the section “Standing to Bring Claims.” 5. Some legal scholars disagree with the view that traditional international standing rules only gave rights of action to states. The early positivist theorists believed that individuals had rights under the “law of nations” and “drew no bright line dividing what later came to be understood as public and private international law” ( Janis, 1988). 6. Lawrence Susskind, during “International Environmental Negotiations” lecture on October 3, 1995. 7. The term is in quotations here because when a state brings a claim against another state before the ICJ, even if the claim was originally based on a private claim, the claim is actually treated as an original claim, not an appeal.



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8. Statute of the International Court of Justice, ch. IV, art. 65, para. 1, available in United Nations Department of Public Information (1993), Charter of the United Nations and Statute of the International Court of Justice, New York: United Nations. 9. Not all governments would need to do these two steps, as certain national legal systems incorporate international legal obligations automatically. 10. This requirement could be resolved for all environmental treaties by a law which stated that individuals and environmental NGOs have a legally sufficient interest in matters that affect the global environment, as reflected by the existence of an international environmental treaty. For more on this see supra section “Standing to Bring Claims.” 11. See North American Agreement on Environmental Cooperation (NAAEC), art. 6. In that agreement, citizens may file complaints with the secretariat of the Commission for Environmental Cooperation asserting that a party is failing to take appropriate action to enforce its environmental laws (Moremen, 1994). In addition, the agreement requires each party to ensure that interested persons may request the party’s “competent authorities to investigate alleged violations of its environmental laws and regulations” (NAAEC: Art. 6 & 1), and to “ensure that persons with legally recognized interests under its law” have access to rights “to request the competent authorities to take appropriate action to enforce that Party’s environmental laws and regulations” (NAAEC:Art.6 & 2,3). 12. The exact manner in which such damages would be fixed, assuming that no direct harm was done to the complainant, is not discussed in this chapter. 13. As already noted, in states where international treaties do not automatically become a part of domestic law, such a suit would not be possible unless the country already had passed a law giving the right to bring such a suit. 14. The problem may still exist that there are insufficient monies to fund the costs of coming into compliance with environmental responsibilities. This chapter does not address this problem that is independent of the type of compliance regime chosen. The proposal does, however, reduce the costs of the compliance regime.

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Y CHAPTER ELEVEN

CAPACITY-BUILDING STRATEGIES IN SUPPORT OF MULTILATERAL ENVIRONMENTAL AGREEMENTS Heike Mainhardt

ll countries, but especially developing countries and countries with economies in transition, need to enhance their internal capacity to manage their environmental protection and sustainable development. Many existing institutions in the industrialized and developing countries lack the requisite management skills and experience to undertake the effective programs necessary for good environmental governance. Thus, when a country ratifies a Multilateral Environmental Agreement (MEA) it often has difficulty implementing the measures necessary to successfully accomplish the objectives of the treaty due to a lack of capacity for such measures. Currently, there is not enough attention given to how countries will actually meet the obligations of MEAs. There are many obstacles to effective capacity building including insufficient resources, lack of incentives for relevant stakeholders, and inadequate management by convention secretariats. The main focus of this chapter is to identify general approaches and specific strategies that will overcome the fundamental barriers to capacity building and enhance the effectiveness of countries to achieve the environmental objectives of multilateral environmental agreements. The chapter begins with a discussion of what is meant by capacity building. Next, it gives a brief summary of the historical approach to capacity building by several conventions and the obstacles encountered. This leads to the prescriptive

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half of the chapter, which recommends options for more effective capacity building for the implementation of international environmental agreements. The recommended options include two general approaches, a capacitybuilding management unit and a systems-level approach, and two specific strategies, linking convention regimes and engaging the private sector. The chapter concludes with a discussion on the development of indicators of progress in capacity building. It should be noted that this chapter is not designed to be an exhaustive discussion of capacity building strategies. Its purpose is to highlight a few recommended strategies. There are many other important strategies, such as coalition building, country partnerships, and the participation of civil society, that are not included here.

What is Capacity Building? Capacity, in the sense that it relates to the obligations of environmental agreements, may be defined as the ability of individuals, institutions, and countries to make good decisions regarding environmental protection and the ability to implement those decisions in an effective and efficient manner. Capacity building, sometimes referred to as capacity development,1 is the sum of efforts needed to develop, enhance, and utilize the skills of people and institutions in order to more effectively accomplish the objectives of an environmental agreement. Moreover, it is the process through which the inefficiencies and deficiencies in the way that entities operate are identified, and the necessary changes to improve performance are carried out. Capacity building should include improvements in both the short-term and long-term capabilities of countries, with strategies targeted at the specific project level (for example, individual or institutional) or at the broader systems level. The main areas of capacity building most often required for the implementation of multilateral environmental agreements include: • • • • •

Institutional Technological Economic Social Political

These areas are not exclusive of one another, but are very much interrelated. More importantly, the specific definition and what is included in the scope of capacity building will differ from treaty to treaty. At the individual project

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level, the institutional (or individual entity), technological, and social capacity building areas are most often targeted. For a broader systems approach, the focus may be on economic, political, and institutional capacity building on a nation wide scale.

Historical Approach to Capacity Building by Environmental Conventions A review of most international environmental treaties reveals that they tend to use vague language and sidestep the issue of real capacity building. Environmental conventions commonly offer assistance with inventories, reporting, training, and an empty promise of technology transfer. The following passage illustrates the type of language commonly used in environmental treaties with regards to the capacity building needs of developing countries: “The Conference of the Parties: Encourages all relevant countries and international organizations to mobilize and facilitate efforts to provide financial resources and technology transfer needed by developing country Parties; and to assist developing country Parties in their efforts to build capacity and institutional frameworks to build capacity for the implementation of the obligations of the Convention.” The following is a list of typical capacity building activities prescribed and sometimes funded by many conventions:2 • • • • • • • • • •

Development of country profiles (for example, inventories) Development of country action plans for compliance with an agreement Conduct of research Establishment of support units Training of in-country professionals and officials Development of electronic information systems Development and implementation of regulatory controls Technology transfer assistance Support for the introduction of alternatives Development of information/outreach programs

The issue of capacity building is typically handled under what are referred to as mechanisms for providing technical and financial assistance. The main function of most of these mechanisms is to finance the agreed incremental costs to developing countries of implementing the obligations of the convention. The mechanisms commonly include a board to review submitted project proposals for approval to be funded. In addition, a clearinghouse for information related to the convention may be set up. These mechanisms do not typically provide any direct

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management or promotion of capacity-building activities and are not set up to respond to difficulties being experienced by countries. Table 11.1 provides a brief summary of the mechanisms to provide financial and technical assistance to developing countries and countries with economies in transition of several multilateral environmental agreements. It should be noted that the number of projects listed represents the number of projects approved, not necessarily in operation or completed. As seen in Table 11.1 and according to TABLE 11.1. CAPACITY BUILDING MECHANISMS OF SELECTED U.N. ENVIRONMENTAL AGREEMENTS INCLUDING THE PURPOSE, APPROACH, SOURCE OF FUNDS, MODE OF OPERATION, NUMBER OF PROJECTS, AND IMPACTS OF EACH. 1. Montreal Protocol On Substances That Deplete the Ozone Layer Mechanism: Multilateral Fund of the Montreal Protocol. Purpose: To meet the incremental costs of developing country Parties to implement the control measures of the Protocol. Also to finance clearinghouse functions (that is, country studies, technical assistance, information dissemination, training, and costs of the Fund Secretariat). Funding: Mandatory contributions by developed country Parties. Amounts are determined according to the standard United Nations Scale of Assessments. Mode of Operation: Administration by the Multilateral Fund Secretariat, with offices in Montreal, Quebec, Canada. Number of Projects: 2,300 (as of October 1998). Impact: About 46,160 metric tons of ozone-depleting substances have been eliminated on an ODP-(ozone-depletion potential) weighted basis. 2. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal Mechanism: The Technical Cooperation Trust Fund of the Basel Convention. Purpose: To assist developing countries and other countries in need of technical assistance in the implementation of the Convention. Assistance includes: development of legislation, identification of hazardous waste streams/preparation of plans for their environmentally sound management, and providing advice to Parties and others. Funding: Voluntary contributions by Parties and non-Parties to the Convention as well as any interested intergovernmental organisations. Mode of Operation: A Secretariat governs the operations of the Fund, which is administered by the UNDP. Number of Projects: Not Available. Impact: Not quantifiable. 3. Convention on Biological Diversity Mechanism: Global Environment Facility (GEF) (Biological Diversity Focal Area). Purpose: To provide new and additional grant and concessional funding to developing country Parties to meet the incremental costs of actions designed to provide global environmental benefits in the area of biological diversity. (continued )

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TABLE 11.1. CAPACITY BUILDING MECHANISMS OF SELECTED U.N. ENVIRONMENTAL AGREEMENTS INCLUDING THE PURPOSE, APPROACH, SOURCE OF FUNDS, MODE OF OPERATION, NUMBER OF PROJECTS, AND IMPACTS OF EACH (CONTINUED). Funding: Mandatory contributions are made to the GEF Core Trust Fund with amounts based on the burden-sharing formula for the 10th replenishment of the International Development Association. New funds are not required under the Convention on Biological Diversity. Mode of Operation: The GEF Council is responsible for operations. Number of Projects: 250 (as of June 1998). Impact: Not quantifiable. 4. United Nations Framework Convention on Climate Change (UNFCCC) Kyoto Protocol Mechanisms: Global Environment Facility (GEF) (Climate Change Focal Area); and Flexibility Mechanisms*: Joint Implementation, Clean Development Mechanism, and Emissions Trading. Purpose: To provide new and additional grant and concessional funding to developing country Parties to meet the incremental costs of actions designed to provide global environmental benefits in the area of climate change by reducing emissions of GHGs. Approach: The Flexibility Mechanisms are market-based mechanisms designed to help countries meet their GHG reduction targets in the most cost-effective manner. Funding: Mandatory contributions are made to the GEF Core Trust Fund with amounts based on the burden-sharing formula for the 10th replenishment of the International Development Association. New funds are not required under the UNFCCC. The Flexibility Mechanisms do not currently receive financial assistance from the Convention. Mode of Operation: The GEF Council is responsible for operations. Number of Projects: 150 (as of June 1998). Impact: Not available. 5. United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification Mechanism: Global. Purpose: To boost the effectiveness and efficiency of existing financial sources used to combat desertification and to locate additional new and innovative financing sources. Funding: The mechanism does not collect funds, but rather mobilizes funds from existing sources. Mode of Operation: The Global Mechanism has a Managing Director and operates under the authority and guidance of the COP. Number of Projects: None. Impacts: Not quantifiable. * The Flexibility Mechanisms fall under the Kyoto Protocol, which has not yet been ratified.

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the available information, there have been relatively few projects approved for funding (with the exception of the Montreal Protocol). Furthermore, of the projects approved for funding, it appears that many of them have not yet produced results or do not have quantifiable impacts (for example, training or informational in nature), do not or are not required to report results, or are difficult to quantify. In other words, it is difficult to assess the impacts of the various mechanisms. If one only considers the number of projects, the mechanisms do not appear to be having a significant impact on capacity building.

Obstacles to Effective Capacity Building In recent years, much attention has been devoted to capacity building. Many lists have been compiled regarding capacity building needs. However, not enough attention has been given to strategies to overcome the fundamental obstacles to building capacity for environmental agreements. The fundamental barriers that greatly hamper progress include the following: insufficient funding and human resources coupled with high costs; insufficient attention to root causes (for example, institutional weaknesses and political plausibility); inadequate management by conventions; market barriers; lack of incentives for relevant participation by all stakeholders; lack of strategies for long-term capacity retention and poor coordination across environmental management regimes and international environmental conventions (UNEP, NASA, and World Bank 2000). These particular obstacles are widely distributed and may be found in both developed and developing countries. However, the extent to which they exist and their exact nature varies from country to country. The rest of this chapter concentrates on a few ways in which these obstacles may be overcome.

Options for More Effective Capacity Building The recommended options for more effective capacity building for the implementation of international environmental agreements include two general approaches and two specific strategies. The first general approach, intended for development at the individual convention level, is a capacity building management unit. The second general approach, intended for development at the United Nations subsidiary and specialized agency level, is the broader systems approach. The two specific strategies highlighted in this chapter include linking convention regimes and engaging the private sector.

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Capacity Building Management Unit Every convention should mandate the creation of a capacity-building management unit (CBMU) that would operate at the individual convention level to ensure that the process of capacity building is managed, not just articulated. A special unit dedicated to the management of capacity-building activities will allow countries in concrete terms to actually implement the obligations of a treaty. The CBMU would be operational before treaties enter into force and would be an active participating body in the development of a convention and actual negotiations. The early operation would be much like many of the ad hoc technical working groups that are included in many conventions before they enter into force. In the early stages, the unit would primarily be conducting research on capacity building needs and enhancing the participation of countries in the treaty negotiations. As countries begin to ratify a convention, the unit’s role would switch to the active promotion of capacity building strategies and specific projects. The early operation of the CBMU could potentially provide a better understanding of what individual countries can actually achieve and thus be expected to accept as obligations in the negotiations of the treaty itself. Furthermore, the unit would focus on how the treaty itself can assist the developing countries with implementation of the treaty-prescribed measures. As a first step, the management unit needs to clearly define what is meant by capacity building/development as it specifically relates to the given convention. A clear definition will facilitate a better focus on efforts to be undertaken. Other general responsibilities of the CBMU would be to • Define the responsibilities involved in the management of the implementation of treaty-specific capacity-building activities (to be included as an article of the treaty). • Define the areas that should be the focus of capacity building and how it should be undertaken in terms of activities, concrete programs, and institutional arrangements. • Develop innovative and flexible mechanisms for building capacity (for example, technology cooperation approaches). • Gain an understanding and assist in defining the existing capacities of each country. • Assist in the clarification and prioritization of what each country needs (technical expertise, and so on). • Identify the relevant stakeholders and develop strategies to enhance their involvement. • Evaluate successes and failures and actively promote successes. • Evaluate progress of all countries. • Concentrate on resolving issues for countries experiencing difficulties.

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• Promote and enhance access to relevant technical, legal, and economic information. • Promote the removal of barriers to technology transfer. The responsibility of the CBMU is to oversee and ensure that capacity building activities are being funded and carried out, not to actually perform all activities. However, the CBMU is expected to actively promote capacity building in all countries and to play an active role in the successful implementation of convention measures. The major challenge of the CBMU is to develop the practical steps to attain identified capacity-building needs. The unit would be responsible for making sure that certain countries are not being forgotten. If they are, the unit must concentrate efforts on helping those countries that are slipping through the cracks. In addition, the unit should build flexibility into its mandate to account for the fact that responsibilities will change and evolve as the convention enters into different stages of implementation. Institutional Set Up. Before a convention is ratified, the CBMU will be set up

as an ad hoc working group. Once a convention is ratified the CBMU will operate under the auspices of the convention’s secretariat. Many convention secretariats already have an “implementation” group. Depending on the design and function of this group, the CBMU concept may simply be a redefining of the responsibilities of such a group or an additional subgroup. The CBMU should be a shared-chair arrangement with one representative from the developed countries and one representative from the developing countries. These chairs should be determined by the conference of the parties. The group will be a multidisciplinary task force comprised of technical and regional experts as dictated by the needs of the specific convention. The CBMU will actively seek out joint efforts with other relevant secretariat groups, including science, technology, information, and outreach (for further details on joint efforts, see section below on linking convention regimes). The institutional set up of the unit should be designed to provide for early implementation of high impact capacity building activities and to handle and respond to difficulties being experienced. A key responsibility of the CBMU will be to develop innovative strategies and mechanisms for capacity building. Two specific strategies to be considered for the CBMU are linking convention regimes and engaging the private sector through direct marketing and collaboration with business schools. These strategies are illustrated in detail in the section on specific strategies below. The POPs Capacity Building Fund. Canada and the World Bank have recently

(April 2000) signed an agreement to establish a Canadian trust fund of approximately $14 million in an effort to reduce or eliminate the release of persistent

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organic pollutants (POPs) from developing countries. The primary objectives of the funding will be to help developing countries and economies in transition (EIT) to build their commitment and capacity to take measures to reduce the release of POPs; to engage the commitment and support of developing countries and EITs for the anticipated UNEP convention on POPs and other POPs agreements; and to participate in activities that will address POPs issues of concern to a number of countries, including Canada. In addition, the World Bank news release announcing the trust fund included an editor’s note that stated, “There is potential for a number of Canadian environmental companies to access the fund in partnership with the developing countries in working with them to meet their commitments” (World Bank, 2000). Although the POPs Capacity Building Fund may not necessarily involve the direct management of capacity building as recommended for the CBMU, the Fund does specifically focus on capacity building and has been set up before the POPs agreement has entered into force to enhance the involvement during negotiations and the ultimate obligations committed to by the developing countries and EITs. Though it is too early to determine the success of this fund, it is an encouraging initiative. Systems Approach The focus of ad hoc treaty regimes is often too narrow to allow for the capacity building needs associated with institutional weaknesses and long-term capacity retention. A systems approach, functioning at the level of United Nations subsidiary and specialized agencies, could emphasize environmental capacity building at the local, national, and regional levels to support the regulatory frameworks, information, knowledge, and technologies that ultimately feed into improved overall global environmental management (as defined by the UNDPGEF Capacity Development Initiative). A systems approach could provide a more comprehensive, programmatic approach to capacity development. The systems approach concentrates on preventative measures instead of remediation, on which conventions tend to focus. The systems approach would focus on strengthening capacity at the political and economic systems level. As a result, this approach fosters more effective long-term capacity retention. In fact, the main objective of the systems approach should be long-term capacity retention for good environmental management. Capacity-building activities should facilitate transfer of capability and responsibility to more permanent institutions and organizations. After all, the amount of aid or technology given to a country or entity does not matter much if the level of dependency only increases. The body responsible for carrying out the activities of capacity building at the systems level approach would be an independent body under the auspices of

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a United Nations subsidiary or specialized agency, for example, UNDP or UNEP. The systems capacity building body would consider the obligations of all MEAs or a related group of MEAs. It would be similar to the Commission on Sustainable Development (CSD), which was created to implement Agenda 21. In fact, the CSD could expand its mandate to build capacity at the systems level for a group of related conventions including climate change, biodiversity, desertification, and forestry. To some extent, it already considers the implementation of these conventions as they relate to Agenda 21. One very important role of the systems level capacity-building body will be to act as a link to the multilateral development banks (MDBs). In this role, the body should promote sound environmental policies, programs, and projects within MDBs, including increased environmental sector lending use and consideration of environmental factors in lending policies. Many MDBs claim that they have already integrated environmental factors into their policies and projects. However, the MDB projects and policies need to be made consistent, specifically with the objectives of multilateral environmental agreements. The systems level capacity-building body could provide technical environmental support to MDB projects and facilitate bank staff understanding of the links between natural resource degradation and current development models (especially in the area of structural adjustment lending). UNDP’s Capacity 21. An example of a broader systems approach to capacity building includes UNDP’s Capacity 21. Capacity 21 was created to assist developing countries build their capacity to integrate the principles of Agenda 21 into national planning and development. Agenda 21 is a statement of willingness to strive for a form of development that recognizes the linkages between economic growth, social equity, and protection of the environment. In a little over two years of operation, Capacity 21 has assisted more than 50 countries in activities such as: integration of institutions, strategies, and changes in governance; increased participation of civil society; and development of sustainable practices following reconstruction and transition (UNDP 2000). Since Capacity 21 is in its initial stage, it is not possible at this time to assess its effectiveness.

Specific Strategies Several strategies could be developed to strengthen capacity building. Linking Convention Regimes Poor coordination across environmental management regimes and international conventions leads to confusion, duplication, and waste of resources. While the many requirements of MEAs are essential to meeting the environmental objectives

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of these agreements, they can also place a great burden—both in terms of financial as well as human resources—upon countries. MEAs could be made more efficient, and hence more effective, if relevant linkages among related agreements were exploited and turned into joint efforts. Linking related treaty regimes could comprehensively deal with ways to eliminate waste and duplication, especially with respect to funding. There have been very few papers written regarding the concept of convention regime linkage,3 and no concrete assessments or efforts to specifically coordinate activities between related conventions have been performed. New efforts are needed to stimulate collaboration, cooperation, and greater harmonization between MEAs. Treaty negotiations should mandate shared or coordinated institutions among relevant conventions. These include coordination mechanisms with joint secretariat meetings to ensure that implementation of one convention enhances implementation of related conventions. If overlapping activities are not coordinated, it results in multiple commitments to prepare inventories, reports, plans, and public information programs, which can lead to in-country confusion, conflicts, and waste of resources. Each convention should have a working group that searches out ways to eliminate waste and duplication across conventions. This working group could be part of the CBMU. When the CBMU determines countries’ capacity development needs for responding to a convention, it should be determined if there are any capacity development needs that cut across conventions. By cooperating and pooling together efforts and resources across the MEAs, implementing countries can carry out their obligations in ways that greatly leverage their participation by reducing costs and by relieving the burden of multiple reports and other requirements. Furthermore, the pooling together of financial resources could be handled by a joint fund. In order to link convention regimes, the responsible working group will be required to: collect information on the background and contents of the potential linking conventions; perform an assessment of how they overlap and are complementary (the cross-cutting issues) and how they conflict or have gaps; and develop different approaches to producing international and country-level synergy among them. An example of how an initial assessment would be performed is provided below. It is important to note that a possible problem posed by the linking of activities and joint-convention funding is that not all the same countries will necessarily be parties to the conventions being linked. However, this could also be considered an incentive for countries to ratify all conventions that are a part of joint efforts and joint funding mechanisms. There is currently underway an example of regime linkage for capacity building that is worth examining in detail. It involves the International Legally

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Binding Instrument for Implementing International Action on Certain Persistent Organic Pollutants (POPs); the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal; and the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.4 Hereafter, the agreements are referred to as POPs, Basel, and PIC, respectively. These agreements share a common concern for the problems posed by hazardous chemicals. The Basel and the PIC conventions are mostly concerned with the control of transboundary movements of hazardous substances while the POPs Agreement is concerned with the global elimination of production and use of an especially hazardous group of chemicals known as persistent organic pollutants. Each of these agreements overlaps in terms of the substances covered and in terms of the obligations required of their parties (such as research, reporting, and training). To determine potential joint-convention activities, it will be necessary to consider the overlaps and gaps between the MEAs regarding the actual coverage of the specified persistent organic pollutants. Two specific spheres are assessed: the specified POP substances covered by the agreements, and the coverage of the POPs’ life cycle. POP Substances Covered by the Agreements The Basel Convention is concerned only with hazardous wastes and materials headed for recycling or reuse. The PIC procedure specifically does not apply to wastes but to banned or severely restricted chemicals and severely hazardous pesticide formulations. Likewise, the POPs agreement pertains to all materials5 containing the designated persistent organic chemicals (for example, pure substances, wastes, inputs, by-products, and so on). It addresses the production, use, storage, and disposal of the specified POPs. As currently drafted, the POPs agreement consists of 12 identified persistent organic pollutants. Nine of the 12 POPs are pesticides used on agricultural crops and for public health vector control (aldrin, chlordane, dieldrin, DDT, endrin, heptachlor, hexachlorobenzene, mirex, and toxaphene). The remaining three chemicals include PCBs, dioxins, and furans. PCBs are used for many industrial purposes, most commonly as additives to oils in electrical equipment and hydraulic machinery. Dioxins and furans are unintentional industrial byproducts that have no known use. Regarding the Basel Convention’s inclusion of POPs, UNEP (1999a) states that most, if not all, of the dozen identified POPs, when defined as wastes (that is, destined for final disposal or recycling) and subject to transboundary movement,

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will be characterized as hazardous wastes under the Basel Convention. However, it is important to point out that the Basel Convention specifically lists only a few POP substances in its Annex I (categories to be controlled) and Annex III–V (wastes to be included in the Ban Amendment), in particular waste substances and articles containing or contaminated with PCBs; and congenors of polychlorinated dibenzo-furan and of polychlorinated dibenzo-p-dioxin. Most important to note is the potential POP loopholes that may exist in the Annex IX, List B wastes that are not to be included in Article I of the Basel Convention. These possible loopholes are discussed below. As far as the PIC procedure is concerned, the 27 particular chemicals listed include seven of the 12 identified POPs. The five that are not specifically listed are endrin, mirex, toxaphene, dioxins, and furans. However, the PIC procedure does provide for pesticides and industrial and consumer chemicals already banned or severely restricted for health or environmental reasons by the participating countries to be included in the procedure (once receiving COP approval). Therefore, it seems reasonable to assume that once a country has ratified the POPs agreement, the 12 identified POPs would count as banned or severely restricted chemicals by that country and, hence, would be included in the PIC procedure. It is important to note possible inconsistencies and problems associated with the various exclusions of the three MEAs. Especially alarming are the possible loopholes created by the nonhazardous waste list (B) of the Basel Convention, which would exempt from the Ban Amendment those wastes that are considered to be safely (and profitably) recycled or reused, including scrap iron, steel or copper, certain electronic assemblies, nonhazardous chemical catalysts, and many ceramic, solid plastic, paper, construction, and textile wastes (many of which could contain traces of PCBs). Although the Basel Convention states that these items are excluded only if they do not contain harmful levels of toxic chemicals, there still remains the ambiguity of determining the presence and level of contamination. Furthermore, the fact that substances such as POPs bioaccumulate makes accumulation of small quantities dangerous over time. Coverage of the POPs’ Life Cycle Both the Basel and the PIC Conventions are mostly concerned with the control of transboundary movements of hazardous substances while the POPs Agreement is concerned with complete elimination of production and use globally. This section identifies the ways in which the various stages within the life cycle of POPs are covered by the different conventions. The Basel Convention measures would cover POPs in the stages of transport and disposal. The PIC Procedure would cover PIC-specified POPs (see previous

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section) during transport. Furthermore, the PIC Procedure affects the production and use of POPs by requiring that countries shall ensure that domestic use and production are subject to the same conditions as import. The POPs agreement, as currently written, provides provisions concerning the phase-out of production and use and the disposal and destruction of POPs. However, there are no specific measures regarding possible transboundary movements of the substances in the interim period while the phase-out is taking place. There is not one single stage in the life of a POP substance that is covered by all three agreements. It appears that coordination between the agreements would provide for fuller coverage. Areas for Potential Cooperation There are operational overlaps among the agreements which create a great opportunity to cooperate and be more efficient, especially between the Basel Convention and the POPs Agreement. Examples of improved efficiency through joint efforts on overlapping activities: • All require an information system, which would be developed more costeffectively if it were shared by the other agreements. • All would benefit from sharing training workshops, methods, and materials. • It would be more efficient for all to share education and awareness materials and programs. • There would be many common themes and messages. • Cooperative research and development of technical guidelines could lead to much-needed common methods for the identification of hazardous materials as well as greater understanding of the environmental, social, economic, and human health impacts. • All would benefit from more efficient and effective monitoring through coordinated import/export measures and the use of common documentation and reporting forms. • All agreements currently lack effective technology transfer and funding assistance mechanisms. By creating a joint-convention fund and a shared technology clearinghouse, the shared or coordinated activities could draw from a larger pool of money and use the financial resources more efficiently. Through a comprehensive review of the measures of each of the agreements and an assessment of the overlaps and gaps, many action areas have been identified for cooperation that would enhance not only the POPs Agreement, but also the Basel and PIC Conventions. Table 11.2 lists many potential areas for concentration of joint efforts.

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TABLE 11.2. OVERLAPPING ACTIVITY AREAS FOR POTENTIAL JOINT EFFORTS BETWEEN BASEL, PIC, AND POPS. Activity Area Data Collection & Reporting Development of Country Profiles (for example, National Inventories) Reporting/Monitoring (for example, compliance steps taken by Parties) Electronic Information Systems Impact Assessments (for example, environmental, health, economic, social) Research (for example, alternatives, environmentally sound disposal/destruction techniques) Establishment and Administration of Supporting Structures Development of Country Action Plan Regional and Subregional Support Units Technical/Scientific Working Group Training of In-country Professionals and Officials Assistance for Environmentally Sound Management of Hazardous Chemicals (including disposal, destruction, and clean-up) Development of Technical Guidelines (for example, common definitions) Development and Implementation of National Regulations (for example, legislation) Enforcement of Noncompliance Measures Clearinghouse for Technical Information (for example, diffusion of alternative technologies) Explicit Dispute Resolution Mechanisms Import/Export Measures Import/Export Documentation (for example, identification and safety sheets) Specified Labeling and Packaging

Basel

PIC

x x x x

POPs

x x x x

x

x x x x

x x x x x

x x

x

x

x

x

x

x

x x

x x

x x

x

x

x

x

x

x

x

x

x

x

x x x x x

Public Education/Awareness Development of Public Information Materials and Dissemination Public Outreach–Participation Programs

x

x

x

x

x

x

Conference of the Parties (Creation of a Joint Secretariat) Periodic Meetings Periodic Evaluation and Adjustment of Goals and Procedures

x x

x x

x x

Funding Mechanism Joint-Convention Funding

x

x

x

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Engaging the Private Sector It is widely recognized that the private sector plays an important role (at least in some countries) in the development, transfer, and finance of technologies. In reality, the nation-state on its own is usually not very effective at implementing the measures of multilateral environmental agreements without the cooperation and assistance of the corporate world. This is in large part due to the fact that much of the technical, institutional, and financial resources and expertise needed to mitigate environmental problems is in the hands of the corporate world. Furthermore, multinational corporations are directly and indirectly responsible for much of the environmental degradation the world is currently experiencing. The involvement of the private sector is critical to capacity building and a concentrated effort should be on obtaining their involvement. The CBMU should facilitate the appropriate role of the private sector in capacity building for international environmental agreements. The CBMU needs to communicate a concrete message as to the contribution of business to environmental dilemmas and set specific technology transfer goals for the private sector. As a part of engaging the private sector, it will be very important and advantageous for the CBMU to encourage and develop working relationships and joint strategies with relevant organizations and agencies, including: U.N. Conference on Trade and Development (UNTAD), Division on Transnational Corporations and Investment (DTCI), U.N. Commission on Sustainable Development, the World Economic forum, universities with business management programs, Organization for Economic Cooperation and Development (OECD), and others. Two possible strategies to engage the private sector include the active marketing of business opportunities in environmental management-based projects and collaboration with business schools on integrating the business opportunities created by environmental agreements into the course curriculum. Marketing Business Opportunities The CBMU should actively market business opportunities to the private sector and stimulate private sector investment in the transfer of environmentally sound technologies and know-how to developing countries. The CBMU would be responsible for actively seeking out information on successful projects and promoting those successes by developing marketing materials that countries can use and adapt to their own countries. This would help diminish the concerns of some developing countries about their attractiveness to projects from other countries.

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Relevant marketing activities include • Identifying potential investment projects and helping to develop national policies regarding them • Developing a pilot pipeline of possible projects for different financing opportunities • Identifying potential sources of financing • Creating mechanisms for mobilizing international investment • Developing promotional materials on a regional basis • Organizing conferences for international investors interested in supporting the development of certain regions • Promoting environmentally sound economic development activities that will attract investment, produce jobs, and strengthen human resource capacity • Using the cost/benefit approach when framing projects • Demonstrating how good environmental practices can enhance corporate value • Promoting incentives to increase rent capture First and foremost, the CBMU needs to target private sector motivation. Possible motives include: strategic market development in developing countries; public relations; revenue-generating activities; fear of eventual government regulation; and reducing the costs of production. Conventions that provide significant opportunities for revenue-generating capacity building activities include the Forest Convention, the Convention on Biological Diversity, and the Climate Change Convention. According to Dow Chemical president and CEO William Stavropoulos, profitdriven efforts by industry, rather than regulations or activism, are becoming the primary drivers of environmental progress (Fairley, 1996). By 2005, Dow plans to reduce emissions of 29 priority chemicals by 75 percent, reduce releases of 635 other chemicals by 50 percent, and cut waste, waste-water, and energy use per pound of the product in half. Stavropoulos says meeting the goals will require one billion U.S. dollars in capital investment. In order to identify the full benefits of environmentally sound technology, a cost-to-benefit analysis must consider the reduction of costs over the correct time period. Stavropoulos says a 10-year time frame for the stated improvements is key to achieving the 30–40 percent return he is expecting on the investment. Furthermore, he suggests that improving voluntarily is also critical. Voluntary pollution prevention projects at Dow net an average 53 percent return on investment, compared with an average loss of 16 percent on government-mandated projects.

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The Private Sector and Climate Change The recent activities of the private sector regarding climate change provide an important insight into the motivations of the corporate world and its potential impact on environmental policy. Just as matters looked hopeless for the ratification of the Kyoto Protocol, international corporations have changed their stance and are taking actions to reduce GHGs on their own. In the corporate arena, the debate over climate change seems to have shifted from arguments about the science to discussions over what means should be used to take action. In the United States, many large corporations are beginning to align themselves with scientific consensus and are taking concrete steps to reduce greenhouse gas emissions even though the U.S. Congress has not passed legislation affecting greenhouse gas emissions and the United States has not ratified the Kyoto Protocol (and, hence, the country is not yet bound to reduce any GHGs). During the last two years, 21 large international firms representing $550 billion in revenues have affiliated themselves with the Pew Center on Global Climate Change. As part of this affiliation, these companies have publicly declared to accept the science of global climate change; to meet their own emission reduction targets; to accept the Kyoto Protocol as a first step to address climate change; and to support the view that reducing greenhouse gas emissions can be compatible with sustained economic growth (Pew Center 2000). One company having a significant impact on the United States and internationally is DuPont. DuPont has pledged to keep its total energy use flat, to reduce its greenhouse gas emissions by 65 percent by 2010 (1990 base year) and to obtain 10 percent of global energy use from renewable resources by 2010 (C&EN 2000). This last pledge sends a strong and important signal to the energy market as a whole; the signal that there will be a big renewable energy user in the market. DuPont’s pledge to use renewable energy is substantial. It represents approximately 300 megawatts, or 17 percent of current U.S. renewable energy capacity (C&EN 2000). Table 11.3 provides examples of the many international corporations that are taking actions to combat climate change. The private sector’s changing policy stance regarding climate change most likely will have a huge impact on the policy stance of the U.S. Congress and, hence, on the success of the Kyoto Protocol. If history repeats itself, this will be the case. The U.S. did not support the measures of the Montreal Protocol on Banning the Production and Use of Substances that Deplete the Ozone Layer until DuPont developed an alternative substance to replace the ozone-depleting substances. This development resulted in DuPont switching its position from strongly opposing the Protocol to strongly pushing for its ratification (in light of their projected profits on the sale of the new alternative).

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TABLE 11.3. EXAMPLES OF INTERNATIONAL CORPORATE VOLUNTARY ACTION ON CLIMATE CHANGE. Company

GHG Emissions Reduction Activities

DuPont

Keep total energy use flat Reduce GHG emissions by 65 percent by 2010 (1990 base year) 10 percent of global energy use from renewable resources by 2010 Research and development of fuel cells and photovoltaic cells

BP Amoco

Reduce GHG emissions by 10 percent by 2010 (1990 base year) Use GHG emissions trading within its own operations Strong support of the Kyoto Protocol

European Auto Industry

Voluntary agreement to reduce carbon dioxide emissions from cars

Semi-Conductor Industry (including Intel) United Technologies

Worldwide pledge to reduce emissions of perfluorocarbons (PFCs) by 10 percent Installed 180 fuel cells in banks, hospitals, police stations and military installations Researching fuel cells for buses and cars

American Electric Power (AEP)7

Researching sequestration of carbon dioxide from deep saline aquifers, depleted natural gas wells, and coal mines

General Electric and Plug Power Ballard Power Systems (Canada)

Make one million fuel cell systems by 2001 Manufacture fuel cells for buses Supply fuel cells to Daimler Chrysler and Ford

General Motors and Monsanto

Working with World Resources Institute on strategies to reduce GHG emissions

Shell Oil

Reduce GHG emissions by 10 percent by 2010 (1990 base year)

Daimler Chrysler and Ford

Mass production of fuel cell vehicles by 2004

It is only in the last six months that positive corporate action has gained momentum. In fact, many of the companies that are now taking positive actions and supporting the Kyoto Protocol are the same companies that previously strongly opposed the measures of the Protocol. Before turning “green,” these same companies belonged to corporate groups working to counter efforts to cut greenhouse gas emissions. The most notable example is the Washington, D.C.-based Global Climate Coalition (GCC). GCC is an industry trade group best known for public relations campaigns that oppose the Kyoto Protocol and are designed to raise doubts about the reality of global warming.6

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Private Sector Motivation A main motivation for the recent GHG emissions reduction actions taken by multinational corporations (MNCs) is that many business leaders have come to believe that addressing climate change can be compatible with a growing U.S. economy (a view in contrast to that of GCC, which holds that meeting the Kyoto targets would throw the United States into recession) (Pew Center 2000). Furthermore, it has been recognized that many of the measures to reduce GHGs (for example, energy efficiency measures) simply make smart business sense in reducing the costs of production. For example, several European chemical companies have saved about 70 percent of their total energy use with new catalysts and simple process changes (Rocky Mountain Institute, 2000). On the other hand, it is very important to note that multinational corporations are not isolated from the influence of external factors. In fact, much of their motivation has to do with the fear of eventual government regulations and public opinion. Many MNCs think that the U.S. government will eventually take some form of domestic action on climate change (besides the current voluntary programs) and, therefore, companies are taking action preemptively. Another reason for the sudden shift in corporate attitude towards climate change is that companies want to maintain a positive public image. Shareholder resolutions and student activism have succeeded in raising some companies’ awareness and ultimate positive action on climate change. For example, Ford Motor Company, General Motors, and Texaco pulled out of the GCC after they were targeted by shareholder resolutions and by student campaigns at 20 universities that called on the schools to sell their stock in GCC member companies (C&EN, 2000). An example of a successful initiative involving the marketing of environmental projects to the private sector is the U.S. Environmental Protection Agency’s (EPA) Green Lights Program. The voluntary Green Lights program promotes the use of energy-efficient lighting technologies that reduce emissions of pollutants associated with global warming, acid rain, and smog. By investing in these technologies, Green Lights’ participants realize average returns of 25 percent, with average savings in lighting electricity bills of 50 percent or more (US EPA, 2000). The EPA actively markets the Green Lights Program to the private sector through telemarketing and information campaigns on the profitability of the investment. To market the initiative, the Green Lights Program • Demonstrates lighting as an investment—a source of profits • Provides informational tools to help lighting investors make an informed upgrade decision • Maintains a registry of financing resources available free of charge to all Green Lights participants

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• Promotes energy-efficient lighting technologies as cost-effective and high-quality products to customers and informs manufacturers about the benefits of investing in new technologies • Provides technical support, including a technical services hotline, workshops, and a comprehensive lighting upgrade manual • Places public-service advertising in major magazines, newspaper articles, reports on new lighting technologies, and other materials The program currently has over 1,900 participants, representing over five billion square feet of facility space. On average, participants have reduced their energy consumption by 48 percent. Lighting accounts for 20–25 percent of electricity used annually in the United States. Lighting for industry, businesses, offices, and warehouses represents 80–90 percent of total lighting electricity use. Collaboration with Business Schools In collaboration with business schools’ MBA programs, the United Nations (that is, CBMU) should develop and disseminate curriculum materials to business schools describing the opportunities for investment and growth in environmental projects in a convention-specific context. U.N. representatives (or contractors) could give lectures on the business opportunities that exist as a result of international environmental agreements. These activities provide a great opportunity to educate and shape the mind frame of the future business leaders of the world on why they should care about environmental problems and the role of business in resolving the problems. Many business schools have shown an interest in environmental management concerns and investment in environmental projects. For example, many schools have developed environmental business programs and courses, such as the Corporate Environmental Management Program at the University of Michigan, which is a joint masters degree between the Business School and the School of Natural Resources and Environment.

Monitoring Capacity Building An important role of the CBMU and any capacity building initiative will be to monitor the progress of individual countries’ improvement in capacity. The benefits of monitoring are manyfold. Monitoring allows lessons to be learned from successes and failures. Through monitoring, the CBMU will be able to determine the difficulties countries are facing and which countries are in need of further

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assistance. Furthermore, monitoring is a tool to evaluate the progress of the CBMU programs and projects. It is important to every organization to measure the effectiveness of their efforts. The success of the CBMU-related projects and programs will need to be measured against the specific objectives of a given convention. The ultimate goal of monitoring is to help estimate change induced by capacity-building strategies and projects. As illustrated previously in this chapter, it is difficult to assess the effects of capacity-building efforts. The great challenge is to identify accurate indicators of progress in capacity building; not only at the project level but more importantly at the country level. It will be necessary to develop indicators and accounting systems to track progress of technology transfer, improvement of environmental quality, and successful implementation of the environmental objectives of a given treaty. Furthermore, indicators are needed to measure overall changes of conditions in economic, social, and environmental systems. These indicators could make up an index somewhat like the U.N. Human Development Index. Developing such indicators is a very complicated task and is beyond the scope of this chapter. However, it is important to note that research into the development of environmental management indicators is being done by the World Economic Forum (WEF) and others. WEF is currently in the process of developing an Environmental Sustainability Index (ESI).8 The long-term goal of the ESI project is to find a single indicator for environmental sustainability in the same way GDP gives a single figure for an economy. Over time, the ESI is expected to add value to the field of measuring and ranking national performance and provide a useful tool for governmental policy makers, and leaders in industry and finance as well as environmental officials and policy analysts (WEF, 2000). The relevance of the ESI project to measuring progress in capacity building is in the components that make up the index. The pilot ESI incorporates environmental data into a comprehensive aggregate structure, organizing 64 variables into 22 factors, which are further organized under five core components: environmental systems, environmental stresses and risks, human vulnerability to environmental impacts, social and institutional capacity, and global stewardship. Hopefully, the research into the development of this ESI will be applicable to measuring environmental capacity building efforts. At the very least, some useful general indicators should be gained from the social and institutional capacity component. The goal is to present the Index at the WEF Annual Meeting 2001. Once reliable indicators are developed, the CBMU could provide national programs with menus of types of indicators that suit the local context and specific

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convention. Careful and effective monitoring and reporting will ensure continued quality control and valuable learning experiences that will contribute to the improvement of current and future capacity building activities.

Conclusions Two main capacity-building approaches and two specific strategies have been recommended to overcome several barriers to effective capacity building for the implementation of international environmental agreements. First, on the individual convention level, a capacity-building management unit (CBMU) should be developed to ensure that the process of capacity building is managed, not just articulated. This suggestion attempts to overcome the inadequate management of effective capacity-building activities and programs by conventions. Second, on the U.N. subsidiary or specialized agency level, a systems level approach to capacity-building should be adopted. This approach will overcome the insufficient attention to root causes (for example, institutional weaknesses and political plausibility) and the lack of strategies for long-term capacity retention. Third, as a specific strategy for the CBMU, related convention regimes should be linked to eliminate duplication, confusion, and the waste of resources. This strategy addresses the obstacles of insufficient funding and human resources coupled with high costs and poor coordination across international environmental conventions. Fourth, as a specific strategy for the CBMU, efforts should be made to engage the private sector through actively marketing environmental business opportunities and collaborating with business schools. This strategy aims to overcome insufficient funding and human resources, market barriers, and lack of incentives for relevant participation by all stakeholders. Lastly, it is important to develop indicators of progress in capacity building. An Environmental Sustainability Index will provide insight into possible indicators.

Notes 1. The UNDP defines the difference between the terms “capacity building” and “capacity development”; the former is an externally driven process, and the latter is self-motivating and takes place gradually from within. 2. It should be recognized that this does not represent an exhaustive list. 3. See UNDP (1998); Synergies in National Implementation: The Rio Agreements; and UNEP, U.S. NASA, the World Bank (UNDP, 1998).

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4. It should be noted that POPs and PIC have not yet entered into force and are still under negotiation. 5. Except where special exemptions are specified. 6. Ford, Daimler-Chrysler, General Motors, Texaco, and Southern Co. have withdrawn from the GCC. 7. American Electric Power is the second-largest U.S. investor-owned power company. 8. The ESI project is a collaborative effort between the Global Leaders for Tomorrow Environment Task Force, the Yale Center for Environmental Law and Policy, the Center for International Earth Science Information, and the World Economic Forum. Further information pertaining to the ESI may be obtained from the World Economic Forum website at http://weforum.org/.

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Y PART FOUR

POSSIBLE NEW TREATIES Utilizing the Elements of a New System

espite the large number of new environmental treaties that have been negotiated during the past 30 years, many gaps and environmental problems remain completely unaddressed. For example, the suggestion that it may be necessary to insulate the global nitrogen cycle from too much human alteration in order to protect biodiversity, agriculture, and ecosystem services reminds us of the reach of human actions to the ultimate corners of the planetary operations system. What other geochemical cycles (sulfur, phosphorous, hydrological) need protection as well? Each of the new treaties proposed here addresses either a neglected commons issue or a new, innovative global strategy. Economic globalization creates the need for globalization of the environmental protection system as well. When the last fish or uncut tree is available to any taker, and the export of goods can go to any market, it becomes imperative to have a global system of information and management that can assure the sustainable use of resources. Trade can also bring along alien species in the ballast water of ships that can cause billions of dollars of damage to the importing country. It is also a bit jarring to learn that there is no global agreement on standards and procedures for nuclear waste shipment and disposal. Surely nuclear waste cannot be considered just another global commodity to be sent to the country most willing to accept it—or can it? However, trade can also have positive effects when it promotes the international trade in renewable energy technology. Looking at a technology transfer

D


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mechanism rather than a pollution control strategy for reducing the dangers of climate change represents the positive potential for an improved international trade regime. Yet there remains an ongoing conflict between trade and environment, and over whether to develop a cooperative or a competitive set of treaty regimes. In keeping with the general tone of this book, the discussion here centers upon cooperation. Several of the proposals address issues related to trade directly. Creating greater capacity and responsibility for the environmental implications of trade within the WTO follows in the path already trod by NAFTA and the European Union, though this course has been opposed by many in the global trade community. The chapter on “Creating an Environmental Right to Know” borrows a highly successful information and transparency strategy for the Toxic Release Inventory from domestic U.S. legislation and reconfigures it to cover a wide array of international issues. Will it be judged a non-tariff barrier to trade? Ultimately, the development of capacity within the WTO to address environmentally related issues might hold the greatest promise for reducing environmental damage around the world. At the same time it will be necessary to educate NGOs about the potential to utilize the trade system for beneficial environmental purposes.


Y CHAPTER TWELVE

GLOBAL TREATY ON RENEWABLE ENERGY Fredric A. Beck

he current and potential impact of the use of nonrenewable fuels on the global environment and the global economy is great. The use of fossil fuels creates the potential for global climate change, transboundary pollution such as acid rain, and regional ecosystem damage due to extraction activities and accidental release of these fuels during transport. The use of nuclear fuels creates problems of transboundary radioactive pollution, as in the case of Chernobyl, hazards associated with the long-term storage of nuclear waste, and the threat of nuclear terrorism due to the continued production of plutonium and high-level radioactive wastes. As detailed by a number of publications, including The Limits to Growth (Meadows and others, 1992), Our Common Future (WCED, 1987), and the more recent biophysical perspective (Cleveland, 1991), the environment and the human economy are inexorably linked. Environmental degradation from the continued use of nonrenewable fuels will result in economic and social welfare losses. In the long run, all nonrenewable energy sources will run out. The earth is estimated to have another 2.5 billion years left before the sun evolves into a red giant (Mihalas and Binney, 1981). Humans have only been using fossil fuel resources intensively for the last 100 years, and already these minerals are becoming depleted and energy profit ratios1 are falling (Gever, 1991). At current rates of extraction, we will run out of fossil fuels well before we run out of solar energy. Renewable energy sources, if adopted on a global basis, offer a clean and sustainable alternative to many of the national and international problems of

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resource depletion and environmental damage posed by the use of fossil and nuclear fuels, and can help meet the atmospheric carbon reduction goals of the Framework Convention on Climate Change. However, renewable energy resources are currently economically unattractive on an international basis due to environmental externalities of nonrenewables; national energy policies leading to national and global market distortions that favor fossil and nuclear fuels; public good externalities; and lack of capital for renewable energy investment in developing countries ( Johansson, 1993). Even with optimistic assumptions, population and economic growth are expected to at least triple the global energy requirement by 2100 (Holdren, 1990). Without the use of renewable energy, this added demand will create more greenhouse gas emissions, acid rain, and potential radioactive isotope release, even if advanced clean fossil fuel technologies are employed ( Johansson, 1993; Duchin and Lange, 1994). If renewable energy sources are to play a major role in providing clean, safe, and reliable energy for a sustainable economic and environmental future, a concerted international effort to overcome the market failures that put renewables at a disadvantage is required. Despite the potential benefits, renewable energy has not yet been directly addressed in the context of an international environmental treaty. Even if market distortions are eliminated, renewables may not be economical compared to fossil fuels in all cases, at least in the short run. As proposed in this paper, a global treaty on renewable energy to create a framework for international cooperation could help reduce the barriers to global adoption of renewable energy sources, and could provide the long-term incentives needed to start on a more decisive path toward renewable energy. The longer market distortions stay in place, the longer it will take to reorient capital investment from nonrenewable to renewable fuels, and the more likely that potentially irreversible environmental thresholds will be encountered. As it does with many environmental issues, considerable scientific uncertainty about climate and ecosystem processes intersects with strong political, economic, citizen, and industry interests in the energy sector. An effective treaty must take into account the interests of all actors. The participation of the fossil fuel industry, as well as the energy technology industry, is key to the success of any global energy treaty. Because the convention or protocol approach leads to limited success in environmental treaties (Susskind, 1994), this paper uses elements of the Salzburg Initiative to develop an innovative approach to negotiating the formation of a global renewable energy treaty, incorporating directly the input of industry, the scientific community, and environmental NGOs to define linkages with greenhouse gas reduction, trade, and development goals to create a win-win, selfenforcing treaty on renewable energy. This global treaty on renewable energy can


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be implemented without requiring the formation of any new international organizations through an ad hoc international renewable energy forum which would help identify existing organizations, such as the IEA, IAEA, OECD, UNEP, and World Bank, appropriate for the implementation of the treaty goals.

Nonrenewable Energy Sources Nonrenewable resources comprise 90 percent of the primary energy sources in today’s world, and will continue to do so into the near and mid-term future if renewables are not adopted on a wide-spread scale. The key nonrenewable energy sources are uranium and fossil fuels. These include oil, natural gas, coal, and fuel wood. Some of the major issues associated with nonrenewable fuels and energy sources include environmental impacts, population growth and energy use, resource society and security, and sustainability. Environmental Impacts The damages caused to the environment by fossil fuels include transboundary pollution in the form of acid rain from sulfur and nitrogen oxide emissions; human health effects such as the triggering of asthma and lung tissue damage; plant damage and reduced crop yields due to low-level ozone from the combination of unburned hydrocarbons and nitrogen oxide emissions; probable global climate change from carbon dioxide and methane emissions; regional wildlife and habitat disruption due to the extraction and transport of fossil fuels; aesthetic impacts; and heavy metal mobilization. The damages to the environment and human health from the accidental or deliberate leakage of radioactive waste include cancer, birth defects, and genetic mutation of human, animal, and plant species. Radioactivity can easily cross national boundaries through water or airborne transport. Finally, detonation of thermonuclear warheads made from pirated plutonium can have severe negative consequences for human life, economies, and ecosystems. Market Failure There are a number of market failures related to the use of fossil and nuclear fuels. Because scientific uncertainty about ecosystem functioning and risks associated with climate change leads to imperfect information, the market does not receive accurate signals as to the true cost of climate change and other nonrenewable energy based forms of environmental degradation. At the same time, the


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true benefits of environmental services, such as waste assimilation and resource provision, are not accurately reflected in the market. Because individuals generally have shorter time horizons than society as a whole, the opportunity cost of uncertainty is much higher for the individual, leading to a propensity for shortterm environmental exploitation to the detriment of long-term sustainability. The same is true at a larger scale: Individual companies and nations, who may think in terms of quarterly or election-year cycles, do not have the same time horizon as the human race as a whole. Thus, while the use of fossil and nuclear energy may seem economical to the individual actor in the short term, the societal benefits of an accelerated transition to renewable energy are likely to be greater in the long run. Even where certainty may exist, the damages due to energy-based environmental pollution and ecosystem destruction, as well as health and safety issues such as mining accidents, are not fully accounted for in the price of fossil and nuclear energy, or in the products derived from their use. The price of fossil and nuclear fuels is heavily subsidized in many countries ( Johansson and others, 1993), creating significant market distortions that favor nonrenewable fuels over renewable sources. In the United States, the federal government officially controlled the price of oil from 1971 to 1981, and it still sets the price for some natural gas, keeping fuel prices low and discouraging the development of alternative fuels (Gever, 1991). The system of national accounts currently in use does not account for the depreciation of natural capital, and counts as GNP expenditures to abate pollution or to ameliorate environmental damage, giving a false signal to the market as to the actual cost of environmental damage. It has been estimated that environmental damage in general has a cost of two to four percent of global GNP, and up to ten percent of the GNP of certain developing nations (Pearce and Warford, 1993). Much of this damage is either directly or indirectly energy related. In many cases markets for environmental damages and benefits do not exist, and shadow prices for them may not yet have been accurately calculated. Further, some members of society will argue that environmental goods and services have intrinsic nonmonetary value. Where this is true, the shadow price technique will still undervalue the environment. Finally, the preferences of future generations are not reflected in current market prices. The final, and possibly the most important, market failure stems from the public good nature of air and water. While access to water and air may to some extent be limited based on national borders, these media flow unimpeded across national boundaries, making them effectively public goods, that is, nonrival and nonexcludable. The primary means of transboundary transport of the pollutants



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and toxins associated with nonrenewable energy use are the global media of water and air. Supranational regulation of global public goods is required because the private corporate and national marginal costs and benefits of these goods are different than the social marginal costs and benefits. This results in the underproduction or misuse of global public goods in the absence of some type of supranational agreement or regulation. Even if property rights could be assigned to these goods, according to the Coase theorem the market alone will not find the appropriate solution because nonzero transaction costs preclude a unique solution to identifying the optimal level of pollution. The interdependence of the global environment means that global cooperation is necessary to correct global environmental market failures and to regulate global public goods. Population Growth and Energy Use John Holdren estimates that a population doubling to ten billion people, combined with expected rates of economic development and fairly optimistic assumptions about decreases in energy intensity will lead to a tripled global energy demand, from the current rate of 11 Terawatts (one Terawatt equals 1 1018 Watts) to a rate of approximately 30 Terawatts worldwide by the year 2100 (Holdren, 1990). If population growth rates are higher than predicted, or the energy intensity of the economy increases, the total energy rate demanded could be as high as 50 Terawatts. Much of the new demand will come from the developing and newly industrialized countries, which are currently behind technologically, lack capital for clean energy development and often have high population growth rates and population inertia. Some developing countries, such as India and China, have significant fossil fuel resources in the form of coal. Without the development of renewables, fossil and perhaps nuclear fuel use in these developing countries will rise dramatically. Without question, fossil fuels do play an important role in the world’s energy future. Natural gas and clean fossil fuel technologies such as advanced gasification and combined cycle burning can raise conversion efficiencies and lower emissions significantly ( Johansson, 1993). Natural gas can also be used in fuel cells. However, energy scenarios that rely only on advanced fossil fuel technologies and do not include significant fractions of renewable technologies predict rising future carbon emissions ( Johansson, 1993; Duchin and Lange, 1994), not a stabilization of carbon emissions as has been called for by the Framework Convention on Climate Change. Additionally, “clean” fossil technologies are more capital intensive than current conventional fossil fuel technologies.


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Resource Scarcity and Security The trend toward rising energy use and heavy reliance on nonrenewable sources, which are often geographically heterogeneously distributed, creates problems of international dimensions, including national security problems and international conflicts as fossil fuel resources become more scarce. This has already been seen in the case of U.S. intervention in Iraq’s attack on Kuwait prior to the early 1970s, when the United States had enough production reserve to make up for any significant shortfall in the world oil market. However, since the United States passed its production peak in oil in the early 1970s (Gever, 1991; Cleveland and Kaufmann, 1991) the United States has not controlled the marginal barrel of oil on the U.S. market. This is evidenced by the inability of the United States to compensate for OPEC oil embargoes and pricing policies during the oil price shocks beginning in 1973 and 1979. Security externalities, such as the cost of fueling the U.S. Navy’s Seventh Fleet to maintain petroleum security in the Middle East (Tabors, 1996), and the cost of the Gulf War to U.S. taxpayers, are not factored into the cost of oil in the U.S. The United States is currently heavily dependent on oil imports. It is unlikely to find transoceanic natural gas transport economically feasible. For these reasons, diversification to include a significant portion of renewable energy sources would increase its energy security immensely. This is true for other energy-importing nations, such as Japan, Germany, and the United Kingdom.

Sustainability Global and regional environmental sustainability becomes impossible when the waste streams generated by the use of nonrenewable fuels exceed the assimilative capacity of the Earth’s ecosystems. The fact that since humans started burning fossil fuels atmospheric carbon has steadily increased, and large forested areas in Europe have been damaged from acid rain, is evidence that this is occurring now. Additionally, soils and water supplies are contaminated by gasoline and oil spills. Environmental degradation also negatively affects the global economy by requiring expenditures to counter the effects of pollution and climate change, which is an inefficient use of economic resources. Fossil fuels still in the ground constitute a capital endowment from nature to humankind. As stated by the Hartwick Rule of sustainability (Common, 1995), this natural capital must be reinvested, and not liquidated for consumptive purposes if it is to be managed sustainably. Investing fossil fuel rents into renewable energy capital now, before fossil fuels run out or the environmental degradation becomes too great, will allow renewables to yield a sustainable flow of energy services into the future.2



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Renewable Energy Source Technologies Many renewable energy technologies are well developed and are currently used to produce both electricity and liquid fuels. Other promising renewable technologies are under development but are either not yet technically or economically viable. Electric power can be generated directly using solar photovoltaic, solar thermal electric, wind, ocean, geothermal, and hydropower technologies. Liquid fuels include ethanol and methanol from biomass digestification. Gaseous fuels include methane from biomass gasification or anaerobic digestion of biomass, and hydrogen from electrolysis of water or from biomass gasification. Hydrogen, methane, and alcohols can be used in a fuel cell to create electricity directly, or may be burned in a jet turbine to generate electricity. Biomass can be burned directly to produce heat, but advanced gasification is more efficient. The use of energy efficient processes and technologies, including cogeneration, is also a key component of a sustainable energy future.

Economics Renewable technologies such as wind, hydropower, photovoltaics, and biomass are cost-competitive with fossil fuels on today’s market in certain locations ( Johansson, 1993). However, market saturation remains low because the economic incentive is not great enough to cause a switch to renewables, or because the renewable is only competitive in a niche market, such as photovoltaics which are cost-effective in remote, off-grid applications. Other renewable technologies would be cost-competitive if fossil fuel prices were higher. Additional technologies need to be developed and demonstrated, but have not been, due to the minimal levels of funding for research and development that renewables currently receive relative to the conventional energy sector. As previously mentioned, considerable subsidies to the fossil fuel and nuclear industries bias the market against investment in renewables ( Johansson, 1993). These market distortions include direct subsidies for kerosene and diesel fuels, tax benefits for coal, oil, and gas production, public financing for nuclear plant construction and nuclear waste management, regulatory policies that permit a utility to receive a return on investment for a plant still under construction, and agricultural policies that discourage crop diversification to energy crops ( Johansson). In addition, there are significant environmental externalities, such as lost environmental services and high cleanup and remediation costs, associated with the use of fossil and nuclear fuels that are not accounted for in their price on the world market. If these market distortions were removed, or if renewables were


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subsidized and favored to an equal extent, many renewable energy sources would become much more cost-competitive; either immediately, or in time with additional research and development. Benefits Given adequate support, renewable energy technologies can meet much of the growing demand for energy at prices lower than those usually forecast for renewable energy ( Johansson, 1993). If this were true, global economic efficiency would increase. There are many additional benefits that are not captured by standard national accounts. Because sustainably managed renewables are carbon-neutral, their use will aid in reducing greenhouse gas emissions. Emissions of nitrogen and sulfur oxides will be drastically reduced at no cost, as abatement technology will no longer be required. National security will be enhanced through fuel security and diversification of energy resources. Extensive use of renewables will reduce the need for nuclear energy and its associated risks of spillage, terrorism, and nuclear proliferation. The use of renewables will spur innovation in renewable energy technologies. Further, as Johansson and others describe in Renewable Energy Sources for Fuels and Electricity, growing biomass as an energy crop can have the dual benefits of providing agricultural jobs in rural areas of developing countries, and land restoration in the special case that the crops are grown and sustainably managed on lands rendered nearly useless by previous agricultural or forestry practices ( Johansson, 1993). Constraints of Renewables The first constraint on renewable energy is geographical. As with fossil fuels, renewable resource endowments are varied across regions and between nations. Solar and wind intensity and reliability vary with region and time of year, rainfall varies with climate, some areas have higher soil quality and fewer pests than others. Storage is the second constraint on renewables, especially for intermittent types. Without large storage capacities, intermittent renewables cannot be counted on for base load power. Given these two constraints, diversification of energy sources is necessary to maintain a steady flow of energy. Even with high use of renewables, many renewable energy scenarios count on fossil fuels, particularly natural gas, to play an important role in the energy portfolio, even as they are supplanted. Advanced gasification of coal is also likely to be an important source of energy during the transition phase to a fully renewable energy economy.



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The third constraint is biophysical. While many renewable energy schemes look good on paper, there are often indirect energy requirements that are not accounted for. For instance, a biomass plantation may appear to give a net energy return, but when the energy embodied in the fertilizers is considered, the steel which forms the trucks and machinery used for harvesting, and the steel, concrete, and other construction materials that make up the conversion plant, storage and transmission facilities, the net energy balance may well be negative. Currently such an operation may be subsidized by fossil fuels, but for sustainability a rigorous energy analysis must be undertaken to ensure a positive and economic energy return on the total portfolio of renewable technology investments under consideration. The fourth constraint relates to capital requirements. If renewable energy is to be implemented on a wide scale, a whole new infrastructure will be required. In addition to the physical plants, capital is required to deal with decentralized source networks, intermittent power generation, and the storage and transport of hydrogen, to name a few. The flip side of this coin is that nuclear and advanced fossil fuel plants are highly capital intensive. Given the proper support and incentives, developing countries that have not yet constructed extensive conventional fuel production and distribution systems could move directly to renewable sources, and save the inevitable cost of switching fuel at a later date. For example, use of decentralized solar, wind, and biomass gasification electric power plants on the local scale can eliminate the need to construct large-scale transmission grids. Pilot projects funded by international organizations such as the World Bank and the lEA can help demonstrate the economic feasibility of such decentralized systems.

The Need for International Cooperation Why lnternational Cooperation? A concerted international effort is required if renewables are to play a major role in eliminating the problems of global climate change, transboundary acid pollution, and to foster energy security and sustainable development on a global scale. Research and diffusion of renewable energy sources is minimal compared to the scale required to run an industrial world. This is largely because of the current high price of renewables relative to fossil fuels. It also stems from a lack of macropolicy coordination within and between countries. As mentioned above, fossil fuels are underpriced through subsidization and noninternalization of external environmental costs.


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There are six major reasons why nations should cooperate to promote global adoption of renewable energy sources. First, correcting market failures unilaterally by removing subsidies and internalizing externalities will not affect the world price of energy. It will not promote renewables on the global basis necessary to ameliorate the global environmental problems. Second, individual nations have a disincentive to pursue renewables unilaterally on a large scale, because their relatively high initial energy prices will put them at a competitive disadvantage on the global market. This creates a Prisoner’s Dilemma dynamic (Common, 1995), in which all countries could benefit in the long run through the adoption of renewable energy, but no nation will step forward to do so unilaterally because it will be put at an economic disadvantage, at least in the short run, while the other nations will free-ride on the environmental benefits of the pioneer nation’s action. Third, developing countries lack adequate capital and technology to implement renewables on a large scale. As previously mentioned, if the major developing countries rely on fossil fuels, global carbon emission will at least triple in the next 100 years. For this reason, developed countries will benefit from providing technical and capital assistance for renewable energy technology in developing countries. Fourth, because switching to renewables will affect the balance of trade in energy, it will affect the political economy of nations. While one nation may be able to reduce its nonrenewable energy use through promotion of renewables, it may decide not to do so for fear of retaliation by its trading partners. Fifth, world oil prices may be manipulated to undercut renewable energy ( Johansson, 1993). Global cooperation and monitoring is required to prohibit this type of collusion. Finally, as the Convention on Climate Change recognizes, it will take a reduction of carbon emissions by all major emitting nations to bring about a reduction in atmospheric carbon. For the use of renewables to contribute to this improvement, all nations must agree to cooperate. If this cooperation is achieved, economies of scale through knowledge and technology sharing can help make the transition to renewables quicker and more efficient. Because the industrial nations are by far the largest users of fossil fuels, their cooperation and leadership will be essential to any renewables-intensive scenario. What Individual Nations Can Do There are a number of actions that a nation can take to promote renewable energy domestically. The first is to establish national policies that make renewable energy a clear priority. The government can specify indicators against which



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progress toward lower emissions and increased energy security can be gauged. These indicators could include air quality indices, water and soil acidity, net CO2 emissions, trends in fossil fuel import fractions, and plutonium and radioactive waste stocks and flows. The second action is to correct market failures. The government can identify and remove tariff and nontariff barriers that are impeding the entry of renewable technologies into their countries. For example, in the 1980s, Kenyan import duties on renewable components inhibited diffusion of renewable technologies to programs that had been set up to employ them. Tariffs on photovoltaic (PV) components and solar-powered water pumps were 45 percent in 1984, plus an additional 17 percent tax. Tariffs on windmills were 30 percent of the first cost, plus an additional 17 percent tax (Dewees, 1984). Also, governments can identify and remove direct and indirect subsidies to fossil and nuclear fuels. If this is not politically or economically feasible, equivalent subsidies for renewable energy technology can be introduced to level the playing field. Tariff reduction can be coordinated within regional economic zones and free-trade areas. The third action is to promote utility involvement with renewables. Utility deregulation will allow smallscale renewable producers to become competitive. Tax incentives can be offered to major utilities to incorporate small, local, intermittent renewable sources into the power grid. Utility demand-side management can be promoted through education and assistance with cost-benefit analysis. Load shaping strategies can be used to account for daily variability of solar and windbased renewables. The fourth action is to promote economies of scale in learning and innovation by creating cross-sectoral linkages between government research institutes, industry, NGOs, and renewable users by sponsoring forums, conferences, and joint research projects on renewable technology. Additionally, the government could provide funding for the education of environmental scientists and cross-disciplinary renewable energy specialists. This action is directly amenable to international cooperation, through the sponsorship of international renewable energy conferences and joint projects. The fifth action is to increase government funding for domestic research and development and demonstration projects, data gathering, and assessment tool creation, as well as providing international development assistance for renewables in other countries. The government can provide subsidies for renewables in air quality nonattainment areas, and can create markets for renewable technology by requiring the government sector to use a specified percentage of renewables. The sixth type of action is cross-sectoral coordination, such as linking biomass projects with agricultural programs, and energyefficient technology development


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with utility DSM programs. Multisectoral coordination can take place in terms of urban and regional planning, locating industry near renewable energy sites, and developing infrastructure such as mass transit with the type of renewable fuel that is to be made available in that region. Areas for International Cooperation While there are a number of things that individual nations can do, international cooperation is needed to bring about a substantial shift to renewables. While some actions could be undertaken by a small group of nations, a global treaty on renewable energy should address five areas. First, nations must work to reduce and eliminate the global market failures. As a start, OECD nations, under the auspices of the IEA, can coordinate energy and agricultural policies in order to remove the subsidies and incentives that create a bias toward fossil fuels on the world market. IEA joint research projects can try to determine the shadow price of pollution and climate change externalities, and thus set an appropriate carbon or environmental tax on nonrenewable fuels or their use. However, even with market biases removed, the economic incentive to shift to renewables may not be great, and will require further cooperation. Second, developing countries need to become involved with renewable energy sources, possibly through joint projects with OECD nations. Additionally, aid needs to be directed to the developing countries that cannot on their own implement renewables on a wide scale. Nations can provide aid directly, or through a new agreement, or through the World Bank and the GEF. This aid can be in the form of loans for renewable energy technology, technology sharing or transfer, technical assistance, and education and capacity building. Member nations can press the World Bank to focus more attention on incorporating renewable energy into their energy option portfolio. Further, private banks and lending agencies can generate positive return on energy infrastructure loans to developing countries. Third, nations must deal with issues that will arise regarding the production and trade of renewable energy technology, as well as possible shifts in economic and political power due to changing energy resource patterns. Currently the GATT and the WTO have primacy over all trade policy, including policy that addresses the linkage between trade and the environment. As the GATT was devised before environmental issues came to prominence, the environmental policy decisions of the WTO will tend to favor free trade and economic efficiency at the expense of the environment (Kenen, 1994). The problem is that GATT does not have the expertise to take all the facets of global environmental issues related to energy use into account, including scientific uncertainty about ecosystem functioning and the risks from ecosystem



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disruption, nonlinear response due to environmental thresholds, irreversible harm, and the ethical concerns of sustainable development and the rights of future generations to an equitable environmental endowment. A renewable energy treaty regime with the appropriate mandate could serve as a counterbalance both to the WTO and to the World Bank. These three actors could negotiate solutions where environment, trade, and development interests intersect. There is precedent that requires GATT to take into account legal framework decisions made by other international organizations. For example, GATT Article XV mandates that the GATT accept the findings of the IMP. This absolves GATT from any trade liability resulting from IMP decisions (Kenen, 1994). The practical implication of this is that the GATT cannot be used to block progress toward IMP goals. The adoption of an Article to respect the findings of a renewable energy treaty regime could reduce GATT liability vis-à-vis decisions about renewable energy undertaken by that regime. Further, GATT could possibly be used to provide sanctions against price collusion and trade retaliation for reduced fossil and nuclear imports. Nations can use GATT rules to promote the objective of accelerated diffusion of renewable energy, or can work to modify GATT so that it cannot be used to block progress toward this goal. Fourth, nations can develop joint research institutes, drawing together scientists and policy makers from developed and developing countries to facilitate the transfer of knowledge and technology through joint research which focuses on practical problems. A specific proposal for “Centers of Excellence in New and Renewable Energy Sources” was outlined in the UN-sponsored Castel Gondolfo Colloquium in 1988 ( Johansson, 1993). Such a center could be modeled on the International Rice Research Institute in the Philippines. These centers would need reliable, long-term funding to be effective. Funding could be generated from a small share, perhaps 0.5 percent of the energy research and development budget of each IEA member, as well as through private sponsorship and donations. Fifth, nations can cooperate to create stable markets for renewable energy by making specific commitments on phase-in amounts and time scales. This will reduce uncertainty for private investors and energy sector industries. It will therefore facilitate the move to a new set of technologies. International funding of demonstration projects will also help to remove market uncertainty. Actors and Interests Before considering any treaty, it is necessary to identify the major actors and interests at stake in the negotiation. In the case of a treaty on renewable energy, the leading proponents will be the ones that have clear and strong vested interests in promoting renewables. Environmental NGOs are likely to be lead proponents from


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both an ideological and pragmatic basis. Nations who stand to incur significant economic or environmental damage from fossil fuel in their own or adjacent countries (for example, small island nations that stand to be wiped out by sea level rise due to global climate change) will be lead proponents. Nations who depend heavily on foreign energy, such as Japan, and who are concerned about its continued availability at reasonable prices, will be lead proponents due to energy security concerns. A treaty on renewable energy will be supported by those who stand to gain from its implementation. Nations that have strong renewable technology industries will support the treaty for economic reasons. Industries that own and develop renewable technologies, including petroleum companies such as ARCO, which was very active in developing solar thermal technology in the 1980s ( Johansson, 1993), will lobby their governments to support the initiative, again for economic reasons. Industries that would expand with an increase in renewable use, such as agriculture and the U.S. methanol industry will lobby for the treaty for economic reasons. Rural citizens in developing countries may support decentralized renewable energy because it will give them energy accessibility they would not otherwise have, or because the decentralization of energy will break state and elite monopolies and empower the poorer classes to be energy-independent. Development-oriented NGOs will support the treaty in order to promote indigenous empowerment through self-sufficiency, job creation, and improved living standards. Finally, developed country citizens who are forward thinking and environmentally oriented will lobby their governments to support the treaty. A treaty on renewable energy will be opposed by those who believe they will incur significant losses of economic power, political power, and/or national pride. Developing nations such as China and India may feel that it is their birthright to burn the fossil fuels they are endowed with, and may view the treaty as a sign of Western imperialism and an attempt to meddle in their internal affairs. OPEC nations who have significant petroleum reserves such as Saudi Arabia, Iraq, and Kuwait, will oppose the treaty because they stand to lose vast sums of money and political influence should petroleum be rapidly phased out. Fossil fuel MNCs, as well as state and elite energy monopolies who have no renewable options on the board, and their associated industry lobbies, will oppose the treaty for economic and political reasons. Citizens with an ideology of free trade and minimal state intervention, such as Ronald Reagan and Margaret Thatcher, would oppose the treaty on ideological grounds. Given the arguments for reducing present and future environmental impacts of energy use, for finding suitable substitutes for fossil and nuclear fuels before they are depleted to the level that world economic growth and development are impeded, and for retaining international cooperation in doing so, it is prudent to



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consider a global treaty on renewable energy. At a minimum, a new treaty such as this one will create its own secretariat to carry out the provisions of the treaty.

Structuring the Treaty Negotiation In his book Environmental Diplomacy, Lawrence Susskind (1994) points out the flaws of the traditional convention protocol approach to treaty making, especially in regard to environmental issues. The treaty process is slow at best, has resulted in little action on the ground except in a few specific cases; leads to encrusted bargaining positions and watered down, lowest-common-denominator agreements; and does not fully utilize the resources of industry interests and environmental NGOs. In response to this, an innovative approach to treaty making, called the Salzburg Initiative, has been developed (Susskind, 1994). This section focuses on addressing the issues associated with implementing a global renewable energy treaty, and applies specific points of the Salzburg Initiative, such as participation of nonstate actors, issue linkage, coalition building, differentiated treatment, and contingent agreements to the treaty-making process where appropriate. Possible Elements of a Global Treaty on Renewable Energy Possible elements of a global treaty on renewable energy include 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

Coordination of national energy policies Formation of joint institutes for research and education Funding of joint demonstration projects Protocols for participation in activities implemented jointly Technology sharing and technical assistance Grants and loans for renewable energy projects Provision of incentives for Foreign Direct Investment (FDI) Creation of environmental monitoring and enforcement protocols Reduction of investment risk by providing assured markets for technologies, creating a forum for further treaty negotiation Provision of protocol for the input and participation of nonstate actors Identification of opportunities for issue linkage, encouraging formulation of regional or special interest coalitions for prenegotiation collaboration Provision of differential treatment for underdeveloped or resource-poor nations Providing targets and timetables that are contingent on future events and the state of uncertainty at specified protocol review times Mandates to avoid the formation of new, permanent international institutions


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Addressing Market Failure and Environmental Externalities Nations would be required to make an inventory of all direct and indirect subsidies, tax incentives, and tariff barriers related to energy use in their countries. Market distortions related to nonrenewable energy would be phased out according to an agreed-upon timetable. Developing nations and nations with a poor resource base would be given differential treatment in the form of longer timetables for phase-out. Nations would be required to undertake economic analysis to determine shadow prices for environmental externalities. These externalities would then be internalized on a progressive schedule. Carbon and uranium taxes would be possible methods of internalization. Because determination of shadow prices is empirically difficult, regional economic research centers would be formed in order to gain economies of scale in harmonizing research techniques. Research would be undertaken to estimate the impact of adopting natural capital accounting methods. After five years the secretariat would convene the conference of the parties to decide whether to adopt natural capital accounting methods. Trade Issues As discussed in the previous section, it is important that the objectives of free trade not derail the treaty effort to promote the use of renewable energy. The treaty would create an organization strong enough to counterbalance the WTO. A new international organization for renewable energy could accomplish this if it was incorporated in the GATT articles. If the treaty results in a temporary organization, the signatories would need to pressure GATT to recognize the provisions of the treaty, much as IMF policy is recognized by GATT. In order to avoid fossil fuel price fixing to undercut renewables, and to avoid trade retaliation against a trade partner who wants to scale back its nonrenewable purchases, the treaty would ban such actions, and would create a watchdog organization that reports such transgressions to GATT. Participation of Nonstate Actors Industry and business interests, NGOs, and the scientific community have large roles to play in the prenegotiation, negotiation, and implementation of this treaty. Industry and business participation is essential to the negotiation of the renewable energy treaty. The treaty would provide a number of seats at the negotiating table for industry representatives. Voting on treaty issues would be limited to member nations. National cooperation will require the backing of key industry lobbies, at least the energy, utility, and automobile and transportation sectors. Private industry has much to offer in the way of technical expertise, renewable



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technology, research and development capacity, and capital mobilization through FDI. The fossil fuel industry has extensive knowledge in the areas of chemical processing of fuels, fuel transport and storage, and marketing. However, due to economic constraints, private industry cannot give technology or technical assistance away for free. A treaty on renewable energy must include ways to create strong and concrete incentives for industry participation in the transition to a renewable energy economy. Industry participation in the treaty-making process is essential in understanding what types of incentives will lead to full industry participation. Finding linkages between industry interests, such as reducing environmental litigation and treaty goals such as reduced environmental impact can help keep industry from blocking of treaty goals. The treaty can reduce risk by creating a certain regulatory environment for business, and can increase competition by leveling the economic and regulatory playing field between countries. Finally, the treaty secretariat can emphasis the market potential of the environmental sector. The UNDP estimates that by 2000 about $500 billion a year will be spent to comply with environmental regulations. It also predicts that much of the $1000 billion needed by 2000 for energy projects in developing and former communist countries will be spent on renewable energy supplies (FT, 1997). NGOs can provide a fresh and necessary critical perspective on treaty making and implementation processes. The treaty would provide a number of seats at the negotiating table for NGO representatives. Voting on treaty issues would be limited to member nations. NGOs have many skills and resources to contribute to the renewable energy regime, including issue identification and agenda setting, data gathering, scientific and economic research and energy analysis, implementation monitoring, outreach to local labor and other affected parties, assistance in decentralized implementation, joint ventures with local governments to coordinate regional policy with the needs of local people, education on renewable technology, and environmental consciousness raising. NGOs are often the only voice of local people affected by national policies. The concerns of these people must be heard if rural renewable energy projects are to be successful in the long run. NGOs should play an active role in treaty negotiation, regardless of whether they have a vote on the outcome or not. The scientific community also plays an important role in the treaty regime. The treaty would provide a number of seats at the negotiating table for scientific community representatives. Voting on treaty issues would be limited to member nations. Research on ecosystem, climate, and energy science is key in assessing the scientific uncertainties, and in finding innovative solutions to technical problems. It is necessary to separate science from policy in treaty making. Close involvement of the scientific community in the treaty-making process will assure that directed science does not derail scientific objectivity.


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Technology Sharing and Aid The treaty would encourage technology sharing by providing initial technical assistance to developing countries and by identifying industries willing to work with each country. The treaty would create centers of excellence in developing countries, patterned after the International Rice Institute in the Philippines, which would serve as research centers. The centers would disseminate information on renewable energy to local people through demonstration projects and public meetings. As previously mentioned, this could be funded by part of the energy research and development budgets of IEA as well as private funding. The treaty would specify that aid be given to developing countries lacking in the capital or resources to implement their own renewable projects. This aid would come both from mandatory contributions by members of the treaty regime, and through other sources such as the World Bank and the GEF. The treaty would create a body that would provide guidelines to the World Bank and GEF as to appropriate targets, technologies, and methods of implementation for renewable energy projects. It would stress that energy projects should be socially and environmentally sustainable, and would discourage huge projects like the Narmada Dam that displace whole communities of rural poor, and cause significant ecosystem damage. Issue Linkage Incentives for cooperation among states, NGOs, and industry in the treaty-making process and subsequent implementation are formed or strengthened through issue linkage. Linking issues often creates value for one or more parties where little or no value for cooperation existed previously. The linkage process therefore creates the incentive needed for cooperation in negotiation. Value creation through linkage of issues related to renewable energy can be accomplished in the following five ways. First, there is a clear link between the mandates for greenhouse gas reduction from the Climate Change Convention and the use of renewable energy. Renewables are an effective and efficient way to meet the terms of that convention. The treaty could be negotiated as an instrument of the upcoming 1997 Convention on Climate Change, or could be negotiated separately, then referenced by the Climate Change Agreement. In either event, the renewable energy treaty would set specific targets and timetables for renewable energy research, demonstration projects, full-scale implementation, and emission reductions and energy security improvements. Additionally, the treaty could allocate marketable carbon emission credits to nations or industries participating in renewable energy development and implementation. These credits could then be sold to nations that could not meet



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the terms of the treaty, and the revenue used to continue to promote the renewable industry. Environmental groups could buy permits on the market and destroy them if they wanted to reduce the overall amount of carbon emissions below the treaty level. Second, a strong link exists between sustainable agriculture, biomass cropping, and job creation in rural areas, especially in poor and developing countries. The renewable energy treaty would specify that development assistance for renewable energy would make the employment of the rural poor in renewable energy projects a priority. For capital-poor, labor surplus nations, labor-intensive biomass plantations would fit local needs better than a photovoltaic assembly factory. The matching of labor skills and local needs is essential to the successful implementation of the treaty. These plantations could be located on land that had been previously damaged though unsustainable agriculture or forestry practices. Specially selected plants that grow well in nutrient- and water-poor soils could be intercropped with nitrogen-fixing plant species, creating an additional link to the goal of land restoration and improvement of sustainable agriculture practices. There is a link between government backing of renewable projects and the willingness of private industry to devote capital to renewables development. Specific targets for implementation in the treaty, and clear national commitment to follow the terms of the treaty create market stability, thereby reducing risk and encouraging investment from private enterprise. There is also a link between market stability, environmental liability, and the willingness on the part of industry to accept more stringent environmental regulations. Specific targets for renewable energy implementation based on consensus would protect industry from the overly stringent environmental regulations that can occur in an uncertain regulatory environment, thus providing a reduction in environmental liability for the company. Many companies would rather have certain strict regulations than highly variable and uncertain weaker ones. A link between the renewable and nonrenewable energy industries can be formed through the creation of a share-swap system. The treaty regime would purchase a number of shares in nonrenewable energy on credit, and then use the flow of return on the shares to fund renewable energy projects. Each renewable project would need to be self-sufficient and economically efficient in order to pay off the loan at the end of its term. If loans were paid off in a timely manner, the nonrenewable sector might consider investing some of its own capital in the renewable sector. There is a link between energy-intensive industry and the potential for innovation in energy-efficient technologies. The transport sector and heavy industry such as metal refining may be significantly affected by fuel-switching. While this may seem negative at first, it will open up whole new markets in alternate fuel technology, and spur energy-efficient process and technology innovation. Advanced


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combined cycle gasification power plants are much more efficient than conventional fossil fuel plants. The end result could be a lower marginal cost of production and a more efficient allocation of resources, both for private industry and for society as a whole. Coalition Building Coalition building and prenegotiation are key components of the Salzburg Initiative. Nations can form regional coalitions to identify common interests and to work out differences in their positions before coming to the negotiating table. NGOs can work at the grassroots level to empower local people to comment on energy projects that will affect them, either directly through land and resource use, or indirectly through economic and social repercussions of the projects. NGOs and industry associations can work with local, regional, and national state governments to build coalitions based on mutual interests with regard to energy, rural development and agriculture. Participation would begin on the regional level, and then build progressively larger coalitions. Joint industry-nation-NGO positions can be worked out in prenegotiation before going to the bargaining table, leading to more efficient treaty negotiation. Differential Treatment Industrialized countries are by and large accountable for the major portion of carbon and other energy-related pollutants emitted into the environment. Furthermore, a history of colonialism and subsequent structural adjustment programs have left many developing countries resource-poor. The treaty would allow countries to be categorized according to their ability and available resources to adopt renewables on their own, and the extent of environmental damage for which they are responsible. This common but differentiated treatment would allow longer time periods for phase-in of renewables in developing countries, and would set a precedent for giving them aid to fulfill the terms of the treaty. Contingent Agreements Due to scientific uncertainties with regard to climate change and the assimilative capacity of the Earth, and economic uncertainty with regard to the cost and efficiency of renewable technologies and the size and stability of renewable markets, both the precautionary principle and the no-regrets policies should be adopted. This means that the treaty would have specific stages of implementation, with multiple alternate paths of action for each stage. The path followed at each stage would be contingent on the level of uncertainty with regard to future



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environmental and economic trends as assessed at that time. For renewable energy technologies, contingent time horizons may be on the order of 20 to 30 years, the approximate lifetime of energy industry capital and of sustainable biomass crops. Carbon taxes, which could be ratcheted progressively, may need to be reassessed on a more frequent basis. Addressing “No New Institution” Concerns Reforms to the U.N. structure, such as the creation of a new international organization focused on the environment, were not well-received at the UNCED Conference in Rio (Susskind, 1994). The global renewable energy treaty proposed herein could be implemented without requiring the formation of a new international organization, by creating an ad hoc forum to deal with international renewable energy issues. Presumably this forum would be more efficient than a permanent organization, as it would focus on results, and not waste resources in creating the bureaucracy to support and perpetuate itself. The downside of such an approach is that the forum would have little direct influence on other international organizations, such as the World Bank and GATT, whose actions can have significant environmental implications (Rich, 1994; Kenen, 1994). Additionally, the time required to make a complete transition to renewable energy is probably fairly long. In a renewables-intensive scenario of the Response Strategies Working Group of the IPCC, with accelerated adoption of renewables and energy efficiency policies, fossil and nuclear fuels would still account for 40 percent of primary electricity and 60 percent of direct fuel use in the year 2050 ( Johansson, 1993). Given the long time horizons for international cooperation, and the strong political, economic, and environmental influence of the World Bank and GATT on development and world trade policies, a bona fide new institution may be more effective in realizing the treaty goals than an ad hoc forum in the long run. In order to get around the need for a permanent organization, an agreement with GATT and the World Bank would need to be reached to ensure that treaty decisions would be accepted by these institutions.

Treaty Implementation Ultimately a global treaty on renewable energy would encompass a myriad of cross-cutting and interlinked concerns, such as global warming, local and regional environmental impacts of energy use, energy security, nuclear nonproliferation, and development issues such as employment, capacity building, and empowerment of indigenous peoples. However, it is unlikely that such an overarching and complex treaty could be negotiated in a timely manner in today’s world. Therefore


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these goals might be most effectively achieved under separate treaties or agreements, though these should be coordinated as extensively as possible. Further, they should be carried out through the appropriate existing international institutions, such as the IEA, IAEA, OECD, World Bank, IMP, WTO, UNEP, and the UNDP. A Global Treaty on Renewable Energy as proposed in this chapter would focus specifically on promoting the development and use of renewable energy technology. The treaty would create a secretariat for a temporary ad hoc forum called the International Renewable Energy Forum (IREF) to carry out the provisions of the treaty. This treaty could be negotiated as a Renewables Protocol to the Framework Convention on Climate Change, with the IREF becoming an instrument in achieving climate stabilization. The FCCC Climate Secretariat could serve as the secretariat for the IREF, and the FCCC Subsidiary Body on Science could oversee the Renewables Protocol and the IREF. Ideally the IREF would be complemented by agreements for a strong push for energy efficiency. The treaty would spell out the functions, structure, funding, and location of the IREF. Functions The IREF would work to implement all of the points enumerated in the proposed treaty structure above. Because it is an ad hoc forum, it would concentrate on setting up research institutes, demonstration projects, treaties, and agreements for aid and technology sharing quickly, and would require that these various organizations and agreements become self-sustaining fairly rapidly, for example on a timescale of five to seven years. The specific function of the IREF would be to 1. Work with the WTO to negotiate agreements to lower trade barriers to technology transfer. 2. Set up an organization to monitor fossil fuel prices to look for price collusion and trade retaliation against nations that have switched to renewable energy, and report these transgressions to the WTO. 3. Help coordinate national energy policies by gathering and disseminating national policy information. 4. Create centers of excellence for renewable energy research and development modeled on the Castel Gondolfo Colloquium. 5. Coordinate or provide directly energy-specific sustainable development assistance. 6. Serve as a forum to legitimate renewables as a practical alternative to fossil and nuclear fuels through the sponsoring of ongoing conference series. 7. Develop guidelines for the energy analysis of renewable projects. 8. Help to negotiate transboundary transmission agreements.



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9. Set performance standards for renewable energy technologies and award a certificate of effectiveness to renewable technologies or programs that are shown to be reliable, cost-effective and environmentally sustainable. This certificate would specify the expected energy ratio and payback time for the technology. Structure The IREF would be run by a treaty secretariat, to be formed by the Conference of the Parties. The principal members in the IREF would be states, NGO representatives, industry representatives, and members of the scientific community. The IREF would be a two-tier forum. For treaty-making activities, only nations would vote on decisions, with one vote per nation. Treaty negotiations housed by the forum would take into account the Salzburg Initiative, focusing on arriving at consensus solutions that would most likely be self-enforcing. For non-treaty activities, all members would have one vote each. In order to keep things manageable, NGO and industry would be limited to ten permanent seats each in the IREF. It would be up to the NGO and industry communities to decide which organizations would best represent their interests. Coalitions of similar nonstate organizations could form to elect a representative to each seat. The scientific community would be represented by scientific associations recognized globally for their excellence in energy, environmental, and economic analysis. These representatives would be chosen by the IREF membership. Six seats would be provided: two for each category listed to provide room for scientific debate. The forum would also encourage participation of qualified individuals from any sector or region affected by the treaty. This would allow input from civil society, which may exist parallel, but apart from, national boundaries. These individuals would be guests of the IREF, and would not have voting power. The lifetime of the IREF would be sufficient to set up the major research and monitoring organizations, and to house treaty negotiations to get the program under way. Because the time scale for international cooperation on a transition to renewable energy is long, any organizations, treaties, and agreements created by the IREF must be robust and self-supporting once they become established. The IREF would be subject to a sunset clause that it would disband after 20 years unless a clear and present need for continued international policy intervention above and beyond the existing IREF-initiated programs could be demonstrated. Location This forum would exist apart from the World Bank, the IMF, and the GEF. The World Bank has historically been biased toward large, conventional energy projects, and is unlikely to fund renewables which are seen as more expensive, more


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risky, and because they are often small and decentralized, harder to manage. As recently as 1992 the World Bank gave China a $2 million loan to reduce GHGs, and at the same time proposed a loan for $630 million to develop fossil fuel resources (Porter, 1996). Further, the World Bank and the IMF do not yet seem to recognize the link between structural adjustment programs and sustainable development (Porter, 1996). The GEF, while reformed in 1994 to increase participation from the South and from NGOs, is an inappropriate location for the IREF due to its lack of accountability, lack of institutional capacity, and failure to adopt innovative approaches (Rueda, 1996). The IREF could be housed in UNEP, but the U.N. environmental programs have been underfunded for years, and are not likely to adopt the innovative approaches mandated by the Global Treaty on Renewable Energy. Further research is required to determine the most effective location for the IREF. Funding Funding to establish research centers, demonstration projects, policy coordination, and forum overhead would come from the energy research and development budgets of member nations, from the IEA budget, and from contributions from industry and other private sources. Additional funding would come from carbon taxes, and possibly from uranium taxes based on the extent of a country’s use of nuclear energy. If global carbon taxes do not come out of the 1997 Climate Change Negotiations, they would be negotiated subsequently through treaties within the IREF, as would the proposed uranium taxes. Given the World Bank’s stated desire to become more environmentally conscious in its lending practices (World Bank, 1992), funds previously earmarked for energy projects under the GEF could be rerouted to the IREF. As previously discussed, additional capital for IREF projects would come through the returns of shares purchased on credit in the traditional energy sector. The requirement that these purchases be repaid would encourage project proponents to be self-sufficient and economically efficient.

Conclusions Reliance on fossil and nuclear fuels is environmentally, economically, and politically unsustainable in the long run. Current trends in carbon emissions, acid rain precursors, economic development, and population growth, as well as the lack of adequate nuclear safeguards and long-term radioactive waste storage facilities, demand that the human race shift away from fossil and nuclear fuels



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toward cleaner, safer, and more sustainable renewable energy sources. While there is much that individual nations can do, international cooperation is essential in meeting this goal. Such a shift will change trade patterns with regard to energy over time, as traditional fossil and nuclear fuels are phased out and clean fossil and renewable technologies are phased in. The energy industry and OPEC nations may be significantly affected by this shift, in terms of both economic and political power. However, if the economic and regulatory incentives are properly negotiated, these actors will be able to restructure their investment portfolio and still maintain their profits. The proposed treaty for international cooperation on the development and diffusion of renewables addresses the key issues, takes into account the main actors, and makes use of linkages for value creation to provide incentives for a workable solution. The use of the Salzburg Initiative in the treaty negotiation allows creative, nontraditional, effective, and expedient solutions to the problems created though the use of nonrenewable energy sources.

Notes 1. The energy profit ratio is the ratio of heat energy in a fuel to the total energy required to extract, process, and deliver that fuel to consumers. (Gever and others, 1991) 2. It is not the quantity of energy that is important, but the services that energy provides, such as heat, light, and motive force. The efficiency with which energy is used, and the quality of the energy in terms of useful work per heat unit are factors that determine the quantity of energy services derived from energy.


Y CHAPTER THIRTEEN

A PROPOSAL FOR AN ENVIRONMENTAL RIGHT-TO-KNOW CONVENTION Negotiating the Barriers John Harrison

he global Environmental Right-to-Know Convention (ERIK Convention) proposed in this chapter is designed to secure the greatest possible freedom of access to environmental information held by nation-states. Such information would be available to anyone, with no requirement to show why it is being requested. The proposed Convention would require contracting states to pass into domestic law a provision that would give anyone an enforceable right to seek and obtain certain specified information held by national, regional and local government bodies and other bodies having governmental functions. The Convention would allow appropriate exemptions for certain types of information where necessary in the interests of security, good government, personal privacy and for the protection of necessary economic interests. The Convention would be unusual in international law in that it would specifically require states to pass implementing provisions into domestic law that would give their citizens (and others) effective and enforceable rights, as opposed to simply creating rights and obligations between nation-states.1 Although the Convention would not in any way specify the form or content of national policy, it would allow for a more informed debate that would enhance environmental decision making. In many countries, especially those without a tradition of public participation in governmental decision making, the Convention may appear to challenge conventional norms and established interests.

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A Proposal for an Environmental Right-to-Know Convention

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The difficulties that these peculiarities would cause are likely to be so formidable that conventional approaches to treaty negotiation may be insufficient to secure widespread international consensus for the adoption of the Convention. For this reason, this chapter also proposes a new approach to the treaty negotiation process. It explains why a convention is needed; asks what a convention would have to contain to meet those needs; and discusses what barriers might prevent the convention from being implemented and how those barriers can be overcome.

Why Is a Convention Needed? Free and widespread access to environmental information improves environmental protection. When public policy is formulated, whether specifically addressing an environmental issue or addressing some other issue which nevertheless has an environmental impact, it is axiomatic that environmentally wise decisions are most likely to be made when based upon sound environmental information—information which is relevant to the environmental issue at stake, is broadly based, is drawn from a variety of disciplines and commands general scientific agreement.2 Public participation in environmental decision making is now widely recognized as an essential element in sustainable development.3 Too often, decision makers either completely overlook the environmental consideration or, if they address it at all, judge it on incomplete or inadequate information. Freedom of access to environmental information makes it more likely that the “environmental voice” is heard in the decision-making process by enhancing the quality of the public discourse.4 By raising the profile of environmental issues, by making them part of the currency of everyday life, they become active considerations never far from the mind of decision makers. Although this process may be most visible in the formulation of public policy (for example by the legislature or the executive at the national or local levels of government), similar processes can occur in the private sphere, in commercial corporations or at the level of the private citizen. When accurate information is freely available, the environmental voice is more likely to be authoritative and well informed rather than based on fear, ignorance, and suspicion. The field of environmental policy making, dealing as it so often does with long-range predictions fraught with scientific uncertainty, is particularly prone to exaggerated risk assessments and conspiracy theories. Freedom of access to environmental information also broadens and enhances a society’s capacity to monitor breaches of environmental standards. This is not simply a matter of strengthening the hand of environmental groups, although that can be crucial. Very often one branch of government does not know what another


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branch is doing and may only discover the position when an interested outsider makes an inquiry. Similarly one local government region may wish to satisfy itself that another region is not (for example) permitting cross-border pollution, or allowing its home industries a silent subsidy in the form of lax enforcement of environmental standards. In the international field, disparities between states in the access to information they allow can create inequalities in environmental protection and in the conditions of international competition. Domestic authorities may have at least theoretical power to impose regulatory measures. However, in international treaties the parties that are to submit to a set of regulatory measures must agree on them unanimously. Disparities of access to and understanding of information in such a context are likely to be significant barriers to achieving consensus for international environmental treaties (Onestini, 1994). Consensus is likely to be still more difficult to achieve if there are no norms of international law addressing informational disparities. In fact, if an actor is in breach of a regulatory requirement, information disparities are essential to evade detection and avoid being held to account (Bakkenist, 1994). When states enact legislation granting freedom of access to environmental information, they send a powerful message that citizens and environmental organizations have an important and valuable role to play in shaping local and national debates on policy and ad hoc decisions. In states with only fledgling environmental movements, or with little tradition of public participation in formulating public policy, such legislation can have an important symbolic significance. It may constitute the first official recognition that concerned individuals and environmental NGOs have legitimacy, as well as having the concrete effect of giving NGOs a practical tool to pursue their objectives. To appreciate the need for a convention, it is necessary to examine what is meant by the term “environmental information” and how such information is used by decision makers. The definition of environmental information in an ERIK Convention would be broad, including all information about the natural and human environment and about measures that might damage or improve it. Exemptions from what must be disclosed would be allowed to protect important national interests. The question of how the definition and the exemptions should be framed is dealt with in greater detail below. However, in considering how an ERIK Convention might be formulated and negotiated, it is helpful to step aside from definitions of the information, and first consider the types of information that would in practice be requested and the types of bodies which might be likely to make such requests. We can very broadly divide environmental information into that which is used for governmental decision making, and that which is used for non-governmental



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decision making. Within these categories, we can further subdivide “decision making” into policy and nonpolicy. The UNCED summit at Rio in 1992 acknowledged that in “sustainable development everyone is a user and provider of information considered in the broad sense . . . The need for information arises at all levels, from that of senior decision makers at the national level to the grass roots and individual levels.”5 The information needs of policy and nonpolicy decision makers are often virtually indistinguishable (Pearce and Freeman, 1991), but the purpose of an ERIK Convention would primarily be to improve decision making for governmental policy.6 This includes decisions made by a wide range of bodies, including nation-states, regional and local governments, government regulatory agencies, and some supranational bodies. Such decisions may take place in either the international or in the domestic arenas. At the international level, decision makers (national governments and international bodies) and those that seek to influence them (NGOs, business organizations, news media) will require information for a host of reasons. These range from preparation for multilateral environmental regulatory treaty making to simple bilateral negotiations concerning a single product or commodity. At this level, highly abstracted information may be required (for example global levels of greenhouse gas emissions or national rates of deforestation). Information will typically be required to ascertain the current state of the environment, environmental trends, and causative interpretation. Requests for information by one government from another government (or by a foreign NGO or business) are likely to be relatively few in number, partly because much information at this level of abstraction is already freely available in the international scientific community7 and partly because there will be relatively few occasions on which such information is needed. Although such requests may be few in number, they are likely to be viewed as highly important, especially by requesting nations. At the national level of decision making, information will generally only be required internally by NGOs, businesses, or by citizens. It would be less common for NGOs, businesses, citizens, or official bodies to request information of foreign governments to respond or contribute to domestic decisions. Internal requests for information, however, are likely to be highly specific; for example emission rates from a particular industrial plant; proposals for particular building, industrial or civil engineering developments; or whether national levels of toxicity comply with international standards.8 NGOs and businesses may seek the information necessary to formulate their own policies. Businesses need to know how to comply with existing regulations. Both these groups, and private citizens as well, may want to influence the policies of government or regulatory agencies.


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Pearce and Freeman (1991) have concluded that the types of information required by different decision makers are unlikely to vary widely: “At bottom everyone needs to know whether or not an environmental trend is significant, what its causes are, and what would be the costs and benefits of efficient policy measures.” Information is collected by governments and others, but only governments hold comprehensive and detailed information sufficient to meet the needs of all decision makers. A matrix of decision makers, their functions and information needs (loosely following Pearce and Freeman (1991) is set out in Figure 13.1.

International Interests of “Information-Poor” versus “Information-Rich” Nations Information knows no borders. Under an ERIK Convention, information would be released to both domestic and international inquirers. In practice it is likely that the great majority of inquiries would be generated internally, but when states contemplate the prospect of a convention and ask why an international treaty is needed, they are likely to ask themselves how transnational flows of information will affect their interests. In analyzing these interests it is convenient to divide the world into countries that are information rich and those that are information poor, depending upon how well or badly a country’s information needs are met by its information resources. Often information wealth or poverty will correlate to the economic wealth or FIGURE 13.1. DECISION MAKERS AND THEIR ENVIRONMENTAL INFORMATION NEEDS. Decision maker

Function

Level of Abstraction

International Decision-Making Arena National government/ International body NGOs, business, media

Policy maker

High

Policy influencer

High

Domestic Decision-Making Arena National, local government, regulatory bodies NGOs, business, media, citizens

Policy maker/ Regulator Policy influencer/ Policy recipients/ Compliance monitors

Low Low



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poverty of a state, but this will not necessarily be the case for all states, for example states in the process of rapid economic or political transition see Figure 13.2. Interests of Information-Poor Nations The vast bulk of information on the global state of the environment is held in the North, as is the expert capacity and technological means to handle, process, transfer, and interpret it. This holds true in all sectors, whether public, industrial, or NGO. The consequences for the South are severe: internationally, it is weakened in diplomatic and in trade negotiations; domestically, the shortage of expertise results in a draining of talent from the public sector to industry and generally impairs sound environmental management and policy making (Veiera, 1985). At the global level an important, perhaps even primary, interest of the South is to secure information from the North. Currently this happens through a range of multilateral and bilateral arrangements. GEMS, the Global Environmental Monitoring System, is the United Nations’ key activity in this field. It operates as an umbrella with several subprograms including GEMS/GRID (Global Resources Information Database), GEMS/MR and GEMS/WATER. GAW, Global Atmospheric Watch, which consists of the Background Air Pollution Monitoring Network and the Global Ozone Observing System, is a program of the World Meteorological Organization. Many bilateral arrangements also exist between nation-states and between universities, research institutes, scientific unions, and the private sector (Nishioka and Moriguchi, 1991). The problem for the South is that most of these programs insufficiently provide for the transfer of resources to allow the South to develop sufficient strength in the handling, processing, transfer, interpretation, and dissemination of information. Despite the calls for action at UNCED in 1992, and the establishment of the GEF, the South has largely failed to find the means to lever these resources from the North. The nations of the South have largely seen the sustainable development debate as an attempt by the North to use environmental arguments as a reason to restrain development by the South. This at the very point at which the South, having cast off the burdens of colonialism, is poised to challenge the North’s economic domination. Demands by the North for greater global environmental regulation have typically been met by calls from the South for compensatory measures, usually involving economic aid and technology transfers. To the extent that these are not forthcoming, the South may believe it best to walk away from the negotiations. The proposed ERIK Convention would not encounter this difficulty, as it would contain nothing that limited a state’s ability to pursue any form of


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development. On the contrary, the South would benefit by redressing the international information deficit. Access to information would give them superior bargaining power in international regulatory negotiations in the future, and help identify trends or instances of environmental damage that threaten the national interest. Interests of the Information-Rich Nations In international environmental negotiations, the rich nations are frequently exasperated at what they see as the failure of the poor nations to take environmental issues seriously. The position of the poor nations is that (1) development is a more pressing need than environmental regulation, and that such regulation will act as a brake on development, and (2) global environmental degradation has been predominantly caused by the rich nations. It is they who must bear the responsibility for addressing the consequences. These attitudes are unlikely to change through persuasion, pressure, or coercion from the rich nations (Najam, 1993). It may be more likely to change, however, if the poor nations themselves develop indigenous discourses addressing environmental issues arising out of their own experience. The experience of the rich nations, at least in part, was that such a discourse arose out of popular movements in association with academic communities and rapidly translated itself into political pressure at the local level. This in turn eventually resulted in international environmental regulation (Veiera, 1985; Mernitz, 1980). A convention ensuring freedom of access to environmental information would directly facilitate the development of indigenous environmental movements in countries where such initiatives are currently either nonexistent or in their infancy. This could occur in two ways. First, the existence of a substantive right of access to state information, particularly in countries with little experience of public participation in official policy making, would give popular movements both the legitimacy and the means to claim a place at the table in the formulation of local or national policy or other environmental decision making. By providing a right to information a state would implicitly accept that the recipient of that information has a right to make use of the information whether in lobbying a legislature, negotiating with the executive or in bringing judicial proceedings. How far such rights could in practice be exercised would, of course, depend upon the prevailing norms in individual countries and would vary widely, but it can be anticipated that the general effect would be to enhance the status of environmental NGOs in poor countries and to improve their standing vis-à-vis the



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state. More important than enhancing the legitimacy of NGOs, however, an ERIK Convention would provide fledgling environmental NGOs with the means to argue the environmental case in local and national policy decision-making processes. Equal access to environmental information would redress the traditional power imbalances inherent in one stakeholder holding superior information to another. It is likely that public participation in environmental decision making would increase, that the scale and quality of public discourse would increase and the quality of decision making would improve. In addition, under the model proposed in this chapter for the process of negotiating the ERIK Convention itself, NGOs in all participating states would have a formal role in the preparatory stages, in the international negotiations and in the subsequent monitoring and evaluation of the Convention. This formal role would be the subject of international monitoring during the convention-making process and could elevate the status of emerging NGOs in poor countries. This is explored further below. As systems of international environmental regulation become more sophisticated and comprehensive, the difficulties of monitoring compliance and compelling enforcement become more intractable. Numerous suggestions for improving compliance and enforcement have been made, but perhaps the single most effective means of identifying infractions has been the efforts of domestic NGOs in those countries where such organizations are developed and have significant resources. If the international community is serious about securing implementation of international environmental obligations it could make a significant intervention by initiating measures that support the development of the nascent environmental movements in developing countries. FIGURE 13.2. INTEREST ANALYSIS. Interests of the Information Poor • Most environmental information is held in the North • Most information hardware and software is held in the North • Most technical capacity for collecting, storing, and processing environmental information is in the North • This disadvantages the South in international environmental regulatory negotiations (and in trade negotiations) Interests of the Information Rich • Need for consensus on the global environmental threat • Need for environmental advocates in the South • Need for environmental monitoring in the South


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Freedom of Information in Current International Law Freedom of Information versus Freedom of Access to Information The term freedom of information, especially when used in the international law context, can cause confusion. In some jurisdictions, including the United States where the term appears in the title of the federal Freedom of Information Act,9 the term refers to a citizen’s right to obtain information held by the authorities that would not otherwise have been made public. In international law the term is generally used quite differently to encompass the broad spectrum of human rights associated with freedom of expression, including the right to disseminate information and the right to receive information free of state or other censorship or restriction (from a willing disseminator). This can be distinguished from the right to obtain internal information held by government and official bodies, which, following the EU terminology, can be described as freedom of access to information. There is clearly a vital relationship between the two concepts (Rea, 1994). It has even been argued that under existing international human rights—the European Convention on Human Rights—one is capable of guaranteeing a right of access to environmental information as an extension of the right to life (Weber, 1991). However, even if such a right were found to apply in theory it is likely that a court would only enforce it if the threat to life were imminent and manifest. Attempts to argue that article 10 of the European Convention on Human Rights (which guarantees the right “to receive and impart information and ideas without interference by public authority”) included a right of access to official information were rejected in the cases of Leander v. Sweden10 and Gaskin v. United Kingdom.11 This chapter argues that for practical purposes the two concepts are distinct and that a new right to freedom of access to environmental information needs to be specifically created by a new multilateral convention to that effect. Freedom of Access to Environmental Information in International Law More than half of all environmental treaties in the last quarter-century called for greater transparency, regular reporting by parties, and greater exchange of information at the international level (U.S. International Trade Commission, 1991). In those policy areas covered by treaties many states have cooperated at both the scientific and the political level to share mostly uncontroversial information (United Nations, 1995). However, until recently states have been reluctant to commit themselves to general obligations to share information. They feared that this would include information that may be damaging to their own interest.



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Such sharing was seen as a zero-sum game in which another state’s gain would be the sharing nation’s loss. Four inroads have been made into this defensive approach: two regional measures concerning Environmental Impact Assessment—an EU Directive12 and the European regional Espoo Convention;13 the European Union’s Freedom of Access to Environmental Information Directive (1991);14 and a proposal currently under negotiation for a regional convention on access to environmental information and public participation in environmental decision making.15 The last two measures contain substantive obligations analogous to those proposed in the ERIK Convention. It is notable that none of these is global in scope, each measure having only regional applications. The only two measures that have actually been implemented domestically to date are instruments of the European Union whose members share a common environmental policy aiming for convergent economic and social conditions. Draft International Covenant on Environment and Development A draft “International Covenant on Environment and Development” prepared by the Commission on Environmental Law of the IUCN—the World Conservation Union in cooperation with the International Council on Environmental Law—provides: “All persons, without being required to prove an interest, have the right to seek, receive, and disseminate information on activities or measures adversely affecting or likely to affect the environment and the right to participate in relevant decision-making processes.”16 It goes on to provide for a right to effective access to judicial and administrative proceedings in enforcing rights under the Covenant, and requires states to “facilitate the exchange of publicly available information relevant to the conservation and sustainable use of natural resources, taking into account the special needs of developing countries.”17 The draft Covenant aims to address comprehensively all fundamental issues affecting the environment and development including substantive issues such as obligations concerning the ozone layer, the global climate, water, biodiversity, and so on, as well as more procedural matters. In doing so, however, it treats information issues in a considerably narrower and more limited way than does the convention proposed in this chapter. In particular, while it seeks to establish a right to “seek, receive and disseminate” environmental information, it does not contain any explicit corresponding duty on states (or any other body) to allow access to such information, for example by releasing it upon request. The term “receive” therefore appears to be analogous to the general human right of freedom of information to seek and receive information from a willing disseminator.18 Understood in this manner, the provision adds little to existing international


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human rights law. It is a mistake to read it as incorporating a right of access to official environmental information. Freedom of Access as a Component of a Wider Project Finally, when we ask why an ERIK Convention is needed, we can view it as just one component of a wider global project to improve the quality of environmental decision making. Three elements of such a project can be proposed: • Freedom of access to environmental information • A right of public participation in major environmental decisions • A duty for public environmental decision makers to give reasons for their decisions. Freedom of access is the most fundamental of these, and a necessary precondition to giving the latter two elements full and effective force.

Substantive Obligations of a Global ERIK Convention The Reciprocal Model Most international treaties have conventionally followed a reciprocal model in which all the contracting parties mutually enter into the same substantive obligations. This chapter argues below that while reciprocal obligations would form a necessary component of the proposed convention, they are unlikely in themselves to be sufficient, and that resources for capacity-building measures in less industrialized countries will also be needed. However, for the present it is necessary to sketch out in a little more detail the nature of the reciprocal obligations that we might expect to find in an ERIK Convention. The proposed convention would contain the following reciprocal provisions: 1. States would ensure that public authorities are required to make information relating to the environment available to any natural or legal person on request. The experience of domestic freedom-of-access-to-information measures in a number of jurisdictions indicates that it is crucial that the party requesting the information need not demonstrate an interest. Bureaucrats the world over have demonstrated a consistent reluctance to release information they hold, and any hint that a person had to prove an interest would make the freedom of access a dead letter.19 2. Such information would include any available information in written, visual, aural, or database form on human health and safety, biodiversity, water, air,



3.

4.

5.

6.

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soil, fauna, flora, climate, noise, radiation, historical monuments, human conditions in the aftermath of environmental disasters, land and natural sites, and on activities or measures affecting, or likely to affect these, and on activities or measures designed to protect these, including legal and administrative measures and environmental management programs.20 The availability of information under the convention might vary from state to state and even the same information held in the same form might properly be considered available in one country and not in another country, for example, because of the relative difficulty of retrieving the information under different bureaucratic regimes. The definition of “available” should provide that states would only have to release information in the form or forms in which it is held, and would not, for example, have to collate it to suit the needs of an inquirer. Public authority would be broadly defined to include any public administration at national, regional or local level possessing information relating to the environment.21 The measure is principally addressed to the executive branches of government, including but by no means limited to all regulatory agencies, and at all bodies carrying out quasi-executive functions. Different national conceptions of which entities are properly described as public could make this provision fraught with difficulty. In some jurisdictions, for example, utilities such as water, sewage, roads, electricity, gas, postal services, and telecommunications may be privately owned by commercial corporations and yet for the purposes of an ERIK Convention should still be regarded as “public,” because they retain the essential qualities of a public service.22 Information could be refused on certain specific public policy grounds in which, for example, it affects certain confidential proceedings, international relations, national defense, commercial confidentiality, and personal data.23 The detailed list of exemptions would no doubt be a major focus of the Convention negotiations. It is on this issue that there is perhaps the greatest risk of “lowest common denominator” compromise. The procedural rights of applicants would need to be specified including such matters as time limits for supplying the information and judicial or administrative review of refusals. Analogous international instruments have included a right for public authorities to make reasonable charges for supplying the information because the administrative burden on bureaucracies and its attendant costs were seen as significant obstacles; however, actual experience shows that these fears are unfounded. The Convention should be open to international bodies such as the European Union, the IMF, and the World Bank. The Council of the European Union adopted a Code of Conduct on Transparency of Council Proceedings on October 2, 1995 that provides for limited disclosure.24 The World Bank


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introduced two measures in 1993 to enhance its public accountability through greater openness: a policy of greater freedom of access; certain internal documents and a new information center to distribute them; and an inspection panel to which the public can raise complaints about violations of the Bank’s policies.25 The IMF made modest steps towards greater openness the following year after a coalition of development groups and environmental bodies lobbied the U.S. Congress to withhold a $75 million appropriation unless the Fund increased access to its internal information.26

Insufficient Reciprocity Reciprocal obligations are appropriate if the value of the obligation traded is equal to or at least has some measure of equivalence with the obligation received. However, if the obligations are equal only in form, the fairness of the trade will be illusory. Furthermore, if the party giving the more valuable obligation would have (or already has) given it, there will be no real reciprocity—simply a unilateral gift. Many states contemplating entering into a freedom-of-access-to-information convention may find themselves in either of these two positions. A poor nation with little technical capacity to collect, hold, or process environmental information might find that it could rarely comply with requests for information. Such a nation may not have the information or it may not be “available” within the meaning of the convention, because, for example, the public authority does not have sufficient administrative capacity to identify it. A formally reciprocal obligation given by such a state may seem an unequal trade to a state giving an obligation that carries substance. Many nations already have freedom-of-information acts or similar measures and the information that would be made accessible pursuant to a convention is, at least in theory, already available, thus the obligations that they would be giving would be of little or no added value. While reciprocal obligations may be appropriate between those nations that currently do not have domestic freedom-ofaccess-to-information legislation but do have the administrative and technical resources to meet such obligations, reciprocity alone is unlikely to be sufficient to meet the interests of other nations. A further element needs to be factored into any proposed international information regime in order to square the circle. This was specifically addressed by the United Nations Conference on Environment and Development (UNCED) at Rio in 1992. Chapter 40 of Agenda 21, “Information for Decision Making,” identifies two program areas that “need to be implemented to ensure that decisions are based increasingly on sound information: (a) bridging the data gap (b) improving information availability.”



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The text notes that the “gap in the availability, quality, coherence, standardization, and accessibility of data between the developed and the developing world has been increasing, seriously impairing the capacities of countries to make informed decisions concerning environment and development.”27 Regarding the transfer of technology, it also notes that “with the rapid evolution of data-collection and information technologies it is necessary to develop guidelines and mechanisms for the rapid and continuous transfer of those technologies, particularly to developing countries, in conformity with chapter 34 (transfer of environmentally sound technology, cooperation and capacity building), and for training personnel in their utilization.”28 As far as the second program area is concerned, the text notes that existing “national and international mechanisms of information processing and exchange, and related technical assistance, should be strengthened to ensure effective and equitable availability of information generated at local, provincial, national, and international levels subject to national sovereignty and relevant intellectual property rights.”29 Chapter 40 estimated that the average total annual cost of the data-gap-bridging program would be $1,900 million, and $165 million for the information availability program, both to be secured by grants or concessional terms. The South has been spectacularly unsuccessful in securing even a fraction of these sums from the North, or even of the sums already earmarked by the North for the whole of the Agenda 21 program through the Global Environmental Facility.30 How then can the South craft a deal that will give it sufficient leverage with the donor nations of the North to bargain effectively for such resources? Clearly the South needs to identify an interest that will be valued by the North but which the South can satisfy at low cost to itself. As we have already seen, the North has an interest in seeing strong indigenous environmental movements develop in the South. The South could therefore offer to enter into the international negotiations for an ERIK Convention in a manner that would facilitate this. The substantive content of the reciprocal obligations contained in such a convention might be much the same, but the process by which the convention would be negotiated and implemented would be radically different. As Najam (1993) has said in the context of North/South environmental negotiations, a good process is one that • Is perceived by the parties to be fair, efficient, wise, and stable (Susskind and Cruikshank, 1987) • Allows for efficient packaging or linkage (Raiffa, 1982; Sebenius, 1984) • Facilitates an ongoing relationship between the parties (Fisher and Brown, 1988) • Fosters a problem-solving attitude (Pruitt and Rubin, 1986) • Leads to mutual-gains solutions (Fisher, Ury and Patton, 1991)


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Barriers to an ERIK Convention Recent experience shows that there are likely to be formidable barriers to both the principle and the detail of the proposed convention. Two previous attempts to win global consensus for the free exchange of environmental information have effectively failed, and it is instructive to examine the two cases. Transboundary EIAs The U.S. Senate Foreign Relations Committee directed work towards a convention that would have required environmental impact assessments for development proposals that would be likely to have a transboundary effect as far back as 1978. The task was initially pursued through the United Nations Environment Program (UNEP) but it proved impossible to gain consensus amongst the large number of diverse participants within UNEP31 and the attempt failed (Battle, 1995). In the meantime the European Union introduced a Directive32 having similar effect within its member states in 1985. This led to a revival of the U.S. proposal that was then pursued through the United Nations Economic Commission for Europe (with which the United States and Canada are affiliated). Given the familiarity of the EU directive to so many of the European states and the broad similarity of the draft convention to domestic EIA legislation in the United States and Canada, it proved possible to negotiate the U.N. Convention on Environmental Impact Assessment in a Transboundary Context in 1991 (the Espoo Convention).33 The negotiation was only made possible by limiting the participants to European and North American states. It is expected that sufficient states will ratify it to bring it into force by the summer of 1997.34 Although the Espoo Convention process concluded by recommending that other U.N. regional Economic Commissions should adopt similar measures, none has done so and there are currently no proposals for any similar global measure. UNCED 1992 At the United Nations Conference on the Environment and Development at Rio in 1992 the European Union, among others, sought to secure agreement for measures that would ensure a public right of access to environmental information. The attempt failed. All that appeared in Agenda 21 was a statement, in the tortured language of diplomatic compromise, that “countries will develop their own priorities in accordance with their national plans, policies and programmes: Ensuring access by the public to relevant information, facilitating the reception of public views and allowing for effective participation.”35



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The EU initiative failed for a host of reasons: it was made too late; other countries were unprepared for it; it was perceived as interference in internal domestic political decision making; it was perceived as a peculiarly western notion at odds with the values and norms of many states from the South; it was perceived as a threat to national interests with no or insignificant countervailing benefits; and Rio was simply the wrong venue—the novelty of the proposal could not be explored and developed in the negotiation maelstrom of UNCED. Lessons From these two experiences, and from the analysis of international interests that would be served by an ERIK Convention, we can identify a number of barriers to full implementation. These would include: 1. The Apparent Threat to National and Private Interests. These might include

such matters as defense and the confidentiality of certain private economic interests and personal data concerning private individuals. The EU Directive on Freedom of Access to Environmental Information36 contains an extensive list of exemptions; the Espoo Convention on EIAs simply permits the exemption of information that “would be prejudicial to industrial and commercial secrecy or national security.”37 2. The Apparent Threat to Conventional Patterns of Domestic Policy Setting and Decision Making. It is trite to remark that in many countries public partic-

ipation in state decision making is inimical to the prevailing political philosophy or at least to the prevailing political practice. Even in states where there is a tradition of public participation in decision making (often widely at variance with the western/liberal model) the notion of a public right to information held by the state may be quite alien. However, a number of states have made a rapid transition from regimes of comprehensive state secrecy to regimes of broadly defined freedom of access to information.38 3. The Lack of Administrative Capacity to Comply with Requests for Information. It must be recognized that different states hold information of radically

different types, forms, volumes, levels of sophistication, accessibility, and usefulness. Information will be collected, disseminated and used in the decision-making process—whether in international negotiations or in questions of domestic policy—in significantly different ways in different countries. This diversity poses colossal problems for any attempt to achieve consensus for a single global regulatory regime that seeks to impose the same standards upon all nations.


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It is difficult too apply a single “one size fits all” convention measure to such a diversity of domestic policy-setting and decision-making systems. In any regulatory system in which the parties that are to be regulated voluntarily submit to regulation by mutual agreement there is always a danger that the multiplicity of parties will reduce the overall impact of the measure to negligible proportions by a process of lowest-common-denominator special pleading. 4. Pressure of Time in the Negotiation Process. There are always a host of time pressures in any treaty negotiation, including domestic political demands to deliver results, the intrinsic urgency of the issue at stake and the cost of numerous overseas meetings. Yet it is often a false economy to rush negotiations, especially if the time that is allocated is not managed effectively: it is often necessary to go slow to go fast (Susskind and Cruikshank, 1987). The U.S. initiative on transboundary EIAs started in 1978 and has still not achieved a global convention. 5. The Inability of Potential Domestic Supporters of the Convention to Find a Voice. International regulatory negotiations rarely feature prominently on

domestic political agendas, although they may have profound effects on domestic policy at a later date. However, if there is domestic support or opposition for a measure such pressure can dramatically influence a state’s participation in negotiations, or decision to sign or ratify a treaty. Diplomats can therefore find themselves managing three sets of negotiations: those with other states, those with domestic opponents and those with domestic supporters (Putnam, 1994). An ERIK Convention is most likely to be secured if environmental interests are guaranteed a hearing in the domestic political process both before and during the substantive negotiations. This is crucial both to encourage a state to participate in the process at all, and also to counteract any domestic opposition (for example, from industry).

Negotiation Process Options This chapter concludes by proposing a particular process for the negotiation of an ERIK Convention. The analysis and recommendation presented here reflect a number of the concerns about conventional treaty-making processes and also are intended to address the particular policy objectives of an ERIK Convention. These objectives include: developing the South’s technical capability in environmental decision making and treaty negotiation; achieving the involvement of the optimum number of countries possible without a lowest-common-denominator weakening of the obligations; and the bolstering of emerging environmental movements.



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In the next few pages, two processes—the conventional and a more integrative approach—are developed to illustrate how the proposed integrative process might deliver significant benefits over the conventional approach to convention making. It is impossible to test one model against another in any scientific sense; the descriptions that follow should be understood as illustrations of what might realistically happen in a worst- and best-case scenario, respectively. Events might play out differently under either model. The objective is not so much to argue that particular outcomes are inevitable under one model or the other but to demonstrate the potential pitfalls of one model and the potential promise of the other. Option #1: Conventional Model The conventional process might begin with the appropriate international organization preparing a discussion document sketching out the terms of the proposed convention, or worse still the preparation of a draft treaty.39 Typically, this would occur at the behest of large, powerful nations thereby carrying the risk that the terms of reference would reflect only their narrow interests. Very likely it would be modeled on a similar international instrument, in this case the EC Directive, the only directly comparable document, or possibly a domestic Freedom of Information Act, the U.S. act being the most likely candidate. The terms of the forthcoming negotiations would thereby already risk limitation to a reciprocal model that fails to address the interests of the South. If the nations of the South come to the table they will have been outflanked from the beginning and find themselves having to fight a rearguard action to broaden the agenda to include the linkage of technology transfer and capacity building. As we have seen, this was broadly the pattern with both transboundary EIAs and with the EU’s UNCED initiative. We might expect that the secretariat would draft the initial discussion document or working draft instrument in terms that tightly prescribed states’ obligations (for example as to the nature of the information covered) but which are silent as to implementation (for example concerning the passage of the measure into domestic law). Numerous commentators have remarked on the repeated failure of environmental treaties to address issues of implementation and compliance. We can anticipate that there would be a moderately broad definition of the categories of information that states could exempt from the operative provisions, perhaps along similar lines as the EC Directive. We might also expect that when a conference is called to negotiate the proposed convention there will, in most countries, be little information in the press either about the issues or indeed even about the fact of the conference in advance of its occurrence (Barresi, 1994). Consequently there will likely have been little or


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no significant public discussion even within the state’s legislature let alone among the general public prior to the decision to attend or not attend the meeting, and thus little opportunity for public opinion to develop or be expressed. We might therefore expect that many states, discouraged by the unappealing agenda of international interference in domestic political decision making, would simply fail to attend any proposed conference and simply never take any part in the negotiation of a convention. In the case of the attempt at a global convention on Transboundary EIAs, the failure to win any consensus within UNEP meant that no discrete conference ever took place. Of the states that did attend and participate in a conference some might do so more out of the embarrassment of not attending than any real enthusiasm for the proposed measures. These states will be at the vanguard of those seeking to water down the obligations by narrowing the definition of environmental information, by broadening the categories of exempt information, by weakening the obligations on states and at all costs seeking to exclude any provisions that would secure compliance. (Only 3 out of 100 environmental treaties reviewed in one study contained coercive mechanisms for international enforcement [U.S. International Trade Commission, 1991]). Of this group of unenthusiastic states, those from the North would also be the most likely, on past performance, to resist any attempts by the South to link the proposed reciprocal obligations to technology transfer or capacity building. If such linkage were eventually conceded, these states might seek to limit it to resources already committed by the North such as funds committed to the GEF. They would in effect be clawing back what they had already given by imposing new conditions on resources already allocated. A number of states would be likely to attend in good faith but find that the promises made at the negotiating table are not treated as credible by the other actors because of the institutional structure of the state’s domestic politics or constitutional arrangements (Cowhey, 1993). Among these would probably be those states that either failed to sign the resulting convention, or, if they did sign, ultimately failed to ratify it—the fate of the Espoo Convention to date in the United States and elsewhere.40 Although the participation of NGOs in international environmental negotiation has been shown to be a positive influence and is increasingly accepted in practice provided it does not go beyond observation and constructive dialogue, their role is still limited. We can anticipate that in conventional negotiations for an ERIK Convention the participation of NGOs would not go beyond what has become the norm. As will be demonstrated, this falls short of their potential beneficial effect.



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Option #2: Integrative Model The conventional model of environmental negotiation emphasizes outcome over process. The integrative model proposed in this chapter places faith in the ability of a hard process to achieve a series of soft commitments that will deliver an ultimately better outcome. In proposing a new process for international negotiation one must confront the problem of how such a change might be brought about. Ultimately this may require individual acts of leadership, but the particular process proposed is less daunting in this respect than some. Given that the process itself stresses the importance of early public participation, one can conceive of a groundswell of opinion, possibly driven by the environmental movement, that would favor experimentation along the lines proposed. Change would therefore be grounded in a context rather than simply emerge from a vacuum. Even absent this condition, secretariats are capable of decisive leadership (Cox, 1969). Assuming that the initial innovative step is taken we might expect a series of prenegotiation planning meetings that would solely address the issue of the negotiation process. Prenegotiation is conventionally considered to include convening, that is, getting the parties to the table, agenda setting, fact finding and the drafting of protocols. Its value in assisting negotiations has been recognized by its routine incorporation into the repertoire of diplomatic activity (Fisher, 1989). The procedural prenegotiations proposed here would not only precede any substantive negotiations or even any preliminary issue-defining discussions but would also precede any substantive prenegotiations as conventionally understood. During these early discussions some states may conclude that the proposed convention does not meet their interests, because, for example, they attach greater weight to their interest in not overtaxing their bureaucracies with administrative burdens, or because they doubt that the exemptions will be sufficient to protect their national interests. When this kind of conflict of values emerges in negotiations, the impasse can sometimes be broken by appealing to higher values, which at more elevated levels of abstraction are more likely to be shared by the parties. The process should therefore define a series of objectives: 1. The optimum number of states should participate. 2. The maximum number of states that participate in the negotiation process should become full parties to the resulting Convention. 3. Whatever is agreed upon should be implemented in practice. 4. The importance of a role for NGOs in the negotiation process should be acknowledged.


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At this level of abstraction, such propositions might be thought to pose few problems. However, the consequences of the objectives are anything but straightforward and merit further examination. 1. The Number of Participating States. There is a perennial tension in inter-

national regulatory negotiations between crafting obligations that are sufficiently rigorous to effect real change and secure real protection, and not making the obligations so onerous that parties decline to submit to them. The more rigorous the obligations, the fewer will be the number of parties that ultimately adopt and implement the treaty. On the other hand, the greater the number of parties, the weaker the obligations must be. Diagramatically, this may be represented by Figure 13.3 in which the x axis indicates the rigor of a treaty’s obligations and the y axis the number of parties that adopt and implement the treaty. The optimal trade-off between rigor and numbers will depend upon the value placed upon either inclusivity or efficacy but is likely to lie somewhere between points a and b on the curve. The challenge of any treaty negotiation is to extend the optimal point out from the axes by flattening or shortening the curve. In the context of the ERIK Convention, a key means to achieve this would be in the treatment of the categories of information that are exempt from disclosure. Under the conventional model of negotiation the detailed list of exemptions would no doubt be a major focus of the treaty negotiations, and it is on this issue that there is perhaps the greatest risk of “lowest common denominator” compromise. A partial solution might be to allow regional or other clusters of nations to negotiate separate lists of exemptions. Although this would create

FIGURE 13.3. OPTIMALITY IN THE RIGOR/NUMBERS TENSION. Many Parties to Treaty

a

b

Few Least rigorous

Most rigorous

Treaty Obligations



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disparities between different states, it would be preferable to states either absenting themselves from the convention altogether or entering unilateral reservations at the time of signature. At least the process of negotiation, albeit in regional groupings rather than on a global basis, would exert a degree of collective discipline against unilateral backsliding. An alternative approach would be to seek a series of regional conventions from the outset, each only going as far as regional groups of states believe is appropriate to the regional needs and resources. However, this is less likely to be desirable from all parties’ points of view. First, it is much less likely that the South would be able to lever capacity-building resources out of the North if separate negotiations are conducted. Second, there is a risk that some regional blocs would never achieve the necessary momenturn to start the process. As we have seen at the end of the Espoo Convention process, the U.N. ECE recommended that other U.N. regional Economic Commissions should adopt similar measures, but none has taken any steps to do so. 2. The Maximum Number of Participants Should Become Full Parties to the Convention.41 The process should aim to engage participants to enhance the

likelihood that they will both sign and ratify the resulting convention. Currently, as we have seen, in many countries there is frequently little or no domestic knowledge of or support for the measures that are negotiated at international conferences. Negotiators will typically have a brief from their national leadership but this may not command support from, say, the ratifying authority such as the legislature or from opposition parties who may have come to power by the time of ratification. Possible measures to address these issues are considered below. 3. Whatever Is Agreed Upon Should Be Implemented. For the same reasons that treaties are not always signed or ratified, they are sometimes not implemented or are only implemented in part or only in form. This can also happen if the leadership, reflecting upon the full consequences of the draft convention, considers that the negotiator has gone too far in making concessions—the international equivalent of negotiator regret. The domestic implementation of treaties is largely taken on trust or simply excluded from consideration at the negotiations. A partial solution would be to make the winning of domestic consensus for the measure a part of the convention-making process (Cowhey, 1993). This could be done by agreeing that a necessary precondition of participation in the substantive negotiations would be for states to have conducted some form of public consultation prior to the meeting. This obviously bears the risk that some states, particularly those to whom the idea of public involvement in decision making is


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alien, will either not agree to such a procedural rule or decline to participate if such a rule is agreed upon by a majority. However, their concerns could be met by allowing them an absolute discretion as to how to consult, with whom they should consult and how widely they should consult. If some states choose to consult with only one body that would be a matter solely for the state concerned. The only condition would be that they present their proposals for consultation at a prenegotiation process-settling meeting. The expectation would be that most states acting either out of conviction or out of shame would consult with a reasonably wide range of NGOs. Indeed the irony would not be lost on anyone if a state were surreptitious about proposals for freedom of access to information.42 The second stage of securing implementation should be a procedural requirement that in the course of the substantive negotiations, after agreement on the nature of the obligations of states but before signature, states should present written descriptions of the measures they propose to enact to make adherence to the convention obligatory in domestic law or administration. It would be a requirement that such written descriptions were consulted upon domestically prior to presentation. Whether such domestic measures fully and genuinely implement the convention obligations and how or whether such a question should be judged are questions fraught with difficulty. One possibility might be to allow the conference to vote on the question (and thereby permit or refuse signature of the convention). However, this appears unduly cumbersome and in any event the conference as a whole would probably not have sufficient knowledge of each state’s legal and administrative systems to be able to make competent decisions. Another possibility would be to delegate the task to small committees of say, two or three states, including at least one state with a broadly similar legal and administrative system. A third possibility would perhaps create the most confidence: to include an NGO

TABLE 13.1.

Parties Process Treaty Obligations Information Disclosure Public/NGO Participation Resource Transfer

PROCESS CHARACTERISTICS. Conventional

Integrative

Few Soft Hard Reciprocal Limited Uncertain

Many Hard Soft Reciprocal Full Yes



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from a similar state on such a committee but to make the committee’s opinion of the efficacy of the domestic measure purely advisory—perhaps reserving a final right of veto to the whole conference on a qualified vote for cases of manifest failure to meet the convention objectives. Short of a veto a negative advisory opinion would not debar signature. 4. Acknowledge the Role of NGOs. NGOs as producers, consumers, and trans-

mitters of environmental information have a direct interest in the subject of an ERIK Convention. This is not to say that they are stakeholders in any sense equivalent to nation-states, but rather that, as has already been demonstrated, they could play a facilitative and complementary role in the negotiation process. This should be acknowledged and welcomed and a place should be made for them at the table. The participation of NGOs from the South, where they exist, should be particularly encouraged. It is not feasible or desirable to require states to fund the attendance of NGOs from their own country, but a modest pooled fund, administered by the NGOs to assist the attendance of Southern NGOs would be possible. Failing that, Northern NGOs might raise funds as occurred at Rio. Issue-defining Stage At the issue-defining stage a set of principles could be sketched out which would address issues of process and of substance so that 1. Disparities in information resources and capabilities should be recognized. 2. Dissimilarities in constitutional, historical, political, and cultural norms of decision making should be acknowledged. 1. Resource and Capability Disparities. Agenda 21 acknowledged the sharp and growing information inequalities between North and South and set out a program of technology transfer and capability enhancement through grants and concessions to redress the imbalance. However, in the context of an ERIK convention a significant group of states, perhaps the largest bloc, would neither seek nor expect to provide grants or other assistance. These states would be content that the reciprocal obligations given by all the other parties will meet their interests. While they may not expect to give or to receive grant aid themselves, they would wish to see the largest number of states participate in the convention and can therefore be expected to be content that some states will bring others into the fold by offering aid. The parties will therefore consist of donor reciprocators, pure reciprocators, and donee reciprocators.


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Two questions will immediately emerge between the donor and donee parties. First, will the resources be additional to resources already notionally identified but not yet allocated by donor states (for example, funds within GEF or bilateral aid budgets)? Second, to what extent, if at all, should the resources be conditional upon donee states’ performance under or compliance with the convention objectives? Both issues will to some extent depend upon the judgments made by donor and donee states about their relative interests, but we can anticipate that whatever judgments donor states make, donee states would regard a combination of no additional resources and conditionality to be a fundamental breach of faith. Even the prospect of such a proposal would mean they might never come to the table in the first place. If there is no element of conditionality, however, donor states may fear that compliance will in practice be frustrated. If there is to be at least the prospect of conditionality, it follows that the resources offered must be additional to those already committed. Susskind (1994) has identified the North-South conflict over additionality and conditionality as one of the three main obstacles to global environmental cooperation. It may well be that even if there are to be additional resources, the prospect of conditions would affront some states’ conception of their national sovereignty. And in any event, as we have seen, it is in the North’s interest to enhance the South’s ability to collect, process, and disseminate information. This interest holds good even in the absence of a commitment to freedom of access to information. It may therefore be in the interest of the North to acknowledge from the outset that not only will additional resources be on offer, but also that at least a proportion of these will be available simply for becoming a party to the convention. The remaining proportion might be allocated by donor states according to a minimal test that would require them to “have regard” to donee states’ compliance with the objectives of the convention. NGOs could be allowed a role in assessing donee states’ compliance with the convention and with domestic measures that implement the convention. 2. Dissimilarities in Norms of Decision Making. There can be few projects more

sensitive than inviting politicians to alter the nature of the political process that has put and sustained them in power. Even such a limited and relatively modest proposal as freeing environmental information is, from this perspective, fraught with difficulties. Resolving the likely conflicts that would emerge in the course of reconciling the differences in constitutional, historical, and cultural norms of decision making is the toughest nut to crack in the whole proposal for an ERIK Convention. In the conventional treaty-making process this issue is likely to prove the greatest obstacle to getting parties to the table and the likeliest cause of



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defection as representatives of fundamentally contradictory philosophies lock into a battle over which tradition is superior and should dominate the others. The complexity of the task calls for a new approach. Rather than seek to resolve the conflict directly it is proposed that the problem be tackled obliquely and from two directions. One approach might be to avoid the conflict altogether by leaving the mechanisms for freeing environmental information wholly up to the individual parties to resolve alone. However, this is not desirable, as the risk of a sham mechanism or simple inaction is too great. Instead, it may be useful to build upon the process already described. First, rely upon the ability of the public consultation process previously described to deliver written proposals that genuinely meet the objectives that are broadly defined in the convention. However, in some states, particularly those with little tradition of public participation or without developed environmental movements, this may well result in weak and ineffective proposals. Therefore, the second step is to invite states to work up a series of options for domestic implementation with other states from a similar administrative, legal, cultural, or political background. States with a common law, for example, or Roman law, Marxist law, or Islamic law tradition, might work well together in cultural clusters. The expectation would be that differences in political or legal culture would be acknowledged and addressed but that peer review would minimize backsliding by reluctant or unenthusiastic states. Of course there is a danger that some clusters will simply caucus to agree to a series of ineffective measures, in an alliance against some other party (for example the North) rather than in a series of strong mutual obligations among one another. The best guarantee against this would be to involve NGOs from culturally appropriate countries in the cultural cluster meetings to act as the environmental conscience for the group. One substantive hurdle will still remain: the principle that anyone has the right to receive information without showing an interest. Some nations will inevitably balk at the idea that the right to information should be universal, so as to include, for example, political dissidents. A number of states would likely agree to widespread dissemination of information and to a broad measure of public consultation provided the recipients and consultees could be defined by the state,43 and there would inevitably be strong pressure in any negotiations to compromise this principle. However, the principle of universality is fundamental to both the substantive value of the convention and to the implicit interest that would be acknowledged by the particular process for its negotiation outlined in this chapter. It is infinitely preferable that some nations exclude themselves from the proposed convention, regrettable as that would be, than that the whole substance of the measure be jeopardized by a false compromise.


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Challenges The three principal challenges of the approach suggested in this chapter are 1. Getting the parties to the table 2. Getting commitment to a new, radical and untested process in advance of substantive negotiations 3. Convincing political leaders that greater public participation in decision making is in their own best interest The first two issues go hand in hand: As we have seen, the commitment of states that have little tradition of public participation to the integrative process of negotiation is an essential element of the substantive package. This is what they can offer donor states in order to lever technology transfer and capacity-building resources out of the North. Nevertheless, if the trade is perceived to favor the North the proposal may fall at the first hurdle. It therefore stands the best chance of success if it emerges as a political initiative of the South. Of course, this would require a commitment of some minimal resources by at least an initial core of Southern countries to crafting and preparing a proposal that reflected their interests. NGOs, particularly from the South, have a crucial role to play in generating a groundswell of interest in the issue within their own governments. A subsidiary but nevertheless very real concern is that the process outlined in this chapter may appear overly elaborate and cumbersome. It is true that the stages that involve domestic consultation will be time-consuming, particularly if some states, and indeed their consultee NGOs, perhaps unused to the mechanics of public consultation, drag their feet and thereby delay the whole process for all the other states. A clear timetable would be necessary as would a particularly activist style by the convention’s secretariat in order to encourage states to meet deadlines. Many states both in the North and in the South are striving for greater openness and democracy. An international initiative on freedom of access to information could be a catalyst for change in many countries that are already sympathetic to the underlying philosophy. Other countries may be more resistant, and are unlikely to find the prospect of additional resources sufficient to outweigh their interests in maintaining the status quo. At the far end of the spectrum, it is inevitable that some countries will have no interest in participating. However, this would be a modest price to pay for the potential rewards: improved environmental decision making throughout the world, an enhanced status and role for environmental NGOs throughout the world, and the prospect of greater global consensus about the environmental threat.



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References Dijk, V. (1991). Decision making about the environment: The role of information. In Kraan, Dirk Jan & in’tVedl (eds.), Environmental protection: Public or private choice. Pearce & Freeman (1991). Informational requirements of policy decision makers. Proceedings: Environmental information forum (Environmental information for the twenty-first century). Wates, E. L. (1994). Practical arrangements for providing access to environmental information. In European Environmental Bureau. Access to environmental information: Implementation and experience with directive 90/313/EEC: Workshop proceedings.

Notes 1. There are, however, numerous precedents, for example the Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950 (213 UNTS) 221 (“The European Convention on Human Rights”). 2. See, for example Van Djik (1991) and Pearce and Freeman (1991). Of course, there have been numerous instances of the prevailing scientific consensus being spectacularly wrong: consider Galileo, Eppur si muove, or the case of UNCLOS which was largely negotiatied in the erroneous belief that deep seabed mineral extraction was an imminent commercial reality. 3. See Agenda 21, Chapters 8, 38, 39, and 40. 4. The proposed treaty does not specify that citizens or others should have any right of public participation in environmental decision making. 5. Agenda 21, Chapter 40, para 40.1. 6. Although the inevitable use of freedom of information measures by others (particularly businesses) can have many beneficial economic (and indeed environmental) effects. 7. However, information tends to acquire greater levels of political or commercial sensitivity the more specific it becomes. 8. The example is taken from a case in which Earthwatch (Friends of the Earth, Ireland) used the EU Directive 90/313 to demonstrate what it already knew but could not easily prove: that Eire’s benzene levels were a breach of EU Directive 85/210. This provided evidence for a formal complaint to the European Union’s Commission. See E. L. Wates (1994). 9. 5 USCS 552. 10. European Court of Human Rights, No. 9248/81, Series A 116 (1987). 11. European Court of Human Rights, No. 10454/83, Series A 60 (1989). 12. Directive 85/337 on the assessment of the effects of certain public and private projects on the environment (OJ No. L 175 5.7.85, p. 40). 13. The Espoo Convention (Convention on Environmental Impact Assessments in Transboundary Contexts [1991]), Doc. E. ECE. 1250; 30 ILM 800: it is only open to members of the U.N. Economic Commission for Europe and states with consultative status and certain regional economic integration organizations. It has been signed by the European Union, 7 European states, Canada, and the United States. As of 17 March 1997, it had been ratified by 15 states, one short of the 16 necessary to bring it into force: Armenia, Albania, Austria, Bulgaria, Croatia, Denmark, Finland, Italy, Luxembourg, the Netherlands, Norway, Moldova, Spain, Sweden, and Switzerland. The sixteenth state is expected to ratify in the summer of 1997. For current position see http:www.un.org.depts/treaty.


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14. EU Directive 90/313/. 15. See John Harrison “Europeans draft public participation treaty,” Consensus, July 1996, p. 9. Also, U.N. Economic Commission for Europe, “Draft elements for the convention on access to environmental information and public participation in environmental decision making.” April 11, 1996, CEP/AC.3/R.1. The Committee of Ministers of the Council of Europe first called on member states to adopt general freedom of access to information legislation in 1981: Rec. No. R (81) 19, in the Council of Europe DH-MM (91) 1. 16. Article 12 (3). 17. Article 12; Article 43 (2) provides: “Parties shall require that access to indigenous knowledge be subject to the prior informed consent of the concerned communities and to specific regulations recognizing their rights to, and the appropriate economic value of, such knowledge.” Article 44 (1) provides: “Parties shall disseminate environmental knowledge by providing to their public and, in particular, to indigenous peoples and local communities, information, education materials, and opportunities for environmental training and education. 18. Furthermore, the breadth of the draft covenant’s scope make its prospects of adoption remote. See, however, Hassan (1993) “The IUCN Draft International Covenant on Environment and Development: background and prospects,” in Kiss and Burhenne-Guilmin. A Law for the Environment: Essays in Honour of Wolfgang E. Burhenne. 19. The experience of many Western states has been that in the early years of domestic freedom-of-access-to-information measures, the policy was frustrated by bureaucrats. In the United States, for example, the Freedom of Information Act passed in 1966 was not implemented as planned because government officials contrived to keep secrets by delaying the release of documents; by making it expensive to copy documents; by requiring detailed descriptions of documents; by claiming censorship rights or investigative priority. Access only improved after punishment for violating the Act was threatened in the KennedyMoorhead bill in 1974. 20. This definition is a simplified composite of the EU Directive on Access to Information on the Environment, the draft elements of the proposed Convention on Access to Environmental Information and Public Participation in Environmental Decision Making and the comments of William Birtles (1991) “The European Directive on Freedom of Access to Information on the Environment” Journal of Planning and Environmental Law 1991(607). The full definition in the text of an ERIK Convention would need to be more elaborate. 21. Some states operating under federal constitutions may find the application of the convention to subfederal levels of government a barrier to adoption. There is a risk that under the ordinary principles of public international law they would enter a reservation at the time of signature so as to exempt subfederal levels of government. 22. If consensus could not be achieved in any other way the difficulty could be overcome by allowing each contracting state to arrive at its own view, but requiring them to publish a nonexhaustive list, as part of the convention negotiation process, of the domestic entities that would fall within the definition. The expectation would be that the power of shame and the fear of criticism at an international meeting, coupled with the measures to promote public participation in the negotiation process explained later in this chapter would encourage states to act reasonably. 23. By way of illustration only, the EU Directive permits (but does not require) the exemption of information where it affects • The confidentiality of the proceedings of public authorities, international relations and national defense



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• Public security • Matters which are, or have been sub judice, or under enquiry (including disciplinary enquiries), or which are the subject of preliminary investigation proceedings • Commercial and industrial confidentiality, including intellectual property, the confidentiality of personal data and/or files • Material supplied by a third party without that party being under a legal obligation to do so • Material, the disclosure of which would make it more likely that the environment to which such material is related would be damaged

24.

25.

26.

27. 28. 29. 30.

31. 32. 33. 34. 35.

These exemptions have proved to be controversial and are thought by many to be unnecessarily wide. See James Michael (1996) Freedom of Information Comes to the European Union: (1996) Public Law, 31-37 (U.K.); and see Stephen Bates (1997) “EU guards its secrets,” The Guardian, March 24, p. l0 (U.K.). See for example World Bank (1994) The World Bank Policy on Disclosure of Information; World Bank (1993) “Operations inspection function” in Objectives, Mandate and Operating Procedures for an Independent Inspection Panel; Hunter and Udall (1994) The World Bank’s New Inspection Panel:Will It Increase the Bank’s Accountability, Center for International Environmental Law, Brief No 1, Washington D.C.; Bramble (1993), “World Bank reforms: the beginnings of accountability, Newsletter of the Citizens Network for Sustainable Development, Bolinas, CA, October/November 1993; French (1995) Partnership for the Planet: An Environmental Agenda for the United Nations, World Watch Paper No 126, Washington DC. Friends of the Earth, The IMF: Why the Secrecy?, unpublished; Conference Report to Accompany HR 4426, Making Appropriations for the Foreign Operations, Export Financing and Related Programs for the Fiscal Year Ending September 1995, 103d Congress, U.S. House of Representatives, August 1, 1994. Agenda 21, para 40.2. Agenda 21, para 40.14. Agenda 2l, para 40.l9. A precedent exists for a “technology for access to state information” trade-off. The UNDP’s Sustainable Development Networks (SDN) provide modest information technology resources (computer and modem) together with expert assistance in less-developed countries as freely available resources for sustainable development. As part of package of arrangements by which UNDP makes the resources available host nations must agree to the principle of making state information available through the SDN: Chuck Lankester, Director, Sustainable Development Network, UNDP personal communication December 19, 1995. See Guidelines: http://www:undp.org/sdnp/brochure.html. See UNEP Goals and Principles of Environmental Impacts Assessments, 1987, Articles 4(g), 11 and 12. Directive 85/337, (OJ No L 175 5.7.85, p. 40). (1991) Doc. E.ECE. 1250; 30 ILM 800. Personal communication, Joe Montgomery, U.S. Environmental Protection Agency, March 8th, 1996; compare footnote 13. Chapter 8.3 (C) also provides that “recognizing that countries will develop their own priorities in accordance with their prevailing conditions, needs, national plans, policies, and programmes, the following objectives are proposed: . . . To develop or improve mechanisms to facilitate the involvement of concerned individuals, groups and organizations in decision-making at all levels.”


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36. Article 3(2), see footnote 23. 37. Article 2(8). 38. William A. Tilleman (1995) cites examples of international EIA procedures in Brazil, Mexico, Australia, the Philippines, Malaya, Hong Kong and Sri Lanka in “Public participation in the environmental impact assessment process: a comparative study of impact assessment in Canada, the United States and the European Community,” 33 Colum I Transnat’l L. 337 at 418420. See also footnote 19. 39. The Espoo Convention process started with a draft convention being prepared by an independent consultant with no prior policy direction from the main parties. The draft was modeled on the EU Directive, a process the United States found unsatisfactory. 40. It appears that a combination of factors has hampered U.S. ratification: (a) changes in the domestic political climate that make ratification by executive order, rather than by Congressional legislation, unpalatable, (b) the realization that in the absence of legislative ratification a massive reservation would have to be entered so as to exempt all but federal EIAs, (c) the prospect of a domestic review of Impacts Abroad of Federal Actions (Executive Order 112114), and (d) a shift of focus to NAFTA procedures under the North American Agreement on the Environment (Article 10(7)). 41. Krasner (1985) has warned of the dangers of universal multilateral treaty regimes, except where shared interests can be clearly identified. The challenge of an ERIK Convention would be to identify those shared interests. 42. This was, however, precisely the charge leveled at government ministers at the Sofia European Environment Conference in 1995: “Ministers at an eastern European environmental conference on Monday called for greater public participation in ecological decisionmaking while green activists said they did not practice what they preached,” Gareth Jones, Reuters, 23 October 1995, available on LexisNexis. 43. China, for example, has published ambitious plans for the participation of women, youth, trade unions, and national minorities in questions of sustainable development and the environment including the publishing of a broad range of environmental information, but all contained within the state apparatus: China’s Agenda 21: White Paper on China’s Population, Environment and Development in the 21st Century, adopted 16th Executive Meeting of the State Council of the Peoples’ Republic of China, 25 March 1994.


Y CHAPTER FOURTEEN

The Global Nitrogen Initiative An Opportunity for Sustainable Development and Global Change James F. Perkaus

uman beings are now carrying out a large-scale geo-physical experiment of a kind that could not have happened in the past nor be reproduced in the future.” In signaling the escalating tons of carbon dioxide (CO2) emitted into the atmosphere, this oft-quoted 1957 passage of Roger Revelle and Hans Suess served to galvanize large-scale, interdisciplinary scientific collaborative work that has come to encompass global change research. Over the last decades, natural scientists have been busy modeling how the global carbon cycle works—as well as how humanity is destabilizing it and its likely consequences for climate change. At the same time, international law and politics, and the subdiscipline of international negotiation, are experiencing revolutionary changes as they attempt to develop norms and rules swiftly enough to adapt to a changing planet. At the same time, human beings are conducting yet another unprecedented experiment in destabilizing another of the biogeochemical world’s life-sustaining circuits, the global nitrogen cycle. Hunans have doubled the rate of nitrogen (N) fixation, that is, the rate at which N is put into a bioavailable condition (Ayres, Schlesinger, and Socolow, 1994). Peter Vitousek at Stanford and Pamela Matson at the University of California note (1991) that changes of N across ecosystem boundaries which separate the biosphere, atmosphere, and hydrosphere “have been altered more for nitrogen than any other element.” They also point out, “The nitrogen cycle is second only to carbon in its potential to drive global change.”

“H

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Professors Robert Ayres (INSEAD), Robert Socolow (Princeton), and William Schlesinger (Duke) observed that “it is not yet possible to assess accurately the significance for human beings of the disturbance of the global N cycle—either in absolute terms or relative to the disturbance of the global carbon cycle.” Nevertheless, disruptions of the nitrogen cycle may have consequences for biological diversity and ecosystem services as important as the disruptions of the carbon cycle (Ayres, Schlesinger, and Socolow, 1994). Vitousek chaired a recent (1997b) panel of eight experts who asserted that, while unknowns and data gaps remain, it is certain that human-driven N excess “is having serious impacts on ecosystems around the world.” Some hold that the environmental disruption caused by a planetary overload of nitrogen “is emerging as a new global concern” (Stevens, 1996). Is it premature to discuss N science and policy to a significantly greater degree? As one prominent scientist recently stated in The New York Times, “The problem is so newly appreciated . . . that attention has yet to focus on solutions.” Moreover, the empirical evidence has yet to include any particularly shocking effects (compare, the finding of the Antarctic ozone hole). Nevertheless, the appropriate time for heightened scientific and policy attention is long before such thresholds are reached. Because establishing priorities and defining the research agenda influences how problems are framed and then solved, the time to debate the merits of a N-related policy program is at hand. This chapter is a response to the emerging global concern by launching such a debate; it puts forth a proposal to initiate an informal dialogue which brings together the global change and the sustainable development communities—diverse groups that have material interests in solving the N pollution problem amicably and efficiently. In particular, this chapter (which is itself an unprecedented experiment in negotiation) asserts that the global N cycle merits a comprehensive program that contains both a scientific and a policy dimension. Here, we explore such a program, tentatively called the Global Nitrogen Initiative (GNI). The chapter has five sections. The first section makes the case (particularly to UNEP) that the GNI embodies a useful framework solution to the multifaceted problem posed by anthropogenic N perturbations. Specifically, it explores ten reasons why the N cycle deserves elevated levels of international concern and policy dialogue. The second section introduces the sustainable development and global change constituencies; it outlines the Initiative’s holistic-multimedia strategy (as well as considering likely risks and rewards). It also introduces the analysis of the Initiative’s possible structure through the concepts of anticipatory action and fall forward incrementalism.


The Global Nitrogen Initiative

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Each of the next two sections probes one of the GNI’s two major components: 1. A series of regional scientific advisory bodies each referred to as a Group of Experts on Nitrogen-related Issues (referred to below as the Experts); and 2. An informal policy body called the World Nitrogen Commission (referred to below as the Eminents). The third section examines the structure and purpose of the Experts, highlighting not only the tasks of issue identification and fact finding but also lessons to be drawn from treaty experiences, using LRTAP (that is, Europe’s acid rain treaty) as a case study. The fourth section analyzes the structure and purpose of the World Nitrogen Commission, highlighting how to promote an informal dialogue among multiple stakeholders in the proto-stages of bargaining for institutional formation. Members of the Eminents would be drawn from governments (for example, the North and the South), from international organizations (for example, the FCCC and the LRTAP Secretariats), from industry (for example, fertilizer and automotive corporations), and from nonprofit organizations (for example, the World Resources Institute and IIASA) as well as from the Expert advisory committees. The final section discusses policy prescriptions that might emerge from the GNI, including a nitrous oxide (N2O) protocol to combat climate change and ozone depletion. The conclusion offers the possibility of combining the IPCC’s global carbon cycle research and the GNI to establish an umbrella organization called the Intergovernmental Panel on Global Change.

The Case for the GNI A substantial burden of proof lies in the path of the Global Nitrogen Initiative (GNI). To overcome the initial hurdle, we need to demonstrate that there is a problem—or, more precisely, a series of problems (and realistically foreseeable possibilities) which are either currently not addressed or insufficiently addressed, and thereby warrant additional scientific and policy attention. Thus, in order to ascertain whether or not N-related issues satisfy this burden, we need to provide a forthright appraisal of how anthropogenic N interruptions are materially damaging human and environmental interests and of how they may reasonably affect these interests. This section outlines ten reasons that speak in favor of the GNI. Prior to doing so, it is useful to ask “To whom is the case being made?” The GNI has two primary audiences—one is general, the other specific. The


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general audience is a broad class of scientists and policy makers as well as members of the business and environmental communities who are either interested in global change or view the pollution problem within the larger context of sustainable economic development. The specific audience is UNEP—the organization with unparalleled authority and expertise to undertake such an endeavor. Executive Director Elisabeth Dowdeswell has articulated the organization’s mission well: “UNEP is both an architect of global agreements and a catalyst for national action on environmental issues. It must provide leadership and a forum for international agreements; it must educate and provide public information and be a resource for the development of national and regional plans, assessments and agreements.” What are the ten reasons why scientific and policy communities should consider the formation of the GNI? Even though the Introduction already touched on the initial two reasons, we will identify them more specifically. First, the scale of anthropogenic perturbations—that is, the doubling of the rate of N fixation— is unprecedented. Accounting for this interference are three principal human activities: 1. Increased production of N-based fertilizers 2. Increased planting of legume crops 3. Increased combustion of fossil fuels The estimates (measured in millions of metric tons [MMt] annually) for each class are 80, 40, and 20, respectively. Because natural fixed or bioavailable N sources are estimated at 140 MMt, the ratio which approximates the humancreated to the total annual rate of N fixation is about 1:2, which is to say, the anthropogenic and the natural rates are roughly equal. Second, not only is life (including human life) dependent on N but it is also susceptible to these anthropogenic interruptions. It is so through multiple scopes (global, regional, and local) each of which in some sense can be considered local. To avoid confusion, when referring to a particular scope, I will use the terms planetary, regional, or local. For example, agricultural fertilizers tend to cause planetary impacts (for example, climate change) as well as local impacts (for example, agricultural runoff); the scope of the nitrogen oxides (NOx) emissions tends to be regional (for example, acid rain) and local (for example, urban smog). Third, while there are no crises yet, current empirical evidence regarding multiple issues warrants varying degrees of concern. Most are related to NOx emissions from fossil fuel combustion. For example, atmospheric NOx emissions acidify habitats and deplete soils of so-called cation minerals (for example, calcium and aluminum) that plants need to grow. NOx emissions are also primarily responsible



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for two types of regional eutrophication—by land and by sea. Terrestrially, NOx emissions are fertilizing temperate forests, an effect which is, at least in the short run, beneficial to climate change as the added growth increases the capacity of forests to sequester carbon. Aquatically, N is also eutrophying estuaries and coastal areas, but the immediate consequences are far less benign. Evidence is mounting that N loading from atmospheric inputs are related to increases in the frequency and severity of toxic algal blooms or red tides, throughout Europe, Asia, and the eastern United States (Paerl, 1993). Red tides have also been linked to the deaths of more than 150 Florida manatees in 1996 (Broad, 1996). Yet another matter of concern but not crisis is N2O—a powerful greenhouse gas and ozone-depleter with an average lifetime of 125 years or so. The concern is two-fold: (1) N2O currently contributes about a quarter as much to global warming as does carbon dioxide; and (2) atmospheric concentrations continue to build up at the rate of two to three percent a decade. A significant but not sole source of N2O is the worldwide agricultural use of N fertilizers that serve as a raw material with which soil microbes generate the gas. Other contributors are manufacturing and forest burning. Lastly, but probably of most immediate danger to human health, N compounds from the consumption of both N fertilizers and fossil fuels leads to a plethora of local air and water quality problems, including low-level ozone—in both developed and developing countries. Fourth, the state of knowledge regarding the N cycle and its anthropogenic disruptions involves substantial uncertainty. Again, Vitousek and Matson (1991) maintain that “despite the importance of the nitrogen cycle and the global significance of its alteration, the cycle remains poorly understood in important ways” Such ignorance recently became manifest yet again in a Nature article (1995) which “through the ‘ubiquitous’ presence of fixed N in multiple water samples” reasoned that the estimates of human mobilization of the global N cycle must be raised by 50 percent. Fifth, established trends that are responsible for the N-related environmental harm augur additional intrusions. Granted, caution is always warranted when extrapolating from existing trends. Still, we should not expect the future to appreciably ameliorate the collective N problem. The rising human population is forecasted to reach 7.5 billion in 2015 and 9.8 billion in 2050. These additional people will more than likely increase the use of nitrogen fertilizer and fossil fuels—the two most severely destabilizing sources. In fact, Galloway and others (1994) predict that within 25 years, worldwide production of N fertilizer will grow more than 60 percent from its present level; and that around the year 2020, NOx emissions from fossil fuels will increase by more than 100 percent. Even though regulation, education, and technology (existing and future innovations) may ameliorate the environmental


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damage, some 90 percent of the population growth will occur in the developing world, an area already plagued by inadequate supplies of these preventative and remedial goods. Sixth, knowledge of the N cycle will prove especially useful to understanding the carbon cycle, as the two are inextricably related. It is known that some plant species take up N and carbon macronutrients in certain ratios. In fact, nitrogen interacts so strongly with the carbon cycle that in many ecosystems it regulates carbon flows (Vitousek and Matson, 1993). Yet, it is unknown whether the simultaneous destabilization of both cycles affects the existence or the predominance of positive and negative feedbacks. Recent research is also tying the location of the infamous missing carbon sink to the temperate and boreal forests of the Northern Hemisphere, exactly where the fixed N’s fertilizer effect is fairly well documented. IPCC modelers and policy makers have an obvious interest in this information. Seventh, reasonably foreseeable threats and their links to multilateral environmental agreements (MEAs) couple to form yet another reason to establish the GNI. An illustration involving forests, N, and climate change is useful in order to highlight the risks from reasonably foreseeable potential threats—those with a lower expected probability but a more severe environmental impact. A study which collected 30 years of data in the Northeastern United States concluded that nitric and sulfuric acid were depleting soil minerals and that the yearly rate of biomass accumulation remained at zero, where it had been since 1987 (Likens, 1996). In other words, that forest has not stored any additional carbon in some ten years. Given that IPCC estimates of carbon sequestration include the fertilizer effect, a major climate change strategy might need revision, if evidence such as the Likens research proves not to be an anomaly (which it is currently) but a forerunner. Given the known consequences (as well as the lower-probability but higherrisk effects), N perturbations affect (or threaten to affect) a host of environmental regimes, including the Framework Convention on Climate Change (FCCC), the Montreal Protocol, the Convention on Biological Diversity (CBD), and the Statement on Forest Principles (SFP). In addition to the impacts of forest changes regarding the FCCC and the WCFSD (see Reason No. 4, above), biodiversity offers another example. We know that bioavailable N compounds have slightly shifted biodiversity in directions that favor N-loving (nitrophilic) species such as the dogwood, and compromise species vulnerable to mineral leaching (for instance, snails, which need calcium to keep their eggs sufficiently hard). While these shifts are minor, a continued (or even elevated) shift in biodiversity would attract significantly greater concern amongst parties to the CBD. Eighth, we must keep in mind the nature of these habitats and organisms: they are dynamic and nonlinear. While the empirical record has not shown any



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environmental injury of an irreparable (let alone catastrophic) magnitude, forests, seas, and the systems of organisms behave more erratically with greater concentrations of compounds. Paracelsus’s famous adage seems appropriate: “The poison is the dosage.” Indeed, merely because the environment has had the capacity to absorb N perturbations thus far, it is unwise to assume its ability to repeat this feat. What are the tolerance margins of estuaries and seas? Temperate forests? Tropical forests? Ninth, a further reason for the GNI is the structural inadequacy of current regulation. Let us consider the somewhat disappointing results of acid rain legislation. The 1988 Sofia Convention (that is, the Nitrogen Oxides Protocol to Europe’s Long Range Transboundary Air Pollution Convention or LRTAP) has managed, at best, to reduce NOx levels by 10 percent in Europe, although emissions of sulfuric oxides (that is, SOx) have fallen much more significantly. Moreover, in the 1970–1994 period covered by the United States Clean Air Act, annual emissions of NOx increased 14 percent (from 20.6 million to 23.6 million tons), while SOx emissions over the same period declined by 32 percent. One reason why these and other regulations have proven disappointing—that is, environments remain more acidic than predicted—probably lies in the fact that other air-quality laws have dramatically reduced the amount of atmospheric dust in which alkaloid or base compounds serve as natural antacids, tending to neutralize the acidic SOx and NOx. Atmospheric dust is itself quite harmful to human health when inhaled and degrades visibility in addition to many other human and environmental problems. Given the simultaneous decrease of both acid and base compounds, the net effect is to stymie the environmental improvement of the acid rain legislation. Unfortunately, as nations continue to improve their air quality by reducing atmospheric dust (that is, by removing natural antacids), the effects of acid rain are likely to worsen unless SOx and NOx emissions are equally reduced. Such regulatory tightening just to stand still exposes endemic impediments of the current regulatory structure (which already exist for other N-related issues such as eutrophication), and thereby lends support for a new public policy approach to managing N pollutants. Tenth, we must keep in mind that waiting has costs too, which are often subsidized by the taxpayer or the environment, not to mention the taxpayers and environments of nations downstream or downwind. N-induced environmental harm is already imposing costs in terms of human health, economic goods (for example, property damaged by acid rain), and the environment. While these costs are often poorly quantified (or, monetized), they need to be factored into the calculus of deciding the existence and form of the GNI. In conclusion, this section emphasizes that some type of international policy enterprise—presently termed the Global Nitrogen Initiative—is needed to


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address the myriad ways in which anthropogenic perturbations to the N cycle harm people and the environment (broadly construed). It has also suggested that UNEP be engaged in this undertaking, possibly by establishing a GNI Steering Committee. (For the remainder of this chapter, it will be necessary to distinguish the GNI from the host of existing policies which in some way regulate N compounds. Consequently, hereafter the terms anticipatory action or preemptive action will be used when referring to the GNI’s science-policy endeavors.)

Structure and Participation Assuming that the case for the GNI (or, at least, some institutional form of anticipatory action) has surpassed an initial threshold and that UNEP (or some other institution) might consider looking at such a venture, it is worthwhile to inquire about the Initiative’s possible structure. Remembering that N-induced environmental harm occurs at the planetary, regional, and local levels, the first task is to define the GNI’s scope. The GNI proposal offered here encompasses a series of regional scientific bodies coupled to an informal, multi-stakeholder world policy dialogue. The regional scientific units are each called a Group of Experts on Nitrogen-related Issues (GENI or the Experts), while the single dialogue unit is called the World Nitrogen Commission (WNC or the Eminents). Before describing the scientific and the policy activities of the GNI, it is important to explore its characteristic coalition and strategy. With respect to the coalition, the GNI will require the participation of multiple interests that can be roughly categorized by their subscription to one or both of the following agendas: sustainable development and global change. Within the context of sustainable development, the Initiative offers insights and solutions in addressing known problems of how N affects acidification and eutrophication. The GNI needs to be useful to both the sustainable development and the global change factions. To make the coalition work, each constituency needs to understand the world view of the other. From the sustainable development perspective, the regime covered by the 1975 Mediterranean Action Plan (or, the MedPlan which was the first U.N. Regional Seas Program) illustrates how evolving perceptions of the pollution-environment nexus have changed the way the problem is viewed. According to Aldo Chiricop, “Regional cooperation has been influenced by changing perceptions of environmental degradation.” In the 1950s marine pollution from ships was the concern; in the 1960s the concern over pollution effects had switched to living resources



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(especially fisheries); and in the 1970s the concern had shifted to multiple sources of marine pollution introduced by many human activities (1992). By the 1980s, environmental concern had broadened to encompass the pattern of economic development in general (Chiricop, 1992). Mediterranean policy makers are well aware of the strategic need to approach environment and development interdependently. Citing the example of the Centre for Environment and Development for the Arab Region and Europe (CEDARE), Chiricop comments on the collective learning process of the MedPlan regime, “There was never any doubt about the need for interdisciplinary and intersectoral approaches. But with sustainable development as a new framework, a range of subjects, disciplines, and institutions are brought into interaction in a broader framework.” In general, former OECD official James MacNeill sees sustainable development as remedying a structural incongruence. He writes, “Our political, economic, and ecological systems have become totally interlocked in the real world. But they remain almost completely divorced in our economic and political institutions.” Such isolation is one of the greatest barriers to sustainable development (MacNeill, 1989–90). It is also one of the greatest barriers to an improved dialogue among the multiple stakeholders who might improve the quantity of environmental resources and the quality of environmental conditions. In specific, N-induced harms should be viewed in a holistic fashion through the lens of sustainable development, which affords opportunities for former adversaries to become partners in solving mutual problems, amicably and efficiently. The global change science which took shape in the 1980s has spawned “a new kind of international and interdisciplinary scientific research that allows coordinated, collaborative projects incorporating microbiologists and space scientists, botanists and paleontologists.” Global change could easily incorporate an increased attention to N-related impacts. On a broad scale, knowledge about the N cycle could assist biogeochemical modeling of, for example, regional vegetation. As described above, N compounds affect or may affect global change in numerous and varied ways. Many institutions are engaged in this diverse scientific enterprise, including UNEP, the World Meteorological Organization (WMO), and the International Geosphere Biosphere Programme (IGBP). In fact, IGBP has dissected the global change problem into six core areas: atmospheric chemistry, terrestrial ecosystems, biospheric aspects of hydrology, ocean flux, land-ocean interactions, and past climates. In addition, regional opportunities appear to be opening as well, as demonstrated by new centers like the Inter-American Institute for Global Change Research (IAI), European Network for Research in Global Change (ENRICH), and the Asia-Pacific Network (APN).


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The transformation of global change as an earth science to a more participatory discipline which actively integrates economic and social factors is well underway. A most notable illustration of this phenomenon is an institution established by the International Social Science Council—the Human Dimensions of Global Environmental Change Programme (HDP). Three questions for which HDP seeks comprehensive answers are relevant to the GNI. According to Professor Martin Parry, Chair of the HDP Steering Committee, “What are the social and economic driving forces of global environmental change? . . . [H]ow do they link with the bio-physical processes? What actions are feasible in terms of adaptation (that is, response to the effect) and mitigation (that is, response to the driver)?” To probe these topics, HDP initiated four research programs: land-use and cover change, industrial transformation and energy use, demographic and social dimensions of resource use, and attitudes and perceptions. GNI touches on at least three of these programs. In order to develop a more practical inquiry over the multidimensional causes, responses, and adaptations to global environmental change, there is a need to improve the dialogue between natural and social sciences. According to University of East Anglia Professor Timothy O’Riordan, it is necessary to establish “a more interactive science, utilizing imaginative ways of accounting for the spatial and time scale differences when seeking to calculate the impacts of global environmental change for citizens in different locations and in different social roles.” Concerns about global change may be starting to actually dovetail with increased awareness of the need to work toward sustainable development. O’Riordan (1996) continues: “Public and private sectors are looking for partnerships between scientific research and their daily activities and there is thus a real case for a more open and participatory science for global environmental change.” After chairing an HDP panel, NASA’s Dr. Jill Jigar (1996) summarized the discussion: “A particularly important point . . . was the need to involve the private sector from the planning process onwards. The theme of sustainable development was clearly seen as a linking element for the various communities interested in the human dimensions of global environmental change.” Having sketched the world views of the GNI’s coalition (that is, the sustainable development and the global change constituencies), we need to lay out the GNI’s overall strategy. The Initiative seeks to target the N cycles in their planetary, regional, and local manifestations in an approach that is awkwardly titled “multimedia holism.” This approach entails the monitoring and modeling of N sources and sinks (both anthropocentric and natural) through the three media of the atmosphere, the hydrosphere, and the soil-bearing pedosphere (that is, air, water, and land). To make the strategy more functional, however, the GNI sets up two subgroups that largely bifurcate the N2O emissions issue from the series of regional initiatives. This bifurcation is done because, while the overlap between the local



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and the planetary is not insignificant (for example, agricultural runoff ), the N2O emissions issue can readily be addressed as a protocol to existing MEAs with the obvious candidates being the FCCC or the Vienna ozone convention. (This particular topic receives further attention below.) The holistic multimedia approach carries both risks and rewards. First, being so comprehensive, the strategy may suffer from a lack of focus that in turn will make solving problems and attracting coalition partners difficult, if not impossible. In other words, by including so much, this ambitious strategy runs the risk of achieving nothing. Second, the single-minded focus-on-effects approach has proven to be the approach of choice for the simple reason of its striking success. For instance, the FCCC focuses on compounds according to a single effect: it targets not CO2 per se, but rather, all greenhouse gases. Moreover, the heightened research devoted to the carbon cycle is a consequence of the search to understand and mitigate the phenomenon of climate change. Similarly, the purview of the Vienna Convention is not isolated to CFCs but to all ozone-depleting chemicals. Attendant with these risks, the holistic multimedia approach offers considerable rewards. First, the approach corresponds to the interests of the global change community quite well. A holistic, multimedia program can be seen through the historical progression and close collaboration between the World Climate Research Program (that is, WCRP, from the 1970s) and IGBP (from the 1980s) and more recently with the fledgeling HDP (from the 1990s). University of Bern Professor Hans Oeschger (1996) asserts, “It is being realized that our only chance of coping with global change is by a holistic approach” This development continues the progression in the study of global change initiated in the 1950s. Large-scale, interdisciplinary collaboratives have been developed to comprehensively monitor and measure cycles, stocks, and flows. Third, the strategy explicitly recognizes cross-media effects. That is, sometimes a narrowly conceived solution may not actually solve but merely shift a problem into other media in which the detrimental consequences may be more or less severe. For example, the incineration of municipal garbage may ameliorate the landfill problem by shifting the effects to the atmosphere, thereby reducing one problem by creating another. Similarly, a program to substitute, for example, nuclear energy for fossil fuel might simply shift hazardous waste disposal problems from one medium to another. Even though comprehensive modeling might not be possible at present, the strategy can bring together the relevant stakeholders into an informal policy dialogue in order to look for win-win opportunities and to calculate possible trade-offs. Fourth, the holistic multimedia approach offers an enlarged range of opportunities among planetary, regional, and local interests. According to University of Chicago Professor Duncan Snidal (1996), “Global problems almost always have


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important local dimensions and the key to their solution may lie there. Conversely, there will often be compelling reasons to bring local problems to the global level for resolution. Environmental issues are likely to be addressed best through policies that combine the advantages of the different levels.” For example, the losers from regional acid rain and urban smog both benefit from a reduction of NOx emissions. Similarly, groups that are interested in the reduction of agricultural runoff or of greenhouse gases all benefit from limiting the application of N fertilizers. While the GNI’s scope is regional, it should incorporate interested stakeholders from all three levels to improve the opportunities for cooperation. At the risk of an epic understatement, creating and sustaining the GNI’s functional coalition (that is, between sustainable development and global change interests) is stretching the limits of international environmental diplomacy. Nevertheless, in an attempt to make diplomacy and negotiation more elastic, let us perform two tasks before examining the GNI in detail: (1) distinguish preemptive action from preemptive problem solving; and (2) review the fall-forward theory of negotiation incrementalism. During a crisis, the best policy is sometimes obtained by turning accepted wisdom on its head; a tense atmosphere surrounding a pressing issue leads more often to a rush to judgment than to a ripe moment. Sometimes the reverse is also true. The best time to initiate a policy endeavor is during the relative calm before a crisis arises. According to Johns Hopkins Professor William Zartman, “The process of working out environmental solutions does take on many of the characteristics associated with a policy cycle—catastrophe, research, effectiveness versus efficiency as criteria for a solution in principle, implementation in detail.” While environmental policy usually has stages, is it necessary or even desirable that catastrophe precedes research? Zartman considers preemptive problem-solving to be anomalous. In his words, “The lesson [regarding international environmental negotiation] seems pervasive: . . . it is necessary to wait for the horse to be stolen before the gate is locked. Preemptive problem solving is rare and often lacks the drive and urgency of negotiation in the wake of catastrophe.” Zartman’s reasoning is quite sensible. Paradoxically, a crisis does not resolve conflict; it creates more. Conflict is merely an incompatibility between two conditions or positions (Zartman, 1992). A crisis brings latent incompatibility into clear view. The crisis forces parties to crystallize their interests; and negotiation— the process of reconciling conflicting views in a single decision—can lead to problem-solving. However, Zartman acknowledges the utility of mutually-agreed issue identification and collaborative data gathering. In his words, “Negotiation is a matter of the parties’ separately preparing and jointly identifying a formula that defines the problem in a resolvable way . . . That process is made possible when the parties



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are prepared by thorough and often cooperative diagnosis or pre-negotiation at the outset.” He continues, “The importance of scientific study on environmental question bears most directly on. . . bringing out the degree of risks and costs in both inaction and various forms of action.” Therefore, it appears that the pervasive lesson is actually the value of mutually identified diagnostic science. In response, I hold that such efforts are best undertaken preemptively. Much more than semantics, prenegotiation sets in motion a continuously temporary process of incremental regime formation. A well-structured diagnostic stage can improve the possibility of successful conclusion of an environmental negotiation—adopting norms that solve problems. According to Zartman, the inchoate essences that mark the subject, the problem, and the solution “all indicate an ad hoc trial-and-error means of crafting a formula that is necessarily only temporary.” Thus, another lesson relevant to diagnosis and subsequent negotiation can be drawn: “The temporary formula should be so constructed that it calls for its own improvement and moves the process along . . . [so] that it ‘falls forward’ as a temporary solution that cannot last. Because the factual uncertainties surrounding N sources and effects are so significant (particularly outside of Europe and North America), a greater emphasis will be placed on the scientific body vis-à-vis the policy dimension. Nevertheless, policy makers and non-governmental interests (NGIs, a broad class which includes the entire range of nonprofit groups as well as business) have indispensable and innovative roles to play in holding the coalition together. Thus, having addressed a few initiative-wide issues on preemptive action and fall-forward incrementalism, our next task is to analyze at length the GNI’s regional scientific advisory committees.

GNI Science: The Regional “Experts” Due to its emphasis on regional transboundary pollutants, the GNI incorporates many aspects of a most successful pollution-oriented, international environmental treaty—that is, the Long Range Transboundary Air Pollution Convention which is more widely known as LRTAP. In order to put meat on the bones of the admittedly skeletal GNI, let us start with general observations that can be drawn from many environmental institutions. Then we will sketch the anatomy of one of the GNI’s regional scientific advisory bodies—that is, GENI or the Experts—by exploring how international environmental institutions, especially LRTAP, influences the Experts’ form and function. While Zartman employed a diagnosis-formulation-implementation model of the negotiation process, Porter and Brown offer a more useful framework with four stages: heuristic-issue identification, fact finding, bargaining on regime creation,


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and regime strengthening (1996). The stages are by and large sequential, although considerable overlap and feedback do occur. With respect to the GENI, the two initial stages are particularly relevant. In addition to elevating (if not introducing) a concern to the world community, issue identification involves determining the degree of the environmental threat, its primary causes, and the type of international action it requires. Moreover, the people who identify and publicize the issue often announce new scientific evidence or theories, as happened in the case of ozone depletion, acid rain and climate change. Fact finding involves the information gathering and data collection procedures from the scientific research that quantifies the scope, magnitude, causes, and remedies of environmental damage. Porter and Brown note that sometimes a mediating international organization “has brought interested parties together in an attempt to establish a baseline of facts on which there is agreement.” The role of UNEP in establishing and structuring the GNI becomes more and more apparent. How are these two stages relevant to the Experts’ tasks? In order for the UNEP Steering Committee to select certain regions which contain particularly desirable characteristics (for example, significant use of fossil fuel or N fertilizer as well as tropical savannas which are known N sources), it must engage in issue identification and fact finding. First, the UNEP and the Experts would survey what is known about N and its impacts as well as what needs to be known better. The temporary conclusion to this endeavor is to impart a vision of the goals and a short-term plan in which the process falls forward, remembering all the while that creating the support of the sustainable development and the global change constituencies is essential to bringing and to holding the coalition together. Second, the GENI would design and implement regional flow-monitoring programs which would track pertinent N-compound cycles, including identifying and quantifying transboundary N flows. As Professor Marc Levy observes about the LRTAP instance, a multilateral monitoring program referred to as EMEP proved unequivocally that SO2 could travel 1,000 km or more and that 5 of the 11 participating European countries “received more pollution from abroad than from domestic sources.” In part, some countries acquired the knowledge that acidification was harming state interests. EMEP—with its origins in a post-Stockholm OECD program (1973–1977, and subsequently in the Economic Commission for Europe)—has been instrumental to the LRTAP Convention and its protocol negotiations because it has helped resolve scientific disputes. According to Levy, “When LRTAP was created only two of its thirty members thought acid rain was a serious environmental problem. Now all do, and they are in the midst of an ambitious work plan to develop strict regulatory protocols.”



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Importantly, the scientific findings of LRTAP was unchallenged because: (1) the multilateral program was perceived as objective; and (2) the coordinated structure of the program’s design guaranteed that the results in each participating country could be compared to one another. Regarding this second point, Levy writes, “Coordination of national research programs can be considered the bedrock of all LRTAP’s activity . . . Without standardization of data collection, measurements, and analysis procedures, even those countries with an active interest in acidification would be unable to pool their results.” The message to the regional Experts is relatively straightforward. Impartial joint science is necessary for governments and regional sustainable development interests to trust the measurements of domestic and transboundary emissions and injury. It is also necessary for the global change community who need standardized information gathering and measurements for the data to be useful to its interests. Thus, the multiple GENI programs would have uniform standards on their flowmonitoring projects to ensure comparability—locally, regionally, and globally. Third, GENI would assess impacts and uncertainties as well as integrative relationships. For example, to what degree is the N fertilization (from fossil fuel combustion) that increases the carbon sequestration in temperate forests serving to counter the climate change effects of increased N2O concentrations (from agricultural N fertilizers)? While this particular relationship (most relevant to global change) is beyond the capacity of current computer modeling efforts, the LRTAP regime uses a simulation model (that is, RAINS developed by IIASA) to address a different integrative relationship. This model connects energy use, long-range pollution transport, environmental damage, and socioeconomic factors to forecast the effects of potential regulatory responses to acid rain. Indeed, RAINS is one of the few models that cover “the pathway from economic and industrial factors affecting emissions to the ecological effects resulting from emissions.” The regional Experts might do well to adapt RAINS to their specific regional conditions about acidification and to discuss other types of integrative modeling. Efforts from climate change modeling may also assist this endeavor. Fourth, the Experts would prioritize risks. For instance, which of the following three empirically verified concerns is the most severe: the impact of N2O increases on climate change and ozone depletion; the impact of N saturation on mineral leaching, tree growth, and carbon sequestration; or the impact of coastal N eutrophication (i.e., nuisance algal blooms) on marine productivity, marine mammals, and fisheries? Diplomacy is the order of the day because prioritizing involves value judgments to a greater degree than most of GENI’s other tasks, given that disagreement


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over criteria will probably emerge between and among the regional and the global constituencies. Fifth, GENI would gather and disseminate data and research, serving as a clearinghouse that consolidates and advances the growing but disparate knowledge to date. Regional reports would be sent to the panel convening the global change interests. Yet LRTAP offers another lesson in that its fact-finding actually predated issue identification. Acid rain became a political issue in 1967 and 1968 when Oden, a Swedish soil scientist, published two articles that called transboundary air pollution chemical war. Oden’s work used data from the European Air Chemistry Network, a program which had its genesis in the mid-1940s and became “the first large-scale and long-term data on the changing chemistry of precipitation and its importance for agriculture and forestry.” Norway and Sweden became quite interested, because valuable fish stocks were threatened (Levy, 1993). Oden’s research sparked concern and debate, which led to the establishment of the LRTAP regime—EMEP, the Convention itself (1979), the Sulfur Protocol (1985), the Nitrogen Protocol (1988), and negotiations on new issue areas as well as on strengthening existing ones continues in earnest. The relevance of Oden’s work to the Experts is that a relatively long-range, long-term data set was necessary to get the ear of governments. It was more than 20 years before the research started the process that made regional ecological harm a transboundary political concern. It is true that an undertaking like the European Air Chemistry Network does not need the imprimatur of international institutions. Still, such a designation facilitates similar research projects by signaling that scientific peers deem it important and by helping attract financial supporters who view the designation as a legitimating mark for scientific undertaking. Also noteworthy, LRTAP has evolved to address issues beyond acidification from SOx and NOx to include, among others, volatile organic compounds (so-called VOCs). Moreover, European researchers are growing increasingly concerned over an area directly relevant to the GNI—the “fertilization” effect from NOx emissions.

GNI Policy: The World Eminents While the coordinating challenges of the Experts’ (individually and collectively) scientific projects seem daunting enough, the policy body—the World Nitrogen Commission (WNC) or the Eminents—faces even more complex endeavors. Climate change research has produced much knowledge about how the carbon cycle works and how this building block of life regulates organisms and ecosystems. The unparalleled policy responses of climate change might be characterized as a top-down approach, in which governments in collaboration with scientists have



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been the primary engines. Yet three traits of climate change make its policy manifestations largely inappropriate models for the GNI. First, as already mentioned, climate change is focused around one single effect, dealing with all greenhouse gases. Second, because the residence times and spatial distributions of most greenhouse gases (especially the most significant one, CO2) are respectively so long and so vast, its scope is planetary. Third, the consensus among scientists appears that CO2 and climate change may cause irreversible or catastrophic damage. In contrast, the current consensus among scientists appears that, while N compounds do cause environmental deterioration, no single harm threatens irreversible or catastrophic damage. Moreover, the GNI seeks a regional multimedia approach around multiple effects (for example, climate change, habitat acidification, and low-level ozone) that actually encompass all three scopes (planetary, regional, and local). Charged with such an ambitious task that lacks the favorable aspects of the climate change issue, how can the GNI ever expect to achieve any results? An initial answer is to switch emphasis from a top-down model to a bottomup approach in order to meet in the middle. Indeed, the two unprecedented global change experiments (that is, involving the Carbon and the N cycles), both demand unprecedented responses; yet their strategies must be quite different. Governments are and (for the indefinite future) will always be essential actors. They are the players in the international system with lasting authority and legitimacy. However, a representative panoply of non-governmental interests needs to be part of the Initiative’s WNC. The WNC is loosely modeled on the format of the World Commission on Environment and Development (WCED) and of the World Commission on Forests and Sustainable Development (WCFSD). These groups assembled professionals and dignitaries from different geographical, ideological, and socioeconomic backgrounds to gain consensus on problem definition and to elevate concern accordingly. The WNC has four goals: 1. To develop a consensus on various N-related environmental problems 2. To elevate a concern for these issues among interested stakeholders 3. To search for solutions to these problems before a crisis (or, conceivably, a series of crises) surfaces 4. To the extent that a crisis arises, to serve as a forum for constructive dialogue To attain these goals, the Eminents must: 1. Expand the roles of NGIs. 2. Create options seeking mutual gains early and often. 3. Build decentralized coalitions. Recent advancements in negotiating theory impart some good advice.


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First, the Salzburg Initiative—a recommendation which emerged in 1991–92 from a multi-year initiative composed of preeminent scholars, policy makers, and representatives of NGIs affected by international environmental negotiations— articulated the need to include the expertise and opinions of NGIs. According to MIT Professor and Initiative Co-chair Lawrence Susskind, “NGIs broaden the range of views expressed during the analysis of scientific, technical and legal evidence used to diagnose the seriousness of environmental threats. They broaden the scope of the peer-review process in making sense of conflicting scientific evidence.” For example, the MedPlan—as well as other Mediterranean regional regimes—lacks input and support from the popular constituencies that benefit from it. In fact, the decision makers that MAP has been designed to include have been the regional political and bureaucratic interests, who along with professional and technical elites have been generally the only participants (Chiricop, 1992). The response for a more functional, effective regime is to include nongovernmental constituencies not in the decision making, per se, but rather in the diagnosis and policy-formulation stages. Chiricop remarks: “It is sad, but true, that 16 years after its inception MAP remains largely unknown among the coastal Mediterranean peoples. There is a need for an additional approach that also targets the Mediterranean public and visitors to the region” (1992). Second, the composition of the Eminents reflects the desire to build decentralized coalitions. As a result, the WNC would bring together major stakeholders that affect or are affected by N-induced environmental deterioration. The host of actors might potentially include representatives from five sectors: from governments, from nonprofit groups, from business and industry, from the scientific community, and from pertinent intergovernmental organizations (IGOs). Specifically, representative governments might include three pairs of interests: those from the North and the South; those that export or import fossil fuels and N fertilizers; and those that export or import pollution in the form of N2O and NOx. In addition, environmental and consumer groups from the nonprofit sector include those interested in planetary issues (for example, global warming and ozone depletion), in regional issues (for example, acidification and eutrophication), and in local issues (for example, local air and water quality). Moreover, participants from business might include those involved in energy, transportation, agriculture (small- and large-scale), fertilizer, and pollution control industries as well as the World Business Council for Sustainable Development. The scientific community might be represented by the Experts, IIASA, and HOP. And from the IOOs, four areas need or should be considered for inclusion: 1. UNEP 2. U.N. associations such as WMO and IBGP



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3. Multilateral “independents” such as IPCC and WCFSD 4. MEA secretariats such as LRTAP, FCCC, MP, and CBD Many of these veteran interests, especially LRTAP, may speed the learning curve as their institutional memories may help the GNI fall forward by identifying promising paths and, more importantly, by avoiding pitfalls. Finally, a UNEPsponsored facilitator or convener might oversee a work program. Third, attempting to serve the interests of the coalition’s members will necessitate creating options for mutual gain. Fisher and others, have performed a valuable service in identifying four major hurdles that limit the supply of options: 1. 2. 3. 4.

Premature judgment Searching for a single answer The assumption of a fixed pie Thinking that “solving their problem is their problem”

More importantly, they offer practical ways to clear the hurdles. Three are particularly poignant with creating and keeping the wieldy coalition. Initially, there must be a clear separation between inventing options and judging them. Then a determined effort must reinforce the broadening of tabled options; there are multiple answers. Lastly, it is necessary to search for mutual gains. WNC members and facilitators would be versed in this protocol. Before illustrating specific potential opportunities for cooperation, it becomes pertinent to explore the actors who will likely oppose the Initiative as well as to probe possible strategies for their defection. Although the N2O-emissions and the NOx-emissions subgroups will probably encounter different levels of interest, apathy, and hostility, it is anticipated that numerous interests, both governmental and non-governmental, will oppose both the GNI generally and its subgroups particularly. For example, because fossil fuels mean jobs and life style, we need a blunt appraisal of probable detractors. First, many governments will be skeptical (if not hostile) to the GNI, especially given that most every national economy depends on the lifeblood of fossil fuels—that is, through importing, exporting, processing, or consuming. Second, some industry and consumer interests will prefer to continue to incur environmental costs, because they are neither as concentrated nor as certain (particularly in their intermediate- and long-term consequences) as the immediate economic costs of internalizing the externalities—for example, through additional gasoline taxes or pollution control regulation. To a lesser degree in the case of N fertilizers, countries and companies who export or who import N fertilizers may


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respectively feel that their market access opportunities are being unnecessarily diminished (that is, the exporters) or that their food security prospects are being jeopardized (that is, the importers). To overcome this reluctance, the GNI needs to divide and coalesce in specific and general ways. Specifically, the GNI might invite the pollution control industries to help demonstrate that cleaner technologies are, if not strictly costeffective, not a threat to corporate revenues and profits. At the same time, alternative regulation is to institute so-called green taxes. A variation of this increasingly popular approach (Barde and Owens, 1996) is to increase taxes on pollution and other “bads” while decreasing taxes on income and other goods; such a strategy offers the possibility of cleaning the environment while remaining revenue neutral. Because green taxes directly respond to the concerns of governments and taxpayers, they may attract defectors from the likely formidable blocking coalition. In general, the GNI’s divide and coalesce strategy separates the planetary and the regional subgroups as they address largely distinct constituencies. Around each subgroup the GNI needs to build a nexus of interest groups that coalesce around the scientific information and its cost-benefit distributions which may threaten some groups or may offer opportunities for others. Regardless of the specific strategies of each subgroup, it is useful to acknowledge four common traits which may thwart blocking coalitions and may promote international cooperation. First, UNEP can play an indispensable role in providing coordinating services, advisory consultation, scientific expertise, and political legitimacy (which helps attract financial support from governments and private donors). Second, it is essential for the United States to become, if not actively engaged, at least a passive supporter of the Initiative. Porter and Brown provide a concise overview of United States power in global environmental politics: “The United States has greater diplomatic influence on other state actors and IOs than any other state. When the United States has taken the lead, as it did on the Montreal Protocol on ozone depletion, whaling, or the African elephant, the result has been a much stronger regime than would otherwise have been established. But when it has been a veto state, as in the sulfur dioxide protocol to the acid rain convention, the hazardous waste trade convention, and the climate convention, the result is a significantly weaker regime.” Third, the GNI must form coalitions through linkages between environmental and non-environmental issues. Cold War detente brought many Eastern Bloc nations under the LRTAP governance as negotiators linked acid rain to other foreign policy issues. According to Levy, “These countries were not concerned about domestic damage, but reduced emissions in order to achieve other foreign policy goals.” Moreover, Porter and Brown note three additional instances in which



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issue-linkages to non-environmental concerns played a primary role: “Japan’s concern with economic and diplomatic ties with other major trading nations and its international image helped tilt its stand on the [African elephant] ivory ban. French and British desires to maintain close relations with former colonies were a factor conditioning their views on the hazardous waste trade issue. The threat of trade sanctions constrained Japan and (until 1993) Norway from openly defying the ban on whaling.” Fourth, it is necessary to anticipate the probable losers who have a clear incentive to form a blocking coalition as well as to anticipate the likely winners who have reciprocal reasons to form a leading coalition. This analysis is especially relevant to business and industry because: (1) they often have considerable concentrated power; and (2) they need to realize that the emerging framework of sustainable development is less of a threat than an opportunity. From the viewpoint of sustainable economic growth, pollution may be seen as a development problem. Activists must engage the business community on the basis of self-interest. Of course, these areas are interdependent. For example, regarding the negotiating history of stratospheric ozone depletion, the reason why the United States initally became a leader (as opposed to laggard) probably had less to do with the 1985 Antarctic ozone hole discovery than the conversion of American CFC producers who began to realize that the costs of losing CFC markets would most likely be far outweighed by the benefits in developing and in supplying environmentally friendlier substitutes. The GNI would do well to recognize how private domestic interests influence the negotiating positions of their respective governments. In this way the ONI may work with and demonstrate to governments and industry alike that finding solutions to environmental problems can have more winners and fewer seriously damaged losers than is typically presumed. Seeking opportunities for cooperation the WNC would initially look for shared interests within and among the sustainable development and the global change communities. A study that measured N emissions from two commercial sugar cane plantations in Hawaii (Matson and others, 1996) provides an instructive example of linkage of interests between these two groups. One plantation used multiple split applications of fertilizer containing increased amounts of N according to the needs of the growing crop; the fertilizer was dissolved in water and delivered under the soil’s surface. The second plantation applied N fertilizer onto the soil surface, fewer times but more intensively. N use in the first, more knowledge-intensive, system was 33 percent per crop less than that used in the fertilizer-intensive system; emissions of N2O and nitric oxide were l0-fold less in the first than in the second. Furthermore, the knowledgeintensive system achieved a higher yield with greater profitability, demonstrating


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that “applying more knowledge proved cheaper than applying more fertilizer” (Vitousek and others, 1997a). Those who could benefit from this example include farmers who are wasting money; fertilizer producers who are concerned about future revenues; corporations developing irrigation-delivery and pollution-control technologies; local groups concerned about contaminated drinking water and environmental damage from agricultural runoff; agricultural bureaucrats who may subsidize fertilizer sales; environmental bureaucrats; foreign affairs bureaucrats charged with climate change duties from the N2O emissions; numerous MEA Secretariats; and the host of scientists and policy makers involved with climate change, ozone depletion, N cycling, and other areas of global change issues. The same information is valued by very different groups because each can use it to further its own interests. The sustainable development community gains from an environmentally friendlier production with higher profitability, while its global change counterpart gains from the lower pollution rates of the harmful N compounds. While groups may benefit in different ways from a piece of information, chances for cooperation improve when more benefits are available for distribution. Obviously, the NOx subgroup faces a more difficult challenge in discovering linkages, because the fossil fuel combustion issue is more contentious than the N fertilizer–agricultural yield issue. For instance, interests injured by regional acid rain (and eutrophication) or by local smog need to form a coalition with environment and health regulators as well as with the pollution control and the alternative energy industries. This public-private partnership within the sustainable development community must work with opposed groups and implement defection strategies (for example, green taxes). At the same time, the interests of the global change community—lGOs such as the WCFSD, WMO and the World Health Organization and MEA Secretariats such as LRTAP, CBD and U.N. Regional Seas Programs, to name a few—may dovetail nicely as they need standardized information about NOx emissions and their effects on human health as well as terrestrial and marine ecosystems and their species. Lastly, what issue-linkages can be used to bring in valuable players who have little or no interest in N-related issues? Financing the GNI is another critical issue. There are two avenues of support, rerouting current funds and generating new money. One estimate of the 1995 research budget for global change in the United States alone was almost $2 billion. This includes support for research on carbon, forest productivity, and climate change, examples of environmental issues linked to N management. GNI-related research could be supported by redirecting funds from existing budgets.



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Potential contributors of new money include the government, non-profit groups, business, and consumers (whose activities are damaging the environment). As mentioned previously, green taxes offer a tremendous source of revenues. Given the market size of industries related to N fertilizer use and fossil fuel combustion, an insignificant tax that internalized these externalities would raise appreciable funds. Because the GNI will involve forming new partnerships between the public and private sectors, non-profit groups and corporations may be willing to support it. The most obvious examples of businesses that might invest in the GNI are the pollution-control industries. Businesses that focus on engine efficiency and irrigation-delivery, for example, might see an advantage in a cleaner environment. Their trade groups or the World Business Council on Sustainable Development might be approached as well.

Policy Prescriptions The GNI will, of course, offer specific policy recommendations. For example, the N2O emissions subgroup might be best addressed as a protocol to the Vienna Ozone Convention or the FCCC. Each treaty has advantages. An advantage of the FCCC option is that public concern over N2O is focused more sharply on its potential as a greenhouse gas than as an ozone-depleting chemical. An advantage of the Vienna Convention is that the regime is already overseeing the monitoring and the phase-outs of many ozone-depleting chemicals. The ozone protocol option would also have the advantage because it offers a higher probability of relatively quick improvements in environmental conditions. Furthermore, the FCCC is already deeply involved with regulation of many greenhouse gases, and the FCCC negotiations have yet to complete a binding protocol. The Vienna Convention option offers the more immediate benefits of reduced N2O emissions and would have positive spillover effects for climate change. Second, the NOx emissions subgroup would select and prioritize a mix of regional monitoring modeling projects, with special consideration given to two areas: (1) the relatively extensive research already undertaken with LRTAP and the U.S. Clean Air Act amendments; and (2) the need to research the tropics. Furthermore, if airsheds approximate the watersheds of the U.N. Regional Seas Programs, it is possible to append regional Experts Groups to those established institutional arrangements. To further the goal of including NGIs from the planning-process forward, selection and prioritization processes would involve joint collaboration between the Experts and the Eminents. Third, the GNI would sponsor a N-Efficiency Project to promote best practices for land use and technologies for the prevention, reduction, and remediation


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of N fertilizer use and fossil fuels combustion. The Hawaiian fertilizer research cited above reflects just one of many management options that deserve wider dissemination. Others might include the restoration of wetlands, riparian areas, and other natural nitrogen traps (as well as the construction of artificial ones) which have been shown to reduce the amount of N transferred from agricultural land to the Baltic ( Jansson and others, 1994). Furthermore, Monsanto is researching the likelihood of genetically engineering crops that require less fertilizer (Stevens, 1996). Fourth, the GNI would have a Tech-Transfer Project that would help move knowledge and technology (Vitousek and others, 1997a) for managing N fertilizer use and NOx emissions to developing nations. Fifth, if it becomes apparent that the GNI structure outlined in previous sections is unfeasible, an alternative virtual structure—a cyber-GNI—may be created. One criticism of the GNI is that unless irreparable harm can be proved the creation of yet another international environmental institution is unwarranted. There are already too many; often wasting time, money and goodwill. The virtual GNI would include a web site, an e-mail list server, and a GNI chat room. The web site www.gni.org would provide information about the organization: that is, its structure, function, goals (including mission statement) and strategy; the scientific concerns and findings; and the policy alternatives including technological innovations. It would also have a page of links to related web sites. An e-mail list server would keep the multi-stakeholder constituencies updated on recent readings and undertakings of both immediate and ancillary interest that might advance interdisciplinary thought and cooperation. The chat room—or a series of chat rooms, if necessary—would be inaugurated and moderated to engage the multiple stakeholders in an ongoing conversation so that each interest group learns more about the other, thereby improving the probabilities of mutual-gain collaborations. The virtual GNI has advantages and disadvantages. Disadvantages of the cyber-GNI include: (1) running a potential risk that a scaled-down approach hinders the construction of a larger-scale organization that might already be necessary; and (2) the need to start relatively low on the learning curve. However, the advantages are many. The most important is probably that the reduced financial requirements make the enterprise more feasible. Another benefit is the structure’s non-geographical nature, which saves costs of time, travel and money. The virtual GNI would also be a convenient and efficient forum to gather, discuss, and disseminate information about N-related science and policy. Finally, in addition to advancing an informal participatory network, the cyber-structure would promote fall-forward incrementalism. It is malleable enough to grow if future research confirms that the risks and harms from N-related environmental problems



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are increasing. Scientific and policy agendas along with a chronicle of the issue’s history would already be in place to support future institutional growth.

Conclusion In closing, we speculate on how this unprecedented experiment in negotiation might serve as a template for modeling and policy making for other grand nutrient cycles, their relationships and their environmental effects. For example, it has been stressed how carbon and N interact, and how the two have implications for the FCCC, CBD, and WCFSD. The IPCC has developed an elaborate carbon cycling research program. Would the efforts of future climate change adaptation and mitigation strategies (including joint implementation projects) be facilitated by an informal multi-stakeholder dialogue that parallels the Initiative’s WNC? Moreover, the GNI template might also be relevant to the Sulfur cycle. We know that SOx and NOx cause acid rain and associated problems. We also know that certain sulfuric compounds counteract climate warming by reflecting solar radiation, thereby acting as a planetary coolant. Thus, a Sulfur initiative, so to speak, might complement scientific policy with a debate surrounding multiple MEAs. As the LRTAP experience demonstrates, the simultaneous monitoring and modeling of SOx and NOx can be done with minimal financial and institutional additions. In this way the regional N and Sulfur Experts as well as their Eminents might join with the IPCC and a world Carbon commission to form an umbrella organization—the Intergovernmental Panel on Global Change and Sustainable Development. Such a coupling of scientific and policy activities related to the grand nutrient cycles should enable the international community to more comprehensively address the cross-media effects and to rationally design and choose among policy options. The diverse members of the international order might collaborate with these non-state actors in addressing old problems in a new framework. While the GNI—not to mention the entire series of holistic multimedia approaches to the biogeochemical cycles—is admittedly ambitious, we do not propose to establish the entire Initiative at once, especially given the lack of experience with the holistic multimedia approach. Although LRTAP has moved us well along the learning curve, it is probably prudent to initiate a series of pilot projects—including a cyber-project, the virtual GNI. As research provides information about the cost and benefits that businessas-usual continuously distributes, rational agents will seek to form coalitions to further their re-evaluated interests. We expect that the GNI will serve as a catalyst


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for dialogue among the winners and losers—a catalyst that leads to less fingerpointing and more problem-solving. The stages involved in constructing the GNI, like other instances of global environmental politics, cannot be rushed. Consensus building on issue identification, fact finding and bargaining over institutional formation take considerable time. Yet, because the stages will greatly influence, if not ultimately determine, the GNI’s strength and effectiveness, prudence suggests immediate, if modest, action. As scientific advances reveal environmental conditions and risks with increasing accuracy, the GNI’s institutional capacity can grow with it, built upon a foundation of scientific expertise and policy-making experience.


Y CHAPTER FIFTEEN

A PROPOSED INTERNATIONAL FRAMEWORK CONVENTION ON BIOINVASIVE SPECIES Wendy M. Jastremski

Introduction to the Bioinvasive Species Threat Anthropogenic activities transfer species from one ecosystem to another via several different vectors. Scientists tracking these introductions believe that these organisms usually have no observable effect on the receiving ecosystem. Exotics generally do not survive long enough to establish themselves in a new ecosystem. Despite the low risk of establishment, introductions of exotic species still pose a large economic and environmental risk. It only takes one bioinvasive species to wipe out several native species due to new competition for food, predation, or disease (Leavitt, 2000). Effects on crops or infrastructure can be economically devastating, resulting in the loss of billions of dollars in repair and control costs (Pimentel and others, 1999). Most exotic species are accidentally transported in the ballast water of ships, in packing materials, or attached to another desired organism. This chapter focuses largely on ballast water transport, primarily because the great majority of aquatic bioinvasions are thought to occur because of ballast water exchange (United States Coast Guard, 1997). The shipping industry is responsible for transporting over 80 percent of the world’s goods from exporter to importer. Along with their intended cargo, these ships are estimated to transport approximately 10,000 species each day in the water contained in the ships’ ballasts

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(Carlton, 2000). Every country involved in the global market is at risk of bioinvasion by an unwanted species or disease. The following pages will define bioinvasive species and describe some of the most common vectors of introduction. Research on past bioinvasions and the lack of existing control methods suggest the idea of an international convention to better prevent the transport of exotic species from port to port. This chapter suggests that certain agencies of the United Nations, focused on managing our oceans and seas, draft an international convention for delegates to modify and adopt at a conference. International scientific advisory bodies such as the International Council on Exploration of the Seas (ICES) should be invited to present research and information to the delegates. The draft convention, modeled after recent U.S. legislation on bioinvasives, would list issues of concern to the delegates and outline a research-based action plan for the prevention of exotic species introduction. Signing nations would modify the action plan into a more specific national plan. Finally, the chapter argues that the World Trade Organization (WTO) is a key player in the success of the convention. Only this organization has the power, which is lacking in existing treaties, to force the powerful shipping industry to modify its practices to prevent species transfer in ballast water.

Bioinvasive Species and Vectors of Introduction Non-native, nonindigenous, exotic, foreign, and alien are all terms used interchangeably to describe organisms that are not originally from the ecosystem in which they are found. The terms bioinvasive species and nuisance species apply to these non-native species when they become a problem for ecosystems or for humans. For example, ships transported European green crabs to Cape Cod in the United States in ballast water. These crabs are considered a bioinvasive species because they prey upon shellfish, an important source of revenue for Cape Cod. The high proliferation rate of the crab, its voracious eating habits (up to 40 shellfish per day), and the lack of a natural predator make this species a threat to the local shellfish industry and potentially to the existence of native shellfish species (Fraser, 1997). It is important to note that not all nonindigenous species are considered bioinvasive species. Most exotic species have no detectable adverse effects on humans or the environment. The introduction of a species does not mean that the nonindigenous organisms establish themselves in the new location. “Establishment” means that the species becomes a permanent, reproducing member of the new ecosystem. Fortunately, most accidentally introduced species are unable to establish themselves (Carlton, 2000).


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Finally, one can consider the intention of a species introduction. An intentionally introduced species is one that a person or industry purposely introduced and cultivated, desiring to establish that species in a new area, such as citrus fruits in the United States (Soars, 2000). Accidental introductions of nonindigenous species are vastly more frequent. Transfer of these accidentally introduced species occurs via a vector such as ship ballast water, ship fouling (organisms arrive stuck to the hull of a ship), inside packing materials, or as a “piggyback species.” Piggyback species are organisms that are attached to an intentionally introduced or transported species. For example, the bioinvasive European green crab spread from the East Coast to the West Coast of the United States with bait worms shipped from Maine. Shippers packed the worms in seaweed to keep the worms alive during transport. Crab larvae had attached themselves to the seaweed and also survived the trip. When the worms were harvested from the shipment, the seaweed was tossed into the Pacific Ocean, releasing the crab larvae into a new ecosystem. Diseases borne by introduced species are also considered accidental introductions (Pederson, 2000). In an effort to prevent accidental introductions, scientists have documented these and other vectors of transport for nonindigenous species and have attempted to track invasions. International trade is the largest vector of introduction (Lind, 2000). In the case of aquatic species, there are two main vectors of entry: ships and fisheries. Both vectors of species transport are a result of trade. Bioinvasive species introductions via shipping are considered accidental introductions. Introductions by the fishing industry are usually intentional, such as the European oyster, which makes up most of the harvest for the Cape Cod shellfish industry (Burt, 2000). However, these target species can also accidentally introduce shellfish diseases or bioinvasive piggyback species. Common shipping practices caused the introduction of the bioinvasive zebra mussel to the United States. The ballast water in the ship, used to balance the onboard load, also contains many small creatures such as larvae, eggs, and plankton. Ships from all over the world fill up their ballasts with water from Europe and Asia and discharge that water in the Great Lakes region. The ballast water contained tiny mussels (or more likely mussel larvae) and the hardy species established itself in the new ecosystem (Mills and others, 1994). Ballasting policies are the main focus for this proposal, due to the number and volume of aquatic species transported in the ballast water of ships daily. However, ships also transport terrestrial bioinvasive species. One example is the brown tree snake (boiga irregularis), which military ships accidentally introduced in Guam after World War II when moving equipment onto the island. Within 20 years of their arrival to the island, the snakes caused the extinction of 12 out of 13 native bird species and nine out of 12 native lizard species. Now, only 50 years after their arrival, there are over 13,000 snakes per square mile.


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The snakes pose a public health risk by polluting foodstuffs and transmitting diseases such as salmonellosis, leptospirosis, plague, and murine typhus. Bite treatment costs alone reach about $30,000 annually. The snakes crawl up utility poles and cause electrical power outages across the island. These snake-related infrastructure disturbances cost local businesses over $1 million annually. The snakes cost Guam over $3 million annually in controlling the species and control method research costs (Pimentel and others, 1999). The costs of such invasions to a larger country would be astronomical. These snakes are invading Hawaii via trade vessels and have also been seen on ships docked in the United States at Corpus Christi, Texas in the 1990s.

Increased Risk Ships have been traveling around the world from port to port for hundreds of years, which leads one to question the need to be concerned with species transfer now. Bioinvasions with huge control costs like the zebra mussel in North America might be passed off as bad luck or too rare to worry about. Risk analysis, cost-benefit studies, and other analytical techniques are unable to demonstrate the urgency to act because of their limitations in quantifying the new risks posed to aquatic ecosystems in the past decade. Changes in the shipping industry have substantially increased the risk of invasions. The accessibility of goods on the global market has increased dramatically (partially due to recent leaps in improving global communication), which has in turn increased international trade. Larger ships are available, which carry more ballast water (and therefore more species). Faster ships have shortened travel time, facilitating survival of species contained in the ballast water. Changes in donor regions have added new species to the mix. Changes in the recipient regions have made some areas more vulnerable to invasions. Even some environmental protection efforts have increased the risk of bioinvasions. Due to environmental regulations, ships must now dedicate certain tanks solely to ballast water, reducing the presence of petroleum products in the water (Carlton, 1996). Unfortunately, cleaner ballast water facilitates the survival of potentially bioinvasive species. Tributylin (TBT), a once widely used additive in anti-fouling paints, was recently banned due to the environmental harm the paint caused. TBT helped minimize the spread of exotic species by preventing organisms from attaching to the hull (ship fouling). There is currently no safe replacement for TBT, which may make ship fouling a problem once again (Gollasch, 2000). The bioinvasive species threat is linked to other global problems, such as climate change. As discussed earlier, most introduced species do not establish themselves in the new environment. However, that might be changing slowly as the



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climate warms. To illustrate this possibility, consider the species of seaweed, porphyra yezoensis, imported from Japan to the U.S. for aquaculture purposes. Scientists submitted proposals and research data to ICES and the state of Maine, seeking to introduce the Japanese seaweed in Cobscook, Maine. The scientists with ICES and in Maine allowed the aquaculturists to introduce the exotic species because research on temperatures suggested there was no risk of invasion. Currently, the seaweed reproduces and grows readily for harvesting in the warmer months but dies out over the winter because Maine waters have always fallen below 25C in winter (Cheney, 2000). Should climate change warm the world’s waters even a few degrees, seasonal exotics could permanently establish themselves in the host ecosystem and become bioinvasive. GMOs, or genetically modified organisms, pose another risk. In the quickly advancing field of genetic modification, excitement over the expected benefits of scientific advancements may lead researchers to introduce species without enough knowledge of potential negative impacts. Information on the AquAdvantage Salmon can be found on the glossy pages of biotechnology journals. The genetically modified salmon grow 400 percent faster than traditional salmon, which would help U.S. aquaculturists keep up with Chilean aquaculturists (Aqua Bounty Farms, 1998). The salmon farmed in Chile is available at a price that presently undercuts U.S.-farmed salmon because of cheaper labor costs. Industry development centered on the farming of any exotic species creates risk for release of that species into the environment. An accidental or intentional release of a genetically modified or engineered organism is widely accepted as a nonindigenous species introduction by scientists (Cheney, 2000). The GMO may be bioinvasive in the wild or could introduce new diseases to native species. Economic incentives (or the profit potential) may also affect the decision making of individuals who stand to profit. For example, one American academic scientist, unable to get approval to introduce a genetically modified species of seaweed in U.S. waters, has already sold the organism for aquaculture purposes in China. The seaweed is growing right now, unregulated, in open water (Cheney, 2000). How long until the seaweed is transported back to the United States, this time in open waters instead of the laboratory, despite the fact the species is unapproved?

Proposal for an International Convention on Bioinvasive Species A globally unified approach would be the best way to prevent biological invasions. The more countries that adopt a preventative protocol for shipping practices, the lower the chances will be that ballast water will transport live exotics. A


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multifaceted approach, including an international treaty requiring individual national plans and involvement of the WTO, has the most potential to successfully control bioinvasive species. Education of the delegates is crucial, since many may not realize they need to address the problem of exotic species transfer. International scientific bodies such as ICES and the North Pacific Marine Science Organization (PICES) should be present at the negotiations to inform the delegates of the economic and environmental impacts bioinvasions can cause. Non-governmental organizations (NGOs), such as the Nature Conservancy and the World Wildlife Federation (WWF) also have considerable and comprehensive data on past invasions to add. Much of this information can be accessed on the Internet. ICES and PICES International scientific organizations offer the most neutral and comprehensive systems to consider intentional species introductions via fisheries. ICES, founded in 1902, requests individuals planning to introduce an exotic species in waters affecting the Atlantic Ocean to submit a proposal to their scientists for approval. The council reviews the scientific information and tries to predict whether or not the species will become invasive. Unfortunately, ICES can only make a recommendation; the council has no power to prevent an introduction, regardless of risk (Carlton, 2000). In 1992, representatives from nations concerned with bioinvasions in the Pacific Ocean established an analogous organization, PICES. This organization is also powerless to impose any recommendations not to release an exotic species (Carlton, 2000). Despite their limitations, both ICES and PICES are a valuable resource of expert scientists. The convention drafters should consult them on the risks of introducing exotic species. The Convention on Biological Diversity The Convention on Biological Diversity, opened for signature as part of the Rio Declaration on Environment and Development (1992), stresses the importance of preserving biodiversity. However, this document contains only one sentence specifically regarding exotic species. Article Eight requires each signatory, as far as “possible and appropriate,” to “prevent the introduction of and to control or eradicate those alien species which threaten ecosystems, habitats or species” (United Nations Conference on Environment and Development, 1992: Article 8, Section H). This convention could serve as an avenue for regulating exotic species, but it is not likely to be effective as written. Agreements have still not been reached on how to handle the inequitable distribution of species diversity. The countries with



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the most biodiversity are also those with the least amount of resources to protect that biodiversity. There is little utility in placing another burden on those countries to regulate exotic species transfer under the same treaty (United Nations Conference on Environment and Development, 1992). Still, the treaty reinforces the assertion that preserving biodiversity should be an international objective. The Law of the Sea The Law of the Sea is an international treaty that countries could utilize in a bioinvasive species convention to allow shipping vessels to take necessary actions to prevent the transport of species in ballast water. Signed in 1982, delegates created the treaty in order to address international concerns about the passage of ships and their activities, stating specific guidelines for nation-states to follow (The Law of the Sea, 1982). The document is signed by enough nations so that in general, even nonsignatories comply with the Law of the Sea. The treaty outlines requirements for the innocent passage of ships through foreign waters, prohibiting activities harmful to other nations and asserting that travel must be “continuous and expeditious” (The Law of the Sea, 1982, Article 18, Section 3, Part II). The treaty specifically addresses exotic species in the following sentence. “Nation states shall take all measures necessary to prevent, reduce and control . . . the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes” (The Law of the Sea, 1982, Article 196, Section 1, Part XII). Although the Law of the Sea expresses in this one sentence a concern for exotic species transfer, it does not provide any information for determining whether or not an exotic species will be bioinvasive and whether or not a bioinvasive species will cause environmental and economic damage. Some suggest that classifying exotic species as pollutants would strengthen a nation’s ability to protect itself from bioinvasions. Nations could take advantage of the power to protect their waters from degradation by interpreting passages written to control pollution to control species introductions. The treaty includes a list of activities, such as “any act of willful and serious pollution,” that could be perceived as “prejudicial to the peace, good order or security of the coastal State” (The Law of the Sea, 1982, Article 19, Section 3, Part II). The treaty grants a nation-state the power to “take the necessary steps in its territorial sea to prevent passage which is not innocent” (The Law of the Sea, 1982, Article 25, Section 3, Part II). In this section on pollution, the treaty requires ships to “take measures to prevent, reduce and control pollution of the aquatic environment” (The Law of the Sea, 1982, Article 194, Section 1, Part XII) and to monitor “the risks or effects of pollution” (The Law of the Sea, 1982, Article 204, Section 1, Part XII).


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It is tempting to consider classifying exotic species as pollutants to use existing control methods for exotic species introductions. In the case of ballast water, the exotics are an unwanted component of the discharge, like most pollutants. However, regulating exotics in this manner would be inconsistent because unlike most pollutants, most exotic species do not cause a negative impact on the environment (Carlton, 2000). In the United States, for example, citrus fruits, the Holstein cow, and the tulip are all examples of exotic species. These safe species have been mainstreamed into the agriculture industry, providing economic gain and personal variety (Soars, 2000). In fact, it is estimated that 98 percent of all exotic species introduced into the United States have had no negative impact (Leavitt, 2000). Arguing for the classification of nonindiginous species (like tulips and oranges) as pollutants is not a practical solution. The impression of reversibility is a second important reason not to consider bioinvasive species as pollutants. The toxic waste treatment industry has grown considerably since the 1970s. After the creation of the United States Environmental Protection Agency (EPA), science began implicating chemicals as human and environmental health hazards, leading to the ban and subsequent cleanup of many harmful chemicals. It is almost, if not entirely, impossible to similarly remove a bioinvasive species from an ecosystem once it is established. A harmful invasion is not reversible (Carlton, 2000). Imagine the complexity of trying to kill or completely remove from the oceans one particular species of shellfish and leave others unharmed. The General Agreement on Tariffs and Trade (GATT) The GATT, first drafted in 1947, serves as the protocol document for international trade. The treaty was designed to help nations engage in trade in a manner which should improve the economies of trading nations and to facilitate the development of the full use of world resources and the expansion of world trade with as few restrictions as possible (The General Agreement on Tariffs and Trade, 1947). The GATT forbids unjustifiable abridgment of trading privileges but also outlines legitimate reasons to deny trade with a country. Article XX of the GATT lists only ten reasons that a country may refuse imports. Among these, countries have the right to refuse trade if they deem refusal “necessary to protect human, animal or plant life or health” (The General Agreement on Tariffs and Trade, 1947, Article XX). If countries agreed upon a management plan for nonindigenous species introduction, they could refuse trade with exporters who failed to follow prescribed management practices. Given the rising economic impact of bioinvasives and the increasing risk of invasion, nations are more likely to begin to exercise this right.



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There are many studies and reports of bioinvasive species causing the extinction of native species due to food competition, predation, and so on. The increasing number of reports lends considerable weight to the argument that in the case of exotic species, denying trade could be justifiable to protect the ecological and human health of the country. Agencies of the United Nations (IMO, UNEP, UNCTAD) An international convention adopted in 1948 founded the International Maritime Organization (IMO) as an agency of the United Nations. The IMO entered into force in 1958 and met for the first time in 1959. All members of the United Nations are invited to join the IMO. Currently, the IMO has 158 member states. The IMO has three main working groups focused on the following issues: maritime safety, pollution damages, and liability and compensation. An IMO working group is currently collaborating with the U.S. Coast Guard and ICES on the bioinvasive species problem (Newsham, 2000). The IMO has six main bodies concerned with adopting and implementing international conventions. Conventions regarding the shipping industry can be brought up in any of the six, which are as follows: Assembly, Council, Maritime Safety Committee, Marine Environmental Protection Committee, Legal Committee, and Facilitation Committee. During the drafting process of the convention, international NGOs and intergovernmental organizations are invited to join the committees and subcommittees of IMO members. After the IMO completes the draft convention, they invite the members of all the nations in the United Nations to a conference, seeking adoption of the convention (International Maritime Organization, 2000). The IMO should expand on its established system to draft an international convention on bioinvasive species with the assistance of two other agencies of the United Nations. Cosponsoring the conference and working together on the draft convention with the United Nations Environment Program (UNEP) and the United Nations Conference on Trade and Development (UNCTAD) would help the IMO strengthen the link between protecting trade and preventing bioinvasions. UNEP is concerned with protecting and improving the natural environment (United Nations Environmental Program, 2000). UNCTAD is interested in maximizing trade, investment, and development opportunities of developing countries (United Nations Conference on Trade and Development, 2000). UNEP and UNCTAD have already been actively cooperating on trade and environment issues. Linking IMO with the already partnered agencies UNEP and UNCTAD would bring a greater knowledge of maritime issues to their expertise in trade and environment. In July 1997, UNEP and UNCTAD signed a Memorandum of


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Understanding that created a Capacity Building Task Force on Trade, Environment and Development (CBTF). This task force has been working to make resources more available to developing countries to promote trade with these countries (United Nations Conference on Trade and Development, 2000). By working together, IMO, UNEP, and UNCTAD could mobilize the CBTF to help find resources for developing nations to help them provide incentives for their shipping industries to comply with new shipping standards. The three-party draft convention would help build constituencies toward the goal of preventing future invasions. After the agencies have drafted a convention on bioinvasive species, the invited delegates should meet for the conference in Hawaii. The exotic islands would be a perfect place to educate the delegates about bioinvasive species. While small groups of delegates enjoyed tours of the islands, appreciating the diversity in flora and fauna, local organizations could speak to the delegates about the many problems Hawaii is having with invasive species, including the potentially devastating brown tree snake (U.S. Geological Survey, 2000). The conference should provide information from the international scientific research community on methods to prevent future bioinvasions by featuring speakers from ICES, PICES, and related, well-respected NGOs (such as the WWF and the Nature Conservancy). International experts should prepare streamlined reports on the environmental degradation caused by bioinvasives, resulting damage and control costs, and the cost effectiveness of available options for preventing the spread of invasions. The U.S. Coast Guard can also provide the IMO with information from their current research on the determination of a safe standard for ballast water (Newsham, 2000). The convention should require signatories to agree that their country will establish a plan for national invasive species management within a specified amount of time.

The World Trade Organization (WTO) The efficacy of the treaty could be strengthened by involvement from the WTO, the only international organization with the authority to negotiate global trade rules. The WTO uses the GATT as a guideline for developing trade practices (World Trade Organization, 2000). Since the shipping industry transports over 80 percent of all goods traded across the globe, obtaining the support of the WTO would help ensure the success of the convention (Carlton, 2000). The WTO could play a key role in encouraging the global shipping industry to follow specific practices and invest in technology needed to prevent the transfer of exotic species from port to port.



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Noncompliant shippers must be prevented from continuing business until they choose to comply through WTO pressure and international exclusion. The WTO has the strongest implementation mechanisms and extensive resources to assist developing nations with technology development to protect and facilitate trade. The WTO Committee on Trade and the Environment could meet with UNCTAD prior to the drafting of the convention to discuss aspects important to the WTO for consideration in the draft. Part of the WTO mission is “to ensure that international trade flows as smoothly, predictably and freely as possible” in the quest for a “more prosperous, peaceful and accountable economic world” (World Trade Organization, 2000). The rise in damaging bioinvasions of alien species is a threat to “smooth” and “predictable” trade. The WTO seeks to lower trade barriers to foster the breakdown of social barriers between cultures. Should nations begin to pinpoint imported exotic species from a specific nation as the cause of their annual economic loss to invasive species damages, negative sentiments may fester. The WTO is responsible for assisting nations in avoiding problems with negotiated agreements by serving as legal contracts and regulating the behavior of trading nations. In the case of the proposed convention on bioinvasive species, the WTO needs to be an integral player in the treaty enforcement mechanism. The WTO should help delegates reach an agreement between signatories on a response to noncompliant nations. For the convention to be effective, all major trading nations must comply and agree not to use shipping companies that are not meeting the standards of the shipping practices protocol.

Industry Involvement The majority of the burden to pay for new technology onboard vessels should rest with the shipping industry. The industry has a responsibility to protect their customers from devastating impacts directly related to shipping activities. According to UNEP, “in a number of developed countries that place a high priority on environmental protection, regulators and consumers emphasize the environmental attributes of products” (United Nations Environmental Program, 2000). This suggests that environmentally responsible shipping practices are preferred and that small environmentally related price increases would be well-tolerated. Due to economies of scale, the shipping industry could quickly recover capital invested in new equipment added to ships to prevent exotic species transport. Again, the goal is not to inhibit trade, but to protect the industry from the repercussions of contaminating an environment, eliminating native species, and causing expensive and inconvenient infrastructure problems. Placing the responsibility


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and damage costs on the shipping industry will motivate the industry to use its own resources to develop easier, less expensive ways to prevent the transfer of bioinvasive species. Several inexpensive methods to control species introduction via ballast water have already been researched. For example, in 1995 three aquatic scientists prepared a report for the U.S. Coast Guard and the U.S. Department of Transportation. The report details cautionary measures for different phases of the voyage: on or before departure from port-of-ballast water origin, on departure and/or while underway, back up zones, on arrival at ballast discharge destination port, and at return to sea. Relatively low technology recommendations, such as not intaking ballast water at night or in areas of sewage discharge or known disease incidence, are examples of some simple policies to follow. Different methods of exterminating organisms upon ballasting include water velocity and agitation and changing the salinity (Carlton and others, 1995). The exchange of coastal water for deep-sea water while in transit is often suggested as a solution but it is ineffective and dangerous. It has not been possible even under the best conditions to completely purge and replace the ballast water on any vessel to date; it is not, at this time, an effective way to remove all exotic coastal species (Carlton, 2000). Secondly, vessels were not constructed to withstand exchanging ballast while at sea. Doing so considerably jeopardizes the structural integrity of the ship itself (Newsham, 2000). The study of different methods of preventing the invasion of nuisance species is only in its infancy, and there are already many other ideas including UV radiation, filters, and temperature controls. If a bioinvasive species draft convention suggests technological or biological methods to prevent exotic species introductions, these methods must be carefully researched to investigate and fully understand risk of harm to humans, ecosystems, or other aspects of the environment. The use of chemicals to kill organisms in ballast or any other means that would pollute waters must be altogether avoided to comply with the GATT, the Law of the Sea, and other treaties. The key is to put the burden on industry to find ways to solve the problem. Industry has innovative thinkers and the capital necessary to fund research on bioinvasive species to find control methods that simplify the solutions and minimize the costs.

A Model for the Convention A draft convention on bioinvasive species and subsequent national plans should be modeled after existing U.S. legislation, such as the National Invasive Species Act of 1996 (NISA) and the 1990 Nonindigenous Aquatic Nuisance Prevention



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and Control Act (NANPCA). Section 1206 of NISA addresses the importance of international cooperation. The section advises a nuisance species task force to “provide timely advice to the Secretary of State concerning aquatic nuisance species that infest waters shared with other countries” (National Invasive Species Act, 1996, Section 1206). The Secretary of State is also encouraged by the law to “initiate negotiations with the governments of foreign countries concerning the planning and implementation of prevention, monitoring, research, education, and control programs related to aquatic nuisance species infesting shared water resources” (National Invasive Species Act, 1996, Section 1206). Provisions for similar national and international communication should be suggested in the convention for each national plan. NANPCA established the National Research Council on Aquatic Biodiversity, which concluded that there were six major issues regarding the introduction of nonindigenous species: 1. 2. 3. 4. 5. 6.

Prevention of accidental introductions Utilization of intentional introductions Utilization of genetically modified organisms Socioeconomic impacts of invasions Ecological impacts of invasions Control of the abundance and spread of invasions

(Nonindigenous Aquatic Nuisance Prevention and Control Act, 1990, Section 1202). Similar international issues should be outlined in the international convention, followed by a list of objectives to reach an agreed-upon goal for each issue. Each signatory should adopt the global goals and objectives into a national plan. Enforcement and monitoring will primarily occur within each signatory’s nationstate to avoid issues of sovereignty; however, nations should have the right to request reports from all vessels regarding their practices regarding invasive species and also request ballast water samples for compliance testing. An agreement on testing ballast water would help ensure the smooth continuation of trade, reducing the need for a country to use their power from the GATT to refuse trade (Carlton, 1996). An Executive Order from President Clinton established another U.S. council, the National Invasive Species Council, in 1999. The National Invasive Species Council is comprised of the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Transportation, and the Administrator of the Environmental Protection Agency. President Clinton charged the


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council to assist and to assign different government agencies to manage different aspects of the issue. The Executive Office set forth the duties of the council as follows, to: 1. 2. 3. 4.

Provide leadership on exotic species management Oversee the implementation of the 1999 Executive Order Coordinate, evaluate, and streamline the activities of federal agencies Provide an “Invasive Species Management Plan” by August 2000 (Clinton, 1999)

This “Invasive Species Management Plan” will detail the most recent researchbased precautions proven to help prevent the spread of exotic species. Information from this protocol should suggest recommendations for a bioinvasive species convention. Transfer of exotics will only be significantly reduced if all countries with a major shipping industry participate. Incentives for negotiators to sign a convention on bioinvasive species are numerous. Preventing bioinvasions could save the economies of their nations billions of dollars in future control costs (currently over $138 billion annually in the United States for all invasives) (Pimentel, 1999). Signing nations would make a commitment to protecting their nations’ natural environment from destructive species that could outcompete native species, forcing them into extinction. Enacting an effective bioinvasive species management plan offers protection of any existing fishing industry or tourist industry in the nation. Those adopting the convention would help to ensure an unrestricted flow of trade to and from their nation. Each signatory would establish its nation as a “good player” in the trade industry and could take advantage of an opportunity to link the convention to obtaining successes in other international interests.

Conclusion Bioinvasive species threaten ecosystems, economic stability, and biodiversity. Current efforts to prevent bioinvasions are minimal and often misguided. The shipping industry is the primary means for bioinvasive species introductions. The shipping industry itself currently has little interest in minimizing exotic species transport because the industry is not held responsible for the consequences of introducing harmful species. The industry would initially lose profits if it used funds for control technology or adopted new practices to eliminate species transfer.



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To prevent future bioinvasions, United Nations agencies such as the International Maritime Organization, the United Nations Environment Program and the United Nations Conference on Trade and Development should draft an international framework convention. At the conference, these agencies should educate diplomats on the implications of bioinvasions and the current risks directly caused by the shipping industry. The diplomats need to adopt policies that will change global shipping practices, placing the responsibility of the damage and control costs on the industry itself. The rising costs of bioinvasions to countries threaten the current stability of global trade. Currently, the only means of protection from bioinvasions is to deny trade. Although not yet employed, existing international treaties allow for countries to interrupt trade to protect themselves from bioinvasives. As more expensive invasions occur, countries will become more motivated to interrupt trade as a means of protection. The World Trade Organization needs to be included in the conference and called on to protect trade by forcing the shipping industry to adopt the practices outlined in the convention. These research-based practices need to be effective in preventing species transfer via ballast water to ensure safe trade for all. Summary of Acronyms CBTF

Capacity Building Task Force on Trade, Environment and Development

EPA

Environmental Protection Agency

GATT

General Agreement on Tariffs and Trade

GMO

Genetically Modified Organism

ICES

International Council on Exploration of the Seas

IMO

International Maritime Organization

NANPCA

The Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990

NGO

Non-Governmental Organization

NISA

The National Invasive Species Act of 1996

PICES

North Pacific Marine Science Organization

UNCTAD

United Nations Conference on Trade and Development

UNEP

United Nations Environmental Program

WTO

World Trade Organization

WWF

World Wildlife Foundation

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Y CHAPTER SIXTEEN

HARDER THAN PHYSICS Negotiating an International Regime to Limit Transboundary Consequences of Nuclear Waste Disposal Marcus Dubois King

lbert Einstein once said that politics is harder than physics—little comfort to those seeking a solution to the nuclear waste problem, the political aspects of which are far more complex than the scientific factors. There were 436 nuclear power plants in operation in the world in 1999 (IAEA Website, 2000). Over 150,000 tons of spent nuclear fuel has accumulated at reactor sites around the world; it urgently requires a means for disposal (Ritch, 2000). The world’s supply of nuclear waste is certain to increase. There are at least two possible explanations for this trend. One reason could be an increase in new reactor construction driven by the need to find energy technologies that can reduce carbon emissions under the mandates of the Kyoto protocol. In addition to this consideration, some countries such as the United States may be forced by litigation initiated by the nuclear utility companies to move spent fuel away from reactor sites. The solutions national governments apply to such local problems are likely to introduce waste into the international arena. Another potential reason for the increase in waste volume is that aging nuclear power plants are being decommissioned at an increasing rate. Some countries are moving away from the use of nuclear power altogether. For example, a national referendum in Sweden in 1980 called for the abolition of nuclear power by 2010. The German government under the control of the Green party has decided to eliminate its domestic nuclear industry entirely by the same year. This move has caused a German nuclear waste crisis as officials decide how to decommission

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and decontaminate plants and dispose of the unanticipated influx of associated nuclear waste in such a short time. Chapter 22 of Agenda 21 of the United Nations Conference on Environment and Development (UNCED) adopted in 1992 calls for consensus in dealing with the international nuclear waste problem. This material represents a clear and present danger because it is being stored at reactor sites that are often in or around population centers with insufficient environmental safeguards. This situation could lead to a crisis with transboundary effects that would require a rapid international response. Foresight and planning to achieve a permanent solution are clearly required. Consensus will be hard to reach because the nature and perception of the problem varies so much between locations. There is controversy over the very definition of spent fuel as nuclear waste. Spent reactor fuel is composed of elements that have been removed from a reactor because they no longer contain enough fissile material to sustain a nuclear reaction. The material consists mostly of uranium (U238), but also contains enough plutonium to be of potential economic and strategic value. Countries such as the United States view this as a liability because of security and environmental concerns whereas Russia and France view the plutonium as a potential economic asset. Taiwan is an interesting example of a country facing international complications within the waste dilemma. In Taiwan, the disposal problem is especially acute due to its dense population and lack of land on which to site a nuclear waste repository. Spent fuel rods have built up at reactor sites to near-critical proportions. Last year Taiwan reportedly signed a pact with the North Korean government to store its nuclear waste in an abandoned coal mine in exchange for $75 million to $200 million (Mann, 1998). Taiwan subsequently canceled the deal after objections by the South Koreans. North Korea has threatened to sue for breach of contract. It is ironic that the North Koreans would sue for the right to damage their own environment. They represent the other end of the spectrum in the nuclear waste issue. The Taiwanese example is illustrative of a more widespread problem, the ability for advanced, nuclear industrialized nations to take advantage of lessdeveloped nations by exporting nuclear waste. Exacerbating the Taiwanese dilemma is its inability to seat a delegation at an international conference to discuss nuclear waste disposition because of the likelihood of Chinese objection to its inclusion. Taiwan reportedly is negotiating a deal to dispose of waste in the pristine Marshall Islands. The purpose of this chapter is to present a design for an international waste regime with the capacity for dealing with multiple international factors. This approach would make possible the breadth of participation necessary to

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implement an accord. First, it should include an active role for the participation of national governments, the global nuclear industry, and a diverse contingent of NGOs. Taking into account the interests of these parties, I will describe a system that balances the rights of developing countries to set their own environmental standards and the needs of all actors including national governments, nonstate actors, industry, and the people who consume electricity. I will begin by examining the current body of law governing radioactive waste management and make suggestions about how this law can be improved and incorporated into adjacent treaty regimes in order to address the problem more effectively.

Assessing Scientific Uncertainty The issue of high-level nuclear waste disposal is long-standing and has proven to be politically if not scientifically intractable. Part of the reason for the impasse is the public perception of scientific uncertainty about how to dispose of the waste in an environmentally safe manner. While no nuclear waste disposal technique is universally recognized as environmentally acceptable, geological repositories have gained the most support from the world scientific community. This choice was reaffirmed by the 400 participants in the scientific working groups at the recent International Conference on the Safety of Radioactive Waste Management held in Cordoba, Spain, on March 13–17, 2000 (MacLachlan, 2000). The U.S. Department of Energy has endorsed the idea of an international nuclear waste repository and is currently working along with several groups of independent experts to address this situation. Although they are unrelated to the question at hand, the events at Hiroshima and Chernobyl influence the public’s idea of the risks associated with nuclear waste disposal (Allegre, 1999). According to Ambassador John Ritch III, U.S. Ambassador to the United Nation in Vienna, public concern rather than science is the key to the waste issue: “Waste is the most genuinely substantial problem associated with nuclear energy not because the problem is scientifically insoluble but because for years we have failed for essentially political reasons, to implement, anywhere in the world, the soundly developed concept of a [final] nuclear repository” (Ritch, 2000). As Ritch indicates, the difficulty in achieving this goal is confirmed by the fact that no final, deep, nuclear geological repositories are in operation anywhere in the world for spent fuel and high-level waste. The earliest permanent deep geological disposal site for high-level waste is supposed to be in operation in the United States by 2010 at Yucca Mountain, Nevada. This goal is unlikely to be reached

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for political and legal reasons (O’Neill, 1998). Other countries, with the possible exception of Sweden, are further behind than the United States where ground has already been broken for a permanent repository. The 1997 Convention on the Safety of Spent Fuel Management and the Safety of Radioactive Waste Management reflects the seemingly reasonable principle reached by consensus that each country should be responsible for the disposition of its own waste. However, it has not entered into force. An essential problem with the underground repository approach is that not every country in the world possesses a geologically sound site within its territory. The construction of international repositories raise a number of environmental red flags. The establishment of an international program will require a new nuclear waste treaty regime. This new regime must ensure that nuclear waste is transported in a safe and secure manner and disposed of in a way that is equitable for both developed and underdeveloped nations.

Weaknesses of the Current Nuclear Waste Regime A weakness of the current regime is that prohibitions on the disposition of nuclear waste are currently spread across approximately eight international agreements, depending on how waste is defined and other factors.1 This condition is further complicated by the fact that each agreement has found a different level of compliance. No one country is a party to all of the nonregional agreements controlling nuclear waste. International solutions to spent fuel disposal problems of questionable legality have included blasting it into outer space; establishing a geological repository in Antarctica; or injecting it into the deep sea bed. The language of the 1967 Outer Space Treaty and the 1959 Antarctic Treaties has not proven adequate to dissuade such suggestions. Other agreements lack sufficient scope. The London Dumping Convention prohibits the dumping of nuclear waste at sea but this prohibition only applies to low-level, civilian nuclear waste. The industry has tried to reach solutions without the participation of national governments. The most recent proposal by a private international consortium called Pangea involves the transportation of waste over great distances to a proposed international geological repository site in Australia. This deal has reportedly fallen through due to unanticipated political opposition in western Australia. The company now plans to concentrate hopes on countries of the southern hemisphere that made up the ancient land mass known as Pangea that encompasses parts of today’s South America, South Africa, and Namibia (MacLachlan, 2000). The IAEA proposed a nuclear waste convention in 1994. However, the countries

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targeted by the Pangea project are precisely those that are least interested in joining this convention.

The Joint Convention Negotiations for the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management began under the auspices of the International Atomic Energy Agency (IAEA) in 1997. Based on a 1994 draft agreement, these negotiations were relatively short compared to those surrounding other major international agreements. However, these deliberations are still taking too long, given the urgency of the problem. The Convention is the first international agreement to directly address high-level waste and spent fuel issues. It generated a good deal of interest, with 50 countries participating in the Diplomatic Conference in 1997. By 1998, 21 of the 32 states that use nuclear energy to generate electricity had signed. As of March 1999, the number of signatories had risen to 39 (Uranium Institute, 2000). For the agreement to enter into force, it requires ratification from 25 states. It has received only 14 ratifications so far, and the rate at which new countries are joining has begun to wane. One of the main goals of the convention is to promote the principles of intergenerational equity by insuring that the environment is protected from the harmful effects of ionizing radiation so that the needs of the present generation are met without compromising environmental quality and energy independence for future generations. The Convention also requires signatories to plan for the final destination of waste produced by a facility before that facility may be constructed.

Makeup of the Signatories The geographical makeup of the signatories thus far is significant and problematic. A perusal of the signatories of the treaty yields the conclusion that they have certain traits in common. Two regional groupings are apparent. The East and Central European states of Romania, Slovakia, Slovenia, Croatia, and Hungary have ratified. The northern industrial states of Canada, Germany, Norway, and Sweden have also ratified. None of the major military or civilian nuclear powers such as the U.S., Great Britain, or France have ratified the agreement, although all three have signed it. Japan is notably absent from the list of signatories. In general the convention is an agreement of the nuclear haves. Only two of the countries that have ratified the agreement lack an operational power plant in their territory. With the exception of Brazil, Morocco, and the Philippines, no

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developing countries have signed the agreement.2 Countries that are in the process of building their nuclear power sectors such as China, Japan, and Taiwan have not signed. Furthermore, Morocco is the only African country to have signed. This is an ominous fact because these are precisely the countries that are most likely to be pressured into agreements to receive shipments of nuclear waste from the developed nations. African countries have been the targets of attempts to dump hazardous waste. The IAEA is the agency under whose auspices the agreement is being negotiated. They or some other organization must find a way to get the developing nations as well as the most technologically advanced to accept the treaty. The answer to this challenge lies in the application of interest-based negotiating techniques.

Other Weaknesses of the Joint Convention The major weakness of the convention is that it contains no links to other adjacent non-proliferation agreements. Past programs such as the United States Atoms for Peace Program have attempted to implement an interest-based system by providing nuclear technology to client states in exchange for the promise that this technology would not be used for military purposes. Article IV of the NonProliferation Treaty (NPT) contains a similar technology-sharing provision. To meet objections about discrimination on the part of the countries with advanced nuclear technology, the treaty stipulated that all parties were to participate in and have fullest access to materials and information for the peaceful uses of nuclear energy. Article IV of the NPT also states that any potential benefits of explosions for peaceful purposes would be made available to any non-nuclear weapons parties (US ACDA, 1990). This has generated some controversy because some developing states have claimed that the nuclear powers are not living up to their commitments under Article IV. Agreements such as the NPT and Atoms For Peace reward countries with nuclear technology in exchange for good behavior as defined by the treaty.3 They have no concern, however, with whether the nuclear waste generated by that technology-sharing arrangement is disposed of in a way that is safe for the global environment. This lack of harmonization may be exacerbating the waste situation. Likewise, nuclear waste that is not properly disposed of presents a proliferation risk. Building a nuclear energy capacity is a goal of many developing states. Therefore, a formal linkage should be established between the NPT regime and the Joint Convention whereby countries who fail to sign the Joint Convention would be denied the benefits of peaceful uses of atomic energy found in Article IV.

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In a similar fashion, countries that refuse to accede to the Joint Convention that represents responsible management and transportation of nuclear waste could be denied the benefits of nuclear power technology and IAEA technology-sharing programs that are independent of the NPT regime. Another factor that discourages the interest of developing nations is that the convention does not include a fund-raising mechanism. Finding the money for either meeting the technical requirements of the treaty or for enforcing it are the responsibility of the individual member states. Why would an African state that doesn’t have a nuclear ministry or a regulatory structure, let alone funding for enforcement, want to join the convention? As I have mentioned, African participation is vital because these nations are also currently being considered as sites for nuclear waste repositories. The governments of some states such as Algeria, Egypt, Libya, Namibia, South Africa, Tunisia, and Zimbabwe participated in the 1997 Diplomatic Conference on the Joint Convention. As of 1997, however, none of the countries have signed or ratified the agreement (IAEA Press Release, 1997). The interests of these nations are clearly not being adequately met. Part of the problem is the lack of capacity-building measures. A secretariat with a robust technical capacity could help these nations allay their concerns that they lack the technical capacity to comply with the agreement. In addition to capacity-building measures, African countries’ interests may be met through nuclear technology transfer of the benefits of $800 million worth of IAEA research in such areas as improving agricultural yields, nuclear medicine, and so on. Many countries either for reasons of size, technical constraints, or internal politics do not wish to develop a nuclear capacity. These nations should be allowed access to other types of energy technology such as gas-fired power plant design or renewable energy. Any technology that is shared through the mechanism proposed in this chapter should be consistent with the goal of carbon reduction under the Kyoto Protocol. In this way a pattern of cooperation could be established with the Joint Implementation Program as well as other projects funded by the Global Environmental Facility (GEF), for example. This would please all countries that favor implementing the Kyoto protocol as well as the developing nations who are the recipients of the assistance. The most intensive development in the nuclear sector is expected to occur in the Asian countries. The most significant among these are probably China, the Republic of Korea, Japan, and Iran. Thailand and Malaysia will probably be experiencing some growth in the nuclear sector as well. Korea is the only country in the region above to have signed the Convention. The absence of Japan is particularly noteworthy given the size of its nuclear program. Another factor is that the convention only addresses the civilian nuclear waste problem. A large percentage of nuclear waste is associated with the dismantling of

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the superpowers’ nuclear arsenals and their associated nuclear infrastructure. U.S. nuclear weapons activities have generated 700 times the amount of waste as has the civilian nuclear power program (Porter and Brown, 1991). The world’s nuclear waste problems will never be solved by concentrating on civilian waste alone. Finally, the convention doesn’t indicate a preference for a particular disposal or long-term storage option for nuclear waste. Article 14 of the Convention states that the technology incorporated into the design and construction of a disposal facility should be supported by “experience, testing and analysis,” and that an environmental impact assessment should be performed. It does not define the level of environmental soundness that the EIS should meet. It is arguable that a relative consensus has developed in support of the geological disposal. Those who support this view still must overcome political resistance. This is why the politics of the international nuclear waste issue is harder than the physics. The views of the political community are an expression of the polity who feel that the solution to the nuclear waste conundrum lies somewhere other than in their backyards. The best way to overcome the “not in my backyard” (NIMBY) syndrome is to internationalize the problem to places where local conditions are amenable to reaching a solution. It is essential that the system be designed in such a way that this will have the smallest environmental consequence. We must recognize that there is a key difference between nuclear waste and other types of hazardous materials—security concerns relating to non-proliferation. The Basel Convention on hazardous waste nevertheless contains some provisions that could be applied to the nuclear waste regime.

Incorporating Ideas from the Basel Convention The Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal was completed in 1989. There is an obvious high degree of correlation in the purposes of the two agreements. Some good ideas, particularly in terms of equity issues, for structuring a nuclear waste regime may be found in the Basel Convention. Like the Basel Convention, Article 27 § 1 (iii) of the Nuclear Waste Convention states that “a contracting party which is a state of destination shall consent to transboundary movement only if it has the administrative and technical capacity as well as the regulatory structure needed to manage the spent fuel or the radioactive waste in a manner consistent with the convention.” The African nations first voiced their concerns about waste colonialism during the negotiations surrounding the Basel Convention. Concerns about waste colonialism led to the subsequent negotiation of the Bamako Convention in 1991 that prevented noncontracting parties from exporting hazardous waste into Africa. The Nuclear Waste Convention suffers from the lack

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of a similar provision. The expenses of the Bamako Convention are not paid by the secretariat but rather by the member national governments. This has been an ineffective approach due to their lack of resources. In the case of the nuclear waste treaty, a strong, well-funded secretariat must be established that has the consultative capacity to determine whether proposed disposal facilities are environmentally sound. These experts should be independent of industries with a vested interest in siting the repositories. The secretariat should also determine whether a country’s institutional nuclear regulatory framework meets the criteria expressed in the convention before waste can be imported into that country. This group should draw upon the existing expertise of the IAEA but operate as an independent body. All of the proposals suggested thus far could be achieved by adding protocols to the current version of the Joint Convention. This would help the parties avoid the tendency to reinvent the wheel and set negotiations back to the level of discussing fundamental principles. It will take advantage of existing meeting arrangements such as a set meeting schedule, an existing group of experts, and a secretariat. The revised Joint Convention would continue to be a primary component of the nuclear waste control regime.

Interests within the Negotiation Process To understand countries’ positions regarding accession to the convention it is useful to examine the interests that underlie those positions. In a similar fashion to negotiations over many other international environmental agreements, there is a diverse set of actors in waste issues. National governments, the industry, and NGOs are the key parties forging a nuclear waste regime. During these negotiations, a good mediator such as Tommy Koh of Singapore, who was responsible for implementation of the UNCED process as well as mediation of the Convention on the Law of the Sea, would discern the value-created differences among the parties and then search for an agreement that reflects them and forge linkages around these differences to realize joint gains. These two goals must be achieved among parties with diverse interests. National Governments The interests of national governments fall into seven somewhat overlapping categories: 1. One group might consist of countries that possess nuclear weapons, have a history of use of nuclear power, and wish to promote non-proliferation. These

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states also tend to have nuclear industries that rely heavily on exports. Examples of the first group include the United States, Great Britain, and France. As the first nations to develop nuclear energy and nuclear weapons, these nations, particularly the United States, have a special responsibility to lead the international effort in finding a way of disposing of nuclear waste. The role of the United States is further enlarged by the fact that its participation, or at least tacit acquiescence, is necessary because most of the nuclear fuel in East Asia and a large amount in Western Europe is subject to United States consent requirements since it originated here under Atoms for Peace. The fuel can therefore not be sent to any facility without United States approval (O’Neill, 1998). The main interest of the United States in international nuclear politics is non-proliferation. The second group of countries includes those that have an active nuclear power sector but limited land on which to site a waste repository. They are current or potential waste exporters. Examples of the second group include Belgium, Japan, the Republic of Korea, and Taiwan. Several countries have expressed interest in becoming the site of high-level waste repositories. Examples of this group include the countries of Africa and South America, Australia, North Korea, Russia, and the Marshall Islands. Some economies in transition with a decaying nuclear infrastructure would like to export technology. Examples include Russia and Ukraine. Countries interested in acquiring peaceful nuclear power technology include Thailand and Peru. Many countries having no interest in developing peaceful nuclear power may sign into a regime in order to gain some benefits. These countries can gain from IAEA spin-off research. Examples include the countries of Africa, South America, and Oceania. Several countries have waste streams that are increasing because they are reducing reliance on or abandoning the nuclear option altogether. An example of such a country is Germany.

The Role of NGOs NGOs have shaped much of the debate on nuclear waste in recent years (O’Neill, 1998). The NGO community is dominated by groups that are essentially opposed to the use of nuclear energy. The Nuclear Control Institute and Greenpeace International have been especially vocal in this area. These NGOs are likely to oppose the transportation of nuclear waste across boundaries because of their assessment of environmental risk. The more entrenched aim of these groups may be to oppose a deep geological repository so that several years later they can be able to exploit the fact that a

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solution to the nuclear waste problem has not been found. New nuclear construction would then be halted in the absence of a solution to the nuclear waste issue. Their goal of shutting down the worldwide nuclear energy industry would thus be achieved. However, not every NGO is against nuclear power; the community continues to demonstrate a diversity of opinion. If the Kyoto Treaty takes full effect, they may realize, however, that this goal could be incompatible with the goal of limiting global greenhouse emissions. The NGOs would be encouraged by the implementation of higher environmental standards for the disposition of waste than those suggested here but they may continue to oppose transboundary movement for any reason. Industry With the worldwide nuclear industry in decline for the most part, the main concern of the international nuclear industry is survival. Industry was not represented directly in the talks at Cordoba, Spain. It has, however, joined in support of a geological repository in an industrial forum convened by the IAEA in January. The 20 groups represented were not individual companies but groups that keep in regular contact with the IAEA. The groups include the World Association of Nuclear Operators, World Council of Nuclear Workers, World Energy Council, the Uranium Institute, and the Nuclear Energy Institute (American Nuclear Society, 2000). Like the other group of experts convened by the IAEA, the industry feels that final or retrievable disposal in geological repositories is the most feasible option. Political and physiological barriers remain despite the fact that in the United States, for example, the energy industry has tried to raise public awareness of the fact that spent fuel is now being stored in many major population centers.

Solving the Political Equation The political equation must address security, environmental, and development needs. Furthermore, it must balance the aforementioned interests while finding funds to implement the solutions. Doing so entirely within the context of agreements between governments would be extremely difficult. The best hope for funding lies with reliance on assistance from commercial interests. An International or Regional Disposal Solution Nuclear waste management has always been considered an international problem because of its security dimensions, including the fact that the United States holds

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title to much of the world’s fuel supply. Negotiating an international regime has always proven to be too difficult, however (O’Neill, 1998). The idea of a regional nuclear waste repository is being driven by two factors. The first is the political or geological inability of some nations to site a deep underground repository within their national boundaries. The other is the aggressive marketing currently undertaken by some countries to have a regional facility sited within their borders for financial reasons. The Russian government has been the most aggressive on this score. The idea of an international repository is equally compelling for countries with relatively small investment (on the order of one or two reactors) in nuclear energy. These countries may not be able to raise enough money from ratepayer taxes to construct a disposal facility that meets minimal environmental criteria. Larger countries with more robust nuclear sectors as well as the declared nuclear weapons states will continue to be responsible for their own nuclear waste. The nuclear weapons states will at least be called on to contribute a greater amount to the regime in ways that I will explain later. Concentration of waste into centralized regional facilities would be less environmentally harmful than smaller more diffuse sites that may be constructed less expensively with fewer environmental safeguards. The spent fuel could remain in the repository either indefinitely or until enough research is done to determine a better disposal option. The largest problem with an international repository, other than financing, is the fact that measures are not yet in place to guarantee the environmentally safe transport of the high level waste to its destination. An associated question not addressed here is whether each national government will retain title to its fuel for liability purposes. If not, a private corporation or consortium must take title to fuel. I believe this issue is best handled by a related legal protocol to the convention beyond the scope of the current proposal. The interdependency of the regime is manifested by the fact that until a Joint Convention enters into force that defines the technical characteristics of a repository, measures will not be in place to guarantee that the facility to be constructed will meet minimum standards of safety. A private company called the Non Proliferation Trust is building an international repository in Russia. It is unclear whether they plan to use an agreed-upon set of safety standards. A Strong Role for the Private Sector The nuclear companies have a stake in finding a solution to the waste issue second only to that of the population at risk from inadequate disposal practices. Many nuclear utilities recognize that they could be held legally liable if an accident occurs involving spent fuel stored on their property. Many of these companies are in dire financial straits. The giant full-service company, British Nuclear Fuels Limited,

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was forced to lay off a significant percentage of its workforce this year. U.S. companies have been struggling to find markets abroad since there have been no orders for new nuclear plants in the United States since the early 1970s. These companies along with the IAEA should therefore provide personnel and expertise necessary to operate the international or regional waste repositories that would be commissioned by the treaty. European nuclear engineering companies in particular have a capacity to manage waste more advanced than many national governments. Industrial interests could be asked to fund the security measures that would be associated with the facility. Furthermore, the initiative for these repositories should come from industry because the issue is too controversial to be spearheaded entirely by either national governments or the IAEA. Also, if the interests of the nuclear industry are not addressed by an international agreement, it is likely that they will successfully lobby to oppose its ratification at the national level. Once constructed, an international repository would improve the worldwide public perception of nuclear power to the point where its use could be increased, thus providing societal benefits, keeping the companies running, and perhaps reducing emissions of greenhouse gases. The overwhelmingly largest obstacle to constructing a nuclear waste facility, however, is local or national public opposition. This is especially true in countries that have relatively democratic political systems. Public information campaigns must be initiated so that both key decision makers and the public at large can make risk-informed decisions. Internationalizing the problem is helpful because it can help overcome local opposition, allowing national governments to find a remote location within a country that has economic need, low population density, or more suitable geology. Whether or not one fully agrees with the ethics of externalizing the nuclear waste problem, momentum seems to be shifting in this direction. A system must be established to ensure that national governments have the capacity to ensure that site selection within their territories has been based on sound scientific analysis. The suggestions in this chapter regarding the structure of the regime may provide incentives to guarantee that as many stakeholders as possible benefit from the siting of the repository.

More Issue Linkages The first connection should be to link capacity building for developing nations to accession to the convention. Elevating nuclear waste issues on the agendas of non-nuclear states can only be achieved through issue linkage. This would occur

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otherwise only in the event of a disaster that grabbed worldwide attention. The central theme of this linkage proposal can be expressed as being either a carrot or stick. I will express it in terms of a stick. Under this proposal the countries that have nuclear industries capable of exporting reactor technology could join in a public/private partnership to establish an embargo against those countries who refuse to accede to the convention. The participation of the IAEA would be crucial at this stage. The IAEA engages in a wide variety of research on the benefits of nuclear technology. It has provided $800 million in technical assistance to member nations in the last 40 years. They have helped to fund the construction of 59 research reactors. In 1996, 95 countries participated in IAEA technology programs (IAEA Website, 2000). The sharing of isotopes for medical experiments is an example of the type of assistance the IAEA provides to member nations. There are other programs such as those that use radiation to improve agricultural techniques. A country’s level of access to this research could be made dependent on whether they have signed the convention. These measures would be more effective once a large number of countries, particularly those with nuclear export industries, have signed the agreement. The private sector can help provide other industrial incentives for joining the treaty regime. The second connection might involve linking the Joint Convention to the adjacent nuclear non-proliferation and security regime through a series of protocols. In order to accomplish a comprehensive international nuclear regime in which arms control interests are not at odds with environmental concerns, the nuclear waste convention should also be linked to the Non-Proliferation Treaty (NPT). Ideally, before nuclear technology is shared with a nation they should agree both not to transform that technology for weapons uses and not to encourage others to do so as well as to dispose of the products of that technology in a responsible matter. The NPT regime would be strengthened if countries really believed that their ability to import nuclear technology was dependent on signing. Elevating the nuclear waste issue to the agendas of non-nuclear states and the nuclear weapons states can only be achieved through issue linkage. A formal linkage should be established between the NPT and the Joint Convention whereby countries who fail to sign the Joint Convention would be denied access to benefits of peaceful nuclear energy found in Article IV. Similarly, countries that refuse to participate in the Joint Convention but have an interest in the responsible management of nuclear waste would be denied access to the $800 million dollars worth of IAEA research technologies that are independent of the NPT. With the implementation of these measures, the two agreements could be mutually reinforcing.

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Furthermore, this arrangement would secure the cooperation of the United States, which is legally necessary in many cases, because its main interest in nonproliferation would be addressed.

Modalities: The Secretariat Nuclear waste issues should be coordinated into one regime with one secretariat. With 131 members, the IAEA should be the coordinating body for global nuclear waste issues at least at the onset. The IAEA is the only group with sufficient technical expertise and has acted as a mediator with impartiality in the past. The organization was widely complimented for the objectivity it displayed in conjunction with a conference it held in 1998 on the radioactive impact of the French nuclear tests at Mururoa Atoll in the Pacific. In this case, the IAEA took the risk of inviting the participation of opponents but it was successful in the end when Greenpeace and others accepted the conclusions of the conference (MacLachlan, 2000). One advantage of using of the IAEA as the secretariat is the personality of its director, Dr. Mohammed El Baradei. Dr. El Baradei recently replaced Hans Blix, the former director who was from Sweden, a country with a Northern perspective. Dr. El Baradei is a lawyer, not an engineer as are most of his colleagues, from Egypt, a developing nation. His support for the Convention and willingness to devote IAEA resources to enact it has sent a positive signal to developing nations that are considering whether to become signatories. His leadership has helped to allay questions about the objectivity of the IAEA, an agency that is heavily dominated by technical experts from Northern countries. Under Dr. El Baradei’s guidance, the Cordoba meeting yielded the idea that the IAEA should convene a permanent group of stakeholders that include a wide range of experts beyond those that are sponsored by the government. The formation of this group, which plans to begin meeting later this year, is a step in the right direction. The IAEA has several incentives for wanting to participate in the Nuclear Waste Regime. One is found in their organic statute. It is an organ of the United Nations, but different from the other specialized agencies in that it functions as an autonomous international organization in a working relationship with the United Nations.4 Over time the continuation of the IAEA as the secretariat should be reexamined. It may be better to establish a more objective body since some of the technology-sharing arrangement will involve non-nuclear energy technologies.

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Compliance Under the proposed regime, three factors will limit the ability of a nuclear state to act in an irresponsible manner regarding disposition of its nuclear waste. The following aspects of the system are designed to encourage compliance: • Accession to a revised Joint Convention on Nuclear Waste Management with its associated linkage to the NPT regime • Fear of “voluntary” industrial sanctions for refusal to sign the NPT/Joint Convention regime • Desire to maintain membership in good standing in the IAEA itself to retain access to technology-sharing programs

Conclusion This chapter has made the case that laws regulating the disposition of nuclear waste are currently spread out among too many treaty regimes and do not adequately address the issues of spent fuel and high-level waste. These regulations should be consolidated into one agreement overseen by one secretariat. Several new protocols should be added to this agreement. The current Joint Convention contains several weaknesses that will prevent it from being effective assuming it enters into force. Chief among them are the fact that it contains no measures for capacity building, deals only with civilian waste, and provides no incentives for the participation of non-nuclear developing nations. Second, the chapter outlined the steps needed to exploit logical linkages to adjacent treaty regimes. A nuclear waste convention should be harmonized with the technology-sharing provisions of the Non-Proliferation Treaty so that one regime does not undermine the other. Principles such as those found in the Basel Convention on Hazardous Wastes should also be incorporated in the solution. For example, one of the requirements of the Basel Convention is that the state of destination can consent to transboundary movement only if it has the administrative and technical capacity as well as the regulatory structure needed to manage the waste in a manner consistent with the convention. Third, I have offered suggestions about how to internationalize the problem while meeting the diverse interests of the parties. Implementation of a system of international joint repositories is the best option for meeting the interests of states with small nuclear programs, those with limited geography, and those needing to generate revenue quickly. This arrangement could ease the financial crises of

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Russia and North Korea by raising revenue they need to address domestic environmental concerns. The international repository proposal should not go forward without the completion of a new Joint Convention. Despite political problems, the ideas of a waste convention and an international waste convention are gaining momentum. With the changes and linkages proposed here the initiatives have a better chance of coming to fruition more quickly while achieving their goals of controlling nuclear waste and proliferation and protecting the global environment. The proposed nuclear waste regime meets the interests of key players. Chief among them are the interests of the United States in promoting non-proliferation and the Russian need to improve its economic situation. The regime will help Japan, an economic superpower, to find a tenable solution to its waste crisis. Finally it prevents the developing nations from falling victim to waste colonialism while offering them greater access to clean energy technology.

Notes 1. Treaties that might have some relevance here include: The Convention on Nuclear Safety (1994), Convention on the Early Notification of Nuclear Accident (1986), the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986), Convention on the Physical Protection of Nuclear Material (1980), the Convention on the Prevention of Marine Pollution by Dumping of Marine Pollution and Other Wastes as amended (1994), The London Dumping Convention (1972), Antarctic Treaty (1959), Outer Space Treaty (1967). 2. The countries that have ratified the agreement as of 10 February 2000 are Canada, Croatia, Germany, Hungary, Morocco, Norway, Romania, Slovakia, Slovenia, Spain, Sweden. 3. Atoms For Peace was a program initiated by the Eisenhower administration that gave nuclear technology and isotopes that were developed in the United States to friendly nations in exchange for guarantees that they would use the technology for peaceful purposes only. This program was based on an address given by Dwight D. Eisenhower before the General Assembly of the United Nations on Peaceful Uses of Atomic Energy, New York City, December 8, 1953. This speech also helped create the IAEA. 4. The IAEA shares basic principles with the United Nations as evidenced by the wording of Article 1 of their charter in which it promises to “undertake activities within the purposes of the U.N. Charter [sic] furthering the establishment of worldwide disarmament and in conformity with international agreements entered into to pursue such policies.” (World Nuclear Transportation Institute, Radioactive Materials Transport—The International Safety Regime, www.wnti.co.uk, April 15, 2000.)


Y PART FIVE

GAUGING THE SUCCESS OF A MORE INTEGRATIVE SYSTEM

hen one views most international environmental treaties, the proposed solution is tied to proximate causes. In many cases this means that the proposed solutions address symptoms rather than underlying forces. Most environmental treaties for example address the problem as one of pollution rather than as a mismatch between technological and economic choices and the operation of ecosystems. Resource depletion is treated simply as a problem of overexploitation of ecosystems that can be addressed by setting quotas rather than as an inherent problem of how we have structured our demand for those resources. Also left out of most agreements is a realization of how they fit into other aspects of international relations. It has often been observed that there is a strong correlation between environmental destruction and the lack of human rights. Nations tend to be relatively weak or strong in both of these areas simultaneously. Because human rights pertain to the well-being of people, the protection of health and environment can logically be incorporated into that corpus. The right to life which is explicit in the U.N. Human Rights Convention cannot be assured unless the human environment is also maintained. There are already many parallels between the human rights and environmental movements including the critical role played by international NGOs as the eyes, ears and conscience of the world. It is time to link these two efforts to more effectively improve the quality of life for all people.

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Similarly, there is an increasing recognition of the multiple connections between national security and the environment. While some hostility among nations is caused by conflict over resources, it is not a far stretch to envision using environment and resource issues as a way to override hostilities. Environmental issues are viewed as less threatening to governments, and hence offer easier opportunities for them to develop trust. It is notable that during the Cold War, the United States and the Soviet Union continued to meet and discuss environmental issues even at times of greatest tension among them. Until recently, Israel and the Palestinians met over environment and water issues even as hostilities escalated. One can envision International Peace Parks, joint management of crossborder resources, and joint management of transboundary pollution as means for collaboration. Rather than cluttering the agenda, setting environmental issues in a broader context may actually open additional pathways to meeting environmental goals, while at the same time furthering the cause of human rights and regional peace and stability. Sustainability is, after all, not just about the environment.


Y CHAPTER SEVENTEEN

LINKING HUMAN RIGHTS AND ENVIRONMENTAL QUALITY Kristi N. Rea

The right to life is the most important among all human rights legally guaranteed and protected by contemporary international law. On the other hand, the right to life is the one which is, most of all, connected to and dependent on proper protection of the human environment. It is because this right, like no other, may be directly and dangerously threatened by detrimental environmental measures. The right to life and the quality of life depend directly on positive or negative environmental conditions. Simultaneously, we cannot forget that this is an original right from which all other human rights derive. PROFESSOR GALICKI OF POLAND SPECIAL SUBMISSION TO THE SPECIAL RAPPORTEUR ON HUMAN RIGHTS AND THE ENVIRONMENT, 1990

lthough the advent of technology has, in some ways, improved the mechanisms we can use to solve some problems of environmental degradation, it fails to alleviate the majority of environmental problems. As technology continues to improve, environmental damage also intensifies and it remains to be seen if technology can compensate for it. Is environmental quality a part of humankind’s inherent right to life as protected and codified under international law? If it is, are there any international forums available in which individuals might pursue claims of environmental degradation against their own country? This chapter attempts to address these questions.

A

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Human Rights and the Environment Although far from perfect, international law has codified and created a substantial number of covenants and conventions dealing with human rights, and has an international judicial body for dispute resolution through the International Court of Justice (ICJ). The Declaration of Human Rights, adopted by the U.N. General Assembly in 1948, was the first attempt to codify the notion that human rights existed and should be protected by law. Yet, under the terms of international law, a General Assembly Resolution such as the Universal Declaration has no binding effect as a source of law.1 However, although not a primary source of law, the General Assembly Resolution continues to be used to define what constitutes fundamental human rights and has had great influence on the codification of the International Covenant on Civil and Political Rights (hereinafter referred to as the Covenant).2 Under the terms of the Covenant, Article 6(1) is of most direct relevance to an analysis of environmental quality as an underlying element of an existing internationally accepted and codified human right. This Article states that: “Every human being has the inherent right to life. This right shall be protected by law.” It is important to note that the rights espoused in the Covenant are allowed to be derogated from, except for seven articles. Article 6 falls under this protection and does not allow state contracting parties to the Covenant to derogate from providing its citizens protection under the provisions.3 Even though international treaties and covenants impose legal obligations on state parties and not on individuals, treaties can develop provisions whereby individuals have powers to invoke judicial mechanisms to pursue claims against their own country. Although the ICJ has rendered decisions and advisory opinions on environmental issues, the statute of the Court is limited by Article 34(1) which states that “only states may be parties in cases before the court.” This implies that the ICJ is not an international forum available for individuals to pursue any type of claim, environmental or not, against their own governments. Although no international environmental tribunal exists presently for individuals or states to bring claims, individuals might have the option of locating environmental degradation with the violation of existing human rights in order to use international human rights mechanisms to pursue claims at the international level. The International Covenant on Civil and Political Rights contains a provision, under its Optional Clause, whereby individuals of a nation that has ratified the Optional Protocol can bring claims against its government for violations of the state’s human rights obligations under the Covenant.4 Given that the International Court of Justice is unable to accept and adjudicate individual international environmental claims, could the Human Rights Committee be used by individuals to classify environmental degradation as a


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violation of the “right to life”? If so, should the Human Rights Committee become an international forum for individual environmental claims, or should an alternative forum be created? Some Inherent Difficulties Why has environmental quality escaped international attention as a major threat to life? One reason may be that pollution-linked deaths are fundamentally presented as statistics, rather than as individual cases. While a murder is usually identified with an individual person, pollution-linked deaths are primarily viewed in aggregate terms. Another problem lies with the fact that murders primarily have one or many culprits who can be held responsible and duly dealt with. Pollutioninduced deaths, on the other hand, are not directly attributable to individuals, groups, nations, or corporations. Very often, all of us—including the victims themselves—have contributed in some form or fashion. The responsibility is diffused and therefore lost. The nature of most environmental problems is also a contributing factor. In many cases problems are transboundary in nature. For example, air pollution does not confine itself within political boundaries. This causes special difficulties in assigning liability, responsibility, and accountability for environmental degradation. A final difficulty with environmental problems is that they are fundamentally arduous to solve while simultaneously protecting individual freedom and our traditional process of development. Despite the environmental and social drawbacks of industrialization, it is unrealistic to assume that an alternative model for development will be practiced in the near future. In order to address immediate environmental concerns—given our present course of development—it is necessary to either shift development away from traditional patterns of industrialization or work within the present system to effect change and improvements in environmental quality. Neither of these options is simple. Given the value societies place on freedom—whether it be freedom to consume, to move, to work, or otherwise—it is often difficult to balance the protection of individual freedom with environmental imperatives. Although no right is perceived as exclusive and without limitations, certain levels of freedom and life as human rights have been protected by nations and are especially subject to scrutiny. Underlying the concepts of freedom and environmental protection as human rights are varying perceptions and social practices that force individuals to make trade-offs between environmental protection and individual choice. William Blackstone (1974:28) discusses the implications of freedom in our society: Freedom is, of course, one of our basic values, and few would deny that excessive state control of human action is to be avoided. But such restrictions


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on individual freedom now appear to be necessary in the interest of overall human welfare and the rights and freedoms of all men. Even John Locke with his stress on freedom as an inalienable right recognized that this right must be construed so that it is consistent with the equal right to freedom of others. The whole point of the state is to restrict unlicensed freedom and to provide the conditions for equality of rights for all.

For example, will an individual drive her car or walk to the market? Driving the car entails a measure of pollution that can be avoided by walking. However, if the individual chooses to walk to the store she is giving up the freedom and convenience of driving an automobile. Furthermore, to what extent does driving one single automobile, on one single occasion, positively affect the environment? It will definitely have some effect, but given the thousands of other cars being operated, will it make a difference in the environmental quality that is significant enough to encourage the individual to walk rather than drive? The most frequently cited grounds for acceptance of the right to a livable environmental is probably medical. Few can deny the carcinogenic nature of many substances currently in use or the hazardous effects of the numerous environmental pollutants to which we are subject on a daily basis. What constitutes a toxicogenic environment can arguably include forms of environmental degradation such as noise pollution from airports as well as more severe environmental degradation of water sources and air quality. As there are serious health risks from environmental degradation, can linkages be made to associate levels of environmental quality with the human right to life? Regardless of the level of development, social imperatives, and cultural differences, environmental problems are difficult to solve within any nation. These problems only intensify at the international level as states are largely unwilling to substantially limit their sovereignty over their domestic affairs for the benefit of the global environment. The human rights forum may provide an additional option for gaining international consensus to act and solve these problems. Human Rights and Article 6(1) Given that no international codification exists accepting a measure of environmental quality as a human right on its own, to what extent is it possible to link environmental quality with the already codified and accepted right to life? In general, Articles under the International Covenant on Civil and Political Rights have been construed broadly in interpretation, especially concerning rights which allow no derogation by state parties under the terms of the Covenant. The provisions within Article 6(1) for the right to life have been interpreted and applied to mean



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a quality of life beyond bare survival. Although nothing specific has been interpreted by Contracting Parties or by the Human Rights Committee to incorporate measures of environmental quality into the right to life, many states and individuals have asserted and extrapolated that there is an inexorable link between environmental quality and the right to life. Although murder is recognized as a violation of an international human right to life, national and international communities have not yet recognized that air, water, or soil pollutants also potentially violate this right. These can also jeopardize an individual’s right to life. In the United States murders average about nine per 100,000 annually, and total approximately 22,000 each year. However startling the statistic, even greater numbers of persons die prematurely from preventable, pollution-induced diseases, although these deaths are not statistically accounted for as murders. According to the U.S. Office of Technology Assessment, up to 90 percent of all cancers—accounting for 500,000 deaths each year in the United States—are “environmentally induced and theoretically preventable.” Worldwide, the World Health Organization (WHO) and the United Nations Environment Programme (UNEP) estimated in 1990 that 625 million people are exposed to unhealthy levels of sulfur dioxide and more than a billion persons breathe unhealthy levels of particulates (Schrader-Frechette, 1991). Although no legal international human right to the environment exists, a strong linkage can be made between environmental quality and human life. Since the Human Rights Committee and the Contracting Parties to the Covenant have indicated that Article 6(1)’s protection of the right to life means more than just mere existence, can an individual’s right to life be violated if a state fails to provide its citizens at least a certain minimum level of quality of water, air, and soil? If environmental quality can be effectively linked with the obligations under Article 6(1) of the Covenant, then individuals whose nations are contracting parties to the Covenant and the Optional Protocol have the option of pursuing international redress through the Human Rights Committee by submitting claims alleging a violation of the human right to life.

Bringing Individual Claims before the Human Rights Committee Given that the Human Rights Committee (hereinafter referred to as the Committee) has examined one environmental problem in its operation, and did not deny the linkage between environmental degradation and the right to life as protected under Article 6(1), what circumstances would be necessary and what process would an individual have to pursue in order to bring a claim to the Committee?


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The formal terms of bringing claims to the Committee are outlined in the Optional Protocol to the Covenant. Article 1 of the Optional Protocol outlines the duties of the Contracting Parties with respect to the process and procedure of allowing individuals to submit claims. Article 1 states: “A State Party to the Covenant that becomes a party to the present Protocol recognizes the competence of the Committee to receive and consider communication from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a party to the present Protocol.” Although the Committee is unique in that individuals can bring claims for human rights violations under the Optional Protocol, this right is limited only to those individuals belonging to nations which are contracting parties to both the Covenant and the Optional Protocol. This is a crucial limitation of using the Human Rights Committee as a forum for individual international environmental claims. Article 2 of the Optional Protocol outlines the general ability of individuals to submit a claim to the Committee in the form of a written communication after all available domestic remedies have been exhausted. The text of Article 2 states: “Subject to the provisions of article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted domestic remedies may submit a written communication to the Committee for consideration.” Three fundamental criteria must be met before an individual can submit a claim to the Committee for deliberation. First, the submission must contain the relevant violation of the Covenant. The article allegedly violated must be cited directly and the facts must demonstrate a clear violation by the state. In the case of environmental degradation, the clearest link with a human right as codified under the Covenant is the text of Article 6(1) professing that every human being has the inherent right to life and that this right is protected by law. Second, the individual claim must prove that the person or group bringing the claim has exhausted domestic remedies to the fullest extent possible. In general, the Committee has interpreted the domestic remedies qualification fairly narrowly in order to prevent individuals from using the Committee as a primary means of seeking redress for human rights violations. There are cases in which the Committee has been satisfied that all effective or available domestic remedies have been exhausted, but this requirement is not usually waived. What the Committee looks at, in terms of exhaustion of domestic remedies, is whether the individual has sought redress within his or her own country and then whether or not the outcome of this effort has failed to be addressed significantly by the government involved in the claim.



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Finally, the submission must be in the form of a written communication to the Committee. The Committee has not specifically adopted or required a particular form for the submission of communications, but in general a strong application should contain the following pieces of information: • Subject matter of claim • Procedural issues such as standing of author, exhaustion of domestic remedies, reasons why local remedies were ineffective • Substantive issues • Article or Articles of the Covenant relevant to the communication • Article or Articles of the Optional Protocol under which communication is submitted, usually involving Articles 1, 2, and Article 5(2)5 It is important to recognize that claims by an individual are not necessarily limited to cases in which a single individual was harmed. An individual can bring a claim on behalf of a group of individuals as long as it can be proven that the individual bringing the claim has standing to represent the interests of the group on behalf of whom the individual is submitting the claim.

Limitations and Benefits Although the structure of the Human Rights Committee enables individuals to bring claims upon their own behalf, another victim’s behalf, or on the behalf of a group of individuals the procedure has its limitations. The most important limitation is that while Contracting Parties to the Covenant are not required to ratify the Optional Protocol, submissions are limited to individuals whose countries have ratified both the Covenant and the Optional Protocol. As of 31 January 1993, there were 67 countries which had ratified both.6 Because it is optional for parties to sign and ratify the Protocol, it may also be denounced by any Contracting Party at any time through written notification addressed to the secretary general of the United Nations. Denunciation takes effect three months after the date of receipt of the notification. Although there is no denunciation or prejudice to the continued application of the provisions within the Covenant, the State Party cannot denounce submissions that were submitted under Article 2 prior to the effective date of denunciation.7 Another limitation is that the Committee requires that submissions must not be pursued through other available international mechanisms that involve human rights abuses and violations. The extent to which this is a limitation depends upon what type of claims the submission makes and what type of redress the applicant


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seeks. Other international human rights mechanisms do allow claims to be pursued in multiple forums, but these other forums are generally available to states and not to individuals. The Committee also restricts the types of claims it can receive to those which demonstrate a violation of the rights codified within the Covenant. This means that, for example, rights under other Human Rights agreements such as the International Covenant on Economic, Social, and Cultural Rights are not protected or addressed by the Human Rights Committee. Submissions are also limited to being filed against an individual’s own nation. For example, an individual of a nation that is a contracting party under the Covenant and the Optional Protocol could only bring a claim for a human rights violation by its own government, not by the government of another nation that satisfies the requirements for submitting a claim. This is particularly important in terms of bringing an environmental claim regarding a transboundary issue such as industrial air pollution. Under the terms of the Committee, an individual could not charge another country for a breach of a human right under the Covenant. Such a submission must come from a national within the polluting country itself. Finally, submitting a communication to the Committee is a long and often arduous process that might not lead to a significant outcome. Article 6 of the Optional Protocol states that, “the Committee shall include in its annual report under article 45 of the Covenant a summary of its activities under the present Protocol.” The Committee is limited to presenting “views” on each accepted submission which are published annually and to encouraging contracting parties to comply with its recommendations for action. Although this forum might be the only one available for a particular individual or group, the most significant outcome that could occur as a result of a submission is that a Contracting Party would accept and implement the “views” and recommendations of the Committee. The minimum result of any accepted submission is increased communication and interaction with the state contracting party and publication of the Committee’s recommendations and findings. Despite its limitations, the procedures and remedies available do present considerable potential benefits for individuals suffering from human rights violations. The Committee is unique in that it does not limit submissions and complaints to states but allows individuals and groups to bring claims against the actions of their own governments under certain conditions. Although there are limitations upon the claims of applicants, this is still an important forum for individuals to seek redress for human rights violations at the international level. For example, the International Court of Justice does not offer the same ability for individuals to bring claims against their own government.8 In addition, even though the Committee renders only views, these views are not devoid of influence on the states involved in the claim. Given that only



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individuals from states that have ratified both the Optional Protocol and the Covenant can submit communications to the Committee, it is likely that countries that have ratified both also have greater willingness to address human rights violations and are concerned about their international human rights record. The procedure for individual dispute resolution under the Committee is viewed as substantially more friendly than other international human rights mechanisms available under the international legal order, and can lead to a more practical and effective conclusion of human rights disputes. A final benefit and strength of submitting a claim to the Committee is that it publishes its findings, deliberations, and reports annually. The publication includes Committee views as well as submissions accepted and denied for consideration. Even if a claim is not accepted before the Committee, the application is still printed in the annual publication along with the reasons and rationale for its inadmissibility. Political pressure is a substantial enforcement mechanism at the international level, and mere submission can exert enough influence to encourage a nation to respond to a claim brought before the Committee. Although it is tempting to make comparisons to domestic law enforcement mechanisms, it is not a relevant comparison at the international level due to the structure of the international legal order. State sovereignty can only be limited at the international level by consent through treaty. The Optional Protocol affords considerable freedom and a unique forum for individuals and groups to espouse claims against their country for human rights violations. Although the opportunity is constrained by many limitations, the potential benefits available are nonetheless significant.

Linking Environmental Quality and the Right to Life If the environment is considered to be a fundamental part of the human right to life, a right entails a correlative duty or obligation on the part of someone or some group to accord an individual a certain mode of treatment or to act in a certain way in a legal sense. Since human rights are codified laws, they thus entail a duty by contracting parties to uphold and protect the rights within the international treaties that they ratify. Therefore, if it can be established that environmental quality is fundamental to the right to life, then contracting parties have a duty to ensure environmental quality with their obligations under treaty. There are various arguments espousing a link between the environment and human rights. Blackstone (1974) argues that every person has a right to a livable environment because it is essential for one to fulfill one’s human capacities. He supports his assertion by arguing that, “given the danger to our environment today


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and hence the danger to the very possibility of human existence, access to a livable environment must be conceived as a right which imposes upon everyone a correlative moral obligation to respect.” In making this assertion, Blackstone fails to establish two fundamental criteria. First, he does not define what he means by the term livable. Livable, according to what standards? Imposed by whom? Determined and enforced by which individual, state, or institution? By failing to establish effective criteria to define what is, in fact, a livable environment, it is unclear how this would directly transpose to a human right. This ambiguity is all the more important because one of the general difficulties with human rights has been the difficulty in determining what constitutes a violation. However, it is quite possible that Blackstone uses the term livable in order to be consistent with traditional codifications of rights in order to try to establish some qualification upon the term “environment” to mean more than just the existence of a habitat to survive. Livable could be determined to constitute a certain level of environmental quality which sustains life. The more important problem with Blackstone’s analysis, for the purpose of this study, is his emphasis on a livable environment as a right on its own merits, rather than coupling it with existing human rights. It is important to note that Blackstone’s analysis was written in 1974, when human rights were just ending the codification and recognition phase in the international arena. It is not clear that codifying a principle asserting a new human right to a livable or clean environment is the best solution to incorporating environmental imperatives at either the national or international level. This chapter argues that in order to maximize the linkage of human rights to environmental quality and facilitate change towards environmental conditions for individuals, the mechanisms already exist at the international level for environmental quality to be linked with the fundamental human right to life. The most plausible link to make with the human right to life exists in the argument that a level of environmental quality is essential for life to exist. This means that without a certain level of water, air, and soil quality, it is not possible for life to exist. Given this line of argument, a state would be in violation of the right to life in Article 6(1) of the Covenant if it had ratified the treaty and did not maintain a certain level of clean air, water, and soil quality. What might this quality level be? If we left the international legal order to solve the problem, the specific qualifications would develop over time as trends on a case-by-case basis. Quality could also be measured by using traditional scientific principles and evolving indicators of environmental quality.9 Making the Link in Practice Since the creation of the Human Rights Committee there has only been one case in which an individual attempted to link environmental quality and the substantive



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issues of the right to life as protected under Article 6(1) of the Covenant. The case was declared inadmissible by the Committee on the grounds that the applicant had not exhausted available domestic remedies. In this case, the applicant herself admitted that she had not exhausted domestic remedies within her country but attempted to circumvent the requirement due to the fact that the issue at hand was an immediate threat to the life of present and future generations within the area.10 The communication was brought by a Canadian citizen on behalf of present and future generations of Port Hope, Ontario, Canada on 11 April 1980. From 1945 to 1953, Eldorado Nuclear, a Federal Crown Corporation and Canada’s only radium and uranium refinery, disposed of its nuclear waste in dumpsites within the confines of Port Hope. In 1975, large-scale pollution of residences and other buildings was discovered as a result of the use of waste material from the refinery as fill or building material for houses. The Canadian government initiated a cleaning operation and from 1976 to 1980 the excavated waste material from approximately 400 locations was removed and relocated elsewhere. In the meantime, approximately 200,000 tons of radioactive waste remain in Port Hope and are being stored, in the continuing cleanup process, in eight temporary disposal sites near or directly beside residences. The Human Rights Committee was requested to urge the Canadian Government to remove all radioactive waste from Port Hope to a permanent, properly managed, dumpsite away from human habitation. Although the communication was declared inadmissible to the Human Rights Committee on 27 October 1982, it is important to note that the reason it was deemed inadmissible was that the applicant had failed to exhaust domestic remedies. It is significant to note that the submission report stated that the author of the communication had standing to submit the communication both on her own behalf and also on behalf of those residents of Port Hope who have specifically authorized her to do so. However, the question of whether or not she could have espoused a claim for “future generations” remains unresolved and subject to consideration. An important distinction to make within this case is that the right to life has traditionally been espoused to protect individuals from losing their lives at the hands of government-affiliated individuals. When the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights were originally drafted, environmental concerns were not on the international agenda. The fundamental focus was to codify as many general principles as could be agreed upon to afford as much protection for individuals as possible at the international level. As human rights began to take root in international society and gain acceptance through codification and treaties entering into force, human rights continued to be expanded and codified to include such protections as the right to rest and leisure, including reasonable limitation of working hours and periodic


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holidays with pay.11 There have been some efforts to include the environment as a human right, but to date there exist no internationally accepted codifications recognizing the environment or a certain measure of environmental quality as a human right. Since the submission was declared inadmissible, a larger issue still looms unresolved: the Committee was not required to determine whether poor environmental quality was in fact inexorably linked to the internationally recognized and codified human right to life. Given that there exists no internationally accepted or codified principle espousing a measure of environmental quality as a human right, to what extent can it be effectively linked with the right to life? Recent International Developments Although environmental concerns were not originally codified or linked with human rights, international recognition of linkages between environmental quality and human rights has increased considerably over time. On 24 January 1991, the United Nations General Assembly passed Resolution 1990/41 (hereinafter referred to as the Resolution) on the need to ensure a healthy environment for the well-being of individuals. In terms of a source of international law, General Assembly resolutions are not binding upon states. Although not as tenable as an international treaty, General Assembly Resolutions are recognized as general principles and as indications of international political support. The Resolution contains four main elements concerning the need to ensure a healthy environment for the well-being of individuals, including the statements that the General Assembly: • Recognizes that all individuals are entitled to live in an environment adequate for their health and well-being • Calls upon Member States and intergovernmental and nongovernmental organizations dealing with environmental questions to enhance their efforts towards ensuring a better and healthier environment • Encourages the Commission on Human Rights, with the assistance of its SubCommission on Prevention of Discrimination and Protection of Minorities, to continue studying the problems of the environment and its relation to human rights, with a view to submitting to the Preparatory Committee of the United Nation Conference on Environment and Development, through the Economic and Social Council, a report on the progress made on the matter • Believes that appropriate organs of the United Nations, within their respective competencies, should pursue active efforts in seeking to promote a better and healthier environment12



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Aside from these prescriptions, the Resolution also recognizes a linkage between environmental quality and human rights by stating that “a better and healthier environment can help contribute to the full enjoyment of human rights by all,” and recognizing “the fact that increasing environmental degradation could endanger the very basis of life.” This indicates the beginnings of a recognizable linkage between environmental quality and the protection of human rights. Although the right to life is not directly discussed within the resolution, the linkage between environmental quality and the basis of life seem analogous. In decision 1989/108 dated 31 August 1989 the Sub-Commission on Prevention of Discrimination and Protection of Minorities (hereinafter referred to as the Sub-Commission) asked Fatma Ksentini to prepare, without financial implication, a concise note setting forth methods by which a study could be made of the problem of the environment and its relation to human rights. The appointment of Ksentini as a Special Rapporteur marks the first time that the Sub-Commission has considered environmental problems as a whole and in relation to human rights. In her report (Ksentini, 1990), presented on 3 August 1990, she outlined the emergence of a right to the environment, suggested potential topics for the study, and presented her own recommendations. One suggested topic for investigation was the link between Article 6(1) of the Covenant and environmental quality. Ksentini (1990) asserts that environmental problems have almost exclusively been considered from the standpoint of the pollution in industrialized societies, but acknowledgment of a link between the environment and human rights was fostered by an awareness of the global, complex, and multidimensional nature of environmental problems. Her report also moves beyond merely linking environmental quality to human rights to assert that the notion of a right to a decent environment is emerging. She cites the Stockholm Declaration of 16 June 1972 as a fundamental recognition of the interrelationship between the environment, humans and their basic rights, and the right to life itself.13 The report also includes similar references from the African Charter on Human and People’s Rights and activities under organizations such as the United Nations Environmental Protection Agency (UNEP), the World Health Organization (WHO), the International Labor Organization (ILO), and so on. However, no internationally accepted treaty codifying the right to a healthy environment as a human right exists; these developments only set a foundation for such a right. The report also addressed the strong possibility of linking a right to a healthy environment to existing human rights. The fundamental problem facing the linkage of environmental quality to other human rights is agreement on a definition of environmental rights and equality at the international level. Furthermore, her report illustrates that however internationally recognized the link may be, it is


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presently without reference to a series of collaborative objectives involving the idea of environmental conservation and protection of fundamental human rights. Concerning this linkage, the report suggests that the study focus on highlighting the relationship between environmental problems and human rights issues.14 It suggests an examination of the aspects of human rights violations as causes of, or factors in, the deterioration of the environment. More importantly for the purposes of this discussion, Ksentini (1990) suggests the following: “The relationship between the environment and human rights may also be considered by examining the effects of environmental degradation on the enjoyment of human rights. . . . Particular attention could be focused on the right to life, not only on account of its fundamental nature as the source of all other human rights, but also on account of its extreme vulnerability to ecological hazards.”15 The appointment of the Special Rapporteur coupled with the United Nations General Assembly Resolution 1990/41 are significant steps at the international level linking environmental quality with established human rights. Although the particular measure of environmental quality necessary to be linked to human rights violations is not being discussed at this time, it is important to recognize that it is unlikely that a specific definition or measure of environmental human rights would be agreed upon internationally through states at the United Nations. It has been the tradition of states to codify and agree on general principles and leave specific qualifications to be defined on a case-by-case basis. This practice would be consistent with the use of the Human Rights Committee as a forum for international environmental claims. By linking a measure of environmental quality with the human right to life, the claim could be brought against a Contracting Party by an individual; the merits of the claim could be decided by the Committee on a case-by-case basis. Over time, certain standards would likely develop to determine some type of threshold of environmental degradation that would breach the human right to life. Until standards are reached, linking environmental quality to the existing human right to life can enable individuals in certain situations to bring a claim against their government for degradation of the quality of their environment.

Using the Available Provisions Environmental quality has become an increasingly prominent concern for the future at both the national and international level. However, environmental issues were not on the international agenda when human rights treaties were being negotiated and are thereby not explicitly included therein. Although there may not



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presently exist the motivation or international will to codify or amend international human rights treaties to include a certain measure of environmental quality as a fundamental human right, the environmental movement has gained enough prominence to encourage states to begin to impose limits on their sovereignty in order to achieve certain levels of environmental protection. It is possible that instead of making new amendments or changes to international human rights treaties the international community only needs to recognize that the inherent human right to life cannot exist without certain measures of environmental quality. The Human Rights Committee has only been faced with one test case that made a link between environmental quality and the human right to life. While the communication was declared inadmissible on the grounds that the applicant had not exhausted local remedies, the Committee went out of its way to specifically point out that the applicant had standing to bring the claim to the Committee. This opens the potential for individuals whose nations have ratified the Covenant and the Optional Protocol to pursue claims against their nation with regard to environmental protection as a fundamental right to life. Rather than push to amend present international human rights conventions to include environmental quality as a human right, individuals can seek to publicize and demonstrate the demand for new international institutional structures by using the Human Rights Committee as a fundamental forum for pursuing environmental claims at the international level. If the Committee is besieged by complaints concerning environmental degradation as a violation of the human right to life, it might demonstrate to Contracting Parties and to the international arena that there is a demand for environmental dispute resolution at the international level. This could eventually encourage states to recognize the need to develop an international environmental tribunal to address environmental claims. The key is to work within the presently available mechanisms, institution, and international legal order to demonstrate the demand for issues of environmental quality to be addressed at the international level. The Committee presently contains the structure essential for a substantial number of international environmental claims to be brought as violations of the human right to life. Although far from optimal, the Committee could be a major step towards the incorporation of environmental equality into the realm of human rights protections and the eventual development of an international environmental tribunal. The following subsection uses an actual example to highlight both the potential and the limitations of using existing mechanisms to forge a link between environmental quality and human rights.


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From Theory to Practice: A Case Study When the students at the local primary school begin to cough uncontrollably, they are sent home. They are also dismissed early when their sores spread and fester, when they begin to faint in the classroom, when they lose clumps of hair, and when the stinging in their eyes makes it impossible to read. As they wander home, they pass the towering stacks of the government owned and operated cement plant, their steps leave prints in the thick colored dust of unburned calcium and cement that shrouds the trees, houses, crops, soil, and their houses. (Hedges, 1993).

Unfortunately, this is not a hypothetical example, but an excerpt from a New York Times article which recounts a harrowing tale of environmental degradation in Egypt.16 The school is the Kafr al-Ilw primary school, the cement factory is the Portland Helwan Cement Company, and the schoolchildren face this scenario daily. Like many developing countries, Egypt is now faced with the tremendous environmental damage resulting from the huge state industries that pump pollutants into the air and release chemicals and waste into its primary water source, in this case the Nile River. Why hasn’t the Portland Helwan Cement Company been forced to maintain some measure of environmental quality? There exist, in fact, many relevant environmental laws in Egypt; yet the 67 existing statutes remain dormant and unenforced. The fundamental reason is that this company and most of the other heavy industry in Egypt is owned and managed by the state, which is more often concerned with raising production levels and providing jobs for its citizens than limiting environmental damage. Aside from the immediate concerns in urban areas of rampant air pollution and related health problems, health inspectors and medical practitioners have investigated the effects from the filterless smoke stacks which continue to pump fumes and dust into the air and water supplies. Pleas for assistance by Dr. Salah Abdel Kader, the local health inspector, have gone largely unnoticed. In fact, he dismissed a recent Government report that said that only 29 percent of the some 300,000 who live near the Helwan factories suffered respiratory problems caused by pollutants. Dr. Kader insists that: “About 80 percent of the people here have chronic bronchitis and eye infections and everyone has sores, rashes and hair loss. Babies are born with a condition called pigeon chest and emphysema. By the time people reach the age of 60 they are dead or dying, usually of respiratory failure.” Given this situation, what could be done under international law? This example appears to be ripe for bringing a claim against their government under Article 5(2) of the Optional Protocol to the International Covenant on Civil and



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Political Rights. Conceivably, Dr. Kader could bring a claim against the Egyptian government on behalf of the peoples of Helwan as a violation of Article 6(1)’s right to life as protected under the International Covenant on Civil and Political Rights. He would submit a written petition alleging a violation of Article 6(1) due to the deplorable state of the environment fundamentally caused by the failure of the government to effectively enforce its own environmental legislation and secure a measure of environmental quality compatible with the right to life. After submission of the claim, the Human Rights Committee would be able to examine the admissibility of the claim and possibly begin communications with the Egyptian government to determine the status of the claim. Regardless of whether or not the claim was declared admissible, the submission would be published with the Committee’s annual report. In the best-case scenario, Egypt, the Committee and Dr. Kader would enter into a series of communications. The Committee would render its final view on the matter and make recommendations. These recommendations would have a strong chance of being implemented by the Egyptian government. Unfortunately, this example of environmental degradation also illustrates the limitations of using the Optional Protocol for individuals to bring a claim against their government. While Egypt has ratified the International Covenant for Civil and Political Rights, it has not ratified the Optional Protocol. This mechanism is not available at this point to the citizens of Egypt.

Conclusion Because the International Court of Justice does not have a mandate to adjudicate individual claims under Article 34 of its statute, the Human Rights Committee is the international body that hears them. Article 6(1) of the International Covenant on Civil and Political Rights directly places obligations upon Contracting Parties to protect an individual’s right to life. While environmental issues and imperatives were not on the international agenda during the negotiation and ratification of the Covenant, the definition of the right to life has been construed to mean more than simply not being killed. Given that the Human Rights Committee has interpreted the right to life liberally, a linkage between environmental quality and life can potentially be established. Individuals should use the linkage between environmental quality and the fundamental human right to life to gain access to the mechanisms of the Human Rights Committee and bring international environmental claims against their governments for failing to ensure environmental quality compatible with human life. Pursuing an international environmental claim through the Human Rights


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Committee gives individuals an alternative forum for environmental claims if domestic remedies fail to solve the dispute. Instead of being limited to domestic forums and judicial institutions which might not encourage or require a government to secure and enforce a measure of environmental quality for its nationals, linking environmental quality to the right to life allows access of individuals to a prominent and influential international forum like the Human Rights Committee. Although not perfect or all-encompassing in its provisions or its membership, it is another potential arena that should be pursued to effect change, encourage government compliance to treaty obligations, take advantage of international political pressure, and publicize levels of environmental quality which are incompatible with the international human right to life.

Notes 1. Sources of law are determined by the Statute of the International Court of Justice. Article 38 is the primary section of the statute which deals with the application of law at the international level. The Article states: “1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aqua et Bonn, if the parties agree thereto.” 2. The International Covenant on Civil and Political Rights was adopted December 19, 1966, and entered into force on March 23, 1976. 3. The derogation exception is found within Article 4(2) of the Covenant on Civil and Political Rights. The clause reads as follows: “(2) No derogation from articles 6,7,8 (paragraphs 1 and 2), 11, 15, 16, and 18 may be made under this provision.” This is an exception to Article 4(1) which states: “(1) In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” 4. The Optional Protocol creates the Human Rights Committee under the Covenant to receive, hear, and render “views” on communications submitted to the Committee under Article 2 of the Optional Protocol which states: “Subject to the provisions of Article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.”



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5. Article 5(2) of the Optional Protocol states: “The Committee shall not consider any communication from an individual unless it has ascertained that: (a) The same matter is not being examined under another procedure of international investigation or settlement; (b) The individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged.” 6. The following countries have ratified both the International Covenant on Civil and Political Rights and the Optional Protocol: Algeria, Angola, Argentina, Australia, Barbados, Belarus, Benin, Bolivia, Bulgaria, Cameroon, Canada, Central African Republic, Chile, Colombia, Congo, Costa Rica, Cyprus, Denmark, Dominican Republic, Ecuador, Equatorial Guinea, Estonia, Finland, France, Gambia, Hungary, Iceland, Ireland, Italy, Jamaica, Libyan Arab Jamahiriya, Lithuania, Luxembourg, Madagascar, Malta, Mauritius, Mongolia, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Norway, Panama, Peru, Philippines, Poland, Portugal, Republic of Korea, Russian Federation, Saint Vincent & Grenadines, San Marino, Senegal, Seychelles, Somalia, Spain, Sudan, Surinam, Sweden, Togo, Trinidad and Tobago, Ukraine, Uruguay, Venezuela, Zaire, and Zambia. The United States is a party to the International Covenant on Civil and Political Rights, but has not ratified the Optional Protocol. 7. These requirements are illustrated under Article 12 of the Optional Protocol. 8. Article 34(1) of the Statute of the International Court of Justice provides that “only states may be parties in cases before the Court.” 9. In the case of soil or land pollution, this might be the level that could continue to sustain crops or could still be used for the purpose that it has been used for historically. This would mean that levels could, in fact, vary according to traditional patterns of use. For example, a section of land that has been used traditionally as farmland would likely have a higher quality threshold to continue production than would commercial property used within major cities. Although this should not compromise the use of the land in terms of environmental imperatives in the first place, it does address the fact that there could be variable levels of necessary quality and resulting protection for land prior to violating the protections under the right to life. However, this may not be an acceptable or optimal solution for problems of air and water pollution. 10. This section relies heavily on details of this case as reported in the Annual Report of the Human Rights Committee, Communication No. 67/1980 at 20. 11. This principle is codified in Article 24 of the Universal Declaration of Human Rights. 12. See U.N. General Assembly document A/RES/45/94 on 24 January 1991. 13. The Stockholm Declaration was produced by the 1972 United Nations Conference on the Human Environment, held at Stockholm. 14. In terms of establishing a link between measures of environmental quality and international human rights, the report recognizes that international human rights agreements do not include specific environmental provisions, but continues to state that “many articles (from international human rights agreements) could be applied from an ecological angle.” Article 6(1) of the Covenant is included in her listing of relevant articles of international instruments suggested for further investigation. 15. The comment from Professor Galicki of Poland quoted at the head of this chapter was made in support of this particular linkage. It was of great importance to Fatma Ksentini’s final report and was footnoted in it. 16. This section relies for its information and quotations on Hedges (1993).


Y CHAPTER EIGHTEEN

THE POTENTIAL FOR ENVIRONMENTAL CONTRIBUTIONS TO PEACE Maria Fariello Laux

his chapter will investigate whether there is room for environmental cooperation among enemies. The text first lays out the main arguments on the linkage between the environment and security and defines the premises for an environmental contribution to peace. Next, the chapter develops three fledgling cases from different continents where environmental issues are being promoted despite conflicts that inhibit communication between the conflicting parties. From these cases, the chapter will draw lessons on the fundamental role of the international community and how it can assist in confidence building between conflicting parties through the creation of channels of communication on subjects of mutual environmental concern. Then, the ways in which international organizations, both official and unofficial, can help capitalize on the untapped potential for cooperation will be considered. The final section outlines the key elements that can aid environmental contributions in conflict resolution.

T

The Problem There is substantial evidence that the end of the Cold War has not brought about any significant change in the numbers of armed conflicts littering the planet (Wallensteen and Sollenberg, 1998 ). It can be assumed that strategies to resolve violent conflicts will continue to be a challenge in the future. While armed conflicts 414


The Potential for Environmental Contributions to Peace

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have plagued humanity for millennia, environmental degradation is a more recent problem. These two problems, armed conflict and environmental degradation, are both the result of human activity. Given their magnitude, this chapter will not attempt to address either problem in its entirety. The argument of this chapter is that when an environmental concern affects two (or more) conflicting parties, it can serve as a subject of discussion external to the conflict but with the potential to be a foundational element for resolving that conflict. If successful, a forum for environmental problem resolution can lead to the mitigation of other issues as well.

Typology of Armed Conflict To examine the possibilities for using an environmental issue as a confidencebuilding measure for creating trust, it is necessary to establish a framework within which conflicts can be analyzed. The framework should include three elements: level of violence, international status of the conflict, and timing. Level of Conflict The most common categories of violent conflicts, as described by scholars of armed conflict, are minor armed conflict, intermediate armed conflict, and war. The distinction lies in the death tolls. A minor armed conflict is defined as one in which 25 people have been killed over the course of a year and at least one of the parties is a state. An intermediate armed conflict is one in which there have been over 1000 deaths over the course of the conflict with at least 25 deaths within a given year. War describes a conflict with 1000 deaths within a year. The conflicts addressed in this chapter are those in which a condition of mutual antagonism exists between two parties who have engaged in various levels of armed conflict. The polarization caused or aggravated by armed conflict prevents cooperation and sometimes communication between the two sides. Such situations are often the subject of international negotiations to resolve the dispute and normalize the relationship between the disputants. It is within such a context that the inclusion of environmental considerations is feasible. These cases, however, require a full understanding of the conflictual context, since the risk of rekindling the armed conflict is ever present. International Status of the Conflict While for humanitarian purposes the question of international versus internal armed conflicts is irrelevant, the issue is unavoidable in international law and


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greatly conditions the viability of conciliatory action, especially by third parties. With regard to environmental issues that could serve as common ground for conflicting parties, the discussion of possibilities will therefore be limited to armed conflicts of an “international” nature, in which the conflict is between two “states,” based on factual evidence, not international recognition. Timing Finally, as with any proposed confidence-building measure, the fighting in a conflict must have abated for any steps towards peace to occur. Conflicts that may benefit from the introduction of an environmental issue must have reached a stalemate. Only if a conflict has sufficiently abated is an opening for dialogue possible.

Types of Environmental Issues When examining environmental issues within the context of armed conflict, several important distinctions of how environmental issues relate to conflicts need clarification. The first distinction made by scholars of environmental security is the dichotomy between renewable and nonrenewable environmental resources. Renewable resources include cropland, forests, fish, and fresh water. Examples of nonrenewables are fossil fuels and iron ore (Homer-Dixon, 1996). If a resource is an integral part of the conflict it is unlikely to be an acceptable subject of discussion among enemies. The second key distinction between types of environmental concerns is the difference between “neutral or perfunctory” versus “vital” environmental concerns. Both terms describe the relationship of the resource to the state or party involved in the conflict. Hence, a neutral environmental issue is one having little or no strategic value but significant ecological value to the existence of the disputing party. Some environmental issues might be essential to, or perceived to be essential to, the life of a country whether to the people’s subsistence, the country’s economic life or the identity of the nation. If an environmental concern is key to national security, it should also be excluded as a possible topic. While the possibilities to solve each conflict will depend on myriad political factors, lulls in armed conflict provide many conflict resolution opportunities that can also be advanced through joint environmental problem solving, when the environmental issue is “neutral,” that is, not integral to the conflict. The existing theoretical information on the causal links between the environment and armed conflict can greatly aid in the identification of the distinction between neutral and vital environmental concerns. Recognizing



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environmental causes of conflict is useful in identifying less-sensitive environmental issues that are possible subjects of discussion. For the purpose of commencing a dialogue on environmental concerns between warring states, methods of identifying neutral environmental issues must be explored. Ultimately, only a case-bycase assessment can generate definite answers, but the study of previous cases can provide the first stepping stones. By limiting the scope of relevant conflicts to those which are international and at a stalemate, and to those sharing an environmental issue which is not a component of the conflict nor of vital interest to the parties, a basis for mutual problem solving can be developed.

Links Between Conflicts and the Environment Literature on the connection between armed conflict and the environment centers around the question of whether environmental degradation is a concern for national security. This complex discourse is ultimately determined by each author’s definition of security. However, certain aspects of the theories equating environmental concerns with security issues can help determine the advantages of introducing neutral environmental concerns as a topic of mutual interest to conflicting parties. While some analysts would exclude environmental degradation as a security concern, there is an increasing consensus that nonconventional security threats exist. This is relevant to our discussion since common threats can become unifying factors. The relationship between natural resource scarcity and conflict has been analyzed in some depth. This examination can aid in the identification of environmental concerns which are sufficiently neutral to serve as points of reconciliation by eliminating those concerns which are a part of the actual conflict. Arthur Westing of the Stockholm International Peace Research Institute and Thomas Homer-Dixon of the University of Toronto, among others, have further examined the relationship of renewable and nonrenewable resources as they pertain to armed conflicts (Westing, 1986). Since many environmental resources are directly linked to human existence, many of them are of vital interest and could not form the basis from which to begin to build trust in an antagonistic situation. However, ample room remains in the field of environmental protection to allow neutral points of mutual interest to serve as a topic for confidence building. Peter Haas’s theory of the epistemic community (1990) opens a window of opportunity for implementing the prescriptive possibilities of environmental problem solving across conflicting borders. This theory and its role in the Med Plan to clean up the Mediterranean Sea merits attention since it successfully united opposing political interests. It was one of the first assessments of the environmental


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potential for cooperation between warring parties. As this theory is useful in extracting components key to the discussion, it is instructive to address the conclusions and criticisms of the Med Plan. The complexity of violent conflicts makes it impossible to single out universal causal variables. Whether one believes that environmental concerns are comparable to national security concerns or not, it is difficult, if not impossible, to argue that environmental interests in the past have not been important considerations in armed conflicts. It follows that if the environment is often part of the problem it could also be part of the solution. The following section discusses three cases in which an environmental solution was found or the possibility exists to do so. On October 26, 1998, Ecuador and Peru concluded a peace over a disputed border. Part of the final peace agreement included a binational peace park on the sight of the dispute. This is the first international implementation of an environmental solution to a conflict. This breakthrough will be assessed below, along with a similar initiative on the Korean Peninsula that has not yet acquired sufficient political support for its implementation. Finally, the conflict in Cyprus is used as a background for a proposal to expand the types of environmental concern which can contribute to problem solving.

Peru-Ecuador The Peace Treaty recently negotiated and signed between Ecuador and Peru has settled a border dispute dating back to the independence of these nations from colonialism. Not only did the conflict result in periodic battles fought sporadically over the past 150 years, but it also prevented trade and the normalization of relations, even when fighting between the troops had abated. The general international context of 1942 reflecting the desire of the United States for a united hemisphere lay the foundations for the peace treaty signed in October, 1998. In 1942, however, “the boundary was left undefined in 78 of the 1,675 kilometers of shared border. This lack of definition [was] due to the differing interpretations of a ‘divortium aquarium’ (watershed divide) between the Zamora and Santiago Rivers as stated in the 1942 Protocol of Rio de Janeiro.” For Ecuador, access to this Cordillera del Condor Region meant access to the Amazon, a resource only recently begun to be exploited for its natural wealth. While in the Korean case discussed below the conflict resulted in a “natural reserve” in the form of the demilitarized zone (DMZ), both Peru and Ecuador responded to the dispute by encouraging settlement in the area and locating troops there to demonstrate possession. This has led to rapid population growth in a previously unexplored and pristine zone which continues to have significant ecological value. A rapid assessment of the biodiversity of the disputed area by



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Conservation International has resulted in the discovery of new species of flora and fauna. As regional trade grew in importance, the need for a solution to the conflict increased and politicians began to more seriously consider the mutually beneficial idea of designating the area a nature reserve. The exact origins of the proposal for a peace park are difficult to trace, but the idea clearly capitalizes on the unique biological aspects of the territory under dispute. The fact that its preservation could attract tourism is an added economic benefit.1 Despite the intense peace negotiations throughout 1998, the exact demarcation of the 78 kilometers remained unresolved. However, agreement to submit the question to arbitration was reached and the commitment of both sides to create a peace park was attained. While many had hoped for a single jointly administered park, the final result is the establishment of two adjoining but separate parks whose administration will be coordinated. In order to implement the Peace Park agreement the area needs to be de-mined. Thus, a “Bi-national Fund for Peace and Development” has been established whereby international contributions for the creation of the park could be received from any interested donor. The 1942 Rio Protocol was instrumental in creating an international forum within which the guarantor states were able to facilitate negotiations in 1998. The peace negotiations were recently conducted through four commissions that meet in the capitals of the four guarantor states (Argentina, Brazil, Chile, and the United States).2 The Second Commission on “Border Integration” supported and negotiated the Bi-national Fund initiative. The peace process and the intricacies of how it functioned cannot be detailed here but it is important to note that because of the Rio Protocol the role of the guarantor states was firmly established in international law. For over 40 years, it was merely a question of the guarantors exercising their duty.3 When they in fact did so, their role proved to be the catalyst needed for peace and, in this case, the creation of the first bi-national peace reserve. As early as 1991, President Fujimori of Peru officially proposed the idea of a peace park idea. However, prior to political espousal of the initiative, several NGOs4 had advocated for its implementation as a solution to the conflict. In general, environmental solutions are more likely to originate from environmental NGOs whose very mandate stipulates such a function. It is still difficult to obtain the official support without which ideas or projects cannot be implemented.

The Korean Peninsula Since the 1953 Military Armistice Agreement which ended the three-year long Korean War, the Korean peninsula and its people have been divided into two distinct states with little communication. The current policy of the South Korean


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government is one of reconciliation with the North. While some Koreans desire reunification, a more immediately attainable goal may be the normalization of relations. In either case, it is clear that both sides have much to gain by healing the wounds caused by the war. No peace treaty was ever signed, but diplomatic efforts to that end have spanned the last 40 years. Recently, the cooperation agreement between the two sides has included environmental concerns. The stalemate of recent decades has had the positive effect of preserving the environment of the demilitarized zone (DMZ). The challenge is therefore to utilize this positive side effect in resolving the conflict. The DMZ, defined along the Military Demarcation Line established by the 1953 Armistice Agreement, is a 1,000 square km (4 km wide and 250 km long) corridor extending from east to west across the Korean Peninsula. This zone separating the two Koreas has been rigidly enforced by the Military Armistice Commission and has prevented human habitation. Its inaccessibility allowed damaged forests and former farmlands to return to their natural state, providing a unique sanctuary for animals and plants. The DMZ corridor is the only place on the Korean Peninsula where large vestiges of Korea’s biodiversity remain intact, and as in-situ bioreserves the DMZ’s ecosystems are of great importance to conservation efforts in Korea. The biota of the 5 to 20 km buffer zone (Civilian Control Zone) south of the DMZ includes many plants and animals that were considered extirpated (local or population extinction), endangered, or threatened. For example, the DMZ and its buffer zones provide wintering grounds for two of the world’s most endangered birds: the whitenaped crane and red-crowned crane. Since it would be impossible to retain the entire DMZ intact should movement between the two countries be opened, one proposal for a nature reserve would encompass two areas key to species protection (Westing, 1998). One area is a low wetland on the western end of the DMZ and the other a mountainous temperate forest (Westing, 1998). Together the proposed area would comprise 50,000 hectares and 27 percent of the DMZ. Interested parties on the international level are both official and unofficial. In 1991 both UNEP and the Environmental Protection Bureau were parties to the discussions on a peace park and in 1994 South Korea expressed an interest in having either UNEP or UNDP act as mediator (Westing, 1998). An example of unofficial international actors are two U.S.-based NGOs: the International Crane Foundation and the Korea Peace Bioreserves System at Pennsylvania State University. Both organizations have been actively supporting the initiative. Because of the difficult relationship between the two Koreas (as in the case of Ecuador and Peru) internationalization of the issue is the strategy that has been chosen by both the promoters of peace and environmental preservation of the



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DMZ. In fact, to promote preservation a DMZ Forum was devised. The Forum is headed by a Steering Committee (SC) that “consists of the three Executive Committee members, five country representatives (China, Democratic People’s Republic of Korea, Japan, Republic of Korea, and Russia), one development officer, one information and communication officer, and the Executive Secretary. [It] is responsible for administration, fund-raising, coordination, public communication, and publication.” The DMZ Forum is an interesting amalgamation of official and unofficial actors in an international context created to solve what appears to be a bilateral problem. Its first project has involved new channels of communication in the effort “to convene an international forum for scholars, scientists, and experts on conservation and international affairs on Korea’s peace and security . . . to promote and discuss issues involved in the preservation of the DMZ.” While scientists from around the world benefit from the study of the DMZ’s biodiversity, the two Koreas also improve their relationship.

Cyprus The Island of Cyprus is the third largest in the Mediterranean and has always held strategic significance. In 1960, upon independence from Britain, the constitution of the Republic of Cyprus detailed a power-sharing mechanism between the Island’s Turkish and Greek citizens. Unfortunately, this did not work and in 1963 the island was divided with the Turkish citizens in the North and the Greeks in the South. While the Greek government is internationally recognized, the Turkish Republic of Northern Cyprus (TRNC) has control of one third of the island and administers it for its inhabitants. Following violent clashes, the United Nations stationed peacekeeping troops on the island where they have remained to this day. As a result of the conflict the two sides have lived separately for the past 30 years. While the cases of Peru and Ecuador and the two Koreas are well advanced, that of Cyprus is still purely hypothetical. However, it is of particular interest because the neutral environmental factor of international concern is not a designated area but a marine animal. The Island of Cyprus is one of the last remaining breeding grounds for two species of Mediterranean turtles, the loggerhead (Caretta caretta) and the green turtle (Chelonia mydas). International actors with an interest in the Cyprus turtles are numerous. The list of NGOs and university centers which study and work for their protection is extensive. The European Union has funded several projects for the animals’ protection and the turtles have been declared of importance to the European Union. A major


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component of the World Wildlife Fund’s Coastal Zone Management Turkish Mediterranean Coast Program is the study of the green turtle before the growth of tourism in Northern Cyprus eliminates one of the turtle’s last nesting grounds. However, in this case, despite the presence of the larger, more visible environmental NGOs, there is no link with the constant conflict resolution efforts. While scientific studies on the Mediterranean turtles do provide a forum for discussion between the two sides, no link with this environmental channel of communication and peace initiatives has been found.

International Factors Aiding Cooperation Among Enemies Among the commonalties to be found in these three cases, the contributions made by the international community are among the most salient. In all cases the roles played by non-governmental organizations (NGOs) and international organizations such as UNEP and the European Community are pivotal to the maximization of the possibilities for the inclusion of environmental concerns in the confidence-building agendas. In order to proceed with the identification of a prescriptive path by which environmental issues can contribute to the amelioration of a conflictual situation, their role must be further examined. As indicated above, the first step for a common environmental concern to be instrumental in resolving a conflict is that it must be neutral and the conflict must have significantly abated for the issue to be introduced. The cases provide valuable examples of how to bring the question forward and identify the salient factors. While each conflict is unique and must be addressed on a case-by-case basis, international actors, both official and unofficial, are pivotal. It is important to further examine the role of the various actors and why they are essential to successful utilization of neutral environmental concerns. The categorization of international actors is divided between NGOs and international organizations. Although this distinction is not always clear, each category has its distinct advantages. NGOs As demonstrated earlier, NGOs can help capitalize on the potential for environmental cooperation among neighboring enemies. Much academic work has been done on the role of NGOs in international relations in general and within the environmental movement in particular. Several of the ideas that have been developed within this context are of particular significance here. The theory of the epistemic community has been much discussed in relation to armed conflicts and the environment because of the cooperation among



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enemies within the Med Plan. It is possible to link aspects of the theory to the role of the NGOs. As defined by Haas, “an epistemic community is a professional group that believes in the same cause-and-effect relationships, truth tests to assess them, and shares common values. [I]ts members share a common interpretive framework, or ‘consensual knowledge,’ from which they convert such facts, or observations, to policy relevant conclusions. They also share a common vocabulary, common political objectives to which such policies should be addressed, and a common network in which findings are exchanged and shared concerns are formulated” (Haas, 1990). The idea of such a community has sparked much debate. While it may be flawed, it points up the role in international relations of actors who are not state representatives. According to Lawrence Susskind, such actors may retain national affiliation; he writes, “To the extent that transnational coalitions or lobby groups emerge, whether of scientists, business interests, or nongovernmental groups, they tend to form in response to national coalitions that exist and not in advance of them” (1994, p. 74). However, it is still clear that transnational coalitions, or interest groups, whether or not constrained by national loyalties, are key to environmental activism and cannot be overlooked if the environment is to be a piece of the conflict resolution puzzle. Thus, focus on unofficial actors, who are less bound by national loyalties, should be placed in the initial stages of the identification of a neutral environmental problem. In later stages, a forum primarily of official actors but with the inclusion of a select few unofficial participants such as the DMZ Forum is likely to lead to official agreement on the inclusion of an environmental issue. Such fora resemble the epistemic communities discussed by Haas, but would ideally overcome some of their limitations. In order to expand upon the role of environmental non-governmental organizations (ENGOs), further examination of the unofficial international actors is necessary. Let us assume that the transnational interest groups are no more or less powerful in influencing domestic policy than any other interest group. On the international scene however, they do play an appurtenant role. Rather than a community of scientists, environmental non-governmental organizations, which generally include scientists, are acknowledged as players who can contribute to uniting conflicting sides because of their distinct ethos and independence from government. Transboundary communities, with their own distinct cultures, have existed throughout human history. In certain cases that community’s culture may prevail over a national identity (or vice versa) yet in most cases the two cultural identities are juxtaposed. Since all three of the above cases involve external environmental actors (that is ENGOs) acting as both catalysts and unifying actors, certain observations may be drawn.


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Figure 18.1 is a simplified representation of the role of NGOs in international relations. For the purposes of this chapter ENGOs are attributed their own distinct characteristics in several respects. Among these characteristics are, first, the scientific expertise that makes them similar to the epistemic community discussed by Haas and second, their years of involvement in international relations (Princen and Finger, 1994). The arrows between the ENGOs and the nation-states represent a dialogue or channel of communication between the sections of the national population that share environmental concerns. This transboundary community is comprised of the national offices of the ENGO, dedicated environmental activists within the ENGOs network, or merely interested or supportive citizens. The lines do not imply that all the nation-states to which lines are drawn have sections or nationals within the ENGO, but it does signify that some form of communication exists. The lines going from the nation states to the international organization represent the official channels of international representation and thereby the official multilateral forum. The links between the international organization and the ENGO represent relationship between the two organizations that can consist of constant lobbying efforts, joint projects, technical assistance, and influence. Note that within the transboundary environmental community, there may more than one ENGO at work, possibly with be conflicting interests or differences in approach (Wapner, 1996). Within the context of conflict resolution, these organizations can help identify possible common interests with regard to the environment. An example of the role played by an ENGO is that of the Crane Foundation with regard to the

FIGURE 18.1. POSSIBLE CHANNELS OF COMMUNICATION IN TIMES OF AN ABATED CONFLICT.

State

International organization

ENGO

State



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Korean Bi-state Reserve for Peace and Nature. Naturally, countries communicate directly between themselves. Bilateral relations, however, are not the focus of this analysis since both armed conflict and environmental problems are rarely limited to questions that can be addressed bilaterally. Furthermore, existing bilateral relations are severed in times of armed conflict and the aim of peace negotiations is to repair the bilateral link. International Organizations Although it may be unorthodox to address the NGOs before discussing international organizations, the order in no way detracts from their importance to the discussion. NGOs remain unofficial actors while the international organizations provide the official fora for international relations. Thus, the discretion as to which initiatives pass from the unofficial to the official agenda is the prerogative of the concerned authorities of the official actors. The greater the feasibility and added value of an unofficial proposal, the greater the chances of its acceptance by official authorities. The role of international organizations however is still different. Official international organizations5 are in a sense the intermediaries that amalgamate the interests of various international actors and often legitimize efforts in the eyes of the international community. Reference to a specific example illustrates the point. In the case of North Korea, where hypersensitivity to national security issues obstructs even official dialogues and no form of civil society as defined by the West exists, communication is particularly difficult. In such a case, the role of nonofficials would be limited to advising or lobbying the international organization or states which do have a dialogue, however limited, with North Korea. For purposes of conflict resolution, it is therefore crucial that both international organizations and ENGOs accurately assess the appropriateness of linkages even with regard to neutral environmental concerns. Returning to a criticism of the epistemic community, as a “group of mostly appointed bureaucrats who are bound to be reined in if not banned by their governments” if they stray too far from national policy, a contrast can be drawn with both ENGOs and United Nations organizations. The ENGOs do not promote official policy. They advocate their own organizational interests, much like multinationals, although through different channels. Often these interests clash with perceived national interests, yet as organizations they continue to pursue them. This does not suggest that either international organizations or ENGOs are proxies for nation-states, but they do fill a lacuna in international relations. Their “in between” placement may allow them to be impartial intermediaries in the case of the international organizations and effective advocates in the case of ENGOs.


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For instance, while it is natural for U.N. functionaries to retain national loyalties, the very definition of their professional life stipulates that they must also be loyal to the organization and its mandate. It would be unrealistic to suppose that their organizational commitment prevents them from taking their national considerations into account. However, the inclusion of national interests contributes to the feasibility of international policy decisions. All the fledgling cases include players from both official and unofficial sides and it is this synergy which has brought these cases closer than others to succeeding in facilitating an environmental contribution to the conflict’s resolution. Many international organizations are created with the aim of promoting peace among nations. ENGOs on the other hand focus on the environment, yet the existence of a conflict should not deter them from executing their conservation projects in times of conflict. The two NGOs involved in the Korean case have an interest in the peace park initiative for specific reasons. Although the interest of any of the larger ENGOs (such as Greenpeace or the WWF) would be desirable to the cause, their presence does not yet exist. Thus, another essential step in the promotion of environmental solutions to conflicts would be increased awareness among ENGOs themselves.

Steps for Environmental Cooperation on Neutral Issues According to Westing (1986), “The nations of the world interact with each other in their pursuit of external resources—as in all other endeavours via governmental and nongovernmental avenues in a bewildering variety of bilateral and multilateral ways. These international interactions change with time, ranging from cordial and synergetic to the antagonistic and destructive.” The question therefore is how to encourage interaction in cordial and synergistic ways. From the examination of the relationship between the environmental issues and armed conflicts and the role of international actors, a structured outline of five elements that will aid environmental contributions in conflict resolution can be drawn. A Neutral Environmental Issue Through the elimination of any environmental concern that may be directly or indirectly linked to the conflict, it is possible to focus on the identification of environmental problems the solution of which could benefit both parties and harm neither.



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An Abated International Conflict Although a neutral environmental issue can be identified during a conflict, it cannot be put forward as a subject of discussion during battle. Once a hiatus in the fighting occurs, there is scope for the conflicting sides to alter the relationship. Thus, a forum, abetted by international interest in an environmental subject can be proposed. NGO Forum Precisely because of their unofficial role, ENGOs can propose environmental solutions to a conflict without any political risk. Not being restrained by as many political factors as nation states, they have greater flexibility, which facilitates the identification of opportunities for joint environmental problem solving. Furthermore, because of their general expertise they are able to identify environmental concerns that are of general interest to the international or regional community. Support by the State Should international civil society or an international organization convincingly present an environmental question that could feasibly be jointly dealt with in a mutually beneficial manner, official support will follow. This is also a result of the fact that value added to a negotiation is politically beneficial to leaders, especially in cases in which the result is particularly visible. Official Forum In order to officiate the initiative it must pass from an NGO proposal to the official forum within which general peace negotiations are being held. The intermediary step was the official support. Once this has occurred, even if only one of the parties is officially in favor of implementing a possible environmental solution, the initiative can be discussed within the peace process. If it truly adds value, it will be incorporated in the final peace agreement.

Conclusion In cases of armed conflicts, environmental concerns drop to the bottom of the priority list as people struggle to survive in the short term. It is therefore understandable that interests in the long-term consequences of environmental


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degradation diminish. Recent cases are showing that environmental cooperation is feasible within peace negotiations. When asked why the Bi-national Peace Park was accepted as part of the solution to the long-standing dispute between Ecuador and Peru, the Ecuadorian Ambassador to the United States replied, “It was the only solution.” The transnational nature of environmental issues can facilitate international cooperation even in times of conflict. The forum can take the form of a regional, international, or non-governmental organization. If there is no communication between the two sides, then the forum becomes an intermediary relating facts across the border. It cannot be proved that environmental factors, whether renewable resources, territory, or raw materials are the ultimate cause of armed conflicts. However, it is difficult to deny that environmental concerns are often, if not always, a part of the volatile equation leading to battle. Why then can they not also be a component of the solution? The term “environment” covers an array of factors, some less sensitive to nation states than others. If those “neutral” factors can be isolated and enough interested players activated, environmental concerns could well be a part of the resolution rather than the problem.

Notes 1. Net economic benefits are expected as trade commences with the new peace. This is particularly important given that they share the Pacific coastline. 2. “Four Commissions were established, and they have met on the Guarantor countries capitals: Commission I Commerce and Navigation (Buenos Aires, Argentina); Commission II Border Integration (Washington, D.C.); Commission III Setting of Land Border (Brasilia, Brazil); and Commission IV Confidence Building Measures (Santiago, Chile). The first round of sessions of the Commissions started on February 17, 1998. The second round took place on March 30, 1998 to April 2, and significant progress was made. The final round of the Commissions, May 18–19, 1998, reviewed the progress.” (http://www.ecuador.org/ecuadorperu.html, 15 November 1998.) 3. This is particularly true of the United States as the most influential regional actor. However as noted by Francisco Tudela (Weatherhead Center for International Affairs Fellow and former Minister of Foreign Affairs on 4 December 1998), it is understandable that for many years the Ecuador- Peru conflict was not a priority on the U.S. foreign relations agenda. 4. Fundacion Natura, the Ecuadorian section of the WWF, is among the early promoters of the idea. 5. That is, any organization which has a foundation in international law, such as U.N. specialized agencies or the guarantor states in the Ecuador- Peru case.

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NAME INDEX

Adede, A. O., 49–50 African Charter on Human and People’s Rights, 407 Agarwal, A., 61, 65, 66, 68, 69, 70–71 Agarwala, P. N., 44, 45, 57 Agenda 21, 43, 154, 209, 261, 316–317, 327, 377 Allegre, M., 378 American Petroleum Institute, 99 Amoco, 101 Anderson, A., 189 Antarctic Mineral Resources Convention, 237 Antarctic Treaty (1959), 31, 379 Antarctic Treaty Consultative Parties (ATCPs), 31, 39 Antarctic Treaty Non-Consultative Parties (ATNCPs), 33 Antarctic Treaty System (ATS), 25, 30–40 Aqua Bounty Farms, 365 ARCO, 101, 292 Association of Environmental and Resource Economists (AERE), 149 Ayres, R., 335, 336

Babai, D., 110 Bakkenist, G., 306 Bakshi, R., 57 Bamako Convention, 383–384 Banuri, T., 42, 57 Barde, I., 354 Barker, T., 223 Barnard, J., 100 Barnes, B., 109 Barresi, P., 193, 195, 321 Basel Convention on the Transboundary Shipment of Hazardous Waste and Their Disposal, 5, 39, 255, 263–266, 383–384 Bavaria, J., 87 Beck, F. A., 279–303 Beeby, C., 33 Beijing Conference, 160 Bello, W., 56, 57 Benedick, R. E., 65, 71, 114, 115, 121 Berle, A., 87 Berman, M. R., 64 Bilderbeek, S., 232, 233, 237, 240, 244 “Bill of Rights for Future Generations” (Cousteau), 6

Birnie, P., 4, 231, 235, 236, 237, 238, 239, 240 Blackstone, W., 397–398, 403–404 Blix, H., 390 Boehmer-Christiansen, S., 133, 135, 136, 137, 138–139, 144 Bormann, F. H., 117 Boster, J. S., 183–184 Boston Globe, 197–198 Bowker, D. W., 230-251 Boyle, A., 231, 235, 236, 237, 238, 239, 240 Brandt Commission, 44 Brandt, W., 44, 68 British Antarctic Survey, 117 British Nuclear Fuels Limited, 387–388 British Sun, 174 British Times, 186 Broad, W. I., 339 Brown, J. W., 3, 4, 17, 55–56, 65, 71, 133, 317, 347–348, 354–355, 383 Brown, L. R., 47 Brown, S., 59, 60 Brownlie, I., 249 Brundtland Report, 49, 52

449

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450 Brundtland Commission, 6 Burns, S., 158 Bush, G.H.W., 46, 63–64 Business Charter for Sustainable Development, 85, 96, 97, 104 Business Roundtable, 99 C&EN, 269, 271 Cahill, L., 100, 101 Cairncross, F., 3, 7, 14 Cairo Conference on Population, 160 Caldwell, L. K., 46, 52, 66, 131 Canadian National Round Table on the Environment and the Economy, 98 Capacity 21, 261 Capacity Building Task Force on Trade, Environment and Development (CBTF), 369–370 Capra, F., 144 Carlton, J. T., 361–362, 363, 364, 366, 368, 370, 372, 373 Castel Gondolfo Colloquium, 291, 300 Castellano, M., 230–251 Castro, F., 64 Cato Institute, 198 Center for International Environmental Law, 161, 168 Center for Our Common Future, 166 Centre for Environment and Development for the Arab Region and Europe (CEDARE), 343 Cestero, B., 162, 170 The Challenge to the South (South Commission), 44 Charity, A., 193 Charles Stewart Mott Foundation, 155, 159, 161; Special Initiatives Program, 160 “Charter of Economic Rights and Duties of States” (UN), 54 Chayes, A., 232, 233, 249 Chayes, A. H., 232, 233, 249 Chemical Manufacturer’s Association (CMA), 97, 99 Cheney, D., 365 Chiricop, A., 342, 343, 352 Clark, D. S., 249 Clark, J., 155 Clarke, R., 49

Name Index Cleveland, C. J., 279, 284 Climate Change Agreement, 296 Climate Change Convention, 268, 296 Climate Change Levy, 179 Climate Change Secretariat, 223, 226–227 Cline, W. R., 8, 9–10, 12, 13, 14, 15, 144–145 Clinton, W., 373–374 Coalition for Environmentally Responsible Economies (CERES) Principles, 85, 96, 98, 99, 100, 101, 104 Cockburn, A., 48–49 Code of Conduct on Transparency of Council Proceedings (EU), 315 Commission on Environmental Law, 313 Commission on Human Rights, 406 Commission on Sustainable Development (CSD), 261, 267 Common, M. S., 284, 288 Competitive Enterprise Institute, 198 Conference of Developing Countries (1974), 54 Conference of the Parties (COP), 135, 240; COP-4, 215, 222; COP-5, 188–189, 190 Consultative Group on Biodiversity, 164 Consumption Negotiations Program, 166 Contracting Parties to the Covenant, 399 Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR), 31 Convention for the Control of Transboundary Wastes, 237 Convention on Biodiversity, 112, 221 Convention on Biological Diversity (CBD), 255–256, 268, 340, 366–367 Convention on Climate Change, 288, 296 Convention on Environmental Impact Assessment in a Transboundary Context, 236–237

Convention on International Trade in Endangered Species (CITES), 243 Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), 31, 33 Convention on the Safety of Spent Fuel Management and the Safety of Radioactive Waste Management, 379 Corson, J., 89 Corti, G., 24–40 Council of Economic Advisors, 131 Council of the European Union, 315 Council on Foundations, 164, 169 Cousteau, J., 6 Cowhey, P. E., 322, 325 Cox, R., 323 Cruikshank, J., 58–59, 61, 66, 317, 320 Daily Telegraph, 175, 177–178, 180–182, 188–189 Declaration of Human Rights, 396 “Declaration of Planetary Rights and Obligations to Future Generations” (Weiss), 6 “Declaration of the Right to Nature Conservation, Environmental Protection and Sustainable Development” (Brundtland Commission), 6 Delors, J., 57 Dewees, P. A., 289 DMZ Forum, 421 Doing Public Journalism (Charity), 193 Donnelly, G. W., 170 Dow Chemical, 101, 268 Dowdeswell, E., 338 Down to Earth, 43, 64, 73 Downs, A., 179 Duchin, F., 280, 283 Dumanoski, D., 52 DuPont, 101, 269 Earth Negotiations Bulletin, 154 Earth Summit (Rio, 1992). See United Nations Conference on Environment and Development (UNCED) Eckaus, R. S., 65 Eckel, L., 95 Edge, D., 109

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Name Index Einstein, A., 376 El Baradei, M., 390 Eldorado Nuclear, 405 Elliott, D., 243, 244, 249 EMEP (monitoring program), 348, 350 Energy Foundation, 166 Engelman, S., 100, 101 England, R., 198 Environmental Diplomacy (Susskind), 293 Environmental Grantmakers Association, 164 Environmental Liaison Centre, 166 Environmental Policy and Law, 243 Environmental Protection Bureau, 420 Environmental Sustainability Index (ESI), 273 Environmental Watch: Western Europe (EWWE), 93, 94 Espoo Convention. See United Nations Convention on Environmental Impact Assessment in a Transboundary Context European Air Chemistry Network, 350 European Convention on Human Rights, 312 European Eco-Management and Audit Scheme (EMAS), 94, 101–102 European Union, 236, 278, 313, 321, 422 European Union Commission, 94 Exxon, 100 Fairley, P., 268 Federal Rules of Civil Procedure, 248–249 Fisher, K., 95 Fisher, R., 59, 60, 62, 64, 66, 223, 317, 323 Fisher, R. D., 248 Flaherty, M., 97 Ford Foundation, 155, 159, 160–161, 162, 163, 166 Ford Motor Company, 271 Ford, R., 88 Forest Convention, 268 Forum of Regional Associations of Grantmakers, 169 Foster, C.H.W., 157, 163–164

451 Founex Report, 49 Fourier, J.-B., 135 Framework Convention on Climate Change (FCCC), 134, 135, 150, 222, 223, 280, 283, 300, 340, 345, 357 Frankfurter Allgemeine Zeitung (FAZ), 176, 177–178, 180–182, 188, 191 Fraser, D., 362 Freedom of Access to Environmental Information Directive (EU), 313 Freedom of Information Act (US), 312, 321 Freeman, S., 307, 308 Freid, T. L., 205–229 Fri, R. W., 91, 92 Friedman, F., 95 Fujimori, A., 419 Galloway, J. N., 339 Gardner, R. N., 42 Gaskin v. United Kingdom, 312 Gelbspan, R., 186 Geldart, C., 44 General Agreement on Tariffs and Trade (GATT), 53, 290, 294, 299, 368–369 General Motors, 271 George, S., 56 German Marshall Fund, 155, 161 Getting to Yes (Fisher et al), 59 Gever, J., 279, 282, 284 Global Atmospheric Watch (GAW), 309 Global Biodiversity Forum, 158 Global Climate Coalition (GCC), 186, 222–223, 270 Global Environmental Facility (GEF), 232–233, 245, 246, 290, 296, 302, 317, 382 Global Environmental Management Initiative (GEMI), 85, 96, 97, 99, 104 Global Environmental Monitoring System (GEMS), 309 Gollasch, S., 364 Gordy, M., 87 Gray, C. D., 235 Gray, M. A., 231–232, 240 Green Party (Germany), 175–176, 376 Greenpeace International, 385

Greve, M. S., 244 Group-of-77 (G-77), 43, 44, 53, 59, 68 Guardian, 173, 174, 175, 177–178, 180–182, 188, 189, 191–192 Guiding Principles for Responsible Care of Chemicals, 97 Haas, E. B., 110 Haas, P. M., 109, 113, 115, 116, 117, 118, 133, 417, 423, 424 Hall, H., 169 Hamilton, C., 171 Hansen, R. D., 54 Hardin, G., 5, 25–27 Harris, J., 198 Harrison, J., 304–334 Hartley, J. A., 183–184 Health Action International, 155 The Heat Is On (Gelbspan), 186 Hecht, S., 48–49 Henderson, M., 107–129, 120 Hill, G., 46, 49, 50–52 Hindu, 176, 184, 188 Hoechst Celanese Corporation, 101 Hoffman, A., 86 Holdren, J., 149, 280, 283 Holmberg, J., 50, 57 Homer-Dixon, T. F., 416 Human Dimensions of Global Environmental Change Programme (HDP), 344, 345 Human Rights Committee, 396–397, 399–403, 404–405, 409, 411–412 Imber, M. F., 3, 5 Indian Statesman, 186 Intergovernmental Panel on Climate Change (IPCC), 13, 130, 136–139, 149, 185, 299 International Atomic Energy Agency (IAEA), 376, 379–380, 382, 384, 386, 389, 390 International Baby Food Action Network, 155 International Chamber of Commerce (ICC), 96–97; Principles for Sustainable Development, 99; Working Party, 95

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452 International Conference on the Safety of Radioactive Waste Management, 378 International Convention on Climate Change (ICCC), 15 International Council of Scientific Unions, 33 International Council on Environmental Law, 313 International Council on Exploration of the Seas (ICES), 362, 366 International Court of Justice (ICJ), 234, 237, 241–242, 246, 396, 402, 411 International Covenant on Civil and Political Rights, 396, 398–403, 404, 409, 411 “International Covenant on Environment and Development” (IUCN), 313 International Crane Foundation, 420, 424–425 International Energy Agency (IEA), 290 International Environmental Law Conference, 233 International Environmental Negotiation Network (IENN), 108, 121 International Geophysical Year (1958), 32, 33 International Geosphere Biosphere Programme (IGBP), 343, 345 International Institute for Applied Systems Analysis (IIASA), 148, 214, 352 International Law Commission (ILC), 234, 239, 241, 242–243, 245–246, 247 International Legally Binding Instrument for Implementing International Action on Certain Persistent Organic Pollutants (POPs), 262–266 International Maritime Organization (IMO), 369–370 International Monetary Fund (IMF), 53, 233, 245, 246, 294, 301–302 International Rice Research Institute, 291

Name Index International Social Science Council, 344 International Telecommunications Union, 211 “Invasive Species Management Plan”, 374 IRIDIUM (consortium), 211 Ismail, R., 154 J. M. Kaplan Fund, 171 Jansson, M., 358 Japanese Federation of Economic Organizations (Keidanren), 98 Jastremski, W. M., 361–375 Jigar, J., 344 Johannson, T. B., 280, 282, 283, 285, 286, 288, 291, 292, 299 Johnson, S. P., 42 Johnston, A. I., 118 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, 380–383, 389–390 Joly, C., 88 Jones, C. A., 44, 53, 54 Journal of Environmental Economics and Management, 149 Joyce-Mertz Gilmore Foundation, 166 Kader, S. A., 410–411 Kafr al-Ilw Primary School (Egypt), 410 Kakabadse, Y., 158 Kasibhatla, P. S., 339 Kaufmann, R. K., 284 Kay, D. A., 48 Keck, M., 158, 169 Kelbert, S. R., 117 Kellogg Foundation, 155 Kempton, W., 183–184 Kendall Foundation, 159 Kenen, P. B., 290, 291, 299 Keohane, R. O., 117 Kettering Foundation, 156 Keystone Center, 166–167 Keystone International Dialogue Series on Plant Genetic Resources, 157–158 Khor, M., 43, 52, 66 King, M. D., 376–392 Kishwar, M., 70 Kissinger, H., 46

Koh, T., 67–68, 384 Kohl, H., 179 Kollmuss, A., 172–199 Korea Peace Bioreserves System, 420 Korean Bi-State Reserve for Peace and Nature, 424–425 Korleti, A., 179, 194 Krasner, S. D., 53, 54, 62, 72–73 Ksentini, F., 407, 408 Kufour, E., 43, 45, 48, 60 Kyoto Protocol, 174, 188, 207, 222, 256, 269, 270, 271, 376, 382 Kyoto Treaty, 386 Lach, L., 361, 364 Lange, G. M., 280, 283 Laux, M. F., 414–428 Law of the Sea Convention, 17, 367–368, 384 Leach, J. H., 363 Leander v. Sweden, 312 Leavitt, D., 361, 368 Leonard, J. A., 240 Lerner, S., 47 Levy, H., II, 339 Levy, M. A., 117, 348, 349, 350, 354 Lewicki, R., 212 Li Peng, 120 Lieppe, M. R., 36 Likens, G. E., 340 The Limits to Growth (Meadows et al), 279 Lind, H., 363 Litterer, J. A., 212 London Dumping Convention, 237, 379 Long Range Transboundary Air Pollution Convention (LRTAP), 341, 348, 350, 357 Los Angeles Times, 174–175, 176–178, 180–182, 187, 188–189, 199 Lyon, P., 44 MacArthur Foundation, 155, 166; International Governance and Civil Society Program, 169 McCarthy, W., 62 MacDonald, G. J., 43, 47, 53 McElroy, D., 194 MacLachlan, A., 378, 379 McMahon, V., 168

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Name Index MacNeill, J., 343 Madrid Protocol (1991), 31 Mahbub-ul-Haq, 57, 59, 61, 66, 69 Mainhardt, H., 252–278 Manley, M., 44, 66, 68, 69, 71 Mann, D. E., 107, 377 Marker, J., 43 Mary Reynolds Babcock Foundation, 170 Mathews, J. T., 47, 53, 65, 71 Matson, P. A., 335, 339, 340, 355 Maughan, J., 162 Mawlawi, F., 156 Mbuna, J., 232, 233–234, 244 Meadows, D. H., 46, 279 Meadows, D. L., 46, 279 Means, G., 87 Mediterranean Action Plan (Med Plan), 39, 40, 113, 115–116, 118, 133, 342, 352, 417–418, 422–423 Menon, B. P., 55 Mernitz, S., 310 Merryman, H., 249 Military Armistice Agreement (1953), 419 Mill, J. S., 3–4 Mills, E. L., 363 Minton, J. W., 212 Mintzer, I., 240 Monks, R., 87 Monsanto, 358 Montreal Protocol, 17, 121, 203, 222, 242, 244, 255, 340 Moomaw, W., 136 Moriguchi, Y., 309 Morrison, D., 361, 364 Motorola, 211 Murphy, C., 53, 54, 55, 56 Naimon, J. S., 102 Najam, A., 41–81, 310, 317 Nanda, V. P., 231, 236, 239, 245 Narain, S., 44, 57 Nath, K., 64 Nathan, A., 3–23 National Dialogue on Ecosystem Management, 223 National Invasive Species Act of 1996 (NISA), 372–373 National Invasive Species Council, 373–374 National Research Council on Aquatic Biodiversity, 373

453 National Resources Defense Council, 101 Nature, 339 Nature Conservancy, 366, 370 The New American, 111 New York Times, 43–45, 47, 174–175, 176–178, 180–183, 186–187, 188–189, 191, 336, 410 Newsham, S., 369, 370, 372 NewsHour Online, 166 Nielsen, W., 159, 162 Nishioka, S., 309 Nitrogen Oxides Protocol, 341 Nitrogen Protocol, 350 Nixon, R., 46 Non Proliferation Trust, 387 Nonaligned Movement (NAM), 44, 53, 55 Nonindigenous Aquatic Nuisance Prevention and Control Act (NANPCA), 372–373 Non-Proliferation Treaty (NPT), 381, 389–390 Nordhaus, W. D., 8, 11, 15, 142–143, 144–145 Nordic Convention for Protection of the Environment (1974), 236 North American Free Trade Agreement (NAFTA), 156, 161, 243, 278 North Pacific Marine Science Organization (PICES), 366 The North-South Dialogue: A Brief History ( Jones), 54 Nuclear Control Institute, 385 Nuclear Waste Convention, 383–384 Nyerere, J. K., 56, 59, 63, 66, 68, 73 Occidental, 101 Oeschger, H., 345 O’Neill, K., 378–379, 385, 386–387 Onestini, M., 306 Oppenheimer, W., 93, 94 Optional Protocol to the Covenant, 400, 401–403, 409, 410–411 Organization for Economic Cooperation and Development (OECD), 38–39, 202, 267, 290, 348 Organization of Petroleum Exporting Countries (OPEC), 54, 284, 292

O’Riordan, T., 344 Orts, E. W., 90, 93 Ostrom, E., 26–27, 29, 30, 37 Our Common Future (WCED), 279 Outer Space Treaty, 379 Owens, I., 354 Ozawa, C., 116, 122, 125, 131, 132, 145, 218 Ozone Convention, 237 Paerl, H. W., 339 Pangea (consortium), 379 Pardo, A., 3 Paris Commission, 115 Parry, M., 344 Pasztor, J., 226–227 Patton, B., 59, 60, 62, 66, 317 Pearce, D. W., 282, 307, 308 Pederson, J., 363 Peng, M.K.K., 48, 56, 57, 66, 68, 69, 70–71 Pennsylvania State University, 420 Perkaus, J. F., 335–360 Peterson, M. J., 114 Pew Center on Global Climate Change, 269, 271 Pew Charitable Trusts, 155, 160, 166 Pew Research Center, 199 Philippine Development Forum, 158 The Phoenix, 199 Pimentel, D., 361, 364 Pirages, D., 46, 49, 52 Policy Research and Strategic Planning Institute for Ghana, 209 Pollution Prevention Act of 1990, 95 Port Hope (Canada), 405 Porter, G., 3, 4, 5–6, 17, 55–56, 65, 71, 133, 302, 347–348, 354–355, 383 Portland Helwan Cement Company (Egypt), 410 PricewaterhouseCoopers, 100, 101–102, 103 Principles for Sustainable Development, 99 Proctor, R. N., 108, 109 Pruitt, D. G., 59, 60, 63, 317 Putnam, R. D., 320 Raiffa, H., 59, 61, 65, 68, 317 Ramphal, S., 59, 66, 68, 73

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454 Randers, J., 46, 279 Rappaport, A., 97 Rea, K. N., 395-413 Regional Environmental Center for Central and Eastern Europe, 147 Reid, D., 372 Reilly, W., 100 Renevier, L., 107–129, 132 Renewable Energy Sources for Fuels and Electricity ( Johannson et al), 286 Republican Party (US), 174 Responsible Care, 85, 96, 97, 99, 104 Revelle, R., 335 Rich, B., 299 Rio Declaration on Environment and Development (Rio DEAD), 67–68, 366 Rio Protocol (1942), 418, 419 Ritch, J., 376, 378 Rocco, E., 218 Rockefeller Brothers Fund, 160 Rockefeller Foundation, 155, 159, 166; Leadership for Environment and Development Program, 160 Rocky Flats Environmental Technology Site, 223 Rocky Mountain Institute, 271 Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 263–266 Rowland, W., 46, 48, 49, 52 Rubin, C., 244 Rubin, J. Z., 59, 60, 61, 63, 317 Ruckleshaus, W., 100 Rueda, X., 302 Russell, G., 95 Sabri-Abdalla, I., 44 Sacred Earth Network, 169 Saetevik, S., 115 Salzburg Initiative, 30, 65, 66, 67, 121, 130, 147, 233, 280, 293, 298, 352 Samaan, A. W., 231, 240 Sand, P. H., 4, 39 Saunders, D. M., 212 Saunders, H. H., 58

Name Index Schlesinger, W., 335, 336 Schrader-Frechette, K. S., 399 Scientific Committee on Antarctic Research (SCAR), 33–34, 36 Sebenius, J. K., 47, 52, 53, 64, 65, 68, 317 Second Nature, 197 Secor, C. L., 363 Shiva, V., 69 Sikkink, K., 158, 169 Simmons, P., 92, 95, 96 Simons, M., 52 Skinner, E., 91 Skolnikoff, E. B., 48, 65, 136 Smillie, I., 159 Smith, A., 134 Smith, F. L., 42 Smith, J. A., 99 Smith, S. L., 92 Smith, T., 159, 161 Snidal, D., 345–346 Snow, E., 162, 170 Soars, S., 363, 368 Society of Environmental Journalists, 195–196 Socolow, R., 335, 336 Sofia Convention, 341 Sollenberg, M., 414 South Commission, 44, 48, 57, 63, 66, 67, 68, 69–70, 73 South-North Development Monitor (SUNS ), 43 Stairs, K., 111, 117 State of the World (WWI), 198 Statement on Forest Principles (SFP), 340 Statesman, 176, 187, 188 Stavropoulos, W., 268 Steele, J. H., 100 Steiner, G., 89 Stevens, W. K., 110, 336, 358 Stockholm International Peace Research Institute, 417 Stokke, O. S., 33, 35 Stone, C., 90 Strong, M., 52 Sueddeutsche, 176, 177–178, 180–182, 188 Suess, H., 335 Sulfur Protocol, 350 Sunday Observer, 175 Sunday Telegraph, 175 Sunday Times, 175

Superfund Amendments and Reauthorization Act (SARA), 95 Susskind, L. E., 4, 5, 6, 12, 15, 35–36, 58–59, 61, 65, 66, 67, 91, 116, 122, 125, 130, 132, 133, 147, 219, 230, 232, 233, 234, 238, 280, 293, 317, 320, 328, 352, 423 Sutton, B., 87, 88 Sweden, Leander v., 312 Tabors, R., 284 Tages-Zeitung (TAZ), 173, 176, 177–178, 180–183, 188, 191 Tax Reform Act (1969), 163 Taylor, J., 198 Taylor, P., 111, 117 Technology Revolution Study (UNDP), 211 TerraViva, 43, 57 Texaco, 271 Texas Center for Policy Studies, 160 Third World Resurgence, 43 Thomas, C., 56 Thomas, F., 163 Thomson, K., 42 Timberlake, L., 49 Times, 175, 177–178, 180–182, 184, 187, 188 Toben, S., 170 Together Foundation, 209, 211 Tolentino, A., 244 Toronto NGO Conference on the Changing Atmosphere Implications for Global Security, 135 Toxics Release Inventory (1988), 95, 278 “The Tragedy of the Commons” (Hardin), 25 Turner, T., 167 Umbrella Group, 174 UNDP-GEF Capacity Development Initiative, 260 Union Carbide, 97, 101 United Kingdom, Gaskin v., 312 United Nations, 25, 31, 37–38, 46, 52, 54–55, 104, 167, 272, 312, 390 United Nations Charter, 55 United Nations Commission on Sustainable Development, 43

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Name Index United Nations Conference on Environment and Development (UNCED), 40, 42, 42–52, 63–64, 67, 68, 135, 155, 160, 164, 168, 207, 299, 316–317, 318–319, 366–367, 377, 406 United Nations Conference on the Human Environment (UNCHE), 40, 45–52, 120, 149, 240, 407 United Nations Conference on Trade and Development (UNCTAD), 53, 168, 369–370; Division on Transnational Corporations and Investment (DTCI), 267 United Nations Convention on Climate Change (CCC), 174, 207, 240 United Nations Convention on Environmental Impact Assessment in a Transboundary Context, 313, 318, 325 United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, 256 United Nations Development Program (UNDP), 211, 246, 260, 261, 295 United Nations Economic and Social Council (ECOSOC), 48, 406 United Nations Economic Commission for Europe (ECE), 236–237, 318, 325 United Nations Environment Program (UNEP), 39, 113, 120, 122, 128, 135, 154, 157–158, 202, 231, 232, 239, 240, 241, 242–243, 245–246, 257, 260, 263–264, 318, 338, 342, 343, 348, 352, 369–370, 371, 399, 420, 422 United Nations General Assembly, 239, 396, 406 United Nations Human Development Index, 273 United Nations Human Rights Convention, 393

455 United Nations Institute for Training and Research (UNITAR), 44 United Nations Regional Seas Program, 342 United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, 406, 407 United Nations Third Conference on the Law of the Sea (UNCLOS III), 17 United States Arms Control and Disarmament Agency (US ACDA), 381 United States Atoms for Peace Program, 381, 385 United States Clean Air Act, 150, 341, 357 United States Coast Guard, 361, 370, 372 United States Congress, 269 United States Department of Energy, 223, 378 United States Department of Transportation, 372 United States Environmental Protection Agency (EPA), 94–95, 96, 368; Green Lights Program, 271–272 United States Geological Survey, 370 United States International Trade Commission, 312, 322 United States National Aeronautics and Space Administration (NASA), 114, 257 United States Office of Technology Assessment, 399 United States Senate Foreign Relations Committee, 318 “Unity Alone is not Strength” (Ramphal), 66 Universal Declaration on Human Rights, 405 University of Michigan, 272 University of Toronto (Canada), 417 University of Trento (Italy), 218 Uranium Institute, 380 Urbani, E., 244 Ury, W., 59, 60, 62, 66, 223, 317

Valdez Principles, 104 Van Leeuwen, H., 372 Vanasselt, W. G., 154–171 Ventana, 217 Vester, F., 148–149 Vienna Convention for the Protection of the Ozone Layer, 17, 114, 357 Vitousek, P., 335, 336, 339, 340, 355–356, 358 W. Alton Jones Foundation, 155, 157, 160, 161 Waldheim, K., 54 Wallace Global Fund, 161 Wallensteen, P., 414 Wapner, P., 424 Ward, B., 44 Warford, J. J., 282 Washington Post, 174–175, 176–178, 180–182, 187–189 Weiss, A. M., 85–106 Weiss, E. B., 6 Wesseloh, I., 205–229 Westing, A. H., 417, 420, 426 Wicks, C., 103 William and Flora Hewett Foundation, 170 Williams, M., 47, 48 Williams, M. P., 110 World Bank, 53, 155, 202, 233, 245, 246, 257, 259–260, 290, 296, 299, 301–302, 315–316 World Business Council for Sustainable Development, 352 World Climate Conference, 6, 135 World Climate Research Program (WCRP), 345 World Commission on Environment and Development (WCED), 49, 279, 351 World Commission on Forests and Sustainable Development (WCFSD), 340, 351 World Conservation Union (IUCN), 157–158, 313 World Economic Forum (WEF), 267, 273 World Health Organization (WHO), 399

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456 World Industry Conference on Environmental Management (WICEM II), 96–97 World Meteorological Organization (WMO), 136, 309, 343 World Resources Institute (WRI), 101, 157–158, 161

Name Index World Trade Organization (WTO), 161, 278, 290, 294, 300, 362, 366, 370–371 World Wildlife Federation (WWF), 101, 202, 366, 370 World Wildlife Fund, 422 Worldwatch Institute, 198 Wright, R., 91 Wynne, B., 92, 95, 96

Yeltsin, B., 46 Zapfel, P., 130–153 Zartman, I. W., 64, 133 Zartman, W., 346–347 Zehr, M. A., 170–171 Zimbardo, P. G., 36 Zuniga, R., 361, 364

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SUBJECT INDEX

accountability and transparency: in decentralized environmental regimes, 35–36; and enforcement, 249; and information technology, 226. See also corporate accountability acid rain, 341, 350 activism, for media reform, 199 ad hoc treaty regimes, 260 administrative capacity, lack of, 319–320 Advocacy Coalition Frameworks (ACF), 133–134 affirmative action science, 123–124 Africa, nuclear waste disposal in, 382, 383–384 air pollution, and greenhouse effect, 8 alliances: decentralized, 30, 352; North-South NGO, 154–171 Antarctic Treaty System (ATS): design principles of, 34–38; eco-regional possibilities beyond, 38–40; membership of, 32–33; as model for decentralized environmental management, 30–34 anthropogenic activity: and nitrogen perturbations, effects

of, 337–342; and species introductions, 361 appeal process, 241–242 applied policy analysts, 132 AquAdvantage Salmon, 365 Argentina, 32 armed conflict: channels of communication during, 424; environment and, 416–418; environmental cooperation for resolution of, 426–428; framework for analysis of, 415–416; international factors as confidence builders during, 422–426 authority deficit, 232 Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal: capacity building in, 255; revision of, 383–384 best alternative to negotiated agreements (BATNA), 63 Bhopal (India), 95 biodiversity, and nitrogen compounds, 340–341 bioinvasive species: classified as pollutants, 367–368;

climate change and, 364–365; controlling and preventing, 372; defined, 362; irreversibility of invasion, 368; vectors of introduction, 362–364. See also International Convention on Bioinvasive Species boomerang effect, 133 bounded membership, of commons, 26–27 brainstorming, and information technology, 217–219 brown tree snake, 363–364, 370 building-block approach, 71–72 business schools, CBMU collaboration with, 272 capacities, maldistribution of, 108, 146–148, 327–328 capacity building, 252–275; access to technology, 209–211; defined, 253–254; for information inequalities, 327–328; and linkage of convention regimes, 261–266; linkage to technology transfer, 321; logistics and funding of, 211–212; mechanisms in UN 457

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458 environmental agreements, 254–257; monitoring progress of, 272–274; obstacles to, 257; revenue-generating, 268; systems approach to, 260–261; typical activities, 254 capacity-building management unit (CBMU): as ad hoc working group, 259; creating, 258–260; engagement of private sector, 267–272; marketing activities of, 267–268; responsibilities of, 258–259 carbon dioxide (CO2) concentrations, 135 carbon taxes, 15, 144 Chile, 32 China: emergence as power at UNCHE, 46, 47; science in, 119–121 chloroflourocarbides (CFCs), costeffective alternatives to, 17–18 civil investing, 170–171 climate change: and bioinvasions, 364–365; central issues of, 136; and economic analysis, 140–141, 149–150; and greenhouse gases, 7–9; and maldistribution of scientific capacities, 146–148; media coverage of, 172–199; negotiations on, 130, 135–136, 207–208; policy responses to, 350–357; and scientific uncertainty, 111, 143–144; social vs. natural science in, 140; voluntary corporate action on, 269–270. See also Intergovernmental Panel on Climate Change (IPCC) climate skeptics, 186 coalitions, 68; formation of, 133–134, 298; and issue linkage, 354–355 Cold War politics, and South’s agenda, 45–48 collective self-reliance, 72–73 colonialism: and North-South divide, 56, 57, 63; waste, 383–384 command-and-control regulation, 89–90; alternatives to, 90–93 Common Heritage of Mankind (CMH), 3–22; differing definitions of, 5–7; multilateral

Subject Index agreements based on, 17–18; need to define, 3–5, 15, 18–19; variable factors, 9–16 common-pool resources: bounded membership of, 26; exclusiveness of self-organizing, 30; as hybrid category of goods, 27; sustainable exploitation of, 25 commons: Antarctica as, 30–34; legal history of, 26–28, 38; local vs. international models, 29; membership in, 30; privatization of, 26; and sustainable environmental management, 25–30; tragedy of, 5 communications technology, 168–169 compromises, and normative principles, 4 Concorde aircraft controversy, 115 confidence building, during armed conflict, 422–426 confrontation, 59 consensus, and nuclear waste disposal, 377 consensus-based decision making (CBDM), 131–132; in ATS, 33; infusion process, in prenegotiations, 145–146 constituency, developing, 68–69 consultation, need for, 212–213 consumption vs. population debate, 165–166 Convention on Biological Diversity, capacity building in, 255–256 conventional model of environmental negotiation, 321–322 convention-protocol approach: limited success of, 280; unsuitability for utilization of scientific input, 125 coordinated strategy, importance of, 66–68 COP-5 meeting, media coverage of, 188–192 corporate accountability, 85–106; and collaboration with environmental groups, 100–101; and environmental audits, 103; and formal environmental policies, 102; reasons for encouraging, 88; and reporting, 101–102

corporate responsibility: lack of criteria for, 88–89; reasons for, 88; for transnational regime, 37; and voluntary management codes, 92–93 corporations: and capacity building, 267; government regulation of, 89–90; incentives to improve environmental performance, 86–88; influence and expansion of, 87–88; and information technology, 221–223; as resource for environmental solutions, 85; voluntary action on climate change, 269–270; and voluntary management codes, 90–93 cost/benefit analysis: and climate change, 140, 149; controversiality of, 134–135; of emissions controls, 11; of global warming, 8; implicit assumptions of, 134 costs: of bioinvasions, 364; of enforcement, 248; of environmental damage, 282; reduced by voluntary management codes, 91 cranes, 420 creative linkages, 65 credibility: of corporations, 86, 104–105; of science, 124 criteria, for environmentally responsible companies, 88–89 cross-sectoral linkages, 289–290 cultural cluster meetings, 329 decentralized alliances, 30, 352 decentralized environmental regimes: ATS as model of, 30–34; design principles for, 34–38; efficiency of, 39–40; selfcompliance and enforcement in, 37–38 decision making: in ATS, 33; consensus-based, 131–132; dissimilarities in norms of, 328–329; and environmental information needs, 306–309; process of, 132 developing countries: cost of environmental damage in, 282; differential treatment for, 298; and FAIR, 5–6; fossil fuel use in, 283; increasing technology

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Subject Index transfer to, 124; and information technology, 222–223, 225; legal systems of, 246–247; POP capacitybuilding projects in, 260–261; and renewable energy technology, 288; soft science in, 111–113; strategies for scientific self-reliance, 147–148. See also North-South divide; South development: as South’s agenda, 45–50, 53; and South’s political independence, 57. See also sustainable development diminishing returns, of commandand-control regulation, 89–90 discounting: and climate change, 140; time, 9 diseases, caused by bioinvasive species, 364 diversity, in eco-regional regimes, 39 divide-and-coalesce strategy, 354 DMZ (Korea), biodiversity in, 420–421 domestic legal systems: and appeal process, 241–242; broadening of standing rights in, 235–238; harmonization of international environmental law and, 238–241; right of foreign nationals to sue in, 237 domestic politics: and access to environmental information, 319–320; science and, 118–121 draft treaties, 67, 223 Earth Charter, 209 Earth Summit. See United Nations Conference on Environment and Development (UNCED) (1992) ECON (definition of CMH): defined, 6–7; variable factors for, 9–16 economics and economic analysis, 134–135; role of, in climate change negotiations, 140–141, 149–150; as science, 147 Ecuador-Peru border dispute, 418–419 Egypt, 410–411 enforcement. See monitoring and enforcement

459 enlightened self-interest, 61 entitlement, 9–10 environmental audits: defined, 95; external, 95–96; internal, 103 environmental degradation: and resolution of armed conflict, 426–428; and right to life, 402–403 environmental impact assessments (EIAs), 318; transboundary, 321 environmental information: defined, 306–307; freedom of access to, in international law, 312–313; needed for decision making, 307–309 environmental journalism, redefining role of, 193–195 environmental nongovernmental organizations (ENGOs), role of, 291–292, 423–425 Environmental Right-to-Know Convention (proposal), 304–334; barriers to, 318–320; challenges of, 330; and current international law, 312–314; implementation of, 325–327; “information poor” vs. “information rich” nations and, 308–311; issue defining in, 327–329; need for, 305–308, 314; negotiation process options for, 320–327; parties to, 324–325; prenegotiation in, 323–324; and reciprocity, 316–317; role of NGOs in, 327; substantive obligations of, 314–316 environment-development linkage, 49–50 epistemic communities: defined, 423; in environmental cooperation among enemies, 422–424; science and, 133 Eurocentricity in international law, 239–240, 246–247 European green crab, 363 facilitators: in climate change negotiations, 208; for harmonizing legal guidelines of treaties, 239–240; and issue linkage, 219–220; for SPIPs, 145; in technology-based negotiations, 208–209, 216–217

fact finding: acceptability of scientific data, 115–116; defined, 348; inquisitorial, 36–37; joint, 208, 220–221, 346–347 FAIR (definition of CMH): defined, 5–6; multilateral agreements based on, 17; variable factors for, 9–16 fall-forward incrementalism, 346 fertilizer effect, 340 fertilizers, agricultural, environmental impacts of, 338 focus-on-effects approach, 345 fossil fuels: burning of, 135, 338; environmental impacts of, 281; lobby, 186; nitrogen compounds from, 338–339; subsidies for, 282, 285, 288, 289, 290 foundations: grants based on NorthSouth linkages, 164– 165; new approaches of, 163; obstacles to larger role, 161– 163; pilot alliances initiated by, 165–170; promotion of North-South NGO alliances, 154– 156, 159–161; research and guidance programs for, 163–164 framework agreements, 128; disadvantages of, 31 France, rejection of emissions limitations, 115 freedom of information, in international law, 312–314. See also Environmental Right-toKnow Convention (proposal) freedom, social implications of, 397–398 fund allocation: affirmative action science and, 124; for capacity building, 211–212; deficit of, 232; for establishing national research institutes in developing countries, 147–148; for global alliance-building, 162; for international scientific research, 126; and vested interests, 117 future environmental treaty regimes, structures for scientific research, 125–128 genetically modified organisms (GMOs), 365

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460 Germany: media coverage of environmental issues in, 175–192; nuclear waste crisis in, 376-377 global commons, 24; as contradiction in terms, 25 global economic system, and North-South environmental negotiations, 55–56 global liberalism, 54 Global Nitrogen Initiative (proposal), 335–360; case for, 337–342; coalitions in, 341–344; financing of, 356–357; holistic multimedia strategy of, 344–346; IT in, 358; maintaining coalition in, 346–347; policy body of (Eminents), 350–357; policy prescriptions of, 357–359; scientific projects of, 347–350; scope of, 341; as template, 359 Global Treaty on Renewable Energy (proposal): coalition building in, 298; contingent agreements in, 298–299; differential treatment in, 298; elements of, 293; funding for, 302; implementation of, 299–302; issue linkage in, 296–298; market failure and environmental externalities addressed in, 294; “no new institution” concerns addressed in, 299; opposition to, 292; role of nonstate actors in, 294–295; structure of negotiations, 293–299; technology sharing and aid in, 296; trade issues addressed in, 294 global warming, costing of, 8 goals, specification of, 212 government regulation: commandand-control, 89–90; corporate fear of, 271 grass-roots activism, for media reform, 199 green taxes, 354 green turtle (Chelonia mydas), 421–422 greenhouse gases (GHG): and climate change, 7–9; determining cost of, 12–16; inheritance of, 10–11 GroupSystems software, 217

Subject Index hard laws, 4–5, 231 hard science, 111–113 Hardin, G., 26 harmonization, of legal standards, 238–241 hazardous waste disposal, 5; global vs. regional approaches to, 38–39. See also nuclear waste disposal holistic approach, 65–66; hurdles to, 116 holistic multimedia approach, 344–346 homo oeconomicus, 134 human activity. See anthropogenic activity human rights: and Article 6(1), 398–399; codification of, 396–397; and environmental quality, 393, 402–403, 407–408; legal difficulties of environmental problems, 397–398, 405–406 Human Rights Committee: benefits of, 402–403; criteria for submission of claims to, 400–401; as forum for international environmental claims, 409–412; limitations of, 401–402; test environmental cases before, 404–406 implementation: and accountability, 226; information technology in, 223–224; in integrative model, 325–327; time frames for, 242 incentives, for treaty compliance, 232–233 India: and forest management, 6; media coverage of environmental issues, 176, 186–187 indigenous knowledge, 112, 123, 124 industrialized countries. See North; North-South divide industry groups: importance of, 83–84; participation in nonrenewable energy treaty, 294–295 information access. See Environmental Right-to-Know Convention (proposal) information sharing, 168–169

information technology (IT), 205–229; benefits of, 225–226; challenges to using, 224–225; for creating value, 219–220; defined, 207; for draft preparation, 223; for environmental journalists, 196; in face-to-face negotiations, 215–219; glossary, 228–229; in implementation phase, 223–224; for improvement of negotiation process, 206–208; for joint fact-finding, 220–221; logistics of, 208–212; for participation by nonnegotiators, 221–223; in prenegotiations, 213–215 information-poor nations, 309–310; common factors of, 209–210 information-rich nations, 310–311 inheritance: beneficiary of, 9–10; CMH as, 9; nature of, 10–11; value of, 12–16 INSPIRE (negotiation support system), 214, 220 integrative model of environmental negotiation, 323–327 interdisciplinary interactions, 141, 148–149 “interested party”: broadening of legal concept of, 236; new definition of, 237 interests, vs. positions, 60–61 Intergovernmental Panel on Climate Change (IPCC), 136–143; dominance of industrialized countries in, 137–138; effectiveness of, 138–139; goals and organization of, 136; nationalities of members, 137; surveys of, 139–143, 151–152 intergroup discrimination, 35, 39 International Convention on Bioinvasive Species (proposal): incentives to sign, 374; involvement of shipping industry with, 371–372; model for, 372–374; multifaceted approach to, 365–366; previous agreements and, 366–371 International Covenant on Civil and Political Rights, Article 6(1), 398–399

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Subject Index international joint implementation technology transfer programs, 11 International Law Commission (ILC), and enforcement, 239–240 International Regime to Limit Transboundary Consequences of Nuclear Waste Disposal (proposal), 376–392; compliance with, 391; IAEA as secretariat of, 390; international vs. regional solution, 386–387; issue linkages in, 388–390; national government interests in, 384–385; need for, 376–377; nuclear industry and, 386, 387–388; role of NGOs in, 385–386 international trade: interruption of, as protection against bioinvasions, 368–369; and species introductions, 363–365; and switch to nonrenewable energy sources, 294 international transferable discharge permit systems, for greenhouse gases, 14–15, 203 internationalization, 420–421 Internet, for information sharing, 169, 202 issue clarification, 208, 348; mutually-agreed, 346–347 issue linkage: and coalition building, 354–355; and creating value, 219–220; and media coverage of climate change, 195, 197; in nonrenewable energy negotiations, 296–298 issues trading, 63, 65–66 Japan, 32 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management: geographical makeup of signatories to, 380–381; goals of, 380; weaknesses of, 381–383 joint-convention fund, 265 journalism: improving environmental education in, 196–197; information access in, 195–196; and issue linkage, 195,

461 197; journalistic style, 191–193; redefining role of, in environmental reporting, 193–195 Kaldor-Hicks criterion, 134 Koh, T., 67–68 Korean Peninsula, 419–421 Kyoto Protocol, capacity building in, 256 language: barriers, 224; used in environmental articles, 191 lateral regime building, 34 legal standards, harmonization of, 238–241 legal structure, inadequacy of, 202–203. See also monitoring and enforcement, proposal for legitimacy: of corporations, 86, 90–91, 104–105 linkage, 18; creative, 65; crosssectoral, 289–290; environmentdevelopment, 49–50; technology transfer and capacity building, 321 loggerhead turtle (Caretta caretta), 421–422 Logical Positivist Empiricism (LPE), 131–132 lowest common denominator trap, 68–69, 156, 245–246, 318–319 Malaysia, 6 marine dumping, 117 marine pollution, 342–343 market failures, of nonrenewable energy sources, 281–283, 286–287; correction of, 288, 289, 290, 294 marketing, of environmental projects, 271–272 markets, and achievement of global environmental goals, 203 media coverage of environmental issues, 172–199; coverage of COP-5 meeting, 188–192; coverage of scientists, 117, 145; need for reform, 199; and public apathy, 184–185; qualitative analysis of, 183–184; quantitative analysis of, 176–183; and scientific uncertainty, 185–188 media reform, proposals for, 192–199; grass-roots activism,

198; heightened visibility of environmental issues, 197–198; improved coverage, 192–193; improved information access, 195–196; improved journalism education, 196–197; issue linkage, 192, 195, 197; redefining role of environmental journalists, 193–195 membership: in eco-regional regimes, 39; valuable, 35 methane emissions, 135 mistrust, 158–159 modular approach, 71–72 monitoring and enforcement, 18; in decentralized environmental regimes, 37–38; by EPA, 96; of international treaties, 226; shortcomings of current treaty regimes, 231–233 monitoring and enforcement, proposal for, 233–251; appeal process in, 241–242; broadening of standing rights in, 235–238; criticism of, 244–247; details of, 233–235; harmonization of domestic law, 238–241; in hypothetical situations, 242–244; implementation of, 242; role of ILC in, 239–240; strengths of, 231, 247–250 Montreal Protocol, capacity building in, 255 multinational corporations: GHG reductions of, 271; numbers of, 83; size of, 87 mutual gains, creating options for, 353 nationhood, as basis for entitlement, 10 “negotiation jujitsu,” 62 negotiation process: for NorthSouth conflicts, 317; scientists in, 109–111, 132; time pressures in, 320 negotiation strategies, 58–59 negotiation theory, 65, 68 neoclassical economics, 149 Netherlands, 237 New International Economic Order (NIE(co)O): emergence and rationale of, 54–55; failure of,

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462 57–58, 59; North-South environmental dialogue as extension of, 53; Nyerere’s definition of, 56; South’s negotiating strategy at, 56 New International Environmental Order (NIE(nv)O): emergence of, 56–58; and South’s selfreliance, 69–71 newspapers. See journalism; media coverage of environmental issues nitrogen cycle, 335–336; anthropogenic perturbations to, 337–342; and carbon cycle, 340. See also Global Nitrogen Initiative (proposal) nitrogen fixation, 335 “no new institution” concerns, 299 nongovernmental interests (NGIs): access to information, 208, 211; attendance at SPIPs, 146; role in analysis of conflicting evidence, 352; as South’s allies, 69 nongovernmental organizations (NGOs): empowering with right to sue, 240, 243–244; importance of, 83–84; increasing influence of, 156–157; and information technology, 221–223; as instigators of government regulation, 90; role in bioinvasion negotiations, 366; role in commons issues, 156; role in environmental cooperation among enemies, 422–425; role in negotiation process, 295, 327, 329, 330; role in treaty compliance regimes, 233, 248–249. See also environmental nongovernmental organizations (ENGOs); North-South NGO alliances nonrenewable energy sources: environmental impacts of, 281; market failures related to, 281–283, 285, 288, 289, 290; population growth and, 283; scarcity of, and security concerns, 284; and sustainability, 284. See also Global Treaty on Renewable

Subject Index Energy (proposal); renewable energy sources nonstate actors, importance of, 83–84 Nordhaus Optimum, 9, 11, 15 no-regret options, 149, 298–299 normative principles: ECON, 6–7; FAIR, 5–6; and multilateral agreements, 4, 17–18; SUSTAIN, 6 North: Balkanization of environmental treaties, 65–66; scientific capacity in, 114–115, 146 North Korea, Taiwanese nuclear waste and, 377 North-South divide: defined, 44; at international environment conferences, 50–52; over additionality and conditionality, 328; rooted in colonialism, 56, 57, 63 North-South environmental negotiations: adversarial nature of, 41–42, 55; impact of global economic system on, 55–56; process for, 317; redefinition of, as non-zero-sum game, 60; South’s frustration with, 50–52, 56; SouthSouth negotiations as part of, 68–69 North-South NGO alliances: merits of, 156–157; models of, 157–158; obstacles to building, 158–159; support from foundations, 154–156, 159–165; test cases for, 165–170 “not in my backyard” (NIMBY) syndrome, 383 nuclear energy, 115; security risks of, 286; subsidies for, 282, 285 nuclear waste disposal: geological repositories for, 378; increase in waste volume, 376–377; lawsuits regarding, 404–405; scientific uncertainty regarding, 378–379; weaknesses of current alternatives, 379–380. See also International Regime to Limit Transboundary Consequences of Nuclear Waste Disposal (proposal) nuisance species. See bioinvasive species

objectivity: in journalism, 189; in science, 109, 122 oil price crises, 53, 54, 284 oil spills, 99, 284 “one-size-fits-all” treaties: and access to environmental information, 318–319; and ratification, 239–240, 245–246 on-line discussions, 206, 208, 215–217, 218 Ostrom, E., 26–27 ozone layer, and Montreal Protocol, 17 Pareto criterion, 134 parties: consultation of, 212–213; number of, and information technology, 205–206; number of, in integrative model, 324–325; in SPIPs, 145 paternalism, 158–159 peace, environmental issues as means of achieving, 414–428 persistent organic pollutants (POPs): capacity-building agreements on, 259–260; potential regime linkages regarding, 262–266; substances covered by agreements, 263–264 Peru-Ecuador border dispute, 418–419 philanthropies. See foundations piggyback species, 363 pilot North-South NGO alliances, 165–170 policy-oriented learning, 134 polluter-pays rule, 12, 231 population: as basis for entitlement, 9–10; and energy use, 283; and use of nitrogen fertilizers, 339–340 porphyra yezoensis (seaweed), 365 power balance, redefining, 61–63 precautionary principle, 298–299 preemptive action, 346 “preference elicitation,” 214 prenegotiation: and coalition building, 298; consensus-based infusion process in, 145–146; consultation in, 212–213; goals specification in, 212; importance of, 67; and

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Subject Index incremental regime formation, 346–347; information technology in, 213–215; in integrative model, 323–324; limitations of, 213 Prisoner’s Dilemma dynamic, 288 private sector: marketing of business opportunities to, 267–268; marketing of environmental projects to, 271–272 property rights: and commons, 26–28; evolution of, 3–4; and natural resources, 6–7; and transferable discharge permits, 14 public, and information technology, 221–223, 224 public journalism, 193–195 ratification, 239–240, 245–246 reciprocity: concept of, 245; and data gaps, 316–317; in freedomof-access-to-information measures, 314–316 red-crowned crane, 420 regime formation, incremental, 346–347 relationship, as critical component of negotiations, 64 remote sensing, 202 renewable energy sources: benefits of using, 286; constraints of, 286–287; cost-competitiveness of, 285–286; development of, 285; need for international cooperation on, 287–293; underutilization of, 279–281. See also Global Treaty on Renewable Energy (proposal) reporting, corporate trends in, 101–102 repositories, nuclear waste, 378–379; international vs. regional, 386–387 right to know. See Environmental Right-to-Know Convention (proposal) right to life: defined, 398–399; linkage to environmental quality, 402–403, 407–408, 409–411 right to pollute, determining value of, 12–16 rights of commons, 27

463 right-to-know procedures, 95 Rio Declaration, 209 Rio Summit. See United Nations Conference on Environment and Development (UNCED) (1992) Russia, and nuclear waste disposal, 387 salmon, genetically modified, 365 Salzburg Initiative, 29–30, 67 sanctions, and treaty compliance, 232–233 scenario models, 206 science, 107–129; acceptability of data, 115–116; balance between politics and, 121–128; diversification of, 123–124; and domestic politics, 118–121; as driving force of ATS, 33–34; and epistemic communities, 133; future regime structure for, 125–128; and information technology, 206; as inquisitor, 36–37; interdisciplinary interactions, 141, 148–149; and international politics, 113–117; intervention points in environmental negotiation, 109–111, 132; maldistribution of capacities, 114–115, 146–148; modern vs. traditional, 111–113; and negotiation process, 295; problems in environmental negotiations, 108; role of, in politics, 122; as value-free, 131, 141, 143–145; and vested interests, 116–117 science communicators, 132 Science-Policy Interaction Panels (SPIPs), 145–146 scientific organizations, importance of, 83–84 scientific uncertainty: and market failure of nonrenewable energy, 281–283; media coverage of environmental issues and, 185–188; and nuclear waste disposal, 378–379 seabeds, ownership of, UNCLOS III and, 17 security: and diversification of energy sources, 286; multiple connections to environmental

issues, 394; and nuclear waste disposal, 387; and resource scarcity, 284 self-organization: and commons, 29; and environmental audits, 95–96 self-reliance, 69–71; collective, 72–73; scientific, 147–148 shaming, 233, 249 share-swap system, 297–298 ship fouling, 363, 364 shipping industry: ballasting policies of, 363, 364; and species introductions, 361–362; unwillingness to minimize species transport, 374 slowest-boat syndrome, 156 social well-being, measurement of, 134 soft laws, 4, 231 soft science, 111–113 software, for brainstorming, 217 South: “bruised optimism” of, 42–52; development agenda of, 45–50, 53; expectations of UNCED, 43–45; increasing scientific representation from, 123–124; indigenous environmental movements in, 317; maintaining moral high ground of, 70–71, 74; need for proactivity, 72–74; negotiation strategies of, 58; power of, 62; scientific capacity in, 114–115. See also South, recommended negotiation strategy for South Africa, 32 South, recommended negotiation strategy for, 58–72; adopting modular approach to negotiation, 71–72; developing constituency, 68–69; developing coordinated strategy, 66–68; invoking North’s self-interest, 60–61, 65–66; maintaining objectivity, 63–64; redefining agenda, 64–66; redefining power balance, 61–63; taking domestic action, 69–71 “South Secretariat,” setting up of, 67 South-South cooperation, 69, 123 sovereignty: and compliance, 247–248; and enforcement, 373 Soviet Union: in Antarctic Treaty, 31; boycott of UNCHE, 45–46

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464 species introductions, 361–362. See also bioinvasive species stakeholders: access to information, 206, 226; impact on corporate environmental reform, 86–87; and self-enforcement, 37–38 standing rights, broadening of, 235–238 states: and commons, 29, 156; ineffectiveness of, in implementing environmental agreements, 267; number of, in integrative model, 324–325 Stockholm Summit. See United Nations Conference on the Human Environment (UNCHE) storage, of renewable energy sources, 286 structural change, 61; as South’s common issue, 69 subsidies, for nonrenewable energy sources, 282, 285, 288, 289, 290 SUSTAIN (definition of CMH): applying damage component of, 13; defined, 6; multilateral agreements based on, 17; variable factors for, 9–16 sustainability: and fossil fuel use, 284; and global economy, 6–7; intergenerational, 6; SouthSouth cooperation on, 69 sustainable development: linkage with global change, 336, 343–344; and public-private partnerships, 356; as remedy to structural incongruence, 342–343 sustainable yield, 111 Taiwan, nuclear waste dilemma in, 377 technology sharing: clearinghouse for, 265; for nonrenewable energy, 296 technology transfer: affirmative action science and, 124; linkage to capacity building, 321; South-South cooperation on, 69 theory builders, 132–133 theory testers, 132 33/50 Program, 95 time, discounting of, 9 timing, of SPIPs, 146 toxic compounds, inventories of, 95

Subject Index toxic waste disposal. See hazardous waste disposal; nuclear waste disposal trade sanctions, 203 trading, between issues, 63, 65–66 “tragedy of the commons,” 5, 26 transparency. See accountability and transparency transportation of pollutants, transboundary, nonrenewable energy sources, 282–283 treaty-making system: new global strategies for, 277–278; shortcomings of, 201, 393–394 trend spotters, 132–133 tributylin (TBT), 364 trust: building of, in meetings, 218–219, 225; environmental issues as means of building, 415–416 turtles, 421–422 United Kingdom, media coverage of environmental issues in, 175–192 United Nations: and enforcement, 37–38; and North-South alliance building, 167; resolution 2398 (XXIII), 50; resolution 44/228, 50, 51; unsuitability for monitoring worldwide environmental regimes, 25, 29–30 United Nations Conference on Environment and Development (UNCED) (1992), 42–52; and access to environmental information, 318–319; compared with UNCHE, 46; and information technology, 202, 207–208; poor NGO interaction at, 158; South’s agenda at, 45–48, 51; South’s expectations of, 43–45; South’s negotiating strategy at, 56 United Nations Conference on the Human Environment (UNCHE): compared with UNCED, 46; as forum for basis of NIE(co)O, 53; South’s agenda at, 45–48; Soviet bloc boycott of, 45–46 United Nations Convention to Combat Desertification, capacity building in, 256

United Nations Environment Program (UNEP), mission of, 338 United Nations General Assembly, Resolution 1990/41, 406–407 United States: in Antarctic Treaty, 31; corporate action on GHG reduction in, 269–270; government-generated voluntary management codes, 94–96; media coverage of environmental issues, 174–192; nuclear waste disposal in, 378– 379; opposition to GHG emission targets, 130; power in global environmental politics, 354; price controls for nonrenewable energy in, 282; push for joint implementation transfer programs, 14–15; transferable discharge permit system of, 14 usufruct, right of, 27 value creation, 219–220, 296–298 value-free science, 109, 122, 131, 141; illusion of, 143–145 variable factors, for CMH definitions, 9–16 verification, principle of, 122 Vernetztes Denken (“wired thinking”), 148–149 vested interests: and access to environmental information, 319; and information technology, 222–223; in science, 116–117 voluntary management codes: benefits of, 91–92, 104–105; corporate response to, 99–103; in Europe, 93–94; private, 96–98; and public demand for corporate responsibility, 92–93; public reaction to, 98–99; United States governmentgenerated, 94–96 vulnerability, as South’s motivating force, 54 war. See armed conflict waste colonialism, 383–384 web pages, 220–221 white-naped crane, 420 zebra mussel, 363 zero-sum games, 312–313

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