New Three Stage Process

I recommend that the UN General Assembly adopt a new approach to environmental treaty making that will systematize environmental treaty negotiations and synchronize global expectations.4 More specifically, all countries should be able to rely on the fact that global environmental treaty making will move through a predictable three-stage process with explicit time limits and voting requirements. (See Table 4).

Stage I should focus primarily on scoping the threat and defining the

Table 4 A New Three-Stage Global Environmental Treaty-Making Process

Stage/Purpose

I. Scoping the threat and defining the key principles that will be applied in formulating a global response.

II. Agreeing on general commitments, specific commitments, financial arrangements, institutional arrangements, reporting and monitoring requirements. Formulating multiple protocols with clear triggers.

III. Reviewing the results of the Stage II treaty and tightening all elements of the treaty and the protocols.

Time Allotted

Six months from the time that 50% if the General Assembly (GA) agrees to begin.

Twelve months to start after Stage I is completed; twenty-four months to finish once negotiations begin; stop for twenty-four months if unsuccessful.

Stage III would run for three years after signing; parties would then meet again to tighten all elements and provisions of relevant protocols; continued review and further amendment always possible.

Vote Required

50% of the General Assembly to begin; 50% of the GA must agree to go on to Stage II.

50% of those who begin Stage II must ratify for it to come into force; if negotiations stop, 50% of all GA members must vote to resume.

66% of those who ratified Stage II treaty must agree to tightening amendments; delay for twenty-four months if unsuccessful; 50% of all signatories must agree to restart Stage III tightening effort.

Product

Report of scientific findings; statement of principles; signed agreement (no need to ratify).

Signed convention and multiple protocols (must be ratified).

Amended convention and amended protocols (no need to ratify).

key principles (for example, the precautionary principle, the "polluter-pays" principle, the principle of sustainability, the principle of addi-tionality in the allocation of aid) that will be applied in formulating a worldwide response to a specific problem. Each time fifty percent of the United Nations member countries agree that a risk or a threat needs to be addressed, a Stage I treaty-making process should be initiated by the UN Administrative Committee on Coordination. Stage I should be limited to six months (that is, from the time that 50 percent of the members indicate a willingness to go ahead). The goal should be a written document that summarizes the scientific basis for regarding the risk as serious and enumerates that principles that will guide the global search for an appropriate response.

Assuming Stage I is successful, Stage II should begin within one year of the time Stage I was initiated. Stage II should focus on the general commitments that signatories will be expected to make (such as a promise to change certain domestic policies or participate in collaborative research efforts); specific commitments that will apply to various categories of countries (that is, timetables, targets, and so on); financial arrangements that indicate who will contribute and who will receive how much money (or technology); institutional arrangements, including the designation of a secretariat, aimed at ensuring effective implementation; and reporting or monitoring requirements by which signatories will be expected to abide. All other aspects of the treaty (described in Table 2) such as the timing and mechanisms for ratification, dispute resolution techniques, and reconvening procedures should be standardized. The goal, again, should be a written document that goes beyond most framework conventions in specificity.

Negotiation for a Stage II treaty should have a tvventy-four-month time limit. If fifty percent of the UN General Assembly members who begin the Stage II negotiations do not accept the result of a two-year effort, treaty making on that subject should be curtailed for at least two years. At that time, an effort could be made to start, again, if enough countries concur. The point is to cut off unproductive negotiations. Although this might appear to undercut environmental protection objectives, I think it will create tremendous pressure on the treaty advocates to work as hard as possible to meet the legitimate concerns of those who have doubts about the need for or the efficacy of a proposed new treaty. Explicit timetables and voting requirements will clarify exactly where negotiations stand at every point. The fifty percent voting required will ensure the credibility and legitimacy of the agreements that do emerge.

Assuming there is support to move forward, UN members agreeing to the Stage II treaty draft would negotiate and ratify multiple protocols, as well as describe various actions that would be taken in the future if the threat or problem disappeared or worsened. Ratification of the Stage II treaty draft plus the protocols would trigger the beginning of Stage III.

Stage III would last three years and focus on annual reviews of the reporting and monitoring results of the first several years of implementation. This would lead to recalibration of all six elements addressed in Stages I and II. A Stage III three-year learning effort would lead to treaty tightening. Stage III should run for thirty-six months after the signing of a Stage II treaty. It should occur only if two-thirds of the Stage II signatories vote to initiate a Stage III effort. If two-thirds of the countries involved at that point cannot agree, Stage III should be curtailed for at least twenty-four months, and reinstated only if at least fifty percent of all UN members agree to restart the process. Again, this will pressure those who want to move ahead to search for an acceptable formula. The product of Stage III would be a tightened treaty with a revised set of protocols to guide implementation.

Stage III treaties should contain multiple protocols (that is, contingent sets of requirements) with clear "triggers." These requirements would be revised after several years of monitoring the results of Stage III and thus would be easier to support than hypothetical requirements contained in current framework conventions. Stage III treaties would also include provisions for continued review and amendment, but these would be more likely to produce real results more of the time than the products of the existing convention-protocol system.

Such a three-stage system would have to be carefully managed, perhaps by an adequately staffed Commission on Sustainable Development, or perhaps by UNEP. It would require the full support of the UN secretary general and the General Assembly. It would allow appropriately linked treaties to be taken up simultaneously, and require capable secretariats to handle all aspects of Stage III treaty-tightening negotiations, including mediation if necessary.

A synchronized, coordinated system of this sort would allow countries and nongovernmental interests to marshal their resources so that they could participate in those aspects of specific treaty making most important to them. It would avoid the confusion and confrontation that surrounded the Climate Change, Biodiversity, and Forest negotiations during the Earth Summit. Prior to the Rio meeting, some countries (especially in Europe) were holding out for the equivalent of a Stage III climate-change treaty—including the broadest possible set of principles; requiring rigorous general and specific obligations; seeking full funding for a set of elaborate financial arrangements; creating a new institutional framework for implementation; and calling for elaborate reporting and monitoring requirements. The United States and several other countries were more interested in something closer to a Stage I treaty, with no specific obligations, no new financial requirements, and no new institutional arrangements.

Right up until the Earth Summit, the Europeans declared that they would accept nothing less than what I am calling a Stage III treaty. Indeed, a number of European leaders indicated that they would prefer to have no treaty at all rather than let the United States have the watered-down version (that is, a Stage I-type treaty with no targets or timetables) for which it was pushing. The United States insisted on the equivalent of a Stage I treaty or nothing, and without the financial commitment of the United States, a basic bargain was out of reach.

The three-stage approach I am recommending would avoid this kind of confrontation, and permit step-by-step movement on a predictable schedule toward the best possible treaty or package of treaties. As it stands now, we have no idea when or whether there will be follow-up protocols to the Climate Change Convention. Although the agreements signed in Rio call for a follow-up conference of the signatories by 1999 (to review national reports on what countries are doing to reduce the emission of greenhouse gases), there is no guarantee that fifty nations will actually ratify the treaty or that when they do meet, there will be scientific evidence that allows them to "fall forward" to a binding set of emission targets and timetables. For all we know, the Earth Summit might mark the last worldwide effort to push for sustainable development. A more predictable schedule and voting system would guard against this possibility.

The most important differences between the traditional convention-protocol approach as it has evolved over the past decade and the three-stage process I am proposing have to do with predictability. The three-stage process would operate on a schedule that everyone would know ahead of time. The votes required to move through the process would be clear (and decisions would not require unanimity). The elements included in each treaty would not vary, nor would the criteria for measuring adequate progress (or for halting the treaty-making process). Greater predictability would allow the United Nations, all of its members, and nongovernmental groups interested in participating in treaty making to target their resources, organize their preparatory and coalition-building efforts, and anticipate potential linkages among treaty-making efforts scheduled during the same window in time.

Let me anticipate several challenges to my three-stage process. First, some participants will argue that the schedule I propose is artificial, and that the current open-ended process provides helpful flexibility. They prefer to let each treaty-making effort run its course. My view is that we pay too high a price for such flexibility. Prior to the Earth Summit, the complaint was that treaty making took too long—often a decade or more from the point at which scientific meetings started until the first round of treaty tightening produced a meaningful protocol. Preparations for the Earth Summit went too fast, allowing to little time for consensus building on a range of meaningful commitments (for example, timetables, targets, and financial arrangements). The schedule I describe, or something like it, offers a reasonable middle ground.

Some nongovernmental organizations will suggest that the voting thresholds I am suggesting may bring a halt to all environmental treaty making. They are willing to continue the current practice of having only small groups of countries work on and sign certain conventions so that there is at least some action in the face of significant threats. I am more concerned than they are about the implementability and effectiveness of treaties that do not represent genuine commitments by large segments of the world's population.

Finally, there are likely to be critics of the three-stage process who will argue that what I am proposing is not that different from the current treaty-making system. It still presupposes national sovereignty and a continuation of the one-country, one-vote system in the United Nations. It offers no guarantee of collective action in the face of serious threats. It still presumes five to eight years will be required to build support for the equivalent of tightened protocols. These criticisms are correct, but they underestimate the significance of the key differences.

The synchronization of worldwide expectations and adoption of the three-stage approach would accomplish three important goals. First, the all-or-nothing quality of the Rio debates would be avoided. Because the steps in the process would be clear (and the later phases and voting rules inevitable), countries would not have to be so demanding in the early stages of treaty negotiations. The Climate Change Convention was almost scuttled because too many battles were being fought by countries that thought they had to win all their key points in this one negotiation (for fear there might not be subsequent negotiations on global warming). Second, the three-stage approach facilitates issue linkage and encourages adoption of contingent protocols. Without a clear picturc and overall management of the broader treaty-making agenda, effective linkage and contingent protocols are much harder to achieve. Finally, the three-stage process creates an explicit collaborative learning process. The primary function of monitoring is for treaty adjustment and improvement rather than ensuring compliance. This creates a more constructive environment and ought to improve working relationships.

The three-stage process addresses the North-South split by making an overarching global bargaining effort possible. A more predictable and or ganized treaty-making system will make this metalevel of negotiation more explicit. The three-stage approach addresses the sovereignty issue by making it easier for nongovernmental organizations to participate effectively in treaty making. Moreover, many smaller countries should be less defensive because the voting thresholds guarantee that a few large countries will not be able to bully them or go ahead without them. The three-stage process increases the incentives to bargain, in part, because the risk of being co-opted is less when the steps and voting thresholds are explicit. In part, participating in Stage I negotiations requires no prior commitment to join Stage II. More countries will have a chance to learn about possible environmental threats and address larger questions of principle without having to make any commitments or implied commitments to take action.

A move to the three-stage process will do two other things. It will strengthen the hand of secretariats by giving them a clear mandate and making it clear that consensus-building is the goal. It will also make it easier for the UN secretary-general to maintain a five-year management perspective on negotiations concerning global environmental treaties. Now, because of the haphazard nature of the treaty-making process, scheduling and budgeting are next to impossible.

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