1 August 2006
AVERTING OSSIFICATION IN MEAs1
By Joanna Depledge, Sutasoma Research Fellow, Lucy Cavendish College, University of Cambridge
Regimes under MEAs, like all multilateral regimes, are prone to ossification. An ossifying regime is one that is no longer learning and evolving over time, but has instead become stuck in longstanding debates that never seem to advance, and dysfunctional, suspicious political relationships. Regimes launched in a blaze of dynamism and high expectations find it painfully difficult to take even the smallest steps forward. Substantive decisions are continuously postponed in favour of empty rhetoric or “agreement to disagree.” Old text is repeated and recalled because nothing new can be approved. New ideas or information fail to meaningfully penetrate discussions.
Readers may recognize some of these symptoms in regimes they are familiar with. In the climate change regime, deep mistrust between the G-77 and industrialized countries has hardly waned over the years, and has turned the formal discussion of new commitments for developing countries into almost a taboo topic. Substantive action on several issues, such as emissions from international aviation and marine transport, is postponed session after session, due partly to deliberate obstruction by some parties. Items are routinely held “in abeyance” – neither accepted for discussion nor deleted from the agenda – and the same controversies are rehearsed over again on longstanding agenda items. The desertification regime is also threatened with sclerosis, due largely to contrasting perceptions of the purpose of the UN Convention to Combat Desertification (UNCCD), which underpin the tense relationships prevailing between developing countries and donor nations. Stalemate has descended in a number of substantive areas, notably a very longstanding dispute over the establishment of Regional Coordination Units.
Similar underlying divisions have plagued the forestry regime under the UN Forum on Forests (UNFF) and its predecessors, with the main divide here between those delegations wanting a legally-binding instrument on forests, and those preferring a much lighter approach. This division has reduced the UNFF to little more than a talking shop, and prompted threats by some countries to leave the regime altogether. Such threats have also been issued in the whaling regime under the International Whaling Commission (IWC), which, in a pattern similar to the UNFF, is sharply divided between pro-whaling and anti-whaling nations. Although both the UNFF and the IWC carry out valuable analytical work, their central political dynamics have long stagnated. The term stagnation will no doubt also resonate with observers of the Commission on Sustainable Development (CSD), where it is becoming increasingly difficult to identify genuine progress in debates, and remarkably similar speeches are delivered time and again.
It is worth underlining that ossification is not necessarily all-encompassing. Certain issues, debates or relationships may have utterly stagnated, while pockets of learning and dynamism may persist elsewhere. In the climate change regime, for example, the innovative clean development mechanism (CDM) is clearly learning from experience after a shaky start, and is evolving into a major force in tackling emissions in developing countries.
Although each regime is different, the examples given above suggest some common causes behind the onset of ossification. A regime is particularly vulnerable where parties hold fundamentally different views on its very nature and purpose, leading to the polarization of debates. Frequently related to this is the deep political divide that so often exists between developing and industrialized countries, chiefly over financial and technological assistance, and responsibility for addressing the problem under negotiation. Another element that can lean a regime towards ossification is deliberate obstruction by parties who do not want the negotiations to progress. The climate change regime in particular has long suffered from obstructionism, principally by a small group of oil-exporting developing countries. Even without obstructionists, rules requiring consensus for most substantive decision-making also make for slow progress2.
Other factors can also contribute to ossification. One is the inherently complex and burdensome nature of large, multilateral negotiations, which take place among individuals with very different cultures, languages and political ideologies3. This inevitably makes for difficult communication, and misunderstandings easily arise. Another is that delegations to many environmental negotiations still tend to be dominated by environmental ministries, rather than the economic ministries that really matter in terms of implementation. Staying with the theme of delegates, an uncomfortable question is whether the continuous round of negotiations that is now standard in environmental regimes may have spawned the emergence of a cohort of bureaucratic negotiators, who – though acting in good faith – may have become more focussed on smooth process and procedure, than on substantive action. For longstanding delegates intimately caught up in a negotiation for many years, expectations may have dropped to such an extent that just continuing to talk, agreeing to disagree, and issuing eloquent rhetoric has become an acceptable outcome.
Another potential explanatory factor could be difficulties associated with the stage of negotiations. Research has shown how regimes are more prone to stagnation, and negotiations tend to become more difficult, after the regime has become well-established4. These subsequent negotiations often have to deal with more difficult issues, which earlier negotiations deferred to later rounds. Similarly, subsequent negotiations must implement or interpret earlier agreements that may have been drafted in deliberately ambiguous language. The inherent dynamics of negotiations can exacerbate this tendency to backload difficult issues. Negotiations are based on the forging of compromises, which, by their nature, tend to leave all negotiating partners dissatisfied. Very important issues can thus fester over time and generate ever more acrimonious conflict. Some regimes may therefore be descending into ossification precisely because they have reached a “crunch point” where the simpler, less contentious decisions have been taken, leaving the harder, more controversial issues more starkly on the table.
What can be done to tackle ossification – better still, to stop it from happening in the first place? If a regime is falling into a rut, it needs some kind of change to propel it back onto a learning path. Changes in the geopolitics of the issue – the rise of new leadership by a powerful delegation, for example, or an external shock that boosts a sense of political urgency – are almost impossible to engineer. Other radical procedural changes – altering decision-making rules to allow for more voting, for example – might be attractive in theory, but politically very difficult to implement.
Among the more palatable and pragmatic changes that are possible is the invention of new spaces for delegates to explain their concerns and exchange ideas in a less confrontational and more informal environment. In the climate change regime, for example, the paralysing controversy surrounding future commitments has been softened – to some extent – by diverting the issue into more informal, high-level arenas. It is important, however, to avoid such alternative spaces becoming just that – an alternative to real negotiations, rather than a catalyst for them. An interesting case where a new negotiating space succeeded in restarting an ossifying negotiation is that of dumping in the North Sea. Here, the convening of International North Sea Conferences as additional arenas to the stalled Oslo Commission resulted in important breakthroughs in the late 1980s5.
Bringing in new voices by allowing more extensive input from outside organizations – including business groups, academics, environmental NGOs and even other IGOs – can also inject fresh thinking to help unblock governmental negotiations. In a similar vein, a regime can seek help from an outside authority. The UNCCD, for example, requested the UN’s Joint Inspection Unit – in this context, a neutral outsider – to review the activities of the Secretariat, a longstanding bone of contention in the regime. The result was a thoughtful and objective analysis of the desertification regime’s problems6, which could still provide a basis for defusing the polarization of positions in that MEA.
As well as finding new spaces and voices, taking the bold step of (explicitly or implicitly) abandoning old debates that are going round in circles could also be salutary. Long-debated concepts and words can acquire such political sensitivity over time that they stifle any progress on the underlying issues. Reframing these underlying issues in new ways using new language can breathe fresh life into stalemated debates. In the climate change regime, for example, the term “joint implementation” was so controversial during the Kyoto Protocol negotiations that it prevented any kind of negotiation on the ideas that lay behind it. In the end, informal exchanges triggered the new concept and language of the CDM. This proved much more acceptable, although in essence it dealt with the same issues that underpinned joint implementation. Thinking “outside the box” in this way can help to bypass unproductive political controversies.
The tendency to ossification due to the sheer complexity of the negotiations could also be abated through the prioritization of issues and better organization of the agenda. The huge number of agenda items, documents and meetings that negotiators often face can be overwhelming. Delegations spread themselves too thinly, fail to negotiate efficiently, and the result can be paralysis. A review of the negotiating agenda could also help those regimes whose very nature is under dispute. The decision by the UNCCD to develop a long-term strategic plan, as recommended by the UN’s Joint Inspection Unit, is a potentially positive step in this regard. Prioritisation and re-organization of issues, however, can itself prove very difficult, given the inevitably differing priorities of delegations. The climate change parties, for example, have proven averse to streamlining the staggering number of items on their agenda.
Another possibility is for delegations to include more individuals from the economic, financial and planning ministries who take the day-to-day decisions that impact on the domestic implementation of MEAs. This is not to diminish the vitally important role of environmental ministries and foreign offices, but recognising the multi-faceted character of environmental issues while they are under negotiation would certainly help at the implementation stage. This would, in turn, feed back into more productive negotiations. More intensive and meaningful involvement of ministers – not just for speech-making at staged ceremonial events – could also infuse new political momentum into negotiations. All too often, until the very last minute, talks are conducted among officials with little power to take bold, imaginative decisions, at which point ministers have precious little time to get to grips with the difficult issues at stake. Raising the level of representation at the above-mentioned International North Sea Conferences, for example, contributed to their success.
Taking a different tack, is also worth pondering whether a period of ossification may not be part of the natural lifecycle of regimes. Negotiation fatigue is a very real phenomenon, and regimes may simply need to “catch their breath.” Moreover, periods of ossification in regimes are often accompanied by the flourishing of initiatives in the “outside world” – by NGOs, businesses, academics, municipalities, IGOs, even pioneering national governments – who may take over from the regime as the main sources of dynamism and learning on the issue in question. By way of illustration, the proliferation of initiatives outside the UNFF on sustainable forest management, and outside the climate change regime on reducing greenhouse gas emissions, contrast sharply with the ossification tendencies in those regimes. NGO-run forest certification schemes, for example, are making a growing contribution to sustainable forest management, while certain regional and industry-led emission trading systems are years ahead of that under the climate change regime itself. Ossification in the formal regime may even be necessary to allow national governments and other domestic actors to catch up, that is, to understand and implement (or perhaps to reject) the developments in the regime.
In summary, it should not be assumed that regimes under MEAs will inexorably progress and learn over time. On the contrary, they can go through periods of ossification, where they seem to stand still – if not regress – in terms of political relationships, ideas and achievements. This may well be a natural stage in the evolution of regimes. The trick, however, is to ensure that ossification does not persist too long. There is much that can be done to help set a regime back on a learning path. All that is needed, as ever, is the political will to do so.
2 On consensus decision-making, see Haas, Peter M. 2002. UN conferences and constructivist governance of the environment. Global Governance, 8: 73-91. Also Yamin, Farhana and Joanna Depledge. 2004. The international climate change regime: A guide to rules, institutions and procedures. Cambridge: Cambridge University Press, ch. 14