The role of process and participation in the development of effective international environmental agreements: a study of the global treaty on persistent organic pollutants (POPs).

• Jurisdiction: United States
• Author: Lallas, Peter L.
• Date: 22 June 2001

I.

INTRODUCTION

The number of treaties in the environmental field has grown markedly in the past thirty years,(1) as people and societies have become increasingly aware of, and concerned about, the health of the global environment. Studies of these treaties have considered a number of questions relevant to their effectiveness. Some offer an in-depth review of key factors and personalities leading to finalization of a treaty, in essence setting forth its storyline.(2) Others identify important tendencies and difficulties present in negotiating treaties, such as the tendency to slide toward a lowest common denominator or to face long time lags before implementation.(3) Others emphasize a regime-oriented, problem-solving approach, and focus upon how key elements in a particular treaty regime generate -- or fail to generate -- incentives to change behavior in response to global environmental problems.(4) Some highlight questions of compliance and implementation, looking into other fields of public international law as potential models,(5) while others focus upon the role of international institutions.(6)

Questions relating to the process of treaty-making, including who participates in that process, certainly are not absent from these studies. In recent years, however, these questions are emerging more prominently as a focal point of analysis.(7) One explanation for this, perhaps, is that the growing level of experience in the field now presents a stronger basis to examine process and participation themes. In addition, because the subject matter itself yields "substantive" issues that are both important and complex -- e.g., what normative standards should apply to address transboundary pollution -- matters of "process" might sometimes have received less consideration.

Yet another explanation is worth considering. Public international law, and foreign policy more generally, have well-established histories and traditions about institutions and process. There are conventional understandings and experiences with the process of diplomacy, how nations interact with each other and what the (limited) role is for international organizations and the public in this context. In the traditional model, international law is a law of nations. Governments, not individuals -- nor nongovernmental organizations -- have rights and are subject to obligations (e.g., under a treaty) in this model; they are the actors on this stage. Countries and regions have developed long-standing working relationships within this basic framework, and have created international organizations to facilitate and support their efforts.

Today, some of these traditions and understandings are being challenged. One of the most dominant claims from the street protestors in the "battle in Seattle" in November 1999 (that accompanied the meeting of World Trade Organization (WTO) ministers in Seattle, Washington) was that the international trading system was making decisions that affect people's lives without allowing members of the public an opportunity to see and participate in the decision-making process. Many images have been displayed either of national government representatives or "faceless" international officials making decisions in secrecy and without accountability, including decisions that yield inaction on important matters. Similar concerns have been voiced over the years with regard to activities of other international organizations, such as the World Bank. Policymakers now devote significant attention to the nature and scope of public participation in the international policy process.

Significant questions also exist about the extent to which all governments, especially those representing smaller countries, can participate effectively in international initiatives. These questions involve not just the formal rules of participation but resource constraints and other practical realities as well. Just as the issue of capacity among countries is relevant to the development of norms in international environmental treaties,(8) so too is it relevant to the question of how countries participate in treaty initiatives.

These questions of process and participation are central to understanding the development of a new treaty receiving priority attention in the environment field, the global treaty on persistent organic pollutants (POPs). The negotiation of this treaty, completed in December 2000 in Johannesburg, South Africa, has emerged as a center-stage activity on the global environmental agenda. The POPs treaty is designed to severely restrict and/or eliminate the production and use of a number of particularly dangerous pesticides and industrial chemicals, to take strong action against certain by-product contaminants of industrial and other activities, and to ensure the safe and proper disposal or destruction of such substances upon becoming wastes. Nations have agreed to focus initially upon a list of twelve substances of immediate concern, including DDT, PCBs, and dioxins(9) and have included within the treaty a set of criteria and a process for adding new POPs to the regime at a later date.

Experience to date indicates that a number of factors have been relevant to the outcome and (in the eyes of many) success of the POPs treaty negotiations. While several of these will be touched upon below,(10) the central focus of this paper relates to how aspects of process and participation have influenced the development of the treaty and will affect its implementation.

The discussion is divided into several parts. Part II begins with a review of events and considerations leading to the negotiation of the POPs treaty (the "pre-negotiating phase"). These include the evolution of public concern over POPs at national and international levels, the scientific foundation for these concerns, and the actions leading to a mandate to negotiate. Part III follows with a detailed description of the structure and process of the negotiations themselves, including how meetings were conducted, who participated in them, and the types of contributions of various participants in the negotiating sessions.

Part IV then identifies and analyzes key aspects of this overall treaty process, and raises several issues for consideration. The discussion focuses upon: the significant role of non-governmental participants and of international organizations in the treaty process; practical issues and imbalances relating to participation by governments in this process, and steps that can be taken to address these issues; and the importance of certain key (and sometimes seemingly mundane) decisions regarding the scope, nature, timing and format of the actual negotiations. Part V closes with a brief comparison of how the basic rules of participation work in another field of international law, the international trading system.

An underlying consideration of this discussion is that the ground rules, and the practical realities, relevant to issues such as public and government participation in treaty negotiations not only are changing, but are perhaps not well known to many outside the negotiating circles. These (evolving) rules and realities yield many benefits, but also raise important questions.

For example, members of the public representing a wide variety of non-governmental organizations (NGOs), indigenous communities, industry and other interests were directly involved in the POPs treaty negotiating process, and played a significant and often catalyzing role in the events leading up to this process. Part IV identifies several "functions" or "roles" played by these participants in the process, and notes the many benefits to the treaty process of this high degree of public involvement.

At the same time, several questions are considered. For example, according to what procedures and criteria do members of the public become involved in international negotiating sessions? Are there sufficient opportunities to become involved in the process or, conversely, are there any limitations that are or should be imposed on such participation? Is participation "balanced" among competing interests and constituencies? Is there a difference, for example, between participation by non-profit organizations and business or other entities with a commercial stake in the outcome of the process? Or by participants from industrialized versus developing economies? How are negotiating outcomes affected?

Similar issues arise with respect to public involvement at the implementation stage. These issues are of particular importance given concerns that exist as to whether international agreements are well implemented and enforced.(11) It is argued below that enhancing the public role in implementation offers significant opportunities to strengthen implementation of treaties. The potential contributions of international organizations to facilitate and advance work relating to a treaty also are considered.(12) These approaches, however, raise their own set of issues and questions -- which, at their core, involve who after all it is that sets and carries out the international environmental agenda.

The discussion of these questions of process and participation is framed within the larger context of an ongoing evolution of the basic ground rules over who participates in the making and implementation of international law. In past years, for example, members of the public -- and not just states -- have begun to obtain rights and obligations in certain fields of international law, notably in the human rights field(13) and under international investment agreements.(14)

As illustrated by the POPs treaty process, the field of international environmental law is in some respects situated at or near the forefront of this evolution, at least with respect to how treaties in this field are negotiated. Many of the basic principles on environment and development adopted by the international community at the 1992 Rio Earth Summit (the...