1. Ph.D Environmental Policy
NEGOTIATION OF MULTILATERAL ENVIRONMENTAL AGREEMENTS (MEAs)
October 2014

2. MEP 805: International Environmental Governance
Adapted for:
MEP 805: International Environmental Governance
University of Nairobi
This course was developed in cooperation with the IUCN Academy of Environmental Law

3. What is an MEA?
Binding international agreement between two States (bilateral) or between three or more States(multilateral) committing to achieve specific environmental goals
Can be stand-alone; e.g. Convention on International Trade in Endangered Species (CITES)
Can be framework agreements (e.g. Vienna Convention for the Protection of the Ozone Layer)
Binds only parties, but can affect non-parties (for example, through trade bans under CITES)

4. The Process of MEA Development
Pre-negotiation
Negotiation
Adoption & signature
Ratification and accession
Entry into force
Withdrawal from MEA 4

5. Pre-negotiation (International)
Identification of a global environmental problem that warrants joint international action
Start with informal consultations at international/regional level
Scientific analysis: key component of pre-negotiation analysis
Scientific body may be created to investigate problem (e.g. Inter-governmental Panel on Climate Change (IPCC))
Role of understanding in committing to move forward (contrast ozone depletion and climate change) 5

6. Pre-negotiation (International)
Possible catalytic role of organizations such as:
UNEP (e.g. UNEP Governing Council decisions to launch negotiating processes)
United Nations Development Program (UNDP)
IUCN (e.g. work by the IUCN Environmental Law Centre and specialist groups of the IUCN Commission on Environmental Law to suggest new MEAs)
Economic and Social Council of the United Nations (ECOSOC)
Commission on Sustainable Development (CSD) 6

7. Pre-negotiation: National Level
States need to assess:
Capacity and needs
Potential implications for implementation and enforcement at the national level
Of the issues that will be negotiated, which are the most important and what are the viable options for addressing those issues?
May include sustainability impact assessment
e.g. European Union’s Trade Sustainability Impact Assessments, which assess the environmental, social and economical effects of potential agreement 7

8. Pre-negotiation: National Level
In order to consider becoming involved, States need to review:
Existing legal, regulatory, and institutional frameworks
The existence of any other binding or non-binding international agreements dealing with a related issue and implications of becoming Party to another agreement
Perspectives of various stakeholders (e.g. State or provincial governments, where relevant; non-governmental organisations (NGOs), private sector interests) 8

9. Pre-negotiation: National Level
States need to develop a national position
Ideally with the involvement of all relevant national stakeholders (including State or provincial governments, NGOs, private sector, etc. in the development of national positions)
Create a forum for discussion and consultations before a national position is prepared
Appoint a delegation
Mobilize a negotiating team with various skill sets
May include representatives from NGOs, private sector, or sub-national governmental bodies
Size often dependent on funding (internal and external) 9

10. Negotiations (1) Preparation of briefing notes
Development of briefing statement
Establishment of negotiation structure (e.g. Intergovernmental Negotiation Committee (INC)) to draft & adopt MEA
INC to consist of representatives of:
governments
intergovernmental organizations
major groups (non-governmental organizations, businesses, labor organizations, etc.) 10

11. Secretariat for administrative and logistical matters
Negotiations (2)
Establishment of Preparatory Committees (PrepComs) to address issues related to procedure and substance
Secretariat for administrative and logistical matters
Secretariat often drafts first version of MEA for discussion and negotiation
Ad hoc conference(s) may be organized by INC
INC may establish subsidiary bodies such as a Bureau and procedures for negotiations 11

12. Negotiations (3)
Plenary session for formal negotiations of less complex and controversial issues
More complex issues referred to contact groups, subsidiary bodies, and working groups 12

13. Negotiations (4)
States often form coalitions of States that have the same interests (issues or politics); this is called a “negotiating bloc”
Necessary when many States participate in the negotiations
Helps to manage the process by decreasing the number of negotiating groups
Can increase leverage and decrease costs for small and developing countries
Can advance agendas and break or modify agendas
Disadvantage: it is difficult to move between coalitions and difficult to shift from a consensus point once its taken 13

14. Participants may make oral interventions concerning:
Negotiations (5)
Participants may make oral interventions concerning:
Country positions (including protocol regarding relationship to negotiating bloc positions)
Constraints (e.g. time limits)
Points of order & motions 14

15. Negotiating strategies:
Negotiations (6)
Negotiating strategies:
Distributive
Integrative
Negotiations may result in Statement of the Chairperson, resolutions, conclusions, recommendations, and formal decisions 15

16. Adoption and Signature
Upon agreement, the final text is signed and adopted at the diplomatic conference or conference of plenipotentiaries (i.e. representatives acting with full authority of their governments)
Signature by a State authenticates the text as the one finally agreed upon and indicates consent to content of negotiations and commitment to the object and purpose of the MEA
Legally, this means that the State agrees not to undermine the MEA
Signature must occur within the time period that the MEA is open for signature
Time frame is specified in the text of the MEA 16

17. Reservations to Treaty
When a State becomes Party to MEA, but on condition that certain provisions do not apply
MEA may allow it, but in strict accordance with provisions of Convention (e.g. Art 309 of UNCLOS)
“No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention”
More recent MEAs do not allow reservations (e.g. Vienna Convention, Montreal Protocol, Basel Convention)
Some are silent (e.g. Espoo Convention) 17

18. Ratification and Accession
States are bound when they become Party to an MEA
A State becomes a Party by:
Ratification (by signatories): legislature/executive consents to treaty
Acceptance or approval: used when ratification is not explicitly provided for
Accession: occurs after the MEA comes into force; for those States which did not sign agreement when it was open for signature 18

19. May be linked to mandatory participation of certain parties
Entry into Force
Conditions for entry into force agreed to by Parties in the text of the MEA (during negotiation)
Usually based on certain number of parties (i.e., ratifications, accessions, acceptances, and approvals)
may also have other requirements (e.g. Kyoto Protocol)
May be linked to mandatory participation of certain parties
For example, the Kyoto Protocol required:
Ratification by at least 55 Parties to the UNFCC, and
Ratification by Annex I Parties representing at least 55% of carbon dioxide emissions by all developed country Parties 19

20. If the MEA does not allow for withdrawal
Withdrawal from an MEA
If an MEA allows for withdrawal, a State may withdraw from (denounce) the Agreement following the procedures set forth (e.g. notice period)
If the MEA does not allow for withdrawal
withdrawal is possible only if it can be shown that the Parties intended to allow for withdrawal, or right of withdrawal can be implied from the agreement 20

21. Amendments/Decisions
The scope of an MEA may be adjusted by way of an amendment or decision
e.g. CITES requires a decision of the Conference of the Parties to list a species on its Annexes
Some MEAs require 2/3 majority (e.g. Montreal Protocol or CITES), while others require consensus (e.g. Kyoto Protocol)
Amendment may require ratification
If amendment is insufficient, a new agreement or protocol may be necessary (e.g. Biosafety Protocol to the Convention on Biological Diversity (CBD) 21