International Public and NGO Management
Regime creation is the process of reaching international agreements. In this we will will look at the role of the Secretariat, member states and civil society. We will look at the cases of the negotiation of the global climate change convention and the Beijing Declaration and Platform of Action. The process is similar for other negotiations.
In one sense, regime creation is the oldest function performed by international organizations. They were often formed to provide a forum for negotiations on a given subject.
In the Nineteenth Century and early Twentieth Century, international agreements were reached by specialized negotiating conferences (e.g. the disarmament conventions negotiated in between the two world wars). Their secretariats were temporary, or were provided by the State hosting the conference. NGOs were largely absent.
As interdependence has increased, it is recognized that the negotiation process is not episodic, but is rather continuous. It usually involves a sequence of agreements, extending and deepening the regimes.
Recall what regimes are
Remember what was said during the second session: International regimes are
"a set of principles – explicit or implicit
– norms, rules and decision-making procedures around which expectations of
actors (States) converge in order to coordinate ators
behaviour with respect to a concern to them all."
Recall
again that the elements of regimes are:
Principles are beliefs of fact, causation
and rectitude.
This implies that a common understanding of
the nature of reality in a given subject matter is arrived at. It is a core
cognitive structure. Indeed, the first stage of regime formulation is to
determine the nature of the problem.
Norms are standards of behaviour
defined in terms of rights and obligations.
There has to be some agreement on what to do
about the problem, in terms of the actors involved. This is usually reflected
in the obligations that States agree to take on of a more general sort (ie. In human rights agreeements,
acceptance that the State will not discriminate on any of a number of grounds).
Rules are specific prescriptions and
prohibitions with respect to actor’s behaviour;
This is expressed in "should" and
"should not" statements on specific issues. For example, States agree
to reduce greenhouse gas emissions.
Procedures are the prevailing practices
for making and implementing collective choices.
This is the implementation machinery, in the form of intergovernmental decision-making bodies and secretariat structures. It is the creation of an institutional form for the regime.
Recall that regimes are intangible
and based on legitimacy
Therefore the pattern of negotiation is based on consensus. Failure to include all important players in the agreement can doom it to failure. Example: Taiwan is not a party to copyright conventions, therefore it could produce pirate software that undercuts the market. Syria, until this week, was not party to the Chemical Weapons Convention.
Consensus negotiation takes more time.
It also implies careful attention to language. What is agreed must be clearly understood by all parties in the same way and in their own languages. Regimes cannot be based on fuzzy language (since in any case, it could not be translated into the six official languages of the United Nations.).
Creation of regimes is a process
A regime is not created out of thin air or overnight. It is often a drawn- out process. And it is an on-going process as the parameters of the regime are modified and refined.
Parties to regime creation
Regimes have three classes of parties who, one way or another, have to be brought on board and who have influence on the outcome: governments, civil society and the secretariats. We should look at each, but we also have to look at them as a whole. Recently, the importance of non-State actors has been recognized in the concept of "multi-stakeholder governance" that was formally introduced in the Tunis Agenda adopted by the World Summit on the Information Society (WSIS) in 2005 and applied in the work of the Internet Governance Forum.
Governments.
These are clearly central to regimes, since it is governments (acting in the name of their people) who have to agree. Regimes are about State power and its regulation.
Governments, however, are not monoliths. They involve competing interests, even internally. Almost no governments have a unified foreign and domestic policy (although Japan and the United States try to). Their policies reflect an interplay of domestic and foreign policy, influenced by bureaucratic power as well as civil society.
The main players in specialized United Nations fora are line ministries (health to WHO, education to UNESCO, agriculture to FAO, state telecommunications companies to ITU, energy and defense ministries in IAEA). In most countries, foreign ministries and permanent missions to the United Nations are also part of the mix.
There are also interplays between institutions and individuals (a cabinet minister may want to gain a world stage by pushing for a particular issue).
Civil society
In most issues, there are non-governmental entities that have an interest. Sometimes they are international non-governmental organizations. Sometimes they are what Peter Haas calls "epistemic communities", loosely organized groups of scholars. Sometimes they are businesses and the private sector.
Often, because they can dramatize issues, they can help provoke the creation of a regime (since governments tend to be reactive rather than pro-active). Examples, Amnesty International raised the salience of disappearances as a human rights issue.
They can influence the process at both national (through pressure on government positions, as well as provision of information) and international levels.
Secretariats
Formally, their service is to facilitate negotiation. If that was all they did, they could be ignored (in the way a doorman at a hotel could be ignored in decision-making about the hotel).
In fact, they have an interest in the outcome and some power. The interest is:
Steps in the process
While any given regime can go through a variety of stages, there would seem to be a series of steps that have to be taken.
Step One: Raising the salience of a problem
There has to be a consensus that a problem exists and must be addressed.
The impetus can come from any of the three parties. A government or group of government, based on their interest and experience, may call for action.
Civil society may call for action in a field where governments have been loath to act (like the environment or anti-personnel land mines), often using the media. This was clearly the case in the process to adopt the land mine convention.
Secretariats can present information suggesting the existence of a problem at an intergovernmental level. The UN Secretariat pushed governments to adopt a human rights agreement to address violence against women, for example.
Step Two: Defining the factual parameters of the problem
In intergovernmental bodies, academic discussions, inter-agency meetings, the outlines of the facts about the problem can be discussed. Once there is some agreement about what is at issue, action can be called for.
For example, two lines coalesced for the law of the sea: evidence that there were likely to be increasing disputes about regulating traffic on the high sea, and technological advances that would make the deep seabed a resource. Governments sensed the first, the secretariats the second.
The critical role of the the Intergovernmental Panel on Climate Change was to establish the factual basis of the problem.
Step Three: A major event to establish a framework
The key step is usually a conference or dedicated meeting whose purpose is to work out the normative framework for the regime.
There is usually a negotiating process of several years duration leading to the adoption of an agreed text.
Step Four: Initial implemention and the
structuring of institutions
There are negotiations to set up the details of an implementation machinery. These can often be very contentious, since this defines the extent to which States are willing to cede functions or even sovereignty to an international organization. For example, part of the reluctance of the Bush administration to accept the draft protocol on verification for the Biological Weapons Convention was an unwillingness to give the responsibility to an international organization.
There can also be initial unilateral steps by governments.
Step Five: Periodic review of the regime and elaboration of details
There is usually a work program to explore details of the agreement with a view to modifications of the regime within its broad parameters. Example: Commission on Sustainable Development (and the Intergovernmental Panel on Forests) have a responsibility to monitor the overall agreements on the environment..
After some time, this is followed by review conferences which may reach further agreements. Example: The periodic review conferences of the Non-Proliferation Treaty to ensure that it is up-to-date.
Step Six: Routinizing implementation through institutional work
Assuming that the regime has set in place, then the machinery is expected to work: the Law of the Sea Tribunal will adjudicate results, the WTO will solve trade disputes, the ITU will administer domain name registrations, the WIPO will resolve copyright and trademark disputes on domain names.
The process becomes norm enforcement, to which we will return next week.
The cycle, however, can repeat itself between steps two and five several times before step six is reached...
Creating regimes: three examples
To demonstrate the process, I want to look at three negotiation processes, similar and yet very different:
The advancement of women regime (which I would argue is at step five)
The global climate change regime (which seems to be going into step five, although with elements of step six).
The verification part of the Biological Weapons Convention, that I would say is almost at step one.
Let me describe each:
Advancement of women
This became an international issue because governments were not acting to achieve equality between women and men. It was pushed heavily by women in civil society, since their were few women in government. It has evolved into a regime, part of the larger human rights regime, but with distinct characteristics.
A quick history
After WWII, women were granted the norm of equality in the UN Charter (only about half of the signers of the Charter gave women the unrestricted right to vote and hold public office)
There was an agreement to set up an intergovernmental machinery (the Commission on the Status of Women)
For thirty years, the program sought to define the nature of the problem. It started with rights (intermediate agreements on political rights, married women).
In 1969 (after first world human rights conference), there was agreement on a declaration on the elimination of discrimination against women (normative agreement on parameters of issue with regard to rights)
In 1972, there was an agreement to have an International Women’s Year in 1975. The issue of women’s advancement moved to center stage (was a form of cloning of procedures, based on Stockholm Conference). The Conference (at Mexico City) was set up.
Mexico City revealed mixed definition of problem. No consensus on final text.
In 1979 there was agreement on the Convention on the Elimination of All Forms of Discrimination against Women, normative base for part of issue.
In 1980, the second world conference on women at Copenhagen focussed on development, but there was still no consensus.
In 1985, the third world conference on women at Nairobi reached a consensus on facts and objectives, but not on most principles of fact and causation and of most rights and obligations of states, but not on details nor on institutional matters. It also skipped a number of important issues.
It basically reached Step Three.
The Beijing Process consisted of going though steps four and five, as
well as revisiting aspects of steps two and three.
To a degree, follow-up to Nairobi was expected to be mostly step five. A long-term work program of the Commission on the Status of Women was agreed in 1987, and the Secretariat, in the form of the Division for the Advancement of Women began to do studies.
The studies began to lead to a re-appraisal of the factual basis of the Nairobi agreements: e.g. women in politics, women in the economy.
Non-governmental organizations began to push for new issues (mainstreaming and gender, as well as women in armed conflicts).
The sessions of the Commission from 1988-1992 identified new areas where agreements could be reached.
The first review session in 1990 revealed that there had been little progress in implementation and that a new event was needed to mobilize. This approach was pushed by the Division for the Advancement of Women.
The conference drought was overcome and Beijing was mandated.
Role of each party
Secretariat
Channeled information, structured agenda, by using expert groups developed pre-consensus. See Mathiason, "The UN Secretariat at Beijing: Gatekeepers of Ideas"
Civil society
Advocated for new issues. Three important groups: WEDO (and the other environmental orgs), gay rights (and other human rights groups), and partisans of reproductive rights.
Governments
A number of governments, for different reasons, became involved: US/Canada because of national pride and political issues, Philippines (and Mexico) because of leadership role, Iran and Guatemala because of specific issues.
Main issues:
Mainstreaming
Substantive connection with other conferences. The idea was to build advancement of women into other regime processes (like environment), but how to do so without “disappearing in the stream.”
Reproductive rights
Other rights
Including inheritance (sharia), and sexual orientation
Women in the economy
The focus on women's positive role, Grameen bank, etc.
Process
The process was, as usual, a matter of sequential agreements to the end.
The structure of the final document was largely agreed in 1992 and 1993.
There were debates on modification (provoked in part by Mrs. Mongella, the new Secretary-General of the Conference), also related to other conferences. Divided secretariat.
In 1995, final prepcom reached agreement on some 60% of text (after three weeks of negotiation...)
Issues left unresolved were largely reproductive rights and larger political issues.
Negotations at Beijing
On most, issues, two parties: G-77 and the European Union (plus Japan, the US, Canada, Australia and New Zealand - the JUSCANZ group).
On others, many, different parties (conservatives v. Mainstream on reproductive rights).
Follow-up
Issues of institutional structure. The Secretary-General was asked to create a post of special adviser on gender. The idea was to have someone in his office to promote the issue. This was originally done, but soon the post was moved to be in the department containing the Division for the Advancement of Women. Ironically, Kofi Annan has appointed a woman as Deputy Secretary-General (from Canada) and she took a lead in this. When she left, however, she was replaced by a man and the vigour with which this objective has been pursued declined. Subsequently, in 2007, Ban Ki Moon appointed a woman, Asha-Rose Migiro of Tanzania as Deputy Secretary-General. Dr. Migro's main international experience was as an expert on the UN Committee on the Elimination of Discrimination Against Women (CEDAW). She completed her term and has been replaced by a Swedish man.
Issues of follow-up process. Follow-up rested with the Commission on the Status of Women which looked at the twelve priority areas in depth and tried to expand on them. Also, an interagency follow-up including, inter alia, an effort to use gender budgeting to ensure that the organizations of the system implemented Beijing.
This was agreed at 50th GA.
Beijing Plus Five
The five-year review was a Special Session of the General Assembly (one of five). It was fractious because, among other things, the conservative forces that had lost at Beijing tried to roll back many of the gains. They did not succeed, but the process was not pretty. It may be that regime formation is a dialectical process. If so, Beijing was the thesis, Beijing Plus Five was the antithesis. The fact that Beijing Plus Five didn't roll anything back probably means that the synthesis will be even more dynamic. You can see the result at http://www.un.org/womenwatch/daw/followup/as2310rev1.pdf
The Beijing Plus Five experience so traumatized both governments and the Secretariat that Beijing Plus Ten (in 2005) was almost a total non-event. Many advocates are now beginning to argue that there should be a new conference, a case I have made myself, although the extent of support is not clear even though the United States has again shown interest in it.
As part of the on-going reform process of the United Nations, a high level panel produced a report on System-wide coherence. One of its recommendations was to create a major unit to deal with gender by combining the Division for the Advancement of Women, the United Nations Development Fund for Women (UNIFEM )and the United Nations Institute for Research and Training on the Advancement of Women (INSTRAW) lunder an Under-Secretary-General. Thiswas backed by the new Secretary-General and after for over three years of discussion was finally agreed on the last day of the 63rd session of the General Assembly on 15 September 2009. After another year of negotiations, it was formally established as the United Nations Entity for Gender Equality and the Empowerment of Women, or UN Women, headed by the former president of Chile, Michelle Bachelet. She completed her term and has returned to Chile to run for president again. Her replacement is a former vice-president of South Africa.
How well UN-Women will function is still an open question.
In 2012, the Secretary-General of the United Nations and the Chair of the General Assembly announced that there would be a 20-year after conference on women. This didn’t happen.
Beijing Plus 25
The Commission on the Status of Women marked the 25th anniversary at its 64th session, which was limited due to COVID-19. It adopted a Political Declaration on the Occasion of the Twenty-fifth Anniversary of the Fourth World Conference on Women. The Declaration noted that progress in implementing the Platform was not sufficient, but did not decide anything new.
Separately, The Rockefeller Foundation undertook a review
called Beijing+25:
Accelerating Progress for Women and Girls.
The report of the exercise was produced by the Georgetown Institute for
Women, Peace and Security as well as the Rockefeller Foundation. Its report noted that “Relying on the wisdom and experience of distinguished women from
every sector, and the fresh insights and aspirations of young women leaders, Beijing+25:
Accelerating Progress for Women and Girls offers a comprehensive
framework for advancing women’s rights in a post-pandemic world.” Interestingly, one of the leaders (of the
Georgetown Institute) was Melanne Verveer,
who had been George H.W. Bush’s ambassador to the Commission on the Status of
Women.
Beijing Plus 30
The 30th anniversary of Beijing will take place in September 2025 and hopefully there will be a celebration and updating of what was agreed at that now ancient conference.
Climate Change
In contrast to advancement of women, climate change reached an agreement relatively quickly - over about 10 years.
The issue turned on step two, in contrast to advancement of women, because once the problem was defined, the other steps went relatively rapidly. For much of this description I draw on the excellent study by Matthew Paterson (of the UK) entitled Global Warming and Global Politics (London, Routledge, 1996).
History of climate change
The idea that there was pollution in the air has been known for some time. All you had to do was breathe in some cities. You can even still do so in Beijing or Shanghai.
The idea that air pollution had international dimensions was also known for some time. For example, there were discussions between the United States and Canada over acid rain. In Europe, one of the activities of the United Nations Economic Commission for Europe was a regional agreement on Transboundary Air Pollution.
The issue of pollution was a feature of the 1972 Stockholm Conference on the Environment.
The weathermen
The notion that pollution could have effects on climate came out of a combination of civil society and international organizations.
Slowly, but then increasingly there was international cooperation in meteorology, through a specialized agency of the United Nations, the World Meteorological Organization (WMO). This had permitted consolidated and cooperative research. In 1969, for example, as a result of the UN-sponsored International Geophysical Year, WMO and the International Council of Scientific Unions (ICSU) set up the Global Atmospheric Research Programme (GARP) to do research. In that community, there was beginning to be a sense that human action could change climates.
Like many of the technical United Nations agencies, business is done through networks of civil society as much as by governments, with the international secretariat serving as a gatekeeper...
A series of United Nations conferences on food (1974), water (1976) and desertification (1977). The conferences were called because of perceived crises in these areas (includng the first Sahelian drought of the 1970’s).
In 1979, the WMO together with ICSU organized the first World Climate Conference (WCP), which, among other things, noted that the amount of CO2 in the atmosphere was increasing and this might have consequences for humans. One result was to establish the World Climate Programme to coordinate full-scale research.
By 1985, an international conference was organized by WCP in Villach, Austria on the theme "Assessment of the role of carbon dioxide and other greenhouse gases in climate variations and associated impacts." This concluded that there was a relationship and that global warming was taking place.
In a parallel way, research was beginning to show the depletion of the ozone layer as a result, mostly, of CFC’s and international agreements were being reached to limit them (easy to do, since they were mostly found in aerosol sprays and refrigerants). Included in this was a Vienna convention and its Montreal Protocol that called on states to take steps to limit CFC emissions.
This issue was how to bring this emerging scientific consensus to governmental attention.
Step One: Raising the salience of the problem
According to Paterson, the issue of climate change reached the political level in 1988 when, at a legislative hearing, James Hansen, the chief climatologist of the US Government said that the greenhouse effect was occurring.
The statement came on the heels of six of the hottest ten years in history and a major drought in the US.
The Canadians, the UK and the Russians at the General Assembly began to mention the importance of the problem.
The problem, however, was that the developing countries did not see this as a problem for them.
Step Two: Determining the parameters
Convincing the developing countries that climate change, which was not their fault, was their concern took some time. Scientific civil society was not well rooted there. Efforts to reduce greenhouse gases would have impact on development (an old idea was: we’ll stop polluting when we’re developed, just like you did...)
An Intergovermental Panel on Climate Change was created, to agree on the facts.
This was important, since the US had its own problems, with industry which was concerned that air quality controls would cost money.
IPCC reported to second World Climate Conference in 1990, where scientists called on politicians to do something and began to establish its credibility as a source of facts, something it has continued to do with increasing success (including a Nobel Prize in 2007. It is now working on its Fifth Assessment to be issued in 2014, which should help speed the negotiations.
Step three: major event
Framework convention was negotiated over two years over a series of negotiating sessions from 1991-1992. Mandated by GA (as a result of the Climate Conference), with a view to being a part of the 1992 Conference on the Environment and Development in Rio.
The Rio+20 Conference in June 2012 reinforced a consensus that something had to be done without, unfortunately, being too specific.
The convention is mostly about principles, norms and some procedures. This in part is due to the lack of consensus on what had to be done. By deferring issues ("the devil is in the details"), it was possible to get a legally-binding framework which prevent renegotiation of basics as the rules and procedures were negotiated.
Civil society
Environmentalists
Businessmen, particularly concerned with how reducing emissions might affect their costs.
Scientists
International secretariats
UNEP, Secretariat of the UN Framework Convention on Climate Change (UNFCCC)
The first Executive Secretary was Michael Zammit Cutajar (Maltese, out of UNCTAD, economist not a lawyer, sensitive to developing countries). He retired and was replaced by Joke Waller-Hunter, the former Director of the Division for Sustainable Development (Dutch). She died in office was replaced by another Dutch national, Yvo de Boer, whose career included being part of the intergovernmental negotiations on climate change. After the Copenhagen session of the Conference of Parties to the Convention, he was replaced by Cristina Figueres of Costa Rica, who was the daughter of a former President and the sister of another. She was replaced by Patricia Espinosa from Mexico, who had be Mexico’s Foreign Secretary (and had been an active participant in the Fourth World Conference on Women). The head since 2022 is now Simon Stiell from Grenada.
Governments
Negotiation has been largely by country groups, as is usually the case. These include:
G-77 generally
Small island and coastal states (because climate change could inundate them)
EU/Canada/Australia (as main sources of industrial pollution)
US
Step Four: Structuring of institutions
The Climate Change Secretariat was set up and is working in Bonn. It services the meetings of States parties and undertakes policy research. It is supported by the World Meteorological Organization which provides a substantive secretariat for the Intergovernmental Panel on Climate Change, which maintains the scientific consensus on climate.
Step Five: Periodic review of the regime and elaboration of details
In December 1997, there was a COP (Conference of Parties) in Kyoto, Japan to agree on the details of emmision control targets.
An agreement was reached on targets at Kyoto, but details were left to negotiation, including the issue of emissions trading as a means of letting polluters buy their way out in the short-run and to transfer funds to developing countries.
The issue was pursued at the next COP in Buenos Aires. A difficult negotiation took place, setting some agreements on principle but leaving the implementation machinery to be negotiated. The Bonn negotiations in 2004 made significant agreements on emissions trading (but not its machinery), revised some of the targets and solved some conceptual problems (like sinks). These were confirmed at the Seventh Conference of Parties in Marrakesh. The US decision not to participate, however, undercut this negotiation. The protocol would only come into force if either the Russian Federation or the United States ratified it. The United States decided not to ratify, but the Russian Federation ratified in 2005 and the Protocol has since come into force. Its goals only go to 2012, however, and before that the issue is being renegotiated, something that may be aided by the belief, in the United States, that global warming is one factor affecting the severity of hurricanes.
A process has been set in motion to negotiate an extension (or replacement) of the Kyoto Protocol. The Secretary-General has organized a consultation on climate change during the 2007 General Assembly, the Group of 8 countries (including the US) have agreed that climate change negotiations should take place under the United Nations and the matter was pursued at the 12th meeting of the Conference of Parties in Bali, Indonesia, in November 2007. The COP-13 agreed on a process to negotiate, based on the existing Kyoto Protocol Machinery and a new Ad Hoc Working Group on Long-Term Cooperation (AWG-LTC). This has been meeting through the year and reported to COP-14 in Poznan, Poland in December. The negotiations will proceed until COP-15 in Copenhagen, Denmark in December 2009, at which point a new protocol should be agreed. Unfortunately, Copenhagen was not successful and, in fact, did not formally adopt a result (called the Copenhagen Accord), and most of the issues were forwarded to COP 16 in Cancun, where some progress has been made, and on to COP 17 that was held in 2011 in Durban, South Africa and adopted the Durban Platform. It was followed by COP 18 in Doha in November 2012, which did not make much progress. More should happen at COP 18 in Warsaw, Poland, which was held at the National Stadium. In 2015, the Paris Agreement was reached and is still the main agreement, although it is not binding. The next session, COP 28, will be in the United Arab Emirates in November/Decembber 2023.
When the Biological Weapons Convention was negotiated, it did not include a verification mechanism. Reflecting the realist view prevalent at the time, it assumed that the States Parties would enforce compliance, through the Security Council.
This was not a problem as long as only a few countries (like the US and the Soviet Union) had a BW capability, but has become a greater problem in the post-Cold War period. The regime creation process is now focused on the issue of a protocol to the convention that would set up a verification mechanism. In stage terms, this would be Step 4. However, the rejection by the United States of the fundamental factual assumption that an international institution could successfully verify compliance means that the negotiating process is now at Step 2. The salience of the problem is very clear, but there is no agreement on the parameters. The vehicle for regime creation in the BWC is the periodic review conferences, of which four have been concluded. The fifth, held in 2001, was expected to reach agreement on a protocol, but failed to do so because the United State, represented by John Bolton, then Under-Secretary of State for Non-Proliferation rejected the draft completely. This threw the meeting into turmoil and it could also failed to agree on a final declaration specifying what had been agreed and, rather than be the first review conference to conclude without a conclusion, so to speak, it adjourned for a year. It resumed its sessions three years ago, with the goal of at least agreeing on next steps, and adopted a procedure to move forward, if slowly. The task force convened by the United States Institute for Peace and chaired by Newt Gingrich and George Mitchell recommended that a verification protocol be negotiated, so the process may eventually begin again. There are still no formal efforts to revive the protocol discussions. The Obama Administration did not decide whether to support the new protocol, even after four years, although it was open to revisions in the Convention to make it more effective. No further action has taken place.