A consensus about the existence, causes, and importance of an

environmental problemdoes not always produce a consensus among

states on whether, let alone what, international action to take. Even
after an environmental change becomes a topic for international discussion,
highly concerned states may fail to prompt international
action. This chapter focuses on the background conditions, negotiation
processes, and institutional terms that facilitate or hinder intergovernmental
regime formation. It addresses two questions central to
the study of international environmental politics: regime formation
and regime design (see Young andOsherenko, 1993c: vii).With respect
to regime or institutional formation,when are states likely to succeed
in negotiating solutions to identified problems? Why do states reach
agreement on addressing some international environmental problems
but not others (Hasenclever et al., 1997: 1)? Why do states
address some problems promptly but others onlyz after decades of
discussion? Why have states negotiated numerous protocols and
amendments to some agreements but left others unchanged? With
respect to regime design, why do some agreements have more specific
and stringent provisions than others? Why do some carefully monitor
andsanctionviolations, others seek to facilitate compliance, andyet others
pay little attention to compliance?
Definitions
Scholars have engaged such questions in terms of both regimes and
institutions (Krasner, 1983; Keohane, 1988; Taylor and Groom, 1988),
examining both their formation and their design (Young
and Osherenko, 1993a; Koremenos et al., 2004). To clarify these questions,
this chapter focuses on that subset of international regimes and
institutions comprised of formal intergovernmental agreements –
international environmental agreements (IEAs). Countries sometimes
cooperate through informal or tacit understandings without
formalizing their understandings. And when states choose to cooperate
through formal legal agreements, those agreements may not
shape the expectations and social practices considered to define
international regimes and institutions (on the regime/institution
distinction, see, for example, Lipson, 1991; Keohane, 1993: 28;
Hasenclever et al., 1997: 19–20). And, even when legal agreements
shape expectations, they may not significantly alter behavior
(Keohane, 1993: 28; Hasenclever et al., 1997: 9–10). Yet, considerable
evidence exists that negotiations that eventually produce
treaties, conventions, and other agreements are the likely and ‘normal’
outcome of intergovernmental efforts to resolve international
environmental problems (Young and Osherenko, 1993a: 225). I use
‘regime’ and ‘institution’ interchangeably in this chapter and adopt
Keohane’s definition of international agreements as ‘institutionswith
explicit rules, agreed upon by governments, that pertain to particular
sets of issues in international relations’ (Keohane, 1989: 4). There
are, of course, many alternative mechanisms by which governments,
nongovernmental organizations (NGOs), and multinational corporations
(MNCs) address international environmental problems.
Following the prior chapter’s structure for discussing issue emergence,
this chapter categorizes the influences on intergovernmental
environmental negotiations as including relatively passive ‘background
conditions’ that, even if not necessary, make it possible
and/or likely that states advocating action will succeed as well as
more active ‘proximate determinants’ that more often appear as
direct and immediate influences on the formation and design of intergovernmental
agreements.
Background Conditions that
Support International Action
Many factors create background conditions that foster international
environmental negotiations. Some factors relate directly to
the environmental problem at hand while others are exogenous factors
that, although unrelated, facilitate or inhibit international efforts
to cooperate on the problem. The former category includes the type
and number of actors relevant to addressing the problem, those actors’
interests and motivations, the distribution of power among them, and
the availability of an appropriate institutional forum. The latter category
includes broader interdependencies among states and long-term
policy trends.
Relevant actors
To understand success in negotiating IEAs for some environmental
problems but not others, start by considering which, and how
many, actors are relevant to resolving a problem. Although victims
and perpetrators dominate the issue emergence stage (see Chapter
4), negotiations often expand the pool of relevant actors to include
potential contributors.
As discussed previously, victims are defined by whether they
perceive it as costly to leave a problem unaddressed or as beneficial
to address it. States materially harmed by environmental
degradation are, to be sure, more likely to consider themselves victims
than those that are not. Yet, some states that are materially
affected may not view those effects as negative – or as sufficiently
negative to require their resolution. Both political rhetoric and
scholarly analyses identify most problems as Tragedies of the
Commons, implying that all states are victims and would benefit
from the problem’s resolution. Yet often this is not the case. Thus,
concerns about deforestation are not shared by some governments
that view logging as an engine for economic growth rather than an
environmental problem. And, states that are not materially affected
by some environmental degradation may nonetheless perceive
themselves as victims. Many non-whaling, and even non-oceanbordering,
states are active members of the International
Convention for the Regulation of Whaling (ICRW). Negotiations
commence only after at least some states perceive themselves as
victims and international action as warranted.
Perpetrators are thosewhose actions – or inactions – contribute to
causing an international environmental problem. Some problems
involve few actors whose actions unambiguously cause a problem,
for example, nuclear weapons testing or nuclear weapons waste disposal.
Some involve many actors whose actions can be clearly identified
as causing the problem, including many types of marine,
atmospheric, or freshwater pollution. Some impacts can be attributed
to specific states’ or individuals’ actions, such as oil or chemical
spills and other accidents, while others are the aggregate result of
individual actions, such as overfishing or climate change. In these latter
cases, causal responsibility can be shared relatively equally among
states or can be dominated by a few states. And which states are considered
responsible reflects competing efforts at social construction
designed to blame certain actors and not others (Stone, 1989).
Efforts to resolve a problem may involve identifying potential contributors
who are neither perpetrators nor victims. Resolving environmental
problems does not always require restricting the
activities that cause it. Environmentally harmful activities can
continue or even increase if technological or behavioral strategies for
offsetting impacts can be developed. Such strategies may engage
actors who are not responsible for the problem but see attractive
economic opportunities in resolving it. ‘Green technology’ companies
recognize that international regulation can create new markets and
stimulate existing ones. Thus, climate change negotiations have bolstered
various efforts to develop solar and wind energy as well as
hybrid vehicles, have revived the prospects for nuclear energy, and
have fostered research into carbon sequestration technologies.
Resolving some environmental problems can generate non-environmental
benefits, as when the international protection of reefs, wetlands,
or forests promotes eco-tourism. And, actors may
self-consciously devise linkages between environmental progress
and economic benefits, as in debt-for-nature swaps. In all these cases,
actors who are neither perpetrators nor victimsmay have incentives
that make them willing to contribute to resolving a problem.
For any problem, the number of victims, perpetrators and potential
contributors whomust be engaged affects the ease of negotiating
international agreements. International negotiations depend on concerned
states and non-state actors convincing other states to perceive
themselves as victims and crafting an agreement that can
induce enough, even if not all, perpetrators and/or potential contributors
to take enough action that an agreement is worth having. The
number of actors who must be engaged to address a problem to the
satisfaction of concerned states influences the ease with which a
problem can be resolved (Koremenos et al., 2001). Generally, the
more countries thatmust be ‘at the table’, themore difficult and timeconsuming
it will be to reach agreement, sincemore interestsmust be
integrated into that agreement’s terms (Young and Osherenko, 1993b:
12;Koremenos et al., 2001). That said, regional agreementswith 30 to
40 governments and global agreements with over 100 countries are
not uncommon and bilateral negotiations sometimes fail to produce
an agreement (Young and Osherenko, 1993b: 12).
Interests and motivation
States’ interests are major influences on regime formation and
design. Scholars have proposed various typologies of interest
configurations and conflict types to explain the chances for success
of international negotiations (Young, 1998, 1999a; Miles
et al., 2002).
Scholars often argue that negotiations succeed only if the relevant
states ‘share common interests which they can realize only through
cooperation’ (Hasenclever et al., 1997: 30). Such a view obscures,
however, that ‘common interests’ are not necessarily an inherent and
fixed trait of a problem but, as often, reflect the efforts of concerned
states and other actors to convince states to become concerned or to
alter their behavior even if they remain indifferent to the problem.
To be sure, when environmental problems reflect Tragedy of
the Commons situations or arise from incapacity, concerned states
accept the environmental problem and the need for action. But even
in many Tragedy of the Commons cases, some states reject the view
of concerned states that a problem requires action. States can
more easily – and hence are more likely to – resolve Tragedy of
the Commons cases than upstream/downstream problems if only
because, in the latter case, the perpetrators of a problem can reject
the notion that a problem exists. Thus, consider two countries that
pollute and take water from both a transborder lake and a transborder
river. Although both countries have incentives to negotiate to
reduce lake pollution, the upstream state has no incentive to negotiate
to reduce the river pollution (Hasenclever et al., 1997: 53).
A necessary condition for successful environmental negotiation
is one state having sufficient concern that it seeks to cooperate with
others to address it. If no state views – or is convinced by non-state
actors to view – environmental degradation from some human
activity as warranting resolution, then international negotiations
will not commence. Although only one concerned state is needed,
IEA formation becomes more likely as the fraction of relevant
actors increases. Before negotiations can begin, various state and
non-state actors must try to generate concern among initially indifferent
states. This can involve scientific or interest-based arguments
that clarify the effects and implications of the environmental
problem, as exemplified by the Intergovernmental Panel on Climate
Change (IPCC) reports or in early LRTAP scientific efforts (see Levy,
1993). But it can also involve value-based arguments, as was evident
in the success of concerned governments and NGOs in garnering
support for the adoption and continuation of a commercial
whaling moratorium within the ICRW based on the notion that
whaling is no longer an ‘appropriate’ form of the exploitation of
natural resources. Regardless of the process involved, increasing
the number of states that view themselves as ‘victims’ increases the
likelihood that an IEA will form.
The magnitude of international concern, rather than the number
of concerned states, may better predict the prospects for IEA
formation. The notion of ‘magnitude’ captures the idea that what
matters is the number of concerned states as well as he strength of
each state’s concern. A few states, or even a single state, when
strongly concerned about a problem may have the motivation and
resources to generate concern among many other states. And even
if they fail to generate sincere concern, strongly motivated states
may be willing to expend resources and make linkages with other
issues that induce states that remain unconcerned about an environmental
problem to negotiate for instrumental reasons.
A state’s level of concern depends on its view of the costs and
benefits of addressing a problemcompared to those of not addressing
it. State positions in environmental negotiations depend on
their ecological vulnerability and the abatement costs they would
face under proposed rules (Sprinz and Vaahtoranta, 1994). States
with high ecological vulnerability and low abatement costs will be
‘pushers’, leading negotiation efforts. Those with low ecological
vulnerability and high abatement costs will be ‘draggers’ or ‘laggards’,
resisting international efforts. Stateswith high ecological vulnerability
but high abatement costs will be ‘intermediates’,
supporting international agreement but negotiating tominimize the
costs they will bear. And states with low ecological vulnerability
and low abatement costs will be ‘bystanders’, being indifferent to
whether such an agreement is negotiated.
If such underlying incentives influence states’ negotiation positions,
those positions also reflect policy styles, party politics,
bureaucratic structures, industrial interests, NGO influence, and
transnational linkages (Schreurs, 1997; DeSombre, 2000; O’Neill,
2000). Under certain conditions, these forces can lead states to enter
negotiations looking for integrative solutions and to compromise to
address a problem. Indeed, negotiations appear to succeed ‘only
when integrative bargaining or a search for mutually beneficial
solutions assumes a prominent role in the process’ (Young and
Osherenko, 1993b: 13). Negotiation success does not depend on a
problem being a high priority for relevant states: a low priority may
allowstates to avoid fractious politicization by treating negotiations as
‘technocratic’ issues (Young and Osherenko, 1993a: 15). Nor does
negotiation success depend on states acting altruistically (Young and
Osherenko, 1993b: 16). The predictable self-interest-seeking negotiating
positions of states do not preclude them from identifying
solutions that will meet the needs of all self-interested parties.
Power
As in most of international relations, power influences whether
pushers succeed in establishing an IEA. International treaties are
voluntary contracts among sovereign states. States cannot be
forced to participate in negotiations or join IEAs once they are
formed. They must be convinced that it is in their interests to do so.
International negotiations consist of those who would benefit most
from resolving a problem attempting to raise concern and to craft
agreement terms so that thosewho can contributemost to resolving
the problem will either view it as in their interests – or can otherwise
be convinced – to participate.
The interaction of power with interests becomes evident by
considering two extreme cases. In one, a single state experiences
considerable immediate and tangible costs from some form of
environmental degradation. In the other, a single state that is a
major source of the environmental problem would face significant
costs to reduce their contribution to the problem and would benefit
little from the problem’s resolution. Clearly, the former would be
a pusher and the latter a dragger. But to know whether an IEA is
likely to form requires that we also know how much power these
states have. Pusher states that are powerful – in the sense of controlling
various resources capable of influencing other states –
can use their resources to induce draggers to negotiate and can
also design institutional provisions to make participation
rewarding and non-participation costly. If pusher states lack such
resources, they will have fewer ways of engaging perpetrating
states. Likewise, powerful dragger states can more readily resist,
delay, or simply ignore calls from less powerful states to alter their
environmentally-harmful behaviors.
Structural power – as embodied in military hardware and economic
prowess – surelymatters in international environmental affairs.
IEAs aremore likely to emergewhen fivemembers of theG-8 are pushers
than when five developing states are. Yet structural power provides
less explanatory leverage than realists might have us believe
(Zurn, 1998: 625). The general unwillingness of states to deploy military
or even significant economic resources to pressure others on
environmental issuesmeans that structurally powerful pusher states
usually rely on persuasion more than coercion and that structurally
weaker dragger states can and will resist such pressures if doing so
would be viewed as bowing to external pressure or ifmore powerful
states fail to offer attractive incentives to forego the activities in question.
Issue-specific power (a state’s ability to influence outcomes if no
agreement is reached and their voting and bargaining power within
international environmental institutions) gives states considerable
power over what gets done, when, and how. Brazil can effectively
block progress to protect tropical rainforests just as Botswana,
Namibia, and Zimbabwe can to protect elephants.
American opposition to the Kyoto Protocol after 2000 illustrates
that IEAs can develop despite the opposition of powerful states. Yet
powerful states, in particular the USA, have used their power to
induce recalcitrant states to take environmental concerns seriously,
influencing the timing and content – and membership – of
several international environmental regimes (Young and
Osherenko, 1993a: 230; DeSombre, 2000). And, while American
unilateralism drew initial international attention to the ozone protection
issue, China and India later used the power of ‘their growing
demand for CFCs’ to resist pressures to participate until
industrialized countries amended the Montreal Protocol to cover
their costs of compliance (Young and Osherenko, 1993a: 231;
Gruber, 2000).
Science
Science has received particular attention as a force promoting
international environmental cooperation. Although expertise is
crucial to the negotiation of arms control, trade, and human rights
treaties, scientific expertise wields greater influence in environmental
negotiations because of science’s central role in understanding
the magnitude, causes, and solutions to environmental
questions. As with the need for concern in at least one country, scientific
evidence suggesting that humans are contributing to some
form of environmental degredation is a necessary condition for
negotiations to commence. Cooperation becomes easier ‘to achieve
once a common or widely shared (though not necessarily accurate)
understanding of the problem, its causes, and its solutions arises’
(Young and Osherenko, 1993b: 19). When knowledge is uncertain
but inaction threatens high costs, policy makers may turn to scientists
in ‘epistemic communities’ to help them identify the nature of
the problem and whether, when, and what type of action to take
(Haas, 1992a: 188 and 215, 1992b; Young and Osherenko, 1993b:
20). Epistemic communities concerned about an environmental
problem can be particularly influential – even without strong public
awareness or concern – if their attempts to foster international
policy do not engender strong interest-based opposition. Thus, scientists
convinced governments to negotiate and adopt the
Convention on Wetlands of International Importance (Wetlands
Convention) in 1971, long before the development of public concern
about wetland loss (Matthews, 1993).
States often grant scientific arguments more legitimacy in negotiations
than interest-based arguments and, hence, can prove quite
influential (Jasanoff, 1990, 2004; Young and Osherenko, 1993b: 16).
Scientists’ methods and rules of discursive legitimacy provide an
alternative to typical interest-based and power-based bargaining. In
environmental negotiations, informal norms generate expectations
that states should support their positions with empirical evidence
and scientific research. Indeed, the international whaling regime
and many other IEAs require that protocols and amendments ‘be
based on scientific findings’ (International Convention for the
Regulation of Whaling, Art.V.2.b). Scientific evidence need not be
overwhelming, non-controversial, or even widely accepted to have
influence. Governments sometimes act before scientific knowledge fully
consolidates. Various states negotiated the 1985 Vienna Convention
for the Protection of the Ozone Layer before themost compelling evidence
identified CFCs as the source of ozone depletion; ‘the real decisions’
underlying the 1987 Montreal Protocol were made before a
scientific consensus emerged (Haas, 1992a: 224). In other cases, public
concern develops despite scientific uncertainty. When governments
commence negotiations in such settings, scientific findings
that magnify a problem or identify cheaper ways to address it can
foster international agreement by altering states’ calculations of their
ecological vulnerability or abatement costs while contrary findings
can reduce pressure for agreement.
However, scientific arguments can also be ignored, obscured, or
manipulated in the service of interest-based positions (Young and
Osherenko, 1993a: 233). International fisheries agreements routinely
ignore or override the recommendations of their own scientific
advisory bodies (Walsh, 2004). And although scientific norms and
training usually lead scientists to resist pressure from governments
or others to generate science to fit policy positions, unconscious and
implicit biases can influence the questions asked, the interpretation
of results, the communication of uncertainty, the options considered,
and the policy conclusions offered. Indeed, values and power that are
embedded in scientific information can rationalize or reinforce
rather than reduce political conflict (Jasanoff, 1990; Litfin, 1994:
186). And even if scientific research could be made objective and
impartial, policy makers could still selectively use or ignore science
to support interest-based positions.
Institutional forums
States expend time, take risks, and incur costs to create international
institutions. Therefore, having a pre-existing institution in which to
negotiate can facilitate IEA creation (Keohane, 1984). For bilateral
problems or those involving only a few states, the ‘institution’ may
consist simply of interactions between a few government representatives
who document their agreements in an ‘exchange of notes’ or
‘exchange of letters’. When more states are involved, a more formal
negotiating forum is usually established. In new areas of international
environmental cooperation, such forums are often created by
a particularly concerned government hosting a conference and inviting
relevant countries. At such initialmeetings, states engage in ‘constitutional’
negotiations over the rules for subsequent substantive
negotiations includingwhether tomake decisions by unanimity, consensus,
or qualified majorities. Over time, meta-norms for international
environmental negotiations have developed, with those rules being
understood and accepted by all participants and modified, if needed,
to fit the vagaries of the specific context.
In many areas of international environmental law there are
decades of negotiating experience and many pre-existing forums for
negotiation. Many international environmental institutions hold regular
meetings to review progress under existing agreements, to discuss
proposed revisions, or to negotiate new ones. Such regular
meetings can foster negotiations by providing both a ready-made discussion
forum and a foundation for mutual knowledge, understanding,
and trust among the negotiators.Most fishery commissionsmeet
annually to adopt catch quotas. The regular meetings of the Marine
Environment Protection Committee of the International Maritime
Organization and of the Alpine and LRTAP Conventions have fostered
adoption of numerous conventions, protocols, and amendments,
many that are far afield from the initial topic of negotiation. The
Convention on the Conservation of Migratory Species of Wild
Animals (CMS) enjoins member states to conclude additional agreements.
UNEP provides a forumfor negotiation on regional seas issues
and the European Union provides a forum for European environmental
issues. Such forums remove the mundane but important
obstacle to resolving a problem, namely, having an established place
and time to talk about it. And they also have bureaucratic incentives
to avoid ‘going out of business’, leading them to promote new areas
for negotiation once existing ones have been addressed. They also
place states reluctant to take action on an issue in the awkward position
of either discussing the problemor actively, and publicly, opposing
its discussion. Thus, such institutions favor the interests of those
states seeking to have an environmental problem recognized and
addressed. Indeed, the availability of institutional forums explains
why problems in some environmental sectors are more readily
resolved than in others. It seems hard to imagine that as many conventions,
protocols, and amendments addressing marine pollution
and fisheries would have been negotiated in the absence of ongoing
institutions in which to negotiate them.
Long-term interdependencies
Environmental negotiations are more likely to succeed when states –
and among those states that – interact frequently, have a dense set of
interactions, have generally cooperative relationships, and have issuespecific
power resources that foster interdependence (Keohane and
Nye, 1989; Hasenclever et al., 1997: 54–55). Interdependence
strengthens incentives to cooperate and provides more opportunities
for each state to know that other states may be watching their
environmental behaviors and that those behaviors may influence,
implicitly or explicitly, their ability to cooperate in other, more
important, arenas. Upstream or upwind states may find that downstream
or downwind states raise pollution issues in economic or
other forums. Thus, the dense interdependence among European
states helps explain the greater number and range of IEAs in
Europe than in other regions. More direct interdependencies
between environmental and other issues can enhance international
cooperation, as was evident in the negotiation of the North
American Agreement on Environmental Cooperation as part of the
North American Free Trade Agreement negotiations.
Trends in environmental concern
Long-term trends in environmental concern also play a role. The
prospects for negotiating an IEA have increased as environmental
concern has grown. Thus, the rate of one IEA per year before the
Second World War became 10 per year in the 1960s and 20 per
year in the 1990s (Mitchell, 2003). Beyond such long-term trends,
negotiations can be fostered or inhibited by more short-term
changes in the international setting: ‘Larger national and world
events which, though far removed fromthe subjectmatter involved
in specific cases of regime formation, can and do significantly affect
both the timing and content of regime formation’ (Young and
Osherenko, 1993b: 20–1). The importance of the environment
relative to other concerns can mean the difference between the
successful conclusion of negotiations or delay, continuation, or termination.
Thus, the negotiations regarding Svalbard Island were
interrupted by the FirstWorldWar, but were taken up by ‘the Paris
Peace Conference … even though the question of Svalbard had not
figured in any way in the war’ (Young and Osherenko, 1993a: 255).
Likewise the international regulation of whaling, institutionalized
in agreements in 1931 and 1937, was interrupted by the Second
World War but recommenced directly thereafter. The end of the
Cold War allowed environmental issues to move up many states’
(including the superpowers’) lists of international priorities while
the events of 11 September 2001 pushed environmental concerns
down those same lists.
Processes of International
Negotiation
As with most realms of international relations, outcomes reflect
both structure and agency. Structural forces like interests, power,
institutional forums, and interdependencies may promote or
inhibit, but do not determine, negotiation success. Within structural
constraints, actors’ choices can have a significant influence on
whether an IEA forms, when it forms, and what form it takes.
Much scholarship has highlighted the influence of states, epistemic
communities, NGOs, domestic political constituencies, and
individuals (Young, 1991; Haas, 1992b: 18; Raustiala, 1997a ; Betsill
and Corell, 2001; Corell and Betsill, 2001). The influence of such
actors is best understood in terms of how well they perform certain
functions that foster or inhibit IEA formation. However ‘ripe’ structural
conditions may be for agreement, reaching such agreement
depends on the efforts and skill of various actors in performing certain
tasks (Zartman, 1985).
Background on negotiation processes
Intergovernmental negotiations can proceed in various ways but do
tend to have common features. First and foremost they are negotiations
among governments, with negotiations conducted by executive
branch officials. In high-visibility, multilateral, negotiations, large
developed countriesmay send national delegations consisting ofmore
than 50 people, including executive branch political appointees and
staff as well as experts and advisors fromthe national legislature, academic
institutions, or NGOs. Small developing countries, on the other
hand,may be represented by a foreign national negotiating on behalf of
several countries or may not be represented at all. Negotiation rules
usually allowonly government representatives to speak during negotiating
sessions,with others allowed to speak only if invited. Some negotiating
forums grantNGOs –whether representing scientific, economic,
or environmental interests – observer status that allows their representatives
to attend some or all negotiating sessions. Although much
early international environmental diplomacy was conducted with
scant public attention, environmental negotiations now receive significant
attention fromNGOs and the internationalmedia. As negotiations
have becomemoremultilateral, public, and complex,much of the ‘real
action’ has moved out of the formal sessions into smaller ‘working
groups’. These working groups can draft particular provisions and
include negotiators from a subset of countries considered representative
of, or sensitive to, the interests of all relevant states. The exclusion
of lobbyists from negotiation and working-group sessions does not
preclude lobbying, of course. Conference hallways, local restaurants,
and hotel lobbies have become places where government representatives
seek input from scientists, NGOs, and business interests and
where the latter can lobby the former to propose particular treaty language
or to support, reject, or change proposals made by others.
Precisely because all governments can object to specific provisions or
reject, in toto, any agreement arrived at, negotiations ‘normally operate
under consensus rather than majoritarian rules’ (Young and
Osherenko, 1993a: 227). This generates dynamics that combine efforts
to find collectively acceptable – and sometimes the ‘least ambitious
program’ (Underdal, 1980) – provisions that address all states’ interests,
to persuade other governments to reassess their initial position to
engage in log-rolling and linkage tomake otherwise-unacceptable provisions
acceptable, and to use pressure tactics and side-payments.
International negotiations can also reflect the tension between the
integrative bargaining needed to get agreement from other governments
and the distributional bargaining needed tomeet the interests
of one’s own government (Raiffa, 1982).
Continuing to build knowledge,
concern, and urgency
The fostering of knowledge, concern, and urgency that is central to
getting environmental problems on the international agenda does
not end once negotiations start. Activist NGOs and leader states
must continue their efforts to get more states to the table, to transform
reluctant states into leaders, and to get leader states to take
more aggressive positions. Improved understanding by negotiators
of environmental problems and their causes – whether requested
from or provided by scientists and NGOs – can foster negotiations
by leading states to revise their estimates of the costs of reaching,
or failing to reach, agreement. Global environmental assessments
(evaluations of the status, trends, causes, and impacts of an environmental
problem undertaken by international groups of government
and independent scientists) especially when picked up by the
media, can increase pressures on negotiators. Findings from groups
like the IPCC can be quite influential with those governments that
view them as credible (scientifically ‘accurate’), salient (relevant to
current decisions), and legitimate (reflective of their interests and
perspectives) (Mitchell et al., 2006b).
Before negotiations can start, interest groups must make constituencies
aware of a problem, mobilize pressure on governments,
and make taking action seem urgent. Once negotiations do start environmental
NGOs and corporate actors provide conduits that can keep
constituencies informed about negotiation progress and negotiators
informed about constituency preferences (Lipschutz and Conca, 1993;
Princen and Finger, 1994: 217; Lipschutz and Mayer, 1996; Wapner,
1996). Scientists, corporate representatives, and environmental
activists also can ‘infiltrate’ governance, joining national delegations or
working directly with the bureaucracies of international organizations
(Haas, 1992b: 27; Raustiala, 1997b: 730). These dynamics matter
because, while interest groups try to influence negotiators’ views on
ecological vulnerability and abatement costs, they also try to convince
them that, regardless of such vulnerabilities and costs, the political
costs of opposing a group’s views are greater than those of adopting
its position.
Generating mutually acceptable
goals and policies
Once governments have ‘come to the table’ (Stein, 1989), they shift
their attention to defining mutually acceptable goals and to identifying
policies for achieving those goals. Although states must
already share an understanding of an environmental problem to
start negotiations, to reach agreement they must create a shared
understanding of the appropriate solution to it, despite their varying
levels of concerns and their often competing interests. Even
before a range of policies – and their corresponding costs and risks
– has been specified, differing levels of state concern will generate
differing views of what and how much should be done.
The first several paragraphs (or preamble) of most IEAs usually
lays out the problem at hand and a mutually acceptable, if not always
shared, vision of the goal of resolving the problem. Preambles are
often laundry lists of varied – and sometimes contradictory – goals
that reflect,without resolving, the different interests, perceptions, values,
and objectives of the states involved. Thus, the 1992 Convention
on Biological Diversity’s (CBD) preamble links protecting biological
diversity to its intrinsic value and value inmaintaining Earth’s ‘life sustaining
systems’, to states’ ‘sovereign rights over their own biological
resources’, to precautionary approaches and technology transfer, to
the concerns of indigenous communities and women, to economic
development and ‘poverty eradication’, and to meeting human food
and health needs. Such language in IEA preambles illustrates that
states can reach agreement through two different processes: compromises
and ‘horse-trading’. In the former, states reach agreement by
identifying a middle ground among their positions that, at its best,
resolves contradictions in those positions to the satisfaction of all parties.
In the latter, states reach agreement by combining their positions
in ways that, at the extreme, merely ‘paper over their differences’
(Mitchell, 2005: 205). Statesmake international policy either through
compromise or by ‘avoiding making decisions when none of the participants
in the deliberations is willing to compromise’ (Mitchell,
2005: 205).

Even when states share a motivation to take collective action and

develop a consistent vision of the goals of such action, significant
obstacles may arise with respect to what actions to take.
Agreement on the need for action need not imply agreement on
many institutional design elements, including how much action to
take, how quickly, by which actors, and with which actors bearing
the costs. Environmental problems that require ongoing management
rather than one-shot solutions (see below) may generate significant
disagreement over decision-making procedures, (like
voting) that will be used in revising institutional rules. What pollutants
are banned and which restricted, what species are listed as
endangered and which merely as threatened, or when and how fish
stocks are protected can all become crucial aspects of negotiations
that can then become deal-breakers. When environmental protection
entrains high economic costs, transparency about the actions
of all relevant states and sub-state actors may become crucial and
devising acceptable inspection procedures may slow or prevent
agreement.
Negotiation progress is fostered by ‘deft diplomacy’ that involves
the ability to ‘add and subtract issues to facilitate the bargaining
process, craft the terms of negotiating texts, and broker the deals
needed to achieve consensus’ (Young, 1998: 23; see also Sebenius,
1983). Although material resources are helpful, diplomats, bureaucrats,
or NGO and corporate representatives can often facilitate
agreement without them (Young, 1998: 23). Good diplomacy often
entails getting states with competing positions to focus on the
underlying interests they seek to promote through the negotiations,
thereby shifting from positional, distributive, or zero-sum
bargaining to interest-based, integrative, or win-win bargaining
(Fisher and Ury, 1981). The former tends to produce failed negotiations
or agreements that incorporate suboptimal compromises,
whereas the latter, though harder to achieve, tends to produce
agreements that simultaneously address the concerns and interests
of all relevant actors (Fisher and Ury, 1981: 5). Integrative bargaining
also increases the support of participating states for an agreement
and – because it reflects and meets those interests – makes it
more likely that they will find it in their self-interest to fulfill their
treaty obligations (Humphreys, 2001: 125).
Negotiation success involves notmerely identifying a zone of possible
agreement intersection among the pre-existing interests of the
states involved (the) but also in convincing states to clarify and/or
re-evaluate their interests (Raiffa, 1982). When states rely on distributive
bargaining or efforts at integrative bargaining fail to identify
mutually acceptable solutions, negotiations may fail altogether or
produce ‘least ambitious program’ solutions in which countries agree
to do little more than what they would have done anyway (Underdal,
1980; Hovi and Sprinz, 2006).
Assuming that bargaining generates mutually acceptable – if not
the best possible – provisions, a second phase of building support
for the negotiated agreement commences. Countries that have
accepted existing terms must be prevented from re-opening provisions
for negotiation and other countries must be convinced to
accept existing agreement terms without adding or changing provisions
that would make the agreement unacceptable to existing supporters.
Joint agreement on a treaty text does not preclude states
from reverting to distributive bargaining strategies designed to
improve the benefits they receive fromthe agreement even if this is
at the expense of other parties. And consensus among those states
most active in negotiations must be broadened to those that may
have had less say in designing certain provisions but are still crucial
to the final success of the negotiations. Those seeking to foster IEA
formation must convince all relevant states – mutually and simultaneously
– to accept the agreement’s current terms rather than to
continue negotiating for better terms or to walk out of the negotiations
(Ikle, 1964: 59–60).
The willingness of states to accept the set of provisions that constitute
an international treaty also reflects what Putnam calls ‘twolevel
games’ (Putnam, 1988). Negotiations among governments are
conducted in a context in which each government’s representative
recognizes that they must find positions that are simultaneously
acceptable to other governments and to their own domestic constituencies.
NGOs and the media can serve as communication channels
by which negotiators learn about the preferences of their
constituencies and those constituencies learn about the proposals
and likely actions (or inaction) of their governments, with negotiations
involving a process in which governmentsmay ‘discover’ their
interests as much as they attempt to further those interests.
Discourse, framing,
and negotiation dynamics
Negotiations involve both rationalist elements in which ‘identifiable
and fixed’ preferences are inputs to the process and constructivist
elements in which preferences develop during and through the
process, leading to outcomes that may differ significantly from what
any participantwould have predicted at the outset (Zurn, 1998: 627).
The inability of those involved, let alone others, to predict negotiation
outcomes highlights the influence of the process on those outcomes.

Often states have ‘well-developed conceptions of their own interests’

with respect to an environmental problem(in terms of ecological vulnerability,
abatement costs, etc.) that they bring to, andmaintain during,
negotiations (Young, 1998: 97). And in such cases, states attempt,
offensively, to promote their interests through institutional creation
and design and, defensively, to protect their interests from institutional
encroachment. However, international environmental negotiations
are not merely venues for governments to lay out their
positions to determine if an area of agreement exists or to bully or
entice others to accept their positions. Negotiations can include such
dynamics but can also include ‘communicative action’ in which governments
attempt to argue and persuade and, to varying degrees, are
open to the arguments and persuasion of others (Risse, 2000).
States’ interests and preferences tend to be less clear and less stable
when issues are complex, knowledge is uncertain, and material
interests are ‘weakly or ambiguously affected’, features that are typical
ofmany environmental problems (Stokke, 1998: 132–133; Zurn,
1998: 629–30). States may have insufficient information to know
what is in their own interests and, even if they do, may not know
which of various possible agreements would best promote those
interests.Mutual agreement is created not by formulaicallymapping
the intersection of states’ pre-existing interests but through a
dynamic process in which negotiators initially ‘focus on a few key
issues and then … [develop] a negotiating text setting forth proposed
provisions relating to these issues’ (Young and Osherenko,
1993b: 12). States do not just restate their positions but listening to
the arguments of and respond to proposals from other states, nonstate
actors, or individuals, looking for creative, integrative solutions
that promote their interests and those of others.
Long-term trends in the scientific framing of environmental issues
and international political and legal norms influence what problems
negotiations attempt to address and what types of solutions agreements
incorporate. On the scientific side, IEAs in the early twentieth
century were primarily bilateral and regional efforts to protect
individual species as natural resources to facilitate continued human
harvest,while agreements today address amuchwider array of issues
including pollution and habitat degradation, adopt a much more
ecosystemic approach, and are often global in character (Mitchell,
2003). Modern environmental treaties often reference non-environmental
issues, such as economic development and the rights of
women and indigenous communities. IEAs also reflect legal norms
and precedents. Negotiators do not create agreements from ‘scratch’
but look instead to prior agreements for both general strategies and
specific provisions. At a broad level, successful prior institutions have
provided models – for example, framework-protocol approaches or
calls for the use of precautionary measures – that have become
increasingly common in environmental treaties (List and Rittberger,
1998: 70–71). At a narrower level, the non-substantive parts of agreements
including amendment, entry into force, andwithdrawal clauses
are often treated as boilerplate, reading almost identically across a
wide range of agreements (Depledge, 2000).
Maintaining momentum
and prompting action
Precisely because of the complexity of addressing many environmental
problems, negotiations are fostered by actors committed to a
successful conclusion of the negotiations rather than to ensuring a
particular nation’s interests are furthered by an agreement.
Representatives of international organizations such as UNEP, of particular
states, or of NGOs often take actions that are designed simply
to maintain momentum. Obstacles to agreement always arise.
Conferences can end before agreement can be reached. External
events may focus policy makers on other issues. When such forces
make reaching agreement more difficult or less urgent, maintaining
‘political momentum’ becomes crucial (Young, 1998: 87–88). NGOs,
for example, canmobilize international opinionwhen agreements are
nearing completion or require ratification. Entrepreneurial leaders
will often prepare proposals in advance, waiting for the political conditions
to ripen, as was evident in UNEP executive director Mostafa
Tolba’s proposals on ozone negotiations (Keohane, 1996: 26; Young,
1998: 119).
External events also can increase the prospects for success (Young
and Osherenko, 1993b: 14; Hasenclever et al., 1997: 54–5). Largescale
conferences or agreements in one arena can spark interest in
negotiating other IEAs. The 1972 UN Conference on the Human
Environment and the 1992 UN Conference on Environment and
Development reflected existing environmental concern but
also reinforced and heightened that concern, with governments
signing several agreements at, and subsequent to, both conferences.
Governments may favor continuing to negotiate on a problem until
newscientific evidence or increased public pressuremakes reaching
agreement the more attractive strategy (Young and Osherenko,
1993b: 15). Focusing events can put environmental problems on the
international stage (see Chapter 4) but also can foster agreement
after negotiations have begun. Especially when dramatic environmental
problems affect powerful countries, they can ‘engender a
sense of urgency that spurs quick action to conclude international
agreements’ (Young and Osherenko, 1993b: 15). Focusing events
cannot generate agreement out of thin air but, if negotiations have
made enough progress, such events can generate domestic political
pressures that may lead a range of governments to accept agreement
terms that were previously unacceptable or to negotiate more
flexibly. However, focusing events are not necessary for negotiation
success; IEAs are often signed through the mundane but sustained
efforts of committed countries and negotiators finding agreements
that meet all the relevant countries’ interests.
The role of leadership
All the foregoing dynamics, in turn, are fostered by actors who provide
leadership. In trying to move negotiations along, leaders use
various resources to increase knowledge, raise concern, design
provisions, or maintain momentum. Structural leaders use material
power, entrepreneurial leaders use negotiating skill, and intellectual
leaders use ideas to resolve conflicts and disagreements in
ways that relevant actors are willing to accept (Young, 1991).
Negotiations often succeed only ‘when effective leadership
emerges’ (Young and Osherenko, 1993a: 233). Though it may be
difficult to identify independently and beforehand what leadership
is, certain traits seem to promote negotiation success. Structural
leadership often plays an important role in negotiations, when
powerful states want agreement to be reached and are willing to
expend resources to get otherwise-reluctant actors to come to the
negotiating table and to accept agreement terms (Hasenclever
et al., 1997: 77). For example, the United States has used its economic
and diplomatic power to get both reluctant states to participate
in environmental negotiations and already participating states
to accept regulatory proposals that they might otherwise have
found unattractive (Barkin and DeSombre, 2000; DeSombre, 2000).
Intellectual leadership also can foster international environmental
negotiations (Young, 1991). Diplomats skilled at introducing
new ideas, re-framing existing ideas, or shaping the discursive context
can facilitate agreement by identifying realms of common
interests or by getting actors to reevaluate their interests and positions
so that agreement becomes possible.
Entrepreneurial leaders can use their personality, personal credibility,
political capital, and material resources to convince various
actors to accept the current terms of an agreement as, if not the best
possible terms, at least the best that are likely to be available. The
leaders or foreignministers of individual countries, the heads ofUNEP,
and the Secretary-Generals of many international environmental
secretariats have dedicated their time, resources, and reputations to
keeping such negotiations going and bringing them to fruition.
Individuals can become ‘determined champions’who promote certain
proposals and stage catalytic events to prompt action at crucial junctures
(Haas, 1992a: 222; Young and Osherenko, 1993b; Young, 1998).
By creating a conducive negotiating forum and having a draft text
‘ready to go’, entrepreneurs can take advantage of the ‘policy windows’
that open upwhen catalytic events occur (Kingdon, 1995: 165).
Influences on Institutional Content
The previous section outlined factors that influence whether an IEA
forms. This section outlines factors that influence their content of
IEAs. IEAs vary in choices as fundamental as the specificity and
ambitiousness of requirements to those as mundane as choices of
official languages and which country or organization will be the
depository for official documents. The theoretical and empirical
foundation for explaining institutional variation, although weak,
provides the basis for propositions about why some institutions
contain certain features and others do not.
Fundamental institutional form
IEAs vary in their fundamental institutional form. Young classifies
IEAs as regulatory, programmatic, procedural, or generative
(Young, 1999b). Regulatory institutions proscribe or prescribe
actions; procedural institutions establish procedures for regular
collective decision making; programmatic institutions allow states
to ‘pool resources’ for projects that would not be undertaken unilaterally;
and generative institutions create new and ‘distinctive
social practices’ (Young, 1999b: 28–31). These categories are ideal
types, with some real-world institutions fitting neatly into these
categories while others include elements from each. Various
aspects of problem structure (see Chapter 2) make the choice of
one or another of these alternatives more likely.
Generative institutions reflect efforts by ‘a community or a collection
of groups that join forces … to promote a particular set of
activities … [by] structuring the way parties think about problems’
(Young, 1999b: 40–1). Not surprisingly, then, such institutions are
common during the early stages of an international environmental
problem’s lifecycle when the definition of the problem is still in a
state of flux. Indeed, they are most common during the issue emergence
stage discussed in the previous chapter (and therefore they
receive little further discussion here).
Programmatic institutions tend to appear when states want to
faster scientific progress on problems that are poorly understood
or that few countries have developed plans to address.
Collaborative research efforts can generate more and higher quality
data, monitoring, analysis, and insights that can produce a more
complete picture of complex environmental problems than any
country can generate alone. LRTAP’s protocol for a program to
monitor and evaluate air pollution in Europe (known as EMEP), for
example, standardized and expanded environmental monitoring
and sped up cooperative research that produced Europe-widemodels
of the sources and recipients of acid rain precursors. States tend
to develop such scientific programs early on in an environmental
issue’s lifecycle to reduce uncertainty about the magnitude and trajectory
of an environmental problem, its causes and impacts, and
the availability and effectiveness of potential solutions. Such institutions
may also serve the more cynical purpose of ‘buying time’,
allowing states to quell demands to ‘do something’ with research
rather than action. States may also pool resources into programmatic
institutions to provide both incentives and resources for
states to undertake local environmental remediation. The Global
Environment Facility provides one example, with states contributing
resources to carefully screened projects that facilitate environmental
improvements that developing country governments would
not take without such assistance (Sharma, 1996; Young, Z. 1999).
Among environmental problems that are well understood and on
which states are ready to take action, regulatory and procedural
institutions predominate. Reading IEA texts clarifies the distinction
between these two institutional forms. Regulatory IEAs specify
behavioral proscriptions and prescriptions while procedural IEAs
create organizations to negotiate such proscriptions and prescriptions
in the future. Thus, the Kyoto Protocol and the Montreal
Protocol required certain member states to reduce their emissions
of greenhouse gases and ozone depleting substances by certain
dates. What makes these and similar institutions regulatory is not
whether the treaty language requires or merely encourages certain
behaviors but the fact that they specify the behaviors that states are
expected to take. By contrast, the texts of procedural IEAs include
no rules on behaviors that states must avoid or undertake but
instead delineate the institutional structures by which member
countries can generate such rules. Fisheries treaties rarely explicitly
ban or restrict fishing but, instead, identify a mandate and tasks
for decision-making institutions including such things as the frequency,
representation, and voting rules for meetings. The 1973
Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES), like many IEAs, blends these strategies,
specifying sets of rules that states must follow to protect species
facing different levels of endangerment and appendices of species
to which each set of rules apply while also creating a Conference of
the Parties to allow for the regular revision of those appendices.
Both regulatory and procedural institutions usually emerge
when states agree that a problem warrants resolution. States tend
to prefer procedural to regulatory institutions in three situations:
when the problem requires management rather than resolution,
when scientific uncertainty is high, and when political will is low.
First, environmental problems differ in whether they can be
solved or only managed, with states tending to create regulatory
institutions for the former and procedural institutions for the latter.
The nature of some problems allows states to establish onetime,
static rules which, if followed, would address the problem to
the satisfaction of the states involved – those rules require revisiting
only if states become more (or less) ambitious in their desire
to resolve the problem. States may establish institutions to allow
for such revisions but those institutions tend to focus on the implementation
of existing rules rather than the formulation of new
ones. In such settings, states can establish bans or fixed limitations
on some activity and feel that the problem has been addressed. By
contrast, the nature of other problems dictates the need for ongoing
management, with procedural institutions being required to
allow for adaptive regulation. Of course, whether a problem can be
solved or only managed depends on social definitions and framings.
Consider international whaling: early on, the ‘whaling problem’
was a Tragedy of the Commons among whaling states who
sought international cooperation to foster mutual restraint to
ensure the ‘orderly development of the whaling industry’.Whaling
states could not ‘solve’ this problem through a regulatory agreement
specifying a particular level of catch for the indefinite future.
Instead, as with most international fisheries, states created the
InternationalWhaling Commission as a procedural institution that
was mandated to meet annually to set quotas. By the mid-1980s,
however, the ‘whaling problem’ had become a power struggle
between whaling states and anti-whaling states about whether to
allow whaling at all. By 1986, the procedural institutional structure
remained but the challenge had become one that anti-whaling
states, at least, thought could be solved by banning commercial
whaling. Although annual meetings continue, the politics involved
have changed this procedural institution into a regulatory one.
Second, scientific uncertainty also predisposes states toward
procedural rather than regulatory institutions. The increasing
adoption of framework-protocol strategies in IEAs reflects the
desire to initiate international cooperation through procedural
frameworks when uncertainty is large (and states are either
reluctant to accept regulation or unclear as to what the best regulatory
strategy is) and to establish regulatory protocols as the
problem and concern about it became clearer. Thus, the 1985
Vienna Convention for the Protection of the Ozone Layer required
only that states ‘co-operate in the formulation of agreed measures,
procedures and standards’. States established clear targets
and timetables for the phasing out of ozone depleting substances
(ODSs) in the 1987 Montreal Protocol and revised those targets
and timetables in subsequent amendments, with each modification
reflecting greater certainty about the magnitude and causes
of the problem, the costs of solutions, and the willingness of states
to accept regulation. Those changes have transformed the ozone
regime from procedural to regulatory as the complete phasing out
of many ODSs became technically and economically possible.
Procedural institutions are designed to foster just such modifications
of regulations in response to new knowledge. The United
Nations Framework Convention on Climate Change (FCCC) has
adopted a similar institutional form but, unlike the ozone regime,
is unlikely to become a regulatory institution. Like the Vienna
Convention, the FCCC itself established only vague requirements
but did create a Conference of the Parties tasked with, inter alia,
negotiating more substantive protocols. However, unlike the
ozone regime, the climate change regime is likely to remain procedural
since the economic processes that produce greenhouse
gases have few technologically available and economically attractive
alternatives and therefore climate change is much more likely
to require long-term management than one-off solutions. As with
climate change, international fisheries involve environmentally
harmful behaviors that states are unwilling to wholly ban and,
hence, require adaptive management with regulations revised in
response to environmental, economic, and political feedback
(Arvai et al., 2006).
Third, states prefer procedural to regulatory IEAs when there is
sufficient political will to take joint action on some but not all
aspects of a problem. The CMS agreement is designed precisely to
address this dynamic. Appendix I of the CMS convention listsmigratory
species that are endangered, whereas Appendix II lists migratory
species that are threatened and that require or would
‘significantly benefit from’ international agreement. When the
CMS agreement was signed, Appendix I listed those species that all
member states viewed as endangered and banned all killing of
such animals. Appendix II listed those species over which member
states disagreed about the status, need for action, and type of
action that should be taken. For Appendix II species, the parties
created a procedural strategy of requiring only that relevant states
‘endeavour to conclude Agreements’ for the conservation of those
species. Notably, those provisions have generated six treaties and
eight Memoranda of Understanding that do delineate specific rules
for protecting particular Appendix II species.
Incorporating science
Regardless of the institutional form, addressing environmental problems
effectively usually dictates the establishment of mechanisms
to incorporate scientific advice into policy making. States may create
procedural institutions for problems that are known to require
adaptive management. But even in IEAs addressing well understood
problems, states may establish mechanisms to ensure a ready
forum for the discussion of new science about related problems.
Such scientific ‘institutions’ may involve simply coordinating existing
national research programs or exchanging data, scientific findings,
and scientific personnel. But states may establish deeply
collaborative monitoring and research that could not go on otherwise.
LRTAP’s EMEP program, noted above, dramatically expanded
the network of European monitoring stations and improved data
collection, analytic techniques, and national research capabilities.
Many international environmental treaty organizations rely on
subsidiary scientific bodies. Others rely on scientific advice from
independent scientific bodies. The International Council for the
Exploration of the Sea, the Scientific Committee on Antarctic
Research, and the IPCC are all international institutions that provide
unsolicited reports and solicited advice on existing (and
emerging) environmental problems. These institutions reduce
scientific uncertainty but also help generate a commonly accepted
body of knowledge and perceptions of a problem. They can transform
a patchwork of national scientific research into a single
international ‘understanding’ of a problem. Such common understandings,
in turn, facilitate agreement on substantive and regulatory
provisions, by making the problem seem larger, more urgent,
or easier to resolve, and by reducing disagreement over what the
problem is.
Allowing flexibility
Beyond scientific uncertainty, states are concerned about interest
uncertainty, that is, the uncertainty they have about the current and
future interests of their own and other states with respect to an
environmental problem. Such uncertainty leads states to negotiate
flexibility into international institutions (Koremenos et al., 2001).
Even problems whose nature and causes are clear may leave states
behind a ‘veil of uncertainty’ with respect to who will be ‘losers’ and
who will be ‘winners’. Such uncertainty may make states more cautious
in reaching agreement or, alternatively, may lead them to
negotiate agreements that maximize their flexibility to revise or
legally renege on their commitments if these prove more costly
than expected.
Creating procedural rather than regulatory institutions allows
states to adopt and modify commitments progressively as the
costs of those commitments become clearer. Alternatively, if
states have enough environmental concern and political will to
adopt regulatory rules, they may create ‘relief valves’ to avoid
institutional conformance becoming too costly (Rosendorff and
Milner, 2001). Almost all international treaties contain standard
provisions that allow states to withdraw after notifying other
states and waiting for a specified period of time. IEAs often provide
additional and more ad hoc means of avoiding treaty obligations.
IEAs allow states to join ‘with reservations’, to continue
otherwise-banned practices if these are undertaken in certain
ways, or to file ‘objections’ or opt out from particular provisions.
Thus, having objected to the 1986 ICRW moratorium on commercial
whaling, Norway has killed numerous whales commercially
while remaining a treaty member in good legal standing.
Although such flexibility provisions are often viewed as ‘loopholes’
by environmental activists, they are often included precisely
because, without them, states central to the institution’s
success would choose not to join.
Variation in regulatory institutions
Unlike variation within procedural, programmatic, and generative
institutions, variation within regulatory institutions has received
considerable scholarly attention and is therefore discussed more
fully here. Regulatory institutions attempt to induce behavioral
change through their primary rule systems, their information systems,
and their response systems (Mitchell, 1996).
Primary rules
International institutions exhibit considerable variation in their
central prescriptions and proscriptions or primary rules. Because
most environmental problems can be addressed through various
alternative regulatory strategies, decisions about which activity to
regulate and how to regulate it will dictate which actors with what
interests and capacities must change their behavior, how large
and costly those changes will be, and whether other factors will
reinforce or undercut subsequent incentives to meet agreement
obligations. Negotiators pay particular attention to variation across
strategies in the costs their country will incur, the benefits they
might receive, and the likelihood that other states will fulfill the
commitments involved. Four characteristics of primary rules that
are often central to international negotiations are concerns about
ambitiousness, specificity, common vs differentiated obligations,
and equity.
The primary rules or obligations states accept vary considerably
in how ambitious they are, that is, in the ‘depth’ of required behavioral
changes (Downs et al., 1996). Theory suggests that states
accept only ‘shallow’ agreements involving few, if any, costs for
member states. Empirical evidence, however, shows that sometimes
states do create IEAs that prove costly, sometimes with the
states being aware of those costs at the time and sometimes with
those costs only becoming evident later. The strength of state preferences,
and conflict among those preferences, will influence the
ambitiousness of institutional goals. Weak concern may cause
negotiations to fail. But when it doesn’t, states may start small with
framework conventions, cooperative research programs, or nonbinding
agreements. Such outcomes may reflect universally low
concern, an inability to resolve conflict between concerned and
unconcerned states, or high concern but uncertainty about the best
way to address a problem. Indeed, the nature of solutions shapes
support and opposition as much as the nature of the problem.
Proposed IEAs that are not ecologically ambitious may, nevertheless,
generate resistance if their design involves high costs or
imposes costs on powerful economic sectors. Thus, the FCCC and its
Kyoto Protocol have evoked considerable resistance even though
emission reduction goals fall far short of what climatologists consider
necessary to prevent climate change. Regimes that seek deep
cooperation, provide little flexibility, or involve stringent enforcement
will evoke resistance unless states see sufficiently large offsetting
benefits (Downs et al., 1996). Notably, framework-protocol
approacheswork precisely because stateswill accept non-ambitious
collective decision-making rules with the hope that they will produce
more ambitious agreements later.
In general, more international concern generates more ambitious
primary rules. The greater the share of relevant actors who
are leaders rather than draggers, the more ambitious the agreement
will be. Ambitiousness is properly evaluated not by simply
looking at the constraints or requirements placed on states but also
by comparing those constraints and requirements to the counterfactual
ofwhat stateswould have done otherwise. Thus, an agreement
requiring the stabilization of emissions of some pollutant within 10
years may be more ambitious than one requiring a 50 per cent
reduction within five years if the states in the former all had
increasing emissions while those in the latter either had already
made, or were on emission trajectories that would have lead them
to make, large reductions. Thus, an IEA’s ambitiousness is the
degree to which states agree to take actions when matched by others
that they would not take on their own.
A tradeoff also exists between ambitiousness and participation.
Common wisdom suggests that successful negotiations require
involving all states that have an interest in a problem (Young and
Osherenko, 1993b: 16). Yet a set of ‘contingent leaders’ – each of
whom is willing to take meaningful action but only if others do –
can pursue more ambitious goals if they exclude recalcitrant
draggers. Scandinavian states often have established high environmental
standards even though other major contributors to the
problem are unwilling, at least initially, to agree to those terms.
Statesmay create institutions that address only a fraction of a problem
or engage only a fraction of the perpetrators, either because a
partial solution is better than no solution or because they believe
some initial steps will foster conditions that will lead currentlyreluctant
states to participate. This ‘go it alone’ power can allow an
activist subset of states to reach an agreement despite the opposition
of powerful states that are contributing to a problem (Gruber,
2000). Just as the six states that initiated the creation of the
European Union did so over strong opposition from the United
Kingdom, so too did states bring the Kyoto Protocol into existence
despite clear opposition fromthe United States. Institutions that ‘go
it alone’ are weaker than they might be but can still allow committed
states to initiate international action without being held
hostage by powerful dragger states.
IEAs also vary considerably in specificity, with some containing
only vague provisions and others detailing pages of rules, requirements,
conditions, targets, and timetables. When states are unconcerned
or uncertain about how an environmental problem is
affecting their interests, they aremore likely to generate vague provisions
in unambitious agreements. This lack of specificity can arise
when a consensus regarding the need for action is not matched by
a consensus on what to do. Vague provisions can also arise when
states that have not found real compromises respond to pressure to
reach an agreement – such as happens at the end of a diplomatic
conference – by ‘papering over’ their differences (Mitchell, 2005).
But a lack of initial specificity can provide the foundation for
greater specificity over time. Thus, the Wetlands Convention
includes many quite vague rules, one of which requires only that
states promote the ‘wise use’ of wetlands in their territory.
However, since 1971 the Conference of the Parties has made considerable
progress in attaching substantive meaning to this vague
phrase.
IEAs also vary in whether they contain common or differentiated
obligations. Traditional international law has relied on ‘common’
obligations in which each member state accepts the same regulatory
requirements. Several recent IEAs, however, have adopted ‘differentiated’
obligations in which different groups of states or even
individual states are treated differently. As an extreme, in the Kyoto
Protocol 39 developed countries committed to country-specific
emission limits or reductions that ranged from8 per cent decreases
to 10 per cent increases. A less extreme variant ismore common, as
was evident in the Montreal Protocol’s granting developing, but not
developed, states a 10-year ‘grace period’ with respect to the ODS
phase-out timetable. Other agreements’ rules involve nominally
common obligations that were known at the time to distribute the
behavioral burden unevenly. States collectively committed in the
Second Sulfur Protocol to the LRTAP Convention, for example, to
prevent sulfur depositions from exceeding certain levels but that
commitment was known to require much larger emission reductions
from some states than others. These examples are exceptions,
however, and most IEAs still adopt common obligations that, nevertheless,
impose different costs in practice.
What accounts for this difference in approach? Certainly the
norm that agreements should impose equal obligations on all
parties makes common obligations the default model. But states
now appear to strive toward common obligations while being open
to accepting differentiated obligations to get agreement among
states with divergent interests and levels of concern. Those interests
may divide states into two groups, as in the Montreal Protocol,
ormay leave states farmore differentiated, as in the Kyoto Protocol.
Differentiated obligations appear to be more a last, than first,
resort, if only because they can easily be framed as politicallymeaningless,
shallow agreements that codify states’ planned behaviors
rather than prompt new ones.
All three types of obligations present problems: nominally equal
requirements can impose quite unequal costs in practice; considerable
variation within groups of developed or developing countries
means that some will benefit far more than others within either
group; and allowing the self-selection of commitment levels may
mean that states agree only to those actions they would have taken
anyway. Yet all three have the virtue of simplicity, considered
crucial to negotiation success, and parties appear more willing to
accept obligations of these three types than the range of alternatives
involving more complicated formulas (Young and Osherenko,
1993b: 14, 233).
Finally, negotiations ‘succeed only when all the major parties and
interest groups feel that their primary concerns have been treated
fairly’ (Young and Osherenko, 1993b: 14, 233; see also Young andWolf,
1992). By definition, negotiations succeed only when relevant parties
accept their terms. Indeed, it becomes tautological to contend
that equitable solutions foster agreement if we define an agreement
as ‘equitable’ so long as all the negotiating states accept it. Yet, we
can distinguish here between agreements that all relevant states
consider as in their interests and those they see as equitable. States
are unlikely to accept agreements that do not reflect their interests
and may accept agreements that further their interests even if the
costs involved, or the benefits of, the agreement appear inequitable.
However, they are more likely to accept agreements that further
their interests and that also meet ‘identifiable community standards
of equity’ (Young and Osherenko, 1993b: 14). Such standards
do not require equal treatment, only that differential treatment be
based on criteria that each state views as appropriate.
Information systems: environmental and
behavioral monitoring
Regulatory IEAs also vary in their information systems. Some IEAs
encourage countries to exchange the environmental information
they already collect while others provide for extensive new environmental
monitoring. Some IEAs coordinate and standardize data collection
to foster the development of higher quality information about
the magnitude, causes, and impacts of a problem. Others have created
networks of scientists and monitoring stations and have pooled
funding with countries with more advanced monitoring programs
helping other countries develop theirs. IEAs also treat the information
they receive differently. Some IEA secretariats simply archive
the information they collect, while others organize, analyze, and disseminate
the data to foster better environmentalmanagement.What
explains such variation? As with ambitiousness, the level of concern
and the magnitude of potential impacts play important roles. When
states share significant concern about a poorly understood environmental
problem, they will invest more in gathering information that
can help themtake action early enough to avert those impacts. To the
extent that such impacts are thought to be small or of little concern,
committing such time and resources becomes less attractive.
Beyond environmental monitoring, IEAs also vary in their concern
with behavioral monitoring and transparency. With respect to
regulated behaviors and compliance, most IEAs rely almost exclusively
on countries providing self-reports. Recognizing both the
practical obstacles to reporting and that states are unlikely to
engage in ‘self-incrimination’ if sanctions are the likely response,
some IEAs establish reporting systems that provide positiv e incentives
for, and build the capacity to, report (Mitchell, 1998b). Several
IEAs hold workshops to help states develop the infrastructure
needed to provide high quality information on their country’s performance.
Although intrusive monitoring systems are still rare, rising
environmental concerns may make these more common in the
future.
Whether IEA provisions focus on compliance information depends
on the ‘violation tolerance’ ofmembers regarding the problem.When
states believe that the failure of other parties to meet their obligationswill
harmtheir interests, will alter their own interests inmeeting
their own obligations, or will undercut the IEA’s ability to
achieve its objectives, they are likely to demand relatively intrusive
inspection procedures. Some institutions rely on proactive monitoring
to identify behaviors that might not otherwise come to light
(‘police patrols’) while others rely on passive strategies that assume
that environmentally harmful activities will harm certain actors who
enough to lead them to report them (‘fire alarms’) (McCubbins and
Schwartz, 1984; Raustiala, 2004).Most violations ofmarine pollution
agreements, for example, occur in ways that are difficult to detect or
difficult to link to the perpetrating actor. In response, some states
have established regional ‘port state control’ agreements to coordinate
and encourage aerial surveillance and the in-port monitoring of
international shipping (Kasoulides, 1993). Likewise, CITES established
an elaborate system of species import and export certificates
(Reeve, 2002). By contrast, the Convention on Early Notification of a
Nuclear Accident that arose in response to the Chernobyl incident
relies exclusively on self-reporting by the state in which an accident
occurs. Yet other IEAs involve NGOs in the institutional structure as
actors who have both incentives and resources to serve as ‘police
patrols’, watching out for the behaviors of governments and substate
actors who may violate IEA rules. Choices among monitoring
systems depend on evaluating the perceived need formonitoring and
then looking for strategies that can meet that need.
Response mechanisms
Finally, regulatory IEAs vary in how they respond to regulated behaviors.
Scholars have identified various institutional design implications
based on distinctions in the constellations of states’ interests,
including distinctions among assurance, coordination, collaboration,
and suasion games; coordination and incongruity problems; symmetric
and asymmetric problems; conflicts over values, means, relatively
assessed goods, and absolutely assessed goods; and commons problems,
shared natural resource problems, and transboundary externalities
(Martin, 1992b; Hasenclever et al., 1997; Underdal, 2002).
The direct tit-for-tat that can discourage violations of trade and
arms control treaties proves less useful in environmental realms
where states that support IEAs are generally unwilling to harm the
environment as a retaliatory sanction and, even if they did, would
fail to influence perpetrating states unconcerned about the environment.
Recognizing this, many scholars have stressed the need
to couple economic sanctions with monitoring mechanisms that
trigger them (Bernauer, 1995a: 363; Downs et al., 1996;Wettestad,
1995). Others argue that such an enforcement model is less effective
than a more ‘managerial’ model of diplomacy, norms, and
rewards (Chayes and Chayes, 1995). Indeed, rewards appear to be
the only option for inducing ‘upstream’ actors to alter their behavior
(Mitchell and Keilbach, 2001).
IEAs also attempt to induce behavioral change through ‘systems
of implementation review’ and ‘sunshinemethods’ involving reporting,
monitoring, and review without any explicit or direct response
(BrownWeiss and Jacobson, 1998; Victor et al., 1998a). Ecolabeling,
certification, and prior informed consent rules may induce behavioral
changes via marketplace incentives. IEAs also incorporate
norms, argument, and persuasion in their efforts to influence behavior
by altering notions regarding appropriate and inappropriate
action (Finnemore, 1996; Risse, 2000). Thus, general norms
regarding the appropriate relationship between environmental protection
and development or regarding the precautionary principle can,
over time, significantly alter how states respond to environmental
problems, even if that causal influencemay prove hard to demonstrate.
Choices as to how an international environmental institution
should respondwhen states do, or do not, alter their behavior tomeet
IEA commitments are influenced by the underlying problem structure.
IEAs addressing upstream/downstream problems do not
include sanctions because upstreamstateswill not accept agreements
that legitimize the right of other states to sanction themfor behaviors
that, pre-institutionally, the other states could not legitimately sanction
(Mitchell and Keilbach, 2001). The Montreal Protocol illustrates
that ‘upstream’ states which contribute to – but view themselves as
unharmed by – an environmental problem will not participate without
some reward: India, China, and other developing countries that
contributed to, but were unconcerned about, ozone loss joined the
Protocol only after industrialized and concerned (that is, ‘downstream’)
states compensated them for the costs of phasing out ODSs.
In the 1976 Convention on the Protection of the Rhine against
Pollution by Chlorides, the French agreed to reduce their chloride pollution
of the Rhine only in response to payments by the downstream
Dutch government, with contributions from Germany and
Switzerland. Notably, institutional inertia also influences institutional
form,with the burden-sharing in that agreement incorporated in subsequent
agreements on Rhine pollutants that had few similarities
(Bernauer and Moser, 1996). Rewards may, however, make potential
donors more reluctant to join the institution even as they attract
potential recipients.
Although sanctions are a non-starter in IEAs addressing upstream/
downstream problems, states must choose between rewards
and sanctions in Tragedies of the Commons situations. In some cases,
states can use the threat ofmutual retaliation to support cooperation.
Thus the underlying, if often implicit, incentive for states to stay
within international catch quotas is the threat that excessive violations
by one party will lead others to do the same and, hence, a reversion
to the no-institution baseline of unrestrained fishing. Particularly
in situations involving over-appropriation of an environmental
resource, such retaliatory threats may help sustain international
cooperation, though the poor track record of most fishery IEAs
demonstrates that they do not always do so. In most cases, however,
states adopt more diffuse, indirect, and unspecified reciprocity as an
‘enforcement’ mechanism. For example, the United States has frequently
used the removal of fishing rights as a response to behaviors
by whaling states that it viewed as undermining the effectiveness of
the IWC (DeSombre, 2000). In such contexts, states recognize that
they may avoid the ‘unraveling’ of cooperation that tit-for-tat sanctioning
would produce by providing states that are supportive of an
IEAwithmechanisms for themto take actions that harman initial violator’s
interests without asking them to engage in environmentallyharmful
activities, which they would be unlikely to adopt in any event
(Axelrod and Keohane, 1986). However, states can use rewards as
well as sanctions to address Tragedy of the Commons situations.
Coase (1960) argued that externalities can be resolved by victims paying
perpetrators to halt harmful activities. Thus, in response to the
overharvesting of North Pacific fur seals, Canada, Japan, Russia, and
the United States agreed in 1911 that the former two countrieswould
stop all seal harvesting in exchange for the latter two countries compensating
them in the form of 15 per cent of their seal harvests every
year (Dorsey, 1998).
Response strategies can also include capacity building. IEAs increasingly
seek to influence non-compliant countries bymaking it easier for
themto fulfill their obligations. Negotiators increasingly recognize that
non-compliance for certain states can arise as much from incapacity
and inadvertence as from intention (see Chapter 6). They also recognize
that sanctions are neither appropriate nor effective if states cannot,
rather than will not, meet their obligations. Non-compliance is
necessarily intentional inmany IEAs: consider the trade in endangered
species; the harvest of fish,whales, or polar bears; or river or ocean pollution.
In others, however, IEAs require the deployment of financial
resources or technical expertise that developing states may not have
available. When an IEA requires states to protect fragile ecosystems
fromlarge-scale socio-economic forces or to provide high quality environmentalmonitoring,
both developed and developing statesmay support
establishment of mechanisms that urge non-compliant countries
to identify the causes of non-compliance so other countries can facilitate
that compliance.
Violation tolerance also influences the strength of the responses
adopted. States tend to be relatively ‘violation tolerant’ early on in
an environmental problem’s lifecycle, if only because that is the status
quo situation (Young, 1999b; Chayes and Chayes, 1993).
Responsemechanismsmay be relativelyweak or non-existent. But as
the issue’s importance or institutional developments make states
more sensitive to whether other states are fulfilling their commitments,
response mechanisms tend to become stronger.
In short, states build responses into IEAs that reflect the
expected sources of, and harm of, non-compliance. Where those
sources are seen as intentional, they are more likely to adopt
sanctions. Where those sources are seen as predominantly due to
incapacity and inadvertence, they are more likely to adopt some
form of facilitative approach. Where the possibility exists for both
types of shortcoming, they are likely to create institutions that
begin by investigating their sources and then allow for different
types of responses, an approach adopted in various amendments to
the Montreal Protocol.
Negotiation Participation
and Institutional Membership
Before an IEA can come into existence, negotiators must sell the
agreement to domestic constituencies. Negotiators may need to
convince their prime minister or president that their concessions
were more than offset by those of other countries and that the
agreement is in their country’s interests. Although uncommon,
examples do exist of states refusing to sign the very agreements
they helped negotiate. And countries involved in negotiations can
always reject the terms of a ‘final’ agreement in the hopes of reopening
negotiations to achieve better terms (Ikle, 1964: 59–75).
For most countries, international treaties do not become legally
binding or enter into force without legislative branch ratification
of executive branch negotiations. The two-level games mentioned
above require that negotiators convince domestic political actors –
including both legislators and citizens – with diverse interests and
perspectives that an agreement’s benefits exceed its risks and
costs and that no better agreement can be negotiated (Putnam,
1988). Not infrequently, government executives sign agreements
that their legislatures refuse to ratify, either because the executive
misjudged their domestic constituencies’ interests or because
those interests had shifted. Thus, the American government signed
the UNFCCC and its Kyoto Protocol, and ratified the former, but has
refused to ratify the latter. Many IEAs also have been signed but
have not taken effect because too few countries ratified the agreement.
The unwillingness ofmany states to ratify the 1973MARPOL
convention, for example, led to the negotiation of a 1978 Protocol
that revised provisions that otherwise would have precluded the
agreement from taking effect. While negotiators often feel pressure
to reach ‘some agreement, any agreement’ by the end of an
international conference, legislatures may feel no such pressure
and can then take years to consider whether to ratify an IEA.
Conclusion
Whether environmental negotiations end in agreement depends on
the constraints and opportunities created by structural factors,more
direct forcing or inhibiting events related to the influence of particular
actors and the negotiating process, and the influence of external
factors and prior conditions. Oran Young has called interests, power,
and knowledge ‘social driving forces’, while leadership, context, and
other variables are ‘cross-cutting factors’ that influence the negotiations
(Young and Osherenko, 1993a: 247). It is the interaction among
all these factors that helps to explain whether negotiations succeed
and what form any agreement takes. This chapter has delineated the
factors that make states willing to engage in negotiations, the factors
that influence the content of agreements, and the factors that influence
whether states become members of such agreements. The next
chapter takes up the questions of whether and when these efforts at
negotiation lead states to take actions that are any different from
those they would have taken in the absence of such agreements.