The Role of Process and Participation in the Development of Effective International Environmental Agreements: A Study of the Global Treaty on Persistent Organic Pollutants (POPs)

Abstract

I. INTRODUCTION The number of treaties in the environmental field has grown markedly in the past thirty years,(1) as people and societies have become increasingly aware of, and concerned about, the health of the global environment. Studies of these treaties have considered a number of questions relevant to their effectiveness. Some offer an in-depth review of key factors and personalities leading to finalization of a treaty, in essence setting forth its storyline.(2) Others identify important tendencies and difficulties present in negotiating treaties, such as the tendency to slide toward a lowest common denominator or to face long time lags before implementation.(3) Others emphasize a regime-oriented, problem-solving approach, and focus upon how key elements in a particular treaty regime generate -- or fail to generate -- incentives to change behavior in response to global environmental problems.(4) Some highlight questions of compliance and implementation, looking into other fields of public international law as potential models,(5) while others focus upon the role of international institutions.(6) Questions relating to the of treaty-making, including who participates in that process, certainly are not absent from these studies. In recent years, however, these questions are emerging more prominently as a focal point of analysis.(7) One explanation for this, perhaps, is that the growing level of experience in the field now presents a stronger basis to examine and participation themes. In addition, because the subject matter itself yields substantive issues that are both important and complex -- e.g., what normative standards should apply to address transboundary pollution -- matters of process might sometimes have received less consideration. Yet another explanation is worth considering. Public international law, and foreign policy more generally, have well-established histories and traditions about institutions and process. There are conventional understandings and experiences with the of diplomacy, how nations interact with each other and what the (limited) role is for international organizations and the public in this context. In the traditional model, international law is a law of nations. Governments, not individuals -- nor nongovernmental organizations -- have rights and are subject to obligations (e.g., under a treaty) in this model; they are the actors on this stage. Countries and regions have developed long-standing working relationships within this basic framework, and have created international organizations to facilitate and support their efforts. Today, some of these traditions and understandings are being challenged. One of the most dominant claims from the street protestors in the battle in Seattle in November 1999 (that accompanied the meeting of World Trade Organization (WTO) ministers in Seattle, Washington) was that the international trading system was making decisions that affect people's lives without allowing members of the public an opportunity to see and participate in the decision-making process. Many images have been displayed either of national government representatives or faceless international officials making decisions in secrecy and without accountability, including decisions that yield inaction on important matters. Similar concerns have been voiced over the years with regard to activities of other international organizations, such as the World Bank. Policymakers now devote significant attention to the nature and scope of public participation in the international policy process. Significant questions also exist about the extent to which all governments, especially those representing smaller countries, can participate effectively in international initiatives. These questions involve not just the formal rules of participation but resource constraints and other practical realities as well. Just as the issue of capacity among countries is relevant to the development of norms in international environmental treaties,(8) so too is it relevant to the question of how countries participate in treaty initiatives. …