A process of negotiation.

In this companion piece to his "Essay", Professor Koh looks back to the debates, deliberations and discussions that culminated in the UN Conference on Environment and Development (UNCED) in Rio de Janeiro.

In order to prepare for the Earth Summit, the United Nations decided to set up a Preparatory Committee (PrepCom). Its organizational session was held in New York from 5 to 16 March 1990. It had five objectives: to elect its chairman; to decide on the size of the Bureau and the distribution of the number agreed upon among the five regional groups; to decide how many working groups to establish and which regional groups would provide candidates for their chairmenship; to adopt a provisional agenda for the Earth Summit; and to adopt its rules of procedure.

Any reasonable person would think that you would need only one or two days, not two weeks, to agree on five such seemingly simple tasks. This was not the case, the two weeks were barely enough to complete our tasks. Of the five, the only simple one was electing me. All the other candidates wisely withdrew when they realized the pain and suffering which the chairman would have to endure for the next two years and three months! The first thing I did on assuming the chair was to propose that we should refrain from polluting the air in our meeting rooms by prohibiting smoking at all our meetings. Before the nicotine addicts could rally their forces, I asked if there was any objection. Seeing none, I banged the gavel and pronounced that there was a consensus in favour of my proposal. The then UN Secretary-General, Javier Perez de Cuellar, watched in surprise because no UN chairman had succeeded in defeating the tobacco lobby at the United Nations before.

The speed with which I used my gavel would give rise later to some unhappiness. As a result, I would count to five before banging my gavel. On one occasion, the chairman of the Group of 77, a wonderful man from Pakistan - Ambassador Jamshid Marker - remarked that my counting of 1, 2, 3, 4, 5 became faster and faster, the longer the meeting lasted.

I failed, however, to persuade my colleagues to accept a relatively small Bureau. For a Bureau to be efficient, it has to be representative, but small. Many delegations wanted to be in the Bureau because they thought that it might become a negotiating forum. In the end, I had to accept a Bureau of 42 members.

The most difficult task was in drafting the agenda. Why? Because delegations feared that the wording of an agenda item could tilt the balance in favour of their adversaries. On the last day of the organizational session, on 16 March 1990, there was still no agreement on the agenda. I was determined to get one. I instructed the secretariat to arrange for interpreters to be available, so that I could go through the night until 6:00 a.m. the next morning. The secretariat did not believe me and I had no interpreters after midnight. I had to persuade the non-Anglophones to work in English. This was by no means an easy task.

My strategy was to maintain the pressure on the delegates until they agreed to compromise. By 4:30 a.m., the delegates were so exhausted that they asked me to draft a compromise. I called for a short recess and with the help of about a dozen colleagues representing the various interest groups, succeeded in drafting one. I got my agenda. The meeting adjourned at 6:00 a.m. on St. Patrick's Day. I felt exhausted but vindicated in my determination not to adjourn the meeting until I secured an agreement. If I had adjourned, the pressure would have eased and delegations would again have dug in their heels. I also wanted to make the point to delegates and the secretariat that when I set a deadline, I meant to keep it. The secretariat never doubted my resolve again. At all subsequent sessions of the PrepCom and the Main Committee, I had teams of interpreters ready to serve the meeting through the night and into the morning of the next day on the final day of each session. On two subsequent occasions, I went through the night until 4:30 a.m. on the last day of the fourth substantive session in New York, and 6:00 a.m. on the last day of the Main Committee of the Earth Summit in Rio.

Managing a complex negotiating process requires both leadership and teamwork. I worked closely with the Secretary-General of the Conference, Maurice Strong, and the various members of the secretariat. Twenty years earlier, he was the Secretary-General of the Stockholm Conference on the Human Environment. I had worked closely with him in preparing for the Conference. The fact that our friendship went back 20 years helped us to forge a good working partnership. I kept no secrets from him and his deputy, Nitin Desai.

I expanded the collective leadership or collegium to include: the chairman of Working Group I, Ambassador Bo Kjellen of Sweden; the chairman of Working Group II, Dr. Bedrick Modan of Czechoslovakia; and the Rapporteur, Ahmad Djoghlaf of Algeria. I institutionalized the collective management of the negotiating process by holding meetings every morning at 9:00 a.m. with this group and the senior members of the UNCED secretariat. This would be followed by a daily meeting at 9:30 a.m. with the representatives of all the UN agencies. The purpose of the second meeting was to bring all the members of the UN family together and prevent turf fights and misunderstandings. It was also to tap the expertise and inputs of the various agencies.

The work of the PrepCom was carried out in four principal forums: the plenary and the three working groups. The agenda of the plenary was long and complex. It included the difficult questions of financing sustainable development and the transfer of technology from developed to developing countries. It also included such questions as the relationship between the environment, on the one hand, and poverty, population, the international economic order and human settlements, on the other.

In negotiation, timing is very important. A chairman who acts prematurely risks being rebuffed. A chairman who acts too slowly loses the opportunity to clinch a deal. I have observed that multilateral negotiations often pass through three phases: confrontation, crisis and resolution. A good chairman must not be unnerved by the phase of confrontation. He must wait for the period of crisis which often follows confrontration. It is at this maximum hour of danger and opportunity that he must strike and bring about a resolution.

Let me illustrate these general observations with the following concrete example. Working Group III, on law and institutions, was established at the beginning of the second substantive session in Geneva. It elected Bedrich Modan as its chairman. One of the items on its agenda was the drafting of the Rio Declaration on the Environment and Development, popularly referred to as the Earth Charter. At the beginning of the fourth substantive session, Dr. Modan offered a compromise draft consisting of 10 principles and 3 prerequisites. He moved too soon. Also, his draft was viewed, rightly or wrongly, by the developing countries as favouring the viewpoint of the developed countries. Because of this, the developing countries refused to continue to negotiate under his chairmanship. Instead, an informal contact group was established, whose members reported that they had gone as far as they could and were unable to make any further progress. They requested me to take care of the negotiations. I said I would be prepared to chair the negotiation provided they agreed to establish a small, closed, representative group of 16, eight to represent the North and eight to represent the South. The meeting agreed. I made another request. I asked the co-chairmen of the earlier informal group to produce a negotiating text by 6:30 p.m. on 1 April 1992. They did so and the group of 16 began its work at 8:00 p.m. of the same evening. A clean text, containing 27 principles, was agreed upon, ad referendum, at 6:15 p.m. on 2 April. This text would eventually be adopted by the Earth Summit as the Rio Declaration on Environment and Development.

Apart from the clean text of the Rio Declaration, the other documents submitted to Rio contained 350 bracketed or disputed language. We had only one week in the Main Committee to remove these brackets and to find acceptable language. I was not at all sure that the job could be done. I persuaded the Committee to adopt a number of procedural decisions. First, that the negotiation would focus entirely on the bracketed language. I ruled out of order any delegate who tried to reopen discussion on unbracketed or agreed language. I also rebuffed the attempts by several delegations to insert new brackets on the grounds that they had been inadvertently omitted by the secretariat. Fortunately, we had brought along the authoritative documents of the PrepCom. Upon verification, we found no merit in any of the requests. Second, I refused to allow any delegation to make a new proposal if it met with a single objection. The reason is that any new proposal must advance the prospect of achieving consensus. Third, I asked the Committee to allow me to establish nine open-ended negotiating groups, on the understanding that not more than three would meet concurrently. Fourth, I persuaded the Committee to work from Monday to Saturday and to meet morning, afternoon and evening. Fifth, I imposed a strict time-limit on the length of statements. Sixth, whenever the negotiation got stuck on a point, I would set up an ad hoc open-ended negotiating group to deal with it and appoint an able colleague to chair the group. In this way, I was able to keep the negotiation moving at a steady pace.

The final meeting of the Main Committee began at 8:00 p.m. on 10 June. It continued through the night and ended at 6 a.m. the next morning. I did take one short break, and the meeting resumed in a better mood. All bracketed language, excepting those relating to finance and forest, were resolved. Those two issues were referred to ministerial-level negotiations, chaired by Brazil and Germany, respectively. Consensus was achieved on them on 12 June. The Summit was, therefore, able to adopt on 14 June the Rio Declaration, Agenda 21, and the Statement of Principles on Forests by consensus. Thus ended the largest conference the United Nations has ever held. It was attended by 116 Heads of State or Government, 172 States, 8,000 delegates, 9,000 members of the press and 3,000 accredited representatives of NGOs.