23 Mar 2015
The birth of the concept of institutional bargain approach stems from the work of Oran R. Youngs criticism on the current rationalist and cognitivist approaches to define the regime formation. Schools of thought of the realist or neorealist highlights 'the existence of the dominant actors or hegemons possessing structural powers is a necessary condition for international regime formation or maintenance.'  In the other hand, the liberal-institutionalism stresses that 'a sizable number of self-interested states would coordinate their behaviours to maximize absolute gains by devising mutually beneficial institutional arrangements reducing transaction costs.'  The cognitive theorist underlines that 'it is the role of cognitive factors that influence the regime formation.' 
The process of negotiations in climate change poses huge diplomatic and legal challenges to international community. The complexity of the climate change negotiations especially its dependence on science for political decisions have produced two set of perspectives at the negotiations; these are the countries of the view that they 'would do something' to the problem and other countries of the view that 'would not do something' to the problem. Most importantly, climate change negotiations has a unique political dynamic. Power at these negotiations does not derive simply from the size of the economy, but it derives from the fact that how much the country is emitting Greenhouse gases. The countries that pollute the environment hold the most bigger bargaining power. This paradigm poses a huge obstacle to reach a balanced outcome at the climate change negotiations. The book by William Marson (2011)  highlights the flaws of the climate change negotiations in Copenhagen, stating that ' group of elite polluters: the United States, the European Union and China have chips to deal and so they rule the game'. The other barrier in ensuring a transparent negotiation lies on the issue of a paradigm shift in the environmental politics. The book by Pamela S. Chasek, David L. Brownie, Janet Welsh Brown (2010)  highlights that the paradigm shift in environmental politics has given rise to the participation of various actors in international environment negotiations and has drawn the climate change issue from dominant socio economic paradigm to the rise of alternative paradigm, in some cases making the problem of climate change a security issue. A collection of articles on the concept of equity  written by climate change negotiating experts of the BASIC  countries state the importance of having equitable access to atmospheric space and actions needed in mitigation and adaptation to come up with a long term global goal.
In addition, Steve Vanderheiden ( 2008)  aims at presenting the negotiations of the climate change as revisiting norms such as fairness, equity and atmospheric justice. According to Vanderheiden, it is imperative to address the climate change negotiations in a manner that promotes fairness based on the ideals of equity and national responsibility has practical and principle justification. Dieter Helm and Cameron Hepburn (2009)  highlights that despite the acceleration of research and scientific explorations on climate change, the policy formation in climate change still disconnected with the findings of science and explains as to why this disconnect prevails. Dieter Helm, analysing the pros and cons of the existing international regimes on climate change highlights also disparity between the share of responsibility in the mitigation efforts between the developing and developed countries and states that unless all the countries are shouldering the responsibility in terms of mitigation, any future agreement in this regard will not be effective.
With regard to the process of negotiation from Bali to Copenhagen, books by Abdrew E Dessler and Edward A. Parson ( 2006)  and a collection of articles in Political Theory and Global Climate Change by John Barry (2008)  and Negotiation capacity and strategies of Developing countries by Pamela Chesak and LavanyaRajamani ( UNDP report on Global Public Goods 2003)  and a UNDP report on sustaining human progress in a changing climate (2012)  present the argument of the disadvantages faced by the developing countries in international environment negotiations as they are being underrepresented or unrepresented at the key decision making moments. Even more so, an in depth analysis by Pamela S. Chasek in her book  on 30 years long negotiations on the Earth highlights the realpolitik of the environment negotiation and the reasons as to why an agreement is not feasible in the near future.
In addition, on the academic literatures, the theoretical framework presented by Young highlights most of the issue as he has been carrying out lot of research and studies on the governance of natural resources and regime formation on same and also through his intervention of the 'institutional bargaining' approach. In his book in 1989  , he has made an effort to explain the possibility of applying the international regimes and international institutions to address the problem of international coorperation on natural resources and environment. Also, another book by Young in 1994  is re-examines the basic issues focusing the distinction between governance systems and governments. Apart from regime formation it deals with the flaws of the international governance system and also it reaffirms the emergence of the concept of institutional bargaining as a method to create international regimes. In his books, Young (2002  and 2010  ), says that the climate change regime which us been created and in the process of being created does not account the nature of the problem, thus there is a mismatch between the character of the regimes created to address the nature of the problem.
Thus so far, the materials that have been referring to however, does not approach the process of negotiation through the lens of the developing countries which are not major emitters. For example, those countries which did not allow the Copenhagen Accord to be adopted at the Copenhagen climate conference, are not the major emitters nor they were financially powerful. They were belonging to an economic block in the Latin American continent and to the Small Island Developing States. Most of them were poor countries with least economic and political standing in the world affairs. Then how did Copenhagen go wrong and what was the reason for hundreds of other nations to rally around this small group of countries with weak or no economic power? According to the institutional bargain theory, it could be because of the power of transnational alliances as well as the breaking of the consensus rule. Through the theoretical analysis, this paper will examine the reasons for a small group of countries to win the climate battle without allowing it to divert the years long negotiations to fail. It also aims at examining the different tactics and strategies by major emitters in terms promising much and committing little and thereby utilizing the process of negotiation to produce yet again an international agreement which has taken into account the concerns of the most vulnerable and badly affected by the problem.
Critics of realism, neorealism and neoliberalism often states that these theories base their assumption on the same flaws and dynamics thus does not pay much attention to the process of negotiation. As stated earlier, most of the time, these theories explain why states cooperate rather than how they are cooperating and as to how the regimes are being formed. The approach of institutional bargaining display the dynamics and flaws of how states cooperate based on their interests which derive from their domestic realities. The main assumption of this approach is analysing the regimes through interests. Main features of the institutional bargain approach are highlighted as follows:
There are several actors in international institutions. Be it states parties which could be as low as 15 and there are international regimes which has 180 States parties and hundreds of observers from international organizations and civil society etc. In addition, the institutional bargain model base the assumptions on the consensus rule. It is normal for some parties to resist, reject an international negotiations, but it does not mean that the others who would want an outcome not to put their full effort in reaching an agreement, which all parties would be approving. Even though it may be difficult to reach politically an unanimous agreement, it is the basis for any agreement to come to life in the international system. Therefore unanimously is essential when States bargain in designing international regimes  .
According to Young, there are two types of bargaining. One is termed as distributive, is when negotiators will know in advance what they would gain out of a negotiation. This information reaches them through the strategic behaviour and the tactics that they would use in committing to certain issues and positions of others. One of the main points in the distributive bargaining is that the negotiators would lose in one while they gain from the other. The second type of bargaining is integrative bargaining where the negotiators bargain in the absence of fixed contract or negotiation set.  Due to the lack of information on strategies, the negotiators will try to explore the possible agreements for the mutual benefits. Climate change negotiations and its framing into a model of distributive or integrative lies on the degree of approach of the negotiators to bargain with each other. This can be done only through the level proof through science on the scale of the global warming and thereby to rest aside the uncertainties on the issue itself.
The term veil of uncertainty is the explanation of dearth of information, knowledge about the issue, or the lack of confidence in making decisions or expressing the preferences. According to Young, the veil of uncertainty give rise for the parties to agree with each other.  Most of the time, the negotiating parties in the institutional bargaining process perform under a veil of uncertainty on the future positions and interests. No Party would know what would be their future positions when negotiations are taking place. Therefore, when the Party has to choose among many rules, "it is much more difficult for a person to determine which of the several choice options confronted will, indeed, maximize whatever set of values that person desired to maximize  ." One of the reason for this behaviour is that the negotiator may be suffering from the notion of loss of interest identity. This becomes all the more prominent in climate change negotiations as the negotiators are depending on scientific evidence, which some State's do not accept as a negotiation information, therefore, individual negotiators who faces different set of choices can become uncertain about the impact of the alternate position that it can take. In addition, this level of uncertainty makes the negotiator to agree with the arrangements or the choice that can be perceived as the faire one which is broadly acceptable to the majority.
In a negotiation, the negotiators are focusing on the key issues and try to reconcile their differences on these issues rather than trying to reach an agreement on the exact areas of the regime. In this context, the negotiating text is produces to serve as a guiding tool for the negotiators and to reconcile their differences in the process. For example, as Chasek highlights one of the major characteristics of Climate Change negotiations is producing a draft text either by the chair of the working group or the COP President  . For example, after the Bali Road Map was adopted the Ad-Hoc Working Group on Longterm Cooperative Action ( AWG-LCA) was initiated and at each COP the Chair of the LCA was requested by the negotiators to produce a text highlighting the key issues of divergence and convergence. This course of action was repeated till the Copenhagen and at the Copenhagen there were texts produce by the Chairs of Working Groups each day. This course of action was aiming at narrowing down the differences and to leave the key issues of divergence for the political leadership to deliver.
States are of diverse interests and political identities. The grouping in the international negotiations, especially at the United Nations have been made on the basis of geographical regions. Therefore, states with diverse interests and identities have been composed into these groups  . It is then natural that conflict of interest arise and they tend to be inter regional or/and intra- regional. Thus the States, in a negotiation process tend to align themselves or create alliances among the similar states with similar interests, these transnational alliances are highly influential in regime creating. They hold the negotiation positions or let lose them as and when they deem fit and as and when they cater their interests. For example, the Alliance of Small Island Developing States ( AOSIS)  and the ALBA  ( Alliances of Bolivarian Republic)group of countries as well as the LDCs ( Least Developed Countries) play a critical role in climate change negotiations. Their critical role was one of the key elements in shaping the negotiations as well as reaching agreements from Bali to Copenhagen  .
According to Young, the institutional bargaining model all the time linked with gamut of issues and events happening in the socioeconomic and political environment  . These unfolding political and socioeconomic events pose different degrees of obstacles for the regime creation, and also complicating the negotiations and sometimes some parties as they struggle with domestic matters, they simply ignore the current issues. This situation can lead to reach an agreement through package deals such as that of practised in Copenhagen through the Copenhagen Accord. Or in some cases, the parties may borrow the assistance from the civil society and the NGO community to facilitate them in regime creation. For example after the failure in Copenhagen, 'the package deal' reached in Cancun at the COP 16 was generously assisted by the civil society and the NGO community at the time it was being approved by the COP plenary despite the objection by the State of Bolivia.
Institutional bargaining is simply is bargaining to create an institution and this approach focuses on the process of regime setting as a priority. Young foresee major two flaws in rationalist approach of bargaining  . On one hand the rationalists approach according to Young is overly optimisitic as it regards that actors are rationally cooperate. On the other hand, the rationalists fails to consider major obstacles that disturbs the process of reaching an agreement. Severe obstacles such as problems arising strategic behaviour, intra-party behaviour, lack of trust among the parties are not considered in the rationalist approach. In sum, the model of institutional bargaining has two folds, these are descriptive and analytical. Under the descriptive folder, it seeks to 'outline essential circumstances under which collective efforts to form regimes regularly takes place. Analytically, it lays down several factors that are critically useful for the success of those efforts  . These are as follows:
"Institutional bargaining can succeed only when the issues at stakes lend themselves to treatment in a contractarian mode.  " Under a veil of uncertainty, negotiators of a process aim at reaching agreement on the terms of a social contract in order to solve the collective-action problems. Also, in a consensus-ruled situation, it is important that the parties avoid positional deadlocks in this contractarian environment. Thus, collective-action problems which will be solved through devising institutional arrangements "vary in the degree to which they lend themselves to treatment in contractarian terms." 
"Exogenous shocks or crises increase the probability of success in efforts to negotiate the terms of governance systems  ." For example, in the case of Chernobyl, led the process of negotiation for a legal outcome in the nuclear treaty. In the case of the depletion of Ozone layer also influenced enormously the negotiations in the Montreal Protocol. In the case of climate change negotiations, the hot summer in the USA and Canada, influence the two countries to make arrangements for the Toronto Conference. However, Young informs that creeping crisis of global warming has not thus so far had an effect just as the Chernobyl crisis or Ozone hole on the negotiation process  .
Young asserts that "the availability of arrangements that all participants can accept as equitable is necessary for institutional bargaining to succeed  ." Without emphasising the achievement of allocative efficiency by utilitarian models, equal attention should be paid to equity as negotiating environment features a consensus rule. In this context, the institutional bargaining can yield success only when all the major parties and interest groups agree that their concerns have been treated fairly. For example, the importance of historical greenhouse gas emissions and the act
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