Mandates for negotiators given by their governments
Usually, negotiators receive mandates from their government which determine their scope of manoeuvre during the negotiations. While these mandates often provide a handhold to negotiators, they could also create a considerable barrier, when they ‘forbid’ negotiators to make a move that is required for a breakthrough in the discussion. In such cases, negotiators can decide to move on and try to find creative solutions to bring negotiations to an end. This often requires strong personalities and considerable experience of the negotiators. After all, if the negotiation outcome for a country differs largely from the mandate negotiators had been given, there may be little chance that the national government will approve of the negotiated outcome. At the same time, if they only focus on their own mandate and insufficiently care about the extent to which the mandates of other negotiators are taken into consideration, they may win the negotiations but eventually lose the treaty, because the other countries will not ratify the outcome.
Overstepping mandates does not always have to be a problem as long as the negotiators have valid arguments to explain ‘back home’ how this happened. A reason for overstepping is often that the mandates are generally based on estimates of what negotiations may look like. At negotiations, the position of countries can change, conflicting proposals creatively combined, and new, unexpected proposals tabled. What is important in the end is that country negotiators are able to judge whether the proposed negotiation outcome package is acceptable for the governments they represent.
For example, the US negotiators at Kyoto (1997) believed that the Kyoto Protocol package with emissions trading among industrialised countries and cooperation with developing countries through a broader application of the concept of emissions trading (i.e. JI, the CDM and international emissions trading among developed countries, see Chap. 3) weighed sufficiently against the 7 % emission reduction target for the USA without corresponding commitments for key developing countries. This package largely deviated from the negotiation mandate given by the US Congress, e.g., Byrd-Hagel resolution of 1997 (see Chap. 4). This resolution instructed the US negotiators to accept nothing more than a target to stabilise emissions at 1990 levels. On the other hand, the Brazilian negotiators rightly concluded that the establishment of the CDM was in line with the Brazilian proposal to support sustainable development in developing countries through a clean development fund (Matsuo 2003). Therefore, the outcome of the CDM as a market mechanism under the Kyoto Protocol remained within the mandate of the Brazilian negotiators.