The Development Of The Global Climate Change Regime

The development of the climate change regime in the late 1980s and 1990s rode a wave of environmental activity that began in 1987 with the discovery of the ozone hole and the publication of the Brundtland Commission report, Our Common Future,10 and crested at the 1992 United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro.11 An earlier wave of international environmental activity, culminating in the 1972 Stockholm Conference and the establishment several years later of the United Nations Environment Programme (UNEP), had tended to focus on local, acute, and relatively reversible forms of pollution - for example, oil spills and dumping of hazardous wastes at sea. The more recent cycle of environmental activity in the 1990s has concerned longer-term, irreversible, global threats, such as depletion of the stratospheric ozone layer, loss of biological diversity, and greenhouse warming, and has focused not merely on environmental protection per se, but on the more general economic and social policies needed to achieve sustainable development.12

The development of the climate change regime can usefully be divided into five periods: the foundational period, during which scientific concern about global warming developed; the agenda-setting phase, from 1985 to 1988, when climate change was transformed from a scientific into a policy issue; a pre-negotiation period from 1988 to 1990, when governments became heavily involved in the process; the constitutional period from 1991 to 1995, leading to the adoption and entry into force of the UNFCCC; and a regulatory phase, focusing on the negotiation and elaboration of the Kyoto Protocol from 1996 to 2001.

The Emergence of Scientific Concern13

Although the greenhouse warming theory was put forward almost a century ago by the Swedish chemist Svante Arrhenius,14 climate change did not emerge as a political issue until the last decade. As late as 1979, efforts by the organizers of the First World Climate Conference to attract participation by policymakers proved unsuccessful, and even in 1985, when a major workshop on climate change was held in Villach, Austria, the US government officials who participated did so without specific instructions. By the late 1980s, the US Congress was holding frequent hearings on global warming; the issue was raised and discussed in the UN General Assembly; and international meetings such as the 1988 Toronto Conference, the 1989 Hague and Noordwijk Conferences, and the 1990 Second World Climate Conference attracted numerous ministers and even some heads of government.

The development of the climate change issue initially took place in the scientific arena, as understanding of the climate change problem improved. Through careful measurements at remote observatories such as Mauna Loa, Hawaii, scientists established in the early 1960s that atmospheric concentrations of CO2 (the primary greenhouse gas) were, in fact, increasing. The so-called ' ' Keeling curve,'' which shows this rise, is one of the few undisputed facts in the climate change controversy and led to the initial growth of scientific concern in the late 1960s and early 1970s. During the 1970s and 1980s, improvements in computing power allowed scientists to develop much more sophisticated computer models of the atmosphere, which, while still subject to considerable uncertainty, led to increased confidence in global warming predictions. Based on a review of these models, a 1979 report of the US National Academy of Sciences concluded that, if CO2 in the atmosphere continued to increase, "there is no reason to doubt that climate change will result and no reason to believe that these changes will be neg-ligible.''15 Moreover, in the mid-1980s, scientists recognized that emissions by humans of other trace gases such as methane and nitrous oxide also contribute to the greenhouse effect, making the problem even more serious than previously believed. Finally, careful reassessments of the historical temperature record in the 1980s indicated that global average temperature had indeed been increasing since the middle of the twentieth century.

Agenda-Setting, 1985-198816

Despite these advances, whether improved scientific knowledge would have been enough to spur political action is doubtful, particularly given the scientific uncertainties about climate change that persist even now. Although the growth of scientific knowledge was significant in laying a foundation for the development of public and political interest, three additional factors acted as the direct catalysts for governmental action. First, a small group of environmentally-oriented Western scientists - including Bert Bolin of Sweden, who would later become the first Chair of the Inter-governmental Panel on Climate Change (IPCC) - worked to promote the climate change issue on the international agenda. As major figures in the international science establishment, with close ties to the World Meteorological Organization (WMO) and UNEP, these scientists acted as "knowledge-brokers" and entrepreneurs, helping to translate and publicize the emerging scientific knowledge about the greenhouse effect through workshops and conferences, articles in non-specialist journals such as Scientific American, and personal contacts with policymakers. The 1985 and 1987 Villach meetings, the establishment of the Advisory Group on Greenhouse Gases under the joint auspices of WMO and UNEP, the report of the Enquete Commission in Germany, the testimony of climate modelers such as James Hansen of NASA before US Congressional committees in 1987 and 1988 - all of these developments helped to familiarize policymakers with climate change and to convert it from a speculative theory into a real-world possibility.

Second, as noted above, the latter half of the 1980s was a period of increased concern about global environmental issues generally - including depletion of the stratospheric ozone layer, deforestation, loss of biological diversity, pollution of the oceans, and international trade in hazardous wastes. The discovery of the so-called Antarctic ''ozone hole,'' followed by the confirmation that it resulted from emissions of chlorofluorocarbons (CFCs), dramatically demonstrated that human activities can indeed affect the global atmosphere and raised the prominence of atmospheric issues generally. Initially, public concern about global warming rode on the coat-tails of the ozone issue.

Finally, the North American heat wave and drought of the summer of 1988 gave an enormous popular boost to global warming concerns, particularly in the United States and Canada. By the end of 1988, global environmental issues were so prominent that Time magazine named endangered Earth ''Planet of the Year.'' A conference organized by the Canadian government in June 1988 called for global emissions of CO2 to be reduced by 20% by the year 2005; the development of a global framework convention to protect the atmosphere; and establishment of a world atmosphere fund financed in part by a tax on fossil fuels.17

Early International Responses, 1988-1990

The year 1988 marked a watershed, with the emergence of the climate change regime as an intergovernmental issue. During the agenda-setting stage, the distinction between governmental and non-governmental actors had been blurred. The climate change issue had been dominated essentially by non-governmental actors - primarily environmentally oriented scientists. Although some were government employees, their actions did not reflect official national positions. Moreover, the series of quasi-official meetings that they helped organize - which were influential in communicating an ostensible scientific consensus about climate change and articulating a set of initial policy responses - were non-governmental rather than intergovernmental in character.18

The period from 1988 to 1990 was transitional: Governments began to play a greater role, but non-governmental actors still had considerable influence. The IPCC reflected this ambivalence. Established by WMO and UNEP in 1988 at the instigation of governments, in part as a means of reasserting governmental control over the climate change issue, the IPCC's most influential output was its 1990 scientific assessment of global warming (IPCC 1990) - a product much more of the international scientific community than of governments. Cognizant of this fact, Brazil insisted on including a statement in the report that it reflected ''the technical assessment of experts rather than government positions'' - thus at least temporarily reading the ''I'' out of IPCC.

Among the landmarks of the pre-negotiation phase of the climate change issue were (Table 1):

• the 1988 General Assembly resolution on climate change, characterizing the climate as the ''common concern of mankind''19;

• the 1989 Hague Summit, attended by seventeen heads of state, which called for the development of a ''new institutional authority'' to preserve the earth's atmosphere and combat global warming20;

• the 1989 Noordwijk ministerial meeting, the first high-level intergovernmental meeting focusing specifically on the climate change issue21;

Table 1. Landmarks in the Emergence of the Climate Change Regime.

Conference

Date

Organizer

Conclusions and Principal Recommendations

Villach Conference

1985

WMO and UNEP

Significant climate change highly probable

Countries should begin considering the

development of a global climate

convention

Toronto Conference

1988

Canada

Global CO2 emissions should be cut by

20% by 2005

States should develop comprehensive

framework convention on the law of the

atmosphere

UN General Assembly

1988

UN

Climate change a ''common concern of

mankind''

Hague Summit

1989

Netherlands

Signatories will promote new institutional

authority to combat global warming,

involving non-unanimous decision

making

IPCC First Assessment

1990

WMO and UNEP

Global mean temperature likely to increase

Report

by ca. 0.3 °C per decade, under business-

as-usual emissions scenario

Second World Climate

1990

WMO and UNEP

Countries need to stabilize GHG emissions

Conference

Developed countries should establish

emissions targets and/or national

programs or strategies

UN General Assembly

1990

UN

Establishment of INC

UNCED Conference

1992

UNCED

UNFCCC opened for signature

COP-1

1995

UNFCCC

Berlin Mandate authorizing negotiations to

strengthen UNFCCC commitments

COP-2

1996

UNFCCC

Geneva Ministerial Declaration calling for

binding targets and timetables

COP-3

1997

UNFCCC

Kyoto Protocol

COP-4

1998

UNFCCC

Buenos Aires Plan of Action

COP-6

2000

UNFCCC

Breakdown of US-EU negotiations

COP-7

2001

UNFCCC

Marrakesh Accords

Source: Adapted from Bodansky (2001a).

• the November 1990 Second World Climate Conference (SWCC),22 which in contrast to its forerunner a decade earlier, was a major political event, held at the ministerial level.

By the end of 1990, when the Second World Climate Conference met, the three basic dynamics in the climate change negotiations had already begun to manifest themselves - dynamics that persist to this day:

• First, a split within the industrialized country group between supporters and opponents of binding, quantitative limits on greenhouse gas emissions.

• Second, a split between industrialized and developing countries over their respective responsibilities for addressing climate change.

• Finally, a split among developing countries between those worried more about climate change and those worried more about economic development.

The split among Western developed countries was the first dynamic to emerge. Western countries conducted the bulk of the scientific research on climate change, had the most active environmental constituencies and ministries and, as a result, were the first countries to become seriously concerned about the climate change problem. At the 1989 Noordwijk meeting, the divergence among them became apparent. On the one hand, most European countries, joined to some degree by Canada, Australia, and New Zealand (the so-called CANZ group), supported adopting the approach that had been used to address the acid rain and ozone depletion problems, namely, establishing quantitative limitations on national emission levels of greenhouse gases (' ' targets and timetables"). On the other hand, the United States - supported at Noordwijk by Japan and the Soviet Union - challenged this approach - the US quite adamantly, Japan and the Soviet Union less consistently - on the grounds that targets and timetables were too rigid, did not take account of differing national circumstances, and would be largely symbolic. Instead, the US argued that emphasis should be placed on further scientific research and on developing national rather than international strategies and programs.23 The differences between the US and other Western states deepened at the SWCC, with the US insisting on a recommendation that was neutral between targets and timetables on the one hand and national strategies on the other.

The SWCC also saw the emergence of a second fault-line in the climate change negotiations: the divide between developed countries (often referred to as the North'') and developing countries (the South'').24 Earlier that year, at the London Ozone Conference, developing countries had successfully pressed for the establishment of a special fund to help them implement the Montreal Protocol on Substances that Deplete the Ozone Layer, and, in the UN General Assembly, had insisted that the environmental conference scheduled to be held in Rio de Janeiro in 1992 give equal weight to environment and development. In the climate change context, they sought greater representation and argued that climate change be viewed not simply as an environmental issue but as a development issue as well. For both reasons, they sought to move the negotiations from the comparatively technical, narrow confines of the IPCC, in which they found it difficult to participate on an equal basis with industrialized countries, to the UN General Assembly. Their efforts proved successful, and the December 1990 resolution authorizing the initiation of negotiations25 placed the negotiations under the auspices of the General Assembly rather than the IPCC, UNEP, or WMO, as developed countries would have preferred.

As early as 1990, however, the split among developing countries had also become apparent. Developing countries agreed on the need for financial assistance and technology transfer, but on little else. At one extreme, the small island developing countries, fearing inundation from sea level rise, supported strong commitments to limit emissions. At the SWCC, they organized themselves into the Alliance of Small Island States (AOSIS), which played a major role in the subsequent UNFCCC negotiations in pushing for CO2 emissions reductions. At the other pole, the oil-producing countries questioned the science of climate change and argued for a ''go slow'' approach. In the middle, the big industrializing countries such as Brazil, India, and China tended to insist that measures to combat climate change not infringe on their sovereignty - in particular, their right to develop economically. They argued that, since the North was historically responsible for creating the climate change problem, the North should also be responsible for solving it. This position has prevailed among developing countries to this day, leading them to categorically reject proposals by developed countries -for many years, led by the United States - that they consider accepting emissions limitation targets.

Constitutional Phase: Negotiation and Entry into Force of the UNFCCC26

Although international environmental law has undergone impressive growth over the past 30 years,27 when the climate change issue emerged in the late 1980s, international environmental law had little to say about it.28 The only existing air pollution conventions addressed transboundary air pollution in

Europe29 and depletion of the stratospheric ozone layer.30 While customary international law articulates general principles relevant to atmospheric pollu-tion,31 these principles do not have the specificity and certainty needed to address the climate change problem effectively.32 Therefore, when calls began to be made to take international action to address climate change, the unquestioned assumption was that this would require negotiation of a new treaty.

Initially, two alternative models were considered: (1) a general framework agreement on the "law of the atmosphere,'' modeled on the 1982 UN Law of the Sea Convention, which would recognize the interdependence of atmospheric problems and address them in a comprehensive manner; and (2) a convention specifically focused on climate change, modeled on the Vienna Ozone Convention.33 Despite initial Canadian support for the former, the second approach quickly prevailed. The unwieldiness of the law of the sea negotiations compared unfavorably with the step-by-step approach used with great success in the ozone regime.34

The total time for the formal treaty-making process, from the commencement of negotiations to the entry into force of the UNFCCC, amounted to little more than 3 years, a comparatively short period for international environmental negotiations.35 The process began in December 1990, when the UN General Assembly established the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change (INC/FCCC), with the mandate to negotiate a convention containing "appropriate commitments," in time for signature in June 1992 at UNCED.36 Between February

1991 and May 1992, the INC/FCCC held five sessions. It adopted the UN-FCCC on May 9, 1992, and the Convention entered into force less than 2 years later on March 21, 1994 as a result of its ratification by 50 countries.

In understanding the INC process, four factors are critical. First, the June

1992 UNCED deadline exerted substantial pressure on governments. Given the public visibility of the UNCED process, most countries wished to have a convention ready for signature in Rio. Second, in contrast to the agendasetting and pre-negotiation phases, governments were very much in control and non-governmental actors played a quite limited role. Even the IPCC did not have a substantial effect on the actual negotiations.37 Third, although many of the principal issues in the UNFCCC negotiations were real issues with potentially substantial implications for national interests, the negotiations were often more semantic than substantive in character. Words were debated and selected as much for their political as for their legal significance. Proposed formulations took on a symbolic and even talismanic quality, only distantly connected to the actual meaning of the words. Linguistic debates became a proxy for political confrontation, with success or failure measured not just by the substantive outcomes but by the inclusion or exclusion of particular terms. Fourth, the desire for consensus decision-making gave individual countries (in particular, the United States) substantial leverage - if not a complete veto - over the final outcome.

The negotiation of the UNFCCC (and later the Kyoto Protocol and Marrakesh Accords) followed a pattern common to international environmental negotiations. At first, little progress was apparent, as countries debated procedural issues and endlessly repeated their positions rather than seeking compromise formulations. But, while frustrating to those hoping for rapid progress, this sparring process allowed countries to voice their views and concerns, to learn about and gauge the strength of other states' views, and to send up trial balloons. Real negotiations, however, began only in the final months (or even hours) before the negotiations were scheduled to conclude, when governments realized that they would need to compromise if they wished to avoid failure. Agreement was facilitated by the preparation of a compromise text by the chairperson, which cleared away many of the incrustations of alternative formulations proposed during the course of the negotiations. Even so, countries did not reach agreement until the last possible moment, following several late night sessions involving a small group of key delegations (generally referred to as the ' ' friends of the chair'').

The initial baseline for the negotiations was the ' ' framework agreement'' model used in the preceding decade to address the acid rain and ozone issues: the 1979 Convention on Long-Range Transboundary Air Pollution (LRTAP) and the 1985 Vienna Convention for the Protection of the Ozone Layer.38 Both of these conventions are largely procedural in nature. Their only obligations are very general - for example, to cooperate in scientific research and to exchange information. Rather than establishing strict obligations, their main purpose is to establish a legal and institutional framework for future work through regular meetings of the parties and the possible adoption of more substantive protocols.

Virtually all countries agreed that the UNFCCC should include, at a minimum, the basic elements of a framework convention - except for the oil-producing countries, which would have preferred not to have a convention at all. The main question was whether to include additional provisions. As a whole, the UNFCCC reflects the US preference for what might be called a ' ' framework convention plus.'' It does not contain legally binding emission targets, as the European Union and AOSIS wished. But it goes beyond previous framework conventions by establishing a financial mechanism and comparatively strong implementation machinery, including detailed reporting requirements and international review.

To a significant degree, however, the provisions of the UNFCCC did not resolve differences so much as paper them over, either through formulations that preserved the positions of all sides,39 that were deliberately ambigu-ous,40 or that deferred issues until later.41 From this perspective, the convention represented not an end point, but rather a punctuation mark in an ongoing process of negotiation that continues to this day.

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