Ihe Evolution of US Rule Models and the Negotiation of the Montreal Protocol

In 1986, the U.S. rule models, as they pertained to participation, matched the normative political context. The United States was not concerned with universal participation and was content with North-only negotiations. Specifically, the United States defined the ozone depletion problem as a global problem requiring a Northern solution. The pertinent participation rule was: If faced with a global environmental problem (in this case ozone depletion), then seek a negotiated solution with the major sources of the problem (Northern states). This position was made manifest in the resounding lack of significant mention of Southern states or their needs heading into the Montreal negotiations.

The U.S. substantive positions on ozone depletion had been evolving since the mid 1970s. The United States was one of the first nations to recognize the potential importance of the ozone depletion issue and took early unilateral action, banning CFCs in aerosols in 1977.34 The early 1980s saw a decline in concern about ozone depletion, as scientific evidence pointed to the possibility that ozone depletion was much less of a problem than at first thought. By 1984, however, the United States joined Canada and the Nordic countries (Toronto Group) in pushing (unsuccessfully) for international regulation of CFCs at the 1985 Vienna Convention negotiations.35

The U.S. drive for international regulation had origins in domestic politics—as the United States had begun regulating these chemicals, the companies that produced them would naturally look for a level international playing field. This initial domestic move, therefore, made the later transition to universal participation all the more possible. Domestic politics certainly plays a role in the evolution of states' rule models—a crucial role. At one level, discussed in greater detail below, domestic politics is the key aspect of the evaluation of rule models and therefore influences their evolution. At another level, domestic politics can lay the foundation for rule model evolution, as it is an important determinant for how international norms fit. The early U.S. regulation of CFCs made international negotiations more likely and they improved the potential fit for the universal participation norm that would emerge in the next decade.36

The sense of urgency in the United States changed radically in 1986: The ozone hole was discovered;37 Congress and environmental NGOs began pushing the United States to take significant international action through legislation and court action;38 and the U.S. chemical industry, long an opponent of CFC regulation, began to advocate international regulations, while also announcing that they could produce substitutes in the near term.39 Given these developments—especially industry's significant announcement about potential substitutes40—in November the United States authorized the State Department to negotiate an ozone protocol.41 In preparation for this first set of negotiations to move beyond the Vienna Convention, the United States also announced its substantive position: It would seek an immediate freeze on the consumption of CFCs to be followed by a gradual phaseout of the chemicals.42

Even at this early stage of forming a negotiating position, the United States characterized the ozone depletion problem as one requiring global rather than unilateral action. Closely mimicking the earlier WMO report, Benedick, the chief U.S. negotiator for the MP, claimed, "Unlike acid rain or hazardous waste, this issue needs global action."43 However, at this point, global action meant bargaining with other Northern states. U.S. officials continually talked about the need for global action in opposition to the possibility of unilateral U.S. action—a constant theme throughout all of the ozone depletion negotiations. Competitiveness was the concern. Benedick continued, "It doesn't do any good if the US cripples its own industry and the rest of the world continues unabated. Unilateral action might provide a short term-blip, but it won't solve the problem."44 U.S. government sympathy to the concerns of the chemical industry was a major factor in U.S. policy. In fact, the South was discussed at an early workshop in September 1986, and it was suggested that the South be allowed to increase CFC capacity, but a concern with this plan was the possibility that the South would start to produce CFCs for export.45 The main U.S. concern was international regulatory cooperation; a position that focused the United States squarely on bargaining with the other major producers/consumers: the EU, Japan, and the Soviet Union.

The EU's position on ozone depletion represented the largest obstacle in the way of meeting U.S. goals.46 This group of states favored a much more cautious (even delayed or nonexistent) response to ozone depletion.47 While in 1974 the United States controlled the CFC market (46 percent vs. 39 percent for the EU), after the United States banned CFCs in aerosols, the EU became the largest player. By 1986, the EU outdistanced the United States in CFC production 45 percent to 30 percent.48 In addition, the desires of industry strongly influenced EU positions (to a greater extent than the United States),49 and according to Parson industry did not lose control of the European delegations until April 1987.50 The end result was that the EU quashed any mention of binding reductions in the Vienna Convention and entered the MP negotiations advocating a CFC production cap that would actually allow the EU to increase production.51

In forging its position and goals for an eventual protocol, the United States displayed little, if any, concern for achieving the cooperation of the South. The internalized norm—the North-only operating rule—was still performing well and there was a distinct lack of alternative rules to follow. David Doniger (at the time counsel for the National Resources Defense Council [NRDC]) concluded that ozone depletion was "thought of as a North-only issue."52 Stephen Andersen recalled, "[I]n 1987, there was an expectation of the possibility of protecting the ozone without developing nations."53 According to John Negroponte's congressional testimony, the United States had three objectives for the protocol negotiations: (1) reduce risk of ozone depletion; (2) come up with a long term strategy; (3) periodic reassessment.54 What does not necessarily come through in those objectives, but is clear in the congressional record and in other places, is that the participation of the South was not even an implicit objective or desire.

In Richard Benedick's memoir/analysis of the ozone depletion negotiations the chapter titled "Forging the US Position" outlines the development and content of U.S. negotiating positions pre-Montreal and in it there is no mention of the South or of development.55 The United States was instead focused achieving the following in a protocol:

1. Certainty for industry

2. Sufficient time for switching chemicals

3. Measures to address all sources of depletion

4. Measures to allow flexible national implementation

5. Measures to regulate trade between signers and nonsigners56

The South simply was not a concern in late 1986 as the United States prepared for the first of four negotiating sessions for the ozone protocol. The United States was convinced of the need for international regulation, but the cooperation it desired was that of the other Northern states. U.S. industry and the environmental NGO community echoed the conviction on the necessity for international action, and were equally silent on the concerns of the South. The United States did not yet define ozone depletion as requiring universal participation.

The protocol negotiations took place under UNEP auspices. And in this issue, UNEP meant Tolba.57 In his capacity as executive director Tolba had a large influence over the negotiations and is often credited with catalyzing the cooperation that was eventually achieved. One commentator described him as the "most visible and dominant individual" involved in the MP negotiations.58 Though the United States and the EU dominated the discussions, Tolba shaped the substance of what they were discussing through agenda setting and informal "Friends of Tolba" meetings. According to one observer, while Tolba was the director of UNEP, participants used his executive director's statements as the agendas for the negotiations; statements that flowed from Tolba himself and the informal meetings that he convened.59 The very structure and negotiating procedures decided upon at the Vienna Convention gave Tolba significant agenda-setting power, as he had responsibility to start the process of negotiating protocols—"The Vienna Conference . . . requested that the Executive Director of UNEP create a working group to work on a protocol based on the achievements of the Ad Hoc Working Group."60

Throughout the protocol negotiations, Tolba was instrumental in two ways. In the majority of studies and commentaries on the ozone depletion negotiations Tolba is credited for his tireless work to forge cooperation between the United States and EU on binding CFC emission cuts. Tolba was an entrepreneur in more than one way, as he deserves a good deal of credit for catalyzing the cooperation that produced the groundbreaking MP.61

More importantly for the story of universal participation, however, Tolba also represented the concerns of the South—in their absence. Paul Horwitz recalls that Tolba understood that South-North issues (financial aid, technology transfer, access to CFCs) were important from the very beginning and that they would have to be addressed.62 Tolba saw the ozone issue both as global in scope and as requiring universal participation. He (and UNEP) viewed the problem differently than did the participants and worked to increase the interest and participation of Southern states while simultaneously keeping developmental issues on the agenda in their absence.63 Tolba had a different understanding of what a global response should entail.

According to Richard Benedick, the chief U.S. negotiator, at the session just prior to Montreal, "Tolba himself served, in effect, as representative of the developing world."64 Again, Tolba was the norm entrepreneur expected in the framework—he put forward a new way to conceive of the ozone depletion problem, claiming that it should be addressed through universal participation. He was a clear, vocal spokesperson for Southern concerns and participation,65 and Tolba and UNEP created a forum embedded with universal thinking, conducive to Southern participation.

Tolba's efforts and conceptualization of the problem as one requiring universal participation did not demonstrably alter the negotiations at this early stage. In 1985-86, most nations understood that ozone depletion appropriately required Northern participation. The main issue in contention was the need for, extent of, and manner of potential emission reductions—a Northern dispute.66 The United States was pushing for wide-ranging reductions on an accelerated timescale, while the EU and other major CFC producers/consumers (Japan and the Soviet Union)67 were reluctant to curb production or consumption of CFCs. Tolba's suggestion for a new understanding of appropriate participation did, however, increase the social complexity associated with ozone depletion by increasing the number of potential rules in the system. Eventually this new vision of a global response would destabilize the normative context and (through continuous suggestion and a growing critical mass of adherents) the North-only norm would disappear from both U.S. rule models and the international community as a whole.



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