The Influence of Universal Participation Amending the Protocol

As the MP came into force on January 1, 1989, the United States was completing its shift to the universal participation rule. This new rule changed U.S. perceptions of the problem and it took on a more South-North feel. The significant bargaining shifted from EU/United States to South-North.

The EU became an issue leader on the ozone depletion issue after signing the MP. With increased scientific certainty, industry lost a great deal of influence over the European delegations, and the EU took a much greener stance, calling for accelerated cutbacks along with the United States. The EU was also concerned with universal participation, and it was initially more willing than the United States to entertain funding solutions. In addition, UNEP continued to structure the negotiations in a South-North manner. At the first meeting of the parties to the MP, Tolba laid out the work ahead and recommended that the parties undertake the total elimination of ozone depleting substances by the end of the century; the clarification of provisions to address the special needs of developing countries, including financial and technical assistance; and the articulation of a clear signal to industry concerning amended regulations.169

The international process of adjusting the MP began when Britain hosted a Saving the Ozone conference in March 1989 that was attended by 123 states.170 The United States, with its changed definition of appropriate participation levels, did not have to convince the South to partici-pate—the South was already at the table. Substantively, at London the United States, in a continuation of the position that it had held throughout the MP negotiations, announced its goal of phasing out CFCs by 2000.171 In a major position shift, the European states also advocated a phaseout of CFCs.172 The United States and the EU were further united in their desire to persuade the South to join the protocol process.173 A Swiss delegate to the London conference proclaimed, "The time has come for a universal response to a universal challenge."174

Participating in earnest in the negotiating process for the first time in large numbers, the South began pushing for developmental assistance at the London conference. As Litfin observed, "[T]he treatment of developing countries, which hitherto had been considered a minor issue, became a central concern."175 It was at this conference that the South became vocal. Daniel Arap Moi of Kenya voiced the generic Southern concern when he stated, "Some nations will not find it easy to forego the use of CFCs in their quest for industrialization."176 Representatives from India and China were more direct. India's spokesperson praised the "polluter pays principle"177 and "made known the Third World's doubts about the industrialized countries' political will to come up with the required financial aid and technology transfers for CFC technology."178 A Chinese official protested that Southern nations "resented the rich 'telling them what to do and not to do . . .'"179

At London, therefore, while it was relatively easy for the delegates to agree that an accelerated phaseout was necessary, South-North issues loomed large. For the first time, the North specifically wanted to find out what it would take to get the South on board, and they found out—development assistance. At London, the United States began to discover the ramifications of universal participation. As reported in the Boston Globe,

The problem of financing worldwide conversion away from chlorofluorocarbons and halons dominated the final hours of the meeting. China, with support from India and Mexico [the first nation to ratify the MP and an early supporter of CFC regulations], led a group of industrializing nations in proposing a separate international fund. The fund would be largely or totally financed by industrial nations . . .180

Thus confronted, the United States did not have a ready response (not entirely surprising given that the United States had ignored Southern concerns to this point). Eileen Claussen of the EPA noted that a fund would be "extremely difficult."181 The new administrator of the EPA, William Reilly, conceded that the United States had not "gotten that far" to consider "extraordinary financial aid" and argued that a fund "needed study."182 The terms of the negotiations were thus set in London for the negotiations slated to take place in May 1989. The international community reached general agreement on the need to eliminate CFCs, the need for global action, and the need to find ways to assist Southern nations.183 The drive to amend the MP had begun in earnest.

Following on the heels of the London conference, the first meeting of the parties to the MP took place in May 1989 in Helsinki. The meeting began with ambitious goals. Tolba's opening address "called for elimination of all ozone depleting substances by the end of the century and establishment of an international fund to generate, subsidize and transfer new technologies and products to the developing countries."184 At Helsinki, delegates reiter ated the weaknesses of the MP, all the delegations called for an accelerated phaseout, and there were renewed calls for nonparties to join and for developmental assistance.185 The South continued their push for development assistance, and a U.S. State Department official noted that while not ready to set up a fund, the United States would do "what is necessary."186 Though no amendments to the MP were agreed upon at this first meeting of the parties, eighty states signed a nonbinding resolution that called for a phaseout of CFCs, solidifying the understanding that CFCs needed to be eliminated.187 The work ahead was clear-cut. As Richard Smith of the U.S. State Department reported, "At Helsinki, it was clear that many developing countries want to participate but are understandably concerned about the potential costs to their economies."188 The parties organized a working group to negotiate the details of potential amendments, with the goal of presenting the amendments for signature at the second meeting of the parties in June 1990 at London. In the interim period between Helsinki and London, the United States acknowledged the need for developmental assistance, but James Baker cautioned that the United States was only ready to commit resources through existing institutions.189 Meanwhile, Congress and the environmental NGO community kept the pressure squarely on the United States.

In July 1989, the House of Representatives again proposed unilateral U.S. action to accelerate the phaseout of CFCs.190 This action garnered a typical reaction from industry, administration officials, and environmental NGOs—industry and the administration protested and the NGO community applauded.191 The other constant in the interim period between Helsinki and London was the call for development assistance for the South. The lines of the debate were clearly set heading into late spring of 1990. The United States desired a full phaseout and global participation. As Michael Shapiro of the EPA stated:

The EPA analysis [on chlorine loading projections] assumes that there will be 100% world wide participation in this effort [toward a phaseout]. It will prove optimistic unless we are able to increase participation by developing countries.192

To achieve this, a fund would have to be forthcoming and in March 1990, the Northern states tentatively agreed to subsidize Southern ozone protection efforts.193

In May 1990, as the international community was gearing up for the final push at London, the United States balked at the implications of the actions driven by its universal participation rule model. If the United States were to achieve Southern cooperation, it would have to accede to an international fund and technology transfer mechanisms—it would have to make side payments to the South. This was the bargain that the

South, now fully engaged in the negotiating process, was driving. This bargain appeared too costly to some powerful officials in the Bush administration, especially given the concurrent climate change negotiations that had recently begun (See chapter 6). Chief of Staff John Sununu and OMB Director Richard Darman orchestrated a policy that opposed the development of an international fund to aid the South in addressing ozone depletion. As reported in the Washington Post,

Sources said Sununu and Darman were adamantly opposed to the plan out of concern that it might become a precedent for demands on the US to provide far more aid to the Third World to compensate for curbs on global warming gases.194

The United States took this position in opposition to almost all states participating in the negotiations and against the will of the Senate that "voted overwhelmingly for a proposal by Senator John H. Chafee (R-RI) that called for financial assistance to the Third World to expedite worldwide phase out of CFCs."195 Ironically, this action shows just how ingrained the idea of universal participation had become in the United States. In 1990, the transition to universal participation in the global responses to environmental problems was complete. The United States viewed global environmental problems as requiring universal participation and was growing concerned with the consequences of such a definition. In the ozone depletion issue, the universal participation requirement was quickly leading to a consequence of demands for a large international fund. The United States feared that such demands would be even greater in climate change. The United States feared the impact of a generally understood requirement for universal participation for all global environmental problems—the Bush administration did not consider that climate change or ozone at this point in time could be dealt with in any other manner than through universal negotiations, and they clearly dreaded the consequences.

This fear threatened to scuttle the ozone negotiations. The South made it clear that they would not participate without a fund and the United States held on to its opposition to a new fund, advocating instead the use of the World Bank and other existing institutions.196 The controversy diffused as the United States relented after weathering a storm of criticism from Congress, Europe, the NGO community, and the Southern states. Just prior to the London meeting of the parties the United States agreed to an independent fund with the caveat that any ozone fund set up would set no precedent for other environmental issues.197

At London itself, Tolba set the tone by stating, "It is a must that north and south, east and west should cooperate together. It is not an option."198 Clearly, the participation of the South and especially India and China were foremost concerns.199 Still, though the United States had relented on approving the fund, it continued to put roadblocks in the path of an agreement by insisting that it be granted a permanent seat on the committee managing the fund.200 The South had a strong, negative reaction to this proposal and invoked accusations of environmental colonialism. Fortunately, compromise ruled the day, and by June 29, 1990, a deal or as Tolba called it, a "Grand Bargain," had been struck.

The London Amendment to the MP contained the ultimate phase-out by 2000 desired by all parties (and most nonparties), but the bigger accomplishment of the London negotiations was the establishment of the Multilateral Fund and technology transfer mechanisms. The United States and other Northern states agreed to pay the full incremental costs of the transition away from CFCs incurred by the South, and more importantly, they agreed to do this with new and additional funds administered by a new institution. This was a huge victory for the South, because the new institution was to be jointly controlled, rather than solely administered by donor states. With the funding provision in place, the South (crucially India and China) agreed to the MP and the fight against ozone depletion became a truly global affair.

In contrast to the MP, the London Amendment was enthusiastically evaluated, and in the years that followed only minor adjustments were made to the MP, and these were made with relative ease. Congress hailed the London Amendment as precedent setting even though the language in the actual text specifically rules out precedent—a line insisted upon by the United States. Congress, industry, and the NGO community were unanimous in their positive judgment of the London Amendment. Representative James Scheuer, ignoring the specific language proscribing a precedent in the London Amendment, described the London result as an "important—and if I may say it, precedent setting—agreement."201

Industry received the level playing field that it was hoping for (an early and consistent concern) as well as the potential to open up the enormous markets of India and China to CFC substitutes. Environmental groups got the accelerated phaseout they were pushing for, as well as the cooperation of the South, which they had deemed necessary. Liz Cook of the Friends of the Earth looked optimistically on the London Amendment noting that

FOE looks forward to evaluating whether the ozone fund meets the challenge of providing developing countries with environmentally sound technologies as well as serves to build cooperation between the North and the South on environmental

protection.202

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