Friendly neighbor or Trojan Horse? Assessing the ... - Springer Link

Int Environ Agreements (2009) 9:239–262 DOI 10.1007/s10784-009-9100-3 ORIGINAL PAPER

Friendly neighbor or Trojan Horse? Assessing the interaction of soft law initiatives and the UN climate regime Antto Vihma

Accepted: 4 June 2009 / Published online: 23 June 2009 Springer Science+Business Media B.V. 2009

Abstract Current global climate governance is characterized by increasing institutional proliferation. Within the last 5 years several non-legally binding initiatives have emerged, including (i) the Asia-Pacific Partnership on Clean Development and Climate and various other public–private partnerships working on the policy implementation level and (ii) the Group of Eight Gleneagles Dialogue on Climate Change, Clean Energy and Sustainable Development, and Major Economies Meeting on Energy Security and Climate Change as high-level political processes. As a first step toward analyzing the relationship between these parallel initiatives and the UN climate regime, this article looks at the negotiations of four UN-hosted climate meetings in 2007–2008, providing an examination of the interaction of ‘soft law’ climate initiatives and the ‘hard law’ UNFCCC/Kyoto Protocol process. The methodology of the study is based on participatory observations in the negotiations and document analysis of country and stakeholder positions. The analysis shows that the current multitude of processes in global climate governance entails potential institutional interaction. Deliberations of the key actors give some support to the claims of non-UN soft law being used to exert influence on the negotiations on a future climate regime within the UN context. Keywords Climate change UNFCCC Asia–Pacific Partnership Major economies meeting G8 Institutional interaction Soft law Hard law Abbreviations AOSIS Alliance of Small Island States APEC Asia–Pacific Economic Cooperation APP Asia–Pacific Partnership on Clean Development and Climate AWG-LCA Ad hoc Working Group on Long-term Cooperative Action under the Convention

A. Vihma (&) Finland Futures Research Centre, Turku School of Economics, Korkeavuorenkatu 25 A 2, 00130 Helsinki, Finland e-mail: [email protected]

123

240

AWG AWG-KP BAP BINGO CAN CBDR CDM CIF COP COP/MOP G77 G8 G8 dialogue GHG ICC IPCC KP LDCs MEM MRV NGO QELRO SBI SBSTA UN UNGA UNFCCC

A. Vihma

Ad hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (2005–2007) Ad hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (2008–present) Bali Action Plan Business and industry group Climate Action Network Common but differentiated responsibilities Clean development mechanism Climate investment funds Conference of parties (to the UNFCCC) Conference of parties serving as the meeting of parties (to the Kyoto Protocol) Group of 77 and China Group of eight, Canada, France, Germany, Italy, Japan, Russia, the United Kingdom and the United States Group of eight Gleneagles Dialogue on Climate Change, Clean Energy and Sustainable Development Greenhouse gases International Chamber of Commerce Intergovernmental Panel on Climate Change Kyoto Protocol Least developed countries Major Economies Meeting on Energy Security and Climate Change Measurable, reportable and verifiable Non-governmental organization Quantified emissions limitation and reduction objective Subsidiary body of implementation Subsidiary Body on Scientific and Technological Advice United Nations United Nations General Assembly United Nations Framework Convention on Climate Change

1 Introduction The old NGO slogan ‘‘the world is watching’’ had never been more accurate in the world of climate diplomacy than in the negotiations in 2007–2008. The public awareness and attention had been building up by the publication of various reports of the Intergovernmental Panel on Climate Change (IPCC), the Stern Review, the Oscar-winning documentary ‘‘An Inconvenient Truth,’’ and the sharing of the Nobel Peace Price with the IPCC and Al Gore. At the same time, the window of opportunity for global climate governance was closing on two fronts. First, the IPCC pointed out that global emissions had to peak before year 2020 to achieve stabilization of greenhouse gases at a concentration level below 450 parts per million.1 Second, the policy-based imperative was to agree on the continuation of UN-based climate governance beyond 2012. The climate talks were 1

For more details on this challenge see IPCC Working Group III report, Box 13.7 (IPCC 2007, p. 776).

123

Friendly neighbor or Trojan Horse?

241

expected to result in a ‘roadmap’ to guide the negotiations by the end of 2007, leading to a new agreement by the end of 2009—a schedule which would leave no gap between the first commitment period of the Kyoto Protocol (KP) and the post-2012 agreement. A few years earlier, the launch of the Asia–Pacific Partnership for Clean Development and Climate (APP) in July 2005 created remarkable political turmoil and media coverage.2 In the same period, many high-level political dialogues engaged themselves in climate governance, such as the Group of Eight Gleneagles Dialogue on Climate Change, Clean Energy and Sustainable Development (G8 Dialogue) and shortly thereafter, the Major Economies Meeting on Energy Security and Climate Change (MEM). These non-UN initiatives have some common characteristics: they are not legally binding; avoid timetables and concrete targets; have limited number of participating countries; consider climate change in the context of other concerns; emphasize technological development (Van Asselt 2007b), and they do not explicitly differentiate between developed and developing countries. They also embody common ideological features, such as reducing the role of the regulatory state into a facilitator of private-sector research, technology development, and trade relationships (see McGee and Taplin 2009). The differences between the non-UN initiatives and the UN climate regime have raised concerns on how non-binding initiatives such as the APP may influence the ‘hard law’ approach of the Kyoto Protocol (KP) and the principles of the United Nations Framework Convention on Climate Change (UNFCCC) (McGee and Taplin 2006, 2009; Ba¨ckstrand 2006; Van Asselt 2007b; Biermann et al. 2009). The backdrop of international climate deliberations has been the extensive debate on how global climate governance beyond the first commitment period of the KP should take shape. It thus seems reasonable to assume that the current multitude of governance arrangements is not simply a somewhat uncoordinated group of peacefully co-existing institutional processes—instead, these elements might be used to create overlaps and to interact with intentional synergetic or disruptive consequences (Biermann et al. 2009). The latter is the case if the institutional overlaps result from deliberative efforts of interested parties to pursue their own objectives by creating competitive arenas, and opening up opportunities for strategic behavior for those who have less interest in the problem (Young 2002, pp. 112–113). Based on these premises, the multitude of processes in global climate governance calls for analysis on the positions of relevant actors and mechanisms through which the influence could occur. This article analyzes the possible institutional interaction between the UN climate regime and the non-UN processes as it surfaces in the UN-based deliberations, focusing on two inter-related questions: • Does the possible institutional interaction of the APP, G8 Dialogue, and MEM with the UNFCCC/KP emerge in the public UNFCCC negotiations in the chosen time period (2007–2008)? • If so, what is the character of this interaction; who are the drivers, what are the actual debates where the interaction is relevant, and what are its mechanisms of potential influence?

2

Some examples of the headlines include ‘Bush Administration Unveils Alternative Climate Pact’ (Reuters, July 28 2005); ‘US Moves to Sideline Kyoto’ (The Financial Times, July 28 2005); ‘Climate Change: Sixnation pact draws enviro’s fire, as EU offers cautious praise’ (Greenwire, July 28 2005); ‘An Alternative to Kyoto’ (The Economist, July 30 2005).

123

242

A. Vihma

The assumption is that there might be observable effects of institutional interaction with the APP, G8 Dialogue, and MEM influencing the UN-based process through causal mechanisms (cf. Oberthu¨r and Gehring 2006). Four pathways of such institutional interaction—or more precisely unidirectional causal influence—have been identified by Oberthu¨r and Gehring (2006, pp. 8–9): (1) cognitive interaction through transfer of knowledge; (2) interaction through commitment, where the source institution changes interests within the target institution (3) behavioral interaction, where the source causes behavioral changes in relevant actors of the target institution; and (4) impact-level interaction which occurs in the ‘real world’, the ultimate target of the two governance processes.3 Their set of causal mechanisms provides a useful starting point for case studies and systemic thinking on the relevant actors, their motivations, and the possible synergies or conflicts institutional interactions might create.4 Institutional interaction is taking place between two institutions if one (‘source institution’) is influencing the other (‘target institution’). It is not to be confused with developments that take place in the presence of other institutional arrangements—interaction, as defined here, requires a causal pathway of influence and an observable effect (Oberthu¨r and Gehring 2006, p. 26), although proving such causalities and effects in the complexity of the real world is difficult. The challenge for proving an observable impact on the negotiation process and its output call for a thick empirical description of the negotiation process and the relevant political debates, as well as an inquiry into the institutional output of the target institution. Another key property of the causal mechanism is that it operates through two micro–macro relationships. Although both the dependent and explanatory variables are institutions on the macro level, it is ‘‘difficult to imagine that an institution could influence another institution directly without intermediate (changes of) action by relevant actors’’ (Oberthu¨r and Gehring 2006, p. 32). First, the source institution affects its member actors’ preferences or behavior. In the second stage, the actors relevant to the target institution produce an observable effect in the target institution’s decision-making process.5 In order to make a convincing argument about institutional interaction, it is thus necessary to investigate the actor positions in the relevant debates. In this article, I use the statements by countries and negotiators which include explicit and implicit references to the source institutions, as well as statements by stakeholders representing the environmental NGOs and business community, as an indicator of potential influence on the decision making of the target institution.6 The chosen methodology means 3

Another taxonomy of institutional interaction has been presented by Stokke (2001), and applied to climate governance by McGee and Taplin (2006). This set of causal mechanisms consists of ideational interplay, normative interplay, utilitarian interplay, and interplay management.

4

International institutions are created and have effects through diffusion of normative standards (as in the research tradition of constructivism) as well as changing settings of self-interested utility calculation (as studied by rational choice scholars). However, on the ground either approach can be improved ‘‘by carefully incorporating the arguments made by the other’’ (Abbot and Snidal 2000, p. 422). Actors utilize both normative and interest-based strategies to create international law, and these are normally deeply intertwined (Abbot and Snidal 2000, p. 425). Oberthu¨r and Gehring (2006) have a rationalist emphasis in their causal mechanisms, but their ‘‘cognitive interaction,’’ for example, can very well incorporate a constructivist element of identity change as well as bounded rationality learning.

5

The latter is probably more important for this study. For example, it is more convincing to argue that the creation of the APP enabled the USA to consider channelling its technology transfer activities via this route (as discussed in Sects. 3.2 and 3.3) than to argue that the APP persuaded the USA to change its preferences.

6

A limitation of this study is the use of only one indicator, as pointed out by a reviewer. Another option would be to include intangible indicators such as the number of the same people involved in different processes.

123


243

that the focus is inherently on the first two of the causal mechanisms identified by Oberthu¨r and Gehring (2006), since the observations are limited to the negotiation process and the institutional output of the target institution UNFCCC/KP. Therefore, this article does not assess the actual behavior of states or the impacts of their climate policies. The potential influence of non-UN initiatives on the UNFCCC/KP is analyzed as an example of institutional interaction between ‘soft law’ and ‘hard law’. There are reasonably well-accepted legal definitions of international hard law, its sources (treaty and custom), and the implication of the general obligation on states (pacta sunt servanda) to follow them. However, also ‘hard’ treaties may be so generally worded that they are devoid of legal content. Abbott and Snidal (2000) add to the criteria of hard law that besides the binding obligation, hard law should be precisely worded and provide for a certain amount of delegation; to an international body in the implementation of the law. Soft law is not legally binding by itself (Shelton 2000), it is not in a treaty form nor belongs to the category of customary based law, but still has some political and/or legal relevance to member states (Abbot and Snidal 2000; Skjaerseth et al. 2006). Institutional arrangements usually have both hard and soft elements (Bilder 2000), but the categories are helpful in illustrating the range of norms that constitute international legalization. This article sees the UNFCCC and the KP unequivocally belonging to the category of hard law as they are multilateral legally binding treaties. Their ‘hardness’ differs according to Abbott and Snidal’s (2000) criteria, the KP being significantly ‘harder’ due to its more precise obligations for Annex I countries and a greater degree of delegation. The KP contains obligatory targets for Annex I countries, internationally negotiated commitments in the form of quantified emissions limitation and reduction objectives (QELROs). Its performance is subject to a compliance mechanism and is assessed against targets and timetables. The UNFCCC is a more typical framework convention, but compared to the APP, G8 Dialogue, and MEM, the Convention has fairly precise features such as the reporting system (Article 12) and a carefully constructed overall objective (Article 2). This differs from the soft law institutions—for example, the APP allows the parties to choose freely what to report and how to measure it (Van Asselt 2007b). The APP and MEM both envision the international effort as an aggregation of nationally defined programs put forward by countries on a strictly voluntary basis. Institutional interaction takes place in various different contexts, and certain features of the global climate governance architecture makes this case different from most cases presented by Oberthu¨r and Gehring (2006, pp. 373–398) or Young (2002, pp. 112–138). In terms of variables used by Oberthu¨r and Gehring (2006), the target institution UNFCCC/ KP and the source institutions APP, G8 Dialogue, and MEM are all operating within the same policy field and include intentional overlaps. When Russia’s ratification finally led to the KP entering into force in early 2005, the British Prime Minister Blair saw an opportunity to use the G8 presidency to work on two fronts; enticing the United States to become re-engaged within the UN-based negotiation process on future commitments, and promoting the issue on the international and national policy agenda (Karlsson 2009). The APP was initiated in the summer of 2005, less than half a year after the entry into force of the KP, with a leading role of the USA and Australia, two countries that at that time had refused to ratify the KP. The MEM, as discussed in more detail below, was a creation of the US Bush administration in 2007 and intimately linked to the post-2012 negotiations in the UNFCCC. The source institutions can thus be seen, to various degrees, as reactions to the KP. The analysis of this article is based on participatory observation, including the author’s nearly transcript quality notes from the UNFCCC/KP sessions, side events, and press

123

244

A. Vihma

conferences. Apart from direct participatory observation work in the UNFCCC meetings, the article builds on webcasts and document archives of the UNFCCC and the United Nations General Assembly (UNGA).7 As a secondary source, a limited number of formal and informal interviews were conducted. Interviewees were granted the choice to remain anonymous, which was used by the interviewed country delegates. Section 2 presents an empirical analysis of four UN-based climate meetings in 2007– 2008, exploring on which occasions the non-UN soft law institutions were referred to and how their potential interaction could exert influence. Section 3 provides a brief analysis of the key output of the UNFCCC process, and an analytical discussion on the differences between the key country, country group and stakeholder positions, as well as differences between the types of observed institutional interaction. Section 4 draws conclusions.

2 Non-UN initiatives in the UN-based climate deliberations Four empirical cases—the Vienna Intersessional Climate Talks (27–31.8.2007), the UNGA High-Level Meeting in New York (24.9.2007), the Conference of the Parties (COP-13) to the UNFCCC in Bali, Indonesia (3–15.12.2007), and the Bonn Climate Talks (2–13.6.2008)—were chosen as they represent a year of UN-based negotiations surrounding the Bali COP-13. At the first three events, there was no clarity on how the post-2012 negotiations process was going to be structured beyond the Bali meeting, and the high-level political processes outside the UN such as the G8 and the MEM enjoyed heightened attention at the time. In the Bonn Climate Talks the practical implications of the Bali Action Plan (BAP) began to emerge. The chosen meetings also differ in nature; the UNGA event was a high-level and informal event bringing together political leaders, the Vienna meeting was driven by government officials in both informal dialogue and a formal working group, and the Bonn meeting was conducted by government officials in four formal meetings.8 The COP in Bali included both government officials and political leader segments in various informal and formal settings. Looking at the patterns of deliberations emerging from these different meetings allows us to explore the common characteristics of the key country, country group, and stakeholder argumentations. This article has a rather specific focus and does not aim at giving a comprehensive view on the state of the post-2012 negotiations during the 2007–2008 period. Instead, the observations focus on the discussions on the launch of a new round of negotiations, and setting the target for these negotiations, which are relevant to the debate on soft and hard law. Another focus is the extensive debate on technology transfer and financing, which is an area where the interactions with non-UN soft law has potential importance. A limiting factor to the observer work is naturally that in the negotiations many sessions are organized at the same time. Adding to that is the fact that in all climate talks there is a considerable amount of informal discussions where no observers are allowed. Hence, not every session of interest, whether formal or informal, can be covered. However, it can be argued that in case the non-UN initiatives do play a significant role to the debates, the rhetorics related to 7 The UNGA High-Level Event archives are available at http://www.un.org/climatechange/2007highlevel/, the Vienna Climate Talks at http://unfccc.int/meetings/intersessional/awg_4_and_dialogue_4/items/ 3999.php, the Bali COP-13 at http://unfccc.int/meetings/cop_13/items/4049.php, and the Bonn Climate Talks at http://unfccc.int/meetings/sb28/items/4328.php, retrieved 28 May 2009. 8

Formal negotiations have formal, written rules of procedure, which guides how a negotiation is conducted and how decisions are made; they involve negotiators with official credentials to represent their country.

123


245

the MEM, G8 Dialogue, and APP should also have a prominent place in the more public arenas. 2.1 The 2007 Vienna intersessional climate talks Within the UNFCCC, the shape of post-2012 climate governance is being discussed in different processes. The two main fora in 2007 were the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG) and the nonnegotiating Dialogue on Long Term Cooperative Action to Address Climate Change by Enhancing Implementation of the Convention (Dialogue).9 Both working groups were established at COP-11 in December 2005.10 Apart from the AWG and the Dialogue, future commitments and building blocks of the post-2012 agreement—mitigation, adaptation, technology, and finance—were discussed in agenda items of the Subsidiary Body of Implementation (SBI) and Subsidiary Body on Scientific and Technological Advice (SBSTA). Both of the main post 2012 UN tracks met in the Vienna Intersessional Climate Talks in August 2007 for the fourth time. The welcoming ceremony already touched upon the issue of non-UN initiatives, as the UNFCCC Executive Secretary discussed recent and upcoming meetings within and outside the UNFCCC, mentioning ‘‘positive signals from the G8 Summit’’, highlighting the parties’ commitment to the UN process, and encouraging delegates to ‘‘seize the opportunity’’ of the political momentum manifested in other fora in Vienna and Bali.11 The statements in the opening session of the AWG made it clear that one central division had remained from COP-12; the EU and the Group of 77 and China (G77) pushed for continuation of the KP approach, including numerical target ranges for developed (Annex I) country parties, references to the 2007 IPCC stabilization scenario, and precise language with respect to the target of the post-2012 agreement. In contrast, the Umbrella Group of the industrialized non-EU countries (Australia, Canada, Iceland, Japan, New Zealand, Norway, the Russian Federation, Ukraine, and the USA) emphasized in a joint statement that there still are ‘‘major gaps in our knowledge’’, while Canada added that a lot of information is available, but that ‘‘more expert input would be useful’’.12 Japan went further and stated that the AWG ‘‘does not represent the full picture of the process’’, referring explicitly to the G8 Dialogue and Japan’s forthcoming presidency of the G8, as well as to the APP and other non-UN talks and negotiations going on simultaneously.13 In the Dialogue sessions, the major focus was on identifying ‘building blocks’ for the post-2012 climate regime in a free spirit of a non-negotiating dialogue. In these talks, the EU and several of the G77 countries, such as Brazil, were of the view that the Dialogue had been rather useful, but it should be turned into a formal negotiating body in Bali. Japan, Australia, and Canada took no stand on the question of continuation of the Dialogue, but in general terms called for participation of all major emitters, flexibility, and the need to

9

In the Bali COP-13 the Dialogue ended and a new Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA) was launched.

10 Decisions Adopted by COP-11 and CMP-1, see http://unfccc.int/meetings/cop_11/items/3394.php, retrieved May 28 2009. 11

Mr Yvo de Boer, welcoming ceremony, August 21 2007, 10:00–10:30.

12

AWG-4 opening plenary, August 27 2007, 10:30–13:00.

13

Ibid.

123

246

A. Vihma

consider national circumstances in the post-2012 agreement.14 On the non-UN initiatives, The Republic of Korea (Korea) raised the APP as an example of ‘‘active involvement of the private sector and transfer of technology on practical terms’’, and proposed the informal Dialogue to be extended for 2 more years. Australia supported this proposition, adding that ‘‘effective multilateralism must be flexible’’ and praised the informal Dialogue as ‘‘an excellent vehicle’’.15 The Business and Industry Group (BINGO) emphasized in a joint statement the importance of ‘‘research and development incentives, market-oriented measures, voluntary sectoral programs, initiatives and public–private partnerships’’ and that the recent ‘‘discussions and proposals, such as the G8, APP, and the Major Economies initiatives could work with and contribute to the UNFCCC process’’.16 The USA does not formally participate in the AWG, since the country is not a party to the Kyoto Protocol. The country was fairly invisible during the Dialogue sessions as well, only making brief interventions in the opening and closing sessions. According to a common understanding, the American positions were instead brought up in the plenary hall in both the AWG and the Dialogue by Japan, Australia, and Korea.17 In the opening session, the USA presented the MEM proposal by President Bush, also mentioning the US commitment to reach a new global agreement under the UNFCCC in 2009.18 In the final session, the USA wished to ‘‘highlight that the dialogue had been useful’’ and that a new negotiation process is ‘‘an interesting idea, but there are other workforces going on as well’’.19 During the Vienna discussions, the MEM was mentioned several times in the plenary hall, but did not become a subject of much discussion within the sessions. It was, however, a major issue in several press conferences and in the conference corridors. Informally, the delegates discussed to which extent the MEM is indeed a way to infiltrate ‘‘an alternative vision of a soft regime’’ into the UNFCCC process, in which many actors have ‘‘a vision of hard targets and a mature carbon market’’.20 At a US press conference, the leader of the US delegation, Harlan Watson, outlined the objectives and emphasis of the MEM, and answered several critical questions concerning the initiative. He clarified that the process includes ‘‘some agenda items that are overlapping with Bali’’, but reconfirmed that it all contributes to the UNFCCC process that has ‘‘many inputs both from inside and outside of the Convention’’.21 When confronted with the differences of opinion between the USA and the EU, the latter asking for binding targets, and the potential US lack of credibility to lead the MEM, the US delegation replied ‘‘we are in so many activities together, the G8 Dialogue, bilateral and multilateral technology initiatives, all G8 activities, so again, I think there are more areas of agreement than disagreement’’.22 The US delegation was also of the view that the non-existing official differentiation in the MEM is an opportunity rather than a threat to developing countries. The USA expressed the concern that the developing countries are involved in ‘‘many many activities, which quite frankly are not 14

Dialogue 4, 1st meeting, August 27 2007, 15:00–18:00.

15

Ibid.

16

Dialogue 4, 2nd meeting, August 28 2007, 10:00–13:00.

17

Interview, EU delegate (anonymous), August 27 2007.

18

Earth Negotiations Bulletin, Vol. 12 No. 335, p. 2.

19

Dialogue 4, final meeting, August 29 2007, 10:00–13:00.

20

Earth Negotiations Bulletin, Vol. 12 No. 335, p. 2.

21

The Delegation of the USA Press Briefing, August 29 2007, 13:30–14:00.

22

Ibid.

123


247

recognized by [the UNFCCC] process’’ and that the MEM is ‘‘a very good opportunity for the emerging economies’’ to get recognition for the mitigation efforts already taking place.23 The environmental NGOs participating in the Vienna meeting were univocally critical toward the MEM. Civil society representatives emphasized that especially the yearly COPs of the UNFCCC process are under great scrutiny from media and civil society, whereas the non-UN meetings take place behind closed doors, and consequently, the country positions are less visible in the public sphere.24 This argumentation was brought up in Vienna on several occasions by the Climate Action Network (CAN), the coalition of major environmental organizations following the UNFCCC process. On the final day of the meeting, a representative of CAN formulated the standpoint: [Ranges] pushed by Canada, New Zealand, Japan, Switzerland, Russia are a disaster […] they proposed to open the AWG draft text up and cut out the ranges […] that is also why we are keen on the UN negotiations, is that when you are in formal negotiations, that stuff comes out. That is not happening in informal negotiations or [the MEM] in Washington. In UN negotiations each country must show a flag.25 In the concluding press conference, a CAN campaigner summarized that several of the Umbrella Group countries were trying to ‘‘delay or block progress in setting targets’’ and that it is possible that the same attitudes will be carried out in later negotiations as well, but remained hopeful because ‘‘Bali is under greater scrutiny’’.26 2.2 The UN General Assembly high-level meeting in New York In September 2007, UN Secretary-General Ban Ki-moon convened a 1-day high-level event in New York, entitled ‘The Future in our Hands: Addressing the Leadership Challenge of Climate Change’. The objective was to gather political will for the upcoming negotiations—in other words to strengthen the mandates of the negotiators the governments would send to the Bali Conference. The shape of the event was constructed to advance the parties toward an agreement, without engaging the politicians in actual negotiations, resembling more the ad hoc types of soft climate governance platforms, but within the UN umbrella. Most of the countries made cautious statements rather than significant new proposals during the meeting. Concerning the role of non-UN initiatives, patterns from Vienna re-emerged. Japan, and to some extent also Australia, emphasized participation of all major emitters, flexibility and economic growth.27 Japan also noted that ‘‘the discussions in fora such as the [MEM] hosted by the USA, the [APP], and the East Asia Summit will also contribute to achieving consensus under the UNFCCC’’.28 Canada elaborated that the UNFCCC was ‘‘building on the dynamic created by the G8 and Asia-Pacific Economic Cooperation (APEC) summits’’.29 China cautiously welcomed ‘‘practical cooperation’’ 23

Ibid.

24

Interview, Mr Patrick Finnegan, NGO climate campaigner, December 9 2007.

25

CAN Press Briefing, August 31 2007, 13:45–14:15.

26

CAN Press Briefing, August 31 2007, 20:30–21:00.

27

Mr Yoshiro Mori, Special Envoy of the Prime Minister of Japan, September 24 2007, 15:00–17:00.

28

Ibid.

29

Mr Stephen Harper, Prime Minister of Canada, September 24 2007, 10:00–13:00.

123

248

A. Vihma

under other initiatives and mechanisms, which ‘‘should serve as supplements to the framework of the Convention’’.30 Also the EU politely welcomed ‘‘all ongoing initiatives, at different levels’’ on the condition that it ‘‘remains clear that the UN is the appropriate forum for negotiating future global action’’.31 In another statement, the EU also expressed that it is fully committed to expanding its own strategic partnerships and bilateral activities ‘‘to complement the UN climate framework’’.32 The G77 intervention highlighted the principle of common but differentiated responsibility, and included a call for ‘‘the central role of the UN to be maintained’’. This statement did not mention any kind of ‘‘welcoming’’ of other processes, and made it clear that the forum for negotiations should be the UNFCCC: It is important to emphasize that any special events, or initiatives, whether individual, national, regional or multilateral should complement the ongoing negotiations under the UNFCCC, which serves as the multilaterally agreed structure within which the international community agreed to address the challenges of climate change.33 The USA began its statement by emphasizing that it is firmly committed to the UNFCCC, and that the first Major Economies Meeting taking place later in the week should be seen as supporting the UN discussions.34 Second, the USA emphasized the need of an integrated response to climate change, which ‘‘has been agreed at both G8 and APEC meetings’’, according to Secretary Condoleezza Rice. This integrated response deals with environmental stewardship, but also with energy security, economic growth, and development.35 The business community did not make public statements or host press conferences, but was represented only with a brief and general intervention in the technology session. CAN remained fiercely critical toward the MEM as well as other non-UN approaches. In the NGO press conference, a campaigner concluded that the UN High Level Meeting ‘‘contrasts starkly’’ to the MEM in Washington. The Major Economies Meeting was interpreted as ‘‘an attempt to derail this process […], the international community must not be held back by USA, Canada, Australia and Japan’’.36 2.3 The Bali climate meeting The most important climate meeting in 2007, the 13th session of the Conference of Parties of the UNFCCC, was held in Bali in December. Also taking place and very much linked to the COP was the Meeting of Parties (COP/MOP) of the KP, as well as meetings of the subsidiary bodies of the UNFCCC and the AWG under the KP. There was a general 30 Mr Yang Jiechi, Minister of Foreign Affairs of the People’s Republic of China, September 24 2007, 15:00–17:00. 31 Mr Jose´ So´crates, Prime Minister of Portugal, on behalf of the European Union, September 24 2007, 10:00–13:00. 32 Mr Toomas Henrik Ilves, President of Estonia, on behalf of the European Union, September 24 2007, 10:00–13:00. 33 Mr Mukhdoom Syed Faisal Saleh Hayat, Minister for Environment and Special Envoy of the President of Pakistan, on behalf of the Group of 77 and China, September 24 2007, 15:00–17:00. 34

Ms Condoleezza Rice, United States Secretary of State, September 24 2007.

35

Ibid.

36

Mr Sze Ping, Greenpeace China, NGO Press Conference, September 24 2007.

123


249

expectation that the meeting would launch a ‘‘Bali roadmap’’ to guide the next 2 years of negotiations.37 The future of the Dialogue process quickly emerged as the most difficult and important issue of the Bali meeting. In short, the aim was to reach an agreement on how to negotiate—the major issues being the level of formality of the future process, the shared overall goal, the relationship with the AWG and the timeline for the next 2 years of negotiations. In the final stretch of the negotiations, most of the other meetings, including the AWG and the contact group on technology transfer, were close to a solution but the agreement could not be sealed because the result depended on the outcomes with respect to the Dialogue. The UNFCCC Executive Secretary noted that this web of interlinkages was creating an ‘‘all-or-nothing situation’’, and that ‘‘the whole house of cards falls to pieces’’ if the Dialogue work on long-termaction was not completed.38 The beginning of the Bali COP saw the issue of technology transfer gaining heightened attention, as it was moved to the SBI from the SBSTA, where it had long been housed. The move signaled a united intention from the developing countries—particularly China and India—to elevate commitments of the developed countries in this area. Japan quickly became subjected to criticism39 from the NGOs in Bali due to its proposal for the post-2012 mitigation activities to include a ‘‘sectoral approach on [a] bottom-up basis, the market-based approach and […] public–private partnership’’—but no binding commitments or numerical targets.40 Japan also stated at the first COP plenary that ‘‘it is essential to move beyond the Kyoto Protocol to a new framework’’.41 In contrast, within the Dialogue contact group, Japan assured that it had ‘‘no intention to scrap the Kyoto Protocol’’, and emphasized that it had supported the launching of formal negotiations in the form of a new ad hoc working group.42 Canada gave support to this statement, ‘‘appreciating the concrete suggestions by Japan’’, adding also that it would be willing to discuss numerical targets ‘‘in smaller groups’’.43 The US delegation agreed that the Bali road map should guide a negotiation process, stating that ‘‘we do use the n-word’’.44 Furthermore, the US intervention emphasized that ‘‘informal consultations, and operations outside the Convention such as the G8 and MEM are needed’’.45 In the press conferences, the US delegation was confronted by many questions on the nature of the MEM and its relation to the Bali meeting. Although the MEM was scheduled to end in late 2008, the US government was seemingly giving it features, such as a role in initiating new funds under the World Bank, which seem to indicate that it could be aiming for the MEM to become something more permanent.46 The leader of the US delegation repeated that the USA was ‘‘not trying to detract from the UN process’’ and that the 37

Mr Yvo de Boer, Welcome Message, see http://unfccc.int/meetings/cop_13/welcome_message/items/ 4209.php, retrieved May 28 2009. 38

UNFCCC Press Briefing, December 13 2007, 12:30–13:00.

39

ECO Newsletter by Climate Action Network, Issue 2, Vol. CXIII.

40

COP plenary, December 3 2007, 10:00–13:00.

41

Ibid.

42

Contact group on long-term cooperative action, December 5 2007, 15:00–16:30.

43

Ibid.

44

Contact group on long-term cooperative action, December 5 2007, 15:00–16:30.

45

Ibid.

46

White House News, ‘Fact Sheet: Major Economies Meeting on Energy Security and Climate Change’, see http://georgewbush-whitehouse.archives.gov/news/releases/2007/09/20070927.html, retrieved May 28 2009.

123

250

A. Vihma

purpose of the MEM was to ‘‘accelerate progress within the Convention’’.47 More interestingly, however, the US delegation defined that the numerical range of emission cuts for 2020, a question that had been powerfully pushed by the EU already in Vienna would be addressed by the USA only after the MEM would be completed; ‘‘sometime next year we will have some specific numbers coming out of [the MEM] process’’. Both the MEM and the UNFCCC were clearly interested in setting global mid- and long-term targets: We are, of course, very keen as part of the Major Economies Process, to the extent we can, to get a consensus on what the long-termglobal goal might be, […] and bring it back to the Convention, but once again, this is only to help the process.48 Later on in the Bali negotiations, the USA presented a new roadmap proposal at a smallscale ministerial meeting. This intensified the ministerial level negotiations, and gained attention from the NGOs, who called it ‘‘provocative,’’ ‘‘wrecking tactics,’’ and ‘‘a shameless effort attempting to wreck the talks’’.49 The content of the proposal was based on a non-binding bottom-up framework, and according to The Guardian, consisted of a ‘‘voluntary agreement where countries set their own targets and timetables for reductions’’.50 Also a Business Group statement highlighted the need for market-based approaches, flexibility and voluntary measures, noting that ‘‘many business driven initiatives, including sectoral ones, have already demonstrated real progress in reducing greenhouse gases, improving energy efficiency and contributing to the development of technologies’’.51 The business community, most vocally represented in the UNFCCC meetings by the International Chamber of Commerce (ICC), advocates transparency in decision making, voluntary sector-based approaches, and private-sector participation in climate governance. The APP often serves as a positive example, as seen in Bali: ‘‘The APP […] demonstrates the potential and tangible accomplishments that properly designed, credible, voluntary, sectoral approaches can offer’’.52 In Bali, the ICC published a discussion paper on sectoral approaches, which criticized the Convention on the ‘‘lack of [public–private] interaction’’ while within ‘‘other international forums such as the APP activities have been organized around sectoral approaches with procedures established for voluntary government and private sector participation’’.53 The US initiative was immediately rejected by many governments in the meeting, as well as outside of it. The EU gave a public threat to boycott the MEM, if there would be no outcome from Bali.54 The EU position, expressed by key European ministers, referred to it as ‘‘pointless’’ or ‘‘meaningless’’ to attend the MEM if there was no ‘‘substantial progress’’ in Bali.55 The NGOs welcomed the EU’s move away from its traditional mediator role and 47

Dr Harlan Watson, Delegation of the United States Press Briefing, December 6 2007, 14:00–14:30.

48

Ibid.

49

ECO Newsletter by Climate Action Network, Issue 11, Vol. CXIII; Third World Network, Bali Update 16; The Guardian, ‘US Proposal threatens Climate Change Deal’, December 14 2007. 50

The Guardian, ‘US Proposal threatens Climate Change Deal’, December 14 2007.

51

COP plenary, December 14 2007.

52

Sectoral Approaches: An International Chamber of Commerce Issue Discussion Paper, December 8 2007. See http://www.iccwbo.org/uploadedFiles/ICC/policy/environment/pages/Sector_Approaches.pdf, retrieved 28 May 2009. 53

Ibid.

54

BBC, ‘EU ‘snub’ threat at climate talks’, December 14 2007; The Guardian, ‘US proposal threatens climate change deal’, December 14 2007. 55

Ibid.

123


251

described the MEM as ‘‘an attempt to sabotage the UNFCCC process’’.56 The G77 gave a ‘‘warning against the erosion of the Convention or the Kyoto Protocol’’ or the replacement of these by ‘‘a less equitable instrument’’.57 It was not clear, however, whether the statement referred to outside processes or the erosion of existing principles of the UNFCCC, or both. The USA repeatedly stated that it will ‘‘not be alone in having problems with defining numbers up front’’.58 In the high level part of the negotiations, the head of the US delegation also highlighted that ‘‘many countries’’ had registered the point of view that they ‘‘do not want to have pre-judgments made here’’.59 Although the US position was clearly sympathized by, for example, Canada, Japan, and Russia, the numerical targets made it into the AWG conclusions where these resisting countries are parties and the USA only an observer. The inclusion of targets in the AWG conclusions but not in the BAP reflects the relative power and determination of the USA, as well as the decisive role of the COP Dialogue process decision compared to the less important AWG conclusions. 2.4 Bonn climate change talks The post-BAP negotiations in 2008 were launched in Bangkok when the AWG-KP— before known as the AWG—and the new Ad Hoc Working Group on Long-term Cooperative Action under the Convention (AWG-LCA) conducted a 1-week meeting in Bangkok (31.3.-4.4.). The main focus in this meeting was developing the work programme of the AWG-LCA, and deliberating on means for Annex I parties to reach their emission reductions in the AWG-KP in-session workshop.60 In the Bonn Climate Talks, the two AWGs convened again for 2 negotiation weeks, joined by the SBI and SBSTA for their 28th meetings. A new emerging discussion involving soft law institutions was the role of the new climate funds of the World Bank, to which the MEM and G8 more or less directly contributed.61 These new Climate Investment Funds (CIFs) include a Clean Technology Fund for large scale technology investments in developing countries and a Strategic Climate Fund for more flexible purposes. On the first day, a roundtable on means to reach emission reduction targets was conducted under the AWG-KP. New Zealand, the EU, Canada, Japan, and Switzerland all advocated a more or less broad consideration of sectoral approaches for ‘advanced’ developing countries. On several occasions later in the Bonn meeting, Canada and Japan credited the roundtable discussion with highlighting the importance of sectoral approaches, which was seen ‘‘fruitful since the new framework has to be flexible’’.62 A continuous debate that emerged in Bonn was a North–South argument over whether deliberating on sectoral approaches suits the mandate of several different AWG-LCA items. The G77 56

ECO Newsletter by Climate Action Network, Issue 11, Vol. CXIII, p. 1.

57

Earth Negotiations Bulletin, Vol. 12 No. 354, p. 14; Third World Network, Bali Update 13, p. 2.

58

Dr Harlan Watson, US Delegation press briefing, December 10 2007, 14:00–14:30.

59

Dr Paula Dobriansky, US Delegation press briefing, December 12 2007, 12:30–13:00.

60

Earth Negotiations Bulletin, Vol. 12 No. 364.

61

At the Gleneagles Summit of 2005, the G8 asked the World Bank to develop an investment framework for clean energy, and in 2006 the G8’s Development Committee asked the World Bank to explore potential new climate instruments. At the launch of the MEM in September 2007, however, President Bush presented the CIF as his initiative. In June 2008, the CIF was launched in the Leader Statement of the G8 Hokkaido Summit, an event which also included a MEM meeting. 62

AWG-KP, June 3 2008, 10:00–13:00.

123

252

A. Vihma

wished to discuss sectors only in the context of technology transfer, while Northern countries, most vocally Japan and the USA, defended the sectoral approach in a wide range of mitigation-related discussions. India and Philippines blamed the Annex I countries for ‘‘distortion of the BAP [paragraph] 1 (b) (iv) that puts emphasis on sectoral approaches’’.63 The North–South bargaining continued to sharpen in the AWG-LCA workshops conducted in the first week, as the G77 countries pushed for concrete actions on the issue of technology transfer which is ‘‘requested by […] Article 4.5 and the BAP’’ and in which ‘‘little has happened since 1994’’, as stated by China.64 Brazil, China, and Ghana suggested enhancing the technology transfer mechanism by establishing a Multilateral Technology Acquisition Fund and a new Subsidiary Body of Technology Transfer to function under the UNFCCC. Brazil also emphasized the potential role for regional technology centers and India called for sharing of the intellectual property rights.65 Japan responded by stating that they thought the idea of a technology fund under the UNFCCC was ‘‘already gone, we had not heard that for a long time’’, and alongside with the USA and Australia, emphasized on the importance of private-sector investment, enabling environments, reducing trade barriers and ‘‘building on existing frameworks’’.66 Japan highlighted that it is ‘‘essential to see the outside processes such as the APP, Cool Earth Partnership and the Clean Technology Investment Fund of the World Bank by Japan, the US and the UK’’.67 Also the USA noted that the ‘‘processes outside the convention such as the CIF contribute directly to this issue’’. Canada highlighted less explicitly ‘‘the need to take into account other relevant multilateral institutions’’ and that ‘‘much of technology transfer happens outside this process on day to day basis’’.68 Similar deliberations continued in the AWG-LCA workshop on investment and financial flows. The Alliance of Small Island States (AOSIS) expressed concern over that: ‘‘we are hearing of many bilateral and other [non-UN] initiatives which do not build confidence’’.69 China and India outlined that ‘‘any funding pledged outside the UNFCCC shall not be regarded as fulfillment on commitments under article 4.3 of the Convention’’, with China mentioning the new World Bank funds as an example. According to the leading G77 countries, the post-2012 financing should be fully accountable to the COP, have equitable representation in governance, 8?0. and allow ‘‘easy access’’. Japan responded by asking the Southern countries to be more specific about ‘‘the relation to ongoing institutions outside the UNFCCC’’, and even blamed China for ‘‘wanting to turn the UNFCCC into an aid agency’’. As the debate intensified the US intervention even stated that ‘‘the US is fully meeting its financial obligations under the Convention’’ and that the World Bank multilateral fund is ‘‘not motivated by any unmet obligation’’.70 In the Umbrella Group’s view, the private sector would provide most of the needed investment—the critical importance is to facilitate research and development, as well as enabling environments through open markets, legal frameworks and protected intellectual property rights.

63

AWG-LCA, June 6, 10:00–13:00.

64

AWG-LCA workshop on technology transfer, June 3 2008, 15:00–18:00.

65

Ibid.

66

Ibid.

67

Ibid.

68

Ibid.

69

AWG-LCA workshop on investment and finance flows, June 5 2008, 10:00–13:00.

70

Ibid.

123


253

Later in the LCA meetings, Japan repeated that the workshops were a valuable exercise that ‘‘had emphasized sector-based approaches and public–private partnerships’’ and that the new World Bank funds are ‘‘important and complementary’’.71 The same kind of deliberation continued by developed country parties, with Korea stating that a ‘‘black and white dichotomy is not good for developing countries’’, as bilateral and multilateral actions outside the Convention should also be accounted for in the UNFCCC process.72 The USA highlighted Article 11.5 of the Convention which allows Annex I to provide financial resources ‘‘related to the implementation of the Convention through bilateral, regional and other multilateral channels’’.73 Overall, the AWG-LCA workshop deliberations were the most open and interesting part of the Bonn meeting, as the formal negotiating groups achieved very limited results.74

3 Assessing the institutional interaction This section first provides a short note on the extent to which a soft law approach can be discerned in the Bali Action Plan, the key output of the 2007 negotiations. It then summarizes the actor positions, and paves the way to analyze the different types of mechanisms of influence and the potential institutional interaction. 3.1 The Bali action plan The most significant output of the UN-based climate negotiation in 2007 was the Bali Action Plan, a framework to guide the following 2-year negotiations period (United Nations Framework Convention on Climate Change 2007). This document, which provides a possible structure for a post-2012 climate agreement, does not explicitly refer to any nonUN soft law institutions. However, the document includes traces of soft law influence—the BAP can be read as a clear departure from the KP types of binding, precise and enforceable commitments (Rajamani 2008, p. 917). As shown below, paragraph 1,— the final element agreed in Bali— represents a softer approach as compared to the KP. Paragraph 1 of the BAP is a very careful construction. It launches a process ‘‘in order to reach an agreed outcome and adopt a decision at its fifteenth session’’ (United Nations Framework Convention on Climate Change 2007, para. 1). The chosen words ‘agreed outcome’ clearly illustrate a lack of consensus on the legal form that the outcome of the new process should take. Here, the BAP differs explicitly form the Berlin Mandate that guided the KP negotiations, which specified that the goal was to reach ‘‘a Protocol or another legal instrument’’ (United Nations Framework Convention on Climate Change 1995, para. 3). There are numerous possible legal avenues for an outcome or outcomes under the BAP (Bodansky 2009). Also, the BAP contains no reference to simultaneous work of the AWG-KP, and only a very vague reference to the KP—the new process is ‘‘informed’’ by the experience with the implementation of the KP. ‘Sectoral approaches’ also appear in paragraph 1 b (iv), in the context of technology transfer with a reference to the Article 4.1 (c) of the Convention. 71

AWG-LCA, June 6, 10:00–13:00.

72

Ibid.

73

Full text of the Convention see http://unfccc.int/essential_background/convention/background/items/ 1349.php, retrieved May 28 2009. 74

For a summary of the results, see Earth Negotiations Bulletin, Vol. 12 No. 375, pp. 17–18.

123

254

A. Vihma

The IPCC ranges of emission reductions required for 450 ppm stabilization were also left out of the final version of the BAP. It only states that the objective is to reach a ‘‘shared vision for long-termcooperative action, including a long term global goal for emission reductions’’, and includes a footnote recognizing certain pages of the IPCC 4th Assessment Report in the preamble. The USA did not want a decision in Bali that would ‘‘prejudge’’ or ‘‘predetermine’’ the outcome of a 2-year-negotiation process that lies ahead, and the US position resulted in a BAP without numerical targets (Cle´mencon 2008, pp. 74–75). Paragraph 1 b (i) of the BAP states that the developed country parties are subjected to ‘‘measurable, reportable and verifiable (MRV) nationally appropriate mitigation commitments or actions […] while ensuring comparability of efforts among them, taking into account differences in their national circumstances’’. Rajamani (2008, pp. 928–929) points out that in the KP the developed countries have commitments which are not only MRV but also enforceable, subject to compliance procedures. Furthermore, the phrase ‘commitments or actions’ leaves the question of quantified emission’s limitations, and reduction objectives somewhat open. The Berlin Mandate only mentioned strengthening of commitments for the Annex I, and called for Annex I parties ‘‘both to elaborate on policies and measures as well as to set QELROs within specified time frames’’ (United Nations Framework Convention on Climate Change 1995, para. 2(a)). In a loose interpretation of the BAP, QELROs are just one of the possible means that could be used. Another departure from the KP is the comparability of efforts—not policy results such as emission reductions—suggesting significant latitude for differentiation. Measuring and comparing national efforts is a rather difficult task and makes the mandate even more open ended. The developing country parties are subject to ‘‘nationally appropriate mitigation actions in the context of sustainable development, supported and enabled by technology, financing and capacity building, in a measurable, reportable and verifiable manner’’. The MRV in the paragraph 1 b (i) and the paragraph 1 b (ii) render to different interpretations on the nature of the MRV, such as whether MRV is subject to national or international MRV procedures. The post-Bali MRV debate focuses on whether the MRV procedures need to contain an outside review by an expert team, whether reporting must follow international guidelines, and whether the requirements allow comparability and transparency, and provide a real basis for verification (Breidenich and Bodansky 2009).

3.2 Country, country group and stakeholder positions in the negotiations As seen in the previous section, the BAP is open for a soft law-influenced outcome. Section 2 illustrated how in all four UN-based meetings the USA, Japan and Canada, sometimes joined by other Umbrella Group countries, showed an explicit preference toward voluntary targets and bottom-up sectoral implementation, and that these preferences went hand-in-hand with argumentation that highlighted the important role of non-UN processes with features of soft law: non-binding commitments, undefined targets, national review procedures, informal negotiation arenas, and limited participants. This correspondence gives an indication that the proponents of softer approaches to climate governance are strategically using the soft law institutions in certain debates. They serve as positive examples, but also as alternative ways to implement climate policies, affecting the debates on the interpretation of the UNFCCC commitments. An interesting aspect arises from the content of references. All explicit references made in the UN-based talks on the soft law institutions had positive connotations, perhaps with the exception of the EU’s commentary on the MEM at the Bali COP. The APP was most

123


255

Table 1 References to the non-UN soft law institutions in the UN-based climate change meetings

Countries which made references

APP

G8 Dialogue

MEM

Japan, Canada, the USA, Korea, Australia

Japan, Canada, the USA

the USA, Japan

Typical content APP as a flagship of G8 as a contributor to common MEM as a contributing forum for achieving results in the of references sectoral approach understanding on the urgency UNFCCC of CC

visible as a positive example of a ‘sectoral approach’, which was proposed in 2007 by Umbrella Group countries, especially Japan, but was not clearly defined. The APP also featured in the technology transfer discussions. The G8 Dialogue was mentioned as an example of creating ‘momentum’ for the Bali COP-13 and providing input into the Convention in general. The newcomer MEM was presented as a contributor to achieving consensus in the UNFCCC. However, the countries listed in Table 1 were careful not to argue that the non-UN soft law arrangements would be more effective, superior institutional arrangements to the UNFCCC/KP. On the contrary, the soft law institutions’ claim to legitimacy is intimately linked to the UNFCCC process, since they require the involvement of Southern countries, such as China and India, which highlighted the central role of the UNFCCC across all meetings. Consequently, the Umbrella Group countries made a notable effort to emphasize that the parallel processes were meant to complement, and not to compete with the UNFCCC/KP. Across all meetings, but especially at COP-13, the proponents of the soft law institutions argued that the MEM is a way to accelerate progress under the UNFCCC and that the non-UN partnerships such as the APP are a means of implementing the objectives of the Convention. This differs from some previous public statements made at the launch of the APP in 2005 by the USA and Australia. Former Australian Prime Minister John Howard indicated on several occasions that the APP is ‘‘significantly better than the Kyoto Protocol on reducing greenhouse gas emissions’’ (see also Lawrence 2009).75 The EU remained implicitly suspicious of the non-UN-based soft law processes MEM76 and APP, and did not refer to the G8 Dialogue either, although it was originated by the UK. On a general level the EU did ‘‘welcome all ongoing initiatives, at different levels’’ in the UNGA meeting. Officially, the EU is a strong supporter of the UNFCCC and the KP, and had earlier adopted a ‘‘wait and see’’ approach toward the APP, neither rejecting nor endorsing it (Van Asselt 2007b, p. 21). A plausible explanation is that the EU hoped that the soft law approaches, especially the G8 Dialogue, would ‘‘somehow pave the way for a post-2012 regime’’ by getting the USA more involved in global climate governance (Afionis 2008, p. 4). When the UNFCCC negotiations seemed to get stuck at Bali, the EU publicly threatened to dismiss the MEM. The major G77 countries, including China and India, do not wish to alter the principles of the UNFCCC, but have not publicly indicated that the APP, G8 Dialogue, or MEM 75 See for example ‘Climate change deal better than Kyoto: Howard’, ABC news online, see http://www.abc.net.au/news/newsitems/200507/s1425101.htm, retrieved May 28 2009. 76 An anonymous European representative in the first MEM called the meeting a ‘‘game’’ played by the Bush administration to slow down the momentum toward a post-2012 agreement (The New York Times, ‘Bush Outlines Proposal on Climate Change’, September 28 2007). Another anonymous commentary from the EU referred to MEM as ‘‘a cynical exercise in destabilising the UN process’’ (The Independent, ‘Bush prepares for ‘greenwashing’ climate summit’, September 27 2007).

123

256

A. Vihma

would directly threaten these principles either. India and China participated in the MEM, APP, and G8 Dialogue, but at the same time highlighted in all the four meetings that the UNFCCC should be the undisputed multilateral forum. As non-Annex I countries, they have no interest in dismissing the KP and its mechanisms, or the favorable principles of the Convention, and they also stand to gain from the comprehensive multilateral approach of the UNFCCC that includes climate change impacts and adaptation. On the other hand, although the non-UN soft law arrangements lack explicit differentiation between the developed and the developing countries, it is quite evident that the developing country parties are on the receiving end of projects in the APP and the new World Bank funds— which are connected to the MEM and/or the G8 process, as discussed below. There is thus a possible material explanation for these G77 countries participating in these processes, but in the meantime emphasizing the commitment to the UN and Kyoto framework. From a Southern perspective, it is also worthwhile to note that the non-UN soft law institutions APP, G8 Dialogue, and MEM have very little, if any, representation from the leastdeveloped countries (LDCs), 49 countries comprising the majority of the G77, or from the alliance of small island states (AOSIS). In the UN process, these subgroups often make independent statements, and the particular situation of LDCs is recognized by the UNFCCC (Article 4.9; Article 12.5). The LDCs and AOSIS77 positions differ from the official G77 position in many ways.78 These subgroups prefer the ‘hard’ multilateralism of the UNFCCC/KP, in which they have a full membership and which may, as a hard law institution, give better opportunities for the weaker parties’ participation (Abbot and Snidal 2000). Neither the LDCs nor AOSIS, however, have taken official positions toward the APP, G8 Dialogue or MEM processes. Throughout the meetings, the most vocal critics of the non-UN soft law institutions were the environmental NGOs. The Climate Action Network regarded especially the APP and MEM as attempts to ‘undermine’ the Kyoto Protocol and ‘derail’ the UNFCCC process, and considered the G8 Dialogue as a controversial process as well. Effectiveness was one of the most important reasons emerging from the NGO deliberations in the UNbased meetings analyzed. The KP hard law approach in the form of precise and legally binding targets is considered essential for effective climate governance. Especially its component of precision is a particularly valuable characteristic for civil society activists, as formulated by a campaigner: Under a legally binding [treaty] you know where you are, and that is one of the reasons the NGOs and a good few countries are fighting for a second commitment period [for the KP].79 An important technique for NGO campaigning is to expose the differences between domestic policy behavior and international commitments (Abbot and Snidal 2000; Dai 2007). The ideas of certainty and observability of the effects associated with hard law institutions gives support to such NGO viewpoints.

77 Almost all AOSIS countries are also developing countries and G77 members, with few exceptions such as Cyprus. 78 An example of this is the sensitive issue of non-Annex I differentiation. Bangladesh, often on behalf of the LDCs, has been especially outspoken on this matter, stating that ‘‘large developing countries with large economies, resources and institutional capability to take mitigation, adaptation and technology-related actions cannot and should not be equated with LDCs even when all nations are required to lower GHG emissions’’. See www.bangladesh-climate.org/dox/Quarterly_3_2007.doc, retrieved May 28 2009. 79

Interview, Mr Patrick Finnegan, NGO climate campaigner, December 9 2007.

123


257

While the business community lead by the ICC ‘‘questions’’ the international framework based on ‘‘a progression of binding, differentiated, absolute emission reduction targets’’ and has been lobbying the UNFCCC/KP to ‘‘utilize incentives and other market oriented approaches as alternatives to [a] ‘targets and timetables’ approach’’,80 it does not represent the complete picture of private-sector representation in the UNFCCC negotiations. For example, the renewable energy industry lobby uses a logic very similar to the environmental NGOs, where a hard law framework is seen as crucial, outlining that ‘‘agreeing to maintain the continuity in the legally binding frameworks underpinning the carbon market’’ is an irreplaceable item in the post-2012 agreement.81 3.3 The role of institutional interaction in the post-2012 negotiations The first interaction category among Oberthu¨r and Gehring’s four types, cognitive interaction, is a particular form of inter-institutional learning, where ‘new information’ in a broad sense emerges from the output or functioning of the source institution, and feeds into the decision making of the target institution (Oberthu¨r and Gehring 2006, pp. 35–36). An example of cognitive interaction can be seen in the UN-based deliberations where the APP is usually referred to. The cognitive interaction with the APP essentially affects debates on ‘sectoral approach’ and ‘sectoral cooperation’, which has previously failed to become a focal point in the UNFCCC/KP process. According to Oberthu¨r and Gehring (2006), cognitive interaction usually is a synergetic process of learning, but it can also occur by establishing a ‘pilot’ institution to affect the agenda and decision making in a larger institution. In the UNFCCC/KP meetings, the APP was presented as an example of practical and effective sectoral cooperation and successful involvement of the private sector. This role of the APP was brought up in all meetings, most vocally by Japan. The debate on sectoral approaches has two contexts in the post-2012 negotiations (Table 2). While Japan, the USA, and Canada are the most vocal advocates of bottom-up sectoral approaches to be used for defining targets/actions for developed countries, seemingly all Northern countries are in favor of sectoral actions as advanced developing country MRV actions for the post-2012 agreement. From an Annex I point of view, such sectoral cooperation should involve a critical mass of Parties accounting for most of the greenhouse gas emissions from a particular sector to prevent carbon leakage and address competitiveness concerns. In contrast, as seen in the Bonn meeting, the G77 would like to limit all discussions on sectoral approaches to enhancing the implementation of Article 4.1 (c) of the Convention, promoting the development and transfer of technology. Overall, deliberating the sectoral approach within the UNFCCC/KP seems to have gained further momentum after the adoption of BAP.82 The APP has seemingly exerted some cognitive influence on introducing and promoting the general idea of a sectoral approach through the APP participants, most notably Japan but also Canada, the USA and Korea. However, the

80 ICC Policy Statement: Business Perspectives on a Long-Term International Framework to Address Global Climate Change, see http://www.iccwbo.org/uploadedFiles/Long_term_frameworks.pdf, retrieved May 28 2009. 81 Global Wind Energy Council, Press release, December 3 2007, see http://www.gwec.info/index. php?id=30andno_cache=1andtx_ttnews%5Bpointer%5D=3andtx_ttnews%5Btt_news%5D=115andtx_ttnews %5BbackPid%5D=4andcHash=4d3f73cf7c, retrieved 28 May 2009. 82 In the Bonn meeting ‘sectoral approaches’ already featured in the deliberations on several agenda items both in the AWG-KP and AWG-LCA, and in the Accra Climate Talks in September 2008 a workshop was organized on the subject.

123

258

A. Vihma

Table 2 The interaction between the source institutions, APP, G8 Dialogue, and MEM and the target institution UNFCCC/KP APP

G8 Dialogue

MEM

Cognitive influence

Sectoral approach

[Global target]

[Global target]

Commitment influence

Technology transfer

Financing

Financing, global target

Overall influence

Disruptive for developing ‘‘hard law’’

Unclear

Disruptive for developing ‘‘hard law’’

more specific idea of ‘soft law’ within the idea of a ‘sectoral approach’ that these countries prefer—a voluntary, bottom-up framework of national actions—is not yet institutionalized within the UNFCCC. Instead, in the 2008 negotiations, the debate on sectoral approaches was still in the stage of defining the concept of a sectoral approach. As seen in the statements of the USA at COP-13, an important output of the MEM process was claimed to be the global mid- and long-term target, which the MEM would feed into the UNFCCC negotiations. There has been little progress on the matter within both the MEM and the G8. If an agreement were reached in either of these intertwined arenas, however, it could be said that some cognitive interaction has occurred and the source institution has helped to achieve consensus in the target institution UNFCCC/KP. Interaction through commitment is a more straightforward causal pathway. While cognitive interaction is based on persuasion and presenting new information, the interaction through commitments works on the level of preferences of actors modified by costs and benefits (Oberthu¨r and Gehring 2006, p. 37). An example of interaction through commitment can be seen in the deliberations on technology transfer in the UNFCCC/KP, where the APP is increasingly serving as a reference. In the technology transfer debate, the APP gives certain important Annex I countries a possibility to emphasize technology transfer in a soft law framework that takes place on a voluntary basis and exists outside the control of the Convention and the COP. This mechanism of institutional interaction relates to what Van Asselt (2007a, p. 30) referred to as ‘‘disincentives for implementation of UNFCCC commitments’’, which arises from the APP’s different way of addressing key elements of the UNFCCC/KP and leads to an altered meaning of commitments. A very similar interaction through commitment is seen in the financing debate on a post2012 agreement. A senior negotiator (EU) elaborated on this effect of the MEM and the G8 Dialogue on post-2012 financing: They [MEM, G8 Dialogue] have an effect of widening the process and the discussion, in comparison to the UN process just continuing by itself. The UNFCCC is structurally heavy and non-flexible; it has to get impulses from outside, from civil society and institutions alike. Those meetings that involve big countries, wealthy economies especially, they tend to go straight to operative and financial issues, which have their effects here [within the UNFCCC].83 The link between UNFCCC post-2012 financing and the G8 Dialogue/MEM has been the creation of CIF of the World Bank. The USA, Japan, and the UK were active to promote these funds in the G8 and MEM, as stated by the Special Envoy of the USA in the second MEM in Hawaii;

83

Interview, EU delegate (anonymous), December 11 2007.

123


259

Japan, the United Kingdom and the United States are the only three [contributors to CIF], and there’s going to be a lot of solicitation over the next several months to try to get more of the major economies, more of the European Union to contribute to this.84 Although these funds are essentially World Bank-governed funds, they were presented as MEM/G8 outcomes. According to a UK ministry ‘‘the [CIFs] were officially launched at the G8 Summit [Hokkaido]’’.85 Also some key stakeholders seem to relate the funds directly to the G8 process—a BINGO statement in Poznan COP-14 welcomed the ‘‘innovative funding mechanisms such as the G8 Clean Technology Fund [sic] to accelerate promising technologies’’.86 In order to address criticisms that the funds were disruptive for the post-2012 negotiations, the World Bank later reiterated the CIFs’ consistency with the UNFCCC process. According to a World Bank document, the ‘‘UNFCCC recognizes the need for financial resources to be provided to developing countries to assist them in meeting the costs of mitigation’’.87 This differs from the Southern interpretation of the Convention, which sees the provision of financial resources—as well as transfer of technology—as commitments of developed country parties to the UNFCCC, and not as ‘assistance’ which indicates a business as usual donor-driven approach. The G77 countries argued in Bali and especially in the Bonn meeting that the funds motivated by the commitments under the Convention should be under the governance of the UNFCCC and be fully accountable to the COP.88 The recent refusal by the Indian Ministry of Environment and Forests to participate in the implementation of the CIF89 illustrates the broader phenomenon of the G77 countries having suspicions on multilateral funding channeled through a donor-led organization. The debate on funding related to the post-2012 agreement is an illustrative example of bargaining in interaction through commitments, since the question is rather straightforwardly about the power to control the use of the funds. At the end of the continuum is either placing the funds under the authority of the multilateral Convention, or using a donor-led organization such as the World Bank as an independent operating entity ‘guided by the Convention’. The launch of the MEM also triggered another interaction through commitment, as it gave the USA—as well as Canada, Japan, Russia, and other seemingly non-willing Annex I target setters—a somewhat credible alternative forum to discuss a global long-term objective. Especially at the Bali COP, the USA argued that the proper mitigation ranges would be negotiated within the MEM process over the coming year. Although the US argumentation was criticized heavily by the environmental lobby, the promise of results via the MEM may have affected the negotiation process, or at least the public discussion via media deliberations on the Bali meeting. The overall influence of the institutional

84 C. Boyden Gray, MEM Press Conference, February 1 2008, see http://useu.usmission.gov/About_ The_Ambassador/Gray/Feb0108_Gray_Hawaii.asp, retrieved May 28 2009. 85

UK Department of Environment, Food and Rural Affairs, see http://www.defra.gov.uk/environment/ climatechange/internat/devcountry/funding.htm, retrieved May 28 2009. 86

Jean-Yves Caneill, ICC, The Poznan Business Day, December 9 2008.

87

The World Bank, Proposal for a Strategic Climate Fund, see http://siteresources.worldbank.org/ INTCC/Resources/Proposal_For_A_Strategic_Climate_Fund_April_3_2008.pdf, retrieved May 28 2009. 88 AWG-LCA. 1st meeting, June 2 2008, 15:00–18:00; AWG-LCA, 2nd meeting, June 3 2008, 15:00– 18:00; SBI opening, June 4 2008, 10:00–13:00. 89

The Times of India, ‘India Refuses World Bank Aid to Fight Climate Change’, October 10 2008.

123

260

A. Vihma

interaction of the source institutions APP and MEM and the target institution UNFCCC/KP seems to have been somewhat disruptive for developing ‘hard law’ within the UNFCCC/ KP. Japan, Korea, Canada, and the USA have utilized the APP, at least rhetorically, to create a cognitive influence aimed at promoting a softer institution for the post-2012 climate agreement—although the degree of ‘softness’ being promoted varies between the countries and is naturally also subject to political changes within these countries. In its extreme form such a sectoral approach would be a nationally determined, non-legally binding framework without an international review process. The APP can also be considered disruptive for developing ‘harder’ mechanisms within the UNFCCC for the implementation of the technology transfer commitments. The MEM and the G8 Dialogue indirectly play a similar role in setting up and promoting climate funds outside the framework of UNFCCC/KP. In addition, the MEM created disruption in the debate for setting global mid and long-term targets in the 2007 negotiations via the USA insisting to reach these targets within the MEM process rather than the UNFCCC. The effect of the G8 Dialogue, the process most clearly intended by the founder UK to support the UNFCCC, is hard to pinpoint. Claims have been made that it played an important role in the background, keeping reluctant actors such as the USA and Russia involved in the post-2012 process and communicating the general importance of climate change as seen by the EU.90 The role of the soft law institutions after Bali is equally challenging to assess, although two of the processes, the MEM and the G8 Dialogue, have officially ended. The G8 Summits are likely to continue to engage in climate governance, especially in the crucial year 2009, and the MEM has reappeared as the Major Economies Forum (MEF) under the Obama Administration (see Skodvin and Andresen 2009). However, the inability to produce visible and concrete results and the large number of climate change-related meetings may well begin to reduce the importance of these high-level processes. The APP continues its sectoral implementation activities, and its profile within the UNFCCC has somewhat increased, especially in the technology transfer debates of 2008.

4 Conclusions In 2007, public awareness on climate change had reached new heights, and the time pressure to agree on launching a process to negotiate a post-2012 framework in the UNFCCC context was increasing. The expectations were high for the UNFCCC/KP to yield progress with a new sense of urgency. Meanwhile, more and more non-UN processes, minilateral initiatives adopting features of soft law, had emerged in the area of global climate governance. This article analyzed whether and how the non-UN initiatives influenced the negotiations of the UNFCCC/KP, focusing on the deliberations in four climate meetings under the UN umbrella in 2007–2008. The Bali Action Plan left a wide variety of possibilities on the table for the post-2012 agreement under the UNFCCC. The soft–hard law features of a future framework, according to the criteria of Abbot and Snidal (2000), are very much open. Furthermore, the true weight of the influence from the soft law institutions APP, G8 Dialogue, and MEM can only be assessed afterward. The objective of this article was to see whether the possible interaction of the non-UN soft law and the UNFCCC/KP could be seen in the public discourse of the negotiations. It became evident that the multitude of climate governance processes show interactions which have, according to the preliminary examination 90

See these views discussed in Karlsson (2009).

123


261

presented in this study, the potential to open up opportunities for strategic behavior with disruptive consequences for the ‘hardness’ of the UNFCCC/KP. However, this result is contextual by its very nature, and applies for a rather limited time period. After the Copenhagen climate conference in 2009, the political conditions for all global climate initiatives may be considerably different, depending on the outcome of the meeting. Two causal mechanisms were traced and analyzed in this study. First, the soft law initiatives APP and MEM/G8 Dialogue seem to have influenced the debate on the implementation of UNFCCC commitments, in technology transfer (APP) and financing (MEM/G8 Dialogue). Second, the APP was profiled as a prime example of the ‘sectoral approach’, especially in the statements of Japan, and since Bali ,has gained somewhat more attention in the UNFCCC deliberations. On a smaller scale, the launching of the MEM process also influenced the long-term objective debate in 2007, and the MEM even featured as a political bargaining chip between the USA and the EU at the final days of the Bali COP. The overall impact of the G8 Dialogue was unclear, but appeared to be rather limited. The analysis illustrated that to engage the main G77 countries, non-UN soft law has to concentrate in producing results on rather specific issues in negotiations (MEM/G8 Dialogue) and implementation activities (APP), and feeding these results back to the UNFCCC/KP process. The Northern proponents of soft law—Canada, Japan, Korea, and the USA—did not make explicit arguments that soft law would be ‘better’, more effective, or competitive to the harder multilateral UNFCCC framework. The main line of argumentation aimed at legitimizing the non-UN soft law by stressing that it contributes positively to the post-2012 negotiations under UNFCCC/KP. This study consisted of a preliminary investigation into the effects of three soft law institutions on the UNFCCC negotiations via institutional interaction. It pointed out the key actors and debates, and made distinctions on the differences of the source institutions, and the causal mechanisms involved. However, with a limited time period and amount of meetings in the study, there remains a need to look closer into these interactions—as well as the general phenomenon of soft law influencing hard law in global governance. This genre of institutional interaction is in a fundamental sense both academically interesting and a policy-relevant subject of research. The question whether the interaction of non-UN soft law and the UNFCCC/KP hard law played a significant role in the post-2012 negotiations can naturally be answered only after the negotiation process. However, the country positions, and mechanisms of institutional interaction outlined in this analysis seem to indicate that the soft law approach in its different forms is likely to have impacts on the future of the UNFCCC/KP, and to stay as a persuasive feature in global climate governance. Acknowledgments Many thanks are due to Christian Holtz, Patrick Finnegan, Kaisa Kosonen, Tirthankar Mandal, and Steve Sawyer for their support and informal advice in the UNFCCC corridors. I would also like to thank the referees, and especially the editors, Harro van Asselt and Sylvia Karlsson-Vinkhuyzen, for their guidance.

References Abbott, K. W., & Snidal, D. (2000). Hard and soft law in international governance. International Organization, 54(3), 421–456. Afionis, S. (2008). From Montreal to Bali: The 2005–2007 European Union strategy for reengaging the United States in UNFCCC negotiations. In-Spire: Journal of Law, Politics and Societies, 3(2), 1–14. Retrieved 28 May 2009, from www.in-spire.org/archive/vol3-no2/afionis32.pdf.

123

262

A. Vihma

Ba¨ckstrand, K. (2006). Multi-stakeholder partnerships for sustainable development: Rethinking legitimacy, accountability and effectiveness. European Environment, 16(5), 209–306. Biermann, F., Pattberg, P., Van Asselt, H., & Zelli, F. (2009 forthcoming). The fragmentation of global governance architectures: A framework for analysis. Global Environmental Politics, 9(4) (in press). Bilder, R. (2000). Beyond compliance: Helping nations cooperate. In D. Shelton (Ed.), Commitment and compliance. The role of non-binding norms in the international legal system. Oxford: Oxford University Press. Bodansky, D. (2009). Legal form of a new climate agreement: Avenues and options. Washington, DC: Pew Center on Global Climate Change. Retrieved 28 May 2009, from http://www.pewclimate.org/ docUploads/legal-form-of-new-climate-agreement-paper.pdf. Breidenich, C., & Bodansky, D. (2009). Measurement, reporting and verification in a post-2012 climate agreement. Washington, DC: Pew Center on Global Climate Change. Retrieved 28 May 2009, from http://www.pewclimate.org/docUploads/mrv-report.pdf. Cle´mencon, R. (2008). The Bali road map A first step on the difficult journey to a post-Kyoto protocol agreement. Journal of Environment and Development, 17(1), 70–94. Dai, X. (2007). International institutions, and national policies. Cambridge: Cambridge University Press. Karlsson, S. (2009, February). G8 climate action from Gleneagles to Hokkaido—dying flare or lasting flame? Paper presented at the International Studies Association Conference, New York, February 2009. Lawrence, P. (2009). Australian climate policy and the Asia Pacific partnership on clean development and climate (APP): From Howard to Rudd—continuity or change? International Environmental Agreements: Politics, Law and Economics, 9(3). doi:10.1007/s10784-009-9102-1. McGee, J., & Taplin, R. (2006). The Asia–Pacific partnership on clean development and climate: A complement of competitor to the Kyoto protocol? Global Change Peace and Security, 18(3), 173–192. McGee, J., & Taplin, R. (2009). The role of the Asia Pacific partnership in discursive contestation of the international climate regime. International Environmental Agreements: Politics, Law and Economics, 9(3). doi:10.1007/s10784-009-9101-2. Oberthu¨r, S., & Gehring, T. (Eds.). (2006). Institutional interaction in global environmental governance. Cambridge, MA: The MIT Press. Rajamani, L. (2008). From Berlin to Bali and beyond: Killing Kyoto softly? International and Comparative Law Quarterly, 57, 909–939. Shelton, D. (2000). Introduction: Law, non-law and the problem of ‘‘soft law’’. In D. Shelton (Ed.), Commitment and compliance: The role of non-binding norms in the international legal system. Oxford: Oxford University Press. Skjaerseth, J. B., Stokke, O. S., & Wettestad, J. (2006). Soft law, hard law, and effective implementation of international environmental norms. Global Environmental Politics, 6(3), 104–120. Skodvin, T., & Andresen, S. (2009). An agenda for change in U.S. climate policies? Presidential ambitions, and congressional powers. International Environmental Agreements: Politics, Law and Economics, 9(3), this issue. Stokke, O. S. (2001). The interplay of international regimes: Putting effectiveness theory to work. FNI Report 14/2001. Lysaker: Fridtjof Nansen Institute. United Nations Framework Convention on Climate Change (1995). Decision 1/CP.1. The Berlin mandate. Review of the adequacy of Article 4, paragraph 2(a) and (b), of the Convention including proposals related to a protocol and decisions on follow-up. Bonn: UNFCCC. Retrieved 28 May 2009, from http://unfccc.int/resource/docs/cop1/07a01.pdf. United Nations Framework Convention on Climate Change (2007). Decision-/CP.13. Bali action plan. Bonn: UNFCCC. Retrieved 28 May 2009, from http://unfccc.int/files/meetings/cop_13/application/ pdf/cp_bali_action.pdf. Van Asselt, H. (2007a). Achieving unity within diversity—interactions between the climate regime and the Asia–Pacific Partnership on clean development and climate. Paper presented at the Amsterdam Conference on Earth System Governance, Amsterdam, May 2007. Van Asselt, H. (2007b). From UN-ity to diversity? The UNFCCC, the Asia–Pacific Partnership, and the future of international law on climate change. Carbon and Climate Law Review, 1(1), 17–28. Young, O. (2002). The institutional dimensions of environmental change: Fit interplay, and scale. Cambridge, MA: The MIT Press.

123