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State and Non-State Actors in the Formation and Shaping of Treaty Regimes
Sovereign States and Regime Formation [TOP] Sovereign states are the primary subjects of international law. State sovereignty is important to international environmental law because of the fundamental tension between a state’s interest in protecting its independence (i.e. its sovereignty) and the recognition that certain global environmental problems require international cooperation. Most international environmental treaties by their very nature constrain a state’s sovereignty. However, under the rule of international law, no State may be bound to a treaty without its consent. Sovereign states are independent and autonomous. Because of this autonomy there is no world government.
State sovereignty in the legal sense signifies independence;
that is, the right to exercise within a portion of the globe and to
the exclusion of other States, the functions of a State such as the
jurisdiction and enforcement of laws over persons therein.
Sovereignty reflects the broad scope of responsibilities, rights,
authorities and powers that international law confers when it
confers “statehood”. There is also what is called the
territorial sovereignty, which extends to the geographic borders of
the country and to the underlying subsoil as well as the airspace
overhead.
All states have common responsibilities to protect the
environment and promote sustainable development, but because of
different social, economic and ecological situations, countries must
shoulder different responsibilities. This principle of
‘common but differentiated responsibility’ reflects core
elements of equity, placing more responsibility on wealthier
countries and those that are more responsible for causing specific
global environmental problems. Basically, the developed countries
must acknowledge the responsibility that they bear from the
technologies and financial resources they command. In the Montreal
Protocol on Substances that Deplete the Ozone Layer, Article 5
states that, “The Parties undertake to facilitate access to
environmentally safe alternative substances and technology for
Parties that are developing countries and assist them to make
expeditious use of such alternatives.
In case of ozone depletion and the road to Montreal Protocol the
main issue was whether restrictions should be applied to the
production or the consumption of controlled substances. The
negotiations proved difficult. The principal opponents were the
European Community and the United States. The EC pushed hard for the
production concept. European negotiators argued that it was
administratively simpler to measure, and thereby to control output,
since there were only a small number of of CFC and halon producing
countries as opposed to thousands of consuming industries and
countless points of consumption. For example, a production limit
would essentially lock in the European's foreign markets, which
absorbed about one-third of total EC output. The only way that other
producers could supply those markets would be to starve their own
rising domestic consumption. Thus, EC exporters with no viable
competitors would enjoy a monopoly reinforced by treaty obligations.
Controlling only production thus risked undermining the
effectiveness of a protocol. Sweden, the United States, and others
continued to emphasize during the debates that, if only production
were controlled unfair benefits would be conferred on the EC while
CFC importing nations especially the developing countries would be
at a disadvantage. The reality is that the great majority of
countries imported, rather than produced, CFC's. As early as the
second negotiating round, Australia, Denmark, Finland, New Zealand,
Norway, Sweden, and the Soviet Union joined Canada and the United
States in advocating a consumption- related formula. The EC
Commission found itself isolated, and a solution was finally crafted
at Montreal. Both consumption (defined as "adjusted production) and production would be frozen and reduced according to an agreed-upon schedule. The U.S. originally called for a freeze, to be allowed by three phases of progressively more stringent reductions. In the U.S. draft text presented at the first session in December 1986, these cuts were shown at 20 percent, 50 and 95 percent of the base year. The United States avoided specifying target dates for these reductions, but states only that they should occur soon enough to provide adequate protection for the ozone layer while also allowing time for industry to adopt. Other sovereign state that joined U.S. for more stringent controls were Canada, Egypt, New Zealand, the Nordic States and Switzerland. Later on when the EC commission proposed lowering their existing capacity gap and refusing to consider any additional specified reduction phases beyond the initial 20 percent they lost more support. The Federal Republic of Germany, Belgium and Denmark openly joined the U.S. and others in defeating a U.K. attempt to weaken the terms and diminish the status of the chairman's document. Two other countries that remained noncommittal were Japan and the Soviet Union. They refused to comply with the Mostafa Tolba's proposal of a freeze by 1990, to be followed by successive 20 percent reduction four years after the protocol's entry into force. But with Tolba's persistence and constant modification to his draft under pressure from U.S. and others his text for article 2 became the basis for final negotiating session in Montreal and received support there from a wide range of countries. In addition to those that had previously publicly endorsed the 50 percent cut (Canada, Egypt, Finland, New Zealand, Norway, Sweden, Switzerland and the United States), Tolba's proposal now received backing from Argentina, Australia, Japan, Mexico, Venezuela, and other countries. The EC Commission, after considerable haggling and several discordant caucuses with member-country delegations, finally accepted the semiautomatic 50 percent total cut. The protocol text, as finally agreed upon, established a target date of January 1, 1989, for entry into force, with a freeze on CFCs at 1986 levels effective for the 12-month period beginning 7 months after EIF. The halons were frozen at 1986 level for the 12- month period beginning three years after EIF. The automatic 20 percent CFC reduction would commence with the 12- month period beginning July 1, 1993. The additional 30 percent CFC reduction unless reversed by a two-thirds majority of parties representing at least two-thirds of total consumption, would take effect with the 12-month period beginning July 1. Crucial to the reduction timetable throughout the negotiations were the periodic scientific and economic assessments originally proposed by Canada and the United States, which would enable the parties to reexamine and, if necessary, revise any of the reduction steps.
The United
Nations Environmental Programme (UNEP) was conceived at the
1972 UNEP’s Division of Programmes is responsible for implementation of its natural resource activities. Its Environmental Law Unit prepares draft treaties to be reviewed and revised by ad hoc expert groups convened by UNEP. Then, the draft is submitted to the Governing Council for debate and adaptation. Since 1982, UNEP has conducted its efforts to promote the development of international environmental law under a pair of ten-year work plans known as the first and second Montevideo Programmes. The first Montevideo Programme, which ended in 1991, led to the adaptation of both the Vienna Convention for the Protection of the Ozone Layer (Vienna Convention) and the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol). UNEP
provides much expertise and energy to guide the development of
international law with respect to ozone depletion. UNEP releases important
studies that have been done on the
ozone depletion. Also,
press releases about international workshops promote international
cooperation and public awareness about the ozone crisis.
One UNEP
press release describes an international workshop, which
took place in January 2001, promoting increased military cooperation
to tackle ozone and climate issues.
This article encourages military organizations to halt their
use of ozone depleting substances (ODS), reduce emissions of
greenhouse gases and seek increased energy efficiency.
In March of 2001, UNEP’s Division of Technology, Industry
and Economics (UNEP DTIE) released an updated Cd-rom that supports
developing countries’ compliance with the Montreal Protocol.
The version is called
OzonAction
Strategic Information system (OASIS), and it provides
developing countries with the strategic information they need to
make good decisions about technical and policy issues. UNEP has also
established an International
Day For The Preservation Of The Ozone Layer on 16th of
September. In 2000,
UNEP And World's Most Northern And Most Southern Cities celebrated
this special day together. These
efforts given great publicity for the fight to save the ozone layer
all around the world. Also, UNEP has released many different books
about the ozone layer and the efforts for it’s protection. (Handbook
for the International Treaties for the Protection of the Ozone Layer;
The
Impact of Ozone-Layer Depletion)
UNEP also initiates and coordinates many conferences and treaties, such as Stockholm Conference, Agenda 21and the Rio Declaration. Chapter 9of Agenda 21 is specifically designed for the Protection Of The Atmosphere. The UNEP IE OzoneAction Programme is a very modern and up to date division of the UN Family, more exclusively the UNEP Division. This program very actively campaigns on the ozone depletion. They sponsor major studies of the ozone hole and provide financial support to developing countries that need to phase out CFCs from their production. Many NGOs are connected and communicating with this agency, for many articles can be found on NGO sites that originated from the UNEP Ozone site. This agency is like a distributor of information about this pressing global issue.
Administering treaties are largely done by Conferences of the Parties (CoPs), Secretariats, and subsidiary bodies, including technical and expert committees. Amendments and modifications adopted at a series of CoPs have extended both the scope and the extent of reductions in ozone depleting substances under the Montreal Protocol. These institutions gather, analyze and distribute information; maintain authoritative convention records; support the Conferences of the Party; monitor compliance and facilitate implementation and coordinate with other treaty regimes and secretariats. The World Health Organization (WHO) is an institution, which is a part of the United Nations family. They deal with much health related issues. Many of these issues are related to environmental degradation and pollution. The depletion of the ozone layer is one of the most pressing health concerns they are dealing with. Their Project Summary for the ozone depletion is reducing health and environmental effects from enhanced ultraviolet radiation exposure due to stratospheric ozone depletion.
Non-Governmental Organizations [TOP]
The Center for International Environmental Law (CIEL) is a public interest, not-for-profit environmental law firm founded in 1989 to strengthen international and comparative environmental law and policy around the world. CIEL provides a full range of environmental legal services in both international and comparative national law, including: policy research and publication, advice and advocacy, education and training, and institution building. CIEL’s Climate Change Program strives to protect the Earth’s climate system while promoting other environmental and social concerns, such as forest conservation, bio diversity protection, and human rights. CIEL has played an integral role advising policy makers how to create a sustainable, enforceable emissions reduction framework. CIEL has been intimately involved in the negotiation of the Kyoto Protocol, which establishes binding emissions reduction targets for industrialized countries. For more than three decades, the Environmental Law Institute (ELI) has played a pivotal role in shaping the fields of environmental law, policy, and management, domestically and abroad. Today, ELI is an internationally recognized, independent research and education center. Through its information services, training courses and seminars, research programs, and policy recommendations, the Institute activates a broad constituency of environmental professionals in government, industry, the private bar, public interest groups, and academia. Central to ELI's mission is convening this diverse constituency to work cooperatively in developing effective solutions to pressing environmental problems. Ozone depletion is one of their most widely covered issue areas.
The Consortium for International Earth Science Information Network (CIESIN) provides thematic guides on the ozone layer depletion issues, overview of ozone layer depletion, articles on the production and use of chlorofluorocarbons, overview of health effects from increased ultraviolet-b radiation, and other scientifically supported articles about the ozone depletion and it’s health effects. This program draws attention to this very important topic. OzoneAction works on ozone depletion and climate change issues with a staff of four. They provide important information on ozone depletion. They also exchange information with other non-governmental organizations. But this organization is too small to make a large difference on the issue area, or in policy drafting and implementation. The Environmental Defense is an organization, which mails a monthly newsletter to its supporting members. In these letters they discuss a variety of international issues that are with pressing importance. Also, they do lobby work about the ozone depletion problem. One article in their May 1995 newsletter describes that Washington’s budget problems put ozone layer protection in doubt. Another article, from the September 1993 newsletter clears up the confusion about the ozone depletion.
The Sierra
Club is a United States organization on environmental
protection. The Sierra
Club supports such limitations on human activities as may be
necessary to protect the stratospheric ozone layer, which shields
life on the surface of the Earth from excessive solar ultraviolet
radiation. The Sierra Club supports basic atmospheric research and
continued assessment of relevant human activities in order to
determine whether those activities will change the ozone
concentration in the upper atmosphere. The Sierra Club supports a
moratorium on the deployment of new technologies, which could damage
the stratospheric ozone layer (e.g., the SST).
The Sierra Club also supports a phase-out of those existing
technologies, which are known or are likely to affect adversely the
stratospheric ozone layer. The nonprofit Institute for Global Communications (IGC) changed the way the progressive community worked by introducing them to email, online discussions, mailing lists and the Web. Today IGC Internet offers progressive individuals and groups a place on the Internet to learn, meet and organize. IGC Internet is changing to take its community of activists and nonprofit professionals into the Internet's next wave by focusing on content, information sharing and new, collaborative tools. They provide a place for environmental groups, non-governmental organizations from all over the world, to meet each other, network and exchange information on such topics as the ozone depletion or the climate change. National and Multinational Corporations [TOP] The role of corporations in the development and implementation of international environmental law is complicated, for they are often linked both to the cause and the potential solution of most global environmental problems. Corporations believe that in international politics environmental protection should not destroy economic development. Therefore, large corporations are directly affected by environmental regulation and they tend to resist national and international policies that they believe would impose significant new costs on them or otherwise reduce their expected profits. When businesses face stronger domestic regulations on an activity with a global environmental dimension, as did the U.S. chemical industry in the cases of CFC production, they are likely to support international action to impose similar standards on competitors abroad. Business organizations enter into environmental politics with
some significant assets: they have good access to powerful
bureaucratic sectors in most governments, and in cases like ozone
depletion they
have the ability to put forward technical solutions that serve their
own interests. Meaning businesses use their connections and power to
prevent the emergence of effective regimes for hazardous substances
that deplete the ozone layer. They advance their goals by maximizing
their veto power by forming broad transnational coalitions both home
and abroad. A classic case of business success in stalling
international action is ozone protection in the 1970’s and
1980’s. The major chemical companies producing CFC’s long
exercised a veto over international efforts to phase out CFC
production. The U.S. based firm DuPont produces
one-fourth of the worldwide total amount of CFC and it managed to
prevent the establishment of a global ozone protection policy for
more than a decade after CFCs were first identified by scientists as
the cause of ozone depletion. The chemical industry lobbied
successfully against a legislature ban on the issue of CFCs when
they asked the government for economic incentives in the form of tax
credits. Often time businesses are considered as the enemy of
environmental protection. It is not beneficial for major-producing
companies to be restricted in their production because of the
pollution that they produce. They are in business whose main goal is
to make a profit. When the international policymakers attempt to
intervene in corporation’s production the businesses fight back
anyway they know how. They want to prolong the law making process as
much as possible because they truly care about their profits and not
so much about the environment. Even though there are a lot of businesses that tend to ignore the issues of global pollution and ozone depletion there are few non-governmental organizations (NGO’s) that do care about the environment. Those organizations conduct their own foreign policy, gather their own information from informal sources, and increasingly expect to participate in international affairs. An organization called Center for International Environmental Law (CIEL) are dedicated primarily to global and transnational environmental issues like ozone depletion. These organizations use the vast stream of technology such as the Internet, in particular, to mobilize activists and to push for stronger environmental policies. When corporations reach people outside of the borders of their state they force governments of those states to consider domestic public opinion that re often ignored. Success often depends on internal diplomacy-the ability to attract and maintain the attention of official decision makers. Basically, corporate interests are no different than any other "special interest" trying to influence the political process. The basic strategy used by the corporation to influence politics is as follows. They begin by collecting massive amounts of data that would help explain the problem. Then they begin looking for support by communicating with other corporations interested in the same issue. As more people become interested corporations strategically organize conferences and discussions with their local governments to force them to commit publicly to implementing changes. In the case of ozone depletion the promise was to reduce the production of CFCs. Patterns of Leadership and Interaction [TOP]
Stage I of the process of formulating stratospheric ozone depletion policy defers greatly from Stage II. In stage I, CFC-induced depletion of stratospheric ozone was principally a domestic issue within the United States; in stage II it had become an international issue. In stage I, there was little consensus among the principal actors on the nature and scope of the problem; in stage II, based on strong scientific evidence, consensus on the nature and scope of the problem was reached. In stage I, the public was reacting to the potential threat of skin cancer; in stage II, they were reacting not only to the potential threat of skin cancer but also to the reality of the Antarctic ozone hole. Finally, in stage I, industry argued that substitutes for non-aerosol uses of CFC did not exist; in stage II, industry not only admitted that it would be possible to develop effective substitutes, they also viewed the protocol as a necessary measure to spur development of these substitutes.
The Montreal Protocol is not a perfect document, it is nevertheless a landmark agreement. It is the first international agreement aimed at resolving a global atmospheric problem. It is important not only because it outlines measures agreed on by the international community to protect the ozone layer, but also because it signifies that innovative approaches to major global environmental problems are possible. Yet the world should not be lulled into a false sense of security by the protocol: the protocol may not solve the ozone depletion problem, at least in the near term. In addition, while there are certainly similarities between ozone depletion and other global environmental problems such as global warming, the means for dealing with these other problems may not be the same as for ozone depletion. The Montreal Protocol, however, offers the precedent of international negotiation and agreement on global environmental problems.
The many different categories of actors have contributed in many
ways to the issue area of ozone depletion. Since the middle of the
1970s, scientists realized that there is an ozone layer around the
globe, which protects our Earth from the harmful rays of the Sun.
They also scientifically proved that CFCs, which are used in
refrigerators, aerosol sprays, and has many other uses, including
military usage, are very harmful for the ozone layer, and slowly
started to deplete the ozone layer. The ozone layer is the thinnest
above Antarctica, which is viewed with grave concerns, for the
effects of the ozone layer thinning is greatly contributing to
greenhouse effects and global warming, which would eventually make
Earth uninhabitable. The Vienna
Convention and
the Montreal
Protocol were put together by the different interested
participants. Sovereign States, Government Agencies, International
Organizations, Non-Governmental Organizations, and National and
Multinational Corporations were contributing to the specific details
of these were important treaties. The implementation of these
programs is divided up between all of these participants. Treaties can only be created with the consent of States, it is an international agreement. In the Vienna Convention and Montreal Protocol, many States consented to this treaty. But before this treaty to “save the ozone layer” could be written and signed, many other actors participated. International organizations (IGOs), non-governmental organizations (NGOs), and other non-State actors are playing an increasingly significant role. IGOs and NGOs were instrumental in laying the groundwork for important multilateral environmental agreement. The Vienna Convention and the Montreal Protocol were the successful result of research at the frontiers of science combined with a unique collaboration between scientists and policymakers. In 1974, the US scientific community began a research campaign, involving the National Academy of Sciences, and a growing number of prominent chemists, meteorologists, physicists, and space scientists from NASA, the National Oceanic and Atmospheric Administration (NOAA), and leading universities. Based on these findings, in late 1984, WMO and UNEP planned a conference for the protection of the ozone layer. British scientists in 1985 published astonishing findings about the Antarctic Ozone Hole. State governments from all over the world negotiated about the Protocol. UNEP was the main binding force between all of the participating actors. In Montreal, over 60 States finally signed the Protocol. Scores of observers included representatives of many environmental organizations; industrial firms and associations, and the international news media. The adoption, authentication and ratification of the treaty were done by each States’ governments with persuasion from international governmental organizations and non-governmental organizations. Entry into force happened when all of the signing actors ratified the treaty. Enforcement and keeping the treaty up-to-date is up to all of the actors who participated. Scientists and non-governmental organizations first diagnosed the problem of ozone depletion. Then, the many international organizations initiated the Vienna Convention and the Montreal Protocol. Sovereign States were the active participants of the cooperation and negotiation that took place at the workshops and at the drafting of the protocol. Multinational and national corporations are the ones that created this problem in the first place by creating the harmful chemicals. Now, some other organizations are creating new substitute substances that will not be harmful to the ozone layer. Sovereign States are the ones who implement the policies. International Corporations and Non-Governmental Organizations are responsible to get the word out to the public about the specific details of the ozone depletion problem. They keep the specific issue area in the public view, so all of the other actors must deal with the problem, and cannot just forget about it.
The near and the medium term agenda is set by the United Nations. United Nations and its subfamilies, UNEP and UNDP, are the most important workers of the ozone depletion problem. They set the agenda, and they are the most important intermediaries between the many international, governmental and non-governmental organizations. They provide funds for implementation, development and research. They create many articles that contain data gathered all around the globe. The United Nations is a very important and internationally respected institution, which is very reliable on providing adequate and very precise data. On the other hand, non-governmental organizations and other international organizations are not as well connected to the rest of the world. They are not trusted by many of the other participants (for example, organizations originating from the United States is not trusted by many developing countries, who see the United States as serving its own purposes. The United Nations with its enormous work force, and with its connections all around the globe make it an all-powerful force. Law seems to be working in the process of moving the problem solving forward. Bans on CFCs have been obeyed, at least in the United States and the Western nations, where phase outs have been completed by 2000, and other dates are being moved forward. The United States, Canada and Australia have been very active in the ozone depletion regime. They, in cooperation with other nations, provide research information on the depletion of the ozone layer, they provide necessary funding, and push developing countries for faster phase outs. Research on substitutes for CFCs have been progressive with very promising results.
In order to fight the Ozone Depletion, these organizations need to
work together, in unison, sharing information and providing crucial
elements to policy making, implementation, and other parts of the
process.
Hunter, Davis,
Salzman, James and Zaelke, Durwood. International Environmental Law and Policy. New
York: Foundation Press, 1998. Jurgielewicz, Lynne M. Global Environmental
Change and International Law University Press of America.
1996.
Simonovic, Ivan. "State Sovereignty and Globalization: Are Some
States More Equal?" The
Georgia Journal of International and Comparative Law
Summer, 2000.
Dobson, Tracy. "Acid Rain and Ozone Layer Depletion:
International Law and Regulation." The American Journal
International Law. April,
1990 Weiss, Magraw and
Szasz. International Environmental
Law: Basic Instruments and References 1992-1999.
Transnational Publishers. 1999. |
Public international organizations or inter-governmental
organizations (IGOs) are neither States themselves not purely
non-State actors. They
are “public international organizations”, referring to bodies
that are created by international agreements among States.
The agreement creating the organization establishes its
goals, authority, and procedures.
IGOs’ governing bodies are usually comprised of State
delegates representing the interests of their respective States.
The United Nations and its subsidiary organs and specialized
agencies have played a critical role in international environmental
law and policy. These
institutions facilitate the creation of most new treaty law by
conventions, and initiating and hosting negotiations of new
international instruments for environmental protection.
They contribute to the development of customary international
law by passing resolutions, declarations, model codes and guidelines
on environmental issues. The most important role of these
organizations is the day-to-day implementation, monitoring and
support of national efforts to protect the global environment.
Stockholm Conference on the Human Environment and created by
the United Nations General Assembly later that year.
UNEP became the first agency with a specific environmental
agenda, its mission to “facilitate international cooperation in
the environmental field; to keep the world environmental situation
under review so that problems of international significance receive
appropriate consideration by Governments; and to promote the
acquisition, assessment and exchange of environmental
knowledge.” UNEP’s 
The 
The 
Non-Governmental
Organizations (NGOs) are non-State actors, and they conduct their
own foreign policy, gather their own information from informal
sources and increasingly expect to participate in international
affairs. In the
environmental field, the number of NGOs has exploded in recent
years, as has NGO capacity to build networks, gather and analyze
technical information, and gain attention of policymakers in many
countries. They truly
have “gone global”. Virtually
every country now has at least one environmental NGO, many of which
are actively seeking partnerships and cooperative activities with
their colleagues from other countries.
Even thought the United States houses many NGOs, there are
surprisingly sophisticated and effective activities with their
colleagues from other countries. There are three types of NGOs in
the United States: large membership organizations (ex. 
As
things stand right now, Sovereign States hold the upper hand for
they have the power to implement the specific policies and treaties
that have been signed. But on the other hand, multinational and
national corporations are the ones causing this problem by producing
these harmful chemicals in the first place. They are very hard to
punish, because for them, paying the “fine for violation of law
and pollution” is easier than to research and develop expensive
replacement alternatives that could substitute for CFCs.
Non-Governmental Organizations, especially non-profit organizations
are the true heroes of this fight, because they lobby for policy
changes, they research, campaign, and promote public awareness about
the environmental issues. These organizations are usually financed
by different donations, and funds, so, especially in the United
States, they are very well organized and have substantial financial
backing to accomplish something about the concerned topic, like the
protection of the ozone layer.
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Last
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Copyright
© Geoffrey Wandesforde-Smith, and Inna Verdiyan, 2001. All federal and state
copyrights reserved for all original material presented in this
course through any medium, including lecture or print. Graphic design
by Maureen Coulson and Geoffrey Wandesforde-Smith, from an
original design by Eric Chua, Jared Menke, and Geoffrey
Wandesforde-Smith.
Web development also assisted in part by a grant to UC Davis from the Mellon Foundation.
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