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European Union Foreign Policy and the Global Climate Regime

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Simon Schunz

Ever since the first international negotiations on climate change in the early 1990s, the European Union has aspired to play a leading role in global climate politics.
This book engages in a longitudinal analysis of the EU’s participation in and impact on the United Nations climate regime.
It provides not only comprehensive insights into the evolution of EU foreign climate policy, but also a thought-provoking audit of the potential and limits of the EU’s influence in a major domain of global affairs.
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Chapter 3. From the Berlin Mandate to the Kyoto Protocol (1995–1997): EU Influence on the First Development of the Global Climate Regime

← 66 | 67 →CHAPTER 3

From the Berlin Mandate to the Kyoto Protocol (1995–1997)

EU influence on the first Development of the Global Climate Regime

This chapter provides an in-depth analysis of the EU’s influence attempts and their effects during a period that led to the substantial development of the global climate regime. It analyses the negotiations that were kicked off at COP 1 in March 1995, developed over eight meetings of the Ad Hoc Working Group on the Berlin Mandate (AGBM) and COP 2 in Geneva, and were concluded with the adoption of the Kyoto Protocol at COP 3 in late 1997 (for an overview, see Annex II).

The Context: Major Developments in Global Politics and Climate Science

The years 1992 to 1995 had already been dominated by the political and socioeconomic adjustments to the fall of the iron curtain. These themes continued to dominate agendas also during the following years.

The end of the Cold War had left the United States as the “sole superpower” in an international system otherwise characterized by a crumbling of multi-ethnic states both in what had been the Soviet Union and in Central and Eastern Europe. This unique “unipolar moment” as well as the profound political and economic transformations in the two regions were bound to have implications for the functioning of global multilateral institutions. At the same time, the breakdown of the economic systems in the former Warsaw Pact states also had immediate environmental consequences. Highly pollutant and energy-intensive factories had to close, resulting in an immediate reduction of air pollution and, notably, greenhouse gas emissions. Further, the economic downturn experienced in many Western countries, growing “unemployment and excessive national public expenditure deficits beleaguered most governments”, decreasing their interest in environmental, including climate, policies (Schröder 2001: 61). This tendency was reinforced by a decline in public interest and media attention on the topic of climate change after the Rio summit (O’Riordan/Jäger 1996: 27).

← 67 | 68 →In contrast to these potentially adverse political and socioeconomic background factors, significant advances in knowledge about climate change were bound to have a positive effect on the negotiations. In late 1995, the IPCC published its comprehensive Second Assessment Report (SAR), which “set the [scientific] context for the negotiation of the Kyoto Protocol” (Grubb et al. 1999: 7). Compared to the first Report of 1990, which had solely confirmed the existence of the greenhouse effect, emphasized its unnatural intensification through human activity and provided loose estimates as to future temperature rise, the SAR was more affirmative in its statements (IPCC 1995a). Its centre-piece, the report of the IPCC Working Group on Science, made clear that “greenhouse gas concentrations have continued to increase” due to discernible human influence (IPCC 1995b: points 1 and 4), and that this trend would lead to an average temperature rise of 2°C over the course of the 21st century (IPCC 1995b: point 5). The report generally had the potential to increase the pressure in the regime, while also providing ample examples of policy solutions to tackle the problem (IPCC 1995c; Grubb et al. 1999: 14–17). Nonetheless, it also pointed to the continued existence of uncertainties (IPCC 1995b: point 6).

Key Actors in the Global Climate Regime and their Positions

Key Actors Other than the EU

Besides the EU, three core blocs were involved in the negotiations on a protocol to the UNFCCC: developing countries traditionally cooperated under the G-77/China umbrella; JUSCANZ (Japan, United States, Canada, Australia, New Zealand), which later became JUSSCANNZ (with Switzerland, Norway and Iceland), had formed a new negotiating group of non-EU industrialized countries after the UNFCCC negotiations; finally, the countries in economic transition, including Russia, cooperated to defend their special interests in the talks.

JUS(S)CA(N)NZ,1 an “unnatural alliance” for some, emerged gradually as a counterpart to the EU during these negotiations. It united countries for whom emissions reductions were, for a variety of reasons, less politically desirable and arguably less easily achievable than for the EU (Grubb et al. 1999: 34). Central to this group’s behaviour throughout the talks was the position of the US and, in the final stages, of the Japanese hosts of the decisive COP 3. These two countries also represented the largest GHG emitters in absolute terms within the coalition.

← 68 | 69 →In the early 1990s, the United States was by far the most important carbon dioxide emitter in the world. Its share of the total CO2 emissions of all industrialized countries in 1990 lay at 36% (UNFCCC 1997e: 60).2 As the world’s largest coal producer and second largest producer of oil and gas, the US had become used to a “low-price energy culture”, making it highly dependent on the use of fossil fuels (Grubb et al. 1999: 31). This dependence outweighed the threat perception about climate change, which was expected – at the time – to manifest itself above all through extreme weather events in some regions of the country (Oberthür/Ott 1999: 18–19). Consequently, climate change was thus predominantly framed in economic terms (Damro/Mendez 2003; Baker 2006). The political system of the US facilitates an economic framing of the subject, since Congress plays a significant, indirect role in the definition of negotiation positions for international treaty-making processes. The US Constitution states that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur” (Art. II, section 2). As a result, “it is Congress, not the executive branch or the President, that has the final say over U.S. environmental policy, both at home and abroad” (Paarlburg 1997: 149). By consequence, the US State Department, formally in charge of the negotiations, acts de facto under manifold restrictions from the legislator (Harris 2001: 19–22). The US Congress, in turn, is traditionally open for input from various lobby groupings. Both members of the House of Representatives and Senators defended very diverse interests regarding climate change during the period analysed in this chapter, most of which have to do with the short-term economic well-being of their constituencies. While party affiliation at times determined their stance on climate policies – with Republicans generally more hostile towards environmental legislation, and Democrats more inclined to take action on green issues – no clear-cut division between the different camps can be discerned (Harris 2001: 20). Quite a number of Democratic Senators from coal-­producing states tended to prioritize the economic concerns of their voters over measures to reduce GHG emissions in the 1990s. Further, big business arguably played an important part in shaping positions in this period (Harrison 2000: 92–93). After mid-term elections in 1994, the Clinton and Gore administration that had originally been positively inclined toward climate action saw itself confronted with a Congress dominated by Republicans – and sceptics among fellow Democrats – who ← 69 | 70 →believed that climate policies represented a threat to economic growth and “American jobs” (Bryner 2000: 124). This would have a considerable impact on the US negotiation position. Prior to the Berlin COP, this position was outlined in the October 1993 Climate Change Action Plan, which called for a stabilization of GHG emissions at 1990 levels by the year 2000, covering four gases (CO2, methane, N2O, HFC) (Clinton/Gore 1993: figure 2). This stance was further specified in the 1994 Climate Action Report: for the US, the negotiations were to determine “a new ‘aim’ that would provide specific guidance for international commitments beyond the year 2000” (Department of State 1994: 193). Further, the climate regime was to display a number of characteristics, including being flexible (which meant, in essence, cost-effective), comprehensive and equitable, i.e. “engaging all countries in the global effort while recognizing differences in national circumstances and capabilities” (Department of State 1994: 193). This position would evolve only slightly over the course of the negotiations.

Similar to the US, Japan, with 8.5% of the total emissions of all industrialized countries, did not at the time expect to be subject to many negative consequences of climate change (UNFCCC 1997e: 60). The country’s rationale for undertaking significant efforts to conserve energy as early as the 1960s had been based on economic rather than environmental considerations: both the Japanese government and its business community feared the increased economic competition from other Asian countries, and thought it necessary to embark on economic modernization towards greater energy efficiency (Schröder 2001: 40–41). The general attitude towards the issue of climate change in Japan can therefore be characterized as a mixture of “impact-skepticism” and “techno-optimism” (Fermann 1993: 292). This general stance on climate change was translated into a negotiation position through lengthy and conflict-ridden discussions between the Environmental Agency, responsible for environmental policies and more ambitious with regard to a reduction target, and the Ministry of International Trade and Industry (MITI), in charge of energy policies and protector of Japanese economic interests (Matsumura 2000: 11–16; Kameyama 2004: 72–73). In the early phase of the Kyoto Protocol negotiations, Japan would thus further defend the previously adopted position of promoting a stabilization of CO2 emissions at 1990 levels by 2000 (AGBM 1995b: 35). By contrast, it did not have a clear stance on the differentiation of commitments and potential efforts to be undertaken by developing countries. This position evolved considerably when the country embraced the issue of climate change to raise its foreign policy profile by proposing to host COP 3 (Kameyama 2004; Schröder 2001: 43; Matsumura 2000).

← 70 | 71 →For the other JUSSCANNZ members, the domestic circumstances were quite diverse. While Canada and Australia, with 3.3% and 2.1% of the total CO2 emissions of Annex I countries in 1990 respectively, had conditions regarding energy production and consumption that were similar to those of the US, New Zealand (0.2%), Norway (0.3%) and Switzerland (0.3% of total industrialized countries’ emissions in 1990) all possessed a fairly high share of renewable energy sources in their domestic energy production (UNFCCC 1997e: 60; Grubb et al. 1999: 33–34). Despite the resulting interest differences and diverging perceptions of the problem, the five countries advocated fairly similar positions on the issue of targets, calling for indicative emission reduction objectives (Andresen/Butenschon 2001: 339–340; ENB 1995c: 1, 2, 1995f: 2). Their stances on the issue of differentiation were less clear.

Although the heterogeneity of the G-77/China – regarding attitudes, preferences and negotiation positions – had further increased over the years, the group chose to continue to cooperate for a variety of reasons (Grubb et al. 1999: 35; Oberthür/Ott 1999: 24). first and foremost, a major unifying factor for this coalition was its members’ high vulnerability to the manifold facets of climatic alterations, intensified through an often striking incapacity to adequately react to these problems. Out of “a tradition of Third World solidarity”, they therefore decided to cooperate (Rajan 1997: 265). Moreover, many of the smaller countries of this group faced the challenge of lacking the administrative and diplomatic capacities to prepare and follow up on the climate negotiations by themselves (Gupta 2000). To gain more diplomatic weight, these countries depended thus on an alliance with resourceful parties such as India, China or Brazil. For the latter, being able to speak on behalf of such a large group of countries also implied a strategic advantage. finally, the vast majority of countries in this group shared the same vision regarding questions of equity and their right to develop (Rajan 1997). Despite these reasons for cooperation, differences within the G-77/China concerned, firstly, the cleavage between the emerging and the least developed countries. The key actors in this group were generally the largest countries, China and India. Altogether, they had a fairly limited share of global emissions at that time, which were, however, projected to rise steeply in the medium-term future (IPCC 1995a: 37; ENB 1995h: 2). Both countries were also beginning to be affected by climate change in the form of extreme weather events (droughts, floods). This explains why each of them had started to take actions to reduce their energy intensity (Oberthür/Ott 1999: 28). Their key positions in the regime discussions were clear: encouraging developed countries to adopt more adequate GHG reduction commitments under a follow-up agreement to the Convention, while refusing any obligations for themselves. ← 71 | 72 →Together with other major actors in this bloc (e.g. Mexico, Brazil), they thus advocated above all equity and development concerns (Grubb et al. 1999: 36). In spite of this point of convergence, least developed countries had more basic demands. Often already victims of climate change, a problem to which they had contributed little, they argued not only for developed countries to take up their responsibilities to mitigate climate change, but also requested help in their own fight against the consequences of climatic variations (IPCC 1995a: 37). Second, the G-77/China group was split along another line: the coalition of small island states (AOSIS), directly threatened by climate change and thus among those who advocated most urgently the swift adoption of ambitious measures, stood in stark opposition to the oil-producing countries (OPEC) (Grubb et al. 1999: 36). OPEC feared that strict carbon reduction measures would threaten their major source ofincome and therefore tried to slow talks down. Not surprisingly, the negotiation positions of the two groups prior to COP 1 could thus hardly have been more different. In the protocol proposal that AOSIS had presented in 1994, it had called for reductions by developed countries in the range of 20% by 2005 and opposed obligatory commitments for developing countries (INC 1994a). By contrast, OPEC, led by Saudi Arabia, basically advocated that climate science was too inconclusive to be discussing further measures at all (Grubb et al. 1999: 35–36).

Turning to a third group of players in the negotiations, the ex-Soviet Union and its former sphere of influence in Eastern Europe had undergone dramatic changes since the very first talks on climate change. The economies in this region had been extremely energy-intensive, and their collapse left countries like Russia or Ukraine with a much-improved record regarding GHG emissions. As a country with enormous fossil fuel reserves and with a largely indifferent attitude toward potential impacts of climate change – with some voices in the internal debate even arguing that global warming might have positive impacts on parts of the country – Russia was not necessarily in favour of negotiating a protocol with targets for itself. Although it first did not have a clear position on the new negotiation process (Oberthür/Ott 1999: 23), this would change when it realized that it could use its “hot air” (the emissions saved since 1990, when it had 17% of the global total CO2 emissions) and sell it to other countries (UNFCCC 1997e: 60). Both Russia and the Ukraine would then begin to join the JUSSCANNZ group in its call for targets coupled to greater flexibility (Grubb et al. 1999: 34–35). By contrast, countries from Eastern Europe that hoped to join the EU were gradually moving towards the Union’s stance on climate policies, which they would eventually have to take over as part of the latter’s environmental acquis (Oberthür/Ott: 23–24; Grubb et al. 1999: 34–35).

← 72 | 73 →The European Union: Actor Capacity, Negotiation Positions and their Foundations

The Union’s positions on the issue of climate change have to be understood against the background of its unique character as a multi-state entity. In 1995, Sweden, finland and Austria joined the EU, further augmenting the diversity of approaches to climate policies among its then 15 members (Skjaerseth 1994). While all member states, with the exception of the UK, were net energy importers at the time, not all of them shared the same feeling of responsibility towards the global environment (Grubb et al. 1999: 30). Countries of the North, including the three new member states, Denmark, the Netherlands, Germany, and the UK, were generally more concerned about climate change as an environmental problem, while the “cohesion countries” (Spain, Portugal, Greece, Ireland) showed greater interest in their economic development (Lacasta 2008: 5; Schreurs/Tiberghien 2007: 36–40). This divergence was intensified through the different emissions (and energy production) patterns across Europe: Germany and the UK had a fairly high share of the EU-15 total CO2 emissions (roughly 29% and 17% respectively in 1994), while Italy’s (13%) and, notably France’s (11%) emissions were comparatively low. Differences existed also between smaller countries of comparable population size, like, for instance, Belgium (3.8% in 1994, i.e. 11.6 t of CO2 per capita) and Portugal (1.5% in 1994, i.e. 4.5 t of CO2 per capita) (EEA 1997: 25–26).

Despite the resulting low degree of interest and preference homogeneity between the North and South of Europe at that time (Delreux 2008: 147–148; Skjaerseth 1994), the EU had since the late 1980s managed to establish a common approach which perceived climate change not only as an environmental, but also as an economic issue, framing it as an opportunity for modernization of economic structures in line with the precautionary principle and sustainable development considerations (Scheipers/Sicurelli 2007: 445–450; Baker 2006; Damro/Mendez 2003: 79). While expected climate change impacts in Europe may have played only a minor role in the definition of this approach, the general idea that the EU’s 24% share of the total CO2 emissions of industrialized countries in 1990 could be reduced, had a more notable impact (UNFCCC 1997e: 60). In addition to its adherence to the precautionary principle, the EU had also identified a “vested interest” in reducing its energy consumption to become more independent from its suppliers and enhance its competitiveness (Oberthür/Ott 1999: 15). finally, the EU’s belief in and support for multilateralism and international law played a role in determining its willingness of pursuing globally concerted solutions to the problem (Scheipers/Sicurelli 2007: 448).

← 73 | 74 →EU actor capacity is a function of the existence of legal competences for climate change activities, of decision-making and coordination procedures for such activities as well as of external representation arrangements, treaty objectives and tools.3 Throughout the studied period, the EU-15 functioned under the provisions of the Treaty of Maastricht and in accordance with established practice regarding internal coordination and external representation (Brambilla 2004: 160). In legal terms, the European Community was endowed with the legal personality that allowed it to enter into international treaties (Art. 281 TEC). The EC had then also ratified the UNFCCC in 1994 (Council 1994a) and was – through a specific regional economic integration organisation (REIO) clause inserted into the Convention (Art. 22 UNFCCC) – allowed to participate as a full member in the negotiations on the Kyoto Protocol. This implied that it enjoyed the same rights as the other parties regarding such important matters as tabling, speaking and voting. If the EC had to vote, it would do so on behalf of all its members, preventing them from exercising individual voting rights (and vice-versa) (Art. 18.2 UNFCCC). From the perspective of international law, its actor capacity was thus undisputed. From the perspective of European law, its foreign policy activity depended above all on the existence of substantial and procedural competences in primary law, permitting it to exercise its rights within the international climate regime. Substantially, European Community activity on climate change had its treaty basis in Art. 130r TEC, which was a slightly adapted version of the same article in the SEA (Maastricht): “Community policy on the environment shall contribute to the pursuit of the following objectives: – preserving, protecting and improving the quality of the environment, (…) promoting measures at international level to deal with regional or world-wide environmental problems.” Paragraph 4 of this Article underscored the fact that environmental protection was not an exclusive EC competence:

Within their respective spheres of competence, the Community and the Member States shall co-operate with third countries and with the competent international organizations. The arrangements for Community co-operation may be the subject of agreements between the Community and the third parties concerned, which shall be negotiated and concluded in accordance with Article 228. The previous sub-paragraph shall be without prejudice to Member States’ competence to negotiate in international bodies and to conclude international agreements.

The right of negotiating and concluding international treaties had therefore to be shared between the EC and its member states (Eeckhout ← 74 | 75 →2011: 141). This provision had particular consequences for the procedures that needed to be followed when the EU defined a negotiation position internally and when it represented that position externally. If Article 130s TEC generally granted the EC member states the right to negotiate international treaties, it left an opportunity for them to authorize the Commission to conduct these negotiations following the provisions of Article 228 TEC-Maastricht, which represented a codification of pre-1993 practice (Brambilla 2004: 160). The decision-making rule that was to be applied depended on the decision-making mode used for internal legislation (Art. 228.1, 2 TEC-Maastricht). In practice, the member states kept, in line with Art. 130r, para. 4 TEC-Maastricht, the right to negotiate to themselves throughout the period analysed in this chapter (Oberthür/Ott 1999: 66). The EU’s international negotiation position was defined by the Environment Council, deciding by unanimity (Delreux 2008: 151; Groenleer/van Schaik 2007: 985). Positions were prepared by member state representatives in the Ad Hoc Working Group on Climate Change created in the autumn of 1994, which was itself served by an Expert Group on Common and Coordinated Policies (Lescher 2000: 72; Oberthür/Ott 1999: 65–66). Input into the negotiation position came from the Commission, and, to a lesser extent, the European Parliament, which formally only had to be consulted on Commission proposals (Art. 228, para. 3 TEC-Maastricht; Pinholt 2004). Coordination during the process of position-building was assured by the Council Presidency. For instance, a major coordinating role in the definition of a numerical emissions reduction target was arguably played by the Dutch Presidency in the first half of 1997 (Kanie 2003). Negotiation positions resulting from this complex internal decision-/foreign policy-making process were regularly fairly rigid, leaving narrow margins for manoeuvre to the negotiators. Once such a position had been formulated, the Council Presidency, assisted by its predecessor and successor in the “EU Troika”, was charged with the task of internal coordination, taking the form of regular exchanges of information and consultation during COPs and, especially, at the very end of the negotiations at COP 3 (Interview EU representative 5). Moreover, the Troika on the whole would represent the position of the EU vis-à-vis third parties in the international negotiations (Brambilla 2004).4 All in all, the Union’s negotiators were credited with having managed to ensure the EU’s external coherence, making it appear as a unitary actor throughout most of the studied phase (Oberthür/Ott 1999: 17). Individual member states hardly took the floor unless when supporting EU positions (Delreux 2008: 143). All in all, the EU certainly possessed actor capacity throughout the period 1995 to 1997: on top of its ← 75 | 76 →overall stance, economic and political clout, it was able to act as a foreign policy player thanks to its legal competences, and the input and coordinating role of various presidencies. Yet, this capacity would vary over time, notably with regard to the coherence of its representation (Grubb et al. 1999: 112).

The EU’s ultimate aim in the climate negotiations between 1995 and 1997 was to reach a comprehensive global agreement with clearer mid-term emissions reductions commitments than those enshrined in the UNFCCC. Prior to COP 1, its position was not as unified and detailed as it would become during this negotiation process, in parallel with a successive consolidation of its internal climate regime. The Union’s overall approach to these negotiations was expressed in the Environment Council conclusions of December 1994, in which the Ministers reaffirmed their initial goal for the negotiations of reducing CO2 emissions to 1990 levels by 2000, but also invited the Commission to propose a set of “policies and measures (…) aimed at progressive limitations and reductions”, e.g., “by 2005 or 2010” (Council 1994b: 6–7). This position was further clarified in a submission of the German EU Presidency for the eleventh negotiation session of the INC, also in December 1994, which demanded the adoption of a protocol containing policies and measures as well as targets and timetables. In this paper, the EU called on other Annex I countries to commit themselves to “comparable efforts for the period after 2000” (UNFCCC 1994: 12–13). A quite indeterminate statement was made regarding the issue of responsibilities:

Industrialized countries need to take the lead in limiting emissions (…) The European Union reiterates its view that a reasonable balance between industrialized and developing countries commitments should be maintained, for instance in the form of further requirements for non-Annex I Parties on reporting and limitation of emission growth for certain more advanced developing countries (UNFCCC 1994: point 9, page 14).

A submission by the French Presidency, early in the AGBM process – referring also to the 1994 Council conclusions – underscored this stance and named as the Union’s ultimate objective the adoption of a “global protocol” (AGBM 1995b: 15–21).

The Negotiation Process and the EU’s influence Attempts

This section provides a focused narrative process trace of the negotiations as they unfolded from COP 1 in March/April 1995 until the adoption of the Kyoto Protocol at COP 3 in December 1997. It pays specific attention to the two embedded analytical units (the core norm of reduction obligations and the CBDR principle), each of which provides for a sub-plot of sorts in the narrative. A third embedded sub-plot deals with the ← 76 | 77 →EU’s foreign policy activities and their internal preparation. If relevant, its activities outside the UN arena are mentioned.5 Following the story, the Kyoto Protocol, which was not only the principal outcome of this negotiation process, but also set the framework for the negotiations that ensued, is briefly analysed. Moreover, patterns of the Union’s influence attempts are systematically extracted from the story to allow for a subsequent establishing of its influence.

The period between the summer of 1992 and spring 1995 had been marked by an absence of substantial advancements regarding the development of the climate regime. The report of the last INC session, which had explicitly focused on the review of Article 4.2 UNFCCC, had elegantly noted “fruitful and constructive but not fully conclusive discussions” on the adequacy of commitments (INC 1995: 50–51). This diplomatic language hardly concealed the fact that no agreement had been reached beyond the general notion that the commitments under the Framework Convention represented only a first step toward meeting the objective embodied in its Art. 2 (Oberthür 1994).

The precise shape of the outcome of the first conference of the parties, to be held in Berlin from 28 March to 7 April 1995, was therefore completely open. Only two proposals were on the table: an AOSIS draft protocol and a proposal from the German COP presidency (see Chapter 2). The German paper had called for a stabilization of emissions at 1990 levels by 2000, and for reduction efforts by Annex I countries following a targets and timetables approach after that (INC 1994b: 3–4). Further, it had emphasized:

“We should continue to work towards balanced commitments on the part of industrialized and developing countries, for example by means of further reporting commitments for non-Annex I Parties and commitments to limit the rise in emissions in the case of certain more advanced developing countries.”

This formulation would later become part of the EU’s position.

On these grounds, the discussions held at COP 1 in Berlin took a slow start. Essentially, the COP was to deal with four issues: reviewing both the adequacy of commitments under Art. 4.2 UNFCCC and the first national communications, deciding on the institutional as well as procedural frameworks of the climate regime (ENB 1995a: 2).

The latter two, purely organizational matters were dealt with during the opening plenary (ENB 1995b: 1). Two decisions are worthy of mention, as they would gain importance during the further negotiation process. first, no consensus was reached on the adoption of the rules of ← 77 | 78 →procedure, which implied that the draft rules of procedure would be applied during the COP. This, in turn, meant that decisions generally had to be taken by consensus (UNFCCC 1995d: 9).6 Further, the parties elected INC Chair Raul Estrada-Oyuela as chairman of the Committee of the Whole (COW), the body that was going to deal with the leftovers of the INC process (ENB 1995b: 2). The Argentinean would later also be elected Chair of the Ad Hoc Working Group on the Berlin Mandate (AGBM) and would remain in this function until the end of 1997.

During the first meeting of the COW, debates circled around the most important agenda item, the adequacy of commitments and the specific question of what outcome this COP should produce. The G-77/China highlighted the responsibilities of developed countries, stating that the negotiations should above all lead to the implementation of existing commitments (ENB 1995c: 1). AOSIS, supported by Norway, called for the adoption ofits own protocol proposal (ENB 1995c: 1). France, the EU Council Presidency at the time, expressed the Union’s preference for the conclusion of a protocol mandate and the creation of an ad-hoc working group to negotiate such a protocol (ENB 1995c: 1). It further reiterated the EU’s positions clarified at INC 11 (see Chapter 2). The US, after prior submissions in which it had clarified that “we do not come (…) with specific proposals” (UNFCCC 1995b: 76), made reference to the Clinton Climate Action Plan and highlighted the need to come to an agreement with broad international participation covering the period beyond the year 2000 (ENB 1995c: 2). Other countries from the JUSSCANNZ group were more explicit. Australia called for guidelines for the negotiation of a protocol that would include emission reduction efforts for all countries (ENB 1995c: 2). Similarly, New Zealand wanted a clear mandate for a protocol, legally binding targets and the inclusion of major developing countries in future emissions reduction efforts (ENB 1995c: 2). finally, a group of countries, including Russia and Saudi Arabia, argued that climate science was not yet fully reliable and that talks on a new agreement should be postponed until the second IPCC report, expected for late 1995 (ENB 1995c).

As the first week of the conference evolved, it was especially the position of this latter group that slowed talks down and would, ultimately, lead to a split of the G-77/China bloc. When it had become patently clear that growing tensions between the progressive stance of the AOSIS coalition and the advocates of a status quo, mostly OPEC, made it impossible for this bloc to define coherent positions, Chair Estrada interrupted the negotiations to give the group time to consider its options (ENB 1995d: 2). ← 78 | 79 →A smaller faction of 42 like-minded states, including AOSIS members, Argentina, South Korea, South Africa, China, and – as lead country – India, broke from the G-77/China coalition. This group managed to present a common approach, referred to as “green paper”, on 2 April (ENB 1995e: 2). In its “Proposed elements of a mandate for consultations on commitments in Article 4, paragraph 2 (a) and (b)”, it clearly outlined its stance on the issues of targets and timetables and inclusiveness. On the one hand, it called for a negotiation process to be based on the protocol proposal by AOSIS, whose “first priority” it was to set “specific and legally binding reduction targets (for example, Toronto Targets) within specific time-frames for emissions by Annex I Parties” (UNFCCC 1995c: points 7 (a) and (c)). On the other hand, it demanded that “the consultations will not introduce any new commitments whatsoever for developing country Parties” (UNFCCC 1995c: point 4, emphasis added). The proposal had been the fruit of discussions between the like-minded countries and environmental NGOs, who had purportedly helped to draft it (Oberthür/Ott 1999: 46).

Reactions to this paper from JUSSCANNZ as well as from the remaining G-77 members were quick and mostly skeptical (ENB 1995e: 2). By contrast, as the first major party to support the green group’s proposal, the EU stated that it was prepared to exclude discussions of developing country targets from the future negotiation process. This decision had been enabled by a move of the German hosts, whose previous proposals had timidly indicated the contrary, namely the expectation for some form of effort from developing countries (Oberthür/Ott 1999: 46; INC 1994b; Steffek 2005: 243). It was supported by all EU members, who partially accepted the rationale of the developing countries’ equity-based argumentation and certainly did not want to jeopardize the agreement on a mandate for a new negotiation process (Interviews EU, US representatives 5, 17). As JUSSCANNZ and OPEC continued to be more reluctant to granting such a wide-reaching guarantee to the developing countries, the negotiations focused very much on the question of developing country obligations in the final days, opposing a coalition of the majority of G-77/China, the EU and the NGOs to JUSSCANNZ, OPEC and business interest groups (Oberthür/Ott 1999: 46). In the end, given their members’ interest in reaching an agreement to start a new negotiation process, the US and other JUSSCANNZ members gave in to the pressure from the green coalition and the EU, anticipating that the issue of developing country participation could still be re-discussed at later stages in the negotiation process (Interview US representative 17). This anticipation was made on grounds that the wording of the original demand in the “green paper” of the 42 like-minded countries, which spoke of no “new commitments whatsoever” (UNFCCC 1995c: point 4), had been ← 79 | 80 →slightly modified: still maintaining that “no new commitments” should be introduced, the passage in the Berlin Mandate called for a reaffirmation of commitments in Article 4.1 and the duty “to continue to advance the implementation of these commitments in order to achieve sustainable development” (UNFCCC 1995e: 5; Interview US representative 17). Generally, the ultimately adopted “Berlin Mandate: Review of the adequacy of Article 4, paragraph 2 (a) and (b), of the Convention” began a negotiation “process to enable it to take appropriate action for the period beyond 2000” (UNFCCC 1995e: 4). This process was to be completed “as early as possible in 1997” (UNFCCC 1995e: 6). The Mandate called, as a priority, for the adoption of quantified emissions reduction targets for industrialized countries (UNFCCC 1995e: 5). Further concessions to the JUSSCANNZ/OPEC bloc included a reference to additional analysis and assessment activities as basis for the talks, and the open formulation that this process could lead to a protocol or “another legal instrument” (UNFCCC 1995e: 4; Oberthür/Ott 1999: 47). An ad hoc group of parties, the AGBM, was created to conduct talks (UNFCCC 1995e: 6).

At the first meeting of the AGBM (21–25 August 1995, Geneva), discussions focused on the necessity and scope of the analysis and assessment foreseen in the Berlin Mandate (AGBM 1995b: 9). The EU did not play an active role in this round of talks, arguing solely, and together with most of the developing countries, for faster proceedings (ENB 1995g: 2–3). No substantive progress was reached, leaving the authors of the Earth Negotiations Bulletin to observe that “the sense of urgency was not readily apparent” (1995g: 7).

Moving beyond analysis and assessment, AGBM 2 (30 October– 3 November 1995, Geneva) continued discussions on the basis of a list of issues identified by parties (AGBM 1995c) and other written proposals (AGBM 1995b). Debates were mostly restrained to reiterations of positions stated earlier. For instance, the US had already made it clear that it considered that “we are not – at this stage – negotiating”, but rather called for further talks on the science (AGBM 1995b: 82–83). As part of this exercise, US representatives presented findings indicating that the GHG emissions of the most advanced developing countries would exceed those of the industrialized world by the middle of the 21st century, making it necessary to come to a truly global solution to the problem of climate change (ENB 1995h: 2). The session was further marked by one substantial and partially new proposal, introduced on 30 October 1995 by the Spanish Presidency on behalf of the European Union. This first major EU influence attempt in the AGBM process was a fairly formal one: the outline of a structure for a protocol supplementing the UNFCCC (AGBM 1995d: 37–53). The proposal comprised six brief articles and three annexes. Its first article suggested the introduction of “policies and measures” (PMs) to be adopted ← 80 | 81 →by Annex I Parties. Three types of PMs were distinguished in Annexes A, B and C: measures common to all parties, high priority measures, and measures “for inclusion in national programmes as appropriate to national circumstances” (AGBM 1995d: 42). The proposal further included the EU’s previous position on quantified reduction objectives “to be set within specific timeframes” (AGBM 1995d: 39). It reflected the EU’s preferred “command and control” approach, with the Spanish paper even stating that “The EU has always been committed to a combined approach” including PMs and quantified targets (AGBM 1995d: 38). The submission did not, however, contain specific proposals on targets or numbers (Lescher 2000: 81). Regarding the issue of responsibilities, it reiterated the second line of the respective Berlin Mandate passage: the EU sought provisions on “continuing to advance the implementation of existing commitments by all Parties” (AGBM 1995d: 40). In first reactions, OPEC and China called such a proposal “premature”, and no substantial advances were then also made at the session (ENB 1995h: 8).

In the report on the second session, delegates expressed hope that the next meeting – AGBM 3 (5–8 March 1996, Geneva) – would “present an initial opportunity [for] narrowing the range of options” (AGBM 1995e: point 34), but the session did not live up to this expectation. Following the more in-depth discussion of the EU’s protocol proposal, which had partially set the agenda for these talks, it did, however, begin to see a conflict emerge between the EU, supported by Japan, and several other parties (US, OPEC): while Europeans and Japanese advocated PMs linked to quantified emissions targets, the latter were opposed to either the PMs (like the US) or both targets and PMs (like the OPEC members) (AGBM 1996b: points 41, 42). On the issue of targets, parties began to state more substantial proposals: apart from AOSIS’ reintroduction of its protocol draft, Germany, as an individual party and outside the EU context, suggested an overall 10% reduction of CO2 emissions by 2005 and of 15–20% by 2010 (compared to 1990 levels) (ENB 1996a: 6). Without mentioning any clear commitments, the Italian EU Presidency, referring to the second IPCC report adopted in mid-December 1995, indicated that a GHG concentration level of 550 ppm should guide the setting of a target (ENB 1996a: 5). Australia, the US and Canada supported the idea of targets, linked to flexibility, but did not table any numbers (ENB 1996a: 6). Differences surfaced on the more technical questions of whether to adopt a multi-gas, gas-by-gas or comprehensive approach (AGBM 1996b: point 44(e)). All in all, parties slowly entered into a more substance-oriented negotiation mode by clarifying their positions with regard to the Berlin Mandate.

AGBM 4 and the second conference of the parties coincided (8–19 July 1996, Geneva). Regarding the two issues of targets and inclusiveness of the regime, talks were mostly held under the AGBM track. The main ← 81 | 82 →foci of the debates were quantified emissions targets, and, linked to this, policies and measures. Positions, as far as expressed, had been gathered in several compilations of proposals (AGBM 1996a and c). They testified to the marked differences in approach between the EU, supported by most of the developing countries, favouring policies and measures and opposing differentiation on the one hand, and the US and most of JUSSCANNZ, demanding more flexibility, on the other hand (AGBM 1996a). The Japanese position had now moved to occupy the ground somewhere in between, advocating differentiation and flexibility, but equally seeing possibilities to combine policies and measures with targets (AGBM 1996c: 2). Despite these differences, the EU repeatedly pushed for an acceleration of the negotiations, arguing for the preparation of a draft protocol as soon as AGBM 6 (ENB 1996b: 7).

The high-level segment of COP 2 brought new impetus to the debates (Grubb et al. 1999: 54). The discussion of the Second IPCC Assessment Report was taken as an opportunity by the US to considerably clarify its position. In a speech on 17 July 1996, US Under-Secretary of State for Democracy and Global Affairs Timothy Wirth stated that – on the backdrop of the latest science – “we must do better”, which is why “the US recommends that future negotiations focus on an agreement that sets a realistic, verifiable and binding medium-term emissions target”, to be achieved through flexibility mechanisms such as “reliable activities implemented jointly, and trading mechanisms around the world” (Audio 1996, 17 July 1996, emphasis added). According to Wirth, PMs did not fulfil the criteria of being “realistic” or “achievable”. Although it did not specify any reduction target, this statement opened up new possibilities for collaboration, as it “was in fact the first time that any major Party had specifically called for quantified commitments adopted under the negotiations to be made binding” (Grubb et al. 1999: 54). With a simple declaration, the US had thus unexpectedly joined the group of parties (above all AOSIS, the EU) who acknowledged the urgency with which wide-­reaching measures against climate change had to be taken. At the same time, it had also positioned itself clearly vis-à-vis those who wanted to slow negotiations down, especially OPEC, but also Russia (ENB 1996b: 4). Yet, Wirth’s forceful statement in favour of the concept of flexibility, introducing the idea of emissions trading, also effectively coupled the adoption of legally binding targets – the core of the whole regime and main purpose of the Berlin Mandate – to flexible trading mechanisms. This stance exacerbated the differences between the advocates of flexibility from the JUSSCANNZ group and the EU, supported by many developing countries (Jordan/Rayner 2010: 62).

The EU greeted the US change in position and, together with the majority of the G-77/China, took the Americans up on their promise to ← 82 | 83 →accelerate the negotiations (ENB 1996b: 10). In the final days of the COP, a “Friends of the Chair” working group drafted a non-binding declaration, which the majority of parties adopted in plenary against the opposition of 16 parties, including Russia and Saudi Arabia (ENB 1996b: 10, 13). The Geneva Declaration reiterated the Berlin Mandate, endorsed the SAR and reminded Annex I countries “to limit and reduce emissions” faster (UNFCCC 1996: point 2). Further, the Ministers “instruct[ed] their representatives to accelerate negotiations on the text of a legally-binding protocol or another legal instrument” including “policies and measures” and on “quantified legally-binding objectives for emissions limitations (…) within specified time-frames” (UNFCCC 1996: point 8). The latter emphasis on legally binding targets and timetables marked the true novelty for the AGBM talks.

The negotiations in the Working Group had to wait until their sixth session to see some form of acceleration. Until then, talks would stagnate in the positioning phase. For AGBM 5 (9–13 December 1996, Geneva), the UNFCCC secretariat had prepared a synthesis of proposals by the parties as a basis for further discussions (AGBM 1996e). This document and the debates at this session demonstrated to what extent the talks had become more complex after the US had opened up to the idea of legally binding reduction targets. Setting such targets required the prior settling of numerous other issues regarding inter alia gas coverage, level and timing, distribution of commitments and degrees of flexibility (ENB 1996c: 4). Following an invitation from the Chair to submit new proposals, the EU made its second major influence attempt in these negotiations when it submitted an “elaboration” of its draft protocol structure (AGBM 1996d: 19–24). The proposal contained different types of commitments and introduced a new category of parties, “Annex X parties”, which were to adopt quantified emission targets. The submission suggested that Annex X should include not only developed parties, but also other, not further specified ones. This indeterminacy caused some confusion in the talks, and the EU had to defend itself against criticism from the G-77/China bloc by clarifying that Annex X covered Annex I and new OECD members (ENB 1996c: 4).7 After its strong position-taking at COP 2, the US also made two written submissions in 1996. In its “Elements of a new legal instrument” paper of 21 October, it called for “a shift away from unrealistic, near-term targets” to “legally-binding, medium-term targets that are both realistic and achievable” (AGBM 1996d: 50–54, 51). In its more extensive “non-paper” of December, it underscored the need for a longer-term goal, and “for all nations, including developing nations, to take actions to limit greenhouse gas emissions” (AGBM 1996a: 26–37, 26). ← 83 | 84 →On the issue of targets, it made several proposals regarding, above all, a multi-year instead of a single-year target, banking and borrowing of emissions, a flat-rate approach for all Annex I countries and comprehensive gas coverage. Further, the paper contained elaborations on the flexibility mechanisms championed by the US (emissions trading, joint implementation). During the debates at AGBM 5, the US “hard commitments to soft targets” and long-term approach came into apparent conflict with the EU’s, AOSIS and Norway’s preferences for legally binding early Annex I actions (ENB 1996c: 4). On differentiation, however, the US and the EU were united in their argument for a flat-rate approach – against other JUSSCANNZ members (Canada, Japan, Australia and Russia), who supported different targets for Annex I countries (ENB 1996c: 4). finally, regarding flexibility, which had become inextricably linked to the targets, both JUSSCANNZ and the EU supported joint implementation. The Union was, however, much more cautious about emissions trading, which it did not believe to be able to replace PMs (ENB 1996c: 5). The session concluded with parties authorizing the Chair to provide a compilation of these proposals (AGBM 1996g: 8).

Already for AGBM 5, many EU member states, including the UK, Germany and the Netherlands, would have liked to see the European Union produce a concrete proposal for reduction targets (Kanie 2003: 349–350). Under the impression of the SAR, the Union had, in fact, geared up its efforts, calling for global average temperatures not to exceed “2 degrees above pre-industrial levels” (Council 1996: para. 3). This, in turn, “should guide global limitation and reduction efforts” (Council 1996: para. 6). The idea of proposing concrete emission reduction targets that would meet this overarching objective had been tabled under the Italian Presidency in the first half of 1996, and discussed in depth under the Irish Presidency in the second semester of that year (Kanie 2003: 349–350). Prior to AGBM 5, the Environment Ministers had, however, been unable to define a common position due to difficulties related to sharing the burden of emissions reductions (Kanie 2003: 350; Agence Europe 1996). The incoming Dutch Presidency of early 1997 made the definition of such a position one of its key priorities. Consequently, the topic was taken up again in discussions of the Council Ad Hoc Working Group on Climate Change in February 1997, and earlier proposals of a 15% reduction by 2010 were re-discussed. In these debates, agreement on burden-sharing among the member states could, however, only be reached for a 9.2% reduction (Agence Europe 1997a; Vogler 2008). Nonetheless, on 3 March – the first day of AGBM 6 – the Environment Council took the decision that the EU would propose to reduce the emissions of three gases (CO2, N2O, CH4) by 15% until 2010 (compared to 1990 levels) and that the burden-sharing of roughly “10% would be enough until Kyoto”, as ← 84 | 85 →the remaining 5% could be distributed in accordance with the outcome of the negotiations at COP 3 (Council 1997; Agence Europe 1997a; for an in-depth discussion: Kanie 2003; Jordan/Rayner 2010: 63). This proposal would become the EU’s third major influence attempt during this negotiation process.

Discussions at the sixth AGBM session (3–7 March 1997, Bonn) were thus continued on the basis not only of a framework compilation of positions, but also of the updated EU position and a comprehensive US submission (AGBM 1997a, b, c). The reception of the Union’s target proposal on the second day of the meeting was decidedly mixed. Some parties, mostly from the G-77/China bloc, praised the ambitious numbers the EU had put forward, while others, notably JUSSCANNZ members like the US or Australia, criticized the insufficient burden-sharing agreement, calling the EU’s proposal “unrealistic” (ENB 1997a: 1). The US had itself, in its submission of 17 January 1997, abstained from any kind of numerical specification, but had provided a quite detailed “Draft Protocol Framework” instead (AGBM 1997b: 78–87). In this document, it introduced the idea of “emissions budgets”, underscored its position on flexibility, and provided for the voluntary inclusion of new countries into Annex I, while demanding measures for the “advancement of the implementation of Article 4.1” (obligations) for all countries (AGBM 1997b: 79, 82). Further, it suggested that the “Parties shall adopt, by [2005], binding provisions so that all Parties have quantitative greenhouse gas emissions obligations and so that there is a mechanism for automatic application of progressive greenhouse gas emissions obligations to Parties, based upon agreed criteria” (AGBM 1997b: 87). Similar proposals with regard to flexibility and non-Annex I commitments were introduced by Australia and New Zealand, inter alia in a joint submission with the US (AGBM 1997b: 65; ENB 1997c). The fact that both the EU and the US had now made fairly detailed and different proposals led to an intensified transatlantic polarization of the debates (ENB 1997c: 8–10). While most developing countries supported the EU approach, JUSSCANNZ was not completely behind the US position. Notable differences existed regarding the issue of differentiation among developed countries. Contrary to the US, Australia and Japan were strongly in favour of differentiating between Annex I parties. In a roundtable discussion on this issue, a Japanese representative argued that differentiation was an integral part of the Berlin Mandate, which had emphasized the “different starting points” of countries (ENB 1997b: 2). He further explained that three options existed for differentiation: a formula-based approach working with one specific indicator (e.g. per capita emissions), a selective approach (based on GDP) or a purely political negotiation approach (ENB 1997b: 2). During the same discussion, Australia used the EU’s burden-sharing approach as example ← 85 | 86 →for differentiation (ENB 1997b: 2). At the end of the session, all main proposals – certainly regarding the two topics of interest here – with the exception of concrete (numerical) positioning on targets by key industrialized countries, were thus on the table for the remainder of the negotiations. For the following meeting, the UNFCCC secretariat was asked to prepare a negotiating text, following the “six-month deadline”, which stipulated that half a year before COP 3 no fundamentally new ideas should be injected into the debates (Art. 17.2 UNFCCC; ENB 1997c: 1).

The fact that the end of the proposal phase was drawing to a close might have led several parties to clarify their stances also outside the UN arena. One forum for this was the G-7+1. At a summit held in Denver on 20–22 June 1997, the four EU members (France, Germany, Italy, the UK) advocated the Union’s 15% reduction target, but only obtained a weak statement in favour of an agreement with some form of a target for 2010 (G-8 1997: point 16). Remarkably, given the clarity of the Berlin Mandate on this issue, the richest countries of the world also declared: “Action by developed countries alone will not be sufficient to meet this goal. Developing countries must also take measurable steps, recognizing that their obligations will increase as their economies grow” (G-8 1997: point 17). Some days later, at the UNGA Special Session (23–27 June), which was to assess the implementation of the 1992 Earth Summit decisions, several developing countries demonstrated their commitment to concluding a strong agreement in Kyoto, while US President Clinton explained his incapacity to exercise leadership given the continued resistance from Congress (ENB 1997d).

Talks at AGBM 7 (28 July–7 August 1997, Bonn) were, for the first time, held on the basis of a 128-page synthesis of proposals that had been prepared by the Chair in late April 1997. The “negotiating text” presented alternative suggestions – in legal language – on all major issues, but no longer explicitly attributed specific submissions to particular countries (AGBM 1997d; Depledge 2005: 166). In several submissions prior to the negotiation session, the EU had given extensive, in-depth input into the negotiation process, commenting on the Chair’s proposal and completing its own position (e.g. AGBM 1997f: 35–51; 1997q). It had also further clarified its emissions reduction proposal through the definition of an intermediate target of –7.5% by 2005 (compared to 1990 levels) in support of its overarching aim of reducing emissions to a level that would allow limiting global temperature increase to 2° Celsius (AGBM 1997g: 6). By contrast, none of the large countries of the JUSSCANNZ coalition had made a specific numerical proposal yet, with the US explaining that “it was not possible to decide what kind of numerical target might be undertaken without knowing what constraints would be imposed on such ← 86 | 87 →a target” (ENB 1997e: 2). Negotiations at AGBM 7 were conducted in four “non-groups”: in addition to the ones previously established on commitments under Art. 4.1 as well as on institutions and on mechanisms, two new groups dealt with PMs and targets and timetables (ENB 1997e). Regarding the issue of targets, the “negotiating text by the chairman” listed 16 (!) alternative formulations (AGBM 1997d). During the debates on this topic, the non-group on quantified emissions limitation and reduction objectives (QELROs) took up the issues of a budget or multiple-year approach and of gas coverage. While the former remained unresolved, the comprehensive US proposal of covering six gases became generally accepted (ENB 1997f). Moreover, this group discussed – without reaching consensus – differentiation among Annex I countries (ENB 1997f). On the key conflict opposing supporters of hard targets and PMs (mainly the EU) to advocates of flexibility and soft targets (the US, Australia, New Zealand), the first possibilities for compromise emerged. It became evident that the EU was prepared to accept flexibility demands, notably trading, if adequate reduction commitments were made by all industrialized parties. In return, the US, despite its opposition to differentiation, demonstrated that it was prepared to accept the EU’s internal burden-sharing if trading would become a prominent feature of the final agreement (ENB 1997g: 12–13). As for the issue of responsibilities, the non-group on Article 4.1 (“further commitments”) originally discussed on the basis of two texts: a negotiating text and a text by the group’s Chair (ENB 1997g: 5). The latter text contained two alternatives regarding the inclusiveness of the regime. One supported by the developing countries and the EU stressed the CBDR principle and, in line with the Berlin Mandate, refused the introduction of commitments for non-Annex I parties. The other stated that such parties should take measures contingent upon the implementation of Annex I country commitments, finance and technology transfer (ENB 1997g: 5). In a previous proposal, the EU had recognized that “in the long term emissions of greenhouse gases from countries not included in Annex I must also be regulated if the long term objective of the Convention is to be met (…) this should be considered as one element in the first review of the Protocol” (AGBM 1997g: 14). This soft wording contrasted with the approach inherent in the US framework protocol proposal of “automatic application of progressive (…) obligations” to all parties (AGBM 1997b: 87). This latter proposal had already been absent from the Chair’s negotiating text and was effectively discarded by Estrada during the talks as not falling under the Berlin Mandate (ENB 1997g: 13; Oberthür/Ott 1999: 229). The EU’s formulation was equally not considered further. While parties had thus managed to develop their positions during this session, reflected in the reports by the chairs of the informal groups (AGBM 1997h; Depledge 2005: 166), no agreement on ← 87 | 88 →any of the issues under debate could be reached. Recognising the importance of targets to the final agreement, the Chair demanded that “two Parties’ target definition” (i.e. those of the US and Japan) should be unveiled (ENB 1997g: 3).

Before the final AGBM and COP, the pressure on the JUSSCANNZ members to advance clear positions on the reduction targets had thus become intense. Especially the host country of COP 3 was expected to demonstrate its willingness to reach an agreement: on 7 October 1997, after lengthy internal negotiations, Japan was then also first to yield to the pressure when it presented a 5% emissions reduction proposal over the period 2008–2012 for three gases (CO2, N2O and CH4) (Matsumura 2000: 11–15; Schröder 2001: 44–45). The proposal represented a compromise between the Ministry of International Trade and Industry, in favour of stabilization, the Environment Agency of Japan, advocating effective mitigation policies and thus higher targets, and the Foreign Ministry, which was above all concerned with Japan’s image as a global player (Kameyama 2004: 72–73). It can be interpreted as seeking middle ground between the EU and the US (Schröder 2001: 46; Matsumura 2000: 14). In the US, the debate about an international climate agreement had, in the meantime, become very complex. Whereas the Republican-dominated Congress remained hostile towards environmental regulation, public opinion did not display great concern about climate change (Harrison 2000: 104–105). Against this backdrop, the Senate had, a few days before AGBM 7, adopted a brief resolution sponsored by Senators Byrd and Hagel. Adopted by a 95-0 vote, it sent a very clear message to the US negotiating team: the Senate would ratify a newly negotiated international climate treaty only “if the protocol or other agreement also mandates new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period” (Senate 1997: point 1(A)). Under these circumstances, the Clinton administration had not yet decided on a target proposal before AGBM 8.

The EU used the period prior to AGBM 8 to reaffirm and further refine its negotiation position. On 1 October 1997, the Commission published “The EU Approach for Kyoto”, which explained the logic behind the Union’s internal strategy for emissions reductions and its international negotiation position (European Commission 1997). In this document, the Commission bluntly stated what the EU demanded from other parties in the global talks. firstly, “all industrialized countries must be committed to comparable action”, i.e. GHG reductions of 15% by 2010 (European Commission 1997: 18). Secondly, “it is important (…) that the more developed among the developing countries gradually assume bigger responsibilities when their level of development justifies it. There is no room for free riders on this issue” (European Commission 1997: 19). With this ← 88 | 89 →latter position, the Commission signalled, albeit ambiguously, that the EU was not going to demand any (binding) commitments from the developing countries in an agreement that would result from the Berlin Mandate negotiation process. After this process, however, the situation needed to be reassessed (Interview EU representative 5).

At the beginning of AGBM 8 (20–31 October 1997, Bonn), talks were held on recent proposals, some of which had found their way into the new negotiating text (AGBM 1997i). On the issue of targets, the G-77/China had been able to reach a compromise:8 it called for 7.5% reductions by 2005, 15% by 2010 and 35% by 2020 (compared to 1990 levels) for the same three gases as in the EU and Japanese proposals, and for a phasing out of other GHG gases, including the three additional ones proposed by the US (ENB 1997h: 1). Despite this slight difference with the EU’s approach, the numerically largest negotiation bloc thus backed the Union’s proposal, with many of its members giving up support for the more ambitious AOSIS proposal, and adding an additional target demand for the long term. The G-77/China’s proposal was further strongly opposed to the notion of flexible mechanisms. Only hours after this proposal had been publicized, US President Clinton unveiled the last missing pieces in the US negotiation position. In a speech held at the National Geographic Society in Washington, he suggested stabilizing the emissions of six gases (the three also mentioned in all other proposals plus HFCs, PFCs, and SF6) at 1990 levels during the budget period 2008–2012, and to reduce them over the period 2013 to 2018 (National Geographic Society 1997). Further elements of this proposal concerned the – at this point not surprising – ­introduction of flexibility mechanisms and, importantly, the meaningful participation of key developing nations, a demand that was de facto imposed on the US negotiators by the Byrd-Hagel resolution (National Geographic Society 1997). With regard to this latter point, the US would express its disappointment at AGBM 8 with the fact that the proposal by the Chair did not mention commitments by all parties in the medium term, arguing that the Kyoto agreement should constitute a starting point for also thinking about developing countries commitments (ENB 1997h: 2). With its lack of ambition regarding targets, the US proposal was, reportedly, met with disappointment and scepticism by other negotiating blocs such as AOSIS as well as by the environmental NGO community (ENB 1997i: 2). In the plenary of 27 October, the EU criticized the US proposal as even less ambitious than the Japanese, and altogether insufficient “to produce the outcome the world needs” (ENB 1997j: 2). With all elements now on the table, AGBM 8 concluded the negotiations regarding some technical ← 89 | 90 →points, while leaving the major political issues undecided, as parties remained unwilling to consider compromise formulas on issues like emissions trading, gas coverage or PMs, until an agreement on the targets was crafted. Chair Estrada suggested that a future negotiation text should best re-state all ideas that were on the table, but leave the numbers out for separate consideration (Audio 1997a, 29 Oct. 1997), and follow the approach that “nothing is agreed until everything is” (ENB 1997k: 6). He would prepare a new text that would be discussed at a reconvened AGBM 8 session the day before the Kyoto conference was to start (ENB 1997k: 11).

The month of November 1997 marked the final opportunity for parties to informally explore options for agreement before the COP. Intensive bilateral talks were conducted, inter alia, between the US and the EU, Japan and the EU, and the US and Japan (ENB 1997b: 16–17, Interviews EU, US representatives 5, 17). On 8 and 9 November, Japan invited ministers from a selected number of players from JUSSCANNZ (among others the US, Canada, Australia, New Zealand), from the EU (especially the UK, Germany, the Netherlands, Luxembourg, France, Italy, the European Commission), and from the G-77/China (inter alia China, India, Brazil, Argentina, Indonesia, Samoa, Saudi Arabia) as well as Russia and Chair Estrada for a final preparatory meeting (Oberthür/Ott 1999: 78). Although positions were further clarified, no major disagreements were solved at this meeting.

The resumed AGBM 8 of 30 November 1997 was as inconclusive as its predecessors (Oberthür/Ott 1999: 80; ENB 1997l). In the absence of clear results, almost all decisions needed to be taken at COP 3 (1–11 December 1997, Kyoto). Not many party proposals were actually off the negotiation table: the changes made in the Chairman’s “revised text under negotiation” were predominantly linguistic and stylistic rather than content-specific, reducing the text to a manageable 32 pages, which still contained many brackets, however (UNFCCC 1997a). It thus reflected the entrenched positions at the outset of the conference. The analysis that follows focuses on tracing the evolution of the negotiations on the key topics analysed in this work. Concerning the issue of targets, four problems still had to be resolved: defining the assigned amounts of emissions reductions, deciding on a differentiation between parties, adopting a commitment period or one target year, and establishing the gas coverage.Article 3 of the revised negotiation text listed the options (UNFCCC 1997a). Its paragraph 1 mentioned three alternatives with regard to the question of emissions budgets/commitment periods (alternatives A and B) or target years (alternative C, suggesting 2005, 2010 and 2020), joint or individual fulfilment (with only alternative A allowing for both), and two alternatives regarding the number of gases, listed in Annex A (three vs. six). The Article did not specify any reduction targets. Paragraph 2 took up the issue of differentiation of ← 90 | 91 →emission reduction commitments by industrialized countries, suggesting either a flat-rate approach (preferred by the US and the EU) or an indicator-­based approach following a complex procedure listed in draft Annex B (Japan, other JUSSCANNZ members). Further, the bracketed paragraphs 7 and 8 suggested two consecutive emissions budget procedures. The proposed alternatives on all issues reflected above all the US, Japanese and EU proposals. On the issue of responsibilities, Article 10 of the draft, reportedly inserted by Chair Estrada himself, allowed for emission reduction measures by non-Annex I countries on a voluntary basis (Oberthür/Ott 1999: 229–230). At the same time, Article 12 of the draft agreement reaffirmed and re-stated “existing commitments in Article 4.1 of the Convention”, “without introducing any new commitments for Parties not included in Annex I”, reflecting formulas used in the Berlin Mandate (UNFCCC 1997a).

To conduct negotiations on these items, the COP split into numerous groups (inter alia on QELROs, on gas coverage and differentiation, on financial issues, on institutions and on commitments under Art. 4.1) during the first week. Regarding targets, the first major change of position at the conference came, to everyone’s surprise, from the US. Its negotiators suddenly signalled openness for differentiation when calling for a working group on this issue to allow for the discussion of a proposal by Russia for a “big bubble” of all industrialized countries, inspired by the EU’s burden-sharing construct (ENB 1997m: 1). In the first meeting of the negotiating group on QELROs on 2 December, chaired by Estrada himself, discussions were held on this issue (ENB 1997n: 1). Canada proposed, for example, to take on individual GHG reduction targets of 3% and 5% by 2010 and 2015 respectively, both referring to mid-term points of budget periods (ENB 1997n: 1). Further, the idea of a 0–5% range of reductions, with differentiation between Annex I countries, inspired by the Japanese proposal, was taken up (ENB 1997n: 2). In press conferences, the EU’s negotiators indicated that a consensus on the issue of five-year budget periods was emerging, but that they were, at this stage, not prepared to accept a 0–5% differentiation range, as such a decision would require ministerial approval (ENB 1997n: 2). In the following days, various proposals with regard to targets were tabled, inter alia on the differentiation of Annex I countries into three groups (ENB 1997o: 2). To bring about a decision, Chair Estrada took the initiative to propose reduction objectives of 10% for the EU, 5% for the US and 2.5% for Japan (Schröder 2001: 79). For the EU, such a proposal seemed unacceptable, as it violated its continued preference for a flat-rate approach. In a first reaction, its negotiators therefore also defended again the idea of an overarching target and its own “bubble” approach, before suggesting that other countries try the same, e.g. the US under the North American Free Trade Agreement (NAFTA) (ENB 1997o: 2). Despite these exchanges, ← 91 | 92 →no major advancements were made on draft Article 3 by the end of the first week of the COP. As far as responsibilities were concerned, the only serious proposal to change draft articles 10 and 12 in the Chair’s negotiating text during COP 3 was made by New Zealand in a plenary session of 5 December. The delegation called for “progressive engagement” of major developing countries in the form of limits of emission growth after 2014 (ENB 1997p: 2). This proposal was strongly supported by the US, and more moderately by Japan and the EU, who had made similar proposals before AGBM 7 and in the Commission’s “The EU Approach for Kyoto” communication (ENB 1997p). It was met with fierce resistance from the G-77, notably India, China, and Brazil, whose delegate stated that the developed country attitude (“If you don’t deliver, we won’t deliver”) would not be accepted. Rather, he made his group’s stance quite clear: “until you deliver, we don’t discuss” (ENB 1997p: 2). As a reaction, the EU made reference to the Berlin Mandate, which precluded any further commitments by non-Annex I countries, but also called for a review process to talk about these commitments after Kyoto (ENB 1997p: 2). The developing countries’ unequivocal stance on this issue, however, made a change to the draft negotiation text impossible (Schröder 2001: 87–88; Interviews EU, US representatives 5, 17). The first week of negotiations ended with a Committee of the Whole meeting during which some pieces of text agreed in the various working groups were discussed: while several technical and institutional issues had been settled, no consensus was reached on most of draft Articles 3 and 10 (ENB 1997q: 1). Further hotly contested issues included emissions trading and the concept of sinks. This state of affairs was reflected in the Chair’s heavily bracketed non-paper, circulated on Sunday, 7 December, before the start of the ministerial segment of the COP (UNFCCC 1997b). In this version of the negotiating text, Article 3 on commitments had become even more complex, whereas Articles 10 and 12 had remained – substantially – unchanged.

All came down to the second week of the COP. The arrival of US Vice-President Al Gore on 8 December 1997 arguably “marked the beginning of the final phase of the conference” (Oberthür/Ott 1999: 85). In his highly mediatised speech on that day, Gore not only reiterated US positions (legally binding targets, flexibility mechanisms, participation of developing countries), but also instructed his negotiators to show more flexibility in the talks, thus effectively clearing the way for final deal-making (ENB 1997r: 1). Such bargaining would also be necessary: prior to Gore’s intervention, the EU had already underscored its position against differentiation and hazardous flexibility, arguing again for PMs. Further, in an effort to ensure the support of G-77/China, it had called debates about developing countries commitments at this stage unhelpful and not in line with the Berlin Mandate (ENB 1997r: 1).

← 92 | 93 →In the COW that followed the high-level segment, negotiations concentrated on the Chair’s non-paper, with countries remaining unwilling to reveal new offers regarding QELROs, on which all other items clearly hinged (ENB 1997r: 2). Aware of the importance of new numbers, the Chair set a deadline for 3 o’clock in the afternoon of 9 December to have countries state their positions on quantified reduction targets (ENB 1997r: 2). In the meantime, active “backroom diplomacy” was conducted, involving bilateral and trilateral talks between the three key delegations – the US, COP host Japan, and the EU (Schröder 2001: 25; Matsumura 2000: 18–20). In these talks, the Union had increasingly become represented by the UK’s Deputy Prime Minister Prescott, who formed, together with the Netherlands and the Council Presidency from Luxembourg, the EU Troika (Oberthür/Ott 1999: 86; Delreux 2008: 147). In bilateral exchanges between the US and Japan, the former began, for the first time, to evoke the idea of “symbolic reductions”, showing preparedness to make a “small percentage cut” (Schröder 2001: 79). The results of these talks found their way into a revised draft by the Chair, presented late on 9 December, for the first time including numbers agreed among the “big three” parties (UNFCCC 1997c; ENB 1997s). Article 3.1 of the new negotiation text contained the idea of an overall reduction target for all Annex I countries of 5% for three gases (CO2, CH4, N2O) between 2006 and 2010 (compared to 1990 levels), and differentiation between them (UNFCCC 1997c: 3). Targets for the other three gases that the US had wanted to include were to be decided at COP 4 (Art. 3.3, UNFCCC 1997c: 3). Under this proposal, the EU would have to reduce its emissions by 8%, the US by 5% and Japan by 4.5% (Annex A, UNFCCC 1997c: 24). Article 10 on voluntary developing country commitments had remained unchanged. The new text represented the basis for discussions until early in the morning of 10 December when Chair Estrada interrupted the talks by observing that draft Article 3 was in need of further informal and then formal consultations on the final day, concerning mainly the issues of each party’s individual commitment to the 5% overall Annex I target, the number of gases covered and the timing of the commitment period (ENB 1997s: 2).

Until the final COW, scheduled for the evening of 10 December, important efforts were made informally to come to an agreement among the key players on these issues. The diplomatic operations carried out in the background involved the highest political echelons, with telephone conversations between the Japanese Prime Minister Hashimoto and US Vice-President Gore and among leaders such as US President Clinton, UK Prime Minister Blair and the German Chancellor Kohl (Oberthür/Ott 1999: 88; Matsumura 2000: 20). While it is close to impossible to reconstruct these private exchanges, judging by their outcome, they must have involved further preparedness for compromise on the part of ← 93 | 94 →the US, Japan and the EU regarding the central issue of the amount of quantified emissions reductions. The negotiation skills of Chair Estrada were then, according to observers, especially crucial for striking the final balance between them (Interview EU representative 5; Schröder 2001: 79; Andresen/Agrawala 2002: 48). From the EU side, it was the British Deputy Prime Minister who communicated the Union’s preparedness to deviate from the flat-rate approach and negotiate an outcome in which the EU and the US met in the middle of the spectrum delimited by their respective positions. The EU was to accept an 8% emissions reductions target by 2010, while the US settled for –7%. Japan, as the host, could not afford to adopt a much lower target and thus ended up with a more ambitious aim than it had originally envisaged (–6%) (Schröder 2001: 80). Other Annex I countries, like Canada or Australia, basically made voluntary pledges unrelated to the outcome of the talks among the trio EU-US-Japan. Altogether, these pledges added up to a 5.2% reduction by Annex I countries. This outcome came in a package with an agreement on the commitment period: the EU had given in to US demands for a five-year period and an agreement was reached on the period 2008–2012 (Schröder 2001: 81). finally, the issue of gas coverage was also settled by a compromise: all six gases proposed by the US were included, but the base year was changed to 1995 instead of 1990 for SF6, HFCs and PFCs (Grubb et al. 1999: 74–75). Going beyond Article 3, the overall deal included further concessions to the US in the form of enhanced flexibility, which the EU was now prepared to accept.

The outcomes of these talks, as well as those of the various working groups, were considered in the concluding COW on the basis of a final draft protocol text shortly after 1 o’clock am on 11 December 1997 (UNFCCC 1997d). Estrada imposed a deliberation on this draft article by article, starting with “the letters, not the numbers” of the central Article 3, then discussing all the other articles, before returning to the emissions reduction targets referenced to in this article (and detailed in Annex B) (Audio 1997b, 11 Dec. 1997). Regarding the issue of targets, Article 3 of the new negotiation text contained the main fruit of the compromise between the US, the EU and Japan. Its first paragraph included the obligation for industrialized countries to “individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B”, regarding six gases over the period 2008 to 2012 (UNFCCC 1997d: 4). Estrada’s article-by-article approach functioned smoothly until discussions came to paragraph 10 of draft Article 3, which allowed for the possibility of emissions trading (Audio 1997b, 11 Dec. 1997). Strong opposition against this flexibility ← 94 | 95 →tool from the majority of members of the G-77/China, forcefully voiced by the Chinese delegation, stalled the negotiations for quite some time, jeopardizing the overall agreement (Audio 1997b, 11 Dec. 1997; ENB 1997t: 12). After a short break, Estrada proposed to adopt the idea of emissions trading, central for getting the US and Japanese approval of the agreement, in a different article (16 bis, now 17 KP), effectively shifting the decision to a later conference of the parties (ENB 1997t: 12).9 Article 3 could thus be adopted, and later also the numbers contained in Annex B. In return, the majority of the G-77/China obtained that the draft Article on voluntary commitments for developing parties (Article 9 in this final negotiating text, Article 10 in previous versions), and thus a central demand of the US delegation, was deleted, despite support for this article by AOSIS (Oberthür/Ott 1999: 230). Commitments for all parties were, however, included in draft Article 11 (later to become Art. 10 KP; UNFCCC 1997d: 11–12), which essentially reiterated previously existing obligations under the UNFCCC (Yamin 1998: 123). While the US had thus obtained its desired linkage between targets and flexible mechanisms, it had failed on the issue of developing countries commitments. The EU, in return, did not achieve a fundamental commitment to PMs. Article 2 of the Protocol contained an exhaustive list of PMs, but made none of them obligatory (for the in-depth discussion of the EU’s influence, see below). Discussions ended towards 10 am on 11 December 1997, paving the way for the ultimate approval of the Protocol in the final COP plenary later that day (ENB 1997t: 8).

The Outcome: the Kyoto Protocol

The outcome of this 30-month negotiation process was the Kyoto Protocol (KP), an international treaty complementing the soft-law approach of the UNFCCC with some “harder” provisions regarding the ultimate objective of the regime (Art. 2 UNFCCC) and the means for reaching this aim (Bodansky 2001). Its entry into force would require the ratification of 55 parties to the UNFCCC, including Annex I parties representing 55% of the total emissions of all Annex I parties (Art. 25.1 KP).10 This section provides a brief discussion of the core features of the new treaty as far as they are relevant for the specific thematic focus of this study, for the appreciation of the EU’s influence and the overall understanding of the further analysis (for legal analyses of the Protocol, see Depledge/Yamin 2004; Oberthür/Ott 1999; Yamin 1998).

← 95 | 96 →At the heart of this treaty lay the legally binding numerical emissions reductions obligations for Annex I countries in its Article 3.1. They provided a further specification of the overall objective of the regime embodied in Art. 2 of the Convention, which remained applicable. Art. 3.1 KP reads:

The Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B (…) with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.

Emissions reduction pledges covered a range of six gases (Annex A) and were differentiated among parties, with country percentages listed in Annex B of the Protocol: the 15 EU members committed collectively to a –8% target, the US to –7%, Japan and Canada to –6%, Russia and New Zealand to stabilization, and Australia was allowed an 8% increase. Together, the individual targets added up to a total of 5.2% GHG reductions for the period 2008–2012 (compared to 1990 levels). Article 3 KP further contained specific rules reflecting the complexity of the negotiations on the targets and covering such issues as sinks and calculation (Arts. 3.3, 3.4, 3.7) or banking (Art. 3.13) (for details, see Yamin 1998: 118–199; Oberthür/Ott 1999: 121–123).

Further obligations with regard to reporting duties for Annex I parties to the new treaty were specified in Art. 5 KP: each of these parties had to put into place a “national system for the estimation of anthropogenic emissions (…) of all greenhouse gases not controlled by the Montreal Protocol”. No new responsibilities were introduced for non-Annex I parties. Art. 10 KP essentially only reaffirmed the existing obligations under Article 4.1 of the Convention (Oberthür/Ott 1999: 232–233; Yamin 1998: 123).

For the purpose of this study, these provisions represented the central results of the negotiations. Two other articles were of particular importance to the EU: Article 2 KP listed a set of policies and measures including, for instance, “the enhancement of energy efficiency” or the promotion of “research on renewable sources of energy”. The “such as” provision of this article implied that the measures were non-binding, reducing the list to an arguably useful, but indicative compilation of potential ways of cutting GHG emissions (Yamin 1998: 116). This was obviously very far from what the EU had originally intended with its protocol proposal (Grubb et al. 1999: 126). A second provision of specific interest to the EU was Article 4 KP on the joint fulfilment of obligations under the Protocol. It opened the way for the Union to “share the burden” and collectively ← 96 | 97 →meet its obligation during the Kyoto commitment period (Pallemaerts/Williams 2006: 39–40). Yet, on this point again, the EU did not quite manage to reach its aim: it had originally planned to reserve the concept of joint fulfilment to regional integration organisations only, but later had to accept it as general option for all parties (Oberthür/Ott 1999: 140–145).

The treaty remained fairly ambiguous when it came to the major additional novelties, namely the three flexible mechanisms: joint implementation (Art. 6 KP), the Clean Development Mechanism (CDM) (Art. 12 KP) and emissions trading (Art. 17 KP) (Yamin/Depledge 2004: 136–196; Yamin 1998: 121–122). Joint implementation as a concept allowed for the exchange of “emissions reductions units” between Annex I countries. Emissions trading, at the time not clearly defined, involved a system of tradable emissions permits between parties (Yamin/Depledge 2004: 156–159). finally, the CDM, as a newcomer of the final days of the Kyoto talks, allowed for industrialized countries to reduce emissions by financing climate-friendly projects in developing countries in return for “certified emissions reduction units” (Werksman 1998). Much uncertainty prevailed with regard to how these mechanisms – particularly emissions trading, which had almost been the cause for a last-minute breakdown of the negotiations – would be implemented in practice. As Articles 6.2, 12.7 and 17 KP shifted the discussions on the concrete use of each of these mechanisms effectively to future conferences/meetings of the parties, they would become the centre of discussions and sources of discord during the negotiations after 1997 (Dessai et al. 2003).

Concerning the institutional set-up of the regime, the Protocol relied to a large extent on the institutions that already existed under the Convention, with the exception of introducing a separate “meeting of the parties” (abbreviated MOP in the past, now referred to as CMP) (Art. 13 KP; Yamin 1998: 124). This meeting, although held in parallel to the UNFCCC COP, is legally distinct from the latter, as the parties to the UNFCCC and the Kyoto Protocol did not necessarily have to – and indeed in practice do not – overlap (Yamin 1998: 124).

Finally, several articles foresaw procedures for periodical reviews of and amendments to the Protocol. A review should take place in the light of the “best available” science, and “at regular intervals and in a timely manner” (Art. 9 KP). Article 3.9 stipulated that, if it was found to be necessary to alter emissions reductions targets, “the Commitments for subsequent periods for Parties included in Annex I shall be established in amendments to Annex B to this Protocol.” These provisions opened the way for continued negotiations about the sufficiency and functioning of the regime, and would therefore acquire a certain importance in the further evolution of the global climate regime.

← 97 | 98 →The EU’s influence Attempts: Extracting Patterns

A first observation with regard to the Union’s influence attempts throughout this process concerns the negotiation context itself: the discussion of the process illustrates that the foreign policy activities on climate change were, despite growing politicization of the issue, very much confined to the UN negotiation arena.11 The decisive talks were clearly held during the AGBM sessions and COPs (Interviews EU, US representatives 5, 17). Outside events (and related influence attempts), like the G-7+1 summits and several bilateral or small-scale multilateral meetings between key players beyond the UN framework, may have been complementary to the wider multilateral efforts, but the crucial foreign policy acts were clearly exerted under the UN negotiation track, at least until the final days of COP 3.12

The EU’s foreign policy acts regarding these negotiations can therefore be analytically divided into exchanges with key partners (above all the US, but also Japan) beyond and, above all, within the UN framework (Interviews EU, US representatives 5, 17). Outside the UN arena, constant exchanges between climate negotiators were assured, primarily, by formal talks at Troika level, with the Presidency, but also other Troika members (like the UK at COP 3), playing a key role (Delreux 2008; Kanie 2003; Cass 2007). Bilateral meetings between single EU member states and other parties, such as China, Japan or Russia as well as consultations between, for instance, the UK and Australia or New Zealand also served the purpose of building confidence, explaining common positions and exchanging information (Oberthür/Ott 1999: 63–64). finally, the EU was engaged in all major fora discussing climate change at the time, including the G-7+1 and other summits (Oberthür/Ott 1999: 59–63). In the more restricted realm of the UN negotiations, the EU, represented by the Troika, met with all major delegations on a regular basis, but had particularly intense discussions with the US and Japan throughout the entire process (Interviews EU, US representatives 5, 17). While these formal and informal exchanges proved important to bolster the flow of information, the most significant EU foreign policy acts tended to be rather formal and take the form of written submissions to the UNFCCC secretariat and oral statements during the negotiations.

← 98 | 99 →Given their centrality to the EU’s foreign policy strategy, a brief recapitulation of the Union’s most striking influence attempts throughout the negotiations serves to unveil their key characteristics:

AGBM 2 (30 October 1995): The EU proposes the outline of a structure for the protocol, prominently featuring PMs.

AGBM 5 (December 1996): The EU submits an elaboration of its draft protocol structure including various types of commitments and an Annex X that would allow new parties to join the Annex I country group.

AGBM 6 (3 March 1997): The Environment Council announces the EU’s GHG reductions target of –15% until 2010 compared to 1990 levels for three gases. This proposal is later completed through a mid-term target of –7.5% by 2005.

BEFORE AGBM 8 (autumn 1997): The Commission recalls, in a communication, “The EU Approach to Kyoto”. Bilateral exchanges are intensified.

COP 3 (December 1997): After a rather defensive start, the EU becomes a central player in the final bargain on targets and all other interlinked elements of the Protocol.

From an analytical perspective, this overview demonstrates that the range of foreign policy tools the EU employed was not very extensive. In essence, the main instruments that its influence attempts were based on were diplomatic. In line with the WEIS code, they can be described as “to make proposals”, but also – in the later stages – “to demand” (Wilkenfeld et al. 1980). These proposals would often be linked to dialogues, visits and conferences, which would be exploited to explain the proposals, exchange positions, and search for commonalities. They were based mainly on conclusions by the Environment Council, which provided the negotiation position for the global climate talks and formed the basis for the Union’s written submissions (through the Presidency) to the UNFCCC secretariat. Occasionally, Commission communications or conclusions of the European Council would also be employed as influencing tools. The propositions were often not directly targeted at any actor, but remained fairly general. Hardly ever did the EU employ any other foreign policy instruments to supplement this diplomatic approach. Its proposals for technology transfer and financing of climate mitigation or adaptation activities in developing countries, for instance, did not contain any incentives for developing countries to join into mitigation efforts, even on a voluntary basis.

Several characteristic features of the Union’s main diplomatic tool – the written submissions – can be distilled from its contributions. first, the EU’s proposals were substantially quite detailed – unlike, at least in the first fifteen months of the negotiations, the proposals of other parties – clarifying ← 99 | 100 →on most issues what it had decided that it wanted the outcome of the negotiations to look like. In the first instance, the Union concentrated to a large extent on its preferred regulatory approach, with extensive proposals on policies and measures. During this stage, its aim was clearly the creation of durable structures: it wanted to impact on the design of the key features of the future climate regime in accordance with its own “command and control” environmental policy tools. This approach contained a good deal of pragmatism. Until the US u-turn at COP 2, the EU had apparently thought that the Americans would never accept a new treaty with legally binding targets (Grubb et al. 1999: 54–55). It wanted thus an agreement with clearly defined measures, which would ensure that even reductions that were not binding could realistically be achieved. After COP 2, its stated position became gradually broader and more actor-focused, explaining also explicitly what it expected from other groups of countries: comparable efforts from industrialized countries, and the preparedness for assuming obligations in the medium to long term from advanced developing countries (European Commission 1997). These proposals, as seen and further analysed below, would set the agenda for the later stages of the negotiations, especially regarding the discussion of targets. The degree of detail of the proposals implied that many of the EU’s positions were not very flexible, and had seemingly not been developed with an idea of potential concessions to other parties (and the corresponding internal fall-back positions) in mind. The EU essentially posited its approach and argued for its usefulness. This indicates that it may have wanted (consciously or not) to engage other parties in a process of arguing during the early stages of the process, interpreting the negotiations as a sort of competition for the best, most convincing ideas. This pattern recalls certain findings for the UNFCCC negotiation process, during which the EU had, for a long time, attempted the same, believing that the US could be convinced of the necessity to stabilize emissions by the year 2000. However, when the other industrialized parties held back their proposals on crucial agenda items for such a long time, the EU was the first major party to come out with its 15% GHG reduction proposal. This proposal has been interpreted as “more apparent than real” (Jordan/Rayner 2010: 63), but it was actually both: on the one hand, it represented a sincere wish by some of the European Environment Ministers of being capable of substantially reducing emissions in this range; on the other hand, it constituted a complicated position aimed at bargaining (Matsumura 2000: 18; Cass 2007: 78; Interviews EU, US representatives 5, 17). The fact that only 10% reductions were covered by the EU’s internal burden-sharing agreement strongly indicates the importance of the latter interpretation. For the first time, the other parties – and those more reluctant to substantial reductions were clearly targeted (the US, other JUSSCANNZ members) – thus received the signal that the Union was generally willing to compromise, ← 100 | 101 →entering subtly into a bargaining mode. In the final stages of the talks, the EU multiplied such signals on other issues (e.g. emissions trading) taking on a more pragmatic stance and – again a parallel to the UNFCCC negotiations – were led by the British negotiator, in this case Deputy Prime Minister Prescott, to agree to a compromise formula. Second, and linked to this, the timing of the EU’s detailed proposals was striking. The Union was, besides AOSIS, the first major player to make wide-reaching proposals about the shape of a new climate agreement. This proactive approach to the negotiations became very visible when it exposed, as the first Annex I party, its position regarding the key issue of the Berlin Mandate, the setting of targets. This move, at a critical moment in the AGBM process, earned it “renewed profile and initiative” (Grubb et al. 1999: 58). Despite inflexibility, the strategy of “frontloading” very detailed proposals arguably ensured the EU an important agenda-setting role and can partially explain its influence on this process, as further elaborated below.

In synthesis, a clear pattern of EU influence attempts in the Kyoto Protocol negotiations emerges from the process trace: the Union relied heavily on the quality, appeal, persuasiveness and timing of formal diplomatic tools. Early in the negotiation process, it exposed a rather well-­prepared and wide-reaching position, which it gradually refined. Throughout the talks, it argued and reached out on the basis of this position, tending to become rather defensive in the final stages of the process. The EU’s approach to multilateral negotiations and international law-making, in this case through the development of an existing legal regime, appeared thus as a unique mixture of a legal-formalistic form (tools of UN conference diplomacy) with a highly political substance (with a position centred on targets, but otherwise little “give and take”).

The EU’s influence in the Kyoto Protocol Negotiations

As could be observed from the phased process analysis, the talks on the Kyoto Protocol went through several phases. Transitions between these phases regularly coincided with the evolution of the textual bases on which the deliberations were conducted (Depledge 2005: 166). This allows for isolating turning points in the narrative, enabling a determination of EU influence on the basis of a conditional causal analysis covering the five constitutive dimensions of the concept (see Chapter 1).

The negotiations remained in a pre-negotiating and issue definition mode for the first half of the AGBM process. AGBM 4/COP 2 then marked a first turning point because it provided a different framing for the further talks, with the US joining the group of parties in favour of legally binding emissions reduction targets. Entering into the more concrete positioning phase, talks were marked by several key proposals, notably ← 101 | 102 →regarding targets, before or during AGBM 8. As these proposals considerably reduced the number of options on the table, AGBM 8 can be interpreted as the second turning point. final decisions were, however, mostly taken towards the end of COP 3, which marks the third turning point. Where these turning points concerned primarily the emissions reductions target, one more turning point needs to be added.

This first, major turning point during the negotiations on the Kyoto Protocol could be observed very early in the process. Regarding the issue of responsibilities (who is to take on emissions reductions obligations?), the evolution of the negotiations at COP 1 in Berlin proved crucial for the final outcome. As seen, the proposal of the AOSIS coalition prior to the conference and the negotiation position issued by the like-minded group of G-77/China members during the COP had categorically opposed the start of protocol negotiations if these should lead to the adoption of (binding) obligations for developing countries. The “green paper” issued by this group had therefore demanded that “the consultations will not introduce any new commitments whatsoever for developing country Parties” (UNFCCC 1995c: point 4, emphasis added). This position was quickly supported by the EU, eager to begin a new negotiation process and fearful that the opposition of developing countries could prevent a decent outcome of this COP.13 This broad coalition of the majority of G-77/China and the EU, supported by the environmental NGO community, would build sufficient pressure to impose its view on the reluctant JUSSCANNZ and OPEC countries. The Berlin Mandate that was ultimately adopted contained a range of safety clauses for developing countries, including several references to the CBDR principle (UNFCCC 1995e). It made it patently clear that the newly begun negotiation process should “not introduce any new commitments for Parties not included in Annex I” (UNFCCC 1995e: point 2 (b)). This provision would become the point of reference throughout the further negotiation process whenever attempts were made by the US and others – including the EU, with several submissions calling for voluntary developing countries’ commitments, and New Zealand with its sharply contested “progressive commitments” proposal in the final week at COP 3 – to convince key developing countries to do their share in the emissions reduction efforts, either voluntarily or in a future commitment period. On this basis, the G-77/China, assisted at times by Chair Estrada, employed its numerical superiority to successfully prevent any mention of new commitments for its members in the Kyoto Protocol. De facto, COP 1 in Berlin thus pre-emptively eliminated all other potential paths ← 102 | 103 →on this very issue, locking it in, and demonstrating thus an interesting example of enduring influence of the G-77/China bloc. This influence was fundamentally grounded in the group’s structural achievements of the past: its successful insistence on the prominent insertion of the CBDR principle in Art. 3 of the UNFCCC during the period 1991–1992 would allow the bloc to constantly refer to this provision. This influence based on the exploitation of previously created structures was rooted in the size of the coalition, traditional attempts at keeping the lines closed in support of shared interests, but also in apt coalition-building with the NGO community and key countries from the EU at crucial moments in the talks (Rajan 1997: 283). At this turning point, and thus on the issue of the sharing of responsibilities between developed and developing countries during the Kyoto Protocol negotiations in general, the EU clearly failed to exert any influence. With its at times ambiguous position – which acknowledged the rights to development of the non-Annex I countries in the immediate future, but at the same time the findings of climate science that called for the eventual inclusion in collective mitigation efforts of those developing countries whose emissions were projected to rise steeply – it did not succeed in changing any other party’s preferences or behaviour on this issue. Quite on the contrary, it had itself to change its position on the possibility of advanced developing countries emission reductions at COP 1, and repeatedly failed to build any sort of momentum for even the slightest mentioning of such (voluntary) action in the new treaty afterwards (absence of temporal sequence, no goal attainment) (Yamin 2000: 63). This, in turn, meant that the EU was unable to gain any leverage over one of the core pillars of the reformed climate regime.

COP 2 in Geneva marked a second “decisive turning point in the negotiations” (Grubb et al. 1999: 54), particularly regarding the core norm of emission reduction targets. Up to that point, the negotiations had been fairly inconclusive, with parties working on the assumption that the final outcome would not be legally binding (Grubb et al. 1999: 54–55). US Under-Secretary of State Wirth’s speech at COP 2, in which he called for negotiating legally binding targets linked to flexible mechanisms, changed this approach completely. The consequences of this US change in position were manifold: in the short run, it allowed for the adoption of the (non-binding) Geneva Declaration, in which the ministers “instruct their representatives to accelerate negotiations on the text of a legally-binding protocol or another legal instrument”, thus setting the negotiations on a clear track towards legally binding, quantifiable emissions reductions (UNFCCC 1996). Proposals by countries that had initially refused legally binding targets (Russia, OPEC) were thus clearly off the negotiation table. Moreover, the core of the AOSIS proposal (high emissions reduction targets) was, as aptly noted by an observer quoted in the ENB, virtually ← 103 | 104 →“dead in the water”. Once obligations were to become legally binding, they would necessarily tend to be less ambitious because the US and other JUSSCANNZ members would never accept – in their view – exceedingly high binding objectives (ENB 1996b: 13). finally, reduction targets became inextricably linked to the notion of flexibility mechanisms, effectively opposing the US and its coalition partners’ quest for cost-effectiveness to the EU’s command-and-control approach of PMs. Through a simple declaration of intent, the US exerted undeniable influence on the further course of the talks. The US change in position has been interpreted as a result of its reception of the latest scientific advances in the Second IPCC report. Wirth’s statement made several references to the science, criticizing those who still contested it, thus effectively targeting his speech also at a domestic audience (Grubb et al. 1999: 54; Harrison 2000: 104–105). The modification of the US stance was thus clearly not the result of any other party’s influence attempts. This, in turn, means that the EU did not exert any influence at this turning point. It neither was at the origin of the US change of beliefs or preferences, nor had it itself been successful in demanding a legally binding outcome (absence of purposive behaviour, temporal sequence, interaction and goal attainment). By contrast, and in a similar way as on the issue of responsibilities at COP 1 (where the EU followed the G-77/China), it was fairly easy for the Union’s negotiators to support the US proposal (Grubb et al. 1999: 54). As a by-product, the US science-based and domestically motivated mind change effectively also altered the EU’s negotiation strategy: where it had concentrated on PMs before, it quickly shifted its attention to targets after COP 2.

The third major turning point in the Kyoto Protocol negotiations occurred arguably before and at AGBM 8 when some of the key players would finally make public statements about their negotiation position regarding quantified emission reduction targets. While the positions on the details of an emission reductions article in the future treaty (gas coverage, commitment year or period, differentiation among Annex I countries) had been known for a while, the numbers that several critical parties were prepared to commit to had been held back until October 1997. From the major emitters, only the EU had openly defined its stance as early as March 1997, calling, as seen, for –15% by 2010, and later also for –7.5% by 2005 (compared to 1990 levels, for a basket of three gases). Before AGBM 8, Japan (–5% and differentiation between Annex I countries), the G-77/China (support for the EU’s approach for each gas individually, plus a 35% reduction objective for 2020) and the US (stabilization of GHG emissions at 1990 levels over the period 2008–2012, linked to flexibility) clarified their stance. With these proposals, the number of options regarding the issue of an overall target was essentially limited to three alternatives: the maximalist EU and G-77/China proposal, the US minimalistic ← 104 | 105 →approach, supported by JUSSCANNZ, and the Japanese middle-ground proposal. Only a compromise between the extreme poles would allow for reaching agreement. The fact that the EU’s proposal remained fully on the table demonstrates that the Union had exerted influence with regard to the core norm of the regime up to and beyond this important watershed. Checking the constitutive dimensions of influence shows that the EU had intentionally attempted to set the agenda on this issue (purposive behaviour), had reached out to promote it vis-à-vis other parties (interaction) prior to all other major players (temporal sequence) and had attained its (intermediate) goal of having its proposal considered among the final ones (goal attainment). Going into the ultimate stages of the talks, the EU had thus managed to substantially influence the agenda on this crucial item. With its arguably central influence attempt in the whole negotiation process, it had altered the behaviour of the G-77/China and JUSSCANNZ. While it may have been fairly self-evident that the G-77/China bloc would adopt a position similar to the EU’s due to internal differences rendering a support for the even more ambitious proposal by AOSIS impossible, JUSSCANNZ members were forced to accept the EU’s proposal as valid proposition, even though they did not agree with it (test on absence of auto-causation). The decision on what would become the core provision of the Kyoto Protocol, however, had to await COP 3.

With few final decisions taken, but some pathways excluded, COP 3 marked a fourth turning point at which parties had to determine the main features of the ultimate agreement via the conclusion of a package deal. Three parties (and Chair Estrada) would prove to be central to elaborating the final compromise: the US, Japan and the EU (Depledge 2005; Schröder 2001; Oberthür/Ott 1999; Grubb et al. 1999; Interviews EU, US representatives 5, 17). The entire agreement hinged on the decision on emission reduction targets for Annex I countries. In the course of the negotiations, this issue had become broader than “just” the definition of numerical targets. Unsettled questions at the beginning of the second week in Kyoto concerned not only the numbers, but also the modalities of emissions reductions (gas coverage, budget periods or target year, differentiation). Further, the issue of targets had – ever since the US change in position at COP 2 – been inextricably linked to the notion of flexible mechanisms, supported by JUSSCANNZ, but moderately opposed by the EU and strongly refuted by the G-77/China. Each of these issues merits brief discussion. The question of gas coverage opposed essentially the US (proposing six gases) to the EU and Japan (in favour of three gases). The US proposal for comprehensive coverage of all gases on the basis of the Berlin Mandate finally prevailed in Annex A of the Kyoto Protocol because the EU and Japan accepted US arguments, and successfully obtained as a concession that 1995 instead of 1990 was stated as a base year on the three additional gases (HFCs, PFCs, ← 105 | 106 →SF6) (Yamin 1998: 118, for the full story: Grubb et al. 1999: 69; 75–76; Oberthür/Ott 1999: 120). Concerning the base year and whether to adopt a target year or a budget period (UNFCCC 1997a: Art. 3.1, alternatives A and B vs. C), consensus was quickly found on the idea of 1990 as a base year, which had been a reference point in the discussions for a long time. With regard to the end date, the Berlin Mandate and earlier proposals by AOSIS, the EU and others had clearly favoured single target years (2005, 2010, 2020), whereas the US had argued that spreading the risk over budget periods (e.g. 2006–2010) would be a fairer solution. In the course of the negotiations, other parties, including the EU, had apparently come to accept the rationale of this argument (Oberthür/Ott 1997: 119). In the last versions of the negotiation text, the idea was thus adopted and only the name changed: from budget to “commitment” period. The Chair’s proposition of 2006–2010 as the initial period was later changed, with the EU’s explicit approval, to the original US proposal for 2008–2012. Hence, on these technical issues, the US position almost completely prevailed, with the EU bowing voluntarily to what it perceived as the better arguments in the context of an overall compromise regarding the emission reduction obligations. On the matter of differentiation, the EU was influential malgré elle. It had opposed the idea of differentiation other than for REIOs throughout the entire talks. Its own burden-sharing approach had, however, weakened its argumentation strategy. Surprisingly, the US was not among those in favour of differentiation at first, as it had accepted EU differentiation as a form of “zero-cost emissions trading” (Grubb et al. 1999: 86). This changed radically at COP 3 when the Americans suddenly signalled openness to differentiation on the basis of a Russian proposal. This, together with the fact that the Japanese were also advocating differentiation, heightened the pressure on the EU to abandon its resistance. Differentiation became thus the third element of the discussion on emissions reductions targets on which the EU had to give in, delivering – through its own “bubble” – itself the best argument for its opponents. The final component of the decision on the core norm of the regime, the numerical targets themselves, was negotiated between the EU, the US and Japan during the last few days of COP 3. A first quantified proposal by Chair Estrada, assigning 10% reductions to the EU, 5% to the US, and 2.5% to Japan, was refuted as unacceptable by the EU (Schröder 2001: 79). It was then the UK, as member of the Troika, that – as seen, in informal talks and with high-level telephone diplomacy going on in the background – successively negotiated more acceptable targets for the EU, compensating the Union for its concessions on other points, especially the flexibility mechanisms (Cass 2007: 79–80).14 ← 106 | 107 →The final outcome, a 8–7–6% cascade for the EU, US and Japan respectively, can be interpreted as a classical compromise and very much the median between the extreme positions taken by the US (0%) and the EU (–15%), even if it meant very different efforts to the three parties (Interview EU representative 5).15 For the EU, this outcome was acceptable, since it implied almost no differentiation between the large three GHG emitters, and was within the range of 10% reduction which the internal burden-sharing covered. Although the overall target of 5.2% reductions came close to their original proposal, it was Japan as much as the US that had to deviate from their preferred outcomes on this item. The other JUSSCANNZ countries, in return, would make arbitrary “voluntary pledges” based on their “willingness to pay” (Oberthür/Ott 1999: 120).

In the final analysis, the EU had thus managed to exert considerable influence on the core norm of the reformed climate regime: it had been the first major actor to proactively state a numerical target, backed up by internal burden-sharing (purposive behaviour, temporal sequence), and to demand comparable efforts of other countries (interaction), thus not only setting the agenda, but also determining the scope of what was to be discussed in the further talks. Its goals were partially attained: it managed to pull others away from their minimal positions to reach a fairly ambitious, legally binding overall target as well as fairly high individual targets for the other two major industrialized emitters. In counterfactual analysis, checking the negative pole of the concept of influence, the outcome may have looked much different without the Union: “Without the 15% figure and the determination of the EU to push the US and Japan to a comparable reduction (…), the targets contained in the Kyoto Protocol may well have been much weaker” (Yamin 2000: 55). Especially striking is the fact that the EU had gained leverage over emissions in both the US and Japan by effectively managing to change these countries’ behaviour – not through argumentation, but bargaining on the basis of a comprehensive position on its target. As concession, and this was the non-negligible downside of its successful influencing, it did have to give up on most of its ideas on binding policies and measures, and on its initial opposition to the flexible mechanisms which had been a conditio sine qua non of the US position.

← 107 | 108 →When extrapolating from the influence on the two core pillars of the regime, the EU’s overall influence on the talks can be determined. As the Union almost entirely achieved its apparent real aim of 10% legally binding reductions for key emitters, its influence on the norm of the regime (the overall magnitude of the emission reduction target) must be regarded as fairly high, while leverage over the crucial principle of responsibilities was not discerned. Over many other issues not explicitly analysed in depth, its influence seemed equally limited. Assuming an equal weight of the two key analytical units, the Union’s overall degree of goal attainment was thus medium. So was the degree of durability of the final outcome: although the Kyoto Protocol represents an international treaty, it embodied legally binding emission reduction obligations only for a clearly delimited and comparatively short time period. Altogether, the EU’s overall influence on the Kyoto Protocol negotiations must therefore be assessed as medium. This observation is confirmed by the existing secondary literature specifically on the EU in the Kyoto Protocol talks (Yamin 2000; Gupta/Grubb 2000). It is also confirmed by the reputation analysis carried out for this time period (Interviews EU representatives 5, 21; non-EU representative 17, Observers 27, 3).

To further nuance the assessment of the Union’s impact, it helps to set its performance into a broader perspective. A common evaluation of the Kyoto Protocol negotiations sums up the outcome as “The EU got their numbers, the US got their institutions, Japan gained some prestige and the developing countries avoided reduction commitments” (Andresen 1998: 28). From a longitudinal perspective, the EU’s success on the numbers was, however, linked to a series of significant concessions to the other negotiating blocs, making it impossible to consider Art. 3 and Annex B in isolation from other elements of the Protocol. The Union’s acceptance of the non-bindingness of policies and measures (Art. 2 KP) and of the insertion of various flexible mechanisms (Arts. 6, 12, 17 KP) set the regulatory tone of the regime for the post-COP 3 period: even though the new “institutions” (above all: emissions trading) obtained by the US were, just like the PMs, not legally binding, and even though they were not even properly specified in the treaty, the attraction of these cost-effective mitigation means would be much greater for most (Annex I) countries than the interest in PMs over the course of time. What is more, the EU’s ambiguous stance regarding developing country commitments led to a difficult relationship with both the G-77/China and JUSSCANNZ in this period and the time thereafter. The G-77 did not appreciate the fact that the EU sometimes (e.g. at COP 1) supported developing country positions, but demanded at different points in time (before COP 1, in late 1997, at COP 3) future efforts from the most advanced developing countries. By contrast, JUSSCANNZ, notably the US, lacked an understanding of what ← 108 | 109 →in their view was a too timid support by the Union for demanding developing country actions, given the clear scientific diagnosis that emerging economies’ emissions limitations were essential for the future efficiency of the climate regime. The collective inability of industrialized countries to convince developing countries of the necessity to – ­eventually – contribute to mitigation efforts would prove to become quite devastating for the success of the Kyoto Protocol in the long run. The Clinton administration delayed the submission of the Protocol for ratification in the Senate, as it obviously did not fulfil the conditions of the Byrd-Hagel resolution (Missbach 2000: 142). This contributed to the country’s complete withdrawal from the Kyoto ratification process under the following administration. In hindsight, the EU’s relative success on the targets must therefore be regarded as, at least in part, a Pyrrhic victory: in the short run, the EU had attained its aim of adopting a treaty with legally binding, albeit ultimately not enforceable numbers, but lost, for the medium term, possible leverage over US and developing countries’ emissions.

Explaining the EU’s influence during the Period 1995 to 1997

To facilitate the explanation of EU influence, two sets of assumptions were made when designing the analytical framework for this study: causal mechanisms underlying the exercise of influence (bargaining, arguing), and potential variables that may qualify as conditions enabling or restraining EU influence were identified. Two analytical strategies can be employed that capitalize on these assumptions: pattern-matching and explanation-building (see Chapter 1).

The story of the negotiations indicates that their decisive final stages must be considered as a relatively unequivocal example of classical bargaining (Rowlands 2001), especially regarding the crucial issues of targets and responsibilities. For one, the outcome, a “package deal” linking numerous issues, represented a compromise par excellence: in simplified terms, the acceptance of targets by the US depended on other parties’ preparedness to integrate flexible mechanisms into the treaty regime, while the approval of the latter by the G-77/China was conditional on the exclusion of new commitments for developing countries. A preference for bargaining was also visible in the approach to the negotiations taken by the Chair, who repeatedly emphasized that “nothing is agreed until everything is” (ENB 1997k: 6), and in most parties’ tendency to “backload” proposals (Depledge 2005: 171). finally, no key party changed its beliefs or preferences on the key issues during the negotiations, with the exception of the US on the legal bindingness of targets at COP 2, arguably under the impression of new scientific findings. Parties only modified their ← 109 | 110 →behaviour to allow for an agreement at the very last stage. This confirms the above assumption that the EU’s exercise of influence must have been bargaining-based. In other words, the causal mechanism that led others to alter their behaviour and move into the Union’s direction on the targets was bargaining rather than persuasion. The questions that remain are how and why this causal mechanism was brought to bear on the issue of targets, and not, or to a much lesser extent, on other issues. The EU’s influencing strategy must have met with favourable conditions in this respect, while it proved to be less suited to the negotiation context (or the discussed issues themselves) on other agenda items. In search for the scope conditions that triggered the causal mechanism, all variables identified in Chapter 1 are briefly considered: the global context and significant events, the issue of climate change, the internal dynamics of the regime, including actors’ beliefs and preferences, positions, capacities and their interaction.

No significant external events were detected during this time phase that could have or did impact the climate negotiation arena. By contrast, advances in the scientific findings on the issue of climate change in the second IPCC report of late 1995 marked the negotiations in the spring and summer of 1996, enhancing the willingness of parties to consider legally binding targets. As for the regime dynamics, the fact that negotiations were mostly based on a bargaining rationale made interests and strategic behaviour central to the final outcome. This makes it necessary to re-consider the evolution of the interests (and their formation), strategies and capacities of the major actors throughout the negotiations. For the US, the intricate internal institutional set-up and the highly conditional support of the Senate for an engagement in global climate talks made it extremely difficult to define a position in the first place. Nonetheless, once it had defined its stance, it managed to behave strategically on the basis of interests that were predominantly economically motivated: any acceptance of climate mitigation policies was to avoid putting US competitiveness at risk. Its overall clout in the negotiations was guaranteed above all by the fact that it had remained the largest emitter on the planet. Japan had comparable internal problems. The turf wars between environmentally and economically minded ministries were ultimately settled through an intervention by the foreign ministry and the Prime Minister, based on general foreign policy considerations rather than economic or environmental concerns. Its clout in the talks was primarily a result of its function as a host country of the decisive COP. As such, it assumed the role of a facilitator, trying to balance the two extreme positions on targets and regulatory approaches. The G-77/China, despite all its heterogeneity, derived its force from its unity during key moments and on crucial issues in the negotiations. It remained a very defensive actor on many points, protecting its own achievements of the past (Art. 3 UNFCCC) and demanding further ← 110 | 111 →developed country action. finally, if the EU possessed actor capacity during this period, it varied in function of its internal decision-making and coordination processes. As a result of its at times dysfunctional “climate policy-making machinery” and its insufficient preparedness for the final bargaining round, extensive internal coordination was necessary, hampering greater outreach activities and a more strategic approach (not only) at the Kyoto COP (Yamin 2000: 61). In contrast to the US, which had difficulties defining a position, but was more effective once it had one, the EU possessed elaborate positions quite early, but was rather inflexible in the actual talks. These positions and actions were, to a larger extent than in the case of the US and Japan, motivated by environmental and, on the issue of responsibilities, equity concerns (Interviews EU, US representatives 17, 5; Van Schaik/Schunz 2012). In its approach towards the target, it acted on the basis of the precautionary principle, and made the strategic choice to adopt a position that would force other industrialized countries to react in order to come to a fairly ambitious overall target with every Annex I party on board. In its strategy regarding developing country commitments, it regularly let moral concerns prevail and did not insist on a more active implication of advanced non-Annex I countries in mitigation policies. When these incommensurable approaches and interests clashed in a negotiation context necessitating decision by consensus, only strategic interaction and a package deal could be the outcome. The sole point of convergence of all (major) actors in the negotiations, at least after COP 2, concerned the necessity, in light of the political pressure that had built up, to agree on a new treaty with legally binding commitments. Capitalizing on this agreement, the necessary space for overcoming differences by extensive concession-making opened up during the final days of the talks.

This review of the potential explanatory factors of EU influence on the climate regime during the studied period thus points to a mixture of internal and external scope conditions enabling the EU’s influence through bargaining, while also highlighting several restraining factors.

Turning to the enabling conditions first, the Union’s own strategic approach around the issue of targets was certainly helpful: on this issue, it positioned itself proactively, managed to gain support from the G-77/China (and civil society actors), and remained firm until the final days of the talks. Moreover, it was able to organize its foreign policy implementation around this position, with a very engaged member state (the UK) taking the lead as key representative in the final stages of the negotiations. External factors that enabled its influence were arguably the goal-specific preference convergence between major actors (an outcome had to be achieved at COP 3 under the pressure of global public opinion), a level playing field among them, and the strong preferences of other key actors ← 111 | 112 →for approaches that the Union had refused from the start of the talks (like the notion of flexibility and differentiation), which opened pathways for mutual concessions. In these circumstances, its influence attempts were able to trigger “bargaining” as the causal mechanism leading to change in the behaviour of other players.

By contrast, the findings also allow for identifying several hindrances to the EU’s capacity of exerting influence. Regarding internal factors, the negotiations on the issue of responsibilities indicated the need for internal coordination in the face of conflicting preferences among member states on strategic (as opposed to substantial) choices. As a result of this and a clear lack of “political will” of the member states, the Union’s foreign policy implementation was rather limited and ambiguous on key issues (Yamin 2000; Sjöstedt 1998: 238–239). Concerning external determinants of the Union’s influence, the latter was considerably restrained by other actors’ power and their capacities to convert this power into influence. These, in turn, depended to a large extent on the internal institutional set-up, interest and belief constellations within third countries and negotiating coalitions. In some cases, as with the G-77/China on the issue of responsibilities or with the US on the issue of flexible mechanisms, the relative power of these actors – rooted in material and immaterial capacities including emission profiles (for the US) and the capacity to build coalitions (for the G-77/China) – was so significant that they created an uneven playing field, to the detriment of the EU. As a result, these actors’ negotiation positions absolutely had to be accommodated to ensure the overall aim of reaching an agreement.

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1For reasons of coherence, the acronym JUSSCANNZ, although this may not always be entirely accurate, will be used throughout this chapter.

2The numbers cited here are 1990 figures, taken from the first national GHG reports. They have been chosen to allow for comparability and because they provided the basis on which the various parties formulated their preferences and negotiation positions at that time (UNFCCC 1997e: 60).

3EU foreign policy tools were generally discussed in Chapter 1 as part of the question how the EU can exert influence. They are further highlighted in the process analysis.

4After Germany in late 1994, France and Spain assumed the Presidency in 1995. In 1996, Italy and Ireland took over, followed by the Netherlands and Luxembourg in 1997. At COP 3, the UK (Council Presidency in 1998) completed the Troika.

5To visualize the different sub-plots, the level of analysis discussed in a paragraph is highlighted in bold.

6This situation has remained unchanged ever since COP 1.

7The EU provided a list of Annex X countries in July 1997 (AGBM 1997e).

8This proposal was arguably the fruit of internal concessions by OPEC on the 2010 target and by AOSIS on the issue of a compensation fund for oil-producing countries.

9The new text in what became later Art. 17 KP was a compromise formula proposed by the UK, on behalf of the EU (Audio 1997b, 11 Dec. 1997; Yamin 1998: 122).

10This was achieved in late 2004. The Protocol entered into force on 16 February 2005.

11In this sense, the negotiations were much more restricted than they would become in the period thereafter (Interviews EU, US representative 5, 17).

12Notable other fora that were not highlighted in the general story included the OECD, where an “Annex I Expert Group” provided an arena for discussing contentious issues (such as PMs or emissions trading), but “could not heal the divides” among countries (Oberthür/Ott 1999: 59–60).

13And this was despite the fact that it had previously timidly alluded to the necessity of emissions reductions by the most advanced developing countries (see EU submission to INC discussed above – UNFCCC 1994: point 9).

14The UK was criticized in the aftermath of COP 3 for having given up on the EU’s ambitious targets too early, despite the other member states’, notably Germany’s opposition (Delreux 2008: 147). Before and during the negotiations, many observers had actually felt that the final outcome would hinge on “how hard-nosed the EU is prepared to be” at COP 3 (ENB 1997k: 16). To the surprise of some, including Chairman Estrada and Dutch minister de Boer, it appeared as not having been “hard-nosed” enough in insisting on its –15% target (Oberthür/Ott 1999: 121). Others have pointed to the fact that the target was considered, by the majority of member states, as a negotiation position anyway (Cass 2007: 78).

15For Japan, with an already comparatively energy-efficient economy at the time, this outcome arguably meant a far greater effort than for the EU or the US.