University of Bristol - School of Law

In partial fulfillment of the requirement
for completion of the degree
of Master of Laws by Research

ENGO Influence in International Climate Change Negotiations - Case Study of the Issue of Post-2012 during COP 11 and COP/MOP 1

Rabbi Deloso

Table of Contents

Abstract

I. Introduction ... 4

1. Subject of the Thesis ... 5
2. Research Questions ... 6
3. Limitations of the Study ... 8
4. Review of Literature ... 10
5. Theoretical Approach and Methodology ... 15
    5.1. Regime Theory ... 15
    5.2. Stages of Regime Formation ... 16
    5.3. Power, Interests and Knowledge in Regime Formation ... 17
        (i) Power-based approach for Regime Formation ... 18
        (ii) Interest-based approach for Regime Formation ... 20
        (iii) Knowledge-based approach for Regime formation ... 22
    5.4. Case Study Approach ... 23
    5.5. Analytical Framework ... 24

II. Climate Change: Science, Policy and ENGOs ... 29

1. The Science of Climate Change ... 29
2. Development of Climate Regime ... 31
    2.1. From Rio to Kyoto ... 32
    2.2. Beyond COP 3: Events Leading to the Entry into Force of the Kyoto Protocol ... 34
3. Legal Context of NGO participation in Climate Change Negotiations ... 35

III. Case Study Analysis ... 37

1. Introduction ... 37
2. Beyond Kyoto: Post-2012 climate policy ... 38
3. Key Bodies and Relevant Actors in Post-2012 Negotiations during COP 11 and COP/MOP 1 ... 40
    3.1. The Global Policy Forum ... 41
    3.2. States/Policy-Makers ... 41
        (i) The European Union ... 45
        (ii) JUSCANNZ ... 46
        (iii) G77/China ... 42
        (iv) OPEC ... 43
        (v) Economies in Transition ... 43
        (vi) AOSIS ... 43
    3.3. Environmental NGOs: Climate Action Network ... 43
        (i) CAN Membership ... 45
        (ii) Organisational Profile ... 46
        (iii) CAN Strategies in International Climate Negotiations ... 48
4. Stages of International Policy Formation ... 50
    4.1. Agenda Setting: Issue of Post-2012 in the Negotiating Table ... 51
        (i) Seminar of Government Experts ... 53
        (ii) UNFCCC Subsidiary Bodies 22 ... 55
    4.2. Negotiation Phase: COP 11 and COP/MOP 1 ... 56
    4.3. Operationalization: 2006 Implementation of COP 11 and COP/MOP 1 Decision ... 60
        (i) UNFCCC Dialogue on Long-Term Cooperative Action ... 60
        (ii) Ad Hoc Working Group on Article 3.9 of the Kyoto Protocol ... 62
5. Analysis of Evidence of NGO Influence on post-2012 negotiations at COP 11 and COP/MOP 1 ... 64
    5.1. Evidence of CAN Participation ... 66
        (i) Access ... 66
        (ii) Resources ... 67
        (iii) Activities ... 67
6. Evidence of goal attainment ... 70
    6.1. CAN Policy Goals for COP 11 and COP/MOP 1 on Post 2012 issue ... 70
7. Effects on Negotiation Outcome ... 73
8. Effects on Negotiation Process ... 76
9. Indicators of NGO Influence ... 77
10. Tracing Causal Mechanisms ... 78
    10.1. Process Tracing ... 78
    10.2. Counterfactual Analysis ... 78

IV. Conclusion ... 79

References ... 82

I. Introduction

There is recently a resurgence of attacks in the media against the scientific basis of global climate change and the necessity for political action. Some global warming sceptics from the academic and political sectors accuse majority of climate experts, the media, governments and environmental NGOs of a conspiracy to deceive the public on what they term ‘the great global warming swindle’¹. Although the scientific community is virtually united behind the idea that the earth’s climate is indeed changing and that human activities are the primary cause of it, it is not difficult to comprehend why a political debate surrounding the issue of whether political action should be undertaken continues to flourish. Global warming is, after all, arguably the greatest scientific and political concern confronted by humanity.

It also comes as no surprise that the scepticism surrounding climate change

Since the first major gathering of states and nongovernmental organisations (NGOs) in the 1972 Stockholm Conference to address global environmental problems, the role of environmental NGOs (ENGOs) in international policy making is elevated to the level of significance. States are no longer viewed as the exclusive actor in the formation of international environmental policy. The growing complexity of global environmental problems paved the way for states and international organisations to turn to ENGOs for their expertise and resources. However, despite changes in the role ENGOs play in the global political arena their influence in the formation of international law remains contentious.

One environmental issue characterized by complexity and exigency that concerns ENGOs and states alike is the global warming phenomenon. No other environmental issue has the potential of affecting the way people of all regions of the world live. Indeed, climate change is arguably the international community’s most serious environmental problem to date.

Since its early discovery in the 1960s (Luterbacher and Sprinz, 2001: 24), the science of climate change has advanced and there is now scientific evidence that global climate is warming (IPCC, 2001; 1). The potentially global and long-term detrimental effects of climate change require the concerted action of international actors—states and non-states. Thus, the

Kyoto Protocol is envisioned to serve as an initial step taken by all countries in the long battle to address climate change. If science is to be believed, further global action is necessary to achieve the objective of the United Nations Framework Convention on Climate Change (UNFCCC), of “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system” (Art. 3, UNFCCC).

Unfortunately there are significant players in the climate debate that did not ratify the Kyoto Protocol, and states parties to it are divided on how to move forward when the agreement expires in 2012 (hereinafter ‘post-2012’). This dilemma needs to be addressed soon as 2012 is fast approaching. The eleventh sessions of the Conference of the Parties to the UNFCCC and the Conference of Parties serving as the first Meeting of Parties to the Kyoto Protocol (COP11 and COP/MOP1) was the first official gathering of states that formally addressed the issue of post-2012. How the ENGOs, represented by the umbrella organisation Climate Action Network (CAN) took part in the negotiations and whether it has influenced the results in light of the apparent differences of opinion among states is the concern of this thesis.

1. Subject of the Thesis

States and international organisations are formal actors in drawing up international environmental agreements. As mentioned, nongovernmental organisations also has a key role to play. From the time of the adoption of the United Nations Charter in 1945, which provided for accreditation of NGOs (Art. 71), the NGO world experienced exponential growth. Some scholars believe that a critical mass has been reached making NGOs the new “fifth state” on the field of global governance (Fitzduff et.al., 2004:2)². NGOs have, in many places, become significant political actors, and this heterogeneous group has made its presence felt at the local, national, and international levels.

However, the growing numbers of NGOs do not entail a similar transition of their official status under the UN system. As provided in the UN Charter (Art. 4), only states can be members of the organisation. Hence, only voting states have formal powers to determine the outcome of international treaty negotiations. NGOs are subject to rules established by states, if any, for their limited participation in negotiation meetings. Although NGOs are cannot vote during international negotiations, they have devised ways to have an effect on the results of the process. However, the degree of NGO influence in international policymaking varies from one negotiation to another and this is becoming a major subject of interest for legal and NGO scholars.

This study aims to bring the debate on NGO influence to the current stage of international climate change negotiations. This thesis shall explore the influence of key ENGO’s within the legal framework of participation in climate change policymaking with particular focus on the issue of process for negotiation of post-2012 climate policy during the Eleventh Conference of the Parties to the UNFCCC and first Conference of the Parties serving as the Meeting of Parties to the Kyoto Protocol (COP11 and COP/MOP1) as well as the events leading to and following the said meeting, as may be relevant.

COP 11 and COP/MOP 1 is the first and, to date, the largest gathering of states parties to the UNFCCC and Kyoto Protocol and NGOs. About 360 non-governmental organisations took part in various capacities in formal and side events where parties discussed, negotiated and adopted important decisions which includes: the operational details of the Kyoto Protocol (a package of decisions known as the “Marrakesh Accords”)³, and; in accordance with Article 3.9 of the Protocol, COP11 and COP/MOP1 also made decisions on negotiation process for post-2012 commitments.⁴ As it is a well-defined and easily identifiable area of negotiations, it is useful as an object of study. For this study, we employ a modified version of the methodology developed by Corell and Betsill (2001) for the analysis of NGO influence in international climate negotiations.

2. Research Questions:

In accordance with the UNFCCC, ⁵ states parties have regular meetings at the Conference of the Parties (COP) to define relevant issues, formulate and negotiate rules of procedure and future binding policies aimed at achieving the framework convention’s ultimate objective of achieving “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.⁶ It was during the third COP in 1997 that states parties agreed to a protocol to the UNFCCC which set binding targets for a group of countries (Annex B) to reduce the global greenhouse gas emissions “by 5% below the 1990 levels”.⁷ The first commitment period begins in 2008 until 2012. The protocol also provides that states parties shall initiate consideration of any commitments seven years prior to 2012. Thus, parties to the protocol have the important task of negotiating for post-2012 arrangements, if any, during its regular meeting in 2005.⁸

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1 Wheldon, J., “Greenhouse effect is a myth, say scientists,” The Daily Mail (5 May 2007). Accessed at http://www.dailymail.co.uk/pages/live/articles/technology/technology.html? in_article_id=440049&in_page_id= 1965 on 5 March 2007.
2 In 1994, the Union of International Associations listed over fifteen thousand NGOs (Weiss and Gordenker, 1996: 17), while in 2000, it was estimated that there were over two million NGOs in the United States, sixty-five thousand in Russia and twenty-one thousand in the Philippines (Ibid: 7).
3 These decisions contain guidelines for how the Protocol will function, such as those relating to the “flexible mechanisms” intended to help parties reach their emissions targets in a cost-effective way, and a compliance mechanism.
4 Earth Negotiations Bulletin, Vol. 12 No. 219 (December 12, 2005), accessed at http://www.iisd.ca/climate/cop11/ on 21 May 2006.
5 See, Article 7 UNFCCC
6 See, Article 2 UNFCCC
7 Article 3.1, Kyoto Protocol
8 “Commitments for subsequent periods for Parties included in Annex I shall be established in amendments to Annex B to this Protocol, which shall be adopted in accordance with the provisions of Article 21, paragraph 7. The Conference of the Parties serving as the meeting of the Parties to this Protocol shall initiate the consideration of such commitments at least seven years before the end of the first commitment period…xxx” Article 3.9, Kyoto Protocol .