a bulletin on global warming and the Third World

issue 7  January 1993

published by the International Institute for
Environment and Development (London, UK) and the
University of East Anglia (Norwich, UK) with support
from the Swedish International Development Authority in
association with the Stockholm Environment Institute

editorial office:  TIEMPO, c/o Mick Kelly, School of
Environmental Sciences, University of East Anglia,
Norwich NR4 7TJ, UK (email gn:crunorwich)


JAMES CAMERON considers the extent to which
international law can assist in solving global
environmental problems.

THE UNITED NATIONS Framework Convention on Climate
Change (FCCC) was signed by 155 States in June 1992.
Much more than a framework, it is a comprehensive
international legal structure for the regulation of the
production and consumption of energy and the protection
and enhancement of what are described as greenhouse gas
sinks, namely, forests and oceans. It is an agreement
which touches the lives of all human beings.

The Convention was negotiated in record time. From the
beginning of official negotiations in Washington to
adoption and thereafter signature was a little over one
year. There were only 61 days of official negotiations.

It is true to say that a great deal of informal
negotiations took place between the official
negotiating sessions and the work of the Chairman, M.
Jean Ripert of France, was critical in building the
consensus necessary for an agreement of this scale.
Indeed, in a vitally important negotiating session in
Paris prior to the final meeting in New York, M. Ripert
was able to produce the text which formed the basis of
the ultimate agreement. Whilst some may argue it took a
long time for the international community to act on the
issue of human-induced climate instability, the
international legal process cannot be criticized for
being too slow.

All those that participated in the Intergovernmental
Negotiating Committee (INC) for the Climate Change
Convention - and more parties, both government and non-
governmental, participated in this agreement than in
any other in history - will remember the extraordinary
experience of consensus-building in the UN Chamber
about the nature and scale of the threat to the
biosphere and life on earth and the urgent need to deal
effectively with the causes of the problem. 

The negotiators understood all too well the difficulty
of overcoming vested interests in the energy sector.
However, I would venture to say that even their own
negotiators were at least impressed by the overwhelming
desire for change. Change not for the sake of it but
for the sake of returning to a form of balance and
stability in the ecosystem which will enable our
generation to feel confident that we can pass the
systems that support life on earth to our children and
their children in a healthy state.

How can international law help the environment?
Traditionally, international law is conceived as the
law made by and between sovereign states. Based on the
notion of consent, most states cannot be forced to be
bound by any rule of law at the international level.
However, this rather simplistic notion fails to explain
adequately the real world experiences of human beings
living in an international society of many and varied
power-holders (including, in particular, the
multinational corporations), and the purposes for which
law is created. 

International law is now made by processes involving
non-governmental organizations, multinational
corporations, trade associations, individual experts,
international organizations and, of course, states. The
relationship between all these actors is extremely
complex, each in their turn contributing to a process
which also guides and controls their actions. The
moment states join a process, such as that which
created the Climate Change Convention, they necessarily
give up sovereignty. 

It is axiomatic that, if you negotiate in good faith,
your original position will always be affected by the
activity of negotiation and, therefore, will be
changed. When there are in excess of 160 states
involved in the negotiations, together with many
hundreds of representatives from the non-governmental
community, it can be shown with certainty that no
single state, no matter how powerful, could claim to
have got all that they wished for out of the agreement.

International law is, therefore, important for the
solution of environmental problems, first and foremost
because it provides a structure in which to hold
negotiations. Thereafter, it creates obligations which
are undertaken in a political and legal context which
provide for a significant measure of accountability for
all those that hold power in international society.

In assessing the significance of law at the
international level we are faced with the same
paradoxes and contradictions which exist in
understanding any legal system. Law is an ideal. Its
purpose is to guide, exhort, obligate and persuade
human behaviour towards perfection. The ideal of
perfection is altered and adjusted by political
morality at any particular time in history. As Philip
Allott taught me at university, "international law is
the will to perfection of the whole human race." 
Where there are laws there are law-breakers. The
tendency to break law is associated with social
behaviour. It is clear that states, when they act at
the international level, behave in an unsocial manner.
My view is that there are no longer any very obvious
advantages in this way of behaving. Our very obvious
interdependency creates enormous pressures for
cooperative relationships. This is not to deny
competition nor to imagine that there will never be
reasons enough for a state to deliberately break the
law. However, we are learning more sophisticated ways
to control this form of abuse of power. 

The European Community (EC) has demonstrated that an
international legal rgime can transfer rights to
individuals to enforce international legal obligation
against their own states. The EC legal system provides
an example of the potential for international law.
Indeed, explicitly in the area of the environment, the
recent Treaty provisions dealing directly with
environmental protection have already had a significant
effect in guiding the behaviour of states and their
citizens and it is a process which cannot be reversed.

Law distributes welfare - welfare in the sense of
society's goods. This is an aspect of distributive
justice which the international legal system has worked
hard to address, with limited success. Whilst it can
fairly be stated that the demand for a new
international economic order which arose from the
decolonization period has to a large extent failed, the
essentially moral principle which the law expresses in
the concept of equity has survived and featured
strongly in all the Rio agreements, not least the
Climate Change Convention.

The objective of the Convention (Article 2) is to
achieve stabilization of greenhouse gas concentrations
in the atmosphere at a level which would prevent
dangerous anthropogenic interference with the climate
system. A time-frame is given for achieving such a
level which is not precise as to dates but is described
as sufficient to allow ecosystems to adapt naturally to
climate change, to ensure that food production is not
threatened, and to enable economic development to
proceed in a sustainable manner. 

This objective is not only the focus for the Convention
but an integral part of all the substantive
obligations. The objective is joined to those
obligations through the unusual and innovative section
on Principles (Article 3). 

The chapeau to Article 3 states: "In their actions to
achieve the objective of the Convention and to
implement its provisions, the parties shall be guided,
inter alia, by the following [principles]." These
principles can be summarized as follows:
o    common but differentiated responsibilities;
o    full consideration to developing countries
especially vulnerable to the adverse effects of climate
o    the precautionary principle;
o    sustainable development (rights and duties); and
o    non-discrimination in international trade.

Article 4 contains another interesting chapeau: "All
parties taking into account their common but
differentiated responsibilities and their specific
national and regional development priorities,
objectives and circumstances, shall..." The commitments
are, however, divided between all countries under
Article 4.1 and developed country parties (including
those in Annex I) who are required to make specific
commitments consistent with their primary
responsibility for the creation of the problem. 

The general commitments concern the development and
publication of national plans which contain measures to
mitigate climate change by addressing emissions of
greenhouse gases and the removal of greenhouse gases
from the atmosphere by sinks. In order to develop these
plans, national inventories of emissions by sources and
removal by sinks of greenhouse gases need to take

Parties are also obliged to:
o    cooperate in the development, application and
transfer of technologies that control, reduce or
prevent the emission of greenhouse gases;
o    promote the sustainable management of sinks and
reservoirs (forests, oceans, and so on);
o    cooperate in preparing their adaptation to the
impact of climate change (including integrated plans
for coast and air management, water resources and
agriculture) and the protection and rehabilitation of
areas affected by drought and desertification;
o    undertake environmental impact assessment of
policies and projects which may affect climate change;
o    promote and cooperate in scientific, technical and
other research, systematic observation (or any other
method to reduce or eliminate remaining uncertainties
regarding the causes, effects, magnitude and timing of
climate change);
o    promote and cooperate in the full and open
exchange of relevant information;
o    promote and cooperate in education, training and
public awareness; and
o    communicate to the Conference of the Parties
information relating to implementation in accordance
with Article 12.
There is a lot here for any government to do, whether
developed or developing, and I imagine that many
administrations around the world will find it extremely
hard to comply with these obligations. At the very
least, they will need a great deal of assistance and

So far as the developed country parties are concerned,
Article 4.2(a) was the result of the now notorious
compromise made between the United States and the
United Kingdom which was brokered by the British
Minister for the Environment, Michael Howard QC. It
bears all the hallmarks of a clever lawyer's settlement
of disparate political positions and may well be the
most convoluted and opaque Article in any legal

Article 4.2(a) is designed with in-built creative
ambiguity. Those involved in the negotiations knew
that, in order to get the United States to sign the
agreement at all,  no precise targets and timetables
for the reduction of greenhouse gas emissions could be
mentioned. Language had to be agreed which will allow
flexible interpretation, even differing interpretation,
in order to be politically acceptable to the major
powers. It must be said that the United States is now
one of four countries as of this date to have ratified
the Convention.

The section is now so complicated, requiring
simultaneous reading of several Articles and
sub-paragraphs at once, that a general summary is
dangerous. Every word in the context of every paragraph
in the context of the agreement as a whole must be read
with care. 

This much is clear.

The developed country parties (including the members of
the former Soviet Union) must limit their emissions of
greenhouse gases consistent with the objective of the
Convention, taking into account their particular
individual circumstances. They may do this jointly with
other parties.

They are also obliged to communicate detailed
information on the policies and measures taken to limit
their emissions, together with information relating to
projected emissions (and removal by sinks), "with the
aim of returning individually or jointly to their 1990
levels of these anthropogenic emissions." This
information will be reviewed by the Conference of the
Parties (once the Convention is in force). The
Conference of the Parties shall consider the adequacy
of these commitments taking account of the latest

New and additional financial resources must be made
available to meet the agreed full costs incurred by
developing country parties in complying with their
obligations under the Convention. These resources are
specifically designed to assist in meeting the cost of
provision of information, the costs of implementing
national plans and, through the financial mechanism in
Article 11, the provision of funds for projects aimed
at solutions to the climate change problem.

There is a further commitment to assist the developing
country parties that are particularly vulnerable to the
adverse effects of climate change in meeting the costs
of adaptation to those adverse effects. This is to be
seen in conjunction with the paragraph relating to the
special situations of developing countries arising from
the adverse effects of climate change and/or the impact
of the implementation of response measures. It is
interesting to note that one of the actions which must
be given full consideration is that of the provision of
insurance or compensation funding for those who
actually are adversely affected. This is an idea
previously reported in Tiempo (Issue 4, February 1992).

Additionally, there are the traditional references to
transfer of technology, the situation of the least
developed countries, and the enhancement of the
endogenous capacities and technologies of developing
country parties. A "certain degree of flexibility" is
to be allowed by the Conference of the Parties to those
parties which are described as "economies in
transition", namely those emerging from the Soviet

Somewhat bizarrely, the special situation of those
countries whose economies are highly dependent on
income generated from the production or consumption of
fossil fuels is to be taken into account when
considering the implementation of the commitments of
the Convention. This was a provision in which the
oil-producing states of the Gulf, Latin America and,
indeed, Australia found support for in states such as
Singapore and Korea whose economies are highly
dependent on fossil-fuel consumption.

A brief scan of the titles of subsequent Articles
displays the range and scope of the agreement: research
and systematic observation (Article 5), education,
training and public awareness (Article 6), subsidiary
body for scientific and technological advice (Article
9), subsidiary body for implementation (Article 10),
financial mechanism (Article 11), communication of
information related to implementation (Article 12) and
settlement of disputes (Article 14). 

Hidden away in Article 7 on the Conference of the
Parties is a provision, Article 7.2(l), which may
become increasingly important when the Convention comes
into force: the Conference of the Parties shall "seek
and utilize, where appropriate, the services and
cooperation of, and information provided by, competent
international organizations and intergovernmental and
non-governmental bodies." Article 7(6) states that "any
body or agency, whether national or international,
governmental or non-governmental, which is qualified in
matters covered by the Convention, and which has
informed the Secretariat of its wish to be represented
at a session of the Conference of the Parties as an
observer, may be so admitted unless at least one-third
of the Parties present object."

These provisions open the way for a continued and
significant role for non-state actors in the creation
of international law. 

James Cameron is a Barrister and Director of the
Foundation for International Environmental Law and
Development at King's College, London.