Editor's Note. This article was originally present in large part at a seminar at Oxford University, November 9, 1990, and has subsequently been revised for inclusion in a book under the working title, The International Politics of the Environment--Actors, Interests and Institutions, A. Hurrell and B. Kingsbury, eds. (Oxford University Press).
Within their respective spheres of competence, the Community and the Member States shall cooperate with third countries and with the relevant international organizations...
Article 130R (5) of the Title of the Treaty of Rome concerning environmental policy.
One of the marks of nation statehood is the ability to enter into agreements with other nation states. This ability is shared by the European Community, even though it is not itself a nation state, but is a "community" established originally among six--and now twelve--nations, each of which continues to express its own sovereignty by pursuing its own foreign relations. It is therefore hardly surprising that when the EC and its member states negotiate with other countries, there is some ambiguity about their relative roles.
The tasks, powers, and institutions of the EC are set out with a fair degree of clarity in the Treaty of Rome that created the EC in 1957. By establishing a common market, the founding fathers sought to achieve closer relations among the member states. Although there are many who would like to see the EC evolve into a kind of United States of Europe, it is easy to demonstrate that the EC has not yet achieved the quality of nation statehood. For a start, it has no head of state, nor a constitution adapted for dealing with all eventualities--nor even the power to raise taxes directly from citizens. All these are characteristics normally regarded as essentials of nation statehood. On the other hand, the EC is more than an international organization established among nations to pursue some prescribed activity without fundamentally ceding any of their sovereign powers. What distinguishes the EC is its possession of institutions able to adopt legislation that directly binds the member states without further review or ratification by national institutions. In the environmental field, the extent of the legislation is such that it is now impossible to understand the policies of any EC member state without understanding EC policy. And at the same time, member states are no longer entirely free to pursue their own policies, both at home and abroad.
The EC legislature is composed of the Commission, acting together with the Council (composed of national ministers). The Commission proposes the legislation and the Council adopts it after receiving an opinion from the parliament directly elected by the citizens of the member states. The European Court of Justice has the power to find against a member state that fails to apply EC legislation correctly, and the Commission does not hesitate to bring cases before the Court. The powers of the EC to legislate are certainly confined to subjects prescribed by the Treaty of Rome; but a generous interpretation has often been given to the treaty, and the EC was able to adopt an environmental policy in 1972 despite the absence of express powers. These were not introduced until the treaty was amended in 1987 by the Single European Act.
The influence of the EC on its member states has increased rapidly at some times, less so at others, and in certain fields there has sometimes been near immobility. In December 1990, an intergovernmental conference began to revise the treaty for the purposes of monetary union and political union, which could substantially extend the EC's powers. One of the tasks of the conference is to give greater precision to these concepts. As the powers of the EC increase, and its internal policies more deeply influence the member states, so the EC is strengthened in its ability to act in its own right on the international stage. This will apply in the environmental field as it will in others; but since the result is a diminution in the ability of the member states to act on their own, the path is unlikely to be smooth. This evolution of the EC coincides with the emergence of the environment as a major new subject of international affairs. The EC has already played an important role on the world stage in the protection of the ozone layer and is beginning to do so with global warming. But as the policy responses to global warming may have profound effects on many aspects of national life, the exact role of the EC will not be decided easily.
If the role of the EC, relative to its member states in external affairs is one ambiguity, another one has also to be confronted. Is EC internal environmental policy to be regarded as international, on the grounds that it involves relations between several nation states, or does the title of this article confine discussion to the EC's external relations?
To regard internal EC policy as within the scope of the International Politics book---as the editors have wanted---is a perfectly tenable view, even if by accepting it one compounds a confusion that commonly surrounds the EC.
It is as well to get to the bottom of this confusion, since it is particularly important in the environmental area where responsibility for implementing policy---and thereby helping to make it---frequently rests with local authorities or other sub-national bodies who would not normally expect to be involved in foreign affairs, but who increasingly find themselves having to come to terms with EC affairs.
One of the reasons why the EC is so difficult to understand is that it does not fit the simple model of public policy under which it is commonly divided into home and foreign affairs. EC policy making shares so many of the characteristics of foreign policy making that it is easy to think of it as such. For a start, it involves other countries and is usually made abroad. Despite the growing role of the European Parliament, EC policy is prepared largely in secret---following the traditions of diplomacy---and legislation is adopted by a council of ministers behind closed doors. The process is thus much more like treaty making than the open process of adopting national legislation, the hallmark of parliamentary democracies. It is still possible for EC legislation to differ in significant respects from the proposal originally published by the Commission without outsiders knowing who was responsible for the changes or why. But EC legislation, once adopted, is quite unlike a treaty and can have the same force as national legislation. One form of EC legislation---the regulation---is directly applicable by national courts, just as if it were national legislation. Another form---the directive---binds national governments as to the ends to be achieved, and can also be applied by national courts in some circumstances. Both these forms affect internal affairs without further review of ratification by national parliaments. If a member state fails to fulfill the obligation set out in an EC directive, the Commission can bring an action before the Court and so draw attention to the failure. All member states effectively now have two legislatures, and the higher legislature (EC) can influence internal decisions, just as does the lower (national) legislature.
The implications of this point are best illustrated with an example.
Duich Moss is a peat bog in Islay, one of the Western Isles of Scotland. Islay is the seat of a distillery producing a single-malt whisky that is renowned for a flavor imparted to the malted barley by the burning of peat. A few years ago the distillery wished to expand its production and applied for planning permission involving a new site for digging peat and an access road. The planning application was opposed by the Nature Conservancy Council (NCC), the U.K. government's official adviser on nature conservation matters, and by a private body, the Royal Society for the Protection of Birds (RSPB). In winter, 4 to 5 percent of the entire world population of the Greenland whitefronted goose is to be found feeding at Duich Moss.
This is a typical case of a conflict arising between two interest groups, the resolution of which it is one purpose of home policy to provide for. In this case, national rules exist and are administered locally, unless exceptional circumstances suggest that the central government should intervene. Under the town and country planning laws, permission to develop land is granted or withheld by the local authority, after certain matters have been taken into account, and after interested parties have had a chance to make representations. In this case, the authority decided in favor of the distillery. In the ordinary course of events, that would have been the end of the matter. But the RSPB, having lost the battle under the rules of home policy, proceeded to play an EC card. They complained to the Commission in Brussels that the United Kingdom was in breach of the EC directive on the conservation of wild birds, which requires member states inter alia to classify special protection areas for the conservation of named species of birds. The RSPB argued that under any reasonable criteria, Duich Moss should have been classified as a "special protection area" and that had it been so classified, the outcome of the planning application would have been different.
Complaints to the Commission from individuals, local authorities, and interest groups is a growing feature of the implementation of EC legislation. The Commission has been encouraging this as one way of keeping itself informed. The Commission registers these complaints and, since it has no inspectorate of its own, usually writes to the member state asking for an explanation. In this case, however, the Commission official decided to go and see for himself. As a matter of courtesy, the Foreign Office was informed of his intended visit and was thereby thrown into a state of mild panic. Nothing like this had ever happened before in the EC. Did the official have the right to come? Was his visit desirable? Could he be stopped if he insisted on coming? One can imagine the questions being asked. There is no doubt that the official could visit Islay as a holiday maker to watch birds. But he was coming as a representative of the EC institution that is the guardian of the treaty, to investigate a complaint by a private body against a member state for failure to fulfill an obligation under the treaty. The treaty gives no guidance whatever on the right to visit.
In this ease, the British government put a motor car at the disposal of the official and had him accompanied to Islay. He wrote a report that, according to press leaks, recommended that infringement proceedings be started against the United Kingdom in the European Court. But as so often happens, the matter was settled before it reached the Court. The U.K. government's Scottish Office persuaded the distillery to think again. The distillery decided that another source of peat was suitable. The digging of Duich Moss did not proceed.
So here we have a local dispute decided first one way and then another. Originally it was an aspect of home affairs, but by the time it was finished, it had become something different. But it certainly was no foreign affair in the traditional sense of the relations between two or more sovereign states: and one would have to look hard to find an international treaty governing relations between two nation states that allowed an official of one to travel to another so as to overturn a locally made decision.
Of course the outcome was not just of local interest, since not only did it involve a site of importance for a significant proportion of the world population of a protected species, but it also had implications for other member states when dealing with the birds directive. British home policy in this case can be criticized not just for a failure to identify a site as required by the directive, but also for leaving to a local authority a decision that is really beyond it. In this case, EC intervention has shown up a national error of judgment. An alternative view is that the local authority should itself have recognized the significance of the nature conservation aspect and of the EC directive without central government involvement.
This story illustrates how EC policy is becoming so intertwined with home policy that it is not always possible to understand home policy without taking account of EC policy. Although EC policy has the attributes of foreign policy during its formulation, it then becomes integrated with home policy in its implementation. This originality was recognized by the European Court as long ago as 1964 when it described the EC as establishing "a new legal order of international law."
One can say that for those subjects where there is a corpus of EC law, the EC. is best understood as a federal system with more than one legislature, but where the higher level of government is not itself a nation state. This is a reversal of the situation with existing federations with which we are familiar---the United States and Germany, for example---in which the higher level is a nation state and lower-level bodies are not.
Although the Treaty of Rome took effect in 1957, it was not until 1972 that the heads of state and government decided that the EC should adopt an environmental policy and called upon the Commission to draft a program of action. The treaty, being a creation of the 1950s, did not refer to protection of the environment. It was developments in the member states and in other international fora, such as the 1972 UN Conference on the Human Environment at Stockholm, that created the pressure for the EC to move in this direction.
It was not until 1987 when the Single European Act amended the Treaty of Rome that environmental policy was explicitly provided for. Until then, environmental legislation was adopted under a rather generous interpretation of the treaty and attracted criticism, despite some endorsement by the European Court.
The first action program on the environment covered the period from 1973 to 1976, and we are now two-thirds of the way through the fourth action program. These programs have no main purposes. They suggest specific proposals for legislation that the Commission intends to put forward over the next few years, and they provide an occasion to discuss some broad ideas in environmental policy and to suggest new directions for the future.
The first program was needed to chart a wholly new course and was a long and comprehensive document. It started with a general statement of the objectives and principles of EC environmental policy and then went on to spell out action that the Commission would propose.
The international dimension of environmental policy was recognized from the beginning and no fewer than four of the eleven principles relate to international relations. They can be paraphrased as follows:
The EC has now adopted more than 280 items of environmental legislation. Many of these are of a narrow technical character with little policy content; but several are important by any standard and some, such as that dealing with acid rain, for a time entered the realm of "high politics." They have all been described elsewhere and only a few are touched on here.
Given that EC environmental policy began without a clear legal base in a treaty that was primarily concerned with the creation of a common market, it is no surprise to find that much environmental legislation is concerned with setting standards for products in trade, or with avoiding distortions to competition in industrial activities. If it could be shown that standards set in just one country were affecting the common market, then there was a justification for EC involvement. The role of environmental policy then was to ensure that the common standard was a high standard. But even from the beginning, the EC concerned itself with matters that hardly touched the common market---such as standards for bathing waters or bird protection. Protection of birds is a subject that obviously cannot be handled at the national level alone, since birds fly across frontiers; but the justification for EC, as opposed to national, standards for bathing water is harder to find. The EC never confined itself to the two classic justifications for international environmental policy: first, that some issues (air pollution, sea pollution, transfrontier rivers) are not confined by national frontiers and may indeed be global in character; and second, that international trade is impeded by differing standards.
The adoption of any item of EC legislation is a process of accommodation among several countries. Sometimes, such as with standards for drinking water, each individual member state will be concerned largely with the effects on its own internal procedures and with the cost, since what other member states do will have little or no impact on the environment of others. With other directives, environmental effects between countries have been at the heart of the discussions. An obvious case is the so-called Seveso Directive, named after the suburb of Milan where a major accident at a chemical plant spread dioxin across the countryside. Under pressure from the European parliament, which suspected that the Swiss company had located its plant in Italy because of laxer standards, the Commission proposed a directive provisions of the directive that was finally adopted require not only the production of a safety report and "on-site" and "off-site" emergency plans, but also that the local population be informed of the correct behavior to adopt in the event of an accident.
The proposal as put forward by the Commission had no transfrontier provisions, but the Benelux countries pressed for a requirement that a member state give all appropriate information to other member states that might be affected by an accident. Member states would also have had the right to consult on the necessary measures. This was resisted by the French government. Although the proposed directive specifically excluded nuclear power stations, France feared that it would set a precedent that might then be used by other member states to comment on the siting of French nuclear power stations. This dispute held up adoption of the directive by 18 months, and in the end a compromise was achieved under which information is to be made available among member states only "within the framework of their bilateral relations." This means that the Commission does not have the same right to insist on implementation---as it would have had otherwise---and means that other member states have no rights at all to do so.
Another important directive known as the "sixth amendment" requires the manufacturer of any new chemical to supply an authority with a file on the results of tests for effects on humans and the environment. The authority can call for extra information and if not satisfied, can prevent marketing of the chemical. The file is also sent to the Commission, which passes it to the authorities in all member states. Any one of these authorities can ask for further information. Unless objections are raised within 45 days, the manufacturer has assured access to the whole EC market. The directive simultaneously seeks to prevent environmental problems from arising, and serves the purpose of a common market in chemicals. Its successful operation depends very much on collaboration and mutual trust between the authorities in different countries.
The "sixth amendment" was adopted in 1979 with support from the chemical industry in Europe---which is surprising, given that the industry was not then known for welcoming environmental legislation. One explanation for this is that comparable regulations were being developed in the United States by the Environmental Protection Agency under the Toxic Substances Control Act. The European chemical industry feared that impediments could be put in the way of exports to the United States and believed that comparable rules in Europe could be used to pressure U.S. authorities. They felt that the United States might be deterred by denial of access to the whole EC market---which is considerably larger than the U.S. market---in a way in which they would not be deterred by lack of access to, say, the French or German markets alone. In any event, no trade war across the Atlantic has developed, and the hope remains that ultimately the procedures that enable a new chemical to be sold in the U.S. market will be recognized in Europe and vice versa.
The best-known item of EC pollution legislation dealing with a transboundary issue is the directive that seeks to tackle the issue of acid rain. Known as the Large Combustion Plant Directive, it limits emissions of sulfur dioxide and nitrogen oxides from such plants.
The issue of acid rain reached the political agenda in Sweden in the late 1960s, and in 1972 Sweden managed to make it an international issue at the UN Conference on the Environment held in Stockholm that year. Pressure from Sweden and the other Nordic countries eventually led to the Geneva Convention on Long-Range Transboundary Air Pollution, adopted in 1979 under the auspices of the UN Economic Commission for Europe. This UN grouping includes not only countries from Western and Eastern Europe, but also the United States and Canada. Largely because of opposition from the United States, West Germany, and the United Kingdom, the convention did not include any firm targets for reduction in emissions.
The key date for acid rain policy in Europe is 1982, when the West German government changed its position from passive resistance to enthusiastic support for a policy of significant reduction in emissions. It then persuaded the Commission to propose a directive similar to its own legislation. After a long struggle, a directive set emission standards for new plants and required each member state to reduce emissions from existing plants by certain percentages in three stages. The Commission had originally proposed that each member state should reduce emissions by 60 percent by the year 1995, compared to a 1980 baseline. The economic, geographical, and fuel supply circumstances were so different that a uniform reduction proved unacceptable to several countries. As a result, a compromise was eventually achieved with different countries having quite different reductions that nevertheless should result in a 58-percent reduction in overall EC sulfur dioxide emissions by the year 2003--a slippage of two percentage points and eight years from the Commission's original proposal. This differentiated reduction may yet prove a better model for the global warming issue across the world than the uniform reductions agreed for ozone-depleting substances.
The development of the EC's external powers---that is to say, its ability to deal with other countries much as does a nation state---has come about largely as a result of decisions of the European Court of Justice. The development of these powers has been analyzed extensively, but only rarely have their practical implications in the environmental field been discussed, very probably because they are well known only to those few officials involved. A rare glimpse of problems that have arisen is that given by Andre Nollkaemper, drawing on interviews conducted during a course of probation in the Ministry of Foreign Affairs in the Netherlands. This account draws heavily on Nollkaemper's description.
Before the judgment of the European Court in the ERTA case of 1971, it was possible to argue that the Community was only competent to conclude international conventions when this was expressly provided for in the treaty. Even this assumed that other countries were prepared to deal with the EC, and not all were. In the ERTA case, and on a number of occasions since, the Court decided that competence for external affairs can also be implied by the treaty, as well as by the acts of the institutions performed under the treaty. Of paramount importance is the link between internal and external powers. In the ERTA case, the Court held that whenever the EC has promulgated internal rules in a certain field---for instance, has taken measures binding on the member states---then the powers to act externally in that field are created. Moreover, under certain conditions, these powers will be of an exclusive nature: as soon as the EC comes into possession of these powers, the member states will have lost them. Needless to say, one of the most important---and complex--questions that arises concerns the conditions under which powers become exclusive.
A most important consequence is that the EC's external powers expand without the express approval of the member states simply in the course of developing the EC's internal policies. An extra constraint has therefore been added to EC internal policy making, since the member state should now always consider whether the adoption of some desirable item of EC legislation might not result in the undesirable (to them) loss of external competence.
Only rarely is this soul searching made public, but this happened in Britain during the negotiations that led to Directive 80/51 on aircraft noise. In a debate in the House of Commons, concern was expressed that adoption of the directive might lead to an extension of Community competence into the field of aviation generally, and not just to aircraft noise. Some felt that the Commission might want to represent the member states at international meetings, such as those of the International Civil Aviation Organization (ICAO). However, any fears in the minds of the United Kingdom government on that occasion seem to have been overcome since the minister, Norman Tebbit, expressed himself satisfied that:
the extension of the Community's authority which the Directive will produce is justified by the extra powers that it will bring to enable us to limit the noise of aircraft from other Member States.
These words suggest a balancing of the risks and advantages. The reason for resisting EC competence in this area was given by the minister. He explained that "political issues were rarely raised in ICAO" and "the power blocs are little in evidence." The implication was that if the EC began to act as a bloc, this would encourage other countries to do likewise. The U.K. government must have felt confident that other member states would think in the same way, and it is interesting to note that, although three years later the Commission asked for observer status at ICAO, this was refused by the member states.
Another example is the refusal by the Council to adopt a directive on the dumping of wastes, which the Commission had put forward at least partly to be able to accede to international dumping conventions (the Oslo and London conventions). Some member states believe that accession by the EC will lead to a duplication of activities and that accession by the EC will add nothing to environmental protection.
Where the EC has exclusive competence for all the subject matter of a convention, it is possible for the EC to become a party to it without the member states also being parties. This has happened in some fields, such as trade in commodities, but it has not yet happened in the environmental field Conventions to which some or all of the member states have become parties, as well as the EC, are known as "mixed agreements." A recent example of the consequences of this arose with the Montreal Protocol to the Vienna Convention for the Protection of the Ozone Layer. At the meeting in London in June 1990 at which amendments to the protocol were agreed, the EC had competence for negotiating the percentage reductions in the quantity of ozone-depleting substances that could be produced, because of the existence of an EC regulation covering this. However, the EC had no competence for the decision to establish a fund to assist Third World countries in obtaining the more expensive alternative substances and technologies; and on this point, the member states acted on their own.
Where---under a mixed agreement---the EC has competence, the Commission will negotiate on behalf of the EC in accordance with a mandate given unanimously by the Council--for instance, by the member states. Sometimes this is set in advance, but sometimes instructions are given sur place. Where there is no unanimity among the member states, problems arise. In 1985 at a meeting in Buenos Aires of the parties of the Washington Convention on Trade in Endangered Species (CITES), unanimity could not be found, so all ten member states abstained, leading to a substantial loss of influence. In the same year at a meeting of the parties of the Bonn convention on the Conservation of Migratory Species of Wild Animals, agreement could not always be reached on matters where the EC had competence, and it was accepted that member states could not act independently. However, where the EC did not have exclusive competence, it was decided that member states could act independently. This means that individual member states can advance different arguments and may even vote against each other, though this of course results in a breach of the principle of EC solidarity.
Yet another example of the problems of mixed agreements arose with the Paris Convention for the prevention of marine pollution from land-based sources. In 1982 the EC Commission had taken the view that nothing prevented member states from adopting more stringent standards under the Paris Convention than comparable EC standards; but since 1984 this has been disputed. Disagreements arose relating to standards for mercury, cadmium, and PCBs; and the EC Commission even succeeded in preventing the adoption of proposals for PCBs on the grounds of the EC's exclusive competence. Needless to say, these disputes between the EC Commission and the member states to their relative powers are particularly irritating to non-member states and may well be incomprehensible to them. Such disputes can paralyze the work under a convention. In the case of the Paris Convention (following the accession of Spain and Portugal to the EC), the only non-member states are Sweden and Norway. Sweden followed this episode by tabling a list of questions relating to the powers of the EC.
The EC is now a party to a large number of conventions covering a wide range of environmental concerns. It is seeking to be a party to more. The broad interest of the Commission, with the support of the European Parliament, is to enhance the position of the EC in the world. The extension by the Court of the EC's external powers has allowed this; but without recognition of the EC by other countries as an appropriate party to conventions, this would have counted for nothing. As recently as the early 1980s, during the negotiations of the Vienna convention on the ozone layer, the United States was querying the basis on which the EC could participate. Eventually, with the support of the Soviet Union, and despite resistance from the Commission, the United States insisted on a clause in the convention relating to the conditions under which the EC could be a party. Before that, in the 1970s, EC participation in the Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area was refused by the other parties led by the Soviet Union.
The position with respect to third countries now seems to be that the principle of participation by a "regional economic integration organization" is accepted, but the conditions---including voting procedures in the subsequent implementation of the convention---still have to be negotiated each time. The precedent set in the Barcelona Convention (see below) is that when the EC is given voting powers and votes in the place of the member states, it has as many votes as the number of participating member states. However, in the Baltic Fisheries Convention, which is not a "mixed agreement," the EC only has one vote, although two member states have a coastline on the Baltic. The more the EC acquires exclusive competence and the more it appears to third countries as if it is acting as a nation state itself, the greater will be the pressure for it to be accorded only one vote.
The evolution of the "participation clause" in various conventions has been described by Kiss and Brusasco-Mackenzie.[9 ]The first environmental convention to which the EC became a party (in 1975) is the Paris Convention for the prevention of marine pollution from land-based sources. This took place apparently without difficulty, perhaps because a majority of the parties were EC member states. Next is the Barcelona Convention of 1976 for the protection of the Mediterranean Sea against pollution, where member states were in a minority among the contracting parties. This convention includes Article 24, which mentions the European Economic Community by name and provides for it to sign, as well as any other "similar regional economic grouping at least one member of which is a coastal State of the Mediterranean Sea area and which exercises competence in fields covered by this Convention" This created the theoretical possibility that other groupings---for instance, the Arab League and the Organization of African Unity---could sign if, and to the extent that, sovereignty over the subject matter of the convention had been transferred to them.
The Geneva Convention of 1979 on long-range transboundary air pollution, drafted under the auspices of the United Nations Economic Commission for Europe (UNECE), does not name the EC but foresaw participation by "regional economic integration organizations" constituted by sovereign member states of the UNECE having competence to negotiate, conclude, and apply international agreements. This formulation was accepted by the countries of Eastern Europe, which did not at that time recognize the EC.
The EC has now clearly established itself as an actor on the international stage in environmental as well as in other affairs. Although the Commission is anxious to expand this role, we have seen that there have been subjects---such as aircraft noise and dumping at sea---where the member states have, for certain reasons, prevented the EC from adopting the role that it has acquired for other subjects. Even where the EC has become a party to international conventions, the problems of competence arise. The extent of EC competence depends on internal EC rules, and because these may not be coterminous with those in a convention--and the provisions of a subsequent protocol to the convention may not be knowable in advance--the member states are likely to retain some competence. The division of competences can be very confusing for third countries and can make negotiations difficult--or even in the extreme, can block them.
This complicated process has given the EC greater power in the world, but that by itself cannot be a justification. EC involvement on the international stage must be justified in the end by the extra contribution that the EC can make to solutions to international problems. It must add something to what the member states acting independently could themselves have done. Fortunately there is an example in the environmental field.
The hypothesis that certain gases called chlorofluorocarbons (CFCs) would deplete the stratospheric ozone layer was first advanced by scientists in 1974. Any decrease in the ozone layer allows more ultraviolet radiation to reach the earth's surface and so increases the risk of skin cancers. The response to this hypothesis differed in different countries in the 1970s. The United States banned the use of CFCs in aerosol cans for non-essential uses, but did not regulate other uses---for instance, as solvents, refrigerants, and in blowing foam. Canada, Norway, and Sweden followed the U.S. example. The EC took a different course and in 1978 the Council adopted a resolution calling for a limitation on CFC production. Then in 1980, it adopted a binding decision that placed a production capacity limit on two types of CFCs. While the United States action resulted in a significant reduction in production, the EC action had little immediate effect as EC production capacity was higher than actual production.
In 1977 the UNEP began a review of scientific aspects, and in 1981 initiated negotiations for a global convention. The Council of the EC authorized the Commission to participate on behalf of the EC in these negotiations and in 1985 many countries---among them several EC member states---as well as the EC Commission signed the Vienna Convention for the Protection of the Ozone Layer. It is what is sometimes called a "framework convention since it covers such matters as cooperation on monitoring and research but does not itself place any obligation on the parties to take any specific measures to protect the ozone layer. These were to be laid down in separate protocols.
During the negotiations a dispute broke out between two groups of countries---the EC and what was called the Toronto Group (Canada, the United States, Finland, Norway, and Sweden). Each group proposed that the first protocol to cover CFCs should embody the policies already adopted in their own group of countries. The Toronto Group's proposal was for a worldwide extension of a ban on uses of CFCs as aerosol propellants, but involved no limit on other uses of CFCs. The EC---not surprisingly, in view of the approach it had already adopted---proposed a production capacity limit. The Toronto Group advanced their proposal on the grounds that it was the quickest way of obtaining an immediate reduction in CFC releases. The EC maintained that an aerosol ban did nothing to prevent releases from growing nonaerosol uses and that, since it is the total amount of CFCs released that affects the ozone layer, the only effective action was to limit total production. As a result of this dispute, no protocol was adopted in 1985 and negotiations did not start again until 1986.
Before the new negotiations started, the United States government changed its position. It dropped its proposed aerosol ban and proposed instead a freeze on CFC production by all countries, followed by a series of reductions leading to a production ban. Effectively the United States had conceded the merit of the EC production limit approach, though reformulated and extended in a much more stringent form. Arguably the log jam was broken when, first, U.S. environmental organizations and then industry abandoned the U.S. government's original negotiating position and embraced the EC approach. While the EC's 1980 decision was originally largely symbolic, it had defined an intellectually defensible approach that ultimately became incorporated into the Montreal Protocol.
Following the U.S. proposal, the EC in March 1987 agreed on negotiating guidelines for the Commission which included a freeze at 1986 levels on entry into force of the protocol, followed by a 20-percent reduction four years later. This was not achieved without considerable initial resistance from some member states, including the United Kingdom, under the influence of their industries. In subsequent negotiations, the EC agreed to a further cut, amounting to a 50-percent reduction by the turn of the century; This was embodied in the Montreal Protocol in September 1987, which came into force on January 1, 1989. The EC and the member states ratified it simultaneously.
No sooner was the protocol signed than a consensus developed that the recently discovered hole in the ozone layer was caused by CFCs; and it became evident that the reductions in the protocol were not enough. Fortunately the protocol included a review mechanism, and in June 1990, an amendment required additional reductions. In December 1990, the EC went further than the protocol requires by agreeing to phase out CFCs by 1997.
The United States deserves the credit for creating the pressure in 1986 and 1987 for significant reductions in CFC production, and U.S. negotiators did not always conceal their irritation with the EC for what they saw as footdragging and the complications that it introduced It is therefore worth speculating on what might have occurred had the EC not been involved. Presumably a protocol along the lines of the Toronto Group's proposal would have been adopted in 1985 and several EC member states would no doubt have become parties. This would have been a less satisfactory protocol, which would have needed complete revision after the ozone hole discovery, and several important countries might well have stayed outside, at least initially. The lack of solidarity would have weakened the whole effort. In that event, the EC not only ensured that the protocol had a better form, but also delivered intact a bloc of twelve industrialized countries central to any successful global action, since between them they produced more CFCs than the United States, or Japan, or the Soviet Union. The result was an ideal situation whereby several countries contributed solutions to a global issue and learned from one another during the process.
The Vienna Convention, with its associated Montreal Protocol, is the first convention to deal with the global atmosphere and is therefore inevitably seen as a precedent for a possible convention on global warming. The idea of a freeze, followed by percentage cuts applied equally to all countries, is firmly before us.
In preparation for the Second World Climate Conference held in November 1990, the EC Council--at a meeting exceptionally composed of both environment and energy ministers--agreed that the EC collectively should stabilize carbon dioxide (CO2) emissions by the year 2000 at 1990 levels. No legally binding instrument was adopted, but this "political" decision enabled the EC commissioner--Carlo Ripa di Meana--to make a bid for leadership. The Ministerial Declaration made at the end of the conference welcomed "the decisions and commitments undertaken by the European Community with its Member States," as well as those of several other countries, to stabilize their emissions of CO2. The United States was not one of these, so it cannot be a foregone conclusion that this commitment will necessarily form part of a convention if the world's largest emitter of CO2 is to be a party to it.
The EC's political decision was made possible by some member states (most notably Germany) having already agreed to cut their emissions significantly. This---combined with estimates of what might happen in other countries that had set themselves no targets, and the United Kingdom that had adopted a target of stabilization by 2005---made stabilization by 2000 for the EC as a whole a realistic possibility in the view of the council. To translate this hope into more of a reality, the Commission could now propose a directive allocating different targets to different countries on the model of the sulfur dioxide reductions set out in the large combustion plant directive. Without some greater definition, it is not at all clear what the overall EC "commitment to stabilize" actually means in practice to those member states that have not yet adopted national targets.
Should a directive along these lines come into force, it would give the EC the necessary competence to become a party to a convention that involved stabilization by the year 2000, or any subsequent date. But it cannot be assumed that the Council will agree to such a directive. We have already seen how the Council has on occasion not provided the Commission with a mandate to negotiate on its behalf on some subjects. And some member states might not want to lose the power to negotiate on their own behalf on a subject that has such profound implications for national policies as does energy consumption. In this respect the Montreal Protocol does not provide a perfect analogy. CFCs are a traded product, and for that reason the EC is almost bound to be involved in its regulation. The member states, by agreeing to the Montreal Protocol, transferred competence to the EC for all further control over the quantity of CFC production; but since CFC production will now cease in a few years, the loss of competence will soon be of theoretical interest only. CO2 by contrast is not a manufactured and traded product, but is the by-product of innumerable activities that will have to be controlled or influenced if agreed targets are to be achieved. Whole areas of national life---including the pattern of industrial development and electricity generation, not to mention personal mobility---will be affected forever by any target. Whereas individual countries may be willing to agree on an initial target, they may well be apprehensive about the loss of influence over selecting subsequent and more stringent targets. One possibility which would enable the EC to be a party to a convention is for the EC to adopt a directive that sets an overall EC target of stabilization by the year 2000, but instead of allocating individual differentiated targets for each member state, requires each of them to produce an overall strategy for controlling CO2 emissions. Such a strategy would involve detailed plans for all of the major sources of CO2 and the practical steps for achieving these plans. The overall EC target would provide the pressure on each member state to make its own contribution. If the aggregate of the national strategies is such that stabilization by the EC would not be achieved, then pressure can be brought on those member states that are not contributing enough.
The lesson of the Montreal Protocol can be applied here in reverse. Once the EC has adopted a policy as a result of a process of negotiation between twelve countries, it becomes difficult to shift. This happened with CFCs, and fortunately the policy the EC adopted in 1980 provided the model for certain aspects of the protocol. But if it had been an inadequate policy, it would not necessarily have been taken up in the protocol. Similarly, if the EC adopts a detailed carbon dioxide policy on its own, which is not adapted to other countries, it may make it difficult for the EC and its member states to play a constructive role in the negotiations on a global warming convention. Flexibility will therefore be needed.
The EC's competence in international environmental policy is suddenly being put to the test. Collectively the EC has already played a role and is exerting pressure---on the United States in particular---in a way that individually the member states would not have been able to do. But it needs practical action on the part of the individual member states, if a reality is to be made of any target, be it stabilization or reduction. Practical action could require flexibility that can be lost when power is lost. One can anticipate that the allocation of responsibility between the EC and its member states, as negotiations proceed over the years, will require a consensus that may not be achieved without some struggle. The stakes are high and are worth the struggle. Other countries may sometimes have to show patience as they watch.
1. The European Court has developed the doctrine of "direct effect," whereby national courts can apply a directive, in the absence of national implementing legislation, if its requirements are sufficiently clear.
2. Van Gend en Loos v. Netherlands Fiscal Administration, Case 26/62 1963 ECR I.
3. House of Lords' Select Committee on the European Communities, Approximation of laws under Article 100 of the EEC Treaty, 22nd Report, Session 1977-78.
4. Nigel Haigh, EEC Environmental Policy and Britain, 2nd edition, 1990 update (London: Longman).
5. Andre Nollkaemper, "The European Community and International Environmental Cooperation: legal Aspects of External Community Powers." Legal Issues of European Cooperation 2 (1987): 55-91.
6. Commission v. Council (ERTA) - Case 22/70, ECR 1971 263.
7. House of Commons' Official Report, 19 June 1979, Cols 1251-1283.
8. The Commission wanted abstention by the member states in the absence of a common EC position. This was because, in its view, the issues under consideration (bullfrogs and hooded seals) were already within exclusive EC competence, since CITES was a common commercial policy matter. Hence the member states were not entitled to act unilaterally in an external context with respect to them. The member states, or at least six of them, took a different view, arguing that as the species were not already within the CITES appendices of the EC CITES regulation annexes, they were not within EC competence and hence member states were entitled, in the absence of an EC common position being established in accordance with Article 5 of the Treaty of Rome, to take whatever action they individually deemed best.
9. A. Kiss and M. Brusasco-Mackenzie, "Les Relations Exterieures de la CEE en Matiere de Protection de l'Environnement," Annuaire Francais de Droit International, XXXV-1989 Editions du CNRS Paris.
10. Richard Elliot Benedick, "U.S. Environmental Policy-Relevance to Europe," International Environmental Affairs 1, no. 2, Spring 1989.
Director, Institute for European Environmental Policy, London; and Honorary Research Fellow, Faculty of Laws, University College, London.