Friendly neighbor or Trojan Horse? Assessing the interaction of soft law initiatives and the UN climate regime

Abstract

Current global climate governance is characterized by increasing institutional proliferation. Within the last 5 years several non-legally binding initiatives have emerged, including (i) the Asia-Pacific Partnership on Clean Development and Climate and various other public–private partnerships working on the policy implementation level and (ii) the Group of Eight Gleneagles Dialogue on Climate Change, Clean Energy and Sustainable Development, and Major Economies Meeting on Energy Security and Climate Change as high-level political processes. As a first step toward analyzing the relationship between these parallel initiatives and the UN climate regime, this article looks at the negotiations of four UN-hosted climate meetings in 2007–2008, providing an examination of the interaction of ‘soft law’ climate initiatives and the ‘hard law’ UNFCCC/Kyoto Protocol process. The methodology of the study is based on participatory observations in the negotiations and document analysis of country and stakeholder positions. The analysis shows that the current multitude of processes in global climate governance entails potential institutional interaction. Deliberations of the key actors give some support to the claims of non-UN soft law being used to exert influence on the negotiations on a future climate regime within the UN context.

This is a preview of subscription content, log in to check access.

Notes

  1. 1.

    For more details on this challenge see IPCC Working Group III report, Box 13.7 (IPCC 2007, p. 776).

  2. 2.

    Some examples of the headlines include ‘Bush Administration Unveils Alternative Climate Pact’ (Reuters, July 28 2005); ‘US Moves to Sideline Kyoto’ (The Financial Times, July 28 2005); ‘Climate Change: Six-nation pact draws enviro’s fire, as EU offers cautious praise’ (Greenwire, July 28 2005); ‘An Alternative to Kyoto’ (The Economist, July 30 2005).

  3. 3.

    Another taxonomy of institutional interaction has been presented by Stokke (2001), and applied to climate governance by McGee and Taplin (2006). This set of causal mechanisms consists of ideational interplay, normative interplay, utilitarian interplay, and interplay management.

  4. 4.

    International institutions are created and have effects through diffusion of normative standards (as in the research tradition of constructivism) as well as changing settings of self-interested utility calculation (as studied by rational choice scholars). However, on the ground either approach can be improved “by carefully incorporating the arguments made by the other” (Abbot and Snidal 2000, p. 422). Actors utilize both normative and interest-based strategies to create international law, and these are normally deeply intertwined (Abbot and Snidal 2000, p. 425). Oberthür and Gehring (2006) have a rationalist emphasis in their causal mechanisms, but their "cognitive interaction," for example, can very well incorporate a constructivist element of identity change as well as bounded rationality learning.

  5. 5.

    The latter is probably more important for this study. For example, it is more convincing to argue that the creation of the APP enabled the USA to consider channelling its technology transfer activities via this route (as discussed in Sects. 3.2 and 3.3) than to argue that the APP persuaded the USA to change its preferences.

  6. 6.

    A limitation of this study is the use of only one indicator, as pointed out by a reviewer. Another option would be to include intangible indicators such as the number of the same people involved in different processes.

  7. 7.

    The UNGA High-Level Event archives are available at http://www.un.org/climatechange/2007highlevel/, the Vienna Climate Talks at http://unfccc.int/meetings/intersessional/awg_4_and_dialogue_4/items/3999.php, the Bali COP-13 at http://unfccc.int/meetings/cop_13/items/4049.php, and the Bonn Climate Talks at http://unfccc.int/meetings/sb28/items/4328.php, retrieved 28 May 2009.

  8. 8.

    Formal negotiations have formal, written rules of procedure, which guides how a negotiation is conducted and how decisions are made; they involve negotiators with official credentials to represent their country.

  9. 9.

    In the Bali COP-13 the Dialogue ended and a new Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA) was launched.

  10. 10.

    Decisions Adopted by COP-11 and CMP-1, see http://unfccc.int/meetings/cop_11/items/3394.php, retrieved May 28 2009.

  11. 11.

    Mr Yvo de Boer, welcoming ceremony, August 21 2007, 10:00–10:30.

  12. 12.

    AWG-4 opening plenary, August 27 2007, 10:30–13:00.

  13. 13.

    Ibid.

  14. 14.

    Dialogue 4, 1st meeting, August 27 2007, 15:00–18:00.

  15. 15.

    Ibid.

  16. 16.

    Dialogue 4, 2nd meeting, August 28 2007, 10:00–13:00.

  17. 17.

    Interview, EU delegate (anonymous), August 27 2007.

  18. 18.

    Earth Negotiations Bulletin, Vol. 12 No. 335, p. 2.

  19. 19.

    Dialogue 4, final meeting, August 29 2007, 10:00–13:00.

  20. 20.

    Earth Negotiations Bulletin, Vol. 12 No. 335, p. 2.

  21. 21.

    The Delegation of the USA Press Briefing, August 29 2007, 13:30–14:00.

  22. 22.

    Ibid.

  23. 23.

    Ibid.

  24. 24.

    Interview, Mr Patrick Finnegan, NGO climate campaigner, December 9 2007.

  25. 25.

    CAN Press Briefing, August 31 2007, 13:45–14:15.

  26. 26.

    CAN Press Briefing, August 31 2007, 20:30–21:00.

  27. 27.

    Mr Yoshiro Mori, Special Envoy of the Prime Minister of Japan, September 24 2007, 15:00–17:00.

  28. 28.

    Ibid.

  29. 29.

    Mr Stephen Harper, Prime Minister of Canada, September 24 2007, 10:00–13:00.

  30. 30.

    Mr Yang Jiechi, Minister of Foreign Affairs of the People's Republic of China, September 24 2007, 15:00–17:00.

  31. 31.

    Mr José Sócrates, Prime Minister of Portugal, on behalf of the European Union, September 24 2007, 10:00–13:00.

  32. 32.

    Mr Toomas Henrik Ilves, President of Estonia, on behalf of the European Union, September 24 2007, 10:00–13:00.

  33. 33.

    Mr Mukhdoom Syed Faisal Saleh Hayat, Minister for Environment and Special Envoy of the President of Pakistan, on behalf of the Group of 77 and China, September 24 2007, 15:00–17:00.

  34. 34.

    Ms Condoleezza Rice, United States Secretary of State, September 24 2007.

  35. 35.

    Ibid.

  36. 36.

    Mr Sze Ping, Greenpeace China, NGO Press Conference, September 24 2007.

  37. 37.

    Mr Yvo de Boer, Welcome Message, see http://unfccc.int/meetings/cop_13/welcome_message/items/4209.php, retrieved May 28 2009.

  38. 38.

    UNFCCC Press Briefing, December 13 2007, 12:30–13:00.

  39. 39.

    ECO Newsletter by Climate Action Network, Issue 2, Vol. CXIII.

  40. 40.

    COP plenary, December 3 2007, 10:00–13:00.

  41. 41.

    Ibid.

  42. 42.

    Contact group on long-term cooperative action, December 5 2007, 15:00–16:30.

  43. 43.

    Ibid.

  44. 44.

    Contact group on long-term cooperative action, December 5 2007, 15:00–16:30.

  45. 45.

    Ibid.

  46. 46.

    White House News, ‘Fact Sheet: Major Economies Meeting on Energy Security and Climate Change’, see http://georgewbush-whitehouse.archives.gov/news/releases/2007/09/20070927.html, retrieved May 28 2009.

  47. 47.

    Dr Harlan Watson, Delegation of the United States Press Briefing, December 6 2007, 14:00–14:30.

  48. 48.

    Ibid.

  49. 49.

    ECO Newsletter by Climate Action Network, Issue 11, Vol. CXIII; Third World Network, Bali Update 16; The Guardian, ‘US Proposal threatens Climate Change Deal’, December 14 2007.

  50. 50.

    The Guardian, ‘US Proposal threatens Climate Change Deal’, December 14 2007.

  51. 51.

    COP plenary, December 14 2007.

  52. 52.

    Sectoral Approaches: An International Chamber of Commerce Issue Discussion Paper, December 8 2007. See http://www.iccwbo.org/uploadedFiles/ICC/policy/environment/pages/Sector_Approaches.pdf, retrieved 28 May 2009.

  53. 53.

    Ibid.

  54. 54.

    BBC, ‘EU ‘snub’ threat at climate talks’, December 14 2007; The Guardian, ‘US proposal threatens climate change deal’, December 14 2007.

  55. 55.

    Ibid.

  56. 56.

    ECO Newsletter by Climate Action Network, Issue 11, Vol. CXIII, p. 1.

  57. 57.

    Earth Negotiations Bulletin, Vol. 12 No. 354, p. 14; Third World Network, Bali Update 13, p. 2.

  58. 58.

    Dr Harlan Watson, US Delegation press briefing, December 10 2007, 14:00–14:30.

  59. 59.

    Dr Paula Dobriansky, US Delegation press briefing, December 12 2007, 12:30–13:00.

  60. 60.

    Earth Negotiations Bulletin, Vol. 12 No. 364.

  61. 61.

    At the Gleneagles Summit of 2005, the G8 asked the World Bank to develop an investment framework for clean energy, and in 2006 the G8’s Development Committee asked the World Bank to explore potential new climate instruments. At the launch of the MEM in September 2007, however, President Bush presented the CIF as his initiative. In June 2008, the CIF was launched in the Leader Statement of the G8 Hokkaido Summit, an event which also included a MEM meeting.

  62. 62.

    AWG-KP, June 3 2008, 10:00–13:00.

  63. 63.

    AWG-LCA, June 6, 10:00–13:00.

  64. 64.

    AWG-LCA workshop on technology transfer, June 3 2008, 15:00–18:00.

  65. 65.

    Ibid.

  66. 66.

    Ibid.

  67. 67.

    Ibid.

  68. 68.

    Ibid.

  69. 69.

    AWG-LCA workshop on investment and finance flows, June 5 2008, 10:00–13:00.

  70. 70.

    Ibid.

  71. 71.

    AWG-LCA, June 6, 10:00–13:00.

  72. 72.

    Ibid.

  73. 73.

    Full text of the Convention see http://unfccc.int/essential_background/convention/background/items/1349.php, retrieved May 28 2009.

  74. 74.

    For a summary of the results, see Earth Negotiations Bulletin, Vol. 12 No. 375, pp. 17–18.

  75. 75.

    See for example ‘Climate change deal better than Kyoto: Howard’, ABC news online, see http://www.abc.net.au/news/newsitems/200507/s1425101.htm, retrieved May 28 2009.

  76. 76.

    An anonymous European representative in the first MEM called the meeting a “game” played by the Bush administration to slow down the momentum toward a post-2012 agreement (The New York Times, ‘Bush Outlines Proposal on Climate Change’, September 28 2007). Another anonymous commentary from the EU referred to MEM as “a cynical exercise in destabilising the UN process” (The Independent, ‘Bush prepares for ‘greenwashing’ climate summit’, September 27 2007).

  77. 77.

    Almost all AOSIS countries are also developing countries and G77 members, with few exceptions such as Cyprus.

  78. 78.

    An example of this is the sensitive issue of non-Annex I differentiation. Bangladesh, often on behalf of the LDCs, has been especially outspoken on this matter, stating that “large developing countries with large economies, resources and institutional capability to take mitigation, adaptation and technology-related actions cannot and should not be equated with LDCs even when all nations are required to lower GHG emissions”. See www.bangladesh-climate.org/dox/Quarterly_3_2007.doc, retrieved May 28 2009.

  79. 79.

    Interview, Mr Patrick Finnegan, NGO climate campaigner, December 9 2007.

  80. 80.

    ICC Policy Statement: Business Perspectives on a Long-Term International Framework to Address Global Climate Change, see http://www.iccwbo.org/uploadedFiles/Long_term_frameworks.pdf, retrieved May 28 2009.

  81. 81.

    Global Wind Energy Council, Press release, December 3 2007, see http://www.gwec.info/index.php?id=30andno_cache=1andtx_ttnews%5Bpointer%5D=3andtx_ttnews%5Btt_news%5D=115andtx_ttnews%5BbackPid%5D=4andcHash=4d3f73cf7c, retrieved 28 May 2009.

  82. 82.

    In the Bonn meeting ‘sectoral approaches’ already featured in the deliberations on several agenda items both in the AWG-KP and AWG-LCA, and in the Accra Climate Talks in September 2008 a workshop was organized on the subject.

  83. 83.

    Interview, EU delegate (anonymous), December 11 2007.

  84. 84.

    C. Boyden Gray, MEM Press Conference, February 1 2008, see http://useu.usmission.gov/About_The_Ambassador/Gray/Feb0108_Gray_Hawaii.asp, retrieved May 28 2009.

  85. 85.

    UK Department of Environment, Food and Rural Affairs, see http://www.defra.gov.uk/environment/climatechange/internat/devcountry/funding.htm, retrieved May 28 2009.

  86. 86.

    Jean-Yves Caneill, ICC, The Poznan Business Day, December 9 2008.

  87. 87.

    The World Bank, Proposal for a Strategic Climate Fund, see http://siteresources.worldbank.org/INTCC/Resources/Proposal_For_A_Strategic_Climate_Fund_April_3_2008.pdf, retrieved May 28 2009.

  88. 88.

    AWG-LCA. 1st meeting, June 2 2008, 15:00–18:00; AWG-LCA, 2nd meeting, June 3 2008, 15:00–18:00; SBI opening, June 4 2008, 10:00–13:00.

  89. 89.

    The Times of India, ‘India Refuses World Bank Aid to Fight Climate Change’, October 10 2008.

  90. 90.

    See these views discussed in Karlsson (2009).

Abbreviations

AOSIS:

Alliance of Small Island States

APEC:

Asia–Pacific Economic Cooperation

APP:

Asia–Pacific Partnership on Clean Development and Climate

AWG-LCA:

Ad hoc Working Group on Long-term Cooperative Action under the Convention

AWG:

Ad hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (2005–2007)

AWG-KP:

Ad hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (2008–present)

BAP:

Bali Action Plan

BINGO:

Business and industry group

CAN:

Climate Action Network

CBDR:

Common but differentiated responsibilities

CDM:

Clean development mechanism

CIF:

Climate investment funds

COP:

Conference of parties (to the UNFCCC)

COP/MOP:

Conference of parties serving as the meeting of parties (to the Kyoto Protocol)

G77:

Group of 77 and China

G8:

Group of eight, Canada, France, Germany, Italy, Japan, Russia, the United Kingdom and the United States

G8 dialogue:

Group of eight Gleneagles Dialogue on Climate Change, Clean Energy and Sustainable Development

GHG:

Greenhouse gases

ICC:

International Chamber of Commerce

IPCC:

Intergovernmental Panel on Climate Change

KP:

Kyoto Protocol

LDCs:

Least developed countries

MEM:

Major Economies Meeting on Energy Security and Climate Change

MRV:

Measurable, reportable and verifiable

NGO:

Non-governmental organization

QELRO:

Quantified emissions limitation and reduction objective

SBI:

Subsidiary body of implementation

SBSTA:

Subsidiary Body on Scientific and Technological Advice

UN:

United Nations

UNGA:

United Nations General Assembly

UNFCCC:

United Nations Framework Convention on Climate Change

References

  1. Abbott, K. W., & Snidal, D. (2000). Hard and soft law in international governance. International Organization, 54(3), 421–456.

    Article  Google Scholar 

  2. Afionis, S. (2008). From Montreal to Bali: The 2005–2007 European Union strategy for reengaging the United States in UNFCCC negotiations. In-Spire: Journal of Law, Politics and Societies, 3(2), 1–14. Retrieved 28 May 2009, from www.in-spire.org/archive/vol3-no2/afionis32.pdf.

  3. Bäckstrand, K. (2006). Multi-stakeholder partnerships for sustainable development: Rethinking legitimacy, accountability and effectiveness. European Environment, 16(5), 209–306.

    Article  Google Scholar 

  4. Biermann, F., Pattberg, P., Van Asselt, H., & Zelli, F. (2009 forthcoming). The fragmentation of global governance architectures: A framework for analysis. Global Environmental Politics, 9(4) (in press).

  5. Bilder, R. (2000). Beyond compliance: Helping nations cooperate. In D. Shelton (Ed.), Commitment and compliance. The role of non-binding norms in the international legal system. Oxford: Oxford University Press.

    Google Scholar 

  6. Bodansky, D. (2009). Legal form of a new climate agreement: Avenues and options. Washington, DC: Pew Center on Global Climate Change. Retrieved 28 May 2009, from http://www.pewclimate.org/docUploads/legal-form-of-new-climate-agreement-paper.pdf.

  7. Breidenich, C., & Bodansky, D. (2009). Measurement, reporting and verification in a post-2012 climate agreement. Washington, DC: Pew Center on Global Climate Change. Retrieved 28 May 2009, from http://www.pewclimate.org/docUploads/mrv-report.pdf.

  8. Clémencon, R. (2008). The Bali road map A first step on the difficult journey to a post-Kyoto protocol agreement. Journal of Environment and Development, 17(1), 70–94.

    Article  Google Scholar 

  9. Dai, X. (2007). International institutions, and national policies. Cambridge: Cambridge University Press.

    Google Scholar 

  10. Karlsson, S. (2009, February). G8 climate action from Gleneagles to Hokkaido—dying flare or lasting flame? Paper presented at the International Studies Association Conference, New York, February 2009.

  11. Lawrence, P. (2009). Australian climate policy and the Asia Pacific partnership on clean development and climate (APP): From Howard to Rudd—continuity or change? International Environmental Agreements: Politics, Law and Economics, 9(3). doi:10.1007/s10784-009-9102-1.

  12. McGee, J., & Taplin, R. (2006). The Asia–Pacific partnership on clean development and climate: A complement of competitor to the Kyoto protocol? Global Change Peace and Security, 18(3), 173–192.

    Article  Google Scholar 

  13. McGee, J., & Taplin, R. (2009). The role of the Asia Pacific partnership in discursive contestation of the international climate regime. International Environmental Agreements: Politics, Law and Economics, 9(3). doi:10.1007/s10784-009-9101-2.

  14. Oberthür, S., & Gehring, T. (Eds.). (2006). Institutional interaction in global environmental governance. Cambridge, MA: The MIT Press.

    Google Scholar 

  15. Rajamani, L. (2008). From Berlin to Bali and beyond: Killing Kyoto softly? International and Comparative Law Quarterly, 57, 909–939.

    Article  Google Scholar 

  16. Shelton, D. (2000). Introduction: Law, non-law and the problem of “soft law”. In D. Shelton (Ed.), Commitment and compliance: The role of non-binding norms in the international legal system. Oxford: Oxford University Press.

    Google Scholar 

  17. Skjaerseth, J. B., Stokke, O. S., & Wettestad, J. (2006). Soft law, hard law, and effective implementation of international environmental norms. Global Environmental Politics, 6(3), 104–120.

    Article  Google Scholar 

  18. Skodvin, T., & Andresen, S. (2009). An agenda for change in U.S. climate policies? Presidential ambitions, and congressional powers. International Environmental Agreements: Politics, Law and Economics, 9(3), this issue.

  19. Stokke, O. S. (2001). The interplay of international regimes: Putting effectiveness theory to work. FNI Report 14/2001. Lysaker: Fridtjof Nansen Institute.

  20. United Nations Framework Convention on Climate Change (1995). Decision 1/CP.1. The Berlin mandate. Review of the adequacy of Article 4, paragraph 2(a) and (b), of the Convention including proposals related to a protocol and decisions on follow-up. Bonn: UNFCCC. Retrieved 28 May 2009, from http://unfccc.int/resource/docs/cop1/07a01.pdf.

  21. United Nations Framework Convention on Climate Change (2007). Decision-/CP.13. Bali action plan. Bonn: UNFCCC. Retrieved 28 May 2009, from http://unfccc.int/files/meetings/cop_13/application/pdf/cp_bali_action.pdf.

  22. Van Asselt, H. (2007a). Achieving unity within diversity—interactions between the climate regime and the Asia–Pacific Partnership on clean development and climate. Paper presented at the Amsterdam Conference on Earth System Governance, Amsterdam, May 2007.

  23. Van Asselt, H. (2007b). From UN-ity to diversity? The UNFCCC, the Asia–Pacific Partnership, and the future of international law on climate change. Carbon and Climate Law Review, 1(1), 17–28.

    Google Scholar 

  24. Young, O. (2002). The institutional dimensions of environmental change: Fit interplay, and scale. Cambridge, MA: The MIT Press.

    Google Scholar 

Download references

Acknowledgments

Many thanks are due to Christian Holtz, Patrick Finnegan, Kaisa Kosonen, Tirthankar Mandal, and Steve Sawyer for their support and informal advice in the UNFCCC corridors. I would also like to thank the referees, and especially the editors, Harro van Asselt and Sylvia Karlsson-Vinkhuyzen, for their guidance.

Author information

Affiliations

Authors

Corresponding author

Correspondence to Antto Vihma.

Rights and permissions

Reprints and Permissions

About this article

Cite this article

Vihma, A. Friendly neighbor or Trojan Horse? Assessing the interaction of soft law initiatives and the UN climate regime. Int Environ Agreements 9, 239–262 (2009). https://doi.org/10.1007/s10784-009-9100-3

Download citation

Keywords

  • Climate change
  • UNFCCC
  • Asia–Pacific Partnership
  • Major economies meeting
  • G8
  • Institutional interaction
  • Soft law
  • Hard law