The successful development of EU international environmental policy has been the subject of much recent study within various disciplines. One promising theory for cross-disciplinary researches of EU environmental policy invokes the concept of international regime. Regime theory might expect to explain a great deal about the development of EU environmental policy in global environmental affairs. It is insightful to consider the EU environmental policy as a regime given that the regime definition most frequently cited is so broad as to certainly include the EU where ‘norms, rules and decision-making procedures in a given area of international relations’ (Krasner, 1983, p. 2) are said to be in existence. This sort of theory would enable one to consider the connections between the institutions of the EU and the member states. It may explain the inter-state relationship that lies behind the formation and development of EU international environmental policy. Te positions the EU projects in international affairs are evidently themselves the product of interest mediation and agreed bargaining directed by institutions. This paper will consider the work of both international relations (IR) and international law (IL) scholars to evaluate regime theory as instrument of EU environmental policy, using ozone layer depletion case study as specific example.
International Regime Theory
Although international regimes were used much earlier by IL as a means of giving an account of legal regulation in unregulated areas (Connelly and Smith 2002, p. 190), the regime theory has gained significance originally within the discipline of IR. The regime theory was developed to explain stability in the international system despite the absence or decline of domination (Connelly and Smith 2002, p. 202). It is only in the 1990th that regime theory has again become the focal point of legal scholars searching for ways to stimulate international cooperation (Connelly and Smith 2002, p. 210). This requires the organization into a unified pattern of the disciplines of IR and IL, the relationships between them having been one of mutual neglect, as explained by Hurrell and Kingsbury:
Regime theorists have tended to neglect the particular status of legal rules, to downplay the links between specific sets of rules and the broader structure of the international legal system, and to underrate the complexity and variety of legal rules, processes, and procedures. On the other hand, theoretical accounts of international . . . law have often paid rather little explicit attention to the political bargaining processes that underpin the emergence of new norms of international . . . law, to the role of power and interest in inter-state negotiations, and to the range of political factors that explain whether states will or will not comply with rules. (1992, p. 12)
There is no absolute agreement on what precisely forms an international regime. Goldie, in one of his works in this area, described regimes as:
(1) the acceptance, amongst a group of States, of a community of laws and of legal ideas; (2) the mutual respect and recognition accorded by certain States to the unilateral policies of others acting in substantial conformity with their own, enmeshing all the States concerned in a regime with respect to those policies; (3) a common loyalty, among a group of States, to the principle of abstention regarding a common resource. (1962, p.698)
Thomas Gehring (1990) presents a more integrated work in this area, in particular as it better addresses the role of IL in international regime theory. He identifies international regimes as the regulations, developed within the context of a consultation of parties to the regime, governing a specific area of IR. Within this structure, IL is the search for unanimity and agreement on the priorities and plans for international action. Once these are made clear, norms will develop as to how to carry out these priorities and plans, resulting in accepted norms or “shared expectations” concerning the behaviour of states (Gehring, 1990, p. 37). Certainly, this progress from priority setting to norm gradual development takes time, but it is the regime structure that allows for the process to take place at all. Thus, regimes create the building blocks for the development of norms and rules.
Development of EU Environmental Policy and Regime Theory
The influence of EU within environmental affairs cannot be disregarded as the environment in general has to a great extent become a matter of international concern. Of the many international organisations and specialised bodies dealing with environmental issues, the one mostly associated with such work is the European Union. Among other bodies and specialized agencies, the EU is most closely involved in environmental affairs.
Regime theory is the most commonly employed theoretical paradigm in the study of EU international environmental politics. The study of the EU focuses upon how the EU affects the prospects of regime-building and how it may create the path of international cooperation. By signing up to agreements on behalf of its member states, the EU increases the scope of a regime by increasing the obligations of states that may in a different way have adopted lower standards. The EU pulls states into commitments. Often, however, the ‘convoy’ analogy (Bretherton and Vogler 1997, p. 22) more precisely describes the process, whereby action is delayed by the slowest part of the train. This effect is seen during the ozone negotiations. Despite the attempts of Denmark and Germany to push things forward, the precluding tactics of France and the UK were able to ensure that on many occasions the EU was ‘condemned to immobility’ (Jachtenfuchs, 1990, p. 265). Yet, by coordinating the position of (currently) 27 member nations in environmental negotiations, the Commission makes smaller the complexity of negotiations and decreases pressures upon international organisations to perform that function.
Approaches informed by regime theory would also help to see the leadership role of the EU as an effort to originate cooperation conditional on the involvement of other parties. Hence the statement of a greenhouse gas decrease target as early as 1990 was planned as a first move in the ‘nice, reciprocate, retaliate’ strategy that Connelly and Smith (2002, p. 269 indicated is the necessary to cooperation. Paterson (1996, p. 105) notes, for example, that “The announcement of the EU target in October 1990 was explicitly designed to influence the outcome of the Second World Climate Conference and to precipitate international negotiations”.
Usually, however, IR perspectives tend to overlook the significance of intra-country dynamics to the creation of positions in international agreements. This factor severely restricts their applicability to EU decision-making development. In spite of that, in the ozone case it could be argued a combination of ‘domestic’ and international pressures best explain the role of the EU in creating and supporting the regime in question. The EU is as one unit in this case. The four relationships are: one between member states and the EU; between the EU organisations in their internal power efforts; among the boards of directors and eventually between the various boards of directors and interest groups (Matláry, 1997, p. 146).
With the EU environmental policy one clearly has a regime within a regime. Models of multi-level governance used to explain the policy development within Europe may be extended to include the international dimension. Viewed from this perspective, EU international environmental negotiations become a site of debate between transnational networks of environment departments from government and regional economic institutions working together with NGOs and sympathetic international organisations (such as UNEP), set against networks including Trade and Industry departments, business lobbies and international organisations which promote the interests of industry (such as UNIDO ( United Nations Industrial Development Organisation)) (Connelly and Smith 2002, p. 236). The interconnected groups operate horizontally and vertically and across national, regional and international levels including state and non-state players alike in strategic unions established on particular issues.
Cooperation in Environmental Problems
Collaboration is represented by the game, wherein each state follows a dominant strategy that leads to suboptimal payoffs for both. Regime theory presents the EU primarily as a tool. The EU deliberately seeks to change the system, design strategies to do so, and attempts to implement the strategies. To assess the development of EU environmental policy in environmental cooperation, then, two potential roles of the EU must be examined: the EU as tool and the EU as independent advocate. The EU helps states overcome the complexity of issues to arrive at coordination equilibrium. States usually remain concerned that others will exploit them, and the EU is needed to increase confidence in compliance. As independent actor, the EU is expected to play a significant role in environmental cooperation. Increased autonomy of the EU on some environmental issues and the increased needs of states to rely on them for collaboration and coordination allow those organizations with unified leadership and significant resources to have independent effects.
Ozone: The First Global Challenge
The development of the regime intended to limit the release into the atmosphere of ozone-depleting chemicals is in many ways a case of EU-US relations. The key turning points in the development of the process of negotiating from a framework convention at Vienna through to legally imposing an obligation protocol commitments at Montreal, London and Copenhagen reflect changes in the negotiating position of the EU and the US (Connelly and Smith 2002, p. 230).
The development of ozone polices can be traced back to 1977. The ‘can ban’ established in the US put the US in conditions to push for a global ban on CFCs. Process of negotiating moved very gradually at first against strong European opposition to cuts in CFCs, despite a Council resolution in March 1980 restricting the use of CFCs, reacting to American pressure and increasing public concern over the ozone problems. The supporters of controls (the US, Canada, the Nordic states, Austria and Switzerland), met together in 1984 to create the ‘ Toronto group’. The EU initially indicated that no controls were necessary. However, eventually it admitted that a production capacity cap may be required and presented a draft protocol that included their 1980 measures. The offered 30 per cent reduction was without difficulty achievable because use was already declining (Connelly and Smith 2002, p. 200) and in essence served to fix the status quo (Jachtenfuchs, 1990).
The deadlock that resulted between the EU and the Toronto group made certain that only a framework convention could be made at Vienna. This promised intercommunion in research and monitoring and promotion of information-sharing. At the March 1986 assemblyof the EU Council of Ministers, the EU took a position of a 20 per cent CFC production cut. This was partly impelled by the threat of unilateral action by the US to impose trade sanctions against the EU (Connelly and Smith 2002, p. 261). The Montreal Protocol later agreed in September 1987 required cuts of 50 per cent from 1986 levels of production and use of the five principal CFCs by 1999. The figure of a 50 per cent cut was established as a settlement of a dispute by concessions on both sides between the EU’s proposed freeze and the US’s proposal for a 95 per cent cut. The Protocol contained an interval for the implementation of the Protocol by less developed countries, restrictive measures on trade with non-members and an ozone fund for technology transport. This latter element of the agreement is especially important for the EU for, as Jachtenfuchs (1990, p. 272) states, ‘The success of the EU’s environmental diplomacy in this important field will to a large extent depend on how far it is able to provide technical and financial assistance to developing countries’.
As a regional economic integration organisation, the EU was granted permission to meet consumption limits together rather than country by country. This was planned to assure some transfers of national CFC production quotas among EU member-states in order to allow commercial producers in Europe to improve production processes cost-effectively. Despite this concession, some European members in the Protocol process believed that they were ‘bullied’ into an agreement favourable to US industry, dubbing the Montreal agreement ‘The DuPont Protocol’ (Parsons, 1993, p. 61). In spite of that, on 14 October 1988 the Council adopted a law, transforming every aspect of the Protocol into EU legislation. The law came into force instantly in order to emphasise the importance of the issue and to prevent trade distortions which might emerge from non-simultaneous use of the new legislation (Connelly and Smith 2002, p. 269).
At the March assembly of the EU Environment Council which took place in 1989, the UK after a long delay joined the rest of the EU in agreeing to phase-out all CFCs ‘as soon as possible but not later than 2000’ (Parsons, 1993, p. 47). At the same time France submitted to external pressure to drop its uncompromising position. The London assembly of the members in June 1990 was consequently able to agree that all entirely halogenated CFCs would be phased-out by the year 2000, with successive lessening of 85 per cent in 1997 and 50 per cent in 1995. Some member states have gone beyond the restrictions stated in the international agreements, however. Germany, for instance, has passed legislation stating that CFCs be removed by 1993, halons by 1996, HCFC 22 by 2000 and CT (carbon tetrachloride) and MC (methyl chloroform) by 1992 (Parsons, 1993).
On another hand, behind the diplomacy of the negotiations between the states, the case is in a fundamental way one of the competing positions of the chemical companies, chiefly, ICI (in the UK), Du Pont (in the US) and Atochem (in France). Industry agents served formally on European national delegations through the whole of the process. EU industrialists ‘believed that American companies had endorsed CFC controls in order to enter the profitable EU export markets with substitute products that they had secretly developed’ (Benedick, 1991, p. 123). The EU followed the industry line and reflected the views of France, Italy and the United Kingdom in its policy.
The significance of these commercial considerations is easily noticed in the persistent efforts to define cuts in HFCs and HCFCs (perceived to be the best alternative to CFCs). The EU has found it problematic to come to an agreeable position on reducing the production and consumption of these chemicals because substitute chemicals were not yet easily available. Indecision could also be explained by the fact that some European producers wanted to establish export markets for HCFCs in the less developed ‘south’. The differing commercial interests regarding the ozone issue presented the difficulty the EU faced in its effort to formulate common policy positions in international environmental process of negotiating.
This case demonstrates that ozone depletion was one of the first global environmental issues to create a coordinated and consentient international response. Despite remaining weakness in the ozone regime it is regarded to be one of the few tangible successes of EU international environmental policy taking into account that governments took action before certain proof of environmental disaster had occurred. The EU has explicit rules, agreed upon by governments, and provides a framework for the facilitation of ongoing negotiations for the development of rules of law.
Regime theory regards EU international environmental policy as a means by which states solve collective environment problems. Regime theory, as well as most current studies of cooperation in international politics, treats the EU as means to an end – as intermediate variables between states’ interests and international cooperation. The EU is an independent actor which plays an independent role in changing states’ interests – and especially in promoting cooperation.
The consideration in this paper of the ozone depletion regimes reveals that there is prospect for development in the international legal order. The picture that emerges of EU international environmental policy and politics is a complex and relating to the study of several subject disciplines. It should be noted that there is none predominant theoretical perspectives in international environmental politics adequate to explain this rich complexity. Given the complex reality of environmental cooperation between states and the context within which it develops, explaining policy processes and developments by a single theoretical perspective is an uncertain prospect. Still better understanding of the developments of EU environmental policy in these processes may be fostered by relying on a regime theory.