350. Action Memorandum From the Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs (Malone) to Secretary of State Shultz1

SUBJECT

  • Circular 175: Request for Authority to Sign the Convention for the Protection of the Ozone Layer

ISSUE FOR DECISION

Whether to authorize signature by the United States of the Convention for the Protection of the Ozone Layer (“Convention”), which would provide for research, monitoring, and information exchange in connection with protection of the ozone layer. A Conference of Plenipotentiaries is scheduled for March 18–22 in Vienna, convened under the auspices of the United Nations Environment Program (“UNEP”), where it is planned that negotiations will be concluded and the draft Convention adopted and opened for signature.

ESSENTIAL FACTORS

There is general scientific agreement that human activities are substantially altering the chemistry of the atmosphere in ways which [Page 998] threaten both the quantity and the vertical distribution of the ozone layer, with potentially harmful impacts on health, climate, and plant and oceanic food cycles. There are admitted gaps in the knowledge, and there is agreement that research needs to be continued. Thus, US industry, non-governmental organizations, and congressional staff, who have been briefed recently2 and throughout the negotiations, all support the draft Convention as an important contribution to global environmental protection. It is expected that the Convention will improve international understanding of the ozone problem and would provide the additional research and information needed in deciding whether and what specific regulatory measures may be required in the future.

Circular 175 authority to negotiate an ozone layer protection convention and supporting technical and substantive annexes/protocols was granted on November 29, 1982 (Tab D).3 The diplomatic conference will conclude almost three years of UNEP-sponsored negotiations. During this time the U.S. has negotiated the Convention in good faith, and the major U.S. agencies involved (particularly State, EPA, and NASA) have consistently supported the idea of a framework Convention.

Negotiation of the Convention (Tab B)4 is essentially complete and the text is unbracketed, but two issues are expected to be considered in Vienna. These are provisions relating to the participation of regional economic integration organizations (“REIOs”) (as to which the European Community (“EC”) has expressed dissatisfaction with the existing text) and to the settlement of disputes (as to which the U.S. and others have stated an intention to reopen the negotiations). These issues are described in more detail in the attached legal memorandum (Tab C).5

The REIO issue centers on the question whether adherence by an REIO, such as the EC, which cannot presently implement the Convention without some reliance on retained member state competence, should be conditioned on requirement for adherence by at least one member state. The EC has opposed this requirement, which has been supported by the U.S. and others.

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With respect to the settlement of disputes provision, the convention does not raise the same kinds of issues as the Nicaragua case.6 On the other hand, given the general character of many of the provisions, we want to consider carefully whether we want to be bound by compulsory settlement, whether by the International Court of Justice (“ICJ”) or by arbitration. The text presently provides for both unless a party “opts-out” of the provision at the time of ratification. The sentiment of several countries, including the U.S., is that the text is not clearly drafted and requires more work. After careful review of the Convention and its negotiating history, the U.S. position is that the final text of the Convention must not provide for compulsory third party dispute settlement, including reference to the ICJ as well as to binding arbitration. With respect to any reference to the ICJ, it is desirable that a party not be required to act affirmatively to remove itself from the ICJ’s compulsory jurisdiction, although if such an “opt out” provision (properly drafted) is the only outstanding issue in an otherwise satisfactory treaty, we would propose to proceed with signature.

It is expected that these issues will be resolved in Vienna and that the Convention will be adopted and opened for signature at the conclusion of the conference. Assuming those issues are resolved to the Department’s satisfaction and no other unforseen obstacles arise, the U.S. negotiator will sign the Convention at that time. To be in the position to do so, the Delegation will provide to the Department, particularly L, daily telegraphic or telephonic reports relating to the dispute settlement and REIO texts.7 In any event, as a consequence of its participation in the diplomatic conference, the U.S. delegation may sign the “final act” of the conference, certifying that the text reported by the conference accurately represents the text adopted by the Conference.

The Convention will serve as a framework agreement for possible further measures included in future protocols. A first supporting control protocol to the Convention, which would provide for reductions in emissions of chlorofluorocarbons (“CFCs”), has been under negotiation in accordance with the Circular 175 authorization of November 29, 1982. However, the text of that protocol is not yet satisfactory, and it is not believed that any protocol will be adopted at the Vienna [Page 1000] conference. Separate authority would be requested to sign any finalized protocol. (Under Secretary Wallis has questioned with Under Secretary Schneider the wisdom of proceeding with the protocol, in view of recent scientific evidence. EPA, however, considers the development of this protocol as an important part of its overall program for protecting the ozone layer, for which it has responsibility under the Clean Air Act.)

There are two supplementary annexes to the Convention describing a variety of research and monitoring actions, as well as cooperation in information exchange and technical assistance.8 These annexes further define the research to be conducted, the chemical substances of concern, and the types of information to be collected and exchanged.

The Convention is consistent with U.S. legislation, it is expected that as implementation of the Convention evolves, further domestic actions in such areas as information collection may be required. Any domestic regulatory action required to implement the Convention would be subject to the provisions of Executive Order 12498, the Regulatory Planning Process; Executive Order 12291, Federal Regulation; and the Paperwork Reduction Act.9

The Convention would establish a Secretariat and a Conference of the Parties. Secretariat services would be provided within an existing international body (initially UNEP, and later, possibly the World Meteorological Organization—WMO) rather than through creation of a new international organization. The Convention itself contains no mandatory financial obligations (financial rules and financial provisions governing the Secretariat are to be adopted by the Conference of the Contracting Parties by consensus), but the functions of the Convention will need to be financially supported by those states that become party to it. In signing the Convention, the U.S. would be making a commitment in principle to pay its fair share of the future expenses of a small Secretariat and meetings of the Contracting Parties. The Convention calls for UNEP to provide secretariat services, absorbed in its own budget, through the first meeting of the parties (in approximately two years). The Contracting Parties will then designate a permanent Secretariat.

OMB agrees to the Circular 175 memo with the understanding that any costs associated with the Convention would be provided within existing budgetary resources.

IO raises the objection that the Administration is seeking to resist joining additional international organizations. Taking on additional [Page 1001] obligations has long-term implications. OMB is particularly concerned that assessed contributions are effectively uncontrollable. IO notes that the United States already participates in organizations such as UNEP and WMO, which IO believes have the competence to carry out the mandate of the Convention within their current and proposed budgets. In addition to the assessed contributions to support the Secretariat, becoming party to the Convention will also entail hidden costs for the travel of U.S. delegates to meetings.

However, the U.S. departments and agencies that have been substantially involved in the Convention negotiations believe that the Convention is a desirable international environmental agreement to protect the ozone layer, not only as a mechanism to exchange information and research, but also as a framework agreement for possible future protocols. Therefore, the Department would plan, providing you approve the recommendation below, to ask OMB and the Congress (assuming the Convention enters into force and the U.S. became a party after advice and consent to ratification by the Senate) to approve funding at an appropriate level beginning in the FY 1988 budget for appropriate secretariat and other expenses in support of the Convention.

Assuming WMO is selected as the permanent secretariat, funding would be included in the Department’s regular assessment to WMO. U.S. costs are tentatively estimated at approximately $60,000 annually during the first two years of operation of the Convention. (By way of comparison, the total WMO budget in FY 1985 amounts to $18.75 million, of which the assessed contribution of the U.S. is $4.6 million.)

In sum, we anticipate that no new organization will be created to serve as secretariat to the Convention. In the course of the negotiations there has been support for use of the WMO as the Secretariat, and it is likely that WMO will become the permanent secretariat to the Convention beginning in 1987 or 1988 (assuming that the Convention has entered into force). It is expected that the additional costs for the WMO budget will be about $250,000 annually. The U.S. will work to have these costs absorbed by reduction in other program costs. However, it is possible that the U.S. assessment to WMO for these additional costs of servicing the Convention will be up to $60,000 annually beginning in FY 1988. A more detailed discussion of the financial implications of the Convention is attached (Tab E).10 (As discussed in the next paragraph, the first alternative in paragraph one of the memorandum attached at Tab E is no longer being considered.)

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As the memorandum of law (Tab C) indicates, the Convention would be concluded as a treaty pursuant to Article II Section 2 of the Constitution and would require Senate advice and consent to ratification. We have determined that signature of the Convention would not have significant environmental impacts inside or outside the United States requiring further consideration under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. 4321–4370, or Executive Order 12114 of January 4, 1979. Environmental review requirements associated with future protocols for the Convention shall be examined in consideration of those protocols.

RECOMMENDATIONS

That you (1) authorize signature by the United States of the Convention for the Protection of the Ozone Layer, subject to Department concurrence in the final REIO adherence and dispute settlement texts; and (2) sign the full power at Tab A. (Opposed by IO)11

  1. Source: Reagan Library, Papers of George P. Shultz, Environment—Ozone Layer. Unclassified. Drafted by Wilson, Coe, and Hajost on February 27; cleared in IO, IO/T/SCT, EPA/OIA, NASA, NOAA, FAA, L/OES, L/T, OES, OES/E, E, OMB, EB/OIA, M/COMP, and L. Sent through Schneider. In the upper right-hand margin, McKinley wrote “Not acted upon pending further consultations with Mr. Wallis,” with the date “20 Mar.” Below that McKinley wrote: “21 Mar Mr. Wallis has withdrawn his objection to the recommendation. BMcK.” And below that he wrote “21 Mar Full power signed.” In the upper left-hand margin, a typed notation reads: “Original picked up by OES—Helen Brown on 3/21 at 7:35 p.m./JABentel.” A signed copy of the Full Power was attached at Tab A.
  2. Not further identified.
  3. Not attached. At Tab D is Circular 175 of November 23, 1982, authorizing negotiation of the Convention. See Document 349.
  4. At Tab C is a memorandum of law dated January 28; attached but not printed, is a “Draft Convention for the Protection of the Ozone Layer.”
  5. Drafted on March 15, attached but not printed.
  6. Possible reference to Nicaragua’s 1982 complaint to the UN Security Council against the United States regarding American intervention in Central America. Tab G, not attached, is telegram 48993 to multiple recipients, February 16, in which the Department transmitted proposed language regarding the settlement of disputes and asked Embassies to ask their host governments for input. (Department of State, Central Foreign Policy File, D850110–0780)
  7. Not further identified. At Tab F is a paper entitled “REIO Adherance,” which was not found.
  8. A proposed annex on arbitral procedures at Tab H was not found.
  9. References are to E.O. 12498 issued January 4, 1985; E.O. 12291 issued February 17, 1981; and P.L. 96–511, respectively.
  10. Not found.
  11. Shultz checked the approve option on March 21.