Foreign Relations of the United States, 1981–1988, Volume XLI, Global Issues II

352. Telegram From the Department of State to Multiple Diplomatic Posts¹

Washington, March 30, 1985, 0546Z

96727. Subject: Conference of Plenipotentiaries for Protection of the Ozone Layer: Report of the U.S. Delegation.

1. Summary: The Conference of Plenipotentiaries on the Protection of the Ozone Layer (18–22 March 1985) was successfully concluded, with the quote Vienna Convention for the Protection of the Ozone Layer unquote being opened for signature. Forty-one (41) countries participated (see para 21) and twenty (20) countries and the EEC signed the convention (see para 22). OES Assistant Secretary James Malone signed convention for US. The two major issues remaining at the beginning of the conference, settlement of disputes and the adherence by regional economic integration organizations (REIO’s), were resolved after intensive negotiations along the lines of the U.S. proposals. As neither Toronto Group (Australia, Canada, Finland, Norway, Sweden, Switzerland, U.S.) nor EC had changed their respective positions on control measures for chlorofluorocarbons (CFC’s) since the January meeting of the ad hoc working group, there were no further negotiations in Vienna on a CFC protocol. U.S. continued to resist EC proposals involving production capacity cap on CFC’s. Instead, we proposed a resolution which, after hard negotiations, was passed by the conference. The resolution: (a) called for continued negotiations based on updated scientific and economic research, (b) proposed a workshop on economic implications of various ways to protect the ozone layer, (c) authorized the Executive Director of UNEP to convene a diplomatic conference, if possible in 1987, to adopt a protocol and, (d) urged states to control their emissions of CFC’s pending entry into force of a protocol. With release of NASA/WMO-sponsored international scientific assessment not expected until later this year, most delegations and UNEP agreed that further negotiations on a protocol would probably not take place before spring 1986.

2. UNEP Executive Director Tolba’s keynote speech warned of potential dangers to future generations from ozone depletion and noted that this convention marked the first global anticipatory approach to an environmental issue. Despite sometimes hard negotiations between U.S.-led Toronto group and EC, atmosphere was friendly and cooperative. Austrian Chairman (Lang, MFA) proved effective mediator at critical moments. Several LDC’s, notably Argentina, Brazil, and Egypt, played active and generally constructive roles. Soviets stuck to the substance and also signed the convention. Japan did not sign. Meeting was free from irrelevant political controversy. End summary.

3. General Business. The meeting was opened by Tolba, and a welcoming address by Kurt Steyrer, Austrian Minister for Health and Environmental Protection. Winifred Lang (Austria) was elected President. Vice Presidents included Nascimento E Silva (Brazil), Mohammed El-Taher Shash (Egypt), Rune Loenugren (Sweden), and Yuri Sedunov (USSR). Willem Kakabeeke (Netherlands), who served as rapporteur, and Alberto Daverede (Argentina), who served as Chairman of the Drafting Committee, completed the Bureau. A quick U.S. intervention to expand the Bureau ensured the Toronto Group’s representation via Sweden.

4. Settlement of Disputes. Consideration of Article 11 on settlement of disputes was taken up by an informal working group chaired by the rapporteur. The group agreed to focus discussion on the U.S. draft,² which provided for quote opting in unquote to third party dispute settlement, and a Swedish paper, based on the U.S.’ text, which provided for quote opting out unquote. After an unexpectedly short discussion (and without real resistance from Sweden), the working group, subject to USSR reservation on compulsory conciliation, agreed to use U.S. text and opting in approach as basis for further work. In face of strong arguments by U.S. and others that U.S. text presented a balanced package compromise, Soviets acquiesced in compulsory conciliation. While noting appreciation to U.S. for its efforts in producing an annex on arbitration, conference decided that there was insufficient time to complete a text. Instead, a provision was inserted in the U.S. draft calling upon the conference of the parties to adopt arbitral procedures at its first meeting. (Sweden offered to assist the U.S., if so requested, in presenting a text at that meeting.)

Australia proposed that the Conference of the Parties also be charged with preparing more detailed conciliation procedures. While many in the group, including the U.S., noted the merits of the proposal, Australia withdrew it when it appeared that the extra element might cause an unravelling of the compromise. The U.S. text, as modified, was subsequently adopted by consensus by the plenary, with a few minor drafting changes.

5. At the conclusion of the conference, Australia, Austria, Belgium, Canada, Chile, Denmark, Finland, France, the FRG, Italy, Netherlands, New Zealand, Norway, Sweden, Switzerland, and the U.K. joined in a declaration, appended to the final act,³ expressing their regret that a system of compulsory third party dispute settlement (as opposed to opting in,) was not provided for in the convention and appealed to states to so opt in as provided for in Article 11 of the convention. (Comment: It is interesting that, with such an apparent array of support for compulsory dispute settlement, the opting in approach was adopted so easily and quickly. Some of the countries named above had never publicly spoken in support of compulsory dispute settlement at any time during the more than three years of negotiations. It might be that, once it was finally agreed that there would be an opting in procedure, it was not all that difficult to take a strong stand on compulsory dispute settlement via a resolution. End comment.)

6. Participation by Regional Economic Integration Organizations (REIO’s). Resolution of this issue proved, as expected, to be the toughest issue of the conference. As U.S. was advised in advance, the EC came to the meeting with position taken in Council to oppose any kind of member state qualification to EC adherence (FYI: U.K. (protect) informed U.S. delegation that U.K., Denmark, and Netherlands (which later reversed its stand) had opposed EC position, initially proposed as a matter of principle by France, which had not expected support for its proposal. End FYI.)

7. Consideration of this issue was almost entirely handled through informal meetings, including meetings with the conference president. Representatives from various regional groupings, including USSR and Canada, were involved. The view generally expressed was that the convention could not discriminate in favor of the EC as opposed to other regional organizations. (In this regard, Egypt raised some potentially troublesome questions as to whether organizations eligible to participate in convention had to be quote economically integrated unquote and noted the Arab League as an example.) There was general agreement that for regional organizations to adhere to the convention, they had to have competence over matters governed by the convention and the legal capacity to enter into international agreements covered by those matters. Egypt made a formal declaration, the gist of which was that subject to their having such competence, the Arab League and the OAU were not ruled out.

8. The EC initially took an unyielding position on any requirement for member state adherence in addition to the commission itself, asserting that the U.S.-proposed language quote subordinated unquote the EC and challenged its very existence. EC Legal Director-General Ellerman arrived from Brussels March 19 and, in meeting he requested with U.S. representatives Malone and Benedick, insisted that, if the U.S. did not change its position, EC and member states would not sign the convention. U.S. reps resisted EC interpretation of quote subordination unquote noting that our primary concern was that parties to a convention be able to fulfill all of its obligations and responsibilities and that, if an REIO did not have exclusive competence in the subject matter, this lacuna needed to be filled by one or more member states. U.S. also noted that this view was shared by a number of other delegations, including Canada, Australia, and some Latin countries, in addition to the USSR. EC attempt to portray issue as EC–U.S. confrontation was thus frustrated, and both Tolba and the Austrian Chairman put heavy pressure on EC to negotiate.

9. Later on March 19, the U.S. informally circulated the REIO text attached to its position paper⁴ to other delegations and to EC, as a possible basis for compromise. Not only EC (which had been provided text along similar lines last January) but also EC member states indicated that they had never seen text. In any event, such disavowal may have provided useful face-saving mechanism for EC which, after communication with Brussels, indicated its general acceptance of U.S. draft with minor changes—much to the relief of rest of conference.

10. EC did not want to have a blunt statement, as contained in the U.S. draft, providing for an REIO to have one vote if none of its member states were party to the convention or relevant protocols. Some complex drafting managed to produce the same effect, but in a less direct way. After a detailed explanation of draft to USSR, production by EC of a short paper as to its legal competence to become party to the convention, and EC–USSR bilateral discussions, USSR indicated its acceptance of U.S. draft as modified. The final voting text states the principle that each party has one vote, but that REIO’s could exercise a number of votes equal to the number of their members who are party to the relevant instrument, and that neither REIO’s nor member states can exercise their right to vote if the other does.

11. U.S. made declaration at conclusion of conference (appended to Final Act) that it understands new article on voting to provide that when an REIO is a party to the convention or relevant protocol, without any of its member states being party, it gets one vote only; further, that there could be not double voting by any REIO and its member states. This declaration was shown in advance to EC delegation, who understood it and made no objection.

12. (Comment: EC expressed appreciation informally to U.S. for our efforts in seeking a compromise on this issue. Not unexpectedly, FRG delegation informally mentioned to U.S. delegation that text should be seen only in context of this convention and should not be necessarily regarded as a precedent. End comment.)

13. Definition of Adverse Effects. Pursuant to a New Zealand suggestion, the conference agreed to add quote effects on materials useful to mankind unquote to the definition of adverse effects consistent with one reference thereto in Article 3 on research and monitoring and in Annex 1 on research and monitoring.

14. CFC Resolution. After intensive negotiations, the conference adopted a resolution on chlorofluorocarbons. The text is close to the draft text developed by the Toronto Group (TG). Work on the resolution took up virtually the entire informal working group meeting (March 14–15), and negotiations between the TG and the EC continued during the conference itself. At the beginning of the informal working group meeting, TG members expressed their preference for the protocol developed by the ad hoc working group in January with the multi-option alternative for the control article. Noting that this would be unlikely, however, U.S. indicated it could accept a resolution aimed at continuation of negotiations. This was accepted as reasonable by all parties, and the chairman convened a small drafting group with representatives of TG, EC, LDC’s, Soviets, and Japan.

15. The main purpose of this resolution was to demonstrate that, after two years of negotiations on a protocol to regulate CFC emissions, the International Community wished to continue this work, based on updated scientific and economic research. While the EC had taken certain measures, primarily a production capacity cap, and the U.S., Canada, and others had banned nonessential CFC use in aerosols, other major producers, notably USSR and Japan had done virtually nothing, and the question of potential future CFC production by LDC’s was unresolved. Thus, due to the global nature of the problem of ozone depletion, some global harmonization of regulatory policies appears necessary.

16. The text of the resolution, appended, represents a true compromise, after days of intensive negotiation and informal meetings. The TG originally wanted a statement of intent by producer countries to reduce CFC’s in aerosols by at least 50 percent from peak year production during the interim period while a protocol was developed, but the EC, although currently at 38 percent, resisted any fixed number. The EC also wanted explicit recognition of the production capacity cap in this paragraph as equivalent in effect to the aerosol reduction, but this was resisted by U.S. and TG. The resulting compromise paragraph 6 urges states quote to control their emissions of CFC’s, inter alia in aerosols, by any means at their disposal, including controls on production or use, to the maximum extent practicable unquote. (FYI: during negotiations on this para, several TG countries—Canada, Sweden, Finland, Australia—expressed the view that, if it was impossible to get a figure of at least 50 percent, they preferred strong, nonquantitative language. End FYI)

17. Another contentious issue was whether there should be a fixed deadline for completion of work on a protocol, to encourage serious discussions. This was resolved by a U.S.-proposed compromise calling on the UNEP Executive Director to convene a new diplomatic conference quote if possible in 1987 unquote. All parties agreed on the necessity of basing any protocol on sound scientific research, and all endorsed convening a workshop to examine economic implications of alternative strategies for protecting the ozone layer

18. By Thursday⁵ noon, agreement was reached with the EC on all issues. In the afternoon the chairman presented it to the full meeting and was of considerable assistance in resisting attempts by Spain, Egypt, and Japan to tamper with this text. The full text of the resolution is in para. 24.

19. The only other resolution of significance noted the willingness of UNEP to contribute to the costs of the interim secretariat and noted with appreciation the willingness of both UNEP and WMO to be the permanent secretariat. The EEC noted that it would contribute to the permanent secretariat.

20. Conclusion, the U.S. had a significant impact on the outcome of the negotiations, mainly in corridors, informal meetings, and in the drafting committee. The U.S. was instrumental not only in achieving compromise on the settlement of disputes and REIO issues, but also on a resolution which, while continuing international negotiations on a protocol, did not prejudge any results and stressed the importance of sound scientific research and economic analysis.

21. Participating Countries. Countries participating in the conference included Algeria, Argentina, Australia, Austria, Belgium, Brazil, Bulgaria (observer), Byelorussian SSR, Canada, Chile, China (observer), Denmark, Ecuador, Egypt, Finland, France, the FRG, Greece, Indonesia (observer), Ireland, Italy, Japan, Luxembourg, Mexico, Morocco, Netherlands, New Zealand, Nigeria, Norway, Peru, Philippines, Senegal, Spain, Sweden, Switzerland, Tunisia (observer), Ukrainian SSR, USSR, U.K., U.S., Uruguay (observer), Venezuela, and Yugoslavia. Intergovernmental organizations represented by observers included WMO, UNIDO, EEC, OECD, CEFIC, and the ICC.

22. Countries signing the convention included Argentina, Belgium, Byelorussian SSR, Canada, Chile, Denmark, Egypt, Finland, France, the FRG, Greece, Italy, Netherlands, Norway, Peru, Sweden, Switzerland, Ukrainian SSR, USSR, and the U.S. The EEC also signed the convention. Several other countries, including Australia, and U.K., indicated their intention to sign in the near future

23. Future Work. Note to EPA: Rapid action is needed in the U.S. to begin organizing the economic workshop (see para 24 (2) below). While the workshop would probably be held in Europe to attract the maximum number of European participants, the U.S. should take the lead in determining the host government and in planning the workshop. The EPA also needs to determine if it wishes to co-sponsor such a workshop

24. Text of quote Resolution on a Protocol Concerning Chlorofluorocarbons unquote.

The Conference

Noting with appreciation that the Convention for the Protection of the Ozone Layer was opened for signature in Vienna on 22 March 1985,

Bearing in mind decision 8/78 adopted on 29 April 1980 by the Governing Council of the United Nations Environment Programme (UNEP),

Considering that the convention is an important step to protect the ozone layer from modifications due to human activities,

Noting that Article 2 of the Convention establishes an obligation to take appropriate measures to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer,

Recognizing the possibility that world-wide emissions and use of fully halogenated chlorofluorocarbons (CFC’s) and other chlorine-containing substances can significantly deplete and otherwise modify the ozone layer, leading to potentially adverse effects on human health, crops, marine life, materials and climate, and recognizing at the same time the need to further assess possible modifications and their potentially adverse effects,

Mindful of the precautionary measures for controlling emissions and use of CFC’s that have already been taken at national and regional levels, but recognizing that such measures might not be sufficient for protecting the ozone layer,

Determined therefore to continue negotiations on the development of a protocol to control equitably global production, emissions and use of CFC’s,

Mindful that special consideration should be given to the particular situation of developing countries,

Mindful also of the relationship between the level of industrialization of a state and its responsibilities for the protection of the ozone layer,

Noting the considerable progress made by the ad hoc working group of legal and technical experts for the elaboration of a global framework convention for the protection of the ozone layer to develop a protocol concerning CFC’s, but further noting that the working group was not in a position to complete its work on the protocol,

(1.) Pending the entry into force of the convention, requests the Executive Director of UNEP, on the basis of the work of the ad hoc working group, to convene a working group to continue work on a protocol that addresses both short and long term strategies to control equitably global production, emissions and use of CFC’s, taking into account the particular situation of developing countries as well as updated scientific and economic research;

(2.) Urges all interested parties, in order to facilitate work on a protocol, to co-operate in studies leading to a more common understanding of possible scenarios for global production, emissions and use of CFC’s and other substances affecting the ozone layer and the costs and effects of various control measures and, to this end, requests such parties to sponsor, under the patronage of UNEP, a workshop on this subject;

(3.) Requests the working group, in further developing a protocol, to take into account, inter alia, the report of the Co-ordinating Committee on the Ozone Layer on its eighth session as well as the 1985 World Meteorological Organization assessment of the current understanding of the physical and chemical processes which control atmospheric ozone;

(4.) Authorizes the Executive Director, in consultation with the signatories and pending the entry into force of the convention, to convene a diplomatic conference, if possible in 1987, for the purpose of adopting such a protocol;

(5.) Appeals to signatories to the Convention and to other interested parties participating in the preparation of a protocol to make available financial means to support activities envisaged under the above paragraphs;

(6.) Urges all states and regional economic integration organizations, pending entry into force of a protocol, to control their emissions of CFC’s, inter alia in aerosols, by any means at their disposal, including controls on production or use, to the maximum extent practicable.⁶

Shultz

1. Source: Department of State, Environmental Issues, 1979–1993, Lot 93D395, Ozone. Limited Official Use. Drafted by Hajost, Losey, and Weil; cleared by Benedick and Mansfield; and approved by Malone. Sent to Abu Dhabi, Algiers, Athens, Bangkok, Bern, Bogota, Bonn, Brasilia, Brussels, Buenos Aires, Cairo, Canberra, Caracas, Copenhagen, Geneva, Helsinki, Jakarta, Kuwait City, Lima, London, Manila, Mexico City, Moscow, Nairobi, New Delhi, Oslo, Ottawa, Paris, Rabat, Rome, Santiago, Stockholm, The Hague, USUN New York, and Vienna.
2. Not further identified.
3. See UN Environment Programme, “Vienna Convention for the Protection of the Ozone Layer.” (accessed online)
4. Not found.
5. March 21.
6. On September 4, 1985, the President transmitted the Vienna Convention to the Senate for ratification. See Public Papers: Reagan, 1985, Book II, pp. 1038–1039.