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C A B I N E T

43

M I N U T E

Canberra, 5 July 1989

No. 12773

Submission 6548

International Environmental Treaties

Australian Approach

The Cabinet agreed that :(a)

Australia take an active role in :(i)

strengthening existing international

legal instruments, notably the Montreal
Protocol on Substances that Deplete the
Ozone Layer; and

(ii)

developing a new draft framework

convention within an appropriate forum,
with the aim of facilitating the
adoption of international and regional
measures connected with climate change;

(b)

a comprehensive approach is needed to developing

measures on climate change, including action to
reduce the emission .of all greenhouse gases, to
improve the effectiveness of "sinks" and to
implement adaptation strategies; and

. /2

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2.
No. 12773 (Contd)
(c)

the development of appropriate international

funding and technology transfer arrangements be
explored to assist in development and
implementation of the comprehensive approach
referred to in sub-paragraph (b) above; and

(d)

Australia offer to host a negotiating session

for the development of the draft framework
climate convention referred to in sub-paragraph
(a)(

2.

ii).

The Cabinet noted :(a)

that the new convention referred to in

sub-paragraph (a) above is likely to require the
adoption of new legal principles; and

(b)

that Cabinet consideration should precede any

support by Australia in international
negotiations of new legal principles.

3.

The Cabinet also agreed that Australia take an

active role in the negotiations being convened by the United

Nations Environment Program on a proposed convention for the
protection of biological diversity.

Secretary to Cabinet

This document is the property of the Australian Government and is not to be copied or reproduced

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..

Submission No

FOR CABINET

Copy No.

6 54 8

43

Title

INTERNATIONAL

M inister

Senator the Hon Gareth Evans QC, Minister for Foreign

Affairs and Trade, the Hon John Kerin, Minister for Primary
Industries and Energy and Senator the Hon Graham
Richardson, Minister for the Arts, Sport, the Environment,
Tourism and Territories.

Purpose/Issues

E~VIRO~~NTAL

TREATIES : AUSTRALIAN APPROACH

The submission outlines the main issues arising from

proposals to draw up international conventions on climate
change and bio-diversity and recommends the approach
stralian representatives should adopt.

binet Minute No. 12416 confirmed the Government's concern

~'~-o deal positively with greenhouse issues, and Cabinet
inute No. 12288 endorsed a strengthened, better
coordinated Australian response to the developing
international debate on environmental issues.
Sensitivity /Criticism

Both the public generally, and environment and industry

groups will criticise any failure to act globally on
climate change and bio-diversity issues to the detriment of
Australia's interests.
None at this stage.

Legislation
involved

ency:
1... !tical/significant
dates

)'lsultation:
Ministers/Depts
consulted

Is there
agreement?

Timing/handling of
announcement

Australia will need to have a broad position on climate

change at least by the 44th session of UNGA (September,
1989), and a substantive position on several of the major
issues by the time of the Hague Mini~terial Conference in
November 1989. Negotiations for conventions on climate
change and on bio-diversity will commence in early 1990.
Departments of the Prime Ministei and Cabinet;
Attorney-General's; Industry, Technology and Commerce;
Treasury; Finance; Administrative Services; Community
Services and Health.
No.

(See comments at

C)

To be included in the Prime Minister's statement on the

environment in July
89

Cost

Attacr~ent

Fin Yr (

90

90
Fin Yr (

91

91
)

92

Fin Yr (

The two Conventions are unlikely to be ready for adoption

before 1992. It is not possible to predict whether they
will have funding implications.

This document is the property of the Australian Government and is not to be copied or reproduced

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CLIMATE CHANGE : BACKGROUND

The extent and distribution of greenhouse-induced
warming is not yet known. It is widely agreed that some
global warming is taking place and will continue as a
result of the greenhouse effect. In developing policy
responses to climate change it is important to allow for
the long lead times involved in controlling likely
greenhouse effects. The preferred approach is to take
actions now that will help to achieve both greenhouse and
other policy goals.
2.
Strategy elements already approvec by Cabinet include
active involvement in and support for. the WMO-UNEP
Intergovernmental Panel on Climate Change (IPCC) and the
development of framework conventions on the protection of
the atmosphere and on climate change, with indivicual
protocols to follow on specific issues as scientific
knowledge and public opinion permit. All governments have
been invited to submit comments to Working Group III of the
IPCC (Response Strategies) on the scope for strengthening
existing instruments, whether a new framework convention is
required on climate. change, and if so, what elements it
might include.
CLUIATE CHANGE ISSUES
3.
Existing international environmental agreements, apart
from those dealing with ozone depleting substances, only
incidentally address greenhouse issues. They do not
together address the large number of diverse and
inter-related activities relevant to global climate change
and its effects. Others are of limitec geographical scope.
The review of the Montreal Protocol on Substances that
Deplete the Ozone Layer to eliminate the procuction and use
of CFCs and halons by the year 2000 should be expedited.
These are particularly active greenhouse gases which are
still increasing rapidly and are capable of being
controlled.

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4.
Australia has already supported UN General Assembly
resolution 43/53, the Hague Declaration on Protection of
the Atmopshere of 11 March 1989 and a United Nations
Environment Program (UNEP) Governing Council Decision
adopted on 24 May 1989, all of which support the
development of a new international convention on climate
change. Australia's self interest coulc be comprowisec by
an uncontrolled random process of legal and other responses
to climate change. Australia should play an active role in
global efforts to elaborate a comprehensive convention on
climate change to ensure that it is based on sound
environmental and economic principles and meets Australia's
interests.
5.
~e are a large exporter of energy (energy exports
represented 17 percent of exports in 1987-88); fossil fuel
based energy is a major source of global greenhouse
emissions (around 50 percent) and energy-based activities
will be a major area of adaptation to global warming.
Australia is a large exporter of agricultural commodities.
Agricultural production is not only an important source of
greenhouse emissions, but will be itself significantly
affected by greenhouse impacts (methane in particular) .
Agriculture represented 38 percent of exports in 1987-88.
Australia's fragile agricultural environment is
particularly vulnerable to soil degradation, rainfall
variability and other climate-relatec factors. The urban
settlement pattern (over 80 percent of the population is
concentrated in the south east corner of the country) is
vulnerable to the impacts of climate change. Australia's
long coastline and its disproportionately great share of
the world's biological diversity make it uniquely sensitive
to the impacts of climate change. Unless these issues are
addressed urgently and effectively, any compensating gains
for Australia from climate changes will not be realised.
There are also likely to be impacts for Australia from
problems arising from climate change in the region,
particularly in relation to the small island countries.

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4.

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6.
A framework convention is essential in order to enable
an integrated approach to these issues and those set out
below. But it should be developed and implemented in
conjunction with other appropriate responses to climate
change. These include purely domestic action for which
appropriate principles (eg to deal with pollution from
diverse sources) should be developed, the vesting in
existing international organisations of new
responsibilities and powers and other international action
with particular emphasis on Australia's regional interests.
As implementation of a framework convention will touch upon
the States' and Territories' responsibilities, there is a
need for close and ongoing consultation with their
Governments.
7.
Elements for inclusion in a framework convention will
most likely include general obligations and principles,
cooperation, response mechanisms, monitoring, liability and
compensation, and institutional arrangements. These
elements are further elaborated in Attachment A. Ministers
will need to be approached again for endorsement of
specific proposals once the negotiating process has
commenced.
8.
There is general agreement that any convention will
have to addr~ss all aspects of the climate change issue,
namely, limits on emissions, improving the effectiveness of
"sinks" (ie. natural methods of absorbing or destroying
greenhouse emissions) and the necessity of adapting to the
impacts of climate change. Specifically, governments will
need to consider limits on all greenhouse gas emissions,
the impact of deforestation, reafforestation and other
human activities on "sinks", and the scope for developing
adaptation policies in regard to matters such as coastal
zone management, agriculture, urban settlement, public
health and protection of unmanaged resources. In ceveloping
creative approaches to these matters a full range of
implementation mechanisms will need to be considered,

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including legal measures, economic measures, funding

transfers, technology transfers, public education and
scientific and research interchanges.
9.
The two key issues for Australia are the need for
positive action and the need to develop funding mechanisms
to facilitate structural change in countries disadvantaged
by an obligation to implement policy responses. With regard
to the former we need to address positively the issue of
setting objectives for the reduction or elimination of
greenhouse emissions. On the question of liability we will
need to ensure that Australia could only be accountable for
emissions directly arising from its own resource use and
not for emissions arising from the use by other countries
of resources exported from Australia. With regard to
compensation, Australia must be willing to accept the need
for financial and technological transfers to occur,
particularly if developing countries are going to respond
positively to the need for a convention. The critical role
of these types of transfers has been made clear in the
negotiation of international instruments on ozone depleting
substances, where developing countries are still reluctant
to become active participants without outside help.
BIO-DIVERSITY : BACKGROUND AND ISSUES
10. The UNEP Governing Council in May 1989 agreed that
proposals for a convention on the protection of biological
diversity should be progressed urgently. Australia has a
disproportionately high biological diversity and has
consistently supported this initiative. Details are
contained in Attachment B.

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6.

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RECOMMENDATIONS
11.

We recommend that

(a)

Agree that Australia take an active role in:

(i) strengthening existing international legal
instruments, notably the Montreal Protocol on
Substances that Deplete the Ozone Layer; and
(ii) developing a new draft framework convention,
preferably for consideration at the proposed UN
Conference on the Environment and Development in
1992, with the aim of facilitating the adoption
of international and regional measures connected
with climate change;
Endorse a comprehensive approach to developing
measures on climate change, inclucing the need for
action to reduce the emission of all greenhouse gases,
to improve the effectiveness of "sinks" and to
implement adaptation strategies;
Endorse the need to explore the development of
a~~ropriate international funding and technology
transfer arrangements to assist in development and
implementation of the comprehensive approach referred
to in sub-paragraph (b);
Note that the new convention referred to in
sub-paragraph (a)(ii) above may require the adoption
of new legal principles, in which event a further
submission would need to be brought forward for
Cabinet's consideration; and
Agree that Australia take an active role in the
negotiations being convened by the United Nations
Environment Progam on a proposed convention for the
protection of biological diversity.

(b)

(c)

(d)

(e)

GARETH EVANS
3 July 1989

Ca~inet:

JOHN KERIN
3 July 1989

GRAHAM RICf~RDSON
3 July 1989

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1.

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ATTACHMENT A

ELEMENTS FOR INCLUSION IN A FRAMEWORK

CLitviATE CHANGE

CO~~ENTION

ON

The fundamental legal obligation would be for states

parties to take all appropriate measures to limit,
gradually reduce and control any atmospheric interference
which in an aggregate sense endangers human life or the
earth's capacity to sustain life processes, arising from
human activities under their jurisdiction or control, and
take all necessary action to acapt to the impacts of
climate change. Development will need to be pursued in a
manner which is not likely to affect significantly the
earth's climate. States will need to act locally in
accordance with global environmental principles and
priorities.
2.
The convention should require cooperation among the
parties on research, exchanges of information, monitoring
and harmonization of policies, and the transmission of
information to non-parties. It may also foster the
development of a mechanism for providing prior notice and
environmental impact assessment of planned activities.
3.
The convention should reflect a comprehensive approach
to climate change and its impacts and the broadest possible
range of res ponse and monitoring mechanisms. There should
be a requirement on parties to the convention to submit
national reports to an international bocy which would have
the role of monitoring steps taken by parties to the
convention to meet their obligations. There should also be
recognition of the need for different approaches and time
frames for different categories of countries according to
their relative stage of development.
4.
It is essential that emphasis be placed upon the
limitation of activities which have or are likely to have
an adverse impact on the world's climate, and upon

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ATTACHMENT A
adaptation strategies. There may also be a place for State
liability and compensation principles for extra-territorial
damage as an adjunct to prevention and adaptation.
Existing principles will be of some use, but will be
limited by difficulties in establishing causation. New and
innovative principles on liability and global burden
sharing may be required. Technological and financial
assistance, the establishment of international compensation
funds and insurance schemes should all be examined as
potential parts of a compensation regime. Emphasis should
also be placed upon prior notice requirements, procedures
for the effective settlement of disputes and duties to
assist with response action to meet urgent situations.
5.
Australia's strong preference is to maximize the use
of existing international institutions in coordinating,
monitoring and implementing new environmental initiatives.
To that extent the convention should go no further than
designating competent State authorities and existing
international institutions to oversee implementation of the
convention, monitor activities and progress on control
measures, and facilitate consultations and notification.
The issue of compulsory third party settlement of disputes
(ICJ and arbitration) should also be addressed.

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9.

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ATTACHMENT B

BIOLOGICAL DIVERSITY CONVENTION

Extinction and threatened extinction of species of
flora ad fauna is a problem of increasing urgency globally.
Experts of the United Nations Environment Program (UNEP)
have reported that 100 species are being lost every day
(and looming climate effects will exacerbate the
situation). A quarter of the earth's 5 to 30 million
plants, animals and microorganisms are considered to be at
serious risk of extinction within 20 to 30 years.
Rainforests which contain an enormously varied biota are a
good example of ecosystems where particular damage is
occurring.
2.
There has been increasing attention internationally to
the development of a convention with a comprehensive scope
to adcress the conservation of biological diversity. The
International Union of Conservation of Nature and Natural
Resources (IUCN) has been active in promoting this
proposal, as have several Australian conservation groups.
3.
There are already several international agreements of
a multilateral, regional or bilateral character which
address parts of the issue (for example wetlands, migratory
birds and animals, whales). UNEP has identified the need
for a comprehensive umbrella convention onbiological
diversity.
4.
The draft proposals which have been put forward by
IUCN are in terms of:
(a)

protection of habitats within the framework of a

country's own plans for lane-use and species
protection;

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ATTACHMEr-71' B

(b)

coordination of existing conservation treaties;

(c)

action by parties to minimize the threat to biological

diversity from the major causes;

(d)

performance of surveys and inventories of biological

resources; and

(e)

compilation of a world list of outstanding sites.

5.
It is not clear to what extent the IUCN proposals will
set the agenda for the proposed convention which UNEP has
agreed should be developed.
6.
The UNEP Governing Council in May 1989 agreed that the
convention should be progressed urgently.
7.
Australian conservation groups (inclucing the
Australian Conservation Foundation) have shown a strong
interest in the development of the convention. They have
argued that Australia play an active part, including
Australia perhaps hosting a negotiating session.
8.
Involvement of Australia in negotiation of the
proposec convention would complement various actions by the
Government to conserve our national heritage of plants and
animals. In light of the unique and diverse biological
heritage of Australia, and our own problems to this point
with extinction of species and conservation of rare and
endangered species, it is fully appropriate that Australia
should take an active part in these treaty negotiations. It
will also be necessary that Australia is in a position to
influence the course of the negotiations to see that its
shape and content are consistent with our objectives and
needs.

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11.

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ATTACHMENT C

CONSGLTATION
The following are the full comments from the Departments
consulted:
De partment of the Prime Minister and Cabinet
2.
The Department of Prime Minister and Cabinet supports
the recommendations. It notes, however, that as Australia's
approach to negotiations on a climate change convention is
developed, it will be important to ensure that the
convention encourages effective and cost efficient policy
responses. It is vital that the many sources of greenhouse
gases and the range of available policy responses be kept
in mind. It also notes that as a major world exporter of
coal and agricultural products, the Australian economy
could be particularly vulnerable to precipitate act~on
taken to limit emissions. But as a country w~ich is
classified as developed, we would undoubtedly face very
great difficulty in persuading other countries to accept a
case for Australia receiving special financial or other
assistance.
De partment of Community Services and Realth
3.
While supporting the Submission, the Department of
Community Services and Health believes that paragraph 8
should be amended to also include reference to the impact
on health of climatic change as well as the other issues
specified in that paragraph. [Paragraph 8 of the Submission
has been amended, accordingly].
The Treasury
4.
Treasury agrees to the approach recommended in the
Submission. Australian participation in development of a
framework convention can contribute to ensuring that' a

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12.CABINET-IN-CONFIDENCE
ATTACHMENT C
convention will be effective, will adequately address the
causes of the environmental problem in line with the goal
of sustainable development and will take account of
Australian interests. Treasury notes that the approach does
not involve a commitment to specific measures at this stage.
Attorney-General's Department
5.
Attorney-General's Department agrees that Australia
should take an active role in development of a new
Framework Convention on Climate Change. This will require
adoption of new legal principles and approaches. If
Australia is to take an active part om the development of
principles at an early stage (for example in legal work,
for which Australia has pressed, in the IPCC Working Group
on response strategy) it should be in a position to make
substantive proposals. It should not wait.for negotiations
on a new Convention to actually begin as the process of
international discussions leading to such negotiations may
by that time have had a significant impact on their
ultimate direction.
6.
Attorney-General's considers that Cabinet should
endorse the need for development of new legal principles,
in the same way as it is asked to endorse a comprehensive
approach to climate change measures (recommendation (b)).
The proposed legal principles should reflect and recognize
the need to focus not on sovereignty over resources but on
the well being of human beings throughout the world. If
development of such principles requires Cabinet approval
(see recommendation (d)), officers should be tasked now to
produce a Submission seeking Cabinet approval of the
relevant principles.
7.
The Attorney-General's Department does not support the
suggestion in recommendation (a)(ii) that consideration of
a new Framework Convention should necessarily occur at the
1992 conference. It would be preferable for negotiations on

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ATTACHMENT C

this Convention to occur in a special negotiating forum

outside the largely political forum of the 1992 Conference
and to commence before that date.
Department of Finance
8.
The Department of Finance has no particular comments
for inclusion in this Submission.
Department of Administrative Services
9.
The Department of Administrative Services notes that
at the recent second session of the ~~0-UNEP
Intergovernmental Panel on Climate Change (IPCC), there
appears to be general agreement that it would be premature
to initiate formal negotiations on a framework convention
on climate at least until the Panel's first assessment
report in September 1990 ~ DAS stresses that the scientific
evidence for climate change is still equivocal and urges
that Australia aim to ensure that the international legal
developments not be allowed to move too far ahead of the
scientific understanding. We support the general approach
set out in the submission and, through the Bureau of
Meteorology and its links with the World Heteorologic..al
Organization, will aim to provide authoritative up-to-date
scientific advice as the development of the legal
principles proceeds.

Dep artment of Incustry Technology and Commerce

10. The Department of Industry, Technology and Commerce
has no objections to the proposals in Attachment A but
would note that any future funding implications would need
to be considered in the context of the Government's overall
priorities .

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