Book Chapter
Reference
The Intergovernmental Panel on Climate Change: A Singular Model of Expertise in the International Legal Order
MBENGUE, Makane Moïse
MBENGUE, Makane Moïse. The Intergovernmental Panel on Climate Change: A Singular Model of Expertise in the International Legal Order. In: Kerbrat, Y. & Maljean-Dubois, S. International Law and Environmental Challenges . Paris/Oxford : Pedone/Hart, 2011. p. 97-114
Available at:
http://archive-ouverte.unige.ch/unige:56182
Disclaimer: layout of this document may differ from the published version.
THE INTERGOVERNMENTAL PANEL ON CUMATE CHANGE (IPCC): A SINGULAR MODEL OF EXPERTISE
AT THE INTERNATIONAL LEVEL
Makane Moïse MBENGUE
In 1979, the World Meteorological Organization (WMO) in cooperation with the United Nations Environment Programme (UNEP), the Food and Agriculture Organizatiou (FAO), the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization (UNESCO), and a uon-governmental organization with a global membership, the International Council for Science (ICSU), convened the First World Climate Conference. The Conference led to some new scientific paradigms and influenced the set up of a number of scientific activities in the specific field of global climate change1• During the said conference, 300 scientists from 50 countries considered the scientific evidence, and confirmed the long-term significance for the global climate of atmospheric C02 levels, and the important role of the oceans in driving the natnral variability of climate on seasonal to inter-annual timescales.
As a result, the ICSU and the WMO decided iu 1980 to end the Global Atmosphere Research Programme' and to replace it by the World Climate Research Programme (hereinafter referred to as WCRP), with the "broad objectives of determining how far climate can be predicted and the extent of human influence on climate".3 This formally marked - at the level of the United Nations - the birth of an international expertise centered on the prediction of clirnate variability and climate change.
1 See W1v10, Resolution 9 (Cg-XV), "World Climate Programme", World Climate Conference-3, pt. J.
2 See ICSU, "ICSU and Climate Science: 1962-2006 and Beyond. From GARP to IPCC" 3 (2006), available at:
http://www.icsu.org/Gestion/img/ICSU _DOC __ DOWNLOAD/2650 _ DD _FILE _ICSU _and_ Climate _ Change.pdf (last visited 15 September 2010). As pointed out in this report: "ln 1962, following the successes of the 1957158 International Geophysical Year, the UN General Assembly jOrmally invited
!CSU to work alongside the World Meteorological Organization in developing a programme of research on atmospheric science. !CSU and WMO appointed a committee to plan what became the Global Atmo;;phere Research Programme (GARP), which was launched as a joint ICSUIWMO programme in 1967. The Global Atmosphere Research Programme was important particularly for its early recognition of the new science that could be done with satellites jOr continuous, global observation of the Earth and with computersfor modeling global atmosphere circulation".
3 ICSU, "ICSU and Cllmate Science ... ", op. cit., p. 2.
In 1987, when the WMO Congress adopted Resolution 9 (Cg-X),
"Global C!imate Change", it stressed that "the World Climate Programme, relying on Members ofWMO,jointly with International Council ofScientific Unions (ICSU) and United Nations Environment Programme (UNEF), is capable of addressing ail scientific aspects of global climate change, including the collection and analysis of data and the application of current knowledge ta aspects ofhuman endeavour."4 Thus, even ifResolution 9 (Cg- X) paved the way for the emergence of a new type of climate expertise, the prevailing vision was still that the WCRP could itself deal with all the scientific aspects of global climate change and that there was consequently no need to establish a new expert body al the international level. However, the WMO Congress aeknowledged that "participation of many disciplines is necessary to understand the effects of increasing concentrations of greenhouse gases on the earth' s climate and particularly on ways in which these changes may impact socio-economic patterns and institutions".5
The WMO Executive Council which was mandated by the WMO Congress to "keep under review existing international co-ordinating mechanisms for addressing scientific aspects of greenhouse gases"6 and "ta keep under review the progress of the World Climate Research Programme in understanding the raie of greenhouse gases within the global c!imate system and the abi/ity ta predict global climate change,"7 realized that the set up of a new institutional mechanism would be crucial. The same institutional echo was already vibrating within the UNEP where its Governing Council urged for the establishment of "an ad hoc intergovernmental mechanism ta carry out international/y co-ordinated scientific assessments of the magnitude, timing, and potential impact of c/imate change. "8 That new mechanism would improve "expeditiously scientific understanding of climate change, its causes and its consequences, as a basis for formu/ating appropriate policy response at the global, regional and national lever'. 9
Albeit being a pioneer, the WCRP expertise reflects the traditional perception of expertise, solely guided, orientated and governed by sound science. The 1993 WCRP Agreement between the WMO, the ICSU and the Intergovemmental Oceanographic Commission sheds light on that dimension of the WCRP expertise. Annex A to the Agreement emphasizes that the general objectives of the WCRP are to determine "the extent ta which c/imate
4 WMO, Resolution 9 (Cg-X), Global Clîmate Change (emphasis added).
5 Ibid. (emphasis added).
6 Ibid.
7 Ibid.
8 See UNEP, Resolution 14/20, Global C!imate Change, Report of the Governing Councîl on the work of its fourteenth session, 18 June 1987, Preamble.
9 Ibid.
ÎHE TRANSFORMATION OF INTERNATIONAL ENVIRONMENTAL LAW
can be predicted' and "the extent of human influence on climate."10 The Agreement provided that the Joint Scientific Committee (JSC), the main scientific body of the WCRP, was in charge of formulating the "overall scientific concept and science goals"11 of the WCRP. Having an exclusive
"scientific" raison d'être, the composition of the JSC is also purely
"scientific". As provided for in Annex C to the 1993 WCRP Agreement, the JSC "shal/ consist of eighteen scientists selected for their scientific knowledge, capability and breadth ofvision."12
Climate change, maybe more than any other issues of global environment, necessitates scientific expertise and knowledge. The UN Framework Convention on Climate Change (UNFCCC), for instance, emphasizes that "there are many uncertainties in predictions of climate change, particularly with regard to the timing, magnitude and regional patterns thereof'.13 Nevertheless, more than any other problems of global environment, it requires "policy" adjustment and integration of the scientific expertise. As conceptualized by the !CSU, climate change provides the basis for "entrench[ing] climate science in the policy agenda"14 or for "tak[ing]
stock of the emerging science at government leve/ for responding to human- induced climate change. "15 Io sum up, international expertise with respect to climate change calls for strong ties between science and policy. In 1988, a sort of "Copemican revolution" was about to take place in the galaxy of climate change-related expertise, with the establishment of the Intergovemmental Panel on Climate Change (!PCC).
The IPCC was instituted by the WMO and the UNEP to conduct
"assessments" of the scientific basis for understanding the risk of human- induced climate change, ils potential impacts, and options for adaptation and mitigation. As defined by the InterAcademy Council, an assessment is "a process by which independent experts review and synthesize available scientific and technical knowledge relevant to climate change that is needed by policy makers Io help make decisions".16 Resolution 4 (EC-XL),
10 Agreement between the WMO, the ICSU and the Intergovemmental Oceanographic Commission on the World Climate Research Programme, Annex A-Definition of the World Climate Research Programme (1993), "Objectives", available at:
http://www.wmo.int/pages/prog/wcrp/pdf/WCRP _Sponsors'_Agreement_ 1993.pdf (last visited 15 September 2010).
11 Ibid., Preamble.
12 Ibid., Annex C-Terms of Refi::rence, Structure and Functions of the Joint Scientific Committee and the Joint Planning Staff, para. 2.1 (emphasis added)
13 UN Framework Convention on Climate Change, New York, 9 May 1992, Preamble.
14 ICSU, "ICSU and Climate Science ... ", op. cit., p.3 (emphasis added).
15 Ibidem (emphasis added).
16 InterAcademy Council (Committee to review the IPCC), "Climate Change Assessments. Review of the Processes & Procedures of the IPCC'', 30 August 2010, available on the website of the InterAcademy Council at: http://reviewipcc.interacademycouncil.net (last visited 15 September 2010)
"lntergovemmental Panel on Climate Change" of the WMO Executive Council highlights that the !PCC expertise is characterized both by ils
"scientific" process and its "policy" content. Indeed, the said resolution foresees that the activities of the !PCC should be aimed al "assessing the scientific information that is related to the various components of c/imate change issues such as emissions of major greenhouse gases and modification of the Earth 's radiation balance resulting there-from" and "formulating realistic response strategies for the management of the climate change issue".17 Resolution 43/53, "Protection of global climate for present and future generations of mankind" of the UN General Assembly, adopted few months after Resolution 4 (EC-XL) endorsed the actions of the WMO and the UNEP in jointly establishing "an Intergovernmental Panel on C/imate Change Io provide international/y co-ordinated scientific assessments of the magnitude, timing and potential environmental and socio-economic impact of climate change and realistic response strategies" .18
The inception of the !PCC symbolizes an epistemological break in comparison with the purely "scientific" character of the WCRP expertise. lt is thus unsurprising that Resolution 4 (EC-XL) of the WMO Executive Council urges "sovereign governments" to choose as representatives within the !PCC, "persans knowledgeable of science, environment and related policy issues".19 Because it combines the "best of both worlds" - i.e., scientific process and policy approaches - the !PCC is a singular mode! of expertise at the international level. lts singularity appears, first and foremost, in its govemance structure (!). The singularity of the !PCC is also depicted through the constant interface between science and policy in the expertise process (2). The present contribution analyzes the singularity of the !PCC while highlighting at the proposais for reform of the !PCC and the major criticisms contained in the independent report the InterAcademy Council issued on August 201020.
( emphasis addcd).
17 WMO, Resolution 4 (EC-XL), lntergovem1nental Panel on Climate Change (emphasis added).
18 UNGA, Resolution 43/53, Protection of Global Climate for Present and Future Generatîons of Mankind, A/RES/43/53, 6 December 1988, para. 10 (emphasis added).
19 WMO, Resolution 4 (EC-XL), Intergovemtnental Panel on Climate Change (emphasis added).
20 The report was requested by Ban Ki-moon, Secretary-General of the United Nations, and Rajendra Pachauri, Chairman of the IPCC. As explained by the IPCC Secretarîat: "On 16 February 2010 a letter No.6927-10/1PCC!AR5 was addressed Io al! government focal points in which it was conveyed that an independent review of the IPCC's processes and procedures be ca!Tied out. Subsequently this was discussed with environment ministers and senior officiais at the 11 th special session of the UNEP Governing Council and the Global Ministerial Environment Forum in February 2010 in Bali, lndonesia. Accordingly an independent review was requested joîntly by the Chairman of the !PCC and the Secretary-General, Mr Ban Ki-moon asking the InterAcademy Council {!AC) ta carry out the review. The 1AC as a multinational organization of science academies }Y.am al! regions created to mobilize science ta advise decision-makers seemed was best p!aced ta provide an independent judgment on the !PCC processes and procedures. Government focal points were infOrmed about that
THE TRANSFORMATION OF INTERNATIONAL ENVIRONMENTAL LAW
1. SiNGULARITY OF THE IPCC GOVERNANCE STRUCTURE
Since its establishment in 1988, the !PCC has been structured in a unique way that merges its intergovernmental nature with its scientific function. As its name indicates, the !PCC is an "intergovernmental body". The !PCC is open to all member countries of the United Nations and the WMO. There are at present 194 member states. According to the Principles Governing !PCC Work, the !PCC "shall concentrate ils activities on the tasks al/otted to il by the relevant WMO Executive Council and UNEF Governing Council resolutions and decisions as well as on actions in support of the UN Framework Convention on Climate Change process".21 The !PCC reports to UNEP, WMO, the UNFCCC, and the UNGA. Formally speaking, the !PCC is an intergovernmental joint subsidiary body of WMO and UNEP, but it operates in practice as if it were an independent organization with a distinct international legal personality-" As pointed out in the report of the InterAcademy Council, "WMO and UNEF officiais appear to exert modes!
oversight over the organization. "23
A. The IPCC and its organs
The !PCC is organized in three "Working Groups": Working Group 1 deals with "The Physical Science Basis ofClimate Change"; Working Group II is responsible of "Climate Change Impacts, Adaptation and Vulnerability";
Working Group III focuses on "Mitigation of Climate Change". The govemance of the !PCC is vested upon four entities: the Panel (also called the "Plenary"), the !PCC Chair, the Bureau and the Secretariat.
The supreme organ of the !PCC is the "Panel". The Panel is made up of government delegations of all member states and meets once a year at the plenary level. The !PCC adopts all its major decisions at annual plenary sessions of the Panel, i.e. decisions about the structure, principles, procedures and work program of the !PCC. The Panel also elects the !PCC Chair. The Chair does not represent a particular region. The !PCC Bureau (31 members) is elected by the Panel of the !PCC. Its members provide guidance and lead the authors' teams through the preparation of an !PCC Assessment Report.
Members of the IPCC Bureau shall be experts in the field of climate change
decision through the letter No.6942-10/IPCC/GEN dated 12 March 2010." See !PCC, Report by the InterAcade1ny Council (submitted by the IPCC Secretariat), Thirty-Second Session of the IPCC, Busan, 11-14 October 2010, Doc. IPCC-XXXII/Doc.7, available at:
http://www. i pcc. ch/meetings/session32/ doc07 y3 2 _report_ IA C. pdf
21 Princip/es Governing !PCC Work, 2006, para. 1.
22 InterAcaden1y Council, "Climate Change Assessments .. ", op. cit., p.40.
23 Ibid.
and all regions are to be represented in the !PCC Bureau.24 The current regional balance of members that the !PCC procedures prescribe is five mernbers from Africa, five members from Asia, four members from South America, four members from North America, Central America, and the Caribbean, three members from the southwest Pacifie, and eight members from Europe. 25 The Bureau is chaired by the Chair of the !PCC and is made up of the Co-Chairs of the three !PCC Working Groups and the Task Force Bureau on National Greenhouse Gas Inventories, the !PCC Vice-Chairs and the Vice-Chairs of the Working Gronps. Two Co-chairs - one from a developed conntry and one from a developing country - are elected for each Working Group of the !PCC.
Despite the importance of geographical balance within the !PCC, it is interesting to note that de facto balanced geographical representation in the activity of the !PCC is not always achieved. For instance, each pair of Working Group Co-chairs is supported by a "Technical Support Unit" which is funded by the country of one of the Co-chairs. The report of the InterAcademy Council reveals that "the cost of supporting the Technical Support Unit, which is stajfed by the equivalent of about 5-10 full-lime people, effective/y limits the Co-chair nominations pool to those countries wi/ling to provide this financial support", and to date, "on/y developed countries have been willing to bear this cost.'"6 Since the Working Group Co-chairs have significant influence and contrai over the assessment, the lead of the preparation, review, and finalization of their Working Group report, the Co-chair of the Working Group whose country supports the T echnical Support Unit "generally has a particularly strong voice in the Working Group. "27
B. The issue of the allocation of powers within the !PCC
The allocation of powers between the "Panel" (the Plenary) and the Bureau is somewhat peculiar. Most of international bodies or organizations have a clear-cut separation of powers among their organs. Each organ is usually empowered with a legislative, executive or administrative power.
The Panel in its plenary concentrates both legislative and executive powers.
Montesquieu was firm in considering that "constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority
24 Appendix C to the Princîples Govemîng IPCC Work, Rules of Procedure for the Election of the IPCC Bureau and any Task Force Bureau (April 2006).
25 lnterAcademy Counci\, "Climate Change Assessments ... ", op. cit., p.42.
26 Ibid. The report indicates that "One way to overcome thîs limitation is to encourage foundations or private corporations ta help developing countries establish a Technical Support Unit, provided that such contributions are made without any precondition by the donor(s)."
27 Ibid.
THE TRANSFORMATION OF INTERNATIONAL füNTRONMENTAL LAW
as jàr as it will go" and that "to prevent this abuse it is necessary from the very nature of things that power should be a ch;ck 10 power. "28 Such an assumption is not verifiable in the case of the Panel. Albeit concentrating both legislative and executive powers, the Panel of the !PCC does not fully exercise those powers. As criticized by the report of the InterAcademy Council, there are no effective mechanisms allowing the Panel to carry out key responsibilities at ail times29. The InterAcademy Council considers that an !PCC "Executive Committee" should be established to act on behalf of the Panel between Plenary sessions. lt proposes that the membership of the Committee should include the !PCC Chair, the Working Group Co-chairs, the senior members of the Secretariat, and three independent members,
"including somefrom outside of the c/imate community.''30
lt is true that the !PCC established an ad hoc Executive Team - comprising the !PCC Chair, !PCC Vice Chairs, Working Group Co-chairs, Secretary, and the heads of the Technical Support Units - to rneet rnonthly, usually virtually. However, as ernphasized in the report of the InterAcaderny Council "the Executive Team Jacks authority and ifs decisions are sometimes ignored or overturne,1'31. What prompted the lnterAcademy Council to recommend the establishment of an "Executive Committee" was IPCC's difficulty in responding to recent controversies, such as the errors in the F ourth Assessment Report as well as the need for a "more powerful group [ ... ] Io look afler the interests of the organization and to respond Io issues as they arise. "32
The Panel is the not the only body which is subject to new govemance needs and challenges. The !PCC Secretariat is also under scrutiny and suggestions to reform the Secretariat are growing more frequent. The Secretariat is the only operational unit of the !PCC that remains active between assessrnent reports, and thus provides important institutional continuity and centralized administrative support33. The Secretariat reports to
28 de Montesquieu Ch., The Spirit of Laws, Book XI (transl. Nugent T., revised Prichard J.V., London: G. Bell & Sons, Ltd., 1914).
29 lnterAcadcmy Councîl, "C!imatc Change Asscssments ... ", op. cit., p.40.
30 Ibid. According to the report of the InterAcademy Council: "The Executive Committee would have the authority to act on thefollowing issues: Approving modes! alterations ta the scope of an ongoing assessment in response to new scientific developments; Approving minor corrections to published reports; Ensuring effèctive ongoing communication with stakeholders, especially the media, inc!uding responding ta errors; Addressing cross-cutting issues, such as ensuring, where appropriate, communication and cooperation among Working Groups: Other tasks as specifical!y de!egated by the Panel."
31 Ibid.
32 Ibid .
. u Ibid., p.44. The report explains that "it comprises JO individuals including the Secretary; a Deputy Secretary (currently a WMO retiree); a science officer; a communications specialist; an if!formation technology ojficer; a .financial administrator; and office assistants who handle travel, meetings, and
the !PCC Chair on technical issues and most of administrative matters, and to UNEP and WMO on personnel issues. The lnterAcademy Council's report stresses that "views on the ejfectiveness of the Secretariat are mixed, as are the suggested possible solutions. Sorne respondents to the Committee 's questionnaire. jar example, found the Secretariat to be political and ineffective and recommended a more professional management structure.
Others thought that il does a fine job, but that the structure is tao lean given the increased responsibilities that have came with a larger, more camp/ex assessment. "34 The report goes further and recommends the establishment of a new position of "Executive Director" to lead the Secretariat, ensure that
!PCC protocols for processes and timelines are followed, and keep in touch with the Working Groups. 35
C. The Observer status within the IPCC
Besides the debate surrounding the institutional reforrn of the !PCC, another sensitive issue in the govemance structure of the !PCC is the granting of the observer status. The !PCC Poliey and Process for Admitting Observer Organizations sets forth that "a body or an agency, whether national or international, governmental or non-governmental, which is qualified in matters covered by the Intergovernmental Panel on Climate Change (!PCC) and which has informed the !PCC Secretariat of ils wish to be represented al Sessions of the !PCC and any of ils Working Groups, may be so admitted subject Io acceptance by the Panel. "36 The requirement of a prior approval by the Panel confirms the "intergovemmental" character of the !PCC. The process for granting such an observer status can be very stringent in some cases as shown in the case of the European Community (EC).
In August 2009, the EC requested to be granted a "special observer status"
("enhanced observer status") and submitted the following text proposa! to be added to the !PCC Policy and Process for Admitting Observer Organizations:
"The Panel decides that the EC may exercise the following procedura/ rights al
!PCC Sessions: 1) The right Io speak in turn, rather than after ail participant States have been acknowledged; 2) The right to reply; 3) The right to introduce proposais. The Panel notes that these rights are exclusives. They do not grant the ability to vote or to be elected. This decision is without prejudice to the !PCC
out1·each. There are also part-time staff and consultants who are notjOrmally posted to the Secretariat."
-14 Ibid.
35 Ibid., p.45.
36 IPCC Policy and Process for Admitting Observer Organizations (2006), para. 1, avallable on the website of the IPCC at: http://www.ipcc.ch/ (last visited 15 Scptcmber 2010) (emphasis added).
THE TRANSFORMATION OF INTERNATIONAL ENVIRONMENTAL LAW
Princip les. "37 The EC justified its request by stating that "the EC 's current status in the !PCC is very limited We are observers as any NGO. However, we believe that this arrangement, which pre-dates the UNFCCC and the Kyoto Protocol, is obso/ete today jàr a number of reasons. "38 Among the reasons put forward by the EC are the "special character of the European Community" and the fact that
"EC [is a] key driver of international climate change research".39 The decision regarding the granting of a "special observer status" to the EC will most probably be taken at the Thirty-Second Session of the !PCC in Busan (Republic ofKorea) on October 2010.
D. Towards a reform of the IPCC govemance structure?
For the lime being, it is noteworthy that although many of the !PCC processes and procedures for carrying out assessments have evolved over the years, its governance structure has remained essentially unchanged. The relevance of its rather closed intergovernmental circuit is increasingly being questioned. As pointed out by the report of the InterAcademy Council, "the IPCC assessment pracess has can1e under ever-increasing pressures fram a wide variety of stakeholders who are hoping jàr evidence that their interests are supported by the latest developments on the scientific frontier. This is not a surprising develapment in an arena where sa much is at stake, where sa many interests collide, and where many uncertainties remain. A/though the
!PCC is a different kind of organization, il faces even more acute issues of accountability and transparency, given the broad public policy interests assaciated with climate change. However, these new expectations are not yet rejlected in the currenl governance and management structure of the IPCc.'"0
Nonetheless, the !PCC is aware of its structural and functional limits in terrns of governance and is going on the road of reforrn. It is in this spirit that both the UN and the !PCC requested the InterAcademy Council to proceed with the review of the !PCC processes and procedures. In the joint letter sent to the InterAcademy Council, the UN Secretary General and the !PCC Chair stress the need for reforrn particularly now that the !PCC has embarked on its Fifth Assessment (ARS). The joint letter insisted on the importance for the work of the !PCC "to be as accurate, objective, comprehensive and transparent as possible, and that the potential for any future errors is
37 IPCC, Thirty-First Session of the IPCC, Bali, 26-29 Octobcr 2009, Revised Proposa! by the European Community for Special Observer Statu.s (submîttcd by the IPCC Sccretarlat), Doc. IPCC- X:XXI/Doc. 6, available at: http://www.ipcc.ch/meetings/session3 l/doc6.pdf (last visited 15 September 2010), p. l.
38 Ibid., Annex Il, p.l.
39 Ibid., Annex JI, p.1-2.
40 lnterAcademy Council, "Climate Change Assessments .. ",op. cit., p.39 (emphasis added).
minimized."41 After about twenty years of practice, the !PCC govemance structure must be rethought in some of its main features in order to allow every step of the assessment process to be clear, consistent and comprehensible but also to make the !PCC "able to respond quickly and transparent/y Io any questions of ils work, recognizing that the world now
. 24 h d' l "42 operates zn a ours me za cyc e.
The viability and sustainability of the !PCC will depend on the potential success in reforming its govemance. The credibility of the climate science provided by the !PCC will also be contingent upon the refonn of the !PCC govemance stmcture. Indeed, since science and policy are inextricably intertwined within the !PCC process, a failure in the refonn of the govemance structure will also imply more reservations from !PCC member states and from other stakeholders vis-à-vis the science provided by the !PCC. That constant interface between science and policy is another feature of the singularity of the
!PCC.
Il. SiNGULARITY OF THE INTERFACE
BETWEEN SCIENCE AND Pouey WITHIN THE IPCC
The Principles Goveming !PCC Work define the role of the !PCC as follows: "to assess on a comprehensive, objective, open and transparent basis the scientific, technical and socio-economic iJ?formation relevant to understanding the scientijic basis of risk of human-induced climate change, its polential impacts and options for adaptation and mitigation"43. The !PCC policy is to use only available scientific and technical information in the assessments. The !PCC itself does not conduct research to support the process. As clearly explained, "the primary source of information is intended ta be peer-reviewed literature. Where such !iterature is not available, appropriately considered and documented non-peer reviewed literature (e.g., industry journals, workshop proceedings, reports of governments and international organizations) may be used. "44
A. About the "soft" policy-prescriptive character of IPCC assessments
The Principles Goveming !PCC Work also provide that "!PCC reports should be neutral with respect to policy, although they may need to deal
41 Ibid., Appendix A-Letters ofRequest to the IAC Co-Chairs, p.66.
42 Ibid.
43 Principles Govemîng IPCC Work (2006), para. 2.
44 InterAcademy Council, "Clin1ate Change Assessments ... ", op. cit., p.19.
THE TRANSFORMATION OF INTERNATIONAL ENVIRONMENTAL LAW
objectively with scientific, technical and socio-economic factors relevant to the application of particular policies."45 As described above, at the origins of the !PCC lies the need to build strong lies between science and policy in the conduct of expertise in the field of climate change. It has also been emphasized that the unique govemance structure of the !PCC is rooted in the interface between climate science and climate policy. In other words, the
!PCC is the representation of an expertise mechanism which demands an
"iterative work between science and public policy."46 Therefore, one can legitimately wonder what the ordinary meaning of a science assessment which is "neutral with respect to policy" is, taking into account customary mies of treaty interpretation as codified in the Vienna Convention on the Law of Treaties (1969). "Neutra!" signifies "impartial", "no! supporting or helping either side in a disagreement"47. If neutrality of science only implies the impartiality of the IPCC with respect to policy positions of ils members, then such a goal is al least guaranteed through the Principles Goveming IPCC W ork. lndeed, the Princip les set forth that "differing views on matters of a scientific, technical or socio-economic nature shall, as appropriate in the context, be represented in the scientific, technical or socio-economic document concemed. Differences of views on matters of policy or procedure shall, as appropriate in the context, be recorded in the Report of the Session"48. Nevertheless, if neutrality of science entails the absence of any
"prescriptive" effect of !PCC assessments, there might be difficulties to agree with such perspective.
Before analyzing the question of the "prescriptive" effect of IPCC assessments, it is important to describe briefly the instruments which embody those assessments. The results of an !PCC assessment are published in four instruments, i.e. three "Working Group reports" and a "Synthesis Report".
Each Working Group report contains chapters on specific topics, a Technical Summary of the chapter contents, and a Summary for Policy Makers. The Technical Summary provides a more detailed overview of the scientific basis of those findings. The Synthesis Report is a shorter document that incorporates the findings of the three Working Group reports and surnmarizes the climate change issues of concem to policy makers in a non- technical style. A Summary for Policy Makers is prepared for each of the three Working Group reports and for the Synthesis Report As boldly emphasized by the report of the InterAcademy Council, "these four
45 Princîples Goveming IPCC Work (2006), para. 2 (emphasis added)
46 Report of the Fîrst Session of the \VMO/UNEP Intergovemmental Panel on Clîmate Change (IPCC), Geneva, 9-11 November 1988, at p. l, avaîlable at:
http://www.ipcc.ch/meetîngs/sessionOI/first-final-report.pdf (Jast visited 15 September 2010).
47 Oxford Dictionaries, http://oxforddictionaries.com (last visited 15 September 2010).
48 Principles Goveming IPCC Work (2006), para. 10.
summaries are arguably the most injluential part of the assessment report because they are the part that policy makers are most likely Io read A team of scientists drafis the Summary for Policy Makers, and government representatives negotiate and agree to the final wording line by line. This process is intended to result in language that is understood by policy makers and to increase the chance that governments wi/l "buy-in" Io the key conclusions of the assessment. "49
The debate about the "prescriptive" versus the "non-prescriptive" effect of !PCC assessments was raised by the !PCC itself. Severa! official communications of the !PCC staff point out that !PCC reports are "not policy prescriptive". The same discourse was even endorsed by the InterAcademy Council when it says that "Although policy makers are the primary target audience, the reports are intended to be policy relevant, not policy prescriptive, and to present the range of thoughtfit! scientific viewpoints."50 However, it seems possible to present a different perspective from the legal point ofview.
For example, it is important to keep in mind that at its very beginning the
!PCC was mandated with a sort of "soft-prescriptive legal power" or "soft- prescriptive decision-making power". Resolution 43/53, "Protection of global climate for present and future generations of mankind", of the UNGA requested the !PCC to initiale action leading to a comprehensive review and
"recommendations" with respect to "elements for inclusion in a possible future international convention on climate."51 The legal influence of the First Assessment Report of the !PCC (which followed Resolution 43/53) on the negotiation and adoption of the UNFCCC demonstrates that some "policy prescriptive" effect can be attached to !PCC assessments regardless of how limited that effect is. Moreover, since the majority of the member states of the !PCC are parties to the UNFCCC, all decisions adopted by the !PCC in its plenary such as Surrnnaries for Policy Makers or Synthesis Reports could be considered to be a "subsequent agreement between the parties regarding
49 InterAcadcmy Council, "Climate Change Assessmcnts ... ", op. cit., p. 25. The report stresses that:
"The governments' Jine-by-line approval of the Summary for Policy Makers drew more concerns and suggestions for improvement by respondents to the Committee 's questionnaire than any other part of the !PCC assessment process. Although most respondents agreed that government buy-in is important, many were concerned that reinterpretations of the assessment's jindings, suggested in the final Plenary, might be politically motivated [ ... ] Thus, the continued involvement ofscientîsts in the drafting and approval process of the Summary for Policy Makers is critîcal to the scient{fic credibility of the report. A complication could arise when Lead Authors are sitting side~by-side with their government representative, which might put the Lead Authors in the dijficu!t position of either supportîng a government position at odds with the Working Group report or opposing their government's position. This may be most awkward when authors are also government employees."
50 Jbîd., p.13 (emphasîs added).
51 UNGA, Resolution 43/53, op. cit., para. 10.
THE TRANSFORMATION OF INTERNATIONAL ENVIRONMENTAL LAW
the interpretation of the treaty or the application of its provisions"52 when
!PCC assessments deal with or relate to a specific provision of the UNFCCC or of the Kyoto Protocol. In fine, member states of the !PCC are bound by the general principle of good faith and surely cannot adopt policy positions which would contradict decisions they did not oppose expressly within the
!PCC.
These factors display the fact that from a legal point ofview, there is room for attributing a "policy prescriptive" effect to IPCC reports, soft as this prescriptive effect may be. But maybe in the course of the reform of its govemance structure, this is one aspect that would need to be clarified among member states of the !PCC. lt is not evident though that !PCC member states want and need such clarification. ln a way, the singularity and interest of the
!PCC rests on that imperceptible frontier and thin line between science and policy, between law and policy and between science govemance and classic interstate govemance. As stressed by the lnterAcademy Council in its report,
"the distillation of the many findings of a massive report into the relative/y brief high-level messages that characterize the Summary for Po/icy Makers necessarily results in the loss of' important nuances and caveats that appear in the Working Croup report. Moreover, the choice of messages and description of tapies may be influenced in subtle ways by political considerations. Sorne respondents thought that the Summary for Po/icy Makers places more emphasis on what is known, sensational, or popular among Lead Authors than one wou/d jind in the body of the report. "53 "Policy prescriptive" or not, the authority of !PCC assessments transcends the international level to penetrate the domestic and transnational levels.
B. The "legal" authority of IPCC assessments at the domestic level
A case comrnonly known as the one which revealed "Al Gore's Ninc Scientific Sins" is a good illustration of the perception of the work of the
!PCC at the domestic level. The case resulted from an application made by Stuart Dimrnock, the father of two sons attending state school and a school govemor, to declare unlawful a decision by the then United Kingdom (UK) Secretary of State for Education and Skills to distribute to every state secondary school in the UK a copy of former US Vice-President Al Gore's film, An Inconvenient Truth. The complainant was, inter alia, challenging the fact that the Secretary of State did not point out the scientific errors contained in Al Gore's film in ligbt of the !PCC Fourth Assessment Report
52 Vienna Convention on the Law ofTreatics, 23 May 1969, Art. 31.3.a.
53 InterAcademy Council, "Climatc Change Assessments ... ",op. cit., p.25.
007). The judge in charge of the case found that the movie could be sent to
~Îr
schools after the Secretary of State decided to accompany the movie with a guidance note enumerating the "Nine Scientific Sins". The judge indicated that "the notes set out in this guidance have been drqfted in accordance with the Fourth Assessment Reports of the IPCC, published in 2007 under the auspices of the United Nations and the World Meteorological Organization.An Inconvenient Truth was made be/ore these latest reports had been published, but it is important that pupils should have access ta the latest and
most authoritative scientific information. The JPCC derives its credibility /rom the fact that ils conclusions are drawn from a "meta-review" of a massive number of independently peer-reviewed journal articles, and /rom the expertise and diversity ofthose on the reviewingpanels."54
C. The 'legal' authority of IPCC assessments at the 'transnational' levei
At the transnational level, more and more networks of non-state actors and networks associating non-state actors and international organizations also recognize the scientific and political authority of !PCC assessments. For instance, at the 2010 Investor Summit on Climate Risk co-hosted by Ceres,55 the United Nations Office for Partnerships, and the United Nations Foundation, the "soft policy prescriptive" character of !PCC assessments was strengthened. The 20 IO Investment Statement on Catalyzing Investment in a Law-Carbon Economy'6 pinpointed that "as an international coalition of investor groups, we underscore the importance of concluding a legally- binding agreement this year with comprehensive long-term measures for mitigation, fores/ protection, adaptation, finance, and technology transfer, including a global emission reduction target of 50-85% by 2050, consistent with estima/es /rom the lntergovernmental Panel on Climate Change."57 Before that, the 2009 Investment Statement on the Urgent Need on a Global Agreement on Climate Change stressed tbat "a long-term global targe! for greenhouse gas emission reductions is essential to give investors confidence
54 England and Wales High Court (Administrative Court), Befol'e Justice Burton Between Stuart Dimmock and Secretary of State Education and Skîlls, 10 October 2007, para. 40, available at:
http://w\vw.bailii.org/ew/cases/EWHC/Admin/2007/2288.htm! (last visited 15 September 2010) (e1nphasis added).
55 Ceres is a North American network of investors, environmental organizations and other public interest groups working with companies and investors to address sustainability challenges such as global climate change, see http://www.ceres.org.
56 The lnvestor Statemcnt was endorsed by four groups representing more than 190 investors. The groups are the Investor Network on Climate Risk (INCR), Institutional Investors Group on Climate Change (IIGCC), Investor Group on Climate Change (IGCC) and the United Nations Environment Programme Finance Initiative (UNEP FI).
57 2010 Invcstment Statement on Catalyzîng Investment in a Low~Carbon Economy, p.2, available at:
http://www.incr.com/summit (last visited 15 September 2010) (emphasis added).
THE TRANSFORMATION OF INTERNATIONAL ENVIRONMENTAL LAW
about the future direction of c!imate policy. Investment decision-making is hampered by policy uncertainty and the absence of a binding redue/ion target. The targe/ should be informed by the best available scientific information based on the emission levels required to avoid dangerous levels of climate change. Ta this end, we support a targe/ based on the latest scientific findings by the internationally-recognized lntergovernmental Panel on Climate Change (IPCC), acknowledging that scientific knowledge continues ta evolve. The JPCC 's F ourth Assessment report indicates that global greenhouse gas emissions shou/d decline by 50-85% by 2050 (against a base year of 2000) ta prevent dangerous ejfects. "58
These developments demonstrate that climate science and climate policy are inherently linked within the !PCC and out of it. Thal intrinsic relationship between science and policy even tends to be characterized by a sort of
"chicken and egg dilemma". Indeed, whether policy is shaped by science or science is pattemed by policy is not crystal clear. What is clear is that the
!egitimacy of the scientific discourse of the !PCC is strictly dependent on its political reception and integration by !PCC member states. In the same vein, the legitimacy of the policy rhetoric is necessarily grounded on the scientific findings of the IPCC. Without this dialecties between science and policy, the
!PCC would !ose of its "magic touch". lt is crucial to preserve the functional dynamics of the !PCC by ensuring that principles of transparency, integrity and neutrality govern the process within the !PCC. For instance, as recommended by the InterAcademy Council in ils report, the !PCC should develop and adopt strict ru!es and principles on conflict of interests that would apply to ail individuals directly involved in the preparation of !PCC reports, including the senior !PCC leadership (!PCC Chair and Vice Chairs), au th ors with responsibilities for report content (i.e., Working Group Co-chairs, Coordinating Lead Authors, and Lead Authors), Review Editors, and the technical staff directly involved in report preparation (e.g., staff of Technica]
Support Units and the !PCC Secretariat). 59 The InterAcademy Council emphasizes the fact that "the nature of the IPCC's task (i.e., in presenting a series of expert judgments on issues of great societal relevance) demands that the !PCC pay special attention ta issues of independence and bias to maintain the integrity of, and public confidence in, its resu/ts. "60
58 2009 Jnvestment Statement on the Urgent Need on a Global Agreement on Climate Change, at p.3, available at: http://w"'1W.incr.com/summit (last visited 15 September 2010) (cmphasis added).
59 InterAcademy Councl!, "Climate Change Assessmcnts ... ",op. cit., p.46.
60 Ibid.
CONCLUSION: ÎHE !PCC AND BEYOND ... ÎOWARDS AN
"INTERGOVERNMENTAL PLATFORM
ON BIODIVERSITY AND ECOSYSTEM SERVICES" (IPBES)
The !PCC is at a tuming point ofits history. IPCC's govemance structure is not as effective as it is necessary to manage large and more comp !ex assessments and to respond to large and more demanding groups of stakeholders.61 The !PCC Chair in a recent speech made at the occasion of the release of the report of the InterAcademy Council, acknowledged that the !PCC was entering into a new phase ofits history: "We were eager for a thorough examination. Our credibility had been challenged, and we realized from the outset that on/y an exhaustive, impartial and independent review would be acceptable. We were prepared ta accept whatever results were jàrthcoming. We were determined ta gather recommendations that would farther the !PCC 's transparency, the accuracy and value of its findings, and minimize the potential for errors [ ... ] We have listened ta and learned from our critics. Severa! of them have provided thoughtfùl recommendations that will inform not on/y the !PCC but ail of climate science - and strengthen bath. "62 However, despite its weaknesses and limits - inherent to ail human institntions ·- the !PCC remains a unique, pioneer and efficient mode!
of expertise at the international level.
The success and pioneering activity of the !PCC are such that new models of international expertise dealing with global environment are being modeled on the !PCC. This is the case of the lntergovemmental Platform on Biodiversity and Ecosystem Services (IPBES). ln March 2008, a concept note was prepared by the UNEP detailing the needs and rationale for an intergovemmental multi-stakeholder platform on biodiversity and ecosystem services.63 The project was supported hy tbe Conference of the Parties to the Convention on Biological Diversity in its Decision IX/15, "Follow-up to the Millennium Ecosystem Approach."64 An agreement to establish an
61 Ibid., p.49.
62 Opening Statcment by Dr Rajendra Pachauri, Chainnan of the IPCC at a press confercnce at the United Nations in New York, 30 August 2010, available at:
http://www.ipcc.ch/press information/press infonnation.htJn # 10 (last visited 15 Septcmbcr 2010).
63 lntergovernmcntal Scie~cc-Policy Platfonll on Biodiversity and Ecosystem Services, Report of the Executive Dircctor, 19 November 2009, Doc. UNEP/GCSS.XI/7.
64 Convention on Biological Diversity, COP 9, Decision IX/15, Follow-up to the Millenniu1n Ecosystem Approach, Bonn, 19-30 May 2008, para. 8. The Decision calls for "the needfor improved scientific information. as related to inter a lia the interests of the Convention on Biological Diversity and other biodiversity-related conventions with a view to strengthening the raie of the Subsidiary Body on Scientijlc, Technical and Technological Advice and the scientific advisory bodies of other biodiversity-related conventions, welcomes the agreement of the Executive Director of the United 1Vations Environment Programme to convene an ad hoc open-ended intergovernmental multi- stakeholder meeting Io consider establishing an efficient international science-policy interface on biodive1·sity, ecosystem services and hwnan well-being."
TllE TRANSFORMATION OF lNTERNATIONAL ENVIRONMENTAL LAW
lntergovemmental Platfmm on Biodiversity and Ecosystem Services was concluded at Busan (Republic ofKorea) on June 2010 after three sessions of tbe ad hoc intergovemmental and multi-stakeholder meeting on an intergovemmental science-policy platform on biodiversity and ecosystem services.
The Busan Outcome indicates that agreement was reached "that an intergovernmental science-policy platform for biodiversity and ecosystem services should be established ta strengthen the science-policy interface for biodiversity and ecosystem services for the conservation and sustainable use of biodiversity, long-term human well-being and sustainable development."65 Like the !PCC, the new platform will be established as an independent intergovernmental body administered by one or more existing UN organizations, agencies, funds, or progrannnes. The Plenary, which wonld surely be the platform' s decision-making body, will be open to the participation of ail States members of the UN and by "regional economic integration organizations."66 Therefore, the EC should be able to become a full member of the IPBES, by contras\ to its Observer status within the IPCC.
Noteworthy is the focus of the Busan Outcome on principles of transparency. The Outcome emphasizes that the platform should be
"scientifically independent and ensure credibility, relevance and legitimacy through the peer review of ils work and transparency in ils decision-making processes", and should "use clear, transparent and scientifically credible processes for the exchange, sharing and use of data, information and technologies from al/ relevant sources, including non-peer-reviewed literature, as appropriate. "67 The Princip les Governing IPCC Work do not embody detailed principles on transparency. The IPBES would surely in its working principles and procedures emphasize those principles to prevent the IPBES to be confronted with the turmoil the !PCC recently faced in terms of transparency. Indeed, the !PCC bas corne under heightened scmtiny about its neutrality toward specific climate policies and the accuracy and balance of its reports. As described in the report of the lnterAcademy Council, "the scrutiny reached a pinnac/e in early 2010 when errors, inc/uding a highly publicized mistake in the melting rate of Himalayan glaciers, were discovered in the F ourth Assessment Report. The revelation of errors came on the heels of another highly publicized controversy in which the unauthorized release of email exchanges between prominent climate
65 Report of the Thîrd Ad hoc lntergovemmental and Multi-stakeholder Meeting on an Intergovemmental Science-Policy Platform on Biodiversity and Ecosystem Services, Annex, Busan Outcome, Busan, Republic ofKorca, 7-11June2010, Doc. UNEP/IPBES/3/3, para. 6, available on the IPBES website at: http://www.ipbes.net (last visîted 15 September 2010).
66 Busan Outcome, ibid., para. 6-g.
67 Ibid., paras 7-b and 7-c.
113
scientists at the University of East Anglia and elsewhere, many of whom had contributed ta !PCC assessments, purported ta show attempts ta misrepresent some climate data. Although many scientists noted that neither the leaked emails nor the !PCC errors undermined the principal scientific findings regarding human contributions ta climate change, public opinion polis in the United States and United Kingdom showed that public confidence in climate science has waned. "68
With respect to the 'policy-prescriptive' effect of scientific assessments, the Busan Outcome chose a different language than the Principles Goveming
!PCC Work which rule that "!PCC reports should be neutral with respect ta policy. "69 The Outcome considers that the IPBES must "provide policy-
relevant information, but not policy-prescriptive advice, mindful of the respective mandates of the multilateral environmental agreements. "70 Nevertheless, despite these elements of differentiation, the IPBES will most likely draw lessons from the experience, the govemance structure and the activity of the !PCC. This is a positive orientation for the IPBES since !PCC assessments have been definitive in informing national and international climate policy options as well as in raising public awareness of clirnate change. The pioneering activity of the !PCC will without doubt influence the growth of models of international expertise where science and policy will be better interconnected, intertwined and mutnally supportive in order to achieve sustainable development.
6s lnterAcademy Counci\, "Climate Change Assessments ... ",op. cit., p. 7.
69 Principles Goveming IPCC Work (2006), para. 2 (emphasis added).
70 Busan Outcome, op. cit., para. 7-e (emphasis added).
