International Environmental Law Part 8 docx

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Climate Change 361

and technical concerns (that is, protection against potential abuse of baselines in

developing countries) were pushed aside.

At Kyoto, the industry appeared even more divided than during the Climate

Change Convention negotiations. The BP and the Royal/Dutch Shell, because of

their gas reserves, supported efforts to curb greenhouse gas emissions. Other energy

companies, however, such as Exxon/Mobil, were still putting pressure to resist firm

commitments. Other sectors of the economy, such as the insurance sector, potentially

adversely affected by abrupt weather phenomena, gas companies, and even some

auto manufacturers saw more benefits in establishing targets and timetables than in

procrastinating further the adoption of regulatory measures.116

2.2. Legislative Instruments

2.2.1. Convention on Climate Change

Obligations

The Climate Change Convention is a framework convention. Its purpose is to set

the general tone for the future climate change discussions and to compromise in a

single text the often irreconcilable interests and ideologies of state parties. Because

of this reality – a reality for every framework convention – the convention straddles

the world of firm commitments and vague hortatory articulations.

Article 4 surprisingly contains in its title the word “commitment.” Article 4 is

overall a procedural article, but it is not deprived of substance. It provides, for instance,

that state parties must establish national inventories for greenhouse gas emissions and

removals by sinks by using comparable methodologies.117 The inclusion of the term

“comparable methodologies” was subject to controversy during the negotiations,

as developing countries were aware of not having at their disposal methodologies

comparable with methodologies available in developed countries.

Other provisions include the obligation of parties to formulate, implement, and

publish national and regional programs designed to mitigate climate change and

climate change effects,118 to promote the transfer of technology,119 and to promote

the development of sinks.120 Another provision, that would potentially affect com￾pliance, is the requirement to “communicate to the Conference of the Parties”

information related to the implementation of the convention.121

Article 4(2) has been interpreted by some to include specific commitments on

sources and sinks. More specifically, the convention provides that Annex I countries –

that is, developed countries – must report on national policies and measures to limit

emissions and to increase the number of sinks122 within six months after the entry

into force of the convention.123 Policies must be adopted “with the aim [for states] of

116 Id. at 257–59.

117 Art. 4(1)(a), United Nations Convention on Climate Change, May 9, 1992, reprinted in 31 ILM 849

(1992)[hereinafter Climate Change Convention].

118 Art. 4(1)(b), id.

119 Art. 4(1)(c), id.

120 Art. 4(1)(d), id. 121 Art. 4(1)( j), id. 122 Art. 4(2)(a), id.

123 Art. 4(2)(b), id.

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returning individually or jointly to their 1990 levels” of the emissions of greenhouse

gases.124 This provision, in combination with the requirement to return by the year

2000125 to earlier levels of emissions, was used by European countries to make the

argument that the convention actually included a commitment to cut back emissions

by the year 2000 to 1990 levels.

However, because article 4 is drafted in an opaque fashion, with no strong con￾nection between paragraphs 4(2)(a) and 4(2)(b), whether the convention establishes

a real enforceable commitment was contestable.

The Conference of the Parties must review these contested targets and timetables.

The review must be based on the best scientific information and “appropriate action”

must be taken after the review has taken place. No details are provided, however,

about what this appropriate action may entail.126

Overall, article 4(2), which is the closest to a specific commitment, applies only

to developed countries as specified in Annex I. Annex I includes also countries

with economies in transition that expressed difficulties in meeting commitments

under article 4(2). Therefore, further provisions were adopted that expressly allow

countries with economies in transition “a certain degree of flexibility” in meeting

the requirements of article 4(2).127

Some have characterized the Climate Change Convention as a comprehensive

convention, in that it attempts to regulate all greenhouse gases and not just car￾bon dioxide.128 The convention is comprehensive also because it focuses on net

emissions – that is total emissions by sources minus the removal by sinks.129

Joint implementation is included timidly in the convention130 because it is pro￾vided that parties can implement the convention jointly with other parties. The

convention alludes to the fact that the Conference of the Parties must review deci￾sions on joint implementation.131 Article 3(3) also provides that “[e]fforts to address

climate change may be carried out cooperatively by interested Parties.”

Regarding the costs of complying with the convention, it is provided that “the

agreed full costs incurred” by developing countries under article 12 – that is, the

reporting costs – are to be covered by developed countries.132 With regard to other

implementation costs, the convention is not as clear. Developed countries must

provide the financial resources to meet “the agreed full incremental costs of imple￾menting measures” by developing countries.133 Thus, for implementation costs to

be funded, they have to be mutually agreed on by developed and developing coun￾tries. However, what full incremental costs would involve could be debatable. For

instance, the additional costs of building a renewable energy plant, instead of a

coal-run facility, should be covered, but the opportunity costs of not decimating a

124 Id.

125 Art. 4(2)(a), id.

126 Art. 4(2)(d), id.

127 Art. 4(6), id.

128 Art. 3(3), arts. 4(2)(a) and 4(1)(a), id.

129 Art. 3(3), arts. 4(1)(b) and 4(2)(c), id.

130 Art. 4(2)(a), id.

131 Art. 4(2)(d), id.

132 Art. 4(3), id.

133 Id.

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Climate Change 363

rainforest are not clearly covered. According to a generous interpretation, any activ￾ity that has as aim to reduce emissions, which would have not happened under a

business-as-usual scenario, should be covered. From another point of view – one that

was endorsed by international institutions – for a project to be eligible for funding

it has to demonstrate some global environmental benefit.

It must be mentioned that article 4(3) covers reporting and other implementa￾tion costs but not adaptation costs, as adaptation costs are considered to have local

benefits. Adaptation costs may include the removal of populations from coastal areas

caused by rising sea levels. Coastal states and small island states wanted to adopt

specific provisions on compensation against future disasters as a result of climate

change. But eventually their concerns were addressed rather cursorily.134 Technol￾ogy transfer provisions were diluted significantly from those initially proposed by

developing countries. Technology transfers were adopted eventually as an obligation

of developed states to facilitate transfers of technology to developing countries.135

Some treaty provisions address the concerns of the most vulnerable countries

which include small island countries,136 the least–developed countries,137 and the

countries that are likely to be affected by measures to combat climate change – that

is, fossil fuel–producing countries.138

Administrative Provisions

The convention is administered by a Conference of the Parties (COP), which is

the supreme body of the convention.139 The purpose of the COP is to keep under

regular review the implementation of the convention. This review takes place by

assessing, inter alia, all information provided by the parties on the implementation of

the convention and the effects observed, as a result of measures undertaken, includ￾ing environmental, economic, and social effects.140 The COP must additionally

coordinate the measures adopted by the parties141 and guide the development and

refinement of comparable methodologies for the assessment of greenhouse emissions

and removals by sinks.142 The COP “shall consider and agree on methodologies [for

greenhouse emissions and removals by sinks] at its first session and review them

regularly thereafter.”143 The COP must further agree on methodologies for the

development of national inventories144 and agree on criteria for joint implementa￾tion.145 NGOs can maintain an observer status at the COP.146

The Secretariat is appointed by the Conference of the Parties and has general

administrative functions as in most international environmental conventions.147 The

134 See art. 4(4) and (8), id.

135 Art. 4(5), id.

136 Art. 4(8)(a), id.

137 Art. 4(9), id.

138 Art. 4(10), id.

139 Art. 7(2), id.

140 Art. 7(2)(e), id.

141 Art. 7(2)(c), id.

142 Id.

143 Art. 4(2)(c), id.

144 Art. 4(1)(a), id.

145 Art. 4(2)(d), id.

146 Art. 7(6), id.

147 Art. 8, id.

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Secretariat cannot comment on states’ implementation but can help to disseminate

the information contained in the reports submitted by states and can report on its

own activities.

A Subsidiary Body for Scientific and Technological Advice (SBSTA) assists the

COP in the execution of its functions. The purpose of this body is to provide

scientific information and advice and is comprised of government representatives

that are experts in climate change issues.148 A subsidiary body is established for

implementation the purpose of which is to assist the COP in assessing and reviewing

implementation.149

The negotiations on the administration of the financial mechanism, established

under the convention, caused some skirmishes between developed and developing

countries. Developed countries wanted the mechanism, which was provisionally to

be included under the auspices of the GEF, to be as independent as possible from

the COP. Developing countries desired the opposite. Eventually, it was agreed that

the financial mechanism would have “an equitable and balanced representation of all

Parties within a transparent system of governance.”150 The degree of independence

of the financial mechanism remains unclear. The financial mechanism is to function

under the guidance of the COP and must be accountable to the COP. The COP must

decide on the policies, programs, criteria, and eligibility criteria that the financial

mechanism would apply.151 However, if another entity, such as the GEF or the World

Bank, is entrusted with the fund, such entity would have decisive authority over its

functioning.152

Principles and Guidelines

In addition to the semiregulatory and administrative provisions examined here, the

convention is important because it rearticulates in a binding text some principles of

international law that – although included in other instruments – had yet to be fully

fledged. Such is the principle of common but differentiated responsibilities that is

articulated in the preamble153 and also in the principles section.154

Other principles that are articulated have less of a weight in terms of producing

concrete outcomes. The provision that countries must protect the climate system for

the present and future generations is more of a guiding wish rather than an applicable

principle.155 The convention includes a diluted version of the precautionary prin￾ciple stating that the lack of total scientific certainty should not be used as a reason

for postponing action; and providing, simultaneously, that policies and measures to

deal with climate change should be cost-effective.156 The rest of the principles focus

on sustainable development and the fears of developing countries that measures to

curtail climate change could become an arbitrary restriction on trade.157

148 Art. 9, id.

149 Art. 10, id.

150 Art. 11(2), id.

151 Art. 11(1), id.

152 Art. 11(3), id.

153 Para. 6, Preamble, id.

154 Art. 3(1), id.

155 Id.

156 Art. 3(3), id.

157 Art. 3(4) and (5), id.

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Climate Change 365

Despite all the wrangling and recriminations that surrounded the Climate Change

Convention by the end of 1993 – merely one and a half years after its adoption –

the convention was ratified by fifty countries. This was the number of countries

required to have the convention enter into force.

2.2.2. Regulation of Greenhouse Gases

The Kyoto Protocol brings to the climate change regime the specific commitments

that were obfuscated in the Climate Change Convention. Developed countries

(included in Annex I) of the protocol shall ensure that their carbon dioxide and

other greenhouse gas emissions do not exceed their assigned amounts (prescribed in

Annex B).158 The goal here is a reduction of emissions by, at least, 5 percent below

the 1990 emission levels for the commitment period between 2008 and 2012.159

The year 1990 is used as a base year for CO2, methane and nitrous oxide. The year

of 1995 is used as the base year for industrial trace gases (HCFs, PFCs, and SF6).160

The gases controlled under the protocol are included in Annex A of the protocol.

The protocol provides, but not in terms of a specific obligation, that each devel￾oped country must have achieved by 2005 “demonstrable” progress toward meeting

the objectives of the protocol. “Demonstrable” progress, however, is not further

clarified.161

The parties can meet their obligations either by reducing their emissions or

increasing their removals by sinks or both. The protocol seeks to limit, however,

the type of sinks that could be used to offset emissions to “direct human-induced

land-use change and forestry activities,” that is, afforestation, reforestation, and defor￾estation. Both emissions by sources and removals by sinks are to be reported “in a

transparent and verifiable manner” to be reviewed by expert teams pursuant to

the decisions of the Conference of the Parties.162 The Conference of the Parties

must decide how land-use, land-use change, and forest (LULUCF) activities could

be used as credits against the Assigned Amounts (AAs) of emissions prescribed in

Annex I. According to SBSTA, an adjustment to a state’s AAs shall be equal to veri￾fiable changes in carbon stocks during the period between 2008 and 2012 resulting

from direct human-induced activities of afforestation, reforestation and deforestation

undertaken since January 1, 1990.163

In further meetings of the parties, it was defined that the “assigned amounts

of emissions”164 would be calculated in terms of assigned amount units (AAUs)

or in terms of removal units (RMUs). Removal units could be further expressed

as Emission Reduction Units (ERUs) (for joint implementation reductions among

developed countries) or as certified emission reductions (CERs) (for reductions

accomplished within the CDM). All the AAUS and RMUS (including ERUs and

158 Art. 3(1), Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997,

37 ILM 22 (1998) [hereinafter Kyoto Protocol].

159 Id.

160 Art. 3(8), id.

161 Art. 3(2), id.

162 Arts. 3(3) & 4(4), id.

163 Grubb, supra note 111, at 120. See arts. 7–8, Kyoto Protocol, supra note 158. See also art. 3(10), (11)

and (12), id.

164 Art. 3(1), id.