The text of the completed Kyoto compliance system is contained in the Annex to decision 24/CP.7, FCCC/CP/2001/13/Add.3, taken by COP-7. COP-7 recommends that the first session of the Conference of the Parties serving as the Meeting of the Parties to the Protocol (COP/MOP) adopt the Annex.

The Joint Working Group (JWG)'s mandate, adopted as part of the Buenos Aires Programme of Action, did not mention Art 18, but instead referred to all compliance-related elements of the Protocol. This was in part to ensure that the JWG took into account compliance issues outside Art 18, such as rules related to the Kyoto mechanisms; and in a part an effort by some delegations to avoid the procedural dictates of the last sentence of Art 18, which links binding consequences to the Protocol's troublesome amendment procedures. Importantly, the Kyoto compliance system's indicative list of consequences is applicable only to its facilitative functions. Its enforcement functions lead to a series of compulsory consequences. FCCC/CP/1998/16/Add.1, Annex II [hereinafter Buenos Aires Programme of Action]. Buenos Aires Programme of Action.

FCCC/SB/1999/MISC.4 and Add 1, 2, 3, 29 April 1999 [hereinafter April 1999 submissions]; FCCC/SB/1999/MISC.12, Add 1-2, 22 September 1999 [hereinafter September 1999 submissions]; FCCC/SB/2000/MISC.2 [hereinafter 2000 submissions]. FCCC/SBI/2000/17, Report of the JWG, Report on SBI 13 part II; FCCC/SB/2000/10, Report of the JWG, Report on SBI 13 part I, Annex III; FCCC/SB/2000/5, Report of the JWG, Report on SBI 12, Annex III; FCCC/SB/2000/1, Elements of a Compliance System for the Kyoto Protocol. Note by the JWG co-chairmen, FCCC/SBI/1999/8 Report of the JWG, Report on SBI 10, Annex II.

FCCC/CP/2001/5, pp48-49, Report of COP-6, Part 2. 25 September 2001 [hereinafter the

Bonn Agreement].

See the Bonn Agreement.

In the Bonn Agreement, delegations referred to the purpose of enforcement consequences as 'aimed at the restoration of non-compliance ... ensur[ing] environmental integrity, and provid[ing] for an incentive to comply.' This language sought to avoid the implication that the system would impose sanctions. It also suggests that the object was not to punish non-

compliance but rather to ensure that the environmental benefits lost by delay were made up for by an increased effort.

The Member States of the EU were led by the delegation representing the presidency. Major submissions on compliance were made by Germany (April 1999 submissions), Finland (September 1999 submissions) and Portugal (2000 submissions). The last two of these were made also on the behalf of certain accession states, including Bulgaria, the Czech Republic and Cyprus.

JUSCANZ is roughly made up of Japan, US, Switzerland, Canada, Australia, Norway and New Zealand. With the exception of Switzerland, the JUSCANZ members had formed the core of the Umbrella group, which also included Russia. Switzerland joined with Mexico and South Korea (the only other OECD members that are not members of the EU or JUSCANZ) to form the Environmental Integrity Group. As will be seen, disagreements over compliance issues led to the further fracturing of the Umbrella group. The G-77's coordinator and spokesperson for compliance issues during the negotiations was South Africa. Under South Africa's leadership, the delegations of Brazil, China, India, Iran, Samoa and Saudi Arabia were particularly active in shaping the views of this group on compliance.

The fact that non-Annex I (developing country) parties are committed to the objective, principles and process of the climate regime, but do not yet have quantified emissions-reduction commitments, is said to reflect the 'principle of common but differentiated responsibilities' as contained in Art 3.1 of the Convention, Principle 7 of the 1992 Rio Declaration on Environment and Development and many other international environmental agreements.

Most AOSIS members are also members of the G-77, and AOSIS worked closely with the G-77 in arriving at common positions. The AOSIS coordinator and spokesperson for compliance issues was Samoa. The author was an adviser to the delegation of Samoa on compliance.

Although OPEC did not negotiate as a bloc, Saudi Arabia played a leadership role in presenting the views of this group.

'President Bush discusses Global Climate Change', White House Press Release of 11 June 2002, available at

The US submission envisaged a single compliance procedure divided between two institutionally-distinct standing branches or bodies, one with the responsibility for facilitation, the other for enforcement. The mandates of these bodies would be linked to the legal character of the articles of the Protocol, with the binding targets and associated commitments related to reporting and the operation of the flexibility mechanism handled by the Enforcement Branch. Soft and unquantified provisions would be handled by the Facilitative Branch. Penalties associated with non-compliance would be spelled out clearly and in advance. It was specifically proposed that the main penalty for an Annex I party exceeding its cap should be that 'any excess tonnes be subtracted from a Party's assigned amount for the subsequent commitment period, with a penalty (at a rate designed to make overages unattractive)'. September 1999 Submissions, 65-81.

The JWG was chaired by Espen Ronneberg (Republic of the Marshall Islands) and Harald Dovland (Norway). Mr Ronneberg was later replaced by Ambassador Tuiloma Neroni Slade (Samoa). The co-chairs were supported throughout by the staff of the UNFCCC Secretariat, Mukul Sanwal and Xueman Wang, and Monica Sevilla.

A final push in the development of the compliance system came from the combined efforts of Jan Pronk (the Netherlands) and Valli Moosa (South Africa), the ministers tasked with pushing through compromises on critical parts of the text. For a full account of Pronk and Moosa's roles, see Lefebere, 2002.

19 See Report of the Ad Hoc Group on Article 13 on its Sixth Session, FCCC/AG-13/1998/2, and Report of the Fourth Session of the Conference of the Parties to the UNFCCC, Decision 10/CP.4 and Annex.

20 See also Victor et al, 1998. The leading text supporting the managerialist approach is frequently cited in both of these studies as Chayes and Chayes, 1996.

21 Both the MCP and the Kyoto Protocol take into account the possibility that the MCP's jurisdiction could be extended to cover Protocol commitments.

22 See, for example, the submission by Australia, in April 1999 Submissions, 3; and by South Africa on behalf of the Group of 77 and China, April 1999 Submissions, add 3, 3.

23 Joint Implementation under Art 6, the Clean Development Mechanism under Art 12, and emissions trading under Art 17.

24 See, for example-, the submission of Canada in September 1999 submissions, 14.

26 A number of US interventions and submissions stressed the importance of strong domestic enforcement systems in meeting the Kyoto targets, and called upon parties to report on these systems in detail. See September 1999 Submission, 79.

27 Article 4 allows members of the European Community (or any other group of Parties) to enter into an agreement to jointly fulfill their commitments under the Protocol by collectively sharing these commiments as long as their combined emissions do not exceed their combined assigned amounts.

28 See, for example, 'Russia's own poor health leaves bounty of "hot air" to burn for cash: Emissions monitoring still poor, but credits could yield riches', in The World Paper ONLINE, March 2000,

29 See, for example, the submission of South Africa on behalf of the Group of 77 and China, April 1999 Submissions.

30 See, eg, the submission of South Africa on behalf of the Group of 77 and China, April 1999 Submissions, which calls for consideration of the benefits behind automatic penalties, contemplates the use of financial penalties, and states clearly that 'binding consequences for non-compliance are essential'.

31 Submissions were received from Argentina, Brazil, India, Samoa (for AOSIS), Saudi Arabia and South Africa.

32 See, for example, the submissions of Brazil, AOSIS and South Africa in 2000 Submissions.

33 Submission of Brazil, 2000 Submissions 24-27. Brazil's position was supported in part by a reading of Art 8.3 of the Protocol, which envisages a role for the COP/MOP in receiving the reports of the ERTs prior to the identification by the Secretariat of the questions of implementation contained in those reports, which would then be considered further by the COP/MOP. Brazil and others read this provision as authorizing the COP/MOP to review and filter these questions before any further action (including action by the Compliance Committee) could be taken.

34 See, for example, Submission of Argentina, 2000 Submissions, 9, supporting a role for the COP/MOP in vetting the final report of the Compliance Committee; Submission of China, 43, supporting a role for the COP/MOP in triggering the Compliance Procedure.

35 This would follow the lines of the role of the WTO Dispute Settlement Body in relation to the Panels and the Appellate Body in that system. One member of the subcommittee, by blocking consensus, could ensure that the decision of the Compliance Committee would stand. Submission of Brazil, 2000 Submissions, 25.

36 For example, at COP-1, when the parties adopted the Berlin Mandate that committed them to negotiate a Protocol containing targets and timetables, Kuwait, Saudi Arabia and Venezuela formally expressed their reservations on the decision adopted. FCCC/CP/1995/7. At COP-2, Bahrain, Jordan, Kuwait, Nigeria, Oman, Qatar, the Russian

Federation, Saudi Arabia, Sudan, the Syrian Arab Republic, the United Arab Emirates, Venezuela and Yemen, and one observer state, the Islamic Republic of Iran, formally objected to the adoption, approval or acceptance of the Geneva Ministerial Declaration which endorsed the latest assessment report of the IPCC and reiterated the call for swift conclusion of the Kyoto Protocol negotiations. FCCC/CP/1996/15, Annex IV.

38 By COP-7, the Umbrella group had basically fallen apart, with those countries generally supportive of a strong compliance system with binding consequences (Norway, Iceland and New Zealand, known as 'Nizeland') agreeing largely with the G-77, EU+ and the Environmental Integrity Group (Mexico, South Korea and Switzerland). What remained of the Umbrella group (Australia, Japan, Canada, Russia and the US, referred to here as the Umbrella rump) had either rejected the concept of binding consequences, rejected the Protocol altogether, or were showing solidarity with allies.

39 The US never publicly argued against the need for binding consequences.

40 While the idea of financial consequences had appeared in a number of G-77 and EU submissions, it became part of the negotiating package as a result of a proposal from Valli Moosa (South Africa). Under the two main proposals on the table, one from the EU and one from Brazil, the fines collected would be placed in a Compliance Fund, which would invest in generating emissions reductions. Fund proponents had not yet discussed fully or resolved positions on whether such a Compliance Fund should be managed by an institution (including a domestic institution) chosen by the party in non-compliance (EU), or by an international institution designated by the COP/MOP or by the Compliance Committee (Brazil). The Brazilian and EU proposals left unresolved whether the Fund's investments should be exclusively domestic within the non-complying party, whether they should be global (Brazil) or instead should be left to the discretion of the Fund (EU). Minister Moosa introduced language that would have obligated parties in non-compliance to provide 'reparation of damage to the environment'.

41 See Chapter 3 for a discussion of how Annex I interests were protected in the context of this majority membership, using other procedural means such as presumptions and voting rules.

42 Marrakesh Accords, Decision 15/CP.7, Annex, FCCC/CP/2001/13/Add.2, para 5.

43 Text proposed by the co-chairmen of the JWG on Compliance, FCCC/SB/2000/11, 24 October 2000.

44 Marrakesh Accords, Decision 24/CP.7, FCCC/CP/2001/13/Add.3.

Negotiating Essentials

Negotiating Essentials

Always wanted to get a better deal but didn't have the needed negotiation skills? Here are some of the best negotiation theories. The ability to negotiate is a skill which everyone should have. With the ability to negotiate you can take charge of your life, your finances and your destiny. If you feel that others are simply born with the skill to negotiate, you should know that everyone can learn this wonderful skill.

Get My Free Ebook

Post a comment