The Framework Convention On Climate Change And The Cop Process

In 1992, before the IPCC identified the human fingerprint on global warming, the world was already "concerned that human activities... enhance the natural greenhouse effect and that this will result... in additional warming of the earth's surface and atmosphere and may adversely affect natural ecosystems and humankind" and "determined to protect the climate system for present and future generations."23 In response to this challenge, the UNFCCC was entered into to:

Achieve... stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow

19 U.N. Environment Programme, 2002: Natural Disasters Set to Cost Over $70 Billion (Oct. 29, 2002) available at; see also WMO, WMO Statement on the Status of the Global Climate in 2001 (2001) available at (reporting on record floods and other natural weather related disasters in 2001), and John Shaw, The New York Times, Nov. 24, 2002, at 12.

20 Improved supercomputer technology now being used in global climate modeling, and ever increasing improvements in the climate models, will produce more detailed predictions soon, as well as a better sense of the possibility of catastrophic consequences.

21 Two recent studies have found that the drought across sub-Saharan Africa is driven by warming of the Indian Ocean and not local land use patterns; droughts in North America, Europe, and central-southwest Asia have been linked to surface temperature changes in the tropical Pacific Ocean. Richard B. Kerr, "Warming Indian Ocean Wringing Moisture From the Sahel," 302 Science 210 (Oct. 10, 2003); see also A. Gianni et al., Oceanic Forcing of Sahel Rainfall on Interannual to Interdecadal Time Scales,

22 It is the speed and size of the warming that is problematic. If this warming were to gradually occur over a hundred thousand or million years, ecosystems and human society would be blind to the changes since climate would change much more slowly than human society and ecosystems change on their own.

23 UNFCCC, Preamble.

ecosystems to adapt naturally to climate change, to ensure that food production is not threatened, and to enable economic development to proceed in a sustainable


In 1992, when the treaty was negotiated and signed, the science of global warming was less certain, and the fear of possible significant economic consequences of creating new, binding legal obligations confined international consensus to recognition that a global threat existed, that more research and information was needed, and that only general, substantive goals could be declared. Thus, instead of committing to binding targets for GHG emissions or atmospheric concentrations, the industrial nations agreed to "tak[e] the lead in modifying long-term trends in anthropogenic emissions" by taking steps to reduce GHGs "with the aim of returning... to their 1990 levels of... anthropogenic emissions of carbon dioxide and other greenhouse gases" by the year 20 00.25 Following the FCCC's principle of "common but differentiated responsibilities," the industrialized nations (designated as Annex 1 countries) agreed to take the lead in reducing emissions, assist in technology transfer, and follow the "financial additionally" concept with respect to involving developing nations.26

The FCCC, being a framework convention, envisioned the need for protocols to establish future targets, timetables, commitments, and rules, and so set up the procedural mechanisms for a continuing international effort to address climate change.27 In particular, the Conference of the Parties (COP) was created as the institutional entity that would conduct future negotiations at regular meetings; the efforts of the COP and FCCC would be supported by a secretariat, headquartered in Geneva, and other subsidiary bodies assigned particular topics by the COP.28

Parallel to the FCCC and COP process, the World Meteorological Organization (WMO) and the United Nations Environment Programme (UNEP) established the Intergovernmental Panel on Climate Change (IPCC) to review, assess, and report on the current state of knowledge concerning climate change issues.29 The IPCC is divided into three working groups. The mandate of Working Group I was to prepare a "comprehensive and up-to-date scientific assessment of past, present and future climate change" that will be "the standard scientific reference for all those concerned with climate change and its consequences" from scientists to policymakers in government and industry.30 Working Group II was charged with preparing a comprehensive

24 Id., Art. 2. 25 Id., Art. 4 % 2(a) and (b).

26 Id., Art. 4 % 3. (For purposes of the UNFCCC, "additionality" is expressed as an obligation of the industrialized world to "provide new and additional financial resources" to developing countries to meet their "full incremental costs of implementing" measures under the FCCC. This species of additionality will be referred to as "financial additionality" as opposed to the CDM concept of emission reduction additionality, which will be discussed in Sections 5-7.)

28 The Secretariat Internet web site is

29 The WMO and the UNEP established the IPCC in 1988. It is open to all member nations of the UNEP and WMO. The IPCC is "to assess the scientific, technical and socio-economic information relevant for the understanding of the risk of human-induced climate change. It does not carry out research nor does it monitor climate related data or other relevant parameters. It bases its assessment mainly on peer reviewed and published scientific/technical literature." The IPCC Web site is

30 IPCC, Working Group I, Climate Change 2001: The Scientific Basis. (J. T. Houghton, et al., eds., Cambridge University Press, 2001) (cover page). In addition to the hard copy version published by Cambridge University Press, the reports are also available in PDF form on the IPCC Web site at

analysis of the potential consequences of and adaptation responses to climate change.31 Working Group III's charge was to prepare a scientific, technical, and economic assessment of climate change mitigation options.32 Each report also contains a definitive Summary for Policymakers, which were each fully reviewed and approved by IPCC member governments.33 The most recent IPCC Working Group I, II, and III reports, commonly referred to collectively as the IPCC Third Assessment Report, was issued in 2001.34

The COP, at its first meeting (COP-1 in 1995), concluded that the FCCC's non-binding approach was not going to achieve GHG reductions, and began years of intense negotiations that led to the drafting of the Kyoto Protocol35 to the FCCC, at COP-3 in Kyoto in 1997.36 The key element of the Kyoto Protocol was the creation of binding national targets for Annex 1 nations (developed countries and countries in transition to a market economy) to reduce their overall emissions of greenhouse gases at least five percent below 1990 levels37 by 2008-12, the first commitment period.38 To achieve total reduction of five percent, each Annex 1 nation agreed to reduce its own "aggregate anthropogenic carbon dioxide equivalent emissions of greenhouse gases listed in Annex A,"39 according to a schedule of GHG reductions indexed to achieving a GHG emissions levels some six to eight percent below that country's level in 1990.40 These

31 IPCC, Working Group II, Climate Change 2001: Impacts, Adaptations and Vulnerabilities (J. J. McCarthy, et al., eds., Cambridge University Press, 2001).

32 IPCC, Working Group III, Climate Change 2001: Mitigation (B. Metz et al., eds., Cambridge University Press 2001).

33 The Working Group I (Science) Summary for Policymakers was prepared by 122 lead authors, 515 contributing authors, 21 review editors, and 420 expert reviewers, and was formally accepted by the 99 IPCC member countries at the 8th session of Working Group I in Shanghai Jan. 17-20, 2001. Working Group II's (Adaptation) Summary for Policymakers was approved in detail at the 6th Session of IPCC Working Group II in Geneva, Feb. 13-16, 2001. The Working Group III (Mitigation) Summary for Policymakers was approved in detail at the 6th Session of IPCC Working Group III in Accra Ghana, Feb. 28-Mar. 3,2001.

34 In July 2002, the IPCC agreed to start the process of preparing its fourth assessment, which it plans to release in 2007.

35 Kyoto Protocol to the United Nations Framework Convention on Climate Change, U.N. Doc. FCCC/CP/1997/L.7/Add.1, reprinted in 37 I.L.M. 22 (1998) (signed Dec. 11, 1997) (not yet entered into force).

36 As of October 16, 2002, 96 nations have ratified the Protocol, and the ratifications represent 37.4% of Annex 1 1990 emissions of carbon dioxide. Thus, Kyoto will enter into force when Annex 1 nations representing an additional 17.6% of 1990 emissions ratify. This could happen, even if the United States (36.1%) does not ratify, if Russia (17.4%) and any country or combination of Annex 1 nations accounting for 0.2% ratify, such as Canada (3.3%), Poland (3.0%), Australia (2.1%), Switzerland (0.3%), or New Zealand (0.2%). The status of the Kyoto Protocol can be checked at

37 Unfortunately, the goal ofthe Kyoto Protocol is only to return the industrial world's emissions to about 8% below the 1990 level by 2008-12, which will only modestly slow the rate of increase of GHG concentration in the atmosphere, and will still result in significant additional global warming.

39 The Kyoto Annex A GHGs are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluo-rocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). Compliance flexibility was also promoted by the adoptions of a "comprehension" approach to all GHGs of concern. Each GHG's "global warming potential," as determined scientifically by the IPCC, would be scaled to CO2 as 1, so that all GHG reductions could be calculated and expressed in the common currency of tons of CO2 equivalent. Id., Art. 5, ^ 3.

40 Annex B targets, as a percentage of 1990 emissions are: Australia 108, Austria 92, Belgium 92, Bulgaria* 92, Canada 94, Croatia* 95, Czech Republic* 92, Denmark 92, Estonia* 92, European Community 92, Finland 92, France 92, Germany 92, Greece 92, Hungary* 94, Iceland 110, Ireland 92, Italy 92, Japan 94, Latvia* 92, Liechtenstein 92, Lithuania* 92, Luxembourg 92, Monaco 92, Netherlands 92, New Zealand emission reductions could be achieved directly or by earning credits for verifiably creating carbon sinks that remove and store carbon from the atmosphere.41 Each nation, or the European Union as a group, would be allowed to develop its own mix of implementation policies, which could range from command and control to market based options or taxes, so long as the target was met within the commitment period 2008-12. However, to promote economic efficiency, the Kyoto Protocol, at the insistence of the United States, established a variety of flexible, international, market-based mechanisms to promote reductions: emissions trading,42 joint implementation of GHG emission reductions between Annex 1 nations and countries in transition to a market econ-omy,43 and a Clean Development Mechanism (CDM), which would allow Annex 1 nations to invest in a fund that would finance emission reduction projects in developing nations and receive a credit for the certified emission reductions accruing from the project.44

The Kyoto Protocol created binding targets and envisioned flexible, market-based implementation. But the operating rules and definitions needed to measure, validate, and verify the reduction credits were the subject of contentious and frustrating negotiations that dragged on for years, through many COPs and an almost unending series of international meetings. While modest progress was being achieved in the COPs, emissions steadily increased. Ironically, when President George W. Bush rejected the Kyoto Protocol in March 2001,45 the withdrawal by the United States, the world's greatest GHG emitter, seemed to galvanize the rest of the world. In July 2001, major political and policy issues were resolved at the Bonn COP meeting (the Bonn Agreements),46 which allowed the Marrakech COP in November 2001 to

100, Norway 101, Poland* 94, Portugal 92, Romania* 92, Russian Federation* 100, Slovakia* 92, Slovenia* 92, Spain 92, Sweden 92, Switzerland 92, Ukraine* 100, United Kingdom of Great Britain and Northern Ireland 92, and United States of America 93. (* indicates countries that are undergoing the process of transition to a market economy.)

41 Kyoto Protocol, Art. 3, f 3. 42 Id., Art. 6.

43 Id., Art. 4. Joint implementation (JI) refers to "a market based implementation mechanism defined in Article 6 of the Kyoto Protocol, allowing Annex I countries or companies to implement projects jointly that limit or reduce emissions, or enhance sinks, and share the emission reduction units. JI activity is also permitted in Article 4.2(a) of the U.N. FCCC." IPCC (Mitigation 2001) 715. The FCCC also established a pilot phase for activities jointly implemented for projects among developed countries (and their companies) and between developed and developing nations (and their companies). At present, these activities do not receive any emission reduction credits, but may in the future, but are encouraged as first steps in creating a market in tradable permits for GHG emission reductions and sink enhancements. Id. at 427-429, 708.

44 Id., Art. 12. The Kyoto Protocol also expects Annex 1 nations to "provide new and additional financial resources" to institutions such as the Global Environmental Facility to fund the developing countries' cost of implementation of their FCCC obligations, and to cover the incremental costs of technology transferred to developing countries to reduce GHG emissions. Art. 11.

45 The United States, under the Bush Administration, has refused to adhere to itsproposedKyoto reductions. Instead it proposes to slightly increase the efficiency of the U.S. economy so that the emissions per dollar of GDP are reduced by about 1% per year. However, this rate of efficiency occurs naturally in the economy, so the "new" idea is actually a "business as usual" proposal that will only lead to increased levels of GHG emissions.

46 See Bonn Agreements for the Implementation of the Buenos Aires Plan of Action, UN Doc. FCCC/CP/2001/L.7 (2001). COP-4, Buenos Aires 1998, could not reach any substantive agreements on operational details to implement Kyoto and as a default it issued the Buenos Aires Plan of Action, which identified the issues on which rules were needed to implement Kyoto, and self-imposed a deadline of COP-6 for reaching agreement.

craft the detailed rules for emissions trading and control measures (the Marrakech Accords).47

Continue reading here: The Bonn Agreements And Marrakech Accords

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