Download Chapter 4 The United Nations Framework Convention on Climate

Chapter 4
The United Nations Framework
Convention on Climate Change
I.
An Introduction to International Treaties (p. 127)
This chapter is the first of seven chapters that address the international dimension
of climate change law. This chapter introduces the UN Framework Convention on
Climate Change (UNFCCC) and is followed by the next chapter on the Kyoto Protocol.
Together, the UNFCCC and the Kyoto Protocol are often referred to as the climate
regime. After Chapter Five’s treatment of the Kyoto Protocol, Chapters 6, 7 and 8
present three particularly important and complex areas of the climate change regime—
respectively, implementation through the carbon market, land-use and forestry, and
compliance and dispute resolution. They are followed by Chapter 9, which looks beyond
the Kyoto Protocol to the current Copenhagen negotiations (anticipated to be finished by
the end of 2009). The final international chapter (Chapter 10) addresses the relationship
of other international law regimes to the issue of climate change.
The first section of this Chapter provides an introduction to international treaties
under the assumption that many students taking Climate Change and the Law may not
have yet had an international law class. The section introduces treaties as a source of
international law and explains that they are binding on all parties. Students should be
referred to the Vienna Convention on the Law of Treaties to learn more about the
procedural and administrative aspects of treaties.
Questions and Discussion (p. 132-34)
1. This note is self-explanatory.
2. Many of the principles described later in this chapter (beginning on page 150) are
potentially customary principles of law or at least are emerging principles of customary
law. Their ultimate status as custom is not as important for their impact on the climate
negotiations as it would be for the resolution of any international climate disputes (as
discussed in Chapter 8) brought, for example, by small island states against the
industrialized countries.
3. Some environmental principles, for example the principles of sustainable development
or of environmental impact assessment, may be so universally present in various legal
systems that they may now, or in the near future, be considered general principles of law.
The relevance of their status as general principles would, like custom, be in the context of
any international dispute brought to a formal dispute resolution body like the
International Court of Justice.
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4. The principle of state responsibility does not create any independent substantive
environmental norms. Rather, the general principle of state responsibility affirms that a
State that has violated its substantive legal responsibilities will be held responsible under
international law for harm to the interests of the other State. The principle applies to
violations of substantive obligations in the field of the environment.
5. Soft law refers to those instruments or norms that do not reflect the formal sources of
international law (i.e. treaties, custom or general principles) and thus would not be
considered binding international law by the International Court of Justice or most other
international dispute resolution mechanisms. Nonetheless, soft law principles may have
significant normative content and may be used in a myriad of ways that are more or less
binding. For example, the World Bank’s technical performance standards for emissions
from coal-fired power plants are not a formal source of law, but they nonetheless embody
norms that will be enforced through the loan documents between the Bank and the
borrower. These same standards may also be introduced in private sector lending and
thereby have significant influence in the future operation of fossil fuel projects around the
world. Although these are not binding, “hard” sources of public international law, such
“soft” standards, principles, or policies are nonetheless important international norms that
in some contexts can be as enforceable as hard law.
Many of the principles described later in this chapter (beginning on page 150) as forming
the policy background for the UNFCCC were also endorsed in the Rio Declaration. This
is perhaps not surprising given that the Rio Declaration and the UNFCCC were
negotiated simultaneously and signed at the 1992 UN Conference on Environment and
Development (UNCED or the Earth Summit). The Rio Declaration was signed by most
countries of the world and subsequently endorsed by a UN General Assembly Resolution.
II.
The Global Politics of Climate Change (p. 134)
This section introduces some of the fundamentally different approaches different
parts of the world take towards the climate change negotiations. To some extent, the
section focuses on the persistent differences that have existed throughout the entire time
of the climate negotiations (i.e. from the UNFCCC through Kyoto to Copenhagen).
Students may be most interested and engaged in current climate politics, for example,
which shift in significant ways all the time. As we write this Teachers’ Manual, the leadup to Copenhagen is in full swing and countries are staking out new positions virtually
every day. What is becoming clear is that the large developing countries, particularly
Brazil, India and China, are critical players that have their own agendas to pursue through
climate change. All three countries want to be viewed as major economic and diplomatic
powers in the world and so need to be seen as willing to cooperate on issues like climate
change, but at the same time they are unwilling to forego future development in the way
necessary to address climate change—at least not yet, and certainly not without
significant further cuts by industrialized countries and significant financial and technical
assistance. The rise of these countries makes forums like the G-20 even more important
institutions for negotiating future climate policy.
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A.
National and Regional Contributions to Climate Change (p. 134)
This section sets forth recent data on different country contributions to climate
change. A general understanding of this data is critical for students to understand why
the United States is seen by so many countries as the primary climate villain. It also
reveals why India and China can argue so forcefully that they should not yet be required
to cap emissions. A good understanding of this chart explains many of the positions in
international climate change policy.
B.
Global Divides in Climate Politics (p. 135)
One approach to engaging the students with respect to international climate
change politics and negotiations is to divide the class into negotiating blocs and ask them
to approach the discussion from their assigned position. We typically divide the class into
seven groups:
1) The United States; 2) The European Union; 3) The Newly Independent States (Russia
and Central and Eastern Europe); 4) Brazil and the Amazon region; 5) China and India;
6) The Island States; and 7) The OPEC countries.
Depending on the size of the class, students can also be assigned to represent nonstate actors (for example, Greenpeace International or the Climate Action Network on the
one hand and the American Petroleum Institute or the International Chamber of
Commerce on the other).
Dividing the students up is one way to develop and hear different perspectives
and it can enliven the discussion of both the geopolitics of climate but also the specific
provisions and controversies that arise from the UNFCCC and the Kyoto Protocol.
Questions and Discussion (p. 138)
1. One difference between the OPEC position and those countries that seek compensation
for conserving forests is that the forest countries will have to expend money to maintain
and manage their forests sustainably. Although they are foregoing revenues (just as the
oil nations would), the compensation is not intended only to pay for lost revenues but also
to pay for enforcement of forest laws and other sustainable forest management costs.
A more interesting and subtle approach has been promoted by Ecuador. They are
offering never to develop some of their proven oil reserves if northern countries
compensate them. Unlike a general claim for compensation, Ecuador has identified the
specific oil fields, which also happen to lie under a biodiversity-rich area that many
international groups would like to see conserved. This approach is not significantly
different than the general claim of compensation for deferred revenues, but it has gained
greater attention because of the double benefits of biodiversity conservation.
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2. Depending on how the climate regime develops, it could launch one of the largest
transfers of assets from the North to the South. Already, through the Clean Development
Mechanism, the climate regime has created important incentives for some green
investment to flow into developing countries. Moreover, if, for example, the climate
regime tends toward some equitable allocation of the Earth's ability to assimilate
greenhouse gas emissions (i.e. through a global allocation of pollution credits), then the
global South would potentially be able to raise considerable capital through the sale of
carbon credits.
In the recent negotiations, the South’s potential leverage in the negotiations has become
clear. Certainly, China, India and Brazil are now seen as absolutely essential because of
the growing size of their emissions. The United States and China are engaging in parallel
bilateral discussions, because agreement between them is necessary for the broader
regime. Moreover, the decision in the Bali work plan leading up to Copenhagen that the
parties will address adaptation, compensation from avoided deforestation (REDD), and
technology transfer reveals the continuing importance of the South’s participation in the
climate regime.
This question can be a good one to get students thinking about the enormous complexity
with developing a global climate regime, as well as the enormous implications for global
equity. It’s Environmental Economics 101: How you allocate the pollution rights for
greenhouse gas emissions may have less an impact on the ultimate level of pollution but
could have profound impact on who wins and who loses in the allocation. This may be
one of the South's best chances for gaining a valuable resource through international law
(namely, rights to emit greenhouse gases and the ability to sell those rights to the global
North).
III.
The Negotiations of the UN Framework Convention (p. 139)
Although ancient history in some ways, the negotiating history of the UNFCCC
continues to be important for understanding the current climate regime and ongoing
negotiations regarding future climate policies. The same concerns, for example over how
quickly we must curb GHG emissions, how many financial resources will need to be
transferred to the South, whether to develop a global carbon market, or how to address
forest degradation, animated the earliest international discussions and continue today.
The history also gives students a sense of how long the international community has been
wrestling with climate change and how much time has been lost in establishing a strong
global regime. This section is provided primarily as background for the students in
interpreting and understanding the trade-offs in the UNFCCC; we do not spend much
class time on the negotiating background of the UNFCCC.
A.
The Early Years: Building Support for an International Convention on
Climate Change (p. 140)
Questions and Discussion (p. 144-45)
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1. A more comprehensive approach to the global atmosphere might allow for greater
policy coherence between different international regimes aimed at curbing global pollution.
Most notably, as discussed further in Chapter 10, there are significant policy and scientific
connections between the issue of ozone depletion and global warming. In some cases,
these regimes have not been sufficiently well coordinated, and perhaps if they were all
managed under one institutional structure with one set of general principles, there would be
a greater chance of coordination and effective policy coherence.
2. The numerical goals set forth in the 1988 Toronto Statement included: (1) reducing CO2
20 percent below 1988 levels by 2005; (2) 10 percent energy efficiency improvements by
2005; and 10 percent energy supply “improvements” (i.e. renewable energy or nuclear) by
2005. As the text noted, we have clearly not achieved the first standard, but progress is
currently being made on the second two, although at least in the United States we have not
achieved them. Also, note that the baseline now used for most discussions in climate
change is 1990 or even later for renewable or energy efficiency standards, so gaining this
data from 1988 baseline (used in the Toronto Statement) is not as easy.
3. Conferences like the Toronto Conference are frequently used as a process for furthering
negotiations because they allow the space for countries to announce new initiatives or to
informally explore potential common ground freed from the pressure of actual negotiations.
Moreover, such conferences can bring non-state actors, including scientists and other
experts, into the process to provide additional pressure or support for ongoing negotiations.
The Third World Conference on Climate Change, for example, was held in the fall of 2009
and showcased new science and economic analyses of climate change. That Conference
added to the political pressure that is building for an agreement in Copenhagen.
4. The only substantive criteria included in the negotiating framework for the UNFCCC
were that it be an “effective framework convention on climate change, containing
appropriate commitments.” These neither provided any significant guidance nor really
constrain the negotiators. It was thus left for the negotiations the difficult issue of whether
the UNFCCC would include specific emission reduction targets.
B.
Negotiations of the UNFCCC (p. 145)
Questions and Discussion (p. 147-49)
1. This note is self-explanatory.
2. The negotiations were hosted by an Intergovernmental Negotiating Committee (an
INC), which is an ad hoc meeting open to all governments that is formed under the
auspices of the UN General Assembly, but that has no formal structure beyond what is
necessary to conduct the negotiations. This question is also partly intended to get the
students to begin researching language on ratification, etc., in the actual text of the
convention.
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IV.
The UN Framework Convention on Climate Change (p. 149)
Reaching consensus on the UN Framework Convention on Climate Change
(UNFCCC) was a remarkable achievement, given the vastly different positions that
various countries held with respect to climate change. Undoubtedly, the consensus was
supported by the desire to complete the agreement for the Earth Summit, although even
without UNCED there would have been a climate change convention. The other main
reason consensus was reached is that ultimately the UNFCCC was so watered down that
it was mostly unobjectionable to all Parties. The United States, for example, argued
successfully against any targets and timetables, putting that decision off for another five
years until the 1997 Kyoto Protocol (the United States then rejected the Kyoto targets).
To teach the UNFCCC, we often highlight several issues, including:
· What does it mean to be a “framework” convention and what specific provisions
does it include for improving the international governance of climate change?
· What is the objective of the UNFCCC (i.e. stabilization of GHG concentrations)
and how does that shape the scope of the regime (i.e. extend the convention to sinks)?
· What principles can be found in the UNFCCC and how does the convention
contribute to the evolution of those principles?
· What binding commitments, if any, does a Party face in joining the UNFCCC?
· The institutional architecture and procedures for evaluating the convention's
effectiveness and developing the climate regime over time (e.g., the process that led to
the Berlin Mandate and then the Kyoto Protocol).
The ensuing parts of this section address these primary teaching points of the
UNFCCC: the principles, objectives, commitments, and institutional architecture
established by the convention, as well as the overall effectiveness of the frameworkprotocol approach to climate change.
Problem Exercise: Reading the UNFCCC (p. 149-50)
(1) Annex II does not include the countries with economies in transition (i.e. the former
Soviet Union). Those countries were heavily industrialized and inefficient and thus
agreed to the same substantive obligations (vague though they were) to reduce their GHG
emissions. They did not, however, agree to provide any financial assistance to, or
otherwise support, developing countries under the UNFCCC. See, e.g., Articles 4.3-4.5.
(2) See Article 14.3: “The Parties shall make every effort to reach agreement on any
proposed amendment to the Convention by consensus. If all efforts at consensus have
been exhausted, and no agreement reached, the amendment shall as a last resort be
adopted by a three-fourths majority vote of the Parties present and voting at the meeting.”
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Amendments only bind those parties that accept the amendments.
(3) According to Article 1.7., “Reservoir” means a component or components of the
climate system where a greenhouse gas or a precursor of a greenhouse gas is stored.
According to Article 1.8., “Sink” means any process, activity or mechanism which
removes a greenhouse gas, an aerosol, or a precursor of a greenhouse gas from the
atmosphere. All Parties are supposed to cooperate in the conservation and enhancement
of sinks and reservoirs (Art. 4.1.), and Annex I Parties (industrialized countries) are
supposed to include the conservation and enhancement of sinks in their policies and
measures implemented under Art. 4.2.
(4) Article 7.2 lists the following responsibilities of the Conference of the Parties:
The Conference of the Parties, as the supreme body of this Convention,
shall keep under regular review the implementation of the Convention and
any related legal instruments that the Conference of the Parties may adopt,
and shall make, within its mandate, the decisions necessary to promote the
effective implementation of the Convention. To this end, it shall:
(a) Periodically examine the obligations of the Parties and the institutional
arrangements under the Convention, in the light of the objective of the
Convention, the experience gained in its implementation and the evolution
of scientific and technological knowledge;
(b) Promote and facilitate the exchange of information on measures
adopted by the Parties to address climate change and its effects, taking
into account the differing circumstances, responsibilities and capabilities
of the Parties and their respective commitments under the Convention;
(c) Facilitate, at the request of two or more Parties, the coordination of
measures adopted by them to address climate change and its effects, taking
into account the differing circumstances, responsibilities and capabilities
of the Parties and their respective commitments under the Convention.
(d) Promote and guide, in accordance with the objective and provisions of
the Convention, the development and periodic refinement of comparable
methodologies, to be agreed on by the Conference of the Parties, inter alia,
for preparing inventories of greenhouse gas emissions by sources and
removals by sinks, and for evaluating the effectiveness of measures to
limit the emissions and enhance the removals of these gases;
(e) Assess, on the basis of all information made available to it in
accordance with the provisions of the Convention, the implementation of
the Convention by the Parties, the overall effects of the measures taken
pursuant to the Convention, in particular environmental, economic and
social effects as well as their cumulative impacts and the extent to which
progress towards the objective of the Convention is being achieved;
(f) Consider and adopt regular reports on the implementation of the
Convention and ensure their publication;
(g) Make recommendations on any matters necessary for the
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implementation of the Convention;
(h) Seek to mobilize financial resources in accordance with Article 4,
paragraphs 3, 4 and 5, and Article 11;
(i) Establish such subsidiary bodies as are deemed necessary for the
implementation of the Convention;
(j) Review reports submitted by its subsidiary bodies and provide guidance
to them;
(k) Agree upon and adopt, by consensus, rules of procedure and financial
rules for itself and for any subsidiary bodies;
(l) Seek and utilize, where appropriate, the services and cooperation of,
and information provided by, competent international organizations and
intergovernmental and non-governmental bodies; and
(m) Exercise such other functions as are required for the achievement of
the objective of the Convention as well as all other functions assigned to it
under the Convention.
The CoP was scheduled to meet the first time within one year of the UNFCCC entering
into force. Article 7.4.
(5) See Paragraph 4.2.(a): “Each of these Parties shall adopt national policies and take
corresponding measures on the mitigation of climate change, by limiting its
anthropogenic emissions of greenhouse gases and protecting and enhancing its
greenhouse gas sinks and reservoirs. These policies and measures will demonstrate that
developed countries are taking the lead in modifying longer-term trends in anthropogenic
emissions consistent with the objective of the Convention, recognizing that the return by
the end of the present decade to earlier levels of anthropogenic emissions of carbon
dioxide and other greenhouse gases not controlled by the Montreal Protocol would
contribute to such modification…”
(6) See Article 14.1 “In the event of a dispute between any two or more Parties
concerning the interpretation or application of the Convention, the Parties concerned shall
seek a settlement of the dispute through negotiation or any other peaceful means of their
own choice.” Parties may also have voluntarily agreed to accede to resolution at the ICJ
or to arbitration, but that requires both parties to have agreed. After twelve months, one
party can force the dispute to a “conciliation commission” (Article 14.6), any
recommendation from which must be followed in “good faith.”
A.
Selected Principles Underlying the UNFCCC (p. 150)
The principles included in the UNFCCC provide important background for
understanding and interpreting the convention. These principles also help set the policy
background for future negotiations, including those that led to the Kyoto Protocol and
those now taking place leading up to Copenhagen with respect to the post-Kyoto time
frame. Negotiators often invoke these principles to support their positions, and the
Secretariat and CoP are guided by the principles in interpreting and implementing the
climate regime. Many of these principles are also emerging principles in international
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environmental law that may be or soon will be considered binding principles of
customary law. These principles could be used to assist in deciding any disputes brought
to interpret the climate regime or otherwise to compensate victims of climate change (see
Chapter 8).
Questions and Discussion (p. 151)
1. The next subsections discuss in detail many of the key principles found in the
UNFCCC. Examples include the following:




Common concern is found in the preamble, acknowledging that change in the
Earth's climate and its impacts are a common concern of humankind. This is part
of the justification for why we need to have international cooperation on the
subject of climate change.
The principle of Common but Differentiated Responsibilities permeates the
UNFCCC text. For example, it is found explicitly in Article 3.1 and as a condition
on the commitments in Article 4. The preamble's reference to the disproportionate
influence of industrialized countries on causing climate change is a predicate for
the application of the principle to the substantive parts of the convention. The
commitments in Article 4 are divided between those commitments applicable to
all Parties (Article 4.1.) and those applicable to developed country Parties (Article
4.2). Not only does this division reflect the CDR principle, but Article 4.1's
imposition of commitments on all Parties is explicitly conditioned on the CDR
principle.
The Precautionary Principle is reflected in Article 3.3. Parties are directed to take
precautionary measures and the language of the Rio Declaration is repeated here,
modified to reflect the application to the climate change context.
Intergenerational equity is included in Article 3.1: the Parties “should protect the
climate system for the benefit of present and future generations of humankind, on
the basis of equity…” The reference to equity in this context may not only apply
to intergenerational equity, but also may apply to equity between countries. This
is particularly controversial, because the United States and other developed
countries do not want to allocate emissions targets on the basis of equity (because
otherwise the regime might become more about financial resource transfers to the
Global South).
2. Preambles provide some of the context, findings, assumptions, and guiding principles
for interpreting the substantive provisions of a treaty. They also frequently explain how
the treaty relates to previous instruments or decisions, providing some of the “legislative
history” of the instrument.
1.
State Sovereignty (p. 151)
State sovereignty is a fundamental cornerstone of public international law; it is
also the political and legal counter-weight to the many ecological and economic trends
that are pushing countries toward international cooperation, including climate change.
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Sovereignty arguments lurk just beneath the surface of most countries’ objections to new
international climate commitments.
State sovereignty is thus the general background rule with respect to sustainable
development and environmental protection, at least within the borders of a state. Where
there are transboundary impacts, then state sovereignty may yield to the duty to
cooperate, and the obligation to cooperate with other states may begin to define the outer
limits of sovereignty. In the climate context, that the atmosphere and the climate system
are global “commons” and that protecting the planet from climate change is a “common
concern” are the counter-weights to state sovereignty that require states to cooperate
internationally.
Questions and Discussion (p. 154-55)
1. This note is self-explanatory.
2. The principle not to cause environmental harm beyond the jurisdiction of your state is
the cornerstone of international environmental law, particularly in the context of
transboundary environmental disputes. The contours of the principle may define who
wins and who loses in specific cases of transboundary environmental harm. Despite this
(or perhaps because of it), the contours of the obligation not to cause environmental harm
are not clear in international law. There simply have not been enough cases and opinions
on the subject to provide a good handle on how the principle will be applied in the
climate context. The principle is discussed more in Chapter 8, at page 326.
2.
Common Concern of Humankind (p. 155)
As suggested by the text, the principle of common concern is the conceptual
framework justifying international cooperation in the climate context. Recall that the UN
Charter does not identify the environment, let alone climate change, as one of the subjects
requiring international cooperation. Until the Earth Summit, international cooperation in
the field of the environment was predicated on specific factors related to the issue being
discussed. Thus, for example, the sustainable management of whales was the subject of
international cooperation because whales are migratory. The Law of the Sea Convention
could address environmental issues at the international level because it addressed the
oceans, a global commons. The Convention on International Trade in Endangered
Species was appropriate because the trade was international.
In addressing climate change, the international community must be focused on
many issues that had theretofore been thought of as wholly within a State's sovereign
authority—for example, the use of natural resources within a State (for example, coal or
oil) or the management of activities within a State (e.g., forest or agricultural practices).
The search for a conceptual framework that justified international cooperation in the
climate and similar contexts resulted in the development of the principle of common
concern. Common concern is thus a somewhat undefined concept that explains why
international society seeks to “regulate” on certain issues.
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Questions and Discussion (p. 156-57)
1. This note is self-explanatory.
2. The “global unity” of the atmosphere highlights the fact that the atmosphere cannot be
divided and that it flows and mixes around the planet. In the climate context, this reflects
how greenhouse gases emitted anywhere on the planet will be intermixed throughout the
global atmosphere. Emissions added (or reduced) anywhere will add (or reduce) GHG
concentrations globally, not locally. The global unity of the atmosphere thus underscores
the need for international cooperation in protecting the atmosphere.
3. As noted above and in the text, that climate change is viewed as a principle of
“common concern” means, at a minimum, that it is a subject requiring international
cooperation. Although the obligation to cooperate typically is believed to include an
obligation to cooperate in good faith, there is little evidence that either the duty to
cooperate or the principle of common concern requires any substantive outcome at all.
4. The Rio Declaration, taken as a whole, does seem to suggest that sustainable
development may now be an issue of common concern, or at least that the right to
development should now be modified by the concept of sustainability. Viewing
sustainable development as a common concern conceptually at least could restrict a
state's sovereign rights to exploit its own resources in an environmentally destructive
way, thus broadening the obligation not to cause transboundary environmental harm
(which is discussed above and in Chapter 8.
3.
The Right to Sustainable Development (p. 158)
As noted in the text, the right to development is a critical right for developing
countries as the basis for demands that they be able to follow their own development path
in seeking sustainable livelihoods and standards of living more closely approximating
those in the North. In the climate context, the right to development serves as a reminder
of global economic inequality, and the need to prioritize raising the living standards of
the global poor even as we try to address climate change.
Modifying the right to development with the concept of sustainability is quite
controversial and in fact may not be accepted by most countries, particularly developing
countries. Rather, they see sustainable development as only indirectly relevant to the
right to development. More consensus exists around recognizing that sustainable
development requires generally the integration of environmental concerns with efforts
aimed at economic development. This is also consistent with the emerging legal
dimension of sustainable development, which in some contexts has been found to require
the consideration of environmental aspects of development projects.
Questions and Discussion (p. 159-61)
1. This note is self-explanatory.
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2. This note is self-explanatory.
3. Sometimes discussion over the right to development has been laced with criticism of
the donor countries, particularly the United States, and tied to a claim that the developing
countries are owed development funding as a legal or at least moral right. The rhetorical
significance of development being a “right” is not lost on the United States. Moreover,
the United States is generally not as supportive of economic and social rights, as it is of
civil and political rights. Given these considerations, it is hardly surprising that the
United States rejects the “right” to development and with it any suggestion that
development assistance is “owed” either to individuals or to developing countries. Rather
than suggesting any right to a certain level of development, the United States believes the
right is merely a statement of independence and autonomy—States have a right to choose
their own development paths, control the use of their resources, and reap the benefits
from that use.
4. Although the language is certainly modified in ways that would allow for the global
community to adopt trade measures as part of a global treaty, the language also reflects a
general dislike of such measures. It thus should come as no surprise that trade-related
measures are not to date a central part of the international climate regime. The question is
placed here primarily to foreshadow the more substantive discussion of trade and climate
change in chapter 10.
5. This note is self-explanatory.
4.
Common but Differentiated Responsibilities (p. 161)
Questions and Discussion (p. 163-64)
1. The obligations in Article 4.1. mostly require cooperation generally with respect to
various aspects of climate change. The one significant exception is the requirement to
provide national inventories of all GHG sources to the UNFCCC secretariat. Developing
countries are supported in fulfilling this reporting requirement by financial assistance
from the developed countries. Article 4.2., although vague, does suggest that the
developed parties will be taking steps to curb their contributions to climate change by
“adopting policies and taking corresponding measures.”
2. This note is self-explanatory.
3. Characterizing financial assistance as an obligation allows developing countries to tie
the provision of such assistance to their own substantive obligations under the climate
regime. Thus, developing countries have argued that their obligation to meet
requirements under the regime is dependent on the North’s meeting its obligations to
provide sufficient financial support. If the support is not forthcoming, then the South is
not obligated to meet its obligations. If the financial support is continued voluntary
foreign assistance by the North, then the South would still be bound by the climate
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regime’s obligations even if the North failed to meet its voluntary commitments.
4. The United States was clarifying that in agreeing that states have “different
contributions to global environmental degradation” and in “acknowledging the
responsibility that [developed countries] bear,” the industrialized countries were not
agreeing to any legal liability or responsibility. The United States would not
acknowledge, for example, that industrialized countries had violated the obligation not to
cause environmental harm and were therefore responsible under international law for
reparations.
5. The principle arguably does reflect the different levels of development in rich versus
poor countries, although it is mostly used to explain why industrialized countries need to
pay for incremental pollution control efforts in developing countries and also why those
developing countries should receive additional time to meet their substantive obligations.
The principle does not necessarily allow developing countries an entirely free pass to
pollute, however—the obligation not to pollute in a way that harms other states or the
global commons, for example, would likely be viewed as within the “common”
responsibilities of all states.
6. As suggested by the discussion immediately above with respect to Question 5, it may
be possible to meet Professor Stone’s concerns about the principle while still allowing for
the differentiated responsibilities of various states (with respect to, for example,
compliance schedules, financial assistance, or technology transfers). More problematic
from Professor Stone’s perspective is the developing countries’ argument that their
obligations not to pollute under the climate regime may be directly dependent on the
North’s fulfillment of its differentiated responsibilities (e.g., of providing financial
assistance).
5.
Equity (p. 164)
The principle of equity is a principle of fairness. Its inclusion in the UNFCCC
reflected the view of developing countries that levels of poverty and development should
be relevant in how the climate regime progressed and how it was implemented. In recent
years, the principle of equity has also been invoked by human rights advocates and others
to argue that the climate change regime needs to address climate change impacts,
particularly on vulnerable groups.
6.
Intergenerational Equity (p. 165)
To some extent, intergenerational equity embodies the central concept of
sustainable development, i.e. that you should meet the needs of today without sacrificing
the needs of future generations. Conceptually the principle is quite provocative, because
among other things it forces decision makers to come to grips with the long-term
implications of their decisions. In the climate change context, the principle is particularly
useful given the long time lags between emissions and climate impacts. Many climate
impacts are still predicted for decades in the future; the principle of intergenerational
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equity reminds us to take more seriously those distant impacts than we might otherwise.
Questions and Discussion (p. 166)
1. This note is self-explanatory.
2. If we took intergenerational equity seriously, we could, for example, follow the
precedent of the Philippines and allow standing for future generations. We may also want
to eliminate the use of discount rates, since the costs and benefits of future generations
would presumably be valued the same as today's costs and benefits. We may also need to
invoke the precautionary principle more frequently in an effort to avoid significant future
harms.
The environmental justice movement is really all about intragenerational equity in that it
is trying to highlight inequities in the current impacts of environmental harms. It
emphasizes how the burden of environmental harms is falling most on the poorest
communities, adding to their impoverishment. The movement started as a merger of the
civil rights and environmental movements here in the United States; internationally, the
concept of environmental justice is starting to catch on as well, often with a focus more
on the impacts faced by marginalized groups in rural areas. Given the predominance of
resource extraction industries in developing countries' economies, the environmental
harms of those countries often fall disproportionately on the rural poor (whose land and
resources are often those that are taken for the country's exploitation of its forests or
minerals).
7.
The Precautionary Principle
Questions and Discussion (p. 167-68)
1. The precautionary principle does help provide a justification for acting to curb climate
change even where there may be some doubt about the causes or ultimate impacts. This
may have been more important in 1992 than it is today, when much less uncertainty
surrounds the basic understanding of climate change. Still, the pace and severity of many
climate impacts are still uncertain, and reference to the precautionary principle can add
another reason for immediate action even if we are not certain of all impacts.
2. This note is self-explanatory.
3. This note is self-explanatory.
B.
The UNFCCC Objective (p. 169)
This section draws the student’s attention to the objective of the UNFCCC. This
is an important provision of any framework convention, but it has proven to be
particularly important in the UNFCCC. Given that the objective allows for some clear
evaluation of whether it has been met or not, it has proven to be an important part of the
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dynamic process of the climate regime. As we can not yet say that we have met the
objective (or even that we have a chance of meeting the objective), the need for further
“policies and measures” under the climate regime is clear. Focusing on the objective also
gives the professors a chance to remind the students that we must read treaties carefully
(like domestic regulation) and that the words, carefully negotiated as they are, reflect
important compromises and have significant implications for the development of the
climate regime.
Questions and Discussion (p. 170-71)
1. Meeting the UNFCCC’s objective is a continual process and one that is dependent on
the evolving science. Thus far, scientists do not have complete agreement on what level
of GHG concentrations in the atmosphere will ensure that we avoid rapid climate change
events. Indeed, as time has gone on, scientists are generally revising downward the
ultimate target for atmospheric GHG concentrations necessary to meet the UNFCCC
objective of avoiding major impacts.
2. The UNFCCC’s objective ensured that the convention extended beyond CO2 to all
GHGs not covered by the Montreal Protocol, and by focusing on atmospheric
concentrations (instead of just emissions), the convention extended to issues of forest
management, land-use, and even ocean management (as oceans are significant sinks).
This extends the convention to so many sectors that it invites attention (and opposition)
from even more powerful economic actors. On the other hand, limiting the convention
would have left negotiators open to the criticism that they were not addressing all of the
issues.
3. This note is self-explanatory.
4. By tying the success of the UNFCCC to the adaptation of ecosystems, food production
and sustainable development, the objective arguably ties the Convention’s success to
scientifically demonstrable (or at least debatable) criteria. This provides a role for
scientists, economists and others to participate in the discussion of whether additional
policies and measures are necessary under the climate regime. It also expands the UN
institutions that have a role to play, including UNEP (ecosystems), FAO (food
production), and UNDP (sustainable development), for example.
5. This note is self-explanatory.
6. This note is self-explanatory.
C.
Commitments (p. 171)
This section describes the commitments taken by various Parties to the UNFCCC. In
general, as noted above, the UNFCCC includes commitments for three categories: “all
Parties” (see, e.g., Art. 4.1); developed country Parties listed in Annex I that take on a
general requirement to implement policies and measures to curb greenhouse gas
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emissions (see, e.g. Art. 4.2) and developed country Parties not including those countries
with economies in transition that are responsible for providing financial assistance and
technology transfer (see, e.g., Annex II and Art. 4.3-4.5).
Questions and Discussion (p. 178)
1. The primary commitment is to “adopt national policies and take corresponding
measures” to limit GHG emissions or enhance sinks. Although Arts. 4.2(a) and 4.2(b)
when read together provide an aspirational target of returning to 1990 levels by the year
2000, the language is carefully crafted to ensure that the target is neither binding nor
enforceable. Additional commitments includes providing financial support, developing
an inventory of sources and sinks, submitting annual reports on GHG emissions and steps
taken to curb them, and a variety of obligations to cooperate or take steps on climate
science, education and technology transfer.
2. It is hard to see how the United States or any Party can be held responsible for
commitments made in the UNFCCC, at least if the Party inventories its sources and sinks,
creates a programme for mitigating climate impacts and adopts some policies and
measures on the mitigation of climate change. The strongest argument that the United
States has violated the UNFCCC is under Article 4.2. The United States is required to
adopt "policies and corresponding measures" to mitigate climate change by limiting
emissions and protecting sinks. Reading Article 4.2(a) and 4.2(b) together suggests that
these measures should be designed to achieve 1990 levels of emissions by the end of the
decade. It was clear that the policies and measures promoted by the Clinton
Administration were not going to get the United States anywhere near 1990 levels, so
many people thought the United States was violating the convention. Since Article 4.2(a)
refers to the “end of the decade” it is hard to see whether the standard extends beyond the
year 2000. Perhaps the United States is continually in violation after 2000 if it does not
adopt any policies or measures aimed at achieving 1990 levels.
3. See note 2 above.
4. As suggested above in note 1, the UNFCCC states an aspirational target (returning to
1990 levels by 2000), but does so in a way that is not likely to be considered binding. In
this way, countries seeking a target could point to the fact that a target was identified,
whereas countries resisting a target could point out that the target is not binding.
5. This note is self-explanatory. As pointed out, Joint Implementation as well as other
flexibility mechanisms are discussed further in Chapter 6.
Questions and Discussion (p. 182)
1. Under Article 4.3., the developed countries are expected to provide “new and
additional” resources to meet the “full agreed incremental costs” developing countries
face in complying with their commitments under the treaty. Developing countries may
not be fully excused from complying with all of their obligations, but they do make clear
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that their “effective implementation” of any obligations is clearly dependent on available
resources from developed countries. Thus, if only partial financial support is made
available, then developing countries may only effectively implement part of their
obligations.
2. The UNFCCC clearly did not impose a tax or fee on fossil fuel use to generate revenue
for supporting developing countries. For the most part, the parties rely on donations of
foreign assistance. The one major exception is the creation of the Adaptation Fund under
the Kyoto Protocol. That fund receives 2% of the value of any Clean Development
Mechanism (CDM) project, as a way to fund adaptation. This fee on CDM projects is not
seen as foreign assistance but rather as a donation or a cost of doing business under the
CDM.
3. This note is self-explanatory.
4. The language in Article 4.3 refers back to the commitments in Article 4.1, which do
not easily include economic losses from shifting towards new energy sources. On the
other hand, the use of the word “effects” from climate change could arguably be general
enough to extend to the economic losses from declines in demand for oil. To be sure, no
countries outside of the OPEC countries believed that oil-rich states should be
compensated for the decline in demand for their products, but the language is sufficiently
vague to allow them to continue their arguments.
E.
Institutional Architecture (p. 182) (Note that this section is
misnumbered and should be Section D.)
Questions and Discussion (p. 183-84)
1. This note is self-explanatory.
2. This note is self-explanatory.
3. This note is self-explanatory.
4. This note is self-explanatory.
V.
Evaluating the UNFCCC: the Framework-Protocol Model (p. 184)
This section’s text as well as Question 1 highlight the role of the UNFCCC as a
framework convention. In international environmental law generally, and certainly with
respect to climate change, negotiators have generally taken the approach that it is
important to start slowly and create a “big tent” where all countries are at the table. The
idea is that over time, regimes such as the climate regime can be adapted to reflect
emerging science, economic data or shifting values. This suggests that the UNFCCC
should not be evaluated only on its face, but also on how well it set the stage for further
negotiations and commitments. The dynamic nature of the climate regime is still evident
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today as we negotiate in the lead-up to Copenhagen and it will undoubtedly be true a
decade hence.
Questions and Discussion (p. 185-87)
1. This note is self-explanatory.
2. This note is self-explanatory.
3. The UNFCCC appears to measure up well with the Bodansky criteria, which are also
very consistent with the concept of a “framework” convention. These criteria can be a
good way to spark student discussion about the UNFCCC, because students generally
have differing views of the UNFCCC.
4. To some extent, we seem to have a series of major negotiations: UNFCCC, Kyoto,
and now Copenhagen, with each round building on the last but also potentially adding
new issues or approaches (although it is too soon to predict what will emerge, if anything,
from Copenhagen). Another way to approach these negotiations that might have been
more similar to the WTO rounds would have been to divide up the issues to be negotiated
according to pollutants or industrial sectors. Thus, for example, the first round could have
addressed only carbon dioxide or only electricity generation. Subsequent rounds could
have addressed manufacturing, forests, or agriculture, for example. Perhaps this would
have simplified the negotiations and allowed for more significant progress.
5. This note is self-explanatory.
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