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The Kyoto Protocol to the United Nations Framework Convention on Climate Change

Published online by Cambridge University Press:  27 February 2017

Clare Breidenich ,
Daniel Magraw ,
Anne Rowley  and
James W. Rubin
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Extract

In December 1997, in Kyoto, Japan, over 160 parties to the 1992 United Nations Framework Convention on Climate Change (FCCC or Convention) adopted the Kyoto Protocol, which, for the first time, establishes legally binding limits for industrialized countries on emissions of carbon dioxide and other “greenhouse gases.” The Kyoto Protocol (the Protocol) is quite complex, reflecting the complicated political, economic, scientific and legal issues raised by human-induced climate change. The result of more than two years of preparatory discussions and eleven days of often-intense negotiations in Kyoto, the Protocol will be opened for signature in March 1998 for one year, although countries may accede to it after that period. It will enter into force ninety days after at least fifty-five parties to the FCCC, encompassing FCCC Annex I parties that accounted in total for at least 55 percent of the total emissions for 1990 of carbon dioxide (CO2) of Annex I parties, have ratified, accepted, approved or acceded to the Protocol.

Type
Current Developments
Information
American Journal of International Law , Volume 92 , Issue 2 , April 1998 , pp. 315 - 331
Copyright
Copyright © American Society of International Law 1998

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References

1 United Nations Framework Convention on Climate Change, opened for signature June 4, 1992, S. Treaty Doc. No. 102–38 (1992), 31 ILM 849 (1992) (entered into force Mar. 21, 1994) [hereinafter FCCC].

2 Kyoto Protocol to the FCCC, FCCC Conference of the Parties, 3d Sess., UN Doc. FCCC/CP/1997/L.7/Add.1 (Dec. 10, 1997) (text did not represent the final version owing to last-minute negotiations, and the articles were renumbered after technical corrections were made to the text), 37 ILM 22 (1998), (bna.com/prodhome/ens/text3.htm) [hereinafter Kyoto Protocol]. The final version of the Protocol was issued as part of the Third Conference of the Parties report, UN Doc. FCCC/CP/1997/7/Add.2.

3 In addition to carbon dioxide, these gases include nitrous oxide, methane, sulfur hexafluoride, hydrofluorocarbons and perfluorocarbons. Other gases, such as chlorofluorocarbons (CFCs) also exhibit “greenhouse” characteristics but, because of their effects on stratospheric ozone depletion, are controlled by the Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, S. TREATY Doc. No. 100–10 (1987), 26 ILM 1541 (1987) (entered into force Jan. 1, 1989) [hereinafter Montreal Protocol]. Such gases are referred to as “greenhouse gases” because of their ability to trap, in the earth’s atmosphere, infrared radiation from the earth’s surface—radiation that would otherwise be reflected back into space. This radiation, in turn, warms the earth and its atmosphere. See, e.g., World Meteorological Organization/United Nations Environment Programme Intergovernmental Panel on Climate Change, Climate Change: The IPCC Scientific Assessment at xxxvi (Houghton, J. T., Jenkins, G.J. & Ephrams, J. J. eds., 1990)Google Scholar [hereinafter IPCC 1990 Report].

4 The following acronyms, listed in alphabetical order with the terms that they represent, are used frequently in the text of this report: AIJ—activities implemented jointly; CDM—Clean Development Mechanism; CFC—chlorofluorocarbon; COP—Conference of the Parties (to the United Nations Framework Convention on Climate Change); C02—carbon dioxide; EC—European Community; FCCC—United Nations Framework Convention on Climate Change; GHG—greenhouse gas; HFC—hydrofluorocarbon; IPCC—Intergovernmental Panel on Climate Change; JI—joint implementation; LUCF—land use change and forestry sector; MOP—meeting of the parties (to the Kyoto Protocol); NaO—nitrous oxide; OECD—Organisation for Economic Cooperation and Development; PFC—perfluorocarbon; SF6—sulfur hexafluoride; QELRO—quantified emissions limitation and reduction objective.

5 Kyoto Protocol, supra note 2, Art. 24(1).

6 Id., Art. 25(1). For the meaning of “FCCC Annex I parties,” see text at notes 14–15 infra.

7 Absent the greenhouse effect, Earth’s average temperature would drop from approximately 60°F to 5°F—too cold to sustain life as we know it.

8 IPCC 1990 Report, supra note 3, at xi.

9 Id.

10 See World Meteorological Organization/United Nations Environment Programme Intergovernmental Panel on Climate Change, Climate Change 1995: The Science of Climate Change, Contribution of Working Group 1 to the Second Assessment Report of the Intergovernmental Panel on Climate Change at 4–5 (Houghton, J. T., Meira Filho, L. G., Callander, B. A., Harris, N., Kattenberg, A. & Maskell, K. eds., 1996)Google Scholar [hereinafter 1995 Second Assessment Report].

11 See, e.g., id. at 5–7.

12 FCCC, supra note 1, Art. 2.

13 Montreal Protocol, note 3 supra.

14 The original Annex I countries are Australia, Austria, Belarus, Belgium, Bulgaria, Canada, Czechoslovakia, Denmark, the European Community, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, the Netherlands, New Zealand, Norway, Poland, Portugal, Romania, the Russian Federation, Spain, Sweden, Switzerland, Turkey, Ukraine, the United Kingdom and the United States.

15 Since the FCCC was opened for signature, additional countries have joined the OECD, and there is no consensus among the FCCC parties as to whether some of these new OECD members should become Annex I countries. This applies in particular to “newly industrialized countries” such as Mexico and South Korea.

16 FCCC, supra note 1, Art. 3 (1). The concept of common but differentiated responsibilities is also recognized in Principle 7 of the Rio Declaration on Environment and Development, which states:

States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.

Rio Declaration on Environment and Development, June 14, 1992, 31 ILM 874, 877 (1992).

17 IPCC 1990 Report, supra note 3, at xi. Similarly, the IPCC calculated that a 15%-20% reduction in methane emissions from human-induced activities would be necessary to stabilize atmospheric concentrations of methane at 1990 levels. Id.

18 FCCC Conference of the Parties, 1st Sess., UN Doc. FCCC/CP/1995/7/Add.1, Decision 1/CP.1, at 4–6 (June 6, 1995) [hereinafter Berlin Mandate]. QELROs are essentially targets for emissions reductions. Policies and measures are essentially items that parties adopt and act upon to attain their QELROs.

19 Id. at 3.

20 See e.g., Cheng, Zheng-Kang, Equity, Special Considerations, and the Third World , 1 Colo. J. Int’l Envtl. L. & poly 57, 61–63 (1990)Google Scholar.

21 Berlin Mandate, supra note 18, at 6.

22 The article numbers used here are those in the final official version of the Kyoto Protocol. The version issued at the end of COP-3, see note 2 supra, listed (final) Article 17 as Article 16 bis, with other numbering done accordingly.

23 For a discussion of why Turkey is not included under Article 3 of the Protocol, see note 28 infra.

24 Kyoto Protocol, supra note 2, Art. 3(7).

25 The FCCC, supra note 1, in Annex I identifies the following countries as “countries that are undergoing the process of transition to a market economy”: Belarus, Bulgaria, Czechoslovakia, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, the Russian Federation and Ukraine. Similarly, Annex B of the Kyoto Protocol, supra note 2, identifies Bulgaria, Croatia, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, the Russian Federation, Slovakia, Slovenia and Ukraine as countries that are undergoing the process of transition to a market economy.

26 See FCCC Conference of the Parties, 2d Sess., UN Doc. FCCC/CP/1996/15/Add.1, Decision 9/CP.2, at 16 (Oct. 29, 1996).

27 As of this writing, four parties—Bulgaria, Hungary, Poland and Romania—have chosen alternative base years.

28 The Annex B countries are Australia, Austria, Belgium, Bulgaria, Canada, Croatia, the Czech Republic, Denmark, Estonia, the European Community, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Poland, Portugal, Romania, the Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, Ukraine, the United Kingdom and the United States. There are some differences between this list and the original list of countries in FCCC Annex I (see the list in note 14 supra). These differences are due mainly to the dissolution of former Eastern European countries such as Czechoslovakia and Yugoslavia. Hence, the Czech Republic, the Slovak Republic, Slovenia and Croatia are all listed in Annex B but were not listed in Annex I. In addition, Turkey, which was listed in Annex I, has not ratified the FCCC and is not currently listed in Annex B.

29 FCCC, supra note 1, Art. 4(2) (a), (b).

30 The Community proposed an overall decrease in emissions of 15% but had reached internal agreement only on how to allocate a 10% reduction.

31 Kyoto Protocol, supra note 2, Art. 3(1).

32 Id., Art. 3(7).

33 Id., Art. 3(7), (9).

34 E.g., id., Art. 3(7).

35 Radiative forcing refers to “the perturbation to the energy balance of the Earth-atmosphere system . . . following, for example, a change in the concentration of carbon dioxide or a change in the output of the Sun,” measured in watts per square meter. 1995 Second Assessment Report, supra note 10, at 49. Although the atmospheric concentrations and radiative impacts of the synthetic GHGs are low at present, they have up to 20,000 times the global warming potential, on a per ton basis, of C02.

36 Kyoto Protocol, supra note 2, Art. 3(8).

37 FCCC, supra note 1, Art. 4(2) (a), (b).

38 Kyoto Protocol, supra note 2, Art. 3(3).

39 Id., Art. 3(7).

40 Article 13(1) of the Protocol states that the Conference of the Parties, as the supreme body of the Convention, “shall serve as the meeting of the Parties to this Protocol.” All other references in the Protocol text are to the Conference of the Parties serving as the MOP. For purposes of this report, reference to the MOP means the COP of the FCCC serving as the MOP to the Protocol.

41 FCCC Conference of the Parties, 1st Sess., UN Doc. FCCC/CP/1995/7/Add.1, Decision 5/CP.1, at 19 (June 6, 1995).

42 Id.

43 See id. at 20.

44 Target-based emissions trading of assigned amounts deals with transfers of portions of overall budgets from one country to another and therefore differs from JI, which is based on specific projects. While JI could produce transferable credits, emissions trading allows transfers in actual assigned amounts based on targets. Under target-based trading, each party is responsible for attainment of its assigned amount, adjusted for trading transactions, at the end of the commitment period. Thus, each party must ensure for purposes of attaining its commitment that the tons of emissions that it has sold are “good”; but there would be no requirement for external or independent certification of those tons. Conversely, under a JI system, the emission reductions generated would be subject to verification and reporting.

45 Kyoto Protocol, supra note 2, Art. 6(1) (c).

46 Id., Art. 6(2).

47 Id., Art. 17. JI under Article 6 is also subject to the requirement that it be supplemental to domestic actions to reduce GHG emissions. Id., Art. 6(2) (d).

48 Id., Art. 17.

49 Id., Art. 12(3) (b).

50 Id., Art. 12(8).

51 Id., Art. 12(4).

52 Id., Art. 12(7).

53 Id., Art. 12(5).

54 Id., Art. 12(10).

55 Id., Art. 2(4).

56 Id., Art. 2(3).

57 Id.

58 For example, under Article 10, parties would be required to

[f]ormulate, where relevant and to the extent possible, cost-effective national, and where appropriate regional programmes to improve the quality of local emission factors, activity data and/or models which reflect the socioeconomic conditions of each Party for the preparation and periodic updating of national inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, using comparable methodologies to be agreed upon by the Conference of the Parties, and consistent with the guidelines for national communications adopted by the Conference of the Parties.

Id., Art. 10(a). This requirement elaborates the commitments in the FCCC, supra note 1, Art. 4(1) (a), (b).

59 Opened for signature May 23, 1969, 1155 UNTS 331, 8 ILM 679 (1969). Article 60(2) (a) allows parties to a multilateral agreement to jointly suspend operation of the agreement, in whole or in part, or to terminate the entire agreement, either as among all the parties to the agreement, or between the defaulting party, on the one hand, and all other parties, on the other hand. A nondefaulting party to a multilateral treaty would be able to act unilaterally to suspend operation of the agreement, in whole or in part, between itself and the defaulting state only if that party is “specially affected” by the defaulting state’s breach of the agreement. See id., Art. 60(2) (b).

60 FCCC, supra note 1, Art. 4(2) (b).

61 Kyoto Protocol, supra note 2, Art. 5(1).

62 Id., Art. 5(2).

63 See FCCC Conference of the Parties, 1st Sess., UN Doc. FCCC/CP/1995/7/Add.1, Decision 4/CP.1, at 15 (June 6, 1995).

64 Kyoto Protocol, supra note 2, Art. 5(2).

65 The frequency of these national communications is to be determined by the MOP. Id., Art. 7(3). National communications under the FCCC were required six months after entry into force of the Convention for individual parties, and again in 1997. There is currently no schedule for providing additional FCCC national communications.

66 Id., Art. 7(4).

67 Id.

68 See FCCC, supra note 1, Art. 8(2), which is made applicable, mutatis mutandis, to the Protocol through its Article 14.

69 See FCCC Conference of the Parties, 1st Sess., UN Doc. FCCC/CP/1995/7/Add.1, Decision 3/CP.1, at 13 (June 6, 1995).

70 Kyoto Protocol, supra note 2, Art. 8(2).

71 Id., Art. 8(3).

72 Id.

73 Id., Art. 8(6).

74 Id., Art. 8(5).

75 Id., Art. 8(4).

76 FCCC, supra note 1, Art. 13.

77 As described above, under Article 6(1) (c) a party may not acquire any JI emission reduction units if it is not in compliance with Articles 5 and 7; and Article 6(1) (c) places a limit on the use of JI emission reduction units under certain circumstances relating to compliance. The multilateral consultative process established by the FCCC is potentially applicable to the Protocol through its Article 16, which requires the MOP to “consider the application to this Protocol of, and modify as appropriate, the multilateral consultative process referred to in Article 13 of the Convention, in light of any relevant decisions that may be taken by the [COP].” The functions of this process with respect to the Convention have not yet been fully defined by the COP. However, if the process is assigned functions relating to making recommendations or otherwise assisting parties in implementing their FCCC obligations, those functions might also be made applicable to implementation of Protocol commitments. In that event, those functions would be without prejudice to the compliance procedures and mechanisms called for by Article 18 of the Protocol. See Kyoto Protocol, supra note 2, Art. 16.

The FCCC dispute resolution process is more clearly made applicable to the Protocol. See id., Art. 19. Unlike the language in Article 16 referring to the multilateral consultative process, Article 19 contains no provision stating that the dispute resolution process would be without prejudice to the compliance procedures and mechanisms to be developed under Article 18. Consequently, it is conceivable that these two processes might eventually function as alternatives for dealing with cases of noncompliance. This is significant because the FCCC dispute resolution process is ultimately nonbinding, and it can be initiated by one party to the Convention (as opposed to by the COP). See FCCC, supra note 1, Art. 14.

78 Kyoto Protocol, supra note 2, Art. 18.

79 Id.

80 FCCC Conference of the Parties, 3d Sess., UN Doc. FCCC/CP/1997/L.7 (Dec. 10, 1997).

81 See id. at 2–3

* The first three authors work at the U.S. Environmental Protection Agency (EPA), and the fourth author for the Environment and Natural Resources Division of the U.S. Department of Justice. Each of them participated in various aspects of the Kyoto Protocol negotiations process. The views expressed herein are those of the authors and not necessarily those of the EPA, the Department of Justice, or the U.S. Government.