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The Sixth Session (Part Two) and Seventh Session of the Conference of the Parties to the Framework Convention on Climate Change

Published online by Cambridge University Press:  27 February 2017

David A. Wirth
David A. Wirth*
Affiliation:
Boston College Law School
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Extract

The reconvened sixth session of the Conference of the Parties (COP-6bis) to the UN Framework Convention on Climate Change (FCCC) took place in Bonn from July 16 to 27, 2001, under the presidency of Jan Pronk, Netherlands minister of housing, spatial planning, and the environment. The meeting was noteworthy as the occasion for adopting the Bonn Agreements on the Kyoto Protocol rules, a crucial juncture for entry into force of the principal international instrument for reducing emissions of greenhouse gases. The rules were adopted in final form as the Marrakesh Accords at the seventh session of the Conference of the Parties (COP-7), held in Marrakesh, Morocco, from October 29 to November 9, 2001.

Type
Current Developments
Information
American Journal of International Law , Volume 96 , Issue 3 , July 2002 , pp. 648 - 660
Copyright
Copyright © American Society of International Law 2002

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References

1 UN Framework Convention on Climate Change, May 9, 1992, Art. 7, S. Treaty Doc. No. 102-38 (1992), 1771 UNTS 108, reprinted in 31 ILM 849 (1992) [hereinafter FCCC] ; see generally Bodansky, Daniel, The United Nations Framework Convention on Climate Change: A Commentary, 18 Yale J. Int’l L. 451 (1993)Google Scholar; Nash, Marian (Leich), Contemporary Practice of the United States, 87 AJIL 103 (1993)Google Scholar. The FCCC, the Kyoto Protocol, and all other FCCC documents cited herein are available online at <http://unfccc.int>.

2 Kyoto Protocol to the UN Framework Convention on Climate Change, Dec. 10,1997, UN Doc. FCCC/CP/1997/ 7/Add.2, reprinted in 37 ILM 22 (1998) [hereinafter Kyoto Protocol]; see generally Depledge, Joanna, Tracing the Origins of the Kyoto Protocol: An Article-by-Article Textual History, UN Doc. FCCC/TP/2000/2 (2000)Google Scholar; Grubb, Michael With Vrolijk, Christiaan & Brack, Duncan, The Kyoto Protocol: A Guide and Assessment (1999)Google Scholar; Oberthur, Sebastian & Hermann, E. Ott, The Kyoto Protocol: International Climate Policy for the 21 St Century (1999)CrossRefGoogle Scholar; Breidenich, Clare, Magraw, Daniel, Rowley, Anne, & James, W. Rubin, The Kyoto Protocol to the United Nations Framework Convention on Climate Change, 92 AJIL 315 (1998)CrossRefGoogle Scholar; Sean, D. Murphy, Contemporary Practice of the United States, 93 AJIL 491 (1999)Google Scholar.

3 UN Doc. FCCC/CP/1998/16/Add.l (1999).

4 UN Doc. FCCC/CP/2000/5/Add.3 (vols. I-V) (2001).

5 UN Doc. FCCC/CP/2001/2/Rev.l & Adds.1-6 (2001).

6 UN Doc. FCCC/CP/2001/L.7 (2001).

7 UN Doc. FCCC/CP/2001/13/Adds.l-4 (2002).

8 FCCC, supra note 1, Art. 4, paras. 3-10, & Art. 11.

9 Kyoto Protocol, supra note 2, Art. 11.

10 See generally Robin, R. Churchill & Ulfstein, Geir, Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law, 94 AJIL 623 (2000)Google Scholar.

11 The special climate-change fund is designed to finance activities, programs, and measures undertaken by developing countries related to adaptation to climate change; transfer of technologies to combat or mitigate climate change; efforts in the sectors of energy, transport, industry, agriculture, forestry, and waste management; and diversification of the economies of developing countries. The least-developed-countries fund is designed to assist those countries in preparing and implementing their national action programs pursuant to the FCCC. The adaptation fund is intended to finance projects and programs designed to assist developing countries in responding to the effects of climate change (including in the areas of water-resources management, land management, agriculture, health, infrastructure development, fragile ecosystems, and integrated coastal zone management); in improving the monitoring, control, and prevention for diseases whose incidence may be affected by climate change; in building capacity with respect to the prevention, planning, and preparedness for climate-related disasters such as droughts and floods; and in establishing and strengthening national and regional networks for rapid responses to extreme weather events.

12 Articles 5 and 7 of the Kyoto Protocol require Annex I parties to establish systems for calculating their greenhouse gas emissions and to report them annually. The Marrakesh Accords contain standards for accounting and reporting of emissions units in accordance with the flexible mechanisms.

13 Kyoto Protocol, supra note 2, Art. 17.

14 Id., Art. 6.

15 Id., Art. 12.

16 Article 4 of the Kyoto Protocol allows regional economic-integration organizations to reapportion their obligations among their member states. This provision was drafted in anticipation of its utilization by the European Union (EU), which has adopted an internal agreement redistributing the EU member states’ uniform reduction target of 8 percent. While non-EU states raised questions in Bonn (and also earlier) concerning the terms of access to Article 4, the Marrakesh Accords do not treat the EU “bubble” as a mechanism subject to potential restrictions.

17 The Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16,1987,1522 UNTS 3, reprinted in 26 ILM 1550 (1987) (as adjusted and amended, at <http://www.unep.ch/ozone/montreal.shtml>), authorizes limited reassignment of rights to emit the chlorofluorocarbons and other gases controlled by that agreement, but the scale is not even close to that anticipated by the Kyoto Protocol. at <http://www.unep.ch/ozone/montreal.shtml>), authorizes limited reassignment of rights to emit the chlorofluorocarbons and other gases controlled by that agreement, but the scale is not even close to that anticipated by the Kyoto Protocol. See Elizabeth, P. Barratt-Brown, Building a Monitoring and Compliance Regime Under the Montreal Protocol, 16 Yale J. Int’l L. 519 (1991)Google Scholar. Title IV of the Clean Air Act Amendments of 1990, 42 U.S.C. §§7651-7651o (1994), provides for extensive trading of rights to emit sulfur dioxide, but that scheme is embedded in a municipal legal setting with much more obvious mechanisms for verification, compliance, and enforcement.

18 Kyoto Protocol, supra note 2, Art. 3, para. 3; see generally Oberthür & Ott, supra note 2, at 130-36.

19 Kyoto Protocol, supra note 2, Art. 3, para. 4. There is also a special exception in Article 3, paragraph 7 for states for which LULUCF constituted a net source of emissions in 1990, a provision inserted at the request of Australia. See Grubb, supra note 2, at 121.

20 Supra note 17; see, e.g., Sasha, Thomas-Nuruddin, Protection of the Ozone Layer: The Vienna Convention and the Montreal Protocol, in Administrative and Expert Monitoring of International Treaties 113,124–27 (Paul, C. Szasz ed., 1999)Google Scholar.

21 As of July 24, 2002, seventy-six states representing 36 percent of Annex I emissions in 1990 have ratified or acceded to the Kyoto Protocol. Japan and all EU member states have now ratified. See <href="http://unfccc.int/resource/kpstats.pdf> While not the only possible scenario leading to entry into force, ratifications by both Russia and Poland would now be sufficient to reach 55 percent.

22 See Intergovernmental Panel on Climate Change (IPCC), Climate Change 2001: Synthesis Report: Summary for Policymakers, question 2 (2001), at <http://www.ipcc.ch/pub/tar/syr/001.htm>. The IPCC, which met for the first time in November 1988, was created under the auspices of the UN Environment Programme and the World Meteorological Organization, with a mandate to study the climate-change issue primarily from a scientific perspective. The IPCC’s principal activities are divided among three working groups: a scientific one that addresses the causes of climate change (Working Group I); one that studies the social and environmental impact of climate change (Working Group II); and one that addresses response options for limiting greenhouse gas emissions and mitigating the effects of climate change (Working Group III). The IPCC’s First and Second Assessment Reports, released in 1990 and 1995, respectively, at <http://www.ipcc.ch/pub/reports.htm>, provided much of the scientific basis for the FCCC and the protocol.

23 For instance, the contribution of IPCC Working Group I to the Third Assessment Report had 122 lead authors and coordinating lead authors, 515 contributing authors, 21 review editors, and 337 expert reviewers; was reviewed by governments on a line-by-line basis; and was adopted by consensus. See Intergovernmental Panel on Climate Change, Working Group I, Climate Change 2001: The Scientific Basis: Technical Summary (2001), at <http://www.ipcc.ch/pub/wglTARtechsum.pdf>.

24 The National Academy’s report begins the summary of its findings with an unequivocal statement about global warming:

Greenhouse gases are accumulating in Earth’s atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise. Temperatures are, in fact, rising. The changes observed over the last several decades are likely mostly due to human activities, but we cannot rule out that some significant part of these changes is also a reflection of natural variability. Human-induced warming and associated sea level rises are expected to continue through the 21st century.

Committee on the Science of Climate Change, National Research Council, Climate Change Science: An Analysis of Some Key Questions 1 (2001), at <http://books.nap.edu/books/0309075742/html/>. The committee also stated that it “generally agrees with the assessment of human-caused climate change presented in the IPCC Working Group I . . . scientific report.” Id.

25 See Environmental Protection Agency, an Analysis of The Kyoto Protocol 13-20 (2001), at <http://www.epa.gov/globalwarming/publications/actions/us_position/bush_ccpol_061101.pdf>.

26 See FCCC, supra note 1, Article 4 (“Commitments”), where parties recognize in paragraph 2(a) the need to “return by the end of the present decade to earlier levels of anthropogenic emissions of carbon dioxide and other greenhouse gases” and articulate in paragraph 2 (b) the “aim of returning [these emissions] individually or jointly to their 1990 levels.”

27 The most recent report of the IPCC’s Working Group I, addressing the scientific explanation for global warming, concluded that” [t] here is new and stronger evidence that most of the warming observed over the last 50,years is attributable to human activities.” Intergovernmental Panel on Climate Change, Working Group I, Climate Change 2001: The Scientific Basis: Summary for Policymakers 10 (2001 ),at <http://www.ipcc.ch/pub/spm22-01>. at <http://www.ipcc.ch/pub/spm22-01.pdf>; see supra notes 22-24 and accompanying text. In the most recent of its periodic reports to FCCC parties, the United States acknowledges that

[g]reenhouse gases are accumulating in Earth’s atmosphere as a result of human activities, causing global mean surface air temperature and subsurface ocean temperature to rise. While the changes observed over the last several decades are likely due mostly to human activities, we cannot rule out that some significant part is also a reflection of natural variability.

U.S. Department of State, U.S. Climate action report 2002: The United States of America’s Third National Communication Under the United Nations Framework Convention on Climate Change 4 (2002), at <http://www.epa.gov/globalwarming/publications/car/>.

28 See S. Res. 98,105th Cong., 143 Cong. Rec. S8138 (1997) (adopted by vote of 95-0, specifying that “the United States should not be a signatory to any protocol to, or other agreement regarding, the United Nations Framework Convention on Climate Change of 1992, at negotiations in Kyoto in December 1997, or thereafter, which would . . . mandate new commitments to limit or reduce greenhouse gas emissions for the Annex I Parties [to the Convention, consisting of industrialized states], unless the protocol or other agreement also mandates new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period”).

29 FCCC, supra note 1, Art. 4, para. 1(b), (c).

30 See generally U.S. House of Representatives, Minority Staff, Comm. on Government Reform and Oversight, Five Myths About Developing Countries and Climate Change, at <http://www.house.gov/waxman/clim/gwfact7.htm>.

31 See, e.g., Chase, Steven, Meeting Kyoto Targets Will Cost Far Less Than Critics Predict, Report Says, Toronto Globe and Mail, Mar. 13,2002, at A8 Google Scholar(Dutch government report on cost of compliance by Canada); see generally Bodansky, Daniel, U.S. Climate Policy After Kyoto: Elements for Success (Carnegie Foundation for International Peace Apr. 2002)Google Scholar, at <http://www.ceip.org/files/pdf/Policybriefl5.pdf>.

32 Environmental Protection Agency, supra note 25, at 14.

33 See White House Fact Sheet: President Bush Announces Clear Skies & Global Climate Change Initiative (Feb. 14, 2002), at <http://www.whitehouse.gov/news/releases/2002/02/20020214.html>.

34 See, e.g., Singer, S. Fred Is Kyoto Dead? Wash. Times, May 6, 2001, at B4 Google Scholar; David, G. Victor, Piety at Kyoto Didn ‘t Cool the Planet, N.Y. Times, Mar. 23, 2001, at A19 Google Scholar.

35 See, e.g., WWF Climate Change Campaign, Analysis of the Bonn Political Agreement on the Kyoto Protocol, Approved on Monday 23 July and Adopted on Wednesday 25 July 2001 (July 27, 2001), at <http://www.panda.org/climate/final_deal.doc>, available at <http://www.panda.org/climate/victory.htm> (arguing that Bonn Agreements’ treatment of sinks “effectively reduc[es the global] emissions reduction target from 5.2% to 1.8%”).