The Future Negotiating Structure of the UNFCCC and the Kyoto Protocol: Issues for COP 6

This paper highlights key elements of the structure for future negotiations contained in the UN Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol. It considers some issues of particular relevance to the Sixth Conference of the Parties (COP 6), which takes place in The Hague from 13-24 November 2000.

The paper notes that as the Kyoto Protocol requires industrialised countries to make demonstrable progress by the year 2005, an agreement on implementation of the Protocol at COP 6 needs to be able to result in such progress. It urges the EU to maintain a strong negotiating position.

First, the paper provides an overview of key provisions. It then addresses the link between demonstrable progress in 2005 and COP 6. The paper considers the objective of the UNFCCC and the Kyoto Protocol, reviews of the adequacy of commitments and reviews of implementation. The paper concludes with brief general observations.

The relevant provisions in the UNFCCC and the Kyoto Protocol are not yet fully developed, but they provide the main building blocks for a structure for reviewing and developing the régime. The key provisions include:

• The requirement in Article 3.2 of the Kyoto Protocol that ‘[e]ach Party included in Annex I shall, by 2005, have made demonstrable progress in achieving its commitments under this Protocol’.

• The review of the adequacy of the commitments under the UNFCCC, as outlined in Article 4.2 (d). This provision requires the Parties to decide, at regular intervals, whether the existing commitments are adequate. As noted below, reviews under the UNFCCC and the Protocol are to be coordinated. Review of adequacy differs from review of implementation, as it focuses on whether existing commitments are adequate (are the targets strong enough?), not on how the commitments have been implemented (have Parties done enough?).

• Review of implementation. Article 7 states that the COP is to keep the UNFCCC and any related legal instruments under regular review, outlining specific tasks in this respect. The reference to related legal instruments explicitly extends the COP's oversight role to the Kyoto Protocol. In addition, Article 4.2(b), which requires Parties to provide detailed information on policies and measures in national communications (with reference to Article 12), states that this information will be reviewed by the COP in accordance with Article 7. Two components can be distinguished here, one that relates to a general overview role and another one that relates specifically to review of national communications.

• Review of the Kyoto Protocol under Article 9 of the Protocol. These reviews are to be coordinated with reviews under the UNFCCC, in particular those required by Article 4.2(d), and Article 7. 2(a) of the UNFCCC. The latter relates to the broad overview role of the COP.

The determination of whether Annex I countries have made demonstrable progress in achieving their commitments by 2005 will be a critical moment for the Kyoto Protocol. The outcome of COP 6 on rules for implementation of the Protocol will need to be able to pass this test.

Article 3.2, which sets out the requirement that Annex I Parties must have made demonstrable progress by 2005 follows immediately after the provision (Article 3.1) which states that emissions reductions by Annex I Parties under the Protocol aim at reducing overall Annex I emissions by at least 5 per cent below 1990 levels in the first commitment period. This reinforces the conclusion that a main criterion for determining if demonstrable progress has taken place must relate to reducing overall emissions in Annex I countries by a minimum of 5 per cent. This requires a clear downward emissions trend by 2005.

It is appropriate to begin defining specific criteria for assessing demonstrable progress after COP 6. Parties will need to consider carefully how these criteria should relate to decisions that may be reached at COP 6 on issues such as carbon sinks and the Kyoto mechanisms. The concept of demonstrable progress ('real' progress) would not seem to be compatible with excessive reliance on carbon sinks. A key criterion, or set of criteria, should relate to ensuring that Annex I countries have made progress in terms of policies and measures (ie domestic action).

Reviews that take place prior to 2005 should build towards the decision on demonstrable progress. Demonstrable progress relates mainly to review of implementation. Information provided through national communications should inform consideration of demonstrable progress, but the determination of whether demonstrable progress has been achieved is a separate decision, distinct from those related to national communications.

The consequences of a finding that demonstrable progress has not taken place may need consideration. The main implication of lack of demonstrable progress would seem to be that extremely urgent action, in the form of deep emissions cuts, would be required in the years remaining to the first commitment period. Some consideration of how this might be achieved may be valuable prior to 2005.

Determination of whether demonstrable progress has taken place, and all other review processes, must be guided by the objective set out in Article 2 of the UNFCCC:

‘… to achieve ... stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system ... within a time-frame sufficient to allow 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 manner.’

According to its wording, Article 2 sets out the objective of the UNFCCC and of any related legal instruments. Consequently, Article 2 is also the objective of the Kyoto Protocol.

The review of the adequacy of commitments is a central mechanism for the developing framework of the climate régime. The first review of adequacy, at COP 1 in 1995, led to adoption of the Kyoto Protocol.

Article 4.2(d) of the UNFCCC states that ‘… a second review … shall take place not later than 31 December 1998 … ‘. The same Article states that subsequent reviews are to take place ‘… at regular intervals determined by the Conference of the Parties, until the objective of the Convention is met’. Parties need to keep reviewing the adequacy of the commitments until climate change has been reduced to a safe level. As noted, Article 9 of the Kyoto Protocol confirms that reviews under the Protocol are to be coordinated with reviews under the UNFCCC.

Parties have failed to take a decision on the second review of the adequacy of the commitments, mainly because of the insistence of some Parties on linking this decision with increased commitments for developing countries. The UNFCCC clearly requires the Parties to have taken a decision in 1998. It would seem desirable to take this decision as soon as possible. A brief decision, which need be no more than a formality, should be possible. The intervals for subsequent reviews could be determined later, although one review of adequacy should be timed to respond to the IPCC's Third Assessment Report (TAR), due in 2001.

The immediate issue related to review of implementation is the failure of the COP to act on the findings of its own reviews of national communications. The Parties have repeatedly confirmed that Annex I countries are not on track to stabilise emissions.

As noted, Article 4.2(b) of the UNFCCC, together with Article 12, requires Parties to provide national communications, stating that this information will be reviewed by the COP in accordance with Article 7. One might say that the COP has undertaken the reviews. However, the current situation in Annex I countries is clearly not satisfactory, which means that a response by the COP is needed, not simply a finding that the Parties are not on track. This response has not taken place.

Although not an ideal solution, the Multilateral Consultative Process (MCP) could, in the absence of other mechanisms, provide an institutional structure for addressing implementation challenges in Annex I countries as a group. The COP, or even a Party, could trigger the process, and the Multilateral Consultative Committee could then provide ‘advice on assistance to Parties to overcome difficulties encountered in their implementation of the Convention’. However, this would seem to involve a departure from what was originally intended.

Another route is Article 7, which gives the COP the broad oversight role for assessing implementation and the extent to which progress towards the objective is being achieved. One possibility relates to policies and measures. Article 4.2(a) of the Convention requires Parties to adopt policies and measures and states that '[t]hese … will demonstrate that developed countries are taking the lead in modifying longer-term trends in anthropogenic emissions …'. Further provisions in the UNFCCC and Kyoto Protocol reinforce the role of policies and measures.

In addition to reviewing national communications, the COP could establish a mechanism for consideration of Annex I countries’ policies and measures. This could serve as a process for information exchange, learning and confidence-building. Provisions that offer a basis for this include Article 7.2(b) of the UNFCCC, which states that the COP is to promote and facilitate the exchange of information on measures adopted by Parties. Article 2.1(b) of the Kyoto Protocol requires Annex I Parties to cooperate to enhance the individual and combined effectiveness of their policies and measures. The Parties to the Protocol are to consider ways of facilitating such cooperation. Article 2.4 of the Protocol also foresees the possibility that the Parties may consider ways and means of elaborating the coordination of policies and measures.

The negotiating framework set out in the UNFCCC and the Kyoto Protocol provides an excellent basis for future development of the climate régime. It is firmly rooted in the principles that underpin the UNFCCC and the Protocol, in particular the principle that industrialised countries must take the lead - and in 2005 must show demonstrable progress - in combating climate change.

The provision that requires Annex I countries to show demonstrable progress, linked to the achievement of an overall 5 per cent reduction in Annex I emissions, sets a limit on how far the 'loopholes' in the Kyoto Protocol can be stretched at COP 6.

The EU has taken a determined public stand in recent months, with a strong position on issues such as carbon sinks. Although it faces considerable implementation challenges, the EU's commitment to addressing climate change provides it with a sufficient platform for asserting a leading international role in the climate negotiations. The test will come in the final negotiations at COP 6. It is highly desirable to reach an agreement that as many countries as possible, including the US, can accept. However, the desirability of wide participation in the Kyoto Protocol must not override the need to safeguard the credibility of the Protocol.

In particular, the EU must not make major compromises without real concessions from the US and its allies. The demands made by the US, such as unfettered use of the Kyoto mechanisms, would seriously undermine the climate régime. Although the primary goal of international negotiations must be to reach agreements that are acceptable to all those concerned, there are circumstances in which the position of a negotiating partner means that a compromise would be incompatible with the fundamental objectives that the negotiations are meant to achieve. In The Hague, no agreement may be better than a bad agreement.

Joy Hyvarinen
Research Fellow
Institute for European Environmental Policy (IEEP)
Dean Bradley House
52 Horseferry Road
London SW1P 2AG, UK
Tel: 44-(0)20-77 99 22 44
Fax: 44-(0)20-77 99 26 00
E-mail: jhyvarinen@hotmail.com or jhyvarinen@ieeplondon.org.uk

| About us | Home | SDI Home |

© Copyright and Fair Use . SDNP Bangladesh holds the © copyright to its publications and web pages but
encourages duplication of these materials for noncommercial purposes. Proper citation is required. 
Sustainable Development Networking Project (SDNP)
E-17 Agargaon, Sher-e-Bangla Nagar, Dhaka-1207, Bangladesh. Email: info@sdnbd.org