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UN Framework Convention on Climate Change

In 1990, the Ministerial Statement of the Second World Climate Conference recognized the concept of climate change as a common concern of humankind, the principle of equity and the common but differentiated responsibility of countries at different levels of development, the concept of sustainable development, and the precautionary principle. The Ministerial Statement also called for the elaboration of a framework treaty on climate change and the necessary protocols. The Intergovernmental Panel on Climate Change (IPCC) had completed its First Assessment Report for the Conference, which later provided input for the first session of the International Negotiating Committee for a Framework Convention on Climate Change in 1991.[1] The UNFCCC opened for signature at the 1992 UN Conference on Environment and Development in Rio de Janeiro and entered into force in 1994. The 1992 Conference also produced the Rio Declaration, a set of 27 international environmental protection principles.

UNFCCC Article 2 sets out the “ultimate objective” of the Convention, and any related legal instruments that the Conference of the parties may adopt, as follows:

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

At the UNFCCC Conference ofParties (COP) 18, while the parties reiterated their determination to achieve the ultimate objective, they also reaffirmed that “adaptation must be addressed with the same priority as mitigation” and that “enhanced action and international cooperation on adaptation is urgently required.”[2] [3] [4] [5] It now appears increasingly unlikely that the ultimate objective of mitigation will be achieved.[6] Nevertheless, the ultimate objective still informs the interpretation of the UNFCCC and any related legal instruments that the Conference of the Parties may adopt. It should also inform the interpretation of international economic law, in particular provisions that set out exceptions for measures that are necessary to protect human, animal and plant life or health and to conserve exhaustible natural resources (including the climate itself).

UNFCCC Article 3 provides that, in their actions to achieve the objective of the Convention and to implement its provisions, the parties shall be guided, inter alia, by a series of principles. Article 4 is the source of the UNFCCC’s principal obligations. Article 4 sets out commitments, including GHG reductions, financing, and technology transfer. We analyze these principles and commitments in greater detail below, in the broader context of international environmental law and international economic law. Here, we simply provide an overview ofthe UNFCCC and related instruments.

The UNFCCC divides the parties into three categories, each of which is placed in a different annex to the Convention. Annex I parties include the industrialized countries and countries with economies in transition. Annex II lists the OECD members of Annex I and excludes the countries with economies in transition. Developing countries (non-Annex I) are the third category, and the least developed receive special consideration. Mitigation is the main focus ofthe UNFCCC and the Kyoto Protocol to the UNFCCC, but UNFCCC Articles 4.1, 4.3, and 4.4 address adaptation, and Article 12 of the Kyoto Protocol sets up an Adaptation Fund generated from a levy on clean development mechanism (CDM) projects to help the most vulnerable countries to meet the costs of adaptation. In addition, United Nations Development Program (UNDP) has developed an Adaptation Policy Framework. Moreover, the parties have increased adaptation activities, with the Cancun Adaptation Framework, an Adaptation Committee, a work program on loss and damage, and a national adaptation plan process for developing countries.[7]

The 1997 Kyoto Protocol set binding targets for 37 industrialized countries and the European Community to reduce GHG emissions. The initial commitments expired in 2012. Kyoto Protocol Article 3(1) expresses the central obligation in these terms:

The Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B and in accordance with the provisions of this Article, with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012. [8] [9]

Kyoto Protocol Article 3(9) provides that commitments for subsequent periods for Annex I parties be considered at the COP by 2006. At the 2012 COP, Australia and European countries extended their Kyoto commitments. The second commitment period runs from 1 January 2013 to 31 December 2020.[10]

Kyoto Protocol Article 3(14) requires each Annex I party to “strive to implement” its commitments in such a way as to minimize adverse social, environmental and economic impacts on developing country parties, and to consider issues such as the establishment of funding, insurance and transfer of technology.

The Kyoto parties can meet their targets through three market-based mechanisms: the carbon emissions trading market, joint implementation, and the clean development mechanism. The CDM allows industrialized countries to invest in projects that reduce emissions in developing countries as an alternative to domestic reductions. While 192 parties ratified the Kyoto Protocol, the United States did not, due to the absence of binding targets for developing countries and concerns regarding its economic impact.[11] [12] Canada withdrew from the Kyoto Protocol, effective 15 December 2012. Japan and the Russian Federation formally notified the secretariat that they do not intend to make commitments after 2012.11

The UNFCCC parties hold annual Convention of the Parties, at which progress has been painfully slow. In 2007, in Bali, the Kyoto parties launched the Adaptation Fund, and made progress on technology transfer and reducing emissions from deforestation. In 2009, the Copenhagen Accord made progress on emissions cuts, financing, and verification, but not on technology transfer. It also adopted a new deforestation program. However, it failed to create an international treaty or any binding emissions caps.

In 2010, the Cancun Agreements set emissions mitigation targets for 2020 for both developed and developing countries. The participating countries agreed to keep temperature increases below a global average of 2° C, having noted this goal in Copenhagen. They also established a “Green Climate Fund” to finance mitigation and adaptation to climate change, and new initiatives to protect tropical forests and to transfer clean energy technology to poorer countries. They also adopted the Cancun Adaptation Framework.[13] The most recent COPs took place in Durban

(2011) and Doha (2012). The Green Climate Fund is to balance the allocation of the resources between adaptation and mitigation activities. As of December 2012 the Green Climate Fund was not yet operational, but had received cumulative contributions of USD 4.298 million and cumulative pledges of USD 4.554 million for the administrative budget of the secretariat in South Korea.13

The most notable signs that the UNFCCC parties are not advancing quickly enough to address climate change are the failure to stabilize GHG emissions, the shrinking commitments of industrialized parties under Kyoto, the lack of commitments from major developing countries, and the unilateral measures that some parties have begun to take in response to the failures of the UNFCCC and Kyoto processes.

  • [1] UNEP, The Second World Climate Conference (accessed August 20, 2012).
  • [2] The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term
  • [3] Cooperative Action under the Convention, 1/CP.16, Report of the Conference of the Parties on its
  • [4] sixteenth session, held in Cancun from 29 November to 10 December 2010, FCCC/CP/2010/7/Add.1, March 15, 2011 (accessed December 29, 2012); Decision 1/CP.18, Agreed outcome pursuant to the Bali Action Plan,Report of the Conference of the Parties on its eighteenth session, held in Doha from 26 November to
  • [5] December 2012, Addendum, Part Two: Action taken by the Conference of the Parties at itseighteenth session (Advance version) (accessed April 4, 2013).
  • [6] 2
  • [7] 4 Potsdam Institute for Climate Impact Research and Climate Analytics, Turn Down the Heat: Whya 4 ° Warmer World Must be Avoided (World Bank, Washington 2012).
  • [8] Fabio Morosini, “Trade and Climate Change: Unveiling the Principle of Common but Differentiated Responsibilities from the WTO Agreements” (2010) 42 George Washington International LawReview 713.
  • [9] Decision 1/CP.18, Agreed outcome pursuant to the Bali Action Plan.
  • [10] Amendment to the Kyoto Protocol pursuant to its Article 3(9), Report of the Ad Hoc WorkingGroup on Further Commitments for Annex I Parties under the Kyoto Protocol, Draft decisionproposed by the President, Conference of the Parties serving as the meeting of the Parties to theKyoto Protocol, Eighth session, Doha, November 26—December 7, 2012, FCCC/KP/CMP/2012/L.9, December 8, 2012 (accessed December 28, 2012); Roger Harrabin, “UN climate talks extend Kyoto Protocol, promise compensation,” BBC News, December 8, 2012 (accessed December 28, 2012).
  • [11] Morosini, “Trade and Climate Change.”
  • [12] Amendment to the Kyoto Protocol pursuant to its Article 3(9).
  • [13] The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-termCooperative Action under the Convention, 1/CP.16, Report of the Conference of the Parties onits sixteenth session, held in Cancun from November 29 to December 10, 2010, FCCC/CP/2010/7/Add.1, March 15, 2011 (accessed December 29, 2012); Robert N. Stavins, “Why Cancun Trumped Copenhagen:Warmer Relations on Rising Temperatures,” The Christian Science Monitor, 20 December 2010
 
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