Commitments of States Parties under the Climate Change Regime

It is the ultimate objective of the Framework Convention to stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the sIn addition to carbon dioxide, the concerned gases include nitrous oxide, methane, sulfur hexafluoride, hydrofluorocarbons, and perfluorocarbons. Other gases, such as chlorofluorocarbons (CFCs), also exhibit greenhouse effects but are controlled by the Montreal Protocol. As to the scientific and ethical dimensions of the effect of greenhouse gases, see Prue Taylor, An Ecological Approach to International Law: Responding to Climate Change, 1997, at 9 et seq.

'See the Preamble of the Framework Convention.

global biogeoch emical cycles in the climate system

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climate system.1" To achieve this objective the Framework Convention and the Kyoto Protocol formulate several obligations for states parties. Some of these obligations are of a procedural nature, others are of a substantive nature. These obligations are not the same for all states parties; the substantive ones involving emissions only apply to industrialized countries and other parties listed in Annex I of the Framework Convention. This differential treatment of states parties reflects the principle of common but differentiated responsibilities as referred to in the Preamble of the Framework Convention, which was also endorsed by the United Nations Conference on Environment and Development, 1992.

The Kyoto Protocol specifies the measures to be taken to achieve the objectives of the climate regime. These measures can be divided into two categories, measures that require certain actions and/or the adoption of particular policies, and flexible measures that may or may not be introduced.

The Framework Convention was only a first step toward international control and management of greenhouse gas emissions. Its Article 4, Paragraph 2(d), mandated a review of the adequacy of the measures that had been taken so far at the first Conference of Parties. At this Conference the parties decided that the commitments were inadequate to meet the Convention's ultimate objective. In consequence thereof, it was decided that it was necessary to strengthen the commitments of the Framework Convention through a protocol—the Kyoto Protocol.

According to Article 4, Paragraph 1 of the Framework Convention on Climate Change, all states parties are under an obligation to prepare national inventories of emissions and removals of certain greenhouse gases by sources and sinks. Parties are equally required under this provision to adopt programmes containing measures to mitigate climate change and to cooperate in controlling, reducing, or preventing anthropogenic emissions of greenhouse gases. Whereas these obligations apply to all states parties, the obligations under Article 4, Paragraph 2 of the Framework Convention only apply to industrialized states parties and several others.11 Thereunder these states parties are obliged to adopt policies and to take measures to mitigate climate change by limiting anthropogenic emissions of greenhouse gases and protecting and enhancing greenhouse gas sinks with the aim of returning, individually or jointly, to the 1990 levels of anthroprogenic emissions of greenhouse gases. They have further to report on the policies adopted and measures taken by them. Thus, there was an obligation of industrialzed states parties to reduce greenhouse gas emissions; however, no legally binding target was set.

The Kyoto Protocol establishes quantified emission limitation and reduction objectives for industrialized states parties and others (Annex I states parties) which are legally binding and a requirement for these states parties in implementing or further elaborating appropriate policies and measures to meet such targets. Apart from that, the Protocol mandates the advancement and implementation of certain commitments that pertain to all states parties of the

'"Article 2.

11 See Annex i.

Framework Convention. Non-Annex I states parties (developing countries) may, as a prerequisite for engaging in emission trade, voluntarily assume binding emission targets through amendment of Annex B.

According to Article 3 of the Kyoto Protocol, the industrialized states parties are under an obligation to ensure that their aggregate anthropogenic emissions of greenhouse gases12 do not exceed the amount specified in Annex B of the Protocol.13 The emission targets are listed as percentages of emissions levels in the base year, which is generally 1990.14 The targets range from an 8% reduction (European Community and its member States) to a 10% increase (Iceland).15 Within the European Community, use is made of the possibility opened by Article 4, Paragraphs 2(a) and (b) of the Framework Convention and Articles 3 and 4 of the Kyoto Protocol, according to which the parties are allowed to achieve the reduction in emissions individually or jointly. On this basis, the Community has developed an arrangement for distributing emission reductions among its members according to which an increase in greenhouse gas emissions for Ireland and Portugal is recommended while other members will have to achieve a decrease of more than 8%.

The Kyoto Protocol has further elaborated upon the general provision of Article 4, Paragraph 2(a) of the Framework Convention according to which states parties are to mitigate climate change by protecting and enhancing greenhouse gas sinks and reservoirs. This provision was inadequate; it was too vague to be implemented coherently by all states parties, else it could, eventually, due to the changing carbon sequestration capabilities of forests, favor states parties that had a deforestation policy in the past. As a general rule, sinks are not included in calculating the emissions of the base year; however, sinks are to be taken into account during the commitment period. According to Article 3, Paragraph 3 of the Kyoto Protocol, the states parties listed in Annex I must give an accounting of the afforestation, reforestation, and deforestation undertaken since 1990. This new accounting system makes it possible to provide for a reduction of greenhouse gases through increasing forests. However, those Annex I countries with net emissions from land-use change and forestry may include those emissions in their base year, which has the effect of correspondingly raising their assigned amount and allowed emissions.16 Using sinks as a means in the calculation and reduction of greenhouse gas emissions requires further research on the impact of land and forest use on greenhouse gas emissions. The

12 Listed in Annex A.

'-'There are some differences between this list and the original list of countries in the Framework Convention on Climate Change. For details see Clare Breidenich/Daniel Magraw/Anne Rowley/James W. Rubin, The Kyoto Protocol and the United Nations Framework Convention on Climate Change, AJIL 92 (1998), 315, at 320.

14 Article 3, Paragraph 7 of the Kyoto Protocol.

''These emission targets are the outcome of intensive negotiations. Several industrialized countries preferred uniform targets (European Community and its members), whereas others did not (Norway, Iceland, and Australia, for example).

''Article 3, Paragraph 7 of the Kyoto Protocol.

Conference of Parties will issue guidelines on this matter, which will have to reflect increased respective scientific findings.

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